Saturday, December 12, 2015

Maryland Home Improvement Laws protect homeowners, not contractors.

On December 11, 2015 we obtained a trial judgment favoring our client against a negligent home improvement contractor. The court's logic in awarding judgment predicts a new wrinkle in Maryland law governing the relationship between homeowners and the home improvement contractors they hire.

In our case, the home improvement contractor had a Maryland Home Improvement license. This is an absolute requisite to performing home improvements. Without a home improvement license the contractor may not enforce a contract against the homeowner. The unlicensed contractor will also be open to criminal prosecution by the Office of the Attorney General.

This is the well settled law in Maryland, since 1970.

But what if, as in our case, a licensed contractor hires unlicensed sub-contractors? There is no reported Maryland decision directly on this set of facts.

We believe the correct analysis is that the homeowner always wins, and that the licensed contractor may not enforce a contract where he has hired unlicensed sub-contractors to do his work. This is consistent with several provisions of the Maryland Home Improvement Commission regulations, and with recent cases.

For example, in a 2012 reported case, the Maryland  Court of Special Appeals refused relief to a licensed contractor that was defending a lawsuit by an unlicensed sub-contractor. Relying on laws saying sub-contractors must be licensed, the contractor had refused to pay for work done by the unlicensed sub-contractor.  The court rejected this position for a very simple reason--

Maryland's Home Improvement Laws exist to protect homeowners, and not contractors.

In the case involving the licensed contractor against the unlicensed sub-contractor, the appellate court said the protections normally afforded homeowners are not available.

And so, in our own case, the trial court refused to enforce the contract of the licensed home improvement contractor against our homeowner client because of the unlicensed sub-contractor. But the licensed contractor remained responsible to pay for our client for the damages it caused to our client's home.

While this case turned out correctly for our client, we do expect that this type of case will eventually percolate to the Maryland Court of Special Appeals. Once there, we also believe the appellate court will close the gap in the case law to more clearly protect the homeowner.

But if you are having home improvement work done, make sure your main contractor is licensed, and make sure that every one of his sub-contractors is also licensed by the Maryland Home Improvement Commission.

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Thursday, December 10, 2015

The intersection of Gun Control, the Second Amendment, and Due Process

Someone is too dangerous to fly, they’re too dangerous to own a gun.  It seems simple enough right?  Well, the discussion is a little more nuanced than that.  The “no fly list” existed before 9/11, but it was merely an infant compared to the goliath it has become.  Before 9/11 there were 16 (that’s right, 16) people the government deemed “no transport” because of specific or suspected threats to aviation.  So the governmentally-imposed restriction on commercial air travel was minimal, in a country of 285 million people.

Immediately after 9/11, the list grew to several hundred.  More than a decade later, it is estimated that there are more than 47,000 names on the “no fly list.”  

And how did those names get there? 

The answer is – nobody knows for sure.  Since the Supreme Court has not recognized a Constitutionally guaranteed right to travel by commercial airline, there is no requirement that the government afford any individual “due process” before adding him/her to the list.  And so, over the years, there have been several publicized instances of folks being informed they are on the “no fly list” (by accident, or otherwise) for the first time at the airport terminal.  But since there’s no constitutional right at stake, it’s not so offensive, right?  Just a pain in the butt for a very small portion of the population (which, since 9/11 has increased to ~320 million).

But this is where the conversation gets tricky.  The Constitution does recognize the right to bear arms.  And a citizen cannot be deprived of a constitutional right without due process.  Get the rub?

Assuming the government can add you to the no fly list without due process (which is the subject of extensive litigation around the country), the justification is "we're not infringing anything in the Bill of Rights."  But the recent push to also disqualify those same folks of the right to purchase arms crosses a Constitutional line.

If the proposed legislation passes the Congress, it will quickly pass to the President’s desk for signature.  Thereafter, it will pass quickly to the U.S. District Courts for challenge.

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Sunday, October 25, 2015

Expunge or shield your record before the job application.

Dumb mistakes carry long-term consequences.  Your misdemeanor conviction as a teenager will prevent you from getting certain jobs well into adulthood. Tickytack convictions have effectively barred a large portion of the population from meaningful jobs. To recapture this workforce Maryland’s General Assembly enacted substantial changes to the way “convictions” for minor offenses affect those convicted.  Effective October 1, 2015, the changes will both increase the availability of expungements, and create a new kind of protection – shielding – which has previously not existed in Maryland.

Changes to the Expungement law
 Prior to October 1, 2015, the law in Maryland prohibited expungement in certain situations where a defendant was convicted of a separate offense after the otherwise expungeable event.  Changes to the law removes that prohibition for all situations except probations before judgment.

Additionally, the law has been changed to permit folks convicted of crimes which, since the conviction, are no longer crimes (for instance: possession of less than 10 grams of marijuana, which was decriminalized in 2014), to expunge the former convictions.

The new “shielding” law
Under the new law, for certain “minor” crimes, Maryland permits someone who has been convicted, to petition to have their conviction “shielded” from the public.  The petition may be filed, at the earliest, three years after the completion of all the terms of their probation, parole, or mandatory supervision.  Convictions of crimes for which “shielding” is available are:

·         Disorderly conduct and disturbing the peace
·         Failure to obey a reasonable and lawful order
·         Malicious destruction of property
·         Trespass on posted property
·         Misdemeanor theft
·         Possession of certain controlled and non-controlled substances
·         Possession of drug paraphernalia
·         Driving without a license
·         Driving while license is canceled, suspended, refused, or revoked
·         Driving while uninsured
·         Prostitution

 “Shielding” is different than “expungement.”  Whereas an expungement compels destruction of all records of the incident, “shielding” merely hides the conviction from public view.  The conviction is still available to the police, health occupations boards, and certain employers and institutions that are subject to a statutory or contractual requirement to inquire into criminal background.  However, as to the public, and potential employers or educators, the law makes it illegal to compel disclosure on an application or in an interview.  It also makes it illegal for a potential employer or educator to refuse hire or admit an applicant solely based on the refusal to disclose shielded convictions.

Clean up your record, expunge or shield the past and get that job!

Friday, October 23, 2015

Voided reverse mortgage generates free money for poor Mrs. Black.

Lien priority disputes in Maryland courts are often resolved with the almost automatic application of equitable subrogation- where a lender pays off prior liens but fails to record a new lien it will be granted the prior lien status. This operates to defeat intervening liens, including federal tax liens, other mortgage liens and judgment liens. It is predicated on fairness. The property owner is encumbered by no greater lien than he had before, and the intervening lien holders do not receive a windfall because of another's mistake.

Our appellate courts have said that negligence on the part of the lender or settlement company in conducting a title search will not bar application of equitable subrogation. Some lawyers in our office joke that the bar is low enough that settlement companies could send a blind pig to conduct a title search and the lender would still prevail over intervening liens by the application of equitable subrogation.

