Home / Daily Dose / Counsel’s Corner: Facing Challenges in Financial Services The Best Markets For Residential Property Investors 2 days ago October 26, 2017 1,111 Views Data Provider Black Knight to Acquire Top of Mind 2 days ago HOUSING mortgage 2017-10-26 Nicole Casperson Counsel’s Corner: Facing Challenges in Financial Services Share Save Servicers Navigate the Post-Pandemic World 2 days ago Servicers Navigate the Post-Pandemic World 2 days ago Demand Propels Home Prices Upward 2 days ago Nicole Casperson is the Associate Editor of DS News and MReport. She graduated from Texas Tech University where she received her M.A. in Mass Communications and her B.A. in Journalism. Casperson previously worked as a graduate teaching instructor at Texas Tech’s College of Media and Communications. Her thesis will be published by the International Communication Association this fall. To contact Casperson, e-mail: [email protected] Editor’s note: This article first appeared in the October issue of DS News, out now. Kerry Franich is a certified specialist in appellate law who works in Severson & Werson’s Orange County office where he prosecutes and defends State and Federal Appeals covering subjects including financial services, real estate, arbitration, unfair competition, discrimination, judicial disqualification, and civil procedure. DS News spoke with Franich about the greatest challenges financial services’ attorneys are facing today and how his years of experience help him navigate today’s climate.What current challenges are appellate attorneys who work in default litigation facing?Procedurally, court congestion has worsened in many jurisdictions, which causes a lot of appeals to progress at a seemingly glacial pace. That’s frustrating for both us and our clients, particularly when a sale is being delayed because of an appeal. Similarly, cases filed in trial courts these days often survive longer than cases filed several years ago because today’s cases are usually less vulnerable to pleadings challenges. More frequently, eliminating them requires a motion for summary judgment or trial. So, one challenge is ensuring that our clients don’t get trapped in a holding pattern just because of a pending appeal or lawsuit. We find that stagnant cases often lead to other problems: property preservation issues, needless escrow advances, and ballooning loan balances, all of which reduce the probability of the borrower curing the default or qualifying for a modification. There are substantive challenges too. Regulatory compliance is rightly a top concern for most of our clients right now, but there are also basic macro-level changes occurring in the law right now that are equally important. For example, in some jurisdictions, our basic understanding of loan servicers’ roles and obligations is changing. Do they owe borrowers a duty of care when reviewing loan modification applications? Courts are dividing over that question, so the answer may depend on the jurisdiction in which you’re litigating. Likewise, litigation involving the various state homeowner bills of rights that were enacted years ago are now reaching appellate courts. So, we’re starting to receive guidance from those courts about what certain sections of those bills mean and require. In short, the challenge is keeping up with rapid changes in law, anticipating the direction the law is headed, and writing briefs that help shape the law’s direction. What strategies can servicers employ to avoid costs and delays? It obviously depends on the case, but generally speaking, there are a few strategies that servicers can consider. The common theme running throughout them all, however, is to be proactive rather than reactive: foreclose, sell, and evict. Absent confirmed wrongdoing or a genuine threat of exposure to liability, foreclosing, selling properties out of REO, and evicting as quickly as possible tends to mitigate costs and reduce the probability of sequel lawsuits. In some cases, proceeding with a foreclosure, sale, or eviction can also prompt new settlement negotiations or voluntary dismissals. However, depending on your jurisdiction and the facts in your case, this strategy may be unavailable (for example, there’s a stay forbidding a sale). In addition, servicers should stop successive modification reviews if possible. Anyone on the front lines of foreclosure-related litigation has no doubt encountered the homeowner who applies for a loan modification after filing a lawsuit, is denied, and then re-applies again a few days, weeks, or months later. This area is fertile ground for wasting both time and attorney fees.Successive reviews can also be dangerous. For example, when a borrower files a meritless lawsuit after repeatedly getting denied a loan modification, but the servicer thereafter commits an egregious mistake while re-reviewing him or her (such as inadvertently foreclosing during the review). Servicers need to be careful to avoid creating liability where there was originally none. Depending on the jurisdiction and the circumstances of the case, a servicer may be required to re-evaluate the homeowner for a loan modification. However, if no obligation exists, servicers that value efficiency will choose to decline starting another review when it has no chance of success and creates no advantage in defending the litigation. In what ways do you help the servicers you work with streamline the appeals process? We search for ways to terminate the appeal short of a decision on the merits. In cases pending in backlogged appellate