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The Lawletter Blog

Vanguard Profiles NLRG

Posted by Nicole Prysby on Wed, Apr 5, 2017 @ 11:04 AM

     The Vanguard Law Magazine recently profiled the National Legal Research Group in its national magazine, focusing on the attorneys that make up the firm and the specific benefits NLRG provides to its attorney clients. The staff of 35 attorneys assists attorneys in all 50 states and does some international work. President John F. Buckley explained that the key to NLRG’s success is the deep experience of the staff—NLRG attorneys typically have 20-25 years of experience, working on projects in multiple jurisdictions. That experience allows NLRG attorneys to act as consultants for its clients, helping attorneys determine if they have a case, and then assisting with drafting of pleadings, arguments, and briefs. Since the firm was founded nearly 50 years ago, NLRG attorneys have worked on over 173,000 cases, in every jurisdiction. In additional to litigation-related work, many NLRG attorneys write books on various area of the law, including family law, local government, and human resource law.  Read the full story at https://www.vanguardlawmag.com/case-studies/national-legal-research-group/.

 

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Federal Tort Claims Act—Effect of State Time Limitations

Posted by Alfred C. Shackelford III on Tue, Mar 7, 2017 @ 11:03 AM

The Lawletter Vol 42 No 2

Fred Shackelford, Senior Attorney, National Legal Research Group

      Can a suit against the federal government be maintained even though it would be time-barred under state law? That was the issue in a medical malpractice action arising in Louisiana. In Bagley v. United States, No. 8:16-CV-30, 2016 WL 6082023 (D. Neb. Oct. 18, 2016), the plaintiff underwent surgery at an Air Force base in Louisiana in 1997. Over the next 15 years, he experienced pain in the area of his right groin. In 2013, an x-ray revealed that a metallic object had been left in the plaintiff's body during the 1997 surgery. Within two years after discovering the object, the plaintiff filed an action in Nebraska against the United States under the Federal Tort Claims Act ("FTCA").

     The government moved to dismiss on the ground that the action was time-barred under Louisiana law, where the cause of action arose. Under a Louisiana statute, La. Rev. Stat. Ann. § 9:5628, medical malpractice actions must be filed within one year after the negligent act or omission, or of discovery thereof, but in no event later than three years after the negligent act or omission occurred. Under the FTCA, there is a two-year limitations period, which accrues in medical malpractice actions when the claimant discovers or reasonably should have discovered the alleged malpractice.

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Topics: Federal Tort Claims Act, suit against federal government, time-barred by state law

TAX: Legal Issues Arising from Tax-Related Identity Theft

Posted by Lee P. Dunham on Tue, Mar 7, 2017 @ 11:03 AM

The Lawletter Vol 42 No 2

Lee Dunham, Senior Attorney, National Legal Research Group

     Tax-related identity theft occurs when someone uses a taxpayer's stolen Social Security number to file a fraudulent refund. Often, the taxpayer is not aware of the identity theft until he or she files a valid tax return and is notified by the Internal Revenue Service ("IRS") that multiple returns have been filed in his or her name. Its incidence, like that of other forms of identity theft, has increased in recent years due to hacking and phishing scams that have enabled cybercriminals to obtain far-reaching access to taxpayers' personal data, including Social Security numbers.

     The schemes of the criminal defendants described in United States v. Philidor, 717 F.3d 883 (11th Cir. 2013), and United States v. Gonzalez, No. 13 CR 154 RWS, 2014 WL 316984, at *2 (S.D.N.Y. Jan. 27, 2014), are illustrative of the nature and scope of the problem.

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Topics: tax, identity theft, stolen Social Security number

FAMILY LAW: Custody Is Determined in Child's Home State, Not State Where Divorce Is Filed

Posted by Sandra L. Thomas on Tue, Mar 7, 2017 @ 10:03 AM

The Lawletter Vol 42 No 2

Sandra Thomas, Senior Attorney, National Legal Research Group

      Another case has confirmed the primacy of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") over local jurisdictional rules that conflict with that statutory scheme. The Court of Civil Appeals of Alabama has reversed a trial court order that held the trial court had subject-matter jurisdiction over a child custody petition that was filed in Alabama by the child's father at the time the father filed a petition for divorce from the child's mother. Ex parte Holloway, No. 2150821, 2016 WL 4493653 (Ala. Civ. App. Aug. 26, 2016).

