If you suspect you or your client is a victim of automobile fraud, one of the first things you will need to do is figure out who owns the dealership. This can be difficult because many dealerships are simply "doing business as" [name of dealership]. They are doing business under an assumed name while being owned by another company, partnership, or individual.  

The first place to look for ownership interests is the Kentucky Secretary of State's website. There, you can enter the name of the car dealership and, hopefully, find an active company, partnership, or certificate to do business under an assumed name.  

Consumer laws exist to protect Kentuckians from some car dealers' abusive sales tactics. 

Unfortunately, sometimes that doesn't work. The next step is to file a Request to Inspect Public Records from the Kentucky Motor Vehicle Commission. I did this yesterday in a case I'm researching against a dealership that, I believe, wrongfully repossessed my client's car (and did so in a fraudulent, abusive, inhumane way). When I called the Motor Vehicle Commission, I asked how I would request the dealership's most recent application for a license to sell cars in Kentucky and was told that they could fax or mail me the Request to Inspect Public Records. 

"I's not available on your website?" I asked. 

"No. I can fax it or mail it to you."  

Here is a .pdf of the Request to Inspect Public Records from Kentucky's Motor Vehicle Commission. Use it to request the most recent application for a car dealer's license. Here is a copy of the blank application to become a car dealer in Kentucky. It will give you a sense of the information you will get by requesting the dealer's license application. 

Of course, if you are a consumer and you suspect you have been victimized by a car dealer through fraudulent or scammy tactics, you should consult a lawyer to determine what, if any, legal recourse you might have to fix the fraud, unwind the deal, or pursue the dealer for money damages. This is not the post to explain the many, many ways that car dealers can take advantage of consumers through odometer rollbacks, fraudulent omissions of material facts, scammy financing, yo-yo sales, and wrongful repossessions. This is just to say that you should contact a lawyer because laws exist to protect consumers from the predatory tactics some car dealers use to make a quick (and highly profitable) sale. 

If you weren't at Bonnie "Prince" Billy's show last night to benefit the Network Center for Community Change, well, lo siento. 

But, if you don't want to miss great live music in Louisville (or anywhere), here is a radio station I made on my buddy Howie Cockrill's smoking-good website, Deli Radio, of all the bands coming to Louisville in the next two weeks.  Happy Monday. 

DeliRadio allows you to create custom playlists based on location and genre(s) to find live music where you live (or—and I use this a lot—where you're traveling to). WELCOME TO THE FUTURE.  

Riding my dad's old Raleigh ten-speed to my law office this morning, I started thinking about all the things that could go wrong for a bicycler, all the things that have  gone wrong for me. Being a bicycler is a lot like being a lawyer: it feels like the right thing to do, but seems fraught with more peril than is necessary. So, bicyclers, what do you fear when you hop in the saddle? (Because some of these events pose the risk of serious injury or death, when gauging your fears, weigh your perceived likelihood of the event occurring multiplied by the consequences of that event's occurrence.)

I'll tally these answers up and report back next week.  

When I proposed this idea to city officials in Louisville last month they literally laughed at me.  

 "Possibility City". 

Today was my first day of cycling to work. New house + new office = new commuting opportunities.

I'm a bicycling lawyer and I sue reckless or negligent drivers. 

I rode my bike every day to law school down Nicholasville Road in Lexington, so I'm accustomed to riding in traffic. But, I have found Louisville to be uniquely unfriendly to cyclists. On-street parking makes the possibility of getting doored everpresent and there are no protected bicycle lanes. If Louisville is going to grow into the Possibility City it aspires to be, we have to do a better job accommodating cyclists. 

The tragedy here is that Louisville would make a GREAT cycling city if it invested in bicycling infrastructure. The river, the views, the neighborhoods, the usually-gentle weather, and the relatively flat terrain all make Louisville perfect for cyclists. 

It took me 20 minutes and 45 seconds door-to-door (my route). I could have ridden faster, but cycling to work is a delicate balance of a number of factors: a) reducing your time in the seat while b) regulating body temperature so your officemates don't vote you and your B.O. off the office island and c) being safe.  

