Open Letter to Kentucky Judges Regarding the Ongoing Foreclosure Crisis

Cross-posted from Ben Carter Law...

This essay is deeply indebted to two articles: "Defending Mortgage Foreclosures: Seeking a Role for Equity" by law professor David Super and a National Consumer Law Center report: "Servicer's Failure to Engage in Appropriate Loss Mitigation as a Foreclosure Defense. The NCLC article does not appear to be available online, but many other resources from the amazing National Consumer Law Center are available. 

Dear Judge,

I’m writing today because it is down to you. You are the last, best hope for Kentucky’s homeowners–both those facing foreclosure and their neighbors.

Our neighbors’ homes are on fire. The foreclosure crisis blazes through our neighborhoods and continues to grow. One in four Kentucky homeowners owe more on their house than it is currently worth. One in ten is more than thirty days behind on their home loan.

Foreclosure is too expensive, too extreme, to be granted as a matter of routine—each sale adds fuel to the raging fire. Foreclosure devastates homeowners, destabilizes financial institutions, degrades neighborhoods, and impoverishes communities.

Kentucky faces a situation in which homeowners facing foreclosure are clueless, powerless, and unrepresented by counsel. The federal program designed to encourage banks[1] to modify homeowners’ loans (HAMP) is a colossal failure. Reckless banks pursue foreclosure even to their own (and everyone else’s) detriment. Worse, problems with the banks’ own loan documents abound; their right to foreclose at all is deeply suspect.

The federal government first failed to adequately regulate mortgage lending. Now, it is failing to address the fallout. State and local government’s efforts to mitigate the losses have been similarly watered-down and ineffective. Frankfort lacks the political resources and local governments lack the financial resources to address a crisis of this proportion. Banks can walk all over a local government.

But, they can’t walk over you.

Kentucky, thank God, is a state that requires banks to seek judicial approval before taking a homeowner’s house. Some states don’t. I’m writing today to encourage you to apply much stricter scrutiny–both legal and equitable–on foreclosure proceedings than has traditionally been applied. I’m writing to ask you to incorporate alternative dispute resolution in your foreclosure cases that will ensure that the parties have explored in good faith every alternative to foreclosure before granting judgment in favor of foreclosing Plaintiffs. I’m writing to ask you to ensure that the foreclosures inflicted upon the community are only those that are absolutely necessary.

What is happening is not traditional; it’s extraordinary. It’s time to start treating it extraordinarily.

How We Got Here

Later in this letter, I will urge you to evaluate and question whether equity will permit the foreclosure the bank is asking you to grant. I will encourage you to aggressively apply equitable remedies in Kentucky foreclosure proceedings. To evaluate the equity of the situation, you need to know how all of these loans that are now in default came to exist in the first place.

In the past decade, the system set up by federal regulators, banks, and investors to finance home loans incentivized originating exotic, risky, and unsustainable loan products to Americans unlikely to appreciate the complex terms contained in their loan.[2] Fraud and unconscionable practices pervaded the mortgage lending landscape. Lenders qualified borrowers for unaffordable mortgages by offering initially-low interest rates that obscured the true cost of the loan. Many homebuyers never knew their house payments would increase dramatically a few years into the loan. Borrowers who were savvy enough express concern about these “teaser rates” were told not to worry about the adjustable rate, that they would refinance the homeowner into a fixed rate before the rate adjusted. Banks paid mortgage brokers a “Yield-Spread Premium”—often thousands of dollars—to place homebuyers in loans with higher interest rates than the rate for which the homeowner’s credit history and income actually qualified them.

Not surprisingly, the victims of these lending abuses were often the very people who could least afford it: poor people and minorities.[3] Often, these loans were written at 100% of loan-to-value,[4] leaving homeowners trapped and unable to refinance out of spiraling interest rates once housing prices plummeted in the wake of the subprime mortgage meltdown.

After mortgage brokers and lenders placed homeowners in risky loans, they sold the right to collect payments on those loans to investment firms who then pooled those loans with thousands of other loans. Investors—from school boards in Iowa to the government of Iceland—bought the right to be paid proceeds from the revenue the pooled loans generated. Investment firms who purchased individual mortgages and created residential mortgage-backed securities grossly underestimated the riskiness of the loans they were purchasing and credit rating agencies likewise gave the securities the safest (“triple-A”) rating that many institutional investors required.

Because this system sold not only the right to collect mortgage payments, but also the risk of a defaulting loan, it removed any incentive from the loan originator to exercise due diligence, verify income, ensure sustainability, or prevent appraisal fraud. The system of securitization designed by Wall Street investment firms rewarded lenders who could originate as many loans as quickly as possible.

As is obvious in hindsight, the incentives surrounding this entire scheme of financing loans are exactly backwards. Mortgage brokers are rewarded not for finding homeowners the most affordable loan, but the most expensive. Originating lenders have no interest in the long-term sustainability of the loan, and investment firms only care that there are investors for the securities they’re creating. Credit rating agencies are paid by the very firms that they’re grading.

Before the housing bubble, lenders and the eventual investor (usually FannieMae or Freddie Mac) cared whether an individual homeowner could pay their mortgage payment. Suddenly, no one did. It was a system for financing home loans that did everything wrong. It was destined to collapse.

Foreclosure Hurts Everyone

Now that the collapse has happened, the mortgage meltdown and the broader economic downturn have introduced into the public conscience the ravages of foreclosure on individuals and communities. No one wins when a house is sold at a foreclosure auction.[5]

Homeowners lose their home. They always lose the emotional equity they’ve invested into their home, and often any financial equity, as well. They lose the stability that homeownership provides. Their world suddenly uncertain, homeowners bear the cost of moving and reestablishing housing in another neighborhood, sometimes another city or state.

Lenders lose money along every step of a foreclosure sale. A 2008 paper by the Mortgage Bankers Association acknowledges lenders often lose in excess of $50,000 in each foreclosure, or 30–60% of the outstanding loan balance.[6]

From the moment a homeowner stops paying their mortgage, lenders lose money. While the loan is delinquent, lenders lose principle and interest payments, as well as taxes and insurance payments. They must maintain the property, if necessary, and invest in trying to collect the on the loan. Once the home is in foreclosure, lenders must hire lawyers, pay court costs, and administrative fees. Then, they then must hire a company to maintain the property and secure the property. Finally, after the home is sold in foreclosure, the lender often must restore the property before selling it and hire a realtor.[7] If the lender is lucky, the property will sell at a deeply discounted rate, if it sells at all.[8]

Beyond the parties to the contract—the homeowner and lender—foreclosure hurts innocent neighbors and plagues communities with a vicious cycle of depreciation and degradation.

Because houses sold at a foreclosure auction are eventually sold for a fraction of what they otherwise would have, foreclosures damage the value of neighboring homes. When a neighborhood’s homes begin to depreciate, many innocent homeowners find themselves “upside-down” on their own loans. That is, they suddenly owe more on their homes than they are worth.[9] When a family needs to move or refinance, they find doing so next to impossible. Even for those hoping to remain in the neighborhood, a foreclosure sale on a neighbor’s property, over which they have no control, strips them of equity and reduces the value of their investment.

This collateral damage (literally and figuratively) is exacerbated by the fact that many foreclosed properties are not properly maintained and remain vacant or abandoned for months or years.[10] Researchers in Philadelphia have determined that properties within 150 feet of an abandoned property lose $7,627 in value. Those within 300–450 feet lose $3,542. Properties on a block with an abandoned house sell for $6,715 less than those without a vacant property. Metropolitan Housing Coalition, 2009 State of Metropolitan Housing Report 16 (2009). Louisville currently has between 7000 and 8000 vacant properties—a number that has doubled in the past six years—and the roughly 250 foreclosure sales scheduled each month continue to grow the number of vacant properties. The Center for Responsible Lending anticipates that Kentucky will lose $2.2 billion in home equity due to nearby foreclosures between 2009 and 2012. That’s an average loss of $2,610 per home.

Because of foreclosure sales, deeply discounted REO properties, and the glut of vacant and abandoned properties depress property values, ordering a foreclosure sale will reduce the local government’s property tax revenues–the lifeblood of municipal budgets. Not only will it reduce the money local governments bring in, foreclosures require the government to spend up to $34,000 per foreclosure on “inspections, court actions, police and fire department efforts, potential demolition, unpaid water and sewage, and trash removal.”[11] All told, the Joint Economic Committee of the U.S. Congress estimates that each foreclosure costs all parties $80,000.[12]

Kentucky Judges Should Consider Equity and Equitable Remedies

Five hundred years ago, England developed equitable proceedings for cases in which the strict enforcement of rigid legal principles made the attainment of justice unlikely. Our own legal system, descended from the English system, requires courts to exercise both legal and equitable jurisdiction. Modern practice in Kentucky merges the two systems of law and equity. Ford v. Gilbert, 397 S.W.2d 41 (1965). The Kentucky Constitution “imbues the circuit courts with the general power to determine all matters of controversy arising under common law or equity.” Hisle v. Lexington-Fayette Urban County Government, 258 S.W.3d 422, 432 (Ky. App. 2008).

In Hisle, the Court notes that “[a]lthough modern partition proceedings generally involve statutory provisions, the jurisdiction of equity courts to partition real property is very ancient and has existed in common law both in England and this country since its founding.” Hisle at 431. Therefore, statutes that govern partition of land “supplement, or are supplemented by, the traditional jurisdiction of equity courts to decree partition.” Hisle at 432 quoting Atkinson v. Kish, 420 S.W.2d 104, 110 (Ky. 1967).

Similarly, in a foreclosure proceeding, the statutory provisions intersect with equitable considerations. Equitable relief is available in states, like Kentucky, where foreclosure is a statutory action. Union National Bank of Little Rock v. Cobbs, 509 A.2d 719, 721 (Pa.Super. 1989). “Foreclosure is peculiarly an equitable action, and the court may entertain such questions as are necessary to be determined in order that complete justice may be done.” Morgera v. Chiappardi, 813 A.2d 89, 98 (Conn. App. 2003) quoting Hartford Federal Savings & Loan Assn. v. Lenczyk, 217 A.2d 694 (1966). Emphasis in original. “The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” LaSalle National Bank v. Freshfield Meadows, LLC., 798 A.2d 445 (Conn.,2002).

