David

There’s a 15 Day Limit to Continuances in Tennessee Detainer Actions

Landlording is a hard business. If you don’t think so, wait until the first time you have to sue your tenant to evict them.

In Tennessee, the process is done by a “detainer” warrant, and it’s a full blown court proceeding, which is generally done in General Sessions Court.

In these proceedings, the landlord wants the proceeding resolved as soon as possible, while the tenant wants to stretch out the proceeding as long as possible. Who doesn’t like to live rent free, right?

Tenn. Code Ann. § 29-18-118 provides some protection for landlords. That statute allows the judge to continue a matter, but only to a time not exceeding 15 days.

The only exception the statute provides that would allow for a longer period of time is: (1) if the parties agree to a longer time; (2) the 15 days ends at a time when there’s no court; or (3) the party asking for the continuance pays “the costs.” (Here, the costs means they pay, at the time of the request, the rent due for that period, plus any other amounts due/incurred during that period.)

So, the tenant might get a delay–note that the statute isn’t absolute, it says “may”–but there’s an absolute limit to the delay. No Tennessee case–published or unpublished–provides any exception that allows for a longer continuance to this statute.

The Cure for a B.S. Answer is the Power of a Motion for Summary Judgment

“All litigants have the right to defend themselves,” I tell my clients when I’ve received a B.S. Answer to a Complaint I’ve filed. As you know, I usually represent banks and other creditors, and, frankly, there are not many defenses to the lawsuits I generally file.

I generally have to prove: (1) the Defendant signed the Note; (2) the Plaintiff loaned money; (3) the Defendant didn’t pay the money back; and (4) how much wasn’t paid back.

Sometimes, the defendant calls and simply concedes judgment and, instead, focuses on the real issue at stake (setting a reasonable and “livable” repayment schedule). One of the results of a generally improving economy, however, is that a defendant may not have enough money to repay the debt, but they’ve got enough money to put up a little bit of fight.

In most cases, this involves “delay” tactics. In the Answer, the defendant will raise no real factual or legal defense, but they’ll deny everything, demanding that the plaintiff “prove” the facts.

That’s when I file a Motion for Summary Judgment under Tennessee Rule of Civil Procedure 56, which is a Motion that tells the Court that: (1) the material facts are not disputed (or cannot be disputed); and (2) on those undisputed facts, the plaintiff is entitled to judgment as a matter of law.

In response, a defendant’s broad denial of all facts will not win. Instead, Rule 56.03 says that a defendant must “demonstrate” that an important fact is disputed. If a fact is disputed, the defendant must support the denial with a specific citation to an affidavit or a deposition. A general denial isn’t enough.

This focus on the need to “demonstrate” that relevant facts are disputed was discussed recently in Discover Bank Issuer of Discover Card v. Layton Howell, III, No. M2013-00485-COA-R3-CV (Tenn. Crt. Apps. Nov. 8, 2013).

Keep this case in your tool-box for the next time that a defendant tries to delay the inevitable without concrete facts.

You Say I Can’t Cite Unpublished Opinions: I Say Free Legal Research in Tennessee!

One of the most useful things about my Tennessee Bar Association membership is the “TBA Today” daily email, which has links to Tennessee legal news and blurbs/links to the recent Tennessee Appellate Opinions.

Just like I did earlier this week about quantum meruit, I frequently blog about the opinions, regardless of whether the opinion is going to be published. Invariably, some dummy comments that I shouldn’t mention the case because, under Tennessee Supreme Court Rule 4, an opinion that is designated as “Not for Citation” shall not be cited as authority in court pleadings.

Well, first off, I’m giving them too much credit: the dummy commenters never actually cite Rule 4. Secondly, they miss the point. Even if unpublished cases aren’t binding authority, they are still great resources for the most up-to-date statement of the law on a topic.

Nearly every day, new cases are posted, and those cases provide incredible overviews of a Judge’s very up-to-date research on issues of law.

Want to learn what the Tennessee Dead Man’s Statute? Look at this case from last week.

How will a court rule on a Motion for Judgment on the Pleadings? Here’s a case from two weeks ago.

Want to be shocked and amazed at how horrible divorce cases can be? Well, basically, the Court issues an opinion every other day with facts and attorneys fees that will make your hair raise, so I’m not going to cite to those.

Well, I’ll cite to the one from last week about the guy who married a blackjack dealer and brought her back to Tennessee. And, also, check out this one about the millionaire who has basically lived the past 20 years of his life trying to not pay anything to his ex-wife. Marriage!

If you aren’t a TBA member, you can still look at the cases at the Tennessee Courts website. Even better, the website has a “search” button, so if you’re looking for a specific topic, you can search the case summaries. Up-to-date and free legal research can’t be beat, published or unpublished.

Service of Process: Just Like the Movies

There’s a reason that there’s never been an epic movie about Bankruptcy lawyers: To the rest of the world, it’s not very exciting work.

