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Attorneys who represent landlords and eviction hearings in Minnesota are being sued under the fair debt collection practices act, or FDCPA for short. However, there are several steps that attorneys can take to protect themselves from an FDCPA lawsuit.

A complete discussion of the requirements of the FDCPA is beyond the scope of this article. However, the FDCPA requires that a third-party attempting to collect a debt provide a "mini-Miranda" warning at an initial meeting with the debtor and follow-up with a 30-day validation letter within five days.

The "mini-Miranda" should say something to the effect that the debtor is having a communication with a debt collector and that any information obtained can and will be used to collect the debt owed. Within five days of the date of the initial communication, you should follow up with a 30-day validation letter, giving the debtor 30 days to dispute the validity of the debt, or to request confirmation of the identity of the original creditor, if it is not already been provided.

The FDCPA does not apply to landlords attempting to collect their own debt. In other words, the landlord does not have to comply with the FDCPA is the landlord issues its own notices, demands, etc. However, if the landlord has hired a collection agency to collect unpaid rent or a property management company to manage the properties, collect rent, etc., then that collection agency or property management company is a third-party and must comply with the FDCPA.

Based on the research I have done so far, this theory of liability originated in a case decided by the Federal District Court in the Southern District of New York, and subsequently affirmed by the Second Circuit Appeals Court in 
Romea v. Heiberger & Associates, 163 F.3d 111 (2d Cir. 1998)

For attorneys who represent landlords in eviction hearings, the theory is that the preliminary court hearing in the eviction is a "communication" with the debtor. Attorneys who represent landlords potentially violate the FDCPA, the theory goes, by not providing the "mini-Miranda" warning or by following up within five days with a 30-day validation letter.

I think there is a good argument to be made that:

1. Romea only applies to evictions in the Second Circuit and does not apply to Minnesota evictions;
2. evictions are all about the right to possession, not money – and therefore the FDCPA does not apply; and
3. the payment or nonpayment of rent in Minnesota and the Minnesota eviction action does not affect interstate commerce in the least, and that therefore Congress – and the Minnesota federal courts – are without jurisdiction.

Brighter minds than mine will figure this out, but in the meantime, I am – out of an abundance of caution – going to comply with the FDCPA by providing a "mini-Miranda" warning at the court hearing and by following up within five days with a 30-day validation letter.. I do not want to risk an FDCPA lawsuit.

 Remember – the FDCPA does not apply to a landlord attempting to collect its own debt. As such, assuming that the landlord is the owner of the property, the landlord can continue to send notices and demands as always. The FDCPA comes into play only if the landlord hires a third-party, such as a property management company or debt collection agency.  Landlord attorneys who are served with an FDCPA lawsuit should immediately notify their malpractice carrier, and not attempt to defend the lawsuit on their own.

For more information about evictions and the FDCPA, I recommend that you visit:

https://sites.google.com/site/mnhousinglaw/ud-defense-manual/chapter-vi-defenses/e-nonpayment-of-rent/34-fair-debt-collection-practices-act-defenses

Thanks!

Every landlord – tenant situation is unique, and I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post.  To that end, I invite landlords to give me a call at 763-450-9494 to discuss their unique situation. The first thing I will ask you is what you want to have happen because, ultimately, the landlord is in control. I have represented many landlords, but typically do not represent tenants.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.




 
 
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I am often asked what a landlord should do is a tenant dies.  If a tenant dies and was not married, I generally recommend that a landlord bring an eviction action against that tenant by name, and against the estate of that tenant, if only to get the rental unit back. That way, the landlord will have the legal right to rent the unit again and dispose of any personal property remaining there.

In the event of the death of a tenant, the landlord has three primary concerns: what happens to the lease, dealing with the tenant's personal property, and dealing with the security deposit. I will now address each of these concerns in turn.

Lease

What happens to the lease upon the death of a tenant is governed by Minn. Stat. 504B .265. Basically, the lease continues in force, until the landlord or the tenant (or the tenant's estate) provide notice that the lease has terminated.

