Wednesday, July 15, 2015

Opinion of Counsel

By January, 2015 questions have come up as to who OWNS the Redemptoris Mater Seminary in Yona.  According to news report: 

Local Catholic Observer Tim Rohr believes that since its purchase, the Archdiocese has made some secret dealings that have officially turned over the property to a third party, namely a corporation made up of Italians. And he has the Deed Restriction to prove it.

Rohr even sought the opinion of experts such as realtors and attorneys, who he says read over the documents and agreed that control of the property no longer belongs to the Archdiocese.

The Deed Restriction reads, in part, “I decree to designate, assign, earmark, and otherwise set aside the property … to the Redemptoris Mater Archdiocesan Missionary Seminary of Guam, a non profit corporation … in perpetual use.”

Notice that the word "assign" is in the deed restriction.  In one of my entry posts, I showed that the words "alienation" and "assignment" are not the same in legal terms.  However, the jungle disagrees.  According to Tim Rohr: 

Note the statement: "As you well know, 'alienation' and 'assignment' are words of distinction without a difference", and "Any documents containing these words would place a huge cloud on title..." 

Notice the word ASSIGN and refer back to Atty. Terlaje's warning: "Any documents containing these words (assignment) would place a huge cloud on title." 

http://www.pacificnewscenter.com/guam/item/1682-who-owns-the-$40m-redemptoris-mater-seminary-in-yona

It is very clear from Rohr's statement above that he believes the words "alienation" and "assignment" are not the same.  He took Ed Terlaje's words without bothering to look up the legal terms himself.  As I pointed out in one of my entry posts, "alienation" and "assignment" are not the same in legal terms.  A legal dictionary is online, and this is what the legal dictionary says regarding these two words: 

Alienation:  the transfer of title to real property, voluntarily and completely. It does not apply to interests other than title, such as a mortgages.

http://legal-dictionary.thefreedictionary.com/Alienation

Assignment: A transfer of rights in real property or Personal Property to another that gives the recipient—the transferee—the rights that the owner or holder of the property—the transferor—had prior to the transfer.

http://legal-dictionary.thefreedictionary.com/Assignment

Above is "written" documented evidence showing that the two terms are not the same.  Thus, it appears that Ed Terlaje's "legal opinion" was incorrect.  Perhaps, the incorrect legal opinion was due to a lack of knowledge in canon law and in corporation soles. Tim relies on the "opinion" of counsel as his documentation.  We already saw that the legal opinion of a lawyer regarding the words "alienation" and "assignment" to be incorrect."  In fact, according to a business dictionary, an opinion of counsel is defined as follows (bold is mine): 

"Formal, written report by an attorney (or a firm of attorneys) to a client on a specific case or legal problem. It outlines the (1) attorney's understanding and analysis of the facts basic to the case or problem, (2) implication of applicable laws, and (3) a suggested course of action. In some instances (such as in purchase of a property or a firm) where the report certifies the seller's title or legal status, the attorney may be liable for damages if it turns out to be incorrect. Also called legal opinion."

http://www.businessdictionary.com/definition/opinion-of-counsel.html

As anyone can see, there is a possibility that a legal opinion or "opinion of counsel" can be incorrect.  Thus, the legal opinion of Attorney Bronze is what the jungle and CCOG is relying on.  The Archbishop, on the other hand, has three documents as his evidence.  One of those evidence is a CERTIFIED document dated January 28, 2015 and is actually posted in the jungle: 

http://www.scribd.com/doc/260097091/RMS-PTR-L90-2-R1-RNEW

The deed restriction is also on that title document, where it should be.  The fact that it is on the title document showed no encumbrance as to who the owner is. The Archbishop has a written certified document showing that the RM seminary is under the Archdiocese of Agana.  The question is.......if CCOG or Tim Rohr believes that it is NOT under the Archdiocese of Agana, then do they have any written document showing the title to be UNDER another name?  Or is it just the "opinion" of counsel that they rely on?   It should also be noted that their legal counsel has no experience in religious institutions and corporation soles.  He also does not specialize in that area. 

19 comments:

  1. and they also stated that their sorrow over the assignment is that because of it the property can't be sold (properly alienated) for big bucks, thereby revealing their true motive behind making fuss over the assignment. One must be blind not to see that they are whining 'cause they want the seminary not to exist, so their pretext of complaining that it is not in the control of the archdiocese is an outright lie. You can't want something to be controlled by someone and at the same time wanting it not to exist. Something that doesn't exist is not controlled by anyone.

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  2. Not to defend the jungle, but this doesn't have anything to do with religious organization. It has everything to do with Guam law.

