Kirchberg v. Feenstra
This was the case that gave me my first idea for this book. It was eighteen years ago, when I was in law school. You can read it yourselves: 450 U.S. 455 (1981). That means it’s in the 450th volume of the “United States Reports” at page 455, and was handed down in 1981. Just type “450 U.S. 455” into Google and you can read it yourselves. It’s a heartbreaking story.
In Louisiana, in the early 1970s, a woman named Joan Feenstra owned a house as joint community property with her husband. But according to state law her husband was the “head and master” of it because they were married, and he was the man. Being “head and master” meant that he was allowed to “encumber” the property without the consent or knowledge of his wife. “Encumber” means “use as collateral for a loan.” And collateral is the thing the lender gets to take if you don’t pay your loan back.
In 1974, Joan Feenstra accused her husband Harold of molesting their daughter. The husband found a local defense attorney, Karl Kirchberg, and asked him to represent him. Kirchberg said sure, it’ll be $3000. Harold didn’t have the money, but Kirchberg took a note, with a lien on the Feenstra house as collateral. Neither one of them told Joan Feenstra about it. A few months later, Joan dropped her complaint against Harold, and the criminal charges were dismissed. Harold left the state and disappeared, without paying Kirchberg’s bill. Kirchberg then called up Joan: pay me three grand, or I’m taking your house.
Joan said: WTF, I didn’t agree to any lien! So Kirchberg ran to the courthouse first, got a foreclosure order, and then went to federal court and asked for a declaratory judgment that his lien was valid and he could evict her. (He went to federal court because there was a new federal law called the Truth In Lending Act, that required, among other things, that you have give notice of a mortgage to whoever’s going to be obligated on it. (That’s 15 U.S.C § 1631(a)). Kirchberg won: the District judge wrote that Joan’s position was an attack on “the bedrock of Louisiana’s community property system.” Joan appealed, and the Fifth Circuit Court of Appeals (which covers Texas, Louisiana, and Mississippi) agreed with her that the “head and master” law violated the 14th Amendment because it explicitly discriminated on the basis of sex.
Meanwhile, while the appeal was pending, the Louisiana legislature decided to get rid of the “head and master” rule. That created an opening for the Court of Appeals to throw a big caveat into its ruling: that whole “unconstitutional discrimination” holding? It applies “only prospectively,” the Court said. That’s because retroactive application (that is, holding all prior foreclosures on nonconsensual head-and-master mortgages to be invalid) “would create a substantial hardship with respect to property rights and obligations within the State of Louisiana.”
No doubt—but is that a good constitutional reason? I don’t think so. What the court meant was, as Jennifer Curtis explains it to Heaton, that if the court created that sort of retroactive rule, then anyone in Louisiana could go back over property records and try to identify nonconsensual head-and-master mortgages and foreclosures, and try to attack land titles.
Could that happen? Maybe, but I don’t think the numbers would be that large. Most property transfers don’t occur through foreclosures on mortgages, and of those that did, what percentage would have turned out to be nonconsensual head-and-master mortgages? And how would you prove that the mortgage was nonconsensual (that the wife had not consented to it) if everyone was dead? Sure, people could try it, but as a practical matter, proving it in court would be difficult for old transfers. And as for newtransfers? Where the wife was alive and standing there ready to come into court and say hell, no, I didn’t agree to that? Where’s the injustice or unbearable social disruption in undoing those? But hypothetical though it was, the specter of retroactivity was too much for the Fifth Circuit. So the ruling was clear: Kirchner’s mortgage is invalid and he can’t evict Feenstra; no one can do any new nonconsensual head-and-master mortgages (which they couldn’t anyway because the Louisiana legislature abolished the head-and-master rule in 1979—alsoonly prospectively); but for anyone screwed by one of these already? Tough luck.
The lawyer, Karl Kirchberg, appealed to the Supreme Court, and the Supreme Court affirmed in a relatively brief opinion, notable mostly for how carefully it made sure that no one would get any crazy ideas about retroactivity. Oh, yes, you bet, that’s an Equal Protection violation, the Supreme Court said. But just like the Fifth Circuit, Court of Appeals, the Supreme Court also very carefully said “No retroactivity! Slow down here with all this retroactivity talk. We’re deciding a case about one single mortgage, the opinion, said, and that’s it.” So you got a constitutional decision that invalidated a statutory provision that had already been revoked by the legislature, and that, by its own terms, left everyone out there who had been harmed by it, shit out of luck. It was a ticket for one ride only, good for Joan Feenstra alone.
I wondered what it would have been like to be one of those other victims of the head-and-master rule, those other foreclosures that the Court left in place—being told that you had been wronged, but that the justice system was not going to stand up for you. How would that feel? I wrote in my notes that day that the case would make a great detective novel, if you told it from the perspective of the daughter, grown up, decades later, and out to take revenge on the lawyer who’d stolen—through means perfectly legal at the time—her home.
You can see how it’s hard not to read these court opinions and ask yourself what it would have been like to be the last one—the last victim of a nonconsensual head-and-master mortgage, hearing from the highest court in the land that what was done to you was totally wrong, immoral, and unconstitutional—but that you are shit out of luck, because we can’t have “hardship with respect to property rights.” Whose property rights are you worried about, you might ask. Presumably not mine—not the rights of person who fucking owned the property and had it mortgaged out from under her without permission.
So that was where this book began, with me reading that case in law school and wondering what it would have been like to be the last pre-Kirchberg head-and-master foreclosure victim.