The Law Offices of Roman P. Mosqueda
"How The Law Can Work For You"
Wednesday, May 24, 2017
New Website - www.MosquedaLegal.com
Our old website under the name www.Mosquedalaw.com has moved our new webpage at www.MosquedaLegal.com
It is newer and more upto date than our old site!
If you have any questions you can reach us in our Los Angeles Office at (213) 252 - 9481.
-Mosqueda Law Office Staff
Friday, August 3, 2012
How Bankruptcy Affects Short Sale (August 2012)
Many of our clients ask us: How does bankruptcy affect the short sale on my property?
The filing of a bankruptcy petition (Ch.7 or 13) results in an automatic stay of collection, foreclosure, and other proceedings by creditors against the debtor under bankruptcy protection.This article will discuss how the bankruptcy automatic stay affects short sale.
When is an automatic stay issued? An automatic stay is filed by a creditor and granted by the Bankruptcy Court, unless the court grants relief from the stay or case is closed or dismissed. The case is usually closed with a discharge order under Chapter 7 or completion of the confirmed plan of payment under Chapter 13.
In regards to a short sale, banks normally stop considering short sale of a property under foreclosure once an automatic stay is in place by the filing of a bankruptcy petition, for fear of violating the stay. However, bankruptcy in short sale is a special case.
Automatic stay should not affect bankruptcy: Because short sale of a property without equity is initiated by the debtor to avoid foreclosure, the automatic stay, which is for the debtor's protection, should not be used against the debtor. For banks, short sale is already a better option than foreclosure (that is why they even do them in the first place).
If banks refuse to proceed with the short sale during the process of the bankruptcy, the debtor who has stopped making monthly payments prolongs his stay in the property until the bankruptcy proceeding is terminated, or relief from automatic stay is obtained from the Bankruptcy court.
So, to block a short sale due to bankruptcy does not make much sense on their part. Banks also know that the summer months and early fall is a hot market for real estate and it is better to allow the short sale and move the property quickly than to deny the short sale and sit on the property longer without collecting payments. The process of short sale should proceed even under bankruptcy and automatic stay.
Written by,
Roman P. Mosqueda, Esq.
Attorney Mosqueda is a practicing Attorney and Real Estate Broker in the Los Angeles area. He has been practicing law in Southern California since 1985. For more information on his office visit his website at: www.MosquedaLaw.com
When is an automatic stay issued? An automatic stay is filed by a creditor and granted by the Bankruptcy Court, unless the court grants relief from the stay or case is closed or dismissed. The case is usually closed with a discharge order under Chapter 7 or completion of the confirmed plan of payment under Chapter 13.
In regards to a short sale, banks normally stop considering short sale of a property under foreclosure once an automatic stay is in place by the filing of a bankruptcy petition, for fear of violating the stay. However, bankruptcy in short sale is a special case.
Automatic stay should not affect bankruptcy: Because short sale of a property without equity is initiated by the debtor to avoid foreclosure, the automatic stay, which is for the debtor's protection, should not be used against the debtor. For banks, short sale is already a better option than foreclosure (that is why they even do them in the first place).
If banks refuse to proceed with the short sale during the process of the bankruptcy, the debtor who has stopped making monthly payments prolongs his stay in the property until the bankruptcy proceeding is terminated, or relief from automatic stay is obtained from the Bankruptcy court.
So, to block a short sale due to bankruptcy does not make much sense on their part. Banks also know that the summer months and early fall is a hot market for real estate and it is better to allow the short sale and move the property quickly than to deny the short sale and sit on the property longer without collecting payments. The process of short sale should proceed even under bankruptcy and automatic stay.
Written by,
Roman P. Mosqueda, Esq.
Attorney Mosqueda is a practicing Attorney and Real Estate Broker in the Los Angeles area. He has been practicing law in Southern California since 1985. For more information on his office visit his website at: www.MosquedaLaw.com
Summer Time Civil Litigation: 5 Ways to Avoid Civil Litigation
Civil Litigation in Los Angeles is on the arise again. Most businesses tend to dissolve in the summer months. Here are some tips on how to avoid this stressful and expensive scenario:
1. Have your contracts reviewed by an attorney: This is especially if your attorney did not draft the original business agreement. Make sure you are protected should the business need to be dissolved. A bad dissolution can cost upwards of $40,000 in legal fees for the business owner. This does not even include other fees such as: personal representative, court fees, mediation fees, and your time spent. This summer we are offering a free initial consultation for business owners who want to review their contracts.
2. Make sure that you and your partner sit down together and discuss all your options should your business need to be dissolved: Strangely, many business owners do not plan for the sale and/or dissolution. There are many tools that can be used to help facilitate this issue: buyout clauses, buy-sell agreements, and other forms to planning necessary.
For Example, If one partner were to die, then the surviving-spouse would inherit the 50% share of the business. This also includes all of the business responsibilities the deceased had. Like check writing for example. If the spouse was not on hand to write checks, the business would come to a stand still. Another problem, would be that the spouse rescind her power to check write, and give the partner free reign to write checks without her approval. Neither of these situation are appealing and could easily destroy or cripple a business. A simple buy sell agreement could be in place to generate funds to "buy out" the surveying spouse and ensure the business transitions smoothly.
3. Make sure that all agreements are in writing and backed by legal paperwork. And you know where it is. This seems obvious, but you would be surprised on how often there is a lack of paperwork to support a case. Make sure everything is documented, and you have a safe and secure copy of it.
4. Pre-Litigation Mediation and Arbitration: If dissolution seems inevitable, attempt to settle out of court through Mediation or Arbitration. Parties agree to settle their disputes by mediation or arbitration by talking through their problems in-front of an objective third party. Mediation and arbitration is less expensive and less time consuming than going to trial.
5. Independent Audit of Books and Records: In most partnerships, one partner controls the books while the other takes a passive role. This scenario often leads to a dangerous situation. To solve this issue, most companies would benefit from an independent audit of the company's finances to make sure that no partner is taking advantage of the other.
Ryan Mosqueda
Legal Assistant
1. Have your contracts reviewed by an attorney: This is especially if your attorney did not draft the original business agreement. Make sure you are protected should the business need to be dissolved. A bad dissolution can cost upwards of $40,000 in legal fees for the business owner. This does not even include other fees such as: personal representative, court fees, mediation fees, and your time spent. This summer we are offering a free initial consultation for business owners who want to review their contracts.
2. Make sure that you and your partner sit down together and discuss all your options should your business need to be dissolved: Strangely, many business owners do not plan for the sale and/or dissolution. There are many tools that can be used to help facilitate this issue: buyout clauses, buy-sell agreements, and other forms to planning necessary.
For Example, If one partner were to die, then the surviving-spouse would inherit the 50% share of the business. This also includes all of the business responsibilities the deceased had. Like check writing for example. If the spouse was not on hand to write checks, the business would come to a stand still. Another problem, would be that the spouse rescind her power to check write, and give the partner free reign to write checks without her approval. Neither of these situation are appealing and could easily destroy or cripple a business. A simple buy sell agreement could be in place to generate funds to "buy out" the surveying spouse and ensure the business transitions smoothly.
3. Make sure that all agreements are in writing and backed by legal paperwork. And you know where it is. This seems obvious, but you would be surprised on how often there is a lack of paperwork to support a case. Make sure everything is documented, and you have a safe and secure copy of it.
4. Pre-Litigation Mediation and Arbitration: If dissolution seems inevitable, attempt to settle out of court through Mediation or Arbitration. Parties agree to settle their disputes by mediation or arbitration by talking through their problems in-front of an objective third party. Mediation and arbitration is less expensive and less time consuming than going to trial.
5. Independent Audit of Books and Records: In most partnerships, one partner controls the books while the other takes a passive role. This scenario often leads to a dangerous situation. To solve this issue, most companies would benefit from an independent audit of the company's finances to make sure that no partner is taking advantage of the other.
Ryan Mosqueda
Legal Assistant
Monday, February 27, 2012
USCIS APPROVES I-751 PETITION TO REMOVE CONDITIONS ON RESIDENCE OF AN ABANDONED FILIPINA
USCIS APPROVES I-751 PETITION
TO REMOVE CONDITIONS ON
RESIDENCE OF AN ABANDONED FILIPINA
By
Roman P. Mosqueda,
B.S., LL.B., LL.M., & S.J.D.
By Notice issued by the Los Angeles Field Office Director through on February 13, 2012, the I-751 Petition to Remove the Conditions on Residence of a Filipina, abandoned and divorced by a U.S.-citizen husband found at www.filipinocupid.com, was approved after interview.
This Author represents the Filipina client and personally appeared with her at her interview on February 13, 2012.
ISO Greg Watts found that she had entered into the marriage in good faith, but her marriage was terminated through divorce filed by her husband in Ohio, where she had lived with him for two years and three months.
From Meeting Via
Website To Marriage
In Columbus, Ohio:
The Filipina applicant for a waiver of a joint I-751 Petition, placed in removal proceedings on May 27, 2011, is a 28-year old native of Lanao del Norte, Philippines.
On or about October 2005, she found her prince charming, at www.filipinocupid.com. His profile stated that he had been divorced with two minor children and a Christian devoted to God.
Communication through e-mails ensued. He sent her $100.00 monthly through Western Union to defray chat bills because she was not working at that time.
On April 12, 2006, he flew to Manila and then to Dipolog City, where he was met by her and her sister. He was introduced to her parents and her family. He then proposed marriage. She accepted.
Two days later, he flew back to Ohio and started filing for a fiancée visa for her. She was subsequently issued a K-1 visa. They got married on March 17, 2007, in Columbus, Ohio; her two stepdaughters were her flower girls.
In June 2007, they bought a house and a car, and lived in Urbana, Ohio. She wanted a child of her own, only to be told by him that he had undergone vasectomy.
Marriage On The Rocks
And Abandonment In
The Philippines:
During the marriage, she was not working, taking care of him and her two young stepdaughters. He did not give her any money for her personal needs. Her sister in Michigan sent her money. She bought and sold clothes online.
On April 13, 2009, they visited with her parents in the Philippines and stayed there for two weeks. In May 2009, they filed the Joint Form I-751 Petition.
But on June 27, 2009, he convinced her to go with him back to the Philippines. He unceremoniously abandoned her at the Pearl Manila Hotel. He flew back to Ohio alone, with her green card and passport.
She obtained travel permit from the U.S. Embassy to travel to the United States. She e-mailed him for transportation money, but he said that he did not want her back.
She borrowed money from a cousin in California, and arrived in Los Angeles on August 18, 2009. She called him from Los Angeles, but he said that he is filing for divorce. He filed for dissolution of marriage, which was finalized on November 5, 2009, with a Judgment Entry and Decree of Divorce in Ohio.
Mixed marriages of spouses with different culture and background add more challenges to the success of a marital union in the United States.
(The Author, Roman P. Mosqueda, has published a book on marriage and its dissolution and several articles on immigration reliefs to unsuccessful marriages. He is a long-time member of AILA. Send e-mails to rpm_law@yahoo.com or call (213) 252-9481 for free consultation appointment, or visit www.mosquedalaw and EzineArticles.com to read his other articles.)
TO REMOVE CONDITIONS ON
RESIDENCE OF AN ABANDONED FILIPINA
By
Roman P. Mosqueda,
B.S., LL.B., LL.M., & S.J.D.
By Notice issued by the Los Angeles Field Office Director through on February 13, 2012, the I-751 Petition to Remove the Conditions on Residence of a Filipina, abandoned and divorced by a U.S.-citizen husband found at www.filipinocupid.com, was approved after interview.
This Author represents the Filipina client and personally appeared with her at her interview on February 13, 2012.
ISO Greg Watts found that she had entered into the marriage in good faith, but her marriage was terminated through divorce filed by her husband in Ohio, where she had lived with him for two years and three months.
From Meeting Via
Website To Marriage
In Columbus, Ohio:
The Filipina applicant for a waiver of a joint I-751 Petition, placed in removal proceedings on May 27, 2011, is a 28-year old native of Lanao del Norte, Philippines.
On or about October 2005, she found her prince charming, at www.filipinocupid.com. His profile stated that he had been divorced with two minor children and a Christian devoted to God.
Communication through e-mails ensued. He sent her $100.00 monthly through Western Union to defray chat bills because she was not working at that time.
On April 12, 2006, he flew to Manila and then to Dipolog City, where he was met by her and her sister. He was introduced to her parents and her family. He then proposed marriage. She accepted.
Two days later, he flew back to Ohio and started filing for a fiancée visa for her. She was subsequently issued a K-1 visa. They got married on March 17, 2007, in Columbus, Ohio; her two stepdaughters were her flower girls.
In June 2007, they bought a house and a car, and lived in Urbana, Ohio. She wanted a child of her own, only to be told by him that he had undergone vasectomy.
Marriage On The Rocks
And Abandonment In
The Philippines:
During the marriage, she was not working, taking care of him and her two young stepdaughters. He did not give her any money for her personal needs. Her sister in Michigan sent her money. She bought and sold clothes online.
On April 13, 2009, they visited with her parents in the Philippines and stayed there for two weeks. In May 2009, they filed the Joint Form I-751 Petition.
But on June 27, 2009, he convinced her to go with him back to the Philippines. He unceremoniously abandoned her at the Pearl Manila Hotel. He flew back to Ohio alone, with her green card and passport.
She obtained travel permit from the U.S. Embassy to travel to the United States. She e-mailed him for transportation money, but he said that he did not want her back.
She borrowed money from a cousin in California, and arrived in Los Angeles on August 18, 2009. She called him from Los Angeles, but he said that he is filing for divorce. He filed for dissolution of marriage, which was finalized on November 5, 2009, with a Judgment Entry and Decree of Divorce in Ohio.
Mixed marriages of spouses with different culture and background add more challenges to the success of a marital union in the United States.
(The Author, Roman P. Mosqueda, has published a book on marriage and its dissolution and several articles on immigration reliefs to unsuccessful marriages. He is a long-time member of AILA. Send e-mails to rpm_law@yahoo.com or call (213) 252-9481 for free consultation appointment, or visit www.mosquedalaw and EzineArticles.com to read his other articles.)
Friday, May 20, 2011
Filipino Immigration Attorney
Filipino Immigration Attorney
Immigration and Removal Proceedings
Immigration law is constantly changing. There are always new laws, new regulations, and new ways opening up for immigrants to become green card holders and citizens of the United States.
Here at the Law Offices of Roman P. Mosqueda, we prepare and perform all categories of Immigration Law from Green Cards to Removal Hearings, to Appeals.
To learn what steps you need to take, the first thing you should do is seek legal advice. Our office offers FREE Confidential Consultations where you can to talk to an attorney for 30 minutes to an hour regarding your situation. This is the perfect opportunity to have all your questions answered by an attorney and learn what steps you need to take to become a green card holder or citizen of the United States.
There is absolutely no charge and the consult is completely confidential. During consultation you will be able to explain your situation to us, and we will go over the various options open to you and recommend the best solution for your situation.
To set up an appointment, call us at (213) 252 - 9481.
The Law Offices of Roman P. Mosqueda has been handling Immigration cases and hearings for the last 25 years. Over the years, Attorney Mosqueda has represented thousands of clients with their Immigration needs and successfully represented them in Immigration court, Department of Homeland Security (CIS & ICE), Board of Immigration Appeals, and Federal Court of Appeals.
We have many: Filipino, Spanish, Thai, European, Cambodian, Korean, and Asian clients. We speak: English, Spanish, Filipino, and Cambodian.
We Handle All Immigration Cases including:
- Deportation / Removal Proceedings Hearings
- Immigration Forms (I-130, I-485, I-765, & More: {Full List of Forms})
- Student Visas
- Working Visas
- Fiancé Visas
- Investors Visas
- Immigration Appeals
- Criminal Cases with Immigration Consequences.
Worried about the cost?
