Maryland's Court of Appeals adopts tech changes to make justice more accessible.

This week, Maryland's highest court, which makes the rules dictating how litigation is conducted in all of our courts, adopted rules making access to justice a bit easier.

Spurred by the inconvenience visited by COVID-19, where mandatory closures prevent many court room activities, the Court approved the following;

• Video conferencing in the District Courts- A visit to the District Court is often akin to a visit to the MVA. The waits are long, the rooms crowded, and you are often told to return, again, on a later day. Soon, many conferences and hearings will be held by video participation.  What remains to be worked out is whether persons without internet or a computer may still participate in person, or whether this innovation has created another practical impediment to court access for some.
  
• Electronic filing for appeals- Three of Maryland's largest jurisdictions are Baltimore City, Prince George's and Montgomery Counties. They are not yet set up for electronic filing. Appeals to the courts in Annapolis are thus not done electronically. That has been changed.  While filings in the Circuit Courts must still be mailed or hand-delivered, appellate filings to the courts in Annapolis will be via the on-line portal.  This is a modest improvement, but a step toward uniform efficiency.
  
• Remote video depositions- The current rules of procedure do not contemplate remote participation via video. Taping is routine, but it still requires gathering in one location. The conduct of remote discovery can add efficiencies to litigation, while also adding complexities that drive up costs for litigants. It also creates opportunity for shenanigans, where remote deponents may be secretly coached or manipulated by off-camera persons or devices. 

We will help you manage these innovations, and move your cases to the swiftest conclusion our system will allow. Changes must be made, and they will breed additional modifications in how we conduct your cases. We will adapt and grow with them. As the CEO of Uber reminds us, "ultimately, progress and innovation win."

Pay when paid, or pay if paid? What's in your contract?

General contractors rely on others to complete their work on behalf of an owner, including masons, electricians, iron workers and countless suppliers of wood, steel and equipment. Payment by an owner to the general contractor then cascades like a waterfall to all who have put labor and materials into the project.

Except when it doesn't.

General contractors routinely include one of two types of payment provisions in contracts with sub-contractors and suppliers. The first is commonly called "pay-when-paid," and the second is called "pay-if-paid." Both clauses alter the traditional situation where a sub-contractor or materialman is entitled to immediate payment for delivery of work or product.

On May 24, 2018 Maryland's highest appellate court decided Young Electrical Contractors v. Dustin Construction, which provides an excellent summary of the difference between the two provisions. 

During the latter half of the twentieth century, general contractors began to include contingent payment provisions in their subcontracts. Although there apparently was no standard language, such a clause would typically provide that the general contractor was not obligated to pay the subcontractor until some specified number of days after the general contractor received payment under the prime contract from the owner of the project. Thus, for example, a window distributor that entered into a subcontract to supply windows for a project would not necessarily receive payment upon delivery of the windows, but would be required to await payment of the general contractor by the owner of the project

As is explained by the Court of Appeals, this "pay-when-paid" provision does not excuse the obligation to pay a sub-contractor, only the timing of the payment. And so a sub-contractor that has completed all its contract requirements might have to wait some time to receive payment. In the real world, extended delays put real companies and real employees out of work. This type of provision forces sub-contractors and suppliers to finance a project, to a certain extent.

A derivation of this clause says the sub-contractor or supplier will get paid if, and only if, the owner pays the general contractor. The "pay-if-paid" clause is a draconian provision (Draco was an ancient Greek politician who advocated that the most minor of infractions warranted the harshest punishment, usually death).  A small contractor that does a superlative job can go out of business if payment disputes among the general contractor and the owner do not resolve. It is not hard to imagine smaller  or marginally capitalized contractor having to withhold payroll for employees, miss loan payments, or simply go fishing.

Where our Nation's economic recovery is thin, it is even more important for a sub-contractor to avoid the uncertainty of "pay-if-paid." Some jobs are simply not worth that risk.

Do you know what's in your contract documents?

Contracts shortening Maryland's Statute of Limitations are not always enforceable.

You are free to make a contract that cuts short Maryland's Statute of Limitations. But it will not be automatically enforced against you.

Most lawsuits for breach of contract and negligence must be filed in court within three years of a breach. There are many situations where the three year period can be delayed or temporarily stopped, but that is a topic for another article. This piece will focus on contract language that cuts a three year limitation period to something shorter, usually one year.

