Update (March 27, 2019): Minnesota Litigator has profiled many great Minnesota litigators (see the compilation at the bottom of the post) for several years.
No one compares with Kevin Dunlevy of Beisel & Dunlevy PA.
For sure, there are literally thousands of excellent Minnesota litigators (many of whom we have profiled, many more that we have admired but have not had the opportunity to profile). It is not clear, however, that there is any other Minnesota litigator (or lawyer) with deeper expertise, mastery, and knowledge of a discrete subject matter area of Minnesota law than Kevin Dunlevy has developed over more than 30 years in the law of Minnesota real property.
LEVENTHAL pllc has retained Mr. Dunlevy as an expert and has referred real estate matters to Beisel & Dunlevy PA. This profile is not “paid advertising.” (None of our profiles are.) LEVENTHAL pllc has no financial interest in Beisel & Dunlevy PA. In other words, this testimonial is “the real deal,” a genuine strong recommendation from someone who knows what he’s talking about. If you have a legal problem that concerns Minnesota real property, why would you not consult with Kevin Dunlevy?
ML: In a “first” for Minnesota litigator, we’re having a repeat interviewee: Kevin Dunlevy. In our 2014 interview, we only scratched the surface of your expertise. Let’s dig deeper.
But, let’s start at the most superficial level: help our readers with a very basic real property issue in Minnesota: abstract vs. Torrens real property records. What are these? Why do we have two systems? What difference does it make?
Dunlevy: Okay. All real property in Minnesota starts out as the abstract property. That means in order to check the title, historically you had to go to the courthouse and dig through all the documents back to the time of statehood to figure out who owns the property and what the liens are and so on.
The other method is to check the Torrens certificate of title. About half of properties in Hennepin and Ramsey Counties are in the Torrens system. And large percentages of Saint Louis County, Anoka County, and other metro area counties, are Torrens as well.
For a property to become Torrens, somebody has to go to court and get the judge to say the magic words, that it’s Torrens and then has “certificated title.” It is a certificate similar to the motor vehicles certificates. You can look at that certificate and see what bank has a lien on your car or who has title to the car.
The Torrens system was invented by Sir Richard Robert Torrens. He worked in a ship’s registry office in Australia in the 1800s. Ships have certificates of title, just cars. So you can look at the certificate of title and you can see a ship’s mortgage recorded on that certificate of title, and who has title to the ship.
Sir Torrens thought, “A ship’s certificate of title makes a lot of sense for real estate titles. Instead of having to dig through those dusty records at the courthouse to figure out the title, we could just look at this one piece of paper, a certificate of title.”
Most of the English-speaking world except for the U.S. uses the Torrens system: Canada, Great Britain, and, I believe, India.
I met with the professor that was involved in deciding whether India should go with Torrens in India back in about the 1990s and I’m pretty sure India went with Torrens. India’s title is based on the British government survey at the time of partition with Pakistan. Whoever occupied the real property at the time of the survey, was deemed the owner.
A lot of the former communist countries are Torrens because they don’t have title records from before communism. In many of the former Soviet Union countries, property records were all destroyed. Poland retained its title records and I think Hungary, the Czech and Slovak Republics probably kept their records as well.
I do know Poland kept its pre-communism title records because I taught real estate law in Poland in October 2018. Poland had to go through an extensive litigation process to determine who owned the property after the government divested. The litigation was between those who claimed title through the historic title records and those who occupied the properties during communism. In Ukraine, where I taught real estate law in 2013, the government still owns all the commercial and agricultural property and the government only divested the residential property. So, in Ukraine if you lived in an apartment at time communism fell, you simply took ownership when the country gave up ownership of that real estate. Occupancy was the source of title for residential property, like in India.
An attorney from the Hennepin County Examiner of Titles office, Justin Hall, went to Ukraine for about 10 years to set up the Torrens system for Ukraine. Before I went to Ukraine, I called Justin to ask about the Torrens system in Ukraine. I spoke with him on Skype and he was working in Afghanistan with its real estate title system.
So that’s a long explanation but essentially the Torrens system is judicially certified title. The court has issued a certificate of title. Otherwise it’s abstract.
