BankAmerica Takes Possession of Wrong House and Parrot.
Posted by Cliff Tuttle| March 9, 2010 | © 2010
The Pittsburgh Tribune Review reports that a contractor for BankAmerica entered a house that it thought it had acquired through a sheriff sale, removing the personal property, including the owner’s parrot.
The Complaint asserts numerous causes of action. However, the case is a slam dunk and the only issues is the amount of damages. After a mortgage foreclosure (which hadn’t happened) and sheriff sale, if the former owner doesn’t remove, the plaintiff must file a new suit to gain possession and obtain a judgment. Then it must obtain a writ of possession, deliver it to the sheriff and wait for the date that the sheriff schedules for eviction.
The only defense, if you can call it one, is that BA made an honest mistake. Unfortunately, no matter how you slice it, one or more of the defendants (essentially BA and its contractors) was negligent.
So BA is going to pay. You can take that to the bank.
CLT
Book Review: “Flip It”
Posted by Cliff Tuttle| March 9, 2010 | © 2010
Once there was a young blind woman who was very unhappy with her life. She complained continuously and nobody liked her very much. Nobody, that is, except her boyfriend, who was deeply in love. He begged her to marry and at length she told him she would marry him after an organ donor was found and her sight was restored.
In time, an anonymous donor was found and the transplant took place. When the bandages were unwound and the young woman began to see, she had a rude shock. Her boyfriend’s eyes were shut. She had never considered the possibility that he might be blind.
“I can’t marry you,” she told him. “I would never be able to look at your closed eyes for the rest of my life. It would remind me how unhappy I was when I was blind.” So the young man went away in sadness.
About a week later, she received a letter from her ex-boyfriend. “Take good care of your eyes, ” it said. ”They used to belong to me.”
This story appears near the end of a short book entitled “Flip It.”. The author, Michael Heppell, asked readers: how could this dilemma have been resolved? He doesn’t give the answer, but I suspect that the most common suggestion he received was that the young man donate one eye. I think that is an unsatisfactory answer. More about that at the end of this book review.
“Flip It” is a book about the way you and I think and how to change it. When the way we think gets in the way of solving a problem, reaching a goal or even happiness itself, there is a way to change the outcome by changing the way we think. Its not that hard — just “flip it.”
Instead of asking, “why does this always happen to me?”, ask:
• How did this happen?
• How can I get back on track quickly?
• How can I avoid having it happen again?
• What can I learn from this experience?
The word “why” is a “dis-empowering” word. It implies that others are doing unto you and there is not much that you can do for yourself. It leads to answers that don’t change the dilemma.
The word “how”, on the other hand, is an “empowering” word. It acts as a key to change.
Michael Heppell suggests that a change of perspective — flipping it — changes the mind set, changes the perceived available options, changes the outcome. If you tell yourself that you are too tired or hopelessly out of time, chances are you will let yourself off the hook on your resolution to exercise. These are common excuses for inaction. But if you “flip it” and say that you could use more energy or need to find some time, possibilities start to become evident.
While “flipping it” is a mental exercise useful to anyone, it is particularly beneficial to a lawyer. When a client comes to a lawyer, he usually brings along a big problem that must be addressed immediately. Often the client thinks he is in a box — trapped with no apparent (to the client) way out.
Nevertheless, a creative lawyer may be able to flip the issue on which the case turns from a loser to a winner. Sometimes this involves observing seemingly innocent facts and getting them on the record, to point out their significance later, after the record is closed.
Heppell applies the flip it technique to a wide variety of life situations in the book. However, the challenge is always the same. A mind set must be overcome by flipping limiting ideas and assumptions on their head and attacking the problem from the new perspective of the rear or the flank or perhaps even the top or bottom.
So now lets return to the formerly blind girl and her newly blind lover.
If you suggest that he should have given her only one eye, I have several objections to the efficacy of that solution. By the time the dilemma has been presented to us, the donation had already been made. Moreover, seeing her boyfriend’s one blind eye would presumably still have reminded her of her former blindness.
The real problem was that she was still hung up on blindness as a source of unhappiness. Moreover, she was incapable of viewing the circumstance from any perspective but her own. Even after gaining sight, the image of her husband-to-be without eyes brought the old feelings back. Did she ask herself “why do these things happen to me?” Probably. Stuck in a rut.
This is a mental problem and can only be cured by a change of mind. The solution is to confront this mental roadblock with a mind flip. So you ask: “How could that mental change be effected?” Eureka! At last we’re asking the right question!
The answer is, he already did it.