Maryland will enforce contracts that cut back on your right to sue, from three years to something shorter. But a recent opinion from the highest appellate court makes clear that this contract term will not always be blindly enforced.

In Ceccone v. Carroll Home Services the parties litigated this issue. A home repair company sought to block claims for damage to the homeowner's furnace caused by its neglect. The homeowner made a claim within one year of the breakage, but failed to file the lawsuit within that same one year period. The service company defended by simply asserting "you're too late."

The trial court and the intermediate appellate court applied the long recognized Maryland law and enforced the shortened limitations as written in the contract. A judgment in favor of the home service company, which kicked the claim out of court, was affirmed. It took the homeowner's second level of appeal, to the Maryland Court of Appeals, to get the correct result.

The highest Maryland court instructed that:

A provision of a contract that purports to shorten this period of limitations will be enforced in Maryland only if (1) there is no controlling statute to the contrary; (2) the provision is not the result of fraud, duress, misrepresentation, or the like; and (3) the provision is reasonable. In assessing the reasonableness of such a provision, the court should make an explicit determination whether the provision is reasonable, considering a variety of factors, including the subject matter of the agreement, the degree to which the provision shortens the applicable period of limitations, the relative bargaining position of the parties, and whether the shortened period of limitations is one-sided or applies equally to the parties to the agreement. 

In the Ceccone case, the trial court did not weigh the three factors-- the judge just applied the contract language. The intermediate appellate court did a similar "rubber stamp" analysis to affirm the trial court. It did not matter that the contract only limited the homeowner to one year within which to file a lawsuit, while reserving to the service company all rights under the law. 

The Court of Appeals vacated the judgment in favor of the service company and sent the case back to the trial level for witness testimony and further consideration.  The new trial date shown in the on-line docket is November 2, 2017, in the Circuit Court for Anne Arundel County.

The surprising thing about the case is that the homeowners are representing themselves- only the service company has a lawyer--and the homeowners won the appeal after losing in two lower level courts. And even more surprising is that the case involves a dispute worth less than $4,000 and which has surely cost the service company many times more than the homeowner is claiming.

Operating without a lawyer, Mr. and Mrs. Ceccone obtained a reported opinion that will become part of Maryland's body of jurisprudence. That is more than many, many lawyers can claim!

As the Japanese proverb goes- "fall down seven times, but stand up eight." Kudos to Mr. and Mrs. Ceccone! 

Ian Valkenet joins the District of Columbia Bar

Ian Valkenet is now sworn to handle your cases in the District of Columbia.  This includes the Superior Court, where civil and criminal matters are tried before juries and judges, and the Court of Appeals.

Ian has been practicing law in the trial and appellate courts of Maryland, and in the federal trial and appellate courts for two years.

The District of Columbia Court of Appeals

Your broken leg is now the Trustee's broken leg. Feel better?

File for bankruptcy court protection and you give up all of your potential claims, including claims for personal injury, to the bankruptcy trustee.  The District of Columbia Court of Appeals July 3, 2014 decision in Atkins v. 4940 Wisconsin, LLC forcefully makes the point.

Financial strain pushes well intentioned and honest folks into bankruptcy.  It is an honorable tool for re-establishing your financial life, and wiping away crushing debt.  What is often forgotten, though, is the debtor's duty to disclose not just all claims he may have against others, but any possible and contingent claims.  At the moment you file for bankruptcy protection by delivering your petition to the court, every right of recovery you have becomes "property of the estate."

And it is the court appointed bankruptcy trustee, often a lawyer, who has absolute control over the claim--not you.

Mr. Atkins tried to game the system.  His bankruptcy petition conveniently omitted reference to his potential slip and fall case. He later sued to recover money, and the defendant he was suing argued it was not Mr. Atkins' claim to make, anymore.

The court of appeals confirmed that Mr. Atkins could not bring the claim.  His failure to list the personal injury claim in his bankruptcy petition amounted to a statement that he had no such claim. And since the bankruptcy petition and schedules were submitted under oath, the statement that he had no such claims was under the penalties of perjury. His later claim in a separate lawsuit was thus inconsistent with his prior disclosures to the bankruptcy court.

You can't swear to the absence of a claim in your bankruptcy petition and schedules, and later assert a claim in a lawsuit to recover money.  The court will hold that you are not allowed to bring the claim. When you are prohibited from asserting a claim because you took an inconsistent position in an earlier case, it is called "judicial estoppel."

