If the topless pictures of Kate Middleton were taken in Massachusetts, would she have had a legal claim under Massachusetts law for violation of her privacy?

17 September 2012

Most likely.  The topless photos of Kate Middleton reportedly were taken in the south of France while the royal couple was sunbathing.  The pictures apparently were obtained from a significant distance, one report being a ½ mile away.  Although the privacy laws in France are known to be some of the strictest in the world, and much more so in general than the United States, due to the nature of the photos, the Duchess of Cambridge would likely have a legal claim under Massachusetts law if the incident occurred here in Massachusetts.

Whether a tort for the violation of a person’s right to privacy in some shape or form has existed under the common law (created by courts) in Massachusetts and under what circumstances a claim would arise was not firmly established in Massachusetts.  Baker v. Libbie, 210 Mass. 599 (1912); Corliss v. E.W. Walker, Co., 57 F. 434 (C.C.D. Mass. 1893) modified, 64 F. 28 (C.C.D. Mass. 1894).  Only in recent times did the tort under the common law take some shape.  In Alberts v. Devine the Massachusetts Supreme Judicial Court affirmed that a patient has a right of privacy for the information a physician obtains in the patient-physician relationship.  395 Mass. 59, 65 (1985).  Today, a right to privacy under the common law may still arguably have some grounding in Massachusetts law.  However, reliance on the common law in most instances may not be necessary; in October 1973 the Massachusetts legislature passed a law intended to provide citizens a statutory right to privacy.  It is Mass. Gen. Laws ch. 214 § 1B.  It reads:

   

“A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.”

Although what is “unreasonable” or “substantial” or “serious” is a matter of some legal debate, it is hard to imagine that sneaking around taking nude pictures of a woman who is on private property is not unreasonable or substantial or serious in anyone’s book.  This author thinks it is safe to say that Kate Middleton would have a claim under this statute under the facts as reported if the photos were taken in Massachusetts. 

In the event that you are a party in a case involving the right to privacy in Massachusetts, expect to be a party in a case, or want to know if a claim exists under a certain set of facts, feel free to give our office a call.

What is limited assistance representation in Massachusetts and how can I benefit from it?

12 September 2012

Limited assistance representation (“LAR”) is a relatively new (and exciting) way clients and attorneys can structure representation agreements.   Specifically, for clients LAR is an agreement to limit the representation to only part of a case, such as one hearing or court conference, instead of the more traditional representation agreement where an attorney represents the client for the entire court case.  The goal of LAR is to allow a client to hire an attorney on a limited basis and save money by avoiding the cost of an attorney for an entire case.  Also, an intended benefit is for clients to be represented for at least part of the case when they normally would not be represented at all due to cost.  It is something to consider when money is tight for the right kind of case. 

For attorneys and formally for Massachusetts, LAR is a relaxing of procedural rules.  You see, traditionally, a lawyer who files a document in a case makes an “appearance” that triggers a number of responsibilities for the clerk’s office, the lawyer, and the opposing party.  Most importantly, a lawyer that has made an appearance in a case for a client must continue to represent the client until he gets permission to leave the case or is replaced by successor counsel.  The gist for the lawyer is that (in the past without LAR) it has been difficult to get out once you’re in.  (This is one big reason why attorneys require retainers before representing a client.)  Lawyers are fearful to avoid having to spend the time to get out of a case when the client is not paying them, or worse, have to represent the client in a trial because for whatever reason the judge will not let them out of the case, which has and does happen. 

Technically what has happened is that the Massachusetts Supreme Judicial Court has issued a standing order setting up the procedural rules that must be followed to represent a client on a LAR basis and allowing individual courts throughout Massachusetts to allow LAR if desired.  An attorney must follow these procedural rules to appear before a court under LAR. 

LAR can be a great way to go for both client and attorney.  But it is not appropriate for every case.  An attorney considering a LAR agreement must analyze the matter and make sure it is appropriate.  If so, the benefits can be great.

In the event that you are involved in a court case or expect to be involved in a court case in Massachusetts and LAR interests you, feel free to give our office a call.

