Sometimes, I use Google for Legal Research

I received an e-mail from a potential client this week that sort of confused me. Frankly, I didn’t know the answer.

The dispute related to a term I hadn’t seen before. The issue involved a check that his bank had returned, unpaid, to the other bank as “Return to Maker.” When I saw that, I went around the other bank lawyers. That’s my real “first step in researching weird legal issues”–asking the older bank lawyers if they’ve ever seen this.

When they either hadn’t (or weren’t at their desks), well, I consulted Google.

And, sure, you’re probably thinking that a lawyer shouldn’t admit to googling legal questions, but you’re wrong. Google is great to get general answers or concepts, before digging down on Westlaw.

In fact, I suspect Google is how the readers of this blog got here. But, Google can’t be entirely trusted, and you have to consider the legitimacy and trust-worthiness of the source when you click on the results.

So, yes, I found out that “return to maker” means, generally, that the payor bank has reason to deny the check due to a suspicion that the negotiable instrument has been forged, modified, or is generally unsure of the legitimacy. That note instructs the drawee bank to revisit the issue with their customer.

With that information (and before I gave out any legal advice), I did that deep dive on Westlaw  to confirm my analysis under Tennessee’s UCC adoption of Article 3.

So, there you have it. If a lawyer denies using Google, don’t believe them.

 

Exceptions to the Automatic Stay Exist to Allow Enforcement of Some Materialmen’s Liens

When a borrower files bankruptcy, a good rule of thumb is that the automatic stay of 11 U.S.C. § 362 applies to stay any and all acts against the borrower or his property related to pre-petition causes of action and debts.

But, 11 U.S.C. § 362(b) provides some exceptions, include the exception found at § 362(b)(3), which provides that the automatic stay does not stay

…any act to perfect, or to maintain or continue the perfection of, an interest in property to the extent that the trustee’s rights and powers are subject to such perfection under section 546(b) of this title or to the extent that such act is accomplished within the period provided under section 547(e)(2)(A) of this title…
This section is most important to creditors who hold some lien interest in the debtor’s property, but the bankruptcy was filed during the time that the creditor was allowed to perfect them (or maintain them).
A Bankruptcy Court  in North Carolina recently issued an opinion that clearly shows how this exception should apply in Branch Banking & Trust Co. v. Construction Supervision Services, Inc. (In re Construction Supervision Services, Inc).
In that case, a subcontractor held valid but unperfected materialman’s lien rights on a property, which remained valid and enforceable, but for the bankruptcy filing. Because of the 362(b)(3) exception (i.e. the rights were valid and timely, except for the fact that a bankruptcy was filed), the contractor was able to assert those rights post-petition.
Again, the general rule is that a bankruptcy operates to stay all activity, but there are exceptions.

Presenting at 2017 Family Law Forum: The Life Cycle of a Divorce

As you all know, I regularly speak at Continuing Legal Education seminars for lawyers on topics related to foreclosure, bankruptcy, and other creditor rights issues in the law.

Well, to my surprise, the Tennessee Bar Association has asked me to talk about family law, at its annual Family Law Forum: The Life Cycle of a Divorce, on May 24, 2017.

Now, before you prepare your expert-level questions about parenting plans and in futuro alimony, please know that I’m speaking on Social Media legal issues in family law matters, including things that lawyers must warn their clients against.

I’m an expert on that, because I’ve been law tweeting actively for eight years at @creditorlaw, and my firm has only asked me to delete two tweets. That’s basically a perfect track record.

And, just in case one of you do that thing where you ask presenters weirdly complicated questions, I’ve enlisted Phil Newman, a great lawyer who I refer all family law matters, to serve as my co-presenter.

I’ll post more details later.

Want to Avoid Garnishment of Your Wages? Find a Job Where You are Paid in Cash Tips

Judgment debtors with non-traditional employment are always a headache to collect from. This includes self-employed people, independent contractors, and people who work for tips.

Here, I’m talking about waiters, valets, and anybody else who may earn a nominal hourly rate, but the bulk of their income comes from tips or gratuities. How do you garnish $5 in cash handed to a valet?

In Tennessee, you can’t. The Tennessee Court of Appeals recently considered the issue of whether tips reported by the Garnishee’s employees are to be included in the calculation of disposable earnings for the purposes of garnishment in determining the withholding under the garnishment statute, Tenn.Code Ann. § 26–2–106.

This case was Erlanger Med. Ctr. v. Strong, 382 S.W.3d 349, 351 (Tenn. Ct. App. 2012). In that case, the judgment debtor was a server at Shoney’s.  In deciding whether tips could be garnished, the Court looked at how “wages” was defined in Tenn.Code Ann. § 26–2–102 (which suggested that tips are included), but the Court went on to note that federal law excludes tips from garnishment because tips “do  not pass to the employer.”

This makes sense, because how can an employer withhold 25% of funds that it never has control over?

As a result, a judgment debtor whose primary income comes from tips and gratuities (that do not pass through the employer’s hands) may be able to escape garnishment.

But, where the tips are paid via the employer, there’s still a chance that those funds can be captured. Since at least 75% of restaurant transactions are paid via credit card (including payment of tips), there’s a strong argument that such tips could be garnished if the employer disbursed those tips in the form of a paycheck.