     The parents were married in Alabama in October 2014 and they separated in June 2015. The father filed a complaint for divorce October 23, 2015 that included a request for custody of the parties' minor son, who was born September 20, 2015. The father alleged that the mother had abandoned the marriage and had moved to Mississippi to live with her mother. Alabama law provides: "Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper." Ala. Code § 30-3-1.

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Topics: family law, custody, UCCJEA, home state v. divorce state

TRUSTS: Charitable Trusts and Bankruptcy Proceedings

Posted by Matthew T. McDavitt on Tue, Mar 7, 2017 @ 10:03 AM

The Lawletter Vol 42 No 2

Matt McDavitt, Senior Attorney, National Legal Research Group

     Where testators or settlors create charitable gifts in trust for named institutional beneficiaries, when the contemplated distribution is ready to be made, sometimes it is found that the intended charity is involved in bankruptcy proceedings. Therefore, the question arises as to the proper disposition of such charitable gifts in trust to the bankrupt institutional beneficiaries.

      There is little law, even nationally, discussing the proper course of action in the event that a named charitable beneficiary is found to be in bankruptcy at the time of distribution. It is logical that a testator who makes a charitable gift would not want his or her gift to be subject to collection by the intended recipient institution's bankruptcy trustee, as such action would solely benefit the charity's creditors, rather than advancing the intended charitable purpose. There is at least one federal opinion interpreting and predicting state law on this point, holding that: (a) Under Massachusetts law as predicted by the First Circuit Court of Appeals, a charitable organization that has ceased to perform charitable work, and that is incapable of redirecting funds for charitable purposes, is ineligible to receive a charitable bequest or gift, absent a contrary provision in will or trust instrument; and (b) It is "difficult to imagine" that, absent special circumstances, a testator seeking to advance general charitable interests would ever intend her gift to be used for the benefit of creditors rather than to promote charitable purposes actually intended. In re Boston Reg’l Med. Ctr., Inc., 410 F.3d 100 (1st Cir. 2005).

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Topics: trusts, charitable trust, bankruptcy proceeding, proper disposition

CRIMINAL PROCEDURE: Ninth Circuit Adopts "Plain Hearing" Doctrine

Posted by Jason Holder on Thu, Feb 2, 2017 @ 16:02 PM

The Lawletter Vol 42 No 1

Jason Holder, Senior Attorney, National Legal Research Group

     In United States v. Carey, 836 F.3d 1092, 1093 (9th Cir. 2016), federal agents secured a wiretap order under the Wiretap Act, 18 U.S.C. §§ 2510-2522. The order was based upon evidence that Ignacio Escamilla Estrada ("Escamilla") used the number to smuggle and distribute drugs. Carey, 836 F.3d at 1093. During the seven-day wiretap, the agents realized that Escamilla was not the one using the phone. Id. Nevertheless, believing that those on the phone may be connected to Escamilla, the agents continued listening. Id. Authorities ultimately identified Michael Carey as the unknown speaker. Id. The investigation revealed that Carey was not involved with Escamilla. Id. at 1094.

     Carey moved to suppress all of the evidence derived from the use of the wiretaps, arguing that the government had unlawfully relied on the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Carey. Id. The district court denied Carey's motion, explaining that (1) the government had complied with the statute for the wiretap order against Escamilla, and (2) that there was no requirement for a separate showing of necessity once the agents concluded that T-14 was not used by Escamilla because the agents reasonably believed that the callers and calls might be affiliated with Escamilla or other offenses. Id. at 1095.

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Topics: Ninth Circuit, "plain hearing" doctrine, wiretapping, criminal procedure

PROPERTY: Flipper's Folly—Virginia Supreme Court Rules That Buyer Not Entitled to Reimbursement After Improving Wrong Property

Posted by Emily Abel on Thu, Feb 2, 2017 @ 16:02 PM

The Lawletter Vol 42 No 1

Emily Abel, Senior Attorney, National Legal Research Group

      In a recent decision, the Virginia Supreme Court reiterated the importance of using due diligence and carefully examining the title when purchasing property. Washington v. Prasad, 791 S.E.2d 566 (Va. 2016), involved a suit by a purchaser against his neighbors to recover the funds the purchaser expended as a result of erroneously improving his neighbors' property instead of his own.

