Operating Snowmobiles while Intoxicated in Illinois

With all the snow falling in Chicagoland over the past few days, it's a good time to mention Illinois laws regarding motorized snow activities.

After all, it's only been two years since CBS Chicago journalist, Randy Salerno, was killed in a Wisconsin snowmobile accident.

In January 2008, Salerno died when his friend Scott Hirschey, who's blood alcohol test showed he was legally drunk, crashed a snowmobile with Salerno riding on the back. Salerno, who was not intoxicated, was killed when his body hit a tree.

Even though this accident took place in Wisconsin, Salerno's death brought attention to all Midwest laws for operating snowmobiles while intoxicated.  At the time of his death, in Illinois and Wisconsin OWI – operating snowmobiles while intoxicated – and refusing to submit to a breathalyzer was punishable only be a fine.

This year Illinois legislators began working on a bill to deal with snowmobile OWIs.  These laws, amendments to the Illinois Vehicle Code and Snowmobile Registration and Safety Act, would change the penalties for operation of a snowmobile while under the influence so they are similar to the penalties in the Illinois Vehicle Code for DUI. The amendments provide for additional administrative sanctions for operation of a snowmobile while under the influence that are similar to certain administrative sanctions for a DUI violation in the Illinois Vehicle Code.  They would also ban people with active vehicle DUIs from snowmobiling.

After several final action deadline extensions for these amendments, the most recent Illinois Senate action for these amendments was on November 30, 2009, when a House Committee Amendment Motion to Concur was referred to Assignments.

Now the question is, what will happen with Illinois OWI Laws in 2010...?

The entire Illinois Snowmobiling Act may be found in the Illinois Compiled Statutes, Chapter 625. 
For more information visit:  Illinois Legislation Track - OUI-BOAT-SNOW-DRIVERS LICENSE

Amended Form - Required Statement to Accompany Motions for Relief

Effective December 21, 2009, the Northern District of Illinois has once again amended the Required Statement to Accompany Motions for Relief from Stay.

Here is a link to the form in a fillable PDF.

I have also posted a copy of the revised form to the Forms Archive.

Damages for Injuries for Pets - Part II

About a year ago, I wrote this post about calculating damages for injuries or death of pets. A case published at that time expressed for the first time the Illinois courts' willingness to hear subjective evidence of a pet's value to its owners, rather than just placing an objective value on the life of the pet based upon what its owners paid for it.

The trial court in that case granted the plaintiff $200 for the loss of his dachshund because that was how much a seven-year old dachshund was worth at the time. The appellate court, however, reversed that decision and allowed the plaintiff to demonstrate the personal value of the dog to him by such "proof as the circumstances admit," presumably testimony as to how much the dog would be missed by the plaintiff and his family.

Well, today I found out that Illinois is way behind other parts of the country in this area of the law. I have told you in the past that I subscribe to Westlaw's Headnote of the Day. Every day I get an email containing a headnote from a random case. Here is today's:

In action for loss of dog struck by defendants' automobile, special damages, in addition to value of dog, based on fact that dog had been trained for work in a vaudeville act along with plaintiff and his daughter, were recoverable.
Paguio v. Evening Journal Ass'n, 21 A.2d 667 (N.J. Sup. Ct. 1941)

So, New Jersey has been allowing this type of evidence for nearly 70 years. I haven't read that Paguio case, but I wonder if the plaintiffs were only allowed to recover the money that they paid to train the dog, or were they awarded lost profits for any shows that they missed, etc.? Interesting stuff.

"Three Pony Cases"

Q: What is the difference between a golf ball and an SUV?

A: Tiger Woods can drive a golf ball 300 yards.

I have more, but let's get down to the business of Tiger Woods' inevitable divorce. Here is a good interview with Ira Elegant (great name) about the potential divorce between Tiger and Elin Woods. Mr. Elegant (even greater name) is a divorce lawyer from Miami who has represented the likes of Shaquille O'Neal and Alex Rodriguez in divorce proceedings.

The interview first appeared in the Wall Street Journal Law Blog and covers several topics including premarital agreements, alimony, grounds, etc. They also talk about child support.

Mr. Elegant informs us that judges in Florida can deviate up or down from the statutory guidelines based on a number of different factors. Certainly one of those factors would be that most infants don't really need to be billionaires.

In cases involving extraordinary amounts of money, the courts are able to inquire "how much the kids really need." Any excess money then goes into a trust that vests when the children reach a certain age.

Mr. Elegant refers to these cases as “three pony cases,” under the theory that even a wealthy child doesn’t need three ponies.

Awesome.

Mortgage Lenders Kill People. (Allegedly.)

Dianne McLeod's husband suffered a heart attack in 2002. He was unable to work and went on disability. Dianne McLeod says they then fell behind on their mortgage payments.

This was when debt collectors started calling their home up to ten times per day.

Dianne McLeod says that she witnessed her husband get red-faced, agitated, and sweaty while fighting with debt collectors over the phone. He would also complain of chest pains after hanging up the phone.

Stanley McLeod died of heart failure in 2005.

Dianne McLeod believes that harrassing phone calls from her mortgage lender and their debt collectors killed her husband. She is suing her mortgage company, Green Tree Servicing, for wrongful death.

This case recently survived motions to dismiss and will proceed to trial.

Not to make light of the situation, but I wonder if the lender alleged that Mr. McLeod was contributorily negligent for answering the phone.  It does take two to tango, does it not?

Countrywide

Since the repealing of the Glass-Steagall Act in the late 90's most of the remaining investment banks or financial institutions are involved in both lending and trading.

The investment game being described in the article "The End" encouraged the market to work in unscrupulous ways in order to get as many loans as possible. The "lenders" were engaged in activity that pushed homeowners to buy, refinance, HELOC, or take part in any other transaction that could later be sold on the securities market. Since the rating system was being manipulated, the securities could then be sold to unsuspecting investors.

Widespread fraudulent behavior, from appraisers all the way up the ladder to "Wall Street" moved the market values to unprecedented levels and now they've come crashing down.

This Countrywide Consent Judgment shows some more of the shenanigans.

For the debtors' lawyers...

Until yesterday, this site had a decidedly pro-creditor vibe. In order to keep the current momentum, I would like to offer some words of interest to any bankruptcy lawyers out there.

On Tuesday, the U.S. Supreme Court heard arguments in a case involving a provision of the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA").

The case, Milavetz, Gallop & Milavetz v. United States, No. 08-1119, concerns the provision which prohibits lawyers from advising their clients “to incur more debt in contemplation of” a bankruptcy filing.

Penalties for violations of this provision can be severe. I have read articles which suggest that this provision prevents lawyers from accepting credit card payments for payment of their fees. Also, how is a bankruptcy lawyer to respond when a client informs him that he or she needs emergency medical treatment just days before the petition is filed? It may be a criminal offense to advise your client to go ahead with that treatment.

At issue is whether that particular provision is an unconstitutional prohibition on free speech. The plaintiff is a Minnesota law firm.

The Supreme Court is not expected to rule for several months. Check back for updates.

Ahhh the mess.....

In keeping with the spirit of the last post, I suggest everyone read this article by Michael Lewis, the author of the 1989 book "Liar's Poker".

"The End" was written last year.

HAPPY THANKSGIVING

Last week, a judge in New York may have made a significant ruling regarding a home foreclosure. At issue was whether the home would go into foreclosure, the ruling: gave the home free of all liens and loans to the homeowner.

Judge Jeffery Skinner claimed Indy Mac's actions "since February 24, 2009 (and perhaps earlier) has been inequitable, unconscionable, vexatious and opprobrious."

Nice.

In personal dealings with financial institutions it has been my experience that there is no effort on the part of the institutions to help troubled homeowners. There is no sense of responsibility with the lenders for the financial mess they have created. Instead they are more interested in window dressings and not being negatively portrayed in the media and will do only what is necessary to avoid bad press.

Even worse, if the institutions suddenly did gain a sense of altruistic values, their loss mitigation infrastructure is so confused and lacking in resources, they wouldn't be able to do anything if they wanted.

