How to Dispute a Small Claims Judgment

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Usually only defendants can appeal a judgment made by small claims court.

The procedure is outlined in M.G. L. c. 218, §23.

The law states that the defendant must make his appeal within ten days of receiving the court’s “Notice of Judgment”.

The appeal form can be found online.

In your appeal you must specify what matters of law or fact you’re disputing.

You will also need to request a trial by either a judge or jury.

The cost of filing such an appeal is usually $125.

If your appeal fails to raise any genuine legal claim, then a judge may dismiss it without a trial.

This is referred to as “summary judgment”.

If your appeal does raise valid questions about the facts or laws at issue, then it will be sent to trial.

At trial, the small claims judgment against you will be prima facie evidence of the plaintiff’s claims.

This means that the judge or jury may assume that the plaintiff has already established his case against you.

The burden is now on you to show that the plaintiff’s case is unmerited or that the small claim’s judgment was incorrect.

If you have questions about the process, be sure to read the court’s “Notice of Judgment” carefully.

It informs you of your rights and explains the appeal process.

Also look over the instructions that accompany the “Claim of Appeal” form.

And, finally, if you have further questions, feel free to contact me at justin@jrmccarthy.com

 

Last Will & Testament – Tips for Creating a Basic Estate Plan

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You should begin your will by revoking all previous wills or codicils (i.e., will amendments) that you’ve already made.

The first sentence should read as follows:

I, John Smith of Springfield, Massachusetts, being of sound mind and memory, do hereby make and declare this my last will and testament, hereby revoking all wills and codicils heretofore made by me.

Next you should appoint your personal representative.

This person will be the legal representative of your estate.

They will handle most of the legal and financial paperwork involved in the probate process.

It’s often best to appoint a personal representative who is an heir of the estate.

And it’s also a good idea to name an alternate personal representative.

Here is an example of the personal representative clause.

I appoint my wife, Jane Smith of Springfield, Massachusetts, to be the Personal Representative of this will.  If my wife is unable or unwilling to serve as Personal Representative, then I appoint my son, Matthew Smith of Springfield, Massachusetts, to be the Personal Representative of this will.

If possible, you should avoid appointing “co-personal representative”.

Having two personal representatives often doubles the amount of time it takes to probate a will.

If you fully trust your personal representative, then you should eliminate the need for a surety bond or a court license to sell your real estate.

My Personal Representative shall serve without bond or surety.  I also give my Personal Representative the power to sell real estate without license of Probate Court.

Finally, you should name your devisees.  These are the people who will inherit your property.

Most people give their entire estate to their spouse.

I give all my estate, both real and personal, to my wife Jane Smith.

If the spouse should die beforehand, then they give their estate to their children in equal shares.

For example,

If my wife has predeceased me, then I give my estate, both real and personal, in equal shares, to my children Matthew Smith and Ann Smith.

The will should be witnessed by two people who are not heirs or devisees.

All signatures should be notarized.

You should never write your own will.

What I’ve discussed here is just a general overview of a basic will.

There are technicalities to almost everyone’s estate that need to be handled by an attorney.

The slightest error drafting a will could be extremely costly when the document is submitted to probate court.

Also, if you speak to several attorneys you’re bound to find one willing to draft an estate plan for you at a reasonable price.

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

Advanced Directives Should Be Part of Every Estate Plan

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Here’s a tough question that everyone should contemplate.

If you were in a coma or vegetative state with no hope of recovery, would you want to continue living?

Or would you prefer that your life support be removed?

If it’s a tough question for you to answer, imagine how hard it would be for your family to make the decision on your behalf.

That is why everyone should have some type of “statement of desires” or “advanced directives” written down when planning an estate.

Generally, the best place to document your wishes is in your health care proxy.

This is a document that appoints someone (your “health care agent”) to make medical decisions on your behalf.

There is no simple “statement of desires” or “advanced directive” that suits everyone’s needs.

But most should contain the following provisions:

1. There should be a medical determination that there is no chance of recovery.

2. Medical staff should continue to use any medicine or treatment that is reducing your pain and suffering.

3. Finally, a clause should be added which will give your agent some discretion over the matter. For example, “this statement of desires is intended to give my Agent guidance and not to restrict or bind my Agent.”

Both your health care agent and your doctors should have a copy of the document.

And the original should be easily accessible as well.

If you have any questions regarding advanced directives or estate planning in general, please feel free to contact me at justin@jrmccarthy.com.

Lawyers and Their Phones

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Why are lawyers so bad at answering and returning phone calls?

To answer the question, I first need to explain the nature of a lawyer’s job.

