Zombie Titles - albatross mortgages around homeowners' necks

Reuters reports on a little-known feature of the mortgage crisis -- the zombie title. Michelle Conlin, writing from Columbus, Ohio, tells a hair-raising story about home-owners who receive notice from their banks that the bank is foreclosing on their home for a delinquent mortgage. The home-owner leaves the home, and believes that that is the end of the story for them and this house.

Apparently, a number of banks are not following through with selling these foreclosed properties. They either do not notify the home-owner, or the home-owner fails to receive the notice, for whatever reason. But the home-owner's name continues to be on the deed, on the tax records, on all the legal documents. So when the county sends a notice that the property is becoming derelict, the home-owner is liable. When the taxes are due and over-due, the home-owner is liable. And -- surprise! -- the mortgage payments are still due... and piling up with interest and penalties. All happening without the home-owner's realizing they are responsible for anything about the property.

The Reuters report includes some heart-rending examples of how people's lives are being devastated. This is not happening all the time, but often enough that some agency or lawyer should be looking at either a cause of action or some regulatory action. The report mentions that out of some 10 million mortgage foreclosures, 2 million have not come out for various reasons, including the banks simply dropping the mortgage action, as with these zombie titles. The report goes on the say that housing court judges are seeing thousands of these zombie title issues across the country, and that the number seems to be rising.


The home-owner who has the zombie title cannot qualify for disability, because the title to the phantom house appears to be a capital asset. Home-owners find

wages garnished, their credit destroyed and their tax refunds seized. They've opened their mail to find bills for back taxes, graffiti-scrubbing services, demolition crews, trash removal, gutter repair, exterior cleaning and lawn clipping. At their front doors they've encountered bailiffs brandishing summonses to appear in court.

In some cities, people with zombie titles can be sentenced to probation - with the threat of jail if they don't bring their houses into compliance.

Banks have realized that holding the asset or trying to sell the mortgaged house actually saddles them with a loss. Thus, they are often quietly stopping all action towards the sale of the property after beginning the foreclosure effort. Homeowners too often expect the banks to act as they used to, and assume the bank will put the house up for auction to satisfy the outstanding debt on the mortgage. But banks have realized that by walking away from the debt, they often gain more by filing for insurance on the debt, and avoid all the costs and responsibilities of owning the property. But if they do not properly notify the mortgagee, a zombie title results. Reuters says there is no regulation requiring banks to notify the home-owner, and so it often does not happen.

A number of cities have attempted to create registries of abandoned houses to try to force the mortgagors to take more responsibility for the properties they seize. Neighborhoods become blighted as the properties are gutted by vandals, and the banks or other mortgage servicers claim they have no responsibility to manage or maintain the properties. These organizations have opposed the registries proposals, according to the Reuters report.

Tip of the OOTJ hat to my terrific, peripatetic daughter for pointing me to this story.
The decoration for this post comes from a clever and entertaining blog, The Rules Lawyers, "Applying the Supreme Court's rules of statutory interpretation to resolve Warhammer 40K rules disputes" http://www.theruleslawyers.com/2012/10/6th-edition-rulings-plague-zombies-unit-size-limits/

Copyright Martyr: RIP Aaron Swartz

Aaron Swartz was somebody who helped code some important pieces of the modern Internet: RSS and Reddit, and, having cashed out at an early age, became an activist for making information public. He put a good deal of his own money into the development of RECAP, for instance. He also launched Demand Progress to help stop the SOPA and PIPA bills in Congress which were copyright protection/anti-piracy bills that would have crippled the Internet.

But when Mr. Swartz downloaded a huge number of JStor documents illegally from MIT's libraries onto a laptop hidden in a closet, the U.S. Justice Department decided to prosecute the copyright violation to the full extent of the law. While Swartz's lawyer attempted to negotiate a plea down to a misdemeanor, the prosecutors insisted on a felony charge with 35 years of prison time and a huge fine. The inflexible attitude of the prosecutors was notable and puzzling to those watching the matter unfold.

Friday, Aaron Swartz hanged himself at his Brooklyn apartment. Friends and family blame not only the prosecutors but also MIT and JStor, which did not push the prosecutors to back off. Many friends and admirers have posted comments and memories. Aaron Swartz was only 26.

