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In this economy, you may think twice before consulting an attorney to avoid the fees. Sometimes that’s a good idea. Sometimes it’s not and can cost you lots more in future litigation. Here are some basic guidelines relating to two important issues – contracts and insurance - to help decide when to use an attorney and how to use them efficiently.
Contracts.

A good contract is the basis for any smooth business relationship. Contracts are essential. Not only do they clarify roles, responsibilities and ownership issues, they limit potential liability. Attorneys can help you draw up a contract that covers all your bases, but if you want to use your attorney efficiently, do some homework first.

Sit down and in your own words define the relationship you’re setting up and describe those who you’re setting it up with. Anticipate industry-specific issues that affect your risks and liabilities in the contract. Point out best and worst-case scenarios that affect the success of your product and how that will affect the contracted parties. Address ownership issues. Now set up a meeting with your lawyer.

You may think that signing a contract is a simple proposition. Just read what it says. Wrong! It’s not only what a contract says, but rather what it doesn’t say that matters. A contract can be deliberately written to be ambiguous and open to various interpretations, which are not always in your favor. Often, you are so personally involved in the contract negotiations – agreeing to amendments, changing clauses day by day – that you feel that after all the discussion, it MUST be right. Before you sign, have an attorney look at it. What you gain from an objective eye is far greater than what you pay in fees.

You can add protective steps to your contracts, which may help in cases that lead to litigation. Include a provision in contracts that states that if you need to sue, legal fees are recoverable for non-performance or payment. You will probably have to include a reciprocal clause for the other party. You could also include a dispute resolution clause that specifies the use of binding arbitration. You can even specify a mutually agreed upon arbitrator in advance.

Insurance

Whether you’re buying or renewing insurance – be wary!

Don’t be intimidated by complicated language. Ask all the questions you need to thoroughly understand your policy. If your policy is just incomprehensible, ask your agent to suggest a “plain language” policy.

Legally, any renewal is considered a new contract. Don’t assume you are getting the same coverage! Read the renewal policy carefully. Ask your agent to confirm in writing whether there are any changes in the renewed policy, and, if so, then what are they so that you are not surprised after a loss.

If a claim is filed against you, immediately notify your insurance company and agent by certified letter, even if you don’t think you’re covered. This is your responsibility. Failure to notify your insurer of an insurance claim is a cause for non-payment of your claim.

If your insurance company or broker denies claim coverage, contact an attorney. Don’t try to negotiate on your own. It is our experience that insurance companies deny responsibility too frequently. An initial denial of your claim my simply be a negotiating tactic.

If you have a dispute with your insurance company, consult your policy to find out how much time you have to start a lawsuit and contact an attorney well before that time expires.

Remember, the money you spend now for legal fees to prevent future problems is a drop in the bucket compared to the fees you will pay in future litigation. If you use your attorney wisely, it could be one of the best investments you make.

About the Author

Betsy Sweetser is a partner in complex non-personal injury civil litigation and appellate work with the law firm Pellettieri, Rabstein and Altman at 100 Nassau Park Blvd., Princeton, NJ. Phone: 609-520-0900; http://www.pralaw.com

Prove Up of the Claim

To recover on a promissory note the Plaintiff (lender) must prove existence of the note.

To recover on a promissory note, the plaintiff must prove:

(1) the existence of the note in question;

(2) that the party sued signed the note;

(3) that the plaintiff is the owner or holder of the note in due course; and
(4) that a certain balance is due and owing on the note.

In a foreclosure, if a default judgment is entered you can file a “Motion to Set Aside Foreclosure & Decree and Motion for New Trial.

This motion seeks relief from the judgment of foreclosure on the ground that the lenders failure to produce the original of the promissory note is newly discovered evidence justifying a new trial.

In the new trial you demand discovery of the “holder in due course” of the “ORIGINAL” promissory note. The plaintiff must produce the original promissory note.

Trial court is in error when it does not proceed to take testimony before it enters a default judgment in a foreclosure for the plaintiff; the unsworn statement of plaintiff’s attorney can not support default judgment rendered.

In the case of mortgage foreclosures, prove up of the claim requires presentment of the “original” promissory note and general account and ledger statement. Claim of damages, to be admissible as evidence, must incorporate records such as a general ledger and accounting of an alleged unpaid promissory note, the person responsible for preparing and maintaining the account general ledger must provide a complete accounting which must be sworn to and dated by the person who maintained the ledger.

Supporting Case Law

Where the complaining party cannot prove the existence of the note, then there is no note.

