The Mediator Who Wasn’t

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He came late.

The mediation was all set to begin at 9:30 a.m. But by 9:00 a.m. there was no sign of the mediator. The plaintiff was present with two attorneys. The defendant was present with two attorneys. Everything was all set to go – but no mediator.

At 9:00 a.m. I grew concerned. Where was the mediator? I called his office. No answer. I checked my email. Nothing. No text from him either.

What to do? I couldn’t reach him, had no idea where he was, assumed he was coming but didn’t know for sure. The parties had exchanged briefs a week before and held a pre-mediation phone conference. But now the mediation was ready to start without a mediator.

Finally at 9:20 a.m. I called another local mediator to see if he could serve as backup and do a mediation on 10 minutes’ notice. No luck – he was in joint session with a large group. If my mediator didn’t show up soon, I was going to have to do some quick thinking.

Finally, while I was on the phone with the other mediator’s office our mediator showed up – five minutes late. Why didn’t he call? Why didn’t he take my call when I tried to reach him earlier that morning?

We started the joint session and the mediator began asking questions. I was floored. He was asking questions about everything in my brief. After several minutes I realized he hadn’t read my brief – not at all. We then spent the next hour (in joint session) educating him about all of the points in my brief.

After he got his arms around the issues, the mediator started asking questions. He didn’t walk on eggshells. He dove right in and started asking pointed questions about sensitive issues –issues I’d just as soon not discuss in front of the other side. He drove right through the sensitive issues in my case and started making comments and observations in front of everybody in joint session.

Why would he do such a thing? Here we were at the start of the mediation and he was empowering the other side. How did he ever hope to convince them to take less when he was spending precious time in joint session driving roughshod over the weaker, more sensitive parts of my case and emboldening the plaintiff? In reality, I think he was pleased with himself that he had accurately identified the weaker parts of my case. I think he felt he was really getting somewhere. It all happened so fast that it was difficult to put an abrupt end to the joint session –I did not want to appear to be concerned about the questions he was asking. And then he did the same thing to the other side – probing the weaker parts of their case in joint session. I don’t think it even occurred to him that he was encouraging both sides to dig in to their respective positions.

We broke for caucus. Within an hour our mediator told me he felt the parties would shortly be at impasse. No surprise there. He had just spent the last hour in joint session entrenching the parties into their respective positions.

Why would a mediator do such a thing? This mediator came well-recommended. Why would he think such an approach would persuade either party to move off their respective positions? He was a seasoned attorney with decades of experience.

Effective mediators don’t encourage the parties to dig in. They use tools of risk, cost and uncertainty to help the parties see that a negotiated result gives them power over the outcome of a case. Skillful mediators look for hidden values and priorities that serve as powerful tools in helping parties re-evaluate their positions.

Our case didn’t settle. Would it have settled with a mediator who skillfully probed the client values and explored alternative options in caucus? I believe so. The day wasn’t entirely wasted because the parties learned more about each other’s “dig-in” points. But was it an optimal mediation? Not at all. With even a marginal degree of mediator skill, this case should have settled.

The upshot from this experience? We were reminded (once again) that a mediator’s skills are critical to mediation success.


The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter. Persons with legal issues or matters should consult competent legal counsel.

Robert B. Jacobs is a mediator and arbitrator in the San Francisco Bay Area. He mediates cases throughout California. Reach him at Bob7@RBJLaw.com

The Younger Crowd

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My kids are all grown. They all have their own children. It’s been a few years since we had children living at home. But these days our yard is often strewn with plastic toys. After dinner we have lots of small bits of food on the floor and we once again have car seats in our car.

One of my daughters has come back to live with us – this time with her husband and three young children. With the current shelter-in-place orders, I’m spending a lot more time at home these days.

Frankly, I’d forgotten what it’s like. Life had gotten quiet over the past several years – and I’d grown accustomed to it. Things stay put where you leave them. No Cheerios on the floor. No sudden bangs from objects crashing to the floor. No raised voices of protest, objection or indignation.

