Friday Afternoon Frolic

Bloviating Bill is good for business! I had more traffic to my site on “Bill’s Day” than any other day since I started opining into cyberspace. I think I will officially dedicate every 26th of the month as “Bill’s Day” so we can investigate and discuss what Billy’s been doing. For example, 02/26/2008 will go down in history as the day that Bill singlhandedly embarrassed all of Cincinnati in front of the entire world. A check of the sources of traffic to my site indicated that searches for racist Bill Cunningham originated from ISP’s all over the world. And Bill got much more than the allotted 15 minutes. Loud-mouth screaming idiot Sean Hannity pulled him out from under the bus long enough to give him another 15 minutes to spew, and famous hypocrite Rush Limbaugh publicly praised our boy Bill. Gosh, I couldn’t be more proud to be from Cincinnati.

Here’s an interesting bit of information. The Ohio Senate’s Minority Leader was fined $1500.00 for his consistent pattern of failing to file campaign finance reports. Despite his inability to get his own finances in order he was “installed in January as the Senate's minority leader in part because Democrats thought he would be able to improve fundraising for the caucus to help get more Democrats elected in the coming November election.” I guess raising money and counting it require different skills than keeping track of it.

And what about a drunk toddler and another woman who should know better having sex with a 15 year old?

Maybe we are bunch of backwood yahoos and Bloviating Bill is our Emily Post.

Is it any wonder that I am Always Annoyed?

Messing wit the calendar

Happy St. Oswald’s Day!

So, today comes around once every four years and has done so since 45 BC. Leap years and leap days are necessary to keep the Gregorian calendar in line with the earth’s revolutions around the sun. Leap Day was started in 45 BC by Julius Caesar.

The first accusations in the Salem witch trials were made on Leap Day in 1692. Serial killer Richard Ramirez was born on Leap Day in 1960. Hattie McDaniel was the first black person to win an Oscar on Leap Day 1940. The first Walk/Don’t Walk signals were installed in New York City on Leap Day in 1952 and are still being ignored on Leap Day in 2008. Dinah Shore was a Leap Day baby, as was Herman Hollerith, the inventor of the 1st electronic tabulating machine. Oddly enough, February 30 was once a real calendar day too. Interested in Why Leap Years are Used?

Bloviating Bill Cunningham

I did not have a subject for today until I read this: McCain Rebukes Cunningham The question of the day is why would anybody allow this jackass to speak on their behalf? If everyone in the country didn’t already think we are a bunch of bigoted back woods yahoos, they sure do now. Bill has single-handedly set the city of Cincinnati back thirty years. Mean spirited racist demagoguery has no place in the political dialogue of Cincinnati. Just because bloviating Bill is allowed to spew his particular brand of stupidity on Clear Channnel doesn’t mean he should be allowed out without a leash to spew it at the public. I fault those would give him the podium from which to spew it. I am sure that John McCain was very unpleasantly surprised to see what Cincinnati had done for him.

And I am astounded to read this, Hamilton County Prosecutor Joe Deters said, “Cunningham's comments were not surprising. Bill does this kind of thing a lot at Republican events, and we're used to hearing it.''

What? You’re used to it? You expected him to spew like this? Shame on you!

Now I understand free speech and all, but there comes a time and a place when someone needs to take a stand. If the Republican party had not given bloviating Bill the podium, he would not have had the opportunity to embarrass all of us in the national spotlight. Bill’s listeners obviously enjoy his brand of stupidity, let’s confine Bill to those who actually choose to listen to him.

More Annoyed than Normal because a jackass like Bill Cunningham can actually find an audience.

Bits from the Enquirer

I am just saying if I never have to see that grinning boob and his pathetic sex-starved wife again, it will be too soon. Smiling Bob on Trial

I saw this last night. An indication that some schools actually care about educating their students? Congratulations Rachel

Perhaps better screening is in order? Seems like a very light sentence to me. Six months for rape? Oh, I get it, reduced to sexual battery. Some plea deals seem illogical to me. This man was given a position of trust and he violated it. Shame on all of y'all. Six Months for Rape by an Police Officer

One More Friday Thought

If ever there was a cautionary tale about the effect of having more money than brains, this is it:

Trying to Bribe a Judge??