See Pacific Concrete F.C.U. V. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980),

GE Capital Hawaii, Inc. v. Yonenaka 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001),

Fooks v. Norwich Housing Authority 28 Conn. L. Rptr. 371, (Conn. Super.2000), and

Town of Brookfield v. Candlewood Shores Estates, Inc. 513 A.2d 1218, 201 Conn.1 (1986). See also Solon v. Godbole, 163 Ill. App. 3d 845, 114 Ill. Dec. 890, 516 N. E.2d 1045 (3Dist. 1987).

Siwooganock Bank in Lancaster NH, in alleged foreclosure suit, failed or refused to produce the actual note which Siwooganock alleges Eva J. Lovejoy owed.
To recover on a promissory note, the plaintiff must prove:

(1) the existence of the note in question;

(2) that the party sued signed the note;

(3) that the plaintiff is the owner or holder of the note; and

(4) that a certain balance is due and owing on the note. See In Re: SMS Financial LLC. v. Abco Homes, Inc. No.98-50117 February 18, 1999 (5th Circuit Court of Appeals.)

Volume 29 of the New Jersey Practice Series, Chapter 10 Section 123, page 566, emphatically states, “…; and no part payments should be made on the bond or note unless the person to whom payment is made is able to produce the bond or note and the part payments are endorsed thereon. It would seem that the mortgagor would normally have a Common law right to demand production or surrender of the bond or note and mortgage, as the case may be.

See Restatement, Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469, in Carnegie Bank v, Shalleck 256 N.J. Super 23 (App. Div 1992), the Appellate Division held, “When the underlying mortgage is evidenced by an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3-104, the holder of the instrument shall be afforded all the rights and protections provided a holder in due course pursuant to N.J.S. 12A:3-302″

Since no one is able to produce the “instrument” there is no competent evidence before the Court that any party is the holder of the alleged note or the true holder in due course. New Jersey common law dictates that the plaintiff prove the existence of the alleged note in question, prove that the party sued signed the alleged note, prove that the plaintiff is the owner and holder of the alleged note, and prove that certain balance is due and owing on any alleged note. Federal Circuit Courts have ruled that the only way to prove the perfection of any security is by actual possession of the security.

Supporting Case Law

Unequivocally the Court’s rule is that in order to prove the “instrument”, possession is mandatory.

See Matter of Staff Mortgage. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977). “Under the Uniform Commercial Code, the only notice sufficient to inform all interested parties that a security interest in instruments has been perfected is actual possession by the secured party, his agent or bailee.” Bankruptcy Courts have followed the Uniform Commercial Code.

In Re Investors & Lenders, Ltd. 165 B.R. 389 (Bankruptcy.D.N.J.1994), “Under the New Jersey Uniform Commercial Code (NJUCC), promissory note is “instrument,” security interest in which must be perfected by possession.

Find out if you are a Victim of Predatory Lending Practices

Audit your mortgage closing documents to find possible Predatory Lending Practices, mortgage broker fraud and title violations.

Mortgage lenders can trick homeowners into giving up their homes. You may be able to recover TILA violation fines and possibly void the lenders security interest in the property.

In order to find predatory lending violations and lender fraud you will have to gather and assemble your loan and closing documents and put them in order.

Required Documents for your Audit

List of loan paperwork for audit

*anything that was given to you at the time of signing the loan

*Promissory Note (very important)

*Mortgage or Deed of Trust (very important)

*Application for the loan, if available

*Good Faith Estimate (very important)

*Settlement Statement (very important)

*Right to Cancel/Right to Rescission (very important)

Disclosures:

*HUD 1 Statement

*TILA Disclosures (very important)

*RESPA Servicing Disclosures

*Any and all disclosures (very important)

A copy of the current billing statement.

A copy of any notifications from the lender or other
party of a change in where the borrower is to send the
payments. This may be because the lender sold the note
(a new assignee), or sold the rights to collecting the payments (a new servicer).

A copy of any default notices, acceleration papers, or
foreclosure paperwork.

A copy of any and all court paperwork if the property is in
foreclosure or there is any court process ongoing that involves this property. If you do not have this paperwork, it must be obtained from the court files.

The Audit

What are you looking for?

Now you can audit your closing documents and look for TILA, HOEPA and RESPA violations.

If the answer to any of the following questions is “yes,”
You are most likely a victim of predatory lending practices and may be able to void the mortgage and apply 100% of your payments to principal. And, you may also be able to recover money damages.

Such violations can be used as a defense in a mortgage foreclosure.

