Answers That Bounce Back

One thing I've discovered about running this blog is that I get questions from all over, and from lots of people. As a result of the volume of questions from all these people and locations, combined with delays occasioned by "real life", what I have found happening is that answers I send out are bouncing back to me as undeliverable. For whatever reason, email addresses change, or email accounts are closed, or any number of things have happened to make my answers undeliverable. That is unfortunate, because I'm not certain if the people who took the time to pose a question will ever be able to see the answer.

For what it's worth, I'll post answers that come back as undeliverable here, in case the person asking the question happens by, and still needs a response and, in case their question and my answer contains information that may be helpful to anyone else, with a similar issue, happens to be passing by.

Educating The Grandchildren

Q. My daughter divorced early this year and has custody of her 2 boys....Currently, since she commutes to her job, my 6-year-old grandson spends most of the weekdays with me. However, she comes almost every day to my home to see him after work, and takes him with her 1 or 2 evenings a week and brings him back at 6:00 AM the next day. (We have one of those old-fashioned arragenments in which the grandparents are involved in helping raising the kids along with both parents.)

We had to make this arrangement since the school the child is supposed to attend is far away from my area of residency and before/after school care is more expensive than a private school. Unfortunately, we can't afford the tuition of the private school he is currently enrolled near my home; and the public school in my area will not enroll him since I don't have legal custody of my grandson.

Is there a way that I could obtain documents to allow my grandchild to enroll in my area's school without affecting the custody/visitation/child support arragenments currently in place? We don't know what to do... My daughter and former son-in-law are great parents.

Thank you for your forthcoming response.

A. Well, first of all, it sounds like you, your daughter, and ex-son-in-law are handling things in a very mature way, which is surprisingly rare in matrimonial matters, so let me congratulate you.

Now, as to your issue, this doesn't really seem to be a legal question, exactly. It's a bit difficult to formulate an answer because I'm not entirely clear about the ages of both grandchildren, or on the current living situation, or even the custodial arrangements (it sounds as if your daughter has custody, but that at least one of the grandchildren is living with you at least part of the time). But let's give this a shot.

In my experience, some school boards are willing to make exceptions for out-of-town students, for a variety of reasons. The place to start is usually with the Superintendent's office. You and your daughter should set up an appointment to see the Superintendent and explain the situation. In some cases, the Superintendent may have the power and authority to give you permission to enroll your grandchild even though the child technically resides out of district. In other cases, you may have to petition the school board itself for permission. (Each district has its own rules, as you might expect. Start with the school board office; they should point you in the right direction.)

If you take the time to get your facts in order and go into your meeting prepared, you should be able to prevail upon the school board, or the Superintendent. But, just in case, you should also check out what the appeals process is, in case you don't prevail. Ordinarily, there is a process in place so that you can file an appeal from an adverse decision. Be aware, though, that this can be a time-consuming process and, if it gets to the point where you would need a lawyer to handle an appeal, it might be less expensive in the long run to enroll in that private school.

Good luck.

Can I Get The Landlord To Hurry Up?

Q. A fire in the store above mine necessitated the closure of my dance studio due to water damage and the fact that it would take 4 to 6 months for building repairs. I notified the landlord that this cancels my lease (which was up in 2 more weeks) and I must seek space elsewhere. That was 2 weeks ago. He has not returned my $750 deposit plus interest I believe. How long must I wait ? Isn't there a statute as to how quickly he must return the money ?

A. Let's pump the brakes a little bit, my friend. You're telling me that two weeks ago, you told your landlord that, due to a fire above your place, you're leaving it two weeks early? And in that two weeks' time, you haven't gotten your security deposit back? I don't mean to be flippant, but really? This is your issue? That two weeks after a fire in your building, you don't have your security deposit back?

