Mortgage foreclosures in Madison County

This letter from the Madison County Clerk caught my eye. I emphasized the part below that caught my eye (my apologies for the formatting):

CLERK of the MADISON CIRCUIT COURT


April 20, 2007

Ludy Watkins, Madison County Clerk

Re: Mortgage Foreclosures


To Whom It May Concern:


Do to our Local Rules and the large number of Mortgage Foreclosures we are going to change our way of filing Foreclosures. After May 1, 2007 you will no longer be able to specify the court in which you want to file in. We will be doing the Mortgage Foreclosures on a rotation system. Superior I, Superior III, and Circuit courts will be included in the rotation. All other filings will remain the same.

Take this as a sign of our local economy. What impresses me with this change in procedure is that we have had large numbers of foreclosures in this county for most of the past twenty years. I read this to mean that we are having even more foreclosures than we have had. Not good, folks, not good at all.

How this ties into the subprime lending (see my post here on that subject) I have no good answer but some guesses. Subprime mortages target those borrowers whose income and credit history make them a risky bet. That could describe quite a few residents of Madison County. So, there may be a connection.

Indiana's pre-paid funeral trusts, part 1

A disclosure before going any further - my father is a funeral director. All this means is that I have seen both sides of the pre-need funeral trust issue. My father drummed into me one good, practical use for this kind of trust: it removes the burden from the survivors in selecting the funeral.

What I have learned about funeral trusts since beginning my practice in 1987 is that people think they can put their funeral arrangements in their Wills. No can do. Funeral trusts create the means for people to set out and control their funerals.

In my opinion, estate planning ought to include pre-need funeral trusts. Pre-need funeral trusts provide a valid deduction for Medicare purpose. So for that reasons as well as those I have already given are why I think pre-need funeral trusts need to be included into any estate planning.

Indiana has three statutes relating to funeral trusts: Prepaid Funeral Plans and Funeral Trust Funds Established Before 1982 (IC 30-2-9), Funeral Trust Funds, Payment of Funeral (IC 30-2-10), and Burial Services, or Merchandise in Advance of Need (IC 30-2-13). I will be discussing all of them in other posts.

More electronic disovery resources

Litilaw has articles on electronic discovery. Here is how the site describes itself:

Welcome to our free collection of hundreds of recently published articles of interest to litigators and related legal professionals. All articles are full-text, written by lawyers and have been published as part of continuing legal education (CLE) seminars, in legal journals, or are of similar quality. Litilaw links to copies of articles available on the internet, or hosted by us at the author's request.

The Metropolitan Corporate Counsel site has an article,The New Federal E-Discovery Rules: An Expository Narrative, by Richard A. Schneider, Matthew S. Harman and Robert B. Friedman, which I need to read a little bit closer but these paragraphs give me pause about problems in federal court:

"Quick peek" agreements are agreements to speed up productions and reduce costs by agreeing (1) to let the requesting party take a "quick peek" at ESI without the producing party undertaking the time and expense in advance to review the entire population of ESI to eliminate non-responsive and protected information; (2) during the course of its "quick peek," the requesting party then flags the particular ESI records it wants the producing party to formally produce; and (3) the producing party then limits its responsiveness and privilege review to the set of flagged documents, actually producing only those that are responsive and not privileged, with the requesting party agreeing that it will return, not use and not claim waiver with respect to any non-responsive or privileged information that it saw during the "quick peek."

Most companies, however, likely will be unwilling to accept the central premise of a "quick peek" agreement which involves turning over ESI without any advance review. Even if privileged materials are returned and not used, most companies will not want the opposing side to ever see such material in the first place. Clawback agreements are agreements to return unwittingly produced protected materials without claiming waiver. An important risk with quick peek and clawback agreements is that third parties might claim that any non-waiver agreement does not bind them and they are free to claim that a waiver occurred.

As far as I can find, Indiana's Rules of Trial Procedure have no similar provision but Indiana's discovery rules are in the process of amendment. The proposed amendments are to be found at this link. (PDF format)

Does your company do criminal background checks?

Then read the Virtual Chase's article, National Criminal Background Checks: Myths, Realities & Resources. Here are the article's conclusions:

1. Proprietary fee-based databases offer geographical breadth at reasonable cost to criminal records research that would be time-consuming and prohibitively expensive using local, on-site research.

2. Online searches and on-site research risk missing information for a variety of reasons, and the industry standard maintains there is no substitute for searching court records at the local level. The diligent researcher will pursue every available avenue to search down to the lowest possible local level in conducting criminal background searches -- and will recognize there still can be no guarantee of 100% certainty.

