Discounted Legal Documents at Sam’s Club?

According to the ABA Journal, Sam’s Club will be offering Discounted Legal Services to members of Sam’s Club, see the article here.   Also, you can follow the ABAJournal on twitter at @ABAJournal.

I have posted articles about my thoughts on universal legal documents, such as those offered through LegalZoom, you can see those here.

My chief concern has always been that universal legal forms that have not been drafted or reviewed by a lawyer for a particular clinet have huge pitfalls that non-lawyers intending on utilizing these forms just don’t know what to look for.

Simply put, that’s why you hire a lawyer – “you don’t know what you don’t know”

Back to the article…

According to the article, LegalZoom intends taking it a step further than just providing documents:

“The companies plan to develop “multiple legal solutions” for Sam’s Club members, but initially members will have a couple options, according to a LegalZoom press release and spokesperson Johanna Namir. They are:

• A “suite of estate planning products,” priced at $299, that includes a will or living trust, a power of attorney and a living will. Also included are a year of unlimited revisions and independent attorney consultations of up to a half hour each for personal first-time legal matters. The attorneys will review any documents under a 10-page limit. Additional legal work would be done at a discount of 25 percent off the lawyer’s regular rate.”

It will be interesting to see if Sam’s Club members utilize these services.

questions? comments?

Email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Business Law Update: One-Third of Top Business Websites Have Clauses to Restrict Lawsuits

Happy Friday all!
The ABAJournal Reported an article today headlined: One-third of top websites have clauses to restrict consumer lawsuits. You can see that article here
That’s right, people. If you want to sue these major companies, you need to demand “arbitration” – likely in the company’s home state, and county of incorporation.  If the company is feeling really aggressive, it’s arbitration clause might actually make you, the moving party, liable for all the arbitration costs.
Among the websites with lawsuit restrictions are:
Amazon, eBay, Match.com, OKCupid, Travelocity, the Wall Street Journal, Target and Domino’s Pizza, the story says.
Interestingly, according to the ABAJournal,
Facebook and Google, on the other hand, do not limit users’ right to sue.
I can only conjecture that Facebook and Google don’t see the need in including such “unfriendly” arbitration clauses. Let’s face it, if you are a person suing Google related to your usage of the online search engine, good luck with that lawsuit.
Are Website Terms and Conditions Enforceable?
I previously posted an article about terms and conditions in websites. Those that are in “browse wrap” – just a link at the bottom of the browser, can be easily overlooked by businesses submitting purchase orders, and consumers, alike.
Because they can be overlooked, arguments can be raised, sometimes successfully, that that the limitation of damages, or clauses compelling arbitration should not be enforced.  Businesses’ responses have, of course, been to make such “Terms and Conditions” more prominent on their websites, or require “click wrap” – the user to click their acceptance of the terms before proceeding further.
Simply put, if a business has its legal counsel doing their job, the business will make sure its interests are protected in drafting an enforceable and advantageous terms and conditions page that shifts liability to the end user – whether a consumer or business.
Take Away on Terms and Conditions
Implement Terms and Conditions
I recommend business clients to always include a Terms and Conditions page that is either attached to the back of their physical Purchase Orders, or is included in their Website and incorporated by reference.  The Terms and Conditions will, essentially, allocate risk and liability, on such items like:
  • warranties (what is the provider guaranteeing and what isn’t it?)
  • payment terms (when and how is payment accepted? Late fees?)
  • remedies  (what is your recourse in the event the goods aren’t what the buyer expected? Are your damages limited to a refund, or can you get related damages as well? Can attorney fees be covered?
  • Venue – (where can you bring your dispute? An arbitrator? Who pays the fees? Is the location of the arbitration specified?

Enforce Terms and Conditions

And of course, its important that a business enforces its terms.  I have had clients who have been sued before and forgot of their advantageous language in their terms and conditions.  If a business is sued and it waits too long in the litigation before raising its right to arbitration, the court very well might consider the business to have “waived its right” to arbitration. Although, “Waiver of a contractual right to arbitrate is disfavored” by the Courts. Best v Park W Galleries, Inc, No. 305317, 2013 WL 4766678 (Mich Ct App September 5, 2013), app den 495 Mich 979 (2014).
Questions? Comments?
email: Jeshua@dwlawpc.com
http://www.dwlawpc.com

Court Enters Order and $25 Million Judgment Against Work-at-Home Scheme

If a work-at-home business opportunity seems too good to be true, it probably is.
It most certainly is if it is a “Wealth Building Home Business Plan” called QuikSell.

