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Bankruptcy Attorney David Chenelle came across an article in the Money section of the CNN.com website that relates to his practice area, the economy and the predicament of many recent college graduates. Entitled “Wall Street firm is causing a stir by suggesting that some student loan debt be forgiven for first-time home buyers”, the piece cites statistics about changes in the type of personal debt of young people over a ten year period (Student loans are rapidly catching up to mortgage debt) and the relationship between monthly student loan payments and the amount a recent grad can spend on a house. The webpage with the full story is at: http://money.cnn.com/2014/10/31/news/economy/student-debt-forgiveness-wall-street/index.html?iid=HP_LN Add a comment

By Kimberly Alley, Esq.

 

It happens. Your employee leaves to join a competitor.  But you have rights under restrictive covenants of the employee’s non-compete, non-solicitation or confidentiality agreements.  Should you let the new boss know?  More importantly, if you do - will your “cease and desist” efforts come back to haunt you?

 

According to a recent Massachusetts’ Superior Court decision, your communications warning the new company of the potential for litigation may not be used against you. These warning letters may constitute a protected (and therefore, inadmissible) communication pursuant to the “litigation privilege.”

 

The “litigation privilege” is a legal protection traditionally afforded to attorneys for their communications made during the course of representation. This privilege provides protection that shields an attorney from civil liability to non-clients for communications made in the course of good faith litigation.  The litigation privilege is often asserted in defense of defamation claims against an attorney for statements made during the course of litigation.

 

This privilege, however, does not just apply to attorneys’ communications or defamation cases. In August 2014, a Middlesex Superior Court judge found that the litigation privilege protected an employer’s cease and desist communication in an employment dispute.  In Pegasystems, Inc. v. Manning, the Court recognized that “[t]he litigation privileged applies not only to statements by attorneys but also to ‘communications by a party’ as long as the other conditions of the privilege are present.”

 

In Pegasystems, an employee brought suit against his past employer after it sent a cease and desist letter to the employee and his new employer.  The letter claimed that the employee misappropriated a customer list and solicited former co-workers in violation of restrictive covenants in the employment agreements.  As a result, the employee was terminated from his new employment due to concerns about potential litigation.  He sued the former employer for tortious interference with business relations, misrepresentation and violations of c. 93A.  The court dismissed the claims because the litigation privilege prevented liability for the cease and desist communications.

 

The key to obtaining the protection afforded by the litigation privilege is to ensure that cease and desist statements are made in the context of litigation. Therefore, it is essential that such communications appropriately reflect serious contemplation of litigation to assure application of the privilege.

 

When prepared properly as a privileged document, the cease and desist letter can be an effective tool for avoiding litigation costs by prompting settlement discussions before litigation ensues.  A carefully crafted cease and desist letter drafted by an attorney will save you both the headache and cost of future litigation.

 

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Real Estate Attorney Rick Dunn follows the mortgage market closely, and found the attached article interesting. While the upward trend in the frequency of homeowners seeking to refinance ended late last year, he is now seeing another (smaller) increase in this area.  The uptick was called a refinance “Boomlet” by a blogger at AOL.com.

See the post here: http://realestate.aol.com/blog/2014/10/30/30-year-mortgage-rate-rises-to-just-below-4/

 

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Condominium unit owners, board members, and community association representatives from across the Commonwealth gathered at the Radisson Hotel in Chelmsford to hear six experts discuss issues facing our community association clients. The experts included a property management professional, two condominium attorneys, an insurance executive, an engineer and a certified public accountant. Questions spanned the realm of the practical and the unique, voicing concerns such as:

Can we prohibit smoking in the common areas?

What amounts can we collect in connection with unpaid assessments?

What is the status of the “super” priority lien in Massachusetts?

How should we enforce our documents?

How do we best deal with unit owner disputes?

Does an association need to have a certificate of election for the trustees recorded?

Can fines be treated as condominium fees pursuant to the “super” lien statute?

Can you prevent unit owners from utilizing the common areas if they have not paid their condo fees?

Board members appeared to benefit not only from the experts, but also from sharing their experiences with each other. An additional benefit for the P&A Staff was the opportunity to interact socially with a number of familiar faces as well as new participants - many of whom commented on the value of the program.

Of course, the real highlight of the event was when, first thing in the morning, Attorney Charlie Perkins led the P&A Team and the audience in a performance of his song “C.C.A.I.”, a parody of the Village People song “Y.M.C.A”. It set the tone for an upbeat and productive program.

