June 11, 2005

Downing Street Blues: Again, as with the DSM, this briefing paper, to be published in tomorrow's Times of London, from a meeting which took place two days earlier, dishonors Blair more than it does Bush. The one shred that defenders of the war still clung to as justification was that Saddam had "violated" UN Resolutions concerning inspections. Now it turns out that even the Blair Cabinet knew that was bogus; they had already agreed to go to war months earlier, and they were just looking for an excuse. The Bush-Blair relationship is as one-sided as the typical prison "romance"'; Bush should just start calling the P.M. "meat".

Anyways, here's the latest outrage:



Ministers are invited to:

(1) Note the latest position on US military planning and timescales for possible action.

(2) Agree that the objective of any military action should be a stable and law-abiding Iraq, within present borders, co-operating with the international community, no longer posing a threat to its neighbours or international security, and abiding by its international obligations on WMD.

(3) Agree to engage the US on the need to set military plans within a realistic political strategy, which includes identifying the succession to Saddam Hussein and creating the conditions necessary to justify government military action, which might include an ultimatum for the return of UN weapons inspectors to Iraq. This should include a call from the Prime Minister to President Bush ahead of the briefing of US military plans to the President on 4 August.

(4) Note the potentially long lead times involved in equipping UK Armed Forces to undertake operations in the Iraqi theatre and agree that the MOD should bring forward proposals for the procurement of Urgent Operational Requirements under cover of the lessons learned from Afghanistan and the outcome of SR2002.

(5) Agree to the establishment of an ad hoc group of officials under Cabinet Office Chairmanship to consider the development of an information campaign to be agreed with the US.


1. The US Government's military planning for action against Iraq is proceeding apace. But, as yet, it lacks a political framework. In particular, little thought has been given to creating the political conditions for military action, or the aftermath and how to shape it.

2. When the Prime Minister discussed Iraq with President Bush at Crawford in April he said that the UK would support military action to bring about regime change, provided that certain conditions were met: efforts had been made to construct a coalition/shape public opinion, the Israel-Palestine Crisis was quiescent, and the options for action to eliminate Iraq's WMD through the UN weapons inspectors had been exhausted.

3. We need now to reinforce this message and to encourage the US Government to place its military planning within a political framework, partly to forestall the risk that military action is precipitated in an unplanned way by, for example, an incident in the No Fly Zones. This is particularly important for the UK because it is necessary to create the conditions in which we could legally support military action. Otherwise we face the real danger that the US will commit themselves to a course of action which we would find very difficult to support.

4. In order to fulfil the conditions set out by the Prime Minister for UK support for military action against Iraq, certain preparations need to be made, and other considerations taken into account. This note sets them out in a form which can be adapted for use with the US Government. Depending on US intentions, a decision in principle may be needed soon on whether and in what form the UK takes part in military action.

The Goal

5. Our objective should be a stable and law-abiding Iraq, within present borders, co-operating with the international community, no longer posing a threat to its neighbours or to international security, and abiding by its international obligations on WMD. It seems unlikely that this could be achieved while the current Iraqi regime remains in power. US military planning unambiguously takes as its objective the removal of Saddam Hussein's regime, followed by elimination if Iraqi WMD. It is however, by no means certain, in the view of UK officials, that one would necessarily follow from the other. Even if regime change is a necessary condition for controlling Iraqi WMD, it is certainly not a sufficient one.

US Military Planning

6. Although no political decisions have been taken, US military planners have drafted options for the US Government to undertake an invasion of Iraq. In a 'Running Start', military action could begin as early as November of this year, with no overt military build-up. Air strikes and support for opposition groups in Iraq would lead initially to small-scale land operations, with further land forces deploying sequentially, ultimately overwhelming Iraqi forces and leading to the collapse of the Iraqi regime. A 'Generated Start' would involve a longer build-up before any military action were taken, as early as January 2003. US military plans include no specifics on the strategic context either before or after the campaign. Currently the preference appears to be for the 'Running Start'. CDS will be ready to brief Ministers in more detail.

7. US plans assume, as a minimum, the use of British bases in Cyprus and Diego Garcia. This means that legal base issues would arise virtually whatever option Ministers choose with regard to UK participation.

