Archive for the 'Lawyers' Category

The Right to Lease or Rent Foreclosed Property

The Right to Lease or Rent Foreclosed Property

Who has the right to lease a foreclosed property? One guess might be the owner, depending on the stage of the foreclosure process. Another answer may be the bank or financial institution that owns the property after the foreclosure is complete. According to Earl Johnson, a Goose Creek, South Carolina resident, he had the right to lease foreclosed property. However, police claim the Johnson never owned the house, and that Johnson had conned tenants into renting foreclosed property.

What Was Johnson’s Defense?

Earl Johnson claims he has a legal right to lease foreclosed property that he didn’t own under the Declaration on the Rights of Indigenous People signed by President Barack Obama.

Before focusing on who is right or wrong, let’s define foreclosure. Foreclosure is a process where a county or financial institute takes a property from a property owner and sales it. Foreclosures typically occur after a property owner defaults on a mortgage loan or property taxes. Mortgage holders, usually a bank, sell the property to pay off the remaining debt on the loan or taxes.

The right to lease or sell a foreclosed property depends on the stage of the foreclosure. A property owner can avoid foreclosure via a short sale, short refinance, loan modification, repayment plan, or by challenging the foreclosure. A mortgage holder can sell the property through an auction. In many situations, the former homeowner moves out and the property is left vacant until the bank or county sells it. Earl Johnson

Earl Johnson wasn’t in either category. He never owned the property or was a lender holding a mortgage on it. Yet, he leased the property in question to two sisters, Tina Capreole and Nancy Bowman. They paid Johnson $1200 and moved in on August 1, 2015. A couple days later, a realtor dropped by the property to show it to prospective buyers. That is when the new tenants discovered the man they’d leased the home from didn’t own the property. In fact, the property was in bankruptcy.

Typically, a tenant has some rights in a foreclosure when a landlord defaults on his mortgage or taxes. For example, the Mortgage Reform Act passed by Congress in 2009 gives tenants living in foreclosed property 90 days to find a new place to live. This Act and many other tenant rights weren’t available to the tenants living in the “leased” foreclosed property in South Carolina. The bankruptcy trustee, a court appointee who oversees bankruptcies, told the tenants they had to move because the tenants were living there illegally.

It’s a Crime to Lease Property a Person Doesn’t Legally Own

It’s a crime to lease property without the permission of the property owner. Illegally leasing property that one doesn’t own is a repeatedly occurring scam which occurs across the country. For instance, in 2013 a Florida woman was accused of leasing her neighbor’s foreclosed home to tenants for more than one year. Tenants allegedly paid her about $13,000.

In Goose Creek, Johnson was arrested and charged with:

  • Burglary in the third degree
  • Obtaining signatures under false pretenses
  • Operating a business without a license

Burglary is the criminal act of breaking and entering into a structure for the purpose of committing a crime thereafter. The entry doesn’t require the use of force. Johnson is accused of breaking and entering into the property prior to leasing it. According to the tenants, he even gave them keys to the home and made some home improvements to the property.

Obtaining property by false pretenses is a crime when someone makes misrepresentations or lies to get property. In this case, Johnson is accused of misrepresenting himself as the property owner to illegally obtain the tenants’ rent.

A business license is required to operate a business in a particular area. Failure to have a proper or valid license is a crime.

Is the Declaration on the Rights of Indigenous People signed by President Obama a Valid Defense?

The Declaration is a statement addressing the human rights indigenous people have. It was formally adopted by the United Nations in 2007 and formally endorsed by President Obama in 2010. The purpose of the Declaration was to emphasis the fact that indigenous people have the right to enjoy all human rights and fundamental freedoms recognized in the United Nation’s Charter.

Notably, the United States originally voted against the Declaration when the U.N. initially voted on it. Since the Senate has yet to ratify it, the Declaration isn’t legally binding and not a part of U.S. criminal laws. The Declaration doesn’t create new rights for indigenous people. It is unlikely that Johnson will succeed with this defense.

Wells Fargo Bank Commits Fraud Against Its Customers

Wells Fargo Bank is facing a lawsuit from the city of Los Angeles, which alleges that the bank participated in unfair business practices by persuading its employees to engage “in unfair, unlawful, and fraudulent conduct.” According to the lawsuit, Wells Fargo workers were under a great deal of pressure to meet sales goals, and thus, were in the habit of opening accounts for their current customers without first obtaining their permission.

The city of Los Angeles refers to Wells Fargo as a “fee-generating machine” because of its efforts to compel its employees to meet unrealistic sales goals. According to the city, “Wells Fargo places unrelenting pressure on its bankers to open several accounts for each customer. “ “Wells Fargo’s bankers are thus naturally and predictably forced to use alternative means to meet quotas.”

