Recently (2008-10) I have handled numerous real estate (property and construction) cases, both at the pre-litigation
dispute stage and in litigation, primarily as related to materialman/subcontractor/contractor liens and actions to foreclose
thereon - in conjunction with claims for breach of contract, accounts stated and general damages, etc.
The statutory
scheme for materialman/construction lien claims is extremely convoluted - and much of it had to be re-learned as of March
31, 2009, when fairly substantial changes to the statutory framework were enacted - and it is therefore extremely important
for those seeking counsel to handle disputes involving these issues to be certain that any attorney being considered has specific
litigation experience involving these unique nuances.
All too often I have heard or read about cases in which
an attorney who is otherwise very experienced and competent in general civil litigation [and even real estate], but who lacks
the specialized knowledge about the materialman/construction lien statutes, commits one 'minor' error or procedural misstep
that ultimately proves fatal to the client's claim. Georgia appellate courts are fairly unforgiving in their strict reading
of the statutes and caselaw [and it is important to note that since our lien statutes are considered to be in "derogation"
of (or contrary to) common law, they are usually construed against the claimant]; accordingly, rather harsh consequences often
result from an attorney's mistake.
For example, the recent [GA] caselaw is replete with scenarios such as the following,
which were held to be fatal to the claimant's lien claim and resulted in a defense verdict:
Failing to accurately describe
or identify the property that was the subject of a Claim of Lien with sufficient precision to satisfy the evidentiary
burden, which is unusually stringent;
Failing to timely file a Notice of [Lien] Action - which is a separate
pleading that is required to be filed in the Superior Court of the county in which the lien action was filed [see, e.g., O.C.G.A.
§ 44-14-361.1];
Failing to pay the fees associated with the above-referenced Notice of Action;
Failing
to properly execute such a Notice under oath (amendable defect);
Failing to identify with precision the identity
of the parties or property that is/are the subject of the Claim of Lien and lien action;
Failing to include
the proper necessary and indispensable parties to the foreclosure suit; and
Failing to recognize the unusual idiosyncrasies
that exist in claims involving a claimant [i.e. subcontractor] who contracts with a tenant of the owner/landlord of the property
(generally speaking, a tenant cannot, by requesting that a contractor or subcontractor make improvements thereon, bind or
subject the fee simple interest of an owner's property to a lien claim; there are some very narrow exceptions, which form
yet another layer of complexity to the already convoluted analysis - and I am in the process of writing an article on this
exact topic).
And the list goes on and on.
I have substantial experience in handling (primarily prosecuting)
Truth-in-Lending Act (TILA) and related consumer/credit cases - including those involving the Fair Credit Reporting Act (FCRA),
Fair and Accurate Credit Transactions (FCRA/FACTA), Fair Debt Collection Practices Act (FDCPA), Fair Credit Billing Act (FCBA),
Real Estate Settlement Procedures Act (RESPA), etc.
Last year, for example, I reached a favorable settlement on behalf
of a client who had received a [very subtle, yet significant] misleading letter from a debt collection agency, leaving him
confused as how to respond to the payment demand. To be sure, just last week [April 2010], the United States Supreme Court
issued an opinion in a very similar case. See Jerman v. Carlisle et al., 2010 WL 1558977 (U.S.).
Jerman
involved a letter issued to a homeowner debtor by a law firm acting on behalf of a mortgage company who was seeking to foreclose
on the debtor's home. The letter erroneously advised the debtor that she must dispute the alleged debt in writing. The Court
rejected the law firm's FDCPA's § 1692k(c) 'bona fide error' defense and held it does not apply to a violation resulting
from a debt collector's mistaken interpretation of the legal requirements of the FDCPA. The lesson to be learned from the
Jerman opinion - with the Court reaching the correct result, in my view - is that debt collectors are well-advised
to make sure their FDCPA notice letters are in complete, unequivocal compliance with the statutory requisites.
VEHICLE WARRANTIES & SERVICE CONTRACTS
I am also currently (2010) handling
numerous disputes involving consumers who have purchased automobile/motor vehicle [car] so called "Extended Warranties"
- which, in the typical scenario, are more accurately described as "Service Contracts". These disputes often involve
a "warranty" or repair company that has denied a claim based on an alleged failure by the vehicle's owner to comply
with the routine maintenance as defined by the manufacturer/owner's manual, etc., and unreasonable requests to provide proof/documentation
evidencing the vehicle's service/maintenance history. Other disputes involve questions as to whether or not something is a
"Covered Part" or whether or not there has been a "Failure" of same as defined by the contract.
I
usually look to the UCC and any related state and federal provisions governing these issues - most of which are outside the
scope of this context, but if this sounds like a dispute or issue you are experiencing, by all means, please contact me.
