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Holland v. Florida, 2010 U.S. LEXIS 4946 (U.S. June 14, 2010)

Factual Background:

  A death row inmate has filed a writ of habeas corpus approximately five weeks late under the 1-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 28 U.S.C. § 2244(d),which the District Court denied pointing one year statute of limitation.

  The record facts reveal, inter alia, that Holland’s court-appointed attorney, Bradley Collins, had failed to file a timely federal petition, despite Holland’s many letters emphasizing the importance of doing so; that Collins apparently did not do the research necessary to find out the proper filing date, despite the fact that Holland had identified the applicable legal rules for him; that Collins failed to inform Holland in a timely manner that the State Supreme Court had decided his case, despite Holland’s many pleas for that information; and that Collins failed to communicate with Holland over a period of years, despite Holland’s pleas for responses  to his letters. Meanwhile, Holland repeatedly requested that the state courts and the Florida bar remove Collins from his case, which has been denied by the court responding that Holland could not file any pro se papers with the court while he was represented by counsel, including papers seeking new counsel. Based on these and other record facts, Holland asked the Federal District Court to toll the AEDPA limitations period for equitable reasons. It refused, holding that he had not demonstrated the due diligence necessary to invoke equitable tolling. Affirming, the Eleventh Circuit held that, regardless of diligence, Holland’s case did not constitute “extraordinary circumstances.” Specifically, it held that when a petitioner seeks to excuse a late filing based on his attorney’s unprofessional conduct, that conduct, even if grossly negligent, cannot justify equitable tolling absent proof of bad faith, dishonesty, divided loyalty, mental impairment, or the like.

Supreme Court’s Opinion:
  The Court first decided that timeliness provision in the federal habeas corpus statute is subject to equitable tolling.

  Several considerations support the Court’s holding. First, because AEDPA’s “statute of limitations defense . . . is not ‘jurisdictional,’” Day v. McDonough, 547 U.S. 198, 205, 213, 126 S. Ct. 1675, 164 L. Ed. 2d 376, it is subject to a “rebuttable presumption” in favor “of equitable tolling,” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S. Ct. 453, 112 L. Ed. 2d 435. The Eleventh Circuit’s per se standard is too rigid. A “petitioner” is “entitled to equitable tolling” if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing.

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From Law and Order to CSI lots of folk have became enthralled with the arena of people and law enforcement. These forms of shows have opened a giant field of interest in the criminal justice field of study.

An education in criminal justice might be the portal to several different job opportunities that you have been trying to find. Criminal justice is a stepping stone to several other career selections such as paralegal, lawyer, customs officer and many more.

Events from 9/11 to university shootings have led straight to an increase in the interest of criminal justice. However DNA test have set many free that have been wrongly detained. This trend has led straight to the need for highly qualified and trained individuals in the criminal justice world. If you have been looking to aid in making changes in this world, then a criminal justice role is where you must be. If you’re hunting for a career that will really make a difference, consider criminal justice. This field will be a great fit for those who are dedicated to serving their country.

You’ll learn a broad range of topics from forensics, info of the way in which the court system works, ethics in the criminal justice field, policing and plenty more. You may also learn a broad scope of the legal system that’s's taught in this program. From family law, business law, criminal law, property and other such elements. There’s much to be absorbed in this field of study, from how wise men behave, to understanding the forensics behind the crime as well as all the laws that govern our country and society. Courses are also offered in constitutional law, criminology and forensic science, including crime scene scenarios that introduce you to criminal investigation and crime scene preservation. Although this is a grueling field to step into it is highly rewarding both in the college room and in the job front.

Through this program, you’ll learn a good range of data that may be employed in many various work environments, including presidency offices such as customs officers and immigration.

Other fields that are open to you who have finished the criminal justice program is in forensics or psychology.

Whatever the requirement is the world of criminal justice is massive and has many branches. From govt to self job there’s significant opportunity.

Attending Criminal Justice University

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As we go through life, we may be inclined to judge others by their appearance and by the things we see on the exterior.  People are often judged unwittingly on looks, age, size, clothing, and other physical characteristics over which they may have little or no control because of the circumstances which have come into their lives.

Appearances can be deceiving and often do not reflect what a person is like underneath.  What really matters is what is in the heart of a person.  That does not show on first glance or just by outward appearances.  Getting to know a person is required to know the heart of that person.  Their feelings, concerns, and personality are not known at first glance. Reaching out and learning about the person quite likely will show a different opinion than a bad one received upon the first meeting.

It is so easy to make a quick and rash judgment about another person.  If someone rubs us the wrong way or seems to snub us, it is normal to immediately develop a huge dislike for that person.  There may be reasons for their actions which we cannot know or understand.  Sometimes getting to know a person will take away those feelings.  Other times we will never get to know them well enough to like them, but we are only hurting ourselves with our bad feelings toward another person.

A great, wonderful heart may be hiding within a body which is undesirable to look at without knowing the person.  Perhaps life has been difficult which has caused the person to show the wear and tear of a life on the street.  Maybe the loss of a loved one has caused such enormous pain that he has been unable to function in life, causing him to lose his job and home.  Perhaps the hardships of outside influences have caused a person to eat excessively and become obese.  Maybe he is a good and kind person inside, but the appearance of his body keeps people from getting to know him.