We aim to make legal service affordable with:
* Low down payments
* Custom payment plans
* And we accept credit cards!
Have a quick question or would like to speak to the Attorney First? - No problem! Give us a call and we will be more than happy to answer your questions.
Know a family member or friend that would benefit from a FREE Immigration consultation? Feel free to bring them along to sit in and ask questions or sign them up for their very own FREE consultation.
For A Free Confidential
Consultation
Call: (213) 252 - 9481
Immigration and Removal Proceedings
Immigration law is constantly changing. There are always new laws, new regulations, and new ways opening up for immigrants to become green card holders and citizens of the United States.
Here at the Law Offices of Roman P. Mosqueda, we prepare and perform all categories of Immigration Law from Green Cards to Removal Hearings, to Appeals.
To learn what steps you need to take, the first thing you should do is seek legal advice. Our office offers FREE Confidential Consultations where you can to talk to an attorney for 30 minutes to an hour regarding your situation. This is the perfect opportunity to have all your questions answered by an attorney and learn what steps you need to take to become a green card holder or citizen of the United States.
There is absolutely no charge and the consult is completely confidential. During consultation you will be able to explain your situation to us, and we will go over the various options open to you and recommend the best solution for your situation.
To set up an appointment, call us at (213) 252 - 9481.
The Law Offices of Roman P. Mosqueda has been handling Immigration cases and hearings for the last 25 years. Over the years, Attorney Mosqueda has represented thousands of clients with their Immigration needs and successfully represented them in Immigration court, Department of Homeland Security (CIS & ICE), Board of Immigration Appeals, and Federal Court of Appeals.
We have many: Filipino, Spanish, Thai, European, Cambodian, Korean, and Asian clients. We speak: English, Spanish, Filipino, and Cambodian.
We Handle All Immigration Cases including:
- Deportation / Removal Proceedings Hearings
- Immigration Forms (I-130, I-485, I-765, & More: {Full List of Forms})
- Student Visas
- Working Visas
- Fiancé Visas
- Investors Visas
- Immigration Appeals
- Criminal Cases with Immigration Consequences.
Worried about the cost?
We aim to make legal service affordable with:
* Low down payments
* Custom payment plans
* And we accept credit cards!
Have a quick question or would like to speak to the Attorney First? - No problem! Give us a call and we will be more than happy to answer your questions.
Know a family member or friend that would benefit from a FREE Immigration consultation? Feel free to bring them along to sit in and ask questions or sign them up for their very own FREE consultation.
For A Free Confidential
Consultation
Call: (213) 252 - 9481
Thursday, March 24, 2011
Child Status protection Act (CSPA) for Derivative Children
Child Status Protection
Act (CSPA) for Derivative
Children
By:
Roman P. Mosqueda
B.S., LL.B., LL.M., & S.J.D.
Signed into law on August 6, 2002, the Child Status Protection Act (CSPA), PL 107-208, 116 Stat. 927, INA § 201 (8), address the problem of minor children who age out (turn 21 years of age) due to long processing delays and large backlogs.
It permits certain beneficiaries in family -based, employment-based and
diversity-based petitions, as well as in some humanitarians programs (refugees, asylees, Violence Against Woman Act) to retain classifications as a “child” despite reaching the age of 21.
In the context of an employments-based petition, the CSPA allows the time the Form I-140, Immigrant Petition for Alien Workers, was pending to be subtracted from beneficiary’s biological age at the time of immigrant visa availability on the approval date thereof, whichever is later. INA § 203 (h) (3).
Formula For Determining
CSPA Age of Derivative Children :
Section 3 of the CSPA provides the formula for determining the CSPA age of direct and derivative children who are beneficiaries of family and employment-based petitions, as fallows:
(1) Determine the age of the child at the time an immigrant visa number becomes available (priority date of labor certification application (LCA) or of Form I-140 exempted from LCA becomes current), or the Form I-140 approval date, whichever is later;
(2) Subtract from this biological age the number of days that the Form I-140 Immigrant Visa Petition was pending (from receipt date to approval date) to get the CSPA age; and
(3) The child must “seek to acquire” lawful permanent resident (LPR) status (adjustment or immigrant visa) within one year of the approval of the I-140 petition or the availability of the immigrant visa, whichever is later.
For example, if the Form I-140 was filed in 2004, when the derivative child of the beneficiary was 19 years of age, and the priority date of the LCA of Form I-140 became available at that time (2004), but the Form I-140 petition was pending for 4 years, the biological age of the child after 4 years is 23 years, but his or her CSPA age is still 19 years. So, he or she has not aged-out.
In effect the CSPA locks in the age of a child at an earlier date that his or her age at the time of adjudication of adjustment of status (Form I-485) in the United States or of the immigrant visa application (Form DS-230 Part I).
Meaning of “Seeks To
Acquire” LPR Status:
The third prong of the formula for the application of the CSPA to derivative children stated above is that the child must “seek to acquire” lawful permanent resident (LPR) status within one year of the approval of the petition or the availability of the immigrant visa, whichever is later, in order to obtain the benefits of the CSPA.
The date of immigrant availability is defined by the U.S. Citizenship and Immigration Services (USCIS) as the first day of the first month a visa in the appropriate category was listed as available in the Department of State Visa Bulletin.
As a statute of limitations, this one-year period within which to apply for LPR Status, as a filing deadline, has been interpreted by the Department of State as follows:
(1.) The date the derivative child (not his or hers parent) submits the Completed Application For Immigrant Visa And Alien Registration (Form DS-230, Part I) and its reaching in the immigrant visa system;
(2.) As for a “following to join” derivative child whose LPR parent is in the United States, the date the child seeks to acquire LPR status for the one year filing deadline for the immigrant visa application is the date the parent files Form I-824, Application for Action On An Approved Application Or Petition, on the Child’s behalf (which can be filed with the parents I-485), or takes a “concrete step “forwards seeking LPR Status. DOS Cable, 03-state 15049 (1/17/03) 4422,23.
For example, a Form I-140 petition was filed in 2000 by a parent’s employer when the derivative child was 20 years of age. The Form I-140 petition was approved in 2002, and the immigrant visa number was current on approval.
The derivative child waited until 2004:
(1) To apply for adjustment of status (Form I-485) in the United Sates; or
(2) To submit the completed From DS-230 Part I for consular processing; or
(3) To take “concrete steps” towards seeking LPR status; or
(4) The parent filed Form I-824 with USCIS only in 2004.
In the four scenarios, the derivative child, although having a CSPA age of 20, is still ineligible to obtain LPR status because he or she or his her parent failed to file within one year of the I-140 Petition Approval or the availability of the immigrant visa, both 2002. The filing in 2004 was one year too late.
(The Author, Roma P. Mosqueda, has been practicing immigration law, among other areas of law, for over 20 years. He is a member of AILA and of the California Public Defenders Association. He is also a member of the Million Dollar Advocated Forum.
For comments on this article, e-mail to rpm_law@yahoo.com, or call (213) 252-9481 for free consultation appointments, or visit his website at www.mosquedalaw.com)
Act (CSPA) for Derivative
Children
By:
Roman P. Mosqueda
B.S., LL.B., LL.M., & S.J.D.
Signed into law on August 6, 2002, the Child Status Protection Act (CSPA), PL 107-208, 116 Stat. 927, INA § 201 (8), address the problem of minor children who age out (turn 21 years of age) due to long processing delays and large backlogs.
It permits certain beneficiaries in family -based, employment-based and
diversity-based petitions, as well as in some humanitarians programs (refugees, asylees, Violence Against Woman Act) to retain classifications as a “child” despite reaching the age of 21.
In the context of an employments-based petition, the CSPA allows the time the Form I-140, Immigrant Petition for Alien Workers, was pending to be subtracted from beneficiary’s biological age at the time of immigrant visa availability on the approval date thereof, whichever is later. INA § 203 (h) (3).
Formula For Determining
CSPA Age of Derivative Children :
Section 3 of the CSPA provides the formula for determining the CSPA age of direct and derivative children who are beneficiaries of family and employment-based petitions, as fallows:
(1) Determine the age of the child at the time an immigrant visa number becomes available (priority date of labor certification application (LCA) or of Form I-140 exempted from LCA becomes current), or the Form I-140 approval date, whichever is later;
(2) Subtract from this biological age the number of days that the Form I-140 Immigrant Visa Petition was pending (from receipt date to approval date) to get the CSPA age; and
(3) The child must “seek to acquire” lawful permanent resident (LPR) status (adjustment or immigrant visa) within one year of the approval of the I-140 petition or the availability of the immigrant visa, whichever is later.
For example, if the Form I-140 was filed in 2004, when the derivative child of the beneficiary was 19 years of age, and the priority date of the LCA of Form I-140 became available at that time (2004), but the Form I-140 petition was pending for 4 years, the biological age of the child after 4 years is 23 years, but his or her CSPA age is still 19 years. So, he or she has not aged-out.
In effect the CSPA locks in the age of a child at an earlier date that his or her age at the time of adjudication of adjustment of status (Form I-485) in the United States or of the immigrant visa application (Form DS-230 Part I).
Meaning of “Seeks To
Acquire” LPR Status:
The third prong of the formula for the application of the CSPA to derivative children stated above is that the child must “seek to acquire” lawful permanent resident (LPR) status within one year of the approval of the petition or the availability of the immigrant visa, whichever is later, in order to obtain the benefits of the CSPA.
The date of immigrant availability is defined by the U.S. Citizenship and Immigration Services (USCIS) as the first day of the first month a visa in the appropriate category was listed as available in the Department of State Visa Bulletin.
As a statute of limitations, this one-year period within which to apply for LPR Status, as a filing deadline, has been interpreted by the Department of State as follows:
(1.) The date the derivative child (not his or hers parent) submits the Completed Application For Immigrant Visa And Alien Registration (Form DS-230, Part I) and its reaching in the immigrant visa system;
(2.) As for a “following to join” derivative child whose LPR parent is in the United States, the date the child seeks to acquire LPR status for the one year filing deadline for the immigrant visa application is the date the parent files Form I-824, Application for Action On An Approved Application Or Petition, on the Child’s behalf (which can be filed with the parents I-485), or takes a “concrete step “forwards seeking LPR Status. DOS Cable, 03-state 15049 (1/17/03) 4422,23.
For example, a Form I-140 petition was filed in 2000 by a parent’s employer when the derivative child was 20 years of age. The Form I-140 petition was approved in 2002, and the immigrant visa number was current on approval.
The derivative child waited until 2004:
(1) To apply for adjustment of status (Form I-485) in the United Sates; or
(2) To submit the completed From DS-230 Part I for consular processing; or
(3) To take “concrete steps” towards seeking LPR status; or
(4) The parent filed Form I-824 with USCIS only in 2004.
In the four scenarios, the derivative child, although having a CSPA age of 20, is still ineligible to obtain LPR status because he or she or his her parent failed to file within one year of the I-140 Petition Approval or the availability of the immigrant visa, both 2002. The filing in 2004 was one year too late.
(The Author, Roma P. Mosqueda, has been practicing immigration law, among other areas of law, for over 20 years. He is a member of AILA and of the California Public Defenders Association. He is also a member of the Million Dollar Advocated Forum.
For comments on this article, e-mail to rpm_law@yahoo.com, or call (213) 252-9481 for free consultation appointments, or visit his website at www.mosquedalaw.com)
Wednesday, March 16, 2011
Criminal Cases with Immigration Consequences Los Angeles
If you are an immigrant charged with a crime in los angeles, be aware of the immigration consequences that you could be facing.
In many cases, crimes are good ground for the Department of Homeland Security to revoke your Green Card, Visa, and other forms of temporary residence.
In this situation, hiring a criminal defense attorney is not enough. Most criminal law lawyers know very little about immigration law and the potential pitfalls.
Atty Roman P. Mosqueda has been practicing both Criminal and Immigration Law for over 25 years. The benefits of practicing both fields of law are as follows.
1. You save Money: Atty Mosqueda offers discounts for bundling cases.
2. You get more Experience: You get two expert attorneys for the price of one
3. You get a Dedicated One Stop Lawyer: No need to explain your case to 2 different lawyers.
4. You get better Results: Atty. Mosqueda is able to handle your special situation with more skill than any single practice attorney.
We also can:
1. Lower your bail premium
2. Reduce charges against you. (Felony -> Misdemeanor -> Thrown out case)
3. Expert Services
4. The comfort of speaking with an Attorney who was also a First Generation Immigrant himself.
Call (213) 252-9481 to set up a FREE CONSULTATION with Attorney Roman P. Mosqueda today.
In many cases, crimes are good ground for the Department of Homeland Security to revoke your Green Card, Visa, and other forms of temporary residence.
In this situation, hiring a criminal defense attorney is not enough. Most criminal law lawyers know very little about immigration law and the potential pitfalls.
Atty Roman P. Mosqueda has been practicing both Criminal and Immigration Law for over 25 years. The benefits of practicing both fields of law are as follows.
1. You save Money: Atty Mosqueda offers discounts for bundling cases.
2. You get more Experience: You get two expert attorneys for the price of one
3. You get a Dedicated One Stop Lawyer: No need to explain your case to 2 different lawyers.
4. You get better Results: Atty. Mosqueda is able to handle your special situation with more skill than any single practice attorney.
We also can:
1. Lower your bail premium
2. Reduce charges against you. (Felony -> Misdemeanor -> Thrown out case)
3. Expert Services
4. The comfort of speaking with an Attorney who was also a First Generation Immigrant himself.
Call (213) 252-9481 to set up a FREE CONSULTATION with Attorney Roman P. Mosqueda today.
Filipino Criminal Defense Lawyer in Los Angeles
The Law Offices of Roman P. Mosqueda has been serving the community of Southern California for over 25 years. We have defended our clients against criminal charges brought against them with great success. We win cases.
We are currently offering FREE CONFIDENTIAL consultation at our offices.
CALL (213) 252 - 9481 Today!
Don't leave your future in the hands of overworked public defenders or inexperienced lawyers. Call (213) 252 - 9481 now and have your consultation with Atty. Mosqueda personally.
We are currently offering FREE CONFIDENTIAL consultation at our offices.
CALL (213) 252 - 9481 Today!
Don't leave your future in the hands of overworked public defenders or inexperienced lawyers. Call (213) 252 - 9481 now and have your consultation with Atty. Mosqueda personally.
Tuesday, March 15, 2011
Toyota's Product Liability Issues
Toyota Motor Corporation's product liability for unintended acceleration and braking problems, which has reportedly led to 10 million recalls and counting, would eventually be found to be manufacturing and/or design safety defects.
From the reported accounts of several accidents involving sudden acceleration and brake failure, the safety defects may, hopefully for Toyota, be limited to accelerator-pedal trapping floor mats, sticking accelerator pedals, and inconsistent anti-lock brake systems (ABS), and not include defective electronic throttle control systems (ETCS) or stirring systems, on Corollas, Camrys, and other Toyota models.
Toyota's global recalls have included Prius and Lexus hybrids, which indicate that the safety defects related to unintended acceleration and braking problems are systemic in nature.
Indeed, Toyota dealers nationwide have reportedly begun fixing accelerator pedals on recalled vehicles by installing a precision-cut reinforcement bar into the accelerator pedal assembly to eliminate the excess friction that has caused pedals to stick on occasions.
Dealers will also place reconfigured accelerator pedals and newly-designed floor mats on affected models to remedy floor mat pedal entrapment, and remedy the inconsistent brake feel of the anti-lock system (ABS) in 2010 Prious.
Moreover, Toyota will install a brake override system that cuts the engine on simultaneous application of accelerator and brake pedals. Even as Toyota is implementing the brake override system, it asserts that it "is confident that no defect exists in the electronic control unit (ECU)."
