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.