The Rise and Fall of Ms. Dory Goebel

Naked Capitalism snags a great case out of the US Bankruptcy Court for the eastern district of Louisiana. In Re: Wilson. While the robo-signing phenomenon is hardly new - its violent collision with bankruptcy courts never fails to entertain.

The backstory of this case is that the debtors, Ron and LaRhonda Wilson, fell behind on their mortgage and filed for chapter 13 bankruptcy in September 2007. They entered into an agreement with the US Trustee to pay regular installments to the trustee for what they owed on their mortgage prior to declaring bankruptcy. They also agreed to continue paying all future mortgage payments directly to their lender, Option One.

Assuming all goes to plan - you would think Option One would be happy with this. The amount in arrears will be paid after a delay, but the ongoing payments will continue. A blip in the payment record, but Option One gets their money.

Option One is not happy. January 2008 they ask the court to allow them to go after the Wilsons for their money. The reason? The Wilsons haven't made the payments they promised (November 2007, December 2007, and January 2008). The Wilsons are bums, and Option One wants to foreclose.

The Wilsons counter that they have made all their payments since September, and Option One is simply wrong.

The law favors the Wilsons for one simple reason: Option One didn't supply any evidence with their motion. Motion denied.

Option One digs into their records and comes back swinging a month later. Now they claim that four payments haven't been paid - and this means the escrow may be insufficient to pay real estate taxes (the horror!). This assertion is backed up by an affidavit by Option One's new champion, Ms. Dory Goebel.

Ms Goebel affirmed:

Appearer has reviewed and is familiar with the mortgage loan account of RON WILSON, Sr. And LA RHONDA WILSON (“Mortgagor”) represented by the afore described note and mortgage and the records and data complications [sic] pertaining thereto, which business records reflect acts, events or condition made at or near the time by Dory Goebel, or from information transmitted by a person with knowledge thereof and which records and data complications [sic] are made and kept as a regular practice of the regularly conducted business activities of OPTION ONE MORTGAGE CORPORATION.

Ms. Goebel then declared that the balance due on the note was $176,063.27 and that Debtors were in default under their plan for failure to pay the monthly installments accruing from November 1, 2007, through February 1, 2008. Ms. Goebel represented that the last payment on the note was applied to the October 1, 2007 installment.

So there, sworn testimony that the Wilsons haven't been paying Option One.

By now it's April 2008. So presumably, Option One is owed these four payements and more.

But there's a problem. Six actually. The Wilsons enter into evidence copies of six payments. Western Union money orders and cashiers checks. Five of these payments have confirmation of receipt by Option One.

Oops.

The Court asks Option One's attorney - a Mr. Wirtz - to explain this discrepancy.

Wirtz discloses that his client agrees that, yes in fact, the Wilsons did make their October, November, and December payments. BUT, he claims, they still haven't paid all that they owe (presumably the January, February, and March 2008 payments), so the court should allow Option One to foreclose.

The Court reminds Mr. Wirtz and Ms. Goebel - via a show cause order - that there's still the matter of why Ms. Goebel's affidavit said the Wilsons had not paid when there was convincing evidence (including the signatures of Option One employees on certified mail receipts) for payments that Ms. Goebel has sworn did not exist.

Another hearing is held. Mr. Wirtz appears, but Ms. Goebel "was not present." Mr. Wirtz admits that the Wilsons are, his bad, current on their loan payments.

Oh, ho, ho. Silly me. Let's forget about that whole 'wanting-to-take-their-house-thing' okay, your honor? What'dya say?.

The Court jointly sanctioned Option One and Ms. Goebel $5,000.00 for failure to appear and $5,000.00 for filing a false affidavit. Option One was also ordered to pay $900.00 in attorney’s fees to Debtors’ counsel. The Court sanctioned Mr. Wirtz $1,000.00 for failing to amend the Second Motion and Default Affidavit once he obtained information which revealed that they were false.

The Court then pursued further investigation into why Ms. Goebel - working for Option One, but technically an employee of Loan Processing Services - would file a false affidavit.

I'll let the court summarize what followed:

From July 9, 2008, through December 2010, the parties conducted contentious discovery. Ten (10) motions to quash, compel, clarify, reconsider orders, stay proceedings, request protective orders; and appeal interlocutory orders were considered along with responses, oppositions and replies to each.

Finally, the court and the US Trustee pin Option One, LPS and Ms. Goebels down and get their explanation.

Ms. Goebel explains how she investigated the payment history of the Wilsons:

To execute such an affidavit, once I receive the affidavit, I will review the information that is in the affidavit with Option One’s [computer] system. So, I will validate the information based on their system and the information that is there.

Ms. Goebel is physically at LPS. So she's logging into Option One's system remotely and then comparing what she sees there with what the LPS system is telling her.

What the LPS system should have been telling her is that the Wilsons payments were being received. But the computer system doesn't say this, because LPS didn't mark the Wilson's file as a bankruptcy case until after their new payments were received. This meant payments destined for October 2007 were applied to pre-bankruptcy payments owed from June 2007. When the file was finally marked as a bankruptcy file - new payments were dropped into a general fund and the Wilsons balance was not credited. Payment was received, but it wasn't showing up on Ms. Goebel's monitor.