Today, Kentucky courts [13] have the ancient opportunity and duty to weigh the equities present in each foreclosure case. To evaluate the equity of the situation, the Court should ask itself two questions:

1. Does the bank deserve the right to foreclose on this particular homeowner?
2. Should the Court allow the bank to inflict a foreclosure on the community?

Does the Bank Deserve the Right to Foreclose on This Particular Homeowner?

As an initial matter, the court should examine the Plaintiff’s own conduct and its relationship to the homeowner. “Equitable defenses invite the court to consider only the plaintiff’s ethical standing and to deny all remedies if the plaintiff does not meet equity’s standards.” Dan B. Dobbs, Dobbs Law of Remedies § 2.3(3) at 80 (2d ed. 1993). Courts can examine the behavior of the parties over the life of the loan: from the origination of both the note and mortgage, to their validity, to their enforcement. Bank of New York v. Conway, 916 A.2d 130 (Conn. Supp. 2006).

For example, when a “mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had.” New Haven Sav. Bank v. LaPlace, 783 A.2d 1174, 1180 (Conn. App.,2001). Courts have also recognized other equitable defenses to foreclosure: unconscionability, abandonment of security, usury, accident, fraud, equitable estoppel, laches, breach of implied covenant of good faith and fair dealing, tender of deed in lieu of foreclosure, a refusal to agree to a favorable sale to a third party, and violations of state consumer protection laws. Id.

What is the Plaintiff and What Has It Done to Avoid Foreclosure?

In the context of a foreclosure on a person’s home, a constellation of considerations often undermines the Plaintiff’s equitable standing to pursue a forfeiture of that home. From the origination of home loans, to their securitization, to their servicing, and finally to the treatment of defaulting homeowners, the mortgage brokers, appraisers, realtors, banks, investment firms, and investors purposefully and profitably participated in a tremendously flawed lending system. These flaws erode the Plaintiff’s equitable standing to now insist on the drastic remedy that requires a family to forfeit their home.

Failing to consider origination abuses would encourage the kind of schemes constructed within the last decade in which each party to the loan, from origination to securitization, sought and profited from plausible deniability of such abuses. The Plaintiff in most cases will not have originated the loan. It may not have been there when the appraisal was massaged. It may not have paid the broker for placing the homeowner in a more expensive loan than was justified by the homeowner’s credit score. It may not have written risky loans to people who didn’t understand the loan’s terms. But, it intentionally chose to participate in the system by purchasing those loans from the originating lender. It sought to profit from the fraud and unconscionable actions perpetrated by mortgage brokers, realtors, appraisers, and lenders. The Plaintiff’s hands became unclean when it shook the dirty hands of the loan’s originators.

Plaintiff’s willingness to participate in a reckless lending environment fraught with fraud, unconscionable lending practices, and bad faith impacts its equitable standing to now seek the extreme remedy of foreclosure. But the inquiry into equitable standing does not end there. The Court must inquire into any servicing abuses, as well as whether and how diligently the Plaintiff has pursued other, less drastic, loss mitigation options in the face of the homeowner’s alleged default.

*When the homeowner began struggling with the mortgage payments, did the Plaintiff consider a forbearance agreement in cases of temporary hardship? *Did it offer to modify the homeowner’s interest rate as it was spiraling out of control? *Did it structure its loss mitigation and loan modification departments in ways that encouraged participation by homeowners? [14]

*Did it consider accepting a deed in lieu of foreclosure or the sale of the property to a third party? *Did the Plaintiff insist on pursuing foreclosure even while telling the homeowner it was considering him or her for a loan modification?

Failure to provide meaningful loss mitigation options to struggling homeowners damages the Plaintiff’s equitable standing to now seek a forfeiture of the Defendant’s home.

Has the Servicer Participated in HAMP in Good Faith?

The existence of a federal program that is designed to encourage services to modify struggling homeowners’ loans adds an additional layer to the Court’s analysis of the Plaintiff’s equitable standing.[15]

After creating an incredibly risky and ultimately disastrous system for financing home purchases, banks and investment firms received $700 billion of taxpayer money as part of the Troubled Asset Relief Program (TARP). As part of that program, lenders and servicers of home loans could opt in to the Home Affordable Modification Program (HAMP), allowing them to access $50 billion in taxpayer money. The federal government intended HAMP to “help up to 7 to 9 million families restructure or refinance their mortgages to avoid foreclosure. Home Affordable Modification Program, Supplemental Directive 09–01 1 (April 6, 2009). Under HAMP, a lender or servicer receives cash payments for modifying loans in its portfolio according to the requirements of the program. Once it has opted in to the program, a lender or servicer is obliged to review all of its loans for eligibility under HAMP.

Participation in this program is optional, compliance with its regulations is not. Numerous state and federal courts have found that a lender’s violation of a federal law designed to prevent foreclosure should be raised by the borrower in state court as an equitable defense in a foreclosure proceeding, instead of as a private cause of action.[16] Similarly, state courts also have found that a lender’s non-compliance with federal FHA, HUD, or VA guidelines designed to prevent foreclosure may be raised by the borrower as an equitable defense in a foreclosure proceeding.[17]

Resolving how and whether a servicer has complied with the HAMP regulations require courts to both enforce legal rights and weigh equitable considerations. Like the facts surrounding the origination and servicing of the loan, a servicer’s compliance with HAMP will affect their equitable standing to pursue a foreclosure action.

How HAMP Works

Broadly speaking, HAMP requires the lender or servicer to ask itself, “Would modifying this loan under the terms of HAMP yield a loan that is more or less profitable than foreclosing on the property?” If modification is more profitable, the participating entity must offer the homeowner a conforming loan modification. If foreclosure is more profitable, the lender can proceed with foreclosure.[18] This analysis is called a “Net Present Value” (NPV) calculation. Many courts have held that a servicer’s failure to comply with similar loss mitigation requirements in the FHA loan program was a defense to foreclosure.

To appreciate the importance and difficulty of doing a proper NPV analysis, it is critical to understand what variables go into a Net Present Value calculation. To properly perform an NPV, banks must compare the value of the income from a foreclosure sale to the value to the investors of a modified loan. Many variables go into calculating the potential loss from a foreclosure sale. Unfortunately, the participating lenders claim their NPV models are “proprietary,” so we cannot be entirely certain what variables lenders consider. However, the FDIC provides their “Mod in a Box” calculator to the public and it provides the masses an idea of what the calculation involves.[19]

To calculate the value of the income from a foreclosure sale, the bank must consider variables like the likelihood that the homeowner will “cure” the deficiency, making foreclosure unnecessary. Further, the lender must anticipate the amount for which the property can be resold in a post-foreclosure sale, how long such a sale would take, and what costs would be involved (including maintenance, taxes, legal fees, court costs, inspections, etc.).

With so many variables to consider, participating servicers can make mistakes in their Net Present Value analyses. Sometimes, the value of the property (a consideration in its potential resale value) has declined without the servicer’s knowledge. Sometimes, the homeowner has significant defenses to the foreclosure that need to be litigated prior to foreclosure, increasing both the time and cost of foreclosure.

Without production of the NPV analyses, the court and homeowners have no way of verifying the accuracy or veracity of the foreclosing parties’ analyses. Without a court order, homeowners have no assurances that the servicer or bank has done the math properly and according to the HAMP’s requirements. This math will determine the homeowner’s fate and whether or not the homeowner will, in fact, remain a homeowner. This lack of transparency violates public policy and is especially disturbing in light of the recent economic crisis. The banks and servicers entrusted to perform the NPV analyses are the same banks whose math counseled for the origination of risky adjustable rate mortgages written at 100% loan-to-value. Their math assured investors that securitizing subprime loan products was a safe bet, that housing prices would continue to climb. That banks and servicers now expect homeowners, courts, and communities to trust them to do the math correctly behind closed doors strains credulity and demonstrates, still, the height of hubris.

To ensure participating lenders are complying with their obligation to accurately perform a Net Present Value analysis and to ensure taxpayers are getting value for their investment in the HAMP program, this Court, operating in equity, should order participating lenders to produce their NPV analyses prior to ordering a foreclosure sale. The stakes are too high for everyone—banks, homeowners, neighbors, and communities—to not get this right.

How HAMP Doesn’t Work

A homeowner is extremely lucky if the only shortcoming in the process of applying to HAMP is their bank’s failure to “show their work” on their Net Present Value analysis. So much pain exists in the process before the bank ever has the chance to do the math wrong. As has been well-documented elsewhere (LINK), servicers routinely *lose homeowners’ paperwork *ask for additional paperwork *ask for duplicative paperwork *encourage homeowners to miss a payment “in order to be eligible” for a loan modification *say one thing on the phone and another in paperwork *misapply payments *extend three-month trial modifications for 8, 10, 12, 15 months *deny modifications they had previously accepted.

Plaintiffs will characterize their actions in court—filing foreclosures and pursuing judgments and sales—as innocent and harmless steps designed to protect its legal rights. They are not. Plaintiff’s actions actually damage the homeowners’ ability to get a loan modification, contrary to the goals of HAMP, the purpose of servicers’ voluntary participation in the program, and the requirement to participate in good faith.

One of the variables banks and servicers include in their NPV analysis is the cost of successfully taking a piece of property through a foreclosure sale; these costs include legal fees and court costs. Typically, banks pass along these costs to the homeowner in a modification, adjusting the unpaid balance upwards by thousands of dollars. By increasing the unpaid balance of the loan, modifying that loan so that the monthly payment is 31% of the homeowner’s gross monthly income (a requirement under HAMP) appears less palatable. The higher those foreclosure fees (and ultimately the unpaid balance of the loan) are, the less likely a homeowner is to receive a modification.

