Relevant Changes in Virginia Law - 2019 Edition

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

As I have done every Spring since I began this blog, today I will be giving a summary of new laws
that impact or influence topics covered by this blog - particularly those that may impact posts I have previously made here.

All laws listed here are effective as of July 1, 2019.

Single Filing Uncontested Divorces

Uncontested divorces in Virginia are frequently legally simple, but procedurally complex.  By this I mean the actual law regarding handling of these divorces is simple, but the actual process of getting them done is complex, and frequently requires lawyers to be involved in even the simplest uncontested divorces.  One of the annoyances of handling uncontested divorces is that they require a minimum of two trips to the courthouse.  First, you have to go to file your Complaint for Divorce to open the uncontested divorce.  Then, you can proceed with all your remaining paperwork - a waiver of service of process, affidavits, and the Final Decree itself.  This is all because, as a general rule, someone cannot waive service of process or complete an affidavit in a court case that does not yet exist.  However, HB 1945 has now changed this by adding an exception to this general rule, allowing uncontested divorces to proceed where a waiver of service and affidavits were signed a "reasonable amount of time" prior to the case being opened.  The practical impact of this is that an uncontested divorce will now be able to be completed with a single trip to the courthouse - all paperwork can be prepared in advance and filed at the same time.  This will make uncontested divorces a little less complicated, a little less time consuming, and, hopefully, a little less expensive.

Tenant's Redemption Right Dramatically Expanded

In October of 2014, I wrote a post about a special provision in the law for tenants called a "redemption."  A redemption is almost like a get out of jail free card for a tenant - it allows a tenant, once every twelve months, to avoid being evicted by paying all rent due, late fees, court costs, and attorneys' fees after a five day pay or quit has been served and eviction proceedings have begun.  Pay the right amount on time, and the eviction process is terminated.

Well, as I noted at the time, there's a big catch.  You cannot dispute the amount owed, and you have to pay the redemption at or prior to the first court date (the first return).  HB 1898, however, has changed this.  Now, under the new law, a redemption can be paid up until two days before the eviction itself is carried out (so, after the first return, after the trial, and after the writ of possession has been issued).  This means a tenant can now have his day in court to challenge the amount he or she supposedly owes without losing their right to redeem.  Now, there's another catch.  HB 1898 only applied to Virginia Residential Landlord and Tenant Act (VRLTA) leases.  You may recall from my changes in the law blog post last year, that all differences in the law between the VRLTA and common law/chapter 13 residential leases had been abolished.  Well, HB 1898 (along with one or two more minor law changes) this year applied only to VRLTA leases, and as a result have again created differences between the two.  I honestly believe this was an unintentional oversight by the General Assembly, and will be fixed, but it does emphasize the point that if we really want all residential leases to be treated the same, it's time to just make the VRLTA applicable to all residential leases (or, alternatively, repeal the VRLTA and make chapter 13 applicable to all residential leases).  So, changes along those lines may be coming - stay tuned.

Writ of Eviction Established

Speaking of writs of possession, however, they will actually no longer exist as of July 1st.  SB 1448 changes the name "writ of possession" to "writ of eviction," and provides that such writs must be issued within 180 days of the court order granting possession, and must be executed within 30 days of being issued.

Contract Statute of Limitations Loophole Closed

You may recall from my blog post on statutes of limitations that the statute of limitations in Virginia for a written contract is 5 years, but for an unwritten contract is 3 years.  Not mentioned in that post, but also important to note, is that Virginia law has a catch-all, which says the statute of limitations for any common law lawsuit for which a specific statute of limitations is not set out in the Code is 2 years.  In recent years, defendants discovered a rather devious loophole that a number of courts upheld - namely a contract that was written, but not actually signed.  The fact that the contract was written meant that it could not be an unwritten contract, as specified in statute for the 3 year statute of limitations, but the fact that it was not signed meant it could not qualify for the 5 year statute of limitations for a written contract (as the Code specifically required the writing to be signed by the party being sued for the 5 year statute to apply).  As a result, several defendants sued after two years but before three years, successfully convinced courts that the catch-all 2 year statute of limitations applied, and got their cases dismissed.  HB 2242 now closes this loophole by making written but unsigned contracts specifically subject to the 3 year statute of limitations.

Conclusion

This year's General Assembly session did not produce as many game changers as last year's, but nonetheless provided some very exciting modifications.  I am particularly looking forward to integrating single filing uncontested divorces into my practice.

Short Topics - Virginia Law on Lease Non-Renewals, Terminating Child Support, and more

Before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Quite often, I will put up a blog post that breezes over a sub-topic of sorts, noting that the true details of that issue probably warrants a post of its own.  It shouldn't be surprising, though, that often times on the opposite end of the spectrum I get questions or encounter issues that I'd love to discuss on this blog, but are issues that also have relatively short answers and don't really warrant their own blog post.  Over the three and a half years I've been doing this blog so far, those topics have added up, so I'm hoping to finally put together a series of posts addressing a number of those "short topics" - ideas that warrant discussion on my blog, but probably don't warrant their own dedicated post.

Today's blog post will cover settlement issues in a multi-defendant lawsuit, divorces where one spouse's location is unknown, termination of child support, and refusals to renew a lease.

What happens if you're one of several people being sued and the other side offers a settlement, but you're the only one that wants to accept it?

So, we all know that in a lawsuit, multiple people can be sued at the same time for the same thing.  Just because you're all co-defendants in a lawsuit, however, doesn't mean you get along, or are united in your case strategy.  If the plaintiff offers a settlement proposal and your co-defendants don't want to accept it but you do, what can you do?

Well, first understand that if the proposal is presented to all of you, then that specific proposal must be accepted by all of you to be valid.  However, you could take several approaches.  You could personally make a counter-offer to the plaintiff offering to pay your share of their offer in exchange for your personal removal from the case.  Alternatively, you could agree to pay the entire amount of their proposal, and have the whole case dismissed.  The first option is much less expensive for you, but also less likely to be accepted.  The second would almost definitely be accepted, and there would be nothing your co-defendants could do to stop you.

However, without reaching your own personal agreement with the plaintiff, there is nothing you can do to force your co-defendants to accept an offer.

My husband left and I have no idea where he is - how do I get divorced?

Most people are aware that a divorce is a form of legal action and that in order to start a legal action you need to "serve" the other side with papers.  The historic reason for this is that service of process is how the court gains personal jurisdiction over someone - in other words, how the court gains power over a person.  However, there are two types of personal jurisdiction - in personam (power over the person), and in rem (power over a "thing" or "property").

In most legal situations, you need "in personam" jurisdiction, because that's the only jurisdiction that can allow for a court order that in some way attaches to a person - affects all of their rights and properties.  A court cannot impact a person directly without having in personam jurisdiction.  However, there are situations where the real issue is a specific piece of property, but not necessarily a person, that can be brought under the court's control, and so that property is all the court needs jurisdiction over.  Some examples of cases involving in rem jurisdiction would be a case to determine the legal owner of a disputed piece of property or civil asset forfeiture cases (where the government seeks to seize specific property that has allegedly been used in the commission of a crime).

This is all relevant because a person's marital status itself has been determined to be a "thing" subject to in rem jurisdiction - meaning that a court can decide a person's marital status without having personal jurisdiction over both parties to the marriage.  This is important because the rules for service of process for in rem jurisdiction are different.  In Virginia, a court has the power to grant you a divorce even if you don't know where your spouse lives so long as you pursue service by means of an "order of publication" - an order that mails the pleadings to your spouse's last known address and publishes notice of the proceedings in a local newspaper for four weeks in a row (you can sometimes find these legal notices in the classified section of your local paper).  Once you complete an order of publication, the court can grant you a divorce without your spouse's appearance.

Now, to be clear, the court can only grant you a divorce.  It cannot grant you support nor can it divide your marital property (though that can be done via other procedures later, at least for property that is titled in your joint names).

My kid turned 18 and graduated high school - why am I still paying child support?

