Tuesday, April 25, 2017

Privacy Law - Let's All Kill Katz

The Constitution is just a contract scribbled on a napkin. The parties who pretend to be the heirs of those who wrote it can tear it up at will, and frequently do, citing "interpretation" based on "precedent."

I'm putting $1,000.00 down that Katz is explicitly or eventually held implicitly overturned or abrogated by new law which will be held as constitutional in light of precedent by spring 2018. Goodbye, Katz and all constitutional notions of privacy. Thanks for the run, judges!


Shortly after a moot court case on Jones v US in 2013 or so, I developed a hunch which I advanced that there is no expectation of privacy at law provided new technologies develop in such a way as to eliminate a "subjective" expectation of privacy in them, which would of course require a "ratchet" up of the "objective" expectation of privacy.  After all, how can a person subjectively expect shit if objectively you can't? (The subjective / objective language derives from Katz, the classic decision on privacy law stemming from the Fourth Amendment.)

The best example is this: "Oh, you think you have a subjective privacy interest in your backyard with its fences and shit? Well, what about LOW FLYING AIRCRAFT PILOTED BY COPS? Guess you don't have an objective expectation in that!" California v. Ciraolo; and of course Florida v. Riley. The conclusion was - to have a privacy expectation in your backyard you needed to put a tarp over it, which is suspicious as fuck. Plus how will your merrigolds win the annual flower competition?

The language sounded like a cop out the moment I read it. "Wait, I have to both meet a fictitious objective standard and evince that I possess a subjective expectation in privacy? What if I'm a paranoid who believes the government is watching me? Wouldn't that just blow out all privacy expectations because of my paranoia?" And of course it would. But we didn't need to go that far. I think that as soon as a technology comes around which has implicated with it a variety of people who know about the information exchanged thereon, the privacy interest will be lost under this notion - how could you privately expect a phone company not to know about your calls? Or the government not to know about your Internet browsing? Or the GPS tracker not to track your placement? You'd have to adopt Luddite technologies to really meet the privacy test.

I discovered that Orin Kerr had written on the subject from a similar bent. Here's his paper. His thesis is there is no subjective expectation of privacy in the judiciary. It's just uploaded into the objective expectation test. Which (I proclaim) is just whatever a judge feels like. Makes sense. Kerr argues that SCOTUS should just explicitly get rid of the subjective expectation prong altogether to avoid confusing the scholarship.

 Other judges are quickly rolling out their rulings that privacy is bullshit. A district court said in 2016 that if the cops hack your network, too bad, so sad, you should have been the US government where that shit is called treason lol fuck you citizen slam dunk in yo face Fourth Amendment I wipe my ass with the Fourth Amendment.  See U.S. v. Matish (pervert FBI can just seed the net / operate sites with child porn to bait child porn viewers, and then hack them after they access the site - ah, the days when crime begat no further crime are long gone - the Feds must become the scum they seek to catch, or else how could they catch homegrown terrorists?). "Hacking" becomes like peering through "broken window blinds." It's cute, hardly a trespass, cuz it's visual, and long ago it was said that the eye may not commit a trespass (lest you go further to Christ, for whom the eye is nigh capable of committing adultery). Note that in the Matish case, the comparison that a hackable computer is akin to a cop playing Peeping Tom through your window blinds; however, in the case, the computer did not already have "broken" blinds but they sent their tentacular programs through first. See this language: "a computer . . . is not protected from Government actors who take advantage of an easily broken system." Not broken, but could be broken.

Oh, you think browsing is casual? Fuck you, it's the Stored Communications Act coming to wreck your ass. Your IP ain't shit but information for the feds when they want it. Warrantless search because no privacy expectation therefore no Fourth Amendment violation.

A real fun way of thinking about it is this - if the pigs in all their various disguises and skins spy on you every single day, or could spy on  you, then how could anyone have any expectation of privacy whatsoever? If the Matish logic is what other judges are comfortable ruling on - something which a determined enough individual could break into is not private and thus not deserving of a warrant before a cop breaks into it -  then how could anyone in America expect a warrant for anything? Such precedent requires that you keep stripping the notion of "expectations" out of the test. I challenge Prof. Kerr one more - "Hey SCOTUS, just say Katz is dead already and the citizens have no privacy right at all." That would be at least more honest and in keeping with an originalist reading of the Constitution.


The future war of information will be between those who intentionally thwart the government's spying apparatuses and those who seek to exploit and lay bare all data regarding all people whenever convenient to the new batch of swinging dicks in the White House.

Monday, April 17, 2017

A Judgment Is Not a Judgment Lien - Keep Abstracting, Or Lose Your Lien

Judgments do not create liens in Texas.

This is important to remember for creditors trying to enforce judgment debts. If you do not keep the lien up through properly recording abstracts of judgment across any county where you're interested to file (usually a county where property of the debtor is assumed to be), then you will lose your lien and all its related priority.

The harsh lesson of the distinction between a judgment and a judgment lien is taught in Tapss, LLC v. Nunez Co., 368 B.R. 575 (W.D. Tex 2005). In this case, a judgment creditor by assignment of a $610,000.00 personal judgment sought to seize by writ of execution real estate sold by the judgment debtor. (What a steal - "a piece of unimproved real property located in Comal County . . . for approximately $110,000.00" was in turn "sold for 1.75 million dollars to Nunez Company. The judgment was not paid at the time of the sale." Suckers.) The buyer protested in bankruptcy court after the judgment debtor filed. The buyer argued that the assignee was seeking to enforce an abstract of judgment, which created a lien on the property of the judgment debtor, but which was filed after the sale of the property. The court agreed with the buyer, and the judgment creditor on assignment was up shit creek on the judgment.

Creditors attorneys: this is the malpractice zone. Judgment buyers: this is the due diligence zone.

