Why More Judgments Will Be Purchased Cash Up Front

Most people know that across the country, courts are cutting back on services and hours, and raising their fees. What is not as well known is that almost every business day, another court decides that assignees of record, enforcing judgments assigned to them on a contingency basis, cannot represent themselves in their court.

Some judges and courts have been persuaded by either lawyers or others, that those enforcing judgments for others are performing an Unlawful Practice of Law (UPL). It does not matter to those courts that the judgments being recovered have been properly assigned to the judgment enforcer. This article is my opinion, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.

Contingent judgment recovery is very important because not every judgment is large enough, or has a debtor rich enough, to interest a contingency recovery lawyer or a judgment buyer. Sometimes individual courts do not allow contingency judgment enforcement, and sometimes all courts within an entire state no longer allow it.

More than one lawyer has told me that judgment enforcers should not use the words "contingent" or "contingency" in any communications with original judgment creditors, their contracts, in emails, or on their websites. I also heard that one should not even use those words in conversation because someone might get deposed by a judgment debtor's lawyer.

The problem is becoming so serious that most judgment enforcers should consider only buying judgments outright, or be ready and willing to hire an attorney to represent them in court.

You might be able to change your judgment business to a judgment outsourcing or judgment referral business, or hire a lawyer to file all court paperwork and make all court appearances. You find the judgments and the assets, and your attorney does the rest. Look for the article I have written about using a lawyer in your judgment business. Another idea is to simply avoid courts that do not like assignees of record.

As of September 2012, most courts still allow assignees of record working on contingency, to represent themselves to recover a judgment. Note that most judgment enforcers are not going to run into this issue soon, because they will be recovering judgments from pro-se debtors or dealing with attorneys that do not come up with an UPL argument. However, with larger judgments, this kind of challenge may soon become routine. The larger the assets involved, the more often this may happen.

I am not a lawyer. My opinion is that if a judgment is bought for cash upfront, with no lingering contingency financial obligations; the enforcers's right to represent themselves for a judgment they own, will probably stand up to possible attacks by a judge or the judgment debtor's attorney.

Collecting an Unpaid Judgment Against a Judgment Debtor Who Uses Several Aliases   

No Prudence - No Insurance

When arranging your business, eventual risks leading to losses should be kept in mind. A lot of people believe that the best cure of risk effects is an insurance policy. Still, it's not always this way, and the following example is the proof.

A Russian client contracted on delivery of perishable goods from Turkey to Russia. The shipment was accomplished by a Russian carrier as well, and he set up a liability insurance contract.

On arrival of the goods to the country, it showed up that half the goods in the truck simply got rotten. The insurance company was to settle the claim, but first they started checking the conditions of carriage of the fruits to Russia. The examination showed that the carrier packed the goods in a way so that there was no ventilation in the truck. The goods had been as if in a thermos bottle, and that's why well expectably spoiled. The carrier, in bounden duty, was obliged to foresee that but showed up carelessness and irresponsibility. At the same time he tried to prove that the goods had initially been of poor quality.

The client, as it was, wasn't settled the claim for. And the carrier is expected to be recovered a large amount from. What are the conclusions to be made for those who are in that business?

First. Chose partners with a responsible approach to the matter. After all, in this situation all of the goods got spoiled because of a single person. A more thoroughly selected carrier company, most probably, wouldn't let such occurrence take place.

Second, and the most essential. When organizing your activity and making deals mind that work with risks should be arranged on a professional basis. Thus, in that case it would have been appropriate - for arrangement of transportation - to involve a Russian forwarder with insurance of his liability. Then all the loss would have been covered either by the forwarder or by his insurance company as in that case there would be no grounds for refusal to pay.

Properly executed documents is the guarantee for having recourse

Properly and duly settled actual damage amount - that's what is to be done if you have losses caused, goods is damaged or lost. Unfortunately, not everyone realize how to do that. As the result - frequent misunderstandings between counter agents and impossibility to recover a damage amount.

Here is a case of the kind.

Russian client concluded a contract of carriage to Russian Federation. The goods was glass jars, and when unloading in Russia it cleared out that that part of the jars were broken.

The question arose - how to settle the damage amount. The client made a record in the waybill saying that a pallet with the goods was damaged, and after that sent a claim to the carrier. Answering the claim the carrier inquired documents confirming the damage amount. As the consignee hadn't presented such papers, the carrier refused the recovery and, consequently, the client was forced to go to the law. However, at the court there was a disappointment for him, either. The court, having investigated the complaint, rejected the claim as those confirming documents were missing.

As a result, the client was left with nothing though, in fact, he was caused damage to and it, on equity basis, should have been recovered.

