Monday, July 31, 2017

Shutting down Texas constitutional arguments raised in a Rule 736 hearing for expedited foreclosure

Recently, opposing counsel attempted to raise constitutional concerns about a home equity lien during an expedited foreclosure hearing conducted pursuant to Rule 736. By attacking the lien validity under the constitution, he hoped to essentially buy time until the lien defects were cured, or otherwise established as incurable due to the passage of time pursuant to the limitations period spelled out in the Texas Constitution. Failure to cure a lien defect could entitle homeowners, under certain types of contractual suits, to damages to the tune of full reimbursement of all principal and interest paid. However, the Supreme Court of Texas had issued two recent opinions in 2016 which provided several limitations on this remedy, and several limitations on how borrowers could seek to avoid liability under a home equity lien. Neither opinion pretended to apply to a rule 736 proceeding, and a careful reading of the opinions and other case law on the rule, together with the language in the rule itself, should make an applicant confident in resisting a homeowners’ defense about constitutional lien validity in a 736 hearing. If not, just read my piece and come up with your own rebuttals.

   I lost once on a different issue, written about here, but I shouldn’t have, because I wasn’t wrong and the respondent had not shown the law otherwise. You’re free to use my opinions but don’t get mad if you lose.

   The Texas Supreme Court opinions
   The first case was Garofolo v. Ocwen Loan Servicing, LLC, and the second was Wood v. HSBC Bank USA, N.A., both issued in May 2016. In Garofolo, the broad question was whether a borrower had a constitutional right to reimbursement of all principal and interest (“forfeiture”) paid pursuant to a home lien per the terms of Section 50(a)(6), and the more limited question was whether under the facts of Wood, the homeowner had a right to forfeiture under a breach of contract claim. In this case, the home loan’s terms required that the creditor provide the debtor with a “release of lien in recordable form,” the debtor notified the creditor she had not received the release, and after 60 days of the notice, she sued for violation of the Constitution and breach. The Supreme Court characterized that the recordable release term was just a provision to make the loan “foreclosure-eligible.” The Court found that the Texas Constitution does not provide independent terms which should be read into the home loans, such that the failure to comply with the term of the Constitution amounted to constitutional violations.

      “[S]ection 50 of the constitution protects the homestead from foreclosure for the payment of debts subject to eight exceptions, one of which covers only those home-equity loans that contain a litany of exacting terms and conditions set forth in the constitution. . . . It simply describes what a home-equity loan must look like if a lender wants the option to foreclose on a homestead upon borrower default. As to constitutional rights, section 50(a) creates but one: freedom from forced sale to satisfy debts other than those described in its exceptions.”
Therefore, constitutional compliance sufficient to provide a creditor with the right to foreclose must be measurable, and the Court state, “[C]ompliance is measured by the loan as it exists at origination and whether it includes the terms and conditions required to be foreclosure-eligible.” Id., citing Sims v. Carrington Mortg. Servs., LLC, 440 S.W.3d 10, 17 n.28 (Tex. 2014). Lenders who violate origination terms and then fail to honor those terms “[have] not violated the constitution.” Id. Post-origination performance is remediable through forfeiture, but forfeiture itself “is just one of the terms and conditions a home-equity loan must include to be foreclosure-eligible.” Id. If a debtor pays the loan off, and the lender fails to produce the recordable release of lien, there is right to forfeiture, because “[s]ection 50(a) simply has no applicability outside foreclosure.” Id. The debtor may bring traditional tort and breach claims. The limited question (whether under her facts the debtor could obtain forfeiture as damages for breach) was answered in the negative as well: she needed to prove actual damages as a predicate to forfeiture. The Court found that, at the end of the loan’s life, the six corrective measures commonly available to redress loan origination infirmities do not apply, not even the refund and offer to refinance under Section 50(a)(6)(Q)(x)(f). Forfeiture as a remedy only kicks in if a creditor “fails to correct the failure to comply,” and the Court found that “correction” requires “actually fixing the problem of which the borrower complains;” the “failure to comply” concerns the “fail[ure] to comply with the lender’s or holder’s obligations under the extension of credit.” Id., quoting Tex. Const. art. XVI, § 50(a)(6)(Q)(x). Forfeiture is only available for failure to correct by taking one of the six available corrective measures laid out in § 50(a)(6)(Q)(x); it is not available for the creditor who opts not to undertake such a measure where those measures will not correct the deficiency. A creditor must determine if the six corrective measures would fix the problem. The borrower in Garofolo thought payment of $1,000.00 and a refinance offer would, as it was the “catch-all” provision, but the Court found in the matter of first impression that with nothing to refinance and nothing to refund, there was no point in undertaking that remedy, so it would not apply.

