The intrepid lawyer

Sometimes you just have to pull up your skirt and fight . . . Kelli's latest blog post.

THE GAG ORDER THAT PREVENTED ME FROM TALKING ABOUT FORECLOSURE FOR 16 MONTHS

IF I COULD WRITE EVERYTHING . . .

I am a lawyer.

This is a fact I have resisted, decried, announced proudly, tried (in a futile effort) to use for social advantage, and lived with for over a decade.

One of the most difficult parts of being a lawyer is client communication—anxious clients demand attention via phone and email while pressing deadlines require quiet time. This was my biggest challenge, and I set big boundaries around client communication—I understood the desire for information, but, as a solo practitioner, I had to limit my representation to clients who could put emotional needs for contact aside so I could meet deadlines.

In 2013, I met a young woman who hired a lawyer to defend her home from foreclosure. She came to me after an acquaintance checked her case status online to discover that the home was gone—eviction was imminent.

Indeed, the home was gone. The client had paid a lot of money—money that could have been used working out a deal with the foreclosing lender or finding new housing—for nothing. No competent steps had been taken to save the home.

It was hard to believe a lawyer would take advantage of those in dire need—those in foreclosure. And, as I discuss elsewhere (Blog Post on Saving Homes--before the gag went on!), there is a lot that can be done to save homes. At very least, one could honestly tell a client there was nothing to be done—taking money, making false promises, and doing nothing is unjustifiable.

Investigation showed the lawyer targeted African-American communities for his sub-standard services. Because of this, one of the counts in our multi-count complaint was for violation of the Fair Housing Act.

Rather than fighting the lawsuit, the lawyer sued ME for defamation. Because the lawsuit clearly violated the FHA’s prohibition on retaliation, interference, and intimidation (42 U.S.C. § 3617), I removed it to Federal court. While the case was removed, the other side filed a motion for an order from the STATE court. The state court acknowledged the case was removed (meaning, under well-known removal rules, the state court could do nothing and had no jurisdiction whatsoever), but granted the injunction anyway. I was forbidden to talk to my own client, co-counsel, or the community for 16 months. The prohibition was vague, and I was not really sure what I could or could not do. Could I call my mother on Mother’s Day? Probably—as long as I didn’t talk to her about foreclosure.

The injunction stayed in place for 16 months.

For 16 months, I could not talk to my client. I could not talk to my co-counsel. I could not give housing presentations to community groups. I could not blog. The clinic I founded months before floundered with a director who could not talk to volunteers, clients, or allies. I could not work on my client’s FHA case.

Did the injunction violate my rights? Of course. However, I have rights and no remedy—judges are clearly immune, and the judge in this case has retired and is voluntarily inactive as a lawyer.

There is no redress for the pain of a lawyer unfairly and arbitrarily barred from serving her client. I remained quiet for a long time. Initially, I had a court order mandating my silence. Later, I had pending legal matters—my own and my client’s—to consider. Finally, I have had the long road of recovering from the pain of having the unthinkable done to me and having virtually no legal address. This has meant depression to the point I could barely get out of bed, physical pain and deterioration, and disbelief—a sense that the law books had simply been thrown out.

I decided, as 2017 approaches, to come forward. I cannot prevent violations of the FHA. I cannot tell any lawyer or client that their right to communicate with each other will be respected. I cannot believe many things I believed before 2013.

However, I know that I can help clients vindicate their fair housing rights with a renewed appreciation for the ability to talk to a client and explain a case status or strategy. I can stand by my fellow lawyers when advocacy is needed.

I cannot be silenced.

. . . I WOULD SHOCK THE WORLD. --Caterina Sforza

Last, Let's Scare All the Lawyers . . . .

This is an article I wrote some time back for the DePaul University Journal of Social Justice. A lot of work remains to be done. In the end, I was not awarded more than very minor recompense for the poor behavior of opposing counsel who got an order preventing me from talking to my own client, co-counsel, or the community. The order was obtained while the case was on removal (so the state court entering the order should not have heard the case at all).

