The State Bar of Texas as determined that the on-line kits that are being sold in Texas by outside companies located in California, Washington, Florida, New York, Colorado, etc. are not within their jurisdiction and cannot be stopped from selling their kits.
If you purchase an on-line kit, it is BUYER BEWARE!
Read the disclaimer.
The kits sold in office supply stores clearly state on the box "state forms are not included".
If the kit is "guaranteed" for 30 days, it takes 60 days for a Judge to grant a divorce in Texas. Therefore, if the judge denies the divorce, it is past the "guarantee" date.
The clerk that accepts your divorce petition is NOT an attorney and they are required by law to accept anything you submit. You could submit a blank piece of paper and they would have to accept it if you insisted.
I've not seen any kits that include the required Texas BVS form and the local county forms. Why? Because it would be impossible for them to prepare forms for every county in the US.
I don't see any kits that include powers of attorney to transfer titile to motor vehicles or the Wage Withholding Orders for Child Support. Why?
I don't know. But I include them in my kits -- why? Because I guarantee that if you tell me the truth, my kits will work!
If you waste your time and money, don't expect an attorney to fix this mess for you for free.
In summary, you get what you pay for!
Thứ Tư, 31 tháng 12, 2008
Why I charge for my services?
I went to law school and incurred student loans. I worked very hard. The bar exam was horrible. Basically, 4 years of my life was dedicated to getting my bar card.
What does an attorney sell? Their time, their opinion and their knowledge.
If you want it free, then go to law school and learn it for yourself.
What does an attorney sell? Their time, their opinion and their knowledge.
If you want it free, then go to law school and learn it for yourself.
Emancipation
In Texas we call it removal of disabilities.
Texas makes it very difficult to be emancipated. Why? Because at the age of 18, you are an adult.
Wh0 gets emancipated? Someone that needs to sign a legal contract like a singer or athlete.
You must be self supporting. A boyfriend or friend does not count. You have to prove that you are employed and that you have enough money to pay your own way without anyone else's help.
I've never done one -- in 17 years of practice. Why? Because it takes at least $2,500 and no one has ever come up with the money to do it.
The burden is on the child to prove that they are competent enough to be an adult.
Texas makes it very difficult to be emancipated. Why? Because at the age of 18, you are an adult.
Wh0 gets emancipated? Someone that needs to sign a legal contract like a singer or athlete.
You must be self supporting. A boyfriend or friend does not count. You have to prove that you are employed and that you have enough money to pay your own way without anyone else's help.
I've never done one -- in 17 years of practice. Why? Because it takes at least $2,500 and no one has ever come up with the money to do it.
The burden is on the child to prove that they are competent enough to be an adult.
TX common law marriage
Texas has common law marriage in limited situations:
1. You can spend one night together and be common law married.
Example: a friend lived with her bf for 10 years and they were never common law married because she did what I told her to do.
2. You can only be married to one person at a time. Example: If a man is married and lives with another woman for 10 years, he is NOT married to his live-in. Why? Because if he is still married, he can only be married to one woman.
3. If you are underage in Texas, you cannot be common law married.
4. If you have any questions, hire an attorney for one hour to go over the Texas statute with you.
1. You can spend one night together and be common law married.
Example: a friend lived with her bf for 10 years and they were never common law married because she did what I told her to do.
2. You can only be married to one person at a time. Example: If a man is married and lives with another woman for 10 years, he is NOT married to his live-in. Why? Because if he is still married, he can only be married to one woman.
3. If you are underage in Texas, you cannot be common law married.
4. If you have any questions, hire an attorney for one hour to go over the Texas statute with you.
Grandparent Rights
The US Supreme Court in a landmark case known as Troxel several years ago stated that it is a parent's right to determine how and if the grandparents can see their grandchild.
In order to gain visitation the grandparents must prove that the parents are not bad parents. This is a very hard burden to prove.
The courts feel that the grandparents raised their children. If those children (now the parents) don't want their children (the grandchildren) to see the grandparents, they must have a good reason for doing so.
Therefore, if you want to visit your grandchildren:
1. Raise responsible and good children
2. Be nice to your children
3. If your children are unreasonable, then do whatever it takes to visit your grandchildren.
In order to gain visitation the grandparents must prove that the parents are not bad parents. This is a very hard burden to prove.
The courts feel that the grandparents raised their children. If those children (now the parents) don't want their children (the grandchildren) to see the grandparents, they must have a good reason for doing so.
Therefore, if you want to visit your grandchildren:
1. Raise responsible and good children
2. Be nice to your children
3. If your children are unreasonable, then do whatever it takes to visit your grandchildren.
At what age can a child determine where they live?
The answer is: 18.
In Texas, at age 12 a child can sign a document letting the judge know their preference. However, this statement is NOT binding on the Judge.
In Texas, at age 12 a child can sign a document letting the judge know their preference. However, this statement is NOT binding on the Judge.
Jail Watch: Dallas Jail Inmate Corey Bailey's Death Under Increasing Scrutiny, Family Is Suing
Corey Bailey was 31 years old when he died, face down, on the floor of a cell in the Dallas County Jail this past June. No friends, no family, no last rites, alone on a cold floor, and we know he was scared - think about that.
Why?
So far, there's been an internal investigation - but none of the jail employees have been given leave, much less fired, for any wrongdoing - and the medical examiner's initial decision was that the cause of Bailey's death was "undetermined."
Sure doesn't sound like it's that hard to call ... and Bailey's family apparently thinks so, too, because they've sued.
Here's the backstory:
1. Corey Bailey was mentally ill, and suffering from paranoid delusions.
2. On June 27, 2008, Corey Bailey was to be moved from the Decker Jail to another facility.
3. Corey Bailey was mentally ill -- paranoid -- and scared of the guards - he confronted them, and they admit to spraying him with pepper spray.
4. Somehow, there's a gap in the story here (ahem), Corey Bailey is moved and he's placed face down in a new jail cell.
5. Twenty minutes later, according to the guards, they come to check on Corey Bailey and he's "nonresponsive." Read that, dead.
6. From the medical examiner, we know that Corey Bailey suffered from toxic effects of PCP, suffered from "excited delirium," and suffered from the "restraint by police officers," which together combined with "physiological stress associated with restraint" to kill him.
7. The autopsy report reveals that "traumatic asphyxia associated with restraint" may have contributed to Corey Bailey's death -- and that happens from choke holds or from pushing a knee into Corey's back (which would keep Corey from breathing).
Here's what the family attorney has pled in the lawsuit:
1. Corey Bailey was handcuffed at the wrists and ankles before anyone attempted to move him anywhere.
2. Six guards then dragged Corey Bailey down the hall by his pant legs and arms. That's right: SIX.
3. Corey Bailey was vomiting as they were doing this.
4. Corey Bailey spat at the nurse who was treating him for the pepper spray, and for an injury to his knee. (Before you get upset at this, put yourself in Corey's position. Ponder how you're feeling right about now, the fear and the anger .... add to that a delusion or two - maybe monsters are trying to kill you, or maybe aliens are trying to abduct you ... you're not in reality right now)
5. In response, a guard covered Corey Bailey's mouth with a plastic bag until a mask arrived (this is in the autopsy report).
6. Guards placed Corey in a cell, face down, and removed his cuffs (which we can assume means he was unconscious, right?)
Who Was Corey Bailey?
According to his brother Cedric, Corey was a church-going, hard-working guy who took care of his 10-year-old son. He had family who loved him.
According to medical records, Corey was a diagnosed mentally ill person, suffering from paranoid delusions.
According to autopsy records, Corey was a drug user because somehow, he had PCP in his system. (Isn't this curious???? ? Wonder when that PCP was put into Corey's body????? This PCP is just so darn convenient.)
Finally, according to jail records, Corey Bailey is the first inmate to die after an involvement with Dallas County jail guards since the jail was forced by court order to make "improvements" -- and these changes only happened after federal inspectors ruled that the Dallas County Jail was dangerous and indifferent to human suffering.
The Dallas County Jail was "dangerous and indifferent to human suffering."
When was that? Just 2 years back ... doesn't sound like much has changed, does it?
Meanwhile, the most sincerest of condolences to the family and friends of Corey Bailey, especially his ten year old son.
Source:
Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-bailey_27met.ART.State.Edition2.4a1e0d1.html
Why?
So far, there's been an internal investigation - but none of the jail employees have been given leave, much less fired, for any wrongdoing - and the medical examiner's initial decision was that the cause of Bailey's death was "undetermined."
Sure doesn't sound like it's that hard to call ... and Bailey's family apparently thinks so, too, because they've sued.
Here's the backstory:
1. Corey Bailey was mentally ill, and suffering from paranoid delusions.
2. On June 27, 2008, Corey Bailey was to be moved from the Decker Jail to another facility.
3. Corey Bailey was mentally ill -- paranoid -- and scared of the guards - he confronted them, and they admit to spraying him with pepper spray.
4. Somehow, there's a gap in the story here (ahem), Corey Bailey is moved and he's placed face down in a new jail cell.
5. Twenty minutes later, according to the guards, they come to check on Corey Bailey and he's "nonresponsive." Read that, dead.
6. From the medical examiner, we know that Corey Bailey suffered from toxic effects of PCP, suffered from "excited delirium," and suffered from the "restraint by police officers," which together combined with "physiological stress associated with restraint" to kill him.
7. The autopsy report reveals that "traumatic asphyxia associated with restraint" may have contributed to Corey Bailey's death -- and that happens from choke holds or from pushing a knee into Corey's back (which would keep Corey from breathing).
Here's what the family attorney has pled in the lawsuit:
1. Corey Bailey was handcuffed at the wrists and ankles before anyone attempted to move him anywhere.
2. Six guards then dragged Corey Bailey down the hall by his pant legs and arms. That's right: SIX.
3. Corey Bailey was vomiting as they were doing this.
4. Corey Bailey spat at the nurse who was treating him for the pepper spray, and for an injury to his knee. (Before you get upset at this, put yourself in Corey's position. Ponder how you're feeling right about now, the fear and the anger .... add to that a delusion or two - maybe monsters are trying to kill you, or maybe aliens are trying to abduct you ... you're not in reality right now)
5. In response, a guard covered Corey Bailey's mouth with a plastic bag until a mask arrived (this is in the autopsy report).
6. Guards placed Corey in a cell, face down, and removed his cuffs (which we can assume means he was unconscious, right?)
Who Was Corey Bailey?
According to his brother Cedric, Corey was a church-going, hard-working guy who took care of his 10-year-old son. He had family who loved him.
According to medical records, Corey was a diagnosed mentally ill person, suffering from paranoid delusions.
According to autopsy records, Corey was a drug user because somehow, he had PCP in his system. (Isn't this curious???? ? Wonder when that PCP was put into Corey's body????? This PCP is just so darn convenient.)
Finally, according to jail records, Corey Bailey is the first inmate to die after an involvement with Dallas County jail guards since the jail was forced by court order to make "improvements" -- and these changes only happened after federal inspectors ruled that the Dallas County Jail was dangerous and indifferent to human suffering.
The Dallas County Jail was "dangerous and indifferent to human suffering."
When was that? Just 2 years back ... doesn't sound like much has changed, does it?
Meanwhile, the most sincerest of condolences to the family and friends of Corey Bailey, especially his ten year old son.
Source:
Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-bailey_27met.ART.State.Edition2.4a1e0d1.html
San Antonio Real Estate Not As Robust As We Thought -- Bexar County Commercial Foreclosures Soar
By Creighton A. Welch - Express-News
The amount of commercial foreclosures in Bexar County spiked in 2008, with 56 percent more postings than in 2007.
To put that in perspective, residential foreclosures jumped 24 percent in 2008. Although only 557 — or 5 percent — of the 11,300 foreclosure listings for 2008 were commercial properties, in 2007 there were only 356 commercial filings, according to data from Foreclosure Listing Service, a company that tracks and reports foreclosure postings in North and Central Texas counties.
The rise in foreclosures signals a slowdown in the local commercial market, which boomed in recent years. Construction of new space has slowed, and vacancies have begun to rise.
Next year likely won't get much better for commercial real estate, either. “It's obviously a topic of conversation, and it's something we're all kind of looking at and concerned about,” said Kimberly Gatley, senior vice president and director of research with NAI REOC Partners, a San Antonio commercial real estate company. “The consensus is that we will see some foreclosure increase in 2009, but we don't expect an avalanche.”
Properties most susceptible to foreclosures are those that can't refinance, buildings that have lost a large tenant or new properties that have trouble finding tenants, said Ernest Brown, executive vice president and managing director of Grubb & Ellis Co. in San Antonio.
Though bad, the numbers don't mean the downfall of commercial real estate. “Thankfully, this does not mean that the commercial property market is in big trouble,” said George Roddy, president of Addison-based Foreclosure Listing Service. He said most of the postings involved smaller, older buildings often in less desirable locations.
By far the biggest increase in the amount of postings came in the undeveloped land sector, which increased 227 percent, from 26 in 2007 to 85 this year.
“With the tremendous level of real estate growth seen in the area over the last few years, developers and speculators naturally were in the acquisition mode,” Roddy said. “Today, however, it's very difficult to get approved for lending, especially for new development. So, although the 227 percent surprised me, I did expect to see a marginal gain.”
The numbers are even worse for land tracts larger than 501 acres and tracts between 21 and 50 acres, in which foreclosure postings increased 1,000 percent and 1,300 percent, respectively. Foreclosure filings dropped in just one type of land, Roddy said. Postings of smaller tracts of 2 to 5 acres dropped 33 percent.
The commercial foreclosure market is subject to a kind of domino effect. If consumers don't spend money, businesses can't pay landlords, who then can't pay off loans. If a company downsizes, it doesn't need its office space, and landlords are left with too much vacancy to pay debt.
“Depending on how long this recession lasts, it's going to start impacting the tenants first. And when the tenants start to default, the landlords are going to have to figure out what to do,” said Gatley, of NAI REOC Partners. “It is all dependent on their individual loan structures. I'm watching some of the smaller unanchored retail centers. Their ability to lease up has been quite a struggle.”
Retail foreclosure postings increased 55 percent, from 33 in 2007 to 51 this year, and that's an area that could continue to increase. “I expect to see more postings of retail centers and buildings over the next year due to the sagging economic conditions,” Roddy said.
The biggest group of foreclosure postings was “miscellaneous” buildings, which made up 62 percent of the commercial postings. The amount of postings increased 55 percent, from 222 in 2007 to 345 this year.
“Smaller companies and mom-and-pop retailers occupy much of this miscellaneous commercial space, and these businesses are among the first to feel the sting of today's changing economic climate,” Roddy said.
Office buildings, which made up just 5 percent of the foreclosure market, saw a 63 percent increase in postings, from 16 to 26. Apartments made up just 6 percent of all commercial postings, and the 33 postings this year were 27 percent more than in 2007. Industrial buildings were the only sector in which postings declined, dropping 48 percent from 33 in 2007 to 17 this year.
But the current environment doesn't yet compare with past real estate collapses. “It is significantly less than the late 1980s, no question,” said Brown, of Grubb & Ellis. “For the most part, in the 1980s it was a supply-side problem, but this time we didn't overbuild as much.”
When foreclosures rise, many owners try to unload their properties at discount prices. “We're not seeing any fire sales yet, which tells me that landlords are trying to weather the storm,” Gatley said.
The amount of commercial foreclosures in Bexar County spiked in 2008, with 56 percent more postings than in 2007.
To put that in perspective, residential foreclosures jumped 24 percent in 2008. Although only 557 — or 5 percent — of the 11,300 foreclosure listings for 2008 were commercial properties, in 2007 there were only 356 commercial filings, according to data from Foreclosure Listing Service, a company that tracks and reports foreclosure postings in North and Central Texas counties.
The rise in foreclosures signals a slowdown in the local commercial market, which boomed in recent years. Construction of new space has slowed, and vacancies have begun to rise.
Next year likely won't get much better for commercial real estate, either. “It's obviously a topic of conversation, and it's something we're all kind of looking at and concerned about,” said Kimberly Gatley, senior vice president and director of research with NAI REOC Partners, a San Antonio commercial real estate company. “The consensus is that we will see some foreclosure increase in 2009, but we don't expect an avalanche.”
Properties most susceptible to foreclosures are those that can't refinance, buildings that have lost a large tenant or new properties that have trouble finding tenants, said Ernest Brown, executive vice president and managing director of Grubb & Ellis Co. in San Antonio.
Though bad, the numbers don't mean the downfall of commercial real estate. “Thankfully, this does not mean that the commercial property market is in big trouble,” said George Roddy, president of Addison-based Foreclosure Listing Service. He said most of the postings involved smaller, older buildings often in less desirable locations.
By far the biggest increase in the amount of postings came in the undeveloped land sector, which increased 227 percent, from 26 in 2007 to 85 this year.
“With the tremendous level of real estate growth seen in the area over the last few years, developers and speculators naturally were in the acquisition mode,” Roddy said. “Today, however, it's very difficult to get approved for lending, especially for new development. So, although the 227 percent surprised me, I did expect to see a marginal gain.”
The numbers are even worse for land tracts larger than 501 acres and tracts between 21 and 50 acres, in which foreclosure postings increased 1,000 percent and 1,300 percent, respectively. Foreclosure filings dropped in just one type of land, Roddy said. Postings of smaller tracts of 2 to 5 acres dropped 33 percent.
The commercial foreclosure market is subject to a kind of domino effect. If consumers don't spend money, businesses can't pay landlords, who then can't pay off loans. If a company downsizes, it doesn't need its office space, and landlords are left with too much vacancy to pay debt.
“Depending on how long this recession lasts, it's going to start impacting the tenants first. And when the tenants start to default, the landlords are going to have to figure out what to do,” said Gatley, of NAI REOC Partners. “It is all dependent on their individual loan structures. I'm watching some of the smaller unanchored retail centers. Their ability to lease up has been quite a struggle.”
Retail foreclosure postings increased 55 percent, from 33 in 2007 to 51 this year, and that's an area that could continue to increase. “I expect to see more postings of retail centers and buildings over the next year due to the sagging economic conditions,” Roddy said.
The biggest group of foreclosure postings was “miscellaneous” buildings, which made up 62 percent of the commercial postings. The amount of postings increased 55 percent, from 222 in 2007 to 345 this year.
“Smaller companies and mom-and-pop retailers occupy much of this miscellaneous commercial space, and these businesses are among the first to feel the sting of today's changing economic climate,” Roddy said.
Office buildings, which made up just 5 percent of the foreclosure market, saw a 63 percent increase in postings, from 16 to 26. Apartments made up just 6 percent of all commercial postings, and the 33 postings this year were 27 percent more than in 2007. Industrial buildings were the only sector in which postings declined, dropping 48 percent from 33 in 2007 to 17 this year.
But the current environment doesn't yet compare with past real estate collapses. “It is significantly less than the late 1980s, no question,” said Brown, of Grubb & Ellis. “For the most part, in the 1980s it was a supply-side problem, but this time we didn't overbuild as much.”
