A Chestnut Pulled From The Hilarious RRA Pleadings File!

Bob Norman as usual is ahead of everybody else and has a story that refers to Scott's delay tactics in a suit Rothstein brought on behalf of infomercial king Russ Whitney.

From what I can tell, it appears that Scott was filing SLAPP suits on behalf of Whitney against various critics and naysayers, including pro se defendant John Reed.

Scott went after Reed in a few suits filed in federal court here in Miami (Judge Seitz transferred the latter-filed one to Judge Marra, who sent them both up to the Middle District where a suit against Reed was already pending).

The Middle District docket is a hoot. The number of delays sought by Whitney -- often on an emergency basis -- is staggering, as are the reasons proffered.

My favorite is this emergency motion seeking to put off depositions of the defendant yet again because Scott was once sick, but now is well, and simply has to go on a European cruise with 18 of his closest friends, depos be damned:

3. On June 15, 2005, lead counsel, Scott Rothstein was undergoing medical procedures and was unable to be available for the conference. As this Court has been previously informed, Mr. Rothstein was suffering from a potentially significant health condition necessitating immediate medical intervention.

4. The depositions are currently set for July 5, 7 and 8, 2005, by agreement.

5. Mr. Rothstein was not medically cleared to travel until Monday, June 27, 2005.

6. Over a year ago, Mr. Rothstein purchased non-refundable tickets for a cruise which departs from Rome on July 1, 2005, for which he was scheduled to leave the country on July 29, 2005 at 3:00 PM, that will keep him out of the country until July 14, 2005. Mr. Rothstein was not going to travel because of his medical condition, but is now cleared to travel. Mr. Rothstein has not taken a vacation for more than a few days in over three years and it would be in his best interest healthwise to travel on the trip.

7. Additionally, Mr. Rothstein would be traveling with eighteen (18) of his friends with whom this special vacation was planned, and Mr. Rothstein was the person that principally coordinated the vacation, and the activities at each of the destinations, and will be acting as host on board the ship for all of his guests.

8. Upon learning of the conflict, the remaining attorneys working on the above styled action were preparing to cover the depositions in Mr. Rothstein’s absence.

9. Plaintiff, Whitney, was out of the country until this week and was not reachable until June 27, 2005. Upon returning, without waiving any attorney/client privilege, Mr. Whitney demanded that Mr. Rothstein represent him, stating that he was hired to represent him and that he would not allow anyone else from the undersigned firm to appear on his behalf at something so important as these depositions. This has placed Mr. Rothstein between a rock and a hard place. If the brief continuance is not granted, Mr. Rothstein will either appear at the depositions or lose an important client damaging his law firm. If he appears, he will lose all of the money for the trip, flights and hotels.

10. Mr. Rothstein is the CEO and senior shareholder of undersigned’s law firm, and has earned an excellent reputation as a trial attorney. Thus, Mr. Whitney hired Mr. Rothstein specifically with the understanding that it would be Mr. Rothstein that handled the most important portions of this litigation.

Can you believe this was actually submitted to a federal judge? On an emergency basis?

Reed's pro se response to an earlier but equally ridiculous "emergency" motion for a postponement of an evidentiary hearing, which lays out the improbable series of delays throughout the litigation due to illness, travel, and just about everything else, is here.

BTW, Judge Frazier denied Scott's illness/cruise emergency motion (D.E. 128):

The Court has continued matters in this case twice before at the request of Plaintiffs' counsel and will not continue these matters a third time. The request to continue depositions was untimely. The depositions currently set for July 5, 7, and 8, 2005 will go forward.

The parties settled on confidential terms shortly thereafter.

Maybe the best part of this story is that Rothstein was apparently counsel for the cruise line and presumably could have changed the date if he really needed to?

(Some of You) Like Me, You Really Like Me!!

Well the kind folks at the ABA Journal who compile the otherwise excellent Blawg 100 have thrown their normally good taste and judgment to the wind and included us for a second straight year!

Thanks for the acknowledgement, seriously.

We're listed in the "Geo" category (with very fine company btw) and you can vote for us here.

A Day Without Scott Rothstein?

I don't know about you, but it feels pretty good to go a whole day without any significant developments in the Scott Rothstein saga.

Best I can tell, all that happened today is Scott was officially disbarred, and the feds amended their forfeiture petition to add a few more properties. And a few days ago the Palm Beach Post questioned Scott's enablers.

Weird that I have not heard of more announcements of where former RRA attorneys are landing. Anyone with info please feel free to email me directly.

Sheesh it feels quiet around town today. Where is everybody?

Law Updates for November 20, 2009

Dawson, 34 FLW 2294, 4th DCA, Richardson violation. Trial court erred in failing to conduct a complete hearing and failing to consider lesser sanctions, such as a continuance or a mistrial, before excluding defense rebuttal witness, where testimony was relevant and trial court found state was prejudiced because it was not given an opportunity to depose the witness and subpoena rebuttal witness or possibility of taking depo of defense witness before testifying. Application of three part test insufficient for a discovery violation as the court must consider a fourth factor and explore whether another reasonable alternative can be employed to overcome possible prejudice. Error not harmless in reversing first degree murder conviction where reasonable possibility that exclusion of witness contributed to the conviction.

Thompson, 34 FLW 2299, 4th DCA. Credit for time served - probation revocation. Def originally sentenced to concurrent terms for 2 counts, and trial court imposed consecutive sentences for those two counts after VOP. Def was entitled to credit for time served against both of the consecutive sentences. (see Rabedeau, 2 3rd 191(Fl. 2009))

L.C., 34 FLW 2306, 3rd DCA, search and seizure. It was unreasonable for police officer to perform a weapons search without having performed a pat-down of a 15 year old truant before putting her in the back of the police car to execute the ofc's statutory obligation to transport her to school where the officer had no basis to suspect the student of possessing any weapons. Absence of reasonable suspicion not justified in search just because ofc felt unsafe about his safety, nor could he do based on blanket department policy.

Ortiz, 34 FLW 2311, 5th DCA, (En banc) Reversed lower panel opinion now in favor the trial judge's finding of exigent circumstances (medical emergency exception) for warrant less search of home - for the state, distinguishes Riggs, 918 So. 2d 274(Fl. 2005).

