Codilis & Associates, P.C. (located in Burr Ridge) is looking to hire a full time associate attorney. The law firm concentrates in representing creditor rights in Foreclosure, Bankruptcy and Real Estate matters. Three - Five Years related Foreclosure experience preferred as well as excellent organizational and attention to detail strengths. Responsibilities will include court calls (am and pm) as well as document review. Full benefits package including medical, dental, and life insurance as well as a 401k plan and time off benefits. Interested candidates should e-mail resumes including salary requirements to HR@il.cslegal.com.
The law blog of Aurora attorney Mike Huseman, featuring practice updates authored by Northern Illinois University College of Law alumni, as well as guest contributions from non-NIU lawyers and law students.
Tuesday, April 30, 2013
Tuesday, April 23, 2013
Security for Costs
Recently, I was in court on the trial date for what I thought was going to be a routine forcible entry and detainer action. I was representing an out of state property owner who was seeking to evict unlawful occupants from his newly purchased home in the suburbs. Opposing counsel failed to show up but had the matter covered by another attorney. Since counsel and her clients were not present, the attorney covering for her asked for a continuance which was denied. When we stepped up, I called my only witness, the property owner, and then I got all the relevant documents into evidence. I have done this numerous and I thought I was going to get an order of possession. However, the attorney proceeded to cross examine my witness and asked him to identify his residence. As stated before, the client was from out of state, but I did not think that was going to be a problem. After identifying his address, the attorney moved to dismiss my case. As support for his motion, he cited 735 ILCS 5/5-101-103. Under these sections, an out of state Plaintiff is required to post a security for costs. This is a very archaic part of the Code of Civil Procedure and it is very rarely used anymore. In fact, the only other place I have seen a document that purports to be a “security for costs” is on the third floor of Dupage Judicial Center. They have an old artifact framed and signed by Abraham Lincoln whereby he was posting security for an out of state client. This rule is a typical example of a rule that once had a relevant purpose but that has now outlived its usefulness. At the time of my trial, I had never heard of this rule. The judge had never heard of it either, and he quickly had to pull it out his copy of the Code and look over the statute. I later learned more about this statute and its application in Illinois case law, but at the time I had no clue how to object to this motion. In fact, according to the case law that I later read, the motion was not timely brought to the court and was thus, not enforceable. But, just from the plain language of the statute the judge had to either dismiss my case or allow me a continuance to file the relevant paperwork. The statute reads as follows:
§ 5-101. Security for costs. In all actions in any court on official bonds for the use of any person, actions on the bonds of executors, administrators or guardians, qui tam actions, actions on a penal statute, and in all civil actions, where the plaintiff, or person for whose use an action is to be commenced, is not a resident of this State, the plaintiff, or person for whose use the action is to be commenced, shall, before he or she institutes such action, file, or cause to be filed, with the clerk of the court in which the action is to be commenced, security for costs, substantially in the following form:
A B v. C D--(Title of court.)
I, (E.F.) enter myself security for all costs which may accrue in the above entitled action.
Dated this .... day of ...., ....
§ 5-102. Approval--Effect of bond. Such instrument shall be signed by some responsible person, being a resident of this State, and be approved by the clerk, and shall bind such person to pay all costs which may accrue in such action, either to the opposing party or to any of the officers of the court in which the action is commenced, or to which it is removed by change of place of trial or appeal.
§ 5-103. Dismissal for want of security. If any such action is commenced without filing such written instrument, the court, on motion, shall dismiss the same, and the attorney of the plaintiff shall pay all costs accruing thereon, unless the security for costs is filed within such time as is allowed by the court, and when so filed it shall relate back to the commencement of the action; the right to require security for costs shall not be waived by any proceeding in the action.
After reading the case law, I found out some important things about this statute. First, a motion to dismiss based on these grounds must be brought at the earliest possible moment. A court should not enforce such a motion when it is brought right before trial. Second, the form identified above in section 5-101 is sufficient and no bond should be required. Basically, the attorney or any other responsible adult in Illinois that is not a party to the case can post security for costs. Third, although still enforced, the court should grant leeway to a party that substantially conforms to the statute and should give leave to the out of state party to file its security for costs. Such filing relates back to the filing of the case. See LEASE PARTNERS CORP. v. R & J PHARMACIES, 768 N.E.2d 54, 329 Ill. App.3d 69, 263 Ill.Dec. 294 (2002).
