The Archives also trace Maine’s development from a single-party, Republican state prior to 1954, to a viable “two-party democracy” thereafter. Approximately 300 people have been interviewed, with colorful stories not only about Muskie, but about the cities, towns and people that Muskie served. (See Note 1 below for a partial list.)

The archives are a “way back machine” into the past, showing how Maine’s legal and political community developed. The best way to explore the archives’ magic is through the oral histories.

This article focuses on an interview given by my beloved uncle, Jere (pronounced “Jerry”) Clifford, a veteran Maine lawyer who recently passed away at the age of 84. He gave his interview on May 12, 1999. The interview is funny, enlightening and sheds a great deal of light on my hometown, Lewiston. It contains great stories about the wacky and not so wacky legal and political characters Uncle Jere and Muskie had to deal with at mid century.

As most will agree, Jere was a very humble, funny and extremely kind guy. (Full disclosure: he, along with my dad, although nominal Democrats, were actually right wing “nut jobs” who voted for Goldwater, Nixon and Reagan.) Jere started practicing law in 1950 at the ripe old age of 23, after graduating from Tufts and BU Law School. In the 1950s, Jere served as a rising star alderman in Lewiston. Afterwards, for the remainder of his career, he represented the City, as Lewiston Corporation Counsel.

As an ambitious, young, Democratic politician in the 1950s, Jere was “present at the creation” of Maine’s Democratic Party, during Muskie’s 1954 and 1956 gubernatorial campaigns. Muskie very much needed the Democratic dominated mill towns such as Lewiston, Waterville and Biddeford. Muskie relied on foot soldiers like Jere.

One of Jere’s themes was that Muskie built on the foundations of the legendary Louis Brann, a Lewiston Democrat who won the Blaine House during the Great Depression, breaking up nearly a century of Republican rule. Try as they might, infamous (and notorious) Lewiston politicians such as “Mr. Democrat,” (Louis Jalbert) and Ernest Malenfant, were unable to follow in that proud tradition. Nevertheless, they are the true stars of this history. (Let’s just say Lewiston has produced some real doozies.)

Jere also reviewed Lewiston’s Catholic heritage, the tumultuous and violent strikes at the textile and shoe mills in the 30s, and what it was like to be a young kid during the Depression. He also talked about what it was like to enlist in the Navy at the latter part of World War II. (See Author’s Note 2 for more.)

The world Jere described was sunnier than the world that exists now. Back then, Lewiston was busy and bustling – no malls and no television. People worked very hard. Houses were meticulously maintained. Jere, as a boy and in high school, listened to “the Shadow” and the Jack Benny, Fred Allen, and Jack Armstrong radio shows. There was full employment in the mills.
Jere alluded to the great “melting pot” in Lewiston, with Yankee Protestants arriving first, the Irish later, and then tens of thousands of French Canadians. Jere understood Lewiston’s heyday to be around the time of the Civil War. The great mills survived for a hundred years, before eventually dying out.

A good part of Jere’s professional life was heroically spent trying to fight this economic ebb tide. He became instrumental in the creation of the Lewiston Development Corporation, which attempted to attract new industries to town, to replace the decline of the mills. Geiger Brothers was the first success story, and is still doing well today. As Bates Mill started to shut, the Development Corporation actually bought the buildings from the mill and leased them back to the company, as well as other entrepreneurs in the area.

Jere reminisced about his early years as a campaigner, going door to door, and plotting strategy. Later on, Jere helped his kid brother Bill become District Attorney and later, state senator. After that, another of his many younger brothers, Bob, became an alderman, mayor and state senator, before his appointment to the bench.

Jere echoed a constant theme that I’ve heard from him many times since: Practicing law today is not as much fun as it was early on. It’s now “too competitive” and too “bottom line oriented.” Jere also talked about working with my grandfather, Bill Clifford, who first started practicing law in 1915 (also not a very bottom line oriented guy). Together, father and son practiced law, mostly insurance defense, in the 50s and 60s. My grandfather was, by then, a true warhorse, in his seventies.

Jere’s best days included the leisurely summers of his youth, when the entire family of eight children, plus aunts and uncles, would gather at Pine Point to play cards, listen to the radio and play baseball every day.

Bottom line: There are at least 300 amazing stories in the archives. Check them out.

Author’s Note 1
Many notable Maine lawyers and citizens have also given histories. They include Chief Justice Daniel Wathen, Tom Allen, Elmer Violette, Lewis Skolnik, Earle Shettleworth, Neil Rolde, Larry Raymond, Harold Pachios, John Orestis, Ned, Martha and Jay Muskie, and Senator Muskie himself.

George Mitchell is featured prominently, as well as Frank Coffin. Both were key aides to Senator Muskie back in the day. Chief Justice McKusick, Judge Lipez and Elliott Cutler are also featured, as well as Governors Curtis, Baldacci and Brennan.

Author’s Note 2
This second Note is exclusively for “Kennedy lovers” and/or “Kennedy haters.”

