Houston Chronicle article by Shannon Buggs

On June 1, 2009, Shannon Buggs wrote an article under "Assets & Values" in the Houston Chronicle about Divorce. In one column she attempted to cover, mediation, collaborative law, DIY divorces, social security issues, etc. Her attempt was excellent! She had limited space and she wrote so that the average reader could grasp what she was conveying. Unfortunately, each paragraph could have been a separate article itself. My only complaint would be the websites she listed for DIY divorces. I'm sure that she "googled" DIY and these were the top sites. It is difficult to compete against these national sites. Their budget is so much greater than mine. Unfortunately, I don't recommend any of these sites. Most of them are located outside of the State of Texas and they claim to be able to give you the forms needed to do your own divorce. They do not include any of the Texas State forms or county forms. They don't include Employer Withholding Orders. I guess that you get what you pay for. I began offering DIY kits to offer people an alternative to these out-of-state sites. My forms are based on the forms that I use for people that retain my legal services. I only sell a kit if I think it will work. I personally talk to each person before preparing the forms. I don't sell you blank forms. I fill in the information so that the forms look like what the judge expects to see. My kits start at $175 and go up to $1,000 -- depends on what I need to do.

Co-signing for a relative

I'm often asked about a person co-signing for a relative or friend. It might be a car, a credit card or a lease.

If you co-sign for anyone, you are on the hook if the person does not pay.

If the person destroys the apartment or vehicle, you are on the hook for the damage.

If the person has been irresponsible in the past, what makes you think that they will NOT do it in the future.

If you want to co-sign for someone, recognize that you are guaranteeing that this person will do what they said they would do. If they don't, the company will look to you 100% for payment.

Be very careful if you co-sign. Be sure you have the money to pay if the person disappears or refuses to pay.

If a person was irresponsible in the last 5 years, I strongly recommend that you NOT co-sign for the person.

If they cannot afford the vehicle, etc., then why would you co-sign for the thing?

Remember, something earned is much more appreciated than something easily attained.

Some people expect to be given things. If you co-sign, recognize that you are basically guaranteeing that you will pay if the person does not perform.

DON'T EXPECT THIS PERSON TO APPRECIATE ANYTHING! IN FACT, THEY WILL GET ANGRY AT YOU IF YOU EXPECT THEM TO PAY THE DEBT!

LASTLY, I'M REALLY SERIOUS! THE PERSON WILL CUSS YOU OUT IF YOU EXPECT THEM TO PAY THIS DEBT. Somehow you will end up being the "evil" person.

What is a holistic Lawyer?

I'm often asked what a holistic lawyer is.

Basically, I look at an the entire situation.

I listen to the client. I ask lots of questions. I try to see the whole picture.

I determine what the potential client wants to accomplish. I then explain to the potential client what I can legally do to accomplish what they want to accomplish.

I often suggestions or alternatives to what they think they want.

One of my favorite examples is when I received a call from a grown daughter. Her parents had been married over 40 years. Dad was accusing Mom of adultery. Dad is angry all the time. Dad had been hitting Mom. I asked the daughter a lot of questions. Had he always been angry? Had he hit her before? Had he had a physical recently? (Answers to all were - no.)

After I learned that Dad had not been to a doctor for over 10 years, I suggested that Dad have a physical. I suspected diabetes, depression, stroke, demensia, Alzheimer's as possible problems. It turned out that Dad was a diabetic, depressed and had the beginnings of demensia.

Instead of a divorce, Dad got on medication, and the entire family began counseling to help all the entire family adjust to aging parents.

Most attorneys would have just done a divorce. It would not have solved the problems.

Steven Keeva's book "Transforming Practices" Finding Joy and Satisfaction in the Legal Life

Steven Keeva was honored at the Chicago meeting of the International Alliance of Holistic Lawyers for the contribution his book made to the practice of law. It was a moving ceremony. I know that his 2 children thoroughly enjoyed it. It gave them an opportunity to see a different side of their dad from attorneys that they had never met.

It was announced at the conference that the ABA has agreed to re-publish his book.

I recently purchased a copy of the book & I highly recommend that every attorney read it.

It is inspirational.

I only wish that I'd read this book while I was in law school.

It was originally published in 1999 and its relevant has grown ten-fold since its original publication.

