Let’s Get Political for a Moment: My Endorsements for the 2015 Nashville Elections

I stay away from politics. I make sure to always vote, but, aside from the occasional sign in my yard, I tend to read the news, pick who I think would do a good job (regardless of party affiliation), and go back home. I don’t even wear the “I Voted” sticker.

But, this year is a little different, because I personally know some candidates and really think they’d do a great job. (And, if you know me in real life, you know that I wouldn’t go to this trouble unless I was sincere.)

First Endorsement: Charles Robert Bone for Mayor. (Disclaimer: I work with CRB.) When Charles Robert first announced he was running for mayor, I hated the idea, but not for any good reason. Instead, because he’s one of the smartest, hardest working lawyers at our firm. Why should Nashville’s gain be my firm’s loss, right?

Here at the firm, when we have a complicated case that needs some strong, smart firepower, my practice group has always roped Charles Robert in. He’s a great lawyer, smart, practical, and a leader at our firm. Plus, he’s sincere, nice, and funny. He’s got a real “Nashville” vibe, and he’s the type of person I want representing my city as we make some tough decisions in the next few years. I’m voting for him.

Second endorsement: David Briley for Vice Mayor. You think you’re seeing a pattern here, don’t you? Yes, I work with David Briley. Again, if you know me, you know I don’t give compliments easily, but I think he’d be great in this position. Briley is a leader at our firm and helped guide the firm through a tough economy over the past few years–both by leading the firm through hard decisions in lean financial times and also winning really big cases.

Last year–here’s where I’m biased–he and I worked together on a case against a Fortune 100 company (and won), and I was impressed with his strategy, decorum, and intelligence. He’s a guy I want on my side.

Third endorsement: Bob Mendes for Metro Council at Large: Wow, another lawyer? You really think I’m biased now. But here’s a secret: I hate having cases with Mendes. He’s smart, analytical, and great at strategy. When I see that he’s on the other side, I know I have to bring my “A game.” That’s what he would bring to this office. He would go to sleep thinking about the city and wake up the next morning thinking about the city. He would be a great councilman.

My other endorsements: I like John Lasiter for Metro Council At Large. I think he has an interesting perspective, and he seems engaged with the city.

I also like Peter Westerholm and Anthony Davis. I’m not in either of these Metro Council Districts, but they both are smart, engaged incumbent leaders who seem to really be looking out for Nashville’s future.

Enforcement of Judgments on Out of State Debtors Made Easy: When the Debtor Comes to You

Four years ago, we talked about domestication of judgments. Long story short, a judgment awarded in Tennessee can only reach a debtor’s assets located inside the State of Tennessee. So, if you have a judgment against somebody who lives in Texas, you may have to file a second lawsuit in Texas to attach his assets.

But maybe not.

I mean, sure, if he owns land in Texas,  owns a car that’s registered in Texas, or has a million dollars in cash under his Texas bed, then your Tennessee judgment is not going to be effective to execute on those assets. To get those, you need to go through the domestication process, which results in your out of state judgment being recognized by that foreign state as a valid judgment for enforcement in that state.

But, here’s a trick: What if the debtor has all his assets in that foreign state, but he banks at a large bank with offices all over the country? And what if that bank has a branch in Tennessee? The answer is that you can levy on that bank account.

So, debtors with accounts at Wells Fargo and Bank of America, watch out.

Presenting for NACM on Buying and Selling Claims in Bankruptcy

If you’ve ever been a creditor in a large Bankruptcy Case, you’ve probably received some calls or letters, offering to buy your Bankruptcy Proof of Claim from you. Sounds like a great deal, right? Somebody is going to pay you money for a bad debt. What can go wrong?

On Friday, July 17, 2015, I am presenting an education session on “The Value of Selling Claims in Bankruptcy” for National Association of Credit Management. This is part of their National Communications Credit Group Annual Meeting, taking place in Nashville this year.

In my presentation, I’ll be talking about the issues surrounding claim buying and selling, and also all the reasons why somebody would want to pay you for a bankruptcy claim.

But, if you’re not attending, don’t worry. After the seminar, I’ll be posting some of the highlights from my materials.

