Tenants’ Rights When a Property is Sold or Goes into Foreclosure

I’m often asked by tenants what they can do if the house they’re renting is about to be sold by the landlord or is headed for foreclosure. Here’s information that should prove helpful to you in these situations:

In California, landlords wishing to sell their rental property are required to notify tenants in writing of their intention to sell. Many landlords ask tenants to vacate the property promptly, since having renters occupying the property generally limit the pool of potential buyers to investors or others willing to maintain the property as a rental.

Generally speaking, a rental lease will provide terms as to how much time a landlord must give the tenant to vacate the property. If such written terms are not included in the lease, the legal time requirement is at least 90 days—and notice must be delivered to the tenant in writing.

When a new owner takes over

If a prospective buyer wishes to purchase the property free and clear of occupants, the buyer can negotiate that the seller ensures the property is vacant by close of escrow. If the seller had not previously provided a Notice to Vacate to the tenant(s), the escrow period may end up being extended, since a Notice to Vacate provides tenants 30 to 60 (or even 90) days to relocate. Furthermore, if the tenant refuses to vacate after given proper notice, then the seller may be required to initiate legal proceedings for eviction.

In the event you face a Notice to Vacate, you’re entitled to all the privileges afforded by the lease until the period expires, (though you still have to pay rent). Whether it’s a foreclosure or sale situation, you can recover all or a portion of your security deposit, subject to any allowable deductions.

If the property is sold or foreclosed upon prior to the completion of a noticed period to vacate, the new owner takes the property subject to the tenant’s lease. I have found that, frequently, new owners offer current tenants “cash for keys”—meaning they will pay tenants to facilitate moving out so there’s no need to resort to legal proceedings (like eviction).

Stay aware of the situation

Tenants generally face a different problem when the property is in foreclosure. In the vast majority of situations, a tenant’s lease will survive the foreclosure process and the new owner takes the property subject to the lease. However, to stay in good standing under a lease, a tenant must make rental payments to the landlord/current owner of the property. How do you know if a piece of property is about to go into foreclosure or seems headed that way? If the landlord isn’t keeping you updated, contact the County Recorder’s office and file a Request to Notice, asking that you be alerted to any foreclosure proceedings. By doing so, you will receive copies of a Notice of Default and Notice of Sale in a timely manner.

Tenants have substantial rights in the event of a property sale or foreclosure, but they must stay on top of the situation in order to maintain those rights. In a foreclosure, for example, chances are good your security deposit will be gone with the original landlord who lost the property—in which case, you can seek return of that security deposit from the new owner. But in order to do
so, you must have documentation confirming that the original security deposit was paid (as noted in the original lease or through a cancelled check). So be sure to keep all documents relating to your rental (i.e. leases, canceled checks, or other proof of payment, etc…). Don’t throw anything away.

If you learn that the rental property you’re living in is about to be sold or go into foreclosure, contact an attorney. They will help make sure you are able to preserve and assert all your rights as a tenant.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

If You Pay into a Legal Insurance Plan, Don’t Waste it!

Coping with a legal issue can be expensive, time-consuming, and emotionally overwhelming. Many employers offer a legal insurance plan for just such situations as part of their employment benefits but in my experience a significant number of people sign up for such a plan and completely forget they have it.

Legal insurance won’t count for much if you don’t take advantage of it.

A legal insurance plan is similar to a health insurance plan. By enrolling with an employer’s plan and having a small monthly amount deducted from their paycheck, employees gain access to a nationwide network of attorneys and legal resources. In many cases, you get high quality legal services without the costly legal fees. The legal plan provides a list of approved attorneys for you to select from, just as you would a doctor. And when an attorney agrees to take your case, he or she submits a claim to the legal insurance plan provider, usually with little to no further expense to you (beyond minor out-of-pocket costs).

Each legal insurance plan provider has its own policies and procedures, but in general they cover a full range of personal legal matters, including:

  • Family law
  • Debt matters
  • Wills and estate planning
  • Defense of civil lawsuits
  • Traffic defense
  • Juvenile court issues
  • Real estate law

Depending upon which legal insurance plan your employer subscribes to, you may enjoy these benefits:

Advice and office consultations. Call an attorney for free advice and/or office consultation. Get guidance on your legal rights in a given situation, as well as access to online tools and resources. This benefit could lead to preventing a serious legal situation from occurring in the first place.

