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Wednesday, August 5, 2015

Written agreements for unmarried couples in California



Written agreements for unmarried couples in California are the topic of this blog post.

Any unmarried couples in California that are living together should consider the use of a written agreement detailing their rights and obligations to each other.  This type of written agreement is known by several names including a living together agreement and a Cohabitation Agreement.

The main reason for unmarried couples to consider using a living together agreement is the simple fact that most unmarried couples that start living together and set up a household generally will have their own separate expectations regarding their finances and what their obligations to each other are, or will be.  

The basic problem is that most unmarried couples exhibit a lack of communication as to their expectations and that can lead to serious trouble down the road for the simple reason that one partner may expect that each partner will retain their own separate property, and that neither of them will be obligated to support the other partner in the event that they end their relationship. However the other partner may have exactly the opposite expectation. If the couple ends their relationship, these conflicting expectations can lead to tremendous distress and unhappiness in the lives of both partners.

Consider a hypothetical situation where one partner is much wealthier than the other partner, and the relationship breaks up. The wealthier partner may be served with a lawsuit by the other partner for what is commonly known as "palimony", with the other partner claiming that the wealthier partner promised that they would support him or her for life, and/or that all property acquired during the relationship would belong to both partners equally in the event that the relationship ended.

If there is no written agreement governing their rights and obligations, the wealthier partner could be found legally obligated and ordered by a court to divide their property with and/or pay support to the other partner, even if a desire to avoid these obligations was the very reason they did not marry their partner in the first place.

This situation is both quite common and particularly relevant in the State of California which is one of the most litigious States in the United States and is also where the term “palimony” was first used in reference to the landmark California Supreme Court case of Marvin v. Marvin (1976) 18 Cal.3d 660, 674.

To use another common example, one partner may have quit their job to make a home for their partner, who in return promised that they would always be "taken care of," only to find when they break up that all of the assets acquired "together" are in the other partner's name, and the other partner is denying that he or she ever made any promises to their partner.

In the State of California as well as some other States, the courts do generally enforce most agreements between unmarried cohabitants regarding their property. These agreements fall into three categories: implied, oral, and written. Written agreements that are signed by both parties, while they may not be perfect are still much more effective compared to oral and implied agreements in terms of providing the parties with some measure of certainty. Having a written document helps insure that the partners and not a future jury will determine exactly what the terms of the agreement are. They also provide each partner with an opportunity to communicate and clarify their expectations of each other.

To avoid any misunderstandings, both partners should discuss their expectations regarding financial matters before they move in together. When they do, they may find out that the two of them have very different understandings as to what their understanding really is.

Once both partners have talked through the issues and reached a mutual understanding, they should put that agreement in writing.

Attorneys or parties in California who would like to view a portion of a 12 page sample Cohabitation Agreement sold by the author can see below. 



 
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.”

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.



Over 300 sample legal documents for sale


Sample legal documents for California and Federal litigation available for sale. Over 300 sample documents are available. All documents are in Microsoft Word format and include answers, complaints, demurrers, motions to dismiss, motions to quash, motions to strike, motions to compel, interrogatories, requests for admission and more! The author of these sample documents is Stan Burman, an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995.

Friday, May 29, 2015

Homeowner rights during foreclosure in California



Homeowner rights during foreclosure in California are the topic of this blog post.   


Even though the great majority of foreclosures in California are non-judicial, California homeowner’s do have certain rights which were greatly strengthened when the California legislature passed and the Governor signed the legislation that is commonly known as The Homeowner’s Bill of Rights.

The California statutes that comprise the HBOR are based at least to some extent on the National Mortgage Servicing Settlement that was entered into between the attorney’s generals of the various states and the five largest mortgage servicers in February of 2012. The HBOR became effective on January 1, 2013 and includes sunset provisions for certain statute that will expire on  January 1, 2018 although many of the obligations imposed on mortgage servicers will continue beyond that date.

The HBOR has resulted in some major changes in the non-judicial process in California in that it provides important protections to California homeowners by imposing new requirements on mortgage servicers. The changes in the foreclosure process in California required by the HBOR statutes are listed below.

The first and most important change is that the HBOR requires new notices to borrowers under Civil Code section 2923.55, which both expands the existing pre-foreclosure notice requirements and prohibits a servicer from recording a notice of default until it has informed the borrower of their right to request copies of documents proving the mortgage servicer’s right to foreclose and that the borrower may be entitled to protections under the Servicemembers’ Civil Relief Act.  In addition Civil Code § 2924(a)(5) requires a written notice to the borrower after the postponement of a foreclosure sale for more than 10 business days although a failure to comply is not grounds to invalidate an otherwise valid sale. 