Do I have a claim for intentional infliction of emotional distress under Massachusetts law?

1 September 2012

Maybe, but it is a real high legal standard to meet.

There are many people making claims for intentional infliction of emotional distress.  Once I saw a car (Car #1) driving in the breakdown lane of a congested highway fast enough to pass other cars sitting in traffic.  I then saw a car in the right lane (Car #2) pull enough into the breakdown lane to stop the progress of the car.  Is there a claim here?  Was this intentional?  Yes.  Is it inflicted upon someone?  Yes.  Is it emotional distress?  Yes.  But it is quite unlikely any judge would believe that there is a claim for intentional infliction of emotional distress under Massachusetts law. 

 

This is because the title of a claim is not all there is to it.  One must research statutory and case law to gain an understanding of what the claim is all about.  Just a few of the requirements are the degree of the behavior and the severity of the distress. 

Under Massachusetts law, the behavior inflicted must be “extreme and outrageous conduct.”  Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466 (1997).  It must be “beyond all possible bounds of decency” and “utterly intolerable in a civilized community.”  Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976).  What car #2 did is arguably rude and intended to cause frustration, but it does not meet this standard. 

 

An intentional infliction of emotional distress claim also must cause severe distress, not garden variety distress.  Bailey v. Shriberg, 31 Mass. App. Ct. 277, 279-80 (1991) (being “upset and up tight,” or “disgusted, annoyed, fed up, tired, and rundown” about defendant’s dogs’ barking and radios blaring 20 feet away not distress of “requisite severity”).  The distress must be of a nature that “no reasonable man could be expected to endure it.”  Agis v. Howard Johnson Co., 371 Mass. at 145.  One may be quite upset that a person blocks their way to drive in the breakdown lane, but it doesn’t meet this standard.

Now pretend that the driver of Car #1 was rushing their friend to the hospital who had time-sensitive and serious injuries and the driver of Car #2 knew of the injuries and the intended destination of Car #1 and was yelling “you’ll never get there and she will die.”  Hmmmm, maybe we are getting closer.

The point is that there is usually more than just the title of a particular claim and care must be taken prior to filing suit to see if legal standards are met.  

In the event you believe you have a claim for intentional infliction of emotional distress or another tort, feel free to give us a call.

What happens if I conceal an asset in a bankruptcy?

30 August 2012

Answer: really bad ramifications, and now there is one more added to the mix for Massachusetts.

A federal appeals court has just issued a ruling that the law allows an additional remedy against bankruptcy debtors that conceal assets. This case is important because it establishes the law for Massachusetts and adds another really bad possible ramification for a debtor that is dishonest. The United States Court of Appeals for the First Circuit, with former Supreme Court Justice Souter sitting under designation authoring the opinion, just affirmed a ruling by a bankruptcy judge in Boston, Massachusetts that took the step of ordering a “surcharge” against a Debtor the judge believed concealed funds he received from a real estate transaction. The case is styled as Malley v. Agin (In re Malley), 2012 WL 3326629 (1st Cir., Aug 15, 2012) and a brief summary of the facts from the opinion is the following.

Mr. Malley and his ex-wife sold their marital home in accordance with their divorce agreement. Mr. Malley personally received $25K as his share from the sale. He then filed for bankruptcy and did not reveal his receipt of the $25K on his bankruptcy paperwork. When asked about the transaction by the trustee assigned to his case, he claimed under oath that he never received any funds from the transaction.  The trustee investigated and learned about the $25K that went to Mr. Malley.

The trustee sought sanctions against Mr. Malley and the bankruptcy court denied Mr. Malley a discharge of his debts because of Mr. Malley’s false representations. The court also ordered Mr. Malley to turnover the $25K, but he did not and did not explain where the funds went. The bankruptcy court also ordered, and this is what is important from the case, that the $25K that was unaccounted for, plus the cost to unravel the issue would be held against one of Mr. Malley’s exempt assets, a truck that he used in his business. You see, the general rule is in bankruptcy that debtors are entitled to keep exempt assets to ensure their fresh start and only have to turn over assets that are not exempt under the law. But this decision delved into that area to ensure the $25K plus was accounted for.