Acevedo, 34 FLW 2322, 5th DCA, Miranda warning given to def was defective where def was told that he had a right to counsel but was not told he had a right to counsel both before being interrogated and during interrogation. Not harmless. Reasonable possibility it affected the verdict - State v. Powell, 998 So 2d 531(Fl. 2008) cert granted 129 S. Ct 2827(6-22-09)

Florida v. Simmons, 34 FLW 2352, 1st DCA, Trial court had the authority to dismiss the current charges against the def as a remedy for the state's refusal to comply with a settlement agreement under which it was agreed by the state, the def, and the victim of the crimes that def would be admitted to PTI and charge would be dismissed and victim would be paid restitution. (victim refused to sign the victim consent form after he was compensated)

Bailey, 34 FLW 2359, 1st DCA, Audio - recorded statement - Def statement to interrogating officers, not during Miranda warnings but during the statement, "Man, I don't rally want to talk about that", was not an unequivocal revocation of the prior waiver of the right to remain silent. Trial court id not err in admitting the audio-recorded statement





The Law Offices of Roger P. Foley, P.A.

Who Is Tiger Woods' Lawyer?

Oy this Tiger Woods thing is a mess.

As always, the cover up is worse than the crime. A sports figure possibly having an affair and getting into a domestic dispute with his wife is really not that big a deal.

But when you add deception, power, privilege, and a perception that a rich star is being (or wants to be) treated differently because of who he is, along with changing story lines and cancelled police interviews, you create a media frenzy and fascination that far outweighs whatever actually happened early that morning.

Who is helping Tiger dig this hole even deeper? Let's take a look:

Mark NeJame has primarily devoted his entire career to the practice of criminal defense. His reputation has been achieved over 25 years representing clients charged with almost every type of criminal offense. A passionate and skilled trial attorney and negotiator, Mark has handled literally thousands of cases in his career to successful conclusions on behalf of his clients. Being the Founder and Senior Partner of NeJame, LaFay, Jancha, Ahmed, Barker and Joshi, P.A., Mark is driven in making certain that his Firm and its team of trial attorneys provide creative, aggressive and compassionate representation in seeking the best results on behalf of its clients. Mark routinely takes on significant or complex civil/business litigation, domestic, personal injury and immigration related matters, but over the years has primarily focused on his criminal defense clients.

Mark seems like a respected and qualified Central Florida criminal defense attorney, so what the hail is he advising his client? He needs a new PR strategy and should address this head on.

Meanwhile, Tiger's alleged mistress Rachel Uchitel has hired Gloria Allred.

This is not trending well.

Rothstein Scorecard -- Who Represents Who?

Well I hope everyone had a warm, loving, and peaceful Thanksgiving, and is now fighting over deals at Walmart -- that HDTV screen will only be on sale for two more hours!

I wonder if any meaning can be derived by looking at who is representing who in the Rothstein saga.

We know Scottie has loyal Marc Nurik, who recently has been cracking jokes and alternately acting as Scott's public psychologist:

"He did something that, when you think about it, is kind of extraordinary. He goes away to a country that has no extradition treaty with the U.S., reportedly, allegedly has a lot of money at his disposal, and chooses to come back and deal with this … I think because beneath it all, and not withstanding all the things that have been said about him, I believe that he is truly a decent human being, not withstanding flaws. I really do believe he did it out of, a true decent emotion to try to deal with this.''

Again, I have no problem with a public rehabilitation strategy. I just think, in the absence of other positive facts, this strategy is way too premature.

Marc would have you believe at the same time he is denying that Scott is cooperating with the feds and singing like a bird, Rothstein nonetheless has returned to "make everything right." How does that square up?

Rothstein's bankruptcy lawyer is Hinshaw's Michael D. Seese.

I agree with Bob Norman that Bill Scherer's amended complaint is an interesting read but a bit of a mess.

It is 289 pages long and asserts 245 counts. To be honest it reads like a placeholder, an effort to "occupy the field" and get in front of the other civil suits coming down the pike. Somebody at some point definitely needs to edit that thing.

Let's see -- Bob Josefsberg is representing Banyon COO Frank J. Preve -- what could that mean?

Bruce Lehr is representing Big Stu, Fred Haddad has Russ Adler's back, and Neal Sonnett is representing Grant Smith.

Russ even recently appeared in court on behalf of former Judge Seidlin.

It's a small town, huh?

Happy Thanksgiving, Plebes!

Have a joyous and peaceful holiday.

A Thanksgiving Cornucopia of Kim Rothstein Photographs!

Well kids, it's that time again to give our thanks and blessings for another year.

I thought it pretty interesting that in years past Thanksgiving had both a "fasting" and "feasting" component.

Indeed, what does it say about us that everyone abandoned the "fast" part:

In the nearly 400 years since the first Thanksgiving, the holiday has come to mirror our transformation into a nation of gross overconsumption, but the New England colonists never intended for Thanksgiving to be a day of gluttony. They dished up restraint along with gratitude as a shared main course. What mattered most was not the feast itself, but the gathering together in thanks and praise for life’s most humble gifts. Perhaps this holiday season we could benefit from restoring a proper Thanksgiving balance between forbearance and indulgence.

Ben Kuehne has something to be thankful for, and so do we all. This is tremendous news, and what great timing!

David has more, including a statement from Ben, and you can see the order of dismissal here.

I hope some or all of you are giving something back this Thanksgiving, in a meaningful way.

And don't forget the powerful words of Johnny Carson:

Thanksgiving is an emotional holiday. People travel thousands of miles to be with people they only see once a year. And then discover once a year is way too often.

Enjoy the photographs, the bird and family, and have a peaceful and loving holiday weekend.

3d DCA Watch -- A Perfectly Split Decision.

I believe it's time we reclaimed the bunker by the highway for its rightful inhabitants -- the Resplendently Robed Ones, the swillers-of-the-free-coffee, the ones who make written and sometimes coherent utterances, yes it's a glorious pre-Turkey Day 3d DCA Watch:

Barry v. Carnival:

Wow, here's the backdrop:

Subsequent to the release of the panel opinion in Leslie v. Carnival Corp., Nos. 3D06-2228, 3D06-2226, 2008 WL 34793, at *1 (Fla. 3d DCA Jan. 2, 2008), the Court consolidated this case with two others, and by a majority vote of the active judges of this district, see Fla. R. App. P. 9.331(a), ordered that they be considered together en banc on the issue decided in the panel opinion. Upon consideration of the matter en banc, the Court is evenly divided. Judges Gersten,Wells, Shepherd, Suarez and Lagoa voted in favor of affirming the circuit court. Chief Judge Ramirez, and Judges Cope, Cortiñas, Rothenberg and Salter voted to reverse the decision of the circuit court. The effect of the vote is that the panel opinion stands.

That's a very telling split, no?

Not one to leave well enough alone, Judge Shepherd writes a fairly sharp concurrence that has all the hallmarks of his writing -- including use of the word "oxymoronic."

He says he did it to "balance" Judge Cortinas' dissent, but it doesn't really read that way.

Here's the gist of what happened in this case -- Carnival's forum selection clause acts as a deprivation of the right to a jury trial because, by limiting the forum to the SD FL, if you don't have $75k in damages you are stuck in admiralty and thus cannot have a jury hear your claim.