Several years ago I attended a convention in a large hotel.  At the same hotel at that time was another group holding a similar convention.  Theirs was an organization of people who were extremely overweight.  It was amazing to see so many people of such large sizes congregated in one spot.  It was, however, also interesting to see how cheerful they were.  They were laughing and enjoying each other and were obviously happy to be there.  They were jovial and in good spirits in the hallways and the elevators.  They were probably judged unfairly in other situations, but here they were among friends who knew them and loved them.

It is extremely difficult to know what is going on in another person’s life.  Walking in their shoes is not possible.  Understanding and compassion should be encouraged as a way of life.  Judging others unfairly happens all the time, but we should try not to be guilty of it ourselves.  We should be careful about judging others.

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The need of law firms in this corporate world rises day by day. As they have played a vital role in offering types of business law activities including intellectual property, litigation, real estate & construction , corporate & commercial, agency & franchise, merger & acquisitions, infrastructure, corporate & commercial law, taxation, infrastructure development, merger & acquisitions, technology transfers arbitration, joint venture & technology, trademark registration, company registration and lots more. All these services are recommended to follow by types of business houses. Whether small business owner, big business owner, private or public business every one recommended to follow rules and guidelines regulated by companies act of India.
In India you will number of law firms that offer wide variety of law firms comprises a large team of corporate and commercial lawyers and attorneys specialized in various faculties of International Business laws in order to offer customized practicable and affordable company legal services and law solutions to their domestic as well international clients. While offering services indian law firms providing their clients with all types inputs and valuable insight and complete guidance regarding the development in the field of economic and commercial climate and company law services in India. Here you will find clear and practicable advices by law firms that comprise the establishment of maintenance and expansion of the commercial and business activities demanded by their clients.
Like Singhania & Co. LLP that offers verities of law services at affordable rates that suits your business legal issues as well your budget. It was established in 1969 Mr. D.C. Singhania with one office and now today it have branches in every sates including law firms in New Delhi, law firms in Banglore, law firms in Mumbai, law firms in Kolkata, Chennai, law firms in hyderabad, law firms in Jaipur, law firms in Chandigarh. Not only in India, Singhania & Co. LLP have also business center – law firms in London and New York that services types legal and law services over there. All the offices are equipped with latest communication facilities, state of art along with trained paralegal staffs, lawyers and attorneys to ensure the international quality standards of company law services and conduction of in-depth research and investigations. Having presence in nearly all the states of the nation expertise in local laws becomes their forte that ensures their maximum customization of legal and company law issues handling with a global perspective.

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It is essential in an ordered society to believe that citizens who do wrong can be rehabilitated. This must be true for a society to function properly. In the U.S., our sentencing structures and guidelines are built with this very thing as a foundation.

However, there is a small portion of our society who despite all opportunities to rehabilitate, do not. This small portion of society who willingly choose to continue their lives of crime after having multiple types of intervention such as prison time, probation, alternative sentencing, drug court, inpatient drug treatment, etc…, are recognized as career criminals.

For several decades, studies have been conducted on crime and causalities by various bodies including major universities, criminologists and even the U.S. Department of Justice. These studies have found that approximately 80% of all crime is committed by 20% of all criminals. Some of the studies have provided slightly different numbers but all of them have found that a small group of criminals commit a vastly disproportionate number of crimes than their peers. (Wolfgang et al ., 1972; Petersilia et al ., 1978; Williams, 1979; Chaiken and Chaiken, 1982; Greenwood with Abrahamse, 1982, and Martin and Sherman, 1986).

These criminals are very antisocial and refuse any form of rehabilitative programs. The only time they might participate in such programs is when they are having their prison sentences shortened or risk of going to prison decreased because of their participation. They call it “buying time” because they know they are getting time off their sentences by participating in rehabilitative programs.

It is not uncommon for law enforcement officials all across the U.S. to encounter criminals on the streets who have amassed 10 or more felony convictions and that have been to prison 3, 4, 5 or more separate times in their past. When their background is examined, it is always found that these criminals have benefited from weak plea deals on cases, dismissals of cases in exchange for guilty pleas in other cases and various other forms of settlements of cases based on judicial economy rather than the two things that should be considered the most, protection of society and punishment.

Knowing all of this, it therefore seems to be common sense that law enforcement and the justice system should focus greater energy and resources toward those that commit the majority of the crimes. This is the very purpose of habitual criminal laws; to address the recidivists. In all 50 States and on the Federal level, there are habitual criminal laws of one kind or another. Some are very effective and some are not. 26 states currently have habitual criminal laws that include sentences of life without parole.

California has what is probably the most publicized campaign against habitual criminals known as the three strikes law. There is plenty of evidence that the laws in California have provided significant benefits both in protecting citizens from further harm but also in fiscal impact to the California prison system.

