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Posted by on in Community

b2ap3_thumbnail_fathersday.jpgThis Father’s Day, I’d like to honor fathers by providing them with some important tips to protect their rights in a family law system that can often feel stacked against them. A few pieces of guidance:

• Don’t be overly generous immediately post-separation. The U.S. family law system is designed to compare your income and time with your kids to that of your ex-spouse. When your ex-spouse requests child and spousal support, he or she will be ordered an amount that is fair, and – unless you are very wealthy – this amount may seem difficult to bear. It may appear harsh in the moment, but if you prematurely dish out money for the rent or other necessary expenses, as many fathers often do before consulting an attorney, it can be difficult and time consuming to receive credit for that money later. It is better to allow your ex-spouse to borrow from someone else who is not bound by California family law, and let the court adjudicate your support later.

• Don’t sit on your rights. If you think the family court is wronging you, contact an attorney immediately. Some orders, such as child support, frequently cannot be changed before the date you file your request. For example, if you are paying support based off a higher income that you had in the past, the court will modify it downward. However, in many cases the downward modification will only go backwards in time to the date you file your request, not to the date that your income actually changed, so quick action is important.

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debt consolidation loanWhen a person files taxes in which he or she has paid a greater amount of taxes than his or her tax liability requires, he or she can receive a tax return. In some situations, a person may have taken the steps to consolidate student loans and may look for other ways to save. Some possible ways to smartly use these funds include:

Pay Off Student Loans

Consolidating student loans does not mean that the loans are gone. They have simply been combined together to offer one payment and one interest rate. Student loans are often not dischargeable in bankruptcy. Additionally, consolidating student loans may eliminate payment alternatives such as a deferment or forbearance, so if you get into financial trouble, you may have fewer options when paying your student loans. You can take the extra funds from your tax return to completely pay off a portion of your student loans.

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bankruptcy divorceBankruptcy and Divorce can go hand in hand. The timing of which to do first can be a difficult decision and can have a major impact on your finances going forward. In this post we will discuss things to consider when deciding whether to file bankruptcy or divorce first.

Do I File for Divorce or Bankruptcy First?

Are you ready to file for bankruptcy? Is a divorce filing also looming on the horizon? Getting this right all comes down to timing. This critical factor will play a role in whether you file bankruptcy or divorce first. Please continue reading to find out if you should file for divorce before or after a bankruptcy filing.

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Posted by on in Other Subjects

b2ap3_thumbnail_TheMlnariklawgrou-Memorial-Day-2017.jpgNational Military Appreciation Month reaches its peak this Memorial Day weekend, as the nation remembers the individuals who gave their lives while serving their country. There are actually two national holidays, Memorial Day and Veterans Day, which honor the sacrifice of Americans who served in the U.S. Armed Forces, and celebrate our nation’s values of duty, honor and civic responsibility. Interestingly, and likely because these holidays appear to celebrate the same thing, many people confuse Memorial Day and Veterans Day. It is important to understand their difference.

Memorial Day is a day for remembering and honoring military personnel who died in service of their country, particularly those who died in battle or as a result of wounds sustained in battle. While those who died are also remembered, on Veterans Day, this holiday is designated to thank and honor all those who served honorably in the military — in wartime or peacetime. In fact, Veterans Day is largely intended to thank living veterans for their service, to acknowledge their contributions to our national security, and to underscore the fact that all those who served — not only those who died — have sacrificed and done their duty. So you see, the holidays, though similar in the way they commemorate the sacrifices of thousands of American service members, are quite distinctly different and, as such, have different histories.

Memorial Day is the older of the two holidays, having its roots in the Civil War. First known as “Decoration Day,” it was instituted by former Union Army Maj. Gen. John A. Logan to honor those who died in the armed forces. The first official observance of Memorial Day was May 28, 1868, when flowers were placed on the graves of Union and Confederate soldiers at Arlington National Cemetery.
With General Orders No. 11, Logan designated May 30, 1868, “for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country,” and to conduct special services as circumstances permitted. He declared, “Let no vandalism of avarice or neglect, no ravages of time, testify to the present or to the coming generations that we have forgotten, as a people, the cost of free and undivided republic.” He also asked that the nation renew its pledge to assist the soldiers’ and sailors’ widows and orphans.

