Is the Uniform Commercial Code (UCC) Still Relevant?

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1 Is the Uniform Commercial Code (UCC) Still Relevant? Promissory Notes, Mortgages, Payment Systems, Foreclosures, and other Muddled and Edgy Issues Center for Business Law, Spring 2014 Conference Thursday, February 27, 2014 William Breetz Bill has been a Commissioner of the Uniform Law Commission (ULC) from Connecticut since 1991 and chairs the drafting committee for the proposed Uniform Home Foreclosure Procedures Act. Bill s first encounter with the ULC was in 1976, when he was appointed as a Reporter for the Uniform Condominium Act. Since then, he has been the sole Reporter for the Uniform Planned Community Act (1980), the Uniform Common Interest Ownership Act (1982) and the two amendments to UCIOA in 1992 and Bill also chaired the Drafting Committee for the Uniform Environmental Covenants Act - which was promulgated in 2003 and has been adopted by 26 states - and has served in various other capacities with the ULC. Bill is presently Of Counsel to the Connecticut Urban Legal Initiative, Inc., a non-profit law firm affiliated with the University Of Connecticut School Of Law; before his retirement in 2011, he founded and was President of that law firm and served on the Law School faculty. Bill is a member of the American College of Real Estate Lawyers (ACREL); he has been a member of the Connecticut Law Revision Commission since 1977 and was its Chair from Bill graduated from Dartmouth College and the University of Virginia Law School; he lives with his wife, Sheryl, in Hartford. Richard B. Child has been a member of the New England Law faculty since Professor Child has taught Bankruptcy, Business Organizations, Law and Ethics of Lawyering, UCC: Negotiable Instruments, UCC: Sales, UCC: Secured Transactions and many other courses. With his Criminal Law students, he co-founded New England Journal of Criminal and Civil Confinement, which is now in its fortieth year of continuous publication. Professor Child received his A.B. Cum Laude from Harvard College, and his J.D. from Harvard Law School, where he served as an Editor of the Harvard Journal on Legislation. Before entering academia, he served as a Trial Attorney with the U.S. Food and Drug Administration, and practiced law with two Boston law firms.

2 Professor Cohen teaches courses in domestic and international commercial law, contracts, and conflict of law. For two decades, Professor Cohen has been a key participant in major domestic and international law reform projects with respect to commercial transactions. He was the reporter for Revised Article 1 of the Uniform Commercial Code and for the American Law Institute s Restatement of the Law of Suretyship and Guaranty; in honor of his accomplishments as reporter for the Restatement, he was named as the Institute s R. Ammi Cutter Reporter. He has also served on the Drafting Committees for revisions to Articles 2, 2A, and 9 of the Uniform Commercial Code. Internationally, he has served on working groups of the United Nations Commission on International Trade Law (UNCITRAL), the International Institute for the Unification of Private Law (UNIDROIT), and the Hague Conference on Private International Law. Professor Cohen currently serves as the director of research of the Permanent Editorial Board for the Uniform Commercial Code. He is a fellow of the American College of Commercial Finance Lawyers and a member of the International Academy of Commercial and Consumer Law. Professor Cohen received his S.B. from the Massachusetts Institute of Technology and his J.D. from the New York University School of Law. Attorney Cox is retired from the private practice of law. A substantial portion of Attorney Cox s practice included the representation of lenders in residential and commercial loan litigation matters, and clients included major regional and national lenders as well as the FDIC. For the past five years he has played a substantial role in the Maine Attorneys Saving Homes (MASH) program of the Maine Volunteer Lawyer Project as a volunteer lawyer screening mortgage foreclosure cases, handling referrals to volunteer lawyers on the MASH panel, co-counseling on select cases, and acting as a consultant to Maine foreclosure defense lawyers. He was instrumental in the startup of Maine s foreclosure mediation program, providing training and consultation to lawyers representing homeowners in foreclosure mediation. He has also acted as a consultant to Pine Tree Legal Assistance in managing the litigation strategies of its Foreclosure Prevention Program. Attorney Cox is credited with exposing the foreclosure robo-signing scandal with his deposition of GMAC Mortgage s limited signing officer, Jeffrey Stephan, in 2010, and for his subsequent and successful efforts to force GMAC to halt its improper foreclosure practices. In addition, he has participated in nine appeals of key Maine foreclosure issues to the Maine Supreme Court resulting in decisions of national significance over the past several years. He has been an active observer to the Uniform Law Commission Real Estate Procedures Act Drafting Committee for the past two years. He is the recipient of the 2011 Howard Dana Award presented by the Maine Bar Foundation for outstanding services to pro bono clients, and an honorary recipient of a 2011 Empire State Counsel Award from the State Bar of New York, and a winner of the 2012 Purpose Prize He is a graduate of Colby College and Boston University School of Law. Attorney Cox has recently assumed a part time, of counsel role with the National Consumer Law Center; during the remainder of his time he remains active on consumer-related cases in Maine.

