Divorce & Lassie
Divorce is a difficult and troubling time for most. Divorce gets especially hard when a couple has to determine what to do with Fido, Zeus or Sebastian.  The pet industry is a multi-billion dollar industry. For many Americans without children, or for even those with children, the family pet is just that – FAMILY. Thus, what happens to your furry loved one in a divorce can have serious emotional impact for all involved.
The sometimes callous and impassionate legal system regards animals as chattels. A chattel is a tangible, movable, or immovable, item of property, except real estate or other things connected with reap property. In other words, a pet is a piece of property. That’s a pretty cold definition of a member of our family! NRS 193.021 states, “personal property includes dogs, domestic animals, and birds.”  Unfortunately, or fortunately, depending upon your point of view, in the eyes of the law, your pet is akin to a vase or a car. Under NRS 41.740, “a person can sue for damages should anything happen to his or her animal, not to exceed $5,000.”
According to NRS 123.130 and case law, all property acquired after marriage is presumed community property, which is to be divided equally.   This creates an interesting dilemma when it comes to deciding what to do with the family pet upon divorce.  Only the judge’s discretion determines the outcome unless the parties can come to a mutually agreed upon agreement.  In an ideal world, a divorcing couple should put aside their differences and do what is in the best interest of the pet.
Should a new law be promulgated to elevate Lassie’s status above a piece of property? Should we establish a ‘best interest of the pet’ standard?  Do we order pet support?  These questions may seem comical but in reality, thousands of dollars are spent by divorcees willing to pay large sums of money to care for Lassie.
 While this is still a growing and fluid area of the law, the Court has options that it can consider when handling this issue.  Factors such as, who purchased Lassie, who is the registered owner, bring Lassie into the courtroom and see who Lassie runs too or whoever gets the house, gets Lassie.  While these may not seem ideal ways to decide who gets Lassie, it’s all we have until the law catches up understanding our love for Lassie and Fido.
“GOD couldn’t be physically with us so he gave us dogs…& notice Dog spelled backward is GOD and they both show unconditional Love!”~author unknown
By Tanika Capers, Esq.
“THE CREDIT CARD ACT OF 2009-PART II’ 12 CONSUMER PROTECTIONS YOU NEED TO KNOW
Last month, we learned about the ‘Credit Card Accountability Responsibility and Disclosure Act of 2009’ promulgated by former President Barack Obama.   Let’s get to the nuts and bolts of what you need to know.
  
CARD Act highlights:
1. Limited interest rate hikes: Interest rate hikes on existing balances are allowed only under limited conditions, such as when a promotional rate ends, there is a variable rate or if the cardholder makes a late payment. Interest rates on new transactions can increase only after the first year. Significant changes in terms on accounts cannot occur without 45 days’ advance notice of the change.
2. The right to opt out: Consumers have the right to opt-out of — or reject — certain significant changes in terms on their accounts. Opting out means cardholders agree to close their accounts and pay off the balance under the old terms. They have at least five years to pay the balance.
3. Limited credit to young adults Credit card issuers are banned from issuing credit cards to anyone under 21 unless they have adult co-signers on the accounts or can show proof they have enough income to repay the card debt. Credit card companies must stay at least 1,000 feet from college campuses if they are offering free pizza or other gifts to entice students to apply for credit cards.
4. Clearer due dates, times: Issuers have to give card account holders “a reasonable amount of time” to pay on monthly bills. That means payments are due at least 21 days after they are mailed or delivered. Credit card issuers are no longer able to set early morning or other arbitrary deadlines for payments. Cutoff times set before 5 p.m. on the payment due dates are illegal. Payments due at those times or on weekends, holidays or when the card issuer is closed for business are not subject to late fees. Due dates must be the same each month.
5. Limits on over-limit fees: Consumers must “opt-in” to over-limit fees. Those who opt out will have their transactions rejected if they exceed their credit limits, thus avoiding over-limit fees. Fees cannot exceed the amount of overspending. For example, going $20 over the limit cannot have a fee of more than $20.
6. Minimum payments disclosure: Credit card issuers must disclose to cardholders the consequences of making only minimum payments each month, namely how long it would take to pay off the entire balance if users only made the minimum monthly payment. Issuers must also provide information on how much users must pay each month if they want to pay off their balances in 36 months, including the amount of interest.
7. Late fee restrictions: Late fees are capped at $25 for occasional late payments; however, the fees can be higher if cardholders are late more than once in a six-month period.
8. Gift cards expiration rules: Gift cards cannot expire sooner than five years after they are issued. Dormancy fees can only be charged if the card is unused for 12 months or more. Issuers can charge only one fee per month, but there is no limit on the amount of the fee.
“The most vulnerable consumers, those who carry a balance, have been protected by the protections of the CARD Act,” says Chi Chi Wu, staff attorney for the National Consumer Law Center, a Boston-based consumer advocacy group. “Some of the worst abuses were addressed, including retroactive rate increases. It put the brakes on some of the fees. They are still kind of high, but it kept them from going up.”
HAVE YOU HEARD OF ‘THE CREDIT CARD ACT OF 2009?’
On May 22, 2009, the Credit CARD Act of 2009 was signed into law by President Barack Obama. The full title of the law – Public Law 111-24 – is the Credit Card Accountability Responsibility and Disclosure Act of 2009. It amends the Truth In Lending Act, the Federal Trade Commission
Act and the Electronic Funds Transfer Act.  I know…that’s a lot of legalese.  I don’t personally use credit cards.  If I can’t pay cash for something, then I don’t need it.  I have lived without a credit card for over 10 years.  But I realize I am not the norm.  So if one is going to use a credit card…be EMPOWERED.
As the Consumer Financial Protection Bureau explains on the Consumerfinance.gov website, the law serves as a Bill of Rights

