Sonoma County Lawyer Blog

In a previous blog post I wrote about the process of terminating a parent's Parental Rights.

To summarize, A proceeding under Family Code Section 7800 et seq. may be brought if the child has been left in any of following circumstances:

1) Without provision for identification by his or her parent or parents; or

2) By both parents or by his or her sole parent in the care and custody of another person without any provision for support or without communication from the parent or parents for six months; or

3) By one parent in the care and custody of the other parent without any provision for support or without communication from the absent parent for a period of one year.

A common defense to termination is that the parent whose rights are to be terminated has a sufficient bond with the child which would make termination not in the best interest of the child or children. However, now it appears that regular monitored visits are insufficient to establish a parent-child relationship.

Continue reading "Regular Monitored Visits Are Insufficient To Establish The Parent-Child Relationship Exception For Adoption" »

The National Association of Consumer Bankruptcy Attorneys (NACBA) prepared a report regarding the dischargeability of student loans in the bankruptcy court. I have summarized the report below, but click here to review the entire report .

According to the NACBA, Americans now owe more on student loans than on credit cards. The amount of student borrowing crossed the $100 billion threshold for the first time in 2010 and total outstanding loans and exceeded $1 trillion for the first time last year. The reason: Students and workers seeking retraining are borrowing extraordinary amounts of money through federal and private loan programs to help cover the rising cost of college and training. In many cases, parents responsible for the student loans are in or near retirement years and facing repayment demands.

How big is the danger to the U.S. economy? "Evidence is mounting that student loans could be the next trouble spot for lenders," said Dr. Andrew Jennings, chief analytics officer at FICO and head of FICO Labs.

With rising debt comes increased risk, both to borrowers and to the economy in general. Even in the best of economic times when jobs are plentiful, young people with considerable debt burdens end up delaying life-cycle events such as buying a car, purchasing a home, getting married and having children. Piling up student loans in middle age is even more troublesome. Aside from the simple truth that there is less time to earn back the money, it also means facing retirement years still deeply in debt. And, parents who take out loans for children or co-sign loans will find those loans more difficult to pay as they stop working and their incomes decline.

Continue reading "The Student Loan Debt Bomb: America's Next Mortgage Economic Crisis" »

According to the National Association of Consumer Bankruptcy Attorneys (NACBA), the proposed principal paydown plan has hit a road block.

According to an e-mail update issued by the NACBA, NACBA's Principal Paydown Plan to help underwater homeowners in chapter 13 bankruptcy avoid foreclosure, has been endorsed by a substantial number of Members of Congress who in turn have pushed for action by the Federal Housing Finance Agency (FHFA) to implement the plan. In a series of private meetings and in letters to FHFA, Senators and Members of Congress have asked the FHFA to use its authority over Fannie Mae and Freddie Mac to require them to agree to the Principal Paydown Plan when proposed by a homeowner trying to save a home in chapter 13 bankruptcy.

Despite FHFA Director DeMarco's initial positive comments about the Principal Paydown Plan, which he said struck him as "being responsible," and a "credible way to address the crisis while recognizing various interests mortgaged properties," he recently wrote to Congress informing them that the agency would not be implementing the Principal Paydown Plan. FHFA concluded that few GSE borrowers have filed for chapter 13 bankruptcy and are underwater and therefore the proposal would not be all that helpful. They did, however, commit to doing what they can to help eligible borrowers in bankruptcy get the HAMP modifications they qualify for.

While the FHFA response is disappointing and inadequate, and we believe wrong, we are gratified that the many Members of Congress who have pushed for this solution continue to be engaged and are looking for ways to get the Principal Paydown Plan implemented despite the FHFA's position. These Members of Congress recognize, as so many of us do, that the foreclosure crisis is not going away anytime soon and so long as it continues, the nation will not enjoy the kind of recovery that is needed to stabilize the economy and get people back to work.

In the United States there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Puerto Rico allows property to be owned as community property also as do several Indian jurisdictions. Alaska is an opt-in community property state; property is separate property unless both parties agree to make it community property through a community property agreement or a community property trust.

The state of California considers any property acquired during a valid marriage by a husband or wife community property. Sections 760 and 771 of the California Family Code outline the state law pertaining to community property.

IRMO Walker, Ralph and Elena married in 1993. They separated in January 2008, and, in March 2008, Elena filed a petition for legal separation. Ralph was 47 years old at the time of their separation. He had worked as a public school teacher until January 2008, when he left his employment due to a disability. Ralph has been a member of CalSTRS since 1986, and he had just under 20 years of CalSTRS service credit when he left his employment.

