LETTER OF THE LAW
============== 1994 - 1995 ==============
The information contained in this Newsletter is a general
summary of the law in effect in Massachusetts at the time it was
written. It is not a substitute for competent legal advice from a
lawyer who has had the opportunity to review your own personal
situation. Under the rules of the Massachusetts Supreme Judicial Court
governing the conduct of lawyers, this may constitute advertising
matter. Nothing in this Newsletter is intended to imply specialization
in topic areas discussed here.
(May 1994)
Several years ago, Massachusetts implemented a new
jury
system, which makes it more likely than ever that you will be called
for jury duty and less likely that you will be exempt or excused from
service. At the same time, the regular term of trial jury service has
been reduced from one month under the old system to one day or one
trial under the new.
The old system contained a lengthy list of
exemptions,
and it
was easy to be excused from service. But that system produced juries
who did not represent a cross-section of the community. The new jury
system contains few exemptions: If you are under age 18 or, at your
option if you are over age 70; If you cannot speak and understand
English; If you cannot serve because of physical or mental disability;
If you are solely responsible for the daily care of a disabled person;
If you are outside the county and do not intend to return at any time
during the next year; If you were convicted of a felony within the past
seven years or are a defendant in a pending felony or in custody of a
correctional institution; If you have served as a juror in any court
within the previous three calendar years.
In general, if it is inconvenient for you to serve
when
called, you can usually get one postponement, for
up to one year. You may also often arrange to serve at a different
court house within the same county, if that would be more convenient.
If a trial is expected to last longer than three days, the judge will
announce that before the jury is impanelled and may excuse you from
serving on that trial. Grand jury service is usually for three months.
Accordingly, it is easier to be excused from grand jury service.
Often, you may simply sit around in the jury room
for
several
hours without being selected for a trial. Jurors awaiting assignment
are generally discharged as early in the afternoon as possible when it
is known that they will not be needed.
The law requires your employer to pay your regular
wages
for
the first three days of trial jury service. After than, you will be
paid by the state at the rate of $50. per day. If you are unemployed,
you will not be paid for service, but will be reimbursed for your
expenses. Grand juror compensation is similar but slightly more
complicated, based on your regular wages or up to $50. per day.
You may be prosecuted and fined up to $2000.00 for
failure to
appear for jury service or other violations of law. Sometimes, when the
number of no- shows starts to produce shortages of jurors, the jury
commissioner's office steps up prosecution of delinquent jurors. If
there aren't enough jurors for a case, the deputy sheriffs have the
power to grab people from off the street around the court house. This
doesn't happen often, but it did happen in Dedham not too many years
ago.
This article describes the jury selection system in
Massachusetts courts. The Federal courts continue to follow a more
traditional jury selection system. Your chances of being called for
service in a Federal jury are much less.
(May 1994)
In the case of Taylor v. Schlander,
decided 5 March 1993 by the Georgia Court of Appeals:
"Plaintiff Candace Ann Taylor and defendant Cynthia
M.
Schander were previously involved in a romantic relationship. This
lawsuit arises out of an injury plaintiff sustained on their first date
in February 1989. After spending several hours at a bar, the couple
returned to the defendant's house."
"Plaintiff was sitting on a kitchen bar stool
facing
defendant, who was also sitting on a stool ... the couple commenced
kissing. Defendant got up and sat in plaintiff's lap and the couple
resumed kissing. Because of a certain movement defendant made ... the
stool toppled and both women fell to the floor."
The plaintiff suffered a broken ankle, but lost the
case
because "the risk of falling should have been obvious."
(May 1994)
There are many lawyers in the world who do not
practice
law.
One such was the man for whom the Hubble Space Telescope was named.
After passing the bar, then spending some time as a
teacher
and as an athletic coach, Edwin Powell Hubble (1889-1953) went to the
University of Chicago and earned a doctorate in astronomy. Then, in
1919, he went to work at Mount Wilson Observatory in California. At
that time, Mount Wilson's 100- inch reflecting telescope was the
world's largest.
Hubble made discoveries which proved that what
astronomers
then called "spiral nebulae" were actually distant galaxies like our
own. He then discovered the expanding universe. The rate of the
universe's expansion is called the "Hubble Constant." The rule that
"the farther an object is from us, the faster it is receding" is known
as "Hubble's Law." And it was discovered by a lawyer.
