When you first start contemplating a divorce in Texas, you will have the ability to do things with financial accounts that you might not be able to do once the divorce begins. Once the divorce has been filed, you are not allowed to divert money, change designations, or the like. You should also be aware that your spouse will have access to the joint bank (checking, savings, or mutual fund) accounts just like you and when discussions about attorneys come up, it is not uncommon for one spouse to empty all of the money out of the joint bank account for these types of needs. Is there anything that you can do about this? Probably not. During a divorce, the spouses are generally permitted to make expenditures for: (1) reasonable living expenses (such as food, shelter, etc), and (2) attorney's fees. However, you should at least have your own contingency plan.
The only way to ensure that you will have access to funds is to open up your own bank account and start having your paycheck deposited to this account. It is not a bad idea to attempt to get both you and your spouse (by agreement) to open up separate checking / savings account and a separate credit card account. You can even agree (in writing or otherwise) that these accounts are the separate responsibility of the respective spouse. Close the joint account (or keep a nominal amount of money in it) so that there are less assets to ultimately divide by the Court.
If this can be done by agreement, then there will be less of an opportunity for a misunderstanding. If you change where your paycheck gets deposited without informing your spouse, understand that you might be starting a "war." You should be very careful about any actions like this that can backfire. However, if you can do this without inciting additional problems, then this is not a bad idea. In any event, you should at least open up a separate account and ensure that you have enough funds in that account to get by for a couple of months and to obtain an attorney if this becomes necessary. Otherwise, you may not be able to survive without help from family or friends, and you might end up having to sacrifice assets in order to make it for a couple of months. Another alternative is to have your attorney seek the disbursement of funds for living expenses and attorney's fees from other community assets. These types of motions, however, can end up being expensive.
If you expect your spouse to remain civil during the divorce, then this might not be a big deal, but understand that your spouse will have access to each of the joint accounts and during a highly contested divorce, it is not uncommon for one spouse to withdraw money from accounts (for legitimate attorney's fees or for other things) and they can then start hiding the cash. If you have questions about the preparation of specific agreements and other questions about how to deal with joint accounts, you should seek the advice of an experienced divorce attorney.
Thứ Bảy, 31 tháng 1, 2009
Austin Divorce Lawyer Tip: What should we do about the Safe Deposit Box during a Divorce?
First of all, safe-deposit boxes are not themselves assets -- it is the items inside the box that are assets. If the safe-deposit box has joint access by both spouses, then you should at least inventory the contents at the time of (or immediately prior to) the initiation of a divorce. It is not a bad idea to take photographs and to take notes on what is in the box so that you have proof. You should date the notes and make them as detailed as possible. It is not a bad idea to get a copy of the log sheet from the bank showing the date when you did the inventory. It is also very important to have a neutral third party go with you and act as a witness. The third party neutral can then initial the inventory and verify the contents. If you cannot find such a person (preferably not a relative or friend who could be accused of being "biased"), someone like a bank employee might even be a good person to use for this. By doing this, you will be able to prove the existence of items in the event of a dispute. If the items are very valuable, it might not be a bad idea to take an independent, third party appraiser with you so that you will have someone who can testify as to value in case the items "disappear." You can usually find someone like a local auctioneer who can perform these types of services.
As long as there is no temporary restraining order or temporary injunction in place, you could potentially take the items and put them into your own safe-deposit box or other safe location so as to limit access by your spouse. If the items are your separate property, (i.e. - the items were purchased prior to marriage, or obtained by gift or inheritance), these actions might not be view by the Judge to be unreasonable. However, if there is a temporary restraining order or a temporary injunction in place (or as we have in Austin / Travis County, Texas a Standing Temporary Order) then you should not and cannot take the items (hide or secrete them) without Court approval. You should keep in mind; however, that if you start taking and hiding assets of the marriage, your spouse might start doing the same and this would not be a good thing.
As long as there is no temporary restraining order or temporary injunction in place, you could potentially take the items and put them into your own safe-deposit box or other safe location so as to limit access by your spouse. If the items are your separate property, (i.e. - the items were purchased prior to marriage, or obtained by gift or inheritance), these actions might not be view by the Judge to be unreasonable. However, if there is a temporary restraining order or a temporary injunction in place (or as we have in Austin / Travis County, Texas a Standing Temporary Order) then you should not and cannot take the items (hide or secrete them) without Court approval. You should keep in mind; however, that if you start taking and hiding assets of the marriage, your spouse might start doing the same and this would not be a good thing.
Austin Divorce Lawyer Tip: Post-Divorce Planning with Insurance and Retirement Benefits.
Oftentimes divorce attorneys are focused on getting all of the divorce issues handled and do not discuss estate planning issues with you. At the inception of any Divorce, it is recommended that you seek the advice of an experienced Estate Planning Attorney to update your will, living will, medical powers of attorney, and durable powers of attorney. Although Texas law provides that after a Divorce, beneficiary designations as to insurance proceeds and retirement benefits are treated as having been automatically revoked under Texas Family Code sections 9.301 and 9.302, you should not depend upon this. The insurance company or Plan Administrator will not be liable for paying in accordance with your instructions, unless they get prior notice of the claim of another before distributing the funds and then fail to interplead the funds into the registry of the court. Also, you may not have considered some of these issues:
What if a spouse should die during the pendency of the Divorce, will my spouse get all of my life insurance and retirement benefits?
What happens after we have settled our case (by mediation, negotiation, in a Rule 11 Agreement, or otherwise), but before the divorce is actually finalized?
Do you want your spouse making medical decisions if you should get seriously injured?
Do you want your spouse to have access to all of your assets, bank accounts, safe deposit box, and mutual funds in the event of your incapacity?
You should also be aware that once the Divorce case has been filed, you may not be permitted to change these designations due to a Temporary Restraining Order, Temporary Injunction, Local Rule, or as we have in Austin, Texas, the TRAVIS COUNTY STANDING ORDER REGARDING CHILDREN, PROPERTY AND CONDUCT OF THE PARTIES. As a result, you need to make these considerations prior to the time the Divorce is filed.
This is where divorce law intersects with estate planning and probate law. Anyone who may be planning on a divorce should think about these issues and consult their Divorce Attorney to come up with a plan to ensure that these matters are addressed.
What if a spouse should die during the pendency of the Divorce, will my spouse get all of my life insurance and retirement benefits?
What happens after we have settled our case (by mediation, negotiation, in a Rule 11 Agreement, or otherwise), but before the divorce is actually finalized?
Do you want your spouse making medical decisions if you should get seriously injured?
Do you want your spouse to have access to all of your assets, bank accounts, safe deposit box, and mutual funds in the event of your incapacity?
You should also be aware that once the Divorce case has been filed, you may not be permitted to change these designations due to a Temporary Restraining Order, Temporary Injunction, Local Rule, or as we have in Austin, Texas, the TRAVIS COUNTY STANDING ORDER REGARDING CHILDREN, PROPERTY AND CONDUCT OF THE PARTIES. As a result, you need to make these considerations prior to the time the Divorce is filed.
This is where divorce law intersects with estate planning and probate law. Anyone who may be planning on a divorce should think about these issues and consult their Divorce Attorney to come up with a plan to ensure that these matters are addressed.
Thứ Năm, 29 tháng 1, 2009
Insurance Coverage under COBRA after a Texas Divorce.
Pursuant to Federal statute (specifically, the Consolidated Omnibus Budget Reconciliation Act of 1985 or "COBRA"), you should keep in mind that a spouse (and dependent child) who is covered under the insurance policy of an employee may have the right to so-called COBRA "continuation coverage" after a Divorce is finalized. In order to qualify, the employee must: (1) work for an employer who has 20 or more employees, (2) file an application with the employer no later than sixty (60) days after the divorce is finalized, and (3) keep up the premium payments, which cannot be two percent (2%) more than the original premium payments.
COBRA coverage can become especially important for spouses with significant pre-existing conditions that might not be covered with a new insurance carrier. As a result, as long as the coverage elections are timely made, the former spouse cannot be required to take a physical exam or otherwise qualify for the continued coverage. The continuation coverage has the potential to last for three (3) years after the Divorce is finalized. After that, the former spouse still may be able to purchase "conversion coverage" under COBRA; however, with the conversion policy, the employer or insurance carrier can charge significantly higher rates.
These rights only apply in situations of qualifying employees (those policies purchased through work or an association) and not with an individual plan, or those that you purchase on your own. Individual plans are generally not subject to the COBRA provisions. As a result, once you lose that coverage, you won't be able to get an extension.
COBRA Insurance coverage generally ends when: (1) the last date of maximum coverage endes; (2) premiums are not paid on a timely basis; (3) the employer ceases to maintain any group health plan, (4) you obtain coverage through another employer group health plan that does not have any exclusions or limitations with respect to a pre-existing condition of a beneficiary; (5) you move outside the health plan coverage area; and, (5) a beneficiary is entitled to Medicare benefits.
COBRA coverage can become especially important for spouses with significant pre-existing conditions that might not be covered with a new insurance carrier. As a result, as long as the coverage elections are timely made, the former spouse cannot be required to take a physical exam or otherwise qualify for the continued coverage. The continuation coverage has the potential to last for three (3) years after the Divorce is finalized. After that, the former spouse still may be able to purchase "conversion coverage" under COBRA; however, with the conversion policy, the employer or insurance carrier can charge significantly higher rates.
These rights only apply in situations of qualifying employees (those policies purchased through work or an association) and not with an individual plan, or those that you purchase on your own. Individual plans are generally not subject to the COBRA provisions. As a result, once you lose that coverage, you won't be able to get an extension.
COBRA Insurance coverage generally ends when: (1) the last date of maximum coverage endes; (2) premiums are not paid on a timely basis; (3) the employer ceases to maintain any group health plan, (4) you obtain coverage through another employer group health plan that does not have any exclusions or limitations with respect to a pre-existing condition of a beneficiary; (5) you move outside the health plan coverage area; and, (5) a beneficiary is entitled to Medicare benefits.
Ten Ways to Help Your Children Get Through Your Divorce
1) Do not insult or talk bad about your (soon-to-be-ex) spouse in front of, to, or around your children. This is harmful and detrimental to your children. In extreme cases, it is sometimes referred to as "Parental Alienation Syndrome (PAS)." You should encourage your spouse to be the best parent that he or she can be, even if your spouse was not a particularly good husband or wife. Children need both parents; driving a wedge between your child and the other parent will do grave damage to both or may backfire and cause the child to resent you and defend the other parent. Sometimes the other parent simply withdraws from the relationship altogether; only in the rarest of circumstances is this good for your child. The majority of children charged with crimes in our juvenile justice system do not have the active involvement of both parents.
2) Do not involve your children in legal discussions. The financial and legal details of the divorce will only serve to upset and distress your children. Children should not be permitted to (over) hear your arguments and discussions about legal, financial, or emotional issues relating to the divorce. Children should not be informed about what is going on in court and generally should not be asked to make a decision to choose one parent over the other. Your children should not be encouraged to shuttle messages back and forth between their parents; instead, you should communicate directly, politely, and calmly with the other parent about any parenting issues (even if your spouse is rude or unresponsive with you). Never bring your children to Court without prior Court approval.
3) Do not dump your emotional baggage on your children. If you are angry with your spouse, have resentment toward your spouse, or are saddened by his or her actions, you should not discuss these extreme emotions with your children. Your child is not your friend, buddy, and certainly not your counselor or therapist. You are the parent and your children expect you to be in control at all times. If you are out of control, you cannot parent the way you should. Your children need you to be engaged most of all during this emotionally difficult time. If you need to discuss your feelings, hire a counselor or speak with a close friend or adult relative.
4) Reassure your children that both parents love them; tell them directly that the divorce is not their fault and that everything will be okay. In most cases, you should attempt to come up with a game plan (or "parenting plan") so that both parents can be actively involved in your children’s activities. Also, there are “parenting coordination classes” such as “Putting Kids First,” that can be taken to help you work with the other parent for the betterment of the children. Discuss any potential plans or agreements with your respective attorneys, and seek their input, but do not sign anything without talking to your lawyer first.
5) Try to maintain the status quo during the divorce as much as possible. The children have grown to expect such routines from you, and you will cause unnecessary stress if you decide to change all things that are familiar to them. If the divorce does not require moving them out of their house, changing schools, or moving to another city, it is not a good time to make these or other changes. If your children have friends they like to play with, family members that they want to see, or adults involved in their lives (that you approved of prior to the divorce), do not cut off those relationships simply because they may be "more friendly" with (or related to) your spouse. Your children should be encouraged to contact these people by telephone or email if they cannot visit in person. You must be the bigger person about these matters. Take the high road, rather than the low one that is so often traveled.
6) Never ever, ever introduce a new "significant other" into your children's lives during or even shortly after the divorce. This will confuse them, upset them, and will make them very angry and resentful. Take this time to concentrate on the children and building your relationship with them, rather than a new love interest.
7) Children should not be exposed to secondary smoke from tobacco. Children should not be present during the use or possession of illegal drugs. Parents must ensure that children are not transported in a motor vehicle by any person under the influence of alcohol or drugs. Your children deserve to be safe and secure.
8) Parents should discuss, agree, and then mutually enforce appropriate limitations concerning the use of cell phones, computers, video games, television, and similar electronic devices or modes of communication. You should include what ratings are acceptable for television, movies, and video games, as well as appropriate curfews or bedtimes.
9) Do not criticize the other parent. Do not permit, encourage, or allow your children to criticize the other parent. The other parent's failures in life (financial, psychological, relational, physical, emotional limitations, or legal problems) should not be discussed with the children, unless it is first brought up by the child, and only then after a discussion is had with the other parent about the nature and extent of the disclosures to be made to the children.
