March 2011 Archives

Santa Rosa Bankruptcy Basics "101" Part II, Types of Bankruptcy

bankruptcy-chapters.gifThe most common types of bankruptcy for individual consumers are Chapter 7 and Chapter 13.

Chapter 7: Chapter 7 is the "operative" chapter of the Bankruptcy Code that normally governs liquidation of a debtor. Liquidation involves the collection, liquidation and distribution of the nonexempt property of the debtor and culminates, if the debtor is an individual, in the discharge of the debtor. Chapter 7 allows for the discharge of unsecured debts including credit cards, medical bills and personal loans. In the average case, a person is usually able to exempt all their personal property to avoid a sale. The Chapter 7 process can be completed in as little as 90 days, allowing you to begin rebuilding your financial standing.

Chapter 13: Chapter 13 of the Bankruptcy Code is titled "Adjustment of Debts of an Individual with Regular Income." Chapter 13 permits a debtor to deal comprehensively with both unsecured and secured debts. This is accomplished through the chapter 13 plan, which only the debtor may propose. The plan sets out, within statutory parameters for plan confirmation, how the debtor desires to make payments to various creditors.

A chapter 13 plan can provide for the payment of secured claims to permit the debtor to retain collateral for those claims and may provide for the cure of arrearages on long-term debts, such as home mortgages. The debtor may retain nonexempt property if the plan provides that unsecured creditors will receive the property's present value in the form of plan payments.

If the debtor completes the chapter 13 plan, the debtor receives a discharge on all remaining eligible debt.

The bankruptcy codes also provides for bankruptcy under Chapter 11, 12, 9, and 15.

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California Legislatur​e Revives 14 Day Notice Proposal Santa Rosa Landlords Must Take Action

bill.jpgAs discussed in a previous blog post and based on the California Apartment Association's recent Legislative Alert, below are two important bills which need all Santa Rosa landlords' letters of opposition.

AB 265 will extend the 3 Day Notice to Pay Rent or Quit to 14 days. The bill has now been set to be heard on April 5, 2011, in the Assembly Judiciary Committee. Petaluma landlords' letters of opposition are needed. As discussed in a previoius blog post, the negative impacts of this proposal to the rental housing industry would be many, including delays in rent payments, the inability for some owners to meet mortgage and other financial obligations and the added delay in evictions to name a few. If this bill moves out of the Judiciary Committee, it will go to the Assembly Floor, send a letter to your Assembly Member now.

AB 934 would allow a tenant to sue a rental property based on the statements made in an unlawful detainer action.

The negative impacts of this proposal are many including that a property owner could be sued by a tenant for statements made in legally required pre-litigation documents (3 Day Notices, for example), before that litigation is even resolved. Owners would be greatly discouraged not only from pursuing a court action, but also from serving tenants with notices that may result in their compliance, thereby preventing the need for an eviction.

This bill has been passed out of the Judiciary Committee and could be voted on by the full Assembly in the next week or so. Your letters in opposition are needed now. Click here to send a letter to your Assemblyperson.

James Sansone is an experienced Santa Rosa eviction lawyer. His office is located in Santa Rosa, California and helps clients deal with their landlord tenant disputes 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.

Santa Rosa Bankruptcy Basics "101"

loans-after-bankruptcy1.jpgChapter 7 bankruptcy is the "operative" chapter of the Bankruptcy Code that governs liquidation cases. Chapter 7 is the chapter most frequently chosen by individual debtors. A chapter 7 case is commenced by a petition, which may be filed voluntarily by a debtor or by a husband and wife jointly, or may be filed by creditors seeking an involuntary bankruptcy case. A case also may be converted to chapter 7 from chapter 11, chapter 12 or chapter 13.

The filing of a voluntary petition constitutes an "order for relief" under chapter 7. In an involuntary case, the court enters an order for relief if the involuntary petition is not controverted or if the debtor is found to meet the criteria for involuntary relief.

The filing of a petition brings about the creation of the bankruptcy estate. Section 541 defines the property of the estate. After the order for relief, an interim trustee is appointed by the United States trustee to administer the case.

The filing of the petition, with certain exceptions, also effectuates the automatic stay of section 362(a), protecting the debtor and the estate from most creditor actions.


In today's troubling economic climate, it has become more commonplace than ever to fall behind on your financial obligations. Whether you are swimming in high credit card debt, have incurred extensive medical bills from an injury, or have been laid off and fallen behind on your mortgage, you may be able to find effective relief by filing bankruptcy through the Chapter 7 or Chapter 13 bankruptcy process.