There is a movement afoot to make the whole state Torrens based on the Canadian model. That would eliminate duplicate recording systems, simplify title examinations and save costs to the public.
Canada became Torrens first by having the property in every new plat declared Torrens. And after that, every time a deed was recorded, the property became Torrens. The country set aside an assurance fund, which is like insurance, to protect property owners from title problems because of the non-judicial process, compared to the judicial process previously used in Canada.
ML: If I am a real property owner in Minnesota whose property is in the abstract recording system rather than Torrens, under what circumstances would I want to hire someone and to have the property switched from abstract to Torrens?
Dunlevy: There would be two main reasons to do it, maybe three. The first one is if you’ve got some high value property, like the IDS Center. You may want to register title under the Torrens system because there’s more certainty of title.
I spent quite a few years of legal practice working on title registration of a paper mill up into Duluth. It included 8,000 parcels and it eventually ended up all one certificate of title.
After high value property, the second reason to register title is a murky title problem you don’t know how to fix.
If it’s a black and white title problem, you can do a quiet title action and that’s going to be okay. Somebody can review the record, and understand the issue quickly and easily. If it’s a murky title problem, though, if you want to have more certainty that the problems have been eliminated, you can Torrens the property and that effectively buries the old title problems.
ML: Is it possible to estimate the cost of that?
Dunlevy: Registering title is more than a simple quiet title action. A simple quiet title action may be $2,500 to $3,000, without publication of a summons. A Torrens registration is usually about $5,000 to $7,500.
ML: I would think that the smallest disputes that you deal with as a real property litigation expert are boundary line disputes?
Dunlevy: Actually, those are kind of some of the thorniest problems because the people inevitably hate each other and they’re fighting over really inconsequential pieces of property. That’s very common. Sometimes it’s hard to get people to think rationally about a one-foot strip of grass.
In commercial situations that kind of behavior is less common. And it’s less common to have boundary line issues with commercial property because there usually have been surveys, title companies, and lawyers involved.
Boundary line issues are common around water. Part of the reason goes back to the 1800s when the federal government sent out surveyors. They surveyed the whole state into one-mile squares. They did this using wagon wheels for measurement and magnetic compasses for direction. Minnesota is close to the zero magnetic variation line, which is the variation between magnetic north and true north, but there were three or more degrees of variation at the time of the US Government Survey.
Another problem with the 1850s surveys is that the wagon wheels worked fairly well to measure distance on the open prairie but when the surveyors got into forests, lakes and rivers, the wagon wheels did not work so well. So, for example, Lake Minnetonka has lots of boundary line issues because it’s a very irregular shaped lake and all the survey issues from back to the 1850s are still there. It’s similar with White Bear Lake. There are whole subdivisions in which every house crosses the boundary onto the neighboring property.
ML: If I’m a homeowner and I have a property on a lake front and the lake recedes, do I own more property?
Dunlevy: Maybe, maybe not. That’s called accretions and relictions. Relictions occur when the water recedes and accretion is when the ground builds up, like on a river bend, where sediment might deposit and result in more land on a river’s edge.
The first question is whether the water body is part of a navigable waterway. If it’s a navigable waterway the federal government owns the land underneath the water, whether it’s a lake or a river. Lake Superior is a navigable waterway, of course. So the federal government owns to the harbor line. Inside the harbor line, it’s under state jurisdiction. In Duluth, all of the slips in which ships are docked end at the harbor line. Other navigable waterways include Saint Croix River and the Mississippi River.
The next question is: was the property platted into the water? Because ownership of platted property line ends at the edge of the plat, and if the plat does not extend into the water, then you don’t own the land between the edge of the plat and the waterline.
If the property is unplatted, it has a metes and bounds description. With a metes and bounds legal description there’s a better chance if you would own that newly uncovered land at the water’s edge.
ML: You gave us a list of your practice areas and it includes work in bankruptcy lien avoidance defense, bankruptcy stay relief motions, bankruptcy plan objections, and bankruptcy adversary proceedings. Those areas don’t necessarily include real property issues. And I think of you as a real property expert. Are you involved in those kinds of matters when they involve real property?
