Thursday, August 22, 2013

Born that way (but not THAT way)

On Monday, NJ Governor Chris Christie signed a bill barring any person licensed to provide professional counseling from counseling minors to avoid homosexual identity or behavior.  Reported as legislation to ban "conversion therapy," the text of the legislation, which I did not find in any of the news stories I read, is much broader.  The meat of the legislation reads as follows:
   2.    a.  A person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person who performs counseling as part of the person's professional training for any of these professions, shall not engage in sexual orientation change efforts with a person under 18 years of age.
     b.    As used in this section, "sexual orientation change efforts" means the practice of seeking to change a person's sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender; except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another, or counseling that:
     (1)   provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and
     (2)   does not seek to change sexual orientation.
The new legislation is being reported as restricting the actions of "licensed therapists," but clearly the real aim is parents whose attitudes are out of line with the opinions of the governor and the legislature.  It is unlikely that licensed therapists are cruising the school yards and pouncing on unsuspecting youths to ply them with "conversion therapy."  It is also unlikely that kids are sneaking out of their windows at night to seek out such therapy on their own.  No, if there is any counseling going on, you can be sure that it is by the wishes of the parents.

The new legislation serves to frustrate the wishes of those parents, substituting the judgment of elected officials for that of the parents over their own children.  The legislation does this indirectly, only because the legislature knows that to craft a more direct impingement of parental rights would doom an already constitutionally dubious law.  The federal courts have consistently maintained that parents have a fundamental right to direct the upbringing of their children as they see fit:
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944) 

The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court.  In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
Troxel v. Granville, 530 U.S. 57 (2000)

Section 2(b) of the legislation defines "sexual change orientation efforts," prefaced by the phrase that legislators are overly fond of: "including, but not limited to."   This phraseology, which also appears in Section 2(a), is often the "tell" for an overly broad legislative scheme.  Here, the definition includes (but is not limited to), "efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender."   What else is included?  Your guess as good as the legislature's.  The "but not limited to" language is a catch-all that is meant to send the message: "Don't even think about it."

By itself, "efforts to change behaviors" is quite broad.  Parenting is all about changing behaviors.  Children come into this world with an assortment of naughty inclinations, and it is the duty of parents to civilize them by changing their behaviors.  But the governor and the legislature have proscribed one set of behaviors that must not be changed.  Commenting on his signing of the bill, Governor Christie explained why this is so, saying that he believes that homosexuals are born that way.  But if parents must keep their hands off of any trait that a child is "born with," then parenting itself is eliminated.  "Stop putting clothes on that baby!  He was born that way."

But wait.  Even the governor must make exception to his "born that way" logic, because the legislation makes exception: "except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another."  If you were paying attention, you might have noticed that "gender" is something you were born with.  (We, like the New Jersey legislature, will overlook the grammatical rule that words have "gender," while people have "sex.")  Nonetheless, the legislation makes it explicit that a licensed therapist may counsel a minor toward changing genders.  Some speech is freer than others, and the professional discretion of the therapist is respected, except when it isn't.

The language restricting counseling (speech) is preceded by a litany of quotes from experts, associations, and studies (but none involving youth counseling), meant to give a veneer of objective scientific fact, that fact being that counseling youth away from homosexuality is harmful.  "The experts have spoken, so we must act!"  The underlying assumption is that the experts, or at least the ones favored by elected officials, are wiser than parents and therefore any interference with parental rights is justified by the compelling governmental interest of protecting children from the harm to which their parents are blind.

Conspicuously absent from any of the news articles I read on the New Jersey law was any mention of the newly enacted Russian law that has received so much opprobrium in recent weeks, and is the obverse of the New Jersey law.  It bans the "propaganda of non-traditional sexual relations."
Propaganda is the act of distributing information among minors that 1) is aimed at the creation of nontraditional sexual attitudes, 2) makes nontraditional sexual relations attractive, 3) equates the social value of traditional and nontraditional sexual relations, or 4) creates an interest in nontraditional sexual relations. 
Explaining the purpose of the law, Russia's Sports Minister, Viitaly Mutko said, ""We want to protect our younger generation whose physicality has not been formulated. It is a law striving to protect rights of children – and not intended to deprive anybody of their private life."  In other words, "it is for the sake of the children."

Regardless of one's views of homosexuality, legislation such as that in New Jersey and Russia should be condemned as intrusive overreach on the part of the government, infringing upon freedom of speech and parental rights.  Asserting that it is all done for the sake of the children is a feeble justification too often used by statists of all stripes.  Here again, the U. S. Supreme Court has it right:
The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 
The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.
Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.
Parham v. J. R., 442 U.S. 584 (1979)

 "The best interests of the child," a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. 
"The best interests of the child" is not the legal standard that governs parents' or guardians' exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.
 Reno v. Flores, 507 U.S. 292 (1993)

Posted at Irving Two Smokes

Wednesday, August 14, 2013

Fannie Mae (update)

In yesterday's post, I asserted that Fannie Mae lacks the authority to exempt itself from state disclosure laws. After doing additional research, I now conclude . . . that I was right.

