martha e. hulley, ed. · martha hulley, laurie proctor, tricia amberly, and patti mccay, with the...

8
Family Law, p. 2 President’s Message, p.3 Criminal Corner, p. 5 Annual Meeting, p. 8 Fun (and Success!) in the Sun Joanna L. Faust On Thursday, June 16th, Virginia attorneys from around the Commonwealth gath- ered in Virginia Beach for the 73rd Annual Meeting of the Virginia State Bar. As usual, the Annual Meeting kicked off with the tra- ditional cocktail reception at the elegant and historic Cavalier on the Hill Hotel. The next day, it was time for the Young Lawyers Conference to shine. On Friday, the Annual Meeting began early with the YLC-sponsored “Run in the Sun” 5K Race up and down the Virginia Beach Boardwalk. For the third straight year, YLC attorney Thomas Kirui and his wife Ruth Kirui won as the top male and top female runners. Rounding out the top three, in the men’s category, Kevin Martingayle placed second, and Stefan Calos was third. In the women’s category, Amy Kelly finished second, and Erica Sartwell was third. After the Race, the focus of the Annual Meeting turned to the Showcase CLE, pre- sented by the YLC at the Cavalier Oceanfront Hotel. To increase participation at the Annual Meeting and to provide an interac- tive, fun CLE, this year the YLC presented an evidence CLE entitled “Judiciary Squares.” The CLE was a spin-off of the classic game show “Hollywood Squares.” Nine judges from around the Commonwealth, includ- ing Chief Justice Cynthia D. Kinser from the Supreme Court of Virginia, acted as the “squares.” The judges were posed evidence and ethics questions by the CLE moderator, the Honorable Stanley P. Klein (Ret.). The judges, who had been provided the answers in advance, then answered the question ei- ther correctly or incorrectly in an attempt to mislead the contestants. The contestants – Virginia attorneys who had been chosen from the audience – then stated whether the contestant agreed or disagreed with the judge’s answer. To allow the audience to participate, before revealing whether the contestant had answered correctly, Judge Klein polled the audience and asked attend- ees to hold up a green paper if they agreed with the judge’s answer or a red paper if they disagreed. The object of each “game” was to form a tic-tac-toe. The CLE was a great success for the YLC. Over 275 attendees crowded the Cavalier Ballroom, and a sea of red and green papers were held up after each question. The judges kept the crowd laughing with intentional “wrong” answers to the questions, while giv- ing insight to common evidentiary errors each judge had faced while on the bench. When the CLE concluded, the YLC held its annual Reception and Membership Meeting to install the new YLC Board Members for the 2011–2012 bar year. Incoming YLC President Christy Kiely addressed the mem- bership with her plans and goals for the year ahead. The annual Membership Meeting also provided an opportunity to honor those YLC members who contributed significant service to the Bar over the previous year. Patricia Amberly, Jennifer Haberlin, Martha Hulley, Patricia McCay, and Laurie Proctor all received Distinguished Service Awards for their work on the Annual Meeting CLE. Erin Hapgood received her award in recognition for her work with the Tidewater Minority Pre-Law Conference. An award was given to Lara Jacobs for her efforts with the Domestic Violence Safety Project & Mental Health Law Committee. Antoinette Morgan and Lakai Vinson received awards recognizing their Vol. 28 No. 1 Summer 2011 Martha E. Hulley, Ed. In this issue: continued on page 8

Upload: hoangduong

Post on 05-Dec-2018

217 views

Category:

Documents


0 download

TRANSCRIPT

Family Law, p. 2

President’s Message, p.3

Criminal Corner, p. 5

Annual Meeting, p. 8

Fun (and Success!) in the Sun Joanna L. Faust

On Thursday, June 16th, Virginia attorneys from around the Commonwealth gath-ered in Virginia Beach for the 73rd Annual Meeting of the Virginia State Bar. As usual, the Annual Meeting kicked off with the tra-ditional cocktail reception at the elegant and historic Cavalier on the Hill Hotel.

The next day, it was time for the Young Lawyers Conference to shine. On Friday, the Annual Meeting began early with the YLC-sponsored “Run in the Sun” 5K Race up and down the Virginia Beach Boardwalk. For the third straight year, YLC attorney Thomas Kirui and his wife Ruth Kirui won as the top male and top female runners. Rounding out the top three, in the men’s category, Kevin Martingayle placed second, and Stefan Calos was third. In the women’s category, Amy Kelly finished second, and Erica Sartwell was third.