of sorts for credit card holders, prohibiting practices that are unfair or abusive, such as slapping fees for going over a limit or imposing a fee without warning. At its most basic level, the law seeks to make rates and fees on credit cards more transparent so consumers can see what they’re getting and make smarter financial decisions.

Credit card issuers must notify you of a rate increase – or any other significant change in terms to your credit card account – at least 45 days in advance. The Board aka Federal Reserve Board has developed rules that address what a “significant change” means.) This notice must be clear and conspicuous, and give you the opportunity to close the account. If you decide to close your account to avoid the new terms, issuers won’t be able to charge a penalty fee for closing your account, place you in default because you close your account while you still owe a balance, or require you to pay your balance in full immediately. If your card issuer does raise your rate (or says it will) and you close your account, your card issuer can require you to pay back your balance over five years or double your previous minimum monthly payment.
Issuers cannot increase the annual percentage rate, fee or finance charge on your existing credit card balance except in limited circumstances. Your rate can go up if the rate you were given was clearly disclosed as lasting for a certain period of time. For example, your card issuer could offer an introductory rate if you were told what the new rate would be after that period expired. Promotional rates must last for at least six months.
If you are 60 days late on a credit card payment, your issuer can raise your interest rate retroactively. However, you must be given the opportunity to earn back your previous rate if you make your minimum payments on time for six months.  Remember, an issuer cannot raise your rate on your credit card in the first year except in the circumstances above, such as with an introductory interest rate or if you fall 60 days or more behind.
If a credit card issuer increases your annual percentage rate based on factors such as your credit risk as a borrower or market conditions, the creditor shall consider changes in those factors when determining whether to reduce your annual percentage rate. Every six months (at minimum), issuers must review accounts on which they raised the interest rate since Jan. 1, 2009 to assess whether the facts they used to raise the interest rate have changed. If so, they must lower your rate.
Do I have your attention?  Stay tuned next month for more information on the ‘THE CREDIT CARD ACT OF 2009.’
Information provided by Tanika Capers, Esq.
‘How to Dispute a Credit Report’
Your credit report contains pertinent information about where you live, how you pay your bills, and whether you’ve been sued or arrested, or have filed for bankruptcy. Credit reporting companies sell the information in your report to creditors, insurers, employers, and other businesses that use it to evaluate your applications for credit, insurance, employment, or renting/buying a home. The federal Fair Credit Reporting Act (FCRA) promotes the accuracy and privacy of information in the files of the nation’s credit reporting companies.
Should you periodically review your credit report? ABSOLUTELY… BUT WHY YOU MAY ASK?
  • Because the information it contains affects whether you can get a loan – and how much you should pay to borrow money.
  • To make sure the information is accurate, complete, and up-to-date before you apply for a loan for a major purchase like a house or car, buy insurance, or apply for a job.
  • To help guard against identity theft. That’s when someone uses your personal information – like your name, your Social Security number, or your credit card number – to commit fraud. Identity thieves may use your information to open a new credit card account in your name. Then, when they don’t pay the bills, the delinquent account is reported on your credit report. Inaccurate information like that could affect your ability to get credit, insurance, or even a job.
How to Order Your Free Report
The FCRA requires each of the nationwide credit reporting companies – Equifax, Experian, and TransUnion – to provide you with a free copy of your credit report, at your request, once every 12 months.
The three nationwide credit reporting companies have set up one website, toll-free telephone number, and mailing address through which you can order your free annual report. To order, visit annualcreditreport.com, call 1-877-322-8228, or complete the Annual Credit Report Request Form and mail it to:
Annual Credit Report Request Service
P.O. Box 105281
Atlanta, GA 30348-5281