Calculations based on the California Crime Index indicate that between March of 1994 when three strikes was first signed into law and the summer of 2004, there was a dramatic drop in California’s crime rate. Whether or not such a decline over those 10 years could be attributable to the three strikes sentencing scheme, other sentencing legislation enacted during the decade, changes in demographics, economic trends, or a combination of these factors, the crime rate in California fell by approximately 45% during this 10-year period. (Prosecutors’ Perspective on California’s Three Strikes Law – A 10-Year Retrospective, published 2004)

The prison system in California has seen its prison population numbers stabilize and has actually seen a massive reduction in the rate of increased spending in the budget for corrections. During the 10 years preceding three strikes (1984 to 1994), state expenditures for corrections increased nearly 220%. This is more than four times greater than after the enactment of three strikes.

“Many police officers, corrections officers and others, both inside and outside the criminal justice system, have noted that criminals fear three strikes. These people have also found that some criminals have modified their behavior. For once felons are worried about the criminal justice system and that has proven to be a deterrent factor. Despite predictions that the law would incarcerate many youthful offenders, for the 83 three-strikers sentenced to date (1997), the average age is 37 years old. These are career criminals, not likely to “outgrow” their antisocial behavior with added maturity”. (Washington Policy Center, “Three Strikes You’re Out; A Reform that Worked”, published 1997)

The U.S. Supreme Court has frequently recognized that a State may punish persistent criminal offenders more severely than it punished other offenders:

Solem v Helm, 1983

Rummel v Estelle, 1980

Oyler v Boles, 1962

Graham v West Virginia, 1912

Even more recently on March 5th of 2003, the U.S. Supreme Court reviewed a California recidivist statute in Ewing v California. The finding was, habitual criminal sentences do not violate the Eighth Amendment of the U.S. Constitution which prohibits “cruel and unusual punishment”. The court noted “…it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.”

In Nevada, there are habitual criminal laws that are similar to those in California. At the end of February 2009, there were 525 inmates in the Nevada prison system that were serving habitual criminal sentences that essentially vary from between 5-20 years, 10 years to life or life without parole. This is only 3.9% of the total Nevada inmate population. Based on the decades of criminological studies showing that 80% of all crime is committed by 20% of all offenders, shouldn’t the number of inmates in prison who are serving habitual sentences be closer to 20% or even higher since this is the special breed of criminal that needs to be incarcerated the most?

One prime example of the positive effects of the habitual criminal laws in Nevada is a 2006 case on a defendant named Daimon Monroe, aka Daimon Hoyt (8th District Court of Nevada, case # 06-C-228752). Monroe had previously been convicted of 15 felony counts in a criminal case in 1992, 2 felony counts from a criminal case in 1993 and 2 felony counts from a criminal case in 1996. Almost all of his felony convictions involved him committing commercial burglaries. One of his prior convictions was for being an ex-felon in possession of a firearm. Another was for evading a police officer which arose from a car chase that resulted in a roll over crash. Monroe had been to prison two times before.

Monroe completed his second stint in prison and got out in 2001. Monroe returned to committing commercial burglaries almost immediately after getting out of prison. Monroe continued committing commercial burglaries between 2001 and 2006 without being caught by law enforcement.

It is conservatively approximated that Monroe had committed several hundred burglaries which was substantiated by testimony of his longtime girlfriend. The investigation resulted in the seizure of approximately $2,000,000 in stolen property from Monroe. Monroe had also amassed close to $200,000 in bank accounts from the sales of stolen property, which was seized. Monroe was arrested in 2006 and was convicted of over 30 more felony counts in three different jury trials.

In 2008, after the second of three different trials on Monroe, he was sentenced as a habitual criminal by District Court Judge Stewart Bell. At sentencing, Judge Bell told Monroe that in his 30 plus years of experience in the justice system that Monroe was the most prolific criminal he had ever encountered or had heard of. Judge Bell sentenced Monroe to consecutive terms of life without the possibility of parole.

To finish this story on Mr. Monroe, it should be known that he has also since been tried for soliciting the murder of a District Court Judge, a Prosecutor and the Police Detective who investigated him. He was convicted by a jury on three counts of soliciting murder and is awaiting sentencing. He is now a 48 time convicted felon and has never shown even the smallest hint of remorse whatsoever. He will also be standing trial in the near future for the sexual abuse of two juvenile female family members.  Also, in late 2009, one of the cases that Monroe was convicted in was overturned on a legal technicality and sent back for re-trial. So it seems that his courtroom affairs will continue on for quite some time.

Is this the kind of criminal that can be rehabilitated? Is this the sort of person that should be granted some kind of leniency and allowed to exist in society? Monroe is not a lone wolf. Stories like his dot the map across the country. These truly dangerous and inalterable criminals cannot exist in society without them trying to find various ways of taking advantage of others to the point of committing serious crimes against them.

Another defendant who received life without parole was Gregory Hermanski (8th District court of Nevada, case # 00-C-167783). Hermanski had previously been convicted of 12 felonies including multiple separate times for armed robbery and bank robbery. Hermanski had served 6 prior prison terms in Florida and in Federal prison prior to being treated as a habitual criminal in Nevada. Hermanski was convicted of Robbery with a Deadly Weapon and Burglary with a Deadly Weapon and was sentenced in 2003.