The statute provides that either the landlord or the tenant can terminate the lease by providing written notice at least 60 days in advance. In other words, the notice must be given at least two full rental periods in advance. For example, notice given sometime in the month of September actually terminates the lease as of the end of November, and the tenant's estate is on the hook for rent from the date of the notice through the end of the lease.

However, the tenant's estate remains liable for unpaid rent and other amounts due and owing under the lease through the date of the lease termination. The landlord still has to deal with the deceased tenant's personal property as well as the security deposit, but can sue the tenant's estate in conciliation court for the amounts due and owing under the lease, including unpaid rent, unpaid utilities, and damages to the rental unit beyond ordinary wear and tear.

Personal Property Belonging to the Deceased Tenant

The landlord has the duty under Minn. Stat. 504B.271 to secure the tenant's property. This can be most easily accomplished by either changing the locks, if the property is going to be stored in the unit, or moving the property to a no other secured location on site, such as a lockable garage.  Once it becomes apparent to the landlord that the tenant has abandoned the property, the landlord has to secure it, as described above. The landlord has to store the property for 28 days if the property is to be stored on site.

After the property is secured, the landlord has to conduct an inventory of the property. The easiest way to do the inventory is to take digital photographs or a video of the property, accompanied by a list describing the specific items. Big-ticket items, such as a television, should be listed separately, but general categories are okay for other items, such as furniture, electronics, clothing, etc.

The landlord has to mail a copy of the inventory to the tenant (or the estate of the tenant at the tenant's last known address), which is probably the apartment. I recommend posting a sign on the door indicating that property appears to be abandoned to the landlord, the landlord has secured the tenant's personal property and that the landlord may be contacted to set up an appointment to provide access.

The landlord should only provide access to the personal property of a deceased tenant to someone who is named as a personal representative in the tenant's will.   If the tenant died intestate – that is, without a will – I would be very cautious about providing access to the property to a person who is not named or has been appointed as a personal representative. After all – the landlord does not want to be liable to the tenant's estate for improperly disposing of the tenant's personal property.

For more information on dealing with a tenant's personal property, please see my previous blog post on the subject:

http://www.balandlaw.com/3/post/2016/02/what-should-a-landlord-do-with-personal-property-that-a-tenant-leaves-behind-when-the-tenant-moves-out.html

Security Deposit

Security deposits in Minnesota are governed by Minn. Stat. 504B .178. The landlord has to return the security deposit to the tenant within 21 days after termination of the tenancy, with interest, less the amount of damages to the landlord beyond ordinary wear and tear.  When a tenant dies, the security deposit becomes the property of the tenant's estate. The landlord should return any deposit remaining, with appropriate interest, to either the named or appointed personal representative or to the estate of the tenant at the tenant's last-known address, which is probably the rental unit.

For more information on dealing with the security deposit, please see my previous blog post on the subject:

http://www.balandlaw.com/3/post/2016/02/how-should-a-landlord-handle-a-tenants-security-deposit-after-the-tenant-moves-out.html

The death of a tenant presents a complicated situation to the landlord, and every landlord-tenant situation is unique. For that reason, I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post.  To that end, I invite landlords to give me a call at 763-450-9494 to discuss their unique situation. I typically do not represent tenants.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.

 
 
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I am often asked whether a person needs to have a Will or estate plan. The answer is yes, probably. If you are single, have never been married, are not in a relationship, do not have children (either biological or adopted), do not have life insurance or another form of insurance that pays a cash benefit upon your death, rent as opposed to own your home, do not own any significant personal property (such as a motor vehicle), and are okay with the state determining what happens to your property after you die, then you might be okay not having an estate plan. In other words, and estate plan is right for most persons, and most people need an estate plan.

I think that everybody should have an estate plan consisting of a Will, a health care directive, and a power of attorney. The Will controls what happens to your property after your death; the health care directive appoints someone who you know and trust to be your healthcare agent in the event that you are incapacitated and unable to make decisions related to your medical care and treatment by yourself; and the power of attorney appoint someone you know and trust to make decisions and carry on your financial affairs in the event that you are unable to do so on your own.

