Once the funds are paid out, though, I tell my clients to keep their fingers crossed for a bit more time–at least until the end of the Bankruptcy Code’s “preference period.” Until then, a Bankruptcy Trustee can “recover” payments received by creditors in the 90 days before a bankruptcy case is filed.
The question I often get is this: Does the 90 day period start when the Clerk receives the funds or when the Clerk disburses the funds?
An August 19, 2022 Minnesota Bankruptcy Court opinion (In re Holbert, 643 B.R. 332 (Bankr. D. Minn. 2022))(from the Eight Circuit) presents pretty compelling reasoning that the clock starts ticking upon the Clerk’s receipt of the funds.
Specifically, this Court held that the “transfer” (per 11 U.S.C. § 547(b)) for property held in custodia legis occurs when the property is placed in escrow / deposited with the court.
It will always be frustrating for a creditor to see the money just sitting there, in the court coffers, for 20 days. The silver lining, of course, is that the preference clock also appears to be burning off during that period.
A legal conference where, at the end, you were sad that it didn’t last longer. Have you ever heard that?
You’ve probably never been to ClioCon then.
Clio is a cloud-based legal practice management platform. With more than a decade of constant feature updates and welcoming third-party app integrations, Clio is designed to be a “one-stop-solution” for running a law firm. Billing. Document management and automation. Intake and client relationship management. Calendaring.
Basically, for everything a lawyer does during the day, Clio’s goal is to make it easier and more efficient. If they don’t offer a solution, let them know, and they’ll create one. One legal tech commentator called their culture “a cult of innovation.”
You probably think this is a paid post. (I mean, who shows this sort of rabid exuberance for legal practice management solutions?)
There are lots of law practice management tools out there, but none have the branding or message that these guys do (or care to have it). Clio casts itself and its users as rebels and disruptors. Clio knows its core audience, and ClioCon is a concert where they play the hits.
I’m telling you, Clio is a vibe.
In his closing address, Clio CEO Jack Newton said attendees were part of a “tribe.” “We are part of a big community here with a common goal of transforming the legal experience for all,” he said.
Legal tech writer Bob Ambrogi wrote this about the 2022 event: “It is no exaggeration to say that this is a conference in which it feels as if every single person is there because they are deeply committed to improving the practice of law and the delivery of legal services through the better use of technology and the innovation of their practices.”
Clio and their some 200 employees were there, at every turn, offering impromptu training sessions, directions (ugh, Opryland Hotel), and friendly smiles.
It was like hanging out with 200 people who really wanted you to be better at your law job, but also were your new best friends, and, occasionally, a life coach.
Part instructional, part sales-pitch, part motivational/self-help pep talk, it was hard not to leave ClioCon fired up about being a better lawyer.
(I actually signed up with FOUR new technology service vendors after leaving.)
The theme this year was, essentially, the world political and economic landscape is a mess, only getting worse, and we (and our clients) are in for some tough times in 2023. What can we, as lawyers, do to prepare and to provide better service to our clients?
It’s different than a typical legal conference because of the diversity of attendees. People come from all over. Most are lawyers, but some are administrative staff and other legal professionals. Many attendees are neither, but work on innovations in legal technology and processes.
Nevertheless, across the board, the common theme was that we (the Clio staff, the attendees, all of us in the room) are collectively collaborating on something different, rebellious, innovative…and all with the goal to provide awesome service to clients.
Every conversation I had–walking all over that awful hotel; waiting for sessions to start; meals–the topic was “how does your firm [insert some technical/practical law practice task].” “What works/What doesn’t.” People were there for one reason: To be better lawyers.
Who can’t help but get fired up about that?
I’ve attended 3 ClioCons now (the first two were remote, due to the pandemic).
My first year, it felt like we all were in on a big secret. In the early COVID world, it felt scandalous to openly talk about things like virtual law firms, document and client communication automation, and fully cloud-based systems. This was a crowd that held zero regard for “The Way Things Have Always Been Done.”
It felt awesome and liberating to not have a Managing Partner hiding around the corner, waiting to tell you that “we’ll form a committee to consider your idea and tell you ‘No’ in 6 months.”
In the past few years, the rest of the industry has come a long way, but they’re still far behind the types of things that are being discussed as a matter-of-fact at ClioCon.
