Latest / Ask the Lawyer / 08/27/2026 Ask the Lawyer with Harvey Peyton

Transcript

08/27/2026 Ask the Lawyer with Harvey Peyton · Ask the Lawyer

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  Speaker 1: The views and opinions expressed on this program do not
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  Speaker 1: necessarily reflect the views and opinions of 580 WCHS, its employees,
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  Speaker 1: or WVRC Media.
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  Speaker 2: In our courts, all men are created equal.
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  Speaker 1: We must communicate!
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  Speaker 3: Breaking rocks in a hot sun Up on the lawn
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  Speaker 3: When you see.
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  Speaker 4: This in your kitchen.
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  Speaker 3: And a very pleasant good morning to you. You are
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  Speaker 3: listening to Ask the Expert, the lawyer edition on 580 WCHS,
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  Speaker 3: the voice of Charleston. It is Ask the Lawyer. Harvey
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  Speaker 3: Payton from the Payton Law Firm is here in studio
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  Speaker 3: with us this morning. Harvey, good morning. How are you
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  Speaker 3: doing this morning?
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  Speaker 5: I'm doing quite well, Mr. Cooper. It's another gorgeous morning
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  Speaker 5: God gave us here to drive in with very little
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  Speaker 5: traffic on I-64. You know, last Thursday, Tom was on
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  Speaker 5: the show, and that afternoon I winded my way up
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  Speaker 5: to Morgantown, up to the mothership, to watch football practice
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  Speaker 5: first on Thursday afternoon. If it's all right, maybe later
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  Speaker 5: in the show, before you go off the air, I'm
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  Speaker 5: not sure I'll be here next week. I want to
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  Speaker 5: talk about my predictions for the upcoming season. Oh, yes,
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  Speaker 5: that time. I did have one of those, how old
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  Speaker 5: are you really moments in Morgantown. I thought, well... I
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  Speaker 5: stopped by the new headquarters downtown in Morgantown on Spruce
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  Speaker 5: Street to look over the new studios. They're not new.
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  Speaker 5: They've been there, what, three or four years, but it
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  Speaker 5: really is a great setup. It's where talk line and
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  Speaker 5: sports line and three guys before the game and other
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  Speaker 5: things are filmed. It's quite impressive. I met with the,
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  Speaker 5: I guess he's the CEO, George Pelletier, saw the plaques
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  Speaker 5: that apparently I think came from sports writers hall of
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  Speaker 5: fame somewhere that are displayed at the headquarters. But that
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  Speaker 5: morning I just took a drive around Morgantown. I was
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  Speaker 5: looking for, well, first of all, the place where I
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  Speaker 5: lived up on falling run road. Well, it's gone. You know,
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  Speaker 5: there's a massive apartment complex there. And I thought, well,
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  Speaker 5: you know, in the summer of 72, uh, I couldn't
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  Speaker 5: find any work and I couldn't come home. So I thought,
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  Speaker 5: got to make a little money to go back to school,
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  Speaker 5: so I put an ad in the paper that I
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  Speaker 5: would do yard work. Well, I got a call almost
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  Speaker 5: immediately from a wonderful gentleman, Dr. McBride. He was the
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  Speaker 5: retired head of the French department, and his wife had
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  Speaker 5: come from France and was actually a very good friend
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  Speaker 5: of Agnes Greer. Agnes Greer was a quite refined person
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  Speaker 5: and spoke French, but she wanted somebody to converse with
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  Speaker 5: at home, and so Mrs. McBride would go out to
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  Speaker 5: what Dr. McBride referred to as the chateau, on the lake. Well,
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  Speaker 5: his wife passed away, and he had built her a
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  Speaker 5: house in Morgantown that mimicked a little stone French cottage
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  Speaker 5: with a garden out back, and he wanted to keep
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  Speaker 5: it pristine, and so I, you know, after one call
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  Speaker 5: to him, I was for him, and now Leonie, and
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  Speaker 5: down the street, another lady out in Suncrest. I had
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  Speaker 5: work every day, all summer, and even into the law
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  Speaker 5: school fall, but I thought, I'd like to go see Dr.
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  Speaker 5: McBride's house. Well, I'm driving around up at the top
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  Speaker 5: of Spruce Street. Everything's changed and there are apartments everywhere.
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  Speaker 5: The names on the fraternity house changed. So I'm pulling
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  Speaker 5: over and parking in a parking lot or a parking
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  Speaker 5: area at an apartment complex at the top of Price
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  Speaker 5: Street and trying to find it on my telephone, you know,
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  Speaker 5: on maps. And I get a call from from one
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  Speaker 5: of the folks at the athletic department and really nice guys.
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  Speaker 5: I mean, Jake Brady works for a mountaineer athletic club
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  Speaker 5: and he needed to talk to me about something. And
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  Speaker 5: so he's, I mean, how are you doing this? Well, Jake,
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  Speaker 5: I'm having an on golden pond a moment right here.
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  Speaker 5: Dead silent. I said, you know, Jake, like the movie,
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  Speaker 5: I haven't seen that movie. It's well, you know, like
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  Speaker 5: Henry Fonda, Jane Fonda, Catherine Hepburn, and it's obvious from
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  Speaker 5: the just, none of those three names ring a bell.
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  Speaker 5: Who are these names of which you're speaking, Harvey? Well, okay, Jason,
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  Speaker 5: you could probably stream it somewhere. Look it up. It
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  Speaker 5: didn't win a Best Picture because I remember that year
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  Speaker 5: it was in the, it was the two best movies
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  Speaker 5: I thought were Raiders of the Lost Ark and on
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  Speaker 5: Golden Pond. And I don't remember what movie won, but
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  Speaker 5: it wasn't either of my favorites. So it's just like, okay,
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  Speaker 5: now I realize that that movie was released like, 47
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  Speaker 5: years ago. It was a while back, yeah. 15 years
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  Speaker 5: before this young man was born, and he's never had
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  Speaker 5: a look at it. But I did find the place.
