April 2011 Archives

JVS Law Supports The American Cancer Society And Is A Sponsor Of the 2011 Santa Rosa Relay For Life

JVS Law is sponsoring the 2011 Relay for Life Survivor's Brunch which is scheduled for Saturday April 30. The brunch is designed to honor those individuals who have been affected by cancer and to drum up support for this year's event.

The brunch is scheduled for Saturday April 30th and begins at 10:30am. This year's 24 hour relay event is scheduled to begin on September 10, 2011 starting at 10:00am and will last until September 11, 2011 ending at 10:00am.

Anyone can develop cancer. About 1,529,560 new cancer cases were expected to be diagnosed last year. Cancer is an awful disease and none of us can afford to rest until a cure is found. Support for the 2011 Santa Rosa Relay for Life is one small way people can take a stand against this dreadful disease so one day the words "you have cancer" can be eradicated from our vocabulary.

Even Utilizing California's No Fault Eviction Statutes, A Santa Rosa Landlord Can't Evict A Tenant Who Exercises His or Her Legal Rights

Landlord-Guide-Eviction-Process.jpgUnder the common law doctrine of retaliatory eviction, while a landlord may normally evict a tenant for any reason or for no reason at all unless otherwise prohibited by law, a landlord may not evict for an improper reason. In addition to the common law protection against retaliatory eviction, a residential tenant also has statutory protection against eviction in retaliation for exercising any legal right [see CC § 1942.5(c)], such as complaining about discrimination, reporting unsafe conditions about the subject property to the housing authority, or reporting criminal activities to law enforcement. Certain specific retaliatory actions by the landlord are prohibited by statute if they occur within 180 days of specified actions related to tenantability of the premises or other statutory rights related to leasing of a dwelling [CC § 1942.5(a)]. A tenant may bring an independent action against the landlord for both actual and punitive damages for retaliatory eviction

The willful eviction of a tenant is a breach of contract, and thus an action for wrongful eviction is contractual in nature. The tenant is entitled to recover for all detriment that is proximately caused by, or that in the ordinary course of things would be likely to result from, the said breach. In addition, a tenant may recover special damages naturally and proximately resulting from the eviction, including necessary moving expenses and any sum advanced for future rent.

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Santa Rosa Debtors May Claim An Extra $200 Per Vehicle For Operating Expense In The Means Test

472433_2.gifRobert and Penny Baker, In re: Robert & Penny Baker, Debtors, filed a voluntary Chapter 13 bankruptcy petition and listed three vehicles in their schedules. On Form 22C, the Means Test, the debtors calculated their disposable income on Line 59 of Form 22C as $607.02. Debtors calculated their monthly disposable income by deducting $836.00 on Line 27(a) of Form 22C.

The debtors argued that they were entitled to deduct an additional $200.00 for each of the two vehicles as ownership expenses as allowed by the Internal Revenue Manual, since the manual allowed debtors to deduct an extra $200 per vehicle for vehicles that are more than 6 years old or that have more than 75,000 miles on them.

The trustee objected, stating that the court should not consider the IRS Manual because it was not subject to the publication and notice standards required under the Administrative Procedures Act. The court disagreed, relying on the fact that the United States Supreme Court in Ransom vs. FIA Card Services stated that is was appropriate to look at the Internal Revenue Manual for guidance when it decided the issue of whether debtors may claim an allowance for car ownership costs.

What this means: Debtors were allowed to deduct an extra $200 per vehicle for operating costs. This saved the debtors $400 per month and $24,000 over the life of their plan.

This is a prime example of why debtors should hire an experienced bankruptcy lawyer as opposed to filing themselves or utilizing the services of a document preparation company. It took a bankruptcy attorney to figure out an argue in favor of this extra $400 per month deduction. If it were not for this lawyer's research and legal argument, the debtors would have paid an extra $24,000 in the Chapter 13 Plan, a fact creditors would have loved.