Do not contact the three nationwide credit reporting companies individually. You may order your reports from each of the three nationwide credit reporting companies at the same time, or you can order from only one or two. The FCRA allows you to order one free copy from each of the nationwide credit reporting companies every 12 months.
To maintain the security of your file, each nationwide credit reporting company may ask you for some information that only you would know, like the amount of your monthly mortgage payment. Each company may ask you for different information because the information each has in your file may come from different sources.
Other situations where you might be eligible for a free report
You’re also entitled to a free report if a company takes adverse action against you, such as denying your application for credit, insurance, or employment, based on information in your report. You must ask for your report within 60 days of receiving notice of the action. The notice will give you the name, address, and phone number of the credit reporting company.
You’re also entitled to one free report a year if you’re unemployed and plan to look for a job within 60 days; if you’re on welfare; or if your report is inaccurate because of fraud, including identity theft.
Otherwise, a credit reporting company may charge you a reasonable amount for another copy of your report within a 12-month period. To buy a copy of your report, contact the three credit report companies individually.

Stay tuned next month for how to ‘Correct Errors on your Credit Report.’

Tanika M. Capers, Esq.
DON’T TOUCH THAT PHONE!
Numerous times a day I see it…People driving and texting or driving and talking on their phone (while holding their phone).  If you are not aware, the Nevada Legislature passed a law that prohibits and/or limits a person from using a cell phone while driving. 
 
The law applies to a person operating a motor vehicle on a highway in the State of Nevada.  The term highway means any road, street, freeway, etc. that the public has access to.  Arguably, this could apply to driving in parking lots.  To be clear, the law prohibits the use of texting, searching the internet, reading email, instant messaging, etc. while operating a vehicle.  So technically even if you are stopped at a light you would be breaking the law if you were reading your emails or texting.  As such, there is no reading or typing while operating a vehicle.
The law does allow for a person to use a cellphone while operating a vehicle if they are using an accessory that allows the use of the phone to be hands-free.  Therefore, any Bluetooth device or earpiece will allow you to follow the law and talk.   The law specifically states that a person is allowed to use the phone “to activate, deactivate or initiate a feature or function on the device.”  You may ask what about holding the cell phone and using the speaker function while driving?   This would not meet the definition of hands-free and therefore would be illegal.  
Drivers who use their phones as a GPS are advised to program the location prior to taking the wheel and then never to touch the phone during the trip. Picking up the device or programming information into the device while driving is a crime in Nevada. Last, if playing music on a cell phone requires the phone to be in the driver’s hand at any time, then it is technically illegal. Nevada police have been advised to assume that any driver who is holding or touching a cell phone is violating NRS 484B.
The Statute requires the following fine schedule:
a.    First offense within 7 years is $50, and is not considered a moving violation.
b.    Second offense within 7 years is $100, moving violation
c.    Third offense within 7 years is $250, moving violation
 
Tanika M. Capers, Esq.
So You Want to File for Bankruptcy?

Bankruptcy is the legal process that gives a debtor acting in good faith a “fresh financial start” by eliminating most of the debtor’s debts, and repays creditors in an orderly manner to the extent the debtor has available property.

The filing of a bankruptcy petition triggers an “automatic stay” that prevents creditors from collecting debts. Most creditors cannot take any action during the course of an open bankruptcy without permission of the court. Notably, filing bankruptcy will:

* Stop bill collectors from calling.

* Stop wages from being garnished.

* Stop most pending civil court proceedings.

* Temporarily stop foreclosures and possibly delay evictions.

Once a bankruptcy is successfully completed, most of a person’s debt is permanently erased (“discharged”). This means creditors cannot collect on the discharged debt.   Once you’ve decided that bankruptcy is the right solution for your financial situation, you will need to decide which type of bankruptcy if most beneficial.  If you are an individual or small business owner, then your most obvious choices are Chapter 7 “liquidation’ bankruptcy or Chapter 13 “wage earners” or “reorganization” bankruptcy.

