All posts by Chris Buckley

FBI releases hate crime stats

Indiana Lawyer Full Article

More than 9,000 offenses in the U.S. in 2008 motivated by bias to particular groups of people were reported to the FBI in 2008, according to the FBI’s Uniform Crime Reporting Program that publishes those statistics, the FBI announced today.

Prosecutor misconduct leads to reversal

Indiana Lawyer Full Article

The Indiana Court of Appeals reversed a defendant’s conviction of intimidation because several acts of misconduct constituted fundamental error. The appellate court also ruled the man could be retried on the charge.

In Marlow J. Lainhart v. State of Indiana, No. 24A01-0904-CR-184, Marlow Lainhart appealed his Class A misdemeanor conviction of intimidation, in which he was found guilty of communicating a threat to another person with intent to place the victim in fear of retaliation for a prior lawful act.

Financial Decisions to Make as You Divorce

RON LIEBER, New York Times Columnist

Divorce may be one of the most damaging financial events in the lives of those who go through it, but that isn’t always immediately clear to a couple about to split up.

In fact, the first response is probably emotional — whether exhaustion and sadness at having failed to save the relationship after years of struggle or shock when your spouse walks out. Then, perhaps, comes the resolve to shield the children.

It seems almost tone-deaf at that point to suggest that you write a new budget.

But as you get swept up in the rage, the disappointment and the worries, money will intrude whether you like it or not. You should expect that choices with huge financial implications will come at you with intense speed during a divorce, and they’re probably not the sort of decisions you’re used to making.

One of the first will affect how much you spend on legal fees. Should you try mediation, which can be relatively low-cost, or a newer process known as collaborative divorce? Or should you just go for the bare-knuckles approach?

And as you get sucked into the legal vortex and the cost and complications of setting up a second household, it becomes easy to lose sight of longer-term financial concerns. The list of things to think about ahead of time, from health insurance to your credit history to taxes, turns out to be much larger than you might think. People often neglect or fail to consider many of them beforehand.

So this week, I assembled that list, with help from readers and members of the Institute for Divorce Financial Analysts. The institute certifies financial planners and other professionals who specialize in helping people whose marriages have ended.

You may be willing to pay any price to remove yourself from a toxic marriage with the least amount of haggling. Many more of you, however, are probably seeking an equitable split, but have no idea what to budget for or evaluate.

So this list is a place to start. Please post additions to it in the comments with the related post on the Bucks blog.

HEALTH INSURANCE
If you are on your spouse’s health insurance plan, you won’t be able to use it once you’re no longer married. The government’s Cobra rules allow you to continue coverage for up to three years, but you have to pay the premium yourself, which may not be affordable once you’re shouldering rent or a mortgage alone.

“I thought, ‘This isn’t going to be difficult,’ ” said Shira Silverman, 34, of the Bronx, who is getting divorced. “And then I looked it up and realized it was almost impossible.” Ms. Silverman works as a freelancer and doesn’t have access to insurance through work.

Some people who are older or have pre-existing conditions find that they can’t get health insurance at all. Whatever your situation, it’s best to know what insurance will cost you before the divorce is final. That way, you can negotiate a settlement that covers the premium or find cheaper housing so that you don’t have to do without health insurance.

MENTAL HEALTH
Barbara Shapiro, a financial planner and divorce specialist with the HMS Financial Group in Dedham, Mass., refers to the dissolution of marriage as death without a body. The mourning and trauma that results for you (and your children, if you have any) may make therapy necessary.

David Wanderman, who got divorced earlier this decade and has seen a therapist for many of the years since, said this was not a place to skimp. “The reality is, I kind of have no choice,” he said. “These are things that are bigger than myself, and I’m not equipped to understand them.”

Mr. Wanderman, 45, a wedding and event photographer in Manhattan, went without health insurance for a while and hunted down low-cost therapists in public clinics and elsewhere. Other people with higher income, however, may need to pay $100 or more for sessions if their health insurance doesn’t cover them or has a high deductible.

CREDIT
It’s easy to let the bills slip when you’re huddled with lawyers and no longer speaking to your spouse. But letting things slide can do lasting damage to your credit, and it can happen in a number of ways.

Liz Pulliam Weston, author of “Your Credit Score: Your Money & What’s at Stake,” suggests canceling jointly held credit cards and transferring any balance that a spouse is responsible for to a card in that spouse’s name.