The Law Offices of James V. Sansone is located in Santa Rosa, California and helps people file for bankruptcy relief under the United States Bankruptcy Code 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 Debtors Filing For Bankruptcy Retain Their Protection From Negative Equity

delraylot.jpgIn a Chapter 13 Bankruptcy you may be eligible to cram down your car loan in you Chapter 13 repayment plan. What is a "cram down"? A cram down in a Chapter 13 Bankruptcy is when you force your automobile financing company to accept as full payoff and satisfaction of your automobile loan the fair market value of your car as opposed to the actual loan payoff amount. Thus, if your car loan is upside down, you can pay if off in full by paying the full fair market value of your car and walk away from the remaining deficiency balance.

The ability to cram down depends on how long ago the vehicle was financed from the date your bankruptcy petition was filed. If you purchased your vehicle less than 910 days from the filing of your bankruptcy petition, you will end up paying the full balance due, regardless if your loan is greater than the value of the vehicle. On the other hand, if you purchased your vehicle more than 910 days from the date of filing, you would be allowed to "cram down" the claim to equal the fair market value of the vehicle.

The difference between the fair market value of the vehicle and the loan amount has been referred to as "negative equity". In essence, the general rule in all but one circuit is that the automobile financing company retains its purchase money security interest in its entire loan amount, including this "negative equity". However, we who live in the 9th Circuit have a legal advantage over those debtors who reside in other circuits.

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Rights And Duties Of A Santa Rosa Landlord During A Tenancy

repair-responsibilities-landlords-1_1-800X800.jpgI received an e-mail the other day from a landlord. She wanted to know what she had to do to protect herself from being sued by her tenants. The answer to this question, of course, could cover an entire semester in law school. However, if I could only advise this landlord of one thing I would tell her to know what duties California law imposes on landlords.

In my opinion, the most common way a landlord gets in legal trouble is the wrongful withholding of a security deposit. However, a close runner up is the landlord's failure to repair.

Pursuant to Civil Code 1941, a landlord of a residential building must, in the absence of an agreement to the contrary, (1) put the building into a condition fit for human occupation and (2) repair all subsequent dilapidations of the building, which render it untenantable.

However, notwithstanding the above, a landlord is not required to repair deteriorations or damage to the building caused by the tenant's lack of ordinary care. Further, a landlord's duty to repair an untenantable dwelling does not arise if the tenant is in substantial violation of any of the tenant's affirmative obligations in maintaining the premises.

According to Civil Code 1941.1, A dwelling is deemed untenantable if it "substantially lacks any of the following affirmative standard characteristics"

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The Scope of the Bankruptcy Automatic Stay in A Santa Rosa Divorce

ChildSupport_Ongoing)328x183.jpgThe automatic stay associated with a bankruptcy filing is frequently a major factor in a debtor's decision to initiate a bankruptcy case. The automatic stay which becomes effective instantly at the time of the filing of a bankruptcy petition is an instrument of all-encompassing span and incredible power. It is intended immediately to put the debtor and the debtor's property under the protection of the bankruptcy court.

In fact, according to H.R. Rep. No. 595, 95th Cong., 1st Sess. 340 (1977), "The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization, or simply to be relieved of the financial pressures that drove him into bankruptcy."

The scope of the stay is set out in 362(a) of the United States Bankruptcy Code and is subject to an extensive list of exceptions.

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What Rights of Visitation Do Grandparents And Other Family Members Have In A Santa Rosa Child Custody Dispute?

grandparents.jpgIn the discretion of the court, visitation rights may be granted to a nonparent who has an interest in the welfare of the child. Statutes also provide for visitation rights to grandparents.

It has been held that visitation may not be granted to a nonparent over the joint opposition of parents having custody of the children merely on a finding that it would promote the best interests of the child. If the parents are unified in opposition, nonparent visitation may not be ordered unless it is clearly and convincingly shown that denial would be detrimental to the child.

California Family Code § 3104 provides that a grandparent may be granted reasonable visitation rights with a grandchild if the court does both of the following:

1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child; and

2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

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Santa Rosa Bankruptcy Debtors Beware: Court Sentences Debtors Who Were Found Guilty For Bankruptcy Fraud

criminal-law.jpgIn two of my past postings, one on February 28, 2011 and one on January 7, 2011 I discussed the downfalls and potential consequences for failing to disclose assets in your bankruptcy petition. Well, two Indianapolis debtors should have been reading my blog.