When foreclosures rise, many owners try to unload their properties at discount prices. “We're not seeing any fire sales yet, which tells me that landlords are trying to weather the storm,” Gatley said.
Thứ Hai, 29 tháng 12, 2008
Easements by Prescription -- What Are They and How Are They Created?
An easement by prescription is an easement that arises from the continuous use of another's property without the landowner's consent. Prescription easements are created in a similar manner as title to land is acquired by adverse possession, and the requirements are similar.
The major differences between prescrptive easements an adverse possession is that adverse possession requires continuous possession of the property, while a prescriptive easement only requires continuous use. Also, unlike adverse possession, use of a prescroptive easement never matures into title to the property.
An easement by prescription rests on the claimant's adverse actions under a color of right. Mack v. Landry, 22 S.W.3d 524, 531 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Scott v.. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, pet. denied)). “A person acquires a prescriptive easement by the open, notorious, continuous, exclusive, and adverse use of someone else's land for ten years.” See id. (citing Brooks v. Jones, 578 S .W.2d 669, 673 (Tex.1979)). “The hostile and adverse character of the use necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession.” Id. (citing Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950)). In determining whether a claim is hostile, Courts consider “whether the adverse possessor's use, occupancy, and possession of the land is of such nature and character as to notify the true owner that the claimant is asserting a hostile claim to the land.” Id.
It has been said that 5 requirements or elements must be met to create a prescriptive easement, and the absence or failure of any one element is fatal. The elements are as follows:
1. use of the easement must begin and continue without the consent of the landowner.
2. use must be open, obvious and apparent
3. use must be exclusive
4. use must be in the same place or with indefinite lines; and
5. use must be continuous and un-interrupted for ten years.
If your property is landlocked by recent actions of a neighboring landowner, you may be entitled to judicial declaration that an easement by prescription exists. If faced with this situation, you should contact an experienced real estate attorney. Trey Wilson is an attorney in San Antonio, Texas, whose practice emphasizes real estate law, construction law, evictions, and water law. He may be reached at 210-223-4100 or www.sa-law.com
The major differences between prescrptive easements an adverse possession is that adverse possession requires continuous possession of the property, while a prescriptive easement only requires continuous use. Also, unlike adverse possession, use of a prescroptive easement never matures into title to the property.
An easement by prescription rests on the claimant's adverse actions under a color of right. Mack v. Landry, 22 S.W.3d 524, 531 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Scott v.. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, pet. denied)). “A person acquires a prescriptive easement by the open, notorious, continuous, exclusive, and adverse use of someone else's land for ten years.” See id. (citing Brooks v. Jones, 578 S .W.2d 669, 673 (Tex.1979)). “The hostile and adverse character of the use necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession.” Id. (citing Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950)). In determining whether a claim is hostile, Courts consider “whether the adverse possessor's use, occupancy, and possession of the land is of such nature and character as to notify the true owner that the claimant is asserting a hostile claim to the land.” Id.
It has been said that 5 requirements or elements must be met to create a prescriptive easement, and the absence or failure of any one element is fatal. The elements are as follows:
1. use of the easement must begin and continue without the consent of the landowner.
2. use must be open, obvious and apparent
3. use must be exclusive
4. use must be in the same place or with indefinite lines; and
5. use must be continuous and un-interrupted for ten years.
If your property is landlocked by recent actions of a neighboring landowner, you may be entitled to judicial declaration that an easement by prescription exists. If faced with this situation, you should contact an experienced real estate attorney. Trey Wilson is an attorney in San Antonio, Texas, whose practice emphasizes real estate law, construction law, evictions, and water law. He may be reached at 210-223-4100 or www.sa-law.com
What is a Qualified Domestic Relations Order, or QDRO?
A Qualified Domestic Relations Order (Acronym - QDRO and pronounced "Quad-Row") is a Court Order that splits up various types of retirement accounts. Federal law (ERISA) generally does not permit state court judges to require that the person who administers a retirement account (the "Plan Administrator") immediately pay retirement benefits out to a divorcing spouse, even though the accumulated benefits may be community property (in a community property state such as Texas). For this reason, the alternate payee is said to receive the benefits "if, as, and when" the retiree or employee receives the benefits. As a result, the QDRO will assign to an "alternate payee" (who is usually the divorcing spouse) the right to receive all or a portion of retirement plan benefits payable to a "participant" (or the employee). A QDRO can also sometimes be used to collect child support or spousal maintenance.
Media Watch: Dallas Morning News Changes Its 100 Yr. Stance on Death Penalty
Today, the Dallas Morning News changed its position on the death penalty, and after 100 years the newspaper no longer supports capital punishment. Wow.
The entirety of the editorial is worth the read, but here are some excerpts in case you don't have the time:
"The year draws to a close with Texas in its familiar No. 1 place nationally in capital punishment statistics (18 of the nation's 37 executions in 2008). It has also been a year rich with examples of why this state should stop its error-prone machinery of death. ...
"For a change, discussion about flawed justice need not start in Dallas County, the nation's ground zero for DNA exonerations. Just to the north, Collin County illustrates how even a highly educated, affluent community can get it wildly wrong in the high-stakes gamble called capital punishment. ...
"There is no quick or neat fix for breakdowns in justice that range from poor technology to dishonesty among officers of the court. Dozens of DNA exonerations across the state – including the nation-leading 19 in Dallas County – have demonstrated how unreliable eyewitness testimony can be. Further, statistics indicate a disturbing arbitrariness of capital punishment, varying greatly by county. Data also show that a killer is far likelier to die for killing a white person. ...
"It's the view of this newspaper that the justice system will never be foolproof and, therefore, use of the death penalty is never justified. ...."
Read the full editorial here:
Editorial: Death penalty moratorium needed
http://www.dallasnews.com/sharedcontent/dws/dn/opinion/editorials/stories/DN-death_29edi.State.Edition1.1eb1ec0.html
For some earlier posts on issues addressed in this editorial, see:
Crime News: Bernie Madoff Scandal Kills DNA Testing for Wrongfully Convicted
http://dallaslawyer.blogspot.com/2008/12/crime-news-bernie-madoff-scandal-kills.html
Judge Watch: Secret Love Affair Between Trial Judge and DA Stops Execution?
http://dallaslawyer.blogspot.com/2008/09/judge-watch-secret-love-affair-between.html
Crime News: Will DNA Tests Free Johnnie Lindsey on Friday?
http://dallaslawyer.blogspot.com/2008/09/crime-news-will-dna-tests-free-johnnie.html
The entirety of the editorial is worth the read, but here are some excerpts in case you don't have the time:
"The year draws to a close with Texas in its familiar No. 1 place nationally in capital punishment statistics (18 of the nation's 37 executions in 2008). It has also been a year rich with examples of why this state should stop its error-prone machinery of death. ...
"For a change, discussion about flawed justice need not start in Dallas County, the nation's ground zero for DNA exonerations. Just to the north, Collin County illustrates how even a highly educated, affluent community can get it wildly wrong in the high-stakes gamble called capital punishment. ...
"There is no quick or neat fix for breakdowns in justice that range from poor technology to dishonesty among officers of the court. Dozens of DNA exonerations across the state – including the nation-leading 19 in Dallas County – have demonstrated how unreliable eyewitness testimony can be. Further, statistics indicate a disturbing arbitrariness of capital punishment, varying greatly by county. Data also show that a killer is far likelier to die for killing a white person. ...
"It's the view of this newspaper that the justice system will never be foolproof and, therefore, use of the death penalty is never justified. ...."
Read the full editorial here:
Editorial: Death penalty moratorium needed
http://www.dallasnews.com/sharedcontent/dws/dn/opinion/editorials/stories/DN-death_29edi.State.Edition1.1eb1ec0.html
For some earlier posts on issues addressed in this editorial, see:
Crime News: Bernie Madoff Scandal Kills DNA Testing for Wrongfully Convicted
http://dallaslawyer.blogspot.com/2008/12/crime-news-bernie-madoff-scandal-kills.html
Judge Watch: Secret Love Affair Between Trial Judge and DA Stops Execution?
http://dallaslawyer.blogspot.com/2008/09/judge-watch-secret-love-affair-between.html
Crime News: Will DNA Tests Free Johnnie Lindsey on Friday?
http://dallaslawyer.blogspot.com/2008/09/crime-news-will-dna-tests-free-johnnie.html
San Antonio HOA Sells Disabled Couple's Home
From WOAI.com
Every day is a struggle for Dan and Elaine Lambert. Dan has a traumatic brain injury and is partially paralyzed. He was struck by a train while working for the railroad. Since the accident, he's had two strokes and four heart attacks. Elaine says she went for six or seven weeks with open sores on her legs. She suffers from a disease that causes painful sores and swelling in her legs and has bouts of severe depression.
With their belongings already packed after getting an eviction notice from the new owner, Dan and Elaine each take some of the blame. The couple says the HOA dues were simply not a priority as they dealt with getting through their illnesses. They say certified letters from the HOA's attorney went unopened or thrown out because they thought it was junk mail.
Still, they think the HOA has gone too far. "There's no way in hell this association should do this to retired people or disabled people," Dan told us.
Homeowners' association usually don't do sell homes of those who owe them money. Instead, if you don't pay your dues, the association slaps a lien on your house. That way you have to pay up before you can sell it.
Instead filing a lien and leaving it at that, the Heritage Hills HOA took the unusual step of foreclosing and selling the house. The Lambert's home sold at a public auction on the steps of the Bexar County Courthouse. The house valued at $156,000 sold for only $2,200. That is the amount the Lamberts owed after late fees, attorneys fees and interest were added.
Tom Newton is the HOA attorney who sold the Lambert's home. "I'm not kicking anybody out of their house," he explained to the Trouble Shooters. "What I'm doing is holding them to the obligation they accepted when they bought the property."
Trouble Shooter Brian Collister asked Newton, "[Do] you feel comfortable kicking a disabled family out of their home for a few hundred dollars in HOA fees?"
Newton replied, "I feel comfortable in taking those steps necessary to enforce my client's legal rights, and if that means that ultimately somebody may go through this foreclosure process, it's unfortunate, but it is a consequence of their own making." During all of this, no one with the HOA or its attorney ever picked up the phone and called or came to the Lambert's home. They never simply knocked on the door and tried to talk to them about why they were not paying their fees.
Collister asked Newton about this; "Don't you think if you're going to take their home away from them you should at least go talk to them face to face?"
"No, I don't," Newton answered, "I don't, and I'll tell you there are some people out there who have whatever sort of issues they have. They become violent when you approach them about their shortcomings or failure to abide by their obligations, and I think it is a dangerous situation."
The Lambert's say they're not dangerous or violent. They're just surprised that a homeowners association can go so far because they owe so little. The HOA says it sent the Lamberts certified letters during the three years they did not pay their dues, and they had plenty of opportunities to pay up and keep their house.
Wednesday, the Lamberts sit down with the HOA and the investment company that bought the house. They're going to try and come up with a way where the Lamberts can keep their home. We'll let you know what happens.
Every day is a struggle for Dan and Elaine Lambert. Dan has a traumatic brain injury and is partially paralyzed. He was struck by a train while working for the railroad. Since the accident, he's had two strokes and four heart attacks. Elaine says she went for six or seven weeks with open sores on her legs. She suffers from a disease that causes painful sores and swelling in her legs and has bouts of severe depression.
With their belongings already packed after getting an eviction notice from the new owner, Dan and Elaine each take some of the blame. The couple says the HOA dues were simply not a priority as they dealt with getting through their illnesses. They say certified letters from the HOA's attorney went unopened or thrown out because they thought it was junk mail.
Still, they think the HOA has gone too far. "There's no way in hell this association should do this to retired people or disabled people," Dan told us.
Homeowners' association usually don't do sell homes of those who owe them money. Instead, if you don't pay your dues, the association slaps a lien on your house. That way you have to pay up before you can sell it.
Instead filing a lien and leaving it at that, the Heritage Hills HOA took the unusual step of foreclosing and selling the house. The Lambert's home sold at a public auction on the steps of the Bexar County Courthouse. The house valued at $156,000 sold for only $2,200. That is the amount the Lamberts owed after late fees, attorneys fees and interest were added.
Tom Newton is the HOA attorney who sold the Lambert's home. "I'm not kicking anybody out of their house," he explained to the Trouble Shooters. "What I'm doing is holding them to the obligation they accepted when they bought the property."
Trouble Shooter Brian Collister asked Newton, "[Do] you feel comfortable kicking a disabled family out of their home for a few hundred dollars in HOA fees?"
Newton replied, "I feel comfortable in taking those steps necessary to enforce my client's legal rights, and if that means that ultimately somebody may go through this foreclosure process, it's unfortunate, but it is a consequence of their own making." During all of this, no one with the HOA or its attorney ever picked up the phone and called or came to the Lambert's home. They never simply knocked on the door and tried to talk to them about why they were not paying their fees.
Collister asked Newton about this; "Don't you think if you're going to take their home away from them you should at least go talk to them face to face?"
"No, I don't," Newton answered, "I don't, and I'll tell you there are some people out there who have whatever sort of issues they have. They become violent when you approach them about their shortcomings or failure to abide by their obligations, and I think it is a dangerous situation."
The Lambert's say they're not dangerous or violent. They're just surprised that a homeowners association can go so far because they owe so little. The HOA says it sent the Lamberts certified letters during the three years they did not pay their dues, and they had plenty of opportunities to pay up and keep their house.
Wednesday, the Lamberts sit down with the HOA and the investment company that bought the house. They're going to try and come up with a way where the Lamberts can keep their home. We'll let you know what happens.
West Oaks Estates HOA and Builder File Suit Against Non-Member Residents Seeking to Compel Them to Join HOA
On November 16, 2008, the West Oak Estates Homeowners Assocaition, Inc. ("HOA"), and McMillin Texas Development (a susidiary of McMillian Homes) filed at least 15 lawsuits in Bexar County District Court against families residing in Unit 2 of San Antonio's West Oak Estates subdivision. The suits, which are identical, were served upon the residents in the days immediately proceeding Thanksgiving -- putting a damper on the holiday spirits of may of the residents of the West Oak Estates subdivision. San Antonio attorney Trey Wilson has been retained to represent 12 of the families, and several others who were not sued, but who are similarly-situated to the Defendants. Wilson has represented homeowners associations and those individuals adverse to them in a variety of lawsuits.
The West Oak Estates HOA lawsuit arises from the fact that the Defendant households are not members of the homeowners association because they purchased their homes prior to the time that McMillin annexed Unit 2 into the Restrictive Covenants. That is, McMillin sold at least 19 homes in the subdivision BEFORE it recorded its Declaration of Covenants, Codes and Restrictions ("CCRs") with the Bexar County Clerk. "Because these homes were sold prior to the developer recording the CCRs (on May 26, 2006), these properties are not burdened by the CCRs, and my clients are neither bound by the CCRs or subject to mandatory membership in the HOA" said Wilson. "it is unfortuante that the HOA and builder have resorted to litigation, as these type of suits generally result in discord between neighbors and a loss of tranquility and goodwill among neighbors." In 2007 Wilson filed suit in Medina County, Texas against the developers of the Valentine Ranch subdivision on grounds that their property owners association was not formed or incorporated until after many of that development's residents purchased their properties and began payment of POA dues and assessments. The 2007 lawsuit was settled at mediation, and resulted in the issuance of Amended CCRs, a Supplemental Declaration, and several changes in the composition of the POA Board.
McMillin recognized its error as far back as July 2006, and began a campaign of letter writing and negotiations seeking to recruit the non-members to voluntarily join the West Oak Estates HOA. When these negotiations failed, it resorted to litigation, and filed suit seeking to have the Court declare that the non-members are subject to the CCRs and subject to mandatory HOA membership. Although the HOA is a named Plaintiff in the suit, the association remains under developer control, and 2of its 3 Board Directors are McMillin employees. The other Board member is a subdivision resident who was appointed by McMillin. The HOA has claimed in the lawsuit that it is a "beneficiary of the contract bewteen Defendants and McMillin."
Wilson maintains that, in addition to several defenses to the builder and HOA's lawsuit, the non-members maintain several affirmative claims against both the HOA and the builder arising from broken promises, breach of the CCRs, and illegal collection of dues and assessments from the non-members. "These claims will be addressed by way of the non-members' counterclaims against the Plaintiffs, and a third-party claim against the HOA's management company."
More to follow as the suit progresses...
The West Oak Estates HOA lawsuit arises from the fact that the Defendant households are not members of the homeowners association because they purchased their homes prior to the time that McMillin annexed Unit 2 into the Restrictive Covenants. That is, McMillin sold at least 19 homes in the subdivision BEFORE it recorded its Declaration of Covenants, Codes and Restrictions ("CCRs") with the Bexar County Clerk. "Because these homes were sold prior to the developer recording the CCRs (on May 26, 2006), these properties are not burdened by the CCRs, and my clients are neither bound by the CCRs or subject to mandatory membership in the HOA" said Wilson. "it is unfortuante that the HOA and builder have resorted to litigation, as these type of suits generally result in discord between neighbors and a loss of tranquility and goodwill among neighbors." In 2007 Wilson filed suit in Medina County, Texas against the developers of the Valentine Ranch subdivision on grounds that their property owners association was not formed or incorporated until after many of that development's residents purchased their properties and began payment of POA dues and assessments. The 2007 lawsuit was settled at mediation, and resulted in the issuance of Amended CCRs, a Supplemental Declaration, and several changes in the composition of the POA Board.
McMillin recognized its error as far back as July 2006, and began a campaign of letter writing and negotiations seeking to recruit the non-members to voluntarily join the West Oak Estates HOA. When these negotiations failed, it resorted to litigation, and filed suit seeking to have the Court declare that the non-members are subject to the CCRs and subject to mandatory HOA membership. Although the HOA is a named Plaintiff in the suit, the association remains under developer control, and 2of its 3 Board Directors are McMillin employees. The other Board member is a subdivision resident who was appointed by McMillin. The HOA has claimed in the lawsuit that it is a "beneficiary of the contract bewteen Defendants and McMillin."
Wilson maintains that, in addition to several defenses to the builder and HOA's lawsuit, the non-members maintain several affirmative claims against both the HOA and the builder arising from broken promises, breach of the CCRs, and illegal collection of dues and assessments from the non-members. "These claims will be addressed by way of the non-members' counterclaims against the Plaintiffs, and a third-party claim against the HOA's management company."
More to follow as the suit progresses...
Chủ Nhật, 28 tháng 12, 2008
Landlocked Property in Texas? An "Easement by Necessity" May Exist
Have you bought or inherited real property in Texas, only to find that the property is landlocked, with no legal access to a roadway? Obviously such a finding can be devastating, as even the greatest parcel is virtually useless if it cannot be accessed by vehicle. This devastation quickly translates to financial havoc, as landlocked property is often worth a tiny fraction of the property's value with access. But, before you abandon all hope, you should consult with an experienced real estate lawyer to determine whether an "easement by necessity" or other right of access may be established through operation of various legal doctrines. You may be pleasantly surprised to find that Texas Courts frown upon landlocked property.