So.... she filed an affidavit based on what she saw on her screen. All a big misunderstanding, right? Wrong.

As part of its default services, LPS executed Affidavits of Default in support of Motions for Relief from Stay. LPS testified that it was just one of the services that LPS provided to clients. The affidavit is typical. It purports to be executed under oath before a notary and two (2) witnesses. It provides the name and title of the affiant and represents that the affiant has personal knowledge of the facts contained in the affidavit In fact, it is a sham.

...By corporate resolution, Option One grants these individuals “officer” status, but limits their authority to the signing of default affidavits. These “officers” execute 1,000 documents per day for Option One and other clients similar to the one used in this case. In fact, Ms. Goebel is an employee of LPS with little or no connection to Option One. Each day Ms. Goebel receives approximately thirty (30) documents to sign. The process of signing default affidavits is rote and elementary.

As Ms. Goebel is also a manager of a work unit at LPS, she allocates two (2) hours per day for document execution and estimates that it takes her five (5) to ten (10) minutes to sign each affidavit she receives. Before signing an affidavit, Ms. Goebel follows the procedures directed by LPS. She checks three (3) computer screens that provide the amount of the installment payment, the total balance due on the loan, and the due date for the earliest past due installment. She matches this information with that contained in the affidavit. If it is correct, she signs the document and forwards it to a notary for execution.

Although the affidavit in this case purported to verify that Option One was the holder of the note owed by Debtors through an assignment, Ms. Goebel does not personally know this to be a fact and made no effort to verify her assertion. Similarly, the affidavit identifies the mortgage and note as exhibits to the affidavit, but Ms. Goebel neither checks the attachments nor verifies that they are correct. In fact, the affidavits she signs never have any attachments when forwarded to her for execution, and she never adds any.

Well now, that's a little harsh - don't you think your honor?

Don't you think you could-?

Ms. Goebel’s training on the seriousness of her task was sorely lacking. She could not remember who “trained” her when she was promoted in 2007 to a document execution position.92 She could not remember the extent or nature of her training. 93 She did surmise that written procedures were given to her and then she began “signing.”94 She described her task as “clerical”95 and repeatedly expressed the belief that the affidavits were counsel’s affidavits, and therefore, she relied upon counsel regarding their accuracy.96 In this admission, the real problem surfaces.

But, now we know a mistake was made... Can't we just --?

Default affidavits are a lender’s representation as to the status of a loan. They are routinely accepted in both state and federal courts in lieu of live testimony. They are an accommodation to the lending community based on a belief by the courts that the facts they present are virtually unassailable. The submission of evidence by affidavit allows lenders to save countless hours and expense establishing a borrower’s default without the need for testimony from a lending representative. While they can be refuted by a borrower, too often, a debtor’s offer of alternative and conflicting facts is dismissed by those who believe that a lender’s word is more credible than that of a debtor. The deference afforded the lending community has resulted in an abuse of trust.

And there it is, yet another eloquent explanation of why robosigning is not a paperwork problem. It is a deliberate abuse of trust on the part of the lending community. Simply put - It is fraud.

The court then gives Ms. Goebel both barrels, then beats her employer over the head with the butt of the shotgun.

The abuse begins with a title. In this case, Ms. Goebel was cloaked with the position of “Assistant Secretary,” in a purposeful attempt to convey an experience level and importance beyond her actual abilities. Ms. Goebel is an earnest young woman, but with no training or experience in banking or lending. By her own account, she has rocketed through the LPS hierarchy receiving promotions at a pace of one (1) promotion per six (6) to eight (8) month period.97 Her ability to slavishly adhere to LPS’ procedures has not only been rewarded, but has assured the development of her tunnel vision. Ms. Goebel does not understand the importance of her duties, and LPS failed to provide her with the tools to question the information to which she attests....

...In this case, LPS had personal knowledge of four (4) critical facts. First, that as of February 15, 2008, Option One had received two (2) payments from Debtors in amounts sufficient to satisfy the installments due for December and January. Second, counsel had directed that the payments be sent to it rather than posted. Third, Option One alerted LPS in February that the amounts forwarded were sufficient to bring the loan current. Fourth, counsel reported to LPS that they had only received $1,846.84, a fact LPS neglected to forward to Option One. As a result of this knowledge, LPS should have known that a payment was unaccounted for between Option One and Boles. An inquiry to either might have brought the problem to light. Instead, LPS ignored the facts...

...The fraud perpetrated on the Court, Debtors, and trustee would be shocking if this Court had less experience concerning the conduct of mortgage servicers. One too many times, this Court has been witness to the shoddy practices and sloppy accountings of the mortgage service industry. With each revelation, one hopes that the bottom of the barrel has been reached and that the industry will self correct. Sadly, this does not appear to be reality....

(signed) Hon. Elizabeth W. Magner
U.S. Bankruptcy Judge

I'm thinking Bankruptcy judges should start nailing lender's pelts to the wall outside their courtroom. Maybe banks will start getting the message.