The Viability of the Plans

8. The Chiefs of Staff have discussed the viability of US military plans. Their initial view is that there are a number of questions which would have to be answered before they could assess whether the plans are sound. Notably these include the realism of the 'Running Start', the extent to which the plans are proof against Iraqi counter-attack using chemical or biological weapons and the robustness of US assumptions about the bases and about Iraqi (un)willingness to fight.

UK Military Contribution

9. The UK's ability to contribute forces depends on the details of the US military planning and the time available to prepare and deploy them. The MOD is examining how the UK might contribute to US-led action. The options range from deployment of a Division (ie Gulf War sized contribution plus naval and air forces) to making available bases. It is already clear that the UK could not generate a Division in time for an operation in January 2003, unless publicly visible decisions were taken very soon. Maritime and air forces could be deployed in time, provided adequate basing arrangements could be made. The lead times involved in preparing for UK military involvement include the procurement of Urgent Operational Requirements, for which there is no financial provision.

The Conditions Necessary for Military Action

10. Aside from the existence of a viable military plan we consider the following conditions necessary for military action and UK participation: justification/legal base; an international coalition; a quiescent Israel/Palestine; a positive risk/benefit assessment; and the preparation of domestic opinion.


11. US views of international law vary from that of the UK and the international community. Regime change per se is not a proper basis for military action under international law. But regime change could result from action that is otherwise lawful. We would regard the use of force against Iraq, or any other state, as lawful if exercised in the right of individual or collective self-defence, if carried out to avert an overwhelming humanitarian catastrophe, or authorised by the UN Security Council. A detailed consideration of the legal issues, prepared earlier this year, is at Annex A. The legal position would depend on the precise circumstances at the time. Legal bases for an invasion of Iraq are in principle conceivable in both the first two instances but would be difficult to establish because of, for example, the tests of immediacy and proportionality. Further legal advice would be needed on this point.

12. This leaves the route under the UNSC resolutions on weapons inspectors. Kofi Annan has held three rounds of meetings with Iraq in an attempt to persuade them to admit the UN weapons inspectors. These have made no substantive progress; the Iraqis are deliberately obfuscating. Annan has downgraded the dialogue but more pointless talks are possible. We need to persuade the UN and the international community that this situation cannot be allowed to continue ad infinitum. We need to set a deadline, leading to an ultimatum. It would be preferable to obtain backing of a UNSCR for any ultimatum and early work would be necessary to explore with Kofi Annan and the Russians, in particular, the scope for achieving this.

13. In practice, facing pressure of military action, Saddam is likely to admit weapons inspectors as a means of forestalling it. But once admitted, he would not allow them to operate freely. UNMOVIC (the successor to UNSCOM) will take at least six months after entering Iraq to establish the monitoring and verification system under Resolution 1284 necessary to assess whether Iraq is meeting its obligations. Hence, even if UN inspectors gained access today, by January 2003 they would at best only just be completing setting up. It is possible that they will encounter Iraqi obstruction during this period, but this more likely when they are fully

14. It is just possible that an ultimatum could be cast in terms which Saddam would reject (because he is unwilling to accept unfettered access) and which would not be regarded as unreasonable by the international community. However, failing that (or an Iraqi attack) we would be most unlikely to achieve a legal base for military action by January 2003.

An International Coalition

15. An international coalition is necessary to provide a military platform and desirable for political purposes.

16. US military planning assumes that the US would be allowed to use bases in Kuwait (air and ground forces), Jordan, in the Gulf (air and naval forces) and UK territory (Diego Garcia and our bases in Cyprus). The plans assume that Saudi Arabia would withhold co-operation except granting military over-flights. On the assumption that military action would involve operations in the Kurdish area in the North of Iraq, the use of bases in Turkey would also be necessary.

17. In the absence of UN authorisation, there will be problems in securing the support of NATO and EU partners. Australia would be likely to participate on the same basis as the UK. France might be prepared to take part if she saw military action as inevitable. Russia and China, seeking to improve their US relations, might set aside their misgivings if sufficient attention were paid to their legal and economic concerns. Probably the best we could expect from the region would be neutrality. The US is likely to restrain Israel from taking part in military action. In practice, much of the international community would find it difficult to stand in the way of the determined course of the US hegemon. However, the greater the international support, the greater the prospects of success.