You should also try to get your name removed from the mortgage if you are no longer responsible for the payments. If your spouse pays late, accidentally or on purpose, it will hurt your credit. That will complicate your ability to refinance, get a new mortgage or apply for an auto loan when you’re on your own.

HIRED HELP
Once there are no longer two of you around, you may have to hire others for everything from yard maintenance and home repair to babysitting. This cost ought to be part of your budget — and negotiations.

KEEPING HOUSE
When a couple splits, one member of the household often has a strong desire to keep the family home, perhaps to provide some continuity for the children. After a few years of being house rich and cash poor, however, reality sets in and the house goes up for sale.

The problem at that point, according to Donna Cheswick of BPU Investment Management in Greensburg, Pa., is that you’re solely responsible for all the costs of selling, including paying the real estate agent and sprucing up the house. So it’s best to be brutally realistic before the divorce is final about the costs of staying in your house.

TAXES
Once someone buys that house, there may be capital gains taxes to pay if it has appreciated more than $250,000. This may seem like a high-class problem in this market. But if you had decided to sell it before the divorce was final, you and your spouse might have had a $500,000 exemption from capital gains instead of just half that.

In general, it’s crucial to consider the after-tax value of everything, from retirement accounts to deferred compensation when splitting up assets. Annette Brown, a divorce specialist in San Francisco, also noted that judges sometimes failed to consider which spouse could best benefit when awarding the right to future tax deductions and credits relating to the couple’s children.

SPOUSAL EDUCATION
Haven’t worked for a while? You may need retraining or a new degree entirely. Gary L. Zaugg, a financial planner and divorce specialist in Virginia Beach, noted that some divorce settlements assumed that a few years of alimony ought to be enough to pay for this. If you expect the costs to be steep, however, they probably ought to be a separate line item in the settlement or at least part of the negotiation.

TEENAGERS
If you have joint custody of your children, you may end up buying computers, clothes and other items for their second residence. What many couples don’t anticipate or budget for if their children are small, however, are the extra costs of the teenage years.

Disagreements about what is truly necessary are practically inevitable. If you don’t want your child to do without, you may end up paying the full bill for all sorts of new costs, according to Lori Dolan Frymark of Morgan Stanley Smith Barney in Pasadena, Calif.

She ticked off the following list for starters: prom expenses, cheerleading, sports gear, cars and car insurance, allowance and college visits and applications. The actual cost of college is a big one, too. And don’t forget cellphones.

FUTURE LEGAL COSTS
Even after tallying up all of the above, you still have to consider that years later, your spouse may come after you for more money or try to pay less after a job loss. Then you’re liable for another four or five figures in legal bills.

While you may not want to earmark emergency funds just for that, the larger point is this: Long after you move on emotionally, divorce may haunt you financially.

This is not a reason to stay in a marriage that is making you miserable. It’s just a reminder that without a lot of planning while you’re in the middle of it, divorce may never have a happy financial ending.

Hammond Legal aid clinic sees a surge in demand

‘More people on brink of crisis,’ director says

NWI Times Article

HAMMOND | Uncertain circumstances triggered by the economy have brought record numbers of residents to the Hammond Legal Aid Clinic’s downtown offices for help.

The nonprofit agency just completed its fifth year of pro bono, or free, legal services, and applications for advice and demand for help with employment-related problems have increased, clinic director Kris Costa Sakelaris said.

Records the clinic keeps list more than 1,600 residents who have sought legal support since the clinic opened in 2004, with nearly 400 visiting the offices, 5261 Hohman Ave., this year.

People in the past have asked for help with family law, consumer finance and housing, Sakelaris said, but this year, problems relating to Medicare benefits, predatory lending and unemployment benefits top the list for applicants.

“It seems like we have seen more people on the brink of crisis than ever before,” Sakelaris said. “Many families are not only facing some legal problem but are worried about how they will keep a roof over their head or provide the next meal.”

Agreements with other institutions — the Valparaiso University School of Law and Calumet College of St. Joseph’s Paralegal Program — enhance the clinic’s staff. Also, lawyers who have contracts with Hammond provide pro bono hours at the clinic.

But there is still a very large gap between the needs of low-income residents and the free legal help that’s available, said Sakelaris, a former Lake Superior Court magistrate.

“The current state of the local and national economy has pressed people to their limits financially,” she said.

