As more legal services clinics are co-located at social services agencies and schools, there are also greater opportunities for social workers and attorneys to collaborate to meet their client’s goals. While there are concerns raised with such collaborations, there are also tremendous benefits: for the client, the attorney and the social worker. January’s Tip of the Month focuses on the benefits of such collaborations and provides specific examples of when such collaborations are particularly helpful. This tip also identifies limitations and potential pitfalls of such collaborations and how they might be overcome. Read more >>
Effective August 1, 2014, the jurisdictional cap on the amount of a claim that can be filed in Conciliation Court is increasing from $10,000 to $15,000. The limit of $4,000, still applies to claims that involve a consumer credit transaction1. Whether or not this increase will result in more attorneys filing cases in Conciliation Court remains to be seen, but now is an appropriate time for any attorney thinking of practicing in Conciliation Court to brush up on some of the major differences between Conciliation Court and District Court. Perhaps most importantly, and something of which many attorneys may not be aware, is that Conciliation Court has its own unique set of practice rules, separate from District Court rules.
In 2012, there were 12.6 million new victims of identity theft in the United States—about 1 in 20 consumers. Anyone can be a victim, but certain groups are often more adversely affected because they have access to fewer resources with which to take action for protection. Individuals must be vigilant in opening their mail, keeping track of finances and monitoring their credit cards. Fifty percent of consumers found the fraud themselves by monitoring their bank statements, and credit scores instead of being notified of the fraud by a bank or card issuer. If a client seeking advice from you has been a victim of identity theft, there are four steps they should consider taking. Not all victims will need to take all four steps.
First, contact credit reporting agencies.
1. Obtain credit report Everyone is eligible to receive one free report from each of the three major credit reporting agencies once every 12 months by visiting www.annualcreditreport.com or calling (877) 322-8228. Instead of requesting all three reports at one time each year, space out requests every four months. Each report will have slightly different reporting information, so it’s important to request each report. The three major credit reporting agencies are:
a. Look for indicators of identity theft: accounts client didn’t open, activity on dormant accounts, erroneous personal information, or credit inquiries from companies client didn’t contact. b. Get fraudulent or inaccurate information removed by writing to both the credit bureaus and the credit issuers following the instructions provided in the credit report.
3. Place a fraud alert on credit reports by contacting one credit reporting agency, which will alert the other two. The fraud alert will ensure that the lender takes additional steps to verify that the client has authorized the additional credit line, credit limit etc.
a. There are two different types of fraud alert: initial, which is good for 90 days and renewable, and extended, which is good for 7 years. In order to qualify for an extended alert, client must have filed an identity theft report (see step three). A fraud alert can be canceled at any time. b. Consider a credit freeze, which prohibits the agencies from releasing credit reports or scores without consumer authorization.
Second, contact the fraud department of companies where the identity thief has committed fraud
1. Ask a fraud investigator to close the accounts that have been tampered with or opened fraudulently, and request a closure letter. 2. Ask for thief’s application and transaction records. 3. Send written dispute including an identity theft affidavit (see below). 4. If collection agencies are involved, contact them: request the amount of debt and the creditor’s contact information, and dispute the debt.
Third, file an identity theft report with the Federal Trade Commission
1. Submit a report using the FTC’s online form: https://www.ftccomplaintassistant.gov or by calling 1-877-438-4338. 2. Save the complaint reference number. 3. Whether the client submits a fraud report online or by phone an “Identity Theft Affidavit” will be created from the information provided.
a. If submitted online, print the Identity Theft Affidavit that will be available at the end of the report. b. If submitted over the phone, a representative will provide a password and email a link to print the affidavit.
Fourth, file a police report with local police department or with the police in the community where the identity theft took place
Minnesota law requires police to write reports for identity theft victims. (Minn. Stat. §609.527, subd. 5)
1. Request an appointment for an in-person report filing.
a. Bring to the appointment:
i. A copy of the FTC Identity Theft Affidavit ii. Any other proof of the theft iii. A government issued photo ID iv. Proof of address (lease agreement, utility bills, pay stubs)
2. Request a copy of the official police report. 3. Attach the Identity Theft Affidavit to the police report in order to create the “Identity Theft Report”. Keep a complete copy.
a. Request an extended alert on client’s credit report. b. The report can also help to get fraudulent information permanently removed from credit report and prevent a company from collecting a fraudulent debt.
