Produce the Note: How to Save Your Home From Foreclosure
What is "produce the note"? Why is everyone talking about it? Does it apply to me? How can it help to save my home from foreclosure? All these questions will be addressed in this article.
What It Is: Produce the note is a defensive strategy that you can use to fight foreclosure and force the bank to prove that you owe it any money at all. In courts of law, the plaintiff has a "burden of proof", meaning that it has to put forth evidence that shows everything it says is actually true. However, when the plaintiff makes claims that the defendant does not challenge, then the court usually accepts the Plaintiff's claims on face value on the basis that you had a chance to contradict them and didn't.
When you say "produce the note" what you are doing is challenging the bank's assertion that you owe it money, that it has a mortgage on your house, and that it has the right to foreclose on you at all. One attorney has estimated that nearly 50% of mortgages have been lost or destroyed in the carnage of all the selling, pooling, servicing, tranching, and defrauding that went on in the years from 2001-2008 in the American Secondary Mortgage Market. 50-50 is pretty good odds of YOUR note coming up missing.
When Its Used:
Generally, during the discovery phase of litigation is the best time to employ "Produce the Note". That is, after you have sued the bank (say, for Quiet Title), or the bank has sued you (i.e., foreclosure). Discovery is the process by which each side of a pending lawsuit gets to ask the other side for all of the pertinent information with which it intends to prove its claims. For example, if you sue the bank for Quiet Title, then both parties have a right to request all the evidence in the other party's possession. The most basic piece of evidence here would be a "Note", which is the financial term for "mortgage" or other debt. Without a mortgage, then there is no document proving that you and the bank have an agreement, and therefore, the bank cannot prove its foreclosure claim against you.
Some proponents of "Produce the Note" suggest that ANYTIME is a good time for "Produce the Note" - even if there is no lawsuit going on. In some cases it may work, but the problem here is that there is no right to discovery outside of litigation. therefore, if you are not in foreclosure and you want to get the bank to have to produce the note, then find an attorney to evaluate your case for a quiet title case against whichever entity has a mortgage recorded against your home. Chances are, if the mortgage was sold more than once, SOMEONE forgot to make all the proper recordations, and you may just end up with your home free from any outstanding liens.
Third, an alternative used in bankruptcy, is to file Chapter 13 and list the bank note - NOT AS SECURED DEBT - but as UNSECURED DEBT. Similar to the discovery tactics above, this puts the bank of having to PROVE its mortgage in order to get the bankruptcy court to treat the debt as secured rather than unsecured debt.
How To Do It Right:
As hinted at above, if you want to get the most out of Produce the Note, you will wait until your guns are fully loaded: i.e., you are a party to an ongoing case, with a due process right to discovery. Send a "Request for Production of Documents" to the lender or servicer and demand examination of the original mortgage note at a place of your choosing. If the bank hasn't complied within 30 days, file a Motion to Compel Discovery. In your motion, refer the court to your proper Request for Production of Documents and to the bank's responses. Point out the bank's failure to comply with your request for it to produce the mortgage which it claims gives it a right to record a claim against your title, and ask the judge to compel discovery. If the bank has lost the note, then it will further fail to comply. At that point, file a motion to dismiss the bank's foreclosure action or at the very least to bar any evidence of a mortgage note as penalty for failure to comply with the court's order. It will be impossible for the bank to win. In the alternative, in a quiet title action, if the bank cannot comply, then you will be primed to win.
Word to the Wise: DO NOT rely solely on "Produce the Note." There are MANY possible claims and defenses that may come up in each case, and if you put all your eggs in one basket, you may get a rude awakening if your bank actually HAS your note. See an attorney, know your rights, and have a back-up plan.
The above article is not intended as legal advice, and is for informational use and entertainment only. If you are in need of legal advice or counsel, consult a licensed attorney in your jurisdiction who is competent in the area you need.
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Drink Driving in Scotland: is There a Legal Defence?
Prosecutions under s.5(1)(a) and (b) of the Road Traffic Act 1988 are complicated and it would be impossible to detail all the possible angles and defences that may require to be investigated. This article will attempt to highlight some of the more common issues that should be addressed if you are facing a charge of drink driving in Scotland.