In Virginia law we have a concept known as "self-executing" and "non-self executing" provisions of support law.  A self-executing provision is one where support changes or is eliminated upon the happening of some event and no further court involvement is needed.  A non-self executing provision calls for changes after a certain event, but you must get a court order first.  The basic distinction is this three part question - is the fact that the event has occurred relatively indisputable and unopen to interpretation, is what the resulting support should be also relatively indisputable and unopen to interpretation, and is support paid directly without the involvement of third parties?  If the answer to all three parts is yes, the provision is probably self-executing, but if the answer to any part is no, then the provision is not self-executing and a new order is needed.

When it comes to terminating child support there is only one (normal - I'm not getting into bizarre exceptions here) situation in which its termination is self-executing: when the child is 18, has graduated from high school, is your only or youngest child with the other parent, and you are paying your support directly to the other parent.  In virtually all other situations, child support termination is not self-executing.  Let's break down the reason why.

Well, to start with, the one example given above is self-executing because your child's age, status, and sibling status should all be relatively indisputable, and if they are your youngest child with the other parent, then support should be $0.  However, if you are not paying directly, that means there's been an Income Deduction Order entered by either the court or DCSE.  Your employer is thus under a court-ordered obligation to pay the support, and cannot stop until he or she has received a new order saying otherwise.  As a result, if all of the above conditions apply except that you are not paying directly, you need to go to the source of the Income Deduction Order (the court or DCSE) and get a termination order entered.  You must also do so ASAP, as money improperly paid under the Income Deduction Order before it is terminated cannot be recouped.

The other changes from the above, simple scenario, are a bit more obvious.  If it's not your youngest child, then you still owe child support, and since the Virginia guidelines are not a "per child" guideline, the new support number is not inherently obvious.  Similarly, if they have just turned 18, or just graduated from high school, but not both, the support termination condition has not been met yet.

My landlord of 20 years has decided not to renew my lease - I've done nothing wrong, how can I fight this?

I get this inquiry a lot and unfortunately, the answer is usually "nothing."  The simple reality is that when you rent, the property you are renting belongs to your landlord and as long as they do so in accordance with the terms of their lease, they can terminate the lease for any reason they want or no reason at all.

Now, the two big defenses to a lease non-renewal are discrimination and retaliation.  Federal law bans housing discrimination on the basis of the "protected classes."  In general, if you have reason to believe your lease is not being renewed due primarily to your race, color, nationality, religion, sex, marital status, status as a veteran (namely discrimination against you for being a veteran), or disability, then you should consult a civil rights or discrimination attorney.  You may not be able to force the landlord to renew your lease, but you should be entitled to fairly substantial damages.

Additionally, in both VRLTA and non-VRLTA leases now, retaliatory conduct is prohibited.  This means if you have evidence that your landlord is refusing to renew your lease because you brought a code compliance complaint against the landlord, filed a tenants' assertion or other lawsuit or otherwise made a complaint to your landlord to fix issues with the property, you organized or became a member of a tenants' organization, or you testified in a court proceeding against your landlord, you can prevent the landlord from terminating your lease or evicting you.

However, absent one of those two issues, your landlord has a right to refuse to renew your lease, no matter how good a tenant you have been.

Conclusion

I do hope to do more of these "short topics" posts in the future.  Each of the situations above are fairly complicated, even for short topics, and as always, I strongly encourage you to retain an attorney to discuss your particular needs.  If you would like to set up a consultation with me, please review my initial consult policy, and then call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  Our initial consults are free for up to half an hour!

More Virginia Divorce Uh-Ohs: 3 More Big Legal Mistakes You Can Make in a Divorce

As always, before reading my post, please review my disclaimer by clicking on the link above or clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

About a month ago, I did a blog post about 5 big legal mistakes I see people make in their divorces.  I got some very positive feedback about this post, and my blog analytics indicate it's currently my most read post from the past six months or so, which is pretty impressive considering how new it is.  It occurred to me, however, in the time since that there are still more legal mistakes people make in their divorces that can have devastating consequences for them, and so I decided I needed to do a follow-up post to cover some more of those crucial errors I see all too often.  Fortunately, the biggest difference between this post and the one I did a month ago is that these mistakes can be fixed, they just have to be caught in time.

1.  Failing to request spousal support in your pleadings

If you are entitled to spousal support, attempt to negotiate with your spouse without success, prepare a full day's worth of evidence on the topic, and go to trial ready to fight for your support, how surprised will you be if you find out you can't get that support, no matter how strong your case is, due to a technicality?  The reality is, I've encountered this a number of times in my career already - with every case but one being cases where the person wanting the support also did not have an attorney.

It is a basic rule in law that in court, you cannot get what you do not ask for.  Moreover, the way that you ask for something is in a written document called a "pleading."  "Pleadings" include a "Complaint" initiating a case, an "Answer" to a Complaint, and a "Counter-Complaint."  When you go to trial (as opposed to hearings on motions, etc.), it is the overarching pleadings initiating the case that determine what you have asked for at trial.  As a result, in order to get something at trial, you must have asked for it in your initiating pleading.

In 1986, the Virginia Court of Appeals ruled (correctly under the law) that a Complaint requesting a divorce does not automatically include a request for or to determine spousal support.  As a result, spousal support must be specifically requested.  If none of the initiating pleadings (Complaint, Answer, Counter-Complaint, etc.) asks for spousal support, then the trial court cannot grant it, no matter how strong your case is.  As a result, you are well served to include a request for spousal support in all of your initiating pleadings (for example, if you file an Answer and a Counter-Complaint, you should include the request for spousal support in both, not just in the Answer, in case the court later strikes your Counter-Complaint).

Fortunately, if you fail to do this, you will likely be able to correct it.  Courts are required under Virginia Supreme Court Rule 1:8 to liberally grant motions to amend pleadings.  Pretty much the only time you can expect a motion to amend to be denied is if you've either already amended a large number of times, or if you're extremely close to trial (say, a week or less away).  I've even heard of cases where the motion to amend was granted at trial in certain extreme circumstances (for example, the other party also didn't realize support hadn't been requested and was prepared to go to trial on the issue).  Nonetheless, if you discover you have this issue, you should move to fix it ASAP.

2.  Failing to request a determination of spousal support when there is a J&DR Order

This issue is related to the first, but on the flip side.  The Virginia Code allows spousal support to sometimes be obtained in the J&DR Court.  Specifically, this is allowed when you are separated, but not yet divorced, and is frequently done shortly after separation when there's not really a good argument to file a divorce yet since you haven't been separated long enough.

Spousal support orders from J&DR Court have several disadvantages for payors, but perhaps the biggest is that a J&DR spousal support order is indefinite.  It can be modified upon a showing of a material change in circumstances, but otherwise it cannot be set for a defined duration, unlike spousal support orders in a divorce (this is because, in theory, J&DR spousal support orders were designed to only last until the parties divorce).  Moreover, the J&DR Court is supposed to only look at what is "appropriate... to protect the welfare of the spouse seeking support," which is a vastly different standard than the many factors (including the rule the payee spouse may have played in causing the breakdown of your marriage) the Circuit Court must consider in a divorce.  For more about J&DR spousal support, see my blog post on spousal support.

Of some interest, however, is the fact that the Court of Appeals has ruled (I believe this is incorrect under the law, but it is current binding precedent and unlikely to be changed any time soon) that while J&DR spousal support can only be ordered for parties that are separated, not divorced, such a spousal support order survives the divorce of the parties, unless it is superseded by the divorce order.  In other words, if J&DR spousal support is ordered, it can only be gotten rid of if the divorce decree issues a contrary spousal support order.  If the divorce decree is silent on spousal support, then the J&DR spousal support order survives.

Now, as with a request for spousal support from a potential payee, a payor must request that the Circuit Court decide spousal support as part of his or her divorce initiating pleadings in order for the divorce court to have the power to issue a spousal support order contrary to the J&DR Order.  Fortunately for the payor, if he or she makes such a request, the divorce court's order would supersede the J&DR Order, and would be treated like an original order (not a modification), so no material change in circumstances would need to be shown.  So, if you are a payor under a J&DR spousal support order, you must request the divorce court to rule on spousal support if you want the factors considered and a defined duration award to be possible, otherwise you could be stuck with the J&DR order for a very long time.  Fortunately, like with the issue in number 1, a timely requested amendment to include that request in your pleadings will likely be granted.

