July 2011 Archives

Divorced Dad's Blog Becomes A Test for the First Amendment

images.jpgA Pennsylvania man is claiming a judge violated his freedom of speech and his right to due process by ordering him to shut down thepsychoexwife.com, a blog he began in 2007 to discuss his bitter divorce and child custody battle.

Back in November 2010, I wrote a blog entry entitled Social Networking Sites Such as Facebook and MySpace Can Be Your Ex Partner's Worst Nightmare. This latest on-line blog appears to be the next step in using a person's on-line statements or persona against them.

In any case I am retained on, especially family law, the first thing I do is run an on-line search in an attempt to locate anything that can possibly be used against the opposing party. Time and time again, this has proven to be an invaluable tool I use to attack the creditability of the opposing party. As an example, I am currently involved in a child support dispute case wherein the opposing party, the mother, has an on-line employment profile where she calls herself a "liar" and declares that the cause that is most important to her is to "increase alimony two fold." Win, lose, or draw, this is a tool to attack her creditability, since a large part of her claim heavily rests on her word, I hope to show her word is worthless.

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Denial Of Employment By Private Employer Does Not Violate the Bankruptcy Code

jobs1.jpgSection 525(b) of the Bankruptcy Code does not prohibit private employers from denying employment to applicants based on their bankruptcy status. The 11th US Circuit Court of Appeals, in Myers vs. TooJay's Management Corp., held that a former Chapter 7 debtor had no claim against a restaurant that withdrew an employment offer solely because of the bankruptcy filing.

This holding goes against what many bankruptcy attorneys have been telling their clients for years. Section 525(a), which was enacted first, says "a government unit may not. . . deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title. . ." Section 525(b), which was added years later, says: "No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title. . ."

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Divorce 101 - Santa Rosa Divorce Attorney Explains The Basics

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Does Current Monthly Income Include Income Received But Not Derived Within The 6 Month Look Back Period?

Bankruptcy_Books.jpgWell, that depends on who you ask. In the case of Julianne Arnoux (Case Number: 09-04778-FLX), the United States Bankruptcy Court for the Eastern District of Washington held that income, within the 6 month look back period had to be earned as well as derived.

In Arnoux, supra, the trustee filed a motion and asked the Court to declare that the income listed on the debtor's Means Test was incorrect and to order her to enter a different amount, which would have made her an above median income debtor. The issue was whether the debtor had to include her final pay period in the income listed. The debtor argued that the final pay period was excluded because she did not actually receive that income during the applicable six month period. The trustee argued that the income was derived or earned during the statutory period and therefore had to be included.

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Santa Rosa Landlord's Can Rejoice, Gwendolyn Smith Loses Appeal Against Sebastopol Landlord Barbara Wilt

04321f6515309b3edf09adf750d9c76e.jpgThe good news is that the 1st District Court of Appeals dealt Gwendolyn Smith and her attorney Gary Levinson a loss. The bad news is that according to reports that have come into my office, Gwendolyn Smith is back in Sonoma County. Two callers reported to me that they saw her in Sebastopol living with a friend of hers who purports to be a yoga instructor. Landlords remember to perform background checks on your potential tenants.

Here is what the court of appeals had to say.

Defendant Gwendolyn Smith and her attorney failed to appear for trial in an unlawful detainer action. The trial court entered a default judgment. Defendant moved to set aside the default judgment under Code of Civil Procedure section 473. The trial court denied the motion, finding the failure to appear was part of a pattern of delaying tactics. Defendant contends she was entitled to relief.

We disagree and affirm.

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What Can I Do If I No Longer Can Afford My Chapter 13 Plan Payment - Santa Rosa Bankruptcy

Chapter13-Bankruptcy.jpgChapter 13 debtors often encounter circumstances during the plan period which were unforeseen at the time of confirmation. Further persistent deterioration in a debtor's financial condition, loss of employment, or illness, after confirmation usually leaves only four courses of action open to the debtor. (1) The debtor may convert the case to chapter 7, (2) apply for a hardship discharge, (3) dismiss the case, or (4) modify the chapter 13 plan.

So what should you do? Contact your attorney immediately. Let your attorney know your circumstances have changed. Don't wait until you are two or three payments behind.

The modified plan is subject to all of the standards and requirements in the Code, including the Means Test and the limit on the plan term, which in no case may exceed five years. Subject to these strictures, almost any type of modification is permitted, including alteration of the amount or timing of the payments and alteration of distributions to particular creditors. The debtor may modify the plan to terminate at the time of modification if the modified plan meets plan confirmation requirements.

Once the modification is approved, the plan as modified becomes the plan. As such, it is binding on the debtor and all creditors and has the other effects of a confirmed chapter 13 plan.

If you are considering filing bankruptcy and are wondering where to turn, be sure to seek the advice of an experienced bankruptcy attorney. 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.

MERS Relief From Stay Denied Since It Had Not Established Legal Authority To Enforce Mortgage - Santa Rosa Bankruptcy

MERS-Foreclosure-300x195.jpgIn Pennsylvania, MERS filed a motion for relief from the automatic stay seeking permission to resume foreclosure proceedings against the debtor's residence, purportedly acting on behalf of its principal, to enforce the mortgage on the debtor's property. The debtor asserted that MERS had not established that it had the legal authority to enforce the mortgage and therefore, it lacked standing, or it was not a "party in interest" or it was not the "real party in interest." The court held that, on the evidence presented, MERS had not established that it was a party in interest entitled to seek relief from the automatic stay in order to prosecute a foreclosure action against the property. MERS had not presented sufficient evidence to permit a finding that it was either: (1) the holder of the mortgage, with the concomitant right to enforce it under state law or (2) an agent authorized by the holder of the mortgage to initiate court proceedings to enforce the mortgage on the holder's behalf.

Stay relief is available to a party in interest. To enforce a creditor's rights under a mortgage, courts have recognized that to have the "legally protected interest" that makes a party a "party in interest," the movant must be the party that has authority to enforce the mortgage under applicable nonbankruptcy law.

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Indigent Persons Subject To Civil Contempt Proceedings For Back Due Child Support Are Not Entitled To Appointment Of Counsel - Santa Rosa Family Law & Criminal Law

criminal-law1.jpgIn the case of Turner vs. Rodgers, a father was subjected to State civil contempt proceedings for failing to pay child support to mother. The father was incarcerated for 12 months he served without paying the past due child support. The Supreme Court of South Carolina held that the father was not entitled to appointed counsel in the proceedings.

On June 20, 2011 the United States Supreme Court agreed. The United States Supreme Court vacated the Supreme Court of South Carolina's ruling, holding that the father was denied due process, although due process did not automatically require the State to provide counsel in civil contempt proceedings to an indigent parent subject to a support order who faces incarceration. The right to counsel was limited based upon the parent's ability to pay, the equality of representation between the parties, and State procedural safeguards. In the father's case, counsel was warranted since the State did not provide clear notice that the father's ability to pay was the critical question and made no findings concerning his ability to pay.

Under current Sixth Amendment precedent, the Constitution guarantees a defendant the right to counsel in criminal cases and in "criminal contempt" cases. However, there is no such precedent over "civil contempt" cases. This case, while the Court did vacate the State Court's ruling, does not change this rule.

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