A Chapter 7 bankruptcy is often referred to as a “liquidation” bankruptcy. This type of bankruptcy cancels most ordinary consumer debt and allows the debtor to keep certain “exempt” property.  However, you may have to surrender some property.  A bankruptcy trustee may collect and sell your nonexempt money and assets, and then use the proceeds to pay your creditors. Any remaining balances owed to those creditors are discharged.  People who file Chapter 7 are usually low income earners with few assets to protect.  Chapter 7 is designed primarily to help eliminate overwhelming debt. Chapter 7 will not permanently stop a pending foreclosure or car repossession. To keep a car or house in Chapter 7, you must be able to keep making the regular payment. Chapter 7 can be helpful for car owners who want to stop paying a car loan and surrender the car. It also helps homeowners by eliminating the balance due on their mortgages after foreclosure.

A Chapter 13 bankruptcy provides a “reorganization” of debts by allowing the debtor to either partially or fully repay debts through a three- to five-year repayment plan. Chapter 13 allows you to keep some or all of your property. In exchange, you must pay the trustee all of your monthly disposable income for three to five years, and the trustee in turn pays your creditors. Upon successful completion of a Chapter 13, your remaining dischargeable debts are eliminated.  The total of payments over the three to five years must be enough to pay at least the full amount of all mortgage arrears, back taxes, payments for retained secured items, child support and spousal support arrears, and a trustee fee.

Tanika M. Capers, Esq. 

Disclaimer:  This information is provided for general purposes only and is not meant to constitute legal advice.  Legal advice is dependent upon the specific circumstances of each situation and provides an analysis of the last commensurate with the facts of the situation.  MFM accepts no liability for the consequences of any actions taken on the basis of the information provided herein.

Nevada Revised Statute (NRS 33.018), defines domestic violence as:

  1. Domestic violence occurs when a person commits one of the following acts against or upon the person’s spouse or former spouse, any other person to whom the person is related by blood or marriage, any other person with whom the person is or was actually residing, any other person with whom the person has had or is having a dating relationship, any other person with whom the person has a child in common, the minor child of any of those persons, the person’s minor child or any other person who has been appointed the custodian or legal guardian for the person’s minor child:

(a) A battery. (b) An assault. (c) Compelling the other person by force or threat of force to perform an act from which the other person has the right to refrain or to refrain from an act which the other person has the right to perform. (d) A sexual assault. (e) A knowing, purposeful or reckless course of conduct intended to harass the other person. Such conduct may include, but is not limited to:

  1. Stalking.
  2. Arson.
  3. Trespassing.
  4. Larceny.
  5. Destruction of private property.
  6. Carrying a concealed weapon without a permit.
  7. Injuring or killing an animal.

(f) A false imprisonment. (g) Unlawful entry of the other person’s residence, or forcible entry against the other person’s will if there is a reasonably foreseeable risk of harm to the other person from the entry.

If you find yourself faced with any of the above scenarios, an order for protection may be for you or someone you love.  An order for protection is a written court order that is designed to stop violent and harassing behavior and to protect you and your children from the abuser. Orders for protection can also be known as protection orders or restraining orders.

There are three types of orders in Nevada: An emergency protective order is an order that you can request by telephone if you are the victim of domestic violence, and the abuser is arrested and put into jail. It lasts for up to one week until a court hearing can be held. To get an emergency protective order, you must call within 12 hours of the abuser’s arrest. Emergency protective orders are convenient because you do not have to appear in court. You can call a justice of the peace court or district court and they will issue the order over the phone and have the police serve the abuser with the order while s/he is in jail. A judge should be available 24 hours/day, 7 days/week in counties whose population is 52,000 or more; in a county with less than 52,000 people, it is optional (not mandatory) for the county to make judges available 24 hours per day.*

temporary order for protection is an order that can be granted based on your testimony or any evidence you present to the court in your application for a temporary or extended order for protection. If a judge finds that you or your family are in danger of being harmed, s/he can grant a temporary order within 1 judicial day of receiving your application.  A temporary order can last up to 30 days.  However, if you file for an extended order at the same time that you file for the temporary order (or at any time while the temporary order is in effect), the temporary order will last until the date of your hearing for an extended order (which could be up to 45 days from the date you file for the extended order.

An extended order for protection is awarded by a judge only after a hearing in which you and the abuser each have an opportunity to present evidence and tell your different sides of the story.  An extended order lasts for up to one year.  The expiration date should be on the first page of the order.

