Title: August 13, 2007
Q. I have a judgment against a customer who did not pay for my landscaping services. How do I get paid?
A. You need to get a lien on his/her real property. The mechanics of creating a lien are as follows: You need to obtain an Abstract of Judgment which reflects the amount and date of Judgment, name and address of creditor (you) as well as the name and address of debtor. The Abstract is issued by the judgment Court. This Abstract is then recorded with the County Recorder in the county where the debtor owns real property. Usually, the judgment lien will be satisfied from the sale proceeds when the property is sold, or refinanced. The lien is secured by the property. You are also entitled to statutory interest, presently 10% per annum. To create a lien against personal property, you need to file a Notice of Judgment lien with the Secretary of State where the debtor resides. Such lien includes information about the creditor and the debtor, the amount and date of judgment and court of issuance and amount of judgment, and the date that the notice was sent to the judgment debtor. Such lien can be used against accounts receivable, equipment, farm products, automobiles and trucks, RVs, etc. The lien will be satisfied when the property is sold. Most often, any property owned by the debtor transferred without satisfaction of the judgment is transferred subject to the lien. This means that if the lien is not satisfied prior to the transfer being made, the property remains subject to the lien in the hands of the transferee, i.e. the property can be taken away from the person who obtained it from the debtor.
Q. I want to incorporate my business. What is an “S” corporation as opposed to a “C” corporation?
A. S and C refer to how the corporation is taxed. An “S” corporation is an ordinary business corporation that has elected to be taxed under Subchapter C of the Internal Revenue Code. It is not taxed on its earnings as a corporation, but instead its earnings are passed through to its shareholders for tax purposes. It is limited to a certain number of shareholders and who may be a shareholder. It is also limited to one class of stock. Losses can be passed on to the investors, two levels of taxation can often be avoided, there is no accumulated earnings tax and there is limited liability protection. A “C” corporation is doubly taxed unless it qualifies and receives IRS approval to be taxed under an “S” corporation.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Showing posts with label property. Show all posts
Showing posts with label property. Show all posts
Tuesday, March 24, 2009
Monday, March 23, 2009
Legal Eaze #59 Damaged Driveway/Pet Bite/Trespassing
Title: November 22, 2006
Q. I hired someone to put decorative curbs at my house. He did the mixing, including a dye to the cement right on my driveway, which is now stained. When I complained to him about it, he first appeared to be responsive. He promised to come and clean it up, but he never showed up. I feel a lawsuit is in order, but he only has a cell phone number on his business card, and when I call him, he acts like he cannot hear me. That is always the end of the conversation. I do not have a physical address on him. What can I do?
A. I suggest you hire a private investigator to get an address behind the cell phone number you already have. You can include the cost of the private investigator as part of your damages in your lawsuit. If the curbs look the way you were expecting them to look, you damages would only be for the stained driveway. Get an estimate from another contractor and find out how much it would cost to clean the driveway.
Q. My son and his friend were playing in my backyard, and my dog nipped the friend. The bite broke the skin, but no stitches were required. What do I do now?
A. Pay for the doctor to look the wound over and to take care of it. As I am sure you know, you are liable for any damage inflicted by your dog to any guests coming onto your property. Be very apologetic with the child’s parents and offer to take care of any expenses associated with the incident. .
Q. We own a 12-acre piece of land with a cabin that we use on the weekend. It is entirely fenced and has “no trespassing” signs around it. Yet, people come and ride their dirt bikes on our land. We have called the police, but the motorcyclists are usually gone by the time the police get there. Howe can we stop them?
A. You can try to obtain the license number off the motorcycles in order to obtain the names and addresses of the offenders, and sue them for trespassing. If that does not work, and you are simply not there when the trespassing occurs, you can place spikes in strategic places on your land. A few flat tires later, they might learn their lesson. Of course, if one of them gets hurt when falling off his dirt bike because he has a flat tire, you might get sued for his personal injury. However since he is trespassing on your land, you would probably prevail.