Dunlevy: Yes. Typically, I’m going to bankruptcy court when there’s some real estate issue. Bankruptcy attorneys are not focused on real estate and I can bring valuable expertise when real property issues arise in the context of bankruptcies.
ML: You mentioned that you used to do more foreclosure work than you do now and you now only handle foreclosures when they’re complex for one reason or another. I expect that is low margin work that there are mortgage foreclosure outfits that can handle the work very inexpensively? So you’re sort of priced out of the garden variety foreclosure work?
Dunlevy: I think that’s probably a pretty good analysis. There are about a half a dozen law firms in town that do pretty much all of the residential mortgage foreclosure in the state. And it’s a high volume, low billing practice. And our firm is not set up for that kind of work. We don’t have that high volume practice and it is a very paralegal-intensive practice.
ML: But you did mention your handle TIC mortgage foreclosures? TIC stands for tenancy in common, of course. Is that a specialized kind of mortgage foreclosure? And if so, why?
Dunlevy: TIC mortgage foreclosures are just more complicated. TIC financing is an investment strategy, essentially, used to help people with 1031 exchanges, which are transactions that have certain tax advantages.
Imagine I owned Joe’s Plumbing in Sausalito. I retired and I sold the business. I sold the company and I sold the building. This could trigger significant capital gain tax liability for the sale of the building. But I can roll the money from the building sale into a 1031 exchange. I take the proceeds from the sale of real property and promptly buy other property. By repurchasing real property I don’t have to pay the capital gains tax on the money. TIC financing is for Joe from Joe’s Plumbing others like him: typically small business people and typically elderly people.
With TIC financing and 1031 exchanges, there is a developer who puts the deal together, who takes home a big paycheck when the deal is done, and a mortgage is placed on a commercial property somewhere with the TIC owners all having a small percentage ownership interest. These foreclosures are complicated because a lot of people are involved. Commercial foreclosures are always more complicated than residential ones. The lender may end up having a receiver taking control of the property. If there are title issues in commercial foreclosures, they’re going to be a bigger title issues because there is more money at stake than in the case of a single family residence.
ML: Another area of your practice involves fraud and forgery cases in the context of real property transactions. Are real property transactions for some reason more susceptible to fraud and forgery than other areas of commercial interaction?
Dunlevy: Yes. I think it’s just because of the dollar amounts involved. It’s harder to make a lot of money forging postage stamps than forging real estate documents. I’m not giving legal advice here, but if somebody is doing fraud and forgery, they probably want to do it on something where the dollar amounts justify to them they’re illegal behavior.
ML: So has part of your practice over the years always been dealing with fraud or forgery in the context of real property transactions?
Dunlevy: Yes. There’s not a lot forgery and fraud in Minnesota real property transactions, but it does happen. The general rule is that a forged document is a nullity. However, if it is Torrens property and a certificate of title is issued based on forged document and a good faith purchaser, that is, someone with no knowledge of the forgery, takes an interest in that property, the good faith purchaser will likely win on Torrens property. Fraud and forgery protection for good faith purchasers is a benefit of Torrens property. With abstract property, the forged document is still a nullity and a good faith purchaser may be stuck.
ML: I would have thought that, rather than outright fraud or forgery, common occurrences in real property transactions are false notarizations, as where somebody is not present and somebody else signs for them a signature is backdated?
Dunlevy:That fair to say that happens. I could not say that’s common. There was a case of back dating a real estate document for a US Senator, but I believe it was the date of the document not the date of the notary which was back dated. “As of” dates are used in real estate documents to make the effective date earlier in time than the execution date. But you have to have the current notary date. The notary dates should be the date that the documents actually signed, even if it has an “as of” date in the past.
ML: Other areas of your practice which piqued my interest are survey reviews and appraisal reviews. What is it that a lawyer brings to the table with a survey review and an appraisal review? You’re neither a surveyor nor an appraiser, right?
