Finally, courts across New York will now have uniform guidelines to help homeowners in foreclosure!
Since 2009 many homes were lost to foreclosure due to variations in how courts dealt with borrowers during FCP conferences (Foreclosure Conference Part). Obviously, unproductive settlement conferences were surely to blame as well.
One of the more important revisions revolves around "bad faith". Now that the courts have somewhat addressed this issue and provided some much needed direction we can hopefully see both parties (especially the banks) come to the table ready to settle. And, surprisingly it is sometimes the borrower who behaves as if they do not want to save their homes. I believe though, this is more due to frustration than anything else. Most of these "bad faith" issues revolve around lenders sending in per diem attorneys to conferences with little to no information regarding the case. Along with the banks invoking the famous "phantom investor restrictions" excuse. Clearly, this makes it impossible to settle. A tactic long used by the banking industry. Which when you think about it makes no sense. Aren't banks in the business of collecting money, not properties??
And, finally the most problematic issue we see is the failure to answer the summons and complaint. Unfortunately, many borrowers mistakenly believed that showing up in court and providing the bank with loan modification documents is the same as filing a written answer. The problem here is the borrower usually discovers after their case is removed from FCP that they failed to file an answer. Thankfully, the court will now address this problem by advising the homeowner at the first conference of the need to file an answer. Time to answer is limited though to 30 days from the initial FCP appearance. Clearly, the borrower must have a valid reason for not answering the summons and complaint.
Since their inception in 2009, settlement conferences under New York's judicial residential foreclosure conference process, the mandatory mediation program New York enacted in response to the foreclosure crisis, have allowed thousands of New York homeowners to achieve settlements and loan modifications, thereby averting foreclosures and sparing New York's communities their adverse effects. But many homes have been needlessly lost to foreclosure because of unproductive settlement conferences, with erratic implementation of the law leading to dramatic variations in the efficacy of the conferences (see Divergent Paths: The Need For More Uniform Standards and Practices in New York State's Residential Foreclosure Conference Process (New Yorkers for Responsible Lending), available at http://www.legalservicesnyc.org/storage/PDFs/divergent paths.pdf).
Legislation enacted in the waning hours of the 2016 session included significant changes to the foreclosure conference process. These amendments fill many of the gaps that the original legislation left open, so there is now hope that the settlement conference law will be more rigorously implemented in all jurisdictions, with uniform consequences to deter its violation, and the legislature's intent to prevent avoidable foreclosures and encourage home-saving loan modification solutions more effectively implemented across New York State. The amendments clarify the courts' obligation to ensure a meaningful negotiation process that prevents avoidable foreclosures by clarifying the obligations to appear with required information and authority, defining the good faith negotiation standard, detailing the remedies when the negotiation process is subverted, and preserving homeowners' ability to defend foreclosure actions on the merits, among other changes.
CPLR 3408 was enacted in 2008 and amended in 2009. It provides for mandatory residential foreclosure settlement conferences at which the parties are encouraged to negotiate, at face-to face court-supervised settlement conferences, foreclosure-avoiding solutions such as loan modification agreements (CPLR 3408(a), (f)). It requires parties appearing at conferences to appear with authority to dispose of the case (CPLR 3408(c)), and requires the courts to provide notice to the parties of the scheduling of the conference and the documents to be brought to the conference (CPLR 3408(e)).
Although CPLR 3408(f) presently expresses a preference for home-saving loan modifications, specifying that "the plaintiff and defendant shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible," for some homeowners other options such as "deeds in lieu of foreclosure" or "short sales" are more viable.
Some courts denied defendants settlement conferences based on a determination that the homeowners could not qualify for a loan modification, depriving homeowners of the opportunity to avoid foreclosure with a negotiated settlement as the Legislature intended. The amendments clarify that other loss mitigation options, not just loan modifications, are proper subjects of settlement conferences (CPLR 3408(a)).
Following amendment in 2009, the law imposed an affirmative obligation to negotiate "in good faith" to achieve such loan modifications, if possible (CPLR 3408(f)), but the law left "good faith negotiation" undefined, and prescribed no remedies when that standard is violated, leaving the courts to devise their own, sometimes idiosyncratic, definitions of good faith and to craft remedies when parties did not fulfill the mandate to negotiate in good faith. The recent amendments fill some of the gaps left by the original law.
The amendments adopt a good faith definition evolved from case law, stating that it "shall be measured by the totality of the circumstances." Courts determining good faith shall now consider: (1) compliance with the requirements of CPLR 3408 and applicable court rules, orders or directives of the court or its designees; (2) compliance with applicable mortgage servicing laws, rules or regulations and loss mitigation standards; and (3) conduct consistent with efforts to reach a mutually agreeable resolution, including avoiding unreasonable delay, appearing at conferences with authority to settle, avoiding prosecution of foreclosure proceedings while loss mitigation applications are proceeding (known as "dual tracking"), and providing accurate information to the court and parties (CPLR 3408 (f)).1 In light of some courts' reluctance to consider conduct preceding the formal start of settlement conferences when assessing good faith, the reference to dual tracking is significant, because it by definition authorizes consideration of conduct preceding the settlement conference process.
The amendments provide additional guidance about other settlement conference requirements. CPLR 3408(c) clarifies that any party's representative at the conference must appear with authority to dispose of the case. In the past, plaintiffs routinely appeared by per diem lawyers or representatives lacking required authority or information needed for meaningful negotiations. As a result, the settlement conference process is often needlessly protracted. See Stalled Settlement Conferences: Banks Frustrate New York's Foreclosure Settlement Conferences, April 29, 2014, available at http://nylawyer.nylj.com/adgifs/decisions14/050214report.pdf.
The amendment revises the language to make the appearance with authority requirement applicable to all representatives appearing at conferences. Also, while the original statute allowed only plaintiff's representative to appear telephonically or by video conference, as amended, either party's representative may be permitted to appear by video or telephone.
The amendments also add stronger language concerning the obligation to bring required information needed for meaningful settlement negotiations to conferences, for both defendants and plaintiffs (CPLR 3408(e). The amendments require plaintiffs' representatives to appear with a summary of the status of the plaintiffs' evaluation of any pending loan modification or loss mitigation applications, including a list of outstanding items required for completion of the application; an expected date for completion of the review of the application; and, if the application was denied, a denial letter or other document explaining the basis for denial and documentation supporting denials.
Plaintiffs' invocation of phantom investor restrictions, and refusals to seek waiver of such restrictions as is required by the federal Home Affordable Modification Program (HAMP) governing most loan servicers, has been an impediment to settlements and has led to much litigation concerning failure to negotiate in good faith,2 so the requirement that plaintiffs supply this back-up for modification denials provides greater transparency and should prevent litigation on these issues.
Addressing the statute's failure to specify a remedy for violation of the statute,3 the amendments provide a process for adjudicating disputes under the statute and enumerate prescribed remedies for its violation. A new section, CPLR 3408(i), empowers the court to determine good faith and order remedies either on motion or sua sponte, on notice, and also provides that referees, judicial hearing officers or other court staff may hear and report findings of fact and conclusions of law, and may make reports and recommendations for relief to the court. New subsections (j) and (k) enumerate remedies when both plaintiffs and defendants fail to negotiate in good faith.
CPLR 3408(j) mandates that when plaintiffs fail to negotiate in good faith, the court shall, at a minimum, toll interest and fees during any undue delay caused by the plaintiff, codifying the most commonly granted remedy under the case law construing CPLR 3408(f).4 The court may also compel production of documents requested during conferences, impose a civil penalty not to exceed $25,000, and award any other relief deemed just and proper (CPLR 3408(j)).
For defendants who fail to negotiate in good faith, CPLR 3408(k) specifies that the court shall remove the case from the conference calendar, but cautions that the court shall take into account "equitable factors," including whether the defendant was represented by counsel. This is important recognition of the disparity in bargaining power at settlement conferences, where foreclosing lenders are among the world's largest financial institutions and are always represented by counsel, while defendants are among the most vulnerable, and often are left to fend for themselves without access to counsel or understanding of the court proceedings in which they find themselves.
Foreclosure actions historically proceeded on default in most cases, with no homeowner defendant participation. With the advent of settlement conferences, defendants have become participants in the process, as homeowners lacking access to counsel or the wherewithal to answer a complaint are nonetheless able to—and do—appear in court for settlement conferences when they receive notice from the court of a scheduled conference date.5 But homeowners who have participated in conferences and believed they had "answered" by attempting to negotiate a settlement in court and complying with onerous application processes and documentation requests from their mortgage servicers have, upon exhaustion of settlement conferences, been prevented by the courts from submitting answers and litigating their cases on the merits.6 The amendments address that unintended problem.