What I’m saying is this: Find your tribe. If you care about things like disrupting the status quo in the legal industry and ways to be a better (and happier) lawyer, come to 2023 ClioCon in Nashville (yes, again) on October 9-10.
Neither Dell, Microsoft Support, or frantic prayers could save the day. My working laptop was somehow connected to an expired domain (my expired firm), and it was locked shut. (“A very expensive door-stop,” the nice lady at Dell Support in Texas unambiguously explained.)
After spending 5-6 desperate hours on the phone on a gorgeous early-fall day, I had cobbled together the diagnosis: This is exactly what the system is supposed to do in a situation like this; and The remedy was to wipe the computer and start fresh.
This was bad news.
If you’ve ever sat next to me at an event or at a cocktail hour, you know I like to talk in colloquialisms. For me, it’s a way to survive small talk, but also a way to be authentic and also contextually appropriate (i.e. to make a joke).
Maybe the best response from me would be a simple “I’m fine, how are you?” But, sometimes, why not be honest and funny (especially if you are one of the rare Nashville attorneys who has won a city-wide award for their sense of humor)?
If done well, the response is short, funny, but also brutally (and subtly) honest.
While doing the rounds on the 2021 lawyer holiday party circuit, lots of people asked if I liked my small law practice. My response was generally the same: “It’s the best job on earth, and it’s also the worst job on earth. But never in the middle. Sometimes, I miss the middle.”
It was quick, easy, and honest. For more than a decade, at somebody else’s firm, I spent a lot of years in the middle. I billed my hours and won my cases, but I didn’t have any say in the big (or the day-to-day) firm issues. It was frustrating and unfulfilling, but also comfortable and familiar and easy.
Plus, on any day when my computer didn’t work, I had somebody to call who spent their Sunday figuring it out.
In fact, that’s something I told the Tennessee Bar Association’s Sidebar Podcast last year: “My job used to be to show up, do awesome legal work, and write down my time. Now, my job is to do all that, and also take out the garbage.”
Back to the laptop. In the end, let’s be clear: It all got sorted out.
My legal tech “committee of one” had made the right choices about Clio (a cloud based practice management system), NetDocuments (cloud based documents), and a redundant Microsoft OneDrive backup. Plus, I have a backup computer (“Dynamite”) that is fully functional and has been promoted to first chair.
Other than the hassle, wasted time, and the year of my life that the stress cost me, all ended fine.
Last year, after using my “best job, worst job” line at a holiday party, I got a text the next day, from a managing partner at a local Big Law Firm who I had talked to. Maybe I wanted to interview with them and cut out all the hassle of running my own thing, he asked.
All he had heard was the “worst” part, I guess. It was awkward and awful responding (and I made sure to avoid him at the next holiday party), but I had to be honest: “Hey, thanks and I may take you up on that someday, but I’ve had a long stretch where it’s been the ‘best job’ and I’m going to ride this for a while.”
There’s not really a point here, other than to say that you should be sure to back up your documents in multiple places. And, also, that life is too short to live in the middle. And, finally, not to be too braggy, but small law firm life really is the best.
In July, I wrote about a July 2022 Court of Appeals opinion holding that even a defective foreclosure sale conveys valid title to real property. That’s because Tenn. Code Ann. §§ 35-5-106 and 35-5-107 expressly say that title is not impacted by a defective sale and, instead, the foreclosing trustee is liable for monetary damages.
He was talking about Terry Case v. Wilmington Tr., N.A. as Tr. for Tr. MFRA 2014-2, No. E202100378COAR3CV, 2022 WL 2313548 (Tenn. Ct. App. June 28, 2022)– issued less than a month earlier–which held (sort of) exactly the opposite: “[A] trustee’s mere failure to comply with the terms of a deed of trust will render the foreclosure sale invalid.” Id. at *8.
How does the law reconcile these drastically different outcomes, based on the same wrongful foreclosure allegations?
Tennessee is a non-judicial foreclosure state, but don’t be lulled into a sense that foreclosures are simple (i.e. just “paperwork”). Instead, a foreclosing lender must simultaneously adhere to two separate processes, one of which is found in Tennessee statutes and the other in the underlying deed of trust.
