Legal Issues in North Carolina

Executing on a Judgment

2012-01-17T13:19:00.002-05:00

One of the biggest issues facing litigants and attorneys in a poor economy is the ability to collect on a judgment. My guess is that a majority of the public think that once a judgment is entered, that amount of money is immediately sent to the prevailing party. Whether dealing with an individual or struggling company, too often a sizable judgment is not collectible. The law creates several avenues for debtors to escape paying judgments and to retain certain personal assets.

When consulting an attorney about your case, it is important that he/she discloses to you, in addition to the merits of your case, the likelihood of collection. The best attorney in the world is valueless if your large jury verdict only exists on paper. Often times, the litigants themselves are the most knowledgeable concerning an opposing party's assets.

Before pursuing a case, it is important to have an attorney that 1) can ascertain the likelihood of success, 2) can discover other responsible parties, if any, 3) is experienced in executing on a judgment. Executing on a judgment involves complex issues that require constant communication with the Sheriff's office, knowledge of supplemental proceedings to discover assets, and a commitment to your case well after a judgment is awarded.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Medicare and Medicaid Liens

2011-10-26T15:32:00.000-04:00

Recent legislative changes have impacted the settlement of personal injury and workers compensation cases in regards to Medicare and Medicaid. (Medicare is for folks over 65 years old, Medicaid is for folks with low income).

Medicare - Before you can settle a case where Medicare has paid for some or all of the medical bills, you have to obtain a conditional lien letter which gives you an estimate of the amount of bills paid. It can sometimes take months to get this letter. Once the case is settled, you then have to obtain a final lien letter before funds can be disbursed. Therefore, obtaining lien information early in the process is important. In workers compensation cases, you also may have to place money in escrow for future medical bills. This is called an MSA or Medicare Set Aside.

Medicaid - Liens created by bills paid by Medicaid are a little easier to manage. For example, they will generally allow you to deduct one-third of their lien to help defer your attorney fees.

Having an attorney that is knowledgeable in these issues is critical to obtaining a fair resolution of any personal injury or medical negligence claim.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Preliminary Information on Condemnation Cases

2011-10-26T11:31:00.005-04:00

If you or someone you know has recently received a notice or a declaration of taking by the government regarding a portion of your property, there are significant questions you need answered to protect your rights as the homeowner.

1.) Was a Complaint filed for the taking? A complaint is a lawsuit, and in condemnation cases, the plaintiff is usually the government (or entity taking the property) and the defendants are all the "potentially" affected parties of that taking. Typically the list of defendants would include the homeowners, the bank who has the mortgage, and the Trustee (if there is one). The date of the taking is the same as the date of the filing of the complaint, and the plaintiff must deposit the full amount of the funds which it deems "just compensation" to the defendants. These funds are held with the Clerk of Court in whichever county the lawsuit was filed.

2.) A Complaint has been filed, and I disagree with the "just compensation" amount for my property. How do I fight it? If you agree with the amount deposited with the Clerk of Court as just compensation for the portion of your property being taken, then you may move the court to disburse the funds directly to you, once you have determined that none of the other defendants have an interest in the funds. NOTE - You must contact and provide adequate notice to all defendants that you plan on having a hearing to withdraw the funds. You do not need an attorney to withdraw these funds, but if you are nervous about doing it, you can hire an attorney to make a limited appearance on your behalf.

If you disagree with the amount deposited, you probably need to contact an attorney. The plaintiff has most likely determined your "just compensation" dollar amount by hiring an appraiser, who used a method for determining value. This appraiser must determine what the "highest and best use" of the condemned property was as of the filing of the taking. Your attorney will most likely want to hire a different appraiser or someone who can testify as to why the plaintiff's value of your property is unreasonable or too low. These costs will most likely need to be paid out-of-pocket by you, but in certain situations you may use the amount deposited with the Court to pay some of these expenses.

In condemnation cases, withdrawing the deposit (if you are permitted to do so) will not affect your right to later potentially collect more from the plaintiff, so long as you haven't signed anything waiving this right. You need to consult an attorney soon after receiving the complaint to avoid jeopardizing your rights to "just compensation."

Covenants, Conditions and Restrictions?

2010-09-02T12:11:00.002-04:00

How important is it that you know the restrictions on your property? Just ask a recent Charlotte couple who now have to demolish a $500,000 addition to their home because they innocently failed to follow setback requirements recorded in 1915. Before there were zoning requirements, sellers (grantors) were permitted to restrict the use of property that they sold. For example there could be restrictions on whether it could be used for residential purposes – or the size of a home could be regulated – or which way the house faced could be restricted.

