And you thought Christmas came early

Have you ever rented a car?  I do from time to time when I'm out and about the country.  

Easy to do and easy to find a cheap rate.  The problem some people have is returning the car when the contract period ends.

Wait, what?!  What are you talking about Willis?! 

Say you rent a car on Monday the 9th of the month.  The contract says you are to return it on Friday the 13th of the month.  Friday the 13th comes round and you decide you like this car so much that you're gonna keep it. 

That's "keep" as in you're not going to buy it - except for the rental price you paid on your credit card.  I mean, it's such a sweet deal.  You paid maybe $40 for a car that typically costs anywhere from $30-$38,000.  

Didn't have to deal with the bank.  Didn't have to deal with financing (well, except for the monthly charge on the credit card which you're probably going to default on, anyway).

Yep, sounds like a sweet deal all around.  Except that what you're doing is stealing. 

Ooooooh, most people don't like being told they're doing wrong and stealing is such a nasty word.  So, nay, nay, you're not stealing the car, you're just uhhhhhh borrowing it....on an extended basis.  

Yeah, no. You're stealing the car. Congratulations, you are now a car thief.

See, the reality of things is that people who rent cars but don't return them are committing a crime usually called grand theft or vehicle embezzlement which involves breaching the rental contract and is a form of theft of services. 

What the car rental company does when a car doesn't come back: 

1. After a renter fails to return a car, the rental company will first attempt to contact the renter by phone and try to charge the credit card on file for the additional rental days and any late fees.
2. If the renter continues to ignore calls and payments aren't made, the company may escalate the issue to a specialized risk or recovery division.
3. The company might also attempt to charge additional funds to cover potential damages or the vehicle's value, potentially tying up the renter's credit line.
4. Eventually, the rental company will report the vehicle to law enforcement as stolen, initiating a criminal investigation.

What the (now) car thief can expect after the theft:

1. The renter can be arrested and charged with grand theft auto or vehicle embezzlement.
2. Law enforcement will attempt to locate and recover the vehicle.
3. The renter may be ordered by the court to pay restitution for the car's value or any damages caused. 
4. A conviction can result in a criminal record and further legal penalties. 

States generally look at this sort of THEFT as a misdemeanor or a felony based on a few factors, such as:

• The value of the vehicle

• Whether the offender (at the point they took possession) had intent to permanently deprive

• Whether there was a fraud or false representation involved

• Notices demanded by statute (some states require written demand before prosecuting)

• How long after the due date or after a written demand

While each state generally does their own thing, the legal doctrines commonly associated with failure to return a rented vehicle include:

• Failure to return rental vehicle statutes: specific laws saying it is a crime to not return a rented vehicle after the rental period expires.

• Conversion / fraudulent conversion: using or withholding someone else’s property in a way inconsistent with the owner’s rights.

• Theft / Larceny: when the behavior rises to the level of permanently depriving the owner of the vehicle.

• Embezzlement: in some states, because the renter originally had lawful possession, failing to return can be an embezzlement if there is intent to permanently deprive.

• Hiring with intent to defraud: obtaining the vehicle under false pretenses, or misrepresenting things, can trigger fraud or similar charges.

So, how have the courts dealt with people who don't return rentals?

Hertz Corp. v. Jackson, 617 So. 2d 1051 (Fla. 1993).
In this case, the renter did not return the car by the due date of the rental term. Hertz contended that the failure to do so constituted a “breach of custody amounting to a species of conversion or theft.”

Holding: The Florida Supreme Court affirmed summary judgment for the rental company on grounds that, under the facts — including that the car was never returned, notice was made, and the company reported the car stolen — the situation amounted to conversion/theft. 

Alamo Rent-A-Car, Inc. v. Mendenhall, 937 P.2d 69 (Nev. 1997)
Facts: A person renting a car from Alamo failed to return it, then fraudulently obtained a new title, sold the car, etc. Alamo reported the vehicle stolen.

Holding: The court held that the buyer (Mendenhall) who purchased it for value and without notice of the defect could be bona fide purchasers entitled to possession, so they got the car back. The case illustrates what can happen when someone renting fails to return it and engages in misrepresentation.

Ming v. Interamerican Car Rental, Inc., 765 So. 2d 650 (Fla. 2000)
In this case, there was a question of whether using the vehicle beyond the rental term (or beyond what was agreed) constituted conversion.

