5 Common Fair Credit Reporting Act Violations by Debt Collectors: What You Need to Know Before Suing

Regardless of whether they are intentional, Fair Credit Reporting Act violations represent serious threats to your credit and your future. Various entities make decisions that affect your pursuits and endeavors based on privileged information that only specified people and institutions are authorized to use in particular ways.

The Debt Defenders at Ciment Law Firm help clients nationwide pursue stable financial futures and healthy credit scores. Working with an experienced debt resolution attorney can help you identify and address issues that may be silently sabotaging your opportunities behind the scenes.Read below to learn about five common violations, and contact The Debt Defenders at (833) 779-9993 today to schedule a free consultation with an experienced FCRA violation attorney. You can also take advantage of our free claim reviews.

What is the FCRA?

The Fair Credit Reporting Act (FCRA) is legislation that governs how consumer reporting agencies (CRAs) and businesses or individuals that report to these “credit bureaus” can or cannot use your credit information. Your credit report can affect your ability to qualify for a mortgage, a car loan, an apartment, or even a job.

What is the Purpose of the Fair Credit Reporting Act?

The FCRA protects the fidelity and privacy of your information while preventing its misuse or abuse by creditors, consumer reporting agencies, and others authorized to access this sensitive data. However, violations of the FCRA are common, and these crimes against you can negatively affect your credit and various aspects of your life.

It is important to be aware of these common violations and be prepared to act in your own interest when they occur. Below, we will explain five common violations of the Fair Credit Reporting Act. The Debt Defenders at Ciment Law Firm, PLLC, can help you address these issues effectively nationwide. Let us know if you encounter any of the following violations.

1) Inaccurate Information, Old Information, or Mixed Files in Your Credit Report

The information in your credit file must be accurate, as you and an authorized person or organization referencing your credit report could be harmed by inaccurate information. There are times when creditors supply erroneous information to credit bureaus when they either know or should know it is incorrect; such instances would be FCRA violations by those creditors. Some examples of inaccurate information include:

• Reporting an account as a charge-off (written off by the lender as a loss) when it was actually settled or paid in full
• Stating an incorrect balance
• Listing an individual as a debtor on an account when they were only authorized as a user of the account
• Reporting payments as late when they were made on time
• Providing credit information on an account that has reported identity theft in a way inconsistent with proper identity theft procedures

Old Information

Sometimes creditors or credit bureaus fail to update your credit information after you have taken actions that changed your circumstances. Providing or reporting this old information after failing to keep your credit file current may constitute FCRA violations. Some examples of failures to keep credit records current would include the following:

• Failing to report that a given debt was discharged in bankruptcy
• Reporting a closed account as active
• Reporting an old debt as current, new, or re-aged
• Reporting lawsuits after seven years
• Reporting Chapter 7 Bankruptcies after ten years

Mixed Credit Files

In some instances, the credit information of people with similar names or Social Security numbers may become confused or mixed. It might happen when these people live in the same zip codes, when Sr. or Jr. are mistaken for each other or not specified, or when individuals with the same last name have very similar first names. Credit files may have been mistakenly combined at some point in the past, which could lead to ongoing confusion and distortions of the individuals’ credit histories in the future.

2) Requesting a Credit Report for Impermissible Purposes

While employers, creditors, and landlords may be authorized to pull your credit report, they can only do so for permissible purposes. Some examples of impermissible purposes for pulling a credit report include:

• An employer pulling your credit report without your permission
• Pulling a credit report to determine whether someone is collectible on an involuntary debt (such as car towing or impound fees) or a non-credit matter (such as a personal injury lawsuit or divorce proceeding)
• A creditor pulling your credit report after the debt was discharged in bankruptcy

3) Privacy Violations

Credit bureaus are only authorized to supply your credit report to individuals or organizations with valid needs, such as employers to which you have previously provided consent, landlords, utility companies, insurance providers, and creditors. Generally, valid reasons to access your credit report involve assessing your ability to make responsible financial decisions and timely payments. You may be entitled to damages if a credit bureau has provided this information to other individuals who do not have a valid reason to access your credit history.

4) Withholding Notices

You are entitled to notices when a creditor supplies negative information to a credit bureau or when an employer, lender, or creditor fails to notify you of a negative decision based on your credit report. A creditor must provide you with your credit score if it was used in any decision, and they must notify you of your right to a free credit report and the option to dispute inaccurate information.

Any creditor or any user of your credit report information cannot refuse to identify the source of credit information they have collected on you. Failures to properly notify you under any of these circumstances constitute FCRA violations.

5) Failing to Follow Debt Dispute Procedures

If you have identified inaccurate information in your credit report, you should work with an experienced FCRA attorney to formally dispute the inaccuracies. There are specific actions creditors and credit bureaus must take in response to your written dispute regarding the accuracy of an item in your credit report. In short, they must conduct a reasonable investigation, correct inaccuracies, and perhaps remove the disputed debt from your credit report.

Credit bureaus must notify a creditor if you have reported a dispute. Creditors must notify every credit bureau of a dispute and provide them with corrected information following their internal investigation. They must inform you of their findings within five business days of its completion. Creditors must refrain from continuing to submit incorrect information.

Depending on the details of the dispute, the creditor’s internal investigation must be conducted within 30 or 45 days; they must also provide you with their reasonable procedure and an address where you can send your written dispute. Failures to follow proper dispute procedures may constitute FCRA violations.