Hypocrisy

Time for the Friday Afternoon Frolics. Today's subject is hypocrisy. I detest hypocrisy and hypocrites more than anything else I can think of. My issues with hypocrisy can be traced to the death of my father. The good townsfolk fell all over themselves expressing their sorrow at his death. Such displays were shocking to me, there was not a single one of them who would have a lifted a finger for my Dad.

The Oxford English Dictionary tells us that that Reynard the Fox is a famous hypocrite. I couldn't remember Reynard, so I googled him and found this. "Reynard the Fox was medieval Europe's trickster figure, a nasty but charistmatic character who was always in trouble but always able to talk his way out of any retribution." Jacob Grimm, of the Brothers Grimm, believed that Reynard and other “fables of beasts, applied, with a strong national feeling, to corruption growing among strong men who wronged the poor and used religion only as a cloak for violence and fraud.” The Medieval Bestiary, The History of Reynard the Fox Yikes, does any of this sound familiar? Can you think of today's Reynard the Fox? Did you vote for him? Jacob Grimm’s father was a lawyer. Interesting, I think. see Jacob Grimm Unfortunately, I see hypocrisy a lot, it is, alas, part and parcel of the legal profession.

Hypocrisy is defined a “a pretense of having a virtuous character, moral or religious belief or principles, that one does not really possess; a pretense of having some desirable or publicly approved attitude. Dictionary.com There are more nuanced definitions to be found, but you get the gist.

So let’s talk about famous and infamous hypocrites. Well, there's Reynard, and two others that come most readily to my mind are those bloviating jackasses, Rush Limbaugh and Bill O’Reilly. You can google or yahoo either one of these orating jerks and find lots of examples of their unique brand of hypocrisy. My Rush Limbaugh favorite is his discourse about drug addicts as the dregs of society until it was revealed that he is in fact a drug addict himself. Below are a few of my favorite Rushisms about drug addicts:

When you strip it all away, Jerry Garcia destroyed his life on drugs. And yet he's being honored, like some godlike figure. Our priorities are out of whack, folks. --Rush Limbaugh radio show (quoted in the L.A. Times, 8/20/95)

There's nothing good about drug use. We know it. It destroys individuals. It destroys families. Drug use destroys societies. Drug use, some might say, is destroying this country. And we have laws against selling drugs, pushing drugs, using drugs, importing drugs. And the laws are good because we know what happens to people in societies and neighborhoods which become consumed by them. And so if people are violating the law by doing drugs, they ought to be accused and they ought to be convicted and they ought to be sent up. * * * What this says to me is that too many whites are getting away with drug use. Too many whites are getting away with drug sales. Too many whites are getting away with trafficking in this stuff. The answer to this disparity is not to start letting people out of jail because we're not putting others in jail who are breaking the law. The answer is to go out and find the ones who are getting away with it, convict them and send them up the river, too. -- Rush Limbaugh show, Oct. 5, 1995

More Quotes A double standard perhaps? Oh, how the mighty do fall!

Bill's shining moment for me is settling the lawsuit while uttering virulent tirades against those who would seek the truth about his “alleged” sexual harassment of a producer. Whee, what a stench The spin stops where?

Hey, and what about "political correctness?" To me, political correctness is code for "feel free to be a hypocrite." I agree with Glenn Beck. Political correctness is ruining our country and will be the downfall of us all. PC Phrases

And finally, let's consider this:

It's perfect!!

I found this over at cracked.com in an article entitled "Banner Ads We'd Like to See." Cracked It was submitted by cracked.com reader evilkumquat.

