Title Agent, Closing Agent, Settlement Agent, Escrow Agent; What’s in a Name?

I get called lots of names, most of them are even complimentary!  But what is the difference between a Settlement Agent and a Closing Agent? What distinguishes a Title Agent from an Escrow Agent or Officer?  Honestly, there is only a little difference between these names, and when you are a Real Estate Attorney, like me, they actually all apply. 

In some parts of the country the names have very distinct differences; such as California and New York and their neighboring states.  But in Tennessee we are a bit more laid-back and “friendly-like”, and we don’t put much weight on the use of one name over another.  But if you want to be technical: an “escrow agent or officer” is a fiduciary who holds legal documents and funds for the benefit of others until all agreed conditions have been met.  A “title agent” is technically a licensed insurance agent who issues title insurance to purchasers and lenders. A “closing agent” is technically the person who sits down with the buyer or seller or borrower (or all three) and goes over the documents with them and answers their questions.  A “settlement agent” is technically the one who handles the accounting of the transaction and makes sure all the money is collected, verified, and disbursed in accordance with the terms of the contract and loan documents. 

There are offices around middle Tennessee which only do one or several of the above.  But I am a real estate professional and a licensed attorney; I literally do all of the above, frequently!  And I honestly don’t care which one you call me, just call me!, to handle your real estate transaction.  I thank you in advance; Jack McCann.

Where there’s a Will there’s a way.

We handle a fair amount of Probate. But one of the things I would be happy not to have to do any more is Intestate Probate. Intestate Probate is what we must do when someone dies without a Will. The two things that a Will does is: it names not only to whom things go (and eliminates the people who should not be beneficiaries) but also states who is in charge. That person in charge is typically called an Executor. An Executor has complete authority to manage the assets and disburse the assets, as directed by the Will. The court gives a lot of deference to the Executor unless there is evidence of fraud or negligence, and so the Executor is not easily hampered from his or her duties by contentious heirs. In contrast, in an Intestate Estate every heir is a beneficiary and any one of those heirs can ask to be the administrator or representative. Even worse, contentious heirs can, and usually do, make the job of the Executor or Administrator very difficult.

People who think they will save money by not doing a Will naively assume everything will just go easily; and always say, “I have nothing to fight over.” Wrong! There is nothing simple about intestate probate. Every heir is a beneficiary, and there is always someone who fights over something and says the administrator is mishandling things.  Because of that common occurrence, in an Intestate Estate the court requires a lot more documentation.  Contentious heirs make a lot more work for everyone and increases costs and headaches. Typical costs in our office for simple probate is usually around $2,500, and the executor’s fees are usually low. But intestate probate is much more involved, more difficult, takes longer, and our fees alone are usually closer to $5,000. If the court appoints a third party administrator then their fees are often quite high. So intestate probate is far more than double the price of paying for a simple Will plus the cost of regular testate probate combined!            

There is one New Year’s resolution everyone needs to do: get a current and properly executed Will. It is the gift that keeps on giving.

The Latin Myth

There is a widely propagated myth which I have attempted numerous times to dispel.  I’ve had this conversation so many times I now feel compelled to attempt to reach a broader audience.  It’s the misconception that studying Latin is essential to a well- rounded education.

It is widely accepted and taken as fact that the study of Latin is essential to classical education, even though it is a clear fallacy and does not hold up to the slightest scrutiny; much like global warming, extra-terrestrials, and the world being flat.  I have interviewed many people about this widely held belief and have come to realize its primary supporters and propagators are the mothers of tweenagers who are very concerned with their budding scholar’s holistic education.  These moms usually have a college degree but themselves have never studied Latin.  It is very seldom they have had post graduate study.  They are fed this myth by the authors of curriculums or academics whose advanced studies (at one time) required the study of Latin.

Of the academics who propagate the myth that Latin is necessary, they are, well – academics!  They don’t need to focus their time and efforts on activities which enable the average person to make money or gain business success.  In academia the more obscure your study the more prestige you gain. In fact, in academia those who promote the study of Latin are held in high esteem because they are keeping alive an otherwise dead language; just as those who promote global warming are regaled as saving the world!

