Yet Another Discipline of A Business Litigator

As a commercial collection attorney, I am often asked what the difference is between a commercial collection attorney and a retail collection attorney. Commercial refers to business to business, as opposed to retail, which is business to person.

The next inquiry is what is the difference between a commercial collection situation and a breach of contract situation? To answer that question, I must first answer the question, what is a breach of contract? A business contract creates certain obligations that are to be fulfilled by the parties who entered into the agreement. Legally, one party’s failure to fulfill any of its contractual obligations is known as a “breach” of the contract. Depending on the specifics, a breach can occur when a party fails to perform on time, does not perform in accordance with the terms of the agreement, or does not perform at all. So, how does this differ from a commercial collection situation? Generally, money is at the crux of the situation. Commonly, the right and/or remedies in a commercial collection situation are already well established. The only major issues are how much is owed by one business to the other business and what is the likelihood of success for collection of that debt. In other words, the contract has already been breached.

Commercial debts are not like fine wine; they do not become better with age! Small/medium businesses tend to hold on to their commercial accounts far too long. The chief advantage of turning over an account to a commercial collection attorney is an increased likelihood of a successful outcome. The old expression, the squeaky wheel gets the grease, rings true.

What makes a good commercial collection attorney? The immediate reaction is the one who gets the money back. That may seem to be the correct answer, but the better answer is one who can accurately review the quality of the potential claim, which actually means its ultimate collectability. If the claim is eventually uncollectible, a business is better off to cut its losses and move on. Why spend good money and resources when, at the end of the day, the business will get nothing? Sometimes this is an emotional decision. But it should not be; it is a simple cost analysis. Should one spend more time, money and energy, only to get little, if anything, in return? Additionally, pursuing a claim also means that the business may be spending time and effort away from its main goal, namely growing and developing the business.

A seasoned commercial collection attorney is your best defense against being taken advantage of either as a creditor or as a debtor. Such an attorney can help come up with strategies either to get you the money that you are owed or to protect you from overeager creditors. If you are a creditor, a commercial collection attorney can help you develop a strategy to put you in the best possible position to be able to recover any money due the company. If you are a debtor, a commercial collection attorney can help provide advice to try to protect your assets and offer alternatives to resolve the situation.

At the end of the day, I, as a seasoned commercial collection attorney, thoroughly investigate my business clients’ commercial/corporate goals and apply my many years of experience to provide advice based on principled thinking that not only has their backs, but their futures, too. If you are caught in the crosshairs and need someone to talk with, call me at (781) 237-0033 x236 or email me at ssk@kongreen.com.


A Firm Decision: Returning to the Practice of Law

I am well past the days of sippy cups and Cheerios; even the days of Little League games and surviving kids’ frenetic birthday parties are in the rearview mirror. With two young men launched, I am facing just one more high school graduation, and one more college application challenge. So, the time has come for me to do what makes me happy, fulfilled, and proud: activate my attorney status with the Massachusetts Board of Bar Overseers and GO FOR IT!

That is exactly what I have done, enthusiastically landing here at Konowitz & Greenberg, PC. Could there be a better fit? A place where I am not the shortest or the oldest? A firm where attorneys don’t just talk about being family-friendly but indeed, the partners, Steven and Karen, are siblings! And most importantly, a law firm that serves its clients with the utmost respect, talent and compassion.

My interest in law germinated during my college years at Oberlin, a small liberals arts school with a reputation for progressive politics. As a psychology major, I became fascinated with the laws surrounding the involuntary commitment of individuals with psychiatric disorders. Back in the day when an internship was one of the many ways a college student could choose to spend the summer – having since evolved into practically a mandatory credential – I sweated away the summer in the Public Defenders’ Office at St. Elizabeth’s Hospital in Washington D.C., trying to catch a glimpse of John Hinckley. Fast forward, I graduated college, worked as a real estate paralegal in a large Boston law firm and went on to law school at Northeastern University. What an amazing group of classmates, ranging in age from 23 to 66! Immersive class discussions, hilarious skits parodying law school and lawyers, and unique clerking experiences all followed.