Under s.5(1)(a) it is an offence if a person drives or attempts to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit. The “prescribed limit” is defined by s.11(2) as 35ug of alcohol in 100ml of breath, 80mg of alcohol in 100ml of blood or 107mg of alcohol in 100ml of urine.
The first issue I would like to point out is that the Crown will not initiate proceedings on the basis of breath-alcohol readings of less than 40ug. Although technically the police are entitled to proceed, the Crown are personally prosecuting the case by virtue of an agreement between the Crown Agent and the Law Society of Scotland. Rather unfairly in my view, there is no similar agreement for specimens of blood or urine. So if you are charged with drink driving in Scotland with a blood-alcohol reading of 81mg, then you better get some good advice from a road traffic expert because the Crown, in all probability, be will initiate proceedings.
The Intoximeter EC/IR is the main device used in Scots law for the analysis of breath samples. It has full type approval under section 7(1)(a) and is recognised as such as a matter of judicial knowledge. It very rarely, however, produces identical readings which will be of a concern to the person accused of drink driving.
Type approval dictates that if the variation between the two samples of breath vary in excess of 15% then the readings are inadmissible and some other procedure will presumably be invoked. Furthermore if an accused’s reading is less than 50ug/100ml or less then s.8(2)ug then the police will require to explain that the person may claim that specimen should be replaced by either blood or urine. This provision takes into account the variations that can be produced by the Intoximeter EC/IR and again will no give the public a great deal of confidence in the prosecution of drink driving cases in Scotland.
My advice is that an alternative sample should always be provided. There are a number of technical reasons for this although, to put it very simply, an accused person has nothing to lose at this stage by doing so. Interestingly, it has been suggested to me by clients I have defended that the police have tried to dissuade them from the alternative sample route. Please be aware that where improper pressure is exerted on an accused not to exercise his option to provide a specimen for laboratory analysis then this will result in an acquittal. Again the services of an expert motoring lawyer are essential in these circumstances.
I would also advise that the independent analysis of samples is undertaken. There are strict time limits that apply due to the degradation principle and, again, advice should be sought at the earliest opportunity. Clearly a degree of expense will be incurred by instructing an independent analysis although it could be the best money you have ever spent.
It is also essential to look at the constituent elements of the charge: namely the concepts of driving/in charge and public place/road. There is a vast amount of legal authority on these subjects and these lines of defence should be investigated.
There is also the defence of “post-incident” drinking. This is loosely referred to as the “hip-flask” defence and means that the alcohol that has lead the prescribed limit to be exceeded was consumed after the act of driving. This is a statutory defence and will require to be properly stated in Court with a toxicology report detailing an expert’s view on the expected alcohol reading at the time of driving. These cases can be complicated and detailed instruction from the client is essential.
These are the very basics and I hope I have given at least a starting point to those who are facing charges of drink driving in Scotland. Expert advice should be sought on this highly technical and specialised area of law. Even in cases where you may think there is no hope, there can be unexpected technical defences and it is imperative that the case is properly examined to ensure a plea of guilty is not tendered to a charge that will never prove.
Michael Lyon is a specialist motoring lawyer based in Glasgow. The Firm undertakes the defence of all types of Road Traffic Cases in Scotland. Expert representation provided in all Courts including Glasgow, Perth, Dumfries, Selkirk, Stonehaven, Aberdeen, Kilmarnock and Paisley.
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The ‘civil’ Traffic Ticket – “it Ain’t No Crime” …at Least That’s What the State Claims!
"For sixty years the U.S. Supreme Court avoided trekking through the constitutional minefield accumulated around the long standing practice of police stopping and temporarily seizing people at ‘civil’ traffic stops."
It’s a nice day and you are traveling down the road in your automobile listening to one of your favorite tunes playing on your car stereo when, a frenzied display of psychotropic red and blue pulsating lights appear suddenly in your rearview mirror. It’s a traffic cop! Like a warring bird of prey, he has swooped down upon you at lightning speed from out of nowhere and now he has you hopelessly locked firmly in his clutches.
