Monday, November 30, 2009

A judge judging himself: judicial recusal

Judges are in high demand for continuing education seminars. Astute conference planners will often schedule a judges' panel at the end of the day to insure full attendance. If the judge is outspoken, or at least colorful, so much the better. However, what happens when the outspoken judge displays displeasure with your client's industry and you have a similar matter pending before him? If you file a motion for recusal, you could find yourself in the interesting position of having the judge judge himself. That is what happened in the case of In re Wilborn, 401 B.R. 848 (Bankr. S.D. Tex. 2009) in which Wells Fargo sought to recuse Judge Jeff Bohm over comments he made at a CLE conference. After a lengthy analysis, Judge Bohm concluded that the movant had not met his burden and that he had "an affirmative duty not to recuse himself."

The Seminars

At issue were presentations made at two conferences, the State Bar of Texas Advanced Consumer Bankruptcy Conference and one held at the LSU Law School. The motion was based on written materials and oral statements made at the two conferences. However, it turns out that Judge Bohm was not the author of written materials for either forum. In the first case, Judge Bohm was a substitute for Judge Marvin Isgur, who authored in the materials. In the second case, Judge Elizabeth Wall Magner presented a powerpoint which she prepared after which Judge Bohm spoke.

In his Dallas discussion, Judge Bohm began with a rather straightforward discussion of construction of Bankruptcy Rule 2016 and 11 U.S.C. Sec. 1322(b)(2) as they relate to post-petition fees and charges assessed by mortgage creditors. The positions articulated by Judge Bohm, namely, that Rule 2016 applies to mortgageholder fees, that Sec. 1322(b)(2) does not preclude review of the reasonableness of fees and that Sec. 105 allows redress for debtors charged unreasonable fees were not anything that he hadn't ruled previously.

However, the judge did not stop there. He proceeded to lecture both debtor's lawyers and creditors about practices in the industry. Speaking to debtor's lawyers, he said "if you are zealously representing your client, then you want to focus like a laser beam, it seems to me, on what some creditors are doing in terms of charging your clients after they have filed a petition." He also suggested that debtor's lawyers to write a monthly letter to the creditors' attorney stating:

Dear attorney for home lender in chapter 13, I am writing you this letter to inquire as to whether your client is charging any fees and expenses now that my client has filed for bankruptcy. Please advise. Because if I find out that you are and you haven't disclosed it, I'm going to scream bloody murder in bankruptcy court.

I think you ought to send that letter once every month. that might get the attention of some creditors' lawyers. And it might--and I say might get the attention of some lenders.
401 B.R. at 855.

Judge Bohm was just warming up. In closing, he got on his soapbox and articulated the following:

Why do I cite these newspapers to you? Freddie Mac, Fannie Mae, AIG and the Lehman Brothers. I don't think I cited Washington Mutual, but I'll cite them. What are they all? They're all creditors. I used to represent creditors. I used to be a banker before I went to law school. Well, I am finding since I've been on the bench on the creditors' side is that we've got a culture going of arrogance and hubris. We have forgotten how to be thorough and how to pay attention to detail, and it's coming home to roost in spades.

I mean, think about it folks, Freddie Mac and Fannie Mae, FDR would be turning over in his grave if he could see those institutions today. The directors, the dispute that's going on right now is, are we going to pay the two presidents of these institutions golden parachutes of millions of millions of dollars? This, for while they were head of their ships, ran aground.

We've got AIG going belly up. By the way, Freddie Mac and Fannie Mae, the institutions that are about buying loans portfolios for loans that never should have been made. That's why I say we've got--we have lost the need--the paying attention to detail.

* * *

I'm policing my docket. You're going to get more opinions, at least from me, and I assume the true--same will be true for at least Judge Isgur and Judge Magner. We want to see the I's dotted and T's crossed, and if they're not, then as I've said, 105 sanctions will be--will be used.