1. My uncle Jere’s interview references his 1945 service with the V12 Naval Officer Training School at Bates. It does not reveal that one of his classmates was Robert F. Kennedy. As a charter member of the Barry Goldwater fan club, Jere could fairly be accused of bias. Regardless, he was less than impressed with “RFK” as a very young man. Young RFK was arrogant, spoiled and loathed by his Navy trainee classmates at Bates.

2. Jere’s maternal grandfather (my great-grandfather) Michael Sughrue, actually prosecuted Boston’s Mayor, John Fitzgerald, JFK’s grandfather. He charged Fitzgerald with corruption when he became Suffolk County District Attorney, during the Wilson administration. If that prosecution had succeeded, it is likely the Kennedy dynasty would never have existed. Thus, because of the lack of legal skill of one of my ancestors, JFK was elected president. A good account of the trial is found in the Kennedys and Fitzgeralds by Doris Kearns Goodwin.

3. I attended college with RFK’s son, Chris, who is an extremely nice guy. Uncle Jere could say what he would, but Ethel and Bobby raised nice kids.

4. I also volunteered on Joe Kennedy’s first congressional race in the early 80s (mainly as a way to meet “hot Kennedy chicks”). I was not given a coveted seat as Chief Legislative Aide, and remain bitter to this day.

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James P. Moore’s Human Sacrifice is an absorbing and challenging book about a sensational murder case, State of Maine v. Dennis Dechaine. Like any good story, Moore’s book is about more than one individual. It is a book challenging the very foundation of our complex criminal justice system: the integrity of the police, lawyers and judges who administer it.

Moore has a unique perspective. He is a retired law enforcement agent who worked for 25 years for the Alcohol, Tobacco and Firearms division of the U.S. Treasury Department, as Agent in Charge. He believes that convicted murderer Dennis Dechaine is innocent, the victim of a capricious and corrupt criminal justice system. He has written Human Sacrifice to explain why.

The actual facts of the case, as relayed by Moore, are gripping. In the first part of the book, he is a surprisingly good storyteller. This horrifying nightmare of a story is utterly fascinating, told in real time. The reader, in the early part of the book, is free to draw conclusions as the story develops.

The story begins on Wednesday, July 6, 1988, in the afternoon. Marjorie Roland returned to her house in Bowdoin, Maine from, at around 3:20 pm. She discovered that her 12-year old babysitter, Sarah Cherry, was missing. There was no sign of a struggle. Her baby, who Sarah was watching, was safe in the bedroom. Before the police were called, she picked up papers left in her driveway. She picked up a notebook and a repair estimate for a Toyota pickup showing the owner’s s name: Dennis Dechaine.

Around 8:30 p.m., 30 year old Dennis Dechaine was found walking aimlessly near the woods on a rural road in Bowdoin. A witness stopped his car to talk to Dennis, who was near the house of the witness’s relative. Dechaine looked “like he owned the place.”

When Dechaine was approached by the witness, he gave his real name, but lied about where he lived. He said he couldn’t find his truck. The witness and his wife, who were returning from their granddaughter’s softball game, played the role of Good Samaritans and offered to give him a ride to help him find the truck. He had no idea where it was. 45 minutes later, wanting to get back home to see a movie, they signaled for a deputy to stop, so that the police could take over the search for Dechaine’s lost red truck.

When Dechaine got into the cruiser, at around 9:30 p.m., the police, were already looking for him as a possible suspect in the abduction. Dechaine was with police officers from 9:30 until 4:20 a.m. He falsely told the officer that the keys were left in his missing truck, and that it was unlocked. (The keys at that time were in his pocket.)

Dechaine told the police he drove around all day, looking for fishing holes. He said he parked the truck, went into the woods to fish, and got lost.

He denied abducting Sarah Cherry. He admitted he might have been on the road where the abduction took place, after the police claimed he was seen there. He was not sure. He said the documents found at the scene of the abduction might have fallen from the front seat of his truck when he went to urinate in a driveway in the middle of the day. He didn’t know where the driveway was. He didn’t see a house.

At around 2:00 am, after the red pick up had been found, a canine was sent into the woods near the truck to search for the body. It appeared to have a scent. The dog crossed the roadway, but got distracted when a “deer scent” was picked up. The trooper also thought he heard a noise from a nearby deer at this time. The search was abandoned after the dog lost the scent.

Before being dropped off, Dechaine acknowledged that he had the keys, and that he lied to about his address to the good Samaritans. He agreed to allow the truck to be tested, and to give a polygraph “in a few days.” He had scratch marks on his body, a bruise on his bicep. His pants and shoes were wet.

When he got back to his house, he showed his wife marks on his arm from where he injected himself with amphetamines that morning. His eyes were dilated. “I kept asking myself: Could I have kidnapped a child? I can’t remember my day.”

Over the next few days, as he talked to his wife, Dechaine could remember only bits of what happened that day. He told her “ I have a feeling I might have done something awful while I was on that drug but I can’t remember. I can’t remember.”