P.S. For answers to the above questions or any other related issues, please do not hesitate to email Attorney Eriksen at seriksen@perkinslawpc.com

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We welcome Michelle who began as our receptionist (a job now performed by Nichole Cincotta) and quickly moved over to the Pre-Litigation section of the Lien Enforcement Team where she is teaming up with Amanda Luciano, a 5 year veteran at the position. Michelle has a great deal of experience in Real Estate Law and related tasks.  She lives in Westford with her husband Tom. Add a comment

It was five years ago today that we moved from the fabulous old brick mill building in North Chelmsford to our fabulous new space in Westford. After a two year search for office space to purchase, Managing Partner Rob Anctil decided on the upper floor of the 35,000sf industrial building at 6 Lyberty Way – the former home of Whistler Radar Detectors.

Paralegal Amanda Luciano recalls working until 11pm the night before the move, packing boxes and keeping the movers on track, not to mention taking a final exam in the middle of the day (of course she graduated with a 4.0 GPA). Pia Anctil, acting as General Contractor, finished the build-out from R&D space to the office in 90 days (!).  She remembered that first morning the conference room had only a folding table covered by a table cloth while employees worked at their computers without benefit of a desk.  Lying on the floor while typing seemed to be the preferred method of getting the work out.  That was on Friday morning but by Monday, the furniture was in place and the seamless transition was complete.  Pia extends thanks to the architects at Udelsman Associates in Hollis, NH and the builders at Focus Construction in New Ipswich, NH for their fine efforts.

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Nichole Cincotta is Perkins & Anctil’s new receptionist and legal support to Attorney Alley.  She grew up in Dracut, MA where she learned to dance competitively, a pursuit that provided opportunities for her to travel internationally.  Her administrative and customer relations experience allows her to smoothly assist clients by directing them to the appropriate staff and/or attorney.  She has the enthusiasm, initiative and ability to anticipate clients’ needs that make her a welcome addition to the Perkins & Anctil Team.  Nichole is a graduate of the UMass Lowell with a B.A. in Criminal Justice and minors in Psychology and Legal Studies. 

 

 

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We congratulate our clients and friends - Rich Cooper and Chris Ferris - on their recent acquisition of the property at 128 Main Street, Groton, the former location of the historic Groton Inn. The Groton Inn was constructed in 1678 and was thought to be one of the longest continuously operated inns in the United States. The list of people who left their names on the Groton Inn’s register includes Presidents Ulysses S. Grant, Grover Cleveland, Theodore Roosevelt and William Howard Taft. Andrew Carnegie and Paul Revere also stayed at the historic property.  Groton residents and neighbors were extremely dismayed to learn that the building burned in 2011.

However, Chris and Rich have approvals to construct a modern iteration of the inn, paying homage to the form, scale, materials, siting and other aspects of the historic property. Guest rooms and a restaurant will occupy the main building and an array of detached guest houses will be built toward the rear of the property.

For more information about the history of the Groton Inn, email P&A and we will forward a PDF containing the National Register of Historic Places nomination written by a local historian in 1976.

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This month’s edition of New England Condominium contains a piece by Attorney Scott Eriksen.  In it he answers a reader’s question about how to deal with an unknown unit owner suspected of purposely running a faucet in order to increase the association’s water bill.  While the motivation for such malicious behavior is a mystery, Attorney Eriksen provides a number of strategies for discovering the unit owner and dealing with the problem.  Click here for his answer. Add a comment
Trial attorney Kim Alley’s competitive streak extends well beyond the courtroom.  Last weekend, Kim successfully completed her first road race – the 13.1 mile Bay State Half Marathon in Lowell.  Kim finished the race which loops twice from the Tsongas Arena along the Merrimack River to the Rourke Bridge and back in 1 hour and 56 minutes, beating her 2 hour goal by 4 minutes.  Kim finished in the top 24% of women out of the 1641 total competitors.    Not bad for a first race!  That could be because Kim received her training pointers from her sister, a semi-professional athlete and trainer in Colorado, who mistakenly believed Kim was training for a full marathon.  The extra training helped Kim to finish strong and even has her thinking of attempting a full marathon for her next race. Add a comment
The staff of Perkins & Anctil are excited to announce that Cindy Napoli has joined our firm as the Paralegal Secretary to Senior Partner Charlie Perkins and Bankruptcy and Collections Department Head David Chenelle.  Cindy lives in Littleton and has been acquainted with Managing Partner Rob Anctil for many years.  Cindy graduated from Mt. Ida College with an A.S. in Paralegal Studies and has over 25 years experience.  Her personality, education, and extensive knowledge make her a valuable part of our team. Welcome, Cindy! Add a comment
He is a four-month-old mixture of black Labrador retriever and some other unknown breeds who came to Managing Partner Rob Anctil and his family from Arkansas. Rob’s wife Pia contracted with an organization called Paws and Claws Rescue of Hot Springs, AR to deliver Stratton to Connecticut where they were introduced to their new family member (originally named Howard).  Stratton works with Pia in the office every day and will celebrate his first birthday next July 4th.  Visit the rescue organization at pawsandclawsrescue.org. Add a comment

Perkins & Anctil, P.C., wishes to remind its client and business contacts that The New England Condo & Apartment Management Expo will be held at the Seaport World Trade Center – Exhibit Hall at 200 Seaport Boulevard, Boston, MA on Tuesday May 21, 2013 from 10:00 am – 4:30 pm.

