Heisei 20(kyo)21, Second Petty Bench

Reviewing Osaka High Court's decision in Heisei 20(ra)346 on April 10, 2008.

Summary: Plaintiff filed this lawsuit in Osaka District Court to recover (disgorge) amounts allegedly overpaid on a loan contract. The loan contract had a choice-of-forum clause giving exclusive jurisdiction to Osaka Summary Court. The District Court denied Defendant-lender’s motion to transfer to Summary Court.

Held: When a case belonging to the exclusive jurisdiction of a Summary Court is filed instead to a District Court whose jurisdiction encompasses that area, the District Court has reasonable discretion to deny Defendant’s motion to transfer to the Summary Court. The District Court can consider a broad range of circumstances, including not only whether transfer would cause excessive delay, but additional factors as well.

Decision here.

]]> http://renvoi.wordpress.com/?p=63 Mon, 21 Jul 2008 17:09:14 +0000 renvoi http://renvoi.wordpress.com/?p=63 The requirement for proving foreign law via expert evidence, and a presumption of similarity to lex fori in the absence of such evidence, has been trite law for some time. However, as the decision of Mr. Justice Matsuhara in Seidel v. Telus Communications Inc., 2008 BCSC 933 shows, at least part of this triteness is that no one has bothered to assail this proposition. In Seidel, the plaintiff, seeking the court’s conclusion that the law of Quebec on the subject of arbitration and certification of class action proceedings was substantially different from that of BC, argued that expert evidence on the law of Quebec is unnecessary and inadmissible. She argued that the court was qualified to consider Quebec law, particularly its statutory scheme, without additional help.

Unsurprisingly, the court disagreed with this assertion. Instead, it proceeded to analyze the question of admissibility via the principled approach to expert evidence from R. v. Mohan, focusing on necessity. The court took into account that foreign law has traditionally been proven by expert evidence, that Quebec law, under its civil tradition, is statutory; that under s. 24(2)(e) of the B.C. Evidence Act, the court must take judicial notice of statutes of other provinces; and that a judicially noticed fact is not open to rebuttal (R. v. Spence). The resolution of this dilemma lay in the conclusion that there is a difference between judicially noticing the existence of a foreign statute, and receiving expert evidence on its meaning and effect within that legal system. As Matsuhara J. concluded at para. 24:

It would be audacious of me to conclude that simply because I can read the translations of the provisions of the Civil Code I have the capacity to fully understand and interpret the meaning of such provisions. In other words, this is information that is “outside of the experience the trier of fact”, which makes expert evidence necessary.

As a not-so-long-ago law student, I find that it is always useful to find a case expounding on an otherwise trite principle of law and confirming its validity via principled analysis.

12 Although the characterization of the rule in Foss v. Harbottle for conflicts of law purposes was not discussed by the court below, it is implicit in Ross J.'s reasons and in counsel's arguments that the rule is a procedural one and that therefore the lex fori applies to determine a shareholder's standing to sue. This was the view taken in Heyting v. DuPont, [1964] 2 All E.R. 273, 1 W.L.R. 843 (C.A.), where a shareholder of a Jersey company sought to sue, in England, a corporate director for misfeasance. At the outset of his reasons, Russell L.J. said this:

This appeal is from a decision of Plowman J. that a claim, asserting liability of a director of a Jersey incorporated limited liability company, to the company for damages for misfeasance, could not be put forward by a shareholder suing on behalf of himself and shareholders other than the allegedly liable director, who held the majority of shares and could therefore control a vote on whether the company should be a plaintiff in such a claim. It thus appears that the question is whether this is a case in which a departure from the rule in Foss v. Harbottle is required. I dare say that the rule in Foss v. Harbottle is a conception as unfamiliar in the Channel Islands as is the Clameur de Haro in the jurisdiction of England and Wales. But clearly this is a matter of procedure to be decided according to the law of this forum. [At 848; emphasis added.]

13 Although this reasoning was questioned by one writer (see Anthony Boyle, "A Liberal Approach to Foss v. Harbottle" (1964) 27 Mod. L. Rev. 603), the same author in a later article ("The Shareholders' Derivative Action in the English Conflict of Laws" (2000) Eur. Bus. L. Rev. 130) retreated from his previous position and agreed that "... the principle of the company as the proper plaintiff (even if it rests upon the concept of corporate personality) should probably be regarded as procedural. Certainly the conditions that govern the use of the derivative actions are essentially procedural." (At 131.) In Canada, although the matter is not free from doubt, the better view would appear to accord with Heyting v. DuPont. (See, e.g., Baniuk v. Carpenter (No. 2) (1987) 85 N.B.R. (2d) 385, at 393-4, 217 A.P.R. 385 (C.A.) and Teck Corp. v. Millar, [1973] 2 W.W.R. 385 at 388-9, 33 D.L.R. (3d) 288 (B.C.S.C.), at para. 13; cf. King v. On-Stream Natural Gas Management Inc., [1993] B.C.J. No. 1302 (S.C.) (QL) at para. 67.)

While the conclusion reached does not appear to be particularly controversial, it is always useful to have recent and persuasive authorities restating an old rule.

In Warren, shareholders were suing their corporation and its directors for misrepresentation in its share offer. While some of the plaintiff shareholders resided in Alberta, the defendant company was federally incorporated and operated in BC. As is common in such cases, the court was asked to decide whether to allow ex juris service, whether Alberta had jurisdiction simpliciter, and whether Alberta was forum conveniens.

In Alberta, ex juris service is governed by R. 30 of the Alberta Rules of Court, and R. 30(h) allows ex juris service when the action involves a tort a committed in the province. Martin J. explained that it in a misrepresentation action it does not matter where “a party may have learned that the representation was inaccurate”, but only where the offer containing the misrepresentation was made. Thus, she concluded that “the alleged tort of misrepresentation may have been committed in Alberta”. I note the use of “may have” as an implicit indication that the plaintiff needed only to establish jurisdictional facts on an arguable case standard without conclusively proving them (see discussion of Purple Echo).

Considering whether the court has jurisdiction simpliciter over the dispute, Martin J. went on to apply the eight-factor Muscutt RaSC test, imported into Alberta law in Royal and Sun Alliance Insurance Company of Canada v. Wainoco Oil and Gas Company,2004 ABQB 643. Considering inter alia that the offer was received in Alberta, that a third of the shareholders of the defendant company lived in Alberta, and that the federally incorporated company was “for the purposes of conflict of laws … domiciled throughout Canada”, Martin J. concluded that RaSC was established and Alberta court had jurisdiction simpliciter.

Having won on the ex juris service and RaSC issues, the plaintiff ultimately lost on forum non conveniens. Applying the customary factors dealing with relative convenience of the action in Alberta and B.C., Martin J. concluded that B.C. is clearly a more appropriate forum. “[M]ore immediate jurisdiction over the British Columbia parties, documents, witnesses and property” and “the nature and extent of both the interim and final relief sought by the Plaintiffs” militated towards B.C. The B.C. centric relief was “an interim and permanent order to restrain any further implementation of the Rights Offering, accounting of shares and proceedings, right of inspection of the books and records of ABC, removal of directors and voting rights, appointment of a receive-manager of ABC, transfer of the lands under the lodge, issuance and surrender of shares, enforcement of use rights, among other requested remedies.

Q. 823 was originally a question about producing pharmacy records. Apparently when the request was made, the pharmacy only had computer records going back to 2001. There was a follow up question as to when the request was made. Q. 945 asked for a microbiological report which is not available. The question is asked as to whether the document did exist and if it was destroyed, when that occurred and when did the plaintiffs first take steps to preserve the evidence? These follow up questions, if they are relevant, are relevant only to an argument that an adverse inference at trial should be drawn if it appears the plaintiffs did not take adequate steps to preserve available evidence once litigation was contemplated or when it first became apparent that this evidence might be relevant. There are certainly circumstances in which compliance with litigation holds or compliance with undertakings may make it relevant if a party has been so slow in complying with its obligations as to give rise to a spoliation inference or sanctions for what in the United States is sometimes described as "purposeful sluggishness". There is no evidence before me to suggest this is the case here and I decline to exercise my discretion by ordering this question to be answered.

Andersen v. St. Jude Medical Inc., [2008] O.J. 2452 (S.C.J.) (QL).

