Appealing Appeals Applied, On Lines & Inner Nets, Publicly Recorded

A Daughter’s $80,000 Facebook Post

From the “Think Before You Post” File

Secrets Suck

A daughter violated the confidentiality clause in her father’s Settlement Agreement with a braggadocio posting on Facebook. Inevitably, the young lady’s post eventually drew the attention of the defense counsel in the employment discrimination case.

 “Mama and Papa … won the case against Gulliver,” she wrote referencing the  the employer. “Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

Broken Promise

The trial court did not find the post a breach of the agreement. However, on appeal to Florida’s Third Circuit Court of Appeal, the appellate court reversed the trial court stating, “[B]efore the ink was dry on the agreement, and notwithstanding the clear language … mandating confidentiality, [he] violated the agreement by doing exactly what he had promised not to do.”  Apparently, the daughter had 1200 friends on the site so there was no claiming it was a private message or not intended for public consumption.

Unambiguously Expen$ive

After finding the terms of the agreement clear and unambiguous, the Court held:

In this case, the plain, unambiguous meaning of … the agreement between [the father] and the school is that neither [he] nor his wife would “either directly or indirectly” disclose to anyone (other than their lawyers or other professionals) “any information” regarding the existence or the terms of the parties’ agreement.

They disclosed it to their daughter and she disclosed to at least 1200 other people on-line with the Facebook post. This is a real expensive way to learn the internet is a public forum. It also is an expensive way to find out how easily a confidentiality agreement is breached.

Read the appellate decision here and more info from the news story is below.


Daughter’s Facebook boast costs former Gulliver Prep headmaster $80,000 discrimination settlement – Schools –


Appealing Appeals Applied, Civilized Proceedings

Freely Allowed As Justice Requires . . .

In re Weber, 392 B.R. 760 (8th Cir.BAP 2008)


     Case Conclusion Date:September 5, 2008     Practice Area:Appeals
                         REMANDED IN PART                                   
Description:I think every successful appeal is my favorite, but . . .

Adverse  7

This one was cool. I was litigation counsel at the district court level in an adversary proceeding challenging a Chapter 7 case due to fraud in US Bankruptcy Court in the Minnesota District. For evidence reasons (i.e. lacking), we did not move to amend the Adversary Complaint until less than a week (5 days) before trial. The claim we intended to add would alter the legal standard we needed to prove (used the loan proceeds to pay a tax debt under 11 U.S.C. § 523(a)(14)) to prevail and have the debt exempt from discharge. It was short notice and on the eve of trial, but the amendment would not have involved any delay or further discovery. So I said.

Factually Fraudulent

Same set of fraud facts, just viewed through a different lens. At least that was my argument. Nothing new here, just a different theory. No harm, no foul.  Nonetheless, the motion was so firmly denied even I thought I must have been out in left field– for about a minute. Not long after that the case tried and was lost after a bench trial. Time to shine on appeal and make it all right.

Discretion Abused

We appealed on a complex bankruptcy ground (debt found not exempt under 11 U.S.C. § 523(a)(2)(A) or (B)) to the 8th Circuit’s Bankruptcy Appellate Panel (BAP) but to no avail (clear error standard with de novo review). I insisted on raising the simpler, procedural error claim the Rule 15 motion to amend was wrongfully denied (abuse of discretion standard though).  As the appellate court said in the beginning of the Opinion, with an abuse of discretion standard they had to be left with a, “definite and firm conviction that the bankruptcy court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” A high bar to meet.

Harsh Denial

In denying the motion to amend before trial, the Judge did not mince words and it always sucks to read words like that about your conduct. As the BAP, citing the order denying the motion for leave to amend so it may live on forever provided in part:

None of these factual or legal issues are necessarily obvious and it would be unfair on the literal verge of trial to require the defendant to defend that claim. The plaintiff either intentionally or negligently failed to plead this cause of action originally or anytime prior to trial and it would be inequitable to allow her to do [so] (sic) now.

I never did understand why anyone would have intentionally left out the claim that wins in the end. But by the time the trial was over, it was obvious that if we could have amended the pleading and added the tax-related claim, we would have won. Hence, the necessity of the appeal.

Taking Exception

After quoting the stinging rebuke in the trial court’s order, the Appellate Panel shot right back, “We take exception to several of these points.” After that, the BAP went through the analysis they thought should apply.