3 Professor Kathleen C. Engel teaches at Suffolk Law School in Boston. She is a national authority on mortgage finance and regulation, subprime and predatory lending, consumer credit, and housing discrimination. Her many publications include a 2011 book published by Oxford University Press, The Subprime Virus: Reckless Credit, Regulatory Failure and Next Steps (with Prof. Pat McCoy) and articles in Harvard Business Law Review, the Harvard Journal of Law and Public Policy, Texas Law Review, Washington University Law Quarterly, Fordham Law Review, The Journal of Economics and Business, and Housing Policy Debate. Professor Engel presents her award-winning research in academic, banking, and policy forums throughout the country and around the world. Her analysis of financial services markets and the laws that regulate them regularly catches the attention of the press; The New York Times, Business Week, The Economist, ABA Journal, ABC News, and The Wall Street Journal have all cited her work. Prof. Engel has advised federal and state agencies on various matters related to financing of loans and served for three years on the Consumer Advisory Council of the Federal Reserve Board. Professor Engel is an honors graduate from Smith College and the University of Texas School of Law. Following graduation from law school, Professor Engel clerked for Judge Homer Thornberry of the Fifth Circuit Court of Appeals in Austin, Texas. She then practiced law at Burnham & Hines in Boston, where she primarily represented plaintiffs in civil rights, and housing and employment discrimination cases. Prior to joining the faculty at Suffolk University, Professor Engel held the Leon M. and Gloria Plevin Professorship at Cleveland-Marshall College of Law. Professor Engel has taught courses on consumer credit, the financial crisis, torts, civil procedure, employment law, and employment discrimination. Ingrid Michelsen Hillinger, Professor of Law, Boston College Law School. Professor Hillinger teaches a variety of courses in commercial law and bankruptcy, including Business Bankruptcy, Consumer Bankruptcy, and Secured Transactions. She is a co-editor of Chapter 11 Theory & Practice: A Guide to Reorganization, a multi-volume bankruptcy treatise that is continually updated to reflect new developments in this dynamic area of the law. She is also co-author of an Article 9 case book, Commercial Transactions: Secured Financing: Cases, Materials & Problems, which adopts a problem-solving approach to teaching transactional law. Professor Hillinger received her A.B. from Barnard College and her J.D. from the College of William & Mary. Professor Hillinger was featured in the 2013 book entitled, What the Best Law Teachers Do (Harvard University Press). Among many positive attributes, her sincere care for her students was stressed. She was quoted as saying, I think it comes down to caring. I mean they know that they can come here and I will care. I ll try to help. I ll listen. Laura Johnson Ms. Johnson is Senior Counsel in the Office of Regulations at the Consumer Financial Protection Bureau, where she focuses on mortgage servicing regulations promulgated under the Truth in Lending Act, Real Estate Settlement Procedures Act, and Dodd-Frank Wall Street Reform and Consumer Protection Act. Ms. Johnson came to the Bureau from the Regulatory Services group at U.S. Bancorp, where she handled consumer-oriented regulatory compliance issues. Prior to that, she was a staff attorney and later became Chief of Staff in the Division of Financial Practices at the Federal Trade Commission. She previously practiced law with the firm of K&L Gates in Washington, D.C., where she focused on financial services regulatory counseling. She is a graduate of Centre College in Kentucky and American University Washington College of Law in Washington, D.C.

