Identity Theft is a Serious Crime in Pennsylvania

Posted by Cliff Tuttle| July 30, 2008 | © 2026

Posted by Cliff Tuttle

In Pennsylvania, the crime of Identity Theft is defined by statute. “A person commits the offense of identity theft of another person if he possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful purpose.”

Each time the identifying information is used, a separate offense is committed. However, the total values involved in the separate offenses, pursuant to one scheme or course of conduct, may be aggregated in determining the grade of the offense.

The value of the property involved determines the grade of the offense. When the total value is less than $2,000, the offense is a misdemeanor of the first degree. But if the value exceeds $2,000 or is committed in furtherance of a criminal conspiracy, the offense is a felony of the third degree. A third offense, regardless of the amount involved, is a felony of the second degree.

If the offense is committed against a person who is age 60 or older or is a care-dependent person, the grade of the offense is increased one grade.

The document or information need not be stolen. If a drivers licence is lost and then used by one someone who found it, the use is presumed to be without consent, and thus, identity theft.

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 theif 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. Instructions on where to contact the credit reporting agencies can be found here

Real Estate: Ten Good Reasons to Prepare a Deed

Posted by Cliff Tuttle| July 27, 2008 | © 2026

Posted by Cliff Tuttle

Here are ten objectives that can accomplished by preparing, delivering and recording a deed. Of course, consult a lawyer when you do. Deeds can be employed:

1. To change title originally held by unmarried couples after marriage to Tenancy by the Entireties. This means that the husband and wife hold title as a unified entity and the property cannot be treated as the sole property of one or the other. This protects the property from future liens against one spouse.

2. To confirm title acquired by automatic succession. If an owner of a property held by joint tenancy with right of survivorship or by tenancy by the entireties dies, the surviving owner can confirm for the record that he or she is now sole owner of the property.When a tenant in common dies, his or her share passes automatically to his or her heirs at law.

3. To confirm ownership acquired through a decedents estate, where there was no executor’s or administrator’s deed recorded. Title is often passed directly to heirs or devisees under a will through filing of a “Schedule B” with the Recorder of Deeds (now Department of Real Estate in Allegheny County). While this is valid passage of title, the information on this document may be incomplete or even incorrect. A deed of confirmation can be used to clarify information such as the correct name and address of the current owner. Sometimes the tax assessor may continue to carry the name and address of the decedent on the assessment rolls, causing tax bills to be sent to the wrong address.

4. To confirm a change in the property description. This can occur after a new survey or by a re-subdivision.

5. To create ownership by a general partnership. For example, real estate becomes partnership property when conveyed to A and B trading as X, a general partnership.

6. To transfer the land to a trust.

7. To create automatic succession without the necessity of a will, through joint ownership with right of survivorship.

8. To correct an error in a name, a property description or any other detail in a prior recorded deed.

9. To convey a property to a mortgage holder to satisfy the debt. A deed in lieu of foreclosure is sometimes used when the owner has little or no equity in the property and does not wish to oppose the foreclosure.

10. Transfer from a principal to an agent and back again.

CLT

PLBT Guest Post on the AVVO Blog

Posted by Cliff Tuttle| July 24, 2008 | © 2026

Posted by Cliff Tuttle

AVVO is a web site that ranks lawyers based on experience, public recognition and ethics. Although many lawyers reacted negatively to being scored like a hotel or restaurant, most of them got over it. Part of the success of AVVO, as it expands toward the goal of rating lawyers in 50 States, has been its flexibility and innovation. It successfully turned its presentation to the legal profession from stick to carrot and is now perceived by lawyers who have claimed their AVVO page as a marketing tool.

The AVVO blog recently invited guest postings from its rated lawyers, so I wrote one as a means to help introduce Pittsburgh Legal Back Talk to a wider audience.

The guest post is about the lawyer’s need to include non-billable activities into a daily work plan. These are divided into four categories: Finance, Administration, Marketing and Education — F.A.M.E.

At the bottom of the post are links to my AVVO page and a contribution I made to the AVVO Guide concerning what to do when a mortgage foreclosure is imminent. On my AVVO page are links to questions I’ve answered for Avvo readers on a variety of topics.

You can read the Guest post by clicking here.