We most often see this issue arise in cases where parties have prepared legal papers without the assistance of counsel.  As we have suggested in a prior post, do-it-yourself law is risky business.

Maryland unleashes Harry the Hippo on children.

We all share concern for the protection of our children. As an ancillary proposition, Maryland law presumes that parents are solely authorized to make all significant decisions on behalf of a minor child, including those addressing the child's physical safety and well being.

In a recent case, Maryland's highest court made clear that primary parental responsibility does not shift when you drop the kids off in the play room of a big-box retailer while you peruse the sales floor. The retailer is not a babysitter, does not sit in loco parentis, and has little or no accountability for injury to your child that occurs in that playroom. 

The Maryland Court of Appeals decided BJ's Wholesale Club, Inc. V. Rosen last November, in a case that has received little public attention, but it has unleashed Harry the Hippo. He is not a real animal, but an approximately 38 inch tall plastic toy intended for children to climb over, around and through.

Mr. Rosen signed three of his minor children up to use the unsupervised play area at the BJ's store, like hundreds of other parents before and after him.  Like most of us, he relished the idea of non-distracted shopping while the kids noisely exhausted themselves on the slide, in the plastic ball pit....and on Harry the Hippo.

Harry the Hippo

For several months, the Rosen family kids used the the play room without incident.  Presumably, the trade off between delegated parental responsibility and peaceful shopping worked just fine for the Rosens.  That is, until five year old Ephraim fell off Harry the Hippo and cracked his skull.

Very literally, the boy's head had to be cut open in order to relieve the pressure created by swelling.  Ephraim had pitched himself over Harry the Hippo and landed on the concrete floor, separated only by a thin carpet that did not fully absorb the impact.

Ephraim's ordeal is detailed in the circuit court complaint filed by his parents against BJ's:

The play area consisted of a number of different amusement items for children. The entire play area is covered by carpet. In most of the play area, the carpet covers a thick layer of resilient foam padding. In other areas, the carpet was adhered directly to a concrete floor. There were no markings to delineate where the floor was padded and where it was not.

On October 22, 2006, Beily Rosen went shopping at BJ’s with Ephraim. She left Ephraim in the play area.

While in the play area, Ephraim was playing on an elevated plastic play apparatus known as Harry the Hippo. 

The Hippo was approximately 38" high at its peak and varied in height along the rest of the structure. 

The Hippo was placed in such a manner that a child who fell forward would land directly on top of the concrete floor covered by only a thin layer of carpet. 

Ephraim fell off the front of the structure landing head first directly on the concrete floor covered only by a thin layer of carpet. 

Ephraim was crying profusely after the fall. His mother was notified to retrieve Ephraim from the play area. 

That day Ephraim was taken to Sinai Hospital in Baltimore, Maryland. A CT scan of his head revealed that Ephraim had suffered a large acute epidural hematoma in the right temporal, and parietal convexity with extensive mass effect.  

 Ephraim was transferred to Johns Hopkins in Baltimore, Maryland. There he underwent an emergent, right frontal temporal parietal craniectomy for evacuation of the epidural hematoma. The surgery saved Ephraim’s life.

In defense of the lawsuit, BJ's waived a piece of paper- the waiver of liability signed by Ephraim's father 15 months before the accident.  You have seen language just like this, although you likely did not ever read it or appreciate it's operation. Go ahead, try to read it out loud, with a single breath.  You can't, no matter how fast you read:

I, individually and on behalf of my child, do hereby waive, release and forever discharge BJ’s Wholesale Club, Inc.; its subsidiaries and affiliates and their respective agents, employees, officers, directors, shareholders, successors and assigns from any and all claims and causes of action of any kind or nature which are in any way related, directly or indirectly, to the use of Play Center which I may have or that hereafter may accrue including any such claims or causes of action caused in whole or in part by the negligence of BJ’s Wholesale Club, Inc., its subsidiaries and affiliates, and their respective agents,employees, officers, directors, successors and assigns. I understand that my child is here at my own risk and expense and agree that neither I nor my child will bring any claim or cause of action of any kind or nature against BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, successors and assigns.

The Maryland Court of Appeals cited pages of examples in Maryland law where parents are expressly authorized to make binding decisions for their children, and contrasted them to instances where the State of Maryland may exercise the public interest and step in to protect children on its own account. It held that parents retain the authority to make contracts on behalf of their minor kids.

