Article written by Joseph Garin and published in the May, 2016 issue of the State Bar of Nevada’s “Nevada Lawyer” magazine. Nevada attorneys can earn one CLE Ethics credit by reading the article and passing a test included in the magazine.
Dax Watson, Managing Partner of the Phoenix office of Lipson, Neilson, Cole, Seltzer, Garin, P.C., was the only attorney on a panel of real estate industry professionals that spoke at the Solutions Q2 Industry News and Market Update event held April 21, 2016 at the University of Phoenix. Presented by Solutions Real Estate, this event provided attendees with the latest news and updates pertaining to the real estate industry.
Dax Watson focuses his law practice in commercial litigation with an emphasis in real estate matters and professional liability defense. His clients include professionals in the fields of real estate, law, accounting, architecture, and engineering. Dax is also an experienced mediator that conducts private mediations and settlement conferences for all types of civil disputes, with a focus on real estate and commercial litigation disputes.
Appointed by the Maricopa County Superior Court to act as a Judge Pro Tempore, Dax conducts Court-appointed settlement conferences as a Settlement Judge and also serves as a “fill-in” Judge on civil matters and short trials. He regularly appears and represents clients in regulatory matters before the Arizona Department of Real Estate and other state and federal agencies. To learn more please visit www.lipsonneilson.com.
Contact: Dax Watson
Attorney and Mediator Dax Watson, Managing Partner of the Lipson Neilson law firm’s Phoenix office, has expanded his practice to include Mediation. Dax conducts private mediations and settlement conferences for all types of civil disputes, with a focus on real estate and commercial litigation disputes.
In his capacity as a defense attorney, Dax focuses his practice in commercial litigation with an emphasis in real estate matters and professional liability defense. His clients include professionals in the fields of real estate, law, accounting, architecture, and engineering. He also defends officers, directors and employers in employment practice liability disputes.
Appointed by the Maricopa County Superior Court to act as a Judge Pro Tempore, Dax conducts Court-appointed settlement conferences as a Settlement Judge and also serves as a “fill-in” Judge on civil matters and short trials. He regularly appears and represents clients in regulatory matters before the Arizona Department of Real Estate and other state and federal agencies.
You can contact Dax Watson by calling 602-626-8888 or by email to DWatson@lipsonneilson.com.
Corey I. Richter, an attorney in the Phoenix office of Lipson, Neilson, Cole, Seltzer & Garin, P.C., has been selected as a 2016 Southwest Super Lawyers’ Rising Star. This is Corey’s third consecutive year on this list.
Corey is an experienced defense attorney well-versed in product liability, construction defect, professional liability, and commercial litigation. He excels in representing domestic and foreign corporations and businesses of all sizes, from multinational to closely held, in complex litigation matters at both the state and federal levels.
Corey has represented the world’s most prominent manufacturers of automobiles and recreational vehicles in warranty, catastrophic injury and property damage litigation, and he also has experience representing clients in the aerospace and defense industry. He has represented clients in states throughout the country in matters ranging from administrative complaints by the Attorney General to complex multi-million dollar contract disputes. Additionally, Corey has significant experience representing retail stores and manufacturers of chemical products and chemical dispensing systems in contract disputes and matters of premises liability and personal injury. Corey also has extensive real estate litigation experience defending some of the largest real estate brokerages in Arizona.
Published by Thomson Reuters, the world’s leading source of information for the legal industry, Super Lawyers uses a patented multiphase selection process that includes peer nominations, evaluations and independent research. The selection process for the Rising Stars list is the same as the Super Lawyers, with one exception: to be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. No more than 2.5 percent of lawyers in Arizona are named to the Rising Stars list.
You can contact Corey Richter by calling 602-626-8888 or by email to CRichter@lipsonneilson.com.
Karen Smyth, a Partner at Lipson, Neilson, Cole, Seltzer, Garin, P.C. will be featured on a panel of leading industry professionals discussing “EEOC & LGBT Employment Matters: Accommodations, Harassment, Title VII &+ Impact of Obergefell” at the second annual Employment Practices Liability Insurance ExecuSummit held in Chicago at the Dana Hotel on April 12-13, 2016.
This summit will provide attendees a unique opportunity to learn from distinguished presenters who will be discussing current issues and trends impacting Employment Practices Liability underwriting and claims. Attendees will include insurance industry executives, corporate counsel and attorneys from across the USA.
