A P U B L I C AT I O N O F T H E G R A N D R A P I D S BA R A S S O C I AT I O N
The Grand Rapids Lawyer
2013 Benefit Dinner featuring
Serve. Educate. Promote Justice. MARCH / APRIL 2013
THE GRAND RAPIDS LAWYER is published by the Grand Rapids Bar Association Waters Building 161 Ottawa Ave., NW, Suite 203-B Grand Rapids, MI 49503 www.grbar.org 616.454.5550 / 616.454.7707 fax Editorial Karen N. Flick Anne Marks-Gaertner Advertising Coordinator Debbie Kurtz STAFF
IN THIS ISSUE:
4 Presidentâ€™s Perspective By T.J. Ackert
9 GRBA Annual Meeting 10 Photo Opportunity
5 YLS Update By Charles W. Kierpiec
12 Upcoming Events
7 E.D. Torial By Kimberly A. Coleman
13 2013 Officer & Trustee Elections
7 Welcome New Members
14 Criminal Notes By Timothy K. McMorrow
Executive Director Kimberly Coleman/ext. 105 email@example.com
8 LAC Guest Article By Chris Hastings
Executive Assistant/Membership/ Inns Administrator Debbie Kurtz/ext. 101 firstname.lastname@example.org
MARCH 2013 1 2
Communications Specialist/ Administrative Assistant Karen N. Flick/ext. 100 email@example.com Lawyer Referral Administrator Nancy King/ext. 107 firstname.lastname@example.org OFFICERS & TRUSTEES President T.J. Ackert . . . . . . . . . . . . . . . . . . . . . . 616.831.1730 President-Elect Kristin M. Vanden Berg. . . . . . . . . . 616.456.2468 Vice-President Thomas R. Behm . . . . . . . . . . . . . . . 616.235.5500 Secretary Nikole L. Canute. . . . . . . . . . . . . . . . 616.632.8000 Treasurer A. Todd Almassian. . . . . . . . . . . . . . 616.364.2100 Immediate Past President Mark R. Smith. . . . . . . . . . . . . . . . . . . 616.235.3500 Trustees David E. Bevins. . . . . . . . . . . . . . . 616.235.3500 Dennis J. Donohue . . . . . . . . . . . 616.752.2192 Elizabeth Joy Fossel . . . . . . . . . . 616.336.6000 Patrick F. Geary. . . . . . . . . . . . . . . 616.458.5358 Benjamin H. Hammond. . . . . . . 616.458.3600 Sarah Riley Howard. . . . . . . . . . . 616.752.2541 Hon. William G. Kelly. . . . . . . . . . 616.554.0717 Edward P. Perdue. . . . . . . . . . . . . 616.458.1300 Suanne Watt-Stay . . . . . . . . . . . . . 616.732.1741
ON THE COVER: On February 14, 2013 The Justice Foundation of West Michigan welcomed The Second City comedy troupe to town for our biennial Benefit Dinner. A great time was had by all. For more photos, see pages 10-11.
15 Counsel Beware: Mortgage Foreclosure = Debt Collection under FDCPA By Melissa B. Papke 17 Member Notes 18 Where the Lawyers Were By Frank Spies 19 Foundation Benefit Diner
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12 Labor & Employment Section Meeting Noon University Club 12 Ask-the-Lawyer Employee Rights 6:00pm Grand Rapids Public Library Downtown Branch 14 Criminal Law Section Meeting Noon University Club 14 Young Lawyers Section Meeting Noon Warner Norcross & Judd 19 Solo & Small Firm Section Meeting Noon University Club 21 Board of Trustees Meeting Noon Waters Building 21 Probate/Business & Tax Section Noon University Club 27 Family Law Section Meeting Noon University Club
MAY 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31
3 Young Lawyers Section Happy Hour
1 Young Lawyers Section Happy Hour 5:30pm
8 American Inns of Court 5:00pm University Club
6 American Inns of Court
8 GRBA Elections Begin Via Electronic Voting
9 GRBA Annual Meeting 6:00pm The B.O.B.
11 Young Lawyers Section Meeting Noon Warner Norcross & Judd
14 Ask-the-Lawyer Social Security Disability 6:00pm Grand Rapids Public Library
16 Corporate Counsel Section Meeting Noon TBD
16 Board of Trustees Meeting Noon Waters Building
17 Family Law Section Noon University Club 18 Board of Trustees Meeting Noon Waters Building
22 Family Law Section Noon University Club 27 Memorial Day Office Closed
18 Foundation Fellows & Life Members Reception 5:00pm Amway Grand Plaza Hotel 30 Law Day Celebration 11:45am University Club
SAVE E! T the DA
28 Environmental Law Section Meeting Noon University Club
ge 12 see pa s! ail for det
The Grand Rapids Lawyer
The Legal Ecosystem
BY T. J. ACKERT MILLER JOHNSON
tart Garden, the venture fund and business incubator developed by Rick DeVos and his team, likens itself to creating an ecosystem that helps ideas become businesses. If you attend a Start Garden event you will immediately recognize the energy and networking that occurs around “unplanned” discussions about business and ideas. We might do well as a profession to liken ourselves to creating an ecosystem that helps sustain business and communities.
