I Was Sued In Retaliation For Exercising My Constitutional Rights, Now What? Oklahoma’s New Anti-SLAPP Law May Be Your Answer

April 16th, 2015

slappThe Oklahoma Citizens Participation Act was passed on April 22, 2014, on the 125th anniversary of the Oklahoma 1889 Land Run, Gov. Mary Fallin signed the Act, and it became law on November 1, 2014. The Act gives Oklahomans valuable protections in the exercise of their First Amendment rights. From the bill:

“The purpose of the Oklahoma Citizens Participation Act is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”

The Act provides an early dismissal mechanism for meritless cases filed out of retaliation for one’s exercise of First Amendment rights. If a lawsuit is based on or relates to the exercise of the right of free speech, the exercise of the right of petition, or the exercise of the right of association, the statute applies. Once a defendant demonstrates that the statute applies, a court must dismiss the case unless the plaintiff can present clear and specific evidence of a prima facie case of each element of the plaintiff’s cause of action. If the plaintiff cannot meet that burden, the case is dismissed and the court must award attorney’s fees and sanctions against the plaintiff. Likewise, if the court finds that the motion to dismiss was frivolous or filed solely to create delay, sanctions and attorney’s fees can be awarded against a defendant who files a frivolous motion.  However, just losing the motion to dismiss is not grounds for awarding attorney’s fees against a defendant who files a motion to dismiss pursuant to the Act.

freeThe purpose of a SLAPP suit is to chill the defendant’s speech through costly and emotionally exhausting litigation. SLAPPs (“strategic lawsuits against public participation”) are civil claims or counterclaims filed against individuals or organizations based on their communications about issues of public interest or concern. Oklahoma legislators recognized the need for an anti-SLAPP law to help put an end to litigants using the legal system to retaliate against citizens for exercising their constitutional rights.

The Act is similar to anti-SLAPP statutes in other states, including the Texas Citizens Participation Act.  This is important because the Texas version of the anti-SLAPP law has been found to apply in federal court as well. With no federal anti-SLAPP statute on the books, it is likely that federal courts in Oklahoma will also limit the ability of plaintiffs to escape the requirements of the Oklahoma Citizens Participation Act by filing in federal court.

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Street Law School: What are Your Rights as a (Residential) Landlord?

April 14th, 2015

Click on this link to read a good article on landlord rights from the Oklahoma Bar Association.

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Street Law School: Getting A Criminal Record Expunged Is Getting Easier

January 24th, 2015

An expungement proceeding is a type of lawsuit in which a first time offender of a prior criminal conviction seeks that the records of that earlier process be sealed, thereby making the records unavailable through the state or Federal repositories. If successful, the records are said to be “expunged”. While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.

A very real distinction exists between an expungement and a pardon. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon does not “erase” the event; rather, it constitutes forgiveness. An expungement can be granted only by a judge; while a pardon can be granted only by the President for federal offenses, and the Governor or the State Board of Pardons and Paroles for state offenses.

Generally, expungement is the process to “remove from general review” the records pertaining to a case. The records may not completely “disappear” and may still be available to law enforcement, to sentencing judges on subsequent offenses, and to corrections facilities to which the individual may be sentenced on subsequent convictions. In 2012, and again in late 2014, Oklahoma significantly amended its expungement laws. Persons who did not previously qualify for expungement under the old laws are now eligible.  Records that can negatively impact careers, educational goals, and personal lives, and that are currently freely accessible to the general public on the Oklahoma Supreme Court’s website and the On Demand Court Records website, can now be more easily hidden, including records with the Courts on OSCN.net or ODCR.com (Docket Sheet of the case), and records with OSBI, the Oklahoma State Bureau of Investigation. Anyone’s criminal history is available through the Criminal History Reporting Unit of the OSBI using this form. This OSBI criminal history is the “background check” paid for by employers.

What’s New:

22 Oklahoma Stat. §18/19 Expungement: This erases records from the Arresting Agency, the Court, OSBI, and potentially third party records, and is generally the type of expungement sought. A record erased through an 18/19 expungement is not visible to the public or employers, and cannot be used by law enforcement without a Court order. Eligibility for expungement will usually be on the following grounds:

The person was charged with a misdemeanor, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person has never been convicted of a misdemeanor or felony, no misdemeanor or felony charges are pending against the person, and at least one (1) year has passed since the charge was dismissed;

The person was charged with a nonviolent felony offense, as set forth in Section 571 of Title 57 of the Oklahoma Statutes, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person has never been convicted of a misdemeanor or felony, no misdemeanor or felony charges are pending against the person, and at least ten (10) years have passed since the charge was dismissed;

The person was convicted of a misdemeanor offense, the person has not been convicted a felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the end of the last misdemeanor sentence.