The facts are simple. The plaintiff (resident of SK) bought some metal sheeting from the defendant (resident of Ontario); wrong type of sheeting was delivered; the plaintiff suffered damages. The court, relying on the Saskatchewan’s version of the CJPTA, had to determine whether there was a RaSC between Saskatchewan and the facts. Although the action was in breach of contract rather than in tort, Mills J. relied on Morguard for the proposition that the damage-based jurisdiction over manufacturers stemming from Moran v. Pyle, [1975] 1 S.C.R. 393 (no free link?) is equally applicable to contracts cases:

[Moran v. Pyle]

By tendering his products in the market place directly or through normal distributive channels, a manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods.   . . .

[Morguard]

49 The above rationale is not, as I see it, limited to torts. . . . In particular, barring express or implied agreement, the reasoning in Moran is obviously relevant to contracts; . . . .

The breach itself was effectively admitted by the defendant and Mills J. characterized the action as “really a case about damages”. Since “in the event of a breach of contract all of the damage was likely to be sustained in Saskatchewan”, real and substantial connection was established. In other words, as explained by Laing J. (as he then was) in Sampson v. Olsen, 2005 SKQB 501, it really didn’t matter if the action was in contract or in tort as the damages themselves presented “other circumstances” constituting RaSC:

12 In the end result, I do not find it necessary to rule whether Saskatchewan should assume jurisdiction on the basis of s. 9(e) or 9(g) because whether these sections would apply, or not, the plaintiff has proven “other circumstances that constitute a real and substantial connection between Saskatchewan and the facts on which a proceeding is based” as referred to in the introductory clause of s. 9 of the Act. All of the alleged damage, both personal injury, property and financial, took place in the Province of Saskatchewan. On the facts, this is a sufficient real and substantial connection.

On a practical note, the case is useful for showing that it is not always necessary to try to fit a situation in one of the presumptive categories of RaSC. Where the facts of the case clearly show a connection to the forum, needless time and effort may be spent trying to creatively characterize the facts into preset categories rather than directly appealing to the court’s logic.

The simple mortgage on a home had been broken into many pieces (tranches --- See Special Purpose Vehicle (SPV)) each having characteristics of entities unto themselves. The term "borrower" was severed from the the obligation to pay. The term "lender" was severed from the risk of loss and the right to payment from the borrower. The term "investor" was severed from the actual ownership of any asset, except one deriving its value from conditions existing between a myriad of third parties, but which nonetheless carried with it a right to receive payments from many different entities and people, the "borrower" being just one of many.

In the Mortgage Meltdown context, the challenge is to prove the point that this was a fraudulent scheme, a Ponzi arrangement that was a financial pandemic. You get that information through discovery, but unless you know what you are looking for, you will merely come up with volumes of paper that do not, in and of themselves reveal all the points you need to make --- but they WILL lead to the discovery of admissible evidence (the gold standard of what is permitted in discovery) if you understand the scheme.

The nucleus of the scheme is the virtually unregulated creation of the Special Purpose Vehicle (SPV), which is a corporation formed by the investment banker to "own" certain rights to the loans and mortgages and perhaps other assets that were packaged for insertion into the SPV. The SPV issues securities and those securities are sold to investors with fake ratings and "assurances" and insurance that is falsely procured, but where the insurers or assurers were under common law, state law and/or federal law, required to perform their own due diligence, which they did not (in the mortgage meltdown). The proceeds of the sale of ABSs (CDO/CMO) go into the SPV.

The directors and officers of the SPV entity order the disbursement of those proceeds. (see INSURANCE in GARFIELD's GLOSSARY).

The recipients are a large undisclosed pack of feeding sharks all claiming plausible deniability as to inflated appraisals of the residential dwelling, the borrower's ability and willingness to pay, the underwriting standards applied (suspended because the lender was selling the risk rather than assuming it), and the inflated appraisal of the ABS (CDO/CMO) for all the same reasons --- direct financial incentives, coercion (give us the appraisal we want or we will never do business with you against and neither will anyone else) or even direct threats of challenges to professional licenses.

In order to get this information, you must find the name of the SPV, which is probably disclosed in filings with the SEC along with the auditor's opinion letter (see INSURANCE in GARFIELD's GLOSSARY). You might get lucky and find it just by asking. Then demand production of the articles of incorporation and the minutes, agreements, signed and correspondence between the SPV and third parties and between officers and directors of the SPV. The entire plan will be laid out for you as to that SPV and it might reveal, when you look at the actual insurance contracts, cross collateralization or guarantees between SPV's. Those cross agreements could be as simple as direct guarantees but will more likely take the form of hedge products like credit default swaps (You by mine and I'll by yours --- by express agreement, tacit agreement or collusion). 

You will most likely find that once you perform a thorough analysis of the break-up ("Spreading") of the risk of loss, the actual cash income stream, the ownership of the note, the ownership of the security instrument (mortgage) and the ownership and source of payment for insurance and other contracts, that all roads converge on a single premise: this was a deal between the borrowers (collectively as co-borrowers) and the investors (collectively as co-investors). Everyone else was a middle man pretending to be NOT part of the transaction while they were collecting most of the proceeds, leaving the investor and the borrower hanging.

And there is no better place to start than with the insurance underwriting process --- getting copies of applications, investigations, analysis, correspondence etc. Combined with the filings with the SEC you are likely to find virtual admissions of the entire premise and theme of this entire blog. I WOULD APPRECIATE YOU SENDING ME THE RESULTS OF YOUR ENDEAVORS.

INSURANCE --- DEFINED

A promise of compensation for specific potential future losses in exchange for a periodic payment. Insurance is designed to protect the financial well-being of an individual,company or other entity in the case of unexpected loss. Some forms of insurance are required by law, while others are optional. Agreeing to the terms of an insurance policycreates a contract between the insured and the insurer. In exchange for payments from the insured (called premiums), the insurer agrees to pay the policy holder a sum of money upon the occurrence of a specific event. In most cases, the policy holder pays part of the loss (called the deductible), and the insurer pays the rest. IN FORECLOSURE OFFENSE AND DEFENSE, YOU WILL FIND ERRORS AND OMISSIONS POLICIES COVERING THE OFFICERS AND DIRECTORS OF THE INVESTMENT BANKING FIRM, THE SPV THAT ISSUED THE ASBs, THE RATING AGENCY FOR THE ASB (CMO/CDO), THE LENDER, THE MORTGAGE BROKER, THE REAL ESTATE AGENT, ETC. YOU WILL FIND MALPRACTICE INSURANCE FOR THE AUDITORS OF THE SAME ENTITIES WHICH RESULTED IN FALSE REPRESENTATIONS CONCERNING THE FINANCIAL CONDITION OF THE ENTITY. YOU WILL FIND LOSS COVERAGE FOR DELINQUENCY, DEFAULT OR NON-PAYMENT THAT MAY INURE TO THE BENEFIT OF THE BORROWER. By joining the borrower and the investor as victims in the fraudulent Ponzi scheme creating money supply with smoke and mirrors, it may be argued that the insurance premiums were paid by and equitably owned by the borrower and/or the investor. 

QUIET TITLE:

In essence the reverse of a traditional foreclosure where the owner of the property forecloses the claim of the people against whom he he has filed suit claiming the property free and clear of all encumbrances. 

The significance in foreclosure OFFENSE is that the loan has been assigned, sold and transferred multiple times and broken up into thousands of pieces along with many others that were intermingled in portfolios, sometimes with cross guarantees from one portfolio to another. 

This process started before the first payment was due on the mortgage loan and before the victim/borrower came to know the real facts of the loan withheld from him in an asymmetric information environment (see asymmetric information) in an inter-temporal transaction (see inter-temporal transaction). 

Thus the true owner, against whom rescission could be claimed became unknown to the victim/borrower. The quiet title action sues "John Doe" identified as all persons having an ownership interest in the mortgage lien on the subject property. The allegation is made that while the victim/borrower has been notified of a transaction, the victim/borrower, petitioner has not been advised of who the entities or people are who own this interest. And since there are TILA and other fraudulent violations, the victim/ borrower/petitioner wishes to rescind. Efforts to determine the true owners have led the Petitioner to determine that there may be thousands of entities or owners, none of whom have been disclosed to Petitioner despite attempts to secure said information (contained in the TILA report and demand). 

SERVICE OF PROCESS IS BY PUBLICATION.

