Author Archives: JM Esq.

Clear and Unequivocal as Mud

This week’s case is a funny little case from 2018: Wilmington Trust, N.A. v. Rob, 891 F.3d 174 (5th Cir. 2018). Kcevin and Angel Rob took out a home equity loan in July 2007. They stopped paying on the loan in March 2011. Over the next two years, Wilmington Trust [n.1] sent the Robs a series of notices of default, of intent to accelerate, and of acceleration. But, in November 2014, Wilmington Trust sent the Robs a notice of rescission of acceleration. The Robs continued not paying their mortgage, and Wilmington Trust sued for foreclosure in June 2015. The district court entered judgment in favor of Wilmington Trust, but the Fifth Circuit reversed.

Texas courts require clear and unequivocal notice of (1) intent to accelerate and (2) acceleration itself. “Unless a lender provides both forms of notice, it may not foreclose.”  Rob, 891 F.3d at 177. Here, Wilmington Trust may have provided clear and unequivocal notice at some point, but the notice of rescission in November 2014 made all of that very much less clear and unequivocal. Wilmington Trust, therefore, failed to prove that it had provided clear and unequivocal notice and was, accordingly, not entitled to a judgment of foreclosure. Trial court judgment reversed and rendered; game over.

BUT — this case should not be read as saying that Wilmington Trust can never foreclose. Rather, it should be read as saying that Wilmington Trust cannot foreclose yet. If the home equity loan has not yet matured, Wilmington Trust could probably just re-issue the notices of intent to accelerate and of acceleration, then sue for foreclosure. Sometimes you can stick it to the man a couple times, but you can’t stick it to him  forever.


  1. Technically, the notices were sent by one of Wilmington Trust’s predecessors in interest,  but that detail is not particularly important.

Minors must be served; no ifs, ands, or buts about it

One of my biggest fears as a lawyer—the thing that makes me wake up in the middle of the night—is that there is some technical gotcha that I have missed, that nobody complained about, but that nobody had to complain about. A recent case out of the Austin Court of Appeals helps explain what I’m talking about. In N.J. v. DFPS, No. 03-20-00259-CV (Tex. App.—Austin Oct. 9, 2020, no pet. h.), the court of appeals reversed and remanded a trial court order terminating the parental rights of a minor because minors cannot waive the requirement of formal service of process, no matter how much they participate in the lawsuit and trial.

The facts are these: N.J. was born in 2003. She gave birth to L.B. (the “Child”) in May 2018, at the age of fifteen. Two months later, on July 23, 2018, CPS received a report of neglectful supervision after N.J. tested positive for “illegal-drug use.” Slip Op. at 1. Ten days after that, CPS filed a petition to terminate N.J.’s rights and obtained emergency orders removing the child from N.J.’s care. An attorney was appointed for N.J., and for the next 16 months, N.J. appeared at and participated in hearings. In January 2020, N.J. presented her case to a jury and asked them (a) not to terminate her rights and (b) to appoint her ex-boyfriend’s mother (the Child’s paternal grandmother) as the managing conservator. The jury said no, and the trial court entered a final judgment in line with the verdict.

N.J. appealed, arguing that the trial court’s judgment had to be vacated because the fact that she was never actually, formally served with process meant that the trial court never actually obtained personal jurisdiction over her. In America, a court cannot render a judgment without having personal jurisdiction over all the parties. This is obtained primarily in one of two ways: either through consent (e.g., filing or participating in the lawsuit) or through compulsion (e.g., being served with citation or process).

Ordinarily, when a defendant appears and participates in a lawsuit, that defendant is deemed to have consented to the trial court’s jurisdiction and cannot later complain about the lack of formal service. But minors are different. Minors are “non sui juris, meaning [they are] considered to be under a legal disability and therefore lack[] the capacity to sue or consent to suit.” Slip Op. at 5 (citing In re M.M.S., No. 14-16-00349-CV (Tex. App.—Houston [14th Dist.] Sept. 22, 2016, pet. denied)). Because a minor legally cannot consent to suit, the minor’s voluntary appearance or participation in a lawsuit cannot count as waiver of service. See In re W.L.C., 562 S.W.2d 454, 455 (Tex. 1978). This is old, old law in Texas. See Wheeler v. Ahrenbeak, 54 Tex. 535, 539 (1881). The idea is that we would not want to live in a society where a 15-year-old had to defend herself against the rich and powerful, well-organized apparatus of the State without the assistance of some adult on her side (other than her attorney).

Because a minor cannot consent to being sued, a plaintiff must formally, personally serve either the minor or, in certain circumstances, her legal guardian or next friend. See Slip Op. at 6 (citing several cases and rules outlining this rule). In this case, N.J. was 15 years old when the petition was filed, but neither she nor her legal guardian nor her next friend were formally, personally served with citation. So even though she appeared, answered, and participated in the lawsuit for 16 months and tried her case to a jury, the trial court never obtained jurisdiction over her.

