Car leases violate federal and state law - a consumer who
sued to get out of a 24 month car lease may be entitled to punitive damages
and attorneys fees because he was not paid interest on his $500.00 security
deposit. The U.S. District Court for the Northern District of Illinois, in
denying a motion to dismiss a class action, found that the failure to pay
interest violated the Uniform Commercial Code, the federal Consumer Leasing
Act and a state consumer fraud statute. (CSBLG: "Lease It And
Save" Page 275)
Lead paint rules effective September 6th - real estate
sellers, brokers and landlords must disclose the presence of lead paint under
EPA and HUD regulations effective September 6th for owners of more than four
homes and December 6th for everyone else. They must disclose what is known
about lead paint on the property, provide a pamphlet about the dangers of
lead paint, include certain language in the sales contract or lease and allow
ten days for buyers to obtain a lead inspection and cancel the contract based
on the results. Knowingly violating the law will result in triple damages,
attorneys fees and penalties of $10,000.00 per violation. All housing
constructed before 1978 is covered except "0-bedroom" homes such as studio
apartments and dormitories and housing for the elderly or persons with
disabilities unless children under six years of age are expected to be
residents. (HTSLL: "Lead Poisoning", Page 99)
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What's New in Debtor/Creditor Law?
Proposed FDCPA Amendments - Senator Alan Simpson has
introduced a bill to amend the Fair Debt Collection Practices Act
(S. 1379). Senator Simpson noted the courts across the country have handed
down contradictory interpretations of the Act, so much so that the Federal
Trade Commission has asked Congress to clarify the law. "In addition, the
bill gets rid of the $1,000 statutory damage `carrot' that has, through its
misuse, become a winning lottery ticket for some lawyers," Simpson said.
Under the bill, collectors would still be held responsible for any actual
damages suffered.
Attorney's fee award under FDCPA denied - The United States
Court of Appeals for the Fifth Circuit ruled that plaintiffs are not entitled
to their attorneys fees where they prove a mere technical violation of the
FDCPA, with no award of actual or additional damage. The Court stated "our
interpretation of this statute will require attorneys to look for more than
a technical violation of the FDCPA before bringing suit and will deter suits
brought only as a means of generating attorneys fees".
Credit union liable under ECOA for requiring spouse to co-sign - When
the plaintiff applied for an unsecured loan with his credit union, he was told
that he would not be approved unless his wife co-signed the note. The couple
sued the credit union alleging a violation of the Equal Credit Opportunity Act
(ECOA) based upon the credit union's representation that the wife had to co-sign
the application to obtain approval of the loan. A Florida Appeals Court held the
credit union liable for substantively violating the ECOA. The court noted that,
although a creditor may request a co-signor in granting a loan, it cannot
require that the spouse be an additional party. (CSBLG: "The ECOA",
Page 312)
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What's New in Divorce/Family Law?
Divorce settlement can't be avoided by bankruptcy. A
bankrupt husband was not allowed to discharge a divorce property settlement
even though he did not currently have any disposable income to pay it
off. It was not dischargeable because the husband probably will have enough
disposable income to begin paying it off in the future ruled the U.S.
Bankruptcy Court in North Dakota. (CSBLG: "Bankruptcy", Page 312
and "Divorce Planning" Page 301)
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What's New in DWI/Traffic Law?
Passenger can be sued for drunk driving accident. A drunk
driver's passenger can be sued by a third party who is injured in an accident
according to the Missouri Court of Appeals which joins the states of
Illinois, Oklahoma, Oregon and West Virginia. The victim sued the driver's
three passengers for negligently encouraging him to speed, ignore traffic
signs and drive drunk.
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What's New in E-Commerce Law?
Computer Fraud and Abuse Act is a federal statute used to combat
"hacking" and "computer crime". It prohibits users from gaining
unauthorized access to, exceeding authorized access to and damaging, altering
or destroying information on computers used by or for the government,
financial institutions, credit card issuers and consumer reporting agencies
and those used in interstate commerce.
The Electronic Communications Privacy Act prohibits a third-party from
intercepting or disclosing electronic communications and unauthorized access
to, and disclosure of, stored electronic communications including e-mail,
voice mail, fax, cordless phone and cellular phone communications. There are
both criminal and civil penalties for violations by the government or private
citizens.
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What's New in Landlord/Tenant Law?