(September 1994)
The important witness has a difficult role in any
litigation.
The subjective pressures on him or her -- whether a party or not -- can
make testifying a frightening experience. Lawyers have a difficult time
perceiving this, and that may well explain why lawyers are supposedly
among the worst witnesses.
Our role is to help you be a witness, not only on
the
subject
matter of your testimony, but also on the special problems of being a
witness. Being a witness can be a highly artificial business for which
there is no adequate background or experience. Therefore your
preparation must start from scratch.
- Take your time. Wait until the entire question
is
asked
before answering. Listen carefully to the question and think before you
speak. If you don't understand the question, say so. Don't try to
answer a question that you don't understand. If you are asked about a
document, read it before testifying about it.
- Tell the truth. Answer the question as
truthfully as
you
can, according to your best recollection of the facts and events
involved. Answer only the question that was asked. Don't ramble on or
volunteer information. When you have finished answering the question,
stop and wait for the next question. Don't be tempted to expand on your
answer just because the examiner seems to expect it.
- Don't answer what you don't know. You don't have
to
know
the answer to every question. If you can't remember an answer, say, "I
can't recall" or "I can't remember." If you don't know the answer, say,
"I don't know." These are legitimate answers to the most illegitimate
questions. You can ruin your entire case if you try to fill in gaps in
your memory, turn out to be wrong, and your statements come back later
to haunt you.
You may refer to notes to refresh your
recollection.
To do
so, you must first exhaust your recollection, then refer to your notes
to refresh your recollection, and then testify from your refreshed
recollection. You cannot simply read your testimony. Any notes that you
use to refresh your recollection may be seen by the other side and
introduced into evidence.
Try to have dates and chronology firmly fixed
in
your
mind. While no one expects you to have total recall, if you must refer
to notes too much, your credibility will suffer. One cross-examination
technique is to ask questions which skip around in time to try to get
you confused as to the order of events and dates.
But don't memorize your testimony. It will
sound
unnatural
and less believable.
- Understand the difference between knowledge,
hearsay,
and
surmise. You must never answer a question by suggesting that you know
something that you do not know. YOU DO NOT KNOW SOMETHING
YOU HAVE MERELY BEEN TOLD. Be as specific or as vague as
your memory allows, but stick to your true recollection. If you can
only approximate dates, times, and distances, give your best
approximation. Do not guess.
You only know what you personally saw, heard,
or
did.
Usually, you cannot testify to what others know or to conclusions,
opinions, and speculations. You cannot tell what was in someone else's
mind. You cannot tell if a person was angry, for example, but you can
testify that the person ACTED angry, shouted in
an angry tone, turned red in the face, jumped up and down, etc. You
cannot testify to other people's motivations, but you can testify to
what they said was their motivation.
Don't testify about your own state of mind
unless
you are
specifically asked about it. Don't explain your thought processes
unless asked. In testifying on conversations, make it clear whether you
are paraphrasing or quoting directly.
- Every witness makes mistakes. These are normal,
and
you
should not become flustered. You should, however, correct errors as
soon as possible. Some witnesses try to defend their error. This cannot
be done successfully. Don't collapse if you are caught in an
inconsistency. Don't tie yourself in knots trying to cover up some slip
of speech or memory, and don't try to correct an error by building a
story around it. If a later question doesn't give you the opportunity
to correct an error, take advantage of the next recess to confer with
us, so that we can give you the opportunity to correct the error.
Every witness also thinks of things she or he
should
have
said after the testimony is over. Accept it. There's no going back to
add to your testimony. Don't expect to testify without the other side
scoring a few points.
- Speak clearly and loudly so that the judge,
counsel,
stenographer, and the last juror can easily hear you. Keep your hands
away from your mouth or face. Never nod your head to indicate "Yes" or
"No." The tape or stenographer won't pick up gestures.
- Give positive, clear, and direct answers to
every
question
whenever possible. Answer the questions with the words you normally use
and feel comfortable with. Don't use someone else's vocabulary, "police
talk," or other stilted speech.
- Avoid adjectives and superlatives. Avoid
mannerisms
of
speech. A habit such as prefacing your replies with something like "I
can truthfully say..." may cast unwarranted doubts on your whole
testimony.
- Avoid attempts at levity. Avoid even the mildest
obscenity.