After the Race, the focus of the Annual Meeting turned to the Showcase CLE, pre-sented by the YLC at the Cavalier Oceanfront Hotel. To increase participation at the Annual Meeting and to provide an interac-tive, fun CLE, this year the YLC presented an evidence CLE entitled “Judiciary Squares.” The CLE was a spin-off of the classic game show “Hollywood Squares.” Nine judges from around the Commonwealth, includ-ing Chief Justice Cynthia D. Kinser from the Supreme Court of Virginia, acted as the

“squares.” The judges were posed evidence and ethics questions by the CLE moderator, the Honorable Stanley P. Klein (Ret.). The judges, who had been provided the answers in advance, then answered the question ei-ther correctly or incorrectly in an attempt to mislead the contestants. The contestants

– Virginia attorneys who had been chosen

from the audience – then stated whether the contestant agreed or disagreed with the judge’s answer. To allow the audience to participate, before revealing whether the contestant had answered correctly, Judge Klein polled the audience and asked attend-ees to hold up a green paper if they agreed with the judge’s answer or a red paper if they disagreed. The object of each “game” was to form a tic-tac-toe.

The CLE was a great success for the YLC. Over 275 attendees crowded the Cavalier Ballroom, and a sea of red and green papers were held up after each question. The judges kept the crowd laughing with intentional

“wrong” answers to the questions, while giv-ing insight to common evidentiary errors each judge had faced while on the bench.

When the CLE concluded, the YLC held its annual Reception and Membership Meeting to install the new YLC Board Members for the 2011–2012 bar year. Incoming YLC President Christy Kiely addressed the mem-bership with her plans and goals for the year ahead. The annual Membership Meeting also provided an opportunity to honor those YLC members who contributed significant service to the Bar over the previous year.

Patricia Amberly, Jennifer Haberlin, Martha Hulley, Patricia McCay, and Laurie Proctor all received Distinguished Service Awards for their work on the Annual Meeting CLE. Erin Hapgood received her award in recognition for her work with the Tidewater Minority Pre-Law Conference. An award was given to Lara Jacobs for her efforts with the Domestic Violence Safety Project & Mental Health Law Committee. Antoinette Morgan and Lakai Vinson received awards recognizing their

Vol. 28 No. 1Summer 2011Martha E. Hulley, Ed.

In this issue:

continued on page 8

page 2 • Docket Call

Interrogatory Limit in Juvenile and Domestic Relations Cases

Family Law CornerAndrew R. Tank

It is fairly common for parents to have child custody and support actions pend-ing at the same time in Juvenile and Domestic Relations District Court. It is also common for the court to consolidate those actions for the purposes of trial.When that happens, do the custody and support actions become one in the same, or do they remain two separate actions? Why does this even matter?

One reason it matters is because Rule 4:8(g) of the Rules of the Supreme Court of Virginia provides that, “(n)o party shall serve upon any other party … more than thirty … interrogatories … without leave of court for good cause shown.” So after custody and support actions have been consolidated, can a party issue 30 interrogatories in the support case and an additional 30 in the custody case? Or are they limited to 30 combined?

As it turns out, I was confronted with this very situation earlier this year. Each party filed his and her own custody and support petitions and all matters were consolidated under one case number in

a scheduling order entered at the status hearing. Over several sets of discovery on support and custody, opposing counsel issued 45 total interrogatories. I object-ed to numbers 31-45 on the basis that they had exceeded the limit of thirty. Predictably, opposing counsel did not agree with my position and filed a mo-tion to compel with the court.

For someone with no solid authority to resolve the ambiguity in his client’s fa-vor, I was still pretty confident the judge would agree with me. First, the schedul-ing order, which also authorized mutual discovery, had only one case number on it. Therefore, if the custody and support cases were ever two separate actions for purposes of Va. Sup. Ct. R. 4:8(g), they were not after the scheduling order was entered. Second, even if they still were separate actions, why would a party need to ask more than 30 interrogatories when all that is at stake is custody and support? A divorce case can involve child custody and support, spousal support, equitable distribution of property, grounds for divorce, etc., and a party would still be

limited to 30 interrogatories. Why then would a party be entitled to ask 60 in-terrogatories just because the original petitions had different case numbers? Based on that logic, if parties were litigat-ing custody of four children, they would be able to issue 120 interrogatories, be-cause each child would be assigned a separate case number. Certainly no judge would make a ruling based on an inter-pretation that would suggest such an absurd result!

