Plan Your Estate Now While You’re Young and Healthy

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I’m in the process of revising my estate plan.

I’m 36 years old and in good health.

Death, I hope, is many years away.

Still the whole process—writing my will, devising my assets, naming a guardian for my children, etc.—causes me to think of the inevitable.

It’s not a pleasant experience.

No one wants to think of death.

And it’s one of the main reasons why people put off estate planning.

Planning your estate is never easy.

But it’s especially difficult when death is imminent.

Occasionally I’ll assist an elderly or terminally ill client with a last will and testament.

It’s always an emotional experience for everyone involved—the client, the family members, even the witnesses and lawyer.

That’s why I encourage clients to plan their estates when they’re in good health.

Planning your estate when you’re young and healthy makes the process less emotional and more business-like.

For many people, the best time to start the process is after their first child is born.

Your plan should then be revised periodically as major life events happen (e.g., new children are born, devisees die, people divorce, etc.)

So don’t put off estate planning any longer.

If you have any questions concerning estate planning, please feel free to contact me at justin@jrmccarthy.com.

Springfield’s Real Estate Taxes Will Increase in 2018

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Last night Springfield’s City Council voted to increase property taxes in 2018.

The Council raised residential rates from $19.66 per $1,000 to $19.69 per $1,000.

The commercial rate was also raised from $39.07 per $1,000 to $39.35 per $1,000.

The average homeowner can expect to pay about $109 more per year with the new rate.

Commercial property owners will pay about $2,900 more to the city in 2018.

If you have any questions regarding real estate matters, please feel free to contact my office at justin@jrmccarthy.com.

 

Law Grads: If Firms Aren’t Hiring, Hang Your Own Shingle!

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Apparently the world really doesn’t need any more lawyers.   The unemployment rate for recent law school graduates has been low for nearly a decade.  And there’s no sign of it improving.

I’m sure many people welcome the news.  A few less lawyers causing problems is a good thing, right?

But for the young attorneys entering today’s job market, some of them with crushing student debt, it’s a frightening thought.

I certainly know the feeling.  After being sworn into the bar in 2010, I stepped out into the marketplace looking for employment and found absolutely nothing.

Eventfully I managed to get a part-time legal job paying just above minimum wage.  It was a humbling experience.  But it gave me a chance to enter the profession.

It also helped me realize that even if there were no legal jobs, there was still plenty of legal work.  Law firms didn’t need new associates.  But people still needed attorneys.

It didn’t take long before I decided to leave my low-paying job and start my own practice.  It was a rough start to say the least.

However, after a few tough months, work started to trickle in.  One client seemed to lead to another and work began to increase rapidly.

Within a couple months I had enough money to open a small office on North Main Street in East Longmeadow and, since then, my business hasn’t stopped expanding.

I’m not trying to tout my business.  Instead, I’m trying to give some optimism to the hundreds of unemployed attorneys in our area.

If you can’t find a job, then do what Americans have been doing for generations; make one for yourself.  There’s still a need for legal work.  So go out there, hang a shingle, and make yourself useful!

Defective Concrete Used in Western Mass Homes

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Homebuyers beware!

Some homeowners in Hampden County are beginning to see major deterioration in their homes’ foundations due to defective concrete.

The concrete was distributed by JJ Mottes concrete company and used throughout this area from 1983 to 2017.

The concrete contains a mineral called pyrrhotite.

This mineral—when exposed to water and oxygen—breaks down over time.

The concrete itself will begin to crack and crumble within 10 to 20 years.

Anyone buying a home that was built between 1983 and 2017 should be cautious.

Hire an inspector who is familiar with pyrrhotite and who knows how to detect it.

Also, speak with your insurance agent and see if the policy you’re buying will cover the issue.

So far insurance companies have refused to cover affected homeowners in Massachusetts.

If you’re buying or selling a home and need an attorney, please contact me at justin@jrmccarthy.com.

“Do Not Resuscitate” Tattoo Confuses Doctors

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An unconscious 70-year-old Florida man was recently rushed to a Miami hospital for emergency treatment.

Tattooed across the man’s chest were the words “DO NOT RESUSCITATE”.  The man’s signature was tattooed just below the words.

The case was recorded by the emergency-room doctors in the New England Journal of Medicine.

According to their report, they made several attempts to revive him but “failed to produce a mental status adequate for discussing goals of care.”

This put the doctors in a difficult position.