In this situation, the Horoski's purchased a 3,400 sq ft home 15 years ago at $200,000. In 2004, they refinanced. As a result of good faith efforts by the homeowners to restructure their loan in an equitable fashion and the bank's inability to even find a consistent loan value amount...

"The Court is constrained, solely as a result of Plaintiff's affirmative acts, to conclude that Plaintiff's conduct is wholly unsupportable at law or in equity, greatly egregious and so completely devoid of good faith that equity cannot be permitted to intervene on its behalf. Indeed, Plaintiff's actions toward Defendant in this matter have been harsh, repugnant, shocking and repulsive to the extent that it must be appropriately sanctioned so as to deter it from imposing further mortifying abuse against Defendant. The Court cannot be assured that Plaintiff will not repeat this course of conduct if this action is merely dismissed and hence, dismissal standing alone is not a reasonable option."

You can bet there will be an appeal, but in the meantime a sign of hope in a crisis that continues to hit families and homeowners across the nation.

Home Repair and Remodeling Act does not apply.

A recent case from the Fourth District held that the Home Repair and Remodeling Act does not apply to work done to convert part of commercial building to a residential loft.

In Tom Geise Plumbing, Inc v. Taylor, the court found that the building did not qualify as a "residence", so the Act did not apply.

Full opinion here.

Can someone please explain this to me?

725 ILCS 5/110-13 says that "No attorney practicing law in this State...shall furnish any part of any security for bail in any criminal action or any proceeding nor shall any such person act as surety for any accused admitted to bail."

Huh? Lawyers can't bail people out of jail? I must admit that this is news to me. There must be something that I'm missing here. It doesn't say "for clients" or "for cases on which they are involved" or anything like that.

So, I can't post bail for my neighbor or for a family friend? A lawyer can't bail his kid out after a night of sophomoric hijinks?

I just came across this statue and haven't researched it any further, but if anyone has any insight, I'd love to hear it.

Bad ERISA decision

Any attorneys that have dealt with so-called ERISA liens have an even bigger problem to worry about after a recent decision in the 6th Circuit Court of Appeals.

Previously, the primary question with respect to ERISA liens was whether the plan could write a policy provision which abrogated the common fund doctrine. In Longaberger v. Kolt, 2009 U.S.App.LEXIS 25047 handed down yesterday, the 6th Circuit amazingly held that the plan could also write a provision that allows the plan's lien to take super-priority over every other lien. Yes, that includes an attorney lien.

In Longaberger, the attorney settled that case for a total of $135,000.00. The plan paid a total of $113,668.31 for the plaintiff's medical. The 6th Circuit held that the plan was entitled to full reimbursement of their lien. Instead of $86,018.18, the plaintiff walks away with $10,303.31. For the attorney's hard work? Instead of $45,000.00, he gets...$7,110.56. It appears that common sense in Ohio leaves something to be desired. One can only hope the plaintiff's attorney appeals this case to the Supreme Court. Aside from the constitutional issues, there appears to be no logical reason for allowing full reimbursement of the plan's lien simply because they wrote that their lien has super-authority. Does this mean that their lien has super-authority over Medicare liens? That would be an interesting battle. Additionally, why not also write a provision that says the attorney who handles the case will do so pro bono?

Hopefully, the Supreme Court will soon reverse this very poor and unjust decision.

Spammers

I guess we're getting too popular! We have been getting a lot of spam comments on the blog lately. I have changed the settings so that all comments are now moderated by the editor before they are published. Please do not let this stop you from commenting. We always appreciate legitimate feedback. Thanks.

Network Effectively on LinkedIn

This is an excellent video on how to network effectively on LinkedIn. Social media expert Chuck Hester talks about building your network, how to find employment through LinkedIn, and how to use your connections to your advantage.

If you're not on there, I suggest that you create a profile. Feel free to connect with me here.

New York Times Divorce Advice

I don't practice in the areas of divorce or child support, but if I did I would recommend this article to my divorce clients. It is a fairly thorough article regarding financial considerations for divorcing couples. I question some of the advice, but overall it seems like a pretty good resource for the majority of divorce clients.

Welcome Christopher J. McGeehan!

The Northern Law Blog is pleased to announce the addition of Christopher J. McGeehan as new contributor to the site. Chris is a principal at McGeehan Technology Law, Ltd., where he concentrates his practice in intellectual property, information technology and commercial litigation matters at both the trial and appellate level in state and federal court. He is a registered patent attorney and a member of the Northern District of Illinois trial bar.

Chris received his A.B. from Dartmouth College in 1992, where he was a Presidential Scholar. After graduating from The John Marshall Law School in 2002, where he was awarded Herzog and Rosenberg Scholarships and received both his J.D. and L.L.M. in Intellectual Property, he worked in the area of creditors’ rights as a solo practitioner in Chicago. He then joined an intellectual property boutique where he focused on patent and trademark matters.

He is active in several bar associations, including the American Bar Association, the Chicago Bar Association and the Intellectual Property Law Association of Chicago. He is a past chair of the Chicago Bar Association’s Intellectual Property Law Committee and current chair of the Cyberlaw and Data Privacy Committee. He also previously served as a Director of the Chicago Bar Association’s Young Lawyer Section.

He is a co-author of several chapters of the 2009 IICLE on Creditors’ Rights and he helped draft several recent amendments to the Illinois Code of Civil Procedure relating to enforcement of judgments.

This is a tremendous addition to the Northern Law Blog. We look forward to hearing from Chris in the very near future.

Homeowners Assessments

I collect assessments for several homeowners' associations in and around Aurora. Once they're served with summons, most defendants request a monthly payment plan. But isn't that what assessments are in the first place? Monthly payment plans?

People who are sued for outstanding assessments have already shown that they are unable keep up with monthly payments. However, most of the time, that is the only option. Not everyone can just write a check for several thousand dollars on the spot. Also, the associations do not have an interest in pushing forward with full blown collections because that would drive people right into foreclosure.

So, I will usually enter into a payment plan with the defendant. What usually happens, though, is that the defendant satisfies the original judgment amount over a period of several months, but by that time he or she delinquent again in the current assessments. In these situations, there is the potential for a never-ending cycle of continuous lawsuits. As soon as they pay-off the old judgment, we are ready to file suit again.

Luckily, the Forcible Entry and Detainer Act addresses this problem. Section 111 of the Act applies to any property subject to the provisions of the Condominium Property Act (which includes most homeowners associations). Section 111 provides that money judgments shall not be vacated until "the defendant pays such expenses found due by the court, and costs,and reasonable attorney's fees as fixed by the court, and the defendant is not in arrears on his or her share of the common expenses for the period subsequent to that covered by the judgment."

Under Section 111, the association does not have to file a whole new lawsuit. The association can institute collections under the old case number until the current assessments are caught up. This is an economical way to keep the expenses and attorney's fees down so that the homeowners can get caught up.

Foreclosure Crisis--Drawing down principal

One of the major issues in States such as Arizona, Nevada, and California is the amount that homeowners find themselves "underwater." Even in homes where egregious fraud is not found, homes that sold for $330k not too long ago, can now be worth $160k or less based upon the fraudulent practices around them .

This puts the homeowner in a difficult position. They can't sell their home and they won't be in a position to acquire equity for years to come.

The answer to this issue is simple in theory...draw down the principal to reflect the current market value.

How?

That's not so simple.

Last Spring, part of the Obama plan included a legislative provision that would allow certain homeowners to address their grievances in bankruptcy court. The court would have had the authority to review cases where the homeowner could have their loans modified by the judge, and effectively draw down the principal of the loan to reflect current market value.

This provision was defeated in the Senate, which prompted Sen. Dick Durbin to make his now famous statement:

"The banks--hard to believe when we're facing a banking crisis--that many of the banks created--are still the most powerful lobby on Capitol Hill. And frankly they own the place."

Major Banks are unwilling to address principal reduction. Excuses are made, but effectively the issue revolves around the detail that if they reduce one home's principal, they fear a series of phone calls requesting principal reductions across the board.

Amongst the many plans that have been brought forth to effectively reduce the principal burden on the homeowner such as the "soft second," is an idea that may still be in its infancy, but may have some legs once it becomes more well known and specifics of the plan are worked through.