Now I must transition from being an over-confident know-it-all to a self-effacing humble young attorney. My objections were overruled. According to the judge it was not the case numbers that mattered, but rather the fact that each action arose under a different chapter of Title 20 of the Code of Virginia.

I conclude with a disclaimer that I hope is unnecessary. One of the difficulties of litigating in Juvenile and Domestic Relations District Court is that because it is not a court of record, there is rare-ly case law interpreting applicable rules and statutes. I am powerless to solve this problem and I do not attempt to do so with this article. Do not cite it in any court for any purpose! Take it as a lesson that if you find yourself in my situation, just answer the discovery.

Andrew R. Tank practices family law at Surovell Isaacs Petersen and Levy, PLC in Fairfax. He may be reached at [email protected].

The Docket Call congratulates

Young Lawyer of the Year Joanna L. Faust.

The 2011 R. Edwin Burnette, Jr. Young Lawyer of

the Year Award was presented to the Docket Call’s

Immediate Past Editor Joanna L. Faust of Fairfax,

pictured here with R. Edwin Burnette, Jr.

Summer 2011 • page 3

I was raised to be frugal. As a child, I brought home the paper bags that held my school lunches so they could be re-used the following day. Our family albums are replete with pictures of my brothers and me in matching outfits sewn by my mother. So it’s not par-ticularly surprising that I grew into a self-professed bargain shopper. I offer this background so you’ll know I speak with some authority when I say: I know a good deal when I see it.

In one of my first official acts as the new YLC President, I’m pleased to pro-vide my endorsement of one of the best values around: the YLC’s Professional Development Conference (“PDC”, for those in the know). And it’s available to you, as a YLC member.

The PDC is a daylong CLE geared specifi-cally towards young lawyers. This year’s timely theme is “Practical Tips for an Evolving Job Market.” In exchange for a few hours of your time and $80 dollars ($40 if you’re in government), you’ll re-ceive (i) practical, down-to-earth advice about how to practice law in this chal-lenging economy, (ii) six CLE hours, including two essential ethics credits, and (iii) networking time with fellow young lawyers around the state. That’s a good deal if ever I have seen one. Plus, unlike many CLEs (which, let’s be honest, can be as dry as Melba toast), the PDC

is actually enjoyable. The PDC Chairs, Richard Hartman and Jennifer Moccia, have chosen five sub-topics that speak to young lawyers, including an ethics seg-ment that uses Hollywood movie clips to present vignettes and provoke discussion.

Getting the most “bang for your buck” has never been more important than now. Law firms are feeling the squeeze like everyone else. Still, we have our an-nual MCLE requirement. Ask your boss to approve this expense (or dive into your own coffers, if you’re a solo) and I bet I’ll see you there. Mark your calen-dars for September 23rd and spend the day with us in Richmond.

Speaking of great CLEs, I would be remiss if I didn’t mention the recent “Judiciary Squares” program put on by a YLC com-mittee of Jennifer Haberlin, Joanna Faust, Martha Hulley, Laurie Proctor, Tricia

Amberly, and Patti McCay, with the assis-tance of the Honorable Stanley P. Klein. The YLC had the coveted “Showcase CLE” spot at the recent VSB Annual Meeting in Virginia Beach, and what a showcase it was. (See Joanna’s feature article for more details.) People are still telling me it was the best CLE they ever attended, and I agree.

The PDC and Showcase CLE are exam-ples of the great work being done by YLC volunteers. If you’d like to get involved in these or any of our other projects, please visit www.vayounglawyers.org, or contact me at [email protected], 804.788.8677.

Finally, before I end my first column of the year, I need to relay my apprecia-tion and admiration of my predecessor, Carson Sullivan. Carson was an incred-ible leader of the YLC, handling her myriad of responsibilities with a combi-nation of grace, humor and diplomacy that I can only hope to emulate. As I was reminded recently, watching my toddler stumble around the house in my hus-band’s sneakers, I have very big shoes to fill. From all of us, Carson: thank you.

