Monday, November 17, 2014

Denial of Jury trial for penalties of 6 months and less violates defendant rights

Argersinger v. Hamlin, 407 US 25 - Supreme Court 1972
"
It is clear that wherever the right-to-counsel line is to be drawn, it must be drawn so that an indigent 
46*46 has a right to appointed counsel in all cases in which there is a due process right to a jury trial. An unskilled layman may be able to defend himself in a nonjury trial before a judge experienced in piecing together unassembled facts, but before a jury the guiding hand of counsel is needed to marshal the evidence into a coherent whole consistent with the best case on behalf of the defendant. If there is no accompanying right to counsel, the right to trial by jury becomes meaningless."

My Comment:

This absurd opinion clarifies the purpose for incessant legal activism, till the courts get it right.

The Court's statement makes it clear that the 6 month line deprives defendants' of their right to trial by jury jury.    The judge cannot function as counsel for the defense by piecing together facts.  The mere presentation of those facts, properly objecting or arguing against points of evidence by the prosecution, deciding what facts to bring forth, and digging up exculpatory facts, lies far beyond the scope of the judge's duties, but fit perfectly within the purview of the defense counsel's duties. Practically speaking, the judge cannot possibly do the defense counsel's job.   Furthermore juries sometimes have the duty to override a judge's prejudices and inclinations, seeing more to the heart of fairness than the judge.  The judge must hear the same tired cases day in and day out, often becoming numbed by the excesses of some defendants and prejudiced in favor of certain prosecutors.  A jury can see through this when the judge cannot, and demand a just ruling which the judge could not otherwise provide.

On top of this, a defendant in a misdemeanor could lose his wife and children, his job, and all of his assets because of a one-month term in jail risks it even more highly in longer terms.  Depriving any defendant of any constitutional right on the basis of "well, the jail term won't last THAT long so it isn't THAT serious, and won't have THAT big an impact on the defendant's life," is utterly crooked.   A jail term
, however long, as to fundamental purposes:

1.  To separate the criminal from society for a season to prevent further crimes against society during that season.
2.  To have a
terrible impact on (punish) the defendant, so terrible as to make him swear off his criminal inclinations and behavior forever.

A 1 to 6 month stretch in jail can totally destroy a defendant's financial and family well-being.
For these reasons, there should be NO line

This is my opinion as a non-attorney.
--

Bob Hurt            Blog 1 2   f  t  
2460 Persian Drive #70
Clearwater, FL 33763
Email Call: (727) 669-5511
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Saturday, November 15, 2014

Dilemmas of Appraising and Mortgaging Land Separate from Improvements


Copyright © 15 November 2014 by Bob Hurt.  All rights reserved.  Distribute intact freely.

Traditional Lending

In this modern age where every smart phone out-computes office computers of the early 1980's, why do Americans suffer mortgages with the same terms on the land as on the improvements?  Surely, investors' computers and MBA finance specialists can figure out ways of securing home loans with different terms for the land and the improvement.  That could provide a good return on investment for both the borrower and the lender.

Residential realty consists of
  1. The raw land;
  2. General amenities (roads, sidewalks, water, sewer, electricity, cable for phone/internet/tv, HOA deed restrictions, zoning restrictions);
  3. Specific improvements (the house, landscaping, garage and other outbuildings, sport facilities, pool, patio, etc);
  4. Community amenities (location, recreation facility, common area, economic stratum and quality of residents).


The lending process for such realty these days typically results in at least one note and one security instrument.  The lender assigns an interest rate based on numerous factors, principally the conjectured ability and reliability of the borrower to repay, the volatility of the market, term of the loan, the Federal Reserve prime rate, and the likelihood that a foreclosure sale will equitably compensate the lender.  In most loans, the lender lumps together all of the above-enumerated components in the mortgage, and the borrower pays the same interest rate over the same term for the land as for the improvements.

Innovative Bifurcated Loan Products

But, what if the lender charged a different interest rate for the land than for its improvements?  After all, the house and grounds can fall into disrepair, and that will diminish the value in an emergency foreclosure sale.  The raw land stays the same, and its value won't diminish unless a sink hole opens up under the house or the entire community value diminishes because of fracking or a massive demographic change.  In other words, the raw land has much more stable and predictable value than the improvements to the property.

Lenders could break the loan apart into two amounts, one for the land and the other for the house and other improvements.  Lenders could charge a lower interest rate on the land, and finance it for a different amount of time, than the improvements.  This would allow borrowers to retire the debt early, reduce lender risk, and give the lender a fair return on investment.