An easement is defined as “a right of use over the property of another.” Black's Law Dictionary 527 (7th ed.1999). Easements are common tools for both public and private parties, and touch each of our daily lives in less-than-exciting, but important ways. Utility service is brought to your home and workplace through use of easements, and many times government employees (including first responders such as Police, Fire and EMS) utilize easements in their public service. In fact, many cities and utility companies have an entire staff of employees dedicated to obtaining and managing easements. Thus, easements are an invisible but essential element of daily life in Texas.
Easements may be generally thought of as a grant of a "right to use" (or "license to use") certain property of another for a certain reason. Easements may be created in many ways, both consentual and involuntary, as well as express and implied. Further, easements are not absolute. “Every easement carries with it the right to do whatever is reasonably necessary for full enjoyment of the rights granted.” Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex.App.-Houston [1st Dist.] 1994, writ denied). In determining the scope of an easement, Courts "may imply only those rights reasonably necessary to the fair enjoyment of the easement with as little burden as possible to the servient owner.” Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ denied) (citing Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974)).
Where landlocked property is concerned, Texas law governing "easements by necessity" are most often implicated (though there are other types of easements and dedications that should also be explored). This is because the landowner seeking an easement by necessity over a servient estate must show the necessity of that easement in accessing his property. Scott v. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, writ denied); see also Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984).
For an easement to be necessary, the property must be landlocked.
A party claiming an easement by necessity bears the burden of proving all the elements necessary to establish the easement. Crone v. Brumley, 219 S.W.3d 65, 68 (Tex.App.-San Antonio 2007, pet. denied) (citing Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 640 (1958) and Bains, 182 S.W.2d at 399)). The elements are:
(1) unity of ownership prior to separation;
(2) access as a necessity and not a mere convenience; and,
(3) necessity existing at the time of the severance.
Koonce, 663 S.W.2d at 452 (citing Duff, 311 S.W.2d at 641).
Additionally, it should be noted that easements by necessity are temporary because their existence is dependent on the necessity that created them. Therefore, they terminate upon the cessation of the necessity.
Once the location of a way of necessity is established, its location may be changed only with the expressed or implied consent of both parties. Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex.App.-El Paso 1993, no writ); Meredith v. Eddy, 616 S.W.2d 235, 240 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ).
Many times individuals facing landlocked situations by trespassing on another's land to gain entry, or by obtaining a temporary access agreement from another landowner. Such practices are not fatal to proving an "easement by necessity" as “an easement by necessity is not defeated by proof that the party seeking the easement has ‘a mere license to use a way across the land’ of another.” Crone v. Brumley, 219 S.W.3d 65, 68 (Tex.App.-San Antonio 2006, pet. denied). However, the party seeking to establish an easement by necessity must prove he has no other legal access to his property. Id.
The party seeking to establish an easement by necessity also must prove that the necessity existed at the time the estates were severed. See Koonce, 663 S.W.2d at 452(an element necessary to establish an implied easement by necessity is that the necessity must exist at the time of severance of the two estates); Perkins v. Krauter Family P'ship, Ltd., No. 04-03-00166-CV, 2004 WL 2097516, at *1 (Tex.App.-San Antonio Sept.22, 2004, no pet.) (mem. op., not designated for publication) (holding same as to an implied easement appurtenant); Daniel v. Fox, 917 S.W.2d 106, 110 (Tex.App.-San Antonio 1996, writ denied) (holding same as to an easement by implication).
The means and evidence necssary to prove each of the elements of easement by necessity are often complex, and hyper-technical. Texas landowners facing landlocked property situations are urged to immediately seek the counsel of an experienced real estate attorney. Such an attorney can advise upon the facts of your particular circumstance, assist you in exploring claims against the Seller of the landlocked property, as well as any title companies or other professionals associated with your acquisition of the landlocked property.
Trey wilson is an attorney and real estate agent in San Antonio, Texas. In September 2008 Scene in SA Magazine named him one of San Antonio's Best Real Estate Litigation Attorneys. He may be reached at 210-223-4100 or www.sa-law.com
An easement is defined as “a right of use over the property of another.” Black's Law Dictionary 527 (7th ed.1999). Easements are common tools for both public and private parties, and touch each of our daily lives in less-than-exciting, but important ways. Utility service is brought to your home and workplace through use of easements, and many times government employees (including first responders such as Police, Fire and EMS) utilize easements in their public service. In fact, many cities and utility companies have an entire staff of employees dedicated to obtaining and managing easements. Thus, easements are an invisible but essential element of daily life in Texas.
Easements may be generally thought of as a grant of a "right to use" (or "license to use") certain property of another for a certain reason. Easements may be created in many ways, both consentual and involuntary, as well as express and implied. Further, easements are not absolute. “Every easement carries with it the right to do whatever is reasonably necessary for full enjoyment of the rights granted.” Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex.App.-Houston [1st Dist.] 1994, writ denied). In determining the scope of an easement, Courts "may imply only those rights reasonably necessary to the fair enjoyment of the easement with as little burden as possible to the servient owner.” Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ denied) (citing Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974)).
Where landlocked property is concerned, Texas law governing "easements by necessity" are most often implicated (though there are other types of easements and dedications that should also be explored). This is because the landowner seeking an easement by necessity over a servient estate must show the necessity of that easement in accessing his property. Scott v. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, writ denied); see also Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984).
For an easement to be necessary, the property must be landlocked.
A party claiming an easement by necessity bears the burden of proving all the elements necessary to establish the easement. Crone v. Brumley, 219 S.W.3d 65, 68 (Tex.App.-San Antonio 2007, pet. denied) (citing Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 640 (1958) and Bains, 182 S.W.2d at 399)). The elements are:
(1) unity of ownership prior to separation;
(2) access as a necessity and not a mere convenience; and,
(3) necessity existing at the time of the severance.
Koonce, 663 S.W.2d at 452 (citing Duff, 311 S.W.2d at 641).
Additionally, it should be noted that easements by necessity are temporary because their existence is dependent on the necessity that created them. Therefore, they terminate upon the cessation of the necessity.
Once the location of a way of necessity is established, its location may be changed only with the expressed or implied consent of both parties. Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex.App.-El Paso 1993, no writ); Meredith v. Eddy, 616 S.W.2d 235, 240 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ).
Many times individuals facing landlocked situations by trespassing on another's land to gain entry, or by obtaining a temporary access agreement from another landowner. Such practices are not fatal to proving an "easement by necessity" as “an easement by necessity is not defeated by proof that the party seeking the easement has ‘a mere license to use a way across the land’ of another.” Crone v. Brumley, 219 S.W.3d 65, 68 (Tex.App.-San Antonio 2006, pet. denied). However, the party seeking to establish an easement by necessity must prove he has no other legal access to his property. Id.
The party seeking to establish an easement by necessity also must prove that the necessity existed at the time the estates were severed. See Koonce, 663 S.W.2d at 452(an element necessary to establish an implied easement by necessity is that the necessity must exist at the time of severance of the two estates); Perkins v. Krauter Family P'ship, Ltd., No. 04-03-00166-CV, 2004 WL 2097516, at *1 (Tex.App.-San Antonio Sept.22, 2004, no pet.) (mem. op., not designated for publication) (holding same as to an implied easement appurtenant); Daniel v. Fox, 917 S.W.2d 106, 110 (Tex.App.-San Antonio 1996, writ denied) (holding same as to an easement by implication).
The means and evidence necssary to prove each of the elements of easement by necessity are often complex, and hyper-technical. Texas landowners facing landlocked property situations are urged to immediately seek the counsel of an experienced real estate attorney. Such an attorney can advise upon the facts of your particular circumstance, assist you in exploring claims against the Seller of the landlocked property, as well as any title companies or other professionals associated with your acquisition of the landlocked property.
Trey wilson is an attorney and real estate agent in San Antonio, Texas. In September 2008 Scene in SA Magazine named him one of San Antonio's Best Real Estate Litigation Attorneys. He may be reached at 210-223-4100 or www.sa-law.com
San Antonio Homeowners Association Threatens Foreclosure of Military Couple Stationed Overseas from WOAI.com
A San Antonio couple, serving in the military overseas, almost loses their home. Not because they failed to make their mortgage payments, but because they were behind on their homeowners association fees. This military couple was fighting a losing battle, so they asked News 4 Trouble Shooter Jaie Avila for help.
David and Melody Gates admit they fell behind on their homeowners association fees when Melody got sick, but they say when they tried to pay what they owed, the association and its attorney kept sending their checks back and piling on more fees. The couple is stationed at an air force base in Germany.
The Gates say since late last year, they have sent three separate checks to the Westover Crossing Homeowners Association to pay off all the dues they owe for their home. But each time, the checks were returned, because by the time they arrived in the mail, more late fees, and attorneys fees had been added to the total. The attorney for the association refused to accept partial payment.
"Every time they mail it back to me, they tell me I owe them more money," says Melody Gates. "They tell me that I owe them late fees and I also, on top of that, I owe them attorney fees. And I don't understand why a company, knowing that we're so far away, is being so unjust to us."
After six months of this, the Gates' bill grew from $1,100 to more than $1,800.
The homeowners association filed a lien against their home and was threatening foreclosure. So the desperate couple e-mailed the Trouble Shooters.
"I reached out to you, because I don't know what else to do," says Gates. "We have tried very hard to make this bill paid in full."
The Trouble Shooters contacted Spectrum Management, which runs the Westover Crossing Homeowners Association, and its attorney, Tom Newton, Jr., the man who has been sending the Gates' all those intimidating letters. Newton wouldn't comment, but this isn't the first time the Trouble Shooters have come across attorney, Tom Newton.
Last year, Newton, who was working for another homeowners association, foreclosed on an elderly disabled couple, Dan and Elaine lambert, because they hadn't paid $380 in HOA fees. At the time he said he felt justified in foreclosing on struggling homeowners who are only a few hundred dollars behind on their HOA dues.
"I feel comfortable in taking those steps necessary to enforce my client's legal rights," said Newton at the time. "And if that means that ultimately somebody may go through this foreclosure process, it is unfortunate. But it is a consequence of their own making."
Although, he wouldn't talk to us, a few days after we contacted Newton, he and the Westover Crossing Homeowners Association agreed to stop tacking on fees and settled the dispute with the gates for $1,300. Almost $600 less than they had been demanding.
If you fall behind on your HOA fees, they can legally do the same thing to you. Be sure to read your deed restrictions which should explain what kind of notice they have to give you before trying to foreclose. And get them to agree to a re-payment plan in writing, to avoid unexpected fees.
If you feel that you are being harassed or treated unfairly by a Homeowners Association (HOA), contact San Antonio attorney Trey Wilson. Mr. Wilson is an experienced real estate lawyer who routinely represents both individuals under seige by their HOAs, and HOAs with claims agaisnt developers/builders. Trey Wilson was named by Scene in SA Magazine as one of San Antonio's Best real Estate Litigation Attorneys. He may be reached at 210-223-4100 or www.sa-law.com
David and Melody Gates admit they fell behind on their homeowners association fees when Melody got sick, but they say when they tried to pay what they owed, the association and its attorney kept sending their checks back and piling on more fees. The couple is stationed at an air force base in Germany.
The Gates say since late last year, they have sent three separate checks to the Westover Crossing Homeowners Association to pay off all the dues they owe for their home. But each time, the checks were returned, because by the time they arrived in the mail, more late fees, and attorneys fees had been added to the total. The attorney for the association refused to accept partial payment.
"Every time they mail it back to me, they tell me I owe them more money," says Melody Gates. "They tell me that I owe them late fees and I also, on top of that, I owe them attorney fees. And I don't understand why a company, knowing that we're so far away, is being so unjust to us."
After six months of this, the Gates' bill grew from $1,100 to more than $1,800.
The homeowners association filed a lien against their home and was threatening foreclosure. So the desperate couple e-mailed the Trouble Shooters.
"I reached out to you, because I don't know what else to do," says Gates. "We have tried very hard to make this bill paid in full."
The Trouble Shooters contacted Spectrum Management, which runs the Westover Crossing Homeowners Association, and its attorney, Tom Newton, Jr., the man who has been sending the Gates' all those intimidating letters. Newton wouldn't comment, but this isn't the first time the Trouble Shooters have come across attorney, Tom Newton.
Last year, Newton, who was working for another homeowners association, foreclosed on an elderly disabled couple, Dan and Elaine lambert, because they hadn't paid $380 in HOA fees. At the time he said he felt justified in foreclosing on struggling homeowners who are only a few hundred dollars behind on their HOA dues.
"I feel comfortable in taking those steps necessary to enforce my client's legal rights," said Newton at the time. "And if that means that ultimately somebody may go through this foreclosure process, it is unfortunate. But it is a consequence of their own making."
Although, he wouldn't talk to us, a few days after we contacted Newton, he and the Westover Crossing Homeowners Association agreed to stop tacking on fees and settled the dispute with the gates for $1,300. Almost $600 less than they had been demanding.
If you fall behind on your HOA fees, they can legally do the same thing to you. Be sure to read your deed restrictions which should explain what kind of notice they have to give you before trying to foreclose. And get them to agree to a re-payment plan in writing, to avoid unexpected fees.
If you feel that you are being harassed or treated unfairly by a Homeowners Association (HOA), contact San Antonio attorney Trey Wilson. Mr. Wilson is an experienced real estate lawyer who routinely represents both individuals under seige by their HOAs, and HOAs with claims agaisnt developers/builders. Trey Wilson was named by Scene in SA Magazine as one of San Antonio's Best real Estate Litigation Attorneys. He may be reached at 210-223-4100 or www.sa-law.com
11 Face Justice in Mortgage Fraud Scheme -- San Antonio Real Estate Investment Fraud
On a one-block street in Northwest San Antonio, five properties all fell into foreclosure in 2003. When federal investigators began poking around, they tied the properties on Meadow Field near Grissom Road to an Austin-based house-flipping ring.
Eleven members of that 16-person ring -- which includes three real estate agents, an attorney, a mortgage broker and a former Wells Fargo bank officer -- are set to be sentenced today in U.S. District Court in Austin after being found guilty of wire fraud, money laundering and falsifying information on loan documents as part of this scam that hit Austin and that San Antonio neighborhood.
The Austin ring is part of a swelling wave of mortgage fraud that isn't expected to crest until late next year. Texas is among the top 10 states for mortgage abuses, and San Antonio is involved in three such scams so far this year, the Austin case and two San Antonio-based rings under investigation by the Federal Bureau of Investigation. The San Antonio rings used more than 50 people to inflate prices in Stone Oak, Spring Branch and Dallas.
FBI special agents investigating the cases have said that arrests would happen soon this summer. “Typically what happens is incidents are not identified until months after the loans were originated, so many (federal) agencies are just closing cases from 2000 and 2001,” said Tom Chmielewski, vice president of products and strategy at ChoicePoint which owns the Mortgage Asset Research Institute. “I expect the fraud to be at elevated levels for the next couple of years.”
The increased fraud activity has its roots in the housing boom and the popularity of no-documentation loans -- loans where information entered about the background and finances of buyers were not verified. “A lot of it popped up in the last four to five years particularly with no-doc, low-doc loans because nobody was verifying anything,” said Jim Gaines, a research economist at the Real Estate Center at Texas A&M University.
Nationwide, financial institutions reported 46,717 cases of suspicious activity in mortgage lending in fiscal 2007, according to the FBI. That's a 31 percent increase from fiscal 2006, when lenders began to loosen lending guidelines, and a 574 percent increase since fiscal 2003, when the housing boom started to take off. Most of the cases are in Texas, California, Colorado, Florida, Georgia, Illinois, Michigan, Minnesota, New York and Ohio, according to the FBI's 2008 mortgage fraud report. One study by mortgage insurer Radian Group found that 10.5 percent of all mortgages it had insured in Texas in 2007 showed signs of “misrepresentation,” according to Rick Gillespie, Radian senior vice president.
The cases typically feature an appraiser who agrees to provide inflated appraisals for a kickback, and “straw buyers” -- people who rent out their personal information to another person for the purchase of a house with the understanding that home will be sold in a quick flip to another buyer after a few months.
According to the indictment in the case of the Austin-based fraud ring, Austin resident Cornelius Robinson created a company named Billionaires Boys Club Investments Inc. (BBC) and then recruited his wife and former real estate agent Silvia Seelig, Austin lawyer George H. Watson, former Wells Fargo personal banker Doris Ann Hill, and Robinson's uncle and friends to help buy 25 properties using fraudulent practices.
The team falsified addresses and telephone numbers for straw buyers, as well as rental histories, employment histories and bank deposits, according to the indictment. In San Antonio, BBC bought five fourplexes on Meadow Field on Aug. 14, 2001, for $100,000 each and then sold them during the same month to an “unindicted co-conspirator” for $157,000 each. The second buyer sold four of the properties about eight months later to another “unindicted co-conspirator” for $167,000. At some point, the mortgage payments no longer were being paid and lenders foreclosed on all five properties in 2003, according to the court record.
When so many foreclosures happen close together, it can hurt home prices.
Within San Antonio's Great Northwest area, where the Meadow Field properties are located, the median price dropped 2.4 percent in 2004, the year after the five properties were foreclosed, according to the San Antonio Board of Realtors.
In January 2008, 16 people were indicted for having participated in BBC's mortgage scams. Seelig, Watson, Hill and eight other defendants pleaded guilty to charges related to wire fraud, money laundering and making false statements on loans and will be sentenced today.
Robinson went to trial and was convicted of five counts of wire fraud, seven counts of money laundering and nine counts of making false statements on loans, according to the U.S. Attorney's Office. His case is set for sentencing on June 20.
In the two ongoing local investigations, FBI special agent David Rawlings who is leading the investigation, says 54 people committed mortgage fraud to buy 112 houses in Stone Oak, Spring Branch and Dallas.
Because the investigation is ongoing, Rawlings would not give many details about the cases. But he did say that in some instances, the straw buyers bought and flipped homes with the help of two San Antonio-based mortgage brokers. In other cases, a buyer purchased a new home at a discount, but got the builder to falsify the mortgage documents by saying the house was sold for a higher price than it was. After the inflated loan closed, the buyer paid the builder a kickback.
Rawlings explained that in San Antonio, several of the cases involved new construction. San Antonio overbuilt homes in 2006 and 2007, and for the past two years, builders have started fewer houses in an effort to sell off their existing inventory. Such scenarios can create a climate ripe for fraud, Rawlings said. “Where there's newer construction, you have a lot of desperate sellers and builders,” Rawlings said. “The losses have been up to $400,000 and $500,000 on some million-dollar homes.”