Avoid absolutely any ethnic slurs or references which could be
considered derogatory. Avoid all nasty or snide remarks about opposing
parties, witnesses, or attorneys.
- Be serious and polite at all times. Do not
exaggerate
the
facts, and do not understate them. Don't give cute or clever answers.
Never argue with the lawyers or the judge. Never lose your temper. The
lawyer on cross- examination may try to get you to argue or to lose
your temper. Resist these temptations.
- Remember that the fact-finder (judge, jury, or
hearing
examiner) is your primary audience. Face the fact-finder when
testifying and try to get and maintain some eye-contact. Don't look at
the judge or lawyer for help on difficult questions.
- When addressing the judge, use "Your Honor." A
hearing
examiner is "Mr. Examiner" or "Madam Examiner." Address attorneys as
"Mr." or "Ms." and the last name.
- When an attorney objects or the judge or hearing
officer
interrupts, stop immediately until the judge or hearing examiner makes
a ruling. If the objection is overruled, you may answer the question.
If the objection is sustained, simply wait for the next question. Never
try to squeeze an answer in when an objection has been made.
- If the examining counsel interrupts you, let
counsel
finish
the interruption, and then firmly but courteously state that you had
not finished your answer to the previous question.
- If your attorney objects to a question, listen
to the
objection very carefully.
- There are two ways to cross-examine: friendly
and
hostile.
The hostile approach, while popular on television, is generally the
mark of an inexperienced attorney. If opposing counsel is hostile and
badgering, remain calm and polite. Don't let anyone rile you into
arguments over trivial points or even important ones. Be firm, but
flexible. Take solace in the fact that a hostile cross-examiner is
probably hurting his or her case by annoying the judge and jury and
making them sympathetic to you.
It is more likely that the cross-examiner will
adopt
a
friendly or neutral approach. Remember that no matter how friendly
opposing counsel may seem, he or she is your adversary.
- Don't assist or argue with the cross-examiner.
It is
counsel's job to ask a question so that it can be intelligently
answered. It is our role to argue if necessary, but never yours. Unless
instructed by us to the contrary, you should answer as best you can all
questions that you understand. You should ask that a question be
repeated or rephrased until you understand it. Do not ask counsel any
questions, and do not state, unless asked, the reason you need to have
the question rephrased. Do not assist opposing counsel.
Cross-examination is the adversary's inning, and it is no part of your
burden to make any points. You are there to answer questions and
nothing more. Your general attitude should be as if you were a
by-stander with no interest in the outcome.
Never express anger with opposing counsel. Be
frank
and
fair, neither too anxious to please nor too eager to fight. Try to seem
as friendly and helpful to opposing counsel as you are with your own
attorney.
Don't try to be a "Smart" witness. If counsel
is
obviously
giving you a chance for a wisecrack, avoid it like the plague. It's the
anesthetic before the knife.
- Don't let counsel put words in your mouth.
Listen
carefully
to the question, and be wary of adopting the cross-examiner's
terminology. We all tend to be careless about language at times, but
testimony is a time for care in word usage.
Don't adopt a cross-examiner's summary of your
prior
testimony. When they say, "I believe you testified earlier that...,"
that may not be exactly what you said.
If counsel is trying to jump around in time,
make
sure
that you listen to each question and know its time-frame before you
answer.
Listen closely to any question that begins, "Do
you
want
this jury to understand...?" If you don't want the jury to understand
it that way, make clear what you do want them to understand.
Do not answer a compound question unless you
are
certain
that you have all parts of it in your mind. Pay particular attention to
introductory clauses which may precede the actual question.
If counsel asks, "Are you as positive about
this as
the
rest of your testimony?" stop! Are you?
- Here's how to answer "yes or no" questions. If
you
can
fairly answer a question "yes" or "no" without explanation, you must do
so. If you can't fairly answer "yes" or "no," say so and explain your
answer.
- Don't look at your attorney during cross
examination.
You
may just be nervous, but it will look like you're looking for help with
the answers.
- And finally, don't get tripped up by questions
like
"Did
you ever discuss your testimony with anyone?" Of course you did, and if
asked, name the people. This is merely an attempt to get you rattled or
trick you into looking less believable. There is nothing wrong with
discussing testimony with your attorney or anyone else. And if opposing
counsel is foolish enough to ask what we told you to say, just reply
that we told you to tell the truth.