The reality is that Latin is as necessary to elementary and high school classical study as airplanes are to clear skies. (It hurts, not helps).  The famed method of study we seek is critical thinking.  But the promotion of Latin is actually “classical thinking”, not “critical thinking”.  SO let us think critically for minute: what would help your child to better evaluate and discern the ideologies of the world; rote memorization or practiced examination (also called translation)?  Practiced translation!  What builds that skill in a child; rote memorization or practiced translation?  Practiced translation! How is Latin learned; rote memorization or practiced translation?  Oops!, that is correct: rote memorization.  Tsk, tsk.

In the ancient days the scholars, the men of authority, the men with important duties were all highly educated men – some of them were the original classical thinkers.  They were most noted for being well read (having read a lot of books) and for being able to discuss those books and apply their lessons to their lives.  The most important of all books for study was the Bible (If you study Jesus’ interaction with the Pharisees and Sadducees you will study “The Master” of critical examination and translation).  And from roughly 300 AD til the late 1400s most academic books were in Latin.  During this same time pretty much all other books of philosophy and science were also written in Latin.  So naturally, in order to have their sons grow up to be leaders the parents had to make sure their children studied Latin.

However, Johannes Gutenberg invented the printing press around 1440.  Around 1522 Martin Luther translated the Bible into German and his friends used the Gutenberg press to mass produce it.  That was the beginning of the of Latin’s end.  Today no one drafts in Latin anymore.  And everything that was found only in Latin in the 1300s through the 1600s is now readily found in English, German, Chinese, French, Italian, Spanish, Russian, Kurdish, and many more.  So we don’t need to know Latin to study any written material on the planet!

But what about the ancient manuscripts? you ask.  What about the original versions of the Bible?  What about the original manuscripts of other tombs of knowledge?  Well, here’s a shocker, first: the original Bible was not written in Latin, it was written in Hebrew, Aramaic, and Greek.  Those original manuscripts were later translated into Latin.  Second: if you or your child intends on becoming a bible scholar or researcher then when that goal becomes more focused (usually in college) he or she will study Greek and Hebrew.  If he or she has time left over, then go study Latin.

So why study Latin?  I can’t give you a single good reason.  In fact, every article supporting Latin which I read before writing this commentary could have the word “Latin” replaced with the word “Spanish” or “French” or “Italian” and would be just as true, and more appropriate.  Each of these languages, if studied with the same tenacity that Latin is heaped upon classical students, would achieve the same base root recognition, the same test score improvements and the same awareness of history.

The bonus, however, which cannot be achieved with Latin, is to also have a useful skill, a second language, which improves the young adult’s marketability, makes world travel easier, and opens up conveniences which Latin cannot.  Latin will never be a language that is spoken on the street, it is a language that is read and studied; which means it is only used in a library, classroom or office.  And if you are sitting in an office then you can surround yourself with lots of reference books and translation programs at the same time.  There is simply no reason to use up brain capacity memorizing Latin conjugations!

In fact, memorizing sports statistics or the history of Mormons or Muslims would be more useful, more interesting, and more likely to help you in your intellectual conversations at dinner parties thrown by bosses, wealthy intellectuals, or college presidents.

Spanish, Italian, German, or piano even, would be much more useful, practical and impressive to learn, and therefore a far better use of time.  Not only are you more likely to use these skills in the furtherance of your day to day business but you will be more likely to impress your boss or dinner guests as you converse with a living person in their natural tongue or provide the music for Christmas carols!

So, getting back to critical thinking and practiced examination and translation.  Training your mind to think of things in a different way and speeding up the ability to translate in your head would both be far, far better developed by studying Spanish.  After English, Spanish is the most widely spoken language in the world.  It is easy to find people with whom to practice Spanish.  And speaking Spanish, I promise you, will increase your child’s ability to travel, to earn a wage, and to grow his or her business.

Here is the real clincher: all those base roots to all those spelling bee words that you are (incorrectly) told you will discern more easily through studying Latin?; well Spanish (which came from Latin) has the same roots!  Death blow!!! Spanish wins!

Don’t believe me.  Let’s use the most obvious example I can think of: The Lord’s Prayer.  Here it is in both Latin and Spanish.  Notice how similar.