Portrait of a Beatdown

Lest you think I was exaggerating in my prior post - here's some of the relevant court transcript from HSBC Bank USA, NA as Trustee for Nomura AAC vs Orlando Eslava.

Yves calls it "a doozy."

I call it art. Some artists work in clay, some work in oils, Miami-Dade County Circuit Judge Jennifer Bailey works her magic in righteous indignation. Unlike the rest of us, Judge Bailey is empowered to act on her indignation.

By way of prologue HSBC Bank has previously been ordered by the court to post a bond to indemnify the defendant - whose house they have foreclosed on despite not having the mortgage note that establishes that the house is rightfully theirs. The deadline has passed without the bond being posted. The court is not amused.

HSBC Bank is represented by a Mr. William Huffman, the Florida Default Group by Ms. Suzanne Hill, and the (reserved and presumably gleeful) attorney for the defendant, Orlando Eslava is a Ms. Sheleen Kahn.

The curtain rises

THE COURT: And so then you know what you do? You file - if you have a problem with the court order and you get inconsistent directions from your client, you file a motion for extension of the time to file the bond, you come forth and say to the Court the case is in loss mit[igation] hold, can we postpone the filing of the bond? Can we give up the sale date so that I can give it to somebody else who really needs to sell ap piece of property on the courthouse steps? Instead of just ignoring a court order, because that's what happened here.

MS HILL: I don't disagree that it could have been handled much better. I do agree to that.

THE COURT: I appreciate your diplomatic response, but is there any reason why the Court should not issue sanctions in this case? I mean, the court order was simply, based on what you're telling me, ignored because the client took the file in loss mit[igation] hold.

MS. HILL: Well, it was not complied with, that is correct, your Honor. And it was because it was on hold.
     And Mr. Huffman honestly believed that if the case was still on hold, he had no objection to having the case dismissed.
     As far as opposition at that hearing, Mr. Huffman believed he conveyed instructions to the local counsel that the case was on hold and there was no opposition.
     I can't speak to what was said at that hearing --

THE COURT: Let me just be clear. I'm not going to sanction Mr. Huffman. Mr. Huffman, you know, he's just doing what the e-mails tell him to do. I know that.
     At some level there is responsibility on the part of this court to make sure that notwithstanding whatever kind of sloppy operation the plaintiff is running, that court orders are complied with.
     And Mr. Huffman, at the end of the day, this trust is going to be over and at the end of the day some day this foreclosure crisis is going to be over. And you need to decide what kind of lawyer you're going to be. Because at the end of the day you're responsible for your client's compliance with court orders.
     And saying, oh, well, my client told me this, is not a defensible position because you swore an oath to follow the Rules of Civil Procedure and to follow the rule of law. And at the end of the day when they bury you, the words "HSBC Bank USA, NA as Trustee for Nomura Asset Acceptance Corporation, Mortgage Pass-through Certificates Series 2006--ARI will probably appear nowhere in your obituary.
     So, you know, the bottom line - and I'm not giving you a lecture that I am not routinely delivering to foreclosure lawyers at this point in my career, which is, all lawyers have is your reputations. We don't make widgets, we don't buil[d] clocks, we don't build cars. We have nothing but the pleadings we file and sign our name to to evidence the quality and integrity of who we are.
     And when you get a court order that says post a bond -- and you're being required to post a bond for a very logical reason. It's a trust. It's going to expire by its terms.
It's not the Bank of America. I don't know if it's going to be there in six years. And you've lost the note and you're required to indemnify the defendant and therefore you have to post a bond.
     When that order is simply ignored and further motions for clarifications with the Court are not sought, you know, yes, do I understand completely that this is the client not knowing the left hand from the right had, yes; but at the end of the day, you're the lawyer, you're responsible.

MR. HUFFMAN: Yes, your Honor.

THE COURT: How many people currently work in your office?

MR. HUFFMAN: Attorneys or --

THE COURT: Attorneys.

MR. HUFFMAN: Fifty.

THE COURT: How many files are you currently responsible for?

MR. HUFFMAN: I don't have that number. I'm not sure.

THE COURT: How many cases can you tell me you know anything in detail about the loss mitigation status of the file?

MR. HUFFMAN: Well, the way it's set up, the bank handles the loss mitigation separately.

THE COURT: So the answer is zero. You're filing pleadings in court every day and you don't even know what's going on with the case.
     And see, the really interesting thing to me as a judge is that in no other species or kind of law would that be remotely acceptable or, frankly, anything short of malpractice. But somehow in Foreclosure World everybody things that that's just fine, that you can know absolutely nothing about your files and walk in here and ask judges for things left and right without even knowing what's going on.
     And, you know, ultimately, the law firms are going to start doing that at their [peril].

[........]

THE COURT: ...And I'm not trying to crucify Mr. Huffman just because he happens to be the guy that I hauled in here today, but the upshot of it is the bond was not posted. How much was the amount of the final judgment?

MS KHAN: Judge, if I may look in the file?

MS HILL: [$]207,238.72

THE COURT: Did the plaintiff acquire title [to Mr.Eslava's house] at [the foreclosure ] sale?