(September 1994)
Over 20 percent of all complaints to the Federal
Trade
Commission since 1990 have been about credit bureaus. According to a
survey by the US Public Interest Research Group, 61 percent of the
consumers complaining were denied credit, housing, or jobs, because of
errors in their reports. It is easy for your file to get confused with
that of another person with a similar name. It is not unknown for an
unscrupulous merchant or landlord to make an unjust adverse report.
Before you plan to make a major purchase, it is a
good
idea to
check your credit report first. You actually have not one but three
credit records, since there are the three national credit bureaus: TRW,
Equifax, and Trans Union.
TRW will send you one free credit report annually.
You
must
make the request in writing, giving the following information:
- Your first name, middle initial, last name, and,
if
appropriate, any indication of generation (Senior, Junior, Third,
etc.);
- Your current home address and previous addresses
for
the
last five years, including zip codes. You must verify your identity by
enclosing a photocopy of a utility bill, driver's license, or billing
statement;
- Your spouse's first name;
- Your Social Security number;
- The year you were born.
Sign your request and mail it to TRW, PO Box 2350,
Chatsworth,
CA 91313-2350. If you find errors, call TRW at 800/682-7654 to resolve
the dispute.
Equifax and Trans Union will only give you a free
copy
of your
credit record with them if you have already been denied credit.
Otherwise, they will charge about $8.00 for it. Their phone numbers:
Equifax 800/685-1111 Trans Union 800/851-2674.
There is some good news. With a new computer
system, the
three
credit bureaus will soon be able to share correction information and
make corrections in a few days, rather than a few weeks.
JANUARY 2013 NOTE: It's now a lot easier to check
your credit
report. Just go online to AnnualCreditReport.com,
a free
one-stop site to get your free annual credit reports from all three
reporting agencies.
(April 1994)
We've all seen the stories in the news about
families
who have
to go through several court levels in order to get the doctors to turn
off life support for a terminally ill and unconscious relative. More
and more people want to providing in advance for such eventualities.
The legal system's first attempt to deal with this
issue
was
the living will. This is a document in which you tell your doctors and
family what sort of medical treatments you want and don't want in
certain circumstances.
A living will is useless if it doesn't cover the
circumstances
that actually occur. That encourages lengthy and legalistic drafting.
But doctors faced with a lengthy legal document often refuse to act
without consulting the hospital's attorneys -- the last thing you want
in a medical emergency.
The currently preferred approach is the health care
proxy,
which is authorized in Massachusetts by legislation which took effect
in December 1990. Under this new law, by properly executing a health
care proxy, you can appoint a "health care agent," who will have power
to make health care decisions for you should you be unable to make or
communicate those decisions.
A health care proxy must be in writing and signed
by you
or by
someone else at your direction, before two witnesses. The witnesses
must attest that you are at least 18 years old, of sound mind, and
under no constraint or undue influence. The health care agent cannot
serve as a witness. No one associated with a nursing home or a hospital
where you are a resident or a patient may be appointed as health care
agent unless related to you.
Unless you specify limits in the proxy document, a
health care
agent is authorized to make all decisions involving your health care
that you could make if able to do so. This includes decisions on
administering or withholding life-sustaining treatment.
The law does not allow "suicide or mercy killing"
or any
"affirmative or deliberate act to end one's own life," nor does it
prevent any medical procedure which the attending physician determines
is necessary "to provide comfort, care or pain alleviation."
A health care agent may act when the attending
physician
determines, in writing, that you lack the capacity to make or to
communicate health care decisions. The agent's authority will end if
the attending physician later determines that you have regained
capacity.
You may also name an alternate health care agent,
who
may act
if the first agent is unavailable or unable to act. The law also allows
you to revoke a health care proxy. A new health care proxy
automatically revokes a prior one. If you name your spouse as a health
care agent, a divorce or legal separation will automatically terminate
that person's authority to act.
We have developed a simple health care proxy form
and
encourage clients to come to us for this service.
(April 1995)
If you had an account in a failed bank, you must
make a
claim
promptly in order to avoid forfeiting your deposit. Telephone calls to
the bank do not satisfy this requirement, nor does updating the
interest earned on a passbook savings account. Within 18 months of the
failure, you should do one of the following:
(April 1995)
Some married women who file joint tax returns and
were
self-employed under their maiden names may not have had their earnings
recorded correctly to get social security credits. The IRS has
corrected the problem for current returns, but earnings for past years
of self-employment may not appear on some women's earnings statements.