3.  Failing to include provisions in a written order

For many first-time court litigants, it is surprising to learn that judges, especially in the Circuit Court, rarely write out orders.  Instead, the parties or their attorneys write out an order capturing what the judge has ruled, and then the judge signs it.  This is partially meant to lighten the load on judges who are already overworked, but also partially meant to allow parties to continue negotiating and attempting to settle their differences, especially if the court ruled a way that neither of them like.

This also sometimes creates problems for parties that are caught unaware.  Specifically, there's a rule in law, followed very strictly in Virginia, that says "the Court speaks through its written orders."  In other words, if the judge ordered something from the bench, but that order was not included in the written order that the judge signed, then it is as though the judge never gave the portion of the order that was not written down.  I've had multiple potential clients come to me and say "the judge ordered my ex to do this and she hasn't, I want her held in contempt," only when I look at the actual order, there's nothing along those lines in it.  The response I usually get is "yeah, it's not in the written order, but it's what the judge said," and I generally have to give them the bad news that if it's not in writing, then it's basically no order at all.

Now, there is a way to fix this.  If it was simply an oversight on your part that the provision was not included in the order, then this is effectively a clerical error and you can ask the court to modify the order to include the provision.  Now, if the other side argues that no, this was intentional, you need to be prepared to show the court both a) you did not intentionally agree to leave the provision out of the order, and b) that the court meant to include the provision.  Frequently a can be accomplished through testimony, but b can be difficult - you usually need the judge to have a good memory, the judge to have taken good notes, or to have a transcript of the judge's ruling.  Nonetheless, if your motion is granted, then the written order will be modified to include the provision, and can be enforced going forward.

Conclusion

Not all mistakes are immediately fatal in a divorce.  Some have horrible results if they go uncorrected, but nonetheless can be corrected if caught in time.  Mistakes like these are exactly why it is always a good idea to have an attorney when navigating a contested divorce.  If you have made, or are afraid you have made, one of these mistakes and need to bring in an attorney to fix it, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour.

Virginia and US Supreme Court Vacancy Crises - The Basics

As always, before reading my post, please review my disclaimer by clicking the link above or by clicking on this link.

Introduction

The other day I had someone ask me what I thought about the "vacancy crisis" on the Supreme Court.  My response was "which one?"  See, while you probably already know about the US Supreme Court having a bit of a vacancy crisis arising from the death of Justice Scalia and no one really knowing when or if that vacancy will be filled, in Virginia our own Supreme Court has been dealing with a vacancy crisis of its own since last summer.  Neither seem likely to end soon, and both have gotten me a good number of questions.  So, with this post, I'll give a basic breakdown of what the issues are in each vacancy and where I see them likely to be headed.

Background on the Virginia Supreme Court Vacancy

Last summer, Virginia Supreme Court Justice Leroy Millette announced his retirement.  Now, in Virginia, judges are elected by the General Assembly without any input from the Governor.  However, when the General Assembly is not in session, the Governor can appoint someone who will sit on the bench until 30 days after the next session of the General Assembly begins.

Last summer, the Republican-controlled General Assembly was not in session, so the Democratic Governor (Terry McAuliffe) decided he would make a recess appointment, as had been done 31 times previously for the Virginia Supreme Court over the past 100 years.  All 31 previous times, even when the Governor and General Assembly have been of different parties, the Governor's choice has then been elected to a full term on the Court, so Governor McAuliffe took this appointment very seriously.  He reached out to the bar associations and members of the General Assembly Courts of Justice Committees for recommendations.  Finally, he settled on Fairfax County Circuit Court Judge Jane Marum Roush - a judge recommended to him by Dave Albo, the Republican Chair of the House Courts of Justice Committee, and unanimously supported by the major state bar associations due to fairly impeccable credentials.  With Del. Albo standing next to them, Governor McAuliffe announced his pick of Judge Roush shortly thereafter, and she ascended to the Supreme Court (this was also personally exciting for me, as I have appeared in front of Justice Roush more times than any other judge in my legal career to date).

Well, the Republican leadership in the General Assembly pitched a fit.  They were mad that Governor McAuliffe spoke to the Courts of Justice Committees, instead of the actual Republican leadership (Speaker of the House and Senate Majority Leader) something that some previous governors had done, but others had not.  The Republican leadership openly admitted that Justice Roush was well qualified for the position, but due to this alleged "breach in protocol," they announced that, for the first time in more than 100 years, they would kick the Governor's choice off the bench and put forward their own nominee.

In August, the General Assembly reconvened for a special session, but in the Senate, where Republicans have only a 21-19 majority (and the Lieutenant Governor, who casts the tie-breaking vote, is a Democrat), all did not go according to plan.  Retiring Republican Senator John Watkins called the Republican Party out on its shenanigans, and refused to support their efforts to advance their own nominee.  As a result, no new justice was named.  The Senate then, along the same 20-20 vote with the tie broken by the Lieutenant Governor, voted to adjourn their session, without the consent of the House of Delegates.  This move was of questionable constitutionality, since the Virginia Constitution forbids one house of the General Assembly from adjourning without the consent of the other, but the syntax of the constitutional provision makes it very unclear if that requirement applies to special sessions or only regular sessions.  As a result, the Senate determined on its own that its actions were constitutional, the (Democratic) Attorney General agreed, and there was not much the House of Delegates could do.  As a result of this adjournment, once the 30 days had elapsed ending Justice Roush's term, Governor McAuliffe re-appointed her.

Fast forward to the current session, Republicans still hold a 21-19 majority in the Senate, and they have dug in their heels.  The Speaker of the House of Delegates declared that Republicans can never support Roush now because she a) lobbied legislators to keep her job, and b) accepted the re-appointment that Republicans claim was unconstitutional.  With Senator Watkins out of the Senate, most observers considered Justice Roush doomed, but then freshman Republican Senator Glen Sturtevant, the very Senator who was elected to Senator Watkins' former seat, announced that he himself would not support the Republican effort to remove Roush.  Then, a Democratic Senator, Louise Lucas, announced she would support that effort, only to change her mind a few hours later after meeting with Governor McAuliffe.

So, where are we now?  The thirty days on the current session has expired, Justice Roush is now off the Supreme Court bench, but the election of a new justice any time soon seems unlikely.  There are about thirty days left in the General Assembly session when it will end automatically, and require a two thirds majority of each house to extend (not likely).  Governor McAuliffe has already announced that if there remains a vacancy at that time, he will appoint Justice Roush yet again.

Background on the US Supreme Court Vacancy

This vacancy has much less back story required than the Virginia vacancy.  On February 13th, Justice Antonin Scalia passed away in his sleep.  Scalia was seen as the mouthpiece of the conservative wing of the Supreme Court.  However, the Constitution authorizes the President to appoint Supreme Court Justices, who must then be approved by a majority of the US Senate (interestingly enough, the President can also appoint someone who automatically takes the bench until the next session of Congress, so in this case until 2017, if the Senate is in recess, as it is this week, but President Obama has opted to not use that power, which has not been used to put a Justice on the US Supreme Court since the 1950's).

With Barack Obama sitting as President, most expect he would nominate a liberal justice to replace the conservative Scalia.  As a result, many senators in the Republican-controlled Senate have already said they will refuse to even allow a vote on a President Obama nominee, insisting that the next president should pick.  This would create a vacancy that could last an unprecedented 340+ days.  As of now, Obama has not yet announced a nominee, but has declared he will put one forward.

Implications of the Vacancies

While both courts have a vacancy at the moment, this means each court has an even number of justices (6 in Virginia out of the usual 7, and 8 in the US Supreme Court out of the usual 9), however, the impact is much more profound in the US Supreme Court than in Virginia.  This is for a couple of reasons.

