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Legal News: Practicing Self-Defense in our later years...

As we get older, we don't like to think that our safety could be at risk. Unfortunately, self-defense for a younger person is much different than self-defense for a senior.

Every year seniors are the victim of non-violent crimes including purse snatching and larceny. Lots of criminals believe that seniors are easier targets because they are vulnerable.

This is why it is vital that you know what criminals are looking for and tactics you can use to protect yourself.

RECOMMENDATIONS FOR SELF-DEFENSE:

1) Don't overfill your arms with packages or shopping bags. Make multiple trips to your car or use a cart to help you.

2) Park your car in an area that is well lit. This will reduce the likelihood that you will be mugged at night.

3) Before leaving your car, observe your surroundings and make note of places that you could go if someone were to approach you.

4) Walk with purpose. Don't look at the ground, but instead, keep your head up.

5) Keep a flashlight (or use your flashlight on your phone) and key whistle on your keychain and keep your keys in your hand when walking.

6) Never put your purse strap around your neck and don't carry more cash than necessary in your purse. If you have a cell phone, keep it handy as well and know how to dial 911 quickly.

7) If you have to carry a wallet with you, buy a travel wallet and attach it to your waistband or wear it underneath your clothing.

8) Never open the door to your home to a stranger. Look through a window and if necessary, speak to the stranger through a window.

IF YOU ARE BEING THREATENED:

1) Dodge your assailant. If someone tries to hit you, try to move from side to side to keep them from landing a blow. If you are upright run as quickly as you can to a well-lit area or a place where other people are present such as a store.

2) Don't let a person back you into a wall or up against a big object. If this happens, it may be difficult for you to escape.

3) If an assailant grabs you from behind, try not to struggle. Instead, lean against your attacker and throw your head back as hard as you can. This will cause your attacker to stumble.

Be aware, and be prepared to defend yourself.

Legal News: Civil Practice: Temporary restraining order - Security Interest

Where a plaintiff creditor seeks a temporary restraining order and injunction against an auction house to prevent the sale of construction equipment at a price that would harm her security interest in the equipment, the motions are denied because the plaintiff failed to show either a likelihood of success on the merits or potential for irreparable harm.

"Eleanor Kerrissey ("Kerrissey' or 'plaintiff') filed a complaint against Commercial Credit Group. Inc. ("CCG") and Alex Lyon & Son Sale Managers & Auctioneers, Inc. ("Lyon & Son") (collectively 'defendants') alleging numerous violations of Massachusetts state law, including a claim for unfair and deceptive practices pursuant to M.G.I. c. 93A, for conduct related to a public auction. Plaintiff seeks injunctive and declaratory relief, as well as treble damages including costs and attorneys' fees. She alleges that defendants engaged in unfair and deceptive practices by making various misrepresentations at the auction and thus did not conduct it in a commercially reasonable manner as requested by Massachusetts law. As a result of that allegedly sham auction, plaintiff asserts that the construction equipment sold at that auction was sold at a price well below market value which harmed her security interest in that collateral. On February 7, 2019, Kerrissey filed a motion for a temporary restraining order or, in the alterative, a preliminary injuction seeking to void the public auction and enjoin the consummation of certain sales made at that auction...

"In her motion, Kerrissey requests a preliminary injunction 1) to enjoin the consummation of certain sales of heavy equipment from the auction, 2) to void the sales from the auction to the extent that payment has not already been received or that the sales were made to persons affiliated with defendants. 3) to order defendants to conduct a second auction in compliance with applicable law and/or 4) to allow plaintiff or JDHE sufficient time to pay fof the outstanding balance of the loans in exchange for a release of CCG's interest in the heavy equipment...

"In order to obtain a preliminary injunction, the moving party must establish 1) a reasonable likelihood of success on the merits, 2) the potential for irreparable harm if the injunction is withheld, 3) a favorable balance of hardships and 4) the effect on the public interest. Jean v. Mass. State Police, 492 F.3d 24, 26-27 (1st Cir. 2007). Out of these factors, the likelihood of success on the merits 'normally weighs heaviest in the decisional scales.'

"Plaintiff cites no case law in support of her state law claims and thus it is difficult to assess her likelihood of success on those claims...

"Rather, the burden is on the plaintiff to prove such a lielihood and she has failed to meet that burden...

"The second element for consideration, namely proof of irreparable harm, weighs heavily against plaintiff...

"Finally, and perhaps most importantly, plaintiff does not clearly explain why CCG or Lyon & Son would not be able to satisfy any judgment to which she may become entitled if she proves that the subject equipment was sold at a commercially unreasonable auction. For those reasons, Kerrisey has not satisfied her burden of establishing irreparable harm and thus her motion for preliminary injuction relief will be denied."

