12.11.10
Posted in Criminal Law, Family Law, Litigation at 13:41 by Administrator
Q. What remedies might the law potentially provide to victims of domestic violence?
A. Claims for the redress of domestic violence are, at their core, claims to redress intentional, wrongful conduct.
Acts of domestic violence often constitute violation of the criminal law. When police are asked to assist, an officer may, among other things, obtain an emergency protective (civil restraining) order (EPO) for the victim. EPOs are issued ex parte, that is, without affording due process – the right to a hearing – to the person against whom the order is issued. Accordingly, EPOs are valid only for a short period of time.
If unmarried, the victim can request a permanent restraining order by filing appropriate papers in the family law division of the local Superior Court.
If married, the victim may file for divorce and seek a permanent restraining order as part of the divorce action. Alternatively, if a restraining order, but not a divorce, is desired, the married victim may may request a restraining order using the same procedure as would an unmarried person.
In all cases, the victim may also file a separate lawsuit for civil damages against the alleged abuser, as acts of domestic violence typically constitute civil wrongs such as assault and battery.
The reason two or three separate lawsuits may be needed is because no single division of the Superior Court has the ability to order all relief which may be available. For example, the criminal division can enter a judgment of criminal conviction for the crimes of assault and battery, but may not award money damages (however, a criminal court can issue protective and restitution orders). Similarly, a civil court can award civil damages – damages which include, but are not limited to mere restitution – but may not find a defendant guilty of a criminal offense or dissolve a marriage (divorce).
The family law division may dissolve a marriage, issue protective orders, make child and spousal support orders, and make child custody and visitation orders, but it may not award money damages.
The recent appellate case Boblitt v. Boblitt, C061307 (Third Appellate District, Nov. 30, 2010) addressed the issue of similar, and sometimes overlapping, relief which is available in domestic violence cases in California civil and family law courts.
Steven Boblitt and Linda Boblitt separated after a long marriage. During the ensuing divorce action, Linda sought an award of spousal support (alimony). In ruling on Linda’s request for spousal support, the family court considered evidence of alleged domestic violence, one of many statutory factors courts must consider in such cases. Although Linda received an award of spousal support, the family court did not make any findings regarding Linda’s allegations of domestic violence.
Linda then brought a separate civil lawsuit against Steven, in which she again alleged Steven had committed domestic violence against her. Steven moved to dismiss the civil action, claiming that Linda’s allegations of domestic violence had been fully litigated in the divorce case.
The appellate court disagreed with Steven, noting that the primary right Linda sought to vindicate was different in each case, notwithstanding that allegations of domestic violence were common to both cases. The court said that Linda’s civil action sought to vindicate her right to be free from personal injury, while her marital action sought to vindicate her right to, among other things, spousal support. Because the primary right Linda sought to vindicate was different in each case, Linda was allowed to proceed with both cases.
Given the often complex procedural issues associated with litigating domestic violence claims, it is advisable that plaintiff and defendant each obtain their own attorney.
In restraining order and divorce cases, the court may order the person who committed domestic violence to pay the victim’s attorney fees. In civil lawsuits, the plaintiff may be able to pay attorney fees on a contingency basis, from proceeds ultimately received from the defendant.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
Permalink
12.04.10
Posted in Real Estate Law at 08:52 by Administrator
Q. I have been attempting to obtain the assistance of a professional to help me negotiate a mortgage loan modification with my lender, but no one seems willing to help me. Why am I having difficulty obtaining the assistance that I need?
A. Prior to October 2009, it was lawful for both attorneys and non-attorneys to offer loan modification services to homeowners such as yourself. In this pre-October 2009 unregulated environment, some service providers committed fraud when working with homeowners who were seeking to modify their mortgage loans.
California responded to these abuses by passing a law which became effective during October 2009, and which states that only attorneys and licensed real estate brokers may offer loan modification services and that fees for such services may not be received by attorneys or brokers until they have “fully performed each and every service [they] contracted to perform.”
The actual and intended effect of the California law was to make it illegal for anyone other than an attorney or real estate broker to offer loan modification services. However, as is typical for California, it legislates a “right” with one hand, while simultaneously regulating that same “right” out of existence with the other hand. So it was with loan modifications: it made illegal the offering of loan modification services, while carving out an exception for lawyers and real estate brokers.
