The Smoketown Collective

This month—March—is the first month that I can say we are "full up" at the buildings located at the corner of South Shelby Street and Breckinridge in Smoketown. Sarah and I purchased 900 S. Shelby in the spring of 2015 and the two buildings next door later that fall. (The true maniac of the two of us, Sarah had not even seen inside when she gave me the go-ahead.)

 

It's taken longer than I thought to find tenants for the buildings' various nooks and crannies. And, it's been way more expensive than I thought to make the improvements to the buildings that we've made.

Some of the best things that I've done in my life are things I never would have done if I'd known what I was getting myself into. Thank goodness for ignorance, I guess, and Stephen Kertis who encouraged me to move to Smoketown in the first place.

I've started thinking of the mix of a dozen or so businesses, nonprofits, and artists using our space as The Smoketown Collective. It's organizations advocating for undocumented people living in our communities, helping kids get a extra boost with summer programming. People bringing the chillest, freshest music to our town and folks gathering to support one another as they move off the street and into permanent housing. It's a place I like to spend time almost every day of the week because while the work we do differs, it feels like we're all pulling in the same direction.

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While I can credibly fly the "No Vacancy" flag outside our buildings, if you are an individual or organization looking to rent office space or needing one-off meeting space, get in touch using the form in this post. Depending on your needs, we may be able to squeeze you in somewhere, somehow. Plus, we may have vacancies in the future. And, hey, even if you're not a tenant, we may still be able to make a one-off event or meeting work in the space. I'm really happy that some nonprofits and community groups have started using our conference rooms to meet and organize even though they're not technically tenants.

 
Robert Kahne and Jazmin Smith of My Old Kentucky Podcast

Robert Kahne and Jazmin Smith of My Old Kentucky Podcast

Also, one of the things I'm pretty excited about is our podcast studio. If this is something you could use, be in touch. We have three good microphones and a soundboard. BYOComputer. Right now, My Old Kentucky Podcast records out of The Smoketown Collective, but I'd like that to expand to other shows.

 

Here's a slideshow of the evolution of the buildings over the last two years. Man, it's been a ton of work.

Let's Start a Nonprofit Law Firm

We settled a case yesterday and I want to tell you about it. Almost two years ago, we sued a car dealer for wrongfully repossessing our client’s car. Yesterday, our client went to pick up that car, which she will own free and clear instead of paying 25% interest on the buy-here-pay-here auto financing. Additionally, over the next two and a half years, my client will receive a few thousand dollars and my firm will recoup a little over $10,000 in attorney’s fees and expenses. 

Let me say thank you to some people who need thanking by making a couple of points about this settlement. Then, I want to tell you about a nonprofit law firm I’m starting in 2017 called Commonwealth Justice. 

First, this repossession had a huge impact on my client’s life. Like many people, when my client lost a reliable form of transportation, it set off a cascade of negative consequences in her life. Because she lost her only car, she could no longer hold down one of the two jobs she was working at the time. Because she lost one of her two jobs, she wasn’t able to make rent and had to leave her apartment. For a year, she lived with her minister and his family. She wasn’t able to transport her daughter to the far-away clinic to treat a chronic medical condition. Wrongful, abusive repossessions create huge problems in individual’s lives and—based on the number of people we have contacting my firm—are a widespread problem in our state. 

This settlement doesn’t come close to compensating my client for the violent upheaval this repossession caused in my client’s life. But, collection of a larger sum from the dealer was going to be challenging and, as in most settlements, we weighed the value of the prospect of recovering more money later versus some money in the near future and decided the risk of pursuing a larger sum of money wasn’t worth the benefit. 

The only way we were able to get this case settled is because Josh Goodnewt did an outstanding job getting summary judgment granted in our client’s favor on her Truth in Lending Act claim and having the Defendant’s counterclaims for fraud and breach of contract thrown out with a separate Motion for Summary Judgment. Josh is a brilliant, thorough, passionate attorney and I miss him every day. 

Are you kidding me? 

Are you kidding me? 

The only way that we are able to afford to settle cases in a way that spreads out the payments to my firm over two and a half years is because I  have a wife with a steady job and health insurance benefits. In other words, without Sarah, I don’t have the luxury of a) reducing the amount of attorney’s fees I recover and b) agreeing to accept that amount over two and a half years. Sarah makes Ben Carter Law possible and anyone who likes the work that we do needs to know that it doesn’t happen without her. 

Now, to Commonwealth Justice: 

We need more people working on behalf of consumers in Kentucky and defending them from debt collection abuse, unscrupulous landlords, reckless mortgage servicers, and car dealers that put profits over people.  

I have had a lot of opportunity as a Legal Aid attorney and as a private attorney to reflect on why more attorneys do not practice in the area of consumer law in Kentucky. I think there are two main reasons. 

First, consumer law is a challenging area of law. Lots of federal statutes. Lots of regulations. Lots of math. It’s not easy to gain the substantive knowledge you need to succeed in this field. Most people can only do it by—like me—starting at Legal Aid. 

Second, even if they learn the law, not many attorneys have the financial ability to defer payment on a case over the course of two and a half years. I can do it because UK gave me a scholarship to law school and I have a beautiful wife with a steady job. 

Nevertheless, my experience with Ben Carter Law over the last four years proves that consumer attorneys can make money in Kentucky. Last year—the fourth full year of Ben Carter Law—we had enough money to pay modest but nontrivial salaries to Josh and me and for the briefest of time employed a paralegal, as well. We may need to be flexible in how we settle some cases and sometimes cash flow is challenging, but—over time—it is possible for attorneys to make it in this area. 

So, the way I see it: the two main barriers to entry into the consumer law field are 1) lack of opportunity to learn the substance of the law and gain litigation experience and 2) the inability, at the outset, to make the financial tenuousness of a consumer practice work.   

Over the next few weeks and months, you will hear more from me about Commonwealth Justice, a nonprofit law firm I am committed to start in 2017. My hope is that this nonprofit law firm will address both barriers to entry for attorneys wanting to get started in consumer law. By raising funds from individual donors and with grants from foundations, I hope to be able to provide attorneys with the opportunity to develop substantive experience in consumer law. Over time, the goal will be to supplement the organization’s budget with the recovery of attorneys fees in many of our cases. Meanwhile, the support from our donors will provide us the runway necessary to get this plane off the ground. 

