Legal News: OUI in Parking Lot

Where a defendant has been convicted of operating under the influence of intoxicating liquor, G.L.c. 90, S24(1)(a)(1), and negligent operation of a motor vehicle, G.L.c 90, S24(2)(a), the convictions should be affirmed because (1) a resort parking lot on which the defendant was driving constituted a "public way or place" and (2) the evidence of the defendant's physical characteristics, belligerent behavior and erratic driving was sufficient to show the defendant's impairment and negligent operation.

"...We conclude that a parking lot that members of the public may use to visit a restaurant, bar, shop, and beach, all open to the public, is a public way or place...

"The Sea Crest Beach Hotel is a resort in North Falmouth consisting of nine buildings, including a hotel, a restaurant, a bar, a retail shop, and a public beach. The restaurant, bar, shop, and beach are open to the public...

"To prove either the crime of operating under the influenene or negligent operation, the Commonwealth must prove that the defendant operated a motor vehicle upon a public way or place...

"Here, the facts viewed in the light most favorable to the Commonwealth established a public place, because members of the public were permitted to access the parking lot. The evidence established that members of the public who were not staying at the hotel were permitted to use the parking lot to visit the restaurant, bar, shop, or beach. At the time of the incident, the restaurant and bar were opened to the public...

"The existence of a gatehouse does not negate the public nature of the parking lot. The gatehouse was unattended at the time of the incident, but even an attended gatehouse would not make a parking lot nun-public where, as here, members of the public are routinely permitted to drive by the gatehouse and park in the the parking lot.

"At the time of the incident, the signs restricting parking to hotel guests and beach club membes were not on display. At night, the availability of parking was not an issue and thus there were no restrictions. In any event, the defendant's focus on parking is misplaced. A public place is not a place the public is allowed to park, but rather a place that the public is allowed to travel. So long as the public is allowed to access the place, even merely to drop off a passenger, it is a public place...

"As in (Commonwealth v. Brown, 51 Mass. App. Ct. 702 (2001), the parking lot of the Sea Crest Hotel was similarly accessible to members of the public wishing to use the parking lot to visit the restaurant, bar, shop, or beach. No restriictive signage indicated that the property was closed to the public at the time of the incident. Moreover, the signs placed during the day on busy weekends restricted only parking, not access. Accordingly, the trial judge heard sufficient evidence to reasonably conclude that the parking lot in which the defendant drove was a public place."


Legal News: Trustee Can't Sue Lawyer on Behalf of Bankruptcy Estate

A Chapter 7 trustee could not bring a malpractice claim on a bankruptcy estate's behalf against an attorney who allegedly advised the debtor pre-petition to thwart a creditor by fraudulently transferring property into trust, a US Bankruptcy Court judge has ruled.

After debtor Steven Lloyd filed for bankdruptcy, trustee Anne J. White of Boston brought an adversary claim to recover the property for the estate.

When White sought to recoup  additional funds for the estate via a legal malpractice claim against the defendant, attorney Michael T. Gaffney, he countered that no claim had accrued as of the time of Lloyd's petition.

Accordingly, the defendant argued, the trustee lacked standing to bring the claim.

Judge Elizabeth D. Katz agreed rejecting the trustee's argument that the US Supreme  Court's 1966 Segal v. Rochelle decision should guide her decision. Segal found that claims sufficiently rooted in a debtor's pre-bankruptcy past and not entangle with the debtor's ability to make a fresh start are property of the bankruptcy estate.

"The Supreme Court...has not cited to Segal at all following the enactment of the Bankruptcy Code. In contrast, in interpreting provisions of the Bankruptcy Code, the Court has continued to cite to (its1979 Butner v. US decision) in reiterating that "Congress has generally left the determination of property rights in the assets of a bunkrupt's estate to state laws," Katz wrote, adding that under Massachusetts law, the operative question is whether the debtor suffered pre-petition harm.

"The Trustee asserts that the malpractice claims arose prepetition based on the Debor's 'exposure' to possible prepetition fraudulent transfer claims and in light of the Debtor's awaremenss of potential 'issues' with the transfer of the ... property," Katz continued, dismissing the complaint.