Then, with the same stroke of its legislative pen, California regulated out of existence this newly-created “right” for lawyers and real estate brokers to offer loan modification services by prohibiting the collection or receipt of advance fees for loan modification services. Whether it was intended or merely an unintended consequence is unclear, but the fact remains that the overwhelming majority of attorneys and real estate brokers are unwilling to offer loan modification services unless they can collect retainers or advance fees.
As goes California, so goes the nation. The Federal Trade Commission (FTC) recently issued its Mortgage Assistance Relief Services (MARS) Rule, which applies nationwide and states that providers of mortgage loan modification services may not collect fees “until homeowners have a written offer from their lender or servicer that [the homeowner] decide[s] is acceptable.”
The FTC’s MARS Rule will not have much affect in California. Although the MARS Rule contains an exception for attorneys if allowed by state law, California law expressly prohibits the collection of advance fees.
Thus, only attorneys in states where state law allows an attorney to collect advance fees for loan modification services are likely to continue accepting loan modification cases.
Neither California nor the federal government have explained why existing laws – both civil and criminal – which currently make fraud illegal are not sufficient to protect homeowners who seek loan modification services, or why increased penalties would not remedy any perceived deficiency in existing law.
So, rather than protect homeowners from unscrupulous service providers, California has prohibited all but attorneys and real estate brokers from providing loan modification services, and both California the federal government have prohibited the collection of fees prior to the completion of the loan modification process. Given this level of government control, it is not surprising that you are having difficulty finding a professional who is willing to help you with your loan modification.
Although it may be all but impossible to find an attorney who is still accepting loan modification cases, there still may be legal strategies an attorney can help you employ which might benefit you. As always, you should contact your attorney as soon as you become aware of a potential legal problem.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
Permalink
11.23.10
Posted in Constitutional and Civil Rights Law at 18:00 by Administrator
Q. Most Americans probably have heard the story of how the Pilgrims, landing in Massachusetts on the Mayflower in 1621, celebrated the first Thanksgiving with the Indians. But how, and when, did Thanksgiving become a federal holiday?
A. Many of us, especially if we attended American public grade school, have heard the story of how the Pilgrims, landing in Massachusetts on the Mayflower in 1621, were ill equipped to survive the harsh winters of the New World. It is also likely we were told how the Pilgrims met an Indian named Squanto, who befriended and taught them how to survive in their new wilderness home, and who acted as an interpreter.
Less well-known is that Squanto accepted the Pilgrims’ Christian faith, and that the purpose of the first Thanksgiving Feast – more than 150 years before ratification of the U.S. Constitution – was to give thanks to God. See, Ashbel Steele, Chief of the Pilgrims: Or the Life and Time of William Brewster (Philadelphia: J.B. Lippincott & Co, 1857), pp. 269-270.
Thanksgiving did not become a federally recognized holiday until 1863, when President Abraham Lincoln declared a national day of Thanksgiving. However, George Washington, in 1789, was the first American president to proclaim a national day of Thanksgiving.
“On the day after the House of Representatives voted to adopt the form of the First Amendment Religion Clauses which was ultimately proposed and ratified, Representative Elias Boudinot proposed a resolution asking President George Washington to issue a Thanksgiving Day Proclamation. Boudinot said he ‘could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them.’” Wallace v. Jaffree, 472 U.S. 38, 100-101 (1985), citing 1 Annals of Cong. 914 (1789), Justice Rehnquist dissenting. “Boudinot’s resolution was carried in the affirmative on September 25, 1789.” Wallace v. Jaffree, 472 U.S. at 101.
“Within two weeks of this action by the House, George Washington responded to the Joint Resolution which by now had been changed to include the language that the President ‘recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.’ 1 J. Richardson, Messages and Papers of the Presidents, 1789-1897, p. 64 (1897).
Joseph Story, a Member of the [United States Supreme] Court from 1811 to 1845, and during much of that time a professor at the Harvard Law School, published by far the most comprehensive treatise on the United States Constitution that had then appeared. Volume 2 of Story’s Commentaries on the Constitution of the United States 630-632 (5th ed. 1891) discussed the meaning of the Establishment Clause of the First Amendment this way:
Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration [First Amendment], the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
* * *
The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . . (Footnotes omitted.)
In 1947, in Everson v. Board of Education, the United States Supreme Court summarized the Establishment Clause, stating:
In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’ Reynolds v. United States, [98 U.S. 145, 164, 25 L.Ed. 244 (1879) ].
This language from Reynolds came from a case involving the Free Exercise Clause of the First Amendment, rather than the Establishment Clause, and quoted from Thomas Jefferson’s letter to the Danbury Baptist Association. “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861).