   In Wood, the Court “conclude[d] that liens securing constitutionally noncompliant home-equity loans are invalid until cured,” and so various legal doctrines kick in, including statute of limitations defenses to counterclaims for breach. In Wood, the borrowers notified the lenders of constitutional compliance issues and brought independent suit, seeking various remedies including a declaratory judgment as to the voidness of the loan and the forfeiture remedy. Under the law at the time, the lenders argued they were entitled to summary judgment due to limitations passing on the borrowers’ claims under the logic that the issues they raised were issues that arose at origination, so bringing suit past the four year period of limitations. While Garofolo constructed section 50(a), Wood constructed section 50(c), and found that all liens are invalid which do not comply with section 50. The Court reminded borrowers that homestead liens may be rendered valid through compliance with any broken term of the Constitution, including refunding certain overcharges as stated in section 50(a)(6)(Q)(x). Wood, discussing Doody v. Ameriquest Mortg. Co., 49 S.W.3d 342, 343-47 (Tex. 2001). “[C]omplying with a cure provision validates a lien securing a section 50(a)(6) extension of credit.” Id., quotations and citations omitted. Interestingly, the Court here observed that the “cure provisions are the sole mechanism to bring a loan into constitutional compliance,” and that a lender may undertake the option to cure at any time, as the lender did in Doody, and that there is no deadline to request cure by a borrower. Note that in the Wood case, the Court expressly refused to deal with the issue as to whether the borrowers’ allegations of noncompliance were accurate at all, only describing the conditionals which would obtain if they were accurate, as the matter was appealed on the question of statute of limitations.

   Neither case dealt with a 736 proceeding, and it seems that it would be impossible to obtain a holding in comportment with the rules articulated in these two cases during a 736 hearing. In this memo, I will further articulate why I think 736 proceedings should not be affected by the holdings in Wood and Garofolo. Annoying opposing counsel will attempt to argue that 736 orders can only issue on valid liens, that the lien is invalid, and for proof they’ll just say that something was missing from the deed of trust. However, loans are rarely self-contained in deeds of trust, but come as part of compliance bundles, including the various disclosures and acknowledgments by the homeowners. (It seems that a loan could incorporate by reference the provisions of Section 50(a), per the Fifth Circuit in the intermediate opinion leading up to the ruling in Garofolo and the Court’s remarks in the opinion.) Opposing counsel will point to the language in Wood and say, “See, liens are only valid if they are compliant with Section 50(a), and until cured, they’re not compliant, so there’s nothing to foreclose in this case because there’s no valid lien.” Now, this is a deceptive argument since a 736 order is not a foreclosure order, but merely permission to proceed with foreclosure, and is furthermore deceitful in that 736 hearings are not amenable to discovery. Tex. R. Civ. P 736.4. However, at least one case has permitted respondents to attempt to attack the loan documents’ validity for purposes of asserting the 736.5 nonpayment response, including an assertion of an improper party defense. See Bormio Investments, Inc. v. Wells Fargo Bank, N.A., 2016 U.S. Dist. LEXIS 14368, *15 ("Rule 736 does not prevent a respondent from asserting a 'defense to the Deed of Trust'” because it "expressly allows a respondent to plead in a response why the respondent is not obligated for payment"). Bormio did not deal with a 736 proceeding, but merely asserted what could be raised in a 736 proceeding as part of dispensing with an argument that 736 curtailed constitutional rights of the debtor. In Bormio, the plaintiff argued that it was not a proper party to the loan, and the court concurred, adding that it could raise party status as a defense to payment of the loan obligation. I have yet to find a case saying that a borrower can raise validity of the lien as a responsive defense, and such a provision is nowhere provided in Rule 736.