Holding: The Florida court held that whether conversion occurs depends on the particular facts, e.g. whether the renter asserted dominion inconsistent with the owner’s rights, etc. 

Other related legal maneuvers:

Nationwide Rental Car Theft Scheme

• Case Summary: Eight individuals were indicted for a nationwide scheme involving the theft of 19 rental cars valued at approximately $1.1 million. The operation targeted high-end vehicles across the United States.

• Outcome: All eight defendants pleaded guilty to various charges, including wire fraud and identity theft. Sentencing dates were scheduled between December 2024 and February 2025.

• Citation: U.S. Department of Justice, "Eight Plead Guilty, Admit Nationwide Rental Car Theft Scheme" (November 14, 2024).

2. El Paso Rental Car Theft Ring

• Case Summary: In December 2024, authorities in El Paso, Texas, apprehended individuals involved in the theft of 20 vehicles from a rental company. The stolen vehicles were tracked to locations in Juarez, Mexico.

• Outcome: Several suspects were arrested, and multiple stolen vehicles were recovered. Investigations continued into the broader network involved in the thefts.

• Citation: City of El Paso Police Department, "20 Cars Stolen From Rental Company" (December 11, 2024).

3. California Assembly Bill 1197

• Legislative Update: In July 2025, California enacted Assembly Bill 1197, which allows rental car companies to use electronic surveillance technology to locate stolen, abandoned, or missing rental vehicles under specific conditions.

• Relevance: This legislation addresses the issue of un-returned rental vehicles by enabling rental companies to track and recover vehicles more efficiently.

What all this means is that if you're thinking of stealing a rental car, the government is gunning for you.

So, while you think you're in the clear and that no one is gonna catch you, you're going to get caught and you're going to be spending time in jail if you think stealing a rental was an easy snatch and grab.

 

 

 

Double dipping

Today's tale is a story of greed.

Once upon a time X lived a happy life - until he got a girlfriend.  Girlfriend was needy.  Very needy.  So needy, in fact, that X found that he was unable to pay basic bills.  But love does strange things to people, so X sought to get a loan from a friend Y.  Friend Y was a lawyer and knew better than to loan money to X without a contract. X signed on the dotted line and continued to satiate girlfriends needs.

Months passed and when the contract between X and Y came due, X (to no one's surprise) had not the money to pay Y.  X, it seems, had another friend (Z) who (after much discussion and promises) agreed to pay Y the money X owed.  So, to recap, X and Y had a contract.  X didn't have the money to pay Y so X got Z to stand in his stead as debtor.  This is called a surety contract and Y agreed to accept Z as the surety.  In fact, Z insisted Y create a new contract indicating the above facts.

This is where things got dicey.  See, after Z paid off X's debt to Y, Y decided to go after X for the original debt (attorney, and all).  X cried foul and to the law library he went (after Y filed a lawsuit against him for monies owed on the original contract.  Yeah, really sucks to be X.

While all the names have been changed to protect the innocent, the fact remained that Y was being a royal jerk.  I suggested X take a look at:

• California Affirmative Defenses (TR; Vol. 2, Chp. 67 (Exoneration of a Surety)
• California Forms of Pleading and Practice (Lexis; Vol. 13, Chp. 140)
• California Law of Contracts (CEB)
• Williston on Contracts (TR)
• Witkin Summary of California Law (TR; Vol. 1)
• Working with Contracts: what law school didn't teach you (PLI)

I also suggested that he file a complaint with the State Bar against Y (because, lawyer?!). While I suspect the Bar won't do anything, at least they'll be a paper trail against the guy that X can show to the judge (you know, when X makes Y look like a total tool in court for double dipping).

This is the guy you want on your team

As a law Librarian, I deal in problems and am a purveyor of solutions.  If you've got a problem, I know where you can go to solve it.  

Small claims? I know four resources that can help you. Bankruptcy?  Pick your chapter and I've got answers. RICO, unlawful detainer, criminal, appeals (civil OR criminal), military justice, estate planning, family law, tax, federal, UCC, real property (commercial or otherwise), contracts, personal injury.  Whatever you need, answers I've got.

So, the other day, a newly minted attorney came into my law library hoping I was all I was hyped up to be.  Turns out he had just accepted a rather messy case.  I mean, it was one of those cases that if he won, it would put him on the map.  If he lost, well....

