Tuesday, August 23, 2011

Adam R. Wirtz joins Dreyer, Foote, Streit, Furgason & Slocum, P.A.

My office is pleased to announce the hiring of Adam R. Wirtz, formerly of the Wirtz Law Offices, LLC in Naperville, as an associate at the firm.  Adam concentrates his practice in criminal defense, family law, and general civil litigation.  Adam will be integrating his current cases into our office, while also assisting with our existing practice.  Adam can now be reached at 630-897-8764 and awirtz@dreyerfoote.com.

Will Devin Hester testify regarding improper benefits received while at Miami?

Some of you may have heard about Nevin Shapiro, a University of Miami football booster and convicted Ponzi schemer.  He claims that he provided hundreds of thousands of dollars of impermissible benefits to UM football players over a 9 or 10 year period.  Then his $930 million Ponzi scheme blew up and his investment firm filed bankruptcy.

I have heard members of the national sports media speculate whether any NFL players will be sued by the bankruptcy trustee to recover any of this money.   It's always good to see bankruptcy litigation mentioned on ESPN, but it's not going to happen.   It may be possible for some football players to be sued, but it won't be Devin Hester or any other professional players.  The only football players at risk are those who received payments in the 90 days preceding the investment firm's bankruptcy filing last summer.  

These are interesting lawsuits.  A bankruptcy trustee can avoid a transfer made by the debtor if it is preferential to one creditor over the others.  The preference period is 90 days before the filing, unless the payment was made to an insider (family, business partner, etc.), then it is a one year look back.  In order to avoid the transfer, the trustee has to file an adversary proceeding against the creditor.  

There are several defenses to a preference action, none of which will apply to football players.  Valid defenses include when the payment was made in the normal course of business between the debtor and creditor and where the creditor provides "new value" to the debtor in the form of goods, services, or new credit.  

Depending on which side of the game you're on, the preference period seems either really long or really short.  This time, it seems extremely short considering all of the big time players that have come from Miami in the past 10 years.  The depositions in that case would be fantastic. I would love to examine Michael Irvin, Ray Lewis, Warren Sapp, etc. under oath concerning the night life and party scene in Miami while they were on the payroll.

Friday, August 19, 2011

There ain't no money in lawyerin'

The real money is in business.  Wheeling and dealing.  Don't get me wrong - plenty of lawyers make tons of money, but lawyering takes work.   Working day and night to beat deadlines and satisfy client demands.  Plus, there's only so many hours in the day to bill to your clients. Now that I think about it, billing by the hour is for fools.  

Take South Florida lawyer Bill Scherer for example.  He's got it figured out.  He's a businessman, and a shrewd one at that.  In 1992 Scherer signed a long term lease with Broward County for 200 parking spaces in a county garage next to the courthouse.  He pays $107,500 per year to lease the parking spaces.  

This week, due to a severe shortage of parking spaces for jurors and courthouse employees, Broward County officials voted to lease the parking spaces back from Mr. Scherer.  They are going to pay him $277,536 per year to use the parking spaces.  That's what I'm talking about!!  $170,000+ per year profit for spotting a deal and capitalizing on it.  I need to get out of the courthouse and into the business world.  

HERE's an article about the deal from the Florida Sun Sentinel.

Thursday, August 18, 2011

KCBA launches Lawyer in the Lobby program.

The Kane County Bar Association, with the assistance of the judiciary of the 16th Judicial Circuit, launched a new pro bono program called “Lawyer in the Lobby” in May. The program is designed to inform civil pro se litigants regarding their questions on the law and procedure. 

The program covers matters pending in the Kane County Courthouse (3rd Street, Geneva). KCBA attorney volunteers who have legal experience in small claims and eviction will provide this free service on Friday mornings between the hours of 9 a.m. and noon. Appointments are not necessary, but inquiries are limited to 15 minutes per person. 

