Estate Planning Questions To Ask Yourself:

Many times when dealing with clients in the area of family law, the question arises whether or not that person should have a Living Trust.  Before answering that question, it is important to know what a Living Trust is.  There are two types of Living Trusts:  Revocable Living Trusts & Irrevocable Living Trusts.  With a Revocable Living Trust, you transfer our assets into the ownership of the trust.  You retain control of those assets as the trustee of your revocable living trust.  You can change or revoke the trust at any time you want.  An Irrevocable Living Trust, on the other hand, allows you to permanently and irrevocably give away your assets during your lifetime.  After you give away these assets, you have relinquished all control and interest in these assets.

When considering a Living Trust, ask yourself these simple questions:

  • Has it been more than 3 years since you reviewed your estate plan, including your will, life insurance policies and any other documents?
  • If you or your spouse passed away today, are you uncertain about what would happen to your property?
  • If you became incapacitated, would your family have to go through court proceedings to carry on your affairs?
  • Do you have minor children or other people who are dependent on you?
  • If a death occurred and court approval was required to release accounts for working capital, could it disrupt your business or family life?
  • WOULD YOU LIKE TO AVOID PROBATE OF YOUR ESTATE???

If you are concerned, please call for a free consultation about the benefits of having an attorney prepared Living Trust in your possession.

Interesting blog on the need for a Good Bail Bondsman

I like to start off my Monday’s by reading some of the many articles relating to the practice of law that I receive on a daily basis.  Below is a link to a very good short piece on the need for criminal defense attorney’s and everyone in general to have a strong relationship with a professional bail bondsman.

I would also like to shout out to Sanctuary Bail Bonds for their tireless work for the Firm’s clients.

I’m not a criminal. I don’t need a bail bondsman. Wrong!

Motions To Value Real Property

Recently, the U.S. Bankruptcy Court for the Southern District of California changed the proceedure involving Motions to Value Real Property and Avoid Juior Liens, AKA “Lien Strip Motions.”

The changes were enacted in order to streamline the Lien Striping process and allow theCourt to better handle the volume of motions currently be filed.

The most important change effecting our clients is that a full real property appraisal will be required for each and every Lien Strip Motion.  The Court will no longer allow B.P.O.’s or other evidence previously considered acceptable.  Fortunately, we always use appraisals and have an appraiser should our client’sneed a referral.

Contact us today for more information about striping a junior lien from your real property through a Chapter 13 Bankruptcy.

Adversary Proceedings to Avoid a Junior Lien? A New View From The Riverside Bench

There’s a new judge in the U.S. District Court – Central District, Riverside Division and he has a new take on what is necessary in order to ‘strip’ a junior lien on real property following a valuation motion.

According to Hon. Wayne Johnson, who sits in Courtroom 302 of the U.S. Dist. Court – Central District of California, Riverside Division, debtor’s may very well find themselves having to file adversary proceedings pursuant to F.R.B.P. Rule 7001(2) to obtain a order or judgment avoiding junior liens on real property:

“The relief granted is limited solely to valuing the collateral of a junior lienholder and determining the treatment of its claims in this bankruptcy case.  Nothing in the order granting the motion shall be construed to avoid a lien or determine the extent, validity, or priority of a lien or security interest.  The lien of the junior lienholder will remain of record and the junior lienholder shall retain all rights under the lien unless and until the Court enters a further order or judgment avoiding the lien.  If the Court confirms a plan of reorganization and the debtors timely perform all obligations under the confirmed plan, the debtors may thereafter initiate an adversary proceeding pursuant to F.R.B.P. Rule 7001(2) to obtain a further order or judgment extinguishing or avoiding the junior lien.” (emphasis added)

The full text of Judge Johnson’s tentative ruling in the Matter of Kevin W. Reily and Morgana R. Reilly may be found at http://ecf-ciao.cacb.uscourts.gov/CiaoPosted/default.aspx on pages 94-96 for April 20, 2011.

This becomes important when discussing the Lien Strip (or LAM) Motion process with clients as initiation of and representation in adversary proceedings is normally outside the scope of the initial representation agreement.  Specifically, they become more costly for the client.  As always, comments and questions are welcome.  I look forward to discussing this issue.

Frank R. Pabst

Judge Mann Confirms That MERS’ Is Not A Cure-All For Lenders’ Recording Woes

Every home owner in Southern California (as well as the rest of the Country) is familiar with the letter.  The one that comes in the mail from some corporate entity you’ve never heard of letting you know that they will now be servicing your mortgage loan.  Of course, the home owner is skeptical.  Not wanting to take any chances, the diligent home owner embarks on a Gilligan-Like “3-Hour Tour” attempting to get someone on the phone at this new servicing provider to confirm the information.

