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Thứ Năm, 28 tháng 1, 2010
Chủ Nhật, 24 tháng 1, 2010
Check out my blog on IAHL.
As a board member of the International Alliance of Holistic Lawyers, I've been asked to write a blog entry once a month. Here is my first entry:
After IAHL’s North Carolina conference three years ago, I ordered new business cards that said “holistic attorney, counselor at law & mediator”. I came out of the closet as a holistic attorney.
Soon after I began using the term “holistic attorney” I received a phone call from an opposing counsel on a difficult family law case. This attorney is a successful attorney with the reputation for being an overly aggressive and for pulverizing his opposing counsel. He was known for never settling a case and for refusing to attend mediation. He is also known as being a total control freak and has a reputation for filing contempt actions for minute matters that are normally settled between the attorneys. If this attorney is opposing counsel on a case, it is assumed that the divorce will run thousands of dollars.
After I said “hello” the first words out his mouth was something like “how dare you tell your client…” and he went on for several minutes accusing me of doing all sorts of irrational and unethical things. I almost laughed because I had done none of the things I was being accused of doing. However, I knew that laughing would only escalate his aggression toward me. My initial reaction was to fire back at him with a barrage of accusations about his client. At the beginning of the conversation, he tried to “bait” me into a verbal battle. No matter what I said, he would fire back with even stronger accusations and he hinted that he would “wipe the courthouse floor with me”.
I decided this was an opportunity to act as peacemaker and to put my holistic practices into play. I took a few deep breaths and asked him some questions from my heart. I then actively listened to his answers. I calmly kept asking him for additional information. No matter what he said I remained calm and respectful. I refused to fight with him. Gradually he began to calm down. His tone softened. He started talking slower. By opening my heart and responding in a non-aggressive manner, I gradually took control of the conversation. At the end of the telephone conversation, he actually apologized to me for jumping to conclusions. He also said that he knew we would be able to settle this case without going to trial. I was shocked due to his reputation for never backing down and for never admitting he was wrong.
When I hung up the phone, I felt peaceful and at ease. I recognized that I had all the power in the telephone call because I remained calm and did not attack him. Instead of being upset, I was felt good and energized. I had now had proof that being a peacemaker (aka holistic attorney) could work.
After IAHL’s North Carolina conference three years ago, I ordered new business cards that said “holistic attorney, counselor at law & mediator”. I came out of the closet as a holistic attorney.
Soon after I began using the term “holistic attorney” I received a phone call from an opposing counsel on a difficult family law case. This attorney is a successful attorney with the reputation for being an overly aggressive and for pulverizing his opposing counsel. He was known for never settling a case and for refusing to attend mediation. He is also known as being a total control freak and has a reputation for filing contempt actions for minute matters that are normally settled between the attorneys. If this attorney is opposing counsel on a case, it is assumed that the divorce will run thousands of dollars.
After I said “hello” the first words out his mouth was something like “how dare you tell your client…” and he went on for several minutes accusing me of doing all sorts of irrational and unethical things. I almost laughed because I had done none of the things I was being accused of doing. However, I knew that laughing would only escalate his aggression toward me. My initial reaction was to fire back at him with a barrage of accusations about his client. At the beginning of the conversation, he tried to “bait” me into a verbal battle. No matter what I said, he would fire back with even stronger accusations and he hinted that he would “wipe the courthouse floor with me”.
I decided this was an opportunity to act as peacemaker and to put my holistic practices into play. I took a few deep breaths and asked him some questions from my heart. I then actively listened to his answers. I calmly kept asking him for additional information. No matter what he said I remained calm and respectful. I refused to fight with him. Gradually he began to calm down. His tone softened. He started talking slower. By opening my heart and responding in a non-aggressive manner, I gradually took control of the conversation. At the end of the telephone conversation, he actually apologized to me for jumping to conclusions. He also said that he knew we would be able to settle this case without going to trial. I was shocked due to his reputation for never backing down and for never admitting he was wrong.
When I hung up the phone, I felt peaceful and at ease. I recognized that I had all the power in the telephone call because I remained calm and did not attack him. Instead of being upset, I was felt good and energized. I had now had proof that being a peacemaker (aka holistic attorney) could work.
Thứ Bảy, 23 tháng 1, 2010
When I hear that I've never received paperwork from the Court
Many courts do NOT send you paperwork. It is time consuming and costs money to mail documents.
Generally within the State of Texas, if you want a copy of a legal document that has been signed by the Judge, you need to go to the District Clerk's office where the legal matter was handled and pay for it. In Harris County, the fee is $1 per page (cash or credit card only), no personal checks are accepted.
If you are waiting for a court to mail you something, you will probably be waiting a LONG time. If you ever get any paperwork, you are truly LUCKY!
Generally within the State of Texas, if you want a copy of a legal document that has been signed by the Judge, you need to go to the District Clerk's office where the legal matter was handled and pay for it. In Harris County, the fee is $1 per page (cash or credit card only), no personal checks are accepted.
If you are waiting for a court to mail you something, you will probably be waiting a LONG time. If you ever get any paperwork, you are truly LUCKY!
Siging a WAIVER OF SERVICE in Texas
BEWARE! If you sign a document called A WAIVER OF SERVICE within the State of Texas, you are basically telling the JUDGE to proceed without you and ANYTHING in the final paperwork is ok with you.
MOST RECENT HORROR STORY: One gentlemen emailed me today. He wanted a quick and easy divorce. He did NOT hire or even talk to an attorney. He signed the WAIVER OF SERVICE that his wife's attorney prepared. The divorce was supposedly (he does not know) granted in November 2009. The paperwork that the Judge signed said that he would make her car note payments until the vehicle is paid for and pay her alimony of over $1,000/month for the next 3 years. He can't make these payments. She is treatening to throw him in court.
YOU GET WHAT YOU PAY FOR! If you want to save money on legal fees, it might end up costing you thousands of dollars to fix it!
PLUS: Many times you are TOO LATE to modify the final paperwork that the JUDGE signed.