As modern day zoning came into play around the 1940’s, actual deed restrictions became less prevalent. But in today’s subdivisions, not only does zoning regulate the use of one’s property, but it is likely that the developer has filed Covenants, Conditions and Restrictions (CCR’s) on your property.

These restrictions are placed in your chain of title and you are deemed to know what they say – even if you never actually read them or even received a copy. Therefore, the next time you begin construction on your lot, be sure you know what limitations may exist on your plans for the property.

If you have questions regarding your legal options, contact a Charlotte attorney at DeVore, Acton & Stafford, PA today.

Estate Administration: Qualifying as Administrator

2010-02-16T12:46:00.002-05:00

In North Carolina, if a person dies without a Will, that person is said to have died "intestate," and the Administrator is the person who handles the deceased person's (decedent's) estate. If the person died with an original of his/her last Will, that person has died "testate," and the Executor named in the Will would be handling the estate.

This is the most important distinction to make before going through the steps of handling a deceased person's estate. A thorough search should be done to determine whether the decedent left a Will. If there is no Will, and you wish to qualify as Administrator of the decedent's estate, there is a specific protocol you must follow in order to do so.

You must first apply to the clerk of superior court on a form provided by the clerk's office called, Application For Letters of Administration. Letters of Administration are the official written authorization to carry out the responsibilities as Administrator of the estate. This application form calls for a preliminary inventory of all assets of the decedent as of the date of death. This is important because that means you as the applicant must have a general knowledge of the decedent's real estate, bank accounts, stocks, bonds, cars, and other personal property. You must also estimate the value of these assets to complete the application.

Also, the clerk will grant letters of administration to a person who applies and is qualified to serve in the following order:
(1) Surviving spouse, (2) Anyone who is to receive property as indicated by Will, (3) Anyone entitled to receive property by law (w/o Will), (4) Any next of kin, (5) Any creditor to whom decedent became obligated prior to death, (6) Any person of good character residing in the county who applies with the clerk of superior court.

You must also take an oath or make an affirmation to carry out all the duties as Administrator faithfully and honestly, and in most circumstances you will need to furnish a bond as Administrator.

This is only the very beginning of the process. Most estate administration is very time consuming and can become quite complex. If you have never handled an estate before it may be a good idea to seek attorney assitance to help guide you through the process.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

The Importance of Knowing Your Automobile Insurance Coverages

2010-02-10T16:57:00.000-05:00

In North Carolina there are basically six types of typical automobile insurance coverage. (1) there is liability coverage which pays others that you might hurt with your car. Currently, the minimum limits are 30K per person up to 60K per accident; (2) there is property damage liability coverage to repair someone's car you have had struck; (3) there is collision coverage which will pay for your car's damage - even if it is your fault. Collision coverage is not required by law - but may be required by the lender who loaned you the money to buy the car; (4) there is optional medical payments coverage ("medpay") which operates as a small health insurance policy if you are injured in an accident - regardless of whose fault it was. It does not increase your premiums. Typical limits are 1K to 5K; (5) there is uninsured coverage known as UM coverage. This will pay for your car if you are struck by an uninsured or hit and run driver; (6) lastly there is underinsurance coverage (known as UIM). This is very important coverage. If you buy UIM coverage it means that regardless of the amount of coverage of the person who caused your accident, you and your family members can never have less protection that the limits of the UIM policy you bought. There are special regulations about how to apply for UIM coverage. If you are in a serious accident, you should take your own automobile insurance policy to a knowledgeable attorney and have him explain the policy to you.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Corporations Must Be Represented By Counsel

2010-02-02T16:10:00.006-05:00

If you own a corporation, company, small business, or some other organization and you feel you have been wronged or you wish to file a lawsuit . . . hire an attorney. In North Carolina, a corporation cannot appear pro se (without an attorney) and must be represented by a licensed attorney in order to bring a claim against an individual or another corporation. Unless you are appearing in Small Claims Court for under the sum of $5,000, or you are appearing to avoid Default Judgment, you need an attorney to represent your company or corporation.

Statute of Limitation

2010-02-01T18:26:00.002-05:00

Your right to a legal recovery from someone is not unlimited. States imposes a time limit by which you must seek recovery. As a general rule, the only way to stop the statute of limitations from expiring is to file a lawsuit. There are different statutes of limitation depending on the type of action you may have. For example, in a wrongful death action you have two years from the date of death to file suit. In an ordinary negligence action, you have three years to resolve the claim or file suit. This is also true in a breach of contract action. When the statute of limitations begins to run in contract disputes, medical negligence (malpractice) and fraud cases can be complicated and depend on different factors. For example, if you need to file a lien for nonpayment in a construction dispute, you must file the lien within 120 days and file suit to perfect the lien within 180 days of the date you were last on the job.