Okay, I know you're not looking for sarcasm, so here's an answer. In the case of a commercial lease, it is likely that the lease you signed contains all of the terms that apply to a situation like this, where an accident, or an Act of God, renders your portion of the commercial property unusable. Without seeing the lease, I am obviously in no position to tell you what it says, but I'm going to guess that it probably says that the landlord has 30 days to get your deposit back to you. It might also say the deposit must be returned "in a reasonable time."

As for your question about interest on your deposit, every State has different laws about what a landlord is supposed to do with a security. Since I don't know exactly where your business was located, I'm not sure which laws apply, but generally, landlords are required to deposit security deposits into interest bearing accounts, and to give you notice of the bank in which the account is located. (Again, this is different in every State.)

What I'm going to suggest is this: give the landlord another month. After all, there was just a fire in the building; he might have some things to attend to. If you haven't heard anything by then, send a nicely worded letter, by certified mail, following up on your request. I'm going to guess that, if you haven't had a response before then, you'll have a response after that.

Good luck, and be patient.

Can My Boss Say: "Here's Your Hat, What's Your Hurry?"

Q. Can your boss order you to step down from a position if you have no write ups? Also if you are a supervisor and you are salary [sic] can your boss order you to punch the clock? I've been to my human resource office several times but nothing has happened. I'm now feeling like my boss is trying to force me to quit. He brought in a guy about two weeks ago and told other employees that the guy was my replacement. I brushed it off but now that he has come to me and asked me to step down or be without a job, I'm concern about what my rights are. Thanks.

A. Well, I don't mean to be blunt, but if your boss is introducing the new guy around as your replacement, it seems pretty clear what your boss's intentions are. But that's not really your question.

Your question, which comes up all of the time (here, for instance), appears to deal with what we call "at-will employment." Basically, an "at-will" employee (and that's pretty much anyone who's working without a contract) is an employee only as long as the employer wishes you to be one. (There are, of course, exceptions to the "at-will doctrine," but it doesn't appear that any apply here.)

Simply put, in the absence of a contract of employment, the answers to your questions are pretty straightforward: Yes, your boss can ask you to step down from your supervisory position for any reason, or no reason at all, as long as it's not for a discriminatory reason (race, gender or religion are the big three). Yes, your boss can make you start punching the time clock. And yes, your boss can make you feel so uncomfortable -- for instance, by bringing in a new supervisor -- that you feel like quitting. (But quitting has ramifications when it comes time to collect unemployment. so that's probably not the play to make.)

What's your solution? There really isn't one, unless there are other factors at play that you haven't told me about. Essentially, your answer is to suck it up and carry on. But in today's market, if they're letting you keep your job, that's a plus, because it's always better to look for a new job while you're working at your old job.

The thing is, sometimes, having a job stinks. But it doesn't stink as badly as not having any job.

Good luck.

What Happens When "Operation Repo" Arrives At My Door?

Q. What happens if my car gets repossessed? Since you have experience, I was hoping you could give me some clues as to what you look out for. Please help me.

A. That's a rather cryptic question. What happens? They take your car. If you've ever seen that "reality" show on cable, that's what they do. Once you are in default on your loan (meaning late on your payments -- and even one is enough), it's generally accepted that the lender can come and take your car, any time and any where. Now, usually a creditor will work with you, but there's no guarantees that the creditor will. On top of that, once you get too far behind, they're not going to want to work with you at all.

Now, do you have any rights after they take the car? That depends on the laws in your state, and on your lender. The lender can either keep the car in satisfaction of your debt, or try to sell it (in what's called a "commercially reasonable manner") to offset what you owe. Then, if there's any difference, they can come after you for that amount. For example, if you owe $2500 and the lender sells the car for $1750, the lender can still come after you for $750, suing you in small claims court, for instance, for the balance. The lender is supposed to give you notice of what it's doing with the car, giving you the opportunity to buy it back, or to "redeem," which is, essentially, catching up on all your payments and covering the costs of the repossession.

The bottom line is, each case is different because each state, and each lender, is different.

Hope this is a hypothetical question.