Thursday, April 11, 2013
New Law Seeks to Raise Minimum Injury Insurance Limits
The State of Illinois is currently debating a bill which would effectively increase the minimum insurance coverage for bodily injury required of drivers in Illinois. Currently, the minimum coverage necessary to keep a driver “legal” is $20,000 per person, $40,000 per occurrence. Senate Bill 1898 would raise the minimum limits to $50,000 per person, $100,000 per occurrence. The bill would also raise the minimum coverage for the destruction of property from $15,000 to $40,000.
Where does Illinois currently stand amongst the 50 states you ask? Essentially in the middle. However, passage of this law would put Illinois at #1 with Alaska, Maine, and Wisconsin, each having minimums of $50,000/$100,000. Piece of advice, be careful driving in Florida or Ohio. The minimum to keep drivers in those states legal is $10,000 and $12,500 respectively. The most common minimum policy limits (shared by 26 of the 50 states) is $25,000 per person, $50,000 per occurrence.
The best advice is to never rely upon other drivers carrying enough (or any) insurance. Always make sure that you carry uninsured and underinsured motorist coverage. Make sure to purchase a policy with the highest bodily injury limits you can afford. The most common policy in Illinois is typically $100,000 per person, $300,000 per occurrence. While the cost of uninsured and underinsured coverage is relatively minimal, the amount of money it could save you down the line could be substantial.
Saturday, April 6, 2013
Sometimes you want the public defender.
March 18, 2013 was the 50th anniversary of Gideon v. Wainwright, in which the U.S. Supreme Court unanimously ruled that states are required under the 14th Amendment to provide counsel to criminal defendants who cannot afford a private attorney. I don't practice criminal law and I never really gave that case much thought after law school, but several news items over the past couple of weeks have made me think about it more.
I read an article last week that praised the Gideon ruling, but at the same time lamented the sad state of most public defenders' offices. The lawyers are overworked, underpaid, and sometimes incompetent, the article alleged. While they may be overworked and underpaid, it is completely unfair to categorize public defenders as incompetent.
Tom McCullough is a public defender. He is the public defender of DeKalb County. He was formerly the Kane County public defender. He has handled some of the highest profile murder cases in the Fox Valley area over the past several decades.
Tom McCullough is a heck of a lawyer. Recently, he represented William Curl, who was arrested for the murder of NIU student Toni Keller. That case was all over the news last week when Mr. Curl entered a guilty plea in exchange for a 37 year sentence. Since he has already served nearly three years, he will be released in approximately 34 years.
Following the entry of the plea, several lawyers involved in the case gave interviews on the courthouse steps out in Sycamore. I have placed a link below to Tom McCullough's interview. It's only about three minutes long and it's worth it.
Here is the link to the interview: "Public Defender Tom McCullough Talks Curl Plea Deal"
When I saw that interview, I immediately thought about that article that I mentioned earlier. I also thought about a lot of other interviews I saw last summer by private lawyers. Anybody who wouldn't want Tom McCullough as their lawyer just because he's a public defender must be crazy. Just watch the interview. He's as cool as they come.
Just think what could happen if you hired a private lawyer. You might get this guy:
Wednesday, April 3, 2013
Is Lassie Family or Property?
Everyone knows that feeling of a long day that sometimes brings you home in a funk. You come home expecting to sit on the couch, do a little mindless TV watching, and then retire to bed. However, something changes your plan and at the same time, your entire outlook on the evening. The look of an excited and happy dog wagging his or her tail and waiting and ready to greet you and make all of your troubles go away.
Pets have become intertwined in the fabric of our lives. For most people, they are family members. They depend on us for food and shelter and in return, give us unconditional love. When we lose a pet to illness or accident, it is only natural that most people go through a grieving process similar to the loss of a family member or friend. In the case of an accident caused by another’s negligence, what rights does a pet owner have to recover damages for not only the value of the pet, but the medical bills and loss of companionship that the owner suffers? For many years, the answer was the actual true market value of the pet. However, many jurisdictions, including Illinois, have moved toward a more progressive understanding and approach to measuring the damages associated with injury or loss of a pet.
The most recent Illinois case to examine the treatment of damages associated with injury or loss of a pet was Leith v. Frost, 387 Ill.App.3d 430 (4th Dist. 2008). In Leith, a couple filed suit for serious injuries sustained by their dachshund, Molly. The dachshund was attacked by a neighbor’s Siberian husky, Cosmo. While the couple sought payment of $4,784 in veterinary expenses for Molly, Cosmo’s owner argued that the couple was only entitled to the fair market value of Molly, $200. The trial court agreed and limited damages to $200 holding that under the law, a dog is property and not person.