MOST RECENT HORROR STORY: One gentlemen emailed me today. He wanted a quick and easy divorce. He did NOT hire or even talk to an attorney. He signed the WAIVER OF SERVICE that his wife's attorney prepared. The divorce was supposedly (he does not know) granted in November 2009. The paperwork that the Judge signed said that he would make her car note payments until the vehicle is paid for and pay her alimony of over $1,000/month for the next 3 years. He can't make these payments. She is treatening to throw him in court.
YOU GET WHAT YOU PAY FOR! If you want to save money on legal fees, it might end up costing you thousands of dollars to fix it!
PLUS: Many times you are TOO LATE to modify the final paperwork that the JUDGE signed.
"Comments on my blog"
I regularly receive emails reflecting that someone "commented on my blog". Unfortuntately, many are in languages unknown to me!! And, most are irrelevant and are just advertising something they are selling.
I'm trying to avoid any of this bogus comments from appearing on this blog. Forgive me if a few get in!
In summary, if you read something on any website -- take it with a grain of salt! In other words, don't take the internet as the gospel.
I'm trying to avoid any of this bogus comments from appearing on this blog. Forgive me if a few get in!
In summary, if you read something on any website -- take it with a grain of salt! In other words, don't take the internet as the gospel.
Chủ Nhật, 17 tháng 1, 2010
EMANCIPATION OF A MINOR CHILD -- WITHIN THE STATE OF TEXAS
I am getting at least one phone call or email per day from a teen-ager wanting to be emancipated. I'm so tired of answering the same question that I'm just going to refer everyone to my blog from now on!
Emancipation is called REMOVAL OF DISABILITIES OF MINORITY in the State of Texas.
The Texas Family Code is on-line and can be located by using any major search engine.
Look for Chapter 31 in the Texas Family Code.
Basically, on rare occasions, a 17-year-old (or even a 16-year-old) may be sufficiently INDEPENDENT and SELF-SUPPORTING to be eligible for the limited removal of disabilities permitted by Chapter 31 of the Texas Family Code.
Although the general rule within the State of Texas is that the minor will then have the power and the capacity of an adult, a wide variety of specific constitutional and statutory restrictions based on age will still remain in place - such as the ability to vote or to drink.
One 14-year-old emailed me asking if she got pregnant could she be emancipated. The answer is NO-- she is not old enough under the law within the State of Texas and she does not qualify to even apply for emancipation. Therefore, she would be a minor child with a baby (who is also a minor child). Both she and her child would have to follow her parent's rules. I don't suggest pregnancy as a way to escape your parental control since it won't work!
Under Chapter 31, the child must be a resident of Texas and be 17 (or 16 and LIVING SEPARATE AND APART FROM THE MINOR'S PARENTS OR MANAGING CONSERVATOR);
AND
be self-supporting and managing their own financial affairs.
(FYI: A boyfriend does NOT count as self-supporting!)
The minor must file a legal document, called a PETITION FOR REMOVAL OF DISABILITIES to ask a Judge to sign an ORDER to remove their disabilities. There is a filing fee of approximately $300 that is required at the time of filing the petition, a legal document.
The PETITION FOR REMOVAL OF DISABILIITES must state:
1. the name, age and place of residence of the child;
2. the name and place of residence of each living parent and/or managing conservator and/or guardian;
3. the reasons why the minor child is seeking the removal and why the court should grant it; and
4. the pruposes for which removal is requested.
PLUS: A parent of the petitioner (the minor child) MUST verify the PETITION, except that if a managing conservator or guardian has been appointed, that person MUST verify the PETITION.
IF THE PERSON WHO SHOULD VERIFY THE PETITION IS UNAVAILABLE OR THAT PERSON'S WHEREABOUTS ARE UNKNOWN, THE AMICUS ATTORNEY OR ATTORNEY AD LITEM SHALL VERIFY THE PETITION.
The petitioner shall file the PETITION in the county in which the petitioner resides.
THE COURT SHALL APPOINT AN AMICUS ATTORNEY OR AN ATTORNEY AD LITEM TO REPRESENT THE INTERESTS OF THE PETITIONER (the minor child) AT THE HEARING BEFORE THE JUDGE.
Reminder: The petitioner must pay for the services of an amicus attorney (or attorney ad litem). The prices start at $500 and go up. I've seen $1,500 to $5,000 charged by the attorney based on the amount of work he/she is required to do. FYI: The judge will decide how much work the attorney needs to do.
The court by an ORDER may remove the disabities of a minor child, ONLY IF the court finds the removal to be in the BEST INTEREST of the Petitioner. The order MUST state if it is limited or general removal of all disabilities.
What does the term best interest mean? It is not clearly defined within the Texas Family Code. Basically, it is the primary consideraiton of the court (Judge) in determining the issues regarding the minor child. What does that mean? It differs depending on the Judge.
If a GENERAL REMOVAL OF DISABILITIES is approved, the minor has the capacity of an adult, including the capacity to enter into a contract (such as an apartment lease or buy vehicle). Additionally, all educational rights that normally go to the parent, including the right to make educational decisions, transfer to the minor whose disabilities are removed for general purposes.
IN SUMMARY, the only cases that I've personally seen where a minor's disabilities are removed have been for musicians and sport figures. They need to be able to sign contracts for endorsements, etc.
In 18 years of practicing law primarily in Harris County, Texas, I've only had one teen-ager show up that I thought should have her disabilities removed. After reviewing the prices, she decided NOT to go forward.
There are pro bono (free) services available throughout the State of Texas. Go to the State Bar of Texas website for a list. However, I doubt that most will assist you since their funding and resources are limited.
And, remember, for criminal purposes you are an adult at 17!!
Emancipation is called REMOVAL OF DISABILITIES OF MINORITY in the State of Texas.
The Texas Family Code is on-line and can be located by using any major search engine.
Look for Chapter 31 in the Texas Family Code.
Basically, on rare occasions, a 17-year-old (or even a 16-year-old) may be sufficiently INDEPENDENT and SELF-SUPPORTING to be eligible for the limited removal of disabilities permitted by Chapter 31 of the Texas Family Code.
Although the general rule within the State of Texas is that the minor will then have the power and the capacity of an adult, a wide variety of specific constitutional and statutory restrictions based on age will still remain in place - such as the ability to vote or to drink.
