Wednesday, September 13, 2017

Options for Recovery of Personal Property in Maine

Secured creditors are often faced with uncooperative borrowers following a default, resulting in the need to resort to legal action to recover collateral.  In the State of Maine, there are two basic remedies available to creditors to pursue recovery of personal property by legal action.  One is a replevin action and the other is a forcible entry and detainer action.

A replevin action may be commenced in either the District or Superior Court.  A replevin action is commenced by filing a complaint for replevin with the court along with a motion for writ of replevin and supporting client affidavit.  Once these documents are filed with the court, the court sets a date and time for the hearing on the motion for writ of replevin.  The complaint and related documents are then served on the defendant along with the notice of hearing.  At the hearing, if the court grants the motion the plaintiff must then provide the court with a bond from a bonding company in order to be able to obtain the writ of replevin.  The bond amount must be twice the value of the collateral to be recovered.  Once the writ of replevin is issued by the court, it is given to the sheriff who then serves it on the defendant and recovers the collateral. This requires coordination with a repossession agent who can take actual possession of the collateral.  Once recovered, the collateral is sold and the lawsuit is pursued to conclusion, resulting in a final judgment confirming the plaintiff’s right to possession of the collateral and a monetary judgment against the defendant for any deficiency balance, if the plaintiff proves its case.

A forcible entry and detainer action may be plenary or summary in nature and can only be filed in the District Court.  In the plenary action, the complaint demanding possession of the equipment is filed with the court and served on the defendant.  If the defendant files an answer, then the parties may proceed with discovery, motion practice, and ultimately a trial, if needed.   If the summary forcible entry and detainer process is used, then the defendant is served with a complaint and a summons which has a return day for the hearing.  The defendant is not required to file an answer to the complaint but can simply appear on the return day and contest the matter.  The case is to be tried on the return day if the court schedule permits.  Hence, the summary procedure requires that the plaintiff have a witness available for trial on the return day if the defendant appears and contests the matter.  The parties can also be ordered by the court to participate in mediation on the return day, using court appointed mediators who are present on the return day to mediate cases.  Whether the summary or plenary procedure is used the result, if the plaintiff prevails, is the issuance of a writ of possession which is then served on the defendant by the sheriff, who demands possession of the collateral. No bond is required in a forcible entry and detainer action.

If you are a creditor and are interested in recovering your property please contact me today.

Tuesday, March 1, 2016

Defenses to Criminal Charges: The common defenses that criminal defendants can raise to defend against criminal charges.

To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the defendant is given an opportunity to present a defense. There are many types of defenses, from "I didn't do it" to "I did it, but I was too drunk to know what I was doing." Here are some of the most common defenses that criminal defendants can raise.

The Defendant Didn't Do It

Most often defendants try to avoid punishment by claiming they did not commit the act in question.

The Presumption of Innocence

All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. A defendant may simply remain silent, not present any witnesses, and argue that the prosecutor failed to prove his or her case. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.

Reasonable Doubt

The prosecutor must convince a judge or jury of a defendants guilt "beyond a reasonable doubt." This heavy burden of proof in criminal cases means that judges and jurors are supposed to resolve all reasonable doubts about the defendants guilt in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is to argue that reasonable doubt of guilt exists.

The Alibi Defense

An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie's alibi defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.

The Defendant Did It, But...

Sometimes a defendant can avoid punishment even if the prosecutor shows that that the defendant did, without a doubt, commit the act in question.


Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon, or murder. The defendant admits that he or she did in fact commit the crime, but claims that it was justified by the other person's threatening actions. The core issues in most self-defense cases are:
  • Who was the aggressor?
  • Was the defendant's belief that self-defense was necessary a reasonable one?
  • If so, was the force used by the defendant also reasonable?
Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until he or she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that he or she is about to be physically attacked, that person has the right to strike first and prevent the attack. However, an act of self-defense cannot use more force than is reasonable -- someone who uses too much force may be guilty of a crime.