The Fourth District Appellate Court disagreed, finding that it was reasonable to expect pet owners to spend any amount necessary to cure a family member. Said the court:
It is common knowledge that people are prepared to make great sacrifices for the well-being and continued existence of their household pets, to which they have become deeply attached. They feel a moral obligation toward these animals. Emotionally, they have no choice but to lay out great expenditures when these animals suffer a serious physical injury.
While agreeing that pets are considered personal property, the court equated the value of a pet as akin to that of a family heirloom, photograph, or trophy (i.e. priceless). In doing so, the court held that damages should not be limited to something as nominal as fair market value, but that the owner should be able to provide evidence of what the pet’s value was to him or her.
In Leith, the pet owner only sought payment of the veterinary expense as Molly ultimately survived. Thus, the court did not address whether a pet owner should be entitled to damages for the loss of a pet. More specifically, should a pet owner whose pet dies as a result of the negligence of another be entitled to damages commonly associated with the wrongful death of a person, i.e. loss of companionship, loss of society? This is an area of law that will continue to develop and perhaps one day will more closely resemble how pets have become true family members.
Are pets family members? Should a pet owner be entitled to damages for the loss of their pet and the emotional suffering such a loss inevitably engenders? Any and all comments or questions regarding this topic are greatly welcome.
Tuesday, April 2, 2013
U.S. Trustee Suspends Debtor Audits
According to a report on DowJones.com, the U.S Trustee ("UST"), the division of the Justice Department that monitors all bankruptcy cases, has indefinitely suspended its auditing program due to budgetary constraints. The BAPCPA amendments of 2005 authorized the UST to audit 1 out of every 250 consumer bankruptcy cases filed in this country.
This means several different things. For debtors, it means less oversight, intrusion, and hassles from the UST. It will reduce work and expenses for debtors' attorneys, most of whom work for a flat fee whether they are audited or not. It will also let debtors sleep easier at night knowing that it is more likely that they will get their discharge without having to jump through the hoops of an audit.
For creditors, it might mean that debtors will become more brazen with their petitions. If a debtor knows that there is no risk of an audit, he or she might take chances in filing a case that may not have been filed in the past. Creditors should begin to review debtors' petitions for accuracy more so than ever. There are several different ways that creditors can object to debtors' cases, so sharp-eyed creditors' lawyers should analyze all bankruptcy petitions for truthfulness and accuracy.
Please give me a call if you have any questions about the bankruptcy process, whether you are considering bankruptcy for yourself or if someone who owes you money has recently filed bankruptcy.
Monday, April 1, 2013
Can Macy's be forced to honor this advertisement?
Macy's mailed an advertisement this month that listed a $1,500 sterling silver necklace for $47. The list price was supposed to be $479, but the advertisement contained a typo that listed the necklace for $47.
Apparently, several customers did get this "super buy" because when Robert Bernard arrived at a Macy's location in Plano, Texas, he was told that they were sold out of the necklace. The teller did offer to have the necklace shipped to Mr. Bernard's house though. He paid for the necklace at the register and was told that it would be shipped shortly. Before the necklace arrived, however, Mr. Bernard received a voice mail from Macy's telling him that the advertisement had been a mistake and that his order had been cancelled.
Let's analyze this situation from the perspective of a breach of contract case (in Illinois). In order to form a contract, there must be an offer and an acceptance. Ordinarily, a newspaper advertisement, whether it contains an erroneous purchase price or not, is not an offer that can be accepted to form a contract. The advertisement is construed by the courts of Illinois as an invitation to the general public to come in and make an offer. It would then be up to the store to accept the offer. At that point, you'd have a contract. See, for instance, O'Keefe v. Lee Calan Imports, Inc., 128 Ill.App.2d 410 (1st Dist. 1970).
So, not everyone who received this advertising circular from Macy's can sue them for a $47 necklace. Mr. Bernard, however, might actually have a case. Mr. Bernard did make an offer in response to the advertisement. Macy's, through its agent (the store clerk), accepted his offer. He fully performed by paying $47 on his credit card. He is entitled to full performance of the contract by Macy's. In my opinion, Macy's breached the contract by calling and telling him that his "order had been cancelled."
I'm sure some of the brilliant Blog followers will be able to argue the other side of this case. Who wants to defend Macy's? Who wants to tell me why this was not a valid contract? Who wants to make Professors Gaebler and Reynolds proud???????? Any and all comments would be appreciated.
Subscribe to: Posts (Atom)