Wednesday, March 30, 2005

Supreme Court Modifies the Second Circuit's Rule Concerning the Staying of Mixed Habeas Petitions

Rhines v. Weber, No. 03-9046, 544 U.S. ___ (March 30, 2005) (Op. by O'Connor): In this case, the Supreme Court addressed the question of the proper procedure a district court should employ when faced with a mixed habeas petition -- i.e., one containing both exhausted claims and unexhausted claims -- given 28 U.S.C. § 2254(b)(1)(A)'s command that no writ can "be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." The Court reversed the decision below from the Eighth Circuit, which ruled that "a district court has no authority to hold a habeas petition containing unexhausted claims in abeyance absent truly exceptional circumstances." Under the Eighth Circuit rule, a district court must generally dismiss mixed petitions, even in cases where AEDPA's one-year clock has already run, see 28 U.S.C. § 2244(d)(2), and thus where dismissal essentially forecloses future federal habeas review of the petitioner's claims.

The Supreme Court did not, however, adopt the Second Circuit's contrary position in such situations. In Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), Judge Newman ruled that when a district court is confronted with a mixed petition, and where an outright dismissal of the petition "[w]ould jeopardize the timeliness of a collateral attack" due to AEDPA's one-year statute of limitations, id. at 380, a stay of the habeas proceedings (holding the exhausted claims in abeyance while the petitioner returned to state court to exhaust the unexhausted claims) "will be the only appropriate course." Id.

Instead, Justice O'Connor ruled for a unanimous Court that "stay and abeyance should be available only in limited circumstances." Op. at 7. The Court explained, first, that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. (emphasis added). Second, even where there is good cause for the failure to exhaust, a district court should not employ the stay-and-abeyance procedure "when [the petitioner's] unexhausted claims are plainly meritless." Id.

Finally, the Court adopted Zarvela's requirement that even when a district court stays a mixed petition to allow the petitioner to exhaust the unexhausted claims in state court, it "should place reasonable time limits on a petitioner's trip to state court and back." Op. at 7. Indeed, the Court specifically cited Zarvela's requirement that when a habeas petition has been stayed, the petitioner must file a state petition (to exhaust the unexhausted claims) "within a brief interval, normally 30 days, after the stay is entered and [must] return[] to federal court wihin a similarly brief interval, normally 30 days after state court exhaustion is completed." Id. (citing Zarvela, 254 F.3d at 381.

As a last point, the Court emphasized that even where a stay is not appropriate, "the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims . . . ." Op. at 8.

Justice Stevens and Justice Souter each wrote a short, one-paragraph concurrence. The gist of each is similar in downplaying the opinion's "good cause" requirement. As Justice Stevens wrote, "While I join the Court's opinion, I do so on the understanding that its reference to 'good cause' for failing to exhaust state remedies more promptly . . . is not intended to impose the sort of strict and inflexible requirement that would 'trap the unwary pro se prisoner."

Comment: Rhines is obviously not a great decision for those who practice in the Second Circuit. Of course, much will depend on how courts will construe the "good cause" requirement created by this case, something not at all fleshed out by Justice O'Connor. But regardless of how much teeth courts put into this requirement, the plain fact is that, often, habeas petitioners have no excuse whatsoever for failing to exhaust certain claims -- other than the fact that they are not lawyers and were acting pro se when they filed their state petitions or motions. Simply being pro se is of course insufficient to satisfy the "good cause" requirement, so it is quite possible that Rhines will result in many more dismissals of mixed petitions. Where the Rhines test cannot be met, the petitioner should obviously opt for the choice of deleting the unexhausted claims and proceed on the exhausted ones.

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Because of the theoretical advantage that debt consolidation offers a consumer that has high interest debt balances, companies can take advantage of that benefit of refinancing to charge very high fees in the debt consolidation loan. Sometimes these fees are near the state maximum for mortgage fees. In addition, some unscrupulous companies will knowingly wait until a client has backed themselves into a corner and must refinance in order to consolidate and pay off bills that they are behind on the payments. If the client does not refinance they may lose their house, so they are willing to pay any allowable fee to complete the debt consolidation. In some cases the situation is that the client does not have enough time to shop for another lender with lower fees and may not even be fully aware of them. This practice is known as predatory lending Certainly many, if not most, debt consolidation transactions do not involve predatory lending.

In the United States, federal student loans are consolidated somewhat differently, as federal student loans are guaranteed by the U.S. government. In a federal student loan consolidation, existing loans are purchased and closed by a loan consolidation company or by the Department of Education (depending on what type of federal student loan the borrower holds). Interest rates for the consolidation are based on that year's student loan rate, which is in turn based on the 91-day Treasury bill rate at the last auction in May of each calendar year.

Student loan rates can fluctuate from the current low of 4.70% to a maximum of 8.25% for federal Stafford loans 9% for PLUS loans. The current consolidation program allows students to consolidate once with a private lender, and reconsolidate again only with the Department of Education. Upon consolidation, a fixed interest rate is set based on the then-current interest rate. Reconsolidating does not change that rate. If the student combines loans of different types and rates into one new consolidation loan, a weighted average calculation will establish the appropriate rate based on the then-current interest rates of the different loans being consolidated together.