   What is a 736 proceeding?
   736 proceedings have been described as no “ordinary lawsuit” but rather a “faster, more streamlined alternative to judicial foreclosure.” Huston v. U.S. Bank Nat’l Ass’n, 359 S.W.3d 679, 682 (Tex. App.–Houston [1st Dist.] 2011). The sole issue in a 736 proceeding is whether a creditor has the right to obtain an order to proceed with foreclosure pursuant to the Rule. See TRCP 735.1 (“Rule 736 provides the procedure for obtaining a court order, when required, to allow foreclosure of a lien containing a power of sale” in particular documents such as a security instrument, “including a lien securing any of the following: a home equity loan . . . under article XVI, section[] 50(a)(6) . . . of the Texas Constitution.”

   In Huston, the bank applied for expedited foreclosure pursuant to Rule 736; the homeowners asserted various defenses through an answer, and then filed a counterclaim, in the same application cause. Subsequently, they filed in a separate suit a declaratory action. The district court hearing the 736 application dismissed the application, together with counterclaim. According to the First District Court of Appeals, answers are not permitted, but responses to applications are allowed. The Court of Appeals was dealing with a previous version of Rule 736, which then had explicitly limited the subject matter of a 736 proceeding to “the right of an applicant to obtain an order to proceed with foreclosure under the security instrument and Tex. Prop. Code § 51.002.” Id. at 682, quoting former Tex. R. Civ. P. 736(7). The court found “no provision for any other determination to be made by a factfinder.” Id., citing former Tex. R. Civ. P. 736(6). Applications should be denied if “the respondent establishes that the applicant has not satisfied any element under the rule.” Id. While the Rule was silent on counterclaims being filed, the Court found that “a counterclaim that attempts to address the underlying merits of the applicant’s conduct–and for which discovery would be necessary–is incongruent with the purposes of a rule 736 proceeding.” Id. at 682-83.

   Respondents’ arguments about lien validity in a 736 proceeding
   How would a party argue lien validity in a 736 proceeding beyond the basic responses listed in Rule 736.5? Lien validity is not listed, only “why the respondent is not obligated for payment of the lien.” Even if the borrower argued the lien was invalid, the lien’s validity is only pertinent for purposes of foreclosure, not for payment.

   In my last 736 hearing, opposing counsel simply shrugged and said “736.5 doesn’t limit my client’s responses just to those five issues.” However, the Rule simply says that a respondent may file a response, which could look like a general denial under Rule 92, but that any response must affirmatively lay out any of those five issues, including obligation to pay the lien. Any “independent claim[s] for relief” are not allowed. Claims for relief are treated in Rules 47 and 48. The previous version of Rule 736 treated in Huston permitted respondents to “file a response setting out as many matters, whether of law or fact, as respondent deems necessary or pertinent to contest the application,” but had to be “made on personal knowledge and shall set forth such facts as would be admissible in evidence.” Rule 736 is not as open for respondents any longer.

   Assuming that a respondent could sneak in issues under Wood and Garofolo into a 736 proceeding on lien validity, and the court found a basis to deny the applications seeking expedited foreclosure, there would appear to be no method at law for a creditor to obtain a 736 order; there is no appeal and no review of such orders, and no reconsideration allowed. Without discovery permitted, and with only a few documents required to be tendered under the 736 application checklist, a creditor would not necessarily be capable of investigating the claims of the debtor regarding constitutionality, and the court would need to examine every clause of the documentation attached to satisfy its curiosity regarding foreclosure-eligibility under section 50(a) and lien validity under section 50(c).

   There also does not appear to be any proper procedure to get this question certified before the Supreme Court, either, except on mandamus, which would require that a court denies relief to a creditor under the Wood / Garofolo holdings and there the trial court have abused its discretion in denying relief and there be no other available remedy on appeal. Proving abuse will be quite difficult as it won’t be easy to establish that the denial of a request for a simpler method of foreclosing the lien occurred arbitrarily or unreasonably, especially if due concerns about lien validity are invoked by the applicant’s materials and the respondent’s response.