Over time, I believe that an organization like Commonwealth Justice can be a game changer for low- and middle-income Kentuckians whose financial or familial stability is threatened by a wrongful repossession, an abusive debt collector, or a corner-cutting landlord. By expanding the number of attorneys working in this field, we can expand the number of people we help, the number of cases that go to trial, and the number of cases that establish valuable precedent to guide the conduct of business owners around the Commonwealth. 

So, stay tuned. And, if you’re interested in helping in any way, I’m easy to find.  

It's Long Past Time for a Statewide Landlord-Tenant Law

The Supreme Court of Kentucky just handed down an opinion in a case, Shinkle v. Turner, that likely speaks to tenants across the Commonwealth. The procedural history of this case reads as cynical as it does familiar. A Boone County landlord (Mr. Turner) filed an eviction against his tenant (Mr. Shinkle) eight (8!) days after sending him a notice of lease termination. Landlord-tenant law in the Commonwealth is not uniform, but the relevant law in Boone County required 30 days written notice of termination of a lease before a landlord could file an eviction. Mr. Shinkle fought the eviction, through his attorney, Peter Nienaber with Legal Aid of the Bluegrass, and filed a motion to dismiss. However, instead of dismissing the action, the court merely continued the case for the requisite 30 days. 

The trial court's action doesn't fit with either the letter or the spirit of the law. Tenants have a right to due process, and many if not most do not have the time or money to fight evictions. Moreover, Section 8 and other rent-assistance programs will deny future payments to evicted tenants. Short circuiting the process like the trial court did in this case puts tenants in danger of losing their homes with little time to find a new one. Tenants in government assistance programs may not keep their eligibility for the program, let alone find new housing on short notice (8 days!).

The Supreme Court of Kentucky did the right thing and put this abusive practice in its place. In doing so, the Court highlighted the need for an updated statutory scheme to prevent judges and landlords from trampling tenant rights in the name of expediency:

It's long past time that the Kentucky legislature passed a uniform statutory scheme for landlord tenant law in the Commonwealth. Fortunately, a uniform scheme already exists and has been adopted in several jurisdictions across the Commonwealth: the Uniform Residential Landlord Tenant Act ("URLTA"). The URLTA was created with the rights of both landlords and tenants in mind, and strikes a balance between the parties to ensure expeditious transfer of possession of the leased property while providing tenants a nontrivial amount of time to find alternative housing. Unfortunately, it is an opt-in scheme in Kentucky, so its coverage is spotty, leading landlords and judges and tenants to scramble to understand the parties' rights--even decades later.

We here at Ben Carter Law, PLLC, support the efforts of the Homeless and Housing Coalition of Kentucky and the other members of the Healthy Homes Coalition to have the URLTA passed as state law. On the linked website, there is a petition to sign to join in their efforts. If this matters to you as well--and I believe it should matter to all Kentuckians--please take the time to sign their petition.

John Oliver: Consumer Advocate for the Masses

Sunday night, John Oliver dedicated part of his show to Credit Reporting Agencies (CRAs), and the damage that they do to consumers with faulty reporting. Though he may hardly be alone in talking about this matter, he made the issue engaging and entertaining. Just as importantly, though his show is on premium cable, the entire segment is free to watch on YouTube.

That is his modus operandi. HBO gave John Oliver a pedestal, and he uses it, weekly, to break down esoteric and arcane areas of law and economics to show precisely how we're being screwed as consumers and citizens. Then, he gifts the segment to the masses and lets it spread. Just look at his previous segments on payday lending, student debt and for-profit colleges, and net neutrality. These are not easy subjects to explain or to understand, and Oliver has a way of not only explaining them, but making his explanation viral and effective as a call to action. In particular, his segment on net neutrality was credited with generating tens of thousands of public comments to the FCC and turning the tide in favor of consumers. I've long wished he would do a segment on forced arbitration

Every year, the National Association for Consumer Advocates gives an award for excellence in consumer journalism to a journalist or journalists who go "above and beyond the normal call of duty by serving as a voice for their organizations and for consumers in the ongoing struggle to curb unfair and/or abusive practices." These days, John Oliver may be the greatest mass media consumer advocate we have. 

Officewarming Open House for 900 and 902 S. Shelby Street

In July of 2015, we moved Ben Carter Law from downtown Louisville to the neighborhood of Smoketown. When I worked with the Network Center for Community Change, we did a lot of work in Smoketown and we are thrilled to be in the community each day now. 

Now, after almost a year, the plywood is off the windows, the floors are sort of clean, and our offices are almost full of great people, businesses, and nonprofits. Come celebrate with us, check out our space, and make some new friends. Think of this as a great excuse to head out of the office a little early on May 13. The party starts at 4:00.

Please RSVP to the Facebook invite (or, if you're not on Facebook, contact me) just so that we can try our best to get the food and drink right. We'll post updates to food and drink once we get caterers/food trucks dialed in. The Facebook event is public, so feel free to invite your friends. 

We have worked hard to find great people to share the offices at 900 and 902 South Shelby Street. We have a great mix of businesses, nonprofits, artists, and one political candidate. We don’t do the same kind of work, but I like to think we’re all pulling in the same direction. Here are the businesses, organizations, and people using the space at 900 and 902 South Shelby Street. Come meet them on May 13! 

Ben Carter Law, PLLC: http://bencarterlaw.com/
Define American: http://defineamerican.com/
Jessica Ebelhar Photography: http://www.jessicaebelhar.com/
Vectortone: http://vectortone.com/
Bryan Burns for Metro Council: http://bbfordistrict4.com/
Hope By Hope: http://hopebyhope.us/
St. John Center for Homeless Men: http://www.stjohncenter.org/
Summerbridge Louisville

Working to Redesign MSD's Logan CSO Interceptor Project in Smoketown

Smoketown’s efforts to advocate for a change in the basin design of the Logan CSO Interceptor Project took major steps forward last week. For the Smoketown community, this is a crucial issue of environmental, racial, and economic justice. At stake is whether the community will be blighted by a structure covering a city block built by MSD or whether MSD will bury its facility and provide much-needed greenspace to the Smoketown community above its facility.  

