Title: June 15, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Our son resides with us. He is 22 years old and he suffers from schizophrenia. He has refused to take his medication on numerous occasions which is causing him to become aggressive, loud and obnoxious. He is a pretty big guy and my wife is sometimes fearful of him when she is alone with him in the house. He has never harmed her but sometimes I feel like it is only a matter of time before he does. I go to work every day and am away from our home from 7 a.m. through 7 p.m. five days a week. I don’t want my wife to feel like I am abandoning her and I don’t want her to be hurt by our son. What should we do?
A. You son need to be committed to a mental institution. What are you waiting for to do so? Are you waiting for your wife to be injured by your son? If your son refuses to take his medication, and that is the only thing that keeps him from acting out, then he is “an accident” waiting to happen. Until he realizes that taking his medication is what will keep him out of the hospital, he needs to be kept under control at all times. The medical staff at a hospital or a mental institution has the know-how to control a schizophrenic. You may also need to file a Petition for Conservatorship with the court in order to have the right to make medical decisions for your son. You may also need to manage his financial affairs, if he has any to manage, and becoming his conservator will give you that power.
Q. My credit card bills have become unmanageable. I am only working part-time now and I cannot keep a roof over my head and feed my family while continuing to pay for all our credit cards. My wife is eight months pregnant and cannot work anymore until she gives birth to our third child. What should I do?
A. File for bankruptcy, if you not done so already. I would advise you to hurry because the new bankruptcy laws will take effect in October 2005. Soon, it will be far more difficult for credit card debt to be discharged. In fact, many will be forced to file a Chapter 13, which entails repaying debt over time. Financial management classes will also be mandatory. The new bankruptcy laws will be disastrous for people who reached financial bottom through illness. Unfortunately, Congress members listed too closely to the credit card industry’s complaints. One can only expect that debtor’s prison will be reinstated next.
Showing posts with label debt. Show all posts
Showing posts with label debt. Show all posts
Friday, February 27, 2009
Monday, January 5, 2009
Legal Eaze #21 Pregnant/ Collections Agency
Originally Printed: May 4, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I am 16 years old and pregnant. My boyfriend is 18 years old. My parents like him and do not want to press charges against him. My parents and I are worried that the hospital staff at the hospital I go to when it is time to give birth will call the police on my boyfriend. Can the hospital staff do that? Or it is up to my parents?
A. My understanding of criminal law is that no one goes forward with a criminal filing unless there is a complaining victim. Mandated reporting is for child abuse only, not for impregnation of a minor, even if in violation of statutory rape laws. Please note that I am a “civil” general practitioner and only handle minor criminal matters. You would be best served by asking an attorney who handles criminal matters of all kinds.
Q. There is a man from a collection agency who keeps calling me with regards to an old debt dating back over 10 years ago. I have told him to leave me alone but he keeps bothering me at home. Somehow, he found out my boyfriend’s telephone number and he calls me there as well. It is legal for this collection agency to keep calling me like this?
A. I believe the Statute of Limitations on the debt may have expired. This collection agency can no longer collect on the debt. If you had a written contract with regards to this debt, the Statute of Limitations expired four years after you entered the contract, or four years after you made the last payment on the debt, whichever comes later. If you did not have a written contract, then two years is the applicable Statute of Limitations period. The collection agency may be liable for unfair debt collection practices and it would behoove you to take down the name, address and telephone number of this collection agency so that you can obtain court redress at a later date. It would be difficult for you to sue a collection agency if you do not know its name and contact information.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I am 16 years old and pregnant. My boyfriend is 18 years old. My parents like him and do not want to press charges against him. My parents and I are worried that the hospital staff at the hospital I go to when it is time to give birth will call the police on my boyfriend. Can the hospital staff do that? Or it is up to my parents?
A. My understanding of criminal law is that no one goes forward with a criminal filing unless there is a complaining victim. Mandated reporting is for child abuse only, not for impregnation of a minor, even if in violation of statutory rape laws. Please note that I am a “civil” general practitioner and only handle minor criminal matters. You would be best served by asking an attorney who handles criminal matters of all kinds.
Q. There is a man from a collection agency who keeps calling me with regards to an old debt dating back over 10 years ago. I have told him to leave me alone but he keeps bothering me at home. Somehow, he found out my boyfriend’s telephone number and he calls me there as well. It is legal for this collection agency to keep calling me like this?