   Make your own hypo up to show how dumb it is to do this in a 736 hearing
   In short, you could expect savvy opposing counsel to throw monkey wrenches into the system by arguing lien validity issues, but be prepared to point out the significant limitations of a 736 proceeding and the loan process generally: the required materials for a 736 application are not the entire loan packet, but in addition to an application meeting the requisites, “an affidavit of material facts . . . describing the basis for foreclosure” and “a legible copy of the note, original recorded lien, or pertinent part of a property owners’ association declaration or dedicatory instrument establishing the lien, and current assignment of the lien, if assigned” together with a legible copy of “each notice required to be mailed to any person under applicable law and the loan agreement, contract, or lien sought to be foreclosed before the application was filed and proof of mailing of each notice” (I wrote about this already). Tax lien materials need to be attached as well if it’s a tax lien foreclosure. You will note that Rule 736 does not state to attach every single document containing the pertinent disclosures and acknowledgments of the terms and conditions found in section 50(a)(6). Hypothetically, assume the challenge to the loan was something boring like section 50(a)(6)(M)(I), which requires that the home loan not be closed “before the 12th day after the later of the date that the owner of the homestead submits a loan application to the lender for the extension of credit or the date that the lender provides the owner a copy of the notice prescribed by Subsection (g) of this section.” If respondent shows up and says, “Actually, the loan was closed 11 days after the date we submitted our loan application!” What is a court supposed to do? Conduct a lien validity analysis? How would it find facts to make a ruling? Would it require the parties reduce the fight to questions of competing affidavits? Respondents who enter court arguing that the court should conduct a constitutional analysis of liens for defects are just trying to bog the court down with something that it can’t reasonably do with the materials it’s limited to reviewing.

Wednesday, July 19, 2017

Texas Revival of Dormant Judgments: Service of citation needed with motion to revive? Depends on which court you're in.

Recent lawyering has me considering yet another aspect of civil judgment revivals. Opposing counsel reached out to me in a case and made a lowball offer on a judgment we had recently moved to revive, asserting that we could not prove service of the motion to revive and citation thereon. I chortled to myself: the minority position was being asserted as a defense to me, but it was something to think about; when I first wrote about revivals, I undertook this minority position as the historically accurate one, which you can see here. However, I also edited my first post to reflect that this position was wrong (I looked up dockets on the cases, read historical cases, and conducted a closer examination of Rule 154; I am convinced I am right.)

The opposing counsel's argument ran like this: under the opinion issued in F.D.I.C. v. Bauman, Cause No. 90-CV-0614-H (N.D. Tex. Jul. 30, 2004), it is clear that the Texas Rules of Civil Procedure require service of the motion to revive together with a citation, and proof of service must be done by filing a return.

Before I get into this argument, let’s look at the case language.

Under the Federal Rules of Civil Procedure, the “writ of scire facias” was abolished. See Fed. R. Civ. P. 81(b). To obtain the relief previously provided thereby, parties are invited to commence the “appropriate action or appropriate motion under the practice prescribed in these rules.” Id. Well, what’s the “practice prescribed” for dormant judgments? It’s under Fed. R. Civ. P 69(a), which discusses execution on judgments; you need to follow the practice and procedure of the state in which the district court is held. So for a court in the Northern District of Texas, you turn to the rules and laws of Texas.

Without discussing how motions to revive exactly equal out to scire facias, the court simply determined that Texas law permits “for scire facias to be initiated by a motion to revive judgment.” Id., citing Vackar v. Memorial Bank, No. 01-00-01033-CV, 2002 WL 1303424, at *1, 3 (Tex. App.–Houston [1st Dist.] June 13, 2002). Did the court need to spell out that motions are “scire facias”? Maybe. Tex. Civ. Prac. & Rem. Code § 31.006 provides that dormant judgments may be revived in one of two ways - “by scire facias or by action of the debt” brought within the two-year deadline following dormancy. But I’ve already discussed in my original post how the “scire facias” contemplated in TCPRC § 31.006 is not a true blue writ you serve out, like a writ of garnishment. Why is that? Because all of the appellate opinions treating the concept simply “grant scire facias” after it’s asked for; nothing is served outside of the basic materials, and those materials are served pursuant to Rule 21a like any old motion. Look at the docket for Trad (Harris County No. 1989-03027), which was appealed by the judgment creditor. There is an “Order on Petition for Scire Facias” which denied the relief sought, and was appealed, but note that there is not a “writ of scire facias” issued or served. In the Trad opinion, the court simply frames it like so: “The trial court denied appellants’ petition for scire facias to revive a dormant judgment,” which was in error and the appellate court “grant[ed] appellants’ petition for scire facias, and revive[d] appellants’ dormant judgment.” In the Trad case, the only writ discussed was the writ of execution, which is meaningful for date calculations of the dormancy period. Under the facts of Trad, whether a writ of execution was properly issued was germane to whether their petition to revive was timely, and therefore whether the judgment should be revived. There is no discussion of writs of scire facias; the court concludes, “appellants met the requirements for scire facias” (i.e. interpreting scire facias as the relief sought). In Cadle Co. v. Rollins, 2010 WL 670561, at *1 (Tex. App.–Houston [1st Dist.] Feb. 25, 2010) (not reported), another case I’ve discussed, the judgment creditor “sought to revive the judgment by a writ of scire facias” by a motion to revive. Nothing in the underlying docket for Rollins contemplates a “writ for scire facias” was issued or served; the motion it titled “Judgment Plaintiff’s Motion for Scire Facias to Revive a Judgment” and this was set for hearing.