A federal judge recently held that Zaken Corp of Thousand Oaks, California and its President Tiran Zaken made false and misleading statements in marketing work-at-home business opportunities and promising commissions to consumers, the Justice Department announced in its press release.

According to the Dept’s press release, “the court found that 110,000 consumers had bought the defendants’ program and “more than 99.8 percent never earned any commission whatsoever.”

The Zaken Corp. and Tiran Zaken lured customers with claims that purchasers could expect that “two to four hours a week working this business will earn participants an average of $3,000 to $6,000.”

They further claimed that “the average commission checks associates get … will be approximately $4,280!”

In the court’s written decision, Judge Pregerson of the Central District of California found that “fewer than one percent of consumers ever earned any income at all.”

The Court held that Zaken Corp violated the Federal Trade Commission Act by making false claims regarding the earnings potential of QuikSell.

The court also found that The Zaken Corp. and Tiran Zaken violated the Federal Trade Commission (FTC)’s Business Opportunity Rule, which requires sellers of business opportunities to provide specific, truthful information to help consumers evaluate a business opportunity prior to purchase.

Under Michigan law, this business Could have been prosecuted under the Michigan Consumer Protection Act, which protects consumers from these types of  “business opportunities.”

Questions? Comments?

email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Business Law Update: Jimmy John’s Non-Competes: Teenagers Can’t Deliver Sandwiches?

Above the Law is a legal blog that posts interesting news in the legal world. I had to comment on this latest one I saw:

“Jimmy John’s Serves Up Sandwiches And Oppressive Non-Compete Agreements.”

See the link:  or follow Above the Law on twitter: @atlblog

In Michigan, Non-Competes are enforceable to protect legitimate business interests.

MCL 445.774a provides:

“1) An employer may obtain from an employee an agreement or covenant which protects an employer’s reasonable competitive business interests…”
Further the Agreement must be reasonable:
  • “as to its duration,
  • geographical area, and
  • the type of employment or line of business.”

Quick note – I posted an article about a possible change to Michigan covenants not-to compete statute, you can see that article here – no new movement on that HB. It might just be stuck in committee where it will die…

At any rate,

The question posed by the Above the Law article is a good one – ok, Jimmy Johns, you have a non-compete agreement, that may be valid…so,

“to what end?

What is the point? What type of legitimate business interest is Jimmy Johns trying to protect here?

As lawyers who have the luxury of a business court docket in Grand Rapids, Michigan, we have a court system that understands that businesses do have a legitimate interest to protect, thus making non-competes valid. However, courts are also quick to strike, or limit, any restraint they deem unreasonable.

I would hate to be the lawyer representing Jimmy John’s to enforce an injunction in Grand Rapids Circuit Court to enjoin an 18-year old from making sandwiches…

questions? comments?

email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Woman Gets 7 years for filing fake $100B liens against 4 judges

Don’t mess with the Federal Government.

I reported on this story back in August, see my blog post here and here

The ABA reports today the results of this lady’s rampage against the Federal Government – 7 years in prison. See the article here.

As the ABA reports, “Five years ago, Cherron Phillips was a successful career woman with two children, friends and relatives with impressive records of achievement and no criminal record.” – now she will be serving 7 years in prison.

Her attorney advocated for “probation” claiming that his client’s actions were akin to passing off monopoly money and being charged with counterfeiting.

However, the Judge disagreed – calling Ms. Phillips actions, tantamount to “paper terrorism”

I can understand both positions.

However, I reiterate my thoughts in my earlier blog post – these types of actions make it very difficult to defend when one party is not playing by the rules.

How can you defend against recording a $100B maritime lien (whatever that is) on someone’s property? nonsense.

It’s impossible to argue with crazy.

Questions?

Comments?

email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

Real Estate Law Update: “Lost Note” and Tenant Waiving a Trial By Jury

A few Real Estate Bills made some progress last week in the Michigan Legislature.