The Insanity Defense

The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.
The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:
  • Despite popular perceptions to the contrary, defendants rarely enter pleas of "not guilty by reason of insanity." When they do, judges and jurors rarely uphold it.
  • Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context. The most popular definition is the "McNaghten Rule," which defines insanity as "the inability to distinguish right from wrong." Another common test is known as "irresistible impulse": a person may know that an act is wrong, but because of mental illness he or she cannot control his or her actions (this person is described as acting out of an "irresistible impulse").
  • Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.
  • An insanity defense normally rests on the testimony of a psychiatrist, who testifies after examining the defendant, his or her history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.
  • Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests conducted at the behest of the prosecution. This can be a very painful and humiliating experience, one that many defendants choose to forgo rather than rely on the insanity defense.

Under the Influence

Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.
Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires "specific intent" (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent. For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly weapon, which doesn't require specific intent.


Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it. However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for defendants with prior convictions for the same type of crime.

Saturday, September 19, 2015

Defending Yourself Against a Criminal Charge

Defending Yourself Against a Criminal Charge 

A Quick Guide For Common Criminal Charges

Every case is different, but here are a few of the most common defenses to a criminal charge.

In order to convict you of a criminal charge, the prosecutor must prove your guilt beyond a reasonable doubt. This is a pretty lofty standard, and during any trial the defendant may present a defense in order to raise such a reasonable doubt. Most defenses break down into one of two categories: (1) I didn't do it or (2) I did it, but I shouldn't be held responsible.

1. I Didn't Do It

The most basic defense to any criminal charge is to simply prove that you didn't do it.
Innocent Until Proven Guilty
One of the hallmarks of the American legal system is the presumption that you are innocent until proven guilty. This isn't just an ideal, it's an actual legal presumption, which means the judge and jury must assume you're innocent until they are shown otherwise. This is why a defendant can "plead the fifth", remain silent, and not offer a shred of evidence to support his or her claim of innocence and still prevail. It is the prosecutor's job to prove a defendant is guilty, not a defendant's job to prove that he or she is innocent. So what does a prosecutor have to show?
Beyond a Reasonable Doubt
The prosecutor must demonstrate to the judge or jury that there is no reasonable doubt of your guilt. If any reasonable doubt can be shown, any at all, then the prosecutor has failed and you should be found innocent. Because this standard is so high, most defendants concentrate on raising some reasonable doubt to the prosecutor's allegations.
I Have an Alibi
One of the primary ways defendants prove that they didn't do it is to demonstrate that they couldn't have done it. An alibi defense is evidence that you were somewhere else, often with someone else, and thus couldn't have been the perpetrator. By demonstrating to a judge or jury that it is likely that you weren't present at the crime scene, you are creating a reasonable doubt of your guilt.

2. I Did It, but Shouldn't Be Held Responsible

Many defendants admit that they did the act, but claim for one reason or another, that they shouldn't be held responsible. Here are a few examples of this type of defense:
This is a common defense when someone is charged with causing some form of physical violence (assault, battery, etc). The defendant flips the story, and demonstrates that rather than being the aggressor, he or she was actually the victim and was acting to protect themselves from harm.
Self-defense is an ancient defense that exists in most legal systems, and is predicated on the belief that people have a right to defend themselves from physical injury. Proving such a defense can be tricky since a defendant will generally have to demonstrate that self-defense was necessary, the belief of physical harm was reasonable, and that the response was reasonable. For example, responding to an assailant's threat to punch you by shooting them is almost certainly an unreasonable response.
Insanity Defense
Although it makes for fascinating TV dramas, in real life defendants rarely plead insanity as a defense. Judges and jurors are very skeptical of these claims, and because of the abstract nature of this defense, it can be very difficult to actually prove.
The theory behind an insanity defense is the notion that in almost every criminal law, there is a "mental" or "intent" element. Often, the required mental state is that you must have intended to perform the criminal act. If a defendant is precluded from an understanding of what they're doing because of mental illness, then they can't possess the mental state that the criminal charge requires. From a policy standpoint, we also tend to think that it would be more appropriate to send someone who is truly insane to psychiatric care, not to prison. Thus, even if a defendant is successful in an insanity defense, they will be sent to a psychiatric institution, not set free.
So how do courts define "insane"? The most popular definition is the McNaughten test which defines insanity as "the inability to distinguish right from wrong". To successfully win an insanity defense, a defendant will rely on testimony from a psychiatrist, and will undergo extensive psychiatric testing which can be painful and humiliating.
Under the Influence Defense
Related to the insanity defense, some defendants defend themselves by claiming that they were under the influence of drugs, and could not have had the mental state necessary to commit the crime. In other words, they were too high to really know what they were doing. Only a few states allow this defense, and even then, it is only a partial defense. At best, it will lower the crime you are convicted of to a lesser crime.
Entrapment Defense
Entrapment defenses are appropriate when a government official induces you to commit a crime. Common examples of this are prostitution stings or drug sales. The theory is that the government shouldn't be allowed to push you into committing a crime and then convicting you for it.
This defense won't be successful if the judge or jury believes you were predisposed to committing the crime, however. So even if an undercover officer offered to sell you illegal drugs, if you have a history of drug use, then an entrapment defense isn't likely to be successful.