Similarly, another variable banks estimate when deciding whether to modify a homeowner’s loan is the months to a foreclosure sale. The more months before achieving a foreclosure sale, the more expensive the foreclosure becomes and the longer it will be before the house is ultimately resold by the bank to recoup its investment. As the months to a foreclosure sale rise, modification becomes an increasingly profitable alternative under a NPV analysis. By aggressively pursuing legal claims, banks are taking affirmative actions to keep the months to a foreclosure sale low and decreasing the homeowner’s likelihood of receiving a loan modification. Thus, by pursuing foreclosure even while considering a homeowner for modification, banks and servicers are undermining the taxpayer-funded program in which they chose to participate and that program’s stated goals.

Even if the Plaintiff’s own equitable standing is impeccable, the Court’s inquiry into the equities of the case does not end there. Given taxpayers’ significant investment into this program and its goal of drastically reducing the number of foreclosures, the community has a broader equitable interest in ensuring its success.

Should the Court Allow the Bank to Inflict a Foreclosure on the Community?

While courts will inquire into the behavior of the Plaintiff and the circumstances surrounding the origination, servicing, and enforcement of the note and mortgage, a foreclosure involves broader equitable considerations. Courts not only consider strict equitable defenses, but also “balance hardships that the parties, other affected persons, and the public would face under various possible outcomes.” Handbook of Modern Equity, de Funiak, William Q., 42–46 (2d ed. 1956). Again, trial courts “may examine all relevant factors to ensure that complete justice is done.” Johnnycake Mountain Associates v. Ochs, 932 A.2d 472 (Conn. App. 2007). Here, this examination requires inquiry into the devastating impact of foreclosures on the parties and the community. Furthermore, courts must consider the hardships caused by securitized loans, as well as Plaintiff’s compliance with federal efforts to stabilize the housing market and end the foreclosure crisis.

Kentucky courts have long-recognized the doctrine of equitable waste to prevent parties from abusing their own rights to the detriment of others. The Kentucky Court of Appeals, then the Commonwealth’s highest court, held in 1912 that:

[E]quity will sometimes restrain equitable waste. Equitable waste is defined by Mr. Justice Story to consist of ‘such acts as at law would not be esteemed to be waste under the circumstances of the case, but which, in the view of a court of equity, are so esteemed from their manifest injury to the inheritance, although they are not inconsistent with the legal rights of the party committing them.’ The same author further says: ‘In all such cases the party is deemed guilty of a wanton and unconscientious abuse of his rights, ruinous to the interests of other parties.’ Lord Chancellor Campbell defines equitable waste to be ‘that which a prudent man would not do with his own property.’ Landers v. Landers, 151 S.W. 386, 391 (Ky.App. 1912). Internal citations omitted.

When operating in equity, then, courts will intervene to avert financial ruin, even if a party may be legally entitled to ruin either itself or others.

In foreclosure cases, courts should undertake a complete inventory of the cost of the foreclosure to both the parties and the larger community. “Balancing … public interest and third person rights … admits a modicum of economic analysis into the equity case.” Dobbs at § 2.4(6) at 112. When the court weighs the equities in a foreclosure proceeding, it must consider the effect a foreclosure sale will have on innocent homeowners in the neighboring area.[20]

As discussed above, lost equity, maintaining and reselling foreclosed property, lost investment, depreciation of nearby properties, and lost tax revenue add up quickly to make foreclosure an exceptionally costly remedy. Unfortunately, due to perverse incentives for servicers in Pooling and Servicing Agreements, lenders cannot be relied upon to manage their interest in the property “as a prudent man would” as required by the Court in Landry. Instead, lenders pursue foreclosure to their own detriment and the detriment of the homeowner, neighbors, and the larger community. In these cases, the court is required to consider the public interest and third party rights in an economic analysis of the equities in a foreclosure case. The high cost of foreclosure to all involved make it a remedy that should only be granted when all other options have been exhausted and other equities compel it.

Beyond the barrier posed by the servicers’ warped incentives, securitization creates another barrier to a mutually beneficial settlement. Stock, called "certificates, in residential mortgage-backed securities are divided into tranches; investors in various tranches can have very different financial incentives. Investors in a RMBS receive different returns on their investment and receive payment in different orders of seniority. So, even when these notes were effectively securitized, the certificateholders of the security have very different interests. Some (those with the most seniority) will prefer pursuing foreclosure, while investors in more junior tranches will profit by a mortgage reformation. In this situation, many servicers will decline to act to modify a home loan, citing either the constraints of the Pooling and Servicing Agreement or exposure to potential liability to one investor or another.

This situation is inequitable. Foreclosures devastate homeowners, neighborhoods, and communities while servicers and their investors fail to pursue alternatives to foreclosure. Kentucky courts, operating in equity, should require both parties to a note secured by real estate to negotiate in good faith before pursuing the drastic and costly remedy of forfeiture through a foreclosure sale.

When a homeowner has applied for a HAMP modification, the securitization of the homeowners loan can prevent modification. Under HAMP, if a loan has been securitized (and 85% of outstanding home loans have), the servicer must get approval from the trustee of the residential mortgage-backed security–approval the investor is not obligated to give. Many homeowners go through months of heartache and hassle trying to get their loan modified only to be told, simply, “the investor is not participating.” When this occurs, Courts must be deeply skeptical of the Plaintiff’s equitable standing to pursue foreclosure. If a servicer has asked an investor’s permission to modify a loan, it’s because the servicer has already calculated that EVERYONE, including the investors, will lose less money modifying a homeowner’s loan than by foreclosing on the home. The investor’s non-participation in this situation is profoundly inequitable.

Kentucky courts already recognize that when the state seeks to condemn property under its power of eminent domain cases that the condemning authority has the “additional duty … to negotiate in good faith for the acquisition of property prior to initiating condemnation proceedings.” Golden Foods, LLC v. Louisville & Jefferson County Metropolitan Sewer Dist., 2005 WL 1049388, 3 (Ky. App., 2005). The two situations—eminent domain and foreclosure—are similar. Both involve parties with radically different levels of bargaining power. Both involve the forfeiture of real estate to the party of greater power. In foreclosure suits, courts should exercise their equitable jurisdiction and withhold foreclosure until the party seeking to foreclose can offer convincing evidence of having negotiated in good faith and can demonstrate that no other alternative to foreclosure exists.

Remedies Available in Equity

Sitting in equity, the Court has broad discretion to fashion a remedy that does justice in a particular case. It can refuse to grant a foreclosure sale: “[w]here the Plaintiff’s conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles.” Morgera v. Chiappardi, 813 A.2d 89, 91 (Conn. App. 2003).[21] In cases in which the alleged delinquency is caused by unemployment, disability, or other loss of income, the Court may stay a foreclosure to provide the Defendant time to find employment, apply for benefits, or otherwise remedy the loss of income. When a homeowner has applied for a loan modification, the Court may dismiss premature suits for foreclosure when the Plaintiff has not finished evaluating that homeowner for a loan modification. Similarly, the Court may stay a foreclosure proceeding until a servicer or bank gives convincing evidence of having negotiated in good faith with a homeowner. Negotiating in good faith will include exploring less-costly alternatives to foreclosure like short sales, deeds-in-lieu of foreclosure, reasonable payment plans to erase the arrearage. Courts may modify mortgage payments as required by the demands of equity.[22]

A bank’s failure to explore all options to avoid inflicting a foreclosure will impact their standing to pursue a foreclosure. Courts do not need to wait on homeowners attorneys to make these arguments or question the bank’s equitable standing. As a judge in Kentucky, you can inquire sua sponte into the parties’ standing, as standing impacts the court’s subject matter jurisdiction. Kentucky Employers Mutual Insurance v. Coleman, 236 S.W.3d 9, 15 (2007). If a bank is behaving recklessly, the Court may dismiss the case for lack of subject matter jurisdiction because the bank’s bad acts rob it of the equitable standing it needs to pursue foreclosure in our courts.

Alternative Dispute Resolution in Foreclosure Cases

Courts across the country are changing their judicial processes to ensure that the parties have exhausted all alternatives to foreclosure, bargained in good faith, and deserve to proceed with a foreclosure sale.

Right now, we have a situation in which clueless homeowners lack information about the civil process and the resources available in the community to assist them in responding to the complaint and exploring alternatives to foreclosure. More than 80% of all homeowners facing foreclosure will lack the benefit of legal counsel. In an adversarial system of justice, this virtually guarantees that the homeowner will be steamrolled in a proceeding in which our system of justice has broken down.

The failure of our system to efficiently assist clueless homeowners in finding legal counsel should concern each member of the bar. Combine vulnerable homeowners with a failed federal loan modification program and lack of legal counsel and you have a situation that is most easily defined simply as “pain.”

If timely information delivered credibly is combined with the counsel and advocacy of an attorney and a judicial program with teeth, we can enter world that involves less pain, that avoids unnecessary foreclosures, and helps our community recover from the housing crisis as quickly as possible.

The first thing we did in Jefferson County (and, frankly, the most important thing you can do) is attach a Notice to each foreclosure complaint before the Sheriff delivers the complaint and service of summons. The Notice should be full-color (or a least printed on colored paper) and should contain a phone number homeowners can call to receive a referral to an attorney or housing counselor.

You will need to work with your local bar association and legal aid offices to develop a referral system that works for your jurisdiction.

National best practices for these foreclosure mediation programs are emerging and include:

1. An automatic stay of the foreclosure proceedings until the servicer has established its good faith compliance with its obligations
2. Transparency from all parties that includes production of net present value calculations and loan documents
3. Active, neutral oversight from an official with the power to impose sanctions on parties
4. Requirement to pursue alternatives to foreclosure in good faith
5. Sustainable funding mechanisms that allow program administrators to be paid
6. Oversight of attorney’s fees and foreclosure costs

The Franklin County Circuit Court has implemented a program that incorporates many of the emerging national best practices. A copy of the Court’s order is available here.