Judgment reversed and remanded for retrial and one more reason for me to wake up in the middle of the night. [n.1]


Notes:

  1. The reader may be interested to know that the procedural vehicle for challenging defective service is a motion to quash, not a special appearance. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985); City of Houston v. Bryant, 516 S.W.3d 47, 55 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (“Although a claim of a defect in the service of process challenges whether the trial court’s personal jurisdiction over the defendant has been properly invoked, such claims must be raised in a motion to quash, not in a jurisdictional challenge like a special appearance”). If a motion to quash premised on a curable defect in service is or should have been sustained, the remedy is “more time to answer,” not a take-nothing judgment for lack of personal jurisdiction. Fuentes v. Zaragoza, 555 S.W.3d 141, 159–60 (Tex. App.—Houston [1st Dist.] 2018, no pet.); see also Tough Corp. v. Xplore Tech. Corp. of America, No. 03-08-00368-CV (Tex. App.—Austin May 21, 2009, no pet.) (reversing for insufficient service and “remand[ing] the case back to the district court for further proceedings”). In other words, reversal on appeal for insufficient or defective service really means remand for a new trial.

Obstruction is not a crime of moral turpitude (at least in Minnesota)

The Eighth Circuit held in Ortiz v. Barr, 962 F.3d 1045 (8th Cir. 2020), that obstruction of legal process under Minnesota law is not a crime of moral turpitude sufficient to render an alien removable.

Jose Ortiz became a lawful permanent resident of the United States in 2002. Four years later, in 2006, he pleaded guilty to obstruction of legal process in violation of Minn. Stat. § 609.50, subdiv. 2(2) and was sentenced to one year in prison, with a two-year stay on 320 days of the sentence. Seven years after that, in 2013, DHS initiated removal proceedings against him, alleging that he was removable for (a) having been convicted of an aggravated felony and (b) having been convicted of a crime involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i), (iii).

The first round of appeals involved whether obstruction of legal process is an “aggravated felony.” The IJ said yes, and the BIA affirmed. The Eighth Circuit disagreed, holding that “the minimum amount of force required to sustain a conviction [for obstruction of legal process] is less than the level of force required to constitute a crime of violence.” See Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). The Eighth Circuit remanded for determination of whether obstruction of legal process is a crime involving moral turpitude, which resulted in this opinion.

To determine whether a particular crime is a “crime of moral turpitude” under the INA, courts apply the categorical approach. Importantly, the categorical approach is not a historical question; it does not ask any questions about the facts or allegations underlying the actual conviction. Instead, the categorical approach asks whether the elements of the offense “necessarily fit within” the BIA’s generic definition of a crime of moral turpitude. “If there is ‘a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of a crime’ involving moral turpitude, then the conviction does not categorically constitute a crime involving moral turpitude.” 962 F.3d at 1049 (quoting Moncrieffe, 569 U.S. at 191, and others). So you take the generic elements of the crime (not what may or may not have happened or been proved) and compare them to the definition of a crime of moral turpitude. If all the elements fit within the box of the definition, you have a crime of moral turpitude.

The Eighth Circuit discusses the offense of obstruction of legal process first, but I’m going to start with the definition of a crime of moral turpitude. Because the INA itself does not define “crime of moral turpitude,” courts give substantial deference to the BIA’s interpretation. The BIA has developed a two-prong definition. First, the prohibited conduct must be “per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” 962 F.3d at 1048. Second, “the offense must require ‘a culpable mental state’.” 962 F.3d at 1048 (quoting Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1058 (8th Cir. 2016) and others). In the context of Minnesota criminal law, “culpable mental state” means specific intent (i.e., something like evil intent, depraved or vicious motive, or corrupt mind), not just general intent. A general intent offense “is not considered to be a crime involving moral turpitude.” 962 F.3d at 1050 (citing Matter of Solon, 24 I. & N. Dec. 239, 241 (BIA 2007)).

Turning now to the offense of which Mr. Ortiz was convicted: obstruction of legal process is a general intent offense in Minnesota. 962 F.3d at 1050 (citing State v. Serrano, No. A14-0887, 2015 WL 2456982, at *2 (Minn. Ct. App. May 26, 2015)).

Comparing the elements, then: crimes of moral turpitude require specific intent; obstruction of legal process does not. Therefore, obstruction of legal process is not a crime of moral turpitude and conviction for it will not render an alien removable. Because the BIA reached the opposite conclusion, the Eighth Circuit granted Ortiz’s petition for review and vacated the removal order.

Sentencing in the Federal System

A recent case out of the Fourth Circuit—United States v. Bolden, 964 F.3d 283 (4th Cir. 2020)—provides a good illustration of how sentencing works in the federal system.

The Offense

Early in the morning of October 13, 2017 in Burlington, North Carolina, Jermarise Bolden got high on drugs and became paranoid. He “placed two women in a ‘bear hug’, and [began] shooting at shadows on the walls inside the home’s rear bedroom.” Someone called the police about the gunshots. The police arrived and quickly got control of the situation (without shooting anyone). Their protective sweep found two handguns, 2.6 grams of marijuana, and 300 milligrams of cocaine base. Mr. Bolden was eventually taken to a hospital, where he was diagnosed with multiple psychiatric disorders. The Government charged him with one count of being a felon in possession of a handgun, and he pled guilty.