Christopher and Tiffany Welton were sentenced to house arrest and 36 months probation following their guilty plea to two counts of bankruptcy fraud.

The debtors filed a Bankruptcy Petition under Chapter 7 of the Bankruptcy Code. In their Schedule "B" under the jewelry section they listed one wedding ring valued at $1,000. No other pieces of jewelry were listed as an asset. At their meeting of creditors both debtors testified that they had owned jewelry in the past but had sold it all prior to filing the bankruptcy petition.

Two months after the petition was filed, and after the meeting of creditors, the debtors admitted that they had not disclosed all of their jewelry and had undervalued the listed wedding ring by $27,613. Contrary to their bankruptcy petition, and their testimony at the meeting of creditors under oath, the evidence established that they owned six pieces of jewelry in addition to the wedding ring that was listed in their schedules. The evidence established that the appraised value of the undisclosed jewelry was $61,749. The jewelry was turned over to the trustee and sold at auction for $17,400.

I can't say it enough; bankruptcy favors the honest debtor but can come down like the wrath of a Greek God on debtors who are dishonest. An experienced Santa Rosa bankruptcy lawyer can assess your situation and guide you in preparing an honest and accurate bankruptcy petition. When it comes to your bankruptcy schedules, there is no room for dishonesty or liberal valuations of your assets. The price can be too high.

The Law Offices of James V. Sansone is located in Santa Rosa, California and helps people file for bankruptcy relief under the United States Bankruptcy Code 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.

Landlords Succeed in Challenging Two Bad Bills That Would Have Increased Tenant Protections In A Santa Rosa Eviction

eviction_notice.jpgThe California Apartment Association has reported that the language that would have extended the grace period a tenant has to pay rent before an unlawful detainer can be filed from 3 days to 14 days was removed from AB 265.

The negative impacts of this proposal to the rental housing industry would have been many, including delays in rent payments, the inability for some owners to meet mortgage and other financial obligations and the added delay in evictions.

Regrettably, the fight is not over. Amendments have now been added to the bill that will allow for additional delays in the eviction process. These new amendments will allow tenants to request a stay of eviction, at any time during the process, so long as the tenant pays the rent and pays the landlord's attorney's fees, which are not to exceed a whopping $350. These amendments do not take into account the many delays a skilled tenant already has available to her to stall the process and cost the landlord thousands of dollars.

Sue Your Landlord Bill Stalls on Assembly Floor

Continue reading "Landlords Succeed in Challenging Two Bad Bills That Would Have Increased Tenant Protections In A Santa Rosa Eviction " »

Are There Any Circumstances Where I Can Discharge My Student Loan In A Santa Rosa Bankruptcy?

student-debt.jpgMost people I talk to are painfully aware that under current bankruptcy law the general rule is that student loan debt can't be discharged in a bankruptcy. This, of course, begs the question, can student loan debt ever be discharged. The answer is yes, but it is very difficult.

The exception to discharge for student loans resulted from publicity over a supposed flood of bankruptcies in the early 1970s filed by students who were just finishing their education with the purpose of discharging their student loans before they started earning money. Generally, if a student loan debt is nondischargeable, postpetition interest on the debt is also not discharged. Some courts have held, however, that contractually imposed liquidated damages for nonpayment of student loans are dischargeable, because the penalties are not debts for an "educational loan."

Currently, the sole exception to the nondischargeability of student loans is available when excepting the debt from discharge would cause the debtor of the debtor's dependents "undue hardship."

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What Will My Child Support Payment Be In My Santa Rosa Divorce?

Child_Support_-_Money_Changes_Hands.jpgIn implementing child support, the family code spells out principles that the courts must follow when determining a child support order. Some of these principals include the following:

1) A parent's first and principal obligation is to support his or her minor children. Simplistically put, don't come to court and argue you can't pay child support because your car payment, mortgage payment, or grocery bill is too high, it will not work and is of no concern to the court.