Steven Keeva was a visionary.

It has a true honor to meet and share an evening with him.

God bless Steven Keeva and his wonderful family!

International Alliance of Holistic Lawyers

Just returned from the annual conference of the International Alliance of Holistic Lawyers. This year in Chicago. I've gone 4 years in a row. Each conference has been unique and inspiring.

Then I came home 3 years ago, I redid my website and business cards to reflect that I'm a "holistic lawyer". I finally came out of the closet! I expected snickers but instead it has been a brilliant marketing idea. People hear "holistic lawyer" and immediately ask "what's that?". It given me an opportunity to discuss my philosphy and to engage the person in meaningful conversation.

I wish more attorneys would "come out of the closet"!

If you are an attorney, I can only say...try it...you might like it!

As a parent never say never

There is a saying "make my words soft and sweet because tomorrow I may eat them".
When it comes to children, this saying is definately true.

My daughter is now finishing graduate school (ok -- I'm damn proud of her!!!) and she is going to share an apartment with a male. I never thought that her dad and I would both agree that this was a good idea. However, we've known him for several years and the security in the apartment they will be sharing is exceptional.

As a parent, I have often "eaten" the words that I swore I would never say!

So remember...be careful what you say you would NEVER say or do because tomorrow you might eat those very words!

LOL!

Homeowner associations start foreclosures to collect dues

I was interviewed for this article, which appeared in USA Today. Unfortunately, I wasn't quited!


IRVING, Texas — Thousands of Americans who have generally kept up with their mortgages are still in danger of losing their homes because they made a fateful trade-off in this shaky economy: They let their homeowner association dues slide.
Many homeowners are learning to their surprise that condo and neighborhood associations that oversee security patrols, mow lawns, plant flowers and clean the community swimming pool might have the right to foreclose when dues aren't paid. That right is often written into the purchase agreement signed by the homeowner.

"We have compassion for those folks," says Andrew Schlegel, executive vice president for Merit Property Management, which manages more than 140,000 California homes in community associations. "At the same time, we feel for the rest of the homeowners who are paying their dues."

Most people end up saving their homes. HOA boards often work with down-on-their-luck neighbors to come up with some sort of compromise. That's what happened with Lacey Pilat, who lost her job catering lavish corporate parties and nearly lost her two-story house in this Dallas suburb.

The management company for the Beacon Hill homeowner association sent Pilat a foreclosure notice in April after several attempts to collect her $450 annual dues, which paid for the mowing of front lawns. The amount she owed snowballed to $1,800 after penalties and fees. The company eventually agreed to let Pilat and her husband, Steve, pay the debt over time.

Gauging the number of foreclosures nationwide by HOAs is difficult. But in Texas, foreclosure attempts initiated by HOAs in 19 counties are up 30% from two years ago, according to Dallas-based Foreclosure Listing Services. In the San Antonio area alone, foreclosure actions by HOAs jumped to 170 in April from 21 in April 2008, RexReport.com says.

In Florida, attorney Bob Tankel, who represents hundreds of homeowner and condo associations, says he has increased his staff from three to 16 in the past 18 months to handle a mounting caseload of 3,500 open collections. About one-fifth of those cases have reached foreclosure, he says.

In California, Schlegel says more than 6% of the homes that his company manages are in some stage of delinquency on membership dues, up from around 1% in previous years.

More than 59 million people live in more than 300,000 association-governed communities nationwide, according to the Community Associations Institute, the nation's largest group for homeowners and condo boards.

If the house is foreclosed on, it is sold, and the HOA takes what it is owed from the proceeds. Proceeds also go to the bank to pay off the mortgage.

By: Paul Weber, Associated Press

Clean Water Restoration Act On Sentae's Agenda for Tomorrow -- Ranchers and Sportsment Remain Opposed

It appears as if the United States Senate will take up the Clean Water Restoration Act (CWRA) tomorrow. This act would significantly expand federal jurisdiction over private ranches, and many ranching intersts believe that this bill amounts to a giant federal land grab and would be disastrous to U.S. agriculture.

Under current law, the federal government has jurisdiction over "navigable waters of the United States." However, the CWRA would bring federal oversight to activities that affect all "waters of the United States" as opposed to merely "navigable waters" as called for in the original CWA.

