Law Office of Justin R. McCarthy

If 2020 has taught us anything, it’s that police throughout the Western world will not hesitate to forcefully impose arbitrary and absurd government regulations. 

Consider just a few examples from this month alone.  In Australia a pregnant mother was arrested in front of her family for a Facebook post inviting fellow Aussies to an anti-lockdown protest.[1]  In Spain a fourteen-year-old boy who refused to wear a mask was thrown to the ground by an officer who then kneeled on the boy’s back as he screamed in pain.[2]  In the US two policemen removed a mother and her year-old child from an airplane because the infant’s face was not covered.[3]  Most disturbing of all, police in Quebec have been quietly seizing and detaining healthy citizens who have refused to comply with the city’s COVID-19 regulations.[4]

All of these incidents were reported with indignation by pundits in the right-wing media.  Conservative commentators rightfully warn us that government is overstepping its bounds and that we may be the next to get an unwanted visit from the police or even a shove to the ground and a knee to the back. 

Yet it’s the same right-wing pundits who are the first to defend the most excessive police brutality whenever someone refuses to comply with an officer’s orders.  They faithfully “back the blue” with almost blind loyalty and even support arming the police with military-style weapons and equipment. 

Do these conservatives fail to see their own contradictions?

Ask yourself: if full-fledged socialism comes to the Western world, who will be on the front line imposing it?  It won’t be the beta-male bureaucrats forcing you to comply.  It will be the “thin, blue line” of the police—equipped with their military-grade weaponry—that will physically force you to obey orders.  Don’t think they’ll do it?  Just look at the cases I cited. 

I am not advocating defunding the police.  No sane person would propose that.  Nor am I suggesting that a police force is antithetical to a free society.  We need cops.  Rather, I’m asking conservatives to reflect for a moment on their contradictory views.  Government and law enforcement are one and the same.  You cannot be critical of laws that infringe on our liberties while praising the men and women who dutifully enforce those laws—if necessary with violence.

Our freedom depends on a healthy skepticism towards government.  That skepticism should be applied to all facets of the state, especially the police.

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[1] https://www.usatoday.com/story/news/world/2020/09/02/pregnant-woman-arrested-over-anti-lockdown-event-australia/5693574002/

[2] https://www.thesun.co.uk/news/12634607/cop-kneels-neck-boy-george-floyd-mask/

[3] https://www.dailymail.co.uk/news/article-8715603/WestJet-canceled-flight-dispute-toddler-mask-rules-caused-rapid-escalation-board.html

[4] https://summit.news/2020/09/09/quebec-city-says-it-will-isolate-uncooperative-citizens-in-secret-corona-facility/

A recent decision by the Massachusetts Appeals Court considered when and how a plaintiff can sue a defendant for comments made online. The key points of the decision are as follows:

Statue of limitations

According to the court, an action for defamation due to an online post must commence within three years of the date of publication, i.e., the date when the statement was posted online. The court rejected the argument that the statue of limitations begins from the time that plaintiff first learned of the publication.

Single-publication rule

Next the court held that the defendant/publisher (in this case a newspaper) can be sued for only one instance of defamation and cannot be sued for each and every time a person viewed the posts at issue.

Under the [single-publication rule], a person may bring one (and only one) cause of action for defamation against the publisher based on its publication of the defamatory statement.

Fair report privilege

Finally, the court ruled that the “fair report privilege” applied to online posts such as the one at issue here where a newspaper simply reported on the plaintiff’s arrest based on the official police report.

The fair report privilege establishes a safe harbor for those who report on statements and actions so long as the statements or actions are official and so long as the report about them is fair and accurate.”  Howell v. Enterprise Publ. Co., 455 Mass. 641, 651 (2010)….a report need give only a rough-and-ready summary that was substantially correct in order to qualify for the fair report privilege.  A statement is considered a fair report if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.

Need legal help? Email justin@jrmccarthy.com.

According to a recent opinion by the Massachusetts Appeals Court, those seeking to authentic a last will and testament may use extrinsic evidence such as handwriting samples.

The ruling was made after a probate court judge in Middlesex County refused to permit such evidence during a trial.

The opinion states:

“By denying [the appellant] the opportunity to present extrinsic evidence for consideration in determining proper execution of the will, the judge deprived [him] of a ‘full and fair hearing upon the whole evidence’ in violation of due process…We do not here decide whether the extrinsic evidence proffered by [the appellant] was sufficient to prove the validity of the will, but rather conclude only that the judge erred in restricting [his] presentation to that evidence in violation of G.L. c. 19B, Section 3-406. Therefore, [the appellant] must be provided the opportunity to present admissible ‘other evidence’ to prove the will as instructed by the statute, and may do so without the aid of expert testimony. In addition, the judge may revisit the issue of permitting expert testimony on the subject.”

Need legal help? Email justin@jrmccarthy.com

A recent ruling by the US Court of Appeals in Colorado held that a couple’s private student loan debt can be discharged through bankruptcy.