Two days later, around noon, Sarah’s partially buried body was discovered in the woods only a few hundred yards from the location of Dechaine’s red pickup truck. Yellow plastic rope bound her wrists. She died of strangulation, with a dark blue bandana in her mouth. There were multiple small stab wounds. There were obvious signs of sexual abuse. A large pool of blood was found underneath her head. “Rigor mortis,” the temporary stiffening of the body that takes place after death, appeared to be “passing off.”

The rope used to tie Sarah Cherry was the same rope found in Deschaine’s red pickup. Dechaine’s house contained similar bandanas. However, there was no blood, hair or fibers in the truck.

When the police returned to Dennis’ home, shortly after the discovery of the body, his wife gave them the clothes that had been laundered, and several bandanas. She innocently told the detectives about a “teeny knife” on Dennis’ keychain. She was told by the officer it was missing from his keychain when they searched him. (Was this the murder weapon?)

Admissions

While at Dechaine’s home during the search, the officers recorded that Dechaine made a number of admissions:

• … The real me isn’t like that.
• ….it must be someone else in me that’s doing this.
• …it’s not the real me.

Later, at the jail, Dennis said:

• If I had committed this crime, I was not in my right mind.
• I don’t know whatever made me do that.
• He sobbed: “I can’t believe it happened.”
• OhmygodwhydidIdothis.
• I told my wife I had done something bad and she just laughed at me.
• I told her I wouldn’t kill myself. Besides, that’s the easy way out.
• Something inside made me do that. Why would I do this?
• I didn’t think it happened until I saw her face on the news then it all came
back.
• What punishment could they ever give me that would equal what I’ve
done?
• I wished I had never gone down the road that day.
• Why did I let this happen?

Earlier, Dechaine had asked to speak to his lawyer. According to the state, these admissions were not in response to questioning.

Dechaine denied confessing to the crime at his trial. He doesn’t believe the admissions set forth above were quoted accurately by the police. There were no tape recordings of the admissions, and no writings.

If these devastating admissions were in fact uttered, it is difficult to fathom why there is such a large group of citizens calling for Dennis to be freed. Why do so many people believe he is innocent? Next month, we’ll look at Moore’s many criticisms of the State’s case.

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In many respects, the development of e-discovery is yet another step away from the mythical “golden age” of trial practice – when cases could be tried quickly, well and inexpensively. We may now be in a “dark age” of e-discovery, when even smaller cases are expensive, complex and risky.

In the “good ole days,” secrets were stored in people’s heads. They were frequently spilled after healthy doses of alcohol, or sodium pentothal (like in the Manchurian Candidate). Now, the secrets needed to win cases are buried deep in hard drives.

Luckily for us, a recent federal Bench bar conference, led by Gigi Sanchez, Paul MacDonald and Bernie Kubetz, was held on this topic. MLR’s notetaker in chief, yours truly, was there to record the fun.

1. Overview.
Electronic discovery is “a process.” It is not simply complying with a particular rule. From the outset, there is a duty for counsel to preserve all electronic items that should be reasonably anticipated. The trade off is always relevance versus cost.

The standard is whether the person in custody of the electronic data “knew or should have known” that it needed to be preserved. A good “litigation hold” letter will ask for suspension of applicable electronic data destruction policies. At the same time, Federal Rule 37(e) arguably provides a modest “safe harbor” for data destruction policies and procedures conducted in good faith.

Quality control is important. If you just get junk in the e-response, and it’s not in any way relevant, the party producing may be subjected to stiff financial sanctions. A good discovery response will be searchable in PDF format.

Frequently, the initial 26(f) conference misses a lot. The parties don’t really know what’s out there. It’s important to revisit the electronic discovery issues as you go forward.

According to the panel’s view of Rule 26, most everything is discoverable, but requests must be proportional. See: Federal Rule 26(b)(2)(c) in particular, which governs the limits of discovery.

Under Rule 26(b)(2)(b) the twin issues of accessibility and undue burden must also be addressed. The shorthand question – is it relevant and is it reasonable to ask for it?

Bernie Kubetz believes there are two other questions: 1) Can your office handle e- discovery? and 2) Do you have access to a technical person to help with the technical issues in your firm? If either is no, you may want to refer the case out.

2. Litigation Hold Letter.

It is necessary to do a “litigation hold” letter whenever electronic discovery may at issue. This should be done right away, before suit is filed. The duty to avoid evidence spoliation is an important common law doctrine in e-discovery. This doctrine is not rules based, for the most part.

You must negotiate the scope of the hold. Sometimes a 30(b)(6) deposition is needed to locate the custodian to the e-data will be needed. You must also talk to your client about the expense of e-discovery and whether or not it should be done.

An often overlooked step is to implement the hold. The hold’s terms should always be in writing and communicated to the client. The failure to request a hold letter can sometimes raise legal malpractice issues.

There is frequently a dance that takes place once the lit-hold request goes out. After the obligatory objections by counsel, the parties try to craft a satisfactory solution. “It is an invitation to dance.”

