Statewide Traffic Tickets / Infractions Amnesty Program

If you are buried in traffic fines debt, you may qualify for The Statewide Traffic Tickets/Infraction Amnesty Program which will become effective tomorrow October 1st through March 31, 2017.

Under a bill passed by the Legislature, drivers will receive discounts of 50% to 80% on tickets that should have been paid before Jan. 1, 2013.

According to the Judicial Counsel, installment payment plans also will be offered. Californians who lost their driver’s licenses because they could not afford to pay the fines will be eligible to have them reinstated.

Those with parking tickets or convictions for reckless driving or driving under the influence and drivers ticketed in more recent years will not be eligible for the assistance.

There may be a court fee and a DMV fee to participate in this amnesty program.

For more information, please see the following link:  http://www.courts.ca.gov/partners/941.htm

If you have any questions, please give us a call.  (805) 330-1529

 

House Being Foreclosed ? Can I pay what I owe ?

In California there is a right to “Reinstate” defaulted real property loans.

The statutory right to reinstate defaulted real property loans is covered by Civil Code Section 2924c(a)(1).  In other words, you have a right to pay your lender only the past due amount along with reasonable costs and fees associated with enforcing the deed of trust.

Who has the right to reinstate the loan?

Under Civil Code Section 2924c(a)(1), the following parties have the right to reinstate a defaulted loan: The borrower, called the “trustor” (under a deed of trust) or the mortgagor (under a mortgage), or any successor in interest to the borrower; Either the lender or the borrower, under any junior deed of trust, mortgage or other lien against the property.  In other words, any one who has a financial interest in the property, which might be wiped out by a foreclosure, has the right to reinstate. This includes the owner of the property, the borrower under the loan or anyone with an interest in a junior deed of trust, mortgage or other lien in the property.

What is the deadline to reinstate a defaulted loan?

The right to reinstate the loan continues until five business days before the noticed date of the foreclosure sale. “Business days” means weekdays, other than holidays.  It does not include Saturdays, Sundays or bank holidays.  After this deadline passes, the lender does not have to accept reinstatement. During this time, the lender can go ahead with the foreclosure unless the entire amount of the loan is tendered. If the foreclosure does not occur on the first noticed sale date, and if a new sale date is noticed, then a new right of reinstatement comes into existence, which also continues until five days before the new noticed sale
date.

How much may the lender charge to reinstate the loan?

In order to reinstate the loan, the lender may demand payment of the following:

(1) All of the amounts, which are set out in the Notice of Default, which may include all amounts in default of principal, interest, taxes, assessments, insurance premiums or advances made by the lender to pay senior liens and other amounts needed to protect its lien.

(2) All “recurring obligations” which means all monthly payments under the loan, which come due after the Notice of Default, plus all amounts due under senior liens, all taxes and insurance payments advanced by the lender after the Notice of Default.
(3) All “reasonable costs and expenses actually incurred” by the lender in enforcing the mortgage or deed of trust. These “reasonable costs” are limited to: “the costs incurred for recording, mailing, including certified and express mail charges, publishing, and posting notices required by Sections 2924 to 2924i, inclusive, postponement pursuant to Section 2924g not to exceed fifty dollars ($50) per postponement and a fee for a trustee’s sale guarantee.” Civil Code Section 2924c)(c). The lender is also permitted to charge trustee fees or attorney fees, but these are limited by Civil Code Section 2924c(d).

The lender may NOT demand that whole principal of the outstanding loan (the loan balance) be paid.  In other words, the amount needed to reinstate must be calculated only the defaulted amounts, plus costs. It may not include the full, accelerated amount of the loan.

How can you find out how much is needed to reinstate the loan?

Under Civil Code Section 2943, lenders are required to provide information on how much is needed to reinstate loans. The borrower under the loan, his or her successor in interest, anyone with a financial interest in a junior lien against the property and escrow agents are all authorized by the statute to request, in writing, information from the lender.  Two types of information may be requested:
(1)  a beneficiary statement, which states how much must be paid to reinstate a defaulted loan;
(2)  a payoff demand statement, which states how much is needed to pay the loan in full. (The payoff demand statement is requested, when the property is being sold, the loan is being refinanced or the loan is otherwise going to be paid in full.)

The lender is required by law to respond to such a request within twenty-one (21) days of receiving it. Please note, however, that such a demand for information can only be made for two months after the Notice of Default is recorded. If the Notice of Sale has been recorded, then the lender need not respond to the request for information.

What is the procedure after a loan is reinstated?