I hate to end on that kind of note, but given where we are with a lot of the institutions that I just cited, I don't know how else to express my frustration with some--not all, of the mortgage lenders in my court. I wish to emphasize that I--I think highly of most, virtually all, of the attorneys who appear in my court these days, so I don't want you to leave this seminar thinking that I am upset with you, but do please convey to your clients tht I feel very strongly that the rules and the statutes need to be complied with.
401 B.R. at 857-58.

The Dallas conference did not single out Wells Fargo. However, one slide in Judge Magner's powerpoint did:

Wells Fargo manages 7.7 million loans. If only one $15 fee were charged per year on each loan, its revenue would be $115 million.
401 B.R. at 859.

Meanwhile, Judge Bohm was presiding over a class action sought brought against Wells Fargo alleging that it charged improper fees in chapter 13 bankruptcy cases. Judge Bohm's candor apparently made Wells Fargo feel that he had targeted a bulls eye on them. They filed a motion to recuse. However, as noted by Judge Bohm, a motion to recuse "is committed to the discretion of the targeted judge." This leaves the judge in the unusual position of sitting as trier of fact with regard to his own impartiality.

The Ruling

In his ruling, Judge Bohm discussed several legal principles applicable to disqualification:

1) Under 28 U.S.C. Sec. 455(a), a judge "shall disqualify himself in any proceeding in which he is presiding in which his impartiality might reasonably be questioned."

2) The movant must establish that a judge is not qualified by clear and convincing evidence.

3) "(A) judge's comment is disqualifying only if it connotes . . . a closed mind on the merits of the case."

4) Recusal based on bias may be based on "a danger that the judge will rely on an extrajudicial source for his rulings" or "where the judge displays such a high degree of favoritism or antagonism as to make fair judgment impossible."

These principles appear to be in conflict. The statute speaks in terms of situations in which "his impartiality might reasonably be questioned." This language, particularly in its use of the words "might" and "reasonably" suggests a low standard, one in which the mere appearance of partiality is sufficient to bring about disqualification. However, the requirement of proof by clear and convincing evidence (which must be established to the judge being questioned) and the requirement of a closed mind on the particular case set a very high bar. Indeed, it might be suggested that a motion for recusal should never be necessary, since the conduct demanding recusal should be so obvious to the judge that he should have voluntarily removed himself prior to any motion being filed.

Judge Bohm continued with a very thorough analysis of what comments made outside of the courtroom would merit recusal. Generally, comments made to legal education seminars on general legal issues are permissible, while statements to a newspaper about the merits of a pending case are not. Since Judge Bohm did not single out Wells Fargo or talk about any specific pending case, much less the Wellborn v. Wells Fargo case, recusal was not appropriate.

How Educational Do You Want Your CLE To Be?

Given that recusal requests are addressed to the judge sought to be recused and that judges are given wide latitude, the result in this case is not particularly surprising. The larger question is, should judges be speaking so freely about issues that will come up in their courtrooms? Should they be so blunt, including giving advice to one side about what they should be doing to zealously represent their clients?

With one limited exception, I say preach on Brother Bohm. I say this as an attorney who is more likely to appear in front of His Honor as a creditors' lawyer than representing a debtor. In fact, I fully expect that I will appear in front of him on one of his hot button issues. It is just a question of when.

When I appear in front of a judge, I want to know as much as possible about his thinking. I am going to study his rulings and talk to attorneys who have appeared in front of him. If I'm going to listen to him speak at a conference, I don't want to hear namby-pamby platitudes. I want to hear the good stuff. I want to hear the good stuff because it is useful intelligence.

On the other hand, it does give me pause when the judge starts dictating letters for debtor's lawyers to use, especially when the debtor's lawyer is invited to scream bloody murder to the bankruptcy court. It almost comes off as a wink, wink, nudge, nudge, follow this procedure and I will sock it to the mortgage company. The issue of disclosure of post-petition fees and charges is a legitimate one and one which is being addressed by amended Rule 2016. It is a bit unseemly for the judge to be encouraging lawyers to engage in guerilla tactics rather than looking for a systemic response. However, beyond that, the judge did not talk about cases currently pending before him or call out lawyers he was unhappy with. Indeed, he went so far as to express his respect for the bar.