If the court demands that the mortgage servicing company be named as nominal Defendant or Respondent, the mortgage servicing company has only one job: to produce information and proof of ownership of the loan. It is doubtful that anyone, least of all the mortgage servicing entity will be able to fulfill this condition. 

Thus the default judgment will be entered, the victim stops paying the mortgage, and has a recorded judgment relieving his property of any mortgage lien and offsetting the note with the refunds and damages payable to the victim, thus satisfying the entire principal of the note and awarding attorney fees to the victim/petitioner.

RESCISSION:

The right to reverse the transaction. Ordinarily rescission involves giving back everything you received in exchange for getting back everything you gave. In this setting it means the right to get back ALL the interest, points, closing costs and attorney fees and other costs at or after closing that you incurred as a result of the transaction. Rescission rights exist under Federal Statutory Law (Truth in Lending Act - TILA, State Deceptive Business practice Acts, and at common law. Remember that rescission doesn't mean you give back the house. It doesn't even mean you have to give back the money to the lender against whom you are rescinding --- THAT obligation commences AFTER the lender admits to the rescission or it is otherwise decreed and then it is reduced by the refunds of points, interest, closing costs you paid plus damages and attorney fees you suffered as a result of the issues raised in this post. Rescission might not even mean you owe any money at all to the lender. It could mean that the mortgage lien is extingunished and so is the note. It could convert a secured debt, non-dischargeable in bankruptcy to an unsecured debt wholly dischargeable in bankruptcy. And unless the party coming into court or the auction as a "representative" of the lender can prove that they have received their instructions and authorization from a party who is authorized to give those instructions, then they lack authorization, they lack legal standing and they are probably committing a fraud on you, the court and everyone else. 

companion tranche

A specific tier or segment of REMIC security. A REMIC tranche that is structured to absorb a disproportionate amount of the volatility caused by variations in the prepayments of the underlying collateral. Companion tranches are created to be more volatile so that other tranches in the same REMIC, called PAC or TAC tranches, may have more stable cash flows. Hence the name companion. Also called support tranches. The significance in Foreclosure defense is that this is one of the devices used in the covenants or indentures of ASBs that assures payment to the holder of the security. Since the holder of the security is the "owner" of the mortgage and note, it is reasonable to assume that either the holder of the mortgage has been paid by a third party or that a third party assumed the liability.

compliance risk

One of nine risks defined by the Office of the Comptroller of the Currency (OCC). The risk to earnings or capital arising from violations of or nonconformance with laws, rules, regulations, prescribed practices, or ethical standards. This risk is incorporated in the Federal Reserve definition of legal risk. Participants in the Mortgage Meltdown of 2001-2008 were virtually all out of compliance and upon filing of an administrative complaint to the OCC, could be prosecuted for violations.

conventional mortgage

A mortgage loan based solely upon the value of the mortgaged real estate and the creditworthiness of the borrower. A mortgage loan without insurance or guarantees from a government agency. The significance is that with securitization of the loans there is (a) insurance to the holder of the CLO (b) guarantees of payment from third parties and (c) in practice, guarantees from the Federal Government (witness the Federal Reserve bailout of Bear Stearns and the Federal Reserve policy of allowing investment bankers who are holding CLOs to use those CLOs for loans at the Fed window). The securitized transactions thus converted the original transaction from a conventional loan to a complex consumer credit, insured, guaranteed, pooled security transaction falling far outside of the TILA exemption regarding residential home mortgages eligibility for rescission. 

INTER-TEMPORAL TRANSACTIONS:

Transactions in which the commencement of the terms at the execution of the deal contains terms, risks or provisions that differ from a later time. The significance of this insider term in the MORTGAGE MELTDOWN is a classic real story: the victim is a black man with a perfect (800) FICO score has lived in his house many years and has only 5% left to pay off on his mortgage. He is approached by carefully trained predatory salesman for subprime lender --- a lender that the victim had no need for because his credit, finances and personal reputation were excellent. Victim could therefore have qualified for any conventional loan on conventional terms. Victim does not know because it is not disclosed to him that he is being approached with a subprime lending program and that he qualifies for much better terms that are being offered to him --- nor that he would be better off NOT refinancing since he is so close to paying off his house. He is convinced to get a new mortgage for interest only payments set at 1% while another 9% accrues. $20,000 in mortgage broker and yield spread premium rebates (kickbacks) are paid up front along with the mortgage proceeds. Within a few months he starts getting notices of increases in his payments which eventually are larger than his entire income. Qualification of the loan by the "lender" was at the payment rate at 1% interest, not at the future rates that would be applied, for which his income would NOT qualify. Victim ends up with risk of foreclosure and blemished credit score. Happy ending. Legal aid stepped in and unwrapped the deal. Many borrowers are seduced into accepting these deals believing that the extra money they are getting out of the mortgage proceeds will help them indefinitely to make future payments. It is the lender's obligation to disclose that this is not the case, that the borrower's income does not cover the amount of future payments which the lender understands and the borrower does not (see asymmetric information). 

MORTGAGE MELTDOWN:

An series of events (stemming from the 1983 introduction of derivative securities) created by a tacit cartel of investment bankers and other financial institutions in which borrowers were (approved) "loaned" money on purchase money mortgages based upon false appraisals in the context of contemporaneous securitized transactions where the investment capital was procured by fraud in unregulated security offerings to "qualified" investors, based upon false assurance, false ratings, false insurance backing, and false appraisals of underlying property, income of borrowers and many other factors. The logistics of this scam were revealed in pieces and have threatened the very existence of many financial institutions and the financial markets themselves. Indexes, such as LIBOR, were indirectly manipulated by U.S. financial institutions to hide the true facts. Despite a brief period in which certain arcane "auction markets" froze up (in places and events unknown to the public, business has resumed as usual. The lack of regulation from a responsible, accountable agency or group of agencies has spawned hundreds of lawsuits and millions of foreclosures, many producing counterclaims for far more than the original mortgage and note. No immediate fundamental change is in process in the regulatory scheme, hence it may be expected that the mortgage meltdown will replay in one form or another shortly. 

NINJA LOAN

NO INCOME, NO JOB, NO ASSETS: NO DOCUMENTS, NO VERIFICATION, NO REVIEW BY RISK ANALYSIS COMMITTEE.

I have to say, I'm not at all suprised at Wider's behavior.  I am suprised it doesn't happen more often.  Maybe my current cynicism is heightened because I spent my two-week vacation watching bad reality television, where young men and women are continually in each other's faces shouting about bringing on a world of pain.  (Don't judge.)  But I do think the civility is seeping out of American society, one f-bomb at a time.  And though I suspect the decline is more concentrated in younger people, older folks are obviously not immune.

EXPLAINING MORTGAGE MELTDOWN, IRAQ AND INEQUALITY OF WEALTH AND OPPORTUNITY

The truth we don't want to hear is the same truth we shout down as unpatriotic. It is the essence of patriotism and good journalism to speak the truth and to back it up with solid facts that are congruent with the reality we experience in our daily lives. This piece by Moyers is the one of his best, and worth reading and re-reading.

Moyers: 'Democracy in America Is a Series of Narrow Escapes, and We May Be Running Out of Luck'

By Bill Moyers, Doubleday
Posted on May 17, 2008, Printed on May 18, 2008
http://www.alternet.org/story/85521/

The following is an excerpt from Bill Moyers' new book, "Moyers on Democracy" (Doubleday, 2008).

Democracy in America is a series of narrow escapes, and we may be running out of luck. The reigning presumption about the American experience, as the historian Lawrence Goodwyn has written, is grounded in the idea of progress, the conviction that the present is "better" than the past and the future will bring even more improvement. For all of its shortcomings, we keep telling ourselves, "The system works."

Now all bets are off. We have fallen under the spell of money, faction, and fear, and the great American experience in creating a different future together has been subjugated to individual cunning in the pursuit of wealth and power -and to the claims of empire, with its ravenous demands and stuporous distractions. A sense of political impotence pervades the country -- a mass resignation defined by Goodwyn as "believing the dogma of 'democracy' on a superficial public level but not believing it privately." We hold elections, knowing they are unlikely to bring the corporate state under popular control. There is considerable vigor at local levels, but it has not been translated into new vistas of social possibility or the political will to address our most intractable challenges. Hope no longer seems the operative dynamic of America, and without hope we lose the talent and drive to cooperate in the shaping of our destiny.