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  Speaker 5: Took some pictures so I could have it on my phone.
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  Speaker 5: Going to Morgantown and seeing the hubbub around the university
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  Speaker 5: just changes your perspective. It changes. I have not yet.
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  Speaker 5: I went to a function at the museum that Friday evening.
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  Speaker 5: They have a beautiful show of– the artworks of Blanche Lizelle,
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  Speaker 5: who was a Morgantown native that became somewhat of an
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  Speaker 5: international art sensation in the 30s, 40s, and early 50s
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  Speaker 5: with her work. It's just incredible how things have changed,
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  Speaker 5: and I think all for the better. It is crowded.
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  Speaker 5: The traffic has not gotten any better than it was
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  Speaker 5: before the roads were built and changed. The university looks
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  Speaker 5: sort of the same. I mean, I can recognize Oglebay
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  Speaker 5: Plaza and the modified, for I can remember seeing the
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  Speaker 5: state police march up University Avenue into Oglebay Plaza and
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  Speaker 5: unreleasing tear gas in the May 1970 protests over Kent State.
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  Speaker 5: But it always invigorates me because even though I have moments,
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  Speaker 5: it makes me feel younger. I'm sure just like folks
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  Speaker 5: who go back to Huntington, you know, like all three
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  Speaker 5: of my kids. Sure. graduated from Marshall and their spouses. And,
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  Speaker 5: you know, to go back and see the changes and
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  Speaker 5: to see people and like, sort of feel like, again,
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  Speaker 5: you're a part of that community and that atmosphere. It's
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  Speaker 5: a good thing. Then we come home and, you know,
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  Speaker 5: I remember I'm standing upstairs Tuesday and my wife shouts
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  Speaker 5: up from downstairs. Oh my goodness. What's wrong? Dolly Parton died. Yeah. Well,
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  Speaker 5: So immediately after I saw the proclamation, and I think
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  Speaker 5: President Trump did a nice job. He didn't say anything self-effacing.
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  Speaker 5: He talked about Dolly Parton. He directed flags be flown
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  Speaker 5: at half-staff, and that's what presidents should do in times of...
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  Speaker 5: It's not a national tragedy. It certainly is a great
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  Speaker 5: loss of a personality. The question, well, who is the
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  Speaker 5: bigger country... beginning. Was it Elvis Presley or Dolly Parton?
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  Speaker 5: And I think that's apples and oranges. Elvis Presley obviously
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  Speaker 5: changed music. Americana music, they call it now, right? I mean,
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  Speaker 5: it's not country. It's all called Americana, and that's how
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  Speaker 5: they market it around the world. And I think you
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  Speaker 5: can see that in Dolly Parton. She remained a personality
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  Speaker 5: with sequins and rhinestones, just like Elvis did. Big appearance,
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  Speaker 5: big presence. Elvis always had the DuckTales, and she had
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  Speaker 5: the Buffons. As a person, as an influence, you know,
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  Speaker 5: it's apples. It's your preference. There are people who will
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  Speaker 5: never forget Elvis, never will, because, I mean, the Beatles,
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  Speaker 5: that's where they got their ideas, and the Stones. But,
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  Speaker 5: you know, Elvis was a different person. He was from
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  Speaker 5: Tupelo and Memphis, and he bought his friends Cadillacs, and
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  Speaker 5: Dolly Parton bought children's school books. So it's a meaningless comparison.
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  Speaker 5: It's somewhat of a loss. That's, again, another huge news story.
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  Speaker 5: When a story about a deceased entertainer is the first
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  Speaker 5: story on NBC, CBS, and ABC nightly news, something's up.
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  Speaker 5: And he had a presence here in West Virginia. I
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  Speaker 5: heard Kathy Matea's talk out here and the fellow from
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  Speaker 5: Chandler Limousines, who's a really nice guy, I guess got
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  Speaker 5: to drive her around. So then we had news yesterday
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  Speaker 5: about another strong woman from West Virginia, Mary Claire Akers,
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  Speaker 5: Judge Akers, here in Kanawha County. I think if folks
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  Speaker 5: will recall, I guess it was probably in the spring
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  Speaker 5: of 2025, maybe the late winter, early spring. She and
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  Speaker 5: another judge up north, Tim Sweeney, became exasperated with this
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  Speaker 5: business about placement of foster children. And she was involved
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  Speaker 5: in a case, and I believe it involves summoning the
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  Speaker 5: then director of DHHR, the Department of Health and Human
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  Speaker 5: Resources in West Virginia, to appear in her court and
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  Speaker 5: address the issue of what at that time were children,
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  Speaker 5: foster children, being maintained out here at the 4-H camp,
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  Speaker 5: this isolated spot, almost disconnected, or in motel rooms where
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  Speaker 5: a child had attempted suicide out of frustration and Came
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  Speaker 5: on Dave Allen's show, I think. It was the talk
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  Speaker 5: line that starts at 9 o'clock. And made some comments.
