By Timothy P. Flynn

Since March 2009, our law firm has been steadily contributing content to this blog.  Here we are, coming-up on our 5-year anniversary, and we would like to take a moment to thank the Oakland Press, our loyal followers, and readers that have taken a moment to scan a post or to post a comment to this blog.

Our 350 posts have garnered nearly a quarter million page views and thousands of comments.  We are looking forward to the next 5-years. What will blogs look like in 2018?

We here at the Law Blogger have imparted law-related content that we hope our target audience has found informative and interesting.  Keeping up with the law is what we do.

Every so often, one of our attorneys is asked, "how do you know what to post?"  Invariably, we respond that, in the continuous perusal of our legal news feeds, we "know-it-when-we-see-it".

Here is a sample of what we've served-up on tap over the past half-decade:

• Our first blog post in March 2009; 

• First post on California's same-sex marriage case that went all the way to SCOTUS, decided last June.  We saw this issue early on and have been tracking the collection of cases ever since; 

• Michigan's passage of the so-called "Super Drunk" law; 

• Medical Marijuana; since September of 2009, we've been tracking this interesting law here in Michigan and across the country [note: we utilized the funky spelling adopted in the MMA -marihuana- but have since dropped that convention for obvious serarch-related reasons];

• More recently, we picked-up the trail on the NSA's invasion of privacy and the secret federal surveillance courts; and 

• The occasional tip or topic related to divorces and family law; we've even tried to make probate law worth the read.

We sincerely hope that you enjoy this blog and get some useful information from our posts from time to time.  Thanks again for taking a moment to peruse our content.  We would love to hear from you about what you find most interesting.

www.clarkstonlegal.com

info@clarkstonlegal.com

Time and again we hear this sage advice, usually from our probate attorney friends: "get your estate plan in order because you want to avoid dying intestate" [i.e. without a will or estate plan of any kind].

As a Public Administrator here in Oakland County, I had to appreciate this story from last Sunday's NYT: He Left a Fortune, to No One.  The article profiles 97-year old Holocaust survivor Roman Blum whose estate is estimated to be worth $40 million, but who died last year without a will or any other estate plan.

Those that knew Mr. Blum, a resident of New York, heard him tell of a wife and child that perished in a concentration camp in Poland during WWII.  His American wife died in 1992; the couple was childless.

One of Blum's friends interviewed in the article stated that she was able to get Roman to agree to see a probate lawyer in order to execute an estate plan.  She was even going to take him to see the lawyer after she returned from a trip, but it was too late -Mr. Blum passed away before she returned.

So what now becomes of Mr. Blum's substantial estate?  It is in the hands of a Public Administrator; an attorney that is appointed to manage the estate of a decedent when there is no family or other specifically nominated persons to do so.

And where does Blum's significant estate go?  To the state of New York.  And I am sure we can all agree that this is the best repository for Mr. Blum's millions.

Blum is probably turning over in his grave; also something that the Public Administrator had to arrange.  One of the decedent's friends, himself a Holocaust survivor, put it bluntly in the NYT article: "He was a very smart man but he died like an idiot."

Don't be that guy.  Hire a probate lawyer to plan your estate.

www.clarkstonlegal.com
info@clarkstonlegal.com

Around the turn of the century, Michigan's so-called "rape" laws underwent a sea-change.  The Legislature re-wrote the law of sexual assaults into what is now classified as "criminal sexual conduct" [CSC].

There are numerous facets to this law, including the ages of the accused and the victim; their relationship; the use of force; and many other factors.  Once convicted under the CSC statutes, a defendant then faces the onerous registration requirements under the Sex Offender Registration Act.

Recently, our law firm was involved in two CSC cases that were headed for jury trials; one in Genesee County and one in Oakland County.  Each case resolved with plea agreements that preserved our clients' freedoms, but also included punishments that were justified under the circumstances.