Step 1: The Pre-Sentence Report, or PSR

In the federal system, the sentencing process begins when the probation office prepares a pre-sentence report (or “PSR”) in which it tries to apply the Sentencing Guidelines to the facts of the case and propose a sentencing range. The Guidelines take into account the events (the charged crime as well as relevant uncharged conduct) and the defendant’s criminal history and other characteristics. The events are scored on a point system and all the points are added together to arrive at the Offense Level. Then, the defendant’s interactions with the criminal justice system are assigned points according to rules, those points are summed, and the resulting sum is translated into a Criminal History Category. The Offense Level and the Criminal History Category form the axes of a table in the Sentencing Guidelines, so you take those two, find where they intersect, and there is your “Guidelines range,” usually expressed in months.

Here, the probation office started with the fact that Mr. Bolden pled guilty to being a felon in possession of a handgun. Then, the probation office suggested that an enhancement should apply because he “committed first-degree kidnapping by restraining the two women from the bedroom against their will.” Taken together—the felon in possession charge enhanced by the uncharged relevant conduct of first-degree kidnapping—the probation office recommended a sentence of 120 months (10 years).

Step 2: Objections to the PSR

The second step in the sentencing process: the defendant gets an opportunity to object to the PSR. Here, Mr. Bolden objected to the kidnapping enhancement. The Sentencing Guidelines provide that a sentence will be “enhanced” if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” USSG § 2K2.1(b)(6)(B). The application notes define “another felony offense” as “any federal, state, or local offense . . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” USSG § 2K2.1 app. n. 14(C). To prove the enhancement, the Government has to prove the other felony by a preponderance of the evidence, not beyond a reasonable doubt. See U.S. v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). The “other felony” in this case was kidnapping. In North Carolina, a conviction for kidnapping requires a finding that the defendant acted ” ‘for the purpose of’ achieving certain illicit aims.” Slip Op. at 3–4 (citing N.C. Gen. Stat. § 14-39(a)). Mr. Bolden argued that “his mental condition on the morning of October 13 made it impossible for him to form the specific intent required for kidnapping under North Carolina law.” Slip Op. at 3. Without the kidnapping enhancement, the Guidelines range would have been 63 to 78 months (roughly 5 to 7 years).

Step 3: Determining the Sentence

The third step: the sentencing court rules on the objections (if any), hears other relevant material (like victim statements and the defendant’s statement), and considers the factors in 18 U.S.C. § 3553. Here, the sentencing court sustained Mr. Bolden’s objection, but then did something unusual. The sentencing court ruled that Mr. Bolden “had committed ‘a number of crimes’ — including . . . ‘felonious possession of cocaine’ ” that would support an enhancement similar to the one for kidnapping. Putting the enhancement back into the calculation resulted in a Guidelines range of 92 to 115 months (roughly 8 to 10 years). Ultimately, the court sentenced Mr. Bolden to 102 months’ imprisonment (8 years, 6 months).

Step 4: Appeal

The fourth step: appeal. Here, Mr. Bolden challenged the sentencing court’s sua sponte finding about cocaine possession. The court of appeals discussed two issues: the standard of review and the merits.

Step 4a: The Standard of Review

Regarding standard of review: Where the defendant objected below, the standard of review is abuse of discretion; where the defendant failed to object below, the standard of review is for plain error. The Government argued on appeal that Mr. Bolden’s objection below (“that the government had failed to prove that he possessed a firearm in connection with another felony offense”) did not encompass the cocaine enhancement. The Fourth Circuit disagreed. First, Mr. Bolden objected that the Government failed to prove “another felony offense,” not just kidnapping. And second, even if not, the circumstances below did not provide Mr. Bolden with “a meaningful opportunity to object more specifically. . . . [Mr.] Bolden was not required to assert an after-the-fact and formulaic objection in order to preserve the argument he raises here.”

Step 4b: The Merits

Regarding the merits: Because Mr. Bolden objected, the standard of review is abuse of discretion, which is a lower bar than plain error. Abuse-of-discretion review requires the court of appeals to “vacate a sentence as procedurally unreasonable if a district court makes clearly erroneous factual findings in the course of calculating a defendant’s advisory sentencing range.” Slip Op. at 6 (citing United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)). The problem here is that the sentencing court made no factual findings regarding the connection between possessing the firearm and possessing the cocaine. In cases involving “simple drug possession,” it is not enough that a gun is present or close by. Instead, the gun must have “facilitated, or had the potential of facilitating,” the possession, that it had “some purpose or effect with respect to” the possession. Here, there were no findings about the connection, if any, between possessing the cocaine and possessing the firearm. Accordingly, “on this record—with no district court finding as to facilitation, and no indication of why the district court might have thought there was facilitation here—we are unable to review . . . and must instead vacate the defendant’s sentence and remand for resentencing.” Slip Op. at 11.

Step 4c: The Outcome

Theoretically, there are three possible outcomes: reverse and render, remand for resentencing, affirm. The latter two are by far the most common outcomes. Because the federal sentencing scheme requires the district court to exercise discretion in light of half a dozen factors, the courts of appeals are reticent to reverse one sentence and render another in its place. Instead, the court of appeals most often finds either no abuse of discretion or no plain error warranting remand and simply affirm the sentence below. When they do find error, as in this case, they usually remand back to the sentencing court to try again.

Pro Se at Your Own Risk

The first rule of bankruptcy ought to be: Do not file for bankruptcy unless you have a clearly defined goal you are trying to accomplish. Maybe the bank is about to foreclose on your house or repossess your car. Bankruptcy may be able to stop (or at least delay) those things. Which leads me to the second rule: Do not file for bankruptcy unless you are confident that it will help you accomplish your goal.