Have a good weekend, Ever Annoyed

Collecting Fees

How would you like to read this opening paragraph in the Court of Appeals decision vacating your fee award:

Lead Plaintiffs’ Counsel in this class action case persuaded the district court to divide up a $6.875 million lump sum attorneys’ fee award among more than six dozen Plaintiffs’ lawyers according to Lead Counsel’s proposed allocation. This might be permissible, except that the court was so persuaded in an ex parte hearing and apparently without benefit of supporting data. The court further accepted Lead Counsel’s proposed order sealing the individual awards; preventing all counsel from communicating with anyone about the awards; requiring releases from counsel who accepted payment; and limiting its own scope of review of objections to the allocation. These and other facets of the court’s process are unauthorized and objectionable. Pursuant to the appeal of attorneys who challenged their awards, we VACATE the order approving the allocation and REMAND

In re High Sulpher Content Gasoline Products Liability Litigation, Look Here (I borrowed this link from the Insurance Coverage Blog, I guess if it is not OK, I will hear about it.)

I am once again puzzled.

How can an intelligent lawyer possibly think that an ex parte hearing with a Federal Judge for the purpose of dividing the booty would ever pass muster and withstand scrutiny from the Fifth Circuit (especially the Fifth Circuit).

How could an intelligent Federal District Court Judge possbily be persuaded that this was an accepatable mechanism to hear a fee application.

Perhaps the operative word is intelligent.

As ever, Always Annoyed.

Foreclosures in Ohio

My sources tell me that the foreclosure mediation program has actually gotten underway in Clermont County. If you are interested in pro bono representation of foreclosure Defendants during the mediation phase in Clermont County, contact Ginny Whitman at Legal Aid in Hamilton County. Legal Aid is coordinating this for Judge Ringland.

I took the time to look at the lambasting that the AG received from Magistrate Bachman. At first blush, my advice to the AG is, geesh, pick your cases a little more carefully if you are going to grandstand. It seems the AG entered the fray well after the property was sold. Just look at these dates: Complaint filed on June 25, 2007, State added as a Defendant on August 17, 2007 with service on the 22nd, Motion for Default granted September 27, State files answer on October 9 (a little tardy don't you think), Amended judgment entered on October 25, property sold at Sheriff's sale on November 29, 2007. AG files a Motion to Dismiss on December 7, 2007 AND delivers it to Judge's courtroom thereby pissing off the Magistrate before even getting out of the gate. The Magistrate took the opportunity to give the AG a few ethical lessons and a big whack on hand saying "... this court must conclude that the Attorney General was using this court to advance a political agenda rather than seek a legal remedy in a court of law." (Opinion at 4).

The only thing I want to say about this "legal remedy" statement is that "forcelosure" is an equitable action. For example, do you see any similarities here:

In closing, we note that, if ever there were a situation that cried out for a court to use its equitable powers, this was the case. Here, an employee, who was in legal and financial difficulties, asked his employer for help. He made an agreement whereby his home was held as collateral for the repayment of his debts. The employer, seemingly intent on keeping the employee's property, went to extreme lengths to keep the employee from repaying his debt, first, by adding new debts not encompassed by the original agreement and, later, by attempting to evict the employee from his home. Here, the trial court used its equitable powers to term the agreement a mortgage. By doing so, it prevented Kaeser from retaining ownership in a $ 40,000 home in exchange for lending Gross roughly $6,000, some of which Gross had already repaid. Such a result would have been fundamentally unfair. Consequently, we affirm the judgment of the trial court. Kaeser v. Gross, 2002 Ohio 4050 (Ohio App. Ct., 1st Dist., 2002)