Ralph had applied for a CalSTRS disability allowance after the couple separated, and CalSTRS granted his application retroactive to December 2008.

In August 2009, the court entered a "STIPULATION AND ORDER" under which the parties agreed to "enter into a Domestic Relations Order (DRO) regarding Respondent's right to receive disability benefits from CalSTRS.

After several legal challenges to the characterization of this asset, the court found that his CalSTRS disability benefits were not his separate property.

Continue reading "Post-Separation Disability Benefits Are Not Community Property" »

In US vs. Jones, the US Supreme Court was asked to decide whether the attachment of a Global Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

In a unanimous decision, the Supreme Court ruled that police cannot attach a GPS device to a criminal suspect's car to track their movements without first obtaining a search warrant.

While the Government contended that no "search" occurred, the Court thought differently. It is beyond dispute that a vehicle is an "effect" as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977). Based on this, the Court reasoned that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a "search."

Associate Justice Antonin Scalia said that the government's installation of a GPS device, and its use to monitor a vehicle's movements, constitutes a search, meaning that a warrant is required.

"By attaching the device to the Jeep" that Jones was using, "officers encroached on a protected area," Scalia wrote.

This is probably not the end of these types of cases making their way to the US Supreme Court because the court did not rule on whether the exact search was reasonable, which means even if the Fourth Amendment applies in cases like this, it's possible that the use of GPS devices may be considered acceptable in some circumstances.

Continue reading "US Supreme Court Holds That Law Enforcement Need A Warrant Before GPS Tracking Can Be Used" »

The debtor and West Vernon Energy Corporation had been engaged in lengthy litigation. Prior to the debtor's bankruptcy filing, a jury awarded West Vernon a verdict of $178,207. The debtor's bankruptcy included a debt owed to "West Vernon Petroleum" at an address different than West Vernon's address.

Although it appeared that West Vernon's never received notice of the bankruptcy filing from the Clerk of the Bankruptcy Court, the company received actual notice of the filing from the debtor's attorney. This notice was received two months prior to the claims bar date. Despite this opportunity to file a claim before the deadline, West Vernon filed its claim several weeks after the deadline.

West Vernon then asked the court to have its claim deemed timely filed. The court denied the request, and disallowed the claim, stating that since Section 502(b)(9) was added to the Code, bankruptcy courts have almost uniformly ruled that proofs of claim that are untimely filed in a Chapter 13 case may not be deemed timely filed.
As such, the bankruptcy court denied an improperly scheduled creditor's request that its tardily filed claim be deemed timely filed.

If you are a creditor in a pending bankruptcy case there are very quick critical deadlines that must be followed to preserve your rights. The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients, debtors and creditors, with their bankruptcy needs throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.

Bankruptcy courts rely on the "Brunner Test" for determining whether a student loan is dischargeable in bankruptcy based on a claim of undue hardship. This test is based on a U.S. Court of Appeals decision, Brunner v. New York State Higher Education Services Corp, and requires a debtor to prove:

(1) That the debtor cannot maintain, based on current income and expenses, a minimal standard of living for the debtor and dependents if forced to pay off student loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.

Four years after a debtor received her Chapter 7 discharge, she moved to reopen her bankruptcy case for the purposes of seeking an undue hardship discharge of her student loans. The case was reopen and the debtor filed an adversary complaint seeking the discharge of $19,726 in student loans.

Continue reading "Debtor Discharges Student Loans After 25 Years" »

It is well established that the holder of a first mortgage can't modify the terms of the loan if the loan is on his primary residence. However, what if the mortgage is on a rental property which is not the debtor's primary residence, can the terms of the first mortgage be modified? Yes in a Chapter 13 bankruptcy, subject to strict rules.

You can use a Chapter 13 bankruptcy to cramdown the mortgages on your investment properties. Investment property generally means any property other than your principal place of residence such as rental or commercial properties. You cannot use a mortgage cramdown to reduce the balance of your mortgages on your principal residence. However, you may still be able to get rid of your second mortgage on your principal residence in Chapter 13 bankruptcy through a process called lien stripping.

I have advised debtors that, under certain very specific circumstances, to move out of the home, rent it out on a month to month basis, rent an apartment, file a chapter 13 bankruptcy, cramdown their first mortgage, and then move back into their home. (Since the debtor rented their home on a month to month basis, they can terminate the tenancy at any time). Is this bad faith? That can only be answered on a case by case basis.