In Franklin County, the Court issues an automatic stay in every foreclosure case. If the homeowner takes no action within 20 days, that stay is lifted. However if the homeowner is participating in Franklin County’s foreclosure mediation process, the stay will remain in place until the parties agree on an alternative to foreclosure or the servicer can demonstrate that they have analyzed and pursued every other alternative to foreclosure and they are both legally and equitably entitled to the extreme remedy of foreclosure. A mediator oversees this entire process and can report to the Court regarding the efforts both sides are making to avoid a foreclosure.

It’s Down to You

The foreclosure crisis rages across our state. Banks add fuel to the fire with each foreclosure they pursue. with each foreclosure sale, surrounding homes lose value.[23] Despite profiting from their subprime lending spree, the TARP bailout, and the Home Affordable Modification Program, banks are actively seeking to foreclose, adding unnecessary costs to the loan and diminishing homeowners’ chances to qualify for loan modifications. Banks chose to play with fire in the risk-filled world of residential mortgage-backed securities; they now expect the Court to stand aside and watch as our neighborhoods burn.

The Court does not have to stand aside. Rather, the Court has the obligation to weigh the equities in each foreclosure case and decide whether the Plaintiff has the legal and equitable standing to impose the costs of foreclosure on innocent neighbors and the city’s strained coffers. You have the authority to evaluate the equity of the situation and craft equitable solutions unique to each case. Or, you have the authority to order a mediation at which each alternative to foreclosure will be considered and eliminated prior to allowing the Plaintiff the extreme remedy of foreclosure.

Federal and state officials have failed to adopt policies that would reduce the foreclosure crisis and the unemployment crisis. It’s down to you.

It’s up to you.

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1. Throughout this letter, I will use the word “bank” and “servicer” interchangeably. There is a difference. But, when I’m referring to a “bank” pursuing foreclosure, I mean “the entity charged with servicing the loan and exploring loss mitigation options.” This will often, in fact, be a servicer. About 85% of all home loans have been bundled into residential mortgage-backed securities; those lines are usually managed by a “servicer,” not a “bank.” That servicer would often be the entity responsible for collecting and accounting for payments, determining default, initiating and prosecuting the foreclosure, and exploring alternatives to foreclosure.  ↩

2. For a general overview of the risks of adjustable rate, interest-only, and payment-option mortgages, see Mark Zandi, Financial Shock: A 360° Look at the Subprime Mortgage Implosion and How to Avoid the Next Financial Crisis 35–38 (FT Press 2009). Zandi reports that the lending industry regarded payments scheduled to “rise substantially” as “a problem for another day.” He also notes that because ARMs “shift substantial risk to borrowers when rates fluctuate…the delinquency rate on ARM loans is 50% greater than on fixed-rate loans.”  ↩

3. While some unqualified borrowers received loans, other borrowers received high-cost loans when the borrower’s income and credit history qualified them for more traditional, affordable loans. The National Community Reinvestment Coalition issued a report, “Income is No Shield” in 2008 describing in detail the disparate impact the lending environment had on minorities, regardless of income or credit score. In Louisville, specifically, the report found that low-to-middle income African-Americans were 2.3 times more likely to receive a high-cost home loan than their low-to-middle income white counterparts. Even middle-to-upper income African-Americans were 1.3 times more likely to receive high-cost home loans than their white counterparts. Again, this report is adjusted for traditional lending risk factors such as income and credit score and reflects the likelihood of receiving high-cost (and therefore high-risk) loan products by race. The report suggests that, reprehensibly, in recent years lending institutions have regarded race as a risk factor when originating loans.  ↩

4. Often the true loan-to-value was even greater than 100% when one considers that many of the loans were justified based on inflated appraisals.  ↩

5. To say that “no one wins” is not entirely accurate when a loan is serviced by a company that is not the owner of the note. A third party often services the loan when the loan has been securitized into a REMIC (Real Estate Mortgage Investment Conduit). In these cases, the trust will hire a third party to collect payments from the thousands of loans pooled in the security and divide the proceeds according to various investors’ rights under the Pooling and Servicing Agreement (PSA). In many PSAs, the loan servicer is paid a nominal fee for collecting the monthly checks, but gets to keep the proceeds of fees that flow from a homeowner’s default and resulting foreclosure. Thus, PSAs create in servicers the perverse financial incentive to foreclose even when both their investors and the homeowner would benefit from a negotiated settlement or loan modification that kept the homeowner in the home and monthly checks flowing to the investor. Many of the provisions of the President’s Home Affordable Modification Program aim to overcome these misaligned incentives.  ↩

6. Mortgage Bankers Ass’n, “Lenders’ Cost of Foreclosure” p. 2 (May 2008), available at http://www.mbaa.org/files/Advocacy/2008/LendersCostofForeclosure.pdf .  ↩

7. Id. at 4–5 (May 2008).  ↩

8. It is worth noting that the MBA acknowledged in 2008 that the current “softness” of the housing market could push the losses investors experience in an REO sale “even higher.” Since that statement, the housing market has not stabilized and remains soft.  ↩

9. In 2008, “ten million American homeowners, a fifth of all mortgage holders, are now in this untenable financial situation.” Mark Zandi, Financial Shock: A 360° Look at the Subprime Mortgage Implosion and How to Avoid the Next Financial Crisis 44 (FT Press 2009). In Kentucky, 1 in 4 homeowners are underwater.  ↩

10. Another report from the Metropolitan Housing Coalition notes that “[T]he best defense to a home becoming vacant and abandoned due to foreclosure is quick action by the homeowner to seek assistance from a reliable nonprofit housing counseling program in seeking a loan modification from the creditor. The chance of a property becoming vacant and abandoned is greatly diminished by the owner negotiating new loan arrangements and remaining in the home as long as possible.” Metropolitan Housing Coalition, *Vacant Properties: A Tool to Turn Neighborhood Liabilities into Assets*. Plaintiff’s are far less likely to be guilty of equitable waste if they engage in rigorous good-faith negotiations with homeowners in default.  ↩

11. David Newton, “Widespread Panic: Why the Mortgage Lending Industry Can Calm Down About Amending Cramdown” 98 Ky. L.J. 155, 159 (2009) quoting NeighborWorks America, Foreclosure Statistics, http://www.fdic.gov/about/comein/files/foreclosure_statistics.pdf .  ↩

12. U.S. Congress, Senate Joint Economic Committee, Sheltering Neighborhoods from the Subprime Foreclosure Storm, Special report by the Joint Economic Committee, 1, 110th Cong., 1st sess. (Washington: GPO 2007) available for download at http://jec.senate.gov/archive/Documents/Reports/subprime11apr2007revised.pdf  ↩

13. Master Commissioners may also consider arguments based in equity. CR 53.04 notes that courts may “specify or limit [a commissioner’s] powers and may direct [the commissioner] to report only upon particular issues or to do or perform particular acts.” However, the rule is clear that absent such limitations, the commissioner “has and shall exercise the power…to do all acts and take all measures necessary or proper for the efficient performance of his duties.” Without a referral that specifically directs the commissioner to consider only issues of law, the commissioner has the duty to consider issues of equity, as well.  ↩

14. Consider, for example, the successful loss mitigation efforts of Shiela Bair and the FDIC in their administration of the failed California bank, IndyMac. The FDIC created a loss mitigation program that automatically qualified homeowners for a loan modification rather than placing onerous, opaque, and frustrating requirements on the borrower.  ↩

15. All of the servicer’s obligations under the Home Affordable Modification Program are outlined in the Handbook for Servicer’s of Non-GSE Mortgages.  ↩

16. Lillard v. Farm Credit Services of Mid-America, ACA, 831 S.W.2d 626 (Ky. Ct. App. 1992). See also, e.g., Farm Credit Bank of Spokane v. Debuf, 757 F.Supp. 1106 (D. Mont. 1990); Federal Land Bank of St. Paul v. Overboe, 404 N.W.2d 445 (N.D. 1987); Burgmeier v. Farm Credit Bank of St. Paul, 499 N.W.2d 43 (Minn. App. 1993); Western Farm Credit Bank v. Pratt, 860 P.2d 376 (Utah Ct. App. 1993).  ↩

17. See, e.g., Williams v. Nat’l Sch. Of Health Tech., Inc., 836 F.Supp. 273, 283 (E.D. Pa. 1993), aff’d, 37 F.3d 1491 (3d Cir. 1994); Fed. Nat’l Mortg. Ass’n v. Moore, 609 F.Supp. 194, 196 (N.D. Ill. 1985); Wells Fargo Home Mortg., Inc. v. Neal, 922 A.2d 538 (Md. 2007); Union National Bank of Little Rock v. Cobbs, 567 A.2d 719 (Pa. Super. Ct. 1989); Fleet Real Estate Funding Corp. v. Smith, 530 A.2d 919 (Pa. Super. Ct. 1987); Hayes v. M & T Mortg. Corp., 906 N.E.2d 638 (Ill. App. Ct. 2009); Countrywide Home Loans, Inc. v. Wilkerson, 2004 WL 539983 (N.D. Ill.); ABN AMRO Mortg. Group, Inc., 2009 WL 1066511 (Iowa Ct. App.); Ghervescu v. Wells Fargo Home Mortg., 2008 WL 660248 (Cal. Ct. App.).  ↩

18. There will be instances in which even when the NPV calculation demonstrates that foreclosure is more profitable that equity will demand some alternative other than foreclosure. Under HAMP, homeowners who have significant equity in their homes will be the least likely to qualify for a loan modification. The cruel irony of the program is that homeowners who have invested most in their homes and made payments most regularly and over the longest period of time will be the most likely to lose their homes because lenders are more likely to recoup the full Note value of the loan in foreclosure. Equity will require some solution other than foreclosure in these cases.  ↩

