February 2011 Archives

Your Bankruptcy Discharge Can Be Denied If It Can Be Proven That A Debtor Intended To Defraud Creditors!

February 28, 2011, by Law Offices of James V. Sansone

Chapter-11-Bankruptcy-Fraud.jpgObtaining a discharge once you file bankruptcy is not a guarantee or a right. When a bankruptcy petition is filed with the court, a bankruptcy estate, which includes all of a debtor's legal and equitable interests in property in existence at the time of the bankruptcy filing, is formed. Upon the formation of this estate, all rights to the property belong to the estate and not the debtor. The 2nd Circuit Court of Appeals on February 4, 2011, ruled that a debtor was not entitled to a discharge because the debtor sold assets belonging to the bankruptcy estate with intent to defraud creditors.

Section 727(a)(2)(B) of the Bankruptcy Code provides, in pertinent part, that the court shall grant the debtor a discharge, unless . . . the debtor, with intent to hinder, delay, or defraud a creditor . . ., has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed . . . . property of the estate, after the date of the filing of the petition[.]

To prevail under Section 727, the creditor objecting to the discharge must demonstrate that (1) the debtor (2) transferred or concealed (3) property of the bankruptcy estate (4) with the intent to hinder, delay, or defraud the creditor (5) after the filing of the bankruptcy petition. These five elements must be established by a preponderance of the evidence.

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The Nine Steps Landlords Need To Know For A Sonoma County Eviction

February 25, 2011, by Law Offices of James V. Sansone

Landlord-Guide-Eviction-Process.jpg1) Upon the tenants nonpayment of rent, other breach of the renal agreement, discovery of the tenants illegal activity or activities that are a legally defined nuisance, the landlord must serve upon the tenant a 3, 30, 60, or 90 day notice.

2) If the 3, 30, 60, or 90 day notice is not complied with, the landlord must file a Complaint for Unlawful Detainer at the superior court for the county in which the property is located and pay the appropriate filing fee.

3) Once filed, the Complaint for Unlawful Detainer and Summons must be served upon the tenant. Anybody over the age of 18 not a party to the lawsuit may personally serve the tenant, although I believe it is a best practice to use a registered process server.

4) After the Complaint for Unlawful Detainer is served upon the tenant, a proof of service must be prepared by the person who served the complaint. Once properly prepared, the proof of service must be filed with the superior court.

5) Upon personal service of the tenant, the tenant has five days to respond. If the tenant does not file a responsive pleading within the five day period, the landlord may take the tenant's default and regain possession of the property by filing the following documents with the court:

i) Request for Entry of Default and Clerk's Judgment for Possession
ii) Judgment
iii) Writ of Possession

6) If the tenant files an Answer to Complaint for Unlawful Detainer, the landlord must set the case for trial by filing a Request to Set Case For Trial. The court will not automatically set the case for trial unless one of the parties files a request. The trial must be set within 21 days of the day the request is made if possession is in issue.

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Is There An Ownership Expense Associated With Your Car After Your Car Loan Has Been Paid Off?

February 23, 2011, by Law Offices of James V. Sansone

cars-lightning-mcqueen.jpgThe answers to this question, from logical prospective, seems obvious, YES. Expense associated with ownership of a vehicle does not disappear once a car loan is paid off, right? Well, the United States Supreme Court disagreed, at least when we a speaking in the world of a chapter 13 bankruptcy.

On January 11 of this year, the United States Supreme Court, in an 8-1 decision, ruled that in a chapter 13 bankruptcy a debtor was not entitled to the vehicle ownership expense deduction since the debtor did not make any loan or lease payments for the vehicle (see Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716 (U.S. 2011)).

Chapter 13 of the Bankruptcy Code enables an individual to obtain a discharge of his debts if he pays his creditors a portion of his monthly income in accordance with a court-approved plan. To determine how much income the bankruptcy debtor is capable of paying, Chapter 13 uses a statutory formula known as the "means test". The means test instructs the debtor to deduct specified expenses from his current monthly income. The result is his disposable income--the amount he has available to reimburse creditors.

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Gwen Smith Strikes Back at Former Sonoma County Landlord Connie Cook

February 21, 2011, by Law Offices of James V. Sansone

NeighborsPacificHeights-thumb-330x238-26411.jpgAfter a decision is rendered in a civil case by a trial judge or jury, the party who has lost the case has the right to have the decision reviewed by a higher court. This process is known as the appeals process or appellate process. Gwen Smith is fully aware of this process. In fact, it is another weapon in her legal arsenal that she uses to declare all out war on her former Sonoma County landlords, like Barbara Wilt and Connie Cook.

Under the state constitution, the Legislature is empowered to divide California into districts, "each containing a court of appeal with one or more divisions" [Cal. Const., art. VI, § 3]. The state currently has six district courts of appeal, with each district comprised of specified counties. The First Appellate District consists of the City and County of San Francisco and the counties of Marin, Sonoma, Napa, Solano, Lake, Mendocino, Humboldt, Del Norte, Contra Costa, Alameda, and San Mateo. It has five divisions, one with three justices and the rest with four justices; all divisions hold their regular sessions in San Francisco.