"However, the Trustee has not indicated any actual prepetition harm to the Debtor that would have resulted in the accrual of the claims alleged in the complaint."

Gaffney's attorney, Avana Anderson of Boston, declined to comment and White, the trustee, could not be reached for comment prior to deadline.

Charles P. Kazarian, Boston, "The court's whole thing about what the debtor knew (at the time he filed his petition) really isn't relevant. It's what he should have known."

Legal News: 5 Money Saving Apps on Travel....

Did you know that there are apps available that can help you find the best bargains? To save you time and money, consider leveraging the following technology BEFORE setting out on your next getaway:

(1) Travelzoo

Before you go see your travel agent, check out the prices on Travelzoo. Simply type where you want to go. Whether it is a trip to the beach, a European tour, or a road trip, you will receive notifications telling you of any price drops on flights, cruises, hotels and more. The app will also identify when you are visiting a new location and provide entertainment and restaurant deals for the area that you are visiting.


This website is the longest running hotel booking service and has been around for a quarter of a century. It is now available as an app that offers a clean interface. Uber integration, loyalty and rewards program, and maps.

(3) GasBuddy

If you are planning to hit the road, this app can sniff out the best deals for gas and diesel in Canada and the US. The app will use your location to show which stations near you have the best prices and provide you a map if you don't know the area. It also offers the option to view amenities at the stations such as restaurants, restrooms and car washes.

(4) Waze

Another way to save money on a road trip is to not get lost. Waze is owned by Google and has a stellar map to assist drivers. You will get real-time info regarding the roads near you that includes info about accidents, congestion, speed traps and construction zones.

(5) Tripit

This app helps you create and organize an itinerary. You can forward all of your confirmation emails to Tripit, such as hotels, flights, car rentals, and more and the service will organize all of your info into a detailed summary that includes maps, confirmation codes and more.

No matter which route you take, traveling at this time of year offers some of the best deals and fall views. Take the time to enjoy this special time of year.

Legal News: Modification - Parenting Time

Where a judge modified the parenting time provisions of a divorce judgement, a remand is necessary because it is unclear whether the judge found modification justified by a substantial change in circumstanes of the parties or their child.

"...As most relevant here, the judge ordered that (1) "efective immediatley, the father's parenting time shall be alternate weekends from Friday at 4:00 P.M. until Sunday at 6:00 P.M. and in the event Monday is a holiday or there is otherwise no school on Monday, the father's parenting time shall be extended until Monday at 6:00 P.M. and (2) the father's vacation time...shall take place when school is not in session.' The father argues on appeal that the judge erred by ordering these and other modifications without finding a substantial change of circumstances to warrant them.

"The issue is goverened by G.L.c. 209C, S20, which provides that 'no modification concerning custody or visitation shall be granted unless the court finds that a substantial change in the circumstances of the parties or the child has occurred and finds modification to be in the child's best interests.' As this language makes clear, a finding of a substantial change of circumstances is a statutory prerequisite to modifying a custody or visitation order...

"Here, because of internal inconsistencies in the judge's rationale, it is unclear whether she found modification justified by a substantial change in circumstances of the parties or the child. On the one hand, the judge stated that 'neither party has demonstrated a substantial change in the circumstances of either the parties or the child.' But on the other, the judge plainly identified the evidentiary basis for each of the modifications she ordered. In particular, with respect to the two modifications identified above, the judge found them warranted by evidence that, since the judgement of paternity entered, the child had been diagnosed with autism spectrum disorder and was put on an individualized education plan, entitling him to free preschool services. The judge further found it would be in the child's best interests to be attending preschool full time. 

"This evidence could reasonbly support a finding of a substantial change in circumstances justifying modification of the parenting schedule. We cannot determine, however, whether such a finding is implicit in the judge's rationale. Thus, remand for clarification is necessary on this issue...

"Paragraphs 1,3 and 4 of the amended judgement of modifcation dated January 12, 2018 are vacated and the matter is remanded for further proceedings consistent with the memorandum and order. Pending further order, the parenting schedule established in the April 24, 2015, judgement of paternity shall remain in effect. The remainder of the amended judgement of modification dated January 12, 2018, is affirmed,. The judgement dated November 28, 2017, on the complaint for contempt is affirmed."