10) All children should have a place for their belongings in a room separate from their parents, at each parents' location. The children should be allowed to take a reasonable amount of belongings with them to the other parent’s home and they should always be permitted to return with those items that were originally in his or her possession, unless a prior agreement is made with the other parent in advance. The child must be permitted to have photographs, correspondence, and personal items from both parents in their personal space.
2) Do not involve your children in legal discussions. The financial and legal details of the divorce will only serve to upset and distress your children. Children should not be permitted to (over) hear your arguments and discussions about legal, financial, or emotional issues relating to the divorce. Children should not be informed about what is going on in court and generally should not be asked to make a decision to choose one parent over the other. Your children should not be encouraged to shuttle messages back and forth between their parents; instead, you should communicate directly, politely, and calmly with the other parent about any parenting issues (even if your spouse is rude or unresponsive with you). Never bring your children to Court without prior Court approval.
3) Do not dump your emotional baggage on your children. If you are angry with your spouse, have resentment toward your spouse, or are saddened by his or her actions, you should not discuss these extreme emotions with your children. Your child is not your friend, buddy, and certainly not your counselor or therapist. You are the parent and your children expect you to be in control at all times. If you are out of control, you cannot parent the way you should. Your children need you to be engaged most of all during this emotionally difficult time. If you need to discuss your feelings, hire a counselor or speak with a close friend or adult relative.
4) Reassure your children that both parents love them; tell them directly that the divorce is not their fault and that everything will be okay. In most cases, you should attempt to come up with a game plan (or "parenting plan") so that both parents can be actively involved in your children’s activities. Also, there are “parenting coordination classes” such as “Putting Kids First,” that can be taken to help you work with the other parent for the betterment of the children. Discuss any potential plans or agreements with your respective attorneys, and seek their input, but do not sign anything without talking to your lawyer first.
5) Try to maintain the status quo during the divorce as much as possible. The children have grown to expect such routines from you, and you will cause unnecessary stress if you decide to change all things that are familiar to them. If the divorce does not require moving them out of their house, changing schools, or moving to another city, it is not a good time to make these or other changes. If your children have friends they like to play with, family members that they want to see, or adults involved in their lives (that you approved of prior to the divorce), do not cut off those relationships simply because they may be "more friendly" with (or related to) your spouse. Your children should be encouraged to contact these people by telephone or email if they cannot visit in person. You must be the bigger person about these matters. Take the high road, rather than the low one that is so often traveled.
6) Never ever, ever introduce a new "significant other" into your children's lives during or even shortly after the divorce. This will confuse them, upset them, and will make them very angry and resentful. Take this time to concentrate on the children and building your relationship with them, rather than a new love interest.
7) Children should not be exposed to secondary smoke from tobacco. Children should not be present during the use or possession of illegal drugs. Parents must ensure that children are not transported in a motor vehicle by any person under the influence of alcohol or drugs. Your children deserve to be safe and secure.
8) Parents should discuss, agree, and then mutually enforce appropriate limitations concerning the use of cell phones, computers, video games, television, and similar electronic devices or modes of communication. You should include what ratings are acceptable for television, movies, and video games, as well as appropriate curfews or bedtimes.
9) Do not criticize the other parent. Do not permit, encourage, or allow your children to criticize the other parent. The other parent's failures in life (financial, psychological, relational, physical, emotional limitations, or legal problems) should not be discussed with the children, unless it is first brought up by the child, and only then after a discussion is had with the other parent about the nature and extent of the disclosures to be made to the children.
10) All children should have a place for their belongings in a room separate from their parents, at each parents' location. The children should be allowed to take a reasonable amount of belongings with them to the other parent’s home and they should always be permitted to return with those items that were originally in his or her possession, unless a prior agreement is made with the other parent in advance. The child must be permitted to have photographs, correspondence, and personal items from both parents in their personal space.
Thứ Tư, 28 tháng 1, 2009
Parent Education and Family Stabilization Course for Texas Divorces
In 2005, the Texas Legislature added a provision relating to the taking of a Parent Education and Family Stabilization course. See Texas Family Code Section 105.009. Although the courses are not mandatory unless ordered by the Court (although some counties now have local rules requiring that the parties take the course), many people believe that these courses are very productive and help people to focus their attention on what is truly best for their children. The Austin / Travis County Courts have not yet required the course. Of the clients that we have had take these courses, many say that the courses are helpful and report a positive experience. The courses are usually between four and twelve hours in length and are "designed to educate and assist parents with regard to the consequeof divorce on parents and children."
Pusuant to Texas statute, the course must include information on the following issues:
(1) the emotional effects of divorce on parents;
(2) the emotional and behavioral reactions to divorce by young children and adolescents;
(3) parenting issues relating to the concerns and needs of children at different development stages;
(4) stress indicators in young children and adolescents;
(5) conflict management;
(6) family stabilization through development of a coparenting relationship;
(7) the financial responsibilities of parenting;
(8) family violence, spousal abuse, and child abuse and neglect; and
(9) the availability of community services and resources.
When one of the parties to a contested custody case is particularly difficult or is not doing what is best for the children, one option is to request that the Court order that party to take the course. You should be prepared for the likelihood that the Court will simply order both of the parties to take the course, when one party requests. If you have more questions about the Parent Education and Family Stabilization Court you should seek the advise of an experienced family law attorney.
Pusuant to Texas statute, the course must include information on the following issues:
(1) the emotional effects of divorce on parents;
(2) the emotional and behavioral reactions to divorce by young children and adolescents;
(3) parenting issues relating to the concerns and needs of children at different development stages;
(4) stress indicators in young children and adolescents;
(5) conflict management;
(6) family stabilization through development of a coparenting relationship;
(7) the financial responsibilities of parenting;
(8) family violence, spousal abuse, and child abuse and neglect; and
(9) the availability of community services and resources.
When one of the parties to a contested custody case is particularly difficult or is not doing what is best for the children, one option is to request that the Court order that party to take the course. You should be prepared for the likelihood that the Court will simply order both of the parties to take the course, when one party requests. If you have more questions about the Parent Education and Family Stabilization Court you should seek the advise of an experienced family law attorney.
From $80,000 a year to eviction: Hard times in America
(From CNN) -- Amber Easton has gone from $80,000 a year in salary to scrambling for work. At a time in her life when she should be scaling the corporate ladder, she has instead spiraled into a deep depression. She recently lost her car and now faces eviction from her apartment.
Just last week, the 35-year-old longtime working professional attended two job fairs with friends in the Detroit area. They stood in line for over three hours with hundreds of professionals of all types.
"It was a real eye-opener to see the caliber of people we were in line with -- very educated with vast skill sets," Easton said in an e-mail. "Afterwards, we went to the restaurant located in the same hotel and it was filled with unemployed professionals sharing their story, from engineers to graphic designers to marketing professionals."
Easton's saga began in July 2007 when she traded in her job as a corporate compliance officer to attend law school, what she thought would help advance her career. But after a year of law school, she decided it wasn't for her. By then, her old job was gone and the job market had shrunk.
"It's hard not to be depressed during a time like this," she wrote iReport.com. "I never imagined in a million years that I would be in such a situation at my age and at this point in my career. I am humiliated. I am praying for everyone else out there is who are facing the same problems."
She has applied to 70 different companies but gotten few leads. She recently went through a rigorous interview process for one job in another state, but to no avail. Share your economic survivor story
Every day, she searches for new job possibilities and every day results in more desperation. She estimates she's making $20,000 -- "if that" -- as a contract employee working from her home. "I just haven't made enough to keep up."
Her Detroit neighborhood a couple years ago was booming, she said, but now "it's like a ghost town around here."
"It's bad everywhere, but it's so, so bad here," she said.
Across the nation, people like Easton are feeling the pinch. Good jobs have evaporated. Former full-time employees are now working part-time contract positions just to get by.
Nearly 2.6 million jobs were lost during 2008, the highest yearly total since the end of World War II in 1945. This week alone, major corporations have announced more than 80,000 job cuts, bringing this year's total to well over 200,000.
Dr. Rosalind Dorlen is a clinical psychologist in Summit, New Jersey, an area she calls a "Wall Street ghetto" where formerly high-flying executives are out of work.
"Here, the people earn millions of dollars with bonuses that are astronomical," said Dorlen, who is also the public education coordinator in New Jersey for the American Psychological Association. "There is a demoralizing aspect to having a huge salary and a huge bonus and then having to look for a job that is going to pay much, much less."
She added, "What I'm hearing is a terrible sense of betrayal, anxiety and people experiencing lots of stress." That, in turn, can lead to an increase in unhealthy coping behaviors, such as an uptick in alcohol consumption, unhealthy eating and worse sleeping habits.
Dorlen has several tips for people out of work:
• Don't panic;
• Find a support group, even if it's just an informal group of friends;
• Seek employment counseling when available;
• Be professional in your job hunt;
• Network with other professionals;
• Take time to exercise during hard times;
• Spend valuable time with your family.
On a practical note, she said people should contact their creditors to let them know the situation. She also advises people to do volunteer work and to cultivate a "spirit of optimism."
"Bad times pass, and it's sometimes hard to see that when you're in the throes of a terrible place," she said. "I think we do need to hold onto a spirit of optimism and a sense of confidence." See Top companies: They're hiring!
"I think we're getting mired in the gloom and doom, and we need to hold on to the fact that lots of people are working."
CNN's user-generated site, iReport.com, has been flooded with messages from people out of work. One woman held up her husband's résumé and said, "Please, please, please take him off my hands." Watch woman plead case for hubby
"My husband can knock out a honey-do list like nobody's business, and he meets my great, high standards every day. Don't let my husband slip through your hands. He would be a great addition to your team," the woman said under the headline "Wife Seeking Job for Husband."
In Delaware, Manoj Philip, 24, said he had a full-time job in 2007 with Agilent Technologies making about $55,000 a year, including all the perks and benefits that came with it. But in July 2007, he quit that job to pursue a career in real estate.
"I knew it wasn't going to be easy, but I didn't think it would be this tough," he said.
By September 2008, Philip needed a second income because of the withering housing market. He picked up a full-time contracting job and continues to do real estate about 20-30 hours per week.
It was a shock, he said, to return to full-time work while putting his real estate dreams on hold. "It took a lot for me to change that mental outlook. Because before I would've thought of it as something holding me back," Philip said. "But I don't look at it like that anymore."
He's since learned the value of living within his means, budgeting and making every dollar he spends count for something. "These are really important lessons to learn. I'm glad I learned it at such a young age."
In Detroit, Easton said she knows America will bounce back at some point, but "in the meantime, people are losing everything."
"That's what scares me," she said.
Just last week, the 35-year-old longtime working professional attended two job fairs with friends in the Detroit area. They stood in line for over three hours with hundreds of professionals of all types.
"It was a real eye-opener to see the caliber of people we were in line with -- very educated with vast skill sets," Easton said in an e-mail. "Afterwards, we went to the restaurant located in the same hotel and it was filled with unemployed professionals sharing their story, from engineers to graphic designers to marketing professionals."
Easton's saga began in July 2007 when she traded in her job as a corporate compliance officer to attend law school, what she thought would help advance her career. But after a year of law school, she decided it wasn't for her. By then, her old job was gone and the job market had shrunk.
"It's hard not to be depressed during a time like this," she wrote iReport.com. "I never imagined in a million years that I would be in such a situation at my age and at this point in my career. I am humiliated. I am praying for everyone else out there is who are facing the same problems."
She has applied to 70 different companies but gotten few leads. She recently went through a rigorous interview process for one job in another state, but to no avail. Share your economic survivor story
Every day, she searches for new job possibilities and every day results in more desperation. She estimates she's making $20,000 -- "if that" -- as a contract employee working from her home. "I just haven't made enough to keep up."
Her Detroit neighborhood a couple years ago was booming, she said, but now "it's like a ghost town around here."
"It's bad everywhere, but it's so, so bad here," she said.
Across the nation, people like Easton are feeling the pinch. Good jobs have evaporated. Former full-time employees are now working part-time contract positions just to get by.
Nearly 2.6 million jobs were lost during 2008, the highest yearly total since the end of World War II in 1945. This week alone, major corporations have announced more than 80,000 job cuts, bringing this year's total to well over 200,000.
Dr. Rosalind Dorlen is a clinical psychologist in Summit, New Jersey, an area she calls a "Wall Street ghetto" where formerly high-flying executives are out of work.
"Here, the people earn millions of dollars with bonuses that are astronomical," said Dorlen, who is also the public education coordinator in New Jersey for the American Psychological Association. "There is a demoralizing aspect to having a huge salary and a huge bonus and then having to look for a job that is going to pay much, much less."
She added, "What I'm hearing is a terrible sense of betrayal, anxiety and people experiencing lots of stress." That, in turn, can lead to an increase in unhealthy coping behaviors, such as an uptick in alcohol consumption, unhealthy eating and worse sleeping habits.
Dorlen has several tips for people out of work:
• Don't panic;
• Find a support group, even if it's just an informal group of friends;
• Seek employment counseling when available;
• Be professional in your job hunt;
• Network with other professionals;
• Take time to exercise during hard times;
• Spend valuable time with your family.
On a practical note, she said people should contact their creditors to let them know the situation. She also advises people to do volunteer work and to cultivate a "spirit of optimism."
"Bad times pass, and it's sometimes hard to see that when you're in the throes of a terrible place," she said. "I think we do need to hold onto a spirit of optimism and a sense of confidence." See Top companies: They're hiring!
"I think we're getting mired in the gloom and doom, and we need to hold on to the fact that lots of people are working."
CNN's user-generated site, iReport.com, has been flooded with messages from people out of work. One woman held up her husband's résumé and said, "Please, please, please take him off my hands." Watch woman plead case for hubby
"My husband can knock out a honey-do list like nobody's business, and he meets my great, high standards every day. Don't let my husband slip through your hands. He would be a great addition to your team," the woman said under the headline "Wife Seeking Job for Husband."