Sarah Katherine Sussman lived on Clark Avenue in Tampa, Florida. She held title to the property as trustee for The Sussman Family Trust Living Trust. The Trust had obtained the property from Sarah’s mother, Teresa M. Gaffney, after her father, John J. Gaffney, died in December 2011. For whatever reason (the opinion does not say), the administrator of John’s estate wanted to undo that series of transfers. The administrator sued Sarah and Teresa in state court and obtained a final judgment on October 16, 2017, ordering that title be returned to John’s estate and that Sarah be evicted. Sarah appealed and moved to stay the judgment pending appeal, but that motion was denied. So, on October 24, she filed a pro se petition for bankruptcy, hoping “to obtain a stay of eviction from [the] property.”

It’s easy to see why she did that. Section 362 of the Bankruptcy Code says that the mere filing of a petition for bankruptcy automatically stays “the commencement or continuation” of any lawsuit against the debtor, the “enforcement, against the debtor or against property of the estate” of an existing judgment, and any act to obtain possession or control of property of the estate, among other things. 11 U.S.C. § 362(a)(1)-(3). It seems like an eviction would be the enforcement of a judgment against the debtor, so filing for bankruptcy should have kept her in the house. Right?

Not necessarily. The stay is broad and it is powerful, but it does not cover absolutely everything that might be related to the debtor or the bankruptcy. One major limitation is that it only applies to legal and equitable interests “of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (emphasis added). The automatic stay does not automatically undo things that happened before the petition was filed. There may be other procedures and remedies available to address those things, but the automatic stay does not automatically un-foreclose your house or un-repossess your car. You must file the petition before the foreclosure or repossession happens. Evictions are a little different. Unlike foreclosures and repossessions, evictions generally require a judicial determination of the right of possession before the eviction can occur. In this case, the state court determined that John’s Estate had the right of possession of the Clark Avenue house before Sarah filed for bankruptcy. Accordingly, the bankruptcy court, the district court, and the Eleventh Circuit all held that the bankruptcy petition would not undo that judgment or stop the eviction.

The Eleventh Circuit said that she filed for bankruptcy specifically to stop or delay the eviction. If so, that was a poor strategic choice, and not just because of the nuances of the distinctions between foreclosures and evictions. The first sentence of the Eleventh Circuit’s opinion tells us that Sarah is “a debtor proceeding pro se.” The “Disussion” section says they can only “discern from [Sarah’s] scattershot appeal, two issues sufficiently developed for appellate review.” The footnote to that sentence explains that several other issues were waived because they were either “not raised below or raised in a cursory fashion without citation to authority.” In other words, there may have been other arguments that would have worked but she didn’t raise them effectively. All of which is why you hire a lawyer: to help you know which arguments to make and how best to make them.

Lying police undermine confession

This week’s case comes out of the Tenth Circuit: United States v. Young, No. 18-6221, on appeal from the Western District of Oklahoma. It is marked for publication, but I don’t have the cite yet.

Shane Young was driving early one morning in Woodward County, Oklahoma. The police signaled him to pull over, but he delayed stopping for a while. When he finally stopped, he got out of the car and fled on foot. The police caught him and retraced his steps. They found a small headphones case containing 4 grams of meth. They arrested him, but he invoked his rights to counsel and to remain silent and was released before too long.

Later that day, police returned to Mr. Young’s flight path and found something they had missed before: a black bag containing 93 grams of meth. The black bag changes things. Possession of 4 grams has no mandatory minimum prison term, but possession of 97 grams (the headphones case plus the black bag) carries a mandatory minimum of 5 years in prison. 21 U.S.C. § 841(b)(1)(B), (C). They rearrest him. He admits to the 4 grams but not the 93 grams. He asks for a lawyer, so they stop questioning him (but they do not let him go).

Four days later, Mr. Young is still in custody when he meets FBI special agent Kent Brown. Mr. Young tells Agent Brown about how he’s worried about the effect this arrest will have on his life. He has a new baby, etc. Agent Brown says he wants to help and that he’s “on your side.” Agent Brown showed Mr. Young the federal arrest warrant, but told him that he had spoken to the federal judge on the case. According to Agent Brown, the judge was willing to charge Mr. Young “anywhere from five to ten years” for the 4 grams. But Mr. Young could “physically buy down the amount of time you see in federal prison” by “own[ing] to the information.” According to Agent Brown: “every time you answer a question truthfully, it ticks time off that record, it ticks time off how much you’re actually going to see.” In other words, the more meth Mr. Young admitted to possessing, the less prison time he would get. Agent Brown specifically said: “that’s the way it works.”

Mr. Young was a little suspicious, but he didn’t have any experience in federal court. He wondered if he should talk to a lawyer and said he felt “like I’m buying the farm.” But he bought the farm anyway. He agreed with Agent Brown’s suggestion about how the black bag with 93 grams got there and was charged with possession with intent to distribute 97 grams of meth. By owning to the information, Mr. Young increased the amount of time he was likely to see from 0-20 years to 5-40 years.

