Wednesday, July 22, 2009

No. 99 July 22, 2009

Q: I work for the State of California and I have CalPERS retirement benefits that I must divide because I am going through a divorce right now. My husband is a teacher and he used to have retirement benefits that he borrowed heavily against. Now that he lost his job, he cannot repay the loans he obtained against his retirement benefits. Why should I divide my benefits when he actually spent all of his retirement. Am I not entitled to half of his retirement benefits too?
A. If both of your retirement benefits were accumulated between the date of marriage and the date of separation, then you are entitled to half of his and he is entitled to half of yours. Obviously, there is a big problem here. You cannot get half of his since he already spent it all. This is for the Court to decide. There are many factors to take into consideration, not the least of which are the value assigned to each of your retirement benefits, how much of his have already been used up by the loans he obtained. The Court must decide whether or not he would be entitled to his share of your retirement benefits based on the value remaining of his retirement benefits, if any, compared to the value of his share of your retirement benefits. I know it sounds complicated, but it might be necessary to get an actuarial assessment in order to do a comparison of how much of his retirement benefits was lost to you to how much he would gain from your retirement benefits.

Friday, April 10, 2009

98 Bankruptcy

Q: I need to file for Bankruptcy as soon as possible as collectors from various credit cards are really harassing me. I lost my job and I simply cannot pay the credit card bills. I barely have enough money to pay my rent and my food and I cannot pay for anything absolutely essential at this time. What do I need to do?
A: You have to complete credit counseling before you file for bankruptcy. A certificate of completion will need to be filed with the bankruptcy. After you file bankruptcy, but before you get discharged by the Bankruptcy Court, you will need to go through a debtor’s credit handling education course. These are required by new Bankruptcy laws, set up in 2005. To be honest, I consider the pre-bankruptcy requirement totally useless, apparently designed to make the debtor spend more money to get credit counseling that comes much too late. However, the credit handling education course required post bankruptcy filing may turn out to be helpful in many cases. The counseling and the educational course may be obtained from online services that can also provide the counseling and educational requirement via telephone. It is inexpensive (approximately $30 to $40, depending whether for a single person or a couple). After going through the credit counseling, you will need to fill out a bankruptcy questionnaire. I would not advise you to do this alone. An attorney can help you through the process and better prepare you to appear for your 341 hearing, also known as a “debtor’s examination”. This hearing takes place approximately 4 weeks after you file your papers with the Bankruptcy Court. The examiner conducting the hearing is called a Bankruptcy Trustee. He/she is a person hired by the Bankruptcy Court to establish whether your “estate” can pay your debts. Your estate (the sum of your assets) is entitled to exemptions, items of your estate exempt up to a certain amount of money from being sold to pay your creditors. If you have more equity in certain household items than you are entitled to keep as exemption, the Trustee may force you to sell that item, or more likely, to pay the difference between the amount of equity and the exempted amount to your creditors. By the way, I would not advise you to transfer your house, your car or the funds in your bank account to your mother or your sister just before you file for bankruptcy. These are fraudulent transfers and the Trustee will found out. This may simply cause you not to get discharged.
There are other transfers, such as a payment to one creditor for more than $500 that may be reversed by the Trustee. If such a payment has been made within 90 days from the date of the filing of your bankruptcy, it may be viewed as “preferential treatment” of one creditor over another creditor. Again, Bankruptcy laws are complicated and it is not a good idea to go it alone if you have already decided to go that route.

I will be happy to provide a half-hour bankruptcy consultation for the discounted price of $50 (my normal consultation fee is $75 for a half hour). I do not charge that fee if you retain my services to represent you.

Maxine de Villefranche

Tuesday, March 24, 2009

Legal Eaze #97 Discharged Bankruptcy/Spam E-mail

Title: August 29, 2008

Q: A few years ago, I filed a Chapter 7 bankruptcy. I owed about $700 to Washington Mutual back then, but the debt was discharged. I recently applied for an account online with Washington Mutual because that’s the closest bank to my house. The bank opened a checking account about 4 months ago and issued a debit card. When I attempted to add my son as a signatory on the account, my debit card was cancelled by the bank the following day. I could not view any account details online, while my payroll check is in the account. I found out about this while trying to use my debit card at the grocery store and to buy gas for my car. Can the bank take my money away like this?

