Local Attorney Supports the Work of the Law Center Through Cy Pres Award
William E. Kennedy, a Santa Clara-based Consumer Law attorney and long-time friend and supporter of the Katharine & George Alexander Community Law Center (KGACLC), recently facilitated a cy pres award for the Center in the amount of $ 89,320.
Mr. Kennedy, lead attorney in a class action based on violations to the Rosenthal Fair Debt Collection Practices Act and the Fair Debt Collection Practices Act by a large loan servicing corporation, reached a favorable settlement in favor of the class members. When portions of the Class Settlement Funds cannot be distributed to the class members and/or checks are not cashed, the remaining amount is distributed as cy pres awards, destined for similar work in favor of low-income individuals. The terms is derived from a French legal expression, “cy pres comme possible,” or “as near as possible.” The attorneys in the case can identify and nominate non-profit organizations to receive such unclaimed funds. In this case, KGACLC and the East Bay Community Law Center each received 50% of the total cy pres award.
Mr. Kennedy says that cy pres awards are important because “if not for such awards, the unclaimed funds would be returned to the wrongdoers. Funding agencies such as KGACLC, which provide legal services to those who otherwise could not afford them, comes as near as possible to the purpose of consumer protection laws.”
Congratulations to Sean Fitzgerald ’12, Amanda Sparks ’12, Benjamin Wachtel ’12 and Michelle Weiss ’13, for helping Mr. and Mrs. O set aside claims by the IRS in the amount of $28,000.
Amanda Sparks ’12, Mr. and Mrs. O, and Clinic Director Caroline Chen
Mr. and Mrs. O attended the Santa Clara University Taxpayer Clinic in October, 2011, after they received several letters from the IRS. While the case involved various issues, the main problem centered on the taxpayers’ mortgage interest deduction, which had been disallowed for the previous three years.
Mr. and Mrs. O have been residents of San Jose for the last 15 years, but they do not have a legal status in this country – an immediate bank disqualification for home loans. Still wanting to invest in a new home, they asked a friend to help them by securing two loans for the purchase a house. The Os met their friend’s conditions by maintaining and living in the house, and by making all the mortgage and tax property payments in a consistent and timely fashion. Their friend never claimed the interest deduction in his tax returns, but the Os did – until they were audited by the Internal Revenue Service. When it was established that the Os did not hold legal title to the house, they were asked to return all previously-issued refunds plus accrued interest.
The law students, under the supervision of Clinic Director, Caroline Chen, filed Tax Court Petitions for the years 2008 and 2009. They also wrote a memorandum that cited case law supporting the Os’ ability to claim the mortgage interest deduction despite the lack of legal title. In April 2012, Amanda and Sean argued the clients’ position before the IRS for the 2008 tax year, and the IRS conceded. In September 2012, Ben and Michelle argued the clients’ position before the IRS for the 2009 tax year, and the IRS conceded. On August 30th and October 24th of 2012, the IRS set aside its previous demands for payment for 2008 and 2009, respectively. Then, in early February 2013, Mr. and Mrs. O finally received their 2011 tax refund plus the interest that had been collected by the IRS.
Congratulations to former and current law students Megan Hamlin ‘12, Colin Murphy ‘13, Alexander Biddle ‘14 and Sam Kesten ’14, for helping to recover $51,500 in unpaid wages for their client, Ms. R.
Ms. R came to this country at the request of a family who was from the same town in their country of origin. Once here, her main task was to take care of an elderly member of the same family, from Monday to Thursday, starting at seven in the morning until 10 at night. Her time off started on Friday, at 6 am, and ended on Sunday, at 7 pm. While her schedule remained constant, her monthly salary varied and it was substantially less than the required minimum wage.
The law students, under the supervision of Margarita P. Alvarez, the Workers’ Rights Supervising Attorney, attempted to negotiate directly with the employer, who offered to settle for an amount that was substantially less than $74,488 – the original claim that included unpaid wages and liquidated damages. The students then represented Ms. R during a Labor Commission Hearing, and this resulted in a favorable decision for the full amount of the claim. While the decision was a vindication for Ms. R, it also carried its own risks. The employer stated that he would appeal the decision, but also indicated that he would be amenable to a settlement instead. In light of the risks of going to trial and Ms. R’s desire to avoid the stress of a protracted litigation, Sam entered into settlement negotiations on behalf of his client. He was able to secure $51,500 from the employer, an amount that was paid in full to Ms. R. Moved by the result, Ms. R praised her legal team “for the valuable work that you carry out every day on behalf of the community. I wish you continued success in the pursuit of justice so that we can all be more socially-conscious and show the respect that every human being deserves.”