A lawyer was appointed for Mr. Young after he was charged. The lawyer moved to suppress the confession as involuntary. Involuntary confessions are not admissible. The Government bears the burden of proving that the confession was not involuntary, that it was “freely self-determined.” In considering the question, courts should consider the totality of the circumstances, including characteristics of the accused and the details of the interrogation and whether there was any “coercive police activity,” such as misrepresentations and promises of leniency.[1]

The district court found that Agent Brown lied to Mr. Young and made promises of leniency. Nevertheless, the district court determined that the confession was voluntary, based mostly on the relative friendliness of the interrogation, Mr. Young’s experience in state criminal court, and the fact that he had been advised of his constitutional rights. Unable to avoid the confession, Mr. Young pled guilty and was sentenced to 188 months’ imprisonment. That’s 15 years and 8 months. So by confessing to more meth, he “physically bought down his time” and increased it from the 5 to 10 years Agent Brown had promised to more than 15 years.

On appeal, the Tenth Circuit was most troubled by Agent Brown’s misrepresentations about how the federal system works. “Although we do not require a law enforcement officer to inform a suspect of the penalties for all the charges he may face, if he misrepresents these penalties, then that deception affects our evaluation of the voluntariness of any resulting statements.” This is a version of a general rule in American law: you don’t have to say anything, but if you do say something, you can’t lie. Here, Agent Brown lied to Mr. Young when he said that confessing to higher quantities would result in a lower sentence. Agent Brown also lied when he said that he would tell the judge about Mr. Young’s cooperation, that the cooperation would “physically buy down the amount of time you see in federal prison,” and that “that’s the way it works.”

Because “that is not the way the federal system works.” Slip Op. at 9. In the federal system, higher amounts of possession tend to result in longer sentences. Cooperation can reduce sentencing ranges, but not enough to overcome the difference between 4 grams and 97 grams. Agent Brown’s lies undermined the voluntariness, and therefore the admissibility, of the confession. The confession should have been suppressed. The conviction must be vacated and the case remanded for further proceedings.

This case gives me hope. Police authority should come from their moral authority, their impeccable integrity, not from their guns. I am glad to see courts holding police to that standard.


Footnotes:

  1. I have omitted the case citations. If you are interested in seeing the cases the court cited, check out the slip opinion at 6–8.

Gambling with your Credit

When I was a kid, we would occasionally have disputes about how to spell things. Settling the matter took about four stages: first, we would both insist that we were right; second, we would escalate our insistence, through raised fists, threatening eyebrows, and oaths taken on our mothers’ lives; third, one of us would dare the other to check the dictionary; fourth, the loser would declare the winner a nerd.

The French, at the end of their kingdom and the beginning of their empire, had a similar idea, only it would spread to all disputes ever. They had this idea that The Law should be simple enough to fit into a single book that everybody could have on their bookshelf. The idea was that two Frenchmen could have any dispute at all and resolve it by going through the four phases I mentioned: (1) I’m right / no, I’m right; (2) I swear I’m right / yeah, well I would bet my last bottle of wine that I’m right; (3) oh yeah? Why don’t you check The Code?; (4) you’re such a nerd.

Only: the law deals with life, and life is more complicated than spelling. In the first place, Napoleon’s “book” has spread to over 3,000 pages. In the second place, the hardest part of practicing law is almost never finding a piece of law to support your position. Rather, it’s deciding which arguments of several would be best and most likely to help you win.

Take this week’s case, In re Nicolaus, out of the 8th Circuit. Anthony Nicolaus ran a business with his brother. They ran into trouble with the IRS, apparently failing to pay withholding taxes. The IRS began collection efforts, so Nicolaus filed bankruptcy under Chapter 7.

Let’s pause for just a second. Chapter 7 is frequently touted as an “easy” way to get rid of debt without paying it. But there are some debts that don’t get discharged in Chapter 7. For example, child support is never discharged, nor is any debt for death or personal injury resulting from a D.W.I. 11 U.S.C. § 523(a)(5), (9). Student loans are almost never discharged. 11 U.S.C. § 523(a)(8). And debts for taxes are very difficult to discharge. 11 U.S.C. § 523(a)(1)(A) (referring to 11 U.S.C. § 507(a)(8) (referring to any tax “to be collected or withheld and for which the debtor is liable in whatever capacity,” including withholding taxes)). So if Mr. Nicolaus wanted to get out of his debt for not paying withholding taxes, Chapter 7 may not have been the way to go.

Back to the case. He files for bankruptcy. The IRS files a proof of claim. He files an objection. The IRS never responds. The bankruptcy court sustains the objection and disallows the claim. He does not have to pay the IRS.

A year later, the IRS files a motion to vacate the order disallowing the claim. According to the IRS, Mr. Nicolaus had to serve the objection not just on the IRS, but also on the attorney general and the local U.S. attorney. Since he had only served the IRS, the order disallowing the claim was invalid for lack of personal jurisdiction. The bankruptcy court agreed, as did the district court on appeal. The Eighth Circuit, however, disagreed. At the time Mr. Nicolaus filed his objection, the rules only required service on the IRS. The requirement of service on the attorney general and the local U.S. attorney were added later. Therefore, the IRS was properly served, and the bankruptcy court had jurisdiction to sustain the objection and disallow the claim. Mr. Nicolaus does not have to pay the IRS.

