New proposed rule would make it easier to sue credit card companies

Posted by & filed under Civil Rights.

Today the Consumer Financial Protection Bureau (CFPB) proposed a new rule that could make it easier for you to sue a credit card company. According to the CFPB, The proposed new rule would “make it illegal for contracts for many types of consumer financial products to have an arbitration clause that deprives consumers of the opportunity to participate in a class action lawsuit.”
Currently, many companies use contracts with arbitration clauses that prohibit consumers from filing a class action suit. This new proposed rule would allow consumers to band together to form a class action lawsuit so that companies can be held accountable for wrongdoing.
Learn more about the proposed rule at

New publication for Michigan’s Real Property Law Section

Posted by & filed under Uncategorized.

I’m pleased to announce that an article I co-wrote has now been published!

An Agricultural Law Analysis of Green Acres and the City: A Curly Pig Tale of a Problem

This article covers some of the statutes and rules that affect Michigan real estate, especially agricultural real estate. It includes a description of real property tax relief and transfer exemptions under the General Property Tax Act and Farmland and Open Space Preservation Act, uncapping rules, and tax credits available to farm owners enrolled in farmland preservation programs that can help agricultural enterprises survive and thrive.

If you’d like to know more about this article or have other legal concerns, please contact my office.

One out of three Americans has debt in collections

Posted by & filed under Bankruptcy case.

Major news sources today shared a recent report from the Urban Institute, which makes the bold claim that one in three Americans with a credit file has a debt that is in collections.

The article quotes Caroline Ratcliffe, a senior fellow at the Urban Institute: “Most people wouldn’t blink if told that the majority of Americans carry some debt. But they would be shocked to learn that reported debt in collections is pervasive and threads through nearly all communities. Delinquent debt can harm credit scores, which can tip employers’ hiring decisions, restrict access to mortgages, and even increase insurance costs.”

Federal laws including the Fair Debt Collection Practices Act and the Fair Credit Reporting Act may help consumers in Michigan who face these difficulties. Negotiating a binding settlement and working with creditors to satisfy their claims is possible. In addition, for some, Bankruptcy is an option.

I know from the work I’ve done that post-due debts are more than a headache. Creditors are very interested in getting paid, and debtors are interested in relief. If you have a debt that is in collections or a case that involves bad debt, contact my office to see how I can help. I serve clients in Oakland, Wayne, and Macomb Counties.

Supreme Court holds that debtor cannot keep inherited IRA

Posted by & filed under Bankruptcy case, US Supreme Court.

Clark v Rameker decision by Supreme Court

Today, the Supreme Court held in favor of a trustee who argued that a debtor cannot exempt a tax-exempt inherited individual retirement account under a section of the bankruptcy code that allows debtors to exempt “Retirement funds to the extent that those funds are in a fund or account that is exempt from taxation. . . .”

The Supreme Court held that funds held in inherited IRAs are not “retirement funds” within the meaning of §522(b)(3)(C).

To decide this, they turned to the American Heritage Dictionary to define “funds.” Then, they turned to the dictionary to define “retirement.” Cleaving the two definitions together, the Court wrote that “Section 522(b)(3)(C)’s reference to ‘retirement funds’ is therefore properly understood to mean sums of money set aside for the day an individual stops working.”

The Court then offered guidance for future cases where this question might arise by stating, “we look to the legal characteristics of the account in which the funds are held, asking whether, as an objective matter, the account is one set aside for the day when an individual stops working.”

The Court then explained several key differences between an inherited IRA and a Roth IRA or traditional IRA. First, with an inherited IRA, an account holder cannot contribute to the account. Second, they must take mandatory distributions. Finally, unlike other retirement accounts, an individual can withdraw the entire balance of the account at any time without penalty.

Taken together, the Court was unwilling to let the debtor keep a “pot of money” and thwart the purpose of bankruptcy. They wrote, “Allowing that kind of exemption would convert the Bankruptcy Code’s purposes of preserving debtors’ ability to meet their basic needs and ensuring that they have a ‘fresh start’ into a ‘free pass.’”

Note: I wrote about this case in an earlier blog post.

College students in Michigan may soon postpone mandatory jury service

Posted by & filed under Uncategorized.

Michigan, like most places in America, has a compulsory jury service requirement. Michigan law also requires people who are summoned for jury service to appear, upon penalty of contempt. (MCL 600.1346)

But the Governor of Michigan may soon change that after he signs House Bill No. 4570, which has already been passed by the Michigan House and Senate.

