Thursday, March 18, 2010

Taking / Civil Rights case opinion

Today (3/18/10), Sr. Judge Hood of the U.S. District Court for the Eastern District of Kentucky issued a decision on cross-motions for partial summary judgment in our client's case challenging Garrard County (Ky.) officials' actions in tearing down a gate limiting access to a lane on her property. The issue for summary judgment was whether that lane was a county road versus a private roadway.

The Court found that "pursuant to KRS 178.116(1) [a Kentucky statute], as well as the County's own acts and admissions, [the lane] shall be deemed discontinued as a county road, if it ever was classified as such."
Scott v. Garrard County Fiscal Court et al., Case No. 5:08-273-JMH (E.D. Ky. Mar. 18, 2010), slip op. at 15. The full opinion is available through the PACER service or here.

Monday, March 15, 2010

Warning Sirens Heard in Lexington

If you were outside around noon in Lexington, Kentucky last Friday, you probably heard something that sounded like this.  It was the severe weather alert coming from one of 26 outdoor warning sirens that are located in parks in and around Lexington (see map). The nearest siren to Yunker & Park is at Woodland Park, close enough that we can hear the warnings indoors. However, while we appreciate the advanced notice of community emergencies at our desks, the primary purpose of the warning sirens is to alert people outside to seek shelter.

Each siren has a range of about half a mile and are used by the Lexington Fayette Urban County Government (LFUCG) to warn citizens of severe weather or chemical emergencies. According to Stephen Jackson, operations manager for the LFUCG Division of Emergency Management, the warning system "is typically activated from Police dispatch when there is a National Weather Service alert for severe weather."

The warning sirens produce three different tones to signal different events (caution: siren videos are loud!):
• the Westminster Chime (video): severe thunderstorm watch/warning and tornado watch
• Stead (video): tornado warning, and
• Wail (video): evacuations and shelter-in-place

Jackson informed me that "Police dispatch will perform monthly tests and that will rotate through the various shifts." These tests use the Westminster chime and a test schedule can be found at the LFUCG website.  However, if you hear one of these sounds, you should seek shelter inside and turn on the radio or television for further information. As Jackson reminds us, "Emergency preparedness is everyone's business and responsibility."

Friday, March 12, 2010

Picture this: TILA rescission

One of the more important consumer protections is the right to rescind (or undo) a loan transaction. In general, this right is available for a refinancing in which a mortgage or other security interest is taken in someone's home.

The federal Truth-in-Lending Act (TILA) defines/gives this right in 15 U.S.C. §1635(a). The image at left depicts (by size) the frequency of uncommon words in that statute subsection. There are only 203 words total in the subsection, and fewer than half are "uncommon" — so the 80 shown include the one instance of "consumer" (in light blue, left of center).

At right is a comparable depiction of words in the entire statute section, 15 U.S.C. §1635 — which includes exceptions, how you exercise the right, what happens when you do, etc. The five appearances of "consumer" get only a small font size (in white, near the upper right corner), dwarfed by "section" (32 times) and "obligor" (27).

These images are of a Wordle, and are attributable to the wonderful
Images created by the web application are licensed under a Creative Commons Attribution 3.0 United States License.

Tuesday, March 2, 2010

Kentucky's Lemon Law Statute

We practice several areas of law at Yunker & Park plc, including consumer protection law on the side of consumers. Over the course of a year, we receive many phone calls from consumers who are involved in disputes with car dealerships, debt collection companies, lenders, etc., and we have found that there are some misconceptions about certain consumer protection laws enacted to help the consumer. One of the more misunderstood consumer protection laws is “the lemon law.”
The commonwealth of Kentucky has a lemon law that protects consumers who buy or lease new motor vehicles. The Kentucky lemon law statute is codified as KRS 367.841 to .844, and the Kentucky Attorney General’s website describes the statute as follows:
“In Kentucky, manufacturers are required to repurchase an automobile if it is determined to be a ‘lemon.’ You can file a suit [against the manufacturer] in a circuit court but you must first go through the manufacturer's arbitration system. [For a new motor vehicle to qualify as a lemon, the following criteria must be met]:
· The automobile must have been purchased new in Kentucky by a Kentucky resident and not have more than two (2) axles and cannot be a motorcycle, motor home, conversion van, or farm equipment.
· The consumer must report the failure to repair the non-conformity to the manufacturer within the first 12 months or 12,000 miles, whichever is first.
· The problem must substantially impair the use, value, or safety of the automobile.
· The automobile has been out of service for the same problem for a cumulative total of 30 days or more or the problem was not corrected within a reasonable number of attempts. Four (4) attempts to repair the same problems is presumed to be reasonable.”

While the Kentucky lemon law does apply to the purchase of new motor vehicles, it does not apply to the purchase of used cars. There are protections for purchasers of used cars, but the lemon law is not one of them.