Such fraud techniques are not exclusive to Texas. One of the largest publicized cases this year happened in Chicago, where lenders lost an estimated $25 million on more than 150 properties after loan officers, processors, a CPA, a real estate agent and developers falsified employment, assets and rental history for straw buyers.
Real estate and foreclosure experts say the frenzy of the housing boom created the atmosphere where such widespread fraud could flourish. The fraud mushroomed as lenders faced rising pressure to increase sales. “I've talked with loan officers who routinely said they'd deny a loan and their bosses would come back and say, ‘Approve it,'” said Rick Sharga, vice president of marketing at RealtyTrac Inc. that monitors foreclosure activity. “When the loan officer said, ‘The loan doesn't fit our lending standards,' (then) the supervisor would say, ‘That's OK. Somebody will buy it.'”
From the SA Express News.
San Antonio Attorney Trey Wilson handles real estate fraud lawsuits, including suits involving real estate investors. As reported by Scene in SA Magazine, Wilson was recently voted by his peers as one of San Antonio's Best Real Estate Litigation Attorneys. He handles a variety of real estate claims and lawsuits, including fraud claims related to residential and commercial properties. As a licensed real estate Agent, Trey Wilson is a San Antonio lawyer who is uniquely attuned to real estate transactions and the duties of the parties to such transactions. He routinely represents Out-of-State investors who have invested in texas real estate. Trey Wilson is the principal of R L Wilson, P.C. Law Firm. he may be reached at 210-223-4100 or www.sa-law.com
Eleven members of that 16-person ring -- which includes three real estate agents, an attorney, a mortgage broker and a former Wells Fargo bank officer -- are set to be sentenced today in U.S. District Court in Austin after being found guilty of wire fraud, money laundering and falsifying information on loan documents as part of this scam that hit Austin and that San Antonio neighborhood.
The Austin ring is part of a swelling wave of mortgage fraud that isn't expected to crest until late next year. Texas is among the top 10 states for mortgage abuses, and San Antonio is involved in three such scams so far this year, the Austin case and two San Antonio-based rings under investigation by the Federal Bureau of Investigation. The San Antonio rings used more than 50 people to inflate prices in Stone Oak, Spring Branch and Dallas.
FBI special agents investigating the cases have said that arrests would happen soon this summer. “Typically what happens is incidents are not identified until months after the loans were originated, so many (federal) agencies are just closing cases from 2000 and 2001,” said Tom Chmielewski, vice president of products and strategy at ChoicePoint which owns the Mortgage Asset Research Institute. “I expect the fraud to be at elevated levels for the next couple of years.”
The increased fraud activity has its roots in the housing boom and the popularity of no-documentation loans -- loans where information entered about the background and finances of buyers were not verified. “A lot of it popped up in the last four to five years particularly with no-doc, low-doc loans because nobody was verifying anything,” said Jim Gaines, a research economist at the Real Estate Center at Texas A&M University.
Nationwide, financial institutions reported 46,717 cases of suspicious activity in mortgage lending in fiscal 2007, according to the FBI. That's a 31 percent increase from fiscal 2006, when lenders began to loosen lending guidelines, and a 574 percent increase since fiscal 2003, when the housing boom started to take off. Most of the cases are in Texas, California, Colorado, Florida, Georgia, Illinois, Michigan, Minnesota, New York and Ohio, according to the FBI's 2008 mortgage fraud report. One study by mortgage insurer Radian Group found that 10.5 percent of all mortgages it had insured in Texas in 2007 showed signs of “misrepresentation,” according to Rick Gillespie, Radian senior vice president.
The cases typically feature an appraiser who agrees to provide inflated appraisals for a kickback, and “straw buyers” -- people who rent out their personal information to another person for the purchase of a house with the understanding that home will be sold in a quick flip to another buyer after a few months.
According to the indictment in the case of the Austin-based fraud ring, Austin resident Cornelius Robinson created a company named Billionaires Boys Club Investments Inc. (BBC) and then recruited his wife and former real estate agent Silvia Seelig, Austin lawyer George H. Watson, former Wells Fargo personal banker Doris Ann Hill, and Robinson's uncle and friends to help buy 25 properties using fraudulent practices.
The team falsified addresses and telephone numbers for straw buyers, as well as rental histories, employment histories and bank deposits, according to the indictment. In San Antonio, BBC bought five fourplexes on Meadow Field on Aug. 14, 2001, for $100,000 each and then sold them during the same month to an “unindicted co-conspirator” for $157,000 each. The second buyer sold four of the properties about eight months later to another “unindicted co-conspirator” for $167,000. At some point, the mortgage payments no longer were being paid and lenders foreclosed on all five properties in 2003, according to the court record.
When so many foreclosures happen close together, it can hurt home prices.
Within San Antonio's Great Northwest area, where the Meadow Field properties are located, the median price dropped 2.4 percent in 2004, the year after the five properties were foreclosed, according to the San Antonio Board of Realtors.
In January 2008, 16 people were indicted for having participated in BBC's mortgage scams. Seelig, Watson, Hill and eight other defendants pleaded guilty to charges related to wire fraud, money laundering and making false statements on loans and will be sentenced today.
Robinson went to trial and was convicted of five counts of wire fraud, seven counts of money laundering and nine counts of making false statements on loans, according to the U.S. Attorney's Office. His case is set for sentencing on June 20.
In the two ongoing local investigations, FBI special agent David Rawlings who is leading the investigation, says 54 people committed mortgage fraud to buy 112 houses in Stone Oak, Spring Branch and Dallas.
Because the investigation is ongoing, Rawlings would not give many details about the cases. But he did say that in some instances, the straw buyers bought and flipped homes with the help of two San Antonio-based mortgage brokers. In other cases, a buyer purchased a new home at a discount, but got the builder to falsify the mortgage documents by saying the house was sold for a higher price than it was. After the inflated loan closed, the buyer paid the builder a kickback.
Rawlings explained that in San Antonio, several of the cases involved new construction. San Antonio overbuilt homes in 2006 and 2007, and for the past two years, builders have started fewer houses in an effort to sell off their existing inventory. Such scenarios can create a climate ripe for fraud, Rawlings said. “Where there's newer construction, you have a lot of desperate sellers and builders,” Rawlings said. “The losses have been up to $400,000 and $500,000 on some million-dollar homes.”
Such fraud techniques are not exclusive to Texas. One of the largest publicized cases this year happened in Chicago, where lenders lost an estimated $25 million on more than 150 properties after loan officers, processors, a CPA, a real estate agent and developers falsified employment, assets and rental history for straw buyers.
Real estate and foreclosure experts say the frenzy of the housing boom created the atmosphere where such widespread fraud could flourish. The fraud mushroomed as lenders faced rising pressure to increase sales. “I've talked with loan officers who routinely said they'd deny a loan and their bosses would come back and say, ‘Approve it,'” said Rick Sharga, vice president of marketing at RealtyTrac Inc. that monitors foreclosure activity. “When the loan officer said, ‘The loan doesn't fit our lending standards,' (then) the supervisor would say, ‘That's OK. Somebody will buy it.'”
From the SA Express News.
San Antonio Attorney Trey Wilson handles real estate fraud lawsuits, including suits involving real estate investors. As reported by Scene in SA Magazine, Wilson was recently voted by his peers as one of San Antonio's Best Real Estate Litigation Attorneys. He handles a variety of real estate claims and lawsuits, including fraud claims related to residential and commercial properties. As a licensed real estate Agent, Trey Wilson is a San Antonio lawyer who is uniquely attuned to real estate transactions and the duties of the parties to such transactions. He routinely represents Out-of-State investors who have invested in texas real estate. Trey Wilson is the principal of R L Wilson, P.C. Law Firm. he may be reached at 210-223-4100 or www.sa-law.com
AUSTIN AREA MORTGAGE FRAUD SCHEME NETS GUILTY VERDICTS AND PLEAS BY REAL ESTATE PROFESSIONALS
Last March, a federal jury returned guilty verdicts in United States District Court in Austin, Texas against five current and former Austin residents, including ringleader Cornelius Robinson, for their roles in a multi-million dollar mortgage fraud scheme. The following is taken from a DOJ press release, and details a sordid scheme involving real estate agents and even a real estate lawyer.
Following a nine day trial, the jury convicted:
• Cornelius Robinson, age 47, of Austin, Texas, who was the leader and organizer of the fraud scheme. Robinson was convicted of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud, five substantive counts of wire fraud, 9 substantive counts of false statements related to a loan, one count of aiding and abetting the receipt of commissions or gifts from loans by a bank employee, conspiracy to commit money laundering and 7 substantive counts of money laundering. Robinson was acquitted of one false statement charge;
• Michael Breon, age 39, formerly of Austin and a current resident of McKinney, Texas, and a straw purchaser. Breon was convicted of conspiracy to make false statements related to a loan, one count of wire fraud and one count of conspiracy to commit money laundering. Breon, a licensed loan officer and mortgage broker, was employed by several different loan origination and mortgage companies during the conspiracy. Breon was acquitted of conspiracy to commit wire fraud;
• Sindu Sukumaran, age 36, wife of Michael Breon and a straw purchaser. Sukumaran was convicted of wire fraud. Sukumaran was acquitted of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud and conspiracy to commit money laundering;
• Marlon Nathan Torres, age 45, of Hutto, Texas, a licensed real estate agent and buyer and seller of real estate in the Austin area. Torres was convicted of one count each of conspiracy to commit money laundering and money laundering. Torres was acquitted of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud and one substantive count of false statement related to a loan;
• Jeffrey Andre Wilkins, age 46, of Austin, a cousin of Cornelius Robinson and a straw purchaser. Wilkins was convicted of one count each of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud, false statement related to a loan, conspiracy to commit money laundering and money laundering.
United States District Judge Sam Sparks has scheduled sentencing for June 20, 2008.
The five defendants which went to trial were the last of sixteen defendants who were indicted on January 8, 2008 by the Federal Grand Jury in Austin. Eleven co-defendants pleaded guilty to related charges prior to trial. These co-defendants are set for sentencing on June 6, 2008. The co-defendants include:
• Silvia Seelig, age 45, of Austin, and wife of Cornelius Robinson who during the conspiracy, was a licensed real estate agent and a straw buyer;
• George H. Watson, age 55, of Austin, a licensed attorney who specializes in real estate transactions. Watson served as the closing attorney on most of the real estate transactions described in the Indictment;
• James Douglas Atwood, age 51, of Austin, Cornelius Robinson’s uncle and a straw buyer;
• Doris Ann Hill, age 40, of Austin, a personal banker employed at Wells Fargo Bank. For a fee, Hill agreed to provide a false verification of deposit to loan underwriters in relation to three real estate transactions involving defendant Snead;
• Julius Meyers Lofton, a 45-year-old licensed real estate agent living in Austin and a straw buyer;
• Roy Rivers, age 52, of Austin, and a straw buyer;
• Danielle Guice Rosas, age 40, of Austin, and a straw buyer;
• Stanley Ma, age 27, of Honolulu, Hawaii and a straw buyer;
• Leonard Brown, age 38, of Houston, Texas, who provided a false verification of employment in association with Onyx Consulting and defendant Ma;
• Russell Snead, age 43, of the Seattle, Washington area and a straw buyer; and,
• Leroy Williams, age 46, of Austin and a straw buyer.
From September 1999 to present, the defendants participated in a scheme to defraud mortgage lenders, including federally insured financial institutions, with regard to loans acquired to purchase 25 properties in the Austin and San Antonio area. The scheme centered upon the use of real estate “flips.” That is, the defendants purchased property at one price and would immediately sell, or “flip,” the property to a “straw buyer” at a higher price. In doing so, the mortgage lenders were deceived as to the true nature of the transaction and the financial status of the “straw buyer.” The straw buyers did not make the subsequent monthly mortgage payments and all of the loans have gone into default. All of loans have been either foreclosed upon or are the subject of current foreclosure proceedings.
This case was investigated by the Federal Bureau of Investigation and the Internal Revenue Service - Criminal Investigations.
Following a nine day trial, the jury convicted:
• Cornelius Robinson, age 47, of Austin, Texas, who was the leader and organizer of the fraud scheme. Robinson was convicted of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud, five substantive counts of wire fraud, 9 substantive counts of false statements related to a loan, one count of aiding and abetting the receipt of commissions or gifts from loans by a bank employee, conspiracy to commit money laundering and 7 substantive counts of money laundering. Robinson was acquitted of one false statement charge;
• Michael Breon, age 39, formerly of Austin and a current resident of McKinney, Texas, and a straw purchaser. Breon was convicted of conspiracy to make false statements related to a loan, one count of wire fraud and one count of conspiracy to commit money laundering. Breon, a licensed loan officer and mortgage broker, was employed by several different loan origination and mortgage companies during the conspiracy. Breon was acquitted of conspiracy to commit wire fraud;
• Sindu Sukumaran, age 36, wife of Michael Breon and a straw purchaser. Sukumaran was convicted of wire fraud. Sukumaran was acquitted of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud and conspiracy to commit money laundering;
• Marlon Nathan Torres, age 45, of Hutto, Texas, a licensed real estate agent and buyer and seller of real estate in the Austin area. Torres was convicted of one count each of conspiracy to commit money laundering and money laundering. Torres was acquitted of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud and one substantive count of false statement related to a loan;
• Jeffrey Andre Wilkins, age 46, of Austin, a cousin of Cornelius Robinson and a straw purchaser. Wilkins was convicted of one count each of conspiracy to make false statements related to a loan, conspiracy to commit wire fraud, false statement related to a loan, conspiracy to commit money laundering and money laundering.
United States District Judge Sam Sparks has scheduled sentencing for June 20, 2008.
The five defendants which went to trial were the last of sixteen defendants who were indicted on January 8, 2008 by the Federal Grand Jury in Austin. Eleven co-defendants pleaded guilty to related charges prior to trial. These co-defendants are set for sentencing on June 6, 2008. The co-defendants include:
• Silvia Seelig, age 45, of Austin, and wife of Cornelius Robinson who during the conspiracy, was a licensed real estate agent and a straw buyer;
• George H. Watson, age 55, of Austin, a licensed attorney who specializes in real estate transactions. Watson served as the closing attorney on most of the real estate transactions described in the Indictment;
• James Douglas Atwood, age 51, of Austin, Cornelius Robinson’s uncle and a straw buyer;
• Doris Ann Hill, age 40, of Austin, a personal banker employed at Wells Fargo Bank. For a fee, Hill agreed to provide a false verification of deposit to loan underwriters in relation to three real estate transactions involving defendant Snead;
• Julius Meyers Lofton, a 45-year-old licensed real estate agent living in Austin and a straw buyer;
• Roy Rivers, age 52, of Austin, and a straw buyer;
• Danielle Guice Rosas, age 40, of Austin, and a straw buyer;
• Stanley Ma, age 27, of Honolulu, Hawaii and a straw buyer;
• Leonard Brown, age 38, of Houston, Texas, who provided a false verification of employment in association with Onyx Consulting and defendant Ma;
• Russell Snead, age 43, of the Seattle, Washington area and a straw buyer; and,
• Leroy Williams, age 46, of Austin and a straw buyer.
From September 1999 to present, the defendants participated in a scheme to defraud mortgage lenders, including federally insured financial institutions, with regard to loans acquired to purchase 25 properties in the Austin and San Antonio area. The scheme centered upon the use of real estate “flips.” That is, the defendants purchased property at one price and would immediately sell, or “flip,” the property to a “straw buyer” at a higher price. In doing so, the mortgage lenders were deceived as to the true nature of the transaction and the financial status of the “straw buyer.” The straw buyers did not make the subsequent monthly mortgage payments and all of the loans have gone into default. All of loans have been either foreclosed upon or are the subject of current foreclosure proceedings.
This case was investigated by the Federal Bureau of Investigation and the Internal Revenue Service - Criminal Investigations.
Real Estate Agent Liability in Texas -- More Agents Means More Potential for Malpractice and Liability
Like most other industries, Real Estate in Texas is down. However, it is almost universally agreed that our real estate markets are healthier than those of most other states. In fact, a recent survey by Forbes of the 40 largest U.S. metropolitan areas to determine the best cities for purchasing a home, placed four Texas cities in the top six spots. Houston and Austin ranked first and second, while Dallas and San Antonio placed fifth and sixth.
With the "hot" market that Texas has enjoyed for years, the number of licensed agents has burgeoned. Following the real estate bust of the late 1980's and the aftershocks felt through most of the 90's, the number of active Texas real estate licensees dropped nearly in half from 1986 to 1997. Then came the extended real estate boom, which has only recently began to subside. Since 1997, the number of Texas real estate licensees has been growing. Today, there are an estimated 140,000 Texas licensees.
Unfortunately, not all Texas real estate agents (or practitioners of any industry for that matter) are ethical or competent. As with any commission-based business, there exists an inherent pressure on real estate agents to close sales of real property -- even when those sales benefit only the agent. Also, because of their close proximity to transactions and access to sensitive information, some real estate agents are tempted to engage in self-dealing. Finally, agents are human, and they sometimes make innocent mistakes. Even in those situations -- where rel estate agent negligence or incompetence (as opposed to malfeasance) results in harm, loss or injury to the agent's client or to the other party in a real estate transaction can be actionable.
The Texas Real Estate License Act, located at Chapter 1101 of the Texas Occupations Code, governs the issuance of real estate licenses in Texas, and prescribes standards for the conduct of Texas real estate brokers and agents. Two sections, in particular, apply to most situations by which people are injured by the acts or omissions of real estate professionals. They are as follows:
Sec. 1101.803. GENERAL LIABILITY OF BROKER. A licensed broker is liable to the commission, the public, and the broker's clients for any conduct engaged in under this chapter by the broker or by a salesperson associated with or acting for the broker.
Section 1101.803 is generally understood to create strict liability of a broker for thr the acts or omissions of real estate agents (salepersons) associated with the broker. This is significant because in many situations, the real estate client (buyer or seller) develops a relationship solely with a salesperson. Indeed, in many instances, the client never meets or speaks with broker, and has all contact with the real estate firm through the salesperson. Notwithstanding this fact, or the fact that he or she may be a total stranger to the client, the broker is liable to the client for any errors, misdeeds or failures of the salesperson. The practical significance of Section 1101.803 is that it provides an aggrieved party the right to pursue and potentially recover from both the guilty agent, and his or her broker. In some instances, the agent and broker may even have separate errors and omissions/professional liability insurance policies under which recovery may be sought. It is extremely important that an individual claiming professional negligence resulting from a real estate agent's acts also makes a timely claim against the broker. Even some experienced lawyers are unaware of this provision, and resultantly, many legitimate claims against brokers have never been pursued.
The second oft-implicated section of the Texas Real Estate License Act is Section 1101.805 relating to representations (or the lack thereof) made by agents and their clients. It provides:
Sec. 1101.805. LIABILITY FOR MISREPRESENTATION OR CONCEALMENT. (a) In this section, "party" has the meaning assigned by Section 1101.551.
(b) This section prevails over any other law, including common law.