The HBOR also imposes a ban on the widely despised practice known as “dual tracking” as mortgage servicers in California must now place a pending foreclosure on hold and not proceed any further while a “complete” first lien loan modification application is pending, on appeal, or while the borrower is in compliance with an approved loan modification agreement.  A loan modification application is “complete” when the borrower has submitted all required documents “within the reasonable timeframes” set by the servicer.  See Civil Code §§ 2923.6, 2924.11, 2924.18.

Any servicer that services mortgages in California that conduct more than 175 foreclosures per year in California are required to provide a single point of contact by assigning a single individual or team of individuals with knowledge of the loan and status of the possible loan modification and must be available to the borrower as to such things as the loan status, foreclosure prevention options available and the coordination of documentation. A decision maker must also be available to a borrower.   These provisions are found in Civil Code § 2923.7.

Another important change is the provision in the HBOR that allows a homeowner to require any mortgage servicer to document their right to foreclose.  The Act also clearly states that an entity cannot record a notice of default or otherwise initiate the foreclosure process unless it the holder of the beneficial interest under the deed of trust, the original or substituted trustee, or the designated agent of the holder of the beneficial interest.  See Civil Code § 2924(a)(6).

The widespread practice known as “robo-signing” is now banned as representatives of a financial institution or servicer may not process foreclosure documents without verifying them for accuracy.  See Civil Code § 2925.17.

Mortgage servicers are now required to have loss mitigation procedures under the HBOR as it states that unless a borrower has previously exhausted the first lien loan modification process, within five business days of recording a notice of default, servicers that conduct more than 175 foreclosures per year in California must send a written notice advising the borrower regarding foreclosure prevention alternatives pursuant to Civil Code § 2924.9.  Receipt of an application for loan modification or any other documents must be acknowledged within five business days pursuant to Civil Code § 2924.10.  If a loan modification is denied, the servicer must provide information regarding the time to in which to appeal the denial and any reason(s) for the denial pursuant to Civil Code § 2923.6.

California homeowner’s that may be in foreclosure proceedings or are seriously delinquent on their mortgage payments will find the HBOR provides some very welcome relief from an otherwise confusing and frustrating non-judicial foreclosure process.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.



If you are in need of assistance with any California or Federal litigation matters including foreclosure defense, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
 


*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.


Tuesday, May 5, 2015

What can I do about an asset that was not listed in my divorce decree or judgment in California

Assets that were not listed in any divorce decree or judgment in California





Sometime parties in California that have already had a dissolution (divorce) judgment in California  discover an omitted asset many weeks or months later and wonder what their options are.  This blog post discusses the issue of assets or liabilities that were not listed in any divorce decree or judgment in California. These are what is known as omitted assets.

A party can request that the court adjudicate any assets or liabilities that were not mentioned in the judgment of divorce as those assets were not previously adjudicated in the judgment of dissolution of marriage and in most cases were never mentioned in any documents filed with the court or any court orders. The request is filed under the provisions of Family Code section 2556. by the filing of a notice of motion or request for order. 

A request filed under Family Code section 2556 is most often filed in divorce cases but can also be filed in a legal separation or nullity case in California.

If you use this request in the right situations it is very powerful as there are no time limitation specified in the statute although in my personal opinion you should file the motion as soon as possible after discovering the omitted asset or liability is a good idea. I also want to point out that the court will most likely deny any request if you have already filed another motion or request with the court under another code section or legal theory that mentions the omitted asset and the court has denied that request

Family Code § 2556 states that,

“In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability.”

Before this code section was enacted into California law the courts allowed a former spouse to file a separate partition action to divide any assets that were omitted from a divorce judgment. 

Any community estate asset or liability that was not mentioned in the judgment should most likely be considered an omitted asset.

Both the California Supreme Court and the California Courts of Appeal have stated that the doctrine of res judicata does not prevent the division of community property assets that were not adjudicated in any prior judgment.

The California Supreme Court has also stated that the entitlement of a spouse to a share of any community property arises at the time that the property is acquired and any property which is not mentioned in the judgment or any of the pleadings is considered unadjudicated by any judgment and is therefore subject to further legal proceedings as the former spouses are considered tenants in common until the asset can be adjudicated.

