Dismissing Student Loans - NY Times article

A recent New York Times article details the struggles of a student loan creditor in collecting defaulted student loans. The article compares the situation to the subprime mortgage debacle where paperwork was lost and therefore the debt lawsuits couldn't be proven.

In one instance, a $31,000 debt was wiped out by a judge when paperwork showing the debt couldn't be presented. In another instance, an $11,000 debt was dismissed. The article reports that there may be upwards of $5 billion total value in these troubled loans.

Nonetheless, "The trusts win many of the lawsuits they file automatically, because borrowers often do not show up to fight."

People often are embarrassed or too despondent to respond to lawsuits. But as this situation shows, it's important to respond to lawsuits! 

What do you do with a check to a deceased person, after the estate is closed?

It’s not uncommon to get a check made out to a deceased relative after the estate is closed. Must you reopen the estate to deposit the one check? The time and expense of that process will likely preclude doing so, unless it’s a really big check.

A Tennessee statute can help.

Tennessee Code 45-2-711 gives banks the ability to pay out small checks to the administrator of an estate, even if the estate was not officially opened, or it has been closes. It reads, in part:

[W]here the qualified executor or administrator of a decedent has been discharged and a check or checks made payable to the decedent is presented to the bank for payment or collection, the bank may, in its discretion, … pay out the proceeds of one (1) or more checks made payable to the deceased, whether written or electronic, all sums that do not exceed two thousand five hundred dollars ($2,500) in the aggregate: To the executor named in any will known to the bank whether probated or not; (B) To any personal representative appointed by a court whether active or discharged.

Thus, a bank has the right to simply cash the check. However, banks are not required to do this. The law simply gives them the option.

As a practical matter, a lot of banks are not willing to do this and the law won’t make them do it. This is one of those instances where a relationship with a bank is valuable. It’s also an instance where a diplomatic lawyer may be able to explain and sweet talk the banker, and save you time and money.

Bad bankers never die, they just lose interest.

Can an executor contest a will in Tennessee?

The short answer to the title question is:

No. A person cannot contest a will that she has a fiduciary duty to uphold. See Love v. Cave, 622 S.W.2d 52, 57 (Tenn. Ct. App. 1981).

Likewise, an executor who “had knowledge of defects in the will but nevertheless proceeded to probate it,” is prohibited from challenging it.

So what can an executor do when a will may be invalid as a matter of law?

If (and this is a big if) she became executor without knowledge of the defect, and acted in good faith, she can resign as executor and file as an interested party. An interested party is one who would benefit if the will challenge is successful. The interested party need not challenge the whole will; challenging a single provision will suffice.

See the recent In Re Estate of Ellra Donald Bostic on this. While it wasn’t a page-turner factually, it does a good job going thru the law.

In Bostic, the trial court had ruled that although Bostic had standing to sue, she was prevented as a former executor. The Court of Appeals agreed that she had standing but said she was also not prevented from bringing the action unless she knew of the defect before she became executor. This was not shown or found by the trial court. Thus, the case goes back to county court.

Attorney work place hazards

An opinion came from the Tennessee Court of Appeals today in Hitachi Capital America Corp v. Community Trust & Banking Company. There, several creditors were fighting over the priority of their liens against a judgment debtor. Hitachi argued that the putative priority lienholder, Community, had a defective judgment. I.e., Community’s judgment did not include court costs, and therefore was not a final judgment. If Community’s order had to be re-issued, then that would put them at the back of the line and mean a lot of money for Hitachi.

On another note, I was discussing in an undergraduate business law class, work place hazards. Unlike yesteryear, I am not worried about a mine collapsing on me, or getting bacteria from a putrid slaughterhouse. On the other hand, I’m sure I’ve lost years off my life from stress and anxiety. Those unhappy attributes come from letters in the mail, or pleadings such as that that must have come in the Hitachi case.

Really dangerous work

I’m imagine that the bank’s lawyers thought this case was behind them, when all of a sudden, they are notified that they may have made a big mistake. It would take months of worry and significant resources to fight a battle a question of law that could go either way.

In Hitachi, the Appeals court agreed with the Chancery court that a final order need not award these costs. Rather, the costs are assessed as a matter of law. Thus, Community had a proper final order, and their lien was in priority to that of Hitachi. Until the order from the Appeals court went down, the attorneys working for the banks had to keep in mind possible malpractice for not including a sentence in the proposed order.

