On May 14, 7:05 am, David Chesler <ches...@post.harvard.edu> wrote:
> > > Suppose a student wishes to wear a cap, because the overhead
> > > fluorescent lights give him a headache.
* * *
> > > It seems that if he is being treated differently on account that he's
> > > a non-Moslem boy rather than an observant Moslem girl.
To which I replied:
> > That's a very superficial reading of the situation that has nothing to
> > do with the reasons for either decision. He's being treated just
> > like every other normal kid in the school unless he can come up with
> > either a religious or a disability reason why his special needs should
> > be accomodated, if that can be done without undue disruption to the
> > school.
Then Mr. Chesler retorted:
> Exactly. He is being treated differently because he is not
> religious.
* * *
> I suppose my confusion arises because I'm trained in math, not law,
> and in math when the answer (to "How come she's allowed to but I'm
> not?") is "Because she's Moslem and you're not" that is called
> "Treating people differently on account of their religion", regardless
> of whether it is for invidious reasons.
I do take your question seriously, David, but pardon me if at first glance it looks like a little kid saying "Wah! Davey gets to wear a hat to school because he says G-d told him to, but I don't!!"
Your conundrum seems to exist because the law, unlike the training you received in math, is not entirely logical, but also based in social policy. The social policy of anti-discrimination is that the _services_provided_to_the_public_ should be made available to everyone, with equal opportunity to access these services not being denied to anyone just because they are "different" in a way that is fundamental to their identity. Opportunity to flaunt the dress code is not one of those "public services" that have to be provided to all equally, so even looking at it logically, making an accomodation for religious headgear does not invalidate the dress code.
OTOH the way you seem to be looking at the law in this area is, "if you make an exception to a general rule for one person's needs, you need to make an exception for everyone, so the rule is out the window." That may make sense mathematically, where things are either true or false and there is no excluded middle ground (find just one even number besides 2 that is a prime number, and the general prime number rule is out the window) but the law frequently and necessarily makes exceptions for policy reasons while still requiring everyone else to comply with the general rule.
> (MGL C 272 s 98: "Whoever makes any distinction, discrimination or
> restriction on account of race, color, religious creed, national
> origin, sex, sexual orientation ... or ancestry relative to ... his
> treatment in any place of public accommodation... shall be
> punished ..." -- if I remember correctly there are comparable,
> slightly weaker, federal guidelines.)
OK, let's look at your assumptions and see how they fit this analysis. First of all, the "treatment in any place of public accomodation" would include, of course, being able to sit in a classroom with other students and obtain a free, public education. A person who is being denied that opportunity can make an administrative claim and even file suit, alleging that he or she was denied those publicly available services because he or she exhibited a difference from the majority in one of the fundamental characteristics listed in the statute (race, gender, religion etc.)
The service that is being provided, and which the school system is obligated to provide to everyone even if they are different, is education: teachers teaching, books booking, gyms gymming, etc. The dress code, itself, is NOT one of those services they need to provide. However, the school, like other governmental entities, is constitutionally allowed to make rules and regulations of general applicability that have a rational basis, i.e. rules that are not content-based burdens on a particular race, religion, etc., and such rules, including dress codes intended to maintain proper decorum or prevent gang violence, are generally enforceable. But they are NOT enforceable in a particular case if their net effect ON THAT PERSON is to discriminate (in the provision of the "service", e.g. public education) against a particular student who would otherwise be unable to comply with the requirement because of race, religion, disability etc. and who would thus be deprived of a free public education just because of that difference.
That need for individualized accomodation does not invalidate the entire rule, and anti-discrimination does not require that the rule be applied equally even when it has a discriminatory effect; rather, accomodation is necessary, IF that can be done without excessively disrupting the rationale behind the rule in the first place. If the rationale is decorum, and if allowing religious students to wear headgear does not unduly disrupt decorum and a studious atmosphere, then accomodation must be made for those particular needs. However, allowing EVERYONE to claim that they should be allowed to wear hats if ANYONE gets to wear hats, would gut the purpose of the dress code rule, and thus WOULD be an excessive disruption of the legally permissible school rule, and thus is not a required accomodation.
Which gets us back to your original plaint of "why isn't this discrimination too, if they are being treated differently on the basis of their (ir)religion?"
Logically, if the only choices are "true" and "false" and where a single counterexample disproves the rule, you're right. The school IS looking at whether or not a student is religious in determining whether or not that sutdent can wear a hat. But as you noted, that is not "invidious" discrimination because it is not done in contravention of public policy but rather for the purpose of enhancing the goal of the statute -- equal educational opportunity for all -- and also done for the purpose of _protecting_ the right of religious observance, not for the purpose of punishing the observance (or non-observance) of those of other (or no) beliefs. The rule, itself, passes constitutional muster if it is facially neutral.
Keep in mind that, except for the mandated accomodation, the religious kid is ALSO required to comply with the generally applicable dress code; he or she doesn't get carte blanche to wear torn jeans, or tank tops, or flip-flops to school just because of the need for religious accomodation allowing hats.
Take another example: Let's say the school has a facially neutral and reasonable, generally applicable physical education requirement for graduation, that denies a diploma to any student who can't run a quarter mile in, say, two minutes. And we've got a brilliant student in the class, a young Steven Hawking type, who is wheelchair bound and can't run at all. Do we deny this young person a diploma, or make an accomodation by waiving the running requirement to allow him to graduate? And, does the fact that they allowed this junior Einstein to graduate without passing the running test mean that everyone else in the school gets to be a couch potato and skip it too? You know the answer.
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Tuesday, August 14, 2012
When is prior-bad-acts evidence admissible?
On May 13, 7:22 am, s...@panix.com (Seth) wrote:
> In article <tmcb4394b0vro4i5m6rgqbtaa0fhmog...@4ax.com>,
> Daniel R. Reitman <dreit...@spiritone.com> wrote:
>
> >The probable argument in the Spector case is that because Spector's
> >defense is that Lana Clarkson committed suicide, Spector's prior bad
> >acts tend to show the contrary.
>
> I don't see how that works.
>
> _Her_ prior acts (did she attempt suicide before?) should be
> admissible.
They may well be, if they tend to prove the likelihood of suicide.
> But unless there's a claim that he drove her to suicide,
> (and how illegal is that?) what would his prior acts have to do with
> her propensity to commit suicide?
They don't. Rather, they have to do with the prosecution showing his alleged propensity and habit of commiting violence against women he is intimately familiar with. The jury is being called upon to decide beyond a reasonable doubt that murder was the cause of death, and the defense suicide argument is intended to rebut that by raising an alternative cause of death, thereby casting doubt on the likelihood of murder. The reason that prior-bad-act evidence refutes a (possible) defense argument that the death was a suicide is, it adds more weight to the prosecution side of the scale (possible murder), not that it detracts weight from the defense side of the scale (possible suicide). You can tip the balance both ways, by adding to one side or subtracting from the other; but the prosecution is not allowed to bring up a criminal defendant's prior bad acts unless the defendant opens the door by raising a defense (e.g. "it was a suicide") that makes such prior-act evidence do more than simply support an impermissible, unduly prejudicial inference that "if he did it before, he probably did it this time too".
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> In article <tmcb4394b0vro4i5m6rgqbtaa0fhmog...@4ax.com>,
> Daniel R. Reitman <dreit...@spiritone.com> wrote:
>
> >The probable argument in the Spector case is that because Spector's
> >defense is that Lana Clarkson committed suicide, Spector's prior bad
> >acts tend to show the contrary.
>
> I don't see how that works.
>
> _Her_ prior acts (did she attempt suicide before?) should be
> admissible.
They may well be, if they tend to prove the likelihood of suicide.
> But unless there's a claim that he drove her to suicide,
> (and how illegal is that?) what would his prior acts have to do with
> her propensity to commit suicide?
