Overcoming Overwhelming Odds: A Case in Point.

Posted by Cliff Tuttle| December 13, 2011 | © 2025

No. 770

When it happens in New York it makes national news.  When much the same thing happened in Pittsburgh some years ago, it made local news. Yet something even more remarkable happened after the Pittsburgh event that didn’t make the news at all, a story worth telling.

One afternoon, I was asked to help out a resident of the County Jail who had had a string of convictions for relatively minor offenses.  I don’t even remember what they were  or how he happened to accumulate  three detainers from three different judges for parole violations.  But he had spent months awaiting trial and couldn’t get bail unless the three judges who had revoked his parole on  prior convictions agreed. The odds were overwhelming, but nothing was going to happen unless I tried. So we started the rounds from one courtroom to the next.

After considerable effort, I obtained orders from the PJ at a bail hearing and two other judges, all contingent upon the others being in agreement.  The third, Judge Albert Fiok, was a little more difficult to persuade.  He was cool and silent.  But after an impassioned argument, I almost had him convinced.

Then he asked the question that I feared the most: “If I let you out” he was now speaking directly to my client, “do you have a job waiting for you?”

I feared the question because I thought I knew the answer.  As it turned out, I only knew half of it.

My client had torn out the lead article from the morning paper and folded it into a tiny square, hiding it in the seam of his prison uniform. The suspense grew as he unfolded the front-page photo of a window-washer’s scaffold dangling 20 stories high at the then-new Oxford Center. That poor soul was not as lucky as the New Yorker. He plunged to an instantaneous death.

My client proudly held up the article while he told the judge, in a most serious tone of voice, that he was a professional window washer! He didn’t have a job at the moment, but he “knew of an opening.”

The expression, “bringing down the house” is all about moments like this. The packed courtroom exploded.  Gallows humor at its finest! It took a minute for the loud laughter to subside.  But well before then, the order had been signed.

CLT

Who Am I?

Posted by Cliff Tuttle| December 7, 2011 | © 2025

No. 769

We have all spent a lifetime with ourselves. But do we really know the answer to the big question, “Who am I?”

The answer resides in your mind.  If you are good at socializing with people you just met but not so good at solving technical problems while working alone, you might think that those observations say something about who you are.  Perhaps. But do they really?  You may never have developed your innate talent for problem solving, for lack of a good, let alone great, teacher.  You may never have wanted something enough to give the level of effort required to do great things.  So who is to say what you might have done with the proper foundation?

I have been slowly working my way through Walter Isaacson’s Steve Jobs since the day it was released.  It constantly amazes me how this incredibly strange person, with so many apparent negatives, managed to be the person to, in his words, “put a dent in the universe.”  Of course, he couldn’t have done any of it alone.  Without Steve Wozniak, Bill Atkinson and a host of others, and without the extraordinary confluence of events in the 1970’s, Steve Jobs might have lived and died unknown, unfulfilled and unrecognized.

Not that Jobs had any special insight at the time, not until much later.  He just went about being quirky, annoying Steve Jobs and somehow it all turned out exactly right.

Perhaps one in a billion of us can stumble into great achievement by luck.  The rest of us will have to use our prefrontal cortex and figure it all out.  That is, figure out what kind of quirky character each of us must be and what product of that quirky character just might turn out be “insanely great.” Figure that one out, and you might just make your own dent in the universe.

CLT

Pelosi Ethics

Posted by Cliff Tuttle| December 6, 2011 | © 2025

No. 768

So, according to news reports, former Speaker Pelosi threatened to reveal 1,000 pages of records from the House EthicsCommittee when it investigated Newt Gingrich.

Dumb, dumb , dumb!  Its just like the who-dun-it character who, in Chapter One, threatens to kill the poor bastard who is eventually murdered in Chapter Two or Three. When the material eventually leaks, who do you think they will blame?

Bad, bad, bad!  Its unethical to reveal the proceedings of the Ethics Committee — it might even be a crime.

Just sayin’.

CLT

Commonwealth Court: variance under Hertzberg still requires hardship of the property, not the person.