Kerrissey v. Commercial Credit Group, Inc. et al. 

 

Legal News: Real property (Title - Certificate)

Where a defendant's counterclaim in a dispute over registered land has been dismissed, the counterclaim should be stricken from the certificate of title.

"In accordance with the Order Striking Notice of Adverse Claim and Dismissing Complaint Without Prejudice issued on August 14, 2018, the Memorandum and Order Allowing in Part and Denying in Part Plaintiff's Motion to Dismiss Counterclaim and Denying Defendant's Motion to File Amended Counterclaim without Prejudice issued on October 29, 2018, and the Memorandum and Order issued today, it is

"Ordered and adjudged that the Complaint is dismissed without prejudice. It is further

"Ordered and adjudged that the Notice of Adverse Claim is struck from the Memorandum of Encumbrances for Certificate of Title 22919. It is further

"Ordered and adjudged that Count One, Three, and Four of the Counterclaim are dismissed without prejudice. It is further

"Ordered and adjudged that the Amended Counterclaim is idsmissed with prejudice. It is further

"Ordered and adjudged that the Memorandum of Lis Pendens filed with the registry district on June 26, 2018, as Document No. 00158869 and noted on the Memorandum of Encumbrances for Certificate of Title 22919, is dissolved. It is further

"Ordered and adjudged that this Judgment, or a certified copy of it, may, upon payment of all fees therefore required by law, be filed in the registry district and noted on the Memorandum of Encumbrances for Certificate of Title 22919."

Wells Fargo Bank, N.A. v. Coffin.

Legal News: Termination - Visitation

Where a Juvenile Court judge found a mother unfit to parent the youngest six of her 12 children, the portion of the order denying post termination and post adoption visitation between the mother and her daughter Jane should be vacated along with the judge's order declining to provide a specific sibling visition order.

"...The disruption of Jane's pre-adoptive placement, the lack of an identified potential pre-adoptive family, and the termination of the mother's parental rights 'are precisely the circumstances in which an order for post-termination as well as post adoption contact may be appropriate and warranted.'...'A judicial order for post-termination or post-adoption visitation with a biological parent is for the benefit of the child.' ..For these reasons the judge should reconsider whether a post-termination and post-adoption parental visitation order is in Jane's best interests due to the uncertainty of her current custodial sitatuation: the judge may take additional evidence if necessary.

"The judge should also reconsider the issue o sibling visitation...

"While a 'specific and detailed' order might well have been difficult to fashion a minimum order guaranteeing post-termination and post-adoption contact and visitation may well have been reasonable and practical, provided that the judge found it also to be in the best interests of each of the six children who were the subjects of this proceeding. There is nothing in this record to suggest that an order for post-termination and post-adoption sibling visitation would not be in the best interests of these children...To the contrary, there is strong record support for the closeness of the entire sibling group. Notably, all six children are in favor of a sibling visitation order.

"The portion of the order denying the mother's motion for post-termination and post-adoption visitation with the children is vacated as it relates to visitation between the mother and Jane, and the matter is remanded for further proceedings on this issue consistent with this memorandum and order. The order declining to provide a specific order for sibling visitation or contact is also vacated. On remand the judge should reconsider the issue of sibling visitation, making a specific finding regarding whether sibling visitation is in the best interests of each of the six children and if so, fashion at least a minimum order for sibling contact and visitation. The decrees are otherwise affirmed."

Legal News: Domestic Relations (Harassment prevention - 3 acts)

Where a harassment prevention order was entered against a defendant under G.L.c. 258E, the order should not have been issued, as there was insufficient evidence of three acts of harassment.

"The defendant...contends that the plaintiff, with whom he was once in a relationship, did not prove the necessary three or more acts of harassment...

"...We discern from the record just one act that could fairly qualify as harassment. This act occurred on October 21, 2016, when the defendant arrived at the plaintiff's home heavily intoxicated, forcing the plaintiff to call the police to remove him from the home...

"The two other incidents identified in the plaintiff's affidavit and explored at the hearing do not constitute harassment. First, the plaintiff, who was employed as a medical assistant, claimed that the defendant and his former girlfriend went to the plaintiff's workplace to file a complaint against her for sharing the girlfriend's medical information. Even if the defendant's intent was to give the plaintiff's employer reason to fire her, as alleged in the affidavit, that would not equate with an intent to cause fear, intimidation, abuse, or damage to property. At most, the motivation behind the complaint was to cause 'fear of economic loss,' which is not 'enough to make the complaint a "true threat" that may be prohibited as civil harassment.'...