Speaking of being safe, I want to take a moment to rant about cyclists and motorists. Riding into work, I thought, "Maybe I should get a big patch made for my bag that says,

I'm a lawyer and I sue reckless drivers.

bencarterlaw.com

I wondered if that might give me a modicum of added protection against abuse by motorists. At the same time, I have seen some dumb, dumb, dumb cyclists in Louisville recently. Last Saturday, one woman was just riding at her leisure down the center of Frankfort Avenue heading north. In my car, I pulled up beside her and said, "'Share the road' goes both ways, you know." I'm not normally a dick, but that was a real dick move on her part. Obnoxious cyclists alienate drivers and make them more likely in the future to not respect cyclists. In a way, I felt like saying that to her was an act of self-protection. Listen: whether you're a cyclist or a driver, just don't be a dick. 

Having stated that rather obvious truth, if you are a cyclist that has been injured by the negligence or recklessness of a driver in Kentucky, contact me. Unfortunately, Kentucky is not a very bicycle-friendly state and you do not have the same rights and protections here as in other places. You still have the right to file a lawsuit and make the driver pay for his or her negligence or recklessness. Let me help you do just that. 

I've moved Ben Carter Law to a little corner (not literally) of Bahe Cook Cantley & Nefzger. Practicing law is hard and stressful and it helps to have friends to work alongside. 

My new office is one block north of where my old office was. New address: Ben Carter Law PLLC, Marion E. Taylor Building, 6th Floor, 312 South Fourth Street, Louisville, KY 40202. 

Come say hey. 

 

I get a lot of questions about how to report identity theft. Here is the step-by-step instructions from the Federal Trade Commission.  

As you may have already guessed, I have to postpone the Commonwealth Justice conference I had hoped to host in August. 

Apparently, someone radically underestimated how hard starting a law firm would be and how much time he would be able to devote to organizing and hosting a conference for social justice-minded attorneys and organizers in Kentucky. 

I don't know when the conference will occur—probably sometime in 2014—but I am committed to making it happen. Thank you for your early support of the idea and stay tuned for updates.

Last night I had the opportunity to provide color commentary to a talk Michael Poindexter, researcher at NC3 and all-around dude, did for a group of MBA students at Sullivan University. Michael spoke about the Network's use of data to make the case for change here in Louisville and around Kentucky. 

As promised, here is the link to the presentation slides.  

Preparing for and giving this talk gave me a chance to reflect on the role data has played in my advocacy—inside and outside the courtroom—first at Legal Aid Society and now at BCL. As I told the students last night, nothing in my liberal arts or legal education instilled in me an appreciation of the importance of data. Nor did my time in school prepare me for the challenges of determining what data I should collect, how I should get my hands on that data, or how to evaluate the data once I captured it. In the 21st century, that I was able to spend seven years in higher education and not have one data analysis class is harrowing. "Data" should be a required class at all law schools. 

Hearing Michael talk also renewed my understanding of just how unique NC3 is as an organization. Here is a group of people who gather data—both quantitative and qualitative—from people and neighborhoods who have not had the political power to control what data is collected about themselves and their communities. NC3 then helps those same people find avenues to use that data to advocate for social and political change. I don't know of another organization like it. 

If you want to support the Network's work, you can buy a ticket to go see Bonny Prince Billy LIVE IN CONCERT on Saturday, August 4. Mr. Billy is a member of the Network and is playing a show at the Kentucky Center to benefit NC3. Or, you can straight-up donate.

Yesterday, David Bryant, Jasper Ward (both of Jones Ward), and I filed a class action complaint in the Western District of Kentucky alleging that General Motor's Chevrolet Cruze has a defect that spreads sickly-sweet antifreeze vapors into the passenger compartment of the car. I encourage you to read more about the case or view the class action complaint. 

If you own a 2011 model year or newer Chevrolet Cruze and want to find an attorney in your state to review your case, go to consumeradvocates.org and click on the "Find an Attorney" tab. 

I love Jon Stewart (@thedailyshow) for his ability and willingness to explain and lampoon MERS.  

As a foreclosure defense attorney, I have to spend a lot of time explaining to clients, opposing counsel, and courts things like the Uniform Commercial Code, residential mortgage-backed securities, pooling and servicing agreements, and, yes, MERS. I really admire Jon Stewart's ability to cut to the heart of a really (and purposefully) complicated and opaque system for privatizing the responsibility for recording the ownership of mortgages across America and the damage that privatization has done to countless homeowners. 

I used to think that lists of "top" attorneys were worthless popularity contests.

Then, I was listed in one.

