On Dec 10, 7:11 am, verivin <veri...@yahoo.com> wrote:
> the buyer is having trouble finding financing (he's a
> developer and the housing market here in Michigan is very bad) and
> has had us extend the agreement a couple times.
I don't know MI law. The following are just general comments for discussion.
You realize of course that you were not obligated to extend the agreement in the first instance, since "time is of the essence" in a contract for sale of realty and failute to fulfill the contract in the time allotted amounts to a breach by the buyer, permitting you to keep the good faith deposit and move on to the next prospective buyer. But once you have agreed to an extension, that new agreement, like the original one, is a binding contract. So, you have to give this buyer the new amount of time you have already agreed to extend, but don't you think enough is enough? It's time to tell him he has to fish or cut bait, and that there will be no further extensions.
> Now a couple other
> potential buyers have emerged who are offering more than the first
> purchaser and claim to have private financing to complete the deal
> quickly.
You are lucky, then, in this declining market for sellers.
> We understand that we cannot sell the property to anyone
> else while the current deal is running, but we would like to lock in
> the other offers as soon as possible.
You can't enter a firm contract with any of them, but they _can_ offer a contingent contract, which will become effective and binding only if the first deal falls thru. It's done all the time.
You can just keep the offers in hand, and accept one of them _after_ the first buyer fails to settle up by the current deadline. Try to have them be "firm offers" which the prospective purchasers promise to keep open for a certain amount of time, so they each cannot be withdrawn until after their own internal deadline and you have the time you need to decide whether to accept it or not..
Do you have a broker or attorney helping you with this? It would surely be a good idea, since you're getting into areas you apparently know nothing about. A knowledgeable seller may be able to handle his own sale with no problems, but a newbie at the real estate biz would be a fool to do so IMO.
> My question is: is it ok to
> receive additional offers to purchase (in writing) about a month
> before the current deal is due to expire?
You can receive them any time you want.
> (If the new offers don't
> turn out to be concrete, we would likely extend the current offer
> again.)
Huh? That sentence puzzles me. The new offers are "concrete" if they are in writing (a legal requirement) and (customarily) if they are accompanied by a good faith deposit which will be forfeit if that buyer doesn't come thru. If you say you have several new offers already, they are either good offers or not offers at all, depending on whether they meet those requirements, and you should be able to tell now. The only way you can accept one of them is to let the currently binding contract expire by it own terms, so I frankly don't see how you could "extend" the existing contract again "if the new offers don't turn out." OTOH you could, informally, tell the current buyer that if he's still interested, he too is welcome to submit a new contingent contract offer after you have accepted one of the other offers after his first offer expires. There is no prohibition against giving him a second chance, but that would be a completely new contract, not an extension of the old one. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Tuesday, January 15, 2013
Licenses through corporations
On Dec 8, 8:48 am, jcug...@aol.com wrote:
> I own 100% stock in several corporations. Those corporations have
> state-issued privildeged licenses for their various business
> activities.
You don't say what state you're in, or what "privilege" you're talking about. For purposes of discussion I will assume you are talking about liquor licenses or lottery licenses or something like that.
> The licenses are in the corporation's name (Abc, Inc.) NOT
> my personal name.
What does your state's licensing law say about whether that makes any difference? In some states, such as MD, a person may own _or_ have a controlling interest in only a limited number of businesses that hold liquor licenses -- IIRC the number is 3. Any attempts to get around the restriction by setting up shell corporations (owned 100%, or even 51%) by the same principal, are frowned upon.
> Recently I applied for a state-issued priveledged license for myself
> personally (not on behalf of any corporation or business). The
> license application asked to provide a list of any priveledged
> licenses I have.
What was the EXACT language of the question? Can't answer you without knowing that.
People make fun of Bill for getting caught with his pants down, but it really DOES depend on what "is" is.
> I listed the ones I hold personally (such as real estate broker) but I did not
> list the licenses the corporations (that I own common stock in) hold.
I assume you did this without advice of counsel. And that these licenses would represent a valuable profit-making opportunity for your businesses. Why, oh why, do foax try to do-it-yourself when so much money is at stake? Too late for hindsight, but don't you think you ought to get a lawyer to represent you on an appeal or whatever it takes to try again to get these licenses? Or at least to consult with one to tell you definitively that your application has a snowball's chance no matter how you slice it, so you don't spend the rest of your life wondering whether you could have done something differently and still been able to get additional licenses?
> At my license meeting this came up, and the licensing board says I
> intentionally omitted material on my license application, citing the
> licenses the corporations (that I own stock in) hold. They claim that
> I personally own these licenses. I explained to them that the licenses
> are owned and issued to various corporations, not me personally. But
> they wouldn't hear of it. They kept saying things like "you are the
> corporation" and "you and the corporation are the same thing".
This is the kind of place where you really want a lawyer to be arguing for you, not try to argue on your own behalf. It looks disingenuous when you represent yourself and use fancy legal terms to argue you had no knowledge of something. It comes across too clever by half, even if you're telling the truth. You're much better off sitting back and looking clueless while your lawyer argues that a dummy like you couldn't possibly have intentionally done what you did, that it was just a misinterpretation or an inadvertent mistake.
> The way I understand it, a corporation is a separate legal entity
> created under state statute. The corporation is itself its own
> person, capable of owning property and is not intertwined with it's
> stock owners. No matter how I tried to explain this to the state
> employees, they just didn't get it.
But maybe that's not the issue that matters to them. If the licensing statute restricts the number of licenses that can be _controlled_by_ any one individual, it _does_not_ matter whether you own them directly or thru a corporate shell.
> A good analogy - when AT&T gets a license from the FCC to engage in
> telecommunications services, each stockholder doesn't personally hold
> that license. Same thing, right?
Bud, you're not just the 100% stockholder, you are presumably the controlling principal -- president, chairman, or whatever -- of the corporation you control. That's how you differ from a mere stockholder in a publicly held company like AT&T. And it _does_ come up, when a single management group wants to control multiple licenses in a restricted market even when they do so thru separate corporations -- like the brouhaha that ensued when Rupert Murdoch's media empire wanted to take over the Wall Street Journal.
> Can I get opinions here as to who is right, wrong, and what action I
> should take at this point?
You can get reliable opinions as to who is right or wrong, from a local lawyer you hire to research your local law and apply it to your exact facts and give you his best professional estimate of the likely outcomes and what you can do to affect those outcomes. The only action I can recommend you take at this point is to consult that lawyer ASAP and follow his advice. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I own 100% stock in several corporations. Those corporations have
> state-issued privildeged licenses for their various business
> activities.
You don't say what state you're in, or what "privilege" you're talking about. For purposes of discussion I will assume you are talking about liquor licenses or lottery licenses or something like that.
> The licenses are in the corporation's name (Abc, Inc.) NOT
> my personal name.
What does your state's licensing law say about whether that makes any difference? In some states, such as MD, a person may own _or_ have a controlling interest in only a limited number of businesses that hold liquor licenses -- IIRC the number is 3. Any attempts to get around the restriction by setting up shell corporations (owned 100%, or even 51%) by the same principal, are frowned upon.
> Recently I applied for a state-issued priveledged license for myself
> personally (not on behalf of any corporation or business). The
> license application asked to provide a list of any priveledged
> licenses I have.
What was the EXACT language of the question? Can't answer you without knowing that.
People make fun of Bill for getting caught with his pants down, but it really DOES depend on what "is" is.
> I listed the ones I hold personally (such as real estate broker) but I did not
> list the licenses the corporations (that I own common stock in) hold.
I assume you did this without advice of counsel. And that these licenses would represent a valuable profit-making opportunity for your businesses. Why, oh why, do foax try to do-it-yourself when so much money is at stake? Too late for hindsight, but don't you think you ought to get a lawyer to represent you on an appeal or whatever it takes to try again to get these licenses? Or at least to consult with one to tell you definitively that your application has a snowball's chance no matter how you slice it, so you don't spend the rest of your life wondering whether you could have done something differently and still been able to get additional licenses?
> At my license meeting this came up, and the licensing board says I
> intentionally omitted material on my license application, citing the
> licenses the corporations (that I own stock in) hold. They claim that
> I personally own these licenses. I explained to them that the licenses
> are owned and issued to various corporations, not me personally. But
> they wouldn't hear of it. They kept saying things like "you are the
> corporation" and "you and the corporation are the same thing".
This is the kind of place where you really want a lawyer to be arguing for you, not try to argue on your own behalf. It looks disingenuous when you represent yourself and use fancy legal terms to argue you had no knowledge of something. It comes across too clever by half, even if you're telling the truth. You're much better off sitting back and looking clueless while your lawyer argues that a dummy like you couldn't possibly have intentionally done what you did, that it was just a misinterpretation or an inadvertent mistake.
> The way I understand it, a corporation is a separate legal entity
> created under state statute. The corporation is itself its own
> person, capable of owning property and is not intertwined with it's
> stock owners. No matter how I tried to explain this to the state
> employees, they just didn't get it.
But maybe that's not the issue that matters to them. If the licensing statute restricts the number of licenses that can be _controlled_by_ any one individual, it _does_not_ matter whether you own them directly or thru a corporate shell.
> A good analogy - when AT&T gets a license from the FCC to engage in
> telecommunications services, each stockholder doesn't personally hold
> that license. Same thing, right?
Bud, you're not just the 100% stockholder, you are presumably the controlling principal -- president, chairman, or whatever -- of the corporation you control. That's how you differ from a mere stockholder in a publicly held company like AT&T. And it _does_ come up, when a single management group wants to control multiple licenses in a restricted market even when they do so thru separate corporations -- like the brouhaha that ensued when Rupert Murdoch's media empire wanted to take over the Wall Street Journal.
> Can I get opinions here as to who is right, wrong, and what action I
> should take at this point?
You can get reliable opinions as to who is right or wrong, from a local lawyer you hire to research your local law and apply it to your exact facts and give you his best professional estimate of the likely outcomes and what you can do to affect those outcomes. The only action I can recommend you take at this point is to consult that lawyer ASAP and follow his advice. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Mortgage as lien, part 2
On Dec 6, 10:51 am, "Stuart A. Bronstein" <spamt...@lexregia.com> wrote:
> Technically it is unlikely that the homeowners would have the right
> to "foreclose." Instead you have a different kind of lien, and can,
> under some circumstances, have the property sold to satisfy the lien.
> It looks like a foreclosure but it's not exactly the same thing.
Really? What does "foreclosure" mean in CA? In MD, and I thought everywhere else, it refers to a legal process
that, if followed to its conclusion, can force a sale of property held subject to a recorded lien, which lien arose either as collateral for a loan pursuant to a written security agreement (a "mortgage") OR to satisfy a money judgment
The following definition is from Law.com's online legal dictionary at
http://dictionary.law.com/default2.asp?selected=763&bold=||||
"foreclosure
n. the system by which a party who has loaned money secured by a mortgage or deed of trust on real property (or has an unpaid judgment), requires sale of the real property to recover the money due, unpaid interest, plus the costs of foreclosure, when the debtor fails to make payment. After the payments on the promissory note (which is evidence of the loan) have become delinquent for several months (time varies from state to state), the lender can have a notice of default served on the debtor (borrower) stating the amount due and the amount necessary to "cure" the default. If the delinquency and costs of foreclosure are not paid within a specified period, then the lender (or the trustee in states using deeds of trust) will set a foreclosure date, after which the property may be sold at public sale. Up to the time of foreclosure (or even afterwards in some states) the defaulting borrower can pay all delinquencies and costs (which are then greater due to foreclosure costs) and "redeem" the property. Upon sale of the property the amount due is paid to the creditor (lender or owner of the judgment) and the remainder of the money received from the sale, if any, is paid to the lender. There is also judicial foreclosure in which the lender can bring suit for foreclosure against the defaulting borrower for the delinquency and force a sale. This is used in several states with the mortgage system or in deed of trust states when it appears that the amount due is greater than the equity value of the real property, and the lender wishes to get a deficiency judgment for the amount still due after sale. This is not necessary in those states which give deficiency judgments without filing a lawsuit when the foreclosure is upon the mortgage or deed of trust."
[Me again]
This is _not_ the same thing as a seller on the installment plan, who does _not_ give full title to the buyer until the purchase price is fully paid, who simply repossesses the property (house, car, TV set, whatever) if payments aren't kept up. In a typical modern real estate transaction, the lender is a third party to the deal between the seller and buyer; the seller gets fully paid at closing of escrow (settlement) by funds furnished by the lender, and the lender in turn gets a recorded lien against the property which it can foreclose upon in event of default. But the lender does NOT typically want the property "back" in that case; they just want their _money_ back, and the only way to do that is to force a sale. The lender, or other lienholder, IIUC does _not_ get title to the property, and is not in the chain of title for future buyers, unless the lender just _happens_ to be the one who buys the property at the foreclosure sale, which they usually will do only if there are no other buyers willing to pay at least enough to pay off the lender's lien that they foreclosed upon in the first place, and any other liens senior to that lender's.
