Friday, May 10, 2013
Without trying to jinx anything I thought I’d do a quick wrap up even though “it ain’t over ‘til it’s over”. Word is split around town as to whether the session is likely to end tomorrow; it seems to be trending against a Saturday adjournment. But here’s where the bills the VBA has been following are. As you know, H.431, the foreclosure mediation bill has been signed and is now Act 8. The new foreclosure process will begin December 1st . Because it will be an “opt in” process both the House and the Senate passed versions of the budget contain money for Home Ownership Centers (HOCs) to do outreach and counseling of homeowners. Also, Vermont Legal Aid is slated to receive $75,000 to be used in foreclosure defense. That money and the $125,000 to the HOCs came from a settlement reached by the AG with a loan processor, which paid the state $371,000.
Last night the House concurred with a proposal of amendment from the Senate on S. 31, the “Billings” bill. So that’s now on its way to the governor for signature. Here’s the language, effective July 1st:
An act relating to prohibiting a court from consideration of interests in
revocable trusts or wills when making a property settlement in a divorce
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 15 V.S.A. § 751 is amended to read:
§ 751. PROPERTY SETTLEMENT
* * *
(c)(1) Notwithstanding any provision of subsection (b) of this section to the
contrary, in making a property settlement the court shall not consider the
parties’ interests in revocable estate planning instruments, including interests
that pass at death by operation of law or by contract, unless the interest is
vested and not capable of modification or divestment.
(2) This subsection shall not apply to estate planning instruments
created by the parties of the divorce proceeding.
(3) A person shall not cause marital property to be placed in an estate
planning instrument for the purpose of excluding it from a property settlement.
A court may order a party to produce evidence related to an estate planning
instrument if it appears that marital property may be included in the
(4) A person who is not party to the divorce may be subjected to
discovery or compelled to testify on the subject of his or her own last will and
testament, on any revocable trust of which he or she is settlor or, in
conjunction with any of these instruments, on his or her assets if the court finds
that a party has fraudulently represented his or her opportunity to acquire
capital assets and income in the future.
(5) The court may impose all applicable sanctions, including an award
of attorney’s fees, upon finding that a party fraudulently represented his or her
opportunity to acquire capital assets and income in the future pursuant to this
Sec. 2. EFFECTIVE DATE
This act shall take effect on July 1, 2013.
Other bills we followed include S.7, which has been amended to include “bad faith claims of patent infringement”. That language (section 2 of the bill) was added in the House and the bill is on the Senate calendar today. However, the Senate has already added similar language to another bill (H.299) and sent it over to the House. In one vehicle or the other, that section will become law.
We followed S. 119, a bill that would establish a panel to rule on amending perpetual conservation easements. The bill took too much time moving through the process on the Senate side to allow the House to complete its work. As of right now the bill remains in the House Committee on Natural Resources and will be acted upon in 2014. The additions to the bill by the Senate, both a fee to seek an amendment and the appropriation for the panel members, necessitated stops in Senate Finance and Senate Appropriations, after having left Senate Natural and Senate Agriculture. The same steps need to be taken on the House side and, regardless of the date of adjournment, there is not enough time to do what needs to be done.
The lakeshore protection bill is spending the summer and fall in the Senate Natural Resources Committee as members felt that the public needed more opportunities to speak to it. Accordingly, they are scheduling public hearings throughout the state before retuning next year to complete work on the bill.
Other bills that moved from the House to the Senate but moved so late in the session that they will likely not see action are H.441, changing some provisions of UCIOA, and H. 483, revisions to UCC Article 9. Both bills are sitting in the Senate Rules Committee awaiting “being sprung”. I’m not sure that’s going to happen right away but, you never know!
Another bill of interest to many is H.523, a judiciary “omnibus bill”. It contains a number of provisions that would affect practitioners. It contains language about the availability of jury questionnaires. It modifies a minor provision on the UCCJEA. It addresses an issue that has arisen in family division. It would allow the court to require the payment of the full filing fee IF a stipulation is not acceptable to the court or if the matter becomes a contested matter. It also clears up the fee for filing motions in family division, making it clear that there is no fee for pre judgment motions. Recently, some units began requesting a fee while others believed the fee was for post judgment motions only.