And so the September 30, 2015  Nutter v. Black opinion by the Maryland Court of Special Appeals arrived on my desk like a cup of black triple espresso- I was wide awake even at page thirty-five, where the court slaughtered the blind pig. Where I fully expected equitable subrogation to save the lender, the appellate court declared "no." Most surprising was that the lender in this decision paid off a prior mortgage lien, gave the borrower cash, promptly recorded its own lien and then lost it all.

James B. Nutter & Co. gave Mrs. Black a reverse mortgage. But whomever searched title failed to pick up that Mrs. Black was the subject of a guardianship dating from 1989. Not only did the title search miss the guardianship in the court dockets, but it missed reference to the guardianship in a deed and deed of trust granted by Mrs. Black's guardian to the prior lender.

Mrs. Black was allowed to back out of her reverse mortgage!

Mrs. Black's court appointed guardian found out about the reverse mortgage by accident- he received notice from Bank of America of the payoff. The guardian then discovered the reverse mortgage, and found further that over $57,000 in cash had been deposited in Mrs. Black's personal accounts.

The resulting circuit court conflict between the reverse mortgage lender and Mrs. Black's guardian centered on Mrs. Black's capacity to make a mortgage. The lender took the position that Mrs. Black may have been incompetent but that it was the guardian's duty to promptly ratify or avoid the deal.  The lender argued that the guardian waited over a year, to the great prejudice of the lender. After all, the prior mortgage was paid, its lien was released, and Mrs. Black received a lot of cash.

The guardian held firm that because Mrs. Black had been adjudicated disabled she thus had no ability to make any agreements with the lender. He refused to ratify the reverse mortgage or to even return money paid by the reverse mortgage lender to payoff the Bank of America lien. And he demanded that the lien be declared void.

As a back up legal position the lender requested application of equitable subrogation. This would have given the lender the same lien position held by the bank paid off by the reverse mortgage.  And it would have left Mrs. Black in no worse position- she had a mortgage before, and she would have a mortgage after.

The trial court and the appellate court began their analysis at the same legal point. Both started with an examination of Mrs. Black's status as a legally disabled person. Surprisingly, Maryland has very little precedent discussing whether contracts with incompetent persons are "void" (like it never happened) or "voidable" at the election of the disabled person or the guardian. In fact, we have to search back to 1926 to find another similar case. But once this appellate panel answered the question, the remaining issues fell against the lender.

This opinion makes clear that once a disabled person is adjudicated incompetent, and awarded a guardian of person and property, then a contract to make a loan in exchange for a mortgage lien is void. It is a non-event. The documents have absolutely no legal value, and the lender who mistakenly contracted for the loan has nothing to enforce against the borrower or the property.

The position follows a simple declaration contained within the Maryland Estates & Trusts Code that upon adjudication all property of the disabled person vests in the guardian.  And so, in this case Mrs. Black was deemed not to have any property rights at the time she contracted for the loan. Having no property rights, she was without any ability to pledge the real property as security for the reverse mortgage.

At this point within the appellate court's analysis a title lawyer would reasonably expect application of equitable subrogation to salvage a partial victory for the lender- the court should have awarded a partial lien for the money loaned at least to the extent of the prior payoff. The apparent negligence exhibited by the lender in not finding guardianship records, or even the signatures of the guardian on the prior lien documents, should not have barred application of equitable subrogation.

So were my expectations as I turned to page 23 of the opinion, where I fully expected the warm blanket of equitable subrogation to safely swaddle the lender.

But this appellate panel determined the lender had no rights to receive anything in exchange for paying off the prior Bank of America loan. Quoting prior cases, the panel explained that:
It is undisputed that once properly yoked with the label of "mere volunteer" or "officious payor," a plaintiff is prohibited from recovering under theories of unjust enrichment or subrogation. It is less clear, however, precisely when a plaintiff's payment to a third party satisfying the liability of the defendant renders a plaintiff a volunteer and casts him or her "into legal outer darkness."
Once again, it was Mrs. Black's status as a legally adjudicated disabled person that drove the court to cast the lender "into legal outer darkness." Having no property rights, herself, Mrs. Black was not obligated to any lender. Only her guardian had any rights to contract, and thus only he had legal obligations relating to Mrs. Black's property.

The lender argued for application of equitable subrogation, saying that it had committed a reasonable mistake, even though the court records and title documents identified the guardianship. To this the panel said:
Because a disabled person lacks he capacity to enter into contracts and cannot encumber mortgage lender exercising even an iota of diligence and prudence would extend a loan to an adjudicated disabled person.
And there it is- the three judge panel drop their microphones and exit, stage right, leaving the lender with no loan, no lien, and no cash.

UPDATE:  On January 29, 2016, the Maryland Court of Appeals denied a petition for writ of certiorari (a permissive appeal to the highest appellate court on matters of public policy). The decision will thus remain, undisturbed, as the current statement of law in Maryland.

Several Maryland appellate decisions have recited that the neglect of a lender will not prevent equitable subrogation from saving at least a partial lien to the extent of the payoff to the prior lender. And within the last year a federal appellate court interpreting Maryland law correctly noted that equitable subrogation operates automatically, as a matter of law, at the very moment of payment. The lack of diligence or prudence of the lender is not the determining factor.

As the law of the land, we expect ongoing efforts by intervening lien holders to chip away at the automatic application of equitable subrogation by urging courts to more closely examine the relative lack of diligence or prudence of the lender.

Monday, October 12, 2015

Snoozing Yankee fan grounds out in $10 Million lawsuit.

As the saying goes, "truth is a defense" to claims for defamation, as one sleepy Yankee fan found out. His name is Andrew Robert Rector, and ESPN's cameras caught him napping at an April game between the Yanks and the Bosox (perhaps he knew where the Yank's season was headed?).  The commentators called him "oblivious," and chided him for sleeping at a game. As a baseball fan, I watch the video and wonder why he was wasting that ticket? But I've never found much in the way of rational thought exhibited by Yankee fans, particularly when found wandering publicly in pairs or larger groups. The team never should have moved from Baltimore to New York, where they are just not appreciated (please note the irony in my typing, as I bemoan the fading fortunes of my modern era Orioles, the free agent incubator).

As reported by the New York Daily News,
The TV station’s cameras picked Rector out of the crowd for about 30 seconds as he slumped over in a box seat at the game. Rector’s suit alleged ESPN broadcasters Dan Shulman and John Kruk went on an “unending verbal crusade” using words like “stupor,” “fatty,” and “stupid” to describe him, along with other “vituperative utterances.”

Wait, Mr. Kruk called someone else "fatty?" He spent a career challenging the outer elastic limits of baseball pants.