A Quiescent Israel-Palestine

18. The Israeli re-occupation of the West Bank has dampened Palestinian violence for the time being but is unsustainable in the long-term and stoking more trouble for the future. The Bush speech was at best a half step forward. We are using the Palestinian reform agenda to make progress, including a resumption of political negotiations. The Americans are talking of a ministerial conference in November or later. Real progress towards a viable Palestinian state is the best way to undercut Palestinian extremists and reduce Arab antipathy to military action against Saddam Hussein. However, another upsurge of Palestinian/Israeli violence is highly likely. The co-incidence of such an upsurge with the preparations for military action against Iraq cannot be ruled out. Indeed Saddam would use continuing violence in the Occupied Territories to bolster popular Arab support for his regime.


19. Even with a legal base and a viable military plan, we would still need to ensure that the benefits of action outweigh the risks. In particular, we need to be sure that the outcome of the military action would match our objective as set out in paragraph 5 above. A post-war occupation of Iraq could lead to a protracted and costly nation-building exercise. As already made clear, the US military plans are virtually silent on this point. Washington could look to us to share a disproportionate share of the burden. Further work is required to define more precisely the means by which the desired endstate would be created, in particular what form of Government might replace Saddam Hussein's regime and the timescale within which it would be possible to identify a successor. We must also consider in greater detail the impact of military action on other UK interests in the region.

Domestic Opinion

20. Time will be required to prepare public opinion in the UK that it is necessary to take military action against Saddam Hussein. There would also need to be a substantial effort to secure the support of Parliament. An information campaign will be needed which has to be closely related to an overseas information campaign designed to influence Saddam Hussein, the Islamic World and the wider international community. This will need to give full coverage to the threat posed by Saddam Hussein, including his WMD, and the legal justification for action.


21. Although the US military could act against Iraq as soon as November, we judge that a military campaign is unlikely to start until January 2003, if only because of the time it will take to reach consensus in Washington. That said, we judge that for climactic reasons, military action would need to start by January 2003, unless action were deferred until the following autumn.

22. As this paper makes clear, even this timescale would present problems. This means that:

(a) We need to influence US consideration of the military plans before President Bush is briefed on 4 August, through contacts betweens the Prime Minister and the President and at other levels;
And there the memo "ends"; according to the Times of London, the last page is missing.
Last week was the busiest week, in terms of traffic, that this site has ever had without having a single post linked to by the Big Feet of the Blogosphere. And it now appears that I have two fans in Norway, who together constitute close to a quarter of my visits. Is there something about Smythe's World that just translates well to a Nordic audience? If there is, tell me what it is, and I'll do more of it.
Jesse Taylor and friends are doing some all-day thoroughbred blogging at Pandagon today, for the benefit of Amnesty International. So quit wasting time here, get with the program, and use your ill-gotten gains for some good....

June 10, 2005

Summer Sanders: In her own words.
Did you know that if you press the "Make a Donation" button on the right side of the screen, you can actually give me a gratuity for my blogging? And you don't even have to be American, either; it doesn't matter if you live in the San Fernando Valley, or Trondheim, Norway. Blew my mind too.
The Downing Street Memo: After having read this document, it's not hard to imagine why this might be a bigger story overseas than here in America. Bush and his cronies no longer even pretend that concepts like the "truth" are very important, and his political base doesn't have a problem with it. The DSM just tells us something we already knew. In Great Britain, on the other hand, the thought that their Prime Minister, the heir and successor to leaders such as Walpole, Pitt, Disraeli, Gladstone, Churchill, Atlee and Wilson, could have been played so blatantly by a character such as Bush...well, it makes one yearn for the days of the vigorous, strong leadership of Neville Chamberlain.

In any event, here it is, courtesy of the Times of London. I have emphasized particular sections dealing with our manipulation of intelligence to bolster the case for war, and the British attempt to create a rationale for war based on alleged violations of previous U.N. Resolutions:

From: Matthew Rycroft
Date: 23 July 2002
S 195 /02

cc: Defence Secretary, Foreign Secretary, Attorney-General, Sir Richard Wilson, John Scarlett, Francis Richards, CDS, C, Jonathan Powell, Sally Morgan, Alastair Campbell


Copy addressees and you met the Prime Minister on 23 July to discuss Iraq.