"Waters of the United States" is broadly defined in the legislation to include "all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments."

By removing the word "navigable" from the definition, the CWRA would expand federal regulatory control to unprecedented levels-essentially putting road ditches, drainage ditches, and stock tanks on my family's farm under the regulatory strong-arm of the federal government. Further, under the Clean Water Restoration Act, something as simple as constructing a duck blind on private land on or near prime hunting waters could require hunters to submit to a costly and time-consuming permitting process. Like hunters, fishermen and recreational boaters would also find it more difficult to engage in their sports under the CWRA because the construction of fishing piers and boat docks, which can already require a permit under the CWA,18 would likely see enhanced scrutiny under the CWRA. Such construction could be regulated in nearly every instance, as nearly every body of water would qualify for federal oversight.

In my opinion, this bill represents an expansion of federal government into private property rights, and should be opposed.

Enforcement of Restrictive Covenants -- HOA Board Actions are PRESUMED to be Reasonable

Did you know that there is a built-in presumption in the Texas Property Code that an HOA's actions (and the actions of its Board members, attorneys, management companies and other agaents) are PRESUMED to be reasonable? Did you know that in seeking to overcome this presumption, the party challenging the HOA bears the burden of proof? It's true.

Section 202.004(a) of the TPC provides: "An exercise of discretionary authority by a property owners' association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory."

In order to grasp the import of this provision, understanding presumptions is important. A presumption is not evidence but rather a rule of procedure that is overcome when positive evidence to the contrary is introduced. See Green v. Ransor, Inc., 175 S.W.3d 513, 516 (Tex. App.–Fort Worth 2005, no pet.). The presumption “disappears” when evidence to the contrary is introduced. See Republic Nat’l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 558 (Tex. 1976).

There exist many manners in which to contest the reasonableness of an HOA's actions. One of which is by allleging and proving selective enforcement. Be careful, however, as the Texas Courts have usually sided with the HOA unless their actions are, indeed, arbitrary. That means that proving an HOA's properly-authorized action is tough. However, overly-zealous HOAs and their agents do act "arbitrary, capricious, and/or discriminatory" in many circumstances. With the right facts, careful presentation of evidence, and an attorney knowledgable in HOA law (particularly Title 11 of the Texas Property Code), an owner can porevail in her claims that an HOA's actions are illegal or unsupported by law. In those instances, an owner might well obtain relief from oppressive HOA actions and even recover attorneys' fees and costs.

Battle Brewing in Cadillac Drive Neighborhood Covenant Dispute

For the last several monnths, a battle has been brewing in the Cadillac Drive neighborhood. The picturesque, oak-lined street with estate-sized lots and a country-in-the-city feel is deeply divided. On one side, the Chabad Lubavitch Jewish organization proposes to construct a new 15,000 square foot synagouge on a lot zoned (at least in part) for residential use. On the other, the neigborhood association has cited the plan as a violation of the restrictive covenants, and demanded that the Rabbi cease and desist with efforts to construct any structure which violates the residential-use-only restrictions on the lot.

Of course, it is never that simple...there are factors that complicate both sides of the coin, and their respective arguments. First, the Rabbi lives on Cadillac Drive -- actually right between two members of the CDNA Board of Dirctors. Second, it is claimed that religious services have been performed on the lot for years, with no prior complaints by the Association. Third, the lot in question has dual zoning from the City of San Antonio, and dual classifications under the restrictive covenants -- half )(the back half) is within the neighborhood association's jurisdiction while the other half is exempted. Fourth, and perhaps most interesting, is the fact that the Rabbi and his wife voted many years ago in favor of placing the residential-use only restrictions on the lot where the synagouge is now proposed.

Our firm initially represented the neighborhood association, and issued the letter directing the CL to cease and desist with violations of the restrictions. In addition, we participated in conducting and noticing an election, whereby the membership of the Association could vote whether to make an exception to the restrictions, and authorize construction of the synagouge on the lot in question. This election resulted in an overwhelming denial of the requested amendment.

As of this writing the parties remain locked in a stand-off. The Association and its Board have spoken. However, the Rabbi and his legal team have taken note of a provision in the Restrictive Covenants that allow them to be amended by a majority of the Owners. Thus, there is an effort underway to secure -- by petition -- enough votes to amend the Restrictions in much the manner previously denied by the Association's membership.