But Mr. Rector hails from the Land of Trump, where the governing principle is "when criticized for something you actually did, sue for $10 Million." And that is just what he did--Mr. Strike Zzz sued ESPN, the announcers, the local station and MLB. He alleged defamation and intentional infliction of emotional distress, among other things.

Judge Julia Rodriguez granted a defense motion to dismiss, saying the comments were not defamatory, and at worst, "reflected hyperbole or a looseness of words."  And any sports fan will tell you that is a charitable description of most broadcasts (Jim Palmer said that when he started broadcasting he most feared running out of stories. Newsflash--he has).

Not every criticism is an actionable tort, especially when it is an observation of a true event. Judge Rodriguez and I have a shared message to the great mass of Yankee fandom, "get over yourself." Like Mr. Rector, none of them has hit, caught or thrown a single ball for any one of those 27 World Series and 40 American League Championships. As I prefer to read Judge Rodriguez, the average Yankee fan has just been indicted for extreme sports hubris.

And remember another fan incident at Yankee stadium that captured press attention, albeit fictional?

Go O's.

Garnishment of joint bank accounts and the co-owner's rights.

On October 1, 2015, Maryland's Court of Special Appeals reminded us that the co-owner of a bank account can fight a garnishment of that account by the creditors of his co-owner.

The joint ownership of property (houses, cars, bank accounts) by non-married  folks does not prevent the judgment creditors (someone holding a money judgment obtained in court) of one owner from grabbing all the money in a joint account. The joint ownership of property by non-married persons is something we often counsel against--it is rarely a good idea. It is very common, for instance, that an elderly parent will put an adult child on a financial account for the convenience of the parent. The parent then relies on the adult child to make deposits, withdrawals, and to pay expenses for the benefit of the parent.

But imagine the parent's shock and surprise when a judgment creditor of the child garnishes the bank account, thus claiming entitlement to all the money. The elderly parent is immediately deprived of all the money.

For those who make this type of arrangement, the risk is that such a garnishment must be fought, in court. It is expensive for the very person who cannot afford the fight- the elderly parent.

Maryland provides relief where the co-owner, such as the elderly parent, claim ownership over the co-owner being garnished:
In approaching ownership of a bank account prior to the death of one of the parties, the current state of the law requires us to look at the intent of the [co-owner] and determine if he intended to make an irrevocable gift of ownership of the account. . . . [T]itling an account as “joint owners” presumptively creates an ownership interest in both parties, but that presumption can be rebutted by evidence of a contrary intent of the original owner of the account. 
The true owner of the money must come to court with clear and convincing evidence that the money is his. He must have proof that withdrawals and expenditures are for his benefit, and not the other persons. The source of the funds can also be used to demonstrate intent, but it is how the money is actually used that will determine the issue.

Sunday, September 20, 2015

Common sense still applies, even to Maryland shareholder disputes.

It's been the law in Maryland since the 1800's that corporate shareholders have an absolute right to inspect the books and records of the company. It is set down in our statute books and is akin to a Bill of Rights for shareholders. But a request for inspection is often the first skirmish in conflict between shareholders and the governing board and its members. The request is not always an innocent search for information, but often is an attempt to harass or even to gain competitive advantage. And if not handled properly by both sides, this initial request can birth lengthy and costly litigation.
On August 28, 2015 Maryland's Court of Special Appeals gave voice to common sense when it slapped down an minority shareholder's request for unfettered access to corporate records where he also owned a stock in a direct competitor. The initial request for information was innocent enough-- the minority shareholder sought only the information and records described in the Maryland corporations statutes. The corporation, however, asked that the requesting shareholder sign a confidentiality agreement before certain information was released, and that is where the litigation grew out of control. The request was made because the requesting shareholder also owned a separate and competing business.
The trial court judge heard argument on the requesting shareholder's demand that access under the corporation statute must be unfettered, and not subject to any limitations. He took the hard stand that his status as a potential competitor was not enough to require his written promise of confidentiality, to which the trial judge replied:
My ruling is based on a reasonable interpretation of the statute. And that is I cannot let a stockholder go into a company just because they own more than 5 percent of the stock and take the confidential records and books to a competing company. Not gonna let it happen
The unhappy shareholder appealed and received a second dose of common sense when the panel wrote:
We agree with the trial court’s “exercise [of] sound discretion” in requiring that appellant sign a confidentiality agreement. ..... A corporation may not deny a stockholder the right to inspect the books of account... A corporation may, however, require the stockholder to sign a confidentiality agreement where the confidentiality agreement and its terms advance the purpose of “protect[ing] the corporation against disclosure and misuse of confidential documents and information by the stockholder.” ...Here, the confidentiality agreement advances that purpose, because the requesting stockholder is also the owner of a company that is in competition with the corporation.
A request for corporate books and records is a powerful tool for the minority shareholder, but Maryland's courts will not close one eye when the requesting party seeks only access to competitive information. Common sense can still apply, even in the hand-to-hand combat of daily business life.

Monday, August 10, 2015

And in Maryland your broken leg is still the trustee's broken leg, even if you forgot to tell him.

The intersection between bankruptcy law and state tort law trips many lawyers and their clients. Just about one year ago, we posted about a District of Columbia case ("Your broken leg is now the trustee's broken leg, feel better?") where a fellow lost his right to sue in the Superior Court for personal injury precisely because he forgot to list the claim in his D.C. federal bankruptcy petition.  And now a Maryland appellate court has confirmed the same result for a Maryland litigant who fails to disclose a potential state court claim in a Maryland federal bankruptcy petition.

The Maryland case is called Schlotzhauer v. Morton, decided July 30, 2015, if you're inclined to read the published opinion. But here it is, in a nutshell:

  • Ms. Schlotzhauer filed for bankruptcy and did not disclose that she had a claim for personal injury.
  • She waited until the bankruptcy was over to file a lawsuit in a Maryland Circuit Court.
  • The Circuit Court granted the defendant's motion and kicked Ms. Schlotzhauer out of court because her claim belonged to the bankruptcy trustee, and not to her.
Ms. Schlotzhauer had to fight to get her claims back, and that included reopening her old bankruptcy to regain control over her personal injury claim. She then had to return to the Maryland courts to overturn the summary judgment.  With this decision, the Maryland Court of Special Appeals has released her to pursue her claim in the Circuit Court. 