Christy E. Kiely practices employment law at Hunton & Williams LLP in Richmond. She can be reached at [email protected].

President’s MessageChristy E. Kiely

Know a Good Bargain When You See It: The

Professional Development Conference

YLC Professional Development Conference

September 23, 20119:45 a.m. - 5:00 p.m.Hunton & Williams, LLP951 East Byrd Street20th Floor, Richmond

6.0 CLE Credit Hours (approval pending, including 2.0 Ethics Credits)

See VSB.org for more information and to register.

page 4 • Docket Call

Bankruptcy BulletsKhang V. Tran

The Automatic Stay

Welcome to the latest installment of Bankruptcy Bullets, a quick-reference guide intended to assist attorneys in nav-igating the sometimes intimidating and often confusing arena of bankruptcy law. This article provides a brief introduction to the automatic stay, a comprehensive provision of the Bankruptcy Code that non-bankruptcy practitioners will un-doubtedly encounter during their careers.

The Automatic StayAs its name suggests, the automatic stay is a stay that comes into effect au-tomatically upon the filing of almost every bankruptcy case.1 Generally, the automatic stay prohibits the exercise by creditors and other parties of many rights against the debtor that they may otherwise have outside of bankruptcy. Note that the automatic stay provides relief to the debtor but generally not to non-bankrupt co-debtors.

Purpose of the Automatic StayThe automatic stay serves two prima-ry purposes. First, it gives the debtor breathing room while it liquidates or attempts to reorganize. Second, it pro-motes the bankruptcy principle of

orderly liquidation and distribution by preventing creditors from scrambling for the debtor’s assets.

What Is Stayed?The automatic stay is extremely broad. It applies to almost any action that would affect the debtor or property of the bankruptcy estate, including: collecting pre-bankruptcy debts; commencing or continuing litigation against the debt-or relating to pre-bankruptcy debts or events; and foreclosing on collateral or otherwise attempting to obtain posses-sion or control of property of the estate. Many lawyers do not recognize that the automatic stay generally prohibits the termination of contracts with the debtor, even if the debtor is in breach. When in doubt, consult 11 U.S.C. § 362(a) and keep in mind that most bankruptcy courts read section 362(a) very broadly.

What Is Not Stayed? 11 U.S.C. § 362(b) provides a list of ac-tions that the automatic stay does not prohibit. Generally, the automatic stay does not apply to the government’s ex-ercise of its regulatory or police powers or the enforcement of most domestic

support obligations. Note that the stay may also not apply to collection of post-bankruptcy debts or enforcement of post-bankruptcy obligations, but the applicability of the stay in those circum-stances is tricky.

Consequences for a Stay Violation

Actions in violation of the automatic stay may be void or voidable. A violation of the automatic stay can also result in sanc-tions for contempt of court or the award of actual and punitive damages. Beware!

Relief From the StayA party may ask the bankruptcy court to lift the automatic stay. To lift the stay, the party must file a written motion with the bankruptcy court and provide the debtor and other interested parties the opportunity to object and be heard. See 11 U.S.C. § 362(d) for a discussion of when relief may be granted.

When Does The Stay End? The automatic stay will apply until the bankruptcy case concludes, with a couple of exceptions laid out 11 U.S.C. § 362(c). Even after bankruptcy, the discharge in-junction may impose many of the same restrictions as the automatic stay. But that is a discussion for another column!

1. The significant exceptions are involuntary bank-

ruptcy cases and certain repeat bankruptcy filings.

Khang V. Tran practices bankruptcy law at Hogan Lovells US LLP in Washington, DC. He can be reached at [email protected].

Make a Difference. Volunteer.We need your help! The Virginia State Bar Young Lawyers Conference (YLC) needs Circuit

Representatives, Program and Commission Chairs, and committee members / volunteers for many

of its programs in the 2011–12 bar year. Please visit the YLC website at http://www.vsb.org/site/

conferences/ylc/view/volunteer-opportunities/ for more information on how to get involved, or

contact Nathan Olson at [email protected].

Summer 2011 • page 5

Criminal CornerAmy L. Bradley

the Hernandez decision where statutory authority is not expressly granted; and

2. For each such case, inform the House Courts of Justice Committee:

a. The original charge or charges; b. The reason for the deferral pursuant to

Hernandez;c. The length of the deferral; and d. The ultimate disposition of the case.

