Arkansas brutal landlord - tenant law

According to a recent report from Human Rights Watch,

"Under Arkansas’s failure-to-vacate law, a landlord can demand that a tenant move out of a property within 10 days if the tenant does not pay the rent in full and on time. Any tenant who fails to do so is guilty of a misdemeanor. There is no way for tenants to present their side of the story in court without risking a criminal conviction. "

Read the press release.

Who cannot own a gun - Gun Control Act of 1968

Federal law, as it has been for almost forty-five years since the Gun Control Act of 1968, makes it generally illegal for the following to buy or possess firearms:

1. Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
2. Is a fugitive from justice;
3. Is an unlawful user of or addicted to any controlled substance;
4. Has been adjudicated as a mental defective or committed to a mental institution;
5. Is an alien illegally or unlawfully in the United States;
6. Has been discharged from the Armed Forces under dishonorable conditions;
7. Having been a citizen of the United States, has renounced U.S. citizenship;
8. Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner, or;
9. Has been convicted in any court of a misdemeanor crime of domestic violence.

18 USC § 922 - Unlawful acts
Gun Control Act of 1968

Characterizing the exemption

Reading only the Florida's Head of Family exemption statute § 222.11, one might think in terms of two related exemptions; one for disposable income less than the statutory amount, which is exempt from garnishment, and another conditional exemption for disposable income greater than the statutory amount.  

§ 222.11(2) currently provides, in part, as follows:

"(a) All of the disposable earnings of a head of family whose disposable earnings are less than or equal to $750 a week are exempt from attachment or garnishment.  

"(b) Disposable earnings of a head of a family, which are greater than $750 a week, may not be attached or garnished unless such person has agreed otherwise in writing . . . . "

The logic of this two-exemption characterization has definite pleading and proof implications. The most significant of these would be to put the debtor into the difficult position of proving a negative proposition: That there was no written agreement relinquishing the exemption over the statutory limit.

However, Usameribank, A Florida Corporation v. Richard Nelson Klepal (2011) makes it clear enough that Florida courts tend to characterize Section 222.11 as being a unitary wage exemption with the possibility of a partial waiver. Both the trial and appellate courts discussed the issues in terms of exemption and waiver, with Judge Whatley's dissenting opinion focusing upon the essential characteristics of a valid waiver.

When reading Usameribank v. Klepal, it is important to remember that the loan documentation in issue originated in 2007, and that Section 222.11(2)(b) was subsequently amended to include specific requirements for a valid waiver:

" . . . . The agreement to waive the protection provided by this paragraph must: 

"1. Be written in the same language as the contract or agreement to which the waiver relates;
"2. Be contained in a separate document attached to the contract or agreement; and
"3. Be in substantially the following form in at least 14-point type:  

"IF YOU PROVIDE MORE THAN ONE-HALF OF THE SUPPORT FOR A CHILD OR OTHER DEPENDENT, ALL OR PART OF YOUR INCOME IS EXEMPT FROM GARNISHMENT UNDER FLORIDA LAW. YOU CAN WAIVE THIS PROTECTION ONLY BY SIGNING THIS DOCUMENT. BY SIGNING BELOW, YOU AGREE TO WAIVE THE PROTECTION FROM GARNISHMENT.  

 "(Consumer’s Signature) (Date Signed)

"I have fully explained this document to the consumer. 

 "(Creditor’s Signature) (Date Signed)"

The Usameribank v. Klepal opinion did not disclose the nature of the original loan involved. Whether is was a business loan or a consumer loan might have had some bearing upon the majority opinion. The law frequently holds business people to a higher standard of sophistication than it does consumers. However, the Florida legislature clearly opted to require full and detailed written disclosure of the exemption right being waived.

When a general denial is not good enough

Moving past the statutory language of Florida's Head of Family garnishment exemption brings me to read a few Florida appellate court decisions on the subject. The first opinion I encounter is Caproc Third Avenue, LLC v. Donisi Insurance, Inc., 67 So.3d 312, 313 (FL 4th DCA, 2011), and I see how easy it might be for a non-lawyer to misread the meaning of the court's decision.