So, being newly minted and not knowing the ways of the legal world, I introduced him to the world of Continuing Education of the Bar (CEB) and showed him all the great things they offered like:

• California Civil Discovery Practice (CEB)
• California Civil Procedure Before Trial (CEB)
• California Civil Procedure During Trial (CEB)
• Jefferson's California Evidence Benchbook (CEB)
• California Expert Witness Guide (CEB)
• Effective Direct and Cross-Examination (CEB)
• California Trial Objections (CEB)

Then I suggested newly minted take a look at the myriad of case and trial prep materials, like

• California Forms of Pleading and Practice (Lexis; covers most all things from initial pleadings through appeals)
• Bender's Forms of Discovery (Lexis: hundreds of special interrogatories)
• Am Jur Trials (TR; to know what questions to ask witnesses in trial)
• Am Jur Proof of Facts (TR; to know how to introduce evidence in trial)
• Trial Practice Series: Examination of Witnesses (TR)
• McElhaney's Trial Notebook (ABA)
• Trial Practice Series: Questioning Techniques and Tactics (TR)
• Trying Cases to Win: Summation (TR)

Then I suggested he take a look at some of foundational resources like

• American Jurisprudence, 2d (TR)
• Restatement 2d (TR)
• Corpus Juris Secundum (TR)
• California Jurisprudence, 3d (TR)
• Summary of California Law, 10th (TR)

Finally, I suggested he take a look at resources that would help when he won his case, like:

• California Practice Guide: Enforcing Judgments and Debts (TR)
• Debt Collection Practice in California (CEB)
• How to Collect when you Win a Lawsuit (Nolo Press)

and off newly minted attorney went with a gleam in his eye and an understanding that if ever he needed answers, his local county law library (and, by association, his local county law Librarian) was the place to be.

Bait and Switch

The wife's birthday is coming up and I'm thinking that maybe we head off to Las Vegas to take in a show, have a fun buffet dinner, do a little sightseeing, some nookie...  It's all good.

So, I'm logging onto the website to book a room.  I find a FANTASTIC deal at a posh resort.  I click accept, accept, accept, got to the page that added all the fees annnnnnnnnnnd when I found out that with the added fees and taxes that the fantastic deal at the posh resort wasn't as fantastic as I thought.  In fact, the added fees darn near doubled the initial price.

Yeah, thanks but no thanks.  Dang but I don't know how Vegas stays in business what with all the bait and switches going on.

Imagine if something like this happened in the legal realm.  Take, for example, the lawyer who came into my library the other day.  He had been working to settle a long standing breach of contract case.  

Opposing counsel had originally sent an offer of settlement, lawyer countered with his own proposal and after weeks of negotiations they finally arrived at a figure their clients could both live with.  All that was left was drafting the language in the settlement agreement.

Months of negotiation later and lawyer and opposing counsel were still struggling to get the best language (for their client) in the agreement.  Lawyer would draft an agreement, opposing would oppose and counter with something else.  Back and forth, forth and back.

FINALLY, lawyer and opposing arrive at a final document.  Lawyer shoots off the final agreement to opposing counsel.  Opposing counsel gets his client to sign and date and he sends the signed agreement to lawyer for his client's signature and date.  

Just before lawyer's client signs, lawyer looks through the agreement one last time and notices that opposing counsel unilaterally changed a key provision in the agreement (making the agreement not so much agreeable as it now favored opposing's client in a big way).

Lawyer is livid.  He shot off a "professional" email to opposing counsel stating that they are now opting to go through binding arbitration and lawyer is now wanting information on the how of alternative dispute resolution.

Man, that really sucks!  Reminds me of the time I was offered a great deal in Vegas and then found that that great deal wasn't so great after all.  Well, with lawyer standing in front of me, I suggest he take a look at:

• A Litigator's Guide to Effective Use of ADR in California (CEB)
• California Practice Guide: Alternative Dispute Resolution (TR)
• California Arbitration and Mediation Practice Guide (LawPress)
• Proof of Facts (TR; 25 POF2d 333 (Good Faith Bargaining))

and off lawyer went to plan his revenge, er...case.

Have you ever been double-crossed and are so mad you can't see straight?  Well, head straight on over to your local county law library and we'll help you see the light at the end of the tunnel.