On June 15, 2011, the Virginia Trial Lawyers Association and Virginia Bar Association jointly submitted an op-ed piece to The Virginian-Pilot which expressed displeasure with the letter’s

“warning” placing “unacceptable pres-sure” on judges to compromise judicial independence. The editorial highlights the judicial branch’s dependence on the legislative and executive branches for not only its budget, but also for the filling

of judicial vacancies. Such dependence makes it difficult to view the judicial branch as a constitutionally contem-plated co-equal. In summary the op-ed concludes: “We believe, therefore, that the decision to send the letter was inap-propriate, regrettable and stands in clear conflict with the way our democratic government must operate: The legisla-tive branch makes the law. The executive branch enforces the law. The judicial branch interprets and applies the law in cases brought before the courts.”

For more information on the letter, the editorial and Hernandez, visit http://www.vba.affiniscape.com/ and click on the Unacceptable Pressure link.

Following publication of the Spring Edition of Docket Call, I received feed-back from several attorneys expressing concern about a letter which had been sent to judges regarding Hernandez dis-positions. In Hernandez, the Supreme Court of Virginia held that a trial judge has inherent authority to take any crimi-nal case under advisement or to continue that case for disposition at a later date, notwithstanding the sufficiency of evi-dence to support a conviction. Hernandez v. Commonwealth, 281 Va. 222 (2011).

Four members of the House Courts of Justice Committee sent the letter to all incumbent circuit court and general dis-trict court judges whose terms expire in 2012 and will be seeking reappointment. The letter outlined the process for judges seeking election, including interviews of incumbent judges seeking reappoint-ment. The letter made clear that judges seeking reappointment will face the fol-lowing questions from the committee:

1. Identify each case in which deferred disposition was granted pursuant to

Online deal-of-the-day advertising through websites like Groupon or Living Social may seem tempting to a lawyer seeking an economical way to advertise, but there are a number of serious ethi-cal issues involved. First, the payment arrangement typically used by these web-sites violates Rule 5.4(a) of the Virginia Rules of Professional Conduct, which pro-hibits sharing legal fees with a nonlawyer. See LEO 1438. Rather than charging a flat fee for advertising, the sites collect the purchase price directly from the pur-chasers of the deal, and then take a set percentage (up to half) of the amount col-lected. The amount the lawyer pays for

the advertising is therefore directly relat-ed to how many clients purchase the deal.

These advertising services also present a trust accounting issue. The client pays fees directly to the service, which then holds the money for several days before pass-ing along the lawyer’s share of the fees. All unearned legal fees must be deposited directly into a lawyer’s trust account and cannot be held by a third-party interme-diary for any length of time. Therefore, a lawyer can only use these services if the funds are paid directly from the purchaser into the lawyer’s trust account.

This leads to a related point: a lawyer can-not use PayPal to collect unearned legal fees from clients. PayPal typically holds funds for some period of time before transferring the funds to the recipient’s bank account, either automatically or at the request of the recipient. PayPal is not a Virginia State Bar-approved finan-cial institution; thus, even if the fees are segregated in the lawyer’s personal PayPal account over which he has exclusive con-trol, the account itself is not a permissible trust account under Rule 1.15. While PayPal may be used for the payment of earned fees, which are not client property and therefore not governed by Rule 1.15, it could be used for unearned fees only if the funds were transferred directly from the client to the lawyer’s non-PayPal trust account.

The Ethics of Advertising and Collecting Payment Online

Ethics CornerEmily F. Hedrick

Emily F. Hedrick is Assistant Ethics Counsel for the Virginia State Bar in Richmond. She may be reached at [email protected]

Amy L. Bradley practices criminal law at the firm of Greenspun, Shapiro, Davis & Leary, P.C. in Fairfax. She may be reached at [email protected].

page 6 • Docket Call

A Day in the Life of a Nonprofit In-House CounselHeather E. Lyons

I spent the first four and a half years of my legal career in private practice, first as an associate in a large law firm, then in a small boutique practice. Now I prac-tice in-house for a nonprofit corporation, and I know I have found the right place to use my legal skills.