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Posted by on in Bankruptcy Law

TheMlnariklawgroup car loanOne of the contributing factors to the housing market crash in 2008 was the prevalence of “subprime” mortgage loans. These loans were extended to borrowers with less favorable credit and a high risk of default. Typically, these loans had adjustable rates that were simply impossible for these borrowers to repay. In the case of a mortgage, if a borrower is delinquent in making timely payments to the loan servicer, the lender may take possession of the property through foreclosure.

Although our economy has gradually recovered from the crisis in 2008, subprime loans are on the rise again—but this time, lenders are targeting consumers purchasing new vehicles. As bankruptcy practitioners, we at the Mlnarik Law Group have seen a rise in these unfavorable loans amongst our clients.

Since 2010, the percentage of auto loans considered “deep subprime” has risen to 32.5 percent from 5.1 percent. “Deep subprime” in this context means loans extended to borrowers with a credit score of 550 or less. These loans may have interest rates between 15-20 percent or higher, and include other restrictive terms about repayment, resale of the vehicle and even a consumer’s ability to relocate across state lines. Some loans allow repayment for a term of up to 84 months, greatly increasing the amount of interest and fees a borrower will pay.

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Posted by on in Employment Law

b2ap3_thumbnail_family-leave-themlnariklaw.jpgThe birth of a child can be an exciting time for new parents, but it can also be unpredictable. This new responsibility coupled with unexpected emergencies may require new parents to take time off work. Many people in the workforce may mistakenly believe that they are putting their careers in jeopardy if they take time off for family emergencies or to care for a newborn. However, California offers special protections for employees who qualify for family and medical leave.

The California Family Rights Act (CFRA) is partially based on the federal Family and Medical Leave Act (FMLA), with some provisions that overlap and some provisions that provide employees with rights beyond those provided by FMLA. At their core, both acts allow parents to bond with their new child, or children, after birth without risking termination by their employer.

Who Qualifies?

For both the FMLA and the CFRA, medical leave laws cover private employers with 50 or more employees on the payroll. These employees must have worked for 20 or more calendar weeks in the current calendar year or the preceding calendar year.

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Posted by on in Estate Planning

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What is an IRA?

An individual retirement account, or IRA, is a type of plan provided by many financial institutions that provides tax advantages for retirement savings in the United States. An individual retirement account is a type of individual retirement arrangement as described in IRS Publication 590, individual retirement arrangements (IRAs). On the simplest level, an IRA is a savings account with big tax breaks, making it an ideal way to save for retirement. A lot of people mistakenly think an IRA itself is an investment. On the contrary, it is simply a basket in which individuals keep stocks, bonds, mutual funds and other assets. Unlike a 401(k), which is provided by an employer, certain IRAs can be created voluntarily by individuals in the workforce.

There are many different kinds of IRAs, and each has eligibility restrictions based on income or employment status. And all have caps on how much individuals can contribute each year and penalties for withdrawing funds before the designated retirement age.

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rent own property mlnariklawAs rental fees and mortgage payments continue to climb in major metropolitan areas around the U.S., tenants and homeowners are turning to short-term rental services in increasing numbers to relieve the economic burdens that have begun to build up. This option is especially appealing to individuals who travel on a regular basis for work, who travel for extended periods after retirement, or who are looking to make a profit from the rebounding real estate market. But before opening up a home, apartment, or condo to a would-be renter, it is important for the owners or lessors to take the following factors into consideration.

City Ordinances, CC&Rs, and Limitations in Rental Agreements

Housing and rental markets in major cities are already crowded, and adding short-term rental arrangements to this equation only serves to compound the difficulties in finding affordable housing. With this in mind, several cities in California have passed zoning ordinances restricting or completely forbidding the use of short-term rental agreements in otherwise long-term housing.