But wait, there’s more. In fact, this bill began life as H. 1 and was maybe two paragraphs long. Well, now it covers creating a fee for a motion for expungement of a criminal record; amends the attorney licensing special fund; adds what was S.1, requiring courts to consider the financial costs of sentencing alternatives; added a completely new section on abused animals; adds language on automated license plate readers; creates a position of chief deputy states’ attorney in larger offices; adds immunity for volunteer athletic coaches; and finally, (at least I think that’s all there is) permits assistant judges to sit with magistrates during child support contempt proceedings! I know that many of you expressed concern about this and I’ve certainly shared your concerns. But here’s where we are. Very little of all this was in the House passed version. The bill won’t go back to the House until later today at the earliest. It’s very likely the bill will summer in the House Judiciary Committee. That’s both good and bad. There are some useful parts of bill that we want. But, I don’t see it passing with all this new language added.
Finally, although the budget conferees are continuing to meet, I am hoping that the small bump in Vermont Legal Aid funding that both the House and Senate passed versions contain will stay in the final agreement. If it does, it will be the first increase for VLA in about six years; that includes any COLAs. They’ve seen no change in their funding for all that time. Fingers crossed. VLA needs the bump given the Vermont Bar Foundation’s funding cut due to weak IOLTA receipts.
I’ll update as soon as there is anything new to report; but, as always, thanks for reading.
Wednesday, May 1, 2013
It’s been a busy few days since I weighed in here last. The “Billings” bill, S. 31, passed the House this morning with an amendment addressing spendthrift trusts. The House Judiciary Committee decided that the amendment really had no effect and let it go. The bill must now return to the Senate for either its concurrence or rejection and request for a committee of conference. We probably won’t know until next week what awaits the bill.
Yesterday and today were spent working on issues around federal pre-emption in cases of bad faith assertions of patent infringement and estate tax! The first is a pretty novel issue for the VBA to tackle but thanks to the good efforts of the VBA’s Intellectual Property Section and its Chair, Andrew Minitsky, the Section weighed in on its thoughts on S. 7. The bill then emerged from the House Commerce Committee and is now headed to House Judiciary for its review. I’m sure the VBA will be invited back to comment on the flaws that members of the Section noticed.
The estate tax provision and the apparent creation of a Vermont gift tax caught the attention of CPAs, members of our Probate and Trust and our Tax Law Sections and finally resulted in the passage of an amendment stripping three sections of the bill and creating a study committee to work out the details of what the Senate was trying to do in H. 528. Many thanks to Senators Ann Cummings and Peg Flory for their work on this amendment as well as to Paul Hanlon who met with both senators on Tuesday afternoon.
The Senate will be debating the budget this afternoon and tomorrow. after passage it returns to the House for conferees rto work out the differences in each version of the bill. The same holds true for the tax bill which passed earlier today.
As always, thanks for reading.
Tuesday, April 23, 2013
House Judiciary voted out the Billings bill, S. 31, unanimously today. It should appear on tomorrow's House Calendar under Notice; then it could be acted upon Thursday and Friday.
The Senate Appropriations Committee continues to plod through the budget bill in hopes of finishing it by tomorrow; I'm not sure if that's going to happen now.
The Senate Appropriations Committee continues to plod through the budget bill in hopes of finishing it by tomorrow; I'm not sure if that's going to happen now.
Monday, April 22, 2013
Although there has been little to report on our priorities in the last month we did see final passage of H. 431, the foreclosure mediation bill. Tomorrow I expect that the House Judiciary Committee will endorse its version of S. 31, the “Billings” bill. I’m pretty sure that we’ll see final passage this year although it is likely the Senate will initially refuse to concur and ask for a committee of conference. The bills are not too far apart. The House version has the support of all the parties that testified both for and against the bill as introduced. So things are pretty close to resolution. We’ll see.Right now the major items in the way of adjournment are taxes and the budget. we’re still hoping for the end of the session on Saturday May 11th. It could run into the following week. The Senate Appropriations Committee initially hoped to complete work on its version of the budget last Friday. Well, they missed that deadline and will probably take until Wednesday to finish its work. Again, we just wait and see.
Thanks for reading. I’ll let you know tomorrow if S. 31 comes out of committee.
Wednesday, March 27, 2013
So it’s been two weeks since I’ve updated this blog; my apologies. It’s not as though I wasn’t keeping track of what’s been happening though. After my last post I was out of town for the VBA Mid Year Meeting while the house and senate struggled to meet the crossover deadlines. Then, as happens every year, the week after crossover, both chambers’ calendars are full and more time is spent on the floor of each chamber than is spent in committee.