The case in Genesee County involved date rape and resolved with hard-bargained plea and sentencing agreements that reduced the degree of the charges from CSC 3rd to CSC 4th.  The sentencing agreement featured a no-jail guarantee.  The only way these agreements were reached was because our lawyers were prepared to try the case; and the accused had a good defense.

Our Oakland County case was not as strong.  The accused wanted to utilize a defense that his young victim looked years older than she actually was.  When a victim is between the ages of 13 and 16, however, the Michigan Supreme Court long-ago held that an accused's reasonable mistake in the age of the victim is not a defense.

In fact, this defendant had no defense, even though no force was used and the evidence showed that the young victim pursued the relationship with the accused and "consented" to sexual contact.  If convicted, he also missed the 4-year "Romeo and Juliet" age-gap that would have afforded him the opportunity to convince the judge that he should not be placed on the sex-offender registry.

Between our client's willingness to push the matter to trial, the reasonable approach of the judge, the open-mindedness of the prosecutor to resolve the matter short of trial and, perhaps most importantly, the victim and her family's unwillingness to take the matter to trial, our client was offered a no-prison guarantee on his sentence, with any jail term suspended on condition he successfully completed probation.  A very good result under such tough circumstances.

Sexual assaults are horrible crimes that, when reported, often make the victim pay.  They frequently go to trial.  Most often, such cases become an exercise in damage control.

www.clarkstonlegal.com
info@clarkstonlegal.com

Over the past several years, we here at the Law Blogger have noted several catchy marketing schemes involving divorce lawyers, especially from New York.  These schemes involve a bait and switch by promising a quick result for cheap, or just offering a divorce for an impossibly low fee.

Key word: impossible; at least in most cases. 

The first campaign we noted was touted in Manhattan as the "one-hour-divorce" for about $500.  For the low fee, clients meet with a paralegal and lawyer at the NYC firm to provide their personal information.  The details of their settlement are also, briefly, discussed.

The clients are next provided a ten dollar gift certificate to either McDonald's or Starbucks to burn-up the last hour of their ill-fated marriage while the law office prepares the canned document package for a "one-size-fits-all" divorce.

You cannot have issues, however, or it will cost you extra. The basic premise is that the divorce has to be absolutely 100% "pro confesso" (i.e. uncontested). Basic input is collected from the client and a set of pleadings are prepared within the alotted hour. A standard judgment is generated and executed for entry and filing with the court at the appropriate time, usually six months.

Hopefully nothing changes during the statutory wait period, or all bets are off. Also, under general rules of legal ethics, the firm could not represent both parties to the divorce; but they've apparently figured out which one is their "client".

If the divorcing couple has children, property, or needs support, these issues can be handled in an hour; but will cost more than double. A Prenuptial agreement would all but disqualify the client from the discount program, although a "conventional" divorce would still be available.

Not to be outdone, there is a storefront in Brooklyn that has a sign advertising divorce for $399.  It turns out that this storefront is not a law firm, but rather the office of a paralegal that merely acts as a scrivener for the divorce forms required by New York state laws. 

For the stated fee, the paralegals will assist you in the completion and filing of the forms which are then filed with the court.  Then, it's "up to the judge".  Translation: you are on your own.

This advertised fee is also a classic bait and switch.  Not only are there extra fees for just about everything, you also need to pay filing costs and court fees. 

Apparently, the idea behind the sign is to get you in the door for the advertised low fee.  Once inside, then you learn that you, like 99% of the rest of the population, do not qualify for the low fee, but for a few hundred more bucks, they will take care of you.

It is "buyer beware" for these outfits for sure.

Here in Oakland County, we here at the Law Blogger and at Clarkston Legal, believe that the most important asset of any divorce lawyer is their reputation.  If the attorney is experienced and gets good results, it will be reflected in their fees.

www.clarkstonlegal.com
info@clarkstonlegal.com

Jeeze, the American media sure loves a good capital murder trial; especially one with the whiff of religion mixed with the spectre of the death penalty.  Plenty of grist for their insatiable mills.