Okay, so my ears are already perked at the idea that we should read the mere term “scire facias” in TCPRC § 31.006 as equivalent to a “writ of scire facias” as if it’s something to be served out. The term “scire facias” has come to be equivocated to the “order to revive” or revivor. How did the court in Bauman reach a contrary conclusion?

Well, the court said that’s what the TRCP requires! What does the TRCP say about scire facias? Almost nothing, but the court in this case glommed onto this tidbit: “Rule 154 of the Texas Rules of Civil Procedure specifically provides that ‘scire facias and returns thereon . . . shall conform to the requisites of citations and returns thereon, under the provisions of these rules.’” Id. (ellipsis in the original). So that means Rule 99 (citation), 106 (service) and 107 (the return) would apply, under the court’s logic. But take careful note of that deceitful ellipsis, and always take note of ellipsis provided to you by the enemy or the opinion.        

What does Rule 154 really say? It’s found as part of a series of Rules under Section 7 of the TRCP, labeled “Abatement and Discontinuance of Suit.” That doesn’t sound like revival of a dormant judgment, does it?

Rule 150 treats abating lawsuits where parties die before decision or verdict; Rule 151 provides that “the heirs, or the administrator or executor” of a dead plaintiff can be made the plaintiff, but if no one shows up on time to do so, “the clerk upon the application of defendant, his agent or attorney, shall issue a scire facias for the heirs or the administrator or executor” of the dead plaintiff, and “[a]fter service of such scire facias” if no one shows up, the defendant can dismiss the suit. Rule 152? If a defendant dies, “the clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit and upon the returns of such service, the suit shall proceed . . .” What if the executor dies? Rule 153 says “the suit may be continued by or against the person succeeding him in the administrator, or by and against the heirs, upon like proceedings being had as provided in the two preceding rules . . . .” And now we’re at Rule 154, which we already know says “[t]he scire facias and returns thereon, provided for in this section, shall conform to the requisites of citations and the returns thereon. . . .”

Wow, it’s as if nothing in the Rules says anything about revivals being governed by the Rules of Civil Procedure. You see where the court in Bauman cut out that delightful little part about how Rule 154 scire facias and returns thereon need to be served out as “provided in this section [Section 7, about abatement and discontinuance]”? Sneaky, sneaky.

I get the opposition: “but service of notice wasn’t an issue in all these other cases” - that’s because it’s not a fucking issue. You think these guys would just sleep for years on such a tiny, crucial aspect as notice being a statutory requirement for revival in the format of a citation versus a mere paper? Hell, no. The feds just got it wrong.

Bad reading makes bad law but I’ll never be a judge because I believe in justice too much. The Southern District of Texas continued this reign of error with F.D.I.C. v. Davis, No. H-92-3759, citing Bauman favorably.

Motions to revive are governed by Rule 21a, which provides that every “motion . . . required to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise expressly provided in these rules, may be served by delivering a copy to the party to be served” in a variety of ways. Motions to revive are motions. So serve them like regular motions. I’ll never get a revival without a notice of setting and satisfying the court that I noticed the setting properly. This is done by a certificate of service, which “is proof of service” under the Rules. Tex. R. Civ. P. 501.4(d).

If anyone has the chance to set the record straight in the Western or Eastern Districts, or hell, to appeal the N.D. or S.D. if they hold so again when they get a chance, please do. This is bad law.

Wednesday, June 14, 2017

Season 2 reviews - Flaked and F is For Family on Netflix

A review of the overlap in themes between Flaked and F Is for Family.