Divine Intervention

Posted by Cliff Tuttle| July 23, 2008 | © 2026

Posted by Cliff Tuttle

Barach Obama made a secret visit to Pope Benedict XVI during his trip to the Middle East and Europe. When it was time for the Presidential Candidate to return to the plane, the Holy Father called for a limosine. But when the driver saw who the passenger was, he begged the Holy Father for a chance to meet him. Known for his thoughtful kindness, the Holy Father suggested that the driver sit in the back with Obama on the way to the airport while he drove.

The road was clear, so the Holy Father decided to see how fast the limosine would go. Almost immediately, he was pulled over by a highway patrolman. When Pope Benedict rolled down the electric window, the policeman almost had a stroke.

Then the back door opened, and Barach Obama stepped out. “Is something wrong? he asked.

The policeman fell to his knees and when he could not be induced to rise, Obama got back into the limosine and it drove away.

When he had recovered from the shock, the policeman called his wife. “The newspapers were right!” he exclaimed.

(P.S. This is supposed to be a joke, not a news account.)

CLT

Seminar: Defending Mortgage Foreclosure Actions

Posted by Cliff Tuttle| July 22, 2008 | © 2026

Posted by Cliff Tuttle

I will be giving a Continuing Legal Education Seminar titled “Defending Mortgage Foreclosure Actions” at the Community College of Allegheny County North Campus on August 5, 2008 from 6 – 9:15 PM. Pennsylvania attorneys will earn 3 CLE credits and the fee is $99.00.

For information on registration, call Beverly Stellfox at 412-788-7385. The North Campus of CCAC is located at 8701 Perry Highway in McCandless.

The following is a syllabus of the course:

I. OVERVIEW OF THE RESIDENTIAL MORTGAGE FORECLOSURE PROCESS.
a. An Act 6 and 91 primer.
b. Actions on the Note.
c. Bird’s eye view of a typical mortgage foreclosure action and sheriff sale.
d. A few words about bankruptcy.
II. FILING AN ANSWER AND SURVIVING SUMMARY JUDGMENT
a. Why you shouldn’t file an Answer until there is nothing else to do.
b. Is there life after Summary Judgment?
III. PRELIMINARY OBJECTIONS
a. Looking for grounds for Preliminary Objections.
b. The proper plaintiff and missing or defective documentation.
c. Jurisdictional prerequisites.
d. Demanding a more specific pleading.
e. Verification by counsel.
f. The negotiable instrument conundrum.
g. The predatory servicing defense.
IV. RULE TO SHOW CAUSE
a. Enforcing workout agreements and other debtor’s rights.
b. Going outside the mortgage foreclosure box.
V. NEGOTIATIONS
a. Saving for a sunny day.
b. If you feel like you are talking to yourself, you probably are.
c. The winds of change are blowing wild and free.
d. Waiting for the cavalry.
VI. GETTING PAID AND OTHER CLIENT ISSUES
a. Accepting the case and addressing client expectations.
b. Engagement letter and fees.
c. Keeping in touch.
d. Outcomes.

CLT

Should Philadelphia’s Mortgage Foreclosure Conciliation Program be adopted in Pittsburgh?

Posted by Cliff Tuttle| July 21, 2008 | © 2026

Posted by Cliff Tuttle

On July 17, 2008, Philadelphia’s Court of Common Pleas adopted a Joint General Court Regulation to provide for conciliation conferences for owner-occupied residential properties facing sheriff sale.

The first cases to be conciliated will be those scheduled for sheriff sale in August and September. Because it is difficult to identify owner-occupied residential properties with certainty, all of the sheriff sales in August and September are being postponed to November and December unless the plaintiff’s counsel files a certificate stating that the property is not an owner-occupied residence by a fixed deadline. The plaintiff’s attorney must then send a document identified as the “Important Notice” to the Defendant, to give the Defendant an opportunity to file an “Objection.” Cases scheduled for Sheriff Sale in earlier months and not yet sold are eligible for conciliation if the defendant complies with the requirements of the regulation.

Cases where the complaint is filed on or after September 8, 2008 involving owner-occupied residential properties will be given a special designation and the conciliation is scheduled immediately after filing. If an owner-occupied residential property is not so-marked by the plaintiff’s attorney, the defendant can file a written request for a conciliation conference up to 10 days before the sheriff’s sale.

Other cases filed before September 8 will be conciliated if the homeowner files a certification and request for conciliation.