One 14-year-old emailed me asking if she got pregnant could she be emancipated. The answer is NO-- she is not old enough under the law within the State of Texas and she does not qualify to even apply for emancipation. Therefore, she would be a minor child with a baby (who is also a minor child). Both she and her child would have to follow her parent's rules. I don't suggest pregnancy as a way to escape your parental control since it won't work!
Under Chapter 31, the child must be a resident of Texas and be 17 (or 16 and LIVING SEPARATE AND APART FROM THE MINOR'S PARENTS OR MANAGING CONSERVATOR);
AND
be self-supporting and managing their own financial affairs.
(FYI: A boyfriend does NOT count as self-supporting!)
The minor must file a legal document, called a PETITION FOR REMOVAL OF DISABILITIES to ask a Judge to sign an ORDER to remove their disabilities. There is a filing fee of approximately $300 that is required at the time of filing the petition, a legal document.
The PETITION FOR REMOVAL OF DISABILIITES must state:
1. the name, age and place of residence of the child;
2. the name and place of residence of each living parent and/or managing conservator and/or guardian;
3. the reasons why the minor child is seeking the removal and why the court should grant it; and
4. the pruposes for which removal is requested.
PLUS: A parent of the petitioner (the minor child) MUST verify the PETITION, except that if a managing conservator or guardian has been appointed, that person MUST verify the PETITION.
IF THE PERSON WHO SHOULD VERIFY THE PETITION IS UNAVAILABLE OR THAT PERSON'S WHEREABOUTS ARE UNKNOWN, THE AMICUS ATTORNEY OR ATTORNEY AD LITEM SHALL VERIFY THE PETITION.
The petitioner shall file the PETITION in the county in which the petitioner resides.
THE COURT SHALL APPOINT AN AMICUS ATTORNEY OR AN ATTORNEY AD LITEM TO REPRESENT THE INTERESTS OF THE PETITIONER (the minor child) AT THE HEARING BEFORE THE JUDGE.
Reminder: The petitioner must pay for the services of an amicus attorney (or attorney ad litem). The prices start at $500 and go up. I've seen $1,500 to $5,000 charged by the attorney based on the amount of work he/she is required to do. FYI: The judge will decide how much work the attorney needs to do.
The court by an ORDER may remove the disabities of a minor child, ONLY IF the court finds the removal to be in the BEST INTEREST of the Petitioner. The order MUST state if it is limited or general removal of all disabilities.
What does the term best interest mean? It is not clearly defined within the Texas Family Code. Basically, it is the primary consideraiton of the court (Judge) in determining the issues regarding the minor child. What does that mean? It differs depending on the Judge.
If a GENERAL REMOVAL OF DISABILITIES is approved, the minor has the capacity of an adult, including the capacity to enter into a contract (such as an apartment lease or buy vehicle). Additionally, all educational rights that normally go to the parent, including the right to make educational decisions, transfer to the minor whose disabilities are removed for general purposes.
IN SUMMARY, the only cases that I've personally seen where a minor's disabilities are removed have been for musicians and sport figures. They need to be able to sign contracts for endorsements, etc.
In 18 years of practicing law primarily in Harris County, Texas, I've only had one teen-ager show up that I thought should have her disabilities removed. After reviewing the prices, she decided NOT to go forward.
There are pro bono (free) services available throughout the State of Texas. Go to the State Bar of Texas website for a list. However, I doubt that most will assist you since their funding and resources are limited.
And, remember, for criminal purposes you are an adult at 17!!
Ignite -- New account for Fran Brochstein
I've changed my website to make it easier to find me:
http://franb.igniteinc.biz/
Ignite is the marketing arm for Stream Energy. In TX we sell electricity & in GA we sell gas.
I am saving my mom, my sister and myself money. Check it out & see if I can save you money!
In TX you will still be serviced by Centerpoint -- the same companyt that handles electricity for Reliant and TXU. I've been with Stream for almost 9 months and it's exactly the same service as I had with Reliant and TXU.
Call me if you have any questions!
Fran
713-805-9591
http://franb.igniteinc.biz/
http://franb.igniteinc.biz/
Ignite is the marketing arm for Stream Energy. In TX we sell electricity & in GA we sell gas.
I am saving my mom, my sister and myself money. Check it out & see if I can save you money!
In TX you will still be serviced by Centerpoint -- the same companyt that handles electricity for Reliant and TXU. I've been with Stream for almost 9 months and it's exactly the same service as I had with Reliant and TXU.
Call me if you have any questions!
Fran
713-805-9591
http://franb.igniteinc.biz/
Thứ Năm, 14 tháng 1, 2010
San Antonio General Practice Law Firm
The Baez Law Firm, P.C. is a general practice law firm in San Antonio that cares about your legal needs. We offer our clients the resources of a large law firm but with the heart of a small one. All of our clients are important to us.
Whether your need is personal injury, business law, family law or criminal law, we are here to help you with your legal needs. Have you been injured in an accident, or need legal representation, The Baez Law Firm is here to help you with your legal needs.
We help people in San Antonio and throughout Texas with their divorce, child support, criminal cases, or constitutional rights violations. Give us a call (210) 979-9777 or visit our website at The Baez Law Firm, P.C.
Whether your need is personal injury, business law, family law or criminal law, we are here to help you with your legal needs. Have you been injured in an accident, or need legal representation, The Baez Law Firm is here to help you with your legal needs.
We help people in San Antonio and throughout Texas with their divorce, child support, criminal cases, or constitutional rights violations. Give us a call (210) 979-9777 or visit our website at The Baez Law Firm, P.C.
We have represented thousands of clients with their auto accident in San Antonio, the wrongful death of a loved one here in San Antonio or with the criminal defense of wrongfully charged of a crime in San Antonio. Let us help you with your legal needs.
New Braunfels Residents fight rock crushing plant
Bucky Smith has fought, and lost, this battle before.
She has owned a home on five acres of brush off Krueger Canyon Road just west of New Braunfels since the late 1950s — property that today backs up to what is now cement giant CeMex’s Balcones Plant.
When her noisy new neighbors first moved next door under a different owner in the late 1970s, the daily blasting of limestone would carpet her home in a layer of dust, with an occasional chunk of fragmented rock sent crashing through her ceiling and into her living room.