Discuss The Details of a Willful or Negligent FCRA Violation with an Experienced Debt Resolution Attorney to Plan Your Strategy

Different types of damages or penalties may apply for willful or negligent violations. If you believe you have experienced any of these violations or want to work with an experienced FCRA attorney, don’t search for a “debt lawyer near me.” The Debt Defenders at Ciment Law Firm, PLLC, will help you identify and resolve your credit or debt issues.

Contact us today at (833) 779-9993 or fill out our online form to schedule a free consultation with an experienced debt relief attorney with The Debt Defenders. We can help you with your credit strategy, regardless of whether you have a valid FCRA violation case. No matter what your credit issue is, we have an option for you.

At The Debt Defenders, we apply our experience and knowledge to assist clients with various debt issues and financial legal challenges. When you choose The Debt Defenders at Ciment Law Firm, we will immediately get you on the right track with our proven three-step process that helps you resolve your debts, protect your rights, and rebuild your credit.

In Step 1, we resolve your debts. Depending on your unique circumstances, this could involve:

• Debt Lawsuit Defense
• Bankruptcy Protection
• Debt Protection Program
• Debt Assistance Program
• Bank Garnishment
• Student Loan Assistance
• Judgment Lien Release

In Step 2, we protect your rights.

• Fair Debt Collection Practices Act
• Texas Debt Collection Practices Act
• Telephone Consumer Protection Act

In Step 3, we rebuild your credit with 7 steps to a 720 Credit Score.

Learn more about each step and how our 3 Step Proven Process puts you on the path to financial stability.

Send us your Credit Karma report for a free claim review if your debts have been disputed, settled, or included in bankruptcy within the last year. Even if you didn’t use our firm for your original debt resolution case, you should still take advantage of our free claim review.

Copyright © 2023. The Debt Defenders at Ciment Law Firm. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

The Debt Defenders at Ciment Law Firm
221 Bella Katy Dr
Katy, TX 77494
(833) 779-9993
https://www.cimentlawfirm.com/

from Texas Bar Today https://ift.tt/3fF2SEp
via Abogado Aly Website

The Argument for Standalone Websites as a Place of Public Accommodation

Today’s blog entry is a case from the Eastern District of New York, Martinez v. Gutsy LLC, here, which makes the case for why standalone websites can be a place of public accommodation providing that site is functioning for one of the purposes laid out in 42 U.S.C. §12181(7).

 

Once again, a person using a screen reader could not access a website. In this case, a company sold probiotic soda through its website. Defendant filed a motion to dismiss, and it is that motion that the case considers. As usual, the blog entry is divided into two categories, and they are court’s reasoning that a Gutsy’s standalone website is a place of public accommodation  and thoughts/takeaways. Of course, the reader is free to focus on either category.

 

I

Court’s Reasoning That Gutsy’s Standalone Website Is a Place of Public Accommodation.

 

1. The United States Courts of Appeals are split on whether a standalone website is a place of public accommodation under the ADA.
2. The First Circuit and the Seventh Circuit have found that electronic space can itself be a place of public accommodation.
3. The Third Circuit, Sixth Circuit, Ninth Circuit, and 11^th Circuits have held that places of public accommodation are limited to physical spaces, but that goods and services provided by a public accommodation, including those provided through a website, could conceivably fall within the ADA’s protections if a sufficient nexus exists. The Second Circuit has yet to weigh in.
4. District courts within the Second Circuit are split on the issue of whether standalone websites are places of public accommodation under the ADA.
5. The vast majority of courts in the Second Circuit at the District Court level have taken the position that a standalone website is a place of public accommodation under the ADA independent of any nexus to a physical space.
6. That so many judges have diverged in their interpretation over this question means that the plain language of title III of the ADA is ambiguous as to whether standalone websites are covered entities under title III of the ADA. Accordingly, a court can use cannons and other interpretive tools to understand the statute in question. If after that, the text of the statute is not entirely clear, a court turns to broader statutory context and its history. When using this methodology, the courts are split as well.
7. The common thread running through the list contained in 42 U.S.C. §12181(7)(E), (F) are threads of common function, rather than one defined by physical presence. In other words, the statutory focus of §12181(7) is on the entity’s function, such as serving food, creating space for the public to gather, offering entertainment, providing education, offering banking or transportation services, etc. §7(E) is a list of entities engaged in commerce, while §7(F) must be one engaged in the provision of services. Therefore, the ADA provides a guiding limiting principle for courts to use, namely a function-based analysis in applying the ADA’s antidiscrimination requirements online.
8. Courts assessing ADA public accommodation discrimination claims need to first assess whether the entity with an Internet presence has a function like one on the non-exhaustive list of public accommodations in §12181(7).
9. Place of public accommodation is a term of art common to remedial civil rights statutes. In such statutes definitions have varied wildly, which serves to demonstrate how the term changes in order to deal with the harms such statutes are intended to remedy.
10. The phrase “place of public accommodation,” should be read within its context and related history. When reading it that way, a court cannot rule out that the definition sensibly includes electronic space as well as physical spaces.
11. The change in word choice from public accommodation to facilities when intending to discuss a physical space, further bolsters the interpretation of §12181 as concerned with the functions of the various entities rather than their physical spaces.
12. In March 2020, the near entirety of everyday American life moved online: grocery shopping moved entirely online just about; kids attended school online; white-collar workers were working remotely; and families went to the movies by streaming in their living room, etc. In short, the dramatic extent to which the Internet has changed what it means to participate in American society came front and center.
13. As vaccinations have become widespread and pandemic restrictions have loosened across the country, some Americans have returned to in person movie theaters, physical shopping centers, and lengthy commutes. However, many others have not done so.
14. If it was not already clear before 2020, it is clear today that an enormous share of activities of daily life now happen online.
15. Commerce is now transacted online as often as not: artisans sell on Etsy; Amazon has largely replaced the in-person convenience store; brick-and-mortar public facing locations can be and appended to core online business and not the other way around, and the Internet is replete with how to guides for creating your own E store and navigating the broader e-commerce landscape.
16. As an ever greater proportion of the activities of everyday life and commercial transactions take place online, a reading of the statute limiting its effect to enter the transacting commerce in person becomes one that render the statute increasingly meaningless.
17. A core maximum statutory interpretation, the presumption against absurdity, means that a court should never describe an absurd meeting to Congress. That is, a court must always presume congressional rationality in its drafting. As such, that also favors an interpretation of the ADA that includes standalone commercial websites within its coverage.
18. Per PGA Tour v. Martin, which we discussed here, the ADA must be broadly construed to effectuate its purpose of eliminating discrimination against individuals with disabilities.
19. Legislative history of the ADA also weighs in favor of a dynamic interpretation of the statute accounting for changes in technology over time. In fact, the House committee report published in the lead up to the bill’s passage specifically specified that the committee intended that the types of accommodation and services provided to individuals with disabilities under all titles of the ADA should keep pace with the rapidly changing technology of the times.
20. While no federal agency has promulgated regulations clearly defining public accommodations for purposes of the ADA in relation to the Internet, the DOJ has issued a guidance in that area. That guidance is entitled to deference per Supreme Court decisions because it is informed by DOJ’s specialized experience and consistent with the DOJ’s position in its recent cases and settlements.
21. DOJ has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.
22. While not controlling, DOJ’s understanding of a public accommodation is any business open to the public and its specific position that the ADA’s requirements apply in the Internet context, further weighs in favor of interpreting title III to include standalone commercial website as places of public accommodations.
23. A nexus need not be found for a standalone website to be a place of public accommodation under title III of the ADA. Instead, the key is to focus on whether the websites operate in one or more of the functional categories that forth by the statute.