Meanwhile, an organization called Philadelphia Foreclosure Rescue Effort has been recruiting volunteer attorneys to give free representation to homeowners at conciliation conferences. The attorneys are given two and 1/2 hours of free training, with an optional additional hour of mortgage foreclosure defense training.

Will this work? Conciliations do produce settlements — provided that both parties are motivated. In cases where default judgments and writs of execution have been entered, there would seem to be little motivation for the plaintiff to settle. The options left to the defendant are not very many at that point. Moreover, the defendants have often become so delinquent by this time that there is no real prospect of rescue. On the other hand, plaintiffs have begun to worry about the threat of federal and state legislative action. They may not wish to look like they are not negotiating in good faith. Also, the prospect of doubling and tripling the inventory of real estate owned (REO) properties now looks very real.

But conciliations scheduled at the time complaints are filed may be very beneficial to both parties. The defendant may only be 90 – 120 days delinquent. The defendants have been paired up with lawyers who would be quite happy to file a response to the complaint if the negotiations do not pan out. Before then, 95% of them would have permitted default judgment.

Allegheny County is considering its own mortgage foreclosure conciliation program? Would Philadelphia’s be a suitable model?

CLT

The Achilles Heel of Securitized Lenders in Mortgage Foreclosure

Posted by Cliff Tuttle| July 18, 2008 | © 2026

Posted by Cliff Tuttle

The following is a post I made yesterday on a real estate law listserv known as DIRT regarding why foreclosures of securitized mortgages have had so much trouble addressing questions which never arose in the days when most home mortgages were issued by community banks and thrifts.
___________________________________________________________

I would like to suggest an explanation for the conduct of plaintiffs in these cases and why trial counsel is unable to satisfy the demands by courts for evidence of assignment of the mortgage and note. Such simple ministerial acts, often made necessary by orders of court for their foreclosures to proceed to sale, seem to be beyond the capabilities of the largest banking institutions in the United States.

After struggling with a number of these cases, I am convinced that most of the plaintiff’s attorneys may have never communicated with their nominal plaintiffs, the trustees under pooling agreements, and possibly wouldn’t even know how to contact them. These cases are assigned to regional law firms that handle them in volume through a clearing house, usually at the same time that the servicer relinquishes the account to the pool trustee. I have had several clients who have participated in work-outs, only to have the case put into foreclosure after two or three payments. The servicers refuse to discuss the reasons why this happens. I think that the trustee (who knows and cares nothing about the workout) orders the case into foreclosure based on triggers installed in their payment monitoring systems and the servicers comply by immediately shutting down the case. From the trustee’s point of view, this is simply an entry on an electronic account ledger. The servicer, who has relinquished control of the account, is no longer being paid to administer the account and the trustee doesn’t want to be bothered.

The trustee has no mortgage file. All it knows or cares to know is whether the payments on the loan are current or in default. It doesn’t wish to get into the details necessary to verify complaints. It doesn’t want to take the responsibility for signing affidavits. It is in the securities business, not the lending business. If trial counsel can’t take care of these matters, the trustee will instruct the clearing house to find somebody else in the future who will.

Then, after the foreclosure is derailed through preliminary objections, plaintiff’s trial counsel can’t seem to arrange a settlement conference. Eventually, another complaint is filed and the cycle begins again.

In Allegheny County, Pennsylvania, the Sheriff is trying to have local rules adopted that would require a settlement conference at the beginning of a mortgage foreclosure. This is because borrowers and counsel report that they cannot find anyone willing to talk about a work-out. It seems to me an idea whose time has come.

CLT

A matter of perspective

Posted by Cliff Tuttle| July 14, 2008 | © 2026

Posted by Cliff Tuttle

The FDIC took over IndyMac Bank in California on Friday afternoon and reopened its doors as IndyMac Federal this morning. It was the second or third largest bank failure in history, depending on whose press releases you read. It was the fifth federal take over this year and an FDIC official told NPR over the weekend that there will be others. In this era of deposit insurance, runs on insured institutions make no sense, since deposit funds are protected to the insurance limits and are available to depositors again very quickly.

The Office of Thrift Supervision (OTS) and Senator Charles Schumer of New York traded accusations over who caused the run on IndyMac. OTS blamed Schumer’s public remarks that IndyMac was perilously close to failure. Schumer replied that OTS had mismanaged the regulation of IndyMac, creating the situation.

