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.
Wednesday, July 22, 2009
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
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.
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.
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.
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.
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
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
Legal Eaze #92 Foreclosed Addendums/Gas Mileage
Title: June 11, 2008
Q: I want to buy a foreclosed property. Why am I being presented with all kinds of addendums to give up my rights to sue etc. etc. that I don’t really want to sign?
A: Because when you buy a foreclosed property, you need to be aware of potential risks that the bank cannot be aware of. When a bank forecloses on a property, they don’t know whether the previous owners dumped toxic waste in the backyard, or whether there are mold/mildew problems present, or dry rot problems, or pest problems. In other words, the bank personnel have not lived on the premises and the bank wants to ensure that you take the steps necessary to protect yourself before you buy a foreclosed/distressed property. You should hire a professional home inspector, and go to the County Recorder’s office and make sure that there are no liens or assessments against the property. This is called “due diligence”. You need to be aware of anything that could affect the property and your pocketbook in the future so that you don’t come to regret your decision to buy the foreclosed property.
Q: I just bought a brand new car, and was told by the salesman at the dealership that I would get a certain gas mileage. Well, he lied. I get a lot less miles to the gallon than what I was told. What can I do?
A. Did you read the materials that came with the car before you bought it? The specifications on the car should have given you the information you needed to make an informed decision before you bought the car. Now that you have driven the car for a while, it is very doubtful that you can return it because you are not happy with the gas mileage you are getting on the car. It is a little late for that. I understand how frustrating and expensive an error this is, especially at $4.35/gallon. To get back to my previous answer, you should have done your “due diligence” before buying the brand new car. You need to inform yourself about every detail of such an expensive purchase before buying.
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.
Q: I want to buy a foreclosed property. Why am I being presented with all kinds of addendums to give up my rights to sue etc. etc. that I don’t really want to sign?
A: Because when you buy a foreclosed property, you need to be aware of potential risks that the bank cannot be aware of. When a bank forecloses on a property, they don’t know whether the previous owners dumped toxic waste in the backyard, or whether there are mold/mildew problems present, or dry rot problems, or pest problems. In other words, the bank personnel have not lived on the premises and the bank wants to ensure that you take the steps necessary to protect yourself before you buy a foreclosed/distressed property. You should hire a professional home inspector, and go to the County Recorder’s office and make sure that there are no liens or assessments against the property. This is called “due diligence”. You need to be aware of anything that could affect the property and your pocketbook in the future so that you don’t come to regret your decision to buy the foreclosed property.
Q: I just bought a brand new car, and was told by the salesman at the dealership that I would get a certain gas mileage. Well, he lied. I get a lot less miles to the gallon than what I was told. What can I do?
A. Did you read the materials that came with the car before you bought it? The specifications on the car should have given you the information you needed to make an informed decision before you bought the car. Now that you have driven the car for a while, it is very doubtful that you can return it because you are not happy with the gas mileage you are getting on the car. It is a little late for that. I understand how frustrating and expensive an error this is, especially at $4.35/gallon. To get back to my previous answer, you should have done your “due diligence” before buying the brand new car. You need to inform yourself about every detail of such an expensive purchase before buying.
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 #91 Statutory Rape Custody/Revocable Living Trust
Title: May 28, 2008
Q: My daughter, who just turned 18 years old, had a child with a man who has a criminal record. They never married. The baby is a little over 2 years old now. My daughter wants to have sole custody of the child, but this man insists that he wants joint custody of the child and wants to be involved in the life of the child. What should we do?
A: If your daughter just turned 18 and the baby is over 2 years old, this man committed statutory rape. Your daughter was only 16 years old when she gave birth to the child, and was probably only 15 when she was impregnated. She needs to file a Paternity action with the Court to establish who will have custody of the child and also to establish how much child support this man must pay to her. She could certainly also file charges against him for statutory rape. If he already has a criminal record in addition to the statutory rape charge, it is unlikely that he will obtain any kind of custody of this child.
Q: If older people with families from previous marriages get married again, how do they each protect what they want to leave to their own children or grandchildren?
A: By having a Revocable Living Trust prepared, called an A-B Revocable Living Trust. Each trustor basically sets up his/her own trust, although the A-B Trust is usually combined in one book. Each trustor can give his/her assets to members of a previous family, or friends, or a charity or church. Such a trust is very flexible and there are numerous ways of leaving one’s assets to beneficiaries. If one trustor dies before the other, that portion of the Trust becomes irrevocable, and assets from the deceased trustor can be distributed according to the deceased trustor’s wishes, right then and there. I highly recommend that everyone have a Living Trust. If you own a house in California, you should have a Living Trust. The threshold for an estate to have to go through the Probate process when one dies is $100,000. Even though the real estate market is in a downward mode at this time, it is unlikely that your house is worth less than $100,000. Do not think that only the equity is counted towards the minimum threshold. It does not matter that you have a mortgage still on the house. It is the value of your entire estate, i.e. bank accounts, stocks, bonds, cars, jewelry, art, real estate, boat, RV. All will be added up towards the minimum threshold. Having a Living Trust and transferring your assets into the Living Trust will protect your beneficiaries from having your estate go through Probate Court and will instead be transferred directly to them through a minimal process.
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.
Q: My daughter, who just turned 18 years old, had a child with a man who has a criminal record. They never married. The baby is a little over 2 years old now. My daughter wants to have sole custody of the child, but this man insists that he wants joint custody of the child and wants to be involved in the life of the child. What should we do?
A: If your daughter just turned 18 and the baby is over 2 years old, this man committed statutory rape. Your daughter was only 16 years old when she gave birth to the child, and was probably only 15 when she was impregnated. She needs to file a Paternity action with the Court to establish who will have custody of the child and also to establish how much child support this man must pay to her. She could certainly also file charges against him for statutory rape. If he already has a criminal record in addition to the statutory rape charge, it is unlikely that he will obtain any kind of custody of this child.
Q: If older people with families from previous marriages get married again, how do they each protect what they want to leave to their own children or grandchildren?
A: By having a Revocable Living Trust prepared, called an A-B Revocable Living Trust. Each trustor basically sets up his/her own trust, although the A-B Trust is usually combined in one book. Each trustor can give his/her assets to members of a previous family, or friends, or a charity or church. Such a trust is very flexible and there are numerous ways of leaving one’s assets to beneficiaries. If one trustor dies before the other, that portion of the Trust becomes irrevocable, and assets from the deceased trustor can be distributed according to the deceased trustor’s wishes, right then and there. I highly recommend that everyone have a Living Trust. If you own a house in California, you should have a Living Trust. The threshold for an estate to have to go through the Probate process when one dies is $100,000. Even though the real estate market is in a downward mode at this time, it is unlikely that your house is worth less than $100,000. Do not think that only the equity is counted towards the minimum threshold. It does not matter that you have a mortgage still on the house. It is the value of your entire estate, i.e. bank accounts, stocks, bonds, cars, jewelry, art, real estate, boat, RV. All will be added up towards the minimum threshold. Having a Living Trust and transferring your assets into the Living Trust will protect your beneficiaries from having your estate go through Probate Court and will instead be transferred directly to them through a minimal process.
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 #90 Rental Car Wreck/Pour-Over Will/Checking Credit Report/Power of Attorney
Title: April 16, 2008
Q. I rented a car recently. Because I was working when the car was due for return, I asked my brother to return it for me. My brother wrecked the car on the way to the rental car office. Now, I owe a lot of money. What do I do?
A. It depends on the rental contract you signed. If you had to name the authorized drivers when you entered into the rental contract, and your brother was not one of them, yet you let him drive the car back to return it, then it is your responsibility to pay for the damages. If you had insurance on the rental car, then let the insurance pay. If you had no insurance to protect you from this kind of occurrence, then shame on you.
Q. If I have a living trust prepared for me, do I still need a will?
A. Yes, it is called a “pour-over will” and is usually part of a Trust package. The pour-over will is a catch-all document, that will “catch” any assets you forgot or failed to transfer to the trust. Sometimes, an asset worth a substantial amount of money has not been transferred, and if the asset is worth over $100,000, the threshold amount to necessitate that a Probate case be opened in Court, hence it is a good idea to have a Pour-over will drafted so as to make your wishes known with regards to your un-transferred assets.
Q. Will checking my own credit report appear on the credit report as an inquiry for credit?
A. No. New credit applications will appear as an inquiry, but you have the right to verify all credit report entries to ensure they are accurate. Your own verification will not be used as an inquiry for credit. In fact, most credit card companies check your credit report every month. These checks are not reported as credit inquiries. Only new applications for credit are counted.
Q. When does a Power of Attorney for Medical Care go into effect, and how long it is effective?
A. It depends on how the POA was drafted. Most of them become effective when one or two physicians declare you incompetent. Some of them become effective on the date they are signed. If you do not wish a POA to be effective upon signature, then you need to make sure the POA contains a clause that only makes it effective upon your incapacity for making medical decisions about yourself, and are nul and void upon your recovery.
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
Q. I rented a car recently. Because I was working when the car was due for return, I asked my brother to return it for me. My brother wrecked the car on the way to the rental car office. Now, I owe a lot of money. What do I do?
A. It depends on the rental contract you signed. If you had to name the authorized drivers when you entered into the rental contract, and your brother was not one of them, yet you let him drive the car back to return it, then it is your responsibility to pay for the damages. If you had insurance on the rental car, then let the insurance pay. If you had no insurance to protect you from this kind of occurrence, then shame on you.
Q. If I have a living trust prepared for me, do I still need a will?
A. Yes, it is called a “pour-over will” and is usually part of a Trust package. The pour-over will is a catch-all document, that will “catch” any assets you forgot or failed to transfer to the trust. Sometimes, an asset worth a substantial amount of money has not been transferred, and if the asset is worth over $100,000, the threshold amount to necessitate that a Probate case be opened in Court, hence it is a good idea to have a Pour-over will drafted so as to make your wishes known with regards to your un-transferred assets.
Q. Will checking my own credit report appear on the credit report as an inquiry for credit?
A. No. New credit applications will appear as an inquiry, but you have the right to verify all credit report entries to ensure they are accurate. Your own verification will not be used as an inquiry for credit. In fact, most credit card companies check your credit report every month. These checks are not reported as credit inquiries. Only new applications for credit are counted.
Q. When does a Power of Attorney for Medical Care go into effect, and how long it is effective?
A. It depends on how the POA was drafted. Most of them become effective when one or two physicians declare you incompetent. Some of them become effective on the date they are signed. If you do not wish a POA to be effective upon signature, then you need to make sure the POA contains a clause that only makes it effective upon your incapacity for making medical decisions about yourself, and are nul and void upon your recovery.
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
Legal Eaze #89 Paying For Free Gift/Debt Collection Statute of Limitations/Joint Revocable Living Trust
Title: April 2, 2008
Q. I received a book in the mail that I did not order. The box had printing on it describing the contents as a free gift. There was no bill enclosed, therefore I assumed it was indeed a free gift. I just received a bill for $36.00. Do I have to pay for a “free” book or waste an hour of my time waiting in line at the post office to return a book I did not order?
A. You do not have to pay nor do you have to return the book and pay for postage out of your own pocket to return something you did not order. I hope you kept the box as well as the bill. I would write a letter to the sender stating exactly that: you will not pay for this book because you did not order it, and because you thought it was a gift, nor will you pay for postage to return it.
Q. Is there a statute of limitations on collection of debts?
A. Yes there is. If the debt was incurred as a result of a written contract, the statute of limitations is 4 years. If the debt was made orally, the statute is 2 years. Very often, some collection agencies will buy debt in bulk for a couple of pennies on the dollar owed and will then attempt to collect on the debt. Sometimes, the debt is 10 to 15 years old. The collectors can really harass people, calling them at all times of day and night, calling at work, despite laws that protect from this kind of harassment. Often, the debtors don’t know any better and pay the debt. The statute of limitations will protect the debtors, but the collection agency can place a derogatory note on the debtor’s credit report. If that happens, it falls upon the debtor to respond and ask the credit reporting agency to put a note written by the debtor explaining why that particular debt has not been paid. If the debt is older than 10 years, the credit reporting agency cannot still report it. Even when a debtor files for bankruptcy, the debts unpaid due to a bankruptcy cannot be reported for longer than 10 years.
Q. If older people with families from previous marriages get married, how do they each protect what they want to leave to their own children or grandchildren?
A. By setting up a Joint revocable Living Trust. When one spouse dies, that spouse’s half of the trust becomes irrevocable, and whatever assets are in it will get transferred to the intended beneficiaries.
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
Q. I received a book in the mail that I did not order. The box had printing on it describing the contents as a free gift. There was no bill enclosed, therefore I assumed it was indeed a free gift. I just received a bill for $36.00. Do I have to pay for a “free” book or waste an hour of my time waiting in line at the post office to return a book I did not order?
A. You do not have to pay nor do you have to return the book and pay for postage out of your own pocket to return something you did not order. I hope you kept the box as well as the bill. I would write a letter to the sender stating exactly that: you will not pay for this book because you did not order it, and because you thought it was a gift, nor will you pay for postage to return it.
