Thursday, December 13, 2012

Ian Valkenet joins the Firm!

Ian was born and raised in Baltimore. He attended Calvert Hall College High School as a McMullen Scholar, and was a member of several Championship and Nationally ranked varsity baseball and soccer teams.

Ian received his undergraduate degree from Boston College, where he majored in philosophy.

Ian is a graduate of the University of Baltimore School of Law,  where he was a member of the Thomas Tang National Moot Court Team that competed in Colorado. He also worked as a Rule 16 attorney for the Office of the Public Defender, handling dockets in the District Court of Baltimore City three days per week.

Ian has also served as a law clerk in the Felony Trials section of the Office of the Public Defender, and for Judge Clayton Greene, of the Maryland Court of Appeals. Prior to joining Young & Valkenet after graduation, Ian also worked as a law clerk for a Silver Spring based firm, working with experienced trial lawyers in civil rights, election fraud and criminal matters.

With Young & Valkenet, Ian will focus on trial practice and resolution of complex civil and criminal matters.

Monday, December 10, 2012

A bit of banking leap-frog.

On December 7, 2012, the Maryland Court of Special Appeals issued it's opinion affirming a trial court decision in favor of our client, Bank of America, N.A., protecting it's $201,000 lien from attack by another lender. 

The Bank of America building, in Baltimore, MD


The other lender, Dominion Financial, loaned about $200,000 to the prior owner of a home, but just did not get around to recording a deed of trust for several months.  Meanwhile, the house was sold to a young single mom, who borrowed money from BOA to finance her purchase.  Most of this borrowed money was spent paying off the seller's open mortgage loan. BOA then won the race to the land records, and recorded it's deed of trust, first. Dominion may have made it's loan before BOA, but it recorded second.

In the Circuit Court for Baltimore City, Dominion sued for a court order declaring that it's lien on the property was in the first position, entitling it to take all of the proceeds in the event of a foreclosure sale. On behalf of Bank of America, we argued that the law of "equitable subrogation" allowed BOA to leap-frog over Dominion to the first lien position because BOA had paid of an earlier lien owed by the seller.

This case took two years to wind through the court system. First, there was discovery in the Circuit Court, and the parties followed with cross-motions for summary judgment.  The case then went to trial, before the Hon. Evelyn Cannon.  At the end of the case, Judge Cannon found in favor of BOA, and Dominion appealed. This appellate decision ends the matter.

The path to a just result is long. In this case it was a two year journey!

But this is not just a "feel good" story of bank-versus-bank. The finality of this decision benefits the single mom who needs to discuss a loan modification or refinance. Open disputes between lenders often prevent borrowers from getting relief from their bank simply because the lender's situation is unsettled.

Wednesday, November 28, 2012

Will your dumb smart phone give you up to the police?


The police want access to your cell phone! And courts across the country are unsure about whether you are protected. What, exactly, is on your cell phone that you hope will remain private from government intrusion? Most everything, I am sure.

 
 
The Fourth Amendment of the United States Constitution protects us from warrantless searches and seizures by the government.  A search can include reaching into your pocket, collecting a blood sample, or opening the trunk of your car.  What is unclear is whether looking through your phone is a “search.”  If it is a search, the police must first obtain a search warrant (which requires showing probable cause to a neutral judicial magistrate).  If not, the police may freely look through your phone. 
 
Whether something is a “search” depends on whether you had a “reasonable expectation of privacy” in the thing “searched.”  As an illustration, if you put something on the dashboard of your car, and park it in a public place, any person walking by can look through your windshield, and see the item.  You have no reasonable expectation of keeping that item “private.”  However, when you put something in your wallet, or in your nightstand, you can reasonably expect that item to remain out of the public view.  Thus, the police must have a search warrant to look in your wallet, but not through the windows of your car. 

When it comes to a cell phone, some courts consider it similar to a “container” which can be opened by the police during an arrest.  Other courts analogize a cell phone to a repository of private conversations, which would require the police to obtain a search warrant to inspect. 

Maryland's appellate courts have not ruled on the issue, but there is precedent suggesting that the contents of a cell phone require a search warrant for police to access.  See, Carpenter v. State, 196 Md.App. 212 (2010) (where police obtained a search warrant to retrieve pictures, text messages, and call logs from defendant’s cell phone).
 
And so, be mindful of your cell phone. It may be smart enough to remember all your esssential information, but too dumb to forget the incriminating stuff.

Wednesday, October 31, 2012

Hurricane Sandy can strike you twice!

A natural disaster can victimize you two times. Hurricane Sandy has already ripped through your life, tearing at your home and business. But the next steps of rebuilding your life and property can be just as difficult. You must  now negotiate the swirling storm that is your insurance claim process, and the repair and re-construction of your property.  All you want is what was lost.  But will you get it?



The construction industry has been re-energized by the devasation of the storm, and the prospect of billions of dollars in repairs. Will your insurance cover all necessary repairs? Will the contractor demand payments beyond what your insurance will pay? Or maybe you see a chance to upgrade your property but don't know how to expand the contract?

And is your contractor properly licensed by the Maryland Home Improvement Comission? Or, is your contractor often in court, defending against claims of faulty work? The good ones will be very busy, and difficult to schedule. The worst will be ready to take your deposit and then disappear quicker than a sudden change in the weather.

Let experienced counsel guide you through this second storm, and review your insurance policies, your repair contracts, and the performance of your contractors.We've been doing this work for over 25 years, for homeowners and contractors. Getting your lawyer involved, early, can save you the pain of this second storm.