The Top Ten Mistakes that Divorcing Couples Make

The Top Ten Mistakes that Divorcing Couples Make:

When your marriage comes to an end, it can get complicated.  The problem, of course, is that a lot of difficult decisions must be made, and these decisions have life-long consequences.   It is difficult to know exactly what to do.   This is why it is critical that, if you a seeking a divorce, that you obtain the services of an experienced family law attorney.   Most of these mistakes have their root in what might be called "folk wisdom".   In other words, legal advice offered by your neighbor's cousin who just got a divorce, or by a television show.   A good lawyer will help you avoid these disastrous mistakes:

10.  Quit your job.  In most divorces, there are two on-going financial issues.   They are child support and maintenance.   An urban legend has it that if you quit your job during the time your divorce is pending, the court will be unable to order to you pay maintenance or child support.   Following this hair-brained advice is disastrous.   If the court finds that you have deliberately quit your job, it will be determined that you are "shirking" your responsibilities, and the judge will order you to pay the same amount you would have been ordered to pay had you still been working.  The problem, of course, is that you are no longer work and, therefore, you will begin accruing delinquencies.  This could end up being a lien against your real estate, and your tax refund will be intercepted each until until the delinquency is satisfied.

9.  Move away.  Some people think that, if a divorce is imminent, moving away will throw a monkey wrench into the proceedings.  It will not.  In order to file a divorce petition, the law requires that only one of the parties be a resident of the county for at least thirty days.  If you move away, you will probably be driving this distance to court; and you will likely not be awarded primary placement of the children because it is you who has made the situation more difficult.

8.  New boyfriend or girlfriend.   This is an especially bad idea if there are children involved.  If, while your divorce is pending, you meet this other person who you simply cannot live without, keep it a secret.  In making placement decisions, the court and the the guardian ad litem will, at the very least, think it is bad form.   It will also make settlement discussions much more difficult, and there are many other disastrous consequences.

7.  Nit-picking and niggling.  Before you go into divorce negotiations, make a list of your priorities.  It is expensive and counterproductive to engage in divorce litigation over an extra hour or two of placement, or over possession of inexpensive pieces of personal property, no matter what the sentimental value.

6.  Get arrested.  If a person going through a divorce is going to be arrested, it will most likely be for domestic violence offenses or for operating under the influence of alcohol.  Once the divorce is started, it is utterly counterproductive to argue with one another.  If the police are called, someone will be arrested, and it will usually be the man.  Once you have a criminal charge pending, complete with conditions of bond that prohibit contact with your spouse, you have created a road-block for yourself that may be nearly insurmountable.  Similarly, don't allow your new-found freedom to drive you over the edge.  A drunken driving charge creates similar obstacles.

5.  Fighting the GAL.   The guardian ad litem is a lawyer, hand chosen by the judge, to investigate the circumstances of the case, and to make a recommendation to the court as to what is in the best interests of the children.  The judges place great weight in the opinion of the guardian.  It is a fatal mistake, then, to take an adversarial approach with the guardian.   You may as well come to court and curse directly at the judge.

4.  Give away the farm.  Some people, especially those who are unrepresented by counsel in a divorce, are inclined to give away the farm in negotiations.   There are various motives for doing this.  They may truly believe that no price is too great to be rid of their spouse.  Others are motivated by the guilt of infidelity.   Either way, it is a very bad idea to agree to a property division, child support order, or a maintenance order that is not objectively fair under the law.  The emotional agony will subside with time.   The judgment is permanent.