"My premise is that the concept can be enlivened with a new focus by each attorney… so as to enrich and sustain both the attorney and the business/ community."
The concept is not new. Our profession has long been associated with business and community affairs. My premise is that the concept can be enlivened with a new focus by each attorney on how his or her work can be collaborative with business and community so as to enrich and sustain both the attorney and the business/community. How would this look? The Justice Foundation of West Michigan, the charitable arm of the GRBA, provides legal services to the disadvantaged by, among other things, funding support for legal assistance to migrant workers. A firm or solo practitioner that provides immigration services may decide to fund a program of the Justice Foundation, provide pro bono services for migrants, and join an association or political action group to advocate for immigration reform and related rights. The Grand Rapids attorneys would then connect with attorneys in other cities to share resources, knowledge and expand connections. Certainly, there are attorneys who are engaging in these activities and service projects as noted in prior President’s messages. Again, my premise is that we should each ask ourselves whether we can bring a more intentional focus on how our
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connections and involvement may become a source of collaboration and advocacy for the benefit of the businesses we represent and the communities in which we live, beyond our current impact. Richard Roane and Connie Thacker have engaged in such “intentional focus” to expand their connections and advocacy for individuals they represent in family law matters. Specifically, they have been appointed co-chairs of the LGBT Alternative Family Committee of the American Academy of Matrimonial Lawyers. The Committee is a collaborative effort of attorneys throughout the country advocating for laws and policies to fairly address issues relating to same-sex couples, including tax benefits, insurance coverage, hospital visitation, and custody rights. As Connie Thacker recently stated, “You can have views for or against these issues, but they are coming to a courthouse near you.” Rather than have uncertainty in addressing these issues, including the distribution of wealth, ownership of businesses and connections of families, the Committee, spear-headed by our own Ms. Thacker and Mr. Roane, advocates for a uniform approach. The Bar has attorneys who represent clients involved in or have a passion for life sciences, medical ethics, domestic violence, restorative justice, religious rights, as well as the more mundane business interests relating to manufacturing, construction, and entertainment, to name a few. Do we engage in these fields only to the extent it furthers our own interests or do we sustain an ecosystem that advocates for, shapes and enriches these business and community interests?
YLS Update A Service Profession BY CHARLES W. KIERPIEC McSHANE & BOWIE
e work in a service profession. Many of us joined in part to use our abilities to help others in pursuit of a just cause. We took an oath: “I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed.”
passions. We operate at a pace where very few, if any of us, is asked to make an all-consuming commitment to our employer, as can happen in big cities with global firms.
“The best way to find yourself is to lose yourself in the
And there can be no question service often benefits the giver as much as the But the daily grind, especially for young recipient. Scores of research studies have lawyers in the new economy, can quickly found connections between improved ~ Mahatma Gandhi make us lose sight of those aspirations. In mental and physical health, on the one a stronger economy, other young lawyers hand, and activity in volunteer and I knew were focused almost single-mindedly on honing service projects, on the other. Also, pro bono work is one their craft and trying to keep an imposing workload from of the best ways for a young lawyer to develop a skill set she commandeering other personal goals. Now, we should be can use to develop and specialize her practice. so lucky. We have to work just as hard for much more One easy way for a young lawyer to commune with modest goals, like simply finding a job after graduation. others in community service projects is to become However, the current climate enables us -- almost more involved in the Young Lawyers’ Section. In demands us -- to focus more on how we can use our just the last eighteen months, YLS has established talents to help others. More people are in need of mentorships for over 20 young lawyers; raised at basic legal assistance; for proof, just walk into a least four cargo vans full of clothing and over district courtroom during an eviction session. $2,000 for needy families through its Horn of More lawyers are in need of mentors and Plenty program; had scores of young lawyers employment opportunities. participate in volunteer projects with Habitat for Humanity and Kids Food Basket; and At the same time, most of us have more offered substantial donations to other Grand time to give to pro bono or volunteer projects. Rapids charitable organizations such as More Perhaps because of the recent downturn, Self-Less. Americans are increasing their commitment to volunteering and civic engagement. In 2011, the While ample opportunities are out there for number of volunteers reached its highest level in five all of us to help others in need, I’m not writing years. 64.3 million Americans volunteered in a formal this because it’s always easy to be conscious of it. organization, devoting 7.9 billion hours of time with a Given all of the competing demands on our time value of $171 billion. and livelihood, it can be difficult to remember. But if we do our best to be mindful of what we can So, while each of us is vulnerable to the contribute, hopefully we can be a generation of macroeconomic conditions beyond our control, none of young lawyers that did not just survive a recession, us is a cog. One benefit of practicing in Grand Rapids is but became something better in spite of it. To that it’s easy to see in a relatively short amount of time paraphrase another historic quotation about service, that one person can make a meaningful community each of us can be great because each of us can serve. impact. It doesn’t take long in a town our size to find other lawyers or service-oriented people with the same
service of others.”
