Archive for March, 2012

Do I really need a lawyer?

Monday, March 26th, 2012

In Virginia, you are allowed to represent yourself in almost all legal matters at the trial court level.  The only other person that can legally represent you is an attorney that is licensed to practice in your jurisdiction.

However, you should be aware that a company is not a person – it is a legal entity that cannot stand or speak and it doesn’t need to drink when it gets thirsty.  What this means is that if your company is involved in a legal dispute, you will need to have an attorney represent the company in court.

Even in those situations where you CAN represent yourself, it is often a good idea to hire an attorney.

First of all, you are emotionally involved in the legal circumstance and we all tend to think differently, or not think at all, when our emotions are involved.  The attorney also gets involved in your case, but he/she is trained to present the arguments in a logical manner that will assist the court in deciding in your favor.

An attorney also knows what the court thinks is important and he/she will make sure that the court knows those things and not dwell on things that really aren’t important when the court makes their decision.  As an example, I had a DUI case where the driver told the officer that he had been drinking margaritas.  The driver thought he had a great defense because he had really been drinking whiskey sours.  The driver didn’t realize that it doesn’t really matter what he was drinking, the important part is that his blood alcohol content was over the legal limit.

Also, the courts have very specific ways in which things must be handled and if you don’t do it just right, it is possible that the court will dismiss your case or rule against you.  I know this sounds like the courts are set up to provide work for lawyers, but the rules are really there to keep the legal process moving smoothly.  If you’ve ever been to court on one of those days when the courtroom is packed with people waiting their turn, you can understand why it is important to have rules about how things are handled.

But, even if you need an attorney for part of the process you can often do other parts yourself.

We encourage people to go to court for a ‘return date’ themselves and hire us after that court date.  Why?  You can often sit for hours waiting for your case to be called only to go to the front and have the judge give you a date for the trial.  I will be glad to sit with you, but it can get very expensive to hire an attorney to sit for hours just to stand in front of the judge for 30 seconds to say ‘we dispute the charges’.

How do you know if there is something you can do yourself?  When I have a consultation with someone, I tell them what to expect and how I would proceed if it were my legal situation.  I also explain what parts they can do themselves and when they should hire a professional.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

How To Pay Your Criminal Restitution Through A Chapter 13 Bankruptcy

Tuesday, March 20th, 2012

criminal restitution in chapter 13 bankruptcy

Today we have a guest post from Jay S. Fleischman, a great consumer bankruptcy attorney who is a member of the National Association of Consumer Advocates, a member of — and the New York co-chair of — the National Association of Consumer Bankruptcy Attorneys, and a partner in the New York law firm of Shaev & Fleischman, LLP

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Let’s say you’re convicted of a crime.  Your lawyer can get you jail time or criminal restitution, perhaps a mix of both.  Here’s how to handle that restitution order using the U.S. Bankruptcy Code.

Bankruptcy is usually thought of as a way to get out of credit card debt, stop foreclosure, and the like.  And though you can’t wipe out a criminal restitution order using the bankruptcy laws, you can leverage the system to repay that debt in a way that doesn’t interfere with your ability to earn a living.

Discharge of Criminal Restitution In Bankruptcy

Under 11 USC 523(a)(7), you cannot discharge a debt that is for a “fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty”.  In other words, you can’t wipe out your criminal restitution obligation in bankruptcy.  When you file for Chapter 7, which is designed to lead to a discharge of your obligations, you will still owe the criminal restitution when you complete your case.

Chapter 13 Bankruptcy As Repayment Tool

There is, however, a different type of bankruptcy case that is available to those who have regular monthly income.  Under Chapter 13 bankruptcy you can repay a portion or all of your debts over a 3-5 year period.  The amount you are required to pay each month under Chapter 13 is dictated by a combination of your income, expenses and debt, and the monthly payments go to a bankruptcy trustee for distribution to your creditors according to a legally-mandated formula.

Chapter 13 is an elegant way of reorganizing your financial life and structuring repayment in such a way as to minimize the impact on your day-to-day life.  While you’re in an active Chapter 13 case the government cannot execute against your income or assets in connection with the restitution award, so you won’t need to worry about your paycheck or bank account being seized during this period of time.

If you’re in a Chapter 13 bankruptcy, however, you’re going to need to repay that restitution award in full because, as in Chapter 7, the claim won’t be discharged at the end of the case.  That’s why it’s important to structure your Plan accordingly.

