Tuesday, November 24, 2009

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.

Thursday, November 19, 2009


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.

Wednesday, November 18, 2009

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.

Thursday, November 12, 2009

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.

Wednesday, November 11, 2009

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.

Monday, November 9, 2009

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.


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.

Thursday, November 5, 2009

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.