There are two primary reasons why you should have an estate plan. First, you want the control that comes from having a written plan detailing how you want your property distributed at the time of your death. I believe that you will feel an immense feeling of satisfaction and relief once you have a written plan in place that says what you want to have happen to your personal property when you die. I also think that you will feel a profound sense of relief when you have a health care directive and power of attorney that gives somebody you trust the authority to make medical and financial decisions, respectively, on your behalf if you are unable to do so.

The purpose of having an estate plan is not necessarily to benefit you, but to make life easier for those who survive you. Instead of having your loved ones sit around the hospital or funeral home wondering how you would like this situation – probably, your last illness or death – handled, what you would have done, and what you would like to have done, you can spell out exactly what you want to have happen in your estate plan and provide guidance and instruction for your survivors. Providing that guidance and instruction to your survivors is the real purpose and value of having an estate plan.

I've written about this before, but I think that the death of the pop icon Prince illustrates why you should have an estate plan. Prince died intestate, without a Will. If Prince had had a Will, there would not now be so much legal wrangling, maneuvering, and fighting over his estate. I don't think that Prince would have wanted that, and doubt that you wanted as well. All of that trouble could have easily been avoided if Prince had had a Will. To see the prior article, please visit:

http://www.balandlaw.com/3/post/2016/06/the-probate-mess-stemming-from-princes-death-is-why-you-need-an-estate-plan.html

The best way to determine what is right for you is to meet with an estate planning attorney. To that end, I invite you to give me a call at 763-450-9494 to discuss your specific situation. Everybody who calls gets a free 5 minute mini telephone consultation. An in person meeting is $250, and that amount is credited to your account when you retained me to represent you in drafting your Will, healthcare advance directive, power of attorney, and other estate planning documents.

WARNING: The information contained in this article does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in the state and federal courts of Minnesota, and the advice that he gives is applicable to that jurisdiction only. Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.

 
 
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I am often asked what you should do if somebody owes you money. The short answer is that you should probably sue in conciliation (or "small claims") court, although the longer answer depends on what you are owed money for and how much money you are owed.

The jurisdictional limit for suing in conciliation court – or the most you can ask for – is $15,000. So, if somebody owes you $15,000 or less, I would probably recommend suing in conciliation court. However, if you have provided professional services or have done work on a titled piece of personal property (the most common is probably a motor vehicle), then you may have a lien for the amount of your services that could be enforced outside of conciliation court. Of course, if your claim is for more than $15,000, you should consider suing in District Court, where damages are not limited.

To win in conciliation court, you must prove both liability and damages. In other words, you must prove that the defendant actually owes you the money, and the amount that they owe you. If you win your conciliation court case, you will wind up with a conciliation court judgment for the amount of your claim that you were able to prove. The conciliation court judgment will be stayed for a period of time to allow the defendant to appeal, if the defendant wishes.

Once the time for appeal has passed, you should immediately docket (or transfer) the judgment from conciliation court to District Court by filing a document called an Affidavit of Identification of Judgment Debtor. A District Court judgment shows up on a person's credit report, so the defendant will be unable to obtain major financing – such as a mortgage loan – with your judgment on their record. In addition, having a judgment in District Court gives you the right to garnish wages and bank accounts to collect your judgment.

I can't really speak for other attorneys, but I know that I will collect on a judgment for a contingent fee of one third of any amounts collected, less expenses. Typically, I require an expense retainer in advance. Collecting on a judgment is hard work. Whether you are able to collect anything depends on several factors, including but not limited to if the debtor is working, receives public assistance, and has an active bank account set up at a bank or credit union.

Tim represents creditors  – both consumer and business – in collection matters. Tim also represents consumer and small business debtors in bankruptcy, and brings this perspective – the perspective of an attorney representing debtors – to collections. I somebody owes you money, or if you have a judgment that you need help collecting on, please give Tim a call at 763-450-9494 to set up a consultation. Tim charges $250 for a consultation, and will advise you about your rights under the law and options available to you.

DISCLAIMER: Baland Law Office, P.L.L.C. is a debt-relief agency, and Timothy H. Baland, Esq. is a debt-relief agent.  We help people like you to obtain bankruptcy relief.