PATER noster, qui es in cœlis;

sanctificatur nomen tuum:

Adveniat regnum tuum;

fiat voluntas tua sicutin,

In cœlo et in terra.

Panem nostrum cotidianum

da nobis hodie;

Et dimitte nobis debita nostra,

sicut et nos dimittimus debitoribus nostris:

et ne nos inducas in tentationem:

sed libera nos a malo.

Or try this:

Padre nuestro, que estás en el cielo,

santificado sea tu Nombre;

venga a nosotros tu reino;

hágase tu voluntad

en la tierra como en el cielo.

Danos hoy nuestro pan de cada día;

perdona nuestras ofensas,

como también nosotros perdonamos

a los que nos ofenden;

no nos dejes caer en la tentación,

y líbranos del mal.

Do you know which one is Spanish and which is Latin?  Do you notice how very, very similar they are?  In fact the major differences between the two are the variations of the prayer itself.  One says “forgive us our debts as we forgive those who debt against us”; and the other says “forgive us our offenses as we forgive those who offend us”.  Sorry, I could not find identical translations and I am not good enough in either tongue to do my own translations!

But alas!!!  If only I had studied Spanish back when I was young; because by studying Spanish back then I would have had many opportunities as an adult to converse with other Spanish speakers and improve my skill (never had that chance with Latin). If only my parents had loved me enough and had the foresight to push me into Spanish, then I might have been skilled enough to be able today to make that translation. (Sigh of despair).

So let me finish this little article by explaining my qualifications for busting this myth.  I am part academic, part business professional.  I am a lawyer who writes for a living.  I attended Catholic elementary schools back when you could still use your Latin knowledge to converse with professors as well as read the Bible.  I have a bachelors, a Masters, and a Doctorate.  I studied Latin for 4 years, French for 2 and Spanish for 2.  I make my living using critical thinking and rhetorical writing. I have traveled around the world and the only language I have ever needed beside English was Spanish.  Unfortunately I am not fluent enough to get by without assistance.  In fact, in my own business I went out of my way to hire a Spanish/English bi-lingual girl so I could serve a growing market segment.  Her bilingual ability alone brings in almost enough business to cover her salary.  Would never happen with Latin.

The only value Latin has ever given me was the parlor trick of reading a Latin Bible.  But the sad joke was on me (and continues to be on every one still studying Latin).  If I had put all those hours studying Latin into studying Spanish instead then I would have (a) learned to conjugate and would have memorized past present and future tenses as well as masculine and feminine words, (b) would have been able to easily communicate with most of the foreigners I meet in my own country as well as non-English speakers in the majority of the planet, and (c) could use that skill to conduct business in a growing market segment.  With Latin I could only do the first of those three.

Bottom line, not one of the people I have spoken to who vehemently supports the study of Latin has themselves studied Latin.  My professor friends, upon hearing the financial and logical arguments against Latin will change their tone and encourage its study based upon tradition and . . . tradition (remember the classical studies argument fails).  In fact, one of my friends is a Latin professor.  He agrees wholeheartedly that if you have limited time in your semester schedule then Spanish or German would be much better choices.  But he is paid to teach Latin, and very few others can teach it, so he is paid good money to use this rare skill (by a bunch of well-meaning moms and their unsuspecting husbands).

So let me finish with a few other facts: Any base root of a word from Latin will pretty much always be the same base in Spanish (and probably Italian, and possibly French).  So that covers all you spelling bee enthusiasts.  No business will ever hire you because you are fluent in Latin, but they will put you on the short list if you are even mildly conversational in Spanish. That covers all the people who will someday need to support themselves and possibly a family.  For those who are independently wealthy and will never work but will travel the world, news flash: most of the world that does not speak English does speak Spanish; no place in the world speaks Latin.  AND, most of the waiters, waitresses, cabbies, and merchants will also know either English or Spanish, but none of them will know Latin.  And if they know some other Romance language born out of Latin then they will understand your Spanish.  Finally, for those of you who seek to be Harvard Professors or future assistant deans, you will still get further with Spanish; but you can start studying Latin when you are 26 years old and your Spanish base will make learning Latin easy!