For example, in San Luis Obispo County, California, a short-term rental home may not be located within 200 feet of a similar rental on the same block. Further south, Palm Desert, California adopted an ordinance allowing short-term rentals of up to 27 days provided that an annual permit is obtained and a 9% transient occupancy tax collected and paid to the city. St. Helena, California enacted a similar law.

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b2ap3_thumbnail_debitor-creditor-bakruptcy-mlnariklaw.jpgCreditor-debtor rights disputes can place a small business in a precarious situation.

When the small business is in the position of the creditor, disputes with debtors can mean that the business is not able to obtain payment from the individuals and entities that owe the business money. When the small business is in the position of the debtor, the actions of creditors can deprive the small business of its monetary and other assets.

In either scenario, the small business owner may find it difficult – or impossible – to continue on with business operations. Small business owners can greatly benefit from knowing the rights they possess as creditors and debtors, and when a California small business attorney’s assistance is necessary.

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b2ap3_thumbnail_mlnarik-law-identity-theft.jpgYour identity is under constant assault. It could be by low-tech means such as stealing your mail or digging personal documents out of your trash. It could be by the more publicized means of cyber-attacks on your personal devices or the storage networks of people with whom you exchange your personal information. Either way, your personal information – your identity – is perpetually at risk. There are some defenses you can implement to slow or deter the attack, but unfortunately, today’s reality is that it isn’t so much a matter of if someone steals your identity, but when. Here are a few tips to help you deter the would-be imposters and what you can do once it inevitably happens to you.

Identity theft can destroy the socio-economic marvel you have worked so hard to become. With just a few pieces of your personal information, identity thieves can do any of the following:

  • Generate loans in your name that they have no intent of ever paying back because you are on the hook for default of repayment.
  • Transact money from your accounts or create new accounts in your name through which thieves filter money from other types of scams.
  • Become a defendant in a criminal or civil case in which they had used your identity to perpetrate a crime or fraud.
  • Max out and never make payments on credit cards issued to them based on your identity, leaving you on the hook for default payments and destroying your credit score.
  • Conduct electronic business as if they were you.

One of the best things you can do to protect yourself is to remain aware. Awareness is the key to all of your defenses:

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b2ap3 thumbnail 1st time homebuyers

As we approach the summer home buying season, here is some practical advice for first time homebuyers from my experience both as a real estate litigator and a recent first time homebuyer:

Don’t fret about the market: I am often asked if I think now is a good time to buy. My response to this recently has been “Well, what are you buying – a house or a home?” The market seems dangerously inflated at present and may very well decline in the short term. However, given long term inflationary trends, it seems highly likely prices will before too long return to these levels and ultimately go higher. If you are a speculator who wants to flip, or somebody that wants to sell in a few years and move somewhere else or upgrade off accumulated equity, it is a bad time to buy and there is a fair probability you will get hurt at these prices.

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b2ap3_thumbnail_Incapacity-Planning-mlnariklaw-office.jpgThe purpose of estate planning is to guide the transfer, and management, of your property in a manner that makes sense for your family. While it may sound simple, it can only be achieved through careful planning. Failure to plan carefully may result in unintended beneficiaries receiving your property, or result in unnecessary transfer taxes.

While planning for death is a significant aspect of the process, estate planning deals with more than just asset transferal upon your death. It can provide for asset transferal through gifts during your lifetime. Additionally, prudent planning can include management of assets in the event of incapacitation.

There are several considerations driving the process of estate planning. Family is important, so it’s vital that you consider not only who should receive your assets, but how, and when. Should your children’s inheritance be managed in a trust, or should they receive it outright? At what age should a trust terminate, and should your spouse be a beneficiary? Who should act as a trustee? Would a program of gifts over a lifetime make more sense?

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b2ap3_thumbnail_bad-neighbor-dog.jpgWhen a neighbor is being a nuisance, there are some instances where the person affected may file a claim against them. This is often seen when the nuisance affects the quality of life, the value of property or may injury someone through illness or bodily harm.