Build a relationship. Through a legal plan, you can develop a relationship with an attorney that might prove very helpful later on. Also, you know that lawyers who work with a legal insurance plan have been vetted for competence and reputability.

A resource in times of legal trouble. Should you need a lawyer for any of the cases mentioned above (or others), through your insurance plan, you’ll be in a great position to find the right person for your needs. It’s far better than simply typing in “I need a lawyer” on a Google search.

This employer-provided benefit can dramatically reduce the anxiety anyone feels with a legal issue, as well as the time and expense involved. You feel more in control of the situation and closer to resolving the issue and getting on with your life.

If you’re unsure what legal benefits your employer provides, I urge you to take a few minutes to talk with your boss or HR representative. Legal insurance coverage is too valuable a resource to overlook.

The Law Offices of Ian S. Topf belong to a variety of employer-provided legal insurance plans. Learn more about getting a free consultation .

Timing is Critical for Divorce/Dissolution of Domestic Partnership andBankruptcy Filings

Debt and other money issues are often at the root of divorce or the dissolution of domestic partnerships. But these problems don’t just go away once a couple separates. When debt is incurred by spouses or domestic partners in their joint names (and, in some cases, in just one party’s name), creditors can go after either party, regardless of a divorce or dissolution of
domestic partnership order.

For this reason, when one or both parties have racked up significant debt and look ahead to life as single individuals, they may see bankruptcy as the best way to address their financial situation.

Filing for divorce and filing for bankruptcy is, of course, two separate legal matters but if both actions are deemed necessary, the timing for each filing is especially critical. Why? Because while there may be benefits to filing jointly for bankruptcy protection, such a move is generally not permitted once a divorce becomes final. As for domestic partners, the Defense of Marriage Act
prohibits joint bankruptcy filings for unmarried partners.

Benefits of joint bankruptcy filing include:

  • Most attorneys charge the same fee whether one person or a married couple file for
    bankruptcy at the same time.
  • Filing for bankruptcy before a divorce should simplify debt and property division issues
    and lower your divorce costs.
  • In some circumstances, a married couple with dependents may find themselves eligible
    for certain types of bankruptcy relief, i.e., Chapter 7 discharge, for which a divorced
    individual with only visitation rights to his/her child(ren) may be deemed ineligible.

I often see clients who come in for both divorce and bankruptcy. If they both intend to file for bankruptcy, it generally does not matter which filing goes first. But if one party files for bankruptcy and the other party does not, things can get messy.

When a bankruptcy action is pending, Family Courts are temporarily deprived of their jurisdiction over property and debt issues but may still make orders with respect to the status of the marriage (or partnership) such issues as child custody and child/spousal support. Once the bankruptcy matter has been settled, parties then can return to Family Court for orders relating to what remains with respect to asset and debt division—if any assets and/or debts are left over after the bankruptcy.

Sometimes it’s beneficial to file for bankruptcy after a divorce, but in general, it makes sense to get rid of the debt together before the divorce is granted. Whatever your situation, please be sure consult with an attorney before moving ahead with either a divorce and/or bankruptcy filing.

Are you in need of legal counseling? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, bankruptcy/debt collection defense, to DUIs/criminal defense, and landlord/tenant disputes.

Tips on Avoiding Foreclosure Scams

Anyone facing the possibility of foreclosure on their home is in serious financial distress. People in these situations are susceptible to undue influence and can be easily misled into making bad decisions. It’s a sad but true fact—there are many unscrupulous third parties who won’t hesitate to take advantage of someone desperately seeking a way to save their house
or at least some of their finances. If you are facing foreclosure, here are some things to look out for when seeking professional assistance:

Scams come in many forms

Foreclosure scams, also known as “rescue scams,” come in many forms. The most common involve what companies call “mortgage relief services.” They say they’ll help you refinance your mortgage in a timely fashion so that a foreclosure sale doesn’t take place out from under you. For this alleged service, they charge a huge fee, (and sometimes additional fees for “operating
costs”), with the promise that the homeowner will walk away still owning the property and with a refinanced mortgage and all of their missed payments cleared up.