Sometimes, they match; sometimes, they don’t.
If the lender doesn’t comply with any of the requirements of both tracks in full, though, this developing caselaw imposes drastically different remedies for non-compliance. Fail to satisfy the statutes? No big deal. Fail to satisfy the deed of trust? Here’s a nuclear bomb to your title.
Needless to say, this is confusing to creditors, borrowers, and buyers at foreclosure sales.
The plaintiff in the June 2022 case has filed an Application for Permission to Appeal to the Supreme Court (a full copy is attached below), seeking clarification on the splintered issues of law surrounding wrongful foreclosure claims. The Application opens with a direct message: “Tennessee wrongful foreclosure law is in a state of disarray.”
On behalf of the Tennessee Bankers Association and the Tennessee Mortgage Bankers Association, my office filed an Amicus Brief in support of the request to have the Supreme Court step in (also below).
This is a big deal. If this caselaw stands, title to foreclosed real properties will remain clouded until the wrongful foreclosure claims expire (6 years from the sale date). And, sure, a title company can vet the sale process, but title companies don’t like any risk, no matter how small.
This will render post-foreclosure title completely uninsurable. This isn’t good for anybody. Borrowers, lenders, buyers–everybody loses here.
That’s partially because the bankers that I deal with are in “special assets” or are the bank’s general counsel.
Long story short, they aren’t the ones at the ribbon-cutting ceremony for the expensive new restaurant; nope, my clients are the ones who get called in at the end, when the loan has gone bad and we’re figuring out what to do with used restaurant equipment. My clients always notice the storm clouds on the horizon.
With that in mind, for more than a year, they’ve been predicting a tidal wave of commercial and consumer loan defaults, followed by a spike in foreclosures.
And, generally, they’ve been wrong.
In Tennessee, one recent study showed that–to date–there have only been 3,316 foreclosure sale notices published (state-wide) in 2022. That sounds like a lot, but it’s less than a third of what we had in 2017 (10,810) and 2018 (11,711).
In 2022, the most sale notices have been published in Shelby County (496), followed by Hamilton County (304), Davidson County (271), and Knox County (223). Honorable mention to Williamson County (153) and Montgomery County (132).
The 3,316 figure for 2022 is an increase from 2021 (2,169). These drop aren’t entirely COVID driven, as Tennessee had just 5,982 sale notices published in the pre-pandemic glory days of 2019.
That low volume in 2019-2020 was the result of a number of factors, including COVID-related forbearances, sky-rocketing property values, and low interest rates. And, as you know, all of those factors are disappearing.
(Side-note: We can’t be sure about COVID, of course, but I’m pretty sure we won’t see mortgage rates in the 2’s and 3’s for a very long time.)
In the end, here’s where the bankers are probably right: There’s a backlog of foreclosures, and the crush is coming soon. The bankers are correct that the sky is falling; their timing was just off by a year.
Despite all the doom and gloom predictions, foreclosures haven’t skyrocketed in 2022.
Having said that, in the Middle Tennessee area, there remains a surprising amount of interest (and money) in the foreclosures that do happen. In June, I wrote about four foreclosure sales that were pending and, for every single one, at least 10 people showed up and, in the end, I had excess proceeds (meaning my lender client got paid and had money left over).
Long story short, the days of reading a foreclosure sale notice to nobody on the courthouse steps are, at least temporarily, over.
Based on the photos pulled from an old Loopnet listing, it’s right in the “off-interstate” commercial district, behind Bojangles Chicken (please note: my legal description, not these photos, controls what the buyer is buying).
At one point, the owner planned to build and operate a Taco John’s restaurant on the site. A complicated Chapter 11 later, however, and this commercial property is back on selling block.
Let me know if you would like additional information on this. I am the attorney for a creditor involved, and, as a result, I will be limited in what information and guidance that I can provide.
As with all distressed real estate sales, buyer beware, and hire a lawyer.
I had never met Bill Young, not until a September 2016 Chancery Court court docket, which–coincidentally–was his first ever court docket as a judge. And my case was the first case heard that day.
I can’t remember the exact issue, but I remember that, pretty quickly, I won the hearing. He ruled in my favor and asked me to prepare the Order. All good, right?
