While summer is winding down in West Michigan, many may have noticed an uptick in mosquitos in the area. Though annoying, these minor pests are not long for this world. Fall, then winter, will soon be upon us and many will be longing for the days when a mosquito bite or two were the worst of their worries as they dig their cars out from underneath piles of snow or attempt to avoid sliding off iced-over roads on their way to work.
Most people possess one or more bank accounts. Normally, we can handle our finances without assistance. However, there are times in our lives when age, illness, or other circumstances prevent us from managing our financial affairs. Generally, this affects us most when we lack the physical capacity to pay for goods or services. Commonly, people will try to resolve this issue by adding a family member or close friend to their bank accounts. This process is completed at a financial institution by signing a few forms and generally takes less than an hour. The intent is for the added individual to pay for goods or services when we cannot. In reality, what we have created is a co-owner of our bank account that gives the new owner certain rights that do not always fit the intent and desires of the original owner. This is because adding the new owner makes the account Joint Property.
One thing I often find myself saying to clients is, “Don’t throw away anything!”, particularly if they are being pursued by a debt collector or collection attorney. Although people being sent threatening letters likely have little interest in reading them, those letters constitute some of the core evidence that can be used against collectors in court. Moreover, in certain instances where a debtor has failed to properly respond to a complaint, their mail may include notice of a default being entered against them, along with information on how they may stop the default from being converted into a default judgment (which, at the district court level, can be very difficult to set aside). Nobody likes to receive bad news in the mail, but that “bad news” may be crucial in determining if a client’s rights under state and federal law have been violated.
There is a common misconception among debtors, lawyers, and judges that when someone is sued on a debt, say medical or consumer debt, that they not only owe that debt, but they have no valid defenses or counterclaims against the party suing them. In today’s late-capitalist environment, debt collection is a massive industry, albeit one with shockingly few internal safeguards. For instance, law firms that take on debt collection suits will sometimes file thousands upon thousands of such suits each year with only a minimal number of attorneys on staff. What that means is that their debt-collection complaints are often cookie-cutter forms with few facts accompanied by little-to-no documentary support. For instance, it is not uncommon to find complaints filed in Michigan district courts alleging breach of contract or account stated (i.e. an assertion of an amount owed) with no proof that there was a valid contract or any documents (including affidavits) asserting that the accounting of what is owed is in any sense accurate.
The Telephone Consumer Protection Act (TCPA) is under attack. Enacted in 1991 for the express purpose of protecting consumers from telemarketer harassment and so-called “robocalls,” the Act has become a powerful tool for consumer-protection attorneys to discipline those industries that rely on robocalling. However, through shifts in technology and clever equipment settings, robocall-reliant industries continually attempt to evade the TCPA’s definition of an automated telephone dialing system (ATDS). Thankfully, the Federal Communication Communications Commission (FCC) and the courts have taken a broad view of what constitutes an ATDS in order to ensure that the TCPA’s intents and purposes are upheld even in the face of technological change. Now the FCC is being pressured by industry groups into eviscerating the Act’s definition of an ATDS, thus opening the door for a tidal wave of telephone and SMS text message harassment.
Objections to the availability of bankruptcy are bountiful, with a majority relying on implicit “moral” arguments that too often miss the point. In the commercial realm, anti-bankruptcy arguments tend to be a bit more sophisticated. For example, in an era of global trade in goods and services where state-backed subsidies are typically frowned upon, Chapter 11 bankruptcy protection in the United States is perceived as “cheating.” For instance, in the realm of air services trade where European states have long publicly subsidized their respective air carriers, the U.S. has cried foul since its airlines are ostensibly exposed to the forces of raw competition without recourse to the public piggyback when times get tough. While the creation of a common aviation market within the European Union has reduced the availability of subsides for Union member state carriers, these airlines argue—with some plausibility—that Chapter 11 operates in much the same way as a subsidy, shielding U.S. airlines from the natural effects of competition, namely exiting the market altogether.
Karl Llewellyn, one of the towering legal minds of the 20th century who helped give birth to Legal Realism, maintained a distinction between “paper rules” and “real rules” (or “working rules”). Paper rules, according to Llewellyn and other Realists, are what you find when you crack open, say, the Michigan Court Rules or the Michigan Compiled Laws; real or working rules are the actual rules judges apply or the decisions they render, often in a manner liberated from the text. This is not to say that judges don’t follow any rules. Rather, according to the Realist movement, judges follow rules that are, in part, of their own devising. It is the role of jurists, then, to ascertain what those rules are, how they will be applied, and which judges prefer them.
Listeners of the hit podcast Casefile may recall last August’s episode dealing with the 1998 disappearance of Amy Lynn Bradley aboard a cruise ship owned by an American corporation but registered or “flagged” in Norway. The phenomenon of ships being registered in foreign countries has come to be known as the “flag of convenience” problem. Because a ship primarily follows the laws and regulations of the country where it is flagged, there is an incentive for ship owners to register their craft in states with loose oversight of safety, security, and labor issues. The Bradley case, which made headlines around the world, proved vexing to American investigators as the Norwegian registry of the ship coupled with its port location when Bradley went missing (Curacao) dictated in large part the laws that had to be followed. While some steps have been taken since 1998 to address this problem, flags of convenience remain a common feature of the maritime industry.
Giambattista Vico, writing in chapter two of his De Antiquissima, observed: “An esteemed jurist is, therefore, not someone who, with the help of good memory, masters positive law, but rather someone who, with sharp judgment, knows hw to look into cases and see the ultimate circumstances of facts that merit equitable consideration and exceptions from general rules.”