In Delaware, Manoj Philip, 24, said he had a full-time job in 2007 with Agilent Technologies making about $55,000 a year, including all the perks and benefits that came with it. But in July 2007, he quit that job to pursue a career in real estate.
"I knew it wasn't going to be easy, but I didn't think it would be this tough," he said.
By September 2008, Philip needed a second income because of the withering housing market. He picked up a full-time contracting job and continues to do real estate about 20-30 hours per week.
It was a shock, he said, to return to full-time work while putting his real estate dreams on hold. "It took a lot for me to change that mental outlook. Because before I would've thought of it as something holding me back," Philip said. "But I don't look at it like that anymore."
He's since learned the value of living within his means, budgeting and making every dollar he spends count for something. "These are really important lessons to learn. I'm glad I learned it at such a young age."
In Detroit, Easton said she knows America will bounce back at some point, but "in the meantime, people are losing everything."
"That's what scares me," she said.
Chủ Nhật, 25 tháng 1, 2009
What is a Guardian or Attorney Ad Litem in a family case?
A Guardian Ad Litem (“Ad Litem,” meaning for purposes of the litigation) is appointed by the Judge in family law cases and will attempt to inform the Court as to what he or she believes is in the “best interests” of the child. In situations where legal action may be required, the Court can also appoint an "Attorney Ad Litem."
The Guardian Ad Litem usually has an advanced degree in either sociology or psychology and has special training in assisting children. The Guardian is usually appointed in termination or adoption cases, but, in special circumstances, also can be appointed in contested child custody cases.
In contested child custody cases, upon the appointment of either (or both) a Guardian / Attorney Ad Litem, the parties will lose some degree of control over what goes on at hearings and at trial. However, when a party is convinced that greater disclosure and investigation will be advantageous to his / her side (and, of course, the "best interests" of the child), then the appointment may be requested. These factors (and others) should be carefully weighed and it is recommended that you consult with an experienced family law attorney. Some of the things that the Guardian / Attorney Ad Litem can / may do are:
1) meet with and interview the child(ren);
2) interview the parents and other family members;
3) interview teachers, counselors, neighbors & others involved with the children;
4) interview other witnesss / third parties;
5) request that the Court order a home study and/or investigate the neighborhood;
6) collect evidence by serving subpoenas on schools and medical or psychological providers;
7) suggest (or request in Court) that the child (and/or parents) see a qualified psychiatrist, psychologist, or counselor for evaluation and/or treatment;
8) initiate (or merely attend) depositions in the case;
9) the filing of Motions concerning matters such as child support, visitation, conservatorship, temporary injunctive relief, health or psychological problems with the children, abuse or neglect of the children, or other matters that have not yet been brought to the attention of the Court;
10) the filing of a formal report to the Court;
11) initiate meetings between the Judge and the child(ren);
12) subpoena witness to hearings and trial;
13) attend hearings and trial; and/or
14) the making of formal or informal recommendations to the Court concerning custody, visitation, powers of conservatorship or other matters.
The Guardian Ad Litem usually has an advanced degree in either sociology or psychology and has special training in assisting children. The Guardian is usually appointed in termination or adoption cases, but, in special circumstances, also can be appointed in contested child custody cases.
In contested child custody cases, upon the appointment of either (or both) a Guardian / Attorney Ad Litem, the parties will lose some degree of control over what goes on at hearings and at trial. However, when a party is convinced that greater disclosure and investigation will be advantageous to his / her side (and, of course, the "best interests" of the child), then the appointment may be requested. These factors (and others) should be carefully weighed and it is recommended that you consult with an experienced family law attorney. Some of the things that the Guardian / Attorney Ad Litem can / may do are:
1) meet with and interview the child(ren);
2) interview the parents and other family members;
3) interview teachers, counselors, neighbors & others involved with the children;
4) interview other witnesss / third parties;
5) request that the Court order a home study and/or investigate the neighborhood;
6) collect evidence by serving subpoenas on schools and medical or psychological providers;
7) suggest (or request in Court) that the child (and/or parents) see a qualified psychiatrist, psychologist, or counselor for evaluation and/or treatment;
8) initiate (or merely attend) depositions in the case;
9) the filing of Motions concerning matters such as child support, visitation, conservatorship, temporary injunctive relief, health or psychological problems with the children, abuse or neglect of the children, or other matters that have not yet been brought to the attention of the Court;
10) the filing of a formal report to the Court;
11) initiate meetings between the Judge and the child(ren);
12) subpoena witness to hearings and trial;
13) attend hearings and trial; and/or
14) the making of formal or informal recommendations to the Court concerning custody, visitation, powers of conservatorship or other matters.
Chủ Nhật, 18 tháng 1, 2009
Spousal Maintenance, Alimony and Tax Tips for Texas Divorces
Spouses can agree to the payment of spousal maintenance (or what is basically alimony in Texas) . However, spouses in the process of a divorce would regard a Court Order requiring the payment of spousal maintenance to be an unfavorable scenario. This may not actually be the case. Because of how the IRS treats the payments for tax purposes, this may actually be favorable for both spouses. If structured properly, the paying spouse (Obligor) may be able to deduct the payment from his or her income. As a result, this liability actually removes income from the paying spouse's reported income, thereby reducing the Obligor's tax liability. The effect of this over time could be significant, especially if the payments drop the Obligor into a lower tax bracket.
On the other hand, the receiving spouse (Obligee) must report the payments as additional income on his or her Form 1040. By structuring the settlement in this manner, the Obligor could hang on to additional assets and reduce his or her tax liability at the same time. Conversely, the Obligee could obtain the security of payments over time and, assuming the Obligee is in a lower tax-bracket, reduce the overall tax liability of the marital estate.
Under IRS publication 504, the following types of payment are not considered to be spousal maintenance (alimony):
· Child support,
· Noncash property settlements,
· Payments that are your spouse's part of community income,
· Payments to keep up the payer's property, or
· Use of the payer's property.
In order to qualify to be alimony (or spousal maintenance), the settlement must be structured properly. The following seven requirements are mandatory:
1. The payments must be made as part of a written divorce agreement;
2. The payments must be made to your ex-spouse and usually not to third parties;
3. The divorce (or agreement incident to divorce) should not expressly disclaim that the payment is for alimony (spousal maintenance);
4. After the divorce, you and your spouse cannot live together in the same household and should not file the taxes jointly;
5. The payment must be in cash or equivalents (checks, money orders, cashier's checks) and not money from a property settlement;
6. The payment cannot be considered to be child support; and,
7. The obligation to make payments must cease if your ex dies.
If you have questions, you should consult an experienced divorce attorney or CPA.
***** Treasury Circular 230 Disclosure - To comply with requirements imposed by the Internal Revenue Service, to the extent this blog posting could be construed to include "tax advice," the information is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding tax penalties that may be imposed on the person. This blog post is intended for informational purposes only, the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
On the other hand, the receiving spouse (Obligee) must report the payments as additional income on his or her Form 1040. By structuring the settlement in this manner, the Obligor could hang on to additional assets and reduce his or her tax liability at the same time. Conversely, the Obligee could obtain the security of payments over time and, assuming the Obligee is in a lower tax-bracket, reduce the overall tax liability of the marital estate.
Under IRS publication 504, the following types of payment are not considered to be spousal maintenance (alimony):
· Child support,
· Noncash property settlements,
· Payments that are your spouse's part of community income,
· Payments to keep up the payer's property, or
· Use of the payer's property.
In order to qualify to be alimony (or spousal maintenance), the settlement must be structured properly. The following seven requirements are mandatory:
1. The payments must be made as part of a written divorce agreement;
2. The payments must be made to your ex-spouse and usually not to third parties;
3. The divorce (or agreement incident to divorce) should not expressly disclaim that the payment is for alimony (spousal maintenance);
4. After the divorce, you and your spouse cannot live together in the same household and should not file the taxes jointly;
5. The payment must be in cash or equivalents (checks, money orders, cashier's checks) and not money from a property settlement;
6. The payment cannot be considered to be child support; and,
7. The obligation to make payments must cease if your ex dies.
If you have questions, you should consult an experienced divorce attorney or CPA.
***** Treasury Circular 230 Disclosure - To comply with requirements imposed by the Internal Revenue Service, to the extent this blog posting could be construed to include "tax advice," the information is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding tax penalties that may be imposed on the person. This blog post is intended for informational purposes only, the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
Thứ Năm, 15 tháng 1, 2009
Free 10 minute consultation
I am willing to try to talk to everyone in Harris County that calls me. However, it's only an opportunity to see if you think that we will work together well. I can't give legal advice over the phone since I don't know all the facts in your case. There is no way that I can completely assess a case in 10 minutes.
What an attorney does?
An attorney sells you their opinion of what is going to happen in court. I've found that many people only give me the facts that will result in their winning the case. However, when I question them and begin to get all the facts, I see that they don't have a "slam dunk" case. Often, these people get mad at me because I begin to explain the weaknesses in their case. Ater practicing law over 17 years, I DON'T GUARANTEE RESULTS. Why? Because I don't know all the facts, and I don't know what mood the judge will be in when we appear in court. ANY ATTORNEY THAT GUARANTEES RESULTS SINCE NO ATTORNEY CAN DO PROMISE YOU THAT YOU WILL WIN!
Police reports
The little pieces of paper you receive if you call the police, really are worth much.
If the police officer did not actually see or hear the abuse, it is here-say.
It is much better evidence to have a person who heard, saw, tasted, smelled, etc. the actual abuse that is willing to testify in court.
Anyone with personal knowledge can testify. If a police officer sees or hears anything, then you need to get their name, rank and phone number so that they can be asked to come to court to testify. NOW THAT IS POWERFUL!
If the police officer did not actually see or hear the abuse, it is here-say.
It is much better evidence to have a person who heard, saw, tasted, smelled, etc. the actual abuse that is willing to testify in court.
Anyone with personal knowledge can testify. If a police officer sees or hears anything, then you need to get their name, rank and phone number so that they can be asked to come to court to testify. NOW THAT IS POWERFUL!
I'm still without an office
Ater 2 months, my new office space is still not ready.
However, I'm in the middle of moving my home! I will finally be able to unpack my office files and at least be able to not be surrounded by boxes.
I hope to be settled (home-wise) by February 1st!
Thank you for your patience.
However, I'm in the middle of moving my home! I will finally be able to unpack my office files and at least be able to not be surrounded by boxes.
I hope to be settled (home-wise) by February 1st!
Thank you for your patience.
Birth Certificate
If you are not married, each hospital has their own policy in order to put the father's name on the birth certificate.
If you are not sure who the father is of the new baby (or if you are the father and you are not sure if you are the father), then either ask for DNA testing OR don't put your name on the birth certificate.
If the man signs the proper paperwork that is then sent to Austin, TX, and becomes a binding legal document in the State of Texas. The man is voluntarily acknowledging that he wants to be the of this child, even if it turns out he is not the bio-father.
FYI: Of course, my advice could change in the future, if the TX legislature makes a change the next time it meets.
I urge you to talk to a family law attorney before you sign the birth certificate.
If you are not sure who the father is of the new baby (or if you are the father and you are not sure if you are the father), then either ask for DNA testing OR don't put your name on the birth certificate.
If the man signs the proper paperwork that is then sent to Austin, TX, and becomes a binding legal document in the State of Texas. The man is voluntarily acknowledging that he wants to be the of this child, even if it turns out he is not the bio-father.
FYI: Of course, my advice could change in the future, if the TX legislature makes a change the next time it meets.
I urge you to talk to a family law attorney before you sign the birth certificate.
Thứ Hai, 12 tháng 1, 2009
Antiquated Laws Remain on the Books in Texas
On April 26, 2007, the Texas Senate passed a bill which, if signed into law by Governor Perry, would repeal the authority of the “Texas Commission of Control for Texas Centennial Celebrations” to condemn historic properties in observance of our State's 100th anniversary. The House passed this measure on March 20, 2007. While the Centennial Celebration was by all accounts a legendary party, it ended in 1936! Texas is now 171 years old, but state law still allows an agency to condemn private property for a shindig which very few living Texas can even remember.
This is just one of many outdated, unnecessary and sometimes comedic laws, ordinances and regulations that remain on the books in Texas. A brief survey of enactments by our elected officials reveals the often silly and sometimes Draconian results of the parens patriae mentality.
The Texas Penal Code is replete with interesting provisions. Did you know that it is illegal to trip a horse, communicate betting odds, or look into a neighboring hotel room? Another antiquated section of our Penal Code attracted national attention in 2003 when a Cleburne woman was busted for possessing “obscene devices” with an “intent to promote” them. Her arrest was the result of a sting operation conducted by undercover police officers posing as a married couple in search of a sex aid. As a sales consultant for Passion Parties – a company which employs consultants to host seminars in their homes to hawk gels, lubricants, and edible puddings -- the former teacher claimed that the self-pleasuring devices were simply part of her inventory. While the viability of that defense was dubious, she likely could have relied on Section 49.23(g) of the Texas Penal Code, which vindicates persons who possess or promote obscene material or devices “for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.” After much reflection, I must admit that I cannot conceive of a bona fide medical or legislative reason to possess an “obscene device.”
The East Texas town of Nacogdoches is famous for its witty ordinances. At one time it was against city law for "young women" to indulge in the culinary delights of raw onions after 6 p.m. Another deleted provision required wives of drunks to administer a "large dose of castor oil." Today, Ordinance 46-2 prohibits any person from using “a body of water in the city, which contains sewage… or waste for swimming or bathing purposes.” So much for taking a therapeutic bath at the Nacogdoches sewer treatment plant!
In Mesquite, you commit a misdemeanor if you fail to return a library book after receiving notice that it is overdue, while causing “material distress, discomfort or injury” by an unreasonably strong odor will get you cited in Texarkana. Mischievously ringing a doorbell is a misdemeanor in Temple, and simply engaging in “annoying pursuits” is banned in Port Arthur.