But that’s largely because the IRS wasn’t paying attention. If Mr. Nicolaus filed for bankruptcy in order to get out of his debt to the IRS, he was taking a major gamble. If the IRS had been paying attention, he could have ruined his credit for nothing.

Stopping Time and the Meaning of “A”

This week’s case comes out of the Tenth Circuit: Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). Judge Bacharach wrote for Judges Holmes and Matheson.

Jose Angel Banuelos Galviz entered the United States in 2006. Around 2009, he received a document from the immigration authorities labeled “notice to appear,” but it did not tell him a time or place to appear. Around 2016, he received a second document, telling him when and where to appear. He showed up. The IJ (or “immigration judge”) ordered Mr. Banuelos removed and denied his requests for asylum, withholding of removal, and protection under the Convention Against Torture. Mr. Banuelos appealed to the BIA (the Board of Immigration Appeals).

While his appeal was pending, the Supreme Court issued its decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). Pereira dealt with a form of relief called “cancellation of removal,” available under 8 U.S.C. § 1229b(1). That provision gives the attorney general, acting through the IJ, permission to let a removable person nevertheless remain in the United States, and potentially adjust to lawful permanent resident status, if he can satisfy four requirements:

  1. 10 years of continuous physical presence in the United States, and
  2. good moral character, and
  3. no convictions for certain specific criminal offenses, and
  4. that his removal “would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child,” so long as the affected spouse, parent, or child is either a U.S. citizen or a lawful permanent resident.

8 U.S.C. § 1229b(b)(1).

The first requirement—ten years of continuous presence—is measured from the time the person enters the United States until the person is served with “a notice to appear under section 1229(a).”[n.1] 8 U.S.C. § 1229b(d)(1). This is referred to as the “stop time rule.” At the time of Mr. Banuelos’s removal hearing, the BIA had held that a so-called notice to appear could stop time even if it did not actually tell you when or where to appear. So even though he received notice of his removal hearing more than 10 years after he entered the United States, the BIA did not consider him eligible for cancellation of removal because he had received a so-called notice to appear just 3 years after entering.

The Supreme Court changed that rule in Pereira, holding that a so-called notice to appear without a time and place does not stop time. In other words, continuous physical presence must be measured from the time you enter the United States until the time you receive a notice to appear telling you when and where to actually appear. Applied to this case: Mr. Banuelos potentially qualifies for cancellation of removal because there were more than 10 years between when he entered and when he received notice of when to appear. Mr. Banuelos asked the BIA to remand back to the IJ to consider his application for cancellation of removal. The BIA denied that request, and he petitioned the Tenth Circuit for review.

The Tenth Circuit granted review and remanded to the IJ to consider Mr. Banuelos’s application for cancellation of removal. The court determined that, in order to stop time, the notice to appear must be a single document containing all the information required in § 1229(a). Both the plain language of the statute and its legislative history mandate this result.

The plain language of the statute reads: “For the purposes of this section, any period of . . . continuous physical presence in the United States shall be deemed to end . . . when the alien is served a notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1). Section 1229(a) defines a “notice to appear” as a written notice specifying certain things, including “The time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G). Therefore, a written notice that does not include the time and place is not a “notice to appear under section 1229(a)” and does not stop time.

But what if you get two documents, one containing some of the information, and another one containing the rest? Some jurists think that the two documents can combine into “a notice to appear under section 1229(a)” and therefore stop time. The Tenth Circuit disagreed, based on the relevant legislative history.

Prior to the enactment of the current section 1229(a), removal proceedings were initiated with two documents: an order to show cause and a notice of hearing. Then, Congress changed the process in 1996:

To simplify removal proceedings, Congress adopted § 1229(a), replacing the two documents with a single notice to appear, which had to include all of the information previously sprinkled throughout the order to show cause and the notice of hearing. Given this congressional intent to replace two documents with one, we should be wary of reading the singular “a” in § 1229 to refer to multiple documents.

Banuelos v. Barr, 953 F.3d 1176, 1182 (10th Cir. 2020) (citing Report of the Committee on the Judiciary, House of Representatives, H.R. Rep. 104-469(I) (1996)).

If two documents were required before, then only a single document is required now. Only if that single document satisfies all the requirements of section 1229(a) (including the requirement of a specific time and place to appear) will it stop time for purposes of cancellation of removal. Because Mr. Banuelos did not receive that single document until more than 10 years after he had entered the United States, the Tenth Circuit remanded to the IJ to consider his application for cancellation of removal.

It should be noted that not everybody agrees with the Tenth Circuit. The court itself noted that, while the Third and Ninth Circuits agree with the Tenth, the Fifth and Sixth Circuits do not. See Guadalupe v. Attorney General, 951 F.3d 161 (3d Cir. 2020) (subsequent notice of hearing does not retroactively cure a defective notice to appear); Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019) (same); but see Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020) (time stops when the person “receives all required information, whether in one document or more”); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019) (same). Given the present administration’s aggressive stance on removal, there are a lot of cases percolating through the federal courts. The Supreme Court may have to resolve the split before too long. In the meantime, if you live in Texas, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, or Michigan, this case may not be helpful to you


  1. Intrepid readers will note that section 1229b(b)(1)(A) does not say that time stops when you are served with a notice to appear. That section says that time stops on “the date of [the] application” for cancellation of removal. But you wouldn’t apply for cancellation of removal until after you had been ordered removed. And you cannot be ordered removed without being served with a notice to appear. 8 U.S.C. § 1229(a). But being served with a notice to appear stops time for continuous physical presence. 8 U.S.C. § 1229b(d)(1). So which one is it—does time stop when you’re served with a notice to appear or when you apply for cancellation? This kind of internal conflict plagues the immigration system. It makes lawyers scared to enter the field, and it virtually guarantees that people representing themselves will trip on something.

