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

FOR IMMEDIATE RELEASE

KANSAS CITY, MISSOURI (August 17, 2015) – McDowell Rice Smith & Buchanan PC, announced that Patrick C. Guinness has joined the Firm as an Associate.  

Mr. Guinness will practice in the Firm’s Litigation & Dispute Resolution Group and the Construction & Architect/Engineering Law Group.  He will primarily focus on construction, business and commercial litigation, representing corporate clients in a variety of legal matters, including commercial disputes, contract claims, employment disputes and construction defect claims.  Mr. Guinness represents both local and national clients in Missouri and Kansas and various jurisdictions across the country.

Mr. Guinness obtained his J.D. in 2011 from the University of Missouri-Kansas City and was a member of the staff of Law Review and Urban Lawyer.  He holds a B.A. from Rockhurst University and is admitted to practice in both Missouri and Kansas.

Contact:
Lisa Stoecklein
lisas@mcdowellrice.com
(816) 753-5400

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The Kansas Tax Amnesty Program runs from September 1, 2015 through October 15, 2015.  Most types of taxes are included for tax periods ending on or before December 31, 2013. The Kansas Department of Revenue Amnesty website sets forth the eligibility requirements at:  http://www.ksrevenue.org/taxamnesty.html.

The Missouri Tax Amnesty Program runs from September 1, 2015 through November 30, 2015. Most types of taxes are included for unpaid taxes that were due on or before December 31, 2014.  The eligibility requirements and conditions are explained on the Missouri Department of Revenue website: http://dor.mo.gov/faq/amnesty.php.

Both amnesty programs provide opportunities to pay unpaid taxes without paying any interest and penalties. If collection costs for cases referred to outside collection agencies apply to Kansas taxes, the collection costs will be reduced to a percentage of the tax only balance.   

Missouri recently adopted a tax amnesty program that runs from September 1, 2015 to November 30, 2015. The program offers relief from the assessment or payment of all penalties, additions to tax, and interest with respect to unpaid Missouri taxes.  The amnesty applies only to tax liabilities due but unpaid on or before December 31, 2014. Missouri taxpayers under civil or criminal investigation for tax-related reasons are not eligible. To take advantage of the amnesty program, taxpayers must apply for amnesty, pay the taxes in full within the amnesty period, and agree to comply with Missouri tax laws for the next eight years from the date of the agreement.

Although the Missouri Department of Revenue has an offer in compromise program, the offer program has not been effectively administered to resolve Missouri tax liabilities based upon a hardship or inability to pay the full amount of the taxes, interest and penalties.  The tax amnesty program creates a small window of opportunity to compromise Missouri delinquencies for the payment of tax only.

Combining the Missouri amnesty program with the IRS “Fresh Start” initiatives and more favorable financial analysis in the IRS offer in compromise program can turn an otherwise hopeless situation of threatened and actual tax enforcement by both the State and the IRS into bright light at the end of the tunnel.  When the IRS grants an offer in compromise and the payments due under the offer are paid, the IRS releases any federal tax liens and the taxpayer must stay compliant for 5 years.  On March 25, 2015, the IRS Acting Director of Collection Policy issued interim guidance that notices of federal tax lien can actually be withdrawn, not just released, after payment of the accepted offer amount.  Withdrawal of the notice of federal tax lien removes it from public record and has the impact of restoring much of the damage the notice of federal tax lien did to a taxpayer’s credit rating.  Participation in the Missouri amnesty program will result in releases of the state tax liens, even though not as effective as a withdrawal, will improve the credit rating especially if combined with the withdrawal of the notice of federal tax lien.         

A commercial aircraft parts supplier was sued in federal court by a Florida-based aircraft parts broker concerning an allegedly defective aircraft auxiliary power unit purchased for a Mexican airline.   The broker sought recovery for breach of contract, and also brought various tort claims against the supplier, including allegations of negligent and fraudulent misrepresentation, and a claim under the Florida Deceptive and Unfair Trade Practices Act. The broker claimed damages in excess of $600,000, plus statutory penalties, punitive damages and recovery of attorneys’ fees. 

On behalf of the supplier, Smith and other Mcdowell Rice attorneys filed a Motion to Dismiss contending that Missouri’s Economic Loss Doctrine bars the brokers negligence and fraud based claims.  They also sought dismissal of the statutory consumer protection claim arguing that the Florida statute has no applicability to a transaction occurring outside the state of Florida, and a similar claim under Missouri’s Merchandising Practices Act would fail as this was a commercial, not consumer transaction.  The Court agreed, granting the Motion to Dismiss in its entirety, without leave to amend.

Bank was sued in 2011 by a former commercial account holder whose bookkeeper had forged checks totaling over $90,000.  The account holder sought to hold the bank liable for a breach of duty under Article 4 of the UCC and for negligence and demanded over $150,000 in liability.  In July of 2014, Rob Maher and Kristie Orme replaced former counsel for the bank.  After some limited discovery, a Motion for Summary Judgment was filed on behalf of the bank against its former account holder in late 2014.

The bank argued that the account holder’s claims failed as a matter of law because the account holder had an obligation to inspect its monthly bank statements and report unauthorized signatures to the bank within the time limits required by both the UCC and the account agreement.  Mr. Maher and Ms. Orme argued that the account holder had failed to timely meet its obligations under the UCC and the account agreement.      

Based on the law cited in the dispositive motion and the factual presentation put together by the two McDowell Rice attorneys, the plaintiff account holder agreed to dismiss the lawsuit with prejudice.  The bank made no payment to the plaintiff and the lawsuit was dismissed with prejudice.

Client, while represented by others, saw millions of dollars in real estate foreclosed and suffered a multi-million dollar summary judgment entered against him and his LLCs in favor of Creditor.  While Client appealed, he separately retained Jonathan Margoliesand Mike Gorman to attempt a settlement with judgment Creditor, along with reacquisition of the real estate at issue.

Mr. Margolies and Mr. Gorman approached judgment Creditor, provided full disclosure of Client’s financial situation, and after several weeks of negotiation, obtained for Client a settlement totaling roughly 50% of the judgment. As part of the bargain, Client reacquired the previously foreclosed real estate. 

Jonathan Margolies: “Full disclosure was the key. In these situations, open and honest communication about financial realities goes a long way.”

Mike Gorman: “It was a good deal for both sides. Our client is now back in business, and the judgment Creditor avoided liquidating the real estate.”

At its 2015 Annual Meeting, McDowell Rice announced that James F.B. Daniels and Greg T. Spies were elected to the Executive Board, along with the re-election of R. Pete Smith as Chairman, Thomas R. Buchanan as President, and Kristie Remster Orme as General Counsel.