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The Grand Rapids Lawyer
It’s Your Turn Now
Heather R. Abraham Kelechi Adibe Adam Benitez Derek Bruinooge
BY KIMBERLY A. COLEMAN · EXECUTIVE DIRECTOR
Scott R. Carvo
Nichole J. Derks
ne of the greatest rewards a colleague or associate can receive is personal acknowledgement. Recognition and awards programs honor individual efforts and accomplishments and strive to make the organization and/or association a great place to belong.
and the community. Nominations should reflect the contributions of a member whose service stands out for its extraordinary impact on the life of the community. Recipients have included Rosemary Scott, Floyd Skinner, and Bud Roegge.
As you know, these types of programs can increase personal productivity and client satisfaction levels. They also improve motivation and commitment, creating an environment in which personal and organizational goals align. What is more, our good work should not go unrecognized. Your colleagues need to feel valued and appreciated. When employees give their lives to an organization/profession, they feel part of a team and family. They spend more time with their work team than perhaps many other relationships in their lives. Recognizing the contributions employees make helps solidify these relationships and fosters employee loyalty.
Liberty Bell Award – in conjunction with Law Day, is intended to honor outstanding citizens in the local community. This award recognizes outstanding service performed by a nonlawyer who has given his or her time and energy to strengthen the effectiveness of the American system of freedom under law, in keeping with the spirit of our Constitution. Past recipients of this award include: The Prostitution Roundtable, CASA of Kent County, and Janice Yates for her work with East Grand Rapids High School’s, We the People Team.
Nicholas Francis Xavier Gumina
President’s Award – recognizes special contributions made by a GRBA member in service and/or support to the GRBA Board of Trustees, Executive Committee and Executive Director. Past recipients include Kris Vanden Berg, Bruce Courtade, and Randy Velzen.
Amanda E. Misch
The Grand Rapids Bar Association offers different recognition and award opportunities such as the Worsfold Award, President’s Award, and Liberty Bell Award. We also recognize members with 50 Years of practice. Some of the awards date as far back as 1962, most are given annually, and all are presented during the Law Day Luncheon. While a more detailed list of recipients and the nominations form are available with this link, brief descriptions of the awards are as follows: Worsfold Award – is considered the most prestigious award, given to recognize a member of the GRBA for a career of service to the Bar, profession
We know that not every social style needs public recognition, but even the most introverted person appreciates recognition for a job well done. It’s time to honor our best… complete your Visit our nomination today. website for The deadline for nomination forms submission is and complete March 30, 2013. lists of past recipients. grbar.org
Jacob Dunlop Dava M Fraser G. Charles Goode Miles Greengard C. Ryan Grondzik Thomas A. Hallin Mike Haskell Thomas Hillegonds Julie Ann Jackimowicz Anne E Jbara Wuanda M Jenkinson Tobijah Koenig Mickey Larson Gregory A. Lewis Zoe S. Martinez Alicia Marie McCarthy Stephanie D Myott Shashu Polk Patricia S Riley Jacob J. Sadler Shawn L. Shaw Aubri Nicole Sheremet Dustin Shunta Amethyst Smith Emmalee J. Spencer Emily Marie Stachowicz Kelley E. Stoppels Roosevelt Thomas Kevan W. Ventura
The Grand Rapids Lawyer
R A E H U O Y D I D UT O B A E N O E H T THE L AWYER? BY CHRIS HASTINGS · THOMAS M. COOLEY LAW SCHOOL PRESIDENT OF THE BOARD OF TRUSTEES OF THE LEGAL ASSISTANCE CENTER
“Hey, (your name here), you’re a lawyer; you’ll like this one.” It’s happened to you a thousand times. After the punch line you might smile and move away. You might even share good-humoredly another joke that you’ve heard. You know, of course, that none of these stories are true, or fair, or anything close to descriptive of the life of a lawyer. In the annals of American humor, alas, no act is beneath the compassion of the scurrilous attorney. Chris Hastings enjoyed 20 years of private practice in Grand Rapids, and is now a full Professor of Law at Thomas M. Cooley Law School’s Grand Rapids campus. He serves as President of the Board of Trustees of the Legal Assistance Center.