3. Form 52. Report of the Parties’ Planning Meeting.

Assuming you have not shipped the e-discovery case to an unsuspecting colleague, you may want to start the litigation phase by looking at Federal Form 52, which sets forth a model discovery plan for e-discovery. There are three key components to any discovery plan: 1) the scope of discovery; 2) method of e-discovery; and 3) privilege waivers.

Form 52 can be easily adopted for use in state courts.

(a) Discovery will be needed on these subjects: (describe)
(b) Disclosure or discovery of electronically stored information should be handled as follows: (briefly describe the parties’ proposals, including the form or forms for production.)
(c) The parties have agreed to an order regarding claims of privilege or of protection as trial-preparation material asserted after production, as follows: (briefly describe the provisions of the proposed order.)

When planning your e-discovery, consider whether you need active sources versus backup and inactive sources, which are much more expensive and burdensome to produce. Can you limit your e-discovery requests to the three or four key players who know about the issue? Can you search the produced data through a keyword search? Can you easily establish pertinent categories of documents?

4. Meta Data.

The discoverability of hidden “meta data” is frequently litigated. Meta data includes, for example, “rough drafts” or edits buried deep in a “Word” document. (That’s a big reason why letters are sent in PDF format, without meta data.)

The standard rule, often modified by agreement, is that the original format of the data is to remain unchanged. That will generally preserve meta data. For example, if the original document is in MS Word, it should be produced in MS Word.

Although you can ask for data in any form you want, the basic rule of thumb is that you never get direct access. You can’t go to somebody’s computer directly and hunt around. (Just like you couldn’t go to a business’s file cabinet and nose around without them observing and monitoring.)

A good question was then asked: “Is it bad to simply get the data in paper form?” Not necessarily. However, a major goal should be to obtain an ability to manipulate the data. Other times, you need to get the data in its original form, to see how it’s been manipulated by the other side.

5. “Quick Peak” & “Claw Back.”
These are a couple of important doctrines. In e-discovery, “quick peak” is a form of agreement that permits relatively rapid disclosure. It makes clear that there are “more documents out there,” to be sent after the initial production. However, rather than hold up production until all documents are ready, it is frequently easier to produce on an installment plan.
“Claw back” gives the sender everything, but retains the right to retrieve privileged materials that are inadvertently disclosed in the rush to produce. Claw back can save countless hours of scanning documents, but is a somewhat risky cost saving measure.

6. Privilege Waivers.
Privilege waiver agreements are critical. Without these agreements, it is usually impossible to produce requested information in a complete and timely matter. These waivers are usually formally addressed in the discovery plan.

Like the doctrines of clawback and quick-peak, privilege waivers are needed in e- discovery because of the complexity associated with producing massive amounts of data, the need to get it out quickly, and the desirability of shifting the expense of searching each and every page of data to the other side.

Privilege agreements are in everyone’s interest. See: Evidence Rule 502. It should be “standard practice” to make sure that privileges are not waived, by agreement of the parties.

7. Cost Shifting.

Costs are another huge issue. Generally e-discovery costs are not “costs of litigation” that can be recovered at the end of the case, through a bill of costs. However, the risk of sanctions, and the need to devise cost shifting arrangements and strategies, are part of the process. Beware: Mindless or deceptive “data dumps” are impermissible and are potential ethical violations.
Cost shifting, via a bill of costs at the end of the case, is generally unheard of. Without an interim court order, the person responding to discovery traditionally has been forced to bear the cost. On the other hand, Rule 26 seems to encourage interim discovery orders to allocate the costs, before production.
In sum, it’s time to tear down the wall of e-secrecy. It’s time to start “a smashin!”

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One of the highlights of her talk was the disclosure of an important new “jury instruction,” in the form of a New Yorker cartoon, shown to the audience on a “big screen.” [The cartoon shows a stern judge admonishing the jury in a courtroom.]

“The jury is instructed to disregard my last tweet:

OMG he is soooooo guilty!”

As we all know, there are major differences between actual friends and “Facebook friends.” Judge McKeown reminded us of an old saying, that they’re as different as “leather and pleather.” Facebook friends, unlike most real friends, can cause a lot of legal trouble.

Judge McKeown pointed out that the development of social networking has parallels with other technological innovations, such as the telegraph. She described the telegraph as the “Victorian internet.” Anticipating Al Gore, the telegraph was described in its day as the “highway of thought.”

As today, in the late 19th century, many people believed that the telegraph would solve a host of social problems. As today, the government debated whether to tax or regulate the new technology.

There are obvious differences between the telegraph and internet. The cost per word of using the telegraph, in today’s dollars, was $1,000 per word. It is now much less than 1¢ per word to use the internet. In 1993, three were only 50 websites. Now there are 15 billion web pages, at last count. The basic point is there are now new countless opportunities to communicate on the internet, and countless ways to mess up.