The ruling significantly impacts the long-standing legal concept that such loans were non-dischargeable under the bankruptcy code.

In the 48-page opinion, the court states:

This case raises a question of first impression in this circuit: does an educational loan constitute ‘an obligation to repay funds received as an educational benefit…We conclude that it does not. Exercising jurisdiction under 28 U.S.C. § 158(d)(2)(A), we affirm the bankruptcy court’s interlocutory order denying Navient’s motion and remand the case for further proceedings.

According to one bankruptcy expert who spoke with yahoo.com (article here),

the ruling potentially converts a ton of student loan debt… if adopted nationally, tens of billions dollars, from presumptively non-dischargeable to automatically dischargeable.

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

Nearly half of all Americans have a debt that’s in collections.

If you receive a letter from a debt collection agency it will most likely contain a sentence or two notifying you that you have a right to dispute the debt within 30 days.

When you dispute your debt, all collection efforts must stop until the creditor verifies its claims.

According to 15 U.S.C. § 1692g (b), upon receipt of a borrower’s dispute letter “the debt collector shall cease collection of the debt, or any portion thereof, until the debt collector obtains verification of the debt…and a copy of such verification…is mailed to the consumer by the debt collector.”

In Massachusetts the law is even more favorable to debtors.

940 CMR 7.08 (2) states,

If the debtor, or any attorney for the debtor, notifies the creditor in writing within the 30-day period described in 940 CMR 7.08(1), that the debt, or any portion thereof, is disputed, the creditor shall cease collection of the debt, or any disputed portion thereof, until the creditor verifies the debt and provides the debtor, or any attorney of the debtor, by first class mail, the following materials: (a) All documents, including electronic records or images, which bear the signature of the debtor and which concern the debt being collected; (b) A ledger, account card, account statement copy, or similar record, whether paper or electronic, which reflects the date and amount of payments, credits, balances, and charges concerning the debt, including but not limited to interest, fees, charges or expenses incidental to the principal obligation which the creditor is expressly authorized to collect by the agreement creating the debt or permitted to collect by law; (c) The name and address of the original creditor, if different from the collecting creditor; and (d) A copy of any judgment against the debtor. Pursuant to 940 CMR 7.08(2), the creditor must provide those materials described in 940 CMR 7.08(2)(a) through (d) which are in the possession, custody or control of the creditor. If the creditor does not possess, have custody of, or control the materials described in 940 CMR 7.08(2)(a) through (d), the creditor shall cease collection of the debt until the creditor has made reasonable efforts to obtain the necessary information and provide this information to the debtor.

Every debtor should force his or her creditors to comply with these laws and justify their claims.

Below is an example dispute letter a Massachusetts resident could use against collection agencies.

Acme Debt Collection                                                 May 21, 2019

RE: Dispute of Debt; Account # 123456789

Acme Debt Collection,

I hereby dispute the above-referenced debt.

Please provide me with copies of the following:

1. A copy of my agreement to pay the original creditor
2. A copy of the final account statement issued by the original creditor
3. A breakdown of all other charges including collection costs. Please provide the date and the basis for each charge.
4. All documents, including electronic records or images, which bear my signature and which concern the debt being collected
5. A ledger, account card, account statement copy, or similar record, whether paper or electronic, which reflects the date and amount of payments, credits, balances, and charges concerning the debt, including but not limited to interest, fees, charges or expenses incidental to the principal obligation which the creditor is expressly authorized to collect by the agreement creating the debt or permitted to collect by law.

Sincerely,

John Doe

If you have any questions, please feel free to contact me via email at justin@jrmccarthy.com.

According the Massachusetts Rule of Professional Conduct 1.5(b)(1):

the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing before or within a reasonable time after commencing the representation

In this video I discuss fee agreements for legal services.

Need legal help?  Contact me at justin@jrmccarthy.com

The cost of buying or selling a home varies.

But there are a few expenses that are paid in almost every purchase or sale.

Seller’s Expenses

The seller will usually need to pay for the following:

• Realtor’s commission – 5 to 6.25% of the sale price
• Lawyer’s fee – $500 to $1,000
• Stamp tax – $4.56 per $1,000
• Payoff of seller’s mortgage or other liens
• Payoff of seller’s outstanding city or town fees (e.g., real estate taxes, final water bill, etc.)

All expenses will be deducted from the check that the seller receives at the time of the closing.

Here’s an example.

Sally sells her house for $100,000.   Her realtor’s commission is 5%.   Her lawyer’s fee is $500.  And she has a mortgage with a current balance of $50,000.

The calculation would look like this.

$100,000 – Purchase Price

– $50,000 – Mortgage Payoff

-$5,000 – Realtor Commission

– $500 – Legal Fee

– $456 – Stamp Tax

 $44,044 – Due to Sally at closing

Keep in mind that other small fees such as registry recording costs and final municipal bills may also need to be deducted.

Buyer’s Expenses

The buyer will pay for more services.

