Thursday, April 22, 2010

Mortgage foreclosure mediation program launched

Circuit Court of Cook County Chief Judge Timothy C. Evans has announced a program to assist struggling homeowners facing foreclosure.

According to the Circuit Court's press release (linked above), the Cook County Mortgage Foreclosure Mediation Program "will provide free housing counseling and legal services to Cook County homeowners and families in foreclosure. The program is aimed at helping homeowners resolve their mortgage cases in the most timely and respectful manner possible."

Judge Evans said, "The program's goal is to deliver critical services to homeowners as early as possible once the foreclosure process begins. In this way, homeowners in crisis are assured of receiving the support and information they need to explore fully their options either to stay in their homes or to negotiate a respectable exit."

To be eligible for this program, a person must be the owner and occupant of a 1-4 family home or condominium. Investment properties are not part of this program. The property being foreclosed must be in Cook County and must be the borrower-defendant's primary residence. Finally, the program applies to all foreclosure cases with an initial case management date on or after June 11, 2010. All such cases will have been filed on or after April 12.

Although I do not handle mortgage foreclosure cases, I took the opportunity to attend an April 9 briefing by Judge Dorothy Kirie Kinnaird, the Presiding Judge of the Chancery Division, offered for practitioners. In her remarks, Judge Kinnaird stressed that the program is not meant to delay foreclosure when foreclosure is appropriate; mediation will be allowed only when there is "something to negotiate." In some cases, there may be nothing at all to mediate, although there still may be an opportunity to work out a dignified way to leave the property.

Who decides whether there is something to negotiate in any given case?

The first step in determining whether a homeowner will be able to stay in his or her home is to contact a HUD-certified housing counselor. Any homeowner sued for mortgage foreclosure summons after April 12 should be served with a new five page summons. The second page of the new summons form provides the information that a homeowner needs to pay attention to in order to participate. Among the items on that notice is a toll-free number to call to set up a meeting with a HUD-certified housing counselor that is participating in the Cook County program. Information about securing legal representation is also included on that form. Interested readers can find out more about these services by visiting

Homeowners facing foreclosure may be contacted by all sorts of people offering to help. Unfortunately, some of these people may only be out to help themselves. Sadly, there are people who would prey on distressed homeowners. Homeowners must be careful to deal only with knowledgeable attorneys and reputable, HUD-certified housing counselors.

According to Judge Evans, the Cook County Mortgage Foreclosure Mediation Program is an unprecedented partnership between the Circuit Court of Cook County and several state and local organizations. According to the court's press release, the program is funded by the Cook County Board and administered by the Circuit Court's Chancery Division, the Circuit Court "and partner organizations, including the Illinois Housing Development Authority, The Chicago Bar Foundation and The Chicago Community Trust." The program will work with "attorneys and mediators from the Center for Conflict Resolution, the Chicago Legal Clinic and Chicago Volunteer Legal Services to provide access to free assistance to homeowners who have received a summons to appear in court."

Sunday, April 18, 2010

Lawyers needed to protect against Internet trolls and improper incursions into online privacy

In his Friday column in the Chicago Tribune, John Kass wrote about anonymous, malicious Internet trolls. He wasn't writing about the ones who respond to his columns online (or to any other news article or opinion column on a mainstream media website) -- though these are bad enough. Kass was writing about college kids trashing one another on an anonymous website called College ACB (Anonymous Confession Board). The name may put one in mind of other confessional sites like Post Secret -- but Kass says the name is misleading. "Is it a confession to tell the world that someone named Tina is a slut crawling with disease?" Kass asks.

And even the "press release" describing the site does not pretend it is for kids to secretly confess their own failings. According to its "press release," College ACB "is the campus center, the dorm room, the cafeteria, and the lecture hall, all combined into a single, easily accessible forum where everyone is invited to converse openly, without fear of reprisal or reprimand. From sexuality to politics, from keg parties to concerns about course selections, the ACB is a website that helps build community and engenders the open exchange of information."

If Kass is correct, though, the real focus of ACB is providing a platform where college kids can say the most vile things about other college kids, even identifying them by name. Kass sums up thusly: "It's all about anonymous cruelty."

Kass suggests that sites like College ACB will eventually fade away. He speculates that lawyers will be part of the solution -- and he's not happy about it. He concludes:
"Both the law and the Internet are evolving as new cases arrive," said Sam Bayard, assistant director of Harvard University's Citizen Media Law Project. "In the absence of a Supreme Court case that takes up how this should work, it will continue to be a patchwork of legal doctrines."