Manufacturing Versus Design Defects:
A. Manufacturing Defects:
The manufacturing process of a product consists of the formation, assembly, adjustment, combination, or processing of raw materials or ingredients according to the product design, per CCH, I Products Liability Reporter, Section 4785. Thus, manufacturing defects may arise from improper formation, faulty assembly or adjustment, incorrect composition, or defective raw materials or component parts.
Toyota has identified the manufacturing defect that causes sticking accelerators as the: "friction device that includes a 'shoe' that rubs against an adjoining surface during normal pedal operation. Due to the "materials used, wear and environmental conditions," these surfaces may begin to stick.... In some cases, friction could increase to a point... that the pedal sticks, leaving the throttle potentially open."
In one of the early Firestone cases filed by this Author in August 1999, with the Superior Court of Los Angeles County, the left rear tire of the injured family's Ford Explorer, a 1994 Firestone Radial ATX, had its tread along with one steel ply coming off completely all the way around the tire.
It caused the 1995 Ford Explorer running at 65 miles per hour on US 101 Freeway in Solvang County, Santa Barbara, California to run out of control and overturn, injuring a couple and their two minor daughters in a nonfatal accident in August 1998.
Bridgestone/Firestone Inc., settled before trial based on the expert report of Transamerican Consultant Engineers, Inc., obtained by this Author, which concluded that: "(T)he cause of the tread separation was due to a poor bond between the steel plies due to failure of the brass plating on the wires to completely fuse with the sulfur in the rubber during the vulcanizing process."
That case exemplified the manufacturing defect of incorrect composition or defective bonding materials.
B. Design Defects:
The designing of a product consists of the selection of materials and their intended construction as to size, shape, inclusion, and arrangement of component parts, per CCH, I Products Liability Reporter, Section 4745.
Thus, defects in design may take the forms of inadequacies in the plans or specifications, in the choice of materials for the product composition, or in the absence of safety devices or features.
Toyota's installation of a precision-cut reinforcement bar into the accelerator pedal assembly is a design safety device to remedy sudden acceleration. And its reconfiguration of the shape of the accelerator pedal and newly-designed floor mats are likewise design remedies to avoid floor mat pedal entrapment. Moreover, the installation of a brake override system is another design safety feature.
The placement of fuel tanks close to the rear bumpers in Ford's Pintos in the 1970's, which in a 1978 case in Orange County, California, caused the gas tank to explode in a rear-end collision, exemplified the design defect of inadequate plans or specifications.
Defective vehicle design was also at issue in the January 2002 roll-overs of a 1997 Ford Explorer SUV, which left a mother of two paralyzed from the waist down when the Explorer's roof caved in.
The San Diego jury found that Ford knew that the Explorer had design defects that increased its propensity to tip over, as well as its inadequate roof strength. The U.S. Supreme Court let stand the $82.6 million award to the paralyzed California women, which included $55 million in punitive damages.
Conclusion:
A vehicle recall is an admission of a defect or defects, whether manufacturing or design or both. Hopefully, the recall of Toyota vehicles would cure the defects. And Toyota would be liable only for the reduction in value and loss of use of the vehicle while being fixed. Otherwise, it may be liable also for punitive damages if it knew the defects all along.
For accident cases resulting in bodily injuries or deaths for sudden acceleration and failure of the brakes, the plaintiffs need to prove by a preponderance of the evidence either manufacturing or design or both defects through reconstruction and automotive experts.
Toyota Motor Corporation through their own experts will need to prove lack of defects or lack of causation for the injuries or death, that is, the loss of control of the Toyota vehicle was due to driver error. The jury and the appeal courts in case of appeals from the jury award or defense verdict will decide the outcome.
Our adversarial system of deciding legal disputes in courts would hopefully do justice to whom it is due.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
From the reported accounts of several accidents involving sudden acceleration and brake failure, the safety defects may, hopefully for Toyota, be limited to accelerator-pedal trapping floor mats, sticking accelerator pedals, and inconsistent anti-lock brake systems (ABS), and not include defective electronic throttle control systems (ETCS) or stirring systems, on Corollas, Camrys, and other Toyota models.
Toyota's global recalls have included Prius and Lexus hybrids, which indicate that the safety defects related to unintended acceleration and braking problems are systemic in nature.
Indeed, Toyota dealers nationwide have reportedly begun fixing accelerator pedals on recalled vehicles by installing a precision-cut reinforcement bar into the accelerator pedal assembly to eliminate the excess friction that has caused pedals to stick on occasions.
Dealers will also place reconfigured accelerator pedals and newly-designed floor mats on affected models to remedy floor mat pedal entrapment, and remedy the inconsistent brake feel of the anti-lock system (ABS) in 2010 Prious.
Moreover, Toyota will install a brake override system that cuts the engine on simultaneous application of accelerator and brake pedals. Even as Toyota is implementing the brake override system, it asserts that it "is confident that no defect exists in the electronic control unit (ECU)."
Manufacturing Versus Design Defects:
A. Manufacturing Defects:
The manufacturing process of a product consists of the formation, assembly, adjustment, combination, or processing of raw materials or ingredients according to the product design, per CCH, I Products Liability Reporter, Section 4785. Thus, manufacturing defects may arise from improper formation, faulty assembly or adjustment, incorrect composition, or defective raw materials or component parts.
Toyota has identified the manufacturing defect that causes sticking accelerators as the: "friction device that includes a 'shoe' that rubs against an adjoining surface during normal pedal operation. Due to the "materials used, wear and environmental conditions," these surfaces may begin to stick.... In some cases, friction could increase to a point... that the pedal sticks, leaving the throttle potentially open."
In one of the early Firestone cases filed by this Author in August 1999, with the Superior Court of Los Angeles County, the left rear tire of the injured family's Ford Explorer, a 1994 Firestone Radial ATX, had its tread along with one steel ply coming off completely all the way around the tire.
It caused the 1995 Ford Explorer running at 65 miles per hour on US 101 Freeway in Solvang County, Santa Barbara, California to run out of control and overturn, injuring a couple and their two minor daughters in a nonfatal accident in August 1998.
Bridgestone/Firestone Inc., settled before trial based on the expert report of Transamerican Consultant Engineers, Inc., obtained by this Author, which concluded that: "(T)he cause of the tread separation was due to a poor bond between the steel plies due to failure of the brass plating on the wires to completely fuse with the sulfur in the rubber during the vulcanizing process."
That case exemplified the manufacturing defect of incorrect composition or defective bonding materials.
B. Design Defects:
The designing of a product consists of the selection of materials and their intended construction as to size, shape, inclusion, and arrangement of component parts, per CCH, I Products Liability Reporter, Section 4745.
Thus, defects in design may take the forms of inadequacies in the plans or specifications, in the choice of materials for the product composition, or in the absence of safety devices or features.
Toyota's installation of a precision-cut reinforcement bar into the accelerator pedal assembly is a design safety device to remedy sudden acceleration. And its reconfiguration of the shape of the accelerator pedal and newly-designed floor mats are likewise design remedies to avoid floor mat pedal entrapment. Moreover, the installation of a brake override system is another design safety feature.
The placement of fuel tanks close to the rear bumpers in Ford's Pintos in the 1970's, which in a 1978 case in Orange County, California, caused the gas tank to explode in a rear-end collision, exemplified the design defect of inadequate plans or specifications.
Defective vehicle design was also at issue in the January 2002 roll-overs of a 1997 Ford Explorer SUV, which left a mother of two paralyzed from the waist down when the Explorer's roof caved in.
The San Diego jury found that Ford knew that the Explorer had design defects that increased its propensity to tip over, as well as its inadequate roof strength. The U.S. Supreme Court let stand the $82.6 million award to the paralyzed California women, which included $55 million in punitive damages.
Conclusion:
A vehicle recall is an admission of a defect or defects, whether manufacturing or design or both. Hopefully, the recall of Toyota vehicles would cure the defects. And Toyota would be liable only for the reduction in value and loss of use of the vehicle while being fixed. Otherwise, it may be liable also for punitive damages if it knew the defects all along.
For accident cases resulting in bodily injuries or deaths for sudden acceleration and failure of the brakes, the plaintiffs need to prove by a preponderance of the evidence either manufacturing or design or both defects through reconstruction and automotive experts.
Toyota Motor Corporation through their own experts will need to prove lack of defects or lack of causation for the injuries or death, that is, the loss of control of the Toyota vehicle was due to driver error. The jury and the appeal courts in case of appeals from the jury award or defense verdict will decide the outcome.
Our adversarial system of deciding legal disputes in courts would hopefully do justice to whom it is due.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Battery For Hugging And Attempting To Kiss
A female adult patient files a complaint with the Police Department that an ultrasound technician at a clinic had hugged and attempted to kiss her during the examination in the examination room.
The detectives interview the female adult victim and the suspect technician, who denied the accusation. The Huntington Park Police Department submits to the Los Angeles County District Attorney's Office a charge of battery in violation of Section 242 of the California Penal Code against the ultrasound technician.
Battery is defined as "any willful and unlawful use of force or violence upon the person of another" by Penal Code Section 242. It is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment, under Penal Code Section 243.
Ordinary Battery Not Sexual Battery:
Ordinary battery is differentiated from sexual battery in that sexual battery is defined by Penal Code Section 243.4 as: "touch(ing) an intimate part (sexual organ, anus, groin, or buttocks of any person, and the breast of a female) of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse...."
Sexual battery is normally punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000), under Penal Code Section 243.4(a).
So, the crime of sexual battery is a "wobbler." While it is normally charged as a misdemeanor (fine and/or county jail imprisonment), it can be charged as a felony (fine and state prison), depending on the facts of the crime at the prosecutorial discretion of the District Attorney.
Misdemeanor Complaint For Battery, Penal Code Section 242:
This kind of Complaint usually is filed as a misdemeanor by the District Attorney, consisting of one count. From the experience of this Author, the District Attorney's Office or the City Attorney's Office presents its "offer" for disposition of the case to the defense. The offer states what the prosecution wants from the defendant. This offer starts the process of plea bargaining.
It takes the prosecutor and defense counsel to agree to a final, plea-bargain disposition, and the Judge to approve it.
Ultimately, punishment for such crimes include: (1) stay-away, Protective - Restraining Order; (2) 15 sex counseling sessions; (3) 3-year Summary Probation; (4) no jail time, but 7 days of community service; and (5) $100 restitution fine.
******
(The Author, Roman P. Mosqueda, has been a criminal defense counsel for over 20 years in cases with the federal and state courts in California and New York)
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
The detectives interview the female adult victim and the suspect technician, who denied the accusation. The Huntington Park Police Department submits to the Los Angeles County District Attorney's Office a charge of battery in violation of Section 242 of the California Penal Code against the ultrasound technician.
Battery is defined as "any willful and unlawful use of force or violence upon the person of another" by Penal Code Section 242. It is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment, under Penal Code Section 243.
Ordinary Battery Not Sexual Battery:
Ordinary battery is differentiated from sexual battery in that sexual battery is defined by Penal Code Section 243.4 as: "touch(ing) an intimate part (sexual organ, anus, groin, or buttocks of any person, and the breast of a female) of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse...."
Sexual battery is normally punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000), under Penal Code Section 243.4(a).
So, the crime of sexual battery is a "wobbler." While it is normally charged as a misdemeanor (fine and/or county jail imprisonment), it can be charged as a felony (fine and state prison), depending on the facts of the crime at the prosecutorial discretion of the District Attorney.
Misdemeanor Complaint For Battery, Penal Code Section 242:
This kind of Complaint usually is filed as a misdemeanor by the District Attorney, consisting of one count. From the experience of this Author, the District Attorney's Office or the City Attorney's Office presents its "offer" for disposition of the case to the defense. The offer states what the prosecution wants from the defendant. This offer starts the process of plea bargaining.
It takes the prosecutor and defense counsel to agree to a final, plea-bargain disposition, and the Judge to approve it.
Ultimately, punishment for such crimes include: (1) stay-away, Protective - Restraining Order; (2) 15 sex counseling sessions; (3) 3-year Summary Probation; (4) no jail time, but 7 days of community service; and (5) $100 restitution fine.
******
(The Author, Roman P. Mosqueda, has been a criminal defense counsel for over 20 years in cases with the federal and state courts in California and New York)
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Form I-824, Application For Action on an Approved Application Or Petition
A Petition for Alien Relative (Form I-130) or an Application To Register Permanent Residence or Adjust Status (Form I-458) or an Application for Naturalization (Form N-400) has been approved by the U.S. Citizenship and Immigration Services (USCIS). What is the next step?
An Application of Action on an Approved Application or Petition (Form I-824, $340,00 filing fee) is used by an applicant to request: (1) a duplicate approval notice (2) USCIS to notify a different U.S. Consulate or Port-of-Entry about the approval of an application or petition; (3) USCIS to nifty a U.S. Consulate that the applicant's approved immigrant vista (form I-130) to the National Visa Center (NVC); of (5) USCIS to notify the U.S. Department of State of the applicant's U.S. citizenship status.
Information Required by Form I-824:
Index information (name, address, daytime phone number, country of birth and citizenship, date of birth, Alien Number, Social Security Number) about the applicant filing Form I-824.; information about eh original petition (Form I-130) of application (Form I-458, N-400) (type and form number, Receipt Number on Form I-797, Notice of Action, filing date, approval date, immigration status of petitioner or applicant, naturalization certificate number); information about the principal beneficiary of the original petition or application (name, date of birth, country of birth, Alien number, home address mailing address and daytime phone number) are required in filling up Form I-824.
Indeed, Form I-824 is used to request further action on an approved petition or application. So, the said information are required for processing of the request stated therein.
Purposes For Which Form I-824 Cannot Be Used:
Note, however, that Form I-824 cannot be used to verify the status of a pending petition or application. Nor will Form I-842 be processed, if the original petition or application has not been approved, or has been denied.
Nor can Form I-824 be used to request: (1) a duplicate approval notice naming a spouse or children accompanying or following-to-join the principal beneficiary on an approved immigration or (2) USCIS to cable information to the U.S. Consulate regarding the approval of your expired nonimmigrant application or petition, if the employment of the applicant for the original petitioner (in Form I-140 or Form I-129) has ended; or (4) USCIS to notify a U.S. Consulate of the approval of a Form I-600A, Application for Advance Processing of Orphan Petition, and/or a Form I-600, Petition to Classify Orphan as an Immediate Relative.
Moreover, a separate Form I-824 must be filled for each action being requested, with separate filing fee to the USCIS.
Application of Form I-824 to Factual Situations:
There are various situations when Form I-824 would be needed: (1) replacement of lost approval notice of Forms I-130, I-140, I-145 etc., to a U.S. Consulate for processing of immigrant visa to immediate relatives and/or derivatives (spouses and minor children nor considered immediate relatives under the preferences); (3) sending by the USCIS of the approved immigrant visa (Forms I-130, I-140) to the National Visa Center (NVC) for processing of the application for immigrant visa of the beneficiary and derivatives; and (4) notification by the USCIS of the applicant's U.S. citizenship status tot eh U.S. Department of State.
Specific Actions That May Be Taken on Requests:
The Requested duplicate approval notice will contain only the information listed on the original Form I-797, Notice of Action. It will not include a replacement employment card, Form I-688A, Form I-94, or any other USCIS authorization document that accompanied the original Form I-797.
As stated earlier, Form I-695 is used to apply for replacement for the employment authorization. From I-102 Application for Replacement of Nonimmigrant Arrival-Departure Document, $320.00 filing fee, is used to obtain replacement of Form I-94 (Departure Document).
Any notification to a U.S. Consul by the USCIS as request is done through cable. And notification of a U.S. Consulate of the adjustment of status of an applicant is available only on following-to-join immigrant relative visas based on a principal's (beneficiary) employment, fiancé (e), or diversity status.