3. Given the inconsistency of data collection among and between local and state jurisdictions, varying standards for updating data and for insuring its accuracy, the lack of any standard for collecting information on criminal offenses, and increasing restrictions imposed on information in public records by jurisdictions concerned about privacy rights, a nationwide criminal records search remains a goal, not a given.

I had a telephone recently from a woman not initially hired because of an error in a background check. They are not perfect - as one of my larger business clients knows. The whole article deserves reading.

For Lawyers: Apply for scholarships to Solo & Small Firm Conference

A friend forwarded this me via e-mail. I am not certain I have that many attorneys reading this blog but here goes:

The YLS is awarding two scholarships for the Solo & Small Firm Conference scheduled for May 31-June 2 at the Sheraton Hotel located at Keystone at the Crossing, Indianapolis . For details about the conference, visit www.inbar.org.

Applicants must be a member of the Young Lawyers Section, in a firm with less than 15 attorneys, and have practiced less than 3 years.

Please send your résumé (or bio) and letter of interest (including your name; name of firm/employer; number of attorneys at firm/employer; number of years in practice; why you would like to attend the conference and what you hope to gain by attending; and why you believe you should receive the scholarship) to Paula Chan at the ISBA no later than Friday, May 11, pchan@inbar.org, 317-266-2588 (fax) or ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204.

Scholarship will cover the full conference registration and two nights stay at the Sheraton Hotel.

Paula Chan

Assistant Director of Sections, Meetings & Events

Indiana State Bar Association

Phone: (317) 639-5465 ext. 26/(800) 266-2581

Fax: (317) 266-2588

www.inbar.org

Blog review

A new blogs relating to business and law came to my attention this week that I found interesting:

BSA Audits. I hear little these days about the Business Software Association suing and raiding businesses for unlicensed software. I the early through mid-nineties I recall the Association making a lot of news over businesses using unlicensed software. That kind of news belongs nowadays to the music and movie industries suing college students and younger kids for downloading movies and music. However, the BSA still lives and the attorney running this blog is keeping track of them. I recommend my business clients take stock of their software and make sure that all of it is licensed, but I must admit it has been along time since it has been in the forefront of my brain. That may need to change.

Tax sales - law changing

A head's up to anyone facing a tax sale or looking to purchase at a tax sale, a new Bill changing the law is on its way to the Governor. The following is a synopsis of the new law:

Tax sales. Limits the circumstances under which a tax sale purchaser may terminate the purchase before conclusion and receive a refund of a part of the purchase price. Reduces the amount of the refund. Requires reinstatement and collection of any remaining delinquencies after the terminated purchase. Provides a procedure for searching the records for an alternative mailing address when service of notice of an order for the sale of property for delinquent property taxes is initially unsuccessful. Eliminates an obsolete reference to the dates when a tax sale must be held. Reduces the period before a tax sale may be conducted when property has been offered at sales without success. Prohibits a tax sale purchaser who fails to make payment and complete the sale from participating in the next succeeding tax sale in the county. Permits a tax sale to be conducted by electronic means. Provides that any civil penalty collected because a purchaser fails to pay the bid must be deposited in the county general fund and not the common school fund. Requires a purchaser of property at a tax sale to certify certain additional costs that must be paid by a redeeming property owner not earlier than 30 days after the tax sale. Requires pleadings and motions related to a defense to a judgment and order of sale to be served on the county auditor and county treasurer. Permits a county before August 1, 2007, to use the expedited sale procedures repealed by HEA 1102-2006 for property that failed to sell at a tax sale conducted before 2007.

If the Governor signs the bill, this should take effect on July 1, 2007.

Good advice on handling government inspectors

OSHA, health department inspectors, government inspectors of any sort raise all sorts of problems for business owners. Assuming that the business owner has made a good faith effort to comply with the regulator's inspectors, I thought the following two paragraphs from the New York Times good advice for dealing with inspectors:

Restaurateurs and health department officials alike acknowledge that when an inspector calls, tensions run high. “It can be a deadly experience, and what you don’t want to do is let your emotions get away with you,” said Steve Millington, the general manager of Michael’s, the media-crowd hangout a few doors from Brasserie LCB.

“It’s like a cop giving you a speeding ticket,” he said. “You’ll be there until the cows come home. There’s almost a petulance to the inspectors. You really need to shut up and be servile to them.”

The Times headlined the story with Health Inspector Calls and Chef’s Pride Cracks. The article reads as a pretty good case study of what not to do when the inspector calls. Diplomacy has its place in this world.