On balance, the benefit of getting inside the judge's head is worth more to me than the risk that he will engage in cheerleading for the other side. I won't always agree with Judge Bohm, but I will always find him passionate and informative.

Friday, November 27, 2009

Whom do you trust when interpreting a trust?

Update: On June 15, 2011, the Fifth Circuit entered a ruling finding that the Trustee was entitled to 50% of the corpus of the trust. Roberts v. McConnell, No. 10-50462 (5th Cir. 6/15/11). You can read the Fifth Circuit opinion here.

Trusts are interesting things. They are a way to transfer property without completely letting go. One reason to transfer property in trust is to see that the beneficiary receives the benefit of the trust property instead of his creditors. Of course, the bankruptcy trustee has just the opposite incentive. The trustee would like to bust the trust and distribute the proceeds to creditors. When trust provisions are unclear, it can make for an interesting exercise as Judge Craig Gargotta discovered in Roberts v. McConnell, Adv. No. 09-1011 (Bankr. W.D. Tex. 11/3/09).

In this case, Mary McConnell set up a trust for her grandson. The trust allowed the beneficiary to withdraw funds from the trust according to a graduated schedule based on the beneficiary's age, but only if "the Settlor of this Trust (or each Settlor, if more than one) is then deceased." The grandmother passed away in September 1997. At that time, the grandson could have withdrawn 33% of the trust. However, several months later, his mother made a contribution to the trust which she repeated during six additional years.

The debtor filed for bankruptcy in 2004. At that time, he was 37 years old. At that time, he would have been entitled to one-half of the trust if the Settlor (or Settlors if more than one) were deceased. In 2009, the bankruptcy trustee brought suit against the trustee of the trust seeking to recover the entire corpus for the benefit of the bankruptcy estate. The trustee of the trust moved to dismiss.

The issues that the court faced were:

1) Was the term settlor limited to the person who initially created the trust or did it extend to the mother as well?
2) If the mother was deemed to be a settlor, could the trustee at least recover the funds which the debtor was entitled to withdraw for a brief period prior to his mother's initial contribution?

Under the Texas Property Code, the term settlor is defined as the person who creates the trust. However, the Trust defined settlor as anyone who contributed property to the trust. Under the Texas Property Code, the specific language of the trust controlled over the definition of settlor contained within the Property Code. The parenthetical language (or each Settlor if more than one) suggested that there could be additional settlors. Thus, the trustee could not recover the full amount of the trust, since there was still a settlor alive.

However, this gave rise to a second question: could the mother, by becoming a settlor, unvest the debtor's right to make a withdrawal? Recall that when the debtor's grandmother passed away, she was the sole settlor of the trust and he could withdraw one-third of the value of the trust at that time. Had bankruptcy not intervened, one could imagine the unpleasant conversation which might transpire when the son learned that his legacy was now out of reach due to this mother's decision to add to the trust. In this case, the bankruptcy trustee was just making the argument which the son would likely have made, namely, it's not fair.

In trying to determine the intent of the settlor, the court found it significant that the trust imposed two different requirements for withdrawing funds from the trust: reaching a specified age and the prior death of all settlors. The court found an intent for both benchmarks to be present at any time that a withdrawal was requested.

The court's result seems to be a natural reading of the language of the trust. However, it is not hard to imagine how these provisions could be used to reach a twisted result. Imagine that the grandmother had two grandsons, one of whom always wrote his thank you notes timely and never forgot his grandmother's birthday. The other grandson was an ungracious lout who stole spare change from his grandmother's purse and never had a kind word, let alone a thank you. The grandmother decides to create a trust for one of the grandsons but not the other. The grandmother passes on and the ungrateful grandchild learns that he has been passed over. Upon learning of the trust provision, he contributes $10 to his brother's trust so that he can never access the trust funds. In this scenario, could the ungrateful grandson keep his favored brother from ever accessing the trust? Would the likelihood that the sinister grandson would encounter an unfortunate accident go up? These would make for good law school exam questions. Fortunately Judge Gargotta didn't have to reach these questions. (Congratulations to new law clerk Sarah Darnell on her first opinion).

