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This issue of the Kentucky Bar CONTENTS Association’s Bench & Bar was published in the month of November. Legal Tools for a Tough Economy Communications & Publications Committee Frances Catron Cadle, Chair, Lexington 9 Loss Mitigation After the Housing Crash: Paul Alley, Florence Elizabeth M. Bass, Lexington Navigating Through the Making Home Affordable Zachary M.A. Becker, Frankfort Program James P. Dady, Bellevue By Melissa J. Whalen Judith D. Fischer, Louisville Cathy W. Franck, Crestwood William R. Garmer, Lexington 15 Forging Foreclosure Fairness for Communities P. Franklin Heaberlin, Prestonsburg By Ben Carter Judith B. Hoge, Louisville Bernadette Z. Leveridge, Jamestown Theodore T. Myre, Jr., Louisville 19 Defending Credit Card Collection Lawsuits Eileen M. O’Brien, Lexington By Loren VanDyke Wolff Richard M. Rawdon, Jr., Georgetown Sandra J. Reeves, Corbin E.P. Barlow Ropp, Glasgow 23 Consumer Financial Protection Bureau Activity R. Kelley Rosenbaum, Lexington in 2012 and Beyond Gerald R. Toner, Louisville By Jeffrey W. Kibbey Sadhna True, Lexington Michele M. Whittington, Frankfort Columns Publisher John D. Meyers 3 President’s Page By W. Douglas Myers Editor Frances Catron Cadle 7 YLD By Jackie Sue Wright Managing Editor 28 Shop Talk By Michael Losavio Shannon H. Roberts 30 Effective Legal Writing By Kristin J. Hazelwood Layout David Kaplan • [email protected] Items of Interest The Bench & Bar (ISSN-1521-6497) is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 2 Highlights from the 2012 Fall Swearing In KY 40601-1812. Periodicals Postage paid at 4 2013 Call for Nominations for Distinguished Service Awards Frankfort, KY and additional mailing offices. All manuscripts for publication should be 6 Kentucky’s Lawyer Leaders sent to the Managing Editor. Permission is 17 Kentucky Unemployment Bridge Program granted for reproduction with credit. Publication of any article or statement is not 27 Judicial Conduct Commission to be deemed an endorsement of the views expressed therein by the Kentucky Bar 32 Kentucky Bar Foundation Salutes All Fellows Association. 35 Order Amending Rules of Criminal Procedure, Rules of Subscription Price: $20 per year. Members subscription is included in annual dues and is Civil Procedure, and Family Court Rules of Procedure and Practice not less than 50% of the lowest subscription 46 Kentucky Bar News price paid by subscribers. For more informa- tion, call 502-564-3795. 53 KYLAP News

POSTMASTER 55 Who, What, When & Where Send address changes to: 61 CLE Bench & Bar Cover Photo by John S. Hockensmith. Inside graphics provided by iStockphoto.com. 514 West Main Street Editor’s Note: Several of Kentucky’s Lawyer Leaders Frankfort, KY 40601-1812 are featured on the cover; for more information, please see page 6.

Swearing-In: Congratulations to our newest members of the KBA! New attorneys received their oaths of office, Friday, October 19, in the courtroom for the Supreme Court of Kentucky in the state Capitol in Frankfort. The KBA hosted a reception in honor of our newest members, their families and friends at the Ky. Bar Center. A total of 276 new attorneys were recommended for admittance to the practice of law following the July 2012 bar examination.

Julia Taylor is joined for her swearing-in ceremony by her brother and KBA member Willis Taylor. Both Taylors are natives of Frankfort and currently reside in Louisville.

New attorneys prepare to enter the Supreme Court of Kentucky cham- bers for swearing-in ceremonies held in the state Capitol in Frankfort.

Andrew Leung, second from left, celebrates his new KBA membership with his mother, Mary Yeung, far left, father Anthony Leung and aunt Sabina Chan, all of Louisville, at the Kentucky Bar Center reception following swearing-in ceremonies.

From left, Wes and Cindy Napper of Taylorsville attend swearing-in ceremonies for Brittany Schott of Lexington along with Adam Schott, also of Lexington, and Rick Napper of Hanover, Ind.

Allison Hartley, far left, is introduced to the Court by her mother, New attorneys line the bench for swearing-in ceremonies held Marilyn Fowler Hartley, brother Christopher Hartley and sister-in-law October 19 in the Supreme Court of Kentucky chambers. Colleen Hartley, all of Louisville.

2 Bench & Bar November 2012 president_Nov12.qxd 11/13/12 2:10 PM Page 3

PRESIDENT’S PAGE

YOU ARE YOUR BROTHER’S — AND SISTER’S — KEEPER

Doug Myers

personally knew five lawyers who, in likely than the number two occupation it is critical to acknowledge the danger Ithe last several months, have in the study. A research study of 801 signals for depression when they occur. committed suicide. Three were friends lawyers in the state of Washington So what do we do about this? If you of mine. It is difficult to understand or found that 19 percent suffered from think you are depressed, you probably give meaning to even a single suicide, depression. are. Seek medical help. Depression is a much less five in such a short period of A quality of life surveyed by the health problem, not a character flaw. We time. North Carolina Bar Association in 1991 should neither be ashamed nor afraid to The statistics about lawyers’ revealed that almost 26 percent of the seek treatment. When treated medically, substance abuse, depression and suicide responding lawyers exhibited symptoms with counseling, and sometimes with rates are startling. The numbers speak of clinical depression, and almost 12 both, depression can usually be resolved for themselves: percent said that they had contemplated or successfully managed. When • 15 to 18 percent of lawyers will suicide at least once a month. untreated, it can kill you. have substance abuse problems as Women lawyers are not immune. In Lanny Burman, executive director of compared with 10 percent of the fact, women attempt suicide at least the American Association of general population as a whole. twice as often as men. Men, however, Suicidology, listed these warnings signs • The latest estimates are that 20 are “successful” four times more than of impending suicide: percent of lawyers who have women. practiced one to 20 years are Substance abusers are 10 times more • Thoughts of suicide. alcoholic, and 25 percent of lawyers likely to commit suicide than the • Increased or excessive use of drugs who have practiced 20 years or general population. or alcohol. more are alcoholic. Why are lawyers more prone than • Feelings of hopelessness. • More than one-third of lawyers say others to suicide? Psychologist Lynn • Feeling a loss of purpose. that they are dissatisfied and would Johnson identifies two personality traits • Feeling trapped. choose another profession if they of many lawyers that may contribute, • Withdrawing from usual activities could. perfectionism and pessimism. and from loved ones. • Lawyers have the highest rates of Perfectionism is what drives us, • Unusual behavior, including depression and suicide among any whether it is to succeed or to avoid reckless behavior. profession. failure. Unfortunately, perfectionists are • A dramatic mood change. A 1997 Canadian study shows that more vulnerable to anxiety and suicide is the third leading cause of depression, harder to treat, and more death among lawyers. Only cancer and likely to commit suicide when things KBA 2013 heart problems rank higher. The suicide are going wrong. rate for lawyers as ascertained in this Pessimism helps us to excel. It Annual Convention study is 69 deaths per 100,000 causes our skepticism in dealing with population, nearly six times the suicide our clients, witnesses, opposing counsel, June 19-21 rate for the general population. and judges. We learn to anticipate and Statistically, most at risk are lawyers prepare for the worst of everything that and judges aged 48 to 65. can go wrong. This leads to stress and Galt House Hotel A study at Johns Hopkins University makes us more vulnerable to found that of 104 occupations studied, depression. Louisville, Ky lawyers were the most likely to suffer Lawyers are exposed to extreme depression, and were 3.6 times more stress. There is such pressure on us that November 2012 Bench & Bar 3 president_Nov12.qxd 11/5/12 2:57 PM Page 4

• Signs of anxiety including panic, Our Kentucky Lawyers Assistance • If you do not know, ask if the insomnia, and agitation. Program, headed by Yvette Hourigan, person is feeling suicidal. It will • Excessive anger or rage. deals not only with alcohol and give them permission to talk about substance abuse, but with depression. In it. We must each be on the watch for fact, KYLAP has now established a • If the person is feeling suicidal, ask these warning signs, in ourselves or in depression support program in if he/she has a plan. This will give our peers. Louisville, see page 53 for more details you an indication of how No lawyer in Kentucky is unfamiliar on the program. immediate the crisis may be. Get a with lawyers’ suicide, its awful We must take on a responsibility for commitment from the person that consequences and the devastating our peers. he/she will not take any action until effects on those left behind. We each A threat of suicide is very serious. he/she has talked with you. If there need to watch for the opportunity to Every threat is a call for help. Please is a plan and a threat of immediate identify and refer a potentially suicidal take it seriously. It is better to be action, do not leave him/her alone. person who may otherwise remain somewhat embarrassed than to be If you have to, take him/her to the undetected and unassisted. remorseful because you failed to emergency room of the nearest We all know that as professionals respond to the “call” of a friend. Here hospital. we are not immune to personal crises, are some suggestions on how to help: • Encourage the individual to seek mental health issues, or substance professional help and even offer to abuse. As lawyers, we are very good • Listen. Suicidal people feel isolated, help him/her make the first call. at referring other troubled people for disconnected and unimportant. It is help. We need to do the same for critical to be non-judgmental and You are your brother’s — and sister’s ourselves. empathic. — keeper.

Kentucky Bar Association 2013 Distinguished Service Awards Call for Nominations

The Kentucky Bar Association is accepting nominations for 2013 Distinguished Judge and Lawyer, Donated Legal Services and Bruce K. Davis Bar Service Awards. Nominations must be received by Dec. 28, 2012. If you are aware of a Kentucky judge or lawyer who has provided exceptional service in these areas, please call (502) 564-3795 to request a nominating form or download it from our website at www.kybar.org by choosing “Inside KBA” and clicking on “Public Relations – Distinguished Service Awards.”

Distinguished Judge Award Distinguished Lawyer Award Awards may be given to any judge or lawyer who has distinguished himself or herself through a contribution of outstanding service to the legal profession. The selection process places special emphasis upon community, civic and/or charitable service, which brings honor to the profession.

Donated Legal Services Award Nominees for the Donated Legal Services Award must be members in good standing with the KBA and currently involved in pro bono work. The selection process places special emphasis on the nature of the legal services contributed and the amount of time involved in the provision of free legal services.

Bruce K. Davis Bar Service Award Many lawyers take time from their practices to provide personal, professional and financial support to the KBA. This award expresses the appreciation and respect for such dedicated professional service. All members of the KBA are eligible in any given year except for current officers and members of the Board of Governors.

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LAWYERS AS LEADERS, FROM THE CAPITOL TO MAIN STREET By John D. Meyers member of the KBA, graciously early Kentucky pioneers met to form KBA Executive Director accepted our invitation to be included in our first constitution, Col. George the photo, but regrettably could not Nicholas, the chief draftsman of the wice each year, the Kentucky attend. His photo is pictured on the document, and convention clerk Bar Association is honored to lower right of this page. Additionally, Thomas Todd both served as attorneys, T host swearing-in ceremonies for Senate President Williams has since while the convention president, Samuel our new members in the state Capitol been appointed judge for the 40th Cir- McDowell, was a judge of the first dis- in Frankfort, one of cuit which includes Clinton, Cumberland trict court in Kentucky. the most beautiful and and Monroe counties.) Upon this foundation, attorneys treasured centers of These individuals collectively repre- throughout Kentucky — from Maysville government in the sent the power our profession plays in to Murray, from Pikeville to Paducah United States. While forming public policy, overseeing our and all points beyond — have continued there, it to build and contribute to is never the communities in which lost on they live. Despite the neg- John D. Meyers the KBA ative media the minority leadership, or the KBA of poor-performing attor- staff assisting with the neys attract, the great event, the many individu- majority of attorneys go als committed to beyond their own immedi- strengthening the Com- ate practice to accept monwealth who walked responsibilities central to those halls before us. the operation of our most As last spring’s swear- cherished organizations, ing-in ceremony came to a including hospital, church, close, Bruce K. Davis, the and school boards, city long-time executive direc- commissions and fiscal tor and 2010-2011 courts, advisory agencies president of this associa- and non-profit organiza- tion, paused to note the tions dedicated to contributions of some of important national, state his favorite Kentucky and local concerns. While attorneys from times past, some positions may be as well as the number of paid, many other services attorneys who currently are offered without serve as constitutional charge. Additionally, some officers and presiding 16.5 percent of attorneys officers of both chambers report pro bono hours on of the legislature. An idea their dues statement, and then grew among the more than 830 attorneys KBA’s Executive Com- volunteer 50 hours or mittee that we should more each year to provide recognize these individu- free serv- als, as well as the many leadership roles judicial, executive and legislative ices to indigent clients. that attorneys serve throughout branches, and representing the citizens As executive direc- Kentucky. who entrust them with responsibilities tor, I join the rest of the On this issue of the Bench & Bar, we necessary for our governance. This fol- KBA Executive Com- are proud to present Chief Justice John lows a long tradition attorneys have mittee and Board of D. Minton, Jr., along with Gov. Steven played in the formation of our country’s Governors in saluting L. Beshear, Lt. Gov. Jerry Abramson, central government and the establish- the many attorneys Senate President David L. Williams, ment of our own Commonwealth. who accept the duty Todd Hollenbach House Speaker Gregory D. Stumbo, Of the 55 members of the Constitu- and challenge to serve our entire Com- Attorney General Jack Conway, and Sec- tional Convention in Philadelphia in monwealth in immeasurable ways, from retary of State Alison Lundergan Grimes. 1787, 34 are believed to have at least the halls of the Capitol to Main Streets (State Treasurer Todd Hollenbach, also a made a study of the law. In 1792, as near and far. November 2012 6 Bench & Bar By Jackie Sue Wright, Chair, KBA Young Lawyers Division

he Young Lawyers Division is graduates bring a fresh and informed mission of the KBA Young Lawyers Texcited to announce a newly created perspective to their communities and Division? We feel that our members can scholarship for a member of the YLD to companies, serving as important both contribute and benefit from the participate in Leadership Kentucky, a participants in the unified effort to program. While we can offer insight state-wide program designed to identify shape Kentucky’s future. into many of the program sessions and and develop leaders and resources to To summarize the history of the critical issues, it is important for us to create a better and greater Kentucky. program, in the 70s and 80s, local be well versed in topics other than those You may already be familiar with local leadership programs were emerging in which we work on a daily basis. leadership programs that bring together throughout Kentucky. Young involved Ultimately, we feel this could be a great multi-disciplinary professionals for day leaders across the state acknowledged program to develop future leadership long seminars and tours in your the need to build understanding among within the Young Lawyers Division. In communities. Leadership Kentucky Kentucky’s regions. They imagined addition, we are impressed by the differs in that participants are chosen what could happen if Kentucky’s best program’s commitment and concern for throughout the Commonwealth and the and brightest were brought together to diversity in the program. We have made program sessions move around the learn firsthand about the complicated great efforts to include geographical various regions of the state, in an effort issues that impact the state. A delegation diversity in all we do at the YLD and to educate and inform the class of sought out visionary leader, Wilson W. Leadership Kentucky has that same critical issues facing each diverse region Wyatt, Sr., an attorney who served as mission. In fact, there are 21 counties and Kentucky as a whole through study, Mayor of Louisville, and as Lt. from which there has never been a class discussion and travel experiences. Governor of Kentucky as well as member. Those counties include: Bath, Now in it’s 28th year of existence, numerous national posts, for guidance Bracken, Carter, Casey, Clay, Clinton, Leadership Kentucky is a non-profit in the establishment of a statewide Crittenden, Edmonson, Estill, Fleming, educational organization that brings leadership development program. He Gallatin, Grant, Larue, Leslie, together 55-60 of the Commonwealth’s agreed to serve as the inaugural Livingston, Magoffin, McCreary, gifted and motivated current and future chairman and recruited a group of state Metcalfe, Nicholas, Robertson and leaders to examine the major issues leaders to join him in the establishment Wolfe. Through our extensive critical to the well-being of the of an organization to address the critical membership, we hope to be in a Commonwealth of Kentucky and it’s need of developing Kentucky leaders position to help the diversity initiative citizens. The program year consists of for the future. Many state leaders had of Leadership Kentucky while building seven sessions that delve into topics already been discussing the lack of leadership within our own organization. such as Kentucky history, leadership that reached into the four Applications for the Leadership demographics, public policy, corners of the state. The Kentucky Kentucky Class of 2013 will be open in government, corrections, military, Chamber of Commerce gave its full December 2012 through the Feb. 15, education, economic development, arts support and provided office space and 2013, deadline. The online application & tourism, environment, energy and staffing. The James Graham Brown considers prior leadership program health and human services. Leadership Foundation granted the organization participation, education, career, Kentucky provides a forum to interact funding to help launch the program. community service, responses to essay with key professionals, state officials To date, Leadership Kentucky has questions and recommendations. The and business leaders and to exchange 1,265 graduates who live and work in application process will be on their ideas and offer potential solutions to every district of the state. In addition, website at www.leadershipky.org; local, regional and statewide issues. The Leadership Kentucky has helped however, you will need to contact me goal is to prepare the participants to establish more than 50 community and before submitting the application at take an active role in advancing the professional leadership development (606) 564-5585 or at jwright@ state for the common good. By fostering programs throughout Kentucky. fwweattorneys.net if you are interested understanding of how the state’s issues Leadership Kentucky is making a in the KBA YLD Leadership Kentucky are interconnected, and by forging new difference throughout the Scholarship. We hope you will consider relationships among community and commonwealth. this program as your next professional regional leaders, Leadership Kentucky How does this program fit into the adventure across Kentucky! November 2012 Bench & Bar 7 job_target.qxd 10/29/12 10:16 AM Page 1

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LEGAL TOOLS FOR A TOUGH ECONOMY

Loss Mitigation After the Housing Crash: Navigating through the Making Home Affordable Program By Melissa J. Whalen

n October 2008, in response to the collapse of the housing market, Con- Igress passed the Emergency Economic Stabilization Act (“EESA”),1 which was designed to stabilize the country’s banks and stave off the economic free fall the country was in. The Act authorized the Treasury Department to enact the Mak- ing Home Affordable Program.2 The Making Home Affordable Program cre- ated several loss mitigation options for borrowers, with the most well-known of the programs being the Home Afford- able Modification Program, or “HAMP.”3 Banks had always had programs to avoid foreclosure of mortgage loans, but until the EESA, each bank had its own requirements and loss mitigation options. The EESA offered a uniform set of eligibility requirements and resolu- tions, regardless of which bank held the loan. In connection with the Act, the While not all mortgage servicers are A recent innovation of HAMP was Department of the Treasury introduced participants in HAMP, most of the largest the division of the program into the Making Home Affordable Program banks are participants, as are many of the “HAMP Tier 1” and “HAMP Tier 2.” in February 2009. Participation in the smaller ones.6 This means that a vast “HAMP Tier 1” is the program most program is voluntary; in order to partici- number of homeowners facing foreclo- people are familiar with. In addition to pate, mortgage servicers4 were required sure are potentially eligible for a the requirements above, to qualify for a to execute a Servicer Participation modification under the HAMP program. HAMP Tier 1 modification, the bor- Agreement (“SPA”) on or before Oct. 3, Eligibility for a modification is con- rower must occupy the property as his 2010. A servicer participating in HAMP tingent on several factors. The or her principal residence.8 Also, the is required to solicit the loan for a poten- mortgage loan at issue must be a first mortgage may not have previously been tial HAMP modification prior to mortgage which originated on or before modified under HAMP. Finally, the bor- foreclosure, and to evaluate any applica- Jan. 1, 2009. The borrower must have a rower’s monthly mortgage payment, tion for a HAMP modification before documented “financial hardship,” including principal, interest, taxes, proceeding with sale. Federal National showing he or she does not have suffi- insurance, and association fees, must be Mortgage Association (“Fannie Mae”) cient liquid assets to make payments. greater than 31 percent of the bor- has been appointed the Program Admin- The property must be a one-to four-unit rower’s monthly gross income. istrator for the Making Home Affordable property and cannot be condemned. “HAMP Tier 2” is a newer creation. Program, and Federal National Mort- Also, the borrower must agree to have Unlike Tier 1, the property does not need gage Association (“Freddie Mac”) has an escrow account on the loan for taxes to be owner occupied. Rental properties been made the Compliance Agent.5 and insurance.7 may be eligible. A loan can also be con- November 2012 Bench & Bar 9 whalen.qxd 11/5/12 3:29 PM Page 10

sidered for a Tier 2 dence of income, and a Dodd-Frank been updated from time to time, and the modification even Certification.12 servicers are required to use the latest if the borrower Once the documentation is received, software in determining whether the loan previously was eligibility for modification is determined qualifies for a HAMP modification. How- denied a HAMP by the criteria set out by the Program. ever, the investor15 always has the right to Tier 1 modifica- Servicers must calculate the “Net Present decline the loan for a modification, even tion, and in some Value” (“NPV”) of the loan.13 This test if it qualifies for a modification under the situations, even determines whether the value of the loan guidelines. Acceptance of a modification when the borrower has defaulted on a will be greater to the investor if the loan always remains voluntary with the loan Tier 1 modification.9 is modified than if it is not. If the NPV investor.16 As stated earlier, the implementation result for a modification is greater than If the loan is approved for a modifica- of HAMP made the process of applying the result for no modification, the result tion, the borrower is offered a Trial for a loan modification relatively uni- is “positive” and a modification should Payment Plan (“TPP”), which is the first form. While prior to HAMP, every be offered. If the NPV with modification step in a two-step process. The borrower servicer had its own set of application is less than that with no modification, no is normally required to make payments forms and required documentation, now modification is required to be offered. under the new modified amount for most servicers are using the same The Making Home Affordable Pro- three months. If the borrower success- forms, provided by the Making Home gram offers the software to calculate the fully makes all three payments on time, Affordable Program. The program NPV for a particular loan to the the loan is approved for a permanent makes clear that in reviewing the loan servicers.14 The calculation takes into modification. If, however, the borrower for a potential modification, the servicer account multiple factors, including gross fails to make payments on time, the loan must review an “initial package,” which income, unpaid principal balance before is rejected for a permanent modification, contains a Request for Modification and after modification, principal and and the servicer is free to proceed with Assistance (“RMA”) form,10 a hardship interest payment and interest rate before foreclosure. affidavit,11 explaining the reason that and after modification, months past due, In the program’s beginnings, many monthly payments cannot be met, an borrower’s credit scores, and property borrowers were upset because they were IRS Form 4506-T or 4506T-EZ, evi- value, among others. The software has not offered a permanent modification despite having made all trial payments on time. The main reason for this occurrence was due to the early practice of approving trial plans based on oral representations of borrowers, before all documentation was received and reviewed.17 Therefore, while it originally appeared based on the borrower’s representations that the bor- rower would qualify for a modification, the final review indicated that the loan did not qualify for modification under HAMP. The HAMP directives now require all written documentation to be reviewed before a trial payment plan may be offered;18 therefore, this is no longer an issue. Many borrowers have been led to believe by news reports and internet postings that the HAMP program will pay down their principal balance, but this is not the case.19 The goal of the program is to bring the monthly pay- ments down to 31 percent of the 20 financially sound and borrower’s monthly gross income. stable insurance carrier to Servicers are given several methods to protect your business. accomplish this. First, the interest rate is reduced in increments of 0.125 percent, $BMM
 with a floor amount of 2 percent per PS
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XXXEBOJFMTIFBEDPN annum. If the loan is an adjustable rate or interest-only mortgage, the loan is November 2012 10 Bench & Bar whalen.qxd 11/5/12 3:29 PM Page 11

converted to a fixed rate loan.21 If after been referred to the Master Commis- agreement a near impossibility. Further, reduction of interest to the 2 percent sioner. However, it remains the case that the Jefferson County mediations are done rate, the payment amounts are still too there is no legal prohibition against the by the Master Commissioner’s office, at high, the term of the loan can be servicer proceeding to judgment when no charge to the parties. The 49th Judicial extended by up to 480 months from the an application has been received but not Circuit (including Allen and Simpson modification date. If the payments need yet approved. Counties) initiated its own mediation pro- to continue to be reduced to meet the 31 Several courts have initiated mediation gram in August 2010 that mirrored that of percent threshold, the servicer may pro- programs to encourage borrowers and Jefferson County.24 vide principal forbearance until the loan banks to work out alternatives to foreclo- Franklin County has also established is due or the borrower sells the property. sure. The first court to establish a its own mediation program, designated mediation program was Jefferson County, the Franklin County Foreclosure Diver- THE RESPONSE OF THE COURTS entitled the “Residential Foreclosure Con- sion Program.25 Under Franklin While the HAMP requirements made ciliation Program.”23 This program puts County’s program, plaintiffs in foreclo- the application process relatively uni- the impetus on borrowers to obtain a sure cases are required to submit an form, the process of implementing the mediation. Borrowers are required to sub- application for mediation to all borrow- program has not been without difficulty. mit a financial packet to the plaintiff and ers and titleholders with its complaint, The program was originally announced file a Certificate of Compliance with the and plaintiff’s counsel must certify this in 2009, and in the time since then, there court before a mediation is scheduled. has been done on the complaint. Plain- have been no less than 45 supplemental This program requires the borrowers to tiffs must also notify the court directives clarifying and revising take affirmative steps toward loss mitiga- appointed mediator of the complaint fil- requirements of the program. Borrowers, tion before the mediation, unlike those ing. Unlike the Jefferson County understandably, have been frustrated by programs in many other jurisdictions, program, mediations in Franklin County requirements being changed as they had where mediations are scheduled as soon are referred to a private mediator, who applications pending. Further, there were as borrowers request them. Often at charges the parties for the mediation. often lengthy delays in review of appli- mediations in other states, the plaintiffs While other judicial circuits do not cations, caused by the servicers’ lack any financial information from bor- have official mediation programs in difficulties in keeping sufficient numbers rowers, making reaching any sort of place, courts have been more likely to of trained employees to meet the demands of the large number of borrow- ers applying for loss mitigation. A concern of borrowers and of the courts has been the “dual tract” system used in HAMP. That is, the servicer will simultaneously review loss mitigation applications and proceed with foreclo- sure litigation. Under the HAMP guidelines, a servicer cannot proceed with a foreclosure sale while the loan is being reviewed for modification. How- ever, if the loan is already in foreclosure when a modification application is received, the servicer may continue with the foreclosure up to the point of sale.22 Although the program allows for judgment to be entered while a modifi- cation application is pending, many judges have expressed reluctance to rule on a motion for judgment if no final decision has been made on the modifi- cation. Most judges have refrained from denial of a motion for judgment, but instead will continue the matter if the borrower appears in court and states he has a loan application under review. The reluctance on the part of the courts is understandable, given the additional costs that accrue once the matter has November 2012 Bench & Bar 11 whalen.qxd 11/8/12 9:46 AM Page 12

