As you may have already guessed, I have to postpone the Commonwealth Justice conference I had hoped to host in August. 

Apparently, someone radically underestimated how hard starting a law firm would be and how much time he would be able to devote to organizing and hosting a conference for social justice-minded attorneys and organizers in Kentucky. 

I don't know when the conference will occur—probably sometime in 2014—but I am committed to making it happen. Thank you for your early support of the idea and stay tuned for updates.

Last night I had the opportunity to provide color commentary to a talk Michael Poindexter, researcher at NC3 and all-around dude, did for a group of MBA students at Sullivan University. Michael spoke about the Network's use of data to make the case for change here in Louisville and around Kentucky. 

As promised, here is the link to the presentation slides.  

Preparing for and giving this talk gave me a chance to reflect on the role data has played in my advocacy—inside and outside the courtroom—first at Legal Aid Society and now at BCL. As I told the students last night, nothing in my liberal arts or legal education instilled in me an appreciation of the importance of data. Nor did my time in school prepare me for the challenges of determining what data I should collect, how I should get my hands on that data, or how to evaluate the data once I captured it. In the 21st century, that I was able to spend seven years in higher education and not have one data analysis class is harrowing. "Data" should be a required class at all law schools. 

Hearing Michael talk also renewed my understanding of just how unique NC3 is as an organization. Here is a group of people who gather data—both quantitative and qualitative—from people and neighborhoods who have not had the political power to control what data is collected about themselves and their communities. NC3 then helps those same people find avenues to use that data to advocate for social and political change. I don't know of another organization like it. 

If you want to support the Network's work, you can buy a ticket to go see Bonny Prince Billy LIVE IN CONCERT on Saturday, August 4. Mr. Billy is a member of the Network and is playing a show at the Kentucky Center to benefit NC3. Or, you can straight-up donate.

Yesterday, David Bryant, Jasper Ward (both of Jones Ward), and I filed a class action complaint in the Western District of Kentucky alleging that General Motor's Chevrolet Cruze has a defect that spreads sickly-sweet antifreeze vapors into the passenger compartment of the car. I encourage you to read more about the case or view the class action complaint. 

If you own a 2011 model year or newer Chevrolet Cruze and want to find an attorney in your state to review your case, go to consumeradvocates.org and click on the "Find an Attorney" tab. 

I love Jon Stewart (@thedailyshow) for his ability and willingness to explain and lampoon MERS.  

As a foreclosure defense attorney, I have to spend a lot of time explaining to clients, opposing counsel, and courts things like the Uniform Commercial Code, residential mortgage-backed securities, pooling and servicing agreements, and, yes, MERS. I really admire Jon Stewart's ability to cut to the heart of a really (and purposefully) complicated and opaque system for privatizing the responsibility for recording the ownership of mortgages across America and the damage that privatization has done to countless homeowners. 

I used to think that lists of "top" attorneys were worthless popularity contests.

Then, I was listed in one.

Now, I'm happy to report that you can rely on Louisville Magazine as the exclusive arbiter of legal acumen in the River City. 

A few years ago, my best friend, Billy Parker, shared this halftime speech with me. It has become an important message for me to hear from time to time. It is especially important to me as an attorney that represents consumers and homeowners who are counting on me to fight some of America's most powerful, well-connected, well-funded industries. Life is fighting for inches and I hope my clients know that I understand that. 

I was in Fayette County this to appear for my client, a homeowner facing foreclosure. I counted the number of motions that were foreclosure-related and how many were other civil actions. Of the 32 motions made, only seven were not related to foreclosures. Twenty-seven (84%) were foreclosures.

With foreclosures dominating motion hours and dockets across the state and straining Court resources, it is time to increase filing fees on foreclosures? Increasing foreclosure filing fees would be a great and long-overdue way for Kentucky courts to fund foreclosure mediation and dispute resolution efforts.  The current system was not designed to deal with the volume of foreclosures currently filed each year and each case is fact-specific and requires the Court's attention to ensure banks do not inflict needless foreclosures on our communities. 

Kentucky needs additional systems to deal with foreclosures and increasing the filing fees on foreclosures can help fund the construction of that infrastructure.  

Why am I working in silence when Kishi Bashi exists and I can hear?