Reading about: mortgage crisis news, the problems of e-mail,

I admit this post is mostly an attempt to catch up with the news. Some interesting tidbits that I do not think need a full post - especially after a rather long day.

Looks like some lenders are stepping up to the plate and dealing with the subprime mortgage mess.

Freddie Mac, the government-sponsored company that is the second-largest buyer and guarantor of home loans in the country, announced Wednesday that it will buy as much as $20 billion in fixed-rate and adjustable-rate mortgages to help borrowers with high-priced loans keep their homes. The new mortgages, expected to be available by midsummer, will include loans with longer fixed-rate terms.

Fannie Mae, the No. 1 mortgage financer, also is offering new options so that lenders can help subprime borrowers refinance out of high-interest adjustable-rate mortgages or other difficult loans.

And Washington Mutual Inc., one of the country's largest financial institutions, said it will refinance up to $2 billion in subprime mortgages to help borrowers avoid default and foreclosure, allowing them to apply for discounted fixed-rate home loans or other refinancing alternatives. Subprime loans comprise only about 6 percent of Seattle-based Washington Mutual's mortgage holdings, but they dealt a heavy blow to its first-quarter earnings, which slid 20 percent.

If you or someone you know has one of these subprime mortgages, I strongly suggest checking out these offers. The AP article obtusely headlined Lending giant moves indicate cooperation,can be found at this link.

This article, Technology Quiz: How Does E-Mail Disappear?, covers a lot of the territory I wrote about in Electronic discovery - E-mails, Enron, and Karl Rove. The article's style differs a good deal from the article I wrote about and that might make for a more interesting read, but I suggest reading this article only supplements my earlier post and not vice versa.

I get this e-mail newsletter from Lumen Legal. Sometimes they have good articles and sometimes the articles are just okay. Ignorance about e-Discovery No Longer an Excuse falls under the latter category. Nothing in the article explains its conclusion: "[f]ailing to show litigators and regulators how you have tried to preserve data can be as dangerous as not knowing where it is at all...."

I am still pondering why I want to find a Federal Employer Identification Number, but this very short article, Find a Federal Employer Identification Number informs me that there are services out there for finding this information. The article also has three screenshots.

Well, that is all for today.

Non-compete agreements - another horror story

Q: When should you write the non-compete agreement for your business? A: Never.

Consider this story from Business Week:

What makes an effective noncompete agreement? Stephen Skertich found out the hard way. In 2001, Skertich bought Pro Med Staffing, an Orland Park (Ill.) nurse staffing company with about $3 million in sales. He drew up noncompete agreements for his six employees, a standard practice in the staffing business. In 2006, when one of his scheduling managers bolted to a competitor, Skertich was glad he'd taken precautions—especially after nurses who had been using Pro Med to find work switched to the competitor. But when Skertich consulted with his attorney, he learned his noncompetes probably wouldn't hold up in court. They were too broad, limiting neither time period nor geography. "Even though we hadn't been hurt that badly this time, I realized next time it could certainly be worse," says Skertich. His new noncompetes run for one year and cover seven nearby counties.

As Skertich discovered, the devil is in the details. States differ in their approaches to noncompetes. In California, they are practically unenforceable; in other states, such as Illinois, they can work just fine. But all courts frown on overly broad agreements. Your noncompetes will be stronger if they apply to employees whose specific expertise—close ties to customers, knowledge of trade secrets—means their defection could cause real damage. If you are in a state where noncompetes are hard to enforce, consider other ways to cultivate loyalty among key employees. When hiring, ask candidates if they are subject to anyone else's noncompetes—potentially saving you from a court battle or from having to ditch someone you've invested in.

This is real life and not The Twilight Zone. I keep repeating this over and over, but think about the true costs of self-help. Compare the cost of having an attorney draft a good non-compete agreement against the costs of no non-compete or a bad non-compete agreement and an employee taking advantage of your unwillingness to get proper legal help.


For another real life story, take a look at this article from Editor & Publisher:

CHICAGO MediaNews Group Inc. CEO William Dean Singleton says he never had a hint that Publisher Par Ridder was planning to decamp from the St. Paul Pioneer Press to the rival Minneapolis Star Tribune -- and allegedly take a ton of confidential material with him.

***

"We let him into everything," Singleton said. "We had a very good relationship with him while he was publisher. In typical MediaNews style, we left him alone to do his job. We give our papers a lot of autonomy."

hat trusting style, he suggested, allowed Ridder to copy and take sensitive documents with him when he left, as the lawsuit alleges. Ridder has said it would be inappropriate to comment during litigation.