They don't. Rather, they have to do with the prosecution showing his alleged propensity and habit of commiting violence against women he is intimately familiar with. The jury is being called upon to decide beyond a reasonable doubt that murder was the cause of death, and the defense suicide argument is intended to rebut that by raising an alternative cause of death, thereby casting doubt on the likelihood of murder. The reason that prior-bad-act evidence refutes a (possible) defense argument that the death was a suicide is, it adds more weight to the prosecution side of the scale (possible murder), not that it detracts weight from the defense side of the scale (possible suicide). You can tip the balance both ways, by adding to one side or subtracting from the other; but the prosecution is not allowed to bring up a criminal defendant's prior bad acts unless the defendant opens the door by raising a defense (e.g. "it was a suicide") that makes such prior-act evidence do more than simply support an impermissible, unduly prejudicial inference that "if he did it before, he probably did it this time too".
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Do I need Canadian car insurance for a temp move?
On May 13, 7:22 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> Either way, talk to your insurance company.
Absolutely. I'm surprised OP was fishing around here for ideas when the person who would really know the answer is probably already on his speed dial list, his insurance agent. OP raises interesting questions for general discussion but he would be a fool to rely on anything anyone says on this forum if it differs from what his insurer tells him.
> Tell them what you'll be
> doing with the car, and they will tell you how to proceed.
A sage suggestion.
> If you'll
> have the car with you in Canada, you almost certainly have to
> purchase Canadian auto insurance -- ask your Canadian employer for a
> referral to an insurance company.
Here I must disagree, at least in theory, even though Stan's suggestion _may_ work out to be more practical in the end. Virtually all auto insurance policies issued in USA provide "territorial limits of coverage" for the vehicle while it is anywhere in the USA or Canada, so additional insurance is not needed for a temporary visit to Canada by a USA resident vehicle. Mexico is a different story, and it is mandatory to have Mexican insurance in force before entering the country on even a short trip -- that doesn't mean cancelling your USA or Canadian insurance, it means purchasing additional insurance, because the legal system in Mexico is so dissimilar (based on the Napoleonic Code as in most countries of Continental Europe rather than British common law as in USA and Canada) and hence their insurance requirements are incompatible with those of a USA or Canada policy. If you have an accident in Mexico and don't have Mexican insurance, expect to spend some unpleasant time in a Mexican jail.
Besides, it's highly unlikely that the duration of OP's temporary job assignment in Canada (say, frex, June 07 to June 08) corresponds exactly with the effective period and expiration date of his current insurance (which, frex,may still be in force for several months after his move) -- so there will be some overlap. To buy Canadian insurance covering the exact duration of his stay there may mean having duplicate coverage until his old policy expires, unnecessarily so, or else cancelling his existing policy before its natural expiration, which may make it more difficult to obtain new coverage in USA again when he returns (they often give a cheaper rate for someone who has been continually insured in USA for a period of time, even with a different company).
> If the car will remain in the US
> and not be driven, you still need to insure it against theft but
> obviously you can skip the liability and collision coverages.
Maybe the collision coverage, but in most states with mandatory insurance laws, the vehicle must have liability insurance in force at all times or else the owner would have to turn in the license tags and certify that the car is in storage off-road during that period.
> Again,
> your insurance company will set this up for you.
Good suggestion again, Stan, and OP should rely on whatever his insurer tells him he needs to do (unless it seems completely unreasonable, in which case he can of course get a second opinion from a different insurer)
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> Either way, talk to your insurance company.
Absolutely. I'm surprised OP was fishing around here for ideas when the person who would really know the answer is probably already on his speed dial list, his insurance agent. OP raises interesting questions for general discussion but he would be a fool to rely on anything anyone says on this forum if it differs from what his insurer tells him.
> Tell them what you'll be
> doing with the car, and they will tell you how to proceed.
A sage suggestion.
> If you'll
> have the car with you in Canada, you almost certainly have to
> purchase Canadian auto insurance -- ask your Canadian employer for a
> referral to an insurance company.
Here I must disagree, at least in theory, even though Stan's suggestion _may_ work out to be more practical in the end. Virtually all auto insurance policies issued in USA provide "territorial limits of coverage" for the vehicle while it is anywhere in the USA or Canada, so additional insurance is not needed for a temporary visit to Canada by a USA resident vehicle. Mexico is a different story, and it is mandatory to have Mexican insurance in force before entering the country on even a short trip -- that doesn't mean cancelling your USA or Canadian insurance, it means purchasing additional insurance, because the legal system in Mexico is so dissimilar (based on the Napoleonic Code as in most countries of Continental Europe rather than British common law as in USA and Canada) and hence their insurance requirements are incompatible with those of a USA or Canada policy. If you have an accident in Mexico and don't have Mexican insurance, expect to spend some unpleasant time in a Mexican jail.
Besides, it's highly unlikely that the duration of OP's temporary job assignment in Canada (say, frex, June 07 to June 08) corresponds exactly with the effective period and expiration date of his current insurance (which, frex,may still be in force for several months after his move) -- so there will be some overlap. To buy Canadian insurance covering the exact duration of his stay there may mean having duplicate coverage until his old policy expires, unnecessarily so, or else cancelling his existing policy before its natural expiration, which may make it more difficult to obtain new coverage in USA again when he returns (they often give a cheaper rate for someone who has been continually insured in USA for a period of time, even with a different company).
> If the car will remain in the US
> and not be driven, you still need to insure it against theft but
> obviously you can skip the liability and collision coverages.
Maybe the collision coverage, but in most states with mandatory insurance laws, the vehicle must have liability insurance in force at all times or else the owner would have to turn in the license tags and certify that the car is in storage off-road during that period.
> Again,
> your insurance company will set this up for you.
Good suggestion again, Stan, and OP should rely on whatever his insurer tells him he needs to do (unless it seems completely unreasonable, in which case he can of course get a second opinion from a different insurer)
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Garnishment of bank account
On May 11, 8:37 am, "John A. Weeks III" <j...@johnweeks.com> wrote:
> The far more common scenario that I see happening is that a debtor
> will offer to make a $50 payment. So, they give their checking
> account information to the collection agent, and the collection
> agent grabs every last cent in the account. That is what I had
> suspected happened here, and even if that were somehow legal, it
> is dishonorable and immoral to take more than was offered.
If that is what happened, then John is right. The creditor (or his agent, the collection company) has no right to access OP's account, much less to withdraw money from it. except at times and in amounts that OP has specifically authorized them to do so, e.g. by an electronic checking agreement for periodic automatic bill payments. Taking any more than that, or taking it sooner than permitted, could be a crime However, unlike John I don't think this is a very common occurrence, being as it is such an easily traceable form of bank fraud that any perp is almost certain to get caught.
It is possible OP signed off on such permission, to let one bank have complete unfettered access to make withdrawals from his account at a different bank, but I doubt it. However, I also doubt a megafirm like Citibank would risk its reputation and a possible punitive damages award running into the gazillions, if they knowingly took money directly from OP's account at another bank without OP's permission and/or a court order. Attempting to come up with a scenario that would eliminate those two unlikely possibilities is why I originally opted for a third possibility, and concluded that OP most likely was the victim of a legally proper account-garnishment proceeding after Citibank had obtained a default judgment against him on the underlying debt. OP's post was so full of factual holes that all the above is just a guess, which is why I tried to preface my conclusions in an "if X, then Y" form.
A fourth possibility just occurs to me, which is that OP's deposit account may have also been with Citibank, the same outfit he ran up the credit card debt with, and there may be something in the papers he signed to open the account with Citibank (either the deposit account, the credit account, or both) that allowed Citibank to do this. If so, OP still would have no claim against Citibank unless they breached a subsequent settlement agreement in which they agtreed to accept his periodic payments thru the debt reduction counselors OP found on the Web and NOT to pursue any other collection methods. And of course, all the above leaves wide open the possibility OP may have a valid claim against the debt counseling firm, depending on all the pertinent facts.
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> The far more common scenario that I see happening is that a debtor
> will offer to make a $50 payment. So, they give their checking
> account information to the collection agent, and the collection
> agent grabs every last cent in the account. That is what I had
> suspected happened here, and even if that were somehow legal, it
> is dishonorable and immoral to take more than was offered.