To recap: the Logan CSO Interceptor is one of a dozen basins Metropolitan Sewer District is constructing around Louisville to capture Combined Sewer Overflows (CSOs) during heavy rain events. These basins are part of MSD’s effort to comply with a consent decree it entered into with the EPA to reduce pollution of the Ohio River. At every other site where it is environmentally feasible to bury the basin below ground, MSD is doing just that. However, MSD designed the Smoketown basin first and—by its own admission—failed to do the outreach necessary to get community input and engagement in Smoketown and designed the Smoketown facility as a block-long, windowless brick structure. This, instead of the greenspace being provided to other neighborhoods above the CSO facilities. For more information on the history of the project and the design, you can read the Smoketown community’s letter to MSD it delivered last week, copied in full below. 

Now to recent events: MSD scheduled a meeting last Wednesday to design the facade of the block-long building. At that meeting, Rev. Bruce Williams of Bates Memorial Baptist Church spoke for ten minutes about the history of the project and why he would refuse to participate in the design of the facade. It was a remarkable statement on behalf of the neighborhood and, following his remarks, over a hundred people walked out of the meeting. As Rev. Williams’s said, this building is an insult to Smoketown and “you cannot decorate an insult”. Here is the video of Rev. Williams’s speech: 

Led by Rev. Williams, residents, business owners, advocates, and allies met the following day. From that meeting, we have written a letter to MSD inviting its Executive Director and Board to another community meeting to “outline a process going forward in which MSD and the Smoketown neighborhood can work together to ensure that the Logan CSO Interceptor Project is a) completed in a timely manner and b) constructed in a way that treats the Smoketown neighborhood with the same respect and dignity provided to the other neighborhoods in which you are constructing CSO projects”.

It is our hope that from Wednesday’s meeting, MSD leadership will commit to redesign the Logan CSO Interceptor Project now, before it is too late. 

So, what can you do to help Smoketown get the same treatment as other communities?

  1. Come to the community meeting on Wednesday, March 24 at 6 p.m. at Bates Memorial Baptist Church (620 E. Lampton Street)
  2. Sign the petition at smoketownvoice.com This is a website we have set up to advocate for equal treatment of Smoketown by MSD. 
  3. Like the Smoketown Voice Facebook Page: https://www.facebook.com/smoketownvoice/
  4. Help share the petition and the Facebook page on your social media networks!

Here is the full letter to MSD: 

March 18, 2016

Re: Upcoming community meeting for Logan CSO Interceptor Project; March 23 at 6 p.m. 

Dear Executive Director Parrott and the MSD Board, 

We are writing today on behalf of ourselves, our congregations, our members, our businesses, and our neighbors in the Smoketown neighborhood. We would like to invite you to a community meeting at Bates Memorial Baptist Church on March 23 at 6 p.m. At this meeting we hope to discuss with you our vision for the Logan CSO Interceptor Project and outline a process going forward in which MSD and the Smoketown neighborhood can work together to ensure that the Logan CSO Interceptor Project is a) completed in a timely manner and b) constructed in a way that treats the Smoketown neighborhood with the same respect and dignity provided to the other neighborhoods in which you are constructing CSO projects. 

It is our hope that after this meeting you will commit to: 

  1. seek approval of a resolution at your March 28th Board Meeting to amend the design of the Logan CSO Project to construct an at‑grade facility, and 
  2. meet with our community again on March 31 to create a process with timelines to provide the community an opportunity to comment on and participate in the approval of preliminary designs of an at-grade basin and engage in the design of the land above the facility for the mutual benefit of MSD and the Smoketown neighborhood. 

While for MSD the Logan CSO Interceptor Project may only be one step in complying with the Consent Decree it entered into with the Environmental Protection Agency, for us, this is an issue of environmental justice, of racial justice, and economic justice. You plan to build a windowless, block-long building in our community while planning to buildunderground structures in other communities around Louisville in which it is environmentally feasible and to provide those communities with much-needed green space above the structure. 

The disparity in your plans for Smoketown and other Louisville neighborhoods is unjust and unacceptable. It is not too late to make it right and we want to work with you in that effort. 

How we got here

At a community meeting on November 16 at Coke Memorial Baptist Church, Smoketown residents, businesspeople, and allies gathered to hear from MSD’s Executive Director Tony Parrott. Mr. Parrott, responding to the dissatisfaction from Smoketown residents, admitted that the Logan project "did not have a good rollout" and lacked "community engagement". The Logan CSO Interceptor was the the first of the twelve CSO structures to be designed and built, Mr. Parrott explained, and he apologized for not developing good partnerships with Louisville Metro and for failing to get community input at the outset on the design of the building. 

During the course of the meeting, we learned that after receiving input from other neighborhoods on their CSO Interceptor projects, MSD decided to bury each of the other 11 structures at grade. It was clear from the comments made by neighbors at the Smoketown meeting that an at-grade structure was their preferred design, as well. MSD had studied the possibility of doing this for the Logan CSO Interceptor project and determined that burying the facility at grade would have cost an additional $4,000,000. 

As a concession to the neighborhood, MSD offered the Smoketown community the opportunity to weigh in on the design of the facade of the building. MSD explained that it would agree to allow the community to spend $700,000 that was previously budgeted for bricks on some alternative facade of which the community approves. 

On January 28, 2016, community members met with De Leon & Primmer, the architects hired by MSD to revise MSD’s plans for the Logan CSO Project. The overwhelming consensus at that meeting (like at the November 2015 meeting) was that the community was not interested in having an above-grade building on the site. Instead, we submitted to MSD several visions for the green space above an at-grade facility. 

The community members hoped that MSD would review the plans generated at the January 28th meeting, recognize the injustice it was perpetrating in the Smoketown community, and amend its plans accordingly. 

That is not what happened. 