I have a thing I do when I win in Court. I leave the courtroom as soon as possible. Nothing good comes from lingering in court after you win. I don’t need judges reconsidering, or listening to more argument, or some surprise development.
I win. I thank the judge. Then I leave court.
But, that day, as I was leaving–in fact, I can still picture my hand on the big swinging door in Part II of Chancery Court–the Big Firm Lawyer who I beat was still arguing his case. And, worse, this new judge was listening.
So, I went back to counsel’s table, and I defended the logic of the original decision, and, ultimately, I won that hearing (and then left as soon as possible).
But, I also remember thinking “I’m not so sure about this new judge.“
As a litigator, my entire job depends on the quality of the judges I appear in front of. With any judge, I watch closely and form opinions about how they handle matters in front of them. Are they prepared? Are they respectful? Are they decisive? Are they smart? And, to a larger degree than is fair, did they agree with me? All very relevant factors to my job and my clients.
Because we had such little Chancery Court judicial turnover in Davidson County, I watched Chancellor Young very closely over those first months.
I’ll cut to the chase. Despite that early skepticism, I really, really enjoyed practicing in front of him during his time on the bench. I came to realize that his demeanor that first day wasn’t indecisiveness; it was a sincere desire to get it right and to make sure that both sides were fully heard.
In fact, the highest compliment I can give any judge is that I respect and trust them, no matter how they rule in my cases. That’s what I have said for years about Chancellors McCoy and Lyle–I don’t always win in front of them, but I trust them. It’s a compliment that I give begrudgingly, after they have earned it after doing good work as a judge.
I quickly felt that way about Bill Young. In fact, my two most vivid memories from court appearances in 2017 were two losses–both in front of Chancellor Young. And I respected both opinions. (As a disclaimer, however, I could argue both cases sitting here today and still feel like I had the better argument on both.)
What’s my point? Politics in this country are more divisive than they’ve been at any point in my lifetime. This divisiveness–bordering on spitefulness–has seeped into Tennessee politics. And I hate that.
Through its work and policy decisions, the Tennessee Attorney General plays a big role in many of those political decisions. When I look at the list of candidates, I see a number of “political” candidates, a few with extreme ideological backgrounds.
I don’t want them to be the next Attorney General. Our State deserves somebody who is cautious, deliberate, smart, and understands the value in making everybody in the state feel heard.
It’s an important decision that will impact the lives of Tennesseans for years to come. You can learn more about the applicants here, and all interviews are open to the public and will be livestreamed to the TNCourts YouTube page.
Everything that I have seen from Bill Young makes me think he’d do a great job as Attorney General for all of the people of the State of Tennessee.
The court cases where attorneys sue clients for unpaid legal fees always get my attention.
As an attorney who bills clients for my work and expects every client to pay every penny, I’m generally curious about what went wrong.
There are unhappy clients. Unhappy attorneys. Bills that are too high, or too late, or for work that made the client unhappy. When attorney-client relationships go bad, there’s always a lesson to be learned.
I won’t cover them all, but I will discuss one creditor’s rights high-point: When does a breach of contract occur?
Per this opinion, the six-year statute of limitations at Tenn. Code Ann. 28-3-109(a)(3) is calculated from the “termination of the attorney-client relationship,” and not from the date of the unpaid individual invoices.
The Court wrote that contracts can be “severable” or “entire,” with the relevant statute of limitation depending on the nature of the contract. Since the work at issue related to the same general engagement and the attorney’s work “would be continuously rendered over a period of time,” then, the attorney’s work was “entire.” As a result, “the statute of limitations begins to run only on the completion of such legal services” (or upon termination of the attorney’s work).
Here, the attorney filed the lawsuit (barely) within 6 years from the termination, but only after $136,283 in unpaid invoices had accumulated in the preceding 10 months (with many or most of those invoices coming due and unpaid longer than 6 years prior).
Honestly, I’d have thought that the statute would have run on some of those early invoices, but that the creditor would have had valid claims on the invoices that had gone into default within 6 years. Under this case, I would have been wrong.