Although the portion of the case concerning the exempt property may be appealed to the US Supreme Court, as matters stand now, the case did not turn out well for Mr. Malley.  He will not get out of his debts, he will have to give up his only significant asset, and (if authorities believe he intentionally stated falsehoods under oath) the case may get the attention of the US Dept. of Justice for criminal prosecution.  The moral of the story is to disclose all of your assets in your bankruptcy.

If you are contemplating bankruptcy and plan to heed the moral of this story, then we encourage and invite you to contact this office.

How do I obtain documents from a third party to use in a law suit?

1 August 2012

People that have claims can find themselves in the situation of needing to obtain documents and records from a third party to use against the party they are suing or being sued by.  The best way to go about this usually is to utilize Rule 45 of the Massachusetts Rules of Civil Procedure.  This rule allows a party to a law suit to depose, and in conjunction with the deposition, to obtain documents from third parties. 

Initially, you must partly draft a Subpoena Duces Tecum and have it issued by the court clerk, justice of the peace, or notary.  Then you must choose a date and time for a deposition that is at least 30 days from the date the third party will be served.   (You must be ready to supply a stenographer to record the deposition, if indeed the deposition actually occurs.)  You must complete the rest of the rest of the Subpoena Duces Tecum.  You must pay attention to the limits on the miles the deponent is supposed to travel and provide sufficient funds in advance for the attendance and the travel costs.  Mass. R. Civ. P. 45(c) and (d)(1).  You must serve the third party with the Subpoena.  You will need to know what person or entity to make service upon and how to go about it.  You may be able to send the Subpoena by certified mail, return receipt requested, and you may want to use the sheriff of the county where the service will be made to make the service. 

The “Duces Tecum” language means “you shall bring with you.”  This added language makes a subpoena, which only requires the presence of the natural person (or natural person designated by a corporation), require the presence of the person plus the documents named.  (If you just want to depose someone, this language is not used.)

If you are really looking for the documents (and are not interested in bothering some poor third party to appear and answer questions under oath), which is typically the case, then you can inform the third party that you are inclined to cancel the deposition in the event that you are satisfied with the documents.  Upon receipt of the documents, be professional and inform the third party right away the deposition is cancelled.

In the event the documents concern information people other than the third party have an interest in.  The third party is likely to inform those people that they have been served with a Subpoena Duces Tecum and will be providing the information.  This allows those people to contest your Subpoena in court and to try and prevent the information from being released.

You also may be asked to pay the third party the reasonable costs to produce the documents.  Mass. R. Civ. P. 45(b).  This is especially so if the third party is a large corporation and it has procedures in place due to the abundance of Subpoenas it receives due to its size or particular business.  (Think Facebook, Microsoft, and YAHOO!)

This process can be daunting for one that has not been through it.  The response, or lack thereof, of third parties can vary greatly and makes it necessary for you to be nimble and react quickly to enforce your rights.  In the event you believe you have a claim but need documents or information from a third party, feel free to contact the office. 

How will my student loans be treated in a chapter 13 bankruptcy?

19 July 2012

This is a good question and is of some dispute in the legal field. We start with the rule that people generally know; student loans are not dischargeable in bankruptcy (with rare exceptions). Another general rule for chapter 13 filers is that unsecured creditors are usually paid a percentage of the total amount they are owed during the chapter 13 plan. (At the end of the plan, if the debtor has done everything right, any remaining balance owed to an unsecured creditor is discharged.) And a general rule for all people filing under any bankruptcy chapter is that once the bankruptcy petition is filed, the automatic stay goes into place and most creditors have to stop collection activity. With these rules in mind, it is natural to wonder how student loans are treated during the chapter 13 plan, specifically if they get paid during the plan, and if so, how and how much?