Posted by Cliff Tuttle| December 6, 2011 | © 2025

No. 767

The standards for granting a variance are quite strict, but many continue to think that the relaxation of the rules for a dimensional variance under Hertzberg v. Zoning Board of Adjustment, 554 Pa. 249, 721 A.2d 43 (1998), gives them more than the Commonwealth Court will allow.

In Singer and Piper v. Philadelphia Board of Adjustment, the Court addresses the issue of what constitutes such an unnecessary hardship that will permit a dimensional variance under Hertzberg. The Court stated:

“Here, Appellant did not present evidence or testimony demonstrating that the allegedly unique physical characteristics of the property limit applicant’s ability to develop the property in conformity with the ordinance. Rather, Applicant asserts that the property cannot be developed as proposed, in a manner that will maximize the developmental potential of the property, without the dimensional variances it seeks.”

CLT

GMAC Pulls out of Massachusetts

Posted by Cliff Tuttle| December 5, 2011 | © 2025

No. 766

In response to the suit by the Attorney General of Massachusetts, GMAC announced that it is terminating its home loan programs in that state.  Attorney General Coakley says this constitutes an admission of non-compliance.

See the story below at No. 765.

CLT

More on the Massachusetts AG’s Suit Against Lenders

Posted by Cliff Tuttle| December 5, 2011 | © 2025

No. 765

As noted last week, the Attorney General of Massachusetts, Martha Coakley, filed suit against the five largest home mortgage lenders in the United States and certain of their affiliate corporations, and Mortgage Electronic Registration System, Inc. and its parent, Merscorp, Inc. Massachusetts is the first to break ranks with the Attorney Generals of the 49 other states who were attempting to negotiate a joint settlement over mortgage foreclosure irregularities. The other Defendants are Bank of America, N.A., BAC Home Loan Servicing, BAC GP, LLC, JPMorgan Chase Bank, N. A., Citibank, N.A., Citimortgage, Inc., GMAC Mortgage, LLC and Wells Fargo Bank, N.A..

Coakley announced that she was unwilling to accept the bargaining position taken by the lenders and decided to air her grievances in Court.

The fifty-nine page Complaint asserted that the Defendants engaged in unfair and deceptive foreclosure practices.  It states that Massachusetts is a non-judicial foreclosure state, which means that the mortgagee can sell the property without enlisting the aid of a court, provided it follows the statutory requirements exactly.

The Complaint alleges that all of the Defendants frequently foreclosed upon residential properties without strictly following the statutory requirements.  In particular, the complaints and other documents were often filed before the mortgages were assigned to the plaintiffs.

NOTE:  In Pennsylvania we have a judicial foreclosure system.  Our Superior Court has held that a complaint may be filed before an assignment is filed so long as the plaintiff includes a sufficient explanation in the complaint that the defendant is informed that an assignment will be filed.

The Complaint alleges that a large number of the notarized affidavits filed of record contained false information given under oath.

The Complaint also alleges that there was widespread deception of borrowers concerning the terms of proposed mortgage modifications.

In addition, the Complaint alleges that the Banks and MERS failed to comply with the Massachusetts land registry system.  MERS is a private electronic registration database established by its members ( including the defendants and others) which is intended to avoid the necessity of recording assignments of mortgages. MERS is named as mortgagee of record, but is not the owner of the loan, only the owner’s nominee.

The Complaint states that, while not all properties are entered into the Massachusetts land registration system, the defendants are required to comply with the registration system with regard to the properties in the system.  By transferring mortgages on the MERS system, while not filing the proper documents in Massachusetts, the defendants violated the law.

NOTE: Although Allegheny County has a Deed Registry office, it only keeps track of the transfer of title to land, not mortgages.Thus, there is no equivalent violation of the law in Pennsylvania for failing to register mortgage transfers.

The Complaint also alleges deceptive mortgage servicing practices, such as giving wrong information to borrowers concerning eligibility for mortgage modification.