A federal district court judge in Pennsylvania recently ruled that Fannie Mae is exempt from state and county transfer taxes.  The judge's opinion can be read here.  That makes four out of five federal decisions that have gone Fannie's way on that issue.  The judge based his ruling on a federal statute, 12 U.S.C. § 1723a(c)(2), which specifically exempts Fannie from transfer taxes.

But there is no similar statute granting to Fannie an exemption from disclosure laws.  It would be surprising to have Congress act to enable Fannie to drop hidden time bombs on unsuspecting buyers, after all.  Fannie is not exempt from disclosure requirements under state law, whether those requirements be for hidden defects, presence of lead paint, underground septic tanks, or anything else.  Furthermore, there is no prohibition in the Fannie Mae charter against issuing disclosure statements as some lenders have asserted in the past.

Therefore, Fannie Mae is being misleading, at best, when it includes this language in the addendum that it demands be signed by every purchaser of an REO property:
6) BUYER acknowledges that they [sic] understand Seller has never occupied, seen or personally inspected the property, and is exempt from traditional property condition disclosures.  ______ buyer initials. 
Fannie Mae might take the position that this claim is self-executing, meaning that regardless of whether there is a statutory basis for an exemption, Fannie Mae becomes exempt once a purchaser signs the addendum acknowledging the existence of the exemption.  I believe this argument too would fail.  No one, not even a quasi-government entity, can contract away its obligation to obey the law.


Tuesday, August 13, 2013

Fannie Mae's Undisclosed Problems

In a previous post, I described my own encounter with the heavy-handed and self-defeating procedures utilized by Fannie Mae to unload its REO/foreclosed properties.  I quoted the following provision from the contract addendum that Fannie Mae asks all purchasers to sign:
6) BUYER acknowledges that they [sic] understand Seller has never occupied, seen or personally inspected the property, and is exempt from traditional property condition disclosures.  ______ buyer initials.
I made the following comment:
I don't think it is quite that easy, however.  State disclosure laws still obligate the owner to disclose what he knows, even if he never lived at the property.  It is possible that Fannie Mae could receive an inspection report from a potential buyer, which would then need to be disclosed to future buyers.  I've read elsewhere that Fannie Mae attempts to avoid this problem by remaining willfully blind.  They refuse to accept any inspection reports because they do not want to be obligated to disclose anything.
This week, I had another encounter with Fannie Mae that might demonstrates the willful blindness I mentioned.

I had an interest in this house, which recently appeared on the County Sheriff's sale list:
1337 SE Cherokee
A review of the court records revealed that Bank of America (successor to Countrywide Home Loans Servicing, LP) filed the foreclosure action in September of 2011, alleging an indebtedness in the amount of $112,194 on a loan of $125,800.  (The house has been vacant since that time.)  Judgment was obtained in December of 2011, the property was appraised at $130,000, and it was sold at sheriff's sale.  Then the plaintiff's attorneys realized that they goofed by not attaching the endorsed note to the Petition, so they asked that their own judgment be vacated so that they could start over.

A new judgment was entered in August of 2012, but the plaintiff's attorneys bungled that one as well, so they once again had to start over.

A third execution and order of sale issued in December of 2012, and a sale was scheduled for February 19, 2013.  This time, the house was appraised at $146,000.  There is no explanation for why the appraised value went up by $16,000 in two years.  During that time, it suffered water damage, was broken into, and, based upon the items I saw on the floor when I peeked through the window, might have been used as a meth cook site.  I doubt that the meth chef made $16,000 in improvements to the interior.  

I was interested in bidding on the property, so in an attempt to gather all of the information I could, I tracked the mortgagor down and mailed her a letter, asking her to disclose what she knew about the physical condition of the property.  I was overwhelmed by her emailed response:

I had put in a koi pond in the back which was apparently vandalized a couple of months after we left.  I don't know if vandals ever broke into the inside of the house.

The roof on the back of the house (south corner) was damaged after a nasty windstorm.  The fascia board was almost completely torn off because the power to house was (brilliantly) attached to that instead of a more sturdy structure.  This exposed an opening that I imagine now may have a few critters seeking refuge... not to mention weather having access.

The kitchen has new appliances... Stainless steel side by side, oven with glass top and dishwasher.  The dishwasher apparently had a leak and may have damaged the floor beneath the vinyl tiles.

NONE of the windows downstairs will open (bought it that way).. Never got to fixing them because of the $10,000 quote.  The basement will be your biggest issue.