At least, that 's the way it works in MD. Perhaps Stu or Barry Gold (who posted a similar response on this thread) could explain why and how it works out differently in CA.
[OP wrote:]
> > if the property is worth less than
> > the loan balance, will we just be accepting a financial liability
> > by foreclosing?
>
> It is very unlikely that a lender would make a loan on the property
> if their mortgage could be lost so easily.
Agreed.
<snip>
> If your homeowners association doesn't have a lawyer, you'd better
> get one now. Otherwise you could end up losing a whole lot more than
> you stand to gain.
Another Very Good Suggestion.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Technically it is unlikely that the homeowners would have the right
> to "foreclose." Instead you have a different kind of lien, and can,
> under some circumstances, have the property sold to satisfy the lien.
> It looks like a foreclosure but it's not exactly the same thing.
Really? What does "foreclosure" mean in CA? In MD, and I thought everywhere else, it refers to a legal process
that, if followed to its conclusion, can force a sale of property held subject to a recorded lien, which lien arose either as collateral for a loan pursuant to a written security agreement (a "mortgage") OR to satisfy a money judgment
The following definition is from Law.com's online legal dictionary at
http://dictionary.law.com/default2.asp?selected=763&bold=||||
"foreclosure
n. the system by which a party who has loaned money secured by a mortgage or deed of trust on real property (or has an unpaid judgment), requires sale of the real property to recover the money due, unpaid interest, plus the costs of foreclosure, when the debtor fails to make payment. After the payments on the promissory note (which is evidence of the loan) have become delinquent for several months (time varies from state to state), the lender can have a notice of default served on the debtor (borrower) stating the amount due and the amount necessary to "cure" the default. If the delinquency and costs of foreclosure are not paid within a specified period, then the lender (or the trustee in states using deeds of trust) will set a foreclosure date, after which the property may be sold at public sale. Up to the time of foreclosure (or even afterwards in some states) the defaulting borrower can pay all delinquencies and costs (which are then greater due to foreclosure costs) and "redeem" the property. Upon sale of the property the amount due is paid to the creditor (lender or owner of the judgment) and the remainder of the money received from the sale, if any, is paid to the lender. There is also judicial foreclosure in which the lender can bring suit for foreclosure against the defaulting borrower for the delinquency and force a sale. This is used in several states with the mortgage system or in deed of trust states when it appears that the amount due is greater than the equity value of the real property, and the lender wishes to get a deficiency judgment for the amount still due after sale. This is not necessary in those states which give deficiency judgments without filing a lawsuit when the foreclosure is upon the mortgage or deed of trust."
[Me again]
This is _not_ the same thing as a seller on the installment plan, who does _not_ give full title to the buyer until the purchase price is fully paid, who simply repossesses the property (house, car, TV set, whatever) if payments aren't kept up. In a typical modern real estate transaction, the lender is a third party to the deal between the seller and buyer; the seller gets fully paid at closing of escrow (settlement) by funds furnished by the lender, and the lender in turn gets a recorded lien against the property which it can foreclose upon in event of default. But the lender does NOT typically want the property "back" in that case; they just want their _money_ back, and the only way to do that is to force a sale. The lender, or other lienholder, IIUC does _not_ get title to the property, and is not in the chain of title for future buyers, unless the lender just _happens_ to be the one who buys the property at the foreclosure sale, which they usually will do only if there are no other buyers willing to pay at least enough to pay off the lender's lien that they foreclosed upon in the first place, and any other liens senior to that lender's.
At least, that 's the way it works in MD. Perhaps Stu or Barry Gold (who posted a similar response on this thread) could explain why and how it works out differently in CA.
[OP wrote:]
> > if the property is worth less than
> > the loan balance, will we just be accepting a financial liability
> > by foreclosing?
>
> It is very unlikely that a lender would make a loan on the property
> if their mortgage could be lost so easily.
Agreed.
<snip>
> If your homeowners association doesn't have a lawyer, you'd better
> get one now. Otherwise you could end up losing a whole lot more than
> you stand to gain.
Another Very Good Suggestion.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Mortgage as lien
On Dec 6, 10:51 am, "David L. Martel" <marte...@earthlink.net> wrote:
> I also doubt that the mortgage company has a lien on the title.
Um, David, by definition a mortgage _is_ a lien. That's what makes it a mortgage, and differentiates it from an ordinary, unsecured personal loan to the homeowner. The lender has recorded the mortgage documents (in some states, in the form of a Deed of Trust) with the land records office, of that you can be sure. It gives the lender a secured interest in the real estate as collateral for the loan, and can be foreclosed upon in case of default.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I also doubt that the mortgage company has a lien on the title.
Um, David, by definition a mortgage _is_ a lien. That's what makes it a mortgage, and differentiates it from an ordinary, unsecured personal loan to the homeowner. The lender has recorded the mortgage documents (in some states, in the form of a Deed of Trust) with the land records office, of that you can be sure. It gives the lender a secured interest in the real estate as collateral for the loan, and can be foreclosed upon in case of default.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Client wants proof of authority to sign for LLC
On Dec 4, 7:43 am, wesmicha...@gmail.com wrote:
> Hello,
> A client wants us to send them our Operating Agreement for our LLC to
> see who can officially sign documents, such as contracts, bills, etc.
A formal resolution by the corporate board would serve that purpose better.
> I would rather not send the Operating Agreement of our LLC because it
> has details about how we run our company, how we distribute money,
> etc.
That's smart. It's none of the client's business how you operate internally.
> Is an Operating Agreement public domain (we are in Louisiana)?
I don't know LA law, but if it was public domain, they wouldn't have to ask you for it, would they? They'd go down to the state office of corporate records, and get a copy from the publicly available file on your company.
> Is it standard practice to ask an LLC to produce it's Operating
> Agreement?
I have no idea. It's apparently either standard internal procedure for THIS client to ask their vendors for one, or else they felt they needed some extra assurance in dealing with your company in particular for some reason.
That doesn't mean you have to bend over and give it to them.
> Thanks in advance for any help you can give on this matter.
See if they will accept a Resolution, written on corporate letter head and sealed with the corporate seal, in which the Board of the LLC affirms to whomever it may concern, that the following listed person(s) are authorized to sign contracts on behalf of the LLC to bind the LLC -- either leave it at that, or specify the kinds of contracts, or the kinds of vendors or names of particular vendors he is authorized to deal with, or the dollar limits on the amount the person can contract for... that's all they need to know.
Needless to say, if you have no idea what I'm talking about you ought to have your LLC's lawyer draft this for you. If you don't have one yet, you should get one. He or she is handy to have around for events like this and it's better (and cheaper) if you have already established a relationship and don't have to reinvent the wheel each time. Maybe the lawyer who drafted the LLC papers for you can help?
Browse my previous posts, and those of fellow netizen Barry Gold, for hints on how to pick a lawyer if you don't have one already. Nothing personal, but I'm getting tired of repeating myself. (Maybe I'll add that whole how-to-find-a-lawyer blurb to my sig block, but not today.) Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Hello,
> A client wants us to send them our Operating Agreement for our LLC to
> see who can officially sign documents, such as contracts, bills, etc.
A formal resolution by the corporate board would serve that purpose better.
> I would rather not send the Operating Agreement of our LLC because it
> has details about how we run our company, how we distribute money,
> etc.
That's smart. It's none of the client's business how you operate internally.
> Is an Operating Agreement public domain (we are in Louisiana)?
I don't know LA law, but if it was public domain, they wouldn't have to ask you for it, would they? They'd go down to the state office of corporate records, and get a copy from the publicly available file on your company.
> Is it standard practice to ask an LLC to produce it's Operating
> Agreement?
I have no idea. It's apparently either standard internal procedure for THIS client to ask their vendors for one, or else they felt they needed some extra assurance in dealing with your company in particular for some reason.
That doesn't mean you have to bend over and give it to them.
> Thanks in advance for any help you can give on this matter.
See if they will accept a Resolution, written on corporate letter head and sealed with the corporate seal, in which the Board of the LLC affirms to whomever it may concern, that the following listed person(s) are authorized to sign contracts on behalf of the LLC to bind the LLC -- either leave it at that, or specify the kinds of contracts, or the kinds of vendors or names of particular vendors he is authorized to deal with, or the dollar limits on the amount the person can contract for... that's all they need to know.
Needless to say, if you have no idea what I'm talking about you ought to have your LLC's lawyer draft this for you. If you don't have one yet, you should get one. He or she is handy to have around for events like this and it's better (and cheaper) if you have already established a relationship and don't have to reinvent the wheel each time. Maybe the lawyer who drafted the LLC papers for you can help?
Browse my previous posts, and those of fellow netizen Barry Gold, for hints on how to pick a lawyer if you don't have one already. Nothing personal, but I'm getting tired of repeating myself. (Maybe I'll add that whole how-to-find-a-lawyer blurb to my sig block, but not today.) Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Condo board foreclosure
On Dec 4, 7:42 am, TC <golemdan...@yahoo.com> wrote:
> I am on the board of a homeowner's association for a condominium
> complex in California. We have been fortunate, and have not had many
> delinquencies in the past. As a result, none of the current board
> members has any experience with foreclosure.
Then for Pete's sake, why don't you have the Board's lawyer-on-retainer handle this for you? If you don't have one, get one. Yesterday if not sooner.
> However, we now have one unit which is forcing us to consider
> foreclosure.
Wrong. The debtor doesn't force YOU into foreclosure. Rather, your board, as the creditor, CAN if you choose, force the debtor into foreclosure. But you should do so only if that option is better for the board's interests than any of the other available options, and typically as a last resort.
First of all, if your condo bylaws are structured like most, you're not going to be able to "foreclose" without a lot of other legal stuff happening first. You have to get a lien recorded in the land records of your county before you can legally foreclose on that lien, and to get that, you either need to have a contract with the unit owner that says you get an automatic lien, OR you have to sue the guy, win, and record your judgment as a lien in the land records. All of that takes time, and money. Meanwhile, if you do get a judgment you can also pursue other means of collection, including asking the court to seize and sell any other assets the debtor owns, if any, above the amount the law allows him to exempt from seizure as his "homestead exemption." You will need a lawyer to explain all the ins and outs of your locality's law to the board to make that decision about which avenue is best for you.
Even if you do already have a duly recorded lien, what's wrong with simply sitting back and waiting until the unit owner sells, then recovering the amount of the lien, plus interest, from the proceeds, as he must do in order to sell?
> At our last board meeting, we discussed the option and we
> discovered that none of us knew the answer to a fundamental question
> about foreclosure:
Then you need to get yourselves a real live local lawyer, show him all the relevant documents, and bring him to the next meeting to advise your board. You would be foolish to rely on free advice from unknown keyboarders on the Internet who, for all you know and all they represent themselves to be, may just be a bunch of monkeys trying to rewrite Shakespeare. Myself included.
> If we foreclose on a property, will we assume the
> mortgage debt? And, if the property is worth less than the loan
> balance, will we just be accepting a financial liability by
> foreclosing?
Typically, anyone holding a recorded lien can foreclose, no matter how small or recent their interest in the property may be. But if they do, _all_ of the lienholders get paid off from the proceeds, in order of seniority, including the bank holding the first mortgage for the unit owner. any second mortgage or home equity line of credit he has, any property taxes he owes, and so on.
You seem to erroneously assume that "foreclosure" by a condo board will mean that you, the condo board, will wind up owning the property. No. All it means is that you have the right, if you choose, to force the owner to sell, and to pay off your debt from the proceeds. The ultimate buyer at that sale on the courthouse steps, conducted by the sheriff or by an auctioneer hired by the court, is who will wind up owning the property; your board is not in the chain of title. Generally, the buyer at foreclosure will wind up owning it free and clear of any prior liens. That does not necessarily free the prior unit owner from his DEBT; if the proceeds from sale of the collateral are not enough to pay off all his debts, the creditors can still continue to come after him to make up the deficiency.
If the property is worth less than the loan debt, chances are you would be stupid to foreclose, since the senior lien (the one oldest in time, and usually largest in amount) gets paid off first, and junior lienholders such as recent judgment creditors get paid only if there is anything left over, after the senior liens and the cost of sale are taken into account. You would wind up getting nothing for all your effort.
> I believe the answer is no -- If we foreclose, we do not assume the
> mortgage debt. Am I right about that?
In general, I think so too, but don't listen to me for sound advice on that point; you don't even say where you are, and local law plus the actual terms of the various documents involved may lead to a different result. Your board needs to get a lawyer, before you take any other action on this issue. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I am on the board of a homeowner's association for a condominium
> complex in California. We have been fortunate, and have not had many
> delinquencies in the past. As a result, none of the current board
> members has any experience with foreclosure.