Legal News: Power of Attorney

Where a plaintiff borrower has alleged that a foreclosure was unlawful under G.L.c. 183, the defendants' lack of a power of attorney did not render the foreclosure invalid. 

Accordingly, the defendants will be awarded summary judgment.

"Plaintiff Josephine Donahue ("Donahue") has filed this lawsuit against Defendants Federal National Mortgage Association and Ocwen Loan Servicing, LLD ("Ocwen") (collectively, "Defendants") alleging violations of Mass. Gen. L. c. 183, S32 and Mass. Gen. L. 183, S4 (Count I), breach of the duty of good faith and reasonable dilligence (Count II) and breach of contract and the covenant of good faith and fair dealing (Count III). ...

"Donahue asserts that the foreclosure of the Property was unlawful under Mass. Gen. L.c. 183 S32 and Mass. Gen. L. 183, S41 because Defendants lacked a Power of Attorney ('POA') from Ginnie Mae...

"Even assuming there is a private right of action under the statutes which Ocwen contests, the record does not reflect that Ocwen executed a conveyance of the Property on behalf of another entity, such that Ocwen required a POA from Ginnie Mae or any other entity to foreclose...the Court, therefore, holds that Ocwen is entitled to summary judgment on Count I. ..."Donahue also alleges a breach of the duty of good faith and reasonable diligence based on Defendants' failure to comply with 24 CFR S 203.604(b). Although Donahue bases this claim on the lack of a face-to-face meeting, "the mortgage's duty of good faith and reasonable diligence is focused on its conduct of the foreclosure sale". Donahue's claim regarding the lack of a face-to-face meeting one year before the foreclosure sale, therefore, does not give rise to the claim that she alleges in Count II for a breach of the duty of good faith and reasonable diligence.

"Specifically, Donahue does not address Ocwen's conduct at the foreclosure sale under Count II of the complaint or connect it to the duty of good faith and reasonable diligence in her pleading. In her opposition to summary judgment, however, Donahue asserts that Ocwen's conduct at the sale caused her damages because Ocwen paid less than market value for the Property at the foreclosure sale...To the extent Donahue is indirectly invoking the price Ocwen paid for the Property as a breach of the duty of good faith and reasonable diligence, this claim, too, must fail...

"Donahue alleges the Defendants breached the contract between the parties by failing to comply with Paragaph 9(d) of the Mortgage...

"Here, the record reflects that Ocwen sent at least the February 2016 letter by providing a copy of the letter, a USPS tracking number, two Ortwerth affidavits validating that the letter was sent in accordance with Ocwen's regular practices and a corroborating entry from Donahue's file with Ocwen...The Court concludes that even just the February letter satisfied Ocwen's burden to send 'at least one' face-to-face letter to Donahue. 24 C.F.R. S203.604(b)...

"The undisputed evidence, however, shows that Ocwen did not strictly comply with 24 C.F.R. S203.604(b), because by Ocwen's own account, it both mailed the February 2016 face-to-face letter and visited the Property almost one year after Donahue went into default. As discussed above, S203.604(b) requires that a lender make a 'reasonable effort' to arrange a face-to-face meeting 'before three full monthly installments due on the mortgage are unpaid.' 24 C.F.R. S203.604(b). Accordingly, the Court must consider whether strict compliance with the timeline established in S203.604(b) is required.

"..Donahue, however has not identified a case that holds that a reasonable effort toward conducting a face-to-face meeting is condition precedent that requires strict compliance. Several courts have explicitly determined that strict compliance with the three-month window is not required...

"Even if Donahue could show a breach of contract based on Ocwen's failure to comply strictly with S203.604(b), Count III would still fail because Donahue has not met her burden of establishing disputed material facts showing that this alleged breach by Defendants resulted in damages.

"The court concludes that there is no evidence of Ocwen having a 'dishonest purpose' or having acted with 'conscious wrongdoing' that could sustain a claim of a breach of the duty of good faith and fair dealing..."

Donahue v. Federal National Mortgage Association, et al. 


Legal News: Social Services Disability - Financial eligibility

Where an application for supplemental security income was denied by the Social Security Administration, that decision should be upheld because the plaintiff's income exceeded the statutory limit.