19. Maine has established the FDIC’s program as the NPV analysis standard at court-ordered mediations. “Mediations conducted pursuant to the program must use the calculations, assumptions and forms that are established by the Federal Deposit Insurance Corporation and published in the Federal Deposit Insurance Corporation Loan Modification Program Guide as set out on the Federal Deposit Insurance Corporation’s publicly accessible website.” 14 M.R.S.A. § 6321-A . An overview of the program and how the Excel spreadsheet operates is available here. The Net Present Value test is available as an Excel spreadsheet.  ↩

20. This abandonment of property becomes even more inequitable when one considers the bank’s active contribution to neighborhood disintegration. Judge Boyko notes that while “financial institutions or successors/assignees rush to foreclose [and] obtain a default judgment,” the bank will then “sit on the deed, avoiding responsibility for maintaining the property while reaping the financial benefits of interest running on a judgment. The financial institutions know the law charges the one with title (still the homeowner) with maintaining the property.”  ↩

21. See also Bank of New York v. Conway, 916 A.2d 130 (Conn. Supp. 2006).  ↩

22. In times of economic crisis, the state has the power to alter the terms of contracts between private parties to protect the vital public interests. “The reservation of state power appropriate to such extraordinary conditions may be deemed to be as much a part of all contracts as is the reservation of state power to protect the public interest in the other situations to which we have referred. And, if state power exists to give temporary relief from the enforcement of contracts in the presence of disasters due to physical causes such as fire, flood, or earthquake, that power cannot be said to be nonexistent when the urgent public need demanding such relief is produced by other and economic causes.” Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 439–40 (1934).  ↩

23. The Center for Responsible Lending [estimates] that over 800,000 Kentucky homes will lose an average of $1,800 in equity due to nearby foreclosures between 2009 and 2012. That’s $2.2 billion in lost equity statewide.  ↩

...in which I explain why the sycamore is my favorite tree

Whenever people ask me, “Ben, what’s your favorite tree?”[1] I always respond without hesitation: “Sycamore.”[2] I’m not really sure why, which is, of course, why we write.

First, there’s the sound of the name. Now, we English speakers have some good-sounding tree names in our arsenal. The neighborly Maple. The broad Oak. The sturdy and trustworthy Poplar. The playful Cherry. But, sycamore? Come on. That’s the best. It begins tight and focused and then spreads out across a delta in its final syllables. Just the sound implies so much about the tree itself. More on that in a second. I am still on how good the name sounds and how much fun it is to say.

Saying “sycamore” is like speaking jazz. It’s syncopated in just the right way. I wish people would ask me what my favorite tree was more often, just so I could say “sycamore” over and over again throughout the day. It’s really my only shot at having rhythm.

And, speaking of rhythm, let’s not forget to mention that the sycamore is one of those elite tree names with three syllables. Sycamore. Sassafras.[3] Hickory. The people who named these trees recognized that they deserved the time and attention three syllables required. These trees are not so common or prosaic as to need a short, one-syllable name. You know the trees: the pine, the spruce, the ash. No, these trees, wow!, deserve three.

Writers have have scientifically and undeniably proven that things grouped in threes are inherently more awesome than groups of lesser or more items. Designers know that store displays should group items in threes whenever possible. The best gods are the ones that are three-in-one. Just like the best unalienable rights.

The three-syllabled “sycamore” is irresistible. You should just give up and start loving it now while you think it’s still your choice.

The sycamore lives next to creeks and streams. It stands next to lakes and at the edge of swamps. It is comfortable in the tight, intimate spaces of a creek bed, but is also flourishes near broad expanses of open space. It has emotional range. As its name implies, it’s flexible. It can live in the “syc”, the “a”, or the “more”.

The sycamore also pioneers in places humans have destroyed: old fields and strip mines. When humans have used up a place, moved on, sycamores are among the first trees to return and begin the long work of restoration. The sycamore is a hopeful tree.[4] It plans for generations.

I love the sycamore in part because I love the spaces it inhabits. I prefer a river bank to a mountaintop. While the expanse of a mountaintop awes, awe is not comfortable. It’s not an easy emotion. A creek bed is a good place to return to reflect on an experience of awe. And, the sycamore will be there when you get back. The walls of a creek bed insulate, comfort. They allow me to focus on what’s right in front of me because what’s right in front of me is all I can see. I can sit under a sycamore and find peace. One could do worse than be buried under a sycamore.

I love the sycamore is because it is so easy to identify. After saying such profound and scientifically-verifiable things like “the sycamore is a hopeful tree,” you’re probably thinking I’m some sort of expert on trees. The truth is I don’t know squat about trees. So, I appreciate the sycamore for being so immediately and obviously a sycamore. I love that when I’m in a canoe on a lake, I can expect to look across the water and see the white and brown mottled bark of a sycamore. I feel like I know something about the world when I’m driving down the interstate and spot a sycamore next to a passing stream, it’s white branches immediately comprehendible.

The first old-growth tree I ever saw was a sycamore. In Fall Creek Falls State Park in middle Tennessee. The walls surrounding Fall Creek were so steep, loggers could never figure out how to get the trees out, so they moved on. They left behind massive sycamores, towering hemlocks, deep shade. Old growth sycamores are other-worldly; walking the creekbeds at Fall Creek Falls is like finding yourself in the middle of a Star Wars set. Sycamores just grow to an impossible girth and overlook the rushing water with the dignity of boulders.

The sycamore’s leaves are dense, hearty. You could make a soup out of them. You could write on them, bind them up, make a book out of sycamore pages that would last a thousand years. In the fall, walk under a sycamore and you will learn that the sycamore’s leaves are substantial even in death. They are thick, tough, undeniable. They endure boots.

Everything will eventually fade, even a sycamore’s leaves, its massive, beautiful trunk, the fundamental creek. But, for a season, we can say, “Here stands a giant.”

I knew it and loved it.

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1. Because, as you know, people are always asking each other this question. Basically every day I have someone–friend or stranger–ask me about my favorite tree, or fossil, or dinosaur, or time of day or sedimentary rock. It’s like people don’t know that T.V. exists. (By the way, for “time of day” the answer is: It’s that moment, not every day, when the sun has set for so long that all color is about to fade from the sky and a faint hint of green, almost as if by mistake, appears in the sky.)

    ↩

2. Because the name “sycamore” has been used to refer to a lot of different kinds of trees over the years, I should be specific, literally, and say the species I love is platanus occidentalis.

    ↩

3. God, the sassafras really has a lot to recommend it. I would respect anyone who said their favorite tree was the sassafras. The name is great: three syllables, fun to say, cool, rock-splitting etymology. The tree is fun to identify, and you can make cool stuff from it. Like tea. And root beer.

    ↩

4. Look, I grew up on the Transcendentalists. I am not going to refrain from anthropomorhizing things and drawing spiritual analogies from nature. It’s what I do.

    ↩

What Steve Jobs Means for Democrats

A lot of people have been writing about Steve Jobs recently, obviously. But, for my money,¹ John Siracusa’s essay is the most read-worthy. Let me rephrase: reading his essay and listening to this week’s installment² of Hypercritical (Siracusa’s show with Dan Benjamin, available in iTunes) is worth your time. Combined, Siracusa makes this great point about how what Steve Jobs really showed us was that big organizations can operate like startups, that the bureaucracy, the turf-wars, the red tape, the ossified, form-alized processes that generally drench large organizations are not inevitable features of large organizations. Rather, large organizations (indeed, the largest corporation in the world) can be nimble, innovative (again and again), iconoclastic, world-changing. Large organziations can have cultures and systems that encourages people’s intrinsic motivation. They can reinvent industries and reinvent themselves.

That’s what Siracusa said. And, he says this is important not just for the business world, but also education and governments.

I have recently written about how the Democrats’ biggest, most structural, most invidious challenge is that Americans are less and less confident that their government can be a force for good in their lives. As people become less confident, winning becomes harder and harder for the party that thinks government has and can still help people live their best lives. This is how Republicans can win the argument even while losing on the policy: if the fight is nasty, contentious, divisive, if it turns people off to politics, if it undermines people’s faith in government and politicians–Republicans win.

So, for Democrats, Steve Jobs’ most profound legacy may just be to show people that in the 21st-century large organizations can still do amazing things. They don’t have to become mired in bureaucracy. For Democrats, our survival will depend on proving this to the American people. We should start by studying the life of Steve Jobs and the corporation he built. There’s rumors of an Apple University that exists to train new Apple executives to think like Steve Jobs: to be as ruthlessly innovative, to focus on what matters and nothing else, to insist on perfection. For the country, I hope Apple University will write a book and that all our politicians will read it.

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1. I’m not actually paying any money to read these essays. Remember: everything on the internet is free. ↩

2. Siracusa (Twitter makes the point I’m talking about beginning in minute twenty, but you should really listen to the whole thing. Come on, people, it’s John Siracusa on Steve Jobs. ↩

Rest in Peace, Steve

Gold in the Water, Gold in the Bank

The Indigo Girls and their Boy

I was 12 when I first heard the Indigo Girls. I know it’s probably the worst cliché to begin an essay about the need for equal rights for gay and lesbian Americans by talking about the Indigo Girls, but dammit that’s where the story begins for me. I came to know about gay and lesbian people like most other sensitive kids who were into sensitive folk rock and came of age in the early 90s: through Emily Saliers and Amy Ray.

My cabin’s counselor was an undergrad at University of Georgia in Athens. It was 1990, and the Indigo Girls were touring the South while using Athens as their base. Each night, counselors were supposed to give devotionals to the campers before bed—a time for reflection. Ed, our counselor, mostly just played us Indigo Girls songs. The first song he played us was “Prince of Darkness.” Penned by Amy, it’s a song about deciding to use your life for something beneficial. It’s an obvious choice for a devotional.

My place is of the sun and this place is of the dark.

By grace, my sight grows stronger.

I do not feel the romance. I do not catch the spark.

By grace, my sight grows stronger.

And I will not be a pawn for the Prince of Darkness any longer.

Damn, that’s pure.

