Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Monday, April 25, 2011

Michigan State Police Extracting Cellphone Data During Traffic Stops

Since 2008, the Michigan State Police apparently have used devices in their patrol cruisers capable of extracting data from a driver's cell phone.  The troubling part is that it may be possible to tap your cell phone during a routine traffic stop.

The data extraction device, Cellbrite UFED, can pull existing, hidden, and deleted phone data, including your call history, text messages, contacts, and images; even your geotags. It can also extract ringtones which can be highly incriminating in some situations. These devices can crack into more than 3000 cellphone models and easily blow-thru passwords.

All this, of course, raises some legitimate concerns under the Fourth Amendment's "search and seizure" clause.   Do you have a reasonable expectation of privacy in the data contained in your cell phone once you take that puppy on the road?

Along these lines, the Michigan Chapter of the ACLU has filed a freedom of information act request with the MSP seeking detailed information on how the device is used.  In response, the MSP has issued their own press release asserting that they do not use the data extraction device during routine traffic stops, do not use the device without a prior search warrant, and cannot extract data from the phone without first having possession of the phone.

The MSP has also asserted that compliance with the ACLU's document request would be costly but they would be delighted to produce the records in exchange for a half million dollars to cover the costs.

Stay tuned for the law suit.  In the meantime, to protect your privacy when the lights and sirens erupt behind you on your next traffic stop, you should probably power down your phone.
Cellbrite UFED

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Saturday, April 23, 2011

Court of Appeals Rules that MERS Cannot Foreclose Via Advertisement

Do you know if MERS owns your home?  MERS [you know, the Mortgage Electronic Registration System] has been getting drawn deeply into the nationwide mortgage meltdown.

The Michigan Court of Appeals recently handed MERS some more bad news here in Michigan: they cannot foreclose by advertisement because the COA ruled they do not hold an interest in the indebtedness under the applicable Michigan statute.

In the 2-1 decision in Residential Funding Corp v Saurman, two cases were consolidated which posed the same legal question: whether the mortgagee, MERS, could foreclose by advertisement rather than filing a foreclosure lawsuit (a "judicial foreclosure"). 

The respective home owners in these consolidated cases each defaulted on their mortgages.  MERS instituted non-judicial foreclosures by advertisement, as permitted by statute.  The properties were then purchased by MERS at sheriffs' sales.  At this point, the respective homeowners from Kent and Jackson Counties, challenged the foreclosures on the basis that MERS could not foreclose via advertisement as they did not fall within the definition of a "mortgagee" under the statute.

Just what is MERS?  The Saurman opinion provides a good clean glimpse.  According to the Court of Appeals:

MERS was developed as a mechanism to provide for the faster and lower cost buying and selling of mortgage debt.  Apparently, over the last two decades, the buying and selling of loans backed by mortgages after their initial issuance had accelerated to the point that those operating in that market concluded that the statutory requirement that mortgage transfers be recorded was  interfering with their ability to conduct sales as rapidly as the market demanded.  By operating through MERS, these financial entities could buy and sell loans without having to record a mortgage transfer for each transaction because the named mortgagee would never change; it would always be MERS even though the loans were changing hands.  MERS would purportedly track the mortgage sales internally so as to know for which entity it was holding the mortgage at any given time and, if foreclosure was necessary, after foreclosing on the property, would quit claim the property to whatever lender owned the loan at the time of foreclosure.
In the 1990s, the early challenges from county officials throughout the nation to the MERS system of high-speed and cheap securitization went unnoticed in favor of the mortgage lending industry.  Remember Andy Jacobs and his World Wide Financial ads?

As the MERS system of speed collateralization took off, it developed a process of instant deputization, where thousands of loan officers received “certifying resolutions” in minutes via the Internet. These financial deputies or, in some cases "agents", were authorized to process mortgage transfers and foreclosures on behalf of MERS.

As usual, all good things come to an end.  This blog chronicled the unraveling of MERS in an earlier post.  This Michigan Court of Appeals' decision, published thus binding on circuit courts, is just the latest in a series of legal losses for the corporation.

All this has the board of directors of the Virginia-based MERS Corporation very nervous. MERS is a private mortgage registry database that has essentially replaced our nation’s tradition of publicly stored land ownership records. MERS’ CEO, R.K. Arnold, among the founders of the corporation, jumped ship in January.

Like the banking system, however, the mortgage lending system cannot simply fall apart.  This is a developing problem you will be hearing more about in the months and years to come.

In the meantime, if you are experiencing mortgage payment difficulties in Oakland County, the Oakland County Treasurer has partnered with GreenPath Debt Solutions, the United Way and others to establish the Oakland County Foreclosure Prevention Initiative.   Simply click on this link or call (888) 350-0900 for assistance with the eviction process or to speak with a certified housing counselor.

For the scholars among our loyal readers, the University of Cincinnati Law Review has published a comprehensive article on MERS' intimate relationship to the mortgage industry and the contemporary foreclosure process.

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Thursday, April 21, 2011

High Court Rules Religious Mom Cannot Homeschool

Admittedly, the New Hampshire Supreme Court's recent decision favoring public school over homeschooling by Mother does not bind any of the courts in our jurisdiction.  Nevertheless, the ruling is instructive for anyone wrangling with family court issues.