To get an earnings statement, call Social Security
and
ask for
Form SSA-7004. After you fill out the form and return it to Social
Security, you will get a copy of your earnings statement, on which you
can identify errors and get them corrected.
Copyright © 1995 A. Joseph Ross, J.D.
(April 1995)
According to a recent decision of the United
States
Supreme
Court, if you are talking over a cordless phone, the answer is no.
The Supreme Court ruled that police may eavesdrop
on
cordless
telephone conversations without first getting a search warrant. Because
cordless phones are not private, the Court ruled that there is no
reasonable expectation of privacy in those who use them.
Cordless phones operate at frequencies that can be
picked up
by anyone with a police scanner. In addition, as many cordless phone
users know, your conversations can often be picked up inadvertently by
other cordless phones nearby.
Cellular phones also operate within the frequency
range
of
many scanners. The Electronic Communications Privacy Act of 1986
(ECPA), passed in response to lobbying by the cellular phone industry,
makes it a Federal offense to eavesdrop on cellular phone calls, and
newly-manufactured scanners are required to exclude those frequencies.
By an amendment to the ECPA passed last year, the law now also
prohibits listening to cordless telephones.
Many scanners can still be modified easily by
electronics
buffs to receive cellular frequencies. Hobbyist magazines frequently
contain specific instructions on restoring cellular frequencies on
various popular models. There is no requirement that new scanners
exclude cordless phone frequencies. The ECPA is nearly impossible to
enforce against people listening in private.
Most of us have a tendency to think that our phone
conversations are private, even when we are knowingly using devices
which broadcast radio signals. Some couples have been heard to say some
of the most incredibly private things in the baby's room, in front of a
live baby monitor microphone!
This has also important ramifications when you are
having a
confidential conversation with your attorney. Make sure that you are
aware of when your phone calls are not private. You have a right to ask
whether your attorney is using a cordless or a cellular phone when you
call (We never do.). If you have private business to discuss, be sure
to use a hard-wired phone when you call your attorney. If you do call
on a cellular or cordless phone, tell your attorney, so that he or she
can avoid discussing your private affairs when they may be overheard.
MARCH 2010 NOTE: Nowadays, cellphones are all
digital
and so are newer digital phones. This article still applies to any
older analog phones still in use.
(April 1995)
Changes in banking rules in recent years mean that
there are
more and more ways that you can lose to your bank the money that you
deposit in your account.
Most obvious is the increasing number of service
charges,
particularly on small accounts. Until recently, service charges on
savings accounts were unheard of. Now, on many small accounts, the
monthly service charge exceeds the interest earned. Your money is more
secure under the mattress than in this type of account.
Another problem is back-up withholding of taxes.
Back-up
withholding is when your bank withholds federal taxes from interest
earned on your account. It is only supposed to be done in certain
narrowly defined circumstances, when the IRS has had past problems
collecting your taxes. When you open an account, your bank is supposed
to give you a form to sign giving your social security number and
certifying that you are not subject to back-up withholding.
But some banks may take several months before
entering
your
account in their computer as one to which withholding doesn't apply.
Meanwhile, they keep withholding taxes from your account. It can take
many months of arguing with bank personnel before the withheld money
gets returned. The amount is small for each account, and you get credit
for it when you do your taxes next year. But for all the accounts to
which this applies, it no doubt increases the bank's cash flow at your
expense.
We once ran into a variation of this problem when
we
kept some
clients' escrow accounts in a small bank. Then our small bank was taken
over by a larger bank. As soon as the accounts were converted into the
new bank's system, income taxes were withheld, even though the bank's
statements indicated that they had our clients' social security
numbers. We had to fill out forms several times, over several months,
and complain repeatedly before the withholding stopped and the money
was re-credited. Needless to say, we removed those accounts from that
bank as quickly as we could!
The banking system especially costs you money when
you
bounce
a check. Most banks now charge about $20.00 to a customer who writes a
check which bounces. This is far more than the bounce costs the bank to
process, but banks justify this charge by saying they want to deter you
from bouncing checks.
Fair enough. But it is much harder to avoid a
check
bounce
than it once was. It used to be that if you kept your checkbook record
properly and did your statements regularly, the balance in your
checkbook would give you a clear picture of how much money you had to
spend. Now, with ATMs, direct deposits, automatic payments, and
proliferating bank service charges, you can no longer be sure of how
much money is in your account.