Maybe it's time to discuss the attitude about copyright infringement.

More about e-books

All this chat about e-books is specially of interest because I have just been chatting with several publishers of e-books for legal casebooks, Foundation Press and CALI, here at the AALS conference in New Orleans. I also recently saw a demonstration about the H2O publisher for e-case books from the Berkman Center at Harvard. H2O and CALI's E-Langdell series are free to students, open source books that can be freely edited by adopting professors, which make them truly unusual and very interesting.

But I understand that at least the Foundation Press folks seem to be having an uphill battle with adoption. They charge for their books, though I am not sure if they charge the same rate for the e-case book as for a print book. By now I am a little unclear what model they are using, since I had a long conversation with two different people about their books. I think they may be leasing the books to students who then keep the book for a 6 month or year period. The book is thus less expensive and the lease period is like selling the book back to the bookstore (except that you "get the money back" up front by not paying as much in the first place.")

I understand one of the problems is getting professors to remember to specify to the bookstores that e-book version is an option when they send in their book orders to bookstores each semester. It would save students money to specify that Prof. Bruntwhistle is requiring Earwhig on Taxation of Bedsprings because the bookstore would stock a mix of the print and e-books and students could choose which to purchase.

But CALI does not seem to be having such a problem with adoption or at least with downloading of the free E-Langdell materials. At least at the CALI business meeting, John Mayer sounded very positive about the number that had been downloaded in 2012. I have no way to compare CALI's sales to Foundation Press's. H20 is so new, there is really no comparison. It's very interesting that they plan to cooperate with CALI to the extent that both groups will feature the other's e-books.

But the question still remains whether law students really will want to use e-casebooks. I carefully noted that these all included capabilities that had seemed important when I spoke some years ago with Lyonette Louis-Jacques, about what was missing from e-case books then:

Navigation
* ability to page backwards and forwards
* hyperlinks from a table of contents and/or index
* bookmarks
* ability to search text for notes or terms

Interactive and Personalization
* ability to make notes and highlight text
* ability to cut and paste from the text into Word or other outlining software
* ability to share notes

Security and Portability
* Can be read on multiple types of platforms, including mobile
* Can be saved in the cloud, not just on the reading device
* Is there DRM?

From the Professor's point of view:
* Can the book be edited, mashed up with others, changed, updated by ME?

From the Students' point of view:
* How much does it cost? (or is it FREE?!)

Code Nerds Chat about E-books on SlashDot

Here is a interesting post on Slashdot about "Death of Printed Books May Have Been Exaggerated." The post refers to Nicholas Carr's blog post "Will Gutenberg Laugh Last?" at his blog, Rough Type. I was interested in the Slashdot crews' comments about the post there, as much as the original report on Nicholas Carr's blog post. The SlashDotters' comments ranged from discussing their own preferences for print or digital (and they felt strongly both ways), to comments on how the e-books digital rights management (DRM)(like Amazon's Kindle and Apple) create a "closed ecosystem" and, some felt, manifest greed. A few others pointed out that authors do not necessarily ask for such DRM and can, in fact, opt out of it in some publishing schemes. Others pointed out a few projects on open source e-books. I particularly liked this succinct analysis of "dead tree" books:

They don't need batteries
You can buy them used without DRM
They smell interesting
Old books have their own story aside from what is printed in them
Each book feels different
Do not require infrastructure to maintain
I don't have to buy something to reads my book- I just buy the book, the "reader" is free.

Posted on New Year's Day, 2013, Carr refutes his earlier post reporting on a Pew Internet Study that e-book purchases had risen and assuming that print reading was declining. However, Carr found newer data that showed the opposite trend, and also read more deeply in the Pew study and thought it showed different outcomes:

the printed book remains, by far, the preferred format for American book readers. Fully 89 percent of them report that they read at least one printed book over the preceding 12 months. Only 30 percent say they read at least one e-book — a percentage that, perhaps tellingly, has increased by only a single point since last February, when the survey was last conducted. The study did find that the percentage of American adults who read e-books increased over the past year, while the percentage that read printed books fell, but the changes are modest. E-book readers rose from 16 percent to 23 percent, while printed book readers declined from 72 percent to 67 percent.