This record is extremely sensitive. No further copies should be made. It should be shown only to those with a genuine need to know its contents.

John Scarlett summarised the intelligence and latest JIC assessment. Saddam's regime was tough and based on extreme fear. The only way to overthrow it was likely to be by massive military action. Saddam was worried and expected an attack, probably by air and land, but he was not convinced that it would be immediate or overwhelming. His regime expected their neighbours to line up with the US. Saddam knew that regular army morale was poor. Real support for Saddam among the public was probably narrowly based.

C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record. There was little discussion in Washington of the aftermath after military action.

CDS said that military planners would brief CENTCOM on 1-2 August, Rumsfeld on 3 August and Bush on 4 August.

The two broad US options were:

(a) Generated Start. A slow build-up of 250,000 US troops, a short (72 hour) air campaign, then a move up to Baghdad from the south. Lead time of 90 days (30 days preparation plus 60 days deployment to Kuwait).

(b) Running Start. Use forces already in theatre (3 x 6,000), continuous air campaign, initiated by an Iraqi casus belli. Total lead time of 60 days with the air campaign beginning even earlier. A hazardous option.

The US saw the UK (and Kuwait) as essential, with basing in Diego Garcia and Cyprus critical for either option. Turkey and other Gulf states were also important, but less vital. The three main options for UK involvement were:

(i) Basing in Diego Garcia and Cyprus, plus three SF squadrons.
(ii) As above, with maritime and air assets in addition.

(iii) As above, plus a land contribution of up to 40,000, perhaps with a discrete role in Northern Iraq entering from Turkey, tying down two Iraqi divisions.

The Defence Secretary said that the US had already begun "spikes of activity" to put pressure on the regime. No decisions had been taken, but he thought the most likely timing in US minds for military action to begin was January, with the timeline beginning 30 days before the US Congressional elections.

The Foreign Secretary said he would discuss this with Colin Powell this week. It seemed clear that Bush had made up his mind to take military action, even if the timing was not yet decided. But the case was thin. Saddam was not threatening his neighbours, and his WMD capability was less than that of Libya, North Korea or Iran. We should work up a plan for an ultimatum to Saddam to allow back in the UN weapons inspectors. This would also help with the legal justification for the use of force.

The Attorney-General said that the desire for regime change was not a legal base for military action. There were three possible legal bases: self-defence, humanitarian intervention, or UNSC authorisation. The first and second could not be the base in this case. Relying on UNSCR 1205 of three years ago would be difficult. The situation might of course change.

The Prime Minister said that it would make a big difference politically and legally if Saddam refused to allow in the UN inspectors. Regime change and WMD were linked in the sense that it was the regime that was producing the WMD. There were different strategies for dealing with Libya and Iran. If the political context were right, people would support regime change. The two key issues were whether the military plan worked and whether we had the political strategy to give the military plan the space to work.

On the first, CDS said that we did not know yet if the US battleplan was workable. The military were continuing to ask lots of questions.

For instance, what were the consequences, if Saddam used WMD on day one, or if Baghdad did not collapse and urban warfighting began? You said that Saddam could also use his WMD on Kuwait. Or on Israel, added the Defence Secretary.

The Foreign Secretary thought the US would not go ahead with a military plan unless convinced that it was a winning strategy. On this, US and UK interests converged. But on the political strategy, there could be US/UK differences. Despite US resistance, we should explore discreetly the ultimatum. Saddam would continue to play hard-ball with the UN.

John Scarlett assessed that Saddam would allow the inspectors back in only when he thought the threat of military action was real.

The Defence Secretary said that if the Prime Minister wanted UK military involvement, he would need to decide this early. He cautioned that many in the US did not think it worth going down the ultimatum route. It would be important for the Prime Minister to set out the political context to Bush.


(a) We should work on the assumption that the UK would take part in any military action. But we needed a fuller picture of US planning before we could take any firm decisions. CDS should tell the US military that we were considering a range of options.

(b) The Prime Minister would revert on the question of whether funds could be spent in preparation for this operation.
(c) CDS would send the Prime Minister full details of the proposed military campaign and possible UK contributions by the end of the week.

