Archive for the 'Lawyers' Category

How Can Your Foreclosure Affect You?

No one wants to foreclose, but it happens if you fall behind on your mortgage payments and have no way of catching up. While you want to move on from the whole experience, your credit score won’t let you.

A foreclosure can hit your credit up to 300 points, and if you’ve missed several mortgage payments before filing for foreclosure, it can negatively impact your credit score even more. A foreclosure appears on your credit report as of the date you file, not the date of sale. It stays on your credit report for seven years.

Besides carrying around the foreclosure on your credit report for years, what other affects can foreclosures have on your life?

Foreclosures and Family

After the housing bubble burst in 2008, foreclosure rates increased substantially. Many families lost their homes to foreclosure. Foreclosure Sign

Studies demonstrate that families who faced foreclosure saw their earnings fall more than families who did not experience foreclosure. After one earner lost his or her job, foreclosure was nearly inevitable. Moreover, families who lost homes to foreclosure were more likely to seek government assistance programs for support. They also tend to double up or share their home after filing for foreclosure, but before the house is sold.

Bankruptcy and Foreclosure

If you are contemplating bankruptcy, you may also be facing foreclosure. If you fall three months behind on your mortgage payments, it may be beneficial to think about filing for bankruptcy to avoid foreclosure. Although financially, bankruptcy is considered a “last-resort” option, it can hold off creditors, including your mortgage company, while you’re sorting out your financial troubles.

Bankruptcy only prevents foreclosure in some cases. If you file for Chapter 7 bankruptcy, it means you don’t have the financial means to pay any of your bills. In that regard, the bankruptcy releases you from your obligation to pay your debts. However, Chapter 7 bankruptcy does not prevent foreclosures. While your obligation to repay is released, the lien on the house isn’t canceled because it serves as collateral if you cannot repay. With Chapter 7 bankruptcy, the homeowner often surrenders his or her home.

Chapter 13 bankruptcy gives the debtor an opportunity to work out a new agreement with the lender. Lenders can come to an agreement with the debtor consisting of paying off the late payments and late interest for up to 5 years as part of a new loan agreement. If you can pay the new loan payment and make all your payments on time, after the five years are completed, you can keep your home.

It is important to note that while bankruptcy and foreclosure have a negative impact on your credit, foreclosures remain on your credit report for seven years, whereas bankruptcies remain for ten years. Nevertheless, creditors look at foreclosures more seriously than bankruptcy that don’t include a house.

Foreclosures and Your Estate Plan

If you inherit a house that is behind on its mortgage payments or already in foreclosure, you have a couple options. Assuming the homeowner is behind on mortgage payments, the person to whom the house is left does not have to accept the inheritance or the debt associated with the property. If the beneficiary can’t afford the mortgage payments, insurance or maintenance, the beneficiary may disclaim the property and it would be passed to the next person designated. If no one claims the property, the home would likely go into foreclosure.

If the house is going into foreclosure, you want to make sure the house is not in your name and is still the property of the estate. If it is in your name, the foreclosure will affect your credit. If not, it has no bearing on your credit. In that case, the estate may be responsible for the deficiency judgment.

Foreclosure and Divorce

Financial problems are cited as one of the leading causes of divorce, so it should come as no surprise that foreclosures and divorce often go hand-in-hand. If you’re behind on your mortgage and going through a divorce, you must figure out who is responsible for the mortgage debt.

Many couples take out their mortgage and hold title jointly. In that case, both parties are responsible for the debt. However, if either spouse holds title in his or her name alone, that spouse is solely responsible for the debt and is the only person the bank may pursue for any deficiency judgment after a foreclosure.

Obama Administration Extends Transgender Rights in Public Schools

The Obama administration recently issued a directive to all public schools in the country allowing transgender students to use bathrooms matching their gender identity. The declaration was signed by the Justice and Education department officials and describes what schools can do if any of their transgender students are discriminated against. While it does not carry the force of law, it does impose a threat for any school that does not abide by the law as they may face lawsuits or loss in federal aid. President Obama

President Obama defends his position. “I think that it is part of our obligation as a society to make sure that everybody is treated fairly, and our kids are all loved, and that they’re protected and that their dignity is affirmed.”

The law is the most recent evidence of the Obama administration’s efforts to enact more inclusive civil rights for the lesbian, gay, bisexual and transgender (LGBT) community.