WARNING: The information contained in this article does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.



 
 
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Tim is teaching a free seminar called "What Every Landlord Needs to Know about Evictions, Security Deposits, Abandon Tenant Property, and Landlord – Tenant Law." The seminar will be held on Friday, March 11, 2016 from noon – 1 PM at Tim's office, 2140th Avenue, Anoka Minnesota 55303.

In this FREE seminar, we will cover the legal aspects of the landlord-tenant relationship, including how to handle evictions, security deposits, and tenant property remaining in the premises after the tenant moves out.  This seminar is geared for landlords, property managers, and attorneys who represent them.  Please call Tim directly at 763-450-9494 if you have any questions about this seminar.

Space is limited, so advance registration is required. To register, please visit
https://www.eventbrite.com/e/what-every-landlord-needs-to-know-about-evictions-security-deposits-abandoned-tenant-property-and-tickets-22240662420.

ATTORNEYS:One standard CLE credit has been applied for.







 
 
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I am often asked when a landlord should bring an eviction action to evict a tenant? The short answer is that it is ultimately up to the landlord, but I would recommend bringing an eviction action or sooner rather than later – probably as soon as the tenant is late with the rent. The landlord can also evict a tenant who is violating the provisions of a lease, even if the tenant is current on rent, but that is usually a more difficult eviction. This blog post will focus only on evicting a tenant for not paying rent. Watch for a different blog post on evicting a tenant for lease violations in the near future.

Most leases give the tenant a grace period – usually less than five days – to pay the rent. In other words, if rent is technically due on the first day of the month, the tenant has a grace period of a few days to actually pay the rent. However, the landlord is fully within the landlord's rights to bring an eviction action if rent has not been paid and the grace period has expired.

Mobile home parks are different under the law, because in mobile home parks, the landlord has to give a 10 day notice before bringing an eviction.  For most leases that do not involve property in a mobile home park, no notice that the landlord is going to bring a formal eviction action is required, unless that is a requirement of the lease. As a general rule, I recommend bringing an eviction as soon as possible.

In summary, a landlord should bring an eviction action as soon as the tenant is late in paying their rent, usually after the expiration of the grace period provided by the lease.  Some landlords will wait until the tenant is several months behind in paying the rent, but the danger in waiting is that the arrears will accumulate to such an extent that the tenant is unable to pay them all in a timely manner. As such, I recommend that a landlord bring in eviction action as soon as possible and as soon as is permitted by the lease.

Every landlord – tenant situation is unique, and I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action based on this blog post.  To that end, I invite landlords to give me a call at 763-450-9494 to discuss their unique situation. I typically do not represent tenants.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.






 
 
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Landlords often ask me what happens at an eviction hearing in Minnesota. The simple answer is that one of four things can happen, depending on what  the landlord wants to happen and whether or not the tenant shows up.

First, the tenant might not show up, and the landlord will win by default. That means that the landlord can get the Writ of Recovery immediately. The Writ of Recovery is an order from the court which tells the sheriff to remove the tenant from the property

The second option is that the landlord and tenant might be able to work out a settlement agreement, whereby the tenant either agrees to pay up or move out within a certain period of time. I recommend that the landlord give the tenant as little time as possible to comply.  The judge could give the tenant up to seven days, and I generally recommend not giving the tenant longer than seven days, although it is probably okay to go out longer if the landlord so wishes.  Still, I would probably not go out longer than 30 days, unless the landlord wants to be very generous.

The third option is that the tenant shows up, but the landlord and tenant are not able to agree on a settlement of the dispute. However, if the judge finds or the tenant admits that the tenant has violated the lease either by not paying rent, by staying beyond the date allowed in the lease, or in some other way, the judge might find for the landlord anyway. In this case, the judge can stay the writ of recovery for up to seven days if there is a finding of undue hardship, which usually means that the tenant either has young children or an obvious physical disability

The fourth option is that the tenant might request a trial. If the landlord has brought the eviction only because the tenant has not paid rent, then the landlord should request that trial be conditioned on the tenants paying the unpaid rent into the court. In other words, the tenant will not get a trial on the issue of unpaid rent unless the tenant has paid amount of unpaid rent into court. However, if the landlord has brought the eviction also because the tenant has not paid rent and for some other reason, then the tenant can get a trial with out having to deposit the unpaid rent into court

