This week was dominated by the ongoing discussion of reform in Title 14 at least in the area of the surviving spousal share. Last week I wrote about the testimony of Jonathan Secrest and Stephanie Willbanks and added that the House Judiciary Committee gave us two weeks to try to reach agreement on a bill that, although a bit more comprehensive, would not be too much for the Committee to get its arms around on this short notice. Well, Jon and Stephanie met on Monday at VLS with Bob Pratt, retiring chair of the VBA Probate and Trust Section, John Newman, and Caledonia Probate Judge Toby Balivet. After three hours this group put together a reasonable proposal that accomplishes a good deal of what the Judiciary Committee took an interest in, while not being a rewrite of Title 14. We’re circulating the draft to the Probate Section list serve and to the probate judges for comment. With any luck we’ll get some committee time next week to present the revisions. Our hope is to get something out of the House in time for the “crossover” deadline; that will guarantee that the Senate will have time to take it up this year.

CJ Reiber and Justice Dooley presented the judiciary’s 2009 budget request to the House Appropriations Committee on Thursday. The letter from the Chief to the Committee can be read HERE. It spells out the increases, where and how they will be used, and makes mention of the $1.23 million in increased fees. I’ve discussed that in my two earlier reports this year. The six positions the judiciary would like to fill with this budget are clerk positions in Rutland, Franklin, and Windsor Counties. The probate courts in Newport and Lamoille would share one position and the remaining two slots are in the Court Administrator’s Office. There is no difference between the bottom line of the governor’s recommended budget and the judiciary’s request. The only disagreement is the special fund I talked about last week. Certain members of the House Appropriations Committee raised the issue of closing courts, especially probate courts. This remains a sensitive issue with legislators (and no doubt with some probate judges); but again the issue of restructuring the judiciary is on the table.

The Senate Judiciary Committee yesterday took initial testimony on S. 200, a bill that would create an express trust to protect materialmen under federal bankruptcy law. We’re reviewing the bill from a property law perspective and need to be assured that there will be no effect on title and/or that an innocent property owner is not brought into litigation or is not subject to a lien being filed on the property. Hearings should resume on this next Friday.

That same committee may soon consider S. 224, which provides:

Sec.1. 12 V.S.A. § 1950 is added to read:

§ 1950.  NUMBER OF JURORS REQUIRED FOR A VERDICT IN A CIVIL ACTION

In a civil action, the verdict or finding of a number of jurors equal to at least 80 percent of the jurors serving on a jury shall constitute the verdict or finding of the jury.

If you have an interest in this bill and or this change in process contact your senator and/or representative.

We finally had an Act 185 meeting with a couple of legislators that pulled together a group to advise the Ways and Means Committee on changes that we see as necessary. We were able to finally agree that the prebate/rebate, calculated as it is on seller’s income and taxes paid in the previous year, is the seller’s! There has always been a minority, a very small minority, who maintained the rebate ran with the land. We were also able to agree that the adjustment to the tax bill will be public information. Those are the issues that perhaps most affect what you do.

Those of you on the VBA’s property law list serve will be getting a message asking you to review H. 722. The House Judiciary Committee will take up the bill if we can show them there is some consensus among our members and with the bankers. Please share your feedback with me if you are not on that list, or with the group if you are; the sooner we hear from those interested, the sooner there could be some action on this. CLICK HERE to view the bill:

It does the following:

1. Allow a spouse to convey his/her homestead interest (this is designed to overcome the harsh reality of In Re Mainolfi and resolve the troublesome issues faced by divorcing spouses who are trying to buy/mortgage property on their own);

2. Cure “marketable” title problems by validating “problem” mortgage discharges under certain circumstances (this is designed, inter alia, to make the problem of missing or unrecorded mortgage assignments in the chain of title disappear and to resolve problems created where a mortgagee is shown as Citibank Mortgage Corporation but the discharge is executed by Citibank Mortgage Company);

3. Validate conveyancing documents that contain non-significant issues/defects under certain circumstances (this is designed, inter alia, to validate a mortgage discharge by a commercial lender via a POA to another commercial entity where no POA is of record); and

4. Expand the statute of limitations concerning enforcement of municipal permit issues to include T.19 §1101 permits (this is designed to add missing highway permits to the list of matters cured after 15 years of non-enforcement).

As mentioned in my first two reports, the judicial retention hearings are underway. All six judges have now appeared before the retention committee for their interviews. Now the committee will hold public hearings on the next two Tuesdays beginning at 7 PM in the State House. The first group of judges will be the subject of the first public hearing on the 5 th while testimony on the second group will be heard on the 12 th.

I’ll report again next Friday; thanks for reading.

Questions about this site should be sent to fcopeland@vtbar.org.

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