Thomas Jefferson was in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress.
In 1985, the Supreme Court, speaking of the Founder’s understanding, said “the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations. Indeed, the first American dictionary defined the word ‘establishment’ as ‘the act of establishing, founding, ratifying or ordaining,’ such as in ‘[t]he episcopal form of religion, so called, in England.’ 1 N. Webster, American Dictionary of the English Language (1st ed. 1828). The Establishment Clause did not require government neutrality between religion and irreligion, nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There simply is no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in Everson.” Wallace v. Jaffree, 472 U.S. at 104-106 (internal citations omitted).
Happy Thanksgiving!
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
Permalink
11.19.10
Posted in Litigation, Real Estate Law at 20:00 by Administrator
Q. I have seen conflicting news reports on how courts are handling residential home foreclosure cases in which the owner/borrower, in defending against foreclosure, has asked the court to require their lender to show the promissory note as a condition of being allowed to proceed with a foreclosure action. Why does there seem to be a lack of consistency in reports on this issue?
A. Promissory notes, such as notes used to finance real estate, are contracts. In exchange for lending money, borrowers promise to repay the borrowed money, with interest. So-called “show-the-note” litigation stems from the very simple idea that when a party to a contract sues to enforce the contract, the party bringing the lawsuit must prove to the court that a contract, in fact, exists and that the party being sued is in breach of that contract.
However, in California, foreclosure actions are not, technically, considered to be actions for breach of contract, even though breach of a promise to repay money which is secured by real estate may, itself, constitute breach of contract.
California has adopted a comprehensive statutory scheme for the regulation of foreclosure actions including, among other things, the “one form of action” rule and statutes relating to deficiency judgments, all of which restrict the legal options which are available in California to mortgage lenders who seek to enforce their mortgage contract rights.
Thus, California state courts, and federal district courts located in California when applying California law, have consistently held that California law does not require a foreclosing lender to “show-the-note” before proceeding with a foreclosure. Rather, such lenders can demonstrate a right to foreclose with other – and often more readily available – documents.
Some bankruptcy courts in California and elsewhere, however, have taken a different approach. In the case of In re Vargas, 396 B.R. 511 (C.D. CA, filed Oct. 21, 2008), bankruptcy judge Samuel L. Bufford held that Mortgage Electronic Registration System, Inc. (MERS) could not be released from bankruptcy’s automatic stay of all collection activity in order for it to foreclose on a home because the company had provided “no evidence as to who owns the note, or of any authorization to act on behalf of the present owner.” Reportedly, more than a dozen courts, including the Supreme Courts of Guam and Kansas, have cited Vargas favorably.
One explanation for the different treatment “show-the-note” cases have received in California state courts and federal district courts located in California, on the one hand, and, bankruptcy courts in California and elsewhere, on the other, is simply that federal bankruptcy law sets a higher legal standard than does California law when it comes to what procedures a lender must follow when foreclosing on a secured note.
Because a lender’s ability to foreclose may turn on upon which court (state/federal district or bankruptcy) or which law (state or bankruptcy) applies to a particular case, it is important to obtain legal representation prior to challenging a foreclosure action.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
Permalink
11.13.10
Posted in Litigation, Real Estate Law at 10:27 by Administrator
Q. I am a California homeowner who is facing foreclosure. I would like to try to obtain a loan modification so I can save my home. Are there any California state laws which might help me? What are my options if my lender violates California foreclosure law?
A. The California Foreclosure Prevention Act (FPA), which was enacted in February 2009, provides extra time for borrowers facing foreclosure to work out loan restructurings. In addition to the usual 90-day period which is required to complete a foreclosure, the FPA requires lenders delay foreclosures an additional 90 days and pursue alternative courses of action during that time.
Lenders, however, may obtain an exemption from the additional 90-day period by demonstrating to the commissioner of a state licensing agency that the lender has in place a foreclosure prevention program designed to keep owners in their homes, when possible.
It has been said that without a remedy, there is no right. So let us look at how the FPA can be enforced.
Manatu and Lucy Vuki lost their Buena Park, California home to foreclosure. When HSBC Bank, the Viki’s former lender and buyer of the Vuki’s property at the foreclosure sale, sought to evict the Vukis, the Vukis responded by suing HSBC Bank for having allegedly violated the FPA. As part of their litigation strategy, the Vukis petitioned the California Court of Appeal for a writ which, if granted, would have stopped or delayed the eviction.