 

II

Thoughts/Takeaways

 

1. I read lots of these kinds of decisions. I am always mystified that South Dakota v. Wayfair, which we discussed here, never gets mentioned. I just don’t understand it. In fact, not mentioning it may even be legal malpractice because it is relevant United States Supreme Court authority very much suggesting that a standalone website can be a place of public accommodation.
2. Undoubtedly, the issue of whether standalone Internet sites are places of public accommodation is headed to the United States Supreme Court eventually.
3. This case does an excellent job of laying out the reasons why the ADA can be interpreted to include standalone websites within title III of the ADA providing those websites are serving a function within one of the categories listed in 42 U.S.C. §12181(7). As such, this case falls within the line of cases, such as here, saying that the Internet must be meaningful accessible to people with disabilities if what is going on, i.e. the function, falls within one of the categories listed in §12181(7).
4. The list of entities in §12181(7) is not exclusive even if the categories are.
5. Interesting how the court talks about the use of place of public accommodation v. facility and how that means place of public accommodations can include electronic space.
6. Can’t argue with the proposition that online drives everything nowadays. Also, remote work isn’t going away either. If online websites do not have to be meaningfully accessible to persons with disabilities despite whether their functions fall within one of the enumerated categories, people with disabilities will certainly be on the outside looking in.
7. Also interesting is that the opinion does not cite Kisor v. Wilkie, which we discussed here, but does cite the Supreme Court cases coming before that. From reading this decision, the court is clearly of the view that the DOJ guidance will pass muster per Kisor.
8. The 11^th Circuit is uncertain on the issue of standalone websites because Winn-Dixie was mooted. We discussed the very difficult to understand and now mooted 11^th Circuit decision and Winn-Dixie here.
9. 42 U.S.C. §12181(7)(E) is a category involving sales or rental establishments. Commerce, the term used by the court, is much broader than what the actual category is.
10. The case is making its way through trial and undoubtedly will head to the Second Circuit eventually.

from Texas Bar Today https://ift.tt/xKPMdfA
via Abogado Aly Website

EPA’s New CERCLA Plan Could Have Wide-Reaching Implications

The Environmental Protection Agency (EPA) has proposed new rules that would add PFAS chemicals to the list of hazardous substances covered under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). If these new rules take effect, they will have dramatic impacts, both on consumers and public utilities. Although the EPA has made addressing the issue of PFAS chemicals a priority, the agency may be underestimating the downstream impacts of its proposed regulations. Both companies and consumers may feel the pinch of sharply increased costs as a result of these new rules.

PFAS Chemicals Are Designed to Be Durable

PFAS refers to a family of chemicals that are used to make durable and long-lasting substances. They are specifically designed to be both heat- and stain-resistant. Given the durability of PFAS, some plaintiff attorneys refer to them by the name “forever chemicals.” Plaintiff attorneys allege that PFAS chemicals have been found in the ground and water supply near areas where they are used. Although PFAS chemicals are often discussed by these lawyers in the context of the imminent danger they create, the International Agency for Research on Cancer classifies PFAS chemicals as “possible” carcinogens.

