Space Law!

Space.com's blog today has a post entitled "First Space Lawyer Graduates." The University of Mississipi School of Law has awarded it's first "Space Law" certificate. The school opened the "Center for Remote Sensing, Air and Space Law" in 1999, and publishes the "Journal of Space Law," and has its own blog. The press release seems to indicate that this program is the only one of its kind, but a quick Google search shows that at least three other law schools -- George Washington, Stanford and the University of Tennessee -- also offer courses in Space Law.

According to Wikipedia, "this field of the law is still in its infancy." It is not, however, merely a theoretical area of law. In fact, the U.N. maintains an "Office for Outer Space Affairs" in Vienna.

Last year, the Lunar Land Management Society became (I assume) the first environmental group dedicated to conserving land on the moon. Their website admits that "at the moment, lunar land is not a great concern for the majority of the world," but goes on to explain that "a large percentage of human problems, since the birth of civilization, has stemmed from land ownership." Most of the site is blank, including the "rules and regulations" page, but undoubtedly lunar land use will become a serious issue in the not too distant future. On the opposite end of the spectrum, a group called "The Planetary Institute," which claims to be affiliated with the U.N. (the group does not appear to be run by attorneys but, if nothing else, they do seem to have done their homework on the subject), is presently selling deeds for acreage on Mars and the Moon. Land on either costs $29.99 for the first five acres, and $19.99 for each additional acre.

Debit Cards and Overdraft Protection: The US Allows Banks To Steal 10 Billion Dollars Per Year From The Poor

In August, 2007, I reported on a lawsuit brought by the U.K. Office of Fair Trading (the equivalent of our Federal Trade Commission) to curb unfair overdraft fees. (You can read that entry here). I think, and I believe any reasonable person would agree, that the banking practice surrounding overdraft fees should be illegal. Of course, banks should not be required to give free loans, but the current practice is purposefully designed to take advantage of consumers who maintain low balances. Banks: (1) encourage debit card use; (2) set flat-rate overdraft fees which are often multiple times the amount of the actual overdraft transaction; (3) purposely do not offer a real-time account balance; (4) as a default, allow transactions to go through even after an account has overdrafted; and (5) account for the debits from your account by resequencing them each day from highest to lowest, thus maximizing any potential overdrafts.

There has been some academic and judicial commentary against these practices, but in general they have been sanctioned by the U.S. Government. Overdraft fees and "overdraft protection programs" became common in the 1980's, and early U.S. litigation treated them as what they were: loans. During the 1990's, however, the Federal Courts began interpreting the fees as something other than short-term loans, and refused to apply usury laws to them. In 2002, the Comptroller of Currency formally approved the practice of high-low sequencing, then, in 2003, in Beneficial National Bank v. Anderson, 539 U.S. 1 (2003), the Supreme Court held that the National Banking Act pre-empts state regulation of national banks (i.e. banks with an "N.A." after the name) and makes them subject only to the usury laws of their state of incorporation. The banks that were not already incorporated in Delaware or North Carolina (which have laws saying, basically, that banks can charge customers any fee they want), quickly did so.

The disturbing thing about abusive overdraft fees is that the fees, by definition, target the people who can least afford them. According to a recent study by the Center For Responsible Lending, U.S. Banks earn over 10 Billion Dollars each year from overdraft fees, 7.3 Billion of which is taken from individuals who are on the border of financial solvency. According to this same study, the average return on investment for the banks for debit card overdrafts is $2.17 for every dollar overdrawn. Even if it takes the consumer a full week to deposit overdrawn funds in the account (which is a generous estimate), the bank still earns an interest rate of over 6000% on a loan that the consumer probably never consented to and was wholly unaware of at the time. People may be willing to pay $3 for a coffee at Starbucks, but I doubt anyone would willingly do so knowing that they would also incur a $35 fee from their bank.

U.S. judicial and legislative cow-towing to banks has been so pervasive that banks are even trying, with success, to usurp social security benefits -- which have the strongest available protection against being siezed to pay debts -- on the pretense of overdraft fees. See Miller v. Bank of America, NT & SA, 144 Cal. App. 4th 1301, 51 Cal. Rptr. 3d 223(Cal. App. 1st Dist. 2006)(Note: this case is presently pending before the California Supreme Court). Banks also routinely partner with colleges, so as to have easier access to their most succeptable prey. (See USA Today Story regarding N.Y. Attorney General's Investigation, here).