I work for National Industries for the Blind (NIB), a 73-year-old nonprofit whose mission it is to enhance the op-portunities for economic and personal independence of persons who are blind, primarily through creating, sustaining and improving employment. We are a designated Central Nonprofit Agency under the AbilityOne Program, a federal purchasing program that enables peo-ple who are blind to work and provide products and services to federal and com-mercial customers. NIB has 90 associated nonprofit agencies around the country that employ people who are blind to manufacture a wide variety of products, ranging from office supplies such as pens, to cleaning products, to niche and textile products designed to help soldiers, such as uniforms. Our agencies also employ people who are blind to provide services

such as call-center work and contract closeout management.

NIB’s unique role as both a private nonprofit corporation and a federally-designated Central Nonprofit Agency makes my job complex, but it is the challenges and rewards of this complex-ity and the importance of NIB’s mission that bring me to work every morning. As my part of supporting that mission, I handle a wide range of matters and in-teract with many different people. This is very interesting and enjoyable, but it does require flexibility and the ability to be a jack-of-all-trades. For example, on one recent work day, I spent part of the morning reviewing and approving subcontract agreements with several of our associated nonprofit agencies for the blind. I then switched gears and discussed a trademark question with a colleague in the communications depart-ment. My afternoon was spent talking about legislation with our Executive Vice President, having a conference call with an outside counsel on a regulatory issue, conferring with a colleague in the con-tract administration department about

a particular government contract clause, and finished up by preparing documents for a Board of Directors meeting. This is not an unusual schedule for me. Unlike when I was in private practice, it is very rare to spend an entire work day dealing with only one project.

Transitioning from firm life to in-house life is a goal for many young attorneys, as is working in the nonprofit sector. I believe there are three things you must learn how to do well in order to work in-house at a nonprofit: first, know how to communicate with non-lawyers about legal issues; second, be able to handle multiple competing demands touching a wide range of legal issues; and third—but most importantly—have the desire to put your legal skills to work for your nonprofit’s mission. Going to work ev-ery day to advise NIB and help support its mission makes a very challenging and satisfying legal career.

Heather E. Lyons is an attorney with National Industries for the Blind in Alexandria. She can be reached at [email protected].

Upcoming EventsBoard Dinner and Meeting August 12-13, 2011, Omni Charlottesville Hotel

YLC Professional Development Conference September 23, 2011, Hunton & Williams, Richmond

YLC Leadership Conference September 24, 2011, Richmond

Tidewater Minority Pre-Law Conference October 22, 2011, Regent University School of Law

Please visit www.VAYoungLawyers.org for a full calendar of events.

Sign up for the YLC List Servehttp://mailman.listserve.com/listmanager/listinfo/ylc

Summer 2011 • page 7

What Today’s Real Estate Investors Need to Know About Foreclosure-Related Lawsuits in Virginia

Part Two: Foreclosure Related Lawsuits and Investment Decision Making

John C. CowherdAn investor considering purchase of real

estate encumbered by a distressed loan

wisely considers any foreseeable litiga-

tion in making an informed decision.

Three common types of court filings

frequently occur during the foreclosure

process: (1) suits brought by the bor-

rower attempting to prevent or void the

foreclosure sale, (2) bankruptcy filings

and (3) actions brought by the purchaser

after the foreclosure sale to evict the pre-

vious owner.

Equitable ActionsIf a borrower goes into default and the

bank’s trustee schedules a foreclosure

sale, the borrower may file a suit request-

ing that the court enjoin the foreclosure

from taking place. In order to bring

such a suit, the owner must be able to

show that the threatened foreclosure is

not proper under the loan documents

or law. The plaintiff may seek a prelimi-

nary injunction against the sale of the

property while the dispute is pending.

Alternatively, the borrower may bring

an action requesting the court to de-

clare a completed foreclosure sale void.

Purchasing a property which has been

involved in litigation requires particular

care in the title examination process. A

civil suit challenging a foreclosure may

impair an investor’s ability to sell, refi-

nance or lease a property for months or

even years.

BankruptcyAny bankruptcy filing by the borrower

results in an “automatic stay” of any

foreclosure proceedings. See 11 U.S.C. §

362(a)(4). If the lender wants to proceed

with a foreclosure after the borrower files

for bankruptcy, it must file a motion with

the bankruptcy court. See Fed. R. Bankr.