Then for Pete's sake, why don't you have the Board's lawyer-on-retainer handle this for you? If you don't have one, get one. Yesterday if not sooner.
> However, we now have one unit which is forcing us to consider
> foreclosure.
Wrong. The debtor doesn't force YOU into foreclosure. Rather, your board, as the creditor, CAN if you choose, force the debtor into foreclosure. But you should do so only if that option is better for the board's interests than any of the other available options, and typically as a last resort.
First of all, if your condo bylaws are structured like most, you're not going to be able to "foreclose" without a lot of other legal stuff happening first. You have to get a lien recorded in the land records of your county before you can legally foreclose on that lien, and to get that, you either need to have a contract with the unit owner that says you get an automatic lien, OR you have to sue the guy, win, and record your judgment as a lien in the land records. All of that takes time, and money. Meanwhile, if you do get a judgment you can also pursue other means of collection, including asking the court to seize and sell any other assets the debtor owns, if any, above the amount the law allows him to exempt from seizure as his "homestead exemption." You will need a lawyer to explain all the ins and outs of your locality's law to the board to make that decision about which avenue is best for you.
Even if you do already have a duly recorded lien, what's wrong with simply sitting back and waiting until the unit owner sells, then recovering the amount of the lien, plus interest, from the proceeds, as he must do in order to sell?
> At our last board meeting, we discussed the option and we
> discovered that none of us knew the answer to a fundamental question
> about foreclosure:
Then you need to get yourselves a real live local lawyer, show him all the relevant documents, and bring him to the next meeting to advise your board. You would be foolish to rely on free advice from unknown keyboarders on the Internet who, for all you know and all they represent themselves to be, may just be a bunch of monkeys trying to rewrite Shakespeare. Myself included.
> If we foreclose on a property, will we assume the
> mortgage debt? And, if the property is worth less than the loan
> balance, will we just be accepting a financial liability by
> foreclosing?
Typically, anyone holding a recorded lien can foreclose, no matter how small or recent their interest in the property may be. But if they do, _all_ of the lienholders get paid off from the proceeds, in order of seniority, including the bank holding the first mortgage for the unit owner. any second mortgage or home equity line of credit he has, any property taxes he owes, and so on.
You seem to erroneously assume that "foreclosure" by a condo board will mean that you, the condo board, will wind up owning the property. No. All it means is that you have the right, if you choose, to force the owner to sell, and to pay off your debt from the proceeds. The ultimate buyer at that sale on the courthouse steps, conducted by the sheriff or by an auctioneer hired by the court, is who will wind up owning the property; your board is not in the chain of title. Generally, the buyer at foreclosure will wind up owning it free and clear of any prior liens. That does not necessarily free the prior unit owner from his DEBT; if the proceeds from sale of the collateral are not enough to pay off all his debts, the creditors can still continue to come after him to make up the deficiency.
If the property is worth less than the loan debt, chances are you would be stupid to foreclose, since the senior lien (the one oldest in time, and usually largest in amount) gets paid off first, and junior lienholders such as recent judgment creditors get paid only if there is anything left over, after the senior liens and the cost of sale are taken into account. You would wind up getting nothing for all your effort.
> I believe the answer is no -- If we foreclose, we do not assume the
> mortgage debt. Am I right about that?
In general, I think so too, but don't listen to me for sound advice on that point; you don't even say where you are, and local law plus the actual terms of the various documents involved may lead to a different result. Your board needs to get a lawyer, before you take any other action on this issue. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Good driver caught in speed trap
On Dec 4, 7:42 am, tobe <ybotka...@cinci.rr.com> wrote:
> A friend of mine ...
> is an upstanding citizen, who never even speeds, much less anything else
> illegal.
Wanna bet? Not getting caught isn't the same thing as never doing it. As someone once said, we're ALL guilty of something. Fortunately, our adversary system, unlike the inquisitorial system popular in some other countries, requires the government to prove your guilt beyond a reasonable doubt before they can convict and punish you; it doesn't make the suspect prove his innocence. Otherwise, we'd all be at risk of being behind bars.
If you honestly believe you can find me a driver who NEVER speeds, not even 1 or 2 mph over the limit, I've got a bridge in Brooklyn I'd like to sell to you. I've never met one. Or one who never tailgates, even inadvertently and for just a few seconds when someone cuts in front of him. Or who has never made a lane change and then noticed, "Hey, how did that other car get there? He almost hit me!" when in reality, the person changing lanes is the one who almost hit the guy who was already there. Etcetera ad nauseam; we all make mistakes. That doesn't mean we don't, most of us, TRY to stay within the traffic laws most of the time. And some of us succeed in not getting noticed by the police to the point of never getting a ticket from a live cop, which says as much for their ability to blend in with the crowd as it does for their strict compliance with the law.
But I digress; what we appear to be dealing with here is some form of AUTOMATED traffic enforcement, probably a speed radar camera installed alongside one of the highways your friend travels, which need not pick your friend out from the crowd around him; such tools are wonderful revenue enhancement devices that can catch hundreds of small-time offenders going just a few mph over the limit in the same amount of time a live cop would waste tracking down just 1 or 2 truly dangerous drivers going significantly faster than the flow of traffic. Lest I repeat myself, let me emphasize that AUTOMATED CAMERAS ARE DESIGNED AND INTENDED TO CATCH EXACTLY THE KIND OF PEOPLE WHO WOULD NEVER GET AN ORDINARY, LIVE TICKET for doing whatever they were doing.
Most people consider themselves "good drivers." In point of fact, probably most of them are, if by "good driver" one means "person who pretty much follows the rules". Whether most drivers are "good drivers" in the sense of actual driving skill, ability to control their car in extreme situations, etc., is a different kettle of fish. IMHO by that criterion most people are lousy drivers, because actual driving skill is not something that was ever taught to them when they were learning to drive, either by formal schooling (driver ed requires only a bare minimum skill level of actual car handling, and focuses on safety rule compliance), or by the less-than-stellar-driver relatives who taught them most of what they know, or by the hot-rod hoodlum friends who taught them the rest of what they think they know (usually the "go fast" part without the "how to keep the damn thing under safe control" part). There are schools that teach advanced driving techniques, such as how to safely handle a skid, how to safely maximize your cornering traction and recognize the signs of your limits of tire adhesion, and so on, but they are geared toward experienced adult car nuts and driving professionals. Only a tiny fraction of licensed drivers take such courses.
Anyway, I digress again. Even the rule-following kind of "good drivers" do go a LITTLE bit over the limit sometimes, and sometimes it is unsafe NOT to do so, if say, the rest of the vehicles on a crowded interstate highway with an unnaturally low 55 posted limit are doing 70 to 75 or more and you are the lone holdout trying to keep your speedometer below the magic "55", you are holding up traffic and creating a bunching hazard. Someone who is truly trying to be a "safe" good driver and not just being anal retentive will not do that, but will adjust his speed to the flow of traffic -- granted, perhaps at the slower end of that range so everybody else on the road will be passing him, but he will keep his speed in the range that minimizes the actual risk which typically _begins_ (on a modern, gently curved multilane interstate highway with a mix of modern vehicles) at maybe 5-10 mph over the nominal 55 limit. On roads with higher posted limits, he could probably safely do the limit, but would be creating a danger if he proceeded at anything below the limit, anywhere but the far right lane.
And that doesn't include the possibility that your friend's speedometer is off calibration just a little bit in the wrong direction, so that when it says he is doing 54, he is really doing 59 or even more. Plenty enough to be caught by a speed camera even if he THINKS he is being strictly compliant with the law.
> Twice now, he has gotten letters sent to his home address in Ohio, from
> the Indiana State Police, stating that they recorded his car (license
> plate) in Indiana, and wanting to know both his point of origin and his
> destination.
Yep, it sounds like this may be a speed radar camera setup. Otherwise, if there was a live cop on the scene they would just write him a ticket on the spot. Maybe they couldn't clearly read the state name on his license plate in the photo, just the big numbers, and they wanted to confirm that it was in fact an OH plate and was his car, so they could send him a ticket.
OTOH this may have nothing to do with speed. Maybe they're monitoring parked cars by means of meter maids, and making sure that folks who live in IN get IN plates and don't keep using their OH plates. Or something like that. But I doubt the state police would be involved in such an effort, since they mainly patrol the open highways of the state, not the cities or other places where groups of people live and cars get parked.
> Rather than following his first impulse of sending them a letter
> indicating that it is none of their damn business, he has quietly thrown
> these two letters in the trash.
That was probably his best response, especially if he didn't know what they were fishing for. Often, the cops have several isolated bits of evidence that might incriminate you, and want you to supply just the one missing piece of the jigsaw puzzle that, by itself, is harmless and meaningless, but if taken together with the other facts the cops know, could put you at the scene of a crime, or otherwise implicate you in criminal activity or a traffic violation. Even for a minor traffic ticket, you have the Constitutional right not to be compelled to testify against yourself.
> 1. Can the State Police ask these questions
Yes. As a wise person once said, "there's no harm in asking."
> and require a response?
No. The Constitution forbids the cops to compel statements from a criminal suspect or even from a person who is not yet a suspect but who wants to prevent his words from somehow being used against him to bring charges.
> 2. Should he do anything besides trashing these letters?
Not in my book. However, if your friend is too dull to note the difference between a "fishing expedition" letter like this from the cops, and a formal summons requiring him to appear in court and/or file a written answer on pain of being held in default, he should ask a local lawyer if he is ever in doubt about what a particular piece of paper requires him to do. In this case, though, silence is probably his best policy.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> A friend of mine ...
> is an upstanding citizen, who never even speeds, much less anything else
> illegal.
Wanna bet? Not getting caught isn't the same thing as never doing it. As someone once said, we're ALL guilty of something. Fortunately, our adversary system, unlike the inquisitorial system popular in some other countries, requires the government to prove your guilt beyond a reasonable doubt before they can convict and punish you; it doesn't make the suspect prove his innocence. Otherwise, we'd all be at risk of being behind bars.
If you honestly believe you can find me a driver who NEVER speeds, not even 1 or 2 mph over the limit, I've got a bridge in Brooklyn I'd like to sell to you. I've never met one. Or one who never tailgates, even inadvertently and for just a few seconds when someone cuts in front of him. Or who has never made a lane change and then noticed, "Hey, how did that other car get there? He almost hit me!" when in reality, the person changing lanes is the one who almost hit the guy who was already there. Etcetera ad nauseam; we all make mistakes. That doesn't mean we don't, most of us, TRY to stay within the traffic laws most of the time. And some of us succeed in not getting noticed by the police to the point of never getting a ticket from a live cop, which says as much for their ability to blend in with the crowd as it does for their strict compliance with the law.
But I digress; what we appear to be dealing with here is some form of AUTOMATED traffic enforcement, probably a speed radar camera installed alongside one of the highways your friend travels, which need not pick your friend out from the crowd around him; such tools are wonderful revenue enhancement devices that can catch hundreds of small-time offenders going just a few mph over the limit in the same amount of time a live cop would waste tracking down just 1 or 2 truly dangerous drivers going significantly faster than the flow of traffic. Lest I repeat myself, let me emphasize that AUTOMATED CAMERAS ARE DESIGNED AND INTENDED TO CATCH EXACTLY THE KIND OF PEOPLE WHO WOULD NEVER GET AN ORDINARY, LIVE TICKET for doing whatever they were doing.
Most people consider themselves "good drivers." In point of fact, probably most of them are, if by "good driver" one means "person who pretty much follows the rules". Whether most drivers are "good drivers" in the sense of actual driving skill, ability to control their car in extreme situations, etc., is a different kettle of fish. IMHO by that criterion most people are lousy drivers, because actual driving skill is not something that was ever taught to them when they were learning to drive, either by formal schooling (driver ed requires only a bare minimum skill level of actual car handling, and focuses on safety rule compliance), or by the less-than-stellar-driver relatives who taught them most of what they know, or by the hot-rod hoodlum friends who taught them the rest of what they think they know (usually the "go fast" part without the "how to keep the damn thing under safe control" part). There are schools that teach advanced driving techniques, such as how to safely handle a skid, how to safely maximize your cornering traction and recognize the signs of your limits of tire adhesion, and so on, but they are geared toward experienced adult car nuts and driving professionals. Only a tiny fraction of licensed drivers take such courses.
Anyway, I digress again. Even the rule-following kind of "good drivers" do go a LITTLE bit over the limit sometimes, and sometimes it is unsafe NOT to do so, if say, the rest of the vehicles on a crowded interstate highway with an unnaturally low 55 posted limit are doing 70 to 75 or more and you are the lone holdout trying to keep your speedometer below the magic "55", you are holding up traffic and creating a bunching hazard. Someone who is truly trying to be a "safe" good driver and not just being anal retentive will not do that, but will adjust his speed to the flow of traffic -- granted, perhaps at the slower end of that range so everybody else on the road will be passing him, but he will keep his speed in the range that minimizes the actual risk which typically _begins_ (on a modern, gently curved multilane interstate highway with a mix of modern vehicles) at maybe 5-10 mph over the nominal 55 limit. On roads with higher posted limits, he could probably safely do the limit, but would be creating a danger if he proceeded at anything below the limit, anywhere but the far right lane.
