Sonoma County Lawyer Blog

NACBA Petitions Bankruptcy Court For Global Consumer Relief

Fri, 18 May 2012 18:00:00 -0800

In response to the recent Chapter 11 bankruptcy filing by ResCap, the mortgage arm of Ally Financial, formerly known as GMAC Mortgage, NACBA will be seeking global relief from the automatic stay to allow consumers in bankruptcy cases of their own to bring actions in those cases related to ResCap/Ally/GMAC claims. NACBA is committed to quickly obtaining the broadest and most efficient relief from the stay as possible, so that consumers and their attorneys can continue to bring lien-strip actions, objections to claim, and other actions in bankruptcy cases, without having to individually seek permission from the bankruptcy court in New York. NACBA is both working with the U.S. Trustee and retaining counsel to bring appropriate motions.

This will benefit any debtor who is in bankruptcy and has a mortgage from Ally Financial or GMAC Mortgage. This way debtors will still be able to obtain all the benefits of bankruptcy without any additional work or attorney fees.

The Law Offices of James V. Sansone assists individuals file for bankruptcy protection under the United States Bankruptcy Code and assists creditors to protect their rights when a bankruptcy is filed. 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.

Does My Child Have to Be Living With Me To Get Child Support

Tue, 08 May 2012 08:00:00 -0800

While yesterday in court the judge disagreed with me, in my opinion California law does not make this a prerequisite.

One component of the uniform guideline formula is the "H" factor, which represents the "approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent." Thus, the only relevant argument for the higher wage earner to make is that he, or she, has primary responsibility during the time at issue

The courts have considered cases of disabled adult children in a care home, children in school or daycare, and even a child in boarding school held in each that it is proper to credit the custodial parent with the parenting time. The courts focus on "primary physical responsibility" not actual physical custody or presence - adult disabled child in care home (In re Marriage of Drake (1997) 53 Cal. App. 4th 1139, 1160).

Daycare-"It is the custodial spouse who, after all, has the burden of finding, arranging and fronting the money for appropriate day care, who must deliver and pick up the child, and whose workday will be interrupted if there are any medical or other emergencies" (In re Marriage of Whealon, 53 Cal. App. 4th 132.)

In summary, according to In re Marriage of DaSilva, (2004) 119 Cal. App. 4th 1030, if a parent desires credit for time the child is not physically with him or her, then the parent has the burden of producing admissible evidence demonstrating he or she is primarily responsible for that child during those challenged times. Relevant factors include: (1) who pays for transportation or who transports the child; (2) who is designated to respond to medical or other emergencies; (3) who is responsible for paying tuition (if any) or incidental school expenses; and (4) who participates in school activities, fundraisers, or other school-related functions.

In short, just because your child does not live with you does not necessarily mean you can't get child support. However, I may need to file a Writ to get this point across.

The Law Offices of James V. Sansone assists individuals in child custody disputes and other family law issues throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.

Domestic Partnership and Same-Sex Marriage Legislation Change

Tue, 24 Apr 2012 08:00:00 -0800

Legislation amends Family Code 297 and 2320, and add Family code 297.1 and 298.7 to remove the requirement that domestic partners have a common residence to register, permits establishment of a confidential domestic partnership, and permits same-sex spouses who married in California to petition for dissolution in California without the parties meeting regular residency requirements if neither spouse resides in a jurisdiction that will dissolve the marriage.

Miss a 15-Day Window, No Rent is Due To Santa Rosa Landlords

Tue, 17 Apr 2012 08:00:00 -0800

The California Apartment Association (CAA) is opposing Assembly Bill 1953 which says that if a new owner or property manager fails within 15 days to provide notice to the tenant of the new name, telephone number, and address of the person or entity to whom rent payments shall now be made, waives any rent accrued prior to giving that notice.

The bill is sponsored by the San Francisco tenant's rights group, Tenants Together. Tenants Together claims that some owners don't tell tenants where to pay the rent and then they intentionally wait months for the rent and then they finally get around to serving the tenant with a 3-day notice, at a time when tenants have already spent their rent money and can't pay.

But CAA disagrees and points out that a number of years ago, this issue was addressed in statute. The law requires the property owner to put specific information in the Notices to Pay Rent or Quit. Those notices must include information about where rent payments are to be made and the specific times that the owner or the agent is available to receive the rent. A tenant who claims he or she didn't know where the rent was to be paid or whether it was even due and owing, and they thereafter spent the rent money, is simply not logical.

Prospective Tenants and Screening Fees: What An Owner Can And Cannot Do

Tue, 10 Apr 2012 08:00:00 -0800

The amount of the screening fee cannot be greater than the actual out-of-pocket costs of gathering information concerning the applicant, including, but not limited to:

1. The cost of using a tenant screening service or a consumer credit reporting service, and
2. The reasonable value of time spent by the owner or his or her agent to obtain the information.