The bills I have been following most closely, S. 31 (“Billings”) and H.431, foreclosure mediation, have both crossed over and each judiciary committee has begun work on its bill. Yesterday, Susan Murray and Penny Benelli testified on S. 31. Tomorrow senate judiciary will start work on the mediation update; I am scheduled to testify along with a few others. I expect both bills to reach the governor’s desk before adjournment.
Today the joint assembly agreed to retain all the superior judges and the one magistrate that sought retention. Later today and for the remainder of the week actually, the house will be debating the tax bill and the appropriations bill. That’s. of course, after they finish work on the shore lands protection bill! Things should get back to normal next week after al lthis floor action! Let’s hope anyway.
Thanks for reading.
Wednesday, March 13, 2013
Last night the Judicial Retention Committee voted to recommend retention of all the superior judges. There was no vote on Magistrate Zander who the committee wants to visit with again on Thursday, March 21st as a follow up to the public hearing. There were no negative votes and only one member abstained on one judge with one member being absent. The votes, then were mostly 7-0-1 with one being 6-0-1 and one abstention. The joint assembly vote will be held on Thursday, March 28th at 10:30.
The House Judiciary Committee heard testimony on H. 431, the update to the foreclosure mediation process. The bill extends mediation to all foreclosures after the expiration of HAMP, set for December 31 of this year. This is set up as an “opt in” process, supported by increased outreach by home ownership centers. Of course this requires funding for those centers and the House Appropriations Committee is looking at options to provide that funding. One option is to use most of a $371,000 settlement award to the state from a loan processing company case pursued by the attorney general. One of the items on the table is some increased foreclosure defense funds going to Vermont Legal Aid; the other option does not include that piece. Although crossover is Friday, money committees are not required to have their work completed by then; they have until the end of the month.
There was a lot of work on three other bills that all affect property and should be of interest to the real estate bar. Those bills are S.119, the perpetual easement bill; H. 216, the energy efficiency bill, and H.223, the shoreland protection bill. All three are in one stage or another of being redrafted ; I’ll try to get up to date information later today. I’ll also try to post a report today before I leave for the VBA Mid Year Meeting at the Sheraton tomorrow and Friday. Thanks for checking in a reading this update.
Friday, March 1, 2013
I know, it’s been a week since I last posted here; sorry but there was a lot going on in the last week before the Town Meeting break. Of interest to you, of course, is the public hearing on the retention of the seven judges and one magistrate. Let me just say that one litigant from Orleans County had some negative comments about Judge Gerety and Magistrate Zander. She said that the judge needed more training on dealing with people with “hidden disabilities”. She maintained that he did not let her speak and only did so reluctantly after she objected, giving her only two minutes.
Attorney Doug DiSabito, a former judiciary employee in Grand Isle County, testified in favor of Judge Tomasi. He praised him for his vast knowledge of the law and a real insight into people. He said the judge’s findings a re well written and he is respectful of litigants and the lawyers.
Two witnesses spoke in favor of Magistrate Zander. They were Caledonia and Essex Superior Court Clerk Kathleen Pearl and former ADAP and current Washington County Deputy Sheriff Dick Powell. Dick Powell spoke to the difficulty in dealing with self represented litigants during an emotional hearing at a difficult time in their lives. Both witnesses spoke to her respect for the people appearing before her and her willingness to listen to both sides of the issue. Kathleen Pearl spoke to the other duties Magistrate Zander performs. She cited examples of working on internal issues in the courthouse, serving on committees, etc.
Finally Teri Corsones and Steve Dardeck testified in favor of the retention of Judge Cohen. Steve told the committee that Judge Cohen stands out in patience, courtesy, and willingness to listen and shows no gender bias to either litigants or lawyers. Teri echoed the comments about patience and spoke to his support of the “low bono” project in Rutland County. She referred to Judge Cohen as an “exemplary model of professionalism and cooperation”.
So, now the legislature takes a week off; when they return on Tuesday, March 12th, the retention committee will be meeting with Judge Cohen and Magistrate Zander. After that the committee will take its votes on whether to recommend retention of the each of the eight. The joint assembly vote is scheduled for Thursday, March 28th at 10:30.
Thanks for reading. Check back after March 12 for more updates.