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The United States District Court of the Northern District of Florida made a landmark decision in Brenner, et al. v. Scott, etc., 999 F.Supp. 2d 1278 (2014) regarding the constitutionality of Florida's restrictions on marriage.  Although not essential to its holding, the Court makes reference to a U.S. Supreme Court "summary disposition" that a defendant offered. The Court stated that US Supreme Court “summary dispositions” bind lower federal courts – unless “doctrinal developments in the Supreme Court undermine the decision.” Aspects of summary disposition are addressed in Alex Hemmer's 2013 informative article, "Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court."


Summary Dispositions
"Summary dispositions" are provided for by Supreme Court Rule 16 which provides for the "disposition of a petition for a writ of certiorari." It provides that after the Court considers the certiorari briefs (which are shorter than the later full merits briefs), it "will enter an appropriate order" and that the "order may be a summary disposition on the merits."

Hemmer notes that this rule does not explain what a summary disposition is, when or  why such an order is appropriate, and what precedential value it hold. He explains that such "questions are left to the Court to work out in practice" and that summary disposition orders play an "ambiguous role" and have "amorphous boundaries."

Three Types of Summary Dispositions
Hemmer explains that "[o]ver the past forty years, the Court has relied on three common, if controversial, forms of summary disposition" as follows:

• summary orders, granting the certiorari petition and affirming or reversing the judgment without explanation (generally per curiam - "by the Court" or unsigned) 
• summary opinions, granting the certiorari petition and affirming or reversing the judgment with an explanation, usually with a brief discussion of the facts and issues involved (generally per curiam) 
• reconsideration orders - "grant, vacate, and remand" ("GVR"), here the court grants the certiorari petition, vacates the judgment below and remands the case to the lower court for "reconsideration". Hemmer, with references makes to Supreme Court cases, states that technically a GVR does "not amount to a final determination on the merits" but rather merely indicates that the Court believes that upon reconsideration, there is a "reasonable probability" that the lower court would reject a legal premise upon which it relied

Hemmer reviews the extent and nature of summary disposition used in the Warren Court (alot of summary dispositions with little explanation), the Burger Court (little summary orders, alot of GVRs), and the present Robert Courts (use of summary orders and GVR, but with expansion of use in a managerial capacity).   Hemmer opines that the Robert's Court's expansion of use is not only where the decision below did not rely on changed legal premises or present clear error but for the court below to "consider arguments or case law that they could have relief on but did not"- that is "in search of errors."  He notes Justice Scalia's lack of favor - "GVR-in-light-of-nothing."  
Functions of Appellate CourtsHemmer and the authors he references explain that generally courts of appeals can have two capacities: "a lawmaking capacity in which they" "announce, clarify, and harmonizes the rules of decisions" and "an error-correcting capacity, in which they" "determine if prejudicial errors were committed" in "applying those rules to facts."  
Hemmer cites an author who stated that the Supreme Court "is not, and has never been, primarily concerned with the correction of errors in lower court decisions."  Hemmer questions the suitability of "summary opinions" for "making law""because they are not the products of merits briefing and oral argument." Hemmer argues that the best way to understand "summary dispositions" (and that the way the Roberts Court does understand it), is as a "tool to manage and oversee the docket of the lower court" and to ensure that the "lower-court decision take account of intervening precedent without the Court spending its own time and energy on cases that pose similar issues." Hemmer opines that in this manner, the Court acts in a "managerial capacity" rather than in a "lawmaking" or "error-correcting capacity." 
Merits or Non-Merits DecisionsProfessor Vikram Amar explains in a blog post, that these summary dispositions,  are based "merely on the certiorari-stage briefs, without the benefit of arguments or merits briefings." He explains that in GVR dispositions, the Court "is formally not weighing in on the merits but merely giving the lower court a first opportunity to apply the intervening decision." But that the some types of summary dispositions do reach the merits of the appeal. 
Precendential Value of Supreme Court Summary Dispositions In Hardwick v. Bowers, 706 F.2d 1202 (11th Cir. 1985), the Court cited the general rule of Hick v. Miranda, 422 U.S. 332, 344 (1975) that a "summary affirmance of the Supreme Court has binding precedential effect." 
Limitations on the Scope But the Court in Hick also held that if the summary disposition lack an explanation of its reasons, its "holding must be carefully limited." The Hardwick  Court stated that a summary affirmance "represents an approval by the Supreme Court of the judgment below but should not be taken as an endorsement of the reasoning of the lower court" and that "finding the precise limits of a summary affirmance has proven to be no easy task."  The Harwick Court  explains that a court "seeking to identify the issues governed by a summary affirmance should examine the issues necessarily decided in reaching the result as well as in the jurisdictional statement" and cited another Supreme Court case that a summary affirmance is binding to "precise issues presented and necessarily decided." 
Subsequent Developments   The Hardwick Court also reviewed that a "summary disposition binds lower court only until the Supreme Court indicates otherwise" but "developments subsequent " subsequent to a summary disposition" may "undermine whatever controlling weight it once may have possessed." 
Hardwick reviews that "[d]octrinal developments need not take the form of an outright reversal of the earlier case. The Supreme Court may indicate its willingness to reverse or reconsider a prior opinion with such clarity that a lower court may property refuse to follow what appears to be binding precedent."  The Court further states that "[e]ven less clear-cut expressions by the Supreme Court can erod an earlier summary disposition because summary actions by the Court do not carry the full precedential weight of a decision announced in a written opinion after consideration of briefs and oral argument." 

Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com

Beauvais, and similar recent decision by other courts, may give reason for many Miami homeowners with mortgage foreclosure situations to re-evaluate what is the best course of action to "save" their home from foreclosure.  For many, focus on "foreclosure defense" instead of mortgage modification are misplaced.  

Modified Mortgage Payment 
A HAMP and similar mortgage modifications are typically targeted to be about 31% of gross income. The 31% amount would include principal, interest, taxes, insurance, and association. 

That is, the monthly mortgage payment includes, aside from principal ("p") and interest ("i"),  county property taxes ("t") and the various types of property insurance ("i").  That is, the mortgage lender is not the source of a large portion of the monthly mortgage payment. 

Costs to Homeowner of Not Obtaining a Mortgage Modification
Furthermore, a homeowner should consider the economic costs of delay in the obtaining of a mortgage modification or the losing of their present home with well-intentioned, but unproductive foreclosure defense. A person should considered 

• what would be the interest rate on a modified mortgage - typically starting at around 2%
• what would be the interest rate on a new mortgage on a replacement home - if the person is even able to obtain one
• what is the amount of the property taxes on their present home - is the "assessed value" being capped at a low historical amount by Florida's constitution
• will the property taxes on a new home be much higher as the "assessed" value will be closer to the market value
• the costs of moving from the old house
• the closing costs of a new real estate purchase, mortgage broker, points, and taxes on a new mortgage instrument 
• accruing high costs of "forced place property insurance" until the mortgage modification is achieve - these may impact the amount of a modified mortgage payment and will increase the overall payoff due at the time of sale
• raising real estate values may increase the amount of the monthly modified mortgage payment 
• costs of renting vs. ownership, including its possible income tax savings

Jordan E. Bublick - Miami Bankruptcy Lawyer - Kendall & Aventura Offices - (305) 891-4055 - www.bublicklaw.com

I meet too many smart clients who earn terrific income but their financial life is a mess.  What’s more, their cell phone bills are paid in full each month, the cable bill is paid, the dog groomer was paid and even the pizza delivery guy was paid a tip, but despite all their hard work and income somehow the mortgage did not get paid and a foreclosure sale is pending.  When you ask why they are 10 payments behind on the mortgage even though they earned enough to pay it in full each month they answer that some emergency or unplanned expense came up—medical bills, car repairs, etc.—and then it began to snowball from there. 
When I interview most married clients they describe their financial payment system like this.  I love you. You love me.  Since we love each other so much let’s get married, have kids, and open a joint bank account.  Let’s work hard and deposit all our money into that one account.  Here is your debit card and here is mine. All month long we use the debit cards and then at the end of the month let’s meet up at the kitchen table and pay the bills.  Of course, the problem is that this was a hard month.  Well, the truck broke down and little Tommy needed school pictures and we had that terrible vet bill when the dog decided it could fly.  There just isn’t enough money left to pay the mortgage.   Yes, what we have here is a failure to prioritize.
The fact is, some bills are more important than others.  Paying the mortgage is more important than buying pizza on Friday night.  We all know what these priorities are:  Mortgage, Utilities, Insurance, Car Payment, House Taxes, Cell Phones, etc.  There are just some bills that if you don’t pay them they kick you in the behind. 
Here is the trick that can save your finances and perhaps your marriage as well.  Add up all the priority expenses you must pay each month and then figure out how much they come to each paycheck.  For example, if you pay $1,000 for rent, $300 for utilities, $400 for a car payment, $100 for auto insurance each month, then your monthly priority figure is $1,800.  If you are paid twice a month, then you need to set aside $900 per paycheck to pay the priority bills.
Now read this:  Do not mix your priority money with the rest of your money.  Take the first $900 of earnings on payday and deposit it into a separate bank account.  Most employers will directly deposit your paycheck into several accounts.  Open a new bank account and tell your payroll department to deposit the first $900 of each paycheck into the new account.  You don’t want debit cards for this account.  In fact, it is best if you don’t even request paper checks.  Learn how to use the free on-line BillPay service offered at most banks.  When the next paycheck arrives later in the month you should have all $1,800 required to pay the priority bills.  Set up the BillPay service to automatically pay your priority bills on time each month.  See how simple this is?  Money automatically is deposited each payday and is automatically mailed to creditors each month.  No more late fees.  No more defaults. 
The basic idea here is to build a wall between your money—divide and conquer—by keeping the priority bill money in a separate account from the money you use to pay daily expenses.  Some folks call this “Envelope Budgeting” because they actually put cash into separate envelopes each payday to pay their important bills.  It’s the same concept.  Divide the money. Do not comingle the funds used to pay your most important bills with money used for day to day living. 