The Biden Administration Is Under Pressure to Take Action on PFAS

Environmental interests have lobbied the federal government to take strong action on PFAS chemicals. They appear to have found an ally in the Biden Administration. As a result, the EPA has proposed drastic new rules that would extend CERCLA coverage to PFAS chemicals. The new rules may have a number of significant effects, whether intended or not.

CERCLA attempts to pass the costs of cleanup to the companies that work with chemicals and substances categorized as pollutants. The government can designate certain sites as “Superfund” sites and essentially hand the bill for cleanup to the company that they deem responsible for the pollution. Superfund designation depends on the presence of “hazardous substances.”

The EPA Proposes to Classify PFAS as a Hazardous Substance

In September 2022, the EPA designated PFAS chemicals as hazardous substances. This classification may result in hundreds of billions of dollars in cleanup costs. There are nearly 3,000 sites throughout the United States that are known to contain PFAS chemicals. The alleged durable and long-lasting nature of PFAS chemicals means that remediation will be challenging and expensive.

The new rules could impose costs not only on the companies that make PFAS chemicals themselves but also on companies that use them in their products. The way that CERCLA is drafted could also mean that waste management and wastewater facilities that treat PFAS chemicals could also be liable for cleanup costs. Again, the alleged durable character of PFAS chemicals could mean an expensive and long-lasting cleanup effort.

Billions of Dollars of Liability Could Bankrupt Utilities and Mean Increased Costs for Customers

If companies are made to pay for the costs of remediation, it could impose a crippling financial burden on them. One cannot expect companies to take on these costs on their own because they may not survive. Most businesses will look to pass at least part of the costs along to consumers, meaning that there could be dramatic price hikes on consumer goods during a time of already heightened inflation.

Another area that may lead to skyrocketing costs for consumers is their utility bills. Environmentalists argue that PFAS has sometimes contaminated the water supply in areas where it is used. Even though water utilities were not the ones who used the chemicals in the first place, they are often the ones who have the responsibility of absorbing the cleanup costs. Water utilities cannot be expected to foot the bill for these costs, and in many cases, they simply cannot afford them. As a result, consumers will see sharp hikes in their water bills when PFAS cleanup is required. Although the recent infrastructure bill allocated $10 billion for PFAS cleanup in water, it is not nearly enough to pay the total costs of doing so, assuming that remediation is required.

Another area where costs may be passed along to consumers is air travel. Airports have often used products that contain PFAS, such as firefighting foams. Assuming that airports must foot the cleanup bill, they will pass the costs along to the airlines, which will in turn hike airfares yet again.

Congress Should Act, but it Is Unlikely

One potential solution is for Congress to pass a law that clarifies the extent of the exceptions from CERCLA. For example, there is currently an exemption from CERCLA that covers PFAS in fertilizers. Although this exemption is meant to cover farmers, there is some uncertainty about how it would protect farmers from the new PFAS designation. However, given the sharp divisions in the current Congress and the controversy over PFAS, it is not likely that Congress would pass any legislation. PFAS chemicals have been a controversial issue across the political spectrum, and there are numerous differing opinions.

Expect Litigation Over the Finalized Rules

For now, much depends on the scope of the regulations that the EPA finalizes. Like every agency rule, the EPA has released its proposed PFAS/CERCLA rule for public comment. Once the public has commented, the agency must consider the comments and respond in its final rule. Hopefully, the EPA will take the above factors into consideration, but its flexibility may be limited by CERCLA once it finalizes these rules. The EPA could use its discretion in enforcing the rules, but the current agency leadership seems inclined to make a broader sweep when it comes to PFAS cleanups.

In the meantime, one can expect these rules to be challenged on multiple legal fronts if and when they are finalized. Courts have recently shown a willingness to curtail agency action that reaches too far without Congressional authorization. However, they choose to act, rest assured that the end result of the actions taken by the EPA, Congress, and federal courts regarding the EPA’s new CERCLA plan could have drastic impacts on companies and consumers.

The post EPA’s New CERCLA Plan Could Have Wide-Reaching Implications appeared first on MehaffyWeber.

from Texas Bar Today https://ift.tt/fVMxAps
via Abogado Aly Website

Examining the Process for Modifying a Divorce Decree in the State of Texas

If there is one thing that I can say with any certainty on this blog is that the world is constantly changing. Just when it feels like things are beginning to slow down for you or your family, in the blink of an eye a circumstance or other aspect of your life can change. Whatever it may be, we humans have learned to become flexible with major changes in our lives. When it comes to making changes as a result of a divorce, we see that you may have needed to re-adjust to life as a single adult. Part of that adjustment period is the ability to succeed in life with the divorce orders you were awarded in the divorce itself.

The orders that you negotiated for or were handed down from the judge in the divorce are the key to understanding what to make of your life post-divorce. For many people, those orders will be ok for years after the divorce. If these orders suit you and your family well then you do not need to give them a second thought. You can adjust your life to live within the confines of those orders and move on with the rest of your life to better account for whatever life throws at you after getting a divorce.

