Class action barred by arbitration clause. Senior citizen
homeowners alleged that the Defendant deceived them by misrepresenting the
interest rate and finance charges of their reverse mortgages and burying
the arbitration clause in 25 pages of fine print. The Ninth Circuit
dismissed the case for lack of jurisdiction because the class action was
barred by the arbitration clause under the Federal Arbitration Act. However,
after the Plaintiffs' claims have been individually arbitrated, they may
then file a class action.
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What's New in Debtor/Creditor Law?
Collection letter may be sent after debtor requests no further
contact. After being contacted several times by a collection
agency, the debtor sent a letter asking it not to contact him
anymore. However, the agency sent another letter asking him to "select
one of the following payment arrangements" and stating, "This is an
attempt to collect a debt". The Federal Debt Collection Practices Act
(FDCPA) requires that once a debtor asks the collection agency to stop,
it can contact him only to say that it is: (a) giving up; or (b) pursing
a "remedy" such as a repossession, garnishment or a lawsuit. The U.S.
Court of Appeals, Sixth Circuit ruled that an additional letter can also
qualify as a "remedy" under the FDCPA.
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What's New in Divorce/Family Law?
Court chooses children's religion. A Jewish mother and
Christian father agreed before they were married that their children would
be raised as Jews. When they divorced, the father began taking the
children to Christian services and repeatedly attacked the boy's Jewish
faith. The divorce court's order forbade the father from taking the
children to church or Sunday school. The Massachusetts Supreme Court
ruled that a divorce court can settle a dispute over a child's religious
upbringing if the dispute is causing "substantial harm" to the child. The
order did not "foster an excessive government entanglement with religion"
because the divorce court was merely trying "to limit the emotional harm
to the children caused by exposure to negative messages presented by
the (father's) religion".
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What's New in Estate Planning Law?
Estate Planning in the 21st Century. Estate, financial
and medical planning will dramatically change by the 21st Century. Not
only are the laws undergoing significant changes, but also there have
been revolutionary changes in medical technology, family relationships
and public awareness. With proper planning, you can preserve your home
and retain control of your medical and financial decision-making. The top
ten reasons for this change are:
- Demographics -- The two major demographic factors affecting estate planning in the 21st Century will be increased life expectancy and maturing of the baby boomers. It is becoming more and more common for four or five generations to be living at the same time. A child born in 1996 could expect to live 70.6 years, about 29 years longer than a child born in 1900 does. The major part of this increase is due to reduced death rates for children and young adults.
The most rapid increase in persons 65 or older is expected between the years 2010 and 2030, which the "baby boom" generation reaches the age of 65. By 2030, there will be about 70 million seniors, more than twice the number in 1996. People 65+ are projected to represent 13 percent of the population in the year 2000 and 20 percent in the year 2030.
- The nontraditional family -- The "traditional family" has become a thing of the past. Divorces, remarriages, unmarried couples and blended families are becoming the norm. Wives are no longer at home to care for elderly relatives. Traditional types of estate planning do not work for nontraditional families. Prenuptial agreements, living trusts, testamentary trusts and property ownership agreements are necessary.
- Nursing home care costs
- Increase in disabled children
- Increased use of the Internet
- Transfer of wealth and business to the younger generation
- Elimination of federal and state estate and gift taxes for most people
- New IRAs
- Medical decision-making
- Powers of attorney and guardianships
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What's New in Health Law?
HMO sued for bad faith. Public employees, self-employed
persons or employees of a charitable organization can sue HMOs, which
refuse to pay benefits, for "bad faith". An HMO lacked the expertise to
treat a 13 year old girl with an eating disorder. She was referred to an
in-patient program at a nearby hospital. Under the terms of the plan she
was entitled to up to ten weeks of in-patient psychological
treatment. However, after only six weeks, the HMO stopped paying and the
girl was discharged from the hospital. Her weight dropped rapidly from
95 to 74 pounds. She had to be readmitted two months later. The Plaintiff
sued, claiming that the decision to stop payment after only six weeks was
made in bad faith and that she had been harmed by her early release from
the hospital. The Wisconsin Supreme Court ruled that to prevail on a bad
faith tort claim against an HMO, a Plaintiff must plead facts sufficient
to show: (a) the absence of a reasonable basis for denial of a claim for
out-of-network coverage or care under the subscriber contract; and (b)
that the HMO, in denying such a claim, either knew or recklessly failed
to ascertain that the coverage or care should have been provided. There
have been similar rulings in Colorado and Ohio.
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What's New in Landlord/Tenant Law?
New HUD rules on civil penalties. HUD has proposed a new
rule which interprets the Fair Housing Act to allow Administrative Law
Judges (ALJs) to assess a separate civil penalty for each of multiple acts
involving housing discrimination. Under the Act, housing discrimination
violations carry maximum civil penalties for first-, second-, and third
time offenders. The proposed rule would interpret the Act to clarify that,
in a given case, an ALJ may assess more than one maximum civil penalty
against a respondent in a given case, where the respondent has committed
separate and distinct acts of discrimination.
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What's New in Personal Injury Law?
Rape victim can sue under Federal Law. A college freshman that claims
that she was raped by two of her classmates can sue them for damages and
attorneys fees under the federal "Violence Against Women Act". The Act was
intended to apply to victims of rape, stalking and sexual
harassment. However, it has been used a leverage in divorces involving
domestic violence (see Vol. 1, No. 5). The Act requires a Plaintiff to
prove that the Defendant committed a crime or violence that was motivated
by gender. A "crime of violence" means a felony involving actual,
attempted or threatened use of physical force or a substantial risk that
physical force would be used. However, a Defendant can be sued whether
or not he or she has been charged with the crime (Fourth Circuit). U.S.
District Courts in Connecticut, Iowa, New York and Tennessee have also
upheld the act.
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What's New in Real Estate Law?
Failure to reveal flooding is fraud. Commercial property
buyers can sue sellers for fraud when they fail to reveal that the
property had been flooded. The fact that the buyers purchased the property
under an "as is" contract did not bar their claims. (Michigan Court of
Appeals)
Neighbors of crack house awarded damages. Two men sued
their next door neighbor claiming that drug sales at her house lowered
the value of the former public library that they were restoring as a
home. The court awarded $35,000 in punitive damages, $35,000 in attorneys
fees and other damages and permanently enjoined the property owner from
running a "crack house and any activity that disturbs the peace and
tranquility to which every law abiding citizen is entitled". (DeKalb
County Court, Georgia)
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What's New in Small Business Law?
Employee awarded punitive damages. A bank employee who
repeatedly complained to management that he was not being paid overtime
sued the bank for violating the Fair Labor Standards Act. The bank then
fired him for removing "confidential documents" from his desk at work. The
employee claimed that he was merely complying with the bank's demand for
discovery documents and that he was really fired in retaliation for his
complaints about the overtime policies. The Act defines "retaliation"
broadly to include a discharge of any employee who has "filed any
complaint, or caused to be instituted any proceeding... or is about to
testify in any such proceeding". A damage provision, which also applies
to lawsuits under the Age Discrimination in Employment Act and the Equal
Pay Act, allows "such legal or equitable relief as may be
appropriate". The employee argued that "appropriate" relief could include
punitive in addition to liquidated or "double" damages. The court ruled
that punitive damages are available under the Act. (U.S. District Court,
Massachusetts)
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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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