Of course, they are both right and both wrong. Considering the timing and content of of Schumer’s remarks, wasn’t the run on IndyMac just as forseeable as IndyMac’s ultimate demise? On the other hand, how long could IndyMac have stood until the next ill wind blew it over? Whether we blame Schumer or OTS is a matter of perspective.

It is the mission of OTS and other banking regulators to promote safety and soundness in the financial institutions that they oversee, but regulation has its limits. Home mortgages, properly underwritten, have long been considered among the safest of investments in a world where risk is always present. The state of the residential mortgage market, which IndyMac was a major force in creating, is without precedent. Because OTS examination reports are secret, and rightly so, we the public may not be able to determine when the OTS became concerned about IndyMac’s lending practices and whether its response was appropriate. There are limits to regulation and the OTS was not the board of directors of IndyMac. In any case, it is doubtful that the OTS and its sister federal agencies could have headed off the current home lending crisis. The powers behind that movement were under-regulated mortgage brokers and mortgage bankers who would have effectively put the heavily-regulated state and federal depository institutions out of the mortgage business if they had not found ways to get into the game while regulators watched from the sidelines. Many of these under-regulated newcomers are gone now, leaving the rest of us to clean up.

The all-but-certain assortment of federal bail-outs will bring about another era of heavy regulation, the cost of which will fall upon survivor institutions who mostly didn’t create the problem. Home buyers will also pay a price. It will be harder, for many impossible, to qualify for a home loan. It will be a better environment in one sense and a worse one in another. It is a matter of perspective.

How will all of this affect Pittsburgh? We didn’t have the bubble and the bust. For that we can be thankful. But we are a national banking center. As a region, we aren’t safe but appear to be safer than many others.

CLT

Scavenger Collectors are on the Prowl

Posted by Cliff Tuttle| July 14, 2008 | © 2026

Posted by Cliff Tuttle

It has become a common practice for credit card issuers to sell their written-off accounts in bulk at auction. However, other kinds of consumer accounts, such as automobile loans and unpaid balances on cellular telephone are also sold in this way. Long lists of delinquent accounts are assigned and frequently re-assigned. Although the gross amount of the bid for a package of written-off accounts may be millions of dollars, this typically represents pennies on the dollar. An individual account may be repackaged and sold two or three times. The buyers of these accounts, called “scavenger collectors”, know that most are uncollectable, but they expect to recover enough by vigorous collection efforts or in court to make the enterprise very profitable.

If you are contacted by someone attempting to collect such a debt, there are a few things that you, the consumer, need to know. First, the caller may not actually represent the legal owner of the claim against you. (For example, it may have already been re-sold to someone else.) Second, the claim may not be enforceable in court. Third, the caller may not know very much about the claim and may be eager for you to provide information.

Refuse to give or confirm any information to the caller. Don’t admit that you owe the debt. And by all means, don’t agree to make a “good faith payment”, even for a nominal amount. Instead, get the exact name and address of the entity making the claim.

If a scavenger collector sues you in court, call an attorney immediately. The chances are very good that the claimant cannot prove its case. They typically have only basic information concerning the debt and no supporting documents. As a practical matter, they usually can’t prove the case. They may even know that the statute of limitations (generally 4 years following the last payment in such a case) has expired. There may be other complete or partial defenses.

Bear in mind, that even if you do owe an unpaid debt, the calculation of the actual amount currently due may be incorrect. The plaintiff has the obligation to present sufficient evidence to prove that the balance is stated correctly. This is no small feat, since the balance was recalculated every month, taking into account payments and the accrual of interest, late charges and other fees. Interst rates and other fees often change from month to month. As a practical matter, if the defendant demands strict proof of the calculation of the account balance, the plaintiff must produce monthly statements of the account since the time when there was a zero balance.

CLT

Welcome To Pittsburgh Legal Back-Talk! (First Post on July 7, 2008)

Posted by Cliff Tuttle| July 7, 2008 | © 2026

Posted by Cliff Tuttle

On July 1, 1999, Overlawyered.com, believed by many to be the very first legal blog, published its initial post. According to its editor, that was about two months before the first known use of the word “blog” on the internet. Overlawyered.com was (and still is) dedicated to the proposition that lawyers cause endless trouble in the world. If you hate lawyers, you’ll love this blog. To see what Overlawyered.com is up to as it begins its ninth year, click here.

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.

Subscribe to our feed