And this parental authority includes binding their kids to the limitation of liability form signed by the Rosens as a condition of letting Ephraim to ride the wild hippo.

And here is the rub: Parents sign dozens of these waivers a year for their kids.  Imagine the event, program or exercise class you have ever attended with your child that DID NOT include a waiver form. In the crush of time, you probably didn't give it much thought, too.  And you likely did not inspect the facility thoroughly before you left your child for an hour or two of "supervised" play, right? And what about those times when your friend delegates authority to you for a play date at the local ball pit or skate park?  Do you sign away liability for their kids, too?

Should you?  Where must trust end?  Not easy decisions.  But know this- sign the waiver of liability form and responsibility for injury to your child arising from the potential hippo attack is all yours.

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.

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.

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.

Court bites dog?

George Carlin observed that "dogs lead a nice life, you never see a dog with a wristwatch." But Maryland's Pitbull population is on the clock, now, after the highest court branded it an "inherently dangerous breed" and thus triggered a series of commercial decisions that just may operate to bar Pitbulls from many rental or owner-occupied communities.

It's right here, in Tracey v. Soslesky, an April 26, 2012 decision from Maryland's highest court, the Court of Appeals. The gory facts and dog bite stats are there, going back to 1916. it's worth a read.

Until now, Maryland was a "one bite" state.  A dog (the individual pooch, and not the entire breed) was presumed to be warm and cuddly until it's actions demonstrated otherwise.  It was the classic "don't bite, don't tell" policy. And after one act of aggression toward humans, the dog earned a label, and it's owner became fully noticed of the animal's violent tendancy. From that point, the owner bears liability for the consequences of that dog's future violent conduct, be it a nip on the butt of the a neighborhood boy on a bike (I got skinned knees, and a new pair of pants), four holes in the back of the thigh (but I still love my neighbor, and he voluntarily put the dog down since he'd already been sued the prior year by a jogger who was chewed by the dog's mate--the man didn't want to hinder his dog's zest for life with training, leashes or muzzles--and now it's dead), or the severed sword hand of a rival knight from House Lannister (OK, that's a fictional Dire Wolf from Game of Thrones).
With this decision, the Pitbull (the entire breed, including half-breeds, and not individual pups) has been singled out as prone to bite. Always. No questions. No exceptions. Expect it. Plan for it. Better yet, buy a pet rock.
And please note that I make reference to the animal as "it."  I do enjoy canines- I've owned them, loved them, and been bowled over, slobbered upon and licked within an inch of my life by them--but I don't imbue them with humanity, no more than I would make reference to my dining room chairs as "him" and "her," and they have dinner with me, every night. I say this because much of the public debate surrounding this decision is unnecessarily ratcheted up several notches, well into the "shrill" range (you need a dog's sense of hearing to discern some of it),  because the domesticated animal is deemed "family" by so many. My dear wife has even referred to us as ourown dog/cat's "parents," which is always a nice seque into a lively discussion at my house--usually with the dear animal on my lap or reclining at my feet. They can keep me warm, but I'm not sending them to college. And most everything that can scratch and claw has been pulled or trimmed off of them, and any and all baby making equipment has been neutralized.  (Wow, perhaps we should treat our kids more like pets? hmmmm.)
On one law listserve, the on-line debate generated over 50 long, strident, and sometimes nasty posts on the subject of "dog prejudice" in a two hour period. One post captures the core issue, and it's not about prejudice against a species, or a breed, or even a preference not to lose a limb while jogging in the park.  The core issue is the civility or lack of civility of the property owner.  Attorney Michael Gross, of Silver Spring put it best, and I am pleased to share his well considered words, here:

I do not suggest that anyone should lack the liberty to own any particular breed of dog; provided that they raise it in an appropriate manner.  What I was more interested in is the state of mind of the owner.  I am wondering whether owning such an animal reflects a sort of disrespect of others, or as it may be put, bad manners.

Are we becoming an uncivilized civilization?  At the risk of setting myself up as an example; when I was growing up it became clear that I should never cut my lawn on the weekend before noon, lest I impose on my neighbors’ peace and quiet.  I should not turn the volume on my car stereo up to maximum and roll down my windows in stopped traffic.  I should never take the last of any item on the store shelf if I didn't really need it.  Turning more towards the legal, I was trained never to serve discovery for the major purpose of being burdensome, nor engage in motions practice for the same purpose. (The point here is not to quibble over the permissible extent of discovery or motions, let's move on.)It would seem to me that owning a dog which is, rightfully or wrongfully, perceived as a danger by others, is simply bad manners.  (Those in fear of personal injury by intruders in the night get a pass here.)  Are we as a society so concerned about rights, that we have lost touch with an ethic that suggests we take the interests of others into account in exercising those rights?

