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Recent blog posts

b2ap3_thumbnail_mlnarik-law-identity-theft.jpgYour identity is under constant assault. It could be by low-tech means such as stealing your mail or digging personal documents out of your trash. It could be by the more publicized means of cyber-attacks on your personal devices or the storage networks of people with whom you exchange your personal information. Either way, your personal information – your identity – is perpetually at risk. There are some defenses you can implement to slow or deter the attack, but unfortunately, today’s reality is that it isn’t so much a matter of if someone steals your identity, but when. Here are a few tips to help you deter the would-be imposters and what you can do once it inevitably happens to you.

Identity theft can destroy the socio-economic marvel you have worked so hard to become. With just a few pieces of your personal information, identity thieves can do any of the following:

  • Generate loans in your name that they have no intent of ever paying back because you are on the hook for default of repayment.
  • Transact money from your accounts or create new accounts in your name through which thieves filter money from other types of scams.
  • Become a defendant in a criminal or civil case in which they had used your identity to perpetrate a crime or fraud.
  • Max out and never make payments on credit cards issued to them based on your identity, leaving you on the hook for default payments and destroying your credit score.
  • Conduct electronic business as if they were you.

One of the best things you can do to protect yourself is to remain aware. Awareness is the key to all of your defenses:

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b2ap3 thumbnail 1st time homebuyers

As we approach the summer home buying season, here is some practical advice for first time homebuyers from my experience both as a real estate litigator and a recent first time homebuyer:

Don’t fret about the market: I am often asked if I think now is a good time to buy. My response to this recently has been “Well, what are you buying – a house or a home?” The market seems dangerously inflated at present and may very well decline in the short term. However, given long term inflationary trends, it seems highly likely prices will before too long return to these levels and ultimately go higher. If you are a speculator who wants to flip, or somebody that wants to sell in a few years and move somewhere else or upgrade off accumulated equity, it is a bad time to buy and there is a fair probability you will get hurt at these prices.

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8

b2ap3_thumbnail_Incapacity-Planning-mlnariklaw-office.jpgThe purpose of estate planning is to guide the transfer, and management, of your property in a manner that makes sense for your family. While it may sound simple, it can only be achieved through careful planning. Failure to plan carefully may result in unintended beneficiaries receiving your property, or result in unnecessary transfer taxes.

While planning for death is a significant aspect of the process, estate planning deals with more than just asset transferal upon your death. It can provide for asset transferal through gifts during your lifetime. Additionally, prudent planning can include management of assets in the event of incapacitation.

There are several considerations driving the process of estate planning. Family is important, so it’s vital that you consider not only who should receive your assets, but how, and when. Should your children’s inheritance be managed in a trust, or should they receive it outright? At what age should a trust terminate, and should your spouse be a beneficiary? Who should act as a trustee? Would a program of gifts over a lifetime make more sense?

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b2ap3_thumbnail_bad-neighbor-dog.jpgWhen a neighbor is being a nuisance, there are some instances where the person affected may file a claim against them. This is often seen when the nuisance affects the quality of life, the value of property or may injury someone through illness or bodily harm.

If the neighbor in question is continuing an act or activity that could cause property damage in any manner, he or she should desist. It is best to first communicate with the neighbor about the grievance before any action is taken. It is only when communication fails with this individual that further actions should be sought. A property law lawyer should be contacted and consulted to determine what to do next.

In some situations, once a lawyer has been contacted, a file may be issued to the neighbor to desist with the activity that is causing the damage. However, while this is a legal document, the person is not forced to follow the order. At that point, it may be necessary to gather evidence of the problem and determine if litigation is the next best route. No matter how obvious the situation may seem that harm has been caused by the person responsible, it is best to obtain as much proof of the incident as possible to strengthen the case.

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9

b2ap3 thumbnail Mlnarik Law Patricks dayWhen advising clients on legal challenges, there are two components to every piece of advice: the legal and the practical. Advice on avoiding a fine for public intoxication is no exception to this principle. This St. Patty’s Day, here is what you need to know about drunk in public laws in California, no matter where you party.

First, the legal: Public intoxication in California is restricted by California Penal Code §647(f). In order to obtain a conviction, the prosecutor must prove that you were willfully under the influence of drugs, alcohol and/or a controlled substance (including prescription medication) and in a public place. While this seems broad, there are a number of limitations to the enforcement of this provision that you can leverage to defeat your charge or reduce your penalties.