Meanwhile, for those whose homes are going to foreclosure, the larger question becomes; who actually owns the note?  Record numbers of homes are still being foreclosed upon.  We have all read and seen on the news how a lack of proper recording of all these transfers from one mortgage lender to another has provided home owners with a defense of sorts to a foreclosure action.  The mortgage companies argue that the invention of MERS (Mortgage Electronic Recording System) alleviates any legal issue concerning chain of title and thus, a particular foreclosure should move forward based on evidence of the MERS recording.

In a recent opinion involving a relief from stay motion in a Chapter 13 Bankruptcy, Judge Mann of the United States Bankruptcy Court, Southern District of California confirms the current view from the bench that MERS is not a cure-all for a mortgage company’s obligation to provide adequate proof of proper recordation of title.

“Relying upon controlling California statutory and decisional authority, the Court concludes MERS’ original involvement in this loan does not provide talismanic protection against US Bank’s foreclosure deficiencies.  US Bank’s failure to record its beneficiary status before foreclosure left [Debtor] with equitable title to his residence.”  In re: Eleazar Salazar can be found athttp://www.casb.uscourts.gov/pdf/opinions/10-17456.pdf

I’ve never been a big fan of MERS.  Even working as the foreclosure manager of a Federal Bank years ago I often found it difficult to ascertain who the current owner of a particular note was.  Judge Mann’s opinion in Salazar confirms the current view from the bench that reliance on MERS is insufficient and continues to provide a much needed weapon for home owners facing the possibility of a wrongful foreclosure action.

Frank R. Pabst

Changed Circumstances & Chapter 13 Plans; Don’t Give Up Yet!

So there you are, cruising along making your Chapter 13 Plan payments on time when suddenly, the bottom drops out … again!  You’ve suffered a lose in income or an increase in expenses that simply cannot be avoided.  Now What?

Sections 11 USC 1323, 1329 govern Modification or Suspension of Chapter 13 Plan Payments.  While a debtor may modify a plan at any time before confirmation, after confirmation the plan may be modified upon the request of the debtor, the trustee, or holder of an unsecured claim.  However, the request must be approved by the Court upon a noticed motion and hearing.

Furthermore, a request to suspend payments on the plan may be made is the suspension will not extend the plan beyond the maximum plan length of 60 months (5 years).  In order to amend or suspend payments established by a confirmed plan, the debtor’s financial circumstances must have changed and those circumstances must be set forth in the motion.  Additionally, the motion must set forth the payments to be modified or suspended.  Attached to the motion should be proof of the changed circumstances (pay stub, termination notice, etc.) as well as amended Schedules I and J.  Also, a proposed amended plan should be submitted.

In summary, the Trustees and Courts are well aware that Chapter 13 Plan’s last for some time (3 to 5 years) and are sympathetic to changing circumstances.  Just because your financial situation changes, you don’t have to give up on your Chapter 13 Plan.  Consult counsel for a re-evaluation of your financial situation and to see whether a modification or suspension of your plan is feasible.

As always, please do not hesitate to contact me for more information on this topic and others.

Best Regards,

Frank R. Pabst, Esq.

Felony Leaving the Scene of an Accident can be a Positive Outcome

Recently attorney Frank R. Pabst took on a major media case in which the alleged victim, Miguel Rojas, a known local gang member, was killed in an auto accident.  The broadside collission case which resulted in the death of Mr. Rojas has received major media attention, having been reported on by San Diego Channel 10 News, CBS Channel 8 San Diego, Fox 5 San Diego, the North County Times, the San Diego Union Tribune, 760KFMB San Diego Talk Radio, as well as the Escondido Police Website.  The defendant and Mr. Pabst’s client in the case is Juan Carlos Carrillo and the case was heard in North County Courthouse, Vista, CA.

On July 3, 2011 at approximately 2:15 a.m., Juan Carrillo was driving his 1995 Lexus ES300 eastbound on Washington Ave approaching Fig St, and had two passengers in his casr at the time.  The alleged victim, Miguel Rojas, was driving a 1993 Dodge Caravan and was stopped in the driveway of 715 E Washington Ave.  As Carrillo approached the driveway at 715 E Washinton Ave, he is alleged to have been traveling approximately 73 mph in a 35 mph zone.  Mr. Rojas pulled out of the driveway onto Washington Ave in front of Mr. Carrillo producing a broadside collision.  During the collision, Mr. Rojas’ vehicle immediately caught fire and Rojas was unable to exit the vehcile.  Mr. Rojas was pronounced dead at the scene.  The cause of death was later determined to be blunt force trauma to the head and neck and smoke inhalation and burns.