Not since Under the Banner of Heaven, Jon Krakauer's fascinating account of the 1984 murders of a Mormon housewife and her 15-month daughter in Utah at the hands of her brothers-in-law, has the Mormon faith been enmeshed with a lurid murder like the trial grinding-onward in Phoenix, Arizona.

Yes, that would be the capital murder trial of the Casey-Anthonyesque "former model", Jodi Arias; accused of shooting, then slicing the throat of her Mormon boyfriend, Travis Alexander.  As a criminal defense lawyer traveling to circuit and district courts across Michigan, I've had plenty of time to listen-in on this sensational trial over the past two-months.

While quite rare to have any defendant take the witness stand in her own defense, it is exceedingly rare for a defendant accused of murder to take the witness stand in a jury trial.  Rarer still is to have the ongoing cross-examination of that defendant available in real-time for more than two weeks.

Cross-examination is the art of controlling a witness in order to convey a story, or a message, to a captive audience of 12 jurors; each of whom have somewhere else to be.  It is a skill that few lawyers can pull-off very well.  Like golf, you cannot just pick it up on the occasional weekend.  While there are boatloads of lawyers out there, only a handful have viable cross-examination skills.

The Jodi Arias trial is so lurid, with such high shock-value, it is a cross-examiner's dream.  A county prosecutor good enough to be assigned to a high-profile case is going to be a proficient cross-examiner.  Just listening to Juan Martinez cross-examining Ms. Arias, as a criminal defense lawyer, is like being in a trial clinic.

But 18-days on the witness stand?  Most judges have local court rules allowing them to control the decorum and procedure in their courtrooms, especially during a jury trial.  This power includes limiting time on the witness stand.  Most court watchers agree that this trial has turned into spectacle and has sailed over-the-top.

On the other hand, once you allow a genie like this out of the bottle, how then can you limit its scope when it takes on a life of its own.  If the Arias defense team tosses her a hundred softballs on a myriad of subjects in her direct examination [i.e. dates, times, family history, abuse history, sexual habits; each in excruciating detail], then what is a prosecutor to do but dutifully explore each and every door that has been thrown open.

Add to this the national media attention to the case, and viola; the politician within the judge in charge of such a circus is not going to prematurely turn the nation's eyes away, especially when that judge is center stage for the ever-ready lens of the voracious national media.

Nor can we forget to account for the potential value to the defendant, win or lose, of grabbing America by the shorties for as long as she can hold-on, in order to maximize her capital in the notoriety bank; the added-value could come in handy further down her tough road ahead.  From a long-term strategy perspective, this makes sense if you are Ms. Arias; and from what I've heard, she's got her head in the game.

We here at the Law Blogger defend the accused in jury trials all the time; admittedly, not high-profile murder cases.  We know some good judges here in Oakland County that could fit five or six murder trials into the yawning span of the Arias trial.  In the end, this spectacle amounts to a huge waste of legal talent and judicial resources.

www.clarkstonlegal.com
info@clarkstonlegal.com

A recent study published by the Bowling Green State University concludes that divorce has replaced widowhood as the primary reason many seniors are single later in life.  No surprise there, as the United States has long held the highest divorce rate in the world.

As the baby-boomer generation ages, more of its members have been divorced than in any prior generation at any point in history.  Add to this the more complex marital biographies of average baby-boomers [second marriage, recently divorced, ever divorced], and you cannot ignore the growing prevalence of divorce in our society.

The study concludes that as widowhood has declined over the past two decades, the divorce rate among the middle-aged and seniors has doubled.  Also of note in this demographic is that, among divorced seniors, they achieved this status much earlier in their lives than in the past.

Another conclusion drawn by this study is that over the next two decades, as the growth of the "older" population accelerates, so will the divorce rate among mature adults.

One option to consider is separate maintenance.  This option, although not for everyone, has the advantage of allowing an unemployed spouse to maintain health insurance coverage.  In most cases, this saves the unemployed spouse approximately $500 per month by not having to  pay an insurance premium.