Now, I'm happy to report that you can rely on Louisville Magazine as the exclusive arbiter of legal acumen in the River City. 

A few years ago, my best friend, Billy Parker, shared this halftime speech with me. It has become an important message for me to hear from time to time. It is especially important to me as an attorney that represents consumers and homeowners who are counting on me to fight some of America's most powerful, well-connected, well-funded industries. Life is fighting for inches and I hope my clients know that I understand that. 

I was in Fayette County this to appear for my client, a homeowner facing foreclosure. I counted the number of motions that were foreclosure-related and how many were other civil actions. Of the 32 motions made, only seven were not related to foreclosures. Twenty-seven (84%) were foreclosures.

With foreclosures dominating motion hours and dockets across the state and straining Court resources, it is time to increase filing fees on foreclosures? Increasing foreclosure filing fees would be a great and long-overdue way for Kentucky courts to fund foreclosure mediation and dispute resolution efforts.  The current system was not designed to deal with the volume of foreclosures currently filed each year and each case is fact-specific and requires the Court's attention to ensure banks do not inflict needless foreclosures on our communities. 

Kentucky needs additional systems to deal with foreclosures and increasing the filing fees on foreclosures can help fund the construction of that infrastructure.  

Why am I working in silence when Kishi Bashi exists and I can hear?

As anyone who knows me knows, I am a bit of an information hoarder. I have backups of backups. I have scans of important or memorable documents and a fireproof safe for precious documents. 

One of the areas of my life that had consistently frustrated my hoarding habit was legal research until I discovered Evernote.

The problem with saving legal research is that it's difficult to create a useful taxonomy for the stuff. When saving cases, should I save it in a subfolder in the case I'm working on? That seems logical but then retrieving the case years later will require me to remember exactly what case I was working on when I came across "that one case that stood for [insert legal issue] proposition". 

If instead (or additionally), I opt to save it under the legal issue the case stands for, what should I do when the case stands for two important propositions? Kentucky attorneys will obviously know that Steelvest, Inc. v. Scansteel Service Center, Inc. gives us our summary judgment standard in state court. But, it also states that a breach of fiduciary duty is tantamount to fraud. As a consumer advocate, this is an important part of the case. Do I save Steelvest in three places: the client file, the research file on summary judgment, and the research file on breach of fiduciary duty?  

No.

I save it to Evernote by emailing it from my online research service using a special email address Evernote provides. When I email that case to Evernote, the .pdf is automatically OCR'd so that a later search for any word in the case will yield results. This means if I can just remember a snippet of language or even what judge decided the case or attorney argued the case, I can search in Evernote and find the case. (I also have a spotless .pdf that I can attach to motions and memoranda.)

Even better, though, than the automatic OCR is Evernote's organizational tools. Evernote gives users the option of placing notes in notebooks (folders) as well as tagging the notes. This means that I can email Steelvest to my Evernote account, save it to a client's notebook, and tag it with the tags "summary judgment" and "bofd" (my shorthand for "breach of fiduciary duty"). Later, I can retrieve that case in one of three ways: I can remember the client notebook the case is saved in, I can find the case by reviewing the cases that have a particular tag, or I can search for the case in the search window using words that are likely in the language of the case. 

Lawyer–Nerds should be very excited right now. And it gets better. Are you ready to have your mind blown?  Evernote gives you the ability to send a case to a notebook with certain tags in the subject line of the email you send to Evernote. They explain on their blog how this works:

In the subject line of your email, write the title of the note as you want it to appear in your account. In the same subject line, add one or both of the following:

Use @ for notebooks: Use an @ symbol followed by the name of your destination notebook Use # for tags: Use a # symbol followed by the tag or tags you wish to assign. You can have multiple tags just make sure each one starts with an # For example, Subject: Trip to Florida @travel #expense report

Would create a note titled Trip to Florida in my travel notebook, tagged with expense report.

So, in one step, I am able to put a filed, tagged, OCR'd Steelvest into Evernote by emailing it to myself with this subject line: Steelvest @clientname #summary judgment #bofd

This is, to employ some fancy lawyer-speak, bonkers.

Any seasoned advocate will tell you that having a system that will allow you to accrete and retrieve your past legal research will yield wonderful benefits over the course of a legal career. I am totally invested in Evernote as that system because it allows me to easily and usefully create multiple taxonomies of meaning for my legal research. At $5 a month or $45 a year, the premium membership is a basic business expense that every lawyer should happily incur.

