Washington County PA Adopts Mortgage Foreclosure Diversion Program

Posted by Cliff Tuttle

On April 29, 2009, Judge Debbie O’Dell Seneca announced the establishment of a Mortgage Foreclosure Diversion Program for owner occupied single family mortgages in foreclosure. A notice will be attached to every qualified mortgage foreclosure complaint served, explaining that it is possible to obtain a 90 day moratorium by completing a training course conducted by Southwestern Legal Services. The course will be given on May 13 and every Wednesday thereafter in the Washington County Court House. The Washington (PA) Observer-Reporter published this story on the program.

Unlike the very successful Philadelphia mortgage foreclosure diversion program and the newly inaugurated Allegheny County program, Washington County does not conduct judge supervised mediations. The reason why probably has to do with a severe shortage of judge time.

Nevertheless, it is hard for PLBT to see how lenders will be motivated to do much more than wait out the 90 day moratorium without a mediator who has the power to hold their feet to the fire. Perhaps Southwestern Legal Services, who is administering the program, has some ideas on the subject. Southwestern told the O-R that it had discussed the subject with judges in Greene and Somerset Counties, who showed interest and that it hopes to introduce the program into Fayette County next year. PLBT will follow the diversion program in Washington and any other Pennsylvania Counties who adopt a similar program and report on developments.

CLT

Category: Uncategorized

Criminal Law: The Folly of Representing Yourself in Court.

Posted by Cliff Tuttle

Acting as your own lawyer in a criminal trial is like trying to play the piano in a public recital without lessons or practice. Yet criminal defendants do it and it inevitably seals their fate. Yes, there are probably exceptions that have occurred from time to time in the history of the world. But if there are, they are the kind of strange events that prove the rule.

If you think you ever might consider representing yourself in a criminal case, read this article in the Pittsburgh Post Gazette by Daniel Malloy.

The fact is, very few people should be representing themselves in any case, even lawyers. Being personally involved in the outcome changes your perspective and affects your judgment. Talking too much is always dangerous, but especially so for the self-represented. Every time you open your mouth, you are in effect testifying. In fact, as every successful trial lawyer knows, everything you say and do in court alters the judge’s and jury’s perception of you and your case. Just sitting up straight and looking sincere and respectful will probably be enough of a challenge under this kind of stress.

Trust me. You can’t think on your feet when you are preoccupied thinking about your fate.

But the most important reason why you, or any party to a court proceeding of any kind, needs a lawyer is that the lawyer has the training and experience appropriate to the task and you in almost all cases do not. This disparity is painfully apparent when a represented party and an unrepresented party face each other before a magistrate or in an arbitration.

The unrepresented party usually does not know the rules. In the process, a pro-se (“for self”) litigant cripples the case with a host of predictable rookie mistakes. He or she is chastised for speaking out of turn, making a speech when it is time to ask a question or trying to interrupt. (Q: “Can I say something? A:”No. You’ll have your turn.”)

The case often fails because key evidence is missing or not presented properly. This make cases harder for magistrates and arbitrators, who frequently coach the hapless over the rough spots and bend over backwards trying to be fair. But in the end, a case that could have been proven but isn’t, will lose.

Going back to the criminal arena, there are other reasons apart from presentation of the case why you need a lawyer. The lawyer can talk to the police officer in a way that you cannot. In retrospect, after reviewing the evidence and your prior criminal record (or hopefully, lack of one) the officer may be willing to consent to a guilty plea to a lesser charge. Thus, a misdemeanor could be disposed of at pretrial by pleading guilty to a summary offense, such as the old standby, disorderly conduct. Without proper representation, you lose the chance to obtain a satisfactory outcome at the pretrial hearing.

In addition, you may be eligible as a first time offender for ARD (accelerated rehabilitative disposition). This program was adopted to protect non-violent first offenders, especially those involved in DUI arrests, from the stigma of a criminal conviction. You would have a period of several months of probation, pay a fine, receive attend counseling and education sessions and after successful completion of the requirements, start over with no record of a conviction. But to participate in ARD you must have a lawyer. The court will not accept your waiver of the right to trial unless the record reflects that you have reviewed the alternatives with counsel and are doing so with full knowledge of the consequences.

CLT

Category: Uncategorized

Am I Required to Testify in a Deposition?

Posted by Cliff Tuttle

A Pennsylvania resident asked a question on AVVO Answers concerning whether he is required to testify at a deposition. The answer is a qualified yes. Click on the highlighted word “question” above to read the question and answer.

A deposition involves testimony under oath. The court reporter who transcribes the testimony is a notary public and will administer an oath. That means that false testimony at a deposition could be subject to penalties for perjury, just as though it was given in court.