I guess if this job was easy and stress free, everyone would do it.

Rights of First Refusal ... and YOU

Two recent cases concerning rights of first refusal have come from the Tennessee Court of Appeals.

In Geraldine Abbott, et. al. v. Mark Abbott, et. al, No. E2015-01233-COA-R3-CV (July 20, 2016), the relevant deed contained the language “shall have a right of first refusal to purchase said property and once a price is agreed upon.” That price could not be agreed upon and litigation ensued. The putative buyer said that reading the language literally gave the seller the ability to hold up the sale forever. The seller, unsurprisingly, said that it says what it says.

The trial court imposed a “reasonable time” frame on the right of 45 days. The Court of Appeals said even that was a stretch and the right was unenforceable since it was missing an essential term, price. The court cited a case Four Eights, 194 S.W.3d 484, for the proposition that even if the price was confined to “fair market value,” then that was still not definite enough. The Four Eights case concerned a lease option, not aright of first refusal.

In Delain L. Deatherage v. John C. Hailey et. al., No. M2015-02202-COA-R3-CV (July 19, 2016), the court ruled as to whether an email message constituted a binding right of first refusal. The relevant email read

[Defendant] does not want to sell any of his properties at this time. He may need to at some point in the future. He did say you can stay as long as you want and should he decide to do something with the house you will be contacted first. You would have the first right of refusal. And of course if you do find something else you wanted to buy, I would understand. Let me know if I can help with anything.

The plaintiff subsequently renewed her lease (8 months later) and argued that she had turned down other purchasing opportunities. The court found this was not adequate consideration since the renewal was eight months later and unconnected. Also, not buying other properties was not consideration as there was no expectation on the part of defendants that plaintiff would cease searching for properties to buy.

Presumably, if the email had said “thanks for the ROFR – because of that, I will renew my lease with you,” then it would have been enforceable.

It’s curious how a mountain of paperwork, signed at the closing table, is sometimes not enough to adequately record the agreement between buyer, seller, lender and agents. On the other hand, sometimes a sentence in an email can do.

I remember a case many years ago where a wife had given husband a ROFR. They then divorced. The wife transferred the property from herself individually into a single-member LLC. The deed to the LLC had the standard language of “for one dollar and other good and valuable consideration.” The husband then mailed wife a letter with a $1 bill saying "hand it over." It was a jerk move that ultimately failed, but it resulted in years of litigation.

Be careful with your property and your documents!

Dogs in courtrooms (the cuddly ones, not the litigants)

A proposed Tennessee bill would give state judges discretion to allow therapy dogs into the courtrooms. Presumably, the dogs could comfort vulnerable witnesses such as children. A lot of research has demonstrated these benefits and the idea has been used for years in other jurisdictions.

There is an important distinction between these therapy dogs and service animals. The use of a service animal, such as a "seeing eye dog," is protected by the Americans with Disabilities Act, among other things. However, therapy or comfort animals are not offered the same protection

Some county courts already allow the use of therapy dogs, but the proposed bill would remove any concerns about the legality of the use. Judges are often nervous about novelty, when there will be a losing party looking for grounds to appeal.

One sticking point for the use of therapy animals is how does one know when it is a real therapy animal, and not just a pet. This article noted that one of the sticking points of the proposed bill was whether the therapy animal must have a record of its training. This is a trust issue. In the court context, it is unlikely for someone to claim that her pet is a therapy animal in order to get it into the courtroom. On the other hand, in the housing rental business, tenants may be tempted to call their pet a therapy animal in order to get around "no pet" provisions and policies.

Requiring registration, while sounding logical, has the effect of prohibiting many animals. Someone may have a dog that makes life much more manageable for her without going to the trouble of getting training or registration. It doesn't take always take any training for a dog to be able to comfort its owner. A child subpoenaed for a court hearing might not have the time or money to get a dog properly trained and registered.

In all likelihood, requiring anything more than nominal registration would have a chilling effect on the use of such animals.

For more information, you can check out the Courthouse Dogs Foundation.