Tenant may be evicted for any illegal use. At the request of
the District Attorney, a landlord brought eviction proceedings against his
tenant who had been charged with trademark counterfeiting. The police
recovered counterfeit trademark apparel and sportswear from the leased
premises. The grounds for the eviction were that the tenant's possession of
counterfeit trademark items for sale was an "illegal trade, manufacture or
business", which violated the lease. The tenant's defense was that the
prohibition against illegal business was limited to only those businesses
which are immoral or dangerous to neighboring tenants, such as, drug
dealing, gambling or prostitution. The New York County Civil Court ruled
that the law was intended to govern any illegal business, trade or
manufacture regardless of the impact on the morals or welfare of the
community. The law has also been applied to recover premises used for other
illegal enterprises, including storage and distribution of fireworks,
obscene materials, liquor and even for violations of tenement housing and
multiple dwelling laws. (HTSLL: "Dealing With Drugs And Other
Illegal Activities", Page 64)
Landlords are liable for inadequate locks. Landlords are
liable for failing to provide adequate locks to protect tenants from criminal
attacks ruled the Oklahoma Supreme Court. A tenant sued her landlord for
negligence after she was raped in her duplex by a man who gained entry
through a side door. The duplex was in a high-crime neighborhood. The
landlord refused to install deadbolt locks or allow the tenants to do so at
their own expense. (HTSLL: "Civil Liability", Page 92)
Insurance coverage. Landlords are not covered for suits for
negligent security by tenants. The policy does not cover the suit by the
tenant who was assaulted in her apartment because of the exclusion for claims
based on "assault and battery" according to the New York Court of
Appeals. The court had previously held that an "assault and battery"
exclusion in a nightclub liability policy prevented coverage for a suit for
"negligent hiring" of a security guard who shot a patron. (CSBLG: "Purpose of Insurance", Page 297)
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What's New in Small Business Law?
Developer recovers $5.2 million for wetlands. The state must
pay a developer $5.2 million in damages because he was not allowed to build a
restaurant on a wetlands. This "taking" under the U.S. Constitution and the
state constitution ruled the Michigan Court of Appeals. He was entitled to the
recovery despite the fact that the "wetlands" comprised only 28 acres out of a
55 acre parcel and the developer owned or co-owned 3 other contiguous parcels
with the entire property totaling to 82 acres. However, the Wisconsin Supreme
Court refused to let a developer focus on a smaller portion of land to support
his argument that there was no economic use for the property.
Negligent use of security guards. Although a business usually
does not have the duty to hire security guards if there have not been any
prior incidents of violent crime, where it hires a security guard anyway, it
can be sued for negligent security regardless of whether there were any prior
incidents according to the California Court of Appeals. The plaintiff was
threatened by a group of youths when he walked into a restaurant. After a girl
struck him, the restaurant security guard grabbed her and took her
outside. However, he did not call the police or return to the restaurant until
after the remaining youths had attacked the plaintiff. Although the restaurant
may not have had a duty to hire a guard, once it did so, it had a duty to make
sure that the guard was not negligent. The businesses who hire security guards
are liable for failure to hire competent security guards. ("Employee", Page 183)
How to avoid EPA sanctions. A business that conducts voluntary
audits and discovers violations of environmental law can avoid EPA sanctions
under a new EPA policy if: the violation is reported to the EPA within ten
days; the problem is corrected and measures are taken to ensure that it won't
reoccur; and the "audit" meets the EPA's specifications. (If it doesn't meet
the specifications, the violator can still get at 75 percent reduction in its
fines). Sanctions cannot be avoided if: (1) the violation causes serious harm
or seriously endangers human health or the environment; (2) the same or a
similar violation has occurred at the same plant within the last three years;
(3) the problem is part of a "pattern of violations" over the last five years;
(4) company officials have been "consciously involved in or willfully blind
to" the problem; (5) the violation was identified as part of a monitoring or
sampling procedure required by law; (6) the company is already being inspected
by the EPA or a local environmental agency; or (7) the company doesn't report
the violation until after it has been reported by a whistleblower or a third
party. (CSBLG: "Environmental Reporting Requirements", Page 215)
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Injured Victims' Rights
The Friedman & Ranzenhofer, P.C. Ten Point Pledge to Accident/Injury Clients is:
- To communicate with you in plain language that is easy to understand.
- To promptly return your telephone calls.
- To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
- To have your case personally handled by an attorney.
- To keep you informed of the progress of your case at all times.
- To show you the personal care, concern and attention which has been the hallmark of our law firm since 1955.
- To not handle your case in an "assembly line" fashion.
- To accommodate the needs of you and your family during the handling of your case.
- To vigorously protect your legal rights.
- To never release your name to the media after your case has been completed, except with your written permission.
Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the Western New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.
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