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How All Clients Should Dress For Court.


I don't know about you, but I always impress upon my clients that court hearings are serious business, that you should always try to look neat, professional, and respectful, and that appearances matter.

Alleged Fort Lauderdale "Foreclosure Mill" Slammed By Sarasota Judge



Personally, I'd like to see more orders like this from our local judiciary, but maybe the west coast winds will blow east:
Circuit Judge Janette Dunnigan scolded five lawyers from the Smith, Hiatt and Diaz firm in connection with a Manatee County foreclosure case filed in 2007. The firm is one of several "foreclosure mills" filing thousands of foreclosure cases monthly.
The firm's attorneys filed what amounted to "sham" paperwork setting seven hearings over two years, and then failed to appear in court or tell the judge or other parties when they were canceled.
The case is still unresolved.
The behavior is willful, deliberate and flagrant and violates oaths of professional practice for lawyers, Dunnigan said. The firm also routinely does not comply with local court rules about how foreclosure cases should be handled, Dunnigan ruled.
"It is disrespectful and inconsiderate of the court's time and impedes judicial administration," Dunnigan said.
I'm not following -- what exactly is the problem?

Let's take a closer look at the Smith, Hiatt & Diaz law firm (aka "SHD").

First off, they have separate "homeowner" and "client" entrances on their website.

Hmmm, let's go with "client":
In order to maximize the service we provide our clients, the Firm is always focused on technology. We utilize computerized case management programs that enable the Firm to be pro-active in facilitating the communication of case status information. We utilize all industry recognized web-based referral and communication systems. Our Web Site facilitates borrowers who are interested in loss mitigation.
I don't understand what any of that means, but maybe it's time for a software upgrade?

Now let's try "homeowner":
The goal of this web site is to provide Homeowners with important information concerning potential resolution of disputes related to their mortgage. Various lenders have programs that assist Homeowners with resolution of defaulted loans. These lenders may be able to resolve a default and any dispute without continued court intervention.
 Ok, am I missing something here?

Bankruptcy Judge Olson Denies Incendiary Motion To Recuse.

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Although many tipsters (thank you!) alerted me to this motion to recuse filed before Fort Lauderdale Bankruptcy Judge John K. Olson last week, I was reluctant to blog about it.

To be honest, I still am.

In any event, Judge Olson has now forcefully (in my view, persuasively) addressed the motion on the record.

He held an expedited hearing on the motion Thursday afternoon, and just entered his order denying the recusal request.

The order has a pretty good summary of the alleged grounds, which I won't repeat here, but Judge Olson really gets going when he discusses the type of "disclosure" the movants appear to be requiring of him:
The movants would have me engage in pointless record disclosure at the beginning of every matter in which Ruden McClosky represents a party:
For the record, I am getting married to an attorney who works for the Plaintiff’s firm. He is not involved in this case and recusal is therefore not required under 28 U.S.C. § 455(b)(5)(ii). He is a salaried attorney who has no interest which could be affected such that recusal is not required under 28 U.S.C. § 455(b)(4) or (b)(5)(iii).  This record disclosure is required pursuant to § 455(a) and (e) to avoid any appearance of impropriety, but you are not entitled to withhold waiver because my fiancé’s employment is an insufficient basis for recusal under the case law applying § 455. Please confer outside of my presence and notify my law clerk when you are prepared to give your mandatory record waiver.
And this is no joke. This is quite literally what the movants are asking for. Their misunderstanding of § 455 was painfully betrayed at the August 26th hearing when movants’ counsel forcefully argued that I should recuse myself from any matter in which Ruden McClosky represents a  party. Whether movants’ counsel did not adequately research the case law on this subject, or simply did not digest it, I do not know. But fiery, impassioned oral argument in the face of a glass mountain of precedent, with no acknowledgment of that glass mountain, and no hint at a good faith basis for a change in the law? This is normally sanctionable under Fed. R. Bankr. P. 9011(b). The only reason why sanctions are not warranted here despite this appalling lack of diligence is the “layman perception” rule.
As they say, read the whole thing.

Alan Kluger and the Kinoki Foot Pad.



I'm not a fan of sanctions motions.

They're unpleasant, usually directed specifically at opposing counsel, and often are subject to abuse or misuse.

Of course, sometimes they are appropriate and necessary.