Only time will tell...

Farm and ranch groups want special session to toughen eminent domain law

Measure passed by lawmakers calls for election to decide whether to restrict land seizure for economic development
LUBBOCK — Texas farm and ranch groups are glad lawmakers have taken steps to revisit eminent domain law but say it's "nowhere near" what's needed in a state where most land is privately held.

Texas Farm Bureau spokesman Gene Hall said that if voters approve a constitutional amendment in November, it would bring "improved but still bad eminent domain law" to the state.

"It's less than half a loaf," he said, describing the bill that emerged from the recently completed session. "The fight goes on."

A measure approved by lawmakers — House Joint Resolution 18 — puts a constitutional amendment on November's ballot that would prohibit the government from taking private property exclusively for economic development.

The move, negotiated by House and Senate lawmakers, addresses a 2005 Supreme Court decision that gave New Haven, Conn., the right to take private property and turn it over to private developers for retail development.

The Institute for Justice, which represented the property owner in the Connecticut case, Kelo et al v. City of New London, has called the amendment "dangerous" and said it still would allow governments to take land for economic development. The group says eminent domain should only be allowed for public-use projects such as a new courthouse or library, and it supports the House version of the amendment, which it says has stronger protections for property owners.

The proposed amendment would specify what qualifies for eminent domain projects, but allow exceptions with the support of two-thirds of each legislative chamber.

Together with Texas cattle industry groups, the Farm Bureau is hoping that Gov. Rick Perry will call a special session and that eminent domain will be on the list of items to be discussed.

Perry has not said whether he intends to call a special session.

If he does, the additional protections for private property owners that were part of SB18 — a bill that died in the Legislature — should be taken up, said officials with the Farm Bureau, Texas Cattle Feeders Association and the Texas and Southwestern Cattle Raisers Association. Those provisions include offers that represent fair market value, compensation to landowners for diminished access to their property and the right to repurchase the land at the same price for which it was sold if nothing is done with it after 10 years.

Texas leads the nation in private property ownership, having three times more than any other state.

Perry and U.S. Sen. Kay Bailey Hutchison have both indicated that eminent domain probably will be a campaign issue in their 2010 Republican primary.

A spokesman for Sen. Craig Estes, R-Wichita Falls, the author of SB18, said the lawmaker was "very disappointed" that the bill did not survive. But the issue is far from gone, spokesman Jody Withers said.

"I think there's a general agreement that the provisions ... are still needed," he said.

A spokesman for a group outside the agriculture industry that is pushing eminent domain reform came away from the legislative session less distressed than those tied directly to the industry.

"Property rights are very important and always need to be addressed, but I think we've made great progress here, and I don't see an urgency to deal with the issue now that HRJ18 passed," said Bill Peacock, director of the Center for Economic Freedom at the Austin-based Texas Public Policy Foundation.

If Perry doesn't call a special session, projects will go forward quickly while eminent domain restrictions remain the same, said Kirby Brown, executive vice president of the Texas Wildlife Association, a nonprofit that works to conserve, manage and enhance wildlife and its habitat on private land.

"We do expect them to do that," he said. "I think it would be naive of anyone not to fast track projects and use the current eminent domain process to avoid what SB18 would have protected landowners from. I'm not optimistic."

By Betsy Blaney, ASSOCIATED PRESS

Top 10 reasons to mediate

Why should you consider using mediation to resolve your legal problems:

1. usually it's free or inexpensive
2. it is fair and neutral
3. it saves time & money
4. it's confidenial
5. it avoids litigation
6. it encouarges cooperation
7. it improves communication
8. you are actively involved in resolving your conflict
9. it encourages creative solutions to your conflict
10. it is a win-win situation!

Record Keeping and the Standard Property Management Agreement

Are you an Investor with rental properties in Texas currently under management by a broker or other property manager? Or perhaps you are a manager charged with overseeing and manager rental or investment properties owned by another. Chances are, if you own or manage rental properties in San Antonio, you will be confronted with a property manager's record keeping obligations under the standard Texas Association of Realtors ("TAR") Residential Leasing and Property Management Agreement (TAR Form 2201).

