Our firm is currently counsel to Hamilton County attorney Joseph Platt, who is challenging a restriction of the Ohio Supreme Court on solicitation of campaign contributions by judicial candidates, and other restrictions on the activities of judicial candidates.

(This makes two cases this firm has that contain issues that are being heard by the US Supreme Court this term.  Both of our cases are First Amendment cases we have pending in federal court.)

This very issue is before the US Supreme Court this term in the case of Williams-Yulee v. The Florida Bar.

The American Bar Association has weighed in on that case with an Amicus Brief in favor of the Florida Supreme Court’s position that solicitation of campaign contributions by judicial candidates should be forbidden.  Read more about that here.

Our client has consented to us highlighting this story as it represents an abuse of the justice system to his great detriment.

Ishton Morton

2014 Cincinnati NAACP President Ishton Morton

In January of 2014, a long-time volunteer for the Cincinnati, Ohio and national NAACP convened his first meeting as President of the Cincinnati branch of that organization, Ishton Morton.  To celebrate that occasion, Mr. Morton purchased dinner for the Board, and thus after the meeting adjourned, Board members assembled in a social gathering to congratulate their new President.

For more than a year prior to that meeting, the local Chapter was riven by a dispute where labor leader Rob Richardson, Sr., who lost a contested election for NAACP President in 2012, and his supporters, consistently protested at and disrupted local chapter Executive Committee and Membership meetings.

When those same dissidents arrived at that January meeting, Mr. Morton blocked their entrance.  Nearly a month later, these visitors filed criminal charges against Mr. Morton.  Sadly, without doing a proper investigation, Cincinnati Police filed criminal charges against Mr. Morton and the prosecutor pursued them.  At first the charges were for assault, then later they were dropped to the minor misdemeanor of disorderly conduct.  Very simply, neither charge was true.

The complaining witness was an employee of competing candidate for the Presidency, Rob Richardson, Jr.,  and the corroborating witness was his sister-in-law.  Mr. Morton, on the other hand, had nine exonerating witnesses saying the events in question simply did not happen.

Our firm was determined to “make a difference” for Mr. Morton, and to defend him against the charges.  But first, we tried to impress upon the City that their charges were misguided and unfounded.  They refused to listen, they refused to properly investigate the claim, they refused to even speak with any of our exonerating witnesses.

The trial convened in September, and took four days over three months to conclude, all before Judge Heather Russell.   From our perspective, not only was the evidence simply overwhelming in favor of the Defendant, but had the police, had the prosecutor taken the time to do their jobs, they themselves would have realized they were prosecuting an innocent man.  They chose not to.

So, we proudly defended an innocent man and on December 17th Judge Heather Russell declared the Defendant “not guilty.”  The Enquirer has the story here.

In the big picture of our courtroom work, defeating the charge of a minor misdemeanor in Municipal Court is small potatoes.  But to defend the honor of an innocent man is a high calling, and we were tremendously proud to have been selected as his counsel and to vindicate his good name.

Our firm “made a difference” for Mr. Morton.

Today’s New York Times explores an interesting and aggressive new suit filed by the U.S. House of representatives challenging the spending power of the President.  It poses the question of how broadly the Administration can re-categorize spending to suit its needs, when an express appropriation is not authorized.

The Courts have created difficult standards as to who has standing to challenge actions of government agencies.  Many times, it seems, there is a “wrong,” a government action that exceeds any constitutional or statutory authority, but litigants struggle mightily to find a Plaintiff and a cause of action to bring the policy before the Courts.  Successively, each claimed Plaintiff, or the timing of the action, is batted down by the Courts applying stringent standards for access to its powers.

Such is the case with House of Representatives v. Burwell, a new action instituted by the House, led by Speaker John Boehner, against the Obama Administration.  Here, however, the “wrong” is manifest and the plaintiff seems strongly and uniquely positioned: Spending bills must originate in the House under the U.S. Constitution.  If the House fails to appropriate monies for the purpose of the expenditure, the expenditure must be illegal and the House be the perfect — and perhaps only — Plaintiff positioned to challenge the spending.

So, it will take three or more years to work its way through the Courts, but this litigation seems positioned to provide some restraint against the power of the Executive.

 

This piece from the Northland News summarizes the results of the Board of Revision work before the Franklin County (Columbus) Board of Revision this past year and a peek at 2015.    Two snippets:

  1. In 2011, a little more than half of the property owners seeking lower adjustments saw some movement toward the amount they considered to be an accurate value.
  2. During the 2014 triennial update, property values in central Ohio trended downward overall.

Our firm continues to practice in this area successfully.  If we can help you with a 2015 valuation, please call Anna Ausman at 943-6651.

How long will it be until I can buy a house again? This is one of the first questions many people ask when filing for bankruptcy and/or after losing a house to foreclosure. The common misconception, often perpetuated by creditors, is that you will never be able to buy another house or that you will not be able to for ten years. This is just not true. New programs allow debtors to purchase a home much faster than they usually think is possible.