Probate news

The Madison County Clerk issued a notice this week that as of April 16, 2007, Wills need to be on letter sized paper. If on legal size, a copy needs to be made on standard sized paper.

If my memory serves me at all today, the state rules required letter sized paper since some time in the early or mid- Nineties. Nothing mentioned about Wills. I have not used legal sized paper for anything for years and I wonder how many have used legal sized paper for their Wills in the past ten years.

Which then raises a question, if lawyers do not use legal sized paper is calling it legal sized quite correct?

Office news: New computer up and running

I want to let my clients know that the new computer was installed on Tuesday morning and I have almost all of the customization done. However, I am still playing catch up.

Bankruptcy filings down in 2006

A press release from The U.S. Court site (which is the official site for the United States federal judiciary) says that bankruptcy filings were down for 2006. I was unimpressed with just the comparison with 2005 - that being the year that the 1984 Code came to an end - but the page shows statistics back to 2000.

The release only reports the gross numbers without any explanation of why the decline. I do not think anyone ought to use this information as a premise that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) has prevented bankruptcy abuse via curtailing frivolous petitions.

My observations from Anderson is a bit different. I stopped my bankruptcy practice and so did some others. I stopped for two reasons: 1) I did not think that the market here would allow for the volume needed to maintain a viable practice at the price level needed for increased work and risks needed to comply with the new law, and 2) I decided that the new bankruptcy law is so anti-lawyer that I did not need the hassle. I believe that there are four attorneys in Anderson who continued practicing under the new law. From conversations with two of them, they do so with a great deal of trepidation at the penalties that might befall them for failing to dot all the i's. I do not miss that kind of stress. My practice has enough of the ordinary stress.

I also think BAPCA's consumer credit counseling and income averaging requirements delay filing a petition. A petition cannot be filed without some sort of consumer counseling. I imagine he detailed financial declarations are not time consuming. I suspect with procedural delays, fewer attorneys doing the work, and more work for the attorneys and clients to do, and higher attorney fees, there should be fewer bankruptcies filed last year.

I doubt it will take a long time to find out if collections attorneys are recovering more funds now than what they did before BAPCA - if meaningful statistics can even be found for that kind of activity. I suppose something similar might be learned from the charge offs made by creditors under BAPCA.

I do not really miss the consumer bankruptcy work. I always had a bias for the creditor side, but I cannot say anything good about BAPCA. From a professional standpoint, it is a poorly drafted law created to protect special interests. I do believe that anyone contemplating filing bankruptcy or practicing bankruptcy law needs to review alternatives to bankruptcy. I have already written about assignments for benefit of creditors. There will be more on these bankruptcy alternatives in the near future.

Electronic discovery - E-mails, Enron, and Karl Rove

The office computer crisis delayed my commenting on this Washington Post article,
'Delete' Doesn't Mean 'Disappear'. The writer, Rob Pegoraro, does an excellent job explaining the life of e-mail and the techniques for removing e-mail. I suggest anyone and everyone read the technical bits, but I think this passage ought to put the importance of this into perspective for everyone:

So even if both the sender and recipient strive to make a message disappear, "data forensics" companies can dig it up. Brian Karney, the director of product management for one such firm, Guidance Software of Pasadena, Calif., bragged about how easy it is to unearth a long-buried message from the database file created by Microsoft Outlook -- the software used by many businesses and organizations, including the White House.

"Anybody can recover an e-mail," Karney said. "You just need to know how to look and find that stuff."

Encrypting e-mail -- something most users never bother to do -- can keep the contents of your correspondence secret. But it can't hide other data about the e-mail, such as subject, addresses, dates and times, which can be incriminating on their own.

Just because it's possible to find long-lost e-mails doesn't mean anyone is doing that with yours right now.

Your Internet service provider or Web-mail service, if it wants to stay in business, is not likely to eavesdrop.

And your office's IT department may be too busy to bother. Although a lot of companies say they monitor employee e-mail (55 percent, in a 2005 survey by two trade groups, the American Management Association and the ePolicy Institute), you can bet that most rely on automated software to do the job. It takes an exceptionally paranoid, well-financed business to hire people just to read the mail.

If, however, somebody thinks your correspondence in particular hides a sufficiently sordid secret -- especially if that somebody is a politician or a prosecutor -- all that can change.

I added the italics to that last paragraph. I would have also added business competitor to politician or prosecutor.

If you have a business and do not understand why preparing for electronic discovery is necessary for your business, I think reading this article will give you understanding.