CPLR 3408(l) now obligates the court, at the first settlement conference, to advise the defendant of the requirement to answer the complaint, to explain what "answering" a complaint entails, that the ability to contest the foreclosure and assert defenses may be lost if an answer is not interposed, and to provide information about available resources for assistance. Also, a new Section 3-a of RPAPL 1303 directs the Department of Financial Services to publish a Consumer Bill of Rights detailing the rights and responsibilities of parties to foreclosure proceedings, which the court must provide to foreclosure defendants at the first settlement conference, pursuant to CPLR 3408(l).
A new subsection (m) of CPLR 3408 overrules much of the appellate case law effectively barring non-answering defendants who participated in settlement conferences from vacating defaults and interposing late answers, providing that a defendant who has defaulted in answering but appears at settlement conferences is presumed to have a reasonable excuse for the default and shall be permitted to serve and file an answer, without any substantive defenses deemed waived, within 30 days of the initial appearance at a settlement conference, and with the defendant's default being deemed vacated upon service of such late answer (CPLR 3408(m)). This will spare the courts adjudication of motions for leave to vacate defaults and serve late answers, which currently flood the dockets of both the trial and intermediate appellate courts and will better implement the preference of disposition of cases on the merits.
Subsection (m) of CPLR 3408 also codifies existing practice under the Uniform Court Rules (Uniform Rules for the Supreme Court and the County Court §202.12-a (c) (7)) specifying that motions shall be held in abeyance while the settlement conference process is ongoing, except for motions concerning compliance with CPLR 3408 or its implementing rules. This makes clear that parties participating in the settlement conference process have redress for violations of the settlement conference law even if other motion practice pertaining to the case is held in abeyance (and even if they have not answered the complaint).
US Bank moved for summary judgment and an order of reference in this mortgage foreclosure action. The now-deceased borrower, Eisenman, failed to make payments, but defendant opposed the motion arguing dismissal was warranted due to bank's failure to serve the estate of Eisenman with notice of default under RPAPL §1304. The court found bank established prima facie entitlement to summary judgment and an order of reference noting defendant failed to raise an issue of fact precluding summary judgment in bank's favor. It found defendant's laches argument meritless, as was the claim bank failed to comply with the notice provisions of §1304. Also, contrary to defendant's claim, the Jan. 30, 2012 dismissal of a prior action against Eisenman was not dismissed on the merits, and was not res judicata barring this action. The court stated prior courts found §1304 was inapplicable where the borrower was deceased. Therefore, as Eisenman, the borrower, was deceased, there could no longer be notice given to the borrower, and accordingly, the notice provisions of RPAPL §1304 did not apply. Hence, bank's motion for summary judgment, and an order of reference was granted.
A group of Queens pols is touting a new program to help people living in foreclosed homes turn their fortunes around.
Council members representing southeast Queens gathered Tuesday morning to unveil the new Foreclosure Buyback Program, also known as the City Restoration Program.
They said the initiative is the first in the country of its kind, and would allow nonprofits to purchase distressed mortgages throughout New York City from the Federal Housing Association.
More than 40 so-called “zombie homes” across New York City have been selected for the pilot program, which has partnered with a number of nonprofits to purchase distressed mortgages.
Once these are bought back from the FHA, the nonprofits will work with families to restructure their mortgages and give them the opportunity to remain in their homes.
Councilman I. Daneek Miller, who spearheaded the program, called it a response to the foreclosure crisis that has disproportionately struck areas like southeast Queens.
"Communities are redlined," Miller said, referring to the discriminatory practice of banks rejecting mortgages for residents of certain areas.
"You can't go through a traditional bank to get a traditional mortgage, and then we become very vulnerable and susceptible to predatory lenders."
Steven Kenner came home to a nasty surprise after a two-week vacation in Florida. Papers were strewn about the house. Cabinets were left open. Cigarette butts were ground into the floor. A lock on the door to the laundry room had been tampered with. Kenner, 71, thought his East Hanover home had been burglarized. But what actually happened may have been worse.
It wasn't a burglar. Instead, Kenner's mortgage lender hired subcontractors to break into Kenner's home as part of efforts to see if the home was vacant or abandoned, according to a lawsuit filed by Kenner against Citizens Bank, Citizens One Home Mortgage, subsidiaries of the bank and its subcontractors. The suit was filed in May in Morris County Superior Court.
While subcontractors broke into his home, Kenner was in touch with the bank about a pending mortgage modification and no one reported anything was amiss, he said. And the bank even knew he was away on vacation, Kenner said. Citizens Bank said it doesn't comment on ongoing litigation.
Before it all happened, Kenner said, he broke a bone in his back and was unable to work. In January 2015, he fell behind on the mortgage payments for his home, which he had owned for nearly 40 years.
He contacted his lender to request a mortgage modification.
Kenner entered into a trial plan in December 2015. If he paid the agreed monthly payment on time and in full for January, February and March of 2016, he would enter a mortgage modification that would start in April.
Citizens took automatic monthly payments from Kenner's bank account, and payments were on time for the trial period, Kenner said.
While Kenner was on the two-week trip in late February and early March, he said, he called the lender to check on the status of the modification, and the lender said his payments were not received.
But that wasn't so, Kenner said, and he arranged for his bank to send the proof to Citizens.
When he next spoke to Citizens, Kenner said, he was told there had been an error and yes, his payments were on time. Kenner qualified for the modification, he said he was told, and he was instructed to look for packages with all the paperwork he needed to sign when he returned from vacation.
When Kenner got back to his East Hanover home on March 14, Kenner said he entered the way he usually does: through an unoccupied first floor apartment where his mom used to live.
"The lights were on. Cabinets were open and there were papers all over the place," Kenner said. "I didn't know if I was robbed or what. I didn't know what was happening."
He next entered the home proper through a laundry room that's next to the apartment.
The inside of the laundry room showing the removed lock and the messy floor as it was found when Steven Kenner came home from his vacation.
The laundry room has a door with two locks. Kenner said one of the locks was removed and a round cylinder was placed to cover the space where the lock was.
"They must have put their hand around the round opening to open the other lock to enter my home," Kenner said.
Next, Kenner entered the main house, he said.
More lights were on, more cabinets were open, and cigarette butts were all over, he said.
When officers arrived, they proceeded as if there was a burglary, Kenner said. They dusted for fingerprints and took photos, and they asked Kenner to see if anything was missing.
As officers searched the home, Kenner opened the front door, looking for the packages he was expecting from the mortgage company.
That's when he saw a "6" -- Kenner's house number -- written on the outside of the door with some kind of marker. And then they saw a sticker affixed to the door.
"This property has been determined to be vacant/abandoned," the sticker said.
Police called the number on the sticker and learned it was all a mistake by Kenner's mortgage company, Kenner said.
"The police said they were told that the mortgage company more or less made a mistake," Kenner said. "The mortgage company had contracted with the company that broke into my home to see if the home was vacant."
But the home was not vacant, nor had the bank ever started any foreclosure proceedings, said Kenner's attorney, Philip Vinick.
Vinick said the New Jersey Supreme Court adopted amendments to court rules governing the foreclosure of vacant and abandoned residential properties in December 2012.
If a lender brings a foreclosure action and it believes a property is vacant or abandoned, the lender can ask for a quicker judgment from the court so it can take steps to maintain the property. For that to work, the lender must prove that at least two of 14 conditions must be present at the property, such as overgrown or neglected vegetation, disconnected utilities, the accumulation of mail or newspapers and the absence of window treatments.
None of the 14 conditions applied to Kenner's home, the attorney said.
"In Mr. Kenner's case the lender did not even institute a foreclosure action much less prove that Mr. Kenner's house was vacant, which it obviously was not," Vinick said.
Even after Citizens was made aware of the error, the bank's subcontractors continued to contact Kenner, the homeowner said. One wanted to come into the home. Another wanted to shut off his water.
And two days after Kenner returned home, Kenner's son passed the home and saw workers on property, according to a statement provided to Kenner's attorney. The son said he asked the workers what they were doing, and they said they were hired by the mortgage company to remove some shrubs. The workers then called the mortgage company, which in turn told them to leave the property, the statement said.
And, Kenner realized, the cylinder that replaced the lock on the laundry room door could be removed by anybody at any time.
At first he moved a washing machine in front of the door. Now a table blocks the passageway.
"I've been very upset," Kenner said, noting that he doesn't feel comfortable in his own home. "I'm thinking very seriously of selling because of what happened to me."
After the suit was filed, Citizens offered to settle, but Kenner's attorney called the amount "insufficient" to "compensate him for his physical and psychological damages, including being embarrassed and having to explain to his neighbors what happened."
"The laws were bypassed or disregarded. It will eventually be left up to jury to determine how much Mr. Kenner's nightmare is worth," Vinick said.
