Hat Tip to a viewer for this…

There are numerous complaints from conservatives, political and economic, as to the continuation of the federal GSEs and guarantee programs that dominate the market place. These matters now are coming to the forefront of Congressional consideration in the wake of passage of FINREG. The bifurcated approach was practically driven: one bite was too much to swallow, and the methods of solution are dramatically different.

FINREG has been described as a broad general outline for actions yet to be taken by as many as 16 federal agencies through rule-making processes. One of the most potentially significant pieces of this regulatory maze is supposed to be the Consumer Protection Agency tucked away in Federal Reserve. The rule-making process will be long and tortured. Agency lawyers basically offer up drafts for comment by the public. The “public” translates into “special interests”. These are generally consumer protection groups, or industry groups. Legions of industry specialized lawyer-lobbyists comment in technical terms that are incomprehensible to 99% of the lawyers in the country. The complexity tends to make it an insider ball game. Industry lawyer-lobbyists that worked the bills know where the choke points are—where the skeletons are hidden. Consumer advocates are few and far between—generally outgunned– certainly underpaid in comparison to the well-financed industry groups. Disinformation is industry’s stock in trade. Confusion is its currency. By the end of the process even the most well-meaning regulators are overwhelmed. What to believe? Who to believe? Much like the judiciary, the rule-makers receive comments from the industry side, and wait to hear the consumer rebuttals. If the rebuttals are poorly framed, the consumer comments are placed in the shadows. Even when the most aggressive rule-making process generates in a proposed rule, the rule-regulation may be held in suspense for decades. The existing agencies will be best able to engage in rule-making quickly. No doubt industry-originated drafts are already circulating in at least some instances.

For an entirely new rule-making authority, it may take a year or more simply to find the writers, employ them, then map a strategy and initiate the formal rule-making process. Years pass—other agencies with a head start fill the void. Conflicting rules are inevitable—the new agency may be consumed initially simply by attempting to stake out its jurisdiction by submitting comments to other agencies rule-making either directly in the public record or through back-room confrontations. What is the effect?

Generally, regulations emerging from a rule-making procedure are either or “interpretative” or “legislative” rules.  Interpretative regulations cite to various legislative provisions to clarify already reasonably definitive statutory mandates. The interpretative rules are promulgated by the agency charged with jurisdiction over the subject matter. The responsible agency writes rules to clarify broader statutory language, or conflicting statutory language. Sometimes this type of rule-making will parrot statutory language in order to provide the agency with a statement of internal policy upon which specific case determinations may be based. These latter agency decisions may be referred to as rulings but more correctly are described in administrative law as “orders”. The agency that promulgates interpretative regulations is bound by and must follow those regulations in its individual case decisions/orders. Interpretative regulations may be applied retroactively in the reasonable discretion of the agency. The retroactive application is often challenged by industry members subject to orders based on the regulation. Generally the industry will argue that the interpretation conflicted with underlying statutory intent as reflected by committee reports, floor speeches by sponsors etc. The industry may also argue that the orders pursuant to interpretative regulations may not issue for retroactive application in event that they conflict with long-standing administrative practice by that agency, and may even go so far as to state that the longstanding practice was implicitly incorporated by statute even if not specifically referenced. The theory is that the legislature is all-knowing, and adopts administrative rules implicitly when legislating in that area because the legislature would have specifically altered the treatment if it had so intended. These fears tend to make retroactive application difficult and contentious.

A legislative body may also authorize legislative rule-making. Generally, this will be done by language such as the “agency shall write rules to implement the purposes” of the general legislative mandate. Other times, there will be a more ambiguous direction: “this section shall be effective upon adoption of regulations”. In the latter case, the agency is basically vested with authority to decide for itself if and when it needs the rules to be created and applied. Agency discretion in the context of legislative rule-making is tantamount to a punt by Congress to the agency of matters too complex for legislation. These matters are supposedly within the special expertise of the agency and its word is law virtually equivalent to Congress’. Legislative regulations are drafted by persons appointed or supervised by the then-current Administration.