When there is a moderate rain, or snow melt, the basement floods.  There is a working sump pump, but (again brilliantly) it was attached to a garden hose outside... so when the temperature freezes... so does the hose... the sump pump will turn on, but not be able to evacuate any of the water due to ice in the hose.  There is a sink above the pump that goes to a regular drain, so you would have to bail out the pump into the sink.

When you have moderate to heavy rain or snow melt, water comes up through cracks in the floor, and squirts out of the walls like a water fountain.  My guess is the only way to solve the water issue in the basement is via French drains, but again... I couldn't afford to have them installed.

There are two HVAC units... one for upstairs one for downstairs.  I replaced the upstairs one a couple of years after I moved in.  The downstairs one died just before I left.  It was old... very old.

The wiring in the house is tricky.  Since I had a home based business, I had one room in the house completely re-wired to protect my computers, faxes, printers, copiers, etc.  The bedroom next to the downstairs bath is what I refer to as the 'safe room'.  It's the only one with decent electrical.

When in the basement, if you look up you will see the ceramic tubes with wire wrapped around them (old school wiring).  Whether that's active or not, or runs through the rest of the house or not, I can't really say.  There is a panel downstairs that the electrician worked with, and he didn't seem overly concerned.

I ran power out the garage because I had a lot of wood working equipment and had several outlets placed throughout the garage to accommodate them.

I also had power run from the garage out to where the pond is/was. It has it's own breaker in the garage.

The front facing window in the office/bedroom has a storm window.  The month that I left the house there was a huge storm.  The window filled with water then poured into the office.  I ended up drilling holes in the sill to help drain the water to the outside of the house because I couldn't get the storm window off.  It helped a lot, but the window would still leak into the room during a heavy storm.

In short, the house has everything but a poltergeist.  This was useful information.  I substantially adjusted my own  valuation of the property downward, but was still determined to attend the sale.

At the sale, the bank's attorney made a bid of approximately $99,000, which was more than I wanted to pay for a house that has alternating founts of storm water and bolts of electricity shooting out of the walls, so the bank got it, at which point it handed it off to Fannie Mae and exited the stage.

Eleven days ago, a For Sale sign appeared in the yard.  As with the other house I blogged about, Re/Max is the listing copany, but all offers must be made on-line, using Fannie Mae's Homepath website.  Here's the Homepath page for this particular property, offering it for sale at $121,900.  

If you view the photos and read through all the information on the webpage, you will not find any indication of the problems detailed in the email I received from the previous owner.  That's not surprising, since Fannie Mae never "lived there," and had no reason to seek out the previous owner for information.  

This is where the addendum language comes in.  It states that Fannie Mae has not seen the property and is exempt from disclosure laws.  Isn't it odd that they feel the need to announce that they are exempt?  If they have not seen the property and can honestly say they are not aware of any problems, why isn't that enough?  No "exemption" is necessary.

Maybe it is because there have been reports of Fannie Mae being informed of problems, whereupon they become deaf and dumb.  Consider this first-person account of Fannie Mae disclosure practices in California:
I used to work with a small team of REO listing agents and we had a Fannie Mae account. The asset managers expressly forbid us from sending them any reports or inspections on the properties. Even worse, they expressly forbid us from accepting or even looking at any inspections or reports done by buyers during an escrow. Their advice to us was that if a buyer’s agent emailed over an inspection report, delete it. 
Yes, the asset managers actually told us to delete files.
But such a thing wouldn't happen in Oklahoma, would it?  I emailed Re/MAX the list of horrors reproduced above, explaining that I received the list from the previous owner.  I asked whether any of those problems had been corrected.  Here is the reply I received:
Thank you for your interest in the property. The only repairs that are being done to our knowledge are some electrical and the only appliance that remains in home is a dishwasher. 
Okay, so they have chosen not to fix the leaky basement and other problems.  That's fine, but now that they are on notice of the problems, they must disclose them to all potential buyers.  60 O.S. 833 reads as follows:
A. A seller of property located in this state shall deliver, or cause to be delivered, to the purchaser of such property one of the following:
1. A written property disclaimer statement on a form established by rule by the Oklahoma Real Estate Commission which states that the seller:
a. has never occupied the property and makes no disclosures concerning the condition of the property, and
b. has no actual knowledge of any defect.
The Realtor also has a disclosure obligation per 60 O.S. 836(C):
A real estate licensee has the duty to disclose to the purchaser any defects in the property actually known to the licensee which are not included in the disclosure statement or any amendment.
Will Fannie Mae meet their disclosure obligations, or will they rely upon their self-proclaimed "exemption"?  If you are interested in 1337 SE Cherokee, I urge you to ask about known problems.  Let me know what you are told.  

Monday, August 12, 2013

The Bee Counters

Where in the Constitution is the general government delegated the authority to count bees and produce manuals teaching others how to capture bees and start their own collection?  I don't know, but these photos are cool.

My guess is that Thomas Jefferson would oppose this sort of governmental activity, but with great reluctance.