refer foreclosure is no private right of action under 26 ENDNOTES matters to media- HAMP. Courts have further found that 1. 12 U.S.C. 5201 et seq. tion than borrowers are neither parties nor 2. The Program is authorized under 12 previously. Some intended third-party beneficiaries of the U.S.C. 5219 et seq. For a full expla- judges prefer to Servicer Participation Agreement, and nation of the program requirements, personally mediate therefore borrowers have no standing to see the Making Home Affordable the matter, while sue for the servicers’ alleged violations Program Handbook for Servicers of others have of the agreement.27 Non-GSE Mortgages, version 4.0, referred the case to private mediators. Some borrowers have tried to get effective 08/17/12, available online However, when preparing to mediate, it around the court rulings by arguing that at https://www.hmpadmin.com/ is important to realize that mediations in they are bringing common law claims, portal/programs/docs/hamp_ foreclosure have many differences from but most courts have been unconvinced. servicer/mhahandbook_40.pdf. typical mediations. To begin with, in a Courts have held that borrowers do not “Non-GSE Mortgages” are mort- foreclosure case, the suit is on liquidated have a claim for promissory or equitable gages that are not owned by a damages. Second, in virtually all fore- estoppel based on HAMP negotia- government-sponsored enterprise. closure cases referred to mediation, there tions.28 Nor have borrowers been found Mortgage GSE’s include such enti- is no valid defense to the case that will to have a claim for breach of good faith ties as Fannie Mae and Freddie prohibit judgment for the plaintiff. and fair dealing.29 The courts have rea- Mac, which have their own HAMP Therefore, the parties are in very differ- soned that modification is purely guidelines. ent bargaining positions than in most discretionary with the lender, so there is 3. Others include the Home Afford- mediation situations. no right to a modification, even if the able Unemployment Program Also, in a normal foreclosure action, borrower qualifies.30 The same rationale (“UP”), which offers forbearance having the parties meet face to face adds has been used by the courts whether in agreements to individuals who are no benefit to the mediation. The plaintiff the context of a suit by borrower or an unemployed; the Home Affordable normally has specific programs set up, affirmative defense raised in the fore- Foreclosure Alternatives Program through the Making Home Affordable closure.31 (“HAFA”), which offers deeds in Program or internally, each with its own However, some courts have left open lieu of foreclosure and short sales; criteria. Either the borrowers meet the the door to consider the servicer’s con- and the Second Lien Modification criteria or they do not. Having a bank duct in reviewing the loan for Program (“2MP”), which offers representative present in the room makes modification, stating that the failure to modification of second mortgages. no difference in settlement. Further, follow program guidelines could be 4. Mortgage servicers, which may or banks normally are located out of state, used as some, but not conclusive, evi- may not be the actual holders of the many times across the country, making dence to support a claim of violation of mortgage note, perform various personal appearance costly. Understand- state law claims.32 There have also been services in relation to the mortgage ing this, most courts allow the bank’s some decisions, which appear to be con- loan, such as collecting and posting representative to appear by phone, with fined to the Northeast, where the courts its attorney alone in physical attendance. have ordered the servicer to comply with a HAMP regulation.33 However, Melissa Whalen LITIGATION UNDER HAMP these decisions appear to be the excep- is an associate at Borrowers (and some counsel) mis- tion, not the rule. the Cincinnati takenly believe that if a servicer is a office of Manley participant in the HAMP program, it CONCLUSION Deas Kochalski, must offer a HAMP modification to bor- The effects of the housing crash heading the rowers. Since the implementation of the will be felt for years to come. The pro- firm’s Kentucky group. She has program, many borrowers have brought grams created by the federal more than 13 counterclaims against lenders for failure government offer many options for years experience in the area of credi- to comply with HAMP requirements, and homeowners assistance. Attorneys tor's rights. She has represented many more have raised the servicer’s should become familiar with the many of the largest mortgage lenders alleged misconduct during HAMP requirements of these programs, as in areas encompassing residential review as a defense to foreclosure. While they can assist their clients in navigat- and commercial foreclosure, bank- there has not yet been an appellate deci- ing through the often confusing ruptcy, loss mitigation and real estate sion in Kentucky on the matter, the vast requirements and help their clients litigation. She received her B.A., cum weight of authority has found that there keep their home. However, the effect laude, from Centre College and is a can be no claim, either counterclaim or on litigation should be minimal, as the 1997 graduate magna cum laude of affirmative defense, under HAMP. requirements set out by HAMP do not the Northern Kentucky University Since the implementation of the pro- legally bind the servicers, and create Salmon P. Chase College of Law. gram, courts have uniformly held there no new claims or defenses. November 2012 12 Bench & Bar whalen.qxd 11/5/12 3:29 PM Page 13

payments, negotiating payment See Supplemental Directive 09-07, Supp. 2d 304 (D. Mass. 2010); agreements for loans in default, and found at Edwards v. Aurora Loan Services, referring loans to foreclosure, https://www.hmpadmin.com/ 791 F. Supp.2d 144 (D. D.C. 2011). depending on the terms of their portal/programs/docs/hamp_ 28. See, e.g., Cade v. BAC Home Loans servicing agreement with the entity servicer/sd0907.pdf, which has Servicing, LP, supra; Cleveland v. holding the debt. It is important to been superceded by the latest Aurora Loan Services, LLC, 2011 remember that participation in Handbook. WL 2020565 (N.D. Cal. May 24, HAMP rests with the servicer, not 18. Handbook, sec. 4, pp. 77-78. 2011); Hart v. Countrywide Home the holder of the debt. 19. Handbook, sec. 6.3.5, p. 96. Loans, Inc., supra. 5. Making Home Affordable Program 20. This threshold is for Tier 1 modifi- 29. Lucia v. Wells Fargo Bank, N.A., Handbook (hereafter “Handbook”), cations. Under a Tier 2 supra. supra, at page 12. modification, borrower’s monthly 30. Id. See also Sankey v. Aurora Loan 6. A list of participating servicers can mortgage payment to income ratio Services, LLC, 757 F. Supp. 2d 57 be found at http://www.making (debt to income ratio or DTI) must (D. Mass. 2010); Williams v. Geith- homeaffordable.gov/get- be between 25 percent and 42 per- ner, 2009 WL 3757380 (D. Minn. assistance/contact-mortgage/ cent. Handbook, sec. 6.1, p. 90. Nov. 9, 2009). Pages/default.aspx. 21. Handbook, sec. 6.3.1.2, pp. 93-94. 31. See CitiMortgage v. Carpenter, Handbook, sec. 1.1.1, p. 57. See Handbook, sec. 3, pp. 75-77. 2012 Ohio 1428, 2012 WL 7. 22. th 8. There are now exceptions for those 23. Order for the 30 Judicial Circuit, 1079807 (Oh. App. 2d Dist. Mar. displaced due to job transfer or mil- dated March 30, 2009, and signed 30, 2012) (“An affirmative defense, itary service. See Handbook, sec. by Judges Shake, Chauvin, Gibson, like a cause of action, is a claim of 1.1.2, p. 58. and Cowan. right. In a cause of action, the th 9. Handbook, sec. 1.1.3, pages 58-59. 24. Administrative Order for the 49 claim of right is a claim to relief. In 10. Available online at Judicial Circuit, dated Aug. 16, an affirmative defense, the claim of http://www.HMPadmin.com. 2010, and signed by Judge Crocker. right is the avoidance of liability 11. While called a “hardship affidavit,” 25. Franklin Circuit Order in re: under another’s claim to relief.”). the statement is not required to be Franklin County Foreclosure Diver- 32. Boyd v. U.S. Bank, supra (state con- notarized. Handbook, sec. 4.1.1.1, sion Program, Miscellaneous Order sumer protection act claim); Speleos p. 78. 2011-71, entered March 25, 2011, v. BAC Home Loans Servicing, LP, 12. Under the Dodd-Frank Wall Street and signed by Judges Shepherd and supra (breach of duty claim). Reform and Consumer Protection Wingate. 33. Aames Funding Corp. v. Houston, Act, all applicants for a HAMP 26. See, e.g., Boyd v. U.S. Bank, 787 F. 85 A.D.3d 1070, 926 N.Y.S.2d 639 modification must certify that they Supp.2d 747 (N.D. Ill. 2011);Cade (N.Y. App. Div. 2011) (reversed have not been convicted of felony v. BAC Home Loans Servicing, LP, trial court order overruling motin to larceny, theft, fraud, or forgery, 2011 WL 2470733 (S.D. Tx. June stay sale while the loan was money laundering, or tax evasion, 20, 2011); Hart v. Countrywide reviewed for HAMP); Wells Fargo in connection with a mortgage or Home Loans, Inc., 735 F. Supp. 2d Bank, N.A. v. Meyers, 30 Misc. 3d real estate transaction in the past 10 741 (E.D. Mich. 2010). 697, 913 N.Y.S.2d 500 (N.Y. Sup. years. Handbook, sec. 1.7, p. 30. 27. See, e.g., Lucia v. Wells Fargo Ct. 2010) (trial court ordered plain- 13. Handbook, sec. 7, pp. 102-106. Bank, N.A., 798 F. Supp.2d 1059 tiff to accept a final modification 14. The Making Home Affordable (N.D. Cal. 2011); Speleos v. BAC based on the original terms in the Program has set up a calculator Home Loans Servicing, LP, 755 F. trial plan stage). with which borrowers can check their NPV against that given to them by the servicer. It can be accessed at http://www.check- mynpv.com. See Handbook, sec. 2.3.5, p. 74. 15. That is, the entity with rights of payment under the loan. 16. Handbook, sec. 1.1, 1.3, pp. 20-21. Additionally, the mortgage insurer, if any, must approve a modification before it can be effective. Hand- book, sec. 9.3.10, p. 114. 17. This process was originally sanc- tioned by the HAMP program.

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By Ben Carter were creating fraudulent affidavits to and our efforts will be worthwhile. more efficiently pursue foreclosure.2 The Center for Responsible Lending entucky homeowners are strug- Systemic, persistent unemployment and has estimated that over 800,000 Ken- gling. Kentucky courts are a weak federal loan modification pro- tucky homeowners have lost an average Kstruggling to respond to the fore- gram continue to challenge our of $2,600 in home equity simply because closure crisis, as well, and it’s time for a homeowners.3 of a phenomena known as “the spillover new approach. Though it may not seem possible effect”: any property within 1/8 of a mile One in four Kentucky homeowners given the unprecedented number of of a foreclosed home loses between 1-2 owe more on their houses than the foreclosures over the last eight years, percent of its value.4 When multiple fore- houses are worth, and one in 10 is more we are still in the middle (rather than closures occur in a neighborhood, the than 30 days behind on their house pay- nearing the end) of the foreclosure cri- compounded impact is devastating. In ment.1 The number of foreclosure sis. It is not too late, as individual all, the CRL estimates that Kentucky filings is on the rise after a temporary attorneys, as judges, and as a bar associ- homeowners living near a foreclosed lull following the robosigning scandal in ation, to invest time and resources to home have lost 2.2 billion dollars in 2010-11 during which the nation address this problem. The foreclosure property value since 2009. We don’t learned that large financial institutions crisis is not going away any time soon need to lose another 2.2 billion in the November 2012 Bench & Bar 15 carter.qxd 11/8/12 9:44 AM Page 16

next three years.5 would enter 3,560 judgments in Jeffer- They are likely already trying to Anything that son County, it estimated that only 2,100 work with their servicer who tells the Kentucky attor- of those judgments would actually pro- homeowner, “Don’t worry about the neys and courts ceed to sale. Complaint—we’re working with you. do to ensure a fair, Again, my thesis is that most foreclo- There’s no reason to file an Answer.” transparent, and effi- sures are unnecessary. This thesis’s The stakes are enormously high for both cient foreclosure process will corollary states that any delay experi- sides and yet we know that nationwide yield dividends for years to come. enced in court is unnecessary because fewer than 20 percent of homeowners As an advocate for homeowners and the foreclosure itself is likely unneces- facing foreclosure receive legal assis- the neighborhoods devastated by the sary. Instead of focusing on tance. Based on personal observation, I fallout from subprime lending, my pri- streamlining the mechanical foreclosure can say the number is considerably mary concern is preventing additional process, all interested parties should lower than 20 percent in Kentucky. unnecessary foreclosures from occur- instead examine ways to ensure that all We know that our adversarial system ring. My guiding thesis for the last four sides 1) have access to legal counsel depends upon both sides to a contro- years—first as an attorney for the Legal and 2) explore the many alternatives to versy enjoying zealous advocacy. Yet, Aid Society in Louisville, and now as a foreclosure prior to burdening the Court our current system frequently does not consultant for the Network Center for system with foreclosure filings. Once provide advocacy for homeowners fac- Community Change—has been that the unnecessary foreclosures have been ing foreclosure. most foreclosures are unnecessary. In a culled, the remainder can be efficiently Foreclosure is also a sizable portion vast majority of foreclosure proceedings administered because all that will of the circuit courts’ caseload. In Jeffer- all parties (including affected neighbors remain are those for which a judgment son County, foreclosures comprise 40 and local governments) will benefit— and auction is truly the best option. percent of all civil litigation.8 I under- financially and socially—from a Any process adopted should ensure stand that percentage is higher in rural resolution outside of a judgment and that both the foreclosing plaintiff and counties. Foreclosure is different foreclosure auction. There are so many the homeowner defendant have explored enough and sizable enough to deserve alternatives to foreclosure that will save in good faith each of the many alterna- unique treatment, especially in light of everyone time and money: loan modifi- tives to foreclosure before seeking a how much each side stands to lose at a cations, forbearance agreements, judgment and order of sale. foreclosure auction and how much our deeds-in-lieu of foreclosure, short sales, communities stand to lose when addi- bankruptcies, reverse mortgages, refi- A better foreclosure process should tional housing stock is foreclosed upon nancing, reinstatements. The Mortgage incorporate three elements: unnecessarily. Bankers Association estimated in 2008 1) increased notice to the home- The unique nature of foreclosure that each foreclosure costs the foreclos- owner with an efficient referral to requires better notice and a system for ing plaintiff (its members)—on counseling and advocacy; referring homeowners to the advocates average—$50,000.6 With losses this 2) a training program for private they need. large on the “winning” side, a huge attorneys who would like to coun- opportunity exists for both sides to sel and advise homeowners facing Ben Carter repre- negotiate a more mutually beneficial foreclosure; and, sents consumers resolution to the default. 3) a judicial process that ensures and plaintiffs in That many foreclosures are unneces- the parties have considered all of Louisville. He sary and unnecessarily burden the court the alternatives to foreclosure prior also works for system is demonstrated by the experi- to investing significant time and the Network Cen- ence in Jefferson County. In 2010, 5,299 energy litigating the matter in court. ter for sales were scheduled. Of those, only Foreclosure litigation is different Community 2,599 properties were actually sold at a than any other litigation that occurs in Change, advising foreclosure auction. 2,700 cases that had circuit court. Foreclosing plaintiffs, the nonprofit on issues surrounding foreclosure and foreclosure’s ugly proceeded to judgment (never mind the even when they “win,” lose $50,000. cousin — vacant and abandoned thousands that were filed but resolved Meanwhile, unlike almost every other properties. When he’s not working, before judgment) never went to sale.7 defendant in circuit courts, homeowners he’s watching too much MSNBC and By investing time to explore mutually facing foreclosure are completely clue- using social media to argue in favor beneficial alternatives on the front end less. Many have never been sued before, of the movie Sneakers, the use of the of the foreclosure process, many of the never faced the loss of their homes serial comma, and Axel Foley as a unnecessary foreclosures can be elimi- before, and have never before faced the good role model for young people. nated through loss mitigation, short possibility of a deficiency judgment that Follow him on Twitter at sales, deeds-in-lieu of foreclosure, or will haunt them for years and eventually @notbencarter and on the web at bankruptcy. In 2011, while the Master force them into bankruptcy. http://bencarterlaw.com. Commissioner anticipated that the Court They have no idea what to do.

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Better notice is a linchpin for ensuring that homeowners find the counselors and advocates they need. When the Jefferson County Circuit Court created the Foreclo- sure Conciliation Project, the first change was to create a full-color notice to accompany each complaint and service of summons in any foreclosure action. The notice provided a simple message con- veyed in a timely and credible way from Kentucky Unemployment Bridge Program • Maximum amount of mortgage liens Louisville’s most recognizable public fig- he Kentucky Unemployment on the property cannot exceed ure, Mayor Jerry Abramson. When a Bridge Program (UBP) will pro- $275,000. homeowner called the hotline number in Tvide up to $25,000 in the form of • Maximum of two liens permitted on the notice, they received a referral to a a forgivable loan to homeowners who the property. housing counseling agency and the Legal have experienced a job loss or reduc- • Applicant(s) must demonstrate a need Aid Society. A subsequent dramatic tion in income due to changing for assistance. increase in the number of calls to the economic conditions, through no fault • Maximum liquid reserves are six foreclosure hotline indicates that home- of their own, and can demonstrate a months principal, interest, taxes, and owners act when they receive a simple need for assistance. The UBP is not for insurance (excluding retirement funds). message from a credible source. job or income loss due to divorce, • Applicants must sign a hardship cer- Once a homeowner contacts a hot- death, or disability. The maximum tification acknowledging the line, the operator needs to provide the amount of assistance is $25,000 or 12 reduction in income due to no fault homeowner with the names of local months, whichever occurs first. Of the of their own. advocates ready to counsel and defend $25,000, the maximum amount that • Mortgage servicing company must them. To create a foreclosure process may be used for reinstatement, all have agreed to participate in the pro- that works for everyone, we need to related fees and payments to bring the gram. encourage and support the training of loan(s) current, is $12,500. Other qualifications apply. For more private attorneys who want to receive Applicants must meet the following information, visit www.protectmy referrals and represent homeowners fac- guidelines. kyhome.org or call (866) 830-7868. ing foreclosure. Last fall, I traveled the state with the Kentucky Bar Associa- many alternatives to foreclosure. appropriate and adequate customer serv- tion’s Kentucky Law Update. I devoted Appointing active, neutral arbiters ice departments. They are unable to the first 10 minutes of my hour-long (either mediators or Master Commis- communicate credibly or coherently presentation explaining to private attor- sioners) who can report to the Court with struggling homeowners. This is not neys how they can make a little bit of regarding the progress the parties are the case with local banks or the Ken- money representing homeowners facing making and the status of the case is an tucky Housing Corporation. Kentucky foreclosure. Kentucky’s Legal Aid effective option. Earlier this year, homeowners who are forced to deal offices are, as always, underfunded and Franklin Circuit Court adopted a fore- with Bank of America, Wells Fargo, unable to meet the huge demand for closure mediation program modeled Citimortgage, Vericrest, Litton Loan advocacy on behalf of homeowners fac- after the national best practices of fore- Servicing, Ocwen, Chase (and so on) ing foreclosure. Resources for housing closure mediation. The Franklin Circuit will receive one story one day and a dif- counseling are drying up so there will Court’s program immediately refers ferent story from a different person the be a need for the private bar to step up. each foreclosure filing to mediation and next. The servicers will lose paperwork, In July of 2008, Chief Judge Bell of places a stay on the case until the Plain- sit on loan modification applications for Maryland’s Court of Appeals (Mary- tiff moves for the stay to be lifted. months, fail to extend loan modifica- land’s highest court), wrote a letter to When examining a motion to lift the tions to qualifying homeowners, and every attorney in his state and encour- stay, the Court will examine what alter- continue pursuing foreclosure even aged them to get trained to defend natives to foreclosure have been when the loan is in the process of being foreclosures at either a reduced rate or considered and the equity of allowing modified. pro bono. Since then, more than 700 the foreclosure to proceed. This novel Further complicating the arrangement Maryland attorneys have received fore- system is worthy of examination and is the common practice in many high- closure defense training. A similar application elsewhere. volume collection firms of hiring “local call-to-action and our attorneys will In my experience, much of the frus- counsel” to appear on matters in rural respond as admirably as Maryland’s tration and delay in resolving a circuits. These “local counsel” do not attorneys. mortgage default arises from the reluc- appear on the case’s pleadings and often Finally, the process must require both tance or inability of the country’s largest know nothing about the actual status of parties to explore in good faith all of the loan servicing companies to build the case; they cannot contact their client

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(the servicers) well as an overall decline in an affected dinary time, talent, and resources in the and are simply property’s value. However, I’m not lending spree that caused our current there to pursue a exclusively concerned about the prop- crisis; they devised all manner of cre- default or sum- erty being foreclosed on. I’m concerned ative loan products to place people in mary judgment. about the loss in equity around the houses. Now, they need to apply that When a homeowner neighborhood and across the state. For same energy and creativity to the loss shows up pro se to a court hearing, they most middle class families, their home mitigation effort. Until they do, we can- cannot substantively speak with the are their most valuable asset. Each fore- not expect to begin to recover. Until “local counsel” because the “local coun- closure that occurs erodes the value of they do, Kentucky’s attorneys and sel” knows nothing about the case. those home nearby. courts must protect our communities by Judicial oversight of the loss mitiga- Both lenders and homeowners will ensuring that all parties enjoy legal tion process is crucial to ensure that experience less net loss by rigorously counsel and explore in good faith all of both parties are exploring alternatives in exploring alternatives to foreclosure the many alternatives to foreclosure as a good faith. The government has first before both sides waste time and way of protecting our communities. invested heavily in creating programs money on litigation. The best way to like the Home Affordable Modification prevent unnecessary foreclosures, 9 ENDNOTES Program and the Unemployment reduce delay in the foreclosure process, 1. Ellis, Ronnie, “Foreclosures in Bridge Program.10 The greater oversight ensure good faith loss mitigation, and State Number 20,000 Annually,” will ensure that the promise of those preserve what’s left of our neighbor- Richmond Register, Aug. 28, 2012. programs is fulfilled by ensuring that hoods’ housing values is to implement a 2. “Foreclosures (2012 Robosigning plaintiffs comply with these programs’ program that involves better notice to and Mortgage Servicing Settle- requirements. homeowners, a referral to trained fore- ment),” New York Times, April 2, Both banks and homeowners share closure defense attorneys, and judicial 2012. some common goals for the foreclosure oversight of the loss mitigation process 3. “GAO Report Finds Room for process in Kentucky. Both sides are through mandatory foreclosure media- Improvement For Foreclosure Miti- concerned about increased personnel tion. gation Programs,” NCSHA N.P., 03 costs, legal fees, and loss of capital, as Our nation’s banks deployed extraor- July 2012, Web 27 Sept. 2012 http://www.ncsha.ord/. 4. “Soaring Spillover: Accelerating Foreclosures to Cost Neighbors Forensic Psychiatry PLLC $502 Billion in 2009 Alone; 69.5 Million Home Lose $7,200 on Licensed to practice medicine in Ohio, West Average,” Ctr. for Responsible Virginia, Kentucky and Pennsylvania. Lending, May 2009, Web 27 Sept. 2012 http://responsiblelending.org. 919 Sixth Ave. 5. Id. Huntington WV 25701 6. “FORECLOSURE STATISTICS,” Office: 304-781-0228 Neighbor Works America, Web 27 Sept. 2012 http://ForeclosureHel- Fax: 304-781-0229 pandHope.org/ citing Craig Email: [email protected] Focardi, CMB, Research Director, bobbymillermd.com Tower Group’s consumer lending division, cited by Dona Dezube, TYPES OF SERVICES Heroic Homewonership”, Mortgage Brain Injury • Civil Competency Banking, (June 2006) p. 82. Criminal Competency • Emotional Damages 7. In the past, this difference could be Employment Dispute • Fitness for Duty attributed to a backlog of sales in Bobby A. Miller, M. D. Independent Medical Evaluation Medical Malpractice • Quality of Parenting the Master Commissioner’s Office, Psychological & Neuropsychological Testing but that backlog has been elimi- Sex Offender • Litigation Support Services nated. Will Contest • Workers’ Compensation 8. “Conciliation Project Announced in Louisville,” Mortgage orb, 1 July • Board Certified Forensic Psychiatrist • Director of Forensic Services at 2009, Web 26 Sept. 2012, • Board Certified Neuropsychiatrist Mildred Mitchell-Bateman Hospital http://www.mortgageorb.com/. • Board Certified Psychiatrist & River Park Hospital 9. Program enacted pursuant to 12 • Residency Trained Neurologist USC §5201. 10. Id. November 2012 18 Bench & Bar wolff.qxd 11/5/12 4:18 PM Page 19

LEGAL TOOLS FOR A TOUGH ECONOMY

interview the attorney should evaluate the merits of the case as well as the DEFENDING CREDIT practical factors involved in deciding to take the case. CARD COLLECTION The first step is to make sure the client brings all documents related to the debt as well as a credit report. A LAWSUITS quick look at the court documents will determine the procedural state of the case (whether the time to file an answer has passed, whether a default judgment has been entered, etc.). The credit report will also help identify potential issues such as: whether the statute of limitations has run, whether there may be credit reporting errors, whether the collector has sued the wrong party, whether the amount alleged due is accurate, and whether the plaintiff owns the debt. A well-developed client question- naire is essential to an efficient client interview. A good client questionnaire allows an attorney not only to quickly and comprehensively obtain the infor- mation necessary to evaluate the client’s case, but also allows the attorney to give the client well-rounded, practical advice regarding his or her options. In a credit card collection case this means gathering information regarding the client’s assets, income, and other debts (the credit report is also an impor- tant aid in that clients often have forgotten debts or are unsure as to the status of some accounts). If a consumer By Loren VanDyke Wolff However true their assumptions may has significant debts, bankruptcy may have once been, today consumers often be a better alternative than spending INTRODUCTION have meritorious defenses. At a mini- time and money litigating one debt. ecent years have seen an explosion mum, consumers have a right to ensure Impending foreclosure or wage garnish- in credit card collection lawsuits. that the debt collector suing them actu- ments may make bankruptcy a more RIn addition to the surge in law- ally owns the debt and that the amount viable option as well. suits, a vast majority of the lawsuits alleged is accurate. An initial review of the complaint filed are not filed by the original credi- Moreover, it is possible for an attor- and attachments should also be done to tor but by debt buyers.1 What is more, ney to successfully and cost-effectively look for any deficiencies or inconsisten- experts estimate that as many as 90 per- defend consumers. With that in mind, cies on their face. Common items to cent of collection lawsuits result in this article is meant to be a brief outline look for are: whether exhibits referred to default judgments.2 of common defenses and counterclaims in the complaint are actually attached, An underlying reason for the large as well as the practical aspects of whether the plaintiff is the original cred- amount of default judgments is that con- defending credit card collection lawsuits. itor or a debt buyer, whether the amount sumers, as well as lawyers, tend to alleged in the complaint is supported by assume that when a consumer is sued by CLIENT INTERVIEW & CASE SELECTION the attachments, and whether the correct a debt collector they probably owe the The key to cost-effective representa- defendant is named. debt and there is nothing they can do. tion of defendants in credit card The consumer attorney should also They either ignore the suit for financial collection lawsuits is an efficient and ensure that the complaint and attach- reasons or pay whatever is asked for. complete client interview. In the initial ments comply with CR 7.03. Enacted in November 2012 Bench & Bar 19 wolff.qxd 11/8/12 9:40 AM Page 20