“It was just awful, and we tried fighting it, but it didn’t do any good,” she remembered. “It took a long time for us to find out that there’s no recourse if someone really wants to build something like that next to your property.”
Thirty years later, some of her neighbors might be learning the same lesson.
Aggregate Industries, a subsidiary of Swiss-based global cement supplier Holcim, has applied for an air quality permit from the state to allow it to build a rock-crushing plant among the live oaks off Farm-to-Market 482, within a mile of Smith’s home.
And like she did decades ago, her neighbors are doing whatever they can to stop its construction.
A group of citizens from the area petitioned the Texas Commission on Environmental Quality requesting a hearing to contest the granting of Aggregate’s permit, citing the potential impact from the plant’s emissions on everything from water and air quality to the health of children attending Comal Elementary School.
On Wednesday, TCEQ commissioners ruled that such a hearing should be held to gauge the impact of the plant’s construction on “affected” residents — those, like Smith, who live within one mile of the proposed plant site.
At the request of TCEQ, the hearing will be held by the State Office of Administrative Hearings within the next nine months.
“I think that’s a good thing and I’m glad we’re going to have a hearing,” said State Senator Jeff Wentworth, who also requested the hearing because of the potential adverse affects on the environment and health of local residents.
Ultimately, if Aggregate can prove its emissions won’t have a substantial impact on the environment or residents, a new plant will soon be crushing limestone in western Comal County.
“We’ve got to follow the law, and if they’ve followed the law and can get a permit, they’re going to be entitled to do business in Texas like everybody else,” Wentworth said.
The reason residents can only fight the construction of a new rock-crushing plant or quarry through the state is that county commissioners have little to no authority over land-use — control both Wentworth and Comal County Commissioners have lobbied for for decades.
“I’ve been talking about that for about 25 years,” said Wentworth, a former Bexar County commissioner. “We’ve made some progress, but in relation to not allowing a business, like the one subject to this application, we’ve not given them that kind of authority.”
As such, the only recourse available is to do what Comal residents are doing, asking the state to deny permits.
And while a state hearing now will decide the fate of the proposed plant, Smith said she’s seen it all before, and that her neighbors may as well welcome their new neighbors.
“You can fight like hell, but it won’t do any good,” she said. “I guess it’s one of those necessary evils, you know, for progress.”
Chris Cobb, New Braunfels Herald-Zeitung
She has owned a home on five acres of brush off Krueger Canyon Road just west of New Braunfels since the late 1950s — property that today backs up to what is now cement giant CeMex’s Balcones Plant.
When her noisy new neighbors first moved next door under a different owner in the late 1970s, the daily blasting of limestone would carpet her home in a layer of dust, with an occasional chunk of fragmented rock sent crashing through her ceiling and into her living room.
“It was just awful, and we tried fighting it, but it didn’t do any good,” she remembered. “It took a long time for us to find out that there’s no recourse if someone really wants to build something like that next to your property.”
Thirty years later, some of her neighbors might be learning the same lesson.
Aggregate Industries, a subsidiary of Swiss-based global cement supplier Holcim, has applied for an air quality permit from the state to allow it to build a rock-crushing plant among the live oaks off Farm-to-Market 482, within a mile of Smith’s home.
And like she did decades ago, her neighbors are doing whatever they can to stop its construction.
A group of citizens from the area petitioned the Texas Commission on Environmental Quality requesting a hearing to contest the granting of Aggregate’s permit, citing the potential impact from the plant’s emissions on everything from water and air quality to the health of children attending Comal Elementary School.
On Wednesday, TCEQ commissioners ruled that such a hearing should be held to gauge the impact of the plant’s construction on “affected” residents — those, like Smith, who live within one mile of the proposed plant site.
At the request of TCEQ, the hearing will be held by the State Office of Administrative Hearings within the next nine months.
“I think that’s a good thing and I’m glad we’re going to have a hearing,” said State Senator Jeff Wentworth, who also requested the hearing because of the potential adverse affects on the environment and health of local residents.
Ultimately, if Aggregate can prove its emissions won’t have a substantial impact on the environment or residents, a new plant will soon be crushing limestone in western Comal County.
“We’ve got to follow the law, and if they’ve followed the law and can get a permit, they’re going to be entitled to do business in Texas like everybody else,” Wentworth said.
The reason residents can only fight the construction of a new rock-crushing plant or quarry through the state is that county commissioners have little to no authority over land-use — control both Wentworth and Comal County Commissioners have lobbied for for decades.
“I’ve been talking about that for about 25 years,” said Wentworth, a former Bexar County commissioner. “We’ve made some progress, but in relation to not allowing a business, like the one subject to this application, we’ve not given them that kind of authority.”
As such, the only recourse available is to do what Comal residents are doing, asking the state to deny permits.
And while a state hearing now will decide the fate of the proposed plant, Smith said she’s seen it all before, and that her neighbors may as well welcome their new neighbors.
“You can fight like hell, but it won’t do any good,” she said. “I guess it’s one of those necessary evils, you know, for progress.”
Chris Cobb, New Braunfels Herald-Zeitung
Thứ Hai, 11 tháng 1, 2010
Fired? Former Employer May Profit from your Death: You could end up a 'dead peasant'
HOUSTON — Irma Johnson never really thought of herself as a crusader.
But the quiet widow from The Woodlands has been featured in a Michael Moore movie, watched her story retold on “Good Morning America” and is trying to let others know that their employers may have purchased secret insurance policies on their lives and stand to profit handsomely when they die.
The industry darkly refers to the policies as “dead peasant” life insurance.
And but for a post office error, Johnson might not have learned that when her husband, Dan Johnson, died of brain cancer in 2008, the bank that had fired him years earlier got $4.7 million in insurance proceeds on his life.
After accidentally destroying an envelope containing a check for nearly $1.6 million made out to Amegy Bank, the post office misdirected it to Johnson's home because Dan Johnson's name also was on the check.
Her attorney, Mike Myers of McClanahan Myers Espey in Houston, said she wasn't supposed to know Amegy had the insurance policy on her husband, a project manager whose annual salary had been about $70,000.