For this reason, I always ask the landlord what they want to happen at the hearing. If the landlord just wants the tenant to move out and be gone, then it makes sense to bring the eviction action for unpaid rent and for any other lease violation or violations, even if that means the tenant can get a trial without depositing the unpaid rent into court. However, if the landlord just wants the tenant to get caught up, then I generally recommend that the landlord bring an eviction action only for unpaid rent, and for no other reason, even if there are other lease violations. In so doing, the landlord hopes that the tenant will realize that the landlord is serious about rent, and will evict the tenant if the rent is not paid.  In other words, by bringing the eviction, the landlord wants the tenant to realize that the landlord means business.

Every landlord – tenant situation is unique, and I recommend that landlords talk to an attorney experienced in evictions and landlord tenant law before taking action  To that end, I invite landlords to give me a call at 763-450-9494 to discuss their unique situation.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.

 
 
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There were three decisions on unemployment benefits this week issued by the Minnesota Court of Appeals.  The second case is unique because the Relator is represented by an attorney, which is always a good idea when appealing to the Court of Appeals.  The third case is unique because the Department of Employment and Economic Development requested reversal, admitting that the hearing was not fair.

1. A15-0433, Leola Banks, Relator, vs. Regions Hospital, Respondent, Department of Employment and Economic Development, Respondent.

Leola Banks’s supervisor discharged Banks from her employment at Regions Hospital after Banks signed prescription-drug order forms as a licensed pharmacist even though she was not a licensed pharmacist. Banks appeals from an unemployment-law judge’s determination that she is ineligible to receive unemployment benefits because she was discharged for employment misconduct. Because Banks’s misrepresenting herself as a pharmacist to order drugs constitutes employment misconduct, we affirm. 

2. A15-0305, Paul Hecimovich, Relator, vs. Always There Staffing, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Paul Hecimovich quit his job as a scrap-iron laborer after one week because his boss yelled at him. An unemployment-law judge (ULJ) determined that Hecimovich is ineligible for unemployment benefits because he quit his employment and the statutory 30-day unsuitability exception does not apply. Hecimovich appeals, arguing that because his employment was unsuitable under Minnesota Statutes section 268.035, subdivision 23a (2014), he need not show that the reason he quit his job was its unsuitability

Hecimovich did not quit his job because it was unsuitable. He quit because it was intolerable to his personal sensibilities. In Wiley v. Robert Half Int’l, Inc., we recognized that the word “because” in the 30-day unsuitability exception establishes that the statute requires an applicant to show a causal relationship between the job’s unsuitability and the applicant’s reason for quitting. 834 N.W.2d 567, 570–71 (Minn. App. 2013). Although the employment’s unsuitability need not be the sole or even the primary reason why the employee quit, it must be one reason. Id. at 571.

Hecimovich’s only reason for quitting was his boss’s yelling at him. The yelling is unrelated to the job’s unsuitability under the statute, and Hecimovich therefore does not establish the required causal relationship. Hecimovich’s counsel conceded at oral argument that reversing the ULJ’s eligibility determination would require us to overturn our decision in Wiley. We decline the invitation to do so.  Accordingly, we affirm the ULJ’s determination.

3.  A15-0703, Patrick H. Horan, Relator, v. Centerline Charter Corp., Respondent, Department of Employment and Economic Development, Respondent.

Relator Patrick H. Horan challenges a decision by an unemployment-law judge, affirmed on reconsideration, determining him ineligible for unemployment benefits. Respondent Minnesota Department of Employment and Economic Development (the department) has filed a letter requesting reversal of the unemployment-law judge’s decision. Horan’s employer, respondent Centerline Charter Corp., has not filed an appellate brief or a response to the department’s letter. Because we agree with the department that the unemployment-law judge did not provide a fair hearing to Horan and that the unemployment-law judge’s decision is not supported by the evidence in the record, we reverse.