But the government has woken up, and is stepping in to correct the injustice: just not in the US government. In April, an intermediate appellate Court in the U.K. ruled that the U.K. Office of Fair Trading can review overdraft fees for fairness. See the BBC Story here, and the judgment here. Some momentum has been building in the U.S. to incite similar action by our government. As reported by the Consumer Law and Policy Blog, Professor Andrew Rosberg recently drafted an article comparing US and UK regulation in this matter; as I mentioned in my earlier piece, there is an excellent article by a group led by Professor Aruna Apte entitled "The Impact of Check Sequencing on NSF (Not-Sufficient Funds) Fees," 34 Interfaces 97 (March, 2004); and the Center for Responsible Lending offers a variety of terrific research on the issue. This momentum, however, is mere grumbling compared to the political clout of national banks, which are now quickly being purchased by credit card companies, such as Capital One and MBNA, with a proven track record for taking advantage of consumers whenever possible.

If you would like more information, please see my other related posts:

* February 8, 2009, "Potential Tide-Turning Victory In The Battle Against Illegal Overdraft And Non-Sufficient Fund Fees: Bank Of America Settles Closson Class Action."

* June 27, 2008, "Week In Review," (the Federal Reserve is now considering a rule to curb abusive overdraft fees by banks).

* May 7, 2008, "Debit Cards and Overdraft Protection: The US Allows Banks To Steal 10 Billion Dollars Per Year From The Poor."

* August 31, 2007, "The UK Takes Steps to Curb Illegal Overdraft Fees, But US Efforts Have Not Been So Well Received."

Also, consider the following outside sources:

* The Washington Post, Bailout recipients also major lobbyistsashington Post Article, (1/23/2009)

* USA Today, FDIC: Bank overdraft fees hit young, low-income customers, (12/3/2008)(Overdraft fees are boosting banks' profits at the expense of consumers, especially young and low-income people, finds a new Federal Deposit Insurance Corp. study.")

* USA Today, Banks raise penalty fees for customers' overdrafts (6/18/08)

* USA Today, Good news in the works on overdraft charges, 6/3/08.

* USA Today, Banks' check-clearing policies could leave you with overdrafts, (11/19/2006)

* USA Today, Banks' check-clearing policies could leave you with overdrafts (11/20/06)

* Wikipedia, Overdraft

Notice of Entry and Notice of Appeal: A Boring Topic, With A Noble History

For the last 150 years, New York's courts have, for the most part, followed the same procedure for processing orders and judgments. When a judge issues an order, that order must then be "entered," i.e. filed with the county clerk. The county clerk keeps a minute book, which is essentially a ledger, and whenever anything is filed a notation is made in the book. The clerk's minutes are now usually entered twice: they are hand written and then typed into a computer system. If you go to the records room of most courthouses -- particularly older courthouses, like the Manhatten Supreme Court -- you will see clerk's minute books going back hundreds of years.

Entry is important for several reasons: judgments do not begin collecting interest until they are entered, and appeals cannot be taken from an order that was not entered. Often, there is a significant gap of time between when an order is issued and when it is entered. How long it takes depends on how quickly the judge sends the order to the county clerk, if they send it at all. Just because you were mailed a copy of the order does not necessarily mean it was entered, and in some instances the judge will leave it to the parties to enter the order with the county clerk.
It seems odd that you would receive a document from the court, but then have to re-file it with the court before it takes effect, but that is how it sometimes works.

Pursuant to C.P.L.R. 5513, to preserve an appellant's right to appeal, a notice of appeal must served and filed within thirty days after service upon the appellant of a notice of entry. In the Federal Courts and many other states, the time for noticing an appeal begins the moment an order is entered. New York State Court, however, adds the twist that a "notice of entry" must be served.

"To be effective the ‘Notice of Entry’ must strictly comply with CPLR 5513 and state exactly when and with whom the order or judgment was entered, and if it describes the judgment or order, the description must be accurate." Unique Marble & Granite Org. Corp. v. Hamil Stratten Props., LLC, 13 Misc. 3d 1239A, 831 N.Y.S.2d 357 (Queens County Sup. Ct. 2006) citing Reynolds v. Dustman, 1 N.Y.3d 559, 772 N.Y.S.2d 247 (2003)(service of an unstamped copy of the order, with a cover letter saying it had been filed with the clerk, did not constitute proper notice of entry).

