Friday, September 12, 2014

Could Adrian Peterson have used a switch if he was in Illinois?

News broke this afternoon that Adrian Peterson, one of the greatest running backs of all time, was indicted for “reckless or negligent injury to a child.” Multiple media outlets report that the indictment stems from an incident in which Adrian Peterson disciplined his 11 year-old-son by smacking him with a switch. 

Adrian Peterson has already retained prominent Houston attorney Rusty Hardin, who I have written about before, to defend this case. This case will surely make headlines for months to come, especially with this indictment coming so quickly after the release of the Ray Rice video.

Rusty and Adrian certainly have their work cut for them because of the allegation that Adrian used a switch to hit his son. Ordinarily, parents are granted broad leeway when disciplining their own children. A parent's "right" to corporally punish his or her child is derived from the right to privacy, which is viewed as implicit in the United States Constitution. This right to privacy encompasses the right to care for, control, and discipline one's own children. In Illinois, "discipline" had been interpreted by the courts to extend to reasonable corporal punishment. People v. West (In re F.W.), 261 Ill. App. 3d 894, 898 (4th Dist. 1994). 

However, what is "reasonable" is always subject to debate and may eventually be left to a jury to determine. In Illinois, the use of switches, belts, or other objects to corporally punish a child have been found to constitute neglect or abuse, depending on the severity of the punishment. Factors that the court will consider are whether any physical injury resulted from the use of the object, the psychological effects of the discipline on the child, and the circumstances surrounding the discipline, including whether the parent was calmly attempting to discipline the child or whether he was lashing out in anger.  In re F.W. at 903.

In fact, the odds may be against Rusty and Adrian due to the use of the switch. Here is a quote from a leading case in Illinois:
“Corporal punishment as a method of discipline remains a controversial issue. It is not our function in an abuse or neglect proceeding to determine whether parents measure up to an ideal, but to determine whether the child's welfare has been compromised. Whether to employ corporal punishment as a means of discipline is a decision each parent must make for himself or herself. However, parents should understand a swat on a child's buttocks with an open hand and the "paddling" of a child with belts, boards, cords, or ropes are intrinsically distinct exercises of corporal punishment. The cases reviewed above, and the dearth of cases finding striking with objects to be "reasonable," should put parents on notice. When allegations of neglect or abuse are levelled, parents using boards, belts, cords, or ropes as weapons to inflict corporal punishment may encounter an unwillingness on the part of DCFS and the courts to regard their conduct as reasonable.” Id. at 903.
So, Adrian will get extra scrutiny due to the use of the switch. If he had simply used the back of his hand, things may be have been different. However, please keep in mind that I am completely speculating about the facts of this case because the news just broke about 30 minutes ago. If it turns out that Adrian Peterson's son did in fact suffer serious injuries, I apologize in advance for anyone that I may have offended and I will be back here in short order to delete this post and scrub any evidence of it from the interwebs. Have a nice weekend.

Tuesday, September 9, 2014

This law firm should subscribe to the Northern Law Blog.

A law firm from Chicago was hired to appeal the property tax assessments for 71 different parcels of real estate located in Aurora Township, Kane County, Illinois. The tax appeals were due by October 4, 2013, the thirtieth day after the publication of the tax assessments. On October 4, 2013, the law firm sent its petitions to the Kane County Board via FedEx. The Board received the petitions on October 7, 2013 and rejected them as untimely.  

The petitioner appealed, arguing that the "mailbox rule" should apply. The mailbox rule, which is contained in the Statute on Statutes, 5 ILCS 70/1.25, provides that a document is deemed "filed" as of the date of mailing via United States mail, regardless of when the document is actually received. However, petitioner's argument was unsuccessful because multiple Illinois appellate courts have previously held that the mailbox rule does not apply to private carriers such as UPS or FedEx, but rather only applies to documents placed in the U.S. mail. Here is a link to the 2d District's opinion.

It's too bad that the petitioner's law firm does not subscribe to this Blog because I wrote about one of those cases more than five years ago. See Mailbox Rule Does Not Apply to UPS, Northern Law Blog (February 10, 2009). I don't know how much money was at stake in those 71 tax appeals, but I do know that a subscription to the Northern Law Blog would have been much, much cheaper than the malpractice case that will most certainly follow this decision.