Plaintiff HSBC Bank moved for summary judgment against Murphy, among other things, in this foreclosure on a mortgage action against the subject real property. It alleged it was in possession of the original note with proper endorsement and/or allonge, thus, was the holder of the note and mortgage, stating Murphy defaulted by failing to make scheduled monthly payments. The court granted bank's motion to consolidate two actions, and for a default judgment against defaulting, non-answering defendants. Murphy alleged bank lacked standing arguing the copy of the original note and blank endorsement annexed to its motion and affidavits was invalid as it was on a separate, undated, otherwise blank page. The court agreed, finding the affidavit of Doublin, a document execution specialist for bank's servicer, attesting its physical possession of the original note endorsed in blank, was insufficient on its face. It stated the endorsement itself failed to contain any evidence it was "firmly affixed thereto as to become a part thereof." Doublin also offered no information as to the original note's condition, simply noting Nationstar, as bank's agent, received the original note Sept. 3, 2013, and remained in possession. Thus, bank was not entitled to summary judgment.
Plaintiff bank moved for summary judgment and an order of reference in this action to foreclose a mortgage on an owner-occupied, two-family dwelling. Mitchell cross-moved to dismiss the action alleging bank's failure to serve him with RPAPL §1303 notice. Bank's process server alleged he personally served Mitchell with the §1303 notice when he served the summons and complaint, stating same was effectuated at Mitchell's residence. Mitchell's affidavit averred he was never personally served with §1303 notice or the summons and complaint, stating at the time the process server allegedly served papers, Mitchell was more than one mile away from the home at a local store. The court stated as Mitchell submitted admissible proof controverting the process server's affidavit, the matter was referred for a traverse hearing, and the special referee concluded service of process was not properly effectuated on Mitchell. It found no merit to bank's claim Mitchell waived bank's noncompliance with §1303, noting a lender's failure to comply with §1303 was not an affirmative defense that a defendant to a foreclosure action was required to assert in an answer. Therefore, Mitchell's cross-motion to dismiss was granted and the motion denied.
However, it is often the case that the Statute of Limitations is about to expire during this 90-day period, and servicers are often concerned that if they wait the 90 days to comply with the 90-day notice requirement imposed by RPAPL 1304, the Statute of Limitations will expire. Those who are unaware of CPLR 204A may, therefore, be tempted to initiate the action without first complying with RPAPL 1304.
This is a big mistake, as the failure to comply with RPAPL 1304 will cause the foreclosure to be fatally defective, and the action to be dismissed. (See my prior article - Recent Decisions Regarding New York’s Pre-Foreclosure Requirements).
New York’s CPLR 204A, however, expressly provides “Where the commencement of an action has stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced.” Furthermore, when New York State’s Court of Appeals, New York's highest court, decided the case Archer v. New York City Transit Authority, they expressly ruled that CPLR 204A extends the Statute of Limitations by the amount of time during which Plaintiff has stayed from commencing the action.
Accordingly, banks and servicers should meticulously comply with the requirements of RPAPL 1304, wait to file the summons and complaint until after the 90 days has expired, and take comfort in the extension granted by CPLR 204A.
This Story is from Peter T. Roach & Associates, P.C. click here to view their blog.


text:
Although a contract made by a corporation may be illegal as ultra vires, an implied contract may exist compelling it to account for the benefits actually received.
A national bank which guarantees a loan made by another bank in pursuance of an agreement that it be paid the amount due it by the borrower out of the proceeds of the loan cannot void its liability for the amount actually received by it pursuant to the arrangement on the ground simply of ultra vires; it may be liable for money had and received.
This action was commenced in the Supreme court of New York by the receiver of the Cooper Exchange Bank, a New York corporation, against the Citizens' Central National Bank of New York, a national bank corporation formed by the consolidation (Rev.Stat. §§ 5220 and 5221) of the Central National Bank of the City of New York with the National Citizens' Bank of the same city. The action was dismissed on demurrer to the complaint, and that judgment was affirmed in the appellate division. 116 App.Div. 404. But, on writ of error to the highest court of New York, the judgment was reversed, 190 N.Y. 417, and the cause was remitted to the supreme court of that state for judgment in accordance with the opinion of the former court.
That the defendant, the Citizens' Central National Bank of New York, by the consolidation referred to, acquired all the assets and became subject to the liabilities of the Central National Bank of that city.
That on and prior to January 4th, 1904, one Mikael Samuels was indebted to the Central National Bank in the sum of $10,000.
"For and in consideration of one dollar and other good and valuable considerations, the Central National Bank of the City of New York hereby guarantees to the Cooper Exchange Bank the payment at maturity of a loan of $12,000, made this day to Mikael Samuels & Company by the Cooper Exchange Bank."
"agreed with the said Central National Bank to pay to it the said sum of $10,000 of the said $12,000 so obtained, and the said loan was obtained by the said Mikael Samuels and was guaranteed by the said Central National Bank in order that the said Central National Bank might obtain the said sum of $10,000, which it did receive and which was owed to it by the said Samuels."
That no part of said loan had ever been paid, except $1,000, which was paid April 7th, 1906.
The Court of Appeals of New York -- Cullen, C.J., delivering the opinion -- held and the counsel for the Cooper Exchange Bank conceded in that court, that no recovery could be had against the guaranteeing bank in excess of the amount actually received by it out of the $12,000 loaned, as above stated. 190 N.Y. 417. The case being remitted to the inferior state court, judgment was therefor rendered against the defendant only for $10,000, with interest from January 4th, 1904, with costs in all courts.
action against the guarantor bank. But this action need not be regarded as one on the written contract of guaranty, but as based on an implied contract between the Cooper Exchange Bank and the Central National Bank whereby the latter, under the circumstances disclosed by the record, came under a duty to account to the former for the $10,000 of the $12,000 actually paid to Samuels at its request and on its guaranty. The law would be very impotent to do justice if it could not, under those circumstances, and without violating established legal principles, compel the Central National Bank to recognize and discharge that duty. Samuels owed the Central National Bank $10,000, and -- with knowledge, perhaps, of his financial condition -- he was put forward by that bank to obtain $12,000 from the Cooper Exchange Bank, so that it could get $10,000 out of that sum for its own use. The circumstances show that the latter bank would not have loaned the money to Samuels except at the request and on the guaranty of the Central National Bank. All this, it may be observed, occurred under a previous agreement between the Central National Bank and Samuels that that bank was to have $10,000 of the $12,000 in discharge of its claim upon him. In short, the Central National Bank, by means of the device mentioned, got $10,000 of the money of the Cooper Exchange Bank for its own use, and having used it for its own benefit, it now seeks to avoid liability therefor upon the ground that it was not allowed by the law of its creation to execute the guaranty in question. We know of no adjudged case that stands in the way of relief being granted as asked by the plaintiff. But there are many that will authorize such relief.
"If it be assumed, in accordance with the bank's contention, that it was without power to purchase these bonds, to be replaced to the plaintiff on demand, the question would still remain whether, notwithstanding the act of Congress defining and limiting its powers, it was exempt from liability to the plaintiff for the value of the bonds if it refused, upon demand, to replace or surrender them at the same or a less price. . . . And from the time of such demand and its refusal to return the bonds to the vendor or owner, it becomes liable for their value upon grounds apart from the contract under which it obtained them. It could not rightfully hold them under or by virtue of the contract, and at the same time, refuse to comply with the terms of purchase. If the bank's want of power under the statute to make such a contract of purchase may be pleaded in bar of all claims against it based upon the contract -- and we are assuming, for the purposes of this case, that it may be -- it is bound, upon demand accompanied by a tender back of the price it paid, to surrender the bonds to its vendor. The bank, in this case, insisting that it obtained the bonds of the plaintiff in violation of the act of Congress, is bound, upon being made whole, to return them to him. No exemption or immunity from this principle of right and duty is given by the National Banking Act. 'The obligation to do justice,' this Court said in Marsh v. Fulton County, 10 Wall. 676, 77 U. S. 684,"
"rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independently of any statute, will compel restitution or compensation."
use in its business and for its benefit money obtained by one of its officers from another bank, under the pretense of a loan, and be discharged from liability therefor upon the ground that it could not itself have directly borrowed from the other bank the money so obtained and used. There is nothing in the acts of Congress authorizing or permitting a national bank to appropriate and use the money or property of others for its benefit without liability for so doing."
"A contract ultra vires being unlawful and void not because it is, in itself, immoral, but because the corporation, by the law of its creation, is incapable of making it, the courts, while refusing to maintain any action upon the unlawful contract, have always striven to do justice between the parties, so far as could be done consistently with adherence to law, by permitting property or money, parted with on the faith of the unlawful contract, to be recovered back, or compensation to be made for it. In such case, however, the action is not maintained upon the unlawful contract, nor according to its terms, but on an implied contract of the defendant to return, or, failing to do that, to make compensation for, property or money which it has no right to retain. To maintain such an action is not to affirm, but to disaffirm, the unlawful contract."
"The right to a recovery of the property transferred under an illegal contract is founded upon the implied promise to return or to make compensation for it."