If you are over 50 and facing the tough options of divorce in Oakland County, contact us for a free consult. We can  provide you with answers to your questions and concerns.

www.waterfordlegal.com
info@waterfordlegal.com

Recently, the Oakland County Circuit Court announced the creation of a business court similar to those implemented by Kent and Macomb Counties over the past year.  The business court here in Oakland County has been "operational" since April 1, 2012, and is slated to continue as a pilot program through 2014.

The business court's "pilot" status was created by an administrative order issuing from the Oakland County Circuit Court.  The business court is designed to study the effectiveness of implementing a specialized case management system to handle specified business-related litigation.

Judges sitting on the Oakland Circuit's court of general jurisdiction (i.e. civil-criminal dockets) will all receive cases on the business court docket.  To be assigned to the business court, a case must involved alleged damages of $500,000.

There are many disputes that will be excluded from the business court.  These will include consumer claims against businesses, personal injury and wrongful death cases, medical and legal malpractice law suits, and commercial landlord tenant cases, among a handful of other types of disputes.

So what's going to be different in the business court?  Parties, for example, will be required to make various pre-trial disclosures early in the case [i.e. within 42-days of the initial pleadings]; a joint pre-trial report will be submitted to the business court; an initial conference will be scheduled within 21-days after the pre-trial report is submitted; and the judge will issue a final scheduling order after reviewing the pre-trial report.

The idea behind this modified procedure is to identify and hone the issues and to schedule the court's resources in accord with the specific issues to be presented in the case.

Given the budgetary restraints imposed on the circuit court in the past few years, cutting millions from the budget, the Oakland County business court design had to be cost effective.  This is why there will be no specially appointed judge assigned to a business docket.

Essentially, this specialized court will have to run within the confines of the existing circuit court.

www.clarkstonlegal.com

info@clarkstonlegal.com

This Thursday, I will be presenting in Seattle, WA to a group of lawyers from around the country on the topic of social media.  Not considering myself an expert in the field, I was surprised to get the invitation to join an esteemed panel.

Here's the catch; the good folks at Avvo.com, a website designed to interface consumers of legal [and health care] services with the providers of those services, wanted a panel made of practicing attorneys; not just the usual "social media marketing" consultants.

Lawyers are not just dabbling in social media these days.  For most, getting connected and developing a robust electronic profile is now a "catch-up" exercise.

So I will be addressing conference attendees on how, as a busy practicing attorney, I have utilized social media in my law practice.  Along with the other panelists from around the country, I will be sharing my experience with utilizing social media to get our law firm message out to our target  audience.

Thanks, in part, to the followers of this blog, I can point to sustained search results placing us near the top of hyper-local searches for legal services in Northern Oakland County.

As a preview to this presentation, I was interviewed by Colin O'Keefe [from the Seattle area] of LXBN TV.  Here is a link to Colin's interview.

www.clarkstonlegal.com

info@clarkstonlegal.com

Attorney Henry S. Gornbein

This post is from the Huffington Post's Divorce Blog.  The author is Henry S. Gornbein, a colleague of ours from Oakland County that specializes in divorce and family law and a regular contributor to the Huffington Post.  In this post, Henry really captures the critical elements of a good family court judge.

Here is what Henry had to say on the subject:

In over forty years of practicing family law, I have appeared before hundreds of different judges. I have found that some are rude, arrogant, and suffer from what is known as black robe syndrome. This means that they have forgotten -- or never knew -- what it was like to practice law, and have a holier than thou attitude. Most judges are considerate, will listen, and will try to resolve issues in cases.

Here are some of my thoughts on the attributes of a good judge in family law:

1.       A judge should remember that he or she may also be divorced. I have represented judges in their divorces before, and they are human just like everybody else.

2.       A good judge should listen to the arguments of attorneys and show compassion.

3.       A good judge should not lose control of his or her court room.

4.       A judge should not let arguments go on endlessly, and give everyone a chance to speak. The judge should also know when to cut arguments off in court.