Dunlevy: Correct. But it is my job to try to figure out if there are problems with surveys and appraisals. For example, with a survey you’re looking for encroachments, adequate easements for utility services, and adequate access to the property. Title companies will do that as well and experienced with looking at surveys. Often there are attorney title examiners at the title companies who look at survey call out issues they see on the title commitment.
Reviewing surveys trying to identify problems, and whether it’s a fixable problem or a fatal problem. Most problems in real estate are fixable. Fatal title defects are not common.
ML: When you refer to a “fatal title defect,” that means somebody thinks they own the property and in fact they don’t own it at all.
Dunlevy: Right. That is a total failure of title.
As for the lawyer’s role in reviewing an appraisal, most appraisals are looked at by the lender. If you’re buying a house, the lenders require the borrower to pay for an appraisal to support the value at which you’re purchasing the house to support the amount of the loan. Appraisers are regulated by the state, so if the state thinks that an appraiser is consistently appraising property too high, the appraiser can be subject to discipline.
I defended an appraiser from regulatory discipline, and got another appraiser to defend the appraiser being censured. We were able to justify the comparable sales used in my client-appraiser’s appraisal as better than the state’s. In that context, I had to review several appraisals.
When I’m involved in real estate foreclosure, particularly on commercial property, I want to look at the appraisal learn things about the property I wouldn’t know from looking at the title documents. For example, there photographs and commentary in an appraisal that can give me information about the property.
ML: Finally, tell me about the part of your practice that you call, “agent defalcation.”
Dunlevy: That’s back in the fraud area. There are two types of title insurance companies. There are underwriters and agents, just like with car and home insurance agents. With car insurance your agent has a store front in your town and the underwriters offer insurance policies through agents. It’s the same with title insurance.
So I have been retained when title insurance agents have misbehaved. The typical scenario is similar to attorneys who misbehave. Title insurance agents see a lot of money in their escrow or trust account; they see their own relatively smaller paychecks and they get tempted by the money in the escrow accounts. They “borrow” some of the money. Then they “forget” to pay it back.
A pyramid or Ponzi scheme can develop. When money comes into the trust account to pay off a prior loan like in a mortgage refinance, they keep the money. Then they start making payments on the old mortgage so no one notices, but eventually they miss a payment. Then there’s a default letter and the borrowers say: “Wait a minute, I paid that mortgage off! Why am I getting a default letter when I paid that mortgage?”
When agents are defalcating like this, they often stop paying attention to their businesses. And so they fail to record documents and issue title policies, which is a large part of their job. Then the customers, often the lenders, complain to the underwriter: “This transaction closed a year and a half ago.Why don’t I have a title policy? Why don’t I have a recorded mortgage?”
In response to the complaints, the underwriter will go to the agent and investigate. On one of these cases, I met with the agent at his office along with the IRS agent and an FBI agent. He had the darkest huge bags under his eyes because, I’m sure, he was having a hard time sleeping, thinking about what life is going to be like in a federal penitentiary, which is where he went.
Another agent frequently recorded documents in the wrong place. He frequently recorded documents in the abstract records when the property was Torrens. It happened far too many times to be accidental. It is a fundamental rule with real estate law that you have to record in the right place.
But it’s easier to record an abstract. I could record my love letters in abstract if I want it to save them for posterity. So he would record purchase money mortgages in abstract and didn’t bother to record the deeds. Probably because he didn’t want to pay the deed tax or the delinquent real estate taxes. He recorded the mortgage, got a recording stamp on it, sent it to the lender, and the lender didn’t pay attention whether it was Torrens or abstract. The lender saw the stamp and said, “Okay, it’s recorded,” and was happy. We were able to get certified copies of many of those documents and re-record them in Torrens where they belonged.
ML: So in cases of agent defalcation, you find yourself retained by the underwriter?
Dunlevy: That’s correct.
ML: And when you are hired by an underwriter in cases of suspected or confirmed agent defalcation, are you retained to investigate and find out the scope of the problem, whether there is a problem and then to take remedial measures?