Millions of Americans each year, traveling upon our nation’s highways and streets, share in a similar unpleasant experience of getting a traffic ticket. In most states, minor traffic offenses are legally classified as infractions. Infractions are considered legally to be ‘petty offenses’ of the law and not a crime. The commission of an infraction is classified as a non-criminal act and, therefore, the infraction is a ‘civil’ breach of the law.
There is little civil about the experience of being chased down like a common criminal by an armed police officer and handed a civil traffic ticket. Most people find the experience to be very unnerving, if not downright frightening. The civil traffic stop is made infinitely more tyrannous in light of the fact that the victim of the cop’s assault committed no crime.
The Fourth Amendment was designed to protect us against unreasonable search and seizures, requiring police to first have probable cause. Although probable cause was not defined by the Fourth Amendment, the Supreme Court has long held that probable cause must include a criminal act to warrant seizure, or arrest. In Terry v. Ohio, 392 U.S. 1 (1968) the U.S. Supreme Court held that police may briefly detain a person if they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.
Being that the Supreme Court’s litmus test for probable cause has historically required the element of a crime to be associate with reasonable cause for a seizure, how then is it possible that a traffic stop (seizure) for a non criminal civil infraction not to be a violation of the Fourth Amendment?
In 1967, the Supreme Court cracked open the door to provide legal sanction to what police officers were already doing around the country in violating the Fourth Amendment (performing traffic stop seizures for non-criminal civil infractions). In Delaware v. Prouse, 440, U.S. 648 (1967) the Supreme Court ruled, “The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.” [writer emphases added]
For over sixty years the U.S. Supreme Court avoided trekking through the constitutional minefield accumulated around the long standing practice of police stopping and temporarily seizing people at ‘civil’ traffic stops. Civil traffic stops (seizures) were unquestionably at odds with people’s Fourth Amendment protection against unreasonable seizures. The Supreme Court’s refusal to take the lead on the constitutional issue of the civil traffic stop left the state courts twisting in the wind of tyrannous constitutional construction and clamoring for a clear constitutional path they could take to safely traverse around the Fourth Amendment roadblock regarding the civil traffic stop and seizure.
The state courts have long and desperately sought the U.S. Supreme Court’s assistance in constitutionally ‘legitimizing’ (tweaking the Constitution) the six decade practice by police officers of seizing people for civil traffic offenses. The state courts had no way of neatly disposing of the highly problematic constitutional requirement that the U.S. Supreme Court had saddled them with. The U.S. Supreme Court had ruled that probable cause for a temporary seizure required a crime and the civil traffic stop was not a crime.
In 1996 the U.S. Supreme Court in the case of Whren v. United States, 517 U.S. 806 addressed head on the question of whether or not the civil traffic stop (seizure) violates a person’s Fourth Amendment rights. Acquiescing to the state courts’ demands, the Court provided the state courts with exactly what they had long sought, ruling; “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” [writer emphases added]
Politicians are well known for their talent to spin things. ‘Spinning’ is the ability to make things appear to be something that they are not. However, this talent is not limited only to politicians. Supreme Court justices are also very practiced in the art of spinning. Justices of the Supreme Court are lawyers, and lawyers practice a form of spinning known as ‘legal word art’. This form of spinning is created by transforming common words into technical legal jargon with hidden meanings.
The Supreme Court in the Whren case applied a hefty dose of good ol’ spin doctoring, as the politicians like to say, to make it appear as if the civil traffic stop was not an assault on our Fourth Amendment protection against unreasonable seizure. The Court in Whren capitalized on the use of one tiny, common, ordinary word - a word everyone uses and believes that they know the meaning of – ‘traffic.’
Traffic; the flow of vehicles and pedestrians along public right of ways. True? Yes, quite true when the word traffic is used in its ordinary sense, but not true when the word traffic is used in its legal sense. The word traffic used in its legal sense means an activity involving commerce — transportation of goods and people for profit as revealed in the following definition for the word ‘commerce’ under U.S. Code, Title 42, 21, VI, § 2000e (g). The term “commerce” means trade, traffic, commerce, transportation, transmission…” [writer emphases added]
A little more than a century ago, America had less tyrannous courts. The following 1898 Illinois Supreme Court ruling regarding the licensing of motorized methods of private transport of people not engaged in traffic is great proof of how at least one state supreme court followed the Constitution back then.