And that doesn't include the possibility that your friend's speedometer is off calibration just a little bit in the wrong direction, so that when it says he is doing 54, he is really doing 59 or even more. Plenty enough to be caught by a speed camera even if he THINKS he is being strictly compliant with the law.
> Twice now, he has gotten letters sent to his home address in Ohio, from
> the Indiana State Police, stating that they recorded his car (license
> plate) in Indiana, and wanting to know both his point of origin and his
> destination.
Yep, it sounds like this may be a speed radar camera setup. Otherwise, if there was a live cop on the scene they would just write him a ticket on the spot. Maybe they couldn't clearly read the state name on his license plate in the photo, just the big numbers, and they wanted to confirm that it was in fact an OH plate and was his car, so they could send him a ticket.
OTOH this may have nothing to do with speed. Maybe they're monitoring parked cars by means of meter maids, and making sure that folks who live in IN get IN plates and don't keep using their OH plates. Or something like that. But I doubt the state police would be involved in such an effort, since they mainly patrol the open highways of the state, not the cities or other places where groups of people live and cars get parked.
> Rather than following his first impulse of sending them a letter
> indicating that it is none of their damn business, he has quietly thrown
> these two letters in the trash.
That was probably his best response, especially if he didn't know what they were fishing for. Often, the cops have several isolated bits of evidence that might incriminate you, and want you to supply just the one missing piece of the jigsaw puzzle that, by itself, is harmless and meaningless, but if taken together with the other facts the cops know, could put you at the scene of a crime, or otherwise implicate you in criminal activity or a traffic violation. Even for a minor traffic ticket, you have the Constitutional right not to be compelled to testify against yourself.
> 1. Can the State Police ask these questions
Yes. As a wise person once said, "there's no harm in asking."
> and require a response?
No. The Constitution forbids the cops to compel statements from a criminal suspect or even from a person who is not yet a suspect but who wants to prevent his words from somehow being used against him to bring charges.
> 2. Should he do anything besides trashing these letters?
Not in my book. However, if your friend is too dull to note the difference between a "fishing expedition" letter like this from the cops, and a formal summons requiring him to appear in court and/or file a written answer on pain of being held in default, he should ask a local lawyer if he is ever in doubt about what a particular piece of paper requires him to do. In this case, though, silence is probably his best policy.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Appeal burdens
On Nov 30, 6:59 am, lolajo...@webtv.net wrote:
> I appealed a speeding ticket conviction and filed everything within the
> prescribed deadlines including my opening brief. The Respondent (the
> county DA) had twenty days to file their answer brief. 9 days after that
> deadline they filed a motion for an extension of time to file. I filed
> an objection to this since it was filed past the deadline. The Judge
> agreed and refused to honor the time extension and will not accept their
> answer brief. What does this do to my appeal? Does this mean the court
> now rules in my favor by default? I know that if I (the appellant)
> failed to file my opening brief on time, my appeal would be dismissed.
> Is the same standard held to the respondent?
Unfortunately for you, probably not. You will still have to appear in court on the appointed day to argue your appeal, and to prove why you think the conviction was wrong. You, as the appellant, have the burden of proof on appeal; that's why your appeal would be dismissed if you failed to take the required initial steps. The party who does _not_ have the burden of proof does not strictly speaking have to do anything at all, and can still win; the appellee (in your case, the state) wins by default if the appellant (you, the party who is requesting a change in the status quo), who is supposed to prove something to justify why the appeal court should overturn the judgment, fails to do so.
The main rule I have learned about how to win on appeal is, "be the appellee." (That's a joke.) Meaning, even if the appellee (the one who won the case below and wants it to stay that way) doesn't show up, or doesn't provide any argument, or doesn't file a brief, in all likelihood the appellee will still win. Only a tiny percentage of the cases that get appealed actually get overturned on appeal, so the statistics bear out the joke. (The serious purpose of the joke, for a practicing lawyer, is to urge him to put everything he has and all his effort into getting the trial judge to rule in his favor, since there is little hope of getting any different result when he appeals a bad result to a different judge).
The judge's ruling in your case means that the DA can't file any written brief, but it doesn't sound like that prevents him from coming to the appeal hearing and presenting oral argument to contradict yours. Even if it does, that still doesn't mean you win by default. You will still have to convince the appeals judge that he should overturn the result reached by the trial judge. Depending on how well you do that, and the judge's predelictions, he may or may not do that, even if there is no one arguing against you on the other side of the issue. Good luck, though.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I appealed a speeding ticket conviction and filed everything within the
> prescribed deadlines including my opening brief. The Respondent (the
> county DA) had twenty days to file their answer brief. 9 days after that
> deadline they filed a motion for an extension of time to file. I filed
> an objection to this since it was filed past the deadline. The Judge
> agreed and refused to honor the time extension and will not accept their
> answer brief. What does this do to my appeal? Does this mean the court
> now rules in my favor by default? I know that if I (the appellant)
> failed to file my opening brief on time, my appeal would be dismissed.
> Is the same standard held to the respondent?
Unfortunately for you, probably not. You will still have to appear in court on the appointed day to argue your appeal, and to prove why you think the conviction was wrong. You, as the appellant, have the burden of proof on appeal; that's why your appeal would be dismissed if you failed to take the required initial steps. The party who does _not_ have the burden of proof does not strictly speaking have to do anything at all, and can still win; the appellee (in your case, the state) wins by default if the appellant (you, the party who is requesting a change in the status quo), who is supposed to prove something to justify why the appeal court should overturn the judgment, fails to do so.
The main rule I have learned about how to win on appeal is, "be the appellee." (That's a joke.) Meaning, even if the appellee (the one who won the case below and wants it to stay that way) doesn't show up, or doesn't provide any argument, or doesn't file a brief, in all likelihood the appellee will still win. Only a tiny percentage of the cases that get appealed actually get overturned on appeal, so the statistics bear out the joke. (The serious purpose of the joke, for a practicing lawyer, is to urge him to put everything he has and all his effort into getting the trial judge to rule in his favor, since there is little hope of getting any different result when he appeals a bad result to a different judge).
The judge's ruling in your case means that the DA can't file any written brief, but it doesn't sound like that prevents him from coming to the appeal hearing and presenting oral argument to contradict yours. Even if it does, that still doesn't mean you win by default. You will still have to convince the appeals judge that he should overturn the result reached by the trial judge. Depending on how well you do that, and the judge's predelictions, he may or may not do that, even if there is no one arguing against you on the other side of the issue. Good luck, though.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Sex predator conspiracy, part 2
On Nov 30, 6:59 am, Stuart Bronstein <spamt...@lexregia.com> wrote:
> Mike Jacobs wrote:
> > David Chesler <ches...@post.harvard.edu> wrote:
> >> What about whatever it is they charge the predators with in To
> >> Catch A Predator? Aren't those older men doing the same thing,
> >> pretending to be younger in order to romance girls?
>
> > That's different. The deceptive mom in the MO case was just
> > trying to spy on the victim to find out what kind of things the
> > victim had been saying to her peers about the mom's daughter (a
> > former friend of the victim). The mom had no intention of
> > actually meeting, much less "going out" with, the victim in her
> > fake online role as a teen boy. All she wanted to get the victim
> > to do was talk.
>
> She must have known that what she was doing would be very painful to an
> already very disturbed young girl. Sounds like intentional infliction of
> emotional distress to me. Probably not a crime, but perhaps actionable
> civilly.
I don't disagree with that, Stu, per my earlier posts on this thread, but your reply has nothing to do with the difference I was trying to point out, between the MO mom and online sexual predators. She had no intention of actually meeting the person on the other end of the line for _any_ purpose, sexual or otherwise, in sharp contrast to the men whose only reason for online roleplaying is to entice the victim into a live, flesh-on-flesh meeting.
> On the other hand if she knew or should have known the girl was
> clinically depressed, it could be involuntary manslaughter.
That could be a possibility too, but again, off topic to the point I was trying to make.
> > Frankly, though, it usually happens the other way around. The
> > purported "victim" is actually not a 13 year old girl but a full
> > grown FBI agent or local cop of either gender.
I meant "usually" to refer only to the (IMO limited) subset of such assignations where one of the parties to the online conversation pretends to be substantially younger than he or she really is. And yes, IMO it's more common for such age-deception to be done by a law enforcement sting operation than by the typical perp.
> Usually? I find it hard to believe there are actually more FBI agents on
> that team than there are actual teens at risk.
Agreed. But, as I try to explain below, that's not what I meant. There certainly are plenty more teens at risk, and more predators trying to harm them, than there are agents trying to catch those predators. But IMO most of those predators are not pretending to be teens online, so it's possible there _are_ more FBI agents pretending to be teens online than there are meet-in-the-flesh predators pretending to be teens online.
> Of course, I haven't seen
> any numbers or statistics.
Me neither, but I have done some research on this issue since I represented a teen rape victim (the perp was her male assistant scoutmaster) a few years ago. Let me elaborate. I agree, there probably are in total a whole lot more pervs who get their jollies strictly from pretending to be teens online and talking dirty with underage girls on chat forums than there are FBI agents on the vice squad. BUT, of that subset of online creeps who actually try to arrange meetings with their victims, the impression I get from scattered news stories about particular arrests, as well as from common sense, is that they _don't_ pretend to be teens online, because they know that if they're setting up a meeting the girl is going to find out how old they really are, and what they look like, eventually. They probably even forward pictures of themselves to the victims and tell them stories (true or not) about the power and freedom they have as adults and invite the girls to join them in that world. Again, anecdotally, it seems this group of predators go shopping for a particular subset of girls who _want_ to go out with older men, who are looking for a sugar daddy who will talk nice to them, be suave and sophisticated, who will take them away from whatever they don't like about their home life, school, or hometown and who will give them money, clothes, jewelry, concerts, fancy dinners, travel, and so on. Those men may still try to hide their true identity to avoid getting caught criminally through their online postings, but IMO they don't try to hide their true age or appearance completely (even if they sugarcoat it somewhat, and touch up the photos they send) because that would be counterproductive to their ultimate goal of finding a willing partner who wants an older man to "save" her. And there are plenty of those.
Now, I'm sure there is also another subset of online predators who pretend to be teens to set up meetings, but I'm guessing that is a much smaller group. I find it hard to imagine that any girl would willingly go thru with a sexual encounter after she walks thru the hotel room door and experiences the shock of finding out how old and ugly their correspondent really was when she thought she was dating a teen hottie. That doesn't prevent the perp from forcing her to have sex once he has her in the hotel room or the deep woods or wherever they arranged to meet, but violent rape isn't what I was talking about. The average, typical pedophile is strictly nonviolent and believes, like the Greek root of the word that names his condition, that in his twisted way he truly "loves children", and that what he is doing is not harmful to them and maybe even beneficial. So, I still feel (without any statistics, true) that most nonviolent online predators who actually want to set up meetings with their victims do _not_ pretend to be much younger or handsomer than they really are, and actually try to capitalize on the "power" and "sophistication" that come with age and that the perp can use to "take her away from" whatever she doesn't like in her life.
Since it was invented, money has always been the strongest aphrodisiac. The older version, sweet talk, is still running a close second. These perps we're talking about know that, and take advantage of both methods.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Mike Jacobs wrote:
> > David Chesler <ches...@post.harvard.edu> wrote:
> >> What about whatever it is they charge the predators with in To
> >> Catch A Predator? Aren't those older men doing the same thing,
> >> pretending to be younger in order to romance girls?
>
> > That's different. The deceptive mom in the MO case was just
> > trying to spy on the victim to find out what kind of things the
> > victim had been saying to her peers about the mom's daughter (a
> > former friend of the victim). The mom had no intention of
> > actually meeting, much less "going out" with, the victim in her
> > fake online role as a teen boy. All she wanted to get the victim
> > to do was talk.
>
> She must have known that what she was doing would be very painful to an
> already very disturbed young girl. Sounds like intentional infliction of
> emotional distress to me. Probably not a crime, but perhaps actionable
> civilly.
I don't disagree with that, Stu, per my earlier posts on this thread, but your reply has nothing to do with the difference I was trying to point out, between the MO mom and online sexual predators. She had no intention of actually meeting the person on the other end of the line for _any_ purpose, sexual or otherwise, in sharp contrast to the men whose only reason for online roleplaying is to entice the victim into a live, flesh-on-flesh meeting.
> On the other hand if she knew or should have known the girl was
> clinically depressed, it could be involuntary manslaughter.
That could be a possibility too, but again, off topic to the point I was trying to make.