It is worth noting first that the law requires the intoxication to be willful. This means that if one were drugged against their will, such as by ingesting a date rape drug, they cannot be convicted under §647(f). Also, the law requires that you be in a public place. This includes public property (sidewalks, streets, parks) and private property open to the general public (such as nightclubs, malls and airports). This also means that if police discover you in a private place, such as your home, and bring you into a public place (the sidewalk directly outside) there can be no conviction under §647(f).
Furthermore, there are constitutional requirements that limit enforcement. Under the Fourth Amendment, the police need reasonable suspicion based on articulable facts to stop you. They can’t just pull you off the street and question you about alcohol usage. They need to be able to testify that you were stumbling or causing a disturbance in a manner that made you appear intoxicated in order to stop and test you. Once they’ve stopped you, they need probable cause to issue a citation and/or arrest you. They usually accomplish this by performing a field sobriety test. If any of these defenses or situations applies to you, be sure to raise them. The mere act of raising them, if the prosecutor finds them to be credible, is likely to result in dismissal. The DA’s office and the police do not have the resources to be fighting questionable §647(f) cases.

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Posted by on in Bankruptcy Law

b2ap3_thumbnail_chapter-13-bankruptcy.jpgMany people know that bankruptcy can affect their credit, but aren’t sure exactly how. This article focuses on your credit report after bankruptcy and the steps you can take to ensure that you are rebuilding your credit after you complete your bankruptcy case.

Most individuals file either Chapter 7 or Chapter 13 bankruptcy. Chapter 7 bankruptcy takes about three months to complete, while Chapter 13 takes between three and five years. Once a discharge is entered, no creditor who was listed in the bankruptcy schedules can thereafter try to collect the debt (unless the debt was non dischargeable, such as a mortgage or tax debt). While the bankruptcy notation stays on your credit report for ten years after entry of discharge, it becomes increasingly insignificant in the decision to grant new credit with every year that passes.

Following your case, you are entitled to have the balance of each discharged debt shown as zero on your credit report. We suggest you order a credit report about a month after your discharge is entered in order to ensure that no discharged debts are still showing a balance due. Your goal in rebuilding your credit after bankruptcy is to ensure that current, positive information is reported.

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13

b2ap3_thumbnail_naril-gorsuch-nomination.jpgThose of us who practice law for a living are often frustrated with the media coverage on legal issues. It is not difficult to talk to legal experts for an opinion, yet few outlets do this and even fewer give these experts front and center stage to direct readers.

The Neil Gorsuch nomination epitomizes this problem. If you google “Neil Gorsuch on the issues” you’ll find a lot of journalists focused on all the same wedge issues, such as abortion, gun rights and birth control that journalists typically love to focus on when covering politics. What they don’t understand, is that the courts are not politics and you can’t cover law like politics. Here, I’d like to cover what’s more important: how he plans to shape the structure, function and operation of the United States government itself.

Much of the battle in this area centers on administrative law: the rarely discussed body of law which governs executive agencies. In the post-“New Deal” era, the Courts have strongly shifted power from the Congress and the Courts to the executive branch. Separation of powers focused conservative justices, such as Gorsuch seek to shift some of that power back to the other branches.

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12

Posted by on in Estate Planning

b2ap3_thumbnail_valentine-plan-trust-law_20170214-004027_1.jpg

It’s the season of love – another Valentine’s Day is upon us. I’m sure you have big plans for impressing your loved ones and demonstrating just how much you care for them. But as you move along in life, the way you care, the pool of people who you care for and how you plan to care for them changes. And the way you express love changes – from romantic gestures of dinner, flowers, jewelry or chocolates to more advanced planning for the future.

This type of planning is often memorialized in your estate plan, which can take care of you and your loved ones throughout your life and after you pass away. The first step in creating a well-thought-out estate plan should be to determine your planning goal and then execute the right mix of estate planning tools to meet that goal.

If you sincerely wish to demonstrate your care for loved ones, you should consider incorporating long-term care as a part of your estate plan. Anyone who wants to maximize their assets in life and in distribution to their loved ones after they pass should also plan for the possibility of their own or their spouse’s disability and need for long-term medical care. The failure to incorporate this into your estate plan could result in leaving your loved ones with the cost and stress of petitioning the courts for control over you and your assets, and pouring money to nursing homes.

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b2ap3_thumbnail_H1B.jpg

On January 27, 2017, the President signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” This Order affects refugees and, more to the point of this article, skilled workers holding H1B visas. We will explore what impact this Order has on skilled workers, and H1B visa reforms the President intends to carry out in the near future.