***

I gave Will Arnett's Netflix show Flaked a shot; Flaked's about a pair of alcoholic buddies,Chip (Arnett) and Dennis (David Sullivan), who dick around Venice Beach trying to get laid and juggle their various friendships with slackers, hipsters and other service industry types. There's an alcoholic cop (George Wisdom) who likes to scare them with his vehicle alarms and lights (a gag that gets old quick). A love interest develops with a newcomer to town named London (Ruth Kearney), and it causes strife in the friendship because they both wanna get their fuck on. Mitchell Hurwitz's delight with puns and double entendre is evident in his co-production of the show, but thankfully the show doesn't indulge in Arrested Development leve of extended inside jokes.

Flaked is not laugh out loud funny, but it's funny in a bleak and miserable way, driven mostly by the sparse writing; season 1 meanders every which way (including a bizarre detour into a spa during a visit to a sexually active gilf). Its strengths lie in the ability of the show to elicit sympathy for the moral failings of the main characters; when people lie, it's usually because they don't want to hurt their friends' feelings; when people commit to satisfying their friends, it's because they fully intend to go through on their promises, but sometimes a pressing interruption pops up they feel they must prioritize. (We see something like this in the finale of season 2 of F is For Family.) Chip doesn't come across as a nymphomaniac, but he is attracted to women and attractive to many women in town, so he plays to this strength; he resides in a bored stupor, harboring secrets, biking lazily around town, venerated as the unofficial Mayor of Venice. He presides over a shop that ostensibly produces three-legged stools (he apparently is a skilled carpenter) but he is unmotivated to sell them, or to change his product line. His friend Dennis is a pudgy admirer of Chip's aesthetic and groove; Dennis just wants to get some but it always seems Chip is there to thwart him. Interrupting this sometimes tedious give/take relationship is their stoner friend Cooler (George Basil), the soul of purity in this town, a man uncomplicated by any deceits and bereft of any ambition.

Where season 1 focused on the bored erotica of alcoholics and the strange network of lies sustaining these characters, season 2 gets into what season 1 should have answered - why do they predicate their relationships on lies? Season 2 forces the audience to analyze where the little white lies end and the self-defining lies begin. Season 1 ends with a revelation that Chip is hiding two major secrets in the first show, one relating to his alcoholism which would affect his relationships and undermine his integrity as an alcoholics' sponsor in the local AA chapter, and another undermining his nominal goodness and weak altruism he has demonstrated through the show. Season 2 picks up months after the end of Season 1; Chip and London cohabit in a transient way with friends because Chip is now pariah in Venice due to his involvement in the inevitable gentrification of the attractive community by using his influence to back a rent-raising hotel, while Dennis has blackmailed an immoral striver from the first season (Chip's ex, played by Heather Graham) for money to open up a shop to sell wine to the new yuppie community displacing the hipsters from season 1.

Season 2 has Chip return to Venice for some reason, presumably to avoid homelessness and in so doing compels him to attempt to patch his relationships he ruined through his lies. Venice is vengeful to Chip and London, though, in the most passive of aggressive ways; people steal sandals and bike seats, and there's a bit in the show where a bike thief leads Chip on fruitless chases. Karel, a cultist (Shawn Hatosy), has moved to town and is beginning to exert influence over women looking to forget their pasts, including London; he is the pseudo-spiritual mirror for what is happening economically to the community, a huckster hawking pricey techniques for burying the past  - the hotel is forcing rent spikes and the exile of community members like Cooler to even more vestigial positions as service industry members, paid servants for the tech class that has taken over the future of the town's riches; everything is forgotten and paved for, and it is paid for dearly. Cooler becomes smitten with newcomer to the show Alex (played by Elisabeth Rohm), an alcoholics' sponsor who promptly (and foolishly) falls for Chip in a way he's guaranteed to disappoint with more white lies that lead to hurt feelings. Dennis falls in love with the cop's daughter (played by Lenora Crichlow), but feels he too must lie to get past first base. Lies in this show are built on commissions and omissions; Chip keeps things to himself, London keeps things to herself, Dennis keeps things to himself - again, only Cooler shines as one free of deceit, a purified presence of stupidity and pot just looking for the right family unit to support with his dependability and devotion.