In fact, the only movie about it (that I know of) is Heart and Souls (1993), starring Robert Downey, Jr. as a creditor bankruptcy attorney who goes after struggling companies and shuts them down when they can’t pay their bills. The premise is that his four childhood guardian angels come back to visit him and are shocked at the work he does. (Yikes).

But, there is one aspect of my practice that is just like the movies: Service of Process.

Under the Tennessee Rules of Civil Procedure, a lawsuit and summons must be physically served on an individual (Per Rule 4.04).

This part of the process can be frustrating to clients, because, until you get the other party served, they have no responsibility to answer and the case doesn’t move forward. Obviously, the other party in the lawsuit has every incentive to dodge, evade, and generally run from you when you go to serve them.

I wrote about this on Paid in Full–some of my clients get so upset that they want to serve the process themselves (which they can’t).

My advice: Find a really good process server, one who is willing to be creative in order to get the job done.

Have you ever seen the movie Pineapple Express? In that movie, Seth Rogen plays a sneaky process server, who has a car full of costumes and disguises. That’s who you want working for you.

I have a guy right now, who is great. He’s gone to the door with a big bouquet of flowers. He’s used a pizza delivery guy disguise. Around the holidays, he doesn’t serve “process”–he delivers “gifts.” Who doesn’t like gifts?

Sometimes you get efficient and good results because you’re a great lawyer. Sometimes, it’s because the other side thinks they have a secret admirer.

Creditors Rights 101: Double the Content, Same Low Price!

In addition to this fine blog, I now will also be blogging at a second location, on my law firm’s website.

That blog is called Paid in Full.

Paid in Full will cover some of the same ground that this blog covers, but, as corporate blogs sometimes do, that discussion may tend to have the “top button buttoned,” if you know what I mean.

I know, I know. The internet is littered with the carcasses of abandoned blogs. So, you might ask, why on earth keep two blogs?

I enjoy this forum and appreciate the growth I’ve seen in the three years I’ve been posting here. A surprising number of you subscribe via email or follow me on WordPress, and the Google search results I get show that people want to see what I’m talking about here.

So, now, congratulations. You’ll either get double the content or, equally likely, you’ll get to see me slowly kill off two blogs.

Be sure to check out Paid in Full, subscribe to that blog via email as well, and keep Creditors Rights 101 bookmarked.

Remember how they did a spin-off of the TV show Baywatch, called Baywatch Nights? Well, this is sort of like that, except Paid in Full is the spin-off, and this blog is the fun one, with all the bikinis.

Think Before You Tweet: Your Online Rant Could Get You Sued in Tennessee

You do it. I do it. Everybody does it.

Your steak is burned.Your cable goes out. You have to wait 30 minutes too long in the waiting room.

Out of boredom, anger, or some mix of it all, you go on twitter or Facebook and complain. If you really want their attention, you link your target’s twitter account. That will get their attention, you might think. Maybe they respond and apologize.

Or, maybe, they file a lawsuit against you for defamation or invasion of privacy. Yes, in Tennessee, a twitter or Facebook rant can get you sued.

The Tennessee Court of Appeals recently considered this issue in the opinion of Jennifer Patterson v. Natalie Grant-Herms, decided on October 8, 2013. In that case, the Defendant (accomplished Christian music performer Natalie Grant) posted a number of complaints about the Plaintiff’s service (the Plaintiff is a boarding agent for Southwest Airlines), in which Defendant: mentioned Plaintiff by name; complained about a boarding decision involving Defendant’s child; and generally made a mountain out of a molehill regarding a trivial inconvenience.

(Edited to add: The underlying lawsuit had more of the tweets, including one from Natalie Grant where she bragged that her baby had a “MAJOR blowout” which was left as “a gift on the plane.”)

Ultimately, the Court found that the tweets did not rise to the level of actionable defamation (but, instead, were complaints showing “frustration”), but the Court found that the personally identifiable statements about the Plaintiff could constitute actionable false light/invasion of privacy.

The real take-away is this: Plaintiff brought a viable claim against Defendant as a result of tweets. Defendant had to hire a lawyer to defend herself, and the matter was litigated to the Court of Appeals (and, now, it’s remanded back for more proceedings).

Frankly, between you and me, I think the tweets, which were directed to Southwest, the Plaintiff’s employer, would constitute actionable defamation.

I tell my clients all the time to avoid any meaningless, unnecessary action that will result in exposure to a lawsuit. This is a classic example of a person letting anger lead them to action that invites a lawsuit.

It’s Not Me, It’s You: My Thoughts on Dealing with “The Clients From Hell”

I can remember the email like it was yesterday, even though it’s been a few years now.

I’m sitting on my couch, at 7pm on the Friday night before New Years Eve. I check my work e-mail to find this long, mean request (demand) from a client. The client wanted updates on about a dozen matters, and they wanted them right then. The e-mail had the red exclamation point and a condescending tone that was unmistakable.

This client had long before decided that I was over-paid, too slow to respond, and, despite the great success I’d had for them, not very good at my job.

In the spirit of New Years Eve Resolutions, I decided right then that the next year would bring one specific change: I was going to fire my largest paying client.

