William A. Miller, Esq.

Mortgages bundled into securities were a favorite trick of Wall Street at the height of the big bubble. The securities changed hands frequently, the French bought billions, and the investment banks profiting from mortgage payments were often not the same parties that made the loans. At the heart of this disconnect was the Mortgage Electronic Registration System, or MERS, a company that serves as the mortgagee of record for lenders, allowing mortgage pools to transfer without the necessity of recording. The point was investment banker fees without responsibility or accountability to the home owner!

MERS was made for the banks, but courts are now slamming down the impact of all of this financial juggling when it comes to mortgage ownership. To foreclose on real property, the plaintiff must be able to establish the chain of title entitling it to relief. As MERS has acknowledged that MERS is a “nominee”—an entity appointed by the true owner simply for the purpose of holding property in order to facilitate transactions. Recent court opinions stress that this defect is not just a procedural but is a substantive failure, one that is fatal to the plaintiff’s legal ability to foreclose.

The latest decisions came down in California on May 20, 2010, in a bankruptcy case called In re Walker, Case no. 10-21656-E–11. The court held that MERSbecause it was a mere nominee; and that as a result, plaintiff Citibank could not collect on its claim. The judge opined:

Since no evidence of MERS’ ownership of the underlying note has been offered, and
other courts have concluded that MERS does not own the underlying notes, this
court is convinced that MERS had no interest it could transfer to Citibank.
Since MERS did not own the underlying note, it could not transfer the
beneficial interest of the Deed of Trust to another. Any attempt to transfer
the beneficial interest of a trust deed without ownership of the underlying
note is void under California law.

While not binding on courts in other jurisdictions, the ruling could serve as persuasive precedent there as well, because the court cited non-bankruptcy cases related to the lack of authority of MERS, and because the opinion is consistent with prior rulings in Idaho and Nevada Bankruptcy courts on the same issue. Call Bill Miller at 480-948-3095 a long standing Arizona Trial and Real Estate Lawyer located in Scottsdale.

For a long time conservative like me, this is a tough issue to blog on. I lean left on the Gulf oil spill mess. So, call me a flaming liberal; no pun intended.

For over a month or two, Obama watched the oil spill spread over the Gulf of Mexico with the same powerless shock as other Americans. Regarding this, the right wing pundits got a big time pay back for Bush slander on Katrina. Yep, Bush should have stopped the hurricane & Obama could plug the leak.

Lampooned by his contingency & ‘my people’ for his impotence, Obama was spurred into action. He attacked the only available party—BP—and, to underline the stress with which he takes this problem, he gave his first Oval Office address on the subject. Lawsuits! That is what the professional/motivational speaker/professor said. Where is “mission-accomplished-bush” when you need him!

Obama’s address got poor reviews; his attack on BP better ones. Last week the firm bowed to pressure, and announced that it was, in effect, handing over $20 billion to the government to pay for compensation and clean-up, as well as cancelling the payment of any dividends this year and setting up a fund—of a mere $100m—to compensate unemployed oil workers.

This may do Obama some good. Whether it will benefit our friends in the Gulf is more doubtful. Businessmen are already blue, shot-down by the economy and nervous of their president’s attitude towards free markets.

I lean very left on this one. Where are those ‘onerous-left-wing-regulations” when you need them? Anyone who says the ‘free market’ can solve this mess needs history lessons.

Go get ‘em Obama! Sue everyone later, but fix the problem first.

May God richly bless our friends in the Gulf as this drags on.

Make sure to call Bill Miller @ 480-948-3095, a 22 year Arizona litigation and trial lawyer with any questions about Arizona law or Maricopa County courts.

My dad always said be careful of what you ask for because you might just get it.

“Drill, baby,drill” was a siren song during the last election and some were all too quick to want more off-shore drilling. Well, look what happened … The big spill has been unfolding for more than two weeks, pouring at least 5,000 barrels of oil a day into the Gulf of Mexico, and probably a lot more than that. It began on April 20th with a fire and an explosion on an exploratory rig 40 miles from the Louisiana coast. Eleven workers were lost (RIP), and several days later it became apparent that the well underneath had begun to leak. By April 26th the slick was 80 miles across, with the western part 36 miles from reaching the coast.

An array of Federal agencies are on the scene, skimming up oily water, installing thousands of feet of boom in an attempt to contain the oil, and burning off some of the slick. BP, which was leasing the rig, will spend at least $500 million on the clean-up. Much depends on the wind, which could push the oil out towards the open sea—or in the other direction. If the oil does reach Louisiana, the costs will be grave. The lawsuits will fly. The coastal marshes are home to abundant and various animal life, as well as to fishing and tourism industries.

The lawyers will be the only winners. Sad, Sad, Sad. Be careful of what you ask for … We may not be able to stop such environmental nightmares, but if you need legal representation for business or real estate disputes in the Phoenix, Arizona, area, call Bill Miller at 480.948.3095.