5.       A good judge should be fair and not biased.

6.       A good judge should be decisive. One of the most frustrating things for attorneys are judges who will take matters under advisement, or fail to come up with a ruling. People need rulings so that they can go on with their lives. Even if an attorney or client disagrees with the ruling, it is better to have a ruling than not to have any decision made by the court.

7.       Judges should be on time. If court is set for 8:30 or 9:00 a.m., judges should be prompt. One of the most frustrating things for litigants and their attorneys is to sit around for hours on end waiting for a judge who does not start court promptly.

8.      Some judges will refuse to talk to attorneys in chambers about a case. I think that is wrong. I feel very strongly that a meeting with attorneys through a pre-trial, where a judge will listen to some of the key issues and then send a signal, can lead to a settlement. I also believe that a good judge will set up meetings in order to settle cases rather than just saying, "if you can't settle, then call your first witness." Trials should be a last resort, not a first resort. A good judge knows that.

9.       A good judge should always be in control of his or her court room and docket, but also should not be punitive or refuse to allow people to have their day in court. There is an old saying that justice delayed is justice denied. Cases that are set for trial which are continually adjourned because of court docket conflicts or other reasons, help no one. While I believe that there should be reasonable adjournments granted when an attorney requests one, there should not be unlimited adjournments of a hearing or trial of a case.

10.   I have found over the years that if the judge will start a trial, listen to the parties, allow some evidence, and permit the litigants to get whatever he or she has off his or her chest -- the case can often be settled. Getting that day in court, getting a chance to speak and feeling that a litigant is heard can often lead to a resolution of a case without the need to go through an entire trial. I have had judges over the years who would give people a chance to speak in an informal manner, and then get down to try and settle the case. Letting someone be heard, letting someone feel that his or her thoughts and wishes are important, is a good way to lead to a resolution of a case.

11.    A good judge should show respect for the attorneys and for the litigants, and a good judge should expect respect in return.

12.    In our multi-cultural, social and ethnic society, a judge should be sensitive to religious, ethnic, racial, and cultural differences. I have had judges tell me that certain cultures act in certain ways, and allowing these cultural differences to be recognized in a respectful manner can lead to a resolution of a case.

13.    In making a ruling, a good judge should be clear and concise, and explain what he or she is doing and why. Too many times I have had attorneys and litigants walking out of a court room shaking their heads and wondering what the judge did and clearly not understanding what the ruling was based upon. This is not good for anyone.

14.    Last, but not least, just like a good lawyer understands that a trial before a stranger should be the last resort, not the first, a good judge should understand that also. A judge should leave plenty of opportunity for resolution of a case short of trial either through mediation, negotiations or sometimes, arm-twisting by the judge.

Well put Henry; we could not have stated the matter any better.  Clearly, four-decades of practicing family law has given you some very valuable insight.  Thanks for sharing your thougts.

www.clarkstonlegal.com

info@clarkstonlegal.com

A recent 2.35 million dollar Macomb County jury verdict shines a light on the ownership and practices of a nursing home in St. Clair Shores.  Bankruptcy and missing records clouded the identity of the real party in interest in a negligence law suit resulting from the 2008 choking death of a resident.

Turned out to be the Nightingale East Nursing Center, owned in part by a now-defunct company, and eventually traced to SavaSeniorCare, an LLC located in Atlanta, GA.

In the litigation, St. Clair Shores attorney John Perrin experienced an evidentiary mistrial and a mishandled document request in clawing his way to the jury verdict.  For their part, the defense attorneys claim that the botched corporate disclosure was not intentional.  Looking for the upside, defense attorneys Plunkett and Cooney (Jenny Andreou) claimed a partial victory through limiting the "non-economic" damage component of the verdict; a motion for remittur has been filed.

This death resulted from a resident choking on a golfball sized meatball; a largely unforeseeable event.  The jury found other liability factors in awarding plaintiff millions of dollars.  Obviously, we want to avoid this fate for any of our families and loved ones that are placed in a nursing home.