Next time it happens, consider meeting the joke with a true-to-life lawyer story, one in which you play a part: “What do you call a community of lawyers which found an unmet societal need, and met it with hard work and money from their own pockets? Did you hear the one about the Legal Assistance Center?” The Legal Assistance Center was founded in 2002 with the sweat and foresight of many of our best, and the moral and financial support of every single law firm in Grand Rapids. The need? Access to a promise that is in our Pledge of Allegiance: Justice for All. Lawyers understand justice is not a result, it is a process. In 2002, our legal community understood that the promise of justice was falling short for all too many people who could not negotiate the legal system on their own. Although many of us donate time and money to Legal Aid and related causes, free lawyer services are available in only the most egregious cases despite our generosity. To keep the promise of “justice for all,” communities need access to resources that will help those embroiled in our legal system to tell their own story, or they will not realize their Constitutional opportunity to be heard. Often nothing more is needed than the right court form and instructions on motion fees and noticing a motion.
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When it was conceived, the Legal Assistance Center was visionary. Now that the vision of its founders is achieved, the success of the LAC is being replicated in other communities in Michigan and across the nation. And it was all done by lawyers who, jokes notwithstanding, enjoy a catholicism of values inculcated by their education and oath. Lawyers, by the very nature of their profession, champion every cause and every person, because individually we are charged with representing our clients, be they saints or sinners. Our job is to ensure their story is told, and told well, so that when they are called to justice, each gets the best justice available. It is no mystery why others might question our values. They don’t understand that we are in the service of a system of laws that is designed to ensure everyone’s story is told. There is no better way to teach that lesson, in my view, than to spread the gospel of the Legal Assistance Center--to support it by word and deed. Last year, the Legal Assistance Center gave over 17,000 citizens the tools they needed to tell their own story, so they could have access to justice. Even those who don’t get the result they seek are more accepting of the result they get, because their story has been heard. Aristotle called it katharsis. The next time you hear a lawyer joke, meet it with your own lawyer story—the one above— and invite the jokester to share a similar story from his profession. Or invite him to write the LAC a check to support its work. And by all means, keep writing your own checks to the LAC. The battle is joined, but it is not won until “justice for all” is more than a few words schoolchildren recite at the beginning of the day.
JOIN US FOR THE 2013 GRBA ANNUAL MEETING:
South Chicago Blues May 9, 2013 6:00pm @ The B.O.B. Renew old friendships and forge new ones in a relaxed social setting. With just a few minutes of official business on the schedule, you will have plenty of time to enjoy the food, the music and the company of your fellow Bar members.
Tickets are $50 each
This year, we celebrate the music and food of America’s second city, Chicago. The resonant sounds of Muddy Waters, Buddy Guy, and the incomparable Koko Taylor inspire a rich menu of comfort foods and barbeque.
(each includes 2 drink tickets).
Guests are welcome! To order tickets, use the form below or go online to http://m360.grbar.org/event. aspx?eventID=72852.
Grand Rapids Bar Association Annual Meeting: I would like _______ tickets at $50 each. (Each includes 2 drink tickets) I am enclosing a check (made payable to the Grand Rapids Bar Association) for $___________ . Names of Attendees:
Please send my tickets to:
Please return this form to: Grand Rapids Bar Association, 161 Ottawa Ave NW, Ste 203-B, Grand Rapids, MI 49503 grbar.org l Mar/Apr 2013 l The Grand Rapids Lawyer 9 Questions? Call the Bar at 616.454.5550
J U S T I C E F O U N DAT I O N O F W E S T M I C H I G A N
Benefit Dinner 2013
More photos at our websiteâ€Ś
Upcoming Events Law Day Celebration & Awards Luncheon Realizing the Dream: Equality for All Please join Thomas M. Cooley Law School and the Grand Rapids Bar Association for our annual Law Day Celebration & Awards Luncheon. Registration is $25 and includes lunch. To register go online to http://m360.grbar.org/event.aspx?eventID=72855 or call 616-454-5550.
Save the Date!
Justice Foundation Fellows & Life Members Reception Fellows & Life Members of the Justice Foundation of West Michigan are invited to join us for a reception on Thursday, April 18, 2013 from 5:00-7:00pm at the Amway Grand Plaza Hotel. Hors d’oeuvres, beer and wine will be served. Please watch your mail for formal invitations.
Legal Aid of Western Michigan is planning their
Watch your email for the invitation
es g d Ju me
v s . b a ll G a M A ft WL ual So A nn
JUN 12 The Grand Rapids Lawyer
Graciously hosted by L. Roland ‘Bud” & Marjorie Roegge
E DAT H T E
for May 30, 2013 at 5:30 p.m. - 7:30 p.m.
Make a Difference One Case at a Time ~ House Party
, E 15
2 01 3 E L E C T I O N S
Nomination Committee Announces 2013 Candidates Electronic Voting will begin April 8, 2013 Pursuant to Article III of the Bylaws, you are notified that the Nominating Committee, appointed by T.J. Ackert, President, and approved by the Board of Trustees, has made these nominations for the 2013 Elections. The Nominating Committee members were Thomas R. Behm, Linda Jo Carron, Rick Gaffin, Joseph Gavin, and Kristin Vanden Berg.