If you have attended in the past, then you are aware that this is a unique opportunity to meet with over one hundred vendors of all types that specialize in serving the condominium industry.  Further, seminars and other opportunities to obtain information make the day a premier educational opportunity for all attendees. We hope to see you there!

Visit event page here

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In order to stay afloat financially, Patriot Coal Corporation files for Chapter 11 Bankruptcy, which includes a plan to cut a significant amount of retiree benefits for the employees of the company.

"(Reuters) - Patriot Coal Corp has asked a court to terminate about $1.6 billion in retiree health benefits for thousands of its unionized U.S. mine workers as part of its plan to survive Chapter 11 bankruptcy, a court filing showed.

Patriot said United Mine Workers of America's (UMWA's) labor costs are not competitive with other coal producers that operate 'under more flexible work rules and a significantly lower labor cost structure.'"

(Read full article)

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Americans without health insurance are fittingly burdened with the highest medical bills; however, these patients comprise an overall population of people who already struggle financially, and who ultimately are unable to pay off their medical debts sans coverage.

Uninsured American Get Hit With Biggest Hospital Bills

"By the time Astra Augustus left Virtua Memorial Hospital in New Jersey after the last of four surgeries, she’d run up about $255,000 in bills.

At first, Augustus said, she thought she was lucky. Virtua gave her a charity discount, to $30,530. Then she got statements from the doctors who treated her in the hospital, adding $18,000. “I didn’t know who to pay first,” Augustus said..."

(Read article)

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In the unfortunate case of Kensington Place Owners Assn., Inc. v. Thomas, A Georgia Appeals Court finds that a homeowners' association is ultimately not responsible for a child's fatality, which occurs on the property of the condominium.  While the circumstances surrounding the case are undoubtedly tragic, the association clearly presents several merit-worthy arguments.

Risks and Liabilities: A Georgia appeals court ruled that a homeowners association was not liable for fatal injuries suffered by a child who pushed a dead tree over in the subdivision common area. 

Tenita Thomas lived in Kensington Place subdivision with her 13-year-old son, Christopher Baxter. On April 10, 2008, while Baxter and his friends were playing in the subdivision’s wooded common area, they came upon a dead tree. The three boys alternated pushing the tree and watching the others push it. One of the boys recorded their actions on his cell phone camera.

(Read more)

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The following article presents a case in which a Louisiana Condominium Association sues a unit owner for offering and selling art lessons out of her home, citing that such commercial activity is strictly prohibited.

In-Home Art Studio Violates Commercial Use Restriction

Bayou Terrace Estates is a subdivision in St. Amant, La., which is managed and regulated by Bayou Terrace Estates Home Owners Association, Inc. (association). Jessica Stuntz purchased a home in the subdivision in October 2006, and immediately began providing art lessons in her home.

(Read full article)

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The following article elaborates on how a serious case of bedbugs and a condominium unit owner’s neglect to address such resulted in an interesting, yet entirely valid Court case:

Association sues Evanston condo owner over bedbug extermination

“A condominium association in Evanston is suing a man, claiming he refused to let the association treat his unit for bedbugs.

In September 2011, the Maisonette Condominium Association discovered a bedbug infestation at its building on the 2000 block of Sherman Avenue in Evanston, according to the lawsuit filed Tuesday in Cook County Circuit Court.”

Read Full Article Here

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As the following article explains, record low borrowing rates continue to stimulate home sales, which is proving to be beneficial to the housing market as unemployment rates remain less than optimal.  In response, mortgage firms are hiring new staff in order to accommodate the drastic increase in sales.

Mortgage firms betting on continued recovery

Wells Fargo Home Mortgage and other lenders increasing their staffs as home sales and values increase.

"DES MOINES, Iowa -- Mortgage companies are betting that the nascent housing recovery of 2012 has legs by beefing up their staffs to accommodate the continued expansion in lending, sales and construction that many economists forecast this year..."

(Read full article)

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By: Scott Eriksen, Esq.

In the condominium world, fines are always a hot topic.  Most condominium documents permit associations to impose fines when owners or their tenants run afoul of use restrictions.  For example:  Is a unit owner’s dog darting around the common area without a leash?  Fine. (Well, not ‘fine’ – rather, impose a fine.)  Tenant smoking in the common areas?  Fine.  Parking violations, improper use of pools or other amenities, littering?  Fine, fine, fine.  It is fairly routine for associations to fine unit owners and so many may wonder: What is the likelihood of collecting the fine?  This question especially springs to mind when the fine may appear to be ‘excessive.’