Serving as the guardian for more than 100 individuals, many of whom have been placed in nursing homes, I have learned that you can never pay close enough attention to the ward's care.  Complaints against licensed facilities are common and serve the purpose of compelling care improvements.

Nursing homes, assisted care facilities, and adult foster care residences provide a dizzying array of care choices and regulations.  Making the right placement for a family member or loved one is a critical decision.

In Macomb County, follow this link for skilled and basic care nursing homes.  In Oakland County, follow this link for the same information.

www.waterfordlegal.com

info@waterfordlegal.com

This past week, Governor Rick Snyder issued an executive order appointing 10 people to serve on an "advisory commission".  Their mission: to quickly assess and make recommendations to the executive and legislature about the delivery of effective legal representation to the indigent accused.

Along with the 10 gubernatorial appointees, the commission also includes state legislative leaders from each political party; two from the state house and two from the state senate.

In reviewing the Governor's appointments, it was good to see Oakland County well represented.  Oakland County Circuit Judge Colleen O'Brien is on the commission along with former Oakland County Bar Association President Judith Gracey.

The problem presented to the Commission is how to provide effective assistance of counsel, as guaranteed under the United States and the Michigan Constitutions, for accused individuals that cannot afford to hire a lawyer.  Michigan is considered to be among the worst states in the Union in providing legal services for indigents.

This blog covered the problem last October when the Michigan Supreme Court reversed course in the Duncan v State of Michigan case, granting summary disposition to a constitutional challenge to our system of court appointed legal counsel.  So now the executive branch will make an attempt to fix what most everyone agrees is a broken system.

Here in Oakland County, this blogger has observed many a colleague providing quality legal service on a court-appointed [thus, low paying] basis.  A court-appointed lawyer may go through 50 pleas before taking a case to trial.

Similarly, at the appellate level, roster attorneys for the Michigan Appellate Assigned Counsel System subsist on a steady diet of guilty plea appeals which are essentially thankless fools' errands; done dirt cheap.  These MAACS attorneys, however, wait for a legitimate appellate assignment to come along, providing the opportunity to file a merits brief seeking to correct a constitutional wrong.

While professionally gratifying, the trial and/or appellate attorney can expect to be compensated at the rate of about $20 - $25 per hour.

Hard to believe that right here in Oakland County, Michigan, there is sufficient crime to sustain a nearly $2 million dollar a year crime lab.  Yet that is what Oakland County Sheriff Mike Bouchard will be announcing this morning in conjunction with his department's request for an expanded crime lab.

Sheriff Bouchard is expected to tout the Oakland County crime lab's accreditation by the American Society of Crime Lab Directors; the first lab in Michigan to achieve such status.  Allocation of the resources for the proposed expansion (up to 3 additional employees and the constantly advancing hi-tech equipment with which they will work) seems like politically rough terrain in these times.

Apparently, the expansion will allow Oakland County to by-pass the lab operated by the Michigan State Police, thereby significantly reducing delays.  The MSP crime lab has been flooded with additional work since the City of Detroit shuttered its crime lab amid claims of mismanagement and abuse; claims that are being investigated by the MSP.

This blogger recently experienced the effects of the MSP lab's processing delays in a felony case in Oakland County.  It took the Oakland County Prosecutor nearly 8-months to confirm blood reports tying my client to a crime scene.

The prosecutor ended up sending the blood-work to a private lab in Virginia.  During the months it took to process the evidence, my client was sent to prison on another unrelated matter from Detroit.  

Although the delay was not the accused's fault, he sat in prison on dead time in my case, willing to plead guilty and get his Oakland County case over with.  This was not possible due to the evidentiary delays.  Not that I am asking you to shed any tears for this hardened skell; but we pay for such delays one way or another.

