In Beem v. Ferguson, No. 16-11842, 2018 WL 718609  (11th Cir. Feb. 6, 2018) the 11th Circuit found that a late-filed adversary to deem a debt non-dischargeable could survive a dismissal request as it related back to an improperly, but timely filed motion to determine dischargeability.  The facts related to a dispute between business partners and after one partner had obtained summary judgment against the other.  After bankruptcy was filed by the loser in the state court defamation and abuse of process action, the attorney for the creditor filed an original and amended  'Motion to Dismiss or for Determination of Non-Dischargeability of His Debt' 7 days and 3 days prior to the extended deadline to file a complaint for dischargeability of debt.  After becoming aware of the error, counsel filed an adversary complaint five days after the deadline.  The bankruptcy court denied the debtor's motion to dismiss, finding both that it could extend the deadline for excusable neglect, and that the complaint related back to the timely filed motion.   The district court affirmed on the relation back ground.    Bankruptcy Rule 7015 incorporates Federal Rule of Civil Procedure 15. Rule 15(c) provides, in relevant part:(c) Relation Back of Amendments(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: ...(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original pleading.   The circuit court set for a two part test for determining whether a complaint can relate back to a prior pleading.  The first issue is whether the motion functioned as an 'original pleading' to which the untimely complaint related back.  If so, the court must determine whether the complaint's non-dischargeability allegations 'arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading.    The debtor/defendant argued that Rule 7015 only applies to pleadings, and a motion is not a pleading permitted by Rule 7007 in that Rule 7001(6) requires a nondischargeabililty claim to be pursued as an adversary proceeding, which must be commenced by a complaint per Rule 7003.  The court rejected this argument, finding that Rule 7008 setting forth 3 requirements for a complaint:  (1) “a short and plain statement of the grounds for the court's jurisdiction[;]” (2) “a short and plain statement of the claim showing the pleader is entitled to relief;” and (3) “a demand for the relief sought.” Fed. R. Civ. P. 8(a). Rule]8(e) provides that ‘pleadings must be construed so as to do justice, and should be interpreted liberally to avoid dismissal on grounds of technical error.    Further, the court has previously ruled that filings were sufficient to constitute a complaint even when not so labelled.  Robinson v. City of Fairfield, 750 F.2d 1507, 1511 (11th Cir. 1985) (a plaintiff's application for the appointment of counsel which stated “legal nature and factual basis of his claim”); Judkins v. Beech Aircraft Corp., 745 F.2d 1330, 1332 (11th Cir. 1984) (a plaintiff's right-to-sue letter and “charge of discrimination”); Commodity Futures Trading Comm'n v. Am. Commodity Grp. Corp., 753 F.2d 862, 865 (11th Cir. 1984) (an application for an order to show cause was “the functional equivalent of a complaint”).  As the motions in this case satisfy the requirements for Rule 8, the court deemed it to satisfy the first test to allow relation back, by specifically requesting that the debt be held nondischargeable and seven pages of factual details supporting the allegations, which gave fair notice to the debtor of the claim and the grounds on which it rested.  On the same grounds the court rejected the debtor's argument that the complaint should be dismissed as the creditor filed a motion in the main case rather than an adversary complaint in a separate proceedings.  As the motion was the functional equivalent of a complaint under Rule 8A, the later filed complaint should be deemed filed when the motion was filed.   Likewise it rejected the argument that since the adversary was a different proceeding, it could not relate back to a document filed in the main case.  However, for purposes of Rule 15 all matters filed are within the same bankruptcy case even if in different proceedings.  The court also found the second test to be satisfied.  “The critical issue in Rule 15(c) determinations is whether the original complaint gave notice to the defendant of the claim now being asserted.” Makro Cap. of Am., Inc. v. UBS AG, 543 F.3d 1254, 1260 (11th Cir. 2008) (alteration and quotation omitted). Mr. Beem's later-filed complaint contains nearly-identical factual allegations regarding non-dischargeability as those in his timely motion.  As these gave adequate notice to the debtor that the creditor objected to the dischargeability of the debt.   Finally, the court determined that the granting of summary judgment was proper, finding that collateral estoppel applied from the state court judgment.   