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  Speaker 5: I did not listen to the show that day. So
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  Speaker 5: all I know about Judge Aker's comments is the transcript
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  Speaker 5: that I read, which he published. by saying, I cannot
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  Speaker 5: answer any specific questions about this case, and if you
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  Speaker 5: ask me any question on that line, I'll tell you
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  Speaker 5: I can't answer it, because that would be improper, and
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  Speaker 5: then proceeded to talk about the system. Somehow, that conversation
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  Speaker 5: offended the disciplinary counsel with the Judicial Investigations Commission here
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  Speaker 5: in West Virginia, which is a state entity similar to
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  Speaker 5: the Office of Disciplinary Counsel for the State Bar. They
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  Speaker 5: have their own disciplinary counsel initiated a complaint against Judge
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  Speaker 5: Akers for violating the canons of judicial ethics relating to
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  Speaker 5: public commentary on a case, which is If you read
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  Speaker 5: what she said, my initial thought was after I saw
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  Speaker 5: the complaint had been filed, I found the transcript. It
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  Speaker 5: was posted online. I don't understand this. Why is this happening?
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  Speaker 5: This won't go anywhere. And then the JIC, the Judicial
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  Speaker 5: Investigation Commission, met. Now they have like three circuit judges.
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  Speaker 5: I think it's a magistrate, maybe a family court judge.
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  Speaker 5: and three lead members. Now, I know some of the,
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  Speaker 5: I know all the judges who are, we're not going
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  Speaker 5: to talk about names, but they voted seven to one
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  Speaker 5: to publicly, publicly admonish Judge Akers, which is, you know,
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  Speaker 5: that's more than just a slap on the hand. I mean,
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  Speaker 5: that is a public statement that you did something we
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  Speaker 5: consider wrong and don't do it again. I mean, it's,
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  Speaker 5: You look at that, I mean, in 2023, the same
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  Speaker 5: commission published an advisory opinion about public statements that judges
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  Speaker 5: shouldn't go on TV and should not, on any media,
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  Speaker 5: talk about the particulars of a case, which is what
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  Speaker 5: the judge disavowed in her interview here. I mean, it
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  Speaker 5: just seemed confusing to me. I think it seemed confusing
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  Speaker 5: to a lot of other folks. I've not seen any
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  Speaker 5: commentary on that supported that position. But I mean, these
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  Speaker 5: folks acted in good faith, obviously because they're people of
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  Speaker 5: high integrity and intelligence. They're judges. The lay people just
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  Speaker 5: aren't appointed off the street. They're folks who have the
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  Speaker 5: ability to reason and consider things. But Judge Akers could
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  Speaker 5: have accepted the admonishment and just moved on. But listen,
• 12:46
  Speaker 5: she's an Adkins before. And to her, Her dad, Garth Adkins,
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  Speaker 5: would fight over anything. He's a lawyer. I mean, pretty
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  Speaker 5: much retired now. I say, well, that's not going to happen.
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  Speaker 5: And so she said, well, I'm not going to accept
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  Speaker 5: the admonishment. And so the JIC files a formal statement
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  Speaker 5: of charges, which entitles her to appear with counsel and
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  Speaker 5: engage in discovery before what's called the Judicial Hearing Board,
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  Speaker 5: another body made up of judges and other persons. And,
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  Speaker 5: I mean, I think all along the line, the offer
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  Speaker 5: was out, look, just take the admonishment. Or maybe we
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  Speaker 5: can just withdraw it. And her answer was no. You know,
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  Speaker 5: I want my name cleared, period. I didn't do anything wrong.
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  Speaker 5: And you can't squelch the ability of judges. I know
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  Speaker 5: the one strong supporter in the social media and personal
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  Speaker 5: interaction context of Judge Akers is Margaret Workman. I'm really
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  Speaker 5: proud of Margaret Workman. She was a classmate of mine.
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  Speaker 5: She was the first woman in West Virginia, and we
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  Speaker 5: all affectionately referred to her as Peggy, to win a
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  Speaker 5: statewide office, elected to the Supreme Court of Appeals twice,
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  Speaker 5: judged in Kanawha County twice, and a tremendous advocate for
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  Speaker 5: children and families while she was on the court. And
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  Speaker 5: she really launched over this one, because what happens to
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  Speaker 5: these children is a disgrace. Well, the hearing panel said, well,
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  Speaker 5: we want this dismissed. There's insufficient evidence here to show
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  Speaker 5: that these comments violated any of these provisions, and they
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  Speaker 5: listed the specific provisions, which is not the end of it.
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  Speaker 5: I mean, they're not the final say-so. The Supreme Court
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  Speaker 5: of Appeals is the final say-so. You know, on both sides,
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  Speaker 5: if it's a lawyer disciplinary procedure, the lawyer can consent
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  Speaker 5: to whatever recommendation is made or object, and it goes
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  Speaker 5: to a hearing panel, but the Supreme Court ultimately has
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  Speaker 5: to stamp that whatever's done. The same way with judges.
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  Speaker 5: And so yesterday, the Supreme Court entered an order, three
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  Speaker 5: to two, just dismissing the matter summarily, which was a
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  Speaker 5: in favor of Judge Aker's position. Now, while there were
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  Speaker 5: two judges who didn't support the summary, all they said
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  Speaker 5: was we should just have an oral argument on this,
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  Speaker 5: which could well be because they want to ask somebody,
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  Speaker 5: how did this start? Why are we here about this?
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  Speaker 5: Two years before this happened, what's the use of advisory
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  Speaker 5: opinions to tell judges what they can and can't do?
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  Speaker 5: Then when they do what you said they could do,
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  Speaker 5: then you charge them with an offense. But I think
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  Speaker 5: it's not a big story for the public. I mean,
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  Speaker 5: a big story is when a judge sentences somebody to
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  Speaker 5: 100 years for a particular crime or when a judge
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  Speaker 5: acts in accordance with the law and dismisses what's perceived
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  Speaker 5: as a heinous crime against an individual because their rights
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  Speaker 5: have been violated. Those are stories that... make the press,
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  Speaker 5: there are allegations about what an activist judge can do.