The larger question is: will the courts ever recognize that retaliating against a fair housing advocate/lawyer for advocating for a fair housing client must be punished or the Fair Housing Act has no teeth? I cannot both criticize fair housing lawyers for being too passive without also acknowledging that there is a more than reasonable fear that our best efforts will cost us our livelihoods, as my own livelihood was taken away by an order that stood for nearly 16 months.

Read my article here:

Last, Let's Scare All the Lawyers . . . .

Much Ado About Disparate Impact . . . . Or, Much About Doing Nothing

Forbes recently published an article that asks, “Could the Fair Housing Act be used to abolish restrictive zoning?” (http://www.forbes.com/sites/scottbeyer/2016/12/02/could-the-fair-housing-act-be-used-to-abolish-restrictive-zoning/#490f1dacdd71)

Why, yes. Yes it can.

Since at least 1977.

The real question is, “Could the Fair Housing Act be more neglected?”

Why, no. One hopes not.

Here’s why.

The Fair Housing Act has allowed disparate impact claims since time immemorial. By “time immemorial,” I mean, since I was about 8 years old. Some of you know this was a very long time ago. In 1977, the Federal Court of Appeals for the Seventh Circuit said:

“A strict focus on intent permits racial discrimination to go unpunished in the absence of evidence of overt bigotry. As overtly bigoted behavior has become more unfashionable, evidence of intent has become harder to find. But this does not mean that racial discrimination has disappeared. We cannot agree that Congress in enacting the Fair Housing Act intended to permit municipalities to systematically deprive minorities of housing opportunities simply because those municipalities act discreetly. . . .

“We therefore hold that at least under some circumstances a violation of section 3604(a) can be established by a showing of discriminatory effect without a showing of discriminatory intent.” Metro. Hous. Develop. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977). A copy of the case is available here: http://openjurist.org/558/f2d/1283/metropolitan-housing-development-corp-v-village-of-arlington-heights

Note that the court says “showing of discriminatory effect.” In other words, they are discussing evidence, not a cause of action. This is important because evidence shifts from case to case; a cause of action can be eliminated. In other words, an idea like presumption of fault might be eliminated—but a plaintiff’s ability to show that a defendant plowed into the rear of a car at a red stop light would not be. No matter what labels were invoked, the plaintiff would very likely recover.

Move forward nearly forty years, and you’ll see rooms full of fair-housing lawyers hand-wringing over whether disparate impact exists. So, in 2013, you’ll see SCOTUSBlog characterizing a case as asking, “Whether disparate impact claims are cognizable under the Fair Housing Act.” 

(http://www.scotusblog.com/case-files/cases/mount-holly-v-mt-holly-gardens-citizens-in-action-inc/)

In fact, blogs and newspaper articles went so far as to contemplate the death of fair housing. MSNBC said that the settlement of the Mount Holly case, keeping disparate impact off the Supreme Court’s docket, “spared” the very Fair Housing Act itself. (http://www.msnbc.com/msnbc/mount-holly-settlement-spares-fair-housing-act-for-now) Wait! In 1977, the court said . . . “We therefore hold . . . “.  Metro. Hous. Develop. Corp., 588 F.2d. at 1290.

The hand-wringing continued, largely at conferences with well-stocked snack tables, past 2013. Over donuts, concerns were aired over a case looming large (in imaginations): Texas Dep't of Hous, & Cmity Affairs v. Inclusive Communities Project, Inc., 576 U.S. ___ (2015). The Court recalled its own long history of affirming disparate-impact type theories, recalling its own 1988 (the year I graduated from high school) invalidation of a zoning scheme that had a . . . disparate impact:

“Suits targeting unlawful zoning laws and other housing restrictions that unfairly exclude minorities from certain neighborhoods without sufficient justification are at the heartland of disparate-impact liability. See, e.g., Huntington v. Huntington Branch, NAACP, 488 U. S. 15, 16–18.” Huntingon is found at: 488 U.S. 15 (1988). Or, here: https://scholar.google.com/scholar_case?case=16996221344809098022&hl=en&as_sdt=6&as_vis=1&oi=scholarr A link to Inclusive Communities is here: https://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf

Of course, the Fair Housing Act itself was never threatened—if anything was threatened, it was one strain of evidence that could be introduced to show discrimination occurred. Saying the Fair Housing Act was threatened is like saying the entire field of tort law is eliminated because one state applies a contributory negligence theory as a bar to recovery. In other words, fair housing standbys, like the classic case of black people having doors slammed in their faces by landlords hurling racial epithets, would have been just as viable as ever. As the Seventh Circuit pointed out in 1977, “overtly bigoted” actions are (were?) on the decline, so disparate impact is helpful in finding relief where discrimination is more subtle. This was a matter of evidence—people were no longer making bigotry clear with racial slurs, “no blacks” advertisements, or similar overt acts. But disparate impact has always been the delicious frosting piled high on the fair housing cupcake. It was never the cupcake itself.

But, even giving credence to the idea that the law on disparate impact was ever anything less than clear, the hysteria surrounding the cases was nothing more than a distraction from the very real work in front of those who really want to bring about fair housing. During the swirl of hysteria, I successfully litigated a case that hinged, in part, on disparate impact. We survived a motion to dismiss, and, with a lot of hard work on the part of the court system and all the parties, eventually settled.

Throughout the litigation, I was continually cautioned by well-meaning, experienced fair housing practitioners that I was tilting at windmills because no one was really sure about this disparate impact thing. Now, I practice in Illinois—within the very Seventh Circuit that gave us Metropolitan Open Communities v. Arlington Heights when I was eight years old! At very least, unless and until the Supreme Court overturned the long line of cases approving disparate impact, I was not putting forth a frivolous theory.

Every lawyer expects opposing counsel. What no one told me about was the long line of people receiving money from HUD to promote fair housing who would oppose me. From concerned tongue-clucking from older lawyers to absconding with my clients’ paperwork by a fair housing group (and I phone tirade by its lawyer when I issued a subpoena to get it back), I had my time wasted and my energy depleted (on a case where I charged nothing to get a significant result for more than 50 people, requiring me to effectively give up my income-stream for two years) by those who should be allies. By those who get funding to be allies.

When the motion to dismiss was decided, by a relatively conservative judge, disparate impact was front and center. Rather than the sanctions and ruination of my career that had been prophesied, my disparate impact claim was dismissed—not because it didn’t exist, but because, it is a “method of proof, not a separate cause of action.” Teran v. Wheeling, 13-cv-06509, p. 13 (NDIL 2013) available at, http://law.justia.com/cases/federal/district-courts/illinois/ilndce/1:2013cv06509/287581/48/ My complaint already stated a cause of action for violation of the Fair Housing Act; it did not hinge on disparate impact—a method of proof, not a separate claim.

Likewise, Mr. Forbes Writer, your case about unfair zoning has already been litigated. And won. Fair housing lawyers need only put down their donuts, smell the coffee, and use an evidentiary tool that has been available since I was 8 years old.

Me? I’m enjoying that creamy frosting. I earned it by staying the course in the face of threats, ridicule, and interference with my representation of those most in need.

I thank the joyful juice
For all I know;
Winds of remembering
Of the ancient being blow,
And seeming-solid walls ot use
Open and flow.

Pour, Bacchus, the remembering wine;
Retrieve the loss of me and mine;

Let me know it is you;

Send the next message on paper blue.

How to Not Lose Your Home

While it is true that most of the mortgage crisis falls squarely on the shoulders of banks, and I blog about that often, many homeowners have utterly failed to take simple steps to help themselves.

My husband I have dug ourselves out of many debts. One early example I remember was, when we were very young, being ripped off by a rental car company. Even though the car broke down and the rental car company refused any help, they charged us for all the days the car was inoperable. This was grossly unfair. We had no way to return the car to the rental car agency if it was broken down. At the same time, the rental car agency charged all the days to our credit card, and we did not want to incur interest or late fees. To make things worse, we had to spend two unplanned nights in a hotel on the road and pay a towing fee. The hotel and tow truck wiped out the extra money we had saved for travel.