"...On Saturday 14, 2012 (plaintiff Jimmy Lee) king filed an application for SSI benefits, alleging disability due to affective disorder, anxiety-related disorder and alcohol abuse in sustained remission...

"On June 11, 2014, SSA issued a notice to King stating that he was owed $14,940 in back payments for the time period between October 2012 and June 2014....The next day, June 12, 2014, the SSA retracted the aforementioned notice and stated that King was instead owed $595 in back payments for the period from December 1, 2013 through April 30, 2014. SSA also stated that King was ineligible for SSI benefits from October 1, 2012 to November 30, 2013 and from May 1, 2014 forward. Id. Specifically, SSA noted that King's excess resources originated from the following sources: approximately $50,000 in 'other' income in 2013, and worker's compensation proceeds in 2012. On June 26, 2014 ....SSA sent a third notice to King stating that his resources exceeded the statuory SSI limit between November 2013 through April 2014 and, as a result, he was ineligible for SSI benefits from December 1,2013 through April 2014...

"On April 28, 2017, the ALJ affirmed SSA's dcision denying SSI benefits because King's resources exceeded the statutory countable resources limit for SSI recipients and he did not produce sufficient evidence to rebutt this conclusion....

"King alleges that the ALJ failed to consider proffered evidence and testimony in concluding that King exceeded the statutory resource limit...

"King failed to account for at least $30,000 in cash withdrawals...

"Other courts have upheld SSI ineligibility dterminations where the claimant failed to account for the spend-down of excess cash...King has similarly failed to produce corroborating evidence of his spend-down and has not, therefore, met his burden under 20 C.E.R.sequence 416.200.

"The Court concludes here that the ALJ did not ignore documentary and testimonal evidence. Rather, the record before the ALJ indicates that King's income exceeded the statutory limit and he failed to proffer sufficient documentation of his spending, including by failing to account for nearly $30,000 in cash withdrawals. Accordingly, King failed to provide evidence that he satisfied the financial requirements for SSI eligibility and, as a result, the ALJ did not err in affirming the denial of SSI benefits..

"For the aforementioned reasons, the Court allows Commissioner's motion to affirm, D. 14, and denies King's motion to reverse and remand, D. 11."


Legal News: Landlord-Tenant Law

A case before the Supreme Judicial Court could have a devastating effect on assisted living facilities in the state.

The issue is whether the facilities are subject to the requirements of the security deposit statute that covers landlords and, if so, whether they have been violating those requirements by charging new residents a "community-fee".

The trial courts are split on the issue. In the case before the SJC, Superior Court Judge Chirstiopher K. Barry-Smith had granted a motion to dismiss filed by the facility. But in two other cases in the Business Litigation Session, Judge Kenneth W. Salinger held that the statue governing assisted living facilities was meant to supplement landlord-tenant laws, not supplant them.Under state law, a landlord may require a tenant to pay first and last month's rent, a security deposit equal to first month's rent, and the cost of a lock and key. Because a "community fee" doesn't fit into any of those categories, it iolates the security deposit statute, Salinger concluded.

The plaintiff in the case is the estate of a woman who moved into a Framingham assisted living facility in 2013. She was required to pay a "community fee" of $2,800, which was supposed to cover administrative costs, a service coordination plan, and move-in assistance, and contribute to a replacement reserve for buliding improvements.

The plaintiff's argument that the sizable fee violated landlord-tenant law has some surface appeal. But it ignores the differences between a garden-variety landlord-tenant relationship and what an assisted living facilty provides.

The entire assisted living industry is premised on the notion that it offers specialized housing that provides assistance with the requirements of daily living. That could include assistance with bathing, dressing, eating and using the toilet. None of those are services that would be provided by a traditional landlord.

Assisted living facilities differ from landlords in other ways. Because the services they provide often occur within a resident's individual unit, facility staff members have the authority to enter that unit much more freely than a londlord would. An assisted living provider can enter a residence to do safety checks, provide meals and change the sheets, among other things. Buf if a landlord did those things, it would be violating the covenant of quiet enjoyment.

