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
Showing posts with label contract. Show all posts
Showing posts with label contract. Show all posts
Tuesday, March 24, 2009
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
Monday, March 23, 2009
Legal Eaze #47 Sub-Contractor Lien/Not Bound by Attorney-Client Privilege
Title: May 24, 2006
Q. I hired a contractor to turn my two-car garage into a three-car garage. The contractor collected a deposit of 10 percent plus a material deposit and the remainder of the contract was to be paid when the work was completed. After completion of the project by a sub-contractor, I paid the contractor the remainder of the contract price. The sub-contractor later informed me that he had not been paid by the contractor and that he was filing a mechanic’s lien on my house. Can he do that?
A. Not unless (1) the sub-contractor served you with a 2-day preliminary notice before he began work, or sometime during or immediately after his work was completed or (2) the sub-contractor had a direct contract with you. If a contractor (as opposed to a sub-contractor) has a direct contract with you, there is no 20-day preliminary notice requirement. The contractor is allowed to file a lien within 90 days of completion of the project and then has 90 days in which to foreclose on the lien, which can be done in small claims court.
Q. I went to a lawyer for a legal consultation and my girlfriend came with me. I discussed a family law matter with him. My girlfriend knows everything about my marital problems. The attorney warned me that although he was bound by the attorney-client privilege, my girlfriend was not. What did he mean by that?
A It means that anything that is discussed in an attorney’s office is a privileged conversation and the attorney cannot discuss it with anyone else who is not affiliated with his own office. However, your girlfriend is not an attorney and she is not bound to secrecy. She does not have a duty to keep what was discussed in her presence a secret. As a result, if you ever have a fallout with her, she might discuss your private affairs with anyone she chooses to discuss them with and there will be nothing you can do about it. Hence, when you go to your attorney’s office, it is not always a good idea to bring someone with you. I realize that you may feel the need for mental support from a friend, but that defeats the purpose of the attorney-client privilege. Anyone else present in the attorney’s office, other than his staff, is not bound by that privilege.
Maxine de Villefranche is an attorney and civil general practitioner with 13 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 hired a contractor to turn my two-car garage into a three-car garage. The contractor collected a deposit of 10 percent plus a material deposit and the remainder of the contract was to be paid when the work was completed. After completion of the project by a sub-contractor, I paid the contractor the remainder of the contract price. The sub-contractor later informed me that he had not been paid by the contractor and that he was filing a mechanic’s lien on my house. Can he do that?
A. Not unless (1) the sub-contractor served you with a 2-day preliminary notice before he began work, or sometime during or immediately after his work was completed or (2) the sub-contractor had a direct contract with you. If a contractor (as opposed to a sub-contractor) has a direct contract with you, there is no 20-day preliminary notice requirement. The contractor is allowed to file a lien within 90 days of completion of the project and then has 90 days in which to foreclose on the lien, which can be done in small claims court.
Q. I went to a lawyer for a legal consultation and my girlfriend came with me. I discussed a family law matter with him. My girlfriend knows everything about my marital problems. The attorney warned me that although he was bound by the attorney-client privilege, my girlfriend was not. What did he mean by that?
A It means that anything that is discussed in an attorney’s office is a privileged conversation and the attorney cannot discuss it with anyone else who is not affiliated with his own office. However, your girlfriend is not an attorney and she is not bound to secrecy. She does not have a duty to keep what was discussed in her presence a secret. As a result, if you ever have a fallout with her, she might discuss your private affairs with anyone she chooses to discuss them with and there will be nothing you can do about it. Hence, when you go to your attorney’s office, it is not always a good idea to bring someone with you. I realize that you may feel the need for mental support from a friend, but that defeats the purpose of the attorney-client privilege. Anyone else present in the attorney’s office, other than his staff, is not bound by that privilege.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
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