I knew I wanted to become a practitioner, and I was intrigued by the range of available specialties. What better way to learn about the numerous and varied practice areas than to clerk after graduation – which I did, for two years, in the Massachusetts Trial Courts. Mission accomplished, I joined a mid-size Boston law firm and became a litigator, practicing in such areas as employment, banking, business, real estate, discrimination and domestic law. It was a great run of over ten years but by then, with two small children and the desire for another, it was time to stow the briefcase in the closet for a few years.

Well, it is now a little more than a “few years.” As is often said about having children, “the days are long, but the years are short.” I’m certain that none of you parents will be the least bit surprised that my hiatus was longer than anticipated. And I am grateful to my husband that we had the ability to do things the way that we did. No doubt, my 16-year old daughter is thrilled now that I have another focus; her only regret being that I need the car to drive to K & G, thereby demoting her to passenger-only status.

Feeling almost as if I had been a member of the Witness Protection Program, I wasn’t sure how comfortable I would be shedding my cover and becoming an “Esq.” all over again! But, funny, with the support and confidence of my K & G colleagues, it all came flooding back to me in very short order. The biggest challenge, as you can probably guess, has been catching up with all of the technology. Luckily, I have my own Genius Bar in my family: three children and a husband (less up-to-date than the other Geniuses!). And I have our wonderful office manager, Karen, and our star junior associate, young Kassandra!

While I intend to continue my practice in litigation and general business law, I also plan to expand my specialty areas to include consultation on work place issues, including
rights and responsibilities, with respect to both employers
and employees.

So, with the support of K & G, I am set and ready to share my expertise with you, resolve your legal problems and, most importantly, improve the quality of your life. Can’t wait to meet you!


Beginner Home Buyer Basics

Envision yourself walking through a house (or condominium) for sale. As you walk through, you see the backyard is a perfect place for your dogs and children to play. The dining room would be great for hosting friends and family for the holidays. The living room looks perfect for binge-watching your favorite show. This could be your new home. Buying your first house is an exciting time, but this monumental new beginning is not worry-free. Before this house becomes your home, you must be cognizant that many issues may arise that can cause unease, from needing small repairs to serious legal issues that affect your ability to own the property. However, certain steps can be taken to ensure that you are protected and that these issues are minimized.

Even though the house is as beautiful in person as it was in the staging photos, someone must take a deeper look into the house, meaning an independent inspector. Even if the seller hired an inspector, you must hire your own inspector to make sure that your interest, as the buyer, is shielded. The seller’s inspector might feel no particular allegiance to the seller, but regardless, it is important to remember that inspectors, like the rest of us, are all human who can make mistakes or miss things. This is an additional layer of affirmation to ensure there are no issues, such as leaky plumbing, lead, or mold, which have been overlooked or are just harder to unearth, turning your dream home into a nightmare.

Owning a property not only means that you own the land and whatever structures on it, but you also own the title to the property. Similar to the way in which the inspector examines the physical property for any unwelcome surprises, the title to the property must also be examined because title defects can cloud a title to a property and prevent free and clear ownership. Some title issues, such as missing mortgage discharges, easements, and liens, are common and will typically be revealed by the title inspection, but some title defects, such as fraud and forgery, can be hidden and more difficult to pinpoint. If these defects arise post-sale, it will likely cost a substantial amount to remedy. Title insurance can protect buyers from financial loss stemming from an undetected title defect. While this is merely an option,it is worth careful consideration to ensure that your interest in your home remains safeguarded. Moreover, it is to your advantage to ensure the title is clear prior to your purchase. Don’t let someone else’s headache become yours.

The purchase and sales agreement (“P & S”), which governs the terms and conditions between the seller and you until the closing, must be reviewed by an attorney. Every property is unique, which is why that house you wish to buy is so special to you. Thus, every real estate transaction is unique and every P & S governing a transaction is unique. Once the P & S is signed, you, as the buyer, are bound by its terms, and retracting is considered a breach of contract. Prior to signing, consulting with attorney, who will know what issues to hone in on with the P & S, can help ensure that you, as the homebuyer, fully understand the terms contained in the P & S before being bound by them. An attorney can also negotiate additional terms and modifications that benefit or protect you. For example, under Massachusetts common law, the buyer bears the risk of loss, meaning that, absent a provision stating otherwise in the P & S, in the event that that house gets destroyed by a fire, the buyer is liable. The P & S must contain language that shifts the risk of loss away from the buyer and onto the seller, who likely has homeowner’s insurance to address such disasters.