As anyone who knows me knows, I am a bit of an information hoarder. I have backups of backups. I have scans of important or memorable documents and a fireproof safe for precious documents. 

One of the areas of my life that had consistently frustrated my hoarding habit was legal research until I discovered Evernote.

The problem with saving legal research is that it's difficult to create a useful taxonomy for the stuff. When saving cases, should I save it in a subfolder in the case I'm working on? That seems logical but then retrieving the case years later will require me to remember exactly what case I was working on when I came across "that one case that stood for [insert legal issue] proposition". 

If instead (or additionally), I opt to save it under the legal issue the case stands for, what should I do when the case stands for two important propositions? Kentucky attorneys will obviously know that Steelvest, Inc. v. Scansteel Service Center, Inc. gives us our summary judgment standard in state court. But, it also states that a breach of fiduciary duty is tantamount to fraud. As a consumer advocate, this is an important part of the case. Do I save Steelvest in three places: the client file, the research file on summary judgment, and the research file on breach of fiduciary duty?  

No.

I save it to Evernote by emailing it from my online research service using a special email address Evernote provides. When I email that case to Evernote, the .pdf is automatically OCR'd so that a later search for any word in the case will yield results. This means if I can just remember a snippet of language or even what judge decided the case or attorney argued the case, I can search in Evernote and find the case. (I also have a spotless .pdf that I can attach to motions and memoranda.)

Even better, though, than the automatic OCR is Evernote's organizational tools. Evernote gives users the option of placing notes in notebooks (folders) as well as tagging the notes. This means that I can email Steelvest to my Evernote account, save it to a client's notebook, and tag it with the tags "summary judgment" and "bofd" (my shorthand for "breach of fiduciary duty"). Later, I can retrieve that case in one of three ways: I can remember the client notebook the case is saved in, I can find the case by reviewing the cases that have a particular tag, or I can search for the case in the search window using words that are likely in the language of the case. 

Lawyer–Nerds should be very excited right now. And it gets better. Are you ready to have your mind blown?  Evernote gives you the ability to send a case to a notebook with certain tags in the subject line of the email you send to Evernote. They explain on their blog how this works:

In the subject line of your email, write the title of the note as you want it to appear in your account. In the same subject line, add one or both of the following:

Use @ for notebooks: Use an @ symbol followed by the name of your destination notebook Use # for tags: Use a # symbol followed by the tag or tags you wish to assign. You can have multiple tags just make sure each one starts with an # For example, Subject: Trip to Florida @travel #expense report

Would create a note titled Trip to Florida in my travel notebook, tagged with expense report.

So, in one step, I am able to put a filed, tagged, OCR'd Steelvest into Evernote by emailing it to myself with this subject line: Steelvest @clientname #summary judgment #bofd

This is, to employ some fancy lawyer-speak, bonkers.

Any seasoned advocate will tell you that having a system that will allow you to accrete and retrieve your past legal research will yield wonderful benefits over the course of a legal career. I am totally invested in Evernote as that system because it allows me to easily and usefully create multiple taxonomies of meaning for my legal research. At $5 a month or $45 a year, the premium membership is a basic business expense that every lawyer should happily incur.

Ben Carter Law PLLC has filed a class action lawsuit Jefferson County Circuit Court against attorney Marilyn Hartley, one of Louisville's largest private tax collectors. Ms. Hartley collects taxes under an assumed name, "DETCO".

In Kentucky, local governments fund their operations in part by selling unpaid property taxes as "Certificates of Delinquency" to individuals and businesses. These Certificates of Delinquency give these individuals and businesses the right to collect delinquent taxes. Today, 115 individuals and businesses have registered to purchase Certificates of Delinquency and function across the Commonwealth as private tax collectors. In the past, delinquent taxpayers didn't know what to expect from these private tax collectors: some were responsible and honest while others crushed delinquent taxpayers by charging them exorbitant, unjustified fees and costs and sometimes forcing the taxpayer's home into foreclosure. 

In 2012, the Kentucky legislature passed new laws and the Department of Revenue issued new regulations in an effort to curb the most abusive practices and ensure that third-party purchasers treated Kentucky's delinquent taxpayers fairly and uniformly. When a third party purchaser like Marilyn Hartley buys a Certificate of Delinquency, these new laws and regulations require third party purchasers to provide important information to delinquent taxpayers. The laws and regulations ensure transparency from the third party purchaser and require the third party purchaser to explain to the delinquent taxpayer the taxpayer's rights, obligations, and alternatives now that a third party purchaser owns the Certificate of Delinquency.