SCOTUS Throws a Wrench in the Works

Finance specialists might develop such bifurcated loan products, but it seems doubtful that they will introduce any in the near future because of the US Supreme Court ruling in Alice v CLS Bank on 19 June 2014 (see arguments here).  In the opinion, the SCOTUS invalidated hundreds of patents for financial products or business methods, claiming patent laws do not apply to them because they fit within the exception categories of "Laws of nature, natural phenomena, and abstract ideas" within the scope of 35 USC §101, in other words, "building blocks of human ingenuity."  Simply put, the idea itself is not patentable.  Justice Sotomayor summarized the principle nicely:

"I adhere to the view that any “claim that merely describes a method of doing business does not qualify as a ‘process’ under §101.” Bilski v. Kappos, 561 U. S. 593, 614 (2010) (Stevens, J., concurring in judgment); see also In re Bilski, 545 F. 3d 943, 972 (CA Fed. 2008) (Dyk, J., concurring) (“There is no suggestion in any of th[e] early [English] consideration of process patents that processes for organizing human activity were or ever had been patentable”). As in Bilski, however, I further believe that the method claims at issue are drawn to an abstract idea. Cf. 561 U. S., at 619 (opinion of Stevens, J.). I therefore join the opinion of the Court. "

How the Lenders Guarantee the Loan Benefits Them

Let us ever bear in mind the cogent reality that lenders do not care about the borrower's return on investment whatsoever.  Lenders and their agents and associates do everything lawfully possible to maximize their own return on investment and minimize their cost.  The note, the mortgage or deed of trust, the appraisal, the HUD1 report, the TILA disclosures and every other document related to the loan has but one purpose, from the lender's perspective - to make money.  Therefore, they design NOTHING to benefit the borrower except as required by government.   The lender wants the seller to sell the house for top dollar, the appraiser to value the collateral property for that same top dollar, the mortgage broker to qualify the borrower for repayment of a loan for that top dollar.  All the legal forms are engineered to benefit the lender first and foremost.

How Appraisals Benefit the Lender, not the Borrower

I mentioned at the beginning of this essay the idea of separate loans for the land and for the improvements.  Naturally, that implies separate appraisals.  In speaking with a seasoned real estate professional and former appraiser on this very subject today, I began to see a significance of appraisals that I had not previously considered.  The appraiser works for the lender, not for the borrower.  The lender pays the appraiser and gives the appraiser an assignment.  That assignment tells the appraiser how to focus the valuation.  It normally seeks to justify the selling price, not the actual value of the property.  Of course, the comparable sales constitute biggest indicator of price justification.  The appraiser focuses mostly on whether similar properties have sold for an amount similar to the target property asking price.

This does not at all benefit the borrower.  The borrower wants to know whether the property has the worth of the asking price, not whether other buyers have paid a similar price.  The appraiser never answers that question because the borrower does not pay the appraiser or give the appraiser that assignment.

Yet, borrowers nearly universally believe that the appraised value of the realty constitutes its actual worth.  It does not.  And that means the lending and appraisal industry basically runs a scam of deception to fool the borrower into thinking the realty has a value at least as high as the selling price, or in the case of refinances, that the house has the worth of the appraised value. 

Legislative Intervention Warranted

I believe the legislatures should intervene in this deception by mandating that appraisers must give equal balance to replacement cost, income capitalization, and market value approaches to property valuation, and estimate the actual worth of the property, not to estimate whether the selling price is justified.  Ultimately, the borrower pays the cost of that appraisal, even if the lender orders it.  Therefore, it should serve the borrower's interest at least as much as it serves the lender's.
Today, appraisers ignore income capitalization altogether, give scant weight to replacement cost, and focus mostly on market value - what people seem willing to pay for similar properties.
The main problem with market value lies in the vagaries of markets.  If the FED lowers the interest rate, people will rush to refinance or buy realty on credit so as to get the most property possible for their monthly payments.  This will create an artificial demand, and force up the market value through competition of many buyers for few houses.  Ultimately, that will cause replacement cost to rise as builders seek to benefit from the windfall.

Additionally, as we saw in the financial crisis, widespread job loss causes widespread foreclosure which collapses housing prices, and consequently leaves other home loan borrowers with underwater loan balances - they owe more than the value of the house, and therefore they have lost their equity in the home and must sell it at a loss if they sell it at all.  This means they cannot sell it to avert the foreclosure, and the deficiency leads many to seek bankruptcy protection. It has become a gargantuan disaster over the past decade.  This provides further insight into the scam of market valuation method of appraisal.

Dramatic Importance of Income Capitalization Valuation

In reality, all real estate constitutes a business investment.  The owner might use it as a residence or rent it out or convert it into a business site, zoning and deed restrictions permitting.    As an investment, borrowers have good reason to look for a return. This makes the income capitalization approach to valuation intensely important to borrowers.  Appraisers should always ask "How much money could this property produce if turned to business use?"  Obviously, renting it out constitutes the most common such use.  So the appraiser should evaluate the rental income of similar properties similarly situated. 