As a result of the workers’ actions, customers were subjected to more fees and a diminished ability to obtain credit anyplace else. For example, their credit reports were affected, thereby having an adverse impact on their capacity to obtain a car loan or mortgage. Customers also felt compelled to get identity theft protection because Wells Fargo accounts were being opened in their names without the customers’ consent. wells-fargo-robbery

The city is therefore attempting to secure a court order from the Los Angeles Superior Court that would mandate that the bank act in compliance with the law. It is also seeking to have Wells Fargo penalized with a fine of $2,500 per violation in accordance with California’s unfair competition statute and restitution.

In addition, the city alleges in its lawsuit that Wells Fargo workers were dishonest with customers when they told them that they had to open more accounts in order to get a checking account. Moreover, workers incorrectly informed customers that there were no fees associated with the accounts, and pressured customers into buying extra products, such as life insurance.

Furthermore, the city claims that Wells Fargo was in violation of state and federal law when it misappropriated customers’ private information, and neglected to inform customers that their private information had been misused. In response, representatives from Wells Fargo said that they have disciplined a few employees who have misappropriated customers’ personal information in order to open accounts without their permission.

Ken Wallman, a business owner, was one customer whose private information was misused by Wells Fargo workers. Wallman told Los Angeles Times in an interview that he opened a checking account with Wells Fargo, but eventually he had a dozen additional accounts because the bank opened additional accounts without first obtaining his approval. When Wallman tried to close the accounts, Wells Fargo refused and, instead, charged him extra fees.

Unfair Competition Law

Under California’s Unfair Competition Law (UCL), there are five definitions of unfair competition outlined in §17200. They are as follows:

  1. An illegal business act or practice;
  2. A business act or practice that is unfair;
  3. A business act or practice that is fraudulent;
  4. Advertising that is unfair, deceptive, untrue, or misleading; or
  5. Any act forbidden by §§17500-17577.5.

Under §17203, the court can order injunctions to prevent the unfair competition as well as order other equitable defenses. Victims of unfair competition can obtain relief through the court, which can order that money or property be returned to them. In the event that an injunction is issued in accordance with §17200, those who intentionally engage in unfair competition could be penalized up to $6,000 per day. And when a lawsuit is filed by a government agency, such as the city of Los Angeles, civil penalties of up to $2,500 per violation are permitted.

California Lawyer Proposes to Kill All Homosexuals

Matt McLaughlin’s anti-gay ballot measure proposal is so extreme it almost seems like a parody of same-sex marriage proponents. At least, I hope it’s a parody. The idea that McLaughlin’s proposal might be serious is terrifying.

california lawyer proposes killing all gaysMcLaughlin‘s first decree is that homosexuals “be put to death by bullets to the head – or by any other convenient method.” Moreover, the “general public is empowered and deputized to execute all the provisions hereunder extra-judicially.” Murder of homosexuals, mass murder in fact, would be a public duty. The proposal would allow anyone to kill anyone else, provided that the victim was homosexual. Since the dead can’t talk, the proposal is a public license to kill.

As if legalized genocide wasn’t enough, McLaughlin’s proposal has two other outrageous provisions. The second provision is that it would be illegal to distribute information aimed at promoting acceptance of homosexual relations, a clear violation of the First Amendment’s free speech right. The third provision is that homosexuals can’t serve in public office, hold a government job, or receive public benefits.

The proposal is over the top, but there’s a subtlety in the design. The proposal also prohibits any court from hearing a case on the proposed law before the California Supreme Court hears the case.  This last provision is a response to Proposition 8, the California proposition that made same-sex marriage illegal, but was overturned by the courts. The California Supreme Court upheld Proposition 8 though, making the proposal’s choice of court logical (even if no judge would vote to uphold this). The limit on jurisdiction indicates that the proposal was written with more care than mere disdain of homosexuality.

McLaughlin Should Be Suspended from the Bar for This Stunt

Why am I taking the time to dissect a proposal that probably wouldn’t even get enough signatures to get on the ballot? Some people are calling for McLaughlin’s disbarment. I wouldn’t go that far, but I think the state bar should suspend McLaughlin for this stunt.

It’s obvious that McLaughlin applied his knowledge of the law when he drafted this excuse for a proposal. A lay person who wanted to kill homosexuals wouldn’t take the time to limit the courts’ ability to hear the case or select the court which upheld the previous proposition that prohibited same-sex marriage. McLaughlin actually did research on this and it’s research on the type of questions that most non-lawyers wouldn’t even think about. This proposal is only possible because McLaughlin is a lawyer.