    Even if the scenario were the same, but the characters were different, a trustee instead of the archbishop and family members of the trustee instead of the catholic faithful - the outcome would still be the same. Religious institution isn't much of a big deal in this topic. It has no influence over civil law - Guam law...just saying

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    1. Dear Anonymous at 2:29 am,

      Guam's civil law also includes religious organizations. This is why there are law firms and lawyers specializing in religious institutions and corporation soles. According to Guam's law regarding religious corporation sole:

      "§ 10105. Property to be Held in Trust. From and after the filing with the Director of Revenue & Taxation of the said articles of incorporation, verified by affidavit or affirmation as aforesaid and accompanied by the copy of the commission, certificate of election, of letters of appointment of the bishop, chief priest, or presiding elder, duly certified as prescribed in § 10104, such bishop, chief priest, or presiding elder, as the case may be, shall become a corporation sole, and all temporalities, estates and properties of the religious denomination, society, or church theretofore administered or managed by him as such bishop, chief priest, or presiding elder shall be held in trust by him as a corporation sole for the use, purpose, behoof, and sole benefit of his religious denomination, society, or church, including hospitals, schools, colleges, orphan asylums, parsonages, and cemeteries thereof. For the filing of such articles of incorporation the Director of Revenue & Taxation shall collect Twelve Dollars and Fifty cents ($12.50). SOURCE: CC § 504.

      § 10112. Religious Corporations to Hold Land. It shall be lawful for all religious associations, of whatever sect or denomination, whether incorporated in Guam or in some other country, or not incorporated at all, to hold land in Guam upon which to build churches, parsonages, or educational or charitable institutions. SOURCE: CC § 511.

      www.guamcourts.org/CompilerofLaws/GCA/18gca/18gc010.PDF

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  3. In legalese, assignment means to transfer title. See http://thelawdictionary.org/assignment/

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    1. Dear Anonymous at 1:11 am,

      An assignment is a different kind of transfer. It is not what we think. According to US legal.com:

      "An assignment is the transfer of a property right, title, or interest under an agreement to some particular person.[i] However, in In re Ashford, 73 B.R. 37, 39 (Bankr. N.D. Tex. 1987) every transfer of interest is not an assignment. -

      http://assignments.uslegal.com/distinction-between-assignment-and-other-transfers/

      The weblink above shows that there is a difference between an assignment and transfer. A transfer that involves the selling of a property (for example) is not an assignment.

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    2. An assignment appears to be a type of transfer. The definition of assignment that you cite to above includes the transfer of title. In legalese, title equates to ownership. Thus, an assignment appears to be a transfer of ownership. The point is that there is a cloud (uncertainty) on the present ownership of the property due to less than articulate drafting of the instrument. I don't presume to know what a court would decide, however, I think confusion could have been avoided with proper drafting of the instrument. It seems that Mr. Terlaje recognized the possible confusion this would create. Unfortunately, his advice was not taken.

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    3. Dear Anonymous at 9:50 pm,

      I agree with your comment here. I think this also explains the Archbishop's letter when he tried to explain the difference between alienation and assignment to the former Council Board.

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  4. If the archbishop is in complete control of the property, perhaps it is within his power to amend the instrument such that the confusion is extinguished. Better to light a candle then to curse the darkness.

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    1. Dear Anonymous at 10:19 am,

      That depends on whether the other side is committed to listen. It takes two people to make any relationship work.

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    2. Diana @ 5:13pm--
      But don't you agree that Anonymous has a point in that such a move would constitute a first step towards fixing at least this point of contention? At least it'll show good faith on the Archbishop's side.

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    3. Dear Anonymous at 5:52 pm,

      What do you suggest that the Archbishop should do? What first step should he make? Could you be specific in your answer?

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    4. Hello....follow the thread here! Exactly what Anonymous @ 10:19AM suggests.... i

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    5. Dear Anonymous at 6:01 pm,

      Hello....that is why I said it explains the Archbishop's letter. The AFC did not understand the difference so the Archbishop explained to them the difference in his letter and even cited the canon laws.

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    6. Yes, yes, yes....but the question is: what do you think of Anonymous at 10:19's suggestion "to amend the instrument such that the confusion is extinguished", given the archbishop has complete control of the property.

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    7. Dear Anonymous at 8:00 am,

      The confusion started because the former finance council thought that the Archbishop was giving away the property so that it no longer belongs to the Archdiocese of Agana. Below is a weblink showing an official document of the title that the RM seminary belongs to the Archdiocese of Agana that was passed in January 2012 after the finance council was removed. The title reads:

      Title Guaranty of Guam, Inc. hereby reports that the title to the land described in Schedule "C" attached hereto is vested in: Archbishop of Agana, Anthony Sablan Apuron, , a Corporation Sole, OFM, CAP., D.D. Incumbent

      http://www.scribd.com/doc/260097091/RMS-PTR-L90-2-R1-RNEW

      What do you suggest should be amended in there?

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    8. I'm just following up on your discussion between an Anonymous poster: Anon @ 9:50PM and your agreement with the comment @ 8:45AM which led to the suggestion @10:19. If you believe the suggestion not necessary, then just say so.

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    9. Dear Anonymous at 8:59 am,

      I asked to be specific in his suggestion.

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  5. Hello, I am anonymous at 1:11, 9:50, and 10:19. Perhaps an amendment could include some plain language which expressly indicates that the instrument does not constitute a conveyance of title and that the office of the Archibishop retains sole control over the property. Perhaps Mr. Terlaje could be engaged in drafting such language. The amendment would then be signed by the Archbishop and the Board of Guarantors.

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    1. Dear Anonymous at 1:09 pm,

      Thank you. That is much more specific.

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