MS. HILL: Yes, your Honor.

THE COURT: What's the status of the property? Does anybody know?

MS. KAHN: Your Honor, Sheleen Khan for the defendant.
The defendant is paying on direct debit from his account every month. This will be his fifth payment under the HAMP program, your Honor.

THE COURT: Okay. I think as a sanction what would be appropriate is to direct HSBC, who failed to comply with the Court's order, the only -- there's nobody here from HSBC to offer any --

MS. HILL: Well, Mr. Huffman is here on behalf of HSBC today, as well.

THE COURT: But he doesn't know anything about the loss mitigation status. I just asked him.

MS. HILL: It's our understanding in this case that it is still under loss mitigation, it is being reviewed by HAMP for permanent modification.

THE COURT: Mr. Huffman, please rais your right hand.

(Thereupon, William Ward Huffman, III Esq. was duly sworn by the Court.)

THE COURT: What's your name?

MR. HUFFMAN: Bill Huffman.

THE COURT: What was the loss mitigation status on March 4, 2010?

MR. HUFFMAN: It was on hold for --

THE COURT: Tell me what was going on. How much had the defendant paid in? Had the defendant made any HAMP payments? Was the defendant formally enrolled in a HAMP program? Was the defendant in a HAMP trial period for HAMP?

MR. HUFFMAN: I knew the defendant was in a trial period for HAMP.

THE COURT: When was the defendant put into a trial period for HAMP?

MR. HUFFMAN: My file went on hold November 6 of 2009, so I knew they had been in the trial period since that time. I didn't know the exact date.

THE COURT: December what?

MR. HUFFMAN: It was November 6, I believe, 2009.

THE COURT: What was the date of the final judgment? December 9, 2009.

MR. HUFFMAN: The hearing was, I believe, November 5 and the judgment was signed December 9.

THE COURT: So you have a final judgment hearing on November 5 and the file went on hold November 6?

MR. HUFFMAN: Correct.

THE COURT: When was the file HAMP approved?

MR. HUFFMAN: It hasn't been fully approved at this time.

THE COURT: When was the file HAMP approved for trial modification?

MR. HUFFMAN: From my knowledge, it was November 6.

THE COURT: But I'm not asking you about your knowledge. Because you're here to testify on behalf of your client.

MR. HUFFMAN: Okay.

THE COURT: So on behalf of HSBC Bank USA, NA as Trustees for Nomura Asset Acceptance Corporation, Mortgage Pass-through Certificates Series 2006-ARI, when was Mr. Eslava's HAMP documentation accepted?

MR. HUFFMAN: I don't have -- I didn't see the doc to see when he actually signed the preliminary mods. I don't know the exact date. I just know that I was notified on November 6 to place my file on hold.

THE COURT: Mr. Huffman, respectfully, can't answer the questions I have because --
I'm going to sanction the bank. I'm not going to sanction Mr. Huffman. I could because I think Mr. Hoffman's conduct was contemptuous of a court order. But I'm also keenly aware that a comtempt finding from a judge has ramifications throughout the rest fo a laywer's career, and I'm really trying to avoid that.
     What I'm trying to give is, for lawyers that handle these cases, a wake-up call to say this is your life, this is your career on the hook and you guys better wake up and smell the coffee.
     But he cannot answer the questions for me to tell me the nature of the contempt.
Why wasn't a bond posted in this case pursuant to the court order?

MR. HUFFMAN: When I saw the order from March 4, I kind of read it --

THE COURT: Why wasn't the order -- the bond was ordered posted -- when did I order the bond? March 4. Okay.
Why wasn't a bond posted by April 4?

MR. HUFFMAN: When I saw the language, I thought it had two options, either post the bond by April 4 or have the case dismissed. Because our file was still on hold April 4, I just chose to allow the case to be dismissed.
     Instead of posting the bond, I though that was an option I had. I thought it would be in the best interest of all parties. I didn't want to incur any more fees for the defendant in this case by moving the case forward.

THE COURT: Okay. Then as a sanction, the Court will follow the path chosen by Mr. Huffman. I will dismiss the case. I will dismiss the case with prejudice.
The note, which was canceled by this Court pursuant to a final judgment is null and void.    
     Mr. Eslava is relieved of the debt.

     The title shall be conveyed back to Mr. Eslava by the bank -- by the trust -- as the legal liability for the note no longer exists.
     The basis for this sanction is the contemptuous noncompliance with the Court's order to post the bond.
     Should, however, any claim ever be pursued against Mr. Eslava on the note which was the subject of this case, since the note was lost, HSBC Bank USA, NA, as Trustee for Nomura Asset Acceptance Corporation, Mortage Pass-through Certificates Series 2006-ARI shall jointly and liablely (sic) with Florida Default Law Group, PL, and any successor law firm, be responsible to hold harmless and indemnify Mr. Eslava from any liability should the orginal appear in the context of another case.

MS. HILL: Your Honor, if I may just briefly respond?
     I believe under the case law that in order to award sanctions, there has to be a finding of willfullness and bad faith on the part of Mr. Huffman.