1. Have you repeatedly refinanced your loan? Was the last refinance within the last 3 years? (A common predatory practice is “flipping,” which involves “repeatedly refinancing a mortgage loan without benefit to the borrower, in order to profit from high origination fees, closing costs, points, prepayment penalties and other charges, steadily eroding the borrower’s equity in his or her home.”).

2. Did you increase rather than lower your rate upon refinancing?

3. Are you paying an interest rate in excess of 9.5%?

4. Was the loan obtained to pay for home improvement work that was not done properly, or even at all?

5. Have you had problems with the mortgage company regarding untimely posting of monthly payments? Sudden increases in payments? Adding amounts to your balance for insurance, “property preservation,” or other “advances”? Does your principal balance never seem to go down?

6. Were you charged high closing costs (points and fees) on the mortgage?

7. Did the terms of the mortgage change to your detriment at the last minute before the closing?

8. Did the lender pay money to your mortgage broker? (Look on your HUD-1 Settlement Statement for a “premium” or yield spread premium “YSP” or Paid outside closing “POC”)

9. If you have an adjustable rate mortgage, were any adjustments done improperly? Can you even tell if the adjustments were correct or not?

10. Does your loan contain a prepayment penalty?

11. Do you believe you were treated unfairly by your mortgage company? Has correspondence with the mortgage company gone unanswered? (Mortgage companies have a statutory obligation to respond to complaints and requests for explanations of accounts. Often, they don’t. Each failure may entitle you to $1,000. If your claim against the mortgage company may exceed the number of monthly payments you allegedly missed, the mortgage company may not be able to prove that you are in default.)

12. Did all collection letters sent to you by debt collectors comply with the Fair Debt Collection Practices Act? (Up to $1,000 more if they did not.)

13. Did you (or anyone else who has an ownership interest in and lives in the house) receive a “notice of right to cancel” that was not completely filled out?

14. Did you receive your copy of the loan documents at the closing (as opposed to being sent to you later)?

15. Did you sign a document at the closing stating that you were not canceling?

16. Did the closing occur by mail, or at your home, or in another city?

The following is an example of some other TILA violations you may find in your closing documents.

Over-escrowing

Junk charges
(i.e. yield spread premiums and service release fees)

Payment of compensation to mortgage brokers and originators by lenders

Unauthorized servicing charges
(i.e. the imposition of payoff and recording charges)

Improper adjustments of interest on adjustable rate mortgages

Upselling

Overages

Referral fees to mortgage originators.
(i.e. a lender who pays a mortgage broker secret compensation may face liability for inducing the broker to breach his fiduciary or contractual duties, fraud, or commercial bribery)

Failure to disclose the circumstances under which private mortgage insurance (”PMI”) may be terminated.

Underdisclosure of the cost of credit

Excessive escrow deposits

Breach of Fiduciary Duty

You may also find breach of contract claims.

Lenders Profit by Foreclosure

There is a common assumption (among judges, borrowers, and the public) that mortgage companies do not desire to foreclose and acquire real estate. This assumption is no longer well founded.

There are an increasing number of “scavengers” that buy bad debts, including mortgages, for a fraction of face value and attempt to enforce them. Such entities profit by foreclosure. “Mortgage sources confide that some unscrupulous lenders are purposely allowing certain borrowers to fall deeper into a financial hole from which they can’t escape. Why? Because it pushes these consumers into foreclosure, whereupon the lender grabs the house and sells it at a profit.

Kenneth M. DeLashmutt
“Predatory Lending Defense Specialist”

email: educationcenter2000@cox.net

website: http://www.educationcenter2000.com

You have permission to publish this article electronically or in print, free of charge, as long as the bylines are included. A courtesy copy of your publication would be appreciated.

© Kenneth M DeLashmutt

Mr. Kenneth M. DeLashmutt is a recognized Predatory Lending Defense Specialist and an authority on the subject of predatory lending practices, foreclosure defense, consumer protection and debtor’s rights. He has more than 10 years experience in the area of consumer protection related to predatory mortgage lending practices and debt resolution.

email: bankfraud@cox.net
website: http://www.mortgage-home-loan-bank-fraud.com

Every home buyer needs an attorney BEFORE they write any offers on property. Why? Well, you are entering into a binding contract with a home seller for starters and any time you enter into a contract it makes sense to have legal counsel represent you. Many may think they don’t need an attorney to write an offer—and that is where a LOT of home buyers make the first mistake. Here is just one area about purchasing a home you need to think about—a clear and marketable title on the property. That’s right, although title examination is an extremely boring topic it carries massive weight in the overall investment satisfaction process. Here are a few examples of why title examination performed by YOUR attorney is so important:

