"Enhanced"

The electronic sign over I-394 just a half mile here from my office says “Enhanced DWI Enforcement Thru Jan 1.” I don’t think they’re kidding.

“Enhanced” according to the old hard-bound dictionary on my desk means “to make greater” or to raise, intensify or heighten. It seems to be a term that is used a lot in connection with DWI. For example, if you have a second offense within ten years, that second offense is “enhanced” because of the first. Please remember that taxi cabs are really cheap compared to the cost of being arrested.

As I think I have mentioned earlier, I am noticing that the fact that one is considering or working on filing a bankruptcy seems to enhance to possibility of either being arrested for DWI or being injured in a serious accident. If you should happen to have bankruptcy on your mind, please keep a proper perspective. Focus on what you are doing, when you are doing it. It’s only money. You have more reason now than ever to properly care for yourself – including making sure that whatever you consume is in moderation.

The Case for Santa Claus

Twas the day before Christmas, and my phone has finally quit the constant ringing. Yesterday was another story. Even that close to the holiday, there were lots of interruptions. To all who may be reading this, I wish you a Merry Christmas and a Happy Hanukkah. I am going to make an effort for at least the next 48 hours to enjoy these holidays. It’s not that easy after all the sad stories I have been hearing. It is nonetheless my intent to do so.

I think that I still have somewhere within me a little bit of the wonder that was there when I was a small child surrounded by all the holiday hoopla and regalia, expecting a visit from Santa Claus. It’s not that I still believe in Santa Claus; but except for the scene in Miracle on 34th Street, he’s never been accorded his right to a trial by jury. Even in that movie if I recall correctly, the judge dismissed the charges without letting the jury make a decision. It seems to me that Santa Claus should be accorded the presumption of existence until proven to not exist beyond a reasonable doubt. I don’t really believe, but I have to admit that he has not ever been proven to not exist beyond a reasonable doubt. That’s a tough standard, and it has not been met. In fact, any student of logic will tell you that it is impossible to prove a negative. Thus it is a safe bet that Santa’s nonexistence can never and will never be proven – at least not with evidence that’s admissible in court.

I just checked the NORAD web site, where there is a special page for tracking Santa. In fact at the moment I am writing this NORAD says they have Santa on radar over Dhaka, Bangladesh. Looks real to me, or at least I can’t prove it’s not.

Summoned for jury duty

I have received a summons to show up for jury duty on December 29th — downtown at the Hennepin County Government Center. The people who run the program tell me that I can arrange to check in by telephone to see if they need me. This apparently, however, can only be done after I at least show up in person on the first day.

Not long ago I commented to one of the court clerks that I supposed that the week of New Years Eve and New Years Day would be a slow week for jury trials. She laughed at me and said the opposite was the case. Apparently that week is loaded up with jury trials by people who didn’t want to have the trial Christmas week.

When I first received the summons I called in and got a hold of one of the supervisors. I had lots of excuses, not the least of which was that I have served as a referee in the Hennepin County settlement and arbitration programs. I have worn a black robe, sat at the big desk in front of the courtroom and have been called “your honor.” “So what”‘ was the response. They have required retired district court judges to serve. There is an exception for judges who are actually on duty as judges, but that of course would not apply to me.

I anticipate having more to say on this topic as the situation unfolds.

Why you don’t want to get a second Minnesota DWI

It’s dark and it’s cold in Minnesota and the holidays are upon us. This means my phone is about to ring, and on the other end of the line will be someone who just got arrested for the second time in ten years for driving while impaired (DWI).

The consequences of a second alcohol related driving offense are quite harsh, and it seems to me that they come as quite a surprise to many. The punishments for a first offense are quite light by comparison, particularly if your lawyer did a good job. Sometimes that’s one of the things I worry about when I have gotten a particularly good outcome for a client: that my client won’t realize how serious this could have been, and will therefore be more likely to offend again.

The first offense is usually a misdemeanor punishable by a $1,000 fine or 90 days in jail or both, unless there was some aggravating factor. The most common aggravating factors are having a breath test reading of over .20 or having a minor child in the car, and having such a factor could result in even a first offense being a gross misdemeanor. The second offense in ten years, however, is always at least a gross misdemeanor – punishable by $3,000 or a year in jail or both. If you continue to accumulate alcohol-related driving offenses, the fourth one in a ten year period can be a felony – and could involve a trip to Stillwater State Prison. The legalese for this process is “enhancement.” Each offense enhances the next.

Along with increased criminal penalties, the time one goes without being able to drive keeps getting extended for longer periods with each offense. After a third offense drivers are often classified as “inimical to public safety,” which is like becoming a second class citizen who will not be allowed to drive for several years if ever again.