Sound too good to be true?

In the vast majority of cases, it is. What generally happens in these cases is … nothing ever gets done. The company that made such lifesaving promises collects its fee and then basically does nothing, never returns calls, etc. This goes on until the house goes into a foreclosure sale, at which point the former homeowner is simply out of luck. And just try to get a refund . . .

Another common scam involves a title transfer, where the foreclosure relief company requires you to turn over title (ownership) of your house either to them or to some other third party. You’re permitted to stay in the house as a tenant (renter) and, so the promise goes, with the plan to eventually buy back the property once the mortgage issue has been resolved.

The problem is, once you turn over the title, these companies routinely provide nothing in writing that validates this supposed agreement. Generally speaking, the title transfer process ends up with the third party claiming they were unable to save the house or that they now own the property outright, with no recollection of any alleged agreement with you. If they want, they can
sell the house themselves (they’re now the title-holders, after all) or they can open a home equity line-of-credit or other loan against the property, and take out any equity from the property. The end result – you lose any anticipated equity and, if you’ve been staying in the house as tenant, you’ll likely be evicted as well.

How can you avoid falling prey to schemes like these?

The office of the California State Attorney General offers helpful tips , including these:

  • Never transfer title or sell your house to a “foreclosure rescuer.”
  • Do not make mortgage payments to anyone other than your approved lender or loan
    service.
  • Do not sign documents without carefully reading them first. Homeowners believe they’re
    signing a document for a new loan or a loan modification. They learn later that they’ve
    transferred ownership of their home to someone who is now trying to evict them.

This is great advice but I want to add that you should always contact a lawyer before approaching any business promising foreclosure relief or responding to such a solicitation. Believe me—these companies have no accountability. They won’t think twice about taking your money and then disappearing.

If you’ve already become a victim of such a scam, it’s not necessarily too late to take action. A lawyer knowledgeable in this area can still take steps to help remedy the situation.

Are you in need of legal assistance regarding debt relief options or have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from bankruptcy, debt collection defense, estate planning, family law, as well as DUIs
and civil matters.

Too Poor to File for Bankruptcy?

According to a study by the Federal Reserve Bank of New York, changes originally enacted in 2005 to the Bankruptcy Abuse Prevention and Consumer Protection Act have made it substantially more difficult for “financially struggling people” to file for bankruptcy relief.

While it’s true that changes like these have made it tougher for people to seek bankruptcy protection in general, I don’t believe the additional hurdles put into place present a significantly greater financial hardship than before these changes were made. Remember, as stated in a couple of my prior blogs, there may be several different options to explore if you’re in need of debt relief.

The three common debt relief choices are:

Ignore the debt. Typically under California law, there’s a four-year statute of limitations for debts (except those made with an oral contract, for which the statute of limitations is two years). While I generally do not advise clients to go this route, especially if your debt(s) were incurred recently, you may just simply ignore your debt and hope the statute runs. In my experience, creditors are a pretty unforgiving bunch. Eventually you may get sued, which will lead to having your wages garnished, liens attached to your property, and/or bank accounts/other property seized and forfeited to your
creditor(s). Also, interest, penalties, and other fees for non-payment will keep accruing on your debts, worsening the situation.

Negotiate to settle the debt. In general, creditors are willing to reduce the overall balance owed on a debt, if they know they are going to get paid, especially if (1) you’ve missed at least a few payments and (2) you are willing to pay off the settled amount promptly (either lump-sum or over only a couple of months). The bad news is the government has made it a bit harder to negotiate with creditors. There is now a mandatory requirement that, with certain exceptions, creditors issue a 1099 Form for any balance forgiven in a settlement when the settlement amount equates to a more-than-$600 reduction from the balance you actually owe, You will then have to declare that 1099 amount on your taxes as if it were income (and pay taxes on said amount). Say, for example, you owe $2,000 and you negotiate a lump-sum settlement of $1,200, you will receive a 1099 for $800 to be added to your gross income for the year when tax time comes around.