2011, CR 7.03 years.5 In some cases, the issue of which able interest in the subject matter of the states that the state’s statute of limitations applies may suit” and the interest must be a “present social security arise because some credit card contracts or substantial interest as distinguished number (or provide that the contract is governed by from a mere expectantcy.”7 In a credit taxpayer identifi- the law of the state of the credit card card collection lawsuit this means prov- cation number), issuer. This could be beneficial to a con- ing that the plaintiff owns the debt and the birth date and sumer in light of Kentucky’s borrowing is entitled to enforce it. digits of the finan- statute which provides that if the cause A recent Kentucky Court of Appeals cial account number must be redacted of action accrued in another state, then decision shed some light on the standing from any court filings. the shorter of the limitations governs.6 requirement in the context of a credit It must also be established when the card collection lawsuit.8 In Bruner v. DEFENSES & COUNTERCLAIMS statute of limitations began to run. Col- Discover Bank c/o DFS Services, Inc., A thorough client questionnaire and lectors may argue that the statute of the plaintiff appeared to be an entity interview is also the first step in identi- limitations begins to run when the debt affiliated with the original creditor, fying potential counterclaims and was accelerated or from the charge-off “DFS Services, LLC.”9 However, in its defenses. date. An argument can be made that the initial pleadings the plaintiff referred to An important threshold issue that can statute of limitations begins to run from itself as “Discover Bank” and then later be a crucial defense is the statute of lim- the date of default or the date of the last referred to itself as “Discover Bank c/o itations.3 However, determining which payment. DFS Services, LLC.”10 In holding that statute of limitations applies and calcu- The next key issue in a credit card the plaintiff lacked standing, the court lating when the statute of limitations collection lawsuit is whether the collec- explained that even though DFS Ser- begins to run is not always a simple tor owns the debt and is entitled to vices, LLC is an affiliate of Discover analysis. collect it. The importance of the stand- Bank there still must be some evidence The statute of limitations is an affir- ing requirement cannot be that that the affiliate has authority to mative defense that must be raised or overemphasized. collect the debt.11 The court stated that waived.4 In Kentucky, the statute of lim- Pursuant to CR 17.01 a party must in order for a plaintiff to show that it itations period on a written contract is have standing as a real party in interest has standing in a collection lawsuit the fifteen years, and the statute of limita- in order to sue. Standing is established plaintiff must show ownership of the tions on a contract not in writing is five when a party has a “judicially recogniz- debt, an assignment of the debt or authority to collect the debt.12 While Bruner revealed that standing may be an issue even when the plaintiff NEW From LawReader Books: appears to be the original creditor, standing may be the controlling issue The Tell All Novel that every when the plaintiff is a debt buyer. A Kentucky lawyer should read!!! debt collector may be the fourth or fifth owner of the debt. Therefore, it is vital that a consumer attorney insist that a "A PARLIAMENT OF OWLS" collector show a complete chain of title. Each document offered as proof of own- by Stan Billingsley ership should be carefully scrutinized UK Law Professor: “It’s a real hoot!” for inconsistencies and to ensure that it Covington Law professor: meets evidentiary requirements. Debt buyer plaintiffs in collection “An important story that needs to be told.” actions will often produce a document This Interesting Novel Reveals titled a “Bill of Sale” or “Assignment” How Lawyer’s Ethics Rules Can Be Misused. that purports to sell a group of assets from the original creditor to the plaintiff. AVAILABLE AS AN E-BOOK ON AMAZON.COM This document shows that a transfer of Also available at assets took place between the plaintiff and the original creditor. However, it will Carmichael’s Bookstore in Louisville often fail to show that the account in To order a Paperback Copy Contact: question was included in the transaction. Becky at (502)732-4617 – e mail: [email protected] Documents offered as proof of own- LawReader Books - 314 7th St. - Carrollton, KY 41008 ership of the debt or authority to collect LawReader Books - a Division of LawReader. Inc. the debt must meet evidentiary stan- dards as well. Assignments are business records that must meet the requirements November 2012 20 Bench & Bar wolff.qxd 11/5/12 4:19 PM Page 21

of the hearsay rule.13 They must be due and which portions are principal, misconduct under the Fair Debt Collec- properly authenticated by affidavit and interest and fees. A consumer attorney tion Practices Act (FDCPA).21 The meet the requirements of KRE 902(11). should look for inconsistencies as to the FDCPA prohibits deceptive, unfair, and This is not merely an academic exer- balance due in every document pro- abusive practices by third-party collec- cise; it can have real-world implications duced (attached to the complaint, tors. If identity theft or erroneous credit for a consumer. If the plaintiff is not the produced in discovery, and filed in sup- reporting has taken place, a counter- true owner of the debt, then the con- port of summary judgment). claim under the Fair Credit Reporting sumer would be vulnerable to double An underlying issue related to the bal- Act (FCRA) may exist.22 liability on the same debt, continued lit- ance due is whether the collector has In most cases, the consumer’s igation, and further attempts to collect. proven that it is entitled to the interest defenses and the merits of plaintiff’s The next set of defenses relates to and fees it claims. This also relates to the claim will be addressed in the collector’s whether the collector has proven the collector’s legal theory of the case. If the motion for summary judgment. Collec- elements of its claim and offered suffi- collector is suing on a contract theory, tors will often include affidavits in cient evidence in support of its claim. the amount of interest and fees will be support of summary judgment. Any affi- The golden rule in credit card defense is controlled by the terms of the contract. davits offered in support of summary that it is the plaintiff’s burden to prove Proving the balance due is more judgment must meet the standards of CR the elements of its claim.14 complicated when the collector is suing 56.05. CR 56.05 states that affidavits in The first difficulty is often in deter- on an “account” or “account stated” the- support of summary judgment “shall be mining what legal theory the collector is ory. In general, an account theory states made on personal knowledge, shall set pleading. Kentucky is a notice pleading that a consumer has been extended forth such facts as would be admissible state, and plaintiffs are generally granted credit and has therefore implicitly in evidence, and shall show affirmatively wide latitude as long as the complaint agreed to pay the amount specified on that the affiant is competent to testify to gives the defendant fair notice of the an account statement.20 the matters stated therein. Sworn or certi- plaintiff’s claims.15 Plaintiffs may even On summary judgment the collector fied copies of all papers or parts thereof plead alternative and inconsistent theo- will often submit an affidavit asserting referred to in an affidavit shall be ries.16 It is often unclear whether the the amount owed. Again, any affidavit attached thereto or served therewith.” plaintiff is suing under contract theory, must be properly authenticated and meet Often, affidavits may not meet this account stated theory, or general theory evidentiary standards. standard. Affidavits often reference doc- of nonpayment. In general, in a collec- A consumer may also have counter- uments that are not attached. It is also tion lawsuit the plaintiff must prove the claims in a credit card collection important to examine the name and title existence of the debt, the amount of the lawsuit. Before a lawsuit is filed a con- of the affiant. Pay careful attention to debt, the terms of the debt and its right sumer will often have been harassed by whose records the affiant says he or she to collect the debt.17 aggressive debt collectors for months has personal knowledge of. For exam- While there is little published Ken- and sometimes years. Counterclaims ple, an employee of a debt buyer cannot tucky case law governing credit card can be raised based on the collector’s have knowledge that the original credi- collection suits, Bruner gives us some guidanceas to the standards that apply. The Bruner court held that a collector Nonprofit Organization Law Can Be Complex must provide “(1) a bill of sale listing the name and account number of the My Practice Is Limited to Advising Nonprofits and defendant; (2) a document specifically The Professionals Working With Them detailing how the creditor/plaintiff reached the principal and interest Assistance Provided With amounts that it is suing for; and (3) doc- umentary evidence that the defendant is Organization Formation in fact the person responsible for the Organizational Policies & Procedures debt.”18 Assessment of Operations Regardless of the collector’s theory Continuous Improvement Systems (Quality) of the case, the collector must prove its Board Governance Issues damages. As the Bruner court stated, Complex Tax Matters this includes “specifically detailing how For-Profit Subsidiaries and Joint Ventures the creditor/plaintiff reached the princi- Merger, Consolidation or Dissolution of Nonprofits pal and interest amounts that it is suing for….”19 Often, collectors simply assert Conley Salyer, Attorney, J.D., LL.M.; Examiner, Malcolm Baldrige National Quality the balance due in the complaint and Award (MBNQA). [email protected], (859) 281-1171, attach one or a series of credit card 710 E. Main Street, Lexington, KY 40502. www.nonprofitattorney.net statements. However, the collector must This is an advertisement. itemize how it calculated the amount November 2012 Bench & Bar 21 wolff.qxd 11/9/12 2:08 PM Page 22

tor issued a credit debt buyer, the consumer’s attorney particularly relevant in credit card card to the con- should insist that there is some form of collections lawsuits including: sumer. warranty that the plaintiff is in fact the accord and satisfaction, discharge true owner of the debt. Often, collectors in bankruptcy, duress, estoppel, DISCOVERY will even agree to indemnify the con- failure of consideration, fraud, ille- Discovery is an sumer from future attempts to collect gality, laches, payment, release, res important step in the debt. A settlement agreement should judicata, and statute of frauds. the cost-effective also include a requirement that the col- 5. KRS 413.090(2), KRS 413.120(1). defense of a credit card collection case. lector update the consumer’s credit 6. KRS 413.320. Given the repetitive nature of these report. Once a settlement agreement is 7. City of Ashland v. Ashland F.O.P. cases, a consumer attorney can develop executed, a formal dismissal should be No. 3, Inc., 888 S.W.2d 667 (Ky. proficient standardized discovery filed with the court. A consumer attor- 1994). requests. Well written discovery ney should insist that the dismissal be 8. Bruner v Discover Bank c/o DFS requests focus on the collector’s proof with prejudice. Services, LLC., 360 S.W.3d 774 of ownership of the debt and its proof of (Ky. App. 2012). CONCLUSION the balance due. 9. Id at 774. By the same token, the consumer’s With the rise in consumer debt and 10. Id. attorney should carefully respond to the the debt buying industry, consumers 11. Id at 778. collector’s written discovery requests. will continue to face credit card collec- 12. Id. Because the vast majority of credit card tion lawsuits. Most consumers are 13. KRE 803(6) and 803(7). collection lawsuits result in default hardworking people who want to pay 14. See Hickey v. Glass, 149 S.W.2d judgments, collectors often use form their debts. It is unfortunate that so 535, 285 Ky. 848 (Ky.App. 1941); discovery requests aimed to prove the many lawsuits result in default judg- see also Bruner v Discover Bank elements of their case. In particular, ments when in many cases consumers c/o DFS Services, LLC., 360 requests for admissions must be can successfully defend these suits. It is S.W.3d 774 (Ky. App. 2012). answered carefully. While the consumer possible to provide consumers the cost- 15. CR 8.01.See also 8.05(1), Smith v. must answer truthfully, one cannot effective representation they need. Isaacs, 777 S.W.2d 912 (Ky. 1989), admit or deny a fact of which he or she Holly Creek Production Corp. v. has no personal knowledge.23 LIST OF RESOURCES Banks, No. 2008-CA-001851-MR The following is a list of resources (Ky. App. 2009). SETTLEMENT for attorneys interested in representing 16. CR 8.05(2), See also Smith v. Most debtors being sued by a collec- consumers in credit card collection law- Isaacs, 777 S.W.2d 912 (Ky. 1989). tor are practical people — they want to suits: 17. Bruner at 778. pay the debt, but they want to make National Consumer Law Center, Col- 18. Id. sure they are paying the correct party lection Actions (2nd ed. 2011) 19. Id. the correct amount. They also do not National Consumer Law Center, The 20. See Debtor/Creditor Relations in want to spend more in legal fees than Practice of Consumer Law (2nd ed. Kentucky, 3d ed.§ 4.2 (UK/CLE) the amount they owe the collector. 2006) (2011). However, in some situations, such as Debtor/Creditor Relations in Ken- 21. 15 U.S.C. § 1692 when the consumer believes he or she tucky, 3d ed. (UK/CLE) (2011). 22. 15 U.S.C. § 1681 previously settled the debt or when the 23. See CR 36. debt buyer cannot prove ownership but ENDNOTES Loren VanDyke will not indemnify the consumer, litigat- 1. This article will focus on debt buy- Wolff and her ing the debt regardless of the amount ers as plaintiffs; however, many of husband Ben due may be beneficial to avoid further the tactical considerations and have a full serv- liability on the same debt. It is incum- defenses apply to collection actions ice general bent upon the consumer’s attorney to brought by original creditors as practice firm discuss the costs and benefits of moving well. with a focus on forward with the client at each stage of 2. National Consumer Law Center, consumer law, litigation. Likewise, the consumer attor- Collection Actions § 1.4.3 (2nd ed. providing a wide ney should keep an open settlement 2011) (citing a series of studies). variety of legal services including: dialogue with the collector’s attorney 3. A lawsuit brought after the statute bankruptcy, foreclosure defense, throughout litigation. of limitations may also give rise to credit card defense, debt negotia- If the collector and consumer can a Fair Debt Collection Practices tion, and real estate. For more agree on a settlement amount, there are Act (FDCPA) violation. information visit www.wolfflawky.com additional issues that should be 4. CR 8.03.In addition to the statute or contact Loren and Ben Wolff at addressed in the final settlement agree- of limitations, there are several crit- 859-757-4345. ment. Particularly when the plaintiff is a ical affirmative defenses November 2012 22 Bench & Bar kibbey.qxd 11/8/12 9:38 AM Page 23

LEGAL TOOLS FOR A TOUGH ECONOMY Consumer Financial Protection Bureau Activity in 2012 and Beyond Every day we have a chance to figure out and fix the many problems and concerns that we see in the consumer financial markets. And in these early days, that goes doubly, triply, maybe octuply . . . So there is one point that is obvious enough here: Let’s Get Cracking! —CFPB Director Richard Cordray1

By Jeffrey W. Kibbey

s the Consumer Financial Protec- tion Bureau concludes its first A year of activity, attorneys and other participants in the U.S. financial markets are still trying to answer this practices (UDAAP).”5 Although the which were largely based upon the rules basic question: How will this new CFPB is barely a year old, it has already already utilized by Federal Trade Com- bureau use its unprecedented power, employed each of these tools with vary- mission and the Securities and and how will it affect the private sector? ing degrees of success. Exchange Commission. Likewise, the With the appointment of its director Bureau’s final rules of procedure for under legal and political fire, the CFPB Rulemaking non-adjudicative investigations13 were has set new standards among federal The Bureau establishes Federal law based upon existing rules applicable to entities for speed, scope and volume of through the traditional method of pub- the SEC and FTC. activity. In the first eight months from lishing a proposed rule, allowing for The majority of these procedures the appointment of Director Cordray, comment, and then issuing a final rule.6 were generally known to regulatory the CFPB has submitted 32 final, pro- Although the Bureau must consult with practitioners; however, one rule stands posed or republished rules addressing other prudential regulators,7 it retains out as unique. The Bureau has indicated virtually every Federal financial law,2 the final word on all matters within the that it intends to obtain information that and it seems clear that the Bureau CFPB’s broad jurisdiction.8 Already, the is otherwise protected under privilege, intends to continue moving at a fervent Bureau has republished 19 preexisting including the attorney-client privilege,14 pace. regulations in order to draw them into and then provide that information to law its jurisdictional purview.9 No substan- enforcement officials, federal agencies, The Bureau’s Processes tial changes were made during the state regulators, and other government The Bureau’s duties to research, edu- republishing process.10 However, in so officials.15 The act of furnishing privi- cate, regulate, monitor and enforce doing, the CFPB arguably stripped leged information to the CFPB will not virtually all Federal consumer financial many agencies of their prior authority to constitute a waiver or privilege, but the laws are carried out through a combina- administer those regulations, thus CFPB’s use of that information materi- tion of rulemaking, advisory and requiring them to either focus on the ally vitiates the concept of privilege.16 enforcement processes.3 The Bureau has areas where the Bureau has not already Another rule reaching finality defines statutory authority to research, draft, spoken or join with the Bureau in its a “larger participant” for the purposes propose and finalize rules pertaining to actions.11 CFPB supervision and enforcement consumer financial affairs, and those actions.17 Although specifically author- rules are granted the force of federal a. Final Rules and Interim Final Rules ized to regulate depository institutions, law.4 The Bureau may also solicit and Several CFPB rules have already the Bureau is empowered by Section compile consumer complaints, which reached finality. Not unexpectedly, most 1024 of the Dodd-Frank Act to expand information may be used to detect and of those rules are procedural in nature. its reach to cover non-bank persons and correct what the Bureau perceives to be The Bureau established its rules of prac- entities that constitute “larger partici- “unfair, deceptive, or abusive acts and tice for its adjudication proceedings,12 pants” in the financial industry. The November 2012 Bench & Bar 23 kibbey.qxd 11/8/12 9:38 AM Page 24

Bureau’s final The Bureau has also published sev- compliance has been set, but is expected rule provides eral interim final rules that have to be announced in the first quarter of a complex immediate effect but are open to further 2013. formula for comment and revision. For example, the Another proposed rule with a lim- identifying Bureau has established procedural rules ited comment period concerns new the persons for requesting information from the rules for mortgage loan originators.36 and entities Bureau, whether through the Freedom Based in part on the rules implemented covered under Section 1024.18 of Information Act or otherwise.28 The by the Federal Reserve Board in Other final rules that were success- Bureau later implemented the Equal 2011,37 the Bureau’s rule continues the fully installed by the Bureau have the Access to Justice Act into its procedural prohibition of the payment of a loan effect of capping the increase in credit rules, which allows for the award of originator’s compensation based on the report fees;19 increasing the reporting costs and attorney fees to certain liti- terms of the transaction other than loan threshold under the Home Mortgage gants in CFPB adjudications. Finally, amount (ie, yield spread premiums).38 Disclosure Act of 1975;20 providing the Bureau published an interim final The Bureau has, however, proposed to mechanisms for local regulators to alert rule designed to integrate Section 504 of allow the loan originator to reduce its the CFPB to state-based enforcement the Rehabilitation Act of 1973, which compensation to reimburse the con- actions;21 and setting out the authority prohibits discrimination on the basis of sumer for certain unanticipated of the Bureau to join in enforcement disability.29 variances in the final costs of a loan39 actions brought by state regulators.22 – a matter that had caused mortgage One final rule, however, never met b. Proposed Rules. loan originators great difficulty under its effective date and was withdrawn by Since its inception, the Bureau has the prior rule, and will alleviate many the CFPB. Prior to the formal empower- been developing a significant change to practical difficulties that were encoun- ment of the CFPB, the Federal Reserve disclosures provided to consumers in tered with the disclosure rules of the Board published a proposed rule that certain loan transactions, including Good Faith Estimate. amended the Truth in Lending Act to revised forms for the Good Faith Esti- That same proposed rule also require a creditor to make a reasonable mate, the Truth in Lending Disclosure, requires mortgage lenders to provide and good faith determination that the and the HUD-1 Settlement Statement.30 each borrower with a “Zero Point Alter- consumer had a reasonable ability to In August of 2012, the Bureau pub- native Loan.”40 Under the proposed repay a residential mortgage loan lished a comprehensive proposed rule rule, a creditor who seeks to charge according to its terms.23 Attempting to that introduced the new disclosure origination or discount “points” and fees construe Section 1411 of the Dodd- forms and set our compliance proce- on a residential mortgage loan must first Frank Act, the Board held that a dures.31 This proposed rule applies a offer to the consumer a similar loan transaction could not proceed if the wide variety of transactions ranging without any points or fees.41 If passed, creditor could not reasonably document from student loans to residential mort- this proposed rule would constitute a a borrower’s ability to repay the mort- gage loans.32 Topping out at nearly significant change in the mortgage orig- gage loan.24 1,100 pages, the proposed rule consoli- ination process, but the CFPB has again The CFPB issued its own interpreta- dates the GFE and TIL into one form, limited the comment period to only 60 tion of the rule by setting out the while at the same time: introducing new days. standards that a creditor must use when and severe penalties for non-compli- Under another proposed rule, resi- determining the borrower’s repayment ance; dictating dates for early and final dential mortgage lenders may be ability and also by defining the aspects disclosure of loan terms; establishing a required to bear the cost of second of a “qualified mortgage” that would new calculation method for the Annual appraisals on real estate if certain be exempt under the rule.25 Industry Percentage Rate; imposing limits on thresholds are imposed by the Bureau.42 commentators argued that the so-called closing costs and fees; requiring new In the event that a transaction triggers “ability to repay rule” would funda- waiting periods prior to closing; and the Bureau’s threshold for “higher-risk” mentally impact the availability of establishing long-term recordkeeping mortgages, the creditor will be required residential mortgage loans by creating requirements.33 to obtain (and pay for) a second new barriers to lending decisions.26 Although the CFPB spent a year appraisal of the real estate and provide a They also took exception to the developing the proposed rule, it allowed copy of that appraisal to the consumer Bureau’s narrow definition of a “quali- for only 60-days to submit comments on prior to closing.43 Meanwhile, the fied mortgage” and stated that the rule the new definition of the Annual Per- Bureau has proposed to broadly revise would lead to an increase in costs to centage Rate and 120-days for the the current definition of “higher-risk the consumer.27 In the wake of consid- remainder of the rule.34 This truncated mortgage loan,” which could potentially erable industry turmoil, the Bureau comment period led some commentators cause a greater number of transactions withdrew its rule and is expected to to question the CFPB’s commitment to to trigger complex high-cost mortgage republish a final rule in the first quarter fairness and transparency in its rulemak- loan regulations. The Bureau is appar- of 2013. ing process.35 No effective date for ently cognizant of this potential and has November 2012 24 Bench & Bar kibbey.qxd 11/8/12 2:33 PM Page 25

sought advice from the industry and the examinations), and requirements for to investigate under UDAAP, the public.44 reloadable pre-paid credit cards Bureau determined that Capital One In other areas, the Bureau has pro- (expanding coverage).51 sold its customers certain add-on prod- posed that depository institutions Later in 2013, the Bureau is expected ucts such as credit monitoring services impose competency and character tests to broaden the reach of the Alternative and “payment protection plans” on their loan origination staff. Previ- Mortgage Transaction Parity Act and through “high-pressure sales tactics” ously, those employees were only expand the scope of fair lending concerns and misrepresentation.56 required to register with federal authori- though a revision of Regulation B.52 While the amount of the restitution ties but were not subject to any sort of and penalty is significant enough to mandatory testing or certification. Non- UDAAP and Enforcement Actions notify the industry that there is a “new depository lenders, however, have been In addition to its rulemaking author- sheriff in town,” the Bureau’s post- required to ensure that their staff is ity, the CFPB may implement enforcement proceedings are positive properly trained, tested, and certified monitoring, investigative and enforce- for creditors and consumers – and their since 2009.45 The CFPB rule proposes ment actions to prevent what it counsel. First, the Bureau published a to level the playing field between banks perceives to be “unfair, deceptive, or consumer advisory to notify Capital and non-banks in this regard. abusive acts and practices” (UDAAP).53 One cardholders of the action. The An area that is likely to garner sig- Under this authority, the Bureau may Bureau then published a second con- nificant attention relates the Bureau’s issue consumer advisories, monitor sumer advisory to educate and warn proposal to establish significant rules financial service providers, enter into consumers about similar practices that on mortgage loan servicing and default enforcement actions, execute Consent may be employed by other creditors. management practices.46 In an apparent Orders, and prescribe remedies for vio- Finally, the Bureau published an indus- effort to foster transparency, the lations if the Bureau determines that try bulletin containing its expectations Bureau adopted many of the concepts those methods assist the Bureau in ful- for credit card issuers who seek to sell contained in the 2011 “robo-signing” filling its stated mission.54 add-on products.57 In one enforcement settlement reached by the Office of the The Bureau’s first enforcement action, the CFPB not only remedied a Comptroller of Currency and the action resulted in a $140 million wrongful practice under UDAAP, but nation’s largest mortgage loan ser- refund to two million credit card cus- also educated consumers and provided vicers.47 If finalized, the rule would tomers of Capital One, plus a $25 the industry with a practical compliance require a new form for monthly state- million civil penalty.55 Using its power guide. ments, which would include detail on the application of each payment and information about loss mitigation; warnings before the adjustment of EQUINE REGULATORY LAW interest rates; limitations on “force- placed” hazard insurance; and early “... a must-have for any information on counseling to help Equine Law Practitioner ...” avoid default and foreclosure.48 A final –Robin Webb, State Senator and Equine Lawyer rule is expected to be announced in January of 2013. “... meticulously researched ... fascinating ... thorough ...” c. Pre-Rule Stage. –Daily Racing Form Consistent with its pledge of trans- parency, the CFPB has announced its “... highly readable ...” intention to study rules on reverse mort- –American Bar Association Journal gages with an eye toward introducing new disclosures and origination proce- dures.49 The Bureau is also working “... scholarly ...” with a number of higher education insti- –The Blood-Horse magazine tutions to create enhanced transparency 50 for educational loans. Written by Bob Heleringer — Attorney, Teacher, Moreover, the CFPB expects to issue former State Legislator, former Racing Official a variety of proposals in the spring of 2013, including new rules regarding the Home Mortgage Disclosure Act (requir- $89.95 plus tax/shipping & handling ing additional data reporting), the To order visit www.equineregulatorylaw.com supervision of large depository institu- or call 502--327-6787 tions (coordinating state and Federal

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Conclusion 19. 77 F.R. 20011, Docket No. CFPB- June 5, 2012. Following 2012-014, RIN 3170-AA06. 51. 12 C.F.R. X, CFPB Semiannual Director Cor- 20. 12 C.F.R. 1003. Regulatory Agenda (2012). dray’s 21. 12 C.F.R. 1082. 52. Sheshunoff, Dodd Frank Update message to 22. Id. (A.S. Pratt Pub. 2012). his staff in 23. Pub. L. No. 111-203, Sec. 1411. 53. Id. at Sec. 1021(b)(2). February, 24. Id. 54. Id. at Sec. 1021. there can be no doubt that the Bureau 25. CFPB Docket 2012-0022, RIN 55. In Re: Capital One Bank, N.A., has indeed been “cracking.” Although 3170-AA17. CFPB Administrative Action No. the financial services industry has been 26. See, e.g., National Association of 2012-CFPB-001 (2012). plagued with uncertainty in recent Federal Credit Unions, Comment 56. Id. at p.5. years, the Bureau has provided a con- on Qualified Mortgage Rule, June 57. CFPB Bulletin 2012-06. sistent, vocal and certain presence since 1, 2012. the appointment of its director. The Id. Jeffrey W. Kibbey 27. is the vice presi- appointment of the director may remain 12 C.F.R. 1070 (July 28, 2011). 28. dent and general 77 Fed. Reg. 4066 (Aug. 6, 2012). uncertain until legal challenges are 29. counsel to Cen- resolved, but until then the presence 30. http://www.consumerfinance.gov/ tury Mortgage and reach of the CFPB seems solidly knowbeforeyouowe/. Company/Century established. 31. 12 C.F.R. 1024; 12 C.F.R. 1026; Lending Com- Docket No.CFPB-2012-0028. pany, a mortgage ENDNOTES 32. Id. banking institu- 1. Weekly Email Message to CFPB 33. Id.; See also 12 C.F.R. 1026, tion based in Louisville and active in Staff from Richard Cordray, Feb. 6, Docket No.CFPB-2012-0037, RIN 17 states. Prior to joining Century, 2012. 3170-AA13 and CFPB-2012-029, Kibbey was the managing partner and primary shareholder of Kibbey-Apple 2. 12 C.F.R. X, CFPB Semiannual RIN 3170-AA12. Attorneys, PLLC, where he repre- Regulatory Agenda (2012). 34. Id. at P.1; Eventually, the comment sented the nation’s largest banks, 3. Dodd-Frank Wall Street Reform period for the entire rule was and Consumer Protection Act, Pub. extended to 120 days. CFPB Press lenders and servicers. He has been L. No. 111-203, Sec. 1022(b)(1). Statement, Sept. 6, 2012. repeatedly recognized as a national Id. at Sec. 1021(b). See, e.g., Scheduled Publication leader in the area of financial serv- 4. 35. ices defense litigation. Id. Dates of CFPB Mortgage Propos- 5. Kibbey is also a member of the board Id at Sec. 1022(b)(1). als Leave Little Time for Comments, 6. of directors of the Community Mort- CFPB Monitor, Aug. 9, 2012. 7. Id. at Sec. 1022(b)(2)(B). gage Lenders of America, a national 8. Id. at Sec. 1022(b)(2)(C). 36. 12 C.F.R. 1026, Docket No. CFPB- advocacy group representing inde- 9. http://www.consumerfinance.gov/ 2012-0037, RIN 3170-AA13. pendent lenders in matters pending regulations/ - Reg. 37. 12 C.F.R. 226. in the United States Congress and B,C,D,E,F,G,H,I,J,K,L,M,N,O,P,V, 38. 12 C.F.R. 1026 at p.347. before federal entities such as the X,Z,DD. 39. Id. at p.101. CFPB, HUD, FHFA, Fannie Mae, 10. Id. 40. Id. at P. 145. Freddie Mac and Ginnie Mae. Kibbey 11. See, e.g., Multi-Agency Guidance 41. Id. is also a featured speaker for the on Appraisals for High Risk Mort- 42. 12 C.F.R. 1026, Docket No. CFPB- National Business Institute and the gages, O.C.C. Docket 2012-0031, RIN 3170-AA11. West Legal Education Center in the areas of mortgage lending compliance No.OCC-2012-013. 43. Id. and mortgage servicing reform, and is 12. 12 C.F.R. 1081. 44. Id. at P. 36. 12 C.F.R. 1080 . 12 U.S.C. 5101, et seq. a certified instructor for the Kentucky 13. 45. Association of Realtors. 14. 12 C.F.R. 1070, Docket CFPB- 46. 12 C.F.R. 1026, Docket No. CFPB- 2012-0010; CFPB Bulletin 12-01 at 2012-0033, RIN 317-AA14. He earned his law degree from Tulane Law School with honors, where he p.2. See, United States of America v. 47. served as an instructor and was a 12 C.F.R. 1070. Bank of America, N.A., No 12-361 15. member of the Moot Court Board. He (D.C., 04/04/2012) and related 16. Id. is the multiple recipient of the Ameri- 17. 12 C.F.R. 1090.100. cases. can Jurisprudence Award, the 18. Although a final rule was issued, 48. See, Putting the ‘Service’ Back in Callaghan Award in Appellate Advo- the Bureau has nevertheless indi- Servicing, CFPB Official Publica- cacy, and the Chaffe-McCall Award in cated that it will issue additional tion, Aug. 10, 2012. Appellate Advocacy. He is licensed to rulings in this area. See, 12 C.F.R. 49. Docket No. CFPB-2012-0026. practice law in Kentucky and Ten- X, CFPB Semiannual Regulatory 50. Prepared Comments to the White nessee. Agenda (2012), at Sec. 14. House by CFPB Director Cordray, November 2012 26 Bench & Bar

JUDICIAL CONDUCT COMMISSION

COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION

PRIVATE REPRIMAND

The Commission issues this private reprimand to a judge for violation of SCR 4.300, the Code of Judicial Conduct.