On the other hand, change is inevitable, and you may find yourself in a position where you are needing to change your court orders to match up with the circumstances that are now your reality. For you to be able to feel good about your life you may want to update your court orders to reflect the life of you and your children. What was true a decade ago may no longer be true as far as what suited you all best. Now you may find yourself in a position where you need to seriously look at your life and reestablish what is best for you and especially what is best for your children.

That is what we are going to discuss in today’s blog post from the Law Office of Bryan Fagan. I would like to talk with you all about the process for modifying a final decree of divorce here in Texas. The answer to the question of whether it is possible to modify a divorce decree is, yes, you can do that. However, the devil is in the details, and you need to be aware of the limitations, process, and structure of how you can best go about making those changes.

We are going to discuss how to manage this type of modification if that is something you want to pursue. A modification of a divorce decree is not the same thing as filing a second divorce. There are different elements to the case and different considerations that you must make to be successful in this type of matter. It does not make sense to file for a modification and to hope that you can win. Rather, if you are going to spend the time and money to file for a modification you would want to make sure that all signs point to you winning the case.

With that in mind, there is no greater advantage that you can acquire for yourself in a modification case than to have an experienced attorney assisting you, walking with you, and advocating for you and your family. Even if you didn’t have an attorney in your divorce there are distinct advantages in a modification case that you will gain over a person who files for a similar modification but does not have an attorney by their side. At this level, you want every advantage you can gain. Hiring an attorney is a short-term investment into your long-term future and to your future relationship between you and your children if you are a parent.

If you have any questions about the material contained in this blog post, you can contact the Law Office of Bryan Fagan. We have three Houston area locations where we would be honored to host you for a free-of-charge consultation. Or, if you would prefer a virtual meeting with an attorney, we can schedule you for a video appointment. Finally, the phone works for us, too. A quick phone call on your lunch break or on the way home from work can go a long way toward helping you gain some insight and perspective on a difficult family law situation that you may be facing. Or you may be interested in learning more about the possibility of filing a modification based on your divorce from a few years ago.

No matter where you are concerning your family law-related matter, the attorneys with the Law Office of Bryan Fagan want to be able to meet you where you are and assist you in moving forward now or in the future with a modification, child custody, divorce or any other sort of family law case. We focus our practice on family law because that is where we believe we can make the largest possible impact in our community in a meaningful way. To learn more about our practice and what can offer you as a client please contact us today. A free-of-charge consultation is just a phone call away.

Modifying a divorce decree- what’s going on in your family matters

As we alluded to at the beginning of today’s blog post, it is no secret that your life is probably different now than it was a few years ago when you went through a divorce. For some families, a significant change in circumstances may have happened immediately after the divorce ended. Or your family may have remained virtually unchanged for years after your divorce until something happened that changed all that. No matter what circumstance looks more like what you are going through we want you to understand that there are some characteristics that you need to be aware of before moving forward with a modification.

When it comes to modifications after a divorce most of the time the requested modification has to do with minor children. If that is the case your chances of something changing from the time of your divorce to now increase dramatically. The reason being is that children grow up and see parts of their lives shift and evolve more so than adults. Adults tend to be in a more consistent place than a child. If your child was 5 when you got divorced but is 15 now, then odds are several things are different about him or her compared to back in the day when you got your divorce. We would need to examine the reason why you think a modification of your divorce decree is necessary for connection with your children.

The rule for a modification is that there must have been a material and substantial change in circumstance that has developed which would otherwise lead to your prior court order not being workable. This is important because the material and substantial change are more significant than just any change that you could envision. No doubt- there is probably a small change that has occurred in your life within the week that your divorce decree was issued. However, small changes in your circumstantial changes are not what your modification should be based on. Rather, we need to see substantial changes in a circumstance that materially impacts the course of our lives as a family. That material change in circumstances could have occurred in your life, your ex-spouse’s life, or in the life of one of your children.

You would allege the material and substantial change in circumstances in an affidavit to the judge. An affidavit is a sworn statement under oath. You complete the affidavit laying out your position as to what material and substantial change are, and how it has impacted your family and then you would file that along with your petition to modify your divorce decree. The court that issued your divorce decree would review your affidavit to determine whether there is a material and substantial change as you allege. Assuming that there is, your modification would be accepted, and you would then have to serve your ex-spouse with notice of the lawsuit.

Service most likely means personal service to your ex-spouse. Hiring a private process server or law enforcement officer to facilitate this step is how most people in your position would choose to proceed. Once the process server successfully serves your ex-spouse proof of the service would be filed with the court and your ex-spouse would respond with an Answer. The rest of the case would develop according to how the circumstances dictate. Meaning: you all would probably be going to mediation as a next step.

Mediation in a modification case: can you make a deal?

One of the most important parts of any family law case is the opportunity to attend mediation. Mediation involves formal settlement negotiations with a neutral, third-party mediator. Often the mediator is a practicing family law attorney who also works in the field of mediation. When you plan to attend mediation, the goal is to conclude the case with a settlement negotiation rather than having to go to a contested hearing. This allows you and your ex-spouse to control the proceedings. This is usually a better set-up for success as opposed to having a family court judge issuing rulings based on their limited interactions with your family. Even if you and your co-parent are not seeing eye to eye on much of anything now you all still know your family circumstances better than a family court judge.