A presentencing report on Hermanski stated, “Mr. Hermanski has been afforded numerous opportunities to cope with his personal problems. He has been psychologically evaluated on repeated occasions. Counseling and coping mechanisms have been offered to him in virtually every form of therapeutic milieu. However, the defendant has refused to cooperate with any agency that has made an attempt to assist him. As a result, he has compiled an extensive criminal record. A review of that record is reflective of an individual who is a very serious threat to the safety of others.”

Is this the sort of individual that our system of jurisprudence should trust to exist in society? Would the justice system bear some responsibility if this person was ever released from prison and someday ended up harming someone? The Police, Prosecutors and Judges are empowered and entrusted by the people of their communities to protect them from these very kinds of predators.

The argument of barbarism often comes up when people discuss life sentences of criminals. I believe that it is a privilege to live in the United States of America. In many countries, these kinds of criminals would have been executed long before they established their prodigious rap sheets. It is not barbaric to separate predators from the prey. I argue that it is barbaric to continue letting the predators feast mercilessly on innocent people.

For those of you who live in jurisdictions that have strong habitual criminal laws, you should be thankful. For those of you that live in jurisdictions without, you should write your lawmakers.

Bradley is currently Co-Authoring a true crime story entitled “Repeat Offender; The true story of how the biggest thief Las Vegas ever knew was brought down”.

Check out the website: http://www.repeatoffenderonline.com 

or check it out on FaceBook: 

http://www.facebook.com/RepeatOffenderonline

Disclaimer:  The opinions in this article are not necessarily the official position of the Las Vegas Metropolitan Police Department and the author is not representing the Las Vegas Metropolitan Police Department in any official capacity with the contents of this article.

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Nevada Mortgage Laws About Deficiency Judgment

NEVADA MORTGAGE LAWS:
In this session, we are going to discuss in somewhat greater details the Nevada Mortgage Laws and how to handle the looming foreclosure crisis which has state of Nevada in the highest ranks in USA.

NRS 40.430 Action for recovery of debt secured by mortgage or other lien; “action” defined.
Nevada has only One Action Law for the recovery of any debt, or for the enforcement of any right secured by a mortgage or other lien upon real estate. That action must be in accordance with the provisions of NRS 40.430 to 40.459, inclusive. In that action, the judgment must be rendered for the amount found due the plaintiff, and the court, by its decree or judgment, may direct a sale of the encumbered property, or such part thereof as is necessary, and apply the proceeds of the sale as provided in NRS 40.462.

What is One Action Rule of Nevada?
This section must be construed to permit a secured creditor to realize upon the collateral for a debt or other obligation agreed upon by the debtor and creditor when the debt or other obligation was incurred. A sale directed by the court pursuant to subsection 1 must be conducted in the same manner as the sale of real property upon execution, by the sheriff of the county in which the encumbered land is situated, and if the encumbered land is situated in two or more counties, the court shall direct the sheriff of one of the counties to conduct the sale with like proceedings and effect as if the whole of the encumbered land were situated in that county.

What this One Action Rule Does Not Include?
(a) To appoint a receiver for, or obtain possession of, any real or personal collateral for the debt or as provided in NRS 32.015.
(b) To enforce a security interest in, or the assignment of, any rents, issues, profits or other income of any real or personal property.
(c) To enforce a mortgage or other lien upon any real or personal collateral located outside of the State which does not, except as required under the laws of that jurisdiction, result in a personal judgment against the debtor.
(d) For the recovery of damages arising from the commission of a tort, including a recovery under NRS 40.750, or the recovery of any declaratory or equitable relief.
(e) For the exercise of a power of sale pursuant to NRS 107.080.
(f) For the exercise of any right or remedy authorized by chapter 104 of NRS or by the Uniform Commercial Code as enacted in any other state.
(g) For the exercise of any right to set off, or to enforce a pledge in, a deposit account pursuant to a written agreement or pledge.
(h) To draw under a letter of credit.
(i) To enforce an agreement with a surety or guarantor if enforcement of the mortgage or other lien has been automatically stayed pursuant to 11 U.S.C. § 362 or pursuant to an order of a federal bankruptcy court under any other provision of the United States Bankruptcy Code for not less than 120 days following the mailing of notice to the surety or guarantor pursuant to subsection 1 of NRS 107.095.
(j) To collect any debt, or enforce any right, secured by a mortgage or other lien on real property if the property has been sold to a person other than the creditor to satisfy, in whole or in part, a debt or other right secured by a senior mortgage or other senior lien on the property.
(k) Relating to any proceeding in bankruptcy, including the filing of a proof of claim, seeking relief from an automatic stay and any other action to determine the amount or validity of a debt.
(l) For filing a claim pursuant to chapter 147 of NRS or to enforce such a claim which has been disallowed.
(m) Which does not include the collection of the debt or realization of the collateral securing the debt.
(n) Pursuant to NRS 40.507 or 40.508.
(o) Which is exempted from the provisions of this section by specific statute.
(p) To recover costs of suit, costs and expenses of sale, attorneys’ fees and other incidental relief in connection with any action authorized by this subsection.

