In 2003, John Kopchinski was earning $125,000 a year selling the drug Bextra for Pfizer. He had a baby son, and his wife was pregnant with twins. The Gulf War veteran says that, "In the Army, I was expected to protect people at all costs." At Pfizer, though, he was expected to sell Bextra, even though it raised the risk of heart attacks and strokes. After Kopchinski expressed his concerns about Bextra's safety, Pfizer fired him. He eventually got a new job paying $40,000 a year.
Kopchinski hired attorney Erika Kelton of Phillips & Cohen. In 2005, Pfizer withdrew Bextra from the market. Now Pfizer is pleading guilty to felony charges of promoting Bextra for unapproved uses. Pfizer will pay penalties of $2.3 billion, and Kopchinski will get a $51.5 million share for filing the "qui tam" lawsuit under the False Claims Act (FCA) that helped the government collect these penalties. Kopchinski is one of five whistleblowers sharing in the settlement. He says that he does not expect his life to change much now, according to a news account of this settlement available from Reuters.
Crutial court decisions such as the one in the Pfizer case have assisted whistleblowers in coming forward. In 2008, there has been rapid legislative response in the enforcement arena. On May 20, 2009, President Obama signed into law the Fraud Enforcement and Recovery Act of 2009 (FERA). This act authorizes substantial new funding to the Department of Justice and other federal enforcement agencies for the investigation and prosecution of offenses. FERA amends the False Claims Act (FCA) in a manner that may increase the exposure of every company that does business with the federal government and every person or entity that supplies goods or services that are reimbursed by federal government dollars.
The FCA provides for recovery of civil penalties and treble damages from any person who knowingly submits or causes the submission of false or fraudulent claims to the United States for money or property. Under the most commonly-enforced provisions of the statute, a person is liable for “knowingly” (1) presenting or causing the presentment of a claim for payment or approval; (2) making a “false record or statement to get a false or fraudulent claim paid or approved by the Government;” or (3) conspiring to defraud the government “by getting a false or fraudulent claim allowed or paid.” The FCA also penalizes so-called “reverse false claims, “ in which a person “knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid or decrease an obligation to pay or transmit money or property to the Government.” The FCA defines “knowingly” as having “actual knowledge” of falsity or acting in “deliberate ignorance” or “reckless disregard” of the truth or falsity of the information. “No proof of specific intent to defraud is required.” 31 U.S.C. §3729(b).
The FCA’s qui tam provisions empower private individuals to file litigation in federal court on behalf of the government and to share in any subsequent recovery. The FCA’s qui tam provisions provide enormous incentives for qui tam Realtors (whistleblowers) to expose fraud against the government, awarding 15-30% of settlement or judgment proceeds to Realtors, who may also be entitled to reasonable attorney fees’ and costs, which may be substantial.
FCA civil damages and penalties can be severe. Defendants may be held liable for up to three times actual damages plus penalties between $5,500 and $11,000 per claim. Depending on the method in which the “claims” are calculated, civil penalties may far exceed the actual damages the government sustained.
FERA amends the definition of “claim” in a significant way. The new definition of “claim” is:
(A) any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that –(i) is presented to an officer, employee, or agent of the United States; or (ii) is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government’s behalf or to advance a Government program or interest, and if the United States Government –
(I) provides or has provided any portion of the money or property requested or demanded; or
(II) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.
FCA liability may now be triggered by any false claim made to any recipient of federal money so long as the money is used to “advance a Government program or interest.” FCA realtors and the Department of Justice will now be able to push to give this provision the broadest possible interpretation.
The old FCA penalized a person who “knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid or decrease an obligation to pay or transmit money or property to the Government.” 31 U.S.C §3729(a)(7). FERA now defines “obligation” to include the retention of any overpayment, which opens new avenues of exposure against federal contractors or grantees for knowingly retaining government “overpayments.”
In the past, the FCA afforded protection to “any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee.” 31 U.S.C. § 3730(h). FERA extends whistleblower protections beyond “employees” to a “contractor or agent” and no longer requires any prohibited retaliatory action be taken by an employer. The FERA now reads “any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment. 31 U.S.C. § 3730(h).
An FCA action must be brought within six years of the date on which a violation was committed, or within three years of the date on which the government knew or should have known that a violation was committed, and in no event more than 10 years after the date on which the violation was committed.
Monday, September 28, 2009
Wednesday, September 23, 2009
Protect Your Trademark and Service Mark
Protectability of Mark
Equibrand Corporation v. Reinsman Equestrian Products, Inc. and Dale R. Martin, 2007 U.S. Dist. LEXIS 36229 (United States District Court for the Northern District of Texas, Dallas Division). According to Equibrand, to determine whether a mark is protectable, a court must assign the mark into one of five categories, which, arranged in order of increasing distinctiveness, are: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful.” A surname is generally regarded as “descriptive” by the 5th Circuit, which is distinctive only if it has acquired a secondary meaning. Canon Props, 752 F 2d at 155.
In order for a party to prevail under the Lanham Act, a party must first show that the word or phrase in dispute is registerable or protectable. Zatarians, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786,790 (5th Cir. 1983). March Madness Athletic Ass’n v. Netfire, Inc., 310 F. Supp. 2d 786, 806, (N.D. Tex. 2003). After protectability is established, a Plaintiff must prove the likelihood of confusion. A mark is protectable if it is either (1) inherently distinctive or (2) has acquired distinctiveness through secondary meaning. Two Pesos Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S. Ct. 2753, 120 L.Ed.2d 615 (1992).