First of all, Virginia has the concept of "senior justices."  These are justices who have reached a certain age and number of years of service on the court, and have retired from "active duty" on the court.  There are currently four senior justices.  In any given case, where there are less than seven justices available (traditionally due to a justice being sick, unavailable, or recused from a case, but the presence of a vacancy can also be a reason), a senior justice can be called on to sit on the case, and cast a vote and write opinions just as if he or she was still an active justice.  As a result, it is unlikely that the Virginia Supreme Court will face any split decisions as a result of this vacancy.  Moreover, from a political standpoint, the Virginia Supreme Court has had a conservative/Republican majority of either 4 or 5 for some time - Justice Millette was seen as a moderately liberal/Democratic justice, as has been Justice Roush.  As a result, the vacancy is unlikely to change the balance of power on the Virginia Supreme Court.  Additionally, the Virginia Supreme Court has much fewer "political" cases than the US Supreme Court, so divided cases, or at least ideologically divided cases, in the Virginia Supreme Court are actually fairly rare.

The US Supreme Court, however, is quite different.  The US Supreme Court has had since the late 1980's and early 1990's a 5-4 conservative/Republican majority (although Justice Kennedy, a part of that majority, at times votes with the court's liberal wing).  Justice Scalia's death not only leaves the court with 8 justices, but it leaves the court with 4 liberal justices and 4 conservative justices.  While the US Court system does have the concept of "senior justices" and there are presently three of them (former Justices O'Connor, Souter and Stevens), senior justices can only sit on Circuit Court of Appeals panels, not on the Supreme Court.  As a result, it is very probable that as long as the vacancy remains, we could have a slew of 4-4 decisions.  In the case of a tied decision in the Supreme Court, the lower court decision stands, but is not binding precedent on the rest of the country.  As a result, major hot-button constitutional issues likely cannot be decided until the vacancy is filled.

How I see things playing out

Setting aside what I'd like to happen or what I think should happen, I honestly don't foresee either of these crises resolving any time soon.  The Republicans clearly have the power to block any Obama nominee, and the Republicans in the Virginia General Assembly have basically backed themselves into a corner on Justice Roush.

My prediction in Virginia is that the disagreement will not resolve this session and the session will end with a vacancy, at which time Governor McAuliffe will re-appoint Justice Roush.  At some point, I believe cooler heads will prevail and Justice Roush will be elected to a full term on the court, although one possible way out for everyone would be for President Obama to nominate Justice Roush to a seat on the federal 4th Circuit, which several people have suggested.  Regardless, I expect that by this time next year, this crisis will have been resolved, likely with Justice Roush serving a full term on the Virginia Supreme Court, but I do not anticipate that to happen this session.

My prediction in the US Supreme Court is that President Obama will nominate DC Circuit Court Judge Sri Srinivasan.  Judge Srinivasan is probably the most qualified "democratic" jurist in the country, and in a normal year would be a largely non-controversial pick.  Given that 2016 is an election year, however, and that Judge Srinivasan has the potential to tip the balance of the Supreme Court, I expect the Republicans in the Senate to still refuse to give him a vote.  This will become an issue in the election.  Regardless, I have trouble seeing anyone picked by Barack Obama being confirmed to this seat, and I expect that a year from now, the US Supreme Court will still have a vacancy, and the new president's pick will be going through the confirmation process.

A Brief Overview of Virginia Attorney-Client Privilege Law

As always, before reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link.  As always, any legal principles discussed in this post apply only to the Commonwealth of Virginia.

Introduction

Something I've learned over the years is that most people have heard of attorney-client privilege, but only have the faintest notion of what it means.  I usually hear people explain it as meaning "my lawyer can't repeat anything I tell him to anyone else without my permission," or "no one can ever find out anything my lawyer and I discuss," or "there is no privilege unless I specifically tell my lawyer something is privileged," or some combination thereof.  Of course, I wouldn't be using those examples here if they weren't all wrong to some extent or another.

Because it is critical if you are in a legal situation for you to be able to be candid with your attorney, and as a result it is critical that you understand at least the basics of privilege, with this post I hope to provide a brief overview of attorney-client privilege, how it works, and some of its exceptions.

A Brief History of the Privilege

As you probably know, attorneys have existed in some form or another since the Roman period.  Much of what we think of as the concept of modern attorneys, however, dates back to the Middle Ages in England.  There, leaders began to conclude that there was benefit to having individuals who were learned in laws represent people accused of violating laws so as to free the common people from having to learn all law themselves - and, more importantly, to ensure that courts reached accurate results, despite whatever level of sophistication or lack thereof a specific litigant had.  Central to this idea was the notion that an attorney needed to know the details of his client's case in order to adequately represent them.  The attorney-client privilege was borne out of the idea that a client will not be candid with his or her attorney unless they know that what they tell the attorney will not be told to anyone else.

This is still the philosophical underpinning of attorney-client privilege.  It is so important a part of our adversarial system, that an attorney who violates the privilege can be both disbarred and sued personally for damages.  It is recognized as an element of the Sixth Amendment right to counsel by the US Supreme Court, such that it would be unconstitutional for a court or police force to force your attorney to violate privilege.

So, What Does Privilege Cover?

Attorney-client privilege covers all communications that are exclusively made by a client to his or her attorney or any other attorney at that attorney's firm, any communications that are exclusively made by an attorney to his or her client in which the content of a privileged communication from client to attorney would be expressly or implicitly revealed, and all communications that are exclusively made by a potential client to his or her potential attorney or any other attorney at that attorney's firm.  That's it.

So, a few important things to note about the above.  First, privilege never expires.  Unless and until it is waived, privilege lasts forever, including not only past the end of the attorney representing the client, it even continues past the client's death.  Second, privilege only covers things your attorney says to you if those things necessarily reveal privileged things you have sent to your attorney - otherwise communications from your attorney to you are not privileged (though there are other rules that are weaker than privilege but nonetheless do exist to prevent premature revelation of communications from your attorney to you).  Third, privilege only covers exclusive communications - this means any communication with your attorney where you have a friend listening in on the conversation, or an e-mail in which you have cc'ed a friend, is not privileged.  Some courts (though not all) have ruled that simply sending an e-mail from your work e-mail address is enough to say that the e-mail is not privileged because your employer can presumably read your e-mails.  Fourth, note that it covers all communications within the range of types of communications it covers - so there's no magic words you need to say in order to invoke privilege, it is automatically invoked every time you communicate exclusively with your attorney.  Finally, note that the privilege only covers communications - not things - you cannot give your attorney a box of evidence and suddenly have that evidence be privileged (with some exceptions not worth getting into here).

How Privilege Works

So, now that we know what privilege covers, it's worth discussing how privilege actually works.  So, at its most basic level, privilege means that your attorney not only is forbidden from revealing privileged communications on his or her own, he or she also cannot be compelled by anyone else to do this.  This means your attorney's e-mails cannot be subpoenaed without redactions, your attorney cannot be compelled to testify against you with privileged information, etc.  If the other side in a litigation seeks something that is privileged, your attorney can object, and that objection should be sustained.  In other words, nothing privileged you tell your attorney can be used against you.  Unless the privilege is waived.

How Privilege Gets Waived

So, with that all being the case, it's important to understand that a lot of privileged information loses its privileged status because the privilege gets waived.  Privilege can be waived many ways and for many purposes, both intentionally and unintentionally.  It's important to note, however, that once privilege is waived, it cannot be unwaived, and the covered privileged communications can never again be protected by privilege anywhere.

So, the simplest way to waive privilege is to sign a statement saying "I waive all of my attorney-client privilege rights" - but that would pretty much never make sense to do.  The most common way that privilege actually gets waived is that your attorney reveals some privileged information to the other side, usually because you have specifically authorized your attorney to do this.

Privilege is waived any time privileged communications are revealed to someone other than you or your attorney (or other attorneys in his or her firm).  It does not matter who does the revealing - it can be you or your attorney.  It also does not matter if the revelation was intentional (with some exceptions), or, if it was your attorney who revealed the information, it does not matter if your attorney did it without your authorization.  If your attorney does waive privilege without your authorization, you can report him or her to the bar, and the bar will frequently discipline such attorneys, possibly even disbarring them.  If the revelation ends up hurting you, you can also sue your attorney for malpractice.  Nonetheless, the privilege remains waived.

Now, fortunately, this rule about revelation is not nearly as harsh as it used to be.  Courts recognize the supreme importance of the privilege, and protect it diligently.  As a result, in order for a waiver to be found, it must first of all be the content of the communication that is revealed, not merely the subject matter.  Your attorney telling the other side "my client talked to me today about x" without going into detail of what you said does not waive privilege for your conversation.

