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Brisketexan

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Posts posted by Brisketexan

  1. Here's a quick summary from a pretty good blog on the implications of asserting one's fifth amendment right in a civil proceeding. It's as to Texas law, but the Texas rules of evidence are rather analogous to the federal rules, and I expect that the implications in a federal civil case are similar (the author even cites to federal cases on the matter; I confess that I've only had this come up in state court cases, never in a federal case).  His BLANKET assertion of the fifth amendment right may not stand up, and it has negative consequences just the same.

    Quote

    First of all, any party or witness in a civil case may be called to testify, whether they are facing criminal charges or not.  Second, witnesses in civil actions do not enjoy an unfettered right to refuse to answer questions on Fifth Amendment grounds. Finally, in a civil case it is perfectly permissible for a judge or jury to infer that a witness is guilty of wrongdoing if they invoke the Fifth Amendment privilege against self-incrimination in response to a question.

    .....

    when a witness in a civil case invokes the protections of the Fifth Amendment, the inquiry does not simply stop there. It is well-settled law in Texas that when a witness in a civil case invokes the Fifth Amendment, the assertion of this privilege is subject to scrutiny by the judge, who will determine whether the refusal to answer is made in good faith and is justifiable under the circumstances.  Such an inquiry is a delicate undertaking, because the witness cannot be compelled to disclose the very information that the privilege protects, but in order to uphold the privilege, it must be shown that answering the question is “likely to be hazardous” to the witness.

    .....

    Once it has been established that the witness has a right to refuse to answer a question, what happens next?  Simply stated, the judge or jury can infer that a witness committed the very crime that he was protected from testifying about.[2] But infer is all they can do. Invoking the Fifth Amendment does not give rise to a presumption of culpable conduct nor is it, standing alone, sufficient evidence to prove wrongdoing. Courts have routinely held that a Fifth Amendment claim of privilege will not substitute for other relevant evidence, pointing to the language of the U.S. Supreme Court case which first recognized the negative inference concept, that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” 

    The failure to offer probative evidence in addition to the assertion of the Fifth Amendment privilege leaves the fact-finder with only an inference, and because an inference is considered nothing more than a mere suspicion, the inference in and of itself does not constitute more than a scintilla of evidence. Therefore, without more evidence, the negative inference which is permitted in these circumstances will not support a finding of fact or raise a fact issue which precludes summary judgment.

    .....

    The bottom line is that in a civil case, the invoking of the Fifth Amendment is powerful evidence – juries instinctively understand that in order for a person to claim the right not to self-incriminate, there must have been incriminating conduct to begin with. When instructed by the court that they may consider this as evidence of guilt, most juries do not hesitate to do so.  So, while the Fifth Amendment claim may be used as the nail in the coffin of your opponent’s case, there will be no burial without something more.

    So, summary:

    His invocation of the Fifth Amendment may be too broad, and if the plaintiff asks for an inquiry, the judge may not accept it as to all testimony/issues.

    His invocation of the Fifth Amendment allows for an INFERENCE that the witness committed the crime at issue (which is often the same set of acts that give rise to civil liability).  The inference alone is NOT enough...but add some actual evidence on top of it, and it's pretty damned powerful.

  2. 4 minutes ago, retread said:

     A nurse on his staff said Ronny Jackson had written himself prescriptions, and when caught, he asked a physician assistant to provide the medication.

    And at a Secret Service party, Jackson got intoxicated and “wrecked a government vehicle,” NYT reports.

    I just see a dude who likes to party.

    Respek, right?

  3. 8 minutes ago, SuingToGetAMessageBoard? said:

     I think their proposed special masters we’re all a joke though. She’s not gonna give them that. 

     

    3 minutes ago, kevwun said:

    An unbiased Special Master is of no use to them, which will be amusing.

    Correct on both counts.

    They asked for a special master, they're gonna get one.  Can't bitch about that.

    And to bitch about the specific PERSON that ends up appointed....they're going to have to find a way to claim that a previously-sitting judge (or someone similar) is hopelessly biased....while simultaneously arguing that one of their choices would have been better.  And, oh, they WILL make that argument.  They'll just look like utter fools doing it.

  4. 1 minute ago, TwiceHorn said:

    So she did appoint a Special Master then?