Since McLaughlin’s legal knowledge and skills were used to advance this farce, McLaughlin was acting as a lawyer when he submitted his bogus proposal. Lawyers cannot file frivolous papers to the courts. A proposal that advocates for a license to murder is frivolous because the proposal has no chance of passing and has no chance of being upheld even if the public lost its collective minds.

Granted, submitting a ballot submission is not the same as filing a paper with a court. However, the ballot initiative system is still a public forum and lawyers like McLaughlin should not be wasting taxpayer money on jokes like this. McLaughlin should be suspended for abusing a state resource by filing a frivolous document.

Despite what the homosexual community and its advocates think, I don’t think McLaughlin should be disbarred. In addition to all the typical concerns about free speech, McLaughlin is a lawyer. Lawyers have the ability – the power- to advocate for a change in the law. The public and the state bar expect that the changes advocated will be positive changes, like desegregation, rather than advocating for murder. The fact is though there is no rule that the changes lawyers propose have to be positive changes in the law.

The problem is that McLaughlin’s proposed legal change would destroy the very law it would be changing. The proposal would throw people in jail for promoting acceptance of homosexual relations. It’s obvious that would be unconstitutional even to the most legally illiterate among us. The proposal advocates for murder. It’s obvious that’s immoral even to the most depraved persons. McLaughlin wouldn’t be changing course in the ship of state; he would be sinking the ship entirely.

I’ve treated McLaughlin’s proposal like he’s 100 percent serious about this scheme, when in fact this is probably just a crazy parody (I hope). I appreciate that he could be making a point by parodying the other side, or that he’s advocating for a change in the state initiative system by showing that even the craziest of propositions could make it to the ballot. However, McLaughlin could do that without abusing his profession, a profession that many already see as amoral at best.

If Justice Scalia Is Right, Then Let’s Make Law School 7 Years

Earning a law degree takes three years. The only thing worse than the absurd cost of law school is the fact that the third year is generally regarded as a waste of time. Many legal academics and even President Obama have contended that law school should be shortened to two years.

justice scalia law schoolThe Honorable Justice Scalia of the U.S. Supreme Court recently spoke on this issue. Convinced that law school should remain three years, he states that law school isn’t a trade school, but something more. To quote: “[Law school] is a school preparing men and women not for a trade but for a profession—the profession of law.”

Although Justice Scalia’s sincerity is touching, and although the high regard he holds for the law is inspiring, his words fail to address the issue at hand: can someone learn to be a successful lawyer in two years? If the answer is “yes,” then what is the actual value of the third year of law school?

I agree that education is important. However, at the end of the day, education is a means to an end. The purpose of law school isn’t something mystical. The purpose of law school is to learn to be a lawyer.

If Justice Scalia is right—that is, if law school is meant to be something more than a “trade school”—then why settle for three years? Why not stretch it out to five? People with Ph.D.’s in medieval studies often go to school for that long—or even longer. Why not elevate the J.D. to the status of the M.D. and keep law students in school for seven years?

It would be one thing if an extra year was just an extra year. A little more education never hurt anyone. However, in the case of law school, an extra year means an extra $50,000+ of debt.

 

Authored by Peter Clarke, LegalMatch Legal Writer and Content Manager. Peter Clarke is also a freelance writer and curates Screenplay Lists.

“Paperless in One Hour for Lawyers”

Going paperless is not only a trendy movement, it’s also a highly practical step to achieving an efficient law office. Many large law firms are already there. However, if you are a sole practitioner and you don’t have your own IT department to carry out the technicalities, then going paperless probably sounds more like a hassle than a revolution.

paperless in one hour for lawyersPaperless in One Hour for Lawyers” by Sheila M. Blackford and Donna S. M. Neff provides a quick and easy guide that is specifically intended for solo practitioners and small firms. Ms. Blackford, a paperless attorney in Oregon as well as the Editor-in-Chief of Law Practice magazine, clearly explains the benefits of going paperless. For example: “It shouldn’t come as a surprise that there is an enormous loss of productivity when you spend even fifteen minutes a day searching for a specific document. If your billable rate is $200 an hour, the cost of fifteen minutes of unproductive time is $50 a day…or $13,000 a year.”

Important information found in “Paperless in One Hour for Lawyers” includes a guide to the essential hardware and software you will need, a review of the apps that are available, and an overview of the business practices that should be implemented. The sections are easy to follow and graciously concise. Read the book in one sitting—in one hour—and you’ll be good to go.

Authored by Peter ClarkeLegalMatch Content Manager 



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