CHANGES TO ARIZONA’S JUDGMENT RATES OF INTEREST

If you are an attorney that represents creditors in debt collections, whether it be large commercial notes or  small private notes, your practice will be affected by recent changes to A.R.S. § 44‑1201, regarding judgment rates of interest.  This is how I interpret the statute:

A. Loans with a stated rate of interest:  If plaintiff is seeking to collect on a loan, indebtedness or other similar obligation and the parties have a rate of interest contracted for in the writing, the rate of interest in that writing will apply.  See A.R.S. § 44‑1201(A).

B. Loans without a stated rate of interest:  If plaintiff is seeking to collect on a loan, indebtedness, or other similar obligation, which rate of interest is not contracted for in writing, plaintiff will apply the rate of 10% per annum to that loan.  See A.R.S. § 44‑1201(A).

C.  All other amounts on a judgment:  All other amounts on a judgment, including attorneys' fees, costs, and damages not found in A or B above, will bear interest at either the rate contracted for in writing or prime rate, plus 1 percent, as identified by the Federal Reserve Statistical Release H.15, on the date of judgment.  A hyperlink to this Federal Reserve rate is found here.  See A.R.S. § 44‑1201(B). 

These are significant changes from the old statute.  I urge you to review the statute.  Also, if you interpret the statute differently, please comment to this article.  The statute has caused some debate on how to interpret the words in unique cases.  Moreover, each attorney I have talked with about these changes has come to a different conclusion. 

MORE FORECLOSURE TROUBLES FOR BANKS

Banks Must Give 90 Days Written Notice
Before An Eviction Action

When a bank forecloses on property, the legal issues that follow can be sticky.  I frequently get questions about a bank’s obligation toward a tenant following a foreclosure.  The scenario is as follows:  Tenant is paying his/her rent every month.  The landlord is not paying the mortgage every month.  The landlord falls in default and the bank forecloses.  That is when the problems start.  The bank's goal is to evict the tenant as soon as possible, while the tenant wishes to stay in the property. 

So what are the tenant's rights and the bank's obligation following a foreclosure?  After a foreclosure, the tenant has the right to stay in the property 90 days following written notice from the bank informing the tenant that they will be evicted in 90 days.  It is not enough that the bank simply wait 90 days to foreclose.  The bank must provide written notice that the tenant has 90 days to vacate the property before an eviction action is filed. 

This point of law was confirmed in the case of Bank of New York Melon v. Patricia de Meo, which was decided by the Arizona Court of Appeals in May 2011.  In this matter, the bank foreclosed on the landlord and one day later the bank provided a standard five-day written notice for the tenant to vacate the property.  Thereafter, the bank waited 90 days prior to bringing an action for forcible detainer.  The Court of Appeals ruled that the trial court erred in evicting the tenant because the bank failed to provide a 90-day written notice to vacate.

The lesson to foreclosing banks is that it is not enough to provide the standard five-day notice provided in the Arizona Landlord-Tenant Act.  The bank must provide a 90 day written notice.  It is also not enough that a bank simply wait 90 days prior to filing the action.  The lesson to a tenant is that he/she need not vacate after 90 days.  A tenant must only vacate after receiving 90 days written notice of termination. 

If you are a tenant or bank and in need of a landlord-tenant attorney, I urge you to contact me where I can make a proper recommendation for your needs. 

SOMETIMES THE GUILTY GO FREE

One of the hallmarks of American justice is that sometimes the guilty go free, even when the court system knows the person is guilty.  This fact often makes prosecutors, judges, and citizens uncomfortable, but our U.S. Constitution demands it.  If police violate the Constitution in the course of their duties, even when the violation was not malicious, the guilty may go free. 

In the case of State v. Fisher, which was decided on May 19, 2011, the Arizona Supreme Court grappled with our pesky Constitution, specifically with the Fourth Amendment that grants citizens "[t]he right of the people to be secure in their persons, houses, papers, and effects, and against unreasonable searches and seizures."  Based on the Fourth Amendment, the courts have ruled that unless there is a recognized exception police must have a warrant to search a home. 