We don't get much insight into London; she simply exists, looking for solace in Karel's expensive classes of existential forgetfulness. Perhaps this was a problem with the writers struggling to find use for her as a character; where Cooler is offered a chance to transcend from van-dweller to family man touched by fortune, London is simply relegated to an unknown - what does she want to forget? why does she stay with Chip? why doesn't she just go home rather than live this life of moving around friends' houses in an effort to avoid homelessness with her boyfriend? And so forth. There's a chance to answer this that doesn't seem satisfying; Chip and London spend an episode on a weird date stalking a guy they pass on the street, for shits and giggles, and it ends with sex at another woman's house (Chip too horny to act any better) before she leaves for home without telling Chip about her plans, resulting in a predictable finale bait and switch on the audience. The season concludes with an unanswered question that serves as half-answer to another question - what makes an alcoholic that way? For Chip, the real question to ask is - why does he lie so much, and what would it be like if he quit fucking up and just focused on something to better himself? And extending from Chip to the rest of the community, we must ask that of everyone - what use is the lie outside of short-term gains, and will the short-term gains ever be worth it (a theme explored 1000 times in 1000 shows and movies)?

Season 2 doesn't go for laughs; it's a somber stab at people trying to make it in a beloved community suddenly too expensive for them, but the show doesn't deal with the politics of resistance - people roll with the punches or they leave town, and the show misses the opportunity to see how these people could have a kind of communitarian renaissance in light of such economic displacement, or at least examine the futility of such attempts at resistance in the face of the juggernaut of R&D dollars. While the show's flirtation with gentrification is important in light of the economic trials of today for so many Americans, the show just slides past it - and maybe intentionally, a la Bret Easton Ellis's solipsistic maniacs in American Psycho and Glamorama.

***

Season 2 of F Is for Family is miles better than the first season, again thanks to tightened writing and focus on the characters, and also focuses on economic turmoil. The show unfortunately revisits the same old ground, introducing little in the way of new characters or new conflicts; Frank (Bill Burr) is out of a job in 1970s industrial America. His identity is tied to his traditional notions of masculinity (notions that aren't as played out today as many people would have you believe) - if he has no job, then he's an emasculated bum. His wife Sue (Laura Dern) goes to work to make money, but work is the male-dominated office of the Tupperware of this universe, where women are assessed on their ability to withstand sexual harassment. Sue invents a potentially profitable product that is laughed out by her superiors before she collaborates with a coworker and the owner of the company to produce it without the awareness of management. Her potential success threatens Frank's ego, which must be devalued in favor of the financial welfare of the family. Frank's sons deal with their usual nonsense; Bill Murphy (Haley Reinhart) tries to survive the neighbor bully. The show becomes increasingly violent; there are heart attacks, murder attempts, eye wounds, hit and runs; a bit of the good ol' ephebophilia, and consequences of cocaine addiction. There is a curious touch of pseudo-woke racism for the main cast - black guys are okay for the Murphys, but Asians are all smart or out to get America (courtesy of Frank's stint in Korea), but black guys scare the neighbors and talks with radical black revolutionaries fall on deaf ears until a hijacking occurs (a small stab at the Black Lives Matter movement by calling the equivalent BLABLah, which is fine as far st light stabs go).

There is something tired about F Is for Family, and it's about how to make dysfunctional family interesting. The most interesting character to me was the closeted gay husband of one of the neighbor wives, even though his gayness came out in oddly explicit ways (changing room sex while his wife shopped) where the more subtle ways he expressed it were better and funnier.

Frank and his son Bill take up similar jobs in delivery routes; Frank for a villain who pierces rejected condoms he has Frank deliver to airports and the like, and Bill for the local news run by a miscreant voiced by TJ Miller, famous for being a self-interested asshole in Silicon Valley who singlehandedly drives the brunt of the humor in that show. The show doesn't care about morality or consequences; Frank's eldest son Kevin (Justin Long) is forgiven for a neighborly wrong committed against the cocaine-addled, affable Vic (Sam Rockwell) during his attempt to become a (prog) rock god; Bill robs, frames and almost seriously wounds someone in traffic while plotting the murder of another kid in the hood; the local white trash kids return for weird remarks about pissing on zombies (kill these characters off, please) when not ruminating as voyeurs on the beauty of squirrel sex; almost forgotten in the mess is the daughter, Maureen (Debi Derryberry) who just wants a future as a computer engineer; she is the proto-feminist, the Lisa Simpson of the show, who just loves and wants to be loved by her family while having the chance to explore the topics she prefers (an independent streak Frank suspects precedes lesbianism).

