Monday, 12 November 2018

Right of Repossession

Right of Repossession

Perhaps you’ve heard of the “repossession man” or “repo guy” — a shadowy figure who creeps up to your house in the middle of the night to take your back your shiny new sports car because you’ve defaulted on your car loan. Sounds like something out of a bad network television show, but in reality, creditors do have rights of repossession in certain circumstances and they can send a person out to take possession of any items a consumer or business doesn’t pay for as agreed upon in the contract.

Here you will learn about the basics of creditor’s rights of repossession in secured debts including what repossession is, what property may subject to repossession, and much more.

Definition of Repossession

So what exactly is repossession and how does it happen? Repossession is a process wherein a creditor takes possession of specific property after the debtor defaults on a contract. As in the example above, a person buys a car and then doesn’t pay for it as they agreed to in the contract. The right of repossession is created by contract and can exist in many different types of transactions.

Note, creditors are allowed to repossess property in many circumstances because they are “secured creditors,” meaning the lenders have an ownership interest in the borrower’s property. These are typically car loans or home mortgages.

How Repossession Works

A creditor can start the repossession process almost immediately if the account goes into delinquency. At that point, a creditor contracts with a third-party service, the repossession person or business, to capture the property and sell it to satisfy the unpaid balance plus the costs of the sale and attorney’s fees.

The most notable part to this process is that the creditor does not need a court order to begin repossessing property. How can the creditor do this? Usually this is spelled out in the terms of the contract signed between the business and the buyer. Each state has different business laws specifying how much, if any, notice has to be given to the consumer, so it is always good to check the laws in your state first. The same is true for leased vehicles or business equipment – miss a payment and the property can be seized right away without a court order.

Breach of the Peace

While creditors have broad rights of repossession, they can’t use the repo man to “breach the peace” or break the law to retrieve on secured debts. Breach of the peace can mean a variety of things, so it is important to look to state laws to understand the meaning. But generally it means the repossessor can’t come onto your private property to take the property such as an enclosed garage, or into a fenced or locked area, without permission from the legal owner of the building or locked area.

However, that doesn’t mean you can hide the property away in a location that would make it impossible for the repossesor to enter. In fact, in many states hiding or concealing the vehicle to deprieve it from the legal owner can be a crime. The repossesor can, however, take items, such a car or motorcycle, if it is located in an unsecured driveway, street, parking lot, and other publicly accessible areas at any time of day or night.

Are Cars the Only Property Subject to Repossession?

No, in fact there are number of different types of items that can be repossessed by a creditor to satisfy the secured debt including:

  • Real estate (see home foreclosure below);
  • Jewelry;
  • Rent-to-own furniture or electronics;
  • Artwork; or
  • Any other tangible asset that can be sold.

Another form of repossession happens when a person defaults on a home loan. If a consumer can’t make their mortgage payments, the lender can repossess the home through a process known as foreclosure. When that happens, the lender will sell the property to recover as much of the outstanding loan balance as possible because the house is collateral for your debt.

What if a Person or Business Doesn’t Pay a Credit Card Bill?

Most credit card debt is known as an “unsecured debt,” meaning the creditor has no ownership interests in the property. If a person or business doesn’t pay their credit card bill after collection attempts have been made, the creditor will have to go to court to secure a judgment, meaning the repo man can’t just waltz up to your doorstep and take the goods.

Right of Repossession: Related Resources

  • Creditors Rights and Collection Options
  • Debt Collection
  • Do I Need a Collections Attorney?

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a repossession issue you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you with repossession matters.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Sunday, 11 November 2018

Children Who Smoke and Drink are Linked to Parents’ Divorce

Children Who Smoke and Drink are Linked to Parents’ Divorce

Researchers in a variety of studies have linked parents’ neglect, absence or divorce to bad behavior in their children, including smoking and drinking. Children who have lost a mother or father early in life (defined as before the age of seven) are far more likely to drink and smoke before or during their teen years, whether that loss was due to divorce, death or separation.

One study found that preteens who had lost a parent in some way were more than twice as likely to drink and smoke compared to children who had not had this experience. Many experts say that these behaviors are a coping mechanism and, in some cases, a form of self-medication.