Funded through casino taxes, Mayor Thomas McDermott Jr. created the clinic to help elderly and low-income residents. McDermott cited his externship experiences while attending the University of Notre Dame Law School as inspiration.

“Everybody needs some type of legal assistance,” McDermott said. “But not everybody can afford a private lawyer.”

The legal aid clinic received the Randall T. Shepard Award last year from the Indiana State Bar Association for excellence in pro bono work.

Named for Indiana Supreme Court Chief Justice Randall T. Shepard, the award recognizes contributions that ensure legal services are available to people who otherwise could not afford them.

The clinic can’t discuss its specific successes because of confidentiality rules, Sakelaris said, but many residents have expressed appreciation through letters and in surveys they filled out after they were helped.

For more information, call the Hammond Legal Aid Clinic at (219) 853-6611.

If Lenders Say ‘The Dog Ate Your Mortgage’

GRETCHEN MORGENSON, New York Times Columnist

FOR decades, when troubled homeowners and banks battled over delinquent mortgages, it wasn’t a contest. Homes went into foreclosure, and lenders took control of the property.

On top of that, courts rubber-stamped the array of foreclosure charges that lenders heaped onto borrowers and took banks at their word when the lenders said they owned the mortgage notes underlying troubled properties.

In other words, with lenders in the driver’s seat, borrowers were run over, more often than not. Of course, errant borrowers hardly deserve sympathy from bankers or anyone else, and banks are well within their rights to try to protect their financial interests.

But if our current financial crisis has taught us anything, it is that many borrowers entered into mortgage agreements without a clear understanding of the debt they were incurring. And banks often lacked a clear understanding of whether all those borrowers could really repay their loans.

Even so, banks and borrowers still do battle over foreclosures on an unlevel playing field that exists in far too many courtrooms. But some judges are starting to scrutinize the rules-don’t-matter methods used by lenders and their lawyers in the recent foreclosure wave. On occasion, lenders are even getting slapped around a bit.

One surprising smackdown occurred on Oct. 9 in federal bankruptcy court in the Southern District of New York. Ruling that a lender, PHH Mortgage, hadn’t proved its claim to a delinquent borrower’s home in White Plains, Judge Robert D. Drain wiped out a $461,263 mortgage debt on the property. That’s right: the mortgage debt disappeared, via a court order.

So the ruling may put a new dynamic in play in the foreclosure mess: If the lender can’t come forward with proof of ownership, and judges don’t look kindly on that, then borrowers may have a stronger hand to play in court and, apparently, may even be able to stay in their homes mortgage-free.

The reason that notes have gone missing is the huge mass of mortgage securitizations that occurred during the housing boom. Securitizations allowed for large pools of bank loans to be bundled and sold to legions of investors, but some of the nuts and bolts of the mortgage game — notes, for example — were never adequately tracked or recorded during the boom. In some cases, that means nobody truly knows who owns what.

To be sure, many legal hurdles mean that the initial outcome of the White Plains case may not be repeated elsewhere. Nevertheless, the ruling — by a federal judge, no less — is bound to bring a smile to anyone who has been subjected to rough treatment by a lender. Methinks a few of those people still exist.

More important, the case is an alert to lenders that dubious proof-of-ownership tactics may no longer be accepted practice. They may even be viewed as a fraud on the court.

The United States Trustee, a division of the Justice Department charged with monitoring the nation’s bankruptcy courts, has also taken an interest in the White Plains case. Its representative has attended hearings in the matter, and it has registered with the court as an interested party.

THE case involves a borrower, who declined to be named, living in a home with her daughter and son-in-law. According to court documents, the borrower bought the house in 2001 with a mortgage from Wells Fargo; four and a half years later she refinanced with Mortgage World Bankers Inc.

She fell behind in her payments, and David B. Shaev, a consumer bankruptcy lawyer in Manhattan, filed a Chapter 13 bankruptcy plan on her behalf in late February in an effort to save her home from foreclosure.

A proof of claim to the debt was filed in March by PHH, a company based in Mount Laurel, N.J. The $461,263 that PHH said was owed included $33,545 in arrears.

Mr. Shaev said that when he filed the case, he had simply hoped to persuade PHH to modify his client’s loan. But after months of what he described as foot-dragging by PHH and its lawyers, he asked for proof of PHH’s standing in the case.

“If you want to take someone’s house away, you’d better make sure you have the right to do it,” Mr. Shaev said in an interview last week.