The moving party should make a sufficient showing that the omitted asset or liability is in fact a community estate asset or liability as the asset was acquired or the liability was incurred during the marriage.  The California Supreme Court has stated that any property acquired by purchase during the marriage is presumed to be community property.

Attorneys or parties in California that would like to view a portion of a sample 11 page motion to adjudicate an omitted asset under Family Code section 2556 containing brief instructions, a memorandum of points and authorities and sample declaration sold by the author can use the link below. 


The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.



If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.


*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.



Tuesday, April 28, 2015

How can I fight my eviction in California

Wednesday, April 15, 2015

Demanding release of mechanic's lien in California



Demanding the release of a mechanic’s lien in California is the topic of this blog post.  


A California demand for release of mechanic’s lien is sent pursuant to the provisions of Civil Code section 8102. The demand letter must be served on the party that recorded the lien at least 10 days before any petition for release of mechanic’s lien is filed.

The party demanding the release of the mechanic’s lien should wait until at least 90 days have passed since the date that the mechanic’s lien was recorded with the county recorder. The demand letter should only be sent once at least 90 days have passed since the date that the mechanic’s lien in situations where  the person or entity that recorded the lien has not filed any complaint to foreclose on the mechanic’s lien.  The reason for waiting at least 90 days is that Civil Code § 8460(a) states that the mechanics lien expires and is unenforceable after 90 days unless the recording party has filed a complaint to foreclose on the mechanic’s lien.

The demand letter should list the date that the mechanic’s lien was recorded along with the complete document number and the county where the mechanic’s lien was recorded. It should also list the complete street address and the full legal description of the real property including the assessor’s parcel number.

The demand should be served by personal delivery, certified or registered mail with return receipt requested, express mail or overnight delivery using Federal Express or other overnight delivery company pursuant to Civil Code § 8110.

The letter should demand that the lien be released within ten (10) calendar days from the date that the notice is served or the demanding party will file a petition with the Court for an order releasing the mechanics lien and ordering them to pay reasonable attorney’s fees and costs involved in filing the petition.

I need to emphasize that if the demand letter does not contain the required information or is not served correctly that can result in the court denying any petition for release of the mechanic’s lien and ordering the party that filed the petition to pay for the attorney’s fees and costs of the prevailing party.

Attorneys or parties in California that would like to view a sample demand letter for release of mechanic’s lien created by the author available for free download can see below.


The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.





Saturday, April 4, 2015

Modifying child custody and visitation orders in California



Modifying child custody and visitation orders in California is the topic of this blog post.  

There are several statutes and cases that outline the standards used and the burden of proof that must be met by the party moving for modification.

California law states that child custody and visitation orders generally are modifiable throughout the child's minority whenever the court finds a modification is "necessary or proper" in the child's best interests. See Family Code § 3022.

And at least one California Court of Appeal has stated that a family law court has continuing jurisdiction over child custody and visitation matters such that they remain pending even after entry of a dissolution or legal separation or nullity judgment in California.

Although the statutes governing custody adjudications only require courts to ascertain the child's best interest, the best interest standard takes on a new meaning once a "final" judicial custody determination is in place: A party seeking to modify a "permanent" custody order can do so only it they make a sufficient showing of a significant change of circumstances that affect the child to such a degree that modification is essential to the child's welfare.  

While the party seeking a modification of child custody must make a showing of changed circumstances in many cases, there are exceptions to this rule that should be carefully considered and reviewed by any party contemplating requesting that the Court modify a child custody and/or visitation orders in California.

For instance the changed circumstances rule is triggered only after a "final" or "permanent" custody adjudication. If a custody order is only an interim or temporary order than the ordinary best interest standard applies.

In order to encourage parties to enter into custody stipulations, any doubts about whether the parties intended a stipulated custody order to be a "final" or "permanent" custody adjudication will be resolved against finality and against application of the changed circumstances rule in any subsequent proceedings to modify the stipulated order.

Any stipulated order will be considered to be temporary or interim in nature unless the stipulated order clearly states that it is a final judgment as to the issue of custody.

As to physical custody, the changed circumstances rule applies when the modification request seeks to remove custody from one parent and give it to the other. By contrast, no change of circumstances need be shown as a prerequisite to altering only the co-parenting schedule (the amount of time the child spends in each parent's household) under a joint custody order. Proposed changes in parenting time are "not on a par with a request to change physical custody from sole to joint custody, or vice versa"; the only standard the moving parent must meet in such cases is the child's best interest.