If a loan is reinstated, the lender must, within twenty-one (21) days of the reinstatement issue a Notice of Recission of the declaration of default. Civil Code Section 2924c(a)(2). The trustee under the Deed of Trust record the Notice of Recission, within thirty (30) days of receiving it.
If you have any questions please contact us.

Injured in a store or in a business ?

As a general rule in California, an individual or an entity does not have a duty to come to the aid of of a person who is sick or injured.  However in California, there is a  “special relationship” doctrine which  may require a business to come to your aid if you are sick or injured on their premises.  Companies such as trucks, buses, taxicabs, and hotels all owe us a duty to take reasonable action to protect us from the risk of physical harm and to give first aid after they become aware we are sick or injured, until we can be cared for by others.   If you have become sick or injured in a store, the store has a common law duty of “reasonable care”.  What is “reasonable care”?  That is the million dollar question.   Recently the California Supreme Court in Verdugo v. Target (2014) 59 Cal.4th 312 stated that target was not required to provide and equip its stores with an AED  (Automatic external defibrillator) in case a patron had a heart attack.   The court reasoned that the burden placed upon target to provide this life saving device was to great in relationship to the potential risk of a person having a heart attack in a target store.  Business owners are going to try and use this case to limit their duty of “reasonable care” that they owe you.  If you have been injured in a business and you believe you were not provided “reasonable care” contact us and we will investigate to see if the business complied with the duty they owe you.

Haven’t Paid That Traffic Ticket ?

“Well over 4 million Californians have had their licenses revoked because they failed to pay traffic fines or appear in court, DMV records show.”

http://www.sacbee.com/news/local/transportation/article18635310.html

How can my child be charged in adult criminal court ?

Criminal charges against a child as young as 14 years old may be directly filed in adult criminal court thus bypassing the Juvenile Justice system altogether.

The District Attorney has the discretion to file charges in adult criminal court if the youth is 16 or 17 years old And the youth is alleged to have either committed an offense listed under Welfare & Institutions Code §707(b) (These offenses constitute a “Juvenile Strike”).  OR

If the youth has previously committed a felony offense when 14 years old or older AND is accused of committing a felony where the victim was at least 65 years old or disabled or a felony that is either a hate crime or gang related.

Additionally, the District Attorney has the discretion to file charges in adult criminal court if the youth is 14, 15, 16, or 17 years old and the alleged offense is:

  1. One for which an adult could receive a sentence of death or life imprisonment; OR
  2. The youth is accused of personally using a firearm while committing a felony; OR
  3. The offense is listed under Welfare & Institutions Code §707(b) AND one or more of the following is true:
  • The youth has previously been found to be a person described in Welfare & Institutions Code §602 by reason of the commission of a “Juvenile Strike” offense (W&I Code §707(b);
  • The offense is alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal street gang;
  • The offense was a hate crime
  • The alleged victim was 65 years of age or older, or disabled.

The District Attorney must file in adult criminal court when a child is alleged to have personally killed someone and special circumstances is alleged OR certain sex crimes are alleged.

If you have any questions regarding whether or not your child can be charged in adult criminal court, please call us directly at (805) 330-1529.

 

 

Sealing Your Juvenile Record – Update

Beginning in 2015 – New Law Authorizing Automatic Sealing of Juvenile Records

As discussed in our previous blog on Sealing Your Juvenile Records, existing law already allows for the sealing of non-violent juvenile records, but requires a petition to the court in order to initiate the process.  Beginning  on January 1, 2015, Senate Bill 1038 which is codified in Welfare & Institutions Code section 786 will provide automatic sealing of juvenile records in cases where the minor successfully completes all court-imposed sanctions.

Section 786 is added to the Welfare and Institutions Code, to read:

786.  If the minor satisfactorily completes (a) an informal program of supervision pursuant to Section 654.2, (b) probation under Section 725, or (c) a term of probation for any offense not listed in subdivision (b) of Section 707, the court shall order the petition dismissed, and the arrest upon which the judgment was deferred shall be deemed not to have occurred.  The court shall order all records pertaining to that dismissed petition in the custody of the juvenile court, except that the prosecuting attorney and the probation department of any county shall have access to these records after they are sealed for the limited purpose of determining whether the minor is eligible for deferred entry of judgment pursuant to Section 790.  The court may access a file that has been sealed pursuant to this section for the limited purpose of verifying the prior jurisdictional status of a ward who is petitioning the court to resume its jurisdiction pursuant to subdivision (e) of Section 388.  This access shall not be deemed an unsealing of the record and shall not require notice to any other entity.