This form requires that the property manager remit to the property owner EACH MONTH a statement of receipts, disbursements, and charges. This means that an Owner should be receiving MONTHLY communications from the manager reflecting rental and other income, as well as a statement of disbursements (such as repair/maintenance costs incurred, utilities paid, management fees collected, and general costs of marketing or opertaing the property). Failure to remit these statements could be considered a breach of the Management Agreement, and could invalidate the manager's right to future management fees.

While there is no particular form prescribed for the statement, its required contents (including actual receipts) are fairly straight-forward. The prudent property manager will use the MONTHLY STATEMENT requirement as an effective tool to communicate with the owner/client, and as a tool to analyze whether the property is receiving its maximum return.

Part 4: Public Works Contracts & Subcontractors: Prime Contracts Over $25,000.00 & Retainage

Like in private construction projects, in public works projects, general contractors hold back part of the contract price until the subcontractor fulfills the contract as “retainage.” The amount withheld is a percentage of the total contract price, often around 10%. The retained money is supposed to be paid to the subcontractor after the public works contract (the contract between the governmental entity and the general contractor) is completed. If the general contractor does not pay the retained money, the subcontractor can file a lawsuit to collect on the payment bond; however, the subcontractor must first meet the notice requirements.



The subcontractor must give notice to the general contractor and surety on or before 90 days after final completion of the public works contract. The notice must include the amount of the contract, any amount paid, and the outstanding balance. Tex. Gov’t Code § 2253.046. The notices must be mailed by the proper method and to the proper addresses.



Once again, sending the notices timely, to the correct people, and with the correct content is crucial to perfect a claim retainage.



Texas law governing public projects can be found in Texas Government Code Chapter 2253 (formerly known as the McGregor Act) and Texas Property Code Chapter 53.



Please visit our blog again in a few days for Part 5: Public Works Construction Projects & Subcontractors: Prime Contracts Over $25,000.00 & Rights to Information.



Posted by Sarah F. Berry.

DA Watch: Former Jim Wells County DA Joe Frank Garza Spent Millions in Drug Money on Vegas Trips and 3 Secretaries

Down in Alice, Texas, where US Highway 281 runs through on its way from the US -Mexico border through the heart of Texas up to Dallas and beyond, there's lots of drug busts. Law enforcement in Jim Wells County stops all sorts of vehicles on its patch of US 281, confiscating all kinds of drugs -- as well as cash.

Apparently, lots and lots of cash. We're talking millions.

Over Four Million Dollars in Drug Forfeiture Money Was Spent by Former DA Garza on Trips to Vegas and Other Interesting Stuff

Joe Frank Garza was the District Attorney for Jim Wells County for a number of years, until his opponent campaigned in Alic, and elsewhere on issues regarding Garza's spending habits, and beat him in the last election.

Now, new DA Armando Barrera is beginning to report his findings on what was happening with the drug forfeiture money. First, Barrera is reporting that there was no checks and balances here: Garza spent the cash without anyone double-checking what he was doing with it.

And what was Joe Frank Garza doing with all that cash?

Barrera's reporting that Garza spent lots of money on travel to Vegas.

Garza's response is that there were lots of seminars in Vegas. He and
his employees went on lots of seminars ... legal seminars, to educate
themselves.

Barrera's reporting that Garza spent lots of money on three particular secretaries.

Garza's response is that the cash was for extra pay to lots of folk within his jurisdiction.

The Numbers So Far

The media is reporting these tallies (the audit/investigation is ongoing, this information comes from data provided by Garza to the Attorney General's office) from 2000 - 2007 (excluding 2002) where Garza spent $4.2 million:

1. $2.1 million was spent on "salary supplements", and while Garza had a staff of 15 who did get bonus pay, Barrera (and the county commissioner heading up the investigation) are reporting that most of this total went to just three people, three secretaries who worked for Garza.
2. $267,449 on travel.
3. $581,000 in operating expenses.
4. $19,987 on equipment.
5. $154,213 on supplies.

Has a Law Been Violated by Garza?

Garza is adamant that he has done nothing wrong. It was totally within his power to spend this drug money as he saw fit. Right now, state and county laws are being reviewed to see if this is true, or if Garza has violated either civil or criminal laws by his actions.

Stay tuned.

Sources:

Corpus Christi Caller Times
http://www.caller.com/news/2009/may/27/jim_wells_forfeiture/