How Mortgage is Defined Under Nevada Laws?
NRS 40.433 “Mortgage or other lien” defined. A “mortgage or other lien” includes a deed of trust, but does not include a lien which arises pursuant to chapter 108 of NRS, pursuant to an assessment under chapter 116, 117, 119A or 278A of NRS or pursuant to a judgment or decree of any court of competent jurisdiction.

The Judicial Proceedings Are An Affirmative Defense
1. The commencement of or participation in a judicial proceeding in violation of NRS 40.430 does not forfeit any of the rights of a secured creditor in any real or personal collateral, or impair the ability of the creditor to realize upon any real or personal collateral, if the judicial proceeding is:
(a) Stayed or dismissed before entry of a final judgment; or
(b) Converted into an action which does not violate NRS 40.430.
2. If the provisions of NRS 40.430 are timely interposed as an affirmative defense in such a judicial proceeding, upon the motion of any party to the proceeding the court shall:
(a) Dismiss the proceeding without prejudice; or
(b) Grant a continuance and order the amendment of the pleadings to convert the proceeding into an action which does not violate NRS 40.430.
3. The failure to interpose, before the entry of a final judgment, the provisions of NRS 40.430 as an affirmative defense in such a proceeding waives the defense in that proceeding. Such a failure does not affect the validity of the final judgment, but entry of the final judgment releases and discharges the mortgage or other lien.
4. As used in this section, “final judgment” means a judgment which imposes personal liability on the debtor for the payment of money and which may be appealed under the Nevada Rules of Appellate Procedure.

How Surplus Money is Distributed?
NRS 40.440 Disposition of surplus money. If there is surplus money remaining after payment of the amount due on the mortgage or other lien, with costs, the court may cause the same to be paid to the person entitled to it pursuant to NRS 40.462, and in the meantime may direct it to be deposited in court.
FORECLOSURE SALES AND DEFICIENCY JUDGMENTS
I have been asked about deficiency judgment many times. In Nevada, the time period for filing a deficiency judgment by your lender is only 6 months. However, they can file this deficiency judgment and can enforce it later against you. I have been asked frequently about the laws of deficiency judgment in Nevada. This is a concise summary of all of the laws of deficiency judgment. Please read carefully and seek the help of a licensed attorney before doing anything or filing any action.

What is an Indebteness?
NRS 40.451 “Indebtedness” defined. “indebtedness” means the principal balance of the obligation secured by a mortgage or other lien on real property, together with all interest accrued and unpaid prior to the time of foreclosure sale, all costs and fees of such a sale, all advances made with respect to the property by the beneficiary, and all other amounts secured by the mortgage or other lien on the real property in favor of the person seeking the deficiency judgment. Such amount constituting a lien is limited to the amount of the consideration paid by the lienholder.

NRS 40.453 Waiver of rights in documents relating to sale of real property against public policy and unenforceable; exception. Except as otherwise provided in NRS 40.495:
1. It is hereby declared by the Legislature to be against public policy for any document relating to the sale of real property to contain any provision whereby a mortgagor or the grantor of a deed of trust or a guarantor or surety of the indebtedness secured thereby, waives any right secured to him by the laws of this state.
2. A court shall not enforce any such provision.

How Deficiency Judgment is Awarded?
NRS 40.455 Deficiency judgment: Award to judgment creditor or beneficiary of deed of trust.
1. Upon application of the judgment creditor or the beneficiary of the deed of trust within 6 months after the date of the foreclosure sale or the trustee’s sale held pursuant to NRS 107.080, respectively, and after the required hearing, the court shall award a deficiency judgment to the judgment creditor or the beneficiary of the deed of trust if it appears from the sheriff’s return or the recital of consideration in the trustee’s deed that there is a deficiency of the proceeds of the sale and a balance remaining due to the judgment creditor or the beneficiary of the deed of trust, respectively.
2. If the indebtedness is secured by more than one parcel of real property, more than one interest in the real property or more than one mortgage or deed of trust, the 6-month period begins to run after the date of the foreclosure sale or trustee’s sale of the last parcel or other interest in the real property securing the indebtedness, but in no event may the application be filed more than 2 years after the initial foreclosure sale or trustee’s sale.