To fix a judgment lien in Texas requires strict compliance with the statute. "There are three steps to secure and maintain a lien against a judgment debtor. First, in order to establish the lien, after judgment is rendered, the judgment creditor must obtain and file an abstract of judgment . . . . Second, the underlying judgment must be kept alive through the issuance of writs of execution. Finally, if the lien is not satisfied with[in] ten (10) years following the date of recording and indexing of the abstract of judgment, then a subsequent abstract of judgment must be obtained and recorded . . . ." Id. at 577 (citations omitted). A "first or subsequent abstract of judgment [that] is recorded and indexed in the county where the defendant owns real property . . . constitutes a lien." Id. However, the lien is only valid if the judgment is not dormant and the abstract is properly recorded and indexed. Id. Dormancy has been discussed at length by me and others (like Donna Brown years before I piped up) elsewhere. The successful issuance and service of writs of execution during the ten-year life of a judgment will renew the enforceability of a judgment, but will not renew the judgment lien created by abstract filing: "When a judgment lien terminates by the expiration of the ten-year period ['following the date of recording and indexing of the abstract'], it can never be extended." Id. at 578, citing Burton Lingo Co. v. Warren, 45 S.W.2d 750, 752 (Tex. Civ. App.--Eastland 1931, writ ref'd) and Tex. Prop. Code Ann. § 52.006.

If the judgment does dormant, the judgment must be revived before the abstract of judgment can be re-filed to recreate anew the lien. If the judgment is not dormant, the abstract of judgment can be refiled to add another ten-year lien (but such a lien ends when the judgment goes dormant). So, you see that there is a game of staggered dates to play: judgment date + ten years = dormancy period; this period can be reset another ten years from the date of the issuance of a writ of execution; the judgment lien runs ten years from the date of filing, which could happen on the same day of the judgment being rendered, or five years in, or a day before the judgment does dormant. So you get a judgment, you file an abstract; if you don't renew, the lien dies on the day of the judgment's dormancy period; if you revive the judgment, you can file a new abstract, and the game begins again; however, if do renew, then the lien continues until ten years from the date of the lien.

So, an example:
  1. January 1, 2000 - judgment rendered
  2. January 1, 2005 - first abstract filed, lien created
  3. January 1, 2009 - writ of execution issued, renewing judgment
  4. January 1, 2010 - judgment dormant unless renewed, lien created by first abstract will die unless extended by a second abstract filing.
  5. January 1, 2014 - second abstract filed, lien extended 10 years.
  6. January 1, 2015 - lien will die if judgment was renewed, but second abstract extending lien was not filed.
  7. January 1, 2019 - judgment dormant again if renewed by writ as in 3. If the second abstract was not filed, the judgment lien has been non-existent for a period of four years prior at this point.
  8. January 1, 2024 - second abstract's lien dies unless extended by a third abstract...
And so on and so forth - you need to calendar this shit or else you'll get sued when your client realizes a $1.75 million property was just sold from under his nose free of his lien because you the attorney did not keep the abstracts fresh. One abstract will not do. One abstract WILL NOT DO. You will be fucked if you rely on one abstract. You keep filing abstracts until the cows come home. If you're a judgment buyer looking to collect on some big ol' juicy numbers on a sheet with that judicial signature on it, then you'd better do a good records search or get some warranties from the judgment seller to confirm the abstracts were timely filed to keep the pertinent liens live.

The court casually pointed out that "the judgment lien was allowed to expire for a period of time" while "the judgment has never been allowed to become dormant" but because sale of the valuable real estate occurred after the "first lien expired, and before the second lien attached, there was no valid lien on the property. This allowed [the buyer] to receive title to the [real estate] from the judgment debtor without the encumbrance of a lien."

A $610,000.00 judgment down the toilet. Sad. But that's the game.

Tuesday, April 4, 2017

UT Law 2013's Best Movie Reviewer Takes on Ghost in the Shell - hint, it fucking sucks

Ghost in the Shell fucking sucks.
I can guarantee you that if you Google movie reviews about this, people wrote about "whitewashing" and "unfaithful to the original source" which, who gives a shit?

"MEMORIES ARE FOR FAGS" is the theme of the movie. "IF YOU NEED A MEMORY YOU ARE A CUCK FOR THE STATE. YOU JUST GOTTA DO IT." It'd have been really interesting if the movie had delved into themes of the minds as "black boxes" you can plug anything into for anyone, but it didn't. "IDENTITY DERIVES FROM PERFORMANCE," gabs Binoche. Ghost in the Shell becomes a testament for corporate-sloganeered ontologies - to be is to do, to do is to act, and to act requires a passing familiarity with history: the present is here, shrouding us in image and sound: so simply be whatever you want. Ah, yes, performance over analysis - the construction of self through behaviors no one can judge, no one can question, no one can doubt, but can only interrupt, steal, and rape.

Ghost in the Shell becomes the trans movie of the year by a simple refusal to say anything interesting about the complexities of reducing being to mechanized performance, replication and simulation: being is functional discharge through the organs of authority, best done by "passing" for human or for whatever it is you were "built" to resemble. The memory of ontic dysphoria becomes a mere symptom to ignore - memories do not define, only behaviors do, so take the plunge and adapt your form to what you "feel," even if such "feelings" are planted memories, recycled thoughts, identities sifted from a basket of digital data repositories. There is a scene where a trashman is "hacked" (I guess), guns show up out of nowhere and he starts hunting a villain down. The trashman is later "unhacked" and he kills himself when he realizes that his memories were planted in his mind (this doesn't add up, since before the hack he's talking about his family, and after the hack he's talking about his family, but it's only after the hack he's told that he has always lived alone, forcing the audience to then ask "Well, why the fuck did you tell us otherwise just before the hack, and then say his identity got sucked out by the hack and replaced with something else? Also, how? Also, why?"). The trashman kills himself and no one gives a fuck. The movie rolls on, a sea of meaninglessness washing its audience to the depths of oblivion.

The movie crushes us with awful line delivery, scripting and visual overload. The first two sentences are literally "DERP YOU HAVE A GHOST, IN YOUR SHELL, WHICH IS YOUR BODY, AND THE GHOST IS YOUR SOUL." Wow?! Really?!!! Thanks, guys, I thought it was like an actual horror movie I was gonna see where snails are the evil lurking around us all.

All the big titties in the world couldn't save this movie, and I was thinking very hard about some titties which could. Couldn't come up with a single pair.

