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October 2013 Archives

Parenting Coaches

When parents of minor children separate, and have to establish appropriate parenting plans and make joint legal custodial decisions that are in their children's best interests, it is helpful to engage the services of mental health professionals, who can serve as parenting coaches.  Parenting coaches can be engaged prior to, during, or after separation and divorce.  Clients who have engaged parenting coaches often have a much easier time navigating through difficult child-related issues that come up in the context of separation and divorce.

The Arctic 30: Does Arbitration Have The Power To Free Them?

An international crisis appears to lurching towards a resolution, as the Russian government has dropped piracy charges against 30 Greenpeace activists it arrested last month in the Arctic Circle. Instead, Russia will charge the protestors with "hooliganism," which is punished with a maximum of 15 days in jail, in contrast to piracy's 15-year sentence.

New Child Support Guidelines

Following what is described as a comprehensive review of the Massachusetts Child Support Guidelines Task Force, the Chief Justice of Massachusetts Trial Court released new Child Support Guidelines that became effective on August 1, 2013.  In the Trial Court's June 20, 2013 Press Release, it is noted that these revised Guidelines, which supersede any previous Guidelines, are intended to take into consideration current economic realities facing families in Massachusetts.  

Why Hire an Appellate Attorney?

Why should you hire an appellate attorney?  You may be happy with your trial counsel, having already worked and developed a good relationship with your trial counsel for months or perhaps years.  Plus, your trial counsel already knows the facts of your case.  There are, however, specific advantages to hiring appellate counsel.  

Misuse of Escrowed Funds Lands Contractor in Prison

In an apparent case of first impression, the Massachusetts Appeals Court has ruled that a building contractor who misuses his customers' escrowed funds incurs not only civil liability for breach of contract and the like, but also criminal liability for "fiduciary embezzlement" (M.G.L. c. 266, ยง 57).  In Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, decided October 21, 2013, the defendant contractor executed purchase and sale agreements with a series of customers that required the customers to pay deposits, and required the contractor to hold those deposits in escrow.  The defendant contractor acted as his own escrow agent.  However, instead of placing the escrowed deposits into a separate, interest-bearing bank account, the defendant deposited them into his general business operating accounts.  Worse, the defendant then used the money--before it had been earned--to pay himself and to pay various business expenses.  The defendant never built the houses he was hired to build, and he never returned the escrowed deposits to his customers.

Modifying Alimony Orders of Other States

With the enactment of the Alimony Reform Act of 2011, almost every former spouse with an alimony order has questioned whether he or she may be subject to the relief from, or the loss of, support payments under the new law.  While the provisions of the Act clearly apply to parties who were divorced in Massachusetts and continue to reside here, former spouses who were divorced in another state, but have since moved to Massachusetts, are also wondering about the impact of Massachusetts alimony reform.  

Claims Against Failed Institutions Must Comply with Claims-Processing Regime Set Forth in FIRREA

The U.S. Court of Appeals for the First Circuit recently confirmed that the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) provides a firm jurisdictional bar to consumer protection claims based on loans made by failed institutions but now held by successor banks following a transfer facilitated by the Federal Deposit Insurance Corporation (FDIC) unless the claimants have complied with a strict administrative regime.  In Demelo v. U.S. Bank National Association, 727 F.3d 117 (1st Cir. 2013), in which Stephen Reilly and Jennifer Greaney of Fitch Law Partners LLP represented the defendant U.S. Bank National Association (U.S. Bank), the First Circuit held that claimants against a failed institution must comply with the claims-processing regime prescribed by FIRREA.

Appraisers Have Final Say on Lease Extension Rent

A panel of the Massachusetts Appeals Court recently grappled with the reviewability of rent-setting calculations performed by professional appraisers pursuant to a commercial lease, and determined that even mistaken appraisers will have the last word so long as they apply any criteria or formula set forth in the lease, and do not exceed the authority the parties have granted them.

Compelling Arbitration in Massachusetts

Like other states, Massachusetts has enacted an arbitration statute that provides a streamlined procedure for compelling a party to arbitrate.  Section 1 of the Massachusetts Uniform Arbitration Act, G.L. c. 251, recognizes two types of arbitration agreements: (i) those requiring parties to a contract to submit any dispute arising between them to arbitration, and (ii) those requiring parties to submit an existing dispute to arbitration.  If a party reneges on either type of agreement, the aggrieved party can file an application in the Massachusetts Superior Courts to compel arbitration.  Such applications are heard as motions and typically must be served on the non-arbitrating party in the manner required for original writs of summons, though the parties can agree, and often do agree, on another procedure for service.

Preparing for a Successful Mediation

How should counsel and parties prepare for the mediation of a business litigation case?  For counsel, the process of mediation requires an entirely different mindset and style than he or she is accustomed to in court proceedings.  In fact, a common mistake that inexperienced practitioners make is to prepare for mediation as though it were an adversarial court proceeding.  Counsel should resist those natural impulses and instead focus on what the client needs to make the most of the opportunity presented at the mediation - that is, to get a good settlement. 

Try Title Action May Be Available Against Mortgagees, Or Not

A decision from the Land Court has muddied the waters regarding whether a mortgagor can raise a claim under the Massachusetts try title statute against a mortgagee.  A 2012 Land Court decision by Judge Robert B. Foster found that the try title statute was unavailable to a mortgagor prior to foreclosure.  In Abate v. Fremont Investment & Loan, et al., Judge Foster found that until foreclosure, during which the mortgagor's equitable title is extinguished, the mortgagor and mortgagee hold complementary equitable and legal title to the property, and have no adverse claims.  The First Circuit reached a similar decision in July in Lemelson, et al. v. U.S. National Bank Association.

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