Immediately following the accideent, friends and family of the victim began making death threats to Mr. Carrillo.  In fear for his life, Mr. Carrillo fled the scene of the accident.  Mr. Carillo along with his two passengers, are alleged to have ran away from the scene and were picked up by an unidentified person.  The unidentified person drove passenger Francisco Carrillo to Palomar Medical Centrer and Juan Carrillo went home.  Mr. Carrillo later went to the Escondido Police Department and claimed that Francisco Carrillo was the driver of the vehicle.  However, evidence demonstrates that Juan Carrillo was in fact the driver and Mr. Carrillo turned himself into the authorities admitting that he was indeed the driver of the vehicle involved in the collission.  Mr. Carrillo was later arrested and booked into the Vista Detention Facility and charged with violating Cal. Vehicle Code 200001(b)(2), leaving the scene of an accident resulting in death or serious bodily injury.

Due to the possibility of an additional charge of Gross Vehicular Manslaughter, Mr. Carrillo faced a possible exposure of up to four (4) years in a state prison.  However, as a result of negotiations and a Stipulation with Deputy District Attorney Brock Arstill to bind over at the Preliminary Hearing stage of the case, Mr. Pabst was able to successfully reduce client’s exposure.  Mr. Pabst was ultimately able to avoid an additional charge of Felony Gross Vehicular Manslaughter and negotiated a plea of guilty to the lesser charge of Felony Leaving the Scene of an Accident.  Consequently, Mr. Pabst was able to reduce the overall possible exposure to no more than one (1) year in a local County Jail.  Ultimately, Mr. Carrillo is likely to serve less than seven (7) months in County Jail for the lesser charge.

Criminal Justice Realignment

In an apparent response to the United States Supreme Court order to reduce California’s prison population to 137 percent of capacity by May 24, 2013 and the State’s burgeoning budget crisis, Governor Jerry Brown signed into law A.B. 109 (Cal Stats 2011, ch 15, April 4, 2011) effectively transferring responsibility for nonserious, nonviolent and non-Pen C §290 registerable sex offenders from the state to the counties. Together with the amendments effected by A.B. 117 (Cal Stats 2011, ch 39, June 30, 2011) and several trailer bills (see e.g., A.B. 118 (Cal Stats 2011, ch 40, June 30, 2011), A.B. 116 (Cal Stats 2011, ch 136, July 27, 2011), A.B. 109 is referred to as “realignment.” The provisions of realignment apply prospectively only and affect largely felony sentencing, pretrial and postconviction credits, postrelease supervision and parole revocation.

The sentencing provisions of realignment are operative on and after October 1, 2011. They represent the largest change to California sentencing since Three Strikes. Members of the bench and bar should become familiar with these provisions for the purposes of charging, advising, and sentencing defendants.

For a comprehensive discussion of this legislation, see Garrick Byers’ article, Realignment. Mr. Byers is a Senior Defense Attorney at the Fresno County Public Defenders Office and is a co-author of CEB’s California Criminal Law Procedure and Practice. He has generously given CEB permission to reprint his insightful analysis.

The main sentencing provisions are:

  • The term felony has been redefined to mean an offense punishable by death or by imprisonment in the state prison or by imprisonment in the county jail for more than a year. Pen C §17.
  • Sentences for most felonies that are nonserious, nonviolent and nonregisterable sex offenses (so-called “non-non-non felonies”), if the defendant also has no prior serious, violent or registerable convictions, will now be served in the county jail. See Pen C §1170(h)(2)-(3). (The length of felony terms have not changed.)
  • Felonies with nonspecified terms in the underlying statute will be punishable by a term of 16 months, 2 years or 3 years in the county jail. Pen C §§18; 1170(h)(1). Sentences for these offenses may include a period of county jail and a period of probation not to exceed the maximum possible term. Pen C §1170(h)(5).
  • Probation, deferred entry of judgment and other alternatives to prison continue to be available sentencing options.
  • County jail terms of more than 1 year for a felony are priorable as a sentencing enhancement. Pen C §667.5(b).
  • All county jail inmates except convicted murderers and those being committed to state prison for violent felonies can earn 50 percent conduct credits under Pen C §4019.
  • Counties may permit electronic monitoring in lieu of bail (Pen C §1203.018) or home detention in lieu of jail (Pen C §1203.016). Time on electronic monitoring or home detention counts toward mandatory minimum sentences. Pen C §2900.5.
  • There are over 60 felony offenses that are nonserious, nonviolent and nonregisterable sex offenses that are nonetheless punishable by a term in prison. These offenses generally involve a weapon or injury. See Byers, G, Realignment, Appendix II.
  • Individuals convicted of a current or prior serious or violent offense, required to register under Pen C §290 or whose sentence is enhanced under Pen C §186.11 (taking more than $100,000 under certain circumstances) must serve their current term in prison. Pen C §1170(h)(3).
  • Individuals sentenced to consecutive terms where one term (whether principal or subordinate) is punishable by state prison must serve the aggregate sentence in prison. Pen C §1170.1(a). (No statutory provision yet addresses concurrent sentences.)