Beyond its semantic unwillingness to struggle with the logical implications of a society "networked" with a variety of technologies and information sharing systems, the movie is a pornography of Japanese hijinks:  look, hologrammatic fish crossing the street, Asians doing bad things, Westerners doing good things in service to Japanese authority, giant holograms a la Blade Runner just being projected on buildings for absolutely no reason, and insane, plotless submersion into random violence as a new cyborg tries to find out who's "hacking" and killing corporate head honchos. Guess what, guys? It probably has something to do with the military-industrial complex, but only the bad apples. Augmentation is fine. Networking human minds together is fine. Cyborg creations are fine, but only with the illusion of "consent" - "We never needed your consent," big titty heroine is told as she affirmatively negates consent to the termination of her "data" (i.e. cyborg-death): verily, the movie finally speaks true - it has raped our senses for an hour and a half without consent except through my passivity, waiting, anticipating some payoff, some recurve to basic storytelling; it ends with more high tech gibberish, and we, like the archvillain of the film can now ask ourselves, "What did they take from me?"

Writing really sucks. Dropping cool terms like "I'm gonna deep dive this pussy" doesn't tell the audience what a deep dive is, and saying "shit she's being hacked" when all we see is a swarm of Gollums molesting some broad proved very lol'able. I know autistic neckbeards were probably like "but that fucking pool fight yo where she's like cloaked and shit as she batters some (I guess) hacked body wasn't that dope as fuck dude" but Jesus Christ: did you seriously come to a movie for a FIGHT scene? Can't you sit at home and just watch Daredevil or some shit if what you want is nonsensical fighting?

A villain "sacrifices" herself for the heroine, some might argue, as if that ennobles and redeems her as a character who experimented on kidnapped Commies sacrificed to the order of corporate-military endeavors. But it's clear this villain doesn't do anything of the sort - her project is being threatened with decommission, and she rebels: nay, my monster shall live yet, and the cyborg flees to persist in self-awareness and to bring "justice" to a corporate fiend kidnapping street trash for cybernetic experiments.

I think the funniest part is where we learn that the heroine used to have an identity where she was a homeless Commie agitator. Then she was morphed into the ultimate soldier fighting for Justice and Humanity. Even after learning of her past, she rejects this former self, cleaving to this new-formed entity as her "true" self; the past is dead, only the future remains to carve out, immemorious.

This movie is a schizophrenic mess. Can't wait to see Raw to wash this barf out.

Sunday, April 2, 2017

TRCP Rule 93 (and Rule 185) requires verified denials - Part 2 - proper verification & attacking verified denials

Some of you have wondered - what counts as a verified denial?

I know I have. I got an affidavit from some guy the other day saying in his Answer something like this -

"Under Rule 93, I deny the allegations of the petition under this [Rule 93 ground]."

This assertion is followed up by a "verification" which says this "Billy appeared before the undersigned notary and deposed as follows: My name is Billy. I am at least 18 years of age and of sound mind. I am personally acquainted with the facts alleged in the Answer, which are true and correct. Signed, Billy. Notarized, Sally."

This struck my cashew-chewing face as invalid for purposes of verified denial, so I looked at ol' Rule 93 for some guidance and found none. Unto case law looked I next, and lo: AJP Oil Co., LLC v. Velvin Oil Co., Inc., No. 06-15-00061-CV (Tex. App.--Texarkana Feb. 5, 2016). This case is not about Rule 93 verified denials but it does discuss the peculiarities of seeking summary judgment on a sworn account when a verified answer has been filed pursuant to Rule 185 (the Rule governing sworn account suits).

Rule 185 does not provide a "cause of action" on such accounts, but merely lets evidentiarily deprived plaintiffs a cheap mechanism to seek judgment in their favor:

When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of the affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath.

A party resisting such a sworn claim
shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be. No particularization or description of the nature of the component parts of the account or claim is necessary unless the trial court sustains special exceptions to the pleadings.
So, it is clear that under Rule 185, if you're a defendant to a sworn account suit facing an affidavit of some sort from the plaintiff in the face, your only recourse is to file a "written denial, under oath" lest ye be forbidden from "deny[ing] the claim."

What does Velvin Oil shed on this austere Rule?

Rule 185 written denials under oath do not need to meet the Rule 166a affidavit requirements
Velvin Oil dealt with this issue: plaintiff filed suit on sworn account and filed motion for summary judgment when the defendant did not verify denial at first; however, the Defendant ended up verifying its answer and appealed the grant of summary judgment against it, claiming that the verified denial trumped the "verified information in [Plaintiff''s] suit on sworn account [which was] not summary judgment evidence." Id. at *2.

"AJP Oil and Patton originally filed an unverified answer generally denying Veilvin Oil's allegations and specifically pleading that the account had been paid in full, and, in response, Velvin Oil moved for summary judgment based on the pleadings [i.e., no evidence]. Although AJP Oil and Patton then filed a verified amended answer, the court nevertheless granted summary judgment for Velvin Oil..." Id. at *2-3. The appeals court found that the "verified amended answer precluded Velvin Oil's entitlement to summary judgment based on its sworn account" based on a reading of the operative effects of Rule 185.

The verified denial contained  an affidavit of the Defendants which attested, "on his personal knowledge, 'every statement contained in paragraphs 1 [assertion of payment of debt] and 2 [denial of charges due and owing] of the amended answer was true and correct.'" Id. at *3 (parentheticals omitted). They additionally filed a response to the motion for summary judgment with affidavits. Recall, the plaintiffs did not add any "summary judgment evidence" as defined in Rule 166a to their motion as they were relying solely on the pleadings; only the defendants filed evidence in the summary judgment phase: "In this case, Velvin Oil's sole ground for summary judgment was based on the sworn account and the insufficiency of AJP Oil's and Patton's unverified answer." Id. at *5. Failure to file a sworn denial means "no further evidence is required." Id., quoting Brown Found Repair & Consulting, Inc. v. Friendly Chevrolet Co., 715 S.W.2d 115, 116 (Tex. App.--Dallas 1986, writ ref'd n.r.e.) (citation omitted). The timely filing of verified denials under Rule 185 requires that "the plaintiff must put on further proof of his claim," and a motion for summary judgment must have "competent summary judgment evidence showing entitlement to judgment as a matter of law" in the face of such a verified denial.  Id. (citations omitted). 