Purchasing a house is a wonderful event, but the process can be riddled with legalities. Taking precautions is the key to preventing any issues from ballooning. When you are preparing to turn a new house into your dream home, the costs of these precautions are small prices to pay for peace of mind.


What Will They Think of Next? Baby Born in Dallas to Woman without Uterus

Recently, a woman in Texas born without a uterus gave birth to a child. (https://tinyurl.com/yaangd5q) According to the article, there have been at least 16 uterus transplants, the first one in Sweden, several years ago.

There are many women who do not have a uterus. Some are born without, while others lack a uterus because of medical reasons. Previously, a woman without a uterus who wanted to build a family would have had to rely upon adoption or some form of assisted reproduction technology by traditional surrogacy or gestational carrier arrangement. Now, she may carry herself!

Let me explain a few terms and concepts.

Traditional surrogacy refers to a contractual arrangement whereby a woman agrees to have her egg fertilized with the intended father’s sperm, or donor sperm. When the child is born, Massachusetts requires the child be adopted by the intended parents, which cures the parentage question. Mass. Gen. Laws Ch. 210 § 2. In Massachusetts, the surrogate’s parental rights may not be terminated by contract. R.R. v. M.H., 426 Mass. 501(1998).

A gestational carrier is a woman who agrees to have an in vitro fertilized embryo, to which she has no genetic relationship, implanted into her uterus, and carry to term. The gestational carrier agrees to relinquish her parental rights upon the birth of the child. The egg and/or the sperm may be the intended parents or donated. Massachusetts Probate and Family Courts recognize intended parents as the legal parents and issue pre-birth orders. Culliton v. Beth Isr. Deaconess Med. Ctr., 435 Mass. 285 (2001). No subsequent adoption is needed.

Uterus donors may be dead or alive. Prior to the transplant, the woman’s eggs are retrieved, fertilized and the embryos frozen. The embryos are not implanted until at least a year has passed since the transplant, to ensure the womb is functioning as it should. The baby is delivered by a cesarean section. A transplanted uterus must not remain permanent because of the potent drugs required to avoid organ rejection.

If there is no success in the back seat of Daddy’s Lincoln, and the dependable turkey baster is just not reliable enough, good old-fashioned research has found another way. We have come a long way, baby!!!!!

Kudos to Attorney Peggy Swain of Maryland, the AAARTA Director, who shared the Cullman Times Article on the Academy Listserv.


Our House

Our house is a very, very, very fine house with two cats in the yard, Life used to be so hard,
Now everything is easy …… (Crosby, Stills and Nash)

Recently, I overheard a conversation between a father and son. The son was think of buying a house, and they spent the entire conversation only on money issues. While money issues are obviously important, there are more issues. This made me think that while buying a house is a grueling process taking from days up to a few months, or maybe even years, numerous first-time buyers make mistakes that can be easily avoided. Here are a number of issues to think about:

• Letting your emotions control your decisions! Buying a house can be a long and frustrating process. These days, starter houses go quickly, and it’s common for first-time buyers to experience rejection on the first offers they make. In this kind of environment, it’s easy to fall in love with a house that’s out of your budget, or get caught up in the heat of a bidding war and end up paying more than you expected. “It’s OK to get excited when you think you’ve found your house, but you don’t want to put yourself in a bad spot,”

• Being Too Picky! Go ahead and put everything you can think of on your new house wish list, but don’t be so inflexible that you end up continuing to rent for significantly longer than you really want to. First-time buyers often have to compromise on something because their funds are limited. You may have to live on a busy street, accept outdated decor, make some repairs to the house, or forgo that extra bedroom. Of course, you can always choose to continue renting until you can afford everything on your list. You’ll just have to decide how important it is for you to become a house owner now rather than in a couple of years.

• Lacking Vision! Even if you can’t afford to replace the hideous wallpaper in the bathroom now, it might be worth it to live with the ugliness for a while in exchange for getting into a house you can afford. If the house otherwise meets your needs in terms of the big things that are difficult to change, such as location and size, don’t let physical imperfections turn you away. Besides, doing house upgrades yourself, even when you have to hire a contractor, is often cheaper than paying the increased house value to a seller who has already done the work for you.