Advice for New Lawyers: Always be Prepared, Even for the Easy Arguments

I’m not going to use this post to complain about millennials. Instead, I’m going to complain a little bit about lawyers who are lazy and don’t think for themselves. But, sometimes, this means younger lawyers who happen to be born in the “millennial footprint” (defined as being born from 1982 to 2004).

In the not so recent past, another lawyer agreed to announce a foreclosure continuance for me. This is one of the easiest tasks a degreed lawyer can handle. In fact, some firms send people in Harley Davidson t-shirts to do this, so it’s not quite rocket science.

So, I told the lawyer that the sale was at the Register of Deeds and started to walk away. Then, he asked, “where is that?” I’ll save you the annoying details, but it involved ten minutes of my time showing him how awesome google is for answering questions.

So, recently, I was headed to General Sessions Court with the intent of asking for a “free” continuance in a matter that was set for the first time. If you read this blog, you know that I got to Sessions Court all the time. And, without a doubt, the Court will grant you a free continuance on the first setting of a matter.

But, instead of just going to court and citing “this is what you Judges always do,” I thought I’d be prepared with, you know, the actual legal authority for this. So, I followed my own advice and looked at the Local Rules for General Sessions Court. And, I made the request with complete confidence that it would be granted.

Of course, when I asked for the continuance, the Judge gave it to me without question, but I was prepared for the worst case scenario.

Ok, this blog post doesn’t have a specific point, other than to note that I–having appeared in Sessions Court at least 500 times–took the time to be prepared with legal authority for a very routine request.

So, maybe that’s the point. Lawyering is hard, and so is being a Judge. Always be prepared for the worst case scenario, and take the time on your own initiative to be prepared.

 

Interpleaders: The Only Time People Like to Hear from Me

When people ask me what kind of law that I do, I always end my answer with “Generally, it’s bad news if you’re hearing from me.” In fact, if you’re reading this right now on a computer, look at my bio over to the right.

If you’re on a phone, I’ll help. It says: “It’s probably bad news if you’re hearing from him.

Recently, though, I’ve been spreading good news, because I’m filing a bunch of interpleader lawsuits.

Interpleader actions are filed by plaintiffs who are asking for court direction as to who to send cash or other property to. The typical situation arises after a foreclosure, when the foreclosure attorney sells the property for more than the debt owed, and there are multiple parties who can make a claim for those excess proceeds.

Generally, the deed of trust is pretty clear as to who gets the money, but, sometimes, it’s not clear or the situation is contentious. To be safe, you file an Complaint for Interpleader under Rule 22, name all the parties who have, or may have, a claim to the proceeds, and ask the Court to decide. This way, the judge gets to make the hard decision, and the foreclosure attorney (often the substitute trustee) isn’t exposed to future lawsuits alleging he paid the money to the wrong party.

Under Tenn. R. Civ. P. 22.02, the attorney files the lawsuit, later deposits the money with the Court, and, then, the filing attorney can be dismissed while the remaining parties fight over the money.

So, back to my phone calls this week. I was calling my “Defendants” to tell them that I was getting ready to sue them, but, “don’t worry, it’s a good lawsuit.”

 

The Law is All Paperwork: An Improperly Authenticated Judgment may Result in Dismissal of Foreign Judgment Action

On my Facebook page, I describe myself as “The Garth Brooks of Paperwork.” Which is a way of poking fun at lots of things about me and my job.

But, law students, please know that success as a lawyer is basically 65% being really good at paperwork.

Thankfully, for the other 35% of us, you can generally amend pleadings to correct mistakes or errors. I’ve recently found a situation where you can’t amend a court filing, such that the entire case might be dismissed.

It’s when there’s an error in your initial filing of a Notice of a Foreign Judgment under the the Uniform Enforcement of Foreign Judgments Act (the “Act”), found in Tennessee at Tenn. Code Ann. § 26-6-101 et.seq.

If a judgment creditor fails to attach a proper exhibit, i.e. a properly authenticated copy of the out-of-state judgment to be enforced, there is a line of cases in Tennessee that say the entire lawsuit is defective because the failure to follow the statutory procedure for authenticating a foreign judgment is fatal as a matter of law.

What’s scary about this line of cases is that there appears to be no ability to file a Motion to Amend Pleadings under Rule 15. Those types of requests are generally granted and would usually allow the plaintiff to correct the error and move on.

Not in proceedings under the Act, Tennessee Courts have said. A recent trial court decision found that a Notice of Filing was not one of the expressly provided list of “pleadings” in Rule 7.01 and, therefore, not subject to amendment under Rule 15.01.

Tenn. R. Civ. P. 15.01 allows parties to amend their pleadings, and leave to amend pleadings is freely granted by the courts when justice demands. Tenn. Rule 7.01 defines “pleading” as a complaint, answer, counter-complaint, answer to a cross-claim, a third-party complaint and third-party answer and states that “no other pleading shall be allowed.’ The Notice of Filing required by Tenn. Code Ann. § 26-6-104 is not one of the pleadings listed in Rule 7.01.

Apparently, then, the judgment creditor’s only recourse when the foreign judgment notice is defective is to dismiss the domestication action, and then re-file a corrected, new proceeding. Yikes.