Thursday, September 30, 2010

Admissibility of Writings and Recorded Statements

I am slowly going through the new Illinois Rules of Evidence, which will become effective on January 1, 2011.  I will be writing about some of the more interesting ones.  The new rules are on the Supreme Court's website here.

Rule 106 concerns the remainder of writings and recorded statements. Here is the rule:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
This would probably not be an issue in a case where you have completed discovery. That way, if my opponent offers only part of a document, I will simply offer the rest of it during my case because I will have a copy going in.

But this rule could become useful in small claims court. I have seen lawyers try to introduce only parts of documents a couple of times. Mainly in credit card cases where the plaintiff only seeks to admit certain paragraphs or pages of the 25 page cardholder agreement.

With an objection under this rule, you would hope that they don't even have the complete document with them. That way even the portion that they have should be excluded.

Tuesday, September 28, 2010

NIU Law School is the 13th Best Value in the Country.

preLaw Magazine and the National Jurist have ranked this country's law schools by value.  Law schools make the Best Value rankings if they meet three criteria:  Their bar pass rate is higher than the state average; their average indebtedness after graduation is below $100,000; and their employment rate nine months after graduation is 85 percent of the class or higher.

NIU ranks 13th on their list, higher than any other law school in Illinois. Click here for the full explanation of the rankings from

2010 Best Value Law Schools: The Top 20

1 Georgia State University
2 Brigham Young University , UT
3 University of Louisville
4 University of Nebraska--Lincoln
5 University of Kansas
6 University of New Mexico
7 University of Mississippi
8 Florida State University
9 University of Memphis
10 Florida International
11 University of Tennessee
12 University of South Carolina
13 Northern Illinois University
14 University of Kentucky
15 University of Georgia
16 University of Alabama
17 Texas Tech University
18 Louisiana State University
19 University of North Dakota
20 University of Florida

Monday, September 27, 2010

New Illinois Rules of Evidence

The Illinois Supreme Court has announced the Illinois Rules of Evidence, which are effective January 1, 2011. 

Click here to see the new rules on the Supreme Court's website.

Sunday, September 26, 2010

He's still not paying his bills.

I wrote about Bryan Siewin back in February 2009. At that time, someone broke into his house, caused about $70,000 worth of damage, and spray painted "Pay Your Bills" all over the walls.

Well, it seems that he didn't quite learn his lesson. He was been sued by Von Tobel lumber in an attempt to recover payment for approximatley $375,000 worth of lumber that they sold him.

Here is the latest article from the Northwest Indiana Times.

Friday, September 24, 2010

My Pregnancy, My Home, My Choice?: Regulating Home Births in Illinois

In the state of Illinois around 1,000 babies are born at home every year, as opposed to hospital delivery. Most women who choose home births usually do so for religious reasons, financial reasons or pure personal preference. Regardless of the reason, under Illinois law the only legal home births are those attended by a physician or a nurse midwife, an advanced-practice nurse with a secondary degree in midwifery. However, according to the Illinois Department of Vital Health Statistics, licensed home-birth practitioners work in only 7 out of 102 Illinois counties mostly in Cook and Lake counties, which means most of Illinois home births are done illegally or unattended since many home-birthed babies are born in rural locations.

Due in part to such low numbers of licensed home-birth professionals, State Representative Robyn Gabel, Democrat of Evanston, has been pushing for change via the Home Birth Safety Act. Supporters of the bill say it toughens homebirth standards and protects pregnant women, but those opposed to the bill argue that home births are inherently more dangerous than births in medically supervised settings.

The “to regulate homebirths or not?"/"to allow homebirths or not?" debate has been a 30-year struggle with the state legislature, including a push to license direct-entry midwives. The State Senate passed the Home Birth Safety Act in May and a House vote is pending. Perhaps all parties involved should peruse the children's book We’re Having A Homebirth to gain a better understanding of what rights and responsibilities are at stake.

Read the NY Times’ story about Illinois Home Births here.

Thursday, September 23, 2010

Landlord Lien vs. Bank Lien

The landlord owned a commercial building. The tenant signed a lease that stated that all alterations and additions to the building which are permanently affixed to the premises automatically become the property of the landlord without any payment to tenant.

The tenant installed several large machines which became permanently affixed to the floor. At that time, the tenant also gave security interests in the machinery to its bank. The tenant then stopped paying rent, stopped paying its loan from the bank, and abandoned the machinery.

The landlord filed a distress warrant seeking to distrain the machinery. The bank filed a replevin action seeking attachment of the same machinery.

Illinois law grants a landlord a common law lien on its tenant's property for the non-payment of rent that is perfected by the filing of a distress warrant and inventory with the clerk of the court. 735 ILCS 5/9-302.

Unfortunately for the bank, the collateral at issue were trade fixtures. In order to perfect a lien against trade fixtures, the secured party must record its financing statement with the county recorder's office. 810 ILCS 5/9-501.

Therefore, the landlord's perfected security interest trumped the bank's unperfected security interest.

Southwest Bank of St. Louis v. Poulokefalos 01-09-2387 (June 4, 2010).

Thursday, September 16, 2010

Home Repair and Remodeling Insurance - If You Are Liable Under the HRRA, Your HRRA-required Insurance May Not Cover You

The following is a guest post from Nathan Hinch. Mr. Hinch works at Mueller & Reece, LLC in Bloomington. He also writes at the Hinch Law Blog.