The study involved an analysis of data from the UK Millennium Cohort Study, which tracked health information for children born between 2000 and 2002. Researchers collected information on the involvement of the father in each child’s care and development. A survey of children at age 11 asked whether they had smoked or drank before. Those who drank also were asked if they had ever felt drunk. Of the 11,000 children who responded, about 25 percent had lost a parent in some way before age seven.

Preteens who experienced the absence of a parent before age seven were more than twice as likely to begin smoking and approximately 46 percent more likely to begin drinking.

Parents should pay close attention to kids’ behavior

This is not to say that all children whose parents divorce early in lives will start abusing substances in their teenage years. What it does indicate is that parents must make a big effort to stay involved in their kids’ lives, especially if they have experienced a major life change at an early age.

Do You Have to Answer Every Question at a Divorce Deposition?

At a divorce deposition, the other party’s attorney will be given the chance to ask you questions on a wide variety of subjects related to your divorce. These topics could include your overall health, your employment history, and your fidelity during the marriage, any debts or assets you own and anything else that could factor into the divorce. Your spouse is not allowed to interrupt you or to attempt to correct anything you say during this meeting.

Any answers you provide be truthful and entirely accurate.

Prepare for all types of questions

In most cases, you will have to answer any question asked of you — unless your attorney advises you not to do so. To that end, you should be prepared for some potentially uncomfortable subjects.

Before your deposition, spend some time with your lawyer preparing for how you will handle these difficult questions, and exactly they types of questions you can expect. An experienced attorney will prevent you from answering any inappropriate questions that could hurt your case. If you have any doubts about whether you should or should not respond, turn to your legal counsel.

Keep in mind that a court reporter will keep a record of your deposition. The transcript of your deposition contains all questions and answers, along with any objections your attorney makes. You should practice answering questions with your lawyer before the deposition.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Taking Legal Action for Non-Payment of Invoices

Taking Legal Action for Non-Payment of Invoices

If you run a business, whether a major corporation or a sole proprietorship, one of the biggest headaches is not getting paid on time. Accounts receivable are the lifeblood of any operation and when that spigot turns off or even slows down, it can have a devastating impact.

Understanding your rights to take legal action for non-payment of invoices is an important part of ensuring the viability of your business. Below is a helpful primer on how the legal process can help you recover your losses.

Determine Your Damages and the Likelihood of Recovery

Before you initiate the legal process to collect a debt, you need to make an important business decision — is it worth the cost of litigation to pursue? As you weigh this decision, you’ll need to know what your damages are and whether the customer can pay up.

When determining damages, you’ll want to calculate all of the unpaid invoices and, if the customer was renting or buying goods or equipment, whether they were damaged in any way. If so, you can factor in repair costs and possibly other damages due to lost income from future rentals (this is more likely if you already have future rental agreements in place).

The next step is to examine the customer’s financial health by analyzing factors like:

  • Fixed assets (vehicles, equipment, machinery, etc.);
  • Cash on hand;
  • Liquid inventory;
  • Real property;
  • Corporate bonds/stock;
  • Notes receivables; and
  • Debts/liabilities.

If you’re dealing with a customer that doesn’t appear to likely to pay you back or is on the brink of bankruptcy, instead of litigation, you may want to consider selling the debt to a debt collection agency and moving on.

Make Your Formal Demand

If you decide to take legal action for non-payment of invoices, you initiate the process with a formal demand letter to the defendant, whether it be an individual or a business, or both. If the defendant is a business, but an individual signed a personal guaranty, you can make the demand on both.

In your demand letter, among other things, you’ll want to:

  • Identify how the customer is in default;
  • Identify how much is owed;
  • Demand payment of all past due amounts by a certain date; and
  • Advise of possible legal action.

File a Lawsuit and Seek Pre-Judgment Relief

The next step is to file and serve a complaint in a court with the proper jurisdiction. Typically this will be in the county where the transactions took place or where the defendant resides/operates.