“How could they be profiting off my husband?” Johnson asked recently during an interview with the Houston Chronicle.
Friday, Johnson settled a lawsuit she filed to force the bank to reveal it bought policies in 2001 on more than 40 bankers, including coverage on Johnson, who'd been diagnosed with terminal brain cancer about 18 months earlier and been out sick for several months.
She was asking for the net proceeds Amegy received, $3.8 million— the death benefit minus the premiums it paid — and settled for an undisclosed amount.
“We settled to the mutual satisfaction of both parties,” Amegy Bank spokeswoman Leigh Akin said.
In Amegy's formal response in the lawsuit, the bank said it purchased life insurance policies on a group of vice presidents and other officers to offset the cost of providing employee benefits.
Amegy said taking out such policies is a “common practice among banks and other industries and is recognized and permitted by the applicable banking regulatory authorities.”
The policies were voluntary, the bank noted, and Dan Johnson understood he'd be covered indefinitely, even if he left the bank.
Banks have purchased hundreds of billions of dollars of “bank owned life insurance” on the lives of their employees. The policies typically remain in effect years after an employee leaves the bank, Myers said.
Myers said banks receive significant tax advantages on the policies. They can write off the interest they pay on loans to buy the insurance; money invested in the policies grows tax deferred; and if the insured person dies, the death benefit is tax-free.
“It's a very significant investment return for a company in the 40 percent tax bracket,” said Myers, one of the lawyers who sued Wal-Mart over its dead peasant policies and ended up settling for $15.4 million for surviving family members in Texas and Oklahoma. Cases in other states still are pending.
“There are probably a lot of former Amegy employees who are walking around right now who are worth millions of dollars dead to Amegy and they don't know it,” Myers said.
U.S. Rep. Gene Green, D-Houston, charges that companies buy the policies solely for the tax advantage. He's been pushing a bill that would remove the incentive.
“If you don't have an insurable interest in someone, it's an investment,” he said, and should be subject to regular income tax.
Green also regularly files a bill that would force employers to disclose amounts and beneficiaries of such policies. But the legislation hasn't been a front-burner issue as Congress has wrestled with health care reform, a turbulent economy and other priorities.
Dennis Nixon, chairman and president of Laredo-based International Bancshares Corp., defended the use of bank-owned life insurance policies. A bank employee can generate significant benefit costs over the length of their employment, he said, so the policies can help pay for those costs.
“People who participate in those programs consent to those programs,” Nixon said. “Most people are not concerned about it because it doesn't cost them anything.” He called the practice “as common as street addresses.”
Nixon didn't know how many policies International Bancshares has purchased on its employees' lives, but added he wouldn't disclose the number even if he did know.
Dan Johnson was diagnosed with cancer in 1999 and had to learn to speak and to walk again following operations to remove his tumor. By 2001, he was getting warnings that his once-stellar job performance was suffering and was demoted to a nonsupervisory position, according to the lawsuit.
A few months before he was fired in 2001, Johnson was told that he was eligible to receive extra life insurance, Myers said. If he died or was disabled while working at the bank, his wife would receive $150,000.
What wasn't said in the consent form, according to Myers, was that the bank would receive 67 times Johnson's annual salary. That was material information Amegy should have disclosed to its terminally ill employee, Myers argues.
Myers said he also believes the consent form wasn't valid because the bank bought the policies before obtaining permission from Johnson, and that when it did, he wasn't of sound mind.
Amegy said in its filing that it believes Dan Johnson understood the consequence of his actions. It also said he agreed not to sue in the future in exchange for settling a disability complaint he filed with the Equal Employment Opportunity Commission after his termination.
Irma Johnson, a mother of two young boys, said she was perplexed when she opened the envelope with the big check inside just before Christmas 2008 and called the insurance company. She quickly learned the policy wasn't meant for her. Nor did she ever receive the $150,000 portion that she thought she had coming to her.
Her story was featured last year in “Capitalism: A Love Story,” filmmaker Michael Moore's critical examination of U.S. economic practices.
What's especially upsetting, Johnson said, is that her husband couldn't buy life insurance to protect his own family once he found out about his cancer. Yet his employer could, she said.
“To let him go,” she said, shaking her head, “and then to cash in on him like that.”
By L.M. Sixel - Houston Chronicle
But the quiet widow from The Woodlands has been featured in a Michael Moore movie, watched her story retold on “Good Morning America” and is trying to let others know that their employers may have purchased secret insurance policies on their lives and stand to profit handsomely when they die.
The industry darkly refers to the policies as “dead peasant” life insurance.
And but for a post office error, Johnson might not have learned that when her husband, Dan Johnson, died of brain cancer in 2008, the bank that had fired him years earlier got $4.7 million in insurance proceeds on his life.
After accidentally destroying an envelope containing a check for nearly $1.6 million made out to Amegy Bank, the post office misdirected it to Johnson's home because Dan Johnson's name also was on the check.
Her attorney, Mike Myers of McClanahan Myers Espey in Houston, said she wasn't supposed to know Amegy had the insurance policy on her husband, a project manager whose annual salary had been about $70,000.
“How could they be profiting off my husband?” Johnson asked recently during an interview with the Houston Chronicle.
Friday, Johnson settled a lawsuit she filed to force the bank to reveal it bought policies in 2001 on more than 40 bankers, including coverage on Johnson, who'd been diagnosed with terminal brain cancer about 18 months earlier and been out sick for several months.
She was asking for the net proceeds Amegy received, $3.8 million— the death benefit minus the premiums it paid — and settled for an undisclosed amount.
“We settled to the mutual satisfaction of both parties,” Amegy Bank spokeswoman Leigh Akin said.
In Amegy's formal response in the lawsuit, the bank said it purchased life insurance policies on a group of vice presidents and other officers to offset the cost of providing employee benefits.
Amegy said taking out such policies is a “common practice among banks and other industries and is recognized and permitted by the applicable banking regulatory authorities.”
The policies were voluntary, the bank noted, and Dan Johnson understood he'd be covered indefinitely, even if he left the bank.