But her lawyers sure could have saved themselves a whole bunch of aggravation.  If you have tort claims against others (personal injuries or intentional actions such as assaults, libel, slander or even fraud) when you file for bankruptcy, here is the game plan:
  • Disclose the potential claims in your bankruptcy petitions. The moment you file a petition for federal bankruptcy protection, all of what you own becomes "property of the estate," and within the control of the trustee.You can't demand protection from your creditors without upholding your obligations to make full disclosure.
  • Negotiate with the trustee. Most trustees are not interested in pursuing tort claims, and will consent to release the claim back to you and your lawyer.  This is called "abandonment" of the claim by the trustee. If you skip this step, the claim remains under the trustee's control even after the bankruptcy case is dismissed.
  • Don't miss your statute of limitations! Whether the claim is held by the trustee or you, that limitations period just keeps ticking along.  Act promptly.
And if you have simply forgotten or through some mistake a claim was never listed in your past bankruptcy, now what?  Like Ms. Schlotzhauer, you will have to return to the bankruptcy court to reclaim your rights to make the state court claim. Ms. Schlotzhauer waited almost three years. The passage of time did not resolve the issue--her state tort claim remained property of the bankruptcy estate under the control of the trustee. 

Your bankruptcy case is a matter of public record, and your petition and schedules remain available for review to anyone searching the national federal database long after the case is closed.   And when you file a lawsuit in state court the lawyers for the other side are going to search those records to determine if your broken leg is really your broken leg, or if it is still the trustee's broken leg.

Sunday, August 9, 2015

When truth cannot set you free, hire counsel.

We are often asked by potential clients accused of crimes, often referred by former clients, friends of the Firm or through, whether it is better to have private counsel or the public defender. The public defender exists to provide a basic criminal defense to those who cannot otherwise afford a lawyer.  And for the most part, the public defenders in Maryland do a fine job for their clients.

But sometimes, the public defender is just too overworked, as is demonstrated in this story out of Georgia.

As reported by Mother Jones in a story published August 6, 2015, Mr. Wyatt was re-arrested and charged for a crime that had already been prosecuted several years before. In fact, he had already served 179 days for the crime.  Yet, he sat in jail for another 110 days as the Georgia public defenders assigned to his case fumbled around, either ignoring his explanation of the prior case, or not promptly investigating the allegations.

Those who can afford their own defense counsel are truly fortunate- they receive personalized attention and prompt service by lawyers who often take their cause to heart.  But for those who cannot afford private pay counsel, the public defender can be hit-or-miss. Of course, the ordeal of Mr. Wyatt is an extreme outlier, but he could be any one of us.

Sunday, August 2, 2015

Kill your ground rent! Once and for all time.

If you own or lend against property in the Baltimore metropolitan area, it is very likely that you are involved in a ground rent- where there are two chains of title for the same property, one for the leasehold (the ground rent tenant), and one for the reversion (the ground rent landlord). There are currently almost 90,000 registered with the State of Maryland, and likely thousands more that are not yet registered.

Effective July 1, 2015, there are new rules in effect for the payment, foreclosure and redemption of ground rents. All triggered by the 2014 Goldberg decision of the Maryland Court of Appeals invalidating 2007 legislation which had gutted existing rules for ground rents.

Here is a brief summary:
  • .Ground rents must be registered. 
  • Very strict notice requirements must be met by landlords both before and after rents become due.
  • All lien holders shown in the land records must receive notice from the landlord.
  • Redemptions are much easier, and can be made at several points in the process, including for six months after a court order foreclosing a ground rent.
  • Claims for attorneys fees and added expenses are greatly limited.
  • Secured lenders may now independently redeem a ground rent.
While the new rules largely reinstate vested property rights wrongly stripped by the Legislature, the creation of a redemption right for lenders is the most significant addition. Under the old rules a lender could not redeem a ground rent, directly. The forms submitted to the State Department of Assessments and Taxation included an affidavit from the ground rent tenant. Often, this person was either absent or in the midst of a loan default or foreclosure. And so, he rarely cooperated to redeem where it merely paved the way to his own foreclosure.

The new law permits a lender to redeem when the mortgage loan to goes to default.  The bank can now "clear the decks" of a ground rent. That's pretty handy, if you're a bank or foreclosure trustee.

But most importantly, the cost to an owner for a ground rent redemption is relatively low.  The formula is contained in the statutes, and so there is no uncomfortable negotiations. And it doesn't even require knowledge of who owns the ground rent- the statutory redemption amount can merely be paid to the State Department of Assessments and Taxation. 

And so our advice to you owners and lenders is pretty simple-- kill your ground rent.

Sunday, July 19, 2015

Local Government Tort Claims Act limits rise in October 2015.

Effective October 1, 2015 the liability limits under the Local Government Tort Claims Act (LGTCA) will increase from $200,000 to $400,000 per individual claim and from $500,000 to $800,000 per total claims that arise from the same occurrence for damages from tortious acts or omissions.

The new law also extends the time limit for the notice requirement under LGTCA from 180 days to one year.

If you are injured because of some act or omission of a local governmental entity you now have one full year from the date of the act or omission to send the letter preserving your right to sue within the longer three year statute of limitations.  And if you are seriously injured, you may now collect more money.

Tuesday, July 14, 2015

Maryland stops frivolous foreclosure defense motions.

Maryland's intermediate appellate court provided clarity to a confusing rule, but at the same time made it more difficult to stop a residential foreclosure.

In Buckingham v. Fisher the Maryland Court of Special Appeals was asked to make clear what must be alleged in motions to dismiss filed in foreclosure cases.  Since 2009, the rules have separated motions to enjoin and dismiss foreclosures from the old rules on traditional injunctions. Among the requirements of the new rule is that the homeowner (or any other interested party seeking to dismiss or enjoin a foreclosure) must allege a defense that "on its face state[s] a valid defense." Absent this core requirement, the motion will be denied, and the foreclosure will proceed.

In Buckingham, the allegation was forgery.  The Personal Representative of one homeowner alleged that the signature of the other long-dead homeowner was forged. He alleged that the forgery made the deed of trust void from its inception.

For us lawyers, the most important part of this decision is the appellate court's direction that a motion to dismiss in a foreclosure case is scrutinized much differently than an ordinary complaint.  When a new case is filed, the complaint will survive a motion to dismiss if there is any basis from which the court may infer a valid claim. But in foreclosure cases, the allegations made against the deed of trust must be made with "particularity." And that is the highest civil pleading standard.

In short, the motion to dismiss a foreclosure case must meet the same pleading standards as cases alleging fraud.

The Buckingham decision illustrates how high the bar has been set.  Where the motion to dismiss alleged forgery, the motion failed for lack of pleading on one key element- the forger's intent to defraud.  The court did not leave open the possibility that this element could be filled in by future discovery. Instead, it upheld the trial court's outright denial of the motion.

The pendulum continues to swing away from the very liberal use of various procedural rules by those seeking to stop or delay the foreclosure process. The courthouse door still remains open to the truly aggrieved.

Friday, June 26, 2015

Maryland Court fees set to increase July 1, 2015

New Maryland Court Cost Schedules Effective July 1, 2015

Pursuant to Chapter 488 of the 2015 Laws of Maryland, effective July 1, 2015, the cost to file proceedings in Maryland courts will increase, making it just a bit more expensive to walk your civil case through the courthouse doors. Click here to find a complete schedule of fees on the official Maryland courts website.