The earth we share as our common gift, to be passed on in good condition to our children's children, is being despoiled. Private wealth is growing as public needs increase apace. Our Constitution is perilously close to being consigned to the valley of the shadow of death, betrayed by a powerful cabal of secrecy-obsessed authoritarians. Terms like "liberty" and "individual freedom" invoked by generations of Americans who battled to widen the 1787 promise to "promote the general welfare" have been perverted to create a government primarily dedicated to the welfare of the state and the political class that runs it. Yes, Virginia, there is a class war and ordinary people are losing it. It isn't necessary to be a Jeremiah crying aloud to a sinful Jerusalem that the Lord is about to afflict them for their sins of idolatry, or Cassandra, making a nuisance of herself as she wanders around King Priam's palace grounds wailing "The Greeks are coming." Or Socrates, the gadfly, stinging the rump of power with jabs of truth. Or even Paul Revere, if horses were still in fashion. You need only be a reporter with your eyes open to see what's happening to our democracy. I have been lucky enough to spend my adult life as a journalist, acquiring a priceless education in the ways of the world, actually getting paid to practice one of my craft's essential imperatives: connect the dots.

The conclusion that we are in trouble is unavoidable. I report the assault on nature evidenced in coal mining that tears the tops off mountains and dumps them into rivers, sacrificing the health and lives of those in the river valleys to short-term profit, and I see a link between that process and the stock-market frenzy which scorns long-term investments -- genuine savings -- in favor of quick turnovers and speculative bubbles whose inevitable bursting leaves insiders with stuffed pockets and millions of small stockholders, pensioners, and employees out of work, out of luck, and out of hope.

And then I see a connection between those disasters and the repeal of sixty-year-old banking and securities regulations designed during the Great Depression to prevent exactly that kind of human and economic damage. Who pushed for the removal of that firewall? An administration and Congress who are the political marionettes of the speculators, and who are well rewarded for their efforts with indispensable campaign contributions. Even honorable opponents of the practice get trapped in the web of an electoral system that effectively limits competition to those who can afford to spend millions in their run for office. Like it or not, candidates know that the largesse on which their political futures depend will last only as long as their votes are satisfactory to the sleek "bundlers" who turn the spigots of cash on and off.

The property qualifications for federal office that the framers of the Constitution expressly chose to exclude for demonstrating an unseemly "veneration for wealth" are now de facto in force and higher than the Founding Fathers could have imagined. "Money rules Our laws are the output of a system which clothes rascals in robes and honesty in rags. The parties lie to us and the political speakers mislead us." Those words were spoken by Populist orator Mary Elizabeth Lease during the prairie revolt that swept the Great Plains slightly more than 120 years after the Constitution was signed. They are true today, and that too, spells trouble.

Then I draw a line to the statistics that show real wages lagging behind prices, the compensation of corporate barons soaring to heights unequaled anywhere among industrialized democracies, the relentless cheeseparing of federal funds devoted to public schools, to retraining for workers whose jobs have been exported, and to programs of food assistance and health care for poor children, all of which snatch away the ladder by which Americans with scant means but willing hands and hearts could work and save their way upward to middle-class independence. And I connect those numbers to our triumphant reactionaries' campaigns against labor unions and higher minimum wages, and to their success in reframing the tax codes so as to strip them of their progressive character, laying the burdens of Atlas on a shrinking middle class awash in credit card debt as wage earners struggle to keep up with rising costs for health care, for college tuitions, for affordable housing -- while huge inheritances go untouched, tax shelters abroad are legalized, rates on capital gains are slashed, and the rich get richer and with each increase in their wealth are able to buy themselves more influence over those who make and those who carry out the laws.

Edward R. Murrow told his generation of journalists: "No one can eliminate prejudices -- just recognize them." Here is my bias: extremes of wealth and poverty cannot be reconciled with a genuinely democratic politics. When the state becomes the guardian of power and privilege to the neglect of justice for the people as a whole, it mocks the very concept of government as proclaimed in the preamble to our Constitution; mocks Lincoln's sacred belief in "government of the people, by the people, and for the people"; mocks the democratic notion of government as "a voluntary union for the common good" embodied in the great wave of reform that produced the Progressive Era and the two Roosevelts. In contrast, the philosophy popularized in the last quarter century that "freedom" simply means freedom to choose among competing brands of consumer goods, that taxes are an unfair theft from the pockets of the successful to reward the incompetent, and that the market will meet all human needs while government itself becomes the enabler of privilege -- the philosophy of an earlier social Darwinism and laissez-faire capitalism dressed in new togs -- is as subversive as Benedict Arnold's betrayal of the Revolution he had once served. Again, Mary Lease: "The great evils which are cursing American society and undermining the foundations of the republic flow not from the legitimate operation of the great human government which our fathers gave us, but they come from tramping its plain provisions underfoot."

Our democracy has prospered most when it was firmly anchored in the idea that "We the People" -- not just a favored few -- would identify and remedy common distempers and dilemmas and win the gamble our forebears undertook when they espoused the radical idea that people could govern themselves wisely. Whatever and whoever tries to supplant that with notions of a wholly privatized society of competitive consumers undermines a country that, as Gordon S. Wood puts it in his landmark book The Radicalism of the American Revolution, discovered its greatness "by creating a prosperous free society belonging to obscure people with their workaday concerns and their pecuniary pursuits of happiness" -- a democracy that changed the lives of "hitherto neglected and despised masses of common laboring people."

I wish I could say that journalists in general are showing the same interest in uncovering the dangerous linkages thwarting this democracy. It is not for lack of honest and courageous individuals who would risk their careers to speak truth to power -- a modest risk compared to those of some journalists in authoritarian countries who have been jailed or murdered for the identical "crime." But our journalists are not in control of the instruments they play. As conglomerates swallow up newspapers, magazines, publishing houses, and networks, and profit rather than product becomes the focus of corporate effort, news organizations -- particularly in television -- are folded into entertainment divisions. The "news hole" in the print media shrinks to make room for advertisements, and stories needed by informed citizens working together are pulled in favor of the latest celebrity scandals because the media moguls have decided that uncovering the inner workings of public and private power is boring and will drive viewers and readers away to greener pastures of pabulum. Good reporters and editors confront walls of resistance in trying to place serious and informative reports over which they have long labored. Media owners who should be sounding the trumpets of alarm on the battlements of democracy instead blow popular ditties through tin horns, undercutting the basis for their existence and their First Amendment rights.

Bill Moyers is the author of "Moyers on Democracy" (Doubleday, 2008) and the host of the PBS show, Bill Moyers Journal.

CONVERSION FROM INDEX TO REALITY

Obama’s call for “TRUTH” is a simplified statement that calls into question the manner in which information is collected, the way it is presented and the manner in which it is disseminated to the public. 

Underlying this simple call for integrity is his assessment that information flow is fundamentally flawed and that a much needed correction will result in smarter policies that people will give credence to and lend their active support; and that the self-fulfilling negative prophecy we are all living can be turned into a positive climb in quality of life. If you already believe this and understand it, there is no need for you to read this article. If you think his statement is mere lofty rhetoric, you might want to consider my presentation here. For those who want further information, look for books by Von MIses and Rothbard.

The tools of power are all based in information. If the information seems reliable, then the policies foisted on us seem reasonable and even “right.” The basic tool in use today is the statistical index. There is something about an index that when published gains the credulity of the public and even those who know better. It is like a self-fulfilling prophecy.

American political and economic history can be viewed from many perspectives and themes. One of them is the ebb and flow of our collective perception of people, regarded sometimes as labor, sometimes as capital and sometimes not at all. 

The current business, economic and political environment has failed to advance or evolve very much for most of the people of the United States, even though women received the right to vote some 80 years ago, and blacks received the right to vote some 40 years ago. 

The tendency of certain people to accumulate great wealth and power in any society of any nature inevitably produces an inequality not only of results, but of opportunity. American voters, deprived of the education and information they need to know to make informed decisions, are easily manipulated into voting against their own interests.  An educated voter is a nightmare to any power broker, economic cartel, or political cartel.

When adults cannot find states, cities or even continents on a map displaying all the information with proper labeling, it is not hard to see how such people can be easily deceived. And those with power and wealth are eager to deceive them, gaming the electoral process into a utility to maintain and expand their wealth and their power.

The tools of power are all based in information. If the information seems reliable, then the policies foisted on us seem reasonable and even “right.” The basic tool in use today is the statistical index. There is something about an index that when published gains the credulity of the public and even those who know better. It is like a self-fulfilling prophecy. 