The Indiana Coalition for Open Government

Those interested in open government, the Open Door Law, and/or journalism need to visit the site (here is the to the home page). The following contains the Coalition's description of its:

Our Vision:

1. We envision a society in which all citizens enjoy full unimpeded access to public records and the public decision-making process. We believe such access is vital to the proper functioning of our democracy.

2. We envision a government where public employees and elected officials act as the servants of citizens seeking access.

3. We envision a public access system that is easy and inexpensive for citizens to navigate.

4. We endorse the principles included in the preamble to the Indiana Open Records Act which states:

"A fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.''

What I have written on the Open Door Law can be found at this link.

Where are the official forms?

I once worked for a legal services program that started in Michigan. I should have been worried when they asked about official court forms. I remember telling the fellow from Michigan that Indiana has no official forms.

The Indiana Supreme Court created protective order forms with a required format soon after that conversation. One can find those forms at the office of the local county clerk.

On Law Guru, people continue to ask where to find Indiana's forms online. The Indiana Judicial Center now has about 16 forms listed under civil forms. One applies only to Marion County and six are Orders dismissing different proceedings. Unlike, say Michigan, the Indiana Trial Rules require the use of these specific forms other than the Appearance. No forms exist for probate matters at this site. Anyone trying to file their own civil lawsuit on the regular docket (rather than the small claims docket) will not find anything to help them on this site.

Hamilton County has forms required by local rule. These forms include family law, criminal, and probate forms. Still nothing for anyone wanting to file the initial documents (pleadings for those lawyer readers who need precision). The Delaware County Clerk has some forms online also for family and civil suits, but no probate. So far as I am aware, this is the only site with a civil complaint form. No probate forms, though. Marion County has forms online which really do not have much practical use for litigation.

I have not looked at the sites for all 92 counties and there may be more counties with forms on their websites. Let us say that this is a survey of my usual practice area.

I suppose I have puzzled you if you are a lawyer from a state with official forms or a non-lawyer from Indiana. If no official forms, how do we Indiana lawyers do what we do? My short answer is this: we steal. My slightly longer answer is: we still and use our wits.

We steal forms from our predecessors and our contemporaries. I know I use pleadings forms that I got from the attorneys in the office where I first started and who knows where they got their forms. Stealing a form requires knowing (if the pleading is a complaint or a petition) that the form properly states the law. Which in turns also means that the pleading works. No sense stealing something that does not work.

I also started by buying form books. I guess that form books constitute another form of stealing. I will tell you that I finally understood the abstractions of civil procedure by diligently reading and using and copying from form books. Nowadays, I refuse to purchase any formbook that does have a CD-Rom with electronic versions of the forms.

Every office needs a scanner and optical character recognition software (OCR). Take the form that you like, scan the document, and then convert the image into text. Converting to text allows you to manipulate the text and to re-use the form over and over again.

I take that text file one step further and convert the text into a HotDocs form. You need to know the variables to design the forms but I think anyone practicing any length of time can see where the variables are in the form. What this does require is time and hard work. I find it useful - automating documents like this allows me to dispense with a secretary to do the typing.

Problems exist with this method when the desktop dies as it did two nights ago. One can get too dependent on them. I am still in the midst of reclaiming all of my old forms into HotDocs forms and I am still getting a bit flummoxed when I find that a file I think I have has not been reclaimed for HotDocs. I wrote generally on the problem of computer dependence earlier.

Document automation increases the costs for a law practice. Short term those costs include the costs for the scanner, OCR software, the HotDocs software and the time for converting the forms. While the process poses some intellectual interests, the process must benefit the client. Remember that benefiting the client benefits the practice.

As I see it, the less time I spend drafting common documents means more time spent for dealing with the client and the more complex parts of the case. Which does bring another point to mind: the more that does a certain area of law, the more that you will develop a library to deal with that area of law. I found this particularly true in my collections practice. Collections require a volume of cases. Business law provides a similar sort of repetition suitable for automation. Family law provides a similar basis for automation as there is a great repetition of issues.

All this brings up a question about fees but I will save that for another post.

The Price Of Computers

The office computer went kaput two days ago. The past two days consisted of extremes: extreme frustration, extreme aggravation. Hopefully, tomorrow finds the computer running again in its mysterious ways. I hate my dependence upon computers while simultaneously I adore the advantage provided by the computer, Computer Manage information and my “job” requires me to bend, shape, and interpret information.

Now I am cut off from easily accessing the address, telephone numbers, and even names of clients, courts, contacts and opposing attorney’s. Note that adverb easily. The raw gross information remains in the files, the telephone books, the online sources, but the time to find and use that information is now so much longer, more tedious, as I write this, some of that lost and keenly desired information is being placed into my laptop.