It’s not the traditional law professor career path, but disgraced securities plaintiffs attorney and all around scum bag Bill Lerach might make the transition from prison cell to ivory tower, according to ALM.

The University of California, Irvine School of Law is considering having Lerach teach an upper-level course in 2011, Assistant Dean for Communications and Public Affairs Rex Bossert confirmed Monday.

Lerach told the San Diego Union-Tribune last weekend that he is developing a course called “Regulation of Free Market Capitalism–Why Have We Failed?” He told the newspaper that he expects to “lecture at other law schools” and participate “in the ongoing debate about the need for better and more effective financial regulation and protection of investors.”

Lerach was released from a two-year sentence on March 8, the final two-and-a-half months of which were spent in home confinement following stints in an Arizona federal prison and a halfway house in San Diego. He still must complete 1,000 hours of community service and is scheduled to remain under supervised release for two years.

He pleaded guilty in 2007 to one count of conspiracy. The government alleged that members of his former firm, Milberg Weiss Bershad Hynes & Lerach, now called Milberg, paid kickbacks to lead plaintiffs in securities class actions.

Lovely! Only could lawyers dream up such. If you have a legitimate loss and need legal representation, call Bill Miller at 602.319.6899.

As it has been said in ALM (American Lawyer Media), “In a global economy, price and convenience are valued above all else.” Global consumers demand produce out of season, buy sophisticated appliances made with cheap labor and build homes with materials shipped from abroad. And yet when these products prove to be defective, they expect to be able to sue the manufacturer at the local courthouse, regardless of where it resides. After all, the product reached them — so they should be able to sue in their home court, right?

We’ve come a long way from Penoyer v. Neff, 95 U.S. 714 (1878), when a defendant’s physical presence in the forum state was required to exercise jurisdiction over him. Various U.S. Supreme Court decisions have expanded the notion of personal jurisdiction, simultaneously muddying the water as to precisely what constitutional analysis is required.

Take, for example, Asahi Metal Indus. Co. v. Superior Court of Calif., 480 U.S. 102 (1986). There, the separate plurality opinions of justices Sandra Day O’Connor and William Brennan both approved of some form of the “stream of commerce” theory of jurisdiction but disagreed on the exact formulation of the test to be applied. Although lower courts subsequently used some form of “stream of commerce” analysis after Asahi, they seldom used it as a stand-alone test. Most have always added to it some form of “minimum contacts,” “purposeful availment” or other analysis to establish that the defendant somehow intended or expected to benefit from the jurisdiction. This traditionally has been seen as required by the due process clause.

In February, the New Jersey Supreme Court substantially expanded the scope of personal jurisdiction over foreign manufacturers in products liability cases by abandoning any form of “purposeful availment” or “minimum contacts” analysis, opting instead to rest exclusively on the “stream of commerce” theory. Nicastro v. McIntyre, 2010 N.J. Lexis 19 (N.J. Feb. 2, 2010). Nicastro was a classic products liability case. The defendant was a British manufacturer of metal presses used to recycle metal. The plaintiff was the operator of the machine, which severed four of his fingers. He sued the manufacturer for failure to warn and design defect, arguing that the machine lacked a specific safety guard that would have prevented the accident.

If you need help looking over your case, call Bill Miller in Scottsdale at 602.319.6899. He has been suing Fortune 500 companies for 22 years!

I just got back from my beach house in San Diego with a sad story regarding the direction of our Country.

OK, it was very late, I had my old golden retriever Rose, a backpack beach chair, a nasty beard, a surf t-shirt, G-Star jeans from France (looked gnarly by design) and a rusty beach bike. I went to the liquor store to buy water for my prayer time on the beach that night. I needed to put the water in a paper bag so I could ride to the beach on the bike with Rose’s leash in my other hand.

Looking back, the bag of water must have looked like a 40 ounce beer. I looked like death warmed over because I had not shaved in a few days, had worked 10 hours at home and driven six hours without a stop to get to San Diego.

I almost got beat up big time by three college kids who shouted evil things and nicknamed me “HOMELESS.” They smacked me a time or two and had the nerve to mock sweet Rose. All because of who they thought I looked like.

I learned to fight as a young man (my son Billy is on his way to the Golden Gloves) and I think they were surprised I fought back so darn hard. Punks! My first thought was, I’ll bet I could have bought and sold your parents in two seconds, but that’s not the point, the point is Grace. Who taught these little brats to mock the poor, weak or homeless?

Today, I just learned that two preteens assaulted a woman walking home through a playground as part of a violent game called “Catch and Wreck,” in which children identify targets they think are homeless and then beat and rob them for fun.

An 11-year-old boy was arrested Monday night and charged with aggravated assault, conspiracy and robbery, Philadelphia police Lt. John Walker said.