At the very least, the buyer will pay for the following.

• Lawyer’s fee – $500 to $1,000
• Title Exam – $150 to $250
• Land Survey – $150 to $250
• Owner’s Title Insurance – About $3.75 per $1,000
• Municipal Lien Certificate – $25 to $50
• Registry of Deeds Recording Fees – $125 for a deed

If the buyer is getting a bank loan to purchase the property, then there will be additional charges.

• Loan Origination Fee – about $500 to $1,000
• Appraisal – $350 to $450
• Tax Services – About $20
• Flood Certificate – about $10
• Registry of Deeds Recording Fees – $175 for the mortgage, $65 for the municipal lien certificate
• Lender’s Title Insurance Policy  – this expense will vary depending on the type of policy your lender requires (standard or expanded) and whether you are also purchasing your own title insurance policy (i.e., an owner’s policy).  Here’s a link that will allow you to calculate the cost of title insurance.

The lender will also require the buyer to set aside about two to three months of real estate taxes and homeowners’ insurance payments.

This money will be put into an escrow account and managed by the bank.

The bank may also require you to pay interest on the mortgage from the day of the closing to the end of the month.

Finally, you may need to purchase mortgage insurance.

It’s difficult to give a good ballpark number for the average buyer’s closing costs.

If you’re buying the property with cash, ask your lawyer upfront for a good closing cost estimate.

If you’re getting a loan, the bank will provide you with a document called the “Good Faith Estimate” or GFE.

The GFE will break down most of the expenses that you will need to pay on the day of the closing.

The expenses that you pay cannot greatly exceed what the lender estimated.

If the closing expenses do exceed the estimate by more than 10%, the lender will need to pay the difference.

Never underestimate the importance of legal notices. Judges routinely refuse to hear legal matters due to what they consider improper or insufficient notice. In addition, the notices you send will often be scrutinized and challenged by the opposing attorney.

Legal notices vary depending on the type of case and what court is hearing the matter.

But here are some general tips that apply in all circumstances:

1. Read and follow the procedural rules for serving notice that apply to the type of case you’re handling;
2. If you’re uncertain whether a person is entitled to notice, it’s usually best to serve notice on him or her;
3. If the court directs you to publish a legal notice, you must follow their directions to the letter.

I discuss each of these tips in more detail in this video:

Need legal help?  Email justin@jrmccarthy.com

The Massachusetts Appeals Court has ruled that the “ministerial exception rule” bars a church music director from suing the Archdiocese of Boston for alleged harassment.

Alessendrinia Menard was the music director at Saint Mary’s Parish in Franklin, Massachusetts for eighteen years.

Before leaving her job with the parish, she filed a complaint against her employer with the Massachusetts Commission Against Discrimination.  In her complaint, Menard alleged that she was subjected to harassment due to her age and gender.

The complaint was rejected by the commission in 2016 because their investigation found no probable cause for Menard’s claims.

Undeterred, Menard filed a lawsuit against the Archdiocese of Boston in Superior Court.   Her case was dismissed by the court on the basis of an affirmative defense known as the “ministerial exception.”

The Superior Court’s ruling was upheld by the Appeals Court.

In its ruling, the Appeal Court discussed the ministerial exception.

The First Amendment to the United States Constitution guarantees individuals the right to the free exercise of religion and prohibits the establishment of religion by the Federal government. The ministerial exception doctrine developed to protect those rights. As the United States Supreme Court has explained, “Since the passage of Title 7 VII of the Civil Rights Act of 1964 . . . , and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.” HosannaTabor Evangelical Lutheran Church & Sch. v. Equal Employment Opportunity Comm’n, 565 U.S. 171, 188 (2012) (Hosanna-Tabor). The ministerial exception serves to prevent courts from “interfer[ing] with the internal governance of the church, [and] depriving the church of control over the selection of those who will personify its beliefs.” Id.

The court rejected Menard’s argument that the exception did not apply to her because she was only the music director and not a member of the clergy.

According to the court, music plays a key “role in conveying the Church’s message and carrying out its mission.”

Citing the Supreme Court case Hosanna-Tabor Evangelical Lutheran Church & Sch. V. Equal Employment Opportunity Comm’m, 565 U.S. 171 (2012), the Appeals Court found that there is

 “undisputed evidence . . . that music is an integral part of the celebration of Mass,” id., the court held that there was enough for the ministerial exception to bar the plaintiff’s claims where there was “no genuine dispute that . . . by playing the piano during services, [the plaintiff] furthered the mission of the church and helped convey its message to the congregants.” Id. at 177.

On these grounds, the complaint against the Archdiocese was dismissed.

Email signatures are often legally binding. If emails show an agreement between two people with signature lines added, Massachusetts courts will likely interpret the emails as a signed contract. The same is true for other forms of electronic signatures. However, some legal documents, such as wills and deeds, can never be signed digitally.

Need legal help? Email justin@jrmccarthy.com.