Borrowers should consider this valuation carefully before agreeing to borrow the money.  Why?  Well, what if the borrower suffered a stroke and the family needed to rent out the house to pay for a care-giver?  The rent and maintenance should exceed the monthly debt service, shouldn't it?  If it doesn't, that means the property was overpriced or overvalued.  That makes the typical appraised value a lie, from the borrower's viewpoint.   Doesn't it?

Challenge to Financial Innovators

If inventors concoct some slick loan products with different interest rates and terms for land and improvements, then they should also concoct some new USPAP (Uniform Standards of Professional Appraisal Practice) guidelines in order to support the borrower's interest as well as the lender's.  Of course, the lenders will never support such appraisal guidelines.  But if they did, they would have far more secure collateral for their investments, and in the end everyone would win.

--

Bob Hurt            Blog 1 2   f  t
2460 Persian Drive #70
Clearwater, FL 33763
Email Call: (727) 669-5511
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Nationalism,Violence, Liberty, Responsibility

George Orwell wrote in his 1945 essay on Nationalism this denunciation of pacifists:
'Those who "abjure" violence can only do so because others are committing violence on their behalf.'
He pointed out the utter hypocrisy of nationalism, a feeling, normally unjustified, that one and one's cause stand absolutely superior to all others.  The above quote symbolizes that hypocrisy.

We live under the freedoms guaranteed by our Constitutions and enforced by operatives and employees of our limited constitutional republican governments which the founders, in their wisdom, never intended as a democracy.  And filthy rich, powerful people control those in government.

And those governments have in fact committed, and do in fact commit, and will in fact continue to commit, violence, allegedly on our behalf, here in the US of A, and in many other places around the world.  I advise against feeling nationalistic at all about that violence. 

Government will readily visit that violence upon YOU at the slightest provocation.  And so will the brigands, serial killers, thieves, robbers, and politicians who roam the land in search of loot, booty, easy prey, and victims.

Now for an aside about Miss Resine Darkly.  I do not know Resine personally, having never met her face to face, but I have communicated with her through social media and caught bits and pieces of her story.  Resine, a pregnant teenager, claims to suffer from PTSD because some male she encountered socially raped and impregnated her.  She intends, unmarried and with no education beyond high school, and no reliable or sufficient source of income or support, to give birth to the baby and rear the child "on her own." 

Resine has absolutely NO CLUE about nationalism and its serious danger to civilized societies.  She has no grasp of the reality that nationalism causes wars of every kind.  She lives in a shell-shock horror of her own making and denies all responsibility for her worsening condition which will become more of a nightmare for her, the baby, and whoever lives around or with her.  Why?  Because she defiantly makes wrong decisions and insists she bears no blame for what has happened to / with her.

Resine lives in her own feminist-inspired La-La-Fantasy-Land of "I don't need a man" nationalism.  She has become determined to force the world around her to accept it, and to swallow her theory that victims of rape bear no responsibility whatsoever for putting themselves in harm's way, not using birth control, etc.  Well, that might be politically correct as a theory, and it might comport with law, but it certainly does not comport with reality.  Otherwise we'd have no law against rape, would we?

You see?  We find nationalism lurking EVERYWHERE, especially in the minds and behavior of clueless, irresponsible teenagers.

Let us return for a moment to the quotation above.  You abjure violence only because others commit violence for you.  That's the main idea of government.  It visit violence on people who disobey the law or who threaten the security of the citizenry.  And it grows exceptionally violent with any who threaten force against or resist government operatives.

But what happens when those operatives fail to commit necessary violence for you?  Should you have the right to have at hand the necessary tools for defending yourself against those who would breach your rights?  Should you have the power and right to visit retribution on those who failed to commit necessary violence on your behalf?  The courts say no to that.

These questions make nationalism irrelevant in respect of a nation.  But they show the importance of people putting their own self-interest ahead of those government operatives who shirk their duty to commit violence in defense of the people's rights?  Without such violence what does the loyalty mean which all government operatives and voters must swear before performing government duties or voting?

I suppose Orwell, through his books and essays, makes the point that the people bear ultimate responsibility for their governments.   I shall make his implicit point that in a nation where more than half the electorate has become stupid, ignorant, preoccupied, disloyal to the Constitution, or otherwise irresponsible, the government must as a consequence become a hotbed of corruption because it will contain politicians who pander to the irresponsible so as to get elected.

If and when that condition arises in America, who will commit violence on your behalf, and what will you do about it when they don't?

I personally believe nationalism is hypocrisy.  Somewhere, somehow, people must stop seeing themselves as the superior group, and  develop responsibility commensurate with the liberties they enjoy.  The must become committed to doing what they genuinely consider the "right" thing. Members of an advanced civilization must see with its eyes open and frankly face the realities of political responsibility.  At the same time, the responsible must find ways to deny suffrage to the irresponsible, lest the civilization dwindle into 3rd world status.