This patient’s tattooed DNR request produced more confusion than clarity, given concerns about its legality and likely unfounded beliefs that tattoos might represent permanent reminders of regretted decisions made while the person was intoxicated.

Nevertheless, the team treating the man initially decided to disregard the tattoo.

We initially decided not to honor the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty.  This decision left us conflicted owing to the patient’s extraordinary effort to make his presumed advance directive known.

However, the doctors also brought the matter to the attention of the hospital’s ethics consultants.

The consultants advised against the doctors’ decision to resuscitate the man and insisted that the directive given in the tattoo be honored.

They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests.

The man eventually died.

Luckily, shortly after the incident, a formal copy of the man’s advance directive was found by a social worker assigned to the case.

The advanced directive supported the man’s tattoo.

So what can be learned from this story?

Nothing, according to the doctors involved.

Despite the well-known difficulties that patients have in making their end-of-life wishes known, this case report neither supports nor opposes the use of tattoos to express end-of-life wishes when the person is incapacitated.

If you have questions about advanced directives or estate planning, please contact me at justin@jrmccarthy.com.

 

Wells Fargo Home Mortgage Accused of Improperly Charging Borrowers for Bank’s Delays

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Wells Fargo is currently being investigated by the Office of the Comptroller of the Currency (OCC) for allegedly charging borrowers improper fees during the home loan process.

The investigation stems from a letter sent by a former Wells Fargo employee to the U.S. House Committee on Financial Services and the U.S. Senate Committee on Banking.

According to the letter, Wells Fargo was involved in a “systematic effort to wrongly offload the cost of…Interest Rate Lock Extensions onto borrowers.”

Rate-lock extensions are used when the closing process is delayed and the borrower wants to keep the interest rate originally approved by the bank.

The fee is a percentage of the loan amount and usually costs between $500 and $1,500.

Banks are allowed to charge such a fee only when the borrower has caused the delay.

Wells Fargo, however, “was making a concerted effort to find any way possible to lay any & all blame for delays in the mortgage loan application process into the laps of borrowers/customers.”

The bank did this, “so that they could rationalize having the customers pay for the Interest Rate Lock Extension fees.”

According to the letter, Wells Fargo did this in three ways.

First, underwriters would “note [the borrower’s] file for ‘missing’ customer documentation or information that had already been provided.

Second, loan processors and loan closers would also note “file[s] for ‘missing’ customer documentation or information that had already been provided.”

Finally the bank would simply label their own delays as “customer-caused” or “customer-related”.

Wells Fargo will likely be sanctioned by the OCC if the allegations are substantiated.

If you have any questions about the home loan process, please contact me at justin@jrmccarthy.com.

Appeals Court: Widow Not Liable for Deceased Husband’s Mortgage

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Earlier this month the Appeals Court ruled that a widow was not liable for a home loan her husband received prior to his death.  Wells Fargo Bank v. Comeau

The facts of the case were as follows.

– William and Nancy Comeau were joint owners of a house in Groveland, Mass.

– In 2003 William received a loan from Haverhill Cooperative Bank (Haverhill). Both William and Nancy signed the mortgage.

-In 2005, William refinanced the loan with Wells Fargo. Only William signed the mortgage.

– Part of the money from the refinance was used to pay off the 2003 Haverhill mortgage.

-William died in 2008 and Nancy took full ownership of the home.

-William’s estate defaulted on the mortgage payments.

– Because only William signed the mortgage, Wells Fargo was unable to foreclose on the home.

The bank, therefore, brought an action seeking equitable subrogation.

The bank’s attorney argued that Wells Fargo assumed all the rights that Haverhill had over the property because Wells Fargo paid off Haverhill’s 2003 loan.

Both William and Nancy signed the Haverhill mortgage.

Thus, if the court allowed Wells Fargo’s request for equitable subrogation, the bank could foreclose on the home and wipe out Nancy’s ownership.

The Appeals Court denied the bank’s motion.

The court had two rationales for its decision:

First,

[t]he question in such cases is whether [Wells Fargo] reasonably expected to get security with a priority equal to the mortgage being paid… there are no facts in the record to support Wells Fargo’s claim that [it] intended to hold a mortgage on the entire property, not subject to Nancy’s right of survivorship.

