By Jeffrey R. Schmitt
For many individuals and businesses, being served with a lawsuit is an uncommon, or possibly even a once-in-a-lifetime, situation. Litigation can be stressful and being served with a lawsuit is often surprising as well. However, in all situations when you or your business is served with a lawsuit, there are three simple, basic steps to best preserve your rights and protect yourself from the outset.
- Make Some Quick Notes
Often, as a result of the frustration or surprise associated with being served with a lawsuit, most people don’t pay attention to the details of how they were served. These details can be very important. There are specific rules and procedures about proper service of lawsuits, depending on the type of lawsuit and the court.
Take a few minutes to jot down notes related to the service. Specifically, identify the date and time of service, the manner of service including whether a sheriff or process server handed you papers or if the lawsuit was received by first-class or certified mail, and the recipient of those papers. These may be important facts for your attorney to know in determining whether or not service was proper and if you should contest service as a result.
Also, don’t assume that service is improper without getting legal advice. In some instances, service by mail or serving papers on your 16 year old son or daughter when you are not home can be proper service. Continue reading »
02/6/17 8:14 AM
Business Law, Litigation, Other | Comment (0) |
What to Do When You Are Served with a Lawsuit
By Katherine M. Flett
Under the Bankruptcy Code, “lien stripping” allows a debtor to void a property lien “[t]o the extent that [the] lien secures a claim against the debtor that is not an allowed secured claim.” Lien stripping is based on the concept that a second claim must actually be secured by collateral of sufficient value to equal or exceed the amount of the secured claim. Section 506(a) of the Bankruptcy Code provides that claims which are only partially secured, or “underwater,” are to be split into two claims – one fully secured and one fully unsecured.
In 1992, the U.S. Supreme Court addressed an important question about lien stripping in Dewsnup v. Timm (1992). In Dewsnup, a Chapter 7 debtor sought to strip the unsecured portion of an underwater lien on her residence under Section 506(d). Specifically, the debtor wanted to reduce her debt of approximately $120,000 to $39,000, the value of the collateral securing her debt at that time. Relying on the statutory definition of “allowed secured claim” in Section 506(a), the debtor argued that her creditor’s claim was “secured only to the extent of the judicially determined value of the real property on which the lien [wa]s fixed.”
The Court rejected this argument, relying on policy considerations and pre-Code practice. The Court concluded that if a claim has been “allowed” under Section 502 and is secured by a lien with recourse to the underlying collateral, it does not come within the scope of Section 506(d). As such, the Court held that the debtor could not strip down the creditor’s lien to the value of the property because the creditor’s claim was secured by a lien and had been fully allowed under Section 502.
The Dewsnup Court defined the term “secured claim” in Section 506(d) as a claim supported by a security interest in property, irrespective of whether the value of the property would be sufficient to cover the claim. Under this definition, lien stripping is limited to “voiding a lien whenever a claim secured by the lien itself has not been allowed.” Dewsnup has been widely criticized as being contrary to the plain language of Section 506(a). Continue reading »
01/25/17 2:50 PM
Bankruptcy, Litigation | Comments Off on Lien Stripping in Bankruptcy after Caulkett |
Lien Stripping in Bankruptcy after Caulkett
By Joseph R. Soraghan
Not surprisingly, there is both anecdotal and empirical evidence that time constraints affect behavior generally. It is also, therefore, not surprising that high time pressure (hereinafter “HTP”) probably affects both parties and mediators in mediation.
I recently ran across this question, and found particularly interesting (though not recent) articles by social science researchers which could assist both parties and mediators in their participation in mediation sessions.
In “Time Pressure in Negotiation and Mediation,” a 1993 article, Professors Peter Carnevale, Kathleen O’Connor and Christopher McCusker, then professors in the Department of Psychology, University of Illinois (“Carnevale, et al.”), reviewed the scientific research to that date on HTP in negotiation generally, and mediation in particular, to identify common themes, interesting questions, possible outcomes of differing HTPs and resulting behaviors. It is only possible here to review possible conclusions of (not the methods of) the research and suggest actions to be taken accordingly by mediation participants to benefit their outcomes. [This article was one of 18 chapters in a larger volume entitled “Time Pressure and Stress in Human Judgment and Decision Making” (Plenum Press 1993). The article, as did the other chapters, discussed the effect of HTP in negotiation generally; it then discussed the effects of such pressure on mediation in particular.]
The authors initially noted that the three strategies primarily used in mediation are: Continue reading »
10/7/16 1:13 PM
Litigation, Mediation & Arbitration | Comments Off on Hurry Up! We Have a Plane to Catch! The Effects of Time Pressure on Negotiation and Mediation |
Hurry Up! We Have a Plane to Catch! The Effects of Time Pressure on Negotiation and Mediation
By Jeffrey R. Schmitt
Drones are all the rage. Actually, drones are causing quite a rage as well.