Trouble can be avoided by always remembering the Bar rules and by using common sense. For example:

• Have you identified your firm in your Facebook profile to persons that may not agree with your political views?

• Have you accidentally revealed confidential information?

• Does what you say reflect poorly on a party you represent, your firm, or the justice system?

• Have you or your firm posted a comment that detracts from the dignity of the legal profession or the court?

It all comes back to good manners and ethics. Don’t post in anger.

Keeping things light, she displayed another cartoon on the big screen – this time showing a job interview – “Your resume is great but your Facebook page is weak.”

Judge McKeown quickly pivoted to confidentiality issues. You can’t leak confidential information on Facebook, or anywhere else, under any circumstances. Is your trial blog or Facebook post appropriate? One “careless tweet” can ruin a judicial or legal career.

Issues of dignity can also arise. For example, a judicial clerk identified himself as the “tickle master” in electronic communications. The clerk’s judge was not amused.

Privacy is also at issue. The amount of information on your Facebook page that is now private by default is tiny compared to when it first started. This information can be accessed by many people. With this in mind, think carefully before joining a controversial protest group. Some forms of social commentary may be inappropriate for attorneys.

Can a judge befriend a lawyer on Facebook? Florida says no. Kentucky gives a qualified yes, but says “be careful.”

What about internet investigations? Is it ethical to Google applicants, or view their Facebook page, without informing them? As you “stalk” potential employees on Facebook, bear in mind that there are many questions you cannot ask, and areas you cannot delve into, in an interview setting. If you decline an applicant after checking their Facebook profile, and the profile information reveals prohibited information, you may have a big problem in a future discrimination suit.

A panel discussion was then held.

• What’s positive about social networking? “It’s a great marketing tool.”

• Are Facebook pages and other social networking issues discoverable? “You need to establish a high degree of relevance before the privacy interests can be breached,” according to most commentators. Regardless, your client shouldn’t blab on Facebook about the case.

• What if a client deletes an embarrassing admission on Facebook? “There may be spoliation issues.” It may be a good idea to discuss with our clients the issue of communication and confidentiality with respect to social networking.

• Facebook, to the extent it helps with investigations, presents hidden dilemmas. Judges and jurors are prohibited from doing independent factual research on the internet and should not be checking out the facebook pages of witnesses or parties. Most panelists agreed that we could talk to witnesses on Facebook, so long as we did not use deceptive means. It’s just like the phone, according to one panelist.

• Another issue is legal advice. Advice on Facebook may come back to haunt you. It is akin to legal commentary [ like this insufferable article] in a newspaper. Bad legal advice can be magnified in the large “echo chamber” of Facebook, [ or through distribution via Maine Lawyers Review] .

• Can you check out a job applicant on Facebook? As with other sources, be honest. It may be a good idea to tell the applicant what the policy is, i.e. that you may access their Facebook page as part of your policy. You may also want to consider firm policies with respect to social networking and what you can and can’t do.

• If one of the purposes of the firm website or Facebook page is to generate business clients, it may be a good idea to provide disclaimers when advice is given, so no potential attorney/client relationship is formed. It’s never a good idea to give fact-specific legal advice. It is not privileged. One commentator suggested having all persons on your website click a box to acknowledge that no attorney/client relationship is formed.

• Facebook amplifies and repeats legal advice many times, in unforeseen contexts and ways. That’s the danger. Act as if everything that is posted will be on the front page of the New York Times.

One last cartoon was shown by the good Judge, as the seminar ended. It showed a herd of buffalo with cell phones. “I love the convenience, but the roaming charges are a killer.”

Tweet you later!

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[Author’s Note: This is the last of an interminable series on foreclosure defense law. As we observed last time, the world, she’s a turnin’ quick, but the real estate market is still stuck in the muck.]

Before we start on Part 3 of this series, let’s once again get spiritually renewed. Let’s look at more wisdom from the ancient sages:

“Experience is what you get when you do not get what you want.” Anonymous
“Home run hitters strike out a lot” –Jackson, Reggie
“The significant problems we face cannot be solved at the same level of thinking we were at when we created them.” – Albert Einstein

1. UTPA

Attorney Andrea Stark of Biddeford spoke about unfair trade practices in foreclosure defense. Here’s a beautiful thought: Predatory lending behavior will likely result in a state UTPA violation.

Examples include inflated appraisals, and the submission and use of inflated income of the borrower (made without their knowledge). Also, look for bait and switch terms different than those disclosed, such as an off the record “promise” to re-finance six months later.

A big advantage of the UTPA is that it has a six-year statute of limitations. One of the governing cases is State v. Weinschenck, 868 A.2d 200, a 2005 case. Another helpful Massachusetts case is Commonwealth v. Freemont Investments, 897 NE.2d 548.

Some loans are presumptively unfair. Examples include loans that mature in less than three years or less; loans where the difference between the intro rate and the actual rate is more than 3%; loans where the loan debt to income ratio exceeds 50%; loans where the loan to value is 100%; loans where there is a prepayment penalty. Sometimes in order to prove damages in these cases, retro appraisals are needed.

