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Experiencing a Financial hardship?

A WAGE GARNISHMENT OR INCOME WITHHOLDING CAN BE CHALLENGED BY REQUESTING A HEARING UNDER 45 CFR 32.5. IF YOU WERE FIRED, OR HAVE SOME TYPE OF DISABILITY YOU CAN FILE A FINANCIAL HARDSHIP UNDER 45 CFR PART 32.9
§ 32.9 Financial hardship.

(a) A debtor whose wages are subject to a withholding order may, at any time, request a review by the Department of the amount garnished, based on materially changed circumstances such as disability, divorce, or catastrophic illness which result in financial hardship.

(b) A debtor requesting such a review under paragraph (a) of this section shall submit the basis for claiming that the current amount of garnishment results in a financial hardship to the debtor, along with supporting documentation. The Secretary shall consider any information submitted in accordance with this part.

(c) If a financial hardship is found, the Secretary shall downwardly adjust, by an amount and for a period of time established by the Secretary, the amount garnished to reflect the debtor‘s financial condition. The Secretary will notify the employer of any adjustments to the amount to be withheld.

 

Source: 45 CFR § 32.9 – Financial hardship.

Related: https://www.nbcnews.com/nightly-news/video/financial-hardships-force-growing-number-of-farmers-to-give-up-family-business-1451407939513

Duty to Protect / Correct Utilizing a Universal Standard of Principles (Part Two)

After determining which rights were violated (whether unintentional or outright fraud) utilizing a universal standard of principles and ULTRS (universal language for testimony and reports) to determine which duty was triggered, we can begin to rectify the situation.

This leads to two questions: 1. Where does this situation fall on the spectrum of fairness and, depending on where it falls, 2. What does that translate into in terms of specific procedures that must be followed?

Spectrum of Fairness

The court in Baker v. Canada (Minister of Immigration and Citizenship) listed four factors which help determine where on the spectrum of fairness a given decision lands. Note that the “legitimate expectations” of the person challenging the decision is a consideration, but it is considered before the factors listed below. The doctrine of “legitimate expectations” does not affect where the decision lands on the spectrum of fairness. Rather, it tells us some of the specific procedures that must be followed.

i. Nature of the decision being made and the process followed in making it: here, an assessment of how formal or informal the decision at hand is made. The more adjudicative the administrative decision maker’s nature and the process it follows (i.e. a formal decision), the more procedural safeguards necessary. The more operational or administrative (i.e. an informal decision), the less procedural safeguards necessary

ii. Nature of the statutory scheme and the terms of the statute pursuant to which the body operates: here, an assessment of the statutory scheme is made. If no further remedies or appeal are available under the statute, more procedural safeguards are necessary because the first level of the decision must be procedurally fair.

An assessment of the complexity of the decision being challenged is also made. If it is a relatively simple decision, it will fall at the lower end of the spectrum.

iii. Importance of the decision to the affected parties: here, an assessment of how important the outcome of the decision is to the parties affected. Where the decision is important to the affected parties, high procedural safeguards are necessary. For example, in Kane it was held that a high standard of procedural fairness is required when the right to continue in one’s profession/employment is at stake.

iv. Choices made by the decision-maker: here, an assessment of the power given to the administrative decision maker over its own procedures is made. If they have a lot of power, they are under a high procedural obligation and the decision is at the higher end of the spectrum.

Once these factors are considered, we end up with a point on the spectrum. The next question is: how does this translate into specific procedures?

Specific Procedures

The specific procedures required differs case by case. In Mavi, Justice Binnie stated that we ultimately need a fair process by considering what is relevant in the circumstances. There are general considerations that the court looks to when determining specific procedures:

  • The determination of specific procedures is a balance of fairness, efficiency and predictability of the outcome; and
  • The people affected by a decision have the opportunity to be heard and considered.

The doctrine of “legitimate expectations” can create specific procedures that must be followed where the administrative decision maker has made a certain representation or promise regarding specific procedures that will be followed.

An oral hearing is not necessarily required under the common law where a statute does not specify whether an oral hearing must be held. In Khan, the court held that, if an administrative decision maker is going to decide adversely against someone’s credibility and that person is affected by a decision of the administrative decision maker, an oral hearing must be held.