(c) This section does not diminish a broker's responsibility for the acts or omissions of a salesperson associated with or acting for the broker.
(d) A party is not liable for a misrepresentation or a concealment of a material fact made by a license holder in a real estate transaction unless the party:
(1) knew of the falsity of the misrepresentation or concealment; and
(2) failed to disclose the party's knowledge of the falsity of the misrepresentation or concealment.
(e) A license holder is not liable for a misrepresentation or a concealment of a material fact made by a party to a real estate transaction unless the license holder:
(1) knew of the falsity of the misrepresentation or concealment; and
(2) failed to disclose the license holder's knowledge of the falsity of the misrepresentation or concealment.
(f) A party or a license holder is not liable for a misrepresentation or a concealment of a material fact made by a subagent in a real estate transaction unless the party or license holder:
(1) knew of the falsity of the misrepresentation or concealment; and
(2) failed to disclose the party's or license holder's knowledge of the falsity of the misrepresentation or concealment.
In plain English, Section 1101.805 stands for a pretty simple proposition: real estate professionals are not responsible for misstatements or failures in disclosure of their clients unless the professional is aware of the misstaement/concealment and doies nothing about it. The proposition applies in reverse too -- innocent clients are not liable for misstatements or failures in disclosure of their agents.
Horror stories about real estate agents abound -- and not just in Texas. If you have been aggrieved by a Texas real estate broker or agent, you should consult with experienced legal counsel familiar with the standards and duties of Texas real estate professionals, and the complexities of real estate transactions. Trey Wilson was named by Scene in SA Magaizine as one of San Antonio's Best Real Estate Litigation Attorneys. In addition to being a real estate and construction lawyer, Trey Wilson is a licensed real estate agent. He may be reached at 210-223-4100 or www.sa-law.com
With the "hot" market that Texas has enjoyed for years, the number of licensed agents has burgeoned. Following the real estate bust of the late 1980's and the aftershocks felt through most of the 90's, the number of active Texas real estate licensees dropped nearly in half from 1986 to 1997. Then came the extended real estate boom, which has only recently began to subside. Since 1997, the number of Texas real estate licensees has been growing. Today, there are an estimated 140,000 Texas licensees.
Unfortunately, not all Texas real estate agents (or practitioners of any industry for that matter) are ethical or competent. As with any commission-based business, there exists an inherent pressure on real estate agents to close sales of real property -- even when those sales benefit only the agent. Also, because of their close proximity to transactions and access to sensitive information, some real estate agents are tempted to engage in self-dealing. Finally, agents are human, and they sometimes make innocent mistakes. Even in those situations -- where rel estate agent negligence or incompetence (as opposed to malfeasance) results in harm, loss or injury to the agent's client or to the other party in a real estate transaction can be actionable.
The Texas Real Estate License Act, located at Chapter 1101 of the Texas Occupations Code, governs the issuance of real estate licenses in Texas, and prescribes standards for the conduct of Texas real estate brokers and agents. Two sections, in particular, apply to most situations by which people are injured by the acts or omissions of real estate professionals. They are as follows:
Sec. 1101.803. GENERAL LIABILITY OF BROKER. A licensed broker is liable to the commission, the public, and the broker's clients for any conduct engaged in under this chapter by the broker or by a salesperson associated with or acting for the broker.
Section 1101.803 is generally understood to create strict liability of a broker for thr the acts or omissions of real estate agents (salepersons) associated with the broker. This is significant because in many situations, the real estate client (buyer or seller) develops a relationship solely with a salesperson. Indeed, in many instances, the client never meets or speaks with broker, and has all contact with the real estate firm through the salesperson. Notwithstanding this fact, or the fact that he or she may be a total stranger to the client, the broker is liable to the client for any errors, misdeeds or failures of the salesperson. The practical significance of Section 1101.803 is that it provides an aggrieved party the right to pursue and potentially recover from both the guilty agent, and his or her broker. In some instances, the agent and broker may even have separate errors and omissions/professional liability insurance policies under which recovery may be sought. It is extremely important that an individual claiming professional negligence resulting from a real estate agent's acts also makes a timely claim against the broker. Even some experienced lawyers are unaware of this provision, and resultantly, many legitimate claims against brokers have never been pursued.
The second oft-implicated section of the Texas Real Estate License Act is Section 1101.805 relating to representations (or the lack thereof) made by agents and their clients. It provides:
Sec. 1101.805. LIABILITY FOR MISREPRESENTATION OR CONCEALMENT. (a) In this section, "party" has the meaning assigned by Section 1101.551.
(b) This section prevails over any other law, including common law.
(c) This section does not diminish a broker's responsibility for the acts or omissions of a salesperson associated with or acting for the broker.
(d) A party is not liable for a misrepresentation or a concealment of a material fact made by a license holder in a real estate transaction unless the party:
(1) knew of the falsity of the misrepresentation or concealment; and
(2) failed to disclose the party's knowledge of the falsity of the misrepresentation or concealment.
(e) A license holder is not liable for a misrepresentation or a concealment of a material fact made by a party to a real estate transaction unless the license holder:
(1) knew of the falsity of the misrepresentation or concealment; and
(2) failed to disclose the license holder's knowledge of the falsity of the misrepresentation or concealment.
(f) A party or a license holder is not liable for a misrepresentation or a concealment of a material fact made by a subagent in a real estate transaction unless the party or license holder:
(1) knew of the falsity of the misrepresentation or concealment; and
(2) failed to disclose the party's or license holder's knowledge of the falsity of the misrepresentation or concealment.
In plain English, Section 1101.805 stands for a pretty simple proposition: real estate professionals are not responsible for misstatements or failures in disclosure of their clients unless the professional is aware of the misstaement/concealment and doies nothing about it. The proposition applies in reverse too -- innocent clients are not liable for misstatements or failures in disclosure of their agents.
Horror stories about real estate agents abound -- and not just in Texas. If you have been aggrieved by a Texas real estate broker or agent, you should consult with experienced legal counsel familiar with the standards and duties of Texas real estate professionals, and the complexities of real estate transactions. Trey Wilson was named by Scene in SA Magaizine as one of San Antonio's Best Real Estate Litigation Attorneys. In addition to being a real estate and construction lawyer, Trey Wilson is a licensed real estate agent. He may be reached at 210-223-4100 or www.sa-law.com
Real Estate Named 3rd Largest Contributer to Texas Economy
Real estate is the third most important private industry in Texas, accounting for nearly 8% of Texas’ gross domestic product in 2006, behind manufacturing (13.4%) and mining (9.8%). “The GDP is the broadest measure of economic importance when looking at the overall economy,” says Ali Anari, Ph.D., research economist with the Real Estate Center at Texas A&M University. Anari analyzed a variety of economic factors in his recently released report, Texas Real Estate Industry Review, 2008. Among the findings:
Every $1 million of revenue in the Texas real estate industry generates 5.16 jobs within the industry and five jobs in other industries.
$1 million of sales tax generated in the real estate industry leads to $1.26 million of sales tax overall in the Texas economy.
Taxes paid by the real estate industry accounted for 18.7% of total Texas business taxes in 2007.
Source: Real Estate Center at Texas A&M University
Every $1 million of revenue in the Texas real estate industry generates 5.16 jobs within the industry and five jobs in other industries.
$1 million of sales tax generated in the real estate industry leads to $1.26 million of sales tax overall in the Texas economy.
Taxes paid by the real estate industry accounted for 18.7% of total Texas business taxes in 2007.
Source: Real Estate Center at Texas A&M University
Thứ Tư, 24 tháng 12, 2008
Crime News: Bernie Madoff Scandal Kills DNA Testing for Wrongfully Convicted
The biggest Ponzi scheme in history has reached Texas - and it's very bad news.
This week, while Bernie Madoff sits on house arrest in his plush NYC condo, the Innocence Project of Texas was forced to announce that while they can finish up their scheduled DNA testing for folk who have been wrongfully convicted, they don't have the cash to continue.
JEHT Foundation Closed Its Doors on December 15, 2008
Seems the Madoff scandal forced the JEHT Foundation to shut down, and this was the organization that paid for all these DNA tests.
An acronym for Justice Equality Human dignity and Tolerance, JEHT has been the work of New York philanthropist Jeanne Levy Church and her husband, Kenneth. JEHT focused upon criminal justice reform nationally, and just last year the Levy Churches gave $29.9 million via the Foundation for this Dallas DNA testing endeavor. Madoff's evildoings put an end to JEHT's cashflow, effective December 15th.
There is some good news here. According to the Dallas Morning News, JEHT gave $400,000 to the Innocence Project of Texas and the Project is legally free to keep that cash, and pay for DNA tests already on its calendar.
Just forget the $15,000,000 that JEHT was negotiating to invest in Dallas justice over the upcoming year ....
What Happens With the Innocence Project of Texas?
First, after what is reported as an initial "panic," their leadership has regrouped and after determining that they can keep the $400,000, they're going to try and spread that money over the DNA testing on schedule and hope that this will cover the years of questionable verdicts currently under scrutiny.
They're also talking about where else they can go for funds, and how they can organize fundraisers, etc.
Finally, their executive director reportedly told the Dallas Morning News, " I think it's going to turn out okay."
A Suggestion for Bernie - Instead of House Arrest, Put Him in James Woodard's Old Cell
Here's one suggestion that I'm sure lots would agree would be true Texas Justice -- let's move Bernie Madoff from his Manhattan condo, and put him into one of the Texas prison cells in which one of the wrongfully convicted had to reside while Madoff awaits trial.
Maybe Bernie could kick back in the prison cell of James Woodard, who was released at age 55 after serving 27 years for the wrongful conviction of raping and murdering his girlfriend. (Woodard's got the record right now for the longest amount of wrongful time served.)
Sources:
KDBC-TV
http://www.kdbc.com/Global/story.asp?S=9575212&nav=menu608_2_4
Associated Press
http://www.google.com/hostednews/ap/article/ALeqM5h-61vCWv2M4EBXW8BwYy6jbwm_7wD956ME0O0
New York Times
http://dealbook.blogs.nytimes.com/2008/12/15/madoff-scandal-forces-jeht-foundations-closure/
Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-dnamoney_24met.ART0.State.Edition2.4a2f9ed.html
Bloomberg
http://www.bloomberg.com/apps/news?pid=20601087&sid=aPFOinHpCuPo&refer=home
This week, while Bernie Madoff sits on house arrest in his plush NYC condo, the Innocence Project of Texas was forced to announce that while they can finish up their scheduled DNA testing for folk who have been wrongfully convicted, they don't have the cash to continue.
JEHT Foundation Closed Its Doors on December 15, 2008
Seems the Madoff scandal forced the JEHT Foundation to shut down, and this was the organization that paid for all these DNA tests.
An acronym for Justice Equality Human dignity and Tolerance, JEHT has been the work of New York philanthropist Jeanne Levy Church and her husband, Kenneth. JEHT focused upon criminal justice reform nationally, and just last year the Levy Churches gave $29.9 million via the Foundation for this Dallas DNA testing endeavor. Madoff's evildoings put an end to JEHT's cashflow, effective December 15th.
There is some good news here. According to the Dallas Morning News, JEHT gave $400,000 to the Innocence Project of Texas and the Project is legally free to keep that cash, and pay for DNA tests already on its calendar.
Just forget the $15,000,000 that JEHT was negotiating to invest in Dallas justice over the upcoming year ....
What Happens With the Innocence Project of Texas?
First, after what is reported as an initial "panic," their leadership has regrouped and after determining that they can keep the $400,000, they're going to try and spread that money over the DNA testing on schedule and hope that this will cover the years of questionable verdicts currently under scrutiny.
They're also talking about where else they can go for funds, and how they can organize fundraisers, etc.
Finally, their executive director reportedly told the Dallas Morning News, " I think it's going to turn out okay."
A Suggestion for Bernie - Instead of House Arrest, Put Him in James Woodard's Old Cell
Here's one suggestion that I'm sure lots would agree would be true Texas Justice -- let's move Bernie Madoff from his Manhattan condo, and put him into one of the Texas prison cells in which one of the wrongfully convicted had to reside while Madoff awaits trial.
Maybe Bernie could kick back in the prison cell of James Woodard, who was released at age 55 after serving 27 years for the wrongful conviction of raping and murdering his girlfriend. (Woodard's got the record right now for the longest amount of wrongful time served.)
Sources:
KDBC-TV
http://www.kdbc.com/Global/story.asp?S=9575212&nav=menu608_2_4
Associated Press
http://www.google.com/hostednews/ap/article/ALeqM5h-61vCWv2M4EBXW8BwYy6jbwm_7wD956ME0O0
New York Times
http://dealbook.blogs.nytimes.com/2008/12/15/madoff-scandal-forces-jeht-foundations-closure/
Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-dnamoney_24met.ART0.State.Edition2.4a2f9ed.html
Bloomberg
http://www.bloomberg.com/apps/news?pid=20601087&sid=aPFOinHpCuPo&refer=home
Thứ Hai, 22 tháng 12, 2008
Injured by a car?
We have seen an increase of people calling our law firm after trying to take care of their own auto accidents with the insurance companies. To their surprise, insurance companies treat them well at first, and them change their way of handling the claim.
With this blog we will inform our readers that: insurance companies are not your friends when it comes to claim handling; you should let a professional handle your claims for you since insurance copanies have their experts.
When a person has a situation with their car, they take it to the mechanic. Conversely, when a person has health problems, they consult with a doctor. Then, why is it that when people have legal problems they try to solve them themselves. The answer is very simple.
Television has created this illusion that every person can take care of their legal problems. Programs such as the practice, boston legal and others have change the way that our society view legal situations.
Our advise to you is that let the experts handle your legal case. We are The Baez Law Firm, P.C. a general practice law firm in san antonio that specializes in personal injury, family law, criminal law, business law, consumer law, litigation, and appeals. We can help you with your legal matter, specially with your accident.
Our doctors will focus on getting you back to normal so that you can do what you do best. So, let us do what we do best. We care about your legal needs!
With this blog we will inform our readers that: insurance companies are not your friends when it comes to claim handling; you should let a professional handle your claims for you since insurance copanies have their experts.
When a person has a situation with their car, they take it to the mechanic. Conversely, when a person has health problems, they consult with a doctor. Then, why is it that when people have legal problems they try to solve them themselves. The answer is very simple.
Television has created this illusion that every person can take care of their legal problems. Programs such as the practice, boston legal and others have change the way that our society view legal situations.
Our advise to you is that let the experts handle your legal case. We are The Baez Law Firm, P.C. a general practice law firm in san antonio that specializes in personal injury, family law, criminal law, business law, consumer law, litigation, and appeals. We can help you with your legal matter, specially with your accident.
Our doctors will focus on getting you back to normal so that you can do what you do best. So, let us do what we do best. We care about your legal needs!
JUDGE WATCH: Houston Judge Ignores Reversal of Conviction, Keeps Abused Kid Behind Bars Whose Repeated Outcries Where Ignored
This Christmas story should make you mad. Mad at a lot of people .... really, really mad.
Right now, a kid sits in jail over this Christmas holiday because a judge said so - a boy who everyone knows suffered physical abuse from his father for years must spend another Christmas behind bars.
And, even though the 14th Court of Appeals says this kid didn't get a fair trial the first time.
Who is this kid?
We don't know his name - that much is being protected. We do know that he is a boy who at the age of 10, after no adult would listen to him, took matters into his own hands to protect himself and his little brother (two years younger), and shot his father to death when the dad came to pick up the boy and his brother from their mother's home (the parents were divorced).
Get this (and this comes from the 14th Court's opinion):
1. Cops were called to the parents' home on 20 separate occasions on domestic violence calls with each of them -- mother and dad -- being arrested more than once.
2. The boy in jail saw his dad arrested at least 7 times because of physical altercations.
3. This dad was not some fly-by-night guy: the boy's father was an emergency room doctor at the University of Texas hospital in Galveston. That's right: an ER doctor.
4. When the boy was 6, he saw his dad take a hammer to his mother - and the child picked up the phone, trying to get his mother to call 911. She didn't.
5. While a psychologist confirmed that the boy had been sexually abused, and while the mother found the boy exhibiting behaviors that are known to be evidence of sexual abuse, nothing was done after the boy outcried that his father was the perpetrator -- CPS was inept, the police didn't file charges. And this was true for authorities in both Houston and Galveston. The dad didn't lose parental rights or visitation.
6. The boy was beaten by his father - the father used his hands or a leather belt.
7. The boy was afraid to take a bath in his father's home because of fear of molestation. He took a beating rather than take a bath.
8. The father was known to have "intermittent explosive disorder" and was also known not to be taking medication to combat the condition.
9. Cops had to be called to make the boys get in the car to go on legal visitation with their dad.
10. The father's new girlfriend hit the boys, called them names like "pigs" and "turds" and would lock the boys out of the house. The boy could not stop the girlfriend from "whipping" his little brother with a belt.
11. The boy was under the care of both a psychiatrist and a psychologist at the time of the shooting.
12. He had been given Prozac for depression.
What? What's going on here?
Four years ago, this 10 year old boy from Katy, Texas, was tried and convicted of shooting his father to death as the dad came to pick up the boy and his brother from their mother's home (the parents were divorced). He pulled a pistol out of his backpack and shot his father through the driver's seat of the SUV as the boy and his brother were being picked up for weekend visitation.
Last week, the 14th Court of Appeals reversed that conviction. The boy did not get a fair trial.
What was unfair? The appellate court found that the jury didn't get to hear evidence about how that boy thought he was defending himself and his kid brother from his dad. Part of that evidence included this 10 year old meeting with a psychologist just hours before the shooting, outcrying that he was afraid of his father, as well as this child telling a variety of authorities many times that he was scared of his dad.
According to the Appellate Court, this boy should have a new trial, where evidence that he was trying to protect his brother and himself could be a part of the jury's consideration of his guilt or innocence.
Apparently, the Houston judge doesn't care what the Appellate Court thinks is fair.
What's the judge's excuse? Why can't this child -- who suffered for 10 years with his parents, only to suffer his next four years of life in TYC -- come home for Christmas?
The trial judge wants to wait till the full Appellate Court grades the papers of its three-justice panel. Usually, appellate court decisions are rendered by panels of three justices who collectively render an opinion. If someone requests it, that panel decision can be reviewed by the entire appellate court -- and all the justices come together for a collective result.
Ridiculous. Sad. Sounds a lot like this boy just keep getting abused, doesn't it?
Free this boy!!! Perhaps the 14th Court of Appeals can do something here -- something like justice????
Sources:
Houston Chronicle
http://www.chron.com/disp/story.mpl/ap/tx/6174465.html
MSNBC
http://www.msnbc.msn.com/id/28349732/
FoxHouston (includes the 14th Court of Appeals Opinion)
http://www.myfoxhouston.com/myfox/pages/News/Detail?contentId=8052929&version=1&locale=EN-US&layoutCode=TSTY&pageId=3.2.1
Right now, a kid sits in jail over this Christmas holiday because a judge said so - a boy who everyone knows suffered physical abuse from his father for years must spend another Christmas behind bars.