My husband and I immediately stopped buying groceries. Even though we were in college and only spent about $20 per week on groceries, we pulled in even tighter. We took an inventory of what we had on hand and used those food items instead of buying more. Some of the meals we prepared were not very appealing, but we saved much of our grocery money toward the debt. When we did buy food, we ate even simpler than usual. We purchased little more than dried beans and rice that month. We rode our bikes everywhere, no matter how inconvenient, to save on gas and bus fare. Needless to say, meals out at restaurants, movies, and shopping did not happen.

As it turned out, over the course of a month and many, many hours "on hold" with everyone from the rental car company to the credit card company to the Attorney General, the problem was resolved in our favor. At the end of the month, we had accumulated almost $200.00.

Was our effort wasted due to not needing the $200.00? No. Anything we gave up buying could still be bought, and the $200.00 was a small nest egg. Had the problem not been resolved, we could have paid over half of the unexpected debt instead of accumulating interest and late fees. This will surprise many people, but if you bypass a product in the store, it doesn't die of embarrassment. It is still there for sale when you return with cash. By living simply another month, we could have retired all the debt from the fiasco, had this been needed.

There are a few lessons here that apply to any situation:

1. Stop spending. Just stop. No one guides you by remote control to the mall. While there are necessities of life that must be addressed, much of what we buy is not necessary. To this day, with a far different budget than when I was in college, it is rare that I do not return something to the shelves before leaving the store. As I think about how an item will be used, I realize it is not worth the price--even if the price is "only" a dollar.

I once counseled a couple in foreclosure and went to their home to have papers signed. Even though they had not paid their attorney bill in months and I barely had gas money to get to their lavish suburban home, the couple had everything in their home brand-new. There wasn't a dish towel with a small hole or bathroom towel showing wear in the home. The accessories and furniture were all of a design that was from that very season, meaning it was bought while my bill languished. The cable television was blaring on a large-screen television (my bankruptcy friend has NEVER filed a bankruptcy petition that did not include a cable bill). The family's dinner that night was pizza that was delivered while I was in the home--no on-sale Tombstone for this crowd!

2. Cancel subscriptions. I cannot repeat the anecdote about my friend who represents people in bankruptcy often enough. While it is true the deck is stacked against consumers in our society, there are some things we can do. When the going gets tough, the tough cancel their cable, their magazine subscriptions, reduce their monthly data plan to meet business needs and no more, and find all the extra spending they can possibly stop--and stop it.

I have had many people say to me that they have to stay entertained. However, there are more free entertainment resources than one can ever use. Just taking a walk costs nothing, and my husband and I are big fans of public parks. We often spend an entire weekend day in a park with a picnic lunch. We come home too tired to worry about the fact we don't have cable.

During our financial problem in college, my husband and I found more time to read than ever before. I found old craft supplies in my closet, brushed them off, and completed several projects that were laid back for holiday gifts. We cleaned up our house, went for walks, and generally enjoyed ourselves. It gives away our age to reveal television was free back then, but we did have television. The really happy memory from that time, though, is remembering that I confided in our friend Julia about our predicament. Julia suddenly became unable to cook the right amount for one, and needed help with leftovers at least once a week. I don't think I would have ever appreciated her for the dear friend she was if we had not gone through this struggle.

3. When someone tries to help you, provide them what they need. I spend many hours helping people in foreclosure at low or no cost. One of the amazing things is that people will not do what is needed to solve their problem. As if it isn't enough to take my time to explain legal issues at no cost, I am required to send many, many reminders to get the homeowner to provide simple paperwork in their possession.

I recently had someone forget to send me paperwork for over two weeks of a one-month court deadline. She then mailed it to an address with no relation to me she found on the Internet because I didn't provide her my address. When I pointed out I had provided my address and that it was in the very email chain where she said I didn't email my address, she said she didn't say I didn't email it. Once a person has decided to sabotage themselves financially, there is no statement too ludicrous for that person to believe if it hurts their chances of financial recovery.

I have provided sample pleadings for people to file in court, and had them "not have time" to go to the courthouse. Worse, they accept free help, file paperwork, and get a court date assigned, then  miss the court date.