Order Of Repayment In Chapter 13

Debts get paid in a particular order under the U.S. Bankruptcy Code.  The U.S. Bankruptcy code has at its core the policy of fairness to all creditors of equal legal priority.  At the lowest priority of repayment stands the general unsecured claim, which includes credit cards and medical bills.  § 507(a) of the U.S. Bankruptcy Code lists those debts that are entitled to priority over other unsecured debts. Although the list of priority claims includes certain type of debts that would also be nondischargeable, criminal restitution claims are not among those listed.  In addition, the bankruptcy court can’t change the priority scheme established by the Bankruptcy Code.
If you file for Chapter 13, your repayment plan can’t attempt to repay your criminal restitution award before other general unsecured creditors except in extremely limited situations.  In fact, the reported cases addressing separate classification of restitution claims have uniformly denied confirmation. See, e.g., In re Crawford, 324 F.3d 539 (7th Cir. 2003)In re Bowles, 48 B.R. 502 (Bankr. E.D. Va. 1985)In re Williams, 231 B.R. 280 (Bankr. S.D. Ohio 1999)In re Limbaugh, 194 B.R. 488 (Bankr. D. Or. 1996).

The Ever-Lasting Chapter 13 Bankruptcy

If you owe money for criminal restitution, but you’re not going to be able to repay it during the course of a single Chapter 13 bankruptcy case, you may want to consider whether it makes sense to file one case, go through the entire repayment plan, and then file another one as soon as the first one is completed.  This gives you the opportunity to restructure your finances over a longer period of time than would otherwise be possible in a single bankruptcy case.
There are going to be considerations once you complete your first repayment plan, such as whether your income is higher or lower than it was when you began your case.  The second repayment plan will need to reflect your new income and expense levels, but for some it’s a valuable tool to help wrangle that restitution award into shape.

Jay S. Fleischman is a lawyer who helps people file Chapter 13 bankruptcy.  He also sues harassing bill collectors on behalf of his clients.

Image credit:  stevendepolo

Virginia Advance Health Care Directive Registry

Tuesday, March 13th, 2012

In 2008, the Virginia General Assembly passed legislation to allow the creation of a secure online registry of advance medical directives.  This registry is now available at www.VirginiaRegistry.org

This Registry allows Virginia residents to store copies of their health care related legal documents in a central electronic space so that these documents can be found quickly by their doctors, hospitals, family members, emergency responders and anyone else that is authorized by the resident.  This electronic Registry makes it easier for people to distribute the information that is held in the paper legal documents that are otherwise stored in safe deposit boxes, home safes, home fire-proof boxes, or in a drawer in the home.

These health care related legal documents generally include an Advance Medical Directive, a Power of Attorney for Medical Purposes, a HIPAA release and an authorization for anatomical gifts.

There is no charge for the use of this Registry by Virginia residents.

The Online Registry website is a public-private partnership between the Virginia Department of Health, UNIVAL,Inc  and Microsoft Corporation to provide a secure environment using a Personal Identification Number (PIN) and a password needed to access your documents.  Once you have registered, you will receive an identification card containing the information that can be used by professionals to access your documents when needed.  When you sign up for this service, you can also enter the email addresses of those you want to have access to your documents and the system will notify them about the Registry so they will know how to access your documents when they are needed.

According to information on the site, all registered users will need to renew their Advance Directives on an annual basis and the system will send you a reminder.  If the user does not renew their documents within 6 months of being notified, their documents will be moved to an archive system and held there for 5 years.

We always encourage our clients to provide paper copies of their Medical Directives to their doctors, hospitals and to the person that is named as their Health Care Power of Attorney.  This online Registry is another way to ensure that your Medical Directives will be accessible by those that need to know your wishes.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Can I be found guilty of DUI when the car is not turned ‘on’?

Tuesday, March 6th, 2012

In Virginia, the code section that is used for a DUI charge is section 18.2-266 which begins with ‘It shall be unlawful for any person to drive or operate any motor vehicle…’

There are the obvious cases where the car is in motion and the driver has been stopped by a law enforcement officer. But what about the times when the car is not moving?

For example, there have been previous cases where the engine was running but the transmission was in ‘Park’, where the key was in the ‘on’ position but the engine was not running, or where the key was in the ‘accessory’ position and the radio was playing, etc.

Many times, a person is charged with DUI when he/she is found asleep in the car, sitting in the driver’s seat, with the key in the ignition, sometimes with the engine turned off and the question has been whether or not they were considered to be ‘operating’ the vehicle.

On March 2, 2012, The Virginia Supreme Court issued an opinion in the case of Jean Paul Enriquez v. Commonwealth of Virginia that has established the rule that ‘when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of code section 18.2-266.’

Obviously, the best solution is to not drive if you have been drinking at all.

It is safer for everyone if you get a cab home and come back tomorrow to get your car.

But, if you feel that you need to stay with your car, don’t sit in the driver’s seat and don’t put the key in the ignition or you might be found guilty of a DUI, even if the car is not in motion.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.