(d) The Foreign Secretary would send the Prime Minister the background on the UN inspectors, and discreetly work up the ultimatum to Saddam.

He would also send the Prime Minister advice on the positions of countries in the region especially Turkey, and of the key EU member states.

(e) John Scarlett would send the Prime Minister a full intelligence update.

(f) We must not ignore the legal issues: the Attorney-General would consider legal advice with FCO/MOD legal advisers.

(I have written separately to commission this follow-up work.)


"C", by the way, was Sir Richard Dearlove, the head of MI-6; like the rest of you, I always assumed he was called "M". Sir Richard resigned shortly after war began in Iraq.

June 09, 2005

Perhaps if they were to nominate a former slave-holder to lead the Civil Rights Commission...another good column from Michael Hiltzik, on the nominee from the Bush Administration to lead the Securities and Exchange Commission, Chris Cox. BTW, why is it that every good columnist for the LA Times (ie., Hiltzik, Lopez, Simers, Brownstein) writes for sections of the paper other than the Op-Ed?
Bush Lied: Why Steve Nash was a deserving MVP this season.
YBK, Part 3: Previously (here and here), I wrote about the frightening possibility that the Housing Bubble might burst at or before the time the new Bankruptcy Law goes into effect. To show the strong correllation between the number of bankruptcy filings and the value of residential property, I have compiled a chart to show the relationship between the percentage of bankruptcy filings per state in 2004 and the rise in property values since 2000, based on statistics from the U.S. Trustee's Office and the Office of Federal Housing Enterprise Oversight.

The numbers in red represent states that have an above-average percentage of bankruptcy filings per 10,000 residents (for example, Utah, which has had the lowest growth in residential property values over the past five years, also had the highest ratio of bankruptcy filings in the country). As you can see, states where the value of residential property has skyrocketed in recent years are at the top of the list in terms of bankruptcy avoidance, while states that have experienced mild growth are at the bottom (the big exception, of course, is Nevada, which, for reasons easy to understand, has seen both a property explosion and has had a relatively high number of filings over the years). If/when we begin to see a decline in states like California, Massachusetts and New York, which have relatively few filings in relation to their population, the result could be catastrophic.

June 08, 2005

The answer to the Quickie Trivia question from May 26 is...John Miller, who homered in his first plate appearance with the New York Yankees in 1966, and his last plate appearance with the Dodgers in 1969. Those were the only two home runs of Miller's career. Paul Gillespie, a catcher with the Chicago Cubs, also homered in his first (1942) and last (1945) regular season plate appearances, but spoiled things by subsequently going 0 for 6 in the 1945 World Series.
One of the more fascinating aspects of writing a blog is discovering that you have readers out there that you've never met, that seem to have no logical connection to you, but who visit your site with remarkable consistency. For example, according to my referral logs, two of my most frequent visitors are from New Mexico and Norway, or at least use web providers from those locations. I'm almost certain that I know of no one from New Mexico or Norway, nor have I ever written about topics that would be of obvious interest to people from those locations. So, please, when you have the time, introduce yourselves....

June 07, 2005

Let's get this straight. George Bush is not considered to be a moron because he was a C-student at Yale. He's thought to be a moron because he has no intellectual curiosity, possesses not a shred of self-doubt, and has little interest in the opinion of others. I suppose the fact that he rarely cracks open a book may be a factor as well. He also happens to be one of the most unpleasant a-holes ever to come to power in the West, his faux-religious sentiments notwithstanding. In any event, such traits are likely a sign of intellectual insecurity, but are not necessarily inconsistent with being a good President.

Unfortunately, the people he surrounds himself with are not the sharpest tools in the shed, either. His economic policies have been disastrous, his foreign policy is short-sighted and has been consistently characterized by a lack of preparation, whether it entailed dealing with pre-attack warnings before 9/11 or what to do after the fall of Saddam. He is a very able politician, but skill in that area is determined by shrewdness in dealing with the public, not intelligence. The ability to exploit the class anger and racial divisiveness in the Red States does not require a politician to be a genius, just as the exploitation of that base superstition which is euphemistically called "Fundamentalist Christianity" does not require any great philosophical understanding of the world.