I’d forgotten what it’s like. Then overnight everything was back as before. Except this time it’s different. After our own children grew up I went through mediator training. As a result I’ve developed a deeper sense of dispute resolution; of power and negotiation. I’ve now mediated scores of cases. And this time around I see the noise, the howling, the crying, and the frustration through new eyes. It’s not all bad. My new young citizens are learning the art of negotiation and dispute resolution first hand (and in a safe environment).

It’s a fascinating exercise. I see these young people (my grandchildren) using available tools to get what they want. Their actions are a study in power and control. What they lack in size they make up in volume, tenacity and energy. I sometimes see them weaponize their voices. If they feel they have no say in a matter they will level the playing field by using volume – instantly. Prized objects sometimes become the subject of carefully orchestrated negotiation. People (both children and adults) are played off each other. These children are unbelievably affectionate. But they are also becoming skilled negotiators. They use charm and their available power so interchangeably it’s almost like an alternating current. They are learning motivation techniques, value identification and how to push buttons. It’s truly a study in power (and human dynamics).

One of my grandchildren recently asked me for an item (but they asked me in an unpleasant tone). I responded that I’d be happy to comply with their request if they asked me nicely. The response was instant and rather than asking in a nice, pleasant tone of voice they turned to their father and made the same request.

Fascinating. I was ready, willing and able to give them what they wanted. But they wanted it on their own terms – and rather than submit to my terms (i.e. asking in a nice tone of voice) they tested their available power with another adult who might provide them with what they wanted (without having to submit to my terms). It was a complete microcosm of human relationships – and a study in power.

The outfall of all this has not escaped me. Sometimes I mediate probate or trust disputes where children have grown up. A mediator might think that child-era relationships in a grown family would have been superseded by intervening adult relationships – but this isn’t always so. Many of the family dynamics that existed decades ago when people were young are still fully present in these mediations. With my grandchildren under foot I sometimes feel like I’m watching relationships form in real time that will be played out over a lifetime.

Nothing is more fascinating than the people around us. It’s easy to think that children are lesser citizens because they lack power. Not so. I see them skillfully identify and use available human relationship tools every day. They act rationally, capably and intelligently (if we don’ squelch them because of own power). I recognize that their soft spots (sugar and television) may be more pronounced than with some adults – but that doesn’t detract from the brilliance of these young citizens. They are fully skilled and capable within their own orbits – even at two years old and watching them observe, capture and then shape their world is not only a study in power – it’s a study in joy.

Robert B. Jacobs mediates business, real estate, construction, personal injury, probate and trust cases throughout California. He is a designated SuperLawyer. He holds an AV rating with Martindale Hubble and is serving as the chair of the Contra Costa County ADR section and the co-chair of the Alameda County ADR section. Reach him at Bob7@RBJLaw.com.

A Christmas Gift

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            One of my favorite Christmas movies is “Miracle on 34th Street.”  In that movie, a little girl wishes for some family togetherness that she just doesn’t think will ever happen.  But after she meets Kris Kringle, she gets the togetherness she was looking for.  After she receives what she hoped for, the family drives out to the suburbs where a real estate agent meets them and provides them with keys to a wonderful home that is fully furnished. It’s a gift from Kris Kringle.

            A big part of the movie concerns the motives – and actions – of corporate America during the Holiday Season.  In the movie, some of the big Christmas retailers seemed to have big hearts, others less so.  It’s a wonderful Christmas show, but at the end it can seem like there’s nothing more – and that this is just a “feel good” movie.  But there’s more to Christmas – and similar Holidays – than just the shopping that goes on. And the good things that happen during the Holidays aren’t limited to just Holiday movies.

            Several years ago, I got to wrap presents for underprivileged children.  Some local real estate agents had identified underprivileged children who could use a hand-up.  They had contacted families, purchased gifts, and brought them to a central location where a small army of us wielded scissors, tape, ribbons and bows and wrapped up a big group of gifts for these youngsters. It brought out the best in us – a free gift of time to bless someone else whom we’ll never know and never meet.