When you’re twelve, each day is a revelation; the world as you know it changes almost daily. I remember laying in my cot under the stairs of Pine Lodge, listening to their harmonies in the dark, flooded with their earnestness, thinking, “This changes everything.”

And, in some ways, it did.

On my way home from camp, I made my mom stop at a CD store (remember those?) and I bought the album for myself. I have bought every one of their 17 albums in the 21 years since then. It’s not overstating things to explain that the Indigo Girls have had more of an influence on my politics and worldview than any other band. I should probably explain that this is a high bar: if a band is not singing about current events, our shared obligations to one another, love, or politics, I’m not interested. In fourth grade, (my mom and) I did a report on musicians with social consciences. This is what happens when “We are the World” is one of the first songs a boy falls in love with. In high school, I was the guy listening to Woody Guthrie and Cisco Houston.

I don’t remember anyone explaining to me that the Indigo Girls were lesbians for a few years after I started listening to them. I can’t remember, but I don’t think Ed framed their music that way. I think I told someone they were my favorite band and they mentioned something about them being lesbians because I remember thinking, “WHAT? How did I not know that? I’m like their number one fan!” By the time I learned Amy and Emily were lesbians, they were too important to me to care whether they swung this way or that way. If liking, accepting, and admiring lesbians was wrong, I didn’t want to be right.

I grew up in Ashland, Kentucky. It’s not a backwards place, but it’s also not kind of place where a 12-year-old would know a bunch of gay and lesbian people in 1990. Not because there weren’t gay and lesbian people in my life; looking back, it’s obvious to me that I knew bunch of gay and lesbian adults. They just were never going to be out of the closet in Ashland, Kentucky in 1990.

Even though I didn’t know any gay or lesbian people personally, by the time I was in high school I knew enough (thanks to the Indigo Girls) to know bigotry and stand up to it. Our newspaper, the Ashland Daily Independent, often ran these “Heard on the Street” columns where reporters would go down to the Ashland Town Center Mall and ask regular people what they thought about an event in the news. Somehow, this counted as journalism. One time they asked people whether homosexuals should have the right to marry. I don’t remember all the responses, but I don’t think they were able to find someone who answered in the affirmative. I do remember one woman’s answer: she didn’t agree with gay marriage because if you allowed gays to marry each other, pretty soon people would be marrying their dogs.

(My mom and) I wrote a letter to the editor. I tried explaining that heterosexuals had proved to be pretty rotten at marriage (domestic violence, divorce rates, etc.) and speculated that it was time to give somebody else a shot. I tried explaining the logical fallacy in the woman’s opinion. And, I said I would much rather have a loving gay couple is my neighbor than a guy who beats his wife. Fifteen years later, I’m still proud of writing that letter.

A Jethro and his Boy

Jethro Nededog (his real name) was the first openly gay person I ever knew. After my freshman year in college, I studied Spanish at a New York University program in Madrid. Jethro was an NYU student who needed foreign language credits to graduate. I think I told Jethro he was my first gay friend. I think he took it upon himself to show me how ordinary gay people were. I think that’s why when I suggested camping out in an olive grove above Toledo, Jethro was the only one of my friends who took the bait.

For anyone considering camping out in Spain, here’s what you need to know: it gets ass-cold at night. Jethro and I were woefully—woefully—unprepared and it was all my fault. We had a couple of thin foam camp pads and a couple sheets. It must have been fifty degrees by 10 o’clock. This is how a kid from eastern Kentucky ends up spooning with a heavy set Californian of Guamanian/Filipino descent under an olive tree in Spain. To add to the absurdity, at around midnight, a discotheque just over the hill from us started bumping, so we shivered the night away to “Dancing Queen” and the medley from “Grease.” Amazingly, Jethro remained my friend after that disaster and we keep in touch through the magic of Twitter.

People like Jethro are the reason Republicans and social conservatives will lose. Jethro is funny, kind, up for any adventure, and quick to laugh; he’s a great storyteller and he listens well. In short, he’s exactly the kind of guy you want as a friend. As Jethro’s friend, I want him to enjoy the same rights and share the same obligations as I do in America. As more and more gay people become openly gay in America, more straight people like me realize just how many of their friends’ lives are affected by institutionalized, systematic inequality.

The Price of Being Gay

The ways in which our systems treat gays and lesbians as second-class citizens have been well-documented elsewhere. They are not allowed to visit ailing partners in hospitals. They are not allowed to adopt children. Their marriages are not recognized in most jurisdictions and are not recognized by the federal government. They pay more for health insurance for their partners. They pay more in taxes. Until recently, they were not allowed to serve openly in our armed forces. This is how we treated men and women who are willing to die for a country that treats them like inferiors.

Each person is chafed by different aspects of the existing inequality. For me, it’s in the tax code. Erin and I paid $1,825 less in taxes last year because we filed as a married couple.

One-thousand, eight-hundred, and twenty-five dollars.

Just for being straight and getting hitched.

A gay couple, whose union is not recognized by the IRS, will pay a Gay Tax every year when they file their tax returns separately. Chuck Hendrix—the guy who prepares our taxes each year—has been filing separately from his partner for 27 years. I think this chafes me so badly because this Gay Tax is quantifiable. There it is: $1,825—the value the federal government places on me being straight and suave enough to get a girl. Over the next 35 years, if I invested $1,825 at 7% (the average rate of return of the S&P 500 since 1950), I would have an additional $289,000 in my retirement account. Just for being straight. No telling how much less Chuck has in his retirement account because he can't file jointly with his partner. 

Preposterous. Outrageous.

"Today, this is news. One day, it won't be."

Because our government treats homosexual couples differently than heterosexual couples, the ministers (Derek and Ryan) at my church asked the congregation’s blessing to stop signing civil marriage licenses until they could sign civil marriage licenses for couples regardless of their sexuality. The church Erin and I go to is an Open and Affirming Church in the Disciples of Christ denomination. It was one of the reasons we joined. [1]

As an Open and Affirming community of faith, we believe God calls all people, regardless of sexuality, into communion with God and welcomes them into a life of discipleship. Christianity has been used to exclude, marginalize, and oppress for centuries and we think it’s time that stopped. Erin and I think the Bible is pretty clear on that point.

So, one afternoon after church our congregation voted to endorse our ministers’ decisions not to participate in a secular system of marriage that is only available to some of our members. If we can’t confer the civil benefits of being married on all our members, we won’t confer them on anyone. We’ll marry anyone in the eyes of God, but straight people can go to the courthouse to get their civil marriage licenses.

We voted and we wrote a press release. The Courier-Journal wrote an article. The LEO (Louisville Eccentric Observer) wrote about it. A local TV station interviewed our ministers. And then the story hit the wires. Emails of support and gratitude came in from around the world. Think Progress wrote a nice article. And then MSNBC called. Five days after we voted, Contessa Brewer interviewed our minister on her daytime show. As I told my minister, “Today, this is news. One day, it won’t be.”

I believe that. I believe that one day—hopefully one day soon—the fact that a church treats everyone the same regardless of their sexual orientation will not be newsworthy.

But, it’s not guaranteed. That’s what’s hard for me to remember. Too hard for me to remember.

Not There Yet

The long march toward equality for homosexuals can seem almost inexorable, inevitable. Polling among young people shows that it is apparently only a matter of time before bigotry becomes politically untenable. When a Republican (admittedly, a Republican from New York, so not really a Republican) says something like this, it feels like victory is assured:

You get to the point where you evolve in your life where everything isn’t black and white, good and bad, and you try to do the right thing. You might not like that. You might be very cynical about that. Well, fuck it, I don’t care what you think. I’m trying to do the right thing. I’m tired of Republican-Democrat politics. They can take the job and shove it. I come from a blue-collar background. I’m trying to do the right thing, and that’s where I’m going with this.

Small victories are all around us—but big injustices still exist. Ironically and inappropriately, instead of being emboldened to become more active in the gay rights movement, I find myself reacting to the movement’s small victories by adopting a mindset that says it’s only a matter of time until everyone in America enjoys equal justice under the law. Seeing progress as inevitable is seeing myself as unnecessary. Seeing progress as inevitable justifies my own inaction.

In many ways, it feels like we’ve already won.

We haven’t. I find myself needing to remind myself that progress is not guaranteed. Human societies often take a leap forward in the expansiveness of their thinking, adopting new understandings of community, family, and the role of government, only to fall backwards for decades or centuries. I know that the arc of the moral universe is long and that it bends toward justice, but it’s the humans that do that bending. That’s what I have to remember to remember.

That’s what this essay is for. This essay is to remind myself of the gays and lesbians I have loved and still love and to remind myself that my love for them is not enough. America and Kentucky still treat them with distain, still codify their difference, still tax them for who they love. And, this essay is to remind myself that despite America’s great strides forward, continued progress forward is not guaranteed but is my (our) responsibility.

So, what am I going to do?

1) I’m going to publish this essay.

2) I’m going to keep going to an Open and Affirming church.

3) Each year, I’m going to ask my tax guy how much Erin and I saved by filing as a married couple and I’m going to donate that money to organizations (like Fairness Campaign) and churches (like Douglass Boulevard Christian Church) and politicians (like John Yarmuth) who support equal treatment for all Americans, regardless of their sexuality.

I’ll go to marches. I’ll lobby in Frankfort. But, money matters. Money allows Fairness to hire more full-time staff; money allows Douglass to continue to minister (both to people and other Disciples of Christ churches); money allows John Yarmuth to stay in Washington, ready to vote to repeal DOMA when the votes are finally there.

The $1,825 Erin and I saved last year for being straight is ill-gotten gains. It’s a kickback from an unjust system. If every straight person who supports the equality of their lesbian and gay sisters and brothers gave this money to like-minded organizations and politicians, we would rapidly expand our capacity to extend justice to gay and lesbian Americans. We would make bigotry politically untenable much more quickly.

The day can’t come soon enough. Not just for gay and lesbian people, but for straight people, as well. The persistence of injustice reduces us all.

