Memorial Day 2010

Last week, the 1000th American died in service to our country in Afghanistan. Over 4400 more men and women have died in our service in Iraq. We cannot forget that we are at war, and that the price of war, the price of freedom, the price of our democracy is paid by individuals and families we most likely will never know.

Last year, with very few words and a handful of photographs from our family vacation to Washington, D.C., I published the first of what would become a series of posts on our nation’s legal holidays. My thought was that some reflection on the why of our holidays was a good thing, and it is.

Today is Memorial Day, a legal holiday in the United States. Humans are sometimes too legal. When we focus on what the law requires, we can lose sight of what is right. Legal holidays become required holidays. Required becomes entitled. Entitled doesn’t ask why.

Memorial Day honors the men and women who gave “the last full measure of devotion” in service to our country. So before firing up the grill or saving money on a mattress, remember why the day used to be called Decoration Day.

You don’t need to go a ceremony or a cemetery to be grateful for what they did for you. You can stop for a moment and think about the families gathered at our 131 National Cemeteries and countless private graves across the land to remember their loved ones, men and women who made this day, and each day after it possible for you and your family.

With gratitude and in tribute to all who serve our country and risk everything for us: the National Anthem performed by the Colorado Children’s Chorale at opening ceremony for the 2008 Democratic Party National Convention here in Denver. (Note the Color Guard--these gentlemen are Navajo Code Talkers. It was cool to meet them.)

Your Rights and Responsibilities in Unclaimed Property

Email business scams, like the one in my last post, aren’t that surprising, but another business client was most definitely surprised at home one recent evening by a person on his doorstep claiming to have information about valuable property belonging to his business that was being held by the State of Colorado. For a fee, this individual would help my client recover those assets.

This was not technically a scam, I explained to my client, but he most certainly didn’t need to pay anyone (even me) to get his property back. Colorado, like every other state, has a law requiring a person holding unclaimed property to deliver it to the state. These laws are the modern replacement of the concept of escheat developed during England’s feudal period. Now instead of the feudal lord reaping the benefits of unclaimed property, state governments do; at least until the rightful owner claims the property.

Fortunately, the Colorado State Treasurer, who administers our unclaimed property law, makes it easy for property owners to claim their lost property. All my client needed to do, and all you need to do, if you haven’t already, is check the Great Colorado Payback site and follow the instructions there. If you are on the list, you’re in good company. The state reports over 500,000 individuals and businesses have abandoned property in state custody.

You might be wondering, what kind of property? Mostly money, like uncashed checks, unclaimed refunds and bank account balances, but the law applies to every kind of property, from stock certificates to the contents of a forgotten safety deposit box, that has been abandoned by an owner whom the holder can’t otherwise locate.

Of course, this cuts both ways for human-owned businesses. You might be the beneficiary of forgotten property that you can reclaim, but your business also has an obligation to report annually to the state any abandoned property in its possession. This property could belong to former customers, employees, or vendors, or anyone else you can’t find to return the property to them. Property is generally deemed abandoned five years after your last contact with that person, however, for uncashed paychecks the period is only one year.

Remember the definition of property is very broad. Those unclaimed customer credits, or other forgotten sums or items, are not your bonanza; after five years, they go to the state. Colorado law does cut human-owned businesses some slack. If the annual gross receipts of the business are under $500,000, reporting is not required until the aggregated amount of unclaimed property exceeds $3,500 or any single item is $250.00 or more. If you don’t understand the Great Colorado Payback website or have questions about the rights and responsibilities of your business under this law, by all means see your lawyer.

Are You Being Sued or Scammed? Your Registered Agent Knows

Smart business folks aren’t fooled by scams, are they? A couple of my clients came close recently, but their instinct to check things out paid off. I hope that sharing their stories might remind you to be equally careful.

An email threatening a lawsuit for breach of contract was going around last month. It was forwarded to me by clients who thought it smelled phishy and didn’t take the bait. Other busy, stressed business owners might click the “law firm” link (removed in the following version) to see what the hell is going on.

You are hereby put on notice that as of 7/1/2010 you are in breach of our contract dated 3/12/2007.

The nature of said breach is: False Advertising, Breach of Contract, Bad faith Breach of Contract, Fraud and Deceit.

It is our desire to inform you of the foregoing and afford you the opportunity to cure said breach.
You may in any event be held responsible for all damages arising from said breach.

To view a copy of the complaint please visit XXXXXXXX and use the CASE ID located at the end of the document to find the copy of the complaint.

You have until 10th of May 2010 to cure said breach, after which we will be forced to pursue further legal action.

Many modern business contracts allow the parties to use email to communicate about contractual matters, such as allegations of breach. If, however, matters reach the point where one party is suing the other, our legal system reverts back to a very old technology: personal service.

This email scam was designed to trick people into thinking they are being sued so that momentary panic overcomes common sense and the link can do its dirty work. If your business is actually being sued, a summons, typically delivered by a professional process server to the business’s registered agent at the business’s registered office, not an email, is how litigation starts.