If you are denied unemployment benefits, or are an employer who wants to challenge a former employee's eligibility for benefits, your best bet is to meet with an attorney who handles unemployment appeals to discuss your options.  To that end, I represent both applicants and employers in unemployment appeals.  Please call (763) 450-9494 today to set up an appointment to discuss your situation.

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  Also, Tim is licensed only in state and federal courts in Minnesota.  As such, any information provided in this blog post pertains only to those jurisdictions.  Further, you should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.



 
 
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In a published decision issued on Monday 11/9/15, the Minnesota Court of Appeals ruled that corporate landlords -- including limited partnerships -- must be represented by a licensed attorney in district court.

A15-0496: Hinckley Square Associates, Respondent, vs. Leah D. Cervene, Appellant.

On appeal from a judgment ordering her eviction, appellant Leah Cervene argues that the district court erred in denying her motion to dismiss the complaint because 2 respondent-landlord Hinckley Square Associates (“Hinckley Square”) is a limited partnership and did not appear through licensed counsel in district court. Because we conclude that limited partnerships must be represented by counsel in district court, we reverse the district court’s judgment evicting Cervene.

Cervene also argues that the district court erred (1) in declining to dismiss the case because of Hinckley Square’s failure to give proper notices required by federal regulations and the parties’ lease; (2) in finding that she owed the full amount claimed in the complaint, despite Hinckley Square’s failure to adjust her rent obligation according to her income as required by federal regulations and the parties’ lease; and (3) in finding that Hinckley Square effectively increased her rent despite failing to give a one-rental period notice. Because we conclude that Hinckley Square should not have been allowed to appear in court without licensed counsel, we do not reach the merits of these issues.

The Appeals Court concluded that "the district court erred in allowing Hinckley Square, a limited partnership, to proceed through trial without a licensed attorney."  The Court of Appeals "also conclude[d] that the participation of the nonattorneys is not a curable defect," meaning that it cannot be corrected after the fact.

The message for corporate landlords is clear: a corporate landlord, whether a corporation, partnership, or any form of business entity, must be represented by an attorney in district court.  An eviction is an action in district court, and so corporate landlords must be represented by an attorney, even in an eviction.  That has always been the rule, and why Hinckley Square Associates thought it didn't need an attorney is beyond me.

Baland Law Office, P.L.L.C. represents both landlords and tenants in eviction actions, and in other litigation related to the landlord-tenant legal relationship.  Please call (763) 450-9494 to schedule an appointment to discuss your situation today!

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Tim is licensed to practice law only in Minnesota, and the information contained in this blog post may not apply to jurisdictions outside of Minnesota.  Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  You should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.



 
 
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Here is the summary of decisions on attorney ethics and discipline from the Minnesota Supreme Court from May 13 - June 24, 2015.  All cases involving attorney ethics and discipline are notable, but the most unique case during this time period was Kennedy, where the dissent argued that there was an insufficient factual basis to establish a violation of the Minnesota Rules of Professional Responsibility.  Please note there were no decisions on attorney ethics and discipline issued on June 24, 2015.

1. A13-0519 In re Petition for Disciplinary Action against Randall D.B. Tigue, a Minnesota Attorney, Registration No. 110000.

After successfully completing probation, Respondent petitioned for and was granted reinstatement to the practice of law, but remains on probation through April 28, 2016.

2. Al4-1076 In re Petition for Disciplinary Action against Joseph Michael Capistrant, a Minnesota Attorney, Registration No. 187112.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent Joseph Michael Capistrant committed professional misconduct warranting public discipline, namely, failure to promptly return client files, in violation of Minn. R. Prof. Conduct 1.16( d); failure to inform a client that his Wisconsin law license had been suspended and neglecting two lawsuits in Wisconsin, in violation of Wis. R. Prof. Conduct 20:1.3, 20:1.4, 20:8.4(c), and 20:8.4(d); and failure to cooperate with a disciplinary investigation, in violation of Minn. R. Prof. Conduct 8.1(b) and Rule 25(a), Rules on Lawyers Professional Responsibility (RLPR). After respondent filed an answer to the petition, we referred the matter to a referee

The referee made findings, conclusions, and a recommendation. The referee concluded that respondent committed the misconduct alleged in the petition and that three aggravating favors were present, and recommended that respondent be indefinitely suspended with no right to petition for reinstatement for 6 months.