Dear Santa

Years ago, I remember my mom demanding that we kids write letters to Santa.  We'd rummage through the Sears catalogs searching for toys that we'd never get.  I mean, we'd write down whole pages and never see any of it.  Got great stuff every Christmas, great memories of Christmas morning, but nothing I ever asked for.

I don't know what it was with Santa but I can't remember a single thing I asked for that I ever got - until I got a credit card.  Things changed after that.  Oh, yeah - Nerf, here I come.  After a while, though, I learned that while having a credit card was all fun and games, you had to pay off the balance - eventually.  What with December being the month of debt, I can already see the line of people coming into my law library with legal problems.

Take, for instance, the couple that came in just the other day.  Now that was a couple that understood the power of a credit card!  They had 23 credit cards between them for a combined total debt of $438,201.32 (for which they were now being sued).  So, couple, standing in front of me tells me they're being sued for money had and received. This is a common law count that credit card companies use all the time to get their money.  Basically, the complaint says 

• You asked for a credit card, 
• We gave you a credit limit (i.e. virtual money), 
• You bought a lot of stuff on credit (i.e. a loan), 
• We now want our money (plus all that interest that has been built-up over time)

So, now, couple is in front of me, their local county law Librarian, trying to find a way to have their cake and eat it too (i.e. get out of having to pay for their spending sprees). I noted that they might have a hard time with that but suggested they take a look at:

• California Affirmative Defenses (TR, Vol. 2, Chp. 59)
• Williston on Contacts (TR)
• Norton Bankruptcy Law and Practice (TR)

and off they went crafting their strategies.  Yep, they were in for a long haul but good thing they knew better than to rely on Google for their legal research efforts.  Good thing they knew that utilizing the mad legal research skills possessed by their local county law Librarian was their best chance at having a merry ho, ho, ho.

And to all, a good night.

Word of the Month for December 2017: Common Counts

Recently, I have noticed a rash of lawsuits by corporations who issue credit cards.  Most all of these actions are pled under the common count claim of money had and received. Wait, before we get too deep into this, what is a "common count, anyway?" According to Black's Law Dictionary, COMMON COUNTS means:

In a plaintiff's pleading, in an action for debt. Boilerplate language that is not founded on the circumstances of an individual case but is intended to guard against a possible variance and to enable the plaintiff to take advantage of any ground of liability that the proof may disclose.  In the action for indebtiatus assumpsit, the common count states that the defendant had failed to pay a debt as promised.

The thing is that as far as COMMON COUNTS go, there are five separate COMMON COUNTS. They are:

1. For money had and received (popular with credit card companies)
2. For work, labor, services, and materials rendered and requested by defendant (works like a mechanics' lien)
3. For goods and merchandise sold and delivered to defendant for which defendant promised to pay plaintiff
4. For money lent by the plaintiff to defendant at defendant's request (i.e. not a gift)
5. For money paid, laid out, and expended for defendant at defendant's request (similar to a novation)

Our story today revolves around the 4th one: for money lent by the plaintiff to defendant at defendant's request.  See, once upon a time, an older man came into our law library. Seems older man had a sizable sum of money to his son-in-law at the behest of son-in-law and his deadbeat daughter. 

NOTE: that's LENT as in it was not a gift.  Older man, much to the chagrin of deadbeat daughter, had son-in-law sign on the dotted line that he would repay the full sum by a date certain. Son-in-law failed to pay by that date and, again against deadbeat daughter's wishes, Older man came to the law library seeking help as to what he could do to recover his monies LENT.

Thing is, Older man was right to come to the law library instead of pecking around the Internet trying to find something to help him because in less time than it took me to write this sentence, I was able to lead Older man over to

• Shipman on Common Law Pleading (TR)
• Handbook on Common Law Pleading (TR)
• Yankwich on Pleading and Practice (O.W. Smith, Law Book Seller)
• A Handbook of California Pleading and Practice (TR)
• California Forms of Pleading and Practice (Lexis; Vol. 12, Chp. 121)

and off Older man went plotting his revenge,...uh, I mean case.  

Yep, we've got a whole lot of stuff on our law library shelves to help give you peace of mind (or nightmares, as the case may be).  Why not head on over to your local county law library and see what it can do for you?