The regulatory path generally follows the following course: Congress passes a statute with Committee Reports. The agency determines the priority of required or permitted action. The Agency publishes intent to engage in rule-making in a described area. Sometimes this is described as “Advance Notice of proposed Rule-Making” or ANPRM. Sometimes it is simply notice of Proposed Rule-Making. In any event, the notice generally constitutes the beginning of agency hearings and/or opening of a comment period during which the agency is accessible to introduction of information, supposedly on the record.

The agency takes comments, hears testimony and investigates facts. It makes determinations of fact and law and writes regulations accordingly. The agency will typically publish “proposed rules” incorporating and addressing the comments made during the open hearing process. The notice of associated with published proposed rules should invite further comment—but on a more limited basis. The proposed rules may stand in place for years, while under attack from all sides. Eventually—as much as 20 years later—the proposed rules tested by time may become “final”.

What does this mean to the community of mortgagors—subjects of predatory loans and predatory collection practices?

To bring it home dramatically to relate to current discussions, the decision by Bankruptcy Court Judge Federman, in B.R. Western District Missouri Case # 10-20086; In re: Box stated at page 8, “The fact that the February 18, 2010 assignment [typical MERS as nominee of a bankrupt originator] was made after the bankruptcy case was filed does not render it per se invalid in that there is no rule prohibiting a creditor from assigning its claim postpetition.”   [Emphasis Added]. This has implications with respect to tracking custody, obtaining discovery, simply unraveling the transactions. It touches upon the after-acquired note issues, and generally invites frauders and their successors to carry on in good stead.

In another hot recent case, Cleveland vs Ameriquest et al, U.S.C.A. 6th Cir. No. 09-3608, the Court responded to Clevelands’ assertions of injury by underwriters that “began to direct lenders on the types of loans to meet the [underwriters’] securitization needs….and turned a blind eye even when the loans made no economic sense.” The District Court below had decided that the city had no claim that the defendants had abetted a nuisance, ”because subprime lending…is legal”. Interestingly, the facts pled suggested that the city asserted not just subprime, but predatory, subprime lending.  References to official sources bear out this connection between predatory and un-economic loans. Quoting from a well-done brief on the topic;

“Specifically, in the matter of Associates Home Equity Services v. Troup, 343 N.J.Super. 254, 267 (App. Div. 2001) the Appellate Division opined:

Predatory lending as been described as: a mismatch between the needs and capacity of the borrower… In essence, the loan does not fit the borrower, either because the borrower’s underlying needs for the loan are not being met or the terms of the loan are so disadvantageous to that particular borrower that there is little likelihood that the borrower has the capacity to repay the loan. (citations omitted).

This definition set forth by the Appellate Division is entirely consistent with Federal guidance on the topic.  Specifically, by “Advisory Letter” AL 2003-2 from the Office of the Comptroller of the Currency (“OCC”) to the Chief Executive Officers of All National Banks…, the OCC stated:

The terms “abusive lending” or “predatory lending” are most frequently defined by reference to a variety of lending practices.  Although it is generally necessary to consider the totality of the circumstances to assess whether a loan is predatory, a fundamental characteristic of predatory lending is the aggressive marketing of credit to prospective borrowers who simply cannot afford the credit on the terms being offered.  Typically, such credit is underwritten predominantly on the basis of the liquidation value of the collateral, without regard to the borrower’s ability to service and repay the loan according to its terms absent resort to that collateral. (emphasis provided).

Furthermore, Section 39 of the Federal Deposit Insurance Act generally requires Federally Chartered banks to establish “safety and soundness” standards for underwriting loans.  At 12 C.F.R. Part 30—Appendix A, “Interagency Guidelines Establishing Standards for Safety and Soundness,” the various federal agencies who regulate banking institutions were directed to consider a number of factors in implementing loan underwriting guidelines.

At subpart “C.” lenders are directed to “…establish and maintain loan documentation practices that:

***

2.  Identify the purpose of a loan and the source of repayment, and assess the ability of a borrower to repay the indebtedness in a timely manner.