Poor timing on my part and on the computer’s, for otherwise I would have most - maybe all this information in place and ready to use. Tomorrow fails in bringing me total repair, of my situation, I will have enough to fight my fights next week.

Computers bring joy and terror to a lazy man. Joy comes from being able to automate those simple tasks. The terror caused by knowing the amount of work required for reaching that state of seamless use of information. Avoiding the bog of paperwork can mean landing in the bog of mucking about computers.

Such is the price of computers in the practice of law. We cannot do with them nowadays but can any business? I remember the days I practiced law before my first computer and I cannot see how we handled the volume of business that we did. Perhaps the world was a bit slower as well before 1992.

Relations with business clients - miscellaneous thoughts

I caught a profile of a Scots construction lawyer in last Sunday's Sunday Herald and I thought how lucky this lawyer was:

Her focus is not just on problem solving but on building long-term relationships with clients. She says this has led her into work on facilities management and PFI projects as her clients diversify into these fields.

Business clients here seem uninterested in anything but a one-off relationship. Yes, we may have a surplus of lawyers here but how many business people give their lawyers time to understand their businesses rather than just their kind of business?

Scotland has the same problems as Indiana - litigation costs money.

When she began to specialise in construction disputes in the late 1980s and early 1990s, the trend was for litigation, some of which dragged on for years, racking up enormous legal bills and involving bitter altercations. Now the trend is to avoid court and to seek resolution of disputes through an adjudication hearing presided over by an industry expert who normally delivers a verdict within eight weeks.

The impact of high-profile cases such as those involving Trafalgar House and Eurotunnel pushed the industry towards disaffection with the process of bringing a case to court, Patterson says. "No-one wins in that process. We're in a much better place today," she adds.

Similar solutions could apply here. For years I tried to get the attention of business clients by emphasizing preventive measures. No interest. Ever. I would be quite willing to credit this to a poor presentation but I know from my stint as in-house counsel that presentation has nothing to do with the lack of response. Businesses here prefer waiting for the axe to fall. I am assuming that times have changed enough to get businesspeople to listen. It may be - or so I hope - that I learned enough to better present the utility of preventive legal measures for businesses. If nothing else, it gives a sharper point to this blog.

Information for health savings accounts

HSAcenter.com bills itself as a consumer oriented site providing information on health savings accounts.

This site is presented as general information, and not as an advertisement of, or solicitation for any health insurance product. Precise HSA tax effects depend on federal law. We recommend that you see your tax advisor for specific tax advice.

I know little myself about health savings accounts outside of some political debates on national health care. Of course, the site is pro-HSA but considering the site's disclaimer above, I think that is not objectionable or a surprise. Do take the site's disclaimer to heart, check with an accountant first. You might consider the information provided here as providing the content for that conversation with your accountant.

It's so much more friendly with two, so says Winnie the Pooh

Old news about Winnie the Pooh and Disney but I hope still interesting. Never underestimate your intellectual property - trademarks, copyrights, and patents - but also do not overestimate its value, either. This is how MSNBC started its story:

The two sides in the long-running royalty dispute over the Winnie the Pooh characters have ended settlement talks, ensuring that complicated federal copyright litigation will continue.

The Walt Disney Co., which generates about $1 billion in annual revenue from the sale of Pooh products, informed a federal magistrate last month that it would not participate in settlement talks with the family that owns the licensing rights to the characters.

Now who'd think that a little thing Winnie the Pooh would be worth that much? Walt Disney, for one.

The remainder of the story is found here.

Car bought but title not delivered?

I must put this in the category of learning new things. I get a call about a car dealership not delivering a title within the required thirty days. First time I had to deal with this since I started in 1987. With a little help in the research I found the answer in IC 9-17-3-3. The buyer's remedies are below and they have an interesting twist. Basically, no title means the deal is off. I do notice that the statute has language similar to the Lemon Law statute ("Upon return of the vehicle to the dealer in the same or similar condition as delivered to the purchaser or transferee...") having the potential for litigation. See this post from the Indiana Consumer Lawyer Blog for the problems with this language.

Unfortunately, the potential client wanted the car and the matter went no further. Interesting little statute, though. I get calls about whether a car can be returned in three days (you cannot, see my post here) and I think I need to be asking if the buyer has gotten title to the car.

(c) A vehicle dealer who fails to deliver a certificate of title within the time specified under this section is subject to the following civil penalties:

(2) Two hundred fifty dollars ($250) for the second violation.
(3) Five hundred dollars ($500) for all subsequent violations.