2) Both parents are mutually responsible for the support of their children.
The support calculation takes into account each parent's actual income and level of responsibility for the children.

3) This guideline seeks to place the interests of children as the state's top priority.
Children should share in the standard of living of both parents.

4) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.

Child support is computed by first figuring out the total net income of each parent. The annual gross income of each parent means income from whatever source derived, and includes, but is not limited to commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person who is not a party to the child support order, and income from the operation of a business.

Remember, above when I said don't come to court and argue you can't pay child support because your car payment, mortgage payment, or grocery bill is too high, it will not work and is of no concern to the court. The reason this does not work is because the annual net disposable income of each parent is computed by only deducting from his or her annual gross income the actual amounts attributable to the following items:

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Revenge of Gwendolyn Smith, Why Screening Tenants May Help Landlords Avoid a Santa Rosa Eviction

pacific-heights-poster.jpgIn Gwen Smith Strikes Back at Former Sonoma County Landlord Connie Cook, I reported to you that Gwen Smith was appealing the $49,635.96 judgment against her and in favor of Connie Cook. I also told you that since Gwen failed to procure the record on appeal within the statutory time period her appeal was dismissed. Well, Gwen has more lives than a cat. On March 8, the First District Court of Appeals vacated its order dismissing Gwen's appeal. Gwen filed a motion with the appellate court claiming ignorance on her part and incompetence of the Sonoma County Superior Court.

Ignorance? Gwen has filed five appeals and/or writs with the First District Court of Appeals alone. Further, Gwen describes herself as the "unlawyer" bragging about her years of legal experience on a Craig's List advertisement.

So now that her appeal is reinstated, Connie Cook must relive her nightmare and be revictimized by her former tenant who purports to hold a law degree and master's degree. After the trial court ruled against her back in November 2010, Gwen told me in the hallway of the Sonoma County Superior Court, not to underestimate her resilience. She is making good on her statement, which is no real surprise to me. So now, Connie Cook is, once again, trapped in another legal battle with Gwen Smith that could last over 12 months, just in case losing her home and almost all of her entire retirement income was not enough.

It is worth noting, that while this appeal is being litigated, Gwen's appeal of the judgment against her and in favor of her other former Sonoma County landlord Barbara Wilt is still pending as well as Gwen's two legal suits against her two former landlords in Oregon.

Many landlords come into my office and tell me they don't think paying for tenant screening is worth it. Well, ask Connie Cook, Barbara Wilt, or Lance Hilt if they think screening a tenant is important.

There are many companies that provide tenant screening services and these services are not expensive. Especially if you consider that a simple tenant screening can avoid years of litigation. However, before any landlord screens a tenant, they should be aware of the new regulations concerning screening tenants that will be effective later this year.

The Law Offices of James V. Sansone is located in Santa Rosa, California and serves landlords and 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.

No Really, The Laws Governing Spousal Support In A Santa Rosa Divorce Are Gender Neutral.

istock_000004621270xsmall.jpgIn any legal proceeding for divorce or legal separation the court may order a party to pay for the support of the other party any amount, and for any period of time, as the court may deem just and reasonable, based on the standard of living established during the marriage. In making an award of spousal support, the court is required to consider all of the following factors:

Standard of Living. The court will consider the standard of living of the parties during the marriage. If there is a high standard of living during marriage, the need for support is greater if the supported spouse will have difficulty maintaining that standard.

In considering the marital standard of living, the court may exercise its discretion by differentiating between a couple ending a brief marriage in which the standard of living was determined by the other spouse's separate property wealth and that of a couple ending a long-term marriage in which the couple developed a standard of living together.

Earning Capacity. The court must consider the extent to which the earning capacity of each spouse is sufficient to maintain the standard of living established during the marriage.

Education or Training Contributions. The court must consider the extent to which the supported spouse contributed to the attainment of education, training, a career position, or a license by the other spouse. Contributions are not limited to direct educational expenses, but include the payment by a working spouse of the ordinary living expenses of the marriage during the period when the other spouse is pursuing studies.

Ability to Pay. The court must consider the supporting spouse's ability to pay.

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