We need not go farther. It is entirely clear that the judgment against the defendant bank -- which came into the possession of the property and was subject to the liabilities of the Central National Bank -- was consistent with sound legal principles and was intrinsically right, even if the guaranty in question was beyond the power of the guaranteeing bank under the national banking statutes. Whatever may be said as to the validity of the written guaranty, now alleged to be illegal, the judgment can be supported as based wholly on the implied contract, which made it the duty of the Central National Bank, under the facts disclosed, to account to the Cooper Exchange Bank for the money obtained from the latter in execution of the agreement made by the former with the borrower.
* Merchants' Bank v. State Bank, 10 Wall 604, 77 U. S. 644; United States v. State Bank, 96 U. S. 30, 96 U. S. 36; Louisiana v. Wood, 102 U. S. 294; Parkersburg v. Brown, 106 U. S. 487, 106 U. S. 503; Read v. Plattsmouth, 107 U. S. 568; Ditty v. Dominion National Bank of Bristol, 43 U.S.App. 613, 615; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268; Perkins v. Boothby, 71 Me. 94, 97; Bank of Lakin v. National Bank, 57 Kan. 183.

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(1) Parol evidence is inadmissible to interpret the written contract.–Parol evidence is anything that is outside of the four written corners of the piece of paper that the contract is actually written on. This could mean conversations that you had over the telephone or notes written on a dinner napkin at a restaurant you were eating at during contract negotiations. The only time this outside evidence (“parol evidence”)should come in to interpret the meaning of the written contract is if it the written contract is somehow ambiguous (unclear) and it is obvious that the written contract wasn’t intended to represent the entire agreement.
Can I Collect Attorney’s Fees In My Breach Of Contract Lawsuit Where I Am Owed Some Money?
Many commercial contract agreements have provisions for attorney’s fees in the event one party breaches the contract. The question is: what does Georgia law say about collecting attorney’s fees from a contract? The Official Code of Georgia Annotated law, O.C.G.A. § 13-1-11, talks about the validity and enforcement of obligations to pay such fees.
(1) If your contract provides for attorneys fees in some specific percent of the principle and interest it will be valid and enforceable, but you can never charge over 15 percent of the principal and interest.
(2) If the term in the contract just doesn’t specify a percent, then the provision will be interpreted to mean 15 percent of the first $500.00 of principal and interest and 10 percent of the remainder.
(3) You need to first notify the person who owes you the money in writing that they have ten days after receiving the notice to pay the principal and interest they owe without having to pay for attorney’s fees. If they pay the principal and interest in full before ten days then they won’t be obligated to pay attorney’s fees. If the person who owes you the money refuses to receive delivery of your notice, it will still be considered giving notice.
You do however need to make sure you request the attorney’s fees in your demand letter because if you don’t include any reference to the attorney fees provision in your contract, then you have no right to them. And, if you need to sue to collect the money you are owed, a court cannot award you them either if you never provided notice. E.g. Quintanilla v. Rathur, 227 Ga. App. 788, 490 S.E.2d 471 (1997). Trust Assoc. v. Snead, 253 Ga. App. 475, 559 S.E.2d 502 (2002).
Since you do need an attorney to collect “attorney’s fees,” you do need to make sure you have competent legal counsel representing you in your business dispute involving a breach of contract.
But this is a good thing. Using an attorney’s fees provision is a good way to make sure you cover the cost of your legal fees in the event you get into a business dispute. Having an attorney to help you navigate complex Georgia law is much better than going it alone. In fact, going it alone is the best way to end up in a bad situation. Unfortunately, many times our business clients come in after their situation leaves them with no choice other than retaining legal counsel.
Hire an attorney who can set up preventative measures that place your business in the strongest financial and legal position possible. Smart business owners know this and know that retaining an attorney in order to set up their business to ensure that preventative measures are in place is the best way to save money and make money down the road. For example, it is key that competent legal counsel draft your contract in order to carefully preserve your legal rights. Not only to protect your business interests, but also so they can do the ” smaller things” ensuring that your contract allows you to collect attorney’s fees in the event you must go to court for a breach. These “smaller things” end up being huge, in the long run.
1. Executed Contract: This means that both parties to the contract have done what they are supposed to do. For example, if you pay me $2000 to deliver some cows, chickens, and horses to your farm and I do it, we have an “executed contract.” This means you did what you were supposed to do (pay me the money) and I did what I was supposed to do (deliver the farm animals.) There is nothing left to be done. O.C.G.A. § 13-1-2.
2. Executory Contract: Now let’s say that you paid me the $2000.00 and I delivered you the cows but I still had to deliver the chickens and horses. This is an executory contract which means that something still remains to be done by one of the parties to the contract. O.C.G.A. § 13-1-2.
4. Specialty Contract: This is just a fancy term for a “contract under seal” which is rarely done, but is considered a formal contract of “higher dignity” and is also subject to a longer statute of limitations. O.C.G.A. § 13-1-4.
Anytime it is necessary to enter into a contract with another party or enter into a business relationship, it is worth doing it right! The law can be very technical and you want to make sure that in the event of a future misunderstanding or dispute that the contract will be interpreted by a judge in a way that favors you. The only way to insure this is to seek legal counsel prior to entering into a contract.
In Georgia, and everywhere, as too many employers know, employees solicit (attempt to steal) clients from their former employer. There exist obvious and significant financial and professional incentives for employers to prevent this from happening. The answer is a well drafted non solicitation agreement, amongst other safeguards. The problem is that many non solicitation agreements are poorly drafted, because whoever drafted the agreement failed to take into account applicable, and stringent, Georgia laws. In the world of non compete/solicitation agreements, Georgia law is notorious for being extremely unfavorable to employers. And although the Georgia legislature passed employer-friendly legislation (HB 173) in this area, and Governor Sonny Perdue signed that legislation into law, voters must still amend the Georgia Constitution so that the legislature has the power to make HB 173 actual law. That may be difficult.
Regardless, Georgia courts, currently, strictly construe non solicitation agreements. That means: if any potion of your non compete/non solicitation agreement is held to be invalid, the entire agreement is void.
We have written about non compete and non solicitation agreements before on this blog. Today, we are writing this entry to give you a few considerations when reviewing or attempting to draft your own non solicitation clause, although we highly recommend that you seek a good lawyer who has experience in this area to help you with drafting these types of agreements; the stakes are too high to rely on a poorly drafted agreement made by someone who is not familiar with Georgia law.
The law: “Georgia law is clear that unless the non-solicit covenant pertains to those clients with whom the employee had a business relationship during the term of the agreement, the non solicit covenant must contain a territorial restriction.” Trujillo v. Great Southern Equipment Sales, LLC, citing Advance Technology Consultants v RoadTrac, 250 Ga. App 317.
As you can read, the employer started off great, by restricting the scope of the clause to clients that the employee truly had contact with. But then the non solicitation clause went awry of strict Georgia law, by stating that the employee could not solicit clients that he or she had gained confidential or proprietary information about, by merely working for the employer. While you may think that’s a reasonable restriction, Georgia courts do not.
The Trujillo court reasoned that the language pertaining to confidential and proprietary information did not constitute a valid confidentiality provision or a “reiteration” of the confidentiality clause found in Trujillo’s contract. Rather that language, in the Court’s opinion, constituted an impermissible attempt by the employer to broaden the class of customers (clients) whom Trujillo could not solicit. As a result, the court stated–and this is what really hurts employers– “because the non-solicitation clause was unenforceable, the non competition clause included in the agreement was likewise unenforceable.” That’s a result that you as an employer do not want.
What lessons can be learned? First, get a good lawyer that knows Georgia law in the area of non compete non solicitation agreements. Second, regardless if you’re an attorney or not, don’t try to be “slick” when drafting these agreements. The Trujillo court made it clear: just because you do not use the red-flag term all clients does not mean that you can avoid the harsh and scrutinizing results of Georgia law. Moreover, understand fully that if you decide to use broad language such as all clients, strongly consider placing a geographical limitation within the non solicitation clause.
Additionally, understand that non solicitation agreements do not mean that a client cannot solicit your employee– this area of law is tricky and involves other complex legal issues.
Ultimately, when you attempt to use a non solicitation agreement against an employee to protect your business interest, your success will depend on the facts of your case as applied to Georgia law. You need a good lawyer.


The People of the State of Colorado, Plaintiff-Appellee, v. Tristan Toler, Defendant-Appellant.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE VOGT. Rothenberg and Taubman, JJ., concur.
Defendant, Tristan Toler, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. We reverse and remand for a new trial.
Defendant shot and killed the victim after the victim and the victim’s cousin had chased him and another youth into a third party’s fenced yard, believing that the youths had stolen a car stereo. Defendant’s companion climbed over the eight-foot fence and escaped, but defendant was still in the yard when the victim and his cousin ran into the yard. At trial, defendant claimed that he had fired his gun in self-defense, acting out of fear when he saw the victim reach for what defendant thought was a gun.
