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.
Subscribe to:
Posts (Atom)