In Colorado, business entities, such as corporations and limited liability companies, must designate with the Secretary of State a registered agent and a registered office. The registered agent has a simple, but important job: accept the “service of process” that marks the start of a law suit, and receive other official state communications.

But don’t think not having a registered office or agent will keep you from being sued; the process server can also personally serve the principals of the business—such as an officer, director, or manager. Not having a registered office can create other problems, however, when required annual reports are missed.  Eventually the business becomes delinquent, loses its “good standing,” and puts its legal rights, such as the right to its name or the right to bring a law suit, at risk.

In my experience, registered office/agent problems start when a business moves without updating state records. There is no requirement that the business location be the registered office, but many human-owned business owners use go that route. Fortunately, the Colorado Secretary of State makes it very easy to check the registered office and standing of your business. Contact your lawyer if you have any trouble updating the state’s records, and always contact your lawyer, immediately, if you are served with a law suit.

Where It Began: One Year of No Funny Lawyers

No Funny Lawyers is a year-old today. Thanks for being part of that first year, and I hope you don’t mind indulging me in a little celebratory retrospective on my journey as a writer. Long before the 55 posts of the last year, long before law for human-owned businesses, I was a high school journalist.

Recently, I dug a stack of yellowing Brahma Tales, the newspaper of San Antonio’s Douglas Macarthur High School from a dusty box in my basement. I wanted to see how my work as a lawyer-blogger compared to the news and sports stories, editorials, and features of my high school days. Should I be pleased or embarrassed that over 35 years the addition of hyperlinks seems the most obvious change in my writing?

Judge for yourself. Here, without any editing, as much as it pained me not to edit it (but I did add hyperlinks), is an article published in November 1975, the fall of my senior year, about my experience as a first-time blood donor. I’ve since given blood many times (and not passed out, even once); it really is the easiest way to save a life. In Denver, Bonfils Blood Centers and The Children’s Hospital are two great organizations that will help you be a hero.

Thanks again for reading.

Blood drive brings out “hero” in Jim Thomas

by Jim Thomas

Why can’t I live a normal life? I mean why do I get these Walter Mitty urges to do things above and beyond the call of duty; death defying acts—like giving blood.

When the great humanitarian in me learned about the November 6 blood drive I should have realized I was in trouble.

I might have heard my mother ask me if I knew what I was doing if I wasn’t watching a three time repeat of Hogan’s Heroes.

But it was too late when sixth period rolled around and my pass came for me to go to the auditorium. The horrible truth hit me. They wanted my blood.

Feeling the need for some moral support, I asked some of my fellow Brahma Tales staff members if they would go with me.

“In there?” they asked, their faces turning green, “Well uh, we got stories to do.”

So to the auditorium I went…alone…the long way.

Through the half open door I saw a scene that reminded me of something out of Dr. Phibes.

I told myself there was no reason to be paranoid, just then I got the stabbing pain in my arm.

As I was seating myself with some other victims, a man, who to my horror looked just like Bella Lugosi, greeted the small group.

He whipped out a small form and started ambling off a list of questions that sounded like part of the Spanish Inquisition.

“Ever have Brucellosis” my interrogator asked. I wasn’t sure if that fit in with chicken pox and measles so I asked what it was.

“You get it from messing around with cows,” he replied.

I told him I didn’t think so.

As he tested my blood for iron I remembered the savage way my Biology teacher sadistically stabbed my finger for a blood test my sophomore year.

At this point a tremendous crash and thud resounded through the auditorium. I looked up on stage, where a donor lay prone on the floor where he had just passed out.

I’ve got to get out of this place, I thought.

No such luck. I was led through a maze where students were lying quietly bleeding to death, my somewhat immature mind added.

The moment had come. Hypnotized, I watched an attendant plunge what resembled an embalmer’s needled into my arm.

I was almost proud as I watched the blood seep through the tube and into the bag, sloshing around like luke-warm black cherry jello.

I was thinking how I was going to be a big hero with my little sisters when a girl asked me why my arm was shaking – there went my hero image.

It was over faster than I thought; I was almost ready to give another pint, but instead I carefully walked over to the refreshment area.

The pride I was feeling about having had no bad effects from what I considered to be a major operation quickly vanished when my fingers stopped responding to my nervous impulses (I lost the coordination in my hands) and dropped my cookies on the floor.

To add to my embarrassment a woman asked me if I was feeling all right.

Sure, never better, I said. But she didn’t seem to believe me because she repeated her question.

I was about to tell her that I felt a little hot, when she told me that the auditorium was too cold for the people who were giving blood.

No, that's not me in the picture.
  I must have been too pale to photograph.

So instead I asked about people fainting from giving blood. She said that two guys about my size had passed out.

I must have looked pale because she asked me if I was feeling well.

“Maybe” I mumbled and then decided it was time to get back to Journalism.

This post is dedicated to Susan Kemp, my Journalism teacher during my sophomore and junior years at Mac. Not only did she help me believe in my writing, she helped me believe in me.