So long as the joint custody award itself is not being changed, the court has very broad discretion to revise the "coparenting residential arrangement" where the parents are unable to agree and call upon the court to intervene. 

And the changed circumstances rule does not apply when a parent requests only a modification of the visitation arrangement (whether in a joint custody or sole custody situation). Because such a modification does not change "custody," the trial court considers a visitation modification solely under the child's best interests standard. 

Attorneys or parties in California that would like to view a portion of a sample 13 page motion for modification of child custody and visitation containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can see below.


The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.



If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.


*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.





Thursday, April 2, 2015

Opposing a motion for order taxing costs in California

Opposing a motion for an order taxing costs in California




Opposing a motion for an order taxing costs in California is the topic of this blog post.  Any parties that wish to oppose a motion for an order taxing costs should file and serve their opposition to the motion at least nine (9) court days before the hearing pursuant to Code of Civil Procedure section 1005(b) and should serve their opposition by overnight delivery, personal service or other means authorized by Code of Civil Procedure section 1005(c).

Any party served with a motion for an order taxing costs or striking costs should carefully review the motion and supporting documents to determine the grounds for the opposition.

The first possible ground for opposition would be that the motion was untimely as California Rule of Court 3.1700(b)(1) states in pertinent part that,

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.”

Thus any motion for an order striking or taxing costs in California must be served no later than 15 days after service of the memorandum of costs although that deadline is extended to 20 days if the memorandum of costs was served by mail.

Another possible ground for opposition would be that the motion does not comply with the provisions of California Rule of Court 3.1700(b)(2) which states that,

“Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.”

Therefore unless the party seeking to strike or tax costs is objecting to the entire memorandum of costs their objections must be made by the same number and appear in the same order as the cost items appear on the memorandum of costs. They must also state why that particular item is objectionable. This is a common ground for opposition as many motions to strike or tax costs do not state sufficient facts to demonstrate that the cost item that is objected to was not properly claimed.

Several decisions of the California Courts of Appeal have stated that a properly verified memorandum of costs is prima facie evidence that the items listed are properly claimed and the party objecting to those costs must make a sufficient showing that the items listed were neither reasonable nor necessary in that particular case and that mere allegations or contentions without more is not a sufficient showing.

A California Court of Appeal has stated that copies of bills, invoices or similar documents substantiating the claimed costs are not required to be attached to the memorandum of costs.

At least two California Court of Appeals have stated that the issue of whether any particular item on a cost memorandum was reasonable or necessary is a question of fact.

Attorneys or parties in California that would like to view a portion of a 14 page sample opposition to motion to tax or strike costs containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can see below. 





The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.



If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.


*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Objections to proof of claim in United States Bankruptcy Court



Objections to a proof of claim filed in United States Bankruptcy Court are the topic of this blog post.  The United States Bankruptcy law states that any party in interest may file an objection to any proof of claim filed in a Bankruptcy case.  All debtors in Chapter 13 cases are considered a party in interest and have the right to file an objection to any proof of claim filed in their case.  Debtors in other cases such as Chapter 7 may or may not be considered as a party in interest depending on their case.

It is vitally important to properly object to any claims filed in a Bankruptcy case that is not timely filed, is defective for failure to comply with Bankruptcy law requirements or is defective in any other way or relates to any debt the amount or existence of which is disputed. The reason for this is that Bankruptcy law states that unless a party in interest objects any claim filed is deemed allowed.

It is therefore critical that all proofs of claim be carefully reviewed to determine if there are valid grounds for filing an objection. The pertinent law is 11 U.S.C. § 502(a) which states in pertinent part that, any claim filed “is deemed allowed, unless a party in interest . . . objects.” The burden is on the party filing the objection to prove to the Court that the claim is not valid and should not be paid.

In particular a debtor or their attorney should carefully review any proof of claim filed to determine if the claim was timely filed as Federal Rule of Bankruptcy Procedure 3002(c) requires most proofs of claim to be filed no later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code.

It should be noted that Federal Rule of Bankruptcy Procedure 3001 contains numerous detailed requirements for each specific type of proof of claim and the proof of claim should be carefully reviewed to determine if it meets the strict requirements of Rule 3001.

Any objection to a proof of claim should be filed and served as soon as it has been determined that there are valid grounds for filing an objection.

Some of the more common grounds for objecting to a proof of claim are:

The creditor failed to attach sufficient documentation to prove that a debt is owed;

The amount of the claim is incorrect;

The same claim was filed more than once;

The claim was not filed in a timely manner;

The classification of the claim as secured or priority is incorrect, and

The claim states improper interest amounts or fees.