When you attend mediation, it is especially useful for you to have an idea of what you want to get out of the case. Not in a general sense but with the specific plans that you have for yourself and your family after the case is done. Being intentional with goal setting and how you negotiate is critical to your success. We underestimate the extent to which an eye for detail and a specific plan can make up for a lot of other deficiencies in a case. Focusing on what you need to do to position yourself well for mediation is important as well. Sitting down with your attorney to develop a strategy, discuss your goals and talk about how to make counter proposals and other settlement offers is just as important as planning for a trial.

One of the parts of a modification case is to decide whether mediation even makes sense given your goals and circumstances. If you are pursuing a modification of your child custody schedule, then mediation would seem to be a productive use of your time. Many times, your ex-spouse can talk through different options that you could pursue and decide to approach the case from a different perspective than you had intended to. There can be a middle ground in a modification case just like there likely was a middle ground in your divorce. It is just a matter of finding that middle ground with your ex-spouse and being open-minded to think about your options and different courses of action that you could pursue.

On the other hand, you and your ex-spouse may be in a situation where a settlement is unlikely or not possible. For example, let’s assume that you are asking for a geographic restriction to be lifted from your court orders to allow you to take a new job in a different city that is beyond the geographic area where your children can now reside. This is a substantial modification request given that a geographic restriction imposes significant limitations on where a child can live. Therefore, if you are the primary conservator of those children and are asking to have the geographic restriction lifted that could potentially put your Co-parent in a position where he would need to move, as well.

Your desire to have the geographic restriction lifted has everything to do with a new job and new opportunities in a different place. Either you can have that geographic restriction lifted and be able to move where you would like to take the new job, or the geographic restriction will not be able to be lifted. This is what I mean by there not being very much middle ground in this case. It is not as if you can have half of the geographic restriction lifted and leave the other half in place. In a situation like this, you would very likely be unable to mediate your way out of the situation. The other consideration would be if you would be willing to change your goals during the case and instead focus your attention on a different part of your final decree of divorce.

Attending a modification hearing

if you are unable to settle your modification case in mediation then you and your ex-spouse would need to attend a modification hearing in court before the judge. In this hearing, you would collect evidence and with your attorney would present your case to the judge as to why your requested modifications should be granted. Even though this is commonly referred to as a hearing it is a trial in every sense of the word. Being able to offer evidence and have admitted into the record documents and other physical evidence is difficult. For that reason, we recommend that you have an experienced family law attorney walking with you during the case. To go all the way to a hearing and not be able to express yourself fully and present the best care possible would be a major disappointment, to say the least.

A judge would consider all the evidence presented after a hearing. The judge would need to consider whether a material and substantial change have occurred in the circumstances of your family sufficient to justify the modification that you are requesting. The physical, emotional, and mental well-being of your child would need to be considered along with the future of your relationship with your child as well as that of your ex-spouse.

These are only a few of the considerations that the judge must think about when it comes to a material and substantial change. Next, even if the court finds that a material and substantial change has occurred it would still need to determine that the requested relief would be in the best interests of your child. To effectively navigate these choppy waters in a complex modification case you need to be prepared and resilient. Having an experienced family law attorney by your side can be a huge help to any family going through a complex modification.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

if you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of divorce for a child custody case.

from Texas Bar Today https://ift.tt/C5NltqK
via Abogado Aly Website

Texas Bicycle Laws You Should Know

Riding a bike is a convenient form of transportation and a great way to get some exercise. But, if you’re going to ride your bicycle on the streets, you should know that laws apply specifically to you. These laws are designed to keep motorists and cyclists safe while sharing the road. Be sure to learn and understand the laws that apply to cyclists on the road before you set out. If you get into a collision, speak to an experienced bicycle accident attorney in San Antonio as soon as possible. These laws include the following:

Adhere to Posted Signs and Lights (551.101)

Cyclists, just like cars, are required by law to stop at stop signs and red lights. This is for your safety. If you don’t stop at a stop sign, a driver may be already making a turn, not see you coming, and can hit you. And because as a cyclist, you are much more vulnerable than a vehicle passenger, you will likely be hurt.

Use Your Signals (545.107)

Let others on the road know your intentions by using hand signals. For the same reason cars are required to signal their intentions – to let others know what move they are going to make – you need to do this too. Doing so could prevent an accident.

The following signals should be used by bicyclists:

• To signal you are stopping – extend your left hand out and bend your elbow to extend your forearm downward at a 90-degree angle
• To signal a left turn – extend your left arm out horizontally
• To signal a right turn – extend your left arm out to the left and bend your elbow to extend your forearm up at a 90-degree angle, OR extend your right arm out horizontally

Equip Your Bike with Lights (551.104b)

Make sure your bike has a white light on the front and a red reflector or light on the rear. This is especially important if you are riding while it is dark out. These lights mimic the headlights and tail lights of a car and help other motorists to see you in low light conditions.

The headlamp or white light on the front of your bicycle should be visible from at least 500 feet in front of you. The red light or reflectors on the rear of your bike should be visible from 300 feet behind (reflector) or 500 feet behind (light).

Ride Near the Curb and with the Flow of Traffic (551.103)

When riding on the road, ride near the curb, or in the bike lane if available, and go in the same direction as the other traffic. This allows you to have a safe amount of distance from vehicles on the road and avoid causing accidents by riding with the flow.

These laws are a few of the most important laws that apply to bicyclists on the road, but there are several more. As a bicyclist, it is your responsibility to study, know, and understand all the rules that pertain to you on the road so that you may operate your bicycle in the proper manner and keep yourself safe. A bicycle and car accident lawyer in San Antonio can assist you if you are harmed due to the negligent actions of another biker or motorist.