As if that weren't bad enough, the way bounced
checks
are
handled has changed. It used to be that when you bounced a check, you
got a notice from your bank before the payee of the check got the check
back. You had time to fix the problem and to call the payee and smooth
things over. You could then tell the payee to put the check through
again, and it would clear.
That's no longer what happens. Now, the banking
system
automatically puts a bounced check through a second time, before you
even know there is a problem. This means the check will probably bounce
a second time, with another $20 charge. When the payee finally gets the
check back, it will have bounced twice and will be marked "Do Not
Re-Deposit." The payee will be angrier with you and may insist on being
paid with certified funds. Some payees, especially government agencies,
may impose additional charges of their own for the bounce.
How can you protect yourself from our new banking
system? Here
are some suggestions:
We used to think of banks as a safe and secure
place to
put
our money. In recent years, banks have found increasing ways to take
our money for themselves. It is up to you to protect your money in
today's banking system.
(December 1995)
In April 1994, a new law regarding lead paint went
into
effect
in Massachusetts. One of the sleeper provisions in this new law is a
new notice requirement for landlords of all residential property built
before 1978.
Effective 1 September 1995, landlords must provide
all
prospective tenants with an official notice outlining the hazards of
lead poisoning. The notice must be given on a form prepared by the
state Department of Public Health. The landlord must enclose with the
form a copy of the most recent lead inspection report for the unit if
there has been one, a letter of "interim control" if intermediate steps
are being taken to control the leak paint, or a letter of compliance
indicating that any necessary de-leading measures have been taken.
Tenants must sign a statement certifying that they have received these
materials.
Between 1 December 1995 and 1 December 1996,
landlords
must
also provide these materials to all existing tenants. The notice is
required whether or not the tenants have children under the age of 6.
Tenant notification forms can be obtained free of charge from the state
Department of Public Health. We also have forms available for our
clients.
The tenant notification can also be included in a
written
lease and has been incorporated into the latest edition of the Greater
Boston Real Estate Board Rental Housing Association's standard form
lease.
This notification requirement parallels the tenant
notification requirements under Title X, a comprehensive federal lead
poisoning prevention law signed by President Bush in 1992.
Any owner who fails to comply with these
provisions
will be
liable for all damages caused by the failure to comply and is subject
to assessment of a penalty of up to one thousand dollars. A violation
by any person engaged in trade or commerce is also considered an unfair
and deceptive act or practice under the consumer protection law, giving
rise to potential liability for treble damages plus attorneys fees.
Sending notice to a tenant is not considered an
admission of
liability to any claim for lead poisoning, but the fact that a tenant
has received a lead paint notice does not bar any claim.
(December 1995)
We've recently heard that some movers have been
demanding cash
payments for their services as soon as they've finished moving you into
your new home. Whether they can do this depends on whether or not they
have given you fair warning that they require this.
If a mover warns you when you call them that they
will
expect
payment in cash, that can be considered to be part of the contract, and
your agreeing to hire them can constitute your agreement to pay them in
this way.
But we've heard of movers who put the requirement
of
cash
payment into the fine print of a contract form, but don't tell you that
they want cash until they've finished the move. Then, they may pressure
you to go down to an ATM right now to get the cash for them. Burying
the requirement in the fine print of a contract is not adequate
warning, and they may be liable under the state Consumer Protection Law
for failing to disclose this to you in advance.
After the movers have moved you into your new
home,
they have
very little leverage to enforce any requirement for payment in cash.
They can't very well move you back into your old place. If they call
the police, the police will most likely tell them that it is a civil
matter and they must take you to court. So long as you offer a check
(and the check is good), there is, as a practical matter, nothing the
movers can do but take it or leave it. if they refuse your check and
take you to small claims court, you can go to court and offer the same
check. The court will probably be upset with the mover for wasting
their time.
(December 1995)
We've all heard of obnoxious tactics on the part
of
some
bill-collectors. Under the Federal Fair Debt Collection Practices Act,
a bill collector is prohibited from:
In a debt collector's first contact with you, the
collector is
required to notify you that if you dispute the debt, you must notify
them within thirty days or they will assume the debt is valid. If you
notify the debt collector in writing within the thirty day period that
you dispute all or part of the debt, they must obtain verification for
you and mail you a copy of the verification or a court judgment.