Breaches, defaults, and calculating the statute of limitations isn’t as easy as you’d think. Remember this 2019 post about a debtor who didn’t make a payment for 8.5 years, but the Court found that each installment missed was an independent cause of action, resulting in a new, later statute of limitations for each new installment? I was also wrong about that one, because (as I wrote back then) “you’d think a six year old, long defaulted debt would have expired, well, six years from the default.”
To refresh your memory, debtor entered into a mortgage (final maturity date: February 1, 2021), and defaulted in 2008, but bank waited until 2016 to declare default and until 2017 to file the lawsuit.
Using the reasoning of this new case, could the Bank simply have argued that: (i) the 15 year mortgage is one, continuous debt; (ii) thus, the individual installment payments are payments on that debt and not severable obligations; (iii) and, as a result, the real statute of limitations on the failure to pay the 2008 installment payments didn’t start to run until the final maturity date on February 1, 2021?
The answer is, most likely, that the attorney’s future performance of services is indefinite and any invoices are merely progress billings toward that larger “entire” engagement, which is unlike a bank debt, which has definite and exact terms for the repayment. Having said that, though, a smart lawyer will have ample case citations to argue either direction.
In the end, I have two take-aways: (a) determining the date of breach is harder than you’d think; and (b) when in doubt, file your lawsuit sooner, rather than later.
After 2.5 years of not catching COVID, I began to think I was special. That, maybe, I had a rare, super-human immunity. That, at some point, future scientists would ask to study my blood to cure unknown diseases.
But, last Sunday, I woke up feeling terrible. My Sunday morning COVID test was negative, so I assumed I’d caught a summer cold.
After 2.5 years of wearing masks, avoiding crowds, and, generally, being really safe, I had hardly gotten sick and, maybe, this is what a cold feels like.
Reality hit two days later, when–still sick–I took another COVID test. And then another. I was 2 for 2 positive.
And I knew that I caught COVID in court.
My last big, pre-COVID night out on the town was a Friday night, February 28, 2020, the week before COVID hit. We went to Cross-Eyed Critters, the best karaoke spot in Nashville. It was the unofficial after-party for our kids’ Parent-Teacher fundraiser, and it was a night for the ages. In retrospect, it was also a post-COVID nightmare, with close talking, jam-packed seating, and no ventilation.
It was also the last time we’ve been in that type of crowd in the past 2.5 years. Early COVID was no joke, and we took it seriously. No more football games, concerts, restaurants, or crowded karaoke for us.
If we didn’t have to leave our house, we didn’t. And, to this day, we still don’t.
The biggest COVID risk for our family has always been me. I’m a lawyer (as you know), and my schedule isn’t always up to me. Part of a lawyer’s job is doing whatever is needed to represent their client, and I take that responsibility very seriously.
But, despite all the law articles about the Future of the Law, by July 2021, the future was trending back to “the way things have always been done.”
As Nashville lawyer Daniel Horwitz tweeted, “If you thought that we were at risk of staying in a quasi-21st century state of affairs—rather than instantly reverting back to the way law was practiced when people rode horses to court—I assure you, yours fears were never founded.”
And that’s, pretty much, where we find ourselves in July 2022.
It’s a shame, really, because so much of the technology, innovation, and streamlining that we did in response to COVID shouldn’t have been a stop-gap, it should have been permanent.
Those measures didn’t “work” simply because we all weren’t coming down with COVID; they worked because they they were keeping lawyers safe and, also, made the system faster, more efficient, and less expensive.
In a system based entirely on precedent, this wasn’t a surprise; I saw this all happening in November 2020: “8 months in, I haven’t yet seen the more comprehensive changes to court dockets and settings that I had expected. Instead, it’s been a little bit here, gauge the reaction, and then a little bit less in response. In the end, the court system seems to be only making minor tweaks to the ‘usual way of doing things,’ rather than embracing innovative models that could result in future improvements.”
Back then, it felt like we were missing a chance to really make things better. In retrospect, we absolutely did.
Going to court in modern downtown Nashville is a huge pain in the neck. Aside from the unbearable traffic, pedestrian congestion, beer trucks, and construction blockages, you also have to deal with expensive parking, onerous security, and, this time of year, southern heat.
Some matters and arguments may justify in-person hearings. “Bet the company” arguments? Custody battles? Life and liberty at stake? Sure.