Carr also reports that various U.S. publishers were reporting drops in sales of e-books and rises in sales of print books, though apparently the reading devices are selling well. Carr speculates on possible reasons:

1) E-books may be more suited to some types of reading than others, and perhaps work best as a complement to print rather than an outright substitute; He also recognizes e-books are ideal for certain situations, like plane trips;

2) Early adopters have already made their move to e-books and the remaining population has no interest in moving to digital -- he quotes a report by the publisher Bowker in a publishing news article;

3) Advantages of print have been underrated, while the advantages of e-books have been overrated;

4) Early purchasers of e-readers quickly filled them with lots of e-books and are still working on the backlog;

5) The shift from e-readers to tablets is depressing sales of e-books because tablets can do so many other things;

6) E-book prices have not fallen as much as expected

(and Carr updated his post with a link to a Wall Street Journal article about print vs. digital books in which he asserts more boldly that print is here to stay.)

Same Sex Nuptials Start the New Year in Maryland

Marylanders rang in the New Year with same sex marriage becoming legal. Maryland is the first state south of the Mason Dixon line, and one of the first to pass gay marriage rights legislatively. Congratulations to all those who will enjoy equal rights in marriage (and divorce) in the coming years in Maryland!

Empirical study of legal services

The Boston Globe Ideas section today (December 23, 2012) has an interesting article about Harvard Professor James Greiner who is doing empirical studies on the efficacy of providing free legal services to poor people who otherwise would have no representation. It makes legal services attorneys and friends of legal services kind of nervous in a lot of ways. But he is actually a supporter of legal services. He just wants to be sure the money and services are going where they will do the most good.

Greiner's first research effort examined the clients of the Harvard Legal Aid Bureau who were represented in their unemployment insurance claims. His findings were reported in the Yale Law Journal, and discussed in the Yale Law Journal Online, "Service Delivery, Resource Allocation, and Access to Justice: Greiner and Pattanayak and the Research Imperative," by professors Jeffrey Selbin, Jeanne Charn, Anthony Alfieri & Stephen Wizner. Basically, his first study found that the clients were no better off, and had to wait longer for their cases to be resolved when they were represented by Harvard Legal Aid Bureau. Apparently, Greiner has gone on since this first study to examine the effects of legal assistance in other types of cases, and it varies, which is interesting. He has completed a study that showed that representation in eviction cases made it more likely that a client would prevail. Greiner has three other studies in process now: divorce, social security disability benefits, federal prisoners making civil rights complaints.

In all the discussion I saw in the Globe article and in the scholarly discussions in the Yale publications, one aspect I did not see touched on was whether representation of clients assisted the courts. I know from conversations I have had with court librarians that the courts get jammed up with self represented litigants. Judges who have to deal with cases involving self represented litigants end up spending much more time explaining civil procedure and rules, and generally offering assistance to them. It slows the entire law suit down and can make settlements much more difficult. Anything that can assist the self represented litigant to prepare better before getting to the court room would speed the process along, and help the courts. Not all self represented litigants are poor and unable to afford a lawyer. Some simply do not like or trust lawyers and prefer to handle their case by themselves. But whatever the reason they are self representing, they are at a disadvantage in terms of all the rules of procedure, and evidence that lawyers had to learn in law school. And there should be some way to offer assistance to the literate pro se litigant.

Little Free Library

I only just heard about Little Free Library, a project that anybody can set up to share books for free. They often look almost like bird houses with books in them. I think it's a lovely idea, and it just made me smile. They have a map that shows how these little boxes for books have been set up all over the world. I clicked on icons to look at the Little Free Libraries in Pakistan and Poland, England, France, Canada and some of the zillions of them across the United States where they are so thick you cannot just click on a single icon.

I hope you enjoy the website!

The image decorating this post is from the Little Free Library website where you can order boxes pre-made like this one or many other styles (http://www.littlefreelibrary.org/order.html, but many people obviously make their own.