From my read Judge Shepherd's concurrence tends to be narrow and formalistic in its analysis of the "Savings to Suitor" clause. I'm not sure why the history of the clause is relevant unless there is something ambiguous about the language. He also neglects the clear import of the forum selection clause and its impact on the right to a jury if you don't meet the jurisdictional requirement.

In doing so he gets a little cute:

The paean to the “fundamental right to jury trial” under the United States and Florida constitutions found in the dissent is poignant. See infra p. 31-32. Its reminder—that any waiver of this fundamental right must be made knowingly and voluntarily—is gripping. See infra p. 32-36. The dissent forgets, however, that we are not dealing here with a judicial doctrine surrounding jury waiver clauses. Rather, we are dealing with a judicially created doctrine for determining when it is appropriate to enforce a forum-selection clause in a maritime case.

"Paean," "poignant," "gripping" -- do I detect sarcasm?

Yet the Judge abandons all formality and gets uber-practical and "real-worldy" when he imagines the true motivations of the plaintiffs in footnote 10:

Although cast in the idiom of jury sanctity, I deduce from the arguments made that the plaintiffs’ true concern is that the judges of the United States District Court somehow will be less favorable to them than a jury on issues of liability and compensation. However, analyses of empirical data from federal cases compiled by the Administrative Office of the United States Courts strongly suggest otherwise.

Note to Judge Shepherd -- those are interesting stats, but they all pre-date the last President and his impact on the composition of the federal judiciary. Also, one of the studies is particular to product liability cases only, the other deals only with Georgia tort cases, and the third is from 1996 and addresses verdicts only in "large counties."

Plus the plaintiffs' "true concern" is not part of the factual record, is it?

Judge Shepherd then ends, as he frequently does when a ruling seems unfair -- by blaming the legislature:

The passengers’ grievance in this case lies with the United States Congress.

Judge Cortinas, however, thinks otherwise:

On its face, the Forum Clause appears to operate as any ordinary forum selection clause, that is, it restricts the filing of a lawsuit against Carnival to a particular forum, namely the United States District Court for the Southern District of Florida. However, because of the jurisdictional limitations of the federal courts, this Forum Clause actually operates to deprive certain passengers, including all of the appellants, of their right to a trial by jury without notification and consent.

That seems pretty easy to understand -- no paeans to "gripping" poignancy required.

Judge Cortinas continues:

The concurring opinion posits that the application of federal law in maritime cases somehow minimizes the clear existence of concurrent state court jurisdiction over cases such as these and the accompanying right to a jury trial in our state courts. Of course, there is not a single case in American jurisprudence which supports this position. If that were the case, in a properly filed “saving to suitors” case, Carnival would be able to avoid a jury trial in our state courts by resorting to the concurring opinion’s “supremacy of federal maritime law” contrivance. No case has ever reached such a result.

Respectfully, the fact that federal law applies in maritime cases has little to do with this case or the issues before us. Instead, it is a red herring, worthy of momentary distraction without more. The concurring opinion alludes to the application of federal maritime law in construing the enforceability of a passenger cruise contract. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590(1991). It then concludes that, under federal maritime law, courts have enforced territorial forum selection clauses and, therefore, our Forum Clause must be enforced due to “supremacy of federal maritime law.” However, this inquiry assumes we are dealing with an ordinary territorial choice-of-forum clause that merely selects a particular forum over another. There is no dispute that, absent the waiver of the right to a jury trial, which is implicated in our particular Forum Clause, the selected forum would be upheld and enforced as it has been in our prior decisions where the right to a jury trial was not raised on appeal.

In other words -- look at the application of the clause, its effect, and not merely its label. Hail you went all "off-label" when you "deduced" the "true concerns" of the plaintiffs.

Close call but I'm giving this round to Judge Cortinas.

Given that they certified the question to the Florida Supreme Court I don't think we've heard the last of it.

BTW, you want to get all "real-worldy" go over to the Port of Miami and see the embarkation process on a Carnival ship. If you think these folks are concerned with detailed contract language when they are fighting to get a free daiquiri and a place at the buffet line you've never been on a "Fun Ship."

(And thank goodness for that).

Scotty's Greatest Hits: A Look Back At Rothstein's Real Cases!

Ever wonder how Scott did in court?

You'll need a PACER account but it'll be worth it I promise ya kidzzzz:

Renato Watches:

Scott filed a few cases on behalf of his buddy, Ovadia "Ovi" Levy, Scott's partner in Renato Watches.

One was a trademark case involving the "public face" of Renato Watches on ShopNBC, "Daniel Mink."

Another was a suit against a critic of Renato Watches, Howard Bernstein.

That complaint is here and is a fun read. God those watches seem dreadful (please don't sue!).

Both cases were voluntarily dismissed shortly after filing, indicating they either settled quickly or were "strike suits" and dropped after having (or not having) their intended effect.

Ultimate Cigars:

Scott represented Ultimate Cigars in a cybersquatting case that similarly ended quickly.

That, of course, was before Scott allegedly tried to trap his former client, according to what Bob Norman is reporting here.

Where are all those hush-hush sexual harassment and whistleblower cases that were bringing in all the big bucks?

Must be on Judge Marra's "secret" docket.

In other news, Richard Sharpstein drops a bombshell on Judge Stettin, you can read it (again) over at Bob Norman's blog here.

What the hail is going on in the world?

"A Town Full of Thieves"

That's Scotty talking to the press again:

I had a couple of brief exchanges with Scott Rothstein today. Most of it I'll have to bleep out.

Suffice to say Rothstein had some ideas on what we could do in our spare time, rather than trying to interview his family members.

He was objecting to questions about his wife, Kimberly Ann Wendell Rothstein. She's been silent throughout this ordeal. Her bodyguard, Joe "Meatballs'' Alu (I got the nickname from his voice message), said she's a very private person, and doesn't want to talk. She is reportedly still living in the house on Isla Bahia, but federal authorities took the yacht, most of the cars, and even her jewelry, in the wake of accusations her husband was running a Ponzi scheme.

This part is intriguing:

“You’re in a town full of thieves, and at the end of the day, everyone will see. I’ll leave it at that.’’

Meanwhile, lobbyist-turned-Senator LeMieux just doesn't understand how Scotty made all that money he kept donating to the GOP:

"I’ve talked to him and know him," LeMieux, who ran a competing law firm, said last week. "I never understood how he was so successful, but I wasn’t the kind of person to try to pull down others. I just hope for the best and was always optimistic about him as I am about everybody and thought there must be some other way he is making his money."

I agree with the Senator -- case closed!

Kinda weird how Scotty got invited to the Senator's swearing-in ceremony. Some people are lucky I guess.