Having said that, WTF was Kerry's rationale in not signing that damned form? That his grades at Yale were about the same as Bush's? Jeez, would anyone have cared about that? If people did care about that, he could have always pointed out that he had the higher grades during the only relevant period, the two years both he and Bush were together at Yale (1964-1966). The question about which of the two candidates was the more intelligent was quite dramatically resolved not when they attended college four decades ago, but over the three debates last year, in which Kerry kicked Bush's ass.

More to the point, why didn't Kerry want his military records out? Over the past few months, I've read rumors that the reason Kerry didn't want to sign Form SF-180 releasing all of his military records was that they would prove he exaggerated his service record, as the SBV's claimed, or that he had received a dishonorable discharge that he later expunged from his record. Even I thought that he was probably embarrassed about something; my guess is that he had contracted an STD over in Vietnam. It turns out, none of that was true.

Instead, the newly-released records make him look even better than before, if the Boston Globe (hardly a sympathetic paper to the Senator) is to be believed. The same lying dirtbags who accused Kerry of faking his injuries and exaggerating his combat performance are now shown to have written commendations for young John Kerry, calling him "one of the finest young officers with whom I have served"..."the acknowledged leader of his peer group," and ..."highly recommended for promotion."

Would it have mattered? For his opponents, no; the whole point of the Swift Boat accusations wasn't that they were true, but that the slander was repeated, again and again, by people who honestly didn't care. The fact that many of the people who pushed the story were bloggers with law degrees is part of the shame of my profession. For others, Kerry's war record (and Bush's dereliction of same) was a direct repudiation of their lives, that it could be possible to love one's country and serve it courageously while still being a critic of its policies; it was no coincidence that the chickenbloggers were most vociferous on this issue. If he had signed the form, they would have ignored it, since it was more important to pretend Kerry had something to hide.

But such partisans are a minority. The Swift Boat Ads were only played in a few states, but seemed to have had an especially dramatic impact in Ohio. A stronger response by Kerry could have swung that state into his column. Ultimately, he's responsible for not seizing the opportunity.

June 06, 2005

YBK, Part Two: Part of my concern about “YBK” stems from my experience when I first started practicing bankruptcy law in Southern California. In the mid-90’s, grifters and con-artists, with more than a few attorneys at their side, would mark people on the verge of losing their homes. They would utilize several different legal maneuvers to separate the victim from his dwindling assets, many of which included the filing of a bankruptcy petition.

In bankruptcy, the filer immediately receives an “automatic stay”, a court order which immediately halts all collection activity, including the prosecution and enforcement of civil suits, foreclosures, and other efforts by the secured lender to obtain the right of possession to the home or automobile. In the typical Chapter 13 case, a debtor who has defaulted on his mortgage will use the automatic stay to prevent a foreclosure sale, and submit for court approval a plan to repay the amount in default, usually over three years, while keeping current on future monthly payments as they come due.

Before the housing boom of the late-90’s, we witnessed in Southern California an explosion in bankruptcy filings, including a disproportionately high number of Chapter 13’s. These occurred in spite of an otherwise strong economy, then at the height of the dotcom boom and amidst national prosperity. Those who hadn’t made it, burdened with heavy debt, and unable to utilize the equity in their homes to refinance, chose to do whatever was necessary to hang on until things got better.

From 1996 to 1999, California averaged over 196,000 bankruptcies a year, with a high of 213,213 in 1998 (in comparison, there were only 122,696 filings last year). During that same four-year period, there was an average of over 37,000 Chapter 13 petitions filed, including 40,286 in 1997. Last year, only 17,117 Chapter 13’s were filed in California, a downward trend that, as I noted last week, has continued even during the recent explosion in filings following passage of the new law. The difference between 1998, the height of the dot com boom, when the national budget ran a surplus, and now, is that while the rest of the economy went to hell in a handbasket, the housing market exploded.

But before we had an “exploding” housing market, bankruptcy was the popular option for people desperate to save their homes, led, in no small part, by some of the worst bottomfeeders in our society. These articles (here and here) show the lengths to which some scam artists will prey on those who’ve fallen behind on their mortgage. Using public records, they find out who has a Notice of Default recorded on their property, or even a Notice of Trustee’s Sale, which sets the date for foreclosure, and will send out mailings offering a solution.