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  Speaker 5: We had that in the last election after the two
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  Speaker 5: appointed judges, one of the Court of Appeals, one of
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  Speaker 5: the Supreme Court of Appeals lost their elections to other,
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  Speaker 5: Jim Douglas won one seat, Mike won another. Oh, we're
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  Speaker 5: going to have activist judges. Nobody knows what that means,
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  Speaker 5: but you've got to Keep in mind, judges are human beings.
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  Speaker 5: And one of the hardest things to do is sit
• 16:45
  Speaker 5: as a circuit judge. I mean, I've sat in a
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  Speaker 5: lot of courtrooms, not necessarily as counsel in a case,
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  Speaker 5: but waiting for something to be heard and listened to
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  Speaker 5: what goes on in these abuse and neglect cases and
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  Speaker 5: what goes on with foster children. I mean, when I
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  Speaker 5: was still representing those folks, Spalding, for whatever reason, liked
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  Speaker 5: to appoint me. I mean, it's to the point where
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  Speaker 5: I was buying a basketball for a kid or giving them,
• 17:20
  Speaker 5: buying them McDonald's gift certificates because they're just, I mean,
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  Speaker 5: you can imagine a child carrying their clothing around in
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  Speaker 5: a trash bag and being put in a motel. And
• 17:28
  Speaker 5: so I applaud, first of all, applaud and I'm proud
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  Speaker 5: of my friendship and 50-plus year relationship with Margaret Workman
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  Speaker 5: because she broke the ice on this matter on a
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  Speaker 5: statewide basis in her position on the Supreme Court. And
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  Speaker 5: I think everybody should be thankful to both Judge Sweeney
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  Speaker 5: up north and Judge Mary Claire Akers in Kanawha County
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  Speaker 5: for taking this matter on. Now, you can say, well,
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  Speaker 5: isn't that an issue for the legislature? It's just like
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  Speaker 5: the MEDA lawsuit we heard was settled yesterday. MEDA, which
• 18:03
  Speaker 5: is Facebook, and hopefully there are other counterparts in the
• 18:08
  Speaker 5: social media world agreed as a part of a multi-state
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  Speaker 5: lawsuit to pay billions of dollars conditionally and to make
• 18:17
  Speaker 5: changes in the way that they, uh, set their algorithms,
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  Speaker 5: the way they, uh, deal with children, children under the
• 18:26
  Speaker 5: age of 15 or 16 years, how many hours they
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  Speaker 5: can view what a document, and instead of shoving algorithm
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  Speaker 5: driven content to children, uh, Some of it, not overtly,
• 18:40
  Speaker 5: but subconsciously sexual or dealing with appearance bias. And I
• 18:49
  Speaker 5: already saw one, well, all this is is a way
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  Speaker 5: for lawyers to get rich. No, it's a way to
• 18:54
  Speaker 5: make changes through the litigation system. Just like Judge Akers
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  Speaker 5: made a change when she took this all the way
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  Speaker 5: to the Supreme Court, telling other circuit judges, you don't
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  Speaker 5: have to sit silently back. while the state irresponsibly deals
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  Speaker 5: with these children. The MEDA case, here's what my position is,
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  Speaker 5: and I think this is the, you can talk about
• 19:17
  Speaker 5: it with cigarettes, you can talk about it with opioids,
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  Speaker 5: talk about it with MEDA. Well, why do we have
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  Speaker 5: all these lawsuits? Why do we have lawyers getting rich
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  Speaker 5: and states? Well, you know why? Because somebody's going to
• 19:29
  Speaker 5: set public policy. Some items of public policy that are
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  Speaker 5: good for the American people like the restriction on cigarette
• 19:37
  Speaker 5: sales to children or public advertising, or companies that intentionally
• 19:45
  Speaker 5: push opioids in huge volumes to get people hooked, or
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  Speaker 5: social media magnates who, with the advent of their technical science,
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  Speaker 5: can influence children. I mean, we've got people killing themselves,
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  Speaker 5: killing themselves because of appearance bias. Now, Don't tell me
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  Speaker 5: that Mark Zuckerberg didn't know about that. So if Congress,
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  Speaker 5: which should be addressing these issues, they should have addressed
• 20:16
  Speaker 5: tobacco and asbestos decades ago. They should have addressed opioid
• 20:23
  Speaker 5: sales and distribution decades ago. This business with social media
• 20:30
  Speaker 5: should be under consideration right now in Congress. But ask yourself,
• 20:34
  Speaker 5: what has the Congress of the United States done about
• 20:37
  Speaker 5: any of those in this age of big money, big
• 20:41
  Speaker 5: money in political campaigns and lobbying? The answer is nothing.
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  Speaker 5: Look who's funding elections.
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  Speaker 2: Right.
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  Speaker 3: They're the ones funding elections.
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  Speaker 5: So while, yes, it's true that lawyers are aggressive and
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  Speaker 5: they're pushy and they're really smart and they're really motivated
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  Speaker 5: and at the end of the day they make some money,
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  Speaker 5: a lot of money sometimes. But what happens? Public policy
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  Speaker 5: changes for the better. Now, if you don't like that
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  Speaker 5: system– Go over here on Election Day and vote out
• 21:11
  Speaker 5: the do-less congressman and tell people, you know, we're going
• 21:16
  Speaker 5: to look at your campaign finance report. And if you're
• 21:18
  Speaker 5: taking a bunch of money from Mark Zuckerberg and his
• 21:21
  Speaker 5: ilk and kowtowing to him to the detriment of the
• 21:26
  Speaker 5: children in the United States, then we're just going to
• 21:28
  Speaker 5: vote you out, period. Now, so that's my rant for today.
