News

Tennessee Adopts Uniform Bar Exam

The Tennessee Supreme Court today amended Rule 7 and adopted the Uniform Bar Exam (UBE) as the key testing component for bar admission for aspiring Tennessee attorneys. The UBE is a nationwide test that has been adopted in 31 jurisdictions and allows test takers to transfer scores between states, greatly improving the mobility of Tennessee attorneys. The change comes after the Tennessee Board of Law Examiners filed a petition with the Supreme Court to adopt the change. Comments received by the Court were overwhelmingly supportive. The UBE will be given for the first time in Tennessee in February 2019.

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Company to Build Home in Chattanooga Using Robotic Technology

A new architectural startup called Branch Technology will use 3D-printing robots to build its first home this year in Chattanooga, The South China Morning Post reports. Branch's machines will print the walls, roof and floor of the 1,0000-square-foot model over the span of a few months, and then a construction crew will assemble the components on-site.
 
Branch says that the construction process will produce less waste than traditional homebuilding because the machines will print only the necessary parts and that the method will make homes that are three to four times stronger than typical wood construction. The company estimates that the prototype will cost $300 to $400 per square foot to build but plans to get that price down before it starts selling homes.
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Real Estate Essentials: The Ins and Outs of Titles

Learn how to avoid pitfalls, as we look at all the players in a real estate transaction and review the ins and outs of real estate titles and contracts at the Real Estate Essentials CLE on May 11 at the Tennessee Bar Center. Key players include heirs, upstream and downstream water users, taxing authorities, easement holders and due diligence parties. Learn about the common terms to be used in contracts to cover payment, closing costs, inspections, defaults, remedies and counteroffers.
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Topgolf CLE: Estate Planning Tee-off

The TBA Estate Planning & Probate Section will host the Topgolf CLE: Estate Planning Tee-off on June 26. The program will feature 2.5 hours of CLE programming, focused on information relevant to new attorneys interested in Estate Planning and lawyers who desire to add this area to their practice.
 
The CLE package includes breakfast, lunch, plus two hours of Topgolf after the presentations. Don’t miss this unique opportunity to build your practice knowledge and fine-tune your drive game, all in one day! 
 
When: Tuesday, June 26, 9 a.m., CDT
 
Where: Topgolf Nashville, 500 Cowan Street, Nashville, TN, 37207
 
 
 
 
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D.C. Lawmakers Move to Undo Estate-tax Break

The recent overhaul of the federal tax code that doubled the exemption from the estate tax, erasing the tax liability for individuals with estates worth less than roughly $11 million is being challenged by Democratic on the Washington, D.C., council, The Washington Post reports. Their proposal, supported by a majority of D.C. council members, would cut in half the estate-tax exemption in the nation’s capital, to $5.6 million. 
 
The District had loosened its estate-tax exemption as part of wide-ranging tax cuts enacted in 2014. The cuts, funded by excess revenue, were intended to make the District more economically competitive with Maryland and Virginia. Under the new proposal, about $2.5 million of the resulting revenue would go to housing for victims of domestic violence, $1.5 million would be spent on housing vouchers and $1.25 million on education. An additional $500,000 would go to a program that helps poor families buy produce at farmers markets.
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Senate Advances Bill Overturning Some Short-Term Rental Rules

The Senate today passed a bill that would overturn a Nashville ordinance set to gradually eliminate certain types of short-term rentals, as well as similar prohibitions in other cities, the Tennessean reports. Called a strong win for the booming short-term rental industry, the measure will now go back to the House for final approval.

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Lawsuit Involving Construction of Oak Ridge Uranium Processing Facility Moved to Knoxville

A federal lawsuit that asks for an environmental review of the new multi-building design for the Uranium Processing Facility (UPF) at the Y-12 National Security Complex has been transferred from Washington, D.C., to Knoxville, reports Oak Ridge Today. The transfer was requested in September by the defendants, U.S. Energy Secretary James Richard “Rick” Perry and Frank G. Klotz, former administrator of the National Nuclear Security Administration, an agency within the U.S. Department of Energy that manages nuclear weapons programs and facilities. United States District Judge Dabney L. Friedrich, who was assigned the case in December, granted the motion to transfer the lawsuit from the District of Columbia to U.S. District Court for the Eastern District of Tennessee on March 23.
 