            That year I also had the choice opportunity to work with a group of young men ages 12-15.  There were six of them, and I was assigned to help them shop on a sub-for-santa basis for a young girl who wears size 7 pants who needed “warm clothes or a jacket.”

            We drove over to Target with our six young men and two adult leaders.  We got into the store, and an experienced sales associate immediately saw our plight.  “Do you need some help?” she asked.  “Yes,” I said, “a lot of it.”  I explained to her what we were doing and who we were shopping for.  “Come with me” she said, and she took us over to the girls section, where none of us had ever been before.  She started helping us find the few meager warm clothes that were on display – some thin sweatshirt tops and pants, nothing that looked very warm.  “These are all on sale,” she said, “thirty percent off.”  My young men had a $40 budget to work with.

            I spied a single rack of good looking jackets – some pink, some lavender with purple accents – heavy, thick and warm.  “How about these?”  I asked “are these on sale too?”  The listed pricing was over our budget.  Our sales associate said “Let me see” and she left us to keep shopping.  She was gone a long time.  She eventually returned with a more senior sales associate.

            I pointed to one of the jackets and asked “Is this on sale too?”  The senior associate looked for sale or discount information, but couldn’t find any.  “Yes,” she said, “this jacket is on sale too.”

            “But no,” the junior associate said, “I rang it up. It didn’t show any sales discount.”

            The senior associate eyed us carefully. She knew what we were up to. If we didn’t get this coat, then our sub-for-santa recipient would get a few smaller things, less warm and thin.  “Yes,” she said, “these jackets are on sale.  For you, they are on sale tonight.”

            I asked my boys “What do you think?  This girl needs something warm.  Should we get some smaller, thinner sweats, or something that will keep her really warm on cold nights outdoors?

            The vote was unanimous.  We chose the coat.

            “Come with me,” said the junior associate, “I’ll make sure you get your discount.”  She took us over to the jewelry register which was vacant, and rang us up.  The total with tax was $39.97 – nearly all of our allocated budget.  Three cents to spare.

            We took the coat back to a central location, where we wrapped it.  We don’t know the girl who got it.  And we don’t know what her situation was.  But somewhere, there was a little girl who was very, very happy on Christmas morning when she unwrapped a warm lavender coat with purple accents. And she wasn’t the only one who was helped: our opportunity to serve this unknown little girl was also a joy and a blessing to my six boys and myself. It’s a big part of what Christmas is all about.

Unreasonable Music

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As defined by Webster’s II New College Dictionary, the word “nuisance” means “something that is inconvenient or vexatious: bother.”  That’s a concept that’s easily understood – when something (or someone) is a nuisance, then there’s an annoyance, or a bother.

But there’s a slightly different meaning in the law.  Webster’s also notes that in a legal context, a “nuisance” is “a use of property or course of conduct that interferes with the legal rights of others by causing damage, annoyance, or inconvenience.”

These two definitions are the only two definitions of the word “nuisance” that is given in Webster’s II New College Dictionary.

There are many kinds of dictionaries.  In addition to dictionaries of English words (such as Webster’s) there are also dictionaries that define and describe specialty words.  For example, Means Illustratrated Construction Dictionary gives definitions (and pictures) of many different kinds of construction terms.  And it’s possible for anyone to purchase Mosby’s Dictionary of Medicine, Nursing & Health Professions.

There are also Legal Dictionaries that define legal terms, words and phrases.  One of these is Black’s Law Dictionary (seventh edition).  Black’s definitions of “nuisance” occupies more than a one and a half pages of text.  That’s a fairly clear indicator that “nuisance” is a concept that is pretty well developed in the law.  Black’s defines “nuisance” as “A condition or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property.  Black’s notes that a “nuisance” isn’t necessarily something that is offensive to all people.  For example, Black’s cites a United States Supreme Court case from 1926 for an example of a nuisance: “A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”  But Black’s also observes that the concept of “nuisance” has a wide range of applications.  “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’  It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.” (The original source of this statement is a famous legal work entitled “Prosser and Keeton on the Law of Torts §86, at 616.”)