File for bankruptcy relief. If neither of the first two options work, you will probably find yourself in bankruptcy court. In my opinion, in general, the greatest change that impacts one’s ability to file for bankruptcy relief has been the increase in allowable attorney fees in bankruptcy cases.  For example, here in San Diego, California, bankruptcy attorneys can now initial fees of up to $3,600.00 for a Chapter 13 consumer bankruptcy filing, up from $1,700.00 in 2012.  These fees usually do not include certain administrative costs and other miscellaneous fees for actions that may take place during the course of the bankruptcy case.

Where does this leave people in need of relief?

In general, if push came to shove, most people can come up with the requisite monies needed to hire a bankruptcy attorney to assist them in getting rid of a far more substantial amount of debt. For those who aren’t able to do so, there will always be attorneys (including myself) who usually don’t charge the allowable “standard” attorney’s fee.

There’s also the option of representing yourself in matters of bankruptcy relief, though of course, you’re held to the same standards and requirements as an attorney representing you in such an action. In my experience, those charged with monitoring your bankruptcy case (court websites, court clerks, the U.S. Trustees’ office) can be both understanding and helpful in providing information that may assist you with proceeding on your own.

A word of caution: There are individuals and businesses out there offering bankruptcy preparation services for “reduced fees.” Across the U.S., bankruptcy courts have had issues with such services, since they generally offer document preparation services with minimal instructions on how to file. The end-product is often incomplete and there’s usually no follow-up after the bankruptcy petition is filed. While not all such bankruptcy preparers operate this way, I urge you to carefully explore your options before choosing such a service.

In conclusion, while it is true that desperate times call for desperate measures, there are several non-drastic opportunities out there for debt relief, contrary to what the public is being led to believe by recent studies and news articles.  So if you find yourself in a personal financial crisis, don’t just curl up into a ball and hope your problems will magically disappear; reach out to a skilled debt relief professional and explore your options.

Are you in need of legal counseling for bankruptcy or debt issues or have any questions regarding the above? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from bankruptcy, family law, and estate planning to traffic violations and landlord/tenant disputes.  

What You Need To Know About Wills and Trusts

Many have experienced anxiety by reminding themselves of their own mortality with the COVID-19 pandemic. As a result of this, people are reaching out to me for estate planning. They ask if they need a Will or a Trust? Would they be able to get by with just a Will? As an attorney, I will advise if one needs either a Will, a Trust, or both.

What is a Will?
A Will is a document that states the wishes of a person after his/her death. It is a document that can contain provisions for guardianship over minor children as well as distribution of one’s estate after their death. However, a Will on its own has very little power or authority; a person who is responsible for handling another person’s estate, the “Executor”, cannot just take a copy
of a Will to a financial institution, hand it over to the bank representative and obtain the funds of the deceased. The Executor can only act out the terms of the Will after the Will is submitted to the Court (a.k.a. Probate). The Court will then consider the terms set out in the Will to create Orders authorizing the Executor to act. (A Will is generally only words on a paper until it’s
submitted to Probate and the Court takes action on it.) A Will sets up an estate for Probate… so, is a Trust the only means to avoid the expenses and consumption of time (Probate)? Not necessarily…

Do I need a Trust?
A living revocable trust is a legal instrument that sets out ownership of assets, guidelines for the management of those assets while you are still alive, and distribution of assets after you pass away. Generally when you have a living trust created, you still maintain full control over the assets. In California, the extent and value of your assets determine whether a trust is needed or not.

If the value of your estate is $166,250 or more, or if you own real estate, it is strongly recommended to have a living trust to avoid possible probate when you pass away. It allows the designated agent (Successor Trustee) to act/corral assets and distribute them without court intervention.

When is a Trust not needed? Small Estate Petition/Probate Code 13100
In California, if a person’s estate is under $166,250 and does NOT have an ownership interest in real estate, there is an administrative action that can be taken without going to court to corral and distribute one’s assets. One can obtain a Small Estate Petition (Probate Code 13100). This declaration will be presented to the entity (i.e. financial institution, plan administrator, agency)
who currently has control of the assets being sought, under California law, the declaration will give the entity the authority to release the assets to the deceased’s next of kin/legal heir(s).