 

 

 

I. House Bill 4640, et al.  “the Lost Mortgage”

This Bill was introduced in April 2013 and has gone through amendments and substitutions. On Thursday October 2nd Substitute Number 2 passed the Senate 103 – 4 . You can see the entire legislative history of the Bill here

 

What does the Bill do?

 

The Report that came out of the committee on banking and financial institutions summarized the bill’s (and its companion bill) effect as follows

  • It would provide for the recording and use of affidavits affecting real property to allow an unrecorded mortgage to be recorded.

Why is it necessary?

The State Bar of Michigan’s Real Property Section issued a position statement that clarifies the need for this bill.

Essentially, this Bill is necessary to deal with a Court Decision, In re Neal, 406 BR 288 (2009), which held

“Under Michigan law, affidavit of lost mortgage filed by mortgagee did not itself convey interest in property, and thus could not be recorded to establish mortgage or to perfect mortgage. M.C.L.A. § 565.201(1)(a).”

Therefore, as the Real Property Law puts it:

Only an original instrument can be recorded, the affidavit and copy of the lost mortgage at issue could neither
perfect any security interest nor count as notice of any interest. The type of affidavit at issue has long been used in
real estate practice. 

 

Banks, if you assigned the mortgage and note to 10 different other banks, and you lost the original, oops… you might have trouble proving you have a perfected security interest. Not any longer, under HB 4640.

 

II. House Bill 5869 – Truth in Renting Act – Lease Can Include Language That Will Waive a Jury

The Bill applies to the Truth in Renting Act, which holds void certain provisions if they are included in a residential lease. You can see the text of the bill here Basically, residential tenants have certain rights, that they should not be allowed to waive, like a Landlord’s duty to mitigate their damages, for instance.

 

The Bill was introduced on Wednesday October 1 and referred to the Judiciary Committee

 

What does the Bill do?

It would provide that a residential lease cannot waive a tenant’s right to notice of legal proceedings (e.g. – summons, complaint, notice to quit tenancy) – but the lease specifically allows a landlord to include language in a lease that would waive a tenant’s right to demand a jury trial.

 

Why is it necessary?

I haven’t reviewed any policy explanations, but my own observations, providing a landlord and tenant with the opportunity to waive a trial by jury would provide for judicial economy. It is easier to schedule a bench trial, as opposed to creating a jury pool to select from, and then panel a jury to decide whether or not rent is owed (when likely, the case will get resolved short of trial regardless).

 

Most tenants when they appear on their own behalf at eviction hearings will request a judge, if they request a jury, they are required to pay the jury filing fee, which often times they don’t have (otherwise they would likely be paying their late rent).

 

 

Questions? Comments?

email: Jeshua@dwlawpc.com

http://www.dwlawpc.com

 

 

 

 

 

 

 

 

Real Estate Investors: Recent Case Law Highlights Certain Pitfalls of Purchasing at Sheriff Sales

Those who pick up properties at sheriff sales know there are pitfalls to watch out for.
A recent Michigan Court of Appeals unpublished case highlights one of those pitfalls
The case is WW Michigan Properties v Repokis, No. 316555, 2014 WL 4723822 (Mich Ct App September 23, 2014).
Facts:
  • Daryl and his ex-wife, Karen Repokis, owned the property and defaulted on the terms of a loan, which ultimately resulted in foreclosure and a sheriff’s sale on December 15, 2011.
  • Two sheriff’s deeds were issued to Michigan Properties on December 15, 2011.
  • Michigan Properties did not record the two sheriff’s deeds until January 5, 2012,  (21 days after the date of their issuance.)
  •  Daryl redeemed the property on January 4, 2013, and then quitclaimed his interest in six of the seven parcels to Harsens Properties the same day.
  • Michigan Properties claimed the redemption was late, and filed a lawsuit to stop Daryl’s redemption.