Instead, the next meeting MSD scheduled was the “Logan Street CSO Basin Facade Design Meeting” for this past Wednesday, March 16. At the meeting, the proposed agenda was to hear from Executive Director Parrott, review the design proposals for the facade as conceived by DeLeon and Primmer, and then break up into small groups to further discuss the architect’s proposals for the facade. In other words, the entire meeting was structured to preemptively reject this communities’ repeated demand for an at-grade facility, circumscribe the discussion to preclude the expression of any preference for an at-grade facility, and treat the construction of an above-grade facade as an inexorable truth.

We rejected those terms.

As Pastor Williams said, “It’s your mistake, but we have to live with it, and I can’t accept that.” Despite hearing clearly from this community that your plans are unacceptable, you are continuing to construct an unfair building that will blight our neighborhood and stand as an insult to the Smoketown people. The neighborhood of Smoketown agreed with Pastor Williams who said, “You cannot decorate an insult” and hundreds of neighbors, businesspeople, and allies walked out of that “facade design” meeting. A link to Pastor Williams’s full comments are available at http://smoketownvoice.com This is a website we have created specifically to advocate for an at-grade basin at the Logan CSO Interceptor site. 

Wednesday’s meeting was not productive. We will not participate in decorating an insult. We hope you will meet with us this Wednesday to discuss how we can go forward together in a way that simultaneously honors both MSD’s commitments under the Consent Decree and the dignity and integrity of the Smoketown neighborhood.     

It’s not too late

During his comments at the March 16th meeting, Executive Director Parrott explained that the project was 35% complete and that “all of the blasting will be completed by the end of the month.” 

It is not too late to alter the design of the Logan CSO Interceptor Project to bring it in line with the other CSO basins you are building in other communities around Louisville. However, we understand that time is of the essence. That’s why we hope to meet with you on Wednesday. 

Will changing the design of the Logan CSO cost more money? Yes it will. From our perspective, this is a problem for MSD to solve, not the Smoketown community. Will changing the design require more workers and potentially increase the duration of the project? Almost certainly. This, again, is on MSD. MSD has already admitted that it did not do the proper community outreach and engagement in the Smoketown neighborhood when it designed this basin. MSD has admitted its process was flawed. That flawed process led to MSD to decide—without community input—to save $4,000,000 on the Logan CSO Interceptor. After it got input from other communities, it learned that its decision at the Logan site was wrong and invested in more expensive projects in the 11 other neighborhoods. Yet, MSD has not returned to Smoketown to fix its $4,000,000 mistake. 

Please join us

We want to work with MSD to make the Logan CSO Interceptor Project work for both MSD and the Smoketown neighborhood. Please join us at on March 23 at 6 p.m. at Bates Memorial Baptist Church. From there, we hope you will commit to seek board approval on a resolution to build an at-grade basin in Smoketown on March 28th. Then, on March 31st, we can meet again to chart our way forward so that the community can quickly approve preliminary and final plans for the revised project. We know you have work to do under the Consent Decree. We are committed to working with you to fix this project quickly. 

I hope it is clear from the community’s actions on Wednesday that we will not accept an above‑grade facility in Smoketown. Not when an at-grade facility is possible and while MSD is constructing at-grade facilities in other neighborhoods across Louisville. Because time is of the essence, we will need to see positive steps from MSD in the coming weeks that communicate clearly to this community that it has heard our voices and is going to change the design of the Logan CSO Interceptor Project. These positive steps include, at minimum,

  • attending our community meeting on March 23, 2016 at 6 p.m. at Bates Memorial Baptist Church (620 E. Lampton St.)
  • ratifying a resolution at your MSD board meeting on March 28th, 2016 to build an at-grade basin at the Logan CSO Interceptor site
  • attending our community meeting on March 31, 2016 at 6 p.m. at Bates Memorial Baptist Church (620 E. Lampton St.) to put a plan into place for ratification of design changes by the Smoketown community 

If we do not see these positive steps from MSD, we are preparing to insist on the design changes through direct action, political engagement, litigation, community education, protest, and activism. 

This is not our preferred path. We would prefer to work in concert with MSD and create a win‑win outcome for our neighborhood and MSD. Please call Bates Memorial Baptist Church(502-636-0523) and let us know if we can expect you at our community meeting next Wednesday. We look forward to welcoming you then and working with you during this redesign process. 

Sincerely, 

The Smoketown Neighborhood Association

Dr. F. Bruce Williams, Bates Memorial Baptist Church

Ben Carter, Ben Carter Law, PLLC 

Stephen Kertis, Kertis Creative

Ending the Eviction Economy

"If rents rise alongside incomes, what progress is made?"

One of the most rewarding (not financially) areas of work we do at Ben Carter Law, PLLC is helping tenants a) avoid eviction or b) get evicted with a little more grace, dignity, and certainty. 

This is a great article on the struggles of low-income tenants and the benefits and do-ability of expanding housing assistance to all Americans at the bottom 30% of income. 

It's Time for MSD to Reinvest the $4,000,000 It Skimmed from Smoketown

As far as I can tell, Louisville's Metropolitan Sewer District owes Smoketown at least four million dollars. Let me tell you why. 

On November 16, I went to a community meeting about a building Louisville's Metropolitan Sewer District is building in Smoketown. It's called the "Logan CSO Interceptor Project". CSO stands for "combined sewer overflows. The "CSO Interceptor Project" is a fancy way of saying "catching the wastewater and stormwater before it flows into the Ohio River". 

The site of the Logan CSO Interceptor under construction. This might be a park but current designs call for a two-story brick building. 

The site of the Logan CSO Interceptor under construction. This might be a park but current designs call for a two-story brick building. 

The Logan CSO Interceptor is one of twelve CSO interceptors being built around the city. It's part of MSD's effort to comply with the Federal Consent Decree it entered into with the Environmental Protection Agency after the EPA found Louisville to be grossly and repeatedly out of compliance with the Clean Water Act. Each of the other 11 buildings are being built "to grade". This means that the structure will actually be buried below ground and a park will exist on top of the building. However, the Logan CSO Interceptor will be  a block-long, windowless, two-story building in a part of town that desperately needs green space. 

Aside from feeling the blasting each day from the project in my law offices (one block west of the Interceptor), this November 16 meeting was my first exposure to the project. At the meeting, it was clear that neighborhood sentiment was strongly against the project. 