When determining how to help clients sued by creditors in District Court, consider whether they are judgment proof, pre- or post-judgment, and have any meritorious defenses. The below chart provides suggestions from experienced volunteers for next steps. Also consider your client’s financial situation and debt load; if bankruptcy is an option, it could eliminate the need to fight multiple court battles or maintain permanent vigilance for garnishment notices. Read More>>
Starting September 1st 2012, e-Filing will be mandatory for many types of general civil cases in the Second and Fourth Judicial Districts. E-Filing is the filing of court documents through a computer based system. The system used in the Second and Fourth Judicial Districts is called Odyssey File & Serve (OFS). Attorney and government agencies must be registered in order to use the e-Filing system by the effective date. Volunteer attorneys working on housing or family cases will be required to e-File and e-Serve cases starting on this date. At this time, pro se parties will not be required to use the e-Filing system.
Before e-Filing and e-Serving, all attorneys are encouraged to complete training offered by court administration. At trainings, information will be provided regarding how to register for and use the OFS system. The Courts’ website lists available in-person and online trainings. This tip provides information about how the changes will affect attorneys representing VLN clients.
Access and Registration
In order to register for an account, see each district’s website. You will find information regarding trainings, registration, and frequently asked questions.
Direct questions about registration to the courts.
Each VLN volunteer will need to register through his or her firm or individually, but notthrough VLN. Each firm needs a firm administrator, who will be responsible for creating and managing the firm’s account. The firm administrator should attend e-File training with court administration. Once the firm administrator attends the training, he or she should go to the OFS website and select “register now” to begin the registration process.
In the OFS system, VLN clients should be treated the same as an attorney’s personal clients. VLN is not the firm for each volunteer when they are e-Filing a case on behalf of a VLN client. While VLN will have its own account, is solely for VLN staff attorneys.
Quick Notes The OFS system is not a case management system. It is the system that will be used by the Second and Fourth judicial districts to process court filings and service. For example, documents will only be viewable on OFS for 30 days. Attorneys should continue to maintain their own case management files.
Any document that is submitted through the OFS system will be reviewed by court administration before being forwarded to the assigned judicial officer. This process can take up to one business day. If there is an error in filing, such as filing the documents in the wrong case, not paying the filing fee, or filing in the wrong county or division, it will be rejected. For information regarding rejected filings, see the Courts’ website.
The Minnesota Rules of Civil Procedure and Minnesota General Rules of Practice have been amended to include e-File rules. A copy of the amended rules can be found at: http://www.mncourts.gov/Documents/0/Public/Clerks_Office/ADM108011- 05242012.pdf
E-Service will not replace personal service. The initial filing of the complaint will still need to be done via personal service. E-Service is to replace service by mail and facsimile on represented parties. See amended Rule of Civil Procedure Rule 5.02 (b).
E-Filing and e-Serving a document will not require an affidavit of service. The record of e-Service on the system shall constitute proof of service. See the Amendments to Minnesota General Rules of Practice Rule 7.
Fee waivers are still available for e-Filing documents.
o In the Fourth Judicial District, you must obtain an IFP order signed by the appropriate signing judge for civil and family cases, or by the housing referee or clerk for housing cases. You must then scan the IFP order, upload it to OFS, and submit it with your filing.
o In the Second Judicial District submit the IFP and proposed order with your filing through OFS. The court staff will present the IFP to a judicial officer for approval. If the IFP has been denied, the court staff will notify you.
As a volunteer attorney representing a VLN client, you will not need to use a credit card. Because you are representing the client on behalf of VLN, a volunteer attorney program based upon indigency, the client will likely qualify for a fee waiver. When OFS prompts you for payment, select the waiver account option, and submit the IFP order.
There are extra fees associated with e-Filing and e-Serving. Tyler Technologies, the provider of the OFS system, automatically assesses a $5 credit card convenience fee and a $3 e-Service fee. The $5 credit card convenience fee is only charged for documents that have a statutorily required filing fee. The $3 e-Service fee is charged anytime the e- Service function is used. A signed IFP order will waive these costs.
Address any questions regarding fees and fee waivers to court administration in the judicial district where you will be filing.