The Pure Bill of Discovery- when the court makes you an offer that cannot be refused.

News stories about Government intrusions into your private spaces are all over the television and on-line media. But did you know that Maryland has a long, long tradition of permitting private parties to intrude on your privacy in their quest for potential evidence? It is called the "Pure Bill of Discovery," and is described in detail by the Maryland Court of Special Appeals in Johnson v. Franklin, decided May 29, 2015.
It is a mechanism for private litigants to find and preserve facts and data for use in a lawsuit. It doesn't matter that the claim may not be directed at you, it matters only that you have information needed by the person asserting that claim against others. And in this case, it also involved minor non-destructive testing of the property.

This case involved the forced lead paint testing of a home no longer owned by the target defendant, and no longer inhabited by the potential plaintiff--it was owned by a third-person with no attachment to the claim.  The property owner ignored requests to lead test, and then ignored formal discovery requests. But in the end, was ordered to give way and make the property available.

So, it's not just the Government that might force its way into your living spaces, I might pay you a visit, too!

What's on the stove for dinner?

Monday, June 15, 2015

Insurer wall of denial falls.

Commercial construction projects are dangerous, especially in cities. General contractors routinely require that subcontractors purchase insurance policies covering the general contractor and owner as "additional insureds." And so, if a subcontractor does damage that triggers a lawsuit naming the general or owner, it is the subcontractor's insurance that should hire defense counsel, and later indemnify the claim.

In a perfect world.

In Capital City Real Estate, LLC v. Certain Underwriters at Lloyds of London, reported June 10, 2015, the United States Court of Appeals for the Fourth Circuit reversed Maryland federal judge Marvin Garbis' trial court decision to excuse the insurance company from the duty to defend the general contractor.

Capital City acted as its own general contractor in the renovation of a brick building in D. C., sharing a common wall with its neighbor.  Capital City subcontracted with another company for masonry work on and around the common wall. As a result of the subcontractor's work the common brick wall collapsed.

Welcome to the not-so-perfect world.

57 Bryant Steet in 2013

Capital City had required the masonry contractor to purchase the usual insurance policy, with the usual "additional insured" endorsement. However, when Capital City was sued by the neighboring landowner the insurance company denied the claim and refused to pay for a lawyer to defend Capital City. The insurance company denied the claim because, it argued, the neighbor's lawsuit alleged that only Capital City was negligent. The insurance company believed that the "additional insured" endorsement only reached conduct of the mason subcontractor for which Capital City was "vicariously liable."

Yes, it made me smile, too. (you are smiling, right?)

Vicarious liability is a limit on general liability.  It would mean that the subcontractor could have triggered certain damage on the project for which the general contractor would have no responsibility. Imagine for a moment that your employee accidentally trips a customer in your store, and the customer breaks a leg. You, as the employer, are vicariously responsible for the employee's actions.  Now imagine the same employee goes home and trips someone in  his own house, and that person breaks a leg. As the employer, you are not vicariously responsible for that person's broken leg. On the construction project, the insurance company argued that the general contractor was only covered for a narrow range of things performed by the subcontractor.

And the trial court accepted the argument and granted the insurance company summary judgment (a motion granted before a trial, based on the evidence then known and the applicable law). But the U.S. Court of Appeals rejected the argument.

Insurance contracts are not construed against an insurance company unless they are ambiguous. And where the endorsement in this case did not contain the extreme limitation of language relied upon by the insurer, the appellate court ruled that most any action on the job site by the subcontractor resulting in a lawsuit would trigger coverage for the general contractor. And that means that the insurance company must pay for the general contractor's trial lawyer.

That is why you purchase insurance, and that is why it is useful to have your project documents reviewed by counsel before an accident. You can always count on the insurer to construe the contract language as narrowly as possible in order to limit or deny your coverage.

Thursday, June 11, 2015

Life is like a balloon...let go to rise up.

This video triggered discussion in our office about probable cause and proof of a crime. If the balloons are never recovered, what could be charged?  What could be proven "beyond a reasonable doubt?"  The cops firing of his weapon into the air was certainly unreasonable in this circumstance. In any event, this is a clever fellow. I'd call him a perp, or a suspect, but what the heck was attached to the balloon?

Friday, June 5, 2015

Bees on your boat?

We maritime lawyers know all about "reasonable care," and the duties owed by a boat operator to his passengers. And so I wrote this piece for a local boating e-magazine about a recent outing with a friend.

It's a stinger.

Thursday, June 4, 2015

Snakes in the house you just bought?

An Annapolis area couple is suing prior owners and real estate agents for failure to disclose a snake infestation.  Imagine watching a four foot rat snake climb the basement steps toward YOUR kitchen.  Gross.

The case raises interesting and common issues about what actual knowledge must be disclosed in the real estate transaction by the sellers and agents to the buyers.  And it raises questions about whether inspection contingencies or "as is" provisions allow the sellers and agents to keep their mouths shut about known snake infestations.

This house had a long and storied history. And at least one prior family had fled the house for the size and quantity of snakes. The television news video made me cringe!

What's the lesson here?  If you are buying property on or near the water, perhaps your inspection contingency should include some language pertaining to snakes and other water based vermin!

Thursday, May 14, 2015

Body cameras require change in Maryland consent laws.

Body cameras are here. And so Governor Hogan has signed into law a provision that modifies Maryland law governing consent.  Under old law, Maryland was a "two party consent" state. That meant every person involved in a conversation had to consent to recording.

It is a great way to terminate sales calls. When the caller tells you "this call is being recorded for quality assurance," simply respond "but I do not consent."  That will quickly end the call.

But imagine if a beat cop has to ask every citizen or suspect encountered " are under arrest...and may I please record your voice?" It is unworkable.

The new law specifically exempts police body camera recordings from the two party consent requirement. 

Sunday, April 19, 2015

Keep a sharp lookout for the Super Yachts on our Chesapeake Bay!

Watching big ships move up and down the Bay is a fun pastime for those of us who spend our time on the Bay fishing or sun bathing. Each large vessel you see is required, by law, to hire a licensed Chesapeake Bay Pilot. The cost of a Bay Pilot can be up to $268/hour, with a two hour minimum. But the cost is well worth the benefit of avoiding an accident. The largest commercial ships can draw 47 feet in a 50 foot channel. Without the assistance of a licensed Chesapeake Bay Pilot the largest vessels might ground, or dump materials that would harm the delicate balance of aquatic life in the Bay.