This new bill, introduced by the Michigan House, allows a student to postpone their jury service requirement. Here is the language of the amendment:


This bill is of course welcome news by many students who might otherwise suffer academic hardship if required to serve at the expense of their academic schedule. Note however, that this new law will only delay a jury service requirement until the academic year is over. 

Whether you hope to serve or despise the summons, you probably know that juries are a big part of our nation’s legal heritage. Entire books could be written on jury duty.  But for those who are students, I’ll just leave this post with a few references related to juries and the law:

The Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .”

Also the Seventh Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The Supreme Court has also held that the First Amendment allows a person to observe a jury selection.  Press-Enterprise Co. v. Superior Court of California (The Press Enterprise requested that the voir dire, the process of questioning the jury, be open to the public and press.)

Update: Governor Snyder signed HB4570, and the Act is immediately effective as of Feb. 18th, 2014.

Michigan slip and fall law and icy conditions

Posted by & filed under Appeals, Negligence Law.

The weather in the past few days and weeks has been unseasonably cold. Even as I write this, there are near blizzard conditions outside, and any travel is hazardous. And when there is snow and ice, there is often injury.

What is Michigan’s law with regard to slip and fall cases involving icy conditions?

The Michigan Supreme Court addressed this topic in the 2012 case of Hoffner v. Lanctoe, 492 Mich 450. In Hoffner, the plaintiff had a paid membership to a fitness center owned by the defendants, Richard and Lori Lanctoe. The Lanctoes were responsible for snow removal. The Lanctoes had shoveled and salted earlier in the day, but when Hoffner arrived at 11:00 am, she observed that the sidewalk was icy. She thought that that ice “didn’t look like it would be that bad” and decided to enter the building. She fell on the ice, injuring her back.

The Michigan Supreme Court began by laying the foundation for Michigan’s rules in slip and fall cases. “First, landowners must act in a reasonable manner to guard against harms that threaten the safety and security of those who enter. Second, landowners are not insurers; that is, they are not charged with guaranteeing the safety of every person who comes onto their land.”
So there is a balance. On the one side, landowners should strive to diminish harms, but visitors must also be careful to avoid obvious harms.

With regard to business invitees, “a landowner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner’s land.” “[A] breach of this duty of ordinary care [occurs] when the premises possessor knows or should know of a dangerous condition on the premises of which the invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee of the defect.”

However, a landowner “owes no duty to protect or warn” of dangers that are open and obvious[.]” Michigan courts have held that whether a danger is open or obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.

There is an exception to the “open and obvious” defense. Michigan courts have found liability when special aspects of a condition make even an open and obvious risk unreasonable. When such special aspects exist, a premises possessor must take reasonable steps to protect an invitee from that unreasonable risk of harm. And, the Michigan Supreme Court shared two examples in which special aspects of an open and obvious hazard could give rise to liability: when the danger is unreasonably dangerous or when the danger is effectively unavoidable.

A brief recap:
1) No duty to protect when condition is “open and obvious.”
2) There is a duty if there are “special aspects:”
a) When danger is “unreasonably dangerous.”
b) When danger is “effectively unavoidable.”

The Michigan Supreme Court applied the above rules in Hoffner. The Court noted that there was “no dispute that the ice on which plaintiff fell was objectively open and obvious. Instead, the parties’ real dispute concerned whether that readily apparent ice patch was effectively unavoidable and thus constituted a special aspect.”

The Court held that “the standard for ‘effective unavoidability’ is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. As a parallel conclusion, situations in which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so.”
The Court then reasoned that “the Plaintiff observed the ice at the entrance to the fitness center, which she desired to enter. Plaintiff freely admitted that she knew that the ice posed a danger, but that she saw the danger as surmountable and the risk apparently worth assuming in order to take part in a recreational activity. Plaintiff was not forced to confront the risk, as even she admits; she was not ‘trapped’ in the building or compelled by extenuating circumstances with no choice but to traverse a previously unknown risk. In other words, the danger was not unavoidable, or even effectively so.”

In summary, from this case we learn that unless a person is required or compelled to confront a dangerous hazard such as an icy or slippery surface, it will probably be difficult to win a slip and fall case. But as usual, I caution that if you or someone you know has been injured in a serious slip and fall, it can’t hurt to speak with an attorney to learn your rights.

Supreme Court to hear Bankruptcy Case on Inherited IRA account

Posted by & filed under Bankruptcy case, US Supreme Court.