Dunlevy: Remediation is usually the first priority. The underwriter is trying to prevent claims by recording documents and issuing title policies that the agent failed to handle. The underwriters typically have their own audit teams and so they’re not typically hiring me to audit to determine how much money is missing. I do look for things like emails and bank account records, but my job is to clean up their mess with the real estate documents.[Previous Minnesota Litigator Profiles of Minnesota litigators: Brent Primus, a 40+ year Minnesota litigator with decades of experience in cargo and transportation law, Emily McNee, employer-side employment litigator, Anna Voss, Civil Chief of the United States Attorney’s Office, Kenneth U. Udoibok, fighting for justice from Nigeria to Minnesota and beyond, Bill Tilton, 40 year St. Paul civil rights lawyer, Kristine Kubes, advisor and litigator for construction professionals, Rachhana Srey, plaintiff’s side wage-and-hour litigator, Eric Nilsson, banking/lending litigation, Roshan Rajkumar, products liability defense, Jerry Alcazar, products liability defense, Liz Kramer, Arbitration Maven/Author of Arbitration Nation, Tim Nolan, Lawyer/poet, Laurie Vasicheck, 25 year veteran of the Minneapolis office of the EEOC, Jake Holdreith, an IP litigator for “drug dealers” (better known as pharmaceutical companies), Pam VanderWiel, lawyer for Minnesota municipalities, Bill Dossett, Executive Director of Minnesota’s Nice Ride bike-sharing program, Christina Snow, lender/servicer real estate and foreclosure lawyer, Clayton Halunen, plaintiffs’ employment lawyer, consumer rights lawyer, Stephen L. Smith, straddling a civil and a criminal litigation practice (and later appointed to the Ramsey County District Court bench), Kevin Dunlevy, Minnesota real property authority, Vildan Teske, consumer rights class action litigation and service members class actions, Jim Behrenbrinker, civil rights/excessive force cases, Eric Cooperstein, “ethics maven“, Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator, John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator, Katherine Mackinnon, ERISA plaintiff’s lawyer, Kristine Boylan, international IP/Complex Litigation lawyer,Karin Ciano, free-lance “federal sherpa,” Jerry Alcazar, products liability defense.] [For Minnesota Litigator profiles of judges, see: Retired U.S. Magistrate Judge Jeffrey J. Keyes, Hennepin County Judge SusanRobiner, Retired U.S. District Court Chief Judge James M. Rosenbaum (D. Minn.), Hennepin County Chief Judge Peter Cahill, Hennepin County Judge Thomas Fraser.]
Original (June 13, 2014): Minnesota Litigator has occasionally profiled Minnesota litigators with deep areas of expertise, who practice in niche areas (and, sometimes also with nation-wide practices). Due to the specialized nature of their practices, they might not be widely known in the Minnesota litigator community.
But Kevin Dunlevy is slightly different from earlier Minnesota Litigator profiles because he is very well known by a large part of the Minnesota civil litigation bar but he flies under the radar for many involved in Minnesota civil litigation.
Essentially, if you have experience and expertise in Minnesota real property law, then you know (or you really should know) Kevin Dunlevy. If you don’t, you need to know what you’re missing.
Kevin Dunlevy, you are one of a handful of lawyers whom I put in the uppermost echelon of Minnesota real property legal experts. How did you get where you are?
In law school, I planned to be a tax lawyer but all the CPAs (certified public accountants) had an edge and got better grades. The only thing I remember from real property law class was the professor holding up an abstract of title and saying “Never try to examine one of these.” I got my first job after law school at the Fryberger law firm in Duluth, and was trained in real property and how to practice law. Much of my work was examining abstracts.
Despite my professor’s advice, I enjoyed examining abstracts. Studying history is a hobby, and I could to see history when looking at abstracts and title indexes. I could see the history of Minnesota’s Arrowhead region’s logging, paper-mills, shipping, iron ore/taconite mining, tourism, booms and busts, in the title records. I also get to use my high school geometry working out the legal descriptions to real property.
And you’re now a private pilot, in addition to being an authority on Minnesota real property law, so you can fly over the land and actually read the history in the landscape?