Richard E. Hillary, II Secretary
Patrick F. Geary Vice President
Larry Murphy Vice President
Randall L. Velzen Secretary
Elizabeth K. Bransdorfer Treasurer
Kevin J. Oâ€™Dowd Treasurer
Daniel W. Borst Trustee
Marcus Ray Jones Trustee
Brian K. Lawson Trustee
James R. Oppenhuizen Trustee
Courtney L. Quist Trustee
Julie M. Westra Trustee
FOR A PERIOD OF TEN (10) BUSINESS DAYS AFTER THE PUBLICATION OF THIS NOTICE, UNTIL MARCH 22, 2013, THE BOARD SECRETARY, NIKOLE L. CANUTE, WILL RECEIVE ADDITIONAL NOMINATIONS FOR OFFICERS AND TRUSTEES. NOMINATIONS MUST BE MADE IN WRITING, MUST BE ENDORSED BY AT LEAST FIFTY (50) ACTIVE MEMBERS, AND RECEIVED AT THE BAR ASSOCIATION OFFICE NO LATER THAN 12:00P.M. ON MARCH 22, 2013.
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WHEN SHOULD A DECISION FROM THE UNITED STATES SUPREME COURT BE APPLIED RETROACTIVELY? BY TIMOTHY K. McMORROW • KENT COUNTY PROSECUTORS OFFICE
wo decisions in 2012 from the Michigan Court of Appeals addressed whether decisions of the United States Supreme Court should be applied to cases where defendants’ convictions were final and avenues for direct appeal were no longer available. The first, People v Gomez, 295 Mich App 411 (2012), held that the United States Supreme Court opinion of Padilla v Kentucky, ___ US ___; 130 S Ct 1473; 176 L Ed 2d 284 (2010), finding ineffective assistance of counsel in failing to advise a defendant of the adverse immigration consequences of a guilty plea, would not apply retroactively. The second, People v Carp, Docket No. 307758, decided November 15, 2012, held that Miller v Alabama, 132 S Ct 2455; 183 L Ed 2d 407(2012), invalidating sentences of life without parole for those convicted of first degree murder committed before their 18th birthday, would similarly not have retroactive effect.
14 The Grand Rapids Lawyer
The issue of the retroactive effect of Miller is pending before the United States Supreme Court. It is in any event not my intent to address whether Gomez and Carp were correctly decided. I instead want to address the general issue of Michigan’s muddled law on retroactivity of criminal law decisions. In People v Hampton, 384 Mich 669 (1971), the Court applied a three-part test for determining if a decision should be given retroactive effect. This test assesses (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect of retroactive application of the new rule on the administration of justice. In People v Sexton, 458 Mich 43 (1998), the Court applied the Hampton factors and held that People v Bender, 452 Mich 594 (1996), requiring the police to inform a suspect when retained counsel is available for consultation, and decided while the defendant’s direct appeal was pending, would not apply retroactively at all. The United States Supreme Court has adopted an entirely different test for retroactivity as applied to collateral attacks on criminal convictions. In Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed 2d 334 (1989), the issue was whether the rule against using peremptory challenges in a racially discriminatory manner, announced in Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986), would have retroactive effect. The Court held that a decision announcing a “new rule” would be retroactive for any cases still pending on direct appeal where the issue had been properly preserved. But where a conviction was final – that is, where the defendant l
had sought relief and had been denied by the highest court of a state, and the time for filing a petition for a writ of certiorari had elapsed – the Court said the decision would not be retroactive. The Court adopted the test first proposed by former Justice Harlan in Mackey v United States, 401 US 667, 682; 91 S Ct 1160, 1175; 28 L Ed 2d 404 (1971). Justice Harlan felt that a new constitutional rule should not be applied retroactively to cases on collateral review. Justice Harlan recognized two limited exceptions to this rule, where full retroactive effect would be given. One is where a new rule placed “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” id., 401 US at 692, 91 S Ct at 1180. The second was where the new rule requires observance of “those procedures that . . . are ‘implicit in the concept of ordered liberty,’” id., 401 US at 693, 91 S Ct at 1180. The Hampton rule continues to be the law in Michigan. But it forces reviewing courts to make an ad hoc decision on whether to apply a particular rule of law to a case on collateral attack, or indeed, even to allow the rule of law to apply on direct review of a conviction. Rather than a consistent application of law, the decision on retroactivity may depend on a court’s view whether the issue was correctly decided in the first place. The United States Supreme Court’s rule seems to me a more consistent and fairer rule. It would benefit criminal defendants in some cases, and the prosecution in others. But the point is not to adopt a rule that favors one side or the other. It is instead to have a rule that can be consistently and fairly applied across a broad range of cases.