The post Texas Bicycle Laws You Should Know appeared first on Hill Law Firm.

from Texas Bar Today https://ift.tt/XMKgUER
via Abogado Aly Website

Small Estate Affidavits

If a family member has died intestate (without a will), what are the next steps to transferring the property of the decedent’s estate? Probate can be overwhelming and an expensive process. Currently, any executor, administrator, or guardian in Harris County must be represented by counsel. What options are there if the estate is small and only consists of property that amounts to $75,000 or less? Probate may not be required in this case if the transfer of property qualifies for a Small Estate Affidavit.

Does the estate qualify for a Small Estate Affidavit?
The Texas Estates Code Chapter 205 covers what is required in order to qualify for a Small Estate Affidavit in detail. Some important qualifications include:
·        The decedent must have died intestate.
·        It has been over thirty days since the decedent’s death.
·        The decedent left no more than $75,000 in property. (This does not include the decedent’s homestead and exempt property).
·        The decedent’s assets must be worth more than the debts.
·        All the distributees must be able and willing to sign the affidavit along with two disinterested witnesses. The witnesses must sign in front of a notary.
·        There is no appointment of a personal representative.
·        The title of the decedent’s homestead can only be transferred to the surviving spouse or minor child who were homesteading with the decedent when the decedent died.
·        The affidavit cannot be used to transfer title to real estate that was not considered the decedent’s homestead.

Cons.
Even if the Small Estate Affidavit seems like a perfect fit for your situation, there are some cons you should keep in mind. Some banks, especially those outside of Texas, may not accept a Small Estate Affidavit. They may want to see Letters Testamentary or Letters of Administration before they will assist as they are not familiar with Texas laws.
The court also does not have to accept the Small Estate Affidavit, even if it meets all the statutory requirements. Different courts also have specific requirements regarding the Small Estate Affidavit so you will want to review your courts processes before deciding whether this is the right step forward for you. While you may save money by not hiring an attorney to complete this form, the filing fee can be costly and, as stated above, the court does not have to approve a Small Estate Affidavit even if it meets all the statutory requirements.

Approval.
Once this Small Estate Affidavit is approved by the court (usually through an ‘Order Approving Small-Estate Affidavit’), a certified copy of the affidavit can then be used to collect estate assets and transfer title to the homestead to the decedent’s spouse or minor child. These assets can also be used to pay any debts remaining from the estate.
If the Small Estate Affidavit seems like the right fit for your needs, you can access a fill-in-the-blank copy here, provided by Harris County Probate Court 1. This packet also includes further instructions on how to fill out each section of the form. If you are outside of Harris County, you can access a list of county-specific Small Estate Affidavit forms (if they are available) and more information about Small Estate Affidavits from TexasLawHelp.org.

If you are unsure whether a decedent’s estate qualifies for a Small Estate Affidavit or if you have any questions on how to fill out the form, please seek advice from an attorney.

Further Resources:
What is a homestead?
Small Estate Affidavit Toolkit
Small Estate Affidavit not the right fit? Here are other ways property can be transferred after death.

from Texas Bar Today https://ift.tt/VTk1Mao
via Abogado Aly Website

Criminal Law Crash Course—What Every Lawyer Needs to Know

The phone rings in your office on a Tuesday afternoon at 1:14 p.m. The CEO of your favorite tech giant client sounds unnerved:

“My son is on his way to the police station. They want to talk with him at 2, but they’re not saying why. Our son has heard rumblings on social media he was inappropriate and forceful with a girl at a party—but he insists everything was consensual. I thought he should tell his side to the cops but then I was wondering if maybe he should talk with a lawyer first?”

The CEO spits questions at you: “Is he a rape suspect?”

“Are they going to arrest him?”

“Don’t they have to tell him the accusation first?”

And on and on … But you’re a big shot M&A lawyer, not a criminal lawyer.

What can you possibly do in the 46 minutes remaining before the police expect the CEO’s son to arrive for a discussion?

 

Don’t Worry About Malpractice

For a criminal defendant to prevail in a malpractice claim they must prove they are actually innocent of the original charges. (See Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995).)

A criminal defendant would have to be convicted or charged due to the negligence of counsel and then have that conviction overturned to bring a successful case. If you are not involved in the plea negotiation or trial of the case, then civil exposure is farfetched.

 

Putting on a Criminal Lawyer’s Hat

Several rules in the Texas Rules of Criminal Procedure and the Texas Rules of Evidence make practicing criminal defense special. When dealing with a criminal case, a lawyer must “change hats” and think like a criminal defense attorney.

 

One-Sided Litigation

Don’t assume the state either (1) has present knowledge of all the facts known by your client of an alleged crime; (2) will inevitably learn of such facts; and/or (3) has a legal right to discover facts unknown to them.

An accused has the right to remain silent under the 5^th Amendment. Texas Code of Criminal Procedure Art. 39.14 governs discovery and that provision is unilateral. The state is not ordinarily entitled to depositions, interrogatories, or production of evidence.

Texas Rules of Evidence § 503(b)(2) is the “Special rule of privilege in criminal cases,” and is as follows:

In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. (Emphasis added).