Here in San Antonio it is illegal to spit upon sidewalks, crosswalks, theaters and the floors of churches. It is equally impermissible to “climb pecan trees in any public park or street…or to throw sticks or stones for the purpose of gathering pecans.” Perhaps the most egregious and obtrusive legislation of all is San Antonio Ordinance 21-21 which prohibits the sale or use of a "liquid string, silly string, or super string" during Fiesta! There must have been at least several thousand scofflaws at the Battle of Flowers parade last week.
While some unusual laws made historic sense, others seem to have no rational basis in any era. Fortunately, or unfortunately – depending on your perspective - seemingly absurd legislation is not a thing of the past. Just last Session, the Texas House of Representatives passed a bill that would have reduced funding for schools whose cheerleaders performed “sexually suggestive” routines. The Senate apparently did not share the lower body’s concern over the manner in which bawdy cheerleading jeopardized the well being of Texans everywhere, and the bill died in Committee. I heard that the line was 14:9 that it will be re-introduced this Session! If not, rest assured that legislation of an equally incongruous nature will be introduced, and some of it will become the law of the land.
This is just one of many outdated, unnecessary and sometimes comedic laws, ordinances and regulations that remain on the books in Texas. A brief survey of enactments by our elected officials reveals the often silly and sometimes Draconian results of the parens patriae mentality.
The Texas Penal Code is replete with interesting provisions. Did you know that it is illegal to trip a horse, communicate betting odds, or look into a neighboring hotel room? Another antiquated section of our Penal Code attracted national attention in 2003 when a Cleburne woman was busted for possessing “obscene devices” with an “intent to promote” them. Her arrest was the result of a sting operation conducted by undercover police officers posing as a married couple in search of a sex aid. As a sales consultant for Passion Parties – a company which employs consultants to host seminars in their homes to hawk gels, lubricants, and edible puddings -- the former teacher claimed that the self-pleasuring devices were simply part of her inventory. While the viability of that defense was dubious, she likely could have relied on Section 49.23(g) of the Texas Penal Code, which vindicates persons who possess or promote obscene material or devices “for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.” After much reflection, I must admit that I cannot conceive of a bona fide medical or legislative reason to possess an “obscene device.”
The East Texas town of Nacogdoches is famous for its witty ordinances. At one time it was against city law for "young women" to indulge in the culinary delights of raw onions after 6 p.m. Another deleted provision required wives of drunks to administer a "large dose of castor oil." Today, Ordinance 46-2 prohibits any person from using “a body of water in the city, which contains sewage… or waste for swimming or bathing purposes.” So much for taking a therapeutic bath at the Nacogdoches sewer treatment plant!
In Mesquite, you commit a misdemeanor if you fail to return a library book after receiving notice that it is overdue, while causing “material distress, discomfort or injury” by an unreasonably strong odor will get you cited in Texarkana. Mischievously ringing a doorbell is a misdemeanor in Temple, and simply engaging in “annoying pursuits” is banned in Port Arthur.
Here in San Antonio it is illegal to spit upon sidewalks, crosswalks, theaters and the floors of churches. It is equally impermissible to “climb pecan trees in any public park or street…or to throw sticks or stones for the purpose of gathering pecans.” Perhaps the most egregious and obtrusive legislation of all is San Antonio Ordinance 21-21 which prohibits the sale or use of a "liquid string, silly string, or super string" during Fiesta! There must have been at least several thousand scofflaws at the Battle of Flowers parade last week.
While some unusual laws made historic sense, others seem to have no rational basis in any era. Fortunately, or unfortunately – depending on your perspective - seemingly absurd legislation is not a thing of the past. Just last Session, the Texas House of Representatives passed a bill that would have reduced funding for schools whose cheerleaders performed “sexually suggestive” routines. The Senate apparently did not share the lower body’s concern over the manner in which bawdy cheerleading jeopardized the well being of Texans everywhere, and the bill died in Committee. I heard that the line was 14:9 that it will be re-introduced this Session! If not, rest assured that legislation of an equally incongruous nature will be introduced, and some of it will become the law of the land.
Chủ Nhật, 11 tháng 1, 2009
I’ve been served with a Divorce Petition in Texas, what should I do / not do?
Thứ Bảy, 10 tháng 1, 2009
What Are the Elements Necessary to Acquire Title to Land in Texas By Adverse Possession ?
Many landowners are vaguely familiar with the concept of "adverse possession." We've all heard stories of neighbors moving their fencelines to acquire title to chunks of a neighboring property, or of "squatters" claiming ownership of another's land after trespassing for many years.
Adverse possession is a "hot" topic in many parts of the country. During 2008, alone, the Legislatures of New York and Colorado made significant changes to those States' adverse possession laws.
However, as a Texas real estate and water rights lawyer and longtime advocate of landowners' rights, I remain convinced that the topic of adverse possession is not as important or as controversial anywhere as it is in the Lone Star State. After all, the story of we Texans is one of private property ownership. Beginning with Ausin's Colony, our history has been one of abundant land available for permanent and unalienable ownership. To me, it is little wonder that settlement of Stephen F. Austin's colony from 1821 to 1836 has been called the most successful colonization movement in American history. It's also little wonder that Texas caselaw is full of Court decisions relating to claims of title to land by adverse possession.
Yet, despite the vague familiarity of many people with the concept of adverse possession, few seem to truly understand its nuances, or how it can be established.
“Adverse possession” means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person. Tex. Civ. Prac. & Rem.Code Ann. § 16.021(1) (Vernon 2002). To establish title through adverse possession, “the possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Rick v. Grubbs, 214 S.W.2d 925, 927 (Tex.1948. The question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985).
In determining what will amount to adverse possession, considerable importance is placed on the nature of the land and its use. Wall v. Carrell, 894 S.W.2d 788, 800 (Tex.App.-Tyler 1994, writ denied).
A party claiming adverse possession must prove:
1) actual possession of the disputed property,
2) under a claim of right, and
3) that is adverse or hostile to the claim of the owner and that it was consistently and continuously so for the duration of the statutory period.
Taub v. Houston Pipeline Co., 75 S.W.3d 606, 625 (Tex.App.-Texarkana 2002, pet. denied); Sarandos v. Blanton, 25 S.W.3d 811, 815 (Tex.App.-Waco 2000, pet. denied).
Texas Courts have had occassion to examine each of the "elements," separately, and have expanded on what is required to demonstrate them. The following is a brief survey of those Courts' interpretations of adverse possession law.
1. Possession
Possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990).
2. Claim of Right
‘Claim of right’ ... means that the entry of the claimant must be with the intent to claim the land as his own, to hold it for himself and such must continue to be the nature of his possession. Boyle v. Burk, 749 S.W.2d 264, 266 (Tex.App.-Fort Worth 1988, writ denied); see Tran v. Macha, 50 Tex. Sup.Ct. J. 186, 187, 213 S.W.3d 913, 915 (Tex.2006) (per curiam) (“[T]here must be an intention to claim property as one's own to the exclusion of all others....”).
3. Hostility or "Adversity"
The "test of hostility" is whether acts performed by the claimant on the land, and the use made of the land, was of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being asserted to the property. Taub, 75 S.W.3d at 626; Templeton v. Dreiss, 961 S.W.2d 645, 670 (Tex.App.-San Antonio 1998, pet. denied). There is no legal requirement that personal animosity be present. However, the statute requires visible appropriation; “mistaken beliefs about ownership do not transfer title until someone acts on them.” Tran v. Macha, 213 S.W.3d 913, 914 (Tex.2006) (citing Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985)). In other words, there must be adverse possession, not just adverse beliefs. See id.
How Long?
The question of how long one must "claim" owenership or possession of land in order to establish title through adverse possession is a highly technical one. Texas Law presecribes adverse possession under three (3), five (5), ten (10), or twenty-five (25) year limitations periods. Each of these periods, and their separate requirements (which differ in many respects), are set-forth in Chapter 16, Subchapter B, of the Texas Civil Practices & Remedies Code.
A detailed explanation the applicability and distinctions between the 3, 5, 10 and 25 year adverse possession periods could (and possibly will) be the subject of another complete blog posting. However, irrespective of which limitations period is implicated, proving title by adverse possession is complex and highly burdensome.
It is important to understand one seeking to establish title to land by virtue of the statute of limitations has the burden of proving every fact essential to that claim by a preponderance of the evidence. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990). Inferences are never indulged in the adverse claimant's favor. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985). Accordingly, a landowner seeking to prove or acquire title to land by adverse possession should secure the advice, counsel and assistance of an experienced real estate lawyer.
Trey Wilson is an attorney in San Antonio, Texas, and princpal of R L Wilson, P.C. Law Firm. His Texas-wide practice focuses on real estate law, water law, construction law and evictions. he may be reached at 210-223-4100 or www.sa-law.com.
Adverse possession is a "hot" topic in many parts of the country. During 2008, alone, the Legislatures of New York and Colorado made significant changes to those States' adverse possession laws.
However, as a Texas real estate and water rights lawyer and longtime advocate of landowners' rights, I remain convinced that the topic of adverse possession is not as important or as controversial anywhere as it is in the Lone Star State. After all, the story of we Texans is one of private property ownership. Beginning with Ausin's Colony, our history has been one of abundant land available for permanent and unalienable ownership. To me, it is little wonder that settlement of Stephen F. Austin's colony from 1821 to 1836 has been called the most successful colonization movement in American history. It's also little wonder that Texas caselaw is full of Court decisions relating to claims of title to land by adverse possession.
Yet, despite the vague familiarity of many people with the concept of adverse possession, few seem to truly understand its nuances, or how it can be established.
“Adverse possession” means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person. Tex. Civ. Prac. & Rem.Code Ann. § 16.021(1) (Vernon 2002). To establish title through adverse possession, “the possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Rick v. Grubbs, 214 S.W.2d 925, 927 (Tex.1948. The question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985).
In determining what will amount to adverse possession, considerable importance is placed on the nature of the land and its use. Wall v. Carrell, 894 S.W.2d 788, 800 (Tex.App.-Tyler 1994, writ denied).
A party claiming adverse possession must prove:
1) actual possession of the disputed property,
2) under a claim of right, and
3) that is adverse or hostile to the claim of the owner and that it was consistently and continuously so for the duration of the statutory period.
Taub v. Houston Pipeline Co., 75 S.W.3d 606, 625 (Tex.App.-Texarkana 2002, pet. denied); Sarandos v. Blanton, 25 S.W.3d 811, 815 (Tex.App.-Waco 2000, pet. denied).
Texas Courts have had occassion to examine each of the "elements," separately, and have expanded on what is required to demonstrate them. The following is a brief survey of those Courts' interpretations of adverse possession law.
1. Possession
Possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990).
2. Claim of Right
‘Claim of right’ ... means that the entry of the claimant must be with the intent to claim the land as his own, to hold it for himself and such must continue to be the nature of his possession. Boyle v. Burk, 749 S.W.2d 264, 266 (Tex.App.-Fort Worth 1988, writ denied); see Tran v. Macha, 50 Tex. Sup.Ct. J. 186, 187, 213 S.W.3d 913, 915 (Tex.2006) (per curiam) (“[T]here must be an intention to claim property as one's own to the exclusion of all others....”).
3. Hostility or "Adversity"
The "test of hostility" is whether acts performed by the claimant on the land, and the use made of the land, was of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being asserted to the property. Taub, 75 S.W.3d at 626; Templeton v. Dreiss, 961 S.W.2d 645, 670 (Tex.App.-San Antonio 1998, pet. denied). There is no legal requirement that personal animosity be present. However, the statute requires visible appropriation; “mistaken beliefs about ownership do not transfer title until someone acts on them.” Tran v. Macha, 213 S.W.3d 913, 914 (Tex.2006) (citing Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985)). In other words, there must be adverse possession, not just adverse beliefs. See id.
How Long?
The question of how long one must "claim" owenership or possession of land in order to establish title through adverse possession is a highly technical one. Texas Law presecribes adverse possession under three (3), five (5), ten (10), or twenty-five (25) year limitations periods. Each of these periods, and their separate requirements (which differ in many respects), are set-forth in Chapter 16, Subchapter B, of the Texas Civil Practices & Remedies Code.
A detailed explanation the applicability and distinctions between the 3, 5, 10 and 25 year adverse possession periods could (and possibly will) be the subject of another complete blog posting. However, irrespective of which limitations period is implicated, proving title by adverse possession is complex and highly burdensome.
It is important to understand one seeking to establish title to land by virtue of the statute of limitations has the burden of proving every fact essential to that claim by a preponderance of the evidence. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990). Inferences are never indulged in the adverse claimant's favor. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985). Accordingly, a landowner seeking to prove or acquire title to land by adverse possession should secure the advice, counsel and assistance of an experienced real estate lawyer.
Trey Wilson is an attorney in San Antonio, Texas, and princpal of R L Wilson, P.C. Law Firm. His Texas-wide practice focuses on real estate law, water law, construction law and evictions. he may be reached at 210-223-4100 or www.sa-law.com.
Thứ Sáu, 9 tháng 1, 2009
Attorney General Abbott Files Action To Halt Business Of Unlicensed Home Warranty Company
National Home Protection, Inc. also cited for deceptive trade practices
AUSTIN – Texas Attorney General Greg Abbott today charged a New York-based home warranty company with unlawfully doing business in Texas. The state’s enforcement action seeks to prevent National Home Protection, Inc. from doing business in Texas until it is licensed by the state and complies with requirements of the Texas Occupations Code. The Attorney General also is seeking restitution for Texas homeowners who purchased the defendant’s warranties but did not receive the services they were promised under the warranty contracts.
According to state investigators, National Home Protection continued selling “residential service contracts” to Texas homeowners even after the company was specifically informed about licensure and other requirements. The defendant ignored the Texas Real Estate Commission’s demand that it cease operations in Texas and return any money received from Texans. Meanwhile, Texas customers continued to complain that the company refused to repair or replace various home systems.