So do your kid a favor, as well as your future son/daughter-in-law and your grandkids; drop Latin and start Spanish – today!

Contracts – Better Than a Headache!

I am the stereotypical old style doctor, the last client or patient I normally help is myself.  So I write this article as much to myself as to others.  A few years ago I paid an electrical contractor several hundred dollars more than I originally planned because of mark-ups and “add-ons” which he claimed had been agreed-to but which I am sure were never discussed, much less agreed.  In my case it was easier to pay him than to litigate but if I had done things wisely I would have written a short agreement before he started for both our benefits; which would have spelled out hourly rate, job expectations, materials prices (no mark-ups) and maximum project costs. 

Contracts can be written or oral (verbal agreement); but written Contracts are far better because, one: it forces you to think about the terms to which you are agreeing; and two, common law assumes if it is not in writing then it was not part of the deal.  But, it is usually worth the cost to pay an attorney for an hour’s worth of work to draft the document.  Experienced attorneys not only have their own experience but also the experiences of their various clients from which to draw and make sure your contract is thorough.    

If someone else has written the contract that you are asked to sign then I recommend hiring an attorney for one hour to review the contract and tell you what aggressive terms it might have or what protections it might leave out.  I regularly review contracts for people who are being asked to sign but are worried about getting ripped-off.  I also regularly consult with people who have already signed and have already been ripped-off and they want to know what rights they have under the contract they signed.  Unfortunately in many of those cases these people have little or no protections because the default rule of contract law is that if you signed it you have read it and agreed to it (see above). 

Again, I can use my own experience here.  Don’t assume that the nice guy you made the agreement with will always be around to honor the verbal promises he made to you.  A while back I entered into a five year contract that had a few standard terms which my vendor rep promised would not be applied to me.  Three and one half years later he was gone and the product was no longer providing for my needs but the contract had an early termination clause which the company did not want to waive.  I was lucky, I found an email from my old rep which proved we had agreed the fee was to be waived.  The company knew I was a lawyer so they did not want to risk litigating.  But I doubt they would have honored the email if I had not been an attorney.  Again, the wise thing would have been for me to be more patient when we made the agreement and get him to change the paperwork before I signed it. 

So, to summarize, an agreement of any sort is a contract; but a written contract is far more protective than an oral contract – assuming you understand the terms and have included protections.  And don’t be in a rush to sign something; get it reviewed first.  A good attorney is worth his price.  But, as with any product or service, don’t be afraid to shop around and get recommendations for an attorney.  Attorneys charge different rates and some are more experienced than others.  But there are plenty of attorneys who will provide you great service at a fair price.

What Can We Learn from the Boy Scouts?

I have worked with a lot of non profit organizations over the years.  The prevailing myth is that your non profit cannot survive if it does not have famous and/or wealthy and/or influential people on its board.  Thus, board members are selected not by the content of their character but instead by the size of their wallet or the amount of their influence.  And sooner or later this practice causes unintended and usually irreversible ramifications. 

For you see, someone who does not truly understand and support your non-profit’s original purpose will sooner or later superimpose their own purpose or the purpose of those who influence them.  Such is the case with the National Executive Board of the Boy Scouts of America.

Whether you agree with their decision made on May 23, 2013, or not there are two things that are irrefutable: the people making the decisions were not basing their vote on the intent of the founders or the voices of the many members.  And, the votes of the few new to the group overrode the established voice of the many seasoned members.  And there is a lesson in those two facts.

Non-profits have a tendency to invite the influential to be honorary presidents or voting board members in the hopes of gaining influence; but, more often than you expect, the invitee is a poison pill, corrupting the leadership and the mission of the organization.  A non-profit organization cannot exist without a board; but how that board is selected and the powers they wield can be narrowly crafted or broadly granted.  An experienced attorney or seasoned non-profit director can assist you or your organization in drafting a management format which can put the decision makers working either independently of, or subject to, the visible marketing or fundraising members.  Obviously, how the board is structured and how votes are weighed can make a big difference over the long term.