The initial law provided that in no case, however, can the amount of the application fee charged by the owner be greater than $30 per applicant. This fee may be adjusted annually by the owner commensurate with an increase in the Consumer Price Index. As of December 2011, the adjusted rate is $43.54.

Unless the applicant agrees in writing, the owner cannot charge a fee when he or she knows or should have known that no rental unit is available at that time or will be available within a reasonable period of time.

The owner must provide the applicant with a receipt for the fee paid by the applicant. The receipt must itemize the out-of-pocket expenses and the time spent by the owner or his/her employees to obtain and process the information.

If the owner does not perform a reference check or does not obtain a credit report, the owner must return any amount of the fee that is not used.

If a fee is paid and if a request is made by the applicant, the owner must provide a copy of the credit report to the applicant.

US Supreme Court May Hear Case That Could Potentially Outlaw Rent Control

Wed, 28 Mar 2012 11:34:28 -0800

The U.S. Supreme Court may be prepared to hear a case that could potentially outlaw rent control. New York City landlord James Harmon contends the City's rent control law constitutes a physical taking of property in violation of the Fifth Amendment. The Court has not yet announced whether it will hear the case but has asked the state and city of New York to respond to Harmon's argument.

Harmon, 68, lives on Manhattan's Upper West Side in a five-story brownstone that has been in his family since his grandfather bought it in 1949. In 1969, the building became subject to New York City's Rent Stabilization Law, which caps the percentage that a landlord may raise rents each year.

By the time Harmon and his wife took full ownership of the brownstone in 2005, three of the six units were renting at rates that were 59 percent below-market to tenants that Harmon claims did not need the discount.

Harmon argues that he and his wife effectively have been financing the approximately $1500 monthly mortgage payments on the Long Island home of one of their rent stabilized tenants who pays $951.22 monthly rent. According to his petition, Harmon has spent two years and more than $30,000 in legal fees trying to recover possession of one rent-stabilized apartment for one of his grandchildren.

The U.S. Supreme Court now wants to review records on this case from two lower courts that previously rejected Harmon's petition and may decide to hear arguments some time before October of this year.

For further information on this case and on rent control in general, use the links below.

Washington Post Article

Wall Street Journal Article

The Law Offices of James V. Sansone is located in Santa Rosa, California and litigates numerous landlord tenant disputes including evictions, contract and lease disputes, evictions after foreclosure, and problem 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.

New Bills That Will Impact Santa Rosa Landlords And Tenants

Tue, 20 Mar 2012 08:00:00 -0800

According to CAA, in the last weeks of February, California lawmakers introduced hundreds of new bills that would impact the rental housing industry, here is a look at what CAA has identified so far.

AB 1610 - Accessibility - This bill would establish notice requirements for an alleged aggrieved party to follow before bringing an action against a business for an alleged violation of access rights of a disabled individual. The bill would require that party to provide specified notice to the owner of the property, agent, or other responsible party where the alleged violation occurred. The bill would require that owner, agent, or other responsible party to respond within 30 days with a description of the improvements to be made or with a rebuttal to the allegations. If that owner, agent, or other responsible party elects to fix the alleged violation, the bill would provide 120 days to do so.

AB 1726 - Pools - This bill would require an apartment building with a swimming pool to employ at least one qualified pool operator, as defined, and to maintain and conspicuously post a current certificate of each qualified pool operator employed by the swimming pool owner. This bill would require originals or copies of the certificate or documentation of each qualified pool operator employed by the site to be available onsite for inspection by a local enforcement agency. It also would require every pool operator of a public swimming pool to be a qualified pool operator, and to take a pool operator training course and examination, as specified, approved by a local enforcement agency. This bill would require a pool operator training course to be registered and approved by a local enforcement agency, and would allow the enforcement agency to charge a registration fee, as specified.

Is There A Remedy For The CA State Court's Excessive Case Load

Tue, 13 Mar 2012 08:00:00 -0800

Many people I speak to feel that justice is not done in state court. Their concern is not that the state courts don't work hard and try, it's simply a lack of resources and a heavy case load. So, is there a legal remedy for this in federal court, the 9th Circuit has held NO.

In, E.T. v. Cantil-Sakauye, the court held that a federal court properly abstained from considering foster children's claims challenging the "crushing and unlawful caseloads" of state dependency courts where the remedy sought would necessarily require that the court intrude upon the state's administration of its court system.

E.T. and several other minor foster children filed suit on behalf of themselves and a proposed class of some 5,100 others in Sacramento County. They alleged that "crushing and unlawful caseloads" frustrated the ability of local dependency courts to fairly and adequately hear their cases, and likewise stymied the ability of court-appointed counsel to provide them effective assistance.