When you fly over much of Minnesota, you can still see the boundaries established by U.S. government surveyors in the 1850s, when they surveyed much of the Upper Midwest and divided the land into mile square sections. The section line roads are clearly visible from the air and help a pilot with compass orientation.
I once flew a client over properties in Alexandria, Fergus Falls and Detroit Lakes. Afterward he agreed he could perceive much more about the property with his own eyes from the air than from Google Earth. I really enjoy the unique perspective from a small aircraft.
It’s not part of your legal practice, but tell me more about your avocation, flying…
In my forties, rather than having the “sports car mid-life crisis,” I obtained a private pilot’s license. A few weeks later, I joined Minnesota Wing Civil Air Patrol (CAP) on September 11, 2001. I am the Minnesota Wing Legal Officer and a Search and Rescue Mission Pilot. CAP’s small four-seat planes are well-suited for aerial searches because they are slower than most military aircraft, and are much less expensive to operate. I’ve given lots of kids their first airplane ride, by flying CAP cadets (13 to 18 years old) on orientation flights. Several of them have gone on to become pilots, which makes me proud.
CAP is only a pro bono part of my practice but I have met clients networking through CAP and my flying club. You never know when community involvement activity will result in work. I also view my CAP work as public service, which is good for society and personally rewarding, much like the time I spend at the Minnesota legislature as apro bono lobbyist for the Real Property Section of the state bar association. I received the MSBA President’s award a few years ago for over 550 pro bono hours in the state legislature during the foreclosure crisis.
So, getting back to your legal practice, how did you get from Duluth and the Fryberger law firm to having the bulk of your career in the Twin Cities?
I hold the Fryberger firm in high regard. Unfortunately, my wife did not like living in Duluth, so we moved to the Twin Cities. I accepted a job at a law firm with an office on the 48th floor of the IDS building.
The lofty office location may not have been good for me. Being up that high gave a sense of unreality, with people and cars below looking like tinker toys. I experienced my first career crash there. I puffed up my experience too much and things did not go very well on a work-out that I had been assigned. I was too aggressive with the debtor, and not sensitive enough to the situation. I then got the sense it was time to move on.
After that, I worked at the St. Paul law firm of Stein & Moore for about five years. There, I learned how to do work-outs, and that the key aspect is to determine the honesty of the debtors early on. If they are honest, treat them respectfully to encourage their natural desire to honor their debt obligations. If they are dishonest, they will only pay under pressure. The Fryberger firm was opening an office in St. Paul and recruited me back, but this time in St. Paul. I was there about five years.
Later, I was lured away by large firm which offered a substantial pay raise. This turned out to be another career mistake. I was recruited for my real property clients but I left behind my excellent staff at the Fryberger firm. My practice requires top-flight attorney and paralegal support and my practice suffered due to the learning curve of my new support staff. I strongly regret leaving good people behind. Choosing money over people was a mistake.
Next I joined Stephenson & Sanford in the Soo Line Building, eventually doubling my salary. I knew Mark Stephenson from my practice and Jim Sanford’s father was a partner at the Fryberger law firm, so there were good connections. About five years later the firm decided to move to Wayzata, which is a long drive from where I live in Ramsey County. So I decided to partner with Brad Beisel and form Beisel & Dunlevy, P.A.
I’d previously opposed Brad Beisel in a boundary line dispute. The property owners are often emotionally charged in boundary disputes and Brad’s client chased one of my clients, a pregnant woman, with a riding mower. Because of our friendship, Brad and I were able to negotiate a settlement without loss of life or limb, but both neighbors eventually sold and moved away.
Long before we became partners, I attended a presentation Brad gave on title insurance litigation, and after the presentation began to expand into that practice area. Brad’s partner, Jack Hoeschler, was retiring when my firm decided to move. So Brad and I talked about joining forces over lunch at Peter’s Grill. That was just over 11 years ago now. Things work well for us. We have a harmonious work environment and an excellent staff.
What is your practice like?