I am, however, much more interested in the logic underpinning Magistrate Bachman's decision about the real party in interest. I continue to be mystified as to how a person or entity not the proven owner of the debt can enforce the terms of the original mortgage and note. But let's look at the decision. It seems that the State argues, as best as I can get from the opinion, that the current owner of the debt is required to record this fact and attach a copy of the recorded document to the Complaint. By failing to do so, the State argues, the Plaintiff has no standing and cannot show that it has "suffered an injury in fact, defined as an invasion of of a legally protected interest that is concrete and particularised" (Opinion at 5, citing Bourke v. Carnahan, (October 13, 2005) 163 Ohio App. 3d 818 (App. 10 Dist.)). We all know that to invoke the Court's jurisidiction, you must show that you have suffered an injury. However, with notice pleading it is sufficient to allege such a fact. The allegation must be made in good faith -- after all, equity requires clean hands. I believe that in addition to picking the wrong case, the AG went about this wrong way. I think I would have attacked the default by alleging that the plaintiff had never proved, but for the presumption (see below), that it had the legal right to enforce the debt. Nonetheless, here is what the Magistrate says:

“… parties to a Note, subsequent holders of the Note, nonholders in possession of the Note who have the rights of holders and persons not in possession of the Note who are entitled to enforce the Note pursuant to other statutory requirements, may enforce the Note as to each other. Parties falling within these legal categories (my emphasis) may enforce the terms of the note even if the Note is lost, stolen or destroyed.” (Opinion at 6).

“Attaching a copy of the note to the complaint creates a rebuttable presumption that the Plaintiff is the holder of the note and the real party in interest." (Opinion at 7)

“Whether a party to the action is a party to the note or mortgage is a question of fact to be determined at trial or other proceeding where the plaintiff seeks judgment.” Id.

What? The plaintiff? The Magistrate just gave the Plaintiff a rebuttable presumption that it is real the party in interest and the holder of the note. Why would the plaintiff do anything unless its status was questioned. It seems to me it would have been better, rather than grandstanding with a motion to dismiss, to attack by putting the plaintiff to its proof that it has the legal right to enforce the debt – that it is in fact, a party “falling within these legal categories.” I cannot discern that the Plaintiff was ever asked to demonstrate to the Court that it was legally entitled to collect this debt or that it ever presented to the Court the documentation, beyond the rebuttable presumption, that it was within the legal categories of persons who may enforce the Note.

Here is my problem. The Magistrate opines "The original note and mortgage executed by the Defendant were attached to the complaint. It is upon these documents that the plaintiff seeks relief in the instant action." (Opinion at 9) This whole debate arises from the fact that the plaintiff was not a party on the original note and mortgage. But see this from the Minnesota Federal Court So, I am apparently wrong. But I can't figure out how this can be. Putting the Plaintiff to the proof of its legal right to enforce the debt does not seem to matter to the the Minnestoa Court or to Magistrate Bachman.

Such proof should be the absolute minimum that the court should require before putting someone out of their home. My point is this. How can a person or entity who has not proven that it has the legal right to enforce the terms of the mortgage and note force the sale of someone's home? This is just wrong. And inequitable!

I can only conclude that sloppy pleading led the AG to this result, either that or the Magistrate wanted a good grandstand of his own. BTW the AG was again pasted by the Magistrate in Residential Funding v. Anthony Muhammad. I did find this with some more factual information about the case.

Monday’s decision comes in a case filed by Deutsche Bank National Trust Co. against Telisa Barnes. She bought a $128,000 home in Northside a year ago with the help of a mortgage from Equifirst Corp. Five months later, Deutsche Bank filed to foreclose, saying she owed $127,892 – plus interest. The state of Ohio had an interest in the property because Barnes put the house up as part of a $20,000 bond in an aggravated menacing case against another defendant. Dann argued that Deutsche Bank was not a “real party in interest” because it didn’t own the mortgage paper when it filed its foreclosure case. The magistrate ruled federal precedents don’t apply because federal courts have limited jurisdiction in foreclosure cases, while state courts are required to take them.
The Home Equity Theft Reporter: Ohio State Judge Rejects AG's "Real Party In Interest" Argument; Allows Foreclosure To Continue

I think the Cleveland Federal Court was on the right track:

A Cleveland federal court ruling that has the potential to block foreclosures across the country looks as if it is already doing that in the court where the decision was written. And the bandwagon may be just starting to roll. The
federal court averaged 100 new cases a month before judges recently started insisting that banks provide up front a document giving them authority to collect loans made by other lenders and held by investors. As of Friday, the number of new filings in December was two. Foreclosures are rare in federal courts but zoomed in Cleveland's in the last two years as banks seized a quicker alternative to a clogged Cuyahoga County system. Foreclosures are mounting nationwide, and filing could get tougher throughout the country if state courts adopt the federal ruling.