The Court of Appeal found that enforcement of the FPA’s provisions is, by statute, committed to the commissioner of the relevant state licensing authority. The court noted that the FPA’s statutory language provides that: “[a]ny person who violates any provision of [the FPA] shall be deemed to have violated his or her license law as it relates to these provisions.” Because violation of the FPA constitutes a violation of professional licensing law, the court held that the FPA “makes enforcement a matter of losing a license.” Vuki v. Superior Court (HSBC Bank USA), G043544, Fourth Appellate District, Division Three (October 29, 2010).
In other words, homeowners/borrowers may not sue their lenders for violating the FPA, because the FPA is enforceable only by the state, through administrative actions taken against professional licenses.
Although there exists no private right of action for enforcement of the FPA, other legal options may be available to homeowners/borrowers who seek to prevent foreclosure. As with any legal matter, an attorney can be most effective if retained early in a case, rather than later.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
Permalink
11.11.10
Posted in Bankruptcy, Business Law, Constitutional and Civil Rights Law, Criminal Law, Family Law, Litigation, Real Estate Law, Trusts and Estates at 12:24 by Administrator
For one low, annual fee, the LAW Plan will provide you with the following benefits:
Priority telephone access to a lawyer
Four, 15-minute telephone consultations in the areas of:
Bankruptcy
Business Law
Constitutional & Civil Rights Law
Criminal Law/Defense
Family Law
Real Estate Law
Trust and Estates
Review of basic legal documents during telephone consultations
10 percent discount on legal fees for matters not covered by the LAW Plan
For more information and to subscribe, please visit:
http://earlelaw.com/lawplan.html
Permalink
11.06.10
Posted in Bankruptcy, Real Estate Law at 10:09 by Administrator
Q. I am considering bankruptcy because I have a large amount of credit card debt. I also own a home and am currently working with my mortgage lender to modify the mortgage. How might a mortgage loan modification affect my bankruptcy filing?
A. Generally speaking, your lawyer should attempt to handle your bankruptcy case in a manner which will result in you being relieved of the greatest possible amount of debt. For consumers, this typically is done through the filing of either a Chapter 7 or Chapter 13 bankruptcy petition. The term “Chapter” as used in discussions of bankruptcy, relates to the area or “chapter” of the Bankruptcy Code which provides the legal authority for specific types of bankruptcy relief.
The difference between Chapter 7 proceedings and Chapter 13 proceedings is, in a nutshell, that Chapter 7 proceedings are usually completed within a few short months, with most, if not all, debt being completely discharged. Chapter 13 proceedings, on the other hand, may take three to five years to complete. In Chapter 13 proceedings, the debtor makes reduced monthly payments while the bankruptcy case is pending, with some portion of the total debt ultimately being discharged.
Chapter 7 proceedings are appropriate for debtors who possess few assets and have low income, relative to their debts. Debtors who own real property when seeking to file for bankruptcy generally must proceed under Chapter 13.
Several facts which might affect your bankruptcy case can be inferred from the statement that you are attempting to obtain a mortgage loan modification. First, you own real property, or at least an interest in real property. Second, the current fair market value of your real property might now be less than what is owed on the loan(s) which is secured by that property. Third, you have income.
In this situation, there are at least two questions which should be answered before you proceed with any bankruptcy filing. First, whether your case would qualify for Chapter 7 relief if you did not own a home. Answering this question is a very fact-specific endeavor which almost always will require the assistance of a lawyer. Second, whether it makes economic sense to modify the loan, that is, whether it will be economically beneficial for you to continuing owning the home if the lender(s) agrees to modify the loan. More information on “When Should You ‘Just Walk Away’ (From that House)?” can be obtained free of charge at: http://earlelaw.com/Newsletters-2009/EarleLaw-Newsletter-2009-42.pdf.
Although it is possible to convert a Chapter 13 bankruptcy filing to a Chapter 7 case, doing so will involve additional work and, if you are represented by an attorney, additional attorney fees. Thus, your question was a good first step in the process of preparing to file for bankruptcy.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
Permalink
10.30.10
Posted in Litigation, Real Estate Law at 08:08 by Administrator
Q. “Short sales” of residential properties – transactions where the amount a buyer pays for a property is less than the amount the seller owes on loan(s) secured by the property – are becoming increasing common. Do real estate brokers have a legal obligation to disclose to buyers that a transaction is a short sale?