Friday, October 26, 2012

Van Noteriety

Susan Elizabeth Van Note was admitted to the Missouri Bar Association in 1993, and the Kansas Bar Association the year after. She was an experienced estate planner whose website advocated the importance of estate planning. Ms. Van Note implored prospective clients that
[n]ow is the time to make the meaningful plans that will empower you to make a difference in the lives of your loved ones.
Ms. Van Note is currently being charged with the murder of her father, William Van Note, having used a forged power of attorney in order to pull the plug after he survived being shot---by Ms. Van Note. She is charged with murder by legal form.



A fairly succinct summary of the alleged crime is found here.

It’s not hard to see why this all is so interesting, though I’d make the argument this isn’t an ironic case. Irony, in its strict definition, requires not merely a discrepancy between the overt and the covert, but in fact a contradiction. Liz Van Note was an estate planner. It isn’t ironic that she used a forged estate planning document as a murder weapon anymore than it would be ironic for a dentist to use uncomfortable orthodontic equipment to keep their kids quiet at night. It is a perverse and a gross misuse of her legal position, a violation of her responsibilities, yes, but also strangely appropriate. She, like the hypothetical dentist, used the tools at hand.
Liz Van Note isn’t guilty of wholly contradicting the principle theme of her profession, but rather taking those principles to a horrifying extreme. When Liz Van Note plans her estates, she plans the hell out of them.


 

Wednesday, October 24, 2012

A false deed will not go unpunished.

Recording an altered deed will send you to the slammer. On August 20, 2012, the Maryland Court of Appeals reinstated the Circuit Court criminal conviction of Mr. Neger, who had altered the identity of the grantee in a deed. Click here to read Judge Barbera's decision.

Maryland law says it just isn't kosher to counterfeit any aspect of a deed "with intent to defraud another." Judge Gale Rasin, of the Circuit Court for Baltimore City convicted Mr. Neger under the statute, finding that his alteration of a deed to substitute himself as the grantee (the person receiving title) was "a fraud on the system of recording deeds."

Mr. Neger argued his good faith belief that he was the true owner of the property negated the crime. He took his argument to the Maryland Court of Special Appeals, where the conviction was reversed. The intermediate appellate court held that generally throwing a false deed into the land records was not a fraud on any particular person, and thus did not satisfy the statute's admonition against defrauding "another."  The Specials held that "another" necessarily referenced a specific person, and not the greater mass of folks that rely on the accuracy of the land records system, such as you and me.

The highest appellate court, Maryland's Court of Appeals, granted special permission for an additional appeal of the Specials' decision (given the fancy name "writ of certiorari"). The conviction was reinstated.



Judge Barbera wrote that the "intent to defraud another" exists where it is directed at any persons who rely on the recording system.  It is not limited to a particular person in a particular transaction. In this case, Mr. Neger's good faith belief that he owned the entire interest in the real property did not negate the intent to defraud. He knew others would rely on the recorded item as a true statement of ownership, and that his name appeared as the grantee only because of his alteration.

So, what's the penalty?  Well, aside from the weight of having a conviction for fraud follow you around, the on-line court docket shows that Mr. Neger received a two year sentence, with all but one day suspended, and two years probation.

Wednesday, October 17, 2012

Facebook needs a "probable cause" button.

Your Facebook privacy settings don't block access by the U.S. Government. Any one of your Facebook "friends" can be pressured into exposing your messages, wall posts and photos. Once you give "friends" permission, they are free to give anyone else permission to gaze into your life through their account. Look what's happening to Mr. Meregildo, in New York.

Uncle Sam could not get direct access to Mr. Meregildo's Facebook account, and it lacked the probable cause to obtain a search warrant.  So, the Government made a real "friend" of one of Mr. Meregildo's Facebook "friends. Uncle Sam's new buddy gave access to Defendant's page. This allowed the government to circumvent privacy settings of the Defendant.The U.S. Government then applied for a search warrant seeking direct access to Mr. Meregildo's Facebook account.

Mr. Meregildo's lawyer attacked the Government's method of developing probable cause, and moved to supress.Judge William H. Pauley, III, a President Clinton appointee, gave the Defendant's rights a good 'ole Tanya Harding whack across the knees in his August 10, 2012 opinion, captioned as United States v. Meregildo.

Sharing with "friends" gave the Government access needed to see "...posted messages regarding prior acts of violence, threatened new violence to rival gang members..."  It was access to the Defendant's Facebook page that "formed the core of the Government's evidence of probable cause supporting it's application for a search warrant."

Judge Pauley held that when privacy settings restrict postings and photos to "friends, " the Government may access your profile through access of any cooperating witness that is on your "friends" list.  This does not violate the Fourth Amendment to the U.S. Constitution. It's like a phone call, where one of the parties agrees to let the Government record the call. So think of all your Facebook "friends" as if they are wearing a wire!

According to this judge, we have no reasonable expectation that our restricted profile information will be kept private, in turn, by our "friends."  Our "friends" are free to cooperate with the Government, and to disclose information necessary to convict us of crimes.

Instead of a "poke" button, perhaps Facebook could add a "probable cause" button for our "friends" to push when cooperating with the authorities to send you to prison.



Friday, October 12, 2012

Do-it-yourself law means do-it-again.

Consumer Reports confirms that lawyers do it better. There is a place for do-it-yourself document drafting for the most basic transactions, like the sale of your motorcycle or a  simple power of attorney.  And just about any document you buy on-line will "look" official enough. But will it do what you intend?