The Home Equity Theft Reporter: Ohio Court Rulings Frighten Away Federal Court Foreclosure Filings

Now look at this case In re Cook: Rogan v. Bank One, 457 F.3d 561 (6th Cir. 2006) and these Comments:

Recordation of the mortgage in the land records is not of critical significance to a debtor. As a practical matter, what a debtor really needs to know is the identity of the servicer. Notice of changes in servicers are required by federal law. In the modern world of mortgage securitization, the mortgage note may change hands many times on its way to a mortgage pool, and the benefits of securitization for borrowers would not be realized if all mortgage assignments had to be recorded. In fact, a striking fact of this record is that the note actually transferred with each assignment until it reached the pool held by the trustee. This is good practice, but doesn’t always happen. Note that perfection of the mortgage against subsequent takers of the mortgagor’s property is a different question from perfection of the assignment against competing assignees for security. This can be accomplished either by possession of the note or by recording a “realty paper” filing as a UCC filing.


I remain Always Annoyed and still puzzled.

It's a Holiday For Some

So I am blogging into the void on President's Day. I really wanted to post a comment today but was almost sidelined by weather in Chicago yesterday. It is extremely liberating to travel without access to a computer and the internet, but when the trip is over, a true child of technology gets antsy. I did finally make it home to my laptop. Beware, mixed issues to follow:

On this day that we celebrate two of our great presidents, let's talk about our Constitution and the right to privacy. There is currently a simmering sex scandal in Hong Kong -- you can find it on MSNBC in the World Blog and elsewhere, I am sure, if you google Hong Kong Sex Scandal. I can't seem to create a link, don't know why, don't know enough to know why. Anyway, the scandal itself is not the issue, my concern is the way that the information was disseminated coupled with the fact that once the information was put out on the internet, there is no way to ever get it back, to undo the wrong and clean up the mess.

There really is no concrete, bright line protection of the "right to privacy" in our Constitution. The right to privacy is generally said to be grounded somewhere in the 9th, the 3rd, the 4th or the 5th Amendments, depending on the issue. I think it is just a basic human right. We possess a right to privacy because we should possess a right to privacy. Plain and simple, easy to understand. Some stuff is just not your business. This fact, however, does not prevent folks from prying into our business, tho, does it? That is why things like sex, marriage, abortion rights, consenting adults stuff, and bedroom stuff are always in the news. Other folk's agendas, eh? People with agendas think that their agenda gives them the right to violate my rights and your rights.

I am not a strict contructionist, I believe the constitution is a living document and was intended to be so by the framers. Those guys were just way to farsighted and smart to believe that the Constitution could stay static. But they could only work with what they knew at the time. Or, perhaps they agreed with me, some stuff is just not your business, and thought that such a basic tenet did not need to be written down and explained to intelligent men and women. But, the agenda folks are a fact of life and we must constantly explain this simple premise to them.

The initial analysis is framed as the "expectation of privacy." Surely you and I have an expectation that information stored on our computer will remain private unless we make the choice to tell others via You Tube or Face Book or however. Now, here is the dilemma, assuming that we do possess this right and we are assuming that to get to the point here, when information that is entitled to be kept private, is somehow broadcast to the entire world, how is the violated privacy right to be vindicated? When or if I take my computer to be repaired, I am at the mercy of the person into whose hands I entrust that information. If that person is a bottom feeder, he or she will be happy to tell the world my secrets. The internet is the great leveler, but once something is posted out into the vastness of cyberspace, it can never, ever be gotten back. Cyberspace is just millions of computers that store information and are connected and can communicate with each other via the "net." The information will remain out there in one form or another or on some server or another for all to see forever. Of course the perniciousness of this ever-living and ever-available information is directly related to the fame of the person whose privacy has been violated. I am a pretty boring person, so nothing about me would ever generate such a brouhaha, anything about me would probably sink into to the morass. So the ever-availability of the information is directly proportional to your fame or celebrity or infamy. The bigger (or smaller -- I'm not sure which) the world gets on the internet, the smaller (sure of this, though) I want to be in my little spot of it. Too much information is not a good thing. Quite frankly, as much as I am in awe of the internet, I am also frightened by the power it has over the simple dissemination of information, be it true, false or somewhere in between.