They found the fact the debtor withheld discovery so we didn’t get the evidence needed to assert the claim until late in the game (and brought the motion the same day–5 days before trial) weighed in our favor. It was a fairly straightforward claim (for bankruptcy cases), that as usual the”§ 523(a)(1) claims turn on a simple determination of whether the tax debt paid arose from a tax year for which a return was due after three years before the date of the filing of a debtor’s bankruptcy petition.” If you followed that, go to law school.

Practically Speaking

The appellate court also found the amendment would not have resulted in unfairness or inequity to the Debtor, especially considering he was partly responsible for the delay in filing the motion to amend since he didn’t produce a check to the I.R.S. until well after it was due. And they were worried the debtor would get screwed?

But to top things off, the Appeal concludes the analysis with:

Finally, from a practical standpoint, it would have been a simple (and fair) matter to continue the trial to permit the Debtor to adequately prepare a defense to the § 523(a)(14) claim in light of the facts that this matter proceeded to trial less than five months after the complaint was filed, no previous continuances had been sought, and the only witnesses called to testify at the trial were Peterson and the Debtor.

In the end, the wise appellate panel of Judges decided a reversal of the order denying the motion for leave to amend was what lady justice said had to be done. Discretion was abused. The case was remanded back to the bankruptcy court and where we waited for a new trial date to be set.

Efficiently Effective

Instead of getting a date, the Trial Judge promptly reversed himself. By applying the same facts he already found at the trial to the new claim (technically not even plead out yet) he entered judgment in our client’s favor and the debt was excepted from discharge. It was nice to win. And I, for one, don’t mind winning when no one is looking since who else really understands what went on anyway unless they are directly involved. But the written opinion will live on!

There is a lot to be said about a truly efficient, no-nonsense Judge!


Discovered on Demand, Legally Educated, Publicly Recorded

MNCIS–Minnesota Court Information System

Court Records–More Than You’d Think

Minnesota Trial Court Public Access websites, mote commonly known as “MNCIS,” (Minnesota Court Information System), are a powerful and cost-effective tool for discovering information on anyone involved in the Minnesota trial court system. MNCIS has docket information for Minnesota civil and criminal court cases, judgment records and court calendars. All of these records can be used to determine if an individual has existing, unpaid judgments, is being sued, or has been sued, if there is a criminal court case open, at least one that has resulted in a conviction or guilty plea, if there has been a divorce, child custody case, adoption, name change, probate proceeding and what time and where a court appearance is through the court calendars, and other information.

Free (taxpayer funded) on the Internet

Although MNCIS on the web (Click HERE for Access) is not reliable enough for comprehensive searches and should not be used as your only criminal background check tool (more to come, but in the meantime enjoy this try instead, technically still “free” but slowly and surely being overrun with ads and pay options) it can tell you if a warrant is out for someone. You only need to know the person’s name, but not necessarily even the correct spelling. When performing a search by Party name, try checking the box for Soundex-a  “sounds like” search in English for use when you do not know the proper spelling of a name).

Privacy Concerns

Although you used to be able to get more information, privacy concerns have restricted some data available over the internet on MNCIS, However, when one hand taketh the other hand giveth: A lot of the records that are not available on the web version of MNCIS can be obtained by going to a courthouse and using (for free) the court’s public access computer terminals.

As a non-exclusive example, you can get some home addresses this way with a just name search if the person has been through the court system in a civil or criminal matter. On the web-based MNCIS, you cannot get pre-conviction records (“innocent until proven otherwise”). But at the courthouse you can get the  pre-conviction records for criminal, traffic and petty misdemeanor cases. Likewise, the Violence Against Women Act, a federal law, prevents MNCIS on the internet from displaying information on harassment and domestic abuse cases, but these records can be obtained at the courthouse.  

Garbage In Means Garbage Out

There are errors, people have the same names, records are not always reliably entered or available and the search engine in MNCIS makes you appreciate Google on a whole new level. The current civil court case records are pretty reliable and accurate but be careful of how much you relay on any single source of public data always confirm the information through another source. Or three if possible.