"Second, the plaintiff alleged that the defendant's former girlfriend filed a similar complaint with the plaintiff's college. For the same reason, this incident did not establish the requisite intent on the part of the defendant to cause fear of physical harm or damage to property. Additionally, the plaintiff offered no evidence beyond mere speculation that the defendant or anyone acting under his direction was involved in filing the complaint..."

"We vacate the harassment prevention order and remand the matter to the District Court to direct the appropriate law enforement agencies to destroy all records of the order. See G.Lc. 258E, S9."

Legal News: Landlord and Tenant (Collateral estoppel)

A Housing Court judge dismissed on issue preclusion grounds a plaintiff property manager's summary process action against one of its tenants, the dismissal order must be reversed, as the issue in the summary process action is not identical to an issue already litigated in District Court.

"The plaintiff, property manager Forest City Residential Management, Inc., brought this summary process action against one of its tenants, Douglas Burns, seeking to evict him for 'failure to vacate pursuant to a lawful notice terminating tenancy and following expiration of the least term.'  More specifically, the notice of termination informed Burns that he had 'repeatedly engaged in ...inappropriate, derogatory and racist comments and conduct towards minority staff members...conduct that has interfered with management's ability to perform its duties and constitutes a business reason for...terminating your tenancy.' A Housing Court judge dismissed the case, concluding that 'all issues raised on the present action have been litigated in a prior matter.'

"That prior matter was a jury trial in the District Court in which the plaintiff sought unsuccessfully to terminate the lease agreement with Burns before the expiration of its term based on allegations of his racist misconduct toward the plaintiff's employees. Because we conclude that the issue in this summary process action in the Housing Court is not identifcal to the issue already litigated in the District Court, the Housing Court action is not collaterally estopped by the prior verdict. Accordingly, we vacate the order dismissing the case....

"Burns argues, with some force, that issue preclusion was properly applied because the allegations of his racially motivated misconduct were at the core of each case. While we agree that there may be significant factual ovelap in the two actions, we are not persuaded that the issues are identical for purposes of issue preclusion. In the first action the plaintiff's specific allegation was that Burns's misconduct violated paragraph nineteen of the lease agreement, which provided that occupants were not permitted to 'commit any acts of misconduct, violations of law, or otherwise engage in any activity that disturbs the peace and quiet of other Residents of the Landlord's management staff.' Paragraph nineteen further provided that such misconduct violated the lease agreement and entitled the plaintiff to terminate the lease agreement before the lease term ended.

"However, in the subsequent Housing Court action, the plaintiff sought to enforce paragraph eight of the HUD addendum to the lease agreement...which described the circumstances in which the plaintiff could terminate the tenancy after the initial lease term ended. The HUD addendum provided that the plantiff was entitled to terminate the tenancy after the intitial lease term for 'other good cuase'  including a 'business or economic reason.' In the notice of nonenewal, the plaintiff notified Burns that, based on his misconduct, 'several staff members have been made to feel uncomfortable, unsafe, and/or unable to perform their job functions...constituting a business reason for non-renewing...your tenancy at the end of the curernt (lease) term.'  Thus, the issue to be decided in the Housing Court action had to do with the impact of Burns's behavior on the plaintiff's employees and business, rather than with the behavior itself. That issue, although related, is not identifical to the issue tried in the Distict Court".

"Moreover, we  are not persuaded by Burns's argument that the DIistrict Court jury 'must have disbelieved the landlord's witnesses and believed Burns when he said that the incidents described by the landlord's witnesses did not occur.' The jury were never asked whether the plaintiff had proved that Burns engaged in the alleged racially motivated misconduct. The only question put to the jury was: 'Did Burns engage in material violations of the Lease Agreement and thus entitle the Plaintiff to termination of the tenancy?' Despite the parties' requests that the jury be instructed that the material violation alleged was the racially motivated assaults of the plaintiff's employees, the judge did not give that instruction, Instead the jury were instructed that the material violation was that Burns 'remained on the premises after the landlord properly terminated the relationship.' Thus, the District Court jury could have concluded that the racially motivated assaults occurred, but that they were not material violations of the lease agreement. Because we cannot discern from this record exactly what the jury decided regarding the issue of the alleged racially motivated assaults, we cannot conclude that the issue was necessarily decided and essential to the earlier judgement...

"For these reasons we conclude that the doctrine of issue preclusion does not foreclose the plaintiff's Housing Court action. "The order of dismissal is vacated."