The internet has no conscience. It is governed only the moral compass of the person using it. Is there some way to reconcile the internet with the right to privacy? I would never advocate any kind of regulation for the internet. Perhaps the penalty for the unauthorized dissemination of private information to the internet should be directly tied to the amount of harm caused and the length of time the information will live on in cyberspace. I don't have any idea how to solve this dilemma, do you?

Be sure and go over to the Scruggs Nation today. I was just catching up on my reading. Seems those lawyers down there are getting pasted for fee deals the same way that some around here are getting pasted for fee deals.

Enjoy your day, sincerely, Always Annoyed (and now scared by the internet).

Questions from a fellow blogger/blogette?

I have been asked by a fellow blogger/blogette calling him or herself "make them file their briefs" to respond in my capacity as a "lie-yer" to the following questions: (See the comments to my inaugral post)

Do you think: because one is an attorney they have the right to tell a policitican to kiss their "finney fanny"? I think any person, lawyer or not, has the right to tell a politician to kiss their "finney fanny." I would, however, have to surmise that there is a more effective way of imparting y0ur displeasure with a politician that this. And perhaps a more direct way.

When was the last time you heard about an attorney filing a 'misconduct' charge on a Hamilton County Judge? I do not have any recollection of ever hearing of any attorney filing a 'misconduct' charge against a Hamilton County Judge. I am sure that judicial misconduct is not unheard of in Hamilton County. If briefs is so concerned about this issue, I would advise him or her to get out on the stump during the next election of the Judge that he or she has a grudge against, and tell the voters of Hamilton County what the problem is. But, mind you, it needs to something real, not something that a disgruntled "victim" of the system has to rant and rave about. Now let's discuss what is "judicial misconduct?"

In the federal system, 28 USC § 351 authorizes judicial misconduct complaints alleging conduct prejudicial to the effective and expeditious administration of the business of the courts or the inability to discharge all the duties of the office by reason of mental or physical disability. Conduct prejudicial to the effective and expeditious administration of the business of the courts is not a precise term. It includes such things as use of the judge’s office to obtain special treatment for friends and relatives, acceptance of bribes, improperly engaging in discussions with lawyers or parties to cases in the absence of representatives of opposing parties, (ex parte communications) and other abuses of judicial office. It does not include making wrong decisions – even very wrong decisions. The law provides that a complaint may be dismissed if it is directly related to the merits of a decision or procedural ruling. Mental or physical disability may include temporary conditions as well as permanent disability.

The Ohio Code of Judicial Conduct can be found at http://www.sconet.state.oh.us/ . The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through disciplinary agencies. It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding. I am thinking that the standard governing "judicial misconduct" in the state system in Ohio would be similar if not identical to that in the federal system. So briefs, if your grievance is related to a violation of the standards set out above, there is nothing to prevent you filing your own complaint against a Judge. The right to file such a complaint is certainly not confined to attorneys only. And, of course, I have no idea if you are an attorney or not, but, regardless, you have the ability to file your own complaint and not lay it off on the attorneys in Hamilton County who do not do so. If you have a legitmate complaint, then file it, for crying out loud, get off the soap box and stop whining and moaning because someone else has not done so on your behalf.