While you ponder this fundamental principle, that liberty goes to the responsible, and the most liberty goes to the most responsible, and the most responsible expend the necessary resources to amass power so they can exercise responsibility, also ponder this:

Who controls the suffrage machinery in America - the political parties, the advertising, the lobbying, the fund-raising, the polling process, and the actual voting machines?  And why haven't others committed necessary violence to prevent those in control from making your vote meaningless?

Whoever controls it has certainly exercised more responsibility than YOU have.  Think about that before you complain about our rigged elections.

The cream rises to the top, all right.  By brute, RESPONSIBLE, force.

Think about it, then ACT.  Become part of the solution, or remain part of the problem.
--

Bob Hurt            Blog 1 2   f  t  
2460 Persian Drive #70
Clearwater, FL 33763
Email Call: (727) 669-5511
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Saturday, November 08, 2014

Public Access to Law; Discipline for Foreclosure Pretender Defenders

To:  

Professor Dale A. Whitman, Dean Emeritus
University of Missouri-Columbia Law School


Dear Professor Whitman:

I saw your article "Learning from the Mortgage Crisis" in a friend's magazine.  I thought I'd write and ask you to send me a copy of the pdf file..  Will you send it to me, please, by return email?  Why haven't you posted that article on your site?

In reading your UCC law journal article (April 2013) recommending a proper nationwide standard of electronic registration for mortgages and notes, I noted several issues which I believe warrant comment.

1.  I fully agree with you.  I don't blame banks for creating MERS in order to reduce their costs related to recording loan security instruments with county clerks.  But the problems related to the musical chairs game with notes, the robosigning, the securitization, the phony bond ratings, the questionable assignments, the foreclosure plaintiffs who lack standing, and the note assignment after suing all beg for a standardized solution.  That system you recommend should also mandate notice from the court clerk of any lis pendens regarding a registered mortgage or deed of trust, and of any foreclosure complaint and of any related final judgment encumbering or freeing the mortgage.

2.  I doubt seriously that anyone but an idiot would destroy the note, and I believe none of the banks did.  I believe they stashed those notes in their warehouse file cabinets and did not want to risk their lost by giving handing them to the courts; furthermore, they wanted the freedom to use them commercially by assigning or handing them to others without the fetter of the court's having possessions, SIMPLY BECAUSE of the UCC requirement that possession alone entitles enforcement.

From your footnote 16 about the article Naked Capitalism, FUBAR Mortgage Behavior; Florida Banks Destroyed Notes;  Others Never Transferred Them, Sept. 27, 2010, available at http://www.nakedcapitalism.com/2010/09/more-evidence-of-bank-fubar-mortgage-behavior-orida-banks-destroyed-notes-others-never-transferred-them.html.

3. I don't believe the destroyed note allegation of the article because, in spite of Florida Statute 673.3091 permitting enforcement of the lost or destroyed note, we have the issue of admission of evidence in Florida courts.  I hope you will address it in a future commentary.

From Florida's Evidence Code in Florida Statute 90.953:
 
90.953 Admissibility of duplicates.—A duplicate is admissible to the same extent as an original, unless:
(1) The document or writing is a negotiable instrument as defined in s.. 673.1041, a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
(2) A genuine question is raised about the authenticity of the original or any other document or writing.
(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.


4.  If the court cannot admit the copy of the lost note into evidence, how does the note become a fact before the court so that the court can enforce it?  Well, how about this handy statute that allows re-establishment?

71.011 Reestablishment of papers, records, and files.—All papers, written or printed, of any kind whatsoever, and the records and files of any official, court or public office, may be reestablished in the manner hereinafter provided.
(1) WHO MAY REESTABLISH.—Any person interested in the paper, file or record to be reestablished may reestablish it.
(2) VENUE.—If reestablishment is sought of a record or file, venue is in the county where the record or file existed before its loss or destruction. If it is a private paper, venue is in the county where any person affected thereby lives or if such persons are nonresidents of the state, then in any county in which the person seeking the reestablishment desires.
(3) REMEDY CONCURRENT.—Nothing herein shall prevent the reestablishment of lost papers, records and files at common law or in equity in the usual manner.
(4) EFFECT.—
(a) Any paper, record or file reestablished has the effect of the original. A private paper has such effect immediately on recording the judgment reestablishing it, but a reestablished record does not have that effect until recorded and a reestablished paper or file of any official, court or public officer does not have that effect until a certified copy is filed with the official or in the court or public office where the original belonged. A certified copy of any reestablished paper, the original of which is required or authorized by law to be recorded, may be recorded.
(b) When any deed forming a link in a chain of title to land in this state has been placed on the proper record without having been acknowledged or proven for record and has thereafter been lost or destroyed, certified copies of the record of the deed as so recorded may be received as evidence to reestablish the deed if the deed has been so recorded for 20 years.
(5) COMPLAINT.—A person desiring to establish any paper, record or file, except when otherwise provided, shall file a complaint in chancery setting forth that the paper, record or file has been lost or destroyed and is not in the custody or control of the petitioner, the time and manner of loss or destruction, that a copy attached is a substantial copy of that lost or destroyed, that the persons named in the complaint are the only persons known to plaintiff who are interested for or against such reestablishment.