Any lawyers who wish to volunteer are asked to contact Jan Wade, the Kane County Bar Association Executive Director, at director@kanecountybar.org or 630-762-1915.

Wednesday, August 17, 2011

FDCPA Update

Yesterday, I gave a very brief overview of the FDCPA.  I glossed over the prohibitions contained in the Act as I said they were common sense prohibitions that I didn't have time to analyze.  We'll it doesn't get any more common sense than this:  Don't kill people when trying to collect a debt.  First, dead people can't pay their bills.  Second, it may be an FDCPA violation.    

A story in today's Washington Post indicates that a man in Indonesia died after a "harsh interrogation" by a Citibank debt collector regarding an alleged $5,700 debt.  Indonesia is not covered by U.S. federal law, but if this would have happened in America, I'm pretty sure that there were probably a couple of FDCPA violations that occurred in that room before the guy keeled over.

This also reminds me of an old story from the Northern Law Blog vault.  Click HERE for the classic post about a wrongful death case filed by a widow against her late husband's mortgage lender for allegedly killing him with their harassing phone calls.

Westlaw's Headnote of the Day

We've come a long way, baby:

223 Intoxicating Liquors

223II Constitutionality of Acts and Ordinances

223k15 k. Licensing and Regulation.

A state statute forbidding the employment of women in any saloon, beer hall, barroom, theater, or other place of amusement where intoxicating liquors are sold as a beverage is a valid exercise of the police power of the state.  In re Considine, 83 F. 157 (C.C.D. Wash. 1897)

Tuesday, August 16, 2011

The Fair Debt Collection Practices Act

With statutory damages set at $1,000 per violation, plus actual damages and attorneys' fees, the Fair Debt Collection Practices Act ("FDCPA") should be required reading for all general practitioners.  The Act applies to anyone attempting to collect a consumer debt on behalf of another party.  The Act impacts mortgage foreclosures, residential evictions, repossessions, medical debt, and probably about 99% of the cases filed in small claims court.

The Act prohibits several dozen different abusive or deceptive tactics.  They are common sense prohibitions that I don't have time to get into.  Basically don't lie, don't harrass people, don't threaten something that you can't legally follow through on, and don't communicate details of the debt to third parties. But you should still read  the statute because there's a lot of other things that you probably would not have considered.

The more interesting aspects are what the Act requires you to do, not what it prohibits you from doing.  There are several requirements for debt collectors pursuing consumer debts, but I am just going to focus on the very first thing.  Within five days of the initial communication with a debtor, whether it be by phone, in writing, in person, or through a judicial pleading, you must send a written notice to the debtor containing the following information:
(1) the amount of the debt; 
(2) the name of the creditor to whom the debt is owed; 
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;   
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and   
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

Thorough practitioners should have a form letter containing these warnings that will be the initial communication to the debtor.  I have a form letter that I am willing to share.  Let me know if you want a copy.  Although the warnings can be given up to 5 days after the initial communication, it is advisable to make this letter the first communication.  That way you don't run in to timing problems and the debtor can't "misremember" or misconstrue the contents of a telephone conversation as a threat.

I have linked to the entire statute HERE in a pdf.  It is worth printing out and glancing at occasionally.  It is about 20 pages, but the sections are concise and easy to follow.  Like I said earlier, it applies to any consumer debt and the consequences for violation are severe.

Wednesday, August 10, 2011

Will County court records are online

The Will County Circuit Clerk is now offering basic access to its court files through its website.

Here is the link:

I just heard about this new feature, and have only done limited searching.  The website will give you only basic info, such as the next court date, etc.  But you still don't have access to the pleadings or past court orders.

Monday, August 8, 2011

At least it's not a Northern grad this time...

Although he's presumed innocent at this point, Attorney Jason Smiekel may be in a little bit of trouble.  He's been accused in a murder for hire plot.  Click HERE for full details from the McHenry County Blog, including a probable cause affidavit signed by an ATF agent and several pictures.