However, the right to depose a witness is not unlimited. The questions must be related to a suit or claim filed in court and must be reasonably calculated to lead to evidence that can be admitted at trial. If you object to the questions being asked for a legitimate reason, your lawyer may be able to obtain a protective order from a judge.

CLT

Category: Uncategorized

Allegheny County Base Year Assessment System Lacks Uniformity.

Posted by Cliff Tuttle

The Pennsylvania Supreme Court held in an opinion released on April 29, 2009 that the scheme adopted by Allegheny County for assessment of real estate utilizing a base year system lacks uniformity and is thereby unconstitutional.[James C. Clifton et al v. Allegheny County, No. 20 WAP 2007; Kenneth Pierce et ux v. Allegheny County et al, No. 21 WAP 2007.]

There has already been a great deal of ink spilled, with more in the coming days, analyzing and criticizing this decision. If the past is an indicator, most will be erroneous.

Cut to the essence, the opinion by Chief Justice Castile stated that under every accepted statistical test, the Allegheny County base year system, as implemented, is grossly unjust to some taxpayers while it unfairly rewards others. The court declined to find all base year systems invalid on their face (invalid in in all cases), as the trial court did. So, the decision is limited to Allegheny County’s current system — not to the similar systems in many other Pennsylvania Counties. They will have to stand or fall on their own facts and numbers.

By deciding the case in this fashion, the Court held open the door to the possibility that Allegheny County could devise a variation on its current system that would pass the constitutional test — that is, generate satisfactory statistics. It also contemplated that the real estate values some counties (possibly rural ones) have been changing in a more uniform way.

Allegheny County has long had a surplus of residential real estate, a product in part of population decline. After all of the demand has been satisfied, there are still plenty of properties left. This causes values of the properties in demand to rise over time, while the values of properties that cannot sell fall over time. The base year system could work reasonably well in a locality where properties are similar and rise at roughly the same rate. But as some property values consistently rise and others consistently fall, the gap between the rising and falling properties makes assessments increasingly unequal.

This disparity was amply illustrated by property value trends in the Woodland Hills School District between 2002 (base year) and 2005:

Braddock -16.03%
Braddock Hills +2.84%
Chalfant +13.26%
Churchill +15.7%
East Pittsburgh +14.94%
Edgewood +35.87%
Forest Hills +18.85%
North Braddock -8.99%
Rankin +6.37
Swissvale +16.34%
Turtle Creek +14.69%
Wilkins +14.65%

Category: Uncategorized

“Eat Cheese or Die!”: Clever, but Does It Infringe?

Posted by Cliff Tuttle

In the name of tourism, states, cities and other “destinations” are always trying to figure out new slogans. The problem is: there are a lot of them in use out there. Too many.

Wisconsin adopted a slogan recently and for all the pointed criticism, ridicule, laughter and bad publicity it inspired, they are probably wondering why they even bothered.

“Live Like You Mean It.”

The State paid $50,000.00 to a consultant for that. Unfortunately, among many other drawbacks, it infringes on advertising slogans for Bacardi Rum and a self help book.

On the positive side (this is probably what the ad agency told Wisconsin if they asked for the money back) it generated press coverage, including a column in the New York Times by Gail Collins that was read by millions who had a good laugh.

Of course, if they had wanted Americans to laugh with them, Wisconsin could have adopted the slogan that was the popular favorite with the people of the State: “Eat Cheese or Die.” On second thought, in an age where we are being constantly threatened with death through pandemic or Chinese-manufactured food products, perhaps the popular favorite slogan would have brought down an avalanche of bad publicity on the front page (and editorial page) of every remaining newspaper in the world.

Wisconsin is not the first. We had a nearly identical experience in Pennsylvania a few years ago and we survived to do it again.

Pennsylvania adopted a tourism slogan a few years back: “Pennsylvania: State of Independence”. They held a contest and this gem was the winner. After the announcement with much fanfare, it was learned that the new slogan was a registered trademark of Saab. The automaker graciously consented to the infringement, though, and everyone lived happily ever after.

It turns out that “Eat Cheese or Die” isn’t original either. Its been used on bumper stickers in Wisconsin for a while and was even mentioned years ago by University of Wisconsin law professor Ann Althouse in one of her enigmatic sentence fragments in her blog.

CLT

Category: Uncategorized

Landlord & Tenant: Suing for the Security Deposit.

Posted by Cliff Tuttle

If you moved on from your old apartment and received notice from your old landlord that he /she is deducting for damage repairs, you have a decision to make.

Read my AVVO Answer to a Pittsburgh ex-tenant on the subject.

How do you know you will win if you claim the money withheld in court? You don’t.

CLT

Category: Uncategorized

Commercial Lending: When Can the Bank Accelerate the Balance Due?

Posted by Cliff Tuttle

A commercial loan borrower from Pittsburgh emailed AVVO Answers stating that he/she is 2 months delinquent and has received a notice stating that the loan must be paid in full within 30 days. Can they do this?