This brings up the very next question, at what point in time is it determined if the subject piece of property is the debtor's primary residence or rental property not his primary residence?

Continue reading "Mortgage Cramdown In A Chapter 13 Bankruptcy?" »

State statutes governing dependency proceedings are set out generally in Welf. & Inst. Code § 300 et seq. Dependency proceedings are special proceedings traditionally viewed as being governed by their own set of rules and statutes.

Because of the parents' work schedules, they left their minor child at the home of the paternal grandfather and the paternal great aunt. On a Wednesday in March 2011, the grandfather, who had been home alone with eight-month-old took her to a hospital. When she arrived, she was limp, pale, and nonresponsive. CPR was administered and she was transferred to Rady Children's Hospital, where testing "showed presence of a right subdural hematoma which was mixed density, acute or acute and chronic," and bilateral retinol hemorrhages "most consistent with subacute."

The parents told the attending physician that the child was healthy when they left her with the grandfather the previous day and they were unaware of any traumatic event. The parents reported that the grandfather told them he walked away from the child when she was lying down drinking a bottle. He heard her begin to choke and returned to her, finding her limp.

The San Diego County Health and Human Services Agency took the child into protective custody and filed a petition on her behalf under section 300, subdivision (b). The petition alleges that the child's injuries "would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of the parents of the child and there is substantial risk that the child will suffer serious physical harm or illness." (See § 355.1, subd. (a).)

Continue reading "Substantial Evidence Showed That Removal From Parents' Home Was Reasonable" »

Generally in court, documentary evidence such as records, letters, bills, contracts, and similar writings have to be authenticated or identified before being admitted in evidence as genuine.

In today's society, information obtained on social networking websites is being used in court as evidence against the party who made the post.

This seemed to have begged the question, how do you properly authenticate a social networking post? That question has been answered in People vs. Valdez.

In Valdez, supra, a jury convicted Vincent Julian Valdez, Jr., of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism (Pen. Code, § 186.22, subd. (a)), arising from two separate drive-by shootings. Valdez asserts challenges to the sufficiency of the evidence to support his conviction of street terrorism by arguing that the trial court erroneously admitted pages from his MySpace social networking site that included his gang moniker ("Yums"), a photograph of him making a gang hand signal, and written notations including "T.L.F.," "YUM $ YUM," "T.L.F.'s '63 Impala," "T.L.F., The Most Wanted Krew by the Cops and Ladiez," and "Yums. You Don't Wanna F wit[h] this Guy."

Continue reading "Contents of MySpace Page Are Sufficient To Establish Its Authenticity" »

On September 26,2009,plaintiff Cynthia Dempsey's pickup truck was struck by a CHP patrol vehicle on Highway 12 westbound,just east of Santa Rosa Avenue in Santa Rosa,causing the pickup to flip onto a guardrail,bounce off and skid along Highway 12 on its roof for approximately 100 feet.

The officer had received a call that a group of approximately 25-30 people,some dressed in baggy clothing,had gathered at the Santa Rosa DMV parking lot. He entered his vehicle and began a code three emergency response. Between Farmers Lane and the Maple Avenue on-ramp,the officer reached speeds exceeding 100 miles per hour.

A Sonoma County jury awarded plaintiff more than $1.2 million against the State of California for the injuries she suffered in a collision with a CHP officer. The State denied liability, contending that the officer was properly responding to an emergency and that a motorcycle driver was the primary cause of the accident. The jury found the officer to be negligent and apportioned 99.5% of the liability to the State.

As it turned out, the call ended up being a false alarm. However, do you think the result should have been different if the call ended up being valid and a gang fight was actually happening?

For more information, please click here

The Law Office of James V. Sansone was founded with the goal of providing individuals and local business owners with a meaningful and cost-efficient alternative to large law firms. We are pleased to offer experienced legal representation, while still offering reasonable rates that are favorable to what clients might expect in a large law firm setting.

In the case of Cragen v. Maxwell the plaintiff (Cragen) believed he contracted a sexually transmitted disease from debtor (Maxwell) and threatened to sue her. To avoid suit, Maxwell agreed to pay Cragen $35,000. She signed a promissory note to which the plaintiff agreed to release her from any claims sustained by or resulting from contracting a sexually transmitted disease from Maxwell.

11 USC 523(a)(6) provides that debts for willful and malicious injury by the debtor to another can't be discharged in bankruptcy.

Pursuant to Section 523(a)(6), after Maxwell filed for Chapter 7 protection, Cragen filed a complaint alleging his claim was nondischargeable.