If the neighbor in question is continuing an act or activity that could cause property damage in any manner, he or she should desist. It is best to first communicate with the neighbor about the grievance before any action is taken. It is only when communication fails with this individual that further actions should be sought. A property law lawyer should be contacted and consulted to determine what to do next.

In some situations, once a lawyer has been contacted, a file may be issued to the neighbor to desist with the activity that is causing the damage. However, while this is a legal document, the person is not forced to follow the order. At that point, it may be necessary to gather evidence of the problem and determine if litigation is the next best route. No matter how obvious the situation may seem that harm has been caused by the person responsible, it is best to obtain as much proof of the incident as possible to strengthen the case.

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b2ap3 thumbnail Mlnarik Law Patricks dayWhen advising clients on legal challenges, there are two components to every piece of advice: the legal and the practical. Advice on avoiding a fine for public intoxication is no exception to this principle. This St. Patty’s Day, here is what you need to know about drunk in public laws in California, no matter where you party.

First, the legal: Public intoxication in California is restricted by California Penal Code §647(f). In order to obtain a conviction, the prosecutor must prove that you were willfully under the influence of drugs, alcohol and/or a controlled substance (including prescription medication) and in a public place. While this seems broad, there are a number of limitations to the enforcement of this provision that you can leverage to defeat your charge or reduce your penalties.

It is worth noting first that the law requires the intoxication to be willful. This means that if one were drugged against their will, such as by ingesting a date rape drug, they cannot be convicted under §647(f). Also, the law requires that you be in a public place. This includes public property (sidewalks, streets, parks) and private property open to the general public (such as nightclubs, malls and airports). This also means that if police discover you in a private place, such as your home, and bring you into a public place (the sidewalk directly outside) there can be no conviction under §647(f).
Furthermore, there are constitutional requirements that limit enforcement. Under the Fourth Amendment, the police need reasonable suspicion based on articulable facts to stop you. They can’t just pull you off the street and question you about alcohol usage. They need to be able to testify that you were stumbling or causing a disturbance in a manner that made you appear intoxicated in order to stop and test you. Once they’ve stopped you, they need probable cause to issue a citation and/or arrest you. They usually accomplish this by performing a field sobriety test. If any of these defenses or situations applies to you, be sure to raise them. The mere act of raising them, if the prosecutor finds them to be credible, is likely to result in dismissal. The DA’s office and the police do not have the resources to be fighting questionable §647(f) cases.

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Posted by on in Bankruptcy Law

b2ap3_thumbnail_chapter-13-bankruptcy.jpgMany people know that bankruptcy can affect their credit, but aren’t sure exactly how. This article focuses on your credit report after bankruptcy and the steps you can take to ensure that you are rebuilding your credit after you complete your bankruptcy case.

Most individuals file either Chapter 7 or Chapter 13 bankruptcy. Chapter 7 bankruptcy takes about three months to complete, while Chapter 13 takes between three and five years. Once a discharge is entered, no creditor who was listed in the bankruptcy schedules can thereafter try to collect the debt (unless the debt was non dischargeable, such as a mortgage or tax debt). While the bankruptcy notation stays on your credit report for ten years after entry of discharge, it becomes increasingly insignificant in the decision to grant new credit with every year that passes.

Following your case, you are entitled to have the balance of each discharged debt shown as zero on your credit report. We suggest you order a credit report about a month after your discharge is entered in order to ensure that no discharged debts are still showing a balance due. Your goal in rebuilding your credit after bankruptcy is to ensure that current, positive information is reported.

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19

b2ap3_thumbnail_naril-gorsuch-nomination.jpgThose of us who practice law for a living are often frustrated with the media coverage on legal issues. It is not difficult to talk to legal experts for an opinion, yet few outlets do this and even fewer give these experts front and center stage to direct readers.

The Neil Gorsuch nomination epitomizes this problem. If you google “Neil Gorsuch on the issues” you’ll find a lot of journalists focused on all the same wedge issues, such as abortion, gun rights and birth control that journalists typically love to focus on when covering politics. What they don’t understand, is that the courts are not politics and you can’t cover law like politics. Here, I’d like to cover what’s more important: how he plans to shape the structure, function and operation of the United States government itself.