The meeting opened with remarks from MSD's new Executive Director, Tony Parrott. Mr. Parrott, responding to the dissatisfaction from Smoketown residents, admitted that the Logan project "did not have a good rollout" and lacked "community engagement". The Logan CSO Interceptor was the the first of the twelve CSO structures to be designed and built, Mr. Parrot explained, and he apologized for not developing good partnerships with Louisville Metro and for failing to get community input at the outset on the design of the building. 

During the course of the meeting, we learned that after receiving input from other neighborhoods on their CSO Interceptor projects, MSD decided to bury each of the other 11 structures at grade. It was clear from the comments made by neighbors at the meeting that this was their preferred design, as well. (Imagine preferring a block-sized park to a two-story windowless brick building.) MSD had studied the possibility of doing this for the Logan CSO Interceptor project and determined that burying the facility at grade would have cost an additional $4,000,000. 

As a concession to the neighborhood, MSD is now offering the Smoketown community the opportunity to weigh in on the design of the two-story facade of the building. MSD has agreed to allow the community to spend $700,000 that was previously budgeted for bricks on some alternative facade of which the community approves. 

This is a completely outrageous and unacceptable "concession" from MSD. It provides no new money to a project that by MSD's own admission was created without community engagement and asks the community to sign off on shortchanging the Smoketown community of at least $4,000,000. 

MSD, without community input, decided to cut corners and save money on the Logan CSO Interceptor project. After hearing from other communities, it changed its Interceptor designs on every one of the other projects. These changes—no doubt—increased the cost of each of the other projects. Now, MSD is asking Smoketown to put $700,000 of lipstick on its pig instead of either: 

1) revising the Logan CSO Interceptor project to offer the neighborhood the green space the other 11 projects are offering other neighborhoods, or 

2) offering at least $4,000,000 (the money it skimped on for the Logan CSO Interceptor) to the Smoketown community to use to change the design of Logan CSO Interceptor or devote to other community purposes (like securing other greenspace that the community will no longer have because of MSD's design and community outreach failures). 

Given MSD's admitted shortcomings in its design and community engagement processes, MSD's decision to save $4,000,000 on its facility located in Smoketown can only be seen as shortchanging a neighborhood that is already all-too-familiar with shortchanging. That MSD expects Smoketown residents to be satisfied with a resolution that offers no new money but exchanges brick for some other veneer, is an insult to Smoketown. 

Tonight is the first meeting for residents to sit down with the designers MSD has engaged to redesign the facade of MSD's building. There are already some useful ideas about how the facility can be improved. As the redesign process kicks off, I hope participants from Smoketown will use the "redesign process" to insist that MSD invest the $4,000,000 it siphoned away from the Smoketown community back into the community. Whether the residents want to invest the $4,000,000 into the redesign of MSD's building or insist on that money returning to the neighborhood in the form of a grant to the Smoketown Neighborhood Association is, as far as I'm concerned, up to the residents of Smoketown. 

MSD has admitted its process was flawed. That flawed process led to MSD to decide —without community input—to save $4,000,000 on the Logan CSO Interceptor. After it got input from other communities, it learned that its decision at the Logan site was wrong and invested in more expensive projects in the 11 other neighborhoods. Yet, MSD has not returned to Smoketown to fix its $4,000,000 mistake. 

I urge Smoketown residents participating in the redesign project to insist that MSD reinvest into Smoketown the $4,000,000 it mistakenly decided not to spend on our neighborhood.

Week in Review: Banditry, Funerals, and a New Solo

Expect the Best, Plan for the Worst

Well, in two separate incidents on Wednesday and Wednesday night, Ben Carter Law had a laptop (mine) and TV (ours) stolen from our storefront. Huge bummer. But: we were able to erase the data on the computer remotely and restore from a recent backup when I got another computer on Thursday. I'm telling you this so that you can plan ahead so that a lost or stolen computer doesn't derail your practice. If you are in the Apple ecosystem, make sure your devices are signed up for the "Find My iPhone" service. This allowed me to lock and erase the stolen computer within minutes of its theft. It also allowed me to trace its location to one of two houses not far from our office. Second—and I can't stress this enough: keep recent backups in separate physical locations. I also use BackBlaze to backup to the cloud. An off-site backup and cloud backup: this is the "belt-and-suspenders" approach to backup that your data deserves. 

With a recent backup and cloud storage of our files, I lost no data and almost no momentum in what could otherwise have been a crushing loss. 

Needless to say, we're getting some extra security for the office. 

We actually have good information on who stole the computer. When things go missing around this time of year, I always point the finger first at these two. 

So, while I'm hopeful that we might recover the computer at some point, the TV is like dropping your keys into a river of molten lava. Man, it's gone. 

The courage to fix the things we can

The husband of one of my favorite clients of all time passed away this week. She texted to tell me the funeral arrangements, so I went. At the funeral, both she and her son expressed profound gratitude for our help in negotiating the the mortgage company an alternative to foreclosure. They explained that our help allowed their dad and husband to spend his final months in the comfort of his home and with the knowledge that the home was secure from the threat of foreclosure. 

At my firm, we are confronted daily with a lot of injustices and requests for help from a lot of people. This funeral was a much-needed flotation device in a swirling flood and was a reminder to me that it is not our job to fix every problem. It is only our job to fix the problems we can. Everything else is up to that higher power.

Peter Brackney goes solo

I was happy to learn this week that Peter Brackney has set up his own practice in Lexington. Peter is a great guy to follow on Twitter and will be working in the areas of consumer bankruptcy, business law, and estate planning. 

Do as Greg Belzley does

My friend and an attorney I admire a lot, Greg Belzley, was quoted in the Herald-Leader this week in a story about the state's failure to supervise the medical providers with which it contracts to provide care to Kentucky's prisoners. The situation is appalling and Greg is one of the leading advocates—inside and outside the courtroom—to change the callous, uncaring, inhumane treatment these human beings receive. 

Greg is a shining example of the good work a person of conscience can do when armed with a law license. We should all take a note. 