The Minnesota Supreme Court followed the referee's recommendation, and suspended Respondent indefinitely, with no right to petition for reinstatement for 6 months  Reinstatement is conditioned on successful completion of the professional responsibility portion of the state bar examination, satisfaction of continuing legal education requirements pursuant to Rule 18( e), RLPR, and proof of compliance with the terms of respondent's criminal probation.

3. A13-2350 In re Petition for Disciplinary Action against Herbert Azubuike Igbanugo, a Minnesota Filed: May 20, 2015 Attorney, Registration No. 191139.

A 90-day suspension is the appropriate sanction for an attorney who, among other things, failed to communicate with clients, failed to credit client fees, attempted to collect fees that had already been paid, failed to diligently represent clients, and sent harassing letters in an effort to collect legal fees. 

4. A15-0728 In re Petition for Disciplinary Action against Benjamin Eugene Myers, a Minnesota Attorney, Registration No. 341447.

The Director of the Office of Lawyers Professional Responsibility has filed an amended petition for disciplinary action alleging that respondent Benjamin Eugene Myers committed professional misconduct warranting public discipline, namely: commencing a defamation lawsuit based on statements in a disciplinary case and attempting to talk to a judge's law clerk about the lawsuit, in violation of Minn. R. Prof. Conduct 3 .4( c) and 8.4( d) and Rule 21, Rules on Lawyers Professional Responsibility (RLPR); commencing a frivolous lawsuit, in violation of Minn. R. Prof. Conduct 3.1 and 8.4(d); harassing an assistant city attorney, in violation of Minn. R. Prof. Conduct 8.4(d) and (g); failing to appear at a petty misdemeanor trial without having properly withdrawn as counsel for the defendant, in violation of Minn. R. Prof. Conduct 1.1, 1.2(a), 1.3, 1.4, 1.16(d), 3.4(c), and 8.4(d); failing to provide a client with an accounting, in violation of Minn. R. Prof. Conduct l.4(a)(4) and 1.15(b); and failing to maintain required trust account books and records, failing to comply with the Director's requests for copies of documents and information, and failing to comply with a court order, in violation of Minn. R. Prof. Conduct 1.15, 3.4(c), 8.l(b), and 8.4(d). 1 Respondent waives his procedural rights under Rule 14, RLPR, withdraws his previously filed answer, and unconditionally admits the allegations in the amended petition.

The parties jointly recommend that the appropriate discipline is a 60-day suspension and 2 years of supervised probation, and that is exactly what the Minnesota Supreme Court did.

5.  In re Petition for Disciplinary Action against William L. French, a Minnesota Attorney, Registration No. 131945


The Director of the Office of Lawyers Professional Responsibility filed petitions for disciplinary action against respondent William L. French, alleging that French committed professional misconduct in three client matters. Following an evidentiary hearing, the referee concluded that French did not commit professional misconduct in the first two matters, but that he did violate Minn. R. Prof. Conduct 1.3, 1.4(a)(3), 1.4(a)(4), and 1.15(a) in the third matter. We conclude that the referee’s findings and conclusions are not clearly erroneous and that a public reprimand with 1 year of supervised probation is the appropriate discipline for French’s misconduct.


6. A14-0570  In re Petition for Disciplinary Action against Duane A. Kennedy, a Minnesota Attorney, Registration No. 55128 (Dissenting, Lillehaug, Page, and Anderson, JJ.)


The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Duane A. Kennedy, alleging that Kennedy committed professional misconduct by stating in a letter that his client, a complainant in a criminal sexual conduct case, would not testify against the defendant in her criminal case if the defendant settled the complainant’s civil claim for $300,000. Following an evidentiary hearing, the referee found that Kennedy violated Minn. R. Prof. Conduct 8.4(a) and 8.4(d) and recommended a suspension for a minimum of 90 days. We conclude that the referee’s findings and conclusions are not clearly erroneous but that a suspension for a minimum of 30 days is the appropriate discipline for this misconduct. 