When you hire counsel, it's not the document you are buying- it's the advice and experience. Whether a document is complete, serves your personal or business goals, and contains important provisions tailored to your situation, is the lawyer's particular talent.

Like a trained carpenter, your lawer can hit the nail on the head in fewer strokes, with less effort, and he will drive it deeper.

Over the last six months, I have interviewed several potential clients seeking advice on how to fix mistakes created in their DIY documents. And in every instance, the cost of the fix far exceeds the cost they would have incurred, if they had only visited me first!

Call and let us schedule your visit.

410-323-0900

Thursday, October 11, 2012

Linkedin lockout loss for employee.

Your boss can sever your Linkedin connections, and make them his own. Are you reading this at work?  Perhaps you just checked your Linkedin account for messages, invitations and business opportunities? And surely you keep in touch with social friends, some family and old school buds on Linkedin, too? Well, quit your job or get fired, and you may just lose access to that account.

Linda Eagle lost access to her account for over 20 weeks, and she was angry enough to sue her employer for the lost opportunities to "connect," and network. She figured it was worth at least $100,000 in damages.

The judge did not agree.

On October 4, 2012, Judge Ronald Buckwalter, of the U.S. District Court for the Eastern District of Pennsylvania, issued a memorandum opinion granting summary judgment against Ms. Eagle. The court found her damage claim to be speculative.  After all, how do we quantify the value of our vast Linkedin networks? 

Personally, it's mostly been worth a few Orioles game tickets and pleasant lunches.  How much time did Ms. Eagle spend on the site, I wonder, to make it worth $100,000? And with whom did she connect, Mr. Trump?



But it's not the tenuous nature of her lawsuit that captured my attention--and it is pretty close to frivolous, to me--it's the statement by the court about the employer's practices.  Buried in the opinion is the rather bland recitation that it was corporate policy to encourage individual employees to create on-line accounts, but to then take over the account upon the employee's separation.

So, as you check in on Linkedin and other websites from your office chair, ask your self whether it is truly your account, or your employers? Is it in your policy manual? Has your employer required disclosure of your passwords?  Who owns the content of your profile, anyway?

Food for thought.

You can find my Linkedin profile, here. Let's do lunch.




Tuesday, October 2, 2012

Facebook tagging leads police to suspects in home invasion party.


A Florida family on vacation had no clue their home was invaded by friends of their teen children, and used for a party while they were away. A Charlotte news outlet reports that only after Dad saw Facebook videos did he understand that his home had been converted to Party Central in his absence. The intruders had cleaned up, and left no evidence of the intrusion--except for photos posted to Facebook.



But this is more than another Facebook related story about "teens-have-no-judgment-and-do-dumb-things."  The most important part of the story is that "[o]fficers have a list of suspects, thanks to photo tagging..."
 
Facebook use is not anonymous.  When you log on and post, you must imagine that you are standing in the park, at noon, wearing an embarrasingly tight bathing suit as everyone in your hometown walks past, including the Chief of Police.  It is a source of information about you, your life, your contacts, where you've been, and what you've done---to others, and with others---and possibly in violation of the law.
 
Your content is all subject to use in the criminal courts, in Maryland and abroad. You can even be served through your Facebook account!

But there is another facet of this story that is only suggested by the text: Dad had access to the kids' Facebook pages. The story suggests that he saw the video posted on someone's page, other than his own kid's, and that alerted him to the crime. Good for him! Frankly, if your kids are using social media, then you must know enough to monitor your kids on social media.

And there is a darker aspect of Facebook posting.  The Dallas Morning News reported that a woman upset about the court testimony of an undercover police officer against her buddy, "outed" the officer through his Facebook posting on his (the cop's) relative's Facebook page. Her friend then printed up fliers, to be posted around town, identifying the officer. The article points out that even police departments are having a tough time articulating Facebook and social media policies, even for their undercover folk.




Sunday, September 30, 2012

Save your boat! Contest that maritime lien in Maryland's District Court.

Your boat needs care and attention, even in tough times. But you may fall behind, or be unable to pay the bills for repairs, bottom painting, towage, slip fees or other necessaries. And as a tough economy has made it difficult to maintain your home mortgage and business expenses, maybe you've let bills for services to your boat go delinquent. So,imagine your shock and dismay when you receive a document several weeks later announcing that your boat will be put up for public auction, perhaps in as little as ten days. YOUR BOAT!!  Sold at auction in ten days!

Or maybe you've already received a notice?

Your mind will fill with questions---How do I contest the lien? Can I get my boat back? What can be done to stop the auction?
 
Only preferred ship mortgage liens must be filed with the USCG National Vessel Documentation Center. All others may be filed, but are not required to be registered. Maryland law operates to impose a lien on your boat whenever someone is hired to provide services or materials to maintain, run, or repair the vessel. Nothing has to be filed, the lien just exists if the service or material is provided and you fail to pay. This is very different from liens on land and houses, which arise from items recorded in land records and the courthouse.  Maryland's land records system has no companion "sea records" recording system.

Your boat can be subject to liens for state and federal taxes, UCC filings, storage, repairs, supplies, crew wages, salvage, and fuel.  In one famous old case, a very large vessel was subject to a maritime lien for a case of the Captain's wine!

Different types of liens have different statutes of limitations.  Some are as short as six months, or two years.  And some become unenforceable if a third-party buys your boat without notice of a pending lien. 