Other Types of Expungements:

22 Oklahoma Stat. §991c Expungement: If a person does not qualify for an 18/19 expungement, they may be able to get a partial expungement under 22 Oklahoma Stat. §991c. After a 991c expungement Court records at ODCR.com and OSCN.net are erased, the Court file is sealed, and OSBI arrest records are changed show a plea of “not guilty,” and that the case was dismissed. You can get a 991c expungement while you are waiting to be eligible for an 18/19 expungement.

22 Oklahoma Stat. §60.18 Victim’s Protection Order (VPO) Expungement: A VPO or restraining order, once expunged, is sealed to the public, and “shall be deemed never to have occurred.” If ever asked, a person “may properly reply … that no such action ever occurred and that no such record exists.” (22 Oklahoma Stat. §60.1 (C)(4))

10A Oklahoma Stat. §2-6-109 Juvenile Records Expungement: Juvenile records already can’t be viewed by the general public. But, a juvenile record expungement may be needed in order to enlist in the military. Once expunged, it “shall be deemed never to have occurred.” If ever asked, a person “may properly reply … that no such action ever occurred and that no such record exists.” (10A Oklahoma Stat. §2-6-109(D))

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Street Law School: How To Make Use of the Noncustodial Parent Visitation Rights Law

November 5th, 2014

visitationThe Noncustodial Parent Visitation Rights Law went into effect on November 1, 2014, and allows noncustodial parents a somewhat simpler way of enforcing their custody schedule when it isn’t being followed by the custodial parent. The new law amends Oklahoma statute 43 O.S. § 111.3, and provides an almost Small Claims Court type procedure that begins with the filing of a MOTION FOR ENFORCEMENT OF NON-CUSTODIAL PARENT VISITATION RIGHTS. The motion must detail the visitation schedule violations and requires that a hearing on the request be scheduled within 21 days, but it could be much sooner in some counties.

An ORDER and Notice of Hearing is issued by the Court, and PROOF OF SERVICE BY CERTIFIED MAIL must be filed at or prior to the hearing. If the other parent is not served at least 10 days before the hearing, the court likely will not hear the case as scheduled, but the matter still must resolved within 45 days.  At the hearing, the Court will evaluate the visitation schedule and the claimed violations, and possibly punish the violator.  If the Court finds that the visitation rights of the noncustodial parent have been “unreasonably” denied or otherwise interfered with by the custodial parent, the Court will enter an order which may provide for one or more of the following remedies:

  1. A specific visitation schedule;
  2. Compensating visitation time for the visitation denied or otherwise interfered with, which time shall be of the same type (e.g. holiday, weekday, weekend, summer) as the visitation denied or otherwise interfered with, and shall be at the convenience of the noncustodial parent;
  3. Posting of a bond, either cash or with sufficient sureties, conditioned upon compliance with the order granting visitation rights;
  4. Attendance of one or both parents at counseling or educational sessions which focus on the impact of visitation disputes on children;
  5. Supervised visitation; or
  6. Any other remedy the court considers appropriate, which may include an order which modifies a prior order granting child custody.

In any event, the Court is required to assess reasonable attorney fees and court costs to the prevailing party on the motion for enforcement of visitation rights. This means that the custodial parent having to respond to the motion may recover her counsel fees if the motion was not well founded.

The new law includes sample forms noncustodial parents can use in lieu of hiring an attorney.

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Another Foreclosure Avoided

April 16th, 2014

10623056-detroit-foreclosure-preventionThis week I was able to obtain a dismissal of a foreclosure case filed in 2011 after my client successfully completed his loan modification. He just needed some time, and that is what I was able to obtain for him.

Good people sometimes need a second chance. Most foreclosures are a result of an unexpected life event, such as:

  • Death in the Family
  • Difficult and costly Divorce
  • Lost Job or had to Change Jobs
  • Health problems with Expensive Medical Bills

And never before has the expression “If I could just buy some time” meant so much. When facing foreclosure homeowners need time to discover their options, analyze their situation and implement an action plan. The most precious commodity is time…And it’s running out.  However, there are various ways that an attorney can get you the time you need.  Sometimes, as in a recent case, it is as simple as filing an Answer to the Petition and requiring the foreclosing lender to actually prove that it is the proper Plaintiff to bring the case.  If it isn’t a Dismissal Without Prejudice is appropriate.  Other times, as in another recent case, deficiencies in the Lender’s Motion for Summary Judgment can be identified, and the Judge may issue an Order denying the Lender’s Motion for Summary Judgment.