Mortgage Foreclosure = Debt Collection under FDCPA BY MELISSA B. PAPKE · VARNUM
y firm’s General Counsel, indefatigable in her mission, opens my eyes on a weekly basis to new and creative ways in which lawyers can be sued, lately in situations where the mistake is not an obvious one that allows you to think, “Sure, but that could never happen to me!” In that regard, heed the latest warning that hails from the Sixth Circuit and rings loudest in the ears of the real estate practitioners among us. The 6th Circuit’s January 2013 decision in Glazer v. Chase Home Finance LLC (Case No. 10-3416) represents a significant expansion – or confirmation - of the reach of the application of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692 et seq. The FDCPA was enacted some 35 years ago with the objective of protecting consumers by eliminating abusive, deceptive and unfair debt collection practices by debt collectors. It generally applies to third party debt collectors, but has the potential to affect a much broader universe. Attorneys, originally exempt from the purview of the Act, became subject to the Act in 1986 if they otherwise satisfied the definition of a debt collector (15 U.S.C. §1692a(6)) and did not qualify for one of the 6 statutory exemptions: any person who uses any instrumentality of interstate commerce or the mails in any business
the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. As a result, there are certain instances in which attorneys will be considered debt collectors and subject to compliance with the Act (which, among other things, may require lawyers to include in their correspondence with debtors specific language and recitations of debtor’s rights to obtain further information and/or copies of the underlying documentation of the debt). Glazer v. Chase brings the application of the Act against attorneys into stark relief. It involved a claim under the FDCPA against a mortgage servicing company and the law firm it hired to foreclose on property Glazer inherited. While the 6th Circuit upheld the district court’s dismissal of the FDCPA claims against the servicer – because the proof showed the servicer entered on the scene when the debt was still current, which qualified for one of the FDCPA exceptions to the “debt collector” definition – it reversed the dismissal against the lawyers. The claim against the lawyers was that they violated the Act by falsely stating that Chase owned the note and mortgage in the foreclosure complaint (apparently, FNMA owned the debt pursuant to
an unrecorded assignment, and Chase was solely the servicer), improperly scheduling a foreclosure sale (which was ultimately canceled) and refusing to verify the debt upon the debtor’s request. In upholding the claims against the lawyers, the 6th Circuit cited that the Act was unclear because it failed to define “debt collection” and did not exclude foreclosure or the general enforcement of security interests from its scope. And, the Court rejected what it characterized as the majority view adopted in many district courts that mortgage foreclosure, without a claim for a money judgment in the foreclosure complaint, is not debt collection but simply enforcement of a security interest. Despite the absence of a definition of “debt collection” in the Act, the panel examined the Act’s definition of “debt” which is defined as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 U.S.C. §1692a(5). Further, the Court focused upon the Act’s substantive provisions that debt collection is performed through either “communication” or “conduct” (§ 1692c, d), which it found to be an Continued on page 19
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(616) 451-6226 officestaffing.com 801 Broadway NW • Suite 200 • Grand Rapids, MI 49504 A Division of Axios Incorporated K A L A M A ZO O • L A K E S H O R E • GR A ND R A PIDS 16 The Grand Rapids Lawyer
OFFICE SPACE William Azkoul PC of Suite 205-C Waters Building is entertaining a six month sublease for its suite from April 1, 2013 through October 31, 2013. The potential for a long term lease exists. The suite consists of 1,039 usable square feet. This flagship office space is one of the best in town. Monthly rent is negotiable. Some office furnishings, equipment and inventory may additionally be available. All inquiries should be directed to email@example.com.