You want to see where some of the money went, take a look at Kim's $100k in political donations for 2008 (made under her maiden name) -- McCain/Palin, Senator Martinez, Rudy Giuliani....hey, what's Bill Richardson doing in there?

Cats And Dogs Living Together, Mass Hysteria Etc.

This NYT table-setter on several upcoming Supreme Court cases points out that conservative and liberals are coming together to condemn a criminal justice system in which all Americans are pretty much violating some law somewhere:

“The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,” Mr. Thornburgh said. “Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the A.C.L.U.”

In an interview at the Heritage Foundation, a conservative research group where he is a fellow, Mr. Meese said the “liberal ideas of extending the power of the state” were to blame for an out-of-control criminal justice system. “Our tradition has always been,” he said, “to construe criminal laws narrowly to protect people from the power of the state.”

There are, the foundation says, more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.

“It’s a violation of federal law to give a false weather report,” Mr. Meese said. “People get put in jail for importing lobsters.”

Such so-called overcriminalization is at the heart of the conservative critique of crime policy. The U.S. Chamber of Commerce made the point in a recent friend-of-the-court brief about a federal law often used to prosecute corporate executives and politicians. The law, which makes it a crime for officials to defraud their employers of “honest services,” is, the brief said, both “unintelligible” and “used to target a staggeringly broad swath of behavior.”

The Supreme Court will hear three cases concerning the honest-services law this term, indicating an exceptional interest in the topic.

Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, “Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

Notwithstanding this common ground, the gap remains when it comes to prosecuting terrorists using this same criminal justice system as opposed to problematic military commissions or worse -- indefinite detention with no charges.

Obama supporters cannot explain the logical fallacy in a policy where some accused terrorists are given jury trials in front of federal judges and others are not, while conservatives fail to adequately explain why the criminal justice system cannot handle these trials when there is a demonstrable track record showing they can.

What irks me most are knowledgeable lawyers such as John Yoo and Andy McCarthy who argue that federal judges cannot be trusted to maintain military secrets and that the judges will just fork over intelligence to the bad guys.

In light of the Classified Information Procedures Act, this argument is just specious.

A similarly annoying argument is that the accused will turn the trial into a soapbox and score some propaganda points somehow. Again, these lawyers know that this is federal court. Other than courtroom sketches and transcripts, there will be nothing to work with. Does anyone remember any big propaganda points that Moussaoui scored when he was tried in federal court?

And if they did, so what?

Again, I'm reminded of the profound words of Justice Jackson in his opening statement at Nuremberg (a unique military commission, to be sure, but one that was public and afforded the defendants an opportunity to mount a defense):

That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

Voluntarily submitting captive enemies to the judgment of law, what a concept.

A Scott and Kim Rothstein Fever Dream

So I briefly nodded off as I was monitoring a deposition by phone this afternoon. That in and of itself is not unusual; what was strange was what happened next.

I found myself in the Moroccan desert, something out of The Sheltering Sky, except instead of Port and Kit Moresby or even John Malkovich and Debra Winger there was Scott and Kim and they looked really really weird and were with some old dude and they were trying to sell me bad acid.

That's the last time I have Ethiopian for lunch.

How Not To Run A Law Firm.

There was an amended complaint filed a short while ago in the Rothstein forfeiture proceedings, you can see the Sun-Sentinel article here.

The docket is here and the amended complaint is here.

It's a pretty amazing list of crap if you take the time to absorb it all. Aside from the cars, houses, boats etc., there's also a 10 to 20 grand "guitar collection,"16 DuPont lighters, tens of thousands of AMEX gift cards, and a partridge in a pear tree.

Paragraph 14 is instructive:

In one year, prosecutors wrote, the Rothstein Rosenfeldt Adler law firm brought in just $8 million but salaries for the workforce were $18 million. "The additional $10 million for salaries, as well as the other expenses for operation of the law firm, came from the operation of, and the funds generated , by the 'Ponzi' scheme," according to documents filed by Assistant U.S. Attorney Alison Lehr and Taryn Guariglia, an IRS special agent.

So folks at the firm were paid from allegedly stolen funds?

Also, how is it possible a seventy-lawyer firm could only bring in $8 million in revenues? What kind of business model is that?

SFL Monday -- The Path Life Leads You.

Hi kids, it's a short week and we have lots to do so let's see what is going on in the world:

Rothstein may have had extraordinarily bad taste but his partner in crime is worse:

The other was the late Stuart Rado, a consumer watchdog who died of cancer before the Classic Motor Carriages sentencing in 1999.

Rado’s estate attorney said in a statement that GGL’s tactics included “silencing” its critics and filing two lawsuits against Rado, even though the company knew Rado was dying of cancer.

Nice. Who was the lawyer who did what George Levin asked and sued a dying man for attorney's fees?

My favorite comment from the weekend was this Sarah Palin fan waiting in line at a book signing, who said this about President Obama:

“He isn’t governing, he’s still campaigning,” said Joe Miller, a lab technician who had taken a vacation day to wait in line Thursday at a Meijer superstore in Fort Wayne.

Joe, you realize that the person you have been waiting all day for actually quit governing in order to make a lot of money, go on a megabook tour, and campaign for 2012?

Sigh -- my head hurts.

What else -- the BigLaw biz sucks:

Among the top 75 law firms, 15 had reductions of more than 100 lawyers. Of the top 50, seven cut more than 200 attorneys. The firm with the largest percentage decrease was No. 95 Fried Frank Harris Shriver & Jacobson, which declined by 26.4 percent to 468 attorneys from 636 in 2008. Last year, the firm held the No. 58 slot in the rankings.

I've heard more unconfirmed reports, so anyone with more information please drop me a line.

Do you care that Judge Marra ruled on a motion to dismiss or that the 11th affirmed Judge Altonaga? No, you just want more and more Rothstein.

What about the fact that Stu Rosenfeldt, under investigation by the Florida Bar, was just named one of Broward's "leaders of the year":

Rosenfeldt formed a new firm with attorney Shawn Birken. He said he’d like to avoid being dragged into the legal morass his law partner created, but to some extent he knows he will be.

“I didn’t plan it this way,’’ he said. “ … I guess you just have to follow the path that life leads you. … God has a plan. Hopefully He’ll show it to me.’’

Oh boy.

I think I liked "Clueless Stu" better.

SFL Friday -- "Mad Men" And Scott Rothstein

To paraphrase Mark Harris, it seems that Scott Rothstein continues to rule our world.

Here's the latest:

1. Bill Scherer sues the firm he used to retain for collection matters.

Marc Nurik's reaction -- "This is the first I'm hearing of it."

(Check out the email Bob Norman dredged up).

