Kansas Business Attorney

So, you don’t own/operate a business, participate in social media, or leverage technology on a routine basis?  Don’t attend this October 29th Kansas City event:

Focused Highlights

9:00am – 4:00pm at the Record Bar

Some of the region’s finest entrepreneurs, technologists, social media experts, and new media success stories presenting.

Emcees: Alternageek’s Christa Casebeer and Microblink’s Rob Jensen.

New Heights for Flyover States

October 29, 2008 from 5:00pm – 8:00pm at the Kauffman Center of Kansas City

A reception showcasing the entrepreneurs, innovators, and early-adopters using web technology to grow their businesses, advance their careers, and enrich the regional economy in new ways:

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1. Three of the area’s up and coming social media strategists will present an overview on how the web is changing their cities for the better and how new opportunities for innovation are expanding the importance of web-based technology in the Midwest.
2. A wrap-up panel: Where do we go from here? After a day filled with all the cool individual things that are occurring in Des Moines, Kansas City, Omaha, and the surrounding areas, we’ll discuss actionable items along the lines of “What now?“.

Emcee: Kauffman’s Vice President of Entrepreneurship, Bo Fishback.

Just so you know, those attending will enjoy a stellar panel of presenters.

{Note to organizers: Congratulations in advance for this event!  It’s already FTW!}

If you are unfamiliar, the Walnut Valley Festival is underway in Winfield, Sep. 17-21.  In their own words

The Walnut Valley Association was formed in 1972,with its sole purpose to produce the Walnut Valley National Guitar Flat-Picking Championships Festival, also known as the Flat-Picking Championships, currently known as the “Walnut Valley Festival” or simply “Winfield” to the long time attendees.

Evolving from 2 days in 1972 to its current 4-days the 3rd weekend of September annually, it endeavors to produce “family fare” entertainment on 4 stages simultaneously, a large quality, juried arts and crafts fair, workshops, and acoustic instrument contests. What began with 10 acts and 2 contests now boasts over 40 acts and 8 contests, including one international contest, 5 national contests and 2 Walnut Valley contests.

The contests are a major part of the festival. Along with the National Flat Pick Championships and the National Finger Pick Championships, the Walnut Valley Festival hosts the International Autoharp, National Mountain Dulcimer, National Hammered Dulcimer, National Bluegrass Banjo, Walnut Valley Old Time Fiddle, and Walnut Valley Mandolin Championships. Over the course of years, the contests at Winfield have attracted more than 3,000 contestants from all 50 states as well as many foreign countries including Australia, Canada, Denmark, Sweden, England, Germany, Italy, Japan, New Caledonia, Switzerland, and Wales. Well-known Winfield winners include Mark O’Connor of Nashville, Tennessee, who has won or placed in more Walnut Valley Festival contests than any other contestant. Mark won the National Guitar Flat-Picking Championship in 1975 and 1977, and also won the Walnut Valley Fiddle Championship in 1974 and 1977. Alison Krauss of Nashville, won the Walnut Valley Fiddle Championship in 1984 and Steve Kaufman of Alcoa, Tennessee, is the only three-time winner of the National Guitar Flat-Picking Contest, having won in the years 1978, 1984, and 1986 respectively. (Tennessee has consistently produced the most winners over the years.) Other Winfield winners include Mandolin virtuoso Chris Thile, the Mandolin Champion in 1993 and Dixie Chick fiddler Martie Erwin Seidel in 1987 and 89.

Festival attendance has been between 11,000 and 15,000 annually …

While other events are keeping me local, I cannot attend.  However comma.  I have just found a live stream on Front Porch Radio.  If you’re timely, you are sure to enjoy.

If you are familiar with banking and the mortgage industry, you may have followed with some interest the journey of Mortgage Electronic Registration Systems, Inc. Some large banks contracted in some manner with MERS to act as a clearinghouse of sorts to the extent that at the end of the day, MERS was appearing/acting as Plaintiff in its capacity as “nominee for the mortgagee _________”. Without knowing how widespread was the blanket of rulings, I noticed that perhaps beginning in Florida about two years ago, courts began consistently ruling that MERS did not, in its nominee capacity, have standing to foreclose mortgages or litigate on behalf of the true mortgagees.
Now, the Kansas Court of Appeals has affirmed shutting another door in the face of MERS. See Landmark National Bank v. Kesler, et al. In addition to not allowing the mortgagee to intervene beyond time after judgment and sale (go figure), the Court examined what it is that a ‘nominee’ purports to be:

… But for reasons thought beneficial by a group of lenders who trade mortgages, the form of mortgage used in this case designates an entity that is not the lender as the mortgagee. See MERSCORP, Inc. v. Romaine, 8 N.Y.3d 90, 96, 828 N.Y.S.2d 266, 861 N.E.2d 81 (2006) (MERS was established by large lenders to allow easy electronic trading and tracking of mortgages). Specifically, the mortgage says that the mortgagee is MERS, though “solely as nominee for Lender.” Does this mean that MERS really was the mortgagee, even though it didn’t lend money or have any rights to loan repayments? Assuming so, MERS argues that it was a necessary party to the foreclosure and that the foreclosure must be set aside. But the premise upon which MERS bases this argument is flawed.

What is MERS’s interest? MERS claims that it holds the title to the second mortgage, not the real estate. So it does, but only as a nominee. In terms of the roles that we’ve discussed in the mortgage business, MERS holds the mortgage but without rights to the debt. The district court found that MERS was merely an agent for the principal player, Millennia. While MERS objects to its characterization as an agent, it’s a fair one.