The enabling statute may state whether reasons for the decisions are required. An administrative decision maker who is subject to the SPPA must give reasons to the affected parties if they ask for them. At common law, Baker clarified that where a decision has important significance for an individual, where there is a statutory right of appeal or in other circumstances, some form of reasons should be required. In Newfoundland and Labrador Nurses’ Union, the court held that, at the procedural fairness stage, the only consideration is whether there is a duty to provide reasons. The adequacy of reasons is not a relevant consideration at this stage. In Baker, it was held that where some form of reasons are required, there is flexibility as to what those reasons generally look like. The courts are very flexible as to what counts as reasons.

Conclusion

At this stage of the analysis, there is a two step test. Determining what procedures are required after determining where on the spectrum a given decision lands is a contextual analysis.

My next blog entry will focus on procedural obligations arising under the constitution.

Should Witness ‘Flipping’ Be Illegal? — via Timothy T. Brock

FindLaw Blotter - The FindLaw Crime and Criminals Blog

 

Should Witness ‘Flipping’ Be Illegal?

Even if you’re not a criminal defense attorney, watching a couple episodes of “Law and Order” will probably introduce you to the concept of police and prosecutors going after “small fish” in order to get the “big fish,” criminally speaking. This process involves lower level suspects or defendants exchanging testimony against higher level targets for lighter sentences or immunity.

The practice of flipping has become especially prominent in the investigation headed Robert Mueller looking into possible collusion between Russia and the Donald Trump presidential campaign. In fact, in the wake of news that Trump longtime lawyer and “fixer” Michael Cohen would be cooperating with federal prosecutors, the president decried the practice of witness flipping, claimed it encourages criminal defendants to unfairly “make up stories,” and asserted that “it almost ought to be illegal.”

Flipping may have its issues, but should it be outlawed?

The Force of Flipping

Much of the incentive to cooperate with law enforcement comes from the amount of power and discretion prosecutors have in determining both criminal charges and the possible sentences for convictions or guilty pleas. As criminal defense attorney Ken White pointed out at the Washington Post, “Federal prosecutors could flip Cohen because they had broad discretion to charge him with dozens of crimes or none; they alone decided how sweet a deal to offer and how ugly the alternative was.”

When faced with myriad possible criminal charges and years or decades behind bars (not to mention days and nights in jail until their case is resolved), defendants often feel they have little option but to give prosecutors any information they can, even if that information isn’t always accurate.

It doesn’t help that many of those targeted for flipping lack the financial resources to mount an adequate defense, and public defenders, too, are often underfunded and overworked. The choice of whether to flip or stay quiet and fight criminal charges is, more often than not, no choice at all.

Running on Flipping and Reform

“The criminal justice system,” White asserts, “runs on flipping defendants. If we want fairness for both the cooperating defendants and the people they implicate — if we want faith in the results — we need serious reform.”

Reform will almost certainly not include President Trump’s suggestion that flipping be outlawed, better funding for criminal defense and more transparency and consistency in charging and sentencing can be positive steps to, if not eliminating flipping, ensuring fairness for both those offering evidence against other criminal targets and those against whom that evidence will be used.

Related Resources:

via Should Witness ‘Flipping’ Be Illegal? — timothytbrock

Community Property – California Estate Planning Laws — The Kate’s Vine

There was a recent story about a California man who was a high-level Silicon Valley executive. He met his sixth wife when he went to a bar where she worked as a waitress. They married. The honeymoon was short-lived. They battled for a while. The man passed away and left his $100 million to each […]

What Is the Community Property Law in California?

Written by Jane Meggitt; Updated June 20, 2018

Most couples entering wedlock in California know that it is a community property state, but may not know exactly how that affects them should they ever divorce. Basically, once a couple marries, or enters a domestic partnership, they are no longer two separate units but one legal entity. Community property is all property and all debts acquired during a marriage or partnership. There is an exception for inherited property and gifts.

 

Community Property

Property is virtually anything that can be sold or bought. Couples may think of community property in terms of real estate, bank accounts, retirement and pension plans, stocks and bonds and the like, but it also applies to cars, furniture and even clothing. When a couple divorce in California, the court decides how the marital property and marital debts are divided. It doesn’t matter if only one spouse incurred debt, as both of them are responsible for it. The mortgage on the family home is one such debt.