Transparency from the third party purchaser, fair treatment of an individual delinquent taxpayer, and equal treatment of taxpayers across the industry are important goals to the legislature: the new law forbids third party purchasers from charging interest, fees, or costs to a delinquent taxpayer's account unless they have provided the required information to the delinquent taxpayer.  

On January 22, 2013, I filed a class action lawsuit on behalf of my client—James C. Brown—and 459 other delinquent taxpayers who have been harmed by the failure of Marilyn Hartley to provide them with necessary, required information about their rights, obligations, and alternatives after she purchased their Certificates of Delinquency. Ms. Hartley purchased more Certificates of Delinquency in Jefferson County last year than any other third-party purchaser.

Read the Class Action Complaint and view the exhibits to the Complaint. 

Despite her failure to provide delinquent taxpayers with the required information, Ms. Hartley is charging interest, attorney's fees, administrative fees, and—in some cases—payment plan servicing fees. The law does not allow Ms. Hartley to charge interest and fees until after she has sent a proper notice of transfer that contains all of the information required by the new law. I believe that Ms. Hartley has unlawfully charged to the accounts of Mr. Brown and the Class members 1% interest per month, at least $52,900 for administrative fees, and at least $80,500 for attorney's fees. 

The heart of the suit is summed up in paragraph 146 of the Complaint:

In short, Defendant’s entire course of conduct—from her effort to obfuscate the true relationship between Marilyn Hartley and DETCO, to her failure to provide proper notice of transfer, to her failure to itemize both the amount currently due and the amount due under a payment plan, to her unlawfully inflated claims of amounts due under a payment plan, to her presentation of a payment plan as a one-time opportunity with a limited time to accept, to her citation to expired law—is an elaborate artifice designed to disorient hundreds of consumers, confront them with a placeless and faceless creditor, “DETCO”, and intimidate them into paying her hundreds of thousands of dollars in interest, attorney’s fees, administrative fees, and servicing fees to which she is simply not entitled under the law.

This lawsuit seeks to force Ms. Hartley to refund to the accounts of the Class members all of the unlawful interest and fees she has charged to the delinquent taxpayers' accounts. My client is asking for an injunction that would prohibit Ms. Hartley from charging fees and interest to the accounts until she has sent a notice that complies with Kentucky laws and regulations. Further, the lawsuit seeks to recover additional damages because Marilyn Hartley made false and misleading statements to get some delinquent taxpayers to enter into a payment plan agreement with her that requires them to pay interest and fees to Ms. Hartley to which she is not entitled. Finally, the lawsuit seeks punitive damages. Punitive damages in this case will serve three functions. They will:

1. Punish the Defendant for charging delinquent taxpayers interest and fees that the law forbids her from charging,
2. Make an example of the Defendant for other third party purchasers who might be tempted to line their pockets with bogus and unlawful interest and fees, and
3. Level the playing field for the third party purchasers who are abiding by the law and yet have been injured by the competitive advantage Ms. Hartley has enjoyed by charging delinquent taxpayers unlawful interest and fees.   

If you have been contacted by Marilyn Hartley or DETCO or if you are currently paying DETCO under a repayment plan, you can contact me online, email me at ben@bencarterlaw.com, or call (502) 509-3231. 

There are 115 other third party purchasers of Certificate of Delinquency operating in the Commonwealth of Kentucky today. If you suspect you are being charged too much by a third party purchaser or would like me to review a letter you received about your delinquent taxes, please contact me.

The Consumer Financial Protection Bureau (thanks, Senator Warren!) issued new rules for mortgage servicers yesterday. The good news: they're good rules. The bad news: they don't kick in until January 10, 2014. [Sad face].

Read more about the rules and the press coverage.

Even though the rules don't apply until 2014, I think that Kentucky attorneys defending homeowners facing foreclosure can consider using the rules (and the abusive, reckless, callous, obnoxious behavior of servicers that made these rules necessary) in briefs sooner rather than later. They establish an industry standard. There's good language in the Background section of the "Summary of the final mortgage servicing rules".