2. Judge Stettin says October was a banner month for the firm, with hundreds of millions moving through RRA accounts.

3. RRA is down from 167 employees to 14.

Who are the lucky ones, those that are gone or those that are still there?

(I hope Brianne Strohsahl has found a nice new home).

4. Romina Sifuentes has not yet "friended" me on Facebook.

Is that any way to start a relationship?

But that's ok.

I've decided to employ these dating tips from 'Mad Men' (note, I am not making this up):

Keep heavy (borderline uncomfortable) eye contact. Speak when only there is little alternative. Learn to say things that are vague. Answer a woman’s question with a question. Make every action deliberate and noticeable, almost in slow motion. Talk in short sentences. Don’t say too much. Don’t give away too much.

Right -- there's no better way to a woman's heart than to act like a brooding, moody psychotic.

Cigar lovers, take note -- Tatuaje, a brand rolled here in Miami and named the hottest cigar in America, has settled its trademark suit with the makers of Montecristo over its use of the fleur-de-lis.

The suit was pending before Judge Moreno and you can read the complaint here.

Speaking of which, another day another $300 million South Florida tobacco verdict.

Well kids, it's that time again and I have some afternoon windsurfing ahead of me to kickstart my weekend.

Remember kids to put a little alcohol on your lips, keep your mishpucha away from this Rabbi, and if you are collecting disability benefits stay the hail off of TV.

Money never sleeps KIDZZZZ

It's Motion to Dismiss Day in Banco Santander Land!

Anyone remember that Banco Santander/Madoff suit pending before Judge Huck?

Well it looks like the defendants got together and decided to just bombard the court with motions to dismiss.

I'm not sure but I think even Judge Huck filed one, that's how many motions there are to wade through.

The main one filed by Banco Santander asserts that the allegations of securities fraud do not have a United States nexus and the securities laws cannot apply extraterritorially.

It's a pretty interesting read and remarkable that they got it in under 20 pages.

Brevity is the soul of wit, kids.

(I expect Judge Huck to be issuing orders on these motions by this afternoon).

Taking Google Scholar Out For A Test Drive.

Ok, let's get Rothstein out of the way:

John Pacenti and the Herald report on how Scott allegedly bilked this investor just weeks before he took off for Morocco.

The purported "investment opportunity" is insultingly stupid:

The deal offered a return of eight percent per month for the following four months. It involved a purported lawsuit against California-based Dole, which Faulkner said had settled for $500 million in the face of accusations that it had overstated the percentage of pineapple in juices it sold to school districts.

So this is a secret whistleblower action -- possibly unfiled -- in which Dole forks over a half billion over mislabeling the content of its pineapple juice? And for some reason Dole wants to pay this half billion out over time?

In what imaginary world do cases like this exist?

But you know, the kids still got some juice and that's the important thing.

Oy what a goyisher kup.

But Scottie says he doesn't know this particular investor and I for one believe him:

"I keep seeing names on the Internet who were alleged investors of me and I have no idea who they are,'' Rothstein told The Herald on Thursday. "There are sublayers of people doing very, very bad things to people in my name, so we shall see.''

"Not that I didn't do something wrong, and I'm back here to fix it,'' he said. "I made a decision to come back from Morocco and do the right thing. I know people are laughing and saying he can't repay these people, and they are wrong.''

Marc, why is your client still giving interviews to the Herald?

Also Scott, people are not laughing over whether you can repay the investors -- there's plenty of other things about this fiasco to laugh about, believe me.

Alright, let's move on.

So two lawyers at Mayer Brown recently wrote about County of Nassau v. Hotels.com, where the 2d Circuit raised the issue of CAFA jurisdiction nostra sponte (take that, Latin nerds!) and remanded the case to the district court "to determine whether class certification is appropriate" in order to determine whether CAFA jurisdiction exists.

That's just a bizarre ruling, and these Mayer Brown lawyers agree. Their well-written article is here.

To learn more, I went ahead and tried to pull up the 2d Circuit opinion on Google Scholar and found it quite easily and for free.

Your move, oh Lexis lady.

Latest YouTube Sensation -- Ervin Gonzalez!

That's pretty weird.

I was searching for a new "cat playing piano" video and somehow ran across Ervin Gonzalez.

Not bad Ervin, but a few tips if I may:

1. Get up from your desk. These tubes are a fluid medium.

2. Why are your hands clasped so much -- express yourself!

3. If possible, figure out a way to include that Wii girl from Miami.

Oh well, it doesn't really matter -- Ervin has my support either way.

BTW, the Florida Supreme Court today approved new rules regulating lawyer advertising on the web -- you can read the opinion here.

Note -- they have a particular interest in the potential abuse of client "testimonials."

The Interesting But Really Long Life Story of Michael Chow

You know, some idiot bloggers have suggested that certain recent Supreme Court cases have forced litigants to include a lot of extra verbiage in complaints nowadays, most of it entirely irrelevant and unrelated to the actual legal claims for relief.

I don't know about you, but now that Alan Kluger is off the Mr. Chow case, celebrity lawyer Bert Fields has really amped it up with a Second Amended Complaint that reads like a screenplay for the soon-to-be-major-motion-picture about the Life and Times of Michael Chow.

Here's a taste of the pleading:

From Exile comes Reinvention, Revolution and Innovation

20. Michael Chow, the real Mr. Chow, was born in Shanghai, China. His father was a renowned grand master of the Beijing opera and is regarded as a “national treasure,” a rare and highly respected honor in The Peoples Republic of China. In a bipartisan bill introduced into the United States Senate in 2005 by then-Democratic Senator Joseph Lieberman and Republican Senator Lamar Alexander for the purpose of educating American youth about the rich culture of China, Mr. Chow’s father was recognized as one of the eight most influential people in the history of China.

21. As a result of his father’s influence, young Mr. Chow was immersed in China’s venerable and refined arts. The legacy bestowed by his father’s position and artistic accomplishments ultimately inspired the work of Mr. Chow in the West.

22. Mr. Chow was first introduced to Western culture at the tender age of 13, when he was sent to London to further his education. In London, he studied arts and architecture. As an uprooted young man, he was isolated from his family and from the rich Chinese culture. In fact, from the very day he left Shanghai, Mr. Chow was never able to communicate with nor see his father again.

23. Being separated from his family and his heritage left Mr. Chow longing to bring the great culinary tradition of China to the West. Mr. Chow realized his dream in 1968, when he opened his first visionary and revolutionary designer restaurant, the eponymous MR CHOW. The mission of Mr. Chow – both the man and his restaurant – was then and remains today to promote an appreciation and understanding of the complex and varied cuisine of China through authentic interpretations, refinements, and reinventions of classic dishes.

