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Here’s our Constant Contact announcement of today to our clients and friends of our twin victories at the United States Supreme Court.

To commemorate this important occasion, we carefully tracked down and obtained permission to use this beautiful print of the United States Supreme Court from the Kamil Kubik foundation.

Thanks to our clients and our fantastic legal team for making this victory possible.  It is possibly a once-in-a-lifetime experience.

Read more about these huge wins, these two cases and our team here.

UPDATE: This National Review piece covers the dueling Halbig and Kings decisions very well also.


Here’s a quick summary of today’s DC Circuit Court opinion in Halbig:

1)  No noticeable effect anytime soon;

2) Potentially far-reaching effects direct and indirect from the decision;

3)  Conflicting decision released within hours;

4)  The U.S. Supreme Court’s going to have to decide things.

Here’s a pretty good quick analysis of the impact of Halbig.

 

 

Most states have “sunshine laws” that apply to state and local government, laws that require government meetings to be held in the open and government records to be accessible to the public.  Frequently, those laws have real teeth, giving private litigants an award of statutory and attorneys fees if they prevail.  (This is absolutely necessary in order for the common man to fight for open records and public meetings in court, an expensive proposition, against a well-funded and intransigent government.) Such is the case in Ohio, that has well-written open meetings and public records laws.

Unfortunately, the Courts have managed to neuter both in Ohio.  In the public records context, the Ohio Supreme Court has interpreted the open records statute, in this decision, to say that if the records are produced before the end of the litigation, no attorneys fees are to be awarded under the Ohio statute.  Now, the Ohio statute does not say that, but … it does now.  In the open meetings context, this decision (for Hamilton County) and this decision (for Butler, Clermont and Warren Counties) say that “discussions” do not have to be in public, but “deliberations” do.  The judicial districts in Ohio disagree on this standard, and the Ohio Supreme Court has declined to clarify the issue. Thus, that distinction between discussions and deliberations is also not in the statute, but … it is now.

This article addressing frustrations with judicial interpretations of the state of Michigan open meetings laws shows that Courts in other states have managed to muddy the waters as well.

In short, most states have fairly clear open meetings and public records laws.  It is up to the Courts to determine if we get to keep them.

In the past decade, businesses, particularly restaurant chains have been utilizing real estate sale-leasebacks as a financing tool. The sale-leaseback typically involves an above market purchase price followed by an above market lease; providing current cash to the seller/lessee and an income stream for the buyer/lessor. Federal tax law encourages this system with favorable tax treatment.

However, this system tends to clash with Ohio’s property valuation scheme mandating that an arm’s-length purchase price was the “market value” for property tax purposes. Thus, much of the federal tax benefit of the sale-leaseback was eaten up by the increased property taxes.

Two recent changes to Ohio law recognize the nature of sale-leasebacks; allowing businesses the carrot of the federal tax advantages without the stick associated with Ohio’s prior tax law.

First, the auditor is now required to determine the value of real property “as if unencumbered,” meaning that the value of the leaseback portion of the sale-leaseback is to be disregarded in determining the value of the real estate (i.e., to the extent the price paid is elevated by consideration of the income stream).

Second, purchase price is no longer dispositive of market value, underscoring the necessity of recognizing the hybrid nature of the sale-leaseback and allowing a proper allocation between the financing tool and the real estate purchase.

Finney Law Firm’s property valuation team is versed in these changes, assisting our clients achieve fair values for properties before local Boards of Revision.

 

It’s fun to turn a losing case into a winner.

The Ohio Real Estate Recovery Fund (O.R.C. Section 4735.12) has the potential of taking a case that can’t be “won,” because the client can’t collect against the defendant, into a “winner” by accessing this special professional indemnity pool.

A plaintiff client who has a claim against an Ohio real estate agent who is insolvent — uncollectable — would typically just “walk away.”  “You can’t get blood from a turnip,” they say.  “Throwing good money after bad.”

But these are not necessarily losing claims.

In the limited instance in which the claim is (i) against an Ohio real estate salesperson or broker, (ii) “on the grounds of conduct that is in violation of” the real estate brokerage laws of the state, and (iii) for an act that “is associated with” Ohio real estate brokerage activities, a plaintiff can recover from the state of Ohio up to $40,000 per licensee (not per claim) any unpaid judgment “that represents the actual and direct loss sustained by the applicant.”