• 21:32
  Speaker 5: I'm sure Judge Akers is probably tired of it. I mean,
• 21:34
  Speaker 5: I haven't seen her in a while. Last time I
• 21:36
  Speaker 5: saw her, she and her husband, JB, and their kids
• 21:38
  Speaker 5: were in the, what is it? The Tap. It's a
• 21:41
  Speaker 5: place on Old Main Plaza in St.
• 21:43
  Speaker 2: Albans.
• 21:43
  Speaker 5: I was meeting my daughter, Sarah, there, and they were
• 21:46
  Speaker 5: sitting at the table. I see them on social media.
• 21:49
  Speaker 5: The kids are all college age now, so they're going
• 21:51
  Speaker 5: to college. As you can imagine, with a father who
• 21:54
  Speaker 5: looks like he came out of Hollywood casting and a
• 21:56
  Speaker 5: mother who is, I mean, Danny Jones has this fixation
• 22:01
  Speaker 5: about her. She's drop dead gorgeous. I mean, the kids
• 22:05
  Speaker 5: look like they are cookie cutters. There's a farm where
• 22:08
  Speaker 5: they grow up. So that's, uh, I don't know what
• 22:13
  Speaker 5: else there hasn't been really any legal news.
• 22:16
  Speaker 3: Uh, Why don't we do this? Why don't we take
• 22:18
  Speaker 3: our break? We do have a text that is related
• 22:20
  Speaker 3: to CPS, so that kind of works into the conversation
• 22:24
  Speaker 3: that we had. And that gives you the opportunity to
• 22:26
  Speaker 3: get in as well. If you have any questions for
• 22:28
  Speaker 3: Harvey before we leave the airwaves today, we'll have about
• 22:30
  Speaker 3: 15 minutes when we come back. You're welcome to give
• 22:31
  Speaker 3: us a call, 304-345-5858. You can also text over your
• 22:33
  Speaker 3: questions to 304-935-5008. We have a couple texts when we
• 22:35
  Speaker 3: come back.
• 22:35
  Speaker 6: 304-935-5008.
• 22:35
  Speaker 3: Peyton Law Firm Online, it's peytonlawfirm.com P-E-Y-T-O-N, peytonlawfirm.com in Nitro,
• 22:46
  Speaker 3: West Virginia. We'll give you more information when we come back.
• 22:48
  Speaker 3: You're listening to Ask the Lawyer. I'm Dale Cooper, and
• 22:50
  Speaker 3: this is 580 WCHS, The Voice of Charleston.
• 22:52
  Speaker 7: If you've been injured, you deserve a lawyer who knows
• 22:55
  Speaker 7: West Virginia, not just one who advertises here. Tom and
• 22:59
  Speaker 7: Harvey Payton were born and raised right here. For decades,
• 23:02
  Speaker 7: they've fought for injury victims across the state, and they
• 23:05
  Speaker 7: know how to win. At the Peyton Law Firm, you
• 23:08
  Speaker 7: get strong representation and attorneys who care. Call 755-5556 or
• 23:13
  Speaker 7: visit PeytonLawFirm.com.
• 23:16
  Speaker 1: The attorneys referenced in this ad are lifelong residents and
• 23:19
  Speaker 1: are licensed to practice law in the state of West Virginia.
• 23:22
  Speaker 4: Hi, I'm Colin McArdle, a lifelong West Virginia native, and
• 23:25
  Speaker 4: I'm proud to be a part of the planning team
• 23:27
  Speaker 4: at Civil and Environmental Consultants. From mountain bike trails and
• 23:29
  Speaker 4: riverfront parks to destination tourism and community revitalization, CEC is
• 23:34
  Speaker 4: helping shape the future of West Virginia. We work with
• 23:36
  Speaker 4: communities across our state to create new opportunities and build
• 23:39
  Speaker 4: places where the next generation can live, work, play, and
• 23:42
  Speaker 4: fall in love with West Virginia. At CEC, we engineer
• 23:45
  Speaker 4: progress in the great state of West Virginia.
• 23:47
  Speaker 1: Find out what CEC can do for you. Visit CECinc.com.
• 24:07
  Speaker 3: You're listening to Ask the Lawyer, 580 WCHS, the voice
• 24:10
  Speaker 3: of Charleston.
• 24:10
  Speaker 5: I'm Dale Cooper.
• 24:11
  Speaker 3: Thanks for tuning in this morning. Harvey Payton is in
• 24:13
  Speaker 3: studio with us this morning, taking your phone calls at
• 24:15
  Speaker 3: 304-345-5858 or your text at 304-935-5008. We have a text
• 24:20
  Speaker 3: that we'll get to in just a moment. I think
• 24:21
  Speaker 3: we had a call that came while we were just
• 24:24
  Speaker 3: coming back from break. Caller, you're on the air. What's
• 24:26
  Speaker 3: your first name?
• 24:27
  Speaker 2: John.
• 24:28
  Speaker 3: Hey, John. Thanks for calling in on the show this morning.
• 24:30
  Speaker 3: You're on air with Harvey. What's your question?
• 24:33
  Speaker 2: I have a real estate question. Um, let's say I
• 24:38
  Speaker 2: sell my house to a Joe Smith.
• 24:43
  Speaker 6: And the.
• 24:45
  Speaker 2: Only thing that identifies him on the deed is his name.
• 24:50
  Speaker 2: The grantee doesn't sign the deed unless there are special conditions.
• 24:54
  Speaker 2: So let's say 20 years from now, another Joe Smith
• 24:59
  Speaker 2: shows up with a copy of the deed from the
• 25:01
  Speaker 2: courthouse and says, no, that's my house. What's to prevent
• 25:06
  Speaker 2: that from happening? Shouldn't there be some other identifier of
• 25:10
  Speaker 2: the grantee, like a social security number on the deed?