The Commission received information during an informal investigation that the judge exerted the influence of the judge’s office in regard to the employment of certain individuals. Canon 2D of the Code of Judicial Conduct provides that a judge “shall not lend the prestige of judicial office to advance the private interests of the judge or others.”

The judge acknowledged that the conduct in question is in violation of Canon 2D and agreed to this private reprimand. There- fore, the Commission finds that by the above conduct the judge violated Canon 2D of the Code of Judicial Conduct and is hereby privately reprimanded.

In issuing this order, the Commission duly considered that the judge had no prior infractions, fully cooperated in the investi- gation and pledged that the conduct would not be repeated.

This order is issued the 28th day of September, 2012.

/s/ Stephen D. Wolnitzek, Chair

November 2012 Bench & Bar 27 SHOP TALK

FINDING NEEDLES IN HAYSTACKS: PUBLICLY AVAILABLE DATA ANALYTICS VIA GOOGLE1

Michael Losavio e need good, useful knowledge ABA newsletter Internet Fact Finding One quick support set is the top Wfrom the growing corpus of infor- for Lawyers. menu bar of the Google Search home mation from the Internet, the “Cloud” Google is a canonical model for page at http://www.google.com/. That and “Big Data.” Ubiquitous computing online search, so it’s helpful to review menu bar, including the “More” selec- produces mountainous exabytes of of its features for better, more effective tion, lets you focus your search on information far more accessible than in use. particular kinds of information, ranging the past, what some hold to be the new Basic use of Google through its from images, video and satellite memory of the world. The skills for this search query field can be immensely imagery and mapping to news and evolve daily, making research a chal- productive3. The Google search rules, financial articles, books, scholarly arti- lenge. But the tools also evolve, making some closely guarded computer algo- cles. See http://www.google.com/intl/en/ research easier. Yet this, in turn, may rithms, frequently produce relevant about/products/. create an information crisis through the results immediately. The more relevant A search tips & tricks training page sheer abundance of unmediated infor- terms are added to the query, the better offers tips from basic searching to win- mation a person is faced with accepting the results with a trade-off of growing ning a bet. These general suggestions or rejecting as authentic, accurate and risk of excluding a relevant result. may have broader applicability for other reliable. areas. See http://www.google.com/ But always note the “sponsored” Del O’Roark of Lawyers Mutual insidesearch/tipstricks/. results that are directed advertising, Insurance in May 20082 opined that Google periodically offers online not pure relevant search results. It’s competence in this area may be a matter classes of about 50 minutes each to help like free television… of professional responsibility. hone those skills. Those range from inter- O’Roark observed there might even Google offers additional support for preting results and advanced technologies be a “Duty to Google,” noting an ALI- improving search results. to speeding search and fact-checking. See http://www.google.com/insidesearch/ landing/powersearching.html. But the power of Google extends even further with additional search fea- tures. Once you’ve run a search on Google, the left-hand margin offers choices to focus (or “filter”) your search. The first set of filters relate to images, news and other kinds of information. Below that is a link for “Show search tools.” This lets you filter the results by various date and time ranges, from within the past hour to custom ranges of several years. You may also filter by other limiting factors. At the bottom of the search results page is a link for “Advanced Search,” which can narrow your search with additional features such as word exclu- sion, by language and region, section use and other filters. 28 Bench & Bar November 2012 Google permits even more powerful “Cache” – the “cache” operator Before You Move... search through special search operators focuses the search on older, cached ver- in a search query. Three examples are sions of web pages rather than the Over 16,000 attorneys are licensed to practice in the state of Kentucky. It is the “site,” “intitle” and “cache” search current version. This may be useful for vitally important that you keep the operators. checking to see if online information Kentucky Bar Association (KBA) informed “Site” – One powerful filter is the has been modified. of your correct mailing address. Pursuant “site” operator. It directs a search only to These three operators require strict to rule SCR 3.175, all KBA members must relevant materials within a particular syntax rules be followed; the syntax is maintain a current address at which he or website, which can be very useful for first the operator, then a colon ( : ) then she may be communicated, as well as a doing targeted search. The format is to the term, with no spaces between them. physical address if your mailing address is first enter your key search terms and then The above “site:” example shows the a Post Office address. If you move, you the term “site:www.testsearchsite.com” proper syntax. must notify the Executive Director of the and search. Google Scholar, the collection of KBA within 30 days. All roster changes An example: to search for recent information on scholarly articles, lists must be in writing and must include your cases involving illegal use of computers some of these a special search tips. 5-digit KBA member identification number. within the federal 6th Circuit you might http://scholar.google.com/intl/en/scholar/ There are several ways to do this for your use Google to search “illegal use of a help.html#searching convenience. computer site:www.ca6.uscourts.gov.” VISIT our website at www.kybar.org to make This searches the cases, published and ENDNOTES ONLINE changes or to print an Address unpublished, that the U.S. Court of 1. Google is the trademark of Google, Change/Update Form Appeals for the Sixth Circuit posts on Inc. its website. Results include the 2012 2. Del O’Roark, The Impact of the EMAIL the Executive Director via the cases of U.S.A. v. Cunningham (pub- Internet on a Lawyer’s Standard of Membership Department at [email protected] lished) and U.S.A. v. Trejo Care & Professional Responsibility, FAX the Address Change/Update Form (unpublished). This would also permit Part 1,) Kentucky Bench and Bar, obtained from our website or other written searches the newly amended Rules for May, 2008, pp. 29, 31-32. notification to: the Sixth Circuit, its forms and other 3. Caution is always advised. Google Executive Director/Membership relevant information for practitioners. is in an ongoing competition with Department (502) 564-3225 “Intitle” – The “intitle” operator website authors seeking to spoof MAIL the Address Change/Update Form focuses the search terms within the title the Google relevance engines so obtained from our website or other written of a page, which should increase rele- they appear higher in the search notification to: vance in a well-formed title that rankings than they should as to pro- immediately expresses the topic of the mote page views and their Kentucky Bar Association page. commerce. Executive Director 514 W. Main St. Frankfort, KY 40601-1812

* Announcements sent to the Bench & Bar’s Who, What, When & Where column or commu- nication with other departments other than the Executive Director do not comply with the rule and do not constitute a formal roster change with the KBA.

CLICK www.kybar.org

November 2012 Bench & Bar 29 ELW_Nov12.qxd 11/5/12 4:55 PM Page 30

EFFECTIVE LEGAL WRITING

E-MAILS TO CLIENTS: AVOIDING MISSTEPS

By Kristin J. Hazelwood appropriate absent “unusual circum- access a web-based e-mail account.5 If stances.” “Unusual circumstances” that the employer’s policies give it a right of n 1998, the KBA Ethics Committee can make e-mail inappropriate include a access to e-mails sent via the employer’s Iissued E-403, concluding that, absent communication involving an “extraordi- account or device, then the employee “unusual circumstances,” a Kentucky narily sensitive matter.”3 When the does not have a reasonable expectation of lawyer may communicate with a client client would suffer serious adverse con- privacy in the e-mail.6 That same analysis via unencrypted e-mail without violating sequences from disclosure of the e-mail, applies when members of a family share the lawyer’s duty of confidentiality.1 the lawyer should take extra steps (like an e-mail account or when the client (or Despite its popularity2 and ease of use, encryption) to ensure its security. the lawyer) uses a public or borrowed e-mailing with a client still poses special computer such as at a library or hotel.7 concerns. Not all communications are Does a third person have access to appropriate for e-mail, and, even when the e-mail account or device that the Does the communication convey e-mail is appropriate, drafting the e-mail client uses? According to a recent ABA bad or emotionally charged news? E- demands more of the writer than the typ- ethics opinion, because a lawyer has the mail’s short and direct form make ical e-mail. obligation to use reasonable care to pro- drafting e-mails that convey the appro- tect the client’s confidential information, priate tone challenging. Much as a Is E-mail Appropriate for this a lawyer ordinarily has an ethical obliga- lawyer would call or meet with a client Communication? tion to instruct the client not to use a to discuss a hearing with an unfavorable Here are some questions a careful computer or other telecommunications result rather than write a letter, the lawyer should consider before e-mailing device or e-mail account for sensitive (or lawyer should similarly resist the tempta- with a client: may even any attorney-client) communi- tion to e-mail such news to the client. In cations if another person has a right to conveying bad or emotionally charged Does this communication deal with access it.4 Specifically, the ABA was con- news to a client, the lawyer needs to be an extraordinarily sensitive matter? cerned with the situation in which a client able to respond to the client’s verbal and In E-403, the Ethics Committee stated uses an employer’s e-mail account or an nonverbal cues.8 That responsiveness is that unencrypted e-mail with a client is employer’s computer or smartphone to not possible with e-mail.

Would I want to hear this commu- HOW CAN THE COURTS SAVE MONEY? nication read in court? Just like with letters, a lawyer should always be mind- ful of the longevity of e-mail and the ease with which it can be shared with others. Forwarding e-mailed documents is particularly problematic because of the metadata that can unknowingly be passed along with a document. The answer is - GPS & Alcohol Monitoring Does this E-mail Look Like - Community Service Professional Correspondence? the needs of the courts with a decade of Writing professional e-mail is tricky - Monitor Payment of because it involves the use of an infor- funded, which results in no cost to the Court Fees mal mode for serious matters. Consider courts or the taxpayers. - Individual Randoms these questions in evaluating the content and form of an e-mail: with Call-In System Have I proofread and edited care- JUDICIAL SOLUTIONS 800.256.7141 - premierintegrity.com fully? Shortcuts in social e-mail may be the norm, but they should never become November 2012 30 Bench & Bar ELW_Nov12.qxd 11/8/12 9:34 AM Page 31

part of professional e-mail.9 Not much client as well as the e-mail’s form and Teaching Legal Res. & Writing, calls into question a lawyer’s intellec- content will help avoid missteps. Fall 2009, at 18-19. tual capabilities faster than grammatical 9. Kendra Huard Fershee, The New 10 errors. The careful lawyer proofreads ENDNOTES Legal Writing: The Importance of and polishes an e-mail just as carefully 1. Ky. Bar Ass’n Ethics Comm., Op. Teaching Law Students How to Use as a brief being filed in court.11 E-403 (1998). E-mail Professionally, 71 Md. L. 2. Kristen Konrad Robbins-Tiscione, Rev. Endnotes 1, 16 (2011). Is the e-mail concise? Recipients From Snail Mail to E-mail: The 10. Id. expect e-mails to be short. At least one Legal Memorandum in the Twenty- 11. Ian Gallagher, A Form and Style scholar has recommended the “no First Century, 58 J. Legal Educ. Manual for Lawyers 181 (2005). scrolling” rule: The recipient should be 32, 32-33 (2008). 12. Wayne Schiess, Writing for the able to read the entire message on a sin- 3. Ky. Bar Ass’n Ethics Comm., Op. Legal Audience 33-34 (2003); see gle computer screen and should not E-403 (1998). The Illinois State Bar also Gallagher, supra, at 181-82 have to scroll down to read it.12 Now Association opinion on which the (emoticons and texting abbrevia- that e-mails are often read on smart- Ethics Committee relied in E-403 tions should never be part of phones and tablets, the need for concise listed “extraordinarily sensitive mat- professional email). e-mails is even more pressing. ters” as an “unusual circumstance” 13. Schiess, supra, at 38. that would make unencrypted e-mail 14. Id. at 40. According to Professor Is the e-mail reader-friendly? unethical. Ill. State Bar Ass’n, Adv. Schiess, this format is preferable Focus the client on the legal issue by Op. 96-10 (1997). because formatting is often lost creating a subject line that conveys the 4. ABA Comm. on Ethics &Prof’l when an email is transmitted. specific purpose of the e-mail and Responsibility, Formal Op. 11-459 15. Gallagher, supra, at 180 (“The les- change it as the thread evolves.13 To (2011). son here is that you must think make sure that the client understands 5. Id. carefully about who is receiving and knows how to respond to your mes- 6. Id. every communication you send . . . sage, use a simple, block format for 7. Id. and what the implications of the your e-mail and put questions that need 8. Tracy Turner, Email Etiquette in receipt of the document are.”). to be answered at the beginning of the the Business World, 18 Persps.: 16. Ky. Sup. Ct. R. 3.130 (4.4). message.14 Put extra space between the chunks (either paragraphs or numbered le b . a k items) for readability. il o From a family of pioneer Kentuckians a o v B a e and forced into law school by his w n Have I double-checked the list of o a attorney-father, Bullitt became N s recipients? Check the recipient list care- a one of America’s most fully to make sure everyone on the list prominent lawyers. really needs to be included, especially when replying to a message.15 It’s frus- trating to have one’s inbox clogged with unnecessary messages. Even more prob- lematic, if the e-mail contains confidential information and goes to an opposing party or some other third party, the consequences for the client could be disastrous. Although the Kentucky Rules of Professional Conduct deal with the issue of inadvertent disclosure16 and even if the e-mail contains a privilege statement, the lawyer can easily avoid the embarrassment and risk to the client by double-checking the list of recipients. Waiting until after writing the body of the e-mail to add the recipients will help identify who should receive it.

E-mail can be a valuable tool for lawyers, but its misuse can create ethi- Visit: www.SolicitorGeneralBullitt.org to see sample pages or order the book. cal and credibility problems. Carefully considering the particular message and November 2012 Bench & Bar 31 THE KENTUCKY BAR FOUNDATION SALUTES ALL FELLOWS Thank you for the tremendous support you have provided toward our many programs and projects. ALBANY Kurt William Maier William C Oldfield* James R Kruer GLENVIEW Luther C Conner Jr Timothy L Mauldin Ron Parry Kevin Luke Murphy Virginia C Burbank* Christopher D Minix Roger Peterman Michael James Schulte ASHLAND John D Minton Jr Debra Seitz Pleatman GRAYSON Stephen S Burchett Frank Hampton Moore Jr Leonard G Rowekamp FORT THOMAS Robert L Caummisar James E Cleveland III William J Parker* Donald J Ruberg J David Bender William Horton Wilhoit Mark E Greene H Harris Pepper Jr Michael K Ruberg Donald L Johnson* Roger W Hall Whayne C Priest Jr Robert E Sanders Kurt J Meier GREENSBURG Catherine C Hughes Ryan Clifford Reed David A Schneider William Colvin W H Jones Jr Brett A Reynolds Wilfrid A Schroder FORT WRIGHT Harold E Kelley* C Michael Reynolds Gary John Sergent John R Kummer GREENUP Sara Beth Klein Charles H Reynolds* Michael M Sketch Raymond E Lape Jr John R McGinnis Thomas Louis Klein William Joseph Rudloff David B Sloan Robert E Ruberg* David F Latherow Elizabeth W Sigler Donald L Stepner Paul J Schachter GREENVILLE Richard W Martin George E Strickler Jr Beverly R Storm L Wayne Cisney* Arloe W Mayne* Linda Bernice Thomas Philip Taliaferro III FRANKFORT L Wayne Cisney Jr Gregory L Monge Steven O Thornton Richard E Wentz William C Ayer Jr William P Donan* Howard Van Antwerp* James Brent Travelsted Donald C Wintersheimer Mark Alan Bubenzer David O Welch Penny Travelsted* Stephen D Wolnitzek Robert V Bullock HARDINSBURG Robert E Wheeler Michael Scott Vitale Robert C Ziegler John Francis Burnette Thomas C Brite Kenneth Williams Jr Wilbert Louis Ziegler Morris E Burton CADIZ M Ronald Christopher HARTFORD BARBOURVILLE Frank H Wilcox Jr* CRESCENT SPRINGS Roger L Crittenden Abram V Conway John E Anderson Clarence A Woodall III Jennifer M Gatherwright Marie Alagia Cull Samuel E Davies Martin J Horwitz* Gregory C Fuchs HAZARD Guy Millward Jr CAMPBELLSVILLE Charles R Geveden Jeffrey Reed Morgan Amy Sullivan Anderson CRESTVIEW HILLS William L Graham BARDSTOWN George Barry Bertram David V Kramer Geoffrey B Greenawalt HENDERSON Michael E Coen John D Bertram Richard M Guarnieri Charles D Deep Thomas A Donan Phil A Bertram DANVILLE Robert M Hardy Jr William M Deep Sr* Terry Lane Geoghegan David A Nunery Deedra Benthall Paul C Harnice Frank N King Jr E E Hubbard* Connie Sue Sullivan Merle C Clark William G Hart Jr Henry C Neel* John D Hubbard Mark Lewis Morgan Michael Lee Hawkins Elizabeth E Vaughn CARROLLTON Eugene B Pflughaupt Marian J Hayden BEATTYVILLE Ruth Helen Baxter Sarah Mindwell Jackson HIGHLAND HEIGHTS Thomas Pryse Jones DRY RIDGE Joseph Russell Johnson Gerard A St Amand CATLETTSBURG Thomas C Smith William E Johnson BENTON Daniel King III Michael L Judy* HINDMAN George E Long II EDGEWOOD Robert W Kellerman Adam P Collins Marvin C Prince* CORBIN Harry David Rankin* William D Kirkland Nathan Collins J B Johnson Jr Erwin Wayne Lewis Gary I Conley BLOOMFIELD David Barry Jorjani ELIZABETHTOWN Samuel Gray McNamara Peggy E Patterson Howard Oliver Mann Reford H Coleman John Scott Mello HODGENVILLE William S Cooper John Downing Meyers Damon R Talley BOWLING GREEN COVINGTON Roger Taylor Rigney Robert C Moore Katie T Bennett Mark G Arnzen Carol M Palmore HOPKINSVILLE Michael K Bishop Joseph L Baker ERLANGER John S Palmore Jr William G Deatherage Jr David F Broderick Karen Burris Baker Kathleen Susan Lape John C Ryan Ben S Fletcher III Ruth Taylor Broderick Gregory M Bartlett Laura A Oldfield Richard S Taylor Ken Ray Haggard Kevin C Brooks William O Bertelsman Thomas L Rouse J Guthrie True J Daniel Kemp James David Bryant* William H Bixler* David Holland Vance W Douglas Myers Dwight Montae Burton Barbara D Bonar FLATWOODS Dandridge F Walton Selden Y Trimble IV* Joe B Campbell John A Bonar Thomas Cody Wales Thomas Dawson Wingate Paul K Turner* Keith M Carwell Martin Columb Butler John D Cole Mary Suzanne Cassidy FLEMINGSBURG GEORGETOWN HORSE CAVE Matthew Porter Cook Richard A Cullison William Todd Walton II Robert H Cornett Robert B Hensley* Scott K Crocker William J Deupree Jr* Frances Marie Geralds Barton David Darrell William J Deupree III* FLORENCE David L Knox HYDEN Steve Downey Michael Allen Duncan Jeffrey Robert Aylor Leonard H Brashear Timothy L Edelen Sharon S Elliston Joseph F Bamberger GLASGOW Charles E English Lori Jean Fields William J Kathman Jr Uhel O Barrickman* JACKSON Charles E English Jr John William Foote Wm T Robinson III Henry H Dickinson* Frank Allen Fletcher Douglas Wayne Gott Margo L Grubbs H Douglas Rouse Larry D Garmon Norman E Harned David Lewis Hausrath Tasha Kay Scott Betty Reece Herbert JAMESTOWN Catherine Rice Holderfield Mary Kathleen Molloy H Lawson Walker II Hiram J Herbert Jr Robert L Bertram Robert Dewitt Johnston Thomas R Nienaber Phillip R Patton Jeffrey Hall Hoover Robert H Johnston III James A Nolan* FORT MITCHELL Carroll M Redford Jr* Mildred Gail Wilson Scott Donald Laufenberg John J O’Hara* Albert C Hawes Jr* John Caldwell Rogers Paul Thomas Lawless Michael J O’Hara Martin J Huelsmann E P Barlow Ropp