Second,

 [s]ubrogation to a mortgage is usually of importance only when a subordinate lien or other junior interest exists on the real estate…If no such interest existed, the subrogee could simply sue on the obligation, obtain a judgment lien against the real estate, and execute on it…Here, although the 2005 mortgage was extinguished upon William’s death, when his interest in the property passed to Nancy, Wells Fargo still held the 2005 note secured by that mortgage. It could have made a claim against William’s estate for the balance of the note, but chose not to. In our view, the law does not allow Wells Fargo to enlist the aid of the court to transfer to Nancy the obligation of William to pay the note, simply because that is Wells Fargo’s only remaining avenue to recover its funds.

If you have any questions regarding foreclosure or property law, please feel free to contact me at justin@jrmccarthy.com.

 

Land Court: Texts Do Not Form Real Estate Contract

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Earlier this month Massachusetts Land Court ruled that text messages alone were insufficient to form a binding real estate contract.  Cabral v. Drouin, 17 MISC 000616.

The text messages were exchanged between a perspective homebuyer and the seller’s real estate agent.

After a few days of negotiating a sale price, the agent sent a text message to the perspective buyer stating

$225,000 and I will get [the seller] to sign tonight!!!

Upon receiving the text, the perspective buyer responded

Done!  Accepted at $225,000.  Thank you.

He then signed an Offer to Purchase Real Estate and mailed it to the agent.

The seller did not sign the Offer and refused to take the house off the market.

The perspective buyer filed an action in Land Court seeking an order from the court requiring that the house be sold for the agreed upon price.

The plaintiff’s version of the facts are recited in a affidavit recorded in the Middlesex Registry of Deeds in Book 70067, Page 376.

The court dismissed the case on November 8.

The house was sold for $247,100 on November 22.  The deed is recorded in Book 70279, Page 149.

If you have any questions regarding buying or selling your home, please contact me at justin@jrmccarthy.com.

No Will? Then Who Inherits Your Estate?

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If you do not have a will, who will inherit your property (i.e., your estate) when you die?

Here are some common scenarios.

1. You’re married with children – Your spouse will inherit your property.  MUPC § 2-102(1)(ii)

2.  You’re married without children and without a surviving parent – Your spouse will inherit your property. MUPC § 2-102(1)(i)

3.  You’re married without children but one or both of your parents outlive you – Your spouse will inherit the first $200,000 and ¾ of any balance of the estate.  Your parents will receive the remaining ¼.  MUPC § 2-102(2)

4.  You’re married and you or your spouse has a child from a previous partner – Your spouse will inherit the first $100,000 and ½ of any balance of the estate.  MUPC § 2-102 (3) and (4)

5.  You’re not married but you have children – Your children will inherit your estate.  MUPC § 2-103(1)

6.  You’re not married and you do not have children – Your parents will inherit your property.  MUPC § 2-103(2)

7.  You’re not married and you do not have children or parents – Your siblings will inherit your estate.  MUPC § 2-103(3)

8.  You’re not married and you do not have children, parents or siblings – Your estate will then go to your “next of kin.”  MUPC § 2-103(4)

If you have any questions about the probate process or estate planning, please contact me at justin@jrmccarthy.com.

Intentional Infliction of Emotional Distress

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To establish a case based on “intentional infliction of emotional distress”, the plaintiff must prove the following:

1. The defendant intended to inflict emotional distress or he knew or should have known that emotional distress was likely to result from his conduct.

2. The defendant’s conduct was “extreme and outrageous”.

3. The defendant’s actions were the cause of the plaintiff’s distress.

4. The emotional distress sustained by the plaintiff was severe.

These standards were proposed by Massachusetts’ Supreme Judicial Court (SJC) in Agin v. Howard Johnson.

Subsequent cases show what actions may rise to the level of “extreme and outrageous” conduct.

For example, in Boyle v. Wenk, a private investigator’s incessant and harassing communications with the plaintiff (e.g., contacting her in the middle of the night and contacting her after her hospitalization) met the standard set by Agin.

Also, in Simon v. Solomon, the court found that a landlord’s refusal to repair sewage leaks at his rental property was “extreme and outrageous.”

The SJC has also ruled that a plaintiff’s claims are viable “even though no bodily harm may result” from the defendant’s actions.

Nevertheless, the plaintiff should be prepared to show at least a few of the following harms:

Mental anguish

Humiliation

Anxiety

Lost sleep

Loss of productivity

Loss of earning capacity

See George v. Jordan Marsh Co.

Finally, plaintiffs should be advised that courts are often reluctant to award damages based on intentional infliction of emotional distress.

As the SJC states in Agin,  “we believe the door to recovery should be opened but narrowly and with due caution.”

If you have questions regarding this or other potential legal claims, please feel free to contact me at justin@jrmccarthy.com.