Update #1: Eric Taube advises that this opinion is being appealed.

Update #2: Alert grammarians Pat Autry and Fay Gillham pointed out that my headline should have read "Whom do you trust when interpreting a trust?" instead of the original "Who do you trust when interpreting a trust?" I did some research and found out that they were correct.

According to wikiHow, who is used as the subject of a sentence or phrase while whom is used as the object of a verb. This still left me scratching my head, so I read further on. If the answer to the question is he, then who is correct, while if the answer to the question is him, then it is whom. Thus, the answer to the question would be "I trust him to interpret a trust" indicating that whom was the correct way to begin the sentence.

Wednesday, November 25, 2009

Judge Seeks Creditors' Attention With Discharge Violation Ruling

A Fort Worth bankruptcy judge sent an unmistakable message to Bank of America and a collection agency in a recent opinion on violation of the discharge: clean up your procedures or pay up. McClure v. Bank of America, Adv. No. 08-4000 (Bankr. N.D. Tex. 11/23/09).

What Happened

The debtors owned a business named Qualico. Like many entrepreneurs, they obtained financing through credit card accounts, which they personally guaranteed. When the business failed, both the company and its owners ended up in chapter 7. The McClures listed several debts owed to Bank of America in their schedules.

Shortly after the McClures received their personal discharge, Bank of America referred two of their accounts to a collection agency. Bank of America did not dispute knowing about the discharge and the opinion is silent as to any explanation for why discharged debts were referred to a collection agency. To compound the confusion, two different Bank of America debts were referred to two different collectors within the same firm.

Upon receiving the accounts, the collection agency, CFG, sought to do a bankruptcy scrub on the accounts. However, the information received from Bank of America was not very helpful. Placed in the social security number field was the tax ID number for the corporation. A search under this number did not turn up the corporation's bankruptcy and no search was done on the individual.

At the fatal moment before the first collection call was placed, Bank of America knew about the discharge, but the collection agency was blissfully ignorant.

The first collector was merely trying to collect upon the corporate account and was not aware that there was a guaranty. However, that did not stop him from telling the individual debtor that someone was headed to his house and that they would be filing suit against him that day. When the collector stopped to take a breath, the terrified debtor informed him of his bankruptcy, which was duly entered into the system. This stopped collection on account #1. However, it did not provide notice to the collector on account #2. He sent the debtor a letter and made a phone call, which no doubt unnerved the debtor who had already provided the agency with his bankruptcy information.

Who Violated the Discharge?

All of the collection activity which took place violated the discharge. However, to hold a creditor liable for contempt, there must be actual notice of the order being violated. Thus, under these facts, who committed a knowing violation: BOA, CFG, Collector #1 and/or Collector #2? Liability as to BOA was easy. They admitted knowledge of the discharge at the time that they referred the debts out for collection. Collector #1 did not know about the discharge at the time he made his threatening call. Neither did Collector #2. However, the collection agency committed a knowing violation when Collector #2 contacted the debtor even though the actual collector did not.

Here's how the court reached this conclusion. The court did not impute knowledge from the principal to the agent. Additionally, the court did not hold the collection agency liable for negligently performing the bankruptcy scrub. However, once Collector #1 received notice of the discharge, that put the agency on notice. Although Collector #2 could not be held liable for information which never reached him, the agency could be held liable for his unknowing actions. Thus, you have the paradox that neither collector knew about the discharge at the time he undertook the collection actions. However, once the entity knew about the discharge, it could not allow its employee to remain in the dark.