“The license is designed to operate upon those who hold themselves out as common carriers, and a license may be exacted from such as a proper exercise of police power; but no reason exists why it should be applied to the owners of private vehicles, used for their individual use exclusively, in their own business, or for their own pleasure, as a means of locomotion.” City of Chicago v. Collins et al., Supreme Court of Illinois. 175 Ill. 445, 51 N.E. 907 (Oct. 24, 1898).
The Illinois Supreme Court in 1898 held firm to the constitutional fact that the states have the power to regulate, license, and tax only those persons engaged in the activity of commerce related to the transport of people and goods upon the public right of ways.
Technically, the Supreme Court did not assail our Fourth Amendment protection against unreasonable seizure. Stopping and temporarily seizing a person engaged in traffic (an activity in commerce) does not per se violate their constitutional rights under the Fourth Amendment. The constitution grants states the right to regulate profit making activities in commerce upon the public right of ways.
In a realest or truest sense, the Supreme Court walloped our Fourth Amendment rights smack between the eyes with Whren (which was the Court’s intention from the get go). The states had long been pressuring the Supreme Court for a ruling such as this. They desperately needed to justify sixty plus years of doing what is not justifiable – their long practice of seizing people not in engaged in commerce at so called civil traffic stops.
Had Whren raised the issue about his not being engaged in commerce and a regulated activity, at the time of his trial, then in all likelihood the Supreme Court would have passed on hearing his case. The Court would have just waited patiently for another case to come along possessing the elements necessary to rule in the same manner as the Court had done in the Whren case.
Traffic boils down to money, power, and control. Traffic tickets are a multi-billion dollar bonanza for state and local governments. Profit making activities allows the government to regulate, license, and tax people under the constitution. The state traps people into traffic in much the same manner as it does regarding the Income Tax – the government just pretends that we all are engaged in a profit making activity.
The Supreme Court acted on the pretense that Whren was engaged in a profit making activity upon the public right of way and therefore, the state had the power to regulate his activity (driving or being in commerce). The police have the right to regulate traffic and, therefore, can constitutionally temporarily seize a person engaged in commerce to issue them a traffic ticket for a civil breach of the state’s driver’s license compact.
The state’s so called driver’s license compact is written for those engaged in commerce. However this fact is cleverly disguised and hidden from people by the lawyers who write the laws using the “spin doctoring” or ‘legal word art.’
Your possessing a driver’s license is not proof or evidence that you are engaged in traffic. You can have a driver’s license and your car can be registered and this does not prevent you from lawfully traveling in your private constitutionally unregulated capacity upon the public right of ways. It’s the activity of engaging in commerce that grants the states the right to regulate traffic and nothing in the Constitution grants the states the right to regulate the people’s right to travel. The right to travel is not and cannot be made a regulated activity. Therefore, the temporary seizure by a police officer at the time of a traffic stop is unquestionably unconstitutional.
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Lemon Law
Lemon laws are made by United States state laws to help car consumers whose cars repeatedly fail to meet certain standards of quality and performance. The position of such cars is called lemons. The Magnuson-Moss Warranty Act or federal lemon law protects every one of all states and they vary by state. Lemon law may not cover used or leased cars. The Lemon law rights managed to consumers may go beyond the warranties expressed in purchase contracts. Lemon law is just a common nickname for these laws buy every state have their own different names for such laws and acts.
In California, anything mechanical is covered by lemon laws as well as the federal lemon laws. The federal lemon law provides that the warranter may be obligated to pay attorney fees if he is involved in a lemon law suit.
Used car purchases:
If anyone purchased a used car then there are two situations where he is qualified for cash or other lemon law benefits:
Situation #1: One may be entitled to compensation for breach of warranty if he had one of the following Warranties:
a) Any warranty left from the manufacturer when you purchased your vehicle (for example, almost all vehicles sold with less than 36,000 miles will have this. But if the warranty is longer, you may have even more time).
b) The vehicle was "Certified" by the Manufacturer (in which case it came with a short Manufacturer's Warranty, typically 1 year).
c) He purchased an Extended Warranty backed by the Manufacturer (typically 5 years or longer).