What is the Procedure for a Hearing of a Deficiency Judgment in Nevada? NRS 40.457 1. Before awarding a deficiency judgment under NRS 40.455, the court shall hold a hearing and shall take evidence presented by either party concerning the fair market value of the property sold as of the date of foreclosure sale or trustee’s sale. Notice of such hearing shall be served upon all defendants who have appeared in the action and against whom a deficiency judgment is sought, or upon their attorneys of record, at least 15 days before the date set for hearing.
2. Upon application of any party made at least 10 days before the date set for the hearing the court shall, or upon its own motion the court may, appoint an appraiser to appraise the property sold as of the date of foreclosure sale or trustee’s sale. Such appraiser shall file with the clerk his appraisal, which is admissible in evidence. The appraiser shall take an oath that he has truly, honestly and impartially appraised the property to the best of his knowledge and ability. Any appraiser so appointed may be called and examined as a witness by any party or by the court. The court shall fix a reasonable compensation for the appraiser, but his fee shall not exceed similar fees for similar services in the county where the encumbered land is situated.
NRS 40.459 Limitations on amount of money judgment. After the hearing, the court shall award a money judgment against the debtor, guarantor or surety who is personally liable for the debt. The court shall not render judgment for more than:
1. The amount by which the amount of the indebtedness which was secured exceeds the fair market value of the property sold at the time of the sale, with interest from the date of the sale; or
2. The amount which is the difference between the amount for which the property was actually sold and the amount of the indebtedness which was secured, with interest from the date of sale, whichever is the lesser amount.
NRS 40.462 Distribution of proceeds of foreclosure sale.
1. Except as otherwise provided by specific statute, this section governs the distribution of the proceeds of a foreclosure sale. The provisions of NRS 40.455, 40.457 and 40.459 do not affect the right to receive those proceeds, which vests at the time of the foreclosure sale. The purchase of any interest in the property at the foreclosure sale, and the subsequent disposition of the property, does not affect the right of the purchaser to the distribution of proceeds pursuant to paragraph (c) of subsection 2 of this section, or to obtain a deficiency judgment pursuant to NRS 40.455, 40.457 and 40.459.
2. The proceeds of a foreclosure sale must be distributed in the following order of priority:
(a) Payment of the reasonable expenses of taking possession, maintaining, protecting and leasing the property, the costs and fees of the foreclosure sale, including reasonable trustee’s fees, applicable taxes and the cost of title insurance and, to the extent provided in the legally enforceable terms of the mortgage or lien, any advances, reasonable attorney’s fees and other legal expenses incurred by the foreclosing creditor and the person conducting the foreclosure sale.
(b) Satisfaction of the obligation being enforced by the foreclosure sale.
(c) Satisfaction of obligations secured by any junior mortgages or liens on the property, in their order of priority.
(d) Payment of the balance of the proceeds, if any, to the debtor or his successor in interest.
? If there are conflicting claims to any portion of the proceeds, the person conducting the foreclosure sale is not required to distribute that portion of the proceeds until the validity of the conflicting claims is determined through interpleader or otherwise to his satisfaction.
3. A person who claims a right to receive the proceeds of a foreclosure sale pursuant to paragraph (c) of subsection 2 must, upon the written demand of the person conducting the foreclosure sale, provide:
(a) Proof of the obligation upon which he claims his right to the proceeds; and
(b) Proof of his interest in the mortgage or lien, unless that proof appears in the official records of a county in which the property is located.
? Such a demand is effective upon personal delivery or upon mailing by registered or certified mail, return receipt requested, to the last known address of the claimant. Failure of a claimant to provide the required proof within 15 days after the effective date of the demand waives his right to receive those proceeds.
4. As used in this section, “foreclosure sale” means the sale of real property to enforce an obligation secured by a mortgage or lien on the property, including the exercise of a trustee’s power of sale pursuant to NRS 107.080.
NRS 40.463 Agreement for assistance in recovering proceeds of foreclosure sale due to debtor or successor in interest; requirements for enforceable agreement; fee must be reasonable.
1. Except as otherwise provided in this section, a debtor or his successor in interest may enter into an agreement with a third party that provides for the third party to assist in the recovery of any balance of the proceeds of a foreclosure sale due to the debtor or his successor in interest pursuant to paragraph (d) of subsection 2 of NRS 40.462.
2. An agreement pursuant to subsection 1:
(a) Must:
(1) Be in writing;
(2) Be signed by the debtor or his successor in interest; and
(3) Contain an acknowledgment of the signature of the debtor or his successor in interest by a notary public; and
(b) May not be entered into less than 30 days after the date on which the foreclosure sale was conducted.
3. Any agreement entered into pursuant to this section that does not comply with subsection 2 is void and unenforceable.
4. Any fee charged by a third party for services provided pursuant to an agreement entered into pursuant to this section must be reasonable. A fee that exceeds $2,500, excluding attorney’s fees and costs, is presumed to be unreasonable. A court shall not enforce an obligation to pay any unreasonable fee, but may require a debtor to pay a reasonable fee that is less than the amount set forth in the agreement.
5. A third party may apply to the court for permission to charge a fee that exceeds $2,500. Any third party applying to the court pursuant to this subsection has the burden of establishing to the court that the fee is reasonable.
6. This section does not preclude a debtor or his successor in interest from contesting the reasonableness of any fee set forth in an agreement entered into pursuant to this section.
7. As used in this section:
(a) “Creditor” means a person due an obligation being enforced by a foreclosure sale conducted pursuant to NRS 40.451 to 40.463, inclusive.
(b) “Debtor” means a person, or the successor in interest of a person, who owes an obligation being enforced by a foreclosure sale conducted pursuant to NRS 40.451 to 40.463, inclusive.
(c) “Third party” means a person who is neither the debtor nor the creditor of a particular obligation being enforced by a foreclosure sale conducted pursuant to NRS 40.451 to 40.463, inclusive.