But if you continue to own your boat, you remain at risk. And you may someday receive a notice that declares YOUR BOAT will be auctioned within ten days. That's right, if you miss the notices published in the newspapers, your first notice of the potential auction of YOUR BOAT may be no later than ten days before the auction!

Fortunately, the Maryland Court Rules contains a powerful tool to stop the slide to lien foreclosure sale.  It is called Replevin.

You regain control by filing a replevin action in the District Court of Maryland. It doesn't matter how big or small your boat may be, the District Court has jurisdiction over all replevin cases.  A properly filed replevin case forces a hearing, usually within three weeks of filing the papers, to determine what can be done with the vessel pending trial. You may have to post some sort of security, but you can get control of your boat!

The case will then be set for a trial.  You will then have the opportunity to contest the basis for the lien, such as whether the goods and services were actually provided, or were provided in good order. 

And, as with all court cases, the passage of time and a schedule of events will provide many opportunities for you to settle the claim in a way that keeps you cruising or working the Chesapeake Bay!

And that's the "hull" truth.


Monday, September 17, 2012

Crayola in the Courts!

Around my office, the brief writing mantra is simple, "if I have more time, it could be shorter." Brevity and clarity are constant touchstones. The length of a brief is often inversely  proportional to it's persuasiveness. I've written about this, before, because it is a favorite subject.

But judges cannot rely on the efforts of counsel to craft short and concise briefs.  And so, most courts have page restrictions, and margin and font requirements. The idea behind these requirements is to prevent lawyers from "cheating" the process by squeezing additional text into a document (and thus make longer arguments) by manipulating spacing and font size.

In current federal litigation over South Carolina's voter ID law, the Department of Justice argued that South Carolina's use of 12 point font, where the court's rules require 13 point font, "prejudices the United States." One of my favorite blogs, Lowering the Bar, casts satirical light on this most trivial dispute among lawyers.

And it is not just the fact of the dispute that is humerous, it is the court's response, which is the equivalent of a permissive parent saying "don't to it again" to a child who stole his sibling's cookie--there was no consequence. A whole lot of briefing and lawyer expense, and no consequence. South Carolina stole the Department of Justice's cookie and got a 20% space advantage in it's brief by use of a smaller font. I think that deserves a hearty cheer of "Go Cocks!"

I recall a discussion in the 1990's with the Clerk for Maryland's Court of Appeals about briefing requirements.  She had been instructed by the Chief Judge to create a cardboard cutout, much like a picture frame, to fit over any filed brief.  If any part of the text disappeared under the cardboard, the brief was to be rejected for violation of the court's rules on margins. Period. It was an immediate and non-negotiable consequence. And that consequence could have been devastating if the time for filing the brief had run, or could not be extended. In short, no cookie for anybody. These are things lawyers should take seriously.



But the rules seem to be relaxing beyond anything I could have imagined. A cartoon Amicus brief was recently filed in the Southern District of New York in a very high profile case involving Apple and other E-book publishers.  Really, I'm not kidding, read it, here. Heck, let your toddler read it on your next drive to the grocery store. It should keep her occupied for a few minutes.

And enjoy this bit of dreck exchanged in the pettiest of disputes to ever waste a court's time. Stick figures and unlicensed images take the place of words.  A nicely traced middle finger would have sufficed, too.

I better run to Toys 'R Us and buy a fresh box of crayons and a box of construction paper....I have a brief due in a week.


________________________________________________________________

Post script:  After posting this item, I came across this refreshing item, posted by notable legal blogger Robert Ambrogi, of Legal Watch.  The Wisconsin Court of Appeals has fined a lawyer $100 for a sloppy case citation in a footnote. The case was incorrectly cited, leading the court to waste time seeking the correct page and case name.  And the citation did not follow rules of citation for unreported decisions. I don't wish a court fine on any hard-working lawyer, but this is refreshing.

Friday, August 31, 2012

Judge Tatel votes against voter suppression in Texas

Finally, a court stands against the disturbing trend of disenfranchisement of Americans. The Washington Post reports that Judge Tatel, of the United States District Court for the District of Columbia, has  denied a request by the State of Texas for a declaration that a voter identification law passes Constitutional muster. In a brief opinion, Judge Tatel concludes that Texas did not demonstrate the absence of a "retrogressive" effect on minority participation.

Read the entire opinion, here.

Judge Tatel is a sharp fellow. And despite being a Clinton appointee (to replace Ruth Bader Ginsburg), he has not followed any party line in his notable decisions. Here's hoping the Supremes uphold this decision.

My God, in what bizarro world is it a modern American value to actively suppress voter participation in such a blatantly partisan manner? Especially where the evidence of voter fraud is virtually non-existent?  Shame.


Tuesday, August 28, 2012

Feed the pigs, but slaughter a hog

The pig has long been a symbol of our basest instincts, including greed and gluttony.  The grossest of porcine references is to be called a "hog." This seems to be a universal idiom for the most gluttonous among us, used to brand those who push beyond being sated into the realm of voracious over consumption of limited resources. 

We can tolerate a pig, but the true hog among us deserves to be completely eviscerated.


The Times-Tribune, of Scranton, Pennsylvania recently reported the antics of one such hog, Peoples Neighborhood Bank (hereinafter "the Hog"), and a lawsuit filed by it's customer, Sheila Layo. 

The Hog loaned money to Ms. Layo to purchase a house. Perfectly normal and expected.