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 hired someone to put decorative curbs at my house. He did the mixing, including a dye to the cement right on my driveway, which is now stained. When I complained to him about it, he first appeared to be responsive. He promised to come and clean it up, but he never showed up. I feel a lawsuit is in order, but he only has a cell phone number on his business card, and when I call him, he acts like he cannot hear me. That is always the end of the conversation. I do not have a physical address on him. What can I do?
A. I suggest you hire a private investigator to get an address behind the cell phone number you already have. You can include the cost of the private investigator as part of your damages in your lawsuit. If the curbs look the way you were expecting them to look, you damages would only be for the stained driveway. Get an estimate from another contractor and find out how much it would cost to clean the driveway.
Q. My son and his friend were playing in my backyard, and my dog nipped the friend. The bite broke the skin, but no stitches were required. What do I do now?
A. Pay for the doctor to look the wound over and to take care of it. As I am sure you know, you are liable for any damage inflicted by your dog to any guests coming onto your property. Be very apologetic with the child’s parents and offer to take care of any expenses associated with the incident. .
Q. We own a 12-acre piece of land with a cabin that we use on the weekend. It is entirely fenced and has “no trespassing” signs around it. Yet, people come and ride their dirt bikes on our land. We have called the police, but the motorcyclists are usually gone by the time the police get there. Howe can we stop them?
A. You can try to obtain the license number off the motorcycles in order to obtain the names and addresses of the offenders, and sue them for trespassing. If that does not work, and you are simply not there when the trespassing occurs, you can place spikes in strategic places on your land. A few flat tires later, they might learn their lesson. Of course, if one of them gets hurt when falling off his dirt bike because he has a flat tire, you might get sued for his personal injury. However since he is trespassing on your land, you would probably prevail.
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 #54 Loan Fraud
Title: September 15, 2006
Q. Last year (2005) a family friend came to my grandmother with a business venture. She told my grandmother that if she would let her use her property as collateral that when she sold the house she was buying that she would split the money with her. My grand mother signed a deed that put her name on the property that was being bought, and was told that some other papers she was signing were giving this friend permission to use the property as collateral. Well, the papers my grandmother actually signed were loan papers putting the loan in both their names. Now this family friend hasn't made any payments and the property in question has been sold because the title company said there were no loans on it. Needless to say my grandmother, who's 75, is now being sued by the title company, the loan company, in addition to the “friend” who lied to her to get the loan. What should I or what can I do to help my grandmother?
A. A lawsuit for fraud is the starting point, in the form of a cross-complaint to the suits brought against her, with motions to set aside any fraudulent deeds and loans, and consolidation of all complaints into one action. You have an uphill battle, but it has to be done. I would strongly suggest that you hire an attorney to handle this for your grandmother, as this is not something that a layperson can handle without the help of an attorney.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She will answer legal questions posed to her by the readers, to the best of her abilities. You may contact her via Fax at (661)825-8880 or by e-mail at maxinedev@msn.com
Q. Last year (2005) a family friend came to my grandmother with a business venture. She told my grandmother that if she would let her use her property as collateral that when she sold the house she was buying that she would split the money with her. My grand mother signed a deed that put her name on the property that was being bought, and was told that some other papers she was signing were giving this friend permission to use the property as collateral. Well, the papers my grandmother actually signed were loan papers putting the loan in both their names. Now this family friend hasn't made any payments and the property in question has been sold because the title company said there were no loans on it. Needless to say my grandmother, who's 75, is now being sued by the title company, the loan company, in addition to the “friend” who lied to her to get the loan. What should I or what can I do to help my grandmother?
A. A lawsuit for fraud is the starting point, in the form of a cross-complaint to the suits brought against her, with motions to set aside any fraudulent deeds and loans, and consolidation of all complaints into one action. You have an uphill battle, but it has to be done. I would strongly suggest that you hire an attorney to handle this for your grandmother, as this is not something that a layperson can handle without the help of an attorney.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She will answer legal questions posed to her by the readers, to the best of her abilities. You may contact her via Fax at (661)825-8880 or by e-mail at maxinedev@msn.com
Monday, March 16, 2009
Legal Eaze #39 Homestead Declaration, Cow Damage
Title: January 4, 2006
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 or fax them to (661)825-8880.