Q. Is there a statute of limitations on collection of debts?
A. Yes there is. If the debt was incurred as a result of a written contract, the statute of limitations is 4 years. If the debt was made orally, the statute is 2 years. Very often, some collection agencies will buy debt in bulk for a couple of pennies on the dollar owed and will then attempt to collect on the debt. Sometimes, the debt is 10 to 15 years old. The collectors can really harass people, calling them at all times of day and night, calling at work, despite laws that protect from this kind of harassment. Often, the debtors don’t know any better and pay the debt. The statute of limitations will protect the debtors, but the collection agency can place a derogatory note on the debtor’s credit report. If that happens, it falls upon the debtor to respond and ask the credit reporting agency to put a note written by the debtor explaining why that particular debt has not been paid. If the debt is older than 10 years, the credit reporting agency cannot still report it. Even when a debtor files for bankruptcy, the debts unpaid due to a bankruptcy cannot be reported for longer than 10 years.
Q. If older people with families from previous marriages get married, how do they each protect what they want to leave to their own children or grandchildren?
A. By setting up a Joint revocable Living Trust. When one spouse dies, that spouse’s half of the trust becomes irrevocable, and whatever assets are in it will get transferred to the intended beneficiaries.
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
Legal Eaze #88 Medical Marijuana Use/Small Claims Court/Filing Taxes
Title: March 5, 2008
This is a re-visitation of my last column with regards to the question about how one can smoke medical marijuana in one’s apartment without incurring the wrath of the landlord or neighbors. I received a very instructive e-mail from an enlightened reader who suggested that a person with a prescription for medical marijuana find another method of getting it into his/her system, i.e. nebulizer, cookies, brownies, honey, breath strips and even ointments would not only be excellent alternate methods, but in fact healthier. A reputed marijuana dispensary would probably carry all of the above-mentioned products.
Q: What should I know in order to win my Small Claims Court case?
A: Get to Court on time, or even a little early. Have your case and evidence organized. The story of your case should be told in a chronological order, and your argument should be short and concise. Have your documentation in triplicate (one for the judge, one for opposing party and the last one for you to refer to). Use a highlighter to draw attention to relevant portions of your documents. Dress and behave appropriately. Practice your argument (practice makes perfect). Bring a witness willing to testify on your behalf. A live witness is better than a signed statement by that witness. It is difficult to cross-examine a written statement. Wait until the Judge tells you it’s your turn to speak. Do not interrupt the other party. You will be given an opportunity to respond, just be patient. Be reasonable. Judges have to listen to many people who think they are right all day long. Being reasonable will make you stand out, and eventually might win the judge’s favor, and by the same token, your case.
Q: I am hesitant to file my taxes because I owe money and I can’t pay it right now. Should I withhold from filing my taxes until I have the money to pay?
A. No, file your tax return or extension on time, even if you do not have the money to pay the taxes due. The penalty for failure to file your return on time is 5% of the amount owed for each month the return is late to a maximum of 25%. Save yourself a significant amount of money by simply filing your return on time. You can negotiate a payment plan to pay your taxes over several months, or make an Offer in Compromise. This is when you pay a lump sum to the IRS to resolve all outstanding taxes owed. This occurs when you are simply unable to pay back taxes. Such Offer can be made for a percentage of what you owe. Procrastination can only result in penalties and interest being assessed against you.
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.
This is a re-visitation of my last column with regards to the question about how one can smoke medical marijuana in one’s apartment without incurring the wrath of the landlord or neighbors. I received a very instructive e-mail from an enlightened reader who suggested that a person with a prescription for medical marijuana find another method of getting it into his/her system, i.e. nebulizer, cookies, brownies, honey, breath strips and even ointments would not only be excellent alternate methods, but in fact healthier. A reputed marijuana dispensary would probably carry all of the above-mentioned products.
Q: What should I know in order to win my Small Claims Court case?
A: Get to Court on time, or even a little early. Have your case and evidence organized. The story of your case should be told in a chronological order, and your argument should be short and concise. Have your documentation in triplicate (one for the judge, one for opposing party and the last one for you to refer to). Use a highlighter to draw attention to relevant portions of your documents. Dress and behave appropriately. Practice your argument (practice makes perfect). Bring a witness willing to testify on your behalf. A live witness is better than a signed statement by that witness. It is difficult to cross-examine a written statement. Wait until the Judge tells you it’s your turn to speak. Do not interrupt the other party. You will be given an opportunity to respond, just be patient. Be reasonable. Judges have to listen to many people who think they are right all day long. Being reasonable will make you stand out, and eventually might win the judge’s favor, and by the same token, your case.
Q: I am hesitant to file my taxes because I owe money and I can’t pay it right now. Should I withhold from filing my taxes until I have the money to pay?
A. No, file your tax return or extension on time, even if you do not have the money to pay the taxes due. The penalty for failure to file your return on time is 5% of the amount owed for each month the return is late to a maximum of 25%. Save yourself a significant amount of money by simply filing your return on time. You can negotiate a payment plan to pay your taxes over several months, or make an Offer in Compromise. This is when you pay a lump sum to the IRS to resolve all outstanding taxes owed. This occurs when you are simply unable to pay back taxes. Such Offer can be made for a percentage of what you owe. Procrastination can only result in penalties and interest being assessed against you.
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 #87 Medical Marijuana/Cell Phone Driving
Title: February 20, 2008
Q. I have a physician’s prescription for the use of medical marijuana to ease the back pain I constantly experience after undergoing several back surgeries. I live in an apartment and I fear that the management will eventually evict me for smoking it in my apartment. Already my immediate neighbors have complained that they can smell marijuana right through our common walls. What can I do to protect myself against a potential eviction?
A. Honestly, I cannot answer your question because the Courts have not yet addressed your situation. The Compassionate Use Act of 1996 (California law addressing the lawful use of medical marijuana) has been narrowly interpreted to protect the lawful use of medical marijuana only against criminal prosecution from the state. The problem is that the federal government still considers the possession and cultivation of marijuana to be illegal under all circumstances. This means you can still be arrested and prosecuted by federal authorities acting within the state. A state court has addressed the situation wherein a computer technician who failed a drug test administered by his employer, despite the fact that he presented a copy of his prescription with the failed drug test results. He claimed that he smoked on his own time and that it helped him better perform on the job. He was nevertheless fired. The Court sided with the employer. In your case, it could go either way, but if a lawful user cannot smoke in his/her own home, then where can he/she? If your landlord attempts to evict you, you might become the test case on this issue.
Q. Is it legal for me to use my cell phone while I am driving?
A. In California, it still is, although not for long. As of July 2008, you will no longer be permitted to use a hand-held type of cell phone while driving. You will still be permitted to use a hands free “speakerphone” type set up for cell phone calls as long as you have both hands on the steering wheel. There have been thousands of accidents due to cell phone usage while driving all over the country. As a result, various jurisdictions took a position that no use of hand-held cell phones while driving is safe use.
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
Q. I have a physician’s prescription for the use of medical marijuana to ease the back pain I constantly experience after undergoing several back surgeries. I live in an apartment and I fear that the management will eventually evict me for smoking it in my apartment. Already my immediate neighbors have complained that they can smell marijuana right through our common walls. What can I do to protect myself against a potential eviction?
A. Honestly, I cannot answer your question because the Courts have not yet addressed your situation. The Compassionate Use Act of 1996 (California law addressing the lawful use of medical marijuana) has been narrowly interpreted to protect the lawful use of medical marijuana only against criminal prosecution from the state. The problem is that the federal government still considers the possession and cultivation of marijuana to be illegal under all circumstances. This means you can still be arrested and prosecuted by federal authorities acting within the state. A state court has addressed the situation wherein a computer technician who failed a drug test administered by his employer, despite the fact that he presented a copy of his prescription with the failed drug test results. He claimed that he smoked on his own time and that it helped him better perform on the job. He was nevertheless fired. The Court sided with the employer. In your case, it could go either way, but if a lawful user cannot smoke in his/her own home, then where can he/she? If your landlord attempts to evict you, you might become the test case on this issue.
Q. Is it legal for me to use my cell phone while I am driving?
A. In California, it still is, although not for long. As of July 2008, you will no longer be permitted to use a hand-held type of cell phone while driving. You will still be permitted to use a hands free “speakerphone” type set up for cell phone calls as long as you have both hands on the steering wheel. There have been thousands of accidents due to cell phone usage while driving all over the country. As a result, various jurisdictions took a position that no use of hand-held cell phones while driving is safe use.
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
Legal Eaze #86 Damage Responsibility/Owner In Absentia
Title: February 6, 2008
Q. I was driving on a rural road and I hit a patch of ice, ending up in someone’s fence. I damaged the fence so much that the cattle in the field could easily get out through the hole in the fence and spill out onto the road. What if someone hits the cattle, am I responsible for the ensuing damage?
A. Yes, you are responsible if the fence is not repaired as soon as possible and the cattle does get out and cause an accident. You will also be responsible for lost cattle, for the repair of the fence and anything else that happens as a result of your mishap. Those are the reasons why you must carry insurance. Of course, aside from your insurance company, you must also notify the property owner that you damaged his fence so that he can take the steps necessary to reign in his cattle. You must ensure that you do everything in your power to repair the damage you caused as soon as possible so as to not compound the consequences of your actions. The less consequences will cost less.
Q. My neighbor has a very big tree right between our houses. With all the snow we’ve had in the past week, a branch from the tree broke and fell on my garage. Not only is the roof of my garage damaged, I can’t use my garage at all right now because the garage door won’t open and close due to the damaged roof. The roof is hanging down, stopping the door from moving up or down. My neighbor does not live in that house during the winter. He lives somewhere in Los Angeles but I don’t have his phone number and I don’t know how to reach him. What do I do?
A. Now you understand why one should always get along with the neighbors and know how to reach them should something bad happens. First, call your insurance company. They will take the steps necessary to find out who owns the house next door, and get in touch with the owner, wherever he/she lives. Your insurance will subrogate the claim, i.e. make a claim against your neighbor’s insurance because it is your neighbor’s responsibility to take care of his property all year round, not just during the summer. It is difficult to deal with an owner in absentia, but not impossible. Good luck!
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
Q. I was driving on a rural road and I hit a patch of ice, ending up in someone’s fence. I damaged the fence so much that the cattle in the field could easily get out through the hole in the fence and spill out onto the road. What if someone hits the cattle, am I responsible for the ensuing damage?
A. Yes, you are responsible if the fence is not repaired as soon as possible and the cattle does get out and cause an accident. You will also be responsible for lost cattle, for the repair of the fence and anything else that happens as a result of your mishap. Those are the reasons why you must carry insurance. Of course, aside from your insurance company, you must also notify the property owner that you damaged his fence so that he can take the steps necessary to reign in his cattle. You must ensure that you do everything in your power to repair the damage you caused as soon as possible so as to not compound the consequences of your actions. The less consequences will cost less.
Q. My neighbor has a very big tree right between our houses. With all the snow we’ve had in the past week, a branch from the tree broke and fell on my garage. Not only is the roof of my garage damaged, I can’t use my garage at all right now because the garage door won’t open and close due to the damaged roof. The roof is hanging down, stopping the door from moving up or down. My neighbor does not live in that house during the winter. He lives somewhere in Los Angeles but I don’t have his phone number and I don’t know how to reach him. What do I do?
A. Now you understand why one should always get along with the neighbors and know how to reach them should something bad happens. First, call your insurance company. They will take the steps necessary to find out who owns the house next door, and get in touch with the owner, wherever he/she lives. Your insurance will subrogate the claim, i.e. make a claim against your neighbor’s insurance because it is your neighbor’s responsibility to take care of his property all year round, not just during the summer. It is difficult to deal with an owner in absentia, but not impossible. Good luck!
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
Legal Eaze #85 Health Insurance Divorce/New Spouse Child Support/Spousal Support
Title: January 23, 2008
Q: My husband is filing for divorce. He says he will drop me from his health insurance. Can he do that?
A: No, he cannot. On the back of the Summons that will be served on you, along with the Petition for Dissolution, there are specific “Standard Family Law restraining Orders”. One of these orders states as follows: “Starting immediately, you and your spouse are restrained from … changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties.” This means neither one of you can cancel insurance on the other.
Q: When calculating child support that I will have to pay by ex-wife, is the income of my new wife considered?
A: Family Code Section 4057.5 specifically mandates and precludes the Court from directly considering the new mate’s income in raising or lowering child support absent an “extraordinary case” in which a child would otherwise suffer extreme hardship under the guideline amount. In other words, the Court is precluded from considering your new wife’s income in setting the amount you must pay in child support, unless Dissomaster, the program used by California Courts, dictates such a low amount of child support if you have no income of your own while your new wife enjoys a large income that it would be a considerable hardship on the child to live on such a low child support amount. It is extremely rare for the Court to consider the new spouse’s income to award child support for a child from a previous marriage because Family Code Section 4057.5 prohibits it, except in dire circumstances.
Q: If I divorce my stay-at-home wife of 15 years, how much spousal support should I expect to pay and for how long? She was a teacher before she married me and could easily go back to work.
A: The Dissomaster program is used by the Court to ascertain the amount of spousal support you need to give your wife. Your income is used as a basis. A 15-year marriage is considered a long term marriage, and therefore it is possible that you may have to support your wife until she remarries or dies. It also depends on her age and her health condition. If she is in her sixties and not in very good health, it is unlikely that she will be hired by any school district. If she is in her forties and in excellent health, she will be urged to get a job as soon as possible. If a marriage is less than 10 years in length, often the Court use half the length of the marriage as the gauge to award spousal support. You must realize that circumstances are different in every divorce and the Court must take these differences into consideration.
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.