The plaintiffs argued that Rule 166a cases had already decided the issue requiring a recital of facts, and not a mere reference to the allegations in the Answer. The court analyzed this issue as not one of Rule 166a but one of Rule 185, holding, in essence, that verified answers are not like affidavits for purposes of Rule 185, and do not need to meet the requirements of factual recitation as would be required of a Rule 166a summary judgment affidavit. "Under Rule 166a, there is no requirement that an affidavit in support of a verified denial under Rule 185 set forth facts as would be admissible in evidence. . . . Under Rule 185, no particular form is required for the sworn denial. It is sufficient that the affidavit recite under oath that the factual statements contained in the answer are true and correct and that it is based on the affiant's personal knowledge."" Id. at *7-8 (citations omitted). This is the law in Texas. See Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862-63 (Tex. 1979).

Rule 93 and Rule 185
Rule 93(10) incorporates Rule 185's verified denial procedure: "A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit: A denial of an account which is the foundation of the plaintiff's action, and supported by affidavit." Tex. R. Civ. P. 93(10). Dope. So the chapeau of our good friend Rule 93 swallows the Rule 185 requisite, and from the interpretations of the loose requirements on Rule 185, we can safely export the same to all other verified denials under Rule 93 for the following conclusion:

Since Rule 185 requires  a "verified denial" to survive the properly prepared sworn account suit, and "verified denial" requires a very sparse set of counter-allegations in the answer provided they are sworn to as true and correct and based on personal knowledge, then the verified denials under Rule 93 similarly only must: 

 1) allege the subject matter denied in the guts of the answer,
2) recite under oath that the factual statements in the answer are true and correct, and
3) recite under oath that the factual statements in the answer are based on the affiant's personal knowledge.

However, your verification cannot verify inconsistent alternative pleadings. "A purported verification of two or more inconsistent or alternative does not meet that requirement." Golub v. Nelson, 441 S.W.2d 220, 221 (Tex. Civ. App. 1969). In Nelson, the defendant filed a general denial, together with a plea that credits were not properly calculated and also denied the account as just and true in whole or in part.  The court took issue with the verification, which recounted that all of the allegations were verified. "The affidavit attached to defendants' answer was not confined to the denial that plaintiff's account 'was just or true, in whole or in part.'" Id. A verified denial thus cannot effectively verify an entire answer to the extent the answer incorporates gobs of competing defenses which logically override one another.

How to attack a verified denial
Fair's fair. I've told you how to get any Rule 93 verified denial through any court in Texas.  The only way to respond to a Rule 93 verified denial is by special exception, which provides that unless a party attack "[e]very defect, omission or fault in a pleading either of form or of substance . . . by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury or . . . before the judgment is signed."  Tex. R. Civ. P. 90.

See, e.g., Sharif v. Par-Tech, Inc., No. 01-02-01238-CV (Tex. App.--Houston [1st Dist.] Feb. 26, 2004) (discussing Rule 185 requirements in context of Rule 93 and finding that without a special exception to the denial or affidavit, the sworn denial operated to destroy the evidentiary effect of the sworn account pleading).

See, e.g., Hopes v. Buckeye Return of service. Co., LLC, 2009 Tex. App. LEXIS 2244 (Tex. App.--Corpus Christi Apr. 2, 2009) (foreclosure sale buyer failed to raise special exception objecting to occupants' failure to file verified pleading under Tex. R. Civ. P. 93(9) and 94, so it was waived on appeal).

See, e.g., Stettner v. Apollo Paint & Body Shop, 2004 Tex. App. LEXIS 6874 (Tex. App.--Houston [14th Dist.] July 29, 2004) (stipulated facts included plaintiff's legal concession regarding when defendant's bill of review should be granted, and thus waived pleading defects in defendant's bill of review).

My poor defendant's affidavit
The answer and affidavit quoted above thus looks like shit under the Rules. The answer's only "factual allegation" is a general recital of which subpart of Rule 93 he invokes. He does not recite any facts that would trigger the Rule 93 verified denial. So what facts could his affidavit possibly attest to be true and correct?
Thank God I know how to prepare motion for summary judgment evidence. But if I felt like being a dick, I'd also file special exceptions to the deficiencies of the verified denial. But why give the other side a heads up if you can produce the summary judgment evidence? In the sworn account universe, no evidence is great; in every other debt universe (outside of the awful, terrible, mockery of law BULLSHIT Citibank rule - lol look at me I'm a bank I just made up a cause of action cuz I don't have any proof of a contract or any terms thereof lol), you better have evidence before you go to court or end up looking like a retard when the Rule 93a motion to dismiss comes along.

I think this wraps up the topic for pretty much ever, unless the Supreme Court fixes the summary judgment evidence "of record" bullshit I discussed in my last post.

Tuesday, March 28, 2017

Improper use of declaratory judgments under the Texas UDJA

Declaratory judgments are interesting procedural devices to resolve certain types of disputes. Charlie Munger of Berkshire Hathaway even dropped a good quip about an old Yale law prof of his when discussing the "every problem is a nail to a man with a hammer" type of thinking in his great speech on human misjudgment: "Poor old Eddie Blanchard, he thinks declaratory judgments will cure cancer." I did a quick search and found out that there was no Prof. Ed Blanchard, but there was a Prof. Ed Borchard, who wrote in 1934 about declaratory judgments.

In my practice of collections, the only time I'll see a declaratory action is usually when some party is trying to avoid liability on a debt. This is an improper use of the Texas Uniform Declaratory Judgments Act (UDJA). When I see that shit, I prepare a lot of angles of attack like special exceptions, motions to dismiss under Rules 90 and 91a, and no-evidence motions for summary judgment. I basically want to make sure that they know I'm willing to go head to head on it. When a debtor defendant introduces a UDJA claim, the elephant in the room is the statutory award of attorneys' fees that a court may award under the UDJA.

The basics
In Texas, the UDJA is codified in Chapter 37 of the Texas Civil Practice and Remedies Code. So you can read along here.