But the law required large pleasure boats to engage a Bay Pilot, too. Any movement within the navigable waters of the Bay required a Bay Pilot, including a shift from a berth to a fueling pier. And as you might imagine, this cost has kept many large pleasure boats away from the Chesapeake region. “These vessels spend tens of thousands of dollars alone on one fuel bill, plus money on provisioning, local entertainment, tourism and repairs,” said Jessie Bowling of Baltimore Marine Centers, which operates five marinas in the harbor, according to an April 16, 2015 article in the Baltimore Sun. Many speculated that the old law was an economic anchor to be cut away.

State Delegate Peter Hammen, of Baltimore’s 46th District, which covers the entire waterfront for the Port of Baltimore, recently introduced an emergency bill to exempt large pleasure boats from the Bay Pilot requirement. Governor Hogan signed the measure into law on Wednesday, April 15, 2015.

This means that certain large pleasure boats are no longer required to hire a Bay Pilot. Specifically, this exemption covers:

1.       Recreational vessels less than 200 feet long, and those with less than a 12 foot draft.
2.       If they possess a valid federally issued cruising license; and
3.       If they are not engaged in commercial service; and
4.       If they are not carrying passengers for hire.

A “recreational vessel” is defined by federal law and means a vessel being manufactured or operated primarily for pleasure or leased, rented, or chartered to another for the latter’s pleasure. “Commercial service” includes any type of trade or business involving the transportation of goods or individuals, except for service performed by a combatant vessel. “Passenger for hire” means a passenger for whom money is collected and paid to any person having an interest in the vessel. Federal cruising licenses exempt pleasure boats of certain countries from having to undergo formal entry and clearance procedures such as filing manifests and obtaining permits to proceed as well as from the payment of tonnage tax and entry and clearance fees at all but the first port of entry. These licenses can be obtained from the U.S. Customs and Border Protection Port Director at the first port of arrival in the United States. Cruising licenses are normally valid for up to a year.

Now, for those of use spending our time on boats well under the 200 foot limits of this exemption, what does all this mean?  Hopefully, it means more traffic on the Bay.  By lessening the cost to travel up the Chesapeake to Baltimore and Annapolis, the exemption may well generate additional gross revenues for those businesses servicing large vessels and their guests.

It also means we must be much more aware of our surroundings while out on the open water of the Bay. If the new law has its intended effect, we will be joined by larger vessels moving without the assistance of trained Bay Pilots. These larger vessels will be in close proximity as we move in and around the Bay’s larger harbors and shipping channels. We all remain responsible for our own safety, so keep a sharp lookout, and wave to our new visitors!

Saturday, April 4, 2015

Limited representation arrives in Maryland!

Here is the current reality in Maryland if you are served with a court summons and complaint:

  • You didn't choose to get sued, and now you are forced to defend yourself and also assert your own claims against the folks suing you.
  • Your money is tight, and legal fees are not part of your budget. And this is true whether you are an individual or owner of a corporate entity.
  • You want to hire a lawyer to help through critical parts of your case, like drafting a court document or appearing for a deposition, settlement conference or motion hearing, but the lawyers you interview only quote fees to take over your entire case until the end--and you can't afford it!
Maryland's current court rules simply do not permit a lawyer to enter his appearance in your case for only one limited event- that one deposition or one court hearing.  The rules require entry of a general appearance which commits the lawyer to remain in your case to the end, unless he formally withdraws under a sometimes complicated process. The current rules do not guarantee against a lawyer being forced to continue in the engagement despite not getting paid by you. There are many examples where judges have required lawyers to stay in a case despite requesting to withdraw for non-payment.

As a result, you currently cannot hire a lawyer to appear with you for one limited event.

This will change on July 1, 2015 when the current rule is amended to permit the entry of a limited appearance under certain circumstances.  The guts of the new rule say that
[a]n attorney, acting pursuant to an agreement with a client for limited representation that complies with Rule 1.2(c) of the Maryland Lawyers' Rules of Professional Conduct, may enter an appearance limited to participation in a discrete matter or judicial proceeding...
 This is a huge deal for you, the consumer of legal services.  You may now  hire a lawyer to appear in court for one event.

How does it work?  First, you will have a written fee agreement with the lawyer that describes the limited purpose of the engagement. By way of example, an agreement may say "attorney agrees to appear for and with client at the motion hearing now scheduled for Monday..." And make sure the agreement anticipates some preparation time by the lawyer in advance of the hearing. You might also include language that covers unanticipated rescheduling of a hearing because of weather or illness.

Second, you will sign a form that gets filed in the court case which describes the limited engagement. The rule describes exactly what must be in the form, and you will just check a box and sign at the bottom. This form gives notice to everyone else involved in the case that your lawyer will only appear for a limited purpose at one event.

Third, you must pay your lawyer the agreed fee!  This part of the lawyer/attorney relationship does not change. But with the agreed limitation on the scope of his engagement, you will pay less!

We do anticipate some issues that the new rules cannot address, including how notices of limited engagement will be handled by the court clerks. The new rule means that the court's computer systems will have to change to track limited entries of appearance.  Even now, the court's computer system will continue to mail court notices to lawyers who have formally been withdrawn from cases, and so we do not expect the problem to lessen with this new rule. In fact, limited engagement lawyers should expect to receive continued court notices of events even when the limited engagement has ended.

And our beloved judges are another wild card.  They do have the authority (or, they believe they have the authority) to hold lawyers in cases to avoid prejudice to clients and the justice system, even when they have not been paid and requested to withdraw. It is conceivable that even where a proper limited engagement has been entered that a lawyer could be forced to continue in a case.

But these risks are slight, and we applaud Maryland's attempt to make civil justice more accessible and affordable to a broader range of folks.  You will still have to pay legal fees to hire a good lawyer suited to your limited event,  and you should expect to pay for the time a lawyer needs to prepare for the event. But with this new rule you may avoid having to shell over a traditionally large retainer that anticipates a long engagement.

Sunday, March 22, 2015

Your adverse possession claim didn't die in your neighbors Estate.

For us property law geeks, the February 27,2015 Nimro v. Holden decision by the Maryland Court of Special Appeals is a fun and important decision. It marks a very important intersection between the law of adverse possession and the claim process in probate matters.

First, some background on the probate process:

  • When somebody dies an estate is created to administer all their "things."  This includes property rights, contract rights, ownership and debts.
  • The rules require that any claims against an estate must be made within a six-month limitation, or the claim is lost forever.
  • The six-month restriction on claims allows for the orderly and prompt administration of estates, and lets heirs inherit in a reasonable time.  Our country is built on the ability to efficiently move property and things from one generation to the next.
Next, some background on adverse possession:

  • It is a claim that takes ownership away from the title owner.
  • Among the requirements, the claimant must demonstrate adverse use for a 20 year period.
  • A court order must declare the transfer of ownership, if all the elements have been proven.
  • This involuntary transfer of ownership is meant to keep land in productive use.
This lawsuit highlighted an apparent gap in the law- what happens when someone dies, and an adverse possession claim has not yet been made against his land?  Is that claim lost if not raised in the probate proceedings within six months?