Q. What is a Homestead Declaration and why should we have one recorded with Kern County?
A. If you have a family residence in Kern County and your family resides in it, a Homestead Declaration will help reduce your property taxes because $7,500 will be deducted from the total assessed value of your property before the county assessor will estimate your yearly property taxes due. In addition, should you be sued by a creditor for a debt, $50,000 of your equity will be exempted from the creditor’s grasp if you are a single individual, $75,000 for a husband and wife, and $125,000 if you are over 65 years old. I advise anyone who owns a home to have a homestead declaration prepared and recorded with the county recorder, no matter whether you are single, married or a senior citizen. The Homestead Declaration is only applicable to your “residence”, not a vacation home or a rental.
Q. I am writing about the newspaper article in the Tehachapi news on December 28 regarding the cow that was hit by the people driving a 1997 Buick on the 58 going west. Who is responsible for the damage to their car?
A. Typically, the owner of the cow would be responsible. However, it is my understanding that the owner of the cow leases the land where he grazes his cows. Caltrans is not liable because it is not Caltrans’ job to put fences up to stop cattle from walking onto roadways. It is the property owner’s duty to ensure that the fencing around his property is strong enough to stop cattle from coming onto roadways. If the property owner leases the land to a cattle owner who plans to graze his cattle there, then it is the property owner’s duty to fence his property properly. If cattle escape from the leased land and cause damage to vehicles on the roadway, the property owner is liable for the damage. However, if the property owner has a contract that shifts liability for escaped cattle to the cattle owner and that clause also specifies that the cattle owner is responsible for building strong fencing that will contain cattle within the grazing land, then the cattle owner is liable for the damage(s) caused by any escaped cattle. However, if you happen to hit a deer and it causes a lot of damage to your vehicle, then it is your problem. A deer is not owned by anyone; it is a wild animal. The argument that the State of California is responsible for its wild animals will not hold.
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 or fax them to (661)825-8880.
Q. What is a Homestead Declaration and why should we have one recorded with Kern County?
A. If you have a family residence in Kern County and your family resides in it, a Homestead Declaration will help reduce your property taxes because $7,500 will be deducted from the total assessed value of your property before the county assessor will estimate your yearly property taxes due. In addition, should you be sued by a creditor for a debt, $50,000 of your equity will be exempted from the creditor’s grasp if you are a single individual, $75,000 for a husband and wife, and $125,000 if you are over 65 years old. I advise anyone who owns a home to have a homestead declaration prepared and recorded with the county recorder, no matter whether you are single, married or a senior citizen. The Homestead Declaration is only applicable to your “residence”, not a vacation home or a rental.
Q. I am writing about the newspaper article in the Tehachapi news on December 28 regarding the cow that was hit by the people driving a 1997 Buick on the 58 going west. Who is responsible for the damage to their car?
A. Typically, the owner of the cow would be responsible. However, it is my understanding that the owner of the cow leases the land where he grazes his cows. Caltrans is not liable because it is not Caltrans’ job to put fences up to stop cattle from walking onto roadways. It is the property owner’s duty to ensure that the fencing around his property is strong enough to stop cattle from coming onto roadways. If the property owner leases the land to a cattle owner who plans to graze his cattle there, then it is the property owner’s duty to fence his property properly. If cattle escape from the leased land and cause damage to vehicles on the roadway, the property owner is liable for the damage. However, if the property owner has a contract that shifts liability for escaped cattle to the cattle owner and that clause also specifies that the cattle owner is responsible for building strong fencing that will contain cattle within the grazing land, then the cattle owner is liable for the damage(s) caused by any escaped cattle. However, if you happen to hit a deer and it causes a lot of damage to your vehicle, then it is your problem. A deer is not owned by anyone; it is a wild animal. The argument that the State of California is responsible for its wild animals will not hold.
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