In lieu of requesting the USCIS to notify the U.S. Department of State of the application's U.S. Citizenship status, the applicant or new U.S. citizen may submit a copy of the naturalization certificate to the National Visa Center at 32 Rochester Avenue, Portsmouth, New Hampshire 03801-2909.
Form I-824 may be ordered by calling toll-free number 1-800-870-3676, or calling the USCIS National Customer Service Center at 1-800-375-5283, or visiting the internet website at www.uscis.gov.
Once completed, Form I-824 and any related evidence, together with the $340.00 filing fee payable to U.S. Department of Homeland Security, should be filed with the USCIS Service Center or local office that approved the original petition or application.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
An Application of Action on an Approved Application or Petition (Form I-824, $340,00 filing fee) is used by an applicant to request: (1) a duplicate approval notice (2) USCIS to notify a different U.S. Consulate or Port-of-Entry about the approval of an application or petition; (3) USCIS to nifty a U.S. Consulate that the applicant's approved immigrant vista (form I-130) to the National Visa Center (NVC); of (5) USCIS to notify the U.S. Department of State of the applicant's U.S. citizenship status.
Information Required by Form I-824:
Index information (name, address, daytime phone number, country of birth and citizenship, date of birth, Alien Number, Social Security Number) about the applicant filing Form I-824.; information about eh original petition (Form I-130) of application (Form I-458, N-400) (type and form number, Receipt Number on Form I-797, Notice of Action, filing date, approval date, immigration status of petitioner or applicant, naturalization certificate number); information about the principal beneficiary of the original petition or application (name, date of birth, country of birth, Alien number, home address mailing address and daytime phone number) are required in filling up Form I-824.
Indeed, Form I-824 is used to request further action on an approved petition or application. So, the said information are required for processing of the request stated therein.
Purposes For Which Form I-824 Cannot Be Used:
Note, however, that Form I-824 cannot be used to verify the status of a pending petition or application. Nor will Form I-842 be processed, if the original petition or application has not been approved, or has been denied.
Nor can Form I-824 be used to request: (1) a duplicate approval notice naming a spouse or children accompanying or following-to-join the principal beneficiary on an approved immigration or (2) USCIS to cable information to the U.S. Consulate regarding the approval of your expired nonimmigrant application or petition, if the employment of the applicant for the original petitioner (in Form I-140 or Form I-129) has ended; or (4) USCIS to notify a U.S. Consulate of the approval of a Form I-600A, Application for Advance Processing of Orphan Petition, and/or a Form I-600, Petition to Classify Orphan as an Immediate Relative.
Moreover, a separate Form I-824 must be filled for each action being requested, with separate filing fee to the USCIS.
Application of Form I-824 to Factual Situations:
There are various situations when Form I-824 would be needed: (1) replacement of lost approval notice of Forms I-130, I-140, I-145 etc., to a U.S. Consulate for processing of immigrant visa to immediate relatives and/or derivatives (spouses and minor children nor considered immediate relatives under the preferences); (3) sending by the USCIS of the approved immigrant visa (Forms I-130, I-140) to the National Visa Center (NVC) for processing of the application for immigrant visa of the beneficiary and derivatives; and (4) notification by the USCIS of the applicant's U.S. citizenship status tot eh U.S. Department of State.
Specific Actions That May Be Taken on Requests:
The Requested duplicate approval notice will contain only the information listed on the original Form I-797, Notice of Action. It will not include a replacement employment card, Form I-688A, Form I-94, or any other USCIS authorization document that accompanied the original Form I-797.
As stated earlier, Form I-695 is used to apply for replacement for the employment authorization. From I-102 Application for Replacement of Nonimmigrant Arrival-Departure Document, $320.00 filing fee, is used to obtain replacement of Form I-94 (Departure Document).
Any notification to a U.S. Consul by the USCIS as request is done through cable. And notification of a U.S. Consulate of the adjustment of status of an applicant is available only on following-to-join immigrant relative visas based on a principal's (beneficiary) employment, fiancé (e), or diversity status.
In lieu of requesting the USCIS to notify the U.S. Department of State of the application's U.S. Citizenship status, the applicant or new U.S. citizen may submit a copy of the naturalization certificate to the National Visa Center at 32 Rochester Avenue, Portsmouth, New Hampshire 03801-2909.
Form I-824 may be ordered by calling toll-free number 1-800-870-3676, or calling the USCIS National Customer Service Center at 1-800-375-5283, or visiting the internet website at www.uscis.gov.
Once completed, Form I-824 and any related evidence, together with the $340.00 filing fee payable to U.S. Department of Homeland Security, should be filed with the USCIS Service Center or local office that approved the original petition or application.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Contempt For Failure to Pay Child, Spousal, Family Support
No child, spousal, or family support ordered by the Family Court is paid by the obligor parent or spouse, resulting in contempt of court at the time the support payment was due. A judgment or order made or entered pursuant to the California Family Code may be enforced by the Family Court by contempt in its discretion, under § 290 of the Family Code.
Each month of failure to pay in full, child, spousal, or family support when due constitutes a separate count or charge of contempt, for which punishment is imposed for each count proven, under § 1218.5(a) of the California Code of Civil Procedure.
The period or statute of limitations for commencing a contempt action based on failure to pay child, spousal, or family support is three (3) years from the date that the payment was due, under § 1218.5(b) thereof.
Contempt proceedings are initiated in California by completing and filing Judicial Council Form FL-410, Order To Show Cause and Affidavit For Contempt, and the required Judicial Council attachment, depending on the kind of underlying order issued.
Elements Of Contempt And
Burdens And Standards Of Proofs:
§ 1209.5 of the California Code of Civil Procedure states the elements of civil contempt based on failure to comply with a child support order as follows:
(1) valid underlying support order of a court of competent jurisdiction;
(2) obligor's (contemner's) knowledge of the order through:
(a) proof that the order was made, filed and served on the obligor parent; or
(b) proof that the obligor parent was present in court at the time the order was pronounced; and
(3) noncompliance of the support order, as prima facie evidence of a contempt of court.
These three (3) elements are also stated in In re Ivey (2000) 85 CA9th 793, 803, 102 CR 447, which further held that:
"If the petitioner proves those elements beyond a reasonable doubt the violation is established. He or she need go no further. To prevail on the affirmative defense of inability to comply with the support order, the contemnor (or contemner) must prove such inability by a preponderance of the evidence."
Ability to pay by the alleged obligor (contemner) was not considered an element of contempt because "the failure to pay constituting the contempt occurred shortly after the determination of ability to pay had been made (in the underlying orders)," in In re Ivey, supra, involving a father's failure to pay the mother's pendente lite attorney and expert fees in a criminal contempt action.
Thus, while the proponent (petitioner) of the contempt has the burden of proving the elements of contempt beyond a reasonable doubt (a criminal case standard of proof), the alleged contemner has the burden of proving inability to comply as an affirmative defense by a preponderance of the evidence (a civil case standard of proof).
Types Of Contempt Proceedings
And Sentences Imposed:
Contempt proceedings may be civil or criminal in nature. Civil contempt is governed by §§ 1209-1222 of the California Code of Civil Procedure; while criminal contempt for violation of penal statutes is prosecuted as a crime, under § 166 of the California Penal Code.
Contempt proceedings are considered "civil" in nature, if the contempt judgment coersively subjects the obligor or contemner to imprisonment only until he or she complies with the act(s) ordered by the court. So, a "civil" contemner may be incarcerated indefinitely pending compliance of the contempt order, under § 1218(c) of the California Code of Civil Procedure. But the civil contemner has the "ability to purge" by performing the act(s) ordered.
The lack of "ability to purge" characterizes contempt proceedings as "criminal" in nature. It is punitive, rather than coercive. And a criminal contempt judgment subjects the obligor or contemner to a sentence of fine not exceeding one thousand dollars ($1,000.00), or imprisonment not exceeding five (5) days or both for each count of contempt.
Thus, the potentially indefinite incarceration resulting from a civil contempt judgment arguably renders it more onerous, even more punitive than criminal contempt, under certain circumstances.
But the parties and even the court may not know what type of contempt proceedings they are in, until the particular judgment is pronounced or issued by the court.
The complexities and uncertainties of outcomes of contempt proceedings have relegated contempt as a tactical tool for exacting settlement from the defaulting parent or spouse.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Each month of failure to pay in full, child, spousal, or family support when due constitutes a separate count or charge of contempt, for which punishment is imposed for each count proven, under § 1218.5(a) of the California Code of Civil Procedure.
The period or statute of limitations for commencing a contempt action based on failure to pay child, spousal, or family support is three (3) years from the date that the payment was due, under § 1218.5(b) thereof.
Contempt proceedings are initiated in California by completing and filing Judicial Council Form FL-410, Order To Show Cause and Affidavit For Contempt, and the required Judicial Council attachment, depending on the kind of underlying order issued.
Elements Of Contempt And
Burdens And Standards Of Proofs:
§ 1209.5 of the California Code of Civil Procedure states the elements of civil contempt based on failure to comply with a child support order as follows:
(1) valid underlying support order of a court of competent jurisdiction;
(2) obligor's (contemner's) knowledge of the order through:
(a) proof that the order was made, filed and served on the obligor parent; or
(b) proof that the obligor parent was present in court at the time the order was pronounced; and
(3) noncompliance of the support order, as prima facie evidence of a contempt of court.
These three (3) elements are also stated in In re Ivey (2000) 85 CA9th 793, 803, 102 CR 447, which further held that:
"If the petitioner proves those elements beyond a reasonable doubt the violation is established. He or she need go no further. To prevail on the affirmative defense of inability to comply with the support order, the contemnor (or contemner) must prove such inability by a preponderance of the evidence."
Ability to pay by the alleged obligor (contemner) was not considered an element of contempt because "the failure to pay constituting the contempt occurred shortly after the determination of ability to pay had been made (in the underlying orders)," in In re Ivey, supra, involving a father's failure to pay the mother's pendente lite attorney and expert fees in a criminal contempt action.
Thus, while the proponent (petitioner) of the contempt has the burden of proving the elements of contempt beyond a reasonable doubt (a criminal case standard of proof), the alleged contemner has the burden of proving inability to comply as an affirmative defense by a preponderance of the evidence (a civil case standard of proof).
Types Of Contempt Proceedings
And Sentences Imposed:
Contempt proceedings may be civil or criminal in nature. Civil contempt is governed by §§ 1209-1222 of the California Code of Civil Procedure; while criminal contempt for violation of penal statutes is prosecuted as a crime, under § 166 of the California Penal Code.
Contempt proceedings are considered "civil" in nature, if the contempt judgment coersively subjects the obligor or contemner to imprisonment only until he or she complies with the act(s) ordered by the court. So, a "civil" contemner may be incarcerated indefinitely pending compliance of the contempt order, under § 1218(c) of the California Code of Civil Procedure. But the civil contemner has the "ability to purge" by performing the act(s) ordered.
The lack of "ability to purge" characterizes contempt proceedings as "criminal" in nature. It is punitive, rather than coercive. And a criminal contempt judgment subjects the obligor or contemner to a sentence of fine not exceeding one thousand dollars ($1,000.00), or imprisonment not exceeding five (5) days or both for each count of contempt.
Thus, the potentially indefinite incarceration resulting from a civil contempt judgment arguably renders it more onerous, even more punitive than criminal contempt, under certain circumstances.
But the parties and even the court may not know what type of contempt proceedings they are in, until the particular judgment is pronounced or issued by the court.
The complexities and uncertainties of outcomes of contempt proceedings have relegated contempt as a tactical tool for exacting settlement from the defaulting parent or spouse.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Effects Of Bankruptcy Discharge
A debtor filed Chapter 7 bankruptcy petition through this Author, seeking to discharge secured and unsecured claims of creditors.
A Section 341(a) meeting of creditors (actually an examination under oath of the debtor by the appointed trustee, with creditors welcomed to attend, but not required to do so) was conducted by the bankruptcy trustee, attended by the debtor and this Author. All listed and scheduled creditors must receive at least 30 days' advanced notice of the creditors' meeting, under Bankruptcy Rule 4007(c).
After several months, the assigned Bankruptcy Judge issued a discharge order, discharging the debtor from all personal liability for any and all secured and unsecured claims listed in the bankruptcy petition schedules. Secured creditors can foreclose on the security interest or collateral in case of debtor's default.
Discharge Injunction Against Personal Liability Of Debtor:
The discharge order carries the discharge injunction of 11 U.S.C. §524(a)(2)-(3), "which operates against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any debt as a personal liability of the debtor, whether or not discharge of such debt is waived."
Indeed, the discharge injunction under aforesaid Bankruptcy Code section 524(a)(2)-(3) effectively prevents or terminates any collection action against the debtor that holds him personally liable, except for recourse against the security interest or collateral by a secured creditor.
State Court Cannot Modify Discharge Injunction Or Its Effects:
In McGhan v. Rutz (In re McGhan), 288 F3d 1172 (9th Cir. 2002), the Ninth Circuit held that "...the state court (where the civil action was filed to collect on the discharged debt) lacked authority to modify the bankruptcy court's orders discharging Rutz's claim and permanently enjoining Rutz from collecting on the debt."
Thus, the aforesaid discharge injunction is permanent and remains in effect indefinitely.
Moreover, the Ninth Circuit concluded that "it was an abuse of discretion for the bankruptcy court to decline to reopen McGhan's bankruptcy case..." (because it) was required to reopen the proceedings to protect its exclusive jurisdiction over the enforcement of its own orders."
Discharge Injunction Applied To Attachment Lien:
In a state action for collection against a client of this Author, the plaintiff jewelry company applied for ex parte and was granted a writ of attachment, attaching certain interests of the defendant, including her ownership interest in a condominium in Torrance, California.
After this Author had filed the defendant's answer to the complaint in the Superior Court action, the defendant decided to file Chapter 7 bankruptcy petition. She retained this Author to do so.
The filing of the Chapter 7 petition resulted in an automatic stay of the state action, pursuant to Bankruptcy Code section 362. Plaintiff, a listed and scheduled creditor, filed its motion for relief from automatic stay with the Bankruptcy Court. It was opposed by written Response by this Author, on behalf of the debtor in bankruptcy.
After oral arguments at the hearing on the motion for relief from automatic stay, Los Angeles Bankruptcy Judge Vincent P. Zurzolo denied the motion on December 11, 2008. So, Plaintiff was unable to lift the automatic stay and obtain a judgment in the state action.
On July 22, 2009, the Bankruptcy Court issued its order of discharge of debtor under 11 U.S.C. §727. The exception to the discharge is: "a creditor has a right to enforce a valid lien, such as a mortgage or security interest, against the debtor's property after the bankruptcy."
Attachment Lien Not Perfected By Judgment Before Discharge:
In Diamant v. Kasparian (In Re Southern California Plastics, Inc), 165 F.3d 1243, 1246 (9th Cir. 1999), the Ninth Circuit held that: "(a)ttachement liens are solely creatures of state statutory law...California law requires a judgment for perfection" (of an attachment lien).
It warned that: "(p)ermitting an allowance of claim (in the bankruptcy case) to substitute for a judgment perfecting an attachment lien undermines the rights and protections created by the California Legislature."
So, the failure of the Plaintiff discussed above to obtain a judgment in the state action to perfect its attachment lien before the discharge order of the Bankruptcy Court resulted in an unsecured claim discharged in the Chapter 7 bankruptcy petition.
State Court Declined To Apply Discharge Injunction And Proceeded With State Action:
This Author's first motion to dismiss the state action because of the discharge injunction was denied without prejudice by the Hon. Irving Shimer, who honestly stated at the hearing that he was not sure of his ruling. So, the state action proceeded to discovery despite the discharge order and permanent injunction.
But since the denial was without prejudice, this Author, on behalf of the defendant-debtor, filed her second motion to dismiss and argued that "(d)enial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial, citing Farber v. Bay View Terrace Homeowners Ass'n., 46 Cal. Rptr.3d. 425 (App. 4 Dist. 2006).