No pain, no gain

Have you ever wondered why Hitler had that funky little mustache?  I was wondering that today as I started shaving.  See, I was sick for a couple days and hadn't shaved.  When that happens, the hairs on my face grow a bit long and since I'm too cheep to buy a new razor, it can really hurt when I start to shave my chinny chin chin.

So, picture it, Hitler comes in from days on the front line and starts to shave.  I can imagine the pain he's feeling having to shave with a knife or an old Schick blade.  OUCH!  Then he gets to that part just under the nose annnnnnnnd says "der Teufel mit diesem Mist, Ich werde es einfach herauswachsen lassen!"  And thus was born the funky little mustache we all know and love.

Of course, this got me thinking about all the painful/scary things people do (or choose not to do) in law.  Like not responding to a complaint when they get served process (i.e. notice that you are being sued).  As painful and scary as anything legal is, I know if I were served a summons and complaint that I would at least take a few minutes to read that opening announcement on the front of the summons, to wit:

NOTICE!  you have been sued. The court may decide against you without your being heard unless you respond within 30 days.  Read the information below.  You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff.  A letter or phone call will not protect you.  Your written response must be in proper legal form if you want the court to hear your case.  There may be a court form that you can use for your response.  You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you.

While the the notice painfully goes on and on and on, there are a few things of import right up top that should be pointed out, like:

1. What does "The court may decide against you without your being heard unless you respond within 30 days" mean? Actually, there are two issues here.  First, if you don't respond to the complaint (see #2, below), court may enter a default against you if the filing party (i.e. plaintiff) filed a Request for Entry of Default with the court (before you file your response (again, see #2, below).  As to the second part, "respond within 30 days," this means that you have, count them, 30 days from the day you were served to file a response.  Not 31, not 3,001.  Thirty.  If you go to your local county law library and say I was served this notice 31 days ago, can I still file a response?  We will direct you over to California Code of Civil Procedure § 412.20 to help you answer that question.


2. What does "file a written response at this court and have a copy served on the plaintiff" mean? There are a number of ways to respond to a complaint. You could file a General Denial using form PLD-050.  If you were sued for Breach of Contract, you could respond using form PLD-C-010.  If you were sued for a Personal Injury matter, you could use form PLD-PI-003.  If you were sued for Unlawful Deteiner you could use form UD-105.  Of course, for each type of action, you're going to also want to explore and declare any related Affirmative Defenses.  Other ways to respond to a complaint might include filing a Counterclaim, a Demurrer, a Motion to Strike, a Motion to Dismiss, or maybe even a Motion for Summary Judgement.  Most probably.  Can't be absolutely sure.  You might want to talk to an attorney to be 100% sure.  After you draft your response, you need to file the originals with the court AND deliver a copy of your response on the plaintiff.


3. What does "A letter or phone call will not protect you" mean? It means that IF instead of filing a response you called or sent a letter to the person suing you and asked that they not sue you and you think that that's the end of things, it's not and you are still on the hook (because the plaintiff still wants their money). Even if the plaintiff were to say, "Sure, I won't sue you," don't believe it because they'll say anything to keep you from protecting yourself (like by filing a response).


4. What does "Your written response must be in proper legal form" mean?  It means that you must format legal documents based on the rules of court.  In California, those rules can be found in California Rules of Court 2.100 et seq.  If you are reading this and are in a state other than California, then Google your rules of court by typing: "[state name] rules of court pleading format" (without the quotes).


5. What does "There may be a court form that you can use for your response" mean?  It means that Californians do love their litigation.  So much so that the Judicial Council of California created cheat sheets based on the California codes to help people do all things legal.  Whether you're filing a lawsuit, a motion, an appeal, an injunction, or just changing your name, the Judicial Council forms help people quickly deal with many (but not all) legal issues.  Just check the box or fill-in a blank and you're on your way.  If you're not in California, you'll probably have to create your own form using codes and the Rules of Court for your state or jurisdiction (see #4, above).


6. What does "You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you" mean?  It means if you go to the website, you have a 50/50 chance of finding something.  If you go to the courthouse, they may give you some suggestions but they will NOT give you any forms.  If, however, you go to your county law library, the Librarians will scramble over themselves to help you find whatever it is you are looking for.  We can't tell you want to do with it, but we can help you find resources that can.