When compared to the general attorney-client relationship rule of privilege as defined by 503(b)(1), which states in relevant part, “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating … legal services,” the attorney-client privilege in the criminal case is infinitely broader. If taken to its logical extreme, the mere fact an attorney represents someone on a criminal matter could be argued as privileged. Put it this way—wouldn’t the police be very interested to know an unknowing suspect went to a criminal lawyer’s office?

Criminal counsel’s main goal is to cut off the main source of oxygen of a criminal prosecution—information from the accused.

 

Understanding Police Investigations

Many of us are programmed from birth to talk our way out of trouble. We are raised to believe that when we’ve done nothing wrong, people will take us at our word. We also think if we admit to making mistakes, others will understand and be fair with us.

It’s tempting to act based on these assumptions. What we don’t understand is some people won’t take us at our word, especially if they think we’ve committed a terrible crime. We also assume our version of taking responsibility might include an apology, but we don’t realize police or prosecution’s version of responsibility might be 20 years in prison.

I like to think of investigations in two different ways. First is a linear investigation for most simple crimes where the elements and facts are usually straightforward. Police just want to check the box for each element in a linear investigation (think shoplifting or DWI). Second are “360-investigations,” which are the complex investigations such as murder, sexual assault, or drug rings (think CSI).

 

Remaining Silent and Invocation of the Right to Counsel

Most investigations are linear due to the relative simplicity.

Advising a client to remain silent—even if only for the immediate situation—is what any novice criminal law practitioner should do in the vast majority of situations. There is nothing ethically or legally flawed by advising a client to invoke their 5^th Amendment right to remain silent as well as their 6^th Amendment right to counsel.

People fear making the police angry. They also fear invoking the right to counsel looks bad or arouses suspicions. These fears are understandable and not entirely unfounded—but the police are probably already suspicious, which is why they’ve called in the first place. A skilled lawyer talks with police, humanizes their client, and diffuses these suspicions.

 

Investigations With Detectives or Other State Actors

The Disciplinary Rules of Professional Conduct require lawyers to have honest dealings with everyone. Deception can be a legitimate law enforcement tactic, though. Police can do things like infiltrate the mafia, run prostitution stings, or pretend to be a 12-year-old to trap online predators.

Your client is more than likely no match for a police interrogation, particularly if they are teens or young adults. (Owen-Kostelnik, J., Repucci, N.D. & Meyer (2006)); see also Testimony and interrogation of minors: Assumptions about Maturity and Morality. American Psychologist, 61(4), 284-304.) Even adults regularly succumb to natural instincts to obey authority. Police are highly polished and trained in leveraging their authority to get suspects talking and giving incomplete or poor answers to surprise questions. Detectives frequently use the Reid Technique of interrogations and its variations, or the 5-step Preparation and Planning, Engage and Explain, Account, Closure and Evaluate, or PEACE Method. (See e.g. Cameron v. State, 630 S.W.3d 579 (Tex., Crim. App. 2021).) In any event, law enforcement usually has a plan.

 

The Feds

Some initial interactions with federal authorities can affect the government’s charging decisions and potentially sentencing well down the road. If your client is under federal investigation and you’re aware of it, then obviously get it to a criminal lawyer quickly.

 

Can’t the Accused Talk Their Way Out of Trouble?

Sure. But remember a vague police officer is probably being so for a reason—usually to retain the element of surprise over a suspect. Professional police officers in search of the truth shouldn’t care whether it comes from an accused or his/her lawyer. An officer insisting on a one-on-one with your client alone probably thinks they already know the truth, and your client might be arguing with the drink machine that stole his dollar about their innocence.

 

“But I’m Innocent and I Can Handle This”

Let’s say your client gives a statement like this: “It was a weird vibe. My buddy and I got to the party, and I don’t even think I finished my beer. A few people were looking at us funny, so he and I left.”

Here’s how the police report might summarize your client’s statement: “Suspect admitted entering the house.”

Get the picture? Confession or not, don’t give any oxygen to the fire.

 

What Should You Do if the Police Are There With Your Client?

Most on-view arrests don’t trigger a right to counsel such as DWI or domestic assault. Police also aren’t big fans of letting suspects make phone calls to lawyers on the side of the road. If this happens, though, tell your client to behave but remain silent. Tell them to comply with any police commands but not to consent to anything optional such as a search or an interview.

Never allow a client to give police cellphone or computer passwords voluntarily.  Cellphone and computer examination are hot topics of search and seizure law, and your client does not want to agree to a fishing expedition by police.

 

What Happens Next?

Get the case to experienced criminal counsel who is comfortable dealing one-on-one with law enforcement. Some of the warmest “thanks” you might ever get are from helping someone in the most terrifying moment of their lives or the life of their loved one … all because you kept cool and knew what to do in those 46 minutes.

 

Jeremy Rosenthal is a senior partner at Rosenthal, Kalabus & Therrian, one of the largest criminal defense law firms in Collin County. He has tried over 250 cases and is a former prosecutor in Collin County. Rosenthal had cases both at the Texas Supreme Court and the Texas Court of Criminal Appeals. He is the past president of the McKinney Bar Association, a former board member of Texas Criminal Defense Lawyers Association and serves as an assistant editor for the Voice for the Defense magazine. Rosenthal graduated from SMU Dedman School of Law in 2000 and earned his undergraduate degree from Texas Tech University in 1997.

 

 

from Texas Bar Today https://ift.tt/SdyZapT
via Abogado Aly Website