"A Lawyer's Time And Advice Are His Stock In Trade"

Q. How much does a lawyer charge to look at a lease? I am trying to figure out what is important. I was hoping you might be able to give me some insight. Please help.

A. The simple answer to your question is: whatever the lawyer wants to charge. But the reality is that there's no one answer. Who's the attorney? Your friend? A guy you saw on TV? Someone you found in the phonebook?

What are you asking the lawyer to do? Proof it? See if there are any "traps"? Asking the lawyer to build in protections for you, as either a landlord or tenant? Each of these tasks is different, and would require a different level of work from the attorney.

The thing you have to remember about lawyers and their fees was best summarized by Abraham Lincoln:

"A lawyer's time and advice are his stock in trade." That means all the lawyer has to sell you is time, and advice. There's no other product, really. So if you're asking a lawyer to take a "quick look" at something, a $100 fee might be appropriate. If you're asking the lawyer to draft a new lease to protect you from an unsavory landlord, it might cost 5 or 10 times that.

Hope this helps.

Can I Buy My Canadian Dream House?

Q. I am in Quebec Canada so I hope you can just offer any advice that would be greatly appreciated.

I recently put in an offer on a house and my girlfriend and I have saved up money and we have not only our 5% down but we have our money for any and all of the costs to close the deal. Now here in Canada you need 20% or 25% to mortgage a house and because most people don’t have $30,000 or more there is an organization called cmhc/schl (Canadian Mortgage and Housing Corporation) which provides the rest of the money and then the bank can issue you the mortgage.

Now here is my predicament. I am on CSST (workers compensation) I had a bad accident at work and now have 2 herniated disks in my back. It has been almost a year I am on CSST and my specialist says it will take quite a bit of time to heal because first; when it comes to the spine nothing is simple and two; there is no operation for what I have.

Now the mortgage specialist I’m dealing with knew this in the beginning, I provided all my workers compensation paper and all the necessary papers. I ended up being denied because of the CSST so I was lucky enough to have another option offered by the bank. They asked for a co-signer AND a co-buyer which I was able to find in a family member. So now I have myself, my girlfriend and my co-signer/co-buyer and all the necessary money in the bank and so on, and guess what, we got denied again!?!

Now don't get me wrong, I am an extremely reasonable man but what I don’t get is with all that I have done in order to make them happy it was still not good enough, I understand they calculate risk and such but even though I still get 90% of my salary, I still make really good money. On top of that, CSST is always on time and can never go bankrupt and I know it's not an ideal source of income but I have no choice now. If I could I would work, but I have excruciating pain from the moment I wake up till I go to sleep. I cannot return to work anytime soon and I do not want to use the word discriminating but it sort of feels that way. The bank would not even put the amount of money I get on the paper work, they marked that I make a $1 a year! Heck people on social assistance get more money than that! I know you maybe thinking “well why not wait till you get better” but I cannot, first and foremost the law is changing in April and it will require people to have 10% for their down payment and second, I have no idea when I will be able to go back to work and I cannot stay in this bachelor apartment with my girlfriend for much longer.

Anyways I’m sorry for writing such a long letter but I needed to “talk” to someone, the stress is killing my back and I feel myself down spiraling into a depression keeping this all in and trying to put on a smile for my girlfriend. I just feel helpless right now and I would just like to have some advice and I really do appreciate the time you took to read this. Have yourself a good day and seriously I wish you happiness and health to you and your loved ones.

A. You’ve got a lot going on, and it’s not surprising that you’re feeling depressed and stressed out over everything. I’ll see if I can help.

As you point out, laws in Canada are often much different than they are in the United States, so you should take anything I say with a HUGE grain of salt. But it appears that you’ve been battling the discretion of a lender to decide to whom it wishes to lend money. Lenders are generally not required to give mortgages to just anyone (actually, part of the current world-wide financial crisis is a direct result of mortgage lenders disregarding common-sense lending practices, like ensuring that borrowers have the means to repay loans. But I digress.)