A. Before answering your question, we should identify exactly whom the real estate broker represents. In cases where only one real estate broker is involved, there are three possibilities: the broker represents (1) only the seller, (2) only the buyer; or (3) both buyer and seller.
In the second and third scenarios – where a broker represents only the buyer, or both buyer and seller – the broker, as an agent for the buyer, has a well-established duty to disclose to the buyer any material fact concerning the transaction which the broker knows or reasonably should know. Any competent broker should easily be able to discover encumbrances – loans – which have been recorded against a property and, thus, are in the public record, and must disclose this information to the broker’s principal, the buyer.
But what about the case where a real estate broker represents only the seller? Must a broker in this situation disclose to the buyer facts which are in the public record? Stated differently, does a real estate broker who represents only the seller have a legal duty to perform due diligence for a buyer? If one were to examine well-settled principles relating to the law of agency relationships the answer should be: “No.”
However, that was not the result in Holmes v. Summer, G041906 (Cal.App.4th, filed October 6, 2010), where real estate broker Sieglinde Summer (Re/Max) represented the seller of a Huntington Beach residential property. The buyer, Holmes, was self-represented. The subject property was listed on a Multiple Listing Service for an asking price of $749,000, with Summer to receive a 3 percent sales commission.
Holmes offered to purchase the property for $700,000. The seller counter-offered at $749,000, and Holmes accepted. Loans encumbering the property totaled $1,141,000. The court’s opinion further tells us only that the purchase contract provided for a 30-day escrow and that “the property could not be transferred to [Holmes] free and clear of all monetary liens and encumbrances. . . .”
Holmes sued Summer, alleging various causes of action, all of which were predicated on the assumption that Summer – the seller’s broker – had a duty to disclose to Holmes – the self-represented buyer – that the total of all encumbrances exceeded the contract price for the property. A California state appeal court agreed with Holmes and reversed the trial court, which had dismissed the case after finding Summer owed no legal duty to Holmes.
When evaluating Holmes v. Summer, it is important to note this was not a case which involved false statements or affirmative concealment of facts. This simply was a case of non-disclosure where the self-represented buyer, who reasonably should have known the subject property was encumbered by loans, failed even to ask the seller whether the balance owed on the those loans exceeded the negotiated purchase price. If Holmes had bothered to ask, the seller, and the seller’s broker, Summers, would have been obligated to respond truthfully. So much for the doctrine of caveat emptor (let the buyer beware); the rule now appears to have completely changed to caveat venditor (let the seller beware).
And so much for the concept of a seller’s broker, at least in California. Even though the appeal court said that, “[b]y so holding, we do not convert the seller’s fiduciary into the buyer’s fiduciary,” any court decision which requires a seller’s broker to perform due diligence for a self-represented buyer does exactly that. So, with no foreseeable end in sight to governmental paternalism, and just in time for Halloween, we now must say to the California buyer’s broker, “R.I.P.”
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
Permalink
10.23.10
Posted in Family Law, Litigation, Real Estate Law at 09:09 by Administrator
Q. My spouse and I recently divorced. As part of the divorce settlement, I purchased my spouse’s marital (community) property interest in what formerly was our family residence. My former spouse and our children still reside at that residence, as my spouse and I agree it is best for the children to have as little disruption in their lives as possible. My former spouse signed a rental agreement, which requires monthly payments of rent. The amount of rent due each month is more than the amount of my monthly child support obligation. May my former spouse and I simply off-set the monthly payments of rent and child support each owes the other, rather than going through a ritual of exchanging payments each month?
A. Currently, there is no California statute or appellate decision which directly answers your question. However, California law considers the timely and proper payment of child support to be a priority over other financial obligations, including contractual debts such as rent.
If your former spouse ever decides to repudiate an agreement to off-set child support and rent payments, and sues you to collect “unpaid” child support, you will have the burden of proving you made all child support payments as ordered. Since California has no statute of limitations on actions to collect unpaid child support, you could be sued for “unpaid” child support long after the children are grown.
Don’t forget attorney fees. The “American rule” is that each party pays its own attorney fees. One exception to this rule allows a “prevailing party” to recover its attorney fees from the other party, in certain cases. Another exception exists for marital and child support cases, where orders for the payment of attorney fees is based solely on the financial circumstances of parties, without regard to the legal merits of the case.
Let us suppose that you and your former spouse off-set monthly payments of child support and rent that each owes the other. Let us further suppose that you were required to pay child support for 10 years; that 10 years after your child support obligation ended (20 years after the divorce), your former spouse fell on hard economic times and decided to sue you in an effort to collect “unpaid” child support; and that, unlike your spouse, you have done well financially since the divorce.