If an expanded lab lessens delays, expedites justice, and eases the burden on the state lab, that's all good.  It's just a shame that our community sports enough crime to make such an arena possible.

www.clarkstonlegal.com

info@clarkstonlegal.com

It's still too early to tell if Michigan's new "Super Drunk" driving law is having an effect on making our roadways safer.  The law took effect last November.

Some following the law have noted that due to plea deals, many convicted of this law are going to rehab rather than jail.  One of the provisions of the law was to double the jail term from 90 to 180 days for convicted super drunk drivers.

According to Eaton County district judge Harvey Hoffman, an early proponent of the new law, more folks are jumping into sobriety courts, or extended rehabilitation programs.   Judge Hoffman cites chronic jail overcrowding as a chief factor in sentencing super drunks to rehabilitation over a six-month jail bit.

Of course, here in Oakland County, there is no such thing as a plea bargain and the prosecutor no longer participates in district sobriety courts.  If you are charged under the Super Drunk law, you will not get an offer to reduce the charge to impaired driving, even if it is your first offense.  Your fate will be in the hands of your sentencing judge.

By comparison, the Eaton County prosecutor has a new policy in super drunk cases of approving a plea reduction to impaired in exchange for the accused's assent to enter into a sobriety court program, forcing the offender to come to terms with their drinking problem. 

The 0.17 blood alcohol level which triggers the new law is not an outrageously high BAC.  On average, the BAC of an arrested driver is 0.16; very close to the super drunk threshold.

So the best thing to do is simply stay off the roads when you've had too much to drink; that way, we're all safer.  If you cannot do that, go on ebay and purchase a "Big Blue Book" as a compulsory 12-step program may be in your future.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

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.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

The signs have been piling-up for more than a year now. Mortgage foreclosures have careened out-of-control.

The chief question in courts of law is: who owns the subject property, and can they prove it by producing a mortgage note? Increasingly, the respective answers are: “Don’t know” and “No.”

In 2010, the Arkansas Supreme Court ruled that MERS (Mortgage Electronic Registration Systems) Corporation was prohibited from filing foreclosures in that state.

A federal bankruptcy judge in Long Island ruled just last week that MERS could not act as the “agent” of the mortgage note owner. Judge Robert Grossman acknowledged in a case called In re: Agard, that MERS may be involved with up to 50% of all home foreclosures nationwide, and that his decision may negatively affect the mortgage industry (i.e. accelerate its demise), but his decision required that the process comply with federal and state bankruptcy laws.

Many MERS-held "notes" will either not materialize, or will not pass muster relative to the many networks of applicable legal standards.

The Iowa Attorney General recently announced progress, along with other state attorneys general, in conjunction with the newly established Consumer Financial Protection Bureau, to overhaul the process of how the nation’s largest banks conduct the foreclosure process.  The group essentially is a nation-wide focus group of state law enforcement officers and bureaucrats tasked to generate a list of best-practices they can mold into national standards.

In Florida, attorney and foreclosure-giant, David Stern, under investigation by the Florida Attorney General, just announced that his law firm is suspending foreclosure operations.

In Utah last month, a local judge made national headlines by allowing a judgment debtor to rip-up his mortgage note in open court and literally walk away from his home, debt-free, because the lender could not prove ownership by producing a mortgage note.

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.

As the foreclosure meltdown has unfolded over the past 24-months, many mortgage lenders’ practices of cutting corners in the lending process, and making some rather huge mistakes, have come to light. This has had the effect of making it difficult, and in some cases impossible, to actually prove who owns a particular home.

The early challenges from county officials in the 1990s to the MERS system of high-speed and cheap securitization went unnoticed in favor of the mortgage lending industry. 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.

All good things usually come to an end; sometimes a bitter end. Now, the judges in all the various courts are tipped off; and bankruptcy judge Grossman's decision may go federally viral.

Where will this all lead? Will the state attorneys general, through a new layer of bureaucracy, be able to arrest the process and introduce effective reform? Or will judges, case-by-case, reluctantly pull the threads that will undo our nation’s mortgage lending system?

Only time will tell, so stay tuned on this one.

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.

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