Homeowners’ options are changing because of the magnitude of the housing problem.  There is a chance to work things out with the lender if the homeowner fights for that chance. More banks are willing to work with borrowers today simply because they really can’t manage the huge backlog of homes which have already been lost to foreclosure. If the borrower can present a viable plan to repay the loan, the chances of retaining home ownership are pretty good.

The process can go fairly quickly. Here’s a basic rundown of the mortgage modification process and how long each step takes:

• Obtaining the modification package: Getting a loan modification package in the mail can take anywhere from a few days to a few weeks, depending on how long it takes to get a hold of the right loss mitigation manger, and of course, how many other modification requests being considered at the moment.  Lately, the attorneys for the foreclosing lenders have been willing to forward the applications directly to the attorney for the homeowner.  This can speed up the process.

• Submission of the loan modification package: It should take a week to fill it out and get it back to the lender with all the requested documents.

• Underwriting and internal auditing: Once the lender receives the modification package, they will check it over for mistakes, and then send it on for an in-depth review. Assuming that no questions arise regarding the paperwork, this should only take a few days.

• Assignment to a mitigation specialist: After being reviewed by the underwriters (which can take another week or two), the matter will be assigned to a loss mitigation specialist who is authorized to make the final decisions regarding the loan modification request.

• Decision and mitigation process: One of the longest parts of the process, this step can take several weeks as the loss mitigation specialist reviews the request and begins negotiating new loan terms. It may take a week or two or even a month or two to complete – that really depends on the specialist’s case load.

• Completion of the new loan: Once the modification request is approved, the lender will send a packet to fill out and sign within 3-5 business days to complete the modification.

Getting a loan modified can take several weeks to several months to complete. The key is being pro-active and patient, all at the same time.  A foreclosure defense lawyer is necessary to handle the foreclosure case, but homeowners don’t need to hire an expensive company to do their loan modification. On the contrary, doing the loan mod, or a short sale, yourself while your attorney defends the foreclosure case may lead to a better result and thousands of dollars saved.

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Victory on Appeal in BAC Home Loans Servicing vs. Graybill

December 13th, 2013

I am pleased to announce that I have another appellate court victory. This time in an unreported case where I was hired only after the homeowner had already had judgment granted against him by the trial court.

Here is a link to the slip opinion: BAC vs Graybill

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Victory on appeal in DELMAR BYRL GARRETT vs. CARLOTTA GORDON, 2013 OK CIV APP 96 (June 12, 2013).

December 5th, 2013

I am pleased to announce that I have a new reported case (that I won at trial and on appeal):

DELMAR BYRL GARRETT vs. CARLOTTA GORDON, 2013 OK CIV APP 96 (June 12, 2013).

Plaintiff/Appellant Delmar Garrett (Delmer) appeals the September 13, 2011, Journal Entry Order of the district court denying his Motion to Vacate Void Judgment, Vacate Partition Order, and Emergency Motion to Stay Sheriff’s Sale. The judgment sought to be vacated was entered in a divorce suit in which Delmer was named as a party. Because the judgment roll in the divorce proceeding shows that the district court had personal jurisdiction over Delmer at the time the judgment was entered, he is bound by the terms of that judgment. Therefore, the district court correctly denied Delmer’s motion to vacate and we affirm.

Link to Full Opinion.

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Huddleston Law Offices Provides Free Assistance to Homeowners Through Attorney General’s New ‘Resolution Oklahoma’ Program

September 20th, 2013

UPDATE

Phase II of Compensation from the Oklahoma Mortgage Settlement Fund now open Free legal help available through Resolution Oklahoma

OKLAHOMA CITY – Attorney General Scott Pruitt Monday announced the opening of Phase II of homeowner compensation from the Oklahoma Mortgage Settlement Fund. The deadline to apply is Dec. 31 for Oklahoma families who were harmed during the mortgage modification or foreclosure process with five mortgage servicers involved in the settlement. The new phase also extends the time frame for when harm occurred to include 2012. An updated application is available at www.oag.ok.gov or by calling (405) 521-2029.