> > Frankly, though, it usually happens the other way around. The
> > purported "victim" is actually not a 13 year old girl but a full
> > grown FBI agent or local cop of either gender.
I meant "usually" to refer only to the (IMO limited) subset of such assignations where one of the parties to the online conversation pretends to be substantially younger than he or she really is. And yes, IMO it's more common for such age-deception to be done by a law enforcement sting operation than by the typical perp.
> Usually? I find it hard to believe there are actually more FBI agents on
> that team than there are actual teens at risk.
Agreed. But, as I try to explain below, that's not what I meant. There certainly are plenty more teens at risk, and more predators trying to harm them, than there are agents trying to catch those predators. But IMO most of those predators are not pretending to be teens online, so it's possible there _are_ more FBI agents pretending to be teens online than there are meet-in-the-flesh predators pretending to be teens online.
> Of course, I haven't seen
> any numbers or statistics.
Me neither, but I have done some research on this issue since I represented a teen rape victim (the perp was her male assistant scoutmaster) a few years ago. Let me elaborate. I agree, there probably are in total a whole lot more pervs who get their jollies strictly from pretending to be teens online and talking dirty with underage girls on chat forums than there are FBI agents on the vice squad. BUT, of that subset of online creeps who actually try to arrange meetings with their victims, the impression I get from scattered news stories about particular arrests, as well as from common sense, is that they _don't_ pretend to be teens online, because they know that if they're setting up a meeting the girl is going to find out how old they really are, and what they look like, eventually. They probably even forward pictures of themselves to the victims and tell them stories (true or not) about the power and freedom they have as adults and invite the girls to join them in that world. Again, anecdotally, it seems this group of predators go shopping for a particular subset of girls who _want_ to go out with older men, who are looking for a sugar daddy who will talk nice to them, be suave and sophisticated, who will take them away from whatever they don't like about their home life, school, or hometown and who will give them money, clothes, jewelry, concerts, fancy dinners, travel, and so on. Those men may still try to hide their true identity to avoid getting caught criminally through their online postings, but IMO they don't try to hide their true age or appearance completely (even if they sugarcoat it somewhat, and touch up the photos they send) because that would be counterproductive to their ultimate goal of finding a willing partner who wants an older man to "save" her. And there are plenty of those.
Now, I'm sure there is also another subset of online predators who pretend to be teens to set up meetings, but I'm guessing that is a much smaller group. I find it hard to imagine that any girl would willingly go thru with a sexual encounter after she walks thru the hotel room door and experiences the shock of finding out how old and ugly their correspondent really was when she thought she was dating a teen hottie. That doesn't prevent the perp from forcing her to have sex once he has her in the hotel room or the deep woods or wherever they arranged to meet, but violent rape isn't what I was talking about. The average, typical pedophile is strictly nonviolent and believes, like the Greek root of the word that names his condition, that in his twisted way he truly "loves children", and that what he is doing is not harmful to them and maybe even beneficial. So, I still feel (without any statistics, true) that most nonviolent online predators who actually want to set up meetings with their victims do _not_ pretend to be much younger or handsomer than they really are, and actually try to capitalize on the "power" and "sophistication" that come with age and that the perp can use to "take her away from" whatever she doesn't like in her life.
Since it was invented, money has always been the strongest aphrodisiac. The older version, sweet talk, is still running a close second. These perps we're talking about know that, and take advantage of both methods.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Sex predator conspiracy
On Nov 27, 12:14 pm, David Chesler <ches...@post.harvard.edu> wrote:
> What about whatever it is they charge the predators with in To Catch
> A Predator? Aren't those older men doing the same thing, pretending
> to be younger in order to romance girls?
That's different. The deceptive mom in the MO case was just trying to spy on the victim to find out what kind of things the victim had been saying to her peers about the mom's daughter (a former friend of the victim). The mom had no intention of actually meeting, much less "going out" with, the victim in her fake online role as a teen boy. All she wanted to get the victim to do was talk.
When a middle aged man pretends to be a teen in order to arrange meetings with underage girls, he doesn't just want the girl to talk. Once he makes an overt act to try to convert that online fantasy roleplaying into a reality by setting up and then going to a meeting, he can be arrested for conspiracy (to do what ever it is he was planning to do -- have sex with a minor, transport her across staid lions for immortal porpoises, or so on).
Frankly, though, it usually happens the other way around. The purported "victim" is actually not a 13 year old girl but a full grown FBI agent or local cop of either gender. The agent pretends online to be a teenie-bopper, strikes up a conversation with some predatory-minded man in some online forum, and arranges a meeting. When the perp shows up for the meeting, he is arrested, for conspiracy etc. In most states it doesn't matter that the actual "victim" was not actually a teen; what matters is the perp's criminal _intent_ to have sex with a minor and his commission of some overt act toward fulfillment of that goal (even if the fulfillment of the goal was literally impossible because the purported "victim" did not exist).
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> What about whatever it is they charge the predators with in To Catch
> A Predator? Aren't those older men doing the same thing, pretending
> to be younger in order to romance girls?
That's different. The deceptive mom in the MO case was just trying to spy on the victim to find out what kind of things the victim had been saying to her peers about the mom's daughter (a former friend of the victim). The mom had no intention of actually meeting, much less "going out" with, the victim in her fake online role as a teen boy. All she wanted to get the victim to do was talk.
When a middle aged man pretends to be a teen in order to arrange meetings with underage girls, he doesn't just want the girl to talk. Once he makes an overt act to try to convert that online fantasy roleplaying into a reality by setting up and then going to a meeting, he can be arrested for conspiracy (to do what ever it is he was planning to do -- have sex with a minor, transport her across staid lions for immortal porpoises, or so on).
Frankly, though, it usually happens the other way around. The purported "victim" is actually not a 13 year old girl but a full grown FBI agent or local cop of either gender. The agent pretends online to be a teenie-bopper, strikes up a conversation with some predatory-minded man in some online forum, and arranges a meeting. When the perp shows up for the meeting, he is arrested, for conspiracy etc. In most states it doesn't matter that the actual "victim" was not actually a teen; what matters is the perp's criminal _intent_ to have sex with a minor and his commission of some overt act toward fulfillment of that goal (even if the fulfillment of the goal was literally impossible because the purported "victim" did not exist).
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Shipping return mistake
On Nov 26, 8:09 am, "Mr.Bolshoyhuy" <bolshoy...@hotmail.com> wrote:
> I wasnt home one day when UPS delivered a package I ordered from
> Amazon's 3rd party merchant. So the dumb UPS man sent it back. I got
> my $ back, but not the s/h fee. Thus, I was forced to order it again
> and pay once again s/h.
Why didn't you make a claim against UPS for the extra shipping fee they wrongly caused you? It's not that hard, just call them up and complain. If necessary, they'll send you a form. If it was their mistake, they should pay.
My UPS guy routinely leaves packages on my doorstep when no one is home. Even the USPS will sometimes do that, but usually will retain the package at the local post office and put a notice in my mailbox to come and get it; I'm not sure but am guess that UPS would normally do the same, leaving a note on your door, and would attempt a re-delivery at a time you specify, unless there is something you are leaving out of the fact pattern that gave them a reason to return to sender (or unless they just made a dumb mistake, as you propose).
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I wasnt home one day when UPS delivered a package I ordered from
> Amazon's 3rd party merchant. So the dumb UPS man sent it back. I got
> my $ back, but not the s/h fee. Thus, I was forced to order it again
> and pay once again s/h.
Why didn't you make a claim against UPS for the extra shipping fee they wrongly caused you? It's not that hard, just call them up and complain. If necessary, they'll send you a form. If it was their mistake, they should pay.
My UPS guy routinely leaves packages on my doorstep when no one is home. Even the USPS will sometimes do that, but usually will retain the package at the local post office and put a notice in my mailbox to come and get it; I'm not sure but am guess that UPS would normally do the same, leaving a note on your door, and would attempt a re-delivery at a time you specify, unless there is something you are leaving out of the fact pattern that gave them a reason to return to sender (or unless they just made a dumb mistake, as you propose).
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Tenant liability for improvements
On Nov 25, 7:35 am, "Will" <westes-...@noemail.nospam> wrote:
> I am interested in knowing how to avoid a transfer of liability - away from
> the landlord and to the tenant - for building improvements done by the
> tenant with the landlord's approval.
I'm not a CA lawyer. The following comments are just points for discussion. If you are either the landlord or the tenant in this situation, get a real, live CA lawyer versed in construction law ASAP to represent your interests _before_ signing a contract, or if it's too late for that and someone already got injured, to represent you in the pending or possible suit.
IMO you've got your "transfer of liability" terminology backwards. The person who actually does the work, of designing and building the allegedly defective improvement that causes injury to someone, is always the one _primarily_ liable. In your example, that would be the tenant, if the tenant is actually the one who built the improvement. Nobody has to "transfer" liability away from the landlord and to the tenant -- the tenant is liable already because he's the primary tortfeasor.
Now, in many states the owner of property is presumptively liable for injuries to social guests or business invitees (those whom he invites onto the property to conduct mutually beneficial business) or licensees (those whom he permits to enter for their own purposes) caused by dangerous defects in property that the landlord knew or should have known about. Absent any agreement ot the contrary, however, imposition of such landlord liability is secondary to, and simply intended to provide a known deep pocket for the injured victim to sue in lieu of, the person actually responsible for causing the defect, if frex that person is beyond the jurisdiction of the court, or his identity cannot be determined. If the landlord, after being sued, can find and identify the actual builder of the defective improvement, the landlord is entitled to claim indemnity from him, on the grounds that the landlord's liability is one imposed by law in lieu of the liability of the truly responsible person, who should therefore be obligated to reimburse the secondarily liable defendant landlord for the damages imposed and/or (depending on state law) for the costs of defending the suit.
Often, in actual practice, the victim's lawyer will sue both the landlord, and the tenant, and the builder (if it is a separate company the tenant hired to do the work -- chances are that a white-collar company renting an office would not be having its own employees building a walkway to their own building) and also the management or maintenance company that either the landlord or the tenant or both hired to do their day-to-day tasks in managing the building, and anyone else potentially liable for the negligence that led to the injury, and then leave it up to the jury, and to the law of indemnification which the various defendants may cross-claim among themselves, to sort out who should actually be required to pay the damages. If the victim sues only the landlord, the landlord can file a "third-party claim" to bring in the other responsible parties and demand indemnification from them, either as part of the original suit, or in a separate suit after being found liable for the victim's injuries. And if the tenant company actually hired a construction company to do the work instead of doing it itself, the tenant can _also_ claim indemnification, from the actual builder. It can get pretty complicated.
So, to summarize, the primary liability is that of the builder, and the law imposes secondary liability on the landlord just because he is the owner, and on the tenant just because he is the occupier of the land, while allowing the owner or occupier to claim indemnification from the truly responsible, negligent builder.
If the parties (landlord and tenant) want to shift some of that responsibility _as_between_themselves_ as a matter of contract, they are generally free to do so, if both are sophisticated business entities legally considered to be of equal bargaining strength, and the law will generally uphold whatever alternative arrangements they make as to transfer of liability, such as by eliminating the landlord's right of indemnity, or even by making the landlord have to indemnify the tenant if the tenant gets sued. But none of those agreements can legally affect the victim, who is still free to sue whomever the law makes liable, directly or vicariously, for causing his injury.
> As an example: a California based business renting space in a commercial
> building requests that the landlord construct a walkway on the side of the
> building,
Unless there's something in the lease that requires this, the landlord is under no obligation to provide additional improvements to a commercial tenant. The lease may provide that the tenant company is free to make its own improvements and may or may not provide that once it does, they become the property of the landlord and the tenant has to leave them there when it vacates the tenancy.
> Landlord
> refuses to do this job but asks tenant to pay the cost
I doubt Landlord actually _asked_ tenant to pay anything, if by that you mean to imply that landlord originated such a request, since this was tenant's idea, not landlords, and the landlord is not _asking_ tenant to do anything one way or the other. I am also pretty sure that's not exactly the language the landlord used, if this is something the landlord is not obligated to do. Probably more along the lines of, "I don't have to do that. If you want it done, go ahead and do it yourself and pay for it yourself."
> and to construct a
> path using stepping stones and techniques that could be done at lower cost.
I don't see why the tenant was not free to construct a safer, more expensive concrete walkway if tenant desired to do so. I find it hard to imagine that landlord cared one way or the other what kind of walkway tenant chose to build for tenant's own purposes.
> If at a later time someone is injured using the lower cost walkway, landlord
> or the injured party might be able to sue the tenant for the improvement
> done by the tenant.
Yes, on that part at least you are correct.
> How can this transfer of liability to the tenant be
> prevented?
See above re: improper assumptions at the heart of your question.