The basic idea here is to build a wall between your money—divide and conquer—by keeping the priority bill money in a separate account from the money you use to pay daily expenses

Writing a budget on paper is not budgeting.  Unless the budget takes action it is no more a budget than an architect’s blueprint is a home.  To budget means to divide, and not just on paper but in a physical way.  You need a payday action plan.  Where does the most important money you earn go on payday?  Into a joint account commingled with other less important money or into a separate purpose-driven account?  By utilizing separate bank accounts funded directly on payday with specific spending purposes you can take control of your money and ensure that your financial goals are achieved.
Image courtesy of Flickr and Simon Cunningham

I meet too many smart clients who earn terrific income but their financial life is a mess.  What’s more, their cell phone bills are paid in full each month, the cable bill is paid, the dog groomer was paid and even the pizza delivery guy was paid a tip, but despite all their hard work and income somehow the mortgage did not get paid and a foreclosure sale is pending.  When you ask why they are 10 payments behind on the mortgage even though they earned enough to pay it in full each month they answer that some emergency or unplanned expense came up—medical bills, car repairs, etc.—and then it began to snowball from there. 
When I interview most married clients they describe their financial payment system like this.  I love you. You love me.  Since we love each other so much let’s get married, have kids, and open a joint bank account.  Let’s work hard and deposit all our money into that one account.  Here is your debit card and here is mine. All month long we use the debit cards and then at the end of the month let’s meet up at the kitchen table and pay the bills.  Of course, the problem is that this was a hard month.  Well, the truck broke down and little Tommy needed school pictures and we had that terrible vet bill when the dog decided it could fly.  There just isn’t enough money left to pay the mortgage.   Yes, what we have here is a failure to prioritize.
The fact is, some bills are more important than others.  Paying the mortgage is more important than buying pizza on Friday night.  We all know what these priorities are:  Mortgage, Utilities, Insurance, Car Payment, House Taxes, Cell Phones, etc.  There are just some bills that if you don’t pay them they kick you in the behind. 
Here is the trick that can save your finances and perhaps your marriage as well.  Add up all the priority expenses you must pay each month and then figure out how much they come to each paycheck.  For example, if you pay $1,000 for rent, $300 for utilities, $400 for a car payment, $100 for auto insurance each month, then your monthly priority figure is $1,800.  If you are paid twice a month, then you need to set aside $900 per paycheck to pay the priority bills.
Now read this:  Do not mix your priority money with the rest of your money.  Take the first $900 of earnings on payday and deposit it into a separate bank account.  Most employers will directly deposit your paycheck into several accounts.  Open a new bank account and tell your payroll department to deposit the first $900 of each paycheck into the new account.  You don’t want debit cards for this account.  In fact, it is best if you don’t even request paper checks.  Learn how to use the free on-line BillPay service offered at most banks.  When the next paycheck arrives later in the month you should have all $1,800 required to pay the priority bills.  Set up the BillPay service to automatically pay your priority bills on time each month.  See how simple this is?  Money automatically is deposited each payday and is automatically mailed to creditors each month.  No more late fees.  No more defaults. 
The basic idea here is to build a wall between your money—divide and conquer—by keeping the priority bill money in a separate account from the money you use to pay daily expenses.  Some folks call this “Envelope Budgeting” because they actually put cash into separate envelopes each payday to pay their important bills.  It’s the same concept.  Divide the money. Do not comingle the funds used to pay your most important bills with money used for day to day living. 

The basic idea here is to build a wall between your money—divide and conquer—by keeping the priority bill money in a separate account from the money you use to pay daily expenses

Writing a budget on paper is not budgeting.  Unless the budget takes action it is no more a budget than an architect’s blueprint is a home.  To budget means to divide, and not just on paper but in a physical way.  You need a payday action plan.  Where does the most important money you earn go on payday?  Into a joint account commingled with other less important money or into a separate purpose-driven account?  By utilizing separate bank accounts funded directly on payday with specific spending purposes you can take control of your money and ensure that your financial goals are achieved.
Image courtesy of Flickr and Simon Cunningham