Normally, these types of cases fall outside the scope of the state lemon law but are covered under special federal lemon laws.
Situation #2: When No Manufacturer's Warranty Exists. If he does not have a manufacturer's warranty of any kind he may be entitled to compensation for violations of consumer protection laws that fall outside of the lemon laws. The following is a list of some of the problems and/or issues which may be present in your vehicle. Your vehicle may be/have a:
Laundered Lemon;
Previously salvaged or wrecked;
Fraudulently rolled back odometer;
Rental car, police car, taxi, etc.;
Stolen, stripped and rebuilt; and/or
Involved in a flood.
Since Lemon Laws vary from state to state so accurate information on the scope and restrictions of Lemon Laws in a particular state can be obtained from an attorney practicing in that state.
"As is" purchases:
If a person knowingly purchase a car in "as is" condition then he accepts the defects and void his rights under the lemon law.
Other lemon laws:
Lemon laws are not limited to cars. There are RV lemon laws, boat lemon laws, motorcycle, wheelchair and computer lemon laws.
If you have a defective Motorcycle, Motor Home, used car, leased car, or a car used for business purposes and your State Lemon Law does not cover these vehicles, you still have other recourses such as the Uniform Commercial Code and the Federal Magnuson-Moss Warranty Act (providing you were given a written warranty).
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How to Defend and Win a DUI Case
Most likely you are reading this because you got charged for a DUI. Although you were caught drinking and driving, there are still ways to either reduce the charges that you will possibly face or have them dropped completely.
This article will be focusing on people who received a DUI and blew a BAC, or Blood Alcohol Content, around .08%. For a lot of states like California and Arizona, the legal blood alcohol content to drive is .08%.
I have seen a person in court that got a DUI and their BAC was only .09%, and instead of fighting it, he willingly took the charges and plead guilty. He did not have an attorney represent him, which is not smart. At the least, he should have received a public defender to counsel him on what could happen if he does plead guilty. They not only have a DUI on their record now, but they lost their license, had to pay fines to the court, and now have to attend a DUI program which is 9 months worth of classes.
One way that he could have avoided his penalties is to first hire a specialized DUI attorney. If you do not have the money resources to do this, and you got to be honest with yourself, then get a public defender. I say this because you will be paying atleast $2,000 in court fees and DUI program fees once your case is settled. Not only that, but you will have the DUI on your record, and you will not be able to get a job that requires a clean DMV record. So like I say, try to get an attorney to represent you, especially if your BAC was close to the legal limit. One fact is that you could be driving and have alcohol in your stomach, and at the instant you are pulled over, your BAC is below the legal limit. Well, if the officer takes half an hour or more to give you a BAC test, it is possible that you are now over the legal limit. This is one way to fight a DUI, because technically you were driving legally, and during the time that the officer was interogating and giving you a field test, your BAC could have risen over the legal limit.
There are a lot of ways to defeat charges against a DUI, and it is best to consult with a specialized DUI attorney before going into court.
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Can Legal Forms and Policies Help Make Your Business Legally Compliant?
Under UK law, numerous employee rights and entitlements exist which are fundamental to the relationship of employer and employee but do not form a detailed part of the employment contract. Often, the law implies certain rights into the employment contract or in the course of dealings between the parties.
To avoid legal disputes, it is very important for an employer to reduce such rights and procedures into policy documents in writing. This will provide clarity and certainty to employers and employees alike. The following legal forms detailing such procedures can be purchased online, which will help ensure that your business is legally compliant and will save you time and money:
1. Disciplinary Policy: This legal form details the procedures for disciplining employees in the event of employee wrongdoing or where a breach of company policy occurs. In disciplining employees, including the imposition of sanctions such as oral or written warnings, it is important for the employer to adopt fair procedures. To suspend or dismiss an employee, the employee should be given an opportunity to set forth his side of case. The disciplinary policy will detail the steps to be followed and the stated instances of misbehaviour to which the policy applies.
2. Grievance Policy: This is a legal form which states the procedural remedies an employee can seek where he is aggrieved by a decision of the company or by the actions of his fellow employee. It deals with grievances which are capable of being resolved internally and will set the framework within which an employee can complain. The legal form will also specify the format of meetings and investigations the company will adopt in deciding the validity of such claims.