The worst outcome (for you) will be that the court will order you to pay 10 years’ worth of child support, plus simple interest on the total amount, at a rate of 10 percent per year. Additionally, because you have done well financially since the divorce, while your former spouse has not, the court likely will order to you pay some or all of your former spouse’s attorney fees.
Another possible outcome is that you will “win” your case at trial, with the court deciding that rent your former spouse owed you should be credited against your child support obligation. However, you may still be ordered to pay some or all of your former spouse’s attorney fees. Furthermore, since no statute or appellate court decision directly addresses this legal issue, your former spouse might ask an appellate court to review the trial court’s decision, and to order you to pay your former spouse’s attorney fees on appeal, too.
Thus, the potential difficulties which might arise many years from now as a result of an arrangement to off-set payments far outweighs the relatively minor inconvenience of exchanging actual payments every month.
On a final note, be sure to keep a written record – cancelled checks or their equivalent – of every child support payment you make. As your support obligation for each child ends, consider asking your lawyer to obtain a written court order declaring that you have satisfied your support obligation for that child. The existence of such an order will bar any future action against you for “unpaid” child support.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
Permalink
10.16.10
Posted in Litigation, Real Estate Law at 07:12 by Administrator
Q. I recently lost my home through foreclosure. Now, I have learned that the process used by some lenders when processing foreclosures may have violated the law. What should I do if my lender violated the foreclosure law?
A. With an estimated 2 million homes in foreclosure nationwide, there have been reports in 40 states of “robo signings” – signing of foreclosure documents, usually under penalty of perjury, by lenders or loan services who have not actually read those documents.
In response to these reports, several large mortgage lenders have suspended foreclosures on some or all loans in their portfolios. As of this writing, only Bank of America has extended its foreclosure moratorium to California, where the vast majority of foreclosures are conducted without a court order. Additionally, some members of Congress are calling for legislation that would place a temporary, nationwide moratorium on foreclosures until instances of robo-signings of foreclosure documents can be resolved.
Foreclosures in many states other than California are conducted through those state’s court systems. In California, most foreclosures are non-judicial in nature. However, even though most California foreclosures are accomplished through use of non-judicial procedures, lenders still must comply with California law when foreclosing on properties located in California.
The practice of robo-signing foreclosure documents raises concerns both in individual cases and in the larger, systemic sense.
Individual homeowners, of course, have a right to have any foreclosure proceeding which affects them conducted in accordance with all applicable laws. Furthermore, those who purchase previously foreclosed homes should be assured that the title to those homes which they receive is free from any defects caused by irregularities in the foreclosure process.
There is an old adage counseling that just because one has a right to do something, it does not necessarily follow that it would be wise to exercise that right. Applying this adage to the current foreclosure debacle, before filing a lawsuit which seeks to redress any irregularity in a particular foreclosure case, individuals should carefully scrutinize whether they actually were harmed by any irregularity in the procedure used by their lender when processing the foreclosure. In other words, before filing a lawsuit, borrowers should ask themselves whether, had there been no irregularity in the foreclosure process, the result would have been the same. If there would have been no difference in result, borrowers should think long and hard before paying a lawyer to file a lawsuit.
Persons who purchase properties which previously have been foreclosed upon face different challenges. Unlike a former homeowner, who can decide whether to file a lawsuit, those who purchase formerly foreclosed properties must protect themselves from all potential claims which might affect their title to, or interest in, those properties. Details on how to meet this challenge are still, largely, being worked out. In the meantime, it is likely that the process of purchasing foreclosed properties will be slowed.
Finally, courts routinely rely on documents signed under penalty of perjury when making orders which affect the rights of litigants, both in foreclosure and myriad other types of legal actions. Thus, to safeguard the integrity of the judicial system – and to maintain public confidence in and respect for judicial acts – it is imperative that courts enforce compliance with all procedural requirements. To maintain the integrity of the judicial system, courts typically rely on their contempt or other sanctions power to ensure that litigants follow the rules. Politicians, through various attorneys general, likely will be more than willing to “assist” the courts in this task by filing consumer protection lawsuits. So don’t be surprised if lenders who were involved in robo-signings ultimately are ordered to pay large fines as a result of this practice.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
Permalink
« Previous Page — « Previous entries « Previous Page · Next Page » Next entries » — Next Page »