The concept revolves around short sales. Banks in the southwest region of the U.S. have shown a willingness to approve a short sale at 80, sometimes 70% of the current market value of the home. Banks have also shown the ability to report the homeowners action effectively as a deed in lieu transaction, which would only put the homeowner's credit impact in peril for a year, allowing them to apply for an FHA loan after one year.

The idea would then entail finding an investor who is willing to purchase the home at the 80% of current market value, rent to the original homeowner for one year, and then resell the home to the homeowner at the FHA appraised home value at the end of the year.

In a state such as Arizona, where predatory lending practices run rampant, finding a trustworthy investor poses a problem. The investor must be willing to abide by a pre-drawn contract at time of short-sale, and sell the home back when the time comes. Many of these homeowners cannot afford a trip to court, and the snakes in the grass know this.

What if a municipal, county, non-profit, or church were to be a large-scale investor in the short-sale principal reduction plan? The entity could not only ensure stabilization of homes and families in the area, but they would potentially see a profit of near 20% at the time of sale, along with a modest monthly income from the lease of the homeowner. The homeowner would have to keep their credit clean for the time period they are "renting" and would have to then come up with a down payment to secure a loan at the end of the year. (FHA loans require 3.5% down)

Regardless of which plan is used to draw down principal, one thing is clear--principal reduction is necessary to stabilize the housing market. In some states, (Arizona for one) lenders were responsible or knew of appraisal fraud, steering practices, charging excessive or unearned fees, and targeting vulnerable populations--knowing full well that no attorney would be present at closing to represent the interests of the soon to be homeowner. If the major lenders were not complicit in these acts, they definitely knew or should have known these practices were taking place and rewarded the practices in one form or another (RICO anyone?).

The burden of losses should not be shouldered by a population that was targeted, and ended up losing any and all equity or down payments invested in the property.

At some point, the beneficiaries of the years of incompetence need to pony up.

Arpaio Deputies Caught in the Act

Last week I wrote a lengthy post on Sheriff Joe Arpaio and inferenced the notion that his office follows no rule of law. It is widely known out here in the southwestern desert that the Maricopa's Sherriff's Office do as they please.

Unbelievably, one of Sheriff Joe's Deputies were caught on tape. In this video, a defense attorney is speaking to the judge. Watch the Deputy in the back, walk towards the defendant, begin to peruse the attorney's files, call another Deputy over and then steal a few documents from her.

I'm sorry for dwelling on this guy, but you just can't make this stuff up.

UPDATE: CNN's Rick Sanchez reported and showed the video during CNN's Newsroom this afternoon, calling for the attention of the Justice Department.

Penalized for settling a case?

I had an arbitration hearing scheduled this week in Waukegan. It was a breach of contract case against a Lake County home builder concerning about $30,000 in unpaid invoices. I represented a material supplier. It was a simple collections case. There were no defenses.

Someone from the Arbitration Center called me about a week before the hearing to see if we were still going. I told her that I hoped the case would settle, but at that point we were still going to hearing.

I have had other cases in the past with the opposing attorney. He is a very reasonable guy and a good lawyer. Our other cases had settled. I had already called him to see what his client was proposing. They did not even try to assert a defense in their 222 disclosures. He said he would talk to his client and get back to me.

The Arbitration Center called two more times before I heard back from him. I told them I was working on it and that I would let them know if the case settled.

Opposing counsel finally got back to me the day before hearing. His initial offer was inadequate, but my client was willing to make some minor concessions to avoid having to send a witness. We went back and forth a little bit, but by 5:30 on the day before hearing, the case had not settled.

The following morning, his client was in a meeting and unavailable by telephone. By 10:00, they had not responded to our final offer. So, I took off for Waukegan (from Aurora), but left instructions with my receptionist to forward any calls to my cell phone.

At about 11:00, opposing counsel called and we settled the case while I was driving north on 294. He said he would call the Arbitration Center to let them know. I still planned to go up there to enter the order.

When I got there, the Director of the Arb Center was upset! She said that she could move for sanctions against us!!! She said that there was a local rule requiring that settlements occur at least 24 hours prior to an arbitration hearing so that they don't have to pay the arbitrators!!

I couldn't believe it. I told her to go right ahead and move for sanctions. I told her that if I could have forced the defendant to pay us earlier, I would have done that three months ago!

She then said not to worry about the sanctions, but to keep it in mind for next time.

I have since read the 19th Circuit Local Rules. I don't see anything like the rule she described. I see where she was coming from, but sanctioning us for settling the case...that would be a little ridiculous, don't you think?

Expert Testimony and the Dangers of Email

A case in Illinois has recently been brought to my attention. As most of us know, expert testimony is often times essential to proving a case.

In the case that I mentioned, correspondence between the experts through email was made public.

How you ask?

Through the Freedom of Information Act.

Most experts are considered as such due to their involvement in University research. Thus they are often times, in the cases of Public Universities, State employers. Thus their emails and who knows what else (notes, research, etc.) can be viewed as public domain and thus received through the Freedom of Information Act.

This obviously can be damaging to any case and I urge each of you to inform attorneys using experts to be aware.

NIU Grad Expands the Rescue Doctrine

Melinda Rowe-Sullivan (NIU Law 2003) successfully argued a matter of first impression before the Illinois Appellate Court, Third District, concerning the rescue doctrine.

Melinda represented the plaintiffs in Strickland v. Kotecki, 03-07-0831 (July 15, 2009). The plaintiffs in that case were the sister-in-law and brother-in-law of an individual who attempted to commit suicide (Kevin). Kevin's wife discovered that he was missing from the house and, for reasons not disclosed in the opinion, feared that he was about to commit suicide. She called her sister and brother-in-law for help.

The three of them eventually located Kevin's vehicle in a fenced-in business property. Kevin was in the vehicle and there was a hose running from the exhaust pipe to the passenger window. The brother-in-law jumped over the fence to rescue Kevin, but he injured his foot in the process. The brother-in-law then sued Kevin under the rescue doctrine.

The rescue doctrine had previously applied only to situations where a third party negligently places another person in danger. If someone is injured while attempting to rescue the person from danger, the rescuer can sue the third party for his or her negligence. Illinois courts had not decided whether the rescue doctrine allows a rescuer to bring a negligence action directly against a person who places himself in danger. The trial court dismissed the plaintiffs' complaint based upon that distinction and they appealed.

As this was a matter of first impression in Illinois, the appellate court looked to the laws of other states. The court found that every other state that considered this issue had allowed a rescuer to recover from people who place themselves in danger. Like the other states, this court found no logical reason to distinguish situations situations where defendants place someone else in danger from situations where defendants place themselves in danger. For that reason, the trial court's dismissal was reversed.

Great job Melinda! Another victory for NIU!

Arpaio Article

For those interested, here is the Pulitzer Prize winning article by the East Valley Tribune on Sheriff Joe's office.

It's a five part piece, but if you have the time give a read.

287 g: A path to Barbarism

For those of you not familiar with Immigration Law, Section 287 (g) of the Immigration and Nationality Act has caused quite a stir over the last 15 years.

287g Sec 1 states:

The Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension or detention of aliens in the United State, may carry out such function at the expense of the State or political subdivision.

Essentially the law allows localities jurisdiction in matters of federal immigration law. On the surface the law makes sense. The federal government is limited in resources and personnel dedicated to immigration and several states have had growing complaints over the years as a result. This law seemingly allows local law enforcement to fill in the gaps.

Now, 2 years ago while I was living in Illinois I may not have thought much of 287 (g). It seems to make sense and under the direction of a responsible executor, may be a useful apparatus for controlling immigration issues.

The problem 287 (g) faces is that too much authority is given to each “political subdivision” and in essence there are now hundreds of different immigration policies throughout the United States, rather than one all encompassing rule of law.

Many of you may be familiar with our infamous Sheriff Joe Arpaio from Maricopa County---self-proclaimed America’s Toughest Sheriff. He recently has made his rounds on all the national media outlets thumbing his nose at DHS and is currently under investigation by the Justice Department. He has had over 2,700 lawsuits filed against him. Until one gets a close up view of the utter disregard for rule of law and complete abuse of power his office engages in, the dangers of 287 (g) are not so apparent.