Although modern litigation practice is often forgiving of minor mistakes, "strict practice must be pursued to limit the time to appeal," and thus a notice of entry must be accurate. Falker v. New York, W. S. & B. R. Co., 100 N.Y. 86, 2 N.E. 628 (1885). An incorrect date of entry is a material defect that renders a notice of entry void. Nagin v. Long Island Savings Bank, 94 A.D.2d 710, 462 N.Y.S.2d 69 (2d Dept 1983); Ping Lum v. YWCA, 136 A.D.2d 972, 525 N.Y.S.2d 82 (4th Dept. 1988).

There is, however, no formal requirement for how a notice of entry is formatted. A party can, for example, provide a stamped copy of the order and rely on the clerk's stamp to provide the material elements of "date of entry and the name of the clerk of the court where the order was entered." Norstar Bank v. Office Control Sys., 78 N.Y.2d 1110 (1991). See also Deygoo v. Eastern Abstract Corp., 204 A.D.2d 596; 612 N.Y.S.2d 415 (2d Dept. 1994)(the absence of an index number is not a material defect in a notice of entry).

This system of entering orders and noticing entry appears to have originated in the 1840's and 1850's, when the Field Code and New York's first Code of Procedure was drafted. (Google Books has a good selection of old civil procedure treatises). At common law, there were no interlocutory appeals. After a judgment was entered, the losing party could submit a "writ of error" to the appellate court, and had the opportunity to include "appeals" regarding interim orders (such as discovery orders) only when they filed their write of error. With the enactment of the Code of Procedure in 1849, the term "appeal" was used for both final and interlocutory orders. For lawsuits that were pending in 1849, they were given two years from entry of judgment within which to file their appeal.

For new lawsuits after 1849, the parties were given "thirty days from after written notice of the judgment or order shall have been given to the party appealing." In the commetary, the drafters explain that the time for appealing does not begin to run until after the order or judgment is entered. The language was somewhat ambiguous, but there were a few early cases that clarified the practice.

The procedure today is substantially the same as it was in the nineteenth century. (See Falker, Supra). The one notable exception is that the Code's language indicates that only the successful party could serve notice of entry, not the prospective appellant. Thus, someone who won summary judgment, for example, could delay an appeal by not serving notice of entry. In his 1899 Encyclopedia of Pleadings and Practice, William McKinney suggests that the proper procedure in such a situation is to move the lower court to compel the successful party to serve notice of entry. The C.P.L.R. corrected this problem, and allows for either party to serve notice of entry.

Note: The motion that precipitated this post was: Barbera v. Summit School, 2008 NYSlipOp 71932U (2d Dept., May 14, 2008)("motion... to dismiss the appeal as untimely taken is denied on the ground that the notice of entry was defected and the entry date of the order was incomplete").  I did not want to mention the case in the original post until the motion was finally decided.

RELATED POSTS:

* How To Argue An Appeal
* New York Motion Practice

Looking for a Long Island Attorney?  Call me at 631-482-9700, or email me at Skreppein@Qhmlaw.com.  

To Catch A Predator Catches A Lawsuit

One of my favorite areas of law is Constitutional Rights litigation, and I consider myself lucky to be responsible for a few such cases.

I came across this decision today, Conradt v. NBC Universal , that I thought I would share. Conradt was a retired district attorney in Texas who was caught on NBC's "To Catch A Predator," which is a reality television show that works with law enforcement to catch pedophiles. The show ordinarily has someone pose as a child on the internet, arrange a meeting, and then the pedophile shows up to find the police and an NBC camera crew.

Conradt, however, did not go to the house, and so -- according to the complaint -- NBC arranged with the police for him to be arrestaed by a SWAT team. The complaint alleges that the show purposely made a spectacle out of the arrest, and Contadt committed suicide as a result. Most of the causes of action were dismissed, but the court (the Southern District of New York, Judge Chin) allowed two to proceed against NBC: a cause of action for Intentional Infliction of Emotional Distress, and a cause of action for violating Conradt's civil rights under the 4th and 14th Amendments. One of the more interesting aspects of the decision is that NBC conceded that it was functioning as a state actor, thus allowing the Constitutional claim to go forward.