The settlement attorney (a piece of work currently suspended from the practice of law for other transgressions) disbursed the loan, and had Ms. Layo sign all the settlement papers.  Perfectly normal and expected.

The settlement attorney failed to record the deed into Ms. Layo, or the deed of trust securing the Hog to the real property.  Not normal, and not expected.

The Hog knew it was not secured, and knew that Ms. Layo's deed was not recorded. And the Hog knew this for several years, but continued to accept 42 monthly payments from Ms. Layo. Definitely not normal, and certainly not expected by Ms. Layo.

Ms. Layo tried to refinance, but was denied because she was not the record owner of her house.  She also had lost the financial benefit from significant tax breaks, because she did not own her house. When she alerted the Hog, it refused to act, but insisted on receiving her continued monthly payments. It appears from the story that the Hog didn't follow the ordinary course, and make a lender's title insurance claim.  The insurer would have then hired outside counsel to record the deed, and the deed of trust. The insurer would have paid the costs to record, even if the money had already been aggregated in the settlement lawyer's accounts before being lost or stolen.  As further insult to Ms. Layo, the Hog told Ms. Layo that SHE would have to pay the costs of a second settlement if she wanted a recorded deed evidencing her ownership of the home. 

Oink, oink, snort.

Ms. Layo has a long way to travel on her way to a money judgment, but there aren't many who will shed tears if she dines on a pork chop or two when the case resolves.

Visit the Young & Valkenet website.

Friday, August 17, 2012

Must I pay the real estate broker?

You've heard the story, and it goes like this-- "I had to back out of a real estate contract to sell my property, and now the broker is demanding that he get paid, what do I do?"

If you can't run to a phone and call us, here's the essential rule--a Maryland real estate broker is entitled to a commission upon his (or her) good faith procurement of a purchaser who becomes bound by a valid contract of sale. So, if the broker brings you a buyer, and the buyer signs, and the contract is now "live" and enforceable...you are on the hook to pay the broker, even if you never settle on that contract!

And as a general rule, especially in a very tight market, this is fair.  After all, most of the brokers I have met work pretty hard, and sacrifice quite a bit to make their deals work.


And it is not the broker's "fault" if you or the buyer cancel the deal, or one party defaults and refuses to close the deal.  In fact, this fact pattern describes at least six cases we've had in the last year.

You can avoid this result, of course, with the help of a lawyer.  You see, the statute is merely a legislative rule of construction.  It exists to supply a term of a contract that you and the other party simply forgot to include in the document, "when does the broker earn a fee?"

Our practice is to advise including contract terms that modify the default setting of the statute. You may agree that the broker's commission should only be paid from "proceeds of sale." That means you must settle on the deal before the broker is entitled to a fee. This also provides you with one more person motivated to help the deal along to completion!

Don't get caught by surprise! Read everything, and then have it all reviewed by a lawyer--before you sign!

Visit the Young & Valkenet website.


Wednesday, August 15, 2012

Pitbulls need a better lobbyist in Annapolis!

Since the Maryland Court of Appeals decision branding the breed "inherently dangerous," public pressure appeared to be mounting for our state politicians to overturn the decision through legislative fiat. That effort has failed, as reported by the Baltimore Sun on August 15th.

The State Senate drafted a bill that would have imposed strict liability for ALL breeds, from your infirm corgi to your neighbor's musclebound rottweiler. If the senate bill prevailed, the shelters may well have been full of all breeds of dogs, as they were abandoned by their apartment dwelling owners.  Want more? Fetch SB 2.here.

But the State House took a different tack.  It drafted a bill that would have preserved most of the common law, and eliminated common law defenses in limited circumstances.  The draft sought to preserve most of Maryland's "one bite" law.  In a reading mood? Chew on this copy of HB 1804.

But in a special legislative session that was called to address casino gambling, and the State's growing thirst for gambling income, the dogs were shooed off the legislative couch and sent outside.

Expect to see this issue return when the legislature returns in January 2013. Fido will have to live with the uncertainty, until then.



Of course, there is no legislation that protects the poor slob who gets mauled to death by his own Pit Bull, as was reported on July 11, 2012, in Ohio. Poor Mr. Brown was a dialysis patient who was attacked by his own beloved pooch while hooked to his dialysis machine....in the safety and sanctity of his own home!  After the attack, he remained conscious long enough to call the police, but, alas:
"The paramedics could not get to this individual, they needed the dog removed. It took our officer about 10 minutes to respond. By the time he had gotten there police had already shot the dog so the paramedics could get to the victim," ...Lt. Bardeau with Cincinnati Police say they hadn't received any complaints about the dog.
Ironically, Ohio repealed it's own breed-specific legislation three months ago. Perhaps Mr. Brown's dog felt empowered?

On July 5, 2012, a Canadian study reported that breed specific Pit Bull bans correlated with fewer hospitalizations of dog bit victims.Visit this summary as additional food for thought.

On August 27, 2012, the Baltimore Sun reported a dog attack at the nearby Waverly Market, an open air market near the former site of Baltimore's Memorial Stadium. I spent years visiting this market, and know well the restriction on dogs. This story reports on the dog left chained to a parking meter that broke free to maul a 20 year old woman.  And it was a Rottweiler, and not a Pitbull.

A distinction without a difference, in my book, as they are both musclebound jaws with eyes and blood lust.  But it should make a difference to our legislators and the Maryland Court of Appeals- the problem extends beyond Pit Bulls.

Chew on that.