And unlike landlords, assisted living facilities can discriminate on the basis of disability if the intitial screening process reveals that the prospective resident requires 24-hour skilled nursing care or has needs the facility can't meet. 

The bottom line is that the statue in question, Chapter 19D was designed to create a new style of living. The community fees assisted living facilities assess are designed to support the services they must provide and the staffing levels they must maintain.

The SJC should reject the argument that traditional landlord-tenant law applies.

Legal News: 3 Retirement Security Myths

Most of us expect to live longer, healthier and more active lives. How are YOU going to spend your time in retirement? Will you travel, volunteer, visit your family?

The possibilities are endless but when you do decide, the next step is determining how your choices translate into dollar and cents. So ask yourself: Can I afford the lifestyle I envision? Will I have dependents? What will my other expenses be?

These are just a few of the questions you need to answer. There are 3 popular myths about retirement that you want to avoid:

Myth #1: Lower expenses in retirement

In the past, it's been suggested that a good target for retirement income was 50-80 percent of pre-retirement after-tax income. However, your mortgage might not decrease, your healthcare and insurance costs may increase and with more free time you may tend to spend more money, depending on your situation.

Myth #2: My Social Security and pension will be enough

Traditionally, income at retirement has come from threee sources: government programs, employer-sponsored plans and private savings. However, today private savings is becomming an increasingly more important part of the equation.

Social Security was never designed as an alternative to personal responsibility. And, the higher your pre-retirement income, the less you will receive from Social Security as a percentage of pre-retirement income. When it comes to employer-sponsored pension plans, the trend in recent years has been for employers to offer tax-advantaged retirement savings plans to employees instead of employer-funded pensions. One difference is that while a pension plan is guaranteed, a retirment savings plan (401(k) plans are the most popular) are subject to the ups and downs of the stock market. Another difference is that retirement savings plans today are often funded largely with the employee's contributions.

If you fail to contribute or make poor investment choices, the benefits you receive from your retirement savings plans could turn out to be less than expected.

Myth #3: I know how long my money's going to last

Life expectancy is on the rise. You may end up being retired longer than you were in the workforce and this can make a big difference in how much you have to save while still working. Your life expectancy can make a big difference. For example, if you start with a retirement nest egg of $775,000 and earn 6 percent on your money, you can expect to receive about $75,000 per year for 15 years before your money runs out. If you live 20 years in retirement, you will need to start with $915,255 instead of just $775,000 to say in the money for the duration of life.

After dispelling these myths, you may want to recalculate the estimate of what it's going to take to finance the retirement lifestyle you envision. If you're like many people, you may encounter a gap between what you need and what you can expect to have. Your choices are pretty straightforward:

* Delay your reitrement date

* Reduce your retirment income goal

* Increase your savings level

* Increase the return on your investment

A well thought-out retirement strategy can be flexible enought to incorporate these changes. A financial professional can get you started and help you monitor your strategy over the years.

Legal News: Trust Laws

Just about everyone knows what the phrase "tools of the trade" means. It's a pretty important concept, implying a meaning that goes beyond its literal definition. It suggests that there are special, sometimes unique, tools that enable the tradesperson or professional to practice her vocation, while being unable to do so without them.

The tools we trust lawyers use to practice our profession are not tangible like a scalpel or a saw, but rather the established laws, principles, precedents and rules regarding trusts developed over decades by the courts and legislatures.

Unfortunately, Massachusetts courts in some recent cases have modified some of the most basic, well-established, and commonly used tools we have, virtually ignoring well-settled law.

One such law in particuar, and perhaps one of the most important rules in trust law, is the so-called "spendthrift trust rule." Simply stated, this is the rule that allows the settlor of a trust to provide that the trust assets will not be subject to the debts and liabilities of the beneficiary of the trust.

In 1875, the US Supreme Court held that spendthrift trusts were valid in Nichols v. Eaton (91 US 716), and a few years later, the highest Massachusetts court agreed in Broadway National Bank v. Adams (133 Mass. 170,1182).

In Adams, the court said: "The rule of public policy which subjects a debtor's property to the payment of his debts, does not subject the property of a donor to the debts of his beneficiary and does not give the creditor a right to complain that, in the exercise of his absolute right of disposition, the donor has not seen fit to give the property to the creditor, but has let it out of his reach." (Id. at 174).