Complaints alleging judicial misconduct may be filed with the disciplinary counsel or with a certified grievance committee of the board of commissioners on grievances and discipline, both of which have the authority to investigate and file formal complaints with the board. If two thirds of the members of the board believe there is substantial credible evidence to support the complaint, the Supreme Court appoints a commission of five judges to determine whether retirement, removal, or suspension is warranted. The commission's decision may be appealed to the Supreme Court.

Here is an interesting article for briefs to read about what happens when these issues arise. Click here North Country Gazette

A 1st District Appeals Court Judge? Don't have any recollection, but see above.

How about a Judge against a Judge? Don't have any recollection, but see above.

How many minorities sit on the 1st District court of Appeals. There are two women on the 1st District Court of Appeals. There are no racial minorities sitting on the 1st District.

The State Supreme Court? There are three women on the Supreme Court. There are no racial minorities on the Supreme Court.

Why do attorneys feel that when have a pro se adversary they can meet with a Judge exparte (sic)? I cannot respond to this question in the general, but can speak for myself and those attorneys that I know and respect, that not one single one of us would ever meet with a Judge on an ex parte basis to discuss a case no matter who represented the other side. That is very serious misconduct and the attorneys I know would not jeopardize their careers to a gain such a nebulous, at best, advantage. Morever, an honorable Judge would toss a lawyer out on his or her ass for trying such a thing. That said, judges and attorneys must maintain a collegial relationship for the good of profession. It is wrong to assume just because a lawyer and a judge have a conversation that it necessarily involves prohibited communications.

How can an Ohio law prevent an attorney from disclosing the that the largest allowable judgement in the Common Pleas is $250,000.00? This one is clearly out of left field. I am not aware of any law that prohibits an award exceeding $250,00.00 in the Common Pleas court. These are the only damages limitations in Ohio that I am aware of:

There is a cap on non-economic damages for medical malpractice arising out of acts or omissions on or after April 11, 2003. The basic cap is the larger of $250,000 or three times economic damages, subject to a maximum of $350,000 per plaintiff and a maximum of $500,000 per occurrence. These maximum amounts increase to $500,000 per plaintiff and $1 million per occurrence if the plaintiff has suffered permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanent physical injury that prevents self-care. Ohio Rev. Code Ann. § 2323.43 (Westlaw 2006). The cap does not apply to cases brought under the wrongful death statute, Ohio Rev. Code Ann. § 2323.43(G)(3) (Westlaw 2006), but it does limit recovery by a decedent's estate for such non-economic damages as conscious pain and suffering experienced prior to death. Prior damage caps, similar in some respects to the current statute but different in others, have twice been held to be unconstitutional by the Ohio Supreme Court. State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999); Morris v. Savoy, 61 Ohio St. 3d 684, 576 N.E.2d 765 (1991). Ohio also limits punitive damages to twice compensatory damages in tort cases (other than intentional torts) arising on or after April 5, 2005. Punitive damages are also limited to ten percent of net worth, up to a maximum of $350,000, in the case of an individual or small employer. Ohio Rev. Code Ann. § 2315.21(D) (Westlaw 2006). (unabashedly and unashamedly lifted from a website maintained by an insurance defense firm).

If there is some law that I am unaware of that limits damages in the Common Pleas court, please let me and others know of it.

So, briefs, have I addressed your issues?

Always Annoyed.

What's Up With This?

While casting about for something interesting for the Friday Afternoon Frolics, I came across this at the at the Business Courier: ABX Air, Red Mountain sign 'standstill' agreement. My first thought was, "What could a "standstill agreement" possibly be?" So I googled the phrase and got this from Wikipedia. Now I get that anybody can post anything they want on Wikipedia, but this seems to be a pretty fair explanation, see 13D filing below. But my real question is this: If I owned stock in ABX Holdings, would I also be permitted to know this so-called non-public information? I would guess not. I went to find out more about ABX here and here. I do not profess to be a securities lawyer, but this information reinforces that old nugget from Bob Dylan, "Money don't talk, it swears." Just read between these lines:

Joe Hete, president and Chief Executive Officer of ABX Holdings, said that “Red Mountain shares our goal of enhancing value for shareholders of ABX Holdings, and has long expressed interest in advising us about operations, strategic direction, capital structure and corporate governance matters that may further our shared objective. This agreement provides a means for them to do so on a fully informed basis. We look forward to wide ranging and open discussions with the principals of Red Mountain.”