courts, search for opportunities to ditch the appeal earlier by motion. Appellate courts tend to issue decisions on motions a lot faster than full-blown decisions on the appeals’ merits. Sometimes, this is as easy as identifying a jurisdictional defect, like an untimely appeal. But there are other more subtle attack strategies too. Has a pivotal issue in the appeal become moot? Is there a way to have a party designated as a vexatious litigant? Is there an order you obtained in the trial court you can enforce while the case is on appeal? If so, that might be a source of unexpected leverage—most appellate courts have the inherent power to dismiss an appeal where a party fails to comply with a trial court order (the disentitlement doctrine). In short, don’t assume you’ll need to wait two years for an appellate court to file a decision on the merits. There may be a way to kill the case earlier. How can attorneys partner with servicers to predict and plan for litigation expenses? Forming an estimated budget at the suit’s inception is typically helpful for both us and our clients. And if something in the case occurs that dramatically impacts the budget’s estimate, then obviously updating the budget is important. Flat fee billing structures are helpful for those clients that want greater accuracy in forecasting legal expenses. Another area that is sometimes overlooked is scrutinizing whether any offensive litigation can be filed that might offset the cost of defense. Default servicing litigation has traditionally been strictly defensive in nature. But an unsettling number of lawsuits against servicers sometimes reveal fraud and other misconduct committed by borrowers or other third parties. Yes, pursuing a cross-complaint may be futile if the target has no assets. But not always. 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Meditation’s positive residual effects First of two partsIn 2015, 16.1 million Americans reported experiencing major depression during the previous year, often struggling to function while grappling with crippling darkness and despair.There’s an arsenal of treatments at hand, including talk therapy and antidepressant medications, but what’s depressing in itself is that they don’t work for every patient.“Many people don’t respond to the frontline interventions,” said Benjamin Shapero, an instructor in psychiatry at Harvard Medical School (HMS) and a psychologist at Massachusetts General Hospital’s (MGH) Depression Clinical and Research Program. “Individual cognitive behavioral therapy is helpful for many people; antidepressant medications help many people. But it’s also the case that many people don’t benefit from them as well. There’s a great need for alternative approaches.”Shapero is working with Gaëlle Desbordes, an instructor in radiology at HMS and a neuroscientist at MGH’s Martinos Center for Biomedical Imaging, to explore one alternative approach: mindfulness-based meditation.In recent decades, public interest in mindfulness meditation has soared. Paralleling, and perhaps feeding, the growing popular acceptance has been rising scientific attention. The number of randomized controlled trials — the gold standard for clinical study — involving mindfulness has jumped from one in the period from 1995‒1997 to 11 from 2004‒2006, to a whopping 216 from 2013‒2015, according to a recent article summarizing scientific findings on the subject.Studies have shown benefits against an array of conditions both physical and mental, including irritable bowel syndrome, fibromyalgia, psoriasis, anxiety, depression, and post-traumatic stress disorder. But some of those findings have been called into question because studies had small sample sizes or problematic experimental designs. Still, there are a handful of key areas — including depression, chronic pain, and anxiety — in which well-designed, well-run studies have shown benefits for patients engaging in a mindfulness meditation program, with effects similar to other existing treatments.“There are a few applications where the evidence is believable. But the effects are by no means earth-shattering,” Desbordes said. “We’re talking about moderate effect size, on par with other treatments, not better. And then there’s a bunch of other things under study with preliminary evidence that is encouraging but by no means conclusive. I think that’s where it’s at. I’m not sure that is exactly how the public understands it at this point.”,Desbordes’ interest in the topic stems from personal experience. She began meditating as a graduate student in computational neuroscience at Boston University, seeking respite from the stress and frustration of academic life. Her experience convinced her that something real was happening to her and prompted her to study the subject more closely, in hopes of shedding enough light to underpin therapy that might help others.