A: If your bankruptcy was discharged, no the bank cannot. You may have a lawsuit against the bank for violating the U.S. Bankruptcy Court discharge injunction. Once a debt is discharged in a Bankruptcy Court, no one can ever try to collect on it. Many credit cards will sell debt to collection agencies for a penny on the dollar and collection agencies will attempt to collect on these credit card debts, several years later. But your case is completely different. I would contact Washington Mutual and show them your discharge Notice. They might need you to produce the specific Bankruptcy schedule that lists the debt to Washington Mutual, so as to ensure that particular debt was included in your bankruptcy discharge. I suspect that they will return your money rather quickly after finding out that particular debt was already discharged.

Q: I keep receiving e-mails about my winning some contest I never entered into in the UK, or in Nigeria, or some bank clerk looking for someone in the USA to transfer some huge amount of foreign capital into the United States, a percentage of which would be mine. Why do I keep receiving these e-mails and what are they all about?

A. These e-mails are all fraudulent, and I would delete them without even reading them if I was you. The people perpetrating the fraud are looking for a “fish”. If you respond, they might entrap you to give your bank information to them, so that they can empty your bank account. Typically, they send you a bogus check or promise to transfer some large amount of money into your bank account by a certain date, and then ask that you write a check for their “percentage” back to them. If you have the “percentage” amount in your bank account already, they will cash your check while theirs will bounce, and you will be left holding the bag. Please these are all con games. Do not fall for it!
 
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail your questions or comments to http://www.generalaw.com She will answer your questions to the best of her abilities.

Legal Eaze #96 Insured Lawsuit/Defamation/Nail Clippings In Food

Title: August 27, 2008

Q: I sold my car to a guy on a Friday night. He wrecked the car two days later and called me for help. He was driving it without insurance and title had not transferred over to him yet. He gave all of my information to the person who hit him. I agreed to help him by making a claim with my own insurance company to help him fix the car. The car was considered a total loss. Now this guy is suing me for his loss. How can I prepare myself for the Small Claims Court hearing?

A: If you were still insured at the time of the incident and there is a claim/lawsuit against you, you should submit the claim/lawsuit to your own insurance company. One of the important duties of an insurance company is to defend their insured in a legal action where their insured and his/her driver are likely to be liable. Otherwise, you may want to consult with a civil litigator long before the hearing, since following some of his/her suggestions may take some time to put into place.

Q: While fighting a custody battle with my ex-wife, I was accused of numerous allegations such as child abuse, spousal abuse, philanderer, etc. While reading a section of California Civil Law, I read that by law, no one is allowed to defame another without evidence. Since no evidence was offered, do I have a civil lawsuit against the Superior Court since the Judge and clerks did not stop her from saying all these lies?

A. It is highly unlikely that you would be successful in such lawsuit. Judges are absolutely immune from suit for acts or omissions committed in their judicial capacity. As for the clerks in the Courthouse, they have no power to stop a person from saying whatever he/she wants in the courtroom or courthouse.

Q: I found finger and/or toenail clippings in my Del Monte chili. What can I do?

A. Throw it away and never buy Del Monte products again. Or call Del Monte company and complain. They’ll probably send you a flat of Del Monte chili cans to replace the first one. Go back to the store where you bought and demand your money back. If you thinking “Who can I sue to get damages?” you will have to prove what damages you suffered as a result of this find. If you did not suffer extensively from “gag-teritis”, it is unlikely that your lawsuit would be successful.

Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail your questions or comments to http://www.generalaw.com She will answer your questions to the best of her abilities.

Legal Eaze #95 Collecting From Defendant/Single Spouse Bankruptcy/Oral Contracts

Title: August 6, 2008

Q: I sued someone in Small Claims Court and I won. The Defendant appealed and lost the appeal. When can I start collecting from the Defendant?

A: Now seems to be a good time.

Q: Can only one spouse file for Bankruptcy?

A: It is not required that both spouses file for Bankruptcy. Only the filing spouse will be discharged of any debts. You must also realize that the non-filing spouse’s income will be considered in any tests of “income vs. expenses”.