Collateral estoppel bars the relitigation of issues that have been adjudicated in a prior action, and applies to an adversary proceeding challenging the dischargeability of a debt.   Under Florida law, for collateral estoppel to apply, among other things, the issue at stake in this litigation must be identical to the one involved in the prior litigation. See Aronowitz v. Home Diagnostics, Inc., 174 So.3d 1062, 1066 (Fla. 4th DCA 2015). Issues are “sufficiently identical” when their elements and requirements “closely mirror” each other. See In re St. Laurent, 991 F.2d at 676.  The debtor argued that there was inadequate finding in the state court to support a willful and malicious count under 11 U.S.C. 523(a)(6). However under Florida law, a claim for abuse of process has three elements: “(1) the defendant made an illegal, improper, or perverted use of process; (2) the defendant had an ulterior motive or purpose in exercising the illegal, improper, or perverted process; and (3) the plaintiff was injured as a result of defendant's action.” Hardick v. Homol, 795 So.2d 1107, 1111 n.2 (Fla. 5th DCA 2001). Florida courts have further explained that an action for abuse of process consists of a “willful and intentional misuse of process for some wrongful and unlawful object or collateral purpose.” Gause v. First Bank of Marianna, 457 So.2d 582, 584 (Fla. 1st DCA 1984)   “Willful” in §523(a)(6) means “a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (emphasis in original). “Malicious” means “wrongful and without just cause or excessive even in the absence of personal hatred, spite or ill will.” In re Jennings, 670 F.3d 1329, 1334 (11th Cir. 2012) (quotation omitted). To establish malice “a showing of specific intent to harm another is not necessary. Since the abuse of process count requires the same requirement of willfulness or intent as §523(a)(6), as well as a requirement for an ulterior motive or purpose.  The debtor had a full opportunity to litigate these issues in state court, and cannot relitigate them in bankruptcy.  Michael Barnett www.hillsboroughbankruptcy.com

By GINIA BELLAFANTE  Last spring, Bhairavi Desai, a middle-aged woman without a driver’s license and thus an unlikely leader for thousands of mostly male drivers in the world’s largest market for hired vehicles, delivered emotional testimony in front of New York City’s Taxi & Limousine Commission about the mounting existential difficulties in her field.The executive director of the New York Taxi Workers Alliance, Ms. Desai had been a labor activist for 21 years but she had never seen anything like the despair she was witnessing now — the bankruptcies, foreclosures and eviction notices plaguing drivers who were calling her with questions about how to navigate homelessness and paralyzing depression.“Half my heart is just crushed,’’ she said, “and the other half is on fire.”The economic hardship that Uber and its competitors had inflicted on conventional drivers in New York and London and other cities had become overwhelming. For decades there had been no more than approximately 12,000 to 13,000 taxis in New York but now there were myriad new ways to avoid public transportation, in some cases with ride-hailing services like Via that charged little more than $5 to travel in Manhattan. In 2013, there were 47,000 for-hire vehicles in the city. Now there were more than 100,000, approximately two-thirds of them affiliated with Uber.While Uber has sold that “disruption” as positive for riders, for many taxi workers, it has been devastating. Between 2013 and 2016, the gross annual bookings of full-time yellow-taxi drivers in New York, working during the day when fares are typically highest, fell from $88,000 a year to just over $69,000. Medallions, which grant the right to operate a taxi in New York City, were now depreciating assets and drivers who had borrowed money to pay for them, once a sound investment strategy, were deeply in debt. Ms. Desai was routinely seeing grown men cry and she had become increasingly concerned about the possibility that they would begin taking their lives. On Monday morning, Doug Schifter, a livery driver in his early 60s, killed himself with a shotgun in front of City Hall in Lower Manhattan, having written a lengthy Facebook post several hours earlier laying out the structural cruelties that had left him in such dire circumstance. He was now sometimes forced to work more than 100 hours a week to survive he said; when he had started out in the 1980s a 40-hour week was fairly typical. He blamed politicians — mayors Michael R. Bloomberg and Bill de Blasio, Gov. Andrew M. Cuomo — and their acquiescence to the rich for permitting so many cars to flood the streets. He blamed the Taxi Commission for the fines and hassles it imposed.He had lost his health insurance and accrued credit card