The text of § 37.002 of the Code says that the purpose of the Act "is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Tex. Civ. Prac. & Rem. Code § 37.002(b). Section 37.003 says that courts of record have within their jurisdiction the "power to declare rights, status and other legal relations whether or not further relief is or could be claimed." Id. at § 37.003(a). Declarations are effectively final judgments. Id. at § 37.003(b). In subsection (c), the Code appears to expand court powers beyond the terms listed out in Sections 37.004 and 37.005: "The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty." Id. at § 37.003(c).

One court has read this subsection as essentially giving it a wide range of issues it can make declarations on. I'll discuss that opinion later.

Notwithstanding that subsection, Section 37.004 provides the basic subject matter elements of a declaratory action. You must be 1) a person, 2) who is interested, 3) in a "deed, will, written contract, or other writing[] constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise" to 4) seek a determination of "any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise" and/ or "obtain a declaration of rights, status, or other legal relations thereunder." Id. at § 37.004(a).
Section 37.005 discusses estates and trusts and I'm not gonna talk about those. Courts can avoid rendering declaratory judgment "if the judgment or decree would not terminate the uncertainty or controversy giving rise to the proceeding." Id. at § 37.008.

Money shot: "In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Id. at § 37.009. I don't see a "prevailing party" term in there, do you? So that means as long as someone even says the words "declaratory relief" and asks for related fees, you need to be on your A game, because even a losing party can make a case for fees under those standards "reasonable and necessary" and "equitable and just."

The interesting shit
So Joe Blow sues Billy Bob for a debt contract under a typical breach theory. Billy Bob realizes under Texas law, unless the contract or some statute provides for recovery of attorneys' fees, he's stuck paying his attorney out of pocket. The attorney knows, however, that he can always make life difficult for the creditor by turning his defense into a "declaratory relief" counterclaim. So rather than put on evidence to defend against liability, Billy Bob can simple ask the court to "declare" his non-liability, and now what would have been a defense he paid for all of a sudden becomes a defense the other side pays.

Surely the UDJA must have some limits, or else you'd see this all the time, right?

The UDJA says that "the purpose of a declaratory action is to establish the existing rights, status or other legal relationships between parties." Coover v. Enerfin Field Servs., LLC, 2012 Tex. App. LEXIS 4376 at *26 (Tex. App.--Corpus Christi May 31, 2012), citing City of El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009). The UDJA is meant to redress controversies between parties long "before any wrong has been committed." Id. at *6, citing Armstrong v. Hixon, 206 S.W.3d 175, 179 (Tex. App.--Corpus Christi 2006, pet. denied). It is improper to use the UDJA to find that an agreement as stated is unenforceable under existing law, but rather only to resolve disputes as to existing duties or other rights where the intent of the parties is not clear. Id. at *25-*26. In other words, declaratory relief may not be used to "modif[y] or revise[] the rights and status of the parties," but only to "constru[e] existing rights dependent upon written instruments." Anderson v. McRae, 495 S.W.2d 351, 355 (Tex. App.--Texarkana 1973); see also Emmco Ins. Co. v. Burrows, 419 S.W.2d 665 (Tex. Civ. App.--Tyler 1967, no writ) (court held improper basis for declaratory relief where plaintiff's pleadings were read to avoid compliance with undisputed contractual obligation and contract was not in evidence). Such instances where declaratory relief is appropriate arise in determining duties under the existing language, and not in seeking to avoid liability under a theory of breach of contract. See Coover, 2012 Tex. App. LEXIS 4376 at*26 (distinguishing between a determination of duty to pay liquidated damages under contract and seeking an affirmative ground for recovery).

Furthermore, Defendants are not permitted "[t]he use of a creative pleading that merely restates defenses in the form of a declaratory judgment action," as such pleadings do not constitute "any averments of fact upon which affirmative relief could be granted. They are merely denials of plaintiffs' cause of action." BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990), citing Newman Oil v. Alkek, 614 S.W.2d 63, 655 (Tex. App.--Corpus Christi 1981, writ ref'd n.r.e.). The UDJA is not built to declare non-liability for past conduct. See id. The UDJA is improperly invoked when the declaratory relief sought is already raised in the case in chief. Id., citing John Chezik Buick v. Friendly Chevrolet, 749 S.W.2d 591, 594 (Tex. App.–Dallas 1988, writ denied) (agency issue raised in defendant’s declaratory relief suit was already before court as part of plaintiff’s case). The UDJA simply “is not available to settle disputes already pending before a court.” Id. Declaratory relief is only available when seeking a “true declaration controlling an ongoing and continuing relationship” and not to determine the appropriateness of “a one time occurrence that is fully covered by [the plaintiff’s] original suit.” Id., quoting John Chezik Buick, 749 S.W.2d at 595. The Supreme Court distinguished between such cases and those where a defensive declaratory action brings in “new controversies” and otherwise “has greater ramifications than the original suit,” such as when the party seeking declaratory relief does not merely mirror the plaintiff’s pleadings to negate the original relief sought, but oppose it directly in seeking affirmative relief. Id. at 841-42, discussing Winslow v. Acker, 781 S.W.2d 322, 328 (Tex. App.–San Antonio 1989, writ denied) (plaintiffs sued for recovery of share of overriding royalties in mineral estate, and defendants properly countered with declaration as to their own rights in the royalties).

But that other case...
I cite to Anderson v. McRae above for my position. The quote from that case is pulled from the court's discussion of the appellant's position, with which the court disagreed. The appellant was arguing that "the court was not simply construing or settling the status of the parties and their existing rights under written instruments, but was in fact granting equitable relief in modifying or revising rights specified in written instruments." Anderson, 495 S.W.2d at 356. The court in this case relied on section 5 of the previous version of the UDJA, then found in Tex. Rev. Civ. Stat. Ann. art. 2524-1, the provision which says that nothing in the UDJA is meant to "restrict the exercise of the general power of the court . . . to 'declare rights, status, and other legal relations.'" Id. Because the Code provides that a court can gran other relief, "whether or not further relief . . . is claimed," it is not improper for the court to do whatever it feels like doing.