The complaint argues that a new environmental impact statement should be prepared for the new design for the UPF, the largest federal construction project in Tennessee since World War II. The plaintiffs allege that the use of several old buildings at Y-12 to house nuclear weapons work is risky because the old buildings could collapse during a major earthquake, possibly leading to a nuclear accident that could cause the release of radiological materials. Federal officials denied that allegation and others in a 29-page answer filed Sept. 29, 2017, calling the allegations vague, ambiguous or speculative, adding that safety and technical analyses are underway at Y-12.
 
The plaintiffs previously listed the reasons for filing their complaint in the District of Columbia, citing the fact that multi-building UPF was made by a federal agency in the Washington, D.C., area; the named defendants are (or were) located there; and the information that the NNSA allegedly failed to consider originated in other federal agencies in the nation’s capital. The plaintiffs also said the important issues raised in the litigation — issues regarding the safety of the nation’s nuclear weapons program are “issues of overriding national significance and interest,” which favored keeping the case in Washington, D.C.
 
The defendants, however, asked to move the lawsuit to East Tennessee stating, “This question should be decided in the Eastern District of Tennessee, where the Y-12 Complex is located,” a September 28 memorandum supporting its motion to transfer. “The matters at issue, in this case, are local at every turn,” the government attorneys said.
 
Granting the motion to transfer, Friedrich said private and public interest factors both weigh in favor of moving the case to East Tennessee.“There is a substantial local interest in having this action decided in Tennessee,” she said. “The potential health and environmental effects in the locality of the Y-12 Complex and its surrounding areas present unique hazards that gravely impact residents in the Eastern District of Tennessee."
 
The Y-12 complex was built to enrich uranium for atomic weapons as part of the top-secret Manhattan Project during World War II, and it remains the nation’s primary site for processing and storing highly enriched uranium used in nuclear weapons.
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10 Essential Documents for Your Practice

Instructions and rules for client file retention, list of current curse and copy of bank’s form for IOLTA access are three of the top 10 documents attorneys need for succession planning and practice management. Learn more in this 3-hour dual credit workshop with attorney Timothy Takacs.

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Senate Committee Votes to Overturn Local Short-term Rental Laws

A Senate committee voted to advance controversial Republican-backed legislation that would overturn a Nashville ordinance set to gradually eliminate certain types of short-term rentals, led by companies such as Airbnb, as well as similar prohibitions in other cities, including Knoxville, reports The Tennessean. The Senate Commerce and Labor Committee voted 7-2 to approve a now-revamped ‘Short Term Rental Unit Act’ introduced by Sen. John Stevens, R-Huntingdon, and Rep. Cameron Sexton, R-Crossville. If passed, the bill will block a Nashville ordinance passed in January to phase out most non-owner-occupied short-term rentals that currently exist in residential neighborhoods over the next three years, as well as a similar prohibition that passed last year in Knoxville. However, the bill allows local municipalities to still prohibit certain types of short-term rentals and require grandfathered short-term rentals to acquire permits. In addition, a local government could revoke a permit for a grandfathered unit if it violates standards on three separate occasions.
 
"Obviously, I'm pleased with the outcome," Stevens said after the bill passed in the committee. "I think it is a very difficult issue, but it's our property and it's a very personal issue. It's a distinction between the property rights and government, even if it is local government." Sen. Steve Dickerson, R-Nashville, who is not a member of the committee, spoke against the measure saying, "If there is a permit that is issued by a local government, there is a mechanism that they might revoke that permit.”
 
"It is my impression that (the amendment) is somewhat too restrictive," Dickerson said. "The bill makes it almost impossible to do that."
 
The Nashville Area Short-Term Rental Association urged approval of the bill in a letter to lawmakers. “We are regular folks working to make a living and want to contribute to our local and state economy,” the short-term rental association’s letter reads. “Please protect the property rights of all. Please vote to pass SB1086 with amendments.” Detractors contend that short-term renting has displaced longtime residents by attracting investors who don’t live in the homes they rent out. 
 