Q: My husband is filing for divorce. He says he will drop me from his health insurance. Can he do that?
A: No, he cannot. On the back of the Summons that will be served on you, along with the Petition for Dissolution, there are specific “Standard Family Law restraining Orders”. One of these orders states as follows: “Starting immediately, you and your spouse are restrained from … changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties.” This means neither one of you can cancel insurance on the other.
Q: When calculating child support that I will have to pay by ex-wife, is the income of my new wife considered?
A: Family Code Section 4057.5 specifically mandates and precludes the Court from directly considering the new mate’s income in raising or lowering child support absent an “extraordinary case” in which a child would otherwise suffer extreme hardship under the guideline amount. In other words, the Court is precluded from considering your new wife’s income in setting the amount you must pay in child support, unless Dissomaster, the program used by California Courts, dictates such a low amount of child support if you have no income of your own while your new wife enjoys a large income that it would be a considerable hardship on the child to live on such a low child support amount. It is extremely rare for the Court to consider the new spouse’s income to award child support for a child from a previous marriage because Family Code Section 4057.5 prohibits it, except in dire circumstances.
Q: If I divorce my stay-at-home wife of 15 years, how much spousal support should I expect to pay and for how long? She was a teacher before she married me and could easily go back to work.
A: The Dissomaster program is used by the Court to ascertain the amount of spousal support you need to give your wife. Your income is used as a basis. A 15-year marriage is considered a long term marriage, and therefore it is possible that you may have to support your wife until she remarries or dies. It also depends on her age and her health condition. If she is in her sixties and not in very good health, it is unlikely that she will be hired by any school district. If she is in her forties and in excellent health, she will be urged to get a job as soon as possible. If a marriage is less than 10 years in length, often the Court use half the length of the marriage as the gauge to award spousal support. You must realize that circumstances are different in every divorce and the Court must take these differences into consideration.
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 #84 Charged Twice/Cross-Complaint
Title: January 16, 2008
Q. I purchased several Christmas gifts online to be shipped to my sister’s kids in New York. I ordered the gifts at the beginning of December. I just received my credit card bill and the same gifts were billed on my card twice. I called the online company but I am being given the total runaround. What should I do?
A. You need to call your credit card company and file a complaint. Then you need to write a letter to the company you ordered the gifts from and put your complaint in writing. Make sure you address your letter to the President or CEO of the company, and send it by registered or certified mail. Keep a copy of your letter. I would suggest that you mention you will contact the attorney general of the company’s state if you do not obtain a satisfactory result. If you haven’t received a reply within a reasonable time (give it a month), then contact the attorney general of the state in which the company is located and file a complaint with the attorney general. Not only can you get the information online, but with most attorney general’s offices, you can file the complaint online.
Q. I was sued in Superior Court. I filed a cross-complaint at the beginning of December and served it on the attorney. I have yet to receive an answer to my cross-complaint. Isn’t the “answer” time barred by now?
A. Typically, a cross-complaint has to be served on the party himself, unless the attorney informs you that he had permission to be served on behalf of his client. A cross-complaint must be answered 30 days after it was served, the same timeframe as a regular complaint. You should call this attorney and find out if it is was permissible to serve the attorney rather than the attorney’s client. Not every attorney is retained to file a lawsuit on behalf of a client, and to represent him as a cross-defendant as well. If the attorney tells you that he cannot accept service on behalf of the client, then you have to serve the cross-complaint on the cross-defendant. Hire a process server or a sheriff to do that. Even better, hire an attorney so that the entire lawsuit can be handled properly.
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
Q. I purchased several Christmas gifts online to be shipped to my sister’s kids in New York. I ordered the gifts at the beginning of December. I just received my credit card bill and the same gifts were billed on my card twice. I called the online company but I am being given the total runaround. What should I do?
A. You need to call your credit card company and file a complaint. Then you need to write a letter to the company you ordered the gifts from and put your complaint in writing. Make sure you address your letter to the President or CEO of the company, and send it by registered or certified mail. Keep a copy of your letter. I would suggest that you mention you will contact the attorney general of the company’s state if you do not obtain a satisfactory result. If you haven’t received a reply within a reasonable time (give it a month), then contact the attorney general of the state in which the company is located and file a complaint with the attorney general. Not only can you get the information online, but with most attorney general’s offices, you can file the complaint online.
Q. I was sued in Superior Court. I filed a cross-complaint at the beginning of December and served it on the attorney. I have yet to receive an answer to my cross-complaint. Isn’t the “answer” time barred by now?
A. Typically, a cross-complaint has to be served on the party himself, unless the attorney informs you that he had permission to be served on behalf of his client. A cross-complaint must be answered 30 days after it was served, the same timeframe as a regular complaint. You should call this attorney and find out if it is was permissible to serve the attorney rather than the attorney’s client. Not every attorney is retained to file a lawsuit on behalf of a client, and to represent him as a cross-defendant as well. If the attorney tells you that he cannot accept service on behalf of the client, then you have to serve the cross-complaint on the cross-defendant. Hire a process server or a sheriff to do that. Even better, hire an attorney so that the entire lawsuit can be handled properly.
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
Legal Eaze #83 Intestate Assets/Paralegal Paperwork
Title: December 26, 2007
Q. My boyfriend of 7 years and I bought two adjoining properties in Los Angeles County. The house was built on my side. Utilities were installed on my side, but are connected to his side to operate machinery, and provide water and electricity to various out buildings he installed on his side. He died 2 years ago. He left no will. Now his mother wants to take over and take away out buildings, and various items that we purchased together but located on his side. Do I have any rights?
A. If I understand you correctly, your boyfriend died intestate. This means all of his assets will be distributed according to intestate laws. If he has no children, his assets will go to his parents, if they are still alive. If not, next his assets will go to his brothers and sisters and/or aunts and uncles, then grandparents and nieces and nephews. Since you were not married to him, you have no rights to his assets, however if you can prove that you participated in the purchase of the items being taken away by your boyfriend’s mother, such as having receipts in your possession, then you can claim ownership of these items. If you do not have any proof that you participated in the purchase of the items, and they are located on his side, then they belong to his heirs and not you. This is why it is so important to have at least a will drafted so that your assets will be distributed to the people you decide should inherit them rather than the persons the state of California decide should get them.
Q. I represent myself in my own divorce and hired a paralegal to fill out all the paperwork to be filed in court. Come to find out that the paperwork was filled out incorrectly and now my divorce has turned into a nightmare. What do I do now?
A. Hire an attorney to represent you. All is not lost. Legal paperwork can be amended. Paralegals are not attorneys and they cannot practice law. Many are quite knowledgeable and can do wonders with the court paperwork, but not all. Unfortunately, paralegals do not have to answer to the California State Bar and cannot be sued for malpractice. It is true that attorneys charge more for their services, but rightfully so. They do answer to the California State Bar and can be sued for malpractice.
I wish all of my readers to have good cheer, good food and good company for very Happy and Safe Holidays.
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
Q. My boyfriend of 7 years and I bought two adjoining properties in Los Angeles County. The house was built on my side. Utilities were installed on my side, but are connected to his side to operate machinery, and provide water and electricity to various out buildings he installed on his side. He died 2 years ago. He left no will. Now his mother wants to take over and take away out buildings, and various items that we purchased together but located on his side. Do I have any rights?
A. If I understand you correctly, your boyfriend died intestate. This means all of his assets will be distributed according to intestate laws. If he has no children, his assets will go to his parents, if they are still alive. If not, next his assets will go to his brothers and sisters and/or aunts and uncles, then grandparents and nieces and nephews. Since you were not married to him, you have no rights to his assets, however if you can prove that you participated in the purchase of the items being taken away by your boyfriend’s mother, such as having receipts in your possession, then you can claim ownership of these items. If you do not have any proof that you participated in the purchase of the items, and they are located on his side, then they belong to his heirs and not you. This is why it is so important to have at least a will drafted so that your assets will be distributed to the people you decide should inherit them rather than the persons the state of California decide should get them.
Q. I represent myself in my own divorce and hired a paralegal to fill out all the paperwork to be filed in court. Come to find out that the paperwork was filled out incorrectly and now my divorce has turned into a nightmare. What do I do now?
A. Hire an attorney to represent you. All is not lost. Legal paperwork can be amended. Paralegals are not attorneys and they cannot practice law. Many are quite knowledgeable and can do wonders with the court paperwork, but not all. Unfortunately, paralegals do not have to answer to the California State Bar and cannot be sued for malpractice. It is true that attorneys charge more for their services, but rightfully so. They do answer to the California State Bar and can be sued for malpractice.
I wish all of my readers to have good cheer, good food and good company for very Happy and Safe Holidays.
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
Legal Eaze #82 Pregnancy Affair/Work Without Pay/Unpatented Product
Title: December 12, 2007
Q. I dated a married woman last year. We had sexual relations on several occasions. She told me that she had a platonic relationship with her husband. Before we stopped seeing each other, she informed me that I got her pregnant. She is about to give birth to the child. If this child is mine, I want to be involved in its life, but I have not seen or talked to this woman for several months. How can I become involved in raising my child?
A. How do you know that it is your child? Are you certain? You would need to have a DNA test performed on the child, the woman and you. As I am sure you realize, this might be cause for a breakup of this woman’s marriage. Maybe her relationship with her husband was not what she portrayed it to be. If the child is not yours, your willingness to re-insert yourself back into her life may cause problems for a lot of people. As it stands right now, the child is presumed to be her husband’s child. If she is not contacting you, she might not want her husband to know she had an affair with you. No matter what, I believe it is a mistake for you to force the issue. Stay out of her life right now. Believe me, she will contact you if you are the father of the child.
Q. Can my employer require that I work on the weekends without pay?
A. Your employer can ask you, but you can say no. You are not required to work without pay. You are entitled to compensation for all work performed for your employer. If you do not get paid for overtime, you can file a claim with the Labor Commission. If you are being retaliated against for having filed a claim with the Labor Board, this could be the basis for a civil lawsuit against your employer.
Q. I invented a product that can be used in a commercial kitchen. I have a meeting next week with the general manager of a large restaurant chain in Los Angeles to demonstrate my product. I do not have a patent for this product. What if this company steals my idea? How do I protect myself?
A. You should have a non-disclosure Agreement for the manager to sign. These agreements are very common. If he refuses to sign it, do not demonstrate the product. You can get a “provisional” application for patent at a minimal cost. This is good for one year. In the meantime, you can market the product to various companies. If it sells, then you should get a patent ASAP.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. I dated a married woman last year. We had sexual relations on several occasions. She told me that she had a platonic relationship with her husband. Before we stopped seeing each other, she informed me that I got her pregnant. She is about to give birth to the child. If this child is mine, I want to be involved in its life, but I have not seen or talked to this woman for several months. How can I become involved in raising my child?
A. How do you know that it is your child? Are you certain? You would need to have a DNA test performed on the child, the woman and you. As I am sure you realize, this might be cause for a breakup of this woman’s marriage. Maybe her relationship with her husband was not what she portrayed it to be. If the child is not yours, your willingness to re-insert yourself back into her life may cause problems for a lot of people. As it stands right now, the child is presumed to be her husband’s child. If she is not contacting you, she might not want her husband to know she had an affair with you. No matter what, I believe it is a mistake for you to force the issue. Stay out of her life right now. Believe me, she will contact you if you are the father of the child.
Q. Can my employer require that I work on the weekends without pay?
A. Your employer can ask you, but you can say no. You are not required to work without pay. You are entitled to compensation for all work performed for your employer. If you do not get paid for overtime, you can file a claim with the Labor Commission. If you are being retaliated against for having filed a claim with the Labor Board, this could be the basis for a civil lawsuit against your employer.
Q. I invented a product that can be used in a commercial kitchen. I have a meeting next week with the general manager of a large restaurant chain in Los Angeles to demonstrate my product. I do not have a patent for this product. What if this company steals my idea? How do I protect myself?
A. You should have a non-disclosure Agreement for the manager to sign. These agreements are very common. If he refuses to sign it, do not demonstrate the product. You can get a “provisional” application for patent at a minimal cost. This is good for one year. In the meantime, you can market the product to various companies. If it sells, then you should get a patent ASAP.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #81 Animal Abuse/Hitting Pedestrians
Title: November 21, 2007
Q. I have a neighbor who leaves his three dogs alone in his house for days at a time. I don’t believe these dogs are fed or given sufficient water during the time that he is gone. The dogs are very skinny, their ribs are showing and the house smells very bad during the summer when the windows are open. I feel terrible about these animals not being taken care of properly. What can I do?
A. Lately, Kern County has seen more than its share of animal abuse cases. You can call the Animal Regulation inspector and this owner will be cited, if indeed, his animals are abused. Not feeding your animals and not providing sufficient water is a form of abuse. Obviously, the dogs are relieving themselves in the house because they have no place else to go, hence the bad smell emanating from the house. However, if the dogs have no food and water, the house should not smell so bad since they would not be relieving themselves because they would have nothing to relieve themselves of. Kern County’s Dept. of Animal Regulation, despite its officers’ over the top reaction in certain cases, is a fairly efficient organization. They respond quickly to complaints or reports of abuse. If necessary, your neighbor’s dogs will be taken away from him if the abuse continues. It will be investigated thoroughly, you can be sure of that. Thank you for your concerns about helpless animals.