A new Los Angeles Superior Court Judge, the Hon. Michelle I. Rosenblatt, also declined to apply the discharge injunction of the Bankruptcy Code. And the state action for collection proceeded to judgment against the defendant-debtor already discharged in bankruptcy.
The consolation to the defendant-debtor who did not appeal the judgment, nor reopen the bankruptcy case is that: she is a retired widow over 65 years old and does not have sufficient equity in her ownership interest on the co-owned condominium, over and beyond her $150,000 homestead exemption from judgment execution.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
A Section 341(a) meeting of creditors (actually an examination under oath of the debtor by the appointed trustee, with creditors welcomed to attend, but not required to do so) was conducted by the bankruptcy trustee, attended by the debtor and this Author. All listed and scheduled creditors must receive at least 30 days' advanced notice of the creditors' meeting, under Bankruptcy Rule 4007(c).
After several months, the assigned Bankruptcy Judge issued a discharge order, discharging the debtor from all personal liability for any and all secured and unsecured claims listed in the bankruptcy petition schedules. Secured creditors can foreclose on the security interest or collateral in case of debtor's default.
Discharge Injunction Against Personal Liability Of Debtor:
The discharge order carries the discharge injunction of 11 U.S.C. §524(a)(2)-(3), "which operates against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any debt as a personal liability of the debtor, whether or not discharge of such debt is waived."
Indeed, the discharge injunction under aforesaid Bankruptcy Code section 524(a)(2)-(3) effectively prevents or terminates any collection action against the debtor that holds him personally liable, except for recourse against the security interest or collateral by a secured creditor.
State Court Cannot Modify Discharge Injunction Or Its Effects:
In McGhan v. Rutz (In re McGhan), 288 F3d 1172 (9th Cir. 2002), the Ninth Circuit held that "...the state court (where the civil action was filed to collect on the discharged debt) lacked authority to modify the bankruptcy court's orders discharging Rutz's claim and permanently enjoining Rutz from collecting on the debt."
Thus, the aforesaid discharge injunction is permanent and remains in effect indefinitely.
Moreover, the Ninth Circuit concluded that "it was an abuse of discretion for the bankruptcy court to decline to reopen McGhan's bankruptcy case..." (because it) was required to reopen the proceedings to protect its exclusive jurisdiction over the enforcement of its own orders."
Discharge Injunction Applied To Attachment Lien:
In a state action for collection against a client of this Author, the plaintiff jewelry company applied for ex parte and was granted a writ of attachment, attaching certain interests of the defendant, including her ownership interest in a condominium in Torrance, California.
After this Author had filed the defendant's answer to the complaint in the Superior Court action, the defendant decided to file Chapter 7 bankruptcy petition. She retained this Author to do so.
The filing of the Chapter 7 petition resulted in an automatic stay of the state action, pursuant to Bankruptcy Code section 362. Plaintiff, a listed and scheduled creditor, filed its motion for relief from automatic stay with the Bankruptcy Court. It was opposed by written Response by this Author, on behalf of the debtor in bankruptcy.
After oral arguments at the hearing on the motion for relief from automatic stay, Los Angeles Bankruptcy Judge Vincent P. Zurzolo denied the motion on December 11, 2008. So, Plaintiff was unable to lift the automatic stay and obtain a judgment in the state action.
On July 22, 2009, the Bankruptcy Court issued its order of discharge of debtor under 11 U.S.C. §727. The exception to the discharge is: "a creditor has a right to enforce a valid lien, such as a mortgage or security interest, against the debtor's property after the bankruptcy."
Attachment Lien Not Perfected By Judgment Before Discharge:
In Diamant v. Kasparian (In Re Southern California Plastics, Inc), 165 F.3d 1243, 1246 (9th Cir. 1999), the Ninth Circuit held that: "(a)ttachement liens are solely creatures of state statutory law...California law requires a judgment for perfection" (of an attachment lien).
It warned that: "(p)ermitting an allowance of claim (in the bankruptcy case) to substitute for a judgment perfecting an attachment lien undermines the rights and protections created by the California Legislature."
So, the failure of the Plaintiff discussed above to obtain a judgment in the state action to perfect its attachment lien before the discharge order of the Bankruptcy Court resulted in an unsecured claim discharged in the Chapter 7 bankruptcy petition.
State Court Declined To Apply Discharge Injunction And Proceeded With State Action:
This Author's first motion to dismiss the state action because of the discharge injunction was denied without prejudice by the Hon. Irving Shimer, who honestly stated at the hearing that he was not sure of his ruling. So, the state action proceeded to discovery despite the discharge order and permanent injunction.
But since the denial was without prejudice, this Author, on behalf of the defendant-debtor, filed her second motion to dismiss and argued that "(d)enial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial, citing Farber v. Bay View Terrace Homeowners Ass'n., 46 Cal. Rptr.3d. 425 (App. 4 Dist. 2006).
A new Los Angeles Superior Court Judge, the Hon. Michelle I. Rosenblatt, also declined to apply the discharge injunction of the Bankruptcy Code. And the state action for collection proceeded to judgment against the defendant-debtor already discharged in bankruptcy.
The consolation to the defendant-debtor who did not appeal the judgment, nor reopen the bankruptcy case is that: she is a retired widow over 65 years old and does not have sufficient equity in her ownership interest on the co-owned condominium, over and beyond her $150,000 homestead exemption from judgment execution.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Caregiver Versus Personal Attendant - Wages and Benefits
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Are you a caregiver or a personal attendant who works in a private household or home? As a household worker either as a caregiver or personal attendant, are you entitled to minimum wage? Over-time pay? Other benefits?
If hired directly by an individual or family, your benefits are different from one who is hired by a private firm or agency and governed by general employment laws: applicable federal and state statutes.
A live-in employee as opposed to a live-out employee is subject to special work rules discussed below.
A caregiver or "care custodian" is defined by Section 15610.17 of the California Welfare and Institutions Code as:
"... an administrator or an employee of...public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff."
A "personal attendant" is not entitled to overtime compensation, unless:
(1.) he or she is a live-in employee; or
(2.) he or she does general household work (cleaning, cooking, feeding, dressing, or supervising) that exceeds 20% of the total work time; or
(3.) he or she does nurse-like duties (checking pulse, taking temperature, giving medication) more than 20% of the total work time.
In these three instances, the household worker is no longer considered a "personal attendant" and is entitled to overtime pay. Otherwise, light house keeping and cooking chores qualify as work exempt from overtime compensation.
Personal Attendant As Defined In CA IWC Wage Order 15:
Section 2(J) of the California Industrial Welfare Commission (IWC) Wage Order No. 15-2001 defines "personal attendant" as follows:
"'Personal attendant' includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of 'personal attendant' shall apply when no significant amount of work other than the foregoing is required."
Indeed, the California Division of Labor Standards Enforcement (DLSE) has historically adopted the standard used in the federal regulations, 29 C.F.R. 552.6 on "companionship services," to wit:
"...(T)he term 'companionship services' shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked."
Federal regulations, 29 C.F.R 552.6, supra, further clarifies that:
"The term 'companionship services' does not include services related to the care and protection of the aged or infirm that require and are performed by trained personnel, such as registered or practical nurse."
Thus, the acceptable duties of a "personal attendant" involve activities of daily living such as getting in or out of bed, showering, bathing, using a toilet. A "personal attendant's" duties of "supervising" would include assistance in obtaining medical care, preparing meals, shopping for personal items or groceries, using a telephone, even managing money.
As long as any general housekeeping duties performed do not exceed 20% of the weekly working time spent by a "personal attendant," he or she is exempted from the protections of California Wage Order No. 15-2001 such as overtime compensation, etc., except for minimum wage. But prior to 2001, a classification as "personal attendant" also excluded minimum wage in California.
This overtime compensation exemption also applies to "personal attendants" as well as other household workers such as caregivers, spending 20% or less of their working time doing general household work, who are employed by an agency and sent to private households to work.
Benefits Of Household Workers:
A. Minimum Wage:
The state minimum wage covers all employees, including household workers (live-in employees, caregivers, and "personal attendants") but excluding legitimate independent contractors. The current California minimum wage is $8.00 per hour since January 1, 2008, a 6.7% increase over the previous $7.50 minimum wage.
There are several factors that determine whether a person is an independent contractor or not. But the primary factor is control by the employer of the means, manner and outcome of the job. An independent contractor runs his or her own household services business, has his or her tools and materials, and controls the manner and outcome of the job.
Independent contractors are not covered by minimum wage and overtime compensation statutes.
B. Overtime Pay:
Household workers who are not live-in employees, as well as "personal attendants" who do general household work that exceeds 20% of their weekly working time, are entitled to overtime compensation, consisting of one and one half times their regular rate of pay for working more than eight (8) hours in a day, or more than (40) hours in a week.
Live-in employees must be paid one and one half times the regular rate for all hours worked over twelve (12) hours (instead of over eight (8) hours) in one work day for five (5) workdays. On the sixth and seventh day, live-in employees must be paid double the regular rate for all hours worked over (9) hours per day. See California IWC Wage Order No. 15-2001 §3(A)-(B) (8 Cal Code Regs. § 11150(3)(A)-(B)).
Under federal law, 29 U.S.C. § 213(a)(15), "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" is granted exemptions from minimum wage and overtime pay.
C. Other Benefits Of Household Workers:
1. Hours And Days Of Work:
A live-in employee is entitled to at least twelve (12) consecutive hours free of duty during each workday of twenty-four (24) hours, and the total span of hours for a day of work should not exceed twelve (12) hours, except that: (a) the employee must have at least three (3) hours free of duty during the 12 hours span of work; and (b) the employee required or permitted to work during scheduled off-duty hours or during the 12 consecutive off-duty hours must be paid one and one-half times the regular rate of pay for all such hours worked. See California IWC Wage Order No. 15-2001 §3(A).
Moreover, no live-in employee shall be required to work more than five (5) days in any one workweek without a day off of not less than 24 consecutive hours except in an emergency. See California IWC Wage Order No. 15-2001 §3(B).
2. Rest And Meal Periods:
Household workers are entitled to a ten-minute paid rest break for every four (4) hours of work under California IWC Wage Order No. 15-2001 §12(A), and a thirty-minute meal period of every five (5) hours worked, just like others kinds of employees, under California IWC Wage Order No. 15-2001 §11(A).
Otherwise, the employer shall pay the employee one (1) hour of pay at regular rate for each workday that the rest period, or the meal period is not provided. See California IWC Wage Order No. 15-2001 §§12(B), 11(D). But "personal attendants" are not granted rest and meal periods.
3. Meal And Housing Deductions From Wages:
The employer may subtract meal and housing credits from the employee's paycheck if:
(a) the employee actually uses the meals and is provided with housing;
(b) meals and housing are used as salary to comply with the minimum wage; and
(c) the employee executes a voluntary, written agreement, crediting meals and housing towards minimum wage.
Meal credit may be deducted as follows: breakfast - $2.45; lunch - $3.35, and dinner - $4.50. Housing may also be credited at $31.75 per week for a room ($26.20 if shared). See California IWC Wage Order No. 15 - 2001 §10(C).
In summary, whether you are a caregiver or a "personal attendant" entitled to particular wages and benefits in California or in other states depends on whether the general household work you do exceeds 20% of your total work time.
(The Author, Roman P. Mosqueda, practices wage and hour law in California.
This article is not legal advice, and no attorney-client relationship is formed with the reader. For specific labor law issues, consult a competent attorney.)
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Are you a caregiver or a personal attendant who works in a private household or home? As a household worker either as a caregiver or personal attendant, are you entitled to minimum wage? Over-time pay? Other benefits?
If hired directly by an individual or family, your benefits are different from one who is hired by a private firm or agency and governed by general employment laws: applicable federal and state statutes.
A live-in employee as opposed to a live-out employee is subject to special work rules discussed below.
A caregiver or "care custodian" is defined by Section 15610.17 of the California Welfare and Institutions Code as:
"... an administrator or an employee of...public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff."
A "personal attendant" is not entitled to overtime compensation, unless:
(1.) he or she is a live-in employee; or
(2.) he or she does general household work (cleaning, cooking, feeding, dressing, or supervising) that exceeds 20% of the total work time; or
(3.) he or she does nurse-like duties (checking pulse, taking temperature, giving medication) more than 20% of the total work time.
In these three instances, the household worker is no longer considered a "personal attendant" and is entitled to overtime pay. Otherwise, light house keeping and cooking chores qualify as work exempt from overtime compensation.
Personal Attendant As Defined In CA IWC Wage Order 15:
Section 2(J) of the California Industrial Welfare Commission (IWC) Wage Order No. 15-2001 defines "personal attendant" as follows:
"'Personal attendant' includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of 'personal attendant' shall apply when no significant amount of work other than the foregoing is required."
Indeed, the California Division of Labor Standards Enforcement (DLSE) has historically adopted the standard used in the federal regulations, 29 C.F.R. 552.6 on "companionship services," to wit:
"...(T)he term 'companionship services' shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked."
Federal regulations, 29 C.F.R 552.6, supra, further clarifies that:
"The term 'companionship services' does not include services related to the care and protection of the aged or infirm that require and are performed by trained personnel, such as registered or practical nurse."
Thus, the acceptable duties of a "personal attendant" involve activities of daily living such as getting in or out of bed, showering, bathing, using a toilet. A "personal attendant's" duties of "supervising" would include assistance in obtaining medical care, preparing meals, shopping for personal items or groceries, using a telephone, even managing money.
As long as any general housekeeping duties performed do not exceed 20% of the weekly working time spent by a "personal attendant," he or she is exempted from the protections of California Wage Order No. 15-2001 such as overtime compensation, etc., except for minimum wage. But prior to 2001, a classification as "personal attendant" also excluded minimum wage in California.
This overtime compensation exemption also applies to "personal attendants" as well as other household workers such as caregivers, spending 20% or less of their working time doing general household work, who are employed by an agency and sent to private households to work.
Benefits Of Household Workers:
A. Minimum Wage:
The state minimum wage covers all employees, including household workers (live-in employees, caregivers, and "personal attendants") but excluding legitimate independent contractors. The current California minimum wage is $8.00 per hour since January 1, 2008, a 6.7% increase over the previous $7.50 minimum wage.
There are several factors that determine whether a person is an independent contractor or not. But the primary factor is control by the employer of the means, manner and outcome of the job. An independent contractor runs his or her own household services business, has his or her tools and materials, and controls the manner and outcome of the job.
Independent contractors are not covered by minimum wage and overtime compensation statutes.
B. Overtime Pay:
Household workers who are not live-in employees, as well as "personal attendants" who do general household work that exceeds 20% of their weekly working time, are entitled to overtime compensation, consisting of one and one half times their regular rate of pay for working more than eight (8) hours in a day, or more than (40) hours in a week.
Live-in employees must be paid one and one half times the regular rate for all hours worked over twelve (12) hours (instead of over eight (8) hours) in one work day for five (5) workdays. On the sixth and seventh day, live-in employees must be paid double the regular rate for all hours worked over (9) hours per day. See California IWC Wage Order No. 15-2001 §3(A)-(B) (8 Cal Code Regs. § 11150(3)(A)-(B)).
Under federal law, 29 U.S.C. § 213(a)(15), "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" is granted exemptions from minimum wage and overtime pay.
C. Other Benefits Of Household Workers:
1. Hours And Days Of Work:
A live-in employee is entitled to at least twelve (12) consecutive hours free of duty during each workday of twenty-four (24) hours, and the total span of hours for a day of work should not exceed twelve (12) hours, except that: (a) the employee must have at least three (3) hours free of duty during the 12 hours span of work; and (b) the employee required or permitted to work during scheduled off-duty hours or during the 12 consecutive off-duty hours must be paid one and one-half times the regular rate of pay for all such hours worked. See California IWC Wage Order No. 15-2001 §3(A).