If your bank doesn’t believe that your workers’ compensation benefits are an adequate source of income (regardless of how regularly the payments are received), there is, most likely, nothing you can do about it. While I know that it would be wonderful to actually purchase a home, lenders like to see people who are gainfully employed, and likely to be so for the long-term. You being on disability – even though it’s not your fault – is not a positive factor when evaluating your loan application.

There are two things that occur to me. You could have your co-signer be the main person responsible for the loan (assuming that co-signer wants to take that responsibility) and you co-sign for that person, so that you are both on the mortgage, and on the title. Alternatively, you co-signor could purchase the house and then you can enter into a lease-purchase agreement with the co-signor (assuming that’s not contrary to Canadian law or your lender’s restrictions.) You might want to check with an attorney on this latter possibility.

I don’t believe that it’s impossible for you to get into that dream house of yours, but it will probably take some creative thinking on your part.

Good luck.

Can I Get My STBE Off My Business Lease?

This post spawned the following question:

Q. I am currently renting space for my business. My soon to be ex girlfriend is on the lease as well. Is there any way for me to have her name removed from the lease and I will continue to pay the rent on my own as I have always done? Is is necessary to rename my business and have the landlord provide a new lease with the new name?

A. I'm assuming from what you write that your soon-to-be-ex (let's call her your STBE) is not a partner in the business or otherwise connected. If she's not, you shouldn't have to worry about the business -- unless she's going to litigate with you over use of the name, or who gets the business, or she claims she is a part of the business, or a million different other things....wow, it gets complicated, doesn't it? But, for the sake of argument, let's assume it's your business, and she has no claim to it.

You can get her off the lease by asking the landlord to give you a new lease, with you (or the business, depending on how the lease is drafted) as the sole leasor. However, the landlord might not be inclined to do that because, as I mentioned in the post that spawned your question, the landlord has both you and your STBE on the lease, so he can go after either of you for rent.

For example, if you were having trouble making rent one month, he could go after your STBE. Of course, then she'd come after you for your share, and could even sue you for your share (depending on how ugly things were between you -- which is why it pays to play nice). From a legal perspective, it's better for the landlord to have two folks on the lease; he can collect from either.

However, if you can convince your landlord that you'll make good on the rent, and that there won't be any problems in the future (and maybe offer him additional security on the lease), he might be willing to take her off the lease and leave only you on it.

Of course, the parts of this scenario I don't know can complicate things. For instance, if she actually does have a piece of the business, and the lease is in the business's name, you might have to buy her out to get her off the lease and out of the business. Or, she should claim to be part of the business, even if she's not, which could also lead to litigation.

You definitely should have a landlord/tenant lawyer take a look at the lease. It would be worth a few bucks for an initial consult if you've got a complicated business/social thing going on. Good luck.

Wow, the mail box is full

Yeah, I know. I took a year off. But it's been a bad year. If you're interested, I'll explain my absence either here or here.

But you're not here for that personal crap. You've got questions. Let's see if we can get some answers for you.

The Wonderful World of Workers' Comp

Q. On November 3, 2006, I was in an accident while riding a volunteer ambulance late in the evening. I went to the hospital, had an xray done. The appropriate workmans comp people were contacted, and claim filed. The case worker contacted me and had an appointment set up for an orthopedist in the "group" A week later, I arrived at my appointment. The doctor pulled the sling off me, told me I didn't need it, that I was "fine" and "go to PT". Then he gave me exercises to do at home which was "crawling up the wall with my hand". I explained that I can't lift my arm, I have intense pain. But he dismissed me. I went to PT for over a month with no results. The clinicians were baffled when I told them I had no tests, no MRI's, nothing since the xray from the emergency room. I called my case manager after the 2nd appointment where I had gotten ZERO treatment and then was told to take 1800 milligrams of Advil "because your fat enough, you can handle it". I couldn't take it anymore. I demanded another doctor, which I did finally get. He treated me with medication and 2 cortisone shots within the first 5 minutes of the appointment. this went on for another few months, due to the process of workmans comp, they can't just go into surgery. This new doctor took 2 MRIs and I ended up in surgery on May 11, 2007. The surgery ended up being a full open repair. I had a massive full thickness tear as well as a fracture. I lost time from work, I lost time teaching, that I NEED in order to keep my certification. I know this doctor is a quack. His lax approach and refusal to even help me or bother to see what was wrong has me wondering.. Do I have a case?

