Handwriting Samples Can Be Used to Authenticate Wills According to Mass. Appeals Court

Photo by Andrea Piacquadio on Pexels.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

U.S. Appeals Court: Private Student Loans Can be Discharged Through Bankruptcy

accomplishment ceremony education graduation
Photo by Pixabay on Pexels.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.

Debt Dispute Letters in Massachusetts

pexels-photo-164527.jpeg
Photo by Pixabay on Pexels.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.

Legal Fee Agreements in Massachusetts

lawyers in an office
Photo by August de Richelieu on Pexels.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

How Much Does It Cost to Buy or Sell a Home?

red toy house placed on table with pile of coins
Photo by bongkarn thanyakij on Pexels.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.

The Importance of Legal Notices

selective focus photography of a mailbox
Photo by Abstrakt Xxcellence Studios on Pexels.com

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

Appeals Court Dismisses Church Music Director’s Harassment Claims Against the Archdiocese of Boston

download (2)

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.

When Are Email and Electronic Signatures Legally Binding in Massachusetts?

black and gray digital device
Photo by Torsten Dettlaff on Pexels.com

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.

Mass. Landlords File Suit Against the State Claiming the Eviction Moratorium Is Unconstitutional

brown concrete structure under sunny sky
Photo by Brandon Nickerson on Pexels.com

Two Massachusetts landlords have filed a lawsuit against the Commonwealth and the Executive Office of Housing and Economic Development.

The lawsuit, filed on July 15 in US District Court, seeks a judgment from the court invalidating the state’s moratorium on evictions.

According to the complaint, the moratorium’s prohibition on court-ordered evictions violates the First Amendment of the Constitution by “abridging…the right of the people…to petition the Government for a redress of grievances.”

In addition, the landlords argue that the state’s ban on eviction notices infringes their right to free speech under the First Amendment.

The complaint also contends that the moratorium violates the landlords’ right to contract under Article 1, Section 10 of the Constitution and takes their private property for public use without just compensation, thereby violating the Fifth Amendment.

All rights guaranteed by the U.S. Constitution are applicable to the states through the Fourteenth Amendment.

The Texualist’s Dilemma: the Gold Standard and the U.S. Constitution

bullion gold gold bars golden
Photo by Pixabay on Pexels.com

The following is an except from my book Monetarism and the Constitution: Making Paper Money Fit the Framers’ Intent:

Judge Robert Bork, a well-known proponent for strict constitutional interpretation, stated during his Supreme Court nomination hearings that “this Nation has grown in ways that do not comport with the intentions of the people who wrote the Constitution.”  Nevertheless, Bork admitted that “it is simply too late to go back and tear…up” much of the legal precedent that has been created: “I cite to you the Legal Tender cases….Scholarship suggests that the framers intended to prohibit paper money.  Any judge who today thought he would go back to the original intent really ought to be accompanied by a guardian rather than be sitting on a bench.”[1]

800px-President_Ronald_Reagan_and_Robert_Bork
10/9/1987 President Reagan meeting with Robert Bork in the White House Residence

Judge Bork’s statements show the dilemma faced by constitutional textualists who disagree with legal tender laws.  Textualists must either concede defeat of the Constitution and work to improve what they believe is unconstitutional precedent (i.e., the Legal Tender cases) or they can stay faithful to the Constitution and advocate changes that are both impractical and unrealistic, such as eliminating paper money and returning to the gold standard.  This latter course of action, despite its seeming futility, does have its adherents.

Dr. Edwin Vieira, for instance, in his article The Forgotten Role of the Constitution in Monetary Law, asks “Why…do so many monetary reformers act as if the Constitution were irrelevant to their concerns?”  The answer, he believes, “maybe that these ‘non-constitutional’ monetary reformers consider a campaign for constitutional reform hopelessly quixotic.  Indeed, many people scoff that any variety of constitutional reform is ultimately delusive, inasmuch as modern-day politicians, legislators, judges and bureaucrats have successfully (and apparently with public approbation) set aside the original intent of the Constitution and substituted a ‘living’ Constitution.”  To Vieira, “the only delusion here is in the minds of those espousing such cynical views.”[2]  What, then, is the Doctor’s solution?

Vieira suggests that “only a few articles in prestigious journals should be necessary to establish beyond any further debate what a constitutional dollar is.  And, once established as a silver coin, the dollar cannot, without amendment of the supreme law, be redefined.”[3]

While probably no one would suggest that Dr. Vieira “ought to be accompanied by a guardian,” many would likely find his ideas a bit farfetched.  It is almost impossible to believe that a few journal articles could return this country to a commodity-based currency.  And, supposing they could, would a commodity-based currency be either feasible or desirable?  The answer is no, according the noble-prize-winning economist Milton Friedman.

800px-Portrait_of_Milton_Friedman
Milton Friedman

Dr. Friedman readily acknowledges the framers’ intent to create a commodity-based currency: “When the Constitution was enacted, the power given to Congress ‘to coin money, regulate the value thereof, and of foreign coin’ referred to a commodity money: specifying that the dollar shall mean a definite weight in grams of silver or gold.” [4] But, despite the framers’ intent, Friedman believes that today “[i]t is neither feasible nor desirable to restore a gold- or silver-coin standard.”[5]

This is because paper money, though incongruent with the Constitution, has become universally accepted as our economy’s medium of exchange.  As Friedman argues, “each person accepts [paper money] because he is confident that others will.  The pieces of paper have value because everybody thinks they have value.  Everybody thinks they have value because in his experience they have had value.”  And this acceptance is vital since “[t]he United States could not operate at more than a small fraction of its present level of productivity without a common and widely accepted medium of exchange.”[6]  Thus, pulling the rug out from under this system, as Dr. Vieira suggests, could greatly damage Americans’ confidence in their currency and could lead to irreparable economic harm.

Nevertheless, the constitutional problem still remains.  Paper money, though universally accepted and vital for the efficient exchange of goods, still violates the Constitution.  And the honest few who still value and respect the Constitution, men such as Dr. Vieira, will continue to remind us of this.  But what can be done?  How can we remedy the constitutional problems caused by paper money without hurting our economy?  To attempt to answer these questions, we must turn again to Milton Friedman.

[1] The Supreme Court of the United States Nominations 1916-1987, vol. 14 pages 292-293 (Mersky & Jacobstein)

[2] Edwin Vieira, Jr., The Forgotten Role of the Constitution in Monetary Law, 2 Tex. Rev. Law & Pol. 78, 123 (1997)

[3] Id.

[4] Milton Friedman, Free to Choose, (Harcourt, Inc., 1990), 307

[5] Id. at 308

[6] Id. at 249

Check out my book Monetarism and the Constitution: Making Paper Money Fit the Framers’ Intent available now on amazon.com.