What the responsible tenant ought to do, as I hoped would go without saying, is to carry INSURANCE against its own potential liability to those injured by tenant's defectively constructed walkway. They should also, of course, insist that the builder they hire to actually build the walkway (if they are smart about how they go about this, and don't just make the accounting and HR departments go out to the lawn and carry flagstones on their backs in their T-shirts to build this walkway) also provide a certificate of insurance covering _its_ liability, and include an indemnification clause in the tenant's construction contract with the builder. Insurance is simply a normal cost of doing business and is IMO a duty of any responsible business citizen, as well as a good way to make sure the managers of the tenant company can sleep at night without having to worry about whether their company will be forced into bankruptcy by a lawsuit from someone they negligently injure.
> In this particular case, should tenant ask the landlord to sign an agreement
> that offsets tenant's agreement to absorb costs of the improvement in
> exchange for landlord's agreement to absorb all liabilities from usage of
> the improvement?
If this is a real situation, hire yourself a CA lawyer and ask him that question. The actual "which approach is better?" answer depends on both any quirks of local law, and even more so on a full understanding of all the facts and circumstances which you have only begun to provide in what, for lack of precision, I can only assume is a pure hypothetical. Absent complete details, which I am _not_ asking you to provide here, the answer is, as usual, "it depends."
> Agreement would set forth landlord's request for tenant
> to construct pathway.
Um, earlier in your post you said the _tenant_ originally requested the _landlord_ to construct a walkway.
> In exchange for an agreement to implement
> improvement and absorb part or all of the cost of this improvement, tenant
> stipulates in the agreement that landlord agrees to indemnify the tenant for
> all liability associated with construction or use of the improvement.
What possible motivation would the landlord have to agree to THAT?
The walkway is for the tenant's benefit, not landlord's. Landlord presumably doesn't care one way or the other whether tenant builds this walkway, and already has a lease in place on which tenant is paying rent. Would you sign such an agreement if you were the landlord?
> Would such an agreement be:
>
> a) advisable
I have no idea. See above.
> b) enforceable (in California)
I have no idea. See above.
> c) the only agreement required to insulate the tenant from future liability
> for use of the walkway?
As to that, I do have an idea. IMO such an agreement, standing alone, is NOT sufficient to fully insulate tenant from future liability. I don't even know if such insulation is possible, or enforceable, in CA or anywhere else if tenant is in fact the primary tortfeasor as stated in your hypo. Tenant by all means ought to consult a local lawyer NOW if this is a real situation and not a flight of fancy, and tenant also ought to check its insurance coverage with its insurance broker to make sure it has adequate coverage for this new liability.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I am interested in knowing how to avoid a transfer of liability - away from
> the landlord and to the tenant - for building improvements done by the
> tenant with the landlord's approval.
I'm not a CA lawyer. The following comments are just points for discussion. If you are either the landlord or the tenant in this situation, get a real, live CA lawyer versed in construction law ASAP to represent your interests _before_ signing a contract, or if it's too late for that and someone already got injured, to represent you in the pending or possible suit.
IMO you've got your "transfer of liability" terminology backwards. The person who actually does the work, of designing and building the allegedly defective improvement that causes injury to someone, is always the one _primarily_ liable. In your example, that would be the tenant, if the tenant is actually the one who built the improvement. Nobody has to "transfer" liability away from the landlord and to the tenant -- the tenant is liable already because he's the primary tortfeasor.
Now, in many states the owner of property is presumptively liable for injuries to social guests or business invitees (those whom he invites onto the property to conduct mutually beneficial business) or licensees (those whom he permits to enter for their own purposes) caused by dangerous defects in property that the landlord knew or should have known about. Absent any agreement ot the contrary, however, imposition of such landlord liability is secondary to, and simply intended to provide a known deep pocket for the injured victim to sue in lieu of, the person actually responsible for causing the defect, if frex that person is beyond the jurisdiction of the court, or his identity cannot be determined. If the landlord, after being sued, can find and identify the actual builder of the defective improvement, the landlord is entitled to claim indemnity from him, on the grounds that the landlord's liability is one imposed by law in lieu of the liability of the truly responsible person, who should therefore be obligated to reimburse the secondarily liable defendant landlord for the damages imposed and/or (depending on state law) for the costs of defending the suit.
Often, in actual practice, the victim's lawyer will sue both the landlord, and the tenant, and the builder (if it is a separate company the tenant hired to do the work -- chances are that a white-collar company renting an office would not be having its own employees building a walkway to their own building) and also the management or maintenance company that either the landlord or the tenant or both hired to do their day-to-day tasks in managing the building, and anyone else potentially liable for the negligence that led to the injury, and then leave it up to the jury, and to the law of indemnification which the various defendants may cross-claim among themselves, to sort out who should actually be required to pay the damages. If the victim sues only the landlord, the landlord can file a "third-party claim" to bring in the other responsible parties and demand indemnification from them, either as part of the original suit, or in a separate suit after being found liable for the victim's injuries. And if the tenant company actually hired a construction company to do the work instead of doing it itself, the tenant can _also_ claim indemnification, from the actual builder. It can get pretty complicated.
So, to summarize, the primary liability is that of the builder, and the law imposes secondary liability on the landlord just because he is the owner, and on the tenant just because he is the occupier of the land, while allowing the owner or occupier to claim indemnification from the truly responsible, negligent builder.
If the parties (landlord and tenant) want to shift some of that responsibility _as_between_themselves_ as a matter of contract, they are generally free to do so, if both are sophisticated business entities legally considered to be of equal bargaining strength, and the law will generally uphold whatever alternative arrangements they make as to transfer of liability, such as by eliminating the landlord's right of indemnity, or even by making the landlord have to indemnify the tenant if the tenant gets sued. But none of those agreements can legally affect the victim, who is still free to sue whomever the law makes liable, directly or vicariously, for causing his injury.
> As an example: a California based business renting space in a commercial
> building requests that the landlord construct a walkway on the side of the
> building,
Unless there's something in the lease that requires this, the landlord is under no obligation to provide additional improvements to a commercial tenant. The lease may provide that the tenant company is free to make its own improvements and may or may not provide that once it does, they become the property of the landlord and the tenant has to leave them there when it vacates the tenancy.
> Landlord
> refuses to do this job but asks tenant to pay the cost
I doubt Landlord actually _asked_ tenant to pay anything, if by that you mean to imply that landlord originated such a request, since this was tenant's idea, not landlords, and the landlord is not _asking_ tenant to do anything one way or the other. I am also pretty sure that's not exactly the language the landlord used, if this is something the landlord is not obligated to do. Probably more along the lines of, "I don't have to do that. If you want it done, go ahead and do it yourself and pay for it yourself."
> and to construct a
> path using stepping stones and techniques that could be done at lower cost.
I don't see why the tenant was not free to construct a safer, more expensive concrete walkway if tenant desired to do so. I find it hard to imagine that landlord cared one way or the other what kind of walkway tenant chose to build for tenant's own purposes.
> If at a later time someone is injured using the lower cost walkway, landlord
> or the injured party might be able to sue the tenant for the improvement
> done by the tenant.
Yes, on that part at least you are correct.
> How can this transfer of liability to the tenant be
> prevented?
See above re: improper assumptions at the heart of your question.
What the responsible tenant ought to do, as I hoped would go without saying, is to carry INSURANCE against its own potential liability to those injured by tenant's defectively constructed walkway. They should also, of course, insist that the builder they hire to actually build the walkway (if they are smart about how they go about this, and don't just make the accounting and HR departments go out to the lawn and carry flagstones on their backs in their T-shirts to build this walkway) also provide a certificate of insurance covering _its_ liability, and include an indemnification clause in the tenant's construction contract with the builder. Insurance is simply a normal cost of doing business and is IMO a duty of any responsible business citizen, as well as a good way to make sure the managers of the tenant company can sleep at night without having to worry about whether their company will be forced into bankruptcy by a lawsuit from someone they negligently injure.
> In this particular case, should tenant ask the landlord to sign an agreement
> that offsets tenant's agreement to absorb costs of the improvement in
> exchange for landlord's agreement to absorb all liabilities from usage of
> the improvement?
If this is a real situation, hire yourself a CA lawyer and ask him that question. The actual "which approach is better?" answer depends on both any quirks of local law, and even more so on a full understanding of all the facts and circumstances which you have only begun to provide in what, for lack of precision, I can only assume is a pure hypothetical. Absent complete details, which I am _not_ asking you to provide here, the answer is, as usual, "it depends."
> Agreement would set forth landlord's request for tenant
> to construct pathway.
Um, earlier in your post you said the _tenant_ originally requested the _landlord_ to construct a walkway.
> In exchange for an agreement to implement
> improvement and absorb part or all of the cost of this improvement, tenant
> stipulates in the agreement that landlord agrees to indemnify the tenant for
> all liability associated with construction or use of the improvement.
What possible motivation would the landlord have to agree to THAT?
The walkway is for the tenant's benefit, not landlord's. Landlord presumably doesn't care one way or the other whether tenant builds this walkway, and already has a lease in place on which tenant is paying rent. Would you sign such an agreement if you were the landlord?
> Would such an agreement be:
>
> a) advisable
I have no idea. See above.
> b) enforceable (in California)
I have no idea. See above.
> c) the only agreement required to insulate the tenant from future liability
> for use of the walkway?
As to that, I do have an idea. IMO such an agreement, standing alone, is NOT sufficient to fully insulate tenant from future liability. I don't even know if such insulation is possible, or enforceable, in CA or anywhere else if tenant is in fact the primary tortfeasor as stated in your hypo. Tenant by all means ought to consult a local lawyer NOW if this is a real situation and not a flight of fancy, and tenant also ought to check its insurance coverage with its insurance broker to make sure it has adequate coverage for this new liability.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Arrested for a traffic ticket?
On Nov 24, 7:52 am, Mark Shaw <utahspee...@mailinator.com> wrote:
> a speeder who refused to sign his traffic ticket. Discussion on ...
> question of whether, and in what jurisdictions, one can be arrested
> for such refusal.
It can happen in MD and probably many other states. Keep in mind that the basic authority of law enforcement is to use force on behalf of the State (which has a legal monopoly on the use of force) to bring into court those accused of crime. That generally means they have the power to arrest any suspect -- take him into their custody -- by physically restraining him and transporting him to a magistrate (usually after a pit stop at the police station for "booking" - photos, fingerprints, ID check, etc.) within no more than 48 hours, where the suspect will receive an initial hearing to determine whether charges are properly brought and whether the suspect can be released from custody, either on his own recognizance (with no further security requried), or after posting bail to ensure his further appearance in court when summoned. The cop does not determine guilt; the law merely gives him the tools to bring the accused to court where the judge or jury, following proper procedures and hearing the evidence from both sides, can determine whether the state has proven the defendant guilty of committing the offense charged, beyond a reasonable doubt.
A ticket, or citation as it is sometimes called, is basically issued as a courtesy in lieu of arrest to those accused of minor infractions (those punishable only by fine, not imprisonment) where the accused can safely be allowed to continue on their way after acknowledging and receiving a copy of the citation. The law in MD provides that signing the ticket is not an admission of guilt, merely a promise to show up in court when summoned and to respond legally to the charges contained in it, either by paying the fine, or by requesting a hearing on the merits of the charge (i.e. a trial). Failure to sign can lead to arrest, and the tickets issued here generally say so, right above the signature line. I suppose the theory is that one who refuses to sign the ticket cannot be trusted to acknowledge the authority of the issuing officer to issue the ticket, or trusted to show up in court when summoned, and that anticipated resistance to legal authority is what justifies the need for arrest in such circumstances. But nothing more in the way of defying authority other than mere refusal to sign the ticket need be shown to justify the arrest.
I do not know, because I haven't researched the question, whether a cop in MD can legally in the first instance simply arrest a person for a minor infraction, such as speeding, without first offering to just write a ticket. As a practical matter, almost all cops would rather just write a ticket, since it takes too much of their time and paperwork to effectuate an arrest and they'd rather be out on patrol again sooner, writing more tickets. But if the cops really want to arrest a particular person, they can usually find (or concoct) some reason for doing so even if it is outside of their usual procedure and even if the charges are so flimsy that they do not survive the first hearing with a magistrate. While this type of conduct risks exposing the cops who do so to a civil lawsuit for false arrest, or excessive use of force, such abuse of power goes unchallenged often enough that it does continue to happen occasionally. IMO however, most cops most of the time are honest, not trying to be sadists, and are just trying to do their job, to protect and to serve the safety of the citizenry.
Now, as to what happens or legally can happen in terms of police use of force to effectuate the arrest, that depends in large part on exactly how the accused responds at the scene. If he does _anything_ (other than the initial refusal to sign the ticket) that indicates he is not willing to submit to the alternative of being arrested, the cops can use appropriate force to accomplish the arrest. I won't begin to discuss what the standards are here as there are whole books written on the subject, on which cops are supposed to be trained. Suffice it to say that the higher the threat level displayed by the suspect, and the greater the risk to the safety of the officers or bystanders, the more force the officers are allowed to use to subdue the suspect, up to and including use of deadly force where appropriate. I haven't seen the taser video and have no desire to, so I can't comment on whether that was an example of appropriate use of force.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> a speeder who refused to sign his traffic ticket. Discussion on ...