Last weekend’s Super Bowl in Arizona was a “no drone zone,” where flying drone aircraft for purposes of getting a better view of the action was prohibited. In fact, all NFL games are no-fly zones for drones, as are nearly all professional sporting events and other outdoor stadium events where more than 30,000 people are present.
Drones are threatening to interfere with air travel near airports, and one crashed on the White House lawn recently. The recent explosion of drone usage by the public has even caused one major drone manufacturer to begin a software update for its vehicles that will prohibit them from entering air space in Washington, D.C., or near airports.
Unmanned aerial vehicle (“UAV” or drone) technology is one emerging area where the speed of technology has eclipsed the speed of the law. If you were lucky enough to receive a drone as a gift during the holidays and want to use it for personal use, the good news is that the Federal Aviation Administration (“FAA”) is not stopping you from doing so, as long as you do so in a reasonable manner and do not infringe on others’ rights.
However, commercial use of drone technology is a different story. Continue reading »
02/3/15 1:02 PM
Business Law, Litigation, Real Estate | Comments Off on No-Fly Zones: Using Drones for Commercial Purposes |
No-Fly Zones: Using Drones for Commercial Purposes
This summer, Missouri voters approved an amendment to the Missouri Constitution protecting electronic data from searches and seizure by law enforcement officers.
Article I, Section 15 of the Missouri Constitution closely resembles the Fourth Amendment to the Federal Constitution: both provide that the people shall be “secure in their persons, papers, homes and effects from unreasonable searches and seizures,” and that law enforcement must demonstrate probable cause before obtaining a search warrant. The recent amendment modifies Section 15 so that it now explicitly protects “electronic communications and data” and requires police to “describe the data or communication to be accessed as nearly as may be” when applying for a warrant.
Surprisingly, the amendment might have ripple effects far removed from searches conducted by law enforcement. Continue reading »
12/2/14 1:11 PM
Business Law, Digital Media, Litigation | Comments Off on Electronic Privacy Amendment May Have Broad Implications for Use of Digital Information |
Electronic Privacy Amendment May Have Broad Implications for Use of Digital Information
By Laura Gerdes Long
4.5M Records Stolen, HIPAA violation
In June 2014, hackers in China used high-end, sophisticated malware to launch criminal cyber-attacks to access patient information from a national hospital system. Community Health Systems, Inc. (“CHS”), operates 206 hospitals across the U.S. in 29 states, including four located in Missouri (Kennett, Kirksville, Moberly, and Poplar Bluff). The breached data is considered protected health information under the Health Insurance Portability and Accountability Act (“HIPAA”).
In a filing with the U.S. Securities and Exchange Commission, CHS said the attacker was an “Advanced Persistent Threat” group which bypassed CHS’ security measures, successfully copying and transferring certain data outside CHS. Although CHS has confirmed that this data did not include patient credit card, medical, or clinical information, the breach does include patient names, addresses, birth dates, telephone numbers and Social Security numbers. CHS has been working closely with federal law enforcement authorities in connection with their investigation and potential prosecution of those determined to be responsible for this attack.
Under various state and federal laws, CHS is obligated to notify affected patients. The Department of Health and Human Services provides a web page describing the breach notification requirements of covered entities to effected individuals, the Secretary of Health and Human Services, and, in certain circumstances, to the media. Continue reading »
08/19/14 8:29 AM
Health Care, Litigation | Comments Off on Hacked Hospital Network Includes Outstate Missouri Hospitals |
Hacked Hospital Network Includes Outstate Missouri Hospitals
By David A. Zobel
Missouri has once again amended its credit agreement statute of frauds to limit the ability of borrowers and guarantors to assert claims against lenders and the parties’ written credit agreement based upon oral promises or commitments. Specifically, Senate Bill 100, effective late 2013, extends Missouri’s prohibitions to reach not only oral, but now also unexecuted agreements or commitments to loan money, extend credit, or to forebear from enforcing repayment of a debt if the parties’ credit agreement contains certain disclaimer language as provided in the statute.