The main postrelease and parole provisions operative October 1, 2011 are:

  • Individuals convicted of felonies punishable by a prescribed term of county jail in the underlying statute will not be supervised after release; there will be no period of parole.
  • Only those individuals convicted of a straight felony (where the term is not prescribed by the underlying statute and, therefore, is 16 months, 2 years or 3 years under Pen C §1170(h)(1)) may be sentenced to a period of county jail and a period of probation not to exceed the maximum possible term. Pen C §1170(h)(5). See Legislative Counsel’s Digest to A.B. 116 (Cal Stats 2011, ch 136).
  • Prison sentences for non-non-non felonies will be followed by a period of up to 3 years of Postrelease Community Supervision administered by the counties. Violations of Post Release Community Supervision can be punished in many ways, including flash incarceration. Revocations must be done by a new Court Revocation Officer. Pen C §§3450-3458.
  • Offenders released from state prison after serving a sentence for a third strike or a serious or violent felony or who are classified as high risk sex offenders or mentally disordered or who are on parole prior to October 1, 2011 will be under state parole supervision. See Pen C §§3000.08, 3000.09.
  • Parole revocations will be served in county jail for a maximum of 180 days.
  • Only persons previously sentenced to a term of life can be returned to prison on a parole revocation.

Beginning July 1, 2013, the parole revocation process will become a county court-based process. Until then, parole revocations will continue under the Board of Parole Hearings.

After July 1, 2013, the BPH will be responsible for:

  • Parole considerations for lifers
  • Medical parole hearings
  • Mentally disordered offender cases; and
  • Sexually violent predator cases

The Division of Juvenile Justice is unaffected by realignment. See Legislative Counsel’s Digest for A.B. 117 (Cal Stats 2011, ch 39).

To Hire Or Not To Hire. Private vs. Public Criminal Defense

I recently saw the following article posted on the website of a collegue, mentor, and exceptional criminal defense attorney here in San Diego and thought it might be of interest to some of my readers as well.  Please review the following article originally produced by Adam M. Ruben and feel free to comment back or tweet me @esq4me:

In the aftermath of trouble some of us may be left puzzling over what to do next. Who should we call? Where should we turn for advice? Perhaps the thought of sprinting towards the Mexican border seems tempting. But what most of us don’t debate is whether we should be represented by a lawyer. We know that even if we don’t choose a San Diego criminal defense attorney, a public defender will be chosen for us.

Many of us may take for granted this right to be represented by a lawyer in court. But the right to a publicly appointed attorney didn’t become concrete until 1963. In the case of Gideon v. Wainwrightthe Supreme Court held that the Sixth Amendment guaranteed a court appointed attorney for all indigent criminal defendants at the state’s expense. Historically, the success rate of these public defenders equaled that of private San Diego criminal lawyers. But beginning in the 1980’s this equilibrium started to disappear. Studies illustrated that hiring private San Diego criminal defense council had become significantly more effective.

Why has a private San Diego criminal defense lawyer become so much more successful than a public defender? Certainly we all have the preconditioned image of the stereotypical bleary eyed, overburdened, court appointed lawyer rushing into the courtroom to provide an underprepared and hasty defense. Most would associate this overworked attorney with the assumption that crime has become significantly more widespread, and accordingly there aren’t enough public criminal lawyers to provide the services needed. However, the crime rate has actually been decreasing in San Diego County since 1989 when the number of crimes reported by the San Diego Police Department reached its all time high of 102,991. In 2011 the numbers for total crimes reported had deflated to 34,813. Yet the number of cases allocated to a single public attorney has continued to increase.