Federal student loan consolidation is often referred to as refinancing, which is incorrect because the loan rates are not changed, merely locked in. Unlike private sector debt consolidation, student loan consolidation does not incur any fees for the borrower; private companies make money on student loan consolidation by reaping subsidies from the federal government.

Student loan consolidation can be beneficial to students' credit rating, but it's important to note that not all federal student loan consolidation companies report their loans to all credit bureaus; SLM Corporation (formerly Sallie Mae) does not report to Experian or Transunion which means that students will have differing credit scores at Equifax Transunion, and Experian.

Credit as a financial term, used in such terms as credit card refers to the granting of a loan and the creation of debt. Any movement of financial capital is normally quite dependent on credit, which in turn is dependent on the reputation or creditworthiness of the entity which takes responsibility for the funds.

A similar usage is in commercial trade where credit is used to refer to the approval for delayed payments for goods purchased. Sometimes if a person has financial instability or difficulty, credit is not granted. Companies frequently offer credit to their customers as part of the terms of a purchase agreement. Organizations that offer credit to their customers frequently employ a credit manager

Credit is denominated by a unit of account Unlike money (by a strict definition), credit itself cannot act as a unit of account. However, many forms of credit can readily act as a medium of exchange As such, various forms of credit are frequently referred to as money and are included in estimates of the money supply

Credit is also traded in the market The purest form is the "Credit Default Swap" market, which is essentially a traded market in credit insurance. A credit default swap represents the price at which two counterparties will exchange this risk — the protection "seller" takes the risk of default of the credit in return for a payment, commonly denoted in basis points (one basis point being 1/100 of a percent) of the notional amount to be referenced, while the protection "buyer" pays this premium and in the case of default of the underlying (a loan, bond or other receivable), delivers this receivable to the protection seller and receives from the seller the par amount ( i.e., is made whole).

Credit Education is the practice of providing consumers with information analyzing their credit behavior. Credit education is usually practiced by trained professionals knowledgeable in the analytics of the credit score and how consumer credit behavior effects both positive and negative credit eligibility. Credit education is usually assisted by sophisticated credit scoring models that mathematically assists the consumer, or counselor, in determining a credit improvement outcome.

Credit Education has become an increasingly practiced discipline due to sweeping increases in the use of the credit score and its affect on the prices consumers pay for loans, insurance, housing and utilities. It is also the major factor in loan eligibility.

Not to be confused with credit counseling credit education does not focus on debt counseling, nor involves the practice of collecting debt from consumers. Credit counseling and credit repair have consistently received negative publicity for its fee and management practices.

The largest suppliers for credit education data are Fair Isaac Corporation, CreditXpert and the three credit bureaus ( Experian, TransUnion and Equifax who deliver credit reports and credit scores. Among the largest providers of credit education services is Community Empower who, through the use of its own scoring models and national network of credit education counselors, provides consumers hands-on guidance using highly-trained local professionals.

Credit education has also received attention as a new discipline at the Community College level where new courses on the subject are being taught. Usually aligned with Mortgage Finance programs that teach college undergraduates principles of lending and underwriting credit education and credit recovery programs are giving students more extensive backgrounds in credit early in their careers. Among the early college level adoptors of credit education is the Los Angeles Community College District and Los Angeles Trade Technical College.

FICO is an acronym for Fair Isaac Corporation (traded publicly under the symbol FIC) and refers to the best-known credit score model in the United States, which is calculated using mathematical formulae developed by this company. The FICO score is primarily used in the consumer banking and credit industry. Banks and other institutions that use scores as a factor in their lending decisions may deny credit, charge higher interest rates or require more extensive income and asset verification if the applicants credit score is low.

FICO scores are designed to indicate the likelihood of a borrower being delinquent within the next 24 months. No public information is available to determine what the scores mean in terms of statistics. A separate score, BNI, is used to indicate likelihood of bankruptcy.

The three major credit reporting agencies (also often, but inaccurately referred to as credit bureaus) in the United States, Equifax, Experianand TransUnion calculate their own credit scores, which go by different trademark names as well as many different versions of the score (often differing because of what they are meant to predict and when they were written): Beacon, Beacon 96, and Pinnacle are all available only from Equifax; Empirica, Empirica Auto 95, Precision Score, and Precision 03 at TransUnion; and Fair Isaac Risk Score at Experian. These versions, while all developed for the agencies by Fair Isaac, differ and are periodically updated to reflect current consumer repayment behavior. The NextGen Scores are the most recent scores, but creditors vary in which version they prefer to use.

The scores use a multiple scorecard design. Each version uses 10 or more individual scorecards, and an individual is typically compared with similar others. (For example, a borrower with two 30-day late payments will be scored against a population with some minor delinquencies.) An individual is then graded according to what variables seem to indicate a repayment risk in that group. This feature may cause a borrower with delinquencies to score in the same range as a borrower without delinquencies.