32 Bench & Bar November 2012 LACENTER Joseph D Halbert William Brent Rice Clayton O Oswald Fred Hatmaker Mark Stephen Medlin John T Hamilton Henry C T Richmond III Hugh M Richards Kenneth G Haynes Kathleen M W Harris Larry S Roberts Marcia Milby Ridings Joseph B Helm LAGRANGE William S Harris Jr John M Rogers Warren N Scoville Henry R Heyburn* Robert E McBeath C Edward Hastie Jill Hall Rose James R Stansbury John G Heyburn II Lionel A Hawse Leslie Rosenbaum Roy W Tooms Sheila P Hiestand LAKESIDE PARK Dale W Henley Martha Alice Rosenberg Gary Robert Hillerich Daniel J Zalla George Edward Henry II Calvert T Roszell LOUISA Ronald P Hillerich Kevin G Henry Arthur B Rouse Jr* Gene A Wilson Frank P Hilliard LAWRENCEBURG William R Hilliard Jr Stephen M Ruschell Robert C Hobson* George M Geoghegan Jr Lisa English Hinkle Kathryn W Ryan LOUISVILLE Rhonda W Huddleston Paul C Hobbs* Kenneth R Sagan Lisabeth Hughes Abramson Eric L Ison LEBANON Warren J Hoffmann Joshua E Santana Edward C Airhart Elizabeth M Jenkins Elmer J George Richard M Hopgood Joe C Savage D Paul Alagia Jr A Thomas Johnson Joseph Hubert Mattingly III Glenn Allen Hoskins Joseph M Scott Jr Kenneth Lee Anderson David Seth Kaplan Robert F Houlihan Jr Phillip D Scott P Richard Anderson Jr Joseph J Kaplan* LEDBETTER Elizabeth Snow Hughes Billy Ray Shelton David L Armstrong Margaret E Keane Terry Wells John Granville Irvin Jr Weldon Shouse* Kathryn Ross Arterberry Charles Dant Kearns* Sheila R Isaac William C Shouse John A Bahe Jr Edward Michael King LEITCHFIELD Lisa Lee Johnson Ronald Neal Simon Douglas Cain Ballantine Nicholas N King David B Vickery Ernest H Jones II Thomas Bruce Simpson Jr John Tilden Ballantine William Lee Knopf Louis Kawaja Herbert D Sledd William C Ballard Jr Robert Allen Kohn LEXINGTON John Clarke Keller Carson W Smith W Robinson Beard Eric M Lamb Arthur E Abshire James Michael Kennedy Perry N Southard Jeffrey A Been William W Lawrence Glenn Earl Acree Carolyn Lips Kenton Richard W Spears* William A Blodgett Jr Laramie L Leatherman* John R Adams Ben Lee Kessinger Jr Andrew Martin Stephens Morris B Borowitz* Marc H Levy Stephen G Amato Shelby C Kinkead Jr Robert F Stephens* Robert G Breetz Barbara B Lewis Glen S Bagby Henry E Kinser Robert L Swisher David C Brown Jeremiah A Lloyd* Bennett E Bayer Charles Landrum Jr* John Scott Talbott III Alan O Bryant Kristin N Logan Winifred B Becker Robert Gene Lawson Joseph H Terry Bradley A Case Jane Long A Stuart Bennett Virginia Lue Lawson Adrienne A Thakur Joseph L Cashen John M Longmeyer Perry Mack Bentley R David Lester William P Thurman Jr Charles H Cassis Allison J Maggiolo John Nathanael Billings Rufus Lisle* James M Todd Charles S Cassis* Armer H Mahan Jr Anita Mae Britton Bernard F Lovely Jr Jerry D Truitt John Gregory Catron Samuel Manly Carolyn M Brown Whitney L Lucas Robert J Turley Mitchell A Charney John R Martin Jr Robert J Brown D G Lynn* Job D Turner III Leonard S Chauvin Jr William E McAnulty Jr* William Rodes Brown Mary Kathryn Manis Walter W Turner Dennis M Clare Patrick S McElhone Wayne Bunch Lucinda Cronin Masterton Richard H Underwood Richard H C Clay Lawrence K McElwain* Wayne Thomas Bunch II William H McCann Paul C Van Booven* Joseph H Cohen Jeffrey A McKenzie Thomas H Burnett Denise Hough McClelland Palmer Gene Vance II Robert H Compton William F McMurry Karen Caldwell Thomas A McConnell Laurance B VanMeter Stewart E Conner Henry Meigs II John Melvin Camenisch Jr Roy B McCoy Jr Lucy Bryans VanMeter* Francis Thomas Conway Francis J Mellen Jr Rutheford B Campbell Jr Douglas L McSwain Richard Elgin Vimont Brian D Cook Creighton E Mershon Deno C Capello Jr Mendel Austin Mehr Leslie P Vose Frederic J Cowan David R Monohan Christopher R Cashen Charles C Mihalek Donald D Waggener Donald L Cox Elmer E Morgan* Stanton L Cave Daniel Harlan Miller Dana G Walton-Macaulay Charles J Cronan IV Gerald A Neal Masten Childers II Margaret Ann Miller Robert M Watt III John R Cummins Joseph C O’Bryan Robert D Clark Stephen D Milner Harold Roy Weinberg Robert I Cusick Jr Michael J O’Connell James C Clay Donald P Moloney II Linsey Walker West Mark B Davis Jr Dulaney Lee O’Roark Jr Guy R Colson Phillip M Moloney Jackson W White William W Davis Ann B Oldfather C Kilmer Combs* Edward C Monahan Frederick W Whiteside Jr* Joseph M Day John S Osborn Jr Allison Inez Connelly Leslie W Morris II* Timothy C Wills Frank P Doheny Jr Peter Ostermiller Thomas M Cooper Gordon W Moss Natalie S Wilson A Robert Doll* William R Patterson Jr Theodore Emens Cowen Mark E Nichols Jo Ann Wise Robert L Durning Jr Kathleen Pellegrino Laura Anne D’Angelo Mary C Noble Catesby Woodford Marshall P Eldred Jr Edwin H Perry Bruce K Davis Eileen M O’Brien Jeff A Woods Linda S Ewald John W Phillips Sandra Mendez Dawahare Stephen M O’Brien III Joseph J Zaluski Robert Charles Ewald Susan D Phillips James Lee Deckard Kimberly Jean O’Donnell Douglass Farnsley Glenn A Price Jr Larry Colby Deener Carol B Paisley LEWISPORT Thomas Wesley Faulkner Rebekkah Bravo Rechter Laura Day DelCotto Lewis G Paisley Carol Y Boling Thomas L Ferreri Henry M Reed III Jacqueline S Duncan Charles E Palmer Jr Jon L Fleischaker John S Reed II Robert F Duncan Gregory Paul Parsons LONDON Dawn Rachele Franklin Albert F Reutlinger* Barbara B Edelman L Edwin Paulson Jr Bruce Russell Bentley Larry B Franklin Charles E Ricketts Jr James Derriel Elam Marshall S Peace Bradford L Breeding Ronald L Gaffney Jonathan S Ricketts Robert L Elliott Peter Perlman Martha Lynne Brown Sheldon G Gilman Michael D Risley Philip G Fairbanks J David Porter Michael Odell Caperton Charles E Glasscock Don W F Rodgers Edward L Farmer Jr Jerome Park Prather Robert E Cato* Jonathan D Goldberg Laura Rothstein William H Fortune David F Pratt Bridget Leigh Dunaway David B Gray Arthur Adams Rouse Carl Norman Frazier George F Rabe Jane Winkler Dyche John S Greenebaum William Paul Ryan Jr Fred E Fugazzi Jr Marco Mike Rajkovich Jr Robert W Dyche III Charles D Greenwell George Salem Jr* Jim Gardner Maria G Ransdell Felix Preston Farmer William D Grubbs Jeffrey A Savarise William R Garmer James Brian Ratliff V Katie Gilliam Asa P Gullett III Glenn L Schilling Julie Muth Goodman Nancy T Ray Brian Carter House Kevin J Hable John Edmund Selent Linda Ann Gosnell Barbara S Rea* Brandon C Jones Frank E Haddad Jr* M Brooks Senn Jane E Graham Carroll Morris Redford III John Warren Keller Robert Haddad James Marion Shake Richard G Griffith Bruce M Reynolds John F Kelley Jr Michael R Hance Richard D Shapero* Alison Lundergan Grimes John Regan Rhorer Jr McKinnley Morgan James E Hargrove Wm Kennedy Simpson

November 2012 Bench & Bar 33

Leroy E Sitlinger Jr NEWPORT Thomas L Osborne PRINCETON VERSAILLES Alan T Slyn* Steven Joseph Franzen William E Pinkston Bill Cunningham Janis Elaine Clark John L Smith John E Lange III Jonathan D Pitchford J Luke Quertermous* Marilyn S Daniel Raymond G Smith Scott D McMurray Emily M W Roark Todd S Horstmeyer S Russell Smith Jr* Robert C Patton Richard C Roberts PROSPECT William A Hoskins III Sheryl G Snyder Virginia J Southgate Thomas B Russell Phillip E Allen* Colvin P Rouse Sr* Dennis James Stilger Charles A Saladino* Raymond M Burse James Dedman Rouse John H Stites III NICHOLASVILLE W Fletcher Schrock John E Clontz Leroy Wesley Rowland* Joseph E Stopher* William Miles Arvin William Kevin Shannon Julia Kurtz Tackett Alan C Stout William Miles Arvin Jr G David Sparks RADCLIFF Elizabeth J Turley R James Straus Bruce E Cryder E Frederick Straub Jr Raymond T Bennett Anthony M Wilhoit B Todd Thompson Charles M Dixon Richard L Walter William C Travis Howard Neal Downing B M Westberry* RICHMOND VILLA HILLS David L Vish Brian Thomas Goettl Henry O Whitlow* James Walter Baechtold Kathie E Grisham Donald H Vish David R Irvin Mark C Whitlow David L Bohannon Dennis W VanHouten* Jeffrey E Wallace David Russell Marshall Melissa Kerley Yates James S Chenault T Morgan Ward Jr Ellen Lesley Miller Michael R Eaves WALTON David L Waterman* Mark Thomas Miller PAINTSVILLE Barbara Alison Emmons John R S Brooking* Irwin Gerald Waterman William E Savage II Donald L Jones Michael F Eubanks Alvin D Wax Bruce E Smith Jonathan C Shaw James T Gilbert WICKLIFFE Jan M West David William Thomas Jerry William Gilbert William Lewis Shadoan* Robert Kent Westberry John Matthew Tranter PARIS William Baxter Jennings* Joseph L White G Davis Wilson William T Jennings WILLIAMSBURG Helene Gordon Williams OWENSBORO Susan Dabney Luxon Benjamin K Davis Lively M Wilson* Frank Anthony Brancato PARK HILLS John Judson Patterson Laurence John Zielke Daniel M Burlew II Benjamin M Duncan Gregory Keith Puckett WINCHESTER Scott P Zoppoth Joseph W Castlen III Mark Allen Shepherd Julia Hylton Adams William G Craig Jr PEWEE VALLEY Daniel Allen Simons William R Pumphrey MADISONVILLE Candy Yarbray Englebert M Gene Snyder* James E Thompson John H Rompf Jr Dick Adams* William J Foreman Reuben G Walker Jr Robert L Rose Joe A Evans III James F Gordon Jr PIKEVILLE C Michael Weldon Richard L Frymire Jr John Sale Gordon Edward B Atkins OUT OF STATE Leif Christian Ratliff Julia H Gordon Charles J Baird SHELBYVILLE Anne N Awtrey Ross Thomas Turner* Maurice K Gordon II David Louis Baird Gregg Y Neal Michael H Baker Thomas E Turner Allen W Holbrook John H Baird Jeffrey Scott Bakst Morton J Holbrook Jr* Virginia Kirk Baird SHEPHERDSVILLE David Leo Beckman Jr MANCHESTER Edward L Johnson William J Baird III Thomas B Givhan Ann K Benfield Roy Glenn Collins Trafton Tommy Littlepage William Jesse Baird IV Elise Givhan Spainhour Howard C Berry Robert S Madden Shannon LeMaster Meyer Sam Allen Carter Jr John E Spainhour Jr John H Burrus Phyllis L Robinson Thomas J Meyer Sara May Caudill Charles R Burton Charles E Moore Donald Howard Combs SOMERSET James D Chittenden* MAYFIELD Jesse T Mountjoy Robert Paul Combs Charles C Adams* Nancy Jo Cotton David Lee Hargrove Jean Owen-Miller Steven Daniel Combs John B Adams Benjamin Cowgill R Scott Plain Jeffrey Dale Damron Norma B Adams David Curd MAYSVILLE John W Stevenson Russell H Davis Jr Elizabeth K Broyles Herman G Dotson* Delores Woods Baker R Michael Sullivan Howard Keith Hall William T Cain Diana Kay Douglas James L Clarke Ronald Michael Sullivan James Lincoln Hamilton Melinda G Dalton Henry Durham Charles L Kirk* Jeffrey Stuart Taylor Glenn Martin Hammond John Sanders Gillum Thomas Lee Feazell* Debra Suann Rigg George Thacker James W Herald III Robert E Gillum* Manley N Feinberg Ronald Lee Rigg James Simpson Watson Anita Parsons Johnson Benny E Ham* Gordon B Finley Jr James A Wethington II Gary C Johnson Rhonda G Hatfield-Jeffers Christy Lynn Fiori MCKEE William L Wilson* Edward Lee Jones Richard Wayne Hay Robert E Harding Jr* Sharon Kay Allen David L Yewell Paul E Jones Arden Winter Huff James G Harralson Rachel Wagner Kennedy Mark D Knight James D Heiple MIDDLESBORO PADUCAH Lois Anita Kitts Sarah Hay Knight James W Hendricks* Glenn W Denham* Natalie G Bash James Scott Kreutzer Jay D McShurley Lanny R Holbrook* Stacey Ann Blankenship Neal Smith Donald Bruce Orwin Eric Scott Horstmeyer MONTICELLO David C Booth Jonah Lee Stevens Brenda Popplewell Elizabeth Ann Horwitz Jeffrey Carl Hoehler James D Boswell Daniel P Stratton John G Prather Jr Harold K Huddleston Gorman Bradley Jr David C Stratton Larry Sword Gregory A Keyser MORGANFIELD Mark P Bryant Jim G Vanover Nicholas C A Vaughn Harry M Mack* Brucie W Moore Glenn David Denton Terri Smith Walters Daniel J Venters John Scott McGaw* J Quentin Wesley W David Denton Lawrence R Webster Jane Adams Venters Elizabeth U Mendel Lisa Hayden Emmons John Lewis D Payne Jr MOUNT VERNON Jonathan Freed PINEVILLE STAMPING GROUND Alice Graham Rhodes Jeffrey Thomas Burdette Edwin Spivey Gault Stephen C Cawood David C Short Michael A Ruh Jr Carl R Clontz Francis T Goheen* Susan C Lawson George D Schrader Willis G Coffey John Wm (Bill) Graves STANFORD David V Scott Jerry J Cox Gary B Houston PRESTONSBURG Robert R Baker James J Shannon Jr William D Gregory J William Howerton William G Francis James W Williams III* Robert E Spurlin Joseph E Lambert Theodore S Hutchins William S Kendrick R Lee Steers Jr William Darlos Reynolds David Lyle Kelly Earl Martin McGuire UNION James Gordon Stephenson Thomas J Keuler Benita Joy Riley Anthony W Frohlich Richard P Thomas MURRAY L Daniel Key John M Rosenberg David Wayne Martin Frank C Woodside III Gerald Lynn Bell Jackie M Matheny Jr Robert Allen Rowe Jr Henry L Stephens Jr William Donald Overbey* Bobby R Miller Jr Thomas M Smith *Deceased Fellow Len W Ogden Jr Burl W Spurlock

34 Bench & Bar November 2012 *

Supreme Court of Kentucky

IN IN RE: ORDER AMENDING RULES OF CRIMINAL PROCEDURE (RCr) RULES OF CIVIL PROCEDURE (CR) FAMILY COURT RULES OF PROCEDURE AND PRACTICE (FCRPP)

2012-10

______

The following rules’ amendments shall become effective January 1, 2013.

A. AMENDMENTS FOR THE RULES OF CRIMINAL PROCEDURE (RCr) (h) information relating to a defendant’s status as a military veteran may be shared with the Department of Veterans Affairs in order to facil- I. RCr 4.06 Duties of pretrial services agency itate the provision of services available to the defendant.

RCr 4.06 shall read: At the beginning of the initial interview with a representative of the pretrial services agency, the defendant shall be advised of the above The duties of a pretrial services agency authorized by the Adminis- uses of information supplied by the defendant or obtained as a result of trative Office of the Courts to serve the trial court shall include inter- information supplied by the defendant. viewing defendants eligible for pretrial release, verifying information obtained from defendants, making recommendations to the court as to III. RCr 4.20 Use of uniform schedule of bail whether defendants interviewed should be released on personal recog- nizance, identifying veterans, and any other duties ordered by the Section (1) of RCr 4.20 shall read: Supreme Court. When a defendant requests appointment of counsel, the Pretrial Release Officer shall, where practical, interview the defen- (1) The defendant may execute a bail bond in accordance with the dant, assist in preparing the affidavit of indigency set out in KRS uniform schedule of bail (Appendix A) for designated misdemeanors 31.120, and provide the affidavit to the court and the defendant. and violations without appearing before a judge. If a defendant chooses to execute a bail bond in accordance with the schedule without appear- II. RCr 4.08(b), (f), (g) and new section (h) Confidentiality of pretrial ing before a judge and proceeds to do so, that defendant waives his or services agency records her statutory right to be considered for other authorized methods of pre-trial release. Before said waiver is effective, the defendant must be Sections (b), (f), (g) and new section (h) to RCr 4.08 shall read: informed of his or her right to appear before a judge without unneces- sary delay, and to be considered for release on personal recognizance. Information supplied by a defendant to a representative of the pre- trial services agency during the defendant’s initial interview or subse- IV. RCr 5.22(2) Procedure upon failure to indict quent contacts, and information obtained by the pretrial services agency as a result of the interview or subsequent contacts, shall be Section (2) of RCr 5.22 shall read: deemed confidential and shall not be subject to subpoena or to disclo- sure without the written consent of the defendant except in the follow- (2) Final adjournment of a grand jury without its having indicted a ing circumstances: defendant who has been held to answer, pursuant to RCr 3.14(1), shall effect the defendant’s discharge from custody or, if the defendant is (b) information furnished by the defendant to the pretrial services free on bail that has not been forfeited, shall exonerate the bail and any agency and recorded on a completed interview form shall be furnished conditions thereon unless the grand jury refers the matter to the next to law enforcement officials upon request if the defendant fails to grand jury, which referral must be in writing to the circuit court. Money appear in court when required; or bonds deposited in lieu of bail shall be refunded upon such dis- charge. In any event, a defendant who has been held to answer, pur- (f) any person conducting an evaluation of the pretrial release pro- suant to RCr 3.14(1), for longer than sixty (60) days without having gram may have access to all completed interview forms upon order of been indicted shall be entitled to a discharge from custody. the Supreme Court. V. RCr 6.52 Warrant or summons upon indictment or information; (g) all information obtained from the defendant and all information issuance provided to the court shall be provided to the defendant’s attorney. RCr 6.52 Shall read:

November 2012 Bench & Bar 35 Upon the return of an indictment or the issuance of an informa- for the defendant. The court shall, for good cause, allow the attorney for tion, the clerk shall issue a summons for each defendant named the Commonwealth to file the motion late, grant a continuance of the instead of a warrant unless a warrant is requested by the attorney for trial or of any other proceedings, modify scheduling orders, or make the Commonwealth or directed by the court. Upon request of the other appropriate orders. attorney for the Commonwealth, the clerk shall issue more than one warrant or summons for the same defendant. The clerk shall deliver (C) Mental Examination; Authority to Order Examination; Procedures. the warrant or summons to a peace officer for execution or service. If If the defendant files a notice under Rule 8.07(1)(A), the court shall, a defendant fails to appear in response to the summons, a warrant upon the Commonwealth’s motion under Rule 8.07(1)(B), order the shall issue. defendant to be examined under KRS 504.070(3).

VI. RCr 7.24 (3) Discovery and inspection (D) Reports of Psychiatric or Psychological Examination. A report of a psychiatric or psychological examination ordered pursuant to Rule Section (3) of RCr 7.24 shall read: 8.07(1)(C))shall be prepared by the examiner designated to conduct the psychiatric or psychological examination. The report shall include – (3)(a) If the defendant requests disclosure under RCr 7.24(1)(b), upon compliance to such request by the Commonwealth, and upon (i) the defendant’s history; written request of the Commonwealth, the defendant, subject to objection for cause, shall permit the Commonwealth to inspect, copy, (ii) a description of the psychiatric, psychological, and medical or photograph any results or reports of physical or mental examina- tests that were employed and their results; and tions and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody, (iii) the examiner’s findings opinions and diagnosis as to or control of the defendant, which the defendant intends to introduce whether the defendant was insane at the time of the offense as evidence or which were prepared by a witness whom the defen- charged. dant intends to call at trial when the results or reports relate to the witness’s testimony. If the defendant requests disclosure of the Com- (E) Filing and Disclosing Results and Reports of Psychiatric or Psy- monwealth’s experts under RCr 7.24(1)(c), then upon written request chological Examination. The examiner designated to conduct the psy- by the attorney for the Commonwealth, the defense shall furnish to chiatric or psychological examination under Rule 8.07(1)(C) shall, the attorney for the Commonwealth a written summary of any expert immediately upon completion of the report, deliver it as directed in the testimony that the defense intends to introduce at trial. This summary referring order of the court. The court shall order the report to be filed must identify the witness and describe that witness’s opinions, the under seal and notice of the filing be given to all parties. bases and reasons for those opinions, and the witness’s qualifica- tions. (2) Mental Disease, Mental Defect or Other Mental Condition Bearing on Issue of Guilt or Issue of Punishment; Notice; Mental Examination. (b) If the defendant requests disclosure under Rule 7.24(2), upon compliance with such request by the Commonwealth, and upon motion (A) Notice by Defendant. A defendant who intends to introduce of the Commonwealth, the court may order that the defendant permit expert evidence relating to a mental disease or defect or any other the Commonwealth to inspect, copy, or photograph books, papers, doc- mental condition of the defendant bearing on – uments or tangible objects which the defendant intends to introduce into evidence and which are in the defendant’s possession, custody, or (i) the issue of guilt; control. (ii) the issue of punishment; or VII. RCr 8.07 Mental Issues (iii) the issue of guilt and the issue of punishment; New rule RCr 8.07 shall read: shall, not less than ninety (90) days before the date set for com- (1) Insanity Defense; Notice; Mental Examination. mencement of trial of the alleged offense, file a notice in writing of this intention with the clerk and serve a copy of the notice upon the (A) Notice by Defendant. A defendant who intends to assert a attorney for the Commonwealth and all other parties. The notice defense of insanity at the time of the alleged offense shall, not less shall specify whether the defendant intends to introduce expert evi- than ninety (90) days before the date set for commencement of trial of dence bearing on the issue of guilt, the issue of punishment or both the alleged offense, file a notice in writing of this intention with the such issues. The court shall, for good cause, allow the defendant to clerk and serve a copy of the notice upon the attorney for the Common- file the notice late, grant a continuance of the trial or of any other wealth and all other parties. The court shall, for good cause, allow the proceedings, modify scheduling orders, or make other appropriate defendant to file the notice late, grant a continuance of the trial or of orders. any other proceedings, modify scheduling orders, or make other appro- priate orders. (B) Motion by Commonwealth for Examination of Defendant. If the defendant files a notice under Rule 8.07(2)(A), the attorney for the Com- (B) Motion by Commonwealth for Examination of Defendant. If the monwealth may, within ten (10) days of the filing of that notice, file a defendant files a notice under Rule 8.07(1)(A), the attorney for the Com- motion with the clerk for the court to order the defendant to be exam- monwealth may, within ten (10) days of the filing of that notice, file a ined and serve a copy of the motion upon counsel for the defendant motion with the clerk for the court to order the defendant to be exam- and all other parties. The court shall, for good cause, allow the attorney ined under KRS 504.070 and serve a copy of the motion upon counsel for the Commonwealth to file the motion late, grant a continuance of

36 Bench & Bar November 2012 the trial or of any other proceedings, modify scheduling orders, or make (A) has introduced evidence of incompetency or incapacity to stand other appropriate orders. trial under Rule 8.06;

(C) Mental Examination; Authority to Order Examination; Procedures. (B) has introduced evidence requiring notice under Rule 8.07(1)(A); If the defendant files a notice under Rule 8.07(2)(A), the court may, or upon the Commonwealth’s motion under Rule 8.07(2)(B), order the defendant to be examined under procedures ordered by the court. The (C) has introduced evidence requiring notice under Rule 8.07(2)(A). order shall specify that the examination relates to a claim that defen- dant suffers, or has suffered, from a mental disease or defect or any (4) Failure to Comply with Rules 8.07(1) and 8.07(2). other mental condition of the defendant that bears on – (A) Defendant’s Failure to Give Notice or to Submit to Examination. (i) the issue of guilt; The court may exclude any expert evidence from the defendant on the issue of the defendant’s – (ii) the issue of punishment; or (i) sanity or insanity, if the defendant fails to give notice under (iii) the issue of guilt and the issue of punishment. Rule 8.07(1)(A) or to submit to an examination when ordered under Rule 8.07(1)(C); or (D) Reports of Psychiatric or Psychological Examination. A report of a psychiatric or psychological examination ordered pursuant to Rule (ii) mental disease, mental defect, or any other mental condi- 8.07(2)(C) shall be prepared by the examiner designated to conduct the tion bearing on the defendant’s guilt or the issue of punishment, if psychiatric or psychological examination. The report shall include – the defendant fails to give notice under 8.07(2)(A) or to submit to an examination when ordered under Rule 8.07(2)(C). (i) the defendant’s history; (B) Commonwealth’s Failure to Move for Examination. The court (ii) a description of the psychiatric, psychological, and medical may decline to order the defendant to be examined if the attorney for tests that were employed and their results; and the Commonwealth fails to file a motion under Rule 8.07(1)(B) or Rule 8.07(2)(B) for the defendant to be examined. (iii) the examiner’s findings, opinions and diagnosis as to whether: (5) Inadmissibility of Withdrawn Intention As to Which Notice Was Given Under Rules 8.07(1)(A) and 8.07(2)(A). (a) if the examination is ordered under Rule 8.07(2)(C)(i), whether the defendant is, or was at the time of the offense Evidence of an intention as to which notice was given under Rule charged, suffering from a mental disease, mental defect or 8.07(1)(A) or 8.07(2)(A), later withdrawn, is not, in any civil, or criminal, other mental condition bearing on the issue of guilt; administrative or other proceeding, admissible against the person who gave notice of the intention. (b) if the examination is ordered under Rule 8.07(2)(C)(ii), whether the defendant is, or was at the time of the offense VIII. RCr 8.16 Motions that may be made before trial charged, suffering from a mental disease, mental defect or other mental condition bearing on the issue of punishment; or RCr 8.16 shall read:

(c) if the examination is ordered under Rule 8.07(2)(C)(iii), A party may raise by pretrial motion any defense, objection, or whether the defendant is, or was at the time of the offense request that the court can determine without a trial of the general issue. charged, suffering from a mental disease, mental defect or other mental condition bearing on the issue of guilt and the issue of IX. RCr 8.20 Motion deadline; ruling on motion punishment. RCr 8.20 shall read: (E) Filing and Disclosing Results and Reports of Psychiatric or Psy- chological Examination. The examiner designated to conduct the psy- (1) Motion Deadline.The court may, at the arraignment or as soon chiatric or psychological examination under Rule 8.07(2)(C)(i) shall, afterward as practicable, set a deadline for the parties to make pretrial upon completion of the report, immediately deliver it as directed in the motions and may also schedule a motion hearing. referring order of the court. The court shall order the report to be filed under seal and notice of the filing be given to all parties. (2) Ruling on a Motion. The court shall decide every pretrial motion within a reasonable time before the date of trial unless it finds good (3) Inadmissibility of a Defendant’s Statements Made In Course of cause to defer a ruling. When factual issues are involved in deciding a Examination Under Rules 8.06, 8.07(1) and 8.07(2). motion, the court shall state its essential findings on the record.