debt and he would no longer work for “chump change,’’ preferring, he said, to die in the hope that his sacrifice would draw attention to what drivers, too often unable to feed their families now, were enduring. He had forecast all of this doom in columns he had written for a trade publication called Black Car News, he wrote, but few had listened to him.Implicit in his testament was the anger he felt over the de-professionalization of his life’s work. Mr. Schifter had driven more than five million miles throughout his tenure, through five hurricanes and 50 snowstorms. He had chauffeured celebrities and worn a suit. He was not driving a car to supplement the income he was getting from his crepe business and he was not trying to make a little extra money for massage. He was not a participant in the gig economy; he was a casualty of it.For at least a century, the suicide as spectacle, prompted by a reversal of fortune, has typically been the practice of the wealthy. In the months after Wall Street’s crash in 1929, four people threw themselves out windows in New York (leading to the folklore that there had been many, many more such deaths). Decades later, Bernie Madoff’s son Mark hanged himself from a dog leash in his SoHo apartment. In 2016, Sanjay Valvani, a hedge fund manager accused of insider trading, slashed his throat in the bedroom of his Brooklyn townhouse, to much sensation in the tabloid and financial press. Poverty too often kills you without making you try.For taxi drivers staring down an even bleaker future of driverless cars at a moment when Washington considers a weekly paycheck bump of $1.50 an occasion to break out the layer cake, it is hard to see where the metaphoric Prozac will come from.The problems facing the city’s taxi drivers have become so bad, Ms. Desai said, that even on New Year’s Eve many complained that they roamed around unable to pick up fares. At about that time she had received a call from a woman who runs a community radio station in the Bronx, with an audience made up mostly of Dominican livery drivers. Two drivers that the host knew of had killed themselves and other drivers were on the show talking about the isolation and fear they saw all around them.In the days preceding his death, Mr. Schifter wrote about his decreasing faith in our politics and about his commitments to his spiritual life. “Forget the cliché you only live once it is not true,” he said in a Facebook post. “The clues are all about you if you take the time to seek them.”Copyright 2018 The New York Times Company.  All rights reserved.

Provided below is sales data from the sale of 46 unrestricted taxi medallions as reported by the TLC for January 2018, which includes 34 medallions sold in a bankruptcy auction. The estate sales for $245,000, $176,000 and $170,000 may be too low a value because these sales reflect a sale by the estate of a taxi medallion owner who died, and those “desperate sellers” are selling for tax purposes or to quickly dispose of a depreciating asset.  Factoring out the foreclosure and estate sales, the fair market value of a medallion based on January sales data appears to be approximately $186,000 based on the 34 medallions sold at the bankruptcy auction.  Auction sales with a bidding process often reflect fair market value.  Medallion owners with “underwater” medallions (where the loan balance exceeds the value of the medallion) should contact Jim Shenwick to discuss their options under the law. Price Type of Sale Number of Medallions $380,000 2 $380,000 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $372,000 Bankruptcy 2 $250,000 1 $250,000 1 $245,000 Estate 1 $185,000 1 $181,000 1 $176,000 Estate 1 $170,000 Foreclosure 1 $170,000 Estate 1 $170,000 1

By Tina Moore and Stephanie PagoneA 61-year-old livery driver posted on Facebook early Monday that city and state politicians were to blame for his financial ruin — then pulled up to the gates of City Hall and shot himself dead with a shotgun, authorities said. The driver, identified by sources as Douglas Schifter, blamed Mayor de Blasio and Gov. Cuomo as well as former Mayor Bloomberg for making it impossible for him to earn a living behind the wheel because of an increasing number of taxis and black cars in the city, and because of over-regulation of his industry. “Now the politicians have flooded the streets with unlimited cars and some 3,000 new ones every month still coming. There is not enough work for everybody that pays a living,” Schifter posted around 4:30 a.m. “This is SLAVERY NOW. … I don’t know how else to try to make a difference other than a public display of a most private affair.” Schifter then drove a black Nissan Altima that he rented in Pennsylvania to the front, east gate of City Hall near Spruce Street and Park Row, stopped the car and shot himself with a shotgun around 7:10 a.m., police