There is some debate about whether there is a UTPA exemption for financial institutions.

In Provencher v. T & M Mortgage Solutions, 502 F.3d 29, (1st Cir 2007) the First Circuit held that the financial provider exemption to the UTPA only applies if the lender is “in compliance with federal or state laws.” This exception swallows the rule. The UTPA allows you to bring mortgage lender cases into the newly established State Business Court.

Remember to investigate whether there are RESPA Violations, especially after the consumer laws were amended this year and last. In sum, the UTPA protects homeowners from predatory lending.

2. Other Law.

A. Common law. The doctrine of unconscionability allows the Court to void the underlying contract when there has been fraud or other misconduct. Another theory is fraud in the inducement. See 9-A M.R.S.A. § 9-401 for a statutory definition of misrepresentation in the Uniform Commercial Credit Code. Another theory is negligence. A fourth is negligent misrepresentation. See Binette v. Dyer. A fifth is intentional interference with contract. A Sixth is conspiracy between the real estate agent/broker/lender.

B. Truth in Lending. Truth in lending in Maine is a state remedy, even though there is also a federal statute on point. Earlier courts have held that Maine’s statutory scheme 9-A MRSA-1-102, is as good as, or better than federal law. However, there are sharply limited statutes of limitations for truth in lending violations. Also, rescission, the primary remedy under Truth in Lending, used to be a great option. Now there is a requirement imposed by federal courts to pony up the down payment before requesting rescission.

C. Under RESPA, addressing settlement procedures, there is a one-year statute of limitations. However, under federal law, there is a three year SOL for servicers of loans.

D. Maine Consumer Credit Code. Don’t forget the Consumer Credit Code, 9 MRSA 401 et seq, relating to misrepresentations. Fraudulent inducement is found in 9-402. Attorney’s fees can be awarded if you can prove these violations. Also, the load star multiple will apply for attorney’s fees. Even contingency fees are permitted.

E. Mortgage Broker Regs. Don’t overlook Article 10 relating to mortgage brokers. There are a host of regulations, including the need for written disclosure of services and fees. Brokers seldom do it. They sometimes fail provide what they should under the law.

3. Legislative Update

There are several very important bills that recently passed, which you should download and print: LD1439 and LD1418. The first of the bills requires mandatory mediation and a 35-day notice to cure, from 30. It removes the no harm no foul provision on verifying lender income. If a lender didn’t verify income, the violation is still actionable even if the borrower had the resources to get the loan. The second, LD1418 requires a heightened standard of pleading and other consumer protections.

That was easy, wasn’t it? Now lets go SAVE HOMES!!

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By Peter Clifford

The world, she’s a turnin’ quick. Unfortunately, the real estate market is still stuck in the muck, spinning its shoddy wheels.

It’s time for Maine attorneys to push the proverbial ox cart out of the proverbial mud. Its time for us to buck up, start leading, and stop with the whining. The Legislature and the SJC have given us a wide arsenal of new tools to help our clients through the latter stages of the foreclosure crisis, “so let’s start usin’ ‘em.”

Before we go there, consider the sage (if depressing) advice of these wise leaders:

“If you are going through hell, keep going.” – Sir Winston Churchill

”Even the longest journey begins with the first step” –Chinese Proverb.

”What doesn’t kill me makes me stronger” –Camus, Albert

�

Ok- are you empowered yet? As the readership will recall from last

time, a group of volunteer attorneys, known as “Maine Attorneys Saving Homes,” (“MASH”) is training Maine attorneys how to fight “the foreclosure man.” The last article, summarizing points raised by Pine Tree Legal’s Chet Randall, addressed acceleration letters, faulty templates, affirmative defenses, and the real party in interest.

We are now ready for the red meat of foreclosure defense: tactics. This topic was addressed by attorney Jim Levis from the York County bar. One of Jim’s themes was that a few “bad apple” mortgage brokers behave as scam artists; some do unethical and illegal things at closings, frequently with bait and switch schemes. Don’t be surprised if your clients discovers the forms he or she submitted have been altered, so that the broker could earn a quick fee at the closing from an unqualified borrower.

Another central player in the drama is the servicer, essentially a bookkeeper for the lender. These folks frequently use harassing or even unlawful techniques as they try to collect from desperate borrowers.

Mortgage foreclosure lawyers are not paid very much money. They sometimes try to do things on the cheap, or a cookie cutter basis, as efficiently and cheaply as possible. There has been an epidemic of sloppiness both in closing documentation, as well as in foreclosure documentation. For example: Why is the bank’s lawyer doing an affidavit to support the acceleration clause? Does he or she actually have access to the records? Does he or she actually have proper authority to speak for the company?

1. Objectives. Jim Levis focused on the lawyer’s objectives. Winning is not the only or even primary goal frequently. Now, with mandatory foreclosure mediation, there are a host of opportunities for lawyers handling foreclosure defenses.