24. Successfully accomplishing these goals, Mr. Chow has devoted his entire life to carefully constructing at his restaurant a universe of experiences for his clients, with each detail intended to bridge the gap between East and West through the medium of Chinese cuisine, creating a unique fine dining experience. Over time, and through painstaking effort, Mr. Chow has been able to convert a misunderstood and largely unfamiliar cuisine into an art form with a cult following by providing clients of the MR CHOW Restaurants with a dining experience that both enlightens and entertains.

Bert also does an extended riff on the ancient art of "hand-pulled noodle-making":

27. In addition to preparing authentic Chinese cuisine, Mr. Chow has always been keenly interested in educating and entertaining his clients, with a view towards honoring and sharing China’s cultural heritage. Among the many things Mr. Chow has done to accomplish this objective was to bring the ancient art of hand-pulled noodle-making to his restaurants, where he created and introduced a nightly noodle-making show in the dining room at his first restaurant some forty-one years ago which has continued ever since in each MR CHOW Restaurant. This show has been exhibited on national television and has even been demonstrated in the Kung Fu Panda movie DVD.

28. The ancient art of stretching hundreds of fine noodle strands from a mound of dough entirely by hand and without knives or other utensils, remained first in Asia and then in the kitchen, until Mr. Chow brought it to England and America and into the dining room in his nightly noodle show. The rapid, skillful transformation of dough into noodle strands from a trolley in the center of the dining room is one of Mr. Chow’s many signature innovations, and is inextricably associated with the MR CHOW Restaurants.

Ok fine, but Ramen noodles got me through college.

Seriously though, does Judge Hoeveler need to read all that?

Lamar Alexander, "tender age of 13," London, East meets West, Beijing Opera, trolleys, Kung Fu Panda -- oy!

Last I checked, it's still Chinese food.

(BTW, there's a great recent book on how Chinese food got so amazingly uniform and ubiquitous in American culture here.)

I'd never thought I'd say this, but we may need to bring back Alan.

My Kind of Federal Judge!

Sure we have Scott Rothstein and his lovely Tom James clothier Romina Sifuentes, but Louisiana has ED LA judge G. Thomas Porteous Jr.:

A federal judge from Louisiana who had run up big gambling debts routinely solicited money and gifts from lawyers with cases before his court, Congressional investigators said Tuesday as the House opened impeachment hearings in the judge’s case.

The judge, G. Thomas Porteous Jr. of Federal District Court, had more than $150,000 in credit card debt by 2000, mostly for cash advances spent in casinos, investigators said. Judge Porteous’s requests for cash became so frequent that one New Orleans lawyer said he started trying to dodge the judge.

“He began to use excuses that he needed it for tuition, he needed it for living expenses,” the lawyer, Robert Creely, told a House Judiciary Committee task force. “I would avoid him until I couldn’t avoid him anymore.”

Mr. Creely said he and his law partner, Jacob Amato, gave Judge Porteous an estimated $20,000 over about 10 years starting in the 1980s, usually in cash. That includes $2,000 stuffed in an envelope just before the judge decided a major civil case that earned their firm $500,000 to $1 million.

Can you imagine?

I love this comment by the judge's attorney:

The judge’s lawyer, Richard Westling, acknowledged that some of his client’s decisions “in the light of day, looking backward, might have been handled differently.”

“I think what you’ll find is that there has never been an argument that what happened in Judge Porteous’ courtroom was anything but fair,” Mr. Westling said.

In other words -- corrupt, but fair.

The Judge has an interesting argument on immunized testimony you can read about here.

Ok, let's get back to Romina, whose Facebook page is (currently) here.

You know, I buy suits from Tom James on occasion, yet my sales guy looks nothing like Romina.

Then again, my suits don't look anything like what Scott used to wear either.

Computers Car and Florida Crash Investigations

Tampa Criminal Defense Attorney notes a car's black box may be used in crash investigations. Courts have held that ''the rate of speed of a vehicle can be firmly shown . . . to be so excessive under the circumstances that to travel that fast under the conditions is by itself a reckless disregard for human life or the safety of persons exposed to the speed.'' Court rules that there can be enough probable cause to get a search warrant for the vehicle's black box.

Complete Story and Court Order is here.

Search Warrant for Car Computer? Tell Me Your Story Toll Free 1-877-793-9290

Vehicular Homicide Defense Attorney Lawyer Tampa Florida

Plays Real Good For Free

A Children's Treasury of Kim Rothstein Photographs!

I'm bored to bits here.

Can someone explain how a lawyer who has accepted voluntary disbarment is still on the 4th DCA JNC and our Governor has "no immediate plans" to remove him?

I also love the ridiculous application he made to the Governor for appointment, preceded and followed by boatloads of cash (was any of it his?):

"I am driven to insure (sic) the integrity of our judiciary,'' Rothstein wrote. "I will accept nothing less than professionalism and integrity.''

Rothstein was a major contributor to Florida's Republican Party and donated to Crist's campaign for attorney general and governor. A photo hanging in Rothstein's law office when the investment scandal broke late last month shows Crist hugging the lawyer with a handwritten note from the governor: "Scott – You're amazing!''

Ivey did not respond to questions about whether the governor's relationship with Rothstein or his political support influenced the appointment. Rothstein's term is up in 2012.

Earlier this month, the Florida Bar removed Rothstein from a Broward County grievance committee that hears complaints against attorneys.

The Best Lawyers in America had included Rothstein in its lawyer referral database since 2005 but removed him on Nov. 4, the day of an FBI raid on Rothstein's office, a spokesman said.

Rothstein touted his inclusion in Best Lawyers in his gubernatorial application. He also noted that he had handled more than 150 jury trials, and he had a "unique insight into the judiciary.''

"I am a confidante (sic) of many members of the judiciary and am called on regularly for counsel,'' Rothstein wrote.

Rothstein listed auto magnate Ed Morse Jr. as one of three character references. Morse's family now says that Rothstein swindled them out of millions.

The governor selected Rothstein and two other attorneys for the commission from a pool of 24 applicants.

At the time, Rothstein, his partner and their immediate families had donated over $200,000 to the Republican Party of Florida, and Rothstein had contributed $8,500 to Crist. Four days after the appointment, Rothstein contributed $140,000 to the GOP.

Once again, the question arises -- how did this man get this far in the South Florida legal community without anyone calling bull@($t?

A middling Broward employment defense lawyer but he claims to have tried 150 jury trials?

Hey, did he mention his $57 million sanctions order before Judge Marra?

Love ya South Florida!!

3d DCA Watch -- Have I Died And Gone to Heaven?

You know, I find it more than a little annoying that Scott Rothstein has stolen my 3d DCA "bunker" imagery.

It's mine, dammit!