The next week, I did just that. There was no conciliatory or touchy-feely “let’s work this out” effort. Instead, I thanked them for the work and gave them a list of 3 lawyers who I sincerely thought would do a fine job for them.

You can imagine my interest, then, in the recent articles about “How to Handle the Client from Hell.” Here’s the original article, “How to Deal with a Toxic Client.”

I’m fortunate to be a very busy lawyer, and the risk I took by firing a big client was tempered by my ability to focus my efforts on my other clients (who actually appreciated my work and results).

Not every lawyer has that luxury, but I question the advice in the articles, like asking the ranting client “What was that all about?” Open hostility rarely makes for a good working relationship, especially one that involves hourly billings that the client is complaining about.

My ultimate take-away on my decision was this: I screen new clients thoroughly, to make sure that their expectations fit in with my abilities (including costs, results, and time). If they want constant updates on minor developments, they might not be for me (unless, of course, they are willing to pay me for those constant updates).

Angry, ungrateful, and cheap? No, thank you.

You’ve Got the Escalade, Now What? A Reminder of What Slow Pay Motions Can’t Do

With the economy in shambles, I’ve come to learn that, sometimes, people are broke.

When I ask that they pay me $250 a month on a judgment, they turn around and file a “slow pay” motion asking to pay me $20 a month. I talked about Slow Pay Motions (a.k.a. Motion to Pay Judgment by Installments) a few years ago.

Let me revisit one aspect I left out in that earlier post: What exactly does a Slow Pay Motion stop you from doing?

Tenn. Code Ann. § 26-2-216 does not stay garnishments against real or personal property; it only stays garnishments against wages or salaries due to the debtors:

The filing of such motion by the debtor shall stay the issuance, execution or return of any writ of garnishment against wages or salary due the judgment debtor or any other funds belonging to the judgment debtor …

Tennessee cases support this conclusion: “No such installment payments are to be ordered unless the debtor has filed an affidavit stating that no other assets are available for payment of the judgment except the wages or salary of the debtor and that any other funds receivable by the debtor are so limited that installment payments are appropriate.” Harrington v. Harrington, 759 S.W.2d 664, 668 (Tenn. 1988).

So, let’s say you execute against a Cadillac Escalade (congratulations), and the borrower files a Slow Pay. In that case, the Court may enter a Slow Pay Order and set payments. But, that Order will prevent Wage Garnishments; it will not stop collections on real or personal property.

Useful CLE Alert: 2013 Tennessee Real Estate Law Conference in Nashville

It’s getting close to the end of the year, so now is the time to be looking to satisfy the year end CLE requirements.

Tennessee Attorney’s Memo is presenting the 2013 Tennessee Real Estate Law Conference on October 4, 2013. This all day seminar will cover a number of topics related to real estate, mortgages, and case law updates.

Most important, Sean Kirk of Bonelaw will speak about our practice group’s big victory in the Sterling Ventures case, which was the first opinion to construe Tenn. Code Ann. § 35-5-118–the new Tennessee post-foreclosure deficiency statute.

Computation of Time: How Do You Count “10 Days” for a General Sessions Court Appeal in Tennessee?

Everybody knows that, in Tennessee General Sessions Courts, you have a right to file a de novo appeal in ten days. But, lawyers sometimes scratch their heads on how to count ten days. Is it business days? Is it calendar days?

Tenn. Code Ann. § 27-5-101 may provide the Answer:

Any person dissatisfied with the judgment of a recorder or other officer of a municipality charged with the conduct of trials, in a civil action, may, within ten (10) entire days thereafter, Sundays exclusive, appeal to the next term of circuit court.

So, under the statute, you use calendar days but you exclude any intervening Sundays.

Also, see Tenn. Code Ann. § 1-3-102:

The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is a Saturday, a Sunday, or a legal holiday, and then it shall also be excluded.

So, if the tenth day falls on a Saturday, Sunday, or a legal holiday, the deadline rolls forward.

Ok, last question, what’s a “legal holiday” in Tennessee? See Tenn. Code Ann. § 15-1-101:

January 1; the third Monday in January, “Martin Luther King, Jr. Day”; the third Monday in February, known as “Washington Day”; the last Monday in May, known as “Memorial” or “Decoration Day”; July 4; the first Monday in September, known as “Labor Day”; the second Monday in October, known as “Columbus Day”; November 11, known as “Veterans’ Day”; the fourth Thursday in November, known as “Thanksgiving Day”; December 25; and Good Friday; and when any one (1) of these days falls on Sunday, then the following Monday shall be substituted; and when any of these days falls on Saturday, then the preceding Friday shall be substituted; also, all days appointed by the governor or by the president of the United States as days of fasting or thanksgiving, and all days set apart by law for holding county, state, or national elections, throughout this state, are made legal holidays, and the period from twelve o’clock (12:00) noon to twelve o’clock (12:00) midnight of each Saturday which is not a holiday is made a half-holiday, on which holidays and half-holidays all public offices of this state may be closed and business of every character, at the option of the parties in interest of the same, may be suspended.