Commercial loans are governed by the terms of the loan documents. It is common for the lender to be empowered to accelerate the loan balance upon a very short delinquency. But the lender must comply to the letter with the terms in the documents. Read my AVVO Answer.

CLT

Category: Uncategorized

Pittsburgh Legal Newslog: Swine Flu and Emergency Powers of the Government.

Posted by Cliff Tuttle

The government of Mexico has assumed emergency powers to contain the swine flu epidemic, while in the United States, Homeland Security Secretary Janet Napolitano announced a public health emergency and the release of flu medications from the stockpile maintained by the US government for such purposes.

On the state level, a uniform statute was proposed in 2001. An analysis of Pennsylvania’s preparedness for a public health emergency was the topic of a paper prepared several years ago through the auspices of the University of Pittsburgh School of Public Health. Only a few states have passed the model legislation and Pennsylvania is not yet among them. However, the Uniform Act has been criticized as an infringement upon individual rights in a recent speech by Susan Blevens in a 2009 Heritage Foundation lecture.

The current emergency may well move the Uniform Act to the front burner in many state legislatures, including Pennsylvania.

News reports:

New York Times (US declares public health emergency), April 26, 2009.

Associated Press, April 26, 2009.

Los Angeles Times, April 26, 2009.

China View, April 26, 2009.

Blogs and Commentary:

Live Science: the Basics, April 26, 2009.

Talking Points Memo, April 26, 2009.

Tech Crunch (panic spreads over the web), April 26, 2009.

The Business Insider (swine flu talk taking over twitter), April 26, 2009.

Kansas City Star (on panic), April 26, 2009.

Additional Fact: The final game of the 1919 Stanley Cup Hockey Tournament was cancelled and never played because of the great Spanish Influenza Pandemic which broke out at the conclusion of World War One.

Category: Uncategorized

Mortgage Foreclosure: The MERS factor.

Posted by Cliff Tuttle

Most people don’t notice when they sign a mortgage naming MERS (Mortgage Electronic Registration Systems) as the “nominee” of the lender. The purpose of MERS is to make it unnecessary to prepare, execute and record subsequent assignments of mortgages on public records. Instead, the assignments are supposed to be kept track of electronically in the data banks of MERS. A good summary of the MERS story is contained in an April 24 article in the New York Times.

But what is a “nominee” under the law? MERS doesn’t own the mortgage. It was simply named, for convenience, in place of the true owner. So then, why is MERS so often the named Plaintiff in mortgage foreclosures?

Lawyers defending mortgage foreclosures around the country have argued that MERS cannot be the Plaintiff in a foreclosure for the exact reason that it is not the owner of the mortgage. Moreover, the role of the role of a nominee for the owner is not defined in MERS mortgages, nor has it been specified by statute or case law. They argue that the mortgage foreclosure cannot occur so long as the mortgage is titled in the name of the nominee. MERS must assign record title to the true owner, who can then foreclose.

These are not mere technicalities. Lenders who join MERS created this conundrum. The statutes and rules of court that create the special remedy of mortgage foreclosure also require strict compliance with the statute and rules. That means that the Plaintiff must have a legal right to make a claim. If the true Plaintiff wants to make a claim under a statute, it must have its documents in order.

CLT

Category: Uncategorized

Landlord & Tenant: AVVO Answer on Terminating the Lease Due to Mice.

Posted by Cliff Tuttle

A tenant from Pittsburgh wants to know whether he/she can terminate a residential lease due to rodent infestation. Read the question and my answer on AVVO.

In a large apartment building, you can be extremely careful and never get rid of vermin. The feeding ground may be somewhere in the building out of your control. Don’t let the landlord blame you the tenant if you know you are not creating the problem. Still, if you wish to terminate the lease, be prepared to fight about it in court if the landlord sues you for back rent. This may involve more than a trip to the Magistrate. The loser has the right to appeal to arbitration and even to court. Whether you wish to undertake this risk may depend upon whether the lease states that you must pay the landlord’s attorney’s fees if you lose.

Good luck!

CLT

Category: Uncategorized

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

1410 Posts and Counting

Categories

Washington County PA Adopts Mortgage Foreclosure Diversion Program

Criminal Law: The Folly of Representing Yourself in Court.

Am I Required to Testify in a Deposition?

Allegheny County Base Year Assessment System Lacks Uniformity.

“Eat Cheese or Die!”: Clever, but Does It Infringe?

Landlord & Tenant: Suing for the Security Deposit.

Commercial Lending: When Can the Bank Accelerate the Balance Due?

Pittsburgh Legal Newslog: Swine Flu and Emergency Powers of the Government.

Mortgage Foreclosure: The MERS factor.

Landlord & Tenant: AVVO Answer on Terminating the Lease Due to Mice.

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