• 25:15
  Speaker 5: Well, you know, that's a really good question. However, we
• 25:21
  Speaker 5: don't even take social security numbers and store them in
• 25:24
  Speaker 5: our files at the office anymore because it's such a
• 25:27
  Speaker 5: sensitive matter. They used to be all the time on
• 25:30
  Speaker 5: estate documents. Now they're obliterated except the last four digits. Uh,
• 25:37
  Speaker 5: obviously two people by the same name, whether it's Joe
• 25:41
  Speaker 5: Smith or John Doe. I mean, I had a case
• 25:44
  Speaker 5: exactly like this, uh, six months ago. I had to
• 25:49
  Speaker 5: deal with where a man with the same name as
• 25:51
  Speaker 5: his father, just after his father's death, just sold a
• 25:55
  Speaker 5: piece of property to someone. You know, it was, he
• 25:57
  Speaker 5: was who he said he was. He just wasn't the person.
• 26:00
  Speaker 5: We unwound that transaction because it was fraud. Uh, You know,
• 26:05
  Speaker 5: there is a requirement now that deeds without consideration or
• 26:10
  Speaker 5: deeds of consideration less than $ 100 that the grantee sign
• 26:17
  Speaker 5: to indicate they are willing to accept the transfer. Now,
• 26:21
  Speaker 5: I think the background of that was really in real
• 26:24
  Speaker 5: estate development, developers had a habit of simply transferring all
• 26:29
  Speaker 5: the streets and improvements to a homeowner's association to relieve
• 26:33
  Speaker 5: themselves of responsibility even though that association may have been
• 26:38
  Speaker 5: inactive or defunct. I mean, that does not apply to
• 26:41
  Speaker 5: exempt transactions under the Chapter 11 of the Code, like
• 26:45
  Speaker 5: parent to child, sibling to sibling. But I don't honestly
• 26:49
  Speaker 5: think it's a bad idea to have the grantee sign
• 26:57
  Speaker 5: the deed to verify the requirement and to have an
• 27:01
  Speaker 5: address or at least a date of birth to identify
• 27:06
  Speaker 5: the grantee. Yeah, I mean, we do that all the time.
• 27:11
  Speaker 5: I mean, it's not that big an inconvenience. If you
• 27:15
  Speaker 5: call any doctor's office, I've been doing a lot of
• 27:18
  Speaker 5: transactions with the Cleveland Clinic, and I'll call and say hello,
• 27:21
  Speaker 5: and their first question is, what's your date of birth?
• 27:24
  Speaker 5: And I give them my date of birth. They identify
• 27:27
  Speaker 5: me from that. I mean, it's not– it happens. I mean,
• 27:30
  Speaker 5: in reverse– Sometimes you go to the courthouse and there'll
• 27:34
  Speaker 5: be a judgment lien recorded. Now, those aren't recorded against
• 27:38
  Speaker 5: any specific property. An abstract is just recorded in the
• 27:42
  Speaker 5: name of the judgment debtor, usually with no other identifying characteristics. Well,
• 27:48
  Speaker 5: you're doing a title and the purchaser or the seller
• 27:53
  Speaker 5: has that name. So you've got to go to some
• 27:56
  Speaker 5: links to identify that person through the lender, through the
• 28:01
  Speaker 5: judgment link. lien holder, to make sure they're not the
• 28:04
  Speaker 5: person if it's timely, if it's less than 10 years old. So, yeah,
• 28:09
  Speaker 5: I mean, that's a really good point to bring up.
• 28:12
  Speaker 5: You would think that in another day, in another time,
• 28:15
  Speaker 5: it might not have been as serious a problem. Certainly
• 28:19
  Speaker 5: it is today. A lot of people write their own deeds.
• 28:23
  Speaker 5: They do their own title searches. They can see names.
• 28:26
  Speaker 5: They can put their own name in and find names.
• 28:31
  Speaker 5: other transfers made to people of that same name. So, yeah,
• 28:35
  Speaker 5: I mean, I agree with you. I think it's something
• 28:38
  Speaker 5: the legislature should look at. It would be a good
• 28:42
  Speaker 5: idea if you've got a family lawyer or someone you
• 28:44
  Speaker 5: deal with regularly to mention it to them. If you'd
• 28:49
  Speaker 5: call me and remind me of the office, I'd be
• 28:50
  Speaker 5: more than happy to write a letter to one of
• 28:54
  Speaker 5: our legislators in Putnam County, Senator Tarr or Senator Grady
• 29:00
  Speaker 5: or Senator Jeffries, I mean, Glenn Jeffries tends to get
• 29:03
  Speaker 5: things done. It is something that could be a developing problem.
• 29:07
  Speaker 5: All the records are online now. It's not going to
• 29:09
  Speaker 5: be long before recording is done online, right? Electronic transactions
• 29:15
  Speaker 5: will rule the day. I mean, that doesn't really answer
• 29:18
  Speaker 5: your question because it's almost not a question.
• 29:20
  Speaker 2: Well, what would happen in the hypothetical case that I stated?
• 29:26
  Speaker 6: How would you unwind that?
• 29:29
  Speaker 5: We'd be in a lawsuit. to quiet the title, to
• 29:33
  Speaker 5: avoid the transfer. If it's fraud, it's fraud. There's no
• 29:36
  Speaker 5: statute of limitations on fraud. So as soon as you
• 29:40
  Speaker 5: discover the fraud, file an action in the circuit court
• 29:43
  Speaker 5: where the matter exists, and then if it's a piece
• 29:49
  Speaker 5: of property located inside a municipality, call the city police department.