The day I caught COVID, I was in court on a heavy docket, opposing a pro se hand-written nonsense Motion (seriously, a piece of paper with a frowny-face would have had more factual or legal basis than what I was dealing with). It was one of the busiest days in Davidson County that I’d seen in years, as I tweeted an hour into my wait:
An hour later, I was still waiting:
My pro se defendant never even showed up, so I ended up winning, but I also sat in a busy courtroom from 8:30 to about noon, just watching other cases (big and small) get argued and responding to emails.
I’m not mad at the Judge on my matter (who is awesome); in fact, when my case was called, he apologized and I assured him that “somebody is last on every docket.” It’s part of being a litigator, right? (Plus, I get to bill for all that.)
But, on a broader level, what’s keeping the court system from putting policies in place that separate cases on a mega-docket into “Will take 30 minutes” and “Will take 5 minutes” stacks and, then, “No hearing needed” or “Phone hearing” stacks?
The Judges can’t enjoy this present system, where 20-30 matters of varying complexity are randomly jumbled together on a Friday morning and the Judges are forced to play whack-a-mole, mixed with lightning-round legal analysis.
If this system is just out of habit and custom, let’s fix that right now. Even without a global pandemic, this can’t be the best way to handle cases.
In my personal life, I’ve valued health and safety over really fun things, like Grizzlies playoff games, exotic trips, and karaoke. But, in my professional life, it’s frustrating to take on so much risk, when it’s both unnecessary and unjustified.
Two years in, we have all this experience and technology, but, nevertheless, we are handling hearing dockets than the same way we did it 100 years ago.
My sharing this experience isn’t meant to complain or scold anybody, but to talk openly about my experience. I know so many lawyers and court staff who have caught COVID in court, but we don’t talk about it, because…it’s embarrassing or we don’t talk about being sick? I don’t know. But, if not talking about it means that we don’t realize it’s a problem, then I hope my story starts that conversation.
In the end, my COVID has passed pretty easily, but I also worry about the people who I came into contact with on Sunday and Monday, before I realized what I had.
What’s worse is, as I type this on Friday morning, my 9 year old daughter woke up with a fever. All because I sat in court last week for 3 plus hours on something that should have taken 3 minutes.
The biggest COVID risk for our family has always been me.
People are getting sick, and we have the ability to reduce the risk. Why aren’t we? What I can do to help?
Tennessee is a non-judicial foreclosure state. In order to foreclose on somebody’s house or commercial property, all a lender must do is mail the proper paperwork to the proper parties. A lawsuit or other court involvement is not necessary.
That’s a drastic over-simplification, but, basically, it’s true.
In fact, when I did my first-ever foreclosure 20 years ago, I was so nervous about not having a court involved in such a complex and significant process that I filed a judicial foreclosure action. That way, at the end, I’d have a Judge’s blessing that “This was done correctly.”
What happens to a sale if the foreclosure attorney doesn’t do the paperwork correctly? Is it a valid sale? Can it be challenged?
Yesterday, the Tennessee Court of Appeals reminded us all that even a defective sale can convey good title, at Brady L. Daniels Et Al. v. Vince Trotter, E2020-01452-COA-R3-CV (Tenn. Ct. App. July 20, 2022).
In the case, it was alleged that the creditor did not provide proper notice of the sale, per Tenn. Code Ann. § 35-5-101(e). In the opinion, the Court discussed what, if any, impact of a failure to get the paperwork correct would have on the sale and cited two statutes.
The first, Tenn. Code Ann. § 35-5-106, provides that “[s]hould the officer, or other person making the sale, proceed to sell without pursuing the provisions of this chapter, the sale shall not, on that account, be either void or voidable.”
The second, Tenn. Code Ann. § 35-5-107, provides that the officer or other individual making the sale who fails to comply with the requirements in this chapter of conducting a private foreclosure sale is guilty of a class C misdemeanor and is liable for all damages incurred by the party injured due to his or her noncompliance.
These two statutes, the Court noted, are “intended to eliminate the uncertainty with land titles resulting from foreclosure sales.” Citing the Tennessee Supreme Court, the Court later wrote that a defect in a foreclosure process would not result in the sale being set aside but, instead, the damaged party would simply be entitled to compensatory damages.