Armed with this knowledge, Gwen Smith filed a Notice of Appeal on January 18, 2011 (Court of Appeal Case Number A130939). Gwen Smith was appealing the $49,635.96 judgment against her and in favor of Connie Cook. The court entered its written judgment on November 22, 2010 making a finding that Gwen Smith's conduct was malicious, willful, deliberate, and was an intentional holding over designed to deprive Connie of the beneficial use of her property. This was the court's justification in awarding punitive damages against her.

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Sonoma County Landlords Watch Out: Legislation Introduced to Extend Time Period for Notice to Pay Rent from 3 to 14 Days

February 18, 2011, by Law Offices of James V. Sansone

rental-property.jpgThe first bills have been introduced by lawmakers at the State Capitol for the 2011-2012 session. As a result, Sonoma County tenants may soon get greater protections than they already possess under current California Law. Let's not forget, landlords are already subject to various new laws as of January 1, 2011.

Under current law, A landlord may initiate termination of a tenancy, before expiration of the term or period in which the tenancy would ordinarily expire, by providing a three-day notice to a tenant that the tenant has breached the terms of the rental agreement [see CCP § 1161(2)-(4)].

The unlawful detainer statute specifies that a landlord may give a tenant a three-day notice to pay or quit upon breach of the obligation to pay rent while the tenant retains possession of the subject property, CCP § 1161(2).

AB 265 was just introduced in Sacramento. This bill would increase the time of the notice period for a Notice to Pay Rent or Quit from 3 days to 14 days. The harmful impacts to landlords are apparent: (1) Delays in rent payments, (2) inability for landlords to meet their own mortgage obligations, and an added delay in evictions, to name only a few.

California is already one state that may take tenant protections too far. As I have stated previously, I don't believe that tenants should be abused and taken advantage of, but when will it be enough? If you are a concerned property owner/landlord there are groups out there to help you fight for your forgotten rights. Such groups include the California Apartment Association and North Coast Rental Housing Association

I Was Married In Another Country; Can I File for Divorce in Sonoma County?

February 16, 2011, by Law Offices of James V. Sansone

international divorceI just met with a client who was married in Canada and now wants to file for divorce in California. At our initial consultation he asked me if this was possible. I first thought that question was complicated. However, once I gave it some thought, I realized how simple it was once a person understood the law behind jurisdiction over marital dissolutions.

Generally, states have jurisdiction to dissolve a marriage if at least one spouse is domiciled in the forum state. Other states must give full faith and credit to a dissolution decree based on domicile as long as domicile is genuine.

California law defines domicile as usually being the place where a person has his or her home and, at least for that purpose, no person has more than one domicile at a time. Home is defined as a place where a person dwells and that is the center of his or her domestic, social, and civil life. Further, according to Family Code Section 2320 a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of California for six months and of the county in which the proceeding is filed for three months immediately preceding the filing of the petition.

Under the law, where you got married is not as important as were you are living when you decide to get divorced. Thus, after thinking back to my law school days, I was able to advice this potential client that as long as he lived in California for 6 months and in Sonoma County for 3 months, he would be able to file for divorce on his Canadian marriage.

Rent Control Statutes Can Create Additional Road Blocks for California Landlords

February 14, 2011, by Law Offices of James V. Sansone

Rent_control.jpgAlthough state law provides that an owner may terminate a month-to-month tenancy for no reason or any reason at all if 30 or 60 days' written notice is given, commonly local rent control laws require "just cause" to evict, meaning an owner may only evict a tenant for one or more of the reasons stated in the rent control law [see, e.g., Berkeley Mun Code § 13.76.130; Beverly Hills Code § 4-5-501 et seq.; East Palo Alto Mun Code § 14.04.290(A); Los Angeles Mun Code § 151.09(A); Oakland Mun Code § 8.22.300 et seq.; San Francisco Admin Code § 37.9; Santa Monica Charter § 1806; West Hollywood Mun Code § 17.52.010 et seq.].

A landlord's violation of the local rent control ordinance may give rise to an affirmative damages claim by the tenant, which may be asserted in a separate action in addition to being asserted as a defense to an unlawful detainer action.

If an area is subject to rent control, "just cause" for an eviction can include, but may not be limited to, the following grounds.

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Is There A Quick And Inexpensive Way To Get A Divorce In Sonoma County?

February 11, 2011, by Law Offices of James V. Sansone

divorce8044090.jpgThe answer to this question, like all other legal answers, is "it depends". If you have read any of my other blog posts, you know that this is one of my favorite replies. However, all sarcasm aside, it's an honest, true, and correct answer. There are very few legal questions that can be answered absolutely.

If you qualify, a "summary dissolution" may be your answer. The summary dissolution procedure is a more or less clear-cut and economical means for obtaining a divorce from a marriage of no more than five years in length with no children and limited assets and liabilities (see California Family Code § 2400, et seq.)

There must be agreement between the parties that the marriage should be dissolved because the parties must file a joint petition for dissolution. Distinct from the procedures involved in a standard dissolution, once the petition has been filed, no further action is required until the parties are ready to apply for a final judgment of dissolution. There is no prerequisite for a hearing on the petition if all goes according to plan.