The Minnesota Judicial Branch has new forms for “Responding to a Civil Lawsuit” at www.mncourts.gov/Default.aspx?page=513&category=45. These forms may be useful to pro bono attorneys at brief advice clinics and for unbundled legal services. The forms include an Answer, Affidavit of Service, and Instructions. The instructions strongly advise pro se parties to get legal advice.
The Minnesota Court’s Self Help Center website includes additional materials explaining the civil lawsuit process at www.mncourts.gov/selfhelp under the Civil Actions topic. Included there is the booklet “What to Expect as a Self Represented Plaintiff or Defendant in a Civil Trial” covering the steps in a trial, settlement, burden of proof, evidence basics, and other topics.
Directing clients to these resources before or after a consultation may help prepare them for meeting with you, and reduce the time you spend explaining basic information.
Submitted by Susan Ledray, Fourth Judicial District Pro Se Services Manager
The mechanic’s lien statute attempts to create a reasonable compromise between two competing principles. On the one hand, contractors, subcontractors and suppliers who provide labor and material to a property owner should be compensated for the assistance they provide. On the other hand, a property owner who has already paid a contractor for labor and material, should not have to pay twice for the same goods and services.
In order to balance these two competing interests, the mechanic’s lien statute contains protections for both the suppliers of labor and materials and the property owners. The Minnesota Mechanic’s Lien Law generally is contained in Chapter 514 of the Minnesota Statutes. This discussion of mechanic’s lien law will start first with two lists of issues — one for claimants and one for those against whom claims are made. Then, a full discussion of mechanic’s lien law follows. More…
ADMINISTRATIVE REVIEW OF DRIVERS LICENSE REVOCATIONS – GENERAL
While the bulk of this tip is devoted to the situation of DWI and Implied Consent, the Department will conduct an informal administrative review on just about any license withdrawal if requested. See Minn. R. 7409.4600 (2005).
Don’t rely on the forms only. Instead, supplement the form with copies of the police reports, test results, peace officer certificate, the advisory form, and any other documents relevant to your issue. Supplement with affidavits, if necessary.
Don’t submit a “boiler-plate” form challenge to every possible issue available. Instead, focus on your main issue(s) and clearly identify the same in a cover letter to the Commissioner attached to your request.
Identify and attach controlling case law and/or statutes in your cover letter that clearly dispose of your issue(s). Be thorough, but be brief.
ADMINISTRATIVE REVIEW OF DRIVERS LICENSE REVOCATIONS AND LICENSE PLATE IMPOUNDMENTS UNDER MINNESOTA’S DWI/IMPLIED CONSENT LAW
Minn. Stat. § 169A.53, subd. 2(a) (license revocation) and Minn. Stat. § 169A.60, subd. 10(a) (plate impoundment) specifically limit the availability of judicial review over DWI/Implied Consent driver’s license revocations and plate impoundment orders to those petitions filed with the district court within 30 days after the date on which the Notice and Order for Revocation or Impoundment was received by the motorist. Timely filing and service of the petition for judicial review is jurisdictional. So, what do you do if your client misses the 30-day filing deadline and she has a solid issue for review?
Both Minn. Stat. § 169A.53, subd. 1 (license revocation) and Minn. Stat. § 169A.60, subd. 9 (plate impoundment) provide for administrative review of the license revocation or plate impoundment order at any time during the effective period of the revocation or impoundment.
See Id. However, once the revocation or impoundment period has been served and the license or plates have been reinstated, there is no further right to administrative review.
The request for administrative review must be in writing and include, at a minimum: 1) The person’s full name; 2) The person’s date of birth; 3) The person’s driver’s license number and/or license plate number; and 4) A written statement of the factual basis upon which the person seeks to have the revocation or plate impoundment rescinded.
Minn. R. 7503.1000, subp.2 (2005). The request for administrative review will be most quickly and efficiently processed if sent to the following address:
Commissioner of Public Safety Driver & Vehicle Services Division Driver Evaluation Unit 445 Minnesota Street, Suite 170 St. Paul, MN 55101-5170
Upon receipt of the request, the Commissioner or his designee reviews the reports on file and whatever evidence the licensee has provided. The statutes require the Commissioner to issue a written decision within 15 days of receipt of the request, but do not provide for any consequences if that statutory directive is not met. Moreover, because judicial review is already available under Minn. Stat. §§ 169A.53 and 169A.60, there is no provision for any district court or appellate review of the Commissioner’s decision. See Kleven v. Comm’r of Public Safety, 399 N.W.2d 153 (Minn. Ct. App. 1987) (the decision on administrative review is final and not subject to judicial review).