If that is what happened, then John is right. The creditor (or his agent, the collection company) has no right to access OP's account, much less to withdraw money from it. except at times and in amounts that OP has specifically authorized them to do so, e.g. by an electronic checking agreement for periodic automatic bill payments. Taking any more than that, or taking it sooner than permitted, could be a crime However, unlike John I don't think this is a very common occurrence, being as it is such an easily traceable form of bank fraud that any perp is almost certain to get caught.
It is possible OP signed off on such permission, to let one bank have complete unfettered access to make withdrawals from his account at a different bank, but I doubt it. However, I also doubt a megafirm like Citibank would risk its reputation and a possible punitive damages award running into the gazillions, if they knowingly took money directly from OP's account at another bank without OP's permission and/or a court order. Attempting to come up with a scenario that would eliminate those two unlikely possibilities is why I originally opted for a third possibility, and concluded that OP most likely was the victim of a legally proper account-garnishment proceeding after Citibank had obtained a default judgment against him on the underlying debt. OP's post was so full of factual holes that all the above is just a guess, which is why I tried to preface my conclusions in an "if X, then Y" form.
A fourth possibility just occurs to me, which is that OP's deposit account may have also been with Citibank, the same outfit he ran up the credit card debt with, and there may be something in the papers he signed to open the account with Citibank (either the deposit account, the credit account, or both) that allowed Citibank to do this. If so, OP still would have no claim against Citibank unless they breached a subsequent settlement agreement in which they agtreed to accept his periodic payments thru the debt reduction counselors OP found on the Web and NOT to pursue any other collection methods. And of course, all the above leaves wide open the possibility OP may have a valid claim against the debt counseling firm, depending on all the pertinent facts.
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Monday, August 13, 2012
ski-area landlord and tenant
On May 9, 7:49 am, esro...@msn.com wrote:
> I have a ski rental at Squaw Valley which is leased to skiers each
> year for 4 or 5 months in the winter, fully furnished.
You mean a single tenant has a lease for the whole season, or is this more like a motel where guests stay just a few days and then a new batch moves in?
Probably the former, since if it were the latter, you would have to have your own maid service to change the linens between tenants, and the vacating tenant would know that he had no obligation to clean the sheets for you, just like in a hotel.
> This year my
> tenant moved out, when lease was over, with 8 sets of bedding which is
> for the four beds. The bedding was returned 10 days later to my home
> in the Bay Area after it was cleaned.
Sounds like they were trying to do the nice thing, cleaning the linens after living on them for 5 months, instead of leaving you with the dirty mess.
> My question is: as the rental
> was not rentable for those 10 days plus my time to return the bedding
> to the rental, does the tenant owe rent for those days?
Well, was this a 5-month-at-a-time, once-per-season rental, or a "hot bed" inn? Makes a difference. If you weren't going to be able to rent it anyway at the end of the season, and especially if you had no one waiting outside the door to be provided with a furnished place to rent, I don't think you have much of a case. In any event, you would have an obligation to "mitigate damages", which means, if you stand to lose (say) a thousand bucks a week in rent for this place, you can't just claim that as your loss, but you have to go out and purchase replacement linens for maybe a hundred bucks so that the new tenant can move in. The lower figure, not the higher, is your measure of damages, if that.
> The lease says
> that tenant must return the rental ready to rent in same condition
> that it was in when lease commensed.
Sounds like that's what this tenant was trying in good faith to do.
If you had not informed the vacating tenant that he needed to leave all the contents in place because you had a new tenant coming in right after him, I don't see that you have much of a chance of winning such a case.
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> I have a ski rental at Squaw Valley which is leased to skiers each
> year for 4 or 5 months in the winter, fully furnished.
You mean a single tenant has a lease for the whole season, or is this more like a motel where guests stay just a few days and then a new batch moves in?
Probably the former, since if it were the latter, you would have to have your own maid service to change the linens between tenants, and the vacating tenant would know that he had no obligation to clean the sheets for you, just like in a hotel.
> This year my
> tenant moved out, when lease was over, with 8 sets of bedding which is
> for the four beds. The bedding was returned 10 days later to my home
> in the Bay Area after it was cleaned.
Sounds like they were trying to do the nice thing, cleaning the linens after living on them for 5 months, instead of leaving you with the dirty mess.
> My question is: as the rental
> was not rentable for those 10 days plus my time to return the bedding
> to the rental, does the tenant owe rent for those days?
Well, was this a 5-month-at-a-time, once-per-season rental, or a "hot bed" inn? Makes a difference. If you weren't going to be able to rent it anyway at the end of the season, and especially if you had no one waiting outside the door to be provided with a furnished place to rent, I don't think you have much of a case. In any event, you would have an obligation to "mitigate damages", which means, if you stand to lose (say) a thousand bucks a week in rent for this place, you can't just claim that as your loss, but you have to go out and purchase replacement linens for maybe a hundred bucks so that the new tenant can move in. The lower figure, not the higher, is your measure of damages, if that.
> The lease says
> that tenant must return the rental ready to rent in same condition
> that it was in when lease commensed.
Sounds like that's what this tenant was trying in good faith to do.
If you had not informed the vacating tenant that he needed to leave all the contents in place because you had a new tenant coming in right after him, I don't see that you have much of a chance of winning such a case.
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Cop's notes in evidence, part 2
On May 9, 7:49 am, David Chesler <ches...@post.harvard.edu> wrote:
> I've won two traffic hearings on what a magistrate called "a
> technicality" -- my first question to the cop was "Do you recall the
> events of that day." When he said he didn't, I asked for the ticket to
> be dismissed because I wouldn't be able to question him.
That wouldn't fly in MD. I also suspect it wouldn't fly in MA if you had had a magistrate who was a competent lawyer; many of the traffic ticket courts are run in some states by officials who need not even be lawyers and thus may have no idea what is permitted and what isn't by way of hearsay evidence. Maybe he just liked you that day.
The cop should have been permitted to testify from his notes even if he had no present recollection of the day he ticketed you, since I doubt cops in MA have any better memory cells in their brains than do cops, or civilians, anywhere else. Otherwise, if word gets around (as I'm sure you will help it do), you may have just discovered the "magic words" that will get virtually every MA traffic ticket dismissed; the cops may as well not even bother to write them up any more, since they will be wasting their time. But IMO it's more likely you got a dumb and/or driver-friendly judge that day.
> (In the most recent case, I was going to ask him first why he checked
> "warning" but then put a fine amount;
The answer to that is easy. Something about your manner probably made him change his mind and issue a violation ticket instead of just a warning ticket. Frankly, he doesn't need a reason; it could have just been a slip of the pen first time around when he checked "warning", and that does not invalidate your ticket.
> then I was going to ask him if he
> had actually observed me driving.
"Observed" could mean "saw", but it can also mean "heard", or "smelled", or "tasted", or "felt" (physically, not psychologically) e.g. if you were sticking what felt like a gun in a witness's back and said "stick em up", he could testify to that even if he never saw the gun.
> He had been running radar in the
> opposite direction, and I was trying to improve my driving per a Bob
> Bondurant book by taking advantage of the fact that the 4 lane road was
> down to 2 lanes with raised manholes, and I was practicing quick
> reactions.
What, you were running a slalom around the manholes like on a Gymkhana racecourse? If you were planning to actually testify to that, IMO you were lucky the case got dismissed before you said that. Sounds like reckless driving to me, if it's on an open public street.
> At the scene he said "For your tires to squeal like that you
> must have been speeding."
In MD he wouldn't even have to do that; it is against the law to drive on a public road in such a manner as to cause your tires to squeal, whether due to speed or to rapid turning, and you would most likely be ticketed for violating that statute.
> A later question might have been if it was
> his expert testimony that it was impossible for tires to squeal at
> speeds under the 35mph posted limit.
You probably would have had him there, since it is not raw speed per se, but rather sufficient acceleration (or deceleration) to cause the tires to lose traction (sideways or straight ahead), that causes squeal. A dragster doing a burnout at the Xmas tree is going zero mph initially while laying rubber on the road and making lots of noise but is accelerating at very high initial G's from that standing start. In fact even the dragster is probably burning more rubber below 35 mph than he is once his slingshot gets above that speed and his tires have better traction.