The Power of Two

Erin and I recently attended a wedding on the top floor of the Muhammad Ali Center. Today, Muhammad Ali is remembered in his hometown as much for his peacemaking work and his attempts to make America confront its unjust and oppressive systems as he is for his fighting. Before the ceremony, Erin and I were enjoying the sunset on the balcony overlooking the Ohio River. Somewhere in the muddy foundation of the river was Muhammad Ali’s gold medal. Perched above Louisville, an orange light, a warm breeze, my wife: the scene was perfect.

Except.

Except six stories below, gays, lesbians, and their allies had gathered for their annual Pride Festival. As Mark and Sarah swore their life-long commitment to one another, thousands of gays and lesbians stood, literally, in the background hoping one day for the same opportunity. I felt like a rich man in a developing country must as he stands at his penthouse balcony and looks across his city at the oppressive slums below.

For me, Erin’s love and our marriage is a daily miracle. It is my only wealth.

I know that some opponents of marriage equality say that gay marriage will destroy the value of their marriage. I feel the same way, except opposite. That I enjoy socially-conferred and state-sponsored benefits that my gay and lesbian friends cannot diminishes my marriage. As I survey the landscape from my penthouse of privilege, I want to see opportunity, not oppression.

We will not end the government-sanctioned marginalization of gays and lesbians without pain and effort. More gold medals need to hit the water and more gold coins need to hit the coffers of those organizations that support equal rights for all.

It is clear that we are turning the tide—quickly—in this fight. Much of it is due to the bravery of gays and lesbians who live their lives and love openly. Knowing that you have a friend or family member being directly harmed by the government’s unjust policies forces people to reconsider their apathy or antipathy.

More and more, people are beginning to see the moral poverty of the current arrangement and longing for justice for their co-workers, friends, and loved ones. Life, we know, is hard enough without unfair tax structures and government-sanctioned marginalization. Everyone should have a partner to help bear their burdens and magnify their joys. Everyone should be able to multiply life by the power of two.

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1. Footnote: We agree with the Iowa legislator who asked, “How many more gay people does God have to create before we ask ourselves if He wants them around?”

    ↩

The Problem

The problem with Democrats is that they don't have the courage of their convictions. 

The problem with Republicans is that they do. 

Showing Up

At work, I feel like a fraud. Five years after passing the bar, the civil justice process is still daunting, and each decision–no matter how minor–seems fraught with peril. Should I call or should I email? What if they ask a question I don’t know the answer to? Do I need to comply with this request for production of documents?

This is why jobs are awesome: they make us do things that terrify us. I swear, if I didn’t have a mortgage payment and too many animals to feed, I would not get anything accomplished. The only reason I’m going to build up any competency and expertise as a lawyer is because I have to. I have to show up every day. I have to take the depostion. I have to do the research and write the brief. I have to negotiate and settle my client’s claim. I have to go to trial.

Look, I would love to be the guy who said, “I don’t have to go to work, I get to.” “Every day is a joy.” And, to a large extent, that’s true. I have been very, very fortunate to have only law jobs that I thought were important jobs, worthy of my time and attention. They were fun–interesting, not drudgetastic–and I got to work with really, really smart people.

But, those jobs were also terrifying. More often than not, I had no idea what I was doing.

I had to do it.

I didn’t want to do it. I wanted to run away. I wanted to scream that I didn’t pay attention in law school, that I’m really not as smart as you think I am, that I shouldn’t be trusted with X1.

If I didn’t have to show up every day, I wouldn’t. I would seek the comfort of things I know I’m good at: laundry and petting animals.

I think God understands this about us. I think God knows that if we didn’t have to work, we probably wouldn’t ever be worth a damn. 2

Work is showing up every day.

If you want to get good at something, it has to be your job. You have to do it every day. Have to.

If I got to wait around for inspiration and expertise and confidence… Well, I guess that’s what purgatory must feel like.

I think this is what Wendell Berry’s character, Jack Beechum, meant when he said “If you’re not in debt, you’ll never be worth anything” in The Memory of Old Jack. 3 He meant that we are weak. We are fearful; and the only way we’re going to do something–something amazing, something worthwhile, something that risks failure–is if we have to.

In some ways, I think our challenge is figuring out ways to make what we want to do well what we have to do every day. Some feel-good thinkers will give you the exact opposite career advice: Find a job you want to go to every day. Follow your bliss. That’s fru-fru hogwash.

You know where my bliss leads me? To a living room filled with laundry that needs to be folded and a big TV broadcasting the NFL.

In retrospect, I think this is one of my best skills: finding work that scares the crap out of me. Deep down, when I am most honest with myself I will admit: I want to become a great attorney. That only happens if I go to work every day and risk failure. I have learned that expertise is not magic. It’s showing up and risking failure. Again and again and again.

It’s not pleasant, it’s terrifying.

It’s the only way.

It’s not what I want to do, it’s what I have to do.

Every day is a new day. To fall on my face.

This is how you get good. 

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1. Where “X” is an opinion on the constitutionality of Kentucky’s educational system, a reckless driving trial of a Palauan cement truck driver, negotiating a plea deal for a Bangladeshi (falsely) accused of receiving stolen property so that he could remain in Palau rather than face deportation, a constitutional challenge to Palau’s prison conditions, a multi-agency, county-wide response to the foreclosure crisis, a legal brief in a multimillion dollar suit alleging negligence on the part of Kentucky’s largest law firm, a presentation about foreclosure defense to 250 skeptical attorneys. ↩

2. This phrasing is fraught with potential misunderstanding. I am not saying that our worth in God’s eyes is tied to the work we do on Earth. I think God has made it abundantly clear that our worth is our worth, no matter what. Whether we like it or not. Further, the phrase “worth a damn” is not meant to imply that God finds inaction or laziness damn-worthy. Rather, all of this is to say that my utility to others on this Earth, my ability to seek justice for them in our civil justice system, is directly related to being compelled to show up every day whether I want to or not.  ↩

3. Not an exact quote. If you know the real quote or can find it, please use the “Contact” page to help me correct this. ↩

What She Said...

Fiddling

I will do almost anything to avoid writing. Here are a few things I do to avoid writing:

1. Scoop cat poop.
2. Organize the pantry.
3. Go for a run.
4. Call somebody.
5. Watch TV.
6. Sweep.
7. Vacuum.
8. Mow the yard.

But, recently I have stripped all that away by waking up early and making time to only write. Yet, sometimes I find myself still not writing. Here are the things I will do in front of my computer to avoid writing.

1. Explore different blogging platforms.
2. Explore potential functionality on my own site.
3. Add or subtract current functionality from my site.
4. Check and see if anyone talked about my last essay on Facebook or Twitter.
5. See if Apple’s mail.app is still sub-par (yes), and see if there are any other mail clients that I might use instead of the Gmail web interface (there aren’t).[1]
6. See if Safari is still slower than Chrome. (Yes.)
7. Answer email. Admittedly, this is one of the better things I could do in front of a computer instead of write, but this makes it even more insidious because it is so much easier to convince myself to write emails not essays. [2]
8. I’m going to tell myself that working on links and photos for already-written essays is just as important as moving the cursor.
9. Pay bills.
10. Read my RSS feeds.
11. Update my OmniFocus lists.
12. Update my hours and mileage.
13. Explore new text editors.

Just now, between typing #4 and #5 of the “things I do at the computer to avoid writing” list, I literally spent 15 minutes researching Disqus and trying to decide if I wanted to replace the commenting functionality native to Squarespace with Disqus. That’s right: while writing about what I do to avoid writing I did the exact thing I know I’m inclined to do to avoid writing.

I spent most of my evening yesterday moving BlueGrassRoots from Tumblr to Squarespace. Yesterday morning, I spent most of my writing time trying to add Google Analytics site monitoring to the Tumblr site I abandoned 12 hours later.

This is what I do: I fiddle. Since starting this site, I have worked with no fewer than six text editors (Microsoft Word, Apple Pages, nvAlt, Byword, WriteRoom, TextEdit) and taught myself a (very easy) new syntax, MultiMarkdown, for writing on the web. All of this exploration has been fun and it actually helps me get stuff done quicker, more elegantly, and with less friction. But, that’s what’s so dangerous about it. Because it helps me write, I can convince myself that it’s time well spent.

It isn’t.

I am very good at telling myself that all of the stuff that supports the success of my writing is just as important as writing.

It isn’t.

Things that are important:

1. I write when I’m supposed to write.
2. I keep pushing the cursor across the screen.
3. I continue to try to say true things, especially when I’m scared to.

Merlin Mann (from whom I am basically plagiarizing [3] this entire essay), says that you are always exercising a muscle. Whatever you do, you’re either practicing #winning or practicing losing. When I fiddle, I’m exercising my fiddling muscle. I’m exercising my Muscle of Failure.

That’s what’s so dangerous about all of this. It’s not that I just burned 15 minutes of my morning writing time looking at commenting platforms for my stupid blog. It’s that practiced burning 15 minutes of my writing time on something inconsequential. That I did it this morning makes it that much easier and more likely that I will do it tomorrow.

Pretty soon, I’m not a writer but a fiddler.

This is why I have an entire document devoted to a completely unpublishable inquiry into the many and various ways that I suck. I figure, if I can’t think of anything else to write about, well, there’s always that. I’m sort of the world’s preeminent authority on that topic. Though, I’m sure Erin could also write a pretty compelling piece on the subject, as well.

When I’m writing about how much I suck, at least I’m exercising my writing muscles, not my fiddling muscles. This is more important that I can tell you.

Look, we all have things that we wished we did. Play the guitar more, spend more time with the kids, budget, go to church, call Mom, smoke more cigarettes with friends[4], take more photographs, get organized. These are all worthy goals. But, they’re also the sort of things we can carry around guiltily for the next three years. They’re the sort of things that can make us feel like out-of-control failures with no agency in our own lives.

When we feel like we should be doing something but do not act on it, we are exercising the inaction muscle. We are practicing feeling awful about ourselves and our abilities.