Week in Review: Office Space, Kids' Book, Systemic Sin, and Wilco

Progress at 902 South Shelby Street

Over the past couple of weeks, the shared office space we are preparing at 902 S. Shelby has come a long way. It's amazing what some paint and carpet did to the space. If you know a young attorney or nonprofit or startup looking for a place to meet clients or customers with a dedicated workspace, please send them this link or have the call (502) 509-3231. We'll have space for 6-7 folks. We're hoping to have it ready by January 1. 

Sermon Podcasts

"But I would like to suggest to you that, while John the Baptist is concerned with personal sin and repentance, he’s also dealing with something much larger: the infrastructure that makes sin native to the system and not just the product of personal choices." – Derek Penwel in last week's sermon at Douglass Boulevard Christian Church.

That notion—that our society can be constructed in a way that "makes sin native to the system"—is as useful as it is dreadful. The best work that the best lawyers do is in cases that challenge and change those systems in which our sin is collected, distilled, and deployed in ways that injure those that can least afford to be injured.

The audio is available for a listen here or in iTunes.

A Great Book for Great Kids

We have had a few friends tell us they're expecting. Insert Howard Dean Scream—YAHHHHH!—here. Spoiler alert: they're all getting A is for Activist from us. 

G is for Grassroots. Sprouting from below. Sharing nutrients, and the water's flow. Below the surface we're all connected. Stronger together—we Grow.

Wilco's Song Exploder

I listened to Jeff Tweedy explain his creative process in this recent episode of "Song Exploder". Like last week's talk about creativity from John Cleese (see last post), Tweedy emphasized being open to discovery. I thought it was really interesting that a big part of his creative process is knowing he has something to say, but understanding that he would uncover it unless he could trick his ego into getting out of the way. Very clever. I continue to be intrigued by what lawyers can learn from other artists about becoming more creative and applying that to their advocacy.

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Underwhelmed by Santa since 2015. 

Underwhelmed by Santa since 2015. 

Week in Review: John Cleese on Creativity, Debt Collection, File Cabinet Keys, and Some Songs

I'm going to begin posting weekly digests of things I learn and discover. Some weeks, it will be heavy on the law, other weeks, it will be podcasts, TV shows, videos, or sermons that resonated with me. 

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Cleese on Creativity

The best thing I saw this week was this video of John Cleese talking in the 80s about what he and scientists have learned about giving yourself the best chance at having creative thoughts. I think lawyers don't work hard enough or give themselves the permission they need to have the time and space necessary for creative work to happen. I learned a lot from this talk. 

Leaving Evernote

For me, Evernote held a lot of promise for being that one spot that everything—legal research, news articles, recipes, etc.—lived. But, I was never able to figure out how to incorporate that promise into my everyday workflows.

If you, like me, are considering getting away from Evernote, you can import all of your notes into Apple's Notes app using this script from Larry Salibra. Pretty nifty. You lose your tags, but they are still searchable as text placed at the end of each note. Like I said, pretty nifty. 

Here's picture of my kid being cute in his duck towel. 

Here's picture of my kid being cute in his duck towel. 

File Cabinet Keys

I recently got a few locking file cabinets that didn't have the keys to the locks. I disassembled the lock cores from the cabinet and was preparing to order new lock cores when I noticed a few letters and numbers etched into the front of the lock cores. I googled those letters and numbers. Turns out, you can just use that letter/number combo to buy replacement keys for filing cabinets and cubicles. I ordered mine from easykeys.com and they arrived quickly via FedEx. 

Fair Debt Collection Practices Act (FDCPA) Developments in Kentucky

I learned about a couple of good decisions from a Kentucky federal court and the Kentucky Court of Appeals on debt collection abuse and the Fair Debt Collection Practices Act (FDCPA).  In Harrell v. Unifund CCR Partners, the Court of Appeals followed the Sixth Circuit Court of Appeals's reasoning in Stratton v. Portfolio Recovery Associates, LLC 77- F.3d 443 (6th Cir. 2014) to hold that if a creditor charges off an account and waives its right to collect interest under the contract with its customer, a third party debt collector cannot seek prejudgment interest without also violating the Fair Debt Collections Practices Act. Important stuff. 

The other case I learned about was Grace v. LVNV Funding, Inc. Essentially, Judge Heyburn ruled that a medical provider's 1.5% per month "service charge" on accounts more than 90 days delinquent was, in fact, not a "service charge" but was instead interest in excess of the 8% rate allowed by law. Because the interest rate was usurious, LVNV Funding violated the Fair Debt Collections Practices Act when it demanded payment on an amount of money that was more than what was allowed by law. Rick Vance at Stites and Harbison wrote a good summary of the impact of Grace on Kentucky's businesses and their collection practices. 

Good Songs 

Loan Modification, Loss Mitigation, and Doing Everything You Can To Save Your Home

If you're behind on your mortgage or facing default on your mortgage payments, and want to keep your home, you should speak to a home preservation specialist or an attorney immediately. The loan modification process (part of a suite of potential alternatives to foreclosure your mortgage servicer refers to as "loss mitigation") is fraught with chances to misstep, which despite your best efforts may cost you your home. Many of those missteps may not be your fault, and without the assistance of counsel or a HUD-certified housing counselor you may not recognize them or be able to prove that your servicer is to blame. 

Since January 2014, many servicers have had to follow regulations that demand they meet strict deadlines and disclose a great deal of information about your loss mitigation application, your eligibility and ineligibility for various alternatives to foreclosure, and your right to appeal their determination of eligibility or ineligibility. If they follow these guidelines, their customers are likely to reach an outcome that is beneficial to them. However, if they do not follow these regulations, servicers may be liable for damages, which, in some cases, could pay a portion or all of a homeowner's past-due payments. 

Unfortunately, even with counsel, fault can be difficult to prove, but there are a few things you can do to protect yourself and help your attorney reach a good outcome. 

1. Never trust that your servicer's advice is in your best interest.

We hear it all the time: servicers tell their customers that they need to be in default in order to be considered for a loan modification. Servicers advise homeowners "not to worry" about the foreclosure lawsuits they file against homeowners, explaining that it's "just something our collections department does". They tell homeowners that all they have to do is keep working on a loan modification and not to respond to the lawsuit. 