THE COURT: No, this is on behalf of HSBC. I'm finding wilfulness because -- I'm not making Mr. Huffman responsible for the $207,238.72. I'm saying HSBC has been offered an opportunity to come and testify to this Court about why all this confusion erupted. They have given me Mr. Huffman. Mr. Huffman respectfully, can't answer very many of my questions in detail because all he knows is that the file was put on hold. It was put on hold the day after a final judgment was entered at the behest of the bank.
     Now, I would like to know why the bank came in here one day to get a final judgment and the next day to put a file on hold. But that's really a sideshow. Really the big question is why didn't they comply with the order of March 9? Why did they simply ignore it.
     And that answer is ["]we put the file on hold["]. That's a contemptuous answer. A bank does not have the authority or a trust does not have the authority to ignore a court order simploy because they are making business decisions on a file. And that's really where we are at.

MS. HILL: Respectfully, I understand, your Honor.
     In this case, Florida Default Law Group is taking responsibility for its actions. And I would respectfully submit that canceling the underlying indebtedness woudl not seem to fit the failure of Florida Default in this case on behalf of the bank in complying with the order. Florida Default is more than willing to stand before you and apologize.

THE COURT: No. No. No. This is way beyond -- you know, look, I don't want apologies. I want performance. I want responsible attorneys who meet the basic standards of knowing what the Sam Hill is going on in their files.
     I want acknowledgment that says, look, we understand that the court system is facing a massive number of foreclosures and we are not going to contribute to that burden by causing useless work by the Court.
     Which is really what I just got told.
What I got told is, Judge, the guy was already approved for HAMP by November 6, so the hearing on November 5, you really didn't need to do that.
     Because for every hearing that I do on these cases, the reason why I get this packet is I check service on every defendant, I look at the note, I make sure there's an endorsement. The fastest I can do one of these is about seven minutes. The slowest I can do it, if it's out of order, if it's disorganized, if there's things missing, which may well be the case in this case because the hearing was November 5 and the order wasn't entered until December, which means that there may have been missing items, it can take as much as 15 minutes or a half an hour. So the bank wasted my time on that.
     They wasted my time -- and I don't care about my time because I'm paid the enormously high sum of $144,000 to be here every day.
     But the second waste of time was then they come in and opposed the defendant's motion to cancel the sale. And we had a hearing and we talked about that. An I would imagine that took somewhere between 12 to 17 minutes, depending on how it went.
     And then they come in and walk in a motion to cancel the sale.
That's three useless, completely idiotic events. And if Florida Default wants to make HSBC whole in this, then that's between them and their carrier.
     But the bottom line is that's the sanction that the Court has ordered. Mortgage foreclosure is an quitable remedy. The plaintiff in this instance, whether it's through its own conduct -- because, frankly, I can't -- what Florida Default is telling me is we're just doing what they're telling us to do. They told us to put a file on hold.
     If this is how a bank is going to conduct its business, then the bank should be bearing the sanctions. Florida Default can cut whatever deal it wants to cut with them, but at the end of the day, the bank is responsible for this.
     Thank You.

MS. HILL: Thank you, your Honor.

THE COURT: I need the transcript ordered, please, and a simple order attached that adopts the transcript as my order, because I think that's going to be the cleanest way to do that. And I will direct that the transfer of title occur within 30 days.

Then the attorney for the defense realizes this is her moment.

MS. KAHN: Your Honor, if I may add, I have an affidavit in support of fees, attorneys fees, reasonable fees.

THE COURT: How much?

MS. KAHN: [$]1,222, your Honor. 6.11 hours.

To the surprise of no one, Ms. Kahn gets her money.

Fade to black.

Fin.

Hit Them Where Their Heart Would Be, If They Had One

(Via Naked Capitalism)

Short version:

• Foreclosure mill moves against homeowner.
• Foreclosure mill is forced to admit to a bankruptcy judge that they are moving to foreclose, sans paperwork.
• Bankruptcy judge puts her foot in said mill's ass so hard, they're spitting up shoe leather.

A thing of beauty from any angle, but really, read the whole account. I'm focusing on the 2010 case before Judge Bailey, but a more recent case is what Yves is trying to track down. As in Have judges finally starting giving out free houses to address clear instances of foreclosure fraud?

Stay tuned.

AT&T is Not A Person...

...which would explain their consistent inhumanity to man.

Point being, a unanimous Supreme Court ruled today in FCC v. AT&T (No. 09-1279) that corporations do not have personal privacy rights.

That anything should slow the legal march towards corporate personhood is more than a little stunning, but here's the kicker: The Chief Justice even served up a bit of judicial snark:

The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

Zing!

(H/t Mom)

The Court is Not Amused

Knowing my affinity for judicial snark - E sent me a link to the U of Washington's Law School's legal humor page.

They summarize a long list of opinions where judges have departed from staid legal prose in favor of bringing the funny.

I'm primarily interested in the snark, so here's US District Judge Kent laying the smack down in Bradshaw v. Unity Marine Corporation, Inc., 147 F. Supp. 2d 668.