> The earlier case had to do with an
> exit ramp in the toll plaza for the Bronx-Whitestone Bridge which
> allowed one to exit and enter and bypass some of the queue. It was
> signed "No re-entrance" which is factually false, but in any case I
> exited and drove around the block.
There's a "no re-entry northbound" sign at a freeway exit near here leading to a suburban development that only has an exit ramp for northbound traffic, and an entrance ramp on the southbound side. Folks living in that development who want to get in their cars and go north have to go to the other end of the development to find a freeway on-ramp that gets them onto the northbound lanes of the freeway. If you don't live there and get off anyway, you can get back on in the opposite direction, or you have to drive thru the neighborhood to find another northbound on-ramp. IMO that sign doesn't mean that re-entrance northbound at that location is prohibited, rather it means that re-entrance northbound at that location (if you want to do so, and exit in disregard of the sign) is impossible (without driving around on local streets to find another entrance). If I read your post right, your situation was the same.
> The cop asked why, and I was going
> to ask why he asked why, since apparently there was a right answer that
> would have spared me a ticket, so therefore the ambiguous sign did not
> prohibit re-entry.
IMO you don't need such a convoluted argument to get to the point that the sign was informative rather than prohibatory in its purpose.
> A comparable sign in Ft. Lee, NJ, before the George
> Washington Bridge doesn't prohibit re-entry, but does warn that you'll
> be driving on local streets for about a mile before finding the entrance
> which is further away from the bridge than the exit.)
Right. IMO you could argue, all that the signs (both of them) were saying is, "Warning! This is not a complete 4-way cloverleaf allowing re-entrance in any direction but only a partial interchange, so if you get off here, you can't get back on going the same direction and resume your journey." The sign was posted for information purposes, to assist drivers who may otherwise be getting off in an area where they aren't able to re-access the thruway without navigating local roads for awhile, rather than as a prohibition on re-entry for those who had no business in the neighborhood other than to drive around the block.
Also IMO you may just have run up against a stupid cop. Unless, of course, you are leaving something out about the physical arrangement of this interchange, and the authorities were purposely instructed to crack down on a known problem of drivers like yourself taking an unapproved "short cut" to, as you said, avoid the queue, thereby messing up traffic for the responsible drivers who were waiting in the queue and taking their turn.
Or not. I'm not one of those guys who likes to wait in a slow-moving or stopped line of traffic like a lemming if there is a perfectly usable, unoccupied lane adjacent, that would allow me to gain some distance before having to merge back into the waiting line. But only if that can be done legally, of course; the dividing line between "commuting smart" and "driving like a maniac" is very fact-specific and depends on the actual arrangement and signage of the lanes in question as well as local law. If a cop thinks you are on the wrong side of that line, you will be ticketed. And if a judge agrees, you will be convicted.
So you lucked out both times, David.
--
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've won two traffic hearings on what a magistrate called "a
> technicality" -- my first question to the cop was "Do you recall the
> events of that day." When he said he didn't, I asked for the ticket to
> be dismissed because I wouldn't be able to question him.
That wouldn't fly in MD. I also suspect it wouldn't fly in MA if you had had a magistrate who was a competent lawyer; many of the traffic ticket courts are run in some states by officials who need not even be lawyers and thus may have no idea what is permitted and what isn't by way of hearsay evidence. Maybe he just liked you that day.
The cop should have been permitted to testify from his notes even if he had no present recollection of the day he ticketed you, since I doubt cops in MA have any better memory cells in their brains than do cops, or civilians, anywhere else. Otherwise, if word gets around (as I'm sure you will help it do), you may have just discovered the "magic words" that will get virtually every MA traffic ticket dismissed; the cops may as well not even bother to write them up any more, since they will be wasting their time. But IMO it's more likely you got a dumb and/or driver-friendly judge that day.
> (In the most recent case, I was going to ask him first why he checked
> "warning" but then put a fine amount;
The answer to that is easy. Something about your manner probably made him change his mind and issue a violation ticket instead of just a warning ticket. Frankly, he doesn't need a reason; it could have just been a slip of the pen first time around when he checked "warning", and that does not invalidate your ticket.
> then I was going to ask him if he
> had actually observed me driving.
"Observed" could mean "saw", but it can also mean "heard", or "smelled", or "tasted", or "felt" (physically, not psychologically) e.g. if you were sticking what felt like a gun in a witness's back and said "stick em up", he could testify to that even if he never saw the gun.
> He had been running radar in the
> opposite direction, and I was trying to improve my driving per a Bob
> Bondurant book by taking advantage of the fact that the 4 lane road was
> down to 2 lanes with raised manholes, and I was practicing quick
> reactions.
What, you were running a slalom around the manholes like on a Gymkhana racecourse? If you were planning to actually testify to that, IMO you were lucky the case got dismissed before you said that. Sounds like reckless driving to me, if it's on an open public street.
> At the scene he said "For your tires to squeal like that you
> must have been speeding."
In MD he wouldn't even have to do that; it is against the law to drive on a public road in such a manner as to cause your tires to squeal, whether due to speed or to rapid turning, and you would most likely be ticketed for violating that statute.
> A later question might have been if it was
> his expert testimony that it was impossible for tires to squeal at
> speeds under the 35mph posted limit.
You probably would have had him there, since it is not raw speed per se, but rather sufficient acceleration (or deceleration) to cause the tires to lose traction (sideways or straight ahead), that causes squeal. A dragster doing a burnout at the Xmas tree is going zero mph initially while laying rubber on the road and making lots of noise but is accelerating at very high initial G's from that standing start. In fact even the dragster is probably burning more rubber below 35 mph than he is once his slingshot gets above that speed and his tires have better traction.
> The earlier case had to do with an
> exit ramp in the toll plaza for the Bronx-Whitestone Bridge which
> allowed one to exit and enter and bypass some of the queue. It was
> signed "No re-entrance" which is factually false, but in any case I
> exited and drove around the block.
There's a "no re-entry northbound" sign at a freeway exit near here leading to a suburban development that only has an exit ramp for northbound traffic, and an entrance ramp on the southbound side. Folks living in that development who want to get in their cars and go north have to go to the other end of the development to find a freeway on-ramp that gets them onto the northbound lanes of the freeway. If you don't live there and get off anyway, you can get back on in the opposite direction, or you have to drive thru the neighborhood to find another northbound on-ramp. IMO that sign doesn't mean that re-entrance northbound at that location is prohibited, rather it means that re-entrance northbound at that location (if you want to do so, and exit in disregard of the sign) is impossible (without driving around on local streets to find another entrance). If I read your post right, your situation was the same.
> The cop asked why, and I was going
> to ask why he asked why, since apparently there was a right answer that
> would have spared me a ticket, so therefore the ambiguous sign did not
> prohibit re-entry.
IMO you don't need such a convoluted argument to get to the point that the sign was informative rather than prohibatory in its purpose.
> A comparable sign in Ft. Lee, NJ, before the George
> Washington Bridge doesn't prohibit re-entry, but does warn that you'll
> be driving on local streets for about a mile before finding the entrance
> which is further away from the bridge than the exit.)
Right. IMO you could argue, all that the signs (both of them) were saying is, "Warning! This is not a complete 4-way cloverleaf allowing re-entrance in any direction but only a partial interchange, so if you get off here, you can't get back on going the same direction and resume your journey." The sign was posted for information purposes, to assist drivers who may otherwise be getting off in an area where they aren't able to re-access the thruway without navigating local roads for awhile, rather than as a prohibition on re-entry for those who had no business in the neighborhood other than to drive around the block.
Also IMO you may just have run up against a stupid cop. Unless, of course, you are leaving something out about the physical arrangement of this interchange, and the authorities were purposely instructed to crack down on a known problem of drivers like yourself taking an unapproved "short cut" to, as you said, avoid the queue, thereby messing up traffic for the responsible drivers who were waiting in the queue and taking their turn.