The court of appeals observed that pursuant to federal constitutional limitations on the federal government, federal courts may not entertain actions that seek to impose an ongoing federal audit of state proceedings.

Rejected Residential Lease Was Not Terminated In Bankruptcy

Tue, 06 Mar 2012 08:00:23 -0800

This dispute arose in the bankruptcy court when the debtors defaulted on the terms of their prepetition lease, which was terminated as a result of it being deemed rejected.
These Chapter 7 debtors filed for bankruptcy 10 days after signing an apartment lease. They did not schedule the landlord as a creditor. They did not disclose the lease on Schedule G. Pursuant to Section 365, the lease was deemed rejected 60 days postpetition because the trustee did not assume or reject it. Two months after the debtors received their discharge, the debtors stopped paying their rent. The landlord sued the debtors, obtaining a judgment for $8,929 for past due rent. The debtors asked for reconsideration on the basis that any rent obligation was discharged in their Chapter 7 bankruptcy.

The court was not persuaded by the debtors' arguments. The court ruled that the landlord's rent claim was not a claim for damages resulting from termination of the lease agreement upon rejection. The deemed rejection of the lease resulted in a prepetition breach under section 365(g)(1). However, the court reasoned that a breach of a lease does not result in the termination of a lease. If the parties treat the lease as remaining in effect, then the lease continues in force. "If there is a future breach of the lease, the resulting claim does not arise from the rejection of the lease but from the tenant's subsequent default, and the lease is than subject to enforcement under applicable law," the court said.

If you are a landlord attempting to evict a tenant who has filed for bankruptcy or a tenant who needs to file bankruptcy we can help. The Law Offices of James V. Sansone assists individuals with landlord tenant disputes, including evictions, and file for bankruptcy protection under the United States Bankruptcy Code. 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.

BAPCPA Drove Up Bankruptcy Cost For No Benefit?

Tue, 28 Feb 2012 08:00:00 -0800

The changes made to the Bankruptcy Code in 2005 significantly increased the cost of filing for bankruptcy for consumer debtors without producing a statistically significant increase in creditor recoveries, according to a recently completed study funded by the American Bankruptcy Institute H.N. Schnelling Endowment Fund and the National Conference of Bankruptcy Judges Endowment for Education.

The study looked at what it cost a consumer to file for bankruptcy before and after the changes took effect. The study showed that the hardest hit were debtors who filed no asset Chapter 7 Bankruptcy Cases, with an increased cost of approximately 51 percent.

In Chapter 13 cases, the TDAC increased by 24 percent dismissed cases and by 27 percent in cases where the debtor received a discharge.

"It takes more skill and experienced to responsibly and professionally represent consumer debtors--especially in this economic climate--than it used to. "Moreover, the system is less tolerant of mistakes and yet there are so many more opportunities presented by BAPCPA for even seasoned attorneys to make errors. Without a detailed understanding of how to make the system work, the temptation is there for lawyers to 'cut corners' in order to minimize time spent on a client's case, or conversely, to spend so much time on a case that the legal fee exceeds what an insolvent client can reasonable afford.

Efficiency coupled with a high level of skill, while important to every area of law practice, is crucial to the success of a consumer bankruptcy practice. Best practices' for consumer bankruptcy lawyers requires finding a balance between comprehensively addressing a financially distressed client's interests, and doing so in a time sensitive and efficient manner", the report stated.

The Law Offices of James V. Sansone assists individuals file for bankruptcy protection under the United States Bankruptcy Code. 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.

Regular Monitored Visits Are Insufficient To Establish The Parent-Child Relationship Exception For Adoption

Tue, 21 Feb 2012 08:00:00 -0800

In a previous blog post I wrote about the process of terminating a parent's Parental Rights.

To summarize, 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.

A common defense to termination is that the parent whose rights are to be terminated has a sufficient bond with the child which would make termination not in the best interest of the child or children. However, now it appears that regular monitored visits are insufficient to establish a parent-child relationship.

The Student Loan Debt Bomb: America's Next Mortgage Economic Crisis

Tue, 14 Feb 2012 08:00:00 -0800

The National Association of Consumer Bankruptcy Attorneys (NACBA) prepared a report regarding the dischargeability of student loans in the bankruptcy court. I have summarized the report below, but click here to review the entire report .

According to the NACBA, Americans now owe more on student loans than on credit cards. The amount of student borrowing crossed the $100 billion threshold for the first time in 2010 and total outstanding loans and exceeded $1 trillion for the first time last year. The reason: Students and workers seeking retraining are borrowing extraordinary amounts of money through federal and private loan programs to help cover the rising cost of college and training. In many cases, parents responsible for the student loans are in or near retirement years and facing repayment demands.