Payment shall be made to the bureau and deposited in the state general fund. In addition, if a purchaser or transferee does not receive a valid certificate of title within the time specified by thissection, the purchaser or transferee shall have the right to return the vehicle to the vehicle dealer ten (10) days after giving the vehicle dealer written notice demanding delivery of a valid certificate of title and the dealer's failure to deliver a valid certificate of title within that ten (10) day period. Upon return of the vehicle to the dealer in the same or similar condition as delivered to the purchaser or transferee under this section, the vehicle dealer shall pay to the purchaser or transferee the purchase price plus sales taxes, finance expenses, insurance expenses, and any other amount paid to the dealer by the purchaser.

Read what you sign

What if an employee alters a contract but no one catches the changes before the employer signs? From Workplace Management:

Laura R. Kreisler pleaded guilty last year to stealing more than $857,000 from Creative Consumer Concepts Inc., or C3, as it’s known in its hometown of Overland Park, Kansas. She was sentenced to seven years in prison.

Case closed? Not really. The embezzlement came to light about a month after she was fired in November 2004 for insubordination. When C3 fired her, the company offered to continue paying her salary for six months. She took the severance contract home and scanned it into her computer and added a provision that would allow her to keep the extra pay even if the firm sued her. Unaware that the contract had been altered, C3’s human resources manager signed it.

Employer got lucky in this case because the wrong person signed for the employer. Be careful what you sign is an old proverb made even more important with today's technology. While I am not so sure that employee would win every time, what business can afford the time and expense of a law suit? Always read before signing.

Anybody getting a contempt citation for not paying a bill?

Using contempt to collect a debt is not allowed under Indiana law. Contempt permits imprisonment. Indiana forbid imprisonment for debt in 1851.

Contempt requires the intentional and willful disobedience of a court order. Therefore, contempt and debt collection can only intersect after there is a judgment on the debt.

The process of collecting the judgment is either by way of the judgment debtor agreeing to their debt or initiating involuntary methods such as proceeding supplemental to execution, garnishment, attachment and/or execution.

A debtor can agree to make payments on a judgment and the court can incorporate that agreement into an Order. I know of cases where the trial judge has made an Order on the debtor's promise to pay and the attorney then used contempt when the debtor failed in amking payments.

This differs from the situation where the debtor ordered into court for a hearing does not appear. Contempt properly exists for these situations. The debtor faces imprisonment not for the debt but for disobeying the court's Order to appear.

In my opinion, the collection attorney using contempt for collecting a debt violates the federal Fair Debt Collections Practices Act (the FDCPA). The FDCPA forbids the use of illegal means collecting debts.

Using contempt for debt collection has the collections violating Art. I, §22. That the debtor only suffered the threat of imprisonment is not a defense for the collection attorney. Case law shows that the threat of illegal activities suffices for a successful FDCPA action. All the collection attorney does by using contempt for collecting a debt is create a credible suit against one's self under the FDCPA.

One final point, using contempt for debt collection serves no truly useful purpose. Many methods exist for the competent collections attorney to collect a debt and contempt lacks any utility comparable to garnishment or attachment. a competent collections attorney also knows what debts can be collected or not. Striking terror in the heart of debtors seems the only use for contempt which is not useful when the purpose of a collections attorney is to get the money.

Patents long reach - a story about Bell Labs and its progeny

Something light here combining patents and litigation. Originally appearing in the Wall Street Journal , a history lesson masquerading as a news story illustrating the importance and long reach of patents.

UPDATE: Bell Labs Legend Haunts Courtroom Tech Rivals

By John Letzing

SAN FRANCISCO (Dow Jones) -- When Telcordia Technologies Inc.'s patent- infringement suit against Alcatel-Lucent heads to trial in Delaware this month, the battle will reach across old blood lines.

Both Telcordia and Lucent descend from the legendary Bell Labs, a research organization launched 82 years ago to conceive the innovations that would power a telephone monopoly -- along the way dabbling in disciplines as diverse as psychology and software while pioneering such technologies as the laser, the microwave and fiber optics. That two of Bell Labs' progeny should end up on opposite sides of the same courtroom is not surprising, given its historical patent portfolio's breadth and dispersal, as well as the flourishing contemporary trade in patent litigation.

Bell Labs exists today under the umbrella of Alcatel-Lucent -- though it has been pared from 3,200 researchers in its heyday to a current staff, combined with that of Alcatel's Research & Innovation Labs, of 1,500. It has also considerably narrowed its focus to the immediate needs of its parent company. Meanwhile, Bell Labs' patents and alumni have been scattered across a handful of companies, as Bell Labs' original parent, the old AT&T, was dismantled in 1984 and Lucent spun off a pair of firms two decades later.