A house may seem like the perfect investment in appearance and location but there may be hidden defects that diminish its value. For example, there may be a right-of-way over the land that permits someone to drive across the property or zoning regulations that allow factories and other commercial property to be built close by. There may be other restrictions affecting the use or ownership of the property like back taxes, mechanics liens, or defects in the physical property itself. There are a wide variety of title issues to consider that could impact the property and only your attorney, the one that represents you, can perform the title examination that represents your best interests—not the seller, not the lender, yours. You need to answer a few questions:

1. Are there any serious defects with the property? Have you gotten a seller disclosure form from seller before your sign and submit an offer?

2. Do you know exactly what property comes with the home both real and personal?

3. What zoning regulations affect the property?

4. Are there any easements or restrictions on the property?

5. How are current real estate taxes and current assessments to be prorated?

6. Are there mechanic liens or other monetary liens against the property?

7. Is the seller to furnish a marketable title?

8. What kind of deed must the seller give?

9. What type of title evidence is to be furnished and who pays for it?

10. What inspections should be made to the property and who pays for them?

11. Has your attorney approved your purchase offer before you sign it?

12. Have you checked with your state department of commerce regarding seller disclosure forms? Have you contacted the state bar association for a referralto a real estate attorney in your area?

The list goes on and on why a home buyer needs an attorney. Don’t be penny wise and pound-foolish. Once you have signed an offer and it is accepted by a seller, there is little an attorney can do to help you. The best time to see a lawyer is BEFORE you sign anything! This article is not intended give legal advice but it is intended to stress the importance of having a qualified real estate attorney represent you before, during and after a real estate transaction.

Want some advice? Go to our website, go to the Freebies section and download the Ebook 101 Tips Agents Won’t Tell Home Buyers or Sellers—it will help you represent yourself more intelligently and it’s free. Enjoy! Jim hart

Copyright © 2006
James W. Hart, IV
All Rights reserved

SMART BOOKS: http://www.smart67.com
FREE DOWNLOADS: We have a variety of high quality, problem solving EBOOKs you can downloaded directly for free at Smart Books. We don’t hyper-advertise at you either.
MEDIA INTERVIEWS Yes-See Bio for booking information

Fish do indeed perceive color. Every fly fisher knows that or ought to know that. Like humans, the retina of a fish have rods and cones. Cones are used in the day and rods at night. Color vision evolved to help fish identify potential food. In the environment of the fish, the background will either be the bottom, the water itself, or if looking up for food it could be the sky. The bottom is normally tannish olive to green. When looking across the water, the background appears pale silver blue. But if the water is off color due to algae or high water one must take that into consideration as well. Skylight becomes more important at dusk and dawn when it contains more reds.

Thus for opportunistically feeding game fish, flies with bright or contrasting colors and/or a lot of flash will make them stand out against the above mentioned backgrounds. The Mickey Finn, tied with yellow and red, and a silver body is one of the most effective attractor patterns. As for dry fly attractors , the Royal Wulff is still hard to beat, with its red and peacock body and white wings. Black flies, because of their strong silhouette also are easy for fish to spot. Let’s not forget patterns that contain strands of flashabou or other tinsel that reflect light when stripped or while drifting through the current are easy for fish to spot.

The fly fisherman also must remember that color behaves differently in water that it does when seen in the air. Water is denser, and the colors are diffused quicker. Cloudy days where there is less overall light will offer less visibility, and colors will disappear quicker in the depths of the water. And the clarity of water obviously greatly effects this as well. This is important in fly selection because certain colors travel farther in low light than others. Red is the first color to disappear, usually at about 15 feet in clear water, followed by orange and then yellow. Blues and greens are visible to the fish as long as there is light. Yet silver and white will be brighter.

So while the Mickey Finn is obviously a great choice as an attractor fly, it would not be as good a choice in murky water or if fished deep. A better attractor might be a white Woolly Bugger or White Marabou Muddler.

Color is also important to remember when matching the hatch. Since fish use vision as the deciding factor to strike, one’s offering must be the correct color. However, very small differences in hue seem to not be much of a factor as most insects will vary slightly in color as well. But if the intensity of color the artificial fly has can be a factor. If the artificial is more intense than the natural it is more likely to catch fish. Why this seems to work is somewhat a mystery. It is understood that fish see deeper into the ultraviolet range than humans, so perhaps they are just seeing something we don’t. It could also be due to the effect water has on colors. Perhaps we’ll never know, but like many things in fishing, why something works is not as important as just knowing that it does work.