I have written title insurance and done title opinions. I’ve done lots of title exams, real estate transactions and closings. I also do creditor’s remedies work and learned my way to the courthouse doing judicial mortgage foreclosures. Real property litigation is a good niche. Not many people know real estate and litigation. In my experience, title company people are very nice and real estate lawyers are congenial, trying to get the deal done. This is unlike much of civil litigation. In some civil litigation practices, the first thing you hear is opposing counsel screaming at you on the phone. Probate lawyers are also pretty congenial. I like to reward congenial attorneys by buying them lunch after the matter is over.
What is your favorite case throughout your years of practice — a particular case that you would share stories from at a cocktail party?
One of my most interesting cases was representing an out-of-state family that invested about $10 million in Minnesota real estate in the 1980s. They wanted to shelter some of their assets from instability by investing in Minnesota.
Unfortunately, they hired a local property manager who embezzled about $1 million, so they sent a family member to manage the investment real estate. You can always trust your family, but they should have stayed with the embezzler. The family member took all the property with fraudulent conveyances, so the family hired me to recover whatever we could. I got a receiver appointed due to the fraud and the receiver liquidated the property that had not already been sold to good faith purchasers. We recovered several million dollars out of the $10 million investment, but much of the equity value was lost to foreclosures before the receiver was appointed due to lack of management. I’ve seen time and again that dishonest people don’t pay attention to managing their business.
If you could change an area of law, what would that be?
In my practice area, the biggest problem I see is defective titles from foreclosure by advertisement, the non-judicial foreclosure method used in about 95% of residential foreclosures, due to the recent judicially imposed strict compliance requirement.
There are three possible solutions: (1) Repeal the foreclosure by advertisement. This is a drastic remedy, and would result in 12,000 new civil filings a year for judicial foreclosures at present residential foreclosure rates. This would require more judges and more funding for the judicial system. (2) Comb through Minnesota’s foreclosure by advertisement statutes and determine which elements should have strict compliance and which warrant the prior standard of substantial compliance with prejudice. Arriving at consensus would be difficult for this solution. (3) Let foreclosure by advertisement die a death by a thousand cuts, which is most likely. A significant percentage of non-judicial foreclosures have minor technical defects. Under the old system, in which substantial compliance was sufficient, most of these defects were ignored. Now, if any mistakes are identified, the property may be unmarketable for a long time. Having vacant properties because of minor scrivener’s errors is not good for anyone. It is much better to get foreclosed properties quickly back into the stream of commerce. I recently helped draft an amendment to the mortgage foreclosure curative act that I hope will alleviate the negative social consequences of strict compliance.
Finally, what advice do you have for the starting lawyer?
Young lawyers should get involved in the bar association. Bar association activity is good for networking and for learning opportunities. I have learned more being on the Legislative Committee of the Real Property Section of the MSBA than from in all of the CLEs (continuing legal education classes) I’ve attended. And I have met lots of attorneys from all over the state.
Also, young lawyers need to understand the importance of marketing. The only assurance any private lawyer has of a job is having clients. If you are in-house, you have one client and you have to market that client. If you get all of your work from other lawyers at your firm, those lawyers are, in a sense, your clients.
You never know where next big file will come from. It may be from contacts in the community or the bar association, your website, blogging or social media. The interesting case I mentioned earlier came in through our firm’s website and a phone call from an investment banker.
Finally, know the universe of your knowledge, recognize when you are getting beyond the boundaries of your knowledge and ask questions of people with more knowledge. I much prefer a young associate to ask me rather than blunder forward. However, when an associate asks me what to do, I will not just give a yes or no answer. I want the associate to understand the rationale for the advice. Otherwise, the associate will be back with the same question. If the associate asks too many elementary questions, I make the associate think through the answer to develop their thinking ability. The service we give is our cognitive skills. Giving good service is the highest priority for all attorneys, not revenue. If an attorney gives good service, the money will come.[Previous Minnesota Litigator Profiles: Vildan Teske, consumer rights class action litigation and service members class actions, Jim Behrenbrinker, civil rights/excessive force cases, Eric Cooperstein, “ethics maven“, Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator, John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator, Katherine Mackinnon, ERISA plaintiff’s lawyer, Kristine Boylan, international IP/Complex Litigation lawyer.]