The annual Construction Industry Outlook Assembly hosted by Ingram’s Magazine was held on May 12, 2016 . Tom Buchanan participated in the Assembly along with 40 other experts in the construction industry, including construction companies, contractor associations, builders, architects, engineers,  electricians, and attorneys.  Talking points included: state of the market, construction technology, supply and demand of workforce labor, competition and margins, and financing and bonding.  The full Construction Industry Outlook Report will appear in Ingram’s May publication.

When a debtor seeks to reaffirm a debt, and the debtor acts pro se with respect to the reaffirmation, the Bankruptcy Code requires a court hearing to approve, unless real property secures the debt. 11 USC 524(c)(6). The 2005 Bankruptcy amendments included a new section 524(m) inserting a presumption of undue hardship where the debtors’ monthly expense exceeds income as shown by schedules on file. The debtor may rebut that presumption, and if so, the court may approve reaffirmation. But, 11 USC 524(m)(2) excepts Credit Unions from this presumption.

At first read, this exception appears to eliminate court approval on any debt to a credit union. In Case No. 15-36323 In Re Cassandra N. Edwards, the Southern District of New York followed Judge Karlin’s lead, in validated a reaffirmation agreement, and held that the credit union exception only applies to a pro se case involving reaffirmation of a debt secured by debtor’s home. The court relied upon In re Cooper, 2012 WL 566070, at *5, 2012 Bankr. LEXIS 604 (Bankr. D. Kan. Feb. 21, 2012) (“The requirements of § 524(c)(6) operate wholly independently of the requirements of § 524(m)(1), and are not affected by the provisions of § 524(m)(2).”). Unlike the requirements of § 524(m)(1), which do not apply to debts owed to credit unions, the only exception to the requirements of § 524(c)(6) are reaffirmation agreements where the debt is a consumer debt secured by real property. Id.

Jason Buchanan has been elected President of the Board for EPEC, which is a nonprofit program. 

EPEC means Empowering Parents which will Empower and improve the lives of their Children.  EPEC starts with the need for a living wage and teaches the parents admitted a trade enabling them to transition off welfare through a living wage.  Studies show that lessening financial stress creates the potential for an improved family environment and increases the likelihood that their children will achieve success. The trade taught is one identified a marketable and transferable skill set that allows them to earn a living wage and provides flexibility required to care for their children.  Based on market research on demand, EPEC’s pilot program teaches animal grooming which pays well, is in high demand in the Kansas City area, and yet the nearest grooming school is 3 hours away.

Moreover, EPEC’s parenting program teaches students the importance of active parenting, higher education, nutrition, coping skills and resources.  The parenting program teaches parents how to identify and regulate their emotions and identify and moderate their child’s emotions. EPEC uses the Love and Logic parenting program and utilizes guest speakers to teach and support parents with their most important job — raising their children and advocating for higher education.  EPEC teaches participants how to choose quality childcare and schools on a limited budget.  EPEC teaches budgeting, health and wellness, and professionalism in the work place.  Finally, in an effort to meet the family’s other needs, EPEC partners with organizations for childcare and housing.

Meadowbrook Environmental Testing Finds No Damage From Herbicides 

[Reprint:  Prairie Village Post, April 5, 2016 – Thomas R. Buchanan referenced]

Extensive environmental testing on the Meadowbrook land set to become a new public park revealed no problematic toxin levels associated with the use of herbicides, pesticides or fungicides on the former golf course land, but did find an area of approximately one-third of an acre likely contaminated by a gas spill.
Johnson County Park and Recreation District and VanTrust Real Estate conducted environmental testing totaling approximately $180,000, according to attorney Tom Buchanan of McDowell Rice Smith & Buchanan, who represented the parks district in the matter.
“The environmental assessment that was done was the most complete you would ever find for a transaction on a comparable piece of property in Johnson County,” Buchanan said. “Johnson County Parks and Rec took to heart the reticence expressed by members of Prairie Village’s governing body…about potential risks associated with golf courses.”
Soil testing throughout the property combined with silt testing from the ponds on the property revealed no problematic toxin levels associated with herbicides and pesticides frequently used on golf course greens.
The study did, however, find a patch of soil near an old maintenance shed where mowing equipment and storage tanks were located that showed signs of hydrocarbon contamination — likely from spilled gas. That area is located to the west of the southernmost retention pond, far from the most concentrated swath of parkland on the northern part of the property.
To remove the contamination, crews will dig up dirt over the area affected by the gas spill and replace it will fresh soil.
Buchanan stressed that both the parks district and VanTrust had gone above and beyond to provide a clear picture of the environmental status of the property.
“A $180,000 expenditure on this exploration is an extraordinary level to try to make sure that the public interest in getting a clean park that is safe for use is met,” Buchanan said.
Johnson County Park and Recreation District Executive Director Jill Geller said the county had been satisfied with the findings and was eager to move through with the closing of the deal.
“Of the 80-plus acres we will be acquiring, there remains a very small piece of property requiring remediation,” said Jill Geller. “Overall this is a very clean piece of land.”