The state’s enforcement action charges National Home Protection with violating the Texas Occupations Code by failing to obtain a license, maintain a funded reserve against their liabilities and file annual reports with the state. The company also is charged with violating the Texas Deceptive Trade Practices Act (DTPA) by operating without a license in Texas.
In addition to homeowner restitution, the state is seeking civil penalties under the Occupations Code and up to $20,000 for each violation of the DTPA.
Texas homeowners who believe they have been defrauded by similar practices should contact a private attorney experienced with residential construction defects and real estate law. San Antonio attorney Trey Wilson is experienced at real estate-related lawsuits. He was recently named as one of San Antonio's best real estate litigation attorneys by Scene in SA Magazine. Trey Wilson may be reached at (210) 223-4100 or online at www.sa-law.com
AUSTIN – Texas Attorney General Greg Abbott today charged a New York-based home warranty company with unlawfully doing business in Texas. The state’s enforcement action seeks to prevent National Home Protection, Inc. from doing business in Texas until it is licensed by the state and complies with requirements of the Texas Occupations Code. The Attorney General also is seeking restitution for Texas homeowners who purchased the defendant’s warranties but did not receive the services they were promised under the warranty contracts.
According to state investigators, National Home Protection continued selling “residential service contracts” to Texas homeowners even after the company was specifically informed about licensure and other requirements. The defendant ignored the Texas Real Estate Commission’s demand that it cease operations in Texas and return any money received from Texans. Meanwhile, Texas customers continued to complain that the company refused to repair or replace various home systems.
The state’s enforcement action charges National Home Protection with violating the Texas Occupations Code by failing to obtain a license, maintain a funded reserve against their liabilities and file annual reports with the state. The company also is charged with violating the Texas Deceptive Trade Practices Act (DTPA) by operating without a license in Texas.
In addition to homeowner restitution, the state is seeking civil penalties under the Occupations Code and up to $20,000 for each violation of the DTPA.
Texas homeowners who believe they have been defrauded by similar practices should contact a private attorney experienced with residential construction defects and real estate law. San Antonio attorney Trey Wilson is experienced at real estate-related lawsuits. He was recently named as one of San Antonio's best real estate litigation attorneys by Scene in SA Magazine. Trey Wilson may be reached at (210) 223-4100 or online at www.sa-law.com
Thứ Năm, 8 tháng 1, 2009
AVERAGE HOA COSTS IN SAN ANTONIO
Annual homeowners association fees can include a transfer fee, reserve or capital improvement fee as well as monthly, quarterly or annual dues. They differ by size, the number of homes in an association, and the amenities provided.
Transfer fee for single-family home
$100 to $150 one time
Annual dues for single-family homes
0-99 units: $250-$400 without a gate or other amenities and $500-$700 with an entrance gate
Pools
100-299 units: $250-$400 without a pool; $350-$500 with a pool 300-699 units with a pool: $450-$600 700+ units with a pool: $350-$500
Condos and Townhomes
$150-$250 per month, which usually includes waste disposal and water service
Source: Express News (2/28/08) quoting Spectrum Association Management and Glenn Clarke
Transfer fee for single-family home
$100 to $150 one time
Annual dues for single-family homes
0-99 units: $250-$400 without a gate or other amenities and $500-$700 with an entrance gate
Pools
100-299 units: $250-$400 without a pool; $350-$500 with a pool 300-699 units with a pool: $450-$600 700+ units with a pool: $350-$500
Condos and Townhomes
$150-$250 per month, which usually includes waste disposal and water service
Source: Express News (2/28/08) quoting Spectrum Association Management and Glenn Clarke
Homeowners Associations: The final authority? from the San Antonio Express News
Like many homeowners, Charles Shirley viewed his home as his kingdom: A place where he could rule over the home's colors, design and landscaping as he chose.
The only problem was that some of his neighbors felt the same way. Without a homeowners association, neighbors parked cars on their lawns. One homeowner ran a mechanic shop out of his home garage.
So when Shirley decided to build a new home near Canyon Lake five years ago, he was glad that the Estate of Oak Shores had strict limitations on the height of each building and how long neighbors could leave their boats sitting outdoors.
"We have height restrictions; and in some cases each lot has different restrictions, so as not to block the total view of each house above them to maximize the value of each lot," said Shirley, who helps enforce the Estate of Oak Shores' rules as part of its architectural control committee. "It was a selling point. It protects the property values of what you are investing in."
In many communities, homeowners or condominium associations have final authority in most aesthetic matters — with the ability to sue a property owner, assess penalty fees and even foreclose on a property if the fees aren't paid — because buyers agree to it when they purchase the land or home in the subdivision.
So homeowners associations, called HOAs, are not for the owner who wants total control over when the trash can is placed on the curb or whether to convert the garage into an apartment for the in-laws. Home buyers should weigh the tradeoffs when deciding to buy or to build in a community governed by an association.
HOAs began as an option that homeowners could select to join, like any other social group.But in the 1960s, cities and counties began encouraging developers to set up mandatory HOAs that required all homeowners to participate.
Now, before starting construction, most developers set up a nonprofit organization for the HOA with the Texas secretary of sate and then write all governing rules and restrictions. This includes the HOA's duties and the homeowners' responsibilities, and these are kept in a public document called the Declaration of Covenants, Conditions and Restrictions, or DCC&Rs, which is filed with the county clerk's office. Homeowners can challenge those by submitting requests for changes to an association's architectural control committee or the HOA board. But they must abide by their decisions.
Associations have taken leadership on environmental issues such as smoking and conservation. It is increasingly common for associations that govern condominiums to ban smoking even inside individual units to limit recycling of smoke-filled air through the common air filtration system, said Mark Nash, a real estate broker and author of "1001 Tips for Buying and Selling a Home." Nash surveys agents nationwide on the hottest buyer trends each year.
In one subdivision along Bulverde Road, homeowners pay an extra $15 dollars per month for a conservation preserve and "conservation association" that must permanently protect the natural habitat in an area near their homes, according to Andy Hill, CEO of Spectrum Association Management, a company that manages 140 HOAs in Texas.
But the associations also provide amenities (such as the mini-waterpark with a "lazy river" at Cibolo Canyons) that most homeowners could not afford individually.
So, many new-home buyers expect to be governed by an HOA, agents say. "It's an expected situation that you will have that extra set of dues going out every so often," said Kara Sagebiel, an agent at Coldwell Banker D'Ann Harper Realtors.
But an HOA's amenities come with a price. Condo fees tend to run at least $150 each month. Homeowners association dues range from around $20 to $70 a month, depending on the types of amenities and size of the community, Hill said. That's partly because HOAs tend to buy insurance to protect themselves in case of accidents or lawsuits, and pools are expensive to insure. Plus, gated communities also must maintain roads and streetlights in their communities.
Dues can fluctuate, too. In Summerfield near Northwest Military Highway and Wurzbach Parkway, the HOA just voted to increase dues from $210 per quarter to $231 per quarter to enclose the walking trails that border a new subdivision and public park. The playground equipment was vandalized recently.
"We're seeing an increase in property crime in this part of the city. And although we are a gated community, I just sensed that more safety on the street would be helpful," said Bill Thomas, board president and a five-year Summerfield resident.
The Summerfield HOA also wanted to stay on track with saving to repave the streets that connect the community's 430 homes in seven years. Workers paint a fence in the Summerfield subdivision. The homeowners association maintains common areas as well as inspects properties to ensure rules are followed.
Homeowners also must abide by the covenants and restrictions in mandatory associations — or face legal action. Many HOAs issue a handful of written notices asking a homeowner to fix a violation or to pay dues within 10 days if they have fallen behind. If nothing happens, then the HOA issues a final notice, giving the homeowner 30 days to respond, before turning the issue over to an attorney.
If the homeowner owes unpaid dues, then the HOA can file a lawsuit to collect. If the homeowner ignores a judge's order to pay the dues, then the HOA can start foreclosure proceedings.
But most HOA boards are loath to foreclose, said Hill of Spectrum Association Management. "They are not trying to be mean or rude," he said. "They are just trying to maintain the community. Most board members are good people and have a genuine interest in creating a good sense of community."
The only problem was that some of his neighbors felt the same way. Without a homeowners association, neighbors parked cars on their lawns. One homeowner ran a mechanic shop out of his home garage.
So when Shirley decided to build a new home near Canyon Lake five years ago, he was glad that the Estate of Oak Shores had strict limitations on the height of each building and how long neighbors could leave their boats sitting outdoors.
"We have height restrictions; and in some cases each lot has different restrictions, so as not to block the total view of each house above them to maximize the value of each lot," said Shirley, who helps enforce the Estate of Oak Shores' rules as part of its architectural control committee. "It was a selling point. It protects the property values of what you are investing in."
In many communities, homeowners or condominium associations have final authority in most aesthetic matters — with the ability to sue a property owner, assess penalty fees and even foreclose on a property if the fees aren't paid — because buyers agree to it when they purchase the land or home in the subdivision.
So homeowners associations, called HOAs, are not for the owner who wants total control over when the trash can is placed on the curb or whether to convert the garage into an apartment for the in-laws. Home buyers should weigh the tradeoffs when deciding to buy or to build in a community governed by an association.
HOAs began as an option that homeowners could select to join, like any other social group.But in the 1960s, cities and counties began encouraging developers to set up mandatory HOAs that required all homeowners to participate.
Now, before starting construction, most developers set up a nonprofit organization for the HOA with the Texas secretary of sate and then write all governing rules and restrictions. This includes the HOA's duties and the homeowners' responsibilities, and these are kept in a public document called the Declaration of Covenants, Conditions and Restrictions, or DCC&Rs, which is filed with the county clerk's office. Homeowners can challenge those by submitting requests for changes to an association's architectural control committee or the HOA board. But they must abide by their decisions.
Associations have taken leadership on environmental issues such as smoking and conservation. It is increasingly common for associations that govern condominiums to ban smoking even inside individual units to limit recycling of smoke-filled air through the common air filtration system, said Mark Nash, a real estate broker and author of "1001 Tips for Buying and Selling a Home." Nash surveys agents nationwide on the hottest buyer trends each year.
In one subdivision along Bulverde Road, homeowners pay an extra $15 dollars per month for a conservation preserve and "conservation association" that must permanently protect the natural habitat in an area near their homes, according to Andy Hill, CEO of Spectrum Association Management, a company that manages 140 HOAs in Texas.
But the associations also provide amenities (such as the mini-waterpark with a "lazy river" at Cibolo Canyons) that most homeowners could not afford individually.
So, many new-home buyers expect to be governed by an HOA, agents say. "It's an expected situation that you will have that extra set of dues going out every so often," said Kara Sagebiel, an agent at Coldwell Banker D'Ann Harper Realtors.
But an HOA's amenities come with a price. Condo fees tend to run at least $150 each month. Homeowners association dues range from around $20 to $70 a month, depending on the types of amenities and size of the community, Hill said. That's partly because HOAs tend to buy insurance to protect themselves in case of accidents or lawsuits, and pools are expensive to insure. Plus, gated communities also must maintain roads and streetlights in their communities.
Dues can fluctuate, too. In Summerfield near Northwest Military Highway and Wurzbach Parkway, the HOA just voted to increase dues from $210 per quarter to $231 per quarter to enclose the walking trails that border a new subdivision and public park. The playground equipment was vandalized recently.
"We're seeing an increase in property crime in this part of the city. And although we are a gated community, I just sensed that more safety on the street would be helpful," said Bill Thomas, board president and a five-year Summerfield resident.
The Summerfield HOA also wanted to stay on track with saving to repave the streets that connect the community's 430 homes in seven years. Workers paint a fence in the Summerfield subdivision. The homeowners association maintains common areas as well as inspects properties to ensure rules are followed.
Homeowners also must abide by the covenants and restrictions in mandatory associations — or face legal action. Many HOAs issue a handful of written notices asking a homeowner to fix a violation or to pay dues within 10 days if they have fallen behind. If nothing happens, then the HOA issues a final notice, giving the homeowner 30 days to respond, before turning the issue over to an attorney.
If the homeowner owes unpaid dues, then the HOA can file a lawsuit to collect. If the homeowner ignores a judge's order to pay the dues, then the HOA can start foreclosure proceedings.
But most HOA boards are loath to foreclose, said Hill of Spectrum Association Management. "They are not trying to be mean or rude," he said. "They are just trying to maintain the community. Most board members are good people and have a genuine interest in creating a good sense of community."
San Antonio Residents Fire Back At Homeowners Association and Builder
A group of residents of the West Oaks Estates subdivision in San Antonio, Texas are fighting back against what they believe is an unmeritorious attack by their homeowners association, and the builder/developer who controls the HOA. In a counter-suit filed in Bexar County District Court in San Antonio, Texas, the residents have accused the West Oak Estates HOA, Inc., and McMillin Development of breach of contract, real estate fruad, violations of the covenants, and conversion.
The counter-suit, which was filed in response to a series of suits initiated by the builder and HOA against 19 families who purchased their properties in the subdivision PRIOR TO the time that the builder recorded the covenants/restrictions. In the original suit the HOA and builder seek a judicial declaration that the properties are subject to the declaration of covenants and restrictions("CCRs") and to mandatory membership, despite the fact that the builder dropped the ball in timely filing the CCRs with respect to the residents' particular unit of the subdivision.
In the counter-suit, the residents deny the applicability of the restrictive covenants to their properties. In addition, they have alleged that membership in the HOA is not mandatory for them. In support of that argument, the residents have argued that the law in Texas, and even before Texas or the United States were established, provides that a covenant does not run with the land unless it "touches and concerns the land." It is clear from records recorded with the Bexar County Clerk that the restrictive covenants applicable to the West Oaks Estates HOA were not filed until AFTER each of the Counter-Plaintiffs purchased their properties.
