FAQS

MY PROPERTY IS BEING FORECLOSED UPON. SHOULD I CONTEST IT?

The decision as to how to respond to a foreclosure requires you to look at your complete financial situation. Some people need to file a Chapter 13 petition in the Bankruptcy court; but some people are – for a number of reasons – not good candidates for Bankruptcy and might benefit from trying to fight or delay the foreclosure. Sometimes, putting up an aggressive defense can bring the lender to the table. Part of my practice focuses on doing just this; it is very complicated for a lender to bring a foreclosure; with a sustained defense, it can become even more difficult. I recently published an article in the Maine Bar Journal on the subject.

There are a number of programs through which homeowners facing foreclosure can seek a restructuring of their mortgage obligations. Some of these may be available and effective. For non-homeowners, an aggressive defense to foreclosure may lead to a resolution offering some of the same benefits.


 

PERSONAL INJURY SUITS

If you have been involved in an accident resulting in personal injury, you should first get appropriate medical treatment, and then you should find out what your rights are. I do not charge for an initial consultation with respect to personal injury matters, and matters can be handled on a contingent-fee basis so that you only pay a legal fee in the event that you recover money.


 

DO I NEED A WILL OR OTHER ESTATE PLANNING?

Estate planning serves at least four purposes:

Maine law sets forth who inherits in the absence of a will, but you may not wish to have those people inherit. You can modify this by having a will.

Adequate planning may make it unnecessary to probate your estate; and if the estate needs to be probated, having a will may make the process considerably easier.

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We are all going to die; in an era of medical advances, the period during which we may find ourselves unable to care for ourselves may be prolonged. By signing durable powers-of-attorney and health care powers-of-attorney, we not only make our end-of-life preferences clear to those who have to carry out the directives, we avoid conflicts among survivors over these issues, and can avoid costly disputes in probate court over control of these issues at what is often the most difficult point in our lives.

Statistics will show that a disproportionate share of American families are blended families, incorporating children from prior marriages. Sensitivity to the issues that might arise among surviving children is very important in estate planning, both with respect to traditional and non-traditional families. Even same-sex couples who have registered as domestic partners under the Maine domestic partnership registry need to undertake these planning tasks. Maine's domestic partnership law has significant gaps in it, when compared with the rights of married couples.

Not all estates will be subject to taxation.

In Maine it is important to bear in mind that Maine's Estate Tax kicks in at a threshold below that of the Federal Estate Tax. For this reason, there may be estates here in Maine that will not be subject to the Federal Estate Tax but which may nevertheless be subject to the Maine Estate Tax. Adequate advance planning may save money.

Unmarried couples – whether of the same or opposite sexes – may have more significant tax-planning challenges than those faced by married couples. This is because the estate tax recognizes a marital deduction for the portion of an estate left to a surviving spouse, a tax benefit not available to the unmarried. Under the Federal Defense of Marriage Act, even same-sex married couples who have been married in a state which recognizes marriage equality, will not take advantage of the marital deduction. In addition, the Federal gift-tax exemption for gifts between spouses is also not recognized for same-sex married couples. For this reason, same-sex couples need to do even more advance-planning than do opposite-sex spouses.

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I JUST GOT SUED. WHAT DO I DO?

Assuming you have been served with a summons in a civil lawsuit, time is of the essence. You generally have twenty (20) days in which to file an answer to the complaint or you may be subject to a judgment by default. Furthermore, any claims you may have against the party suing you may be lost if they are not promptly asserted.

You should immediately find an attorney, and even if the attorney is not the one to represent you, he or she may be able to help you find someone. The attorney's ethics rules require that he or she immediately ascertain whether there exists any conflict-of-interest, and this could occur, if the attorney or any member of his or her firm represents an adverse party or an insurance company that my itself be required to defend or indemnify an adverse party. For this reason, when you call an attorney to arrange a meeting, you should be prepared to provide the lawyer with the names of all parties to the lawsuit, and if there are any parties you think may also bear or share responsibility on any side of the case, these names need to be provided as well.