Loan modifications are frequently the goal for both parties. Foreclosure mediations will frequently focus on this goal. Go online to find out how to properly file the federal modification forms. Find out which lenders have gone into bankruptcy and/or have receivers.

If modification is impossible, don’t give up. Delay itself can be a goal. Delay can allow: a) a period time for the borrower to continue to reside in the house, rent free to get their feet back underneath them; b) to provide time for a sale or short sale.

Sometimes, foreclosure defenses should be deferred, and raised at “an optimal date and time.” In other words, talk settlement right after the lender’s summary judgment motion is denied. Don’t try this right after the attorney has spent a long time answering your three dozen summary judgment defenses.

2. Summary Judgment Practice. Your summary judgment arguments should usually assert that the record keeper hearsay exception had not been complied with. Arguably, the affiant may not have access to all of the necessary records, and/or may not have a basis to reliably calculate the amount due.

It is critical to review the record keeping evidence rules. The lender must produce admissible evidence, and the records must be available in the regular course of business.

Sometimes it makes sense to do cross motions for summary judgment. That way, if there is a fatal problem with the lender’s summary judgment materials, judgment for the borrower can be entered. That will stay any attempt to collect interest while the lender gets its house in order and attempts to refile the complaint.

The acceleration letter typically does not indicate what is owed. Again, there are frequently hearsay problems with this letter, including with the calculations of the correct amount due.

Frequently a power of attorney must be shown on the record. If the person giving the affidavit is not the authorized agent of the record keeper, there is a problem. Does the servicing agent have the right to speak for the lender? Don’t make that assumption. It must be proven. Another issue is who has access to the servicing agreement? It is usually not in the lender’s file.

Jim also discussed potential strategies. One is to ask the bank to waive interest. If interest is waived, it won’t go into the loan pool. It will be managed by the servicer for the trust. However, the principal will remain intact, avoiding a big write off.

3. Focus on Ambiguities. Look at the language in the acceleration letter. It sometimes leaves things ambiguous. If you do not do such and such within 30 days, we may accelerate vs. we shall accelerate. Compare the language in the acceleration letter to its counterpart, Paragraph 22 of the federal standard mortgage form. There are six things that the lender is required to say in order to properly accelerate in accord with the Fannie Mae mortgage. Acceleration defenses can’t be waived because that would violate Fannie Mae guidelines.

4. “Nigeria defense”. How do we know that the person attempting to collect is not a scam artist like the Nigerian e-mail scammers? Under the RESPA Statute, you don’t need to deal with the loan servicer until properly notified by the lender. When the attorney for the servicer does the servicer’s work, that is a red flag: the servicer does not have their paperwork in order.

Under the Rules of Procedure, the real party in interest must commence the lawsuit. If that is not the case, it is grounds for dismissal. One way to efficiently discover the case is to simply depose the record keeper. Put the burden on the bank to produce all the documents via a 30(b)(6).

5. Use Negotiable Instruments Law. Another point that Jim raised is that the mortgage and note are entirely separate entities. Every time a note is transferred, it should be properly recorded and endorsed in accord with UCC principles. Negotiable instruments law controls the note, including endorsements. As far as the mortgage goes, look to the statutes in terms of the mortgage itself, as well as local real estate and title law.

6. Who Has the Note? Usually the servicer doesn’t have the note. The note is like gold. It is sitting in a vault somewhere in New York. The servicer may not know where the note is. Generally, the holder of the note, if it is paid to the order of e.g. Wells Fargo, must endorse on the back of the note and have possession of the note. Without those two requirements, the lender may have a foundation problem. If the note is to the bearer, the bearer must be in possession of the note.

Jim reviewed a bad assignment. The stamped endorsement simply says “pay to the order of ….” If there is a blank endorsement, the bank needs possession.

7. Timing of Assignment. Another big question about assignments is, when was it done? Was it done after the acceleration letter? If so, it is likely invalid. What if the lender is in bankruptcy? Is a trustee needed? It may be that stamping after the foreclosure takes place is illegal because the allegations were untrue when made.

8. MERS. We then discussed an entity known as MERS, which is a “nominee” found in most mortgages approved by Fannie Mae. MERS stands for the “Mortgage Electronic Registry System.” First of all, the term “nominee” is legally meaningless and has never really been challenged. MERS does not have a legal interest in the note. It is in essence a “straw man.” In order to get meaning, one must look at the agreement between the entities, including MERS. Until the chain of authority with MERS is adequately established, it is still essential for the lender to prove possession of the note, etc.

To paraphrase Winston, if you are walking on hot coals, don’t stop to have a smoke. Keep on truckin’. Next time, we’ll finish with a variety of state remedies for bad behavior, when lenders cross the line.

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M.A.S.H. –Maine’s Foreclosure Defense Force: Part 1

By Peter Clifford

“Sell a man a fish, he eats for a day, teach a man how to fish, you ruin a wonderful business opportunity.” Karl Marx

Lawyers of Maine, unite! We have nothing to lose but our bank-financed chains!