A. Ah, yes. Workers’ Compensation Law – a very interesting and unique field of practice that very rarely makes any sense to folks – including attorneys – who don’t practice in the field regularly. In order to answer your question, I have to give you a little background so that the answer might make a little sense.

Workers’ Comp was designed to eliminate personal injury claims by employees against employers for injuries suffered at work. The theory was (and remains) that workers get injured all the time and if employers had to pay for personal injury claims in civil court, they might eventually become bankrupt because of all the lawsuits they might face. So the legislatures in each state came up with the workers’ comp law. Work-related injuries are considered part of the cost of doing business. The legislatures designed charts and schedules that have set dollar amounts for specific types of injuries so that employers can better insure against them and afford them as part of their operating costs. That’s because a jury can look at a terrible injury and, because they feel bad for the plaintiff, give a huge award. In workers’ comp, each injury is worth only so much money, no matter how you became injured, and no matter how sympathetic you might be.

In addition, in some (but not all) states, the employers get to control treatment of work-related injuries. The employers will send injured employees to doctors that the employer selects in order to 1) get the employee back to work sooner, rather than later, and 2) keep costs down. That’s because your family doctor knows you, will likely sympathize with you, and has very little incentive to get you back to work if you don’t want to go. That’s not the case with comp doctors. Their incentive is to treat you as necessary, with an eye towards getting you back to work if possible and as soon as possible. I don’t mean to suggest that the comp doctors are not treating you properly, completely, or with your best interests at heart. It’s just that comp doctors don’t have the same kind of personal connection with you that your family doctor has, so their treatment may seem less “warm and fuzzy.”

When you have a comp claim, you are entitled to receive all reasonable and necessary treatment to cure and alleviate the effects of your injuries. That doesn’t mean all of the treatment you might want; it means whatever the doctors say you need. If you don’t agree with what the doctors are suggesting, you can ask for a second opinion. Generally, however, the employers do not have to get you one. If the employer doesn’t, and you still want one, you can either file a motion with the Compensation Court asking for one, or go to your family doctor and get one. The risk of going to your family doctor is that, unless the employer says it’s okay, you are receiving what’s considered “unauthorized” treatment. Any bills for “unauthorized” treatment will likely be your responsibility.

It sounds as if you eventually did get the treatment you feel you needed after this accident, which is good. It also sounds as if you are frustrated over what you perceive to be a lack of care by the original authorized doctor, which is understandable. However, I’m not sure what claim you are looking to assert against the doctor. Are you asking about malpractice? I don’t see any, based on what you’ve written. I see indications of a doctor who had one opinion as to what you needed, followed by a course of treatment with another doctor that was different from what you were getting with the first. Doctors disagree all of the time, and that fact alone is generally not enough for any kind of civil claim. If the doctor actually and actively committed some “bad” act which increased or otherwise worsened your condition, you might – and I emphasize “might” – have a claim. But I don’t see that anywhere in what you’re telling me. On top of that, as an authorized comp doctor, there is an argument that he would be protected from a malpractice suit because he was treating for a work-related comp injury. (The argument might not work, but it’s out there.)

You should know that you still may have remedies in your comp claim. If you missed time from work as a direct result of the injuries, you may be entitled to temporary disability benefits. As a result of the surgeries, you may very well be entitled to permanent partial disability benefits. These are things you should discuss with a workers’ compensation attorney. If you don’t already have one, you should get one, discuss the facts with him or her, and see what your options are.

Good luck.