Anyone who wishes to file and serve an objection to a proof of claim should consult the local rules for their particular Bankruptcy Court and/or call the clerk of the Court as most of them have their own specific rules and procedures for objections to a proof of claim. 

Attorneys or parties that would like to view a portion of a sample objection to a proof of claim created and sold by the author of this blog post can see below. 



The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.



If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.


*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.









Most important reasons for hiring a virtual paralegal



The most important reasons for hiring a virtual paralegal are the topic of this blog post. 

A virtual paralegal is generally defined as an individual that maintains a virtual office and provides legal research and document preparation services.

Retaining the services of a virtual paralegal allows attorneys and law firms the best of both worlds in that they can obtain the services of someone experienced in both legal research and document preparation including answers, complaints and more.   

There are also other major benefits which I have listed below.

NO training costs!
NO unemployment taxes!
NO Social Security taxes!
NO Worker's Compensation Insurance!
NO sick time or vacation pay!
NO retirement or health plans!
NO more paying for idle time!
NO workspace issues as virtual paralegals work from home or an office!
NO overtime!

The challenges of the modern economy have resulted in the legal profession becoming a constantly evolving practice the result of which is increased work requiring more and more of an attorney's time. Virtual and freelance paralegal jobs are one resource that more and more attorneys and law firms are utilizing particularly with the current economic situation that is resulting in downsizing at many law firms. Paralegals working as virtual or freelance contractors are available for short or long-term projects depending on the needs of a particular client.

Most virtual or freelance paralegals have a wide range of experience allowing them to assist attorneys on a variety of projects. For instance I have worked in California and Federal litigation since 1995 in many diverse areas of the law and have collected unpaid California Court judgments since 1992.

Because a virtual paralegal career covers a variety of different assignments, they aren't necessarily
restricted to specific work environments. Solo attorneys’ who work on their own, maintain a virtual office or that have started new law offices find the extra support offered by virtual paralegal employment quite helpful. It can be expensive to hire paralegal work through traditional methods such as temporary legal staffing agencies especially if there isn't enough work to keep the paralegal busy all the time. With the use of modern technology a freelance paralegal does not even need to travel to a lawyer’s office as documents can be scanned and e-mailed to them, or can be uploaded to a file storage site or the increasingly popular “cloud” sites. This frees up billable time, makes good use of an attorney's time and adds value to their practice.

Even in a fully staffed office, there are times when unplanned employee absences result in a backlog of work. A virtual paralegal can provide the necessary coverage without a large commitment. The great thing about virtual paralegals is that they often have years of experience and can be a valuable asset to any law office.

The author of this post, Stan Burman, has collected unpaid California judgments since 1992 and has also worked in California and Federal litigation since 1995 as a freelance paralegal. Anyone with an unpaid judgment of at least $20,000.00 entered in the State of California or that is involved in California or Federal litigation that is interested in retaining the services of Mr. Burman can contact him at DivParalgl@yahoo.com for more information. Visit his blog at http://www.legaldocspro.net/blog

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

View sample legal document packages for sale at: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this post is NOT intended to constitute legal advice.

The materials and information contained in this post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.


Tuesday, March 31, 2015

Claiming prejudgment costs after judgment in California



Claiming prejudgment costs after a judgment in California are the topic of this blog post.  Claiming prejudgment costs after a judgment in California is accomplished by the filing and service of a verified memorandum of costs by the prevailing party entitled to costs.

The law in California states that a memorandum of costs must be verified by the party or their attorney and must be served and filed within a specified deadline. However I do need to emphasize that because each case has different circumstances the actual deadline for any particular case depends on a variety of factors which will be discussed below.

The deadline in California to file and serve a memorandum of costs is stated in California Rule of Court 3.1700(a)(1) which states in pertinent part that, "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first."

Code of Civil Procedure § 664.5 states that,

“(a) In any contested action or special proceeding other than a small claims action or an action or proceeding in which a prevailing party is not represented by counsel, the party submitting an order or judgment for entry shall prepare and mail a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and shall file with the court the original notice of entry of judgment together with the proof of service by mail. This subdivision does not apply in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation.

(b) Promptly upon entry of judgment in a contested action or special proceeding in which a prevailing party is not represented by counsel, the clerk of the court shall mail notice of entry of judgment to all parties who have appeared in the action or special proceeding and shall execute a certificate of such mailing and place it in the court’s file in the cause.