“Ms. R was taken advantage of in blatant violation of the law. Being able to help her find justice has been one of the most fulfilling things I have done in law school,” said Sam, the student who closed this case.
Congratulations to Alice Wey ’12, Jayro Pizano ’12 , Kristen King ’13, and Tyson Redenbarger ’13, for successfully defending their client against a meritless $20,000 law suit.
The Center’s client, Ms. V, bought a used truck from a local dealership some years ago. The truck turned out to be a ‘lemon’. Due to a combination of financial problems and the poor reliability of the vehicle, Ms. V stopped making payments in early 2008. The credit union that financed the vehicle repossessed and sold the truck in 2008. Because the credit union misrepresented Ms. V’s rights to recover the car before it was sold, it wasn’t entitled to any further amounts after it sold Ms. V’s car.
Three years later, in 2011, a collection agency sued Ms. V and her husband seeking $20,000. The fact that the collection agency sued Mr. V is especially inexplicable: Mr. V never signed the truck contract and wasn’t even married to Ms. V and the time she signed it.
When the debt buyer refused to dismiss the case against Ms. V, Center students went to work. They filed a motion to compel discovery to get the underlying documents. In its discovery responses, the collection agency admitted to facts that legally barred it from collecting any further amounts, yet the agency pressed forward with the suit. In October of 2012, Tyson Redenbarger filed a motion for summary judgment. While the motion was pending (and throughout the litigation), plaintiff’s counsel called Center students and attempted to berate them into advising Ms. V to enter into a payment plan with the collection agency. Fortunately, the court granted Tyson’s motion for summary judgment in January of 2013, and then granted Tyson’s motion for an award of reasonable attorneys’ fees in April of 2013. It remains to be seen if the collection agency will pay its just and owing debt to the Alexander Law Center.
By Colin T. Murphy ‘13
I never planned on doing pro bono work during or after law school. By the time I entered law school, I figured I had already done my civic duty by tutoring at-risk youth and by participating in baseball clinics for kids. Once a law student, I planned on spending the following three years focused on homework and, more importantly, finding post-bar employment.
I started in the part-time program with the plan of becoming a full-time student during my second year. I suspected that the transition would put me at a disadvantage when looking for a summer clerkship after my first year. As a part-time student, I felt that my full-time peers had more immediate and better venues to gain real legal experience and training. Nevertheless, I tried my luck during the first summer. I secured three interviews, but I wasn’t hired for any of those jobs. Each prospective employer had the same response: “Come back when you have some experience.”
A bit frustrated, I sought the advice of a third-year friend. She recommended that I take the Skills I course at the Alexander Community Law Center. There, I would get to work directly under the supervision of an attorney, receive critical feedback about my work and performance, and most importantly, help change someone’s life. That sounded great. It brought to mind my invaluable experience of working with disadvantaged youth and the joy and satisfaction of watching kids grow up, graduate from high school and attend college thanks to baseball, which kept them from getting into trouble. I took my friend’s advice and decided to sign up for a class at the Alexander Community Law Center (the “Law Center”, as is more commonly known).
My friend was right. Working at the Law Center has been the most valuable experience I have had during law school. I worked under the supervision of Margarita Prado Alvarez, a well-respected attorney, in the Worker’s Rights Practice. This allowed me to work with real clients who had real problems that needed solutions. In fact, I had to opportunity to take three cases before the Labor Commission, all of which we won. At the Labor Commission, I also negotiated a settlement which resulted in an impasse, but the defendant was found liable for many thousands of dollars in favor of our client. I had to give opening statements and closing arguments, present evidence, and conduct both direct and cross-examinations, among other things.
The Community Law Center also gave me the opportunity to work with Marisol Escalera, Irene Cermeño and other great staff members and colleagues. Any time I had a question, they stopped whatever they were doing to help me. (After clerking at a mid-sized firm, I can attest to just how invaluable it is to have colleagues who are willing to help an inexperienced law student).
Around the middle of the semester at the Law Center, I tried my chances again to find a summer clerkship at a firm – only this time I did have some valuable experience. As fate would have it, I was fortunate to receive a paid summer internship at a San Francisco firm where I had my own office on the twentieth floor of a building in the Financial District.
During the job interview, I was able to talk about the type of work I had been doing at the Law Center and what that experience had been like. But what mostly impressed the hiring partner was the fact that I had to reschedule my second interview due to a hearing at the Labor Commission for one of my Law Center clients. The partner told me: “Colin, you put your client first. That is what this business is all about.” Thanks to my experience and the great mentoring from the Law Center attorneys and staff, my summer internship turned into a full-time, post-bar offer. For that, I am forever grateful and will continue to encourage my 1L and 2L peers to sign up for courses at the Law Center during law school.