The concept of “nuisance” is not new.  It’s been around for many, many years.  In an entertaining case from 1939, a New York court described as follows one particular case of nuisance “Claremont Inn, at 124th Street and Riverside Drive, is an old institution rich in historical incident. Acquired by the City in 1872, it has been under the jurisdiction of the Park Department, leased at various times to private persons to conduct as a place of refreshment. Renovated in 1934, it was converted from an expensive to a popular establishment. It consists of an indoor restaurant and bar and also a large outdoor pavilion with an outdoor modern dance orchestra. The outdoor section is open from about June 1st to the end of September. And the band plays from 7 P. M. to 1 A. M. (on Saturdays and holidays to 2 A. M.). It is noteworthy that this is the only open air dance orchestra in a residential section in any part of the City.”

The neighbors filed a lawsuit, asking the New York Court to order the Inn to close earlier each night due to “loud music, excessive noise, heedless conduct of its operators and boisterous behavior of its patrons.”  The court noted that “Assurances have been given for the correction of many of the offending practices, such as rehearsals of the orchestra at 3 A. M.; the removal of refuse cans, and deliveries by tradespeople, with attendant clatter and rumbling of trucks, early in the morning; and congested traffic and parking, with resulting clamor and shouting, when the patrons of the Inn depart. But the defendants insist upon continuing the outdoor band to the hours above specified—and the residents of the district, claiming that their sleep is disturbed, insist on an earlier hour.”  The case is reported as Peters v. Moses (1939) 12 N.Y.S.2d 735.

This was evidently quite an event each evening.  The outdoor dance floor was located in a residential neighborhood.  The dance band held rehearsals at 3 a.m.  The band played until 1:00 a.m. each evening, except for weekends when it played until 2:00 a.m.  With all of the noise, disturbance, and clamour of an outdoor dance, the neighboring residents were understandably up in arms.

Open House Has Surprising Result

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            On any given summer weekend, it’s possible to drive around suburban neighborhoods and see realtor signs out on the sidewalk.  It’s a known fact: Realtors hold open houses.  These open houses can be a great opportunity for buyers of real estate to check out a neighborhood, check out a potential new home, or even check out a realtor.  No appointment is necessary – all you have to do is get in a car, find an area you like and start driving.  If you’re lucky, you might even score some refreshments.

The history of theft, fraud, and abuse is as old as mankind.  Stories of theft, fraud and abuse go all the way back to the earliest recorded histories.  So it’s no surprise that sometimes people come up with new ways of doing an old thing – which is trying to get something for nothing; an effort to get something without working for it and without paying for it.  The problem is, people who try to make a fast buck illegally often underestimate the true costs of such activities – the emotional drain they experience from working outside the law, the risk and fear of getting caught, always looking over their shoulder, and then ultimately the consequences if and when they do get caught. It’s just bad every which way.

In the old days, Burglary was sometimes defined as breaking and entering into another’s dwelling at night with the intent to commit a felony.  The modern law is usually not so limited.  Burglary is no longer usually limited to an entry at night, and Burglary is generally no longer limited to entry into residential properties.  Therefore, an unauthorized entry into a commercial property with an intent to commit any larceny (i.e. theft) or with an intent to commit any felony can qualify as burglary.  Most people probably think of a burglar as someone who unlawfully enters into a property with the intent to steal something.  This might be the most common result of burglary – a theft of something — but a burglary can also exist where there’s an intent to commit any felony.

Differing degrees of burglary exist.  First degree burglary generally includes burglary of an inhabited dwelling house, or an inhabited floating home, or an inhabited trailer coach, or the portion of any building which is inhabited.  Second degree burglary is any burglary which is not first degree burglary.  There’s a long history in the development of the law concerning burglary.  These definitions aren’t the full story concerning burglary – but they are a starting point.