Visit the Young & Valkenet website

 

Wednesday, August 8, 2012

You may still end up in debtor's prison

On a recent trip to Williamsburg, I spent some time in the ancient "gaol," where poor folks might have ended up for failure to pay their bills. Here's an excerpt of their history:

The only offense for which long-term imprisonment was common was debt, though this presented a paradox. Wealthy debtors who had money but refused to pay might be persuaded by the prospect of imprisonment to settle their obligations.

Locking up the poor, though, guaranteed they could never earn the money they owed, and this struck many as absurd. The New York legislature said in 1732 that "many poor persons may be imprisoned a long time for very small sums of money … to the ruin of their families, great damage to the public who are in Christian charity obliged to provide for them and their families … and without any real benefit to their creditors." Yet only in the 1830s did the United States begin to abolish debtors' prisons.
I spent just a few minutes in the jail cells (partly because my wife and traveling companions closed the door and held it shut!), and it was not fun. I was alone in a cell built for 8, but which often held up to 25, with no provisions for personal comfort or privacy.



But you can still be jailed for your unpaid debts!  The "debtor's prison" may have been officially abolished, but that doesn't mean you won't end up in jail after being sued for unpaid bills. Don't appear for trial or the post-trial examination, and you can be arrested--it won't matter if you owe $500 or $5,000 dollars! And see what this Alabama judge had to say on the subject of "private prisons." 

If you've been sued, it goes without saying that you MUST seek guidance of counsel to negotiate with your creditor, counter-sue them, or help you navigate through a bankruptcy. It is not necessarily your inability to pay that will get you jailed, it is your refusal or failure to participate in the judicial process, which will grind you to a pulp if you simply ignore that judicial summons.


[Update: check out this August 19, 2012 report, from St. Louis, that describes how Missouri folk are being imprisoned for days, for debts as small as $400-500!]

And even after the conclusion of the judicial process, including bankruptcy, you can still be haunted by old debt that remains on your credit reports. I've had so many questions about errors in client credit reports which cause disruption in their lives, I am sharing the publicly available information that will allow most folks a "do-it-yourself" remedy to ghost entries.

Once a debt has been written off and a 1099C has been issued, the debt can't be collected. Errors on your credit report must be corrected by the credit reporting agencies according to the Fair Credit Reporting Act.

Collect a copy of the 1099C and any other relevant information and submit this information to the credit reporting agencies with a request to correct your credit report. Inaccurate, incomplete or unverifiable information must be removed or corrected, usually within 30 days. However, a reporting agency may continue to report information it has verified as accurate.


Visit the Federal Trade Commission for a good summary of the process on the official government website. Check it out!

Call us, if you need help.


Visit the Young & Valkenet website.




Tuesday, July 31, 2012

When playgrounds attack!

In 2010, Mr. Griffith and his eight year old son, Christian, wanted nothing more than a bit of "family time." The Mount Tabor Park vintage wooden slide seemed just the thing. A forty foot ramp of highly polished maple marks this as a real throwback amusement. It's like an elevated bowling alley!


Folks enjoy this slide on burlap, towels, or even wax paper.  Hardy souls just travel down by the seat of their pants.


Looks fun, doesn't it? Little Christian Griffith was impaled by an 8-121 inch wooden splinter...in his belly.  Not exactly the fun filled afternoon his father envisioned.

A lawsuit was filed in the Circuit Court for Frederick County against the church that owns the slide, alleging a history of injuries due to splintered wood.  Young Christian sought $500,000 in damages.
On July 20, 2012, the parties settled the case for $60,000. While the church denied liability, I am sure that the potential proof of prior incidents created enough of a risk that the church's insurance company decided to pony up some money.

Remember, even churches carry liability insurance.  And even churches are responsible to avoid creating hidden dangers for you and your children.

When you or a member of the family is seriously injured on property owned by others, there is a series of questions that must be answered before you can sue.  For instance, were you legally on the property? And if not, was it reasonable for the owner to know that you would be on his property because some condition attracted you or your child?  Was the condition hidden, or latent? Or, was it so apparent that you should have known better? In the end, every owner must take reasonable steps to prevent harm to folks legally on their property. Where a public amusement is maintained, the duty is even a bit higher.

So, after the injuries are tended, and you or your loved one is on the mend, talk to a lawyer. We have handled many cases of serious personal injury over the last 25 years.

Visit the Young & Valkenet website.

Friday, July 27, 2012

Don't Skype yourself to jail!

The Washington Post reports that since Microsoft purchased Skype, the service has been modified to make it friendlier to intrusions by law enforcement.

"Lets Skype" is not protection from disclosure and prosecution for you and your clients.

Follow the link to read the full article.

Washington Post Skype Article

Visit the Young & Valkenet website.

Sunday, July 15, 2012

Dead is not forgotten- chasing the defunct corporation.

For my clients who need to chase down defunct corporations, the Maryland Court of Special Appeals just issued a nifty little opinion. On June 28, 2012, the COSA published Thomas v. Rowhouses, Inc., No 2102, Sept. Term, 2010.

And by "defunct," I mean companies that no longer exist because of forfeit charters, dissolution, and the existence or location of past directors is not known. This is a frequent problem with old deeds of trust and judgment liens that remain in the court and land records. These old ghosts mess up home and business sales, refinancings and other transactions, every day. It also involves small companies, with one or two directors, who go forfeit, but continue to do business and incur business liabilities (perhaps to someone like you?).