The mandatory waiting periods to apply for mortgages backed by Fannie Mae, United States Department of Agriculture (“USDA”), or the Federal Housing Administration (“FHA”) is between one and four years depending on your situation and the type of loan you apply for.

Conventional loans backed by Fannie Mae backed loans have a longer waiting period than those backed by the FHA. Individuals who receive a discharge in a Chapter 7 bankruptcy have to wait four years from their discharge date. Those who filed Chapter 13 bankruptcy have a two year waiting period from the date of discharge. If your Chapter 13 bankruptcy was dismissed you must wait four years from the date of dismissal.

USDA loans carry a three year waiting period for a Chapter 7 discharge. During a Chapter 13, you can receive a USDA loan as quickly as 12 months after filing. You must have both court approval and evidence 12 consecutive Chapter 13 Plan payments. You are also eligible for a USDA loan one year after your Chapter 13 discharge.

The FHA’s new programs may offer the best possible solution for those who have filed for bankruptcy or lost their home to foreclosure. The FHA’s Back to Work – Extenuating Circumstances program allows borrowers to qualify for a new FHA loan just one year after a foreclosure, short sale, deed in lieu of foreclosure, or bankruptcy. This program began on August 15, 2013 and is set to expire September 30, 2016. Not everybody will qualify for this new program but it may be very beneficial for many borrowers.
Individuals can also receive an FHA loan during a Chapter 13 bankruptcy as long as that individual has made 12 months of satisfactory Chapter 13 plan payments and has the Court’s approval.

Your credit score will affect the rates you receive on post-bankruptcy mortgage loans. Your credit score will be low immediately after you file but should consistently rise as you maintain your monthly payments and do not have any further delinquent payments.

As always, please discuss any and all programs with your bankruptcy attorney before deciding on a certain course of action.

With today’s low interest rates and relatively available money from traditional commercial and residential mortgage lenders, seller financing of real estate is not the most popular alternative, but it remains an option.  This article explores the positives and negatives of the three major means of seller financing of real estate transactions.

The three major options are: (i) Lease (with option or obligation to purchase), (ii) Land Contract and (iii) deed with a note and mortgage back to the seller.  Each of the three has its advantages and drawbacks, depending on whether you are the buyer or the seller.

As a general proposition, the “risk” a seller holds is that the buyer defaults, the physical condition of the property when returned is impaired, and getting clear title back in the seller is expensive and time consuming.  From the buyer’s perspective, he does not want to improve real property and pay significant sums toward the purchase  price only to learn at later date that he has to fight to get clear title into his name.  The three instruments offer essentially a spectrum of rights from least to most in the buyer: a lease (with either option or obligation to purchase) gives the least protection to the buyer, a land contract (depending upon its terms) moderate protection, and a deed with a note and mortgage back to the seller the most protection.

Lease.  

A lease essentially gives possessory rights to a tenant in exchange for payment of rent.  Under a lease with an obligation to purchase or option to purchase, some portion of that periodic payment can be applied to the ultimate purchase price.  From a buyer’s perspective, a lease is a precarious instrument, as a default extinguishes the rights of the tenant — potentially both to occupy and buy.  Notice of default and written right to cure provisions can make the instrument more palatable for a tenant, but it is as a general rule the least favorable instrument for the tenant of the three options.

Land Contract.

 A typical land contract is simply a contract to to purchase real estate with (i) a delayed closing and (ii) possessory rights vested in the buyer until closing.  Under O.R.C. Section 5313.07, which applies only to residential property, if the buyer has paid either for five years or more than 20% of the purchase price, in the event of a default a the seller must pursue a foreclosure action, with the proceeds beyond the contract price payable to the buyer.  For commercial contracts, a simpler “forfeiture action” is available, but it still remains more involved than a simple eviction action called for with a lease.  If the instrument is placed of record, a buyer achieve some protection — perhaps greater than that under a lease — from a land installment contact.

Deed, note and mortgage.

The final method of seller financing is the delivery of a deed from seller to buyer, and taking back by the seller of a note for the payment of the remaining purchase price and a mortgage securing that payment.  This method necessarily entails vesting in the buyer the equity in the property net of the balance due the seller.  All that’s left in the seller is the right to collect payment of the mortgage balance, and whatever protective covenants are there for seller’s protection.

All three methods of seller financing involve risk on the seller that the buyer impairs title to the property through unpaid taxes, utility bills and the like, or, more likely, failure to maintain the property in the fashion that the seller anticipates.  These issues can be addressed to some extent through good contract terms and tight management of the asset, but in the end the seller will retain some risk as to these issues.

But fundamental structure of the transaction, choosing one of the three options set forth above, will dictate the relative position of the seller and buyer in that deal.