Most Maine attorneys are familiar with “the call:” A desperate potential client is on the line. A foreclosure judgment will likely be entered soon. The client is facing financial ruin.

If you have received such a call, you are not alone. There are an estimated 125 new foreclosure filings each month in Maine courts. Most of these homeowners cannot afford private counsel and are facing the loss of their home, without any legal support.

Can we help? As Sarah Palin would say: (with a wink and a nod ) “You betcha.”

A dynamic new group of volunteer attorneys, known as “Maine Attorneys Saving Homes,” (MASH) is coming to the rescue. Sponsored by the Maine Bar Foundation, the Volunteer Lawyers Project and Pine Tree Legal Assistance, MASH was formed to respond to the current foreclosure crisis.

With apologies to Marx, MASH aims to teach you, the Maine practitioner, how to “fish” [translation: litigate] for “monstrous sharks” [translation: predatory lenders].

In exchange for a commitment to accept just one pro bono foreclosure case per year, MASH provides outstanding free training. MASH’s website can be found at http://vlp.org/resources/mash. Along with the training, MASH has developed strategies to make this area more feasible for practitioners. For example, many applicable statutes, including the Unfair Trade Practices Act, provide attorney’s fees to successful parties.

[Author’s note: I have handled foreclosure defense for many years, but attended a MASH training session in June to keep up with developments in this rapidly changing area of law. I was very impressed with the quality of the presentations.]

A growing number of lawyers and organizations, including the Maine Trial Lawyers Association, are forming partnerships with MASH. You should too. With luck and perseverance, the Maine bar will continue its tradition of leading the nation in the provision of pro bono legal services.

For the next three articles, we’ll briefly review principles explored more fully in the MASH foreclosure defense training. ps. The next training session will be in September.

Overview

An overview of the foreclosure process was given by Chet Randall of Pine Tree Legal. Some highlights:

1. The Acceleration Letter. Foreclosures typically start with the “dreaded letter.” The form and content of the acceleration letter is heavily regulated under Freddie Mac guidelines as well as state law. It must be perfect. It is frequently not, giving rise to our first defense. If it’s erroneous, the homeowner should argue that the entire foreclosure is invalid and must be “redone.”

The Maine Legislature just extended the right to cure to 35 days in recently passed legislation. Going forward, this change will surely lead to a period of transition and chaos as right to cure letters and acceleration letters are issued. Additionally, foreclosure mediation will now be required. A defective acceleration letter will help give your clients leverage in any future mediation.

Lenders frequently exclude mandatory language, required by the mortgage, from the acceleration letter. For example, they frequently try to combine the right to cure letter with the acceleration letter. Always look at Paragraph 22 of the standard Freddie Mac mortgage.

When you receive a Complaint, compare Paragraph 22 of the mortgage to the actual language of the acceleration letter. See if they are in agreement. If not, the acceleration is invalid.

2. Faulty Templates. Make sure the boilerplate in the Complaint and the supporting documents are 100% accurate. In light of new federal and state legislation, Courts now recognize that lender sloppiness and predatory behavior is no longer tolerated. The days of judges saying that defects don’t matter, “because the money is owed anyway,” are over. Typos on substantive issues can restart the clock.

Frequently, the loan servicers have poor recordkeeping systems. Sometimes, the proper record custodian cannot be located. The attorney for the lender is not a witness. He or she should not be permitted to provide unsupported assertions to sidestep foundational defects.

3. Affirmative Defenses. There are an infinite number of affirmative defenses. For example, the law of negotiable instruments is extremely complex and exacting. This area of law gives rise to a frequently overlooked affirmative defense: lack of a proper endorsement.

Sometimes a note does not get properly endorsed in accord with the UCC. If it is not a bearor note, than it has to be properly endorsed. In this era of universal assignments and widespread lender bankruptcies, make sure you have access to the original note, with endorsements. The bank can’t foreclose without possession of a properly endorsed note.

4. Right to Bring Action/ Real Party in Interest. Many times there is no clear indication that the “plaintiff” in the case has any actual right to bring the action. The borrower certainly has the right not to pay a fictitious payee, or a scam artist. The lender needs to overcome this particular defense in the pleadings or in the summary judgment motion by affirmatively showing that proper assignments have been made.

PTLA Website Resources. There is now an improved sample Answer on Pine

Tree Legal’s PTLA’s website, ptla.org. There is also a homeowner resource guide at ptla.org. There is a new paragraph in the standard answer. It has a provision in which authenticity is challenged. Next month, we review dirty tricks, er, I mean, tactics. As Michael Jackson would say, “We are the [foreclosure defense] world…so let’s start giving.”

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Jim arranged to be my advocate in a phone hearing and he straightened out the tangle and my benefits due came to me. Jim’s fees are fair and reasonable and sensitive to one’s economic situation. This is especially true given the time and sincere interest he devotes to a client and the experience he brings to the table.

I would recommend Jim to anyone having problems with the state support systems.

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