Question:

When does the redemption period end?  Does the clock start ticking at the day of the foreclosure sale, or does it start when the deeds were actually recorded (since they were not recorded within 20 days of the sale)

Law: 

You Must Record a Sheriff’s Deed Within 20 Days of the Sale

MCL 600.3232 provides the procedure when property is sold at sheriff’s sale in pertinent part:
The officer or person making the sale shall forthwith execute, acknowledge, and deliver, to each purchaser a deed of the premises bid off by him…And he shall endorse upon each deed the time when the same will become operative in case the premises are not redeemed according to law. Such deed or deeds shall, as soon as practicable, and within 20 days after such sale, be deposited with the register of deeds of the county in which the land therein described is situated, and the register shall endorse thereon the time the same was received …. [Emphasis added.]
As the Court held: “The plain language of MCL 600.3232 provides that a sheriff’s deed must be filed as soon as practicable, and within 20 days after the foreclosure sale. “Shall” designates a mandatory provision, Smitter, 494 Mich. at 136, and by not filing the sheriff’s deeds with the register of deeds within 20 days of the foreclosure sale, Michigan Properties failed to comply with MCL 600.3232.
“However, MCL 600.3232 does not provide the consequences for its violation. And, in Mills v. Jirasek, 267 Mich. 609, 614–615; 255 NW 402 (1934), our Supreme Court held that the recording provision in MCL 600.3232 is “directory,” as distinct from “mandatory,” and that an untimely recorded sheriff’s deed generally remains valid absent a showing of material harm or prejudice.” WW Michigan Properties v Repokis, No. 316555, 2014 WL 4723822 (Mich Ct App September 23, 2014)”
Conclusion: The Court of Appeals held that the trial court properly concluded that the redemption period ended one year from the date of the recording of the deeds.
Therefore, WW Michigan Properties’ failure to record its deed caused unfair surprise – the general public, particularly the borrower, Daryl, should have relied on when the deed was recorded, if it was recorded much later, otherwise, they do not know who owns the Property, and when they can redeem.
Lesson: There are consequences for failing to record a deed timely. WW Michigan Properties went an entire year with a sheriff’s deed and ultimately had to return the property, think of the costs they incurred, not to mention the legal fees.

Non-Profit provides Legal Advocacy to Homeless Victims of Crimes

I just read this article about a non-profit legal advocacy group helping Homeless Victims of Crimes http://whnt.com/2014/09/10/local-organization-encouraging-homeless-crime-victims-to-seek-help-from-proper-authorities-in-wake-of-mark-pridmores-death/

I always find it exciting to hear about groups or individuals who are truly trying to identify an unmet need in society and then run full speed ahead to meet that need, particularly for the oppressed and vulnerable in society.

In Grand Rapids I think of Goodwill of Greater GR http://www.goodwillgr.org/ providing job placements to people in GR with employment barriers – I was doing a mock interview with an individual who was in Goodwill’s job placement program – at the time I conducted his mock interview he had just got out of serving 15 years in prison – talk about a guy with employment barriers!

I also think of Wedgewood Christian Service’s Manasseh Project http://www.manassehproject.org/ caring for victims of sex trafficking here in West Michigan. and HQ (twitter feed – https://twitter.com/hqgrorg) providing for runaway and homeless youth who fall through the crack.

I can’t help but mention Mel Trotter Ministries, providing for the hurting, homeless and drug addicted in Greater Grand Rapids. http://www.meltrotter.org

The above article resonates with me as a lawyer – to care and advocate for the most vulnerable in our society. Like the article says, homeless and runaways are more likely to be victims of crimes, and also more likely not to report those crimes.

In Grand Rapids, like everywhere, there is always more work to be done for the vulnerable people in our community.

http://www.dwlawpc.com

email: Jeshua@dwlawpc.com

 

 

How to Talk to Your Kids About Homelessness

Bultema Group's avatar Blog

Kids say the darndest things.

Do you remember that old comedy series? The one hosted by comedian Bill Cosby in the late 90s? Bill Cosby would ask a few children – usually between the ages of 3 and 8 – several innocent questions throughout the course of the hour-long program. The children would then respond to the questions, usually in the most unexpected and adorable ways. Each response incited great laughter from the audience and – most often – an embarrassed, did-my-child-really-just-say-that? stare from the parents.

A great example here.

Kids say the darndest things.

But they also ask some incredibly apt and appropriate questions too. Kids are curious and smart. They’re observant, and at some point in their young life – inevitably – they’ll probably notice the man or woman on the street corner and ask why?

When that happens, we’re here to help.

Here are several points…

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