Separate Property

Property that a spouse acquired before a marriage is not part of community property. If one spouse had their own home prior to marriage, for example, and continued to own it and rent it out, not only is the dwelling not considered community property but neither is the rental income. Inheritances are always exempt from community property, and so is property purchased with inherited funds, as long as that is provable. Once a couple legally separates, their earned income becomes separate property, so that separation date is crucial.

Commingled Property

Some property becomes commingled during the course of the marriage, and legal help is generally needed to sort this out. For example, if a spouse had their own home before they married, but sold it and used the proceeds toward the martial home, that is separate property. If there’s a mortgage on the house, the resulting equity in the home is community property, and that means commingled equity. Pension plans are another tricky area, since one spouse may have contributed to the plan prior to marriage, making that separate property, but continued to contribute to the plan after marriage, making those contributions community property. Pension plan rules are quite detailed and an attorney may be necessary to ensure the property division meets all legal requirements.

Spousal Death

Community property discussions tend to focus on divorce, but the laws also come into play when one spouse dies. Assuming that the spouse left a will, he or she can only transfer half of the marital community property to other parties. The surviving spouse still owns the remaining half. If the spouse dies without a will, or intestate, that’s where problems can really arise. California laws of intestate succession, or who is entitled to the property of someone dying without a will, grants the late spouse’s property entirely to the surviving spouse only if there are no surviving children, grandchildren or other members of the immediate family such as parents. If there is one surviving child or other immediate family members, half of the late spouse’s property goes to the surviving spouse and half to the child. If there are multiple children or grandchildren, the spouse receives just one-third of the late spouse’s separate property, and the rest is divided among the children and grandchildren.

Opting Out

While community property is the law in California, there are ways for married couples to avoid it. For couples who have not yet wed, the answer is a prenuptial agreement, also known as a premarital agreement. Both parties must have their own attorneys to ensure fairness regarding the agreement. Those who are already married may enter into an antenuptial agreement, also known as a martial agreement. These agreements spell out what belongs to each member of the couple. Keep in mind that under California law, any type of pressure or duress in signing these agreements may invalidate them, so this is not a document put together the day before the wedding.

via Community Property – California Estate Planning Laws — The Kate’s Vine

Bend the curve with Average Contract Value (ACV) — with me

SaaS entrepreneurs know how hard it is to scale their companies from zero to their first few $M in revenue. I’ve posted before about misconceptions about scaling SaaS businesses – namely that adding more sales pods will lead to exponential growth. While pod additions are part of it, the single most powerful lever in driving exponential […]

via Bend the curve with Average Contract Value (ACV) — vcwithme

Lawsuit: Insurer Anthem Misleading California Customers

SACRAMENTO, Calif. (AP) — A California consumer advocacy group is suing Anthem Blue Cross over allegations that the health plan is misleading several hundred thousand customers about changes in their policies for next year.

Consumer Watchdog filed a lawsuit in Los Angeles County Tuesday claiming Anthem is charging more for inferior coverage and burying the changes in a mountain of paperwork.

In most of California, Anthem is changing its “preferred provider organization,” or PPO, plans that provide coverage for out-of-network doctors to “exclusive provider organization,” or EPO, policies that do not.

Consumer Watchdog says many customers chose PPO plans specifically for the option to use out-of-network providers and will be surprised when their bills are no longer covered.

Anthem says state regulators approved the changes and the lawsuit is without merit.

via Lawsuit: Insurer Anthem Misleading California Customers — FOX40

Exxon Legal Issues with Establishing Environmental Accountability:

Watts Up With That?

This is in the news today via “Climate NEXUS”, which is a Madison Ave. PR firm:

New York Attorney General Eric Schneiderman announced that he is launching a legal probe into Exxon’s climate denial. The inquiry will look into both consumer and investor protection laws, covering the oil giant’s activity dating back to the 1970s. Schneiderman’s investigation could open “a sweeping new legal front in the battle over climate change,” says the New York Times, which broke the story. Two separate reports by InsideClimate News and the Los Angeles Times uncovered that Exxon has known about the dangers of climate change since the 1970s but sowed doubt by funding climate change skeptics to preserve its business. Exxon has been compared extensively to the tobacco industry, which was convicted of racketeering in 2000 for deliberately deceiving the public about the dangers of its products.

It seems all this is part of…

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