No statement made by a defendant in the course of any examination B. AMENDMENTS FOR THE RULES OF CIVIL PROCEDURE (CR) conducted under Rules 8.06, 8.07(1) or 8.07(2) (whether conducted with or without the defendant’s consent), no testimony by an expert based on I. CR 45.01 (1) and (2) Form; issuance any such statement, and no other fruits of any such statement may be admitted into evidence against the defendant in any criminal proceeding Sections (1) and (2) of CR 45.01 shall read: except on an issue regarding mental condition on which the defendant:

November 2012 Bench & Bar 37 (1) Every subpoena shall state the court from which it is issued, the (2) These Rules shall be applicable to the procedure and practice in title of the action, the court in which the action is pending, and its civil all actions pertaining to dissolution of marriage; custody and child sup- action number; and the name, address, telephone number and e-mail port; visitation and timesharing; property division; maintenance; domes- address of the attorney or pro-se party causing the subpoena to be tic violence; paternity; dependency; neglect or abuse; termination of issued. Every subpoena shall command each person to whom it is parental rights; adoption; and status offenses, or any other matter directed to attend and give testimony and/or to produce designated exclusively within family law jurisdiction, except for any special statuto- documents or tangible things in that person’s possession, custody, or ry proceedings, which shall prevail over any inconsistent procedures control, or to permit inspection of premises, at the time and place set forth in these Rules. therein specified. II. FCRPP 2. Preliminary Matters. (2) The clerk or other authorized deputy shall issue a subpoena signed but otherwise in blank, to a party requesting it, who shall fill it in Sections (1), (3), (5) and (6) of FCRPP 2 shall read: before service. An attorney licensed to practice law in this state may also issue and sign a subpoena on behalf of the court. A command to (1) Original Pleadings. All original pleadings, including forms, in a produce documents or tangible things or to permit the inspection of dissolution action shall be signed by the preparer, filed with the clerk of premises may be included in a subpoena commanding attendance at a the court, and if applicable, shall include, unless otherwise ordered by deposition, hearing, or trial, or may be set out in a separate subpoena. the court, the following:

II. CR 45.03 (3) Service; Notice (a) A verified petition;

Section (3) of CR 45.03 shall read: (b) Proof of service;

(3) Before any subpoena is served, notice of that subpoena, except (c) A verified response, or a verified entry of appearance in lieu of a those issued for trial, shall be served on each party and any person or response; entity whose information is being requested. (d) Unless waived by the court pursuant to KRS 403.180(4)(b), a III. CR 52.01 When required; effect verified separation agreement;

CR 52.01 shall read: (e) The Final Verified Disclosure Statement;

In all actions tried upon the facts without a jury or with an advisory (f) A verified waiver of notice of final hearing; jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment; and in (g) A verified deposition or interrogatories for proof of the allega- granting or refusing temporary injunctions or permanent injunctions the tions of the petition if done without a hearing; court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not (h) A divorce education certificate;and necessary for purposes of review except as provided in Rule 52.04. Findings of fact, shall not be set aside unless clearly erroneous, and (i) A child support work sheet. due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a commissioner, to the (3) Preliminary Mandatory Disclosure. The AOC-238, Preliminary extent that the court adopts them, shall be considered as the findings Verified Disclosure Statement, shall be exchanged between the parties of the court. If an opinion or memorandum of decision is filed, it will be within 45 days of service of the petition on the respondent, and objec- sufficient if the findings of fact and conclusions of law appear therein. tions thereto shall be exchanged 20 days thereafter but the disclosures Findings of fact and conclusions of law are unnecessary on decisions of shall not be filed in the record unless ordered by the court or required motions under Rules 12 or 56 or any other motion except as provided by local rule. in Rule 41.02. (5) Status Quo Orders. Without limiting a party’s relief under CR IV. [CR 84 Forms] 65, upon notice and opportunity to be heard, a court may enter a status quo order regarding disposition of the marital estate. Any such order Deletion of CR 84 and attached forms: may be entered on the AOC-237. A status quo order may include but not be limited to the following: [The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of (a) Neither party shall, except as necessary to pay reasonable living statement which the rules contemplate.] expenses, incur unreasonable debt, sell, encumber, gift, bequeath or in any manner transfer, convey or dissipate any property, cash, stocks or other assets currently in their possession or in the control of another C. FAMILY COURT RULES OF PROCEDURE AND PRACTICE (FCRPP) person, company, legal entity or family member without permission of the court or an agreed order signed by both parties or their attorneys. I. FCRPP 1. Title and Scope. (b) Neither party shall allow the cancellation or lapse of any health, Section (2) of FCRPP 1 shall read: life, automobile, casualty or disability insurance currently covering themselves or a family member or change the named beneficiaries on

38 Bench & Bar November 2012

such policies prior to receiving permission of the court or filing an (a) That no answer or pleadings have been received by the moving agreed order signed by both parties or their attorneys. party or counsel;

(6) Case Management. (b) That the respondent was personally served and 20 days have elapsed since service, or that a warning order attorney was appointed, (a) Mediation. has filed a report and affidavit and that 50 days have elapsed since appointment of the warning order attorney; and, (1) The parties may agree to mediate at any time. After notice and opportunity to be heard and unless prohibited by KRS 403.036 (c) Shall include certification that the motion and notice of trial or (domestic violence), the parties may be ordered to mediate any issues submission has been served on the opposing party at the party’s last before further proceedings. known address; and if the party is on active military duty, that the pro- visions of the Servicemembers’ Civil Relief Act have been followed. (2) Within 10 days of a final mediation, if the parties have been unable to resolve all issues, the petitioner shall file a motion for a case (3) Matters Requiring a Trial. management conference or final hearing date, unless previously scheduled by the court. (a) If the parties do not reach an agreement on any or all issues, a trial shall be held, on motion, as set by the court. (b) Case Management Conference. (b) No later than 5 days prior to the trial, the parties shall file an (1) Unless notice is given to the court that a case is being medi- AOC-239, Final Verified Disclosure Statement, in the record if property ated, within 60 days of service of the petition upon the respondent, matters are in dispute at that trial; or the parties may file an affidavit the petitioner shall file a motion for a case management conference. that there are no changes in circumstance since the completion of the AOC-238, Preliminary Verified Disclosure Statement, if filed. (2) Both parties and their counsel shall attend the conference, unless otherwise ordered by the court. (c) A copy of AOC-239, Final Verified Disclosure Statement, or the affidavit in (b) above, together with any supporting documentation, shall (3) Each party shall file the following documents at least 7 days be provided to the opposing party15 days prior to trial unless otherwise prior to the conference: ordered by the court.

(i) Any related motions; and (4) Evidence and Exhibits.

(ii) Any stipulations or agreements reached. (a) A court-appointed expert’s report shall be in lieu of live testimo- ny, unless either party subpoenas the expert to testify or unless the (4) In the event of failure of a party or parties to appear at the court orders otherwise. The party who subpoenas the expert shall be conference, the court may, in accordance with its order, conduct a responsible for paying the expert’s fee for appearance at trial, unless hearing in which proof may be taken or the case dismissed, as the otherwise ordered by the court. court may determine appropriate. (b) In the trial order, the court shall order parties to exchange the III. FCRPP 3. Obtaining a Decree of Dissolution. list of exhibits to be submitted at trial. Absent good cause shown, fail- ure to provide an exhibit list may result in the exclusion of such exhibit FCRPP 3 shall read: at trial.

(1) Matters Not Requiring a Trial. (c) Originals of depositions, interrogatories or requests for admis- sions, shall not be filed in the court record unless offered as proof. The (a) If the parties reach an agreement on all issues, a decree of attorney who noticed the taking of a deposition, or propounded the dissolution may be obtained without a trial by filing a motion or interrogatories or requests for admissions, shall be the custodian of the agreed order to submit for decree of dissolution of marriage, and the record for the originals, and shall present them when directed by the parties shall further comply with any local rule requiring additional court or at the request of any party. filings. (5) Post-Decree Litigation. (b) A decree shall not be final until the original is signed by the court and entered by the clerk. A fee of $50.00 shall be paid by the movant in domestic relations cases reopened after 6 months from the entry of the decree for the (c) If the parties reach an agreement on individual issues short of purpose of modifying the decree. This does not include motions in 42 settling the entire case, the agreement, signed by both parties, may be U.S.C. Title IV-D cases for child support enforcement. The clerk shall submitted to the court for approval and entry. collect any fee upon the filing of the motion, unless the movant files a motion to proceed in forma pauperis. (2) Default cases. (a) Reopening for purposes of this rule means any motion for modi- In all cases of default, the motion to submit for decree shall state fication of an order filed more than 6 months after entry of the order. the following: A case is considered reopened until all matters in the motion are resolved.

November 2012 Bench & Bar 39 (b) Once a case is reopened and the fee is paid, another fee will not (3) Motions to Establish or Modify Permanent Maintenance be required unless 6 months or more have elapsed since entry of the order on the motion that re-opened the case. (a) All motions to establish or modify permanent maintenance shall be accompanied by the following: (c) This fee shall not be required for motions to enforce an order and which are so titled. (i) A statement from movant setting forth the amount of main- tenance requested. IV. FCRPP 4. Procedures Before the Domestic Relations Commissioner. (ii) Copies of the movant’s last three pay stubs or, if movant is Sections (1), (3) and (4) of FCRPP 4 shall read: self-employed, proof of the movant’s current income.

(1) In jurisdictions having no family court, the circuit judge may (iii) An affidavit setting forth movant’s monthly expenses and appoint a domestic relations commissioner, who shall serve at the income and the monthly income of the party against whom the pleasure of the court. The court may refer domestic relations matters motion is brought, if known. under KRS Chapter 403 to the domestic relations commissioner, except for domestic violence proceedings, contempt proceedings and injunc- (iv) The most recently filed federal and state income tax return. tive relief proceedings. Any local rules relating to domestic relations commissioners shall be approved by the Chief Justice and be uniform (b) The respondent shall file the above financial information with the in all divisions of circuit court within each county of each circuit. court and serve it on the opposing party 5 days prior to the hearing.

(3) The domestic relations commissioner shall hear all matters and (c) The notice of hearing accompanying a motion to establish or file a report promptly pursuant to KRS 454.350(2). Testimony may be modify permanent maintenance shall contain the following statement: heard orally before the commissioner or by deposition or interrogatory. “You must file with the court, at least 24 hours prior to the time of the All actions involving indigents shall be heard by the commissioner with- hearing, copies of your last three pay stubs, or if self-employed, proof out fee. Proceedings before the commissioner shall be recorded by of your current income and by an affidavit setting forth your monthly audio or video and a recording log shall be kept. The domestic relations expenses and income, and the most current federal and state tax commissioner shall file the recorded hearings and the recording log in returns.” the record with the clerk of the court. Transcriptions shall not be required for any purpose within this Rule. VI. FCRPP 6. General Provisions.

(4) The domestic relations commissioner shall have the authority to Sections (1), (2), (3) and new section (4) of FCRPP 6 shall read: make recommendations to the judge regarding motions for temporary orders of custody, support and maintenance. All temporary and final (1) The provisions of this section shall apply to all actions in which decrees and orders shall be entered by the court upon review of the there are disputes regarding custody, shared parenting, visitation or recommendations of the domestic relations commissioner as set forth support. below: (2) A parent or custodian may move for, or the court may order, one (a) Within 10 days after being served with a copy of the commis- or more of the following, which may be apportioned at the expense of sioner’s recommendations, any party may file written objections thereto the parents or custodians: with the court. After hearing the court may adopt the recommendations, modify them, or reject them in whole or in part, or may receive further (a) A custody evaluation; evidence or may recommit them for further hearing. (b) Psychological evaluation(s) of a parent or parents or custodians, (b) The circuit court shall sign any recommended temporary or or child(ren); post-decree order within 10 days after the time for filing exceptions has run unless a motion for a hearing on the exceptions has been filed. All (c) Family counseling; temporary recommendations of the domestic relations commissioner which become orders of the court shall be without prejudice and sub- (d) Mediation; ject to the court’s de novo review on final hearing. (e) Appointment of a guardian ad litem; (c) If the parties stipulate that the commissioner’s findings of fact shall be final, only questions of law arising upon the recommendations (f) Appointment of such other professional(s) for opinions or advice shall thereafter be considered. which the court deems appropriate; or,

(d) All final decrees shall be entered by the court within 20 days of (g) Such other action deemed appropriate by the court. submission if no exceptions have been filed. If exceptions have been filed, entry of the final decree shall occur within 10 days of disposition (3) The court or domestic relations commissioner shall conduct a of the exceptions. hearing on any motion for temporary custody, time sharing, visitation or child support, within 60 days of the filing of the motion except for good V. FRCPP 5. Maintenance. cause stated on the record. Nothing herein prevents the parties from entering into an agreement on these issues. Section (3) of FCRPP 5 shall read:

40 Bench & Bar November 2012

(4) In all proceedings for the dissolution of marriage in which chil- IX. FCRPP 9. Support. dren of the marriage are minors, or in any custody proceedings, the court may order the parents or custodians and children to participate in Sections (2), (3) and (4) of FCRPP 9 shall read: counseling or divorce education on a case-by-case basis, which shall be at the expense of the parties. (2) An order directing the payment of child support shall be entered utilizing the AOC-152, Uniform Child Support Order and/or Wage/Income VII. FCRPP 7. Custody. Withholding Order which is the form prescribed by the Administrative Office of the Courts pursuant to KRS 205.713 and KRS 205.802. This Sections (1), (2) and new Commentary of FCRPP 7 shall read: form shall be located on the Court of Justice website and shall include the following: (1) Unless otherwise ordered by the court, in any action in which the permanent custody or time-sharingof the child(ren) is in issue, each (a) The amount and frequency of the support payments; party shall, not less than 14 days prior to the day set for hearing, pro- vide the other party(ies) with a list of the names and addresses of every (b) That the payment shall be paid person and a short statement of the subject of their testimony, other than a parent or the child(ren) of the parents, expected to be called as a (i) By wage/income withholding, to begin immediately; or, witness, as well as a list of exhibits to be entered. (ii) If wage/income withholding is not ordered to begin immedi- (2) Relocation. ately for good cause shown, as ordered by the court and as direct- ed in KRS 403.215; or, (a) Before a joint custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-relocating (iii) According to a written agreement reached between both joint custodian. Either party may file a motion for change of custody or parties which provides for an alternative arrangement to time-sharing within 20 days of service of the notice if the custodians wage/income withholding. are not in agreement; or, the parties shall file an agreed order if the time sharing arrangement is modified by agreement. See Pennington v. (c) In non-IV-D cases the federal Income Witholding for Support Marcum, 266 S.W.3d 759 (Ky. 2008) and Wilson v. Messinger, 840 (IW0) form OMB 0970-0154, and in IV-D cases the state CS-89, shall S.W.2d 203 (Ky.1992). be utilized to notify the employer/income withholder of any wage/income withholding ordered by the court. (b) Before a sole custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-custodial par- (d) The party responsible for medical and other ordered expenses of ent. If the court ordered visitation is affected by the relocation, the non- the child(ren); and, custodial parent may file a motion contesting the change in visitation within 20 days of service of the notice. (e) The social security numbers of the parties and child(ren), CR 7.03 notwithstanding. Supreme Court Standing Committee on the FCRPP (2012) Com- mentary (3) Notice of any wage/income withholding shall be served upon the employer and the employee as follows: Pursuant to KRS 403.770, if the relocating custodian has an active Emergency Protective Order or Domestic Violence Order against the (a) In non-IV-D cases, the OMB 0970-0154 shall be accompanied other parent or custodian, the relocating custodian must not be by the underlying AOC-152. required to disclose to the other party the relocation destination. The court and clerks will strictly comply with the statutory mandates set (b) In IV-D cases, the CS-89 shall be utilized. forth in KRS 403.770. If the domestic violence action is not pending in the same circuit, the court may require the relocating custodian to dis- (4) Motions to Establish or Modify Child Support. close the relocation destination provided only if the location is filed under seal, with strict confidentiality maintained by the court and clerk, (a) A motion to establish or modify child support shall be accompa- and the location is not disclosed to the opposing party. nied by the following:

VIII. FCRPP 8. Time-Sharing/Visitation. (1) A completed child support guidelines worksheet.

Sections (1) and (2) of FCRPP 8 shall read: (2) Copies of the movant’s last three pay stubs or, if movant is self-employed, proof of the movant’s current income. (1) A parent shall be entitled to time-sharing/visitation as ordered by the court, which may be in accordance with the Model Time-Shar- (3) The most recently filed federal and state income tax returns. ing/Visitation Guidelines, unless otherwise agreed to by the parties or ordered by the court. (4) Verification of the cost of health insurance for the child(ren) only. (2) Model Time-Sharing/Visitation Guidelines are set forth in Appen- dix A to these Rules or other guidelines may be applied and set forth in (5) A notice of hearing accompanying a motion for child support local rules. which shall contain the following statement: “You must file with the Court, at least 24 hours prior to the time of the hearing, a completed

November 2012 Bench & Bar 41

child support guidelines worksheet and copies of your last three pay the child to submit to genetic tests in accordance with KRS 406.081 or stubs or, if self-employed, proof of your current income and the most 406.091unless an agreed order is entered. current federal and state tax returns.” (2) Within 30 days of receipt of the genetic report, the petitioner (b) The responding party is to similarly file this financial information shall file the original report with the court in support of a motion to dis- at least 24 hours prior to the hearing. miss, a motion for trial or a motion for summary judgment. This does not preclude prehearing conferencing in the interim which may extend (c) All parties shall exchange said information 10 days prior to the the 30 days by agreement or resolve the issues. hearing. (3) In those cases in which the genetic test report excludes the (d) In addition, counsel shall certify, prior to the hearing being held, defendant from the paternity of the child, the court, after the expiration that reasonable efforts were made to resolve all the issues in dispute. of 30 days from the date of the filing of the exclusionary report, shall enter an order of dismissal in favor of the defendant unless a motion X. FCRPP 14. Paternity Reopenings. for additional testing pursuant to KRS 406.091 is filed prior to the expi- ration of the 30 days. Sections (1), (2) and (3) of FCRPP 14 shall read: XII. FCRPP 17. Notice in Dependency, Neglect or Abuse Actions. (1) A fee of $50.00 shall be paid by the movant in paternity cases reopened after 6 months from the entry of the paternity judgment for the Section (1) and new section (2) of FCRPP 17 shall read: purpose of modifying any support, custody or visitation ordered. This does not include motions in 42 U.S.C. Title IV-D cases for child support (1) Judicial Notice. In making any determinations with regard to a enforcement.The clerk shall collect any fee upon the filing of the motion, child in a dependency or neglect or abuse action, the court may consid- unless the movant files a motion to proceed in forma pauperis. er the findings of fact and court orders from any other court proceeding in any other court file involving the child or the child’s parents or the (a) Reopening for purposes of this rule means any motion for modi- person exercising custodial control or supervision, if the court is aware fication of an order filed more than 6 months after entry of the order. A of such proceedings. To the extent that the court relies on such, the case is considered reopened until all matters in the motion are court shall include a copy of that material in the record. resolved. (2) Notice and Opportunity to be Heard. Prior to any review or per- (b) Once a case is reopened and the fee is paid, another fee will not manency hearing, the state child welfare agency shall inform the court be required unless 6 months or more have elapsed since entry of the of the name and address of the foster parents, pre-adoptive parents order on the motion that reopened the case. and any relatives who are providing care for the child. The clerk shall provide notice of any review or permanency hearing to all parties and (c) This fee shall not be required for motions to enforce an order to the child’s foster parents, pre-adoptive parents, and any relatives and which are so titled. who are providing care for the child. The foster parents, pre-adoptive parents or any relative who is providing care for the child shall have an (2) Nothing in this Rule shall preclude the district court from declin- opportunity to be heard and may be subject to cross examination but ing jurisdiction on custody and visitation and referring the action to the shall not be designated as a party to such a proceeding solely on the circuit court pursuant to KRS 406.051(2); nor shall this Rule preclude basis of such notice and right to be heard. an action for custody, visitation or support from being filed in the circuit court by a party after the entry of a judgment of paternity in district XIII. FCRPP 18. Service. court. In either event the appropriate filing fee shall be paid by the moving party, unless the movant/petitioner files a motion to proceed in Commentary of FCRPP 18 shall read: forma pauperis. Supreme Court Standing Committee on the FCRPP (2012) (3) In family court jurisdictions nothing in this Rule shall preclude Commentary the family court judge from ordering the custody, visitation and support matters in a paternity action be initiated in a circuit action. In such If a permanent custody motion is filed within a Dependency, Neglect instance, a new circuit civil petition shall be filed by the movant/peti- and Abuse (DNA) action pursuant to KRS 620.027, the movant shall tioner and the appropriate filing fee shall be paid unless in forma pau- ensure that personal service of the permanent custody motion has peris status is granted by the court. been perfected upon both parents and any other legal custodian, except as otherwise directed by the Uniform Child Custody Jurisdiction and XI. FCRPP 15. Genetic Testing. Enforcement Act (UCCJEA). Personal service shall be perfected in accordance with the Kentucky Rules of Civil Procedure, CR 4, et. seq. If FCRPP 15 shall read: said service has not been properly perfected in the DNA action, the court should deny the motion and require the movant to file a proper When paternity is an issue in any action, the court may order the petition for child custody pursuant to KRS Chapter 403. mother, child and the putative father to submit to genetic tests as follows: XIV. FCRPP 22. Orders from Hearings. (1) In a case in which paternity is denied or in which the parties request genetic testing, on motion made by any party, a pretrial order New section (5) and new Commentary of FCRPP 22 shall read: shall be entered by the court forth with which requires both parties and

42 Bench & Bar November 2012 (5) Verbal Approval or Stamped Signatures. No order in a depend- XVIII. FCRPP 29. Case Plan and Case Progress Reports. ency, neglect and abuse action may be entered on verbal approval or stamped signature. New section (4) of FCRPP 29 shall read:

Supreme Court Standing Committee on the FCRPP (2012) (4) The state child welfare agency shall provide the names and Commentary addresses of the child’s foster parents, pre-adoptive parents or relatives providing care to the child, court appointed special advocate, and foster Faxed or scanned original signatures and encrypted or otherwise care review board member assigned to the case with the case perma- secure digital signatures authorized by the Supreme Court have been nency plan or case progress report filed with the court on a form pre- deemed to be acceptable methods of signature for purposes of these scribed by the Administrative Office of the Courts. Rules. XIX. FCRPP 30. Reviews. XV. FCRPP 23. Continuances. Section (1), new section (2) and new Commentary of FCRPP 30 shall Section (1), new section (2) and new Commentary of FCRPP 23 shall read: read: (1) Permanent Placement Review. In addition to the annual per- (1) If the court grants an extension of time or a continuance for any manency hearing mandated by KRS 610.125, the court shall conduct a hearing other than the annual permanency hearing, it shall make writ- permanency progress review no later than 6 months after a child is ten or oral findings on the record that the continuance is necessary in placed in foster care, in the home of a non-custodial parent, or other the best interest of the child, for discovery or presentation of evidence person or agency, when that child was sixteen years of age or younger or witnesses, to protect the rights of a party, or for other good cause at the time of the filing of a dependency, neglect or abuse petition. shown. (2) Independent Living Review. In addition to the permanent (2) The annual permanency review hearing shall be conducted at least placement review and the annual permanency hearing, and when the annually and shall not be continued beyond 12 months from the place- child remains in foster care or committed to the state child welfare ment of the child in foster care for any reason, including good cause. agency, the court shall conduct an independent living review at least 6 months prior to the child turning 18 years of age to ensure that training Supreme Court Standing Committee on the FCRPP (2012) on independent living and other appropriate services have been includ- Commentary ed in the case plan and are being provided to the child.

Pursuant to 45 C.F.R. 1356.21(b)(2)(i), the state child welfare Supreme Court Standing Committee on the FCRPP (2012) agency must obtain a judicial determination that it has made reason- Commentary able efforts to finalize the permanency plan that is in effect (whether the plan is reunification, adoption, legal guardianship, placement with a With respect to FCRPP 30(1), if a permanent custody motion is filed fit and willing relative, or placement in another planned permanent liv- within a Dependency, Neglect or Abuse (DNA) action pursuant to KRS ing arrangement) within 12 months of the date the child is considered 620.027, the movant shall ensure that personal service (of the DNA to have entered foster care and at least every 12 months thereafter action) has been perfected upon both parents and any other legal cus- while the child is in foster care. Under 45 C.F.R. 1356.21(b)(2)(ii), if todian, except as otherwise directed by the Uniform Child Custody such a judicial determination is not made, the child becomes ineligible Jurisdiction and Enforcement Act (UCCJEA). Personal service shall be under title IV-E at the end of the month in which the judicial determina- perfected in accordance with the Kentucky Rules of Civil Procedure, CR tion was required to have been made, and remains ineligible until such 4, et. seq. If said service has not been properly perfected in the DNA a determination is made. action, the court should deny the motion and require the movant to file a proper petition for child custody pursuant to KRS Chapter 403. XVI. FCRPP 26. Appearances. XX. FCRPP 32. Venue and Petition. FCRPP 26 shall read: Sub-section (a) of section (2) for FCRPP 32 shall read: Any attorney appearing on behalf of a party in a dependency, neg- lect or abuse action shall file a written entry of appearance unless an (2) Petition. order appointing the attorney as guardian ad litem or court-appointed counsel has been entered. An attorney shall not withdraw from repre- (a) A separate petition shall be filed for each child and individual sentation except upon motion to withdraw granted by the court. case numbers shall be assigned by the clerk of the court in proceed- ings filed pursuant to KRS Chapters 199 and 625, and in the case of XVII. FCRPP 27. Records and Transcripts. siblings, shall be heard by the same judge.

Section (1) of FCRPP 27 shall read: XXI. FCRPP 33. Adoption.

(1) An electronic or stenographic record of interviews with children, Sections (2) and (3) of FCRPP 33 shall read: including a recording of any in-camera proceedings, shall be filed under seal with the clerk and may be made available to the parties or their (2) In the event of an uncontested adoption, a hearing shall be held counsel on motion and written order of the court. within 60 days of the filing of a request for a final hearing.

November 2012 Bench & Bar 43 (3) A continuance of any final hearing date shall not be granted XXIV. FCRPP 37. Review. except upon good cause shown. Annual permanency review hearings shall continue to be held in any dependency, neglect and abuse action FCRPP 37 shall read: as required by FCRPP 23 until finalization of the adoption. At any time during a status offense action, the court on its own XXII. FCRPP 34. Involuntary Termination. motion, or on motion of any interested person, may determine that a status matter is more appropriate as a KRS Chapter 620 proceeding Section (2) of FCRPP 34 shall read: and direct the state child welfare agency to investigate and/or provide services to the child and/or family; amend the petition pursuant to KRS (2) A continuance of any final hearing date shall not be granted 610.010(13) and order it served; or, require a new petition to be filed. except upon good cause shown. The annual permanency review hear- See also KRS 605.130(3). ings shall continue to be held in any dependency, neglect and abuse action as required by FCRPP 23 until permanency is achieved. XXV. FCRPP 39. Diversion.

XXIII. FCRPP 36. Post-Termination of Parental Rights Review. FCRPP 39 shall read:

FCRPP 36 shall read: Prior to the court issuing an order for a formal hearing or the county attorney requesting a formal hearing, the case shall be processed by If an order terminating parental rights is entered, a copy of the the court designated worker pursuant to KRS 610.030. order shall also be certified to the record in the underlying dependency, neglect and abuse case which shall be identified in the order. The clerk All sitting. All concur. of the court in the underlying dependency, neglect and abuse case shall docket the matter for a review hearing within 90 days from the date of the entry of the order of termination of parental rights and shall docket the matter as directed by the court at least annually thereafter until permanency is achieved.