While many DWI practitioners discount the administrative review process as a “rubber stamp” of the Commissioner’s Order of Revocation or Impoundment, it is important to note that the Commissioner does not act as a trier of fact or otherwise resolve factual disputes when reviewing requests for administrative review. Unlike the availability of judicial review, administrative review is intended to provide a speedy and inexpensive means of correcting obvious administrative mistakes or clear legal error. Given the complexity of our DWI laws, law enforcement personnel do make mistakes when processing DWI suspects. For example, an officer may have neglected to offer a suspect an alternative test when the person refused to submit to a blood test. An officer may have issued a plate impoundment order based on the preliminary breath test (“PBT”) results, as opposed to the blood or urine test results which had not yet been analyzed. An officer may have neglected to properly certify the test failure or refusal to the Commissioner. Each of these limited examples of clear error or mistake do not require any resolution of disputed facts, are clear on the face of the police reports, and should result in a successful administrative rescission of the revocation or plate impoundment order if clearly identified in a request for administrative review.
It has been my experience over the years that the availability of administrative review has been under utilized by practitioners in the field. Remember, administrative review can be sought at any time during the period of revocation or impoundment, independent of any judicial review. It does not cost anything other than your hard work in preparing an effective written request for review.
Submitted by Jeffrey F. Lebowski, Assistant Attorney General Minnesota Attorney General’s Office Manager, Public Protection Section
This Tip provides instructions on how to collect a judgment against an individual in Hennepin County.
1. Confirm the client has a judgment upon which you can collect.
If the judgment is from conciliation court, “transcribe the judgment to District Court.” Go to Room 306 of City Hall to request a transcript of your judgment. Take this document to the Civil Intake counter on the skyway level of the Hennepin County Government Center (right across the street from City Hall). There, you will also need to complete an Affidavit of Identification of Judgment Debtor and file this at the Civil Intake counter with $30.00. Minn. Stat. §548.09. In about three weeks, you will receive notice that the client’s judgment has been recorded (“docketed”) in District Court.
A District Court judgment is public record and valid for ten years from the date it was first docketed. Minn. Stat. §550.01. A Hennepin County judgment automatically becomes a lien on the debtor’s Hennepin County abstract real property. (If the debtor’s property in Hennepin County is registered as Torrens property, you must obtain a certified copy of the judgment and file it with the County Recorder’s Office to become a lien. For more information, call 348- 3051.) If the debtor has property in other counties, you must docket the judgment in each county. (A judgment can be renewed after 10 years.)
2. Consider whether the client and the debtor may work out an agreement for paying the debt. If so, call and attempt to negotiate a payment arrangement. It may take several phone calls to accomplish something amenable to both parties. You may do this at the same time as following the below process.
3. Determine assets and income against which you may collect the debt.
Check phone books or internet to determine a home address and phone number.
If the debtor has written checks, you maybe able to locate the debtor’s bank. If you’re aware of their landlord or auto lender, you may subpoena copies of checks the debtor has written them.
Is the debtor working? Do you know where?
Request a copy of the debtor’s credit bureau report from an online company such as Accurint. Is there a car loan? Mortgage? What bank or institution? Other judgments? Employment indicators? What is the debtor’s overall financial snapshot?
If you need help locating assets, you may also do it through the court system after 30 days of the date of docketing as follows:
Request from the Civil Intake counter a Request for Order for Disclosure form. (An Order for Disclosure requires the debtor to send you a Financial Disclosure Statement with income and asset information within 16 days. The Order for Disclosure will also include a Summary of Exempt Property to inform the debtor what assets and income are not subject to collection. Minn. Stat. §550.011.
If the debtor does not send you the Financial Disclosure Statement within 16 days, you may file with the Civil Intake counter an Order to Show Cause ($5.00) to compel the debtor to appear at court to provide the required information. Minn.Stat. §550.011. This must be served upon the debtor prior to the hearing date (there is no requirement as to length of time). If the debtor doesn’t provide the required information to the court on or before the hearing, you may complete an Affidavit for Bench Warrant. (When the judge signs a bench warrant, it authorizes the sheriff to arrest the debtor and bring him to court. That judge will either keep the debtor in jail until the court hearing on your motion or will ask for a “bond” to assure his appearance at your hearing. If, after the bench warrant is signed, the debtor returns the required information, you must call 348-6736 to advise the court the debtor has now complied with the Order.)