Damages are always a difficult issue in these cases. While attorney's fees are available, they are poor compensation to the debtor. Mental anguish is hard to prove. In this case, the debtor's doctor testified, but the court found the evidence to be inconclusive. (The court did, however, state that it did not "consider the line between being an aggressive agent and a bully to be so fine that CFG cannot service its clients without resort to such crude scare tactics"). However, the court did not stop there. It stated:

The McClures have, however, expended substantial time and effort in prosecuting this lawsuit. Without the willingness of aggrieved debtors to prosecute violations of the discharge injunction of section 524(a)(2), such violations would go unchecked by the court. The Code has as one of its underlying purposes providing a fresh start to a discharged debtor. (citation omitted). If violations of the discharge injunction go unpunished, creditors will lack the necessary incentive to avoid violating the law, and an underlying purpose of the Code will be undermined. In order to ensure that debtors are not hesitant to prosecute violations of the discharge injunction, they should be awarded actual damages to compensate them for the time and effort they have to expend in the process. In this case, the court awards the McClures $2,500.00 in actual damage for the time and effort they expended in proscuting this adversary proceeding, for which BOA and CFG will be jointly and severally liable.
Memorandum Opinion, pp. 12-13.

(The court also took pains to note that it had not been requested to assess damages under the Fair Debt Collection Practices Act and that such damages would not have been available in any event, since this was a business debt).

The Court also awarded $79,839.14 in attorney's fees. The defendants complained that the debtor's attorney was piling on. However, the court was quick to justify the large award, stating:

CFG and BOA questioned the high cost of attorney services based on want of harm to the McClures. First, the need to encourage enforcement of the discharge injunction counsels against too great parsimony in assessing fees. Second, the refusal of CFG to acknowledge error--and a pre-trial dispute between CFG and BOA over responsibility for the violation of the injunction--added to the cost of the attorneys. Had the two defendants accepted responsibility for their conduct early in this adversary proceeding, the cost of the McClures' counsel would have no doubt been much lower.
Memorandum Opinion, p. 13, n. 27.

However, the final relief awarded was the most interesting. The court awarded conditional sanctions payable to the registry of the court based on the defendants' apparent lack of concern with the law. The Court stated:

(T)he court finds that the actions of BOA and CFG in violating the discharge injunction were sufficiently egregious to warrant sanctions. By failing to adopt measures sufficient to prevent violations of the discharge injunction and then willfully violating the discharge injunction, BOA and CFG have demonstrated a lack of concern for the law. The injunction of section 524(a)(2) and that provided by section 362(a), which in the McClures' case the former replaced (citation omitted), are at the heart of bankruptcy protection. (citation omitted). It is only by reason of these provisions that the court is able to ensure debtors the interim protection promised by the filing of a petition and the true fresh start that a discharge is supposed to bring. To protect its own authority as well as to give debtors the relief Congress intended, a bankruptcy court must act promptly and firmly to stop conduct violative of section 362(a) or 524(a)(2) and to prevent future breach of those provisions. This is particularly important when, as is true of BOA and CFG, the entity violating the stay deals with millions of consumers, many of whom will be in bankruptcy cases; BOA's and CFG's procedures for ensuring compliance with the law must be seamless.

The court, therefore, concludes that it is both reasonable and necessary to sanction BOA and CFG in order to deter BOA and CFG from violating any discharge injunction in the future. See 11 U.S.C. Sec. 105(a).

The court hereby sanctions BOA in the amount of $100,000.00, payable to the registry of the court, and sanctions CFG in the amount of $50,000, also payable to the registry of the court. Each sanction will be suspended and need not be paid if, within 90 days of the entry of this memorandum opinion, by affidavit either the President or General Counsel of each company submits to the court new procedures his or her company has adopted to prevent future violations of any discharge injunction.
Memorandum Opinion, pp. 14-15.

The court's three-fold remedy addressed three different needs. First, the debtors received a small award to vindicate them for having to seek redress from the court. Debtors' counsel received a large award to compensate him for having to pursue the case. Judge Michael Lynn presides over large cases, such as Pilgrim's Pride, and is no doubt used to seeing large fee requests. When compared to the fees charged in mega-cases, the hard-working debtors attorneys' fees likely seemed quite reasonable. Finally, the court saved the largest award as an incentive to fix the problem. The court did not grant the debtor a windfall, but did not overlook the seriousness of the failure either. By ordering a payment to the registry of the court unless procedures were changed, the court took a stand on behalf of the integrity of the larger bankruptcy process and on behalf of other debtors who might be harmed in the future.