Aside from the Boy Scouts I have seen rogue board decisions cause utter implosion or drastic morphing change to private schools, churches, successful ministries, and even large public companies.  When a small group of people of like mind get into control, whether it was originally their organization or not, they seldom relinquish control before changing the organization to operate the way they think it should.  So the lesson to be learned from the Boy Scouts is: draft your management documents in a way that either the founders or majority of members can’t lose control; or in such a way that rogue directors can easily be removed at the first glimpse of them changing the path of the organization away from its intended purpose, before they can vitiate or eviscerate the moral fiber of the organization.

Executive Orders, Guns, and Fear

I am afraid; I have beautiful children and I am afraid for their safety.  I am afraid the US President and the vocal minority are making rules without regard to the facts. 

In one of his blog articles, California Constitutional Law Professor Robert Sheridan, wrote: ““The Only Thing We Have To Fear Is Fear Itself” The statement about fear is by Franklin Delano Roosevelt, elected president in 1932 as the nation was diving to the bottom of the economic barrel, with millions of heads of family, men, then, thrown out of work.  Soup kitchens and apple-sellers became the symbols of the Great Depression.  In his Inaugural Address in 1933, FDR addressed the low morale and spirit of depression, as well as the economic fact of depression, coming out with the ringing statement that captions this item.”  He continued, “Fear drives our law, as well as our economy.  Dealing with it takes a special skill. . . . What do civilians do when frightened?  They have their legislators pass feel-good legislation designed to outlaw the boogie-man that’s frightening them.”  And he referenced a frightening case: Korematsu.

Korematsu v. United States, 323 U.S. 214 (1944), was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II regardless of citizenship.  In that case the Supreme Court sided with the government, ruling that the exclusion order was constitutional and that the need to protect against espionage outweighed Fred Korematsu’s individual rights and the rights of Americans of Japanese descent.  However, its fairly accepted as fact that the government attorneys suppressed evidence by keeping from the Court a report from the Office of Naval Intelligence indicating there was no evidence that Japanese Americans were acting as spies or sending signals to enemy submarines.  So the Order, and the case that upheld it, where based upon fear and inaccurate information.

In an article in the Wall Street Journal on Friday January 18, 2013, John R. Lott, Jr., wrote “If we finally want to deal seriously with multiple-victim public shootings, it’s time that we acknowledge a common feature of these attacks: With just a single exception, the attack in Tucson last year, every public shooting in the U.S. in which more than three people have been killed since at least 1950 has occurred in a place where citizens are not allowed to carry their own firearms.  Had some citizens been armed, they might have been able to stop the killings before the police got to the scene. In the Newtown attack, it took police 20 minutes to arrive at the school after the first calls for help.”  Lott is a former Chief Economist of the United States Sentencing Commission, has been a professor at a vairiety of excellent universities and law schools and has written several books on gun and crime correlation.

I don’t want my President, my legislatures, my Governor, my state legislators or anyone else to make laws or Executive Orders based on an irrational fear of guns.  I want them to make laws and Executive Orders on real hard facts and protect my precious children from emotionally disturbed people with guns. 

After reading close to one hundred recent articles regarding guns and death I realize there is a lot of misinformation and opinion but only a little bit of accurate reporting or publication of true facts.  One fact that is clear, gun free zones exacerbate the problem not alleviate it. 

I am afraid the “solutions” being pushed through are ineffective at best and will likely have a contrary effect.  So I support the elimination of “gun fee zones” and the promotion of conceal carry.  I have read enough to realize, gun free zones don’t work; outlawed guns don’t work; more police does not work.  The only thing that works is the uncertainty by one about to commit a criminal act of knowing how many ordinary people around him or her at any given minute might be armed and ready to defend the defenseless. 

To be accurate, I support legally licensed or permitted people to be able to carry concealed legal weapons pretty much anywhere they deem qustionably safe (with a few practical exceptions such as bars); but especially and specifically they should be able to carry on school grounds, in schools, in churches, in malls, in movie theaters, in restaurants, in grocery stores, in public parks, and every other public place.    Let us not cave into fear; we need to do something that will actually help.  If even one life is saved it is worth it.