Need a cheer-up boost? Dewey B. Strategic's Thanksgiving post

Aww, that was NICE! Here is the link to a very nice meditation on how law librarians have been helpful to practicing lawyers. Guest blogger Phil Rosenthal, late of Covington & Burling, now with FastCase, tells why associates should get to know their firm library -- assuming it still exists!

Kind of like a Valentine for Thanksgiving... image courtesy of an Etsy site that had this "vintage" card for sale, once upon a a time. http://www.etsy.com/listing/102604843/vintage-greeting-card-valentine-turkey I think you can find anything on the Internet, sometimes.

The ITU Showdown is looming

Reuters and the British Guardian have covered the looming showdown at the ITU in Dubai... I wonder why we aren't hearing more about this in the U.S. press?

Really, do YOU want Vladimir Putin and the imams in Iran to make decisions behind closed doors about access to the Internet?

You can go here to send your signature to the U.S. government asking them to oppose the changes. There is also a video that explains more about the ITU and what is planned at the upcoming meeting in December! See my earlier blog post about the modifications to the Internet Telecommunications Regulations.

Tip of the OOTJ hat to my terrific colleague Roy Balleste for alerting me!

Secession Movement - has it peaked?

Geez, what is it with us Americans?! When we get upset with an election result, or don't like how things are going, our first impulse often seems to be: Let's leave! In 2003, a group of Vermont citizens formed a secession group, the Second Vermont Republic. The Florida Keys ostensibly seceded in 1982 to form the Conch Republic which exists through an annual parade and this website. Texas' current governor, and erstwhile presidential candidate Rick Perry, has asserted that state's right to secede. The link to the Rick Perry quote (from 2009) includes a fact check that tells us that the 1845 compact where Texas entered the Union as a state included an agreement that Texas could split into five states, not that it had a special agreement that it could seceded if it didn't like being part of the U.S. In fact, our blogger, R.G. Ratcliffe, at Chron, tells us that the U.S. Supreme Court in 1869, ruled that Texas did NOT have a right to secede, in the case, Texas v. White, 74 U.S. 700 (second link for full text from Justia; link on the name of the case is to the Wikipedia article about the case for an explanation).

But all that is historical background to say that secession is not just very current events. Because there has been a flurry of petitions on the Whitehouse.gov website, President Obama started a link for petitions to allow an interactive way for the American people to contact the Whitehouse. The commitment has been that there would be a prompt response to any petition gathering more than 25,000 signatures. Since President Obama's re-election, there has been a flurry of petitions from citizens of various states asking to secede. This is, if you think about it, a totally ridiculous and non-legal way to go about beginning a secession movement. It's not really about secession, but about dissatisfaction. There are a number of ludicrous topics. If you sort the petitions by government reform, you will pop up the secession petitions as well as in-your-face challenges asking the President to step down from office for no reason, to allow examination of his birth certificate (again!) as well as his college and university records. But the numbers of people signing the state secession petitions is interesting. They are not necessarily citizens of the state involved.

Here is a fascinating map created by a professor and class at the University of North Carolina examining the signatures on the petitions and calculating the percentages of the population for each state signing such petitions. The notes there say that the numbers seem to have peaked and not be growing much any more.

There are bloggers who assert that the petitions are purely racist and would not have happened were there not an African American man in the Whitehouse. While some of these petitions seem very ad hominem and personal, possibly racially motivated, it's quite clear that there were secession movements before President Obama was elected, and that they crop up for a wide variety of reasons. Some are quite openly racially motivated, and not aimed at President Obama, such as the Northwest Front which plans to take Oregon, Idaho, Washington state and part of Montana to create a homeland for white or Aryan people to live in. It's hard to tell from their website when this movement began, but I presume it predates Obama's presidency. On the other hand, the Conch Republic began when the state police blockaded the single road that connected the Florida keys with the main body of Florida. The Vermont Second Republic seems to have sprung from the trauma of 9/11. There is a very nice survey in the Wikipedia article on Secession Movements in the United States on more secession movements than you can shake a stick at.

The flag with the cut-up snake is from Revolutionary War era American, with a slogan from Benjamin Franklin: Join or Die. Still a pretty good motto. Courtesy of Wiki Commons. http://en.wikipedia.org/wiki/Join,_or_Die