While Bell Labs has surrendered powerhouse status, various technology companies have built upon its core inventions, such as the transistor, to build their own successes. But that expansive body of Bell Labs-related research has now emerged as a potent courtroom issue for those companies.

The rest of the article is quite worth reading and can be found here.

Follow up: Ivy Tech and Open Door Law

From today's Muncie Star-Press:

Ivy Tech Board to revisit hiring vote By ANDY GAMMILL
The Indianapolis Star

INDIANAPOLIS — Ivy Tech Community College’s board will again take up its decision to hire an Anderson businessman as president after the state’s public access counselor determined the board acted illegally, the board said Monday. Vice Chairman Jesse Brand said Ivy Tech Community College disagrees with Karen Davis’ ruling but will discuss the issue publicly as a board.

“We respect her position, so we’re going to, both at her and our counsel’s advice, have a discussion on the agenda,” Brand said. “As far as I know, there are no limits of what course that discussion might take.”

Davis determined last week that two votes in a closed-door executive session violated state law. She also said that the board probably broke the law by deliberating in private, although she said case law isn’t as clear-cut on that issue.

Although the board will discuss the matter again at its April 19 meeting in French Lick, Brand said he believes the board will not change its mind in hiring Thomas J. Snyder as Ivy Tech president.

As mentioned later in this article, revisiting the vote lessens the chance of litigation. Well, if the law cannot prevent those operating under the Open Door Law from breaking the law, then the law can be used to embarrass them into correcting the breach.

I am a bit surprised that Advance Indiana has not posted on this by now but that blog is taking a close look at the defeat of the hate crimes bill.

Starting a Business - mistakes for business start ups

From Arbor Law I found a link to this 1996 article: ENTREPRENEURIAL DEATH TRAPS. I agree completely with the description I found at Arbor Law:

1996, you say? Yes, it’s from the go-go days of the dot com boom. In internet-dog-years, this is the equivalent of advice from 2000 B.C.

Some advice from 2000 B.C. is very valuable.

I have seen quite a few of the death traps in operation, read about a few of the others, and I can admit that #20 fits a situation I found myself before 1998. If you are thinking of starting a business, if you just starting a business, or if you have a business, read this article.

Open Door Law News: Ivy Tech Violates Statute

Thanks to Advance Indiana for posting on this subject. I mentioned before that some view the Open Law Door Law as a mere technicality. Mr. Welsh's comments below show why governmental agencies may take this view.

It's unclear whether Davis' ruling will have any impact on the ultimate outcome here. There's no indication the Board is going to reopen its selection process as the Governor's office would like it do, although it's decision could be voided if someone takes the Board to court. The Board could still wind up selecting Snyder even if it has to redo the process.

Professor Tanford Attacked by Liquor Interests

IU Bloomington Law Professor Alex Tanford litigates direct-wine shipping cases. Direct-shipping has been a hot topic in the alcoholic beverages area for several years now and Tanford has been very successful in knocking down state laws barring direct shipment of beer and wine. This annoys the liquor wholesalers. The Indiana Law Blog has excerpts of the news stories on this here.

The problem lies with the Internet. The direct-sellers sell over the Internet to out-of-state buyers. Amazon has been doing the same thing for years but booksellers do not have the convoluted and complicated relationships between big money, politics, and taxes as the liquor wholesalers. If they must attack Professor Tanford, I assume that they are feeling the heat of the new economy on their neck.

Consumer Rights Law Blog

An Ohio attorney who practices also in Indiana. I have just started reading this one - long posts, lots of photos, but with a lot of information about defective autos, washing machines (yes, washing machines), and identity theft.

Subprime lending news - following up

The Washington Post has economist Dean Baker writing an op-ed piece on the subprime meltdown. More of a policy article than probably fits comfortably here, I still suggest reading this. I am only excerpting two of the more interesting points:

The full effects of the collapse of the subprime market remain to be seen, but it is not too early to talk about the policies that got us here. In particular, the government policy of promoting homeownership should be examined.

***

If, say, those fees came to 10 percent on a $200,000 house, or $20,000, then the transaction costs would have added $5,000 per year to the housing cost for a typical moderate-income home buyer. Since the median annual rent in Washington is only around $9,000, the transaction costs associated with buying and selling a home are significant. A family that lived in a home for only four years almost certainly would have been better off renting.

I added the italics. A bit to think about, especially if you are thinking of buying a home right now. My earlier post on the subject is here.