People hire lawyers when things get complicated and when the stakes are high.

Almost every matter an attorney handles involves a large amount of money or, in the case of criminal law, a person’s liberty.

Furthermore, accomplishing anything through the law takes months or sometimes years.

So on a weekly or daily basis a lawyer must focus his attention on a trial, hearing or business transaction that has taken much time and effort to set up.

The slightest error could result in huge losses for his client.

When the phone rings the lawyer has to stop whatever he’s doing and shift his attention to the call.

The call may require just a few minutes.

But it could just as easily require an hour or more.

Either way, it may be a costly distraction for the lawyer.

Therefore, many attorneys will simply put off the call and respond later when they can give the caller the proper time and attention.

A Simple Solution – Email

If your attorney isn’t answering your calls, then I’d suggest using email.

Unlike phone calls, emails do not require an immediate response.

Instead, both the lawyer and the client can read and send messages when they have the time.

Also, most client questions require the lawyer to do some research before he can answer.

The email allows the lawyer to get answers for the client before he responds.

Whereas many phone calls require follow-up calls.

Regardless, your lawyer should respond to you within a day or two.

If it’s taking your attorney weeks to respond or if he isn’t responding at all, then you should consider ending the lawyer-client relationship and finding a new attorney.

If you have any questions or if you are in need of legal assistance, please feel free to contact my office: justin@jrmccarthy.com

Power of Attorney – How to Sign Deeds and Other Legal Documents

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A power of attorney (POA) authorizes someone to sign legal or financial paperwork on your behalf.

The person who creates the POA is referred to as the principal.

The person authorized to sign on the principal’s behalf is referred to as the attorney-in-fact.

Most people understand how a POA works.

However, many people (including lawyers) don’t know how to format or execute deeds signed by an attorney-in-fact.

The procedure is outlined in Massachusetts Land Court Guideline 15.

The guideline states that the deed must be “executed in the name of the principal.”

According to the guideline,

where A.B. is the principal, a deed beginning “I, C.D.,” or “I, C.D. as attorney for A.B” is an improper form as to the granting clause, and will be ineffective as the deed of the principal.  The deed should be drafted by reciting in the granting clause the principal’s name only, as though there was no power of attorney.

In addition, the attorney-in-fact should sign using the principal’s name only.

Guideline 15 gives the following example.

We’ll assume that Mary Doe is the principal and that John Doe is her attorney in fact under a power of attorney:

/s/Mary Doe

By John Doe her Attorney in Fact

under Power of Attorney,

recorded with (Registry of Deeds)

Book —-, Page —–

In this instance, John will actually sign Mary’s name.

Finally, the notary clause should state that the document is the free act and deed of the principal, not the attorney-in-fact.

However, the clause should note that the attorney-in-fact was actually the person who appeared and signed.

Here’s the Guideline’s example.

Then personally appeared the aforementioned John Doe and acknowledged the foregoing instrument to be the free act and deed of Mary Doe.

If you have any questions about signing deeds or other legal documents using a POA, please contact me at justin@jrmccarthy.com.

 

Law Professors, Write Something Useful!

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Our universities don’t produce much useful material these days.

Law review articles are no exception.

I started my law practice about eight years ago.

Every day I use legal reference materials online or in a law library.

Not once has a law review publication helped me.

There are many types of law reviews.

And they are all equally useless to the average practitioner.

Some articles are written about obscure topics such as “Space Trash”: Lessons Learned (and Ignored) from Space Law and Government Journal of Space Law Vol. 39 No. 1 2013 

Others discuss overly technical aspects of the law (e.g., The Flaws in Using the Hypothetical Monopolist Test from the “Payor Perspective” in Health Care Merger Cases  ABA Journal, Antitrust Source Vol 17 No 1.)

And many, many more focus on social justice:  The Feminist Case for the NCAA’s Recognition of Competitive Cheer as an Emerging Sport for Women, 52 B.C. L. REV. 439 or Reading the Pink Locker Room on Football Culture and Title IX, 14 WM. & MARY J. WOMEN & L. 1 .

These topics may be fascinating to law professors.

But they do no good for lawyers or for the everyday people that lawyers represent.

Similar criticism has come from the highest levels of the legal profession.

In 2011, Chief Justice John Roberts discussed law review articles at a judicial conference.

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.

If the academy wants to deal with the legal issues at a particularly abstract, philosophical level, that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.

We have nine law schools in Massachusetts.

So, if we include adjunct faculty, the state has hundreds of law professors.

Yet even some of the most basic legal questions remain untouched by academia.

Here’s an example.