3.  Band-Aid approach to negotiations.  When approaching settlement discussions in a divorce case, it is critical that each party bear in mind that-- with some exceptions-- this is going to be a final solution.   In other words, try to reach an agreement that will endure.  Do not make agreements that merely placate the other for a short time;  that is, an agreement that merely kicks the can down the road.  For example, if  there are young children, and if the parents plan to live in entirely different cities after the divorce, it is preposterous to agree to a shared placement schedule.  Once the children start school, such a shared placement schedule is entirely unworkable.  The only thing such an agreement accomplishes is to delay the real negotiations to a time when things will be much more difficult to resolve.

2.  Win at all costs.  The family court is described as a court of equity.  This means that the judge is obligated to do what is fair to the parties.   Almost by definition, a "fair" decision will make neither party happy.   There rarely is a winner and a loser in a divorce.  If you approach your divorce with the attitude that you are going to destroy your spouse financially and emotionally, you are making a grave mistake.   Firstly, you will spent monumental amounts of money on a fool's errand.   Secondly, if the judge gets the impression that you are vindictive and you are over-litigating the case, it will back-fire.  Do not seek out the divorce attorney whose reputation is that of a shark.   Seek out the attorney who is smart, a skilled negotiator, and who has years of experience in family court.

1.  Drag your feet.  Whether to divorce your spouse is a very difficult decision to make.  Consequently, people drag their feet.  If your marriage is not functioning, though, this is a grave mistake.   Couples will try the proverbial "trial separation" that always seems to work flawlessly on the soap operas.  This is nothing short of magical thinking, though.  There are issues that exist that prevent your marriage from functioning properly.  Living separately will not resolve those issues.   It only masks the symptoms of profound problems of living together that are not getting any attention.  Meanwhile, only bad things can happen while the couple lives apart.   It may be  the new boyfriend or girlfriend.   It may be that one spouse is a spendthrift who wracks up tens of thousands of dollars in debt.  At the time of the divorce, this is marital debt that will be divided equally.  So, if your marriage is not functioning, you must file for divorce.   It is critical to understand that the filing of the petition for divorce is not a point of no return.   The family law in Wisconsin provides numerous ways for the couple to reconcile even though a petition has been filed.   It is possible to seek a stay of proceedings so that the couple may live together in an attempt to reconcile.   There is a 120 day waiting period built into the law to give the parties every opportunity to work things a out.   There is no doubt that the family is far better off if the couple is able to resolve their differences.   You do not move toward that outcome, though, by dragging your feet.

That Guy in the Bushes With the Video Camera? He's From your Employer's Insurance Company!

Top 5 insurance company moves when conducting surveillance on people claiming workers compensation benefits.

Recently there was a woman caught on the Price is Right while collecting workers compensation benefits. She did not look very disabled while jumping up and down with excitement.

This story has gotten much attention and caused outrage. It feeds into the false perception that everyone on workers compensation is just scamming the system.
Insurance companies are not innocent victims and go to extremes to show a claim is fraudulent. Here are five examples that we have personally witnessed.

1. We represented several clients who were losing their jobs after a plant closure. These individuals had been given restricted duties instead of being paid wage loss benefits. A surveillance van actually sat in our parking lot during a group consultation. Was this a legitimate activity check or just harassment?

2. Another client has been in a wheelchair since the 1980s due to a spinal cord injury. The only dispute was regarding current home modifications. The insurance company hired a private investigator to see if he would secretly get out of his wheelchair after 25+ years. This shows the depths of insurance company paranoia.

3. One client lost her arm in an industrial machine. An investigator showed up at the hospital within hours of amputation trying to get a sample for a drug test. Emergency care was still being administered and she was appropriately unavailable.

4. An insurance company lawyer made a big deal about surveillance video showing our client working on a vehicle in his garage. This was a concern because he was disabled from being an auto mechanic. Turns out the vehicle was a model car and our client was hunched over a workbench in pain.

5. A private investigator lied to a doctor’s office to obtain confidential medical information. This individual claimed to be our client’s relative and wanted to know about treatment including the next appointment date.

Carey & Associates never charges a fee to evaluate a case. We have represented injured and disabled workers exclusively for more than 45 years. Call (207) 364-7826 or message us for a free consultation.