So, how painful was all that?  Yeah, a bit scary, but everything new is scary. The thing to remember is that you can figure all this out on your own. 

Of course, if you want to alleviate some of your angst and know that you're getting pointed in the right direction, you can always just hit up your local county law Librarian to help you find resources to help answer your most pressing legal research questions.

Yeah, that's what I would do.

Word of the Month for December 2016: Confidentiality Agreement

Have you ever had a conversation with someone and in the middle they say, "Don't tell anyone but...." and they proceed to tell you something that they probably shouldn't have told you (or anyone, for that matter)?  I get that all the time.  "Don't tell anyone but...." is the relief valve installed to help people who can't keep a secret.  I suspect the person they heard it from told them the same thing.  Things I've been told as a librarian (but was told not to tell anyone include stories beginning with:

• Don't tell anyone, but I was just indicted for securities fraud
• Don't tell anyone, but I just filed for bankruptcy to get out paying for my car
• Don't tell anyone, but I'm having a sordid affair with the milkman
• Don't tell anyone, but I served time for violation of California Penal Code 288.7
• Don't tell anyone, but I killed my neighbor's avocado trees with polyphagous shot hole borer beetles

Great stories all but maybe not something people you want floating out in la la land for anyone you hear.

Really, if I'm not supposed to tell anyone, why are you telling me?!  Of course, this all brings us to our word of the month: CONFIDENTIALITY AGREEMENT.  According to Black's Law Dictionary, a CONFIDENTIALITY AGREEMENT is:

a promise not to disclose trade secrets or other proprietary information learned in the course of the parties' relationship.  Confidentiality agreements are often required as a condition of employment. Also termed nondisclosure agreement.

So, let's see how this works.  Say you (the plaintiff) just won a settlement.  The other side (the defendant) doesn't want everyone to know 1) that they lost or 2) how much they are having to pay you.  Of course, this reminds me of the Snay case where dad told daughter about his settlement and daughter bragged on Facebook - resulting in dad having to give all the money back because dad breached the agreement (i.e. he told someone about the settlement).  Settlement agreements can be simple, like:

The Parties agree to keep the terms of this agreement confidential. For the purpose of this agreement, “confidential” means that the facts and issues of the underlying complaint and the existence and terms of this agreement shall not be disseminated, discussed, or commented upon to anyone not having a need to know in order to implement the terms of the agreement.

 Or agreements can be complex involving pages and pages of legalese.

Maybe you're in need of nondisclosure agreement?  If so, head over to your local county law library and take a look at:

• 101 Law Forms for Personal Use (Nolo Press)
• AmJur Legal Forms 2d (Thomson Reuters)
• Government Contracts: law, administration, and procedure (Lexis)
• Milgrim on Trade Secrets (Lexis)
• Norton Bankruptcy Law and Practice 3d (Thomson Reuters)
• Fletcher Corporation Forms Annotated (Thomson Reuters)

Yep, there's a whole lot going on that no one needs to know about.  So, if when next you have a secret that you really don't want to get out, you can either not tell anyone (heaven forbid) or get everyone you tell to sign a contract that they really won't tell anyone, but...

It Just Perpetuates Crime

How many times have you read cases where people pay premiums for years and then, when they look to collect on a policy, the insurance companies pull a fast one and deny the claim?  I see it all the time.

Funny, then, when I'm reading the paper about that couple who, back in December 2, 2015 attacked and murdered 14 people and injured 22 in San Bernardino resulting in in the single largest massacre on the west coast.  I'd like to say the entire United States but that freak who shot up the Florida nightclub a while back was apparently going for a record.

Anyway, as shocking as all this is, what is even more shocking is the fact that I read in today's paper that last week that a federal court is considering to allow insurance payments to the murder's family to the tune of $280,000. 

Seems Rafia Farook, the shooter, had taken out a couple of life insurance policies before going on his murderous rampage and his surviving family is looking to collect.  Because there is no express law against such payments and, in California anyway, insurance companies can be compelled to pay on policies that do not explicitly exclude payment because of criminal acts, 

Really?!  What this sounds like is a bunch of politicians who are really pushing an agenda and who really, REALLY want to ignore decisions handed down by the SCOTUS. Decisions like Burt v. Union Cent. Life Ins. Co,,187 U.S. 362, 47 L.Ed. 216 (9102) and Northwestern Mut. Life Ins. Co. v. McCue, 223 U.S. 234, 562 L.Ed. 149 (1912).  (see also Molloy v. John Handcock Life Ins. Co., 237 Mass. 181, 97 N.E. 2d 422 (1951).  