Whether it is Libor, the inter-bank lending rate index, the CPI, which supposedly measures inflation for consumers, or the indexes used to measure market dominance, we have drawn artificial lines in the sand which allow those in power to continue on their merry way while the rest of us wonder what hit us. 

• The reality is that Libor, bond ratings, measurements of consumer prices, measurements of those employed, measurements of those unemployed, measurements of those underemployed, productivity, and unfair trade practices are all at substantial variance with reality. Thus the mortgage meltdown, the recession, and another opening of Walmart that kills thousands of jobs, hundreds of companies, thousands of opportunities for innovation, and diminishes our choices to dangerous or inferior products with virtually no service inside the store and no assurances of fair treatment once a sale has been completed. 
• Walmart is able to achieve this feat and become one of the largest companies in the world by converting labor back into capital despite the 13th Amendment. As with all companies of great wealth they were able to purchase the rights to make their activities legal. In reality, those of us who live in the world created by this cash carry government policy making, we see that there is complete 100% market dominance by Walmart in each town it hits. 
• But statisticians for Walmart just like the statisticians for the drug companies, look for a sampling that gives them the arguable position that what we see right in front of us, just isn’t there. We are deceived, or so they say. We are not looking at the “big picture.” True, nor should we look at THEIR big picture if we want OUR lives improved. There should be a healthy competition between accumulation of wealth and quality of life. In truth, we are at the bottom of the barrel on the level of that all-important competitive “index.”
• By expanding and contracting the area “affected” by a Walmart store one can present a plausible argument that there is no significant effect on competition. We know different but there it is right there in black and white, by the numbers. 
• By contracting the sampling on a drug study to a specific period of time where nothing adverse happened to patients taking the experimental drug, the drug is pronounced safe and then tens of thousands of people die because it wasn’t safe, as the REST of the data clearly showed. Management of disinformation is the way we are manipulated into voting against ourselves. Political slogans emanate from false statements from apparently reliable sources. And we are all deceived.
• By hiring all graduates of regulatory agencies when they retire, a retailer or drug or oil company guarantees that the regulators will not look too deeply into the manner in which such an index is presented. Plausible deniability is the name of the game. The result is you and I get screwed. That is the story of antitrust, the FDA, and dozens of other agencies serving the business sector  to the nearly complete exclusion of the safety and welfare of the taxpayers in whose name they operate. It is the equivalent of a hostile takeover of government where the cash and carry system of legislation perpetuates not merely inequality but threats to the safety and welfare of our citizens.

“Inequality” (regardless of how you define the word “equal”) does and will exist in the most despotic regimes following ideology from Marx to Plato’s progeny producing the likes of John Locke and the scholars of the American Revolution. No regime can provide or assure a specific outcome for the life of one or any of its citizens. This article takes no issue with the inevitability of inequality.

Yet we have an innate sense of right and wrong even when we do wrong. We know that “all men are created equal” has a meaning even if we can’t all agree precisely what that means. We know that the U.S. Constitution was written to provide a framework for liberty and freedom but not for women, native Americans and slaves. Women and native Americans counted as zero and black slaves pulled slightly ahead of women at 3/5 of a person, as stated in our constitution. 

When the American Slaves were freed about 160 years ago it was, in an economic sense, a conversion of capital into labor. 

Slaves had been purchased and traded like bales of cotton or rice or tobacco; they were property, they were allowed no education, no free will, and of course no bargaining power. How would anyone go about “educating” a bale of cotton? It makes no sense. While mystics ascribe a soul to everything, whether we think it is alive or not not, most of us are quite tolerant at denying rights to a bale of cotton, even if it is burned, torn apart are thrown under a bus. In a word, if the cotton “feels” anything, we don’t care and it isn’t likely that we will care anytime soon or that we should. Something in most of us “knows” that the cotton is not worthy of our sympathy, nor do we sense any obligation to it.

The system made perfect economic sense: the cost of production was reduced to the absolute minimum, repairs of equipment and “other capital” (like slaves) were repaired until they were of no further use at which point they were discarded. And unlike other forms of capital, slaves reproduced, thus continually expanding the potential for production without further capital expenditures. 

Society organized around this system in such a way that no actual person worked, without being regarded as disgraced. Plantations were worked by slaves, managed by slaves and the wealth generated went exclusively to the Plantation owner. The threat of removing this system, depriving the owners of their possession of slave capital was a threat to the entire way of life that had evolved over 200 years. 

It makes sense only if you look at some data and not look at other information. The slave capital system was missing a key ingredient --- a prospering rising middle class. The non-slave states had it and they did far better in the long run than any of the slave states many of which are still, 160 years alter, at the bottom of the barrel economically and in quality of life. Their resistance to allowing education to a significant population of former slaves was the equivalent of shooting themselves in the head.  It was an all or nothing mentality. Either the slaves would provide free production or we won’t help them do anything. 

The “information” Southerners were working with was that blacks were less than human. They thus deprived themselves of the single greatest resource they had to compete in a national economy and eventually internationally. Politicians looking for power found it easy pickings to tease voters into anger and resentment about the Civil War, about slavery, and about Jim Crow segregation. The politicians objectives were simple: maintain power. The rest of the people be damned. (which at the risk of political incorrectness, makes the Reverend Wright’s comment plausible, even if ill-constructed. He wasn’t wrong in what he said. Yet he missed an important point: 40-160 years ago he would have been tortured and hung for making a statement that passed only as a news story now).

The importing of tens of millions of Mexican laborers who had “illegal” status is an inevitable result of big business’ realization that the lock on the poor white and poor black populations was loosening. The grip of fear of discovery gave the leverage needed to convert these workers from labor to something as close to slave capital as would be tolerated in our society.

The mortgaging of America’s future, with all the inevitable taxes that implies, the culture of debt rather than savings, and the withholding and diminishment of education through all walks of life in America is the policy behind the tools of our re-enslavement. The risk now is higher and more widespread than in the 1790’s when women, slaves and native Americans were already discounted capital. Now the government and the business sector have us all targeted as potential “capital” instead of unhappy black men caught like animals and transported like capital with acceptable losses at 1/3 of the cargo. 

And the only thing that can stop them is a reversal of the institutionalization of ignorance. We have accepted too long the notion that we don’t know anything but that’s OK nobody else does either. We should all know more than we do, We should all treat life as an opportunity to educate, train and better ourselves. If we do, then everyone wins, including the business sector which needs the rising prosperous middle class to do business, whether it is here or abroad. Why don’t they know that? Because like you, they are just people trying to get the most they can right now. That’s human nature. That is the American way.

Treat every index with suspicion. Test all information against your own anecdotal experience. And don’t let anyone tell you they know more about your life than you do.

Now trust even between financial institutions is at an all-time low and the "objective" third parties upon which banks rely to set lending standards and judge their strategies are in doubt, to say the least. Libor, the interbank rate published in London in an index used worldwide is under close scrutiny because there are many questions of how it could be so wrong in the face of reality. Moody's and other rating agencies have been lutred by profit motive and outright corruption into negotiating ratings instead of setting them through objective analysis. 

Obama's declaration that truth will be the standard of his Presidential administration is thus being greeted by even the most conservative pro-business, pro-bank publications with a mixture of hope and trepidation. can he really do it? Yes, if he means it. AND by all accounts, it appears as though he does indeed mean it.

That confidence in the U.S. dollar is at an all-time low is no surprise. But when countries start propping up currencies that are barely on the radar, you know that central bankers are thinking that the U.S. government is not doing enough to shore up the fundamentals of its economy. This translates to a lack of confidence that the dollar will recover. Like the price of oil headed inexorably toward $200 per barrel, the dollar is seen headed inexorably downward. This kind of thinking leads to self-fulfilling prophecy, so it needs to be taken seriously. 

The plain fact is that we have $500 trillion in derivative securities that are treated, for the most part, as cash equivalents. In the face of a half-gig behemoth of private sector money supply, central bankers understand that their impact on monetary policy, money supply, credit, and economic growth is virtually out of reach. Like it or not, economic policy is in the hands of the private sector now.

More pretense of regulation from a corrupt government will produce less rather than more instability in the financial sector. Government is providing cover for wrongdoers rather than relief for everyone. 

The dangers are obvious. The inevitable conclusion of this paradigm shift can already be seen: a massive shift in the distribution of wealth, with its attendant death grip on government policy and action.