• 29:53
  Speaker 5: If it's in the county, call the county sheriff, which
• 29:55
  Speaker 5: is one of the things that we did. in Putnam
• 29:59
  Speaker 5: County because it was clearly more than just a mistake.
• 30:04
  Speaker 5: There were other siblings involved. So, yeah. I mean, I
• 30:07
  Speaker 5: know that's– so the best thing to do to avoid
• 30:10
  Speaker 5: that cost and expense is to get something in place.
• 30:14
  Speaker 5: There's a good example of public policy being made by
• 30:17
  Speaker 5: the legislature instead of by the courts. Get something in
• 30:19
  Speaker 5: the place to try and avoid the problem so that
• 30:22
  Speaker 5: it would be only the most extreme case of fraud
• 30:25
  Speaker 5: or misconduct that even slipped through the system. But the
• 30:30
  Speaker 5: only solution I know to now is civil action.
• 30:35
  Speaker 2: Okay, but if I'm writing a deed, there's nothing to
• 30:40
  Speaker 2: prevent me from putting some sort of identifier of the
• 30:44
  Speaker 2: grantee in the deed, such as date of birth or
• 30:48
  Speaker 2: have the grantee sign the deed. so that we can
• 30:53
  Speaker 2: prevent that from happening.
• 30:55
  Speaker 5: Well, I don't think there's anything at all. The requirements
• 30:58
  Speaker 5: for a deed are to identify the names of the parties,
• 31:02
  Speaker 5: that it contain the words grant and convey. It doesn't
• 31:07
  Speaker 5: even need to contain a warranty, but most of them do.
• 31:11
  Speaker 5: It can have general references to exceptions and reservations. For instance,
• 31:16
  Speaker 5: if a deed is signed by Someone with a power
• 31:19
  Speaker 5: of attorney, you always identify the date of the power
• 31:23
  Speaker 5: of attorney and generally attach a copy to the deed.
• 31:26
  Speaker 5: So the date of birth, I think, would be the
• 31:28
  Speaker 5: best identifier. And have the grantee sign it and write
• 31:37
  Speaker 5: their date of birth. You know, that's what you do
• 31:38
  Speaker 5: on a, I don't know what you would do on
• 31:41
  Speaker 5: a power of attorney, but when I have someone sign
• 31:43
  Speaker 5: a durable power of attorney, They sign their name and
• 31:48
  Speaker 5: write their date of birth under that on a line
• 31:50
  Speaker 5: we provide in their own handwriting, same way on a
• 31:53
  Speaker 5: medical power of attorney, which is some verification of the signature,
• 31:57
  Speaker 5: and also it's an identifier. I don't think there's anything
• 32:00
  Speaker 5: wrong with that at all. That's a pretty good suggestion.
• 32:02
  Speaker 5: I'm going to do that from now on.
• 32:04
  Speaker 2: Okay, but I agree with you that it should be
• 32:07
  Speaker 2: written in the law.
• 32:08
  Speaker 5: Yeah, I think it should be. You're right.
• 32:11
  Speaker 2: Okay, great. Thanks.
• 32:12
  Speaker 3: I appreciate your phone call. Thanks a lot for that.
• 32:14
  Speaker 3: I think we have another caller. online here. Caller, what's
• 32:17
  Speaker 3: your first name?
• 32:19
  Speaker 2: Robert.
• 32:20
  Speaker 3: Hey, Robert, you're online with Harvey Payton. What's your question
• 32:22
  Speaker 3: this morning?
• 32:24
  Speaker 6: It's another real estate question that's possibly related to what
• 32:28
  Speaker 6: you all were just talking about, but this is actually
• 32:30
  Speaker 6: a follow-up to something that Harvey helped me with back
• 32:34
  Speaker 6: in May or June concerning five adjacent lots in Lincoln County.
• 32:38
  Speaker 6: Does that ring a bell at all?
• 32:39
  Speaker 5: Oh, yeah, sure it does, down on Coal River. Yes.
• 32:42
  Speaker 6: Okay, so So the situation has changed and now I'm
• 32:48
  Speaker 6: thinking a corrective affidavit would be possibly the solution. And
• 32:55
  Speaker 6: I'd never heard of corrective affidavit. And I was wondering
• 32:58
  Speaker 6: if you could talk about that and when that might
• 33:01
  Speaker 6: be appropriate and when it might not be appropriate.
• 33:04
  Speaker 5: Well, yeah, I mean, that's a procedure that I've used
• 33:07
  Speaker 5: it a couple of times. Actually, it's a, and I,
• 33:11
  Speaker 5: I honestly have to explain to the clerk when I
• 33:13
  Speaker 5: went down to record it. I mean, this is law
• 33:16
  Speaker 5: that's been in effect for like three years. You know,
• 33:19
  Speaker 5: if there is.
• 33:19
  Speaker 6: Because I couldn't find anything about it anywhere.
• 33:24
  Speaker 5: Oh, yeah. It's in the statute. I mean, I can
• 33:28
  Speaker 5: go back to the file where I did it. If
• 33:30
  Speaker 5: you give me a buzz or drop me an email
• 33:32
  Speaker 5: at the office, I can tell you what the statute is.
• 33:35
  Speaker 5: It says that, you know, here's what will happen sometimes.
• 33:38
  Speaker 5: Somebody will make a mistake. They'll put the wrong lot number.