Tracking down these entities to complete the Constitutionally required service of process can take months, and costs our clients a lot of money. It can require hiring investigators, and even staking out homes and business offices. Sleuthing out a dead corporation for service can make even a routine default judgment pretty costly.



Judge Robert Zarnoch does a very nice job summarizing several procedural rules, and statutes, leading to the conclusion that service on the Maryland State Department of Assessments and Taxation is available as a last resort.

The case involves claims against former property owners for lead paint poisoning, but the discussion about serving process on a defunct corporation will apply to any other type of case, too.

What to take away from the case:
  • Be thorough, and request permission for alternate service on the SDAT only after all traditional and required methods of service have been exhausted.
  • Service on a former corporate director that has since died cannot be made on the dead person's estate. 
  • Start your lawsuit as soon as you reasonably suspect you have a claim. Filing suit early will toll, or stop, the running of the statute of limitation, and will give you time to perfect service or alternate service on the corporation.
So, don't think your case is over just because your target is a defunct company. Who can we find for you?

Visit the Young & Valkenet website.

Thursday, July 12, 2012

A white knuckle morning.

This morning's rising sun felt warm on my face, but it could not ease my growing apprehension. To my immediate left, a middle aged man stared intently over his bifocals at his glowing computer screen. His focus unnerved me as he appeared oblivious to all other objects within his immediate area.  And to my immediate right, a young lady gestured forcefully with her left arm as her right hand pressed a cell phone against her right ear. Whatever she was saying, I was happy not to be on the other end of that particular phone call.  In front of me, an elderly gentleman struggled to read a small folded newspaper. He paid no heed to the young lady, me, or Mr. Computer Screen. He appeared to fumble with a pencil or pen.

All of this terrified me.

You see, I was in my truck, traveling south on Route 95 at 65 MPH at the time. These folks were my fellow travelers, guiding their own 2000 pound vehicles toward points south of Baltimore.  Only thirty minutes earlier, I had kissed my wife goodbye, and whined a bit about being late for court.  But at that moment, I was not as concerned about getting to the circuit court in Rockville on time as I was about getting home--ever. 

As long as these nuts are on the road, I'm going to buy a larger truck.


A whole bunch of these folks are going to be in serious auto accidents,while they are reading, calling, texting and doing all manner of things when they should be DRIVING.  And many of these accidents will occur with other drivers who are also reading, calling texting and doing all manner of non-driving things.  Who wins in court?

Maryland is a jurisdiction where the plaintiff's contributory negligence, however slight, bars recovery. But did you know that Maryland is in the very, very small minority of states with this rule?  Look at this little group:
 


Alabama

Alabama Power Co. v. Schotz, 215 So.2d 447 (Ala. 1968).
DC

Wingfield v. People's Drug Store, 379 A.2d 685 (D.C. 1994).
Maryland

Board of County Comm'r of Garrett County v Bell Atlantic, 695 A.2d 171 (Md. 1997).
North Carolina

N.C.G.S.A § 99B-4(3).
Virginia

Baskett v. Banks, 45 S.E.2d 173 (Va. 1947).

The great majority of our United States applies comparative negligence, where recovery by the injured plaintiff is reduced or prohibited based on the percentage of fault attributed to the plaintiff.

So, if my happily distracted fellow travelers have an accident in states other than the five southern states listed, they may still recover.  But if their extra-curricular activities contribute to their accident, in any way, they get nothing in Maryland.

As if you need another reason not to drive distracted.

Visit the Young & Valkenet website.

Thursday, June 28, 2012

MERS survives another round in California, to fight again.

Like a punch drunk fighter staggering through another round in the ring, the Mortgage Electronic Registration System, or "MERS," has survived another court challenge to it's ability to make mortgage assignments on behalf of various lenders.



On May 17, 2012, the Court of Appeals for the State of California decided Herrera v. Federal National Mortgage Association, a case where a homeowner tried to invalidate a foreclosure by arguing MERS had no authority to make various assignments of recorded deeds of trust, and that this failure invalidated the current note holder's attempt to foreclose.

I've shared my thoughts, before, on why the popular attacks on MERS won't gain traction in Maryland's courts, since the Maryland Court of Appeals decision in Anderson v. Burson. But I have found one snippet within the Herrera opinion that is worth a moment of thought (and then you can get back to surfing Youtube videos of "Simon' Cat"--hilarious, by the way), and it is here (and the court's internal reference to" Fontenot" is to a prior case involving similar claims against MERS):

Furthermore, since the assignment of the debt (the promissory note), as opposed to the security (the DOT), commonly is not recorded, the lender could have assigned the note to the beneficiary in an unrecorded document not disclosed to plaintiffs. ... This is why in Fontenot the court rejected the plaintiff's claim to set aside the foreclosure as void based solely on the alleged invalidity of the MERS assignment of the note and DOT. The Fontenot court stated: "plaintiff was required to allege that [the bank] did not receive a valid assignment of the debt in any manner. Plaintiff rests her argument on the documents in the public record, but assignments of debt, as opposed to assignments of the security interest incident to the debt, are commonly not recorded. The lender could readily have assigned the promissory note to [the bank] in an unrecorded document that was not disclosed to plaintiff. 
 And there it is. This is the core of Marylands' Anderson v. Burson analysis. And it highlights the threshold issue in any case involving an attack on the lender's standing to foreclose, transfer servicing rights, file proofs of claim in bankruptcy, etc.--does the entity attempting to enforce any term in the debt or security instrument have rights in the unrecorded note?  And that means phsycial possession with a contractual right to enforce.