Or not. I'm not one of those guys who likes to wait in a slow-moving or stopped line of traffic like a lemming if there is a perfectly usable, unoccupied lane adjacent, that would allow me to gain some distance before having to merge back into the waiting line. But only if that can be done legally, of course; the dividing line between "commuting smart" and "driving like a maniac" is very fact-specific and depends on the actual arrangement and signage of the lanes in question as well as local law. If a cop thinks you are on the wrong side of that line, you will be ticketed. And if a judge agrees, you will be convicted.
So you lucked out both times, David.
--
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
School religious accommodation
On May 9, 7:48 am, David Chesler <ches...@post.harvard.edu> wrote:
> What is the current thinking on the conflict between accommodation and
> requirements that public schools not discriminate on religious, or in
> most cases, gender bases?
They must do both: accomodate religious needs where that can be done without undue disruption, AND protect against discrimination on religous or gender grounds. But obviously, that wasn't your question: you want to know _how_ they can do both, where those requirements apparently conflict.
> For instance, a public elementary school has a "No hats" policy. Set
> aside whether the policy flies under Tinker, or under its state's
> "Student Free Expression" statute (Massachusetts - MGL C. 71 s. 82). It
> is likely not a safety issue, because the school from time to time
> allows students to wear hats, either if they've donated to a particular
> teacher's favorite charity for the privilege, or on designated "Silly
> Hat" days.
Yes, we'll put that aside for now, but keeping in mind that they _do_ make exceptions to the policy for various reasons, which shows that it is not unduly burdensome to make such an accomodation where needed for other reasons.
> The school makes an exception to accommodate a Moslem girl who for
> religious or cultural reasons wears a headscarf.
Since the school is willing to make other exceptions to the no-hat policy, it is not an undue burden on the school system to allow this too. Therefore, they are required by law to make this accomodation.
> There are no observant
> Jews in this school.
All that means is, they have never been asked to accomodate a Jewish boy wanting to wear a yarmulke (religious skullcap). But if they were, the same result should ensue.
> Suppose a student wishes to wear a cap, because the overhead
> fluorescent lights give him a headache.
That is not a religious reason, and so they are not required to accomodate that request. OTOH they may have to do so if the student comes in with a doctor's note confirming that he is medically afflicted by direct flourescent light and requesting them to accomodate his DISABILITY. It would have to rise to that level to impose a legal duty on the school system to accomodate him under the Americans with Disabilities Act, or if the student (thru his parents and lawyer) showed that he needed accomodation as part of an Individualized Educational Plan (IEP) for a student with special needs under the laws requiring equal educational opportunity for special needs students.
> It seems that if he is being treated differently on account that he's
> a non-Moslem boy rather than an observant Moslem girl.
That's a very superficial reading of the situation that has nothing to do with the reasons for either decision. He's being treated just like every other normal kid in the school unless he can come up with either a religious or a disability reason why his special needs should be accomodated, if that can be done without undue disruption to the school.
> In addition (now suggesting Tinker or that statute), does the fact the
> school finds indoor hat-wearing for other than religious reasons to be
> disrespectful make it expressive? That is, the school holds that a
> student who is wearing a hat for his own reasons is expressing
> disrespect by that act?
IIRC the reason schools started banning hats was that they were being used as gang symbols and could (in some cases actually did) lead to violent incidents between rival gangs (or attacks on innocent victims who cluelessly wore symbols "belonging" to some gang they had nothing to do with). In that case, the schools can limit free expression of what amount to symbolic "fighting words" just as they can prevent use of inflammatory racial epithets, etc.
--
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 is the current thinking on the conflict between accommodation and
> requirements that public schools not discriminate on religious, or in
> most cases, gender bases?
They must do both: accomodate religious needs where that can be done without undue disruption, AND protect against discrimination on religous or gender grounds. But obviously, that wasn't your question: you want to know _how_ they can do both, where those requirements apparently conflict.
> For instance, a public elementary school has a "No hats" policy. Set
> aside whether the policy flies under Tinker, or under its state's
> "Student Free Expression" statute (Massachusetts - MGL C. 71 s. 82). It
> is likely not a safety issue, because the school from time to time
> allows students to wear hats, either if they've donated to a particular
> teacher's favorite charity for the privilege, or on designated "Silly
> Hat" days.
Yes, we'll put that aside for now, but keeping in mind that they _do_ make exceptions to the policy for various reasons, which shows that it is not unduly burdensome to make such an accomodation where needed for other reasons.
> The school makes an exception to accommodate a Moslem girl who for
> religious or cultural reasons wears a headscarf.
Since the school is willing to make other exceptions to the no-hat policy, it is not an undue burden on the school system to allow this too. Therefore, they are required by law to make this accomodation.
> There are no observant
> Jews in this school.
All that means is, they have never been asked to accomodate a Jewish boy wanting to wear a yarmulke (religious skullcap). But if they were, the same result should ensue.
> Suppose a student wishes to wear a cap, because the overhead
> fluorescent lights give him a headache.
That is not a religious reason, and so they are not required to accomodate that request. OTOH they may have to do so if the student comes in with a doctor's note confirming that he is medically afflicted by direct flourescent light and requesting them to accomodate his DISABILITY. It would have to rise to that level to impose a legal duty on the school system to accomodate him under the Americans with Disabilities Act, or if the student (thru his parents and lawyer) showed that he needed accomodation as part of an Individualized Educational Plan (IEP) for a student with special needs under the laws requiring equal educational opportunity for special needs students.
> It seems that if he is being treated differently on account that he's
> a non-Moslem boy rather than an observant Moslem girl.
That's a very superficial reading of the situation that has nothing to do with the reasons for either decision. He's being treated just like every other normal kid in the school unless he can come up with either a religious or a disability reason why his special needs should be accomodated, if that can be done without undue disruption to the school.
> In addition (now suggesting Tinker or that statute), does the fact the
> school finds indoor hat-wearing for other than religious reasons to be
> disrespectful make it expressive? That is, the school holds that a
> student who is wearing a hat for his own reasons is expressing
> disrespect by that act?
IIRC the reason schools started banning hats was that they were being used as gang symbols and could (in some cases actually did) lead to violent incidents between rival gangs (or attacks on innocent victims who cluelessly wore symbols "belonging" to some gang they had nothing to do with). In that case, the schools can limit free expression of what amount to symbolic "fighting words" just as they can prevent use of inflammatory racial epithets, etc.
--
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
Justification and excuse as defenses to criminal charge
On May 9, 7:48 am, dr_phill...@yahoo.com wrote:
> What is the legal term for when you break the law in a situation
> where it is beneficial to yourself and society to do so?
>
> An example would be driving above the speed limit in a medical
> emergency or driving below the minimum speed limit during
> inclement weather conditions.
I believe the word you are looking for is either "justification" or "excuse". If the court, at trial, buys either defense, then the act was _not_ in fact against the law, and the verdict will be "not guilty". So I assume you mean, what is the term for committing an act that would _otherwise_ be illegal except for the applicability of one of those defenses?
An act that would otherwise be illegal is "justified" if the person who did the act did so intentionally, but had a higher legal reason specifically allowing him to do so. Frex, a cop shooting a perp who drew a weapon when the cop asked him to halt, would probably be found to have committed "justifiable homicide", which is not a crime.
An act that would otherwise be illegal is "excused" if the person who did the act simply could not avoid doing so in the course of doing something else the actor was legally permitted, or better, required to do. Frex, your driver who is going faster than the speed limit in order to save a life while rushing to the hospital. A judge would likely "excuse" his violation on grounds that the medical emergency took precedence, assuming the driver still tried to do so as safely as possible. There's no excuse for driving recklessly in a manner that is just as likely to take a life as to save one.