Example:
A person has three bank accounts and a car in their name. The total assets are $100,000. The personal representative of the estate may be set out in the person’s Will, or, if there is not a Will, the next of kin/legal heir(s) can sign a Small Estate Petition under Probate Code 13100 to collect personal property of a small estate.

Another consideration when making a decision on whether you need a Will or a Trust or both is that a person cannot just focus on the here and now – a Trust will serve as the depository for current and future assets. Anticipate how your estate will look in the foreseeable future before making the decision.

Unsure if you have sufficient estate planning? Check with a lawyer to verify that your estate is in order. Take control of your estate rather than having your state control your assets when you pass. 

If you have any questions about a new estate plan or in need of updating your existing estate plan, contact the Law Offices of Ian S. Topf, APC by calling (619) 546-9777 or by email: ian@topf-law.com.

Questions To Ask At Your Free Legal Consultation

Many attorneys offer free legal consultation as part of their services to prospective clients. For the client, it’s an opportunity to get a feel for the attorney and see if they feel comfortable having this individual represent them in their legal matter. For attorneys, it’s a chance to get a sense of
the client’s legal needs and what actions should be taken to meet those needs. Usually these consultations last between a half-hour to an hour—just enough time for both parties to determine if there’s a “good fit.”

Of course, there are situations where one or both sides have an ulterior motive. The attorney may be chiefly interested in determining the value of the case to his or her firm, while some would-be clients make a circuit of law offices offering free consultations, trying to get as much free advice as possible while “price-shopping” different law firms.

I want to offer some guidelines for people genuinely interested in having a positive and informative legal consultation. First, here’s what the prospective client should bring to the table:

  • Be prepared. People often come to my office burdened with financial problems, but with no real understanding of what those problems are. It’s difficult to provide useful advice without a clear idea of the issues involved. For a bankruptcy situation, have a summary ready—what you make, what you spend, what you owe and what you own. In divorce cases, the attorney needs to know what you think the chief issues will be and where there are areas of possible agreement between spouses. Remember, many attorneys base their fees on the information they get from clients.
  • Be honest. Lying to the person you want to represent you, or even skimming over pertinent details, will cost you substantially more in the long run.

The following questions will help you decide if an attorney is right for you.

Experience

How long have you practiced in this field of law? Have you handled cases similar to mine before? Are you primarily a litigator, negotiator or mediator?

Managing the case

What are the possible or likely outcomes for my case? Do you recommend mediation or going to court? In a divorce case, how do state laws affect custody, support, alimony and the division of property? What’s your estimate about the length of time this case will take? What percentage of cases like mine get settled out of court? How will you keep me updated on the progress of this case?

Legal fees and costs

Obviously, this is a subject every potential client wants to know about. If an attorney is unwilling to provide a fairly detailed estimate of fees and costs, that’s a red flag and a warning to stay away. With this in mind, ask questions like these:

What is your hourly rate? Is a retainer required? Is this fee refundable in case we don’t move forward with litigation? How often will I be invoiced and will these invoices be broken down in detail? What other costs are involved for services like the use of associates, paralegals, experts, and/or other legal support staff? Can you give me a ballpark figure for the total bill (including fees and expenses)?

These are a lot of questions to ask in a short consultation time-frame, but the more you learn about what the attorney can offer, the easier your decision about hiring him or her will be. If you find an attorney you believe you can work with, my advice is to go for it. If after the consultation you have any concerns, getting a second or third opinion is completely acceptable.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

What Are My Rights As A Tenant?

Here’s a situation I encounter frequently. Tenants renting a house or apartment say they’ve called the landlord repeatedly to repair something or clean up pests of some kind, and nothing gets done. What can they do?

Under California law, every residential tenancy, whether under a written lease or otherwise, is subject to a landlord’s warranty of habitability. This means that when you rent a house or apartment, the landlord has to maintain his/her guarantee that you can live on the premises free from safety and health concerns.

Subjective vs. Objective

Seems pretty clear-cut, doesn’t it? Not entirely, as what’s deemed a health or safety concern may be left open to interpretation using a subjective perspective.

Say, for example, you’re worried that the roof will cave in because of termites, which you believe are present due to a couple of small piles of wood shavings in the corner of the master bedroom. If you don’t know precisely what the extent of the damage is, your fear is considered a subjective concern. Until an investigation determines termites have attacked a weight-bearing support beam, there’s not much you can do, except report this concern to your landlord.