Moreover, no live-in employee shall be required to work more than five (5) days in any one workweek without a day off of not less than 24 consecutive hours except in an emergency. See California IWC Wage Order No. 15-2001 §3(B).
2. Rest And Meal Periods:
Household workers are entitled to a ten-minute paid rest break for every four (4) hours of work under California IWC Wage Order No. 15-2001 §12(A), and a thirty-minute meal period of every five (5) hours worked, just like others kinds of employees, under California IWC Wage Order No. 15-2001 §11(A).
Otherwise, the employer shall pay the employee one (1) hour of pay at regular rate for each workday that the rest period, or the meal period is not provided. See California IWC Wage Order No. 15-2001 §§12(B), 11(D). But "personal attendants" are not granted rest and meal periods.
3. Meal And Housing Deductions From Wages:
The employer may subtract meal and housing credits from the employee's paycheck if:
(a) the employee actually uses the meals and is provided with housing;
(b) meals and housing are used as salary to comply with the minimum wage; and
(c) the employee executes a voluntary, written agreement, crediting meals and housing towards minimum wage.
Meal credit may be deducted as follows: breakfast - $2.45; lunch - $3.35, and dinner - $4.50. Housing may also be credited at $31.75 per week for a room ($26.20 if shared). See California IWC Wage Order No. 15 - 2001 §10(C).
In summary, whether you are a caregiver or a "personal attendant" entitled to particular wages and benefits in California or in other states depends on whether the general household work you do exceeds 20% of your total work time.
(The Author, Roman P. Mosqueda, practices wage and hour law in California.
This article is not legal advice, and no attorney-client relationship is formed with the reader. For specific labor law issues, consult a competent attorney.)
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Thursday, June 3, 2010
Bankruptcy and Strategic Default
Bankruptcy is an option many people are turning to in this dire economy. A new wave of filings are being attributed to the "strategic default" strategy many home owners are employing.
Strategic default refers to a default/foreclosure of a house that homeowners believe will not grow in value for a long time. These homes are often owned by professionals who see their homes as money pits instead of smart investment. For these people, they believe giving up the home and starting fresh is the best strategy for them. A good bankruptcy attorney is essential for such maneuvers. The current buyers market is a great time for professionals to invest in real estate. House Prices have reached a 10 year low and are expected to bottom out soon.
The Law Office of Roman P. Mosqueda is a full service law firm that has been around for over 30 years. If you are interested in learning more about bankruptcy please watch this 2 min youtube video:
Bankruptcy 101 Tutorial Video
Or call our offices for a free consultation: at (213) 252 - 9481
Learn more at: www.MosquedaLaw.com
Strategic default refers to a default/foreclosure of a house that homeowners believe will not grow in value for a long time. These homes are often owned by professionals who see their homes as money pits instead of smart investment. For these people, they believe giving up the home and starting fresh is the best strategy for them. A good bankruptcy attorney is essential for such maneuvers. The current buyers market is a great time for professionals to invest in real estate. House Prices have reached a 10 year low and are expected to bottom out soon.
The Law Office of Roman P. Mosqueda is a full service law firm that has been around for over 30 years. If you are interested in learning more about bankruptcy please watch this 2 min youtube video:
Bankruptcy 101 Tutorial Video
Or call our offices for a free consultation: at (213) 252 - 9481
Learn more at: www.MosquedaLaw.com
Thursday, April 8, 2010
Bankrupcy Video
The bankruptcy video just went live and we are already generating interest with it. We will continue the series with videos on most of the major topics of law.
Here is a link to the bankruptcy video:
[ Video ]
Here is a link to the bankruptcy video:
[ Video ]
Thursday, April 1, 2010
PROPOSED HUD RULE PROHIBITS SELLER-FINANCING WITHOUT LICENSE EXCEPT FOR FAMILY OR OWN RESIDENCE
PROPOSED HUD RULE PROHIBITS SELLER-FINANCING WITHOUT LICENSE EXCEPT FOR FAMILY OR OWN RESIDENCE
By:
Roman P. Mosqueda, B.S., LL.B., LL.M., S.J.D.
“The Secure and Fair Enforcement Mortgage Licensing Act of 2008 (SAFE Act), as a key component of the Housing and Economic Recovery Act of 2008 (Pub.L.110-289) enacted into law on July 30, 2008, directs all States to adopt licensing and registration systems for loan originators that comply with the minimum standards set by the SAFE Act.
The Department of Housing and Urban Development (HUD) is charged by the SAFE Act with establishing and implementing a system for mortgage loan originators in States that do not meet the minimum requirements of the statute.
So, HUD published its proposed Rule on the minimum standards under the SAFE ACT that States need to comply with in licensing loan originators, procedures and actions, as well as its enforcement authority in the Federal Register, Vol. 74, No. 239,
December 15, 2009.
Moreover, HUD proposes “to clarify or interpret certain statutory provisions that pertain to the scope of the SAFE Act licensing requirements, and other requirements that pertain to the implementation, oversight, and enforcement responsibilities of the States.”
The HUD proposed Rule, if codified as a Final Rule or regulation, would eliminate the business strategy of acquiring and reselling properties through seller financing without being licensed as a loan originator, unless: (1.) an individual offers or negotiates terms of a residential mortgage loan with or on behalf of a member of his or her immediate family; or (2.) an individual seller provides financing to a buyer pursuant to the sale of the seller’s own residence.
Proposed Rule Prohibiting
Seller Financing Deprives
Owners Of Property Rights
Under The 14TH Amendment:
One of the cherished rights of U.S. citizens is property rights protected by the 14th Amendment of the Constitution from any state action without due process of law, which allows owners to dispose of their properties in any way they see fit.
One of their property rights is to sell their properties through seller financing to assist buyers who cannot qualify for bank loans. The usury provision (Article 15) of the California Constitution prohibits loan-shaking activities, charging in excess of 10 percent per annum, unless exempted by a finance lender’s license.
Requiring owners of residential income properties to be licensed as loan originators in order to sell such properties through seller-financing directly to buyers interferes with property rights of owners.
The proposed Rule seeks to eliminate property rights exercised by property owners through centuries in favor of more regulations and of banks at the expense of home buyers with bad credit.
Proposed Rule Impairs
Obligations Of Existing
Contracts Protected By
The Constitution:
The contract is the law among the parties. A property owner has the right to sell his or her property, including seller-financing to enable a buyer short on cash to consummate the sale.
Seller-financing likewise enables a seller to sell his or her properties faster, and earn income during the duration of the promissory note being financed.
The proposed Rule would impair obligations of existing contracts in cases involving contracts to sell with seller-financing, lease with option to buy with seller-financing, and other similar contracts.
Proposed Rule §3400.13 Requires
Individuals To Be Licensed
By States With Exemptions:
§3400.13(e) of the proposed Rule provides that a State is not required to impose the prohibitions: (a) from “engaging in the business of a loan originator with respect to any dwelling or residential real estate in the State, unless the individual first registers and obtains and maintains a valid loan originators license for the State; and (d) complies with the same requirements in the case of an independent contracts engaging in residential mortgage loan origination, if: “(4) an individual who offers or negotiates terms of a residential mortgage loan with or on behalf of an immediate family member of the individual; and (5) any individual who only offers or negotiates terms of a residential mortgage loan secured by a dwelling that served as the individual’s residence.”….(underscoring supplied)
Loopholes To Proposed Rule:
A loophole to the proposed Rule is for the seller, who is amenable to seller financing of a residential income property, to hire the services of a licensed loan originator to offer or negotiate terms of a residential mortgage loan to a prospective buyer.
Another loophole is to retain “a licensed attorney who only negotiates the terms of a residential mortgage loan on behalf of a client as an ancillary matter to the attorney’s representation of the client,” and who is not “compensated by a lender, a mortgage broker, or other mortgage loan originator or by any agent” thereof, pursuant to §3400.13(e)(6) of the proposed Rule.
Conclusion:
The proposed Rule, prohibiting seller-financing without loan originator license except for family or one’s own residence, should not be codified into regulation because it deprives owners of their property rights to indulge in seller-financing, and it impairs obligations of existing contracts.
If it is found to be within the constitutional rule-making power of the Congress delegated to HUD, and not an over-reaching regulation beyond the scope of the SAFE Act, the loopholes of hiring a licensed loan originator or licensed attorney are available to owners willing to do seller-financing.
(The Author, Roman P. Mosqueda, is a licensed real estate broker and licensed attorney in California, practicing real estate law among other areas of law.
For any comments, please e-mail to rpm_law@yahoo.com, or call (213) 252-9481, or visit his website at www.mosquedalaw.com.
This article is not legal advice, but for information only. If the reader has specific issues on seller-financing, he or she should consult with a competent real estate attorney or broker.)
By:
Roman P. Mosqueda, B.S., LL.B., LL.M., S.J.D.
“The Secure and Fair Enforcement Mortgage Licensing Act of 2008 (SAFE Act), as a key component of the Housing and Economic Recovery Act of 2008 (Pub.L.110-289) enacted into law on July 30, 2008, directs all States to adopt licensing and registration systems for loan originators that comply with the minimum standards set by the SAFE Act.
The Department of Housing and Urban Development (HUD) is charged by the SAFE Act with establishing and implementing a system for mortgage loan originators in States that do not meet the minimum requirements of the statute.
So, HUD published its proposed Rule on the minimum standards under the SAFE ACT that States need to comply with in licensing loan originators, procedures and actions, as well as its enforcement authority in the Federal Register, Vol. 74, No. 239,
December 15, 2009.
Moreover, HUD proposes “to clarify or interpret certain statutory provisions that pertain to the scope of the SAFE Act licensing requirements, and other requirements that pertain to the implementation, oversight, and enforcement responsibilities of the States.”
The HUD proposed Rule, if codified as a Final Rule or regulation, would eliminate the business strategy of acquiring and reselling properties through seller financing without being licensed as a loan originator, unless: (1.) an individual offers or negotiates terms of a residential mortgage loan with or on behalf of a member of his or her immediate family; or (2.) an individual seller provides financing to a buyer pursuant to the sale of the seller’s own residence.
Proposed Rule Prohibiting
Seller Financing Deprives
Owners Of Property Rights
Under The 14TH Amendment:
One of the cherished rights of U.S. citizens is property rights protected by the 14th Amendment of the Constitution from any state action without due process of law, which allows owners to dispose of their properties in any way they see fit.
One of their property rights is to sell their properties through seller financing to assist buyers who cannot qualify for bank loans. The usury provision (Article 15) of the California Constitution prohibits loan-shaking activities, charging in excess of 10 percent per annum, unless exempted by a finance lender’s license.
Requiring owners of residential income properties to be licensed as loan originators in order to sell such properties through seller-financing directly to buyers interferes with property rights of owners.
The proposed Rule seeks to eliminate property rights exercised by property owners through centuries in favor of more regulations and of banks at the expense of home buyers with bad credit.
Proposed Rule Impairs
Obligations Of Existing
Contracts Protected By
The Constitution:
The contract is the law among the parties. A property owner has the right to sell his or her property, including seller-financing to enable a buyer short on cash to consummate the sale.
Seller-financing likewise enables a seller to sell his or her properties faster, and earn income during the duration of the promissory note being financed.
The proposed Rule would impair obligations of existing contracts in cases involving contracts to sell with seller-financing, lease with option to buy with seller-financing, and other similar contracts.
Proposed Rule §3400.13 Requires
Individuals To Be Licensed
By States With Exemptions:
§3400.13(e) of the proposed Rule provides that a State is not required to impose the prohibitions: (a) from “engaging in the business of a loan originator with respect to any dwelling or residential real estate in the State, unless the individual first registers and obtains and maintains a valid loan originators license for the State; and (d) complies with the same requirements in the case of an independent contracts engaging in residential mortgage loan origination, if: “(4) an individual who offers or negotiates terms of a residential mortgage loan with or on behalf of an immediate family member of the individual; and (5) any individual who only offers or negotiates terms of a residential mortgage loan secured by a dwelling that served as the individual’s residence.”….(underscoring supplied)
Loopholes To Proposed Rule:
A loophole to the proposed Rule is for the seller, who is amenable to seller financing of a residential income property, to hire the services of a licensed loan originator to offer or negotiate terms of a residential mortgage loan to a prospective buyer.
Another loophole is to retain “a licensed attorney who only negotiates the terms of a residential mortgage loan on behalf of a client as an ancillary matter to the attorney’s representation of the client,” and who is not “compensated by a lender, a mortgage broker, or other mortgage loan originator or by any agent” thereof, pursuant to §3400.13(e)(6) of the proposed Rule.
Conclusion:
The proposed Rule, prohibiting seller-financing without loan originator license except for family or one’s own residence, should not be codified into regulation because it deprives owners of their property rights to indulge in seller-financing, and it impairs obligations of existing contracts.
If it is found to be within the constitutional rule-making power of the Congress delegated to HUD, and not an over-reaching regulation beyond the scope of the SAFE Act, the loopholes of hiring a licensed loan originator or licensed attorney are available to owners willing to do seller-financing.
(The Author, Roman P. Mosqueda, is a licensed real estate broker and licensed attorney in California, practicing real estate law among other areas of law.
For any comments, please e-mail to rpm_law@yahoo.com, or call (213) 252-9481, or visit his website at www.mosquedalaw.com.
This article is not legal advice, but for information only. If the reader has specific issues on seller-financing, he or she should consult with a competent real estate attorney or broker.)
LAND TRUST IN CALIFORNIA
LAND TRUST IN CALIFORNIA
By:
Roman P. Mosqueda, B.S., LL.B., LL.M., & S.J.D.
In California, general trust law is found in the Probate Code §§15000-19403. There is no specific land trust statute in California, unlike Illinois land trust law, (765 ILCS 405/410/415/420), Massachusetts business trust (MBT) law (M.G.L.c.182, §2), and Virginia land trust law (Va. Code Sec. 55-17.1).
So, land trusts created in California for California property are based on general trust law in the aforesaid California Probate Code.
But an out-of-state land trust may be formed that would hold title through the trustee of a California property, to take advantage of more beneficial land trust statute and case law of another state. Indeed, the Virginia Supreme Court in Air Power, Inc v. Thompson, 244 Va. 534, 422 S.E. 2nd 786 (1992), has confirmed that Va. Code Sec. 55-17.1 gives the trustee of a land trust both legal and equitable power of the real property, which protects the privacy of the beneficiaries.
Indeed, since California does not have a specific land trust statute, there is no legislative history nor developed case law on land trust in this state, only California general trust law and case law.
But a general trust law may have some advantages over a specific land trust statute with more requirements. Indeed, Illinois land trust statute (75 ILCS 435) requires that holders of power of direction owe fiduciary duties to holders of the beneficial interest in land trust. California trust law does not have a similar requirement.
In any event, the avoidance of probate over a real property in a land trust trumps all difficulties in the creation of a land trust.
I. California Genereal Trust Law:
A. Creation Of Trust:
California Probate § 15000 states that “(t)his division (Division 9 of the Probate Code) shall be known and may be cited as the Trust Law.” And § 15001(a) states that “(e)xcept as otherwise provided by statute: This division applies to all trusts regardless of whether that were created before, on, or after July 1, 1987.”
Among other methods of creating trust, a trust may be created by: “(b) (a) transfer of property by the owner during the owner’s lifetime to another person as trustee,” under § 15200(b) of the California Probate Code. And “a trust is created only if there is trust property,” under § 15202 thereof.
“A trust may be created for any purpose that is not illegal or against public policy,” under § 15203 thereof. A land trust is not for an illegal purpose, nor is it against public policy in California, although it is not widely used in this state.
And “a trust, other than a charitable trust, is created only if there is a beneficiary,” under § 15205 thereof.