• Being Swept Away! Minor upgrades and cosmetic fixes are inexpensive. If you’re on a budget, look for houses whose full potential has yet to be realized. Also, first-time buyers should always look for a house they can add value to, as this ensures a bump in equity to help you up the property ladder.

• Compromising on the Important Things! Don’t get a two-bedroom house when you know you’re planning to have kids and will want three bedrooms. By the same token, don’t buy a condo just because it’s cheaper when one of the main reasons you’re over apartment life is because you hate sharing walls with neighbors. It’s true that you’ll probably have to make some compromises to be able to afford your first house, but don’t make a compromise that will be a major strain.

• Not Thinking About the Future! It’s impossible to perfectly predict the future of your chosen neighborhood, but paying attention to the information that is available to you now can help you avoid unpleasant surprises down the road. What kind of development plans are in the works for your neighborhood in the future? Is your street likely to become a major street or a popular rush-hour shortcut? Will a highway be built in your backyard in five years? What are the zoning laws in your area? Is there is a lot of undeveloped land? What is likely to get built there? Have house values in the neighborhood been declining?

Once you have found your dream house, and you have avoided many of the first-time buyers mistakes, then it is time to call you attorney before you sign and contract obligations.


The K&G Brand: Attorneys & Counselors at Law

Attorney & Counselor at Law: Isn’t that redundant? No, you want me to be a counselor so that you don’t need me as an attorney. As a counselor, I’m a coach—an expert trusted advisor directing from the sidelines. As an attorney, I’m in the game calling plays on the field as your agent.

In 2017, three different client situations arose and I noticed how my dual roles as a counselor and attorney came into play:

  • My acumen as an attorney and counselor at law is best described as being a listener and a mentor.
  • I work with individuals and companies as a partner. My clients rely on me to thoroughly think about their business goals and apply my many years of experience to provide advice based on principled thinking that not only has their back, but also their future.

The three clients were two high end executives ready to launch new careers in new companies, and a business corporation involved in a convoluted contract dispute.

Each client knew that they would benefit from my outside insight. They knew that I would see what they could not see. They are on the outside looking in. I would observe their life, ask questions and gather facts, and resolutions would begin to emerge. It is my job to help them clearly see their options and the decisions which will provide fresh insight. For Executive A, we discussed the value of a base salary versus a year-end bonus. After several chats, Executive A understood that the real upside was going to be his bonus, not his salary. He was able to negotiate a new bonus at twice the amount of money. For Executive B, we discussed his ability to maintain an important lifestyle aspect. This lifestyle enables him to perform certain charitable work. He was able to negotiate an acknowledgement that he would be unavailable weekly for a certain portion of the day, and still maintain his new position. As for the Business Corporation, it was time to stop fighting this battle, regroup, and move on in a completely different, new, and exciting direction.

As an excellent listener and strategist, I have trained ears to hear my clients’ goals and then translate them into actionable next steps. My clients help me develop strategies to increase our success and harness the power of us working as partners. As a partner, I ask specific questions about their personal and professional life to ensure that they’re an example of excellence. For instance, I talk about marriage and family, lifestyle, nutrition, exercise and other disciplines: as for Executive A, it was made clear in his employment contract that there would be very limited overnight travel; as for Executive B, he had a national presence, aside from his new position, and we carved out his ability to speak and write blogs; as to the Business Corporation, the “fighting” was having an adverse effect upon the CEO’s health, the change in strategy reduced his stress level.

Is it redundant? No! In connection with our move we changed our tagline from just “Attorneys” to “Attorneys and Counselors at Law.” Why? Because either as a coach or an attorney we are very deliberate in our advice and our approach. At K&G, these roles are interchangeable.


Massachusetts Legislators: Shame on YOU

Full Disclosure: As of this article going to print, the jury, officially, the members of the Massachusetts House and Senate are still out. On Tuesday, May 16, 2017, the Joint Committee on Public Health held a hearing on equal access to birth records for all persons born in this state who happen to have been adopted during a particular span of years: July 17, 1974 to January 1, 2008. All those who fall outside of the time line are exempt from this barrier.