If you are familiar with the Illinois Home Repair and Remodeling Act (the HRRA), you know that the law requires home repair and remodeling contractors to carry certain minimum insurance, including the following:
"...public liability and property damage insurance in the amount of $10,000 per occurrence for home repair or remodeling not in conformance with applicable State, county, or municipal codes, unless the person has a net worth of not less than $1,000,000 as determined on the basis of the person's most recent financial statement, prepared within 13 months." (emphasis added).
There is a long line of cases analyzing what is and is not an "occurrence" in the context of a contractor's commercial general liability (CGL) insurance policy. That issue is beyond the scope of this post, but suffice it to say that it is a complicated and hotly contested area of the law, perhaps especially so in Illinois. Throw the HRRA into the mix, and you have the recent case of West Bend Insurance Company v. The People of the State of Illinois, Case Number 1-08-1693 (Ill. App. 1st District, May 27, 2010).

West Bend is actually a consolidated opinion of four lawsuits against a contractor, Father and Sons Contractors, Inc, by the Illinois Attorney General and three private homeowners under the HRRA and the Illinois Consumer Fraud and Deceptive Business Practices Act, among other claims. The contractor tendered defense to its insurer, West Bend. West Bend filed suit in all four cases seeking a declaratory judgment that it had no duty to defend or indemnify the contractor. The trial court granted West Bend's motion for summary judgment and the contractor appealed.

The contractor in this case had an endorsement in its CGL policy that covered "improper home repair and remodeling," limited liability to "'property damage' arising out of 'improper home repair and remodeling' - $10,000 per 'occurrence,'" and excluded "'improper home repair and remodeling' knowingly performed by the insured." (emphasis added).

The Appellate Court held that the complaints against the contractor did not allege any occurrences, but instead alleged "deliberate fraud and intentional acts of faulty workmanship;" and did not allege any "property damage," because that term in this context refers to damage to the property of others, not mere economic losses of the insured. Finally the Court held that the exclusion in the policy of "improper home repair and remodeling knowingly performed by the insured" bars coverage, since the complaints did not allege mere negligence by the contractor. For these reasons, the insurance company had no duty to defend or indemnify the contractor. In other words, the contractor had the home repair and remodeling insurance required by the HRRA, but still was not covered. Contractors, check with your insurer and your attorney so you understand what your CGL policy does and does not cover in advance, so you are not hit with a surprise.

Nathan Hinch
Mueller & Reece, LLC
202 North Center Street, Suite 1
Bloomington, Illinois 61701

Wednesday, September 15, 2010

This isn't Russia, is it Danny?

The Kane County State's Attorney's Office has launched a Holiday Alcohol Testing program that will require certain offenders to submit to alcohol testing twice a day during major holidays, once in the morning and once in the evening.

As part of the program, the court can order a person already convicted of DUI to take part in the holiday testing program. Those who qualify would be people who have been ordered by the court not to drink — most likely repeat DUI offenders, or a person deemed by the court as "high risk" and likely to violate the terms of his sentence.

Testing periods not only fall during all major holidays, but also during SUPER BOWL WEEKEND and during MARCH MADNESS!!!!

Holy cow!! Not drinking is one thing, but if I had to drive up to the courthouse for a breath test during the March Madness games, I would be really angry!!

Also, is it really a good idea to require these people to be on the road during the holidays? The article in today's Aurora Beacon stated that the program started on Labor Day weekend. Two people out of 17 failed their breath tests. And the State's Attorney made them drive to the test center for the breath tests!!!

I can't wait for someone to be seriously injured as a result of this new policy. We'll see how brilliant it is then.

Thursday, September 9, 2010

Ownership of Funds in a Joint Account

One of the quickest ways to collect money due on a judgment is to garnish a bank account. Problems arise, however, when the account is held by joint owners, but the judgment is only against one of the account holders. This situation often arises in the context of husband and wife.

Under Illinois law, there is a presumption that each owner of a joint account owns all funds in that account. In other words, there is a presumption that a deposit by one person into a joint account is essentially a gift to the other person which he can then use how he pleases. Therefore, a judgment creditor establishes a prima facie case for turnover when it shows that the judgment debtor is one owner of a joint account.

The burden then shifts to the debtor to prove what part of the funds, if any, belong solely to the non-debtor joint owner. Factors used in determining the ownership of funds in a joint account include: 1) control over the funds in the account; 2) contribution of funds by each party; 3) whether any contribution by one party constituted a gift to the others; 4) who paid taxes on the earnings from the account; and 5) the purpose for which the account was established.

The case law weighs heavily in favor of the judgment creditor. The first factor seems to be the most important. If both parties use the account for their mutual benefit, it does not really matter who put the money into the account. In order to overcome the presumption of donative intent, the debtor must satisfy at least a couple of the five factors above. They basically have to show exclusive control over the account.

This is a factual determination that can be shown through the use of bank statements, bank signature cards, canceled checks deposited into or drawn on the account, loan repayment coupons or other loan documents, payroll records, etc. Remember that the burden is on the debtor, so without strong documentary support, I would argue that they have not met their burden to overcome the creditor's presumption.

Wednesday, September 8, 2010

Florida Foreclosure Lawyer Financially Flush.

The owner of one of Florida's largest foreclosure firms made more than $17 million last year, not including the money he received from the sale of a related business that he started to provide support services to his law firm. That business sold for $93.5 million.

Click here for juicy details relating to the types of cars, houses, and boats that he owns.

Tuesday, September 7, 2010

Kane County Permanent Courtroom Change

Bankruptcy court in Kane County is switching rooms. Effective immediately, Judge Barbosa will now be sitting in courtroom 250 at the Kane County Courthouse, instead of courtroom 140.

All Kane County hearings should now be noticed for courtroom 250. All hearing times and the building address remain the same.