The simple explanation for this lies with budget cuts. The money allocated for court appointed San Diego criminal defense attorneys comes from public funds. The money for public services has been drastically reduced, especially since the onset of the global economic recession. Consequently, spending for public criminal defense attorneys has decreased dramatically. This unhappy trend coexists alongside the tightening of the general public’s purse strings. Those convicted of a crime have become more reluctant to choose a private San Diego criminal defense attorney and are relying on public criminal defense instead.

The influx of people choosing public defense compounded with the cuts in public spending means significant disadvantages for those not willing to spend money for a private San Diego criminal defense attorney. Public defense attorneys face economic disincentives not faced by private counsel. Unlike private criminal defense lawyers, public defenders have no incentive to allot adequate time for lengthy pre-trial motions and therefore have a tendency to choose the quickest route over the best option for the defendant.

Professor William Stunz, a Harvard Professor, explored this conundrum in a study titled, “The Uneasy Relationship between Criminal Procedure and Criminal Justice.” He concluded that these overworked public attorneys file significantly less time-consuming motions then private criminal defense lawyers. Furthermore, when public defenders are juggling two similar cases, they will chose to plea bargain the more time consuming case. This is an unfortunate outcome since private defense counsel negotiates much more favorable plea bargains than public criminal defense attorneys. In some cases, innocent people are persuaded to accept plea bargains where they admit guilt simply out of a lack of options provided for them. A private San Diego criminal defense attorney has the time to explore all options available to the accused and does not face these same time restraints.

Knowing that the odds are stacked against a defendant should they choose public criminal defense is the first step towards taking the right step. The appropriate solution to avoid having a rushed trial or agreeing to a bad plea bargain is representation by Adam M. Ruben, San Diego criminal defense attorney. Paying the money for a good defense lawyer twists the convention colloquialism, “go big or go home.” Instead, go big then go home, because at the end of the day, where else would you rather be?

DUI & DUI RELATED OFFENSES – THINGS TO CONSIDER

The prosecution must prove that the defendant was in fact the one driving the vehicle. In a case where there are no witnesses to an accident, intoxication is not enough.

There must be evidence provided that the officer had probable cause to stop, detain and arrest.

If the Miranda rights were not given at the appropriate time, incriminating statements may be concealed.

In some states (including California), if a chemical test was refused or given incorrectly, and you were not advised of the consequences of this, it may be a reason to invalidate a DMV license suspension based upon the refusal to provide a breath/blood sample.

The officer’s observations and opinions as to what the officer considers as “failing” can be questioned. For example, the circumstances under which the field sobriety tests were given. Witnesses can testify that you appeared to be sober.

There exists a wide range of potential problems with blood, breath or urine testing. Many different defects in analysis can be brought out in cross-examination of the state’s expert witness.

The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol. It can take thirty minutes to three hours for full absorption. If there is food that has not yet digested, this could be delayed. Because of this, inaccurate test results are very possible.

The prosecution must prove that the blood, breath or urine test complied with state requirements.

If you or someone you know has been charged with a DUI or a DUI-related offense, you need to act quickly and contact The Law Office of Frank R. Pabst immediately.  Don’t run the risk of causing more harm than necessary.  Act now in order to help us help you protect your rights.

The prosecution must prove that the defendant was in fact the one driving the vehicle. In a case where there are no witnesses to an accident, intoxication is not enough.

There must be evidence provided that the officer had probable cause to stop, detain and arrest.

If the Miranda rights were not given at the appropriate time, incriminating statements may be concealed.

In some states (including California), if a chemical test was refused or given incorrectly, and you were not advised of the consequences of this, it may be a reason to invalidate a DMV license suspension based upon the refusal to provide a breath/blood sample.

The officer’s observations and opinions as to what the officer considers as “failing” can be questioned. For example, the circumstances under which the field sobriety tests were given. Witnesses can testify that you appeared to be sober.

There exists a wide range of potential problems with blood, breath or urine testing. Many different defects in analysis can be brought out in cross-examination of the state’s expert witness.

The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol. It can take thirty minutes to three hours for full absorption. If there is food that has not yet digested, this could be delayed. Because of this, inaccurate test results are very possible.

The prosecution must prove that the blood, breath or urine test complied with state requirements.

If you or someone you know has been charged with a DUI or a DUI-related offense, you need to act quickly and contact The Law Office of Frank R. Pabst immediately.  Don’t run the risk of causing more harm than necessary.  Act now in order to help us help you protect your rights.

San Diego Criminal Defense/DUI & Family Law Attorney