Twenty-seven cities in Tennessee have rules that don't allow non-owner-occupied short-term rentals in residential areas, including Knoxville, Brentwood, Germantown and Smyrna. Local officials say they are just following zoning laws that restrict businesses in residential areas. Some cities have gone further by outlawing all short-term rentals, including owner-occupied types. These include Davidson County's five satellite cities — Belle Meade, Berry Hill, Forest Hills, Goodlettsville and Oak Hill. You can track the legislation using this link.
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Succession Planning for Your Law Firm or Practice

Attorney Timothy Takacs will present a special CLE on succession planning for your law firm or law practice on March 27 in Nashville. Additional topics will include law practice management, best practices, client communication and life planning. Attendees will learn how to develop their own plan using a planning toolkit for lawyers.
 
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Powers of Attorney 2.0 Online CLE

In this online video, attorney Barbara Moss will talk about financial powers of attorney. She will also discuss the durable power of attorney act, appointment of conservator, effects of death, disability or incapacity, and gifting.

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Judge Rules That Homeless Man's Truck is His Home

A Seattle man won a recent legal dispute that could have implications on how municipalities across the country address the issue of homelessness, reports The Seattle Times. In 2016 Stephen Young returned from work to find his GMC pickup truck, that he had been living in since becoming homeless in 2014, had been towed because of an ordinance that requires vehicles to be moved every 72 hours. Officers responding to an unrelated call in the area found Young in his truck, which was inoperable and called a city parking enforcement officer who tagged it for impound. At the impound hearing, Long said the truck was his residence and the city waived the $44 ticket and reduced the towing and impound fees from more than $900 to $557.

With the help of Columbia Legal Services in Seattle, Long sued the city on the basis that he had no home for a time; he lost income because work tools he used for day labor jobs were in the truck, and he struggled to pay the fines because he makes between $300 and $600 a month. He lost the initial suit in Seattle Municipal Court, however, won the case on appeal in King County Superior Court last Friday, where Judge Catherine Shaffer ruled that the city’s impoundment of Long’s truck violated the state’s homestead act because he was using it as a home. Shaffer also ruled the fees the city required Long to pay to retrieve the truck were too high, violating constitutional protections against excessive fines and called Long “a poster child … for a lot of other people who are in this situation.”

“We believe this case has a lot of implications for other people using their vehicles as homes,” said Ali Bilow, one of Long’s attorneys with Columbia Legal Services. “I think Seattle municipal judges should follow this ruling and take a hard look when homeless individuals, who are living in their vehicles, are charged these really excessive fees.”

Assistant City Attorney Michael Ryan argued that police and parking-enforcement officers could now find themselves in a bind if they can’t definitively determine whether a vehicle is simply abandoned or is someone’s home. “Someone could park right here in front of the courthouse on Fifth Avenue, and we couldn’t tow them, or if we did tow them, we couldn’t put them in impound. We’d have to put them somewhere else and we couldn’t charge them at all for it because if we did, we’d violate the constitution if they were living in that vehicle,” said Ryan. The city attorney’s office is currently weighing whether to appeal the case.

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Tennessee Infrastructure Needs $45 Billion for Next 5 Years

Tennessee's annual estimate of costs for needed roads, schools, parks and other infrastructure is now $45 billion in the five years between 2016 and 2021 reports the Chattanooga Times Free Press. This is an increase of about $2 billion, or 4.7 percent, from last year, according to the Tennessee Advisory Commission on Intergovernmental Relations, or TACIR, a research institution that explores solutions for state and local governments.
 
In its latest report issued Monday, TACIR hopes that the infrastructure inventory could help local communities to woo federal dollars under President Donald Trump's pending infrastructure plan. The report includes a statewide overview chapter with information by type of infrastructure, the condition and needs of our public-school facilities, the availability of funding to meet reported needs and a comparison of county-area need, including one-page summaries for each Tennessee county.
 
Costs for current infrastructure needs fall into six general categories:
  • Transportation and utilities: $24.8 billion
  • Education: $10.4 billion
  • Health, safety, and welfare: $6.9 billion
  • Recreation and culture: $1.8 billion
  • General government: $767 million
  • Economic development: $360 million
Preliminary discussions of Trump's infrastructure plan indicate states could receive rural infrastructure funds if they have plans for investing the money. The TACIR news release said the report "could provide a foundation for meeting this or similar requirements." The report in its entirety can be found here.
 