This blog tracked the dispute in an earlier post as the case was submitted to the High Court following oral arguments.

Here are the basic facts: Post-divorce, Mother was homeschooling her daughter over Father's objection.  The religious component of Mom's in-home curriculum gave Dad indigestion, so he made an appointment with his divorce lawyer.

The family court appointed a Guardian Ad Litem to review the matter and make a recommendation to the judge.  The GAL concluded that public school was in the best interest of the minor child and so ruled the family court judge.

On appeal, Mother broadly challenged the judge's power to do so, raising a host of religious-based First Amendment arguments. The NH Supreme Court affirmed the family court on narrow grounds, finding that within the context of this particular dispute, the family court's discretionary powers were properly exercised in favor of what it determined was in the best interests of the parties' daughter.

The "best interest" determination included attendance at the local public school.  The child was ordered to progressively integrate into the public school curriculum, starting with three 5th grade classes.

Some readers will recognize this dynamic.  In his petition, Father alleged that due to the Mother's religious-based schooling, and through a complete immersion into Mother's church, daughter became withdrawn from Father's world (i.e. his new wife and child).  His officially stated fear was that his daughter was becoming isolated within Mother's home, and within her church, and this isolation was preventing her development.

For her part, Mother proclaimed that the additional contact between Father and daughter, and daughter's introduction into the public school system had a negative impact on the daughter, and that daughter (along with Mother) was suffering "extreme difficulty" with the court-ordered lifestyle modification.

In the end, the NH Supreme Court was not persuaded by Mother's high-flying, SCOTUS-citing First Amendment arguments.  The High Court ruled that it was the mandate of the family court to call the balls and strikes in this parenting dispute.

I, for one, feel very sorry for this now-confused little girl.  Not only is she being thrust, perhaps too late, into the main stream of our culture, she is also contending with her Father's new family; all within the context of her Mother's teachings, such as they are.

When parents have joint legal custody but cannot agree on basic issues of schooling and domicile, it is one of the saddest specters in the modern family court.

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Saturday, April 16, 2011

Internet Gambling Stung by Feds

Like the "war on drugs", there has been much federal focus on eradicating those ubiquitous illegal gaming sites.  Yesterday, the feds moved against the owners of two of the biggest sites on the web.

Indictments were unsealed by the U.S. Attorney in Manhattan against the owners of PokerStars and Full Tilt Poker.  The feds have seized all their holdings in the United States.

You may recall that back in 2006, Congress passed the Unlawful Internet Gambling Enforcement Act, an anti-gaming law prohibiting banks from processing winnings from internet gambling sites.  PokerStars and Full Tilt Poker, among other sites, developed ways around the law, disguising gamblers' payments as sales for jewlery, flowers and other goods.

The U.S. Attorney alleges the schemes amount to bank fraud and money laundering.  The case is complicated by the foreign residence of the primary defendants.  Two of the gambling sites, for example, are located in Ireland.

At least 3 arrests were made, however, in Las Vegas and Utah, while the FBI coordinates with Interpol to secure nearly a dozen other named defendants.

The Internet domains of the main sites have been seized by the FBI with a notice posted on the home pages warning would-be Internet gamblers of possible crimes they could be committing under the United States Code.  Approximately 15-million Americans visit gambling sites on any given day.

Well, looks like this could be the end of Internet gambling in the U.S.

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Monday, April 11, 2011

Collateral Consequences of a Guilty Plea

When an accused pleads guilty to a crime, the complexity of our modern legal system often leaves some of the significant consequences of the plea undetected.  After all, that's why you hired a lawyer in the first place, right?

These undetected consequences include quasi-criminal matters such as immigration as well as less obvious examples like disqualification from certain career paths or professional degrees; or affecting a client's parent-child relationship.

Recognizing this growing problem back in 2006, the State Bar of Michigan's Criminal Issues Initiative sought to educate criminal defense lawyers and the public by developing material useful to making a fully informed decision.

In addition, the SBM's website provides useful and current information for those either facing a criminal plea, or those attempting to recover from one.  The web site includes a checklist for clients to complete, the Michigan Re-entry Law Wiki link, and information about housing, immigration, employment, and child/parent issues.

Just recently, the SBM's Representative Assembly (the State Bar's elected governing body) passed a resolution to support legislation for the collection and notification of all collateral consequences involved with a criminal guilty plea.

Attorneys are challenged to keep-up with the multi-faceted and ever-expanding consequences of criminal convictions in our modern world.  When facing the prospect of a criminal guilty plea, even for a misdemeanor, be sure you hire a lawyer that knows about such consequences.

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Sunday, April 10, 2011

Michigan Attorney General Files Amicus Briefs in Medical Marijuana Cases

Michigan Attorney General Bill Schuette has filed amicus briefs in two medical marijuana cases pending in Michigan appellate courts; one case is from Oakland County, the other from Isabella County.

The Oakland County case, the well-known People v Redden debacle, involved whether an unregistered marijuana user could nevertheless assert the defenses set forth in the Medical Marijuana Act. That case is pending before the Michigan Supreme Court.

In the AG's Redden brief, the assertion is that only qualified patients may avail themselves of the statutory defenses set forth in the MMA. The Court of Appeals held otherwise.

The case from Isabella County tests whether anyone can earn a profit from their pot-growing efforts.

We will monitor each of these cases and report back to our readers.

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