Briefly, the case involved a sailor suing a dockowner for injuries on the job. Two attorneys who have offered legal arguments that were wanting in both substance and format.

Let's join the opinion already in progress:

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact--complete with hats, handshakes and cryptic words--to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins....

Defendant begins the descent into Alice's Wonderland by submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims. See Gonzales v. Wyatt, 157 F.3d 1016, 1021 n. 1 (5th Cir.1998). That is all well and good--the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court's water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie. Finally, Defendant does not even provide a cite to its desired Texas limitation statute. [FN2] A more bumbling approach is difficult to conceive--but wait folks, There's More!

Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although Plaintiff does at least cite the federal limitations provision applicable to maritime tort claims. See 46 U.S.C. § 763a. Naturally, Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff "cites" to a single case from the Fourth Circuit. Plaintiff's citation, however, points to a nonexistent Volume "1886" of the Federal Reporter *671 Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court's dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters (in this case an alleged defamation committed by the controversial G. Gordon Liddy aboard a cruise ship at sea) require the application of general maritime rather than state tort law. See Wells v. Liddy, 186 F.3d 505, 524 (4th Cir.1999) (What the ...)?! The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). And though the Court often gives great heed to dicta from courts as far flung as those of Manitoba, it finds this case unpersuasive. There is nothing in Plaintiff's cited case about ingress or egress between a vessel and a dock, although counsel must have been thinking that Mr. Liddy must have had both ingress and egress from the cruise ship at some docking facility, before uttering his fateful words.

(and so on...)

Ahh, what fun...

Are there more like you at home?

Felix Salmon tags Judge Jeffrey Spinner, of Suffolk County Supreme Court, as his hero of the day.

And no wonder.

The case involves IndyMac (which, you'll recall, exists only in memory) going after a homeowner in such a disgraceful way that the judge not only rejects their claim, not only dismisses any IndyMac claim on the house, but buries them with a motherload of judicial snark.

Here's just a sampling:

Regrettably, the Court has been unable to find even so much as a scintilla of good faith on the part of Plaintiff. Plaintiff comes before this Court with unclean hands yet has the insufferable temerity to demand equitable relief against Defendant

Ahhh... poetry.

The smackdown of Connie Rhodes

It's been awhile since I've added to the collection of judicial snark. Thankfully, Rhodes v MacDonald has arrived to fill the void.

This case owes its fifteen minutes to being connected to the insanity that is the birther movement (the bwanky of choice among nostalgic southern conservatives).

The plaintiff is a commissioned officer in the US Army - a Captain for God's sake - who is suing to prevent her deployment to Iraq on the grounds that:

...her deployment orders are unconstitutional and unenforceable because President Barack Obama is not constitutionally eligible to act as Commander in Chief of the United States armed forces.

I want to believe that Cpt. Rhodes is merely in the thrall of her counsel - the incomparably insane Orly Taitz (poster child for both the birther movement and humanity's need for critical thinking skills). Because if Cpt. Rhodes actually believes what she is shoveling and managed to rise to the rank of Captain...

Well... heaven help the military is all I can say.

Anyways, the court takes full opportunity to pulverize the plaintiff's case - singling out Taitz's extravagant use of the legal system to sell her brand of crazy.

The quotes that are making the rounds in all the usual places focus on Ms. Taitz, so I won't bother with them. Besides, picking on her is like kicking a deranged panhandler.

No, the snark I'm currently savoring was aimed at Cpt. Rhodes - who really ought to have known better. Here's US District Judge Land's dénouement (emphasis mine):

Any interference with a deployment order injects the Court directly into the internal affairs of the military. This type of interference has serious implications.

For example, it would encourage other soldiers who are not satisfied with their deployment destination to seek review in the courts. It also will have an adverse effect on other soldiers who honorably perform their duties. Presumably, some other military doctor, who does not resort to frivolous litigation to question the President’s legitimacy as Commander in Chief, would be required to go to Iraq in Plaintiff’s place.

Similarly, the doctor who Plaintiff is being sent to relieve and who has likely been there for months would be delayed in receiving his well deserved leave because his replacement seeks special treatment due to her political views or reservations about being placed in harm’s way.

Yes, captain. The court is suggesting you are dishonorable, a coward, and a waste of their time.

That's gotta sting.

Not to mention she still has to go to Iraq as a known weasle/dispsh!t. You know that's going to impress her new CO.

I'm thinking whoever currently holds the army's crappiest job in Iraq is about to get a reliever.

Late edit: Cpt. Rhodes has utterly renounced her case and her attorney.
Odder still, her statement contains this odd line "I simply wanted to verify the lawfulness of my orders."

Makes you wonder what chain of events led to this case going forward in the first place.

Spot the snark

The SCOTUS just ruled on Ricci v. DeStefano, the case famous for being about white firefighters who feel that they were subject to racial discrimination.

Kennedy joined with the right wing of the court to validate their claim.

Justice Ginsburg's read her dissent aloud in court.

I'm wondering if the following line from her dissent was delivered as snarkily as it sounds:

The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion.

I certainly hope so.