Until a recent court decision, it was unclear whether Massachusetts tax liens attached to a debtor’s after-acquired real estate (i.e., a house bought after the date of the lien.)

This was an issue that concerned many attorneys and affected hundreds (possibly thousands) of Massachusetts’ residents.

Nevertheless, not a single law professor dealt with the topic.

They were too busy writing about space trash and transvestite cheerleaders.

I doubt that things will change anytime soon.

But, hopefully, someday we can return to reality.

Real Estate Liens – When Do They Expire?

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Mortgages – Mortgages expire five years after their maturity date.  If there is no maturity date on the mortgage then it will expire in 35 years.  See M.G.L. c. 260 § 33.

Writ of Attachment – These expire six years and 90 days after they are recorded at the registry of deeds.  M.G.L. c. 223 § 114A and REBA Title Standard No. 49.

Writ of Execution – These also expire six years and 90 days after they are recorded at the registry of deeds.  M.G.L. c. 236 § 49A and REBA Title Standard No. 47.

Federal Tax Liens – Such liens expire 10 years after their assessment date.  26 U.S. Code § 6502 and REBA Title Standard No. 54.

Massachusetts Tax Liens – These expire 10 years and 30 days after their assessment date.  M.G.L. c. 62C § 50(a) and REBA Title Standard No. 55.

UCC Financing Statements – A financing statement will expire five years after it is filed.  M.G.L. c 106 Art. 9 § 9-515.

Municipal Betterments or Assessments – The lien will expire 30 years after it is recorded at the registry of deeds.  M.G.L. c. 80 § 12 and REBA Title Standard No. 22.

Child Support Liens – A child support lien will expire 10 years after the lien is perfected.  M.G.L. c. 119A § 6 and REBA Title Standard No. 83.

Real Estate Tax Lien – These liens do not expire after they are recorded at the registry of deeds.  See M.G.L. c. 60 § 37A and REBA Title Standard No. 18.

Massachusetts Estate Tax Liens – A Massachusetts estate tax lien expires 10 years after the date of death, provided additional conditions are satisfied.  Refer to REBA Title Standard No. 24.

Federal Estate Tax Liens – Federal estate tax liens also expire 10 years after the date of death.  Again, additional conditions must be satisfied before the lien will expire.  See REBA Title Standard No. 3.

Extensions

Keep in mind that most liens can be extended.

A creditor can extend his lien by filing an extension in the registry of deeds before the lien expires.

Any Questions?

If you have any questions regarding real estate liens, don’t hesitate to contact me at justin@jrmccarthy.com.

Real Estate Agents – Who Needs One?

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Most real estate agents receive a 5 to 6.25% commission when they sell your home.

Their commission is deducted from the money you receive for the sale.

So if you sell your house for $200,000, the real estate agent will receive between $10,000 and $12,500.

That’s a lot of money.

And it causes many sellers to question whether using a real estate agent is really worth the expense.

Here’s my advice.

What a Real Estate Agent Does

First, you need to understand what a real estate agent does.

An agent helps you market your house.

This means pricing, advertising, and showing the home to perspective buyers.

The agent assists you in sale negotiations.

They also act as advisors during the sale process.

If you have questions about what lawyer to use or where to find a good repairman, the agent should be able to give you guidance.

Who Needs an Agent?

If you’re inexperienced with real estate, you should consider hiring an agent.

Also, if you’re too busy to market your home or deal with sale negotiations, you should think about using an agent.

Most sellers have little experience in the field or just lack the time to deal with selling their home.

So, for most people, hiring an agent makes sense.

Nevertheless, there are many sellers who can do without an agent.

Here are some examples.

The Seller Knows the Buyer

A real estate sale between two people who know each other can usually be done without an agent.

I often assist clients who are selling real estate to a neighbor, a family member or a friend.

In those scenarios, the real estate agent is usually unnecessary.

Typically the seller’s lawyer will assume some of the agent’s jobs (e.g., producing the Purchase & Sale Agreement, holding the buyer’s deposit in escrow, etc.)

The lawyer may charge a bit more for this—a few hundred dollars perhaps.

But you’ll save thousands by avoiding an agent.

The Seller Has Experience with Real Estate

People who have some experience with real estate can usually sell their property without an agent.

I recently represented a seller who had worked as a real estate paralegal.

She understood the sale process and the paperwork.

No agent was used and the sale went smoothly.

Likewise, someone who has been through the sales process two or three times will often have enough experience to manage the transaction without an agent.

Again, the seller will need the lawyer to handle some of the paperwork customarily done by the agent.

Any Questions?

If you have any questions about selling your home with or without an agent, please feel free to email my office anytime:  justin@jrmccarthy.com