After you file a complaint, there are ways to seek relief early on in the process. For example, you could apply for a writ of attachment or writ of possession to either place a lien on some of the defendant’s assets or to take possession of them (if they were collateral for your agreement). This can protect your ability to collect on a judgment while also pressuring the defendant to settle the case.

Finally, during the pre-trial phase of a case, you can utilize the discovery process to not only obtain evidence supporting your claims, but also to identify and locate a defendant’s assets which can help you enforce a judgment down the road.

Obtaining and Enforcing Judgments

You can typically obtain three types of judgments:

  1. Default judgment (where the defendant fails to answer the complaint or appear in the case);
  2. Summary judgment (obtained on a motion); or
  3. Judgment after trial.

Once a judgment is obtained, you can immediately start the process of enforcing it. Each state provides different types of judgment enforcement mechanisms, such as:

  • Judgment liens;
  • Abstracts of judgment (which can be used to place liens on real property); or
  • Writs of execution (which can be used to direct a sheriff to seize equipment or garnish cash assets held by the defendant).

Keep in mind that in many jurisdictions, your judgment may also include interest, attorney’s fees and court costs, all of which can be part of your judgment enforcement efforts.

Free Consultation with a Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Saturday, 10 November 2018

Violations of Child Custody and Visitation

Violations of Child Custody and Visitation

Child custody and visitation orders are legally binding arrangements that all parties must adhere to now and in the years to come. However, in some circumstances, a parent or relative may break the agreement by illegally visiting or keeping a child for an unpermitted amount of time. If this situation occurs, it is helpful to know how to handle it.

What to do if court orders are violated

If a child custody or visitation court order is broken, you may not be able to resolve the issue on your own. In fact, it is not recommended that you try to navigate these difficult situations alone. When you need assistance in returning your child back to his or her proper home, call the police. Officers will take appropriate actions to handle your issue, and make a record of the incident that took place. It is always in yours and your child’s best interest to report violations of custody and visitation orders.

Once the child has been returned to his or her legal guardian, it is important to notify your lawyer about the violation. Your lawyer will be able to discuss your legal options, as well as inform the other parent about possible consequences of their actions. If the non-custodial parent consistently violates court orders, you may need to file a motion for contempt of court.

While handling violations of child custody and visitation orders, remember to not bad-mouth your child’s parent in front of them. Though this may take effort after a violation of orders, talking negatively about a parent to a child will not be helpful if your situation goes to court.

Results of court order violations

If a parent disobeys a child custody or visitation court order, the custodial parent may choose to petition the court for enforcement of its terms. If a parent repeatedly violates court orders, they may be found to be in contempt of court. This may result in a total loss of custody or visitation rights or even jail time.

Why Courts Order Supervised Visitation

Under Utah law, courts decide custody and visitation matters in “the best interests of the child.” Generally, there is a presumption that frequent, meaningful contact with both parents is in the child’s best interest, so even if one party to a divorce can’t share custody, that parent gets regular visitation or parenting time. Visitation usually has few restrictions, detailed in the court-approved parenting plan, pertaining to times for pickups and drop-offs.  However, the court will deny visitation or order supervised visitation if the child’s physical or emotional well-being might be endangered.

In making that determination, the court considers evidence of:

  • Violence or threats of violence against the child
  • Emotional harm
  • The child’s request to limit or deny visits
  • A noncustodial parent’s mental illness or substance abuse
  • The emotional damage caused by visiting a parent in jail
  • A parent’s threats to abduct the child

Most supervised visitation orders are temporary. If the supervisor reports that there is no reason to fear for the child’s safety, the judge usually calls an end to supervision.

Free Consultation with Child Support Lawyer

If you have a question about child support or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Is it Legal to Copy Content from a Website?

Is it Legal to Copy Content from a Website

News stories, photos, and other online content often show up in multiple places, and sometimes it’s difficult to determine where the content originated. At first glance, it may seem as if it’s perfectly legal to copy content from a website. But is it? The short answer to this question is “no,” unless you’ve obtained the author’s permission.