From there, two scams were popular. One was to file a bankruptcy, and use the automatic stay to postpone the foreclosure sale. Since the fees for filing a Chapter 13 are lower, and the burden it imposes on the mortgagor to prove bad faith is much higher, it usually could be sold to a prospective debtor pretty easily. Hopefully, the debtor would remain current under the plan, buy some valuable time, and keep his home.

All too frequently, however, the party filing the Chapter 13 simply didn’t have the wherewithal to pay off his debts, and the whole exercise was pointless. The debtor would not be given adequate legal advice as to what his obligations were under a 13, and he’d show up at the initial creditors meeting without payments, which would lead to the immediate dismissal of his case. He could immediately refile, and if he played his cards right, he could file several cases consecutively, but ultimately, he would still lose his home.

Frequently, the debtor would never even be told that he had to attend this meeting in the first place, and see his case dismissed with an additional bar on refilling for six months. And, of course, he would still lose his home, plus have a bankruptcy filing on his credit.

Those were the lucky ones.

Some of the more sophisticated scams involved a debtor “signing” over title to his property to a third party. He would be told to begin making mortgage payments to a different entity, which would in turn pay off his arrearage. What the debtor didn’t know was that the third party had no plans to make any payments. Instead, the entity would accept the mortgage payments from the homeowner, file a Chapter 13 bankruptcy, either under the debtor’s name or under the name of a fictitious party, and use the automatic stay to buy time, fooling the debtor into believing that the foreclosure had been permanently postponed.

But of course, it had only been temporarily delayed. One particular con man set up a whole series of “trusts” that did little more than transfer fractional interests in real property between each other. The “trust” would then file bankruptcy. In order to get assigned to a particular judge who was known for his “do nothing” stand on bankruptcy fraud, information would be included on the bankruptcy petition linking the new case with a previous case before the same judge. If the debtor ceased making payments to the con man, the bankruptcies would cease, and the home would be foreclosed; at that point, the debtor would lose both the home and his credit rating, plus be the subject of a criminal investigation by the FBI for activities of which he had been completely unaware.

Some of the more brazen scams involved outright forgery. Someone who filed bankruptcy previously would later discover that his petition had been “refiled”, using a different address, with the intention of using the automatic stay to protect someone else’s property. On several occasions, the “debtor” didn’t even bother to file a new case; he simply whited-out the case number on a copy of someone else’s petition, added a new name and case number, and voila, instant bankruptcy.

Back then, I was principally a counsel for institutional lenders, so I would get cases like the ones described above on a daily basis. Then, in 1999, a combination of factors, led principally by an improvement in the housing market which alleviated the root cause, but also due to the efforts of the local U.S. Trustee, Maureen Tighe (now a Bankruptcy Judge in the SFV), and the attorneys on her staff, to more vigorously pursue fraud, the Central District began to see a decrease in foreclosure scams. Chapter 13 filings declined, much of my workload disappeared, and I was forced to pursue the joys of sole practitioning.

So it is with a great deal of trepidation that I see this same thing happening again: homeowners unable to refinance because their equity has been exhausted, unable to keep current on their mortgages, but still hoping against hope that their homes might be saved. Bankruptcy, like any other area of law, can be gamed by the unscrupulous, who will look at the new law as a challenge, not a barrier.
I wonder if the Bushies realize that even trying to distinguish between G-mo and Stalin Era gulags is a sign that Osama has, indeed, won the "war". The America I grew up in and loved was a tolerant beacon of freedom, settling for nothing less than the highest standards of justice and due process for itself and others. Since the Towers fell, our leaders seem to have forgotten those aspirations, aiming instead for Brezhnevian authoritarianism at home, while developing electoral-based kleptocracies abroad. We should be better than that.

June 05, 2005

It's a couple years old, but here's a funny piece on Oscar-winning actress-turned-Labour M.P. Glenda Jackson, attending her first baseball game in San Francisco at the tail-end of the 2003 season (a 5-0 Dodger win, btw). Jackson, who was at one time her country's Minister of Transportation, recently won reelection to her fourth term, and has settled into life as a backbencher, vociferously attacking the Blair Government's position on Iraq and calling for his resignation.