The ability to collect ‘excessive’ fines was recently the subject of Reed v. Zipcar, Inc., 2012 U.S. Dist. LEXIS 106371, 1-20 (D. Mass. July 31, 2012).  Naomi Reed, a Zipcar customer, filed a class action against Zipcar.  Zipcar, as most city-dwellers know, provides “wheels when you want them” in the form of a car-sharing service.  To become a Zipcar member, customers sign an agreement by which they promise, among other things, to pay a fee if they fail to return a car on time.

In her complaint, Ms. Reed claimed that she incurred excessive fees when she was late to return a vehicle.  Reed challenged the late fees on three grounds: first, that they were an “unlawful penalty”; second, that they unjustly enriched Zipcar at the expense of its customers; and, finally that they constituted a violation of the Massachusetts Consumer Protection Act (“c. 93A”).

On a hearing on Zipcar’s motion to dismiss, Judge Gorton quickly disposed of Reed’s first two claims, but gave notable attention to the c. 93A claim.  Ms. Reed argued two theories in support of her c. 93A claim. The first theory was that the late fees were “grossly disproportionate” to the damages to Zipcar. The court disagreed.  Unlike Ms. Reed, the court thought that quantifying Zipcar’s damages from late vehicle returns would not be an easy task.  Noting it would not be “as simple as multiplying the minutes late by an hourly charge…” the court considered that Zipcar would also have to factor in “expenses associated with managing the logistics of late returns … and the reputational harm caused by the frequent late return of vehicles.” Without being able to demonstrate what a “reasonable” harm might be for a late vehicle return, the court held that Reed could not show that the actual late fees were “grossly disproportionate.”

Ms. Reed’s second theory was that the late fees were “unconscionable.”  Again the court disagreed.  Judge Gorton found that the fees were not “procedurally unconscionable” since Zipcar was simply enforcing the terms of its membership agreement.  The court also held that the late fees were not “substantively unreasonable” simply because they were higher than those of Zipcar’s competitors.

Before wrapping up its c. 93A analysis, the court also noted that Zipcar had “good reason for charging high late fees.”  This reason, according to the court, was that the company’s “continued success in the burgeoning car-sharing market” depended on its reputation for living up to its slogan and delivering “wheels when you want them.”  Thus, in the end, despite giving credit to Reed’s deft attempt, Judge Gorton resolved that “just as one cannot get blood from a stone, some allegations, no matter how well articulated, do not give rise to a claim for relief.”

Now, if you have made it this far you have no doubt noticed that the Reed case has literally nothing to do with condominiums.  At first glance, the case may not seem at all relevant for associations.  Contract and c. 93A claims generally fall flat in the condominium arena, and we have yet to see an association participating in the car-sharing game.  However, in its analysis of Reed’s c. 93A claim, the Court raises a number of arguments which may serve as useful precedent in an action to defend condominium fines:

1.          First, to successfully contend that fines are “grossly disproportionate” may require some showing of what a “reasonable” fine would be.  In many cases, this would no doubt be difficult to establish.  Consider the following: when an owner violates a rule that requires cars to be removed from parking areas in the event of a snowstorm, what is a “reasonable” measure of the damages for such violation?  The calculus is arguably more complicated than the simple cost of clearing snow from around the spot after the fact.  For example, there are administrative costs associated with each step of the fine process – identifying the vehicle, informing the Board/property manager, removing the vehicle, clearing the snow, imposing the fine, following up, etc.  In an isolated incident these costs may be quantifiable, but for an association dealing with multiple offenders, the determination may not be so simple.

2.         Second, it should come as no surprise that an individual may not generally allege that fines are “unconscionable” where the individual “freely agreed” to subject himself to the same by purchasing the condominium unit.

3.         Finally, like Zipcar, most condominium associations have a good reason for imposing fines.  A successful association is a harmonious association.  Abiding by the same rules as your neighbors should not be onerous; nevertheless, it is our experience that the occasional unit owner needs a gentle reminder of this courtesy and obligation.  Fines – for better or worse – are a useful tool in ensuring that each owner is aware of and abides by the rules to which they have agreed to live by.

While this article may seem light-humored, we do not mean to belittle the decision of whether imposing fines – as opposed to a written warning or some other action – is a proper first course of action in response to a violation.  Furthermore, even if fines are permissible under the condominium documents, it is important for any association to be consistent in the application and pursuit of the same.  We strongly recommend that the Board or property manager contact counsel regarding how best to deal with any serious or repeated violations of the condominium documents.

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