MERS had no right to the underlying debt repayment secured by the mortgage; MERS did not even act as the servicing agent to receive the payments and remit them to the lender. MERS’s right to act to enforce the mortgage was strictly limited: if “necessary to comply with law or custom,” MERS could foreclose the mortgage or enter a release of the mortgage. MERS certainly could not act at odds to its principal, the lender. Its role fits the classic definition of an agent: one “‘authorized by another to act for him, or intrusted with another’s business.’” In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 534, 920 P.2d 947 (1996) (quoting Black’s Law Dictionary 85 [4th ed. 1968]).

Only one Kansas case has discussed the meaning of nominee in any detail. In Thompson v. Meyers, 211 Kan. 26, 30, 505 P.2d 680 (1973), the court noted that the meaning of the term may vary from a pure straw man or limited agent to one who has broader authority.

But whatever authority the nominee may have comes from the delegation of that authority by the principal. In its ordinary meaning, a nominee represents the principal in only a “nominal capacity” and does not receive any property or ownership rights of the person represented. See, e.g., Cisco v. Van Lew, 60 Cal. App. 2d 575, 583-84, 141 P.2d 433 (1943); see also Applebaum v. Avaya, Inc., 812 A.2d 880, 889 (Del. 2002) (referring to nominees “as agents of the beneficial owners”). The Millennia mortgage does not purport to give MERS any greater rights than normally given a nominee. The mortgage says that MERS acts “solely as nominee for Lender.” There is no express grant of any right to MERS to transfer or sell the mortgage or even to assign its duties as nominee. Nor does MERS obtain any right to the borrower’s payments or even a role in receiving payments.

Courts across the country have said a lot about mortgagees and MERS acting as ‘nominee’. My father is not quite so wordy. He would call it “getting too smart for their own good.” Well said.

Firefox and Opera browsers allow you bookmarking option to open in sidebar. For Firefox, bookmark, then in properties, check “load this bookmark in the sidebar”.  Opera users, just check “Show in panel” for the same result.

The sidebar ultra-handy view is great for a number of web applications:

Google mobile view:  no doubt, you’ve seen this on your phone; with search, maps, iGoogle, youtube, calendar … what’s not to love;

Gmail mobile: in case you don’t have it in 9 other places already;

Google mobile Reader:  personal preference will tell you quickly rather you prefer your reader here or its regular spot;

Google mobile Notebook:  if you’re a researcher or web-clipper of any magnitude, the notebook belongs in your sidebar;

gTalk:  a chat client you already love

Meebo: simplify your chat; for those times your trying to juggle your mother on MSN, friends on google and your nephew on AOL;

Hahlo:  it’s a Twitter client, designed for the iPhone, but give it a go (yes, on your PC even);

MojiPage:  designed for the mobile web; register, then see your Twitter, Friendfeed, Digg, Google search, weather, del.ic.ious, RSS reader;

Yahoo mobile: okay, so the list is a little Google heavy; Yahoo mobile offers mail, messenger, news, address book, calendar, flickr & more

So, give ‘em a try — your favorite web apps … on the side.

What do you want in your sidebar?

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Click anywhere to cancel

Lawyers read contracts.  It’s akin to swearing like a sailor … just part of the deal.  And having heard everyone’s doing it, the FutureLawyer has begun scrutinizing terms of service agreements himself, before checking the “Accept” box for installations.  Like a healthy early-adopter, he found a well-recommended beta service, and thought he would give the free trial a shot.

I can appreciate his hesitation as he launched into registration.  I’m thinking he’s thinking, “what kind of language will be in the terms of service to give me comfort that I can entrust these people with my day-to-day practice, my livelihood, and ultimately, even my good standing with the state bar.”  But, I nearly digress.

So, there’s Rick, excited about trying out this new software as a service (Clio, by Themis Software), and he takes a few moments to scan the terms for how well he might be protected in the event something goes wrong. Then he comes across just what he’s not looking for (what’s a good antonym for glee).  In his words, here are

[j]ust a few of the gems on the hit parade: “1. You expressly understand and agree that Themis Software shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Themis Software has been advised of the possibility of such damages), resulting from your use of the API or third-party products that access data via the API. 2. Abuse or excessively frequent requests to Clio via the API may result in the temporary or permanent suspension of your account’s access to the API. Themis Software, in its sole discretion, will determine abuse or excessive usage of the API. Themis Software will make a reasonable attempt via email to warn the account owner prior to suspension. 3. Themis Software reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API (or any part thereof) with or without notice.”

What does the FutureLawyer do; how should he react?  The suspense is killing you.  You’ll have to read the punch line at FutureLawyer.  (You didn’t think I would mooch his ENTIRE post, I hope; but here’s a hint: it ends with sarcasm.)

And for those following a now-stale thread on these premises: know that neither Erik Larson nor anyone at Adobe has lived up to their “we’ll get back to you” promise regarding the new Acrobat.com terms of service.  You’re stunned.  I know.  Apparently, we gave way to more recent posts showing up on the Google Finance page for ADBE.  (Yes, I would feel bad if I suspected they just paid us a little lipservice while shareholders were watching.)

Per the Kansas Supreme Court’s press release of June 27, 2008:

RE: Case No. 99,957: State ex rel. Stephen Six v. Kansas Lottery and Ed Van Petten

The state Supreme Court today upheld the constitutionality of the 2007 Kansas Expanded Lottery Act (KELA).

The Court, in a 22-page unanimous opinion authored by Justice Eric S. Rosen, said that “while the state is not the exclusive owner and operator of all aspects of the lottery enterprise under KELA, the state owns and operates the enterprise itself and owns and operates key elements of the lottery,” thus complying with 1986 constitutional amendments.

A summary of the opinion is here, or read the full text.