My time is valuable. I show other people I value their time by following through with commitments. During the time I was trying to resolve our rental-car problem, I spent as much time as was needed "on hold" with everyone involved. When the attorney general needed a copy of my contract, I sent it. I rode my bike to a Kinko's, paid my dollar, and faxed the sheet. I did it the day the contract was requested. This is how one behaves when one wants, and deserves, help at no cost.

I cannot account for people who fail to send needed items to me when they are paying for my time. There must be some masochistic pleasure in increasing one's monthly bill by simply withholding information needed.

Whatever the excuse, it cannot be true at the same time that one is in foreclosure due to unemployment and that one does not have time to go to court or provide a pro bono attorney with needed paperwork.

4. Sell your stuff. A few years ago, I took a break from practicing law. Every month for a long time, I paid my mortgage strictly out of revenue from selling books on-line. After finding out how easy it was to sell books, I began cleaning closets and selling all of my unused items. I had several small rummage sales on my lawn--I met my neighbors, cleared out my closets, and made money.

I don't think selling a few books will save most homes from foreclosure (though I did pay my mortgage with mine). But it amazes me when I meet someone who is unemployed and find they aren't supplementing their income with some simple ways to earn money.

During the year or so I was off, I developed a real passion for selling off what wasn't needed. I started baking dog treats to sell, and I enjoyed bonding with my dog. I still had some income from a few clients I kept, but I at least doubled that amount with low-stress, fun Internet selling and rummage sales.

5.  Learn to cook. My husband and I truly enjoy meals out. We like trying new cuisines. We are not big fans of cooking and cleaning up afterward. However, through all the financially-tough times in our lives, eating meals at restaurants has been one of the first luxuries to go. Cooking at home is one of the quickest ways to save several hundred dollars per month. Let me repeat that: depending on the number of mouths you feed and the cost of the restaurants, cutting out restaurant meals saves several hundred dollars per month. This includes giving up the odd practice of bringing home restaurant food (Hey! look! I paid for this, but I still get to clean up the mess!) as well as meals eaten in the restaurant.

6. Save. Many people in foreclosure right now tell me, "The bank will not accept my payments, but I can afford to pay."

This statement is not too believable if there is not some money in the bank. If you do have your monthly payment and the bank refuses it, place the money in an interest-bearing bank account. Spend the money only on items related to the house (taxes, homeowners' insurance, condo assessments, fees for a good attorney, and court costs). While it is tempting to pay off unsecured loans or spend freely on shopping, this is not the path to saving your home.

If you cannot afford to save your monthly house payment and earn interest on it, you cannot afford the payment. Even if you hit upon hard times, commit to saving some portion of the payment. It is very simple that it is easier to solve a problem when you have some money to offer the other side. Even if the foreclosure is not resolved, the money saved is a starter fund for a new place to live and moving expenses.

It is true that I was ripped off by the rental car company. The amount of debt was small compared to the debt homeowners assume, but it was huge given the very limited means my husband and I had at the time. We made it through because we were persistent in asking for help, provided our helpers the tools they needed, and took steps to save money to pay if we were unable to resolve the problem.

Resistance Legal Clinic

http://resistancelegalclinic.chipin.com/refreshments-and-supplies-for-9242012-student-training
In May of 2012, I began Resistance Legal Clinic in Chicago. We are a small group, with no funding. The time I have devoted to the group is reflected in the fact there have been no posts in this space for several months.

In contrast to the efforts that take $3.5 million or so in government funds and accomplish little, our small group has served many people without using any financial resources.

With 10 student volunteers and 5 attorney-mentors, we served over 50 homeowners over the summer. We staffed 3 Save-Your-Home events.

I am gratified to have a new crop of student volunteers with fall semester beginning. In addition, there are a few returning students. We will have a training for them on September 24, 2012, in space donated by DePaul University School of Law.

I am taking advantage of this space to advertise the opportunity to chip in for supplies and refreshments for our student volunteers. I get a lot of rewarding personal email messages about the blog, some of which ask me to let the writer know what they can do in return. Those who are so inclined can donate at:
 \http://resistancelegalclinic.chipin.com/refreshments-and-supplies-for-9242012-student-trainin