Tuesday, April 22, 2014

U.S. Supreme Court Upholds Michigan's Affirmative Action Ban

The Supreme Court on Tuesday upheld Michigan's ban on using race as a factor in college admissions.  In Schuette v. Coalition to Defend Affirmative Action the justices said in a 6-2 ruling that Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. The justices said that a lower federal court was wrong to set aside the change as discriminatory.
Facts and details of the issues  presented to the court can be found at Cornell University Law School.
Visit our website for more on Massachusetts Law About Discrimination.

Sunday, April 20, 2014

Real estate financing

There has been a lot of discussion regarding foreclosure, but what about the mortgage itself? What are the laws and regulations that govern the origination and the terms of mortgage loans? The treatise Mortgage Lending is one place to turn for the answers. Published by the National Consumer Law Center, it covers both federal and state regulations. The chapters range from Analyzing a mortgage lending case, Reverse mortgages and  Mortgage litigation, to Federal laws that apply to abusive mortgage lending. Another resource is the treatise Mortgage lending compliance published by LexisNexis. This book focuses on compliance with the federal and state laws. Complete with commentary and exhibits, this treatise covers first and secondary one-to-four family residential mortgages. It comes with a CD that contains the entire book as well as many appendixes. These books, along with many others on the subject, can be borrowed at any Trial Court Law Library.

Friday, April 18, 2014

SJC Extends Warrantless Search to Rescue Endangered Animals

In Commonwealth v. Duncan on April 11, 2014, The SJC ruled on a question of first impression from Lynn District Court, which asked whether police can enter private property without a search warrant, extending the emergency aid exception of the Fourth Amendment to the U.S. Constitution and Article 14 of the Massachusetts Declaration of Rights to render emergency assistance to animals.

The opinion states: "In agreement with a number of courts in other jurisdictions that have considered the issue, we conclude that, in appropriate circumstances, animals, like humans, should be afforded the protection of the emergency aid exception."  Probable cause does not have to be established in emergency aid situations, "because the purpose of police entry is not to investigate criminal activity." The Court cited the existence of statutes and public policies regulating "human interaction with animals" and a "focus on the prevention of both intentional and neglectful animal cruelty" as support for its ruling.

Thursday, April 17, 2014

Drone regulation

The commercial and non-military use of unmanned aircraft systems (UAS), commonly known as drones, is prompting many safety and privacy concerns.  In terms of the safety of airways, progress toward regulation is slowly being made at the federal level.  When Congress passed the "FAA Modernization and Reform Act of 2012", P.L. 112-95,  it mandated that the FAA come up with a "comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the nation airspace system" within 3 years of the passage of the Act.  The FAA on Dec. 30, 2013 designated six locations around the country which will test the various uses of commercial UAS to help determine the best ways to regulate them.  Among these chosen test sites is the Joint Base Cape Cod (formerly the Otis Air Force Base) in conjunction with the Griffiss International Airport in upstate New York.

Legislation is also moving forward to address the privacy concerns that many have with unregulated use of drones.  In Massachusetts, Sen. Robert Hedlund has sponsored a bill, S.1664, that addresses such issues as the need to obtain warrants before using drones for searches and a requirement that drone users get the written consent of those affected before disclosure of any data.  The ACLU has a review of the status of drone legislation in other states.  At the federal level, Senator Edward Markey is creating legislation that deals with similar privacy issues.

Tuesday, April 15, 2014

Mass DOR delays filing deadline until Friday

Because of delays with their online filing system, Massachusetts taxpayers have until midnight on Friday to file state returns.

"Filing Extension Announced

The Department of Revenue’s WebFile tool, which allows individuals to electronically file state personal income tax returns, has experienced delays due to heavy volume over the past few days. DOR is actively working to resolve this issue, and has extended the deadline for taxpayers to file their Massachusetts Personal Income Tax returns, or to file for an extension, until midnight on Friday, April 18, 2014."
Federal returns are due today, no change there.

Monday, April 14, 2014

Tax refund fraud

There has been a significant increase in identity theft- related tax refund fraud over the last several years. Although anyone with a Social Security card can become a victim, those who commit this crime tend to target people who don't usually file taxes, such as the elderly, low-income families, students.  They also target public figures like celebrities, athletes, politicians, and government officials, even Attorney General Holder.

Both the FBI (Investigating tax refund fraud) and the IRS (Tips for taxpayers, victims about identity theft and tax returns) have tips regarding safeguarding personal information and when to file taxes to prevent becoming a victim.

For more information about identity theft, please visit our page on the topic.

Sunday, April 13, 2014

Pre -trial security for judgments

Concerned whether you’ll be able to recover on your judgment after your trial is over and judgment issues? Here are some pre-trial security steps to consider:

(a)         Availability of Attachment. Subsequent to the commencement of any action under these rules, real estate, goods and chattels and other property may, in the manner and to the extent provided by law, but subject to the requirements of this rule, be attached and held to satisfy the judgment for damages and costs which the plaintiff may recover.

(a) Availability of Trustee Process. Subsequent to the commencement of any personal action under these rules, except actions only for specific recovery of goods and chattels, for malicious prosecution, for slander or libel, or for assault and battery, trustee process may be used, in the manner and to the extent provided by law, but subject to the requirements of this rule, to secure satisfaction of the judgment for damages and costs which the plaintiff may recover, provided, however, that no person shall be adjudged trustee for any amount due from him to the defendant for wages or salary for personal labor or services of the defendant except on a claim that has first been reduced to judgment or otherwise authorized by law; and in no event shall the attachment exceed the limitations prescribed by law.
Massachusetts General Laws Chapter 246 Trustee Process

(a) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition…..
(d) Form and Scope of Injunction or Restraining Order. Unless the court, for good cause shown, otherwise orders, an injunction or restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Section 3(6)
Actions by creditors to reach and apply, in payment of a debt, any property, right, title or interest, legal or equitable, of a debtor, within or without the commonwealth, which cannot be reached to be attached or taken on execution although the property sought to be reached and applied is in the possession or control of the debtor independently of any other person …..
Section 3(7)
Actions to reach and apply shares or interests in corporations….
Section 3(8)
Actions to reach and apply in payment of a debt any property, right, title or interest, real or personal, of a debtor, liable to be attached or taken on execution in a civil action against him and fraudulently conveyed by him with intent to defeat, delay or defraud his creditors, or purchased, or directly or indirectly paid for, by him, the record or other title to which is retained in the vendor or is conveyed to a third person with intent to defeat, delay or defraud the creditors of the debtor.
Section 3(9)
Actions to reach and apply the obligation of an insurance company to a judgment debtor….

Upon motion of a party, if the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon, a justice of the court in which the action is pending shall make a finding to that effect and endorse the finding upon the memorandum……

Print and CD Resources:

Additionally, patrons of our 17 Trial Court Law Libraries have access to databases including free in-library access to WestLaw and Lexis legal databases, to search for cases, statutes and other materials.

Good Reading!