Still, the standard for filing one should be "clear and convincing," at minimum -- if you harbor any doubt at all about the action in question, let it go and address the issue on the merits.

Our friend Alan Kluger just had a Rule 11 motion denied by Judge Cohn involving, of all things, foot pads.



(Once again, that's a sentence I never thought I'd write!)

I like Judge Cohn's order, which you can read courtesy of Scribd here, for its simplicity and directness.

Alan undoubtedly knows what he is doing, but you have to wonder about continuing to pursue a Rule 11 motion regarding the reasonableness of the plaintiff's complaint after the Court has already denied a motion to dismiss as to a number of the plaintiff's claims.

How does that advance the litigation?

Indeed, is it possible the defendant has lost something more here than just this particular motion?

UK: England and Wales: the reflective loss principle

The Court of Appeal decision Charles Frederick Webster v Sandersons Solicitors (a firm) [2009] EWCA Civ 830, which concerned the application of the reflective loss principle, was handed down at the end of last month. It has recently been reported in the Law Society Gazette: see here.

SFL Friday -- Burn Baby Burn Edition


Hi kids, it's hot, I'm been working all day, and I'm in serious need of some windsurfing.

Spread some positive karma out there and have an awesome weekend -- I'll try to check in tomorrow morning.

UK: financial regulation and the competitiveness of London

An interview with Lord Turner, the chairman of the Financial Services Authority, appears in the September edition of Prospect Magazine. Lord Turner's observations have been widely reported in today's newspapers with front page reports in the Financial Times and Guardian. The Financial Times reports:

The head of Britain’s top banking watchdog supports the idea of new global taxes on financial transactions, warning that a 'swollen' financial sector paying excessive salaries has grown too big for society. Adair Turner, chairman of the Financial Services Authority, says the debate on bankers’ bonuses has become a 'populist diversion' and that more drastic measures may be needed to cut the financial sector down to size. He also says the FSA should 'be very, very wary of seeing the competitiveness of London as a major aim', claiming the city’s financial sector has become a destabilising factor in the British economy".

Meanwhile, the Guardian's report states:

The government's top financial regulator last night backed radical plans for a multibillion-pound tax on banks as a way to tackle the City's persistent bonus culture. Lord Turner ... warned bankers that he would support a new wave of taxes on the City to prevent excessive profiteering if they continue to take excessive risks. In a searing critique of the industry, Lord Turner described much of the City's activities as 'socially useless' and questioned whether it has grown too large".


Suge and Kanye Mediation Impasse!

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So E Online is reporting that yesterday's Suge Knight/Kanye West mediation impassed and, according to Suge's handsome attorney Marc Brumer, the next step is trial:
West's attorney wouldn't comment, but Knight's lawyer, Marc Brumer, says the case is headed to trial if the two gentlemen can't reach a settlement. They also spent a fruitless six hours trying to make a deal in June.
Guess Kanye just phoned it in (literally).

Marc's not going to trial so fast, however -- he has three significant summary judgment motions to deal with first, all of which will be decided by Judge Seitz.

I'm partial to the one directed to Suge's claim for $18 million in lost wages, which you can review above.

It starts with this:
There is no genuine issue of material fact as to Knight’s lack of damages in the form of lost wages. Mr. Knight’s own testimony (the only record evidence) regarding his lost wages claim establishes he has no independent knowledge or recollection of his earnings prior to his injury.
Q. What was your salary per year from the company?
A. Well, when I was incarcerated, zero. So I don't recall anything except that.
Deposition of Marion H. Knight (May 11, 2010), p. 549, l. 2 – 5 (attached hereto as Composite Exhibit “C”). Knight has been unable to provide any substantive evidence to support Mr. Knight’s lost wages claim.
It goes on from there:
Essentially, the claim morphs from one of lost wages to a claim that but-for the shooting, Knight “would have” been able to work out a settlement with Lydia and Michael Harris - a couple who obtained a 107 million dollar default judgment against Death Row Records, Inc., and Knight, individually, approximately five months prior to the shooting. See Deposition of Marion H. Knight (April 28, 2010), p. 186 – 188 (attached hereto as composite Exhibit “C”).

Such an attenuated argument flies in the face of the reality that Death Row Records, Inc., had closed its doors in April 2005 (five months before the shooting) as a result of the $107 million default.
I don't know about you, but this sounds pretty compelling.

Let's just split the baby at $9 million and call it a day!