Many people don’t realize that a debtor in bankruptcy can usually keep the money that is in their retirement accounts. This is because in 2005, Congress amended the bankruptcy code and added 11 USC 522(d)(12), which allows debtors to exempt “[r]etirement funds to the extent that those funds are in a fund or account that is exempt from taxation under 401, 403, 408. . . .”

But what is the rule if some of the money a debtor has in retirement accounts comes from an inherited IRA?

The US Supreme Court recently decided to hear arguments in the bankruptcy case of Clark v. Rameker.

In this case, a debtor in bankruptcy received an IRA account from a deceased parent. Upon the death of the debtor’s parent, the IRA account was transferred under applicable tax rules to the debtor. Debtor declared bankruptcy and sought to exempt the funds in that Inherited IRA from the estate.

The Supreme Court decision will hopefully settle the question of “[w]hether an individual retirement account that a debtor has inherited is exempt from the debtor’s bankruptcy estate under Section 522 of the Bankruptcy Code, 11 U.S.C. 522, which exempts “retirement funds to the extent that those funds are in a fund or account that is exempt from taxation” under certain provisions of the Internal Revenue Code.”

Various courts across the nation have addressed this question, including in the Sixth Circuit and Eastern District of Michigan (In re Kalso and In re Stephenson). And with few exceptions, courts nation-wide have ruled that the debtor is able to exempt the inherited IRA accounts.

Because I once participated in a similar case, I’ll be looking forward to following this case.

Are corporations “persons” capable of “religious exercise?”

Posted by & filed under Civil Rights, Sixth Circuit.

Is a for-profit, secular corporation a “person” capable of “religious exercise?”

In this recent opinion from the Sixth Circuit on an issue of first impression, the Court said, “No.”
On first glance, this question may sound a little silly. But it isn’t silly to the Kennedy family. They own two companies named Autocam Corporation and Autocam Medical, LLC (collectively, “Autocam”) which make parts for the automotive and medical industries. Autocam has over 650 employees in the United States. The Affordable Care Act (“ACA”) requires Autocam’s health plan to cover, without cost-sharing, “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling” for female employees enrolled in the health plan.

Autocam and the Kennedys claim that compliance with this law will force them to violate the teachings of the Kennedys’ church, but failure to comply will result in steep fines against Autocam.
They sued and sought a preliminary injunction that would relieve Autocam of the duty under the ACA, claiming that the law violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. 2000bb. The Sixth Circuit explained that the Kennedys did not have standing, and so the Kennedys could not proceed with the case. But the Kennedy’s company, Autocam, does have standing.

So you get the picture. The Kennedys are not keen on being forced to indirectly support a law that they claim violates their religion. Religious belief is a protected status in America, through the RFRA. The RFRA makes laws which offend the freedom of religious belief subject to strict scrutiny.
To decide this case, the Sixth Circuit first had to decide whether Autocam was a “person” under the RFRA. They did this by referencing the “Dictionary Act,” which is a law that the Supreme Court uses to define terms when there aren’t definitions in law. According to the Dictionary Act, “unless the context indicates otherwise . . . the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

Looking at the relevant context, the Court concluded that “Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as “persons” under RFRA.” And the Court stated, “Congress did not intend to expand the scope of the Free Exercise Clause.” The Court then used a series of string citations to hammer the point: “We are not aware of any case. . . . in which a for-profit, secular corporation was itself found to have free exercise rights.”
Finally, the Court mentioned Citizens United, but contrasted that case with this one, stating that “[this] case arose under the Free Speech Clause. No analogous body of precedent exists with regard to the rights of secular, for-profit corporations under the Free Exercise Clause prior to the enactment of RFRA.”

Altogether, the Sixth Circuit’s opinion is at odds with some of the other Circuits, and this is a question that the Supreme Court may feel inclined to take up in the future. (Perhaps the SCOTUS will hear this case, if Autocam and the Kennedys appeal?) Further, there is no binding case law on this topic.

One final question to consider: Would this case have been any different if the company were, instead of an automobile parts company, a for-profit Christian bookstore owned by a non-profit religious entity? Perhaps. 904 F. Supp. 2d 106 D.D.C. 2012

S.S. Central America sunken treasure and 6th Cir opinion

Posted by & filed under Sixth Circuit.