Rumors swirl of his political alliance with members of the Nazi party, his immigration sweeps of all “brown” people, and his mistreatment of prisoners. You would think that the more you dig around for truth, the more inaccurate some of the legends would be—but that has not been my experience. I have only found the truth to be more abhorrent than the myth.

He has taken the liberty of storming (literally) City Halls in pursuit of illegals, spends his time raiding car washes and indiscriminately placing traffic check points around the county arresting and/or detaining anyone of suspicion. Meanwhile, he completely disregards crime and criminals violent in nature. Not to mention his actions have resulted in suppressing community participation of reporting crimes. I recently heard one family had their home violently broken into 7 times in broad daylight before deciding to call local law enforcement. This was just due to the fear that has been associated with all police officers in the area, even though that fear is unwarranted in many cases. Not all police down here are Arpaio.

How does he decide who is suspicious? Consider this interview he recently conducted on October 8^th with CNN’s Rick Sanchez:

Sanchez: You just said you detain people who haven’t committed a crime—how do you prove they’re not illegal?

Arpaio: It has to do with their conduct, what type of clothes they’re wearing, their speech, they admit it, they may have phony ID’s. A lot of variables are involved.

Sanchez: You judge people and arrest them based on their speech and the clothes they’re wearing sir?

Arpaio: No, when they’re in the vehicle with someone who has committed a crime. We have the right to talk to those people. When they admit that they are here illegally we take action…the federal law specifies the speech, the clothes, the environment, the erratic behavior. It’s right in the law.

Oh yea? Where?

Sheriff Arpaio has also been quoted by a GQ reporter as saying, “All these people that come over, they could come with disease. There’s no control, no health checks or anything. They check fruits and vegetables, how come they don’t check people? No one talks about that! They’re all dirty.”

These are the quotes he makes publicly when he is on his best behavior.

It may be easy to take the approach that he is doing his job, these are illegals after all. But what has to be understood is that he is tearing mothers away from their crying children(American citizen children)—literally. Then you see people just trying to make a living, survive, and see them treated worse than animals or the deadliest of criminals. Watching this makes your heart sink.

There are pretty reliable rumors that Arpaio also abuses his power in regards to people he considers political enemies. Several individuals, including law enforcement officers in the area, have claimed that their homes have been bugged. Can you imagine it, a cop bugging the home or office of another cop? What world is this I have stumbled unto?

Recently, Arizona’s former governor Janet Napolitano , now acting Secretary of Homeland Security, unveiled an attempt to repair the immigrant detention system. It seems a letter written by Reps. Nydia Velazquez, D-NY and Luis Gutierrez, D-IL prompted the change.

“We do not believe that allowing state and local police to racially profile and target our immigrant communities inspires confidence in our ability to enact (comprehensive immigration reform),” the letter continued, “It is our experience that state and local law enforcement officials actually use their expanded and often unchecked powers under the program to target immigrants and persons of color. It is our opinion that no amount of reforms, no matter how well-intentioned, will change this disturbing reality.”

In Maricopa County, the new agreement would limit Sheriff Joe and his deputies to checking only the immigration status of jail inmates. The unintended consequences of which, could actually see an increase in arrests and detention in order to check immigration status among inmates.

If this is going on here, what is going on elsewhere? Who knows? And the problem with that is we now have hundreds, if not thousands, of local communities engaging in what they consider to be immigration law. Until the federal government takes control of the situation and reigns in the power it now gave away to any renegade Sheriff who wanted it, these abuses will continue.

What is the real Rule Number 1?

This article talks about a criminal case in Washington state where the jury came back with a not guilty verdict. The defense lawyer then asked for the jury to be polled. When the first juror was asked to confirm the verdict, she said that she didn't actually agree with it and there must have been a mistake. After further deliberations, the jury found the defendant guilty.

This legal blog suggests that the defense lawyer violated the practice of law's Number 1 Rule, which is "when things are going in your favor, STOP TALKING!" The blog also suggests that there are at least two other Rules Number 1, "always get paid," and "avoid a personal jail sentence."

I can't decide which Rule Number 1 is my favorite. I think the one about getting paid. What about you guys? Or does anyone have any other suggestions for a new Rule Number 1?

Subcontractor's Sixty Day Notice

Section 5(b)(ii) of the Illinois Mechanics Lien Act requires that subcontractors supplying services or materials to a single family, owner-occupied residence must send notice to the occupants within 60 days from the date of first supplying services or materials. That section also sets forth the contents of the notice.

The purpose of the notice is to protect the homeowner from having to pay twice for a subcontractor's work. Upon receipt of the subcontractor's notice, the owner knows that he should demand a sworn statement before paying the general contractor. The sworn statement should list all of the subs. The owner can then withhold the monies due to the subs and pay them directly, or if he receives lien waivers signed by the subs, he can pay the general contractor the whole amount.

However, is a subcontractor's failure to serve the 60 day notice fatal to its mechanics lien claim as a matter of law?

No, it is not, according to the court in Crawford Supply Company v. Schwartz, 1-09-0900 (September 25, 2009). In that case, the plaintiff was a plumbing subcontractor who filed suit to foreclose its mechanics lien. Plaintiff had properly served its 90 day notice of claim and had also recorded its lien within 4 months of completing the work. However, the plaintiff did not serve the 60 day homeowners' notice, so the defendants moved to dismiss. (Click here for a quick refresher on the timelines).

The court found it "apparent" that "the legislature did not intend for section 5(b)(ii) to be construed so technically that the Act's remedial purpose of protecting those who furnish labor or materials be undermined." This conclusion is supported, the court said, by section 5(b)(iii), which provides that notice provided after 60 days shall preserve a subcontractor's lien, but "but only to the extent that the owner has not been prejudiced by payments made before receipt of the notice."

So, the Act addresses late notices, but it does not address a complete failure to provide the notice. This is where the court stepped in to say that only upon a showing of prejudice by the homeowner will a failure to provide the notice be fatal to a subcontactor's mechanics lien claim.

GREETINGS FROM THE DESERT

Thank you everyone for your warm welcome to the Northern Law Blog community. I’d also like to thank Mr. Huseman for allowing me the opportunity and space to write my musings.

For those of you who do not know me, I suppose a brief introduction is in order. I was born, raised and lived in the Chicagoland area for most of my life. I attended the University of Arizona and graduated with a degree in Philosophy and Religious Studies before venturing back to Illinois for law school in 2000. After graduating from law school I went on to do graduate work in Philosophy focusing on Political Philosophy and Ethics. Then, last year I inexplicably (weather.com: Tucson ) decided that I would return to Arizona and have been working more in the political arena than practicing law.

Ahh, but ever the two shall meet.

I realize off the bat, that this website has been devoted to most readers coming from Illinois and I will do my best to refrain from writing on Arizona subjects. I’ll try and cover issues more federal in nature, such as Immigration or housing matters, but I can’t promise anything.

Every now and then you may find a post comparing a civilized legal system (Illinois) to that of the third world atmosphere (legally and politically) where I now find myself. As I continue to discover the differences between the legal thought and conditions within the two states, I may force part of that journey unto you.

Just when I was thinking of a subject to write the first post on, a gift was presented to me by our fine AZ Supreme Court.

On October 13^th, The Arizona Supreme Court, for the first time, announced the states in which Reciprocity will be granted. (Reciprocity_List.pdf)

And you guessed it, Illinois is on the list.

Now this news will fill many of you with strange sensations. Some will be infused with a sense of enthusiasm, others ever hopeful, and still many of you may feel an unidentified impulse, strangely related to hate or spite.

Don’t worry.

These are natural events which occur when one finds him/herself in conditions (weather.com: Elmhurst ) beyond their control.

So after stepping through a few hurdles (http://www.supreme.state.az.us/admis/ ), all Illinois attorneys practicing for 5 years or more may be eligible to be licensed in Arizona.

I hope this news finds you well.

This is confusing.

I represent the buyers in a potential short sale. Their contract is contingent upon the approval of the short sale offer by the sellers' lender. Pretty common right?

Well, there is a rider attached to the contract titled "Short Sale Form - Purchase and Sale Contract." It was apparently drafted by the Chicago Association of Realtors and is specific to short sale deals. It contains a drop-dead date by which the lender must approve the price, or we can declare the contact null and void.