And why say shame on the Massachusetts Legislators? Because this is not the first time bills to right this wrong have been filed, only to be sent out to committee and never heard from again. This issue has been kicked around the State House since 2015. Thank you, Sean Garballey and Kate Hogan, for presenting the bill in the House: Bill H. 1163. Thank you James Eldridge for presenting the bill in the Senate: Bill S. 1195. And thank you to all of the legislators who joined as petitioners.

Massachusetts has always been ahead of the wave: single parent adoptions, same sex adoptions, same sex marriage, enforceable open adoption contracts for contact, pre-birth orders in gestational carrier agreements, as well as so many other family issues for which I applaud our courts. And yet, our legislature falls flat when considering the needs of all persons who were born in Massachusetts and subsequently adopted.

Let’s hope the Joint Committee on Public Health has listened carefully. The current statute: M.G.L.Ch. 46 s.2B precludes people adopted who happened to be born in Massachusetts between July 17, 1974 and January 1, 2008. WHY? Those opposed assert that anonymity was promised during those particular years for mothers who gave birth in Massachusetts and made an adoption plan.

There is no good or valid reason why this statute should remain as is for several basic and constitutional reasons:

  1. The premise upon which opponents rely, that mothers who gave birth in Massachusetts between July 17, 1974 and January 1, 2008, and made an adoption plan, were promised confidentiality is false. The Massachusetts Surrender is an unconditional and voluntary surrender of one’s child. M.G.L.Ch. 208 § 2. Any promises made to mothers or fathers premised upon the voluntary termination of their parent rights are prohibited and if true, would void the surrender.
  2. The statute is in violation of the Equal Protection Clause of the 14th Amendment of the United States Constitution.
  3. Courts of competent jurisdiction have overruled this so-called promise of anonymity countless times, based upon a showing of good cause, a discretionary standard.
  4. Biological family medical history is key to prevention, early diagnosis and treatment.

Perhaps by the time this article goes to print, it can be thrown out with yesterday’s newspaper.


Adult Adoption: Choosing a New Family

Adult adoption is legal in most states and is more common than you think. Why would one adult wish to adopt another adult? The most common reasons for an adult adoption are formalizing an existing parent-child relationship between a former foster child and a foster parent, formalizing an existing relationship between a step child and a step parent, and creating legal inheritance rights within a relationship.

The requirements in each state may differ, but overall the process is fairly straightforward and less complicated than the adoption of minor children where the court must consider the parental fitness of the adoptee’s parents, the ability of the parent to support the adoptee and what is in the best interest of the adoptee. In Massachusetts, there are few requirements. First, an adult may adopt someone who is younger as long as the adoptee is not a spouse, brother, sister, uncle or aunt. Second, if the adult petitioning the court for adoption is married, the spouse must also join in the adoption. Third, the adoptee must consent to the adoption as is the case for the adoption of any person over the age of 12. Fourth, Massachusetts further requires that if the adoptee is married, the spouse must also consent to the adoption, but the consent of the adoptee’s birth parents is not required. Finally, the court requires a statement of affidavit of the petitioner(s) explaining the parent-child relationship and reason for the adoption. The adoptee has the option of requesting a new name and new birth certificate, but neither is required.

Whether intended or not, adult adoption creates inheritance rights. The adoption gives the adoptee the right to inherit from the adopter as a legal child under a will and under the laws of intestacy which is when someone dies without a will and the state dictates who can inherit, and in what order of preference.

In Massachusetts, we are fortunate that our adoption statute supports and encourages adult adoptions and the formalizing of existing parent-child relationships. Our office has handled numerous adult adoptions, each with its own set of unique circumstances. Recently, we have represented step parents wishing to formalize the long term and loving parent-child relationship with a step child, a couple who adopted their former high school exchange student from Europe, now married, and to whom they had grown close over the years, and an aunt who adopted the adult niece whom she raised, after the niece’s mother passed away. In each instance, the adult adoption enabled the adult adoptee to choose and become part of a new family. Even for an adult adoptee, an adoption can provide comfort and security by giving legal permanence to an emotional bond.