The Law Offices of James V. Sansone is located in Santa Rosa, California and helps clients determine if bankruptcy is the right option for their individual needs 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.

JVS Law Is Once Again Proud to Sponsor The 2011 Relay For LIfe Survivor Appreciation Brunch

Logo.gifSanta Rosa Relay for Life and the American Cancer Society invites you and your family to The Survivor Appreciation Brunch which is scheduled for Saturday April 30th at 10:30am. The brunch will be held at St Luke's Lutheran School and Church located at 905 Mendocino Ave, Santa Rosa CA 95401. The brunch is open to all cancer survivors and their care takers.

This brunch is Santa Rosa Relay's way of honoring and welcoming all survivors into the 2011 Relay season.

Space is limited to the first 120 people to RSVP. RSVP by April 16th to kellysansone@comcast.net.

This year the Santa Rosa Relay for Life is scheduled to begin on September 10, 2011 starting at 10:00am and will last until September 11, 2011 ending at 10:00am. The relay will be located at Maria Carillo High School in Santa Rosa.

New Tenant Screening Requirement That Santa Rosa Landlords Must Be Aware Of

inspector.gifAs reported by the California Apartment Association, the federal Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 requires users of consumer reports, beginning on July 21, 2011, to also provide credit scores to applicants if the score was used in taking adverse action.

Currently the Fair Credit Reporting Act requires that an adverse action notice only include notice of the applicant's right to receive a free copy of his or her consumer report. The Dodd-Frank Act amended that to stipulate the credit score itself must be included.

On March 1, 2011, the Board of Governors of the Federal Reserve System issued proposed regulations which contain sample notices to comply with this requirement. Once these regulations are finalized, landlords may obtain copies of these updated forms from the California Apartment Association.

Adverse action notices are provided to rental applicants who, after the tenant screening process, are denied or conditionally accepted. Currently the notice must include:

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Involuntary Bankruptcy May Be A Useful Tool For Santa Rosa Creditors To Protect Their Rights

imagesCA83VEGB.jpgInvoluntary bankruptcy cases constitute only a small portion of the total number of bankruptcy cases filed. Yet the threat of creditors forcing a business or individual into bankruptcy is significant for all parties and can affect a potential debtor's decision-making, such as furthering an early filing of a voluntary case or encouraging an out-of-court settlement.

Section 11 USC 303(a) limits the Bankruptcy Code chapters under which an involuntary petition can be filed and the persons that can be the subject of such cases. An involuntary case can be commenced only under chapters 7 and 11 and specific persons are expressly precluded from being subjected to an involuntary filing, namely farmers, family farmers and corporations that are not moneyed, business or commercial corporations. An involuntary bankruptcy case can be commenced only against a person that may be a debtor under chapter 7 or chapter 11 of the bankruptcy code.

The bankruptcy code provides that the only entities that can commence an involuntary case are those holding claims that (1) are not contingent as to liability and (2) are not subject to a bona fide dispute as to liability or amount. The aggregate of the claims of such entity or entities must be at least $14,425 of unsecured debt.

The basic requirement under section 303(b)(1) to determine how many creditors must file the involuntary bankruptcy is that if the debtor has 12 or more eligible "creditors" three or more petitioning creditors are needed. If the debtor has fewer than 12 creditors one petitioning entity is sufficient, although more are permitted.

Forcing a debtor into bankruptcy may be a powerful tool for creditors in very factual specifics cases, but involuntary filings must be in good faith. If it is determined that an involuntary petition has not been filed in good faith, the petition may be dismissed by the court and/or a debtor may be awarded damages, including punitive damages.

When does an involuntary petition make sense?

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Filing for Bankruptcy In Santa Rosa Requires More Than Your Declaration That You Are Filing Bankruptcy

bankruptcy.jpgMore and more clients are coming into my office to discuss their bankruptcy options. Once a determination is made that bankruptcy is a valid option for them, as bankruptcy is not right for everyone, I provide them with several on-line resources helpful to bankruptcy and my client intake from, along with a detailed explanation of how to begin to prepare the form. They leave my office finally able to see a light at the end of the tunnel.

Then, without fail, it happens. I get a telephone call 1-2 days later, before I get provided with all the background documentation I need to prepare their bankruptcy petition, asking if their petition was filed. To their surprise, my answer is no, we are not even close.

