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April 2015 Archives

Massachusetts Guide to Evidence

Massachusetts is one of the few states that has not adopted some version of the Federal Rules of Evidence.  The rules of evidence in Massachusetts are not codified, meaning that evidentiary issues are governed by common law.  In 1982, the Supreme Judicial Court ("SJC") rejected a proposed codification of Massachusetts evidence law, yet encouraged lawyers to cite to the "proposed rules."  Lawyers had to understand case law in order to know the evidentiary rules that apply in Massachusetts, as well as be familiar with the federal rules of evidence and the "proposed rules."  

What Happens When Your Selected Arbitral Forum Is Unavailable?

Arbitration agreements often name a particular arbitral forum to conduct an arbitration, but what if, when a dispute arises, that arbitral forum no longer exists or is otherwise unavailable? In Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1350 (11th Cir. 2014), the Eleventh Circuit held that "the failure of the chosen forum precludes arbitration whenever the choice of forum is an integral part of the agreement to arbitrate, rather than an ancillary logistical concern." This ruling reinforced Eleventh Circuit precedent and reflects the law in the majority of Circuit Courts that have considered the question. 

Determining the Value of Real Property in Divorces

In divorces, determining the value of real property (the marital home, for example) may become a key issue.  While a seemingly simple concept, the term "value" may have several different meanings depending upon the context in which its used in litigation, and understanding the various methods of determining the "value" of real property is crucial.

Using a QDRO to Collect Attorney's Fees

In Silverman v. Spiro, 438 Mass. 725 (2003), the Massachusetts Supreme Judicial Court held that a judge can enter a qualified domestic relations order (QDRO) requiring a party in a domestic relations dispute to pay the other party's attorney's fees and costs (attorney's fees) out of his or her retirement account in the context of a claim for the collection of past due spousal or child support.

Massachusetts Appeals Court Overturns Wind Turbine Zoning Ruling

In Drummey v. Town of Falmouth, the Massachusetts Appeals Court overturned a Superior Court ruling and held that the Town of Falmouth incorrectly failed to obtain a special use permit from the Falmouth zoning board of appeals in order to construct and install a wind turbine on town land.  87 Mass. App. Ct. 127 (2014).

Appeals Court Settles Jurisdiction Question For Large-Scale Development Projects

In February, the Massachusetts Appeals Court clarified that the Land Court and Superior Court have exclusive jurisdiction over appeals of permits granted by cities and towns for large-scale development projects. See Skawski v. Greenfield Investors Property Dev., LLC, No. 13-P-1947 (February 27, 2015). The Court relied on G.L. c. 185, § 3A and its prior decision in Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40 (2012), in rendering its decision. 

Court Dissolves Lis Pendens After Discovering Arbitration Clause

In a recent decision, Bliss Realty Trust v. Roos Company, LLC et al., Civil Action 2014-7562, Superior Court Judge Dennis Curran dissolved a lis pendens he had granted only months earlier after he learned that the party seeking the lis pendens failed to notify the Court that the contract at issue contained a binding arbitration provision.

Massachusetts Supreme Judicial Court Upholds Obsolete Mortgage Statute

The Massachusetts Supreme Judicial Court ("SJC") has held that the provisions of the "Obsolete Mortgage" statute, Mass. Gen. L. c. 260, § 33, as amended in 2006, comport with the Massachusetts and United States Constitutions.  Deutsche Bank National Trust Co. v. Fitchburg Capital, LLC, et al., No. SJC-11756, 2015 WL 1649160 (Mass. Apr. 15, 2015).  Further, the SJC held that for purposes of the statute, a reference to the maturity date of the underlying debt secured by the mortgage is sufficient to state the "term of maturity date of the mortgage," and thereby trigger a loss of enforceability of the mortgage.  Id.

Direct Benefits Estoppel -- Compelling Non-Signatories to Arbitrate

The Seventh Circuit recently ruled that a party was bound to an arbitration award despite not being a signatory to the agreement to arbitrate. The court based its decision on the doctrine of "direct benefits estoppel," ruling that, even though the plaintiff was a non-signatory to the franchise agreement that contained an arbitration clause, she had received a direct benefit from the franchise agreement, and thus was bound under the terms of the arbitration award.

Fifth Circuit Rules Amendment to Electronic Funds Transfer Act Not Retroactive

A three-judge panel of the Fifth Circuit has ruled that a 2012 amendment to the federal Electronic Funds Transfer Act ("EFTA"), which abolished the requirement that operators of automatic teller machines ("ATM") maintain exterior notices of fees, was not retroactive.  Prior to the amendment, the EFTA required fee notices to be located both externally, "in a prominent and conspicuous location on or at the automated teller machine" and also before the close of the customer's ATM transaction, either "on the screen of the automated teller machine, or on a paper notice issued . . . before the consumer is irrevocably committed to completing the transaction."  15 U.S.C. § 1693b(d)(3) (2011). 

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