10.12.09
Posted in Uncategorized at 7:13 pm by Eric
I hear it all the time: “That guy who owes me money filed bankruptcy, but don’t worry about it. He’s going to pay me. He didn’t list me on his schedules.”
Problem is, the mere fact that you’re not listed on the schedules doesn’t mean your claim isn’t discharged in the bankruptcy. If you’re listed on the schedules or you have notice of the bankruptcy, your claim is extinguished during the bankruptcy (unless you file an adversary proceeding to prevent it from being discharged).
And even if you’re not listed on the schedules and don’t have notice, you’re probably out of luck. The debtor must merely file a Motion to Reopen the case. It’s an easy Motion to file, and in the Western District of Michigan, they make it real easy: The judge will enter an order that says, “This case will be re-opened, but only if the omitted creditor first files an adversary proceeding to contest the discharge, along with an affidavit that swears the creditor didn’t know of the bankruptcy while it was pending. If the creditor doesn’t file the adversary proceeding and affidavit within 60 days, the claim will be deemed discharged.”
In other words, the bankruptcy court puts all the work on the creditor, instead of the debtor. As a practical matter, unless you have grounds to object to the debtor’s discharge (such as fraud, criminal act, etc.), it’s not worth hassling the debtor. Just assume your claim got wiped out with everyone else’s.
Aside: If you attempt to collect a discharged debt, you’ll be in violation of a federal court injunction. It’s serious stuff. You’re probably better off messin’ with Sasquatch.
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10.05.09
Posted in Uncategorized at 6:47 pm by Eric
I have a friend out in the stix. He has neighbors, but it’s definitely rural; nothing but woods and fields. He’s an individualist with a unique personality, but lots of friends. He likes to work a little, farm a little, and drink a little.
One day, he decided to combine all three: He was going to make vodka. He’d take corn, turn it into mash, let it ferment, distill it many times, filter it, and dilute it to 80 proof. As of today, he’s only a few months away from going commercial. As his attorney, I visited his still a little while ago and talked about the process . . . the legal process.
I was disgusted. Not surprised, mind you, but disgusted. The maze of regulations and requirements he had to traverse made my head spin. It took him over a year just to jump all the hurdles. Here’s a partial list:
Submit application to Michigan Liquor Control Commission, along with $1,000 application fee.
Obtain local governing body’s approval.
Confirm proper zoning and obtain necessary exceptions.
Attend training class(es).
Install specialized electric connections under the micro-management of a local bureaucrat, which was pretty much the electrical equivalent of an IRS audit.
Pass a local equipment inspection.
Pass a state equipment inspection.
Apply for a permit under the Federal Alcohol Administration Act.
Install an explosion-proof light (found on eBay for $2,000; new ones cost over $3,000)
Install appropriate locks and surveillance cameras to protect distillery from burglars.
Post a surety bond.
Submit bottle label to feds for approval, with application.
All that is just to get started. When he starts selling, the abuse continues:
He can only sell to state package dealers who enjoy a state-imposed monopoly, who will then charge a fixed price to retailers (bars and liquor stores).
When he sells his vodka to the state package dealers, he has to pay a 16% federal liquor tax. When the retailers later buy it, they have to pay heavy state taxes. The consumers later pay a six percent sales tax. On top of all that, of course, he has to pay state and federal income taxes on his net earnings, plus social security and medicare taxes. He already pays real estate taxes on the still. I didn’t have the heart to tell him that, once he goes into commercial gear, his local township can start imposing a personal property tax.
Only use corn produced by a farm that complies with Department of Agriculture requirements.
If he wants to market his vodka at a local bar, he can’t merely give away free shots. He has to pay the bar for a shot, then he can give it to the patron. Even if the bar owner doesn’t mind if he gives it away, he has to buy it.
Annual licensing fees.
Ongoing surety bond premiums.
And if he expands to the point of hiring employees, watch out: labor posters, minimum wage laws, overtime laws, Americans with Disabilities Act, workers compensation, discriminatory hiring/firing practices, bogus lawsuits for sexual harassment.