Karen has considerable experience in the defense of professional liability cases, including legal malpractice, medical malpractice, and employment practices litigation. She is a licensed attorney in Michigan and New York, a graduate of the Litigation Management Institute and the President of the Michigan Chapter of the Claims & Litigation Management Alliance.
About Lipson Neilson
Founded in 1985, Lipson, Neilson, Cole, Seltzer, Garin, P.C. has offices in Bloomfield Hills, Grand Rapids, Las Vegas and Phoenix. The firm is widely known for its professional liability lines, offering invaluable insight and experience to its clients across all industries. The firm represents clients in throughout the USA and around the world. You can learn more at www.lipsonneilson.com.
Contact Karen Smyth
Lipson Neilson Shareholder Sandra Glazier, co-author of “What Every Estate Planner Should Know About Undue Influence: Recognizing It, Insulating Against It…and Litigating It”, along with co-authoring attorneys Thomas Dixon and Thomas Sweeney, will be featured speakers on the topics discussed in this paper during the 35th Annual Kansas City Estate Planning Symposium to be held on April 21 – 22, 2016.
Glazier, Dixon and Sweeney will speak about identifying and addressing issues relating to vulnerabilities which could subject an individual to undue influence. Because undue influence is generally a process, as opposed to a single event, its growing prevalence as a basis for litigation which attacks the validity of estate planning documents, makes it of considerable importance to professionals involved in the estate planning process and attorneys who litigate such issues.
This symposium attracts nationally renowned speakers and is presented in cooperation by the Estate Planning Society of Kansas, the Financial Planning Association of Greater Kansas City, and the University of Missouri-Kansas City School of Law. Attendees of this conference include Estate Planning attorneys, Business and Tax attorneys, CPAs, Trust Officers, Planned Giving Professionals, Certified Financial Planners, and Life Underwriters.
An attorney for more than 30 years, Sandra Glazier is well-known for her expertise and successful track record in Probate Litigation, Estate Planning and Administration, and Family Law. Sandra is the current Chair of the Oakland County Bar Association’s Probate, Estate & Trust Committee. To learn more about Sandra, and the Lipson Neilson law firm, please visit www.lipsonneilson.com You can email Sandra D. Glazier at firstname.lastname@example.org.
Joseph Garin, Attorney, Lipson, Neilson, Cole, Seltzer & Garin, P.C. will speak at the CLM Annual Conference, which will be held at the Hilton Orlando Bonnet Creek, April 6-8. His session is titled “Law Firm Dissolutions, Receivers, Bankruptcy and Claims.”
Joseph Garin is a partner in the firm of Lipson, Neilson, Cole, Seltzer & Garin, P.C. with offices in Nevada, Arizona and Michigan. He is consulted nationally on the defense of professional liability claims, ethics, employment, insurance coverage disputes, director and officer claims, and risk management. He is also experienced in complex and commercial litigation matters, including cases involving breach of contract and unfair business practices.
Mr. Garin earned a B.G.S. degree from the University of Michigan and received his J.D. degree cum laude from Michigan State University-Detroit College of Law, where he was a member of the Law Review. He is a member of the State Bar of Michigan, the State Bar of Illinois, the State Bar of Nevada and the State Bar of Colorado. He is admitted before the United States District Court for the Eastern and Western District of Michigan, the District of Nevada, as well as in the Sixth and Ninth Circuit Court of Appeals.
Mr. Garin serves as the Chair to the State Bar of Nevada Standing Committee on Professional Responsibility and Ethics and is a member of the Professional Liability Committee for the Claims and Litigation Management Alliance.
About Lipson Neilson
Founded in 1985, Lipson, Neilson, Cole, Seltzer, Garin, P.C. has offices in Las Vegas, Phoenix, Bloomfield Hills and Grand Rapids. The firm is widely known for its excellence in the professional liability lines, offering invaluable insight and experience to its clients across all industries. The firm represents clients in Nevada, throughout the USA and around the world. You can learn more at www.lipsonneilson.com.
About the CLM
The Claims and Litigation Management Alliance (CLM) promotes and furthers the highest standards of claims and litigation management and brings together the thought leaders in both industries. CLM’s Members and Fellows include risk and litigation managers, insurance and claims professionals, corporate counsel, outside counsel and third party vendors. The CLM sponsors educational programs, provides resources and fosters communication among all in the industry. To learn more about the CLM, please visit www.theclm.org.