That has been the law used repeatedly and effectively by lawyers in Massachusetts and throughout the United States for almost 150 years. Recently, however, the Appeals Court has decided to ignore this well-settled rule to reach a convenient decision. In Levitan v. Rosen, Case No. 18-P-847 (Appeals Court, May 5, 2019), a husband and wife were divorcing and the issue was the amount of the couple's assets that would be "subject to equitable distribution" under G.L.c. 208, Section 34.

The relevant facts were that, more than 30 years ago, the wife's father established an irrevocable trust for her, naming her as the sole beneficiary during her lifetime with remainder to her issue. The wife's benefits under the trust were at the sole discretion of the trustee without an "ascertainable standard," and the trust contained a spend-thrift provision.

The wife was given a limited annual right to withdraw trust prinicpal (5 percent). The wife's trust contained about $1.6 million of assets, while the husband's assets were dramatically less. (Althought the wife's assets outside the trust were not noted, it would appear the reason was they were not significant. We also note that the trust was a Florida trust, but the court stated that relevant Florida law was the same as Massachusetts law.)

The central issue in the case was whether the assets in the wife's trust were "includable in the marital estate for purposes of equitable distribution."

In analyzing the question, the lower court held that the amount the wife had the power to withdraw from the trust would be subject to division, but the remaining assets of the trust, clearly beyond not only the wife's access and control but beyond her creditor's access and control uner prevailing Massachusetts law, would not be subject to division. The spendthrift trust was outside the marital estate.

Unfortunately, the Appeals Court decided to sidestep prevailing law and get creative in order to reach what the court apparently felt was a more equitable result.

The court reviewed the enforceability of the spendthrift provision under Florida law, but then it did an unconvincing segue into the recently Pfannenstiehl case (discussed in an earlier Turst-worthy Advisor column), attempting to distinguish that case (decided on considerably different facts), using the distinction as a reason to hold that in this case the wife's trust assets should be subject to division. This was mainly on the basis that, unlike Pfannenstiehl, the wife's interest in the trust assets was not susceptible to reduction as she is the sole beneficiary of her share presently held in trust."

In supporting its decision, the court relied heavily on trust language stating that the wife "shall be primarily provided for" (of course, because she was the sole beneficiary!) and that "the trustee shall have no liability in favoring (the wife) - to the complete exclusion of the remainderman of this share."

Again, unfortunately, the court failed to note that no matter how broad the trustee's discretion, and no matter that there were no other beneficiaries during the wife's lifetime, it was still a disretionary spendthrift turst, and there were remaindermen (five children) to consider who had interests after the wife's death.

For the court to downplay those facts and the clear and applicable precedents in the law turns a tried and true tool of the trade into an unreliable contrivance.

One could envision the court taking a similarly aggressive position in other cases, as it erodes the protection of a third-party spendthrift trust. To help avoid that result, it may be a good idea for drafters to add one or more other beneficiaries (along with a spendthrift provision, of course, for what it may be worth), and perhaps a special power of appointment and maybe a trust protector to take the assets out of harm's (the appeals court) way. Just saying.....


Legal News: What is the Real I.D.?

What is the Real I.D.?

Starting on October 1, 2020, every US Territory and state resident will have to present a Real I.D. license or another form of acceptable identification to enter:

* Nuclear power plants

* Federal facilities

* A commercial aircraft

This is called card-based enforcement and the Real I.D. must be compliant unless the resident has an acceptable alternative document such as a passport.

The new regulation will not require such identification in areas where identification is not currently required to access a federal facility, such as public areas of the Smithsonian, nor does it prevent an agency from allowing other forms of identifying documents.

To board a commercial aircraft, even for domestic flights, you will have to have a Real Travel I.D. Driver's License or federally issued passport.

What about children?

In regard to children, the TSA does not currently require children under the age of 18 years to provide proof of identity as long as they are traveling in the United States with a companion.

The companion, however, will need to have an acceptable form of identification.

The bottom line:
Unless you choose to carry your passport when flying domestically, you need to contact your state's division of motor vehicles and find out how to apply for a Real Travel I.D. Driver's License.