> question of whether, and in what jurisdictions, one can be arrested
> for such refusal.
It can happen in MD and probably many other states. Keep in mind that the basic authority of law enforcement is to use force on behalf of the State (which has a legal monopoly on the use of force) to bring into court those accused of crime. That generally means they have the power to arrest any suspect -- take him into their custody -- by physically restraining him and transporting him to a magistrate (usually after a pit stop at the police station for "booking" - photos, fingerprints, ID check, etc.) within no more than 48 hours, where the suspect will receive an initial hearing to determine whether charges are properly brought and whether the suspect can be released from custody, either on his own recognizance (with no further security requried), or after posting bail to ensure his further appearance in court when summoned. The cop does not determine guilt; the law merely gives him the tools to bring the accused to court where the judge or jury, following proper procedures and hearing the evidence from both sides, can determine whether the state has proven the defendant guilty of committing the offense charged, beyond a reasonable doubt.
A ticket, or citation as it is sometimes called, is basically issued as a courtesy in lieu of arrest to those accused of minor infractions (those punishable only by fine, not imprisonment) where the accused can safely be allowed to continue on their way after acknowledging and receiving a copy of the citation. The law in MD provides that signing the ticket is not an admission of guilt, merely a promise to show up in court when summoned and to respond legally to the charges contained in it, either by paying the fine, or by requesting a hearing on the merits of the charge (i.e. a trial). Failure to sign can lead to arrest, and the tickets issued here generally say so, right above the signature line. I suppose the theory is that one who refuses to sign the ticket cannot be trusted to acknowledge the authority of the issuing officer to issue the ticket, or trusted to show up in court when summoned, and that anticipated resistance to legal authority is what justifies the need for arrest in such circumstances. But nothing more in the way of defying authority other than mere refusal to sign the ticket need be shown to justify the arrest.
I do not know, because I haven't researched the question, whether a cop in MD can legally in the first instance simply arrest a person for a minor infraction, such as speeding, without first offering to just write a ticket. As a practical matter, almost all cops would rather just write a ticket, since it takes too much of their time and paperwork to effectuate an arrest and they'd rather be out on patrol again sooner, writing more tickets. But if the cops really want to arrest a particular person, they can usually find (or concoct) some reason for doing so even if it is outside of their usual procedure and even if the charges are so flimsy that they do not survive the first hearing with a magistrate. While this type of conduct risks exposing the cops who do so to a civil lawsuit for false arrest, or excessive use of force, such abuse of power goes unchallenged often enough that it does continue to happen occasionally. IMO however, most cops most of the time are honest, not trying to be sadists, and are just trying to do their job, to protect and to serve the safety of the citizenry.
Now, as to what happens or legally can happen in terms of police use of force to effectuate the arrest, that depends in large part on exactly how the accused responds at the scene. If he does _anything_ (other than the initial refusal to sign the ticket) that indicates he is not willing to submit to the alternative of being arrested, the cops can use appropriate force to accomplish the arrest. I won't begin to discuss what the standards are here as there are whole books written on the subject, on which cops are supposed to be trained. Suffice it to say that the higher the threat level displayed by the suspect, and the greater the risk to the safety of the officers or bystanders, the more force the officers are allowed to use to subdue the suspect, up to and including use of deadly force where appropriate. I haven't seen the taser video and have no desire to, so I can't comment on whether that was an example of appropriate use of force.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
"Prosecution" defined, part 2
On Nov 22, 9:54 am, Paul Cassel <pcasselremo...@comremovecast.net> wrote:
> Mike Jacobs wrote:
> > On Nov 20, 8:15 am, Meano.Cu...@yahoo.com wrote:
> >> OP asks about prosecution in a civil court. Prosecution refers to the
> >> proferring of criminal charges; one sues in a civil court. Prosecution
> >> leads to prison; civil suit leads to writing a check.
>
> > That's the way the word "prosecution" is most commonly used, but not
> > exclusively, so I don't think OP is technically wrong to say
> > "prosecuted in civil court."
>
> If you wish to split hairs here, Mike, I'll split along with you. Here
> the OP asks why the one doing the act can't be prosecuted in civil
> court. The OP does not ask if the case can be prosecuted, but the person.
>
> I think usage would be correct to say cases are prosecuted in civil
> court (moved forward) but people are prosecuted (have charges levied)
> only in criminal court.
OK, Paul, you and Meanu are both right, and I missed that the subject of OP's verb "prosecuted" was the person, not the case. OP's phrasing struck me as odd the first time I read it but not as technically incorrect, and I was just trying to backfill and figure out why that was.
But since hairsplitting is the favorite sport on Usenet, please allow me to split yours even farther, and cite a lexicographical authority we probably all can agree is authoritative. Merriam-Webster's website defines the word "prosecute" as follows:
Main Entry:
pros·e·cute Listen to the pronunciation of prosecute
Pronunciation:
\'prä-si-?kyüt\
Function:
verb
Inflected Form(s):
pros·e·cut·ed; pros·e·cut·ing
Etymology:
Middle English, from Latin prosecutus, past participle of prosequi to pursue — more at pursue
Date:
15th century
transitive verb1: to follow to the end : pursue until finished <was…ordered to prosecute the war with…vigor — Marjory S. Douglas>2: to engage in : perform3 a: to bring legal action against for redress or punishment of a crime or violation of law <prosecuted them for fraud> b: to institute legal proceedings with reference to <prosecute a claim>intransitive verb: to institute and carry on a legal suit or prosecution
— pros·e·cut·able Listen to the pronunciation of prosecutable \?prä-s?-'kyü-t?-b?l\ adjective
It appears all 3 of us (you, me, and Meanu) now agree OP was using "prosecuted" in the sense meant by definition 3(a), to prosecute a person, whereas my response to Meanu's post assumed (incorrectly) that OP was using it in the sense of 3(b), to prosecute a case. But, lo and behold, 3(a) itself is not exclusively limited to _criminal_ prosecutions, and the example the M-W lexicographers give can be used to refer either to a civil or criminal prosecution: fraud. And by the actual definition, the word can be used to refer to the act of bringing a legal action against [a person] _either_ for redress [i.e. a suit to recover money damages] _or_ punishment, of a crime _or_ [other] violation of law [such as a tort].
Yes, I know, using the word with the person of the defendant (not the subject matter of the case) as subject of the verb, when one intends to refer to pursuing a civil suit for money damages, would be a very uncommon usage, but at least according to M-W, not an incorrect one either. And indeed, doesn't a civil plaintiff literally prosecute (i.e. go after, pursue) a civil defendant when he sues that person?
Isn't splitting hairs fun?
Anyway, getting back to my original post where I ignored the unusual usage, I did _not_ try to split hairs then, just to answer the question I thought OP was asking. Sometimes (if a post is not completely incompreshensible) I like to give foax the benefit of the doubt.
> My sense of the OP was that the poster didn't understand why no criminal
> charges were placed upon the one who assumed the false identity.
> Further, the OP was confused about how the courts work and that there
> are distinct sides, criminal and civil.
Yes, I'm inclined to agree with that as the most likely explanation. But then I'm still puzzled about what she meant by "civil" court if it was not meant in contrast to "criminal" court. In various contexts, the antonym of "civil" as an adjective modifying "law" is not simply "criminal" but could also be "uncivil", "military", "common", or "religious" among others I didn't think of yet.
Maybe she wanted to know why the nasty mom had not been pursued in a "polite" (civil, as opposed to uncivil) court instead of, as so far seems to be the case, only through the vigilante efforts of the victim's family, neighbors and bloggers to harass her and her family, destroying their property and pressuring them to move away. In fact, the man-made system of laws, and the civil (that word again) society it makes possible, exist precisely to provide a rules-based, fair and balanced system for deciding disputes and resolving competing interests, as a substitute for the brutal natural "laws" -- might makes right, survival of the fittest, unfettered whim of the king, frex -- which govern in more benighted times and places, and to prevent ordinary citizens from taking the law into their own hands out of frustration and lack of confidence in the court system to ever give them a fair shake. That's one possible interpretation.
Another possible interpretation, if OP was of a religious bent, is maybe she was wondering if the nasty mom would ever be made to account for her actions in a secular, earthly, "civil" (as opposed to religious) court, confident nevertheless that she would ultimately get her comeuppance when she appeared before the Pearly Gates and had to answer for her actions to the Heavenly court.
In any event, it never occurred to me in my original post on this thread to chastise her for her awkward verbal usage.
Happy turkey day, everyone.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Mike Jacobs wrote:
> > On Nov 20, 8:15 am, Meano.Cu...@yahoo.com wrote:
> >> OP asks about prosecution in a civil court. Prosecution refers to the
> >> proferring of criminal charges; one sues in a civil court. Prosecution
> >> leads to prison; civil suit leads to writing a check.
>
> > That's the way the word "prosecution" is most commonly used, but not
> > exclusively, so I don't think OP is technically wrong to say
> > "prosecuted in civil court."
>
> If you wish to split hairs here, Mike, I'll split along with you. Here
> the OP asks why the one doing the act can't be prosecuted in civil
> court. The OP does not ask if the case can be prosecuted, but the person.
>
> I think usage would be correct to say cases are prosecuted in civil
> court (moved forward) but people are prosecuted (have charges levied)
> only in criminal court.
OK, Paul, you and Meanu are both right, and I missed that the subject of OP's verb "prosecuted" was the person, not the case. OP's phrasing struck me as odd the first time I read it but not as technically incorrect, and I was just trying to backfill and figure out why that was.
But since hairsplitting is the favorite sport on Usenet, please allow me to split yours even farther, and cite a lexicographical authority we probably all can agree is authoritative. Merriam-Webster's website defines the word "prosecute" as follows:
Main Entry:
pros·e·cute Listen to the pronunciation of prosecute
Pronunciation:
\'prä-si-?kyüt\
Function:
verb
Inflected Form(s):
pros·e·cut·ed; pros·e·cut·ing
Etymology:
Middle English, from Latin prosecutus, past participle of prosequi to pursue — more at pursue
Date:
15th century
transitive verb1: to follow to the end : pursue until finished <was…ordered to prosecute the war with…vigor — Marjory S. Douglas>2: to engage in : perform3 a: to bring legal action against for redress or punishment of a crime or violation of law <prosecuted them for fraud> b: to institute legal proceedings with reference to <prosecute a claim>intransitive verb: to institute and carry on a legal suit or prosecution
— pros·e·cut·able Listen to the pronunciation of prosecutable \?prä-s?-'kyü-t?-b?l\ adjective
It appears all 3 of us (you, me, and Meanu) now agree OP was using "prosecuted" in the sense meant by definition 3(a), to prosecute a person, whereas my response to Meanu's post assumed (incorrectly) that OP was using it in the sense of 3(b), to prosecute a case. But, lo and behold, 3(a) itself is not exclusively limited to _criminal_ prosecutions, and the example the M-W lexicographers give can be used to refer either to a civil or criminal prosecution: fraud. And by the actual definition, the word can be used to refer to the act of bringing a legal action against [a person] _either_ for redress [i.e. a suit to recover money damages] _or_ punishment, of a crime _or_ [other] violation of law [such as a tort].
Yes, I know, using the word with the person of the defendant (not the subject matter of the case) as subject of the verb, when one intends to refer to pursuing a civil suit for money damages, would be a very uncommon usage, but at least according to M-W, not an incorrect one either. And indeed, doesn't a civil plaintiff literally prosecute (i.e. go after, pursue) a civil defendant when he sues that person?
Isn't splitting hairs fun?
Anyway, getting back to my original post where I ignored the unusual usage, I did _not_ try to split hairs then, just to answer the question I thought OP was asking. Sometimes (if a post is not completely incompreshensible) I like to give foax the benefit of the doubt.
> My sense of the OP was that the poster didn't understand why no criminal
> charges were placed upon the one who assumed the false identity.
> Further, the OP was confused about how the courts work and that there
> are distinct sides, criminal and civil.
Yes, I'm inclined to agree with that as the most likely explanation. But then I'm still puzzled about what she meant by "civil" court if it was not meant in contrast to "criminal" court. In various contexts, the antonym of "civil" as an adjective modifying "law" is not simply "criminal" but could also be "uncivil", "military", "common", or "religious" among others I didn't think of yet.
Maybe she wanted to know why the nasty mom had not been pursued in a "polite" (civil, as opposed to uncivil) court instead of, as so far seems to be the case, only through the vigilante efforts of the victim's family, neighbors and bloggers to harass her and her family, destroying their property and pressuring them to move away. In fact, the man-made system of laws, and the civil (that word again) society it makes possible, exist precisely to provide a rules-based, fair and balanced system for deciding disputes and resolving competing interests, as a substitute for the brutal natural "laws" -- might makes right, survival of the fittest, unfettered whim of the king, frex -- which govern in more benighted times and places, and to prevent ordinary citizens from taking the law into their own hands out of frustration and lack of confidence in the court system to ever give them a fair shake. That's one possible interpretation.
