Category Archives: General Law

Bad Laws: How Good Intentions Can Cause Harm

People want their families to feel safe from the dangers of the world.  It is this feeling that forms the foundation of our legal system.  All types of laws are drafted with this safety in mind.  There are ordinances to make sure buildings are safe.  There are traffic laws to insure that we drive in a safe manner.  There are a many laws to govern how we treat one another.  These include laws that punish those who harm members of the society, such as rape and murder.  These laws are known as malum in se.  Of course, there are also laws that punish regardless of intent, like speeding or most forms of illegal possession.  These laws are known as malum prohibitum.  If you haven’t noticed, there is a theme going on here.  The theme is intent, either on the part of the wrong-doer or the legislature.  Punishing the evil intent of a potential criminal is pretty straight forward as well as supported by the society at large.  The trick part is when the legislature’s intent is to punish regardless of the actor, deeming the act itself illegal.  I’m sure you have a question, like where is this going.  The next step in our discussion is here.

A woman, who is a fourth year medical student and from Tennessee, visits the 9/11 memorial while on a job interview in New York.  The woman, who had no criminal record and is licensed to carry a handgun in Tennessee, spots a sign at the memorial that states no weapons are allowed.  Being the law-abiding citizen that she is, the woman then locates a security guard to have her gun checked before she enters the memorial. The guard escorts her to a police officer who promptly arrests her for carrying an illegal firearm.  It’s illegal since the woman did not have a license to carry a handgun in New York as firearm licenses are not reciprocal between states like driving licenses are.  The district attorney in the case is seeking the minimum sentence for felony gun possession, which is three and a half years.

Now for the fun, what intent is being punished in this scenario?  The woman does not seem to possess the “evil-doer” intent as she was trying to obey the laws.  (Of course, unbeknownst to her, to be in compliance with New York law, obeying the law would have meant leaving her gun at home.)  The usual intent of the legislature in illegal handgun cases it to be tough on crime and add extra sentences to those guilty criminals who use or possess guns.  Thus, a drug dealer arrested with an illegal gun would face an extra three and a half years on top of his conviction for drug dealing.  The laws are written this way so that any judge sentencing a criminal cannot use his/her discretion and lower the sentence.  The problem with these types of laws is when people whom the law is not designed to target get arrested, such as the average person.  Legislators in this case are even asking the district attorney to not seek the minimum punishment.  This is an interesting situation, as legislators are asking a government agency to not enforce a law that the legislature wrote.

Now, there is not much that can be done for the woman from Tennessee.  She is just going to have to see how things shake out in the end.  What can we do about the future?  We’ll just have to think about what type of society we want and elect the appropriate legislators.  Do we want a society where the courts can use their discretion during sentencing? We would have to accept that there will be occasions where, every once in a while, a particular sentence will not be harsh enough for a particular criminal.  Or, do we want laws that have enforced minimums for certain crime?  We would have to accept that these laws would allow for people to serve long sentences even though the “criminal” had no intent to harm anyone?  No answers here, just a lot of thinking.

If you have any legal questions, check out my website and contact me.


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Does Bevilacqua Matter to the Average Joe?

Well, like almost everything else in law, the answer is; it depends.  First, before we can examine that answer we must explore some history.

In mid-October, the Massachusetts Supreme Judicial Court (“SJC”) decided the case of Bevilacqua v. Rodriguez, 460 Mass. 762, (2011).  This case, along with Ibanez decided earlier in the year, is a continuation of the courts’ struggle in untying the foreclosure knot.  This “knot” was created during the heyday of the last decade.  The untying of this knot, and dealing with its consequences, is proving to be difficult.

What happened to Mr. Bevilacqua? 

The background of the case is simple; Mr. Bevilacqua purchased an unclear title.  The property was foreclosed on by US Bank.  Mr. Bevilacqua purchased the property from US Bank and then spent hundreds of thousands of dollars converting the property in to condominiums.  Then the ruling of Ibanez, which held that improperly executed mortgage documents affected an owner’s title, clouded Mr. Bevilacqua’s title.  (Apparently, US Bank began foreclosure proceedings a month before it was assigned title,and thus, had no right to foreclose.)  Thus, US Bank did not have clear ownership of the title it sold to Mr. Bevilacqua.  Mr. Bevilacqua brought his case to Land Court in a try title action on order to clear the title.  The Land Court ruled that he did not have standing to bring the action since he did not have title.  Mr. Bevilacqua appealed and the SJC upheld the Land Court’s decision.

What does all this mean?

The simplest answer for Mr. Bevilacqua is that the chain of title is broken.  He needs to fix the chain in order to gain ownership.  How can he do this?  Luckily, the SJC left open the idea of how chain of title can be repaired.  There are two options with variable parts: (1) a quit claim deed, or (2) another foreclosure.

The first and easiest method, legally, would be to buy a quitclaim deed for the property from the original owner who was foreclosed upon, a man named Mr. Rodriguez.  Of course, this method would depend upon how easy it is to track down the former owner.  (For Mr. Bevilacqua this could be difficult since Mr. Rodriguez never responded to any court filings.)

The second option, foreclosure, has many options depending upon who performs the foreclosure.  Mr. Bevilacqua could foreclose upon the property himself, in an effort to clear the title.  This option would require Mr. Bevilacqua to follow the foreclosure requirements such as sending notices, etc.  The legal fees would be in the thousands.

Mr. Bevilacqua could also use the old common law foreclosure process.  This process requires the forecloser to enter the property, state that he is foreclosing and file a certificate with the registry of deeds.  The waiting period after the filing is three years before the property is foreclosed.

The final foreclosure option is demanding that the bank re-foreclose on the property.  This option includes another problem.  Since there would be another foreclosure auction, Mr. Bevilacqua might not be the highest bidder and thus, might not win the property.  If that happened, there would be more legal trouble as Mr. Bevilacqua tried to recover the funds he invested in the property.

What does all this mean to the Average Joe?

Back to the original question posed at the beginning to this post: what does the mean to the average person.  Honestly, not much.  The average person is more concerned about retaining his home and is not too concerned about obtaining more property for investment purposes.  Now if the Average Joe is considering purchasing property, especially if this property was foreclosed on, it might be a good idea for the Average Joe to review the title history of the property to insure that there are no Bevilacqua issues.  It would probably be a better idea to have an attorney also review the title history in, just to make sure.

If you have any legal questions, check out my website and contact me.

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Something New

Hello.  I am an attorney that opened my own office in Clinton, Massachusetts in January of 2011.  My practice is focused primarily on bankruptcy, criminal law, family law and some estate planning.  The purpose of this blog will be to explore the ever changing field of law and discussing the effects of those changes on the world around us.  My goal is to make posts twice a month.  I hope you’ll enjoy reading this post.  If you are curious about me, my website can be found here.

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