The rider also contains the following sentence: "Buyer and Seller acknowledge and agree that all deadlines under the Contract shall begin to toll from the date Seller delivers written notice to Buyer that the Contract has been approved by the Lender."

On first glance, this appears to say that the deadlines shall begin to RUN when the contract is approved by the lender. That way the attorney review period, the inspection period, etc., do not start until we know that we actually have a deal.

However, upon closer review, it says that the deadlines shall begin to TOLL upon approval by the lender. What in hell does that mean? Black's Law Dictionary defines toll as "to stop the running of; to abate." As in, to "toll the statute of limitations." So, the sentence basically says that the deadlines shall BEGIN TO STOP upon approval by the lender. I don't think that makes any sense.

That is why I hate legalese. I try to avoid the wheretofores, heretofores, the parties of the first part, etc., in my writing. Why not just write it in plain language so that everyone can understand it?

Illinois Vehicle Window Tint Law

EDITOR'S NOTE: I spoke to Representative Bossi's office. Please see the comment section for a quick update on the status of this bill.



Illinois is potentially changing one of its most disfavored laws among motorist. It deals with window film, more commonly referred to as window tint. As it stands, drivers are not allowed to have any non-reflective or reflective tint film on the windows directly adjacent to each side of the driver, however if the new law takes force it will allow motorists to have window tint on the front drivers and front passengers windows which allows a 50% light transmittance.

The new notion rests in simple fact that drivers or passengers of motor vehicles should be able to protect themselves from skin cancer, while at the same time to protecting the environment from the harmful emissions created by the excessive and unnecessary use of vehicle air-conditioning systems.

Many states currently have similar rules regarding vehicle window tint, and it seems Illinois won’t be far behind. As of April 2nd, 2009 the Illinois House unanimously passed the bill in favor of the change. Currently the bill sits in the Illinois Senate after being given the “OK” by the Transportation committee.

Want to stay up to date? Check out the bill status at the Illinois General Assembly website:
Illinois General Assembly Vehicle Tinted Window Film Bill Status

Welcome Jim Fleckles!!

The Northern Law Blog is pleased to announce the addition of another contributor to the site. For those of you who don't know him, Jim Fleckles is a 2003 graduate of the NIU School of Law. Jim works in the government relations industry in Tucson, Arizona. We look forward to hearing from Jim on a number of different topics.

Glad to have you Jim!

Bar Exam Results

The week that the bar exam results are released is usually agonizing for test takers. The results are posted online, but no one knows exactly when they will be posted. For the last couple of days, many test takers have quick triggers on the keyboard and don't ever want to be too far away from a computer.

To help ease that anxiety, this year's results were going to be posted in smaller groups. Emails were supposed to go out letting people know that their groups' scores were online. They were then supposed to log in to see if they passed.

Many of this year's test takers were more frustrated than ever, however, when the IBABY website was inaccessible for long periods of time on the day that the results were posted.

Wow. That's terrible. I bet the Board of Admissions to the Bar felt horribly and issued an apology.

Nope. Guess again. They blamed the test takers. A representative from IBABY said that the test takers have no one to blame but themselves. He explained that many overanxious applicants checked the website before they received their email notification and the influx made it harder for those who had received email notification to check their results. "Some applicants are not using the system in the way it was designed to be used," he said.

In other words, they're too dumb to even check their scores without screwing up. I'll bet that made them feel a lot better.

The Consumer Rights Brochure

The Home Repair and Remodeling Act has been discussed frequently on this blog. You will recall that the Act requires any person engaged in the business of home repair or remodeling (except subcontractors) to obtain a signed contract from the homeowner for projects worth more than $1,000. The Act also requires the contractor to provide the homeowner a Consumer Rights Brochure published by the Attorney General's office.

Until now, no court in Illinois had decided whether the failure to provide the Consumer Rights Brochure, by itself, was a material breach of the Act which would bar recovery by the contractor. In Artisan Design Build, Inc. v. Bilstrom, No. 2-08-0855 (September 22, 2009), the Second District has ruled that it is not. (Opinion here.)

In that case, plaintiff was hired by the homeowners to make improvements to their home. After several change orders, several partial payments, and several disagreements, the plaintiff eventually filed suit against the homeowners for approximately $208,000. The parties did have a written contract. However, the homeowners filed a motion to dismiss under the Act for plaintiff's failure to provide the Consumer Rights Brochure.

The court interpreted the Act de novo. The court noted that Section 30 of the Act specifically declares that it is unlawful for contractors to perform work for more than $1,000 without first obtaining a written contract. In contrast, Section 20, which requires the Consumer Rights Brochure, does not provide that a failure to furnish the brochure constitutes an unlawful act or otherwise has any impact with respect to the enforceability of the contractor's rights.

In its holding, the court "interpreted the plain language of the Act to mean that a contractor's failure to provide the consumer with the brochure does not vitiate the contractor's right to recover either in equity or in law."

Thank goodness. Any other result would have been absurd.

Automatic Stay Refresher Course

I had a defendant file bankruptcy last week to prevent an eviction. He filed bankruptcy two days before the eviction was scheduled to occur. His hand-written petition listed my client, the landlord, as his only creditor.

What this defendant did not know, however, was that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") amended Section 362 of the code so that the automatic stay does not apply to "any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of filing of the bankruptcy petition, a judgment for possession of such property against the debtor."

In other words, you can't file bankruptcy to prevent an eviction when your landlord has already obtained an order of possession. He was evicted on Monday.

Job Hunting: The Good, The Bad, The Ugly

In this economy, finding a decent paying legal job is not an easy journey. Finding a dream job is even more nightmarish. Luckily, the Illinois State Bar Association (ISBA) has stepped up to the plate to present,

"Job Hunting Strategies for a Lousy Economy: The Good, The Bad, and The Ugly".

This practical seminar will take place this Thursday, September 24, 2009 at the ISBA's Chicago office and provide effective job-hunting tips that will help you avoid the traps that add stress to an already stressful situation.

For more information visit: http://www.isba.org/lawed/2009/09jobhunting/

Man gets DUI for driving his motorized wheelchair...on the interstate.

What else can I say?

Full article here.

I think he pushed him.

UPDATE:

I received a call from attorney Mark Brennan who was upset by the label that I applied to him in the previous title to this post. He also claims that he didn't push opposing counsel during the hearing. So I changed the title to the post.

ORIGINAL POST:

Colorado attorney Mark Brennan was recently cited for contempt of court TWICE during his own DISCIPLINARY HEARING relating to allegations of past misconduct!

Then he pushed his opposing counsel!! And it is on video!!! The presiding judge actually had to admonish the lawyers that it wasn't "trial by combat"!!!!

You have to check out this link, courtesy of Lowering the Bar. Here is another article about the shoving incident.

New notice required under Mechanics Lien Act.

The Mechanics Lien Act was amended to require a new notice to homeowners in owner-occupied single-family residences. Contractors now must send homeowners written notice within 10 days after recording a lien against their property.

The amendment does not apply to subcontractors. The amendment is effective for contracts entered into after January 1, 2010.

Complete text of the amended section (770 ILCS 60/7).

New Home Repair and Remodeling Act case.

There are now conflicting opinions between the 1st and 4th districts as to whether the equitable remedy of quantum meruit is available under the Home Repair and Remodeling Act -- Who wants to go to the Supreme Court?

On August 10, 2009, the 1st District issued its opinion in K. Miller Construction Company, Inc. v. McGinnis (Opinion here). In that case, the homeowner, a lawyer, ordered nearly $500,000 in remodeling work to his house. The general contractor did not require a written contract. Long story short, the homeowner did not pay. The contractor sued for breach of oral contract and quantum meruit (literally, "as much as he deserves") and the trial court dismissed.

The 4th District held in Smith v. Bogard, 377 Ill.App.3d 842 (2007), that permitting a recovery in quantum meruit "would run afoul to the legislature's intent of protecting consumers, would reward deceptive practices, and would violate public policy."