If you so request within the thirty-day period,
they
must
provide you with the name and address of the original creditor if it is
different from the current creditor. This may be important if the
original creditor has assigned the debt to the collection agency.
The debt collector must also notify you if they
intend
to
bring suit against you before the thirty-day period has expired and
that they are attempting to collect a debt, and any information they
obtain will be used for that purpose.
Consumer protection regulations adopted by the
Massachusetts
Attorney General contain many similar restrictions on debt collectors
and require that debt collectors notify you of your right to request,
orally or in writing, that telephone calls regarding your debt not be
made to you at your place of employment. An oral request will be valid
for only ten days unless you provide written confirmation within seven
days.
(December 1995)
If you own your home, the law gives you an
important
tool to
protect it from being taken by creditors in a sheriff's sale. Any
homeowner can obtain this protection by recording a Declaration of
Homestead in the Registry of Deeds where your title is recorded. You
can also obtain homestead protection by words written into the deed
when you first buy your home. A "manufactured home" (what used to be
called a "mobile home") can be protected by filing a declaration in the
city or town clerk's office where the home is located.
A homestead estate protects the first $100,000 of
your
equity
from attachment, levy, and sale for payment of debts. But there are
certain debts that can override homestead protection. These include a
sale for unpaid taxes; a debt contracted before you declared a
homestead estate or any previously existing mortgage, lien, or
encumbrance; a debt, such as a mortgage, contracted for the purchase of
the home; and unpaid alimony or child support.
An elderly or disabled person can obtain greater
homestead
protection, for $200,000 worth of equity, by filing a special elderly
or disabled person's homestead declaration. An elderly person is
defined in the law as a person 62 years of age or older. A disabled
person is defined in terms of the requirements of federal law for
Supplemental Security Income. Documentation of the disability must be
filed with the disabled person's declaration of homestead protection.
The exemptions from an elderly or disabled
person's
homestead
protection are similar to those from a regular homestead. The principal
difference is that any first or second mortgage debt is exempt from an
elderly or disabled person's homestead protection. An elderly or
disabled person's homestead can only apply to that person's principal
residence.
An estate of homestead which exists at your death
can
continue
and protect your surviving spouse and minor children until your spouse
remarries or dies and until the youngest unmarried child reaches the
age of 18.
Under prior versions of the homestead legislation,
it
used to
be unclear whether an unmarried person or person who owned property
jointly could acquire a homestead estate. Now, it is clear that a
homestead estate may be acquired by one or more owners, regardless of
marital status, or one or all who rightfully possess the premises. But
only one owner can obtain homestead protection for the benefit of his
or her family, and on only one principal residence. A declaration of a
new homestead estate discharges any previous homestead estate of that
person.
In these difficult times, a homestead estate
provides
important protections against your creditors. It is something that you
should discuss with your attorney whenever you purchase a home or
review your estate plan.
(December 1995)
Before he entered politics, Abraham Lincoln was a
successful
attorney in Illinois. Many stories are told of his days in law
practice. One such story began when McLean County, Illinois decided to
impose a property tax on the Illinois Central Railroad's right of way
in the county. The tax itself wasn't great -- only $428.56. But the
railroad feared the financial burden that might result if every county
that its tracks passed through imposed a similar tax. So they decided
to challenge the county's right to impose the tax. After losing in the
lower court, they hired Abraham Lincoln to take the case to the
Illinois Supreme Court. In 1856, Lincoln won a decision in the
railroad's favor.
But The railroad's gratitude was short-lived. It
lasted
only
until they received Lincoln's bill. It was for $5,000, at the time an
unheard-of fee. It was four times the salary of the Chief Justice of
the Illinois Supreme Court.
The railroad refused to pay it, and Lincoln took
them
to
court. Where before, he had been a polished lawyer arguing a complex
tax case before the state's Supreme Court, he now presented himself as
the poor prairie lawyer who had been cheated by the big railroad.
Before a jury of frontiersmen, he was at his most folksy, even popping
a button on his suspenders during his summation to the jury and
whittling a peg to hold them.
Lincoln won and the railroad paid. They even hired
him
again.
He used the money to finance his campaign against Stephen A.
Douglas. His free railroad pass didn't hurt, either.
Source: Doug Storer, Amazing but True Stories
about
Presidents, Pocket Books, 1975.
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