said. He was pronounced dead at the scene, an FDNY spokesman said. Police sources said he was from Pennsylvania. “I have no more health insurance and am not enjoying good health,” Schifter wrote in his online manifesto. “No more vehicle as my GM engine failed twice this year as well as the transmission. No more income to pay bills and maxed out credit cards I cannot pay. I will lose my house and everything else. I see no point to continue trying.” Schifter – who wrote that he worked 100-120 consecutive hours almost every week for more than 14 years — said in his lengthy suicide note that de Blasio, Cuomo and Bloomberg “each had their part in destroying a once thriving industry.” “There are over 100,000 of us suffering daily now. It is the new slavery. The politicians flooded the streets with Black Cars and Taxis,” he wrote. “I warned of the impending collapse of the yellow medallions more than a year before it happened. No one stopped it. That old law was working and it was there to prevent exactly what Cuomo Allowed,” he continued. “The control of the numbers of taxi medallions was never supposed to return to the Mayor.” Schifter blamed Bloomberg for “appealing to Albany to remove the law limiting taxis in NYC.” “It was in place for over one hundred years and worked! It was there for a reason. It took away control from local politicians. It limited competition so in bad times everyone still made a good living,” he wrote. “Now there are too many feeding off the same pie and there is not enough for every one,” he said, adding that Bloomberg “added 18,000 unneeded green cabs.” “That took more business away from Black and Yellow Cabs. He mandated a freeze on processing replacement Black Cars just as I had to replace mine,” Schifter wrote, explaining that he had to buy and insure his car before he could register it. “TLC would not process my application because they wanted their $75 inspection fee for a brand new car out of the showroom in addition to the state inspection already performed,” he said. “That cost between $20,000 and $30,000 and was a serious loss,” he said. The driver also said de Blasio and Cuomo have shown a “bias” toward Uber. “De Blasio stopped a traffic study on the impact of Uber. That would have revealed the true traffic impact of so many cars and shown the need to freeze car levels,” Schifter said. “Cuomo allowed the removal of controls and allowed unlimited cars on the road. Cuomo also placed State Troopers in NYC to patrol and issue moving violations. This never happened before in my lifetime. He has turned the city into a police state.” The disconsolate driver also took aim at the “treasonous Republicans.” “I hope with the public sacrifice I make now that some attention to the plight of the drivers and the people will be done to save them and it will have not have been in vain and also that we must stop what is happening to Government while we still have one we can vote out,” Schifter said. “There is no choice. America is under attack by Russia. They do not need weapons. They bought their influence.”Copyright 2018 NYP Holdings, Inc.  All rights reserved.

On the Verge of Bankruptcy?  Here Are Your OptionsBy Bridget HillyerIn the world of multiple credit cards, payday loans and escalating education costs, debt is a problem many of us face. If your situation becomes overwhelming, it can be tempting to think of bankruptcy as your only available option. Before you make that big step, make sure you understand exactly what it will mean for you and what your other options are. What Is Bankruptcy?According to James Shenwick, an experienced personal and business bankruptcy attorney from Manhattan, bankruptcy is “when your liabilities exceed your assets or you have insufficient cash flow to service or pay your debt.” To put that more simply, it’s when you don’t have enough money to pay off your bills.Filing for bankruptcy is when an individual submits their case to the United States Bankruptcy Court in an effort to be declared insolvent. Depending on the individual’s specific situation, they’ll file under a specific chapter of the bankruptcy code, the two most common being Chapter 13 and Chapter 7. Whichever you choose, declaring bankruptcy is a serious decision that should be avoided if at all possible. How Will Declaring Bankruptcy Affect Me?Although no two situations are the same, bankruptcy comes with a number of potential consequences that anyone considering it should be aware of. The filing itself will stay on your credit report for six to seven years, impacting your ability to get credit for years to come. “Chapter 7 bankruptcy filings more negatively affect an individual’s credit report than chapter 13,” says Shenwick. You may also be required to surrender some of your personal property, depending on which bankruptcy chapter you qualify for. Co-signers for any of your