Before You Say, “I Do”

It is no secret that divorces tend to be emotionally painful, protracted, and very expensive. The filing for divorce is only the beginning and these issues are usually brought on when the parties are determining the terms of the divorce who keeps the house, what happens to the money in joint bank accounts, whether there will be spousal support, etc. One way to minimize the difficulty of this process is to have a premarital agreement, colloquially referred to as a “Prenup.”

In situations where one partner expresses any hint of wanting a Prenup to the other, the other’s reaction is usually one of disapproval. Understandably, when we hear the word “Prenup,” negative associations, such as noncommitment, usually come to mind. Another common association with prenups is that only people with significant assets utilize them. The stigma behind premarital agreements must change. They should not be thought of as casting doubt on the strength of the marriage or as something only wealthy people use, but rather as a pragmatic protective measure against the potential emotional chaos and financial disputes inherent in a divorce. Premarital agreements can spell out the terms of a divorce, such as how assets are to be divided, simplifying and speeding up the process, which in turn saves emotional stress and attorneys’ fees. When considering having a premarital agreement, it is important to remember these three important points: (1) you can contract about almost everything; (2) there must be full disclosure; and (3) enforcement is not automatic.

While a premarital agreement can have terms about almost anything, any term addressing the custody of children or child support will be unenforceable. A premarital agreement can help spare heartache and stress of asset division, but cannot address any issues relating to children. If it contains terms surrounding issues relating to children, those portions will be stricken and the rest of the agreement will remain.

Before the parties execute the agreement, they must have fully disclosed all assets to the each other. This helps to ensure that the parties understand the extent of their rights and what it is they are agreeing to. In the event that enforcement of the premarital agreement is necessary, one spouse’s failure to fully disclose all assets can render the agreement unenforceable.

Lastly, before a premarital agreement can be enforced, it must pass two tests; it must be fair and reasonable, (1) at the time of its signing, and (2) at the time of its enforcement. Factors such as one party’s not receiving legal advice, failure to fully disclose assets, or if the agreement is too one-sided can lead a judge to find the agreement not fair and reasonable at its signing. A common concern about prenups is that during the marriage, financial situations can change drastically and the prenup will leave one spouse at a significant disadvantage, but the second test helps to allay this concern. If such was the case, then the premarital agreement would not be considered fair and reasonable at the time of its enforcement.

Prenuptial agreements have slowly started to gain acceptance in the legal system, but for many, the idea of a prenuptial agreement still elicits negative feelings. It is important to remember that a prenuptial agreement may very well never be needed after it is signed, but when faced with the reality that “til death do us part” is sometimes cut short, a prenuptial agreement makes sense to protect both spouses from a lengthy and emotional divorce process.


Just a little change…

One of the ways I give back to the Probate and Family Courts is by volunteering as “Lawyer of the Day” in the courts where I frequently practice. There are many reasons why I do this. As always, it is because I appreciate how hard the staff works assisting attorneys and litigants in a resources limited environment. Initially, it was an opportunity to learn more about the procedures and forms I would not necessarily encounter in my practice at the time. Then, it was to have the opportunity to practice thinking fast “on my feet” and problem solve one case after another quickly. (There are often long lines for the lawyer of the day).

That was then, and this is now. I still volunteer as Lawyer of the Day, but I bring a different perspective. I view my role as assisting people to resolve their issue, not just by filling out the necessary paperwork and honing my skills, but also by posing questions such as: What harm is there in changing the rules of the game? Could a shift in your attitude possibly bring about a compromise of some sort? I then often role play with them. Surprisingly, the role playing frequently clarifies the point!

Admittedly, there are times when I get discouraged hearing negative after negative comments from clients as well as others caught in the system. Stating that the courts are not fair, the system does not work, and my former spouse seems to get away with his/her antics every time, only exacerbates the tension between the parties. Moreover, it appears that judges grow tired with these self-defeating attitudes.

The likely result: little is accomplished; constructive changes are few, and anger levels do not dissipate! One of my goals at Konowitz & Greenberg is to support a client in making a change, small as it may be.

Before blaming the system, muster the courage to stand outside of yourself; take a stab at seeing your conflicts and friction in a different light. Treat life as a kaleidoscope.

As the song from Beauty and the Beast states, “Just a little change, small as it may be… both a little scared, neither one prepared…”

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