Office News: 6-Step Family Estate Planning Guide

Step 1: Free Consultation and Plan

Initial consultation with Attorney to discuss your family and person situation and create a plan, going forward

Step 2: Plan Discussion and Process

While talking with the Attorney, a plan is designed based on what's important to you and your family. You take home a list of information you need to gather and given an asset information booklet to help with the process.

Step 3: Plan Deveopment

Client takes Asset Information Booklet back to Attorney and legal documents are drafted by the law firm. Paralegal calls you to verify all information. Any and all changes are made at this time.

Step 4: Plan Execution and Delivery

All planning documents are reviewed and executed with you and your family (if necessary).

Step 5: Plan Asset Transfer and Funding

Review of assets being transferred, gifted and funded. Appropriate documents are signed. Funding of Funeral Trust, financial servies are reviewed and Long-Term Care Insurance Options are reviewed in detail.

Step 6: Lifetime Communication and Updates

Regular review meetings to ensure your plan continues to work (discuss any issues at this time). Email/regular mail to client every 4 years to review will documents in case of any changes.

Legal News: 6 tips to help age with confidence

According to recent studies, when 2,000 people ages 60 & over were asked about their health, 87% of those who identified as mostly optimistic also reported being in good to excellent health. Out of those who idenified as least optimist, only 44% reported being in good health. Those who consider themselves most optimist also reported other positive health attributes such as good sleeping habits, increased confidence and overall happy feeling.

Experts recommend the following tips if you are having trouble staying on the sunny side of life:

Tip #1: Take care of yourself.

Recognize and take ownership that your health is your own responsibility to achieve the best health, set goals and take steps to meet them.

Tip #2: Befriend your doctor.

Talk to your doctor and other healthcare professionals and build a trusting relationship with them.

Tip #3: Find a purpose to get out of bed each day.

Find a purpose that makes you excited to get up each morning. Whether it be taking a walk each morning, volunteering somehwere, engaging in a class to learn something new, or something else, find something that you will enjoy that gets you excited.

Tip #4: Nurture your important relationships.

Stay socially engaged and don't isolate yourself. Nurture the close relationships you have by spending time with those that are important to you. Some 71% of the study participants recognized the importance of social engagement in their optimistic attitudes.

Tip #6: Stay physically active.

Stay active and know that physical activity is important. Find something that you like to do and that you are comfortable doing. Over 97% of survey respondents said being healthy was a motivator for staying active.

Tip #6: Be thankful. 

Practice gratitude and make it a habit to look for and appreciate the things that you are thankful for and that make you happy each day.

Knowing that optimism is linked to good health and well-being means that you need to take active steps to make positive and healthy decisions through all areas of your life. Now go put these habits into action!

Legal News: Five Rules for Inherited IRAs

Ineriting an IRA or aiming to protect your own heirs, you've got to get the IRS involved.

1) First, do no harm.

If you inherit a retirement account, don't do anything until you know exactly what rules apply. With your own IRA you can take the money out and redeposit it in another IRA within 60 days without penalty. Not so an inherited IRA. All movement of money must be from one IRA custodian to another - be sure to specify a "trustee-to-trustee" transfer. Moreover, unless you've inherited from a spouse, you must retitle the IRA, including the original owner's name and indicating it is inherited, e.g., "Daddy Warbucks, deceased, inherited IRA for the benefit of Little Orphan Annie, beneficiary."

If two or more people are named as beneficiaries, ask the custodian to split it into separate inherited IRAs. That avoids investment squabbles and allows a longer stretch-out for the younger heirs.

2. Beneficiary forms rule.

The beneficiary form on file with the custodian of an IRA controls both who inherits it and its ability to be stretched out. If people other than a spouse are named as heirs, they must begin taking distributions from the account by Dec. 31 of the year after inheriting, but they can draw these out over their own expected life spans, enjoying decades of income-tax-deferred growth in a traditional IRA or tax-free growth in a Roth IRA. To give your heirs maximum flexibility, name both primary and alternate individual beneficiaries-way, your spouse as primary and kids as alternates or your kids as primary and grandkids as alternates. Your primary beneficiary then has the option of "disclaiming" or turning down the account, enabling it to pass to the younger alternate.

By contrast, if an estate is named as beneficiary, tax defferal is cut short. If it's a Roth IRA, all funds must be withdrawn within five years. For a traditional IRA the same rule applies unless the former owner was already 70-1/2 the age at which a traditional IRA owner must begin cashing out. In that case the distribution rate for the heir is based on the age of the person who died, notes Rockville Center, NY CPA Edward Slott.