Now, I think the court is taking liberties with the Code (and I'm assuming arguendo it's the same Code today as in 1973, language-wise); the Code actually says that there is no limit on the general powers provided "declaratory relief is sought and the judgment or decree will terminate the controversy or remove an uncertainty." Tex. Civ. Prac. & Rem. Code § 37.003(c). I think that's pretty clear that if the relief sought is not the relief ruled upon, then those general powers are not available, and furthermore the judgment on relief must be one to terminate a controversy or remove an uncertainty, in comportment with the purpose of the Act as laid out in § 37.002 ("to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations"). The court stated that the UDJA "is applicable whenever there is a justiciable controversy involving uncertainty or insecurity as to the rights, legal relations or status of parties and when declaratory relief will settle the dispute and put an end to the controversy. A wide variety of factual situations has been recognized as entitling one or both sides of a controversy to declaratory relief." Id. In Anderson, the dispute was whether or not a landowner bamboozled some buyers of land into thinking they were buying exclusive rights to use of some wooded lakeshore property. The landowner-appellant appealed a declaratory judgment excluding guests of his commercial lodge from freely using reserved lot areas on some property (essentially gutting the commercial endeavor); guests could only use if they were lot owners or accompanied by lot owners. The declaratory suit was made to "[construe] certain restrictions and easements allegedly granting lot owners in said subdivision exclusive rights to [a lake] and to certain recreational areas and roadways located near and adjacent to the subdivided lots." Id. at 353. The trial court found that "the contract to purchase, deeds, declaration of restrictive use and agreement relating to the use of the lake were all of the written instruments executed by the parties relating to the rights in dispute" and "that a dispute [had] arisen between plaintiffs and defendants as to the construction of rights under the written agreements, deeds and plats referred to above." Id. at 355. The appeals court read appellant's contention that the trial court was impermissibly modifying or revising rights and party status as one of "propriety" and not of "jurisdiction or power to adjudicate the issues." Id. As already stated, the appeals court found that the UDJA provides a lot of power to a trial court to resolve controversies of any kind, and did not put any weight in the argument that the court was cheating the purpose of the Act in revising rights.

One of the persuasive factors appears to have been that the parties were fighting about the contracts. The court distinguished its holding from that in Emmco Insur. Co., 419 S.W.2d at 665, by noting that in that case "the plaintiff was seeking to avoid compliance with an undisputed contractual obligation created by a contract which had not even been introduced in evidence." Id. at 357.
The court noted that the "justiciable controversy" requirement is easily met: "It is enough if there is a genuine controversy where parties are asserting conflicting claims of right." Id. The appellant focused his arguments on limiting the scope of the UDJA to the meaning of the instruments, but the court had "already demonstrated that the [UDJA] should not be limited to such a narrow application." Id. Therefore, because parties disputed who had exclusive property rights, there was "a controversy regarding such claimed rights which was sufficient for a declaration of the legal rights of the respective parties. . . . Therefore, the controversy here was in reality a dispute as to the construction of the rights granted appellees by their deeds." Id.

But what about BHP?
This opinion is tough to square with the Supreme Court of Texas' later language in BHP Petroleum, Inc., where the Court noted (as I wrote above) that the UDJA simply “is not available to settle disputes already pending before a court.” 800 S.W.2d at 841. Declaratory relief is only available when seeking a “true declaration controlling an ongoing and continuing relationship” and not to determine the appropriateness of “a one time occurrence that is fully covered by [the plaintiff’s] original suit.” Id., quoting John Chezik Buick, 749 S.W.2d at 595. It does not seem clear that there was "an ongoing relationship" between the parties, however, unless you simply turn it into one of neighbors appurtenant to one another. There was a buyer, and a seller; the dispute was whether the seller breached the terms of contract, not whether there was a "relationship" to construe. Perhaps, however, the equitable nature of the case led to the result in Anderson (though that's tough to reconcile with the explicit language of the power of the court to decide such trivial issues as whether or not a landlord is violating his neighbors' rights by letting his own guests access properties they had thought belonged exclusively to them). I dunno. I argue BHP controls in my contract enforcement issues: there was a one-time breach, there's no longer a "relationship" outside of debtor and creditor, and I filed suit so the case is pending before a court. So under BHP, a declaratory judgment "defense" is inappropriate: it's just a "creative pleading" which mirrors the pleadings to negate them.

This ties into the fees question under the law. "A party bringing a counterclaim under the UDJA may recover its attorney's fees 'if its counterclaim is more than a mere denial of the plaintiff's cause of action.'" Morton v. Timarron Owners Ass'n, 2014 Tex. App. LEXIS 6422, at *16 (Tex. App.--Fort Worth June 12 2014), quoting Warrantech Corp. v. Steadfast Ins. Co., 210 S.W.3d 760, 769 (Tex. App.--Fort Worth 2006, pet. denied). 

So clearly, your goal should be to characterize a dec action as not a dec action; if it's not a dec action, then the fees are impermissible. If it is a dec action, then even if they lose, fees are permissible under the standards. Fight hard.

Those are my two cents on defensive dec actions in a debt suit.

Thursday, March 23, 2017

Res judicata for claims following bankruptcy dismissal without discharge

Res judicata and you

Today I'm discussing in brief a fun topic about bankruptcy I've covered in part elsewhere. People file for bankruptcy and try to get a bunch of claims paid off at a discount or otherwise re-termed to help stay financially afloat. Sometimes, though, for whatever reason, the bankruptcy plans they make fall apart and then the bankruptcy case gets dismissed. Then the debtor tries to attack the claims in ways they never tried to during the bankruptcy case. This is a no-no; such arguments are barred by res judicata, which is basically a judicial doctrine that says "If you had the chance to make this argument before about the same things you're arguing about now and you didn't, tough luck, I don't want to hear it."

For my clients, this usually works out like so:
1) Creditor loans money to Debtor.
2) Debtor files.
3) Creditor's claim is treated into the plan.
4) The plan is confirmed.
5) Debtor's bankruptcy is dismissed without discharge.
6) Creditor files suit on claim for balance.
7) Debtor now says "lol you can't because I paid that a long time ago, before bankruptcy" or something like that (lol you can't because unconscionable at formation, etc etc)
8) Creditor invokes res judicata.
9) Creditor and Debtor become friends.