B. Trust Of Real Property And Personal Property:
So as not to violate the Statute of Frauds, which requires a written instrument to be enforceable, §15206 states that “a trust is relation to real property is not valid unless evidenced by one of the following methods: (b) By a written instrument conveying the trust properly signed by the settlor, or by the settlor’s agent if authorized in writing to do so.”
And under § 15207 (a) thereof, “(t)he existence and terms of an oral trust of personal property may be established only by clear and convincing evidence.” Under § 1528 thereof, “consideration is not required to create a trust….”
Lastly, “a trust created pursuant to this chapter (1, part 2, Division 9 of the Probate Code) which relates to real property may be recorded in the office of the county recorder in the county where all or a portion of the real property is located,” under § 15210 thereof.
II. Mechanics Of A Land Trust:
A. Advantages And Benefits:
(1.) Privacy:
One of the much heralded advantages of a land trust is that a grant deed-in-trust of a trust property in the name of a different trustee (private or institutional) may be recorded with the County Recorder, but the land trust agreement that states the names of the truster/settlor/investor and the beneficiaries is not recorded.
Thus, the creator/grantor of the land trust: trustor/settlor who invests in real property can keep his/her/its name, as well as the names of the beneficiaries out of the County Recorder’s and County Assessor’s books, and to a certain extent hide the investment from public view.
But a judgment creditor of a trustor/settlor or of a beneficiary can subject the latter to answer written interrogatories on his/her/its assets, or to debtor’s examination under oath in court to determine assets, and not merely rely on County Recorder and Assessor asset searches.
The land trust agreement may also use a name for the land trust different from the name of the trustor/settlor who created the land trust. This is another asset protection benefit.
And if the beneficiary of the land trust is also the same trustor/settlor, the latter may designate his/her living trust or wholly-owned limited liability company as the beneficiary to hopefully avoid gift tax issues.
(2.) Avoidance Of Probate:
Moreover, just like successor trustees may be designated in the land trust agreement, successor beneficiaries may also be selected to avoid disruptions in distribution of trust assets at termination of the trust, outside of probate proceedings.
A land trust may be created as revocable (terms of the land trust agreement may be changed) or irrevocable (cannot be changed), but the latter requires the filing of separate tax returns and is taxed at a higher rate than the trustor/settlor’s individual tax rate, unless considered a simple trust in which all incomes created are taxed to beneficiaries.
For federal income tax implications, if the grantor/trustor is also the beneficiary the Internal Revenue Service (IRS) classifies it as a grantor trust that has tax consequences that flow directly to the trustor’s Form 1040 and state return.
(B.)Disadvantages And Pitfalls:
(1.) Separtate Land Trust Agreement For Each Property:
In order to preserve the privacy of the investment or transaction and the asset protection benefits of the land trust, only one real estate property can be listed as held in the land trust.
Thus, a different land trust agreement is created for each property. This could be cumbersome, although the same trustor/settlor, trustee, and beneficiary can be named in each land trust agreement
(a) Simpler Alternatives:
Simpler alternatives are to purchase investment or rental properties through a limited partnership (LP) or a limited liability company (LLC), or transfer such properties to a more flexible living trust that does not require the filing of separate tax returns, or transfer the ownership interests of an LLC (not title of the property) to a living trust.
An LLC may also create a land trust by conveying title of a property to the trustee, and designate itself (LLC) as the beneficiary for privacy of ownership.
Sometimes less is more; for indeed, creditors can see through and have recourse against avoidance of execution of judgment on properties through asset protection schemes. And transfers of ownerships of properties may result in tax assessments.
(The Author, Roman P. Mosqueda, is a licensed real estate broker who has practiced real estate and probate law for more than 15 years, among other areas of law practice.
This article is meant for information only, and not legal advice. If the reader has specific issues on land trust and probate, he/she should consult with a competent real estate/probate attorney.
Comments and questions may be e-mailed to rpm_law@yahoo.com, or call (213) 252-9481.)
By:
Roman P. Mosqueda, B.S., LL.B., LL.M., & S.J.D.
In California, general trust law is found in the Probate Code §§15000-19403. There is no specific land trust statute in California, unlike Illinois land trust law, (765 ILCS 405/410/415/420), Massachusetts business trust (MBT) law (M.G.L.c.182, §2), and Virginia land trust law (Va. Code Sec. 55-17.1).
So, land trusts created in California for California property are based on general trust law in the aforesaid California Probate Code.
But an out-of-state land trust may be formed that would hold title through the trustee of a California property, to take advantage of more beneficial land trust statute and case law of another state. Indeed, the Virginia Supreme Court in Air Power, Inc v. Thompson, 244 Va. 534, 422 S.E. 2nd 786 (1992), has confirmed that Va. Code Sec. 55-17.1 gives the trustee of a land trust both legal and equitable power of the real property, which protects the privacy of the beneficiaries.
Indeed, since California does not have a specific land trust statute, there is no legislative history nor developed case law on land trust in this state, only California general trust law and case law.
But a general trust law may have some advantages over a specific land trust statute with more requirements. Indeed, Illinois land trust statute (75 ILCS 435) requires that holders of power of direction owe fiduciary duties to holders of the beneficial interest in land trust. California trust law does not have a similar requirement.
In any event, the avoidance of probate over a real property in a land trust trumps all difficulties in the creation of a land trust.
I. California Genereal Trust Law:
A. Creation Of Trust:
California Probate § 15000 states that “(t)his division (Division 9 of the Probate Code) shall be known and may be cited as the Trust Law.” And § 15001(a) states that “(e)xcept as otherwise provided by statute: This division applies to all trusts regardless of whether that were created before, on, or after July 1, 1987.”
Among other methods of creating trust, a trust may be created by: “(b) (a) transfer of property by the owner during the owner’s lifetime to another person as trustee,” under § 15200(b) of the California Probate Code. And “a trust is created only if there is trust property,” under § 15202 thereof.
“A trust may be created for any purpose that is not illegal or against public policy,” under § 15203 thereof. A land trust is not for an illegal purpose, nor is it against public policy in California, although it is not widely used in this state.
And “a trust, other than a charitable trust, is created only if there is a beneficiary,” under § 15205 thereof.
B. Trust Of Real Property And Personal Property:
So as not to violate the Statute of Frauds, which requires a written instrument to be enforceable, §15206 states that “a trust is relation to real property is not valid unless evidenced by one of the following methods: (b) By a written instrument conveying the trust properly signed by the settlor, or by the settlor’s agent if authorized in writing to do so.”
And under § 15207 (a) thereof, “(t)he existence and terms of an oral trust of personal property may be established only by clear and convincing evidence.” Under § 1528 thereof, “consideration is not required to create a trust….”
Lastly, “a trust created pursuant to this chapter (1, part 2, Division 9 of the Probate Code) which relates to real property may be recorded in the office of the county recorder in the county where all or a portion of the real property is located,” under § 15210 thereof.
II. Mechanics Of A Land Trust:
A. Advantages And Benefits:
(1.) Privacy:
One of the much heralded advantages of a land trust is that a grant deed-in-trust of a trust property in the name of a different trustee (private or institutional) may be recorded with the County Recorder, but the land trust agreement that states the names of the truster/settlor/investor and the beneficiaries is not recorded.
Thus, the creator/grantor of the land trust: trustor/settlor who invests in real property can keep his/her/its name, as well as the names of the beneficiaries out of the County Recorder’s and County Assessor’s books, and to a certain extent hide the investment from public view.
But a judgment creditor of a trustor/settlor or of a beneficiary can subject the latter to answer written interrogatories on his/her/its assets, or to debtor’s examination under oath in court to determine assets, and not merely rely on County Recorder and Assessor asset searches.
The land trust agreement may also use a name for the land trust different from the name of the trustor/settlor who created the land trust. This is another asset protection benefit.
And if the beneficiary of the land trust is also the same trustor/settlor, the latter may designate his/her living trust or wholly-owned limited liability company as the beneficiary to hopefully avoid gift tax issues.
(2.) Avoidance Of Probate:
Moreover, just like successor trustees may be designated in the land trust agreement, successor beneficiaries may also be selected to avoid disruptions in distribution of trust assets at termination of the trust, outside of probate proceedings.
A land trust may be created as revocable (terms of the land trust agreement may be changed) or irrevocable (cannot be changed), but the latter requires the filing of separate tax returns and is taxed at a higher rate than the trustor/settlor’s individual tax rate, unless considered a simple trust in which all incomes created are taxed to beneficiaries.
For federal income tax implications, if the grantor/trustor is also the beneficiary the Internal Revenue Service (IRS) classifies it as a grantor trust that has tax consequences that flow directly to the trustor’s Form 1040 and state return.
(B.)Disadvantages And Pitfalls:
(1.) Separtate Land Trust Agreement For Each Property:
In order to preserve the privacy of the investment or transaction and the asset protection benefits of the land trust, only one real estate property can be listed as held in the land trust.
Thus, a different land trust agreement is created for each property. This could be cumbersome, although the same trustor/settlor, trustee, and beneficiary can be named in each land trust agreement
(a) Simpler Alternatives:
Simpler alternatives are to purchase investment or rental properties through a limited partnership (LP) or a limited liability company (LLC), or transfer such properties to a more flexible living trust that does not require the filing of separate tax returns, or transfer the ownership interests of an LLC (not title of the property) to a living trust.
An LLC may also create a land trust by conveying title of a property to the trustee, and designate itself (LLC) as the beneficiary for privacy of ownership.
Sometimes less is more; for indeed, creditors can see through and have recourse against avoidance of execution of judgment on properties through asset protection schemes. And transfers of ownerships of properties may result in tax assessments.
(The Author, Roman P. Mosqueda, is a licensed real estate broker who has practiced real estate and probate law for more than 15 years, among other areas of law practice.
This article is meant for information only, and not legal advice. If the reader has specific issues on land trust and probate, he/she should consult with a competent real estate/probate attorney.
Comments and questions may be e-mailed to rpm_law@yahoo.com, or call (213) 252-9481.)
Family Limited Partnership (FLP) For Estate Planning And Asset Protection: Benefical Or Risky?
Family Limited Partnership (FLP) For Estate Planning And Asset Protection: Benefical Or Risky?
By:
Roman P. Mosqueda, B.S., LL.B., LL.M., S.J.D.
If you have assets of $1,000,000 (or even less in certain circumstances) to contribute, and still retain other assets sufficient to support you for the remainder of your life, you may consider forming and operating a family limited partnership (FLP) among members of your family.
Yes, a FLP is only for wealthy persons, who have significant assets and can afford to pay thousands of attorney’s fees to set it up, defray expert’s valuation costs, as well as bankroll operating expenses to properly maintain it.
It can be as simple as husband and wife-donors creating a FLP with $1,000,000 or less worth of assets, whether real estate such as rental property (but not primary residence), cash, securities, business interests, etc.
As general partners in a FLP, the husband and wife may hold ten (10) percent general partnership interest and ninety (90) per cent limited liability interest.
The husband and wife, as general partners retaining general partnership interest, may then transfer limited partnership units, representing the remaining 90% of the partnership interests to their children.
I. Benefits Of A FLP:
A. Control Over Transferred Assets:
The FLP operating agreement governs the administration, management, investment, and distribution of income and assets upon termination. It can also restrict the transfer of partnership units or interests to others.
The general partners-parents would have management and investment control over the partnership assets to the exclusion of limited partners-children.
More importantly, the general partners decide when and how much of partnership income may be distributed to partners. They can also prohibit the transfer of partnership units or interests outside of the family.
The general partners may further form an irrevocable trust to which their general partnership interests would be transferred and administered by an independent trustee, or form an entity as the general partner managed by an independent fiduciary.
B. Discounted Valuation Of Gifts To Children:
Parents are allowed to give tax-free gifts to children or grandchildren valued at $12,000 (or $24,000 of split gift by both parents) each year.
These annual gifts may take the form of limited partnership units in a FLP, thereby taking advantage of the annual $12,000 gift-tax exclusion to lower estate taxes.
In the context of a FLP, the parents can further take advantage of gift and estate tax valuation rules on minority interests, resulting in lack of control, as well as lack of marketability (non-liquidity) to reduce transfer taxes.
A valuation expert may determine a 20 percent discount in value to a partnership unit given as a gift, due to lack of control, as well as another 20 percent discount due to lack or marketability. Such discounts cannot normally be done in a gift of similar value given outright to children.
The estate values of the partnership units belonging to the parents may also be reduced by aforesaid discounts, resulting in reduced estate taxes when they pass way.
C. Income-Tax Benefits:
A FLP, as a partnership, is a pass-through mechanism, whereby partnership deductions and incomes are charged directly to the partners, general and limited, and taxed at their individual tax rates.
Thus, a FLP allows the shifting of the proportionate share of the partnership’s income from the parents’ relatively higher tax rate to the lower income tax rates of the children with limited incomes.
Moreover, a FLP may make income distributions to limited partners-children to assist them in paying income taxes attributed to the FLP.
D. Asset Protection Benefits:
Another benefit of a FLP is asset protection of general and limited partners from their creditors, seeking to execute judgments against the underlying partnership assets. But the lack of business purpose of a FLP may cause the court to pierce its veil, and find it an alter-ego of the general partners.
Indeed, general and limited partners own only general or limited partnership units or interests (personal property) in a FLP. They do not own directly the (real or personal property) of the FLP.
Limited partnership interests may be gifted to minor children through irrevocable children’s trust that would provide additional asset protection from the general partner-donor’s and children’s creditors.
II. RISKS OF A FLP:
A. Court Determination That Assets Transferred To A
FLP Are Includable In Parent’s Gross Estate:
A FLP would not work as discussed above, if a court determines that a FLP is not created, implemented, and operated correctly, that is, an implied agreement existed that the parents-general partners would retain lifelong enjoyment and economic benefit of the FLP assets.
The Internal Revenue Service (IRS) seeks to show no discount in gift valuation, as well as to include in a parent-donor’s gross estate assets transferred to a FLP, pursuant to Internal Revenue Code § 2036(a), which allows only a bona fide sale exemption.
Indeed, a FLP is vulnerable if it does not have a legitimate business purpose, not have business property as assets, nor a non-tax purpose. Avoidance of gift or reduction of estate and income taxes may be found to be insufficient rationale for its existence.
B. Lack Of Step-up In Cost Basis For Partnership
Asset At Death Of General Partner:
If an asset with low cost basis is transferred to a FLP, the owner-parent relinquishes the potential step-up in basis at the parent’s death. If an asset has been fully depreciated and/or highly appreciated, a FLP may not be advantageous at all, even risky, because of the inability to use the original cost basis of the asset.
Indeed, transfers of assets to a FLP result in transfer taxes, which could have been avoided, as well as the resulting inability to pass on to heirs the asset with a full step-up cost basis.
III. Conclusion:
A Family Limited Partnership (FLP) presents complex issues and pitfalls of gift valuations, inclusions of transferred assets to donor’s gross estate, tax burdens, and applications of the criteria for bona fide sale at fair market value.
As a vehicle for estate planning and asset protection, a FLP is meant for wealthy individuals, who are not faint at heart and willing to spend for their proper set up, funding, implementation, active management, and operation.
(The Author, Roman P. Mosqueda, has practiced partnership and family law for over 15 years in California.
This article is meant for information only, and is not legal advice. If the reader has specific issues on family limited partnership, he or she is well-advised to consult with a competent attorney and an accountant.)
# # # #
By:
Roman P. Mosqueda, B.S., LL.B., LL.M., S.J.D.
If you have assets of $1,000,000 (or even less in certain circumstances) to contribute, and still retain other assets sufficient to support you for the remainder of your life, you may consider forming and operating a family limited partnership (FLP) among members of your family.
Yes, a FLP is only for wealthy persons, who have significant assets and can afford to pay thousands of attorney’s fees to set it up, defray expert’s valuation costs, as well as bankroll operating expenses to properly maintain it.