Banks have purchased hundreds of billions of dollars of “bank owned life insurance” on the lives of their employees. The policies typically remain in effect years after an employee leaves the bank, Myers said.
Myers said banks receive significant tax advantages on the policies. They can write off the interest they pay on loans to buy the insurance; money invested in the policies grows tax deferred; and if the insured person dies, the death benefit is tax-free.
“It's a very significant investment return for a company in the 40 percent tax bracket,” said Myers, one of the lawyers who sued Wal-Mart over its dead peasant policies and ended up settling for $15.4 million for surviving family members in Texas and Oklahoma. Cases in other states still are pending.
“There are probably a lot of former Amegy employees who are walking around right now who are worth millions of dollars dead to Amegy and they don't know it,” Myers said.
U.S. Rep. Gene Green, D-Houston, charges that companies buy the policies solely for the tax advantage. He's been pushing a bill that would remove the incentive.
“If you don't have an insurable interest in someone, it's an investment,” he said, and should be subject to regular income tax.
Green also regularly files a bill that would force employers to disclose amounts and beneficiaries of such policies. But the legislation hasn't been a front-burner issue as Congress has wrestled with health care reform, a turbulent economy and other priorities.
Dennis Nixon, chairman and president of Laredo-based International Bancshares Corp., defended the use of bank-owned life insurance policies. A bank employee can generate significant benefit costs over the length of their employment, he said, so the policies can help pay for those costs.
“People who participate in those programs consent to those programs,” Nixon said. “Most people are not concerned about it because it doesn't cost them anything.” He called the practice “as common as street addresses.”
Nixon didn't know how many policies International Bancshares has purchased on its employees' lives, but added he wouldn't disclose the number even if he did know.
Dan Johnson was diagnosed with cancer in 1999 and had to learn to speak and to walk again following operations to remove his tumor. By 2001, he was getting warnings that his once-stellar job performance was suffering and was demoted to a nonsupervisory position, according to the lawsuit.
A few months before he was fired in 2001, Johnson was told that he was eligible to receive extra life insurance, Myers said. If he died or was disabled while working at the bank, his wife would receive $150,000.
What wasn't said in the consent form, according to Myers, was that the bank would receive 67 times Johnson's annual salary. That was material information Amegy should have disclosed to its terminally ill employee, Myers argues.
Myers said he also believes the consent form wasn't valid because the bank bought the policies before obtaining permission from Johnson, and that when it did, he wasn't of sound mind.
Amegy said in its filing that it believes Dan Johnson understood the consequence of his actions. It also said he agreed not to sue in the future in exchange for settling a disability complaint he filed with the Equal Employment Opportunity Commission after his termination.
Irma Johnson, a mother of two young boys, said she was perplexed when she opened the envelope with the big check inside just before Christmas 2008 and called the insurance company. She quickly learned the policy wasn't meant for her. Nor did she ever receive the $150,000 portion that she thought she had coming to her.
Her story was featured last year in “Capitalism: A Love Story,” filmmaker Michael Moore's critical examination of U.S. economic practices.
What's especially upsetting, Johnson said, is that her husband couldn't buy life insurance to protect his own family once he found out about his cancer. Yet his employer could, she said.
“To let him go,” she said, shaking her head, “and then to cash in on him like that.”
By L.M. Sixel - Houston Chronicle
Chủ Nhật, 10 tháng 1, 2010
Court of Appeals Upholds Eviction and Award of Attorneys' Fees
In its January 6, 2010 opinion in McDonald v. Claremore Apartment Homes, the Fourth Court of Appeals (San Antonio) upheld the Judgment of Eviction entered by Judge Paul Canales, sitting in the Bexar County Court at Law No. 5.
The Appeal involved claims by McDonald that the trial court erred in determining that she had not paid rent for several months in 2008, and that the attorneys' fees awarded to Claremeore were improper.
In overruling McDonald's claim, the Court of Appeals approved Canales' rejection of receipts from 2007 to indicate payment of rent in 2008. The Court also determined that uncontroverted testimony by Claremore's attorney concerning the number of hours spent handling the forcible entry and detainer action satisfied the Texas Property Code's requirements for awarding attorneys' fees to a prevailing landlord.
The opinion was authored by Justice Speedlin.
The Appeal involved claims by McDonald that the trial court erred in determining that she had not paid rent for several months in 2008, and that the attorneys' fees awarded to Claremeore were improper.
In overruling McDonald's claim, the Court of Appeals approved Canales' rejection of receipts from 2007 to indicate payment of rent in 2008. The Court also determined that uncontroverted testimony by Claremore's attorney concerning the number of hours spent handling the forcible entry and detainer action satisfied the Texas Property Code's requirements for awarding attorneys' fees to a prevailing landlord.
The opinion was authored by Justice Speedlin.
Thứ Sáu, 8 tháng 1, 2010
When Is the Seller of Real Estate Liable for Misrepresentations Regarding Restrictions on Use?
As a San Antonio lawyer with an active real estate litigation practice, I'm often confronted with scenarios under which a Seller has assured a Buyer of real property that the property is acceptable for the Buyer's intended use.
There are all kinds of scenarios under which these types of representations are made. Some memorable situations I've encountered relate to use of residential property for commercial purposes, construction of certain facilities on the property, the right of the owner to maintain various animals (pit bulls and horses come to mind), and the existence or non-existence of restrictive covenants.
In some situations the Sellers are clearly misinformed or ignorant about whether the Buyer's proposed activities are permissible -- "Sure , you can use the property for anything you want!" These representations are often made without much thought or consideration of the consequences. Other times, Sellers or their agents knowingly make false representations for the purpose of inducing the Buyer to purchase the property. In both situations, Buyers frequently rely on these pre-sale representations to their own detriment.
I'm frequently asked to explain when the Seller liable for these types of misrepresentations about real estate, and when a Buyer be responsible for his own decision to rely on the Seller's representations.
The Answer to this question is not a simple one, and can differ significantly based upon the facts and circumstances surrounding the transaction and the property in question.
Under Texas caselaw, a very simplistic distinction and determination of liability is often tied to the following:
1. Whether the Seller knew facts that were unknown to the Buyer.
2. Whether the Buyer actually relied on the Seller's representations.
3. Whether the Buyer undertook an independent investigation (through inspection, examination, attorney review or even the purchase of a title policy) of facts that may have been covered by the Seller's representation.