3. Health & Safety Policy: Under UK law, an employer is obliged to detail the procedures to be adopted in the workplace relating to the health and welfare of employees. This legal form details the steps the company will take ensure in so far as is reasonably practicable the safety, health and welfare of employees and others who may be affected while engaged in their work. The legal form outlines inter alia the company policy in the area of handling hazardous materials, fire and first aid procedures and will name the company officers and staff who will implement this policy.
4. Paternity Policy: This legal form details how a male employee can apply for statutory leave on the birth of his child. The policy contains details on eligibility for leave, how application is to be made and the notice period required by the employer. The legal form will specify the employee’s rights during leave and his entitlement to return to work following leave on the same employment terms.
5. Maternity Policy: This is a very important legal form for employers to have, which can be utilised where leave is claimed. The policy will outline employer/employee rights to notification, ordinary maternity leave, circumstances of additional leave, the right of the employee to be kept informed of company developments and the return of the employee to work. The law relating to maternity entitlement is complex and ever changing, so it is in both the employer’s and employee’s interest to have a clear legal form which details rights and procedures.
6. Parental Leave Policy: Parental leave is a statutory entitlement allowing for additional leave which can be invoked by an employee who becomes a parent. This legal form outlines the rights and entitlement to apply for such leave and how the employer must apply due consideration to such requests. It also specifies situations where leave in the manner and form claimed can be refused.
7. Flexitime Policy: Employers have a legal duty to consider the requests of employees to have flexibility in their working terms and conditions. This legal form details how an employee goes about requesting such flexibility and the circumstances where an employer will decide to agree or decline flexibility in the hours or location worked.
8. Alcohol Policy: An employer may enforce rules regarding the consumption of alcohol or intoxicants by employees in the workplace or during work time. This legal form outlines the situations where such consumption will amount to a breach of company policy with the consequences of disciplinary sanction.
9. Smoke Free Policy: Under recent UK law, smoking in the workplace has been outlawed. This legal form will specify the situations and places where smoking is restricted and the steps an employer is requested to take to ensure the workplace is a smoke free environment.
Legal forms and policies will assist an employer in his quest to make his business legally compliant. Legal forms are inexpensive, provide clarity to a wide variety of employment situations and will help avoid unpleasant, costly and damaging employ
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How Dui in Pennsylvania Affects You?
Do not be fooled:
Law Enforcement Officers, Prosecutors and Judges are not looking out for your best interests when you are charged with Driving Under the Influence (DUI). These people are under tremendous pressure from their superiors to make more arrests, get more convictions and hand out stiffer sentences. An offense that may have been overlooked a few years ago may be zealously prosecuted in today's world. Any time you, a friend or a loved one is charged with DUI, you must take it very seriously!
When you are charged with DUI, or convicted, you are at risk for any or even all of these outcomes:
1. Jail time
2. Criminal record
3. Loss of driver’s license
4. Possible loss of your job
5. Large fines
6. Increased insurance rates
7. Required dependency treatment
8. Points against your drivers license
9. Drivers license surcharges
10. Other punishments that result from a DUI charge or conviction
Pennsylvania DUI Penalties
Implied Consent Laws: Laws demand drivers assumed of driving under the influence to concede to breath, blood, or urine testing for alcohol content are known as "implied consent laws." Rebuttal carries penalties that can include mandatory suspension of a driving license for up to a year.
Blood-Alcohol Concentration: In Pennsylvania, any driver with a blood-alcohol absorption - or BAC - above .08 percent is measured “per se intoxicated” under the law. Under this statute, this evidence is all that is required for a driver to be convicted of Driving Under the Influence (DUI) or Driving While Intoxicated (DWI).
Zero Tolerance Blood-Alcohol Concentration: In all states, “zero tolerance laws” focal point on drivers not of legal drinking age. In Pennsylvania, persons under the age of 21 operating a car with a .02 percent blood-alcohol level or higher than are subject to DUI penalties.