Judgment debtor defendant Donisi filed a sworn affidavit to claim the Head of Family exemption and the creditor's attorney swore an oath to nothing but a general denial.

As the Florida District Court of Appeal, Fourth District, described it:

". . . . Caproc’s attorney, Justin D. Jacobson, Esq., responded by executing an affidavit entitled “Plaintiff’s Denial Under Oath of Defendant’s Affidavit for Exemption from Garnishment Under Florida Statute § 222.12. The attorney’s affidavit stated that he personally appeared before a notary and that, after being duly sworn, pursuant to section 222.12, Florida Statutes (2009), 'Plaintiff hereby denies under oath that the Defendant is entitled to the exemption claimed in the Affidavit for Exemption.' The judgment debtor moved to strike the attorney’s affidavit on the grounds . . . . " [emphasis added]

The trial court judge granted Donisi's Motion to Strike (See note below) Caproc's affidavit and the appellate court agreed that the affidavit was legally insufficient. While the appeals court discussed in some detail the statutory necessity of plaintiff itself to swear the opposing affidavit, I contend this is the least significant aspect of the the opinion.

If Caproc's attorney had produced credible specific evidence that Donisi had falsified his claim of exemption, I doubt that any Florida judge would care much who signed the affidavit. Every good judge would want to hear more, at a formal court evidentiary hearing.

In other words, even if plaintiff Caproc had made the exact same affidavit, I'd argue the affidavit was still legally insufficient.

-oOo-

Note: Judges generally do not take significant action in a case unless one of the parties makes a formal request, either in writing or orally in open court and on the record. If there is a problem with an opposing party's affidavit, a Motion to Strike is one good way to bring it to the court's attention.

Florida garnishment - ongoing examination

Two days before Thanksgiving this year I read the following from a total stranger,

"I use to live in TN in 2009 and was evicted from my apartment the apt filed a writ of garnishment through the court I made arrangements as was paying, however I moved to FL 2010 and called the attorney office that was handling the case many times they refuse to call me back because I have a out of state number..we are now 2012 and they have started taking 25% out my pay check what can I do to stop this?"

It started me thinking. After nearly a dozen posts of mine on the general topics of garnishment, exemptions and interstate mobility and employment, I have barely scratched the surface, and I am still thinking about it.

1. A checklist for the wage garnishment debtor
2. Across state lines
3. What's the maximum amount of wage garnishment?
4. Florida wage garnishment exemption for head of household
5. Florida's Head of Family exemption applies to bank deposits
6. An eight-point case caption - a Florida example
7. Drafting a Florida claim of exemption from garnishment
8. Why not a legal form for that?
9. What is a verified pleading?
10. Shifting burdens
11. 5 ways to attack an affidavit

It may not be obvious how some of these posts relate to the original question about garnishment, but they do. If you are looking for a cookbook prescription for how to end the pain of wage garnishment quickly, simply, easily, inexpensively and risk free, this is not it. Merry Christmas anyway.

5 ways to attack an affidavit

A unilateral sworn and signed written statement of facts, voluntarily made, is known as an affidavit. One who swears an oath and signs is called an affiant. An affidavit is not a court pleading, per se, because it may originate from a non-party and affidavits generally do not ask the court to take action. A similarly sworn court document is called a verified pleading.

Affidavits are frequently used in the preliminary stages of court proceedings, but only rarely are they admitted as evidence at trial. Affidavits are used in emergency situations when time is short and the need for court action is great, such as with emergency protective orders. Affidavits are also used to increase court efficiency by identifying those situations where the facts are not disputed. If there really is no disagreement between the parties about what happened, then there may be no genuine need for the time and expense of a full-blown trial, and a motion for summary judgment may be justified.

