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    Trish Sifka

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    PROPERTY: Virginia Civil Forfeiture Eclipsed by Tenancy-by-Entirety Immunity

    Posted by Trish Sifka on Thu, Apr 8, 2021 @ 10:04 AM

    The Lawletter Vol 46 No 3

    Trish Sifka—Senior Attorney, National Legal Research Group

            An English Judge and Jurist, Sir Edward Coke, declared in 1604: “[T]he house of everyone is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose[.]” This famous quote from the Court of King’s Bench has been simplified to essentially mean that “every man’s home is his castle” and, thus, deserves special protection. Sir Coke stated this as part of his ruling in Peter Semayne v. Richard Gresham & Estate of George Berisford. Gresham and Berisford were joint tenants of a house in Blackfriars, London. Berisford died while still owing a debt to Semayne, so Semayne sued for writ of attachment against the home.

            In Virginia, real property held as tenancy by the entirety is especially sacrosanct. Where a tenancy by the entirety in the fee simple is created, the property is completely immune from the claims of creditors against either husband or wife alone. Rogers v. Rogers, 257 Va. 323, 512 S.E.2d 821 (1999); Pitts v. United States, 242 Va. 254, 408 S.E.2d 901 (1991). “The tenancy by the entirety may be severed only by mutual consent of the spouses or by divorce.”  In re Bunker, 312 F.3d 145, 151 (4th Cir. 2002); see also In re Sampath, 314 B.R. 73, 92 (Bankr. E.D. Va. 2004) (“The tenancy by the entirety estate retains its full vitality in Virginia.”). Accordingly, a spouse cannot waive contest to forfeiture of real property held as tenancy by the entirety in a plea agreement because that would result in severing of the title without the other spouse’s consent.

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    Topics: property, civil forfeiture, Trish Sifka, tenancy by the entirety, state forfeiture actions, property owner's rights

    FEDERAL TORTS CLAIMS ACT: Feres Doctrine Cracked? Opening of Pandora's Box or Further Encasement in Stone?

    Posted by Trish Sifka on Thu, Oct 1, 2020 @ 08:10 AM

    The Lawletter Vol 45 No 5

    Trish Sifka, Senior Attorney, National Legal Research Group

         On December 20, 2019, President Trump signed the National Defense Authorization Act ("NDAA"), SB 1790, 133 Stat 1198, into law. This legislation included a substantial "crack" in the over 70-year-old, court-imposed Feres doctrine, which barred tort claims by military members against the United States for injuries incurred incident to service. Under this new provision in the NDAA, the Department of Defense ("DOD") can administratively receive, review, and settle tort claims filed by military members for personal injury or death caused by the negligent or wrongful act or omission of a DOD health-care provider. However, there are limitations. The injuries must not have been sustained in a combat zone. Claims are limited to medical malpractice claims against military medical personnel at military medical facilities. The provision also sets a two-year statute of limitations except for 2017 injuries that are filed in 2020.   Damages will be based on average federal court damages data for similar injuries. Claimants will be allowed to be represented by an attorney, but there is no judicial review.

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    Topics: FTCA, Feres Doctrine, claims against DOD health-care provider, National Defense Authorization Act

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