Apparently, a Plaintiff can re-establish the lost note and then enforce it so long as he indemnifies the Defendant against some other party's effort to enforce the original note.  Unfortunately, not many plaintiffs claiming to have lost the note have reestablished it in order to admit it into evidence.  In fact, I don't know of any, but I have imperfect access to court records for conducting a research into the question.


FYI, I am not an attorney and have not attended law school.  I'd love to attend, but it isn't likely to produce any benefit at this stage of my life except to satisfy my curiosity.  I study law issues as an avocation.

Since 2007 I have focused on Mortgage issues.  I started by inquiring into the means to beat foreclosures.  Eventually I abandoned that interest in favor of a principle I call "Mortgage Attack."  I have fleshed out the principle in my web site http://MortgageAttack.com.  As I see it, a borrower who breached a valid note cannot defeat a mortgage foreclosure generally.  However, a colossal foreclosure defense legal industry has arisen by which attorneys deceive foreclosure victims with a contrary suggestion.   In actuality, they bilk their clients out of, for example, $2500 retainer plus $500 per month "for as long as we can keep you in the house."  In my opinion, all those attorneys belong in prison for fraud.  To begin with, they KNOW the client will lose the house unless they con the client into a loan modification or short sale.  And then they continue using the same tired and frivolous arguments in the foreclosure pretense defense which they know will fail - complaining about statute of limitation tolling, robosigning, vapor money, no original note, conditions precedent, etc. They use copy-machine pleadings and motions in a dilatory effort to make it seem that they earn their fees.  And worst of all they NEVER bother examining the mortgage transaction documents for evidence of borrower injury by the lender and lender's agents and associates.

If I came to you and said "Professor, I just got accused of breaching the note, and now they want to take my house.  Will you help me please?" what would you suggest?  Wouldn't you say something like this:

Well did you take out a loan?  Did you sign the papers?  Did you breach the note by failing to pay timely?  Let me see those papers, and tell me a little about the events surrounding that loan.  Let me see the appraisal and original loan application, and HUD-1 report, and your TILA notices.?"  

Wouldn't you interview the supplicant to determine whether any shady activities happened?  Wouldn't you verify that the appraiser, mortgage broker, and lender had proper licenses and operated from offices registered with the Secretary of State? Wouldn't you ascertain whether the broker promised one set of terms, but hoodwinked the borrower into signing papers with a different set of terms.  Wouldn't you look for broker lies on the loan application that made the borrower seem more than actually qualified?  Wouldn't you look at the interest rates and origination fees to determine whether they exceeded standards?  Wouldn't you look for patterns of misbehavior that might justify offsets even in the event the statute of limitations had tolled on the behaviors? Wouldn't you look for evidence of violations of the FCRA, FDCPA, TILA, RESPA, HOEPA, ECOA, etc? Wouldn't you look for contract breaches, fraud and other tortious conduct, legal errors, and regulatory violations that injured the borrower? 

Normal foreclosure pretender defender attorneys might give those efforts lip service, but virtually never do them. They don't do them because they don't know how, a byproduct of lack of intimate familiarity with the regulations and tort/contract/mortgage law, and because of laziness and greed.  A competent mortgage examination team might spend 40 to 60 hours on such a project.  A typical. lawyer would want to charge a broke foreclosure victim $12,000 to $18,000 for the service.  As a result, the lawyer would have to get out of the business of foreclosure defense.

But, that is exactly what it will take for lawyers actually to give their foreclosure victim clients any hope of convincing the lender to modify the loan to the borrower's benefit, or of convincing the court to order set-offs from the debt or compensatory and punitive damages to salve the borrower's injuries.

Such winning awards do happen, but they are exceedingly rare.  And we shall never know how many such cases settle out of court because the borrower managed to convince the lender to avoid the related litigation.

Here's an anomalous case for your reference:

http://mortgageattack.com/2014/07/10/brown-v-quicken-loans-shows-how-to-punish-abusive-mortgagees/

In that small article, I provided a link to all of the case documents I could find on the web.  You might find more using your WestLaw resources.  I have expected a final resolution of the case for several days.  The appraiser settled for $700K, and the trial court ordered Quicken Loans to pay nearly $5 million in damages, fees, and costs.  Quicken appealed.  Maybe you can find out when the West Virginia Supreme Court will issue its final opinion.