It seems that in June of 2010, a realtor was holding an open house in California.  Two individuals attended the open house.  Once inside the property being shown, the individuals split up.  One of the individuals spoke with the realtor for several minutes, and the other disappeared for a few minutes inside the property.

After the individuals left the house, the realtor realized her wallet was missing. Her wallet contained several credit cards, a gift certificate, and a lottery ticket.  The realtor looked about the property and her car for her wallet, and contacted her roommate at home to see if she had left the purse at home.  She couldn’t locate the wallet, and so she called the police.

An on-duty police Sergeant heard the radio dispatch about the stolen wallet while he was out working in the field.  He spotted a pickup truck that matched the description from the dispatch.  He made a traffic stop, searched the pickup truck and found the realtor’s credit cards in between the seats.  The realtor made a positive identification of the persons in the pickup truck.

One of the suspects was charged, and after trial was convicted, of first degree residential burglary, second degree commercial burglary and fraudulently using an access card.  On appeal, this individual claimed, among other things, that he was not guilty of first degree residential burglary because the occupants of the house were not present at the home at the time he was there.  He argued that first degree burglary can only exist for a dwelling which is occupied, and that because the residents weren’t there at the time of the open house, the property wasn’t “inhabited.”

The court of appeal disagreed, and found that the property was “inhabited” but that the occupants were “temporarily absent” at the time of the open house.  The court of appeal affirmed the judgment of conviction.

The single theft of the wallet from inside a residential property resulted in the individual being convicted of three crimes, one of which was first degree residential burglary.  It was a high price to pay for stealing a wallet.  The defendant was sentenced to 21 years and 4 months.

The case is reported as People v. Little (2012) DJDAR 7965.

This article only summarizes some of the main points of this case.  The complete facts and law involved in this case are more detailed and complex than those summarized here.  Nothing in this article should be relied on in any specific situation, because the considerations in any specific situation may require different considerations or may provide a different result.  Persons with questions or issues concerning the legal issues raised in this column should consult competent legal counsel.

Pirate Ship Sails On

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            Several years ago, we visited the Paramount Theater in Oakland, California where I saw for the first time “The Black Pirate” starring Douglas Fairbanks.  The film was released in 1926. It was a “silent” movie that had been filmed in black and white.  While we watched the film, “The Mighty Wurlitzer” organ was played by a superbly talented organist. The “Wurlitzer” supplied all of the music that was necessary to accentuate the drama, excitement, and emotion that accompanied the film.

The film is about a young man who swears to avenge his father’s death against the band of pirates who were responsible.  Douglas Fairbanks infiltrates the pirate band, and eventually makes good on his promise of revenge.

After the movie was over, I called my own father to give him a report of the movie.  I thought that we had discovered something new with this movie.  After I said that we had just finished watching “The Black Pirate,” my father took me completely by surprise by describing in glowing terms a dramatic scene where Douglas Fairbanks leaps from the mast of the ship, plunges a knife into the sail, and slides completely down the sail to the deck, using the drag from the tearing mast to slow his descent.

I never knew my father to go back and watch old movies.  My father was born in 1918 and The Black Pirate was released when he was only 8 years old.  This meant that my father probably remembered this thrilling scene from his own boyhood, when as an impressionable 8 year old he saw The Black Pirate in a theater at the time it was first released.  He had remembered that scene for some 70 years, and recounted it to me after I told him we had seen the film.

Eight year old boys are impressionable.  No doubt about it.

News reports in recent years have shown that piracy has been a continuing problem in some parts of the world.  But it’s unlikely that most people are likely to ever have much interaction with piracy – unless they happen to run across the “BLACK PRINCE” (which “BLACK PRINCE” has no connection with the “Black Pirate” movie described above).

It seems that a company in Maine owned a vessel known as the “BLACK PRINCE.” It was “designed to resemble a pirate ship and to carry passengers on pirate-themed excursions.”  This company in Maine leased the BLACK PRINCE to a separate company that was headquartered in Florida.