At subpart “D” lending institutions are directed to “establish and maintain prudent credit underwriting practices that:

***

3.  Provide for consideration, prior to credit commitment, of the borrower’s overall financial condition and resources, the financial responsibility of any guarantor, the nature and value of any underlying collateral, and the borrower’s character and willingness to repay as agreed.’”

So the question now is whether the City of Cleveland failed to properly assert that subprime predatory lending was the subject of the complaint—or the Court has ruled that “predatory lending” is legal?

Much if not most of the mortgage crisis arose as a result of predatory lending on steroids. The reasons were varied: 1) to generate fees all around by refinancing loans and originating new ones, 2) to obtain products to sell to investors as a steep markup—more fees/profits and last but not to be over-looked in respect of predatory loans, the servicer is entitled to hold the proceeds of foreclosure until the tranche MBS are “called” bought out and the trust is closed—or investor payout as prescribed in the MBS themselves whichever comes 1^st. the main driver for “designed to fail” or predatory loans was the probability that the loans would default and the originator’s servicing rights’ foreclosure pool would grow as the foreclosures went on according to plan.

Now clearly the above 2 issues among many are critical to the continuation or termination  of the practices which have crushed the entire home-owning population of America, along with the economy, the future of our children, and destroyed the prospect of comfortable retirements for even the most diligent workers. The length and breadth of the damages from this obscene—but not illegal?—behavior is without parallel.

The last hope for correction in the future if not the past is the orderly and honest establishment of a keen regulatory system that directly addresses these and related issues. This will occur in Agency hearing rooms, in Comments and testimony before the agency staffs. A coordinated effort by advocates is necessary to identify cases of abuse, why they happened and what would prevent the same thing occurring again.

If I have misstated, understated or need to identify further stark examples of judicial distress due to confusion of the law, please post your suggestions. We need to identify corrections before the industry glosses over them. Do not play defense—play offense.

SEC Publishes Public Request for Comment to Inform Study of Obligations of Broker-Dealers and Investment Advisers

FOR IMMEDIATE RELEASE
2010-134

Washington, D.C., July 27, 2010 — The Securities and Exchange Commission today published a request for public comment to inform its study of the obligations and standards of care of broker-dealers and investment advisers providing personalized investment advice about securities to retail investors.

The study is required under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which President Obama signed into law on July 21, 2010.

As required by the Dodd-Frank Act, the SEC is requesting public input, comments, and data on issues related to the effectiveness of existing standards of care for brokers-dealers and investment advisers, and whether there are gaps, shortcomings, or overlaps in the current legal or regulatory standards.

“Broker-dealers and investment advisers provide critical financial services to millions of American investors,” said SEC Chairman Mary L. Schapiro. “A system that fairly and effectively regulates these market participants is essential to protecting investors. We look forward to receiving comments from the public on these important issues.”

The public comment period will remain open for 30 days, following publication of the comment request in the Federal Register.

# # #

FOR IMMEDIATE RELEASE
2010-135

Washington, D.C., July 27, 2010 — Securities and Exchange Commission Chairman Mary L. Schapiro today announced that the agency is making it easier for the public to provide comments as the agency sets out to make rules required under the Dodd-Frank Wall Street Reform and Consumer Protection Act.

Under a new process, the public will be able to comment before the agency even proposes its regulatory reform rules and amendments. Additionally, the SEC will provide greater public disclosure of meetings with SEC staff.

The new process goes well beyond what is legally required and will provide expanded opportunity for public comment and greater transparency and accountability. The SEC also expects to hold public hearings on selected topics.

“It has not even been a week since the President signed the regulatory reform legislation into law, but at the SEC we are already working to fully implement the dozens of studies and rulemakings required of our agency,” said Chairman Schapiro. “We recognize that the process of establishing regulations works best when all stakeholders are engaged and contribute their combined talents and experiences. We look forward to preliminary public comments in these areas.”

