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January 2014 Archives

Limited Issues Settlement Conferences

Settlement conferences in pending divorce and family law cases often result in the parties entering full and final settlement agreements.  The parties in such a case appear at an uncontested hearing when they ask the Judge to approve and incorporate their signed agreement into the court's judgment.  This settlement procedure takes place in lieu of the parties taking their contested issues to trial, after which the Judge enters a final judgment on behalf of the parties, which is a final resolution of the case not based on an agreement between the parties, but on the Judge's findings of fact and his or her application of the law to such facts, which must be presented to the Judge in accordance with applicable rules of evidence at trial.  Trying a case can indeed be a very expensive and time-consuming process. 

Parental Kidnapping

We live in an increasingly mobile society, and many parents today are raising their children in a different city, state or country from where one or both of the parties grew up.  When a marriage breaks down and divorce is imminent, there is sometimes concern that the other parent may leave the state or even the country with the child.

Seventh Circuit Dismisses Allegations of Fraudulent Force-Placed Insurance

The Seventh Circuit Court of Appeals recently dismissed a borrower's putative class action lawsuit under the Illinois Consumer Fraud and Deceptive Business Practices Act, alleging that a lender and insurer fraudulently insured the borrower's property after the borrower's homeowner's policy expired.  In Cohen v. American Security Insurance Co., 735 F.3d 601 (7th Cir. 2013), the homeowner held a secured loan with Wachovia Mortgage, FSB, which required her to maintain homeowner's insurance on the residence as a condition of her loan agreement.  When the homeowner's policy lapsed, Wachovia purchased replacement coverage at a rate more than twice as expensive as she had previously paid.  Id. at 603.  Wachovia charged the homeowner for the cost of the replacement coverage.  Id.  The coverage procured by Wachovia also included a commission to Wachovia's insurance agent affiliate, a feature allowed under the loan agreement.  Id.

Modifying Child Support by Joint Petition

Massachusetts Courts allow for the filing of a Joint Petition For Modification Of Child Support Judgment, when both parents agree that an adjustment to an existing child support judgment is warranted.  Recent amendments to the Massachusetts Child Support Guidelines provide that a child support judgment may be modified when "there is an inconsistency between the amount of the existing order and the amount that would result from the application of the Child Support Guidelines."  Modifying child support by joint petition may streamline uncontested support modification actions, as the Court may address such matters administratively and without the need for a hearing. 

As a Trustee or Personal Representative, How Do I Resign From My Fiduciary Appointment?

With the recent enactment of the Massachusetts Uniform Trust Code and the Massachusetts Uniform Probate Code, there are procedural changes governing how an appointed fiduciary voluntarily resigns.

Drawing the Line: The Dispute Between China and the Philippines Over Territoriality

Lost in the hype surrounding the Senkako-Diayou dispute between China and Japan over territoriality is another similar conflict that also involves China. For the last few years, China and the Philippines have been contesting a 2,000 mile stretch of sea that not only includes enormous deposits of oil and gas, but also serves as one of the world's primary shipping lanes.

First Circuit Finds No Private Right of Action Under HAMP

The First Circuit has affirmed a holding finding that no private right of action exists for homeowner-borrowers under the Home Affordable Modification Program ("HAMP"), bringing clarity on this issue to courts within the Circuit.  In the underlying mater, Mackenzie v. Flagstar Bank, FSB, 2013 WL 139738 (D. Mass. Jan. 9, 2013) aff'd, 2013 WL 6840611 (1st Cir. Dec. 30, 2013), Magistrate Judge Bowler of the United States District Court had held a borrower is not an intended third-party beneficiary of the Servicer Participation Agreement ("SPA") among the banks and the federal government relating to HAMP.  The District Court further held that absent an independent duty to modify the mortgage, neither the existence of a mortgagor-mortgagee relationship nor HAMP itself created any duty enforceable by the borrower.

Optional Appellate Arbitration Rules

The American Arbitration Association recently released Optional Appellate Arbitration Rules, which aim to provide parties with an opportunity to have appeals of an arbitral award heard within the arbitration process itself.  Typically, applications to vacate arbitral awards are heard in courts, and the grounds for vacatur are quite limited pursuant to federal and state arbitration statutes. 

Washington and Colorado State Banking Associations Request Federal Guidance Regarding Banking Activities with Marijuana Producers

In the fall of 2012, voters in both Colorado and Washington introduced a new era in the United States when they voted to legalize the sale of marijuana.  In response to the landmark referenda, the Department of Justice issued a revised "Guidance Regarding Marijuana Enforcement" on August 29, 2013.  The DOJ Guidance noted that the federal Controlled Substances Act includes several important priorities with respect to marijuana, including preventing access of minors to marijuana, preventing revenue from the sale of marijuana going to criminal enterprises, preventing violence, and preventing drugged driving.  While the DOJ Guidance states that state and local law enforcement in jurisdictions that have legalized marijuana in some form should remain the "primary means" of addressing marijuana-related activity, the DOJ warns that the federal government may continue to "bring individual enforcement actions, including criminal prosecutions," focused on that activity.

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