On appeal, defendant contends that the trial court erred in instructing the jury, as part of the self-defense instruction, that he was not required to retreat to a position of no escape in order to claim the right to self-defense if he “was where he had a right to be.” Specifically, he argues that inclusion of this language, which is not in the self-defense statute, 18-1-704, C.R.S. 1997, may have induced the jurors to conclude that he had lost his right of self-defense because he was on someone else’s property when he exercised that right. We agree.
The first sentence of the quoted paragraph tracks the language of 18-1-704(3)(a) & (b), C.R.S. 1997. The second sentence is not in the statute, but is taken verbatim from COLJI-Crim. No. 7:68-7(15)(1983). That pattern jury instruction states a limitation on the common-law “retreat to the wall” doctrine that was first recognized in Colorado in Boykin v. People, 22 Colo. 496, 45 P. 419 (1896). In Boykin, a Denver police officer had shot an Arapahoe County deputy sheriff while trying to arrest him. The supreme court held that a defendant who is “where he has a right to be, as, for example, a police officer engaged in making an arrest,” and who did not provoke the assault, is not obliged to retreat before defending himself. Boykin v. People, supra, 22 Colo. at 504, 45 P. at 422.
of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
Sections 18-1-704(2) and 18-1-704(3), C.R.S. 1997, state the exceptions to the general rule of 18-1-704(1). However, the exceptions do not include a situation in which the person is not “where he had a right to be.” Nor is such a limitation on the right of self-defense found anywhere else in the statute.
COLJI-Crim. No. 7:68-7(15), the source of the challenged language included in the instruction in this case, has been characterized as having been “codified in 18-1-704(3)(b).” People v. Willner, 879 P.2d 19 (Colo. 1994) (fn. 9). However, 18-1-704(3)(b) in fact codifies only the “initial aggressor” limitation, not the “where he had a right to be” limitation found in the pattern jury instruction and in Boykin.
We acknowledge that since 1971 the supreme court has cited both COLJI-Crim. No. 7:68-7(15) and the Boykin excerpt with the “where he has a right to be” language without suggesting that this limiting language was inconsistent with 18-1-704 or otherwise incorrect. However, in Idrogo v. People, 818 P.2d 752 (Colo. 1991), which quotes Boykin, the issue was whether the jury should have been instructed that defendant need not have retreated before using deadly force if he was not the initial aggressor. In People v. Willner, supra, which quotes the pattern jury instruction in a footnote, the supreme court upheld the trial court’s decision to give an instruction based on 18-1-704 rather than defendant’s tendered instruction based on the pattern instruction. Whether the “where he has a right to be” language remains a correct statement of the law was not an issue in either case. Nor was the issue presented or decided in People v. Watson, 671 P.2d 973 (Colo. App. 1983), which is cited in the pattern jury instructions as the authority for COLJI-Crim. No. 7:68-7(15).
Criminal statutes are to be strictly construed in favor of the accused, People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977) (construing statutory provisions relating to affirmative defense of voluntary intoxication), and cannot be extended either by implication or construction. People v. Olinger, 39 Colo. App. 491, 566 P.2d 1367 (1977). Although we are not precluded from reliance on the common law to aid in construing the criminal code, when statutory meaning is clear, we must give effect to that meaning. People v. Hare, 782 P.2d 831 (Colo. App. 1989), aff’d, 800 P.2d 1317 (Colo. 1990).
Where the General Assembly has spelled out the circumstances in which a person may not use physical force to defend himself or herself, we will not add an additional limitation beyond those expressly set forth in the statute.
We therefore hold that, because the instruction imposed a limitation on the right to claim self-defense that is not in the self-defense statute, it was error to instruct the jury that defendant had to be “where he had a right to be” before he could employ force in his own defense without first retreating.
He does not get the self-defense claim for yet another reason. He also wasn’t in a place where he was supposed to be. He was in somebody else’s yard. He doesn’t get it for that reason.
It cannot be determined whether the jury rejected defendant’s self-defense claim because it found that he was not where he had a right to be, or for some other reason. Because we cannot say with any fair assurance that the erroneous instruction did not substantially influence the verdict or impair the fairness of the trial, the error cannot be deemed harmless. See Lybarger v. People, 807 P.2d 570 (Colo. 1991).
Defendant raises additional challenges to the jury instructions given in his case. Because certain of the issues he raises may arise on remand, we address them here.
Defendant contends that the court erred in refusing to instruct the jury that the “reasonable person” referenced in the self-defense instruction must be measured by a subjective, not an objective, standard. We do not agree.
Self-defense under §18-1-704 takes into account both the reasonable belief and the actual belief of the defendant. People v. Willner, 879 P.2d 19 (Colo. 1994). A court may properly refuse to give an instruction which calls only for a subjective test. See Bustamonte v. People, 157 Colo. 146, 401 P.2d 597 (1965).
A “reasonable person” under Instruction No. is subjective. The standard is a reasonable person in Tristan Toler’s situation and circumstance. All circumstances must be weighed in determining whether Tristan Toler acted reasonably in this situation.
You must weigh all relevant circumstances to determine whether a person asserting the defense of self-defense has acted as a reasonable person would act in similar circumstances.
This language is consistent with Sanchez v. People, 820 P.2d 1103, 1108 (Colo. 1991) (“Fact finder must weigh all relevant circumstances to determine whether a person asserting the defense of self-defense has acted as a reasonable person wuld act in similar circumstances”). The trial court did not err in giving the jury this instruction rather than the instruction tendered by defendant.
Defendant also contends that the trial court erred in refusing to instruct the jury that fists can be a deadly weapon. Because we are reversing on a different issue, we need not decide whether the instruction given by the court in place of defendant’s tendered instruction sufficiently encompassed “fists” within its language. However, since this issue may arise on remand, we note that the supreme court has recognized that fists can be deadly weapons if, in the manner they are used or intended to be used, they are capable of producing death or serious bodily injury. People v. Ross, 831 P.2d 1310 (Colo. 1992). If defendant so requests, the jury on remand should be instructed accordingly.
We do not address defendant’s remaining contentions because they are unlikely to arise on remand.
The judgment is reversed and the cause is remanded for a new trial.
JUDGE ROTHENBERG and JUDGE TAUBMAN concur.


Federal Rights - Mental Health Advocacy Inc.
Below is an overview of the Titles of the Americans with Disabilities Act known as the ADA. These will help you understand your federal rights. All 50 states and its territories are bound by federal law.
See 42 U.S.C. §§ 12111–12117.
Speech cards used by President George H. W. Bush at the signing ceremony of the Americans with Disabilities Act (ADA) on July 26, 1990.
The ADA states that a covered entity shall not discriminate against a qualified individual with a disability. This applies to job application procedures, hiring, advancement and discharge of employees, workers' compensation, job training, and other terms, conditions, and privileges of employment. Covered entity can refer to an employment agency, labor organization, or joint labor-management committee, and is generally an employer engaged in interstate commerce and having 15 or more workers. Discrimination may include, among other things, limiting or classifying a job applicant or employee in an adverse way, denying employment opportunities to people who truly qualify, or not making reasonable accommodations to the known physical or mental limitations of disabled employees, not advancing employees with disabilities in the business, and/or not providing needed accommodations in training. Employers can use medical entrance examinations for applicants, after making the job offer, only if all applicants (regardless of disability) must take it and it is treated as a confidential medical record. Qualified individuals do not include any employee or applicant who is currently engaging in the illegal use of drugs when that usage is the basis for the employer's actions.
Part of Title I was found unconstitutional by the United States Supreme Court as it pertains to states in the case of Board of Trustees of the University of Alabama v. Garrett as violating the sovereign immunity rights of the several states as specified by the Eleventh Amendment to the United States Constitution. The provision allowing private suits against states for money damages was invalidated.
Title II prohibits disability discrimination by all public entities at the local (i.e. school district, municipal, city, county) and state level. Public entities must comply with Title II regulations by the U.S. Department of Justice. These regulations cover access to all programs and services offered by the entity. Access includes physical access described in the ADA Standards for Accessible Design and programmatic access that might be obstructed by discriminatory policies or procedures of the entity.
Title II also applies to public transportation provided by public entities through regulations by the U.S. Department of Transportation. It includes the National Railroad Passenger Corporation, along with all other commuter authorities. This section requires the provision of para-transit services by public entities that provide fixed route services.
Under Title III, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. "Public accommodations" include most places of lodging (such as inns and hotels), recreation, transportation, education, and dining, along with stores, care providers, and places of public displays, among other things.
Under Title III of the ADA, all "new construction" (construction, modification or alterations) after the effective date of the ADA (approximately July 1992) must be fully compliant with the Americans With Disabilities Act Accessibility Guidelines ("ADAAG") found in the Code of Federal Regulations at 28 C.F.R., Part 36, Appendix "A."
Title III also has application to existing facilities. One of the definitions of "discrimination" under Title III of the ADA is a "failure to remove" architectural barriers in existing facilities. See 42 U.S.C. § 12182(b)(2)(A)(iv). This means that even facilities that have not been modified or altered in any way after the ADA was passed still have obligations. The standard is whether "removing barriers" (typically defined as bringing a condition into compliance with the ADAAG) is "readily achievable," defined as "easily accomplished without much difficulty or expense."