You can have Dr. No and his lair, "frickin' sharks with frickin' laser beams attached to their frickin' heads", Jack Benny and his vault, but leave our beloved judicial bunker out of it.

Oh well, I can't be too upset because today is my birthday and the 3d DCA baked a salted and air dried meat cake just for me!!

How do I know it was for me, you ask?

Alright, see for yourself --

Gonzalez v. Londoff Chevrolet:

Affirmed. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989).

I think that's pretty much all that needs to be said.

But wait a minute, they're not done --

Hall v. Pro Access:

The plaintiff also did not show that exercising personal jurisdiction over Hall comports with due process. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). Thus, the trial court should have granted Hall’s motion to dismiss.

Could truer words ever have been spoken?

Kids, talk amongst yourselves -- I may need to take the rest of the day off.

GrayRobinson Seeks Fees After Removal As Receiver For Alleged Conflict of Interest

Remember that old joke about chutzpah?

Something along those lines may or may not come to mind when reading this motion for fees filed by GrayRobinson in the Middle District.

Even after a contested battle in which Leyza F. Blanco (I like the new picture!) was removed as receiver over an alleged undisclosed conflict of interest, it appears that the firm still seeks to be compensated for the work done on behalf of the receivership.

The firm has, however, taken out all the time related to fighting the conflict of interest issue and has even offered a 20% reduction in fees sought, bringing their request to $122,594.75.

(This one-time only offer will expire if not accepted by 5 p.m Friday; please see terms and conditions for further details.)

BTW -- hope you don't mind, but I have billed .4 for "receipt and review of motion for fees."

Don't worry, I'm willing to take 20 percent off too!

What do you all think -- should the receivership benefit from the legal work done on its behalf before the alleged conflict issue was resolved, or should GrayRobinson suck this one up and move on?

Your Handy Glenn Garvin Checklist

I lost my breakfast attempting to get through Garvin's column this morning, so I was reluctant to give it another go and actually try to finish the darn thing.

But I waited for my lunch to digest, and gave it another crack.

Here's a checklist of things I learned from Garvin today:

1. Hokey "letter from Obama" premise;

2. Obligatory reference to early 1970s (Nixon at Great Wall);

3. Obligatory joke about ACORN and pimps;

4. Misleading and distorted stats about Obama's record on the economy (for an antidote, please see this WP article which actually looked at the numbers in relation to the "jobs creation summit" Garvin mocks);

5. Misleading and distorted stats about FDR and the New Deal (for an antidote, please see this TPM article which explains how unemployment rates dropped from a high of 25% to 10% before WWII);

6. Obligatory joke about Obama apologizing to everyone (especially the French!);

7. Obligatory Ronald Reagan Was God reference and misleading and distorted stats about unemployment under Reagan (for an antidote, please see this history of unemployment figures under Ronnie);

8. Obligatory Obama/Nobel Prize joke; and

8. Obligatory Biden is a clown joke.

Oh hail, I think I just lost it again.

RRA Update -- Still Waiting For Ruling On Emergency Enlargement

Remember that post from Friday which detailed efforts by RRA lawyers Steve Lippman and Riley Cirulnick to get an emergency enlargement of upcoming deadlines in a matter pending before Judge Cooke?

If you'll recall, Matthew S. Nelles at Ruden McClosky opposed the requested enlargement, basically arguing that the discovery deadlines date back to April and the RRA lawyers were dilatory in a number of respects and should have completed the discovery well before the whole Scott Rothstein stuff broke.

(Matt, if I missed something please feel free to chime in).

Well here comes the reply, filed Monday, which provides further insight into the difficulties faced by the RRA lawyers still at that firm trying to service clients:

GFM is accurate that ACE/Mr. Bennett/Ebway's counsel was "incommunicado" for the period their firm was undergoing this upheaval. Response at p.1. This is precisely why the extensions sought are appropriate. A receiver was appointed and questions about what counsel could and could not do had to be addressed. The computers were down; no email, no word processing, no research capability. Counsel are looking for new homes and making arrangements to move there. The short extensions sought under these circumstances are more than justified.

In a footnote these lawyers also note that Monday, the day of this filing, RRA's "entire computer system (including emails and phone) were disabled for approximately 2-3 hours."

Incidentally, it looks from the certificate of service that Steve and Riley landed or are landing over at Arthur Rice's firm.

Good luck fellas.

Oh, I almost forgot -- I managed to unearth a rare photograph of me taken with Scott and Kim Rothstein at an event we all attended last year.

Enjoy!

UPDATE -- Judge Cooke granted and denied the motion in part. She granted the enlargement as to the summary judgment deadline, but agreed with Matt as to the discovery deadlines, finding no causal relationship between the Scott Rothstein fiasco and failing to complete discovery within the court-ordered deadlines.

Tomorrow Is Such A Long Time

Oh Indiana federal district judge David Hamilton, you have been waiting eight months for confirmation to the 7th Circuit Court of Appeals. You have been endorsed by Indiana's senior Senator Richard Lugar and the Federalist Society of Indiana yet you are about to be filibustered.

President Obama and Senator Reid need to get off their arse, as the NYT editorialized Monday:

As of Nov. 4, he had nominated just 26 appellate and district court judges, and only four of them had been confirmed. Even considering that selecting Sonia Sotomayor for the Supreme Court and getting her confirmed took time, the administration’s pace has been disappointing.

On the confirmation side, the fault lies with the Senate. Obama nominees who have been reported out of the Judiciary Committee have waited months for a vote from the full Senate, far longer than is necessary.

Senate Republicans have been doing their best to drag things out. In March, every Republican senator signed an outrageous letter to the White House warning that they would filibuster any nominee from their home states if they did not approve the choice in advance. That was a dizzying reversal. In the Bush years, Senate Republicans professed to be so upset about Democrats’ filibustering that their majority leader threatened the “nuclear option,” which would have eliminated the use of filibusters for all judicial nominations.

Senate Democrats used the filibuster very selectively against Bush nominees who were true extremists. The real outrage was who was approved. Jay Bybee, the author of the infamous legal memorandums justifying the use of torture, is now a judge on the United States Court of Appeals for the Ninth Circuit in San Francisco.

The Democrats also allowed J. Leon Holmes to be confirmed to the federal bench in Arkansas. He had made a number of offensive statements about women, African-Americans and gay people. In 1997, he wrote that in marriage, “the woman is to place herself under the authority of the man.”

Republican senators, by contrast, are unreasonably opposing good nominees who are well within the legal mainstream. A current example is David Hamilton, a distinguished federal district court judge in Indiana who has been nominated to the United States Court of Appeals for the Seventh Circuit in Chicago. Judge Hamilton has decidedly moderate legal views and strong centrist credentials, including the enthusiastic endorsement of Richard Lugar, an Indiana Republican. Judge Hamilton in no way resembles extreme Bush nominees that Democrats opposed.