While color is probably not the most important factor in a fish striking a fly. The above considerations are nevertheless a good thing to have in the back of your fly fishing mind.

Cameron Larsen is a retired commericial fly tier and fly fishing guide. He now operates The Big Y Fly Co. at http://www.bigyflyco.com.

info@bigyflyco.com

The number of people riding motorcycles has been steadily
increasing for the past 10 years, and accordingly the number of
motorcycle accident casualties and fatalities has also been
rising.

Motorcyclists are extremely vulnerable compared to car drivers,
and are 16 times more likely to suffer death or serious injury
on the roads. There were 6,361 serious personal injury
motorcycle accidents in 1999, with 547 motorcyclists killed. The
number of motorcycle accident fatalities has risen in recent
years, up to 602 to 2002.

When are motorcycle accidents most likely to occur? Most
motorcycle accidents occur in the spring and summer months, when
thousands of fair-weather riders dust off their bikes and take
to the roads. July has the highest motorcycle accident casualty
rate, with 2,876 motorcycling casualties in 1999, followed
closely by August, June and May.

Motorcycle accidents follow the same pattern of occurrence as
car accidents with regard to the most likely day and time for
them to happen. Friday is the most likely day for a motorcycle
accident to occur, probably owing to all motorists driving
faster and being careless in an attempt to get home faster.

Rush hour poses the greatest risk to motorcyclists, with 7-9 am
and 4-6 pm being peaks for motorcycle accidents on weekdays,
whereas at weekends there is a more equal spread of motorcycle
accidents across the whole day.

Where are motorcycle accidents most likely to occur? London is
the place where most motorcycle accidents occur in the UK, with
accident records showing it as having the greatest number of
motorcycle accident casualties who have suffered serious or
fatal injury, as well as the highest number of casualties with
slight injuries.

In an international study, Eire was found as being by far the
most dangerous place for motorcyclists, with 28 fatalities per
10,000 bikers.

Motorcycle accidents are most likely to occur in built up areas,
which account for around 72% of casualties. However, these
accidents are not usually as severe as those which happen on non
built up roads, which see 60% of motorcycle accident fatalities.
Single carriageway A - roads are the most dangerous for
motorcyclists due to a mix of factors, such as sharp bends,
unexpected hazards, and higher speed limits than in built up
areas.

How do most motorcycle accidents occur? In rural areas, a
motorcycle accident is more likely to be the fault of the rider,
whereas in built up areas, other road users are more often to
blame. For example, London statistics show that 60% of
motorcycle accidents were caused by car drivers and pedestrians,
whereas Cheshire accident records show that 67% of motorcycle
accidents were caused by rider error.

When the accident is the fault of the rider, it is often caused
by excess speed. Taking bends too fast causes around 15% of all
motorcycle accidents, and the group of bikers who most
frequently crash in such a manner are 26-30 year olds on sports
bikes, riding for pleasure. Overtaking accidents on rural roads
also account for a large proportion of motorcycle accidents
where the rider is at fault.

When the motorcycle accident is the fault of another driver, the
most common reason for it is that the motorcyclist was not seen
by person who caused the accident. These are known as “smidsy”
accidents, which stands for “sorry mate, I didn’t see you”, and
a campaign to alert car drivers to smidsy accident blackspots
has been running in South Gloucestershire to help reduce this
type of accident.

Right of way violations that result in a motorcycle accident
generally occur at junctions, and over 80% of them are found to
be caused by the other road user. Drivers failing to notice
motorcyclists, misjudging their speed, and having their view
restricted by road furniture are the most common causes of right
of way violations.

What to do if injured in a motorcycle accident If you are
injured in a motorcycle accident that was not your fault, you
may well be able to make an accident compensation claim. It is
best to take advantage of any free legal advice offered by
reputable personal injury firms so you can make an informed
decision of whether to proceed.

http://www.youclaim.co.uk

If you had an accident at work, its consequences can get very complicated. A work injury claim can help if it disables and makes you less useful as an employee to the company. The recovery takes time and your co-workers can react in different ways when they have more work to do because of your health problems.

They may be unhappy with you slowing their work or they may think that you’re practically being lazy and your injury is just an excuse so you needn’t work harder.
So your situation at work gets worse, even though it’s not your fault that you’re suffering from an accident.

Accidents do occur and you shouldn’t be punished for it. The injury may result in smaller earnings, you can be demoted, transferred to other tasks or lose a future chance of promotion.

