Friday, January 22, 2010

Judge Hart's Rule: Don't Get Mad, Get Even

In my last entry I mentioned my Grand Uncle, the Hon. John M. Hart, also known as "Judge Hart" was once Commissioner of the Revenue for Roanoke City. (Oh, as of this post I haven't heard back on my letter). How he got elected is a story in itself.

Uncle John was Judge of the Hustings Court for Roanoke City (it's since become part of the Circuit Court), 'way back in the 1920's and early '30's. Check your history: this was during Prohibition, the "No alcoholic drinking" thing. So, in theory, anyone caught drinking or with liquor would be arrested.

So Uncle John had a lot of working stiffs ("Joe Lunchpail") show up in his court charged with having a pint or a fifth, or with drinking.  However, at the same time, the Elite of Roanoke (Doctors, Bankers, Businessmen and - of course - Lawyers) were happily drinking Franklin County's finest 'shine and if caught by police would simply be escorted home.

Not fair, huh? That's what Uncle John thought. So Joe ended up with the minimum fine and no jail. This caused the WCTU (Women's Christian Temperance Union) to dislike hizzoner.  They called him "Soft on Drinking".  The irony here is that Judge Hart was a Tee-Totaler -- never touched a drop of alcohol in his life. (We call him "The Sober Hart" in the family)

The then Commissioner of the Revenue's wife was big in the WCTU in Roanoke. So the then Commissioner of the Revenue was the leader in removing Uncle John from the bench by not reappointing him for another term. In Virginia the General Assembly selects judges; Uncle John lost by a very very few votes to Lindsay Almond.

A year or so later the Commissioner of the Revenue was up for re-election.  Yep, Uncle John ran against him and won.

Now THAT's 'Rossiferous'. Any wonder where I got it?

Tuesday, January 19, 2010

Taking on The Commissioner of the Revenue for Roanoke City . . .

I got a nastygram from The Commissioner of the Revenue for the City of Roanoke. Among the duties of that office is keeping track of who owns real estate so they can be taxed. I made a mistake in a deed -- the wrong tax map number was inserted  by accident; the rest of the deed was detailed and correct.  The Commissioner's office is refusing to transfer the tax records because of that error. They're wrong. Following is an adaptation of my letter (I removed identifing info and added stuff to clarify it for y'all)
First, I’ll admit to a scrivener’s error in the tax number in the top margin, first page, of a deed prepared by this office. I should have caught it; the closing agent should have caught it. I congratulate and respect The Commissioner of the Revenue's (COR) staff for their sharp eye.

However, there is no authority in the Code of Virginia preventing the COR from correctly assessing the property in the name of the purchaser when there is clearly a minor scrivener’s error. That offices’ failure to correctly assess “the person to whom the [real estate] is chargeable with taxes” as to any property under Virginia Code 58.1-3281, when a reading of the four corners of the deed would disclose such, could be misfeasance.

When I called the Commissioner's office, his staff referred to Virginia Code 17.1-252. That section (1) makes Circuit Court Clerks require a Parcel ID Number in those jurisdictions that use them (Roanoke City is one) and (2) allows the Clerk to use that number in an indexing system (The Roanoke City Circuit Court Clerk’s office does not have such a system). Nothing in that statute applies to the duties of The Commissioner of the Revenue, although compliance does, usually, make their job easier.

In this case, the body of the deed clearly identifies the property and its title history. It even identifies it as a re-subdivision of two lots with tax numbers (actually, conveyance of a strip of land from one lot to another). In the thousands of real estate titles I have personally searched, and the thousands of other title reports I have personally reviewed, a single error did not void the title when the bulk of the information distinctly identified the property.

In addition, this policy implies that an instrument must be recorded to effect a transfer of property to “the person to whom the same is chargeable with taxes”. That, in my family’s knowledge, has never been the case. My uncle, Judge John M. Hart, was The Commissioner of the Revenue at one time (How he got there is a Rossiferous story in itself!). I know of instances where a deed was delivered, accepted, but the buyer neglected or refused to record it; the property was nevertheless taxed to the buyer because the then Commissioner of the Revenue properly determined the buyer to be “chargeable with taxes”.  I also recall that, as Escheator, my father and I would provide a list of purchasers to the City so that they could be assessed the taxes coming due on the properties they bought.

Hopefully this will get cleared up so that the purchaser doesn't suffer because of the COR's office. I've talked to other attorneys who have had similar experiences; it'll be interesting to see what happens.

Wednesday, January 6, 2010

More Big Bank stupidity

Big Banks just don’t have sense.  Here’s a plug for the small, community based bank.

From a list-serv where I’m a member, (Virginia chapter, National Academy of Elder Law Attorneys) I picked up two stories illustrating the abject stupidity of big banks.

The first comes from my friend Ken Labowitz, a lawyer in Alexandria, VA.
  • Perhaps my attitude here is influenced by this afternoon's confrontation with SunTrust Bank.  I am co-guardian and co-conservator in a case with my colleague Anne ****.  The appointment is specifically written to say about six times that "either may act as Conservator".  With regard to drilling a safety deposit box, SunTrust is insisting that both of us be present.  No negotiation, no discussion possible, just both of us have to be present because SunTrust says so.
After Ken posted his story, another colleague responded:
  • I think there must be special secret laws about safety deposit boxes. Wachovia insisted that I could not access a box to which I had a key, I am the executor under the will, and I gave them the death certificate of the owner and a copy of my appointment.  They required that the agent under the decedent's POA come into the bank and authorize me to have access to the box!
(apparently Wachovia is too stupid to know that a power of attorney dies with the person who issued it.)

And finally, one of my own experiences and how I handled it.
  • I was appointed guardian/conservator for a lady with a house subject to a mortgage held by BB&T. The judge inserted a bunch of stuff in the order appointing me (if he'd been around in time of Moses he'd have taken a hammer & chisel to the 10 Commandments!).

  • BB&T did not have a deposit account for the person, instead that person  owed BB&T money. I inquired about the balance and payment status and presented my order and qualification papers so I could PAY BB&T.  The order was sent 'downtown' somewhere and the response came back "we need proof that the judge made all those changes before we give access". My response was quick, to the point, and effective:  "Other than you, who should I subpoena to Court so the Judge can verify this?"

  • I got the information.  Later I told hizzoner the story and he laughed.

In all these cases the banks were dealing with experienced lawyers with appropriate documentation and identification. But the banks substituted their stupidity for three separate court orders conferring legal authority on my colleagues (and me). Other than my ‘subpoena’ threat, I’ve had to threaten to write the various regulatory bodies with a formal complaint – and I made sure the flunky I was dealing with knew their name would be included – or legal action, or all of the above.  I’ve suggested that they go ahead and prepare a memorandum of events as their superiors and the home office legal department will want to know why they have to respond to my complaints.  So far they’ve blinked, but one of these days, probably soon,  .  .  . 

Local, Community based banks, are a whole lot easier to deal with.  Their front line people can think and (unlike those in big banks) are usually authorized to do so.  If there is something I think unreasonable, I easily get to someone up the chain; sometimes it’s not the bank’s fault, it’s the regulators stupidity that makes them do it. (Yes, another blog at another time) In the Roanoke area, from personal experience, I can recommend Stellar One and Valley Bank – good service and great people.

PS: full disclosure – I own stock in BB&T and Suntrust. Inherited it.