A. I believe the Statute of Limitations on the debt may have expired. This collection agency can no longer collect on the debt. If you had a written contract with regards to this debt, the Statute of Limitations expired four years after you entered the contract, or four years after you made the last payment on the debt, whichever comes later. If you did not have a written contract, then two years is the applicable Statute of Limitations period. The collection agency may be liable for unfair debt collection practices and it would behoove you to take down the name, address and telephone number of this collection agency so that you can obtain court redress at a later date. It would be difficult for you to sue a collection agency if you do not know its name and contact information.
Wednesday, December 31, 2008
Legal Eaze #3 Divorce Reorganization of Debts
Originally Printed: July 23, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. Last year, I represented myself in a divorce action and I had to sell the house and other items in order to pay my wife her half of the community assets. I seems I was stuck with all the community debts. Now I am broke and cannot meet my financial obligations. What can I do?
A. It appears you did not get a fair deal in family law court. It may have been to your advantage if you had hired a lawyer to represent you. At this point, you may be forced to file for bankruptcy. If you are employed and get a regular paycheck, you may be able to file a Chapter 13, which is also known as “a reorganization of debts”. A trustee will oversee your estate and distribute portion of your income to all of your creditors. In such a case, you may keep all of your assets, or what is left of them and pay your creditors over a period of time, but not more than 60 months. Depending on the amount to be distributed, your creditors may or may not be fully paid. All of your secured creditors, i.e. those who hold collateral sufficient to support the debt, will be fully paid or at least to the extent of the value of the collateral. If you are making monthly payments on your car (often the car is worth less than the balance owed) you may be able to discharge the amount that is not secured, but if you want to keep the car, you must pay the “secured” balance. The unsecured creditors are those you may suffer. If you do not have a regular paycheck, the better alternative is to file a Chapter 7 Bankruptcy, or “straight (liquidation)” bankruptcy. A trustee will be appointed to review your assets, and if he/she finds some assets that are not exempt, these assets will be liquidated and the proceeds will be divided among your creditors. Everyone is entitled to exemptions when it comes to personal assets, such as furniture and furnishings, clothing, kitchen appliances, etc. These assets are exempt in different amounts, depending on which system of exemptions one uses, i.e. California Code of Procedure Sections 703 or 704. CCP Section 704 system is preferable to the 703 system if one has a house to protect. A single person owning a residence is entitled to keeping up to $50,000 in equity, a married couple is entitled to $75,000 in equity and a person over the age of 65 years old, $125,000. In order words, if you do not have this kind of equity in your home, you can keep it through the bankruptcy, as long as you keep making your mortgage payments. The same holds for your car. You are entitled to a certain amount of exemption, again depending on which system you use. Bankruptcy is meant to allow you a fresh new start and does not carry the stigma it once carried. Millions of people have taken advantage of bankruptcy laws, especially through difficult financial times experienced by the entire country.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. Last year, I represented myself in a divorce action and I had to sell the house and other items in order to pay my wife her half of the community assets. I seems I was stuck with all the community debts. Now I am broke and cannot meet my financial obligations. What can I do?
A. It appears you did not get a fair deal in family law court. It may have been to your advantage if you had hired a lawyer to represent you. At this point, you may be forced to file for bankruptcy. If you are employed and get a regular paycheck, you may be able to file a Chapter 13, which is also known as “a reorganization of debts”. A trustee will oversee your estate and distribute portion of your income to all of your creditors. In such a case, you may keep all of your assets, or what is left of them and pay your creditors over a period of time, but not more than 60 months. Depending on the amount to be distributed, your creditors may or may not be fully paid. All of your secured creditors, i.e. those who hold collateral sufficient to support the debt, will be fully paid or at least to the extent of the value of the collateral. If you are making monthly payments on your car (often the car is worth less than the balance owed) you may be able to discharge the amount that is not secured, but if you want to keep the car, you must pay the “secured” balance. The unsecured creditors are those you may suffer. If you do not have a regular paycheck, the better alternative is to file a Chapter 7 Bankruptcy, or “straight (liquidation)” bankruptcy. A trustee will be appointed to review your assets, and if he/she finds some assets that are not exempt, these assets will be liquidated and the proceeds will be divided among your creditors. Everyone is entitled to exemptions when it comes to personal assets, such as furniture and furnishings, clothing, kitchen appliances, etc. These assets are exempt in different amounts, depending on which system of exemptions one uses, i.e. California Code of Procedure Sections 703 or 704. CCP Section 704 system is preferable to the 703 system if one has a house to protect. A single person owning a residence is entitled to keeping up to $50,000 in equity, a married couple is entitled to $75,000 in equity and a person over the age of 65 years old, $125,000. In order words, if you do not have this kind of equity in your home, you can keep it through the bankruptcy, as long as you keep making your mortgage payments. The same holds for your car. You are entitled to a certain amount of exemption, again depending on which system you use. Bankruptcy is meant to allow you a fresh new start and does not carry the stigma it once carried. Millions of people have taken advantage of bankruptcy laws, especially through difficult financial times experienced by the entire country.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
Legal Ease #1 Unemployment/Child Support/Identity Theft
Originally Printed: June 23, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I am unemployed and cannot pay my rent. My landlord wants to kick me out of my apartment. What can I do?