Late edit: in her oral delivery of her dissent, Justice Ginsburg used the word "empathy" in place of sympathy. Double snark!

(Via the NYT)

Judicial snark: Telco immunity version

(H/t to emptywheel)

In Re: NSA telecommunications records litigation

The judge's option cites the plaintiff's argument (and question):

Do defendants mean to assert their theory of unfettered presidential power over matters of national security - the very theory plaintiffs seek to challenge in this case - as a basis for disregarding this court’s FISA preemption ruling and defying the current access proceedings under section 1806(f)? So it seems.

To which Judge Walker adds:

So it seems to the court also.

Snark!

And he goes on:

It appears from defendants’ response to plaintiffs’ motion that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act.

[snip]

For the reasons stated herein, defendants’ motion to dismiss or, in the alternative, for summary judgment (Doc #475/49), is DENIED.

Not nearly snarky enough, for my tastes - but snark nonetheless.

Give me your Uighurs

Balkinization covers the latest chapter in our disgraceful treatment of men who did nothing against us - yet have been confined to Gitmo for years: the Uighurs.

For more than six years, the United States has detained seventeen Chinese citizens of Uighur heritage at the Guantanamo Bay Naval base. Following the ground-breaking decision of the U.S. Court of Appeals for the District of Columbia Circuit in Parhat, which I discussed here, the U.S. government finally conceded that the Uighurs are not enemy combatants, and that therefore Congress has not authorized their indefinite detention. The Uighur detainees had nothing to do with the attacks of 9/11. There is no evidence that they ever participated in, or planned, or even supported, any hostile action against the United States or its allies. They are not part of al Qaeda or the Taliban, or any other nation or organization that "planned, authorized, committed, or aided" the 9/11 attacks. They have never engaged in any hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).

And yet the United States insists that it can continue their detention at GTMO indefinitely, because it cannot send them back to China (where they likely would be tortured) and has been unable to find another nation willing to take them in.

Today Judge Ricardo Urbina ordered that the government must permit the 17 Uighur detainees to be released into the United States -- with conditions that the court will specify next week -- and that the transfer out of military detention must occur by this coming Friday morning.

Given the track record of the curent administration - you wonder what kind of novel legal premise the administration will find for refusing to comply with this order.

I would hope that this decision gives them no option but compliance, but history has shown that when these guys are painted into a corner, they just burn down the house.

Late edit: Looks like the judge was similarly skeptical of the administration's good faith, and breaks out the snark (emphasis mine):

...this suggestion that if this court mandates [the release of the Uighurs] and the Court of Appeals approves it and these individuals are brought into the United States by virtue of the Court's directives, that they may be descended upon by I.C.E. officials, arrested and taken into custody, that's not how the three branches of government work together. That is not how things work.

That would be inappropriate to even suggest that at this point one branch of government makes a firm decision on the legitimacy of someone's presence in the country and another branch goes out and scurries to get these individuals now present by virtue of the Court's directives arrested. I assume that won't happen. I certainly wouldn't take it kindly.

Ahhh, savor the snark....

And then later - after the judge orders their release into the United States:

...the hearing would be on conditions. A representative of Homeland Security should be present. I do not expect that these Uighurs will be molested or bothered by any member of the United States Government. I'm a federal judge, I've issued an order, and what it says it says and what it implies, it implies, and that's comity among the branches. Nothing will happen to these people until Thursday when this hearing convenes.

A representative of Homeland Security will be present and that individual at that time, through counsel, if necessary, can state its position and lay out its view on what the necessities of the situation are, legal or -- legally or otherwise, but nothing is to bother these people until I see them on Thursday. No one is to bother these people until I see them on Thursday, and they are all to be present here in this courtroom.

 As in, I don't trust you guys any further than I can throw you - and my arms are tired.

Later edit: Well, that didn't take long. The Court of Appeals has blocked the release of the Uighurs.

Quoting CNN:

In its emergency motion, the Justice Department said it wanted a ruling on the emergency stay by the end of Wednesday so it would have time to rush a further appeal to the U.S. Supreme Court on Thursday if necessary.

Lame duck or no - this crew hasn't lost a step.

Bates flirts with snark

(H/t Emptywheel)

D.C. Judge Bates rejected the administration's request for a stay of his order (telling Harriet Miers and Joshua Bolten comply with House subpoenas).

He doesn't quite rise up to full blown snark, but there is a palpable sense of exasperation in his tone:

The Executive’s argument boils down to a claim that a stay is appropriate because the underlying issue is important. But that is beside the point and does not demonstrate a likelihood of success on the merits. Simply calling an issue important -- primarily because it involves the relationship of the political branches -- does not transform the Executive’s weak arguments into a likelihood of success or a substantial appellate issue.

Still, good vintage though.

There is no appeal to an order that is not final - so it will be interesting to see what kind of brinksmanship ensues.  Could be an interesting windout.

Senatorial snark

Not quite as refined as judicial snark, but I'll take what I can get.

Sen. Leahy decided to jump on yesterday's ruling that the White House's claim of absolute immunity is... well, crap.

You can hear the Senator's grin coming right off your screen. Give it a read.