The 3rd of these factors -- independent investigation -- is somewhat important. In the context of real estate sales in Texas when a seller makes an affirmative representation, the law imposes a duty upon the seller to know whether such a statement is true. First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 76 (Tex.1993). However, when a Buyer undertakes his own investigation -- regardless of the result --the buyer's decision to undertake such an investigation indicates that he or she is not relying on the seller's representations about the property.
Even in these instances, however, Sellers can be liable for intentionally fraudulent representations, or for facts that could not have been discovered by the Buyer through his own investigation.
Another avenue of potential recovery for a duped Buyer lies with the persons or entities who participated in the Buyer's investigation -- title examiners, attorneys, real estate agents and others who should have but did not discover restrictions on the property's use. Reliance on a title committment issued by a title insurance company and/or on an opinion by an attorney are sometimes easier to prove than reliance on a Seller's representations about the property.
If you are the Buyer or Seller of real estate, you should be careful to fully examine all facts surrounding the property, to conduct a reasonable and diligent investigation, and to limit your affirmative representations to the opposing party. Both Buyers and Sellers of real property are encouraged to involve a licensed Texas attorney experienced in real estate transactions and disputes.
There are all kinds of scenarios under which these types of representations are made. Some memorable situations I've encountered relate to use of residential property for commercial purposes, construction of certain facilities on the property, the right of the owner to maintain various animals (pit bulls and horses come to mind), and the existence or non-existence of restrictive covenants.
In some situations the Sellers are clearly misinformed or ignorant about whether the Buyer's proposed activities are permissible -- "Sure , you can use the property for anything you want!" These representations are often made without much thought or consideration of the consequences. Other times, Sellers or their agents knowingly make false representations for the purpose of inducing the Buyer to purchase the property. In both situations, Buyers frequently rely on these pre-sale representations to their own detriment.
I'm frequently asked to explain when the Seller liable for these types of misrepresentations about real estate, and when a Buyer be responsible for his own decision to rely on the Seller's representations.
The Answer to this question is not a simple one, and can differ significantly based upon the facts and circumstances surrounding the transaction and the property in question.
Under Texas caselaw, a very simplistic distinction and determination of liability is often tied to the following:
1. Whether the Seller knew facts that were unknown to the Buyer.
2. Whether the Buyer actually relied on the Seller's representations.
3. Whether the Buyer undertook an independent investigation (through inspection, examination, attorney review or even the purchase of a title policy) of facts that may have been covered by the Seller's representation.
The 3rd of these factors -- independent investigation -- is somewhat important. In the context of real estate sales in Texas when a seller makes an affirmative representation, the law imposes a duty upon the seller to know whether such a statement is true. First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 76 (Tex.1993). However, when a Buyer undertakes his own investigation -- regardless of the result --the buyer's decision to undertake such an investigation indicates that he or she is not relying on the seller's representations about the property.
Even in these instances, however, Sellers can be liable for intentionally fraudulent representations, or for facts that could not have been discovered by the Buyer through his own investigation.
Another avenue of potential recovery for a duped Buyer lies with the persons or entities who participated in the Buyer's investigation -- title examiners, attorneys, real estate agents and others who should have but did not discover restrictions on the property's use. Reliance on a title committment issued by a title insurance company and/or on an opinion by an attorney are sometimes easier to prove than reliance on a Seller's representations about the property.
If you are the Buyer or Seller of real estate, you should be careful to fully examine all facts surrounding the property, to conduct a reasonable and diligent investigation, and to limit your affirmative representations to the opposing party. Both Buyers and Sellers of real property are encouraged to involve a licensed Texas attorney experienced in real estate transactions and disputes.
Thứ Ba, 5 tháng 1, 2010
Pending Home Sales Post Record Plunge in November
Pending home sales unexpectedly plunged in November, according to a report issued Tuesday by the National Association of Realtors, posting their largest drop on record after several months of positive gains for a closely-watched indicator of housing market activity.
According to the industry group, November pending home sales activity dropped by 16% to a reading of 96.0, compared with the previous month’s reading of 114.3. The drop was much larger than expected by Wall Street, which was looking for a dip of 2% for the indicator for November.
It was the largest drop, point-wise, since the industry group started the index in 2001, dragging the indicator to its lowest level since June.
NAR officials said the drop was related to a decrease in sales activity as the original Dec. 1 deadline for the first-time home-buyers tax credit approached. Pending home sales are contracts signed, meaning it could take several months for a home buyer to finance and finish the transaction. A November home buyer may have been too late to qualify for the original deadline.
The U.S. government extended in November the $8,000 tax credit to a new deadline of April 30, in response to industry and consumer pressure. Housing market sales have risen 15.5% from a year ago, which many believe is primarily related to the tax credit.
Lawrence Yun, NAR’s chief economist, said activity was expected to slow in the winter but he expects it to pick up again as the new April deadline approaches.
“The fact that pending home sales are comfortably above year-ago levels shows the market has gained sufficient momentum on its own,” Yun said in a statement. “We expect another surge in the spring as more home buyers take advantage of affordable housing conditions before the tax credit expires.”
Regionally, the pending home sales plunged 25.7% in the Northeast, but remain up 14.7% from the same period a year ago. In the Midwest, sales dropped 25.7% but remain higher by 9.2% from 2009, while sales in the South dropped 15% and remain up 14.7% from a year ago. Sales in the closely watched Western region of the country declined slightly, by 2.7%, and remain higher by 21.4% from 2008.
By Ken Sweet
FOXBusiness
According to the industry group, November pending home sales activity dropped by 16% to a reading of 96.0, compared with the previous month’s reading of 114.3. The drop was much larger than expected by Wall Street, which was looking for a dip of 2% for the indicator for November.
It was the largest drop, point-wise, since the industry group started the index in 2001, dragging the indicator to its lowest level since June.
NAR officials said the drop was related to a decrease in sales activity as the original Dec. 1 deadline for the first-time home-buyers tax credit approached. Pending home sales are contracts signed, meaning it could take several months for a home buyer to finance and finish the transaction. A November home buyer may have been too late to qualify for the original deadline.