Not to mention that one day you may hear from your boss, the time has come for you depart from the company and suddenly you are left with nothing.

Are You Going To Get Sacked?

On the other hand, you realise you can make a work injury claim. But you also think about it not being fair on the company and could jeopardise your relationship within. However a work accident claim can solve many issues brought to hand. Such as stating the obvious financial, the reason why we go to work. To get paid!

The injury assessment and medical report, once obtained from a medical specialist will determine the worth of your compensation claim. It could also bring to light areas at work that are dangerous to work and will help the company to improve and prevent further accident injuries.

It may also prove that your injury is more serious than your co-workers and bosses think. If the accident was not your fault, your company should bear all the consequences, as they haven’t obeyed the Health & Safety Regulations.

A workplace accident claim can also compensate for many personal problems following your injury at work - because we can’t forget that your life doesn’t end at work as it affects your everyday life, both personal and social.

I Had An Accident At Work - What Should I Do?

There are certain procedures and things you should do if you want to make a compensation claim for a workplace injury. At the very beginning, your injury should be recorded in the company’s accident book. If your firm has more than 10 employees, the presence of such book is required by law.

If for some reason the accident book is not available, you should advise your boss with a description of the accident and any injuries sustained. If there were any witnesses to the accident, they should add their knowledge of detail to the record.

You should also be asked to write down a detailed version of the entire situation - it’s good to prepare it as soon as possible, so you won’t forget anything and you will have it ready for any further proceedings. If you can, take photos of the workplace area plus any machines that were involved.

Then you should visit your doctor, so he or she could make a medical entry concerning your injury. If the injury is serious enough to make you unable to work, you should organise your statutory sick pay with your employer. It could also be useful for your accident injury claim to at least recover your earnings.

Of course, if you want to claim your compensation, the best you can do is to contact an accident solicitor, who will advise and guide you through the process of making a claim. Quality accident solicitor’s services are free, based on a ‘No Win No Fee’ policy, which means that regardless of the claim’s final result, you don’t pay anything.

On the other hand if you win, you get 100% of your workplace injury compensation. If you have any questions or doubts about proceeding you should contact one today! But can you see any reason why you shouldn’t use a professional and a 100% free based service that can bring you compensation for your accident at work?

It’s easy to make a work injury claim, if you know how. Learn the 12 revolutions of the new accident claim culture at http://www.compensationsecrets.co.uk/work-injury-claim.html and get a free assessment.

A number of notable Texas traffic and driving laws intended to improve safety on the roads and drivers education knowingness go into effect on Sep 1.

Drivers under the age of Drivers will nowadays have a harder time getting traffic violations done away with from their drivers. SB 1005 provides that if a driver younger than 25 years of age commits a traffic offense classified as a moving violation, the judge must demand the driver to complete a classroom based or online defensive driving course. In addition, if the driver holds a provisional driver license - in other words, is under motor vehicle operators years of age - they must submit to a Texas Department of Public Safety road test in addition to taking an offline or online defensive driving course. Failure by the driver to meet this requirement will result in a final conviction for that traffic offense.

Proof of insurance will be enforced through the new Texas law SB 1670. This law demands the Dept. of Insurance, in conjunction with Texas Dept. of Transportation and other agencies, to constitute a substantiation program for automobile insurance in order to try and scale down the number of uninsured motor vehicle operators.

SB 1257 disallows use of wireless communications gear (including cell telephones) for the first six months after adolescents get their driver licenses. The bill also prohibits passenger bus automobile operators transferring minors from using wireless communications devices, except in emergencies or when the vehicle is stopped. Use of wireless devices has become omnipresent and is under suspicion of inducing accidents.

Many of the items handled by these laws are discussed in the available Texas defensive driving courses provided online and in classroom settings. Prices might vary for drivers safety courses but the minimum they can be by law in the state of Texas is $25.

About the Author

Cindy Cashman operates Official Defensive Driving where traffic tickets can be eliminated through a defensive driving online course. Go to http://www.OfficialDefensiveDriving.com to Save the time, money and hassle of attending classroom based defensive driving classes.

An accident is, in most cases, an event that arises from a careless act. It can result in physical and emotional injury. Accidents occur mostly on roads involving motor vehicles and can result in serious injury to the parties involved. An accident lawyer provides legal services to the injured persons in these circumstances.

Using his training and experience, an accident lawyer assesses the situation and prepares medical claims on behalf of the injured claimant. The lawyer also follows up on the claims to ensure that the claims are settled as quickly as possible. Lawyers in Virginia who offer their legal advice and services primarily to accident victims are referred to as Virginia accident lawyers.