Who are Transgender?

A transgender person is a person whose internal sense of him or herself is different than the gender assigned at birth. It is different than one’s sexual orientation, or who a person is attracted to. In that regard, sexual orientation relates to whether a person is gay, lesbian, heterosexual, or bisexual. Just because a person is transgender does not also mean that he or she is gay or lesbian.

Approximately seven-hundred thousand people identify as transgender in the United States. A recent study showed that a staggering 41% of transgender people in the United States have attempted to commit suicide, compared with 4.6% of the general public.

Criticism

Obama’s directive has met its fair share of criticism. In particular, it brings up issues of federalism. In laymen’s terms, federalism is the process by which two or more governments share powers over the same geographic area. In the U.S., the Constitution grants powers to both the U.S. and state governments. For example, Congress is granted powers to coin money, regulate interstate trade and commerce, declare war, and raise an army and navy. States, on the other hand, are given powers that are not specifically listed under the Constitution, such as requiring drivers’ licenses and collecting property taxes.

The Obama administration has received fierce criticism against the directive. Critics believe the directive goes beyond the bathroom issue and touches on privacy rights, education, records and sex-segregated athletics. The biggest backlash is from ministers, parents and politicians who believe the federal government is imposing its values on individual states, whereas the states have no say in regulating its own rules and laws.

Meanwhile, others argue President Obama cannot withhold federal funding, especially given that Congress has not taken a position on the issue and President Obama will be leaving office by January.

Although critics believe the President has overextended his executive power, the President is given power to issue statewide directives. Additionally, pursuant to the Civil Rights Act of 1964, an administration is permitted to withhold federal funds, but the law isn’t so clear cut. The Act was signed by President Johnson, giving the federal government power to withhold federal funds from segregated public schools.

While President Obama is attempting to withhold federal funds based on public schools’ practices, this situation does not mirror those which were anticipated when the Act was enacted. If he continues to stand firm, it will continue to be met with heated debate and sharp criticism.

Is California’s New Bill to Raise Legal Smoking Age to 21 an Overstep of Power?

California’s Governor Jerry Brown signed a bill into law that raises the legal smoking age from 18 to 21. The bill was introduced as a measure that would reduce adolescent tobacco addiction and, in the long run, save lives.  

According to the National Survey on Drug Use and Health, 90% of tobacco users started smoking before they reached the age of 21 and 80% smoking before the age of 18. The goal of the new legislation is to prevent smoking at a younger age. Preventing smoking early will prevent addiction later in life, according to supporters.

At first glance it doesn’t seem like raising the minimum smoking age to 21 would make much of a difference since the majority of users started smoking before they reached the age of 18, but consider the fact that 15-and 16-year olds are more likely to be associated with 18-year olds than they are with a 21-year old. Making it harder for young adults to buy tobacco makes it harder for teens to have access to it.

Government Is Essentially Regulating What We Do With Our Bodies

Some have very strong opinions about whether the government should be able to regulate our personal consumption of goods. However, it’s been happening for years and as long as constitutional challenges can be met, these laws will stick because a long history of precedent has already been established when it comes to governmental regulation and our health. Regulating water supply, banning the use of lead paint in homes, and regulating food and beverage products, just to name a few. Ever heard of Roe v. Wade?

Of course you have. That’s the first thought that came to mind when considering governmental regulations that restrict choices of personal autonomy. In the historic case, the Supreme Court found that women have a fundamental right to privacy to do what they want with their bodies. The topic of abortion and extending the legal smoking age are obviously on two different ends of the spectrum, but if you’re not familiar with the analysis of how the Justices came up with that decision, it’s definitely worth noting. Tobacco

The case established that women have the right to make decisions concerning their own bodies, but also established that states have legitimate and compelling interests in 1) protecting a woman’s health and 2) protecting the potentiality of human life. The states interest in the woman’s health and the child’s health only get stronger the longer a woman is pregnant, making their interest more compelling and, therefore, giving them the authority to regulate abortions. Now, only one of those interests is applicable here, but protecting the health and safety of citizens is an important one.