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Federal Judge Awards Street Artists $6.7 Million in Milestone Case Against Landlord

On Monday, a federal judge in Brooklyn awarded $6.7 million in damages to 21 artists whose work at 5Pointz — a former factory turned space for artists' studios in Queens, NY — was destroyed according to The Washington Post. This comes after a three-week trial in November 2017 in U.S. District Court in Brooklyn. The case marked the first time a court has been asked to determine whether graffiti, with its transitory nature, should be considered art protected under the Visual Artists Rights Act (VARA), weighing a property owner's rights against the rights of visual artists. 
 
Senior United States District Judge Frederic Block awarded the artists the maximum damages possible, saying the building's owner, Gerald Wolkoff, "willfully" ruined the artwork and showed no remorse for his "recalcitrant behavior." "He was bent on doing it his way, and just as he ignored the artists' rights he also ignored the many efforts the Court painstakingly made to try to have him responsively answer the questions posed to him," Block wrote in his opinion. "Wolkoff has been singularly unrepentant."
 
As a final resort one tenant, Johnathan Cohen, tried to prevent the imminent demolition by seeking a preliminary injunction against Wolkoff under VARA. The court denied the plaintiffs' application for a preliminary injunction but said an opinion would come within eight days. "Rather than wait for the Court's opinion," Block wrote, "Wolkoff destroyed almost all of the plaintiffs' paintings by whitewashing them during that eight-day interim."
 
The landlord and his lawyer have contended that the artists knew for years that the buildings would ultimately be demolished but Block said Wolkoff should have put off demolishing the properties for at least 10 months when he had all his permits. The judge said Wolkoff's "precipitous conduct was an act of pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art."
 
The case is also the first time that a jury decided a VARA claim in court.
 
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The Protest Movement as a Tool for Social Change: Fifty Years Post-King

The Ben F. Jones Chapter of the National Bar Association presents a dynamic day of programming in recognition of 50th anniversary of the death of Dr. Martin Luther King in Memphis. This program explores the protest that brought Dr. King to Memphis in 1968 and the legacy that his untimely death has left on the fabric of the city. The event will focus on the protest movement in its current state as well as provide updated information on the law surrounding assembly, protest and municipal responsibility.
 
The program features local historical figures who worked with Dr. King, representatives of the media, City of Memphis, local activists, attorneys and judges.
 
Speakers and producers include:
  • Barbara Arnwine, Esq., CEO and Founder of the Transformative Justice Coalition, Washington, D.C. 
  • Judge Earnestine Hunt Dorse, Municipal Court Judge, Memphis
  • Bill Cody, Burch, Porter and Johnson, Memphis
  • Earle Schwartz, Memphis Bar Association President, Memphis
  • Judge Bernice Bouie Donald, United States Circuit Judge of the United States Court of Appeals for the Sixth Circuit, Memphis
When: Feb. 23, 9 a.m. CST
 
Where: Fogleman Business Center, First Floor Amphitheater, 330 Innovation Dr., Memphis, Tennessee 38152
 
Contact Florence Johnson by email or call her at 901-725-7520 for more information.
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TBA Gears Up for 2018 Mock Trial Tournament

The Tennessee Bar Association will host the upcoming Tennessee High School Mock Trial Tournament on March 23 and 24 in Nashville. The Mock Trial is a two-day, single-elimination bracket-style competition where 16 high schools face-off against each other in the Davidson County Courthouse. Each team is scored on their trial preparation and skills. 

We need TBA volunteers to help be bailiffs and jurors (scorers) for the event. After signing up, we will send you a Volunteer Memo with all the information you need for competition including; parking, hotel, downtown map, courthouse rules, and reimbursement information. Come be a part of the Young Lawyers Divisions’ March Madness! Feel free to contact YLD Director Stephanie Vonnahme with any questions.

To volunteer for this event, click here.

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Construction Industry Faces Shortage of Workers Amid Unprecedented Growth

A recent WSMV story highlights concerns of builders in middle Tennessee regarding a shortage of construction workers. The area has seen unprecedented growth, with an estimated 75 people a day moving into the Nashville area alone.
 