Q. I live in Stallion Springs and I take the 202 to go home every night around 6:30 PM. Now that it is dark so early, I see people walking along the 202 in the dark, with dark clothes on. What if I hit someone and I did not see that person until the accident happens. What will happen?
A. When you are driving a car, you must be ready for any and all conditions on the road. You might bear some responsibility for the accident depending on the conditions at the scene of the accident. Obviously an investigation would need to be conducted by the police to ascertain whether the pedestrian was at fault. A pedestrian has a duty of due care and must take precautions to avoid an accident. There are numerous statutes and municipal ordinances that provide guidance with regards to this. Violation of a statute or ordinance is evidence of negligence in virtually every jurisdiction. If the law is in your favor, the more power to you.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. I have a neighbor who leaves his three dogs alone in his house for days at a time. I don’t believe these dogs are fed or given sufficient water during the time that he is gone. The dogs are very skinny, their ribs are showing and the house smells very bad during the summer when the windows are open. I feel terrible about these animals not being taken care of properly. What can I do?
A. Lately, Kern County has seen more than its share of animal abuse cases. You can call the Animal Regulation inspector and this owner will be cited, if indeed, his animals are abused. Not feeding your animals and not providing sufficient water is a form of abuse. Obviously, the dogs are relieving themselves in the house because they have no place else to go, hence the bad smell emanating from the house. However, if the dogs have no food and water, the house should not smell so bad since they would not be relieving themselves because they would have nothing to relieve themselves of. Kern County’s Dept. of Animal Regulation, despite its officers’ over the top reaction in certain cases, is a fairly efficient organization. They respond quickly to complaints or reports of abuse. If necessary, your neighbor’s dogs will be taken away from him if the abuse continues. It will be investigated thoroughly, you can be sure of that. Thank you for your concerns about helpless animals.
Q. I live in Stallion Springs and I take the 202 to go home every night around 6:30 PM. Now that it is dark so early, I see people walking along the 202 in the dark, with dark clothes on. What if I hit someone and I did not see that person until the accident happens. What will happen?
A. When you are driving a car, you must be ready for any and all conditions on the road. You might bear some responsibility for the accident depending on the conditions at the scene of the accident. Obviously an investigation would need to be conducted by the police to ascertain whether the pedestrian was at fault. A pedestrian has a duty of due care and must take precautions to avoid an accident. There are numerous statutes and municipal ordinances that provide guidance with regards to this. Violation of a statute or ordinance is evidence of negligence in virtually every jurisdiction. If the law is in your favor, the more power to you.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #80 Community Property and Divorce Jurisdiction/Insufficient Funds
Title: November 5, 2007
Q: My friend is contemplating a divorce from her husband of 10 years. They live in California. She owns a house in Arizona that she must sell soon. Her husband signed off on the house when it was purchased 5 years ago. She plans to file for divorce in Arizona. The proceeds from the sale of this house will be her only retirement security. Is this house community property according to the laws of California?
A: It depends on the nature of the funds she used to purchase the Arizona house. If she used separate property, such as an inheritance, or monies she saved before she got married, then it will be considered separate property. If she used her earnings to purchase the house, earnings are considered community property and the house would then be considered community property according to California law. By the way, she may not be able to file for divorce in Arizona unless she resides there for some time before she files, otherwise California has jurisdiction over the marriage. If she does not reside in Arizona before she files, even though she owns property there, her husband may force the case to be transferred to a California court. I just had a case similar to this where the husband, who had been residing in Nevada after he separated from his wife, filed for divorce in Nevada. Only he was married in California, lived with his wife in California, and the wife remained in California in the house they shared together. The man had to dismiss the case in Nevada while the wife filed a new case in California. The wife never submitted herself to Nevada’s jurisdiction, hence a California court ended up with the case.
Q: I own a business and at times, some customers pay with checks that come back for insufficient funds. What can I do to collect?
A: First you should call the customer and request payment in cash. Do not discuss the bad check with anyone else but the customer and only call at reasonable hours. Be polite and make no threats. Second, make the same demand via certified letter, return receipt requested. If the customer’s bank account is still active, wait a few days and call the bank to see if there are sufficient funds in the account to pay the check. Kern County has a “bad check” program available. They will contact the customer and give him/her a chance to avoid being prosecuted by making the check good. Otherwise, you can file a Small Claims Court claim and may be able to collect extra damages (two or three times the value of the check) or use a collection agency, despite their huge cut.
Maxine de Villefranche has been an attorney for 14 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.
Q: My friend is contemplating a divorce from her husband of 10 years. They live in California. She owns a house in Arizona that she must sell soon. Her husband signed off on the house when it was purchased 5 years ago. She plans to file for divorce in Arizona. The proceeds from the sale of this house will be her only retirement security. Is this house community property according to the laws of California?
A: It depends on the nature of the funds she used to purchase the Arizona house. If she used separate property, such as an inheritance, or monies she saved before she got married, then it will be considered separate property. If she used her earnings to purchase the house, earnings are considered community property and the house would then be considered community property according to California law. By the way, she may not be able to file for divorce in Arizona unless she resides there for some time before she files, otherwise California has jurisdiction over the marriage. If she does not reside in Arizona before she files, even though she owns property there, her husband may force the case to be transferred to a California court. I just had a case similar to this where the husband, who had been residing in Nevada after he separated from his wife, filed for divorce in Nevada. Only he was married in California, lived with his wife in California, and the wife remained in California in the house they shared together. The man had to dismiss the case in Nevada while the wife filed a new case in California. The wife never submitted herself to Nevada’s jurisdiction, hence a California court ended up with the case.
Q: I own a business and at times, some customers pay with checks that come back for insufficient funds. What can I do to collect?
A: First you should call the customer and request payment in cash. Do not discuss the bad check with anyone else but the customer and only call at reasonable hours. Be polite and make no threats. Second, make the same demand via certified letter, return receipt requested. If the customer’s bank account is still active, wait a few days and call the bank to see if there are sufficient funds in the account to pay the check. Kern County has a “bad check” program available. They will contact the customer and give him/her a chance to avoid being prosecuted by making the check good. Otherwise, you can file a Small Claims Court claim and may be able to collect extra damages (two or three times the value of the check) or use a collection agency, despite their huge cut.
Maxine de Villefranche has been an attorney for 14 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 #79 Process Server Charges/ Overturn Custody Judgement/Sales Commission
Title: October 24, 2007
Q: I hired a professional process service to serve divorce papers on my wife. They attempted to serve her 3 times but were unsuccessful. Now they want to charge me more to serve her. What do I do?
A: I cannot advise you as to whether or not the process server charges are proper. After several attempts to serve personally, a process server can then serve the paperwork by substitute service i.e. on another adult who can be found at the same address as your wife, either at home or at work. The process server must also fill out a form called “reasonable diligence” to the effect that several attempts were made to effect personal service, but to no avail. Another way is to leave the paperwork in an appropriate place where your wife would be most likely to see it, such as a few feet from where she is standing if she is avoiding service, or by substitute service at a private post office box where she regularly receives her mail. A copy of the paperwork must also be mailed to your wife. It is established law that a Defendant will not be permitted to defeat service by rendering physical service impossible. If your wife resides in a gated community, by law, registered process servers, upon proper identification, must be granted access to a gated community, staffed by a guard. There is also service by publication available if you cannot find your wife’s location.
Q: Is it possible to overturn a judgment of full custody?
A: Yes it is. If the circumstances have changed, you can make a Motion to Modify custody. However, there must really be a change of circumstances. If the situation is exactly the same as when the judge made his decision and you make the motion to modify custody, the Judge could order you to pay for opposing party’s attorney’s fees. But if the situation is now different, your ex-spouse is ill, or wants to remarry an ex-con who was convicted of child molestation or something the Judge should know about, then go for it.
Q. I recently resigned from a sales position with an insurance company. They refuse to pay my sales commission because I am no longer an employee. Their sale manual clearly states that one must be an employee at the time the check is cut. We are talking about more than $10,000 here. What can I do?
A. Go to the Labor Commission and make a claim. This practice is clearly unethical. The company is violating the contract terms you surely entered into when you began working for it. The employer has a contractual duty to pay the earned commission, and you should not be penalized because your commission is paid several weeks after you earned it.
Maxine de Villefranche has been an attorney for 14 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.
Q: I hired a professional process service to serve divorce papers on my wife. They attempted to serve her 3 times but were unsuccessful. Now they want to charge me more to serve her. What do I do?
A: I cannot advise you as to whether or not the process server charges are proper. After several attempts to serve personally, a process server can then serve the paperwork by substitute service i.e. on another adult who can be found at the same address as your wife, either at home or at work. The process server must also fill out a form called “reasonable diligence” to the effect that several attempts were made to effect personal service, but to no avail. Another way is to leave the paperwork in an appropriate place where your wife would be most likely to see it, such as a few feet from where she is standing if she is avoiding service, or by substitute service at a private post office box where she regularly receives her mail. A copy of the paperwork must also be mailed to your wife. It is established law that a Defendant will not be permitted to defeat service by rendering physical service impossible. If your wife resides in a gated community, by law, registered process servers, upon proper identification, must be granted access to a gated community, staffed by a guard. There is also service by publication available if you cannot find your wife’s location.
Q: Is it possible to overturn a judgment of full custody?
A: Yes it is. If the circumstances have changed, you can make a Motion to Modify custody. However, there must really be a change of circumstances. If the situation is exactly the same as when the judge made his decision and you make the motion to modify custody, the Judge could order you to pay for opposing party’s attorney’s fees. But if the situation is now different, your ex-spouse is ill, or wants to remarry an ex-con who was convicted of child molestation or something the Judge should know about, then go for it.
Q. I recently resigned from a sales position with an insurance company. They refuse to pay my sales commission because I am no longer an employee. Their sale manual clearly states that one must be an employee at the time the check is cut. We are talking about more than $10,000 here. What can I do?
A. Go to the Labor Commission and make a claim. This practice is clearly unethical. The company is violating the contract terms you surely entered into when you began working for it. The employer has a contractual duty to pay the earned commission, and you should not be penalized because your commission is paid several weeks after you earned it.
Maxine de Villefranche has been an attorney for 14 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 #78 Statute of Limitations/Small Claims Citizenship/Court Order/Ex-Parte Motion
Title: October 3, 2007
Q. What is the statue of Limitations?
A. The word is spelled “statute” rather than “statue”. A Statute of Limitations is a law setting forth the maximum period of time after certain events have occurred for legal proceedings based on these events to begin. In many law systems, these legal provisions are part of the civil code or criminal code. For example, in our common law system, we might have a statute limiting prosecution of misdemeanor crimes to two years. In other words, if someone is discovered to have committed a misdemeanor offense 5 years ago, he or she cannot be prosecuted for it because the Statute of Limitations has run on that offense. The same goes for a civil case. If you have a car accident caused by someone else, you have only a certain period of time to sue that other person for any injuries or damages you suffered. The period of time you have to file a lawsuit is called the Statute of Limitations.
Q. Do you have to be an American citizen to file a Small Claims Court action?
A. No. No one will check your citizenship or immigration status to file a claim.
Q. I was personally served with an Order of Examination prepared by a lawyer to appear in Court. I just started a new job and if I take the day off to go to Court, I might lose my job. This is about an old debt that I have been unable to pay because of my unemployment. What happens if I don’t go?
A. The Court will issue a warrant for your arrest. It is a Court order and you must obey it. You need to inform your new employer that you must appear for the examination and that you do not have a choice in the matter. If you do not appear, you will eventually get arrested and brought to Court by the police.
Q. Just before our separation, my husband added my name to the home loan to help build up my credit. Now he refuses to pay the mortgage and just wants the house to be foreclosed on. I am living with my parents now, and cannot afford to pay the mortgage. What can I do?
A. You need to file an Ex-Parte Motion with the Court in your divorce action to force your husband to pay the mortgage. Time is of essence. The family residence is a community asset, and if there is equity in the house, it must be preserved in order to divide that equity fairly between the parties. Your husband’s actions are unfair and selfish.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. What is the statue of Limitations?
A. The word is spelled “statute” rather than “statue”. A Statute of Limitations is a law setting forth the maximum period of time after certain events have occurred for legal proceedings based on these events to begin. In many law systems, these legal provisions are part of the civil code or criminal code. For example, in our common law system, we might have a statute limiting prosecution of misdemeanor crimes to two years. In other words, if someone is discovered to have committed a misdemeanor offense 5 years ago, he or she cannot be prosecuted for it because the Statute of Limitations has run on that offense. The same goes for a civil case. If you have a car accident caused by someone else, you have only a certain period of time to sue that other person for any injuries or damages you suffered. The period of time you have to file a lawsuit is called the Statute of Limitations.
Q. Do you have to be an American citizen to file a Small Claims Court action?
A. No. No one will check your citizenship or immigration status to file a claim.
Q. I was personally served with an Order of Examination prepared by a lawyer to appear in Court. I just started a new job and if I take the day off to go to Court, I might lose my job. This is about an old debt that I have been unable to pay because of my unemployment. What happens if I don’t go?
A. The Court will issue a warrant for your arrest. It is a Court order and you must obey it. You need to inform your new employer that you must appear for the examination and that you do not have a choice in the matter. If you do not appear, you will eventually get arrested and brought to Court by the police.
Q. Just before our separation, my husband added my name to the home loan to help build up my credit. Now he refuses to pay the mortgage and just wants the house to be foreclosed on. I am living with my parents now, and cannot afford to pay the mortgage. What can I do?