A woman’s decision in this instance is far more personal than any decision of whether or not to use tobacco or consume other goods, but the same principles apply. The question becomes whether or not protecting young adults from the harmful effects of smoking is a compelling enough interest. If the government can find a compelling interest, i.e. tobacco use harms your health, then they get to regulate it.

Does the Government Have Enough of a Compelling Interest?

New York recently tried to ban sugary drinks, like soda, from being sold in anything larger than 16 ounces due to links to high-sugar consumption and obesity, but the state’s highest court eventually struck the ban down. Why is it that smoking and drinking alcohol are so taboo that it seems acceptable to regulate, but when it comes to regulating our soda consumption, that’s what seems outrageous? Is it really any different?

I’ll admit, when I first heard of the soda ban, I thought the idea was ridiculous and definitely an overstep of authority, but, when you think about it, smoking tobacco used to be cool and no one thought anything of it being harmful. It wasn’t until years and years later that the public started to become aware of the actual risks of using tobacco. Maybe we’ll learn sugar is the same, who knows. No one seems to complain about the government restricting lead-based paint.

While the government shouldn’t necessarily be able to regulate whether an adult wants to use tobacco, regulating access to teens doesn’t shock the conscious. If you look purely at statistics on tobacco use, regulating it against young adults makes sense, especially when you consider how addictive it is.

Tobacco use remains the leading cause of preventable death in California. With a total of at least 34,000 tobacco-related deaths per year, the Institute of Medicine’s study reflecting a decrease of 200,000 fewer deaths for those born between 2000 and 2019 is enough of a legitimate and compelling reason to back the change.

Don’t get me wrong, regulating soda consumption is a stretch and I’m all for the idea of personal autonomy, but the dangers of tobacco use are well proven enough for the government to meet the constitutional requirements of a compelling health and safety interest. Although California is only the second state to raise the legal smoking age to 21, after Hawaii, many cities have already raised the age limit within their own city limits.

Michigan Approves Law Preventing Rapists from Obtaining Child Custody

It is the stuff nightmares are made of: the victim of a rape being traumatized all over again by being forced to do battle with her rapist over custody of the child born of the rape. This issue motivated the Rape Survivor Custody Act, which was passed by Congress in May 2015. Disturbingly, it is not uncommon for rapists to seek custody of their children conceived from rape, even while awaiting trial for the assault on the child’s mother.

In fact, before he committed suicide in prison, kidnapper Ariel Castro sought visitation with the child he fathered with Amanda Berry, one of the women he held captive and raped for years. Judge Michael Russo denied the request, stating “I just think that would be inappropriate.” However, at that time, Ohio had no laws which would deny Castro’s parental rights because of his assault on the mother of child.

It is understandable that such indignities would cause outcry and a call for change. However, well-intentioned laws aiming at preventing rapists from obtaining custody of children may wrongly deprive some defendants of due process and keep some children from knowing their fathers.

The Rape Survivor Custody Act and the Origin of Senate Bill 629

Last year, Congress approved the Rape Survivor Custody Act, which provides money to states to pass laws denying parental rights to the fathers of children conceived as a result of rape. Recently, with overwhelming support, Michigan passed just such a law. In December 2015, the Michigan Senate unanimously approved Senate Bill 629, which was introduced by Republican Senator Rick Jones.

Jones, who spent 31 years in law enforcement, called upon his own experience working with victims of sexual assault in introducing the bill. “Sometimes it’s an acquaintance rape, they don’t wish to bring charges and put the person in prison; sometimes the victim simply doesn’t want to go through the criminal trial.” Child

A reading of the text of Senate Bill 629 reflects the specific outcome it aims to prevent. The bill states that, when the mother of a child conceived of rape applies for public aid, a claim for child support from the biological father is triggered. This then presents an opportunity for the rapist to manipulate his victim by using the support dispute to pressure the victim to drop criminal claims against him. Or, he may use the dispute as an opportunity to assault and traumatize the victim all over again.

The decision of a rape victim to carry a baby to term, or choose to have an abortion, is also inextricably linked to this debate. In his support of the bill, Jones said, “I’ve actually heard of horrible cases where the rapist contacted the victim after they heard that a child had been conceived and said: ‘Get an abortion, and if you don’t, I will be going for custody.’”

How Senate Bill 629 Lowers the Evidentiary Standard

Previously, under Michigan state law, a court could terminate parental rights only once the father was convicted of sexual assault in criminal court. Senate Bill 629, by contrast, allows the family court to terminate parental rights upon petition by the victim to the family court.