44 Bench & Bar November 2012 lmick.qxd 11/6/12 10:05 AM Page 1

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KENTUCKY BAR NEWS Salmon P. Chase well as in other jurisdictions. He has People Working Cooperatively. authored a number of publications in the The Chase Exceptional Service College of Law areas of law, history, Award was presented to Mary A. Lepper and soccer; is a fre- ’99. She is the director quent lecturer; and has of Curriculum, By Wendy Lane served as a visiting Accreditation, and NKU Chase Advancement Coordinator law professor. In addi- Assessment for tion, he has received Northern Kentucky Chase Alumni Association Presents numerous honors and University. Starting Alumni Awards awards for his service when she was a stu- Sterling W. to the bench, bar, and dent at Chase, Lepper he Chase Alumni Association pre- Colvin community. Mary A. Lepper has devoted countless Tsented its annual alumni awards at The Chase Professional Achievement hours of her time over more than 12 the association’s Chase Alumni Award was presented to Sterling W. years working with Professor Ljubomir Luncheon on Oct. 5, 2012. Colvin ’95. She is a partner with Nacev to run the Chase Volunteer The Chase Lifetime Acheivement Dinsmore & Shohl LLP in the firm’s Income Tax Assistance Program (VITA) Award was presented to the Honorable Cincinnati office. Colvin draws on her and the Chase Tax Clinic. She also Anthony W. Frohlich experience as a litigator and more than served as director of the NKU Asset ’80. He serves as 15 years as a transactional attorney to Building Coalition until 2010. Circuit Judge for guide her clients through commercial During Lepper’s service with VITA, Kentucky’s 54th real estate matters, including the often the program has assisted individuals and Circuit. Judge Frohlich complex issues associated with acquisi- families in filing thousands of federal practiced law for 24 tions, dispositions, leasing, loans, and state tax returns, claiming millions years prior to taking restructuring, and commercial foreclo- of dollars in much needed tax refunds. the bench and also sures. She has represented a variety of She continues to volunteer with VITA. Hon. Anthony W. previously served as clients, including the owners of small Lepper and Nacev also established the Frohlich master commissioner, businesses, individual investors in com- NKU Low Income Taxpayer Clinic in domestic relations commissioner, and an mercial real estate, lenders of 1999, where Lepper now serves as assistant commonwealth’s attorney. He community-development construction director, assisting hundreds of low has held numerous positions with civic loans, and special servicers and lenders income taxpayers annually with federal and legal organizations, including presi- in troubled real estate matters. and state tax issues. She has been recog- dent of the Salmon P. Chase Inn of Colvin also serves as an outside advi- nized for her work by Centro de Court, president of the Chase Alumni sor to a number of clients, offering Amistad and on numerous occasions by Association, founding partner and board counsel and insight on general corporate the IRS. member of Chase’s Center for matters. She has been recognized by her The Chase Outstanding Recent Excellence in Advocacy, and board peers as a leader in commercial real Alumnus Award was presented to David member of the Chase College estate law and was selected for the M. Spaulding ’06. He Foundation. Cincinnati Academy of Leadership for is the director of Judge Frohlich was the originator of Lawyers®. She also currently serves as Business Development the felony mediation dockets that have a board member for The Carnegie and Legal Affairs for been adopted in the state of Kentucky as Visual and Performing Arts Center and Turner Construction Company. While at Turner, Spaulding has drafted, negotiated, David M. and executed over a Spaulding billion dollars in con- tracts, including some notable projects in the Northern Kentucky and Greater Cincinnati area such as the NKU Griffin Hall College of Informatics, the Great American Tower at Queen City Square in Cincinnati, and the restoration of Washington Park in Cincinnati, just to name a few examples. Prior to his career at Turner, Spaulding was a sole practitioner with a

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KENTUCKY BAR NEWS

caseload primarily focused on litigation. Center, Amar is often cited by the service. These are individuals who have He currently serves on boards for the Supreme Court and is a frequent expert been nominated by their academic unit Northern Kentucky Water District, witness in Congressional hearings. A and selected by a university committee. Northern Kentucky Chamber of former consultant to the television show This year only 12 faculty members were Commerce, St. Elizabeth Healthcare “The West Wing,” he has also discussed recognized from the entire campus for Foundation, Chase Alumni Association, constitutional issues on national televi- being outstanding in teaching, research, and Chase College Foundation. He is sion and radio programs. and service. So it is extraordinary that also a member of the Salmon P. Chase The Roy R. and Virginia F. Ray although we are a small academic unit, Inn of Court and is active in a number Distinguished Lecture Series is the pre- three faculty members from the of other charitable organizations. eminent lecture series at UK Law. Brandeis School of Law were among Established in 1977, the Ray Lecture the 12 honored. University of has featured outstanding jurists and pub- The recognition of these individuals lic figures discussing legal topics of highlights our longstanding and contin- Kentucky current interest for the past 35 years. ued commitment to service, skills, and College of Law scholarship. The Brandeis faculty mem- bers receiving the “Triple Crown” were Yale Law’s Akhil Amar Lectures at Professor Enid Trucios-Haynes (out- UK Law standing service), Professor Lars Smith he right to privacy. One person, one (who holds the Stallings Chair) (out- vote. The presumption of inno- standing teaching), and Professor Laura Tcence. Americans think of these Message from Interim Dean Susan Rothstein (who is also a Distinguished freedoms, and many more, as constitu- Duncan University Scholar) (outstanding schol- tional rights. But they can’t actually be n September, the University of arship). I also note with pride the found in the text of the Constitution. Louisville held a university-wide selection of Professor Grace Giesel to “While they’re not explicitly written Iannual event at which it recognizes out- the position of the Flexner Chair. All of in our Constitution, these things are standing faculty members for their these individuals represent a commit- part of America’s working constitu- contributions in teaching, research, and ment to service, skills, and scholarship. tional system — part of America’s unwritten Constitution,” says constitu- tional scholar Akhil Reed Amar, author of America’s Unwritten Constitution, The Precedents and Principles We Live By, published in September by Basic Books. Amar, Sterling Professor of Law and Political Science at Yale University, vis- ited the University of Kentucky on Tuesday, Oct. 9, to deliver the UK College of Law’s Roy R. and Virginia F. Ray Lecture in the College of Law Courtroom. Attendees were invited to join Amar for refreshments and hors d’oeuvres at a reception, where he answered questions and signed copies of his new book. Amar is the author of four books, including “America’s Constitution: A Biography,” which won the Silver Gavel Award from the American Bar Association, and “The Bill of Rights: Creation and Reconstruction,” which was awarded a Silver Gavel Certificate of Merit. A member of the American Academy of Arts and Sciences and a Senior Scholar at the National Constitution

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These honors also provide an opportu- practical skills into their traditional tion settings. In 2011, she received the nity for me to highlight how the work of courses. This requires our students to prestigious William A. Kaplin Award our faculty benefits not only those at the learn how to apply the knowledge they from Stetson University which recog- law school, but also the university, the have in actual settings. nizes a body of scholarship that has had legal community, and our larger society. Lars Smith recognizes the growing an impact on higher education policy. pressure on law schools to provide more She approaches scholarship as an Service practical training as law firms move away “advocate through education,” with the The name Louis Brandeis has long from associate training programs. He also goal that by knowing what the law been connected to the tradition of service. recognizes that many of our graduates go requires, appropriate policies, practices The legal profession is a service profes- directly into small firm or solo practice, and procedures can be put into place to sion. Enid Trucios-Haynes has a long where there is little or no training avail- avoid disputes. Her work is regularly record of service to the law school, the able. Smith teaches courses in the referenced by those in the practice, university, and the community. Most business area, intellectual property, and including by college and university recently she has given extraordinary serv- first year property. From writing simple attorneys throughout the country as well ice to the university in a variety of short assignments in property law, to as by national advocacy groups. capacities examining and developing uni- drafting 30 page limited liability com- While each of these individuals was versity wide personnel policies and pany operating agreements, his goal is to recognized for one area at the university grievance procedures. Her commitment have students take the legal rules they awards program, all have distinguished to governance and collaborative work is have learned in class and apply them in a records in all three areas – service, also carried out in her service at the law way that both reinforces the rule and teaching, and scholarship. Also exempli- school through her leadership on strategic teaches them the skills necessary to apply fying this broad record of distinction is planning, which played a key role in the those rules to solve real problems. Grace Giesel, who as an exemplary law school’s development and growth of Recently, he expanded his past experi- teacher and scholar in the area of con- the Law Clinic. Her service demonstrates ence with live client clinics by tract law and professional ethics, shares a commitment to social justice through developing a partnership with the College her knowledge as service to the legal her work on behalf of immigration issues, of Business that provides experiences in profession, regularly providing service both in the larger community and at the transactional business law that will help to the KBA on issues of professional law school. She does this through teach- prepare them to be ready to be effective responsibility. This record of distinction ing and public service externship counselors and advocates for their clients was recognized by her selection to fill supervision of a clinic working with from the moment they graduate. His phi- the Flexner Chair. immigrants in ensuring protection of their losophy is that skills training is These four individuals are only a few rights. Most recently, she has provided transferable, so his work with students to of our extraordinary faculty members, service by highlighting for the law school write a professional client letter in his who not only serve as teachers and concerns regarding undocumented youth. trademark class should help the student in scholars at the law school, enlightening Trucios-Haynes carries this expertise to his or her chosen area of specialization. our students, but who regularly share coaching the national Immigration Moot their knowledge and expertise with all Court competition, including coaching Scholarship of our communities (university, the winning team in 2010 and a finalist The recent debates on the law school Louisville, Kentucky, national, and team in 2008. Students learn from the accreditation standards have included international). We invite you to call experiences she brings through her serv- discussion of the role of tenure and upon these four faculty members and ice. In sum, our students learn not only scholarship and how accreditation should upon all of us to be of service to the from what she teaches in the classroom, reflect that. At the Brandeis School of members of the Kentucky Bar. but by her example of service. Law, we believe that scholarship plays an important role in developing ideas, Skills informing debate and litigation argu- The role of a teacher is not only to ments, and focusing on policy at the transmit knowledge, but to teach skills governmental and institutional level. This to students. Law professors have long past year, Brandeis law school faculty engaged in the traditional role of teach- members produced over 70 publications ing students to think like a lawyer – to on a range of topics. analyze cases, to read and interpret These works included the scholarship statutes and regulations, and to solve of Laura Rothstein. Her scholarship problems. They have a long record of covers the range of disability issues and Brandeis School of Law faculty members teaching basic research and writing has been recognized as important in the received University Distinguished Faculty skills. In recent years our faculty mem- development of policy for students and Awards for Service (Enid Trucios-Haynes), Scholarship (Laura Rothstein) and Teaching bers have focused more on infusing others with disabilities in higher educa- (Lars Smith).

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SUMMARY OF MINUTES Program and various awards given by • President Myers reported that he KBA BOARD OF GOVERNORS the Division at their annual meeting. planned to have a reception at several MEETING Wright reported that her agenda will of the upcoming KLU programs with JULY 19, 2012 include requiring every district and at- the local bar presidents, local judges, large representative to make a public bar presidents and KBA Board of The Board of Governors met on Friday, presentation in their community to Governors’ representatives to continue July 19, 2012. Officers and Bar promote the YLD programs. the efforts of the local outreach pro- Governors in attendance were, President • President Myers reported that he gram in seeking input on how the D. Myers; Vice President B. Johnson; appointed KBA Past President Charles association can better serve the attor- Immediate Past President M. Keane; E. English, Jr., of Bowling Green as neys across the state. Young Lawyers Division Chair J. the president’s designee on the • Executive Director John Meyers Wright. Bar Governors 1st District – S. Kentucky Bar Foundation Board of reported that there were 2,048 atten- Jaggers; Bar Governors 2nd District – Directors for a one year term ending dees at the 2012 Annual Convention T. Kerrick, R. Sullivan; 3rd District – R. on June 30, 2013. held in Louisville on June 6-8 and it th Hay, G. Wilson; 4 District – D. • President Myers reported that was a financial success. th Ballantine, D. Farnsley; and 7 District Immediate Past President Margaret E. • Approved the Bylaws of the Elder – M. McGuire. Officers and Bar Keane of Louisville will serve as the Law Section. Governors absent were: President-Elect past president designee on the • Approved procedures for KBA internal T. Rouse and Bar Governors A. Britton, Kentucky Bar Foundation Board of media policy and the instructions for J. Freed, W. Garmer, D. Kramer, B. Directors for a one year term ending observers to public arguments before Rowe and S. Smith. on June 30, 2013. the Board of Governors. • President Myers reported that he • Ratified the email vote regarding the In Executive Session, the Board heard a appointed President-Elect Thomas L. nominees for the Judicial Nominating report from the Search Committee on Rouse of Erlanger as the president’s Commission. Chief Bar Counsel. The following offi- designee on the IOLTA Board of • Ratified the email vote approving OnQ cers and bar governors participated by Trustees for a one year term ending on Productions as the KBA’s AV provider. telephone conference: Vice President T. June 30, 2013. • Meyers reported that the KBA is now Rouse and Bar Governors A. Britton, J. • President Myers reported that the capable of accepting dues payments Freed, D. Kramer, B. Rowe and S. Executive Committee has appointed on-line and that the announcement to Smith. Robert C. Ewald of Louisville, George the membership was made before the E. Long II of Benton and Jerry D. end of the year. Meyers reported that In Regular Session, the Board of Truitt of Lexington to serve on the the dues statements would still need to Governors conducted the following Special Conflicts Committee for be mailed as a result of time. business: another one year term ending on July However, moving forward there 1, 2013. should be a substantial number of • Heard a status report from 2013-2014 • Approved the recommendation of members who will take advantage of Budget & Finance Committee, members to serve on the following on-line payment and it will not be nec- Kentucky Lawyer Assistance Program Supreme Court Committees on behalf essary to mail as many paper form (KYLAP), Office of Bar Counsel and of the Board of Governors: Civil dues statements. Task Force on Communications. Rules Committee – David V. Kramer • Young Lawyers Division Chair Jackie of Crestview Hills; Supreme Court Sue Wright reported that the YLD’s Rules Committee – Thomas L. Rouse To KBA Members biggest accomplishment this year was of Erlanger and Criminal Rules Do you have a matter to discuss launching their newly designed web- Committee – William E. Johnson of with the KBA’s Board of Governors? site. Wright also reported that the Frankfort. Board meetings are scheduled on YLD conducted the “U@18” presenta- • Approved the appointment of January 18-19, 2013 tions in high schools throughout the Douglass Farnsley of Louisville as the March 15-16, 2013 state with the new video funded by a 2013 Annual Convention Planning To schedule a time on the Board’s agenda grant from the Kentucky Bar Committee chair and Richard Hay of at one of these meetings, please contact John Meyers or Melissa Blackwell Foundation. Wright also reported on Somerset as the 2013 Annual at (502) 564-3795. the following activities: Lawyers as Convention CLE Program Committee Leaders Program, Why Choose Law chair. November 2012 Bench & Bar 49 Bar News_nov.qxd 11/6/12 9:09 AM Page 50

KENTUCKY BAR NEWS Thomas H. Glover to serve as Chief Bar Counsel of the Kentucky Bar Association he Kentucky Bar Association Vietnam. Commissioned as a 2nd frequent speaker at the KBA’s Kentucky (KBA) is pleased to welcome Lieutenant, Glover was awarded the Law Update, a series of continuing legal LexingtonT attorney Thomas H. Glover Bronze Star for achievement and a education opportunities held annually in to serve as Chief Bar Combat Infantry Badge for commanding nine locations across the state, and has Counsel. The appoint- his infantry company under fire when the given seminars on legal ethics, contract ment became effective remaining company officers were inca- disputes, arbitration, civil litigation, and Oct. 1, 2012. pacitated from their wounds. trial tactics. A native of Nashville, Glover has advocated cases before A member of the American Bar Tenn., Glover has been the U.S. District Courts in the Eastern Association, the Kentucky Justice an attorney in private and Western Districts of Kentucky, the Association, and the Kentucky Defense practice and a resident Sixth Circuit Court of Appeals, and the Council, Glover is also a trained and Thomas H. of Lexington since United States Supreme Court. He is a qualified national panelist for the Glover 1979. He received his former president of the Fayette County American Arbitration Association’s con- B.A. from Peabody College and attended Bar Association, where he served seven struction industry dispute resolution Vanderbilt University and Memphis years on its board of directors. section. He has been an arbitrator, State. Glover attended the University of Additionally, he completed two terms umpire, and mediator in many private Louisville Louis D. Brandeis School of on the Judicial Nominating Commission commercial, residential and industrial Law on the GI bill after service in for the 22nd Circuit. Glover has been a construction and business disputes. United States Postal Service Statement of Ownership, Management, and Circulation

Publication Title: The Bench & Bar. Publication Number: 1521-6497. (2) Free or Nominal Rate In-County Copies included on PS Filing Date: September 18, 2012. Form 3541: 0 The Bench & Bar is published Bi-monthly by the Kentucky Bar (3) Free or Nominal Rate Copies Mailed at Other Classes Association, 514 West Main Street, Frankfort, KY 40601-1812, (502) Through the USPS: 74 564-3795. Number of issues Published Annually: Six. Annual (4) Free or Nominal Rate Distribution Outside the Mail: 18 Subscription Price: $20.00. Contact Person: Shannon H. Roberts. The e. Total Free or Nominal Rate Distribution: 92 General Business Office of the Publisher is at the Kentucky Bar f. Total Distribution: 17,308 Association, 514 West Main Street, Frankfort, KY 40601-1812. The g. Copies not Distributed: 76 Full Names and Complete Mailing Addresses of Publisher, Editor, and h. Total: 17,384 Managing Editor are: Publisher, John D. Meyers, Kentucky Bar i. Percent Paid: 99% Association, 514 West Main Street, Frankfort, KY 40601-1812; Editor, Frances Catron Cadle, Kentucky Bar Association, 514 West Main No. Copies of Single Issue Published Nearest to Filing Date Street, Frankfort, KY 40601-1812; Managing Editor, Shannon H. a. Total Number of Copies: 17,500 Roberts, Kentucky Bar Association, 514 West Main Street, Frankfort, b. Paid Circulation (By Mail and Outside the Mail) KY 40601-1812. (1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 17,341 The Owner of the publication is the Kentucky Bar Association, 514 (2) Mailed In-County Paid Subscriptions Stated on PS Form West Main Street, Frankfort, KY 40601-1812. There are no Known 3541: 0 Bondholders, Mortgagees, and Other Security Holders Owning or (3) Paid Distribution Outside the Mail Including Sales Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Through Dealers and Carriers, Street Vendors, Counter Other Securities. Sales, and Other Paid Distribution Outside USPS: 0 (4) Paid Distribution by Other Classes of Mail Through the The Tax Status Has Not Changed During Preceding 12 Months. USPS: 0 c. Total Paid Distribution: 17,341 Publication Title: Bench & Bar d. Free or Nominal Rate Distribution (By Mail and Outside the Issue Date for Circulation Data Below: July 2012 Mail) ______(1) Free or Nominal Rate Outside-County Copies included on Extent and Nature of Circulation PS Form 3541: 0 (2) Free or Nominal Rate In-County Copies included on PS Average No. Copies Each Issue During Preceding 12 Months: Form 3541: 0 a. Total Number of Copies: 17,384 (3) Free or Nominal Rate Copies Mailed at Other Classes b. Paid Circulation (By Mail and Outside the Mail) Through the USPS: 13 (1) Mailed Outside-County Paid Subscriptions Stated on PS (4) Free or Nominal Rate Distribution Outside the Mail: 46 Form 3541: 17,216 e. Total Free or Nominal Rate Distribution: 59 (2) Mailed In-County Paid Subscriptions Stated on PS Form f. Total Distribution: 17,400 3541: 0 g. Copies not Distributed: 100 (3) Paid Distribution Outside the Mail Including Sales h. Total: 17,500 Through Dealers and Carriers, Street Vendors, Counter i. Percent Paid: 99% Sales, and Other Paid Distribution Outside USPS: 0 (4) Paid Distribution by Other Classes of Mail Through the Publication of Statement of Ownership for a general publication is USPS: 0 required and will be printed in the November 2012 issue of this publi- c. Total Paid Distribution: 17,216 cation. d. Free or Nominal Rate Distribution (By Mail and Outside the Mail) I certify that all information furnished is true and complete. (1) Free or Nominal Rate Outside-County Copies included on John D. Meyers, Publisher, September 17, 2012 PS Form 3541: 0

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KENTUCKY BAR NEWS Volunteers needed to assist children in foster care Jamie Bergman or the Department of in Bracken, Campbell, Kenton and Mason counties Family and Juvenile Services to get information about other CFCRBs. Citizen Foster Care Review Board Cabinet for Health and Family Services Approximately 800 volunteers across needs volunteers to help Kentucky’s files on children placed in out-of-home the state serve as members of the children care and work with the cabinet and Kentucky Citizen Foster Care Review By Jamie Neal courts on behalf of the state’s foster chil- Board. The boards operate within the Administrative Office of the Courts dren. The volunteer reviewers help Division of Dependent Children’s ensure that children receive the neces- Services of the Administrative Office of itizen Foster Care Review Boards sary services while in foster care and are the Courts in Frankfort. As the opera- that serve Bracken, Campbell, ultimately placed in permanent homes. tions arm for the state court system, the CKenton and Mason counties are seeking The CFCRBs for Bracken, Campbell, AOC supports the activities of nearly volunteers to make a difference in the Kenton and Mason counties meet 3,300 court system employees and 403 lives of local children in foster care. monthly in the Northern Kentucky area. elected justices, judges and circuit court Volunteers are needed to review cases Meeting schedules vary by board and clerks and executes the Judicial Branch of children placed in foster care because there is a need for volunteers during the budget. of dependency, neglect and abuse to day and in the evening. ensure these children are placed in safe, All volunteers must complete a six- For more information, contact: Jamie Bergman permanent homes as quickly as possi- hour initial training session and consent Family Services Coordinator ble. Volunteers are not required to reside to a criminal record and central registry Northern Kentucky CFCRB in the county where a board meets. check. A recommendation is then made Administrative Office of the Courts The Kentucky General Assembly cre- to the chief judge of the District Court 859-334-3245 or ated the Citizen Foster Care Review or Family Court for appointment. [email protected] Board, or CFCRB, in 1982 as a way to Individuals who would like to volun- Or decrease the time children spend in fos- teer but are not available for the The Department of Family and Juvenile Services at 800-928-2350 ter care. CFCRB volunteers review aforementioned meetings may contact In Memoriam As a final tribute, the Bench & Bar publishes brief memorials recognizing KBA members in good standing as space permits and at the discretion of the editors. Please submit either written information or a copy of an obituary that has been published in a newspaper. Submissions may be edited for space. Memorials should be sent to [email protected]. David Blair Allen Edward Brian Davis JeRhonda Myrisha Lynem Versailles Louisville Lexington Died: Aug. 18, 2012 Died: Aug. 29, 2012 Died: May 10, 2012 David Michael Andrew George P. Deeb Jr. Mark Louis Miller Crescent Springs Louisville Louisville Died: Sept. 13, 2012 Died: March 12, 2012 Died: Dec. 21, 2011 Richard W. Born Edsel T. Jones Larry D. Raikes Danville Winchester Bardstown Died: Sept. 7, 2012 Died: Dec. 17, 2011 Died: Aug. 31, 2012 James M. Collier Eddie C. Lovelace Harry David Rankin Elizabethtown Albany Edgewood Died: Sept. 3, 2012 Died: Sept. 17, 2012 Died: Aug. 26, 2012 Paul D. Cowden Alan Robert Lovesee Mary Gail Robinson Mount Sterling Rockville, MD Frankfort Died: Sept. 23, 2012 Died: Sept. 1, 2012 Died: Aug. 27, 2012 Stephen Lance Craig Harold A. Luersen Avery L. Stanley Louisville Newport Titusville, FL Sept. 25, 2011 Died: March 17, 2012 Died: Aug. 28, 2012

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KENTUCKY BAR NEWS Supreme Court law clerk Rebekkah Bravo Rechter receives Law-Related Education Award By Jamie Neal Administrative Office of the Courts

ebekkah Bravo Rechter, who serves as a law clerk for Supreme Court RJustice Bill Cunningham, has received a 2012 Law-Related Education Award for her work with high school students through the Kentucky Bar Association’s Young Lawyers Division. Justice Cunningham nominated Rechter for the award and presented it to her in the Supreme Court Courtroom at the state Capitol in August. The prestigious Law-Related Education Award honors individuals who are committed to educating youth and professionals about the fundamental principles of the Kentucky Constitution. The Kentucky Court of Justice has pre- sented the Law-Related Education Award since 1990. “Having worked closely with Supreme Court Justice Bill Cunningham poses with Rebekkah Bravo Rechter, who serves as his law clerk, after presenting her with a 2012 Law-Related Award. Justice Cunningham nominated Rebekkah over the past five years, I am her for the award and presented it to her in the Supreme Court Courtroom at the state Capitol very impressed with her ability to multi- in August. task,” Justice Cunningham said in which young lawyers visit high school placed sixth out of 31 teams in the 2012 nominating Rechter. “Her intellect, senior classrooms to discuss the legal Kentucky High School Mock Trial insight, writing skills and research abili- rights and responsibilities of students Tournament and third out of 28 teams in ties are invaluable. The decisions of the reaching the age of majority. Topics the 2011 tournament. She also works Kentucky Supreme Court as well as my include the rights and responsibilities of with the YMCA Kentucky Youth own work have been tremendously employees, spouses, parents, homeown- Assembly’s Supreme Court Program, a enhanced through her efforts. On a per- ers and renters, voters, drivers and competition in which high school stu- sonal note, Rebekkah has performed her consumers. The program includes a 10- dents prepare briefs and conduct mock duties while balancing a dynamic pro- minute video to help bring the topics to oral arguments in a moot court setting. fessional career with a growing family. I life for students. Since the program’s This year, Rechter assisted the YMCA cannot imagine anyone more deserving inception in 2007, presentations have in overhauling the program. of this award.” been made in more than 57 counties for As the Young Lawyers Division chair As a member of the Kentucky Bar more than 6,000 students. for 2011-2012, Rechter has focused her Association’s Young Lawyers Division, Rechter has coached the Saint Xavier public service on law-related education, Rechter created the U@18 program in Mock Trial team for six years. The team Justice Cunningham said. Throughout the bar year, she has provided YLS members with opportunities to work Save the Date with middle and high school students. Her goal is to encourage civic participa- KBA 2013 Annual Convention tion by young people and foster an interest and pride in the legal profes- June 19-21, 2013 sion, particularly for students of diverse backgrounds, Justice Cunningham said. Galt House Hotel She has achieved this through the U@18 program, the ABA’s Why Louisville, Ky Choose Law program and the Kentucky Youth Assembly, he said.