RIGHTS OF GUARANTOR, SURETY OR OBLIGOR IN REAL PROPERTY

NRS 40.465 “Indebtedness” defined. As used in NRS 40.475, 40.485 and 40.495, “indebtedness” means the principal balance of the obligation, together with all accrued and unpaid interest, and those costs, fees, advances and other amounts secured by the mortgage or lien upon real property.
NRS 40.475 Remedy against mortgagor or grantor; assignment of creditor’s rights to guarantor, surety or obligor. Upon full satisfaction by a guarantor, surety or other obligor, other than the mortgagor or grantor of a deed of trust, of the indebtedness secured by a mortgage or lien upon real property, the paying guarantor, surety or other obligor is entitled to enforce every remedy which the creditor then has against the mortgagor or grantor of the mortgage or lien upon real property, and is entitled to an assignment from the creditor of all of the rights which the creditor then has by way of security for the performance of the indebtedness.
NRS 40.485 Interest in proceeds of secured indebtedness upon partial satisfaction of indebtedness. Immediately upon partial satisfaction by a guarantor, surety or other obligor, other than the mortgagor or grantor of a deed of trust, of the indebtedness secured by a mortgage or lien upon real property, the paying guarantor, surety or other obligor automatically, by operation of law and without further action, receives an interest in the proceeds of the indebtedness secured by the mortgage or lien to the extent of the partial satisfaction, subject only to the creditor’s prior right to recover the balance of the indebtedness owed by the mortgagor or grantor.

NRS 40.495 Waiver of rights; separate action to enforce obligation; available defenses.
1. The provisions of NRS 40.475 and 40.485 may be waived by the guarantor, surety or other obligor only after default.
2. Except as otherwise provided in subsection 4, a guarantor, surety or other obligor, other than the mortgagor or grantor of a deed of trust, may waive the provisions of NRS 40.430. If a guarantor, surety or other obligor waives the provisions of NRS 40.430, an action for the enforcement of that person’s obligation to pay, satisfy or purchase all or part of an indebtedness or obligation secured by a mortgage or lien upon real property may be maintained separately and independently from:
(a) An action on the debt;
(b) The exercise of any power of sale;
(c) Any action to foreclose or otherwise enforce a mortgage or lien and the indebtedness or obligations secured thereby; and
(d) Any other proceeding against a mortgagor or grantor of a deed of trust.
3. If the obligee maintains an action to foreclose or otherwise enforce a mortgage or lien and the indebtedness or obligations secured thereby, the guarantor, surety or other obligor may assert any legal or equitable defenses provided pursuant to the provisions of NRS 40.451 to 40.463, inclusive.
4. The provisions of NRS 40.430 may not be waived by a guarantor, surety or other obligor if the mortgage or lien:
(a) Secures an indebtedness for which the principal balance of the obligation was never greater than $500,000;
(b) Secures an indebtedness to a seller of real property for which the obligation was originally extended to the seller for any portion of the purchase price;
(c) Is secured by real property which is used primarily for the production of farm products as of the date the mortgage or lien upon the real property is created; or
(d) Is secured by real property upon which:
(1) The owner maintains his principal residence;
(2) There is not more than one residen

Criminal law can be generally defined as the branch of law that majorly classifies crimes, treats of their nature, and provides best effective ways or approaches that can be followed for their punishment. In recent times, it has emerged as one of the few fields that are attracting many young aspirants to make their career. In fact, in the last few years the ratio of students practicing criminal law has increased rapidly. These days, many young lawyers are engaged in criminal law practice work for a governmental agency on either the federal or local level or in the non-indigent defense work for solo or small private practices. Today it is counted among one of the major vital parts of the legal system in the United States and offer rewards that are very exciting and better than any other profession. However, the field of criminal law even features some of the most important facts that are worth to be known.

Today if we talk about the criminal law then it is very important to understand the exact meaning or the classification of crimes. In simple terms, crimes can be classified as felony or misdemeanor, but there is a slight difference between felony and misdemeanor. The basic distinction between felonies and misdemeanors rests on the penalty and the power of imprisonment. Basically, a misdemeanor is defined as an offense for which a punishment other than detention or death in the state prison is followed by the law. Besides this, there are many people who often get confused with the term “degree of crime”. Now, the term degree of crime primarily relates to distinctions in the guiltiness of a crime because of the circumstances surrounding its commission.

In the United States, the power to define crimes and set penalty generally depends on the legislatures of the United States, the states, and the territories along with the principal authority associated to that of the individual states. In addition, a common-law crime is one punishable universal regulation, as distinguished from crimes specified by statute. However, these days in many U.S. jurisdictions, including those in which inclusive criminal law has been enacted the common law in relative to the criminal process.

The procedure in criminal cases is significantly similar all through the United States. If the offense is severe, the case is initially passed to a grand jury, which draws up condemnation if there is enough proof to validate the trial, or else it discharges the charged convict. However, it is really surprising to find that in the United States, the offenders proved as guilty in the criminal offence may be liable to get life long imprisonment, which can go up to 100 years. Moreover, the electric chair punishments and other severe criminal punishments have been amended in US, many years back.

If we talk about the criminal laws in gulf countries then the picture is totally different. The laws are very strict with regard to the execution of punishments. In gulf countries, the criminal laws are majorly governed by the Islamic code of conduct or ‘Shariat’ and there is no subject of any kind of amendments. In the United Kingdom, criminal acts are majorly considered as crime against the entire community. And, moreover, the state in addition to different international organizations plays a major role for crime prevention and deal with convicted offenders. The criminal laws vary across the world, but the basic of most of these laws is based on one prime rule to punish the culprit.