“My own interest comes from having practiced those [meditation techniques] and found them beneficial, personally. Then, being a scientist, asking ‘How does this work? What is this doing to me?’ and wanting to understand the mechanisms to see if it can help others,” Desbordes said. “If we want that to become a therapy or something offered in the community, we need to demonstrate [its benefits] scientifically.”Desbordes’ research uses functional magnetic resonance imaging (fMRI), which not only takes pictures of the brain, as a regular MRI does, but also records brain activity occurring during the scan. In 2012, she demonstrated that changes in brain activity in subjects who have learned to meditate hold steady even when they’re not meditating. Desbordes took before-and-after scans of subjects who learned to meditate over the course of two months. She scanned them not while they were meditating, but while they were performing everyday tasks. The scans still detected changes in the subjects’ brain activation patterns from the beginning to the end of the study, the first time such a change — in a part of the brain called the amygdala — had been detected.,The Daily Gazette Sign up for daily emails to get the latest Harvard news. Other MGH researchers also are studying the effects of meditation on the body, including Sara Lazar, who in 2012 used fMRI to show that the brains of subjects thickened after an eight-week meditation course. Work is ongoing at MGH’s Benson-Henry Institute; at HMS and Brigham and Women’s Hospital’s Osher Center for Integrative Medicine; at the Harvard-affiliated Cambridge Health Alliance, where Zev Schuman-Olivier directs the Center for Mindfulness and Compassion; and among a group of nearly a dozen investigators at Harvard and other Northeastern institutions, including Desbordes and Lazar, who are collaborating through the Mindfulness Research Collaborative.Among the challenges researchers face is defining mindfulness itself. The word has come to describe a meditation-based practice whose aim is to increase one’s sense of being in the present, but it has also been used to describe a nonmeditative state in which subjects set aside their mental distractions to pay greater attention to the here and now, as in the work of Harvard psychologist Ellen Langer.Another challenge involves sorting through the many variations of meditative practice.Recent scientific exploration has largely focused on the secular practice of mindful meditation, but meditation is also a component of several ancient religious traditions, with variations. Even within the community practicing secular mindful meditation, there are variations that may be scientifically meaningful, such as how often one meditates and how long the sessions are. Desbordes herself has an interest in a variation called compassion meditation, whose aim is to increase caring for those around us.Amid this variation, an eight-week mindfulness-based stress reduction course developed in the 1970s by Jon Kabat-Zinn at the University of Massachusetts Medical Center has become something of a clinical and scientific standard. The course involves weekly two- or 2½-hour group training sessions, 45 minutes of daily work on one’s own, and a daylong retreat. The mindfulness-based cognitive therapy used in Desbordes’ current work is a variation on that program and incorporates elements of cognitive behavioral therapy, which involves talk therapy effective in treating depression.Ultimately, Desbordes said she’s interested in teasing out just what in mindful meditation can work against depression. If researchers can identify what elements are effective, the therapy may be refined to be more successful. Shapero is also interested in using the study to refine treatment. Since some patients benefit from mindfulness meditation and some do not, he’d like to better understand how to differentiate between the two.“Once we know which ingredients are successful, we can do more of that and less, maybe, of the parts that are less effective,” Desbordes said.Research funding includes the National Center for Complementary and Integrative Health.For more information about the Mindfulness & Meditation program at Harvard University, visit its website. Meditation study shows changes associated with awareness, stress In her current work, she is exploring meditation’s effects on the brains of clinically depressed patients, a group for whom studies have shown meditation to be effective. Working with patients selected and screened by Shapero, Desbordes is performing functional magnetic resonance imaging scans before and after an eight-week course in mindfulness-based cognitive therapy, or MBCT.During the scans, participants complete two tests, one that encourages them to become more aware of their bodies by focusing on their heartbeats (an exercise related to mindfulness meditation), and the other asking them to reflect on phrases common in the self-chatter of depressed patients, such as “I am such a loser,” or “I can’t go on.” After a series of such comments, the participants are asked to stop ruminating on the phrases and the thoughts they trigger. Researchers will measure how quickly subjects can disengage from negative thoughts, typically a difficult task for the depressed.The process will be repeated for a control group that undergoes muscle relaxation training and depression education instead of MBCT. While it’s possible that patients in the control part of the study also will have reduced depressive symptoms, Desbordes said it should occur via different mechanisms in the brain, a difference that may be revealed by the scans. The work, which received funding from the National Center for Complementary and Integrative Health, has been underway since 2014 and is expected to last into 2019.Desbordes said she wants to test one prevalent hypothesis about how MBCT works in depressed patients: that the training boosts body awareness in the moment, called interoception, which, by focusing their attention on the here and now, arms participants to break the cycle of self-rumination.