Yet sooner or later, the Supreme Court will get around to it. The trolls will be identified, perhaps on "Expose the Trolls Who Dissed You on ACB" or on some libel law firm's site like ""

There is one species even more bloodthirsty and relentless than the Internet trolls:


And like reality, they bite.
Mr. Kass: Why are lawyers bad here? What's the problem with the law evolving on a case by case basis? The common law has been evolving since the reign of Henry II. Progress has been uneven, certainly, and not always free of controversy -- but human rights have advanced since the 1100s, haven't they? And, anyway, what's wrong with exposing Internet trolls to the sunshine -- and defamation liability? What's the alternative? Repeal of the First Amendment?

Gosh, I hope not.

Modern technology has made the First Amendment more important than ever. The Fourth Amendment, too. A man's home may still be his castle, but the battlements needn't be breached before the inhabitants' privacy is. In suburban Philadelphia, for example, the Lower Merion School District is being sued because security software in school-issued Macintosh laptops was used to take pictures of students in their own homes. According to this AP story by Mary Claire Dale, The software allegedly let Harriton High School technology personnel take "over 400 screen shots and webcam images" of sophomore Blake Robbins. (ABC News coverage here.)

The school may have been authorized to activate its spy technology when students failed to pay the required insurance for the laptops, or failed to return them at year end. But 400 images of one student? Awake, asleep and undressing?

In other technology/privacy news, the Federal Department of Justice just dropped efforts to obtain warrantless access to certain Yahoo! Mail accounts pursuant to an application under 18 U.S.C.A. §2703(d). This is not a change in heart prompted by a change of administrations: The government has been pursuing this application for some time since Mr. Obama's election(see this related April 13 CNET story for background.)

Yes, government lawyers are pursuing a number of courses that endanger the expectation of privacy that we have in our emails and other private electronic communications -- this February 11, 2010 CNET article, for example, relates how the DOJ has filed a brief trying to uphold the convictions of bank robbers who were tracked through their cell phones, arguing that cell phone users have no reasonable expectation of privacy concerning their cell phones' location.

But other lawyers are resisting and trying to find an appropriate balance between the needs of society as a whole in fighting crime and individuals who don't like being tracked like migratory caribou with radio-transmitting collars.

I would hate to think that the price we must pay for holding on to the shreds and tatters of our remaining privacy in modern, high-tech America is the tolerance of Internet trolls defaming our children. I prefer to think courts and lawyers will and should play a helpful role in helping to establish new and acceptable Internet behaviors that respect privacy, anonymity, and our families. Even -- aside to Mr. Kass -- if some of them make a couple of shekels in the process.

Image obtained from this site.

Tuesday, April 13, 2010

Connecticut pol sues self -- certain of victory?

As Connecticut's Secretary of State Susan Bysiewicz explains and defends that state's election laws. But Bysiewicz wants a new job this year; she wants to be elected Connecticut's Attorney General.

By statute, however, a candidate for attorney general in Connecticut must be "an attorney of at least ten years' active practice at the bar of this state." (CGS 3-124). Bysiewicz was a corporate lawyer for eight years before entering politics, but two of these were spent in New York City. She's been Connecticut Secretary of State for more than a decade.

Is that sufficient to meet the statutory requirement? According to this AP story (by Stephanie Reitz) and this press release on Bysiewicz's campaign website, Bysiewicz is contending that (a) her experience is sufficient to meet the requirement and (b) even if her experience is insufficient, the requirement is unconstitutional.

Reitz's story for the AP notes that Republicans have had a field day with Ms. Bysiewicz's suit. The Connecticut GOP was so thrilled about the case that it actually volunteered to join it -- as a defendant -- so it could depose Bysiewicz and force "her to acknowledge... that she's never tried a case and hasn't been in a courtroom since law school." Indeed, Reitz writes, Bysiewicz "acknowledged under grilling by a GOP lawyer that she has never used the manual of Connecticut court procedures and rules governing attorneys, had never sat at a counsel table and had never been to a deposition or been a witness in a case."

Meanwhile, Bysiewicz's campaign bio says that she's a "graduate of Yale College and Duke University School of Law, [that] she is admitted to practice in both New York and Connecticut and has practiced corporate and international law at the law firm of White & Case in New York City, as well as corporate and banking law at Robinson & Cole in Hartford. In addition, Bysiewicz has practiced pension and health care law in the law department of the Aetna Insurance Company."

And they're all talking about the same person, too.

This story seems like an update of the old story about the time Abe Lincoln was on opposite sides of the same issue in two cases argued on the same day in the Illinois Supreme Court. The judges couldn't help but notice. "Surely, Mr. Lincoln," said one of the learned justices, "you can't expect to win both these cases."

"Well, no, Your Honor," replied Honest Abe, "but I figure to win one of them."

Here Bysiewicz is suing herself. One way or the other, she's gotta win this case, right?

More seriously, the constitutional challenge in Connecticut may help to explain why, in Illinois, calls to require minimum legal practice experience requirements for would-be judges are always framed as constitutional amendments. (See, for example, HJRCA 57.)