So as not to get in such situations one should realize that for settling a damage amount it's necessary to take advantage of reliable and legally right procedures. In this case the needed document could be the act made up at presence of an independent expert and with determined damage amount or with damages fixed. And the act must be executed immediately - at the moment of revealing the fact of goods' damage. On no account one shouldn't be confined to a record in a waybill and, moreover, to assess a loss amount "by eye" so that further on not to pay in addition for the carrier's service, as some businessmen do sometimes. If the situation is complicated and multiple-valued and your acquirement is obviously insufficient, don't hesitate to turn to experts.

Basic Uncontested Probate Procedure in California

The topic of this article is basic uncontested probate procedure in California. The discussion will briefly describe the procedures and issues for an uncontested probate in California.

The word probate generally refers to what happens to a person's property when he or she dies. The purpose of probate is to see that the debts and taxes of the person who has died, known as the decedent are paid and that the remaining property gets to the rightful owners.

Assets held in the decedent's name alone are called probate property and usually require a court proceeding to determine the beneficiaries. Probate property passes to the persons named in the will, or if there is no will, according to California law on intestate succession. The person who oversees the probate proceeding is commonly called the executor or administrator. A will normally names an executor, usually a close relative. If there is no will, the court will appoint an administrator in a certain order of priority, starting with the surviving spouse, then children, etc.. It generally takes a minimum of 6 to 9 months to complete a formal probate court proceeding.

Certain property does not pass through formal probate such as pay on death accounts at banks, sometimes referred to as "Totten trusts", certain accounts that name a specified beneficiary or beneficiaries with stockbrokers and other financial companies, the proceeds of life insurance policies, certain retirement accounts such as IRA's, and other types of property held in joint tenancy, or community property with the right of survivorship, etc. If the gross value of the property of the estate is less than $150,000 as determined by a probate referee, a formal probate is not required. Instead a special petition to determine succession to real and personal property is filed with the Court, this procedure is much simpler and quicker than a formal probate. There is also a very simplified procedure which can be used if the estate property is only real property with a gross value that does not exceed $20,000 as determined by a probate referee.

If there is a will then a petition for probate of will and letters testamentary must be filed. If there is no will then the petition is called a petition for probate and letters of administration.

Once the petition for probate has been filed, a notice of petition to administer estate must be published in a legal or "adjudicated" newspaper that publishes probate notices. The notice must be published before the hearing on the petition for probate. The first publication must begin at least fifteen calendar days before the hearing. All of the beneficiaries and other persons mentioned in the will must be mailed notice of the petition to administer estate at least fifteen calendar days before the hearing.

In most uncontested cases either the will waives bond, or the all of the heirs sign a waiver of bond. Most courts will waive the bond if everyone has signed a waiver, particularly if only limited authority under the Independent Administration of Estates Act is requested. Limited authority means that the executor or administrator may not sell any real property, or encumber any real property without obtaining court permission, and any sale of real property must be confirmed by the Court and a special notice published. If full authority is requested, most Courts will require a bond, as well as when the proposed executor or administrator is not a resident of California.

Note that every bonding company that the author has ever dealt with has refused to issue a bond for someone who is not represented by an attorney. Depending on the particular case, there may be ways to avoid or at least greatly reduce the need for a bond. This includes depositing money or other property such as stocks into a blocked account, with no withdrawals permitted unless a Court order is obtained. There are other ways such as the use of personal sureties but such methods are rarely used because of their complexity.

Full authority means that the executor or administrator does not have to obtain Court permission to sell any real property or encumber any real property. Instead they must serve all heirs, beneficiaries and other persons entitled to notice with a Notice of Proposed Action describing in detail what they plan to do, the notice must be served at least fifteen days before the proposed action. If anyone objects then the Court will hold a hearing on their objection.

At the hearing on the petition for probate, if no objections have been received, the Court will appoint the executor or administrator, and also appoint a probate referee to appraise certain estate property such as automobiles, real estate, and other types of property which do not have a readily ascertainable cash value such as stocks, bonds, etc. Cash in the bank is appraised by the executor or administrator.

Notice to creditors must also be given. Even if no creditors exist a notice must be served on the California Franchise Tax Board. Any creditors given notice have until the later of sixty days after the notice was served, or four months after the letters were issued to file a creditor's claim. The executor or administrator must approve the claim in whole or in part, or reject the claim. If a creditor's claim is rejected then the executor or administrator must wait three months once the notice of rejection was served before a petition for final distribution can be filed.

Once all creditor's claims have been dealt with, and after at least four months have passed since the letters have been issued, then a petition for final distribution may be filed.

The petition for final distribution will generally request that the Court approve all actions taken by the executor or administrator, and must provide a complete accounting of the estate unless all heirs or beneficiaries have waived the accounting. The petition must also list the current value of all estate property, and all heirs or beneficiaries entitled to property of the estate, as well as what percentage they will receive. Also if the executor or administrator is requesting their statutory fee, or the fee for the attorney, a detailed breakdown of how the proposed fee is calculated must be included in the petition.