When she learned that he donated his own eyes, she should have suddenly realized that he loved her so much, wanted her to be happy so much, wanted to marry her so much, that he paid an incredible price to give her the gift she most desired in life. This stunning information should have created a mind flip of gigantic proportions. Suddenly, his closed eyelids would no longer be a reminder of her old unhappiness, but would take on the new meaning of his deep and selfless love. Now, when she gazed upon her blind husband, she would be filled with happiness and gratitude.
But then again, maybe not. Maybe the feelings of self pity were so strong and deeply ingrained that she could never flip them to gratitude and happiness. And if that turns out to be the case, it is just too bad.
But at least he found out before making a lifetime commitment what his bride-to-be was truly like. If she is so flawed that she could not find happiness in such a gift, he is almost certainly better off without her. At least, he still has a chance to find someone who can love and cherish him for who he is and perhaps he can find the happiness which would have been absent in a marriage to his former girlfriend.
I recommend that you try “Flip It” as an audiobook, read by the author. Then go forth and flip some of your most cherished and useless beliefs.
CLT
Roethlisberger Media Coverage: A Refresher on the Presumption of Innocence.
Posted by Cliff Tuttle| March 7, 2010 | © 2010
As yet another high profile case gets big time media attention, it is necessary for us to remind ourselves that news coverage is not a trial and news reports are not evidence.
Recently, the story of an accusation of sexual assault at a nightclub in a Georgia college town hit the news before there was any substantive news to hit. The fact that one of the participants in the events of that evening was Ben Roethlisberger set off big time news coverage, despite the fact that no official accusation has been made by the police. No one has been arrested and no one has been charged.
A classic illustration of the reason behind the principle that accused persons must be presumed innocent until a fair trial has been conducted was the premature punishment of members of the Duke University soccer team by the University administration and unofficially by practically the entire community. The University administration couldn’t wait for a judicial determination to run its course and took hasty action without due process. Eventually, the prosecution case collapsed under its own weight. The prosecutor himself was eventually disbarred for falsifying evidence. We should always bear in mind that such things can and do happen. When they do, lives can be irreparably harmed and even destroyed.
News stories, even when carefully written are not evidence. The refusal of defense counsel to air his or her theory of the case in the press means nothing, except that the proper time and place is at trial. But, in case we have forgotten, the defense doesn’t have to say a thing, not even to the judge and jury. The prosecution must prove its case with probative and relevant evidence beyond a reasonable doubt.
Beyond a reasonable doubt: what does that mean? It means that, after hearing all of the admissible evidence, the finder of fact must find the accused not guilty if there is room for reasonable doubt. The accused must be given the “benefit of the doubt”, provided that the doubt is reasonable.
The human mind automatically seeks to make sense out of the perceptions referred by the senses. Suspending judgment requires us to consciously hold this automatic tendency at bay. This is a mental discipline worth cultivating. It enables us to take a more considered view of other matters, matters within our personal sphere of influence, that can easily be misjudged before all of the facts are available.
In this media-driven world, there is plenty of opportunity to practice this skill.
Tags: Ben Roethlisberger > beyond a reasonable doubt > media > presumption of innocence > sexual assault
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Friends Don’t Let Friends . . .
Posted by Cliff Tuttle| March 6, 2010 | © 2010
In Superfreakonomics the authors made the case, based upon statistics for accidents per mile, that it was more dangerous to walk home than drive home when drunk. And so, they ripped off a piece of Americana with the slogan: “Friends don’t let friends walk drunk.”
So, Dubner relates, the ad exec who coined this memorable phrase introduced herself to him recently. He also found a legal ad from a DUI lawyer who may receive a cease and desist letter soon. Is there a servicemark infringement case here? Decide for yourself.
CLT
Run, Baby, Run!
Posted by Cliff Tuttle| March 6, 2010 | © 2010
The Solo Attorney Practitioner’s Forum has been having a long discussion (just passed 110 comments) on the subject of “when should you RUN from a potential case?”
The commenters have suggested avoiding clients who:
• Have had multiple lawyers on the same case;
• Badmouth prior lawyers;
• Arrive at the first interview with a shopping bag full of paper;
• Forget to bring their checkbook when told they will have to pay a consultation fee or retainer;
• Don’t tell you about harmful evidence until you have entered an appearance;
• Give you a bad feeling from the beginning;
• Tell you that this is a “slam-dunk” case;
• Are relatives;
• Appear shortly before the statute of limitations expires;
* Argue about fees;
• Think that the judge and former attorney have been bought off.
And that is only the beginning. I wonder what clients are saying about when to run from a lawyer.