The residents are represented by San Antonio attorney Trey Wilson, who has handled HOA litigation before both on behalf of and against homeowners associations. Wilson maintains that the West Oaks Estates HOA is not a proper Plaintiff in the lawsuit because there is no membership in the HOA by his clients. "Restrictive Covenants are treated by Courts as contracts, and since it is undisputed that my clients are not members of the HOA, there is no contractual privity between them and the HOA which would allow the HOA to bring this suit," said Wilson.
There is currently no trial date in the case.
The counter-suit, which was filed in response to a series of suits initiated by the builder and HOA against 19 families who purchased their properties in the subdivision PRIOR TO the time that the builder recorded the covenants/restrictions. In the original suit the HOA and builder seek a judicial declaration that the properties are subject to the declaration of covenants and restrictions("CCRs") and to mandatory membership, despite the fact that the builder dropped the ball in timely filing the CCRs with respect to the residents' particular unit of the subdivision.
In the counter-suit, the residents deny the applicability of the restrictive covenants to their properties. In addition, they have alleged that membership in the HOA is not mandatory for them. In support of that argument, the residents have argued that the law in Texas, and even before Texas or the United States were established, provides that a covenant does not run with the land unless it "touches and concerns the land." It is clear from records recorded with the Bexar County Clerk that the restrictive covenants applicable to the West Oaks Estates HOA were not filed until AFTER each of the Counter-Plaintiffs purchased their properties.
The residents are represented by San Antonio attorney Trey Wilson, who has handled HOA litigation before both on behalf of and against homeowners associations. Wilson maintains that the West Oaks Estates HOA is not a proper Plaintiff in the lawsuit because there is no membership in the HOA by his clients. "Restrictive Covenants are treated by Courts as contracts, and since it is undisputed that my clients are not members of the HOA, there is no contractual privity between them and the HOA which would allow the HOA to bring this suit," said Wilson.
There is currently no trial date in the case.
Thứ Tư, 7 tháng 1, 2009
Fines, lawyer fees lead to HOA power battles -- WFAA TV in Dallas
PLANO - Solar Lights, basketball hoops and shingles made of aluminum have all added up to fines, and in some cases liens, after some homeowners associations defined them as violations of their rules.
In Texas, HOAs possess the ultimate weapon, the ability to take one's home. However, some say that's too much control.
For more than 59 million Americans in 300,000 communities, HOAs regulate everything from the color of their homes to when they can leave their garage doors open.
"You can't win," said Sandy Ramirez, a Frisco homeowner. "HOAs will always win."
Mrs. Ramirez shot home video while a giant crane slowly lifted a luxury playhouse from her backyard. The Ramirez family paid $15,000 at a charity auction for the 6,000-pound, ten-feet-tall playhouse. Twenty-four hours after it was delivered, the Heritage Lakes Homeowners Association sent the family a threatening letter that demanded the playhouse be gone in 30 days or the Ramirez family would be fined $100 a day.
"Can you imagine trying to explain to an eight-month-old and a six-year-old that one day they're playing and enjoying their playhouse and the next day their playhouse is gone?" Mrs. Ramirez said. The family unsuccessfully appealed to the HOA. In addition to the denial, they were also billed for their appeal. "They charged me for the lawyer," Mrs. Ramirez said. "They put it on my bill - their use of the lawyer and the mediator."
The Ramirez family aren't the only North Texans who have battled with their neighborhood HOAs.
While green may not suit everyone's taste, Thieu Nguyen said it was his family's color of choice for cultural and sentimental reasons. "Green is the most natural color," he said. "Green, grass is green. Trees are green. It's the most natural color."
After a fence at his Plano home was painted green, the neighborhood's HOA quickly sent his family a letter asking them to repaint. The HOA only allows earth colors or stains. However, Nguyen said he thought green was an earth color and refused to repaint. "If I don't fight, then no one will," he said. "So, I have to fight even though I'm in a wheelchair and I struggle a lot to fight with them."
The neighborhood battle over Nguyen's fence started six years ago. The HOA sued him, levying fines and charging attorney fees that now total $1,800. The association is threatening to place a lien on Nyugen's house. The Vietnamese immigrant said the HOA's tactics remind him of his former homeland. "That's just like a communist country," he said. "They won't threaten you or anything. One day they just come in your house and kick you out."
Dallas based SBB Management oversees more than 150 North Texas HOAs. While the company's owner, Fred Shapiro, said HOAs are not perfect, he said they do serve an important purpose. He said their rules, restrictions and covenants are designed to, above all else, maintain property values.
"No one really wants to be heavy-handed, but sometimes people draw a line in the sand and it just doesn't work out that everyone's happy," he said.
Shapiro said while there are problems with HOAs, the vast majority work well and solve most of their problems with homeowners through boards, committees and hearings without fines, liens or court battles. "The developers wouldn't build them if the homeowners didn't want them," he said.
Thirteen years ago, Texas lawmakers created property code 204, which allows HOAs to be forced on homeowners without their consent, even if they have lived in their homes for decades. It also allows associations to pass rules that bind homeowners.
"Judges don't always make the right decisions," said Dr. Robert Bland, University of North Texas public administration professor. "Juries don't always make the right decisions, but that's our imperfect process of governing ourselves." Bland said with the authority given to HOAs in Texas, abuse of power can happen. But he also said some homeowners can be part of the problem when they do not know what restrictions may exist against their property. "An HOA becomes powerful or exercises undue power as a result of citizens becoming somewhat lax," he said.
Organizations pushing for HOA reform are fighting to limit HOAs powers. They want to eliminate the threat of foreclosure and restore homeowner control of their own property. "You have freedom of speech, freedom of expression and the HOA has violated that," he said.
Texas law allows HOAs to foreclose on homes only when fees are unpaid, which reportedly seldom happens.
By STEVE STOLER / WFAA-TV
In Texas, HOAs possess the ultimate weapon, the ability to take one's home. However, some say that's too much control.
For more than 59 million Americans in 300,000 communities, HOAs regulate everything from the color of their homes to when they can leave their garage doors open.
"You can't win," said Sandy Ramirez, a Frisco homeowner. "HOAs will always win."
Mrs. Ramirez shot home video while a giant crane slowly lifted a luxury playhouse from her backyard. The Ramirez family paid $15,000 at a charity auction for the 6,000-pound, ten-feet-tall playhouse. Twenty-four hours after it was delivered, the Heritage Lakes Homeowners Association sent the family a threatening letter that demanded the playhouse be gone in 30 days or the Ramirez family would be fined $100 a day.
"Can you imagine trying to explain to an eight-month-old and a six-year-old that one day they're playing and enjoying their playhouse and the next day their playhouse is gone?" Mrs. Ramirez said. The family unsuccessfully appealed to the HOA. In addition to the denial, they were also billed for their appeal. "They charged me for the lawyer," Mrs. Ramirez said. "They put it on my bill - their use of the lawyer and the mediator."
The Ramirez family aren't the only North Texans who have battled with their neighborhood HOAs.
While green may not suit everyone's taste, Thieu Nguyen said it was his family's color of choice for cultural and sentimental reasons. "Green is the most natural color," he said. "Green, grass is green. Trees are green. It's the most natural color."
After a fence at his Plano home was painted green, the neighborhood's HOA quickly sent his family a letter asking them to repaint. The HOA only allows earth colors or stains. However, Nguyen said he thought green was an earth color and refused to repaint. "If I don't fight, then no one will," he said. "So, I have to fight even though I'm in a wheelchair and I struggle a lot to fight with them."
The neighborhood battle over Nguyen's fence started six years ago. The HOA sued him, levying fines and charging attorney fees that now total $1,800. The association is threatening to place a lien on Nyugen's house. The Vietnamese immigrant said the HOA's tactics remind him of his former homeland. "That's just like a communist country," he said. "They won't threaten you or anything. One day they just come in your house and kick you out."
Dallas based SBB Management oversees more than 150 North Texas HOAs. While the company's owner, Fred Shapiro, said HOAs are not perfect, he said they do serve an important purpose. He said their rules, restrictions and covenants are designed to, above all else, maintain property values.
"No one really wants to be heavy-handed, but sometimes people draw a line in the sand and it just doesn't work out that everyone's happy," he said.
Shapiro said while there are problems with HOAs, the vast majority work well and solve most of their problems with homeowners through boards, committees and hearings without fines, liens or court battles. "The developers wouldn't build them if the homeowners didn't want them," he said.
Thirteen years ago, Texas lawmakers created property code 204, which allows HOAs to be forced on homeowners without their consent, even if they have lived in their homes for decades. It also allows associations to pass rules that bind homeowners.
"Judges don't always make the right decisions," said Dr. Robert Bland, University of North Texas public administration professor. "Juries don't always make the right decisions, but that's our imperfect process of governing ourselves." Bland said with the authority given to HOAs in Texas, abuse of power can happen. But he also said some homeowners can be part of the problem when they do not know what restrictions may exist against their property. "An HOA becomes powerful or exercises undue power as a result of citizens becoming somewhat lax," he said.
Organizations pushing for HOA reform are fighting to limit HOAs powers. They want to eliminate the threat of foreclosure and restore homeowner control of their own property. "You have freedom of speech, freedom of expression and the HOA has violated that," he said.
Texas law allows HOAs to foreclose on homes only when fees are unpaid, which reportedly seldom happens.
By STEVE STOLER / WFAA-TV
New York Attorney General's Open Letter About Homeowners Associations -- Though Not Controlling In Texas, Interesting Nonetheless
HOW TO HANDLE PROBLEMS WITH YOUR HOMEOWNERS ASSOCIATION
Members of homeowners associations who are unhappy with how their association is acting (or not acting) often do not know what they can do. This paper is designed to tell such homeowners about some of their rights. In most cases there is no government agency that can help unhappy owners who are having problems with their homeowners association (HOA). The Attorney General's office regulates only the offer and sale of real estate securities (which includes interests in HOAs). It generally does not become involved in owners’ problems with boards of directors after the sponsor is no longer in control of the board. However, this office may be able to help you if the sponsor of the HOA is not keeping the commitments which it
made in the offering plan.
As you may know, a homeowners association is an organization established to govern a private community. Typically it owns and manages some common property for owners of private houses or condominium units. By buying a lot and/or home, an owner automatically becomes a member of the HOA of which it is a part. Before offering to sell memberships, a sponsor must file an offering plan with the Attorney General if sales of individual homes, lots or condo units are involved, unless it is exempted by law or regulation.
Most HOAs are corporations established under the Not-for-Profit Corporation
Law. An HOA is similar to other corporations -- it is governed by a board of directors elected by the members and a set of rules called by-laws. Books and records of financial transactions must be kept, taxes paid, and certain services provided to members. Usually the board has an annual budget prepared to estimate expenses, and then assesses each member a share of the costs.
HOAs vary greatly in the services which they provide. The developer establishes the scope of the association initially by setting out the services and expenses
in the association's budget. The declaration provides the means by which the association can enforce the members' obligations and the by-laws set forth the procedures for running the association. Generally, the developer controls the association at first and relinquishes control to the individual owners some years later.
The primary purpose of the association is to protect and preserve the value of the privately and commonly used property. In furtherance of that goal there may be
restrictions concerning pets; requirements as to fence height; or limitations on the number of cars allowed in the driveways. These rules often conflict with the desires of an individual owner but exist for the general good of the entire community. In addition, the association may have the responsibility to repair and maintain portions of the community, such as roads, roofs, and recreation facilities.
The individual owner in a homeowners association has the opportunity to become involved and participate in the on-going affairs of the community, and the
responsibility to assure that the association's actions conform to the by-laws and
declaration.
Typical Problems
Perhaps your HOA seems dormant -- you never receive notice of meetings, nor are you given financial statements which explain how the assessments you pay are being spent. Perhaps repairs are neglected and snow not removed as quickly as you
expect. Or a nuisance created by your neighbor is allowed to continue. Maybe one owner is allowed to build a deck and another is refused permission to do the same thing. These problems may arise while the association is still under the developer's
control. Be aware that the HOA is an independent body whose functions must not be
merged with the corporate functions of the developer. The developer creates and controls the association initially, but has a duty to protect the investment of the members and to respond to the needs of the association with a sense of fairness and good faith. From the time of the first closing with a member, the developer must abide by the terms of the offering plan, the by-laws of the association and the declaration in the same way that a later independent board must.
Get the Facts
The way to begin dealing with your problems with the board is to understand what rights you have. There are two kinds of research to do.
A. Check the documents for your HOA -- the declaration, certificate of incorporation, and by-laws. Copies of these document should be available from the board of directors or developer; a copy of the declaration and by-laws is in your offering plan.
These documents should include information on:
. what the HOA is responsible for
. how the declaration can be amended (including percentage required)
. how members of the board of directors are elected
. how members of the board can be removed
. the powers and duties of the board of directors
. how annual owner meetings are called
. how special meetings are called
. what remedies exist when a homeowner defaults on his or her obligations including maintenance charges.
B. Look at the Not-for-Profit Corporation Law, the New York State law which
governs the establishment of most homeowners associations. The decisions made by
courts in cases involving the law are the case law which interprets the statute.
The Not-for-Profit Corporation Law (NPCL) is published as volume 37 of McKinney's Consolidated Laws of New York Annotated ("McKinney's") which can be found in law libraries, many lawyers' offices, and in certain public libraries. Included in volume 37 are brief descriptions of case decisions. Important provisions of the NPCL and the sections in which they are found, include the following:
An HOA may have different classes of members. NPCL §601.
By-laws may be adopted, amended or repealed by the members with the appropriate vote, as provided in the by-laws. NPCL §602.
A meeting of the members is to be held annually. NPCL §603.
Members may call special meetings, as authorized in the certificate of
incorporation or by-laws, or if at least 10 percent of the members wish to do
so. NPCL §603.
Directors may be elected at a special meeting. NPCL §604.