In Burt, the Court ruled that:

Public policy precluded recovery of benefits under a life insurance policy when the insured was executed as punishment for a crime...Public policy forbids the insertion in a contract of a condition which would tend to induce crime

Of course, the concept of "public policy" is not a new concept.  In fact, it's been around for at least a century or two.  The English Court of Chancery in Amicable Soc'y v. Bolland, 4 Bligh, N.S. 194 (1830) denied a similarly situated life insurance policy. noting that:

Suppose that in the policy itself...the party insuring had agreed to pay a sum of money year by year, upon condition that, in the event of his committing a felony,...his assignees shall receive a certain sum of money - is it possible that such a contract should be sustained?  it is not void upon the plainest principles of public policy?  Would not such a contract take away one of those restraints operating on the minds of men against commission of crimes? namely the interest we have in the welfare and prosperity of our conexions.

What is even more bothersome is that I keep running into people who think that just because the cases I cited are old, they have no validity.  HELLO, PEOPLE - old or not, they are the basis of the law on public policy and, as such, help to dial in on the issue at hand - which is, is paying on a life insurance policy where the person committed a felony against public policy?  Short answer, of course! 

Long answer, Who knows?  I mean, when people can't tell you who won the civil war but they can tell you who Brad Pitt has been married to, I suspect it depends on what public you're looking at.  In my public, it would be violative of public policy to award monies to a person's family after they had committed a felony (or any crime, for that matter, in which they had been killed or otherwise executed).  But that's my opinion and I'm entitled to it.

Word of the Month for June 2016: Usury

One of the reasons I went to law school was I was tired of seeing little people get beat-up.  OK, OK, I'm not completely all altruistic - I also saw it as a way to make a ton of money.  While it didn't work out that way, I'm still an advocate for the little guy.

For example, the other day, a young-ish lady came into the library.  Seems she had taken a loan for $5,000 for 80 months at the rate of 150%.  You heard right - one hundred and fifty percent interest on a $5,000 unsecured loan for 80 months.  Paid out over the entire 80 months, lady will have paid (on the initial loan of $5,000) about $630,000.  YIKES!

Of course, this all brings us to our word of the month: USURY.  Blacks Law Dictionary notes that:

historically, usury was the lending of money with interest. Today, it is the charging of an illegal rate of interest as a condition to lending money; an illegally high rate of interest

In lady's case, lady is looking at a couple of things.  First is this a "usurious" amount of interest?  It depends on the State you live in.  In California, for example, the maximum interest that can be charged is 10% - unless....you're dealing with California Financial Code section 22250 which exempts certain personal property loans of $5,000 or more from the 10% maximum rate. 

Uh huh.  While lady's loan may not be usurious, it might still be classified as unconscionable.  Black's Law Dictionary defines UNCONSCIONABLE as:

Having no conscience; affronting the sense of justice, decency, or reasonableness.  Shockingly unjust or unfair.

Certainly 150% is a shocking amount of interest to be charged. The problem here is that any adult is free to contract for anything.  As long as lady is aware of the consequences and lender didn't try to slip something funny past lady when she signed the contract, lady may (there's that word, again) be stuck.

In any event, as the dutiful law librarian that I am, I suggested lady take a gander at:

• Miche on Banks and Banking (Lexis)
• The Law of Bank Deposits, Collections and Credit Cards (Lexis)
• Consumer Banking and Payment Law (NCLC)
• Truth in Lending (ABA)
• Williston on Contracts (Thomson Reuters)

Yep, there are never any easy answers when it comes to law and legal stuff.  Good thing your local county law library is right around the corner to help you find what all you're looking for.

Let's shake on it

Remember back when you were a kid and you'd do the classic "pinkie swear" to get someone to do (or not do) something? Later, you got older and needed to make a more iron clad contract, people'd spit in their hands and "shake on it."  Kinda sick but I guess the spittle worked like a "glue" and made a stronger agreement.  I suspect there is a reason that these days contracts are dozens of pages long and cost thousands of dollars in legal fees just to get the verbiage just right.