A. You need to file an Ex-Parte Motion with the Court in your divorce action to force your husband to pay the mortgage. Time is of essence. The family residence is a community asset, and if there is equity in the house, it must be preserved in order to divide that equity fairly between the parties. Your husband’s actions are unfair and selfish.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #77 Canceling Real Estate Purchase Contract/Removing Self From Mortgage/Rent To Own
Title: September 12, 2007
Q. Other than forfeiting an earnest money deposit, is there a penalty for canceling a real estate purchase contract?
A. It depends on the contract. If the purchase contract was accepted by the seller, escrow was opened, the seller may file a lawsuit for specific performance, specially if the real estate market is in a downward mode and the seller would lose money by having to put the property back on the market and sell it at a reduced price. Time is often of essence in a real estate sale and obviously a lot of time, and profits can be lost when the seller loses several months in paying a mortgage on real estate that did not sell quickly. The penalty would be attorney’s fees in defending a lawsuit for specific performance, not to mention the Court can force you to buy the property if you lose the suit.
Q. Can I remove myself from a mortgage that I had with my mother when she bought her house? I now want to buy my own house, but I cannot qualify because I am still on the hook for the mortgage on my mother’s house.
A. You cannot remove yourself from a mortgage unless the mortgage holder consents or the mortgage is paid off. Typically, this scenario occurs in a marriage that ends up in divorce. But since this is a deal you made with your mother, you cannot “divorce” her. I would approach the subject with your mother and see if she is in a position to refinance her house without your financial backing.
Q. I rented a house with an agreement to rent to own. There are numerous problems with this house. The roof was leaking. I got it fixed. The toilet in the basement was leaking. I got it fixed. The support beams are all crooked, and major repairs need to be done. I had this house appraised, and it is worth $50,000 less than what the owner is asking for it. I have got to get out of this “rent to own” agreement. Can I?
A. It really depends on the terms of the contract you entered into. You may have to let go of the equity you built in the house. However, you may be entitled to recover the cost of the repairs and improvements you made to the house, however you need to document the costs of the repairs and improvements.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. Other than forfeiting an earnest money deposit, is there a penalty for canceling a real estate purchase contract?
A. It depends on the contract. If the purchase contract was accepted by the seller, escrow was opened, the seller may file a lawsuit for specific performance, specially if the real estate market is in a downward mode and the seller would lose money by having to put the property back on the market and sell it at a reduced price. Time is often of essence in a real estate sale and obviously a lot of time, and profits can be lost when the seller loses several months in paying a mortgage on real estate that did not sell quickly. The penalty would be attorney’s fees in defending a lawsuit for specific performance, not to mention the Court can force you to buy the property if you lose the suit.
Q. Can I remove myself from a mortgage that I had with my mother when she bought her house? I now want to buy my own house, but I cannot qualify because I am still on the hook for the mortgage on my mother’s house.
A. You cannot remove yourself from a mortgage unless the mortgage holder consents or the mortgage is paid off. Typically, this scenario occurs in a marriage that ends up in divorce. But since this is a deal you made with your mother, you cannot “divorce” her. I would approach the subject with your mother and see if she is in a position to refinance her house without your financial backing.
Q. I rented a house with an agreement to rent to own. There are numerous problems with this house. The roof was leaking. I got it fixed. The toilet in the basement was leaking. I got it fixed. The support beams are all crooked, and major repairs need to be done. I had this house appraised, and it is worth $50,000 less than what the owner is asking for it. I have got to get out of this “rent to own” agreement. Can I?
A. It really depends on the terms of the contract you entered into. You may have to let go of the equity you built in the house. However, you may be entitled to recover the cost of the repairs and improvements you made to the house, however you need to document the costs of the repairs and improvements.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #76 Non-Competition Clause/Not Credited For Made Up Time
Title: September 3, 2007
Q. My brother bought a “roach coach” business. He paid good money for 3 trucks, the routes and included a no-compete clause so that the company he bought the business from would not get back into the same business within 5 years from the sale. That business is now back in business, operating on the same routes that were sold to my brother only 2 years ago, and taking business away from my brother. What should he do?
A. I believe your brother should sue that company. Usually non-competition clauses are enforceable as long as they are not overly restrictive. For example, not permitting the operators of that company to re-open in the same area the business was previously operating simply protects your brother’s investment in purchasing the company. The enforcement of non-compete clauses in business-sale contracts depends upon the notion that part of what the buyer is paying for is the goodwill of the business (defined as the expectation of future public patronage) and by competing, the seller is unfairly undermining the value of the goodwill for which he was paid. Here your facts make it clear that part of what your brother bought and paid for was “the route”, and if the seller is going after his old customers on the route, that would violate a typical non-compete clause and could be the basis for a successful lawsuit.
Q. One of my co-workers took off a half day last week. He made it up this week. He was then told by our supervisor that because he failed to notify him of the switch, he would not only be docked for the time he missed, but would also not be credited for the made-up time. Is this legal?
A. The employer must live up to its agreement with the employees when a worker needs time off. The contract covering a particular pay or benefits provision does not necessarily have to be written down. However, if there is a written policy, a past practice, a general understanding, that alone may be deemed to be the contract between the parties as to that particular practice. Hence, a particular practice will generally not be against the law most of the time, but failure to honor a practice in an arbitrary or discriminatory manner is likely to be a breach of contract, a civil wrong addressable not through the Labor Commission but through a private lawsuit.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. My brother bought a “roach coach” business. He paid good money for 3 trucks, the routes and included a no-compete clause so that the company he bought the business from would not get back into the same business within 5 years from the sale. That business is now back in business, operating on the same routes that were sold to my brother only 2 years ago, and taking business away from my brother. What should he do?
A. I believe your brother should sue that company. Usually non-competition clauses are enforceable as long as they are not overly restrictive. For example, not permitting the operators of that company to re-open in the same area the business was previously operating simply protects your brother’s investment in purchasing the company. The enforcement of non-compete clauses in business-sale contracts depends upon the notion that part of what the buyer is paying for is the goodwill of the business (defined as the expectation of future public patronage) and by competing, the seller is unfairly undermining the value of the goodwill for which he was paid. Here your facts make it clear that part of what your brother bought and paid for was “the route”, and if the seller is going after his old customers on the route, that would violate a typical non-compete clause and could be the basis for a successful lawsuit.
Q. One of my co-workers took off a half day last week. He made it up this week. He was then told by our supervisor that because he failed to notify him of the switch, he would not only be docked for the time he missed, but would also not be credited for the made-up time. Is this legal?
A. The employer must live up to its agreement with the employees when a worker needs time off. The contract covering a particular pay or benefits provision does not necessarily have to be written down. However, if there is a written policy, a past practice, a general understanding, that alone may be deemed to be the contract between the parties as to that particular practice. Hence, a particular practice will generally not be against the law most of the time, but failure to honor a practice in an arbitrary or discriminatory manner is likely to be a breach of contract, a civil wrong addressable not through the Labor Commission but through a private lawsuit.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #75 Child Support Garnishment/Selling Home
Title: August 18, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I have been paying my ex-wife child support for the last 10 years for my daughter. This has been done through garnishment of my paychecks. At the beginning of August, my daughter turned 18. How much longer am I supposed to pay child support for her?
A. You failed to tell me whether or not she graduated from high school yet. If she is still a full-time high school student, you must pay child support until she turns 19 year old or graduates from high school, whichever comes first. If your daughter graduated from high school already, you must file a Motion to Terminate the child support with the same court that ordered it. If your checks are being garnished, your employer needs a court order to terminate the garnishment. Unfortunately, garnishment does not stop automatically the day your daughter is no longer entitled to child support. You must initiate the change.
Q. I am purchasing a second home while selling my first one. I already live in the new home, despite the fact that escrow has not closed yet. I am paying rent to live there. The buyer of my “old” home and her agent have not contacted in more than six weeks, and it appears this buyer cannot get a loan, despite the fact that she was supposed to be pre-qualified. I had to fix several items that she requested I fix before escrow closes. The date we had decided for escrow to close has long past and gone. I now have a second buyer, who is eager to purchase my home for an all cash transaction. I don’t want to lose this second buyer. What do I do?
A. Without seeing your Agreement to Purchase, I can guess that the house purchase was contingent upon obtaining a loan. If she cannot get the loan she applied for and is now shopping around for another loan, it might be a while. I suggest that you give the buyer either a Notice to Perform or to Cancel the transaction. If the repaired items were not too terribly expensive, or if they were items that needed fixing no matter which buyer buys the house, you should return her deposit back at the end of the time stated on the Notice to Perform and Cancel. That way, there are no hard feelings, otherwise you might be entangled in protracted litigation over her deposit.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I have been paying my ex-wife child support for the last 10 years for my daughter. This has been done through garnishment of my paychecks. At the beginning of August, my daughter turned 18. How much longer am I supposed to pay child support for her?
A. You failed to tell me whether or not she graduated from high school yet. If she is still a full-time high school student, you must pay child support until she turns 19 year old or graduates from high school, whichever comes first. If your daughter graduated from high school already, you must file a Motion to Terminate the child support with the same court that ordered it. If your checks are being garnished, your employer needs a court order to terminate the garnishment. Unfortunately, garnishment does not stop automatically the day your daughter is no longer entitled to child support. You must initiate the change.
Q. I am purchasing a second home while selling my first one. I already live in the new home, despite the fact that escrow has not closed yet. I am paying rent to live there. The buyer of my “old” home and her agent have not contacted in more than six weeks, and it appears this buyer cannot get a loan, despite the fact that she was supposed to be pre-qualified. I had to fix several items that she requested I fix before escrow closes. The date we had decided for escrow to close has long past and gone. I now have a second buyer, who is eager to purchase my home for an all cash transaction. I don’t want to lose this second buyer. What do I do?
A. Without seeing your Agreement to Purchase, I can guess that the house purchase was contingent upon obtaining a loan. If she cannot get the loan she applied for and is now shopping around for another loan, it might be a while. I suggest that you give the buyer either a Notice to Perform or to Cancel the transaction. If the repaired items were not too terribly expensive, or if they were items that needed fixing no matter which buyer buys the house, you should return her deposit back at the end of the time stated on the Notice to Perform and Cancel. That way, there are no hard feelings, otherwise you might be entangled in protracted litigation over her deposit.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Legal Eaze #74 Judgement Lien/S and C Corporation
Title: August 13, 2007
Q. I have a judgment against a customer who did not pay for my landscaping services. How do I get paid?
A. You need to get a lien on his/her real property. The mechanics of creating a lien are as follows: You need to obtain an Abstract of Judgment which reflects the amount and date of Judgment, name and address of creditor (you) as well as the name and address of debtor. The Abstract is issued by the judgment Court. This Abstract is then recorded with the County Recorder in the county where the debtor owns real property. Usually, the judgment lien will be satisfied from the sale proceeds when the property is sold, or refinanced. The lien is secured by the property. You are also entitled to statutory interest, presently 10% per annum. To create a lien against personal property, you need to file a Notice of Judgment lien with the Secretary of State where the debtor resides. Such lien includes information about the creditor and the debtor, the amount and date of judgment and court of issuance and amount of judgment, and the date that the notice was sent to the judgment debtor. Such lien can be used against accounts receivable, equipment, farm products, automobiles and trucks, RVs, etc. The lien will be satisfied when the property is sold. Most often, any property owned by the debtor transferred without satisfaction of the judgment is transferred subject to the lien. This means that if the lien is not satisfied prior to the transfer being made, the property remains subject to the lien in the hands of the transferee, i.e. the property can be taken away from the person who obtained it from the debtor.
Q. I want to incorporate my business. What is an “S” corporation as opposed to a “C” corporation?
A. S and C refer to how the corporation is taxed. An “S” corporation is an ordinary business corporation that has elected to be taxed under Subchapter C of the Internal Revenue Code. It is not taxed on its earnings as a corporation, but instead its earnings are passed through to its shareholders for tax purposes. It is limited to a certain number of shareholders and who may be a shareholder. It is also limited to one class of stock. Losses can be passed on to the investors, two levels of taxation can often be avoided, there is no accumulated earnings tax and there is limited liability protection. A “C” corporation is doubly taxed unless it qualifies and receives IRS approval to be taxed under an “S” corporation.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. I have a judgment against a customer who did not pay for my landscaping services. How do I get paid?
A. You need to get a lien on his/her real property. The mechanics of creating a lien are as follows: You need to obtain an Abstract of Judgment which reflects the amount and date of Judgment, name and address of creditor (you) as well as the name and address of debtor. The Abstract is issued by the judgment Court. This Abstract is then recorded with the County Recorder in the county where the debtor owns real property. Usually, the judgment lien will be satisfied from the sale proceeds when the property is sold, or refinanced. The lien is secured by the property. You are also entitled to statutory interest, presently 10% per annum. To create a lien against personal property, you need to file a Notice of Judgment lien with the Secretary of State where the debtor resides. Such lien includes information about the creditor and the debtor, the amount and date of judgment and court of issuance and amount of judgment, and the date that the notice was sent to the judgment debtor. Such lien can be used against accounts receivable, equipment, farm products, automobiles and trucks, RVs, etc. The lien will be satisfied when the property is sold. Most often, any property owned by the debtor transferred without satisfaction of the judgment is transferred subject to the lien. This means that if the lien is not satisfied prior to the transfer being made, the property remains subject to the lien in the hands of the transferee, i.e. the property can be taken away from the person who obtained it from the debtor.