debt may also be required to take sole responsibility for it, and not all debt can be wiped completely free. It will be under the discretion of the court to decide if debt like student loans will qualify. It’s also not free to file, with each chapter requiring a different fee. If you choose to seek legal help to navigate the process, that will also cost you. How Can I Avoid Bankruptcy?Considering the difficulties associated with declaring bankruptcy, it’s no wonder that people want to avoid it. If your bills have begun to pile up, here are seven steps to help you get yourself back on track and avoid bankruptcy. Cut Out Unnecessary ExpensesWith bankruptcy looming, you will need to make a number of serious life changes to get yourself out of debt. The first is to cut any expenses that aren’t absolutely necessary. Gym memberships, streaming services, extra data in your phone plan, magazine subscriptions and eating out can all go. While this may seem intense, remember that it’s only intended to be a temporary measure. Bare-bones living for a few months to a year, if it helps get you out of debt, will likely be worth it in the end. See What You Can SellThat collection of movies and books you haven’t touched in years? Throw them on eBay or have a yard sale. Extra pieces of furniture and collectibles are also great for a quick cash turnaround. Fashion items, such as purses, brand-name sneakers and sunglasses, will earn you some good money if they’re in good enough condition. The website StockX is completely devoted to helping individuals sell their luxury purses, watches and sneakers, so take a look through your own inventory to see what you have to sell. If you don’t need it and you think you could get some money for it, give it a try. Every bit helps. Get a Second JobIf your current paycheck isn’t enough to cover your bills, then you’ll need to consider taking on a second job. Even if you only have enough time for something on the weekend, like dog walking or working at a coffee shop, the added income will help you pay down that debt faster. If you have a free room in your home, you could take on a roommate, or you could use your car to make money by signing up to be driver for Lyft or Uber. You’ll be busy in the short term, but getting out of debt is worthwhile. Switch to CashBudgeting your income will be a major part of overcoming your debt, so find a method that works for you. If credit cards are part of the reason you’re now having issues, then switching to cash can be a big lifesaver. Put those cards into an envelope, seal it up and get them out of sight. Set a weekly budget for the necessities and make your everyday purchases with cash. This way, you can physically see when you are getting close to hitting that weekly number. Larger expenses, when absolutely necessary, can be made with a check. The time it takes you to fill one out will act as a reminder to spend wisely. Contact Your CreditorsCreditors may seem like the enemy at a time when you’re debating bankruptcy, but the truth is, they may be able to work with you. Many will be far more interested in finding a way to settle the situation instead of losing the money they lent you. Negotiate with them and see if they will lower your interest rate and work out a repayment plan. You won’t know until you ask. Refinance Your MortgageOne solution to high-interest credit card debt is to refinance your home and get cash out. Because your mortgage is secured debt, it has a much lower interest rate than most credit cards. By refinancing, you can use secured debt at a low interest rate to pay off high-interest unsecured debt. This will save you on having to make large interest payments in the future as you work to become solvent again. Borrow from Friends or FamilySince it can put a serious strain on any relationship, borrowing money from your friends and family should be saved as a last resort. However, if the money will help you reach your long-term solution and isn’t just a temporary fix, then you should give it serious consideration. Make certain that you plan out how you will pay the individual back, and be as clear with those terms as possible before you borrow the money. This will help you both avoid uncertainty and tension in the future. When Is Bankruptcy Your Only Option?According to Shenwick, “If living on an austerity budget will not provide sufficient cash flow to pay back your creditors in one to two years, then you may want to consider bankruptcy. An experienced bankruptcy attorney can help you make this determination in a 45 minute to one hour consultation.” Remember that declaring bankruptcy isn’t the end of the world. Yes, it’s a serious decision that you should work very hard to avoid having to make, but it can also provide much-needed relief when you’ve run out of options.© 2000 - 2018 Quicken Loans Inc., All rights reserved.