Q. Is a verbal agreement on a $30,000 boat enforceable?

A. The law refers to unwritten agreements as “oral” contracts, not “verbal”. There are several limitations on the enforceability of oral contracts. One of them is the “Statute of Frauds” which is actually a set of statutes. One part of the Statute of Frauds package is found in the Uniform Commercial Code and covers the sale of goods by oral contract. Section 2201 of the Commercial Code states as follows: “Except as otherwise provided in this section, a contract for sale of goods for more than $500 is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in the writing”. Other paragraphs to UCC Section 2301 that make modifications and exceptions to the basic principle and there are other applicable laws, such as in the Harbors and Navigation Code. An important exception is that if the other party admits in a Court pleading that the contract exists, he is bound by it as though he signed it. Another problem with oral contracts is that it is difficult to prove the terms of such contract in Court. The defendant may argue that he had a different “boat” in mind, or a different price or payment terms, etc. Generally speaking, I would say that the agreement cannot be enforced unless there is an exception to the Statute of Frauds that covers it, and it is possible that there is such an exception.

Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.

Legal Eaze #94 Prenuptial Commingling/Marital Settlement Agreement/Limited Non-Durable Power of Attorney for Minor Care

Title: July 23, 2008

Q: Does my prenuptial agreement need to address the commingling of assets?

A. The commingling of assets usually will signify a forfeiture of the protection afforded in the prenuptial agreement with regards to the particular assets that have been commingled. Once commingled, it will be difficult to separate these assets from the rest. Typically, the parties commingle because their intent is to share the entire value of the commingled assets. A prenuptial agreement can certainly address such subject, but it might be a waste of paper to do so, not to mention a waste of the time and energy it takes to draft the paragraph addressing the issue.

Q. MSA: What is it? Must I go to Court to deal with it?

A. An MSA stands for “Marital Settlement Agreement”. It is a document that enumerates all the issues the parties are in agreement with, regarding their dissolution of marriage. Typically, if drafted by an attorney, it will address every issue that pertains to the parties’ divorce, including child custody and visitation, child and spousal support, division of assets and debts, division of retirement benefits, division of business interests, if any, and all other issues that usually arise in the course of a dissolution of marriage. If properly drafted, the parties usually do not have to go to Court in order for the Court to process the Judgment and ancillary papers. This is usually the best way to resolve all issues relating to a divorce (aka dissolution of marriage).

Q. What is a limited Non-durable Power of Attorney for Minor (child/children) care?

A. Typically, it is an authorization by the natural parents or the parties who are usually liable for the care of the child/dren to appoint an agent or agents to care for the child/dren during their absence from the country or their unavailability for any other reason. Such authorization can include, and is not limited to, the right to consent to any necessary medical or dental treatment, or non-medical decisions required for the personal care of the child/dren and every act performed by the agent(s) is ratified by the parent(s) of the child/dren. Such limited Power of Attorney is granted for the duration of the parents’ absence from the country.

Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.

Legal Eaze #93 Separate Vs. Marital Assets/Vacation Pay/Uncontested Divorce

Title: July 2, 2008

Q. What is considered “separate” assets vs. “marital” assets?

A. A separate asset would be an asset obtained through inheritance, bequest or gift from a relative or personal friend. Let’s say you received a house in a will from your deceased mother, that house would be considered your separate asset. Marital assets are the assets you purchase during a marriage with either one or both spouses’ income or retirement funds (if accumulated during the marriage), such as the family residence, cars, jewelry, or any other asset.

Q. I have been working for a company since November of ’05. Last year, I received one week vacation pay. I have recently quit. Do I have any more vacation pay coming?

A. That depends on the company employee policy. Did you get an employee manual when you started working there? Every company is different. It appears that the company gives 1 week vacation per year, but it is only a guess. You would have to contact the company and inquire as to whether or not you are entitled to vacation pay. Again, company policy is the rule here. Companies do not have to give paid vacation to their employees. It is not a written law, but it is advisable for companies to give time off to their employees if only to keep them working for the company. There are too many other companies that want to treat their employees well for retention’s sake.

Q. What is an “uncontested” divorce?

A. It is a dissolution of marriage where the parties are in agreement with all the terms that need addressing in a divorce, such as division of assets and debts, child custody and visitation. In such an event, a marital settlement agreement is usually drafted, could be by an attorney or a para-professional, the parties sign it, the Judge signs it and it them becomes part of the Judgment.

Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880