However, the 1st District said that it was "unpersuaded by the reasoning" in Smith. The Court then spent nearly 40 pages explaining its reasoning before it held that quantum meruit remains an equitable remedy available under the Act. The Court explained that in a case for quantum meruit, the plaintiff is only entitled to "as much as he deserves." The defendants are allowed to present evidence concerning unfinished work, shoddy work, etc., and the plaintiff's claim would presumably be reduced accordingly. Quantum meruit is a proper avenue of recovery because the nature of the remedy itself provides ample protection against abuses the passage of the Act was meant to protect.

It should be noted that the plaintiff in K. Miller v. McGinnis was a general contractor. I believe that a quantum meruit recovery is still unavailable to subcontractors, but this case definately gives us some good points to argue.

Can they sue the fence company?

I'm just kidding about that one, of course. I would never advocate a lawsuit against a fence company. As most people who know me realize, I built miles and miles of fence while growing up and working for my dad's fence company. But still, it seems like the salesman for the fence company discussed below should have had a little more sense when bidding this job.

A woman in Tooele, Utah, named Paula Warr bought a model home from a company called Ivory Homes. When Ms. Warr first visited the house, it did not have a fence. She eventually negotiated a contract to purchase the house and the contract specified that the builder would provide 92 linear feet of white vinyl fence. The homebuilder then contracted with a third party fence builder, who could not get to the job prior to closing. So, the parties closed anyway, with an agreement that the fence would be installed post-closing.

Sometime later, Ms. Warr returned home from work to find that her new fence had been installed around the backyard. She began walking around the fence trying to get into the backyard, but she could not get into her backyard. There was no gate in the fence.

Now, her grass is more more than a foot tall. Her lawnmower can't fit through the kitchen and it is too heavy to lift over the fence. Her garage does not have backyard access either. "Who puts up a fence without a gate?" Warr asked. "Nobody wants to take a lawnmower through their house."

Ivory Homes says a gate was never part of the deal. A spokesperson for Ivory Homes released a statement saying that "Paula Warr's contract does have 92 lineal feet of fencing to be installed as part of the purchase agreement. However, there was no request for a gate as part of the agreement. Based on these facts, we feel that we have fulfilled our contractual obligation."

So, maybe the fence company did suggest a gate, but the homebuilder did not want to pay for one. I knew it couldn't be the fencers' fault!

Illinois Courts ....on Twitter?

It seems, everyone has some type of social networking or communication web page now days. Well leave it to the Illinois courts to keep up with the trends. Below is the link to the official Illinois Courts Twitter Page, where you can find out about new opinions, programs, and more.

http://twitter.com/illinoiscourts

Required Statements to Accompany Motions for Relief from Stay

Effective August 18, 2009, the Northern District of Illinois has amended the Required Statement to Accompany Motions for Relief from Stay. The new form now requires that the movant attach a payment history listing the dates and amounts of all payments received from the debtor(s) post-petition.

I had always included that information in my Motion for Relief anyway, but now it is a requirement.

Here is a link to the form in a fillable PDF.

I have also posted it to the NLB Forms Archive.

Big time.

The judge in Lehman Brother's bankrupty case has approved $55.14 million in legal fees for New York law firm Weil Gotshal & Manges. Those fees were incurred in the four month period from September 2008 through January 2009.

The awarded fees amount to about $357,000 a day for the firm, or nearly $15,000 an hour around the clock. The firm employed 490 lawyers on the case. The lead partner on the file, Harvey Miller, billed 795 hours at $950 per hour, or $755,250. The firm also billed $2.77 million in expenses. Click here for a report from the Wall Street Journal.

A “fee committee” appointed by the judge reviewed fee and expense requests and found very few issues. The committee determined only $223,262 of the fees and $75,000 of the expenses did not pass muster, most because they were inadequately described in the fee petition.

The committee also recommended that in the future further explanations were needed for charges of more than 18 billable hours in a day for one person and hotel charges exceeding $500 a day. The committee also suggested overtime and working meals be limited to $20 a person and that car services only be used after 8 p.m. and limited to $100 a trip.

Good business card trick.

I came across a great way to make sure that you will never lose a business contact for failure to have a business card on you. I have seen it described online as a $7.00 insurance policy against losing a business contact.

Most people's contact information appears online at some place or another, but it can be difficult to explain to someone, and more difficult for them to remember, the web address to your law firm's site, your facebook page, etc. Even if you just say "google me," they still have to remember how to spell your last name. That is the point of having business cards. But what do you do if you are caught without your business card?

For roughly $7.00 you can purchase an internet domain featuring your first name only. I chose imetmike.net. That way, if I don't have a card on me when I meet someone, I can direct them to that short and simple website rather than explaining to them that my law firm's website is at DreyerFoote.com, Dreyer has two Es, and Foote has an E at the end, etc.

The idea was originally proposed by this guy. As you can see from the comments to his blog, most people love this idea. Although I have seen other people say that this is ridiculous and pretentious, I think it is a great idea.

By the way, if my business cards were as awesome as the one pictured above, I would never leave home without them.

The dog ate my homework...

...and the cat downloaded my child pornography.

Keith R. Griffin, of Martin County, Florida, was charged Wednesday with 10 counts of possession of child pornography after detectives found more than 1,000 child pornographic images on his computer, according to a news release.

Griffin told detectives he would leave his computer on and his cat would jump on the keyboard. When he returned, there would be strange material downloaded.

Damn perverted cats. That is why I like dogs. Full article here.

Successor Liability

Last month I took a very large default judgment against a local construction company. Their attorney claims that they have "gone out of business" and that a "new corporation" is now in control. I sometimes drive by their office/warehouse which is located on prime real estate right on a local highway. They seem to be operating at full strength. They have about a dozen vans and trucks out front with their name on them, along with what appears to be a large amount of inventory, equipment, tools, etc.

A search of the Secretary of State's website reveals that my defendant corporation is dissolved, but that there are several different, newer corporations in existence. The new corporations' names are all very similar to that of my defendant and they are all seem to be run by the same people. I have served the president of my corporate defendant with a citation to discover assets and I believe that he is also the president of the new corporations.

In preparation for his citation, I have been researching the areas of fraudulent conveyances and successor liability. Conveyances of assets from one party to another can be set aside if a court finds that there was an intent to defraud the creditors of the transferring party. A discussion of the laws relating to fraudulent conveyances will be discussed more fully in a later post.

This post deals with successor liability. Successor liability comes into play when one company buys the assets of another company. Generally, the purchaser tries to buy those assets free and clear of the seller's debts and liabilities. When successor liability is imposed, a creditor of the seller can proceed against the assets of the purchaser.

There are four categories of successor liability recognized by Illinois courts. See Vernon v. Schuster, 179 Ill.2d 338 (1997). I will comment briefly on each.

Intentional assumption of liabilities

To make this determination, you need to look to the purchase contract between the two organizations. The general rule is that the purchaser does not assume the liabilities of the seller absent a specific contractual agreement to the contrary.

De facto mergers

The courts will look to whether there was a continuation of the enterprise of the seller corporation. For instance, is there a continuity of management, personnel, physical location, assets, or general business operations? Are the owners of the old corporation now working at the new corporation? Etc. If so, you may argue that it is a de facto merger and that successor liability should attach.

The business continuation exception

For this theory, the courts will look to see if there is a continuity of ownership in the two organizations. For instance, is there a continuity of officers, directors, or shareholders? If so, you can argue that the new company is simply a continuation of the old company. This argument should be used when the assets were seemingly purchased for fair market value. If they were not, see the last category.

Fraudulent schemes to escape liability

If the seller's shareholders sell the assets of the company for less than fair market value to another company in which they also hold an ownership interest, or to other "insiders," the courts can impose successor liability.

Did you see Dean Pernell's picture this morning?

Less than one year after leaving NIU and taking over as Dean at the Florida A&M University College of Law, Dean LeRoy Pernell has succeeded in gaining full accreditation for the school from the American Bar Association.

Full article here.

New Search Feature

A new search box appears about half-way down on the right side of this blog. You can now search all of the content and links which have appeared on this site.

Great client.

I'm sure most of you have heard about the defamation suit filed by the Cook County landlord against one of its tenants for comments allegedly made by the tenant on twitter.