Car Seats

Today as I was driving around with two of my sons I listened as they each explained to me their understanding of the law concerning to what age or size a child must sit in a car-seat or booster seat whilst riding in the car.  This issue is important to them for two reasons: 1) it is a milestone, almost as significant as shaving, when a child of either gender (but especially a boy) is no longer is required to sit in a car seat.  2) my youngest son, who is eight years old, is very large for his age (think Michael Ohre ((I pray my son is as good at football)) and is easily bigger than a significant segment of the population of 10-12 year olds.  

SO what is the law in Tennessee? 

Section 55-9-602 Child passenger restraint systems — Violations – Penalties  **(I did not include all of the penalties).

(a) (1) Any person transporting any child, under one (1) year of age, or any child, weighing twenty pounds (20 lbs.) or less, in a motor vehicle upon a road, street or highway of this state is responsible for the protection of the child and properly using a child passenger restraint system in a rear facing position, meeting federal motor vehicle safety standards in the rear seat if available or according to the child safety restraint system or vehicle manufacturer’s instructions.

(2) Notwithstanding § 55-9-603, any person transporting any child, one through three (1-3) years of age weighing greater than twenty pounds (20 lbs.), in a motor vehicle upon a road, street or highway of this state is responsible for the protection of the child and properly using a child passenger restraint system in a forward facing position, meeting federal motor vehicle safety standards in the rear seat if available or according to the child safety restraint system or vehicle manufacturer’s instructions.

(3) Notwithstanding § 55-9-603, any person transporting any child, four through eight (4-8) years of age and measuring less than four feet, nine inches (4′ 9”) in height, in a passenger motor vehicle upon a road, street or highway of this state is responsible for the protection of the child and properly using a belt positioning booster seat system, meeting federal motor vehicle safety standards in the rear seat if available or according to the child safety restraint system or vehicle manufacturer’s instructions.

(4) (A) If a child is not capable of being safely transported in a conventional child passenger restraint system as provided for in this subsection (a), a specially modified, professionally manufactured restraint system meeting the intent of this subsection (a) shall be in use; provided, however, that the provisions of this subdivision (a)(4) shall not be satisfied by use of the vehicle’s standard lap or shoulder safety belts independent of any other child passenger restraint system. A motor vehicle operator who is transporting a child in a specially modified, professionally manufactured child passenger restraint system shall possess a copy of the physician’s signed prescription that authorizes the professional manufacture of the specially modified child passenger restraint system.

(B) A person shall not be charged with a violation of this subsection (a) if the person presents a copy of the physician’s prescription in compliance with the provisions of this subdivision (a)(4) to the arresting officer at the time of the alleged violation.

(C) A person charged with a violation of this subsection (a) may, on or before the court date, submit a copy of the physician’s prescription and evidence of possession of a specially modified, professionally manufactured child passenger restraint system to the court. If the court is satisfied that compliance was in effect at the time of the violation, the charge for violating the provisions of this subsection (a) may be dismissed.

(b) All passenger vehicle rental agencies doing business in the state shall make available at a reasonable rate to those renting the vehicles an approved restraint as described in subsection (a).

(c) (1) A violation of this section is a Class C misdemeanor.

(g) (1) (A) Notwithstanding § 55-9-603, any person transporting any child, nine through twelve (9-12) years of age, or any child through twelve (12) years of age, measuring four feet, nine inches (4′ 9”) or more in height, in a passenger motor vehicle upon a road, street or highway of this state is responsible for the protection of the child and properly using a seat belt system meeting federal motor vehicle safety standards. It is recommended that any such child be placed in the rear seat if available.

(B) Notwithstanding § 55-9-603, any person transporting any child, thirteen through fifteen (13-15) years of age, in a passenger motor vehicle upon a road, street or highway of this state is responsible for the protection of the child and properly using a passenger restraint system, including safety belts, meeting federal motor vehicle safety standards.

So what does that mean?  Well, if your kid is under age nine and is less than 4’9” tall then he or she is supposed to be in a booster seat or car-seat.  Go get a tape measure; 4’9” is a lot taller than you think.  The average woman is only 5’3”.  In fact, I know women who are probably only 4’8”.  And, alas, as big as my boy is, he is still a few inches short.  So, he’ll have to wait.