I consider Brown v Quicken Loans the "Poster Child" Mortgage Attack methodology case from which all pretender defender lawyers should learn.  But I estimate that lenders and their agents and associates have injured or cheated at least 80%, and upwards of 95% of mortgage borrowers in the past 15 years.  Precious few attorneys hold them accountable for that maleficent behavior.  And let's face reality.  Brown's lawyer took the case on contingency because he knew the judge and his sentiments well and knew his client had suffered extraordinary injuries, and he knew the client as decent person.  Few lawyers will take any foreclosure case on contingency until after having made it ready for trial.  That means the injured borrower must handle the case personally, if anyone handles it at all.

And this brings me to my final point.

You have wisely suggested a dramatic and electronic improvement to the loan registration problem.  But we have two far worse problems:

  1. Bad ethics in the foreclosure "Pretense Defense" attorney business model - it should be outlawed.
  2. Lack of availability of online resources for pro se litigants who should not need a lawyer for "mortgage attack," coupled with the exorbitant cost imposed by the legal services monopoly.

I know of no cure for the bad ethics other than widespread class actions against foreclosure pretender defenders and State Attorneys attacking them for fraud.  Any attorney commits fraud by re-using frivolous legal arguments that he knows will lose.  Obviously, judges will not punish them, or they already would have.  And just as obviously, law school ethics professors have had little impact on the greed factor that drives attorneys to cheat their clients .

People would find it easier to prevail against crooked banks if they could afford an aggressive, competent attorney. But people cannot afford them generally because the attorneys enjoy a monopoly on legal services. Unauthorized Practice of Law statutes (UPL is a felony in Florida) have made possible that legal services monopoly.   But the law does not protect people against incompetent, lazy, or crooked attorneys. Legal writers have recognized this as an outrage for decades:


And of course many people would fare well in court on their own if they only learned the basics of litigation, civil procedure, and evidence code in high school.  Unfortunately, it has become exceedingly difficult to obtain a decent legal education in high school, college, or on one's own because of the practice of hiding the law or making it inordinately expensive to discover.  Yes, we have the laws.  But government has posted them on a sign 20 feet in the air, and only attorneys have the ladder needed to read that sign.  By this I mean the actual law has become out of reach, not because people cannot find it, but because of the skill they need to locate the relevant part - court rulings.

Good attorneys support their legal arguments in their court filings with case law.  They generally find that case law using a legal search engine to which they subscribe for a monthly fee.  But the filings that resulted in that case law sit in a clerk's file cabinet in courts across America, or in law books in law libraries that most people simply cannot access.

And that law which people can access suffers from exiguity or poor organization. In Florida only parties to the case and their lawyers can access the electronic filings in the case.  This seem more than a little strange in light of the reality that the constitution mandates that nearly all proceedings remain open to the public. 

Thank God for Google Scholar and Google Books.  Google has made many old law books available, and many if not most of the appellate opinions across America available to the public without requiring that people browse the court sites.  Google has done the job that rightly belongs to government, particularly the courts, of making the law available and visible to, and through the search engine somewhat well-organized for, the masses.

I realize that you personally can do nothing about the terrible ethics in the mortgage foreclosure and foreclosure defense industry.  

But perhaps you can propose an electronic means of solving the problem of relative unavailability of the law to non-attorneys.  Some federally coordinated electronic repository should exist akin to PACER, but free, and fully searchable by topic, party, judge, attorney, clerk, and bailiff, nationwide, making all court dockets and filings, from traffic and all other administrative courts, county and other trial courts, and appellate courts, available to the public, particularly to Americans and students in public and private schools.  And that access should cost the public nothing, for the law and the documents leading up to it, should become and remain free for all to read at home through internet access.

And need only one good reason for this.  People can easily commit a vast array of "infractions" and crimes without ever leaving home, and become most susceptible to harassment and arrest for alleged infractions and criminal acts upon setting foot outside the home.  It seems only fair that people should have the benefit of finding, reading, learning, and knowing the law before venturing out of the privacy of one's home, if any such privacy remains.

Sincerely,

Bob Hurt


Bob Hurt - 727 669 5511 - http://bobhurt.com
2460 Persian Drive #70, Clearwater, Florida 33763, USA
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Saturday, November 01, 2014

Application of Federal Income Tax to Ordinary Americans

Correspondent asked:

Did Congress authorize federal income tax on any or all intrastate activity earnings? If so, where it can be read for reference?


Bob Hurt responds:

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Let's cut to the heart of the matter, whether and to what extent ordinary Americans owe income tax returns and payments to the government.

I sent the Lawmen Group a commentary about a tax crime trial I attended a few weeks ago.  The judge absolutely prohibited discussion of the law, so as not to confuse the jury. He would not admit into evidence any of the defense counsel's proffered dozen or so supreme court opinions.  "He who controls the evidence controls the outcome of the case," the defense counsel intoned afterward.