The statute is highly technical to invoke, and the Ohio Division of Real Estate that administers the fund and the Ohio Attorney General’s Office that defends against claims from the fund guard the funds zealously, meaning you have to carefully jump through a lot of hoops to access these funds.

Attorneys in our firm have successfully made a claim for funds from the Ohio real estate recovery fund.

There are separate and similar recovery funds for losses arising from the misdeeds of:

  • Ohio appraisers in the scope of their licensed activities (O.R.C. Section 4763.16).  Claims from that fund are limited to $10,000 per judgment.
  • Ohio auctioneers in the scope of their licensed activities (O.R.C. Section 4707.25).  Claims from that fund are limited to $50,000 per judgment.

Allow us to “make a difference” for you by pursuing claims against a statutory recovery fund of Ohio licensees.

Frequently our firm is asked to represent parties against whom claims have been made, either defendants in a law suit or recipients of a demand for payment pre-litigation.

It’s easy to just dive in and either respond to a demand letter or to defend such a suit, but that impulsive response can unnecessarily cost the client money.

One question that should be addressed early in the engagement is: Are their insurers or indemnitors who might cover the cost of the claim and/or the cost of the defense of the claim?

Almost all individuals and businesses maintain insurance policies of some sort such as property and casualty insurance (property and auto) or public liability insurance.  Some individuals and businesses will also have a variety of specialty insurance policies such as professional liability (i.e., malpractice) insurance, title insurance and fiduciary coverage.  These all are contractual arrangements whereby the risk for many typical occurrences in personal and business life that give rise to claims and suits are shifted to an insurance company — both the underlying claim and the attorneys fees associated with defending the claim.

In addition, the client may have a variety of contractual relationships that transfer the risk to a third party (not an insurance company).  Commercial leases, for example, many times contain risk-shifting provisions for various occurrences (both shifting risk from landlord to tenant and from tenant to landlord).  Employers frequently cover claims against their employees.

In addition to contractual relationships that give rise to indemnity claims, the positioning or actions of parties can cause risk-shifting as well.  For example, if someone borrows your car and wrecks it, injuring others, or if someone trespasses on your property and causes damage to property or injury to person, those third parties can be responsible to the client and the claimant for the costs of the claim and its defense.

An aggressive and creative attorney will — near the outset of the relationship — thoroughly explore insurance and indemnity issues so as to minimize or eliminate costs to the client — costs of both the attorneys fees to defend the claim as well as the costs of the substantive claim itself.

The idea is not for the attorney to make money — but rather to maximize the value to the client by retaining our firm.  If we can shift the risk near the beginning of the relationship to an insurer or indemnity, we have provided that value.  We have “made a difference” for our client!

Read here one example where we made a difference for a client whose prior counsel had failed to advise him of insurance and indemnity issues in a defamation claim.

The Finney Law Firm has been retained by leading real estate attorneys and property owners in Hamilton County to defend our system of “Land Registration” that is being threatened by some of our elected officials.  Read about that process and political battle here (in an unfortunately-slanted piece).

There are two ways in Ohio to hold title to real property — “regular” land title and the Torrens system of registered land.

Under the regular system, evidence of title is placed of record by means of recording of deeds, mortgages, easements, liens and such in the real property records.  Under the Torrens land registration system, title is evidenced by the notations on a single “Registered Land Certificate.”

In Hamilton County, more than anywhere else in the State, we have registered land — and lots of it.  About 20% of all parcels, about 52,000 in total, were voluntarily placed into the system by the owners bringing suit years ago to “register” their title.  Thereafter, all changes to title have to be handled in a careful, methodical system that assures that claims against title and transfers of title are registered on the certificate.  If someone wants to opt out of the system, there is a simple and inexpensive process that can be followed.

Until recently, the only way to de-register land en-masse and without regard to the preference of the owners of the land was to send a certified letter to each property owner, and then, following some significant legal formalities, have a vote of the County Commission to abolish the registration in that County.  Recently, the Ohio legislature dispatched with the mailed notice required to property owners.

Now, under that new abbreviated system, Hamilton County Commissioners are considering a vote to abolish all registered land in the County.  If two Commissioners vote to approve the change, the additional protections that the owners of 52,000 parcels of land in the County have paid for will disappear.

Our firm has been retained to (i) work to defeat such policy change, and (ii) if it is enacted, to bring suit on behalf of affected property owners to overturn such decision.

We are honored to have been selected to help “make a difference” for our clients in this important battle.