Mr. Nimro owned several lots overlooking the water. He claimed adverse use of the lots owned by the dead person's estate as an extended front yard that gave him unobstructed water views and beach access.  He did not make a claim in the estate, electing instead to sue in the Circuit Court for Anne Arundel County.

The Circuit Court judge sided with the estate, and ruled that the failure to make the adverse possession claim within the six-month limitation of the probate process extinguished the claim.  Mr. Nimro's claim was dismissed without a trial.

In this decision, the Maryland Court of Special Appeals got it right, and reversed the Circuit Court decision. In summary, the property rights created by the elements of an adverse possession action cannot be extinguished by the passing of the six-month probate limitation period (yes, that is a long sentence).

In the language of real property lawyers (and my inner property geek is now on full display), Maryland does not favor the creation of determinable and defeasible estates (fancy words that simply mean that an ownership interest can change based on future events). And to adopt the reasoning of the lower court would mean that a fully formed adverse possession claim would be subject to defeat if not brought prior to the death of the current legal title owner.  In essence, the court confirms what we practitioners have believed to be the better practice for years- an adverse possession claim need not be filed in a probate case.

This is consistent with other areas of established law, like the statute protecting mortgages and other recorded liens- a secured creditor does not lose a recorded lien if it doesn't file a probate claim within six months.

Well, that was fun. 

Saturday, March 21, 2015

Boat sunk? Don't let the insurer blame you!

You buy insurance for your boat in case of an accident.  If a casualty sinks your boat at the dock, you expect to get paid, right? Well, not if the insurance company can help it!

The case of Miele v. Certain Underwriters at Lloyd's of London is a good example of the tension between you and your insurance carrier in even the most ordinary of claims. It is not enough that you have made all your premium payments. The insurer will look for the quickest and easiest way to deny your claim. And unfortunately, many boat owners make it easy on the insurer by failing to keep up with basic maintenance.

Mr. Miele's 32' Luhrs sank while docked. Mr. Miele made claim on his policy, which insured the hull up to $92,000. And as is the custom, the insurer had the vessel examined by a marine surveyor. The surveyor's report to the insurance company concluded that water entered the boat through a rotten and degraded air conditioning cable.  Based on his report, the claim was denied because of this very common insurance policy language:

This insurance does not cover losses and or damages arising (whether incurred directly or indirectly) from . . .:
C. The cost of repairs or replacing any part of Your Boat by reason of wear and tear, gradual deterioration, osmosis, wet or dry rot, corrosion, weathering, marring, scratching, denting, vermin, pets or marine life, or electrolytic or galvanic action;

In the eyes of the insurance company, Miele had failed to properly maintain his boat. It concluded the sinking was caused by "reason of wear and tear." Miele was left with no boat, and no money. And so he sued in the federal court, alleging a breach of the insurance contract.

The insurer hired another expert to give additional opinions about why the vessel sank. And his reported opinion is a very good example of how far your insurer will go to deny your claim:
The [insurance company expert's] report contained a section labeled, "Conclusions," which discussed how the air conditioning hose had cracks and a fracture that had developed over a period of time. In that section, Wills wrote that his "inspections and testing . . . revealed a stepped, jagged profile where the fracture surface and the hose exterior intersect" and that "[t]his pattern [was] present as a result of numerous small parallel surface cracks in the hose cover joining together over some period of time to form a lengthy fracture front." Wills noted that he "did not determine the age of the hose," but that "[t]he surface cracks" in the hose "suggest the hose has been in service for a significant time and has reached the end of its service life."
The federal court concluded, without a trial, that the insurer had correctly denied the claim. And so Mr. Miele remained without a boat, and without any money.

It is important to carry insurance, but it is a complete waste of your money if you don't take care of your boat! When insurers are looking for any reason to deny your claim, including examination of "numerous small parallel surface cracks" in a rubber hose, you must head them off and perform regular maintenance.

Our office recently reviewed an insurance claim for rain water intrusion into the engine compartment of a trawler. The basis for the insurer's initial denial of coverage was the surveyor's observation that leaves and dirt appeared to obstruct the rain scuppers around a deck hatch. It did not matter to the insurance adjuster that weather data demonstrated extraordinary and torrential rains as the result of a storm just days before the intrusion.

If you regularly maintain and inspect your boat, you take away the insurer's easy denial. But even then, you may not receive a fair offer that pays all that the policy promises, and you will have to fight.

Sunday, February 22, 2015

No right to breach your District of Columbia contracts.

On February 12, 2015, the District of Columbia Court of Appeals confirmed that your contract does not have an implied "right to breach."

In Sundberg v. TTR Realty, a home buyer claimed that the seller and the real estate agent failed to share information about a neighboring construction project. Had they known about the project, right across the street, they would have broken their agreement and been subject to claims for damages by the seller.

The failure to share information came AFTER the contract of sale was signed by the buyer.  They thus could not argue that a misrepresentation had been made to induce making the contract.  And that was their downfall in this case.

Precisely because the contract had already been signed, the home buyers could not claim to have relied to their detriment on the absence of this information.

And more importantly, in a District of Columbia transaction, there is no "right to breach" your contract.  You either perform, or you don't. And if you fail to perform, you remain subject to whatever legal remedies are available to the other side.

Our court breathes life into Maryland tax liens.

On February 3, 2015, the Maryland Court of Special Appeals confirmed that tax liens do not die after 12 years.  You might die, but the tax lien on your land will survive you.

In State of Maryland  v. Shipe, a citizen argued that tax liens are good only for twelve years, and must be renewed like any other judgment lien if they are to extend beyond twelve years. The Comptroller argued that liens held by the State of Maryland might be enforced like ordinary judgment liens, but they are exempted from the renewal requirement. The court summarized its decision this way:
The State maintains that a recorded tax lien has the full force and effect of a judgment lien, and therefore, like other judgments held in favor of the State, it does not expire. Appellee disagrees, stating that a tax lien is not perpetual and that the General Assembly’s clear intent was to impose a temporal duration of no more than twelve years for a tax lien judgment subject to renewal. We agree with the State. 
So, there you have it-- a tax lien does not die.It will remain as an encumbrance on your land for longer than twelve years. The State of Maryland need not renew the lien like an ordinary judgment creditor.

There remain other means to attack a tax lien, but the appellate court has now eliminated the easiest.

Easments created by record plat.

Messy and poorly documented land transactions will land you in court. In the February 2, 2015 Peters v. Emerald Hills case, the Maryland Court of Special Appeals prefaced its analysis by observing '[w]e are not holding up what occurred in this case as a model for real estate conveyancing."

Music to a real estate litigation attorney's ears!

In this case, the homeowner's association sought to prevent access by a homeowner over a triangular lot owned by the association. The lot owners argued that their rights to get in and out of their lot came from an easement created in a plat created by the developer.