Scheming to Hide the Kids

Sometimes in law, there are no winners. The 2018 case of Bos v. Smith, 556 S.W.3d 293 (Tex. 2018), is one of those cases. It contains a long and sordid tale, but the bottom line is that a father sued his former in-laws under Chapter 42 of the Family Code for aiding or assisting his ex-wife in blocking his visitation rights. The trial court awarded him $3 million “for mental anguish caused by [his in-laws’] interference with possessory rights” and $236,000 “for economic damages related to [his] legal defense.” Bos v. Smith, 492 S.W.3d 361, 374-75 (Tex. App.—Corpus Christi 2016), rev’d by Bos v. Smith, 556 S.W.3d 293 (Tex. 2018). The court of appeals affirmed the mental anguish damages but reversed on the economic damages. The Supreme Court reversed the whole thing and rendered judgment in the in-laws’ favor. To try to keep them straight, I’ll refer to the Court of Appeals’ opinion as “COA” and the Supreme Court’s opinion as “SCOTEX.”

The Story

Trisha and Craig were married in 2004. They divorced in 2008 with two young kids, both under 3 years old. Their divorce decree contained a standard possession order modified to address visitation before the kids’ third birthdays. Apparently, Trisha was “stingy” with visitation during the first year and eventually orchestrated a “scheme” to deprive Craig of visitation by coaching her kids to make unfounded accusations of sexual assault. SCOTEX, 556 S.W.3d at 297-99. “DFPS ultimately ruled out all sexual-abuse allegations,” and no charges were filed. SCOTEX, 556 S.W.3d at 298. But Trisha still refused to let Craig see the kids. On August 31, 2011, the trial court “held [Trisha] in contempt and imposed jail time for violating the standard possession order.” SCOTEX, 556 S.W.3d at 298. But, according to Craig’s attorney: “I walked out of this courtroom and I had not touched the button to go down the elevator when I was approached by the other lawyer saying, ‘We’ll sign a parental termination immediately’.” COA, 492 S.W.3d at 374 n.11. The trial court stayed the contempt order to allow time for Trisha to reconsider, but ultimately terminated her parental rights. SCOTEX, 556 S.W.3d at 298-99.

But that’s not the end of the story. Throughout this ordeal, Trisha’s parents had tried to help her with the kids. In fact, the first battle was fought when Trisha asked her mother to take the kids to a birthday party even though it was Craig’s turn to have them. SCOTEX, 556 S.W.3d at 297. Things got really bad really fast. DFPS (more commonly known as “CPS”) got involved, and Trisha’s parents agreed to stay with her and supervise her contact with the children as part of DFPS’s safety plan. But, according to the Supreme Court, they

quickly found their monitoring duties burdensome, and Grandfather began pressuring DFPS for a resolution. At one point, at his wit’s end with the situation, Grandfather told DFPS that (1) Mother was a “perfect” mother; (2) Father was a nut with poor parenting skills; and (3) Father used to abuse his daughters and would brainwash them.

SCOTEX, 556 S.W.3d at 298.

Craig was upset about his in-laws’ actions. After Trisha voluntarily terminated her rights, Craig sued his former in-laws under Chapter 42 of the Family Code for aiding and assisting her in blocking his visitation.

The Law

Chapter 42 of the Family Code says that a “person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.” Tex. Fam. Code § 42.002(a). The available damages include the actual costs and expenses incurred locating the child, recovering possession, and enforcing the possession order, as well as any mental anguish damages. Exemplary damages are available if the interfering person “acted with malice or with an intent to cause harm to the plaintiff.” Tex. Fam. Code § 42.006. And anybody who “aids or assists” the interfering person “is jointly and severally liable” with them if they either (1) had actual notice of the existence and contents of the possession order, or (2) had reasonable cause to believe that an order existed and that their actions “were likely to violate that order.” Tex. Fam. Code § 42.003(a).

The Supreme Court rendered judgment in favor of Trisha’s parents for two main reasons. First:

Chapter 42 does not cover mere schemes. Section 42.003 allows liability for assisting “in conduct for which a cause of action is authorized by this chapter,” and a cause of action is authorized for actually “tak[ing] or retain[ing]” possession of a child or “conceal[ing]” the child’s whereabouts, not for planning to do so.

SCOTEX, 556 S.W.3d at 301.

In other words, Trisha’s schemes weren’t enough, and merely taking sides is not enough. Chapter 42 requires specific action to prevent visitation.

Second, Craig proved “only one specific violation of the standard possession order—the two-hour birthday-party weekend.” SCOTEX, 556 S.W.3d at 301. But he did not prove that his former in-laws actually knew that it was his weekend or that they knew that their actions “were likely to violate” the order. SCOTEX, 556 S.W.3d at 301. He did not prove that they knew what the terms of the visitation order were (i.e., that it was his weekend). And, because the parties had done visitation by agreement for most of the time post-divorce and because of the onset of the DFPS investigation, Trisha’s parents may or may not have known that it was Craig’s weekend and that they should not have kept the kids that weekend.