There are exceptions to this title; many private clubs and religious organizations may not be bound by Title III. With regard to historic properties (those properties that are listed or that are eligible for listing in the National Register of Historic Places, or properties designated as historic under State or local law), those facilities must still comply with the provisions of Title III of the ADA to the "maximum extent feasible" but if following the usual standards would "threaten to destroy the historic significance of a feature of the building" then alternative standards may be used. Nonetheless, as Frank Bowe predicted when he testified as the lead witness on Title III in the Senate hearings leading up to enactment, the fact that Title III calls for accessibility in, and alterations to, thousands of stores, restaurants, hotels, etc., in thousands of communities across the U.S. means that this Title probably has had more effect on the lives of more Americans with disabilities than any other ADA title.
Title IV of the ADA amended the landmark Communications Act of 1934 primarily by adding section 47 U.S.C. § 225. This section requires that all telecommunications companies in the U.S. take steps to ensure functionally equivalent services for consumers with disabilities, notably those who are deaf or hard of hearing and those with speech impairments. When Title IV took effect in the early 1990s, it led to installation of public Teletypewriter (TTY) machines and other TDDs (Telecommunications Device for the Deaf). Title IV also led to creation, in all 50 States and the District of Columbia, of what were then called dual-party relay services and now are known as Telecommunications Relay Services (TRS), such as STS Relay. Today, many TRS-mediated calls are made over the Internet by consumers who use broadband connections. Some are Video Relay Service (VRS) calls, while others are text calls. In either variation, communication assistants translate between the signed/typed words of a consumer and the spoken words of others. In 2006, according to the Federal Communications Commission (FCC), VRS calls averaged two million minutes a month.
Title V includes technical provisions. It discusses, for example, the fact that nothing in the ADA amends, overrides or cancels anything in Section 504. Additionally, Title V includes an anti retaliation or coercion provision. The Technical Assistance Manual for the ADA explains it: "III-3.6000 Retaliation or coercion. Individuals who exercise their rights under the ADA, or assist others in exercising their rights, are protected from retaliation. The prohibition against retaliation or coercion applies broadly to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights . . . Any form of retaliation or coercion, including threats, intimidation, or interference, is prohibited if it is intended to interfere.
The ADA defines a covered disability as "a physical or mental impairment that substantially limits a major life activity." The Equal Employment Opportunity Commission (EEOC) was charged with interpreting the 1990 law with regard to discrimination in employment. Its regulations narrowed "substantially limits" to "significantly or severely restricts".
In 2008, effective January 1, 2009, the ADAAA broadened the interpretations and added to the ADA examples of "major life activities" including, but not limited to, "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working" as well as the operation of several specified "major bodily functions." The Act overturns a 1999 U.S. Supreme Court case which held that an employee was not disabled if the impairment could be corrected by mitigating measures; it specifically provides that such impairment must be determined without considering such ameliorative measures. Another court restriction overturned is the interpretation that an impairment that substantially limits one major life activity must also limit others to be considered a disability.
The ADAAA will undoubtedly lead to broader coverage of impaired employees. The United States House Committee on Education and Labor states that the amendment "makes it absolutely clear that the ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of disability". Required doctor visits are not to be held against anyone with a disability.
The ADA (1990) is unusual because more than a hundred groups dedicated to disability rights, civil rights, and social justice worked together to ensure its passage. Justin Dart, Jr. was a major organizer.
The debate over the Americans with Disabilities Act led Christian groups to take opposite positions. Some Christian groups, such as the Association of Christian Schools International, opposed the ADA in its original form. ACSI opposed the Act primarily because the ADA labeled religious institutions “public accommodations,” and thus would have required churches to make costly structural changes to ensure access for all. Ultimately, the cost argument advanced by ASCI and others prevailed in keeping religious institutions from being labeled as “public accommodations,” and thus churches were permitted to remain inaccessible if they choose.
In addition to opposing the ADA on grounds of cost, church groups like the National Association of Evangelicals testified against the ADA’s Title I (employment) provisions on grounds of religious liberty. The NAE felt that the regulation of the internal employment of churches was "... an improper intrusion [of] the federal government."
Many members of the business community opposed the passage of the Americans with Disabilities Act. Testifying before Congress, Greyhound Bus Lines stated that the Act had the potential to “deprive millions of people of affordable intercity public transportation and thousands of rural communities of their only link to the outside world.” The US Chamber of Congress argued that the costs of the ADA would be “enormous” and have “a disastrous impact on many small businesses struggling to survive”. The National Federation of Independent Businesses, an organization that lobbies for small businesses, called the ADA “a disaster for small business.” Pro-business conservative commentators joined in opposition, writing that the Americans with Disabilities Act was “an expensive headache to millions” that would not necessarily improve the lives of people with disabilities.
If the definition of disability is the inability to do the common daily tasks of life—getting out of bed, washing, dressing, eating, going to the bathroom—and working at one’s age level in school, I’ve never really been disabled.
People with disabilities represent a critical talent pool that is underserved and underutilized.
The ADA has been a frequent target of criticism. For example, a common claim is that individuals who are diagnosed with one of the so-called "lesser disabilities" are being "accommodated" when they should not be. On the other hand, court decisions have made necessary "an individualized assessment to prove that an impairment is protected under the ADA. Therefore, the plaintiff must offer evidence that the extent of the limitation caused by the impairment is substantial in terms of his or her own experience;" a medical diagnosis or physician's declaration of disability is no longer enough. Most people never have their discrimination cases heard in court because of the difficulty of getting past the first step.
Even those who support the intent of the law worry that it might have unintended consequences. Among other arguments, supporters hypothesize that the Act creates additional legal risks for employers who then quietly avoid hiring people with disabilities to avoid this risk. And such researchers claim to have documented a sharp drop in employment among individuals with a disability after passage of the Act. Others believe that the law has been ineffectual.
The ADA allows private plaintiffs to receive only injunctive relief (a court order requiring the public accommodation to remedy violations of the accessibility regulations) and attorneys' fees, and does not provide monetary rewards to private plaintiffs who sue non-compliant businesses. Unless a state law, such as the California Unruh Civil Rights Act, provides for monetary damages to private plaintiffs, persons with disabilities do not obtain direct financial benefits from suing businesses that violate the ADA.
There have been some notable cases regarding the ADA. For example, two major hotel room marketers (Expedia.com and Hotels.com) with their business presence on the Internet were sued because its customers with disabilities could not reserve hotel rooms through their websites without substantial extra efforts that persons without disabilities were not required to perform. These represent a major potential expansion of the ADA in that this, and other similar suits (known as "bricks vs. clicks"), seeks to expand the ADA's authority to cyberspace, where entities may not have actual physical facilities that are required to comply.
This is a case where a major retailer, Target Corp., was sued because their web designers failed to design its website to enable persons with low or no vision to use it.
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), was a United States Supreme Court case about Congress's enforcement powers under the Fourteenth Amendment to the Constitution. It decided that Title I of the Americans with Disabilities Act was unconstitutional insofar as it allowed states to be sued by private citizens for money damages.
Another example, filed in March 1999, claimed that the City of Sacramento failed to comply with the ADA when, while making public street improvements, it did not bring its sidewalks into compliance with the ADA. Certain issues were resolved in Federal Court. One issue, whether sidewalks were covered by the ADA, was appealed to the 9th Circuit Court of Appeals which ruled that sidewalks were a "program" under ADA and must be made accessible to persons with disabilities. The ruling was later appealed to the U.S. Supreme Court which refused to hear the case, letting stand the ruling of the 9th Circuit Court.
This was a case that was decided by the United States Supreme Court in 2005. The defendant argued that as a vessel flying the flag of a foreign nation was exempt from the requirements of the ADA. This argument was accepted by a federal court in Florida and, subsequently, the Fifth Circuit Court of Appeals. However, the U.S. Supreme Court reversed the ruling of the lower courts on the basis that Norwegian Cruise Lines was a business headquartered in the United States whose clients were predominantly Americans and, more importantly, operated out of port facilities throughout the United States.
This was a case before the United States Supreme Court in 1999. The two plaintiffs L.C. and E.W. were institutionalized in Georgia for diagnosed mental retardation and schizophrenia. Clinical assessments by the state determined that the plaintiffs could be appropriately treated in a community setting rather than the state institution. The plaintiffs sued the state of Georgia and the institution for being inappropriately treated and housed in the institutional setting rather than being treated in one of the state's community based treatment facilities.
The Supreme Court decided under Title II of the ADA that mental illness is a form of disability and therefore covered under the ADA, and that unjustified institutional isolation of a person with a disability is a form of discrimination because it "perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." The court added that "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."