    I don't think it's been done -- I suspect that she'll enter an order 1) appointing a specific special master and 2) outlining procedures all at once.  She's already selected the likely special master, she just wants to nail down the process.

    And it's the safe, smart thing for her to do.  Give the defendant what he asked for, then he has one less thing to bitch about.  It's the prudent course of action, makes the case more appeal-proof, etc.

  5. 6 minutes ago, DixonHur said:

    Ok, this literally made me laugh out loud.  Thanks Brisket, I needed it.

    Well, I THINK I used the term correctly here.  Correct?  IQ is based on median score - half of folks score below that median score, half score above it (and, as I understand, IQ tests try to set it so that a score of 100 reflects the true median -- it's adjusted over time, as (hard to believe) we are getting smarter).

  6. 52 minutes ago, wildcat09 said:

    Maybe before Citizens United. Now so long as there isn't an express agreement to exchange money for a specific political favor (e.g. "to vote yes on Bill X") it's perfectly legal. 

    Correct.  What it amounted to was NOT saying "donate money to me, and I'll vote your way."  What he said was "donate money to me, and I won't even LISTEN to your ideological opponents....unless they donate money, too."

  7. Do you know why people watch Jerry Springer?  Because they're stupid.  They are not very intelligent.

    You know how you correct that?

    You don't.

    50% of Americans are of below-median intelligence.  Telling the not-bright to "be smart and do smart stuff" would be like telling my slow ass to "run faster, and win the marathon!"  I can't do it.  No matter how much you tell me how to do it, my old, bum-knee, slow, fatass, ain't winning any marathon.

    Jerry Springer watchers aren't going to be doctors and such.  Shit, many of them aren't sharp enough to hold down any real office job, or job that requires critical thought.  And blue collar jobs are drying up (yes, they're out there, but not like they were in the manufacturing boom years).

    Add to that how precarious the situation is for someone on the edge of poverty (get arrested, get sick, have your car break down, and it ALL falls apart -- you lose your job, your place to live, everything), and it's really fucking easy to be poor.  It's actually somewhat hard to "not be poor."  I'm not making any excuses for anyone -- I'm simply observing the reality on the ground.  Sure, folks from the most wretched places end up being rich....but the ODDS are way against them.

    Give me 100 kids from families that earn $100k plus, and pit them against 100 kids from families that earn under $40k.  Which GROUP will be the most successful?  Same schools, same city, etc. -- which one are you betting on?  Odds matter.  Chances matter.  Advantages matter.  They all figure in to your success.  In most cases, they figure in quite significantly.

    But, it's much easier to pretend that you had no advantages, and tell other folks to "get off their lazy asses and work for your success like I did."  That's just fucking asinine.  I am quite successful.  Some of it is do to innate ability (I was born pretty smart - which is good, because if I was counting on my athletic ability to get me out of the hood, I'd have been fucked).  A good bit of it is due to hard work -- wherever I found myself, I worked hard (eventually -- when I was a young school kid, not so much, I coasted on being smart).  But a CRAPLOAD of it is due to the fact that I had a middle class family, good nutrition, attentive parents, who sacrificed to send me to private schools, were voracious readers and instilled a love of reading in me, etc. etc. for about 1,000 more qualities.  In short, the family I was born into was by far the BIGGEST factor in my success.  Pure, dumb luck.

    My mother's half sister was a worthless junkie.  She had a daughter with some other junkie.  We helped her with the kid for a while, till we pushed her to put her daughter into the foster care and adoption system.  She was adopted at age 6, and grew up in a good, strong family with dedicated parents.  That change in circumstance took her from a dysfunctional kid, to a thriving one and then successful adulthood.  Family unit matters -- it's the biggest determinant of success, across the board.  So, what you're REALLY telling a shitload of people is "choose to be born into a better family."  Like I said, asinine.

    • Like 4
  8. 11 minutes ago, EastTexan said:

     

    Best I ever ate was from a small butcher in a little town in Florida. Friend recommended it. Haven't found any that good since. Been along time ago.

     

     

     

     

    Best I had was from Babineaux's meat market in Breaux Bridge.  It was spicy porky heavenly goodness on a cracker.  When the old man decided to hang it up, none of the kids wanted to take over, and now it's gone.  Gives me a sad.