Proxies (authorizing another member to vote for you) are permitted subject
to provision in the by laws or certificate of incorporation. NPCL §609.
Members may request that elections be supervised by an inspector. NPCL §610.
The right to vote may be limited by the certificate of incorporation or by-laws.
(For example, there may be no right to vote until the developer gives up
control.) NPCL §612.
Action may be taken on written consent of members without a meeting.
NPCL §614.
Members may demand to see the corporate books and records of accounts, minutes of meetings, and a list of members. NPCL §621.
A derivative action may be brought by five percent or more of the members of the corporation. NPCL §623.
Directors may be removed with or without cause, as determined by the certificate of incorporation and by-laws. NPCL §706.
Unless restricted by the certificate of incorporation or by-laws the board of
directors may take action without holding a meeting if all members of the
board consent in writing to the action. NPCL §708.
Certain actions by a director or officer constitute a conflict of interest, and
may be void or voidable if no disclosure was made. NPCL §715.
Directors and officers must act in good faith and with reasonable diligence,
care and skill. NPCL §717.
Directors and officers may be sued for misconduct. NPCL §720.
Resolving the Problem: First Approach
If the board of directors is not complying with its own certificate of incorporation, declaration or by-laws, you should point this out, in a tactful way, expressing the expectation that the matter will be corrected. Sometimes this is all that is needed to solve a problem. If a simple oral request to an officer of the board fails, you can write a letter. It should be factual, brief and not hostile. Keep copies of any letters that you send, and notes of telephone conversations (the date, time, who called whom, and the gist of the discussion) in case the matter is not quickly resolved. An attempt to influence the board is always more persuasive if it is presented by a significant number of members. If your problem is one that others are affected by, it is worth organizing the other members. If you do, and the attempt to change the situation is not successful, the organized group can always seek to elect new directors at the next annual meeting.
Retaining a Lawyer
If your efforts to resolve your problems with the board fail, you may want to
retain a private lawyer. The Attorney General's office cannot recommend private lawyers. However, a few points may be helpful.
. It is a good idea to select someone with experience in handling HOA problems. You
could begin looking for an attorney by talking with members in your or other HOAs and with attorneys in other specialty areas. If this fails, you may wish to contact a local Bar Association for referrals.
. Some lawyers will not charge for a single initial consultation or will charge only a minimal fee.
. Most lawyers will attempt to resolve any matter through negotiation before considering litigation, as litigation is costly and usually lengthy. Litigating against the board of an HOA, people with whom one lives, can also be very unpleasant.
In Conclusion
If serious problems arise, which the board is not addressing, such as a bank's
threatening to foreclose on a mortgage on the Association’s common property or a
developer's failing to pay common charges on unsold houses or lots, it is important to act swiftly. Often such problems can be resolved, relatively simply, if members organize and act right away. Remember that members of HOA boards are usually other owners who are serving without pay. They generally want to resolve problems and keep peace in the community.
Good luck!
Attorney General of the State of New York
Members of homeowners associations who are unhappy with how their association is acting (or not acting) often do not know what they can do. This paper is designed to tell such homeowners about some of their rights. In most cases there is no government agency that can help unhappy owners who are having problems with their homeowners association (HOA). The Attorney General's office regulates only the offer and sale of real estate securities (which includes interests in HOAs). It generally does not become involved in owners’ problems with boards of directors after the sponsor is no longer in control of the board. However, this office may be able to help you if the sponsor of the HOA is not keeping the commitments which it
made in the offering plan.
As you may know, a homeowners association is an organization established to govern a private community. Typically it owns and manages some common property for owners of private houses or condominium units. By buying a lot and/or home, an owner automatically becomes a member of the HOA of which it is a part. Before offering to sell memberships, a sponsor must file an offering plan with the Attorney General if sales of individual homes, lots or condo units are involved, unless it is exempted by law or regulation.
Most HOAs are corporations established under the Not-for-Profit Corporation
Law. An HOA is similar to other corporations -- it is governed by a board of directors elected by the members and a set of rules called by-laws. Books and records of financial transactions must be kept, taxes paid, and certain services provided to members. Usually the board has an annual budget prepared to estimate expenses, and then assesses each member a share of the costs.
HOAs vary greatly in the services which they provide. The developer establishes the scope of the association initially by setting out the services and expenses
in the association's budget. The declaration provides the means by which the association can enforce the members' obligations and the by-laws set forth the procedures for running the association. Generally, the developer controls the association at first and relinquishes control to the individual owners some years later.
The primary purpose of the association is to protect and preserve the value of the privately and commonly used property. In furtherance of that goal there may be
restrictions concerning pets; requirements as to fence height; or limitations on the number of cars allowed in the driveways. These rules often conflict with the desires of an individual owner but exist for the general good of the entire community. In addition, the association may have the responsibility to repair and maintain portions of the community, such as roads, roofs, and recreation facilities.
The individual owner in a homeowners association has the opportunity to become involved and participate in the on-going affairs of the community, and the
responsibility to assure that the association's actions conform to the by-laws and
declaration.
Typical Problems
Perhaps your HOA seems dormant -- you never receive notice of meetings, nor are you given financial statements which explain how the assessments you pay are being spent. Perhaps repairs are neglected and snow not removed as quickly as you
expect. Or a nuisance created by your neighbor is allowed to continue. Maybe one owner is allowed to build a deck and another is refused permission to do the same thing. These problems may arise while the association is still under the developer's
control. Be aware that the HOA is an independent body whose functions must not be
merged with the corporate functions of the developer. The developer creates and controls the association initially, but has a duty to protect the investment of the members and to respond to the needs of the association with a sense of fairness and good faith. From the time of the first closing with a member, the developer must abide by the terms of the offering plan, the by-laws of the association and the declaration in the same way that a later independent board must.
Get the Facts
The way to begin dealing with your problems with the board is to understand what rights you have. There are two kinds of research to do.
A. Check the documents for your HOA -- the declaration, certificate of incorporation, and by-laws. Copies of these document should be available from the board of directors or developer; a copy of the declaration and by-laws is in your offering plan.
These documents should include information on:
. what the HOA is responsible for
. how the declaration can be amended (including percentage required)
. how members of the board of directors are elected
. how members of the board can be removed
. the powers and duties of the board of directors
. how annual owner meetings are called
. how special meetings are called
. what remedies exist when a homeowner defaults on his or her obligations including maintenance charges.
B. Look at the Not-for-Profit Corporation Law, the New York State law which
governs the establishment of most homeowners associations. The decisions made by
courts in cases involving the law are the case law which interprets the statute.
The Not-for-Profit Corporation Law (NPCL) is published as volume 37 of McKinney's Consolidated Laws of New York Annotated ("McKinney's") which can be found in law libraries, many lawyers' offices, and in certain public libraries. Included in volume 37 are brief descriptions of case decisions. Important provisions of the NPCL and the sections in which they are found, include the following:
An HOA may have different classes of members. NPCL §601.
By-laws may be adopted, amended or repealed by the members with the appropriate vote, as provided in the by-laws. NPCL §602.
A meeting of the members is to be held annually. NPCL §603.
Members may call special meetings, as authorized in the certificate of
incorporation or by-laws, or if at least 10 percent of the members wish to do
so. NPCL §603.
Directors may be elected at a special meeting. NPCL §604.
Proxies (authorizing another member to vote for you) are permitted subject
to provision in the by laws or certificate of incorporation. NPCL §609.
Members may request that elections be supervised by an inspector. NPCL §610.
The right to vote may be limited by the certificate of incorporation or by-laws.
(For example, there may be no right to vote until the developer gives up
control.) NPCL §612.
Action may be taken on written consent of members without a meeting.
NPCL §614.
Members may demand to see the corporate books and records of accounts, minutes of meetings, and a list of members. NPCL §621.
A derivative action may be brought by five percent or more of the members of the corporation. NPCL §623.
Directors may be removed with or without cause, as determined by the certificate of incorporation and by-laws. NPCL §706.
Unless restricted by the certificate of incorporation or by-laws the board of
directors may take action without holding a meeting if all members of the
board consent in writing to the action. NPCL §708.
Certain actions by a director or officer constitute a conflict of interest, and
may be void or voidable if no disclosure was made. NPCL §715.
Directors and officers must act in good faith and with reasonable diligence,
care and skill. NPCL §717.
Directors and officers may be sued for misconduct. NPCL §720.
Resolving the Problem: First Approach
If the board of directors is not complying with its own certificate of incorporation, declaration or by-laws, you should point this out, in a tactful way, expressing the expectation that the matter will be corrected. Sometimes this is all that is needed to solve a problem. If a simple oral request to an officer of the board fails, you can write a letter. It should be factual, brief and not hostile. Keep copies of any letters that you send, and notes of telephone conversations (the date, time, who called whom, and the gist of the discussion) in case the matter is not quickly resolved. An attempt to influence the board is always more persuasive if it is presented by a significant number of members. If your problem is one that others are affected by, it is worth organizing the other members. If you do, and the attempt to change the situation is not successful, the organized group can always seek to elect new directors at the next annual meeting.
Retaining a Lawyer
If your efforts to resolve your problems with the board fail, you may want to
retain a private lawyer. The Attorney General's office cannot recommend private lawyers. However, a few points may be helpful.
. It is a good idea to select someone with experience in handling HOA problems. You
could begin looking for an attorney by talking with members in your or other HOAs and with attorneys in other specialty areas. If this fails, you may wish to contact a local Bar Association for referrals.
. Some lawyers will not charge for a single initial consultation or will charge only a minimal fee.
. Most lawyers will attempt to resolve any matter through negotiation before considering litigation, as litigation is costly and usually lengthy. Litigating against the board of an HOA, people with whom one lives, can also be very unpleasant.
In Conclusion
If serious problems arise, which the board is not addressing, such as a bank's
threatening to foreclose on a mortgage on the Association’s common property or a
developer's failing to pay common charges on unsold houses or lots, it is important to act swiftly. Often such problems can be resolved, relatively simply, if members organize and act right away. Remember that members of HOA boards are usually other owners who are serving without pay. They generally want to resolve problems and keep peace in the community.
Good luck!
Attorney General of the State of New York
As Foreclosures Skyrocket, So Might Homeowners Association Dues
It's no secret that foreclosures have hit epidemic proportions nationwide, including in Texas and Bexar County. Like other Americans, many residents of San Antonio's gated and restricted neighborhoods have fallen victim to the harsh times and reality of a nationwide recession. Foreclosures are way up in San Antonio, and it is not uncommon to find several foreclosed/bank-owned homes in some of our City's larger communities. But these vacancies have bigger implications upon communities subject to homeowners associations and mandatory assessments -- financial implications!
Many HOA bylaws or restrictions do not require banks coming into ownership of properties to HOA dues -- even where the dues are mandatory for other owners of properties in a given neighborhood. Other times, banks simply ignore notices and decline to pay HOA assessments. The obvious results can be disasterous for a community association whose financial viability was determined based upon the assumption that all owners of all lots in a community would contribute to the HOA revenues. When a significant enough number of lots within a community don't pay their fair share, the burdens of maintaining the neighborhood fall upon fewer shoulders. In turn, the burden that each of the paying homeowners has to bear could rise dramatically. Think of it like the baby-boomers becoming eligible for medicare -- there was a point where there were far fewer contributers to the system than there were beneficiaries.
Most Homeowners Association By-Laws and restrictions and covenants authorize HOAs to make additional assessments to ensure that costs are covered. These assessments, by necessity, fall upon those individual homeowners who have not been foreclosed upon. Practically speaking, the foreclosure spike may force many HOAs to increase dues and assessments against their paying members. So, while some homeowners fall into foreclosure, or simply "walk away" from a home in which they maintain equity, it may not be rare for their former neighbors to get stuck with part of the price tag.
This problem is not unique to San Antonio, or Texas. See the following article that appeared in "Gazette.net," an on-line Maryland newspaper:
Many HOA bylaws or restrictions do not require banks coming into ownership of properties to HOA dues -- even where the dues are mandatory for other owners of properties in a given neighborhood. Other times, banks simply ignore notices and decline to pay HOA assessments. The obvious results can be disasterous for a community association whose financial viability was determined based upon the assumption that all owners of all lots in a community would contribute to the HOA revenues. When a significant enough number of lots within a community don't pay their fair share, the burdens of maintaining the neighborhood fall upon fewer shoulders. In turn, the burden that each of the paying homeowners has to bear could rise dramatically. Think of it like the baby-boomers becoming eligible for medicare -- there was a point where there were far fewer contributers to the system than there were beneficiaries.
Most Homeowners Association By-Laws and restrictions and covenants authorize HOAs to make additional assessments to ensure that costs are covered. These assessments, by necessity, fall upon those individual homeowners who have not been foreclosed upon. Practically speaking, the foreclosure spike may force many HOAs to increase dues and assessments against their paying members. So, while some homeowners fall into foreclosure, or simply "walk away" from a home in which they maintain equity, it may not be rare for their former neighbors to get stuck with part of the price tag.
This problem is not unique to San Antonio, or Texas. See the following article that appeared in "Gazette.net," an on-line Maryland newspaper:
At the Hillcrest townhouse development off McCain Drive in Frederick, five homeowners association board members have each ‘‘adopted” a foreclosed home, taking responsibility for mowing lawns, tearing down satellite dishes and cleaning up trash.
The association has no money to hire help to deal with maintenance on the five foreclosed homes in the 80-townhouse community, according to Steve Stoyke, association board member. ‘‘The grass was waist high and that brings down everybody’s property values,” Stoyke said. ‘‘So we mow the lawns and cut down old trees. We clear it up the best that we can ... Some of the neighbors see us taking care of the abandoned homes and now they are taking better care of their homes. It’s worked out good.”
The loss of association dues from residents unable to pay their mortgages has created a financial hardship for some homeowners associations. Dues typically allow associations to pay for services such as trash collection, snow removal and swimming pool maintenance.