A burst pipe, on the other hand, is an unquestionable (and objective) safety and health concern. In this situation, you should immediately contact your landlord (in fact, that’s your obligation as tenant). It’s the first necessary step toward giving them adequate notice of the problem.

My advice is not to rely solely upon a telephone call. A text or email is helpful, but with any of these forms of communications, it can be hard to prove you provided adequate notice of a problem. A landlord can claim the phone call never happened or electronic communications failed.

Therefore, in addition to the means listed above, I recommend you send a letter to the landlord by certified mail (with return receipt requested), so there’s legally acceptable proof of notice to the landlord.

What if the landlord ignores your request?

In the event the landlord ignores your request to fix a broken toilet or replace a broken window, here are possible options.

Take matters into your own hands. You can repair the damage yourself and deduct the cost from your rent. This must be a “reasonable” repair, so be sure to use the most reasonable repair option (don’t go for expensive parts or labor without the landlord’s written pre-approval). Remember, it must be a serious defect in order to deduct payment from your rent. A bent screen on your window poses no genuine health concern, so if you hire someone to fix it, this would be an unreasonable deduction from your rent without the landlord’s approval.

In order to fix and deduct, neither you, a family member, friend, nor anyone else who is present with your consent can be the one(s) causing the damage. Also, you have to give the landlord notice and a reasonable amount of time to make the repairs (unless it’s an immediate threat, like a roof collapsing).

If you do pay for repairs, be sure to keep all receipts. That way, if you decide to deduct from your rent, you can provide copies of the receipts to the landlord, along with an explanation about why you’re not paying a full amount of rent for the month.

You can withhold rent. This is an option in cases where you determine that the rent you’re being charged isn’t reasonable for the place you inhabit—that is, conditions have made the house or apartment at least partially uninhabitable.

For example, a cracked window in the dead of winter makes a part of your dwelling unlivable, due to extreme cold. You calculate you can use only 75% of the house, so you’ll pay only 75% of the rent. Reminder: You must first give the landlord an opportunity to fix the damage.

According to the law, you can only withhold rent for one month per job. And you can’t use this remedy more than twice in a 12-month period.

Abandon the premises. If a condition is serious enough that you feel you and your family are at risk, you have the legal right to walk away. (Again, only after giving notice to the landlord of the need for repairs and a reasonable opportunity to fix the problem.) If your requests for repairs have gone unanswered, you are legally entitled to cancel the lease.

With each of the options listed, be sure to document everything! Take photographs. Make copies of notices. Keep receipts of out-of-pocket inspections to support your claim.

There are risks involved in either deducting or withholding rent. If the reason for your actions isn’t considered reasonable in the eyes of a judge, a landlord can evict you and hold you responsible for rents and other damages.

As a tenant, you have specific legal rights concerning the safety of your house or apartment. Before taking any action, you should always consult an attorney with experience and knowledge in this area.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

What Can A Restraining Order Do?

A restraining order (also known as a “protective order”) can be as powerful as a court order or as flimsy as a piece of paper. You can’t hold it up in front of someone with a gun and expect it to protect you.

However, a protective order can serve a useful purpose, which I’ll get to in a minute. First, it’s important to know the five most common types of restraining orders a court can issue:

Workplace Violence Restraining Order

When an employer notices that an employee is being harassed, assaulted, stalked or otherwise threatened by a third party, that employer can request that the court issue an order restraining the perpetrator from coming anywhere near the place of business. The employee cannot ask for this
type of restraining order, though he or she has other options.

Civil Harassment Restraining Order

This is a legal option for a person being stalked or harassed by an individual with whom they do not have a close, personal relationship (such as a neighbor, roommate, acquaintance, etc…).

Elder or Dependent Adult Abuse Restraining Order

This option exists for people who are over the age of 65, or under 65 but subject to a conservatorship or some disability that makes them unable to care for themselves. It can be filed against a caretaker, family member, or other person in situations where the elder or adult dependent is experiencing physical or financial abuse; neglect; harmful physical or mental treatment; or deprivation of basic human services.