With the increase in the number of accidents, the laws guarding the rights of the affected parties have also increased. This puts additional power and responsibility on an accident lawyer in terms of providing a wide range of personal-injury-related legal support and services. When you have been involved in an accident, have experienced an injury or loss from medical carelessness, or have been hurt from personal injury from a faulty product, an advisable option would be to consult an accident lawyer who can help with the legal ramifications by offering expert legal advice on how to seek due compensation for the particular injury.

For your accident lawyer to offer you efficient service, it is imperative to provide him with complete and correct details pertaining to the accident. The important information would be the name of the driver, his or her date of birth, telephone number, license number, insurance company, and insurance policy number. An accident lawyer needs to have this information together with full knowledge of the laws of the state regarding vehicular accidents to ensure that proper benefits and compensation are secured for the client. If an accident occurs in the state of Virginia, you have to consult a lawyer to protect your legal rights. There are help lines that enable you to consult a lawyer quickly and free of charge.

A will is a legal document that contains a declaration stating how to distribute a person’s possessions after his death. It declares who should own belongings and assets after death of the testator, i.e. the person whose will is being drafted. Using will writing services is a safe and secure way of ensuring stability of loved ones after death.

It is possible to self-draft a will in front of adult witnesses. However, this is not recommended, as it may not be considered legal in several states. Will writing services are an easy and legal option. If no will is present, the government is entitled with the decision of property distribution. This could result in personal property being declared as state property.

Hiring will writing services make certain that the will is applicable and legal. This avoids unpleasant events of resentful relatives contesting the will. This is a common phenomenon in case there is no will or if the will has been written at home without legal approval. Appointing will writing services help ensure that peoples’ wishes are carried out, which makes life simple and easy for heirs.

Most testators appoint will writing services in case they want to exclude family members from being heirs. This could be a result of divorce and remarriage. This practice is effective in avoiding litigation and unpleasantness. These services legalize the distribution process and also draft clauses for particular inheritance of sentimental property, charitable gifts and undisclosed assets.

Apart from legalizing inheritance clauses, these services are used to plan many other events that occur after death. This includes distribution and guardianship matters incase children are minors. Trust provisions for children and legalizing affidavits are also looked into. Debt forgiveness, pet guardianship and common disaster clauses are all included in a will.

Costs: The Ignored Remedy

When Canadian taxpayers are charged with criminal offences such as evasion: §239(1)(d); or false reporting: §239(1)(a) under the Income Tax Act (“ITA”); they need skilled legal defence counsel to defend them and protect their interests.

While the process is unquestionably traumatic for anyone charged, it is even more so, if the taxpayer happens to be innocent.

The Canadian Charter of Rights and Freedoms guarantees that, “§11. Any person charged with an offence has the right… d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

Having a right, however, is not the same as exercising that right. Unless, and until, a taxpayer fights for their rights the presumption of innocence will do them little good; the proverb that “he who fails to plan, plans to fail” has never been truer than in criminal litigation.

While exoneration will be a welcome result for any accused, that result will prove insufficient compensation for enduring such a horrific experience.

An innocent taxpayer charged with such offences potentially can recover more, if they structure their affairs properly.

By being able to prove innocence, from the outset, with objective independent evidence provides an accused with a means to potentially recover some part of their economic expenditures – once the charges are dismissed.

Possible Remedies

There are two (2) remedies, which ordinarily can result from unjust criminal charges: a lawsuit against the Crown for the tort of malicious prosecution and an award of costs (e.g., under §24(1) of the Charter).

Malicious Prosecution

Irrespective of whether an acquitted accused may have such a claim, any detailed examination of this topic is beyond the scope of this article. Suffice it to say that such lawsuits are expensive, lengthy and difficult to win.

Although the Crown is not entirely immune from such legal proceedings, the cases in which a plaintiff will be able to meet all four criteria necessary to succeed, will be rare: Nelles v. Ontario, [1989] 2 S.C.R. 170 Lamer, J. and Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9 per Iacobucci and Binnie, JJ.

Costs – Civil Cases

Typically costs are awarded by civil courts to a successful party. Costs awards can cover both legal fees and various out-of-pocket expenses.

What percentage of a successful litigant’s expenses are recoverable will be discretionary with the court; depending on a number of factors unique to each case. Orders for costs can range from zero to one hundred percent (100%).