  9. there are no words

    They don’t care.

    Every accusation (crooked Hillary! She is owned by Wall Street!) is a confession. Every. Fucking. One.

    And the Trumpkins don’t care. If anyone else does this shit, it’s disqualifying. Team Trump does it, and it’s fine. Lather, rinse, repeat.
  10. No you are being deliberately stupid.  There is no contradiction at all.  You are arguing that the "industry" is ONLY HUD and traditional banks.  It is not.  How is this hard for you to grasp.  I will go slowly again.  HUD has different terms than traditional banks.  HUD does not have different terms from a myriad of other non traditional options for financing multifamily.  HUD is not unique in the "industry" but they are unique from traditional  banking that makes up a portion of the "industry".  All of the non traditional financing sources for multifamily will give you equivalent terms to that of HUD.  Otherwise, they would never get any business.

    If other lenders will give you “equivalent terms,” how are HUD’s terms not just an advantage, but the “biggest advantage?” How can something I can get the equivalent of somewhere else be my “biggest advantage?”

    Are you enjoying this? Because I am.
  11. 1 minute ago, sheeeit said:

    Seriously?  Is this how you argue as a lawyer?  I hope not.  

    The market for financing is not, as you seem to argue/think, made up solely of traditional banks and HUD.  There are a myriad of financing options in multifamily.  There are advantages and disadvantages to all of them.  Collectively, they make up the market.  HUD, by no means, dominates the financing market for multifamily.  You seem to be arguing that HUD offers better than market terms.  If so, why don't they have all the business?  This is just stupid.

    You asked a legitimate question about why someone would do a HUD loan that had higher up front fees and a market interest rate.  I tried to explain why someone would go that route.  

    What happened to you?

    It's exactly how I argue as a lawyer.

    I win.  A lot.

    My percentages get even better when dealing with an opposing witness like you.

    I'm not arguing shit -- you are.  I'm just quoting you.  And you got caught in a flat-out contradiction.  Because you lie and bend the truth when it suits your purposes.  You don't like getting caught.  Most liars don't.

    • Like 1
  12. 3 minutes ago, sheeeit said:

    Simply because of HUD's terms, the industry has had to match them.  So, yes, it is market.  

     

    35 minutes ago, David Dennison said:

    The biggest advantage to the HUD deals (and they are fee heavy) is that they will give you a fixed rate loan with a longer amortization than traditional banks.  HUD will actually do 40 year ams and fix the rate for 25 yearsTraditional lenders will be less expensive up front but will only fix the rate for 10 years or so and usually they will not do an am schedule over 20 years. 

    If quote 1 is true, quote 2 is false.

    If quote 2 is true, quote 1 is false.

    Smooth move.

  13. 11 minutes ago, sheeeit said:

    Not much, it is a question of risk.  The biggest advantage to the HUD deals (and they are fee heavy) is that they will give you a fixed rate loan with a longer amortization than traditional banks.  HUD will actually do 40 year ams and fix the rate for 25 years.  Traditional lenders will be less expensive up front but will only fix the rate for 10 years or so and usually they will not do an am schedule over 20 years.  With the HUD deal you give up cash up front to lock in todays interest rate.  They are also assumable, but so are most traditional loans.

    if you are going to sell the asset in the next 5-7 years then HUD is nott he best option but if you intend to hold it long term, then HUD makes some sense.

    So, the bolded part was a lie.  I'd say that different terms (length) and different periods of fixed vs. ARM rate are, ummm, significant differences from traditional financing.  Which renders THIS description false as well:

    Quote

    he fact that people think a program where the borrower pays hundreds of thousands of fees as well as market interest on a loan is welfare is awesome. 

    He's NOT paying market interest -- not over the life of the loan he ain't.

  14. 1 minute ago, sheeeit said:

    If Hannity used it, then he paid hundreds of thousands in fees to HUD and is paying market interest on the debt. 

    Wait.  There's a program where I can get financing to buy real estate, I pay the going interest rate on the financing, AND I pay extra hundreds of thousands in fees?

    SIGN ME UP!

    Seriously, I don't know much about these programs, but you just described a deal that I would think anyone with rudimentary math skills would run away from.  What is missing in your description?

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