I am presenting to a group called "friskies" tomorrow morning. These are people who work at our schools' FRYSCs: Family Resources and Youth Services Centers. FRYSCs are on the front lines of out-of-school problems kids and families are facing that could affect in-school achievement. Tomorrow, they want info on renters' rights in foreclosure because this is an issue they see arise over and over again. FRYSCs report that often children and their families lose housing quickly and without much warning because a landlord and the foreclosing bank fails to tell the renter about the foreclosure. 

Because of the Protecting Tenants in Foreclosure Act, renters have substantial rights regarding their ability to enjoy the property they are renting even though it is going through a foreclosure. Originally scheduled to expire at the end of this year, the protections were extended through 2014 as part of the Dodd–Frank Act. Unfortunately, cuts to funding to Legal Aid organizations means that renters do not often have the representation they need and these rights often go unenforced. 

Renters' rights are pretty straightforward under the Protecting Tenants in Foreclosure Act. Provided you are not related to the landlord, are paying a fair price for the rent, and the rental agreement was an arms-length transaction, you are allowed to stay in the property all the way through the sale of the home in foreclosure. Even after the sale, the new purchaser must ask the court to issue him or her a deed. Only after the court issues a new deed can the new owner send you a Notice to Vacate and even then the new owner must provide you with ninety days (NINETY!) to vacate and find new housing. 

That's the bare minimum. If you have a lease agreement with the old landlord that lost the property in foreclosure that lasts longer than the ninety day minimum notice, you are entitled to enjoy the property for the duration of that lease unless the new owner plans on occupying the property as his or her primary residence.

As I said above, these are substantial rights that are rarely enforced because we do not fund legal aid organizations they way they should be funded and our legal system does not provide the infrastructure to renters that it should. I have created a document I'm calling "Entry of Appearance and Notice of Rights under the Protecting Tenants in Foreclosure Act". Two versions are below. One is blank and can be downloaded and handwritten. The other contains form fields into which you can type the required information.

Before you go using these forms, listen: I am not your lawyer. By using these forms you acknowledge that you are unrepresented by counsel and are seeking to assert your rights yourself, without an attorney. If I were going to be your lawyer, you would have to contact me and we would have to actually, you know, talk and you would probably have to pay me money. I am providing these forms as a community service and do not promise they will be useful or effective in any way. You know what is effective? Having a lawyer. So, you can contact me or contact the Kentucky Lawyer Referral Service to find one to help you with your case. I hate to get a stern tone with you, but seriously: I'm not your lawyer. 

All that being said and understood, here are the forms. You can "right-click" on these links to download the files to your computer).

• Blank "Entry of Appearance and Notice of Rights" (good for handwriting)
• Form-Fillable "Entry of Appearance and Notice of Rights" (good for people with computers)

Renters are often less financially secure than homeowners and so the disruption of a foreclosure can hit innocent renters even harder than it can the landlord being foreclosed upon. The Protecting Tenants in Foreclosure Act is designed to offer a brief period of stability following a foreclosure sale while the tenant endeavors to secure new housing. It's important to our community and especially our kids that we as a legal community do everything we can to provide them that stability in a time of flux. 

Do you know that sometimes being a lawyer gives me the chills?

After I announced my willingness to help lawyers build better, more beautiful, easier-to-maintain websites, a few attorneys have asked me what they can do to increase their prominence on Google's search results. Many of them have the sense that SEO ("search engine optimization") is some magic dust that techies can sprinkle onto their website that will lift the site up into the first page of search results. (Of course, many have this sense because SEO "experts" market themselves as the 21st-century's dark magicians.)

Sorry, it doesn't work like that. 

Certainly, there are some best practices you can use when creating pages and titling blog posts that will help search engines determine whether what you're saying will be responsive to a particular query from a user. But, beyond a few very basic premises (which we'll be discussing at this summer's Commonwealth Justice Conference—sign up for email updates), the reality of increasing your prominence online is that you have to actually provide value to people. Gyi Tsakalakis explains this in a useful blog post. I particularly enjoyed his list of activities that real law firms engage in. 

“So what kind of “stuff” do real law firms do? Here are some ideas:

Real law firms stand for something.
Real law firms are active in their communities.
Real law firms educate the public.
Real law firms inspire social change.
Real law firms help real people.
Real law firms partner with organizations that further justice.
Real law firms raise awareness of important social issues.
Real law firms maintain the dignity of the profession.
Real law firms participate in public service.”