David Kendall

How Long Is That Warrant Going To Be Outstanding?

Q. I was wondering what the statute of limitations is on a Misdemeanor "writing a bad check" outstanding warrant from the state of New Jersey?

A. I just want to make sure I've got the question right. As I understand it, your question isn't about the statute on the offense of writing a bad check itself, but on a warrant issued for writing a bad check. By that, I assume you mean that you were either charged with or arrested for writing a bad check and failed to appear in court when they told you do. Needless to say, this is not a good thing. Judges tend to like it when you show up when you're supposed to, and they tend to get ticked off if you don't. As a result, when you decided not to show up, the judge probably issued a bench warrant for your arrest, and I'm guessing that this is what you're really asking me about.

As a general rule, a bench warrant does not expire. A judge ordinarily has to vacate it to make it go away. Once issued, the warrant get entered into the state's computers, and, usually, into the national database. That's what the cops are checking when they pull you over, by the way. Even before they step out of the car after they stop you, they've already run your license plate to see who owns the car and if the owner has any outstanding warrants. An outstanding warrant, even when you're pulled over for a traffic violation, by itself, is enough to hold you overnight until you can post bail on the warrant. Now, the court that issued the warrant will probably not try to actively enforce the warrant by looking for you, but it's in the system, and it's bound to catch up with you.

There's no way to know if the warrant will ever rise up and bite you in the butt. It might not show up, ever, or it could pop up when the police come to investigate the little fender-bender at the light, where someone hits you from behind. To me, it's not worth living with that kind of pressure hanging over your head.

You say it's a "misdemeanor" bad check. By that, I assume that you mean it is for a minimal amount, something under $200. Your best bet might be to contact the prosecutor in the town where the offense took place and work out a deal to pay the fine, pay off the check, and enter a plea in conjunction with vacating the warrant.

By the way, if you're really asking about when the statute expires for prosecuting the underlying charge for writing a bad check, your failure to appear essentially stops the clock from running on the time within which the State must prosecute you. Pretending it didn't happen doesn't make it go away; it just delays the inevitable.


Finally, if you have any doubts about your ability to handle this on your own, I urge you to contact an attorney and set out the facts for him or her. He or she may be able to help you resolve the matter with minimal exposure to fines and jail-time (depending on the amount of the check, and the length of time the
warrant has been outstanding.)

Good luck.

David Kendall

That "Million Dollar Suit" That Nobody Will Take

Q. I work for the post office and I have a case of discrimination that in the private sector would be worth millions. Why can't I find any lawyer that would take this case without a very large retainer? This case, in my opinion, would be very easy to win.


A. Um....dude, you've got to give me a little more than that. I can come up with answers on just about any topic, but you've got to give me something to work with. Discrimination in the post office -- that's just not enough. Did they discriminate against you because you're black? White? Old? Young? A Woman? A Muslim? A member of the NRA? These little details matter.

And you say the lawyers won't take it without a retainer? So I'm guessing they will take it if you pay them a retainer. Let's think about that for a moment; you're wondering why an attorney, who's got nothing to sell but his time and advice, wants some money from you before he or she takes the case? (If you don't get it yet, read that last sentence again until you do. Seriously.)

In some cases, attorneys do take cases on a contingency basis. Those are usually personal injury cases, with documented, objective injuries that usually lead to guaranteed paydays. Discrimination cases are a different animal, no matter what kind of discrimination is alleged. You never know what can happen because juries are notoriously unpredictable; no one can truly predict what they are going to do. You can make an educated guess, but you can never know. That's why an attorney will ask for a retainer -- no one wants to spend a lot of time, effort, and money on a case that may or may not be a winner.

You may believe your case is a winner -- but an experienced attorney may have a better feel for how the case will play before a jury (or if it will play at all.) Without knowing anything more about your case than what you've told me, I'd trust the opinions of the attorneys you've already consulted: you may have a case, but it'll cost you a retainer to prosecute it.

Good luck.

David Kendall