Wednesday, August 6, 2014

Revised Kendall County Eviction Guidelines

The Kendall County Sheriff's Department has revised their eviction guidelines, effective July 11, 2014. I just received the revised guidelines in the mail, so I thought that I would pass them along. The new eviction guidelines can be found HERE.

Monday, August 4, 2014

By bequest, devise, or inheritance

In a Chapter 7 bankruptcy, the trustee can administer (sell) non-exempt property of the bankruptcy estate. The bankruptcy estate is defined in Section 541 of the Bankruptcy Code to include all of the debtor's legal or equitable interests in property as of the date the case is filed, wherever located and by whomever held. Therefore, every interest that the debtor has in any property whatsoever on the date of filing is included in his or her bankruptcy estate, subject to very limited exceptions. 

Normally, property that is acquired after the bankruptcy filing is not property of the estate and, therefore, not subject to administration by the bankruptcy trustee. However, Section 541(a)(5) lists three categories of property that can become part of the bankruptcy estate after the filing date. Those three categories include any interest in property that the debtor acquires, or becomes entitled to acquire, within 180 days of filing (A) by bequest, devise, or inheritance; (B) as a result of a property settlement agreement with the debtor's spouse, or of an interlocutory or final divorce decree; or (C) as a beneficiary of a life insurance policy or of a death benefit plan.

I represent a debtor who owned real estate in joint tenancy with her mother. The debtor's mother passed away within 180 days of the bankruptcy filing. While the mother was still alive, the debtor's "half" of the house was undoubtedly property of the estate. But, now that the mother has died, is the other "half" of the house property of the estate as well, pursuant to the language in Section 541(a)(5)(A) that talks about "bequest, devise, or inheritance"?

In order to determine the answer, I turned to Black's Law Dictionary. Here are the definitions of the three key terms:

  • Bequest - The act of giving property (usu. personal property) by will.
  • Devise - The act of giving property (usu. real property) by will.
  • Inheritance - Property received from an ancestor under the laws of intestacy.
So, the first two options require that the property, either personal property or real property, pass via a will. That did not happen here. Next, the third option requires that the property pass via the laws of intestacy. In this case, although there was no will, the house did not pass via the laws of intestacy. The house passed via the Illinois Joint Tenancy Act, making it not property of the estate and not subject to the claims of creditors or the bankruptcy trustee. Everybody goes home happy (except the trustee).

Thursday, July 10, 2014

Are you entitled to a piece of the $2 billion foreclosure settlement with Ocwen?

If you currently have a mortgage that is serviced by Ocwen Financial Corporation or Ocwen Loan Servicing, or if you had been involved with these companies and lost your home to foreclosure between January 1, 2009 and December 31, 2012, you may be entitled to share in a massive settlement.

In December 2013, both of the Ocwen entities into a consent order with 49 States, including Illinois, as a result of Ocwen’s systemic misconduct at every stage of the mortgage servicing process that required them to provide $2 billion in principal reduction to underwater borrowers who still have their homes, and to provide $125 million to people who already lost their homes.

Notice packages have now been mailed to affected borrowers and The National Ocwen Settlement Administrator has created a website with information for consumers. If you have received correspondence from Ocwen, or if you think that you may be entitled to file a claim, please submit a confidential email to me HERE.  

Wednesday, July 2, 2014

The Illinois Residential Mortgage License Act

Earlier this year, the Illinois Appellate Court held, as a matter of first impression, that residential mortgages made by an unlicensed entity are invalid under the Illinois Residential Mortgage License Act of 1987, 205 ILCS 635, et seq. The court relied on the rule that courts will not enforce a contract made by an unlicensed entity when licensing is expressly required by a law that seeks to safeguard the public's interest. HERE is a link to that case. 

I am currently defending a homeowner in a mortgage foreclosure case and I thought I better check to see if the lender is licensed in Illinois. It turns out that they are. But I wanted to relay the link to the current list of licensed mortgage lenders just in case anybody is interested. The list can be found HERE. Good luck.