(H/t Emptywheel)

Late edit:
The House via Rep. Conyers, joins in on the fun. Double your snark!

Parhat v. Gates: Judicial snark - cited by name!!

The first judicial review of a detainee's classification as an enemy combatant, Parhat v. Gates (No. 06-1397 D.C. Circuit) is now out for public review. Opinion in PDF

As is well known - they ruled against the government. Here's a nice summary of why:

To survive review under the Detainee Treatment Act, a Tribunal’s determination of a detainee’s status must be based on evidence that both the Tribunal and the court can assess for reliability. Because the evidence the government submitted to Parhat’s Tribunal did not permit the Tribunal to make the necessary assessment, and because the record on review does not permit this court to do so, we cannot find that the government’s designation of Parhat as an enemy combatant is supported by a “preponderance of the evidence” and “was consistent with the standards and procedures” established by the Secretary of Defense, as required by the Act.

In other words: The DTA requires us to review the evidence's reliability. We have not been allowed to review this evidence - therefore we cannot certify that Parhat is an enemy combatant under the DTA.

Government, meet your own petard.

In case anyone in the executive doesn't get what this is about, the court flirts with judicial snark and spells it out:

To affirm the Tribunal’s determination under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion.

If people are going to be locked up over someone's say so - there should probably be some kind of meaningful, independent review.

That the very first case that gets reviewed (even under the restricted review under the DTA) gets swatted down unanimously by a mostly conservative court speaks - or rather screams - volumes about how flawed a process this administration has created.

And then....? Oh joy of joys! oh, happy anticipation!

-then the Court reaches for the snark:

...the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true.

With the administration's nose firmly in their grip, they proceed to squeeze...

...See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876)(“I have said it thrice: What I tell you three times is true.”)

You can almost hear the honking sound.

Too late to blink

The Bush administration's disastrous policy towards persons it refers to as detainees appears to be (at long last) coming home to roost.

I'd thought this would have happened earlier with the Padilla case. Padilla, you'll remember was the U.S. citizen imprisoned without having been convicted, tried, or even charged. The Padilla case was a perfect vehicle to deliver a final rebuke of the detainee policy, but (right before a filing deadline) the government blinked and gave Padilla a trial.

Well, as it happens, there was another detainee whose appeal has been winding its way up the ladder - a legal alien seized on U.S. soil and held for four years. His name is Ali al-Marri, and while his case isn't quite the same as Padilla's, his case came to the 4th U.S. Circuit and he won.

al-Marri's ultimate guilt or innocence I'd leave up to whatever judical body will get to make that ruling, but the principle the court stuck to (and one I heartily applaud) is that of Habeus Corpus. The Executive can lock you up, but there will be a day of reckoning for their decision - and they will have to prove that what they have done is justfied.

The Bush administration has been saying otherwise - that the Authorization for the Use of Force gave them sweeping new powers to detain people without trial.

Bupkis, says the court. He gets a trial.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.

There's also a nice bit of judical snark (emphasis added):

Furthermore, the Government’s treatment of al-Marri suggests that, despite its litigation posture, it does not actually believe that the [Combatant Status Review Tribunal] process in the [Detainee Treatment Act] and [Military Commissions Act] applies to al-Marri. In the four years since the President ordered al-Marri detained as an enemy combatant, the Government has completed CSRTs for each of the more than five hundred detainees held at Guantanamo Bay. Yet it was not until November 13, 2006, the very day the Government filed its motion to dismiss the case at hand, that the Government even suggested that al-Marri might be given a CSRT. At that time the Government proffered a memorandum from Deputy Secretary of Defense Gordon England directing that al-Marri be provided a CSRT "upon dismissal" of this case. This memorandum is too little too late.

Ooo-rah. Now here's hoping the Supremes back this ruling up with some gusto.

Judicial snark: a rare and exquisite vintage

We are used to seeing judges maintain an civility and professionalism, even when they are faced with people most of us would just smack up side the head.

Every once in awhile, they are provoked beyond their ability to restrain themselves. They dish out the snark, in their highbrow way. Its a beautiful thing.

My favorite has got to be Padilla v. Hanft, where Judge Floyd responds to the government's position in words that practically singe the paper. He spells out the government's assertion (namely, that Padilla being arrested in Chicago is equivalent to Mr Hamdan's being captured on the battlefield - and therefore the government can detain him as an enemy combatant) and then deliveres this beauty:

The cogency of this argument eludes the Court.

A recent addition to my top five would have to be the recent response of Judge Walton to the amicus brief filed by Robert Bork and Alan "I love torture" Dershowitz. Bork and Torture-boy (as well as a phalanx of high priced legal talent) are advising the court that they think that the appointment of Patrick Fitzgerald might not be constitutional, and perhaps the judge might throw the whole case out.

It would be very unusual for Judge Walton to refuse the amicus, so he graciously accepts it - in writing.

With a footnote that has so much sarcasm packed into it, it is positively radioactive (emphasis added):

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant.

The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse.

The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Translation: "Thank you for playing. Don't let my foot hit you in the ass on the way out of my courtroom."