The role of government --- to be the referee in assuring a fair playing field --- has been subverted beyond recognition.

The tangible results are that millions of homes are being foreclosed, tens of millions of people are being hit with economic losses, and despite even the calls of the conservative Economist magazine for a U.S. "Federal effort to streamline the states' convoluted foreclosure laws" nothing has emerged thus far.

We are aware and I have assisted in the writing of emergency rules of civil procedure for foreclosures from initiation of proceedings through mediation and judgment. These rules have been submitted to Nevada, Florida and Arizona thus far. The Courts are warming to the idea, but it is likely that a uniform approach will not be adopted, leaving the country in a morass of hoops to jump through before borrowers and lenders and investors can be brought to the table to put a stop to the downward slide. 

Under normal conditions, we would be the first to scream for better regulation, more enforcement and criminal prosecution arising from the massive fraud that killed the residential housing market, and severely damaged the rest of the credit markets worldwide. But we are of the opinion that this is an emergency that transcends normal government response. It is akin to the emergency of war where we are fighting for our very survival. Amnesty for every participant on the investor-lender side and on the borrower loan origination side is essential even if it gives a break to "speculators" and criminal minds that irresponsibly launched this plan to nowhere.

Only then will we demonstrate to central bankers around the world that we are serious about this crisis. Only then will they lose momentum is distancing themselves from the dollar.

Overseas banks save a currency

Commentary: A useful game plan if the dollar really hits the skids

By MarketWatch

Last update: 10:08 a.m. EDT May 16, 2008

LONDON (MarketWatch) - It's official -- overseas central banks stepped in Friday to prop up a beleaguered currency that's been weighed down by an out-of-control financial sector and an economy on the rocks.

Sounds like the U.S. dollar, but actually, it's the Iceland krona. See related story.

The central banks of Norway, Sweden and Denmark will each provide up to 500 million euros that the Central Bank of Iceland can swap for krona.

Of course, any central bank intervention to prop up the dollar would have to be done on a far larger scale than chucking in a bit more than $2 billion.

So understandably, the Bank of Japan and the European Central Bank reportedly have kept their ammunition so far to words and arm twisting. See related story.

And U.S. interest rates are just a touch lower than what's on offer in Iceland -- 2.25% compared to 15.5%.

But it's worth noting that the intervention has worked, on the day at least - the currency is up over 4% against the euro.

If nothing else, the move by the Scandinavian central banks is a game plan that can be dusted off if the dollar really goes into meltdown mode.

-- Steve Goldstein 

Where the real case leaves off is with biological father ("BioDad") unable to get any relief because the trial court has no jurisdiction to proceed. In the hypothetical, the legal father ("LawDad") has to work two jobs to pay the legal fees that accrued defending against BioDad's petition and the ensuing appeals. Because of the stress of this, he develops a drinking problem and becomes estranged from his wife. A divorce occurs and biologcial mother ("BioMom") gets sole custody. BioMom becomes depressed and, as a result of deep depression, neglects the child ("Child"). Child is removed by the Cabinet for Health and Family Services after being found wandering along a busy highway after sneaking out of the house while mom was in a depressed stupor. The Cabinet dutifully seeks out a relative to care for Child, but the only known relative is LawDad whom they find passed out on his front porch after a night of drunken debauchery. Because of LawDad's double D dysfunction, he cannot have the child placed with him or gain custody.

Now, the stage is set and Child goes into foster care. Because BioDad was denied the opportunity to assert paternity, he has not been judicially found to be a parent. KRS 610.020 requires the Petition to name "parents", but BioMom and LawDad are still sore about the whole lawsuit thing and never bring BioDad up. Furthermore, KRS 610.040 does not require that he be notified. So, Child is in foster care for the next 15 months because BioMom and LawDad are more focused on sniping at each other than regaining custody of Child.

Next, the Cabinet files a petition for the involuntary termination of parental rights of BioMom and LawDad on behalf of Child. Still, the Cabinet has no idea about BioDad because they never read this blawg and are unfamiliar with this case. Interestingly, KRS 625.060 requires that "biological parents" are made parties to the action, but only "if known". Here is where the hypothetical has different possible outcomes.

Outcome 1: Parental rights are terminated to BioMom and LawDad and Child spends the rest of his childhood going from foster home to foster home, or perhaps is adopted and lives happily ever after, but always dreams of being with his "real" parents. BioDad sees him years later with the adoptive family and finally learns of all those events, but he can do nothing. In the worst case scenario, adoptive parents are actually sadists bent on mentally torturing Child. Best case scenario is that they are great parents and is relatively unharmed by all these events.

Outcome 2: BioDad finds out and moves to intervene in the termination of parental rights. Now, we are back at the starting point and the court has to determine whether he has standing to intervene under this separate set of statutes. Arguably he would have standing because the statute specifically mentions "biological parents". This, then, is a huge inconsistency in the paternity laws of kentucky. Regardless, he still has a huge hurdle to overcome because the termination of parental rights statute, KRS 625.090 has no safe harbour provision that would protect BioDad due to his lack of knowledge of the events. In other words, neglect or abuse never has to of been alleged against BioDad. The statute is a list of events, sometimes totally out of the control of the parent, and if one and only one of these events are checked off, then termination can occur. BioDad could be the best dad in the world, but if Child was found to be neglected by clear and convincing evidence, has been in foster care 15 out of the last 22 months (even if it is the Cabinet's fault for not having enough workers to move the case along), and the judge believes it is in the child's best interest (purely subjective), then his parental rights could be terminated without him ever getting to exercise them.

Give the above scenario, as unlikely as it is, I have had to reflect on the JNR decision because of the far reaching consequences. I hope that the General Assembly will take up this issue to rectify this legal inconsistency.

i remember one of the greatest problems i faced was, uh, (so embarrassed to admit this) reading comprehension. i read this one sentence and realized, Wow I do not understand any of the words here. well okay that's a lie, there was only one word i had never heard of before, but it was definitely key. so that was a lot of fun, and i based a lot of my analysis of the question on my assumption of that word.

to all you law schoolers out there, here was the basic premise:

A brings a lawsuit against S, but S claims B is an indispensible defending party. however, A+B are NOT diverse, and this suit is in federal court based on diversity. normally, you'd just have to throw the case out, right?

nope, it seems A+B are cousins who own the ranch A is suing S over (S was growing weed on it, bad girl) and so B could just be joined as a plaintiff then, right?

well, it's not that easy: one of A's claims is that B is in collusion with S for the weed-growing business AND under Texas state law, if B is found to be in collusion with S, he can recover nothing. But, if B is found to Not be in collusion w/S, he can recover half of the damages along with A.

additionally, S claims that she split some of the profits with B already AND (here's the part i assumed) under TX state law, that doesn't matter and she still has to pay up all her profits to the plaintiffs if she is found liable. reconcile THAT.

Phew! not your average Rule 19 indispensable party analysis, eh?

Today we have a bill pending that stops the meltdown. It is a courageous and creative step that protects all parties. It requires YOUR input, so pass this along to as many other people as you can. This is much more than a step in the right direction. It would be nice to see support from the presidential contenders as well.

Write your congressmen and women and get this thing passed. The Senate and House are standing on the line between mayhem and an orderly society and have taken the right steps. The rest is up to you.

It isn't perfect, but the bill would do more to stem the tide of foreclosures, evictions and declining home prices than anything else on the table. It will protect your home equity, it will stabilize the economy, and it will give the U.S. dollar just the shot of confidence it needs to slow the rising threat of hyper-inflation.

Call and write your congressman/woman, call and write your senators, flood them with emails.

This is not about the morality of or ideology of whether it was more the fault of one group over another. This is about the practicality of holding our society together. Nothing is more important to the your lifestyle than this bill no matter who you are.

Mortgage Aid Plan Advances in House

CLINTON -- MCCAIN FORECLOSURE FREEZE GETS COLD SHOULDER BUT SOUNDS GOOD

Well here is a version (SEE ARTICLE BELOW) of what we have been pushing for months ---- changing the terms of the mortgages so that the homeowner can stay in the house and the mortgage can be modified, sold or recast for capital accounting. This is a lot more sophisticated than the "mortgage freeze" proposed by Clinton and McCain and it is working already so we can't dispute the success.