It takes much more work than your decision to file bankruptcy to actually file bankruptcy. While a diligent person can gather all required documents relatively quickly, in my experience, it takes the average person at least one to two weeks to gather all required documents and fill out my intake form.

In addition to the gathering of the documents, debtors are required to take a credit counseling class prior to their petition being filed. In addition to the document gathering, analysis, and credit counseling, there may also be important timing issues. For example if you just lost a high paying job, it may be advisable to wait six months before filing your petition, or if you are awaiting a medical procedure which may not be covered by medical insurance, it may be advisable to wait until the procedure has been completed before you file.

In short, there are a substantial amount of important factors and work that go into the filing of a bankruptcy petition. An experienced Santa Rosa bankruptcy attorney is a great resource to guide you throughout the labyrinth of bankruptcy.

The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients with their bankruptcy options 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.

The Affects Of Domestic Violence Allegations On Child Custody In A Santa Rosa Divorce

purestock_1574r-01626_medium.jpgThe trial court is always bound to make a custody decision based on the child's best interest. In making a determination of the best interest of the child, the court must consider any history of abuse by one parent or any other person seeking custody against any of the following: (1) any child to whom he or she is related or has had a caretaking relationship; (2) the other parent; or (3) a parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

Pursuant to Cal Fam Code § 3044, upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. In determining whether the presumption has been overcome, the court is required to consider specific factors as defined in the family code, some of those factors including but are not limited to:

(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child, (2) whether the perpetrator has successfully completed a batterer's treatment program, (3) a program of alcohol or drug abuse counseling, if appropriate, or (4) a parenting class.

Why is this important? Well, in the world of family law I have been involved in many cases where one side will use the allegation of domestic violence to gain an advantage in the pending custody battle by obtaining a Domestic Violence Protective Order under the Domestic Violence Protection Act (DVPA)

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If You're a Santa Rosa Landlord, Is Your Rental Property Insured for Lead?

Lead-based-paint-disclosure-300x290.gifImagine that you or your property management company is suddenly hit with a civil lawsuit. The suit is filed under the Consumer Protection Act for violating the Environmental Protection Agency (EPA's) Lead-Based Renovation, Repair and Painting Rule.

A large amount of suits have been filed against landlords and contractors accusing them of being responsible for the effects of lead paint in the older properties they own. Disturbing lead within the building structures while work is being performed - typically lead paint on windows and doors - can result in significant liability on the part of the owner doing the repairs or the contractor through both bodily injury and clean-up exposures.

In other instances, if a subcontractor causes a pollution issue and does not have adequate environmental insurance coverage, the property owner may have to defend himself against claims relating to work for which they were responsible due to hiring of the subcontractor.

As of April 22, 2010, federal law now requires that renovation firms and individuals doing work on pre-1978 properties must be certified under EPA's Renovation, Repair and Painting Rule. This is why you need to know the facts about lead paint and how disturbing it poses serious health risks to the people in your building, especially children. You can visit the EAP website to learn about the dangers and how to hire a Lead-Safe Certified contractor, and how to make sure your own maintenance staff is doing the right thing. California Apartment Association affiliates also offer certification training.

Landlord/tenant law can be very complex, even in simple disputes of rent and contract law. Whether you are a landlord seeking eviction or you are a tenant looking to protect your rights in an eviction dispute, it is important to consult with an experienced landlord tenant attorney as soon as possible. At the Law Offices of James V. Sansone, of Santa Rosa, California, we take a strategic approach to best protect your rights and achieve solution in your favor in all aspect of landlord tenant law.

Just When Santa Rosa Landlords Think Evictions and Landlord Tenant Law in Santa Rosa Can't Become Any More Difficult To Understand!

497345293_2fe015d238_z.jpgOver 2,300 bills have been introduced since the February 2011 California Legislative deadline. Besides the proposed new laws that will effect Petaluma evictions, reported to a previous blog post, here is an additional set of proposed new laws that effect evictions in Rohnert Park, Cotati, Petaluma, Sebastopol, Santa Rosa, Ukiah, as well as the rest of California.

SB 332: This bill would authorize a residential landlord to prohibit the smoking of tobacco products any place on the property.

SB 337: This bill would forbid a landlord from prohibiting a tenant from posting or displaying noncommercial signs, posters, flags, or banners on or within any portion of a dwelling unit leased by the tenant.

AB 934: Unlawful Detainer - Privileged Communication - This bill would allow a tenant to sue a rental property owner for false statements made in an unlawful detainer action. The litigation privilege, under current California Law, currently protects property owners from these types of claims.