The summary dissolution procedure is available to the parties only if specific conditions exist at the time the joint petition for dissolution is filed. These conditions are spelled out in California Family Code § 2400 and are as follows:

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Sonoma County Bankruptcy, Divorce, Family Law, and Eviction Attorney KFTY 50 Commerical

February 10, 2011, by Law Offices of James V. Sansone

Please click on the following video to learn more about my firm.

What Happens To My Income Tax Refund If I File Chapter 7 Bankruptcy?

February 9, 2011, by Law Offices of James V. Sansone

tax-refund12.jpgMany potential Sonoma County, Mendocino County, or Lake County debtors walk through my door to find out if a chapter 7 bankruptcy is a good option for them. One common question I get asked this time of year is if a debtor can keep his tax refund if he files for chapter 7 bankruptcy. The answer to this question may depend on the debtor's timing.

A factor to be considered in deciding on a bankruptcy course of action when dealing with a tax refund is the timing of the petition. Even after the debtor decides that a bankruptcy should be filed, in many cases it is advisable to wait before filing. This is important, because if you file a bankruptcy petition before you receive your refund, if you don't have enough exemptions left, you will be required to turn over the refund to the trustee so that he can pay creditors' claims. The simplest solution is for the debtor to wait to file for bankruptcy.

Of course, in some cases, a debtor has no choice but to file immediately. Prompt action may be necessary to forestall a repossession, eviction, execution sale or utility shut-off. It may also be the only way to stay a state court proceeding and avoid the unnecessary work and trouble connected with it.

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Can A Sonoma County Debtor Keep Their Car After They File For Bankruptcy If They Have A Car Loan, Part II?

February 7, 2011, by Law Offices of James V. Sansone

bankruptcy redemption Yes. The third choice available to a Sonoma County debtor is called redemption. The first two options were discussed in a previous blog post. Section 722 of the Bankruptcy Code provides that an individual debtor may redeem consumer goods from a lien securing a dischargeable consumer debt, if the property is exempted under section 522 of the Bankruptcy Code or has been abandoned by the trustee, by paying the lienholder the amount of the allowed claim secured by the lien, i.e., the value of the lienholder's collateral if the creditor is undersecured.

In English, this means that a debtor can pay off their car loan by paying their lender the fair market value of the automobile, instead of the current value of the loan. For example, if you have an outstanding balance on your car loan of $15,000 but the fair market value of your car is only $10,000; your lender MUST accept payment in full satisfaction of the loan for $10,000. Utilizing redemption, you are no longer liable for the deficiency of $5,000.

What types of property are subject to redemption?

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Now That A Tenancy Is Created, How Do I Get A Sonoma County Tenant Out Of My House?

February 4, 2011, by Law Offices of James V. Sansone

Thumbnail image for Thumbnail image for eviction-notice.jpgAs I discussed in my last post, a tenancy may be created without a formal agreement, simply by consent and acceptance of rent, despite the absence of a lease or formal rental agreement. However, a tenancy may be terminated. A landlord may terminate a tenancy on more than one ground. In a jurisdiction, such as Sonoma County, Mendocino County, or Lake County, without eviction control, the landlord may generally terminate a month-to-month tenancy even if the tenant is not in default simply by providing a 30-day or 60-day notice to a residential tenant.

Additionally, California law provides that a landlord may give notice to a tenant that the landlord believes the tenant has abandoned the tenancy and the consequences of such abandonment. If suitable, a landlord may also give notice to a tenant to inform the tenant that the tenant is in default of the tenancy agreement and that the landlord will initiate litigation if the breach is not cured.

Finally, specialized statutes allow landlords to terminate an agreement to lease a room to a lodger by service of a proper termination notice, which in turn will allow the landlord to bypass the unlawful detainer process and have the lodger physically removed from the premises by the police (California Civil Code § 1946.5). However, just because a landlord has this right does not mean a landlord can enforce this right.

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Creation of A Sonoma County Landlord Tenant Relationship Does Not Require An Official Written Agreement

February 2, 2011, by Law Offices of James V. Sansone

2010_01_victory1.jpgI have lost count regarding the number of times a tenant contacts my office and believes they do not have to pay rent because they never signed an official written rental agreement. Rent is owed whether or not a valid written agreement exists.

While an official written rental agreement is not required to create a landlord tenant relationship, a tenancy is required for either a landlord or a tenant to have enforceable rights. For a tenancy to be created, there generally must be an express or implied agreement between the parties.

A tenancy may be created without a formal agreement, simply by consent and acceptance of rent, despite the absence of a lease or formal rental agreement. Even if a written agreement exists, it does not need to be enforceable for a valid landlord-tenant relationship to exist. The relationship can come into existence by operation of law even if the parties never entered into an enforceable agreement.

So, if you are a Sonoma County property owner or occupant watch out. If money has changed hands in consideration for taking possession of a piece of real property, even a bedroom in one's home or apartment, be careful. You probably just became a landlord and are now subject to all the obligations imposed on a California landlord.

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