The Florida company had the BLACK PRINCE transported to Florida via truck (it makes you wonder why they just didn’t sail the ship from Maine to Florida under its own power.  Perhaps pirate ships aren’t well-received these days along the eastern seaboard).  After the ship arrived in Florida, the United States Coast Guard performed an inspection, and found that the ship was powered by an outboard engine supplied by gas fuel tanks.  The Coast Goard issued a certificate of inspection that prevented the use of “open flames” aboard the BLACK PRINCE.

When it was sailing in Maine, the BLACK PRINCE periodically fired a “yacht signal cannon” as part of its “pirate theme excursions.”  However, the written lease didn’t say anything about a “cannon.”

The Florida company apparently wanted to use an onboard cannon as part of the “pirate” experience.  But the BLACK PRINCE was shipped from Maine to Florida without the cannon, so the Florida company ended up purchasing its own “Standard Black Winchester Cannon.”  (Incidentally, these “Standard Black Winchester Cannons” are apparently still available online).  The Florida company only paid 2 and a half months of lease payments and then discontinued making any further lease payments.

The Maine company repossessed the ship and sued the Florida company for breach of the lease agreement.  In its defense, the Florida company claimed that the Maine company breached the lease because it agreed to provide a pirate ship that could use a cannon, and the Coast Guard’s inspection certificate prevented any open flame aboard the ship.

The matter proceeded to trial, and the court found no evidence that the coast guard certificate prevented use of the cannon.  The court further found that even if the Maine company “breached” the lease agreement, that such “breach” wasn’t “material” and so the Florida company was left without excuse for not making its lease payments.

The end result?  The Maine company who owned the ship received a judgment against the Florida company for $67,386.79 for breach of the pirate ship lease.

So what was the cost to lease a pirate ship?  In this case, it was $3,700 per month, plus 5% of the gross sales.  The case is reported as Culebra II, LLC v. River Cruises and Anticipation Yachts, LLC (2008) 564 F. Supp. 2d 70.

Professional Advice is Often Worth the Cost

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There’s no doubt about it.  Attorneys fees are expensive.

Most consumers monitor expenses.  And most consumers have never spent any significant money on attorneys fees.  The hourly rate for attorneys is expensive – it is typically several hundred dollars per hour.

It’s not so different for a dentist.  If a dentist charged $300 per hour, and if that dentist saw a patient for 20 minutes, then that patient’s bill would be $100, which most consumers could afford.

But if that same patient saw a dentist for two hours, the fee would be $600.  And if that patient saw the dentist for a full day, then the bill might be something like $2,500.

I once asked a dental office employee what the fee would be if a patient saw a dentist exclusively for a full week – or for a full month.  The math is simple.  A full week would be something like ten to fifteen thousand dollars.  A full month would be something like forty to fifty thousand dollars.  That’s a tough bill for most consumers to pay.

But few legal matters can be done in 20 minutes. A complex legal matter can require days, weeks, or months of time. An initial consultation can often be done in an hour. But $350 an hour just sounds like a lot – and it is.  As a result, some consumers just can’t bring themselves to pay that kind of a fee, and they therefore forego seeking professional legal advice with respect to their legal matters.  State and Federal laws don’t allow consumers to prescribe for themselves the kinds of medication that a dentist or doctor might prescribe.  But the law allows homeowners and other individuals to make their own legal decisions and to represent themselves in court (The rule is different for corporations.  Corporations and LLC’s can’t represent themselves in court.  They must be represented by an attorney).

Does all of this make a difference?  It can.  The most financially significant transaction most homeowners ever make is the purchase or sale of their home.  Consumers understand how to save money – if a product is too expensive, then they don’t (or shouldn’t) buy it.  If they can’t afford a product and still meet their other obligations, then they don’t (or shouldn’t) buy it.  If they can buy a product at a store for one price, but at a different store for a lesser price, then through comparison shopping they can save money by purchasing the same product for a lesser price.