Teen pleads guilty; trial for parents set

Post-Tribune Full Article

VALPARAISO — A Hebron boy charged as an adult for pistol-whipping a robbery victim pleaded guilty Tuesday.

Miles Michael Folsom, 16, admitted to felony robbery, criminal confinement and an unrelated burglary as part of his plea agreement.

At his Jan. 15 sentencing, he faces up to 20 years in prison if he serves all charges concurrently or up to 60 years if he serves them consecutively.

Transfer story with a twist

Yergler’s move from Kouts being contested by receiving school

Post-Tribune Article

I swore off writing about transfer cases and the Indiana High School Athletic Association a few years ago. It’s easy to beat up on Darth Vader all the time. At some point, it’s time to move on and let the lawyers have some fun. There are too many other good stories to chase.

Here is my position, though.

The IHSAA has it all wrong on trying to regulate the business of who goes where and when someone should be given full eligibility and only limited eligibility for a year because it was ruled that the player moved from one high school to another for athletic reasons. The IHSAA doesn’t have the resources to police Indiana in a fair way. Let it go or figure out a way to rewrite the current policy to hold the IHSAA accountable for all the wasted money and time spent defending these cases. Then maybe the IHSAA would be a little bit more prudent about pursuing these cases.

I’ve written on both sides of the issue from Evan Schmidt, a 7-footer from Chesterton who curiously moved to the Wheeler school district for his senior year but went to Valparaiso and hardly played at all on a team that featured Scott Martin and Rob Hummel, to the IHSAA’s foray into the Angel Garcia saga. The IHSAA tried like heck to prove there was something sinister and something wrong with Garcia’s move from a prep school in Illinois to Indiana but it was wrong. And the IHSAA was pummelled in a court of law at every turn for being wrong.

Again and again and again, smart lawyers like Mike Jasaitis of Crown Point have argued successfully either before a judge or a case review panel, which isn’t occupied by IHSAA commissioners or rubber stamp athletic directors, for full eligibility for student athletes who get stiffed by the arbitrary nature of the IHSAA policy.

I’m jumping off the bandwagon today for the latest knucklehead foray into our judicial system by the IHSAA because this case was just too good to pass up.

On Thursday, Nick Otis, a LaPorte attorney and son of Valparaiso High School basketball coach Joe Otis, will defend Winston Yergler, a sophomore basketball player at North Judson who transferred from Kouts, at a preliminary injunction hearing in LaPorte. He will ask a judge to reinstate Yergler, who was ruled to have limited eligibility (he has to sit out a year because it was decided he left for athletic purposes) by the IHSAA in an initial ruling and then in an appeal.

Yergler is a promising, but not great, point guard who played varsity last season. His dad, Greg Yergler, is in sales. He is also a certified IHSAA official who is well versed in the rules. He moved to North Judson to be more centrally located for his job, which requires travel throughout the state. He wanted his son to be able to continue his basketball career uninterrupted.

The Kouts athletic director signed off on the transfer.

North Judson, amazingly, didn’t.

Why, you ask, would the receiving team of a pretty good player — one who could help the team — want to doubt the student’s intention for leaving?

Well, because the principal, Kelly Shepard, has a son on the junior varsity team who plays point guard. It seems that Yergler is a threat to him and his playing time — at least that is what Otis believes.

“That just raises lots of red flags,” Otis said of Shepard, who had alerted the IHSAA to Yergler’s situation.

Shepard didn’t return a phone call for comment.

This, my friends, is small-town school politics at its worse. Doesn’t Shepard have something better to do, like run a school?

The IHSAA only flags cases if one of the parties protest on the transfer form. Otherwise, it just moves on. So when three players from West Side follow John Boyd to Michigan City, no one bats an eye if both schools sign off on the deal. This is what happened with Alajuwon Edwards, Reggie Clay and Taylor Lavery.

In Yergler’s case, assistant commissioner Bobby Cox was supposed to conduct an investigation.

He never did. Never called Yergler. Never bothered to call Kouts. Never looked into any of it even though IHSAA Commissioner Blake Ress and their attorney have called this an extraordinary situation because the receiving school is complaining. It never, ever happens that way.

The appeals process was pretty distasteful with some fairly pointed questions coming from the panel about Yergler’s financial situation.

“It wasn’t fair,” Otis said.

That’s why Otis wants his day his court with his client with an impartial, sensible judge, where he has a better than good chance of turning this into a slam dunk for Yergler.