Your other example, driving slower than the minimum speed due to inclement weather, would probably not need either of those defenses. AFAIK the idea of minimum speed only applies on limited-access superhighways and, unless your state's law is very poorly drafted, the law only requires drivers to maintain at least that minimum speed "where conditions permit". So, it would not even be a prima facie violation of that law to drive slower than the minimum limit in a blizzard, or, much more commonly, in heavy traffic which is moving slower than the limit. Otherwise, several thousand drivers on the Washington Beltway would be ticketed each morning and afternoon for failing to keep up the minimum speed while sitting there idling in rush hour. Actually, that's a nice thought. 8*)
--
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 is the legal term for when you break the law in a situation
> where it is beneficial to yourself and society to do so?
>
> An example would be driving above the speed limit in a medical
> emergency or driving below the minimum speed limit during
> inclement weather conditions.
I believe the word you are looking for is either "justification" or "excuse". If the court, at trial, buys either defense, then the act was _not_ in fact against the law, and the verdict will be "not guilty". So I assume you mean, what is the term for committing an act that would _otherwise_ be illegal except for the applicability of one of those defenses?
An act that would otherwise be illegal is "justified" if the person who did the act did so intentionally, but had a higher legal reason specifically allowing him to do so. Frex, a cop shooting a perp who drew a weapon when the cop asked him to halt, would probably be found to have committed "justifiable homicide", which is not a crime.
An act that would otherwise be illegal is "excused" if the person who did the act simply could not avoid doing so in the course of doing something else the actor was legally permitted, or better, required to do. Frex, your driver who is going faster than the speed limit in order to save a life while rushing to the hospital. A judge would likely "excuse" his violation on grounds that the medical emergency took precedence, assuming the driver still tried to do so as safely as possible. There's no excuse for driving recklessly in a manner that is just as likely to take a life as to save one.
Your other example, driving slower than the minimum speed due to inclement weather, would probably not need either of those defenses. AFAIK the idea of minimum speed only applies on limited-access superhighways and, unless your state's law is very poorly drafted, the law only requires drivers to maintain at least that minimum speed "where conditions permit". So, it would not even be a prima facie violation of that law to drive slower than the minimum limit in a blizzard, or, much more commonly, in heavy traffic which is moving slower than the limit. Otherwise, several thousand drivers on the Washington Beltway would be ticketed each morning and afternoon for failing to keep up the minimum speed while sitting there idling in rush hour. Actually, that's a nice thought. 8*)
--
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
Garnishing a bank account
On May 9, 7:48 am, "John A. Weeks III" <j...@johnweeks.com> wrote:
> In article <b42u3397eboiq4mgq9jjtdtjfmrifi5...@4ax.com>,
>
> raji.pr...@gmail.com wrote:
> > Is this legal? I was never notified that my
> > accounts would be garnished.
The notice of garnishment does not get served on the debtor, it gets served on the person who allegedly is holding property belonging to the debtor. The debtor only finds out about it AFTER the property has been garnished. Otherwise, a garnishment wouldn't serve much of a purpose; a debtor with "advance notice" that the bank was going to be served with a garnishment could simply clean out the account himself before the garnishment is served on the bank, leaving the creditor with an empty bag and having to chase down debtor's assets all over again. So yes, it is fair.
> I don't think that you were garnished. That normally happens on
> your paycheck.
Well, in MD the same word, garnishment, is used to refer both to a post-judgment attachment of an income stream (whether it is a salary or wage, or contract amounts due to the debtor from a third party) AND to attachment of any other property belonging to the debtor and held by a third party, such as bank accounts. What distinguishes a garnishment from an attachment is that a writ of garnishment is directed to and served on a third party that allegedly holds property belonging to the debtor, whereas a writ of attachment is served directly on the debtor, such as by nailing the notice of lien and sheriff's sale on the door of debtor's house, or authorizing the sheriff to stick his hand in the till of debtor's business to get cash in satisfaction of the judgment debt.
> What happened is that the collection agency some
> how got your checking account number, and the sucked it dry.
Yep. Which, if they did not engage in any illegal hanky-panky to obtain the account number, is perfectly legal. In fact, one common tactic of creditors to collect a judgment debt is to serve writs of garnishment on ALL local banks that they suspect MAY be holding property belonging to the debtor. You don't even need to know the person's account number, so long as you definitively identify the person whose property is being sought. It is then the obligation of the person served with the writ of garnishment (the bank, the purported employer, whoever) to either cough up any property he is holding that belongs to the debtor, OR to file an answer alleging that he has no such property in his control, which allegation can be contested in an evidentiary hearing in front of a judge if the creditor doesn't believe the answer.
> While this is wrong, wrong, wrong, there is almost nothing that
> you can do.
IMO John is incorrect on both counts. There is nothing wrong with what the creditor did, if it was indeed a post-judgment garnishment, but OP _may_ have legal rights against the alleged "debt consultants" he found on the Web who promised to "take care of it" for him. He had sent them all his documents AND was making substantial monthly payments to that outfit, not directly to Citibank. While it may not be the only possible conclusion, I strongly suspect OP was ripped off by a scam operator who kept his money, made empty promises, and then was nowhere to be found when the real creditor (Citibank) got fed up with waiting and garnished OP's bank account.
OP should indeed consult a lawyer specializing in consumer debt protection immediately -- live and in person, not over the web, and make sure he's a "real lawyer" -- and tell him the full story. If there is a chance of going after the webscammers to get justice, he can probably find an attorney willing to do that on a contingency basis. Throwing in punitive damages for fraud, etc., this case could be worth a LOT of money, much more than the #38k original debt.
> You are not in a financial position where you can
> hire a good attorney to go after them.
He is, if the lawyer will take the case on contingency. That's the beauty and vital necessity of contingent compensation, it lets even the penniless person who has been wronged obtain full justice with the help of a top-notch attorney.
> If if you do, you still
> owe the money, so they are likely going to get to keep it to
> pay the huge debt.
I agree there is probably nothing that can be done directly to get the money back from Citibank, IF it is shown that Citibank had received nothing from the previous payments OP had made to the webscammers and had made no installment-payment deal with them to settle the debt.
> This does happen a lot. The industry of debt collection and
> debt reduction/credit repair is full of people who are less
> than honorable and who will do something like this to get
> anything out of you to repay the debt.
I think you're confusing the creditor and the scammer. There is no dispute that OP owed $38k to Citibank; they got a judgment against him for that amount. Citibank had no legal obligation whatsoever to agree to accept less; but _if_ they did so, the written agreement should of course have precluded other collection methods so long as OP kept up the payments. We have no idea whether Citibank even knew of the "deal" OP thought he had worked out, thru the webscam outfit.
OTOH I fully agree with you that there are unscrupulous operators who take advantage of those in debt, and "buyer beware" is the order of the day. If it turns out that OP got taken for a ride by the web-based company he contacted, he may or may not be able to get any money back from them, even if what they did was criminal as well as tortious, because he may not be able to find them. That's one of the things that attracts sleazy businesses to use the web as their contact with their marks: if the heat is on, they can disappear without much of a trace. But if there _is_ any chance of holding them to account, OP should be able to find a lawyer who can help him do that, for a contingent fee.
Good luck to OP,
--
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 article <b42u3397eboiq4mgq9jjtdtjfmrifi5...@4ax.com>,
>
> raji.pr...@gmail.com wrote:
> > Is this legal? I was never notified that my
> > accounts would be garnished.
The notice of garnishment does not get served on the debtor, it gets served on the person who allegedly is holding property belonging to the debtor. The debtor only finds out about it AFTER the property has been garnished. Otherwise, a garnishment wouldn't serve much of a purpose; a debtor with "advance notice" that the bank was going to be served with a garnishment could simply clean out the account himself before the garnishment is served on the bank, leaving the creditor with an empty bag and having to chase down debtor's assets all over again. So yes, it is fair.
> I don't think that you were garnished. That normally happens on
> your paycheck.
Well, in MD the same word, garnishment, is used to refer both to a post-judgment attachment of an income stream (whether it is a salary or wage, or contract amounts due to the debtor from a third party) AND to attachment of any other property belonging to the debtor and held by a third party, such as bank accounts. What distinguishes a garnishment from an attachment is that a writ of garnishment is directed to and served on a third party that allegedly holds property belonging to the debtor, whereas a writ of attachment is served directly on the debtor, such as by nailing the notice of lien and sheriff's sale on the door of debtor's house, or authorizing the sheriff to stick his hand in the till of debtor's business to get cash in satisfaction of the judgment debt.