  The 2nd Circuit was presented with the question of when an action by a creditor can be considered an act to create, perfect, or enforce a lien against property of the estate.  In re Heavey, No. 16-3227, 2018 WL 546404 (2d Cir. Jan. 25, 2018).  In this chapter 7 case a creditor contacted the county clerk's office post-petition to inquire why its timely filed but inexplicably undocketed lien extension order did not appear on the clerk's docket.  This inquiry resulted in the post-petition docketing of such lien extension.  The bankruptcy court found that this conduct constituted a violation of the automatic stay under 11 U.S.C. 362(a)(4).  The district court reversed, finding that it was not reasonably foreseeable that the inquiry would result in the clerk's office docketing the extension post-petition.  The 2nd Circuit disagreed with both prior courts, finding that the 'reflexive' response to merely ask what happened to its timely filed lien extension order was not an act to create, perfect, or enforce a lien.  There was no evidence that the creditor engaged in anything more than fact finding.  The court distinguished the line of cases on tax liens that arise out of the operation of law, and are based on affirmative acts by the taxing entities.  Michael Barnett www.tampabankruptcy.com

As many of the readers of our blog are aware, we’ve developed a practice representing taxi medallion owners who own “underwater” taxi medallions. An underwater taxi medallion is a medallion valued at less than the bank loan for the medallion.  This blog post is about a successful workout which we negotiated for the owner of an underwater taxi medallion.The facts of the case are as follows: he owns a house with his wife. His other significant asset is the ownership of the medallion for the taxi that he drove each week. He was an extremely hard-working man (a new immigrant to America) and he was driving 60 to 90 hours a week. The taxi medallion loan was approximately $660,000 and we estimated the value of the taxi medallion at $175,000 to $185,000.Unfortunately, due to the competition from Uber, Via and Lyft, notwithstanding the fact that my client was working 60 to 90 hours a week, he was barely making enough money to feed his family, pay the mortgage on his house and cover his driving expenses each week. Regrettably, he stopped making payments on the taxi medallion bank loan.  The bank that held the loan commenced a foreclosure action against the medallion.Prior to retaining us to assist him with his taxi medallion issues, he retained another attorney who advised him to file a chapter 13 bankruptcy petition that listed the medallion as having no value. His case was dismissed because of the inaccurately low valuation for the medallion.The medallion owner was extremely frustrated and was referred to us. We met with him and asked for a list of property he owned (assets), who he owed money to (his liabilities), his after tax monthly budget and the taxi medallion loan documents. The client indicated that he did not want to refile for personal bankruptcy, but he was amenable to a workout with the bank.  We contacted the bank’s counsel, who agreed to stay the state court action, so we could review the file and commence negotiations. Prior to entering workout negotiation, we do “asset protection planning” for the client. As part of our due diligence, we requested that the client send us a copy of the deed for the house that he owns with his wife. Upon reviewing the deed, we discovered that his real estate attorney had improperly drafted the deed and the house was not held as “husband and wife” with tenancy by the entirety protection for house.Under New York State law, in the New York metropolitan area, each owner of a house who resides in the house has a homestead exemption of $165,500 (for a married couple $331,000). If the house is owned as tenants by the entirety and one spouse owes money to a creditor, that creditor can obtain a judgment against the taxi medallion owner (debtor) and docket the judgment against the house (which is owned as tenants by the entirety) but cannot foreclose on the house. Effectively, the judgment, which under New York State law is good for 20 years, will prevent the husband and wife from selling or refinancing the house, but the creditor can’t force a sale of the house at a foreclosure or other sale of the house if the non-debtor spouse is alive and living there. We advised the client to contact his real estate attorney immediately and correct the deed by filing a warranty deed – which they did. Because of the corrective deed being filed with the county clerk, the client’s house was now protected from the reach of the medallion lender bank due to the NYS homestead exemption and tenancy by the entirety protection!Negotiations commenced, but unfortunately the medallion bank was unreasonable in their demand with respect to a settlement and the taxi needed to be repaired or replaced.  So, the strategy that we agreed upon was to voluntary surrender the medallion to the Taxi and Limousine Commission (TLC) and the meter and the taxi radio and other equipment were returned to their vendor.The bank was then able to obtain the medallion from the TLC. The voluntary return of the taxi medallion to the TLC and the client’s asset protection planning were key to settling the action. Ultimately, when the “dust settled”, the bank obtained possession of the medallion (its collateral for the loan), the client kept his house, the State court litigation was discontinued and the client no longer had to worry or maintain an asset (the medallion) that had little value. Jim Shenwick

If you have been arrested for an OVI (operating a vehicle while intoxicated), you might not feel like you need a lawyer. After all, many people drink and drive and get away with it. However, you really need to consult a lawyer to help you win your case so that you can have the best possible life after your arrest. Your lawyer will meet with you to discuss possible defenses that might work for your case. Here are some common ones that you may want to consider. Illegal stop by police With your Fourth Amendment right, a police officer must have a reasonable suspicion to pull you over. These include speeding, plates that are expired, trouble staying in your lane, and other similar things. Standardized Field Sobriety Tests (SFST) were administered incorrectly. This defense is common because not every police officer understands how these tests work. Some officers are looking for a reason for you to mess up because they hold you up to impossible standards (things a sober person might struggle with). Police officers can also give the instructions (and even the test) incorrectly, which botches the results. Some officers don’t understand the correct way to read the results, leading to inconclusive results. Chemical tests can also be wrong. It is important that an officer waits for twenty minutes before they give you a breath test. However, they have a window of three hours before the results will be inconclusive. Certain things may interfere with a chemical test, including radio frequency. The location is also important to make sure that the results are going to stand up in court. Too many police officers rush through the process once they pull you over. However, if they don’t follow protocol and administer the tests properly, you have a good defense in your case. Because of this, make sure that you hire the best lawyer that you can to ensure that you win your case. If you are arrested for an OVI, don’t hesitate to contact us for all of your legal needs. We would be happy to talk to you about your case to see how we can help you. We will do everything that we can so that one mistake won’t change the rest of your life. The post Common Defenses for an OVI in Ohio appeared first on Chris Wesner Law Office.