One of the first major ADA lawsuits, Paralyzed Veterans of America (or “PVA”) v. Ellerbe Becket Architects and Engineers, Inc. , was focused on the wheelchair accessibility of a stadium project that was still in the design Phase, MCI Center in Washington, D.C.. Previous to this case, which was filed only five years after the ADA was passed, the DOJ was unable or unwilling to provide clarification on the distribution requirements for accessible wheelchair locations in large assembly spaces. While Section 4.33.3 of ADAAG makes reference to lines of sight, no specific reference is made to seeing over standing patrons. The MCI Center, designed by Ellerbe Becket Architects & Engineers, was designed with too few wheelchair and companion seats, and the ones that were included did not provide sight lines that would enable the wheelchair user to view the playing area while the spectators in front of them were standing. This case and another related case established precedent on seat distribution and sight lines issues for ADA enforcement that continues to present day.
Acemoglu, Daron & Angrist, Joshua D. (2001). Consequences of Employment Protection? The Case of the Americans with Disabilities Act. Journal of Political Economy, volume 109 (2001), pages 915–957.
Schall, Carol M. (Jun 1998). The Americans with Disabilities Act—Are We Keeping Our Promise? An Analysis of the Effect of the ADA on the Employment of Persons with Disabilities. Journal of Vocational Rehabilitation, v10 n3 p191-203.
O’Brien, Ruth, ed. Voices from the Edge: Narratives about the Americans with Disabilities Act. New York: Oxford, 2004.
3. ^ "President Bush Signs ADA Changes into Law". HR.BLR.com. 2008-09-25. http://hr.blr.com/news.aspx?id=78926.
5. ^ a b c "ADA Amendments Act (ADAAA)—What Employers Need to Know". HR.BLR.com. 2008. http://www.blr.com/information-ada/.
14. ^ "Should the Senate Approve the Americans with Disabilities Act of 1989?" Congressional Digest December (1989): 297.
16. ^ "Should the Senate Approve the Americans with Disabilities Act of 1989?" Congressional Digest December (1989): 208.
20. ^ O'Brien, Ruth, ed (2004). Voices from the Edge: Narratives about the Americans with Disabilities Act. Oxford University Press US. ISBN 978-0-19-515687-4. http://books.google.com/?id=bPwrzd6nthUC&pg=PA8&dq=voices+from+the+Edge. Retrieved 2009-05-01.
22. ^ Vierling, Lewis E. (January 2004). "Proving disability remains difficult". The Case Manager 15 (1): 25–29. doi:10.1016/j.casemgr.2003.10.013. PMID 14961012. http://www.thecsmgr.com/article/PIIS1061925903003096/fulltext. Retrieved 2009-02-21.
26. ^ a b c Stateman, Alison (December 29, 2008). "Lawsuits by the Disabled: Abuse of the System?". TIME. http://www.time.com/time/nation/article/0,8599,1866666,00.html. Retrieved 2008-12-29.
27. ^ Parr v. L & L Drive-Inn Restaurant (D. Hawaii 2000) 96 F.Supp.2d 1065, 1082, citing and quoting, Committee Print, Vol. II, 101st Cong., 2d Sess., at 1481-82 (1990); 42 U.S.C. § 12101(b)(2); S.Rep. No. 101-116, at 15 (1989).
28. ^ Molski v. Evergreen Dynasty Corp., (9th Cir. 2007) 500 F.3d 1047, 1062; D'Lil v. Best Western Encina Lodge & Suites (9th Cir. 2008) 538 F.3d 1031, 1040.
33. ^ Erb, Robin. “U-M fans rave about new seats for disabled.” Detroit Free Press. 9 September 2008.
34. ^ Wolffe, Jerry. “New wheelchair seats will be full at U-M’s Big House.” The Oakland Press. 14 September 2008.


We, at The Roberts Law Firm, understand that hiring an attorney is a serious matter and that you may have important questions about your potential case. Below we have provided you with the answers to a number of commonly asked questions. These answers are general in nature, however, and we strongly recommend that you consult an Orlando family law attorney prior to acting on any of the information listed below. Remember, every case is different and it is imperative that a trained legal professional evaluate your case and advise you on your best course of action. Contact us at 407-426-6999 to set up an initial consultation to discuss your case today.
I am Going Through a Divorce...Who gets the Pet?
What are the requirements for filing for divorce in Florida?
How much does it cost to file for divorce? Do court costs and filing fees differ in contested and uncontested divorce cases?
Where can I find information about Florida’s “Parent Education and Family Stabilization” courses?
Must I hire an attorney to represent me in my divorce case?
Can I relocate with my children out of state before or during a divorce?
Can I stay in my home during the divorce?
What happens where my spouse and I started a business during our marriage and we are now contemplating divorce?
What should I do if my spouse becomes violent?
How will our debts be handled during the divorce?
Can I list our home for sale during a divorce?
During a divorce, can I spend the money from a bank account where the account is in my name only?
If my spouse and I divorce, will I have to split my retirement plan with my spouse?
Must I keep my spouse on my health insurance plan during a divorce?
How long it takes to get a divorce will depend on whether your case is contested or uncontested. In an uncontested divorce case, both parties have reached an agreement regarding all matters including division of marital and non-marital property, debts, alimony, child custody, support and visitation or time-sharing. Often parties will enter into a written settlement agreement, with the help of their attorney, prior to filing for their uncontested divorce. From the time of filing until entry of a final judgment of dissolution of marriage, an uncontested divorce could take as little as four to five weeks. If the matter is contested, however, parties are realistically looking at six months to a year or more from the time of filing, particularly if minor children are involved. In some Florida counties, parties with minor children will be required to attend mediation and Florida law now requires that parties attend a “Parent Education and Family Stabilization” course prior to entry of a final judgment.
Each state has certain residency and domicile requirements for purposes of filing for divorce. In Florida, in order to file for divorce, one party to a marriage must be a resident of the state for the six-month period immediately preceding the filing of the petition for dissolution. Generally, in most cases, a party may obtain a divorce simply by filing the requisite pleadings. If you are a Florida resident currently in the military, the fact that you are stationed outside of Florida will not detract from your Florida residency status.
Filing fees are set forth in the Florida Statutes and the current fee for the filing of a divorce case is $408.00. The filing fee for contested and uncontested divorce cases is the same. Additional costs may be associated with the filing of a contested divorce, however, including fees for service of process, mediation, and the “Parent Education and Family Stabilization” course.
Parties are required by §61.21, Florida Statutes, to attend a “Parent Education and Family Stabilization” course, which must be completed prior to entry of the final judgment of dissolution of marriage. The course may be taken online or in a local class and information is available online, through the Clerk of Court, or from our offices. The course is approximately four hours long and must be approved by the Department of Children and Families. At the end of the completed course, you will be issued a certificate of completion, which must be filed in your divorce case.
It is not required that you hire a Orlando divorce attorney and you may choose to represent yourself. Florida offers self-help family law forms both online and in the office of your local courthouse. Such forms can appear deceptively simple, however, particularly where certain issues may be contested; often we see clients who initially attempted to represent themselves hoping to save money, only to spend substantially more money in the long run. Particularly if you have minor children and/or real property, your final judgment of dissolution of marriage will govern numerous complicated issues including division of real property, personal property and debts, child custody, support and time-sharing, alimony, health care, taxes and more. An experienced family law attorney can ensure that your divorce is handled properly and efficiently. Contact our office today to discuss payment options we can offer to those on all types of budgets.
Upon filing for divorce in Orange or Osceola County, Florida, you and your spouse will immediately be subject to a standing temporary Administrative Order No. 2004-05-03, which precludes you from changing the residence of your children from the school zone in which the marital home is currently located without written agreement of both parties or an order of the court. Section 61.13001, F.S., governs relocation with a child, whether before, during or after divorce. The statute defines relocation as a move of at least fifty (50) miles from the marital residence, and for at least sixty (60) consecutive days (not including a temporary absence for purposes of vacation, education, or for the health care for the child). Under the statute, if no order as to residency of the child has previously been entered, the parties may enter into a written agreement permitting relocation so long as the agreement satisfies the statutory mandates. If a divorce has been filed or an order has previously been entered as to time-sharing, the relocation order must be ratified by the court. In the absence of an agreement between the parties, the parent wishing to relocate must notify the other parent of the proposed relocation as required by the statute. The other parent may object, but must do so prior to the deadline set forth in the statute. If an objection is filed, the party wishing to relocate must obtain court permission prior to relocating. Attempting to relocate without complying with the statutory notice and other requirements can subject the offending party to contempt, an order for return of the child, and other consequences. If permanent relocation is permitted, upon a finding of best interests of the child, the court will enter a new order governing time-sharing, including additional access, visitation, telephone, internet, webcam, the allocation of travel costs, and other arrangements necessary to ensure frequent and meaningful contact with the non-relocating parent. If you are considering relocating prior to filing for divorce, keep in mind that you will have to meet the residency requirements (generally three to twelve months) of your new home state in order to be eligible to file. Every case is different, but if you are going to move more than an hour’s drive away, you will probably need either your spouse’s consent or the judge’s permission. For more information about relocating with your child after divorce read our article "Child Custody and Relocation: What to Consider".