“Fortunately for Oklahoma, we are the only state in a position to help our homeowners with direct meaningful relief,” Pruitt said. “By launching a Phase II for compensation, we can help those families who may have missed the deadline last year or who were not aware of the opportunity.” Oklahoma was the only state to craft its own agreement with Bank of America, Citigroup, JP Morgan Chase, GMAC and Wells Fargo, which allowed the Attorney General to provide direct compensation. In October, the AG’s Public Protection Unit, which manages the state settlement, mailed the first installment of checks to more than 100 Oklahomans. The amount awarded to Oklahoma families ranges from $5,000-$20,000 – a maximum that could be more than 20 times the money awarded under the federal settlement. The latest estimate shows residents in other states could receive as little as $840, and no direct payments have been made under the federal settlement.

“It is very exciting to be able to provide these Oklahoma families some meaningful relief for the harm caused,” Pruitt said. More than 700 Oklahomans applied for relief from the Oklahoma Mortgage Settlement Fund during Phase I, with an average payment so far of $11,173. Along with direct payments to residents from the Oklahoma Mortgage Settlement Fund, Oklahomans also qualify for portions of two federal settlements. The first federal settlement requires banks to work with homeowners on short sales, principle write-downs and mortgage modifications. So far, Oklahomans have received an average of $30,737 in mortgage assistance with this settlement.

A second federal settlement from the U.S. Department of Treasury’s Office of the Comptroller of the Currency is providing direct payments of $300 to homeowners who qualify. For Oklahomans who are still in their homes and need help to avoid foreclosure, the AG’s Office has created a program called Resolution Oklahoma that provides free legal assistance. Assistant attorneys general have found that homeowners have better outcomes during the mortgage and foreclosure process when they have legal representation. The first part of Resolution Oklahoma is in partnership with Legal Aid Services of Oklahoma to provide free legal assistance for lower income and older Oklahomans. The program is provided by a grant from the Oklahoma Mortgage Settlement Fund.

The second part of Resolution Oklahoma is for homeowners who do not qualify for income-based assistance. These homeowners can apply for a voucher worth up to $5,000 in legal services through the AG’s Office. The voucher application must be completed by homeowners and their attorneys of choice and submitted to the AG’s Public Protection Unit for approval. Once approved, the attorneys will provide the services needed and submit the invoices to the AG’s Office for payment after the work is complete.

All homeowners can apply for assistance through Resolution Oklahoma, no matter their mortgage company. Voucher applications are available online at www.oag.ok.gov, by e-mail at PublicProtection@oag.ok.gov or by calling (405) 521-2029.

To contact Legal Aid Services of Oklahoma, call (888) 534-5243 or go online to www.oklaw.org.

For more information on the Treasury federal settlement, call 1 (888) 952-9105 or go online to www.occ.gov/topics/consumer-protection/foreclosure-prevention/correcting-foreclosure-practices.html.

To access the main federal settlement, contact your mortgage servicer at one of the following numbers: Bank of America: (877) 488-7814 Citigroup: (866) 272-4749 GMAC: (800) 766-4622 JPMorgan Chase: (866) 372-6901 Wells Fargo: (800) 288-3212

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OKLAHOMA CITY – The Attorney General’s Office and Legal Aid Services of Oklahoma (“LASO”) are providing free legal help to homeowners who are facing mortgage issues or foreclosure, and Huddleston Law Offices has been retained by LASO to assist and consult with LASO staff and homeowners that call LASO.

The program – Resolution Oklahoma – is designed to help Oklahoma residents stay in their homes or seek the best outcome for their situations. The program is provided by a grant from the Attorney General’s Oklahoma Mortgage Settlement Fund.

The fund was created last year, following a settlement by the AG’s Office with five of the nation’s largest mortgage servicers. Mortgages do not need to be with one of the five servicers to apply for the Resolution Oklahoma program.

“We signed a separate Oklahoma Mortgage Settlement so we could craft solutions that were best for our state,” Attorney General Scott Pruitt said. “Throughout this process, we found homeowners fared better with the help of an attorney. Through Resolution Oklahoma, we will be able to provide this critical legal assistance to Oklahoma families.”

Oklahomans with lower incomes or seniors should first contact Legal Aid Services of Oklahoma to determine if they qualify for income-based assistance under Resolution Oklahoma. Homeowners who do not qualify for income-based need from LASO can then apply for a Voucher worth up to $5,000.00 in private attorney legal services through the AG’s Office under the Resolution Oklahoma program.

The voucher application must be completed by homeowners and their attorneys of choice and submitted to the AG’s Public Protection Unit for approval. Once approved, the attorneys will provide the services needed and submit the invoices to the AG’s Office for payment once the work is complete.

Voucher applications are available online at www.oag.ok.gov, by e-mail at PublicProtection@oag.ok.gov or right here: AG Financial Aid Application.

To contact Legal Aid Services of Oklahoma, call (888) 534-5243 or go online to www.oklaw.org.