• The problem with a "mortgage foreclosure freeze" is that it is a sound bite that doesn't really mean anything --- like the gas tax holiday. It doesn't address any of the problems but it gives rise to the illusion that the homeonwer is getting some relief.
• The problem for Obama is that he sounds like he is against providing relief because he understands the nuances of how to get that relief --- without pandering for votes. People don't like nuance and don't have the time for complex answers. So they vote against themselves based on sound bites, hoping gas prices will go down (they won't) and that their house will be saved by just doing one thing like a freeze on foreclosures that lasts ninety days (that won't work either).

There is no Clinton-McCain plan for relief because no order, legislation or rule is pending that will freeze anything and nothing is pending. Hillary and John are just blathering. They haven't ACTUALLY proposed the plan by introducing a bill on the Senate floor. The plan of these pandering politicians is get elected (the people be damned): the method is to make use of time-honored sound bites that consist of misleading statements and outright lies. The truth is that neither McCain nor Clinton has a clue about gas prices or mortgages.

Although this trading of mortgage obligations is obviously providing some relief, it doesn't address the root cause of the mortgage meltdown. And much as I don't care for the people or their methods who perpetrated this fraud on the world, there is no REAL solution unless some value is restored to the balance sheet of financial institutions and investors who purchased the collateralized mortgage obligations. Thus combining attributes of this plan with a more comprehensive plan to restore the capital reserves of financial institutions and investors would be preferable.

vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv

HOUSING

Investors move in to save broken mortgages

By E. Scott Reckard
Los Angeles Times Staff Writer

May 1, 2008

Jared Lanning, struggling to pay a home loan on which he owed more than his house was worth, was thinking he might just let the lender take back the property. Then he got a call one evening from an Orange County investor who had bought his mortgage.

"I want out of your loan," said the investor, Evan Gentry, chief executive of G8 Capital of Ladera Ranch, who offered to lower the balance and the interest rate.

Lanning, a crane operator in Englewood, Colo., was skeptical. A phone pitch, after all, had led to his getting the unaffordable loan in the first place. But Gentry was legit: He helped Lanning get a new Federal Housing Administration-insured mortgage -- with a $12,000 lower balance. Gentry also paid $5,000 in closing costs for the new loan. Lanning's new monthly payment is $200 less than before.

Investors -- including big fish like former Countrywide Financial Corp. President Stanford Kurland as well as smaller fry like Gentry -- are buying loans on the cheap from lenders who want them off their books. By paying less than face value for the mortgages, the new holders can modify loan terms, including shrinking the amount owed, and still make money.

With some economists projecting 2 million foreclosures this year, legislators and regulators are hoping to encourage wide use of this model. They want lenders and investors in mortgage bonds to mark down what borrowers owe and then provide them with lower-cost loans. It's a tricky business: No one wants to be seen as bailing out speculative buyers or imprudent lenders, but they also don't want mass foreclosures to devastate neighborhoods and the economy.

The Federal Deposit Insurance Corp. described the problem Wednesday as "a self-reinforcing cycle of default, foreclosure, home price declines and mortgage credit contraction, the likes of which we have not experienced since the 1930s." The agency is proposing that the government lend $50 billion to 1 million borrowers to help them replace unaffordable loans.

Sub-prime mortgages with interest rates ratcheting higher have proved less of a problem than once feared, because interest rates overall have dropped. But a "toxic combination" of falling home prices and borrowers who can't afford even the initial low rates on adjustable loans is now the issue, FDIC Chairwoman Sheila C. Bair said in an interview this week.

"Many more borrowers are under water," she said. "And many more are just walking away."

Many people bought homes with nothing-down loans at the peak of the housing boom -- 29% of all buyers in 2007 made no down payments, Treasury Secretary Henry S. Paulson Jr. said recently. Others have sucked all their equity out of their properties with refinancings.

According to Moody's Economy.com, some 8.8 million Americans -- more than 10% of all homeowners -- owe more than their houses are worth, although a Mortgage Bankers Assn. economist contended the figure was lower, perhaps 8%. In any case, there is wide agreement that many of those troubled borrowers have proved surprisingly ready to abandon their properties, even when lenders offer to modify their loan terms as they were encouraged to do by the Bush administration.

"We are working with borrowers to keep them in their homes, but a lot of them really don't want to stay," said Babette Heimbuch, chairwoman of FirstFed Financial Corp. of Los Angeles, a savings and loan operator that specialized in adjustable-rate mortgages, including many that were made without full documentation of borrowers' incomes.

FirstFed has about $6.3 billion in loans on its books. It said that $667 million of that balance, more than 10%, was delinquent or in foreclosure as of March 31, up from just $46 million a year earlier. FirstFed said Wednesday that it lost $69.8 million, or $5.11 a share, during the first quarter this year compared with a profit of $8.4 million, or 61 cents, a year earlier. It set aside $150.3 million for loan losses during the quarter, up from $3.8 million during the first quarter of 2007.

Because FirstFed kept most of its loans on its books rather than selling them, it should have been easier for the company to work with borrowers to modify the loans. Heimbuch said FirstFed forecloses only after analyzing 10 other options to offer the borrower, including lowering the interest rate; changing to a five-year, fixed-rate loan requiring payment of interest only; and writing down the loan balance.

Still, she said, up to 50% of borrowers who miss payments don't respond to letters and repeated telephone calls to see if something can be worked out.

Some customers had acquired second mortgages and couldn't make new arrangements with the other lender, she said. "I think some know they told us the wrong income and are afraid to come clean, though we would still work with them . . . to keep them in their homes if possible."

For struggling borrowers, it's a big mistake not to return such calls these days, said Gus A. Altazurra, a veteran mortgage executive who recently raised $10 million from private investors to buy and modify loans for which homeowners are still making payments.

"They're probably going to help you, given the current situation," said Altazurra, whose Irvine-based Vertical Fund Group has been negotiating with lenders of all sizes to buy loans. He said "a flood" of mortgages went up for sale in April after lenders closed their books on a horrendous first quarter.

Altazurra, who has paid as little as 31 cents on the dollar for some loans, said the terms of some mortgages made at the peak of the boom were hard to believe. One loan he bought from a Texas bank was to a borrower with a very low credit score -- 484 -- who refinanced and cashed out 100% of the equity in the property, he said.

Gentry, the other Orange County loan buyer, said he had obtained commitments from investors to provide $100 million in capital for workouts on loans that have stopped paying, current loans that can no longer be sold and foreclosed properties. He has bought nearly $50 million in mortgages and property so far.

Gentry purchased Lanning's loan in a pool of mortgages from a San Diego lender that was going out of business. He said that on average his private venture was paying 70 cents to 80 cents on the dollar for loans like Lanning's that were still current, and "less if the loans are nonperforming."

Lanning had no home equity left -- and thus had little incentive to keep sacrificing to make payments -- before he got the smaller, cheaper FHA loan. Now his outlook has changed.

"We can't do anything frivolous now," he said. "But if we do it right, we have enough. That other loan was just pushing us over the top."

The Country, the States and even the Counties and cities are more or less organized around the concept of bicameral legislatures, with checks and balances from the executive and judicial branches of government.

In all of those governmental entities there is not one person who has the knowledge or the authority or the accountability for the Mortgage Meltdown. It is impossible to imagine any smart regulation coming out of our current approach, so the inevitable conclusion is that the Mortgage Meltdown, the dot com meltdown, etc., will all happen again. The players will change but the game is the same.

So the first thing is to throw out all the proposals for future regulations or simply accept the fact that they won''t perform the basic purpose of government: to preserve society and protect the citizens from harm. 

Let's get specific about the mortgage meltdown: it happenned because the private sector was able to create the equivalent of money using investor cash under false pretenses. It also happened because the participants were able to do it without perceiving any risks or negative consequences to themselves.

While you might say that the mortgage meltdown has had plenty of negative consequences to the financail institutions and intermediaries who participated in this fraud, the fact is that very few of the decision-makers have suffered any negative outcome. They walked away with bonuses and golden parachutes. People who worked for them suffered loss of jobs and themselves are in difficult financial straits, but not the real decision-makers (the movers and shakers).