A notable change that Senate Bill 629 implements is the lowering of the evidentiary standard. Previously, a conviction of sexual assault required that the prosecutor show guilt “beyond a reasonable doubt.” This means that there is a great likelihood that the accused committed the crime. While courts are hesitant to attach percentages to this standard, many believe that “beyond a reasonable doubt” means 90%, 95%, or even 99% confidence that the accused committed the crime.

Senate Bill 629 lowers the evidentiary standard to “clear and convincing evidence.” Under this legal standard, the evidence must be substantially more probable to be true rather than to be untrue (51% to 60%). This is a significantly lower standard of evidence, especially considering that the stakes, loss of parental rights, are high.

Will this Law Have Unintended Consequences?

While the motivation for laws like Senate Bill 629 are understandable, there may be unintended consequences as a result of this law and those like it.

Lowering the evidence standard means that a person accused of rape may have his parental rights terminated without being convicted of a crime, or without the benefit of a trial. That being said, rape is a notoriously under-reported crime, and the procedure surrounding rape trials is known to be extremely difficult on the victim of the crime. For this and other reasons, it is estimated that only 1 in 5 rapes are reported. However, an attempt to circumvent and alleviate a difficult criminal process for the victim of the crime may threaten the procedural safeguards put in place for the criminal defendant by the Constitution.

For example, if proceedings are held in family court, it is unlikely the accused will be provided free representation by an attorney, a right only guaranteed in criminal court. A lowered standard of proof may also run the risk of misuse or abuse by the accuser, which could result in a father losing parental rights as a result of the mere allegation of rape—which perhaps he did not commit. It is also unclear if this law applies in the case of statutory rape, which could lead to inequitable results.

Senate Bill 629 also raises questions whether the family court is the appropriate forum for these decisions. The roles of the criminal and family courts are vastly different. Family court does not consider guilt or innocence, and is not intended to be a penal system.

Also notably absent is the voice of the minor child. Disputes in family court involving child custody are held to the “best interests of the child standard.” This standard prioritizes the wellbeing and development of the minor child over the parent’s desires. Arguably, it may be in the best interest of a child to be protected from a father who seeks to victimize his mother.

However, an unintended result of Senate Bill 629 and similar laws may be that children conceived of rape are denied the future ability to decide to have a relationship with his or her own father—however difficult that decision may one day be.

This Evidence Will Self-Destruct in 10 Seconds

Self-destructing messages were once the realm of James Bond, Mission Impossible and Inspector Gadget.  However, ephemeral messaging is now extremely common.  Phone apps such as Snapchat, Cyber Dust, Tiger Talk, and Confide all allow users to send messages which disappear shortly after they are read or watched.

This has allowed users an unprecedented level of privacy in the messages they send.  Services such as Cyber Dust and Confide encrypt your messages, prevent them from having a screen shot taken of them, and (of course) destroy messages you send shortly after they are read—keeping no digital record.  Snapchat, while not as secure, still features messages which “vanish” after they are viewed.

The flip side to this privacy is an easy way to send messages that could never be used as evidence in a lawsuit. Cyber Dust was created after Mark Cuban’s experience in his insider trading lawsuit with the Securities and Exchange Commission (SEC).  Mr. Cuban felt that the SEC mischaracterized every message he sent, so he made Cyber Dust to “save a lot of time and money because nothing sent or received on Cyber Dust is discoverable.” Cyber Dust is specifically pitched as the Snapchat for “a business with a lot of lawsuits.” Snapchat itself has been accused of being used a tool to conceal insider trading.

The evidence from ephemeral messages can often be crucial to cases. Just a few weeks back, an Uber driver sued a woman over brain damage he suffered when she hit his car from behind…while she was recording herself going 107 MPH with a Snapchat speed filter.  The video that the woman took, actually recording herself hitting the Uber driver while simultaneously recording her reckless speed, would be incredible evidence in that case.  However, due to the nature Snapchat, that evidence is likely gone.

Spoliation: Getting Rid of the Evidence

There is no universal duty to maintain anything that could ever be used as evidence. Making people keep every last document in case they get sued just doesn’t make sense.  In fact, most companies have policies regulating what records they maintain and when records should be destroyed.  However, there are situations where destroying or withholding evidence can get you in trouble—this is called spoliation of evidence. Have a Nice Day!