I read this opinion dispassionately, as a property owner. Or, as someone who must advise other property owners on the risk of owning or maintaining a particular bit of property in their house, apartment, condo, business, or public place.  It also informs me that there are certain places I will not bike, walk or jog, or let a small child roam.
If the decision stands (and there is a move to overturn the decision by legislative fiat- imagine if the same vigor was directed at decisions adverse to civil rights, defendant's rights, and other decisions that restrict or denigrate the quality of human life!), landlords may further restrict their pet policies in residential and commercial leases.  And if the landlords won't, they may be compelled by their general liability carriers. The same goes for homeowner and condo associations, and commercial landlords. 
With this decision, what's to stop any forward thinking town in Maryland from just outlawing Pitbulls within their corporate limits for the protection of it's residents? Is that toothy-muscle-on-a-leash that is straining to take in the delicious aroma of your toddler-in-a-carriage  any less dangerous than the cancerous second hand smoke our government has largely outlawed? Why not! According to the Court of Appeals, we are all on notice. The Pitbull is prone to bite. Always. No questions. No exceptions. Expect it. Plan for it.
UPDATE-MAY 14, 2012- House Bill 1808 was introduced to make dog bite liability in Maryland conditioned on whether the person being sued was "responsible" for exercising control over the canine property, and was negligent in exercising that control. The Bill was introduced during the Special Session intended to address the budget.  It is very unlikely that this Bill will pass through the committee process during the Special Session. It may well arise, again, when the Legislature reconvenes.

The Bill is sponsored by Delegates Cardin, Bromwell, Carr, Feldman, Frush, Guzzone, Haddaway-Riccio, Hogan, Kipke, Luedtke, A. Miller, Morhaim, Reznik, Stocksdale and F. Turner.  Have an opinion?  Let'em know!  Perhaps bark once for "yea," and twice for "nay."

I don't think the language of this brief provision will effectively overturn the Court of Appeals case, since it does not address the judicial finding that Pitbulls are "inherently dangerous."  Calling the standard of care "negligence," alone, won't lessen the standard of care, much, if at all.
Woof, woof.
Post Script June 15, 2012:  This continued reporting on Pit Bull attacks is sure to keep the kettle boiling.  Here's today's "death of a child" report from California--3 Pitbulls + 1 young child= death.
UPDATE- July 15, 2012-The Court's ruling has been stayed, pending further decision on a motion to reconsider, filed in the Court of Appeals. The ABAJournal has a nice summary of the current status, here. So, buy Fido dog food for a few more weeks, at least.

Update- August 6, 2012- The American Bar Association House of Delegates has authorized a resolution urging passage of "breed neutral" laws concerning Pit Bulls. Here is a summary and link to the resolution. Of particular interestis citation to the Ohio legislature, and it's repeal of a law that was  directed at Pit Bulls, as a distinct threat.

Don't skimp on your affidavits if you expect summary judgment

I am just back from a wonderful vacation in the Berkshires of Massachusetts, catching up on recent decisions.  On September 7, 2011 a Florida appeal out of Palm Beach was widely reported because it involved a failed foreclosure. The headlines trumpet the "further complications" for other pending foreclosure cases in Florida.  The various blogs and listserves trumpet this as yet another smack down for lenders and servicers.  *yawn*

This case is an ordinary, plain vanilla, and rudimentary decision about application of the rules of evidence. It has little to say about the validity of mortgages, standing to foreclose, or "robo-signing."  It is simply another admonition to trial lawyers (regardless of the area of concentration or specialty) to adhere to the rules of evidence for the authentication of business records and the data they contain when seeking judgment. Period.

But first, please enjoy the view I had from my relative's boat, last week, and then I'll explain a bit about the court opinion:

Gary Glarum's lender, LaSalle Bank, sued to foreclose on a defaulted mortgage loan. Florida conducts its foreclosures a bit differently than here, in Maryland, and requires a judgment of foreclosure. The lender filed a motion for summary judgment, supported by the affidavit of a "specialist" employed by the lender's loan servicer (a different entity, as is usual). Judgment in favor of the lender for the full amount of the claimed indebtedness was granted on the strength of the facts presented in the "specialist's" affidavit, and Mr. Glarum appealed.  The appellate court reversed, in a reported opinion.