I don't have any comments about the merits of that lawsuit. But I do like the mentality expressed by the landlord's representative in the Sun-Times article this morning.

"We're a sue first, ask questions later kind of an organization," he said, noting that the company manages 1,500 apartments in Chicago and has a good reputation it wants to preserve.

I need more clients like that guy.

Mandatory Arbitration is a Mandatory Waste of Time

Those of you who practice civil law know that cases which are deemed less than a particular jurisdictional amount are assigned to the mandatory arbitration call. Presumably, this is supposed to provide a more efficient way of disposing of "lesser" cases. Unfortunately, it does the exact opposite. Anyone that has participated in mandatory arbitration will know what I am driving at.

There really is no great victory at an arbitration hearing. Case in point. Assume, as a plaintiff, you put on your absolute best case and the abitrators give you a great award. The judgment is not worth the paper it is written on. Since the other party has the right to reject the award, pay a nominal fee, and proceed to trial, your great award will last a mere 30 days. Likewise, if a defendant obtains a low judgment or the ultimate victory, a not guilty, the plaintiff will reject the award and proceed to trial. Hence, you are left with a plaintiff who must tries his or her best to present a case that is strong, but not too compelling, since ultimately that good award will be rejected and a defendant who must make sure that a not guilty does not occur.

What are you left with? A long delay in getting the case to arbitration and one side having to pay an additional fee so that you can proceed to jury trial when you should have been on that path to begin with.

The better option would be an optional arbitration system. If two parties would like to see if they can resolve the case before a 1 or 3 panel arbitration, they can share the fees and reject without consequence. Indeed, cases are often disposed of more efficiently, with both parties relatively comfortable with the outcome, during voluntary mediation.

Agreed Orders

Can a party vacate an agreed order? That was the question answered by the court in Rolseth v. Rolseth, 907 N.E.2d 897 (Ill.App. 2 Dist. 2009), which originated out of Kane County.

In that case, the former husband petitioned to declare the nonexistence of a parent-child relationship between him and two of his former wife's children for whom he had been paying child support. That petition was resolved by way of an agreed order. Thereafter, the former wife filed a motion to vacate the agreed order. Her motion was denied and she appealed.

The appellate court noted that an agreed order is not an adjudication of the parties' rights, but rather a record of their private, contractual agreement. The court further noted that once an agreed order is entered, it is generally binding on the parties and cannot be amended without the consent of each party.

There are exceptions to that general rule, however. After a discussion of the case law and statutes dealing with modifying and vacating agreed orders, the court held that agreed orders may be modified or vacated only upon a showing that meets the standard applied to Section 2-1401 petitions, which require a showing of a meritorious defense or claim as to the underlying issue.

New Forms Archive

Check out the new Forms Archive section beneath the contributors' names on the right side of the page. After posting a link to a new subpoena form that I created this morning, I thought that we should have a place where all of the contributors could post their forms. It would be nice to eventually have form complaints, motions, etc.

If anyone wants to post a form, let me know and I can send you the link for full access. Also, if anyone desires a form, post a request and one of our contributors will hopefully be able to upload a copy.

New Subpoena Form

As of June 1, 2009, subpoenas in Illinois civil actions can now be issued by attorneys. This is obviously more convenient than driving to the courthouse every time you need to issue a subpoena.

735 ILCS 5/2-1101 now provides that "An attorney admitted to practice in the State of Illinois, as an officer of the court, may also issue subpoenas on behalf of the court for witnesses and to counties in a pending action."

I am not aware of any circuit clerks that have printed new forms yet. I have heard some lawyers say that they are using the old forms, but just signing their own name on the line where the circuit clerk used to sign.

There is a new form being circulated on the ISBA email exchange which provides a spot for issuance by the clerk, or issuance by an attorney. I have modified the form to suit my personal preferences.

Here is a link to the document. Feel free to modify this form for your own use.

No cause of action for emotional damages only.

The plaintiff in Morris v. Harvey Cycle & Camper, Inc., No. 1-07-3271, 2009 WL 1685137 (1st Dist. June 12, 2009), alleged a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, but she claimed only emotional distress, inconvenience, and aggravation as her damages. She had no actual damages. It is hard to believe this case was filed, much less appealed. But I guess I will give some credit to the plaintiff's attorneys in their attempts to expand Illinois tort law to include compensation for aggravation only. Just think how many lawsuits you would have been able to file this week alone if they would have succeeded.

Defendant's conduct did seem pretty outragous though. In that case, plaintiff's brother Shawn made a down payment on a car at defendant’s dealership with the sale contingent on financing. Shawn was allowed to use the car while defendant attempted to arrange financing. After several days, defendant’s employees called Shawn and asked him to come to the dealership to re-sign some loan papers. Plaintiff accompanied Shawn to the dealership. After they arrived, they learned that Shawn had not qualified for financing. Shawn then offered to return the car in exchange for the return of his down payment.

Plaintiff alleged that defendant’s employees then pressured her to cosign the loan so the deal could go through. When she refused, defendant’s employees started yelling at her and Shawn and blocked the car to prevent them from leaving the dealership. The employees then called the police, reporting the car as stolen. Several squad cars and police officers arrived at the scene. Defendant’s employees told the officers that plaintiff and Shawn had stolen the car. Police officers considered that a false report. Police officers then told defendant’s employees to stop trying to intimidate plaintiff and Shawn. Shawn eventually returned the car and got back his down payment.

Plaintiff alleged violation of the Consumer Fraud Act. The trial court dismissed plaintiff’s complaint for failure to state a cause of action. The Appellate Court affirmed. The Court found that only a person who suffers actual damages as a result of a violation of the Consumer Fraud Act may bring a private action under the Consumer Fraud Act.

Bar Review Rant

As you all fondly recall, the Bar Exam occurs during the last week of July. This year's exam is less than two weeks away. HERE is a link to a blog which reprints an absolutely hilarious email being forwarded among this year's examinees. Enjoy!

Judge finally rules on 24 year-old motion.

From the Associated Press:

GREAT FALLS, Mont. – The wheels of justice grind slowly, but this is pushing the envelope. In Montana's Toole County, retired District Judge Ronald McPhillips ruled this week in a lawsuit that was left hanging for nearly a quarter-century. The judge ruled in Great Falls against Milan Ayers, who contended that former partner James Rubow swindled him out of his share of a natural gas field, with leases potentially worth millions of dollars.

The lawsuit was filed March 31, 1983. The last entry in the clerk's register was in March 1985. Then the file disappeared from the clerk's office.

After the Great Falls Tribune wrote about it, McPhillips found the case documents.

"I think he found it in an old briefcase he had at home," said longtime administrative assistant Elda Nichols, who had worked for McPhillips before his retirement in 1994.

McPhillips brought the lawsuit and his notes to the court late last week, said Nichols, and District Judge Laurie McKinnon asked the Montana Supreme Court for guidance on how to proceed.

If the case is in good shape, let McPhillips rule on it, the judge was told.

On Monday, McPhillips ruled that Rubow did not breach his agreement with Ayers. The lawsuit was dismissed, and no damages were awarded.

"He had taken very good, very copious notes on the case, so it was good he was able to rule on it, and we were able to avoid a new hearing," Nichols said.

Ayers said he's uncertain whether he'll appeal.

Happy Fourth of July!

West's Headnote of the Day:

157 Evidence

157I Judicial Notice

157k21 k. Customs and Usages.

Supreme Court took judicial notice of significance of Fourth of July to American people and of fact that firearms are frequently discharged in celebration on that date.

Edwards v. Business Men's Assur. Co. of America, 168 S.W.2d 82 (1942)

New Rules of Professional Conduct

The Illinois Supreme Court has amended the Rules of Professional Conduct. The new rules take effect January 1, 2010.

See the Supreme Court's press release here.

Refresher Course - Hearsay

I knew a guy in college who decided to run from the police just to see if they would chase him. He had done absolutely nothing wrong, but he was walking past two police officers, made eye contact, and then took off running just to see if they would chase him. They did. But they didn't catch him. We all had a good laugh about that one. We never could figure out why they were chasing him. What my friend did not know was, that under Illinois' statutes, he could have been charged with resisting a peace officer (if they would have caught him).