How big is the danger to the U.S. economy? "Evidence is mounting that student loans could be the next trouble spot for lenders," said Dr. Andrew Jennings, chief analytics officer at FICO and head of FICO Labs.

With rising debt comes increased risk, both to borrowers and to the economy in general. Even in the best of economic times when jobs are plentiful, young people with considerable debt burdens end up delaying life-cycle events such as buying a car, purchasing a home, getting married and having children. Piling up student loans in middle age is even more troublesome. Aside from the simple truth that there is less time to earn back the money, it also means facing retirement years still deeply in debt. And, parents who take out loans for children or co-sign loans will find those loans more difficult to pay as they stop working and their incomes decline.

Update on NACBA's Principal Paydown Plan

Tue, 07 Feb 2012 08:00:00 -0800

According to the National Association of Consumer Bankruptcy Attorneys (NACBA), the proposed principal paydown plan has hit a road block.

According to an e-mail update issued by the NACBA, NACBA's Principal Paydown Plan to help underwater homeowners in chapter 13 bankruptcy avoid foreclosure, has been endorsed by a substantial number of Members of Congress who in turn have pushed for action by the Federal Housing Finance Agency (FHFA) to implement the plan. In a series of private meetings and in letters to FHFA, Senators and Members of Congress have asked the FHFA to use its authority over Fannie Mae and Freddie Mac to require them to agree to the Principal Paydown Plan when proposed by a homeowner trying to save a home in chapter 13 bankruptcy.

Despite FHFA Director DeMarco's initial positive comments about the Principal Paydown Plan, which he said struck him as "being responsible," and a "credible way to address the crisis while recognizing various interests mortgaged properties," he recently wrote to Congress informing them that the agency would not be implementing the Principal Paydown Plan. FHFA concluded that few GSE borrowers have filed for chapter 13 bankruptcy and are underwater and therefore the proposal would not be all that helpful. They did, however, commit to doing what they can to help eligible borrowers in bankruptcy get the HAMP modifications they qualify for.

While the FHFA response is disappointing and inadequate, and we believe wrong, we are gratified that the many Members of Congress who have pushed for this solution continue to be engaged and are looking for ways to get the Principal Paydown Plan implemented despite the FHFA's position. These Members of Congress recognize, as so many of us do, that the foreclosure crisis is not going away anytime soon and so long as it continues, the nation will not enjoy the kind of recovery that is needed to stabilize the economy and get people back to work.

Post-Separation Disability Benefits Are Not Community Property

Thu, 02 Feb 2012 17:28:27 -0800

In the United States there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Puerto Rico allows property to be owned as community property also as do several Indian jurisdictions. Alaska is an opt-in community property state; property is separate property unless both parties agree to make it community property through a community property agreement or a community property trust.

The state of California considers any property acquired during a valid marriage by a husband or wife community property. Sections 760 and 771 of the California Family Code outline the state law pertaining to community property.

IRMO Walker, Ralph and Elena married in 1993. They separated in January 2008, and, in March 2008, Elena filed a petition for legal separation. Ralph was 47 years old at the time of their separation. He had worked as a public school teacher until January 2008, when he left his employment due to a disability. Ralph has been a member of CalSTRS since 1986, and he had just under 20 years of CalSTRS service credit when he left his employment.

Ralph had applied for a CalSTRS disability allowance after the couple separated, and CalSTRS granted his application retroactive to December 2008.

In August 2009, the court entered a "STIPULATION AND ORDER" under which the parties agreed to "enter into a Domestic Relations Order (DRO) regarding Respondent's right to receive disability benefits from CalSTRS.

After several legal challenges to the characterization of this asset, the court found that his CalSTRS disability benefits were not his separate property.

US Supreme Court Holds That Law Enforcement Need A Warrant Before GPS Tracking Can Be Used

Tue, 24 Jan 2012 20:34:17 -0800

In US vs. Jones, the US Supreme Court was asked to decide whether the attachment of a Global Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

In a unanimous decision, the Supreme Court ruled that police cannot attach a GPS device to a criminal suspect's car to track their movements without first obtaining a search warrant.

While the Government contended that no "search" occurred, the Court thought differently. It is beyond dispute that a vehicle is an "effect" as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977). Based on this, the Court reasoned that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a "search."

Associate Justice Antonin Scalia said that the government's installation of a GPS device, and its use to monitor a vehicle's movements, constitutes a search, meaning that a warrant is required.

"By attaching the device to the Jeep" that Jones was using, "officers encroached on a protected area," Scalia wrote.

This is probably not the end of these types of cases making their way to the US Supreme Court because the court did not rule on whether the exact search was reasonable, which means even if the Fourth Amendment applies in cases like this, it's possible that the use of GPS devices may be considered acceptable in some circumstances.