— Gyi Tsakalakis

The idea, folks, is that you start getting better results online only after you start achieving better results offline. Do something in the world worth telling people about and then tell them on your site. Or, do something online that brings people together in a new and unique way. Over time, documenting the real work that your law firm does and providing real value to your online community will naturally translate into better search results. But, this is important: you do the things not to get better search results but because the things are important to do. They're important to you, your clients, your community. Maybe the traffic from search results comes, maybe it doesn't. But, either way, you've done something worthwhile with your limited time and energy.  

I have written in the past about the generational war currently being waged by old people on America's young.

To me, the crushing student loan debt that our nation's young people labor underneath is the most striking, overt, and obvious front in this often quiet, subtle war. 

Public Citizen has a quote from a WSJ article that explains the most egregious aspect of student loan debt in America: it's not just that our young people are taking on huge, never-before-seen levels of debt getting their educations, it's not just that many of them incur this debt at bologna for-profit institutions that essentially function as funnels to shove federal money into the coffers of Wall Street banks through student loans sold to young people, it's not just that the prospect of actually finding work in your chosen field  has never been bleaker, it's that the federal government has withheld from our young people relief in bankruptcy from crushing student loan debt. 

“Unlike most other types of consumer credit, student debt is extremely difficult to discharge in bankruptcy. After falling behind on payments, a borrower typically finds it harder to obtain other types of consumer loans, or can only do so at higher interest rates… Since the end of 2007, just before the financial crisis hit, total student debt has grown by more than 56%, adjusted for inflation… During that time, overall household debt—including mortgages, student loans, auto loans and credit cards—fell by 18%, to $11.31 trillion as of Sept. 30 [of this year].”

— Wall Street Journal, 11/28/12

Student loan debt is crippling an entire generation of Americans. I'm not kidding. I see it with my law school classmates who can't leave jobs they hate and work that is unimportant because they need the paycheck. I see it with my clients—homeowners facing foreclosure, people who have been injured by the negligence or recklessness of others. I see it with family members who forgo advanced degrees because the specter of six-figure debt is too haunting. Certainly, the size of student loan debts is a problem. But, the fact that young people who need to file bankruptcy cannot (except in rare circumstances) get some relief from what is likely their single-largest debt is one of the true injustices of our time. 

Antonio Ennis is rapping about foreclosure and I'm cheering out loud in my office.

This video is so awesome and so full of winning I have no words. And that is rare.

Yesterday, I presented at the Kentucky Bar Association's Kentucky Law Update on our foreclosure crisis. I wish I could pull the tape from yesterday's presentation to prove to you that this is a direct quote: 

“Folks, this crisis [the foreclosure crisis and the imbalance of power of the parties] is the defining legal issue of our time. This is our Gideon v. Wainwright moment and we will be judged by how we respond.”

In today's New York Times, professor Matthew Desmond says, seriously, the exact same thing for landlord–tenant cases.

“Our legal system extends the right to a state-appointed attorney to someone facing months or years of prison but not to someone facing months or years of homelessness.”

— Matthew Desmond in the NYT

The time has come to establish the right to counsel in cases where a family's housing is on the line. 

I am presenting today in Louisville, Kentucky to a huge room of Kentucky attorneys on our ongoing foreclosure crisis. Many thanks to the Kentucky Bar Association for asking me to speak again this year at the Kentucky Law Update.

Last year, I spoke about the Home Affordable Modification Program (HAMP), the federal program designed to encourage servicers to modify struggling homeowners loans by offering them money for each loan they modify. (Here's the video of that presentation.)

This year, I'm discussing two recent Kentucky Court of Appeals decisions and then pivoting to a novel, but important argument that most advocates ignore: equity. Kentucky courts exist to consider both legal and equitable arguments in each case. My position is that foreclosure cases beg for equitable arguments.

I hope to have a video to post for you at a later date, but for now here is the PowerPoint presentation I will use today. Download the PowerPoint file for the notes section. If you just want the slides (preserved in their original formatting and not screwed up by the fact that you don't have the typeface I used), download the .pdf. 

If you're reading this because you attended the presentation, thanks again for attending. If you are an attorney or a homeowner with questions about foreclosure, contact me online or give me a call: 502-509-3231. 