A person who negligently or intentionally withholds or destroys relevant information that will be required in a lawsuit is liable for spoliation of evidence.  To determine whether somebody has committed spoliation, courts look to three things: 1) whether a duty to preserve evidence attached before the evidence was destroyed; 2) whether the person accused of spoliation was at least negligent in destroying the evidence; and 3) the other party was prejudiced by the destruction of the evidence.

Whether the duty to preserve evidence takes effect varies substantially between state and federal law and from state to state. The duty can take effect when you first should know you’re likely to be sued for something or when you actually receive notice of a lawsuit against you.  Once you’re under a duty to preserve evidence, you can’t destroy or hide evidence relevant to the lawsuit you know of or are expecting.

When a court finds that somebody has committed spoliation, the court can bring a number of sanctions against them.  The exact breadth of sanctions varies depending on what court you’re in, but a common sanction is applying a “negative evidentiary inference.”  This means that a jury can assume that the evidence the person destroyed would have been bad for that person.

There are exceptions for destruction of evidence as part of a routine, good faith operation of an electronic information system. However, destruction of records after you know about a lawsuit or likely lawsuit —routine or no—is often as bad faith and sanctioned.  Ephemeral data—such as information stored in RAM—has also been treated differently from normally stored electronic data.  The evidence was treated differently because it would require a Herculean effort to preserve.  However, no court has ever dealt with the obligation to preserve where the data you send self-destructs by design.

Courts have dealt with people deleting social media content in the past. They specifically ruled that deleting either Facebook posts or a Facebook account can be spoliation.  Current law leaves it unclear whether use of ephemeral messaging, like Snapchat, will leave the user in danger of spoliation sanctions.  By using Snapchat, you are creating an electronic message with the knowledge it will be destroyed.  If this is done with relevant evidence after a duty to preserve takes effect, this is arguably spoliation.

Are Snapchats Spoliation?

As it is, spoliation law isn’t really prepared to deal with ephemeral messaging on such an enormous scale. The law is just unclear enough to put people and businesses using the services in a sticky situation.  If there’s a chance that sending that Snapchat will leave you in trouble in front of a judge, using the services can become a risk not worth taking.

The idea behind sanctioning people who commit spoliation is that their destruction of evidence implies a guilty conscience. Do users have such a guilty conscience when they send relevant evidence via a means they know will self-destruct?  Cyber Dust’s pitch, promising its users messaging that can’t be used as evidence against them, certainly makes this argument at least believable.

The exception is for routine, good faith, deletion of electronic records. Where an electronic messaging service automatically deletes all messages, that deletion is certainly routine.  However, after you know of a lawsuit, is sending a message with relevant evidence via a means you know will self-destruct good faith?  The exception explicitly doesn’t apply where routine operation is used to hide evidence.

What’s more, courts have sometimes required people to prevent the deletion of otherwise routinely deleted data in order to avoid spoliation sanctions. How could a user of Snapchat or Cyber Dust preserve something that is designed to disappear?

There is a clear tension between the dangers of compromising the privacy offered by ephemeral messaging and the dangers of allowing some users of ephemeral messaging to shelter from justice by actively destroying evidence. Putting every user of ephemeral messaging services at uncertain risk of serious evidentiary sanctions is obviously not an ideal solution.  However, neither is allowing messaging services to shelter users from legal repercussions for illegal actions.

It is likely that a determination of whether sending any given ephemeral message could constitute spoliation would be highly fact specific. However, as it stands, the framework around the treatment of ephemeral messaging is so unclear as to leave parties incapable of entering a courtroom fully prepared.  It is high time that law catches up with technology. Snapchat and ephemeral messaging have been around for over half a decade.

In order to truly know whether use of ephemeral messaging services are spoliation, two things need to be firmly established. First, the exact classification of ephemeral messages.  Whether they will be treated like other types of ephemeral data or like other types of social media.  Second, whether their deletion is routine and in good faith.  Seeing as it is nigh impossible to preserve ephemeral messages, will sending them be subject to an exception to spoliation?  Until this murky area of law is cleared up, users of ephemeral messaging services will be forever left in the lurch.



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