Cry, Burkina

I love Burkina Faso. It broke my heart to see the terror attack there. I spent some formative time in Burkina Faso in my late 20’s. It was an epic adventure to me, every day was radically different from the one before, and impossible to plan. I realized how much I had to learn, how adventure is all around me, how much of what I view as success is really not so. There’s an old line that we learn most from the places we go, the books we read and the people we meet. Hear, hear. 

Life is much rawer there. That rawness makes for a lot of pain, but a lot of heroism as well. I admired many of the people I came across, who had to make impossible choices that I will never have to encounter. 

At the time, one UN agency ranked Burkina as the third poorest country in the world. Most people I met would eat rice once or twice a year, on holidays. Nonetheless, many people I visited happily killed a goat for our supper to show their hospitality.

We would often ask village patriarchs how many children they had. This was a confusing question that they had not been asked. They would take several minutes to count them up. Children died frequently, and so they weren’t given names until over a week of life. When a child died, you would hear a ritual wailing all night by the mother. If it wasn’t ritualized, then the spontaneous grief would be too much for the mother to endure, over and over during life.

At the time, the country had one overpass within its borders (the things we have at each interstate exit). It had the highest per capita use of mopeds. I sat on the back of a live, “holy” crocodile there. I had an elephant charge at me. I saw an exorcism. I was a guest at a mass Eid al-Adha outdoor service (one of Islam’s two main holidays). Most of the Muslims there think it absurd that Christians and Muslims don’t get along everywhere.

Burkina Faso had a burgeoning cotton industry. I saw black women in colorful clothes and head rags stooped over, picking cotton, and that hit me, as a student of Southern history. A back of the napkin calculation showed that people were willing to work for $0.03 per hour in the cotton fields.. Even with the low wage, Burkinabe cotton can’t compete with US cotton because of subsidies and dumping. I know there are arguments for and against that, but it still seems wrong.

I was the first lawyer of any nationality that most of the people I met in the bush had ever seen. I often had to defend myself against stereotypes of greedy lawyers. I went to the appeals court in the capital, met a few lawyers and watched the proceedings. The rule of law is not too meaningful there. Almost anyone, when coming into a little money, spent it quickly. Saving for the future was too risky. Someone would just come and take it, in one fashion or another. As an example, there was a coup there a couple of years ago. The Big Man that had ruled for many, many years sought to change the constitution so he could keep ruling (why he was worried about the constitution, I don’t know). When a contingent went into his Qaddafi-financed seat of power to confront him over this, he simply fled. Thus, the country had no head of state. One of the contingent declared himself caretaker of the government and was the new ruler.

I remember sitting at a roadside “restaurant” where a lady would fry a chicken for you. Me and my compatriots were talking about the future and how hard it was to discern the proper path, because of all the choices. Meanwhile about a dozen little boys were circling around us, waiting for us to finish the chicken. No matter how clean we picked it, they would make another meal out of it, eating the sinew and many of the bones. Those little boys had two options for the future: become a shepherd, or go to the city and sell phone cards. I would often ask little boys what they wanted to do when they grew up, and they always said “come to America!” I thank God I’m already here and pray the Burkinabe will know peace.

Transferring Conservatorships from Other States to Tennessee

Filing for a conservatorship is a well-worn path. Although there are lots of ins and outs to it, it basically requires a petition, an affidavit from a doctor stating the need for the conservatorship, and a few procedural items, like an ADA notice and proposed orders. Many courts provide their own preferred forms, such as here.

Depending on the court, the process then moves pretty fast, relative to other litigation. The chancellor appoints a guardian ad litem (if needed) who meets the proposed ward and issues a report. The chancellor then sets a hearing and hopefully issues an order. The conservator can then post a bond and take charge.

When a ward moves, the process is different. Most states, including Tennessee, have adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. This act clarifies which state’s law controls and provides “registration” of an out of state conservatorship in another state. It also provides a slightly cumbersome method of transferring the conservatorship without having to reestablish the grounds for the conservatorship.

Also, if the conservatorship is disputed in some way, this Act can save a lot of money and heartache as it limits forum-shopping.

If the conservatorship (or guardianship) exists in a state not a party to the Act, it can still be moved. The Tennessee statute for transferring conservatorship, T.C.A. § 34-8-302,  requires attaching a copy of an order from the transferring court. However, the transferring court (the other state) often requires an order from the receiving court. The conundrum can be resolved by getting a provisional order from the receiving (Tennessee) court.