Similarly, where waivers are found, the scopes of those waivers are very limited.  With very rare exception, the courts virtually never find privilege to be fully waived.  Instead privilege will only be found to be waived to the extent necessary to reveal the full context of the communication for which privilege was revealed.  For example, let's say you tell your attorney in confidence in one conversation, "I stole Tim's bike and sold it at Joe's pawn shop.  I also stole Jerry's bike."  Then let's say your attorney gets drunk at a party and tells his non-attorney buddy, "my client told me he sold Tim's bike at Joe's pawn shop."  Well, the court is likely to say that privilege has been waived as to the statement "I stole Tim's bike and sold it at Joe's pawn shop," but that it still has not been waived as to the statement "I also stole Jerry's bike."

As you might imagine, privilege is actually waived routinely in most cases.  This is especially true in civil cases, where you may often be telling your attorney something with the express purpose that they will pass that information on to the other side.  Nonetheless, the way privilege gets waived and the limited scope of such waivers is worth remembering.

Exceptions to Privilege

Now, as you might imagine, there are some exceptions to privilege.  These are situations where a communication would normally be privileged, but something about the communication itself or the situation in which it is potentially being used either makes it not privileged, or makes privilege inapplicable.  There are a lot of exceptions to privilege, but most of them are very fact specific.  Here are the most common exceptions I encounter:

• Privilege does not apply during a lawsuit between an attorney and his or her client to the extent necessary for the attorney to be able to adequately represent his interests.  This includes legal malpractice lawsuits by a client against his attorney, defamation lawsuits by an attorney against his client, or collections lawsuits by an attorney against his client.
• Privilege does not apply any time a lawyer faces criminal, civil or bar disciplinary proceedings arising out of his representation of a client to the extent necessary for the attorney to be able to adequately represent his interests.
• A lawyer may waive privilege without consent of the client and without facing discipline or civil action when the privileged communication reveals that the client has, while the lawyer was representing him, perpetrated a fraud on a third party in a matter related to the representation.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing the intent of the client to commit a crime, so long as the lawyer has (if feasible) warned the client of the legal consequences of such actions and that the lawyer would have to reveal the information if the plan was not abandoned first.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that, while the lawyer was representing the client, the client had perpetrated a fraud upon the court related to the subject matter of the representation, so long as the lawyer has (if feasible) first requested that the client him or herself tell the court about the fraud.
• Privilege does not apply to, and in fact the lawyer must promptly report, any communications revealing that another attorney has engaged in misconduct in violation of the Rules of Professional Conduct.

So, as you can see, the big areas where privilege does not apply are when you have a dispute with your attorney, or the communications that would have otherwise been privileged reveal some ongoing or future wrongdoing on the client's part.

Conclusion

Attorney-client privilege is one of the more complicated areas of legal representation, but also one of the most important for a client to understand.  If you have any questions at all about how attorney-client privilege applies to your case, you should ask your lawyer.

Virginia Attorneys' Fees Law - When Do You Not Have to Pay?

As always, before reading this post, please review my disclaimer by clicking the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

"It's their fault that I'm in this mess, they should pay your fees, not me."  If I had a dime for every time I've heard a client say that or something similar to me I'd... well... probably have a lot of dimes.  Attorneys' fees are one of those areas where a particular sense of unfairness hits a lot of clients.  If it's not their fault that they need an attorney (maybe they've been wrongfully sued, or wrongfully accused of a crime, or maybe they are enforcing their rights against someone who refuses to do what they are supposed to), it just doesn't seem right that they have to pay their lawyer and can't get the other side to pay.

Well, there are some situations in which your attorneys' fees can, in fact, be ordered to be paid by the other party, but those situations are exceptions, not the rule, and even they are complicated.  In this blog post I hope to discuss some of the basics (the details would be far too much for one post) on when you can and cannot require the other party to pay for your lawyer, and how such an arrangement actually works.

American Rule vs. English Rule

Much of the "common law" world (the parts of the world that can trace their legal traditions to Medieval England) follow what is known as the "English Rule" in civil lawsuits.  This rule is simple - in a lawsuit, the loser pays the winner's attorney's fees, in addition to his or her own.  The United States, however, despite being a common law country, does not follow the English Rule.  Rather, we follow the "American Rule," which states that, while there are exceptions, barring the availability of one of those exceptions, each party pays his or her own attorney regardless of who wins and loses.

The merits of this Rule can be debated all you want (and this is not a constitutionally required rule, by the way, meaning the various state legislators could change it any time they wanted to if they wished), but it is the law in all 50 states and the federal court system right now.  As a result, you should always enter a legal situation expecting to pay your own attorney.

Now, with that background, it might be worth discussing what the major exceptions are.  In Virginia, there are around three major exceptions.

Exception 1 - Statutory Exceptions

Statutory exceptions are situations where Virginia Law expressly provides for attorneys' fees to be awarded in the discretion of the court.  Some common situations in which courts have the power to award attorneys' fees to a party of its choosing are Family Law cases (including divorce), estate dispute cases, and all civil lawsuits heard by the Juvenile and Domestic Relations District Courts.

Now, the statutory exceptions themselves will lay out in each specific part how the court makes its determination - and not all statutory exceptions are the same.  For example, in a divorce, attorneys' fees are awarded "in light of all the equities of the case" - in other words, the judge is to make an attorney fee ruling he or she considers fair.  In J&DR Court cases, however, attorneys' fees are to be awarded based pretty much solely on the relative ability of the parties to pay.

So, as you can see, the statutory exceptions give a great deal of discretion to judges.  As a result, if you wish to enforce an attorney fee right which is granted by statute, you must convince a judge that you should be awarded such relief.  You cannot simply demand that the other party pay all of your fees.

Exception 2 - Agreement

The next major exception is if the parties have agreed to apply the "English Rule" to their case.  Many contracts, for example, will contain provisions that if a lawsuit is filed based on an alleged breach of the contract, the prevailing party will be entitled to his or her attorneys' fees.

With rare exception, when a lawsuit involves a contract and that contract provides for an attorneys' fee award, the judge is largely without discretion.  If the agreement provides that the loser pays, then the judge must order the loser to pay.  In these cases, it is much more reasonable to demand your fees from the other side at the outset.

Exception 3 - Sanctions

Virtually all court systems have provisions for dealing with lawsuits that are "frivolous."  In Virginia, our provision is Virginia Code Section 8.01-271.1.  This provision states that the signing of any "pleading" (court document) indicates that the person signing it (be it the attorney or an unrepresented party) has a good faith basis for believing that the pleading is reasonably based on law or fact.  If this later turns out to be untrue, and the pleading was filed in bad faith, the lawyer, the lawyer's client, or both can be sanctioned (penalized) by the court.  Amongst the penalties the court may impose is an attorneys' fee award.

Much like exception 1, sanctions are largely discretionary.  If a judge finds that sanctions are warranted, the judge may not award fees at all, or only award some fees.

How Fee Awards Function

If you find yourself in an exception situation where a fee award might be possible, the first thing you need to understand is that your fees are your responsibility first and foremost.  I've had clients say to me "do this, and then send the bill to the other party."  No, that's not how it works.  You owe the money to your attorney, and it is your responsibility to pay, even when the court has awarded you your attorneys' fees.

If the court awards you fees, it can come in two forms - an order to pay or a judgment.  As I've discussed before, an order to pay is a ruling that requires the person to pay under penalty of contempt of court.  A judgment, however, only creates the duty to pay on paper, and then you still have to engage in post-judgment collections to get the money.

The easiest way to tell which situation you are in is to see if the judge provided a payment deadline.  If they did, then it's probably an order to pay, and if they did not, then it is probably a judgment.  More generally, most (but not all) attorneys' fee awards arising out of agreements are judgments, and most (but not all) attorneys' fee awards arising out of sanctions are orders to pay.  For statutory exceptions, it generally depends whether the case is "in law" or "in equity" - so divorce attorney fee awards are usually orders to pay, but estate dispute attorney fee awards are usually judgments.