Q. I want to incorporate my business. What is an “S” corporation as opposed to a “C” corporation?
A. S and C refer to how the corporation is taxed. An “S” corporation is an ordinary business corporation that has elected to be taxed under Subchapter C of the Internal Revenue Code. It is not taxed on its earnings as a corporation, but instead its earnings are passed through to its shareholders for tax purposes. It is limited to a certain number of shareholders and who may be a shareholder. It is also limited to one class of stock. Losses can be passed on to the investors, two levels of taxation can often be avoided, there is no accumulated earnings tax and there is limited liability protection. A “C” corporation is doubly taxed unless it qualifies and receives IRS approval to be taxed under an “S” corporation.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #73 Move Away Custody/Dangerous Used Vehicle
Title: July 25, 2007
Q: My ex-wife remarried a man from New Zealand and she is moving there with our nine year old son. I spend a lot of time with my son, at least 2 full weeks per month, or sometimes more and I am totally opposed to being separated from my son forever. I have a dissolution judgment that gives both of us joint legal and physical custody over our son. What can I do to stop this move?
A: You need to file an Order to Show Cause in the original court to stop the move-away. If you have joint legal and physical custody of the child, it is possible that you would get full custody of this child at the OSC, or later, after a Child Custody Evaluation is performed, which can be costly and is a lengthy process. She will have to justify separating you from your son forever. Move away cases are filling the Courts right now. The law is changing constantly regarding this issue. Obviously a move to New Zealand would change the dynamics of your relationship with your son forever, and such a change requires serious justification. Various Courts apply the law differently, depending which county you obtained your judgment. You need to do this as soon as possible, as you are not telling me how quickly your ex-wife plans her move away.
Q: I bought a used car from a car dealership a couple of weeks ago and paid $15,000. Already the brakes are shot and I need to change the tires because they are threadbare. Isn’t it against the law to sell a vehicle without good brakes and good tires?
A: Yes, it is. However, when you buy a used vehicle, it is your responsibility to make sure you are not buying a vehicle in disrepair or that will fall apart the minute you drive it off the lot. You should have consulted a mechanic to look the car over before purchasing it. Nevertheless, it is against the law for a dealership to sell you a car that is dangerous to drive. You must go back to the dealership and make a complaint that they sold you a car without good brakes and good tires and they need to fix the bad brakes and put better tires on the car. $15,000 is not a measly sum of money to pay for a used car. There is a lot of information you can obtain from the Dept. of Consumer Affairs, Bureau of Automotive Repair about this subject.
Maxine de Villefranche has been an attorney for 14 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.
Q: My ex-wife remarried a man from New Zealand and she is moving there with our nine year old son. I spend a lot of time with my son, at least 2 full weeks per month, or sometimes more and I am totally opposed to being separated from my son forever. I have a dissolution judgment that gives both of us joint legal and physical custody over our son. What can I do to stop this move?
A: You need to file an Order to Show Cause in the original court to stop the move-away. If you have joint legal and physical custody of the child, it is possible that you would get full custody of this child at the OSC, or later, after a Child Custody Evaluation is performed, which can be costly and is a lengthy process. She will have to justify separating you from your son forever. Move away cases are filling the Courts right now. The law is changing constantly regarding this issue. Obviously a move to New Zealand would change the dynamics of your relationship with your son forever, and such a change requires serious justification. Various Courts apply the law differently, depending which county you obtained your judgment. You need to do this as soon as possible, as you are not telling me how quickly your ex-wife plans her move away.
Q: I bought a used car from a car dealership a couple of weeks ago and paid $15,000. Already the brakes are shot and I need to change the tires because they are threadbare. Isn’t it against the law to sell a vehicle without good brakes and good tires?
A: Yes, it is. However, when you buy a used vehicle, it is your responsibility to make sure you are not buying a vehicle in disrepair or that will fall apart the minute you drive it off the lot. You should have consulted a mechanic to look the car over before purchasing it. Nevertheless, it is against the law for a dealership to sell you a car that is dangerous to drive. You must go back to the dealership and make a complaint that they sold you a car without good brakes and good tires and they need to fix the bad brakes and put better tires on the car. $15,000 is not a measly sum of money to pay for a used car. There is a lot of information you can obtain from the Dept. of Consumer Affairs, Bureau of Automotive Repair about this subject.
Maxine de Villefranche has been an attorney for 14 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 #72 Recalled Products/Mold and Mildew
Title: July 4, 2007
Q. There are an awful lot of products being recalled. Why is this happening so much nowadays?
A. A company is recalling a product because principals of the company discovered some safety issue with the product being recalled. It is basically an effort to limit liability for corporate negligence, to avoid costly legal penalties imposed by some government agency overseeing the type of products being manufactured and to curb bad publicity. Of course, this can be very costly because it often entails replacing the recalled product or paying for damages caused by using the product in question. United States has specific requirements in regard to product recalls. Safety-related recalls can be voluntarily initiated by the manufacturer, or made compulsory by a government agency if the risk is significant to consumers and if it is in the consumer’s best interest. Lately, we’ve had a recall on food items produced in Northern California. These food items had to be recalled because not only did they cause death, but also caused hundreds of people to become violently ill from consuming the food. Recalls of cars, tires, children toys and canned food are common. We must return any items which are the subject of a recall immediately. There will be reimbursement of the money paid to buy the product by the store or the manufacturer.
Q. I believe there is toxic mold or mildew in my brand new house. My children are suffering from various illnesses because of it. I have complained about it to the builder, but nothing is being done about it. I think the house was insufficiently covered when it rained last winter during the construction phase and now mold is present in the attic and growing. What can I do?
A. Molds are ubiquitous in nature, and mold spores are a common component of household dust. The term toxic mold is sometimes used to refer to mold-related indoor air quality problems. Exposure to significant quantities or mold spores can cause allergic reactions. Some species or molds can be toxic to humans or animals. You should contact a company specialized in conducting mold inspections. If toxic mold is found, send the report to the builder. The builder may be responsible if you are still within your warranty period, or even outside it, depending on what caused the toxic mold, if any. A lawsuit may be in order if the builder continues to ignore your plea for held.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. There are an awful lot of products being recalled. Why is this happening so much nowadays?
A. A company is recalling a product because principals of the company discovered some safety issue with the product being recalled. It is basically an effort to limit liability for corporate negligence, to avoid costly legal penalties imposed by some government agency overseeing the type of products being manufactured and to curb bad publicity. Of course, this can be very costly because it often entails replacing the recalled product or paying for damages caused by using the product in question. United States has specific requirements in regard to product recalls. Safety-related recalls can be voluntarily initiated by the manufacturer, or made compulsory by a government agency if the risk is significant to consumers and if it is in the consumer’s best interest. Lately, we’ve had a recall on food items produced in Northern California. These food items had to be recalled because not only did they cause death, but also caused hundreds of people to become violently ill from consuming the food. Recalls of cars, tires, children toys and canned food are common. We must return any items which are the subject of a recall immediately. There will be reimbursement of the money paid to buy the product by the store or the manufacturer.
Q. I believe there is toxic mold or mildew in my brand new house. My children are suffering from various illnesses because of it. I have complained about it to the builder, but nothing is being done about it. I think the house was insufficiently covered when it rained last winter during the construction phase and now mold is present in the attic and growing. What can I do?
A. Molds are ubiquitous in nature, and mold spores are a common component of household dust. The term toxic mold is sometimes used to refer to mold-related indoor air quality problems. Exposure to significant quantities or mold spores can cause allergic reactions. Some species or molds can be toxic to humans or animals. You should contact a company specialized in conducting mold inspections. If toxic mold is found, send the report to the builder. The builder may be responsible if you are still within your warranty period, or even outside it, depending on what caused the toxic mold, if any. A lawsuit may be in order if the builder continues to ignore your plea for held.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #71 Lost Driver's License/Lost Luggage
Title: June 20, 2007
Q. I just found out that I lost my driver’s license after I failed to show up in Court for a traffic citation I received for failing to wear my seatbelt. I have to drive my kids to school and to go to work everyday. I don’t have a chauffeur to drive me around. It is OK if I still drive?
A. Unless you can’t afford to be treated like Paris Hilton, and go to jail for 35 days (or however long she was ordered to serve in jail), that is what will happen to you if you keep driving without a driver’s license. You need to take care of the traffic citation first, pay the fine and re-instate your driver’s license. The only way you can re-instate your driver’s license is if you go to Court at 8:00 AM (whichever Courthouse you were scheduled to appear in) tell the clerk at the desk that you want to take care of the old traffic citation. You will have to plead guilty, not guilty or no contest. If you plead not guilty and want a trial, you will have to post bail before you can get a trial date, because you already failed to appear once. So the Court will not trust you again and will require posting bail. When you show up at your trial, you will get your money back if you are found not guilty. If you are found guilty, you have already posted bail, which is usually the amount of the fine. If you pled no contest at the arraignment, you will be given a fine which you will have to pay. At that point, you can request that the DMV reinstate your driver’s license.
Q. I went on a trip to Europe two months ago. The airline I traveled with lost my luggage. I found myself in Madrid without a single item of clothing or shoes, or my toothbrush for that matter. I made a complaint to the airline company, but to this day, I have yet to receive my suitcase. I had some really nice clothes in my bag and jewelry that was worth quite a bit of money. What can I do?
A. Make sure that you document the items contained in your suitcase, as well as their approximate value. Find out the name of the President of the airline company, his/her address and write a certified letter of complaint to the president. I find that if writing to a lowly employee of the company does not work, I go to the head of the company. Such action always brings swift results. Try that and see if it works. I hope you still have your ticket. Explanations on how to make a claim for lost luggage should be printed on the back of the ticket. You can also go on the airline company’s website for additional information.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. I just found out that I lost my driver’s license after I failed to show up in Court for a traffic citation I received for failing to wear my seatbelt. I have to drive my kids to school and to go to work everyday. I don’t have a chauffeur to drive me around. It is OK if I still drive?
A. Unless you can’t afford to be treated like Paris Hilton, and go to jail for 35 days (or however long she was ordered to serve in jail), that is what will happen to you if you keep driving without a driver’s license. You need to take care of the traffic citation first, pay the fine and re-instate your driver’s license. The only way you can re-instate your driver’s license is if you go to Court at 8:00 AM (whichever Courthouse you were scheduled to appear in) tell the clerk at the desk that you want to take care of the old traffic citation. You will have to plead guilty, not guilty or no contest. If you plead not guilty and want a trial, you will have to post bail before you can get a trial date, because you already failed to appear once. So the Court will not trust you again and will require posting bail. When you show up at your trial, you will get your money back if you are found not guilty. If you are found guilty, you have already posted bail, which is usually the amount of the fine. If you pled no contest at the arraignment, you will be given a fine which you will have to pay. At that point, you can request that the DMV reinstate your driver’s license.
Q. I went on a trip to Europe two months ago. The airline I traveled with lost my luggage. I found myself in Madrid without a single item of clothing or shoes, or my toothbrush for that matter. I made a complaint to the airline company, but to this day, I have yet to receive my suitcase. I had some really nice clothes in my bag and jewelry that was worth quite a bit of money. What can I do?
A. Make sure that you document the items contained in your suitcase, as well as their approximate value. Find out the name of the President of the airline company, his/her address and write a certified letter of complaint to the president. I find that if writing to a lowly employee of the company does not work, I go to the head of the company. Such action always brings swift results. Try that and see if it works. I hope you still have your ticket. Explanations on how to make a claim for lost luggage should be printed on the back of the ticket. You can also go on the airline company’s website for additional information.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #70 Living Trust Transfer Deed/Elder Abuse
Title: June 6, 2007
Q. My husband and I have a basic living trust. Our former residence is listed in the living trust but our new home here is not. Can I just type up an amendment to the living trust dropping the old one and inserting the new one? If so, how do I change our new property on the official records?
A. No, you cannot just type up an amendment to the living trust dropping the old one and inserting the new one. You need to have a Transfer Deed prepared, transferring the property from your name as individual owners to your name as trustees of your trust and have that transfer deed recorded with the county Recorder. This document needs to be notarized as well.
Q. My mother who is frail and elderly moved in with my brother last year. I think she is being abused by him. Can you define elder abuse and what can I do to help?
A. Elder abuse occurs when someone causes harm or risk of harm to an older adult. There are several forms of abuse, including physical abuse, sexual abuse, emotional abuse, financial abuse and neglect. Depending on what kind of abuse your mother is a victim of, you can file a Petition for Conservatorship, requesting that you become your mother’s conservator, and insist that your mother be placed in a home for the elderly, if you cannot take her into your home. It also depends on your financial ability to provide for your mother’s needs. People over 80 years old, especially women, are at a greater risk of experiencing elder abuse. If she is dependent on your brother to provide for her basic care, she is particularly vulnerable. Contact resources in your area, or your mother’s doctor to report your concerns. If you feel that your mother is in imminent danger, call the police. If you are not aware of an immediate danger to her health, or financial affairs, check with welfare and social service governmental agencies. Most cities and counties, according to state law, will investigate and protect vulnerable adults. The Adult Protective Services Agency, a component of Human Services state agency is typically responsible for investigating reports of domestic elder abuse. She is your mother and you should have a say in how she is being cared for and treated. It might be a mistake to talk to your brother about this situation.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. My husband and I have a basic living trust. Our former residence is listed in the living trust but our new home here is not. Can I just type up an amendment to the living trust dropping the old one and inserting the new one? If so, how do I change our new property on the official records?