     After receiving notice of a public action, the purchaser, a retired chemical engineer turned house "flipper" accessed the County assessor's records and reviewed the property card for the Parcel 8-C, the parcel being auctioned. The property card correctly listed the street address as 17211 Shands Road, but incorrectly showed a picture of the neighbors' home, Parcel 9-A. The reason for the mix-up was that the neighbors' house on Parcel 9-A had previously been numbered as 17211, but the street number changed to 17201 years ago. However, the neighbors never changed the number at the front of the house or on the mailbox, thus, the neighbors' property appeared to be 17211 Shands Road to passers-by.

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Topics: property, purchasing, due diligence

FAMILY LAW: Imputing Investment Income for Purposes of Spousal Support

Posted by Brett R. Turner on Thu, Feb 2, 2017 @ 16:02 PM

The Lawletter Vol 42 No 1

Brett Turner, Senior Attorney, National Legal Research Group

      In Curtis v. Curtis, 887 N.W.2d 249 (Minn. 2016), the wife sought spousal support in a divorce case. But she received, as part of her share of the marital property, an Ameritrade account worth over $2 million.

     The trial court held that the income from this account constituted income for purposes of spousal support. The account was invested in growth-oriented securities and produced income of less than $3,000 per year. This income was not sufficient to meet the wife's support needs. But the husband proved that the account could be reinvested into income-oriented securities at a rate of 7% per year and earn $9,500 per month in income. On this basis, the trial court imputed $9,500 per month income to the wife, and found that she had no need for spousal support. Minnesota's intermediate appellate court affirmed, and the wife appealed to the Minnesota Supreme Court.

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Topics: family law, spousal support, imputing investment income

CRIMINAL LAW: Sentencing—New Rule in Johnson Was Substantive as Applied to Advisory Sentencing Guidelines

Posted by Mark Rieber on Thu, Feb 2, 2017 @ 13:02 PM

The Lawletter Vol 42 No 1

Mark Rieber, Senior Attorney, National Legal Research Group

     In Johnson v. United States, 135 S. Ct. 2551 (2015), the U.S. Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), which defines a "violent felony" to include a felony that "involves conduct that presents a serious potential physical injury to another," 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. The Supreme Court subsequently announced that the rule in Johnson was "a new substantive rule that has retroactive effect in cases on collateral review." Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

     In Carpio v. United States, No. C16-0647JLR, 2016 WL 6395192 (W.D. Wash. Oct. 28, 2016), the court applied the holdings in Johnson and Welch to the defendant's claim, in a 28 U.S.C. § 2255 petition challenging his U.S. Sentencing Guidelines sentence, that the identically worded residual clause in U.S.S.G. § 4B1.2(a), defining "crime of violence," used to enhance the defendant's sentence, was unconstitutionally vague. The court in Carpio held that the Johnson holding applied with equal force to the residual clause in § 4B1.2(a) of the Sentencing Guidelines and, therefore, it was unconstitutionally vague.

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Topics: criminal law, advisory sentencing guidelines, Armed Career Criminal Act, residuary clause

PROPERTY/MORTGAGES: Implied Duty of Good Faith: Impact of Loan Modification Request

Posted by Alistair D. Edwards on Tue, Jan 3, 2017 @ 15:01 PM

The Lawletter Vol 41 No 11

Alistair Edwards, Senior Attorney, National Legal Research Group

     It is not unusual for a borrower (mortgagor) who is facing foreclosure to attempt to obtain a loan modification from the lender (or the servicer acting for the lender). However, even if the borrower requests a loan modification, this does not automatically put the foreclosure process on hold. Nor does the lender (mortgagee) automatically violate some sort of duty owed to the borrower by proceeding with the foreclosure even though a loan modification has been requested.

      For example, in Afridi v. Residential Credit Solutions, Inc., No. CV 15-13632-NMG, 2016 WL 3017382 (D. Mass. May 24, 2016), the U.S. District Court for Massachusetts recently held that the lender (or the servicer acting for the lender) did not breach its implied duty of good faith by proceeding with a foreclosure sale while the borrower was attempting to obtain a loan modification. In that case, the servicer sought to foreclose, and in order to avoid that outcome, the borrower applied for a mortgage modification under the Home Affordable Modification Program ("HAMP"). The servicer initially denied the application as incomplete. The servicer ultimately provided a list of the missing documents and the borrower updated his application. However, the servicer scheduled a foreclosure sale without first rendering a decision on the borrower’s modification application. The servicer ultimately denied the application.

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Topics: mortgages, property, loan modification, foreclosure proceeding not put on hold, no breach of implied duty of good faith

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