If you are interested in foreclosure, justice writ large, and/or if you are an attorney who wants to use your law degree to make Kentucky a better place, sign up for email updates about the Commonwealth Justice conference I'm organizing. It's going to be in Louisville from August 8 to August 10, so sign up and mark your calendar. It's gonna be awesome. 

I am back in Ashland at my parent's place for Thanksgiving. I have been up since 5:30 cranking K-Cups in a quiet house and working on a contract for one of my clients, a great video production shop in Louisville.

One of the great aspects of lawyering in 2012 is that we can do it from most anywhere. My documents are securely stored in the cloud, my practice management software is available online, and I can do all of my research on the internet. This offers great freedom. 

Of course, it also means that I have done work while on a beach in Palau, from a coffee shop in New York, and a condo in South Carolina. I have responded to client emails from gas stations, during meals, and while sitting at red lights. (Do not text and drive, people. That's caveman-style levels of unsophistication.)

So, for my lawyer friends: how do you prevent the ability to work from anywhere from becoming the need to work from everywhere? What boundaries, if any, do you set up to separate yourself from work? 

When I was in Palau in December, the Island Times was nice enough to publish this letter. 

Dear Palau,

Palau needs a bankruptcy code. I did not know that four years ago when I was working as a Public Defender for Palau, but I know it now. Too many Palauans live with crushing debt from which they will never recover. If Palau wants to provide those families any hope, it needs a bankruptcy code that offers Palauans a fresh start following financial devastation.

I have spent most of the last four years defending homeowners in Kentucky from foreclosure. That is, I have spent the last four years discussing debt and household finances with thousands of families.

While I was a Public Defender in Palau, I had the opportunity to take a few civil cases for debtors who owed either a store or another person a significant amount of money. Unfortunately, the only relief I could provide was trying to negotiate a complete repayment of those debts over the course of a number of years—often at usurious interest rates. These negotiated settlements were frustrating and unsettling to me personally because it meant that these debtors would have to struggle for years if not decades before saving for retirement, investing in their or their children’s education, starting a business.

Allowing people to file for bankruptcy wouldn’t just help individual Palauans who find themselves in over their head due to unemployment, medical setbacks, or poor financial management. Rather, there are at least five distinct benefits to providing Palauan individuals and businesses with a fresh start through bankruptcy.

• Bankruptcy encourages economic development because it enables entrepreneurs to take risks with the understanding that if those risks don’t pay off, their lives and finances are not forever ruined.

• Bankruptcy also encourages economic development by incentivizing investors and businesses to lend only to the most creditworthy entrepreneurs and customers.

• A bankruptcy code would provide business partners with an orderly and predictable disposition of a failed business’s assets. This predictability reduces the cost of doing business and the cost of litigating the dissolution of the business.

• Because the bankruptcy code provides parties with an orderly way of winding down businesses and discharging indebtedness, the court system may enjoy less litigation and fewer collections actions.

• As I previously mentioned, Palauans deserve a fresh start. With a bankruptcy code, Palauans will know that getting laid off, encountering bad luck, or suffering through medical setbacks won’t forever plague their family’s chances at financial stability.

I hope you will not interpret this letter as the presumption of a haole thinking he knows what’s best for Palau. Having lived in Palau, I appreciate that Palauan bankruptcy will likely look very different than American bankruptcy—molded to respect tradition and the realities of life in Palau. But, I counseled plenty of hardworking Palauan families who will spend years struggling to pay back loans at unfair interest rates, struggling often with no realistic chance of ever actually catching up.

While I was in Palau, I failed to appreciate the benefits of having a bankruptcy code and failed to do anything to provide these families and individuals with the hope of a fresh start and the opportunity for financial stability. Now that I’m off-island, I look back and fear I missed an opportunity to leave a lasting impact in Palau and provide a lasting service to its people by advocating for passage of a bankruptcy code.

I am on-island over the holidays for a brief vacation and wanted to take this opportunity to urge the Palauan people to encourage their legislators to pass a bankruptcy code. To survive and thrive, Palauan families and businesses need the opportunity at a fresh start that bankruptcy promises.

I am happy to help this effort in whatever way I can from the United States. If you are interested in working on this issue, please contact me at ben [at] bencarterlaw [dot]com.

Sincerely,

Ben Carter