A plat is not a deed.  It is a drawing filed with the County, and it shows how a development will be laid out. The drawing can show roads, set-backs, wells, woods, driveways, sidewalks and roadways. But a drawing of a driveway does not mean there is a right to maintain that driveway unless there exists an easement.

In this case, the appellate court confirmed that an express access easement can be created on a plat so that it will bind all future owners of the land over which the easement is created.  And in this case, that included the land owned by the homeowner's association. The homeowner's association was thus not permitted to bar the lot owner's access over homeowner association's land.

The basic analysis is simple-- the creation of the easement on the plat must satisfy the Maryland Statute of Frauds, and it must satisfy certain technical requirements of Maryland's recording statutes.  If the plat meets these various criteria, it does not matter that that the easement is not recorded in the land records.


What a mess, indeed.  Easements are created normally through express statements in deeds, and in recorded documents with the word "easement" in the title. You and your transaction attorney must now carefully study the record plats to discern what may, or may not, constitute additional easements that will bind you or your neighbors.  Figure this out before paying good money for land and getting a future lawsuit as a bonus prize!

Tuesday, February 10, 2015

Tell him where to stick that subpoena!

The power of the subpoena is an enormous part of a lawyer's ability to pull together facts, document and witnesses. The subpoena is equally available to unrepresented parties, but in the hands of a lawyer steeped in knowledge of the rules and national compacts for compelling testimony across state lines the subpoena is a formidable weapon.

As Wilford Brimley's character from "Absence of Malice," an assistant united states attorney, said:
Tell you what we're gonna do. We're gonna sit right here and talk about. Now if you get tired of talking here, Mr. Marshal Elving Patrick there will hand you one of them there subpoenas he's got stuck down in his pocket and we'll go downstairs and talk in front of the grand jury...

On February 2, 2015 Maryland's highest court disbarred a lawyer who was found to have repeatedly abused his position as an officer of the court by improperly serving subpoenas and deposition notices across state lines, among other things, and filing frivolous motions in courts accusing his targets of not complying with those subpoenas.

In summary, the Court found that over a period of several years, in dozens of separate cases, this lawyer had ignored well known rules about issuing subpoenas to witnesses.  The Court also found that he often filed motions in court to compel actions by witnesses, and for sanctions upon their failures to act, that were not factually true.

He was a steamroller and a bully. He took shortcuts, and he absolutely did not respect the rights of the witnesses.

As a witness in my case, for trial or deposition, you deserve my respect. Because without you, the witness, I cannot do my job.  Without the witness to testify about "who, what, when, where and how," I have little or nothing to present to the court or the jury.

You, the witness, are the foundation of our adversarial system. An English commentator describes the role of the witness this way:

Witness is an important constituent of the administration of justice. By giving evidence linking to the charge of the offence the witness performs a sacred duty of assisting the court to discover the truth. This is the reason why before giving evidence he/she either takes an oath in the name of God or makes a solemn affirmation that he/she will speak the truth, the whole truth and nothing but the truth. The witness has no risk in the decision of the criminal court as he is neither the accused nor the victim. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence. The witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to travel all the way to the court to give evidence. The witness should therefore be treated with great respect and consideration as a guest of honour. Unfortunately, all these are seen not to be happening in the courts.

There are local rules that dictate how witnesses must be noticed and scheduled when they live in Maryland.  For example, a witness living in Garrett County cannot be compelled to travel to Kent County on the Eastern Shore to give testimony- it's just not fair to the witness, for many reasons. It is a very common question asked of our lawyers, and we are always surprised that so many other lawyers just get it wrong.  And when they do get it wrong, it is the witness-the very person providing the evidence essential to our job- who suffers the inconvenience and cost.

And if the witness is requested to bring documents to deposition, he or she must be given at least thirty (30) days to respond. Again, its only fair to treat witnesses as well as a party to the case.

But, “the subpoena powers of the State of Maryland stop at the state line.” A Maryland lawyer cannot expect to mail a subpoena from Maryland to a witness in another state and expect obedience to that subpoena.  But it happens often.

There is an Interstate Deposition and Discovery Act adopted in most States. Maryland has adopted its version of the Act, which describes how the subpoena of one state can be enforced in another state. It requires work, but when lawyers are reaching out to non-parties to draft them into the case, shouldn't it require a bit of work to assure it's done properly and with as little inconvenience to the witness as possible?

That's a rhetorical question-- please don't answer--the only proper response is "yes."

Did you receive a summons or subpoena? You have rights. Mostly you have the right to be treated fairly. And you can file a motion in court to make sure the lawyer who issued you that summons or subpoena will treat you fairly.

We, the people, need you, the witness.

Friday, January 16, 2015

Visit our improved website!

Our website is upgraded and loaded with useful information about our practice, and how we can help solve your problems! Visit anytime.

Tuesday, January 6, 2015

Extreme squatting comes to Maryland.

Last year we shared the story out of California involving lawyers complicit in a scheme to push false adverse possession cases through the courts. We concluded that such a scheme would be very difficult to pursue in Maryland because of very different standards for taking property under the law.

But that doesn't rule out the straight "squatter" who takes without permission.

On January 2, 2015, the Daily Record and an ABC News affiliate reported that a man was charged with moving into a home he did not own...with his entire family! He allegedly introduced himself to the neighbors, and was unpacking the van when the true owner arrived to find the invaders in the driveway.

Editor’s Note: This story was updated on Jan. 24, 2015, to remove the suspect’s name after the suspect contacted us to say the district court charges were dropped. We confirmed in the court's public database that the charges were subject to a "nolle prosqui." This means the prosecutor elected not to pursue the case, but it remains subject to re-indictment. Ramon Korionoff, public affairs officer for the Montgomery County State’s Attorney office, reported to other news outlets that the investigation is ongoing. The suspect also asserted to us that the video of the original television news story had been dropped from the television news affiliate's website, and he requested that we remove the embedded video from this blog.  It was only as a courtesy to him that we have removed the embedded video from this story. After all, we also represent criminal defendants and believe that everyone deserves a second chance! But we do not control, nor can we control that the video may remain resident and publicly available on the television news outlet's server.

The house had been on the market for over a year. The lesson behind the story is that you must check on your property regularly!! And talk to your neighbors--there is no reason for the alleged squatter to have fooled the neighbors, if that is what happened. It is easy to to knock on your neighbor's door to say "the house will be empty, call me if you see anyone try to enter."

In our real estate litigation practice, we've seen a lot of real estate scams (forged deeds, deeds executed after death, the impersonating of owners at settlement, producing fake death certificates, fake powers of attorney, and false corporate filings to reinvigorate defunct entities), but this story describes perhaps the most brazen and ill conceived that we have seen reported in the news.