"What used to take us about 120 days on average to build a house is now taking us 180 days plus," said Dave McGowan, the owner of Regent Homes, a locally owned home building company in Nashville. "There's a shortage of bricklayers. There's a shortage of different tradesmen from everything, from people who do our carpet work and do our floor work. All the people that really requires skill, there's a true shortage of those people," he continued.
 
This comes at a time when several planned, large-scale construction projects including repaving Interstate 440 and Nashville's proposed metro transit upgrade, will only further exacerbate the problem. Nashville is also on the short list of cities for Amazon's second headquarters, Amazon HQ2, an 8.1-million square foot campus that will create an estimated 50,000 new jobs for the area and a huge need for skilled construction laborers.
 
One way to build the workforce is through high school recruitment. Go Build Tennessee, a nonprofit comprehensive workforce development initiative that seeks to address the problem by getting teens interested in joining the construction workforce, routinely visits area schools to inform young people, parents, educators and influencers about shortages and opportunities in the various construction related trades.
 
"If they are able to go to trade schools and learn that skill set, they would be able to have a job," McGowan said. With only one person replacing every five leaving the construction field, Tennessee will certainly be tasked with finding new and novel ways to address these challenges.
 
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Don't Forget: Winter CLE Blast Tomorrow!

Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 

Highlights

  • Flexible to your schedule
  • Up to 11 Hours of CLE
  • Ethics Credits
  • Compliance CLE
  • Live Credit Hours

When: Feb. 21, registration begins at 7 a.m., CST

Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219

 

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Investor Sues Over Stalled Nashville Property Sale

A New York investor is suing to force the sale of the Gibson Guitar Valley Arts building, a prominent Nashville property that has been vacant for months, the Nashville Post reports. Last week Starguitar LLC became the second investor to file a motion in Davidson County Chancery Court asking to intervene in the legal dispute between Gibson and Somera Road, the investment firm that agreed to purchase the property for $11 million in December. The court will consider the request on Feb. 9.
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Tennessee Department of Revenue Reaches Agreement with Airbnb

Airbnb recently struck a deal with the Tennessee Department of Revenue to collect and remit state and local taxes on behalf of its 7,700 hosts, according to the Nashville Business Journal. This arrangement has been used in other markets to address concerns regarding tax revenue from their short-term rentals not being on par with that of their hotel competitors. Tennessee joins neighboring states of Kentucky, Missouri, Alabama, Mississippi and Arkansas as areas with similar agreements. 
 
This news comes as Metro Council was scheduled to vote on BL-937, an ordinance amending Title 6 and sections 17.04.060, 17.08.030, 17.16.250 and 17.16.070 of the Metropolitan Code of Laws to add a new Chapter 6.83 pertaining to a short-term rental properties advisory committee and to establish regulations regarding short-term rental properties and distinct land uses for "Short-term rental property - Owner-Occupied" and "Short-term rental property - Not Owner-Occupied." The vote, however, was commuted to Jan. 23 because of inclement weather.
 
The company has long been a source of controversy in the area because of various concerns of taxation, noise complaints, even sparking First Amendment debates regarding anatomically correct sex dolls. In fact, problems with Airbnb rentals have become so numerous, Nashville Mayor Megan Barry established a devoted hotline tasked with aggregating and addressing these concerns.
 
The new statewide tax agreement, which will take effect March 1, is the second such deal Airbnb has struck in Tennessee, following an earlier agreement with Memphis. Airbnb has touted the agreements as a revenue generator and a reason for governments to work with — not against — the company.
 
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New AirBnB Regulations Advance on Second Reading in Nashville

Nashville could soon see tougher rules governing AirBnB rentals, thanks to a bill that passed second reading last night at the Metro Council meeting, The Tennessean reports. The bill strengthens caps on non-owner-occupied rentals allowed in suburban parts of Davidson County and creates a new “anti-clustering” rule to prevent concentration. The third and final reading will take place on Jan. 16, when the council will also consider whether to ban non-owner occupied short-term rentals in residential areas outright.
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Supreme Court Affirms Conviction in Theft of House Case

In State of Tennessee v. Tabitha Gentry (AKA Abka Re Bay), the Tennessee Supreme Court ruled the state’s theft statute applies to real property. In the case, the defendant challenged whether Tennessee Code Annotated section 39-14-103 encompassed theft of a house. The Supreme Court affirmed the defendant’s convictions of Class A felony theft and aggravated burglary. Justice Cornelia A. Clark authored the opinion.