In this case, police were searching for a person suspected of an assault.  In the process of the search, police detained Fisher, and several other people, outside Fisher’s apartment.  Thereafter, the police entered his home without a warrant and found a duffel bag containing marijuana.  The Arizona Supreme Court reasoned that the apartment search was unconstitutional because police lacked reasonable suspicion and probable cause to search a home as the suspects were detained outside the home; accordingly, a warrant was required for the search.  The Arizona Supreme Court decided to exclude evidence found in the illegal search, meaning a jury will never hear of the evidence. 

The court further reasoned as follows: 

We likewise are aware of the high price of suppressing evidence. . . . The principal cost of applying the [exclusionary] rule is, of course, letting guilty and possibly dangerous defendants go free – something that offends basic concepts of the criminal justice system. . . .  But the right to privacy in one’s home is basic to a free society. Thus, specific facts, and not mere conjecture, are required to justify a protective sweep of a residence based on concerns for officer safety.  (Citations and quotations omitted).

The U.S. Constitution is a curious thing.

TIMING OUT—ARIZONA’S CHANGES TO THE STATUTE OF LIMITATION ON CREDIT CARD DEBT

The consumers’ battle against the credit card industry just got tougher because of recent changes to one of Arizona’s statute of limitations.   The change will negatively affect consumers because it increases the time period for which a credit card company can sue upon on a bad debt, from three years to six years.  However, the change creates more certainty for all involved as Arizona’s former law was applied unevenly. 

Photo by Michelle Meiklejohn http://www.freedigitalphotos.net/images/view_photog.php?photogid=901

A “statute of limitation” is the legal time limit for suing on the matter.  The purpose of a statute of limitation is to create finality and certainty for all parties to a dispute. Prior to April 12, 2011, Arizona’s statute of limitation on credit card debt was unclear; therefore, it was applied unevenly.  Some judges applied Arizona Revised Statute § 12-543 to credit card debt, which states that plaintiffs suing upon a “stated or open” account have three years from the default to bring the action.  On the other hand, some courts applied Arizona Revised Statute § 12-548 which gives six years to sue for contracts made in writing.  The uneven application of the law was problematic for judges, creditors, consumers, and attorneys. 

The law was applied unevenly because the definition of “stated or open” account was undefined.  Some judges and attorneys believe that a “stated or open” account is synonymous with “credit card.”  Other judges and lawyers believe that credit cards should be viewed as only a contract made in writing, thus the six year statute of limitation under § 12-548 would apply.  The new legislation has the effect of clarifying the rule by specifically defining what a credit card is and granting the credit card companies six years from the date of first default to bring a cause of action. 

How will this affect the average consumer? The change means that the credit card companies will have six years (rather than three) to sue the defaulted debtor; however, it also means that the average consumer will have more certainty as the law will be applied evenly to all consumers. 

If you have been sued on a credit card that is six years in default, I do not recommend that you attempt the defense on your own.  You should contact a qualified attorney who can help you dismiss the action in your favor.

CAN I CREATE MY OWN WILL?

Many people ask whether they need an attorney to draft a will or whether they can do it on their own. In Arizona, the answer to that question is that you do not need an attorney to draft a will—a will does not fail because it is drafted by a non-lawyer.  That said, I have yet to find a non-lawyer that understands the legal requirements of a will or common pitfalls in will drafting.  Moreover, I have seen too many self-made wills that are lawsuits waiting to happen.  

The case of Gloria Waterloo, decided by the Arizona Court of Appeals on March 8, 2011, illustrates that a well drafted will is the “ounce of precaution” that avoids “the pound of cure.” Ms. Waterloo had an estate with a value of at least 3 million dollars. One month before she died, she decided to will some or all of her estate to a certain Rabbi Zack Zimmerman.