If you want this scenario to stop (yes it is still happening) then three things must be true:

1. Full disclosure to government must be filed with a governmental agency on any program that involves a loan. Visa and MasterCard require every card issuance program to be individually approved. If they understand this simple concept, certainly government can learn something from the private sector. No lender should be able to act as a pure conduit for a loan without losing their status as a financial institution. If that is what they want to do, they are a broker not a lender. Every lender should have risk or they should not get paid a dime and the borrower should be told that the lender has no interest in the loan other than getting the borrower's signature so that the lender can make a profit. If the fair market value of the house is stated incorrectly then all parties who had knowledge, despite plausible deniability, should be accountable for the difference.

2. The risk of imperfect disclosure and failure to perform in accordance with the fiduciary duties of a lender should be substantial and obvious and should be felt by the decision-makers. The same holds true for the seller of securitized products to investors. The simple test is this: if the borrower or investor knew what the lender or securities seller knew, would they have done the deal? If not, the full loss should fall on the companies and individuals who created these flawed programs.

3. Securitization of loans is not a good thing unless the investor fully understands the security he or she is buying. Allowing plausible deniability through reliance on rating agencies and insurers will always leave the investors holding an empty bag. The sellers, the rating agencies and the insurers should be required to file in the public record everything they know about the security and what they did to assure themselves that the facts were true. Later, if the deal falls apart, investors have defendants who are in clear violation of their duties and government has a clear case for prosecution.

I would give credit for the term "moral constipation" but I can't remember where I heard it. I invite all who read this to give me the creator's name so I can correct this blog and give him the attribution he deserves. 

It appears that we can all agree on one thing regardless of which candidate, party or ideology we subscribe to --- The United States of America is on a path of moral bankruptcy, where ethical concerns and choices between right and wrong have been shoved off the table and instead convenience and self-aggrandizement is accepted by "we the people" with far more tolerance than is acceptable to me.

There is practically nothing so dear to me as my own opinion of my own intelligence. And yet I am dumfounded by the lack of outrage as corporate America and Government join hands in our pockets, in our lives, in our families, and in our minds. Protests erupt about the Olympic flame --- but where is the outrage, the "I'm mad as hell and I won't take it anymore" about the following:

1. Diesel fuel is $4 per gallon here but across the border in Mexico it is $2. Anyone care?
2. Real inflation for the Average American is in excess of 15% and climbing. Anyone interested?
3. Exxon made $11 billion last quarter. The rest of us made less at the end of the month because the money went to Exxon. Is there any connection between that fact and the Presence of an Oil man in the White House/ How about a vice President that headed up the very company that profited the most from the Iraq war? Is this so boring that MSM should be ignoring it just because nobody seems to want to anything about it?
4. By 2009, 1 person in 10 will be on food stamps in the United States. Shouldn't that be interesting to both sides of the "Aisle?"
5. The average person in the United States is in debt on credit cards and other consumer and real estate loans in an amount that they can never repay, whereas no other modern country has that problem. Why?
6. Interest on debt accounts for more expenditure by government and individuals than anything else in the United States. Trillions of dollars of transfered wealth from those who now can't eat to those who don't know what to do with the money. What is being done about interests rates that guarantee non-payment and assure financial enslavement? (By the way medical care is second is now touted to be the "employer of last resort").
7. Houses were appraised at $500,000 and within days were revealed to have values of less than 70% of that. People were prompted, tricked and coerced into signing mortgage documents they didn't understand, in violation of law (not that anyone has been prosecuted), and now the borrowers are blamed for a scheme they still don't understand. Now millions of American citizens are or will be broke, homeless and jobless. We know who did it and how it happened but MSM doesn't care about that.
8. All of MSM (Main Street Media) is now controlled by a handful of people who let us hear only the things they want us to hear and only in the ways they want us to hear it. If you want news, go to the Internet, if you want infotainment watch TV or listen to radio. 
9. How many flag draped coffins can be hidden from view to keep the Iraq war "sanitary" and keep the public distanced from the gruesome reality of war, death, disfigurement, famine, disease and moral decrepitude? And why is MSM going along with  the ban on pictures of coffins? Isn't the death of young loved members of families who made the ultimate sacrifice worth reporting?
10. How many veterans need to be homeless and wandering through the streets with head injuries before we think to ourselves "you know, there is something not quite right about this."
11. We have outsourced the most sensitive manufacturing of top secret defense components to China which just happens to be the only real military threat to our national security. And we have financed their military expansion by encouraging their economic growth to the point where they now have a  stranglehold on our country --- they own most of our debt, they manufacture most of our goods, they process most of our food, and they are the most prolific source of spying in the United States. Thus whatever they don't get legally, they get illegally. 
12. MSM (main Street Media) has virtually eliminated their staff of reporters, because they get everything off the newswires and they make up the rest. Most of the time spent on "news" channels consists of opinions about gossip. Interesting, perhaps, but useless for those of us who would like to evaluate our options on voting on issues and candidates.
13. It is illegal to counterfeit money unless you are a foreign country (North Korea for example) or you are a Wall Street investment banking firm that creates money supply by calling them "derivatives, collateralized debt obligations" and such. Between North Korea's supernote and and the $500 trillion (yes with a "T") in derivatives, credit swaps etc. out there it can be no surprise that no government can control the effects on world monetary supply ---- that has been outsourced to the private sector as well. 
14. MSM (Main Street Media) now presents us with pretty faces, some nice looking legs, a tempting bust line, and a teleprompter written by people who have not researched the validity of the reports in 10 years.
15. Prescription medications are "so dangerous" that you can't get them without seeing a doctor, but they are advertised directly to consumers. Is this what we want our children to hear and see? You can get a Bud Lite or a Absolute martini without a doctor's prescription and drink all you want. It's only when you kill or main people with your driving or other physical abuse that you are held accountable. 
16. MSM (Main Stream Media) provides us with pundits and moderators who are undereducated, and inculcated with the sole core value of saying something that will increase the ratings and thus revenues of the media in which their comments appear. 
17. Prescription medications cost $20 per pill here and as little as $0.50 in other countries easily accessible from the U.S.
18. The total expenditures for medical care, drugs, products and associated services is around 2-3 times the amount spent by any other country or group of countries. The average U.S. Citizen is in constant danger of dying for lack of medical care because he/she is probably not covered entirely for the medical event, because he/she was never given a preventative regimen that is regularly followed in other countries, or because they are simply barred from access to medical system. 
19. Despite the amount we spend per person, we get less care, and suffer from shorter longevity, higher infant mortality, shorter height, than at least a dozen other countries and sometimes as high as 40 other countries depending upon which metric you are interested in. To say we lost our "lead" is not the point. 
20. The average person educated in the U.S. has slipped from 1st in world ranking to around 20th. Does that bother anyone?
21. Bullying has spread through every school, public and private and is spreading into the marketplace. Hello? Anyone there?
22. We have lost our way. We worship money in all its forms more than we worship God. Every day we perform acts that involve our worship, use and belief in money. Most of us spend at best one day per week for a couple hours worshipping God.
23. MSM (Main Street Media) thrives on conflict over minutia (bullets in Bosnia, a flag pin probably made with lead in China, and statements of "associates" that are made into controversial "positions") rather than actual issues and characteristics about the candidates themselves. We allow this by talking about that the pundits tell us to talk about. And what we talk about causes us to vote against our own interests.  
24. When we tried importing from China and India the prescription drugs at a fraction of the cost that the drug companies were charging us, the government stepped in and said it was unsafe and  could result in tainted drugs. Now the drug companies have eliminated American jobs and outsourced the manufacture of the drugs to where? --- India and China --- and we have what --- tainted, deadly drugs of dubious value to begin with and with side effects that include anal leakage and death. 
25. How many times do we need to hear that pharmaceutical companies spend $5,000 on every man or woman doctor in the U.S. to push their stuff before we make THAT an issue?
26. The war on drugs is making a fortune for people on both sides of the law, including the privatization of prisons and huge profits from private ownership of prisons, 75% of the inmates of which are there because of minor drug charges. There is no war on drug use and there is no war on drug supply. That is why we have drugs in America.
27. How many times do we need to be disappointed in a politician, whom we knew was taking money from the medical- pharma complex, insurance companies, oil companies and credit card companies? What makes us vote for these people?
28. Where is MSM "keeping them honest" by reporting discrepancies between promises and action?
29. How many dogs need to die before we accept that they are the canary in the mine shaft and that the rest of us are just as much at risk because the tainted, poisoned food is all coming from the same place now?

I could go on, but I invite you to add your own comments to the list. And while you are at it, why not answer this question: What specifically are you going to say to your friends and family about these issues and how will you vote?