Criminal Restraining Order

This type of protective order is usually sought by a criminal prosecutor, sometimes at the victim’s request, during the course of a criminal proceeding. It’s designed to protect a victim from the perpetrator of domestic violence (or some other harassing actions), while an abuse, battery or assault case is underway.

Domestic Violence Restraining Order

This is the most commonly filed of these different types of protective orders. Typically, it involves an individual with whom the protected person has a close relationship (as in a current or prior marriage, live-in situation, or just dating). It can also be sought on behalf of children, even if they are not the children of the perpetrator. It can restrain an individual from doing certain things—such as making physical or verbal contact, stalking, threatening or otherwise disturbing the peace.

So is a restraining order effective?

The answer is yes, under certain conditions. In many cases, the threat of criminal prosecution for a violation of a restraining order is just enough deterrent to cease the abusive behavior. Additionally, if the restrained person isn’t a U.S. citizen, a restraining order against that person may affect his or her immigration status (and prosecution for a violation of the restraining order most likely will affect his or her legal status). Further, if law enforcement gets a 9-1-1 emergency call, they may jump a little faster if there’s a restraining order already filed against an alleged perpetrator.

Keep these tips in mind if you’re considering asking for a restraining order:

  • Details, Details, Details. Be very specific in relating the types of incidents involved—dates, times, locations, and a precise description of the action. Reporting that you were “hit on the left side of the face with his fist” is more effective than, simply, “he (or she) hit me.”
  • File Promptly. Ask for a restraining order promptly after an incident has occurred. If you
    delay and wait several weeks or months, the court may feel that the threat of abuse is no
    longer present, or wasn’t even there in the first place.

In my experience, a restraining order often serves as a good deterrent against future abuse or harassment. It’s not guaranteed to change the negative behavior, but can serve as a warning. But even with a restraining order in place, the person involved must remain alert and utilize the services of local law enforcement if they continue to be harassed.

If you believe you have grounds to request a restraining order, it’s a good idea to talk to an attorney and make sure such an action is in your best interests.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.


What Happens At A Mandatory Settlement Conference?

During the course of a family law matter, such as divorce, legal separation or dissolution of domestic partnership, many California courts offer the option of a scheduled “settlement conference.” In some counties, including San Diego, this is a mandatory proceeding, should the parties be unable to resolve their dispute among themselves. It is, in essence, a last-ditch effort to come to an agreement before proceeding to a formal trial.

If a case proceeds to this point, the parties or their attorneys are required to “meet and confer” prior to the settlement conference date. Attorneys may confer in person or by phone or email to narrow down what issues have already been settled and what issues remain unresolved. The goal is to frame the actual settlement conference, so everyone involved can focus on what’s truly in dispute at that time.

In preparation for a settlement conference, the Court will appoint one or more “settlement conference judges” (attorneys who volunteer to assist in the process). After the “meet and confer” process is completed, both sides must prepare settlement conference briefs to give to the settlement judge and share with the opposing party. Generally, these briefs include an overall
summary of the case to date, including issues to be presented, each party’s position and/or proposals and, lastly, any documentation in support of the party’s position. As I tell my clients, while they’re called “briefs,” there’s nothing brief about them!

On the date of the settlement conference, the parties and attorneys show up in court, check in with the department where the case is being heard and listen to a few words offered by the courtroom Judge (not the same as the settlement judge). Then the parties, attorneys and settlement judge begin their meeting and attempt to work out a settlement of all disputed issues.
The settlement judge doesn’t have the power to render decisions; he or she is there solely to help facilitate an agreement. If by the end of the conference, parties can reach a settlement, in part or in whole, usually the Court will allow them to put everything on the record. If they’re unable to reach agreement, the Court then sets a trial date to resolve the dispute.

Mandatory Settlement Conferences generally have no costs beyond your attorney fees. It is certainly worth exploring as an alternative to going to trial. Speaking from experience, it’s almost always better to compromise to something you can accept, than to roll the dice and put your issues before a Judge, who may or may not know all of the factors when coming to a
decision on your substantive issues such as child custody and division of property, a decision that may affect the rest of your life.

Are you in need of legal counseling for divorce or dissolution of a domestic partnership? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.