This issue is pernicious for the pro rata distributees in the bankruptcy case because then there could be a bit of a fact fight over whether any payments were ever made to their fund before the dismissal. Trustees apply payments usually as follows: secured, priority, then the pro rata. You'd have to ask the trustee or check the payment history in the file off NDC to see what the story is on the payment breakdown if your client's records don't say anything about credits through the bankruptcy payment process.

Res judicata breaks down in the Fifth Circuit like this:
"(1) [T]he parties must be identical in both suits; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must have been a final judgment on the merits; and (4) the same cause of action must be involved in both cases." - Res Judicata Revisited by the Fifth Circuit, ABI, June 2000.

There are three big federal cases I can think of (haven't followed up on them, so cite with caution) that essentially condition the res judicata doctrine at various phases of the bankruptcy process when claims were treated in the plan. In re Baudoin, No. 91-5091 at *11-. (5th Cir. Jan. 6, 1993) (post-discharge debtors barred by res judicata from bringing lender liability action); see also Siegel v. Fed. Home Loan Mortg. Corp., No. 97-55174 (9th Cir. May 5, 1998) (where no objections to contract proof of claim raised, res judicata applies to post-discharge suit regarding breach of contract claims by the debtor). You'll note that both of these cases involve post-discharge arguments. The rationale kicks in at plan confirmation, however. See Sure-Snap Corp. v. State Street Bank and Trust Co., 948 F.2d 869, 870 (2d. Cir. 1991) (cited approvedly in Baudoin); see also Matter of Applewood Chair Co., 203 F.3d 914 (5th Cir. 2000) (confirmation res judicata). Because bankruptcy dismissal essentially resets parties to their pre-filing positions, then the creditor's claim becomes something viable with an additional immunity against arguments that could have been raised during bankruptcy. The strength of the res judicata doctrine would hold (IMHO) that claims, even objected claims, once confirmed are stronger claims after the bankruptcy dismissal. The Fifth Circuit's transactional test for a determination of res judicata does not care about the legal theories for recovery, only the essential facts viable at the time of the original judgment / order / decree. Note that these holdings mainly discuss counterclaims brought against creditors for alleged misbehaviors. The doctrine bans claims and defenses when the transactional test shows the same nuclear of operative facts at issue.

This is important. I read these holdings as saying that if Dougie says to you, "Hey Cindy, I paid that debt before my bankruptcy," but Dougie still made provision in the plan for the debt, he cannot now make up this defense of payment. It has been held that the logical results of res judicata do not even require that an adversary proceeding occur pre-confirmation. Interesting, right? Assuming a claim could sneak by the trustee and the debtor's counsel, then a creditor is going to be entitled to a claim, even if it was already paid, unless some equitable showing can be made to get around res judicata. This is just me bullshitting. I don't know. But a similar issue is involved in the Supreme Court case heard recently, where a debtor basically argued that a time-barred debt which was not objected to and got into the plan is a violation of the FDCPA. I have misgivings about such an argument, but it's awaiting decision.

Food for thought: I am 100% certain though that a creditor could not sanely invoke res judicata for a limitations defense after the bankruptcy dismissal. Assuming the creditor files outside the limitations period for the claim which was confirmed in the plan, a debtor should be able to fairly invoke this defense without the res judicata argument being a problem, because the "fact" of the timeliness of the claim under applicable law was not a "fact" involved in the transaction when the claim was presented to the bankruptcy court for confirmation in the plan. The same for service issues which may be involved in the new lawsuit after bankruptcy dismissal; why would a debtor be res judicata barred on the question of a court's personal jurisdiction where service was defective? It wouldn't fly, so don't try. What up.

Tuesday, March 21, 2017

UT Law 2013's Best Movie Reviewer Takes on Get Out (good), Logan (good) and Beauty and the Beast (sucks)

2017 may be my most White pop-friendly year. I wrote in Obama for a third term, I'm into Florence and the Machine, I only listen to the top ten podcasts, and I watch movies the public likes. I'll start with the shittiest one, Beauty and the Queef, and move on to Logan and then Get Out.

Beauty and the Beast
NEWS FLASH! The curse said if the last petal falls before Belle returns the love of the Beast, he's cursed and so is everyone in the castle. In this movie, the Beast dies, the petal falls, Belle says her thing. That's not what happened in the source material. This movie ends with everyone being turned into objects, Belle kills herself and the Beast's corpse rots in the rain because that's what the writers told us would happen. It would be insane for the writers to lie about something so simple as the main plot conceit, right?

God this movie sucks. It's a soulless scene for scene reanimation of a fairly perfect and inoffensive cartoon from 1991. It's dedicated to a songwriter for the original cartoon who croaked from AIDS, which makes the pre-release PR misinformation campaign waged by Disney about a "gay character" being proudly exhibited in this new adaptation of the cartoon more than a little suspicious. Luckily, Disney's aware that you can be gay for purposes of their silver screen as long as it's not too gay. You know, like actually gay.

I played "spot the gay moment" throughout the entire movie and was stumped, since the thing was gay from end to end. If Disney meant "spot the homosexual moment," I failed to find it.

In Beauty and the Beast, LeFou pines for his taller friend Gaston, who's a retard who can be hypnotized by memories of some French war, including all the widows he presumably fucked his way through. In the bro song where LeFou sings up Gaston's praises, there's a bit where he hugs Gaston from behind (VERY SEXUAL CUZ GAYS COME FROM BEHIND), and then he asks "too much" and Gaston says "too much" and then they sing some more. He's a gay illiterate it turns out! Can't even spell his buddy's name! Oh, LeFou! You make me laugh.

Apparently the movie ends with a SUPER GAY SCENE where LeFou is dancing with a bunch of people in the Beast's ballroom and ends up passing partners into the hands of a man. That's the moment Disney apparently thought was his gay coming out moment or something.

Absolutely none of the rest of the plot matters. Disney is just checking off liberal boxes. Feminist scene? Check - Belle teaches a girl to read in 5 minutes while her laundry tumbles (but never does another feminist thing the entire movie.) Blacks? Check - tons of them! Lots and lots of single Black dudes, all the Black girls are fucking White guys and no Blacks fuck each other! Hell yeah! Historically accurate race relations lol! Gays? Check - because Disney said so, as otherwise it would require a sexualist frame of reference by which the audience interprets certain behaviors as gay (you know, saying stuff like "it's never gonna happen ladies" to bar wenches pining for Gaston, talking to a mirror after Gaston is done talking to the mirror, a fucking teapot saying that LeFou is too good for Gaston although it's never met him and has no idea who Gaston is, etc etc etc).