The defendant in People v. Sorrels, 906 N.E.2d 788 (Ill.App. 4 Dist. 2009) was approached on foot by a police officer for no reason whatsoever. The police officer testified that he drove past a church and saw three men standing in the doorway. He circled the block and when he came back around, the three men were still standing in the doorway. So he decided to park his car and go investigate this outrageous and egregious display of three people standing on a sidewalk doing nothing wrong. Two men stayed, but one man ran. The officer yelled "stop," but the man did not stop. The police officer eventually caught the man. The man was arrested for nothing other than resisting a peace officer. He was eventually convicted.

Defendant appealed. One issue on appeal was whether the officer's testimony that he yelled "stop" was inadmissible hearsay. Hearsay, as you recall, is defined as an out-of-court statement offered to prove the truth of the matter asserted. The court, however, went on to explain that many out-of-court utterances fall within such categories as "greetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions of joy, annoyances, or other emotion, etc." The court found that such utterances "are not intended expressions of fact or opinion. They are not assertions, at least for purposes of the hearsay rule. Thus they are not hearsay."

I completely agree that the officer's statement is not hearsay, but I don't necessarily agree that you can simply say that greetings, instructions, warnings, etc. can never be hearsay. That seems a little too easy. Maybe if this appellate court would have written our evidence text book it wouldn't have been 1600 pages long.

The Drainage Code.

I handled a drainage case a couple of years ago. My client's basement flooded after the neighboring farm was developed by a local home builder. We alleged that the defendant had, by artificial means, changed the natural drainage of its real estate in such a manner that water flowed onto my client's property in a quantity greater than that which had flowed naturally.

That case settled relatively quickly, so I did not have a chance to become a true drainage law expert, but a recent drainage law case from the Illinois Supreme Court caught my eye. In that case, the Christensen family started subdividing its 100 acre farm in 1994. Plaintiffs bought 65 acres. Defendants bought 19 acres directly south of plaintiffs' land. Water from plaintiffs' property drained in a south-easterly direction, right onto defendants' property.

Long before they sold it, the Christensens had installed clay drainage tile on their property. When plaintiffs' purchased their portion of the property, the tile needed extensive repairs and plaintiffs wanted to replace the clay tile with corrugated plastic tile. Because it was a unified system of tile across both plaintiffs' and defendants' land, plaintiffs needed access onto defendants property to extend the new plastic tile. Defendants would not allow plaintiffs onto their property to make the necessary repairs and improvements, so plaintiffs filed suit.

Plaintiffs sought a declaratory judgment that the natural flow of water from plaintiffs’ property is over and through the property owned by the defendants and that pursuant to the Illinois Drainage Code plaintiffs should be allowed access to defendants' property to make the necessary repairs.

The Court found that if plaintiffs originally paid for construction of the tile system, or if they are successors in title to the persons who did, they have a statutory duty to keep the drainage tile in good repair. If the tile system was originally constructed by mutual license, consent or agreement of the adjacent landowners, plaintiffs then have the right to enter “upon the lands upon which the drain *** is situated and repair the drain.”

So, plaintiffs could access the defendants' property, but the defendants expressed concern that the tile work contemplated by plaintiffs would damage their fields and the existing tile. Not to worry, said the Court. In a repair case involving the land of another, the plaintiff is liable, by statute, for the actual damages caused by the repair work. 70 ILCS 605/2–6 (West 2004). Those actual damages can be resolved in proceedings conducted after the work is completed.

Media Bias.

I tried my first case in front of the media yesterday. A reporter from the Naperville Sun was in the courtroom for the nearly three-hour trial, although I did not know that at the time.

Anyway, we won the case, but the article glorifies the defendants' unfounded complaints. I could not believe the testimony coming from the defendants. The judge specifically found that the defendants' testimony was not credible. We prevailed on every issue. Then this article comes out portraying my client as the bad guy. This particular paper has been after my client for a long time.

A prime example of biased reporting here.

Online law student passes the bar exam

An online law school graduate who sued the Supreme Judicial Court of Massachusetts for the opportunity to take that state's bar examination is now a newly minted Massachusetts lawyer.

Ross E. Mitchell is the first Massachusetts lawyer with an exclusively online legal education. Last November, Mitchell won his case against the state's Board of Bar Examiners, which denied his bid to bypass a requirement that U.S.-trained applicants be graduates of an American Bar Association-accredited law school.

The court allowed Mitchell to sit for the bar because the ABA is mulling changes to its accreditation standards. Last September, the ABA launched a comprehensive review of its standards for the approval of law schools. Currently, ABA-approved schools can only allow graduates to take up to 12 credit hours of classes online.

Mitchell, who was a pro se litigant in his Supreme Judicial Court case, graduated from Concord Law School. Mitchell has also passed the California general bar examination and the Multistate Professional Responsibility Examination, and he was admitted to practice before the U.S. Court of Appeals for the 1st Circuit.

Indiana Mechanics Lien Update

Like in Illinois, people performing work on buildings in Indiana can place a mechanics lien on the property on which the work was performed. Pursuant to that State's mechanics lien act, lienable work includes the erection, alteration, repair, or removal of a building, among other things.

The Indiana Court of Appeals recently considered what qualifies as a "repair" under the statute. The case Midwest Biohazard Services, LLC v. Rodgers, 893 N.E.2d 1074 (Ind. Ct. App. 2008), concerned the clean-up and removal of a decomposing body.

Apparently Mr. Rodgers, Sr. died in his home. His body was not discovered for several days. During that time, his body decomposed causing fluids to leak into the carpet, subfloor, and down into the basement. Mr. Rodgers, Jr. contracted with Midwest Biohazard Services ("Midwest") for the clean-up and removal of his father's decomposed body. After the work was complete, Mr. Rodgers, Jr. informed Midwest that he would not be paying them.

Midwest quickly recorded a mechanics lien and filed suit to foreclose. The trial court dismissed, finding that the services did not constitute a repair under the statute. On appeal, Midwest argued that it performed repairs, but Mr. Rodgers, Jr. argued that they performed only cleaning services.

The Appellate Court looked to the purpose of the act and to the definition of the work repair. Because that word is not defined in the act, it is given its plain and ordinary meaning, which includes restoring something to its original value. The Court noted that a home free of biohazard contaminants was worth much more than a home that was full of biohazard contaminants, so the house had been repaired by Midwest and they were entitled to their lien.

Common Knowledge

I recently signed up for West's Headnote of the Day. They send you a random headnote from a random case via email everyday. Here is today's:

157 Evidence

157I Judicial Notice

157k14 k. Facts Relating to Human Life, Health, Habits, and Acts.

It is a matter of common knowledge that the United States is not a wine-drinking country, such as are some of the European countries.

In re Riverbank Canning Co., 95 F.2d 327 (1938)

True of False?

This story was posted to the ISBA email exchange. There was some debate back and forth as to whether this was actually a true story. The original poster claimed that this was a true story that took place in Charlotte, North Carolina. True or not, it is a good story that is worth reposting here. Here it is:

A lawyer purchased a box of very rare and expensive cigars, then insured them against fire, among other things.

Within a month, having smoked his entire stockpile of these great cigars, the lawyer filed a claim against the insurance company. In his claim, the lawyer stated the cigars were lost 'in a series of small fires.'

The insurance company refused to pay, citing the obvious reason, that the man had consumed the cigars in the normal fashion!

The lawyer sued and WON!

While delivering the ruling, the judge agreed with the insurance company that the claim was frivolous. The judge stated nevertheless, that the lawyer held a policy from the company, in which it had warranted that the cigars were insurable and also guaranteed that it would insure them against fire, without defining what is considered to be unacceptable 'fire' and was obligated to pay the claim.

Rather than endure lengthy and costly appeal process, the insurance company accepted the ruling and paid $15,000 to the lawyer for his loss of the cigars that perished in the 'fires'.

NOW FOR THE BEST PART....

After the lawyer cashed the check, the insurance company had him arrested on 24 counts of ARSON!!!

With his own insurance claim and testimony from the previous case being used against him, the lawyer was convicted of intentionally burning his insured property and was sentenced to 24 months in jail and a $24,000 fine.

What do you think? True or not?