The  dissent wrote:

I respectfully disagree with the majority’s conclusion that, by assisting his client, respondent Duane Kennedy engaged in conduct prejudicial to the administration of justice under Minn. R. Prof. Conduct 8.4(a) and 8.4(d). The referee’s theory of unethical behavior, advanced by the Director, is without sufficient factual support. Perhaps realizing this, the majority constructs and applies its own theory, but that theory is similarly without sufficient support.

7. Al4-1602 In re Petition for Disciplinary Action against Albert B. Beety, a Minnesota Attorney, Registration No. 6154.


The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent Albert B. Beety committed professional misconduct warranting public discipline, namely, engaging in the practice of law while on restricted status for failing to pay his attorney registration fee and for failing to comply with continuing legal education requirements, and failing to cooperate with the Director, in violation of Minn. R. Prof. Conduct 5.5(a) and 8.l(b) and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). Respondent now waives his procedural rights under Rule 14, RLPR, and unconditionally admits all of the allegations in the petition regarding his failure to cooperate with the Director and that he engaged in the unauthorized practice of law from 1994 through August 2003

In a stipulation for discipline, the parties jointly recommend that the appropriate discipline is a 60-day suspension, and that is exactly what the Minnesota Supreme Court did.


8. A14-1901 In re Petition for Disciplinary Action against Gregory Gerard McPhee, a Minnesota Attorney, Registration No. 316696

In 2007, the New York Supreme Court, Appellate Division, suspended respondent 2 Gregory Gerard McPhee for 2 years for engaging in a pattern of client neglect, failing to return unearned fees, and failing to cooperate in disciplinary investigations. After learning of McPhee’s New York suspension, the Director of the Office of Lawyers Professional Responsibility (“the Director”) petitioned to impose reciprocal discipline in Minnesota. Because we conclude that the disciplinary proceedings in New York were fundamentally fair and that indefinite suspension from the practice of law without the possibility of reinstatement for 2 years would not be unjust or substantially different from the discipline that would be imposed in Minnesota, we indefinitely suspend McPhee with no right to petition for reinstatement for 2 years.

9. A14-1843 JUN 12 2015 In re Petition for Disciplinary Action against Matthew Thompson Nielsen, a Minnesota Attorney, Registration No. 230698.

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action, a supplementary petition for disciplinary action, and a second supplementary petition for disciplinary action alleging that respondent Matthew Thompson Nielsen committed professional misconduct warranting public discipline, namely, neglect of multiple client matters, failure to communicate with multiple clients, making false statements to and engaging in other dishonest conduct with multiple clients, making a false statement to a tribunal, and making a false statement during a disciplinary investigation, in violation of Minn. R. Prof. Conduct 1.3, 1.4(a)(2), (3) and (4), 3.3(a)(1), 4.1, 8.1(b), and 8.4(c) and (d). Respondent waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), withdraws the answer he previously filed to the petition, and unconditionally admits the allegations of the petition, supplementary petition, and second supplementary petition. The parties jointly recommend that the appropriate discipline is an indefinite suspension of a minimum of 4 months with no right to petition for reinstatement until respondent has been suspended for 60 days

In their stipulation for discipline, the parties indicate that respondent raised several issues in mitigation to the Director. The court has independently reviewed the file and indefinitely suspends respondent with no right to petition for reinstatement for 4 months.

Tim represents attorneys facing professional discipline, and consults with attorneys about whether a particular situation or proposed course of conduct implicates the Rules of Professional Conduct.  When faced with a situation that may implicate the Rules of Professional Conduct, Tim always recommends that an attorney seek an advisory opinion from the Office of Lawyers Professional Responsibility. 

WARNING: The information contained in this blog post does not constitute legal advice and may not be applicable to your situation.  Reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C.  Also, Tim is licensed only in state and federal courts in Minnesota.  As such, any information provided in this blog post pertains only to those jurisdictions.  Further, you should always discuss your situation with an attorney before taking any action based on what you may read in this blog.  To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.