Another possible interpretation, if OP was of a religious bent, is maybe she was wondering if the nasty mom would ever be made to account for her actions in a secular, earthly, "civil" (as opposed to religious) court, confident nevertheless that she would ultimately get her comeuppance when she appeared before the Pearly Gates and had to answer for her actions to the Heavenly court.
In any event, it never occurred to me in my original post on this thread to chastise her for her awkward verbal usage.
Happy turkey day, everyone.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
"Prosecution" defined
On Nov 20, 8:15 am, Meano.Cu...@yahoo.com wrote:
> OP asks about prosecution in a civil court. Prosecution refers to the
> proferring of criminal charges; one sues in a civil court. Prosecution
> leads to prison; civil suit leads to writing a check.
That's the way the word "prosecution" is most commonly used, but not exclusively, so I don't think OP is technically wrong to say "prosecuted in civil court." To "prosecute" merely means to "move forward" with a claim or suit; we tend to associate it with criminal suits mainly because the attorney who represents the State plaintiff in such cases is called the "prosecutor," the one whose job is to move forward toward a resolution of criminal charges either by going to court to attempt to prove the charges brought by the law enforcement officers' or victims' charging complaints, or to dismiss such charges.
But the word "prosecute" is also used in the context of civil suits. In both the Federal Rule of Civil Procedure 41(b) and many State and Appellate rules, the rule which permits dismissal of a civil suit that has been sitting around in the docket for a long time (typically, over a year) with no new papers being filed and no hearing pending, is called "dismissal for failure to prosecute". Again, to prosecute just means to move a case forward.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> OP asks about prosecution in a civil court. Prosecution refers to the
> proferring of criminal charges; one sues in a civil court. Prosecution
> leads to prison; civil suit leads to writing a check.
That's the way the word "prosecution" is most commonly used, but not exclusively, so I don't think OP is technically wrong to say "prosecuted in civil court." To "prosecute" merely means to "move forward" with a claim or suit; we tend to associate it with criminal suits mainly because the attorney who represents the State plaintiff in such cases is called the "prosecutor," the one whose job is to move forward toward a resolution of criminal charges either by going to court to attempt to prove the charges brought by the law enforcement officers' or victims' charging complaints, or to dismiss such charges.
But the word "prosecute" is also used in the context of civil suits. In both the Federal Rule of Civil Procedure 41(b) and many State and Appellate rules, the rule which permits dismissal of a civil suit that has been sitting around in the docket for a long time (typically, over a year) with no new papers being filed and no hearing pending, is called "dismissal for failure to prosecute". Again, to prosecute just means to move a case forward.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Giving alcohol to minors
On Nov 19, 8:32 am, jcug...@aol.com wrote:
> My brother, who is 24, threw a football party the other night. Several
> people there were under 21 and were drinking
Stop right there, quit making damaging admissions in public, and advise your brother to GET A LAWYER to represent him on these charges, and NOT TO TALK about the facts of the incident to anyone except his lawyer unless and until the lawyer instructs him to.
> In our state this is a 3rd degree misdemeanor. The penalty
> is 0-365 days in jail and/or a minimum fine of $1000 for the first
> offence and $2500 for each additional offence.
Right, that's what can happen if he gets convicted of all charges. But usually the lawyer is able to reach a plea bargain on just one or two charges with the others being dropped, and often the charge they agree to plead guilty to is a lesser offense that carries a lower minimum penalty.
> Now here is my question. Since 15 individual minors were caught with
> liquor, is my brother facing 15 offences or just 1 offence?
Potentially each act of furnishing liquor to a minor is a separate offense. But what does the charging document say? Was he given 15 citations, or just one?
> Also is jail time likely
Your bro will have to ask his lawyer to gauge the predelictions of your local judge to whom this case will be assigned, and your local prosecutors who will bring the state's case to trial. Obviously, there is a wide range here. He could get Judge Tenderheart, or Judge Hangem.
> or do the courts just want money?
Except for routine traffic speeding cases (which IMO are in some jurisdictions more about revenue than about safety) the courts mostly do NOT want either jail OR money, they simply want to convince the perp to stop doing what he was doing, straighten up and fly right. And, within the broad discretion the law usually allows the judge, Hizzonor will typically do whatever he feels it takes to send a message that will accomplish that end and change the perp's behavior.
Obviously, the facts make a difference, often much more than the differences between judges. If bro intended only to serve his 20something friends and didn't know there were minors at his party, much less that they were drinking, and he was maybe just a bit lax in checking out the ages of guests who got handed a cup or were allowed to tap the keg, a slap on the wrist and probation before judgment may appear to be enough, and if so, that's all your bro will get, even from Judge Hangem. But if he comes across as a hardened bootlegger who spiked the punch and pushed alcohol on clueless teen victims, one of whom almost died from acute toxicity, then even Judge Tenderheart is more likely to send him to jail. Or it could come out somewhere in between.
> He has no prior arrests or convictions.
That can help in a plea for leniency at the sentencing stage, but is completely irrelevant to whether he committed and should be convicted of the specific crimes with which he has been charged arising from _this_ incident.
> I'm trying to get an idea of how serious courts take this offence.
Pretty seriously, in most states. His lawyer will advise him of just what that means in your particular area.
> So basically is my brother going to, at minimum, going to be required
> to pay a $36,000 fine no questions asked?
No, no, no. At minimum he will plead to a lesser charge and get probation. Whether that is even a viable option, or whether there are flaws in the state's case that make it a better decision to insist on going to trial and risking a conviction of the heavier charges to try to get an acquittal, is a decision your bro can make with his lawyer's advice based on all the circumstances. Just because he's been charged with 15 offenses initially doesn't mean the state is actually going to seek conviction on all of them -- it gives both sides some bargaining room.
Bottom line, bro needs a lawyer. Quit reading Usenet and help him find one, if you want to be useful.
Ask your friends who have used lawyers before for _any_ purpose (commercial disputes, wills, divorces, traffic tickets, whatever) to give you the name of their lawyer, and whether they thought he did a good job. If you don't have friends who have used lawyers, surely you have as an acquaintance a person you trust who is in a responsible position that is likely to put them in touch with lawyers on a regular basis -- your boss, maybe? A guidance counselor? A doctor? After you get the names of some lawyers, call the ones that your referring friends believe did well, and ask the lawyer who he would recommend for this type of case. Unless that lawyer is a criminal specialist he will probably not be the one your brother chooses to hire, but can recommend someone more versed in that area. When you start getting multiple recommendations for the same guy or gal, that's your "go to" person. Bro can also comparison-shop on price, but IMO it's far more important to get competence and find someone he had confidence in, than to be bargain-hunting. After all, he has tens of thousands of dollars, and his freedom, at stake.
As a last resort, bro can call the local bar association for referrals, or let his fingers walk thru the yellow pages. But don't necessarily trust the lawyer with the biggest, most expensive ad in the book -- bro still has to talk to the lawyer he's interviewing for the job, long enough to tell whether he feels good about placing his fate in this lawyer's hands and if it feels like they have a good "fit" or rapport with each other.
Avoiding jail is good, since usually only bad things happen in jails. Serving booze to minors is bad. Even if bro's lawyer succeeds in keeping him out of jail, I'm sure he will advise bro never to do anything that stupid again and to be careful whom he invites to his football keggers.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> My brother, who is 24, threw a football party the other night. Several
> people there were under 21 and were drinking
Stop right there, quit making damaging admissions in public, and advise your brother to GET A LAWYER to represent him on these charges, and NOT TO TALK about the facts of the incident to anyone except his lawyer unless and until the lawyer instructs him to.
> In our state this is a 3rd degree misdemeanor. The penalty
> is 0-365 days in jail and/or a minimum fine of $1000 for the first
> offence and $2500 for each additional offence.
Right, that's what can happen if he gets convicted of all charges. But usually the lawyer is able to reach a plea bargain on just one or two charges with the others being dropped, and often the charge they agree to plead guilty to is a lesser offense that carries a lower minimum penalty.
> Now here is my question. Since 15 individual minors were caught with
> liquor, is my brother facing 15 offences or just 1 offence?
Potentially each act of furnishing liquor to a minor is a separate offense. But what does the charging document say? Was he given 15 citations, or just one?
> Also is jail time likely
Your bro will have to ask his lawyer to gauge the predelictions of your local judge to whom this case will be assigned, and your local prosecutors who will bring the state's case to trial. Obviously, there is a wide range here. He could get Judge Tenderheart, or Judge Hangem.
> or do the courts just want money?
Except for routine traffic speeding cases (which IMO are in some jurisdictions more about revenue than about safety) the courts mostly do NOT want either jail OR money, they simply want to convince the perp to stop doing what he was doing, straighten up and fly right. And, within the broad discretion the law usually allows the judge, Hizzonor will typically do whatever he feels it takes to send a message that will accomplish that end and change the perp's behavior.
Obviously, the facts make a difference, often much more than the differences between judges. If bro intended only to serve his 20something friends and didn't know there were minors at his party, much less that they were drinking, and he was maybe just a bit lax in checking out the ages of guests who got handed a cup or were allowed to tap the keg, a slap on the wrist and probation before judgment may appear to be enough, and if so, that's all your bro will get, even from Judge Hangem. But if he comes across as a hardened bootlegger who spiked the punch and pushed alcohol on clueless teen victims, one of whom almost died from acute toxicity, then even Judge Tenderheart is more likely to send him to jail. Or it could come out somewhere in between.
> He has no prior arrests or convictions.
That can help in a plea for leniency at the sentencing stage, but is completely irrelevant to whether he committed and should be convicted of the specific crimes with which he has been charged arising from _this_ incident.
> I'm trying to get an idea of how serious courts take this offence.
Pretty seriously, in most states. His lawyer will advise him of just what that means in your particular area.
> So basically is my brother going to, at minimum, going to be required
> to pay a $36,000 fine no questions asked?
No, no, no. At minimum he will plead to a lesser charge and get probation. Whether that is even a viable option, or whether there are flaws in the state's case that make it a better decision to insist on going to trial and risking a conviction of the heavier charges to try to get an acquittal, is a decision your bro can make with his lawyer's advice based on all the circumstances. Just because he's been charged with 15 offenses initially doesn't mean the state is actually going to seek conviction on all of them -- it gives both sides some bargaining room.
Bottom line, bro needs a lawyer. Quit reading Usenet and help him find one, if you want to be useful.
Ask your friends who have used lawyers before for _any_ purpose (commercial disputes, wills, divorces, traffic tickets, whatever) to give you the name of their lawyer, and whether they thought he did a good job. If you don't have friends who have used lawyers, surely you have as an acquaintance a person you trust who is in a responsible position that is likely to put them in touch with lawyers on a regular basis -- your boss, maybe? A guidance counselor? A doctor? After you get the names of some lawyers, call the ones that your referring friends believe did well, and ask the lawyer who he would recommend for this type of case. Unless that lawyer is a criminal specialist he will probably not be the one your brother chooses to hire, but can recommend someone more versed in that area. When you start getting multiple recommendations for the same guy or gal, that's your "go to" person. Bro can also comparison-shop on price, but IMO it's far more important to get competence and find someone he had confidence in, than to be bargain-hunting. After all, he has tens of thousands of dollars, and his freedom, at stake.
As a last resort, bro can call the local bar association for referrals, or let his fingers walk thru the yellow pages. But don't necessarily trust the lawyer with the biggest, most expensive ad in the book -- bro still has to talk to the lawyer he's interviewing for the job, long enough to tell whether he feels good about placing his fate in this lawyer's hands and if it feels like they have a good "fit" or rapport with each other.
Avoiding jail is good, since usually only bad things happen in jails. Serving booze to minors is bad. Even if bro's lawyer succeeds in keeping him out of jail, I'm sure he will advise bro never to do anything that stupid again and to be careful whom he invites to his football keggers.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Suing oneself?
On Nov 19, 8:32 am, j...@mit.edu (John F. Carr) wrote:
> In a different type of case such an assignment resulted in a
> lawyer suing himself for malpractice. The courts thought that
> was going a bit too far.
LOL. Yes, and a convicted criminal who intends to make an "ineffective assistance of counsel" argument as to why the appeals court should overturn his conviction is generally better off if he has a new attorney handling the appeal.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> In a different type of case such an assignment resulted in a
> lawyer suing himself for malpractice. The courts thought that
> was going a bit too far.
LOL. Yes, and a convicted criminal who intends to make an "ineffective assistance of counsel" argument as to why the appeals court should overturn his conviction is generally better off if he has a new attorney handling the appeal.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Subscribe to:
Posts (Atom)