June 2011 Archives

Can My Parental Rights Be Involuntarily Terminated-Santa Rosa Family Law

Child_Custody_2.jpgMost people I discuss this topic with are surprised to learn that the answer is yes. My office has handled several of these types of cases throughout Sonoma County and Mendocino County.

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.

All of my cases were brought under the factual situation described in option three. There are, unfortunately, many parents who leave their child or children in the custody of the other parent and fall off the face of the earth for periods over one year and fail to provide support or communicate with their child. Under the law this is abandonment and your parental rights can be terminated.

Continue reading "Can My Parental Rights Be Involuntarily Terminated-Santa Rosa Family Law " »

Can My Santa Rosa Divorce Be Uncontested?

uncontested-divorce2.jpgMany proceedings for dissolution and legal separation end up as uncontested proceedings. This is probably the result of the fact that California is a no fault state. It may also reflect growing movements to remove the adversarial hostilities from family law proceedings, and the growing awareness that no one "wins" a family law dispute. Anyway, if the parties are able to agree on custody, support, and property issues without the necessity of a contested trial their dissolution will be "uncontested." Decreasing the number of contested proceedings reduces the strife involved in proceedings for termination of a marriage and substantially reduces the expense otherwise involved in a dissolution proceeding.

Don't be easily misled by the label "uncontested." It does not mean "free to do as you please." It often means simply that an express agreement exists, express or implied, with the other party to act within a narrow range of agreed behavior. Within that range, the other side simply will stand by and take no action. What uncontested often means is that people are able to reach settlement together outside of structured court battlegrounds; not simply that matters are not contested.

Proceedings may be uncontested if the parties stipulate, in writing or orally before the court, for settlement of the case or if the respondent has taken no steps to participate in the proceedings, and the matter must go forward in his or her total absence by default.

Continue reading "Can My Santa Rosa Divorce Be Uncontested?" »

Santa Rosa Above Median Income Debtors With No Disposable Income May Propose A 36 Month Chapter 13 Bankruptcy Repayment Plan

chapter-13-bankruptcy-foreclosure.jpgIn the case of David and Candice Henderson, the above median income Chapter 13 debtors proposed a 36-month plan because according to the Means Test, Form 22C, they had negative disposable income. The bankruptcy trustee object to confirmation of the Chapter 13 Plan on the theory that the debtors were required to propose a 60 month repayment plan, since their household income was above the applicable median income for a family their size.

The case bankruptcy attorneys rely on is the Kagenveama case which holds that a debtor with positive projected disposable income must pay all of his projected disposable income to unsecured creditors for a period of 5 years. The court went on to say that if the debtor does not have any projected disposable income the 5 year requirement does not apply.

The trustee argued that "Kagenveama" no longer was controlling because of the holding of Hamilton vs. Lanning, which held that the court could look forward when determining if a debtor had sufficient disposable income available to creditors notwithstanding the results of the Means Test.

Continue reading "Santa Rosa Above Median Income Debtors With No Disposable Income May Propose A 36 Month Chapter 13 Bankruptcy Repayment Plan" »

Means Test Is Not Conclusive On Abuse Based On An Ability To Pay

4fa3d9ab1436bc3509fe636ad1819aac.jpgThe Means Test's presumption of abuse is simply that, a presumption. The fact that a debtor's case does not give rise to the presumption does not prevent a court from ruling that it would be an abuse of Chapter 7 Bankruptcy to grant a discharge based on the debtor's ability to repay his debts.

In Calhoun vs. US Trustee, No. 09-1646 (4th Cir. 05/03/11), the debtors were husband and wife and they filed a joint voluntary bankruptcy petition under chapter 7 of the Bankruptcy Code.

According to their Means Test, the debtors had negligible disposable income. Nevertheless, the United States Trustee filed a motion to dismiss the case for abuse of chapter 7. The court granted the motion. The court held that the debtors' ability to make a substantial payment to their creditors was established by testimony and Schedules I and J in which the debtors admitted to $ 133 per month of disposable income and then improperly subtracted Social Security income, shielding it from creditors.

Continue reading "Means Test Is Not Conclusive On Abuse Based On An Ability To Pay" »

Bankruptcy Court For The Central District of California Holds That Same Sex Married Couple Can File A Joint Bankruptcy Petition

DOMA_1.jpgAccording to the court, the Defense of Marriage Act ("DOMA") is unconstitutional insofar as it bars same-sex couples who are legally married under state law from filing joint bankruptcy petitions. This is an important legal development since under current bankruptcy law only heterosexual couples who are legally married under state law can file a joint bankruptcy petition.

While a February 23, 2011 order from President Obama prevents the Justice Department from enforcing DOMA, the Department of Justice, through the US Trustee's Office, attempted to enforce DOMA in the case of Gene Douglas Balas and Carlos A. Morales, Case No. 2:11-bk-17831 TD.

