Handling Threats of Violence

Question: My ex-wife's new boyfriend twice threatened to kill me over the phone and my ex-wife has threatened to commit suicide. How do I protect myself and my son from this guy?

Answer: Any time someone threatens you directly, you have the right to file for a civil harassment restraining order. Click here to read an article on how the process works.

Your situation is a little tricky because there have been no threats made against your son, so the court cannot issue an order protecting him. During the times you have custody, any "stay away" orders you receive will also protect your son. During the times that your ex-wife has custody, you will need to address this issue with the judge that is handling your divorce matter. Unfortunatley, you ex-wife's suicide threats are inadmissible heresay and have nothing to do with the threats made against you by her boyfriend.

You suggest that you file for the harassment restraining order and then discuss the custody issues with a family law attorney to see if it is possible to keep this person away from your son.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Regaining Possession After a Foreclosure Sale

Question: The bank foreclosed on the house I was living in last week. How long do I legally have to stay in the property? I am in California.

Answer: After the foreclosure sale, the new owner must serve a Notice to Quit on the occupants. If you are the former owner, you are only entitled to a 3-Day Notice to Quit. If you are a tenant of the former owner, you are entitled to a 30-Day Notice to Quit. If you still remain in the property after the the Notice to Quit expires, the new owner can file a eviction lawsuit which is also known as an unlawful detainer. If the new owner wins the lawsuit, you can be forcibly removed just as if you were a renter who had failed to pay rent.

You should either enter into a rental agreement with the new owner or leave volutarily. Even the filing of an eviction lawsuit against you can damage your credit rating and make it more difficult to find a new place to live.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Displaying Bounced Checks

Question: I am a small business owner who was given a check that was returned for non-sufficient funds. There is no question the account holder drafted the check and did not have sufficient funds at the time he wrote and gave me the check. I intended to publicly display the check at my business but was told this is illegal in California. Is this true?

Answer: I am unaware of any specific California law that prohibits this practice, but I there are cases in other states where the merchant has been held liable for invasion of privacy under similar circumstances. I have seen this type of display before and I doubt that merchants have really gained much besides the satisfaction of revenge.

The check will contain the account number and address of the check writer. In this day and age, it is very possible the a court could find the merchant liable if the display of a dishonored check lead to identity theft or some other financial loss to the person who wrote the bad check.

If the debtor files for bankruptcy, continuing to display the check could be considered an effort to collect the debt and a violation of the automatic stay or the discharge order.

California Civil Code Section 1719 allows a merchant to collect treble damages on a bounced check of up to $1500. Filing a small claims lawsuit and obtaining judgment against the bad check writer will place the judgment on their credit and this will be far more effective in helping you get your money than trying to publicly shame the debtor.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Consumer Tip: Timeshare Purchases

As many Southern California residents know, the developers of the Tahiti Village resort in Las Vegas have aggressively marketed sales of timeshare opportunities in Las Vegas. Consolidated Resorts, Inc. ("CRI") has been advertising free trips to Las Vegas. While this is a very high quality resort, consumers should be aware of the potential risks of purchasing a timeshare.

Timeshares typically have a very low resale value. In this case, CRI offered my wife and I a floating week in a 2-bedroom unit called the Royal Tahitian at prices ranging from $39,000 to $55,000. We eventually settled on purchasing a week in a 1-bedroom unit call the Moorea (580 square feet). Upon our return home, I found Royal Tahitian units for sale by current Tahiti Village owners for as little as $13,000. We promptly decided to cancel our purchase.

Nevada law allows a 5-day "cooling off" period for timeshare purchases. We elected to cancel our purchase and faxed a letter to CRI on the 5th day. Staff from CRI called to acknowledge receipt of the cancellation but stated that the cancellation notice must be given by certified mail. Although we did not read any such requirement in our documents, we complied as requested.

When purchasing a timeshare, be very careful to read all of the fine print and do your market research first. You might be paying far too much by purchasing from a timeshare developer and cancellation notices not given in the proper manner could com back to haunt you. Not every state has a "cooling off" period for timeshare purchases, so carefully read the documentation you are provided.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.