A. Unfortunately, there is little you can do other than to find another job as quickly as possible. You may attempt to pacify your landlord by asking for his/her patience while you are seeking employment or get a loan from family or friends to pay for your rent. If you are served with a “Three-Day Notice to Vacate”, disregard the notice and wait until your landlord files an unlawful detainer action against you to get you out. But, you may be faced with a judgment for rent and damages, which may include attorney’s fees, not to mention the fact that your credit report will reflect this judgment..
Q. I have been paying child support to my ex-wife for several years. The child support award was based on my previous income. I only earn half of what I used to earn because I was injured and cannot work the same job anymore. How can I lower my child support?
A. A Motion to the Court to modify your child support amount must be made as soon as your circumstances change, otherwise you will be charged for arrearages in child support, in addition to interest at 10 percent per year on the arrearages. Judges are powerless in showing compassion in their orders and must follow the law. The modification will be retroactive to the date the motion was filed with the court. Time is of essence, and this motion must be made quickly.
Q. I have been victimized by identity theft and I don’t know how to stop a creditor from collecting on a debt that I did not incur. What can I do?
A. The first thing you must do is to write to the creditor and let him know that you dispute the debt. This letter should be sent via certified or registered mail. Then you must write to the three credit agencies, Equifax, Experian and Trans-Union and inform them of the dispute with the creditor. Lastly, but not the least, file a complaint with the police department of your community and make an ID Theft Complaint to the Federal Trade Commission (www.consumer.gov) The FTC maintains a database of identity theft cases used by law enforcement agencies. Filing a complaint also helps such agencies learn more about identity theft and the problems victims are having.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I am unemployed and cannot pay my rent. My landlord wants to kick me out of my apartment. What can I do?
A. Unfortunately, there is little you can do other than to find another job as quickly as possible. You may attempt to pacify your landlord by asking for his/her patience while you are seeking employment or get a loan from family or friends to pay for your rent. If you are served with a “Three-Day Notice to Vacate”, disregard the notice and wait until your landlord files an unlawful detainer action against you to get you out. But, you may be faced with a judgment for rent and damages, which may include attorney’s fees, not to mention the fact that your credit report will reflect this judgment..
Q. I have been paying child support to my ex-wife for several years. The child support award was based on my previous income. I only earn half of what I used to earn because I was injured and cannot work the same job anymore. How can I lower my child support?
A. A Motion to the Court to modify your child support amount must be made as soon as your circumstances change, otherwise you will be charged for arrearages in child support, in addition to interest at 10 percent per year on the arrearages. Judges are powerless in showing compassion in their orders and must follow the law. The modification will be retroactive to the date the motion was filed with the court. Time is of essence, and this motion must be made quickly.
Q. I have been victimized by identity theft and I don’t know how to stop a creditor from collecting on a debt that I did not incur. What can I do?
A. The first thing you must do is to write to the creditor and let him know that you dispute the debt. This letter should be sent via certified or registered mail. Then you must write to the three credit agencies, Equifax, Experian and Trans-Union and inform them of the dispute with the creditor. Lastly, but not the least, file a complaint with the police department of your community and make an ID Theft Complaint to the Federal Trade Commission (www.consumer.gov) The FTC maintains a database of identity theft cases used by law enforcement agencies. Filing a complaint also helps such agencies learn more about identity theft and the problems victims are having.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
Subscribe to:
Posts (Atom)