It's not that the family is bad or inherently uninteresting - it's just hard to write unique comedy for such a tired setting, the family home, without digging into more interesting aspects. The reliance on the Bob Pogo character (David Koechner) is bizarre - he was the character I wanted to forget the most from season 1, and he returns with his obnoxious, fat-throated voice as a central player to Frank's economic redemption. Like Flaked, F Is for Family flirts with the themes and problems at play with hard times, and gets almost face to face with the filth of it, but defers - Frank fears the permanent blow to his manhood taking unemployment would pose and so works deadbeat jobs to help feed his family while waiting for an opportunity to go back to work for a shitty airline that promises to take advantage of its employees as it did with Frank in Season 1. Masculinity and earnings are inherently tied in to working for exploiters, until Frank has a revelation that what matters more than all of that are the promises we make to our loved ones about how we will treat them. The show rewards Frank in a violent way, cementing it as one of the oddest conclusions in TV history I've seen.


I am looking forward to more Flaked, and I'll give season 3 of F Is for Family a shot but I'm not hopeful the themes it explores will get more interesting; both shows ended at a high point for their characters in terms of realizations of consequences and confessions made to rid themselves of guilt keeping them back from fruiting as human beings. To that extent, these shows have some merit, but again, the idea of getting stuff on your chest is old hat for TV land. Whereas Flaked is for people who are interested in the moral ruin of bored people, F Is for Family is for people who believe in the American Dream, and both shows will have their respective (and mostly mutually exclusive) audiences.

Sunday, June 4, 2017

Don't watch Alien Covenant

First, it's a sequel to Prometheus. Second, it's awful.

It is bad in the most amateur ways of defective storytelling. 

As with most ship crew movies, you run into the problem of trying to get the audience to give a fuck about anyone on the ship. James Franco burns to death in the first 30 seconds. Fassbender has a no-homo gay sex scene with himself. Faith is introduced for the first time as an "element" of the Alien universe, and it's treated with about as much depth or care as a screw on a droid in Star Wars: utterly unremarkable, but there all the time. Everyone dies, and nobody matters. I don't remember anyone's names. I still don't except Weyland and Ripley. Why? Cuz they're cool ass names and are drenched in the lore and story of really good movies, none of which are AvP, Prometheus or Covenant. AvP is not canon anymore, apparently; cuz the aliens were made (?) in this movie, and didn't just come to earth for whatever reason to eat shit in the Amazon.

Oh, you thought Covenant would explore the mythos of the creator species, right? Wrong. The whole mythos of a creator race is undone within seconds when the android just kills them all for some weakly proffered reason - "Mreh I prefer being self-employed!"

The film is weakest at the start. There's about 30 minutes in which this crew just messes around with the ship in one of the more boring sequences yet realized in film history, aping aspects of Gravity but with Danny McBride's hairy ass and not Sandra Bullock's fine bod in space. Who cares? These people are just set pieces for an android fight scene and his crazy experiments. Are we really trying to explain the amazing horror of the original Alien by suggesting an android like Bishop made the aliens...? Out of humans? To just kill everything? Why build a murder species? Who cares? Welcome to the movie.


Covenant is not a movie about people. It's a movie about an android, which is always lame. No one gives a fuck about robots, guys. It's called the uncanny valley. We know they're not like us, so we're happy to see them get ripped apart. What about the story from the last movie, which could have been salvaged with an interesting movie about tracking Weyland down to the war depot from Prometheus and then follow the trail to the creator world? Weyland is an ungodly rich human who tried to find immortality on another planet they had a map to (and probably camera tech relaying to Earth).

No. Earth just sends a colony ship out to some other planet. Trouble ensues. Some people are married. Then they die. Who cares. Some are white. Some are black. Everyone dies, so relationships don't matter. People do dumb things like ignore quarantine protocol, follow androids into alien necropolises and not go crazy trying to explore the place before they're hunted and killed by alien beasts the android is trying to tame into riding or something.

Seppuku please, Fox. Have mercy on people who watch movies and some honor for yourselves.

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.