Title: February 22, 2006
Q. I helped my friend over the weekend to work on his car brakes. He gave me a six-pack of beer for helping him. My friend got in an accident and claimed his brakes failed. Am I responsible?
A. Unless you are a certified car mechanic and had a contract with your friend to fix the brakes, for which you got paid a six-pack of beer, you are not responsible for the accident.
Q. I have been sued by a collection agency trying to collect a credit card debt that is at least 10 years old, if not older. I did use the credit card but I lost my job and had no money to make the monthly payments. The debt grew and grew until it became totally unmanageable for me. Now, this collection agency wants triple what the debt was originally. What do I do?
A You need to answer the complaint by generally denying the complaint allegations. Then as an affirmative defense, you need to mention that the cause of action for breach of contract is barred by the statute of limitations as well as any other causes of action. This means that the debt is too old to be collected on. The statute of limitations on credit card debt is four years after your last payment or the last communication between the credit card and you.
Q. My mother died about one month ago. Of course, I contacted a funeral home for them to handle the cremation of my mother’s body. In order for my mother’s body to be cremated, they told me I had to purchase a casket. I was grieving and not in my right mind and I paid them almost $4,500 for a casket, but now that I think of it, why does a body need a casket to be cremated in? That makes no sense at all. I believe I was defrauded. What do you think?
A I agree. The Funeral Rule requires funeral providers to give you an accurate, itemized price list about funeral goods and services. To require the purchase of a casket for cremation is in direct violation of this rule, and this funeral provider will be subjected to a penalty up to $10,000 for this egregious act. You need to report this to the authorities and hire an attorney to file a lawsuit against the funeral provider. It is possible that you can write a letter and mention that you will file a lawsuit against the company unless they give you your money back for the violation if you want to avoid the time and aggravation associated with a lawsuit.
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.
Showing posts with label responsible. Show all posts
Showing posts with label responsible. Show all posts
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.
Sunday, January 4, 2009
Legal Eaze #16 Warranty Expired/ Bankruptcy
Originally Printed: February 9, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 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 purchased a new construction home in September 2002 with a one-year warranty. Six months ago, the ceramic floor tile begun to creak and pop out in several places. The builder said the installer will be contacted, but he may not be able to get to me for several months due to the building boom. Who would expect to have to replace tile after two years? The tear-up and replacement, if a similar tile can be found, will be expensive. Is the builder still responsible although the one-year warranty has expired?
A. You must give a chance to the installer (probably a subcontractor) to fix the tile floor and replace the broken and/or missing tiles himself. Get the name, address and telephone number of the installer from the builder and contact the installer yourself to make your complaint. And keep complaining until he finishes the job. Whether there is a construction boom or not, the installer should make good of his own work. It sounds like the installer failed to install a proper foundation for the tile work. The builder gives a one-year warranty and after that it is up to the installer to finish the job properly, not the builder.
Q. What is the difference between a Chapter 7 and a Chapter 13 Bankruptcy?
A. A Chapter 7 Bankruptcy is a liquidation of your assets, if any, and a Chapter 13 Bankruptcy is a reorganization of your debts. A trustee is involved in both chapters, but each has a different job. In a Chapter 7, the trustee will make sure there are no assets to distribute to the creditors before the debtor can get a discharge. In a Chapter 13, the trustee will get a monthly payment from the debtor and spread the money among all creditors, paying aback a percentage of the debt owed to each creditor. Despite the fact that a debtor can only file for Chapter 7 Bankruptcy every seven years, the same debtor could file a Chapter 13 within seven years from having filed a Chapter 7 Bankruptcy.
Maxine de Villefranche is an attorney and civil general practitioner with 12 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 purchased a new construction home in September 2002 with a one-year warranty. Six months ago, the ceramic floor tile begun to creak and pop out in several places. The builder said the installer will be contacted, but he may not be able to get to me for several months due to the building boom. Who would expect to have to replace tile after two years? The tear-up and replacement, if a similar tile can be found, will be expensive. Is the builder still responsible although the one-year warranty has expired?
A. You must give a chance to the installer (probably a subcontractor) to fix the tile floor and replace the broken and/or missing tiles himself. Get the name, address and telephone number of the installer from the builder and contact the installer yourself to make your complaint. And keep complaining until he finishes the job. Whether there is a construction boom or not, the installer should make good of his own work. It sounds like the installer failed to install a proper foundation for the tile work. The builder gives a one-year warranty and after that it is up to the installer to finish the job properly, not the builder.
Q. What is the difference between a Chapter 7 and a Chapter 13 Bankruptcy?
A. A Chapter 7 Bankruptcy is a liquidation of your assets, if any, and a Chapter 13 Bankruptcy is a reorganization of your debts. A trustee is involved in both chapters, but each has a different job. In a Chapter 7, the trustee will make sure there are no assets to distribute to the creditors before the debtor can get a discharge. In a Chapter 13, the trustee will get a monthly payment from the debtor and spread the money among all creditors, paying aback a percentage of the debt owed to each creditor. Despite the fact that a debtor can only file for Chapter 7 Bankruptcy every seven years, the same debtor could file a Chapter 13 within seven years from having filed a Chapter 7 Bankruptcy.
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