You’d think the foregoing would be enough, but it’s not necessarily the worst of it. For many the most embarrassing thing for a second time offender is that he or she is issued special license plates — called “whisky plates” because they often start with the letters “WX.” It usually seems that lots of fellow employees in the employee parking lot know what that means, particularly if the person who has the special plates happens to be the boss.

Perhaps the worst thing is what happens to the car the offender is driving when it’s a second offense with one of those aggravating factors – such as testing above .20. In that event the police seize that vehicle. Forever in most cases. There are some limited circumstances under which the car can be recovered by the owner; but most of the time that car is gone and stays gone. If the car belongs to the driver’s wife, mother, husband, girlfriend, aunt, uncle or employer, the state does not care. Unless the owner can show that the driver did not have permission to drive that vehicle, it usually makes no difference that it belongs to someone else.

For those who wish to try to get the vehicle back, the seizure has to be challenged with a petition filed in district court; and the time allowed for doing so is very short. Winning such challenges is not easy.

In other words, if you happen to already have a first DWI offense on your record, you absolutely must not let that happen again.

National Guard and Reservist Debt Relief Act

One of the things Congress did before going home was pass the “National Guard and Reservists Debt Relief Act.” I haven’t heard if the President has signed it, but it seems to me he must. This law would exempt certain members of the armed forces from the means test if a bankruptcy petition is filed within 540 days after they complete active duty. I would hope that the same rule would apply WHILE they are on active duty.

I’m glad to see this law being passed. However, I doubt it has much real effect because almost all of these folks would qualify for bankruptcy anyway.

Don’t Panic!

Just a word or two of warning. I am seeing lots of people who are in a panic. They are in the process of losing their homes or jobs or both. The daily news offers little or no comfort. All the “bailout” talk doesn’t include any concrete help for individuals that I can see. This state of mind increases the probability of being in a serious accident or incident. Or such is my personal observation.

I mentioned this in passing while meeting with clients recently. The next time they came in they greeted me as “Nostradamus” – comparing me to the Sixteenth Century prophet or wizard. The type of thing I was talking about had happened to one of them. Sorry about being vague as to exactly what happened, but I need to not break confidentiality. I expressed the hope that it had not been the power of suggestion – the result of an idea that had been planted by me. They were sure it was not.

I bring this up here because I really want to say that I believe we all need to keep the events of the past year or two in perspective. The Romans had a saying – THIS TOO SHALL PASS. It’s a universal truth, and I’m convinced that it certainly applies to our present economic climate. Panic and anxiety always just makes any problem worse. The harder and more difficult times are, the more important it is to take care or yourself. One of my favorite slogans – prominent in a lot of the self-help literature – is abbreviated as “HALT” – don’t let yourself get too Hungry, Angry, Lonely or Tired. A good concept to keep in mind when going through a bankruptcy or any other crisis.

On several of my web pages I talk about how easy it is go get ahold of me. I wrote most of that a couple of years ago. It has become untrue over the past few months, for which I apologize. Between the clients and the creditors of clients, my voice mail box often fills up. My goal has always been to return my calls within 24 hours. I have of late been unable to be that prompt. If you need me and don’t get me right away, keep trying please. I am around and I do want to talk with you; it’s just that things are really busy right now. I would say that it’s more busy than it was in 2005 right before the new bankruptcy law went into effect.

Correction: I’ll be back in the office on Thursday September 18th!

How embarrassing!

It has come to my attention that the message on my answering machine at my office says that I will be out of town until “Thursday September 19th.” Obviously that is wrong, because Thursday is the 18th and the 19th is Friday.

It should say that I will be back on “Thursday September 18th.” I’m at Grand Marais for a few days, and I would change that message from here if I could – but it’s not that kind of machine. I can’t change the message without being there.

So just please be advised that I intend to be in the office again starting on Thursday the 18th of September. I suppose I’ll try to call everyone who is on my schedule that day to make sure they are not confused by the message. The names and phone numbers should be here with me on my Palm Pilot.

The fact that I made that error tends to support the proposition that I really needed a couple of days off.

It was a chilly and misty day today at Grand Marais. Not good for outdoor activities. I spent several hours with my wife sipping premium coffee at the Java Moose, and reading an edition of Carl Sandburg’s biography of Abraham Lincoln. I’ve been working on that book off and on for years. It’s slow going, very intense and detail filled. I’m still only about half way through.

This evening the sky began to clear and we were able to watch the full moon rise over the harbor, while having dinner at the Angry Trout. It was very beautiful. Tomorrow is supposed to be warmer and sunny. For tonight we are snug and comfortable in our little pop-up camper.

September 10th and 11th

I’m working late here in the office this September 11th evening. It was a funky day, seven years after the big attack on our country. I was wall to wall all day with appointments, and the phone rang constantly. I finally gave up on the phone. I just could not keep up. I don’t think that’s ever happened before. Strangely, only about one caller in ten actually leaves a message. I have managed to call most of them back, but I really wonder about the others. If it was important enough to call in the first place, then why no message?