Check out our latest blog on proposition 47

What Changes to Criminal Law And Procedure Did Proposition 47 Bring About?

California voters approved Proposition 47.  The changes enacted by this measure are effective as of November 5, 2014 (Cal Const. Art. 2, Sec. 10.)  Numerous drug and theft-related crimes that were previously felonies or “wobblers” are now misdemeanors, unless committed by “Prop 47 Ineligible” criminals – namely, 290(c) registrants, and those with a prior for the very serious crimes listed in Penal Code §667(e)(2)(c)(iv) – such as homicide offenses and crimes punishable by death or by life in prison.

In addition to these reductions, Prop 47 also enacted new Penal Code §1170.18, which sets forth procedures for those previously convicted and sentenced for a felony that is now a misdemeanor under this proposition to petition for resentencing under the misdemeanor  provisions.  Unless a court determines that the person poses an “unreasonable risk” of committing one of the crimes listed in Penal Code §667(e)(2)(c)(iv), the petitioner will get resentenced, and his/her conviction will be deemed a misdemeanor for all purposes, except possessing firearms.

Except as to “Prop 47 Ineligible” individuals, the following are now misdemeanors:

Theft Related Crimes:

PC §459.5 – The new misdemeanor crime of “shoplifting” is entering a commercial establishment, during business hours, with the intent to steal, where the value does not exceed $950.  “Shoplifting” as defined may not be charged as theft or burglary.

PC §473(b) – Forgery of checks and related instruments of not more than $950.

PC §476a – Non Sufficient Fund (NSF) checks totaling not more than $950 (unless 3 or more specified priors).

PC §490.2 – Grand theft (any form) not more than $950.

PC §496(a) – Receiving/Concealing stolen property not more than $950.

PC §666 – “Wobbler” “petty theft with a prior” applies only to “Prop 47 Ineligible” defendants with specified priors, and certain elder abusers.  For all other defendants, petty thefts are misdemeanors, regardless of the number of priors.

Except as to “Prop 47 Ineligible” individuals, the following are now misdemeanors:

Drug Related Crimes:

H&S §11350 – Simple possession of heroin, cocaine, and other listed controlled substances.

H&S § 11357(a) – Simple possession of concentrated cannabis.

H&S §11377 – Simple possession of methamphetamine, ecstasy, GHB, and other listed controlled substances.

 

If you have any questions or would like to petition the court for resentencing, please call us at (805) 330-1529.

Temporary Home Loan Modifications May be Binding

Are you on a Temporary Home Loan Modification ?  The California  Court of Appeals for the First District holds that a temporary loan modification may be binding on the lender and allows the case to go to trial on the issues of breach of contract and fraudulent misrepresentation.  What this means is a plaintiff who sues a lender for breach of contract and misrepresentation, for the lenders failure to make a temporary loan modification permanent where the plaintiff complied with the trial loan modification under HAMP, at least gets a chance to go in front of a jury.  This case joins a growing body of cases in California that support homeowners ability to at least have their cases heard before a jury. Rufini v. CitiMortage, Inc. 227 Cal.App4th 299

Prosecutor Misconduct During Trial

Does Your Criminal Case Get Dismissed When The Prosecution Deliberately Withholds Exculpatory Evidence ?

What happens when your defense team learns during trial that the Prosecutor deliberately withheld exculpatory evidence that they have a legal duty to disclose?  Under current law, the judge might grant a brief continuance to allow the defense to look into the evidence, can hold the prosecutor in contempt, and can also mention the lapse to the jury.

AB 885, which was cleared by both houses, would have changed the current law to require the judge to tell the jurors the evidence was intentionally withheld and that they can consider the non-disclosure as a possible sign that the prosecution was unable to prove its case.  This bill was introduced by Assemblyman Tom Ammiano, D-San Fransisco stating “We need this bill to stop the few prosecutors whose zeal for convictions lead them to cut corners of Justice.”

This Bill was vetoed by Gov. Jerry Brown stating “Prosecutorial misconduct should never be tolerated” But he said AB 855 “would be a sharp departure from the current practice… Under current law, judges have a array of remedies at their disposal if a discovery violation comes to light during trial.”

Breaking News In Criminal Law

Breaking news in Criminal Law

The Governor signs AB 2492, a bill that eliminates the 90 day mandatory minimum sentence on H&S 11550’s.
This bill goes into effect on January 1, 2015. The bill does provide that if a person has suffered two prior 11550 convictions in the previous 7 years, the person faces a 180 day minimum, unless that person enters and completes a drug rehab program.