(c) For purposes of this section, “judgment” includes any judgment, decree, or signed order from which an appeal lies.

(d) Upon order of the court in any action or special proceeding, the clerk shall mail notice of entry of any judgment or ruling, whether or not appealable.

(e) The Judicial Council shall, by January 1, 1999, adopt a rule of court for the purposes of providing that, upon entry of judgment in a contested action or special proceeding in which a state statute or regulation has been declared unconstitutional by the court, the Attorney General is promptly notified of the judgment and that a certificate of that mailing is placed in the court’s file in the cause.”

However I cannot stress enough that in order for a clerk’s notice of entry of judgment to trigger the 15-day deadline it must comply with Code of Civil Procedure § 664.5. In some cases a clerk will simply mail a file-stamped copy of the judgment with something attached known as a “Certificate of Mailing” which does not satisfy the “service pursuant to court order” requirement of subdivision of Code of Civil Procedure § 664.5 and as a result fails to start the 15-day clock as has been stated by the California Supreme Court in at least two cases.

Attorneys or parties in California should carefully review any notice of entry of judgment served by the clerk to determine whether or not the clerk has served a notice of entry of judgment that fully complies with the provisions of Code of Civil Procedure § 664.5 including a statement that document mailed by the clerk is being given upon “order of the court" or "under section 664.5. If the clerk fails to do so and no other party serves and files a notice of entry of judgment the deadline to file and serve a memorandum of costs is 180 days after entry of judgment.

To view over 300 sample legal documents created by the author of this blog post visit: View over 300 sample legal documents for sale

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://www.legaldocspro.net/newsletter.htm for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.








Sunday, March 29, 2015

Motion to correct clerical error in judgment in California



A motion to correct a clerical error in a judgment in California is the topic of this blog post.  

A motion to amend a judgment in California to correct a clerical error is filed pursuant to Code of Civil Procedure section 473(d). This motion is used to correct inadvertence or errors in recording the judgment. However it should be noted that it cannot be used to contest the intended terms of the judgment. The motion can also request that the judgment be amended nunc pro tunc as of the date the original judgment was entered.

A motion to amend a judgment in California to correct a clerical error is filed on the grounds that the recorded terms of the judgment do not agree with the outcome indicated when the judgment was initially declared. This motion is a very limited tool as it is authorized to be used only to correct clerical errors.

However a trial court is given very broad discretion in classifying such errors as an omission or mistake in a judgment; a misdescription in a judgment, inadvertence in signing a faulty judgment, and an ambiguity in a judgment.

The characterization of an error in a judgment as clerical rather than judicial is critical as a clerical error can be corrected at any time, sua sponte by the court or on a motion from one of the parties, even years after the case has closed. But a judicial error can be only corrected on a motion for new trial or on a motion to vacate and enter a new judgment.

Thus the party who is seeking to persuade the court that the error was merely clerical must be very careful and also aware of how to properly characterize the error, and be sure that the error is in fact clerical and not judicial.

However it should also be noted that there are many instances in which an omission or mistake in a judgment has been characterized as a clerical error. These instances include:

An omission in the determination of an account and decree of distribution involving the probate of an estate;

The failure to include a direction that one party pay another party's attorney's and accountant's fees when recording a judgment;

The failure of a judgment to clearly name the defendants, and to state their liability to the plaintiff, and

The California Supreme Court stated in a case decided over 75 years ago that California Courts have the power to correct clerical errors in their judgments at any time, regardless of how much time has passed since the error was made or the judgment entered. See Estate of Goldberg (1938) 10 C2d 709, 717. In that case the Supreme Court stated that a hearing and the resulting order nunc pro tunc correcting a clerical error in a decree of final distribution of an estate 35 years after the original entry was valid.

The California Supreme Court has also stated in a case decided over 40 years ago that all courts have the inherent power to enter an order entering a judgment nunc pro tunc All courts have the inherent power to enter orders for judgments nunc pro tunc so that the judgment will be held effective prior to the date on which it was actually entered.

Used in the right situations, a motion to amend a judgment to correct a clerical error can allow the moving party to correct a clerical error in a judgment, even if years or decades have passed since the date of the original judgment or decree. But the motion should only be used in the right situations.

Attorneys or parties in California who would like to view a portion of a 14 page sample motion to amend a judgment to correct a clerical error containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority; sample declaration, proposed order and proof of service by mail sold by the author can see below.



The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.