Enhanced Penalty Blood-Alcohol Concentration: In some states there is a more severe punishment for those convicted of DUI with a for the most part high blood-alcohol content at the point in time of arrest; this is commonly .15 to .20 percent above the legal limit. Enhanced penalty laws are not utilized in Pennsylvania.
Administrative License Suspension/Revocation Penalties: These penalties are minimum mandatory penalties obligatory on drivers with a blood-alcohol concentration above Pennsylvania’s maximum tolerable level of .08 percent or drivers subject to the implied consent laws (see above) for refusing to submit to breath, blood, or urine testing for blood-alcohol content. Penalties involve suspension or revocation (meaning transitory or permanent removal) of the driver’s license by the DMV (Department of Motor Vehicles). In Pennsylvania, for the foremost DUI offense the mandatory suspension is 90 days; for the second offense, one year; for the third offense, three years.
Vehicle Confiscation: The penalty of vehicle confiscation for DUI conviction – either everlastingly or temporarily - is a risk in some states, typically for repeat offenders. This is not a penalty option in Pennsylvania.
Ignition Interlock: An ignition interlock device attaches to the condemned DUI offender’s motor vehicle and requires the driver to complete a breath-test before the vehicle will start. While this penalty for DUI conviction is a option in some states, this is not an option in Pennsylvania.
Mandatory Alcohol Education and Assessment/Treatment: Alcohol tutoring and prevention program, treatment for alcohol abuse, and judgment of a person for possible alcohol or drug craving can be required for DUI offenders in Pennsylvania. These steps are often recommended instead of serving a sentence of incarceration or paying fines.
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What is Lemon Law?
The definition of Lemon Law is when a car that gives you grave problems right after you buy it. The defect must be extensive and must occur within a certain time or mileage period, usually 12,000 miles or one year. Usually People get the option of getting a refund or a replacement vehicle for a lemon, but they might have to go to arbitration or court to exercise this option.
Lemon Law refers to the statement from the government which is created to protect clients or customers from defects in automobile, discount rims, etc. An automobile that has manufacturing defect(s) or requires constant repairs after purchase and if the automobile is under the period of warranty, then the vehicle is termed as a lemon.
If any vehicle such as a car is under warranty period and is suffering from a range of faults that prevent a user to use the vehicle effectively then Lemon law act or the Magnuson Moss Act comes into force.
Lemon law can be enforced on any vehicle be it car, truck, van, SUV, motorcycle, boat or computer, etc. If any of these consumer durables is found to be defective then the consumer is entitled for either money back, replacement or a cash settlement. The law can be consulted with a Lemon law attorney as various states have different lemon laws. Some states have a lemon law for only the automobiles but some also include other consumer durables.
A dealer or manufacturer should have made number of attempts to repair the vehicle before being declared as lemon. Usually three or more attempts in row over a short period of time are required for any vehicle to be termed as lemon. Lemon law is also valid to vehicles that have been resold and are still under warranty.
To make certain whether a vehicle is a lemon or not one should study certain conditions of the vehicle before pursuing a lemon law suit. A vehicle should exhibit some serious defect or some abnormal condition. Number of attempts for repair should also be taken into account before preparing a lemon law suit. A written notice should also be issued to the manufacturer prior to a lemon law suit.
A vehicle that has been bought back by the manufacturer from the customer is known as a Lemon Buy Back. They are then often sold in auctions as used cars by the manufacturers.
The Lemon law enforced for protecting consumers from the lemon vehicles is Magnuson-Moss Warranty Act. This lemon law states that any advertised guarantee should explicitly state relevant information about a warranty. This law ensures that any warranty for goods above $15 should be clearly expressed on the goods and should be clear and easy to understand. The Magnuson-Moss Warranty act enables a consumer to bring suit to any manufacturer, supplier, warrantor, or service contractor for any defective piece of good or services.
Plaintiff’s Personal Injury Attorneys are Agonizing Over the New Medicare Reimbursement
This new law will pose new challenges for plaintiff's attorney, the insurance carrier for the defendant and the mediator who is attempting to resolve the claim. If the attorney or insurance carrier does not comply, they risk being sued by the Government for reimbursement up to five years post-closure and monetary fines.
What is the new law?