BTW, a Form 13D is a required filing by any entity that becomes a 5% holder. This filing must be made at the time (within 10 days) the holder crosses the 5% threshold. Conversely, a
Form 13G is the same form, but used when the person or entity is making the purchase for "investment" only.

Y'all have a good weekend.

Foreclosure in Ohio Two

Well, second day of blogging into the void. Is anyone out there? Links to look at today, hope you have some time to cogitate on this issue and post a comment. Read on.
On Tuesday, that's February 5, 2008, the Cincinnati Enquirer ran an article about the efforts of the Ohio AG to stem the tide in the foreclosure epidemic.
While you are reading the article, remember that two federal Judges in Cleveland recently dismissed a bunch of foreclosures for the very reason that the actual owners of the debt were not parties to the suit. Seems to me to be a standing issue, if you don't own the debt you have no standing to enforce it's collection. The Cleveland cases were reported in the Bellwhether Bellwether Article and Cleveland's Callahan's Diary back in November. Yesterday this issue was the subject of discussion over at the Wall Street Journal Law Blog.

Hamilton County Magistrate Bachman laced into the AG pretty hard. I have not seen the opinion and can't tell if the legal reasoning is correct. Can someone provide a copy to me at always.annoyed@hotmail.com. Anyway how about a discussion here in our city and state where we are actually experiencing the foreclosure epidemic. When you consider the long term consequences of the foreclosure mess, no one really benefits do they? My take on the this issue is a turn on an old adage. Just because you can foreclose doesn't mean that you should foreclose. Anyone care to comment?

King of Torts???

Gosh, I just could not let this one get by without comment.

Michael Kelley as the King of Torts?? As if......

Foreclosures in Ohio

Hey, I read over at the Bellwether that Hillary is calling for a 90 day freeze on foreclosures. I forgot to mention in my earlier post that Judge Ringland out in Clermont County has taken a proactive stance on the foreclosure epidemic and has called for pro bono work and possible mediation in trying to keep folks in their homes. I give props to the Judge and hope it works. Volunteer Lawyers Project and Legal Aid are pitching in to help also. Can you say predatory lending, predatory servicing and predatory foreclosure? Of course, not every foreclosure is the result of predatory tactics, some are just plain attributable to the dismal state of this economy at the hands of George, the young shrub. Boy, I sure do miss Molly Ivins.


As always, flame on!

Inaugural Post -- can you hear the Ride of the Valkyries?

Good Evening my future readers. I have been toying with the idea of blogging for a while now. I am a lawyer in Cincinnati and its environs. Today I was looking for a good old fashioned news and gossip blog about the legal doings in Cincinnati and around. Could not find one, so started one. Kind of tired of the repetiveness of the Whistleblower, but I do find it very entertaining and a poke at many of the powers that think they be. So, I am hoping to get something going here. Send me your stuff and I will do my best to post it for discussion and comment. Free legal advice, tho, watch out for libel and slander. BTW, I got my inspiration from two very entertaining blogs I read from folks in New York. See them at
copyranter and New York Shitty. Be sure to see the tale of the beer fairy. Both are very funny and provide a cautionary tale to me about living in New York. Oh and make sure to go toScruggs Nation for lots of information about what is happening down Mississippi way. I am not fond of the insurance industry -- a rant for another day -- but the blog is newsy. So back to my original point. Lawyers love gossip, whether they admit it or not -- about themselves, about those they admire and most especially about those lawyers they despise and/or envy. Like this: Arrogance, Hubris and Inevitable Crash Oh and sometimes I do love a good and imaginative flame war.

So, on with the antics:

Lets start the dicussion about the wisdom of bringing a big class action lawsuit in a city where all the Judges are members of your class.