First, understand what happens with student loans in a chapter 13 plan is a bit odd. They are kind of in their own category. As stated, the automatic stay is in place, so all direct collection activity towards the debtor stops. However, since student loans are not discharged, even though they cannot actively pursue you during the plan, the balance still accrues, including interest. In a chapter 13 plan, creditors are entitled to the debtor’s disposable income (calculated in different ways for different debtors), so almost all plans provide for a monthly payment to a trustee. (This is the most notable and apparent difference between a chapter 13 and a chapter 7.) So, yes, student loans will be paid, provided a claim is filed, some of the amount that the debtor pays to the chapter 13 trustee. The problem is that the amount paid for the student loans may not be enough to stop the total outstanding balance from increasing. Specifically, the interest could accrue faster than the percentage payment coming in reduces the balance. (This is what happens with “negative amortization.”) This possibility has led many a debtor’s attorney to try to find some way to avoid this.

Since student loans will remain after the chapter 13 plan is completed, but your other unsecured debts will be discharged, it is in the chapter 13 debtor’s interest find a way to directly pay the usual and regular amounts due towards the student loans during the chapter 13 plan. Overall, in layman terms, it would be beneficial for the debtor to treat the student loans special, like a preferred creditor, and pay them “outside” the chapter 13 plan.

Debtor’s attorneys have tried to present plans that do just this. However, paying the student loans directly during the chapter 13 plan would be to treat them better than other creditors in their class, which is not allowed because 11 U.S.C. § 1322(b)(10) does not allow a debtor to pay the student loans during the plan, unless all unsecured creditors are paid in full.

However, depending on where you live, there could be a ray of hope. Recently, a bankruptcy court in Georgia allowed direct payment towards a student loan during a chapter 13 plan. In re Freeman, Case No. 06-10651-WHD, 2006 WL 6589023 at *1 (Bankr. N.D. Ga. 2006). This decision has been criticized and is not binding on any future case. Thus, it would pay to engage a competent bankruptcy lawyer who knows how this issue is dealt with in your locality/jurisdiction if you are considering a chapter 13 bankruptcy and owe student loans.

What does the Eaton decision mean for Massachusetts homeowners facing foreclosure?

2 July 2012


On 22 June 2012 the Massachusetts Supreme Judicial Court issued its long-awaited decision in Eaton v. Federal National Mortgage Association. The issue was whether a mortgagee (bank/mortgage lender) was required to own/hold both the mortgage and note in order to foreclose, or if it was proper to foreclose with owning/holding the mortgage.

You see, when someone buys a house and gets a “mortgage” what legally happens is that they sign a: 1) promissory note; and 2) a mortgage that grants a security interest in the property to collect the promissory note. These are two separate documents. Until Eaton, the entity foreclosing only had to own/hold the mortgage in Massachusetts. This was the practice in Massachusetts and was contrary to the law in many other, if not all, other States that required the entity foreclosing to own/hold both the note and the mortgage. Eaton provided an interpretation of existing statutes that was contrary to what had been established practice in Massachusetts. Eaton is big news.

To establish what Eaton means to the consumer facing foreclosure some of the details of the decision must be discussed. Although Eaton changed the law, it is prospective only. This means that it only applies to future cases (with the exception of Ms. Eaton herself). Specifically, it only applies to foreclosures that the required notice of foreclosure had not been sent by the date of the opinion (6/22/2012). So, if that notice has been sent by this date, the foreclosure process follows the “old law” so to speak. Also, keep in mind that a bank/mortgage lender may have owned/held both the note and the mortgage anyways, so following the new interpretation/law will not be a problem. What it will affect are entities that only hold the mortgage, have not sent the required notice of foreclosure by 6/22/2012, and plan on foreclosing. Those entities will have to make a change, which will likely postpone any foreclosure sale until the same entity obtains both the note and the mortgage, at least, or something more.

The foreclosure process has a number of steps, is different in Massachusetts than other states, and the law has been dramatically changing since the onset of the Great Recession. So, if you have questions about a foreclosure you are facing, we encourage you to consult a qualified (foreclosure defense) attorney without delay to discuss your particular issue(s).