On December 29, 2007, President George Bush signed into law the "Medicare Medical, and SCHIP Extension Act of 2007." The new legislation amends the Medicare Secondary Payer Act (MSA) by establishing new reporting guidelines beginning July 1, 2009. Under the new rules, all liability insurers, and self-insurers will be required to determine whether any individual who files a claim against the insurer or any entity insured or covered by the insurer is entitled to Medicare benefits. If so, the insurer must provide Medicare with that individual's identity and any other information that maybe required under the law. This information must be furnished to Medicare within the time specified by after the claim is resolved through settlement, judgment, award or other payment (regardless whether or not there has been an admission or determination of liability). If an insurer fails to notify Medicare in accordance with these guidelines, a civil penalty of $1,000 per day will be charged per claimant. The new legislation clearly indicates a shift in policy which will result in the federal government monitoring general liability claims more closely. The fines represent a new enforcement push by Medicare to hold attorneys and insurers liable.
What does it mean for Plaintiff's Attorney?
Plaintiff's attorney will begin to take a closer look at the case he or she accepts. The attorney should change the client intake form to ask very comprehensive health related questions, whether the client is entitled to Medicare, how long has he been on Medicare, which type of Medicare and whether the claimant has used Medicare to obtain treatment for his/her injuries. The client should be advised in detail about the new Medicare Recovery Act and that Medicare is looking for 100% reimbursement, not taking into account if there is any comparative negligence. The client should be told there is no hiding from Medicare because it will be notified upon a settlement or judgment and the lien may take months if not years to resolve.
Think twice before accepting a small personal injury case involving Medicare recipients where liability is disputed. A settlement amount will have to cover Medicare charges up to 100%, attorney fees and provide money for the plaintiff. If that type of recovery does not seem likely consider rejecting the case.
However, Baby Boomers are increasing and may be a good part of an attorney's personal injury practice. It is estimated that in the next couple of years, approximately 25% of the Country's population will consist of baby boomers who are Medicare recipients. If the claimant has undergone limited treatment using Medicare and needs additional treatment, consider advising the healthcare provider to bill plaintiff directly or consider finding a doctor who will take the treatment on a lien. This way a Medicare lien will be avoided or at least a very minimal lien incurred. If liability is undisputed, have the medical billing company bill the insurance carrier directly.
What if the attorney has a case where Medicare has a substantial lien? If it is before July 1, 2009, consider settling the claim before that time. If you cannot, again advise the client of the new Medicare Recovery Act and the reporting requirements.
If there is a settlement and Medicare does not know about it and mistakenly pays for services it has a right to recover, it can go after the attorneys whose fees are paid out of the settlement. Also the Medicare recipient can lose his or her benefits. Lawyers could be exposed to malpractice claims for not handling a client's benefits properly. Insurers can be liable for monetary fines for failure to report. If a plaintiff loses his Medicare benefits, the plaintiff may bring a legal malpractice claim against the attorney and a bad faith claim against the insurer for not making sure Medicare benefits were protected.
After July 1, 2009, makes sure the claim is settled for an amount that will cover the Medicare lien. It may be possible to comp the lien, but do not count on it. In making settlement demands, assume that you will pay Medicare 100% reimbursement in what is paid out. Make sure all charges refer to the injuries that your client sustained. Medicare will not be speedy to resolve these claims, so discuss with the client about holding the amount in a trust account until the CMS lien is resolved rather than disbursing the entire amount owed to plaintiff.
It is unknown whether plaintiff's attorney will have to worry about set asides calculations for future medical care and submit them to Medicare for approval. Currently, there is no formal process of liability settlements for future medical care.
Finally, negotiations with the liability insurance carrier will become more difficult. They will demand information about your client, such as social security number, so that they can comply with the requirements and avoid fines. Also, even though Medicare may ignore the comparative negligence issues, Insurance adjusters will take the position that despite Medicare's 100% reimbursement, it will not pay 100% of the medical bills. An insurance carrier will not want to increase the cost of a claim and stand firm on its position.
This new law will pose challenges for the plaintiff's attorney who is attempting to resolve the claim. The key is to be aware of the Medicare Reimbursement Act, and to prepare the parties prior to a settlement of the barriers that the Medicare Recovery Act may present.
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