The SEC is generally required by law to establish a public comment period at the time it proposes rules or rule amendments. However, because of the significant rulemaking envisioned under the new regulatory reform law, the public will have an opportunity to voice its views before rules or amendments are even proposed as well as to see what others are saying to the agency about these issues.

To facilitate public comment, the SEC is providing a series of e-mail links on its website at http://www.sec.gov/spotlight/regreformcomments.shtml. These mailboxes are organized by topic and are listed starting with rules that have the shortest time frame for implementation. The public can provide preliminary comments on topics including OTC derivatives, hedge funds, corporate disclosure, credit rating agencies, and other areas in which the SEC will be engaged in rulemaking and studies over the next 18 months. Submitted comments will also be posted on the website for full transparency.

In addition to seeking public comment before rules and amendments are proposed, the SEC staff will follow newly-established best practices when holding meetings with interested parties in order to ensure full transparency to the public:

Staff will try to meet with any interested parties seeking a meeting. When the number of requests exceeds availability, the staff will seek out parties with varying viewpoints. Staff may have to limit the number of meetings with similarly situated parties and will limit multiple meetings with the same party.

Staff will reach out as necessary to solicit views from affected stakeholders who do not appear to be fully represented by the developing public record on a particular issue.

Staff will ask those who request meetings to provide, prior to the meeting, an agenda of intended topics for discussion. After the meeting, the agenda will become part of the public record.

Meeting participants will be encouraged to submit written comments to the public file, so that all interested parties have the opportunity to review and consider the views expressed.

# # #

http://www.sec.gov/news/press/2010/2010-135.htm

excerpts:

Chain-of-title is not just an issue for the buyers and sellers of particular homes and title insurance companies. Some entity – and most likely several entities – are claiming these mortgages and loans
as assets when regulators and investors are determining solvency and compliance, but disavowing these same “assets” when acknowledgement of ownership would result in responsibilities ranging from payment of taxes to lawn mowing.

Stern employees often sign as if a bankrupt or out-of-business company or a failed bank owned the mortgage and loan up until foreclosure is imminent. In county recorders’ offices across the state, the Stern-created records show that the trusts acquired mortgages and loans on dates when no such acquisitions ever took place. The trusts claim ownership solely to prove that they have the right to foreclose. The date selected is arbitrary – chosen by Stern or LPS or the mortgage servicing company. In reality, residential mortgage-backed trusts did not rush to acquire billions of dollars in sub-prime non-performing loans in 2008 and 2009 as these assignments falsely state.

Scribd

DinSFLA: I do understand this is for criminal but…

MANATEE COUNTY — As state and local budgets continue to shrink, public agencies across Florida strive to find more efficient ways to serve the public. In many cases, technology offers solutions that lower costs and minimize the complexity of previously manual processes. In March 2010, Manatee County Clerk of the Circuit Court, R.B. “Chips” Shore used technology to achieve both of those outcomes and has now been sued by the State of Florida’s Attorney General’s Office and the Public Defender of the Tenth Judicial Circuit.

At issue is Shore’s use of technology to provide all necessary copies of original transcripts for indigent criminal appeals. In March, the Clerk’s office began providing transcripts on CD-Rom to the Attorney General and the Public Defender. The decision to provide transcripts in electronic format is based on Administrative Order 2010-1-2 signed by the Honorable Lee Haworth, Chief Judge of the Twelfth Judicial Circuit, in re: Court Reporting Plan. A portion of the plan calls for the clerk to provide copies of transcripts for indigent criminal appeals. “In all publicly-funded cases the clerk of the lower tribunal, rather than the court reporter, shall prepare all necessary copies of the original transcripts…the court reporter shall furnish electronic copies of all transcripts in Microsoft Word on a CD-Rom to the clerk…

Continue Reading….The Bradenton Times

Below is the case:

STATE v. SHORE

STATE OF FLORIDA, OFFICE OF ATTORNEY GENERAL, and THE PUBLIC DEFENDER, TENTH JUDICIAL CIRCUIT, Petitioners,
v.
HON. R.B. “CHIPS” SHORE, CLERK, MANATEE COUNTY, Respondent.