“We know those brain systems involved with interoception, and we know those involved with rumination and depression. I want to test, after taking MBCT, whether we see changes in these networks, particularly in tasks specifically engaging them,” Desbordes said.Desbordes is part of a community of researchers at Harvard and its affiliated institutions that in recent decades has been teasing out whether and how meditation works.In the 1970s, when transcendental meditation surged in popularity, Herbert Benson, a professor at Harvard Medical School and what was then Beth Israel Hospital, explored what he called “The Relaxation Response,” identifying it as the common, functional attribute of transcendental meditation, yoga, and other forms of meditation, including deep religious prayer. Benson described this response — which recent investigators say is not as common as he originally thought — as the opposite of the body’s adrenalin-charged “fight or flight” response, which was also identified at Harvard, by physiologist Walter Cannon Bradford in 1915. Related Meditation may relieve IBS and IBD Imaging finds different forms of meditation may affect brain structure Researchers found the relaxation response showed improvements in the two gastrointestinal disorders Eight weeks to a better brain
Through the 31 Lengths Campaign, a team of passionate Notre Dame students is using its business skills to create an entrepreneurship center at the Lacor Secondary School near Gulu, Uganda. Freshman Emily Mediate, undergraduate project leader, said the center’s resources will benefit the entire community of Gulu. “We are working on implementing a variety of programs at the center, including a speaker series, training of the librarian at the entrepreneurship center [and] implementation of entrepreneur teaching materials and an MBA internship program,” Mediate said. MBA student Conor Evans and his wife Lauren Evans used their talents in construction design and their interest in the role of business in emerging economies to found the campaign, Mediate said. She said Conor spoke with several non-governmental organizations in developing countries during the first year of his master’s program. Mediate said the story of Secretariat, a racehorse that won the 1973 Belmont Stakes by 31 horse lengths, inspired the campaign. According to the campaign’s website, Secretariat serves as a metaphor for people’s ability to achieve when they are empowered. The project is meant to strengthen education in Gulu and requires 90 thousand dollars to complete, Mediate said. “We are finishing raising the last part of funds for the library and will finish construction and begin implementation of business programs over the summer,” she said. Mediate said some of the campaign’s most successful fundraisers so far have been small. “We actually held an undergraduate dodgeball tournament event earlier in the month to raise awareness and funding for the project,” she said. “The event was a huge success.” Members of the campaign helped construct the entrepreneurship center during Notre Dame’s spring break, Mediate said. She said they will collaborate with the Invisible Children organization and Ugandan professionals to train the staff members that will run the center. “I heard from MBA students who went over spring break that there was a huge response from the children at the school,” Mediate said. “They are more than thrilled to be getting an entrepreneurship center at their school available with numerous resources to them.” Mediate said the campaign’s mission extends beyond raising money to construct a building. “This project is about using each individual’s talent in a way that unlocks the potential of others,” she said. The entrepreneurship center’s grand opening is scheduled for late August, Mediate said. She said she thinks the center’s inception will mark the beginning of educational growth in Gulu. “It has been amazing to see the project grow from an idea to a plan to a structure and an implementation,” Mediate said. “Not only is this project focused on building an entrepreneurship center with resources for the children at the secondary school, it aims to empower the Ugandan people to take advantage of the economic opportunities flourishing in Gulu.” For more information or to donate to the campaign, visit 31lengthscampaign.com.
Miller drew two flags for neutral zone infractions on second-and-10 and first-and-10, the second of which put the lowly 49ers in the red zone where they scored three snaps later. Three other Broncos also drew flags in San Francisco’s fourth scoring drive of the first half for a total of five penalties in a single drive.The loss broke Denver’s three-game winning streak that was highlighted by victories over the Chargers and the Steelers. The 6-7 Broncos will close out their season with games against the Browns, Raiders and Chargers. The drive late in the second quarter was littered with penalties from Denver’s defense and helped secure a first-half lead that San Francisco would never relinquish. “You can’t do it. Watch the ball and get off on the ball,” Joseph said Monday, via ProFootballTalk. “Von’s a gifted pass rusher so he doesn’t have to cheat the count to go. That drive before the half killed us. …”He can’t do it. He’s a gifted guy, so he can go on a snap and still win his one-on-ones.” Related News NFL Week 14 Blitz Read: Saints clinch second straight NFC South title with win over Buccaneers Von Miller is one of the best pass rushers in the NFL. So Sunday when Miller tried — and failed — to predict the snap count on multiple plays versus the 49ers, Broncos coach Vance Joseph wasn’t pleased. Denver went on to lose 20-14 in San Francisco.