> What happened is that the collection agency some
> how got your checking account number, and the sucked it dry.
Yep. Which, if they did not engage in any illegal hanky-panky to obtain the account number, is perfectly legal. In fact, one common tactic of creditors to collect a judgment debt is to serve writs of garnishment on ALL local banks that they suspect MAY be holding property belonging to the debtor. You don't even need to know the person's account number, so long as you definitively identify the person whose property is being sought. It is then the obligation of the person served with the writ of garnishment (the bank, the purported employer, whoever) to either cough up any property he is holding that belongs to the debtor, OR to file an answer alleging that he has no such property in his control, which allegation can be contested in an evidentiary hearing in front of a judge if the creditor doesn't believe the answer.
> While this is wrong, wrong, wrong, there is almost nothing that
> you can do.
IMO John is incorrect on both counts. There is nothing wrong with what the creditor did, if it was indeed a post-judgment garnishment, but OP _may_ have legal rights against the alleged "debt consultants" he found on the Web who promised to "take care of it" for him. He had sent them all his documents AND was making substantial monthly payments to that outfit, not directly to Citibank. While it may not be the only possible conclusion, I strongly suspect OP was ripped off by a scam operator who kept his money, made empty promises, and then was nowhere to be found when the real creditor (Citibank) got fed up with waiting and garnished OP's bank account.
OP should indeed consult a lawyer specializing in consumer debt protection immediately -- live and in person, not over the web, and make sure he's a "real lawyer" -- and tell him the full story. If there is a chance of going after the webscammers to get justice, he can probably find an attorney willing to do that on a contingency basis. Throwing in punitive damages for fraud, etc., this case could be worth a LOT of money, much more than the #38k original debt.
> You are not in a financial position where you can
> hire a good attorney to go after them.
He is, if the lawyer will take the case on contingency. That's the beauty and vital necessity of contingent compensation, it lets even the penniless person who has been wronged obtain full justice with the help of a top-notch attorney.
> If if you do, you still
> owe the money, so they are likely going to get to keep it to
> pay the huge debt.
I agree there is probably nothing that can be done directly to get the money back from Citibank, IF it is shown that Citibank had received nothing from the previous payments OP had made to the webscammers and had made no installment-payment deal with them to settle the debt.
> This does happen a lot. The industry of debt collection and
> debt reduction/credit repair is full of people who are less
> than honorable and who will do something like this to get
> anything out of you to repay the debt.
I think you're confusing the creditor and the scammer. There is no dispute that OP owed $38k to Citibank; they got a judgment against him for that amount. Citibank had no legal obligation whatsoever to agree to accept less; but _if_ they did so, the written agreement should of course have precluded other collection methods so long as OP kept up the payments. We have no idea whether Citibank even knew of the "deal" OP thought he had worked out, thru the webscam outfit.
OTOH I fully agree with you that there are unscrupulous operators who take advantage of those in debt, and "buyer beware" is the order of the day. If it turns out that OP got taken for a ride by the web-based company he contacted, he may or may not be able to get any money back from them, even if what they did was criminal as well as tortious, because he may not be able to find them. That's one of the things that attracts sleazy businesses to use the web as their contact with their marks: if the heat is on, they can disappear without much of a trace. But if there _is_ any chance of holding them to account, OP should be able to find a lawyer who can help him do that, for a contingent fee.
Good luck to OP,
--
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
Collision claim reporting
On May 7, 7:08 am, j...@yahoo.com wrote:
> I live in Massachusetts.
> On saturday afternoon, while I was driving straight down the road, I
> happened to hear a big clump like I ran over something.
>
> I stopped got out and saw it was a piece of round metal on the road.
Huh? You mean like a hubcap? You make it sound like you ran over the piece of metal, not like your car collided with another as I understand from later in your post. You need to get a consistent narrative together based on what you _do_ remember, and tell that to your insurance company.
Frankly, telling them something like the confused mishmosh you posted here is likely to make them not believe you, and wind up having them blame you for the collision, especially if the other driver cooks up a good, consistent story (even if it is a lie). Get your story straight.
> I am not sure if it was mine or the other car.
Still? Do you really mean to say you can't tell, after having a couple days to look at it, whether or not any part whatsoever fell off of your car?? Did you (or the other driver) happen to _save_ the piece of metal you ran over, as evidence? I suppose not. But it wouldn't hurt to go back to the scene and look to see if it was still there, if that's not too inconvenient.
> The other car driver
> stepped out. I think he was moving out of parking when I was driving
> and somehow this happened.
You "think"? On what do you base that conclusion? When the two of you got out of your cars to talk, was his car still mostly within the parking space, with its front end nosing into traffic where it could have collided with your passing car? Or was it completely in a travel lane and pointed in the right direction? If so, did the collision happen in his lane, or yours (if more than one lane)? You've got to get all these facts straight or you will be helpless to help yourself by countering whatever the other guy says.
> Both of us had no idea what happened.
Then you're not going to make a very good witness in your own behalf unless you do some hard thinking and figure out for yourself what must have happened. There's no one else besides the two drivers who can do that.
And I wouldn't be too sure the other guy hasn't come up with a consistent and believable story by now that exonerates him and blames you.
>From the look of it, he had scratches on his front right wheel and
> mine on my front left bumper. I asked if he wanted to make a report of
> it he said no.
That doesnt keep _you_ from making a report. Which you should do, now, to your insurance company.
> He asked for my insurance information, I gave it to him.
You were obligated by law to do that; both drivers were, regardless of who is later found to be at fault.
> When I asked for his, he said he has no insurance. I managed to
> take a few pictures of his car, obviously no damage.
How convenient. Those photos are valuable evidence in your behalf so guard them carefully. You may want to scan them, or make color photocopies at your local copy center, to give to your insurance company.
> When I left the sence he called me to report damaged to his rear
> window (right) and said I must pay for it. This was after we both
> left the scene.
Do your photos show no damage in that area? Or did you not take any pictures of that area?
If the other guy was pulling out of a parallel parking space, which I presume would place him to your right as you drove by (unless it was a one-way street, or angle parking) how on earth could the collision have caused any damage at all to his car's _right_ side?
> No police report because he did not want to call (he does not have
> insurance on the car, it was his wife's car).
Did you ask whether his WIFE has insurance? That's what matters; in most states the primary obligation to have insurance runs with the car owner, not the driver.
You state the lack of insurance parenthetically, as if that were the reason he did not want to call the cops. And you agreed with that?? Friend, you have NO obligation to protect someone else who is in violation of the law by not having insurance, especially where that person has already harmed YOUR interests by colliding with you. You need to grow a backbone and stand up for your own rights. You should have insisted on calling the cops, unless the other driver willingly gave you all the required information (driver's license to show his number, name and address; car tag number and state; car registration showing owner name and address; insurance card showing policy number and name of policyholder).
I'm sure you were feeling flustered at the scene, but you still have to get your senses together enough to ask the questions you need to know to protect yourself. That's something any driver should be prepared, in advance, to know he has to ask, because you're not going to have the time or requisite calm state of mind to figure it out for yourself _after_ a collision happens.
> But he got hold of my
> insurance information because I gave it to him, he however did not
> give me his, he said that he's not insured.
You said that already. Did you happen to write down his OTHER identifying information, from his driver's license and registration card? Don't tell me you didn't ask to see his license and registration... If you didn't, you have no proof the guy was who he says he is, or who owns the car. Did you at least write down the license tag number on his car? That still wouldn't help you, e.g. if it was a stolen car with stolen tags etc. For next time, if you didn't this time, you need to ask to see the actual paperwork (driver's license and car registration) and if he refuses, then DO call the cops, and THEY will make him do so.
> My question is, should I report his to my insurance company as soon as
> possible by monday to avoid problems?
Absolutely. Although you won't see responses to your post on MLM until after Monday because your question didn't get posted until Monday morning and it takes at least a day to get a response on a moderated newsgroup.