Case No. 2D10-1932.

District Court of Appeal of Florida, Second District.

Opinion filed July 28, 2010.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa; James Marion Moorman, Public Defender, and Robert A. Young, Assistant Public Defender, Bartow, for Petitioners.

Katherine E. Giddings of Akerman Senterfitt, Tallahassee, and Edwin T. Mulock, Bradenton, for Respondent.

WHATLEY, Judge.

The Attorney General for the State of Florida and the Public Defender for the Tenth Judicial Circuit have filed jointly against the Manatee County Clerk of the Circuit Court a petition for writ of mandamus. The petitioners complain that the Clerk, in more than twenty criminal and juvenile appeals since March 2010, has provided the petitioners with only CD-ROMs containing the trial transcripts in Microsoft Word. The petitioners claim that the Clerk’s failure to provide them with paper copies of the transcripts violates certain rules of procedure. They ask this court to direct the Clerk to provide them with paper copies. Because we conclude that the Clerk has not complied with his ministerial duty to provide the petitioners with the trial transcripts in the paper format required by the relevant rules of procedure, we grant the petition.

Facts and procedural history

On January 7, 2010, the chief judge of the Twelfth Judicial Circuit issued an administrative order. In pertinent part, this order directs as follows, with respect to felony appeals:

In all publicly-funded cases the clerk of the lower tribunal, rather than the court reporter, shall prepare all necessary copies of the original transcripts [footnote citation to Florida Rule of Appellate Procedure 9.140(f)(2)(F)]. Pursuant to Rule 9.200(b)(2), AOSC07-41, and AOSC07-28, the court reporter shall furnish electronic copies of all transcripts in Microsoft Word on a CD-Rom to the clerk of the lower tribunal and the parties.^{[ 1 ]}

In response, on March 5, 2010, the Manatee County Clerk of the Circuit Court issued the following memorandum to “All Appeal Attorneys”:

A new Administrative Order in our Circuit makes “the clerk of the lower tribunal, rather than the court reporter, the preparer of all necessary copies of the original transcripts.”

Enclosed is a copy of the transcript(s) on CD-ROM which have been provided to the clerk by the court reporter. Also enclosed is the Record on Appeal and the index.

If you should have any questions, please feel free to contact [employee name] at [phone number].

Thank you in advance for your cooperation in this matter.

Based on the administrative order, the court reporter now sends the Clerk the original paper transcripts and a CD-ROM containing Microsoft Word files of the transcripts. The Clerk apparently duplicates the CD-ROM and forwards a CD-ROM to each of the appellate attorneys, including the petitioners in this proceeding. The Clerk forwards the paper original of the transcripts to this court. The Clerk also forwards the record other than the transcript to all recipients in traditional bound paper format.

The Attorney General and the Public Defender assert that the Clerk is violating the appellate rules by failing to provide them with paper copies of the transcripts. They also argue that their budgets do not cover the costs of printing their own paper copies and that problems with inconsistent pagination among the parties and this court may arise if the petitioners have to rely on the CD-ROM versions of the transcripts. As a result, the Public Defender has been delaying processing the appeals pending resolution of the present petition. The Clerk asserts that he is following the rules correctly while operating under statutory and supreme court mandates to go paperless, that the Clerk’s budget is likewise limited, and that any problems with pagination would be the fault of the court reporter.

Discussion

The resolution of the issue of whether the Clerk may provide the parties with transcripts in CD-ROM format only is grounded in the rules of judicial administration and appellate procedure.^{[ 2 ]} Florida Rule of Judicial Administration 2.535(a)(6) defines “official record” as “the transcript, which is the written record of court proceedings and depositions prepared in accordance with the requirements of subdivision (f).” Rule 2.535(f) reads, in pertinent part:

(f) Transcripts. Transcripts of all judicial proceedings, including depositions, shall be uniform in and for all courts throughout the state. The form, size, spacing, and method of printing transcripts are as follows:

(1) All proceedings shall be printed on paper 8 ½ inches by 11 inches in size and bound on the left.