And this leads to another thought. Avoid the forensic loan audit scam. There is nothing in the generic 20 page "audit report" you purchase from these charlatans that will undercut the law.  If the entity enforcing the lien instrument has physical possession of the note, and has the contractual right to enforce it's terms, gaps in the chain of assignments just don't matter.  Save your money.

Monday, June 25, 2012

Baltimore County property tax scam

The Baltimore County Police and tax office report a growing scam, where you might receive a phone call from someone pretending to be a county employee. The caller will tell you that your property taxes are delinquent, and that a sheriff may be dispatched to your home if you don't pony up.

Follow the link to the official Baltimore County press release. Here are some points from the release:

  • Never give personal or banking information (account and routing numbers) over the phone.
  • Attempt to verify the identity of unknown callers, and if possible obtain a callback number. Remember, the phone number could be linked to a fraudulent location.
  • Never mail currency or checks to an unknown business or person(s).
  • Alert a close family member/friend and call police if the call appears to be suspicious.
  • Call the Baltimore County Taxpayer Services Section at 410-887-2404 if you have questions about your property taxes.
  • Call 911 immediately if a suspicious person comes to your door claiming to be a Baltimore County official collecting property taxes. Baltimore County does not make home visits to collect taxes.
And here is the link to the County's official website, and it's instructions on how to pay your taxes

Wednesday, June 20, 2012

Cab Karma

I spent a relentlessly hot, sticky, muggy, sweaty, uncomfortable day in D.C., earlier this week. Or, as the native Washingtonians call it, "Tuesday." The three digit heat index and high humidity turned my pressed suit into a wet nap, with buttons.

I don't normally dwell on heat and humidity, because it just makes it worse. But as I sloshed along K Street (probably while leaving a long, wet trail, like a slug), I found myself counting the multiple layers of cloth and silk encasing and insulating my ample neck.  At least they are absorbent.

I also contemplated that if the voice-over in "Field of Dreams" implored Kevin Costner to "build it and they will come," what was Pierre L'Enfant listening too?  Likely a voice that intoned "build it and they will drown in their own juices." It's a myth, I know, that D.C. was constructed in a swamp. But it's been a persistent  myth.

A recent piece from John Kelly, of the Washington Post debunks the myth of D.C. as swamp (I've added my own links that did not appear in the original article, with apologies to Mr. Kelly). It's a Washington Post story, citing a Washington based scholar, and it's in writing, so it must be true. Here it is:
Some historians say that, contrary to popular belief, Washington had no swamps. Don Hawkins isn’t one of them. He studied maps and surveys from the late 18th century and determined that there was some swampy land — a whopping 1 percent of the total area that Pierre L’Enfant was charged with designing.
Don says there were swamps (defined as wetlands with trees) at the edge of the Anacostia, at Tiber Creek (today’s Constitution Avenue), around what became the National Gallery, and at Swampoodle, the Irish neighborhood near today’s Gonzaga High School. That’s just a fraction of the capital. No great reclamation project was needed to create buildable land.
In other words, it’s a gross exaggeration to say that Washington was “built on a swamp.”
“I think it has survived because it’s such a useful analogy for the way Congress works,” Don said.
 But in my sodden state, I was absolutely certain that L'Enfant had gazed over thousands of acres of wetlands, laughed into his sleeve, and declared "THIS will be a fitting home for the swamp of democracy." I cursed L'Enfant and expected that the coming negotiations at my next appointment would be quite sharp, partly because all manner of kindness was leaking out of me.

I needed a taxi cab.

I didn't have any cash.
I'd already ducked in and out of one cab, after reading the sticker on the back of a headrest, "cash only."

Damn you, L'Enfant.

I approached a bright blue taxicab, a modern Prius, parked in the shade as it's operator polished the door handles and wiped the windshield, much as I continued to wipe the drippings from the inside of my sunglasses. The cabbie was an elderly Indian fellow, dressed neatly in 70's era business casual, and not looking the least bit uncomfortable in the heat.  He acknowledged my greeting with a slight head nod, and he nodded again to confirm my understanding that he was "in service." In heavily accented english, he said that his shift was just beginning, and that I would be his first customer.  Oh joy!  I was headily anticipating the conditioned air that was about to caress me.  And I  hopped in to the back seat.

"Cash only."

Damn you, L'Enfant!

I apologized for the misunderstanding, wished him a good shift, and returned to my trail of tears. I'd shuffled about 20 feet down the sidewalk when the cabbie called out for me to come back. Very odd.  But I turned and walked back, thinking that perhaps he had found his credit card reader, or maybe even his "Square" device for iPhone (a stretch, I know, but he did operate a Prius, so forgive my first world rationalization).

The cabbie gestured toward the car door and told me to get in-- he would take me to my destination--free of charge.  For a moment, the shock of this kindness almost knocked the Baltimore lawyer right out of me.

As we drove, he gave me a quick rundown on his belief in Karma, and how this gesture would surely guide him to a profitable and safe shift. I offered to visit a cash machine, if he'd wait at the curb, but he refused.  He even insisted that he drive around the block to get me closer to the front door of my destination, without having to cross the street.

That fellow's singular kindness reinvigorated me. I wrung myself out, and finished the last of the day's meetings in a much better state of mind, making a productive and amicable deal with opposing counsel. On the train ride home I made a note to accept another MVLS case when I returned to the office.

Pay it forward.