CLT
In Case Your Wallet is Lost or Stolen.
Posted by Cliff Tuttle| March 4, 2010 | © 2010
Here is your to-do list to protect yourself from identity theft:
Scan everything in your wallet (front and back) and label the file so that you can find it. Review and update the information periodically. The most effective way for a consumer to protect against unauthorized information being used to open credit cards is to institute a security freeze. Pennsylvania law requires the three credit reporting agencies (Trans Union, Experian and Equifax) to freeze access to your credit card files if you give them written instructions and pay a $10.00 fee. This means that even if a potential identity thief has your personal information, he can’t use it to obtain a credit card because the card issuer won’t be able to check your credit unless you “un-freeze” the account. If you later want to buy a car or a house, you can remove the freeze and then reinstitute it when you are finished.
However, if you didn’t do that, for whatever reason, cancel the cards and contact the three credit reporting agencies immediately after discovering that your wallet is missing and request a fraud alert. Here are the numbers:
Equifax: 800-525-6285
Experian: 888-397-3742
Trans Union 800-680-7289
In addition, the Social Security Administration has a fraud reporting line at 800-269-0271.
If you lose the numbers, you can always dial up this blog and use the search box. The words “identity theft” will get you to this article. So will the name of any of the three credit reporting agencies. Remember:speed is of the essence. The identity thief will be racing against you.
CLT
Features of This Blog.
Posted by Cliff Tuttle| March 2, 2010 | © 2010
The “new look” of Pittsburgh Legal Back Talk is more than just looks. We have added some great new features that should make the blog more useful. A contact form has been installed on the right sidebar . Any reader can contact me privately via this form.
You can also research the site in several ways. Just below the contact box is a line that says “Subscribe to our feed.” If you click the RSS symbol and fill in the information requested, you will begin to get our our posts regularly via email.
Just below the RSS Feed button is a box to search this site by key words. Try it. It works.
You can also search by category by clicking any of the topics on the left sidebar. Thus, if you want to catch up on the prior posts on mortgage foreclosure, click on that category and you will get them in reverse order of publication.
The same is true with the categories and tags at the end of each article. Click a tag and you can read any other articles that contain the tag. We just passed 400 posts, so there is a lot of content to search with more to come.
And, of course, I’ve started adding pictures.
CLT
Pittsburgh Legal Newslog:Obama Floats Trial Balloon to Stay All Residential Foreclosures Pending HAMP Modification Review.
Posted by Cliff Tuttle| March 1, 2010 | © 2010
March 1, 2009 DSNews.com
Under this proposal, all residential mortgages in default would be screened to determine whether they could be modified under HAMP guidelines before foreclosure would be permitted to proceed.
CLT
400
Posted by Cliff Tuttle| March 1, 2010 | © 2010
Today is March 1, 2010 and this is post No. 400 on Pittsburgh Legal Back Talk.
Most blogs don’t make it to 400 posts. Its a lot of work. Its a lot of time that could have been spent doing something else. So why?
It brings happiness. That’s why.
Lawyers are reputed to be an unhappy lot. Many of us are withholding happiness until some stated goal is attained. However, and here’s the catch, when we start to get close we’ll sneak out in the middle of the night and move the goal posts. If you won’t allow yourself to be happy until you reach some goal, you will never be happy — ever.
Writing this blog lets me be happy, at least for part of the day, right now. That’s why I posted the last 399 times. That’s why I’m doing it now for the 400th. Pretty simple, huh?
It has also helped me be aware of other things that bring the same feeling. They can be as simple as watching a favorite television show with my wife. Or listening to Mozart. Or taking a walk with the dogs.
Happiness can be purchased a la carte. It isn’t an all or nothing proposition. It is a state of mind, a transcendental state of mind. It is so close that any of us can reach out to easily touch it. All we need to do is be aware, be mindful. It does not even require an absence of pain and suffering. Victor Frankel observed people experiencing happiness in a concentration camp.
In my case, with apologies to Charles Shultz, happiness is a warm blog.
CLT
#snOMGpgh on Twitter
Posted by Cliff Tuttle| March 1, 2010 | © 2010
If you want to hear others complain about the snow, or do a little yourself, check out the category known as #snOMGpgh on Twitter. If you’ve been on Twitter and wondered what the hash mark in front of words are about, click on one. They are key words. The tweets from everyone that use the key word (with the hash mark) are grouped together and you can read them all on the page for that key word.
Its a pretty clever word, or whatever you call it.
Pretty clever of those Pittsburghers, no? OMG. yes!
CLT
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