• 33:42
  Speaker 5: or they'll reverse a call. You know, if it's east
• 33:45
  Speaker 5: and west and they read the description backwards, they'll make
• 33:49
  Speaker 5: it west and east. Those happen all the time, and
• 33:53
  Speaker 5: the solution, you know, the only thing we had before
• 33:56
  Speaker 5: was go back and get corrective Ds. Well, who do
• 33:59
  Speaker 5: you get them from? Someone who's dead, somebody's heirs. Now,
• 34:02
  Speaker 5: under certain circumstances, one of which is simply a misstatement
• 34:06
  Speaker 5: of a description, maybe the misspelling of a name, a
• 34:10
  Speaker 5: person interested in, I did it as an attorney that
• 34:15
  Speaker 5: prepared the document. You can submit what's called a corrective affidavit.
• 34:20
  Speaker 5: It identifies the names of the document. It identifies the
• 34:23
  Speaker 5: instrument as a deed or deed of trust, whatever, and
• 34:27
  Speaker 5: a book and page number, and you take it to
• 34:29
  Speaker 5: the clerk's office. They file it. They are supposed to
• 34:34
  Speaker 5: index it in the deed index or whatever index you're
• 34:36
  Speaker 5: correcting under the names of the parties so somebody can
• 34:39
  Speaker 5: go see it. I mean, it's, Yeah, it's– for whatever reason,
• 34:43
  Speaker 5: I mean, I found it. I've used it a couple
• 34:46
  Speaker 5: of times, but it doesn't seem like it's a well-known procedure. So, yeah,
• 34:51
  Speaker 5: I mean, I remember your claim. So if you would
• 34:54
  Speaker 5: give me a buzz or– I'm not going to be
• 34:56
  Speaker 5: there tomorrow. I might be a little bit there today,
• 34:59
  Speaker 5: but I'll be around most of next week. Just either
• 35:01
  Speaker 5: give me a call or call the office, leave a
• 35:03
  Speaker 5: message to remind me, okay?
• 35:06
  Speaker 6: So it turns out that when I talked to you before,
• 35:08
  Speaker 6: I was under the impression– that one of the five
• 35:14
  Speaker 6: lots was conveyed that wasn't supposed to be. They were
• 35:18
  Speaker 6: shipped at one lot to the west.
• 35:20
  Speaker 5: Do you remember that?
• 35:21
  Speaker 3: Oh, yeah.
• 35:22
  Speaker 6: So I did a little retracement of the survey on
• 35:25
  Speaker 6: my own. It turns out the survey is of the
• 35:28
  Speaker 6: lots we occupied. We occupied the correct lots. Keep in
• 35:32
  Speaker 6: mind it's a 1968.
• 35:33
  Speaker 5: It's just misidentified in the deed of conveyance, I think.
• 35:37
  Speaker 6: They put, well, so not only is it the deed,
• 35:41
  Speaker 6: but it started with the 1968 survey. The surveyor got
• 35:44
  Speaker 6: the lot numbers wrong by one.
• 35:48
  Speaker 5: Hey, let me, we're almost out of time. Okay. I
• 35:51
  Speaker 5: don't want to cut you off. I'm sorry. I mean.
• 35:54
  Speaker 6: No problem.
• 35:55
  Speaker 5: Just give me a buzz. Just go down and leave
• 35:57
  Speaker 5: a message and I'll call you and we'll get it
• 36:00
  Speaker 5: figured out.
• 36:00
  Speaker 4: Okay?
• 36:01
  Speaker 5: Okay.
• 36:02
  Speaker 6: Thanks very much.
• 36:03
  Speaker 5: No problem. Thank you for calling. We had a text.
• 36:05
  Speaker 5: We did.
• 36:05
  Speaker 3: This had to do with CPS and some items that
• 36:08
  Speaker 3: were confiscated by CPS. We probably don't have time to
• 36:10
  Speaker 3: get into that, but let me tell you, 304-755-5556, 304-755-5556.
• 36:12
  Speaker 3: Harvey or Tom would be glad to at least listen
• 36:18
  Speaker 3: to you and see if they can help you out.
• 36:20
  Speaker 5: Sure, and from what you said, the person probably has
• 36:22
  Speaker 5: the right to appeal their matter to the circuit court,
• 36:24
  Speaker 5: but if they'll call off the settlement, we're here to
• 36:27
  Speaker 5: help you. That's what our job is, the patent law firm.
• 36:31
  Speaker 5: 755-5556 or paytonlawfirm.com. If you've suffered a loss, an injury,
• 36:37
  Speaker 5: have an issue with an insurance company, or you just
• 36:40
  Speaker 5: feel like somebody's done you wrong, we'll try to help you.
• 36:44
  Speaker 5: That's why we're here. We've been here 50 years doing that.
• 36:47
  Speaker 5: And here for us means here in Nitro. Take care.
• 36:51
  Speaker 3: That's right, the Payton Law Firm. That's Harvey Payton. Thanks
• 36:53
  Speaker 3: for tuning in this week. Tune in again next Thursday
• 36:56
  Speaker 3: for Ask the Lawyer with the Payton Law Firm. Harvey
• 36:58
  Speaker 3: or Tom will be here next week as well. Coming
• 37:01
  Speaker 3: up next is the Dave Allen Show on 580 Live,
• 37:03
  Speaker 3: followed by Talk Line. Then midday, I'll be back this
• 37:05
  Speaker 3: afternoon at 3.06 on Hotline with Dave Weekly. Have a
• 37:08
  Speaker 3: great day, everyone, listening to your voice of Charleston. We
• 37:10
  Speaker 3: are 580 WCHS. Don't forget high school football tonight, 7 o'clock.
• 37:14
  Speaker 5: Right here on 580 WCHS.
• 37:22
  Speaker 1: WCHSAL, W243DRFM Charleston, and W283AQ Crosslanes, a WVRC media station.
• 37:30
  Speaker 1: We're proud to live here too.