Most of us have heard of the Consumer Financial Protection Bureau(CFPB) and that it is not only coming to town…it is already here. In turn, now is the time for all professionals in the real estate field to learn how to stay out of CFPB jail! This is the first of a three part series on the CFPB and its enforcement powers.
The CFPB is an independent agency of the United States government responsible for consumer protection in the financial sector. In 2010, the Dodd–Frank Wall Street Reform and Consumer Protection Act created the CFPB as a response to the financial crisis of 2007–08 and the subsequent Great Recession.
Included within its jurisdiction is enforcement of the Real Estate Settlement Procedures Act (RESPA). Specifically, Section of 8 of RESPA and its prohibition against “kickbacks” among settlement service providers.
Real Estate Agents are settlement service providers, as are lenders, title and escrow companies, appraisers, inspectors and home warranty companies. Significantly, RESPA has been in place since 1974 and, hence, RESPA violations have been actionable for over four decades. Yet, because the U.S. Department of Housing and Urban Development was charged with RESPA compliance and had limited resources, enforcement has been sparse. That will and has changed with the CFPB.
The CFPB, with offices in Washington D.C. and Phoenix, Arizona, is well staffed and incredibly well funded. It also generates revenue by and through assessing fines and penalties for non-compliance with the laws under its jurisdiction. Those fines can range from $5,000 per violation up to $1,000,000. This is serious business.
So, what should real estate licensees be mindful of?
- Co-Marketing among settlement service providers (Flyers and other promotional materials). In the past, it was not uncommon for industry partners, such as lenders or title companies, to provide a licensee with marketing materials (say a flyer, or customized pens or calendars or the like) that included an agent’s logo, information and/or picture on it. They did so without charging the licensee the cost of producing the marketing pieces and to bridge a relationship. That is not permitted. Indeed, if another service provider offers to do a specialized marketing piece for a licensee, the licensee must pay the fair market value for the piece (pro rata). For example, if 75% of a flyer is dedicated to the licensee’s business and 25% to a title company, the agent/licensee must pay for 75% of the cost of producing it.
- Co-Marketing on Lead Sites and other Real Estate Sites (Zillow or Trulia). It is likewise not uncommon for settlement service providers to market together on these types of lead-generating websites. And, often times one of the providers pays the entire cost for both. That should not occur. Again, the providers should pay their proportionate cost of the marketing.
- Providing Food and Refreshments at Events. A settlement service provider (e.g. a title company) sometimes offers to furnish food and refreshments for an event hosted by another provider (e.g. a real estate brokerage). This often occurs at team meetings, office meetings, and home tours. By providing something of value, the CFPB could consider this a kickback. One way to mitigate this, and possibly avoid a RESPA infraction, is to make certain that the settlement service provider who is furnishing the food and drink is present at the event and afforded an opportunity to actually market their services. So, in essence, in exchange for paying for the food and beverages, the title company is able to meet with agents, a team, consumers or others and advertise its services.
- Template Pieces. There seems to be a split in the industry as to whether “template-type marketing pieces” are RESPA compliant. For instance, title companies often create listing books or buyer brochures that they provide to real estate licensees to give to buyers and sellers the licensees are working with. The books/packets are consumer driven and are largely informational as to the real estate market, listing information, etc. and basically a promotional piece for the title company. However, the title companies will often personalize the template to include a licensee’s name, brokerage, phone number and email on the cover. Some in the industry believe that because these books/packets/brochures are not created specifically for an individual licensee and/or to actually market the licensee, providing them for free is not a kickback. Others take the position it is still something of value and the cost of production should be pro-rated.
- Event Tickets, Meals and Entertainment. Marketing 101: get to know your referral partners. An effective means of marketing has always been taking a potential referral source to lunch, to a game or event. Can those tickets be considered something of value to trigger a RESPA violation? Well, it is almost certainly a RESPA violation if a real estate licensee accepts tickets from another provider (lender for instance) and that provider does not join the licensee at the event. If they go together, then, again, it could be argued that there is value being exchanged – e.g. an opportunity to market and grow the relationship.
Be mindful of two things in reviewing the foregoing. First, this a general overview of RESPA based solely on current trends. The CFPB is just now ramping up and we will receive more guidance going forward as to what it considers a RESPA violation. Second, a licensee’s own state law may address, limit and/or govern some of these issues as well.
In our part II of this series, we will explore Marketing Service Agreements and CFPB compliance.