This opinion offers some practical advice to counsel defending parties accused of violating the discharge. If there is a clear-cut violation, as there was here, acknowledge liability promptly. The real battle will be over damages, which are difficult for the debtor to establish. A prompt offer of judgment may avoid a large award and an embarassing written opinion later. Further, when there has been a breakdown of procedures as happened here, the time to address those procedures is immediately. The opinion never answered the question of why Bank of America referred two discharged debts to a collection agency. The failure to answer this question may have informed the urgency of the court's insistence that "procedures for ensuring compliance with the law must be seamless."

Saturday, November 14, 2009

Debtor Gets Mortgage Claim Denied. Now What?

I am in New York for the Commercial Law League conference, so it is appropriate to blog about a case from the Southern District of New York. While the Southern District of New York is known for its multi-billion dollar cases, a recent case highlights a consumer issue faced by courts nationwide. In (Name Withheld by Request), Case No. 09-22261 (Bankr. S.D. N.Y. 9/29/09), the Debtor's lawyer became frustrated with inconsistent information received from a mortgage servicer and filed an objection to claim. The mortgage servicer's submissions raised more questions, leading to denial of the claim. However, the bigger question is what denial of the claim means for the debtor.

A Proof of Claim Walks Into A Bankruptcy

In this chapter 13 case, PHH Mortgage filed a proof of claim on the debtor’s mortgage. PHH stated that it was the secured creditor. The proof of claim attached the following documents:

(a) a one-page itemization;
(b) pages 9 through 16 of a document identified as New York--Single Family . . . Fannie Mae/Freddie Mac UNIFORM INSTRUMENT MERS;
(c) a 4 page Fixed/Adjustable Rate Rider; and
(d) 16 pages out of a 24 page mortgage showing MERS as mortgage holder and Mortgage World Bankers, Inc. as lender.

In response to an inquiry from the Debtor’s attorney, PHH stated that it was the servicer and that US Bank as trustee for a securitization trust was the actual creditor. This was the first problem. The person who filed the claim was not the holder of the claim, but the agent for an undislosed principal.

The Debtor objected to the claim, arguing that the servicer lacked standing to file the claim and that the proof of claim did not demonstrate a complete chain of title from the originator to the securitization trust.

The Creditor Digs Itself In Deeper

In response to the objection, PHH Mortgage filed an affirmation of counsel, an affidavit and a memorandum of law. These documents created more problems for the purported creditor. The affirmation of counsel attached an Assignment of Mortgage from MERS to US Bank. The document was executed by Tracy Johnson as Assistant Vice-President of MERS. (MERS is Mortgage Electronic Recording Service, which exists to serve as a nominee for mortgage holders and allow mortgages to be transferred without the necessity of a formal assignment. In other words, MERS acts as nominee of whoever holds the mortgage.). It also included a power of attorney authorizing PHH to act on behalf of US Bank. The second affidavit was signed by Tracy Johnson, this time as Assistant Vice-President of PHH.

The Memorandum of Law stated that:

The ownership of the Note and Mortgage were subsequently transferred to US Bank. An Assignment of Mortgage was not executed at the time of the transfer. PHH intends to submit documentation to show that US Bank now has the beneficial interest in the Note and Mortgage by virtue of the pre-existing transfer of this loan. In addition, the documentation will demonstrate that PHH is still authorized to file the Proof of Claim as the loan servicing agent for US Bank.
Memorandum, p. 3.

Unfortunately, PHH did not obtain the documentation. The following exchange took place at the hearing on the claims objection:

THE COURT: . . . what is the evidence of the transfer of the mortgage to US Bank?

MR. ______: All I have is PHH’s representations, Judge.

THE COURT: By the woman who also appears to be working for MERS and who isn’t here.

Transcript, pp. 15-16.

The Ruling

In the end, the Court expunged the claim. The Court’s findings are summarized as follows:

1) The documentation attached to the claim was incomplete and did not identify the holder of the note. Recall that the claim included pages 9 through 16 from one document and 16 pages out of 24 pages of another. The Court this selective attachment of partial documents to be suspicious, since the omitted pages would have identified the holder of the debt. As a result, the Court found that the claim was not entitled to prima facie validity.