The Massachusetts litigation may open the door to similar litigation elsewhere.  Discovery may turn up evidence of fraudulent practices that have not been alleged because the evidence is hidden in files that have never been reviewed. However, it will have little direct impact on legal developments in Pennsylvania.

CLT

Massachusetts Sues Lenders Over Foreclosure Procedures.

Posted by Cliff Tuttle| December 1, 2011 | © 2025

No. 764

Massachusetts Attorney General Martha Coakley filed suit against five large residential mortgage lenders for abusive mortgage foreclosure practices, ending lengthy negotiations on the subject. The lenders are Bank of America, J P Morgan Chase, Wells Fargo, Citibank and GMAC, together with MERS. MERS is a “nominee” of lenders who becomes the record mortgagee in order to enable the mortgage to be assigned multiple times on the MERS records without the need of recording assignments.

The suit alleges false and deceptive practices, in violation of Massachusetts Law, such as false documentation, robosigning and deceptive modification practices. More on this over the weekend.

CLT

Seminar on Preliminary Objections.

Posted by Cliff Tuttle| December 1, 2011 | © 2025

No. 763

My colleagues at Third Chair:Pittsburgh perform a number of free services for the bar, including publicizing cheap Continuing Legal Education.  If I had been smart, I would have told them (and you) a long time ago that I am giving a 3 hour CLE seminar at the Community College of Allegheny County Downtown Center tomorrow, December 2, 2011 at 1:00 PM.  The topic is Preliminary Objections.

The Downtown Center is located at 625 Stanwix Street, next to 2 Gateway Center, across from Max and Irma’s.  The Seminar will be held in Room 1123.  This building includes a multi-story parking garage, so you could park there, run across to M&E’s for lunch and be in your seat by 1PM.

The last time I checked, the CCAC seminars still cost $99.00, which even Third Chair:Pittsburgh would call pretty good for three hours, including an hour of Ethics.  You can walk-in and pay at the door. However, if you want to check on anything I’ve said here, call the CCAC Seminar coordinator at 412-788-7385 or send an email to bstellfox(A)ccac.edu. [Note: I’ve been told by my techies to never post an email address with an @ in it, since robots crawl the web looking for them.  However, you humans can figure it out.]

However, if this notice too short, be advised that I will be giving the Preliminary Objections Seminar next year at each of the four suburban campuses, spread over the three CLE periods.

CLT

An Interesting Exchange over Judgment and Execution.