Can't wait for the "first openly trans character" in a Disney movie and how they'll fumble that shit. I imagine some kid trying to talk to his single mom about how he's feeling really weird lately when he's at a high tech school for nerds, and it happens only when he goes to the bathroom because that's where sex and gender roles are well defined by how one takes a piss in front of other people, and his clothes are beginning to chafe at his spirit, so he uses his education to create a badass power trans suit for himself so he can be a hero while comfortable in his gender, and the only tell Disney lets you in on to understand that the suit is to accommodate his trans is they use those male / female key symbols and just swap the arrow for the cross or vice versa and you just have to "get" that he's trans because it'd be super duper transphobic to make him do something like talk about being trans in a Disney movie rather than simply being a caricature of a trans.

There's a retarded technology in the movie where the Beast can literally teleport anywhere he wants to in time and the world and bring things back from that place. No one knows why. It's used for a throwaway scene where Belle finds out her origins (plague baby) and takes a memento from the past. I don't even want to think about the stupidity of this scene, as it's never used again in the whole movie but is literally a world-changing magical item. Wasn't the mirror enough?

Beauty and the Beast sucks. It's a force-fed film that tries to pack nostalgia into a movie with extra scenes and plot that is completely abandoned. Random elements are tossed in: what if the townsfolk forgot they had a prince? how would they self-govern? what if spouses forgot they were married to people in the castle? how funny would that be if like people got married again and that was explored for comedic effect? what if it's randomly winter in the castle but it's not anywhere else, for no good reason? how would anyone find the Beast if the path to the Beast was magically blocked off again?

People fucking laughed and cheered and clapped in this movie. I hope they all got in car wrecks.

Logan's cool. Opens up with Wolverine killing Mexicans, and ends with him dying of adamantium cancer. I thought it was pretty retarded to make the villain a Wolverine clone, since it was already established in one of the Wolverine movies that the most badass hero was Deadpool and the only way around dying to him was to beat him as both Sabertooth and Wolverine. Then they resurrected Deadpool with Ryan Reynolds again and it's a hit! Nothing matters as long as profits can be made on contradictory roles and stories! Pluralities!

Professor X is good in this movie. Foul-mouthed Alzheimers guy. Wolverine cusses at a kid. The kid is the worst bit. She kills gobs of people and apparently would have also killed some store clerk for talking to her, because she "doesn't understand English" and then this is tossed out the window when it's revealed she knows Spanish and English. Yawn.

The movie is done in an episodic fashion. It's built as a Western, like True Grit. Man takes girl somewhere, keeps her safe from nature and violent forces.

There are dumb scenes. It's explained early on that Professor X literally killed X-Men with his brain when he got Alzheimers because his seizures make him kill people by freezing them in place with psychic resonance. In the first 8 minutes he almost kills a mutant friend of his with a seizure (his words, not mine), and then he has an intentional episode where he uses his mind to freeze assailants in their place. This lasts for fifteen minutes as Wolverine crawls from his car through a casino lobby and then has to wait for the elevator to come down and then take him up. No one dies. What the fuck.

Wolverine and the little girl are unstoppable murder machines and could have eviscerated every single person challenging them at the start of the movie. They don't. Yawn.

The little girl is apparently a custom built bioweapon who can only be located by using another mutant whose trait is finding mutants. Versus, say, a GPS chip in her? Convincing.

Little things. Good movie. Too many kids in it.

Get Out
Get Out rules. Culminates in sweet Black on White violence following long episodes of White racism, predicated on a reverse racism assumption that the lived experience of the Black man in White America is to fear and expect to be talked down to, objectified and treated like chattel. There's even an auction scene for him! Awww.

I'm talking shit, but it's a very smart movie. Surprising as it comes from one half of the guys who did this. Blah blah blah Black guy is dating a White girl (PROBLEMATIC), goes to visit them in the Hamptons or something, gets bombarded with racism coded in weird remarks while his White girlfriend doubts him at every chance, leading him to doubt that what he's rightly viewing as racist as actually being racist. The movie obviously has to set up some group for its own racism, so it picks the Whites (and thank God, the Asians): Whites think like this, and talk like this. Blacks can't be like Whites, and to even try is to deny your identity. Fist bumps are Black: handshakes are White! Why ever would two Black men shake hands except after having assumed White values? It's a bit heavyhanded when it introduces other Blacks into the plot to make the "point" of the body snatching storyline, as it's otherwise excellently subtle. "Woulda voted Obama third term" "hey you ever been in any street fights you beast" - male buck deer are metaphors for Black men, dead does are metaphors for Black women, struck, hit and forgotten; the White girlfriend's milk and Fruit Loops don't mix (which honestly makes no sense, since she fucks Black guys, her White grandparents occupy Black bodies and in time presumably the whole family will end up in Black bodies; since the White values never go away, why would they not "mix" now? Isn't that the whole fucking point - doddy old Whites get young Black bodies for reaming their old ass White wives?).

The worst bit about the movie is the hypnosis plotline. Somehow a magic technique exists by which Black men are lulled into sleep by a grandma stirring tea and then they lose all sense of identity, go instantly to sleep and can't remember a lot of stuff after. Our hero somehow escapes an inescapable situation involving hypnosis and ends up surviving the horror movie, a subversion of the Black guy always dies first trope.

The movie's good. It's not "funny" except in reviewing the development of the imagery and the plotpoints. There's a useless Black supporting comedic relief character who just says dumb shit like "Dem niggas went over to that cannibal's house and he fucked they heads!" (Which led me to this thought: if the body swapping ever had to go into a White body with a Black brain, no Black would ever be fooled as they'd immediately know Whites don't talk like that; but the "wigga" in the movie fooled me into thinking that this was the true plot - everyone's brains and bodies were being swapped, so the Whites with Black brains and Black vocabulary would be marginalized and forgotten. Oh, well.)