Nevertheless, today if we talk in terms of career options in the field of criminal law then there are numerous opportunities. Many students are working on a volunteer basis and gaining experience with externships. The field is very broad one with various options available in almost every sector of industry, both private and public.

Incoming search terms:

All lawyers – solo and large-firm attorneys alike – know that time is money. Days must be planned with the utmost efficiency in order to keep a law practice running smoothly. Lawyers and attorneys must spend the majority of their time and efforts representing clients; but the day-to-day running of a law office is like any other business.

Clients must be billed, payments tracked and accounts kept up to date, and receiving payments in a variety of formats is time consuming. Sometimes, law firm cash management can be anything but profitable.

It stands to reason that if all of one’s time is consumed by business administration issues like collecting on unpaid accounts, banking and so on – this “multi-tasking” will not only waste time, but also cause the firm to actually lose profits for the following reasons:

1. Less time will be spent billing hours and making money

2. Money will be lost on accounts owing, and time will be lost pursuing them

So what’s the solution – getting paid up-front, or perhaps using a trust account?

Both of those may be options, but the most adaptable and sensible option is to accept credit cards from your clients. This opens your doors to more clients – as it makes it easier for “cash-strapped” clients to pay legal fees. It also makes it easier to collect on A/R, because you can simply process the payment in a matter of seconds and the issue will be dealt with – instead of waiting for checks, or running all over town to collect them.

However, today’s credit card mentality has created a dilemma, particularly for professionals working independently or with small firms and businesses. Typically, the procedure for accepting credit card payments has been fraught with rules, regulations and a lot of stress. And when time is short anyway, the process involved in setting up such a system can seem endless. The costs to set up a “merchant account” can seem intimidating.

Concentrating on a law practice is an ongoing endeavor; but the task of providing credit card acceptance capabilities can be downright overwhelming. The need to know everything there is to know about merchant services has caused thousands of professionals and business hopefuls to throw up their arms in frustration and declare “No credit cards accepted!”

Issues involving statement and transaction fees, in addition to annual fees, programs fees and monthly minimums are enough to annoy anyone, and it doesn’t end there. So, in the long run, attorneys lose potential clients desperately in need for attorney services.

Daring souls who brave the murky waves of rules, regulations, waivers and fees to invest in the actual equipment/startup cost needed to perform a credit card transaction still face contracts and agreements for that equipment, and hours of research. Cost for leasing credit card processing tools ranges from $29.00 to $80.00 a month, sometimes more. Lease terms generally run 36-48 months and canceling the lease is often not an option. Once you sign, you’re stuck. Leasers must also pay state tax, if applicable, and may also find themselves paying for “Loss or Destruction” of that equipment as well. If you default on your lease, it’s your credit report that suffers.

As a result, attorneys often find themselves stuck between a rock and a hard place. And many attorneys, especially those working solo, or even those who belong to small firms, can ill afford to spend hundreds, sometimes thousands of dollars setting up and maintaining a credit card billing system for their business. Yet not doing so can cost them thousands of dollars in earning potential – and in terms of collecting on legal fees owed while simplifying their law firm cash management process overall.

So what to do? What options are out there? Granted, not many. Still, one solution is growing in popularity. It’s called mobile credit card processing, and it’s a unique service provided by companies like “Accept by Phone”. Finally, professionals, especially lawyers, can accept credit cards without the mundane and frustrating hassle of more “traditional” credit card processing methods. Many potential clients, including those going through divorce, those facing criminal charges and whose account assets have been frozen, and countless others seeking the services of an attorney often don’t have access to cash or checking accounts. Mobile credit card processing services enable both clients and attorneys to complete payment transactions painlessly with a credit card.

Most mobile credit card processors allow attorneys to accept credit card payments via landline and through cell phones, instantly. No more waiting for checks to arrive and, more importantly, to clear. Credit card payments don’t bounce. Using such a service also cuts overhead expenses and eradicates the fees and regulations of more traditional methods.

The catch? Believe it or not, there isn’t one. Some services actually cost as little as $5.00 a month (in fees) to use, along with a percentage on each sale (usually ranging from 3.95% to 5%). Most services have no annual fees, no transaction fees, no minimums or volume restrictions. There are no cancellations fees and no terminals needed. And all you need is a phone line, cell phone or a PDA.

How can that be? Besides technology that truly places the world at our fingertips, this “accept by phone” system is very low maintenance for the account provider (financial institution that issues the merchant account), and the account setup/approval cost is minimal in comparison to a traditional account. These services utilize an automated system that enables callers and vendors to complete transactions in a matter of seconds and with a minimum of hassle. And as a result, both the merchant provider and the merchant (you) save big time.

These unique merchant services offer a win-win situation; clients receive immediate legal representation that fits into their financial ability and preference, and attorneys get paid, instantly, just by using their cell phone for 30 seconds – simplifying their law firm cash management struggles in one fell swoop.

What’s not to like about that?