No doubt Ms. Waterloo believed that her will was adequate to probate. However, her will made reference to a “list of final instructions” that did not exist. Therefore, the trial court declined to probate the will because it could not ascertain Ms. Waterloo’s “complete intent  . . . without knowing what was to be contained in the list of instructions.” On appeal, the Court of Appeals reversed the trial court sending the will back to probate because a will “should be admitted to probate as a will even though all of its terms are not capable of being enforced.”

So what’s the moral of this case? You do not need an attorney to draft a will. However, a qualified attorney knows how to draft a will that probates without needless litigation. If you have a poorly drafted will, you may end up like Ms. Waterloo, spending tens of thousands in attorneys’ fees just to have her last wishes fulfilled. I doubt it is your desire to have your money expended in this way. Therefore, I highly recommend that a qualified attorney prepare your estate plan. 

U.S. SUPREME COURT RULES THAT WESTBORO BAPTIST CHURCH HAS CONSTITUTIONAL RIGHT TO PICKET AT FUNERALS

The Supreme Court ruled on March 2, 2011, that the Westboro Baptist Church has a constitutional right, under the Free Speech Clause of the First Amendment, to picket at the funerals of our fallen soldiers.  The court went on to reason that the First Amendment is a defense to the tort of intentional infliction of emotional distress.  The opinion can be found here. 

 

The facts of this case arise out of the picketing of the funeral of Lance Corporal Matthew Snyder.  At the picketing Fred Phelps and followers of the Westboro Baptist Church held signs outside the funeral of Cpl. Matthew Snyder that read “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell.”  After the funeral, Cpl. Snyder’s father filed suit against Fred Phelps, his daughters, and the Westboro Baptist Church for, among other things, intentional infliction of emotional distress.  His father won a multimillion dollar award. An appeal of the award followed on the theory that the First Amendment protects this type of speech. 

In ruling against Snyder, the U.S. Supreme Court reasoned that the First Amendment serves as a defense to torts when the speech in question is of a public concern rather than a private concern.  Speech is of a public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” or when it “is a subject of general interest and of value and concern to the public.” Whether the statement is “inappropriate or controversial . . . is irrelevant.”   

The court went on to reason that the content of the Westboro Baptist Church’s speech is a public concern and, therefore, entitled to special protection under the First Amendment.  However, the court further reasoned that choice of when and where to conduct picketing is “subject to reasonable time, place, or manner restrictions” so long as the regulations are “content neutral.” 

Only one justice dissented the majority opinion, Justice Alito.  In that dissent, Justice Alito summoned the voice of the people.  His words are worth mentioning: 

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.  The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

Our hearts go out to the Snyder family.  This ruling will be difficult to handle. 



YOUR NEIGHBOR IS CHEAP? – JUST SUE!

The Arizona Court of Appeals says that when your neighbor is cheap you can sue him. Well, that is not exactly what the Court of Appeals ruled, but it is pretty close. In the case of Friedland v. Sorchych, which was decided just last month, the Arizona Court of Appeals was grappling with the dispute of two feuding neighbors. The subject of their dispute was a private road that serves both of neighbors’ parcels of land.

In this case, the road came in the form of an easement, which is defined as the right to use another’s land.  At some point, the parties made a verbal agreement that they should share the cost of maintaining the road.  However, the Defendant later refused to provide his share of the costs claiming the repairs were unnecessary and too expensive.  Therefore, the Plaintiff sued but lost the case. 

The Court of Appeals reversed the trial court ruling that “the doctrine of equitable contribution should be extended to remit one dominant tenant to require another dominant tenant to contribute to the necessary repair and maintenance of an easement that both tenants are using . . .”  “Consequently, [the parties] . . . have a shared obligation for the necessary maintenance and repair of the roadway.” 

In other words, if you and your neighbor share an easement and your neighbor will not help pay to maintain the easement, sue him for being cheap. There is no such thing as a free road.

HOW THE DISAPPOINTED HEIR GETS REVENGE

When those we love pass away, every family hopes that the legal and financial aspects of the deceased’s estate will settle easily and without argument.  Most of the time the deceased’s estate is resolved without incident.  However, there are times when an heir is disappointed in his/her portion of the estate. When this happens, the heir looks for someone to sue.  In the law, we call this person the “Disappointed Heir.” 