In 2010, statistics showed that 67% of the time when parents first separate, children remained in the marital home with the mother. Whether you stay in your home during a divorce depends on the particular facts of your situation. In Florida, if you and your spouse jointly own your home as tenants by the entireties, the house is a marital asset and neither you nor your spouse would be abandoning any rights to the property by moving out during the divorce proceedings. If you decide to stay in the house during your divorce, you may potentially receive assistance from your spouse, including receipt of child support or alimony, to help offset mortgage payments and other home related expenses. However, you will still have an obligation as a co-owner of the property to help contribute to the monthly payments and upkeep of a jointly owned home. It should be noted that pursuant to § 61.075(1)(h), F.S., in contemplating an unequal distribution of the parties’ assets, the court may consider one spouse’s desire to retain the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so. The court must first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home. If the court finds it to be in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court order, you could be permitted to remain in the home even after the divorce is final. Your attorney can best advise you on such matters after reviewing the specific facts in your case.
In Florida, the equitable distribution of assets in a divorce is governed by § 61.075, F.S. As a general rule, property acquired by the parties during the course of their marriage, including a business begun during the marriage, will be divided equally unless the court determines, after considering certain statutory factors, that some justification exists for an unequal distribution between the parties. While a business acquired or begun during the marriage is generally a marital asset, a company begun during the marriage using solely non-marital funds, may be determined to be a non-marital asset and may not be subject to equitable distribution. At least one Florida court has held, furthermore, that it was error for a trial court to order parties to remain co-owners of a business and to continue to work together after the dissolution if they did not wish to do so. See Manolakos v. Manolakos, 871 So.2d 258 (Fla. 4th DCA 2004). Pursuant to § 61.075(1)(f), the court may consider a spouse’s desire to retain his or her interest in or ownership of a jointly-owned business, corporation, or professional practice, intact and free from any claim or interference by the other spouse. The court must also consider, however, the contribution during the marriage of both spouses to the acquisition, enhancement, production of income, improvement of, or incurring of liabilities to, such a jointly-owned business. See § 61.075(1)(g). In valuing a business for purposes of equitable distribution, the court must calculate fair market value by measuring the value of the business’ tangible assets (including book value, accounts receivables, physical assets and liabilities), any enhancement in the value of the assets during the marriage, and the value of goodwill (the transferable likelihood of increased earnings). If marital funds or the efforts of the parties were used to enhance the value of the business, this enhanced value would also become a marital asset subject to equitable distribution. Even though a spouse may not be the key decision-maker in a business, if spousal efforts contribute to a closely held corporation’s overall success, the appreciation is a marital asset to be considered by the court. Keep in mind, however, that corporate assets may not be awarded to a spouse without joining the corporation as a party to the dissolution of marriage proceedings. Porcaro v. Porcaro, 531 So.2d 407 (Fla. 2d DCA 1988). Valuing and dividing a business acquired or begun during a marriage can be tricky. If you are contemplating divorce and have questions regarding your rights and interests in a jointly owned or family business, it is imperative that you contact an attorney experienced in both family and business law matters. Our highly experienced Central Florida divorce attorneys are available to answer your questions; call us to today at 407-426-6999 to schedule a consultation.
If you or your child have been hurt or injured and need immediate assistance, call 911. Domestic violence is a pattern of behavior, whether physical, emotional, sexual, psychological, or economic, used by abusers to get and to keep control in their relationships. While domestic violence can occur against a child, a parent, an elderly person or other family member, it is most often seen between spouses or those involved in intimate relationships, past or present. If you are a victim of domestic violence, there are a number of programs in Florida to assist you. To find a program serving your area call the toll-free Florida Domestic Violence Hotline at 1-800-500-1119 or 1-800-621-4202 (TTY) or go online to www.fcadv.org. Another website which offers helpful information is: www.dcf.state.fl.us. If you need a safe place to stay or are in need of advice and support, contact your local center for victims of domestic violence. Your local center can provide you with outreach services; all services are confidential and will be provided at no cost to you or your family. The advocates in these centers are trained to provide you with assistance and referrals for issues including housing, finances, legal, and health-care questions. If you wish to file for a restraining order or injunction, you should contact the clerk of court or an attorney to assist you. A temporary domestic violence restraining order can be issued by the court in a matter of hours pursuant to § 741.30, F.S. The Florida Attorney General’s Office can also refer you to crime victim programs which can provide confidential relocation for yourself and your family. For further information call 1-800-226-6667 or go to http://myfloridalegal.com/victims. The attorneys and staff at The Roberts Family Law Firm are also available at any time to help you in obtaining confidential assistance and support – your safety is our primary concern. Please contact us today at 407-426-6999 for advice and legal counseling in any matters concerning domestic violence.
Marital debts, like marital assets, will be divided according to the law on equitable distribution as set forth in § 61.075, F.S. Marital debts include liabilities incurred during the marriage, whether individually by either spouse or jointly by both. Non-marital debts include liabilities incurred by either party prior to the marriage. Parties in an uncontested proceeding who divide their debts between themselves may enter into a Property Settlement Agreement which will be incorporated into the final judgment of their divorce. In a contested proceeding where parties are unable to reach an agreement on their own, the court will set apart each party’s non-marital debts and will distribute their marital debts in a judgment or order containing written factual findings based on competent substantial evidence. The cut-off date for determining the identification or classification of marital debts is the earlier of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date the petition for dissolution is filed. The date for determining the amount of marital debts is the date or dates as the judge determines is just and equitable under the specific circumstances. Please be aware that even if you are not held in your divorce to be legally responsible for all or part of a joint debt, your credit card company or other creditor may still seek to collect the debt from you.
No. The marital home may not be listed for sale during a divorce in the absence of an agreement signed by both parties or by order of the court. Upon filing for divorce in Orange or Osceola County, Florida, you and your spouse will immediately be subject to a standing temporary Administrative Order No. 2004-05-03, which precludes you from disposing of any asset, marital or non-marital. You will furthermore be precluded from adding any additional mortgage or from failing to take care of the home during the pendency of the divorce.
Generally speaking, during a divorce you may spend the money from a bank account which is titled in your name only. If you file for divorce in Orange or Osceola County, immediately upon filing the petition, you will be subject to a standing temporary Administrative Order No. 2004-05-03 which allows parties to “spend their incomes in the ordinary course of their personal and family affairs.” Please be aware, however, that you will be required to account for the use of such funds or income from the time of separation. The use of such funds and income must be justified “as reasonable and necessary for the necessities of the party or to preserve marital assts or pay marital debts.” Both parties will be accountable for all money or property in their possession both during the marriage and after separation.
Section 61.076, F.S. governs the distribution of pension or retirement assets in a dissolution of marriage. Generally pension rights (whether vested or unvested) and other retirement benefits (including profit-sharing, annuity, deferred compensation, and insurance plans or programs) are considered to be marital assets and will be divided between the parties equally subject to equitable distribution. Such assets, like other marital assets, maybe be distributed differently if the court finds a justification for an unequal distribution based on relevant factors as set forth in the equitable distribution statute, § 61.075, F.S. Please keep in mind that significant fees and tax penalties can be incurred for the early withdrawal of such funds. Your attorney can best advise you on such matters after reviewing the particular facts in your case.
There are many things to consider during divorce, and maintaining health insurance coverage should be a priority, especially if children are involved. Often, one spouse has health insurance through his or her employer and the other spouse and children are covered under a family plan. Although a non-primary spouse may be permitted to remain on a family policy during divorce proceedings, after the divorce, the former spouse is no longer eligible to remain on the same health insurance policy and will be dropped by the insurance company. While your health insurance company may permit you to drop your spouse during divorce proceedings, please be aware that if you file for divorce in Orange or Osceola County you will be subject to a standing temporary Administrative Order No. 2004-05-03, which will preclude you from changing any insurance policies except by written agreement signed by both parties or order of the court. Upon your divorce, your spouse may be eligible for COBRA coverage (Consolidated Omnibus Budget Reconciliation Act). COBRA is a federal law which provides health insurance to anyone going through a divorce or legal separation from an employee that is currently covered by a health plan through a private-sector employer with 20 or more employees, employee organizations, or state or local governments. A former spouse wishing to take advantage of COBRA must contract the primary spouse’s health plan administrator within sixty days of the divorce. COBRA is expensive, however, and expires after 36 months or upon remarriage. For additional information you may contact EBSA at 1.866.444.EBSA (3272) or contact our Central Florida divorce attorneys in Orlando for an initial consultation!
To arrange a consultation with an experienced Orlando Divorce attorney who will protect your interests and advocate fiercely on your behalf, please contact The Roberts today at (407) 426-6999 or email us. We represent clients throughout Central Florida and have offices in Orlando and Kissimmee. Free parking on site.