“Send me dead flowers to my wedding, and I won’t forget to put roses on your grave”

by:  Peter J. Gallagher (@pjsgallagher)

I don't handle any family law cases, mostly because I do not think I could deal with the emotional issues that are often involved in them. But every now and again a family law decision piques my interest. The recent unpublished Appellate Division decision in Taffaro v. Taffaro was one of those cases. In that case, plaintiff was estranged from his half-sister after a dispute over their mother's estate. After the dispute, he began "attaching paper items" to her gravestone, "frequently directed at [his half sister] and referencing the dispute." When some of these items were removed, plaintiff assumed his half-sister did it, so he pursued criminal charges against her and, when these proved unsuccessful, sued her for conversion, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress.

The court dismissed the invasion of privacy and intentional and negligent infliction of emotional distress counts on statute of limitations grounds. Even assuming that defendant took the items from the gravestone, which there was no evidence to support, they were taken more than two years before plaintiff sued and plaintiff's claims were thus untimely. The trial court then held a bench trial on the conversion claim and eventually dismissed it as well, holding that plaintiff had abandoned the items. Plaintiff appealed.

The Appellate Division affirmed. It held that conversion is the "unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another . . . ." But, abandonment, which is the relinquishment of "all right, title, claim and possession" of property "with the intention of not reclaiming it," is a complete defense to conversion. In Taffaro, the Appellate Division held that the "necessary overt act" demonstrating abandonment occurred when plaintiff placed the items at his mother's grave. The Appellate Division held that the "ephemeral nature of the cards and decorative items, which were made of paper and left outside" demonstrated plaintiff's "intent to abandon." And, the Appellate Division noted that the purpose of the items was to harass defendant, not honor the memory of plaintiff's mother. Therefore, for all of these reasons, the court held that plaintiff had abandoned the items and could not maintain a cause of action for conversion.

[Fun little fact about the title of this post, which obviously is a portion of the lyrics from one of my favorite Rolling Stones songs, "Dead Flowers." My friend and I went to see Steve Earle at Tradewinds in 1998 when he was touring in support of his El Corazon album. Great show. But then, for the encore, he came walking out with Bruce Springsteen. Now, in the interest of full disclosure, my friend and I went to the show mostly because we were big Steve Earle fans, but partly because of the chance that Bruce might show up. Lucky for us, he did, and they played a couple of Stones songs, including Dead Flowers. They also played Everybody's Trying To Be My Baby" for Carl Perkins who had died a few days before the show. Anyway, click here for the full audio from the encore.]

Oops?!? Failure To Include Transcript In Appellate Record Results In Harsh Sanction

by:  Peter J. Gallagher (@pjsgallagher)

It's not quite "deflategate" but the U.S. Circuit Court of Appeals for the Second Circuit recently reminded all of us that rules are rules and they need to be followed whether they involve the air in a football or the contents of an appellate record.

In Lehman Brothers Holdings, Inc. v. Gateway Funding Diversified Mortgage Services, L.P.,  plaintiff alleged that defendant was required to "make good on four mortgage loans" that plaintiff's subsidiary had purchased from defendant's predecessor ten years earlier. The district court eventually granted plaintiff's summary judgment motion, and held that defendant was liable to plaintiff for an amount totaling around $450,000 plus interest. The reasons for the district court's decision are not as interesting as what happened to defendant when it appealed that decision.

 

 

Continue reading “Oops?!? Failure To Include Transcript In Appellate Record Results In Harsh Sanction”

How To Get A $300,000 Home For Just $16!!

by:  Peter J. Gallagher

A Texas man has moved into a $300,000 home in a "well-manicured" section of Flower Mound, Texas and it only cost him $16 to do so.  As the Daily Mail recently reported ("Man Uses Obscure Law To Obtain Ownership Of $300K Home In Upscale Texas Town . . . for just $16"), the man took advantage of an "obscure" Texas law that permits residents to take ownership of abandoned homes through adverse possession.  Although apparently not too popular with his new neighbors, the man is the envy of extreme couponers and bargain hunters everywhere. 

As the article notes, the house was abandoned after being hit with a trifecta of mortgage crisis phenomena:  (1) the mortgage company foreclosed upon the property; (2) the owners simply walked away from the mortgage and the property; and (3) the mortgage company went bust.  Enter Kenneth Robinson.  After doing "months of research," Robinson filled out some paperwork, paid the $16 filing fee, and moved his belongings into the home.  Robinson is now seeking to take ownership in the home under a law that the paper described as follows: 

Under the law, if someone moves into an abandoned home they have exclusive negotiating rights with the original owner.

If the owner wants them to leave, they have to pay off the mortgage debt on the home and the bank has to file a complicated lawsuit to get them evicted.

Mr Robinson believes that because of the cost required to move him out, he will be able to stay in the house. Under occupancy laws, if he remains there for three years he can ask the court for the title.

Staying three years may prove difficult though, as the home currently does not have any water or electricity.  Nonetheless, Robinson appears undeterred.

Not surprisingly, the neighbors have not welcomed Robinson to the neighborhood with open arms.  In fact, since moving in, Robinson has put up "No Trespassing" signs after his neighbors called the police to have him arrested for trespassing.  However, according to the police, Robinson cannot be arrested or removed because home ownership is a civil matter.  Judging by the comments from the neighbors, it does not appear that the matter will stay civil for much longer.