 

 

House Bill 343, which addresses a number of education issues, is currently  pending in the House Education Committee. On November 13, 2014, a provision was addedto the Bill to eliminate the minimum teacher salary schedule from state law. Under the current law, the minimum salary schedule provides a framework for paying teachers commensurate with their experience. Critics of the minimum salary schedule have long pushed for a merit-based salary system under which teachers would receive salary increases based on performance rather than experience. Proponents of the salary schedule argue that it aids low-income districts in attracting teachers, and helps prevent discrimination. Teacher pay remains a divisive issue and there is sure to be opposition from democrats and teacher unions as the Bill moves through the General Assembly. The Bill must pass through the House and Senate before it can become law, and will likely be amended a number of times before it reaches the Governor’s desk. We will be following House Bill 343 as it makes its way through the legislature.

Preparing the appropriate estate plan for an individual requires the legal skills of an attorney to put together the right documents in the right combination.  At a minimum, the following estate planning documents are recommended by most attorneys:

Last Will and Testament.  A Last Will and Testament is a legal declaration that directs the distribution of probate assets upon the death of an individual (“testator”).  Probate assets are assets held in an individual’s name at the time of his or her death that do not otherwise transfer by contract (e.g., transfer on death designations, joint and survivorship, etc.).

Probate assets are subject to the oversight of Probate Court and administered in the County in which the decedent resided at the time of death.

The Last Will and Testament includes a provision for the designation of the personal representative (Executor) of the testator’s choosing, to be appointed by Probate Court.

Without a Last Will and Testament, the property passes in accordance with the Ohio Statutes of Descent and Distribution.

Durable Power of Attorney.  A durable Power of Attorney is an instrument by which one person (the principal) appoints another person (the attorney-in-fact) as an agent authorized to perform specific or general acts for the principal.  This financial power of attorney can be a very simple document, but one that gives significant powers to the attorney-in-fact.  This estate planning tool is capable of facilitating the management of an individual’s affairs during incompetence.

 Durable Power of Attorney for Health Care.  Ohio law permits an individual to execute a Durable Power of Attorney for Health Care.  With this document, an individual can designate a person to make health care decisions if the individual is unable to make such decisions on his or her own behalf.

The individual signing the Durable Power of Attorney for Health Care must be of sound mind.  The decision maker may not be the attending physician or the administrator of any health institution involved in the patient’s care.

Generally, the person appointed in the Durable Power of Attorney for Health Care will have the authority to give informed consent, refuse to give informed consent, and to withdraw consent for any medical treatment.  However, the person holding the Power of Attorney will not be able to refuse or withdraw consent to health care needed to maintain life, except in very limited circumstances.

Living Will.  A Living Will is a document that provides a means for an individual to declare his or her intentions regarding the withholding or withdrawal of life-sustaining treatment, including CPR, when he or she is no longer competent to make an informed medical decision and is in a terminal condition or a permanently unconscious state.

Ohio’s Living Will law distinguishes between patients who are terminally ill and those who are permanently unconscious.  Although both conditions must be verified by two (2) doctors, in Ohio there are additional protective measures for the permanently unconscious.  Food and water may not be withheld from a permanently unconscious individual unless the patient has signed a Living Will with a special section in capital letters, which special section must be signed or initialed.

Under no circumstances may an individual be denied comfort care.  Comfort care is defined as the minimum amount of care administered to alleviate pain and suffering, but not to prolong life.

This article from our friends at Kegler, Brown, Hill + Ritter addresses the record low pass rate for Ohio’s Bar exam.  Is it a policy to make it tougher to be admitted in Ohio or a less-prepared crop of students?  The fact that the trend from 2009 to 2013 was consistent would militate against the former and in favor of the latter.  It may also be an outlier.

In any event, we need attorneys well prepared for the rigors of the profession.

The Finney Law Firm was retained to represent Councilmember Christopher Smitherman in the matter of an ethics complaint that was filed against him by a Cincinnati attorney arising from the Mahogany’s loan default.  This week, that ethics complaint was dismissed as being entirely without merit.

The background to the matter is that in early 2012 the City made significant loans and grants to Mahogany’s Restaurant in order to bring an African-American-owned and -themed restaurant to the Banks.  Smitherman realized from the initiation of the project that the operator (Liz Rogers) was not qualified for an extension of City credit.  Unbeknownst to Smitherman, before his vote on Council, Rogers had approached his brother (Albert Smitherman) for some advice about how to complete the construction project, which Albert provided without charge.

After Rogers’ default on the loans, her attorney pointed the finger at Smitherman, claiming (falsely) that Smitherman’s votes and public pronouncements against the project were because Rogers has been approached by and later spurned Albert Smitherman’s company.  The allegations were completely and demonstrably false.

This year, after Rogers’ loan default, Rogers’ attorney filed a Complaint with the Ohio Ethics Commission containing the false allegations, presumably to achieve some benefit in getting City Council to forgive her loans.

The Ohio Ethics Commission has a multi-step process to consider Complaints brought before it: staff review, initial Commission review, investigation and final disposition.  The Smitherman Complaint was so completely lacking in merit, it was dismissed at the very first stage — staff review.

The Finney Law Firm was proud to represent both Christopher Smitherman in the ethics matter, and Albert Smitherman in the allegations made against his company.