Martin Axelrod has joined Dykema’s Grand Rapids office. Axelrod is a transactional attorney whose practice focuses on real estate and business transactions, with emphasis on real estate and corporate finance matters and business succession planning. Axelrod comes to Dykema and the legal profession after amassing more than 25 years of broad and varied business experience. Scott R. Carvo and Gaëtan GervilleRéache have been named partners at Warner Norcross & Judd. Mr. Carvo’s practice focuses on general litigation matters and includes restrictive covenant, employment and tax litigation along with a focus on e-discovery. Mr. Gerville-Réache is an appellate attorney and litigator who represents individuals, corporations, banks and domestic and foreign governments in high-stakes appeals and critical motions in both state and federal courts. Jacob S. Dunlop, Stephanie D. Myott and Kevan W. Ventura have joined Rhoades McKee PC as associates. Mr. Dunlop joins the firm’s Corporate and Business Practice Group. He completed his law degree from Indiana University Maurer School of Law. Ms. Myott will practice in the firm’s Family Law, Estate Planning and Probate Litigation as well as Business and Corporate Groups. She is a recent law graduate from University of Illinois College of Law. Mr. Ventura joins the firm’s Real Estate and Business and Corporate Practice Groups. He completed his law degree from University of Michigan Law School. Stephen J. Hulst and James R. Poll have been elected Shareholders at Rhoades McKee. Mr. Hulst concentrates his practice in the area of litigation, specializing in business and corporate as well as labor and
employment law. Mr. Poll concentrates his practice in the area of Insurance Defense with an emphasis on medical malpractice defense. Both have been with the firm since 2006. John Inhulsen was elected Shareholder with Foster Swift Collins & Smith, PC. John practices in the firm’s Grand Rapids office. He is a member of the Commercial Litigation practice group and his practice includes representing clients in business, real estate, construction, noncompete and insurance litigation and criminal defense matters. Christian E. Meyer of Warner Norcross & Judd was recently reappointed to the Electronic Recording Commission. Meyer was reappointed to a three-year term on the commission by Michigan Governor Rick Synder to represent attorneys whose practices emphasize real estate issues. The commission is working on drafting standards for the electronic recording of documents with county registers of deeds in Michigan. Michael B. Quinn has been appointed Chair of Miller Johnson’s Family Law practice group and Catherine A. Tracey will chair the firm’s Education practice group. The appointments are effective immediately. Mr. Quinn has been practicing law since 1977. A member of Miller Johnson’s litigation group, his practice focuses exclusively on family law and related matters. Ms. Tracey, admitted to the bar in 2001, is part of the firm’s employment and labor group and regularly works with school districts. April Sawhill was recently elected to the partnership at Varnum. Sawhill focuses her practice primarily on commercial litigation and personal injury cases, with an emphasis on catastrophic injuries and wrongful death. She regularly handles commercial and tort cases including insurance coverage disputes, securities litigation, products liability defense, personal injury claims, commercial contract disputes, breach of warranty claims, debtor/creditor claims and real property disputes. Jonathan J. Siebers has been named a new equity shareholder of Smith Haughey Rice & Roegge. Mr. Siebers is an experienced mergers and acquisitions and commercial real estate attorney in Grand Rapids. Donald H. Smith has joined Willis Law. He will be working out of the firm’s Kalamazoo and Grand Rapids offices. Don earned his bachelor’s degree in Psychology/Sociology from Hope College. grbar.org
In 2002, Don graduated magna cum laude and earned his Juris Doctorate degree from Michigan State University - Detroit College of Law in East Lansing, Michigan. Matthew J. Stark and Xiaolei B. Zhang have joined Price Heneveld as associates. Mr. Stark received his Juris Doctor from Thomas M. Cooley Law School in 2006 with high honors. Prior to his legal education, Mr. Stark earned a Master of Science in Architecture in 2003 and a Bachelor of Science in Architecture in 1997 from the University of Michigan. Mr. Zhang received his Juris Doctor from Ave Maria School of Law in 2009. Mr. Zhang earned a Bachelor of Science in Electrical Engineering from Michigan Technological University in 2012 with high honors. His practice focuses on helping clients with the procurement, licensing, and enforcement of intellectual property rights. Adam C. Sturdivant has recently been made a Partner at Grand Rapids law firm Drew, Cooper & Anding. Mr. Sturdivant joined Drew, Cooper & Anding as an associate in 2008, after practicing for three years in Columbus, Ohio. Sturdivant represents clients in real estate and business contract matters, as well as litigating civil rights and personal injury matters. Sturdivant practices in both Michigan state and federal courts. Kenneth P. Tableman has relocated his practice to the Waters Building in Grand Rapids. He has more than 30 years of experience in civil and criminal matters with specialized training and experience in defending federal crimes. The 62-B District Court in Kentwood has upgraded its website at www.ci.kentwood. mi.us/court. The site is designed to be user friendly with convenient tools for: online payments, record searches, the court calendar, court forms and online traffic hearing requests. The site also includes many helpful slideshows in English, Spanish, Vietnamese and Bosnian. The Court extends special thanks to Mr. Eric Wiscovitch, a 2012 graduate of Cooley Law School for his efforts as web project manager. Eric authored all of the court’s online policies and content. He coordinated, negotiated, and worked with various companies, city offices, and court staff to develop this interactive, informative and user-friendly website.