After receiving the provisional order, the petitioner then needs to get an order from the transferring state. This often requires hiring local counsel in the transferring state. Once that order is obtained, it can be filed with the Tennessee court for issuance of the final order.

Despite the time and efforts, moving the conservatorship is essential when the ward moves. Thankfully, the Chancery Court in Hamilton County is easy to work with. Failing to transfer a conservatorship can get you in trouble, so make that a priority when moving.

Etsy, Copyright, and You: Please don't take down my store!

Etsy is a place where creative people can go to showcase their talents and earn money from their creativity.  It has grown at a steady pace has even the starting off point for many businesses to make the move from Etsy to an official online store based on customer interest.  Because the online marketplace is an extension of creativity and intellectual exploration, many entrepreneurs and artists find themselves losing their brand presence just as they're breaking out of the gate.  The intellectual property that is exhibited and sold using Etsy requires no less protection of items you would sell through a website or Amazon store. 

What is Intellectual Property and How is it Protected

Intellectual property (IP) is a legal umbrella term that is used to describe those creations of the mind or intellect that can have potential commercial success.  That includes fiction, art, designs, music, film, etc.  Each “type” of IPhas its own types of protections.  Trademarks protect logos, designs, or symbols, while copyrights protect expressions of creation like a song, work of fiction, paintings, etc., while patents protect innovations. 

Copyrights are natural and exist from the moment the idea is expressed until 70 years after the death of the creator.  Whether the item is registered with the Office of Patents and Trademarks or not, the item is wholly yours from its creation.  These protections are added value.  However, being registered certainly helps should there be a dispute over the creative expression in a court of law.  The ability to sue and have adequate protections is very important when placing your expression in the public realm.

Etsy and You

Several Etsy merchants in Tennessee and Georgia have had their items taken down and their store suspended for copyright infringement on items their creators had no idea were copyrighted or trademarked. This often happens when a seller reports on a competitor who is doing well, ostensibly at the seller’s expense. There are copyrighted or trademarked items you may not even realize can be trademarked or copyrighted; making a painting of a green and yellow tractor, for example.  It doesn't even have to say John Deere. They patented a specific shade of green and yellow for tractors.  An “M” drawn in a certain way is trademarked by Madonna. Usually, Etsy merely shuts down your store, but depending on your sales, you can be liable for money damages. Conversely, the same can be true of you if you see your copyrighted expression being used by other sellers.

Although the legal principles may be straightforward, applying the law to the particular situation may be tricky and costly.

Etsy may sometimes shut-down-first-ask-questions-later. In Websters Chalk Paint Powder, LLC v. Annie Sloan Interiors, Ltd. (N.D. Ga. 2014), the plaintiff and defendant fought over the use of “Chalk Paint” in their respective logos and advertisements. Plaintiff sold its products on Etsy. The defendant sent notice to Etsy of the potential trademark infringement. Etsy’s response was to unilaterally take down the part of plaintiff’s Etsy store content relating to the Chalk Paint. The federal district court ultimately ruled that the plaintiff did not have jurisdiction over defendant in the lawsuit and dismissed the plaintiff’s lawsuit. Nonetheless, the defendant had lost sales and prestige from losing that part of its online store.

For further reference, you may want to check out Etsy’s information on copyright. Also, YouTube has a well known “Copyright School” that provides a good introduction+ to copyright in the online context.

Television's Evil Influence in the Conasauga Circuit

I was privileged to interview retired federal district judge Robert Vining, Jr. yesterday in Dalton. Among many other fascinating stories, he told me of an interesting terminology change in Georgia law.

Judge Vining was the first solicitor general of the Conasauga Circuit (Whitfield and Murray counties). Prior to that it was 5 counties called the Cherokee Circuit. A solicitor general prosecuted criminal cases on behalf of the state.

One of the top shows in those days was Mr. District Attorney, which had started as a radio show and then to television. In the radio show, the main character had no name other than Mr. DA. Vicki Vola played the DA's essential secretary.

Vicki Vola, the DA's right-hand woman

The popular show caused the solicitors general across the state to want to rename the position "district attorney." Judge Vining said he strongly opposed the silly cave-in. Nonetheless, he was in the minority and he then became the first "district attorney" of the circuit.