In fact, virtually all digital content enjoys the same copyright protections as non-digital, “offline” content. Copying material from a website and posting it on another website or publishing it in a newsletter, for example, may violate the copyright of the person who developed the website. This article summarizes the legal protections of digital content found on the Internet.

Copyright Law

Anything that enjoys copyright protection, whether it’s rendered in ink or pixels, may not be copied or published elsewhere without the express (typically written) permission of the author. The information need not have a copyright notice or symbol associated with it to be copyrighted, since copyright protection arises as soon as an author creates an original work and fixes it in a tangible medium. The contents of a website are no different than the contents of a book or magazine in terms of copyright protection, even though web content is often seen as more “disposable” than works existing in a physical medium.

Also, any non-digital content that is protected by copyright law is automatically protected in its digital form as well. For example, a copyrighted novel published as a paperback will receive the same protection when it’s published as an e-book. In addition to online content, databases (both electronic and paper files) also enjoy copyright protection as long as they show a certain degree of creativity by the author, such as in its organization or selection.

The Legal Theory of Fair Use

Copyright law allows “fair use” of small parts of copyrighted works without the permission of the author. If the reproduction is for the purpose of criticism, news reporting, teaching, or research it is more likely to be fair use than if it is copied for commercial purposes. It is difficult to make this determination in advance, however, since they typically depend on a number of case-specific criteria. An example of fair use would be a book reviewer quoting a few lines from a book in an online book review.

The U.S. Copyright Office maintains a Fair Use Index to help attorneys and non-attorneys get a better understanding of how the courts have ruled on fair use claims.

Digital Millennium Copyright Act or DMCA

A federal law passed in 1998, the Digital Millennium Copyright Act (DMCA), makes it clear that materials published on the Internet are protected by U.S. copyright laws. The law makes some exceptions that are specific to Internet law. Internet service providers can escape liability for infringing the copyright of materials that merely pass through their computers, for example in email messages. If an Internet service provider removes infringing material promptly upon request, it also can escape liability.

Free Consultation with a Copyright Lawyer

If you are here, you probably have a copyright or trademark issue you need help with, call Ascent Law for your free intellectual property law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Friday, 9 November 2018

Separate Property in a Divorce

Separate Property in a Divorce

Division of property is a hotly debated topic in many divorces. A recent Appellate Division case defined an instance when separate property is not actually separate property.

In Utah, the assets and debt of the marital estate are subject to equitable distribution during divorce. When couples cannot agree on how to distribute their property, the court strives to divide it fairly, but not necessarily equally.

Property owned by either party prior to marriage is considered separate, unless it is commingled with the marital estate during the marriage. In Foti v. Foti, Paul Foti sought reversal of an earlier ruling that allowed Gina Foti to maintain certain properties and businesses as separate for purposes of their divorce.

In Utah, the law defines property as separate if it meets the following criteria:

  • The property is acquired before marriage or by gift or bequest.
  • Property is compensation for a personal injury.
  • Property is exchanged for separate property, except when efforts of the other spouse enhance the value of the asset.
  • The property is the subject of a written agreement between the parties.

In February of this year, the court found Ms. Foti had established her real estate and management companies as separate property, given to her by her father. However, the court also found Ms. Foti took the interest on the properties as tax losses in a jointly filed federal income tax return.

In deciding the properties of Ms. Foti were commingled with the marital estate, the court noted earlier precedent that “[a] party to litigation may not take a position contrary to a position taken in an income tax return.”

Is Divorce Really That Bad?

Over the years there have been dozens of murder for hire; murder for sexual favors; and murder by fraud or scheme to defraud perpetrated by a spouse who could have simply divorced their partner.

This was easier to understand prior to the enactment of the No Fault Divorce law in October 2010.  In October 2010 the Utah State Legislative passed the no fault law. As a result, fault is not necessary anymore and anyone can get a divorce without claiming fault against the other spouse.

Prior to October 2010 fault was required, a lengthy expensive process was the inevitability of a marriage going sour if one spouse was not agreeable to divorcing the other.  Murder plots are never palatable in any manner, however, it is beyond comprehension that one would even consider a murder plot when a marriage can be ended simply with a divorce action brought under the no fault divorce statute.