Regardless of the use to which an affidavit may be employed in modern legal practice, the characteristics of a well-crafted affidavit are the same throughout. I am indebted for this to an excellent article published in the January, 2010, issue of the South Carolina Lawyer by attorneys Christopher Kelly and Laura Simons, Attacking Affidavits: Maintaining the Integrity of the Process, and a 2008 memorandum of law by Andrea Kuperman, Admissibility Requirements for Summary Judgment Affidavits. In general, an affidavit may be attacked for the following reasons:

1. If the formalities of a sworn statement are lacking. An affidavit should show that the person signing the statement was first sworn to an oath that the statements are true and then be at risk for the penalties of perjury if they are not true.


2. If the person making the affidavit is not a competent witness. A competent witness is capable of understanding the serious nature of a sworn oath. A very young child or one suffering severe mental disability may not qualify as a competent witness in general. Likewise, one who is profoundly intoxicated or under the influence of powerful medications may be temporarily incompetent to make a meaningful oath. An affidavit should state facts that establish the affiant’s competency.


3. If the affiant is an attorney for one of the parties. In most jurisdictions it is a violation of professional ethics for an attorney for one of the parties to be a witness. I can think of no good reason why an offer of evidence by way of an affidavit should be an exception to this. This is not an issue of competency.


4. If an affidavit is to be used in a legal proceeding, it should contain specific statements of fact that would be admissible as evidence at trial, just as if the affiant were testifying as a live witness in court. All the rules of evidence concerning firsthand knowledge, opinion, speculation, hearsay etc. may come into play.


5. In a similar vein, the statements of fact in an affidavit should be specific. Although vague and conclusory statements of ultimate facts may be appropriate for notice pleading, they are not useful as proof.

This is but a brief overview. As with all else, check your local jurisdiction.

Shifting burdens

Shifting burdens

Everyone who watches Hollywood-based television has been exposed to the concept called burden of proof. Law and order type crime drama and popular press news coverage of reality-based criminal trials has made the government’s burden of proof beyond a reasonable doubt part of the shared cultural experience. Almost as many people understand that in non-criminal, or civil law, court proceedings, the party with the burden of proof is subject to a somewhat less stringent standard which is frequently phrased as proof by the preponderance of the evidence.

Yet ‘burden of proof’ is not a unified or monolithic concept. The phrase is simply a shorthand expression of two distinct but related procedural concepts:

• The burden of moving forward by producing admissible evidence, and; 
• The burden of persuasion. 

 The popular conception for burden of proof emphasizes the latter element, or the burden of persuasion. The burden of persuasion generally does not shift from one party to another during the course of a court or administrative proceeding, but sometimes it can.

The burden of persuasion may not rest exclusively on just one side of a legal proceeding. One party may bear the burden of persuasion on some issues, but with respect to other legal issues the burden may rest on the opposing side. It all depends on the specific issue.

The burden of going forward with evidence, however, may shift several times from one side to another during the full course of a proceeding. Using a criminal law example, at the very beginning of a case immediately following arrest by the police, the government prosecutor may have the burden of producing enough credible evidence to persuade a judge or magistrate there is ‘probable cause’ to believe a crime was committed by the defendant to justify his or her temporary incarceration. Probable cause is a much less stringent burden of persuasion compared to ‘beyond a reasonable doubt.’

If the matter proceeds to trial, the government again goes first with the burden of introducing at least some evidence for every single element of a crime and that the defendant is the one who did the deed. When the government completes its offer of evidence, or rests its case, the burden to move forward shifts and the defendant has an opportunity to offer evidence to contradict or confound the government’s case, if the defendant chooses to do so. In many states the burden to prove an insanity defense rests on the defendant, who must introduce evidence and persuade in order to be successful.

If any phase of a legal proceeding ends with the party bearing the burden to produce evidence fails to do so adequately, and there is zero evidence in support of one or more of the essential legal elements of a claim or defense, the judge may summarily terminate the proceeding, in whole or in part, in favor of the party on the other side.