4. When you know where the debtor banks or works, you may take the below enforcement actions:.
Go to Civil Intake counter to request that the court issue a Writ of Execution ($40). Minn. Stat. §550.04. This authorizes the Sheriff to go to the debtor’s employer or bank to collect the money owed. After you receive the Writ from the court, follow the instructions and take it to the Sheriff. (If you have questions for the Sheriff, call 348-3800). The Writ is valid for 180 days. If you don’t recover the amount you are owed, the Writ is returned to the court and another one may be issued.
You may also file a bank garnishment. Minn. Stat. Ch. 571. By certified mail, send the bank the garnishment paperwork (garnishment summons, disclosure and two exemption notices) and $15. Minn. Stat. §571.72. Also, not later than five days after service upon the bank, mail a copy of the garnishment paperwork to the last known mailing address of the debtor. Minn. Stat. §571.72. (Within two business days after receipt of the garnishment summons and exemption notices, the bank must also serve upon the debtor two copies of the exemption notice, by first class mail, to the last known address of the debtor. Minn. Stat. §571.913.) A bank garnishment requires the bank to hold any monies in all of the debtor’s bank accounts on the day the garnishment arrives. Once you receive a bank disclosure form back disclosing any monies, you can order a Writ of Execution ($40.00) to levy on those proceeds.
The debtor may claim that monies are exempt from garnishment by filing an Exemption Notice listing the assets and/or income not subject to collection. Minn. Stat. §571.913. If you disagree, you may file an Objections to Exemption Claim. Minn. Stat. §571.914. Unless the debtor files a Request for Hearing on Exemption Claim within 10 days, you may still collect upon that money. If the debtor files a Request for Hearing on Exemption Claim, a judge will schedule a hearing and determine what assets are collectible.
You may also file a wage garnishment. Minn. Stat. Ch. 571. Send the debtor a Garnishment Exemption Notice and Notice of Intent to Garnish Earnings (Minn. Stat. §571.924) at least ten days prior to the service of the garnishment summons on the employer. The debtor may file the Exemption Notice (see above note) and send a copy to the employer. Serve the employer by certified mail your garnishment paperwork (garnishment summons and earnings disclosure) and $15. Minn. Stat. §571.72. Also serve a copy of the garnishment paperwork by mail at the last known mailing address of the debtor not later than five days after the service is made upon the garnishee. Minn. Stat. §571.72. A wage garnishment is good for 70 days and the employer holds a portion of the debtor’s wages for that time period. Once you receive a wage disclosure form back disclosing any monies, you can order a Writ of Execution ($40) to levy on those proceeds.
Submitted by Heidi L. Staloch, Gurstel, Staloch & Chargo, P.A.
Filling in the blanks on the certificate of title form with details of the sale;
Signing the certificate; and
Mailing the report of sale to DVS within 10 days of the sale
Avoid problems by completing the sale and title transfer at Driver & Vehicle Services locations. The DVS agent can review the title for any liens or other restrictions on the title.
Sellers – complete the report of sale and sending it to DVS within 10 days of the sale to avoid liability.
If a seller gives a buyer the title and a buyer does not complete the transfer, the seller should immediately file a “Report of Sale” to DVS. For a link to an online form, click here. https://dutchelm.dps.state.mn.us/dvsinfo/mainframepublic.asp
HOW TO GET TITLE TO A VEHICLE PUT IN A BUYER’S NAME
When it’s not done properly at time of sale, two procedures exist to obtain an Order from the Court ordering the Commissioner of Public Safety to issue a title in the buyer’s name. The buyer can then take this Order to Driver & Vehicle Services, pay the title application fee and taxes and then obtain the title. The two procedures are detailed below.
Buyer does not have the title and is not listed as the record owner on DVS records.Note: The vehicle must not be abandoned, unauthorized or part of an estate (after the death of the owner).
Buyer does not have the title but is listed as record owner on DVS records, usually because s/he purchased plates or tabs.
Procedure to Follow and Forms Needed:
Notice of Motion, Motion and Affidavit for Order Directing Issuance of Title to a Motor Vehicle