And, even though the 14th Court of Appeals says this kid didn't get a fair trial the first time.
Who is this kid?
We don't know his name - that much is being protected. We do know that he is a boy who at the age of 10, after no adult would listen to him, took matters into his own hands to protect himself and his little brother (two years younger), and shot his father to death when the dad came to pick up the boy and his brother from their mother's home (the parents were divorced).
Get this (and this comes from the 14th Court's opinion):
1. Cops were called to the parents' home on 20 separate occasions on domestic violence calls with each of them -- mother and dad -- being arrested more than once.
2. The boy in jail saw his dad arrested at least 7 times because of physical altercations.
3. This dad was not some fly-by-night guy: the boy's father was an emergency room doctor at the University of Texas hospital in Galveston. That's right: an ER doctor.
4. When the boy was 6, he saw his dad take a hammer to his mother - and the child picked up the phone, trying to get his mother to call 911. She didn't.
5. While a psychologist confirmed that the boy had been sexually abused, and while the mother found the boy exhibiting behaviors that are known to be evidence of sexual abuse, nothing was done after the boy outcried that his father was the perpetrator -- CPS was inept, the police didn't file charges. And this was true for authorities in both Houston and Galveston. The dad didn't lose parental rights or visitation.
6. The boy was beaten by his father - the father used his hands or a leather belt.
7. The boy was afraid to take a bath in his father's home because of fear of molestation. He took a beating rather than take a bath.
8. The father was known to have "intermittent explosive disorder" and was also known not to be taking medication to combat the condition.
9. Cops had to be called to make the boys get in the car to go on legal visitation with their dad.
10. The father's new girlfriend hit the boys, called them names like "pigs" and "turds" and would lock the boys out of the house. The boy could not stop the girlfriend from "whipping" his little brother with a belt.
11. The boy was under the care of both a psychiatrist and a psychologist at the time of the shooting.
12. He had been given Prozac for depression.
What? What's going on here?
Four years ago, this 10 year old boy from Katy, Texas, was tried and convicted of shooting his father to death as the dad came to pick up the boy and his brother from their mother's home (the parents were divorced). He pulled a pistol out of his backpack and shot his father through the driver's seat of the SUV as the boy and his brother were being picked up for weekend visitation.
Last week, the 14th Court of Appeals reversed that conviction. The boy did not get a fair trial.
What was unfair? The appellate court found that the jury didn't get to hear evidence about how that boy thought he was defending himself and his kid brother from his dad. Part of that evidence included this 10 year old meeting with a psychologist just hours before the shooting, outcrying that he was afraid of his father, as well as this child telling a variety of authorities many times that he was scared of his dad.
According to the Appellate Court, this boy should have a new trial, where evidence that he was trying to protect his brother and himself could be a part of the jury's consideration of his guilt or innocence.
Apparently, the Houston judge doesn't care what the Appellate Court thinks is fair.
What's the judge's excuse? Why can't this child -- who suffered for 10 years with his parents, only to suffer his next four years of life in TYC -- come home for Christmas?
The trial judge wants to wait till the full Appellate Court grades the papers of its three-justice panel. Usually, appellate court decisions are rendered by panels of three justices who collectively render an opinion. If someone requests it, that panel decision can be reviewed by the entire appellate court -- and all the justices come together for a collective result.
Ridiculous. Sad. Sounds a lot like this boy just keep getting abused, doesn't it?
Free this boy!!! Perhaps the 14th Court of Appeals can do something here -- something like justice????
Sources:
Houston Chronicle
http://www.chron.com/disp/story.mpl/ap/tx/6174465.html
MSNBC
http://www.msnbc.msn.com/id/28349732/
FoxHouston (includes the 14th Court of Appeals Opinion)
http://www.myfoxhouston.com/myfox/pages/News/Detail?contentId=8052929&version=1&locale=EN-US&layoutCode=TSTY&pageId=3.2.1
Thứ Sáu, 19 tháng 12, 2008
Budget for HOA Success
by Richard Thompson of Realty Times
Every homeowner association needs a well crafted annual budget to calculate the fees to be paid by the members. For most HOAs which have a fiscal year starting in January, the fall prior to that is budget review time. A review and revision should happen each year without exception because costs change every year. Failure to revise (read "increase") each year will put the HOA deeper and deeper in the hole. There are number of areas that every budget review should include:
Historical Operating Expenses. Examine the most recent 12 months' expenses to determine your base for each expense line item. Scrutinize line items that are larger than normal to determine if there was an anomaly that is not likely to repeat the next year. If so, don't include it.
Anticipated Increases. Utility costs typically increase every year. Contract services also are subject to increase. Call your utility and service providers and ask them if there will be an increase in the coming year.
Contingency. HOAs often experience unforeseen expenses and/or revenue shortfall. Add 5-10% of the total budget to cover this.
Reserve Funds. Every HOA should set aside funds for future common element repairs and replacements. Both Fannie Mae and Freddie Mac (the entities that underwrite most home mortgages) require at least 10% of the condominium annual revenues be dedicated to reserves. For HOAs with little common area or few common elements, 10% may suffice but condominiums often need 25% or more of the annual budget dedicated to this purpose. Only a reserve study done by a qualified professional reveals the answer. For a list of professionals that hold a PRA (Professional Reserve Analyst) credential, the highest available in the industry, go to www.apra-usa.com Some boards fail to raise HOA fees each year because:
1. Some members are on fixed incomes. While this is true in virtually every form of housing, the board needs to remember that every member's property is affected negatively if repairs and maintenance are deferred due to lack of money. The truth is that some homeowners may have reached a point where downsizing makes sense. And unless the board gets the other members' consent to subsidize the members who don't have enough money, the response to those that can't pay should be "we sympathize but the budget needs to be adequate to maintain the common elements." The board that keeps the budget artificially low for this reason bears personally responsibility for the consequences.
2. They don't want to look like bad guys. The board is elected to run the HOA like a business. It takes money to run a business properly. While no one wants to pay more than it costs, few members are naive enough to think costs don't go up each year. The board that ignores reality is personally responsible for the results.
3. They disagree with the reserve study provider's recommendations. While it's possible that a reserve study may be flawed, few board members are qualified to perform one so the board needs to be careful in dismissing recommendations that call for more money to be put into reserves. The average condominium should be setting aside 25-35% of the annual budget to address reserve needs (and more if the funding level is low). If less than that is being reserved, it increases the likelihood of a special assessment which inevitably falls on members that shouldn't have to pay it and on others that are financially unable to pay it. Reserves are best funded monthly, in the case of condos, or quarterly, semiannually or annually in the case of homeowner associations which have modest reserve needs.
4. HOA fees need to match neighboring HOAs. The financial fingerprint of each HOA is unique...no two are alike. The budget needs to be based on the specific services required to maintain the operation and reserves, not what the Joneses are doing. The Joneses may be headed for disaster. Even similar HOAs can have very different financial requirements. Some have higher insurance premiums due to prior claims. Some have funded their reserves appropriately, some are catching up, and some haven't even started yet. Some take care of repairs on a pro-active basis and some have deferred maintenance. Some have earthquake insurance, cable TV and internet access and some don't. In other words, the "HOA fee" doesn't include the same costs in all complexes so comparing the bottom line without knowing what created it is meaningless. Your HOA fees should be based on specific needs, not the neighbor's.
What about cost cutting? Most HOA expenses are not discretionary but there are some areas with great potential for savings, such as:
Insurance. Increasing the insurance deductible lowers the premium. However, if this is done, there should be an Insurance Deductible reserve spread over, say, three years to cover at least one claim. If no claims are filed during the three years, the money is saved.
Landscaping Renovation. Older HOAs often have vast turf areas which are very expensive to maintain. Replacing turf areas with planting beds filled with drought resistant plants and bushes can dramatically reduce costs.
Lighting. Compact fluorescent bulbs use 70% less energy and last years longer than traditional incandescent bulbs. They usually work with existing fixtures and the brighter light they cast enhances security.
Heating & Air Conditioning. If the HOA provides central heating and air conditioning, it is often worth installing new energy efficient equipment. Your utility company usually can provide you a cost/benefit analysis. The older your existing equipment, the faster the payback.
Hot Water Heating System. The same cost/benefit approach applies to central hot water systems. Investing in new equipment can often pay back in only a few years with the energy costs savings.
Pool Solar Heating Equipment. Pool heating costs can easily be one of an HOA's biggest expenses. Solar hot water heating equipment can substantially reduce energy costs and pay for itself in only a few years.
Add Natural Lighting. Common areas can often benefit from devices like Solatube www.solatube.com which capture, concentrate and focus sunlight into dark interiors, reducing the need for electric lighting.
As the Green Revolution expands it's footprint, there are more sustainable energy saving alternatives to consider. Some are low tech and some are higher than high but all are designed to stretch your dollars. For more energy saving and cost cutting information, see the US Department of Energy website
In the final analysis, the board is charged with running business in the best interest of all members. Sometimes that means ruffling a few feathers. But the board has the fiduciary duty to set the HOA fees at a level that is adequate to cover realistic operating and reserve expenses. Budgeting for success means planning, leadership and execution.
Every homeowner association needs a well crafted annual budget to calculate the fees to be paid by the members. For most HOAs which have a fiscal year starting in January, the fall prior to that is budget review time. A review and revision should happen each year without exception because costs change every year. Failure to revise (read "increase") each year will put the HOA deeper and deeper in the hole. There are number of areas that every budget review should include:
Historical Operating Expenses. Examine the most recent 12 months' expenses to determine your base for each expense line item. Scrutinize line items that are larger than normal to determine if there was an anomaly that is not likely to repeat the next year. If so, don't include it.
Anticipated Increases. Utility costs typically increase every year. Contract services also are subject to increase. Call your utility and service providers and ask them if there will be an increase in the coming year.
Contingency. HOAs often experience unforeseen expenses and/or revenue shortfall. Add 5-10% of the total budget to cover this.
Reserve Funds. Every HOA should set aside funds for future common element repairs and replacements. Both Fannie Mae and Freddie Mac (the entities that underwrite most home mortgages) require at least 10% of the condominium annual revenues be dedicated to reserves. For HOAs with little common area or few common elements, 10% may suffice but condominiums often need 25% or more of the annual budget dedicated to this purpose. Only a reserve study done by a qualified professional reveals the answer. For a list of professionals that hold a PRA (Professional Reserve Analyst) credential, the highest available in the industry, go to www.apra-usa.com Some boards fail to raise HOA fees each year because:
1. Some members are on fixed incomes. While this is true in virtually every form of housing, the board needs to remember that every member's property is affected negatively if repairs and maintenance are deferred due to lack of money. The truth is that some homeowners may have reached a point where downsizing makes sense. And unless the board gets the other members' consent to subsidize the members who don't have enough money, the response to those that can't pay should be "we sympathize but the budget needs to be adequate to maintain the common elements." The board that keeps the budget artificially low for this reason bears personally responsibility for the consequences.
2. They don't want to look like bad guys. The board is elected to run the HOA like a business. It takes money to run a business properly. While no one wants to pay more than it costs, few members are naive enough to think costs don't go up each year. The board that ignores reality is personally responsible for the results.
3. They disagree with the reserve study provider's recommendations. While it's possible that a reserve study may be flawed, few board members are qualified to perform one so the board needs to be careful in dismissing recommendations that call for more money to be put into reserves. The average condominium should be setting aside 25-35% of the annual budget to address reserve needs (and more if the funding level is low). If less than that is being reserved, it increases the likelihood of a special assessment which inevitably falls on members that shouldn't have to pay it and on others that are financially unable to pay it. Reserves are best funded monthly, in the case of condos, or quarterly, semiannually or annually in the case of homeowner associations which have modest reserve needs.
4. HOA fees need to match neighboring HOAs. The financial fingerprint of each HOA is unique...no two are alike. The budget needs to be based on the specific services required to maintain the operation and reserves, not what the Joneses are doing. The Joneses may be headed for disaster. Even similar HOAs can have very different financial requirements. Some have higher insurance premiums due to prior claims. Some have funded their reserves appropriately, some are catching up, and some haven't even started yet. Some take care of repairs on a pro-active basis and some have deferred maintenance. Some have earthquake insurance, cable TV and internet access and some don't. In other words, the "HOA fee" doesn't include the same costs in all complexes so comparing the bottom line without knowing what created it is meaningless. Your HOA fees should be based on specific needs, not the neighbor's.
What about cost cutting? Most HOA expenses are not discretionary but there are some areas with great potential for savings, such as:
Insurance. Increasing the insurance deductible lowers the premium. However, if this is done, there should be an Insurance Deductible reserve spread over, say, three years to cover at least one claim. If no claims are filed during the three years, the money is saved.
Landscaping Renovation. Older HOAs often have vast turf areas which are very expensive to maintain. Replacing turf areas with planting beds filled with drought resistant plants and bushes can dramatically reduce costs.
Lighting. Compact fluorescent bulbs use 70% less energy and last years longer than traditional incandescent bulbs. They usually work with existing fixtures and the brighter light they cast enhances security.
Heating & Air Conditioning. If the HOA provides central heating and air conditioning, it is often worth installing new energy efficient equipment. Your utility company usually can provide you a cost/benefit analysis. The older your existing equipment, the faster the payback.
Hot Water Heating System. The same cost/benefit approach applies to central hot water systems. Investing in new equipment can often pay back in only a few years with the energy costs savings.
Pool Solar Heating Equipment. Pool heating costs can easily be one of an HOA's biggest expenses. Solar hot water heating equipment can substantially reduce energy costs and pay for itself in only a few years.
Add Natural Lighting. Common areas can often benefit from devices like Solatube www.solatube.com which capture, concentrate and focus sunlight into dark interiors, reducing the need for electric lighting.
As the Green Revolution expands it's footprint, there are more sustainable energy saving alternatives to consider. Some are low tech and some are higher than high but all are designed to stretch your dollars. For more energy saving and cost cutting information, see the US Department of Energy website
In the final analysis, the board is charged with running business in the best interest of all members. Sometimes that means ruffling a few feathers. But the board has the fiduciary duty to set the HOA fees at a level that is adequate to cover realistic operating and reserve expenses. Budgeting for success means planning, leadership and execution.
Restrictive Covenants Are Treated as Contracts Under Texas Law
Read those CCRs before you sign them! Better yet, have an experienced attorney do so.
The Texas Property Code defines a restrictive covenant as “any covenant, condition, or restriction contained in a dedicatory instrument, whether mandatory, prohibitive, permissive or administrative.” TEX. PROP.CODE ANN. § 202.001(4). Black's Law Dictionary defines restrictive covenant as a “private agreement, usu[ally] in a deed or lease, that restricts the use or occupancy of real property, esp[ecially] by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put.” BLACK'S LAW DICTIONARY 393 (8th Edition 2004). The Restatement (Third) of Property states that a restrictive covenant is “a negative covenant that limits permissible uses of land.” RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 1.3(3) (2000). Clearly, “Declarations of Covenants, Conditions, and Restrictions" or CCRs fall squarely within these definitions, and constitute restrictive covenants.
Texas Courts have long held that restrictive covenant are interpreted according to the rules that govern contract construction. See e.g., Air Park-Dallas Zoning Comm. v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex.App.-Dallas 2003, no pet); Marcus v. Whispering Springs Homeowners Ass'n, Inc., 153 S.W.3d 702 (Tex.App.-Dallas, 2005); VICC Homeowners' Ass'n, Inc. v. Los Campeones, Inc., 143 S.W.3d 832 (Tex.App.-Corpus Christi, 2004). Dyegard Land Partnership v. Hoover, 39 S.W.3d 300 (Tex.App.-Fort Worth 2001, no pet.); Scoville v. SpringPark Homeowner's Ass'n, 784 S.W.2d 498, 502 (Tex.App.-Dallas 1990, writ denied). Further, Courts strictly construe covenants “against the party seeking to enforce it in favor of the free and unrestricted use of the premises.” Munson v. Milton, 948 S.W.2d 813, 816 (Tex.App.-San Antonio 1997, pet. denied). Stated differently, “the right of individuals to use their property in whatever manner they desire remains one of the most fundamental rights an individual property owner possesses.” Rankin v. Covington Oaks Condominium Owners Ass'n, Inc. Not Reported in S.W.3d, 2005 WL 3161039 (Tex.App.-San Antonio, 2005).
Neverthless, the CCRs you receive at time you purchase a home constitute a binding contract -- even if you are not asked to sign them. Prior to closing on your home, you should have an experienced real estate lawyer review and explain the CCRs to you. You can bet that the Homeowners Association and their lawyer are familiar with the CCRs and prepared to enforce them.
The Texas Property Code defines a restrictive covenant as “any covenant, condition, or restriction contained in a dedicatory instrument, whether mandatory, prohibitive, permissive or administrative.” TEX. PROP.CODE ANN. § 202.001(4). Black's Law Dictionary defines restrictive covenant as a “private agreement, usu[ally] in a deed or lease, that restricts the use or occupancy of real property, esp[ecially] by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put.” BLACK'S LAW DICTIONARY 393 (8th Edition 2004). The Restatement (Third) of Property states that a restrictive covenant is “a negative covenant that limits permissible uses of land.” RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 1.3(3) (2000). Clearly, “Declarations of Covenants, Conditions, and Restrictions" or CCRs fall squarely within these definitions, and constitute restrictive covenants.
Texas Courts have long held that restrictive covenant are interpreted according to the rules that govern contract construction. See e.g., Air Park-Dallas Zoning Comm. v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex.App.-Dallas 2003, no pet); Marcus v. Whispering Springs Homeowners Ass'n, Inc., 153 S.W.3d 702 (Tex.App.-Dallas, 2005); VICC Homeowners' Ass'n, Inc. v. Los Campeones, Inc., 143 S.W.3d 832 (Tex.App.-Corpus Christi, 2004). Dyegard Land Partnership v. Hoover, 39 S.W.3d 300 (Tex.App.-Fort Worth 2001, no pet.); Scoville v. SpringPark Homeowner's Ass'n, 784 S.W.2d 498, 502 (Tex.App.-Dallas 1990, writ denied). Further, Courts strictly construe covenants “against the party seeking to enforce it in favor of the free and unrestricted use of the premises.” Munson v. Milton, 948 S.W.2d 813, 816 (Tex.App.-San Antonio 1997, pet. denied). Stated differently, “the right of individuals to use their property in whatever manner they desire remains one of the most fundamental rights an individual property owner possesses.” Rankin v. Covington Oaks Condominium Owners Ass'n, Inc. Not Reported in S.W.3d, 2005 WL 3161039 (Tex.App.-San Antonio, 2005).
Neverthless, the CCRs you receive at time you purchase a home constitute a binding contract -- even if you are not asked to sign them. Prior to closing on your home, you should have an experienced real estate lawyer review and explain the CCRs to you. You can bet that the Homeowners Association and their lawyer are familiar with the CCRs and prepared to enforce them.