But these types of cost saving measures, which are often intuitive, sometimes break down when it comes to legal matters.  Many consumers seem to think that professionals are interchangeable, like buying a set of dishes or some kind of name-brand product.  That’s not always the case with the professionals.  The temperament, skills, experience and expertise of a professional can make a significant difference on the nature, quality, and effectiveness of the services rendered and the results achieved.  Most consumers intuitively sense this with respect to medicine.  Most consumers wouldn’t consult a brain surgeon about a knee problem.  But the same holds true for legal matters – a personal injury attorney may not be the most efficient source of legal advice on securities or corporate issues.  And a short amount of time with a more highly qualified or specialized professional may actually be less expensive in the long run than more time with a less-specialized and less expensive professional.

Professional Selection Can Be Important

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I continue to hear about the need for clear, concise, competent and trustworthy professional advice with respect to foreclosure law and procedure.  It seems that some borrowers are confused or uncertain as to their rights or options, and some seem to be getting conflicting advice from various sources.  These borrowers have a certain amount of uncertainty, because many of them have never missed payments before, and now that they can’t make their monthly payments they find themselves in an unfamiliar world.  They know it’s not good to default on your loan payments, but they are uncertain of the exact consequences.  Some of them want to know if the Sheriff is going to show up on their doorstep next week, or they want to know if the Bank can seize their 401(k) retirement funds.

There’s no doubt about it.  We live in uncertain economic times, and many people find themselves in circumstances they’ve never experienced before.  We all know that credit histories can be important, but there seems to be a considerable amount of uncertainty among borrowers as to what can and what can’t be reported, and for how long.

The general rule is that negative credit information about a Bankruptcy can be reported for up to 10 years, and other non-bankruptcy negative credit information can be reported for up to seven years.  This can make a difference to some borrowers, because if they have no realistic way of saving their home, then some of them prefer to move forward with the inevitable loss of their home so that they can begin working anew on their credit record with the intention of purchasing a home again some time in the future.

Answers to most of the questions described above are available.  However, we live in an information age, and not all information has equal credibility.  Information obtained on the internet can be readily available – in fact, one of the problem with internet searches isn’t sometimes a lack of information, but instead such searches can result in too much information.  Well-stocked law libraries contain the answers to many of these questions, but the time required to study the law and to correctly understand it can be a most complex and time-consuming process.  As a result, some borrowers spend time reading up on these topics, and this can be valuable in order to gain a broad sense of some of the issues involved. But a broad, general understanding does not always result in the ability to correctly apply such principles to a given situation.  Many borrowers ultimately feel they are best served by consulting a professional who works with these issues on a daily basis and who has the necessary skills and judgment to correctly apply legal principles to a given situation.

Not all professionals have the same degree of knowledge, skill, or experience in a given field.  This means that one of the most critical decisions a borrower will make may be the selection of the appropriate professional.  It’s shopping, in a sense, but instead of shopping at retail stores in a mall, these borrowers find themselves in the potentially difficult position of selecting a professional.  With little professional background of their own, such borrowers are placed into a position of needing to evaluate their own needs and to match them up with the skills a professional has to offer.

There are no easy answers to such a selection process.  Referrals or recommendations from previously satisfied clients can provide some degree of assurance, but even such referrals are not a guarantee.  Professional credentials, years of experience in the field, and a good intellect can also be important factors to consider. A sense of trustworthiness can also be very important. But there is no foolproof way of selecting such a professional. In the end, borrowers do their best to select an appropriate professional, and then they ultimately decide whether or not to accept the advice provided by their professional.

Proper Advice Can Make A Difference

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            “Penny wise and pound foolish.”

Maybe it’s an old saying.  But there can be truth in it.

I constantly see the practical application of this saying in the real estate foreclosure market.

In California, some loans are “non-recourse.” With “non-recourse” loans, the borrower generally won’t have personal liability after a foreclosure for any shortfall or deficiency in the foreclosure sale price.  In other words, if the property is worth less than the loan, the borrower won’t have to make up the difference if the property is sold in foreclosure.

Most borrowers don’t know the law with respect to foreclosure.  Foreclosure can seem mysterious, and somewhat foreboding. The phrase “Short sale” sounds so much less foreboding than the word “Foreclosure.”