Knowing how litigation works these days (i.e. post industrial age), this all seems twilight zone-ish when held up against a case I read the other day.  Seems once upon a time McDonalds owner, Ray A. Kroc, and Central Ice Cream Company of Chicago shook hands to seal an agreement that McDonald's would sell an ice cream cone called "Triple Ripple in its restaurants for 20 years.  Two (2) years later, McDonalds "broke" that agreement and, a few years later, Central went bankrupt. Subsequently, Central sued McDonalds and at trial, Central's attorney made a play for his client saying to the jurors, "put honor back in a handshake (it worked and Central won to the tune of $52 million)." 

I suspect there are some old-timers out there in blogland that think we should go back to a simpler time when shaking hands was good enough.  Problem is, business life is rarely that simple anymore and there are too many variables in business to say a handshake is "good enough."  

Fact is, contracts and contract law are getting more and more dicey all the time.  While neighborhood kids might be able to pull off a solid pinkie swear, I'm betting multinational corporations will want to have their attorneys check out most any agreement.  Yeah, most probably.  

In any event, Happy New Year, everyone and I'll see you in a week.

It's Gonna Be OK

Have you ever felt like the world was out to get you?  I mean, some days, it’s not worth even getting out of bed.  The other day I had a young lady come into the library who had just lost her job, her husband was threatening to leave, kids were sick, house payment due, in-laws on her back, credit shot all to heck and to top it off she finds she is getting sued for not paying on a credit card.  She was beyond the point of wanting to just scream at the top of her lungs. 

Good thing she was able to make it to the law library before she popped.  Quick as a wink, I guided her over to California Forms of Pleading and Practice (Lexis), showed her how to work the index (A-Z), and helped her find the chapter on  Contracts (specifically, how to respond to a complaint for breach of contract and common counts (because she was being sued for not paying on a credit card).  In no time at all, she was working her way to a more zen frame of mind and a resolution of at least one of her problems.

Maybe you have similar problems.  Maybe your neighbor’s dog tore your favorite pair of pants (while you were still wearing them).  Maybe your kid is being bullied at school or maybe your boss is just being a royal pain in the tuckus.  Whatever the reason(s), just know that the good folks at your local county law library are always there to help you solve (or resolve) your most pressing legal research problems.

Word of the Month for November 2015: Notary Public

Most times when people come into my library I am able to keep a poker face.  Most times.  Other times, the best I can do is stifle a snicker whilst listening to some of these reference questions.  Such was the case when a person of interest came into our library.

Seems person of interest had a neighbor who needed to borrow some money.  Seems person of interest was a little suspicious of neighbor and insisted that the note/contract be notarized.  Seems person of interest only knew about notaries because they had heard the term on NCIS and it sounded important.  So, person of interest got a family member (not an official notary) to witness the contract between person of interest and neighbor. Months later when the note was due and owing, neighbor claims person in interest cannot enforce the contract because family member was not a notary and so the contract is "null and void."  Yeah, I didn't understand that logic, either.  I just blog about these things.

Anyway, all of this brings us to our word of the month: NOTARY PUBLIC.  According to Black's Law Dictionary, a NOTARY PUBLIC is a person authorized by a state to administer oaths, certify documents, attest to the authenticity of signatures, and perform official acts in commercial matters, such as protesting negotiable instruments.  The problem in this case is that family member was an ordinary, average person - not someone authorized by the state to "notorize" the note.  As such, family member's signature was just as good as anyone elses (i.e. not much).

So, person was presented with two problems.  First, what is a notary and, second, is the contract still enforceable?

As to the first issue (what is a notary), I suggested person in interest take a look at:

• Anderson's Manual for Notaries Public (Anderson Pub)
• Notary Law & Practice: cases & materials (NNA)
• Notary Public Handbook (SOS)

As to the second issue (whether the contract between neighbor and person in interest was enforceable), I directed person to:

• Williston on Contacts (West)
• Writing Contracts: a distinct discipline (Carolina Press)
• American Jurisprudence 2d; vol. 17A (West)
• California Law of Contracts (CEB)

Soon enough, person in interest was hot on neighbor's trail devising their own version of swift justice.  If ever you find yourself in a bind and don't know what to do, just know that your friendly neighborhood law Librarian knows and knows where to point you to find what it is you don't know.  Yeah, we are that good.