A particular award will usually cover only a portion of legal fees paid by the successful party and a percentage their out-of-pocket expenses.

In civil matters costs normally follow the cause; that is, a successful party will get some of their costs back from the other party, or parties.

An award of two-thirds of the actual amounts expended is routine, but if unsuccessful party’s conduct warrants it, a higher percentage of recover may be ordered by the judge.

Costs – Criminal Cases

In the majority of criminal cases resulting in an acquittal the accused will not be entitled to costs: R. v. M. (C.A.), [1996] 1 S.C.R. 500, Lamer, C.J. at §97 quoting Berry v. British Transport Commission, [1962] 1 Q.B. 306 (Eng. C.A.), at p. 326, per Devlin L.C.J.

The court does have discretionary authority to grant a request for costs, in appropriate circumstances: R. v. M. (C.A.), supra at §97; both in summary conviction cases: R. v. Trask, [1987] 2 S.C.R. 304 (costs denied); and in indictable cases: Olan v. The Queen, [1978] 2 S.C.R. 1175 (costs allowed).

The Standard

For a court to exercise its discretionary authority in favour of the applicant (i.e., an accused making the request) there must be a finding of “oppressive or improper conduct” against the Crown, something that makes the case remarkable: Trask, supra per McIntyre, J. at §7.

This remains true even if the Crown withdraws the charges, provided there exists “abuse or some other flagrant impropriety on the part of the Crown…”: R. v. Fach, Docket C41070, 2004-11-12 (Ont. C.A.)

Absent a finding, in fact or law, of such abuse by the Crown costs will be denied: R. v. Morton, Docket C41069, 2004-11-12 (Ont. C.A.)

It will be up the court to determine whether, in all of the circumstances, there is anything ‘remarkable’ about the defendant’s case, or if there is any ‘oppressive or improper conduct’ by the Crown to justify an award of costs: Trask, supra at pp. 307-8.

Awards Have Been Made

An award of costs was made against the Crown [Canada Revenue Agency (“CRA”)] by the Ontario Court, General Division in R. v. Saplys [1999] O.J. No. 393. In granting a stay of proceedings, under §24(1) of the Charter, the court held that CRA’s investigation was so unfair as to contravene fundamental notions of justice. To allow it to proceed would undermine the integrity of the justice system and compromised the accused’s right to a fair trial.

In another unreported case in the Superior Court of Justice (Ontario), the judge gave an order under §24(2) of the Charter excluding evidence, plus an award of C$160,000.00 for costs. CRA has appealed.

What About Other Cases?

This is where the planning comes in.

Since the accused knows, as CRA evidently does not, that they are innocent, they should plan from the outset to establishing a track record.

Defence counsel should write to CRA, the Crown Attorney and the Department of Justice, advising them that the facts do not support a conviction. Telling the Crown that when an acquittal is entered, that the defence will be making an application for costs is key.

Defence counsel must be specific and back up their claims with credible objective evidence to support their contention that a conviction cannot be entered (e.g., the taxpayer acted on legal advice).

By keeping a record of all the letters written, and how they were received or acknowledged, counsel will have a log of opportunities that the Crown had to reconsider its case.

According to the Department of Justice’s (“DOJ”) policies (found in their Federal Prosecution Service Deskbook), “Crown counsel [have an] obligation to ensure the integrity of the prosecution continues throughout the litigation process” (§9.3 ¶3, ll. 7 – 9). In other words, there is a positive duty on the Crown to investigate defence allegations which undermine the integrity of the prosecution: R. v. Ahluwalia (2000), 149 C.C.C. (3d) 193 (Ont. C.A.)

Thus, if the defence counsel can establish that the Crown breached its duty to inquire, or investigate – when faced with exculpatory evidence of a probative character – then this greatly improves the prospect for recovering costs upon dismissal of the charge(s).

When the day comes that the charges are to be dismissed, defence counsel can make an application for costs, supported by the various copies of the correspondence to CRA and the Crown.

With evidence that the Crown knew, or ought to have known (from the correspondence given and the evidence provided) that a conviction couldn’t be entered against the accused, they may be able to establish non-compliance with the DOJ’s Deskbook.

If the Crown’s prosecution violated DOJ policy, then arguable it was “oppressive” or an “abuse or some other flagrant impropriety on the part of the Crown.” If the presiding justice is persuaded by the evidence presented, then they than may make an award for costs.

Most acquittals will not merit an award of costs, but for those rare cases where serious Crown misconduct is present and demonstrable, defence counsel will recommend that their clients to make an application for costs.

Staff Writer
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