Friday, November 21, 2014

Dismissal of Case for Failure to Prosecute in New York



On the Court's own initiative, pursuant to CPLR 3216, it is ORDERED that the complaint is dismissed, for failure to prosecute, without costs or disbursements.

The Court notes that this matter was before the Court for a Compliance Conference June 19, 2014. At that time, the plaintiff failed to appear. Thereupon, the plaintiff was served with a 90-day Notice pursuant to CPLR 3216, demanding that the plaintiff file a note of issue within 90 days of receipt. More than 90 days have elapsed, and the records of the Court indicate that no note of issue has been filed to date, and that no motion has been made to extend the time to file the note of issue.

Filed: October 27, 2014

Monday, November 17, 2014

Denial of Motion to Restore Case to Calendar in New York



The following papers numbered 1 to 7 read on this motion to vacate the dismissal and restore this case to the calendar.

Notice of Motion - Affidavits - Exhibits - Service 1-4
Answering Affidavits - Exhibits - Service 5-7
Replying Affidavits - Exhibits - Service

Upon the foregoing papers it is ORDERED that this motion by plaintiff to restore the within action to the calendar and to schedule a Compliance Conference is denied.

Plaintiff failed to appear at the Preliminary Conference originally scheduled for November 11, 2013, and rescheduled for December 2, 2013. Furthermore, plaintiff failed to appear at the Compliance Conference which was held on March 11, 2014.

Thereafter, the Court served plaintiff with a 90-day Notice pursuant to CPLR 3216, and the defendant also served plaintiff with a copy of said Notice and Compliance Conference Order on March 12, 2014.

When plaintiff failed to comply with said 90-day Notice, the Court dismissed the within action on August 6,2014.

In this motion, plaintiff purports to excuse her failure to file a Note of Issue, alleging that as a "pro se", she "did not know the importance of failing to file a Notice of Issue," and "believed that the Court would schedule another conference."

In effect, plaintiff is seeking to vacate the Court's dismissal order of August6,2014. It is well settled that "to vacate the dismissal of the action pursuant to CPLR 3216, the plaintiff was required to demonstrate a reasonable excuse for [her] defaults and a meritorious cause of action." (Bowman v. Kusnick, 35 AD3rd 643; 644; also see Parkin v.Ederer, 27 AD3rd 633; and Bettv v. Citv of New York, 12 AD3rd 472, 473)

Plaintiff has failed to demonstrate a reasonable excuse for her defaults. No excuse whatsoever has been given by plaintiff for her failure to appear at a Court ordered Preliminary Conference, Compliance Conference, besides her failure to file a Note of Issue. It further appears that plaintiff has not responded in any fashion to defendant's discovery demands, set forth in the aforementioned orders.

Finally, plaintiff has also set forth a meritorious cause of action.

In the absence of a satisfactory showing either of reasonable excuse or of merit, the motion must be denied.

Dated: November 3, 2014

Wednesday, November 12, 2014

A Billion Dollar Divorce

It is not often that we get to see inside the details of a high net worth divorce, let alone a divorce that results in one spouse paying the other $1 Billion. This week, the New York Times (and other papers) got a hold of the Findings of Fact and Conclusions of Law from the Oklahoma County District Court in the case of Sue Ann Hamm and Harold Hamm.

The document is astounding in the amount of detail required to recount the assets of the parties and the evidence submitted in what was an enormous trial conducted outside of the usual scrutiny of a high profile divorce.

The focus of the findings is on the standards in Oklahoma relative to marital and separate property.  In Oklahoma, property acquired during a marriage is presumed to be marital, including when separate property is placed into the joint ownership of the properties or is commingled with marital property.  Even the increase in value of separate property during a marriage may be considered marital depending upon the cause of the increase in value.

Although not a state where I am licensed, Oklahoma’s laws and decisions seem to be consistent with the states where I practice. It is a long read, but for those who like to  study these kinds of decisions, the Court has given us plenty to ponder.

A full copy of the Findings of Fact and Conclusions of Law can be found here.

Friday, November 7, 2014

The Importance of Debt Validation

It has been quite a week, with the mid-term elections finally concluded (we can all go back to regular commercials, at least for a week or two) and the news yesterday that the Sixth Circuit Court of Appealsupheld gay marriage bans in four states (Michigan, Ohio, Tennessee and Kentucky), which likely sets the issue up for another trip to the United States Supreme Court.

In more local news, a friend of mine engaged in a trial strategy (called “bold” by the New York Post) in his defense of a man accused of driving around Manhattan in under 30 minutes. Unfortunately for Mr. Tang, the jury found him guilty on all counts.

While the world enjoys some excitement, the majority of my week has been spent on debt validation cases and exploring the vast paperwork that comes when a consumer contests the debt claims of a collection agent. On paper, it can be a pretty boring way to spend your day, but when you find that discrepancy, it can make your day (and your client’s week).

Under the Fair Debt Collection Practices Act, the validation of debts is an important process to protect yourself.

§ 809.  Validation of debts   [15 USC 1692g]
(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --(1) the amount of the debt;(2) the name of the creditor to whom the debt is owed;(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.(c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
This week’s major discrepancy seems to be a loan taken out in my client’s name, in a state where he has never lived, and under a mis-spelling of his name. The documents don’t seem to indicate how the person who took the loan out got my client’s information with enough specificity to get the loan, but at least it is a start to get the case and investigation going.

The litigation to clear my client’s name will like take at least a year, but the upside is that we finally have something to go on and the process should work itself out to the right resolution in the end.

Wednesday, November 5, 2014

Quick Year End Planning Tips

As the year winds down, we have less than 60 days to go, it’s a good time to get your professional finances in order and plan for 2015. Does it look like you will have some extra cash on hand? Maybe it’s time to consider a little spending before the end of the year.

Or maybe you are like the bulk of my clients and you are staring at a stack of unpaid invoices from the past few months. Looking at those invoices, the extra cash in the business would make a difference come year-end, especially if you pay out year end bonuses to your employees. Or maybe you have a great idea for a holiday gift for your clients and professional contacts and the extra cash could add a little extra oomph to it.

So to help out, now is a good time to get back in touch with those people and companies that have open invoices and see if you can get them wrapped up before the end of the year. In the best-case scenario, your corporate coffers will be filled back up by Thanksgiving. In the worst-case scenario, you’ll have a list of folks who you may have to sue in 2015.

Either way, it’s best to get that year end planning done now so that you can look forward to starting 2015 on the best foot possible.

Monday, November 3, 2014

Cops Can Use Your Fingerprint to Unlock Your Phone

A Virginia judge has ruled that a suspect can be required to unlock his cell phone with his fingerprint, even though they can't be required to unlock the cell phone with a password (WSJ article here). While it seems that a lot of media has picked up on this decision (a timely tie-in to the release of the new iPhones that have the fingerprint scanning technology?), it helps to remember that this decision was issued by a Virginia Circuit Court judge, not the United States Supreme Court.

But if you want to further indulge in this discussion, check out my pal Eric Crusius discussing the matter on television yesterday: