Massachusetts Defamation Law

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According to both state and federal courts in Massachusetts,

Defamation is the publication, either orally or in writing, of a statement concerning the plaintiff which is false and causes damage to the plaintiff…A defamatory statement is one that hold[s] the plaintiff up to contempt, hatred, scorn, or ridicule or tend[s] to impair his standing in the community, at least to his discredit in the minds of a considerable and respectable class in the community.

See Yohe v. Nugent, 321 F.3d 35, 39-40 (1s Cir. 2003) as well as McAvoy v. Shufrin, 401 Mass. 593, 597 (1988).

To succeed on a defamation claim, a plaintiff must prove the following:

(1) the defendant made a false and defamatory communication

(2) the communication concerned the plaintiff

(3) the communication was published or shown to a third party.

(4) the plaintiff suffered damages as a result of the communication.

See Langadinos v. Bd. Of Trustees of Univ. of Massachusetts, 2013 U.S. Dist. LEXIS 141341, 2013 WL 5507042 (D. Mass. Sept. 30, 2013).

The statute of limitations for such a claim is typically three years.

According to MGL c.260, § 4 , actions for slander or libel “shall be commenced only within three years next after the cause of action accrues.”

If you have questions about defamation law or civil litigation in Massachusetts please contact me at justin@jrmccarthy.com.

 

Why Don’t Lawyers Return Phone Calls?

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People often complain that lawyers don’t promptly return phone calls. These complaints are usually overblown. In this video I discuss why lawyers can’t always answer the phone or return calls immediately. I also discuss why lawyers who spend all day on the phone are often the most incompetent and overpriced.

Mass. Court Bans Homeowners From Using Their New Swimming Pool

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Earlier this month Massachusetts Land Court issued an order banning a Kingston family from using their newly built swimming pool.

The order resulted from a lawsuit brought to enforce a Declaration of Protective Covenants that had been placed on the property in 1999 when the subdivision was developed.

The Declaration of Protective Covenants, recorded in the Plymouth County Registry of Deeds, states

No in-ground pool shall be located toward the forward portion of any lot beyond a line parallel and tangential with the rear of the residential dwelling located thereon.

It further states

NO ABOVE GROUND POOLS SHALL BE ALLOWED AT ALL.

It’s unclear from the court’s opinion whether the pool at issue was above ground or in-ground.

Regardless the court held that the pool violated the covenants for the subdivision.

The court enjoined the family from using the pool and imposed a fine of $100 for each future violation of the order.

The court also ordered that the family post and maintain a sign at the pool reading:

By order of the Land Court, no one is allowed to enter or otherwise use the Pool.  Anyone entering or otherwise using the Pool may be liable for a fine equal to $100 per day of each violation.

If you have questions about real estate law or need legal representation, please contact me at justin@jrmccarthy.com

 

Lis Pendens

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The court will issue a lis pendens prior to litigation over the legal ownership of real estate. This document is recorded at the registry of deeds. It notifies the public of the ownership dispute and makes all subsequent buyers subject to the trial’s outcome.

According to M.G.L. c. 184, section 15:

A wit of entry or other proceeding that affects the title to real property or the use and occupation thereof or the buildings thereon, shall not have any effect except against the parties thereto, their heirs and devisees and persons having actual non-record notice thereof, until a memorandum containing the names of the parties to the proceeding, the court in which it is pending, the date of the writ or other commencement thereof, the name of the town where the real property liable to be affected thereby lies and a description of the real property sufficiently accurate for identification is recorded in the registry of deeds for the county or district where the real property lies; but this section shall not apply to attachments, levies of execution or proceedings in the probate courts.

If you have questions about real estate law, please contact me at justin@jrmccarthy.com

Massachusetts Mortgage Payoffs

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If you’re selling your house then you’ll probably need a mortgage payoff statement from your bank before the closing. This document provides the full amount needed to payoff your home loan and discharge your mortgage.

According to M.G.L. c. 183, section 54D, your bank must provide you with the document within 5 business days of your request. The law also states that you are entitled to one free mortgage payoff every 6 months.

Furthermore,

a mortgagee, mortgage servicer or note holder who provides a payoff statement containing an erroneous payoff amount may not deny the accuracy of the payoff amount as against any person that reasonably and detrimentally relies upon the erroneous payoff amount and shall be bound by the statement for purposes of this section

A bank’s failure to comply with the payoff laws will make it liable for any expenses, legal fees or court costs incurred by the borrower.

If you have questions about real estate law please contact me at justin@jrmccarthy.com

Last Will & Testament of Martin Van Buren, July 24, 1862

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I, Martin Van Buren of the Town of Kinderhook County of Columbia, and State of

New York, heretofore Governor of the State and more recently President of the

United States, but for the last and happiest years of my life, a Farmer in my

native Town, do make & declare the following to be my last will & testament.

First.