Dealing with a Disappointed Heir can be challenging. After all, the Disappointed Heir expected to receive a certain bequest but it was taken away. Right or wrong, the Disappointed Heir wants vindication for the loss.

There are two classic fact patterns for a Disappointed Heir to obtain “revenge.” The first one is where the Disappointed Heir is a truly rotten son/daughter and the deceased writes him/her out of the estate plan.  This Disappointed Heir will say and do just about anything to get back the money, including by bringing a court action.  The second classic fact pattern is when the bad son/daughter commits some wrongful act to cause the good son/daughter not to receive a bequest.  This often happens through some act of fraud such as changing the deceased’s will, causing an incompetent testator to sign a new will, or taking the money before it can be distributed.  However, in either case, a nasty legal battle over the estate is inevitable.    

So, how can you avoid or limit your family’s involvement in a legal battle after you die?  With a little bit of planning, you can avoid tens of thousands in litigation fees for the beneficiaries by performing a few simple acts when you create your estate plan:

1.  Doctors Evaluation:  Obtain a doctor’s opinion declaring you competent and declaring that you have the mental capacity to make a will. This declaration should be done with the assistance of an attorney so the declaration addresses legal issues paramount to competency.

2.  Hold a Family Meeting:  Hold a family meeting, with outside witnesses present, describing why you chose to make certain bequests or did not make certain bequests. 

3.  Draft a Letter:  Draft a letter to family members describing why you chose to make certain bequests and/or did not make certain bequests. 

4.  Prepare a Video of Yourself:  Prepare a video of yourself reading the will/estate plan and discussing why you decided to make certain bequests.  Be sure to explain why you disinherited the heir. Once again, the family meeting, letter, and video needs to address important legal issues so I recommend having the assistance of an attorney. 

5.  File a Declaratory Lawsuit:  You may take the extraordinary step to file a lawsuit against all possible beneficiaries and ask the Court to declare you competent to make the will/estate plan.  This final step is most likely “over kill.”  However, you may find it necessary to do so under your specific facts.   

If you are in a legal battle with a Disappointed Heir or you are the Disappointed Heir, seek good legal help.  The litigation process is not easy.  The last will and testament is frequently upheld because the burden of proof is on the person challenging the will.  However, from a practical stand point, even if the will is in your favor, you must carefully construct a litigation to prove the person was competent to make the will.  This process is full of unintended pitfalls if you do not perform it correctly. 

The vast majority of people’s estates pass to the beneficiaries without incident. Families and friends recognize the good intentions of the testator and typically follow his or her will. However, when things go wrong, they can go very wrong and painful litigation will ensue.    

ARIZONA PASSES FUNERAL PICKETING LAW—RESPONSE TO WESTBORO BAPTIST CHURCH

Last week Arizona passed SB1101 to address threats by the Westboro Baptist Church that its members would picket the funeral of Christina Taylor Green, a nine-year old victim of the Rep. Gabrielle Gifford shooting.  The new bill makes it a class 1 misdemeanor to picket or protest within 300 feet of the property line of any residence, cemetery, funeral home, church or other establishment, before, during or after a funeral.   

In October, I posted an article discussing the undecided U.S. Supreme Court case, Snyder v. Phelps, which regards a multi-million dollar emotional distress verdict spawned by a Westboro Baptist Church funeral protest.  In that case, Phelps and the Westboro Baptist Church argued before the U.S. Supreme Court that funeral protests are a protected form of the free speech.  Therefore, the multi-million dollar verdict against Phelps and other protester defendants should be overturned. 

The new Arizona law will have no effect on the outcome of Snyder v. Phelps .  However, the new Arizona law, SB1101, is related because it is designed to limit the type of speech that Westboro Baptist Church argued it was entitled to speak--funeral protests.  After all, SB1101 funeral protesters will be limited in the times of the protests and the location of the protests.  