To the judge, US Attorney, and IRS agents in attendance, the law is a foregone conclusion.  As they see it everybody must file a return if receiving income in excess of some minimum, and pay taxes on the gain or profit of that "income"; people get no deduction for the labor they exchanged for wages.

The IRS provides this information about filing requirements. These sections of  the Internal Revenue Code (IRC) at 26 USC seem to apply to most people: 1, 61, 62, 63, 3402, 6011 and 6012. 
Read this simple explanation.

For more details in the actual law, see the United States Code here and the Code of Federal Regulations here; download IRC in pdf form here

Since ALL tax protesters either disagree with the law or think it does not mean what it says or that it violates the constitution or that the IRS implements it wrongly, the inability to expose the jury to your confusion over the law means that you don't have meaningful access to them and they cannot walk in your moccasins, so to speak.  But, tax protesters who fail to heed the filing and payment requirements have little chance of convincing government agents that they did not willfully violate the tax laws.

The DOJ proved to the jury in the foregoing case that the defendant KNEW of the duty to file and pay, but flouted that duty. The jury convicted the defendant of 5 counts of willful failure to file a tax return and 5 counts of tax evasion. 

When you watch things like that unfold before your eyes, it has a fairly profound impact on your belief in tax protester legal theories.  Right or wrong, the DOJ has learned how to get the courts to rule in their favor, and what the courts rule IS the law.  Get used to it.  And become politically active and change the law.

I have attached three articles ALL OF YOU MUST READ, and pass on to others.  The first, the Criminal Tax Holy Grail article by a former DOJ Tax Crime attorney Nathan Hochman, tells how to get the DOJ to decline to prosecute.  The other two, by profoundly successful (won over 90% of the tax crime counts against his clients over the past 37 years) Houston attorney Michael Louis Minns, explains the evolution of the courts' interpretations of willfulness, and how to cross-examine (beat up) government witnesses.  Minns also wrote a valuable book about How to Survive the IRS, required reading for the tax protester community.  But how do you suppose even Minns can convince the court to allow the jury to hear anything about the law OTHER than what the Grand Jury put in the indictment?

The articles presuppose "you" have come under scrutiny of the IRS, the DOJ got you indicted and filed criminal charges against you, and you have a highly competent and experienced lawyer working on your case to keep you out of prison or minimize your sentence.  They don't raise the question of whether any law requires you to file an income tax return or pay income tax.  THAT law is ASSUMED.

And, FYI, I have not heard any tax crime attorney declare a belief that no law requires ordinary Americans to file a return or pay tax.  That ought to make you wonder whether the argument has supportable legal validity.

I have encouraged people (here I go again), who intend to battle the IRS or flout the courts' interpretation of taxation laws, to make themselves judgment proof and prepare to lose loved ones, family, friends, neighbors, dwelling, boat, vacation home, the contents of bank and investment accounts.  The IRS has trained its agents to track you down and snatch your assets, thereby making it virtually impossible for for most of their targets to afford a competent attorney to fight them in court.  And the US Department of Justice contains the world's largest and most powerful law firm with virtually unlimited resources to suborn grand and petite jurors, witnesses, and judges, and then beat you to a pulp in court and get you committed to a lengthy prison sentence away from hearth, home, honey-pies, and puppies.  If you are a tax protester the DOJ will publicize your conviction, sentence, and incarceration broadly so as to deter others from following in your footsteps.

I do not say I agree with the courts' interpretation of the 16 amendment, law, regulation, and behaviors of government agents.  I simply echo the immortal words of Jim Croce:


"You don't tug on Superman's cape, You don't spit into the wind, You don't pull the mask off that old Lone Ranger, And you don't mess around with Jim..."

... Jim, of course, being the Congress, President, Treasury Secretary, Commissioner of Internal Revenue, IRS, DOJ, US Judges, and federal grand and petite jurors - in short, the US GOVERNMENT - operating in concert to take your money and punish you for not submitting to their scheme of "voluntary compliance."

THAT is why I encourage people to spend the resources making money that they would have spent fighting the government, to so arrange their affairs as to avoid all the tax possible, and then to get on down the road of life making babies, rearing them to become responsible, powerful, politically active, wealthy Americans, and then, someday, go to heaven with a smile on the face and song in the heart.

I encourage tax protesters meanwhile to become knowledgeable in the law, disposed to using it, and extremely politically active so as to work together to educate others about the abusiveness of the income tax and to mobilize them to hammer legislators into eliminating income tax altogether along with the senseless wars and deficit spending that make it seem necessary, and to convert Social Security tax into an actual investment program for old age and disability needs.