I direct my Executors hereinafter named to pay without delay, my

funeral expenses & all outstanding bills. Debts in the ordinary acceptation of

that term I owe now & hope to leave none.

Secondly.

I direct that no account shall be taken of advances by me heretofore made to

either of my sons and that they shall be considered as settled – with the

exceptions of a bond I hold against my son Abraham for two thousand Dollars.

And also a note against my son John for Four Thousand Eight hundred and

fifteen dollars which were agreed to be considered as business transactions

strict the amount due on each at my death (the interest having been punctually

paid to the present year) is to be charged to them respectively and deducted

from their shares of my estate. The like charge and reduction shall be made in

respect to any future payments by me or by my Estate in cases where I have

made myself liable as surety for either of my sons, but in which nothing has

yet been paid by me.

Thirdly.

In consideration of advances which I have made to my sons Abraham & John

whilst now have been made to my son Smith Thompson, I bequeath to the latter

all my personal chattels & effects, excepting therefrom all the debts that may

be due to me and stocks that I may own at my death, and also my wine & stock

on my farm, my miscellaneous library is intended to be included in this

bequest, but not my law library which I bequeath to my son John.

Fourthly.

I give to my grandson Singleton Van Buren a gold snuff Box presented to me

with the Freedom of the City by the Corporation of the City of New York, and

to my grandson Martin son of Abraham, the marble bust made of me by Powers

which I had previously presented to his mother, I now transfer to the son by

her direction I give to my grandson Martin Van Buren son of my son Smith

Thompson, a silver pitcher, presented to me, some years since by my old &

always sincere friend Benjamin F. Butler.

Fifthly.

I direct my Executors to expend four hundred dollars, or so much thereof as

may be necessary, in obtaining a copy of the bust of me by Powers, which copy

I give to my grandson Edward Livingston Van Buren.

Sixthly.

I direct my Executors to lay out five hundred Dollars for Keepsakes for my

grandson Travis Van Buren, and for my granddaughters, Anna, Ellen, Catherine &

Eliza Van Buren.

Seventhly.

I request my Executors to regard themselves as standing toward my best of

sisters Dirike Van Buren if she shall survive me, in the relation I occupied

when living, & to omit nothing in the way of pecuniary advances that may

contribute to her comfort out of my Estate.

Eightly.

I direct my Executors to pay to my niece Christina Cantine two hundred dollars

& to each of my nieces Lucretia Van Buren & Jane Ann Van Buren the sum of one

hundred dollars; and I give and devise to my nephew Martin Van Buren, son of

my brother Lawrence, & to his heirs and assigns forever all my interest in a

small dwelling with the Lot on which it stands adjoining his father’s house,

conveyed to me by the latter as security for money lent, but the latter devise

is upon condition that his father relieves me or my estate from my remaining

security ship to the State of New York.

Ninthly.

I hereby appoint my three sons Abraham, John & Smith Thompson, Executors of my

last & only will; and I do hereby authorize & empower them or such of them as

shall take upon themselves the execution thereof, and the survivors or

survivor of them, to fulfill by the Execution of conveyances & otherwise as

may be proper, any contracts for the sale of lands, made by me, which shall be

outstanding at the time of my death.

Lastly.

I hereby give devise & bequeath to my three sons, Abraham, John & Smith

Thompson all the remainder & residue of my personal Estate not required ro the

purposes of my will under the provisions above made, & all my real estate

wheresoever situated, to be equally divided between them To Have and to hold

their respective shares thereof to them, their heirs & assigns forever,

subject to the following conditions & reservations viz –

First – that out of the avails of the sale of Lindenwald there shall be

reserved & paid over to my son Smith Thompson, his heirs or assigns the sum of

Seven Thousand five hundred dollars in full satisfaction for his advance

towards the expenses incurred by the additions to and improvements upon the

dwelling House & out buildings with the expectation that the Place would be

devised to him upon terms that would be equitable in the respect to his

brothers, the payment to be without interest during my lifetime.

Secondly – that upon the sale of Lindenwald the preference shall be offered in

succession to my sons, beginning for the reason above assigned & no other,

with the youngest if the son accepting the same as willing to pay therefor as

much as the place can be sold for on the market.

The three pieces of plate last presented to me for by deceased friend,

Benjamin F. Butler, I bequest to my three sons Abraham, John & Smith Thompson,

to be equally divided between them.

In witness whereof I have to this Instrument set my hand & seal this

eighteenth day of January in the year of our Lord one thousand Eight hundred

and sixty.

Van Buren (seal)

Massachusetts Real Estate Liens: Attachments and Executions

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Trial courts issue two types of real estate liens: attachments and executions. An attachment is issued prior to trial. It prevents a defendant from taking property out of his name in anticipation of an unfavorable judgment. An execution will be granted to the party who wins the lawsuit. It’s used to help the winning party collect the money that’s owed to him. Both liens are good for six years and 90 days.

If you need legal representations please contact me at justin@jrmccarthy.com