It can be as simple as husband and wife-donors creating a FLP with $1,000,000 or less worth of assets, whether real estate such as rental property (but not primary residence), cash, securities, business interests, etc.
As general partners in a FLP, the husband and wife may hold ten (10) percent general partnership interest and ninety (90) per cent limited liability interest.
The husband and wife, as general partners retaining general partnership interest, may then transfer limited partnership units, representing the remaining 90% of the partnership interests to their children.
I. Benefits Of A FLP:
A. Control Over Transferred Assets:
The FLP operating agreement governs the administration, management, investment, and distribution of income and assets upon termination. It can also restrict the transfer of partnership units or interests to others.
The general partners-parents would have management and investment control over the partnership assets to the exclusion of limited partners-children.
More importantly, the general partners decide when and how much of partnership income may be distributed to partners. They can also prohibit the transfer of partnership units or interests outside of the family.
The general partners may further form an irrevocable trust to which their general partnership interests would be transferred and administered by an independent trustee, or form an entity as the general partner managed by an independent fiduciary.
B. Discounted Valuation Of Gifts To Children:
Parents are allowed to give tax-free gifts to children or grandchildren valued at $12,000 (or $24,000 of split gift by both parents) each year.
These annual gifts may take the form of limited partnership units in a FLP, thereby taking advantage of the annual $12,000 gift-tax exclusion to lower estate taxes.
In the context of a FLP, the parents can further take advantage of gift and estate tax valuation rules on minority interests, resulting in lack of control, as well as lack of marketability (non-liquidity) to reduce transfer taxes.
A valuation expert may determine a 20 percent discount in value to a partnership unit given as a gift, due to lack of control, as well as another 20 percent discount due to lack or marketability. Such discounts cannot normally be done in a gift of similar value given outright to children.
The estate values of the partnership units belonging to the parents may also be reduced by aforesaid discounts, resulting in reduced estate taxes when they pass way.
C. Income-Tax Benefits:
A FLP, as a partnership, is a pass-through mechanism, whereby partnership deductions and incomes are charged directly to the partners, general and limited, and taxed at their individual tax rates.
Thus, a FLP allows the shifting of the proportionate share of the partnership’s income from the parents’ relatively higher tax rate to the lower income tax rates of the children with limited incomes.
Moreover, a FLP may make income distributions to limited partners-children to assist them in paying income taxes attributed to the FLP.
D. Asset Protection Benefits:
Another benefit of a FLP is asset protection of general and limited partners from their creditors, seeking to execute judgments against the underlying partnership assets. But the lack of business purpose of a FLP may cause the court to pierce its veil, and find it an alter-ego of the general partners.
Indeed, general and limited partners own only general or limited partnership units or interests (personal property) in a FLP. They do not own directly the (real or personal property) of the FLP.
Limited partnership interests may be gifted to minor children through irrevocable children’s trust that would provide additional asset protection from the general partner-donor’s and children’s creditors.
II. RISKS OF A FLP:
A. Court Determination That Assets Transferred To A
FLP Are Includable In Parent’s Gross Estate:
A FLP would not work as discussed above, if a court determines that a FLP is not created, implemented, and operated correctly, that is, an implied agreement existed that the parents-general partners would retain lifelong enjoyment and economic benefit of the FLP assets.
The Internal Revenue Service (IRS) seeks to show no discount in gift valuation, as well as to include in a parent-donor’s gross estate assets transferred to a FLP, pursuant to Internal Revenue Code § 2036(a), which allows only a bona fide sale exemption.
Indeed, a FLP is vulnerable if it does not have a legitimate business purpose, not have business property as assets, nor a non-tax purpose. Avoidance of gift or reduction of estate and income taxes may be found to be insufficient rationale for its existence.
B. Lack Of Step-up In Cost Basis For Partnership
Asset At Death Of General Partner:
If an asset with low cost basis is transferred to a FLP, the owner-parent relinquishes the potential step-up in basis at the parent’s death. If an asset has been fully depreciated and/or highly appreciated, a FLP may not be advantageous at all, even risky, because of the inability to use the original cost basis of the asset.
Indeed, transfers of assets to a FLP result in transfer taxes, which could have been avoided, as well as the resulting inability to pass on to heirs the asset with a full step-up cost basis.
III. Conclusion:
A Family Limited Partnership (FLP) presents complex issues and pitfalls of gift valuations, inclusions of transferred assets to donor’s gross estate, tax burdens, and applications of the criteria for bona fide sale at fair market value.
As a vehicle for estate planning and asset protection, a FLP is meant for wealthy individuals, who are not faint at heart and willing to spend for their proper set up, funding, implementation, active management, and operation.
(The Author, Roman P. Mosqueda, has practiced partnership and family law for over 15 years in California.
This article is meant for information only, and is not legal advice. If the reader has specific issues on family limited partnership, he or she is well-advised to consult with a competent attorney and an accountant.)
# # # #
EFFECTS OF BANKRUPTCY DISCHARGE
EFFECTS OF BANKRUPTCY DISCHARGE
By:
Roman P. Mosqueda, B.S., LL.B., LL.M., & S.J.D.
A debtor filed Chapter 7 bankruptcy petition through this Author, seeking to discharge secured and unsecured claims of creditors.
A Section 341(a) meeting of creditors (actually an examination under oath of the debtor by the appointed trustee, with creditors welcomed to attend, but not required to do so) was conducted by the bankruptcy trustee, attended by the debtor and this Author. All listed and scheduled creditors must receive at least 30 days’ advanced notice of the creditors’ meeting, under Bankruptcy Rule 4007(c).
After several months, the assigned Bankruptcy Judge issued a discharge order, discharging the debtor from all personal liability for any and all secured and unsecured claims listed in the bankruptcy petition schedules. Secured creditors can foreclose on the security interest or collateral in case of debtor’s default.
Discharge Injunction Against
Personal Liability Of Debtor:
The discharge order carries the discharge injunction of 11 U.S.C. §524(a)(2)-(3), “which operates against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any debt as a personal liability of the debtor, whether or not discharge of such debt is waived.”
Indeed, the discharge injunction under aforesaid Bankruptcy Code section 524(a)(2)-(3) effectively prevents or terminates any collection action against the debtor that holds him personally liable, except for recourse against the security interest or collateral by a secured creditor.
State Court Cannot Modify
Discharge Injunction Or Its Effects:
In McGhan v. Rutz (In re McGhan), 288 F3d 1172 (9th Cir. 2002), the Ninth Circuit held that “…the state court (where the civil action was filed to collect on the discharged debt) lacked authority to modify the bankruptcy court’s orders discharging Rutz’s claim and permanently enjoining Rutz from collecting on the debt.”
Thus, the aforesaid discharge injunction is permanent and remains in effect indefinitely.
Moreover, the Ninth Circuit concluded that “it was an abuse of discretion for the bankruptcy court to decline to reopen McGhan’s bankruptcy case…” (because it) was required to reopen the proceedings to protect its exclusive jurisdiction over the enforcement of its own orders.”
Discharge Injunction Applied
To Attachment Lien:
In a state action for collection against a client of this Author, the plaintiff jewelry company applied for ex parte and was granted a writ of attachment, attaching certain interests of the defendant, including her ownership interest in a condominium in Torrance, California.
After this Author had filed the defendant’s answer to the complaint in the Superior Court action, the defendant decided to file Chapter 7 bankruptcy petition. She retained this Author to do so.
The filing of the Chapter 7 petition resulted in an automatic stay of the state action, pursuant to Bankruptcy Code section 362. Plaintiff, a listed and scheduled creditor, filed its motion for relief from automatic stay with the Bankruptcy Court. It was opposed by written Response by this Author, on behalf of the debtor in bankruptcy.
After oral arguments at the hearing on the motion for relief from automatic stay, Los Angeles Bankruptcy Judge Vincent P. Zurzolo denied the motion on December 11, 2008. So, Plaintiff was unable to lift the automatic stay and obtain a judgment in the state action.
On July 22, 2009, the Bankruptcy Court issued its order of discharge of debtor under 11 U.S.C. §727. The exception to the discharge is: “a creditor has a right to enforce a valid lien, such as a mortgage or security interest, against the debtor’s property after the bankruptcy.”
Attachment Lien Not Perfected
By Judgment Before Discharge:
In Diamant v. Kasparian (In Re Southern California Plastics, Inc), 165 F.3d 1243, 1246 (9th Cir. 1999), the Ninth Circuit held that: “(a)ttachement liens are solely creatures of state statutory law…California law requires a judgment for perfection” (of an attachment lien).
It warned that: “(p)ermitting an allowance of claim (in the bankruptcy case) to substitute for a judgment perfecting an attachment lien undermines the rights and protections created by the California Legislature.”
So, the failure of the Plaintiff discussed above to obtain a judgment in the state action to perfect its attachment lien before the discharge order of the Bankruptcy Court resulted in an unsecured claim discharged in the Chapter 7 bankruptcy petition.
State Court Declined To Apply Discharge
Injunction And Proceeded With State Action:
This Author’s first motion to dismiss the state action because of the discharge injunction was denied without prejudice by the Hon. Irving Shimer, who honestly stated at the hearing that he was not sure of his ruling. So, the state action proceeded to discovery despite the discharge order and permanent injunction.
But since the denial was without prejudice, this Author, on behalf of the defendant-debtor, filed her second motion to dismiss and argued that “(d)enial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial, citing Farber v. Bay View Terrace Homeowners Ass’n., 46 Cal. Rptr.3d. 425 (App. 4 Dist. 2006).
A new Los Angeles Superior Court Judge, the Hon. Michelle I. Rosenblatt, also declined to apply the discharge injunction of the Bankruptcy Code. And the state action for collection proceeded to judgment against the defendant-debtor already discharged in bankruptcy.
The consolation to the defendant-debtor who did not appeal the judgment, nor reopen the bankruptcy case is that: she is a retired widow over 65 years old and does not have sufficient equity in her ownership interest on the co-owned condominium, over and beyond her $150,000 homestead exemption from judgment execution.
*****
(The Author, Roman P. Mosqueda, has practiced bankruptcy law for over ten years, among other areas of law. For comments or questions on this article, please call at (213) 252-9481 or e-mail to rpm_law@yahoo.com, or visit www.mosquedalaw.com.
This article is not legal advice, but is for information only. The reader with a specific problem is advised to consult a competent bankruptcy attorney.)
By:
Roman P. Mosqueda, B.S., LL.B., LL.M., & S.J.D.
A debtor filed Chapter 7 bankruptcy petition through this Author, seeking to discharge secured and unsecured claims of creditors.
A Section 341(a) meeting of creditors (actually an examination under oath of the debtor by the appointed trustee, with creditors welcomed to attend, but not required to do so) was conducted by the bankruptcy trustee, attended by the debtor and this Author. All listed and scheduled creditors must receive at least 30 days’ advanced notice of the creditors’ meeting, under Bankruptcy Rule 4007(c).
After several months, the assigned Bankruptcy Judge issued a discharge order, discharging the debtor from all personal liability for any and all secured and unsecured claims listed in the bankruptcy petition schedules. Secured creditors can foreclose on the security interest or collateral in case of debtor’s default.
Discharge Injunction Against
Personal Liability Of Debtor:
The discharge order carries the discharge injunction of 11 U.S.C. §524(a)(2)-(3), “which operates against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any debt as a personal liability of the debtor, whether or not discharge of such debt is waived.”
Indeed, the discharge injunction under aforesaid Bankruptcy Code section 524(a)(2)-(3) effectively prevents or terminates any collection action against the debtor that holds him personally liable, except for recourse against the security interest or collateral by a secured creditor.
State Court Cannot Modify
Discharge Injunction Or Its Effects:
In McGhan v. Rutz (In re McGhan), 288 F3d 1172 (9th Cir. 2002), the Ninth Circuit held that “…the state court (where the civil action was filed to collect on the discharged debt) lacked authority to modify the bankruptcy court’s orders discharging Rutz’s claim and permanently enjoining Rutz from collecting on the debt.”
Thus, the aforesaid discharge injunction is permanent and remains in effect indefinitely.
Moreover, the Ninth Circuit concluded that “it was an abuse of discretion for the bankruptcy court to decline to reopen McGhan’s bankruptcy case…” (because it) was required to reopen the proceedings to protect its exclusive jurisdiction over the enforcement of its own orders.”
Discharge Injunction Applied
To Attachment Lien:
In a state action for collection against a client of this Author, the plaintiff jewelry company applied for ex parte and was granted a writ of attachment, attaching certain interests of the defendant, including her ownership interest in a condominium in Torrance, California.
After this Author had filed the defendant’s answer to the complaint in the Superior Court action, the defendant decided to file Chapter 7 bankruptcy petition. She retained this Author to do so.
The filing of the Chapter 7 petition resulted in an automatic stay of the state action, pursuant to Bankruptcy Code section 362. Plaintiff, a listed and scheduled creditor, filed its motion for relief from automatic stay with the Bankruptcy Court. It was opposed by written Response by this Author, on behalf of the debtor in bankruptcy.
After oral arguments at the hearing on the motion for relief from automatic stay, Los Angeles Bankruptcy Judge Vincent P. Zurzolo denied the motion on December 11, 2008. So, Plaintiff was unable to lift the automatic stay and obtain a judgment in the state action.
On July 22, 2009, the Bankruptcy Court issued its order of discharge of debtor under 11 U.S.C. §727. The exception to the discharge is: “a creditor has a right to enforce a valid lien, such as a mortgage or security interest, against the debtor’s property after the bankruptcy.”
Attachment Lien Not Perfected
By Judgment Before Discharge:
In Diamant v. Kasparian (In Re Southern California Plastics, Inc), 165 F.3d 1243, 1246 (9th Cir. 1999), the Ninth Circuit held that: “(a)ttachement liens are solely creatures of state statutory law…California law requires a judgment for perfection” (of an attachment lien).
It warned that: “(p)ermitting an allowance of claim (in the bankruptcy case) to substitute for a judgment perfecting an attachment lien undermines the rights and protections created by the California Legislature.”
So, the failure of the Plaintiff discussed above to obtain a judgment in the state action to perfect its attachment lien before the discharge order of the Bankruptcy Court resulted in an unsecured claim discharged in the Chapter 7 bankruptcy petition.
State Court Declined To Apply Discharge
Injunction And Proceeded With State Action:
This Author’s first motion to dismiss the state action because of the discharge injunction was denied without prejudice by the Hon. Irving Shimer, who honestly stated at the hearing that he was not sure of his ruling. So, the state action proceeded to discovery despite the discharge order and permanent injunction.
But since the denial was without prejudice, this Author, on behalf of the defendant-debtor, filed her second motion to dismiss and argued that “(d)enial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial, citing Farber v. Bay View Terrace Homeowners Ass’n., 46 Cal. Rptr.3d. 425 (App. 4 Dist. 2006).
A new Los Angeles Superior Court Judge, the Hon. Michelle I. Rosenblatt, also declined to apply the discharge injunction of the Bankruptcy Code. And the state action for collection proceeded to judgment against the defendant-debtor already discharged in bankruptcy.
The consolation to the defendant-debtor who did not appeal the judgment, nor reopen the bankruptcy case is that: she is a retired widow over 65 years old and does not have sufficient equity in her ownership interest on the co-owned condominium, over and beyond her $150,000 homestead exemption from judgment execution.
*****
(The Author, Roman P. Mosqueda, has practiced bankruptcy law for over ten years, among other areas of law. For comments or questions on this article, please call at (213) 252-9481 or e-mail to rpm_law@yahoo.com, or visit www.mosquedalaw.com.
This article is not legal advice, but is for information only. The reader with a specific problem is advised to consult a competent bankruptcy attorney.)
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Roman P. Mosqueda
Graduated from Michigan Law School with both an LLM and SJD. For more information check out www.MosquedaLaw.com