The Legal Effect and Enforcability Requirements of a Personal Guaranty
Many times, lenders and landlords -- particularly in commercial lease situations -- will ask a corporation's principal officers to sign a "personal guaranty" providing for individual liability if the corporation defaults on its obligations. However, the actual language used in the personal guaranty document will significantly effect its enforcability. In order to fully understand whether a given "personal guaranty" is valid and enforcable, a study of the applicable law is in order.
What is a personal guaranty?
A guaranty is an undertaking by one individual to be answerable for the payment of some debt or the performance of a contract by another person. An agreement for a guaranty or surety is a contract in which one party agrees to accept responsibility for the performance of another party.
What constitutes a personal guaranty?
The minimum criteria for entering such an agreement appears to have been established in Park Creek Ass., Ltd., v. Walker. In Walker, a lessor brought action against lessees for breach of a lease agreement against an individual who signed the agreement with the term “guarantor” placed after his signature. Walker challenged his alleged guarantor status on the grounds that the statute of frauds had not been satisfied. The court, however, held that this designation was sufficient. In doing so, the Court noted “it is well established that under certain circumstances, the requirements of the statute [of frauds] may be satisfied by two or more documents considered together.” The Court also found that words such as “guaranty” and “guarantor” have legal meanings, and Walker by using such terms clearly demonstrated his intent to guaranty the obligation. Therefore, the lease agreement and the designation “guarantor” could be considered together for purposes of the statute of frauds, and were sufficient to establish liability as a guarantor.
Finally, relevant to the consideration by a Court as to whether a guarantor agreement has been entered are the explicit terms used therein. For instance in American Petrofina Company v. Bryan, the court found that an individual became a guarantor because the explicit terms of the contract referred to her in the personal pronoun “I.” Similarly, in Coleman Furniture Corporation v. Lieurance, letters that used personal pronouns established that an individual was a guarantor.
What language fails to establish a legally enforcable personal guaranty?
In contrast, in Block v. Aube, the insertion of the term “owner” used after a signature did not establish a personal guaranty. In its analysis, the Court noted that a single contract provision alone should not be given controlling effect; rather “all provisions must be considered with reference to the whole instrument.” In order to satisfy the statute of frauds, a writing must also be complete in every material detail. Finally, to establish an enforceable guaranty, it must be shown, with reasonable clarity, “an intent to be liable on an obligation in case of default by the primary obligor. Taking all of this into account, the Court determined that the guaranty agreement was not complete in every detail, and the use of the word “owner” did not clearly demonstrate intent for such an agreement.
Conclusion
When taken altogether, we may conclude that intent to be liable on an obligation is required to establish a guarantor agreement. Using the designation “guarantor” is sufficient to demonstrate such intent, as is the use of personal pronouns throughout an agreement. But it may be argued that the mere use of the term “personally” alone may not be sufficient to establish intent.
Trey Wilson is a San Antonio lawyer practicing primarily in the fields of real estate law, water law and construction-related claims. He is the principal lawyer of R L Wilson, P.C. Law Firm. He may be reached at (210) 223-4100 or www.sa-law.com
What is a personal guaranty?
A guaranty is an undertaking by one individual to be answerable for the payment of some debt or the performance of a contract by another person. An agreement for a guaranty or surety is a contract in which one party agrees to accept responsibility for the performance of another party.
What constitutes a personal guaranty?
The minimum criteria for entering such an agreement appears to have been established in Park Creek Ass., Ltd., v. Walker. In Walker, a lessor brought action against lessees for breach of a lease agreement against an individual who signed the agreement with the term “guarantor” placed after his signature. Walker challenged his alleged guarantor status on the grounds that the statute of frauds had not been satisfied. The court, however, held that this designation was sufficient. In doing so, the Court noted “it is well established that under certain circumstances, the requirements of the statute [of frauds] may be satisfied by two or more documents considered together.” The Court also found that words such as “guaranty” and “guarantor” have legal meanings, and Walker by using such terms clearly demonstrated his intent to guaranty the obligation. Therefore, the lease agreement and the designation “guarantor” could be considered together for purposes of the statute of frauds, and were sufficient to establish liability as a guarantor.
Finally, relevant to the consideration by a Court as to whether a guarantor agreement has been entered are the explicit terms used therein. For instance in American Petrofina Company v. Bryan, the court found that an individual became a guarantor because the explicit terms of the contract referred to her in the personal pronoun “I.” Similarly, in Coleman Furniture Corporation v. Lieurance, letters that used personal pronouns established that an individual was a guarantor.
What language fails to establish a legally enforcable personal guaranty?
In contrast, in Block v. Aube, the insertion of the term “owner” used after a signature did not establish a personal guaranty. In its analysis, the Court noted that a single contract provision alone should not be given controlling effect; rather “all provisions must be considered with reference to the whole instrument.” In order to satisfy the statute of frauds, a writing must also be complete in every material detail. Finally, to establish an enforceable guaranty, it must be shown, with reasonable clarity, “an intent to be liable on an obligation in case of default by the primary obligor. Taking all of this into account, the Court determined that the guaranty agreement was not complete in every detail, and the use of the word “owner” did not clearly demonstrate intent for such an agreement.
Conclusion
When taken altogether, we may conclude that intent to be liable on an obligation is required to establish a guarantor agreement. Using the designation “guarantor” is sufficient to demonstrate such intent, as is the use of personal pronouns throughout an agreement. But it may be argued that the mere use of the term “personally” alone may not be sufficient to establish intent.
Trey Wilson is a San Antonio lawyer practicing primarily in the fields of real estate law, water law and construction-related claims. He is the principal lawyer of R L Wilson, P.C. Law Firm. He may be reached at (210) 223-4100 or www.sa-law.com
Thứ Năm, 18 tháng 12, 2008
San Antonio's "Most Wanted" Unlicensed Contractor Shows Up to Court
From WOAI.com
SAN ANTONIO - State investigators call him the "most wanted" unlicensed contractor in San Antonio. They accuse him of doing unsafe electrical work, taking customers' money and leaving jobs unfinished.
The News 4 WOAI Trouble Shooters were there when that contractor finally faced a judge. It's a follow-up to Trouble Shooter Jaie Avila's undercover sting to catch electricians working without a license.
When state investigators helped us put together that hidden camera sting last may, Hugo Guerra was the number 1 person they wanted to catch. Guerra always stayed a step ahead of them, until now.
It was inspectors with the city of San Antonio who finally got Hugo Guerra in court to face charges of doing shoddy electrical work without a license.
Two former customers took the stand against him. One of them was Jesse Negrete.
Last May, Negrete showed us what Hugo Guerra did to his property on the south side. Unfinished wiring, holes in the wall, and an un-grounded breaker box that was a fire hazard. The cost? More than $4,000.
"I'm really glad to see that the state and the city have been following up to prevent this from happening to other consumers," said Negrete.
At the time Guerra worked on Negrete's house, state inspectors had already sent him a cease and desist order, demanding that he stop doing unlicensed work.
When that didn't stop him, investigators with the Texas Department of Licensing and Regulation, asked the News 4 WOAI Trouble Shooters to help set up a hidden camera sting to catch unlicensed electrical contractors.
The sting caught about two dozen unlicensed contractors, but Hugo Guerra never showed up to the house.
He did show up at municipal court last week though. Trouble Shooter Jaie Avila caught up to him outside the courtroom and asked him about Jesse Negrete's house.
"He says that you basically took him for a lot of money and didn't finish the job," said Avila.
"No, I don't remember that," answered Guerra.
When asked if he is licensed to do electrical work, Guerra replied, "Yes."
But Guerra is not licensed by the city or state, to which he said, "Alright, well, that's why I'm here."
Guerra argued that as a licensed "apprentice", he was authorized to take on electrical work, but the city says he should have been fully licensed as an electrician, or at least supervised by one, to do the work legally.
Guerra was found guilty of five misdemeanor code violations and fined more than $2,300.
Most important to state and local inspectors though was publicizing Guerra's case, as a warning to San Antonio homeowners.
In Texas, electrical contractors are required to put their license numbers on their trucks, their advertising and any estimates they give you.
To work in San Antonio, they have to register with the city. You can call 207-1111 to check on their license. That number goes to the city's Development Services agency.
SAN ANTONIO - State investigators call him the "most wanted" unlicensed contractor in San Antonio. They accuse him of doing unsafe electrical work, taking customers' money and leaving jobs unfinished.
The News 4 WOAI Trouble Shooters were there when that contractor finally faced a judge. It's a follow-up to Trouble Shooter Jaie Avila's undercover sting to catch electricians working without a license.
When state investigators helped us put together that hidden camera sting last may, Hugo Guerra was the number 1 person they wanted to catch. Guerra always stayed a step ahead of them, until now.
It was inspectors with the city of San Antonio who finally got Hugo Guerra in court to face charges of doing shoddy electrical work without a license.
Two former customers took the stand against him. One of them was Jesse Negrete.
Last May, Negrete showed us what Hugo Guerra did to his property on the south side. Unfinished wiring, holes in the wall, and an un-grounded breaker box that was a fire hazard. The cost? More than $4,000.
"I'm really glad to see that the state and the city have been following up to prevent this from happening to other consumers," said Negrete.
At the time Guerra worked on Negrete's house, state inspectors had already sent him a cease and desist order, demanding that he stop doing unlicensed work.
When that didn't stop him, investigators with the Texas Department of Licensing and Regulation, asked the News 4 WOAI Trouble Shooters to help set up a hidden camera sting to catch unlicensed electrical contractors.
The sting caught about two dozen unlicensed contractors, but Hugo Guerra never showed up to the house.
He did show up at municipal court last week though. Trouble Shooter Jaie Avila caught up to him outside the courtroom and asked him about Jesse Negrete's house.
"He says that you basically took him for a lot of money and didn't finish the job," said Avila.
"No, I don't remember that," answered Guerra.
When asked if he is licensed to do electrical work, Guerra replied, "Yes."
But Guerra is not licensed by the city or state, to which he said, "Alright, well, that's why I'm here."
Guerra argued that as a licensed "apprentice", he was authorized to take on electrical work, but the city says he should have been fully licensed as an electrician, or at least supervised by one, to do the work legally.
Guerra was found guilty of five misdemeanor code violations and fined more than $2,300.
Most important to state and local inspectors though was publicizing Guerra's case, as a warning to San Antonio homeowners.
In Texas, electrical contractors are required to put their license numbers on their trucks, their advertising and any estimates they give you.
To work in San Antonio, they have to register with the city. You can call 207-1111 to check on their license. That number goes to the city's Development Services agency.
Builder, homeowner mediator gets thumbs up
Janet Elliott- Express-News AUSTIN — Ten lawmakers who rejected a recommendation to abolish the state agency that helps shield home builders from consumer lawsuits have received a total of at least half a million dollars in campaign contributions from builders since 2000.
Most of the money — $486,000 — came from Houston home builder Bob Perry. Another $22,050 was contributed by the Texas Association of Builders' political action committee.
Other builders may have donated individually, but none approximated the magnitude of Perry's contributions.
The members of the Sunset Advisory Commission — five representatives, five senators and two public members — agreed unanimously late Tuesday to recommend that the Legislature allow the Texas Residential Construction Commission to keep operating.
They rejected a staff recommendation to abolish the five-year-old agency because it is “fundamentally flawed” and doing consumers more harm than good. The staff said the agency prevents home buyers from suing builders for shoddy workmanship until the buyers complete a lengthy dispute-resolution process.
Alex Winslow of the consumer group Texas Watch said it would be naive to suggest that donations from special interests have no impact on legislative debates.
“We're talking about the largest campaign contributor in the state of Texas in Bob Perry, and certainly the home builders lobby is influential at the Capitol,” he said.
Perry would like to see the agency maintained but hasn't discussed the issue with Sunset Commission members, said his spokesman, Anthony Holm.
The commission decided the agency must resolve disputes more quickly — within 105 days instead of the current average of 136 days. Sen. Glenn Hegar, the commission's vice chairman, proposed the streamlined process as a way that homeowners could get to court faster.
Hegar, R-Katy, has received $64,500 in campaign contributions from builder Perry, including $45,000 in 2006 during his first Senate race. Hegar said he has met Perry only once and isn't influenced by his contributions.
“Contributions are not going to determine how I vote on something. People can believe that or not,” he said. “But I can't speak for the rest of the Legislature.”
It's the Legislature, coming into session in January, that will ultimately decide the future of the agency it created in 2003 at the behest of the home builders, who wanted a process to resolve complaints from consumers outside of the courtroom.
John Krugh, corporate counsel for Perry Homes, led a task force that crafted the legislation for the Texas Association of Builders. Krugh was appointed one of four builder representatives on the Residential Construction Commission in September 2003 by Gov. Rick Perry, who had received $100,000 in contributions less than a month earlier from Bob Perry. (The two are not related.)
Rep. Ruth Jones McClendon, a San Antonio Democrat who sits on the Sunset Commission, recommended a recovery fund to help compensate homeowners when builders go out of business. The commission rejected calls from consumer advocates to allow homeowners to bypass the agency and go directly to court.
Texas Watch's Winslow said the agency's dispute-resolution process must be made voluntary.
“For us, that's the bottom line,” he said.
Scott Norman, executive director of the Texas Association of Builders, said the industry is pleased that the Sunset Commission recognized the agency's value.
“We, like others, realize the agency needs to improve,” Norman said.
Most of the money — $486,000 — came from Houston home builder Bob Perry. Another $22,050 was contributed by the Texas Association of Builders' political action committee.
Other builders may have donated individually, but none approximated the magnitude of Perry's contributions.
The members of the Sunset Advisory Commission — five representatives, five senators and two public members — agreed unanimously late Tuesday to recommend that the Legislature allow the Texas Residential Construction Commission to keep operating.
They rejected a staff recommendation to abolish the five-year-old agency because it is “fundamentally flawed” and doing consumers more harm than good. The staff said the agency prevents home buyers from suing builders for shoddy workmanship until the buyers complete a lengthy dispute-resolution process.
Alex Winslow of the consumer group Texas Watch said it would be naive to suggest that donations from special interests have no impact on legislative debates.
“We're talking about the largest campaign contributor in the state of Texas in Bob Perry, and certainly the home builders lobby is influential at the Capitol,” he said.
Perry would like to see the agency maintained but hasn't discussed the issue with Sunset Commission members, said his spokesman, Anthony Holm.
The commission decided the agency must resolve disputes more quickly — within 105 days instead of the current average of 136 days. Sen. Glenn Hegar, the commission's vice chairman, proposed the streamlined process as a way that homeowners could get to court faster.
Hegar, R-Katy, has received $64,500 in campaign contributions from builder Perry, including $45,000 in 2006 during his first Senate race. Hegar said he has met Perry only once and isn't influenced by his contributions.
“Contributions are not going to determine how I vote on something. People can believe that or not,” he said. “But I can't speak for the rest of the Legislature.”
It's the Legislature, coming into session in January, that will ultimately decide the future of the agency it created in 2003 at the behest of the home builders, who wanted a process to resolve complaints from consumers outside of the courtroom.
John Krugh, corporate counsel for Perry Homes, led a task force that crafted the legislation for the Texas Association of Builders. Krugh was appointed one of four builder representatives on the Residential Construction Commission in September 2003 by Gov. Rick Perry, who had received $100,000 in contributions less than a month earlier from Bob Perry. (The two are not related.)
Rep. Ruth Jones McClendon, a San Antonio Democrat who sits on the Sunset Commission, recommended a recovery fund to help compensate homeowners when builders go out of business. The commission rejected calls from consumer advocates to allow homeowners to bypass the agency and go directly to court.
Texas Watch's Winslow said the agency's dispute-resolution process must be made voluntary.
“For us, that's the bottom line,” he said.
Scott Norman, executive director of the Texas Association of Builders, said the industry is pleased that the Sunset Commission recognized the agency's value.
“We, like others, realize the agency needs to improve,” Norman said.
Thứ Tư, 17 tháng 12, 2008
DA Watch: In Odessa, Ethnicity is a Threat to Society and It's a Law and Order Love Match
Quick! Someone call the Coen Brothers! I've got a pitch for them. And, it's based on FACT.
Okay, first: the Ector County District Attorney just transfered a case over to the Big Kahuna -- the Attorney General of the State of Texas -- so the Attorney General can represent the government in the penalty phase of a case that's already been tried twice.
That's just not done every day. (Feel the interest build ....)
Then, add to that the reason why: seems that the defendant, Mike Gonzales, was sentenced to death in a case where one of the government's expert witnesses actually testified to the jury (yep, it's on the record) that the guy's ethnicity was an indicator that he was a threat to society.
Ethnicity. You know, like he's ... hispanic. (Okay, we've got a villian.)
That's just not said out loud every day - and particularly, by an expert witness in sworn testimony. Oh - and this expert, Walter Quijano, isn't some zany hired gun they found in the classifieds somewhere. Oh, no no no.
Seems Walter Quijano used to be the chief psychologist for the Texas Department of Criminal Justice. That's right.
(Ironic twist: guy with surname of Quijano is swearing that ethnicity is a threat to society and apparently, offering himself of as proof of same. WHEN are the Coen Brothers calling me?????!!!)
The guy testifying that ethnicity means a danger to society (think about that) was the Big Kahuna over at the Department of Criminal Justice's psych dept. Yes, he was the Big Cheese over there. The Man with a Plan. The Chief. The Boss. The Top Dog.
And this crazzzeee guy has apparently given this same sworn testimony in around 6 other cases where men's lives were at stake (a jury has to determine that someone already convicted of murder is also a future threat to society before they can impose the death sentence).
I don't know about you, but I'm already pondering who would play this guy in the movie.
But hey! The story's not over.
Seems that over in Ector County, the first assistant D.A. (Jack McCoy's job in the original Law & Order series) is married to the lead investor (Lennie Briscoe's job, ditto) in Mr. Gonzales' case.
(Here comes the romantic sub-plot!)
So, the Ector County District Attorney, Bobby Bland (great name, let's keep it in the screenplay), asked the Attorney General's advice on Mr. Gonzales' case because he was concerned there might be some talk, since there's all this hoopla over in Collin County about a judge and a district attorney having a long term affair, all the while trying death penalty cases together. (Check out the earlier post on the Collin County Love Connection.)
According to the Houston Chronicle, the Ector County DA told them, "[t]he (attorney general) recommended that my office recuse itself from that case so there wouldn't be an affect on the case if it were to be appealed," Bland said.
Yeah, you think? (Who's gonna play this guy?)
Oh, and what's the latest on Mike Gonzales? Jury selection has been scheduled for April, and the Attorney General's office will be setting at the prosecution table.
Whew. I'm tellin ya -- I see Oscars here.