4 John Rao is an attorney with the National Consumer Law Center, Inc. Mr. Rao focuses on consumer credit, mortgage servicing, and bankruptcy issues and has served as a panelist and instructor at numerous bankruptcy and consumer law trainings and conferences. He has served as an expert witness in court cases and has testified in Congress on consumer matters. Mr. Rao is a contributing author and editor of NCLC's Consumer Bankruptcy Law and Practice; and a co-author of NCLC s Foreclosures and Bankruptcy Basics. He is also a contributing author to Collier on Bankruptcy and the Collier Bankruptcy Practice Guide. Mr. Rao served as a member of the federal Judicial Conference Advisory Committee on Bankruptcy Rules from 2006 to 2012, appointed by Chief Justice John Roberts. He is a conferee of the National Bankruptcy Conference, fellow of the American College of Bankruptcy, vice-president of the National Association of Consumer Bankruptcy Attorneys, member of the editorial board of Collier on Bankruptcy, and former board member for the American Bankruptcy Institute. James Steven Rogers, Professor of Law, teaches and writes in the areas of contracts, modern commercial law, particularly payment systems, the law of restitution, and the history of Anglo- American commercial law. Professor Rogers has played a major role in the development of modern commercial law. He served as Reporter (principal drafter) for the Drafting Committee to Revise UCC Article 8, which established a new legal framework for the modern system of electronic, book-entry securities holdings through central depositories and other intermediaries. He is widely published in law reviews on subjects of modern commercial law and bankruptcy, particularly in the fields of investment securities, negotiable instruments, and the history of Anglo- American commercial law. His 1995 book The Early History of the Law of Bills and Notes was published by Cambridge University Press. Professor Rogers has recently completed a book, The End of Negotiable Instruments: Bringing Payment Systems Law Out of the Past, to be published by Oxford University Press in 2011, on the modern law of payment systems and the role of history in the development of that law. Unlike most discussions of reform of payment systems law which assume that the existing law works well for traditional paper-based systems Rogers book argues that the law of checks and notes, as set out in Articles 3 and 4 of the Uniform Commercial Code, is itself anachronistic and all but incoherent. Prior joining the Boston College Law School faculty, Rogers practiced with the firm of Sullivan & Worcester in Boston, Massachusetts and clerked for Judge Bailey Aldrich of the United States Court of Appeals for the First Circuit. He received a J.D. magna cum laude from Harvard Law School in 1976, where he served on the Harvard Law Review and was awarded the Fay Diploma for graduating first in his class in 9 cumulative G.P.A. He received his A.B. summa cum laude from the University of Pennsylvania, 1973, where he studied philosophy and history.

5 Jon K. Skarin serves as Senior Vice President of Legislative & Regulatory Policy for the Massachusetts Bankers Association (MBA), which represents 185 commercial, savings and cooperative banks and savings and loan associations throughout Massachusetts and New England. He is responsible for all federal legislative and regulatory issues as well as mortgage lending and housing policy at the state and federal levels. Since joining the MBA in 2005, Mr. Skarin has worked on a number of key banking issues in Washington, DC and on Beacon Hill. These include comprehensive mortgage lending legislation, state and federal foreclosure prevention initiatives, data security standards and the TJX data breach case, regulatory relief initiatives, deposit insurance reform, overdraft protection regulations, Wal-Mart s ILC application and the fair lending task force. Beginning in 2008, Mr. Skarin worked on numerous issues related to the financial crisis, including the conservatorship of Fannie Mae and Freddie Mac, the Troubled Asset Relief Program and the federal government s regulatory reform initiatives that culminated in the enactment of the Dodd-Frank Act in In particular, he worked on provisions related to mutuality and preservation of the dual banking system, the Durbin interchange amendment, and capital provisions. Mr. Skarin is also a frequent speaker on legislative and regulatory matters related to banking and financial services. Prior to joining the Association, Mr. Skarin served as Legislative Director in the Office of Congressman Michael E. Capuano from In this capacity, he was responsible for all legislative activities in the Congressman s office. In addition, he staffed the House Financial Services Committee and had primary responsibility for economic development, telecommunications and other technology issues as well as ethics and campaign finance matters. He also served on the staff of Senator Edward M. Kennedy from working on economic and technology issues as well as economic development projects throughout the Commonwealth.