Extending the prohibition specifically to unexecuted agreements between the parties became necessary after Mo. Rev. Stat. 432.047 was limited by the Missouri Court of Appeals in its Bailey v. Hawthorne Bank decision. In that case the Court of Appeals broadly construed several different bank documents, including a bank loan summary which was never delivered to the borrower, to find a “credit agreement” as that term is used in the statute. Continue reading »
01/16/14 1:36 PM
Banking and Finance, Litigation | Comments Off on Missouri Changes Its No-Oral-Credit Agreement Disclaimer Language Requirements for Lenders |
Missouri Changes Its No-Oral-Credit Agreement Disclaimer Language Requirements for Lenders
By David A. Zobel
A St. Louis bookkeeper recently pled guilty to wire fraud for embezzling more than $70,000 from his condominium association. His scheme spanned more than two years and involved more than 50 unauthorized wire transfers from the association’s financial accounts to the bookkeeper’s own personal bank accounts. Unfortunately for condominium and homeowner associations, this type of activity is all too common and demonstrates the critical need for associations to prepare and implement systems of financial checks and balances.
What each association’s system should entail to sufficiently reduce the risk of improper financial activity (while also recognizing the need for effective and responsive management) will vary from association to association depending on several factors, including association size, level of involvement from the homeowners, and governing rules. However, many effective systems begin with distributing financial supervision and actions between several individuals. This practice includes: Continue reading »
11/18/13 1:58 PM
Condominium and Homeowner Associations, Litigation, Real Estate | Comments Off on Condo Association Embezzlement Case Demonstrates Need for System of Financial Checks and Balances |
Condo Association Embezzlement Case Demonstrates Need for System of Financial Checks and Balances
By Jeffrey R. Schmitt
Last week, the NFL announced the settlement of litigation with former players claiming ongoing health challenges and medical problems associated with post-concussion syndrome. The effects of repeated and severe concussions from playing football (and other contact sports) has become a significant topic for the sports, medical and legal worlds alike in recent years. What was previously not considered to be a barrier for participation is now giving substantial pause when it comes to weighing the benefits of the sport, especially at the amateur level.
While many consider the NFL’s reported settlement a victory considering the potential damages and the duration of the proposed payout by the league, the issue is likely to create a ripple effect on amateur sports, especially at the youth and high school level.
The NFL and most colleges and universities have the financial ability and insurance coverage to defend and/or settle the increasing legal challenges, but lower level organizations, such as school districts, private schools, and private or charitable athletic organizations, might not. Along with this may come increased costs in the way of medical and training staff as well. Continue reading »
09/3/13 2:14 PM
Litigation | Comments Off on Concussions and Litigation: the Beginning of the End for Youth Football? |
Concussions and Litigation: the Beginning of the End for Youth Football?
By Laura Gerdes Long
In a battle between a state statute and the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d to d-9), the Eleventh Circuit Court of Appeals has held that a Florida statute is preempted by HIPAA because it is an obstacle to the “accomplishment and execution of the full purposes and objectives of HIPAA in keeping an individual’s protected health information strictly confidential.” OPIS Management Resources, LLC, et al. v. Secretary Florida Agency for Health Care Administration, No. 12-12593 (11th Cir. April 9, 2013).
OPIS, and the other plaintiff parties, are operators and managers of skilled nursing facilities in Florida. In the course of their operations, the nursing facilities received requests from spouses and attorneys-in-fact for the medical records of deceased nursing home residents. Because the parties requesting the records were not “personal representatives” pursuant to HIPAA and its implementing regulations, the facilities refused to disclose the records. As a result, the requesting parties filed complaints with the U.S. Department of Health and Human Services Offices for Civil Rights, which concluded that the nursing facilities acted properly.
The Florida Agency for Health Care Administration, however, issued citations against the nursing facilities for violating Florida law by refusing to release the records because the state statute requires licensed nursing homes to release a former resident’s medical records to the spouse, guardian, surrogate, or attorney-in-fact of any such resident. Fla. Stat. § 400.145(1). Because of the conflicting interpretations of the relevant laws, the nursing facilities filed a complaint for declaratory judgment. The district court granted the nursing facilities’ motion for summary judgment, explaining that the Florida statute affords nursing home residents less protection than is required by the federal law; therefore, the state law is preempted by HIPAA.
Stricter Federal HIPAA Law Trumps State Law
At the heart of the issue is whether the state statute, in which the “unadorned text…. authorizes sweeping disclosures, making a deceased resident’s protected health information available to a spouse or other enumerated party upon request, without any need for authorization, for any conceivable reason and without regard to the authority of the individual making the request to act in a deceased resident’s stead,” conflicts with federal law, according to Judge Susan H. Black. Finding that it does conflict, the jurist wrote, the state law “frustrates the federal objective of limiting disclosures of protected health information” and is therefore “preempted by the more stringent privacy protections” imposed by federal law. Continue reading »
04/17/13 2:37 PM
Health Care, Litigation | Comments Off on HIPAA vs. Florida and HIPAA Wins! |
HIPAA vs. Florida and HIPAA Wins!