Source:
Houston Chronicle
http://www.chron.com/disp/story.mpl/ap/tx/6166357.html
Okay, first: the Ector County District Attorney just transfered a case over to the Big Kahuna -- the Attorney General of the State of Texas -- so the Attorney General can represent the government in the penalty phase of a case that's already been tried twice.
That's just not done every day. (Feel the interest build ....)
Then, add to that the reason why: seems that the defendant, Mike Gonzales, was sentenced to death in a case where one of the government's expert witnesses actually testified to the jury (yep, it's on the record) that the guy's ethnicity was an indicator that he was a threat to society.
Ethnicity. You know, like he's ... hispanic. (Okay, we've got a villian.)
That's just not said out loud every day - and particularly, by an expert witness in sworn testimony. Oh - and this expert, Walter Quijano, isn't some zany hired gun they found in the classifieds somewhere. Oh, no no no.
Seems Walter Quijano used to be the chief psychologist for the Texas Department of Criminal Justice. That's right.
(Ironic twist: guy with surname of Quijano is swearing that ethnicity is a threat to society and apparently, offering himself of as proof of same. WHEN are the Coen Brothers calling me?????!!!)
The guy testifying that ethnicity means a danger to society (think about that) was the Big Kahuna over at the Department of Criminal Justice's psych dept. Yes, he was the Big Cheese over there. The Man with a Plan. The Chief. The Boss. The Top Dog.
And this crazzzeee guy has apparently given this same sworn testimony in around 6 other cases where men's lives were at stake (a jury has to determine that someone already convicted of murder is also a future threat to society before they can impose the death sentence).
I don't know about you, but I'm already pondering who would play this guy in the movie.
But hey! The story's not over.
Seems that over in Ector County, the first assistant D.A. (Jack McCoy's job in the original Law & Order series) is married to the lead investor (Lennie Briscoe's job, ditto) in Mr. Gonzales' case.
(Here comes the romantic sub-plot!)
So, the Ector County District Attorney, Bobby Bland (great name, let's keep it in the screenplay), asked the Attorney General's advice on Mr. Gonzales' case because he was concerned there might be some talk, since there's all this hoopla over in Collin County about a judge and a district attorney having a long term affair, all the while trying death penalty cases together. (Check out the earlier post on the Collin County Love Connection.)
According to the Houston Chronicle, the Ector County DA told them, "[t]he (attorney general) recommended that my office recuse itself from that case so there wouldn't be an affect on the case if it were to be appealed," Bland said.
Yeah, you think? (Who's gonna play this guy?)
Oh, and what's the latest on Mike Gonzales? Jury selection has been scheduled for April, and the Attorney General's office will be setting at the prosecution table.
Whew. I'm tellin ya -- I see Oscars here.
Source:
Houston Chronicle
http://www.chron.com/disp/story.mpl/ap/tx/6166357.html
Thứ Ba, 16 tháng 12, 2008
Texas Pro Bono Services
Amarillo:
Legal Aid of NorthWest Texas – Equal Justice Volunteer Program
Local: (806) 373-6808 Fax: (806) 376-8056
Austin:
Volunteer Legal Services of Central Texas
Local: (512) 476-5550 Fax: (512) 322-0764
Beaumont:
Jefferson County Bar Association Pro Bono Program
Local: (409) 839-2332 Fax: (409) 784-5808
Corpus Christi:
Texas RioGrande Legal Aid – Volunteer Lawyers Project
Local: (361) 880-5400 Fax: (361) 883-7615
Dallas:
Dallas Volunteer Attorney Program
Local: (214) 748-1234 Fax: (214) 698-1106
Edinburg:
Hidalgo County Bar Association Pro Bono Project
Local: (956) 380-1691
El Paso:
Texas RioGrande Legal Aid Pro Bono Project
Local: (915) 585-5100 Fax: (915) 533-6826
Ft. Worth:
Legal Aid of NorthWest Texas – Equal Justice Volunteer Program
Local: (817) 336-3943 Fax: (817) 877-0804
Lubbock:
Legal Aid of NorthWest Texas – Equal Justice Volunteer Program
Local: (806) 763-4557 Fax: (806) 765-7201
Houston & Harris County Residents:
Houston Volunteer Lawyers Program
Local: (713) 228-0732 Fax: (713) 228-5826
Midland/ Odessa:
Legal Aid of NorthWest Texas – Equal Justice Volunteer Program
Local: (915) 686-0647 / (432) 332-1207 Fax: (915) 682-7907 / (432) 334-6848
San Antonio:
San Antonio Bar Association Pro Bono Project
Local: (210) 227-8822 Fax: (210) 271-3482
Statewide:Texas
Local: (512) 374-2710 Fax: (512) 447-3940
Legal Aid of NorthWest Texas – Equal Justice Volunteer Program
Local: (806) 373-6808 Fax: (806) 376-8056
Austin:
Volunteer Legal Services of Central Texas
Local: (512) 476-5550 Fax: (512) 322-0764
Beaumont:
Jefferson County Bar Association Pro Bono Program
Local: (409) 839-2332 Fax: (409) 784-5808
Corpus Christi:
Texas RioGrande Legal Aid – Volunteer Lawyers Project
Local: (361) 880-5400 Fax: (361) 883-7615
Dallas:
Dallas Volunteer Attorney Program
Local: (214) 748-1234 Fax: (214) 698-1106
Edinburg:
Hidalgo County Bar Association Pro Bono Project
Local: (956) 380-1691
El Paso:
Texas RioGrande Legal Aid Pro Bono Project
Local: (915) 585-5100 Fax: (915) 533-6826
Ft. Worth:
Legal Aid of NorthWest Texas – Equal Justice Volunteer Program
Local: (817) 336-3943 Fax: (817) 877-0804
Lubbock:
Legal Aid of NorthWest Texas – Equal Justice Volunteer Program
Local: (806) 763-4557 Fax: (806) 765-7201
Houston & Harris County Residents:
Houston Volunteer Lawyers Program
Local: (713) 228-0732 Fax: (713) 228-5826
Midland/ Odessa:
Legal Aid of NorthWest Texas – Equal Justice Volunteer Program
Local: (915) 686-0647 / (432) 332-1207 Fax: (915) 682-7907 / (432) 334-6848
San Antonio:
San Antonio Bar Association Pro Bono Project
Local: (210) 227-8822 Fax: (210) 271-3482
Statewide:Texas
Local: (512) 374-2710 Fax: (512) 447-3940
Thứ Hai, 15 tháng 12, 2008
Hints on how to hire a family law (divorce) lawyer in Harris County
Before hiring a family law (aka divorce) lawyer to represent you, you need to take a deep breath. You need to calm down. If you don't calm down, you will probably have a heart attack before your case is over.
You need to objectively try to determine your specific goal(s) or objective(s) you want to accomplish.
Ending a relationship is similar to a death. It is difficult and tramatic. Many people don't think clearly. Often the final result is not anything that you could have anticipated at the beginning of the process.
No attorney can make all of the decisions for you. This is YOUR LIFE! You should view your attorney as your advocate and guide. You need to be actively involved in your family law case. I refuse to make the final decision for clients. Why? Because I don't want them to blame me later. Most people that hire a family law attorney are in a very stressful period and they are not thinking clearly.
Gather as much of your financial and other information as possible before you go to see your lawyer. This includes tax returns and schedules, financial statements, budget documents and the like from at least the last five (5) years. The more paperwork the better. Often during a divorce, papers "disappear". It is often time consuming and expensive to replace them.
I encourage clients to keep a "diary" for me to read on what is going on. I prefer that it be typed. If it was prepared for me, then attorney-client privilege attaches. However, if they pass it around, there is no privilege.
Many attorneys offer a free short consultation in person or by phone. A free consultation is a chance for you to determine if you have confidence in this attorney. If you don't like the person when you first meet them -- don't hire them. Keep looking for someone that makes you feel comfortable. Do they let you finish your sentences? Do they get angry if you ask questions? Do they listen to you? How do you feel when talking to this attorney? Are you intimidated? I once considered hiring an attorney with an excellent reputation. He whispered and I could not hear him. It drove me crazy. I did not hire him. The consultation also gives ME the opportunity to determine if I want YOU as a client. Yes, I've been known to turn people away. If I believe I'm not the best attorney for them or that they are totally unrealistic, I refer them to someone else. One man had hidden a lot of money and he told me that he planned to lie on the witness stand under oath if we went to trial. I did not take him as a client.
Make sure your Legal Services Agreement (aka "legal contract") is in writing, that you understand it BEFORE you sign it, and that you understand how you will pay your bill. You should receive a copy of the Legal Services Agreement. My LSA is 3 pages long and written in plain English. I've seen some LSA that are 8-10 pages and they seemed very intimidating. If the attorney won't explain it to you if you have questions, then I'd look elsewhere. I don't "negotiate" my LSA. One lady tried to re-write my LSA. I told her to look elsewhere for an attorney.
If it is a "flat-rate" case, find out what is included in a flat-rate case. Often a person ends up paying more money when they try to do it the cheapest way. Remember, you get what you pay for. If this cheap attorney does not work out, plan on paying a lot more to have an experienced attorney "fix" the case! Yes, I often get people calling me back 6-9 months later after they hired the "cheap" attorney and they end up paying me a lot more than my first quote to fix the mess the "cheap" attorney made.
Be aware that in family law cases the attorneys are NOT allowed to take a percentage of what is recovered for you in a divorce case, so expect to pay by the hour. We don't do "contigency" cases in family law. It's not allowed in the State of Texas.
Prices vary dramatically. Board certified attorneys fees are much higher than non-board certified attorneys. If you make $20,000/year, you are not going to be able to afford to pay an attorney $500 per hour. Be realistic, shop around.
I often get referrals from the opposing party in a divorce. I think that is a very high compliment! A newly licensed attorney should charge less than someone with more experience. You can visit the State Bar of Texas website and determine when an attorney was licensed to practice law within the State of Texas. A newly licensed attorney should be charging under $250 per hour. After 17 years of experience, my highest hourly rate is $250 per hour. For mediations, I cut my rate to $150 an hour voluntarily in order to encourage mediation.
Some attorneys charge less if you talk to their paralegal or legal secretary. Be sure to find out who you will be talking to when you call the office. If you don't like the paralegal or secretary, then you need to plan on always talking to your attorney and paying for his/her time.
Write out your questions, then make an appointment with the lawyer and take notes about what you're told.
If there are billing questions, talk to the person who handles the billing. If you don't understand the first statement you receive, call the office. Most attorneys charge for their time -- emails, phone calls, office visits, research, court time, etc.
Some attorneys charge for parking at the courthouse, photocopies, faxing, postage, deliveries, certified mail, etc. This can add up. Be sure to understand how you are going to be charged for these non-legal services. Also, some attorneys charge a minimum for each court appearance -- even if they only appear in the courtroom for 5 minutes you might be billed for 2-4 hours of their time. This adds up quickly -- so ask if there is a MINIMUM court appearance fee! I normally charge an hour for a short court appearance. Some attorneys can do 3 court appearances in one hour in one morning yet charge their clients for 6 hours of work!
If you don't understand something, ask. And if you have a problem with the way your lawyer is handling your case, also ask. Don't allow the issue to fester. If you don't like the attorney, fire the attorney in writing and get the attorney to withdraw as your attorney of record. The court file is a public document and you can go to the courthouse and review your file.
Your lawyer should keep you reasonably informed about the status of your case by sending you copies of what goes out of the office. Remember that calls just to find out what's going on can get expensive. Many attorneys are in court all day or in mediation all day. Don't expect to receive a call back immediately! Attorneys are not allowed to have their cell phones on in any courtroom. I had one client that demanded I call back immediately when I got the call -- she wasn't very happy when I checked my messages after an evening mediation and called her back after 11 pm that night!
Don't second-guess your lawyer based on the advice of friends and family. I have fired clients for "shopping" advice. If you don't have confidence in your attorney -- get a new one!
Remember that your lawyer works for you. After you have been fully informed and have reviewed your options, you and your lawyer should decide upon a course of action suitable to your situation.
Don't be surprised if your case takes time to get resolved. Although everyone is in a hurry to complete his/her case, you will have no control over scheduling issues that can keep your case in limbo for a long time.
Anticipate going to mediation. It's a local rule in Harris County that most cases must to go mediation before trial. Most cases settle at mediation. I estimate that most family law cases set at or before mediation. Only approximately 10% of all cases filed go to trial. If you want a jury trial, plan on spending at least $25,000 and anticipate to your case going on for over a year.
If your lawyer promises or guarantees you a result, I would look for another attorney. No family law attorney should guarantee or promise a certain result.
You expect to get paid for the work you do. Your plumber expects to get paid. So do I. I bill fairly at a reasonable rate. But I don't work for free. I do plenty of pro bono legal services. I offer payment plans. I work hard for my clients. In fact, I get angry when I care more about a case than the client.
You need to objectively try to determine your specific goal(s) or objective(s) you want to accomplish.
Ending a relationship is similar to a death. It is difficult and tramatic. Many people don't think clearly. Often the final result is not anything that you could have anticipated at the beginning of the process.
No attorney can make all of the decisions for you. This is YOUR LIFE! You should view your attorney as your advocate and guide. You need to be actively involved in your family law case. I refuse to make the final decision for clients. Why? Because I don't want them to blame me later. Most people that hire a family law attorney are in a very stressful period and they are not thinking clearly.
Gather as much of your financial and other information as possible before you go to see your lawyer. This includes tax returns and schedules, financial statements, budget documents and the like from at least the last five (5) years. The more paperwork the better. Often during a divorce, papers "disappear". It is often time consuming and expensive to replace them.
I encourage clients to keep a "diary" for me to read on what is going on. I prefer that it be typed. If it was prepared for me, then attorney-client privilege attaches. However, if they pass it around, there is no privilege.
Many attorneys offer a free short consultation in person or by phone. A free consultation is a chance for you to determine if you have confidence in this attorney. If you don't like the person when you first meet them -- don't hire them. Keep looking for someone that makes you feel comfortable. Do they let you finish your sentences? Do they get angry if you ask questions? Do they listen to you? How do you feel when talking to this attorney? Are you intimidated? I once considered hiring an attorney with an excellent reputation. He whispered and I could not hear him. It drove me crazy. I did not hire him. The consultation also gives ME the opportunity to determine if I want YOU as a client. Yes, I've been known to turn people away. If I believe I'm not the best attorney for them or that they are totally unrealistic, I refer them to someone else. One man had hidden a lot of money and he told me that he planned to lie on the witness stand under oath if we went to trial. I did not take him as a client.
Make sure your Legal Services Agreement (aka "legal contract") is in writing, that you understand it BEFORE you sign it, and that you understand how you will pay your bill. You should receive a copy of the Legal Services Agreement. My LSA is 3 pages long and written in plain English. I've seen some LSA that are 8-10 pages and they seemed very intimidating. If the attorney won't explain it to you if you have questions, then I'd look elsewhere. I don't "negotiate" my LSA. One lady tried to re-write my LSA. I told her to look elsewhere for an attorney.
If it is a "flat-rate" case, find out what is included in a flat-rate case. Often a person ends up paying more money when they try to do it the cheapest way. Remember, you get what you pay for. If this cheap attorney does not work out, plan on paying a lot more to have an experienced attorney "fix" the case! Yes, I often get people calling me back 6-9 months later after they hired the "cheap" attorney and they end up paying me a lot more than my first quote to fix the mess the "cheap" attorney made.
Be aware that in family law cases the attorneys are NOT allowed to take a percentage of what is recovered for you in a divorce case, so expect to pay by the hour. We don't do "contigency" cases in family law. It's not allowed in the State of Texas.
Prices vary dramatically. Board certified attorneys fees are much higher than non-board certified attorneys. If you make $20,000/year, you are not going to be able to afford to pay an attorney $500 per hour. Be realistic, shop around.
I often get referrals from the opposing party in a divorce. I think that is a very high compliment! A newly licensed attorney should charge less than someone with more experience. You can visit the State Bar of Texas website and determine when an attorney was licensed to practice law within the State of Texas. A newly licensed attorney should be charging under $250 per hour. After 17 years of experience, my highest hourly rate is $250 per hour. For mediations, I cut my rate to $150 an hour voluntarily in order to encourage mediation.
Some attorneys charge less if you talk to their paralegal or legal secretary. Be sure to find out who you will be talking to when you call the office. If you don't like the paralegal or secretary, then you need to plan on always talking to your attorney and paying for his/her time.
Write out your questions, then make an appointment with the lawyer and take notes about what you're told.
If there are billing questions, talk to the person who handles the billing. If you don't understand the first statement you receive, call the office. Most attorneys charge for their time -- emails, phone calls, office visits, research, court time, etc.
Some attorneys charge for parking at the courthouse, photocopies, faxing, postage, deliveries, certified mail, etc. This can add up. Be sure to understand how you are going to be charged for these non-legal services. Also, some attorneys charge a minimum for each court appearance -- even if they only appear in the courtroom for 5 minutes you might be billed for 2-4 hours of their time. This adds up quickly -- so ask if there is a MINIMUM court appearance fee! I normally charge an hour for a short court appearance. Some attorneys can do 3 court appearances in one hour in one morning yet charge their clients for 6 hours of work!
If you don't understand something, ask. And if you have a problem with the way your lawyer is handling your case, also ask. Don't allow the issue to fester. If you don't like the attorney, fire the attorney in writing and get the attorney to withdraw as your attorney of record. The court file is a public document and you can go to the courthouse and review your file.
Your lawyer should keep you reasonably informed about the status of your case by sending you copies of what goes out of the office. Remember that calls just to find out what's going on can get expensive. Many attorneys are in court all day or in mediation all day. Don't expect to receive a call back immediately! Attorneys are not allowed to have their cell phones on in any courtroom. I had one client that demanded I call back immediately when I got the call -- she wasn't very happy when I checked my messages after an evening mediation and called her back after 11 pm that night!
Don't second-guess your lawyer based on the advice of friends and family. I have fired clients for "shopping" advice. If you don't have confidence in your attorney -- get a new one!
Remember that your lawyer works for you. After you have been fully informed and have reviewed your options, you and your lawyer should decide upon a course of action suitable to your situation.
Don't be surprised if your case takes time to get resolved. Although everyone is in a hurry to complete his/her case, you will have no control over scheduling issues that can keep your case in limbo for a long time.
Anticipate going to mediation. It's a local rule in Harris County that most cases must to go mediation before trial. Most cases settle at mediation. I estimate that most family law cases set at or before mediation. Only approximately 10% of all cases filed go to trial. If you want a jury trial, plan on spending at least $25,000 and anticipate to your case going on for over a year.
If your lawyer promises or guarantees you a result, I would look for another attorney. No family law attorney should guarantee or promise a certain result.
You expect to get paid for the work you do. Your plumber expects to get paid. So do I. I bill fairly at a reasonable rate. But I don't work for free. I do plenty of pro bono legal services. I offer payment plans. I work hard for my clients. In fact, I get angry when I care more about a case than the client.
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