Nearly all large banks also build and use their own proprietary statistical models for credit scoring purposes, often in conjunction with the FICO score or other outside scores.

The statistical models that generate credit scores are subject to federal regulations. The Federal Reserve Board's Regulation B, which implements the Equal Credit Opportunity Act, expressly prohibits a credit scoring model from considering any prohibited basis such as race, color, religion, national origin, sex, or marital status. Regulation B also stipulates that credit scoring models must be empirically derived and statistically sound. Furthermore, if an adverse action is taken as a result of the credit score ( e.g. an individual's application for credit is denied) then specific reasons for the denial must be provided to the individual. A statement that the individual "failed to score high enough" is insufficient; the reasons must be specific.

There exist several generally accepted algorithms for extracting the primary contributing factors to a low credit score. One or more of these algorithms is typically used to supply a list of reasons when a loan applicant has been denied credit, in order to satisfy the Regulation B requirement that specific reasons are disclosed. Some consumers feel these adverse action reasons are somewhat disingenuous, as the only determining factor for credit denials is a numeric score — the "reasons" are summed up only for the consumer.

Each of the credit reporting agencies has developed its own version of the credit score intended to compete with Fair Isaac's score. Although not as widely used, these scores (for example Trans Union's "TransRisk" score or Experian's "ScoreX" and "PLUS" scores) are less expensive than the FICO score. These scores are often derisively referred to by consumers and lenders as "FAKO" scores, for they do not use official Fair Isaac methodologies. The cost savings of a non-FICO score are tempting to some banks and credit card companies, who need an accurate risk assessment on millions of accounts every year. For ease of use, these scores tend to be mathematically scaled so that they fall in the same general range as the FICO score. Fair Isaac offers scoring models for the U.S ., Canada, and South Africa. It also offers a "Global FICO" for many other countries.

Credit scores are designed to measure the risk of default by taking into account various factors in a person's financial history. Although the exact formulae for calculating credit scores are closely guarded secrets, Fair Isaac has disclosed the following components and the approximate weighted contribution of each:

35% punctuality of payment in the past (only includes payments later than 30 days past due)
30% capacity used: the ratio of current revolving debt (credit card balances, etc.) to total available revolving credit (credit limits)
15% length of credit history
10% types of credit used (installment revolving consumer finance
10% recent search for credit and/or amount of credit obtained recently
The above percentages provide very limited guidance in understanding a credit score. For example, the 10% of the score allocated to "types of credit used" is undefined, leaving consumers unaware what type of credit mix to pursue. "Length of credit history" is also a murky concept; it consists of multiple factors - two being the oldest account open and the average length of time an account has been open. Although only 35% is attributed to punctuality, if a consumer is substantially late on numerous accounts, his score will fall far more than 35%. Bankruptcies, foreclosures, and judgments affect scores substantially, but are not included in the simplistic pie chart provided by Fair Isaac.

Further, Fair Isaac does not use the same "scorecard" for everyone. The scorecards are segmented so that there are over 100 different actual scoring models that are applied to different individuals based on different ranges of input values (some scorecard segmentations include: age, depth of credit history, etc.) The implications of this segmentation are that while the approximate weighted contribution above may be an average across all scorecards, individuals will receive different scores or weightings based on the scorecard segmentation that they fall into. Some consumers have noticed their scores decreasing by small amounts for no apparent reason.

Current income and employment history do not influence the FICO score, but they are weighed when applying for credit. For instance, an unemployed individual with no other sources of income will not usually be approved for a home mortgage, regardless of his or her FICO score.

There are other special factors which can weigh on the FICO score.

Any monies owed because of a court judgment, tax lien, or similar carry an additional negative penalty, especially when recent.
Having above a certain number of consumer finance company credit accounts also carries a negative weight (critics say that this causes a vicious cycle, locking people into continuing to use consumer finance companies).
The number of recent credit checks also can weigh down the score, although the credit agencies claim to allow for credit checks made within a certain window of time to not aggregate, so as to allow the consumer to shop around for rates.

A FICO score generally ranges from 300 to 850. It exhibits a left-skewed distribution with a US median around 725. 660 is generally regarded as potentially subprime and represents an important break point for credit worthiness. The performance of the scores is monitored and the scores are periodically aligned so that a credit grantor normally does not need to be concerned about which score card was employed.

Each individual actually has three credit scores for any given scoring model because the three credit agencies hold their own, independent databases. These databases are independent of each other and may contain entirely different data. Many lenders will check an applicant's score from each bureau and use the median score to determine the applicant's credit worthiness.

A new Vantage score has been offered by all three credit bureaus to creditors since spring 2006. It will soon be available to debtors. Its range is from 501 to 990. It is graded A (901-990), B (801-900), C (701-800), D (601-700), and F (501-600). It remains to be seen whether the Vantage Score will replace the FICO score or even be accepted by many creditors.

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