Apparently, however, Judge Hamilton, like Justice Alito before him, thinks judges should employ the dreaded "empathy" bomb:

Jeff Sessions, the top Republican on the Judiciary Committee, today told reporters that he plans on filibustering David Hamilton, President Obama's nominee to the 7^th Circuit Court of Appeals. “I intend not to support going forward on the Hamilton vote,” Sessions said. “Unlike Justice Sotomayor, when asked to discuss the empathy standard he has embraced it.”

Senator Sessions, you are a tool and hypocrite of the highest order. May you never need the empathy you seek to purge from our judges.

If today was not an endless highway,
If tonight was not a crooked trail,
If tomorrow wasn't such a long time,
Then lonesome would mean nothing to you at all.
Yes, and only if my own true love was waitin',
Yes, and if I could hear her heart a-softly poundin',
Only if she was lyin' by me,
Then I'd lie in my bed once again.

I can't see my reflection in the waters,
I can't speak the sounds that show no pain,
I can't hear the echo of my footsteps,
Or can't remember the sound of my own name.
Yes, and only if my own true love was waitin',
Yes, and if I could hear her heart a-softly poundin',
Only if she was lyin' by me,
Then I'd lie in my bed once again.

There's beauty in the silver, singin' river,
There's beauty in the sunrise in the sky,
But none of these and nothing else can touch the beauty
That I remember in my true love's eyes.
Yes, and only if my own true love was waitin',
Yes, and if I could hear her heart a-softly poundin',
Only if she was lyin' by me,
Then I'd lie in my bed once again.

Shuster & Saben Seek Sanctions against Bank of America on behalf of Sebastian, FL homeowner

For Immediate Release: On Tuesday, November 17, 2009, Shuster & Saben served a Motion For Sanctions against Bank of America, N.A. for failing to mediate in good faith with a Sebastian, Florida homeowner. The firm’s client, an elite estates and trusts paralegal (who spent over twenty years working with some of South Florida’s top law firms) attended mediation, in Vero Beach, pro-se, prior to hiring the foreclosure defense litigation department of Shuster & Saben, LLC.

Under the Administrative Order of 2009-01 of Indian River County Chief Judge Willaim Roby, lenders seeking to foreclose on the primary residence of Indian River County homeowners are required to conduct mediation prior to moving for summary judgment. Under the administrative order, the lender must have its counsel appear in person and a representative of the plaintiff/lender may appear by phone or in person. The administrative order requires that individual appearing for the lender must have “full authority to modify the existing loan and mortgage and to settle the foreclosure case.”

Prior to the mediation, the lender’s law firm, Kahane & Associates of Plantation, Florida filed a “Form A” identify Krystal Martin as the respresenative of the lender who would appear at the mediation. The subject homeowner, via federal express provided pertinent financial documents, a release of her tax returns, and a hardship letter to the loan servicer, Litton, so that Litton and Bank of America could evaluate modification of the loan prior to the mediation.

According to the firm’s client, when the mediation commenced for the first 30 minutes of the mediation Bank of America had no representative what so ever. The person listed on the “Form A”, Krystal Martin never appeared for the mediation and in her place, a representative of Litton, the servicer on the loan appeared by phone. Since the person appearing was not a Bank of America employee but only a employee of the loan servicer hired by Bank of America, it was apparent that the representative had no authority to do anything without talking to the lender. When the mediation began the Litton representative did not know the current balance on the loan. The lender’s attorney who signed the “Form A” did not bother to attend the mediation. In her place was a local Vero Beach attorney, Nina Ferraro, who is NOT an employee of Kahane & Associates (the law firm hired by Bank of America to bring the foreclosure). Ms. Ferraro had no prior involvement in the case and also did not have the borrower’s current balance.


Despite the homeowner having proof of delivery by Federal Express, the representative of Litton did not have the financial disclosures and hardship letter sent to Litton long before the mediation.

At mediation the lender’s representative could not make a single offer that was specific enough to form the basis of a written contract. There were no offers of interest rate reduction. There were no specific proposals that the borrower would know what her payment would be if the offer was accepted. There was no proposal for forbearance or even for lump sum payment to bring the loan current.
The mediator, who described herself as a real estate attorney, was more than willing to overlook the failure of the lawyer who signed the Form A to be present and the failure of Krystal Martin, (the person listed as Bank of America’s representative of the Form A) to appear. We find it troubling that the mediator did no suspend the mediation until the attorney and the listed representative with full authority was present. Instead the mediator wrote up a form stating that Bank of America had agreed to review the borrowers request for loan modification.

In the mediation of personal injury cases defendants and their insurance companies offer a specific amount of money to the injured party for the release of the pending claims. If the offer is accepted the accident victim knows exactly what they will receive and the insurance company knows how much it will have to pay. We believe that mediation of foreclosure cases should work the same way. In a foreclosure mediation the lender should make proposals that specifically state what the interest rate will be reduced to, whether the loan balance will be reduced, explain the disposition of late fees and attorney’s fees, specify the amount of the new payment and explain the terms for the dismissal of the case.

An example of an offer that is sufficiently specific that it could be accepted and form the basis of a settlement would be an offer to lower the current interest from 8.75% to 5.125%, with a corresponding reduction in monthly payments from $1,298.06 to $898.40 per month, no reduction of loan balance, lender waiver of accrued late fees, and borrower payment of $3,200.00 within seven days of execution as payment toward lender’s filing fees, court costs, and accrued interest. Such agreement should define that if the initial payment is made and subsequent mortgage payments are made for a set number of months (usually 3 to 6 months) then the foreclosure action will be dismissed.

It is acceptable for the lender to precondition loan modification upon the borrower to making three trial payments so long as the borrower receives a written offer that states the interest rate and payment amount the will apply once the three trial payments are made. The terms should specify that if the three trial payments are made in a timely basis then the borrower shall receive the modification. The lender should not use offer a modification to induce the borrower to make three payments only to deny the modification because some form or document was not received. Many borrowers have seen promises of loan modifications that never materialize and end up feeling like Charlie Brown after Lucy pulls away the football at the last possible moment.


It is troubling that the mediator who presided over the subject mediation considers the mediation a success when all Bank of America agreed to do was review the homeowner for loan modification, an action that they were required to do before the mediation. It would appear that the mediator is more concerned about form that substance. The lender and its counsel apparently feel that going through the motion of mediation is enough. We believe that Bank of America’s effort fell far short of mediating in good faith and have moved for sanctions so that the spirit and intent of Chief Judge Roby’s Mediation Order is complied with. Homeowners who have had foreclosure mediations in which no specific offers were made are encouraged to share their experiences in the comments section of this blog.