Despite providing advice and guidance to its customers, if you're in foreclosure, your servicer will flatly deny any advice it gave was meant to be relied upon, since it is a business and is concerned foremost for the interest of its shareholders, not its customers. That does not mean that it cannot be held to account for advice it has given you or promises it has made, but it does mean that you will be in for a fight if you have followed your servicer's advice to your detriment. Don't trust your servicer without verifying the advice you're getting from the servicer by asking a lawyer or housing counselor about the advice. Following this rule will help protect you from some of the worst abuses. 

2. Keep everything your servicer sends you.

Especially when you're in default and applying for some sort of loss mitigation, you should receive a lot of letters from your servicer. All of them are important, and many are governed by the regulations linked above. You should keep all of these letters. Moreover, since you cannot always trust that a letter was sent on the date it claims, you should keep all of the envelopes these letters come in. The envelope will have a postmark date on it, which can be invaluable when trying to prove a required deadline was not met.

3. Keep a copy of everything you send your servicer.

One of the disclosures your servicer must send you is a notice that your application is not complete. It must outline what documents are missing and give you an opportunity to send them. If you do not provide necessary documentation, your servicer can deny you any loss mitigation option. Keeping a copy of what documents you've sent -- and when and how you sent them -- may protect you and assist you on any appeal of a negative determination.

4. Take notes.

When speaking with your servicer on the phone, make a note of when the phone call took place, who you spoke with, and what advice or guidance the servicer provides you. 

CFPB and You: Proposed New Rules for Payday Lenders

Cash Express in Kentucky

The Consumer Financial Protection Bureau has issued proposed new rules for payday lenders, with the goal of preventing what abuses it can in the industry. I say "what abuses it can prevent" because, unfortunately, the CFPB has no power to control interest rates, which in the payday lending industry reach astronomical highs. One interpretation of Kentucky's payday lending statute allows for an annual interest rate exceeding 400%. So, seeing that almost 80% of borrowers must re-borrow after 14 days because they can't afford the fees, the CFPB took aim at preventing the "debt trap" by going to the "source": people who borrow more than they can afford to pay back.

The proposed rules require that lenders evaluate potential borrowers' ability to repay before they loan to them. The idea is that this will prevent people from continuing re-borrow every two weeks or month because they cannot afford to pay the entire amount. The way this works in Kentucky, a person may go to a payday lender, borrow $500.00 and have to pay back $589.25 in two weeks. Most often, when the two weeks is up, the person cannot afford to pay $589.25, so they bring in that amount but immediately re-borrow another $500.00 (with another $89.25 fee due in two weeks). Left unchecked, that can mean over $2,000.00 solely in fees per year, without the borrower even beginning to pay down their principal balance. The CFPB believes that if lenders can only loan to borrowers that can repay by the due date, it can prevent harm to borrowers who can't. 

For the borrowers who would otherwise be unable to get payday loans, the rules also propose two options that do not require looking at the borrower's ability to repay. The first requires that, if the borrower is unable to repay their loan when due, the lender can provide subsequent loans, but must reduce the principal each time. The second allows the lender to offer two more loans at the same interest rate, but then must provide an "off-ramp" to the borrower wherein they can pay back the principal without additional fees. 

In any of these cases, a borrower could only receive three loans before having to "cool off" and wait 60 days for the next loan. During that time, I do not know where they might turn if they need additional money. Hopefully, not to the even worse option of online lenders.

While these measures may all help if adopted,  my hope is that instead of these "last resorts," people will turn to less onerous means of making ends meet. Payday loans seem quick and easy, but they are anything but.

Identifying Scammers: The IRS Doesn't Make Phone Calls

April 15th is fast approaching and that means that telephone scammers are out in force trying to scare you into giving them money, or worse, enough personal information to steal your identity. Generally speaking, whether a phone call is a scam can be hard to determine. Not so when it comes to IRS impersonators!

NPR reported, straight from IRS Commissioner John Koskinen's mouth, that if a caller claims to be from the IRS, they aren't:

"If you are surprised to be hearing from us, you are not hearing from us," Koskinen said. "Our way of contacting you is by letter."

He went on to say that the IRS will never call you to threaten you for not paying your taxes:

"The last thing you'll ever hear from an IRS agent of any kind is threats that we are about to throw you in jail unless you pay us immediately or put money into a particular account," he said.

So remember, even if they know your name, your telephone number, and the last four digits of your Social Security Number, it's not the IRS calling you. The IRS has made it easy for you. Be sure to tell your friends and family members, especially if they are elderly.

For Sale: Perfectly Good Macbook Air

Ben Carter Law is upgrading its technology, which is a fancy way of saying I'm getting a new computer. Ergo, I'm selling my mid-2011 11" MacBook Air. When I bought it, I maxed out the processor (1.8 gHz), RAM, (4 gig) and hard drive (256 gig), so it is still plenty fast for web browsing, word processing, email, and other common tasks. I'm updating because my computer is the primary tool I use to do my job and so having the newest, fastest, best makes business sense.

New, the computer was $1,700. I'm asking $700.

Technical specifications for the mid-2011 11" Macbook at Apple.com

Monoprice.com: Less Jingle for Your Dongles

I know not everyone is a nerd. This is for you non-nerds. Stop paying tons of money for HDMI cables at Best Buy. Stop paying tons of money for stupid cables, connectors, widgets, and dongles, period. 

If you need to plug something into a piece of electronic equipment and plug the other end into another electronic device or a wall, go to monoprice.com

They even sell guitars. If you want to take the money I saved you on cables and buy yourself a guitar, well, for those about to rock, I salute you

Unlicensed online lenders are illegal in Kentucky

Josh Goodnewt attended a webinar hosted by the National Association of Consumer Advocates last week about what to do to help victims of online lending schemes. This post contains some general information about steps you may want to consider taking if you are tangled up with an online lender. As always, please consult with legal counsel about your particular situation before acting.

Hopefully you found this post before you ever borrowed money from an internet lender, and you’re just searching for information about whether you should get a loan from an internet lender. If so, don’t do it. Unlicensed online lending is illegal in the Commonwealth of Kentucky. And it’s a trap.