The impact of this decision, if followed in other courts, would allow same-sex married couples to file joint bankruptcy petitions. This would be a substantial cost and time saver for individuals, as under the current law, each partner is required to file a separate bankruptcy petition, pay two separate fillings fees, and have their cases consolidated subsequent to their filing. This would also create an advantage in chapter 13 filings since the parties would only be subject to one Chapter 13 plan as opposed to two chapter 13 plans, since two plans in one household can create serious problems in allocating household income between the two cases.

Continue reading "Bankruptcy Court For The Central District of California Holds That Same Sex Married Couple Can File A Joint Bankruptcy Petition" »

Grounds For The Award Of Attorney's Fees In A Santa Rosa Divorce

divorce-attorney-fees.jpgCalifornia's public policy is to encourage finality in marital dissolutions by "providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation." This policy recognizes the financial and emotional costs of divorce proceedings. In addition, the policy ensures that the economically disadvantaged spouse has both adequate finances to pursue the matter and access to the courts: "primary cornerstones to the concept of fundamental fairness under the law." Moreover, under California public policy, a spouse without sufficient funds should not be prevented from litigating when the other spouse is able to pay.

Family Code ยง 2032 mandates consideration of the parties' relative circumstances and authorizes a need-based fee award even though the applicant spouse might be able to pay his or her attorney without financial assistance. The other party's superior ability to pay may itself make a fees and costs award "just and reasonable" (see Marriage of O'Connor.)

Continue reading "Grounds For The Award Of Attorney's Fees In A Santa Rosa Divorce" »

Real Estate Broker's Debt Dischargeable Because A Real Estate Licensee Does Not Meet The Fiduciary Capacity Requirements Under the Bankruptcy Code

bb4d820dd7a0a4b6fdb0e010.L._SL500_AA300_.jpgIn the case at bar, the debtor acted as real estate broker for a purchaser in a transaction that filed to close. The purchaser sued the debtor in state court. The jury awarded the purchaser $356,000 in damages, finding, inter alia, the debtor breached her fiduciary duty. Subsequent to the judgment, the debtor filed a voluntary Chapter 7 bankruptcy petition. In response, the judgment creditor filed a complaint in bankruptcy court to enforce its state court judgment as non-dischargeable as a debt for fraud while acting in a fiduciary capacity.

The 9th Circuit Court of Appeals, In re Cantrell, held that a California real estate licensee does not meet the fiduciary capacity requirement of Section 523(a)(4) solely based on her status as a real estate licensee because general fiduciary obligations are not sufficient to fulfill the fiduciary capacity requirement in the absence of a statutory, express, or technical trust. In this case, since the debtor never held any property in trust for the purchaser, the court found that the debtor could not have acted in a "fiduciary capacity" within the meaning of that terms under Section 523(a)(4).

If you are a creditor and you believe a debt your are owed may be non-dischargeable you should consult with an experienced Santa Rosa bankruptcy attorney. Only an experienced bankruptcy lawyer can properly assess your case and inform you of all your options under the United States Bankruptcy Code.

The Law Offices of James V. Sansone is located in Santa Rosa, California and helps creditors protect their rights 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.

California Legislative Legal Updated Affecting Santa Rosa Landlords

rental property.jpgAs reported by the California Apartment Association, sue your landlord bill, (AB 934), fails passage in the state assembly.

AB 934 would have allowed a tenant to sue a rental property owner based on statements made by the owner in an unlawful detainer action. Among other things, AB 934 would discourage property owners and managers (out of fear of being sued) from protecting their other residents and property by promptly serving notices to tenants who violate their leases, disturb or threaten other tenants, damage the property, or violate the law.

I agree with CAA's commentary that AB 934 is unnecessary and unfairly targets the rental housing industry, removing it from long-standing and important court protections (known as litigation privilege) enjoyed by every other person and business in California.

Also good news to Santa Rosa landlords, AB 265 has been withdrawn from consideration for this year's legislative session, however it will probably be back. As initially introduced, the bill proposed to change California's 3 Day Notice to Pay Rent or Quit law to a 14 Day Notice to Pay Rent or Quit.

The Law Offices of James V. Sansone offers a full range of landlord tenant legal services. We are located in Santa Rosa, California and serve clients 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.

Arnold Schwarzenegger to Be Sued by Mistress' Ex?

020410_paternity_2.jpgThe concept of paternity under California Law is something former Governor Arnold Schwarzenegger should pay close attention to since the ex-husband of Mildred Patricia Baena, Arnold Schwarzenegger's former housekeeper and lover, says he plans to sue the former governor of California. Rogelio Baena told a Colombian magazine on Sunday that his ex wife changed the birth certificate of her son to name Mr. Baena, not Schwarzenegger, as the now 13-year-old boy's dad. Mrs. Baena filed for divorce shortly after she gave birth to the son Schwarzenegger fathered, and Mr. Baena claims he didn't know he wasn't the boy's father until the scandal broke earlier this month.

The concept of illegitimacy was abolished in California on January 1, 1976, when the original Uniform Parentage Act ("UPA") was adopted. The current version of the Uniform Parentage Act sets forth a procedure for determining the existence or nonexistence of the parent-child relationship and replaces illegitimacy with "presumptions of paternity."

Continue reading "Arnold Schwarzenegger to Be Sued by Mistress' Ex? " »