2) The Court did not accept the affiant as a custodian of records, apparently due to the fact that the same person claimed to be custodian of records for two different entities and because the affidavit was contradictory.

3) The Note contained a stamp indicating that it was transferred from the securitization trust to the servicer, PHH. As the court stated, "To my knowledge of how these securitized mortgage nonte/trusts are structured, it doesn't make sense and it's not explained anywhere in the affdavit as to how it would make sense that it would be transferred to the servicer of the trust, the note would be transferred to the servicer of the trust. That's an odd thing for me to accept." Transcript, p. 24.

4) There was no evidence of assignment of the mortgage to the purported creditor other than the uncorroborated statement of the servicer.

As a result, the Court stated:

You know what, what I will say is this, the owner of the mortgage as far as I can see and the owner of the note has not filed a proof of claim in the case. That’s what I’ve found. Someone filed a proof of claim who’s not been able to establish that they hold the note and the mortgage.

Transcript, pp. 24-25.

What Does This Mean?

Consider what this means. There is someone somewhere who holds a mortgage upon the debtor’s home. That person is not the person who filed the claim. As a result, the true creditor is somewhere outside of the bankruptcy case. A secured creditor can choose to remain outside of the bankruptcy process, in which case the lien will ride through unaffected. The real creditor may appear at some point and ask to lift the stay. If not, at the end of the case, the debtor will receive a discharge from her personal liability but will still be subject to the lien. Of course, if the creditor is never able to prove up its paperwork, then at some point, the lien would be barred by limitations.

Ignoring What We Know To Be True

This leads to the second important point. Complete, consistent documentation matters. The claim was expunged based on incomplete documentation which failed to identify the holder of the note and the mortgage. The affidavits submitted compounded the problem because the same person claimed to be custodian of records for two different entities. The lawyer for PHH forthrightly acknowledged the problem when he stated:

I agree with you, Judge. I think that the reality is that . . . we’re ignoring what we know to be true because we can’t get our hands on the documents.

Transcript,pp. 16-17.

That is a powerful admission. If the creditor’s lawyer cannot get his hands on the documents, where are they? This case started with an originator who advanced actual money which allowed the debtor to purchase a home. For years prior to bankruptcy, the debtor made payments to a servicer. These payments were accepted. The debtor received statements of account. There was never a question raised as to whether the right person was being paid. It was only when the bankruptcy case was filed that questions were raised about proper paperwork.

This raises an interesting question. Was the right person being paid prior to bankruptcy? One possibility is that PHH’s lawyer is correct and that “we’re ignoring what we know to be true because we can’t get our hands on the documents.” The other possibility is that somewhere along the line, there has been a disconnect between the party entitled to payment and the party receiving payment. In this instance, the aggrieved party would be the true holder of the note and mortgage. If the phantom real holder doesn’t complain that its funds are being diverted, what is the debtor’s right to complain? If the debtor’s loan has been lost somewhere in a securitization black hole, does that mean that the debtor gets a free house? This case points out a difficult tension between acknowledging “what we know to be true” and putting the creditor to its proof.

Sunday, November 08, 2009

Dispatches from a Hangdog Bankrupt

This morning I was listening to KUT, our local public radio affiliate, when I heard the story of a rare book dealer who filed for bankruptcy in Austin. His story is told in a series of dispatches which appear on, which you can access here. My favorite story (which was featured on the KUT show and can be found in episode 4) was about the Travis County Constable who wept when the debtor's girlfriend invited her in for coffee as she was serving papers on him. My second favorite was the story of the debtor's interview with his attorney about how to value his cat on the schedules. While the attorney is referred to by the pseudonym Mr. H, you can pretty well figure out who it is, since there are not many male consumer bankruptcy lawyers in Austin whose last name starts with H (and no, it is not Pat Hargadon). The dispatches convey a lot of interesting information and capture the human element of failure poignantly. It is well worth your reading.