Litigation of Business | Business of Litigation, Technically Lawful

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Litigation of Business | Business of Litigation, Publicly Recorded


United_States_Bankruptcy_Court_SealInformation Available

Bankruptcy court filings probably contain more financial information on a debtor than any other source.  Of course, they are only available if a debtor has previously filed for bankruptcy protection with one of the U.S. District Courts. Depending on the type of bankruptcy filed, the debtor may still keep possession of the assets after her/his case is closed and is no longer subject to any legal restrictions on collection activity.

Commonly disclosed information on bankruptcy filings includes the following nonexclusive items:  last four digits of the SSN, addresses, real estate locations and values, bank account location and information, motor vehicle information, general value of assets owned, specific information about other debts (secured or unsecured), personal property and its claimed value, etc. In a Chapter 11 or 13 (sometimes Chapter 7 too), such as, the debtor may have gone through the bankruptcy process and kept the some of the assets through a restructured payment plan, by reaffirming the debt or through other means. In large quality/quantity asset cases it can be well worth your time to further investigate and find out if the debtor still owns any of the listed assets.

Access to Information

A Creditor can gain access the records for Minnesota bankruptcies via the bankruptcy court’s web site at Minnesota’s bankruptcy courts were one of the first in the nation to offer online access to its records.  You can now gain access to nationwide records through Public Access to Court’s Electronic Records-PACER- see and a fee per page is charged for access. The website provides free tutorials to help get you started on your bankruptcy filing research: Click here to start…

With or without the video tutorials, it is a fairly easy site to navigate, you will only need Adobe Acrobat Reader (available for free download with a link from the Court’s website).  You may search by case number, social security number or the debtor’s name. Subject to per page fees. Everyone should check it out and see what they can find about a corporate or individual debtor who has previously filed for bankruptcy protection (or neighbor or friend (current/former or even a family member).

Happy Researching!

Free PACER Training

25 Years Later, PACER, Electronic Filing Continue to Change Courts

New Fee Schedule (04/01/2013)


Publicly Recorded



truckInformation Available

Drivers License information, full name, past and last known addresses, physical description, date of birth, etc.  Motor Vehicle registration information provides year, make, model, liens on vehicles, number of vehicles owned.  Obviously, all of this information can be extremely valuable for levying on a debtor’s property.  However, some savvy debtors will not keep that information current or will place assets in other people’s names.   Nonetheless, it may be quite valuable in locating a debtor or debtors’ assets. 

Access to Information

Motor vehicle and drivers license records are maintained and may be accessed (subject to the following restrictions) from the Minnesota Department of Public Safety’s Driver and Vehicle Services Division:


Driver and Vehicle Services
445 Minnesota Street
St. Paul, MN 55101

651-296-6911 (8:00 a.m. – 4:30 p.m.)

Restrictions on Access

·       Record Request and Explanation of Intended Use form.

Record requests may be made by applying in person at the Driver and Vehicle Services office in Saint Paul (address above), or by mail. Access to computer records is also provided by remote, private computer connections (i.e., not on the Internet) for businesses that have authorized access. Upon receipt of a Record Request and Explanation of Intended Use form (see‎) the division will determine if the applicant is authorized to receive the requested information.

·       Applicable Law

Permitted uses pursuant to the governing privacy laws that are directly applicable to motor vehicle and drivers license information are contained in THE DRIVERS PRIVACY PROTECTION ACT (18 U.S.C.S. 2721) (“DPPA”) and Minnesota Statutes, Sections 168.346, 171.12 subd 7 , and 171.12 subd. 7a.  Fortunately for debt collectors, there are two exceptions to the privacy laws which apply.  They may be summarized briefly as follows:

You may access and use the information in connection with any proceeding (including arbitration) in any court or government agency, or before any self-regulatory body, including investigation in anticipation of litigation. Must furnish court information or specifics related to potential litigation.


You may access and use the information to verify the accuracy of information about a person who provided the information to you (or to your client) but only if the information is used to recover on a debt against the person or to pursue legal remedies against the person for fraud.

Both exceptions are valid under the Minnesota statute and the DPPA. Both exceptions may be successfully argued to access the information by debt collectors, creditors’ counsel or an individual/corporate entity collecting a debt on its own behalf. However, awareness of abuse of the privilege to access this information has, rightfully, led to tighter controls and more watchful monitoring of the uses of the data. Let’s keep it for all, use it only when legit!

KSTP reporter Kolls claims driver’s license info snooped, files lawsuit


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Anne Marie Rasmusson’s settlement haul now over $1 million