About the Author
Dax Watson is the Managing Partner of the Phoenix office of Lipson, Neilson, Cole, Seltzer, Garin, P.C. He has extensive litigation and professional liability defense experience, especially in the field of real estate. He has appeared and represented clients in every county in Arizona and has an extensive trial practice, and he routinely represents clients in regulatory matters before the Arizona Department of Real Estate and other State agencies. Dax has been appointed by the Maricopa County Superior Court to act as a Judge Pro Tempore. In this capacity, he conducts Court-appointed settlement conferences as a Settlement Judge and also serves as a “fill-in” Judge on civil matters and short trials and likewise conducts private mediations. In addition to his legal practice, Dax is approved to teach legal issues, agency and disclosure, and property management by the Arizona Department of Real Estate. He regularly teaches risk-reduction classes to, and seminars for, real estate Brokers throughout Arizona.
You can contact Dax by calling 602-626-8888, or send an email to DWatson@lipsonneilson.com.
Five attorneys from the firm’s Bloomfield Hills office have been selected to the 2015 Michigan Super Lawyers and Rising Stars lists. Jeffrey Neilson, Steven Cole, Phillip Seltzer and Mary T. Schmitt Smith are “Michigan Super Lawyers”, and Starr Kincaid is a “Michigan Rising Star”. Each year, no more than five percent of lawyers in the state are selected as Super Lawyers, and no more 2.5 percent are selected to the Rising Stars list.
Jeffrey T. Neilson has been selected as a Michigan Super Lawyer for the ninth consecutive year. One of the firm’s founders and a shareholder, Jeffrey is known nationally for his expertise in probate litigation, business counseling, estate planning and domestic and family law liability. In 2014, Jeffrey was reappointed by the Michigan Supreme Court to serve on Michigan’s Attorney Grievance Committee (AGC); this appointment is through October 1, 2017.
Steven R. Cole has been selected as a Michigan Super Lawyer for the ninth consecutive year. A founding shareholder, Steven has a diverse practice focusing on real estate, business and corporate matters, and estate planning. Steven has previously served as an adjunct instructor of taxation at area business colleges and has taught continuing education courses approved by the Michigan Insurance Bureau for licensed insurance professionals. He has conducted numerous seminars for the Michigan Association of Certified Public Accountants, and has served on the boards of directors of public charities.
Phillip E. Seltzer has been selected as a Michigan Super Lawyer for the fifth consecutive year. A shareholder of the firm, Phillip is a specialist in the areas of legal malpractice, architect and design professional malpractice, accounting malpractice, real estate broker errors and omissions, directors’ and officers’ liability claims and insurance coverage disputes. During 2104, a complex legal malpractice case, arising out of a medical device product liability matter that was successfully defended and dismissed through the efforts of Phillip Seltzer and Starr Kincaid has been described by Michigan Lawyers Weekly as one of the “Most Important Opinions of 2014″.
Mary T. Schmitt Smith has been selected as a Michigan Super Lawyer for the ninth consecutive year. She advises clients about estate planning, tax and probate options, with a distinct focus on drafting and administration of Special Needs Trusts. Mary is Michigan’s first Certified Elder Law Attorney and is AV-Rated by Martindale Hubbell for the past 16 years. She has served on the Board of Directors of the National Academy of Elder Law Attorneys, and is a charter member of the Special Needs Alliance, a national network of lawyers dedicated to Disability and Public Benefits Law.
Starr M. Kincaid has been selected as a Michigan Super Lawyers Rising Star for the third consecutive year. Starr devotes a majority of her practice to the defense of professional liability and employment practices claims. Starr is a recognized for her work in the areas of professional liability law and employment litigation and is often invited to speak at national conferences conducted by leading industry associations. During 2014, a complex legal malpractice case, arising out of a medical device product liability matter that was successfully defended and dismissed through the efforts of Phillip Seltzer and Starr Kincaid has been described by Michigan Lawyers Weekly as one of the “Most Important Opinions of 2014″.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
About Lipson, Neilson, Cole, Seltzer, Garin, P.C.
2015 Marks the 30th anniversary of the Lipson Neilson law firm that has grown from three founding members to thirty attorneys located in three states. The firm has also expanded its expertise from its core business, tax and litigation practice areas during its early days, to currently offering a full range of practice areas including complex business tort litigation, professional liability defense, employment law and litigation, international law, real estate, probate litigation, family law and estate planning. Lipson Neilson attorneys represent and provide counsel to clients around the country, and around the world. To learn more about the firm, please visit www.lipsonneilson.com or call the Bloomfield Hills office at (248) 593-5000.