As many of our readers know, Shenwick & Associates has developed a specialty representing taxi medallion owners with "underwater " medallions (underwater medallions are medallions valued at less than the bank loan). We were recently retained by a client who was at her wits’ end.  She co-owned a medallion; the medallion loan had matured, and her partner refused to sign a loan extension. If the medallion loan wasn’t extended, the bank indicated that they would foreclose on the medallion and sell it to repay the loan. Due to the depressed market value of medallions, now would not be the optimal time for a foreclosure sale!The medallion owner was extremely stressed, so she went online and searched for attorneys with taxi medallion experience. She saw our blog, read a few the posts and called to set up an interview with Jim Shenwick. We asked her to bring in a list of property that she owned (assets), creditors she owed money to (liabilities), an after tax monthly budget for herself and the taxi medallion loan documents that she executed with the bank.The client indicated that she did not want to file for bankruptcy, she wanted to keep the medallion and she wanted to extend the loan, if possible. She then retained us to handle the matter. Jim Shenwick called the attorney representing the co-owner. Fortunately, the co-owner’s attorney was reasonable and knowledgeable, agreed with our analysis of the situation, and counseled his client that a sale of the medallion or a foreclosure (which could result in relief of indebtedness income being reported to the Internal Revenue Service pursuant to § 108 of the Internal Revenue Code) was not in either party’s best interest.We then discussed why his client did not want to extend the bank loan for the medallion, and he indicated that his client was aging and that notwithstanding the fact that his client was legally liable to repay the bank loan, the economic benefit of the prior loan accrued to our client (which we confirmed with her).  He suggested that the owner’s enter into an indemnification and hold harmless agreement, which provided that the lease payments from the medallion would go to service the loan, and if there was a default on the loan, that would be the responsibility of our client and not the co-owner. Both parties agreed to these terms and the agreement was drafted and executed.  The co-owner then executed the loan extension agreements with the bank and the loan was extended at a low interest rate for three years. The settlement between the two medallion owners and the medallion owners and the bank was advantageous for all parties. Jim Shenwick

Last month, New York State Comptroller Thomas P. DiNapoli issued a report on New York City’s financial plan for FY 2018 through FY 2021.  In the report, DiNapoli discusses NYC’s repeated postponement of the sale of 1,650 medallions because of the weakening market due to ride-hailing apps like Uber and Lyft, and NYC’s dubious assumption that these medallions will sell for $728,000 apiece (while an auction held on January 16th averaged about $175,000 per medallion).A couple of observations about NYC’s financial plans with respect to medallion sales:1. No person or entity will pay $728.000 for a NYC medallion! 2. Currently medallions are selling for approximately $185,000 per medallion and a $728,000 selling price is unobtainable.3. With the number of Uber, Via, and Lyft cars on the road, there is no need for NYC to sell additional medallions!4. In fact, maybe NYC should consider buying back existing “under water” medallions from owners whose medallions are “under water” due to Uber, Via, Lyft and NYC’s actions and inaction.5. If NYC were to sell an additional 1,650 medallions, the price of existing medallions will drop precipitously in value and will result in a further decrease of existing medallion owners’ earnings.