Fla. R. Jud. Admin. 2.535(f)(1); see also Moorman v. Hatfield, 958 So. 2d 396, 400 (Fla. 2d DCA 2007) (Altenbernd, J., concurring) (discussing rule 2.535 and noting that an audio compact disc does not constitute a transcript). The remainder of rule 2.535(f) delineates further technical specifications for transcripts such as font size and indentation. Individual volumes must be no more than 200 pages in length. Fla. R. Jud. Admin. 2.535(f)(9); see also rule 9.200(b)(2) (providing for the same 200-page limitation).

The core appellate rule concerning the record is Florida Rule of Appellate Procedure 9.200. Rule 9.200(a)(1) defines the record as “the original documents, all exhibits that are not physical evidence, and any transcript(s) of proceedings filed in the lower tribunal,” with the exception of certain documents not at issue here. Rule 9.140 delineates the procedures for criminal appeals. As for the record in criminal appeals, rules 9.140 and 9.200 are to be read together to determine the appropriate procedures. See Fla. R. App. P. 9.140(f)(1) (“The clerk of the lower tribunal shall prepare and serve the record prescribed by rule 9.200 within 50 days of the filing of the notice of appeal.”); see also Fla. R. App. P. 9.140 committee notes, 1977 amend. (“Subdivision [(f)] applies rule 9.200 to criminal appeals and sets forth the time for preparation and service of the record, and additional matters peculiar to criminal cases.”).^{[ 3 ]}

Rule 9.200(b)(2) requires the court reporter or transcriptionist to “transcribe . . . the designated proceedings” “[w]ithin 30 days of service of a designation.”^{[ 4 ]} The routing of transcripts, once prepared by the court reporter, differs between the two rules. The default routing procedure delineated in rule 9.200(b)(2) requires the court reporter to distribute the transcripts by serving copies on the designated parties and filing the originals with the clerk of the lower tribunal. The transcripts must be distributed in paper format and as an “electronic copy”:

Within 30 days of service of a designation, . . . the approved court reporter, civil court reporter, or approved transcriptionist shall transcribe and file with the clerk of the lower tribunal the designated proceedings and shall serve copies as requested in the designation. In addition to the paper copies, the approved court reporter, civil court reporter, or approved transcriptionist shall file with the clerk of the lower tribunal and serve on the designated parties an electronic copy of the designated proceedings in a format approved by the supreme court. If a designating party directs the approved court reporter, civil court reporter, or approved transcriptionist to furnish the transcript(s) to fewer than all parties, that designating party shall serve a copy of the designated transcript(s), in both electronic and paper form, on the parties within 5 days of receipt from the approved court reporter, civil court reporter, or approved transcriptionist. The transcript of the trial shall be securely bound in consecutively numbered volumes not to exceed 200 pages each, and each page shall be numbered consecutively. . . .

Fla. R. App. P. 9.200(b)(2) (emphasis added). The clerk then transmits the record, including the transcripts, to the appeals court. Fla. R. App. P. 9.200(d)(3).

In derogation of this procedure in criminal appeals, the court reporter does not forward copies of the transcripts to the parties. Rather, the court reporter files with the clerk of the lower tribunal the “original transcripts for the [appeals] court” and “sufficient copies for the state and all indigent defendants.” Fla. R. App. P. 9.140(f)(2)(C). The clerk then distributes the record, including the transcripts or the copies, to the appeals court and the parties. Fla. R. App. P. 9.140(f)(4).

However, rule 9.140(f) provides for an exceptional procedure — the cause of the dispute here — whereby the court reporter files only the transcripts with the clerk, who must then make copies for distribution to the parties: “The lower tribunal may by administrative order in publicly-funded cases direct the clerk of the lower tribunal rather than the approved court reporter or approved transcriptionist to prepare the necessary copies of the original transcripts.” Fla. R. App. P. 9.140(f)(2)(F). The chief judge effected this exception by issuing Administrative Order 2010-1.2, as recited above.^{[ 5 ]} The clerk then distributes the record, including the transcripts or the copies, to the appeals court and the parties. Rule 9.140(f)(4).