The U.S. government extended in November the $8,000 tax credit to a new deadline of April 30, in response to industry and consumer pressure. Housing market sales have risen 15.5% from a year ago, which many believe is primarily related to the tax credit.
Lawrence Yun, NAR’s chief economist, said activity was expected to slow in the winter but he expects it to pick up again as the new April deadline approaches.
“The fact that pending home sales are comfortably above year-ago levels shows the market has gained sufficient momentum on its own,” Yun said in a statement. “We expect another surge in the spring as more home buyers take advantage of affordable housing conditions before the tax credit expires.”
Regionally, the pending home sales plunged 25.7% in the Northeast, but remain up 14.7% from the same period a year ago. In the Midwest, sales dropped 25.7% but remain higher by 9.2% from 2009, while sales in the South dropped 15% and remain up 14.7% from a year ago. Sales in the closely watched Western region of the country declined slightly, by 2.7%, and remain higher by 21.4% from 2008.
By Ken Sweet
FOXBusiness
Thứ Hai, 4 tháng 1, 2010
Cop Watch: What's With All the Gunfights Down in Pleasant Grove?
Pleasant Grove is a small community located in southeast Dallas -- lotsa folk here just call it "the Grove." And that may be a really accurate moniker these days because it appears that some very UNpleasant things are happening there.
The Backstory: a Gunbattle Last Month ....
Just last month, the Dallas Morning News had a report on December 12, 2009, of a "gunbattle" involving a young man named Jae-Ron Andrews. According to media accounts, shortly after lunchtime on a Friday afternoon, Jae-Ron was meeting up with a drug dealer to buy some illegal substances (presumably in preparation for a fun weekend). Things turned sour, and 23 year old Jae-Ron pulled a pistol on the dealer. The dealer pulled his own weapon, and the two began exchanging gunfire. Jae-Ron was killed in the skirmish.
... Next, Fifteen Cops Vs. An Injured Nineteen Year Old
Then, right before the New Year, DMN reports on another gunbattle in the Grove -- less than three weeks after the first one. And this one is scary because it involves thirteen (13) Dallas cops and two (2) more police officers from Mesquite drawing guns and giving fire in an altercation with a single individual, a teenager from Dallas who was killed during this onslaught.
Nineteen (19) year old Dontell Mitch Terrell died on the night of December 29th at the Dallas County Medical Center of multiple gunshot wounds. His sixteen (16) year old cohort, also shot, did not sustain life-threatening injuries -- he was shot in a separate incident, by a Mesquite officer.
Dontell was shot when the 15 law enforcement officers "opened fire" (quoting DMN) on the teenager after he allegedly failed to drop his weapon. Reports aren't revealing how many times Dontell was hit, but the Dallas Morning News has seen fit to list the names of every single law enforcement officer that pulled his gun on Dontell Terrell.
Dontell was a troubled kid
Allegedly, Dontell and two pals had been robbing the local Papa John's pizza joint and the police caught up with the three on the road, after they'd left the scene driving a white Chevy. A high speed chase began, ending with Dontell jumping from the car and running -- getting hit in the process by a Mesquite police car. Injured, he ran into a nearby home where there was a standoff with police while he threatened suicide and told his mother over the phone that he wanted to die rather than return to jail.
Here's the question: did Dontell have to be shot down? by 15 different shooters?
Assuming that Dontell was suicidal and refusing to put down his weapon as a way to commit "suicide by cop," did that mean that 15 cops needed to fire upon the teenager? The listing of each cop involved in the shooting, together with their years of experience in law enforcment, suggests that this blog may not be the only place where the question arises: couldn't an injured 19 year old have been protected from his own suicidal wishes? Or is the Grove its own little version of the Wild West today?
The Backstory: a Gunbattle Last Month ....
Just last month, the Dallas Morning News had a report on December 12, 2009, of a "gunbattle" involving a young man named Jae-Ron Andrews. According to media accounts, shortly after lunchtime on a Friday afternoon, Jae-Ron was meeting up with a drug dealer to buy some illegal substances (presumably in preparation for a fun weekend). Things turned sour, and 23 year old Jae-Ron pulled a pistol on the dealer. The dealer pulled his own weapon, and the two began exchanging gunfire. Jae-Ron was killed in the skirmish.
... Next, Fifteen Cops Vs. An Injured Nineteen Year Old
Then, right before the New Year, DMN reports on another gunbattle in the Grove -- less than three weeks after the first one. And this one is scary because it involves thirteen (13) Dallas cops and two (2) more police officers from Mesquite drawing guns and giving fire in an altercation with a single individual, a teenager from Dallas who was killed during this onslaught.
Nineteen (19) year old Dontell Mitch Terrell died on the night of December 29th at the Dallas County Medical Center of multiple gunshot wounds. His sixteen (16) year old cohort, also shot, did not sustain life-threatening injuries -- he was shot in a separate incident, by a Mesquite officer.
Dontell was shot when the 15 law enforcement officers "opened fire" (quoting DMN) on the teenager after he allegedly failed to drop his weapon. Reports aren't revealing how many times Dontell was hit, but the Dallas Morning News has seen fit to list the names of every single law enforcement officer that pulled his gun on Dontell Terrell.
Dontell was a troubled kid
Allegedly, Dontell and two pals had been robbing the local Papa John's pizza joint and the police caught up with the three on the road, after they'd left the scene driving a white Chevy. A high speed chase began, ending with Dontell jumping from the car and running -- getting hit in the process by a Mesquite police car. Injured, he ran into a nearby home where there was a standoff with police while he threatened suicide and told his mother over the phone that he wanted to die rather than return to jail.
Here's the question: did Dontell have to be shot down? by 15 different shooters?
Assuming that Dontell was suicidal and refusing to put down his weapon as a way to commit "suicide by cop," did that mean that 15 cops needed to fire upon the teenager? The listing of each cop involved in the shooting, together with their years of experience in law enforcment, suggests that this blog may not be the only place where the question arises: couldn't an injured 19 year old have been protected from his own suicidal wishes? Or is the Grove its own little version of the Wild West today?
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