AB 579: This bill would allow the award of attorney's fees and some litigation expenses to a prevailing local government entity in an action brought by the owner of a mobilehome park who challenges the validity or application of a local ordinance, initiative, or regulation concerning mobilehome rent control.

SB 184: This is a "spot" bill which will provide that the State's Costa-Hawkins Rental Housing Act does not prohibit a city or a county from imposing an inclusionary housing law to require developers to make a percentage of their new rental housing units available at an affordable rate to low income tenants.

The Law Offices of James V. Sansone are experienced Santa Rosa eviction attorneys who will take the time to understand the facts of your case, apply the law, and aggressively pursue your interests. We will work to protect your financial interests as well as your future rights as a landlord or tenant.

Mortgage Principal Pay Down Plans In Santa Rosa Bankruptcy?

House_sinking.jpgAs most Americans are aware as reported on Forbes.com, the "Cramdown Bill", which would have permitted bankruptcy judges to modify the conditions of underwater mortgages held by struggling homeowners, failed by a 45 to 51 vote in the Senate, falling remotely short of the 60 votes required for its passage back in 2009.

As a result of this defeat, the National Association of Consumer Bankruptcy Attorneys, (NACBA), announced a new proposal to address the pandemonium of the mortgage industry that is causing the foreclosure and robo-signer crises across the United States. The Principal Paydown Plan, does not require legislation if it is approved by investors, insurers, and government agencies. These key players would require the acceptance of Chapter 13 Bankruptcy plans that include a specific condition detailing and implementing this principal pay down.

According to a NACBA news letter, some of the main components of the Principal Paydown Plan include:

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What Affect Does A Bankruptcy Have On A Santa Rosa Divorce

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Statutory Homestead Cap Is Doubled in Joint Bankruptcy Filings, At Least According To The 10th Circuit Court Of Appeals

bankruptcy homestead.jpgJust like California, residents of Oklahoma may not opt to exempt property from the bankruptcy estate under the federal set of exemptions, but are limited to claiming exemptions under state law.

In the case of In re Nestlen, the Debtors filed a petition under Chapter 7 of the Bankruptcy Code on December 1, 2009. On their Schedule C, they claimed their homestead, which they valued at $275,000, as fully exempt under Oklahoma law. One of their creditors, Dykstra, objected to the exemption, arguing that the debtors had increased their equity in the property during the 1,215-day period prior to the Petition Date, and therefore their homestead exemption was limited in amount to $136,875 by virtue of 11 U.S.C. § 522(p).

11 U.S.C.S. § 522(p)(1) provides that a debtor may not exempt any amount of interest in a homestead that was acquired by the debtor during the 1215 day period preceding the date of the filing of the petition that exceeds in the aggregate $136,875 in value. Arguing that the Debtors were not entitled to exempt the entire value of their Homestead, Dykstra invoked § 522(p)(1), that caps equity acquired in the 1215 day period to $136,875.

Since the debtors paid down loans on their home within the 1215 days look back period, Dykstra argued that by investing non-exempt funds in their Homestead within the 1,215-day prepetition period the Debtors increased their equity in the Homestead in an amount in excess of the $136,875 ceiling established by § 522(p), and therefore the equity exceeding $136,875 was not exempt.

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My Wife Filed For Divorce And Told Me I Would Never See My Children Again, Is That True?

Thumbnail image for child-custody.jpgThat is probably one of the most common questions I get from fathers who are involved in a highly contested Sonoma County Divorce. What is even more surprising to me is the number of fathers who believe the law favors the children staying with the mother. In reality, there is a strong presumption in the California Family Code that it is in the best interest of the children to have both parents equally involved in their lives.

The "best interests" standard for determining the custody of a child is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult. Courts must weigh the appropriate factors and determine the child's best interests solely from the standpoint of the child. The court should consider all pertinent circumstances bearing on the child's best interest, but should not consider the feelings and desires of the parents, except insofar as they affect the child's best interests. Nor can custody be granted to one parent as a disciplinary action to punish the other for conduct unrelated to the best interests of the child. So to the surprise of many family law litigants, it does not matter who cheated on who when determining child custody.

A best-interests determination depends on a true assessment of the emotional bonds between parent and child, as well as reflecting a factual determination of how best to provide continuity of attention, nurturing, and care. The assessment involves an inquiry into the heart of the parent-child relationship, which is the ethical, emotional, and intellectual guidance that the parent gives to the child.

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