So, does the new law violate the First Amendment? Answer: Quite possibly.  A similar funeral protest law in Missouri was found unconstitutional in August, 2010.  (A copy of the ruling can be found here.)  Arizona's law is a restriction on free speech.  Restrictions on free speech are Constitutional if the restrictions meet "tests" concocted  by the Supreme Court to guide lower court judges.  In the Missouri case, the Court found that law could not meet two of the tests:  (1) Whether the law serves a significant goverment interest, and (2) Whether the law is narrowily tailored to meet that interest.

These test are complex and beyond the scope of this ariticle.  However, from a practical stand point, the tests are designed to allow limits on speech that is disruptive to everyday society.  So, what makes speech disruptive?  Frequently govement regulations in the name of public safty are upheld. A good example would be a law that causes protesters to hold signs below a certain size and height so that the signs do not block street signs; or a law that causes protesters to not protest near street intersections so as to not interfere with traffic. 

We will need to wait and see whether this law becomes another hot button at the U.S. Supreme Court.  However, given the Missouri case, this law could once again put Arizona in the national spotlight. 

JULIAN ASSANGE OF WIKILEAKS—CRIMINAL SPY OR JOURNALIST EXERCISING RIGHT TO FREE SPEECH?

For some time now, Julian Assange, founder and editor of the website WikiLeaks, has been publishing U.S. government secrets that he allegedly received from an army private employed at the Pentagon. See article from Wall Street Journal. The army private allegedly downloaded thousands of secret and classified documents from his Pentagon computer and, thereafter, delivered the documents to WikiLeaks and its editor. Now people are calling for Mr. Assange to be prosecuted under the Espionage Act. See article from Wall Street Journal.

If you have not seen it, this is what the Wikileaks website looks like.  You can currently reach Wikileaks at http://213.251.145.96/

The Espionage Act makes it a crime for a person to be in possession of a U.S. government secret and transmit that secret to another party who is not entitled to receive it. Certainly in this case Mr. Assange is in possession of U.S. government secrets and has transmitted it, via the web, to the world. Therefore, at first glance there appears to be some justification for investigating further whether the Espionage Act applies to these acts.

The rub here is that the First Amendment right to free speech possibly trumps the Espionage Act. This blog post is not to make an opinion about whether or not Mr. Assange has violated the Espionage Act and/or is protected by the First Amendment. Rather it is to point out the similarities between the case of New York Times vs. the United States, aka the Pentagon Papers case, and let you determine whether Mr. Assange is protected by the First Amendment right to free speech.

In the Pentagon Paper case, the U.S. government sought to enjoin (or stop) the New York Times and other newspapers from publishing a classified study entitled, “History of U.S. Decision-Making Process on Vietnam Policy” and other government secrets. Just as in the Wikileaks matter, in the Pentagon Papers case a government informer revealed top secret papers to a third party, journalists. Thereafter, the Journalists sought to publish the secrets.

When the government learned of the Pentagon Papers leak, it sued to stop the publication on the theory that the publication would violate the Espionage Act. Lower courts enjoined the publication of the secret papers. However, when the injunction made its way to the Supreme Court, the Supreme Court ruled that the U.S. Government was not entitled to stop the publication of the confidential report.

Justice Black delivered the opinion of the court denying the injunction against the New York Times. In the opinion, Black states, “I believe that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” Justice Black further states that the continued injunction “would make a shambles of the First Amendment.”

As if these words were not clear enough, Black went on to write the following:

Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law . . . abridging the freedom . . . of the press . . . ." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

Justice Black’s elegant words showed unequivocal support of a newspapers’ right to publish government secrets. Mr. Assange has published government secrets and for that there have been calls to prosecute him as a criminal. However, given the ruling of the U.S. Supreme Court in the Pentagon Papers case, is there any room to doubt that the press may publish a government secret? If Justice Black was writing the decision, what would he say about Wikileaks? Now that you have read the words of the constitution and the opinion of the Supreme Court, you make up your mind whether or not Julian Assange is a criminal or deserving of First Amendment protection.