A. No, you cannot just type up an amendment to the living trust dropping the old one and inserting the new one. You need to have a Transfer Deed prepared, transferring the property from your name as individual owners to your name as trustees of your trust and have that transfer deed recorded with the county Recorder. This document needs to be notarized as well.
Q. My mother who is frail and elderly moved in with my brother last year. I think she is being abused by him. Can you define elder abuse and what can I do to help?
A. Elder abuse occurs when someone causes harm or risk of harm to an older adult. There are several forms of abuse, including physical abuse, sexual abuse, emotional abuse, financial abuse and neglect. Depending on what kind of abuse your mother is a victim of, you can file a Petition for Conservatorship, requesting that you become your mother’s conservator, and insist that your mother be placed in a home for the elderly, if you cannot take her into your home. It also depends on your financial ability to provide for your mother’s needs. People over 80 years old, especially women, are at a greater risk of experiencing elder abuse. If she is dependent on your brother to provide for her basic care, she is particularly vulnerable. Contact resources in your area, or your mother’s doctor to report your concerns. If you feel that your mother is in imminent danger, call the police. If you are not aware of an immediate danger to her health, or financial affairs, check with welfare and social service governmental agencies. Most cities and counties, according to state law, will investigate and protect vulnerable adults. The Adult Protective Services Agency, a component of Human Services state agency is typically responsible for investigating reports of domestic elder abuse. She is your mother and you should have a say in how she is being cared for and treated. It might be a mistake to talk to your brother about this situation.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #69 Hit and Run/Will
Title: May 23, 2007
Q. I attended a court hearing and parked my car on the street in front of the Courthouse because there was simply no parking available in the parking lot. When I came out of the hearing, my bumper had been torn from my car, the whole side of the car had been scraped and no one in sight that witnessed the accident. What am I supposed to do now?
A. The first thing you must do is to call the police and report the “hit and run” accident. Second, you have to call your insurance company and report the claim. Third, you have to arrange to get your car repaired. Fourth, hopefully your insurance will cover a rental car so that you have a vehicle to get to work and continue on with your life. If your insurance does not cover the rental car, you will have to pay for it out of your own pocket. Obviously, you do not know who hit your car, and unless you find a witness to the accident, you will never find out. Your own insurance will cover your loss. You will have to pay the deductible.
Q. I am young, poor and single. Why should I have a will?
A. If you are single and die without a will, all of your assets will generally go to your next of kin. If you do not have any children, and your parents are still alive, that means they will get your diary, the one in which you wrote all of your dirty secrets when you were a kid, your love letters, porn stash, naked photos or private sex videos of you that your ex-girlfriend took, items that you would rather have your parents know nothing about. You need to name an “executor”, someone you trust to dispose of the private things you would prefer be destroyed or go to a specific person. If you have a dog or a cat, your will can designate who will take care of your animals. It is important to specify how your pet will be taken care of and by whom. If you get married and have children after you write your will, you need to update it. One should always update his/her will when a major event occurs, or if you experience a significant change in your financial situation. You can also exclude anyone of your choosing from receiving anything under your will. Consider that a will, at the very least, is the insurance that your assets will go where you want them to go. I also advise anyone who owns real estate to have a revocable living trust.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. I attended a court hearing and parked my car on the street in front of the Courthouse because there was simply no parking available in the parking lot. When I came out of the hearing, my bumper had been torn from my car, the whole side of the car had been scraped and no one in sight that witnessed the accident. What am I supposed to do now?
A. The first thing you must do is to call the police and report the “hit and run” accident. Second, you have to call your insurance company and report the claim. Third, you have to arrange to get your car repaired. Fourth, hopefully your insurance will cover a rental car so that you have a vehicle to get to work and continue on with your life. If your insurance does not cover the rental car, you will have to pay for it out of your own pocket. Obviously, you do not know who hit your car, and unless you find a witness to the accident, you will never find out. Your own insurance will cover your loss. You will have to pay the deductible.
Q. I am young, poor and single. Why should I have a will?
A. If you are single and die without a will, all of your assets will generally go to your next of kin. If you do not have any children, and your parents are still alive, that means they will get your diary, the one in which you wrote all of your dirty secrets when you were a kid, your love letters, porn stash, naked photos or private sex videos of you that your ex-girlfriend took, items that you would rather have your parents know nothing about. You need to name an “executor”, someone you trust to dispose of the private things you would prefer be destroyed or go to a specific person. If you have a dog or a cat, your will can designate who will take care of your animals. It is important to specify how your pet will be taken care of and by whom. If you get married and have children after you write your will, you need to update it. One should always update his/her will when a major event occurs, or if you experience a significant change in your financial situation. You can also exclude anyone of your choosing from receiving anything under your will. Consider that a will, at the very least, is the insurance that your assets will go where you want them to go. I also advise anyone who owns real estate to have a revocable living trust.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Monday, March 23, 2009
Legal Eaze #68 Living Will and Trust/Part-Time Resident Property Damage
Title: May 9, 2007
Q. What’s the difference between a living will and a living trust?
A. A living will is a document that spells out last wishes as far as should anything happen that makes one unable to make health care decisions, another can make such decisions in his/her place. The case of Terry Schiavo, the woman whose life was in limbo for some 15 or 20 years while her husband wanted her to be let die in peace and her parents wanted to keep her alive made it all the way to the Supreme Court. I believe she had an accident that left her in a coma. When it happened, she was a young woman. Most people in their twenties do not have a living will, because they do not think of death at their age. Unfortunately, life happens and so does death and life in between. On the other hand, a Living Trust is a document that is set up by a trustor who transfers his real estate and personal estate into an entity called “A revocable Living Trust”. Revocable means it can be changed during the life of the trustor. The property transferred into a Living Trust is managed by a trustee, who can also be the trustor. The trustor must name a successor trustee if he is also acting as the original trustee. At the trustor’s death, all the property that was transferred into the living trust then goes to the beneficiaries. It is the successor trustee’s job to make the transfer smooth. By setting up a Living Trust, the estate of the deceased need not go through Probate, a sometime very long court process that can be very costly. Depending on the complexity of the living trust, it can cost anywhere from $1500 to $5000, or more. The initial cost may appear to be high, but Probate Court cost a lot more.
Q. The winds that we experienced in Tehachapi in the past couple of weeks have damaged a large tree owned by my neighbor. A big branch broke and ended up on the roof of my garage, causing a gash that is going to cost several thousands of dollars to fix. I have not seen my neighbor in at least a month. I believe he is just a part-time resident here. What should I do?
A. You need to contact your homeowners’ insurance company. They will take care of the subrogation, in other words, they will contact the owner next door and ascertain what insurance he has and get reimbursed by that insurance. You must not wait until you have additional damage, otherwise you may have to pay for the additional damage yourself.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. What’s the difference between a living will and a living trust?
A. A living will is a document that spells out last wishes as far as should anything happen that makes one unable to make health care decisions, another can make such decisions in his/her place. The case of Terry Schiavo, the woman whose life was in limbo for some 15 or 20 years while her husband wanted her to be let die in peace and her parents wanted to keep her alive made it all the way to the Supreme Court. I believe she had an accident that left her in a coma. When it happened, she was a young woman. Most people in their twenties do not have a living will, because they do not think of death at their age. Unfortunately, life happens and so does death and life in between. On the other hand, a Living Trust is a document that is set up by a trustor who transfers his real estate and personal estate into an entity called “A revocable Living Trust”. Revocable means it can be changed during the life of the trustor. The property transferred into a Living Trust is managed by a trustee, who can also be the trustor. The trustor must name a successor trustee if he is also acting as the original trustee. At the trustor’s death, all the property that was transferred into the living trust then goes to the beneficiaries. It is the successor trustee’s job to make the transfer smooth. By setting up a Living Trust, the estate of the deceased need not go through Probate, a sometime very long court process that can be very costly. Depending on the complexity of the living trust, it can cost anywhere from $1500 to $5000, or more. The initial cost may appear to be high, but Probate Court cost a lot more.
Q. The winds that we experienced in Tehachapi in the past couple of weeks have damaged a large tree owned by my neighbor. A big branch broke and ended up on the roof of my garage, causing a gash that is going to cost several thousands of dollars to fix. I have not seen my neighbor in at least a month. I believe he is just a part-time resident here. What should I do?
A. You need to contact your homeowners’ insurance company. They will take care of the subrogation, in other words, they will contact the owner next door and ascertain what insurance he has and get reimbursed by that insurance. You must not wait until you have additional damage, otherwise you may have to pay for the additional damage yourself.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #67 Marital Settlement Agreement/Power of Attorney
Title: April 25, 2007
Q. I got a divorce a couple of years ago. My ex-husband and I had a marital settlement agreement. We each kept a car, and each one of us had the responsibility to pay the debt on the vehicle that we kept. My ex-husband kept the truck, and I kept the car. Then he lost his job, failed to make the monthly payments on the truck. Of course, it was repossessed by the bank. The bank sold the truck for less than what was owed on it, and came after me for the balance. Can the bank do that?
A. Yes, it can. Your marital settlement agreement should have had a clause that said as follows: “if one fails to pay the debt owed on the vehicle, and the other party is sued for the balance, the party who was responsible for the debt shall indemnify the other for any expenses incurred as a result of a lawsuit against the other party”. That means that your ex-husband shall repay you for any expenses you incurred as a result of his failure to pay for the truck. However, if he is out of work, it may be difficult for you to obtain any money out of him. You will have to go back to Court and have the marital settlement agreement enforced against him under CCP 664.6 for material default.
Q. My mother-in-law has dementia. She owns a house and a couple of commercial properties that need to be managed properly. She can no longer take care of business. She does not have a power of attorney for financial affairs. My husband, her son, is willing to step up to the plate, but cannot do anything because no one accepts his authority to do anything. Is it too late for her to sign a power of attorney?
A. Yes, it is. She no longer has the mental capacity to sign a power of Attorney over to your son. If she was to sign one now, with her dementia, someone could challenge your son’s authority as having imposed his will on his mother, and used coercion to make her sign the power of attorney. At this point, the only thing he can do is to file a Petition for Conservatorship over her, with him as the Petitioner. However, he needs to make sure to have a recent physician evaluation as to the true mental condition of his mother, and that needs to be filed with the Petition for Conservatorship.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. I got a divorce a couple of years ago. My ex-husband and I had a marital settlement agreement. We each kept a car, and each one of us had the responsibility to pay the debt on the vehicle that we kept. My ex-husband kept the truck, and I kept the car. Then he lost his job, failed to make the monthly payments on the truck. Of course, it was repossessed by the bank. The bank sold the truck for less than what was owed on it, and came after me for the balance. Can the bank do that?
A. Yes, it can. Your marital settlement agreement should have had a clause that said as follows: “if one fails to pay the debt owed on the vehicle, and the other party is sued for the balance, the party who was responsible for the debt shall indemnify the other for any expenses incurred as a result of a lawsuit against the other party”. That means that your ex-husband shall repay you for any expenses you incurred as a result of his failure to pay for the truck. However, if he is out of work, it may be difficult for you to obtain any money out of him. You will have to go back to Court and have the marital settlement agreement enforced against him under CCP 664.6 for material default.
Q. My mother-in-law has dementia. She owns a house and a couple of commercial properties that need to be managed properly. She can no longer take care of business. She does not have a power of attorney for financial affairs. My husband, her son, is willing to step up to the plate, but cannot do anything because no one accepts his authority to do anything. Is it too late for her to sign a power of attorney?
A. Yes, it is. She no longer has the mental capacity to sign a power of Attorney over to your son. If she was to sign one now, with her dementia, someone could challenge your son’s authority as having imposed his will on his mother, and used coercion to make her sign the power of attorney. At this point, the only thing he can do is to file a Petition for Conservatorship over her, with him as the Petitioner. However, he needs to make sure to have a recent physician evaluation as to the true mental condition of his mother, and that needs to be filed with the Petition for Conservatorship.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #66 Stolen Money and Identity/Poisoned Pet Food
Title: April 11, 2007
Q. My mother lives with us. She has a touch of Alzheimer’s, but she is still active and still takes care of her financial obligations. My daughter, who is 16 years old, somehow got a hold of my mother’s credit card and charged a variety of items, such as jewelry, makeup and clothing on it. I don’t know what to do. Please advise.
A. First, I would make sure that your daughter gives the credit card back to its owner, advise your mother of the situation and that she needs to keep her credit card(s) away from your daughter. Second, you need to have a serious talk with your daughter. She needs to realize that she stole not only money from her grandmother, but also her identity and needs to make up for it. You can take away her weekly or monthly allowance until all the charges she put on the credit card are paid for. Or she needs to get a part-time job and earn some money to pay her grandmother back. To call the police and get her charged with identity theft may be counterproductive, Your daughter committed a crime that could have grave consequences for your daughter’s future if she was to repeat her actions.
Q. I believe my cats suffer from kidney failure because I have been feeding them canned food made by the company that sold poisoned pet food. I really don’t have the money to take them to the veterinarian and I am devastated and scared to lose my beloved pets. They have both been vomiting, they refuse to eat, they sleep most of the time, they drink a lot of water and urinate more than usual. What do you advise I do?