So, the fact that some attorneys' fee awards are just judgments that must be garnished or otherwise collected should tell you right away that you must still pay your attorney first, but then you can try to get that money back.  Even orders to pay, however, do not relieve you of your obligation to your attorney, since the other party may still refuse to pay.  Most importantly of all, however, almost all attorneys' fees awards (both judgments and orders to pay) are dischargeable in bankruptcy, so if the other party declares bankruptcy, you can't collect the fee award, and you still have to pay your attorney.

In short, there is virtually no situation in which "do this and send the bill to the other party" is actually acceptable.

Conclusion

There are few things more frustrating to a wronged party that realizing that you still have to pay for your own attorney.  While there are exceptions, these are frequently hard to understand, and harder still to enforce.  If you'd like to discuss whether an attorney fee award is possible in your case, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com for a consultation.  Our initial consultations are free for up to half an hour!

Fighting Virginia Debt Collectors in Court

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Stuff happens - that's one of the realities of life.  Sometimes this means we don't pay bills we intended to, we fall behind on credit card payments, or we even forget about some bills altogether.  On top of it all, sometimes we pay our bills, and the person we paid loses our payment, loses track of it, or mis-enters it into their billing system.  Regardless of how you get there, however, few things can be scarier than receiving a summons to court because a debt collector has sued you.  In today's blog post, however, I'll discuss some basic "tricks of the trade" on how to fight back against a debt collector's lawsuit, even if you technically owe the money.

Before I begin, if you're new to this blog, it may help to familiarize yourself with the procedures for civil cases in the General District Court.  I will be discussing General District Court here since that is where nearly all lawsuits from debt collectors are filed in Virginia.

How to Tell if You're Being Sued by a Debt Collector

The first thing to do is to figure out if it's actually a debt collector who's suing you.  The best way to do this is to look at the name of the plaintiff on the Warrant in Debt you've been served with.  If you've never heard of the plaintiff, and especially if the plaintiff is listed as "assignee of" or "subrogee of" or something similar, followed by a name you have heard of, then you're being sued by a debt collector.  If, however, the name of the plaintiff is familiar, and it's who you owe (or owed) the debt at issue to, then you are not.

While some original creditors, especially very large ones, behave similarly, most do not, so this blog post is really geared towards people being sued by debt collectors, not original creditors.

Motivations at Issue

So, the next thing to do is try to understand the motivation of the parties involved.  For the original creditor, they likely made some cursory efforts to collect payment from you, and when that didn't work, gave up.  They decided, probably reasonably, that they're not likely to be able to collect your debt - at least not without expending substantial effort - so they sold it to a debt collector, likely for pennies on the dollar (I've heard of debts being sold for somewhere between 5 and 35% of face value, depending on a number of factors) so as to get something.

For the debt collector, they make their money by buying up as much "bad debt" as they can, and then hoping to collect enough of it to make back their money and then some.  As you can guess, though, if a debt collector only pays 15% of face value, it probably only expects to actually successfully collect somewhere around 25 to 35% of the debt it buys.  This means a debt collector of this sort is generally motivated to collect as much as they can while exerting as little effort and cost as possible.

Handling the Lawsuit

Some debt collectors will simply file a lawsuit against everyone whose debt they've bought.  Their hope is that a) some people will get scared into paying by the lawsuit, b) some people will get scared into paying by the judgment that's entered showing up on their credit, c) some people will actually own property and will end up paying when they sell that property due to the lien the judgment created, and d) the collector will stumble upon a person's employer or banking information and be able to do a garnishment with its judgment.

Remember, however, that a debt collector is still assuming that it will never see a dime from the majority of the people it sues.  This means a collector is likely unwilling to expend substantial legal fees, or a great deal of time.  If they have a judgment, they usually won't do debtor interrogatories (for more on post-judgment collections, you can read my post on the topic), and for the main lawsuit, they are hoping that you, like the vast majority of people they sue, don't show up to the return day, so they can just take a default judgment.

How to Fight Back

That last part is key - the debt collector is relying on most of its judgments being default judgments.  So, your first step to fighting back is to show up at the return day.  When the judge calls your case, you can usually legitimately and truthfully deny liability, because at that point you don't have sufficient knowledge to prove that the collector suing you actually owns the debt.  When you challenge liability, a trial date will be set.  Many debt collectors will voluntarily dismiss their lawsuit right then and there.

If, however, your plaintiff does not dismiss the lawsuit, a trial date will be set.  Pleadings will likely be required, which is where they will document how they own the money.  You can still, however, challenge liability in your answer and grounds of defense by simply noting that you're without sufficient knowledge of the transaction to be certain of its accuracy.  Consulting an attorney will help you prepare an answer that is both truthful (actually truthful, not just technically truthful but deceptive) and effective.

Come trial, many debt collectors will give up and dismiss their case.  A small number, however, might go forward.  Their plan, again since they intend to expend minimal effort, is to call a witness from their own company to validate their purchase of the debt, but not to expend the effort needed to call a witness from the original creditor to validate the debt itself.  They might try to have their own witness validate the debt itself, but even a defendant with very basic legal knowledge will be able to object to that validation as hearsay.  Instead, they will call you to the witness stand to validate the debt itself.  If, however, you have an attorney, and you have not been subpoenaed (and they almost never think to subpoena the defendant) you do not have to be at trial.  If you are not there, they probably cannot validate the debt, and if they cannot validate the debt itself, they cannot win.

Important Caveats

Note, however, that while a minority, there are debt collectors who are legitimately trying to collect every single debt they own.  They will go through the effort of having a trial and having their necessary witnesses there, then engaging in post-judgment collections actions.  In short, what I've listed here works, in my experience, with most debt collectors, but not all.  Additionally, if there's a problem with the debt (like you actually paid it, but never got credited), then you should appear at trial to present that evidence.  Further, no plan is perfect, and you should definitely have an attorney if you are challenging a debt collection lawsuit in the manner described above.  Finally, you must be truthful throughout the proceeding.  Doing otherwise could get you in some very hot water.

Conclusion

Being sued by a debt collector is scary, but there are ways to fight back, even if you owe the money.  Only an attorney can tell you what strategy is best for your case, however.  If you've been sued by a debt collector, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Virginia Post-Eviction Issues - Now What?

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

So, you've done everything right.  You rented out your home, your tenants stopped paying rent, you did all your correct notices, went to court, got a judgment, and waited out the excruciating eviction process.  Finally, the big day comes, your tenants are out, and you have a house full of their junk.  Now what?

I've been shocked over time to discover that most advice out there about how to handle evictions seems to stop the moment the tenants are removed from the property.  Those who have been through this before, however, know that this is not the case at all.  Just because the tenants are out does not mean the ordeal is over - not by a long shot.  Today's blog post will discuss some of your rights, and your responsibilities, for handling issues that arise once the eviction is over.

Handling Tenants' Personal Property

The first step is handling tenants' personal property.  For this, you have two options (and this is regardless of whether or not you have a VRLTA lease).  First, you can have all of their personal property removed from the house and placed on the street, with the tenants (and anyone else in the neighborhood, realistically speaking) having the opportunity to come and get their belongings from there.  Once the property is out of the house, it is no longer your responsibility, and what happens to it happens.

Now, this option is unappealing for several reasons.  First, you must provide the movers so that this can be done rapidly - and this cost must be borne by you, it cannot be passed on to the tenants.  Second, it can create an eyesore by piling up loads of crap on the street.

So, most landlords opt for the second option.  Bring along a locksmith, change the locks, and then leave the property again, allowing the tenants 24 hours to remove their belongings from the property.  Note, however, that they are only allowed to do this during "reasonable hours" generally accepted to mean 9 a.m. to 5 p.m., so if the eviction happens before 9 a.m., they will actually only have until 5 p.m. that day to act.  Afterwards, they are barred from the property, and can be removed by the police for trespassing.

First Week After Eviction

The first week after the eviction is fairly hectic.  Why?  Because even though you went through all of this, you are STILL obligated to obey your lease terms when it comes to dealing with your tenants' account and security deposit, which usually means a deadline to get a statement out about what damages there are in the property.

If personal property remains after the removal period, you can now dispose of it however you wish.  If, however, you sell it, note that the proceeds of that sale must be applied against the tenants' account.