I)                    I) H1B Visas

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b2ap3_thumbnail_CFPB-building.jpgNavient, formerly party of Sallie Mae, Inc., has been sued by the Consumer Financial Protection Bureau (CFPB). For years, Navient created obstacles to repayment by providing bad information, processing payments incorrectly, and failing to act when borrowers filed complaints. Because of their shortcuts and deception, the company also illegally cheated many struggling borrowers out of their rights to lower payments, which caused many borrowers to pay much more than required for their loans. The CFPB seeks to recover significant relief for the borrowers harmed by these illegal servicing failures. The lawsuit was filed on January 18, 2017.

Navient is the largest student loan servicer in the United States. It services the loans of more than 12 million borrowers, about half of which are serviced under Navient’s contract with the Department of Education. Altogether, it services more than $300 billion in federal and private student loans.

Specifically, the lawsuit alleges that Navient failed to correctly apply borrower payments to their accounts; steered struggling borrowers toward paying more than they have to on loans; obscured information consumers needed to maintain their lower payments; deceived private student loan borrowers about requirements to release their co-signer from the loan; and harmed the credit of disabled borrowers, including severely injured borrowers.

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14

b2ap3_thumbnail_woker-injuries.jpgInjuries at the office are common in certain industries. When the company has dangerous materials, substances, equipment or tools, employees may be harmed with greater frequency than those in office or cubicle locations. However, accidents do occur in an office setting as well that could lead to extensive damage requiring a trip to an emergency room. When this occurs, it is vital to understand what is available through workers’ compensation benefits and what is not covered.

If these packages are not purchased by the company, it is essential to know what has been put in place of this type of insurance coverage so medical treatment may be repaid.

Workers’ Compensation Explained

Packages purchased by the owner of the company or through management to provide a monetary or health insurance for illness due to accidents and issues arising at work are considered workers’ compensation programs. These plans are in place to ensure that the employee is not capable of suing management or other parts of the company for standard and severe injury. While there are certain stipulations that may allow litigious actions, most suits are avoided through these packages. Many areas are covered to ensure the laborer is taken care of as much as possible when he or she is not able to work due to the illness or injury. The monetary payouts that are provided in certain situations are paid to the employee or his or her family in the event of his or her death. Most workers are covered through these plans even if only temporarily at the company. The only exceptions are those exempt from workers’ compensation benefits.

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b2ap3_thumbnail_trust-will-agreement.jpgProbate is a division of the Superior Court of the State of California. The Probate court has jurisdiction over what are deemed “legally incompetent parties”, generally that includes deceased, disabled, and incapacitated persons. The responsibility of the Probate court is to protect these individuals and their assets.

Understanding Wills

Losing a loved one when you expect or when unexpected is a difficult and sad situation. Besides, most executors named in the Will report experience pressure and stress due to overwhelming circumstances. The situation becomes more problematic when there is a contest or a challenge on the Will or when you expect that a legal action against you as an executor of the estate may be taken. Probate attorneys witness the pressure that many executors go through. However, it can be a pretty simple situation for you with a piece of advice.

Is the Common Knowledge the Whole Truth?

Typically, most people think that when someone makes a Will and dies, the family will respect his/her wishes. Subsequently, it is not strange to find many executors feeling very comfortable thinking that they will just carry out the wishes of the deceased and give the estate to all the named beneficiaries of the Will. Far from that experience, sometimes one or more person may challenge the Will of the deceased for one reason or another. The complacency of many executors confirms the saying that "ignorance is bliss" since the Laws in relation to Wills are actually very complicated. It takes many years and practice to understand what they say and how they should be applied and believe it or not, you need a hand and direction in this.

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Posted by on in Other Subjects

b2ap3_thumbnail_inauguration-day-2017.jpg

As we come face to face with another changing of the guard and our next president enjoys his inauguration, some are preparing to survive while others prepare to thrive. I can’t help but think it is all a state of mind. After all, the President of the United States has very little influence over our day-to-day activities, and whether we start the day believing it is going to be great or not, the choice is ours. We can dwell on the past election and the propaganda that motivated (or perhaps didn’t motivate) voters, or we can look ahead to the future, count our blessings and make the most of what we have been given.

      Of course there will always be those with marketing strategies that influence what we buy, sell and consume. Ultimately it is up to us to look out for our own interests. The freedoms we enjoy are great and the power we have to independently make choices of our own can result in our prosperity or our own demise.