Posted by Cliff Tuttle| November 27, 2011 | © 2025

No. 762

Can a writ of execution be issued the same day a judgment is awarded or must you give notice? Asked 2 days ago – Sarver, PA Practice area: Debt Collection – Edit Had someone file at court records department for a judgment and at the same time file with sheriff’s office for a writ of execution. No notification was given to me about costs. Judgment was paid long ago, but plaintiff now wants filing fees so they made the court award into a judgment and IMMEDIATELY filed a writ of execution. Don’t they have to give notice that money is owed???? Isn’t this part of due process? Attorney answers (3) Gary D. Bollinger  Answered 2 days ago. This attorney is licensed in Missouri. I recently asked this question of a debt collection attorney in the state of Missouri at the Missouri bar fall committee meetings for commercial law; much to my surprise, he advised me that the practice allows the garnishment to be filed even before the case is not yet a final judgment. However the actual process of the paperwork typically takes 3 to 4 weeks, and usually occurs after the judgment has become final. If an early garnishment occurs, the process to attack it would be by a motion to quash garnishment. Mark as good answer Clicking the mark as good answer button helps us highlight the best answers. 1 person likes this answer 3 comments Clifford L. Tuttle Jr. Posted 1 day ago. This attorney is licensed in Pennsylvania. This is a Pennsylvania Civil Procedure matter. Missouri law is irrelevant. Gary D. Bollinger Posted about 22 hours ago. This attorney is licensed in Missouri. Of course Missouri procedural law is not the governing authority for a PA court matter. Nevertheless, my experience is that procedural process in the various states often have similarities that may assist the inquirant in understanding the process of law–an understanding that allows inquirant to be better informed when considering his/her options. You are fortunate that the responses of “a lawyer from Missouri and one from Alabama” have prompted the definitive response from  atty Cliffird  L. Tuttle, Jr. on the procedural  issue of  “default judgments” –a phrase you never mentioned in your original inquiry, but perhaps irrelevant to PA law, where distinguishing a default Jmt from one obtained after the issues have been joined may  bear  no relevance. But what do I or Atty Shepard of AL know: we are, after all, “irrelevant [whose] answers should not have been given”. There is a lesson here: always trust a lawyer whose Avvo image shows him dressed in a dinosaur suit with a briefcase shaking hands with a a human in a suit… Really, how can you possibly go wrong with such 65 million year old gravitas? Clifford L. Tuttle Jr. Posted about 20 hours ago. This attorney is licensed in Pennsylvania. The inquirer had a judgment followed quickly by a writ of execution. He says that he had paid the debt. He wants to know what to do. Although he does not say that there was a default judgment taken, chances are pretty good, given the facts stated, that this is the situation, not one in which judgment is taken “after the issues are joined.” If the inquirer had filed an answer, he most likely would have defended on the grounds that the debt had been paid and the case would be going to trial. If so, the judgment can be opened, as a matter of course, under the Rules of Civil Procedure within ten days. There is more to the story, of course, but the inquirer needs to have a conversation with a Pennsylvania lawyer and needs to do it quick. As a matter of fact, we have nothing in Pennsylvania like garnishment in advance of judgment. I’ll stand by my irrelevant comment. However, I don’t wish to make a personal attack on any lawyer anywhere. To the extent you took it that way, I apologize. Once this dialogue is complete, I’ll post it on my blog. Tazewell T Shepard III Answered 2 days ago. This attorney is licensed in Alabama. In many states, a plaintiff does not have to wait for a judgment to become final before he starts the collection process. When doing so, the plaintiff takes the risk that he may spend time and expense pursing a judgment that could be appealled and reversed. Nevertheless, the more aggressive plaintiff often move forward immediately.As for your liability for court costs, go back and look at the judgment. It probably did give you “notice” of your liability if it contained language like “costs taxed to the defendant”. This is the typical way in which a party becomes liable for the opposing party’s costs. Legal disclaimer: These comments are provided for informational purposes only and should not be construed as legal advice on any subject matter. No… more Mark as good answer 1 comment Clifford L. Tuttle Jr.  Answered 1 day ago. This attorney is licensed in Pennsylvania. Unfortunately, a lawyer from Missouri and one from Alabama. However you are in Pennsylvania and these two answers should not have been given because the Pennsylvania Rules of Civil Procedure govern the answer.The answer depends upon the circumstances of the judgment. In the case of a default judgment, a writ of execution can be issued the same day because there is no appeal. However, you are able to open a default judgment within ten days, provided you have a valid defense — which it appears you do. You should not be doing this yourself. Speak to a lawyer immediately. Clifford L. Tuttle, Jr Attorney at Law Pittsburgh, PA

Don’t Post Anything on Facebook that You Wouldn’t Want To See as Exhibit A In Court.

Posted by Cliff Tuttle| November 23, 2011 | © 2025

No. 761

This post was quoted in the Cutting Edge  column by Greg Victor in the Sunday, November 27, Pittsburgh Post Gazette. Cutting Edge reviews what is being said in blogs, especially local ones.  We were in good company, right after Virginia Montanez, the infamous Pittgirl, by far the most popular blogger in Pittsburgh. Thanks for the shout out, Greg.

Bloggers say this all of the time.  Plenty of people don’t listen.  Here’s a Pennsylvania Common Pleas case that illustrates what can happen.  The judge ordered discovery of the entries on the Facebook page of a plaintiff in an auto accident.  It included entries about a supposedly seriously injured person going to the gym, etc.  The Court stated that no court has ever held that there is an expectation of privacy on Facebook.  On the contrary, the court noted, Facebook is for sharing.

Solution, don’t open a Facebook account.  Don’t put personal information on the internet.

CLT

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.

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