It is our experience that over the years many clients have caused destruction to themselves and their spouse through physical and emotional abuse and even violence rather than get divorced.  Divorce used to carry a “stigma” that with some generations having a 70% divorce rate.  It is more the norm than a stigma.  It gavels the mind why someone would go to the lengths of hiring a contract killer or arranging for their spouse to be killed.  The answer to this question is best summarized by a famous Nassau County Judge (who will remain anonymous) who stated to us that there are three reasons for every divorce: (1) money; (2) money; and (3) money.  This must be the root of these cases.  However, even in the most newsworthy cases sometimes it is a very small amount of money or no money involved and spouses still go to great lengths to physically harm, intimidate or emotionally abuse their spouses.

Recently, a Utah prison escape succeeded because it is alleged that Joyce Mitchell assisted the escape because she allegedly wanted her husband killed by the inmates.  See, (Kevin insert major news stories here).  Since both her and her husband worked in the prison system there does not seem there was great disparity of income and she still loved her husband.  Yet she was plotting his death.

Divorce is not a bad thing if one considers that no happy marriages end up in divorce.  Divorce often reduces the amount of misery a couple will endure prior to the actual divorce being granted.  Sometimes, it is only by facing the facts and having the courage to seek a no fault divorce that someone can spare themselves and their spouse wasted years; emotional and/or physical harm.

If your marriage is unsafe; unhealthy; inappropriate or unhappy, please contact us for a free consultation.

Free Consultation with a Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Health Insurance Law

Health Insurance Law

Most employers are not required by law to offer health-related benefits to their employees, although the practice of providing health-related benefits is fairly common in many companies and businesses. It is viewed as a way to recruit and retain top talent, while also reducing absenteeism. However, once an employer offers or provides health benefits — including medical, disability, dental, and life insurance — federal anti-discrimination laws and health plan enforcement regulations act to protect an employee’s rights under those health plans. Since even employers with the best intentions may get tripped up by these laws, it’s important to do your research or consult with a lawyer before offering such benefits.

This article provides a general overview for employers who offer (or are considering offering) health insurance benefits to their employees.

Anti-Discrimination in Employment Health Benefits

As mentioned above, most employers are not required to provide their employees with medical, disability, dental, or life insurance. But once such benefits are offered, the law requires that the employer adhere to federal laws prohibiting discrimination in employment. As with other areas of employment such as hiring, promotion, and termination, distinctions in health benefits coverage cannot be made on the basis of an employee or dependent’s gender, race, age, national origin, religion, or disability. Many states and local municipalties also prohibit discrimination on the basis of sexual orientation or gender identity. As examples, an employer providing employees with health insurance may not, among other things:

  • Provide lesser coverage or cease offering coverage to older workers, or workers who may become pregnant
  • Treat pregnancy-related disabilities (including miscarriage, abortion, and post-childbirth recovery) different from other health conditions
  • Refuse to provide coverage based on an employee or dependent’s actual disability, a perceived disability, or his or her genetic information

COBRA Insurance Rights After Leaving a Job

Under federal law, employers are required to offer continuation of employer-sponsored health care plans for employees who are laid off or even fired for cause (unless it is considered “gross misconduct”). Employers do not have to subsidize the cost, however, so the premiums typically rise during this period of coverage. Under the provisions of the Consolidated Omnibus Budget Reconciliation Act (COBRA), employees may remain on the employer’s health care plan for up to 18 months (36 months for dependants). The law generally applies to employers with 20 or more employees.

ERISA and Enforcement of Health Insurance Rights

Once an employer decides to offer health-related benefits, its plan must be run in accordance with certain standards designed to protect the interests of employees and other plan beneficiaries (such as family members) under a federal law known as the Employee Retirement Income Security Act (ERISA). Under ERISA, employers are required to take certain steps in connection with employee health benefit plans, including:

  • Notifying employees (called “plan participants”) of plan eligibility standards, claim procedures, participant rights, and related changes to the plan; and
  • Managing and investing plan funds according to the best interests of plan participants.

Free Consultation with an Employer Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506