If you have been wronged, a consultation with an attorney regarding your rights is always a good idea.

Negligent Truck Maintenance

2010-02-01T17:03:00.002-05:00

Driving adjacent to or even near a tractor trailer represents one of the largest fears of the driving public. Simple physics and common sense suggest that if your mini cooper and a tractor trailer collide, your chances of walking away unscathed are remote. However, in my experience, for the vast majority of these truck drivers, I am amazed with their skill in controlling their vehicle. However, their ability to drive and ability to maintain their vehicle are two separate notions.

Driving skill is irrelevant when carriers and their drivers fail to properly inspect, light, clean, and otherwise maintain their tractors and trailers. Take a stroll down I-40 or I-77 in the evening and you're likely to find a host of violations of the Federal Motor Carrier Safety Regulations. Such regulations require, among other things, that all trailers be equipped with specific reflective stripping. The stripping is an alternating red and white pattern that must extend along the entire width of the trailer's rear, and must (in total) extend at least halfway down the length of the trailer. There are also requirements that these reflectors be continually cleaned and replaced as needed. The purpose of these reflectors is to give oncoming and passing motorists an idea of the size and bounds of the tractor and/or trailer. Even a minor collision between an average sized car and a tractor trailer can have a devastating result. Thus, trucking carriers and their drivers need to adequately light, clean, and routinely inspect their vehicles to ensure they are in compliance with the Motor Carrier Requirements - to save lives and escape liability.

Consequences of Writing a Worthless Check (NC)

2010-02-01T16:22:00.007-05:00

If you are like me, then there are times in your hectic life when you aren't quite sure exactly how much money you have in your checking account. In an age where electronic bank statements (e-statements) are the usual way people check account balances, it is easy to lose track of how much you have, or more importantly, how much you don't have. Add to that the number of days it takes for some credit card companies to process funds, or how long it takes "Aunt Millie" to deposit the $500 check you wrote her, and it can be rather simple to overdraft or write a check that bounces. For those of you where this applies, I warn you to be very cautious of those checks you are writing. The consequences of writing a bad or worthless check in NC are much steeper than you might think.

In North Carolina it is against the law for any person or corporation to make, draw, or deliver any check for a certain sum of money, knowing at the time of making there were insufficient funds for the check. If the amount of the check is over $100 the person is guilty of a Class 2 Misdemeanor, if it is over $2,000 it is a Class 1 Felony.

I know what some of you may be thinking...you are thinking that if you are unsure of how much you have in your checking account when you write the check, then you can argue you didn't know you had insufficient funds. However, "knowledge" of writing a worthless check is ordinarily proved by circumstances from which it may be inferred. For example, if you have written bad checks in the past or if you wrote a check immediately after depositing certain funds in your account, with knowledge that it takes awhile for your bank to process deposited funds, you may be guilty of a misdemeanor or a felony. If the evidence draws an inference that you knew you were writing a worthless check, you may be criminally liable.

Also, the act of writing the worthless check is enough to give the State probable cause to believe the person charged is guilty of the crime. Unfortunately, paying off a worthless check after a person is charged with the crime is immaterial to the determination of whether probable cause existed to initiate a worthless check proceeding.

Moral of this story: Don't write worthless checks!

5 Ways to protect yourself:
1.) Keep up-to-date records of everything you buy, not just what's on the E-statement.
2.) Always check your bank account before writing a check, especially one over $2,000.
3.) Don't write any checks from closed accounts.
4.) If someone tells you they are just holding the check and won't deposit it, don't believe them or if you do, make sure you have the funds...Believing somebody won't deposit it is not a defense to writing a worthless check.
5.) If you have written a worthless check and haven't yet been charged, either see an attorney or make every effort to pay off the entire amount of the check as soon as possible.

Trees are beautiful but dangerous

2010-02-01T15:48:00.002-05:00

In the past two years our firm has handled two death resulting from falling trees. In both instances there was a failure to inspect and remove the tree after telltale signs of rot and decay existed. Many times the dangerousness of the tree can only be detected by professional arborists. To avoid liability, and more importantly injury to others, be proactive in evaluating the large trees on your property. These trees can weigh more than 60 tons and easily can crush a car or almost anything else in its way.