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KYLAP HOSTS RECOVERY MEETINGS IN THREE LOCATIONS he Kentucky Lawyers Assistance bring your own coffee. dents, lawyers and judges who are Program continues to offer The Lexington meeting is held 7:30 already involved or who are interested weekly,T one-hour meetings in a.m., on Wednesdays at the Alano in a 12-step program of recovery, Lexington, Louisville and Northern Club, 370 East Second Street. Coffee including but not limited to Alcoholics Kentucky. The Northern Kentucky and drinks are available for purchase Anonymous, Narcotics Anonymous, Lawyers in Recovery meeting is held beginning 7 a.m. The Louisville meet- Overeaters Anonymous and Al-Anon. 7:30 a.m., on Tuesdays at Lakeside ing is held 7:30 a.m., on Thursdays at Come meet other attorneys and network. Christian Church, 195 Buttermilk Pike, Dish on Market, 434 W. Market Street All meetings and contacts are confiden- Lakeside Park, (Erlanger). The church (formerly the Delta Bar & Lounge). tial. SCR 3.990. For additional is located off I-75 exit 186 for Coffee, pastries and a full breakfast information, please visit www.kylap.org, Kentucky 371/ Buttermilk Pike. The are available beginning 7 a.m. call (502) 564-3795, ext. 266, or email facility will open at 7:15 a.m. Please All meetings are open to law stu- [email protected]. KLYAP OFFERS NEW SUPPORT/COUNSELING GROUP he Kentucky Lawyers Assistance Program is pleased to son. Insurance can be filed for possible reimbursement but is announce that Bradford Health Services and The not required to participate. Those who wish to pay privately TInnerView of Louisville will begin offering a Lawyers with may do so. A mental health assessment is required for partic- Depression support/counseling group. The meetings will take ipation. Assessments may be provided by your health care place 6-7:30 p.m., every Monday at The InnerView at 4229 provider, or may be performed by the professionals at The Bardstown Road, Louisville. The group, which will be led by Inner View. Lawyers from around the state are invited to par- certified mental health professionals, will serve Kentucky ticipate in this wellness opportunity. For more information, law students, lawyers and judges who suffer with depression contact Kathy at the InnerView office at (502) 499-8010 or or other mental health issues. The weekly cost is $40 per per- the KYLAP office at (502) 564-3795. KYLAP Contact Information KBA Office phone: 502-564-3795 E-mail: Yvette Hourigan, Director [email protected] Ashley Beitz, Assistant to Director [email protected] Address: P. O. Box 1437, Frankfort, KY 40602 KYLAP Web: www.kylap.org ALL CONTACT WITH KYLAP IS CONFIDENTIAL S.C.R. 3.990

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CERTIFICATION OF CANVASSING BOARD FOR BAR MEMBER, SPECIAL ELECTION FOR THE 19TH JUDICIAL CIRCUIT NOMINATING COMMISSION

Pursuant to the provisions of Section 118 of the Kentucky Constitution and SCR 7.040(6), a duly appointed canvassing board, on September 25, 2012, met in the Office of the Executive Director of the Kentucky Bar Association, and tabulated ballots for the special election as reflected above. Pursuant to the provisions of SCR 7.030(11), the following candidate for the designated commission received the indicated number of votes.

19th JUDICIAL CIRCUIT

Marvin W. Suit, 207 Court Square, Flemingsburg, KY………………………………18

Certified as true and correct Election Results Pursuant to SCR 7.030(11), this 25th day of September 2012.

/s/ Karen Cobb Chairman

RE: CERTIFICATION OF CANVASSING BOARD FOR BAR MEMBERS, SPECIAL ELECTIONS FOR THE 40TH JUDICIAL CIRCUIT NOMINATING COMMISSION

Pursuant to the provisions of Section 118 of the Kentucky Constitution and SCR 7.040(6), a duly appointed canvassing board, on October 23, 2012, met in the Office of the Executive Director of the Kentucky Bar Association, and tabulated ballots for the special election as reflected above. Pursuant to the provisions of SCR 7.030(11), the following candidates for the designated commission received the indicated number of votes.

40th JUDICIAL CIRCUIT

Nicholas A. Carter, 123 Orchard Ln, Tompkinsville, KY……………………………11

Certified as true and correct Election Results Pursuant to SCR 7.030(11), this 23rd day of October 2012.

/s/ Karen Cobb Chairman

November 2012 54 Bench & Bar WhoWhatWhenWhere_Nov12.qxd 11/6/12 9:59 AM Page 55

WHO, WHAT, WHEN & WHERE ON THE MOVE William M. Cox, Jr., is pleased to izes in the area of business law and has announce the founding of his law prac- experience in business transactions, Stites & Harbison, tice, the Law Office of William M Cox state and federal court litigation, PLLC, has named Jr., PLLC. The practice is located at employment disputes and administrative Jennifer Landrum 145 East Center Street, Suite 1B in proceedings before Kentucky’s Energy Elliott as chair of the Madisonville, KY 42431. The firm has a and Environment Cabinet. firm’s Health Care general practice scope, including civil Service Group. Elliott litigation, criminal defense, estate plan- Patrick F. Nash and Brandon W. succeeds Charles J. ning and probate, and real estate. Marshall proudly announce the forma- (Mike) Cronan IV, Having served one term as mayor of tion of Nash Marshall, PLLC. The Jennifer Landrum who has served as the Madisonville and two terms on the firm, located at 129 West Short Street, Elliott service group chair for Madisonville city council, Cox has a Lexington, Ky., will focus on criminal nearly a decade. Elliott special interest in the areas of municipal defense and the representation of pro- is a member (partner) of the firm. She is law and management, open records, fessionals accused in disciplinary based in the Louisville, office and election law, and government affairs. actions, such as physicians before the focuses her practice on regulatory and Prior to beginning his term as mayor, he Board of Medical Licensure, attorneys transactional health care law. She is a practiced in the law firm of Whitfield & during ethics inquiries, and pharmacists frequent author and lecturer on health Cox, PSC (formerly Whitfield & being reviewed by the Board of care topics for both national and local Calvert, PSC). He received his B.A. Pharmacy, among others. Marshall organizations. She was named to the from the University of Kentucky in spent the past five years in the United 2010 Partners in Health Care by 1991 and his J.D. from the University of States Attorney’s Office for the Eastern Business First for her vital work for the Louisville Louis D. Brandeis School of District of Kentucky, where he prose- health care industry and was named to Law in 1999. cuted matters including mortgage and the 2011 “Forty under 40” list also by healthcare fraud, kickbacks, banking Business First. Governor Steven L. Miller Wells is crimes, computer offenses, crimes Beshear appointed her to serve on the pleased to announce against children, and violent/firearm Board of Trustees of the Kentucky that Chris offenses. He most recently served as the Retirement Systems in 2009 and reap- Rambicure has joined director of financial litigation and coor- pointed her in 2012. She has served as the firm. Prior to his dinated the U. S. Attorney’s mortgage chairman of the Kentucky Retirement work as an associate, fraud and sex offender registration ini- System Board (2011-2012); currently he served as tiatives. Marshall is a graduate of chairs both the Retiree Health and Legal, intern/law clerk for Centre College and the University of Compliance & Governance Committees, Chris Rambicure Hon. James E. Keller, Kentucky College of Law. Nash has and also sits on both the Audit and Justice of the been a solo practitioner for the past two Investment Committees of the board. Kentucky Supreme Court and special- decades. His practice has always

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Goldberg Simpson, LLC 9301 Dayflower Street Prospect, Kentucky 40059 (502) 589-4440

November 2012 Bench & Bar 55 WhoWhatWhenWhere_Nov12.qxd 11/8/12 9:08 AM Page 56

WHO, WHAT, WHEN & WHERE focused on criminal law, with particular almost 30 years. He is a fellow of the the increasing number of vacant and emphasis on complex matters and fed- American College of Trust and Estate abandoned properties. Muething was pre- eral criminal defense. Nash is the cur- Counsel and serves on its State Law viously an associate at Keating, Muething rent coordinator of all federally Committee. and Klekamp, PLL, and a law clerk for appointed public defenders in the the Honorable James E. Keller of the Eastern District of Kentucky and a Timothy W. Dunn has joined Frost Kentucky Supreme Court. She earned a member of the United States Courts’ Brown Todd’s Lexington office and J.D. from the University of Cincinnati, Defender Services Advisory Group. He will practice in the firm’s Personal and College of Law in 2003, where she was a is also a member of the Sixth Circuit’s Succession Planning Group. He will human rights fellow and a member of the Advisory Committee on Local Rules focus in the areas of personal estate editorial board of the Law Review. and the Sixth Circuit Committee on planning and small business planning, Pattern Jury Instructions. Nash is a asset protection planning and estate and Patton Boggs LLP is pleased to graduate of Cornell University and the trust administration. Dunn graduated announce that Michael R. Engleman University of Kentucky College of Law. cum laude from the University of has joined its Washington, D.C., office Kentucky College of Law in 2008. He as a partner in the Energy & Natural Wyatt, Tarrant & graduated summa cum laude from Resources Practice Groups. At Patton Combs, LLP, is Eastern Kentucky University with a Boggs, Engleman will continue his rep- pleased to announce B.A. in economics and a certificate in resentation of regulated utilities, inde- that Walter R. accounting. pendent developers, banks and private Morris, Jr., has been equity funds in litigation or regulatory named counsel in the Paula Boggs proceedings in federal and state courts, Lexington office. Muething joined the federal and state administrative bodies Morris is a member of Port Authority in and national and international arbitra- Walter R. Morris, the firm’s Trusts, March 2012 to assist in tion forums. Jr. Estates & Personal redevelopment initia- Planning Service tives, including operat- Jessica A. McCarthy Team. He received his B.A., with dis- ing the Hamilton is an associate with tinction, in 1974 from the University of County Land the Louisville office of Kentucky, J.D. in 1977 from the Paula Boggs Reutilization Quintairos, Prieto, University of Kentucky College of Law, Muething Corporation (“Land Wood & Boyer, P.A. and M.A. from the University of Bank”) on behalf of the McCarthy is a civil Chicago in 1979. Previously, Morris Land Bank Board. The Hamilton County trial attorney practic- was a shareholder with the firm of Gess, Treasurer incorporated the Land Bank in ing in the areas of Mattingly & Atchison, PSC, where he 2011 as a tool to assist the County in Jessica A. insurance defense, practiced trusts and estates law for addressing the problems associated with McCarthy nursing home litiga- tion and professional liability. She has significant experience with personal injury matters, premises liability and commercial litigation cases in both Kentucky and Indiana. Additionally, her experience extends to the defense of professional liability claims in the areas of real estate, dental, medical, and legal malpractice claims. McCarthy received a J.D., magna cum (;3(57 &/,1,&$/ 6833257 '85,1* *29(510(17 $8',76 laude, from Valparaiso University &RQILGHQWLDO VXSSRUW IURP SURILFLHQW WKHUDSLVW QXUVH DQG ELOOLQJ FRQVXOWDQWV School of Law, in 2003 and B.A., magna cum laude, from the University )RU PRUH LQIRUPDWLRQ FRQWDFW of Southern Indiana in 2000 majoring in $0,( 0$57,1 275/ history and social science. Her profes- ( DPDUWLQ#SURDFWLYHPHGLFDOUHYLHZFRP sional affiliations include membership in &  0(',&$/ 5(9,(: 35(3$5('1(66 3URDFWLYH 0HGLFDO 5HYLHZ &RQVXOWLQJ //& the Kentucky Bar Association, Indiana 5(63216( ,1 3267$&87( 6(77,1*6  ( 0RUJDQ $YH 6XLWH '  (YDQVYLOOH ,1  Bar Association and Inns of Court. 3   )  ZZZSURDFWLYHPHGLFDOUHYLHZFRP Wyatt, Tarrant & Combs, LLP, is &/,1,&$/ '2&80(17$7,21 $8',76 _ 6(/) 5(3257,1* &2168/7$7,21 pleased to welcome Stephen C. Hall to $'5 $33($/6 6(59,&(6 _ 7$5*(7(' 75$,1,1* _ &203/,$1&( 3/$1 *8,'$1&( its Intellectual Property Protection and November 2012 56 Bench & Bar WhoWhatWhenWhere_Nov12.qxd 11/6/12 9:59 AM Page 57

WHO, WHAT, WHEN & WHERE Litigation Team. Hall Kentucky District Court Judge’s Award District Courts in both Ohio and has been practicing for Client Advocacy. Price will be prac- Kentucky. She received her B.A. from law since 1992. Prior ticing in the fields of nursing home and the College of Mt. St. Joseph in 1995 to joining Wyatt, he products liability defense litigation. and her J.D. from the University of was the chair of the Akron School of Law in 1998. intellectual property Fulton & Devlin, practice of Stoll LLC, is pleased to The law firm of Keenon Ogden, and announce that Schiller Osbourn Stephen C. Hall prior to becoming an Stephanie L. Kinney Barnes & Maloney, attorney, he worked as has joined the firm. PLLC, is pleased to a chemist. His legal practice includes Kinney graduated announce that the preparation and prosecution of from Pikeville College Stephen C. Keller patent applications in the United States with a B.S. in English has been named a and internationally under the Patent Stephanie L. and history. She grad- partner with the firm. Cooperation Treaty, and the handling of Kinney uated from the Stephen C. Keller Keller joined the firm patent and trademark infringement liti- Appalachian School of as an associate in gation in the federal courts. Hall earned Law in 2007. She is a member of the 2004. He obtained his J.D. from the his law degree from the University of Kentucky Bar Association and University of Louisville Louis D. Cincinnati College of Law, and his B.A. Kentucky Justice Association. Her prac- Brandeis School of Law and was admit- (Chemistry), magna cum laude, from tice is concentrated on workers’ com- ted to practice in Kentucky in 1999. the University of Louisville. pensation defense and subrogation. Keller continues to concentrate his prac- tice in the areas of automobile and Former staff attorney at Fayette Circuit The Louisville law trucking negligence, premises liability, Courts, Katherine L. Huddleston, has firm of Middleton products liability, construction litigation, joined Frost Brown Todd’s Louisville Reutlinger is pleased insurer bad faith and criminal defense. office. Huddleston will practice as an to announce that associate with the firm’s Regulatory Kevin L. Chlarson Stoll Keenon Ogden PLLC is proud to Business Group, focusing on financial has been named a announce that Joe Scott, former bank- institutions. Huddleston earned her J.D., director with the firm. ruptcy judge, has joined the firm’s magna cum laude, from the University Chlarson concentrates Bankruptcy, Financial Restructuring & of Kentucky College of Law in 2011. Kevin L. Chlarson his litigation practice Workouts Practice as counsel to the firm. Huddleston’s parents, Stephen P. and in the areas of com- He will work out of the firm’s Lexington Rhonda W. Huddleston have practiced mercial, education, employment, health office. Scott, who joined SKO’s legacy law for the last 35 years. She also has care and insurance litigation. He firm in 1972 and created its bankruptcy deeper roots in the legal industry, being received his J.D. from the University of practice, was appointed to the bench in the 16th member in her family to prac- Arizona, James E. Rogers College of 1999 for the U.S. Bankruptcy Court for tice law and the granddaughter of for- Law in 2003 and his Ph.D. in political the Eastern District of Kentucky by the mer United States Senator for Kentucky, science from the University of Iowa in United States Court of Appeals for the Walter “Dee” Huddleston. Huddleston is 2000. Chlarson received his B.A. in Sixth Court. Scott served as judge on the also actively involved in Kentucky political science from Arizona State Bankruptcy Appellate Panel for the Sixth Young Democrats, a youth-led political University in 1994. Circuit (2005-2008) and as Bankruptcy organization. Representative of the Sixth Circuit Adams, Stepner, Judicial Court (2008-2011). Upon his Thompson Miller & Woltermann & retirement from the bench, Scott became Simpson is pleased to Dusing, PLLC, is a lifetime member of the Sixth Circuit announce that Aaron pleased to announce Court. Previous to his legal practice, Price has joined the that Angela M. Scott was commissioned as a second firm as an associate. Hayden has been lieutenant in the United States Army Price received his named a partner of the Reserve in 1968 and was an instructor of B.A. from University firm. Hayden practices basic accounting at the University of of Louisville and his Angela M. Hayden in the area of civil liti- Kentucky from 1968-1971. Aaron Price J.D., magna cum gation, with an laude, in 2011 from emphasis on employment law and Christy J. Love is pleased to announce the University of Louisville Louis D. domestic relations, and criminal litiga- the opening of her new law firm, Love Brandeis School of Law. He served on tion with particular emphasis on federal Law Firm, PLLC. The law firm is the Moot Court Board for the University matters. She is admitted to practice in located at 333 North Main Street, Suite of Louisville, and received the Ohio and Kentucky, as well as the U.S. B, in London, Ky. The mailing address is November 2012 Bench & Bar 57 WhoWhatWhenWhere_Nov12.qxd 11/6/12 9:59 AM Page 58

WHO, WHAT, WHEN & WHERE Post Office Box 3105, London, KY Science Program teaching Robert Brown, partner in the 40743. The telephone number is 606- Environmental Law and Regulation. He Louisville office of Bingham 877-5683 and facsimile is 606-729-0854. is also a Trustee to the Energy and Greenebaum Doll LLP, has been elected Mineral Law Foundation. to the U.S. Department of Commerce Shoe Carnival, Inc., 2013 District Export Council National is pleased to Stoll Keenon Ogden PLLC is proud to Steering Committee. Brown will draw announce the addition announce that attorney Robby Packard from his successes as chair of of Sarah Dauer as has joined the firm’s Trusts & Estates Kentucky’s revitalized District Export in-house counsel. Practice as an associate and will work Council (DEC) to help companies Dauer is a 2003 grad- from the Louisville office. Packard across the nation increase exports uate of the University received his B.A. in philosophy from around the world. Brown also serves as of Kentucky, with a Brigham Young University in 2005 and chair of the World Trade Center Sarah Dauer B.A. in foreign lan- his J.D. in 2008 at the University of Kentucky. Brown’s election has strong guage (French) and Louisville Louis D. Brandeis School of potential to continue to benefit clients international economics. Upon gradua- Law. He also earned his LL.M in taxa- and companies with whom he has tion, she accepted a commission as an tion in 2009 from the University of worked on local and regional levels. officer in the United States Air Force Denver. Brown is a member of the Corporate and served on Active Duty until 2006. and Transactional Practice Group at She earned her J.D. from the Miller Wells is Bingham Greenebaum Doll LLP. He has University of Tulsa College of Law, in pleased to announce worked closely with international com- Tulsa, Okla., in 2009. While in law that William C. panies as an investment banker and school, she studied in-residence in Rambicure has joined attorney, serving both in-house and as Tianjin, China, where she focused on the firm. Rambicure, an outside advisor. Chinese Securities and International an AV Martindale- Business Transactions, and in Dublin, Hubbell peer Mary Burns, trust counsel at Johnson Ireland, where she focused on reviewed attorney, has Trust Company, recently received the International Intellectual Property Law William C. more than 30 years’ Forty Under 40 award. Forty Under 40 and European Union Law. Sarah sup- Rambicure experience represent- recognizes Greater Cincinnati’s next ports the company across a wide spec- ing both plaintiffs and generation of young leaders and innova- trum of issues, to include contract defendants in civil lawsuits. His special- tors – people who have already made a review, EEOC and employment law, ties include complex commercial litiga- mark professionally and in the commu- internal investigations support, litiga- tion, equine disputes, personal injury nity. Burns serves as chair of the board tion support, intellectual property cases, employment discrimination and of directors of the Women’s Crisis issues, legal exposure analysis and retaliation cases, whistleblower disputes Center in Northern Kentucky; is presi- internal audits/compliance issues. and business and contract disputes. dent of the Cincinnati Estate Planning Council; and is on the executive com- Stites & Harbison, PLLC, has named IN THE NEWS mittee of the Carnegie Visual & William (Bill) T. Gorton III as chair of Performing Arts Center in Covington. the firm’s Environmental, Natural Stoll Keenon Ogden PLLC is proud to Resources & Energy Service Group. announce that attorney Greg King has Jonathan S. Ricketts was reappointed Gorton succeeds W. Patrick Stallard, been accepted for fellowship in the to the Louisville Metro Ethics who has served as the service group Litigation Counsel of America. The Commission where he is currently chair since the group was established in LCA is a highly-selective honorary trial serving as chairmen. He was also 1984. Gorton, a member (partner) of the lawyer society with a membership lim- selected for the Leadership Louisville firm based in Lexington, is national ited to less than one-half of one percent class of 2013. Recently, the Deputy counsel to numerous clients on natural of American lawyers. Fellowships are Judge Advocate General of the United resource, environmental regulatory and selected based on excellence and States Navy awarded Ricketts the land and water resources matters. accomplishment in litigation, both at the Military Outstanding Volunteer Service Gorton also provides counsel on large trial and appellate levels, and superior Medal for his volunteer service over natural resource, business and corporate ethical reputation. King, a member of the last seven years with the Boy transactions. He routinely advises SKO since 1985, serves as chair of the Scouts of America, Kentucky and clients on compliance issues and assess- Tort, Trial & Insurance Services Louisville Bar associations, Foster ing and mitigating risks associated with Practice. His work is focused on med- Care Review Board, Louisville Metro facility operations and site conditions. ical malpractice defense; hospital Ethics Commission, and the Kentucky Gorton is assistant professor/adjunct at defense; personal injury defense; plain- Chapter of Juvenile Diabetes Research the University of Kentucky in the tiff’s personal injury; and will and trust Foundation. Rickets received his Natural Resource and Environmental litigation. undergraduate degree from Hanover November 2012 58 Bench & Bar WhoWhatWhenWhere_Nov12.qxd 11/8/12 9:04 AM Page 59

WHO, WHAT, WHEN & WHERE College and his J.D. from the nation selected for the Wyatt is pleased to University of Louisville Louis D. prestigious Toll announce that one of Brandeis School of Law. Fellowship Program the firm’s health care sponsored by The lawyers, Margaret The Association of Corporate Counsel Council of State Levi, has authored a (ACC), the premier global bar associa- Governments. The book for the tion serving the interests of in-house program took place Kentucky Chamber counsel, today announced the founding September 7-12 in of Commerce regard- th of its 54 chapter, the ACC Kentucky Laurie K. Lexington. The Margaret Levi ing health care Chapter. The new chapter will serve Dudgeon annual seminar is reform. The book corporate counsel members in the cities designed to develop focuses on how health care reform of Louisville, Lexington and its sur- the next generation of leaders from all affects Kentucky organizations. The rounding areas. It will also provide a three branches of state government. Impact of Health Care Reform on vast array of CLE programs, legal The program is named in honor of Kentucky Employers features chapters resources and initiatives for attorneys Henry Toll, a Colorado senator who on: the history of the Affordable Care that practice in legal departments of cor- founded CSG in 1933. This year’s pro- Act; expanding access to health insur- porations, associations and other pri- gram focused on trend analysis, policy ance; expanding health insurance cov- vate-sector organizations in the state of development, media and constituent erage; limiting health care costs; Kentucky. Members of the Kentucky relations and leadership and institu- funding for the Affordable Care Act; chapter are attorneys that represent the tional changes. Kentucky Supreme and program integrity provisions. Levi interests of more than 60 corporations in Court Chief Justice John D. Minton, is a member of Wyatt’s well-regarded the area including Humana, Texas Jr., who is a Toll Fellow alumnus, Health Care Service Team. She is the Roadhouse and Yum Brands Inc. The nominated Director Dudgeon for the former general counsel and corporate chapter’s officers include: Omar Amin, fellowship. Gov. Steven L. Beshear and compliance officer for Ephraim Churchill Downs Incorporated, (presi- Secretary Michael J. Brown of the state McDowell, Inc. She advises health dent); Sandra Adams, Signature Justice and Public Safety Cabinet care providers in the areas of fraud HealthCARE, LLC (vice president), endorsed Chief Justice Minton’s nomi- and abuse, Anti-Kickback Act, Stark Scott Catlett, Yum Brands Inc. (vice nation of Director Dudgeon. She grad- Law (physician self-referral), compli- president); Donna Schneiter, Res-Care uated from the University of Kentucky ance programs, clinical trial matters, (vice president); Jeff Gordon, Sun Tan with a bachelor’s degree in history in medical records, The Joint City (vice president and secretary); 1991 and earned a J.D. from the Commission standards, end of life and Curtis McCubbin, Hilliard Lyons (vice University of Kentucky College of other patient care matters. president and treasurer); and additional Law in 1994. directors of the Kentucky chapter. For more information about the chapter, its leadership, and a schedule of upcoming events, visit www.acc.com/chapters/ kentucky.

Preston Worley, an associate in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC, has been selected to serve as a founding Mediation Center/Business Consulting/Training Center member of the Golden Matrix Fund 1129 W. Lexington Avenue, Winchester, KY 40391 Advisory Board. Worley’s past involve- Phone: 859-744-6399 ment with DanceBlue and multiple www.appalachianpeacecenter.com • [email protected] other student organizations, plus the MEDIATION Services, 40 HR Mediation Training, Arbitration Services, Cooperative expertise he has gained in his career Parenting and Divorce Classes, Cooperative Parent and Divorce Leader Training, made him the ideal candidate. Worley Bully NO MORE Workshops, Active Parenting 1, 2, 3, and the other board members will be a and Step-Family Workshops… strong and vital part of the ongoing suc- CALL for more information. cess for private support of the UK 2012 & 2013 TRAINING DATES: Pediatric Oncology Clinic. *Family Mediation Training — March 7-10, 2013 **General Civil Mediation Training — December 15-18, 2012 Laurie K. Dudgeon, director of the Anger Management Classes offered on going. Administrative Office of the Courts, is *Applicant intends to submit an application for CLE credits. one of 48 state leaders from across the **This program has been approved for 38.75 CLE credits. November 2012 Bench & Bar 59 WhoWhatWhenWhere_Nov12.qxd 11/8/12 9:04 AM Page 60

WHO, WHAT, WHEN & WHERE Kathy Quesenberry, a partner in with offices in Fort Wright and The National Academy of Dinsmore’s Louisville office, was Louisville, Ky., was recently appointed Distinguished Neutrals (NADN) is recently appointed to serve a three-year to a leadership position on the pleased to announce the launch of its term on the Board of Trustees of Sacred Plaintiffs’ Steering Committee for MDL Kentucky chapter, recognizing the Heart Schools. Quesenberry is a gradu- 2385, In Re: Pradaxa state’s leading ADR practitioners for ate of both Sacred Heart Model School (DabigatranEtexilate) Products Excellence in the field of Dispute and Sacred Heart Academy. Quesenberry Liability Litigation, by the Honorable Resolution. Just six attorneys and is a member of Dinsmore’s Labor & David J. Herndon of the Southern former judges have been inducted as Employment Department where she pro- District of Illinois. Also, he is currently charter members for 2012 - Hon. vides litigation defense and advice and serving as co-lead counsel for MDL Cleveland Gambill (Ret.), Pierce counsel to employers on personnel poli- 2308, In Re: Toning Shoe Product Hamblin, John Hays, Brian House, cies and procedure, employee discipline, Liability Litigation pending the Western W. R. “Pat” Patterson Jr., and and harassment investigations. She District of Kentucky before the Henry L. Stephens. The Kentucky earned her J.D., magna cum laude, from Honorable Thomas B. Russell. Johnson chapter website can be visited online the University of Louisville Louis D. limits his practice to the representation at www.NADN.org/kentucky and Brandeis School of Law and her B.A. of injured persons in medical and prod- features profile and available dates from Vanderbilt University. uct liability cases with a special concen- for these members. To find out more tration in mass torts and complex about the association, please visit Ron Johnson, a partner in the law firm litigation involving medical devices and www.NADN.org/about. of Schachter, Hendy & Johnson, P.S.C. pharmaceuticals. Have an

Cleveland Gambill Pierce Hamblin item for WHO, WHAT, WHEN & John Hays Brian House WHERE? The Bench & Bar welcomes brief announcements about member placements, promotions, relocations and honors. Notices are printed at no cost and must be submitted in writing to: Managing Editor, Kentucky Bench & Bar, 514 W. R. “Pat” Henry L. Stephens West Main Street, Frankfort, KY 40601 or by email to Patterson, Jr. [email protected].

Digital photos must be a minimum of 300 dpi and two (2) inches tall from top of head to shoulders. There is a $10 fee CLICK per photograph appearing with announcements. Paid pro- www.kybar.org fessional announcements are also available. Please make checks payable to the Kentucky Bar Association.

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This easy to use search engine contains up to date information on CLE events which have been accredited by the Kentucky Bar Association Continuing Legal Education Commission.

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