Neither of those lists, by the way, is complete. I didn’t keep notes when he told me about all the requirements. I’ve done some Internet research to make it comprehensive, but I guarantee you that I’m missing things. A guy can no more catalog all the legal requirements than he can catalog every single thing he does in an average week
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08.04.09
Posted in Uncategorized at 8:14 pm by Eric
Received in a Michigan lawyer listserve email from a respected attorney out of Detroit:
[T]he DEQ is pushing forward with a new legislative initiative to do away with the BEA, possibly to require every property owner in the state to investigate their own property and report on same to the DEQ and to ramp up so called “due care” possibly to require remedial work at levels (and costs) that previously were unheard of. They are also talking about modifying their closure process but, there too, there is concern that there may be less finality and certainty than there is now.
I know many business owners, lenders and developers are looking at this initiative which MDEQ has been releasing in bits and pieces for some months with great consternation and concern about the chilling effect it would have on business in Michigan at a time when the State can ill afford it.
I would be happy to speak to anyone interested in getting information about this legislative initiative (which is far more than merely rewriting policies). The one bit of good news is that there is still an opportunity to turn this Titanic before it hits the iceberg.
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08.03.09
Posted in Uncategorized at 9:15 pm by Eric
Been seeing lots of removed material on YouTube? This might be why: The Digital Millennium Copyright Act (DMCA) imposes penalties for infringement of copyrighted works as well as safe harbor provisions for online service providers and other intermediaries. To be protected by the safe harbor, the service provider must block access or remove material for which a copyright holder claims infringement. The copyright holder sends a “takedown notice” to the service provider at the email address published by the provider for that purpose. The service provider must, for the safe harbor to apply, remove the material and notify the user who posted the material that the material was removed pursuant to such a request.
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06.11.09
Posted in Uncategorized at 9:30 pm by Eric
If you use blue ink to sign a deed in Indiana, the Recorder’s Office may charge you an extra dollar in recording fees.
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05.08.09
Posted in Uncategorized at 3:45 pm by Eric
Ten Most Bizarre Moments in Legal History. Pretty good list. Sample:
Heather Mills, upset with what she regards as a paltry $48.6 million alimony settlement from her ex, Paul McCartney, takes justice into her own hands during a hearing earlier this year. Grabbing a pitcher of water, she dumps it on Fiona Shackleton, McCartney’s attorney. How hated is Mills? For the first time in history, the world sympathizes with a rich man’s divorce lawyer.
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04.21.09
Posted in Uncategorized at 11:50 am by Eric
If you hadn’t noticed, the Supreme Court has been awfully quiet. There have been no media-circus rulings or other major developments. That’s about to change:
It’s the final argument cycle of the current term, stocked with cases that could define the Roberts Court anew, on issues ranging from search and seizure to Iraqi immunity, affirmative action to voting rights. Parties include a swashbuckling CBS newsman, a middle school student accused of possessing ibuprofen, and a group of white New Haven, Conn., firefighters.
For now, everyone seems to be buzzing about a case to be argued tomorrow called Safford Unified School District #1 v. Redding. At issue: whether officials at an Arizona middle school acted within the bounds of the Fourth Amendment when they strip-searched a female student after suspecting she was hiding prescription-strength Ibuprofen in her underpants. (The suspicion was based largely on a “tip” from a fellow student.)
The upcoming session has it all: sex, race, drugs. We won’t even have time to watch the NBA and NHL playoffs.
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03.31.09
Posted in Uncategorized at 11:34 am by Eric
You want to sue your broker for your portfolio’s poor performance? To me, that’s like suing your bartender for your hangover, unless there’s fraud involved (the bartender putting gin in your beer without you knowing it). Still, the courts recognize a slew of potential causes of action that all presume a measure of poor performance: negligence and breach of fiduciary duties (claims that boil down to suitability: “you sold me a stock that wasn’t suitable to my situation”), lack of disclosure, breach of contract (though, interestingly, no reported Michigan decision sets forth the elements of a breach of contract claim against a broker), misrepresentation, and even churning (fraudulent over-trading to inflate commissions).
If you think your broker spiked your beer, see a professional.
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