A 12-year-old girl was charged shortly after the Friday night attack in southwest Philadelphia. The victim was surrounded by children, then punched and hit with sticks, police said. She suffered minor injuries to her knee and head and delayed seeking medical attention to help police with the investigation.

What is going on out there? I can only ask that parents, clergy and educators help stop this negative attitude towards the poor and homeless. I’ll be giving my jeans to Goodwill, hopefully whoever gets them is not on the receiving end of some idiot who doesn’t know grace or at least “get it.” Anyone could be there. Trust me, I felt it!

Not to worry, we’ll always be ready for State or Federal Court with the latest from Holland & Sherry, Prada or Gucci and a clean shave. Give Bill Miller, a 22 year Scottsdale litigation attorney, a call at 480.948.3095 to discuss any legal issues that are troubling you.

A Rose is a Rose by any other name. So is a crook and a federal appeals court has upheld the conviction of Franklin Brown, the former general counsel of Rite Aid, on fraud and obstruction charges in connection with the $1.6 billion accounting scandal that sent half a dozen executives to prison and cut the company’s stock price in half. You call him a lawyer, but he really is just a crook.

As American Lawyer Media states, the unanimous three-judge panel rejected Brown’s claims that both the prosecutors and judge had engaged in misconduct, and that secretly recorded tapes of his conversation with another executive had been tampered with.

But the appellate judges agreed that Brown, 82, who is now about halfway through serving his 10-year prison term, is entitled to a new sentencing hearing.

I say send them all away. If you have been wronged by a lawyer, a crook or a real estate con give Bill Miller a call at 602.319.6899 and we will see if we can help you. Our offices are off of the 101 in North Scottsdale.

“Tarantulas” was the term philosopher Friedrich Nietzsche used for those who are consumed by resentment. Unable themselves to be great at anything, they burn with a feverish fervor, expressed as righteous anger, to tear down the reputations of those who are great. Nietzsche regarded it as one of our deepest, darkest motivations. I think of my fellow counsel in two major cases I am working as Tarantulas. Each opposing firm has 100’s of lawyers on staff and offices all over the country, but we keep winning every possible motion. All rulings sway our way. In both matters we have the facts. In both matters we have the law. These lawyers can only be explained by Nietzsche. Often a large firm is like an HMO. Some good docs, some not too good and the bad ones hide behind their doors. Believe me, bigger is NOT better when it comes to law firms.

If you want a fair evaluation of a stock scam, real estate deal gone bust or commercial litigation matter, call Bill Miller at 602.319.6899. My Scottsdale, Arizona, law firm has been handing it to the white shirt law firms for 22 years. Tarantulas and all.

I just finished lunch with one of the smartest and richest guys in Paradise Valley, Arizona. He knows I am writing this post as he teased me about being silent the last few weeks. I told him I was WORKING on legal briefs and I did not have time to blog about the Arizona legal world and litigation.

Blogging is a luxury like being so well off you can — go green or eat only vegan. Working stiffs have no such luck.

Anyway, this guy told me he was so depressed at the markets–all of them–that he is like ship without a sail. I knew what he meant.

Too much time checking Drudge or WSJ. It is time to WORK. SAVE. PRAY. FIGHT. It’s not time to drift. For me this means going back to my legal roots. Doing my own legal research. Showing up 110% ready to fight. No more blogs for a while. Well, no more until this guy pays me. Hey, its almost six figures.

You real estate guys would do better getting in your car and driving to properties and meeting clients as opposed to sitting in front of the PC like a ship without …

What should a litigant do when confronted with disclosure of confidential metadata? Conversely, what should you do if you learn that confidential metadata has been disclosed? Some recent case law may offer insight:

In People v. Gomez, 134 Cal. App. 3d 874, 879 (1982), the court, dealing with privileged material in general, held that failure to take reasonable precautions to maintain the confidentiality of information may be deemed consent to its disclosure.

Amersham Biosciences Corp. v. Perkinelmer, Inc., 2007 WL 329290 (D.N.J. 2007), may be particularly instructive in determining the meaning of “reasonable precautions” when dealing with confidential metadata, as it is the only case dealing with this particular topic. The New Jersey district court was asked to decide whether reasonable precautions were taken in the inadvertent disclosure of some 500-plus privileged Lotus Notes e-mail documents that were deleted within subfolders when converted to CD, but remained embedded in the larger folder when converted to single image files.

The court held that if the confidential nature of the documents was apparent on the face of the documents after their conversion from their native format to single image files, then the final spot check conducted by the disclosing party may not have been reasonable. Consequently, it would appear that “reasonable precautions” means that counsel should probably review each electronically-stored document at every stage of the conversion process. More on this issue can be found at www.law.com.

At the law firm of William A. Miller, we have experience in handling these electronic discovery issues. Give us a call at 480.948.3095 to learn more.