Friday, June 27, 2014

Two years in prison for Idiocy.

The Eighth Circuit has affirmed the two year prison sentence against Michael A. Smith, of Nebraska, for basically being an idiot. Specifically, he was charged under 18 U.S.C. 39A(a), which imposes criminal liability on anyone who "knowingly aims the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or at the flightpath of such an aircraft."

Mr. Smith's problems started on July 11, 2012 when authorities in Omaha, Nebraska, learned that the cockpit of a Boeing 737 had been illuminated by a laser while flying over the city. The local police dispatched a helicopter to locate the laser. As the helicopter approached the approximate location of the laser's source, Smith, standing in his backyard, directed his laser's green beam at the helicopter. Smith's beam struck the helicopter several times, but when the helicopter got close, his beam disappeared.

Unable to pinpoint Smith's location, the helicopter was forced to depart. But as the helicopter began to do so, Smith again shone his laser's beam on the helicopter. At that point, the helicopter pilots described a back-and-forth game of "cat-and-mouse," during which the helicopter pilots feigned departure from the scene several times to get Mr. Smith to reveal his location. The helicopter pilots engaged Mr. Smith until an officer on the ground was able to walk right into his backyard and catch him in the act.

What an idiot. He had plenty of opportunities to stop. He could have stopped at any time and got away. Plus he was standing in his own backyard while fighting a laser battle with a police helicopter. Someone didn't think this plan all the way through.

At trial, Mr. Smith admitted shining the laser at the airplane, but denied intentionally shining the laser at the helicopter. His defense was that he did not "knowingly" aim the laser at the airplane because he did not believe that the laser could travel far enough to actually hit the airplane. He didn't know he could hit the airplane. The trial court ruled that the knowing requirement only applied to the aircraft element of the statute. As long as he knew that he was pointing a laser at the airplane, he violated the statute. The Eight Circuit affirmed.

Saturday, June 21, 2014

Does a creditor have to release a bank citation if the debtor files bankruptcy?

A third party citation served upon a bank operates as freeze on any money that the debtor has in his account. Plus, any funds that the debtor deposits after service, but prior to the termination of the citation, will also be subject to the citation freeze. If the debtor files bankruptcy, does the creditor have to dismiss the citation and release the account?

The U.S. Bankruptcy Court for the Northern District of Illinois just analyzed this issue in the case In re Kuzniewski, 2014 Bankr. LEXIS 1443. In that case, after filing bankruptcy, the debtor's attorney made a demand upon the bank and the creditor's attorney to immediately release the account. The bank and the creditor's attorney refused and the debtor filed a motion for sanctions against each for violation of the automatic stay.

The court analyzed the unique nature of a citation lien under Illinois law. A citation lien gives a creditor secured status in a bankruptcy. While the automatic stay does prevent a creditor from taking certain actions in furtherance of a lawsuit, the Bankruptcy Code generally requires notice and an opportunity to be heard before a creditor in bankruptcy may be deprived of a property interest, including a lien. The court noted that there are several provisions of the Code that would authorize avoidance of the citation lien, but all of those provisions require notice and a hearing. Without notice and a hearing on an avoidance action, liens generally pass through bankruptcy. 

For these reasons, the court found that the creditor's actions did not violate the automatic stay. If the debtor wanted the account released, she had an obligation to file an adversary proceeding or a contested matter for avoidance of the lien, not simply make unsubstantiated demands that were not warranted by existing law. In other words, this was a decision to be made by a judge, not by debtor's counsel. 

Thursday, June 19, 2014

Citation to Discover Asset Materials

I had the pleasure to speak about citations to discover assets this morning at a Kane County Bar Association seminar. I mentioned to the audience that I would be placing several documents on this Blog.

First, HERE is an updated copy of my outline from the seminar.

Second, HERE is a copy of the modified citation form in Word format.

And, in case anybody is interested, HERE is a link to the Dexia case that I mentioned briefly at the end of my presentation as I was running out of time.

Please let me know if anybody has any questions about this morning's presentation, or anything else related to the collection of judgments.