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b2ap3_thumbnail_PastDue.JPGMany people think of the start of a new year as a great time to re-evaluate their financial goals. In fact, “spend less and save more money” came in third in a Marist poll of the top ten New Year’s resolutions for 2017, behind only “being a better person” and “exercise.” But have you ever re-evaluated your student loan payments?

You may not be sure what your options are for student loan repayment, and many not know that there are programs out there to help you reduce your monthly payment and free up some more room in your budget. These programs can also assist those who have already defaulted on their student loans.

Repayment plans allow a student loan borrower to tailor their payments to their budget and their current income—and for some people, the difference between the standard loan payment and the payment under an income based repayment plan can be thousands of dollars! Here are a few of the options for those borrowers with government-backed Direct Loans.

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b2ap3_thumbnail_new-law-ahead-2017_20170104-011928_1.jpgBeginning January 1st, California will be implementing a number of new laws—in fact, Governor Jerry Brown signed 898 bills this year. These new laws may affect you as an employee, a business owner, a gun owner, or in many other ways. Here are a few of the new laws taking effect this year, and what they mean for you.

Minimum Wage, Equal Pay, and Parental Leave

The statewide minimum wage goes from $10 to $10.50 an hour for businesses with 26 or more employees—a rate that will rise to $15 by 2022. Under another law, Assembly Bill 1676, an employer can’t pay a woman less than her male colleagues because of her prior salary. Assembly Bill 2393 gives up to 12 weeks of paid parental leave to all K-12 and community college employees, including classified workers and community college faculty.

Don’t Let the Bedbugs Bite!

Landlords will be prohibited from showing, renting or leasing a vacant unit that they know has a bedbug infestation. This will give tenants more protection from landlords who knowingly rent out apartments that could be considered uninhabitable. Here at The Mlnarik Law Group, we’ve handled a number of rental and habitability issues on behalf of tenants. If you are a tenant seeking relief, or a landlord who wants to ensure that you’re complying with current law, please give us a call!

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b2ap3_thumbnail_will.jpgWhat Should I Ask an Attorney that Handles Probate and Estate Planning?

Ask about their experience; ask them how many probates have they handled in the last 10 years, and ask if they’ve been sued for one.

Questions to Ask

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b2ap3_thumbnail_images-3_20160802-183955_1.jpgWhen a person hires someone else to provide goods or services to him or her, the terms of the contract dictate when the work is to be performed or the goods to be provided. However, situations can occur in which the contractor is not providing timely delivery, and the customer may pursue legal action to enforce his or her rights.

Contract Provisions

Courts give wide breadth to individuals to enter into contracts in a voluntary fashion. Therefore, courts will usually hold the parties to the terms of the contract that they both willingly signed, absent certain rare exceptions. If the non-breaching party wants to enforce the contract, the court must be able to refer to clear provisions in order to effectuate the agreement as the parties intended.

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b2ap3_thumbnail_images-2_20160802-183449_1.jpgThere is a common misconception that if an individual is injured on the job and pursues a Workers’ Compensation claim, they are effectively filing a lawsuit against their employer for reimbursement of medical costs and lost wages.

Workers’ Compensation benefits are not the same things as suing an employer.

Work injury benefits arise from an employer paying into Workers’ Compensation insurance.

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b2ap3_thumbnail_download-1_20160802-183137_1.jpgMany individuals who file bankruptcy file under the specific chapter that they qualify for. If they are not eligible for one filing, they explore the other. However, some people fall into multiple eligibilities and determine which bankruptcy filing will better suit their needs.

Chapter 7 Process

Chapter 7 bankruptcy is a liquidation bankruptcy. Its main benefit is being able to eliminate unsecured debts like credit card debt and medical bills. During a Chapter 7 filing, a bankruptcy trustee is appointed to administer the case, including acquiring and selling the debtor’s property that is not exempt. The funds from these sales are then sent to creditors.

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b2ap3_thumbnail_download_20160802-182840_1.jpgBefore you hire independent contractors, consult with a qualified business attorney to be sure you will comply with IRS regulations. Your attorney can help you draft a written contract that details the duties of the contractor and keeps you on the right side of the law.

The IRS and the Department of Labor are cracking down on businesses that use contractors but treat them like real employees – or, as the IRS calls them, “common-law employees.” Before you misclassify that contractor, ask yourself these 5 questions:

Do you control the work?
If you direct how and where and at what time someone works for you, then the government says you have an employee, not a contractor.

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