The petitioners argue that the provision of rule 9.200(b)(2) requiring the court reporter to provide the clerk of the lower tribunal and the parties with both paper and electronic copies of the transcripts mandates that the Clerk provide the petitioners with paper copies. The Clerk argues that rule 9.140(f)(2)(F) says nothing about transcript format and that the format provisions of rule 9.200(b)(2) are not directed to clerks; therefore, the Clerk may provide an electronic copy rather than a paper copy if the Clerk so chooses, consistent with the paperless trend and the authority summarized earlier.^{[ 6 ]}

Conclusion

Although the plain language of rule 9.200(b)(2) is in the Clerk’s favor,^{[ 7 ]} we nevertheless conclude that rules 2.535(f)(1) and 9.140(f)(2)(F), read together, require the Clerk to prepare paper copies of the transcripts for the parties.^{[ 8 ]} Rule 2.535(f)(1) defines the default format of a transcript as the traditional bound paper format. Rule 9.140(f)(2)(F) directs the clerk to prepare copies of the “original transcripts.” As such, the Clerk must copy the paper transcripts, not copy (or, not copy only) the court reporter’s CD-ROM onto additional CD-ROMs for the parties. We further conclude, based on the use in rule 9.140(f)(2)(C) and (F) of the unmodified term “copies,” that the copies of the paper transcripts must also be on paper.^{[ 9 ]} Though not directed to clerks, the language of rule 9.200(b)(2) supports the view that the paper version of the transcripts is the default and that the electronic version is, for the time being at least, an extra: “In addition to the paper copies, the approved court reporter . . . shall file . . . and serve . . . an electronic copy” (emphasis added).^{[ 10 ]}

We conclude also that the requirements for issuance of a writ of mandamus have been met. Pursuant to the rules just discussed, the Clerk has a legal duty to provide copies of transcripts in a specified format and the petitioners have a clear legal right to that performance. See, e.g., Fla. Parole Comm’n v. Criner, 642 So. 2d 51, 52 (Fla. 1st DCA 1994) (noting that “[t]he entitlement to mandamus relief is dependent upon the showing of clear legal right on the part of the petitioner, and an indisputable legal duty of the part of the respondent”). Additionally, the act is ministerial; the Clerk has no discretion to prepare or not prepare the copies. See Lee County v. State Farm Mut. Auto. Ins. Co., 634 So. 2d 250, 251 (Fla. 2d DCA 1994) (“It is fundamental to the writ [of mandamus] that the legal duty of the public agency must be ministerial in nature and not discretionary”). Finally, we conclude that no other adequate remedy exists to ensure that the Clerk performs his duties. See Shevin ex rel. State v. Pub. Serv. Comm’n, 333 So. 2d 9, 12 (Fla. 1976), abrogated on other grounds by In re Emergency Amendments to Rules of Appellate Procedure, 381 So. 2d 1370 (Fla. 1980).

The petition for writ of mandamus is granted with instructions to the Clerk to provide the petitioners with bound paper copies of the transcripts in those criminal appeals in which the Clerk has provided only CD-ROMs or other nonpaper media and, going forward, to provide parties with paper copies of transcripts in all criminal appeals in which copies are required, subject to amendments to the rules of procedure and supreme court orders that may issue in the future. Because the sequence in which the Clerk provides the paper copies of the transcripts in the outstanding appeals is not ministerial, we issue no further instructions but urge the Clerk to prepare and forward the copies in the order in which the originals were received from the court reporter.

As we are confident that the Clerk will promptly comply with this ruling, we withhold formal issuance of the writ. This ruling is effective immediately and its effect will not be delayed by the filing of a motion for rehearing or other postdecision motion.

Petition granted.

NORTHCUTT and BLACK, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

This copy provided by Leagle, Inc.