Ben Carter Law PLLC has filed a class action lawsuit Jefferson County Circuit Court against attorney Marilyn Hartley, one of Louisville's largest private tax collectors. Ms. Hartley collects taxes under an assumed name, "DETCO".

In Kentucky, local governments fund their operations in part by selling unpaid property taxes as "Certificates of Delinquency" to individuals and businesses. These Certificates of Delinquency give these individuals and businesses the right to collect delinquent taxes. Today, 115 individuals and businesses have registered to purchase Certificates of Delinquency and function across the Commonwealth as private tax collectors. In the past, delinquent taxpayers didn't know what to expect from these private tax collectors: some were responsible and honest while others crushed delinquent taxpayers by charging them exorbitant, unjustified fees and costs and sometimes forcing the taxpayer's home into foreclosure. 

In 2012, the Kentucky legislature passed new laws and the Department of Revenue issued new regulations in an effort to curb the most abusive practices and ensure that third-party purchasers treated Kentucky's delinquent taxpayers fairly and uniformly. When a third party purchaser like Marilyn Hartley buys a Certificate of Delinquency, these new laws and regulations require third party purchasers to provide important information to delinquent taxpayers. The laws and regulations ensure transparency from the third party purchaser and require the third party purchaser to explain to the delinquent taxpayer the taxpayer's rights, obligations, and alternatives now that a third party purchaser owns the Certificate of Delinquency.

Transparency from the third party purchaser, fair treatment of an individual delinquent taxpayer, and equal treatment of taxpayers across the industry are important goals to the legislature: the new law forbids third party purchasers from charging interest, fees, or costs to a delinquent taxpayer's account unless they have provided the required information to the delinquent taxpayer.  

On January 22, 2013, I filed a class action lawsuit on behalf of my client—James C. Brown—and 459 other delinquent taxpayers who have been harmed by the failure of Marilyn Hartley to provide them with necessary, required information about their rights, obligations, and alternatives after she purchased their Certificates of Delinquency. Ms. Hartley purchased more Certificates of Delinquency in Jefferson County last year than any other third-party purchaser.

Read the Class Action Complaint and view the exhibits to the Complaint. 

Despite her failure to provide delinquent taxpayers with the required information, Ms. Hartley is charging interest, attorney's fees, administrative fees, and—in some cases—payment plan servicing fees. The law does not allow Ms. Hartley to charge interest and fees until after she has sent a proper notice of transfer that contains all of the information required by the new law. I believe that Ms. Hartley has unlawfully charged to the accounts of Mr. Brown and the Class members 1% interest per month, at least $52,900 for administrative fees, and at least $80,500 for attorney's fees. 

The heart of the suit is summed up in paragraph 146 of the Complaint:

In short, Defendant’s entire course of conduct—from her effort to obfuscate the true relationship between Marilyn Hartley and DETCO, to her failure to provide proper notice of transfer, to her failure to itemize both the amount currently due and the amount due under a payment plan, to her unlawfully inflated claims of amounts due under a payment plan, to her presentation of a payment plan as a one-time opportunity with a limited time to accept, to her citation to expired law—is an elaborate artifice designed to disorient hundreds of consumers, confront them with a placeless and faceless creditor, “DETCO”, and intimidate them into paying her hundreds of thousands of dollars in interest, attorney’s fees, administrative fees, and servicing fees to which she is simply not entitled under the law.

This lawsuit seeks to force Ms. Hartley to refund to the accounts of the Class members all of the unlawful interest and fees she has charged to the delinquent taxpayers' accounts. My client is asking for an injunction that would prohibit Ms. Hartley from charging fees and interest to the accounts until she has sent a notice that complies with Kentucky laws and regulations. Further, the lawsuit seeks to recover additional damages because Marilyn Hartley made false and misleading statements to get some delinquent taxpayers to enter into a payment plan agreement with her that requires them to pay interest and fees to Ms. Hartley to which she is not entitled. Finally, the lawsuit seeks punitive damages. Punitive damages in this case will serve three functions. They will:

1. Punish the Defendant for charging delinquent taxpayers interest and fees that the law forbids her from charging,
2. Make an example of the Defendant for other third party purchasers who might be tempted to line their pockets with bogus and unlawful interest and fees, and
3. Level the playing field for the third party purchasers who are abiding by the law and yet have been injured by the competitive advantage Ms. Hartley has enjoyed by charging delinquent taxpayers unlawful interest and fees.   