If the Court approves the petition for final distribution then an Order will be signed by the Judge. Then once all heirs and beneficiaries have signed a receipt stating that they have received all property to which they were entitled, the receipts are filed with the Court along with an Ex-Parte Petition for Final Discharge which requests that the Court discharge the executor or administrator. Once that is done the probate is over, if a bond was issued than the bonding company will cancel the bond once they have received a copy of the Order of Final Discharge.

If you enjoy this article, tell others about it.

Yours Truly,

Stan Burman

Copyright 2012 Stan Burman. All rights reserved.

Please note that the author of this article, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this article is NOT intended to constitute legal advice.

These materials and information contained in this article have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this article is not intended to create, and receipt does not constitute, any business relationship between the author and reader. Any readers should not act upon this information without seeking professional counsel.

Qualifications to Be a Fire Investigation Expert Witness

Introduction

Before fire incidents are ruled out as arson (or the criminal act of burning something intentionally), they are subject to strict and thorough investigation. This is to make sure that all angles and possible aspects of the incident are considered before the court makes a sound decision. So to carry on with the investigation, a fire investigation expert is called in to look at the case.

Why investigate?

Fire is one of the most damaging disasters that people can experience. When a building, an establishment, or a structure catches fire, almost everything is ruined. So sometimes, some people intentionally set their properties on fire in their attempt to manipulate their insurance coverage or to simply sweep out important documents. Therefore, the expertise of a fire investigation authority is needed to know whether or not a fire incident was planned.

Qualifications to be a Reliable Fire Investigation Expert Witness

A fire investigation professional's testimony is the cornerstone of fire cases. It serves as the framework for all other evidences. So to make sure that their testimony is admissible in court, fire investigation experts do their homework and gather information to be credible and factual. But before a fire investigation specialist can be allowed to give his testimony, he must comply with the strict rules and standards of the court.

What should the qualifications of a fire investigation expert be?

First, these expert witnesses must have undergone years of training and education in their field. They must have an above-average knowledge, wisdom, and real life experiences to be qualified. Most of the time these, professional witnesses are former firemen and former members of rescue teams. They are usually seasoned and have experienced almost all possible situations of fire cases.

To prove what they say they are, these professionals are subject to investigation themselves. Their educational background, certificates, professional accreditation, and membership or affiliation in a professional organization will be questioned and verified.

Next, these experts must know the rules of the state on arson, fire, and things related. In addition to that, they must know how the legal system works, to know what kind of documents needed to be prepared.

But aside from those, a professional wanting to be an expert witness must be able to handle the demands of the court. After all, the true measure of an expert fire investigator is more than the technical skill and experience in the field, which enable the investigator to determine a fire's cause and origin. The ability to effectively and convincingly testify at trial is the true measure of an "expert" witness.

Importance of a Doctored Recordings Expert Witness

Introduction

In every case, the usual and the first protocol of investigation is usually using visual evidences. But for some cases, there are things that can only be solved through the use of others senses. And one of them is through the use of audio or recording investigation. For instance, in legal cases involving recordings and tapes that are believed to be manipulated or "doctored," an expert in this area may be summoned to provide his testimony.

Importance of a Doctored Recording Expert Witness

As our world progresses through time, not only does our technology get more and more sophisticated. But also, state-of-the-art gadgets are now affordable. For instance, more and more equipment and gadgets that make use of digital technology are now readily available to the public. While this has several positive effects and benefits, one cannot discount the possibility that sometimes, these gadgets can be used to harass, embarrass, or abuse other people.

One of the typical mis-uses of these gadgets come in the form of doctored recordings and tapes. Almost everyday, two parties get involved in civil and criminal cases that have something to do with these "doctored" tapes. Fortunately, with a professional whose expertise lies in determining whether or not the alleged "doctored" recordings are indeed manipulated, these legal cases can be solved.

How can a recording expert proceed?

First, he goes over the case to have full understanding of it. Then he conducts his investigation. There are different procedures involved in the investigation. But in most cases, these professionals use all their tools and knowledge (and even scan other related documents), to determine whether or not there is a discrepancy in the recording. Using advanced instruments, they can examine the consistency of the voice, the background noise, the presence of gaps, and other suspicious breaks in the recording. After thorough investigation, these professionals can tell whether the tapes are fake, tapped, or doctored.

In court, a recording expert can act as an expert witness by presenting his findings to assist in the decision. He prepares the required documents, and if needed, he takes the stand to give his expert opinion. Whatever he says can influence the outcome of a trial, so he has to be careful in whatever information he presents. He is expected to come up with a concrete, strong and unbiased decision and testimony that he can easily present and defend in a trial. He may also be questioned by cross-examining lawyers, so he has to be prepared before he takes the stand.