It’s like Yoda said, “Do or do not. There is no try.”

Here’s my advice (to myself): If you can’t take action on something now (whether it’s because you’re afraid, overcommitted, uninterested, whatever), put it on your calendar to review two, six, twelve months from now: “See if there’s space in my life to pick up the guitar again.” Then, move on. Continuing to feel like you should do something is making it harder to ever take action on that thing. Seriously, let it go. If you don’t, that weight is going to grow in your hands and drag you to the bottom of the deepest ocean. Your lungs will burn and the only light will come from a fish that will eat you alive.

Let it go.

Practice doing, not wishing. Practice moving the cursor to the right. Even when you’re scared. Especially when you’re scared.

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1. Srsly, people, Google has had the “Send and Archive” button for years now. It can’t be that hard. Make it so.  ↩

2. Writing emails early, beyond clearing out your inbox, has the added benefit of putting a timestamp on the email that says to the recipient, “Seriously, what are you doing with your life?” Wait, maybe when people get emails from me at 4:30 in the morning they are thinking, “Man, what is he doing with his life?” I’m going to have to think about this.  ↩

3. I’m not even really kidding about this. There is a good chance that every single sentence in here is a direct quote from something he said somewhere.  ↩

4. Note to self: those days are behind you, Ben, and they’re not coming back.  ↩

She is Not Going to Kill Herself for You: An Evening at the Ballet with My Classy Wife

Anyone who knows me and knows my wife knows that she is all class and I am all ass. It’s not that I’m self-centered, it’s just that I am always, always, always going to consider myself first. Class requires that you consider others first. That’s what Erin does. One of my good friend’s mom died recently. Erin asked if I wanted to send flowers; I considered it and said no. She considered me and my answer, and said yes. It was my friend’s mom, but she ordered the flowers.

You know that famous scene in As Good as it Gets where Jack Nicholson explains his love for Helen Hunt by declaring, “You make me want to be a better man”? That’s not really the way it is in my marriage. With Erin, I am a better man; I don’t really have the option of choosing to be a better man like Jack Nicholson apparently thought he did. Erin makes me a better man, whether I like it or not.

It should surprise no one, then, that my wife loves the ballet. It’s basically the classiest thing around. Growing up, Erin’s childhood aspiration of being a Solid Gold dancer evolved into becoming an accomplished ballerina. But for cruel Nature that robbed her of the last 8 inches of height, Erin would probably be dancing today.

Earlier this week, Erin told me she had won tickets to the opening night of The Three Musketeers. I agreed to go (and here I am using “agreed” in the loosest sense of the word possible). Though we live in Louisville and though Erin loves the ballet, we have not had the time or money to enjoy the Louisville ballet. In our three years in Louisville, I had not been to the Kentucky Center for the Performing Arts.

Even though my attendance was compulsory, I was genuinely excited to go. Mostly just excited that Erin would have the ballet in her life again. I’ll be the first to admit that living with me must be difficult for someone, like Erin, with such classy and classic sensibilities. I was happy that she would be able to enjoy a oasis of class in my desert of bad taste.

As the lights fade, I stop reading my Twitter feed, put my phone in my pocket, and realize—despite my fourteen English classes at Davidson College and thirty-three years on this earth—I have no idea what The Three Musketeers is actually about.

Three guys… Are they French? Do they have muskets? Why do I always think of them as having swords if they’re musketeers?

So, I spend the first fifteen minutes trying to read tiny text under dim light with Erin whispering helpful things like, “That’s Buckingham. The Queen loves him. They love each other.”

The music turns ominous. “The Cardinal is a son of a bitch.”

Look, what’s going to happen in this essay is I’m going to make fun of the ballet from the perspective of a yokel (me) who doesn’t understand the ballet. But, before I do, I want you to know I’m taking the easy way out. It’s easy to write a story mocking and dismissing and joking about the ballet. But here’s the truth: the ballet is awesome and if you don’t like it then a) you’re dumb and b) the joke’s on you. And me. It would be much harder for me to actually study the ballet, research it, learn it, and appreciate it and write an essay about that. Instead, I’ll just make some whimsical observations about a performance that deserves better and move on.

I turned to the program to learn what the hell was happening on stage. Here’s the deal with the narrative in the program: it is all nouns and verbs. 

The Queen has fallen in love with the English ambassador, Buckingham, and the Cardinal sees an opportunity to discredit her. (“The Queen is kind of a tramp,” Erin whispers.)

…

The Cardinal’s guards, led by Rochefort, mock D’Artagnan’s poverty. he challenges them, but they attack him from behind and leave him lying unconscious.

The ballet, however, is all adjectives and adverbs, usually amounting to some variant of “a lot.” The dances exist, as far as I can tell, to express how deeply in love the Queen and Buckingham are, just how devious Milady is, how controlling the Cardinal is. The answer to all of these questions is: a lot.

SPOILER ALERT

My beef with The Three Musketeers ballet is not with the dancing. It’s not with the choreography or the set design or the music. If this ballet sucks, it’s because the plot sucks. The Queen of France is married to an effete king. She’s in love (a lot) with the ambassador from England, Buckingham. In order to avoid discovery of their affair, she pleads with him (successfully) to return to England. But (and this is just where everything goes downhill) before he leaves, the Queen gives Buckingham a priceless, unique diamond necklace that had been a recent gift from her husband. To remember her by. This is just the most insane thing I’ve ever seen. That anyone, even the most love-infested teenager, would think this ends well stretches credulity. My willful suspension of disbelief at this point turned into a willful hatred of the Queen.

Long (long) story short, the Musketeers retrieve the necklace and return it to their queen just in time to avoid scandal. But, not before Milady kills Buckingham in the process of stealing the necklace from him in order to discredit the monarchy.

When Buckingham died, I was sitting on the edge of my seat. 

I think I was the only one.

Buckingham dies at the hands of Milady, one of the Queen’s servants who is secretly under the control (a lot) of Cardinal Richelieu. Five minutes before Milady stabs the crap out of Buckingham, she successfully steals this priceless, unique diamond necklace by spraying a perfume that made the necklace’s guards fall asleep. Why not just spray the perfume on Buckingham??? His death is completely implausible.

But, die he does because he allowed the Queen to insist on giving him this stupid necklace.

(As an aside worthy of parentheses, the necklace does make a really cool prop in a number of dances in this ballet. When two people are fighting over the necklace, they are both holding onto the necklace which makes some dance moves extra dramatic. Now you have all read the best ballet criticism I have ever written. “Cool.” “Extra dramatic.” Erin is weeping right now.)

When D’Artagnan and the Musketeers successfully returned the necklace to the Queen, she is ecstatic (a lot) and relieved (a lot) and grateful (a lot). Does she grieve the death of her English lover? Hell no. Does she (rightly) blame herself for his death? Nope. Does she dance around all happy-like? Yep.

“Well, what did you think?” Erin asked me as we walked out with the throng of satisfied ballet-goers.

“That bitch needed to die at the end. She should have committed suicide or something.”¹

The overriding lesson I learned from The Three Musketeers is this: if you’re having an affair with a chick, don’t take a goddamn necklace from her that her husband just gave her.

But, I also learned a little about the ballet. Throughout the ballet, I was wondering how much artistic leeway the dancers have in a production like this. The answer is: not a lot. On the ride home (after I explained to Erin when she should and should not commit suicide for taking imbicilic actions that ultimately lead to my violent, untimely death), Erin explained to me that the flow of action (prologue, two acts, three scenes per act), the music, and the dances are all from the original. And, by “dances” I mean “movements down to the smallest twist of a wrist”. That’s canonical. The choreographer’s job in a production like The Three Musketeers is not to come up with original dances, but to ensure that these dancers replicate the original movements as closely as possible. As Erin explained, “you don’t noodle with Handel’s “Messiah” and you don’t change The Three Musketeers.

What was most interesting to me was learning this choreographer would know the dances because he had studied under a choreographer who had studied under a choreographer who had studied under a choreographer (etc.) who had learned the dances from the original, André Prokovsky. In this case, I think the choreographer studied directly under Prokovsky, but the point is that this is an oral and embodied tradition that survives in a digital age. That appeals to me.

Where a production can deviate from the canonical original is in set design and costuming. I have absolutely nothing insightful to say about either.

Apparently there is some leeway with choreography, though Erin has still not been able to explain to me exactly what edges are okay to fiddle with. For example, in the Louisville Ballet’s production, one of the Cardinal’s guards gets accidentally stabbed in the nuts no fewer than three times throughout the action. This, I’m told, is not canonical. I’ve got to say: this flourish felt a little patronizing to me. Each time the poor dude’s jumbles got poked, his eyes would cross, he’d grab his groin, and the audience laughed. But, I worry that this detail was added to appeal to the groundlings in Louisville. It was cute the first time, tolerable the second time, and overdone the third time.

In closing, I need to say a word to the men out there. Women, you can stop reading. Use the time you save to begin considering the times at which suicide might be an appropriate response to something you did to your lover.

Okay, men: I know some of you are reading this and thinking, “You know, I’d go to the ballet just for the hot, lithe young women with great legs in short skirts.” I hear you. I need to warn you, though, that there are also hot young men on stage. These men are incredibly athletic, definitionally sensitive, and wearing tights that are snug in all the right places. They support, physically and emotionally, the women with whom they associate. You’re basically taking your date to a moving cover of a romance novel. Just so you know. You need to ask yourself, “Is this how high I want to set the bar for myself?” Know that with every appreciative sigh that comes from your date as you’re sitting there in the darkness of the dance she is cataloguing the ways in which you will fall short in the future. And, know, too, that after you’re dead, she’ll be happy (a lot) just to have her necklace back.

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1. 
   

   Now, I know that Western literature is bursting at its chauvinistic seams with stories of hysterical women dying or committing suicide when they didn’t deserve or need to. On balance, Western literature is still, I’m sure, a phallocentric endeavor. But, that was one cold Queen who got exactly what she wanted. ↩