Oftentimes, it is confusing understanding the differences between civil and criminal cases regarding domestic violence.  In a civil domestic violence action, you are asking the court to protect you from the person abusing you.  You are not asking the court to send that person to jail for committing a crime.  However, if the abuser violates the civil court order, he may be sent to jail for the violation.  In a civil case, you are the person bringing the case against the abuser and (in most circumstances), you have the right to withdraw (drop) the case if you want to.

The criminal law system handles all cases that involve violations of criminal law such as harassment, assault, murder, theft, etc.  A criminal complaint involves the abuser being charged with a crime.  In a criminal case, the prosecutor (also called the district attorney) is the one who has control over whether the case against the abuser continues or not.  It is the county/state who has brought the case against the abuser, not the victim.  It is possible that if you do not want the case to continue (if you do not want to “press charges”), the prosecutor might decide to drop the criminal charges but this is not necessarily true.  The prosecutor can also continue to prosecute the abuser against your wishes and could even issue a subpoena (a court order) to force you to testify at the trial.

To obtain an Order of protection, the correct forms must be filed with the appropriate Court. A Judge reviews the application for the Protective Order and does one of three things; the Judge 1) Signs the Order granting protection; 2) Denies the Order and does NOT grant protection; or 3) Orders a hearing to determine whether the Order should be granted.  Once a Judge signs an Order of protection and dependent upon the type of Order granted, the Adverse Party may need to be notified before the Order goes into effect.

For additional assistance please contact an attorney, The Legal Aid Center of Southern Nevada or the Family Division of the District Court where you reside.

 

 

Get Home Safely: 10 Rules of Survival

Unless you live under a rock, there is an energetic awareness to the number of people who are being shot and killed during confrontations with police.

PBS station WFYI, in partnership with the SALT Project, Trinity United Church of Christ and Christian Theological Seminary developed the short film: “Get Home Safely: 10 Rules of Survival.”

10 Rules of Survival if Stopped by the Police:

  1. Be polite and respectful when stopped by the police. Keep your mouth closed.
  2. Remember that your goal is to get home safely. If you feel that your rights have been violated, you and your parents have the right to file a formal complaint with your local police jurisdiction.
  3. Don’t, under any circumstance, get into an argument with the police.
  4. Always remember that anything you say or do can be used against you in court.
  5. Keep your hands in plain sight and make sure the police can see your hands at all times.
  6. Avoid physical contact with the police. No sudden movements, and keep hands out of your pockets.
  7. Do not run, even if you are afraid of the police.
  8. Even if you believe that you are innocent, do not resist arrest.
  9. Don’t make any statements about the incident until you are able to meet with a lawyer or public defender.
  10. Stay calm and remain in control. Watch your words, body language, and emotions.

I am adding an Eleventh tip…PRAY… for God’s guidance and protection.

When you can’t make lemonade out of lemons

Nevada Lemon Law

You bought a new vehicle two months ago and every week since your purchase…something has malfunctioned!!! The Nevada Lemon Law applies when, during the first year there is any defect or condition that substantially impairs the use and value of the motor vehicle to the buyer. The lemon law does not cover a defect or condition that is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle.   If a motor vehicle does not conform to all of the manufacturer’s applicable express warranties, and the buyer reports the nonconformity in writing to the manufacturer before the expiration of the manufacturer’s express warranties or one year after the date of the motor vehicle’s delivery to the original buyer – whichever is earlier – then the manufacturer, its agent or authorized dealer must make the necessary repairs to conform the motor vehicle to the express warranty.

The necessary repairs must be made even if the term of the warranty has expired.  In addition, if the manufacturer, its agent or authorized dealer is unable to conform the motor vehicle to any applicable express warranty by repairing or correcting a nonconformity after a reasonable number of attempts, the manufacturer must either replace or repurchase the motor vehicle.

The Nevada lemon law establishes a presumption that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties if, within the time the express warranty is in effect or within one year following the date of the motor vehicle’s delivery to the original buyer, whichever occurs first, either of the following occurs:

1. The same nonconformity has been subject to repair four or more times by the manufacturer, its agent or authorized dealer but the nonconformity continues to exist, or

2. The motor vehicle is out of service for repairs for a cumulative total of 30 or more calendar days.

The 30-day period is extended by any period of time in which the necessary repairs cannot be made for reasons that are beyond the control of the manufacturer, its agent or authorized dealer.  If the manufacturer has established or designated an informal dispute settlement procedure, then the buyer may not bring an action under the provisions requiring refund or replacement unless the buyer has first resorted to the informal dispute settlement procedure.