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When you consult with an attorney, you should be able to have confidence that you can be entirely honest and forthcoming with the attorney. If an attorney may have a conflict-of-interest, you should not be sharing confidential information with the lawyer. Except for the most routine and minor matters, an attorney should issue to you a letter of engagement, which spells out the terms under which he or she will represent you, and how you will pay for the services.

Unless the attorney instructs you otherwise, it is a good idea to locate and bring in a copy of any insurance policies which might offer coverage. If you are being sued in a real estate dispute you should bring in any title insurance policies you may have, as well as any documents from the acquisition of the property; sometimes, even in a real estate dispute, depending on the nature of what is alleged in the complaint, a homeowners policy might help fund a defense. Remember that insurance policies provide two kinds of protection: the duty to defend and the duty to indemnify in the even someone get a judgment against you. The duty to defend is broader than the duty to indemnify, so even if there is no duty to indemnify, some policies may nonetheless provide a defense.

If someone is claiming you injured them in their person, in some respect, there may be coverage under your homeowner's policy.

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APPELLATE LITIGATION

There are many attorneys who are excellent trial lawyers, and while I like to consider myself as one of them, there is a smaller pool of attorneys who have extensive experience in appellate practice, and I am pleased to count myself among them, as well.

I have, during my career, argued many cases in the Law Court (at last count, I had handled approximately 37), and I have also handled and argued cases in the U.S. Court of Appeals for the First and Ninth Circuits. Although I have not yet argued any cases in the United States Supreme Court, I have successfully handled two cases , one of which was appealed to the Supreme Court and one of which was the subject of a petition for a writ of certiorari.

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A number of these cases have been referred to me by trial counsel for appeal, where I had not been counsel in the court below; I am willing to accept referrals for cases to be appealed.

Of course, the foundation for a successful appeal is built in the trial court; but there is an important component of strategy, judgment, and craftsmanship in formulating and articulating your arguments to a panel of appellate judges.

Remember that the time for initiating an appeal in the Maine court system is twenty-one days from entry of judgment.

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DECIDING WHETHER TO BUY TITLE INSURANCE

By way of full disclosure, I should point out that I am an agent for a Title Insurer, so it is theoretically possible that my advice could be colored by that fact, but I think there are several major reasons that you should buy title insurance, that I will address here.

I have been handling real estate disputes and litigation for many years, and I have often had people in my office, and have needed to tell them how much they were about to have to spend on legal fees over a title dispute. I am well aware that most people don't have a line-item in their monthly household budget entitled "real estate litigation." Often, at a closing, a purchaser has to make a decision as to whether to buy an "owner's" title insurance policy, as opposed to just paying for a lender's policy which will only protect the lender. If a title problem ensues, the investment will have been well worth it.

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Here are a few common fallacies, and the reasons they are fallacies:
  • I am getting a warranty deed. What do I need a title insurance policy for? If the people who gave you a warranty deed are gone, or are dead, or have no financial resources. The fact that you have a warranty deed may not help. Further, if you find the house you bought was located on other land than was described in the deed, before you can sue on the warranties, you need to bring a separate action to reform the deed, and only then can you sue on the warranties. Having a warranty deed doesn't mean your seller will have to pay your legal fees.
  • Well, the bank was issued a policy when I bought the property. If the loan has been paid off, the coverage under the lender's policy no longer is effective, and in any event, it doesn't protect you.
  • I had the Title searched by an attorney. The attorney is required to go back only 40 years to determine that you have marketable title. "Marketable title" doesn't mean you have good title against someone who has a claim based upon an instrument your lawyer would not have been required to find in order to determine there is marketable title. For instance, an attorney searching title might find a warranty deed from 1969, and properly "rest" his title on that deed. If the 1969 grantor didn't have any title to convey, a third party could make a claim, and unless the attorney did something wrong, you would be without a remedy. A title insurance policy insures that you have both good and marketable title. Absent a title insurance policy, you might have to first sue the attorney and establish that he was negligent in some way, and only then might you have a remedy. With title insurance the only issue is that someone makes a claim against your good title. When you go to sell property you own, you want to have the deal close. No deal waits around for the litigation to be over. A title insurance company can make the deal happen.

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