Next, you'll want to get estimates for getting any work that needs to be done to fix the place up ASAP.  That way, you can put together your itemized list of damages, which is what should be deducted from the security deposit before you apply the deposit to anything else.  Once you have your estimates and have gotten rid of the remaining personal property, it's time to begin work on fixing the place up.

Lingering Tenants

One thing a lot of former tenants don't seem to understand is that post-eviction, all of their rights to the property (and any personal property they left behind) are gone.  As a result, if they keep coming around, you can call the police for trespassing, and even harassment.  I knew one landlord who put all the personal property left behind up for a garage sale only to have the tenants come and start loading up their cars (without paying for any of it).  They were shocked when the police arrived and threatened to arrest them if they did not return everything they had just taken and leave.

I know that, as a human being, this may seem harsh.  You can also be certain that your former tenants will do everything they can to make it seem even harsher - I saw one case where the tenants kept their 5 and 7 year old kids home from school on eviction day just to have them directly beg the landlord not to go through with it.  Remember, though, as harsh as it may seem, by the time an eviction is fully carried out the tenants have literally had months to move out on their own terms and failed to take advantage.  At some point, you have to say enough.  It is now your property, and any doorway you leave open to your former tenants could result in whole new litigation issues arising for you down the line.

Security Deposit

So, once you have your itemized list of damages and costs, you need to send it to your former tenants.  If it subsumes the entire security deposit, and any money you received from selling the tenants' personal property, and then some, you can include a demand for funds (though the likelihood of you ever seeing that money is quite low).  If it does not, then any remaining security deposit and funds received from sale of property should be applied against their outstanding balance from the judgment you obtained.

While I have literally never heard of this happening, I suppose it is theoretically possible that the combination of the security deposit and money received from selling personal property could exceed the total damages and costs, as well as the total judgment against the tenants.  If that occurs, you must record the satisfaction of the judgment with the court where the judgment was entered, and then send the remaining amount of money to the former tenants.

Finishing Up

So, you've got the tenants out, you gave them their 24 hours, you fixed up the place, you handled the security deposit and any proceeds from the sale of personal property properly, now what?  Well, basically, you're done.  Again, the property's yours.  You are free to re-rent to a new tenant and move on with your life - if you are ready to.  However, there may be some lingering issues that you may want to address, but at this stage, addressing those issues is solely up to you.

Post-Eviction Proceedings

So, there are two big issues that are entirely optional to you as a landlord as to whether or not to address after your eviction is complete - post-judgment rent and post-judgment collections.

Many evictions occur before a lease term ends.  As leases are contracts, the principle of "expected value" applies to leases as well.  This means that, for all rent payments that would have been due after the date of judgment, and even after the date of final eviction, you can sue the former tenants for that amount of money.  Note, however, that this only covers rent that would have actually been owed, and that you did not collect.  So, once the lease term would have expired, your potential damages stop.  Similarly, once you find a new tenant and start receiving rent, your potential damages stop.  However, up until the earlier of the end of the lease term or finding a new tenant, you can sue for all rent payments not included in your initial judgment.

Additionally, if you have a judgment left over after the security deposit and personal property is distributed (and almost everyone in this situation does), you may want to pursue collecting that judgment.  If you do, this judgment is treated just like any other, and I wrote a fairly extensive blog post on post-judgment collections in January of 2014.

Most landlords I know, however, recognize that the odds of being able to get a former tenant to pay anything are low, and they will typically just let their judgment and additional rent go rather than incurring the costs of pursuing it.

Conclusion

The eviction process is long, complicated and daunting, and many landlords just want to throw their hands up and celebrate when it's over.  Before you release your attorney, however, it's important to remember that your case doesn't end when your tenants are removed.  If you are having any ongoing issues relating to an eviction, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Virginia Lawsuits: Filing in the Circuit Court vs. General District

As always, before reading this post please read my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Not too long ago, I did a series of posts on our three trial courts in Virginia.  The first post of that series explained what cases are heard by what courts.  Astute readers (and some not so astute readers since I flat-out said it) will notice that there are some cases that can be heard by either the Circuit Court or the General District Court - most notably lawsuits for money for more than $4,500 but less than or equal to $25,000.  What I did not get into, however, is why you might choose one court vs. the other.  In this post, I will discuss what you should think about if you are about to file a lawsuit that could be heard by either court to help you decide in which court to file.

Who gets to choose?

First off, it's important to understand that as the plaintiff it is your choice whether to have your case filed in the General District Court or the Circuit Court.  The defendant has no say over this.  Once upon a time, a case in this category filed in the General District Court could be "removed" at minimal expense by the defendant to the Circuit Court, but that right was abolished in 2007.  As a result, plaintiffs now have complete control over which of the two courts a case is first heard in.

The basic advantages and disadvantages of the General District Court

The General District Court has several advantages.  Perhaps the biggest - even if you have an attorney, going to court in the General District Court is usually much cheaper.  The filing fees are lower, there's no real discovery, and it's much easier to start your case without a lawyer and only add one in later on.

The other big advantage of the General District Court is that it is usually much faster.  Unless there are undue delays caused by the parties, a case in the General District Court will frequently go, from filing to trial, about 3-6 months.  In Circuit Court, it's closer to a year, and in some counties even longer.

The biggest disadvantage, however, is that you risk the whole thing being a waste of time.  Remember, a judgment in the General District Court can be appealed to the Circuit Court where a whole new trial would be held as though the General District Court trial never happened.

The basic advantages and disadvantages of the Circuit Court

So, given all of that, you can probably guess that the reverse is true in the Circuit Court.  An appeal from the Circuit Court is much less likely to lead to a new trial, since you actually need to prove that the Circuit Court got something wrong, so a win in the Circuit Court will usually stick.  However, the Circuit Court is definitely more expensive to have a case go through, and takes a much longer time.

That being said, the availability of discovery can also be an advantage.  If there is information you need to prepare your case, there's a good chance you can't get it in the General District Court.  Additionally, the possibility of conducting de bene esse depositions (a deposition that is used in lieu of court testimony) could allow you to have witnesses for trial that would not be available to actually come to a trial.

So, why should I actually choose the General District Court?

When I first prepared for the Bar Exam and was learning about our court system, I once asked "why would I ever file a lawsuit in the General District Court when I'm just going to have to do it all over again if I win?"  This was before, however, I fully understood the concept of an appeal bond.  You see, if the plaintiff wins in the General District Court, in order to appeal, the defendant must come up with the money found to be owed the plaintiff and pay that to the court in order to appeal.  On the other hand, if the plaintiff wins, his or her appeal bond is only the filing fee to file the case in Circuit Court to begin with (plus usually a nominal additional service fee around $10).

As a result of this quirk, personally, when I have a choice I always choose to file in the General District Court unless there is an unusual situation present.  This way, I know that if I lose, I can appeal and get a second chance, and if I win, I either got a judgment much faster and cheaper than I would have in Circuit Court, or, if I have to do it again in Circuit Court, the money will at least be available to me easily if I win again, making post-judgment collections much easier.

Then why should I actually choose the Circuit Court?

So, if all of that made sense to you, you might be wondering why you should ever choose the Circuit Court.  Well, I get into that a big in my advantages/disadvantages section.  If your case is particularly complicated, discovery might be necessary in order to proceed successfully.  If your witnesses are out of the country, a de bene esse deposition might also be necessary.

An additional consideration is what you know about the defendant.  If they are litigious, but also have a ready supply of money, paying an appeal bond might not be a problem for them, and collecting a judgment against them might not be a problem for you.  In that case, filing in the Circuit Court might also make more sense.

Conclusion

Choosing what court in which to file your lawsuit can present its own challenges, and the right answer really depends on your particular case.  The best way to figure it out, I would suggest, is to talk to an attorney.  If you are preparing a lawsuit and aren't sure what court you should be filing in, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Bad Judgments in Virginia - How to Protect Yourself from an Improper Judgment

As always, before reading this post, please review my disclaimer by clicking on my link above or by clicking on this link.  As always, any legal principals discussed in this post apply only to the Commonwealth of Virginia.

Introduction

Let's say you are a normal, law-abiding citizen - someone who takes his or her responsibilities seriously, and who would never ignore legal papers that got served on them.  Nonetheless, one day you start noticing that money is being garnished from your paycheck - upon further investigation you check your credit, and find there's a judgment against you!  You look into the judgment and find out that a default judgment was entered against you two years ago after you didn't show up in court - you investigate the service of the papers and find out they were served at an address you haven't lived in for five years.  Are you stuck, or can you take action to stop the garnishment and undo the judgment?

As I have explained previously, in order to undo a default judgment you typically must file a motion to vacate that judgment within 21 days.  However, there are five situations in which you can make that motion beyond 21 days - the judgment contains a clerical error, the judgment was obtained by fraud (as long as this motion is still made within 2 years), the judgment was void (as in the court did not have proper jurisdiction to enter it), you had settled the claim with the plaintiff prior to the judgment being entered, or you were on active duty military service and the rules of the Servicemembers' Civil Relief Act were not followed.

A situation like the one above describes the most common situation in which default judgments are challenged - the claim is that the default judgment was void because the court never obtained personal jurisdiction over you due to the lack of proper service.  In this post, I am going to discuss how to vacate (undo) a void default judgment, and what the fall-out of a successful motion to vacate is.

Check out what court you are in

The procedures differ slightly for General District Court and Circuit Court (J&DR generally doesn't have default judgments, so this post really does not apply there).  In General District Court, you file Form DC-434 - Motion to Set Aside Default Judgment.  That form can be obtained here.  You want to fill out that form as instructed and file it with the General District Court.  They will set a date at which time you will be required to present your case (see below).

In Circuit Court, there is no form.  You will draft your own Motion to Reopen and Set Aside Default Judgment.  You will have to follow your local Circuit Court's procedures for setting a hearing date, at which time you will again be required to present your case.

Presenting your case

When your hearing comes, you will need to present your case.  Note, this is only your case that the default judgment is void - this is not the time to present your case in defense of the lawsuit itself.  It's important to remember that it is your burden to prove that you were not properly served, so don't just show up and say you didn't live there at the time service was made - be prepared to prove it.  A lease at your new residence showing the dates of rental, for example, would be helpful.

Note that if you can prove you did not live at the residence where service was made, you may still not be in the clear.  If you were served by posted service (copy taped to your door), a copy would have also been mailed to you at that address, and if you had mail forwarded from there to your new address, that may be enough to defeat your motion.  You will need to testify that you either never set up mail forwarding, or that the service was made too long after you moved to be forwarded.  If you prove you did not live there, and can testify that mail was not forwarded to you, that will usually be enough to prevail - but it's not a guarantee.  The other side may have evidence to counter yours, and you could be in for a tough hearing.

I won the hearing!  Now what?

Now, the reality is, if you manage to succeed and get your default judgment undone, the case doesn't just go away.  With the default judgment vacated, you are now considered to have made your appearance in the case - the lawsuit underlying the judgment will proceed as though no default had ever happened.  If you are in the General District Court, a trial date will be set.  In the Circuit Court, the case will follow your local rules for proceeding to trial.

It's very important to understand also that if your motion is successful, the case is fully revived as if it had never ended.  This means that if the lawsuit was originally filed before the statute of limitations expired, then the lawsuit is still within the statute of limitations, no matter how long it's been.

That all being said, if any post-judgment action had occurred after the default judgment - it should be undone.  Any wages that had been garnished, for example, should be returned to you upon the successful vacation of the default judgment.

Conclusion

There are few things more frustrating than being told you did something wrong - especially something as important as not showing up in court when required.  This frustration can be compounded when that alleged failure harms your credit and costs you time, money and aggravation.  If you have a default judgment sitting on your credit that you don't think should have ever been entered, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Getting More for Less - Some Good Reasons to Hire a Small Law Firm

As always, please review my disclaimer before reading this post by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

In looking over my old blog posts today, it occurred to me that I have spent a great deal of time now discussing the law and the details of practicing law.  It has been months, possibly even years, since I last talked about relationships between attorneys and clients.  Today I want to change that.

I have never hidden the fact that I am not one of these fancy, wealthy, big law, big city, workaholic attorneys.  I work for a small law firm, generally handle my cases entirely on my own, work five days a week, and get home in time for dinner with my family almost every night.  The experiences of a small law attorney is very different than the attorneys portrayed on TV.  Our clients frequently are different, too.  Our clients are generally reliably middle class - too poor to afford the fancy downtown law firms, not nearly poor enough to qualify for pro bono assistance.  Given the size of the various "classes" in America, then, it should be no surprise that, in actuality, the vast majority of attorneys work for small law firms, and the vast majority of people who retain attorneys, retain attorneys from small law firms.

Nonetheless, that snapshot of our client base is not complete.  We do, on occasion, get the Fortune 500 executive, large business owner, or wealthy inheritor in our doors, even though they could afford those downtown attorneys.  On one occasion, I asked one of our wealthier clients why he chose to "go small."  His answer ("I want an attorney who's actually been in front of a judge before") made me realize something I hadn't thought about before - even when you have the option, financially, to retain a large law firm, there are actually many reasons to still go with a small law firm.

In today's blog post, I will discuss some of the reasons that I, personally, feel like "going small" is frequently the right choice.

Some basic background

To lead off, I want to be clear that there are many situations where, if you can afford representation from a big law firm, that is probably the direction to go.  Multi-million dollar mergers and acquisitions, extremely complicated lawsuits with millions of pages of documents, and other high-end business representation is typically best served by big law firms.  By and large, this blog post will be talking about personal litigation.  As in cases where you, yourself (not your business) are the party involved.  While some of this can apply to business litigation and other business work as well, by and large, I am referring to personal matters in this post.

"Going small" supports your community

This might be an odd point, but it's worth considering.  There has been a growing appreciation over the last decade or so for "small businesses."  This is a well-placed appreciation.  Small businesses keep money local, help our local community (by hiring people) and help our local economy (by spending money within the community).

It may be odd to think of us this way, but small law firms are small businesses.  A small law firm rarely has more than one office, all of its money tends to be spent locally, and all of its employees (including the lawyers) live locally and spend locally.  Just as with any other small business, when you retain a small law firm you are supporting your local community and local economy in a way that you simply don't when you hire a large law firm.

You get more varied experience for less money

In small law, since we generally do not have wealthy clients, we have to rely on having a large volume of cases to keep our lights on.  The result is that we tend to see a much wider variety of cases than your typical big law firm does, meaning that we could very well be more prepared for the issues to arise in your case than a big law attorney would be.  All of that, even though we cost less than our big law counterparts.

You get more practical experience for less money

I have been practicing law for more than four years now.  In that time, I have appeared in court hundreds of times, argued contested hearings scores of times, and handled numerous contested trials (even multi-day trials), all by myself.  My classmates from law school who are in large law firms by and large haven't even seen the inside of a courtroom yet - and they're the ones in their firm's "litigation" practice - but their billing rate is substantially higher than mine.  You can pay less money by hiring a small law attorney with the same number of years of experience, and substantially more practical courtroom experience, or you can spend a similar amount of money to hire a small law attorney with many more years of experience, and incalculably more courtroom experience.

We get to know you and your whole case

I spent the summer after my second year of law school in a large law firm.  You've probably heard of the "gilded" summer associateships at big law firms - the ones with the obscenely expensive events, obscenely high pay, ridiculously garish parties, etc.  Well, I had one of those.  It was an amazing summer, an experience I will truly never forget, and one that I cherish to this day for a lot of reasons.  What I will also never forget, however, is how we handled clients.  Clients weren't really clients, they were numbers.  I would enter into a database the "client number" for all client work I had done that day, and I would know basically nothing about the case except for the particular issue I was working on.

In small law, I know the client, I know the case, and I know every issue in the case.  If you want to know what's going on in your case, you can call me and get an answer from me, not some junior associate who's only worked on one element of your case.  That's the kind of personal relationship you rarely get with an attorney in big law.

Conclusion

The reality is, even when you have a choice, there are lots of reasons to choose to hire a small law attorney over a big law attorney.  This blog post has summarized some of them, but there are more.  If you are searching for an attorney and have a choice, I hope you "go small."  If you want to learn more about what we can offer, call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour (something else you generally won't get with big law)!