I have to share this with you all. While September 11th is a sad anniversary, so is September 10th. On that day in 1897 a taxi driver in London, England, became the first person in the world ever to be arrested for drunk driving — after slamming his vehicle into a building.

If I at all can I would like to get to the north shore for a peek at some fall colors. I might run away and try it this weekend. I’m up to date with most of my work. I can’t keep up with the calls in any event, and staying home would not fix that. These are the most desperate times I have seen in my lifetime; but I’ll be able to help more people if I take care of myself. I keep telling my kids: when the plane loses pressure and the oxygen masks come down, put the mask on yourself first. Then put the mask on your children or others who are in your care. The person who is first to pass out is no longer able to help others.

Consumer Bankruptcy Up 48% in July

A few weeks ago I bookmarked an article posted on Twin Cities Daily Planet which indicated that bankrupty filings in Minnesota are up almost 30% for May and June of 2008 as compared to May and June of 2007. I thought it has seemed to be pretty busy around here, but I still thought the percentage was surprisingly high. Had someone told me in January of 2006, right after the “reform” legislation had gone into effect that this was going to happen, I don’t think I would have believed it. The standard wisdom at that time was that bankruptcy lawyers might be about out of business. In fact, many lawyers quit practicing bankruptcy law at that time. The new law was called BAPCPA (Bankruptcy Abuse Prevention and Consumer Protection Act). In my opinion, the only abuse that was going on was that perpetrated by the credit industry, and the only protection provided was for them and not consumers.

Earlier this week I received a copy of Consumer Bankruptcy News, one of those old fashioned publications that is still printed on paper. In the lower right corner of page 7 was an item stating that nation-wide bankruptcy filings were up 48% in July 2008 as compared to July 2007. There were 94,124 consumer filings in July and 82,770 in June this year. That would be as if everybody in Bloomington, Minnesota and in Duluth Minnesota combined had filed for bankruptcy in June or July. If that keeps up, I would assume that for August it would be as if everybody in Rochester, Minnesota had filed for bankruptcy.

If you should feel a need to come see me to talk bankruptcy, there’s sure no reason to feel alone.

Short Sales Revisited

For several months I have had a video posted at YouTube entitled “The Trouble with Short Sales.” Of all the videos I have posted, this is the one I get the most flack about – mostly from Realtors who are in the short sale business. My experience of this past week emphasizes how right I am about short sales in Minnesota usually being a really bad deal. If anything, my video understates the case.

A client of mine came to me for help with making a short sale work. I advised that it was likely to be a serious problem, but she wanted to try it anyway. For better mental health and possibly better credit among other reasons, she wanted this house out of her life. A buyer was found, and after a few months the mortgage company indicated – in a rather vague letter of intent – that they were ready to complete the short sale. Getting a real person on the phone from the mortgage company was nearly impossible; and when it was possible to get a real person, it was never anybody who could answer a question or make a decision.

I finally was able to speak with the closer who was going to handle the paperwork for the transaction. She indicated that most of the lenders she dealt with were very clear that they intended to reserve the right to come after the seller for the remaining balance owing on the mortgage, even though the house was being sold. The paperwork for the transaction involving my client did not explicitly say that the lender would be suing my client later, but it didn’t say the lender would not be either. The only release that my client could expect to get would be one that released the house only. There would be no release of personal liability.

This was a situation involving only one mortgage. In those situations in the State of Minnesota, the most common method of foreclosure is “foreclosure by advertisement.” When advertisement is the method, the lender gets the house, but that’s all the lender gets. The home owner is off the hook. That means that my client was presented with the following choice:

  1. Either do a short sale and expect to get sued for the remaining unpaid balance of the mortgage; or
  2. Wait for the lender to foreclose and lose the house without getting sued for anything.

The second choice is obviously better than the first. In both choices the house is lost, but with the second choice at least they don’t come after you for more money afterwards. It would have made a lot of sense for the mortgage lender to provide a personal release of liability so that my client could have completed the short sale. Now it will take the mortgage company another year of so and considerable expense to conduct the foreclosure. The house will probably go down in value during that time too. But in letters and calls to the mortgage company, I never seemed to be able to get any body’s attention with this information.

This aspect of Minnesota foreclosure law is unusual. There are only seven other states as far as I know that have similar laws. The mortgage company does business in all 50 states, and follows a one size fits all policy line for everything. Their policy might make sense in most states, but not in Minnesota. They hurt themselves by being that way, but nobody seems to care.

For a short time this week I was excited because I thought I was seeing some signs that I might be able to make the short sale idea work. What it was going to take, of course, was a release of personal liability. By Thursday afternoon, however, it was quite clear that was not going to happen. It was time to back out of the deal, cancel the purchase agreement, and wait for a “foreclosure by advertisement.”