Visit our website for more news from your fellow Bar members. Mar/Apr 2013
The Grand Rapids Lawyer
Where the Lawyers Were BY FRANK S. SPIES
ust fifty years ago the largest number of Grand Rapids law firms were located in what was then the seventy-year-old, eleven-story Michigan Trust Building at the southeast corner of Pearl Street and Ottawa Avenue in downtown Grand Rapids. What are today the three largest area firms: Warner Norcross & Judd, Varnum and Miller Johnson were all located on single floors of that building. On the ground floor was an office supply store and a necessary travel agency (remember, there was no internet and no airline toll free numbers). The top floor held the Grand Rapids Bar Association library, where the firm’s associates hid out, and the University Club, where the firm’s partners had long, lubricated, lunches. Across Ottawa Avenue in the Ledyard building, was the Ottawa Grill where everyone who was not in the University Club had lunch. The second floor of the Trust Building held Old Kent Bank’s trust department (with its four lawyers) and a branch bank with a few tellers across from the elevators. Warner Norcross & Judd was on the third floor. Varnum Riddering Wierengo and Christenson shared the tenth floor. Miller Johnson Snell and Cummiskey shared the ninth floor. They were joined by Law, Fallon, Weathers and Richardson on the fifth floor and Uhl, Bryant, Wheeler and Upham on the seventh floor. McCobb & Heaney was on the ninth floor and Schmidt, Smith, Howlett and Halliday was on the fourth. Those two firms later merged, and then merged into Varnum Riddering Schmidt and Howlett. 18 The Grand Rapids Lawyer
Smaller firms found spots in the Trust Building including: Kingston, Porter and Day; McShane Bowie and Anderson; Deeb, Elferdink and Deeb; Strawhecker and McCarger; White, Smitter and Zimmerman; Wiarda and Starr; Williams and Damon; Hayes and Davis, Bahna and Bahna; along with County Prosecutor James Miller and his chief deputy Joseph White. The other larger firms in the early 1960’s were spread out around downtown: The People’s Builidng at Monroe Mall & Ionia housed Cholette, Perkins & Buchanan; the McKay Tower was home to Mitts, Smith and Haughey; the Waters Building held Rhoades, Garlington, McKee and Boer and Dutchess, Mika Miles Meyers and Snow. The Federal Square Building at Pearl and Ionia held Luyendyk, Hanier, Hillman, Karr and Dutcher. The big firms began to migrate out of the Trust Building when they started to outgrow their quarters and succumbed to the appeal of new “modern” buildings. Schmidt, Smith, Howlett and Halliday had to plan a move when a second lawyer in their firm was shuffled to an office in the library. The firms began moving to the new Old Kent Bank Building in the urban renewal area and more moved when the Union Bank Building across Ottawa Ave was completed. Today, it is hard to imagine the 220 lawyer Warner firm on one floor of the Trust Building, the 150 lawyer Varnum firm sharing a floor, and the 90 attorneys of Miller Johnson sharing space on another floor of just one building. All this in less than fifty years – a single lawyer’s career.
COUNSEL BEWARE… continued from page 15 indication of a very broad view of what could be considered “collection” under the statute. As to the argument that enforcement of a security interest should be distinguished, the panel stated, “The focus on the underlying transaction indicates that whether an obligation is a ‘debt’ depends not on whether the obligation is secured, but rather on the purpose for which it was incurred,” concluding that a home loan was a “debt” whether or not secured.
or compulsion (a foreclosure judgment and application of the sale proceeds against the debt), and thus a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly attempts to collect those debts per the Act. Stated otherwise, if the purpose of an activity taken in relation to a debt is to obtain payment of the debt, then the activity is properly considered debt collection under the FDCPA.
So, ultimately, the 6th Circuit’s holding was that the very purpose of any mortgage foreclosure is to obtain payment on the underlying debt, either by persuasion (a settlement payment)
This holding, which is echoed in several recent opinions from the 3rd and 4th Circuits, places real estate attorneys squarely in the path of the FDCPA. And, while there could
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still be arguments for exemption – if, for instance, an attorney does not “regularly” seek to collect such debts – it strikes this lawyer that a conservative approach is a sounder one - for those of us engaged in any foreclosure activities on behalf of our clients. Ensuring compliance with the Act will require examination of the form and substance of all oral and written correspondence with consumer debtors (including emails) to consider whether or not to append disclaimers or statutorily required language, and diligence in respect of counsel’s conduct throughout the foreclosure proceedings…and, no doubt, will generate more food for thought for my General Counsel.
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M I C H I G A N
Benefit Dinner Raises over $20,000 for Justice Foundation The 2013 Justice Foundation Beneﬁt Dinner was a huge success. This year’s event took place on February 14, 2013 at Frederik Meijer Gardens. The evening featured a performance by The Second City, whose satire, comedy and improvisation entertained a crowd of more than 400. The event raised more than $20,000. The Justice Foundation and the people it serves extend heartfelt thanks to this year’s generous sponsors:
Bronze Sponsors: Clark Hill PLC Foster Swift Collins & Smith PC Mika Meyers Beckett & Jones PLC
ATTORNEYS AND COUNSELORS
Rhoades McKee PC Smith Haughey Rice & Roegge Varnum LLP
Warner Norcross & Judd LLP
The Justice Foundation of West Michigan supports organizations that provide legal assistance to the disadvantaged, work to improve the administration of justice, and educate the public about core democratic values. The Foundation is supported through events like the Beneﬁt Dinner, the “Just Lips” Celebrity Lip Sync, and our Fellows and Sustaining Member giving programs. To learn more about becoming a ﬁnancial supporter of the Justice Foundation, please contact us at 454.5550 grbar.org
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