A. Ask the veterinarian to give you credit until you can pay for the care of your pets, or borrow the money, otherwise you may very well lose your pets. Menu Foods, the Canadian company that sold the poisoned food will be sued through a class action soon. It bought wheat from China, where the use of rat poison is not forbidden like it is in the USA to kill rats in their wheat fields. The wheat gluten, a source of protein, is added to canned pet food to thicken the sauce. Many pets have died or have suffered from kidney failure. I myself have fed some of the poisoned food to my dogs, noticed their loss of appetite for a few days, saw my female vomit a couple of times, but fortunately the dogs recovered quickly. Your cats need urgent medical treatment. Menu Foods will pay for the care of your cats, however you will more than likely have to give up your right to take part in the class action should you use their help in caring for your animals.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. My mother lives with us. She has a touch of Alzheimer’s, but she is still active and still takes care of her financial obligations. My daughter, who is 16 years old, somehow got a hold of my mother’s credit card and charged a variety of items, such as jewelry, makeup and clothing on it. I don’t know what to do. Please advise.
A. First, I would make sure that your daughter gives the credit card back to its owner, advise your mother of the situation and that she needs to keep her credit card(s) away from your daughter. Second, you need to have a serious talk with your daughter. She needs to realize that she stole not only money from her grandmother, but also her identity and needs to make up for it. You can take away her weekly or monthly allowance until all the charges she put on the credit card are paid for. Or she needs to get a part-time job and earn some money to pay her grandmother back. To call the police and get her charged with identity theft may be counterproductive, Your daughter committed a crime that could have grave consequences for your daughter’s future if she was to repeat her actions.
Q. I believe my cats suffer from kidney failure because I have been feeding them canned food made by the company that sold poisoned pet food. I really don’t have the money to take them to the veterinarian and I am devastated and scared to lose my beloved pets. They have both been vomiting, they refuse to eat, they sleep most of the time, they drink a lot of water and urinate more than usual. What do you advise I do?
A. Ask the veterinarian to give you credit until you can pay for the care of your pets, or borrow the money, otherwise you may very well lose your pets. Menu Foods, the Canadian company that sold the poisoned food will be sued through a class action soon. It bought wheat from China, where the use of rat poison is not forbidden like it is in the USA to kill rats in their wheat fields. The wheat gluten, a source of protein, is added to canned pet food to thicken the sauce. Many pets have died or have suffered from kidney failure. I myself have fed some of the poisoned food to my dogs, noticed their loss of appetite for a few days, saw my female vomit a couple of times, but fortunately the dogs recovered quickly. Your cats need urgent medical treatment. Menu Foods will pay for the care of your cats, however you will more than likely have to give up your right to take part in the class action should you use their help in caring for your animals.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #65 Snowed In Driveway/Firefighter's Rule
Title: March 14, 2007
Q. I live in one of the private communities around Tehachapi. One thing that really irritates me is that the snow removal truck used by the community where I live always pushes the snow on both sides of the street, creating an enormous mountain of snow directly in front of our driveway. This snow is really packed because it has been dragged several feet by the snow scoop in front of the truck and difficult to shovel away. What is worse is that sometimes we have to park the cars in the street because we are unable to get onto our property, then the cars get buried in the snow. Is there anything we can do to prevent that from happening?
A. Welcome to snow country! Do you realize that your problem is the same problem every family living in areas that get snow in the winter has to face every year? Sometimes, there is so much snow that it must be pushed aside for the greater good. Streets must be rid of snow so that cars can get through. Obviously it would be difficult for city or community workers operating snow ploughs to clean every private driveway and would never be able to complete their task of cleaning the streets. It is more time efficient for each family to be responsible for the clearing of its own patch of driveway rather than impose that duty to the city or community. In this instance, the discomfort of a few does relieve total closure of the community roads.
Q. Last year, I worked for a veterinary clinic in the Antelope Valley. About 4 months ago, I was bit by a pit-bull while trying to clean up its cage. The wound was deep and is still very painful. Can I sue the owner of that dog?
A. No you cannot. There is an exception to dog bite laws called the “firefighter’s rule” which is a specific application of the doctrine of assumption of risk. Under the firefighter’s rule, persons whose work necessarily exposes them to certain types of risks created by third parties may not sue those third parties when those risks are realized and lead to personal injury. The idea is that a firefighter, for example, should not be able to sue for injuries resulting from a fire when fire is the precise danger the firefighter is employed to confront. By the same token, a veterinarian or kennel worker ordinarily cannot sue for animal bites since vets and kennel workers are paid precisely because of their expertise in handling animals and their willingness to be exposed to those risks.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. I live in one of the private communities around Tehachapi. One thing that really irritates me is that the snow removal truck used by the community where I live always pushes the snow on both sides of the street, creating an enormous mountain of snow directly in front of our driveway. This snow is really packed because it has been dragged several feet by the snow scoop in front of the truck and difficult to shovel away. What is worse is that sometimes we have to park the cars in the street because we are unable to get onto our property, then the cars get buried in the snow. Is there anything we can do to prevent that from happening?
A. Welcome to snow country! Do you realize that your problem is the same problem every family living in areas that get snow in the winter has to face every year? Sometimes, there is so much snow that it must be pushed aside for the greater good. Streets must be rid of snow so that cars can get through. Obviously it would be difficult for city or community workers operating snow ploughs to clean every private driveway and would never be able to complete their task of cleaning the streets. It is more time efficient for each family to be responsible for the clearing of its own patch of driveway rather than impose that duty to the city or community. In this instance, the discomfort of a few does relieve total closure of the community roads.
Q. Last year, I worked for a veterinary clinic in the Antelope Valley. About 4 months ago, I was bit by a pit-bull while trying to clean up its cage. The wound was deep and is still very painful. Can I sue the owner of that dog?
A. No you cannot. There is an exception to dog bite laws called the “firefighter’s rule” which is a specific application of the doctrine of assumption of risk. Under the firefighter’s rule, persons whose work necessarily exposes them to certain types of risks created by third parties may not sue those third parties when those risks are realized and lead to personal injury. The idea is that a firefighter, for example, should not be able to sue for injuries resulting from a fire when fire is the precise danger the firefighter is employed to confront. By the same token, a veterinarian or kennel worker ordinarily cannot sue for animal bites since vets and kennel workers are paid precisely because of their expertise in handling animals and their willingness to be exposed to those risks.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #64 Conservatorship/Bankrupt Store Claim
Title: February 21, 2007
Q. My son is 38 years old. He is schizophrenic and manic-depressive. He cannot keep a job, and gets into trouble with the law all the time. He receives disability checks, but spends the money within 2 or 3 days after receiving it. The rest of the month, he is broke. He spends his money on beer, cigarettes and buys stuff for his “friends”. His friends are freeloaders who take advantage of his disability. He comes to my house just about every day to get fed, take a shower and get his clothes washed, but otherwise, I don’t know where he sleeps. He refuses to tell me. I tried to follow him but was unsuccessful. What should I do to help him?
A. It appears that your son may need a conservator. As his mother, you can file a Petition for Conservatorship over his person and his estate with the Superior Court. The Court will appoint an investigator (at your cost) to find out whether or not a conservatorship is the right way to go. If you are appointed his conservator (for the person and the estate), you will have the power to make decisions about how his money is spent, and where he will live, among other responsibilities. His care and well-being will be in your hands. A temporary Conservatorship might be granted by the Court (you have to file a Petition for Temporary Conservatorship at the same time as the Petition for General Conservatorship) until the Court investigator has completed a report. This process would be simplified if your son is willing to cooperate and agrees with your conservatorship over him.
Q. I purchased a diamond ring for my wife to give to her during the holidays. I bought it from a jewelry store that since went bankrupt. I paid several hundreds of dollars for the ring. My wife had the ring appraised and found out that the stone is a cubic zirconium, a total fake. I am furious at myself for having been fooled. My wife is furious at me for giving her a fake diamond ring. What do you suggest I do?
A. Since the company has filed for bankruptcy, you need to find out where the bankruptcy case was filed and file a claim with the Bankruptcy Court. If the store gave you a certificate of authenticity with the diamond ring, that can be used as proof that you overpaid for the CZ ring. It might be too late for you to file a claim, depending on how long ago the store filed bankruptcy, but it does not hurt to try.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. My son is 38 years old. He is schizophrenic and manic-depressive. He cannot keep a job, and gets into trouble with the law all the time. He receives disability checks, but spends the money within 2 or 3 days after receiving it. The rest of the month, he is broke. He spends his money on beer, cigarettes and buys stuff for his “friends”. His friends are freeloaders who take advantage of his disability. He comes to my house just about every day to get fed, take a shower and get his clothes washed, but otherwise, I don’t know where he sleeps. He refuses to tell me. I tried to follow him but was unsuccessful. What should I do to help him?
A. It appears that your son may need a conservator. As his mother, you can file a Petition for Conservatorship over his person and his estate with the Superior Court. The Court will appoint an investigator (at your cost) to find out whether or not a conservatorship is the right way to go. If you are appointed his conservator (for the person and the estate), you will have the power to make decisions about how his money is spent, and where he will live, among other responsibilities. His care and well-being will be in your hands. A temporary Conservatorship might be granted by the Court (you have to file a Petition for Temporary Conservatorship at the same time as the Petition for General Conservatorship) until the Court investigator has completed a report. This process would be simplified if your son is willing to cooperate and agrees with your conservatorship over him.
Q. I purchased a diamond ring for my wife to give to her during the holidays. I bought it from a jewelry store that since went bankrupt. I paid several hundreds of dollars for the ring. My wife had the ring appraised and found out that the stone is a cubic zirconium, a total fake. I am furious at myself for having been fooled. My wife is furious at me for giving her a fake diamond ring. What do you suggest I do?
A. Since the company has filed for bankruptcy, you need to find out where the bankruptcy case was filed and file a claim with the Bankruptcy Court. If the store gave you a certificate of authenticity with the diamond ring, that can be used as proof that you overpaid for the CZ ring. It might be too late for you to file a claim, depending on how long ago the store filed bankruptcy, but it does not hurt to try.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Legal Eaze #63 Destructive Child/Prepaid Legal Plans
Title: February 7, 2007
Q. I am a single mother of two. My son is 12 years old and my daughter, 7 years old. Their father has been in prison for the last 5 years. My son is very big for his age and it has been reported to me that he is a bully at school. I searched his room on several occasions, and he appears to have a growing collection of items that I believe he took by force from other kids, such as backpacks, fancy pens, journals, jackets and shirts, etc. I also caught him once burning the tail of our family dog. I just do not know what to do to stop my son from this destructive behavior and I am terribly worried that he will eventually hurt another kid and I will be sued for his actions. Please help!
A. I certainly cannot be the first professional that you have turned to for help! An attorney may not be the best person to give you advice in this situation. Drastic measures need to be taken very quickly before your son turns into a habitual criminal. Either he needs to be scared straight, or be in therapy, or both. He is showing all the signs of growing up to be the worst kind of human being possible. I am sure there are counselors available at his school. I would suggest consulting a psychologist who could provide you with guidance. Make sure to question your daughter about her brother’s behavior towards her. If your son is a bully at school, he may also be a bully at home, harming your daughter. In the meantime, I believe it would be a good idea for you to place the family dog with another family. I would hate for both your daughter and your dog to be injured by your son. You have a very serious problem on your hands and I am afraid that you have little influence or control over the dangerous propensities shown by your son. Please get some professional help as soon as possible.
Q. Is there such a thing as “legal insurance” just like “health insurance”? Can you please tell me where to find it?
A. Yes there is. There are several Prepaid legal plans available on the market. However, I cannot advertise any one of them, so I would suggest you go on the Internet, using your favorite search engine and input the words “Prepaid Legal Plans”. Several plans will come up. Contact each one and find out the requirements for joining the Plan. Good luck!
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Q. I am a single mother of two. My son is 12 years old and my daughter, 7 years old. Their father has been in prison for the last 5 years. My son is very big for his age and it has been reported to me that he is a bully at school. I searched his room on several occasions, and he appears to have a growing collection of items that I believe he took by force from other kids, such as backpacks, fancy pens, journals, jackets and shirts, etc. I also caught him once burning the tail of our family dog. I just do not know what to do to stop my son from this destructive behavior and I am terribly worried that he will eventually hurt another kid and I will be sued for his actions. Please help!
A. I certainly cannot be the first professional that you have turned to for help! An attorney may not be the best person to give you advice in this situation. Drastic measures need to be taken very quickly before your son turns into a habitual criminal. Either he needs to be scared straight, or be in therapy, or both. He is showing all the signs of growing up to be the worst kind of human being possible. I am sure there are counselors available at his school. I would suggest consulting a psychologist who could provide you with guidance. Make sure to question your daughter about her brother’s behavior towards her. If your son is a bully at school, he may also be a bully at home, harming your daughter. In the meantime, I believe it would be a good idea for you to place the family dog with another family. I would hate for both your daughter and your dog to be injured by your son. You have a very serious problem on your hands and I am afraid that you have little influence or control over the dangerous propensities shown by your son. Please get some professional help as soon as possible.
Q. Is there such a thing as “legal insurance” just like “health insurance”? Can you please tell me where to find it?
A. Yes there is. There are several Prepaid legal plans available on the market. However, I cannot advertise any one of them, so I would suggest you go on the Internet, using your favorite search engine and input the words “Prepaid Legal Plans”. Several plans will come up. Contact each one and find out the requirements for joining the Plan. Good luck!
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
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