The Sixth Circuit released an opinion yesterday on a subject that I’ve actually had a run-in with at another time in my life. It involved the sinking of the S.S. CENTRAL AMERICA (which was formerly known as S.S. GEORGE LAW) in 1857, along with $1,600,000 in gold which was mined from gold rush California (in today’s dollars, this is almost 39 Million).

While I was a graduate student, I wrote my Master’s thesis on aspects of the California and Nevada Gold rushes, and I spent much of my research on a particular miner and the letters he sent home to his wife in Hartford, Vermont. The miner, N.A. Chandler, wrote letters almost monthly to his wife.

His letter of November 1st, 1857 reads in part,

Nov 1st /57

“Dear Wife I received yours of Sept 16th yesterday the mail did not arrive as soon usual by about 8 days owing to the Disaster of the Geo Law which you have more particulars about than I have. Thare were some who I knew aboard one young man who has been to work where I have this fall and summer and several from Alpha it was a very sad affair for them when so near home it would have been better perhaps if they had been coming this way. . . .”

Fast-forward 130 years.

A man named Thompson and his colleagues located the Central America in September 1988 off the coast of South Carolina. Using a submersible robot, they began removing millions of dollars in gold coins, ingots, and bars from the wreckage. . . and the lawyers descended. Under the Maritime law of finds, the insurance companies took part ownership, and Thompson and his colleagues took part ownership under the Maritime law of salvage. But Thompson has not yet paid his colleagues their share, and this lawsuit results.

Several of the employees and various companies involved in the gold discovery became entangled in this lawsuit brought in Ohio State Court. One reason the action was first brought in Ohio is that there were seven crates of artifacts stored in a warehouse in Columbus. The action was removed to Federal District Court.

The district court judge granted several requests by the colleagues, and ordered Thompson to appear in person before the court. When he did not appear, the judge issued a bench warrant for Thompson’s arrest. He remains at large today.

The rest of the case deals with issues of federal jurisdiction and maritime law, complex procedural issues which you can read at your leisure.

Last, to the Sixth Circuit we owe this nugget-of-a-quote:

“To be sure, salvage actions have long presented numerous complexities for the federal courts. Add to this the factual peculiarities of a recovery operation for treasures long, and assumed forever, lost at the bottom of the ocean, and even the most seasoned jurist can find himself navigating uncharted waters.”

The Sixth Circuit affirmed the district court in full over all issues under which they had jurisdiction. (The Defendants need to start showing the gold.)

It seems that, as N.A. Chandler wrote, it has been “a very sad affair.”

Cell phone rings in criminal trial and courtroom cleared

Posted by & filed under Criminal Appeals, Criminal Law.

Does a judge violate a criminal defendant’s Sixth Amendment right to a public trial violated when a cell phone goes off and the judge clears the courtroom? In a word, Yes. But what is the remedy?

The Sixth Amendment:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been         previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

A recent unpublished Michigan Court of Appeals opinion, People v. Dixon (Sept. 12, 2013) No. 305185, brings us this legal principle.

In an appeal from his criminal conviction, defendant Dequeze Dixon claimed (among several other claims) that the trial court denied him the right to a public trial.

Here are the facts giving rise to this claim:

At the beginning of [a witness’] testimony, the judge heard a ringing telephone in the courtroom and stated:

Who’s got the ringing phone? Whoever’s got it better give it up or I’m going to kick everybody out of the courtroom. Who’s got the ringing phone? Okay, everybody leave the gallery. You’re gone. Everybody’s gone.

Deputies cleared the courtroom, and counsel from both sides approached the judge. Dixon’s counsel stated, “I don’t care who’s in the gallery. That’s not my concern.”

For the rest of the day, no spectators were permitted to reenter the courtroom except for a member of the media, who had previously requested permission to video-record some testimony. The next day, the courtroom was reopened to all.

In Michigan, the right to a public trial must be asserted. If a defendant neither objects nor asserts his right to a public trial, review on appeal will be for plain error affecting defendant’s substantial rights.

Here, the defendant did not object to the closure. The Appeals Court also wrote, “In our view, the trial court’s reaction was extreme and excessive; justice is better served by a calmer and more measured response. However, it appears on balance that the trial court’s closure was less “to exclude the public, but to control courtroom distractions.”

Because the defendant did not demonstrate that the courtroom closure impacted the ability of counsel to examine the witness thoroughly or in any manner “seriously affect[] the fairness, integrity, or public reputation of [the] judicial proceedings, Dixon cannot demonstrate entitlement to a new trial.


No word yet, however, on whether you could get your phone back if a judge took it.