Adam Gasper recently persuaded federal judge, Hon. Brian C. Wimes, to issue an injunction requiring a Colorado company to ship more than $325,000 of product to their local client, a long-time distributor of commercial and industrial tools and building materials.  The parties had a 25-year distributorship relationship that had recently deteriorated.  The defendant purported to terminate the relationship and refused to honor the client’s pending purchase orders.  Given that the client had less than 30 days to try to obtain similar cover product, Mr. Gasper filed suit in Jackson County (then removed to the Western District) asserting various contract and tort claims and requesting extraordinary relief.  The court granted their request for TRO and injunctive relief ruling that an injunction was appropriate to compel the Colorado company to ship inventory per previously placed purchase orders to preserve the status quo between the parties.  Judge Wimes found irreparable harm in that “[a]bsent specific performance, Plaintiff has demonstrated that it will be unable to fulfill orders and suffer damage to its reputation and goodwill.”  The judge ordered all such inventory be shipped immediately and did not require posting of a bond.  In an expedited timeframe, Mr. Gasper litigated multiple motions to dismiss by defendants, a motion for judgment on the pleadings, multiple injunction motions and hearings, a motion for clarification, and an opposition to voluntary dismissal of remaining claims.  The injunction ruling survived multiple collateral attacks by opposing counsel, and the case has now reached its conclusion.

KANSAS CITY, Missouri (February 24, 2016) McDowell Rice Smith & Buchanan, PC, announced that John Bentley Gariglietti of Overland Park, Kansas, joined the Firm as a shareholder on February 22, 2016. Mr. Gariglietti brings with him an active practice in the areas of workers’ compensation, personal injury law, wrongful death and other civil matters. He will join the Firm's Workers Compensation and Litigation & Dispute Resolution groups on the Country Club Plaza.

Mr. Gariglietti graduated from the University of Kansas School of Law in 2010. He received his B.S. degree in Business Administration from the University of Kansas in 2004. For his dedication in protecting the rights of the injured, Mr. Gariglietti was awarded the prestigious "Top 10 Under 40 Attorney Award" in 2015 for the state of Kansas by the National Academy of Personal Injury Attorneys.

Mr. Gariglietti also advocates for workers' rights as a Director for the non-profit organization, the Kansas City Workers Justice Center (KCWJC). Due to his continued advocacy for workers’ rights and countless hours of pro bono work, Mr. Gariglietti has been recognized by the Jewish Vocational Services and Sunflower Community Action as a special volunteer.

Mr. Gariglietti is licensed in both Kansas and Missouri. Additionally, he is fluent in Spanish. 

KANSAS CITY, Missouri (February 1, 2016) – At its 2016 Annual Meeting, the Law Firm of McDowell Rice Smith & Buchanan, PC, announced that R. Pete Smith as Chairman, Thomas R. Buchanan as President, Jonathan A. Margolies, Kristie Remster Orme, Greg T. Spies, and Michael J. Gorman as General Counsel, will serve on the Firm’s Executive Board.

It was also announced that Ania W. Moncrief was elected as a Shareholder of the Firm.  

Contact:
Sherry Newsom
snewsom@mcdowellrice.com
(816) 753-5400

Plaintiff sued Lou Wade's client, a Buffalo, NY-based Defendant, on August 14, 2015 in Wyandotte County, Kansas. Plaintiff’s counsel located in Kansas City, KS frequently files similar claims. By November 6, 2015, Lou Wade and Ania Moncrief obtained dismissal and judgment for their client. The Fair Debt Collection Practices Act (“FDCPA”) imposes strict liability upon debt collectors. Section 1692f(8) bars any symbol or language on the outside of an envelope to a debtor, other than the debt collector’s address or business name, and the name may only appear if it doesn’t indicate debt collection.

Collectors commonly assign a “file number” to accounts. Collectors commonly mail letter to debtors. Often, those letters travel in a “window” or “glassine” envelope. Sometimes, that file number shows through the “glassine window.” In Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014), the Third Circuit found appearance of a file number violated the prohibition under 1692f(8), and imposed strict liability on the collector. No other circuit decision addresses this issue.

Collectively, with the attorney that client hired Mr. Wade to defend, the case was strategically removed to federal court where judges often dismiss specious cases under FDCPA. Along with forwarding counsel, Mr. Wade and Ms. Moncrief filed a 12(b)(6) motion to dismiss, asserting two arguments. First, the statute created an absurdity – read strictly it would prevent a stamp. Second, the file number constitutes “benign” language, which disclosed nothing about debt collection. The Judge declined to follow Douglass, holding the benign language exception required dismissal. The court entered judgment for Mr. Wade's client. Swift justice!

Adam Gasper represented a female client in a lawsuit brought under Title VII of the Civil Rights Act of 1964 which prohibits workplace discrimination. The client had two claims against her employer. She first claimed she was qualified for but did not receive a position because she is a woman. No woman had ever held the position. The client also claimed she did not receive an interview for a promotion into a management position in retaliation for complaining of differential treatment at the hands of her female supervisors. Client claimed that female supervisors treated her differently than both her male predecessor and other female employees.

The jury found in client’s favor on the retaliation claim, awarding $70,952 in damages for emotional distress. The Court will rule on client’s motion for attorney’s fees at a later date.

Paralegal Holly Yocum provided invaluable assistance to Mr. Gasper at trial.

Congratulations to Tiffany McFarland on being selected to the Kansas City Business Journal's 2015 Best of the Bar.

Ms. McFarland was honored in a special section of the Kansas City Business Journal published September 25, 2015, and was quoted as saying:

"Some of the best advice I have received as a family law practitioner is to be open and respectful in communication with clients, opposing counsel and the Court while understanding the practical needs of the case as well as to the emotional strain under which my clients must resolve their family issues."  — Tiffany McFarland