A Filed, but Not Served Complaint, May Not Prevent the Statute of Limitations from Expiring under Rule 3

The Court of Appeals issued an interesting case yesterday to remind us all about the importance of prompt service of process. This case is Amresco Independence Funding, LLC v Renegate Mountain Golf Club, LLC (Tenn. Crt. Apps., Mar. 31, 2015, No. E2014-01160-COA-R3-CV), and the full text can be found here.

The basic facts are that the Plaintiff filed a collection lawsuit against Defendant, but did not obtain valid and timely service of process of the Complaint. Then, after the statute of limitations expired and after one year from the date that the original Summons was issued, the Defendant filed a Motion to Dismiss. In the Motion, the Defendant argued that any new Summons would not relate back to the Complaint filing date and, as a result, the lawsuit was too late.

This is a good argument. Under Tenn. Rule. Civ. P. 3:

If process remains unissued for 90 days or is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process or, if no process is issued, within one year of the filing of the complaint.

The Court of Appeals agreed with this analysis and upheld the dismissal.

So, as a rule of thumb, don’t think that because you filed your lawsuit that all your statute of limitations issues go away. Indeed, if you simply file the lawsuit and then don’t obtain service of process, your time-sensitive claims could potentially expire.

And this isn’t just a rule that penalizes lazy lawyers. I’ve filed lawsuits to satisfy deadlines, but then considered not serving the Summons because the parties were engaged in settlement talks or waiting for a sale or some other event to occur.

Under Rule 3, the mere filing of the lawsuit may not be enough to save your claims.

Beware Email Scams Targeting Lawyers: Tune in to My CLE and Save yourself $500,000

One of the reasons I have this blog is for people like you, potential client, to find me online and hire me for your Nashville and Tennessee legal needs. I cast a wide net and hope Google notices, and so it’s no surprise when I get calls from remote parts of the country–or world–asking me for help.

Many of the inquires I receive are not relevant–people looking to me to help them stop foreclosures. Many are potential scams from fake overseas clients. What I’ve noticed in the 5 years that I’ve kept this blog is the increasing sophistication of these scam client inquiries. No longer are they in broken English and as transparent as a glass of water.

Nowadays, the scammers are pretending to be part of real companies (or elaborately created fake companies), in deals that are designed to trick and trap lawyers into falling victim and processing forged cashiers checks.

If you think this can’t happen to you, as a simple Nashville lawyer, well, I’ve got just the CLE for you.

Working with OutkickCLE (the lawyer CLE arm of the Clay Travis sports media empire), I’ve presented a course called Most Distinguished Sir or Madam: This CLE Will Make You Rich!  In the CLE, I discuss actual e-mail scam referrals that I’ve received, the red flags I’ve learned to look for in dealing with these scammer clients, and what to do when a suspicious client emails you.

It’s a fun CLE, discussing the history of these scams, but it’s also a dead serious CLE, discussing how these scammers have stepped up their game, to the point to where lawyers are increasingly falling for the tricks. This may be the most useful CLE you’ve listened to in years.

Tennessee Court of Appeals recites law on Equitable Estoppel

The Tennessee Court of Appeals issued a new opinion, Preston McNees Specialty Woodworking, Inc. v. The Daniel Co., Inc., on February 13, 2015, which I’m citing here because it includes a good review of the law of equitable estoppel.

In the case, a subcontractor alleged that a general contractor was equitably estopped from denying payment of various change orders, when the general contractor waiting until the work was completed to provide notice that the extra charges would be denied.

The Court held that doctrine of equitable estoppel requires evidence of the following elements with respect to the party against whom estoppel is asserted:

  1. Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert;
  2. Intention, or at least expectation that such conduct shall be acted upon by the other party; and
  3. Knowledge, actual or constructive of the real facts.

Consumer Credit Union v. Hite, 801 S.W.2d 822, 825 (Tenn. Ct. App. 1990).

Additionally, the Court held, equitable estoppel also requires the following elements with respect to the party asserting estoppel:

  1. Lack of knowledge and of the means of knowledge of the truth as to the facts in question;
  2. Reliance upon the conduct of the party estopped; and
  3. Action based thereon of such a character as to change his position prejudicially.

This is a great review of the law, as this issues comes up. Ultimately, this Court ruled that there was no reliance because the contract at issue was clear.