Without proof of a specific, knowing violation of the possession order, Craig’s claim under Chapter 42 failed.

The Government’s Right to Flood You Out

I was always taught to put your best argument first. Otherwise, the people you’re trying to convince might get caught up on something else and never get to it. In judicial opinions, the court is trying to convince the litigants and the public at large that the court made the right decision. They are so busy, however, that you sometimes come across opinions that are organized more like prose transcriptions of the judges’ notes than a piece of argument. The Fifth Circuit’s opinion in Residents Against Flooding v. Reinvestment Zone No. 17, No. 17-20373 (May 22, 2018) (per curiam) is just such an opinion. To be fair, the opinion isn’t signed, so we shouldn’t necessarily expect anything interesting out of it. Still, this post isn’t meant to criticize, but to consider how the argument could have been structured. 

The case arose when some residents in Houston sued their local government for designing and implementing a stormwater drainage system so that excess stormwater was diverted away from commercial areas and into their neighborhoods, causing floods and interfering with their rights and abilities to use their homes. The district court dismissed the claims, and the Fifth Circuit affirmed.

One of the residents’ theories was that the City’s plans violated their substantive due process rights under the 14th Amendment. To win on that claim, the residents would have to show (1) that there was governmental conduct (2) that interfered with a constitutionally protected right and (3) that was not rationally related to a legitimate government interest. The first element was not in dispute. Clearly, designing and implementing a stormwater drainage system is government conduct. But does it implicate a constitutionally protected right?

The residents said they had a constitutionally protected “right to use their homes.” Slip Op. at 4. I have to admit: I find that rhetorically appealing. Of course you have a constitutional right to use your home. What else does the Third Amendment stand for if not that? But the Fifth Circuit was not persuaded. That phrasing “is too broad and unsupported by caselaw.” Slip Op. at 4-5. But the Fifth Circuit didn’t cite any caselaw saying you don’t have a right not to be flooded out by government conduct. Instead, it just labels the caselaw cited by the residents as “inapplicable.” Slip Op. at 5. I dunno. I’m not convinced.

But “Even assuming that the government projects implicated a constitutionally protected right” — which feels like an unrebutted assumption — “these projects were at least debatably rationally related to a legitimate governmental interest” because “the government objectives were to improve its tax base and the general welfare.” Slip Op. at 5-6. Sure, that’s legitimate. But improving the tax base by flooding one property instead of another? The court might as well have cited Kelo v. City of New London, 545 U.S. 469 (2005).  Do you remember that case? In it, the U.S. Supreme Court said that local governments had the right to force private owners to sell their property as part of a “comprehensive redevelopment plan,” even when that plan involves the local government turning around and selling the property to another private owner. It’s one of the most controversial decisions of this century. If this case had come out of the Ninth Circuit, we’d be hearing calls to revive the House Un-American Activities Committee.

OK. So you think people have a constitutional right to use their homes and that local government shouldn’t interfere with that? Too bad. “This case is analogous to York v. City of Cedartown, 648 F.2d 231 (5th Cir. Unit B 1981). In York, “the plaintiffs . . . alleged that the government’s actions with regard to infrastructure and drainage resulted in ‘water and sewage . . . deposited on [the] appellants’ property’ during times of ‘excessive rainfall’, depriving them of their property rights.  We held that the appellants failed to allege facts that rose to the level of a violation of the U.S. Constitution.”  Slip Op. at 6-7.

Wait, what?  There’s a case directly on point?  Why didn’t you lead with that?  I may or may not agree with you that a local government plan that floods my neighborhood doesn’t “involve” my property, and I may or may not agree with you that flooding one local property instead of another is rationally related to increasing the tax base or that increasing the tax base by itself is a legitimate government objective, but we can all agree that stare decisis is extremely important.  It’s what sets the Anglo-American common law system apart from the French and German civil law system used in most of Europe and Latin America.  In America (and the other common law legal systems), we don’t decide cases by resorting to a dictionary.  We decide them by looking to our collective experience in resolving disputes. 

On-point caselaw wins every time. It would have been totally acceptable for the City to argue that the Fifth Circuit had already decided this exact question back in 1981.  It would have been totally acceptable for the Fifth Circuit to cite York with little more explanation than, “the Residents want us to do x, but that is foreclosed by precedent.”  They do it all the time in criminal cases.  It’s interesting that they didn’t do it here.


I know what you’re thinking. The City won, the Supreme Court didn’t grant cert. Who cares? Well, I started to read the case because I was in Houston during Hurricane Harvey, and I remember the “controlled releases.” Thankfully, I was living in an old part of town that wasn’t built in a flood plain. But I know people whose homes were “implicated” in the “controlled releases.” So I was interested to see how the Fifth Circuit dealt with these issues. My initial sense is that the government ought to be liable for that somehow. After all, government action created the risk of flooding and government action literally caused the flooding. Why shouldn’t they be responsible?

And I gotta tell you: baldly stating that “their [the residents’] claimed right to use their homes is too broad and unsupported by caselaw” just doesn’t convince me.