Power of Attorney May Be Difficult to Revoke

Taneeb v. Branch Banking & Trust Co., Inc., Action No. 7:08CV00439, 2008 WL 5262374, 1 (W.D.Va. Dec. 18, 2008)- Recently a federal court denied a wife’s efforts stop a bank from foreclosing on her home. Her ex-husband has used a power-of-attorney to get a loan secured by the home without her knowledge. Moreover, the wife had expressly revoked her ex-husband’s power-of-attorney. The bank did not know about this revocation. When he secured the loan, the ex-husband executed an affidavit indicating that the power-of-attorney was valid. Relying upon Va. Code Ann. § 11-9.2(b), the Court held that since the bank did not have actual notice of the revocation and the ex-husband executed an affidavit affirming his authority, the foreclosure could not be stopped. While the court conceded that the wife was an “innocent party” her only remedy was in a suit asserted against the husband.

Virginia Trial Court Compels Production of Witness Statements Secured by Insurance Adjustor

Burr v. R.C. Paving, et al., Action No. 08-595 (Suffolk Cir. Ct. Dec. 2, 2008)- In this case, the Circuit Court for the City of Suffolk held that witness accounts taken by an adjustor for an insurance provider with exposure in relation to an auto collision that fatally injured another motorist were discoverable. In concluding that the insurer’s work product was discoverable the court applied a test formulated by the Portsmouth Circuit Court in Wilson v. Norfolk & Portsmouth Belt Line R.R. Co., Action No. 05-041, 69 Va. Cir. 153 (Portsmouth Cir. Ct. Oct. 14, 2005). Under this test the court considers: the likelihood that the recorded event would give rise to litigation; how soon after the recorded event the accounts were taken; the importance of the testimony; and the possibility that information bearing upon witness credibility would be suppressed. Without explaining its application of these factors, the court concluded that the accounts were discoverable. The court noted that the requesting party had shown that the need for the statements was extraordinary and that the same statements might be rightly classified as “privileged” in another case.