If you have been contacted by Marilyn Hartley or DETCO or if you are currently paying DETCO under a repayment plan, you can contact me online, email me at ben@bencarterlaw.com, or call (502) 509-3231. 

There are 115 other third party purchasers of Certificate of Delinquency operating in the Commonwealth of Kentucky today. If you suspect you are being charged too much by a third party purchaser or would like me to review a letter you received about your delinquent taxes, please contact me.

The Consumer Financial Protection Bureau (thanks, Senator Warren!) issued new rules for mortgage servicers yesterday. The good news: they're good rules. The bad news: they don't kick in until January 10, 2014. [Sad face].

Read more about the rules and the press coverage.

Even though the rules don't apply until 2014, I think that Kentucky attorneys defending homeowners facing foreclosure can consider using the rules (and the abusive, reckless, callous, obnoxious behavior of servicers that made these rules necessary) in briefs sooner rather than later. They establish an industry standard. There's good language in the Background section of the "Summary of the final mortgage servicing rules".

I am presenting to a group called "friskies" tomorrow morning. These are people who work at our schools' FRYSCs: Family Resources and Youth Services Centers. FRYSCs are on the front lines of out-of-school problems kids and families are facing that could affect in-school achievement. Tomorrow, they want info on renters' rights in foreclosure because this is an issue they see arise over and over again. FRYSCs report that often children and their families lose housing quickly and without much warning because a landlord and the foreclosing bank fails to tell the renter about the foreclosure. 

Because of the Protecting Tenants in Foreclosure Act, renters have substantial rights regarding their ability to enjoy the property they are renting even though it is going through a foreclosure. Originally scheduled to expire at the end of this year, the protections were extended through 2014 as part of the Dodd–Frank Act. Unfortunately, cuts to funding to Legal Aid organizations means that renters do not often have the representation they need and these rights often go unenforced. 

Renters' rights are pretty straightforward under the Protecting Tenants in Foreclosure Act. Provided you are not related to the landlord, are paying a fair price for the rent, and the rental agreement was an arms-length transaction, you are allowed to stay in the property all the way through the sale of the home in foreclosure. Even after the sale, the new purchaser must ask the court to issue him or her a deed. Only after the court issues a new deed can the new owner send you a Notice to Vacate and even then the new owner must provide you with ninety days (NINETY!) to vacate and find new housing. 

That's the bare minimum. If you have a lease agreement with the old landlord that lost the property in foreclosure that lasts longer than the ninety day minimum notice, you are entitled to enjoy the property for the duration of that lease unless the new owner plans on occupying the property as his or her primary residence.

As I said above, these are substantial rights that are rarely enforced because we do not fund legal aid organizations they way they should be funded and our legal system does not provide the infrastructure to renters that it should. I have created a document I'm calling "Entry of Appearance and Notice of Rights under the Protecting Tenants in Foreclosure Act". Two versions are below. One is blank and can be downloaded and handwritten. The other contains form fields into which you can type the required information.

Before you go using these forms, listen: I am not your lawyer. By using these forms you acknowledge that you are unrepresented by counsel and are seeking to assert your rights yourself, without an attorney. If I were going to be your lawyer, you would have to contact me and we would have to actually, you know, talk and you would probably have to pay me money. I am providing these forms as a community service and do not promise they will be useful or effective in any way. You know what is effective? Having a lawyer. So, you can contact me or contact the Kentucky Lawyer Referral Service to find one to help you with your case. I hate to get a stern tone with you, but seriously: I'm not your lawyer. 

All that being said and understood, here are the forms. You can "right-click" on these links to download the files to your computer).

• Blank "Entry of Appearance and Notice of Rights" (good for handwriting)
• Form-Fillable "Entry of Appearance and Notice of Rights" (good for people with computers)

Renters are often less financially secure than homeowners and so the disruption of a foreclosure can hit innocent renters even harder than it can the landlord being foreclosed upon. The Protecting Tenants in Foreclosure Act is designed to offer a brief period of stability following a foreclosure sale while the tenant endeavors to secure new housing. It's important to our community and especially our kids that we as a legal community do everything we can to provide them that stability in a time of flux. 

Do you know that sometimes being a lawyer gives me the chills?