At the Clearbrook subdivision off Ballenger Creek Pike in Frederick County, Property Management People has added staff to deal with the mounting number of foreclosures. ‘‘We’re trying to get the association protected the best that we can,” said Ed Thomas, chief executive officer of Property Management People of Frederick. ‘‘The best we can do is to get a lien against the homeowner to protect the homeowner’s association interest. Past-due assessments means less money to run the association ... So many people [are] just walking away from their homes...”
It’s a scenario playing out throughout the country, as a result of the nation’s mortgage crisis. ‘‘It’s a nationwide problem,” said Thomas, who lectures to groups on the foreclosure crisis. ‘‘It’s not isolated to Central Maryland ...”
Thứ Hai, 5 tháng 1, 2009
JUDGE WATCH: Judge Shelton's Daughter Can Do No Wrong?
Over in Houston, Elizabeth Shelton really isn't new news -- back in October 2007, her name was in the papers as the daughter of a Houston judge (Pat Shelton) who had been convicted of intoxication manslaughter in the death of her 19 year old boyfriend, and fined $10,000, after her SUV collided with a box truck on the freeway. She had to serve 120 days in jail (which didn't start until she finished her semester at college) before starting a term of 8 years probation. If she violates the probation, then she serves 5 years in prison.
No one contested that her SUV rear-ended the truck.
Elizabeth Shelton's SUV plowed into the back of a box truck on the Southwest Freeway, killing her passenger.
No one contested the fact that this was a drunk driver case.
No one denied she was drunk. Elizabeth Shelton, the judge's daughter, tested THREE times over the legal blood alcohol content. Evidence included that she cursed at the ER nurse after the accident, and was heard to be telling folk there that her daddy was a judge ....
Her boyfriend was hanging out of the truck per criminal trial testimony.
Oh, and there was evidence that right before the crash, her boyfriend was hanging out the side of the SUV, on the freeway, and that he was almost decapitated upon impact. Whoa.
Her defense was the truck driver changed lanes....
Still, throughout her criminal trial -- and she went to trial, no plea bargain for her -- she argued for her innocence. Her defense? the truck driver made an illegal lane change.
Now, the Judge's daughter is suing the TRUCK DRIVER in civil court ....
Yes. That's right. It's been almost a year since she was sentenced, and now Elizabeth Shelton has filed suit against the truck driver.
Get this: the Judge's daughter wants $20,000 for the property damage to her Lexus SUV and she wants an undisclosed amount for the pain and suffering she's experienced, along with medical expenses and attorneys' fees.
And the JUDGE is also listed as a plaintiiff in this suit. Yes, the JUDGE is suing, too.
No kidding, serious as a heart attack.
Judge Pat Shelton, and his wife, are parties plaintiff right along with their daughter, in this civil suit ... which many try and justify by arguing it's all just a big skirmish necessary to get insurance companies to pay up.
Sure, that explains everything. Like why the media in AUSTRALIA are running this story with the headline, "Someone tell this woman she's an idiot."
Once again, I could not make this stuff up.
Sources:
KTRK-TV
http://abclocal.go.com/ktrk/story?section=news/local&id=6563241
KHOU-TV
http://www.khou.com/news/local/houstonmetro/stories/khou071009_ac_shelton.15350e37c.html
The Inquistr
http://www.inquisitr.com/12769/someone-tell-this-woman-shes-an-idiot/
No one contested that her SUV rear-ended the truck.
Elizabeth Shelton's SUV plowed into the back of a box truck on the Southwest Freeway, killing her passenger.
No one contested the fact that this was a drunk driver case.
No one denied she was drunk. Elizabeth Shelton, the judge's daughter, tested THREE times over the legal blood alcohol content. Evidence included that she cursed at the ER nurse after the accident, and was heard to be telling folk there that her daddy was a judge ....
Her boyfriend was hanging out of the truck per criminal trial testimony.
Oh, and there was evidence that right before the crash, her boyfriend was hanging out the side of the SUV, on the freeway, and that he was almost decapitated upon impact. Whoa.
Her defense was the truck driver changed lanes....
Still, throughout her criminal trial -- and she went to trial, no plea bargain for her -- she argued for her innocence. Her defense? the truck driver made an illegal lane change.
Now, the Judge's daughter is suing the TRUCK DRIVER in civil court ....
Yes. That's right. It's been almost a year since she was sentenced, and now Elizabeth Shelton has filed suit against the truck driver.
Get this: the Judge's daughter wants $20,000 for the property damage to her Lexus SUV and she wants an undisclosed amount for the pain and suffering she's experienced, along with medical expenses and attorneys' fees.
And the JUDGE is also listed as a plaintiiff in this suit. Yes, the JUDGE is suing, too.
No kidding, serious as a heart attack.
Judge Pat Shelton, and his wife, are parties plaintiff right along with their daughter, in this civil suit ... which many try and justify by arguing it's all just a big skirmish necessary to get insurance companies to pay up.
Sure, that explains everything. Like why the media in AUSTRALIA are running this story with the headline, "Someone tell this woman she's an idiot."
Once again, I could not make this stuff up.
Sources:
KTRK-TV
http://abclocal.go.com/ktrk/story?section=news/local&id=6563241
KHOU-TV
http://www.khou.com/news/local/houstonmetro/stories/khou071009_ac_shelton.15350e37c.html
The Inquistr
http://www.inquisitr.com/12769/someone-tell-this-woman-shes-an-idiot/
Chủ Nhật, 4 tháng 1, 2009
WHY PAY A LAWYER -- IN ARIZONA OR TEXAS?????
This morning I arrived in Tempe, Arizona to watch my beloved Texas Longhorns play in a meaningless Fiesta Bowl game tomorrow. This after being robbed by the BCS, which chose OU to go to the National Title Game, despite the fact that Texas beat OU 45-35 on a neutral field this season. There is no justice in college football...but I digress.
As we pulled into the outskirts of Phoenix, we stopped at a parking lot to fix some items that had shifted during the IH 10 trek across 3 states. When we got out of the RV I was amazed to see a business in the parking lot entitled "Why Pay a Lawyer?" The exterior glass pane store front of the business offered a variety of legal services that one would assume clearly require an attorney. Among the "services offered" were "business transactions" and even "litigation."
As I expressed astonishment that a non-lawyer could perform such acts -- which clearly constitute the practice of law -- my friends were quick to point out that the business doesn't ask "why use a lawyer" but instead, why pay a lawyer? I wasn't nearly as amused as they were...
But my curiousity was piqued. How could this be legal in Arizona? Is the State Bar of Arizona that much more lax than the Texas Bar? Was law school a complete waste of time and money for Arizona lawyers? I had to find out...
After just a minute on Google, I found the truth. Arizona's "Why Buy a Lawyer?" enterprise is highly illegal, and the source of lots of problems for its owner, Richard S. Berry. According to a 2006 Order of the Supreme Court of Arizona, Mr. Berry is a former attorney who was disbarred in 1977 (yes 32 years ago). The Order proclaims that Mr. Berry -- operating by and through "Why Pay A Lawyer?" -- has violated his Order of Disbarment, and continues to engage in the practice of law illegally. Even though his storefronts remain, the terms of the Order have effectively shut the operation down. For that, I am happy.
As I have written about before, hiring a lawyer is not an option where important legal matters are concerned -- in Texas or elsewhere...even Arizona. So while Mr. Berry cannot "negotiate the legal rights and responsibilities of others" or "represent others in judicial, quasi-judicial or administrative proceedings," we licensed and regulated attorneys can.
And to answer Mr. Berry's question, you should hire a lawyer to advise and counsel you in matters which are foreign to you, but routine to an experienced lawyer. You should no more let a "non-lawyer" handle your important legal matters than you would let a "non-doctor" diagnose your illness or perform surgery. This is simply unthinkable. One of Mr. Berry's former clients found this out the hard way. Here is his story -- straight from the "Rip-Off Report":
We didn't save a dime; actually, we lost even more than our money. We have lost our property to foreclosure, and lost our Bankruptcy case in the end. Mr. Berry will not accept our phone calls and is always 'in with a client' when we stop by in person. We have since hired an attorney who is handling our case, and we found out that Mr. Berry has been advising us according to old laws, which explains why things went as they did. Our advice: Don't spend your money here; spend a bit more and get a competent attorney who can represent you. If we had done that in the first place, we wouldn't have suffered the losses that we did.
Trey Wilson is a licensed lawyer in San Antonio, Texas. He is offended by "do-it-yourslef" legal programs found on-line and elsewhere. He will sleep better tonight knowing that the Arizona State Bar has disposed of "Why Pay A Lawyer?"
TEXAS HOUSING BILLS DOMINATE 81st LEGISLATIVE SESSION -- PRE-FILED BILLS AIM TO SLOW TEXAS FORECLOSURES
On the housing front, several bills have been filed to protect consumers during foreclosures and to make it easier for consumers to file complaints against builders. Most notable is a bill by Sen. Craig Estes, R-Wichita Falls, that would require foreclosure prevention consultants to list x all services and payments in writing. Dubbed the Foreclosure Rescue Fraud Prevention Act and endorsed by Texas Attorney General Greg Abbott, the bill would prohibit the consultant from getting paid by a third party without prior written disclosure to the homeowner and would not allow the consultant to buy a home from any client.
The most controversial clause may be a provision requiring a buyer to pay at least 82 percent of a property’s fair market value. State Rep. Dawnna Dukes, D-Austin, has filed a bill to require property owners to give renters notice within seven days of receiving notice of a pending foreclosure auction and to allow a tenant to stay in a property through the foreclosure sale. It also would require the foreclosing lender or other entity to give the defaulting property owner 60 days notice before the sale. And buyers of foreclosed properties must give tenants 30 days to move after a foreclosure purchase.
House Bill 311 tries to modify the Texas Residential Construction Commission by stating the commission may not charge fees to homeowners who request an inspection or file a complaint against a builder or remodeler. Currently, homeowners are exempted if they can show an “inability to pay.” The state’s Sunset Advisory Commission recently recommended the TRCC be abolished because of its inability to force builders to make repairs.
Rep. Roberto Alonzo, D-Dallas, is seeking housing relief for immigrants in the wake of efforts by a North Texas suburb to target immigrants. His bill prohibits a property owner from using immigration status as a condition of renting, or even asking if a person is an immigrant.
The most controversial clause may be a provision requiring a buyer to pay at least 82 percent of a property’s fair market value. State Rep. Dawnna Dukes, D-Austin, has filed a bill to require property owners to give renters notice within seven days of receiving notice of a pending foreclosure auction and to allow a tenant to stay in a property through the foreclosure sale. It also would require the foreclosing lender or other entity to give the defaulting property owner 60 days notice before the sale. And buyers of foreclosed properties must give tenants 30 days to move after a foreclosure purchase.
House Bill 311 tries to modify the Texas Residential Construction Commission by stating the commission may not charge fees to homeowners who request an inspection or file a complaint against a builder or remodeler. Currently, homeowners are exempted if they can show an “inability to pay.” The state’s Sunset Advisory Commission recently recommended the TRCC be abolished because of its inability to force builders to make repairs.
Rep. Roberto Alonzo, D-Dallas, is seeking housing relief for immigrants in the wake of efforts by a North Texas suburb to target immigrants. His bill prohibits a property owner from using immigration status as a condition of renting, or even asking if a person is an immigrant.
Thứ Năm, 1 tháng 1, 2009
Name Change in a Divorce
In a divorce, the woman can ask to go back to any name that she's previously used.
It's free!
I'm amazed how many attorneys don't mention this freeby to their clients.
It's free!
I'm amazed how many attorneys don't mention this freeby to their clients.
Adult Name Change
First get 2 copies of your fingerprint cards and call me.
It's easy.
Filing fee is approx. $250 in Harris County. The rest is for my time and to talk you through this process.
At least one court will NOT grant an adult name change without an attorney.
Beware of on-line kits.
It's easy.
Filing fee is approx. $250 in Harris County. The rest is for my time and to talk you through this process.
At least one court will NOT grant an adult name change without an attorney.
Beware of on-line kits.
I ignored my court date
You definately need to hire an attorney ASAP.
If it's been less than 30 days, you can ask for a new trial.
If it's been over 30 days, you have a real mess on your hands.
Run...don't walk...to an attorney's office for advice in person.
If it's been less than 30 days, you can ask for a new trial.
If it's been over 30 days, you have a real mess on your hands.
Run...don't walk...to an attorney's office for advice in person.
I might not be the child's father - what shoud I do?
Ask immediately for DNA testing.
If you don't ask, and the court determines that you are the father, at this time, Texas does not have any way for you to correct it in the future.
I suspect that this law will be revised but right now the legislature has not fully addressed this issue.
If you don't ask, and the court determines that you are the father, at this time, Texas does not have any way for you to correct it in the future.
I suspect that this law will be revised but right now the legislature has not fully addressed this issue.
How will the government collect my past due child support?
There are many ways that the government will collect your past due child support:
1. Any federal refunds.
2. Inheritance -- Yes, they will intervene in a probate and get their money.
3. Social Security - Yes, they will take a portion of your ss to pay your obligation.
4. If you die -- they will intervene in the probate of your estate to get money. This really upsets second wives!
5. You can lose your driver's license.
6. You can lose your passport.
7. You can lose your professional license - chiropractor, attorney, doctor, hairdresser, etc.
Past due child support is an obligation that never goes away.
1. Any federal refunds.
2. Inheritance -- Yes, they will intervene in a probate and get their money.
3. Social Security - Yes, they will take a portion of your ss to pay your obligation.
4. If you die -- they will intervene in the probate of your estate to get money. This really upsets second wives!
5. You can lose your driver's license.
6. You can lose your passport.
7. You can lose your professional license - chiropractor, attorney, doctor, hairdresser, etc.
Past due child support is an obligation that never goes away.
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