> Does massachusetts require a police report?
I don't know, but probably not. It doesn't hurt for you to call the cops from the scene and report an accident, but it probably doesn't violate any law if you don't do so. FYI many states and localities have adopted a guideline that the cops will _not_ prepare an accident report, even if the cops _do_ get called to the scene, unless there is "serious" property damage, or a reported injury requiring an ambulance. But the cops, if called, WILL act as an intermediary so (a) the 2 drivers don't have to talk to each other and (b) they will get all the required information from each of you to share with each other, because they know what to ask _and_ have the authority to require an answer.
So in cases where you don't have your wits together enough to ask all the right questions, and feel intimidated by the other driver to make you too shy to insist on answers, you should at least have your wits together enough to call the cops and have them do that for you.
> Because at the time both of us do not know what happened, but will he
> be able to sue me and turn the case around now because he had my
> information?
Yes, of course he could turn around and sue you, but not because he has your information. And it's not as though you could legally refuse to give him your information anyway.
> I have a busy week ahead and don't know what to do.
The bottom line is, the reason you carry liability insurance is to deal with situations like this for you, so you don't have to fill up your busy week worrying about it. Just report the incident to your insurance, WITH A CONSISTENT STORY OF YOUR OWN recollection so they aren't left to depend just on what the other guy says, and let them handle it from there on; it is probably the last you will hear about it. If they are NOT able to settle things, yes you may get sued, but in that case you can be sure your insurance will NOT roll over and play dead, but will hire a lawyer to defend you and will try to present YOUR side of the story to the judge IF you even have a story to present. But if all they have to go on is the other guy's story that "OP hit me and damaged my car and I didn't do anything wrong", and you don't have any memory to contradict that, they don't have much choice but to pay him for the damages he claims.
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 live in Massachusetts.
> On saturday afternoon, while I was driving straight down the road, I
> happened to hear a big clump like I ran over something.
>
> I stopped got out and saw it was a piece of round metal on the road.
Huh? You mean like a hubcap? You make it sound like you ran over the piece of metal, not like your car collided with another as I understand from later in your post. You need to get a consistent narrative together based on what you _do_ remember, and tell that to your insurance company.
Frankly, telling them something like the confused mishmosh you posted here is likely to make them not believe you, and wind up having them blame you for the collision, especially if the other driver cooks up a good, consistent story (even if it is a lie). Get your story straight.
> I am not sure if it was mine or the other car.
Still? Do you really mean to say you can't tell, after having a couple days to look at it, whether or not any part whatsoever fell off of your car?? Did you (or the other driver) happen to _save_ the piece of metal you ran over, as evidence? I suppose not. But it wouldn't hurt to go back to the scene and look to see if it was still there, if that's not too inconvenient.
> The other car driver
> stepped out. I think he was moving out of parking when I was driving
> and somehow this happened.
You "think"? On what do you base that conclusion? When the two of you got out of your cars to talk, was his car still mostly within the parking space, with its front end nosing into traffic where it could have collided with your passing car? Or was it completely in a travel lane and pointed in the right direction? If so, did the collision happen in his lane, or yours (if more than one lane)? You've got to get all these facts straight or you will be helpless to help yourself by countering whatever the other guy says.
> Both of us had no idea what happened.
Then you're not going to make a very good witness in your own behalf unless you do some hard thinking and figure out for yourself what must have happened. There's no one else besides the two drivers who can do that.
And I wouldn't be too sure the other guy hasn't come up with a consistent and believable story by now that exonerates him and blames you.
>From the look of it, he had scratches on his front right wheel and
> mine on my front left bumper. I asked if he wanted to make a report of
> it he said no.
That doesnt keep _you_ from making a report. Which you should do, now, to your insurance company.
> He asked for my insurance information, I gave it to him.
You were obligated by law to do that; both drivers were, regardless of who is later found to be at fault.
> When I asked for his, he said he has no insurance. I managed to
> take a few pictures of his car, obviously no damage.
How convenient. Those photos are valuable evidence in your behalf so guard them carefully. You may want to scan them, or make color photocopies at your local copy center, to give to your insurance company.
> When I left the sence he called me to report damaged to his rear
> window (right) and said I must pay for it. This was after we both
> left the scene.
Do your photos show no damage in that area? Or did you not take any pictures of that area?
If the other guy was pulling out of a parallel parking space, which I presume would place him to your right as you drove by (unless it was a one-way street, or angle parking) how on earth could the collision have caused any damage at all to his car's _right_ side?
> No police report because he did not want to call (he does not have
> insurance on the car, it was his wife's car).
Did you ask whether his WIFE has insurance? That's what matters; in most states the primary obligation to have insurance runs with the car owner, not the driver.
You state the lack of insurance parenthetically, as if that were the reason he did not want to call the cops. And you agreed with that?? Friend, you have NO obligation to protect someone else who is in violation of the law by not having insurance, especially where that person has already harmed YOUR interests by colliding with you. You need to grow a backbone and stand up for your own rights. You should have insisted on calling the cops, unless the other driver willingly gave you all the required information (driver's license to show his number, name and address; car tag number and state; car registration showing owner name and address; insurance card showing policy number and name of policyholder).
I'm sure you were feeling flustered at the scene, but you still have to get your senses together enough to ask the questions you need to know to protect yourself. That's something any driver should be prepared, in advance, to know he has to ask, because you're not going to have the time or requisite calm state of mind to figure it out for yourself _after_ a collision happens.
> But he got hold of my
> insurance information because I gave it to him, he however did not
> give me his, he said that he's not insured.
You said that already. Did you happen to write down his OTHER identifying information, from his driver's license and registration card? Don't tell me you didn't ask to see his license and registration... If you didn't, you have no proof the guy was who he says he is, or who owns the car. Did you at least write down the license tag number on his car? That still wouldn't help you, e.g. if it was a stolen car with stolen tags etc. For next time, if you didn't this time, you need to ask to see the actual paperwork (driver's license and car registration) and if he refuses, then DO call the cops, and THEY will make him do so.
> My question is, should I report his to my insurance company as soon as
> possible by monday to avoid problems?
Absolutely. Although you won't see responses to your post on MLM until after Monday because your question didn't get posted until Monday morning and it takes at least a day to get a response on a moderated newsgroup.
> Does massachusetts require a police report?
I don't know, but probably not. It doesn't hurt for you to call the cops from the scene and report an accident, but it probably doesn't violate any law if you don't do so. FYI many states and localities have adopted a guideline that the cops will _not_ prepare an accident report, even if the cops _do_ get called to the scene, unless there is "serious" property damage, or a reported injury requiring an ambulance. But the cops, if called, WILL act as an intermediary so (a) the 2 drivers don't have to talk to each other and (b) they will get all the required information from each of you to share with each other, because they know what to ask _and_ have the authority to require an answer.
So in cases where you don't have your wits together enough to ask all the right questions, and feel intimidated by the other driver to make you too shy to insist on answers, you should at least have your wits together enough to call the cops and have them do that for you.
> Because at the time both of us do not know what happened, but will he
> be able to sue me and turn the case around now because he had my
> information?
Yes, of course he could turn around and sue you, but not because he has your information. And it's not as though you could legally refuse to give him your information anyway.
> I have a busy week ahead and don't know what to do.
The bottom line is, the reason you carry liability insurance is to deal with situations like this for you, so you don't have to fill up your busy week worrying about it. Just report the incident to your insurance, WITH A CONSISTENT STORY OF YOUR OWN recollection so they aren't left to depend just on what the other guy says, and let them handle it from there on; it is probably the last you will hear about it. If they are NOT able to settle things, yes you may get sued, but in that case you can be sure your insurance will NOT roll over and play dead, but will hire a lawyer to defend you and will try to present YOUR side of the story to the judge IF you even have a story to present. But if all they have to go on is the other guy's story that "OP hit me and damaged my car and I didn't do anything wrong", and you don't have any memory to contradict that, they don't have much choice but to pay him for the damages he claims.
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
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