He alleged that Maxwell willfully and intentionally exposed him to human papilloma virus by engaging in unprotected sexual intercourse with him without informing him of her diagnosis. Maxwell denied having a past diagnosis and argued that her actions did not rise to the level of willful and maliciousness.

Continue reading "Unprotected Sex Is Not Willful and Malicious Act For Purposes of Non-Dischargeability" »

Do retailers, such as Walmart, owe their customers a duty of care? Yes they do. Land owners owe a duty of care to all invitees. The class of persons designated as invitees includes those who have come upon the land at the express or implied invitation of a possessor for the purpose of transacting some business within the scope of the invitation.

The duty of exercising ordinary care for the safety of business visitors may require one who invites the public to his/her premises to purchase goods to take measures different from those required of one inviting others to his/her private residence.

A land owner is required to maintain its property in a reasonably safe condition and has a duty to exercise due care to protect invitees from conditions that can result in injury. Whereas, a land owner has no duty to protect invitees from open and obvious dangers. However, even if a danger is open and obvious, a landowner owner may still owe a duty to protect an invitee if the risk of harm remains unreasonable.

A possessor owes an additional duty towards an invitee to exercise reasonable care to make the land safe for the reception of his/her invitee, or ascertain the actual condition of the land so that by warning the invitee, the possessor may give the invitee an opportunity to decide intelligently whether or not to accept the invitation or permission.

This Black Friday saw a lot of mob like mentality. Some of the issues were created by people's greed, while others were created by retailers' own negligence. Nevertheless, people were injured because of this greed or negligence. Are the stores at fault?

The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients with their civil litigation needs throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.

As posted and written by CBS 5, A few weeks ago, I reposted a post by CBS 5 who reported on a woman who avoided paying rent for years. She had numerous court judgments against her, and owes more than $100,000 to landlords, some in the Bay Area.

Recently, she turned up in Oregon, but her stay there didn't last long.

When CBS 5 first caught up with Gwen Smith, it was late October in the Sonoma County town of Forestville. She sped past our cameras as we tried to ask her about eight court judgments against her totaling $183,000, judgments in favor of landlords such as Connie Cook in Sebastopol.

"She started claiming that the apartment was uninhabitable. The water was not healthy, there was a gas leak," said Cook. A judge ruled Smith's conduct of not paying rent and filing numerous legal actions "malicious" and a "tactical delay" and awarded cook approx. $49,000 in damages.

After leaving Cook's house, Smith moved to Oregon renting a room in Lance Hilt's house. Within days, Hilt said he realized he had made a big mistake. "I got the roommate from hell," he said.

Hilt said she put a lock on her room, and started complaining about everything. "It's all about her, she's like a fulltime job," he said. He managed to evict her.

Then Smith moved into Pamela Joy's house and soon started "threatening" her, according to court documents. "I put a lock on the inside of my bedroom door because I was afraid to not lock it at night when I was asleep," said Joy.

Joy also took Smith to court. In an audio recording from the Jackson County Circuit Court, Smith was heard talking back to the judge. "She was arguing with the judge, it was to my mind really shocking," said Joy.

But one thing that didn't happen to landlords in Oregon, and was the financial ruin for some in California, involved Smith withholding rent.

In Oregon, if there's a landlord tenant dispute, tenants still have to pay rent into an escrow account held by the court. Whoever wins gets the money. I am of the opinion that CA should adopt a similar law. This would curb a lot of abuse.

The Law Offices of James V. Sansone is located in Santa Rosa, California and litigates numerous landlord tenant disputes including evictions, contract and lease disputes, evictions after foreclosure, and problem tenants, throughout Sonoma County, Mendocino County, and Lake County, including Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, and Kelseyville.

Click here to read the rest of the story.

What is the single most important skill you should look for in a property management firm? The ability to screen out high risk applicants and rent to the good ones. This is critical to avoid potential expensive litigation in the future.

You should always find a manager who knows how to screen prospective renters. The property management company should have a written policy that is given to prospective renters. Having a policy can prevent the company from illegally discriminating, even unintentional discrimination. Other questions to ask include (1) is the written policy adhered to?, (2) How are exceptions made?, and (3) Does the supervisor review every decision?

It is not recommended that you require the property management firm to contact you prior to accepting a new resident. This can lead to a fair housing compliant.

In order to locate good renters you should set up criteria well before your search. Some of the more popular requirements include:

Continue reading "Selecting a Property Manager, Screening Renters, Maintenance Concerns & Fees" »