The Florida appellate court held that the affidavit of the "specialist" was bad evidence.  It was hearsay, based on facts contained in a computer database.  Now, ordinarily, a witness can rely on data kept in the ordinary course of business.  But in this case, the data had been migrated from another loan servicer's system, had been entered by others, and was thus not considered the business record of this particular entity employing the witness.  I think the most troubling aspect for the court was the lack of any verification by the succeeding loan servicer.

In prior posting on this site, I've stated the opinion that a court does not sit to cure deficiencies in my evidence. This case underscores this simple point.  An affidavit that simply regurgitates data from a screen shot will not convert hearsay into an admissible business record.  The Florida decision quickly runs through the elements of its evidence rule on business records.  It is similar to Maryland's evidence rule.

The crux of the matter is trial counsel's willingness to push the lender/client to conduct a proper investigation into the calculation of the debt or element of damage, and to then draft a proper affidavit.  In the Florida case, the "specialist" was deposed, giving trial counsel another shot to prepare the witness so that the underlying data could be explained.

This is a simple point, and one that is lost on most lenders and servicers who delegate trial preparation to very low level employees, or worse, to designated corporate witnesses who fly around the country to recite whatever counsel puts in their hands a few hours before trial.  This annoys me, endlessly.  But did I mention that I am just back from a wonderful vacation in the Berkshires?  I thus refuse to be annoyed, and choose, instead, to reflect on last weeks more tranquil moments, as the ice slowly melted in my glass....see you in court!

And now we wait for the Maryland Court of Appeals to do its work.

On June 7, 2011, I was privileged to argue questions of law certified from the U.S. Bankruptcy Court before the Maryland Court of Appeals.  At issue is the effect of Maryland's curative statutes, and how it operates to bar the bankruptcy trustee's 130+ lien avoidance actions, and oppositions to lender motions for relief from the automatic stay.

The court's website has a webcast of the oral arguments, if you are so inclined to burn your billable time over a cup of coffee. The case is captioned Guttman v. Wells Fargo, Misc. #20.  I believe the link is at the top of the page.

This issue will impact the title industry in a significant way.  The 35 cases in this office, alone, implicate over $7 Million in secured liens that could be rendered unsecured.

Stay tuned.

The purchaser out of foreclosure is not hogtied by an appeal by the borrower if no bond posted.

The new appellate decisions are a treasure trove of obvious answers to frequently asked questions. Among them is Mirjafari v. Cohn, reported February 16, 2010, No. 38. It confirms that a purchaser out of foreclosure, if bona fide at the time of the sale, is free to devise the foreclosued property if the borrowers take an appeal but fail to obtain an order staying the effect of the judgment overruling the borrower's exceptions.

This question has come to me three times over the last month, by three different insurance adjusters. It's nice to finally have a black letter case declaring the obvious proposition. My partner and I refer to this as a "the sky is blue" propositions-- the legal maxim is obvious, but there doesn't seem to be a reported decision on the issue.

Of course, if the court holds the foreclosure purchaser is not bona fide, he takes title subject to the outcome of the appeal. It is the finding of bona fide status that is key.

There is still no zoning estoppel in Maryland.

The dissent captures the essence of this reported opinion. Judge Harrell declares that "[t]he Court of Appeals again wimps-out on adopting the doctrine of zoning estoppel, the contours of which are well established in a number of our sister states."

Of course, I invite you to check out the official group photo of this court. No wimps here, no sir.

Is that Deed of Trust fully and properly executed?

Do you have a claim or case involving a deed of trust with missing or mistakenly executed affidavits of consideration and disbursement? This is all the rage among several bankruptcy trustees, who have been filing adversary cases seeking to invalidate recorded liens. The black letter law says that this type of defect is "self-cured" if a party to the instrument fails to make a formal challenge to the documenet within six months.

We have at least six of these cases in the office. All parties in these cases are anxiously awaiting the Maryland Court of Appeals decision in Ameriquest Mortgage v. Paramount, #52, argued on January 7, 2010. It will decide whether a lienholder may challenge an earlier recorded deed of trust on the basis of an allegedly defective affidavit of consideration and disbursement where that challange was made a full eighteen (18) months after the instrument was recorded.

We have stayed some of the cases, by agreement of the parties, as we await this important court decision.