Well, actually it’s several traps:

First, before you ever borrow, just putting your information into an internet lender's website opens you up to wrongdoers. The website you give your information to is most often not the lender. Instead, it is a lead generator — meaning you give them information, and they sell it as a “lead” to potential lenders who will then offer you a loan. Once that information is in that lead generator’s hands, they may keep selling it or misuse it and you could lack much of a recourse if they do.

Second, once you get the loan you’re charged exorbitant interest rates so that even if you timely make your payment, you may never actually pay down the principal balance.

Third, you are often required to authorize the lender to take money directly from your account via ACH (automated clearinghouse) transactions or EFT (electronic funds transfer) payments. The lender will continue to withdraw these payments until the balance is paid off. Since the interest rate is so high, you won’t likely be able to pay down the loan and the withdraws will continue perpetually.

Fourth, if you find a way to stop making payments, you’re in for a lot of harassment. Any information you gave that lead generator now may be used to harass or threaten you. They will not necessarily limit to calling you on whatever phone number you left them, but may call your employer if you listed it, or anyone you listed as your references. They may report the debt to credit reporting agencies and damage whatever credit you may have, which may affect your ability to gain future employment or an apartment.

So, hopefully you didn’t open yourself up to any of that! Unfortunately you probably have, and if so there are a few steps you can take.

  1. Withdraw your ACH authorization for ALL DEBITS by notifying the lender in writing. You can mail it to their address or attach it to an email.
  2. Notify your bank immediately that you have withdrawn your authorization for ALL DEBITS from that lender. Tell your bank that these and future debits from that lender are “Unauthorized Debits”
  3. Open up a new bank account at a different financial institution and notify any direct depositors of the new account.
  4. Close the account the lender is debiting.
  5. Dispute with the bank ALL of the debits made by the online lender.

If you have borrowed money from an online lender, following these steps may be your best bet to ending the constant withdrawals. Remember, you have done nothing wrong. If your lender lacks a license in Kentucky, you are being scammed by an illegal lender and you are under no obligation to pay the lender back. KRS 286.4-991.

Unfortunately, there is rarely much that can be done to these scammers. However, if you have any questions about any of the above, feel free to contact us at Ben Carter Law, PLLC.

Use LibreOffice to Access .doc and .wpd Files on a Mac

As a Mac-using lawyer, I often have to solve the problem of how to work with legacy file formats. An awful lot of very good attorneys have done very good work using programs like Microsoft Word (.doc) and WordPerfect (.wpd). When these attorneys are kind enough to send me their pleadings and letters and research outlines in these formats, I use LibreOffice to open them on my Mac. 

From there, I can plagiarize the work of other, smarter attorneys into my new Pages document. (A few years ago, I switched from Word for the Mac to Pages due to stability issues.)

LibreOffice is a project of the The Document Foundation (which has created office productivity programs for spreadsheets and presentations, as well). If you download LibreOffice, I highly recommend you donate to support the Foundation (though I have tried twice in the past few weeks (so that I can practice what I preach here) only to have the process of donating fail...doh!).  

Defining "Consumer Law"

When people ask me what I do, I usually tell them, "I make bad jokes on the internet." When they ask me what I do for money, I tell them I'm a consumer lawyer. If they're not too proud to admit to not knowing what consumer law is, they'll ask, "What is consumer law?" 

Here is a little mailer I sent out to fellow lawyers last year explaining what kinds of cases I handle as a "consumer lawyer".

Somehow, though, I think that just describing the kind of work that consumer lawyers do and the kinds of cases they take misses the point a bit. It gets to the what, but not the why of consumer law. 

But, I recently had the opportunity to speak to about a hundred newly-minted attorneys at the KBA's New Lawyer Program about Kentucky consumer law. My Lebowski-themed presentation about consumer law touched on many of the same areas I listed in the mailer: the Kentucky Consumer Protection Act, debt collection abuse, insurance bad faith, auto fraud, the Kentucky Lemon Law, etc. 

Before I ran through those specific state and federal statutes protecting consumers, though, I gave Kentucky's newest lawyers my freshest take on what consumer law is. I told them that being a consumer lawyer means applying all of your skill, training, and heart to the legal problems that impact low- and middle-income Americans. It means using the laws (common, local, state, and federal) to protect the bottom lines of the most fragile budgets in America. 

Rather than defining consumer law as a kind of case or a particular set of statutes, I want to broaden my definition of consumer law to "practicing law with the goal of helping low- and middle-income American families achieve and sustain financial stability". 

This definition allows me a broader self-concept of "what I do", aligns me more explicitly with the work of allies seeking those same ends through lobbying and public education efforts (rather than my more litigious efforts), and provides me a "North Star" when charting the work I want my firm to do. way forward for my firm. helps me evaluate the direction I want to take my firm. Anything that threatens the financial stability of economically vulnerable people—foreclosure, eviction, abusive debt collection, auto fraud, unfair or misleading business practices, repossession, bad faith claims adjusting from insurance companies—that's what I fight.

Practicing with a goal of helping people avoid the threats to their bottom line motivates me to pay attention to the evolving landscape of threats out there. Every year, it seems, there's a new problem, whether it's vacant and abandoned property, unpaid tax bills on real estate, starter interrupt devices on cars. There's a scammer born every minute. 

Practicing consumer law is much, much broader than using the statutes we typically think of when we think of "consumer law" statutes. It means aligning yourself with  economically fragile families and individuals and using the best, bravest version of yourself to defend them from the flinty-eyed predators stalking your clients and senseless corporate machinery that will consume them without ever thinking once.

You Know You're Not Great. Keep Going.

I think this insight from Ira Glass on why people give up on storytelling is so relevant to the experience of many beginning attorneys and attorneys who are struggling to start their own practices. We see others doing it. We recognize excellence. We know who the "masters" are and know that we are not masterful. 

The impulse when faced with your own clumsiness and inexperience is toward self-deprecation and despair. In this two-minute pep talk, Ira Glass tells us to keep going. The only way to become a master is to keep working. One reason I love being a solo attorney is that I have no choice but to keep working, keep moving forward, even (especially) when my skills fall short of my taste.