In the end, it cannot matter much whether you owe a return or a tax.  If "Government" thinks you do, you must file and pay, or dispute it in court and suffer the consequences.  AFTER you file and pay, then you can sue to get it back.  Sometimes, if you end up owing and cannot pay, you can pay what you can along with presenting an offer in compromise.

If you don't like this system, get busy building a political organization to change the system to something better. 

Bob Hurt            Blog 1 2   f  t  
2460 Persian Drive #70
Clearwater, FL 33763
Email Call: (727) 669-5511
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Friday, October 24, 2014

Pesky Questions about Privileges, Rights, and Responsibilities

Pesky Questions about Privileges, Rights, and Responsibilities 

  1. What does the term "rights" mean? 
  1. What do the terms "responsible" and "responsibility" mean 
  1. What rights do you have? 
  1. In what way do rights incur the cost of commensurate responsibility? 
  1. How much responsibility can you reasonably expect from these types of people? 
  1. Children under 25 driven by emotion and hormones? 
  1. Inveterate criminals? 
  1. Welfare recipients? 
  1. The indigent and homeless? 
  1. People motivated by lust for money and power? 
  1. People who run up huge debts and then don't pay them? 
  1. People who lack the cognitive ability to graduate from high school? 
  1. People who have never graduated from high school? 
  1. People who sincerely believe the world is flat or is only 6000 years old? 
  1. People who believe God would condone the murder his own perfect son to atone for the sins of his less perfect sons and daughters? 
  1. People who swear an oath to support a constitution they have never read and do not remember and never did thoroughly understand? 
  1. What happens when a society defeats the law of "survival of the fittest" such as by paying welfare to the unfit? 
  1. Who bears the responsibility for killing a dangerous snake that comes around people? 
  1. How do you know that a government employee does something illegal or repugnant to the constitution? 
  1. Who has the right to determine a person's guilt or non-guilt? 
  1. How do innocence and non-guilt differ? 
  1. How can triers of fact determine guilt or innocence if they cannot read the law and evaluate relevant facts about the law and its meanings on their own? 
  1. Describe a strong and high-quality family - how its members behave and interact with society and government 
  1. How does the strength and qualities of families generally determine the quality of Government? 
  1. What political responsibilities do people have? 
  1. How can an observer know that people have shirked their political responsibilities? 
  1. What, in practical terms, does this provision of the Declaration of Rights in the Florida Constitution of 1838 mean: "... all political power is inherent in the people, and all free governments are founded on their authority, and established for their benefit; and, therefore, they have, at all times, an inalienable and indefeasible right to alter or abolish their form of government, in such manner as they may deem expedient." 
  1. Do people generally enjoy a right which they do not possess the power to enforce against tyranny in and out of government? 
  1. What word or words symbolize a government employee who uses power of office or job to tyrannize others, violate their rights, and prevent them from removing him from power? (What us the proper term for such people). 
  1. What do the terms "republic" and "republican form of government" mean? 
  1. What does it mean that the US Constitution guarantees the states a "republican form of government?" 
  1. Can republican constitutions, that require separation and balance of powers between branches of government, properly allow agents of the judiciary, subject to the discipline of the Supreme Court, to infest every branch of government? 
  1. What danger does such infestation present to the rights of the people? 
  1. What can YOU do to correct such a situation? 
  1. What mechanism exists to prevent overeager prosecutors from harming the people? 
  1. How does that mechanism operate in your state, and what problems does that operation cause? 
  1. How should it operate? 
  1. What can YOU do to make it operate properly? 
  1. What general prescription can you devise that will restore lawfulness and common sense to, and prevent abuse or people's rights, by employees and agents of government? 
  1. How do rights differ from privileges? 
  1. Who has the responsibility for teaching children about these? 
  1. privileges, rights, and responsibilities,  
  1. respecting and demanding respect for rights,  
  1. requiring demonstrations of responsibility as a prerequisite to the exercise of dangerous rights like voting, taking government employment, and procreating  

What's the point? 

Simple.  Lots of people talk, complain, and whine about abuse of their rights.  Butthey never understood underlying principles and never prepared for the responsibility of rights.   
And they stupidly fell for the notion that just because we might all seem equal in God's eyes (hey, only God knows that for sure), we certainly are not equal on here on this rock.  Like Orwell's governing pigs said, "Some people are more equal than others."  We ALL need  "Equalizers" to keep the pigs from running over us. 

  1.  The FIRST equalizer is intelligent parents 
  2. The SECOND equalizer proper application of training principles at home. 
  3. The THIRD equalizer is common sense 
  4. The FOURTH equalizer is a good classical education, which woefully few of us have 
  5. The FIFTH equalizer is personally accumulated and protected WEALTH 
  6. The SIXTH equalizer is physical power, including training in body, management and use of weaponry 
  7. The SEVENTH equalizer is political activism and power - the moral, physi and financial support of a large number of people  

If you haven't gotten busy building your equalizers, DO IT NOW.