But many homeowners who can’t meet their payments have a choice between foreclosure or a short sale.  There are often tens of thousands, or sometimes hundreds of thousands, of dollars at stake in such a decision. The net economic difference to a homeowner between selling their home in a short sale as compared to losing their home through foreclosure can be very significant.  Sometimes a short sale yields a better result.  Sometimes foreclosure is better.  But it’s difficult when I hear that homeowners facing such decisions are unwilling to spend a few hundred dollars to get some professional advice on which course of action makes the most sense for them and which one is likely to yield the better result.

It’s tough.  Homeowners facing a short sale or foreclosure are already losing their entire down payment.  And they are also often losing all of the work, money, and improvements they’ve put into their property.  The thought of spending additional money on attorneys fees only to lose more money can seem like throwing good money after bad.

What these homeowners often don’t realize is that the money they spend for professional help is being spent in the nature of “damage control.”  Homeowners who choose a foreclosure or short sale can end up being surprised at the end of the day when they think that the short sale or foreclosure is the end of the process, only to learn too late that the lender has preserved a claim against them following foreclosure and intends to pursue it.  This can often happen in situations where there are two loans against a property, but it can happen in other situations as well.  A short sale or foreclosure can both be thought of as a transaction, though such transactions may be made under pressure. Even though a homeowner will most likely lose money in such a transaction, there can sometimes be an opportunity to lose even more.  Competent, qualified, professional advice can sometimes make a big difference on helping homeowners minimize their losses and can help them avoid losing even more.

Law Hangs in the Balance

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            Open up just about any phone book and turn to the yellow pages section on “Attorneys.” If you look at enough of the yellow page ads, you’re likely to see a photo (or drawing) of a set of “scales” or “balances.”  You may even see a blindfolded  “Lady of Justice” holding a sword in one hand and a set of balances in the other.

So where does this symbol of “Lady of Justice” come from and what does she represent?

Depends on who you ask. A quick internet search on “woman holding balances” will give you all kinds of opinions about the source and history of “Lady of Justice.”

For example, if you do a web search using these search terms: “The symbol of Justice began centuries ago” then you’ll be taken to a website where you’ll see a drawing of a blindfolded “Lady of Justice” holding a sword in one hand and a set of balances in the other.” The website traces the symbol to Roman mythology, and notes that she is often (but not always) shown wearing a blindfold.  The website states that the image of “Lady of Justice” refers to one of the Roman gods; she represents the fair and impartial administration of justice.  However, the site provides no specific discussion of the sword or the balances.

The site goes on to note that “The modern image of Justice that many of us know today is based on Greco-Roman mythology of Themis and Justitia.  Almost always draped in flowing robes, mature but not old, she symbolizes the fair and equal administration of the law, without corruption, avarice, prejudice, or favor.  Themis, c 300 BEC, was the Greek Goddess of Justice and Law and was known for her clear-sightedness.  Her ability to foresee the future enabled her to become one of the oracles at Delphi, which in turn led to her establishment as the Goddess of Divine Justice.  Classical representations of Themis did not show her blindfolded because of her talent for prophecy, nor was she holding a sword because she represented common consent, not coercion.”

If you do a google search using the following search terms:  New York Times Lady Justice you’ll be taken to a web page where you’ll find there is so much history to the image that an actual book on the subject was published in 2010 about its history.

That website reviews some of the major points of the image, and includes photographs of some of its different uses, including one from the Vatican. This review describes the progression of the image from ancient Egypt, where the balances held a feather on one side and a heart on the other.  According to this article, “Lady of Justice” never wore a blindfold until the 17th century.

It’s a certainty that our American legal system requires a balancing of interests. Whether or not the balances held by the Lady of Justice represent a balancing of interests, the courts in our country consistently find it necessary to balance competing interests.  In an interesting case, a court found it necessary to balance the constitutional right to the free use of property against the rights of free speech and the right to assemble.