What if ther's no beneficiary form on file? Heirs are at the mercy of the IRA custodian's default policy. Vanguard Group and Ameriprise award an IRA first to a living spouse and then to the estate. Merrill Lynch sends it straight to the estate. Few custodians will pass on an IRA directly to the kids without a beneficiary form.

3. Employer plans are different.

By federal law the money in a 401(k) goes to a spouse, unless he or she has signed a form waiving rights to it. But some employer plans will allow the funds to go straight to the kids if no spouse is living and no beneficiary form is on file. On the other hand, employers usually won't let nonspouse beneficiaries stretch out 401(k) withdrawals. These beneficiaries should ask the employer to transfer the money into an inherited IRA. They can then divide it into separate inherited iras, says Natlie B. Choate, a lawyer with Nutter McClennen & Fish in Boston.

4. Spouses have more options.

A spouse who inherits-let's assume it's the wife-has an option not available to other inheritors. She can roll the assets into her own IRA and postpone distributions from a traditional IRA until she turns 70-1/2. The catch is, like other IRA owners she may have to pay a 10% early-withdrawal penalty if she takes money before age 59-1/2 from her own IRA. So a young widow should generally wait until after reaching 59-1/2 to do the rollover, says Brooklyn, NY CPA Barry C. Picker. Meanwhile, she doesn't have to take out any money until her late spouse would have turned 70-1/2.

5. Watch for distribution traps.

If the late IRA owner was 70-1/2 or older beneficiaries must make sure the owner's mandatory distribution for the year of death is withdrawn before doing anything else. When nonspouse beneficiaries take their own payouts, they should be aware of two quirks. First, if the estate paid estate tax, they may be able to take an itemized deduction to offset some IRA income. Second, the minimum is calculated differently than for your own IRA. You take the balance on Dec. 31 of the previous year and divide it by your life expectancy listed in the IRS' "single life expectancy" table, rather than the table used by IRA owners. The next year you use the same life expectancy, minus a year. (With your own IRA, you take a new life expectancy from a table each year).

Deborah L. Jacobs, a lawyer and journalist, is the author of Estate Planning Smarts: A Practical, User-Friendly, Action-Oriented Guide (DJWorking Unlimited, 2009). To learn more, visit estateplanningsmarts.com.

 

 

 

 

 

Legal News: Aretha Franklin Died Without a Will and Estate Issues Loom Large

Aretha Franklin left no will when she died at the age of 76, according to documents filed in a Michigan court, which could result in details of her personal finances being made public.

In documents filed with the Oakland County probate court, Ms. Franklin's sons - Clarence, Edward and KeCalf Franklin and Ted White Jr. - listed themselves as "interested parties." One document, signed by KeCalf Franklin, checked a box indicating that "the decedent died intestate," or without a will.

The sons also nominated Sabrina Owens, a neice of Ms. Franklin, to be the estate's personal representative, a role similar to that of an executor.

David Bennett, a lawyer representing Ms. Franklin's estate, did not respond to requests for comment.

According to Michigan law, the assets of an unmarried person who dies without a will are divided equally among their children. Ms. Franklin had been married twice, but was long since divorced. Though wills are public records in Michigan once a person has died, the document itself often an accounting of her estate proceeds.

And high-profile probate proceedings can drag on for years and lead to infighting among families, lawyers and others. Such estates can become especially complicated when it comes to issues like music rights. The case of Prince, who died two years ago and left no will, has led to numerous family disputes and even the revocation of a multimillion-dollar music deal.

Ms. Franklin was private about her finances and sometimes asked to be paid in cash.

Amanda DiChello, an estate lawyer at the firm of Cozen O'Connor in Philadelphia, said that a surprising number of celebrities and wealthy people die without a will.

"It's easier not to address it and it's always the worst result," Ms. DiChello said. "Then it costs oodles and oodles of money to handle the mess after the fact."

Ms. DiChello also noted that if Ms. Franklin had created a revocable trust for her estate, she could have kept her fances private and avoided the probate process altogether.

Ms. Franklin, who had songwriting credits on some of her hits, including "Think," "Dr. Feelgood" (Love is a Serious Business)" and "Rock Steady" was known to be private and unusually protective of her finances.

According to a 2016 profile in The New Yorker, she demanded cash before performing live, and then often kept the money in a handbag that she kept near her onstage.

In her career, Ms. Franklin - known as the Queen of Soul - won 18 Grammy Awards and had more than 100 singles on the Billboard charts.

She also sang at the inauguration of Barack Obama in 2009, and at concerts for Jimmy Crater in 1977 and Bill Clinton in 1993.