Much of the battle in this area centers on administrative law: the rarely discussed body of law which governs executive agencies. In the post-“New Deal” era, the Courts have strongly shifted power from the Congress and the Courts to the executive branch. Separation of powers focused conservative justices, such as Gorsuch seek to shift some of that power back to the other branches.

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Posted by on in Estate Planning

b2ap3_thumbnail_valentine-plan-trust-law_20170214-004027_1.jpg

It’s the season of love – another Valentine’s Day is upon us. I’m sure you have big plans for impressing your loved ones and demonstrating just how much you care for them. But as you move along in life, the way you care, the pool of people who you care for and how you plan to care for them changes. And the way you express love changes – from romantic gestures of dinner, flowers, jewelry or chocolates to more advanced planning for the future.

This type of planning is often memorialized in your estate plan, which can take care of you and your loved ones throughout your life and after you pass away. The first step in creating a well-thought-out estate plan should be to determine your planning goal and then execute the right mix of estate planning tools to meet that goal.

If you sincerely wish to demonstrate your care for loved ones, you should consider incorporating long-term care as a part of your estate plan. Anyone who wants to maximize their assets in life and in distribution to their loved ones after they pass should also plan for the possibility of their own or their spouse’s disability and need for long-term medical care. The failure to incorporate this into your estate plan could result in leaving your loved ones with the cost and stress of petitioning the courts for control over you and your assets, and pouring money to nursing homes.

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b2ap3_thumbnail_H1B.jpg

On January 27, 2017, the President signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” This Order affects refugees and, more to the point of this article, skilled workers holding H1B visas. We will explore what impact this Order has on skilled workers, and H1B visa reforms the President intends to carry out in the near future.

I)                    I) H1B Visas

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b2ap3_thumbnail_CFPB-building.jpgNavient, formerly party of Sallie Mae, Inc., has been sued by the Consumer Financial Protection Bureau (CFPB). For years, Navient created obstacles to repayment by providing bad information, processing payments incorrectly, and failing to act when borrowers filed complaints. Because of their shortcuts and deception, the company also illegally cheated many struggling borrowers out of their rights to lower payments, which caused many borrowers to pay much more than required for their loans. The CFPB seeks to recover significant relief for the borrowers harmed by these illegal servicing failures. The lawsuit was filed on January 18, 2017.

Navient is the largest student loan servicer in the United States. It services the loans of more than 12 million borrowers, about half of which are serviced under Navient’s contract with the Department of Education. Altogether, it services more than $300 billion in federal and private student loans.

Specifically, the lawsuit alleges that Navient failed to correctly apply borrower payments to their accounts; steered struggling borrowers toward paying more than they have to on loans; obscured information consumers needed to maintain their lower payments; deceived private student loan borrowers about requirements to release their co-signer from the loan; and harmed the credit of disabled borrowers, including severely injured borrowers.

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b2ap3_thumbnail_woker-injuries.jpgInjuries at the office are common in certain industries. When the company has dangerous materials, substances, equipment or tools, employees may be harmed with greater frequency than those in office or cubicle locations. However, accidents do occur in an office setting as well that could lead to extensive damage requiring a trip to an emergency room. When this occurs, it is vital to understand what is available through workers’ compensation benefits and what is not covered.

If these packages are not purchased by the company, it is essential to know what has been put in place of this type of insurance coverage so medical treatment may be repaid.

Workers’ Compensation Explained

Packages purchased by the owner of the company or through management to provide a monetary or health insurance for illness due to accidents and issues arising at work are considered workers’ compensation programs. These plans are in place to ensure that the employee is not capable of suing management or other parts of the company for standard and severe injury. While there are certain stipulations that may allow litigious actions, most suits are avoided through these packages. Many areas are covered to ensure the laborer is taken care of as much as possible when he or she is not able to work due to the illness or injury. The monetary payouts that are provided in certain situations are paid to the employee or his or her family in the event of his or her death. Most workers are covered through these plans even if only temporarily at the company. The only exceptions are those exempt from workers’ compensation benefits.

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