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Street Law School: I Signed A Non-Compete Agreement With My Old Employer, Now What?

August 19th, 2013

contractIs your Oklahoma law based non-compete agreement with your old employer enforceable? The short answer is, in all likelihood, “No”.

If you are in Oklahoma the non-compete agreement is not enforceable under 15 O.S. 2001 §219A. With a couple of exceptions, Oklahoma law is clear that a former employee is allowed to work in his or her chosen business or industry even if a piece of paper he signed says otherwise.

Competition is allowed, and Oklahoma law only prohibits a former employee from soliciting the “established customers” of the former employer. An employer who invest its’ resources in training an employee and has disclosed confidential information to the employee still has ways to protect itself. A strong employment agreement providing protection for confidential information and trade secrets goes a long way to protect an employer’s interest. Nevertheless, the Oklahoma Legislature, in utilizing the term “established customer,” clearly had in mind those customers wherein a relationship was ongoing and anticipated to continue into the future. Thus, past and one off customers are fair game. Moreover, if the non-competition agreement fails to properly define its present and established customers, so that they do not stretch to encompass temporary or single-event relationships, the agreement is void and even those customers are fair game.   HOWARD v. NITRO-LIFT TECHNOLOGIES, L.L.C.2011 OK 98273 P.3d 20.

To sum it up, a former employee can compete against his former employer. However, if he signed a carefully worded and strictly limited non-compete agreement, he cannot do it using the employer’s confidential information or “established” clients.

If you appreciate this post, you are encouraged to share it on any of the social networks you use. Twitter, Facebook, and Linkedin buttons are supplied below.

Thank you.

Brian

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Street Law School: The “Stand Your Ground” Law

August 2nd, 2013

standyourgroundmap_620x350“Stand-your-ground” laws were first adopted in the United States by the State of Florida in 2005. Since 2005, thirty-one states, including Oklahoma, have enacted some form of stand-your-ground law, in which a person is granted certain immunities against the use of deadly force to defend against an “intruder”.

As should be expected, the stand-your-ground law has resulted in the increased use of the defense of “self-defense”, including in the case of the killing of Trayvon Martin. The Zimmerman case focused new attention on the Florida “Stand Your Ground Statute” and the breadth of its protection for individuals who claim to have used deadly force in the face of reasonably perceived deadly force.

Interestingly, there was no pre-trial “Stand Your Ground” Motion to Dismiss in the Zimmerman case. Instead, Zimmerman’s defense waited until trial to present Mr. Zimmerman’s claim of self-defense. So, what is this immunity conferred by the “Stand Your Ground” Statute, how is it different from the trial defense of self-defense, and why didn’t Zimmerman attempt to cloak himself with immunity under the Statute?

Before the stand-your-ground law, a person was not permitted to resort to deadly force in self -defense without first using every reasonable means within his power to avoid danger, including retreat. Now, the stand-your-ground law eliminates the duty to retreat and confers “the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” 776.012 Florida Statutes. In Oklahoma, the law is found at 21 O.S.Supp.2006, § 1289.25.

To make a citizen’s assertion of his right to self-defense independent on any duty to first try to retreat from the danger, the Oklahoma legislature enacted 21 O.S.Supp.2006, § 1289.25(F), which immunizes those who are “not engaged in an unlawful activity”, and are acting in self-defense, from both civil suit and from criminal prosecution. Meaning, a person who claims to have “stood his ground” in the use of force can move to dismiss any case brought against him, civil or criminal, where he can show such force was justified. In the criminal context, a defendant may move for a pre-trial “stand your ground” hearing where he needs only to prove justification for his actions by a preponderance of the evidence. In the Trayvon Martin case, if Mr. Zimmerman had proven he had properly “stood his ground”, the criminal case against him would have been dismissed without the need for a trial.

But, Zimmerman withdrew his request for a pre-trial “stand-your-ground” motion. Why? At the pre-trial hearing, Zimmerman would have had the burden of proving that he properly acted in self-defense by a preponderance of the evidence. At trial, the burden shifted to the State to disprove Zimmerman’s claim of self-defense beyond a reasonable doubt.  This is a difficult burden of proof, especially in cases where there is only one person left to tell what happened.

Zimmerman’s attorneys may have thought that their chance of succeeding at the pre-trial motion hearing was slim, and didn’t want to take a chance that potential jurors would hear that the Judge had rejected the claim of self-defense, thereby possibly leading potential jurors to conclude that the self-defense claim wasn’t credible. As we know, it was a gamble that paid off.

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