P. 4001. Whether such foreclosure may

proceed depends upon the circumstanc-

es of the case and whether the borrower

filed for a liquidation or a reorganization

of the debts and assets. A wise investor

avoids purchasing an investment prop-

erty from anyone who is in bankruptcy

unless there is a bankruptcy court order

that authorizes the sale.

Unlawful DetainerFor most home owners with distressed

mortgages, their first experience with the

Virginia court system is when the new

owner attempts to evict them after pur-

chasing the property at the foreclosure

sale. After the bank or other purchaser

obtains the trustee’s deed, the prior occu-

pants may refuse to abandon the premises.

One of the peculiarities of Virginia law is

that a homeowner may lose title to their

property without a lawsuit, but the new

owner has to get a court to order the sher-

iff to transfer possession. This process of

determining who has the right of pos-

session is known as “Unlawful Detainer.”

See Va. Code § 8.01-126. Some borrowers

attempt to have the foreclosure sale set

aside during the unlawful detainer ac-

tion. While a defendant in an unlawful

detainer has a right to assert defenses at

trial, challenging the new purchaser’s ti-

tle is usually unsuccessful. The subject of

an unlawful detainer is determining the

superior right to possess and occupy the

property and not to resolve title disputes.

See Morris v. Deane, 27 S.E. 432 (Va. 1897);

In Re Boswell, 238 F.3d 410, 410 (4th Cir.

2000)(unpub. per curiam); Bank of New

York Mellon v. Nguyen, No. CL-2009-16787,

2010 WL 1805356 (Fairfax Co. Mar. 30,

2010). The purchaser of property at a

foreclosure sale may bring an unlawful

detainer case against any of the continu-

ing occupants. Tenants may have certain

rights to possession under the Protecting

Tenants at Foreclosure Act of 2009, Pub.

L. No. 111-22, as amended & extended by

Pub. L. No. 111-203. An investor pur-

chasing a property at a foreclosure sale

must be prepared for the possibility that

the occupants may contest the unlaw-

ful detainer and retain possession of the

property for several months. If the inves-

tor purchases the property from the bank

(or whoever bought it at the foreclosure

sale), the bank would probably complete

the unlawful detainer process prior to

putting it up for sale.

The 2011 real estate market presents an

alluring array of opportunities to inves-

tors who have access to sufficient funds

to invest, the patience to shop for and

manage properties, anticipate rising

property values and are willing to take

risks. Although Virginia is not a judicial

foreclosure state, the court system fre-

quently becomes involved in the process.

Foreclosure related lawsuits can disrupt

an investor’s plans for resale or leasing

of the property. The discerning inves-

tor considers active lawsuits involving

property she is interested in and any

foreseeable disputes that may affect her

investment plan.

John C. Cowherd is an Associate Attorney at Culin, Sharp, Autry & Day, P.L.C. in Fairfax. He can be reached at [email protected].

page 8 • Docket Call

contributions to the Oliver Hill/Samuel Tucker Law Institute. Amanda Reid and Melissa York were honored for their pro-gram, Students Day at the Capitol. Monica Walker received a Distinguished Service Award in recognition of her work with the Professional Development Conference, while Brian Wesley was recognized for his work with the Northern Virginia Minority Pre-Law Conference. Andrew Tank was honored for his work with Athletics at the Annual Meeting. Finally, Joanna Faust was named the R. Edwin Burnette, Jr. Young Lawyer of the Year.

By Saturday, all that was left for the YLC was to close out the Annual Meeting with the annual David T. Stitt Memorial Volleyball Tournament. This year, Fairfax firm Surovell Isaacs Petersen & Levy, PLC sponsored the refreshments, and Fairfax attorney Edward L. Weiner’s team of

“Weiner’s Winners” took home the trophy.

Joanna L. Faust practices law at Cameron/McEvoy, PLLC in Fairfax. She may be reached at [email protected]

Ruth and Thomas Kirui, who placed first in the female and male divisions of the YLC-sponsored “Run in the Sun” 5K Race

Old and new friends gathered at the Young Lawyers Conference Reception

Carson Sullivan, Joanna Faust, and Christy Kiely

YLC Service Award recipients

2010–11 YLC Board Members

Weiner’s Winners

continued from front cover