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Hot Topics in Real Estate Coming Next Week

If you do real estate law, you don't want to miss the annual Hot Topics in Real Estate program jointly produced by the Tennessee Bar Association and the Tennessee Land Title Association. This year's program will be Nov. 10 at the AT&T Building in downtown Nashville, starting at 8:30 a.m. and offering 6.25 CLE hours credit. Here's what the agenda looks like.

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The Consumer Financial Protection Bureau Targeting Affiliated Businesses

The Consumer Financial Protection Bureau (CFPB) recently took action against Meridian Title Corporation (Meridian) for violation of a long-standing provision of the Real Estate Settlement Procedure Act (RESPA). CFPB has been delegated with the enforcement of RESPA.  
 
According to the release, Meridian is a real estate settlement agent and a title insurance agency located in South Bend, Indiana, which was found to have steered “consumers to a title insurer owned in part by several of [Meridian’s] executives without making disclosures about the business affiliation.” 
 
When directed to its affiliated provider, the settlement agent/title agent “was able to keep extra money beyond the commission it would normally have been entitled to collect based on an understanding with the affiliated provider, to add to its bottom line,” according to Director Richard Cordray.
 
Receiving “anything of value” pursuant to a referral agreement has long been a violation of RESPA, but if the referring entity meets the definition of an “affiliated business,” then the referring entity must “generally disclose its relationship to the consumer.” Theoretically, this permits the consumer to exercise independent judgment regarding whether to use that provider. The penalty for Meridian’s failure to disclosure resulted in an order that required the regional company to pay $1.25 million to 7,000 “harmed consumers” and an order to desist from such conduct in the future.
 
Unfortunately, many affiliated providers of services for title agencies and lenders have become lax and brush off this continuing obligatory disclosure to the consumer.
 
This action is noteworthy because the CFPB has identified and taken action against a relatively minor player in the title industry. This should reinforce the importance of compliance by every title agency and lender. Lenders who enjoy affiliated business arrangements with title insurance providers are apt to trivialize this RESPA requirement when dealing with the consumer, especially when the lender views the provider as a business partner through its relationship as a member in the provider’s limited liability company.
 
As with many consumer protection regulations, the consumer often fails to appreciate the value of choosing services through a provider that does not share in the financial interest of the lender. This is especially true when an owners title policy is issued simultaneously with a loan policy. The interest of the consumer and lender are not necessarily the same.
 
Paul "Kelley" Hinsley is an eastern delegate and past chair of the executive council for the Tennessee Bar Association's Real Estate Section. Hinsley holds degrees from the University of Tennessee at Knoxville and the University of Tennessee College of Law.

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Global & Tennessee Specific Trade & Investment Perspectives & Policies for 2018 & Beyond

 
The International Law Section of the Tennessee Bar Association is sponsoring a free seminar “Global & Tennessee Specific Trade & Investment Perspectives & Policies for 2018 & Beyond” to be held on Thursday, Nov. 2 from 6:00 p.m. – 7:30 p.m. at Nashville School of Law, Appellate Courtroom, 4013 Armory Oaks Drive, Nashville, Tenn. 
 
The speakers on the panel include:
  • Terry Olsen, Chair of the TBA International Law Section, as Moderator
  • Clay Banks, Regional Director of Tennessee Department of Economic & Community Development
  • James Forde, Prosperity and Economics Officer of British Consulate General, Atlanta
  • Ms. Joanne Chu, Director of Hong Kong Economic and Trade Office (New York)
  • Mr. Michael Kwan, Deputy Director of Hong Kong Economic and Trade Office (New York)
The seminar will provide an overview of the global & U.S. trade & investment landscape as it concerns Tennessee for 2018 & beyond, and both policy & legal views of the ever-changing global standard of Tennessee in the international investment environment.
 
Attendees will also have the opportunity to have direct interactive discussions with the speakers at the end of the seminar.
 
The panel discussion will last from 6pm thru 7pm, and then followed with a FAQ session for attendees, along with a light reception of beverage & desserts. 
 
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