Secondary Meaning
A trademark has successfully acquired a secondary meaning when “in the minds of the public, the primary significance of a product feature or item is to identify the source of the product rather than the product itself. Secondary meaning is a term of art in trademark law. It refers to the situation which arises when a company has a mark which might ordinarily be ineligible for protection were it not for the fact that the name has come to be closely associated, (in a distinct market), with a particular manufacturer’s product or service.
In order to establish a secondary meaning for a term, a plaintiff must show that the primary significance of the term in the minds of the consuming public is not the product by the producer. The burden of proof to establish secondary meaning rests at all times with the plaintiff; this burden of proof is necessary to establish secondary meaning for a descriptive term. The mark must denote to the consumer “a single thing coming from a single source,” to support a finding of secondary meaning. Both direct and circumstantial evidence may be relevant and persuasive on the issue. Factors such as amount and manner of advertising, volume of sales, and length and manner of use may serve as circumstantial evidence relevant to the issue of secondary meaning. While none of these factors alone will prove secondary meaning, in combination they may establish the necessary link in the minds of the consumers between a product and its source. It must be remembered, however, that the question is not the extent of the promotional efforts, but their effectiveness in altering the meaning of the term to the consuming public. Zatarians, Inc. v. Oak Grove Smoke-House, Inc., 698 F.2d 786; 1983 U.S. App. LEXIS 30159 (Feb. 25, 1983).
Survey evidence is the most preferred and persuasive manner to establish secondary meaning. However, other factors, taken together, may also establish that a mark has achieved secondary meaning, these factors include: (1) length and manner of use of the mark by Plaintiff; (2) nature and extent of advertising and promotion of the mark; (3) efforts made to promote and conscious connection in consumers mind between mark and particular product or service; and (4) Defendant’s intent to copy the mark.
What Constitutes Registered Mark?
Federal registration of a mark “including a surname” creates a presumption that the mark is distinctive. Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 876 (9th Cir. 1999); Lois Sportswear, USA, Inc. v. Levi Straus & Co., 799 F.2d 867, 871 (2nd Cir. 1986). Union National Bank states “the ownership of a trademark is established by use, not by registration. The first one to use the mark is generally held to be the “Senior” user and is entitled to enjoin junior users from using the mark, or one that is deceptively similar to it, subject to limits imposed by senior user’s market and natural area of expansion.” Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 364-65 (2nd Cir. 1959) (owner of mark not able to enjoin its use by others in area where owner not likely to expand).
Union National Bank of Texas, Laredo, Texas v. Union National Bank of Texas, Austin, Texas, 909 F.2d. A senior user may not exclude others in areas where he does not currently do business nor is likely to do business in the future. Citing, Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F. 2d 358, 364-65 (2d Cir. 1959).
Confusion Related to a Mark
The touchstone of infringement inquiry is whether or not Defendant’s use creates confusion as to “source, affiliation, or sponsorship” of Defendant’s goods because of its purported likeness to Plaintiff’s goods. Pebble Beach Co. v. Tour 18 I, Ltd., 155 F. 3d 526, 543 (5th Cir. 1998).
The 5th Circuit has enumerated the following list of non-exhaustive factors, no single one being dispositive, to determine whether likelihood of confusion exists (1) type of mark allegedly infringed; (2) similarity between 2 marks; (3) similarity of products or services; (4) identity of retail outlets and purchasers; (5) identity of advertising media used; (6) the Defendant’s intent; and (7) evidence of actual confusion. Taco Cabana Int’l, Inc. v. Two Pesos, Inc., 932 F. 2d 1113, 1122 n.9 (5th Cir. 1991) aff’d sub nom. See also, Two Pecos.
The first element, type of mark infringed, focuses on the strength of the mark. Strength of a service mark for purposes of analyzing likelihood of confusion is dependent on both placement of mark on spectrum of distinctiveness and the extent to which the consumers in the relevant market place recognize the mark as an indicator of source.
Similarity of the mark is determined by comparing the marks “appearance, sound and meaning.” The relevant inquiry is whether, under the circumstances of the use, the marks are sufficiently similar and that prospective purchasers are likely to believe that the two users are somehow associated. The greater the similarity between products, the greater the likelihood of confusion between marks.
Irreparable Injury
In a trademark case, a plaintiff may show irreparable injury by establishing a substantial likelihood of confusion. When a likelihood of confusion exists, the plaintiff’s lack of control over the quality of the defendant’s goods constitutes immediate and irreparable harm, regardless of the actual quality of the goods. The injury lies in the fact that the plaintiff no longer can control its own reputation and goodwill.
Injunctive Relief
To obtain preliminary injunction, moving party must demonstrate (1) substantial likelihood of success on merit; (2) substantial threat of irreparable injury if injunction not granted; (3) threatened injury to Plaintiff must outweigh threatened injury to Defendant; and (4) granting of preliminary injunction serves public interest. See, Cherokee Pump & Equipment, Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir. 1994). If the moving party cannot prove all four elements then the court must deny injunctive relief since the decision to grant preliminary injunction is the exception rather than the rule. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
Union National Bank of Texas, Laredo, Texas v. Union National Bank of Texas, Austin, Texas, 909 F.2d 839 (5th Cir. 1990). The owner of a federally registered mark is only entitled to injunctive relief in the market it actually serves plus its “natural zone of expansion.” He may not enjoin others from using the mark if the likelihood of confusion between his product and the infringer’s is minimal or non-existent, such as where the parties to the action use the mark in totally different markets, or for different products. The “zone of expansion” doctrine represents a conundrum within the conundrum of trademark law. There is no established definition. A party seeking an injunction for trademark infringement must clear several hurdles in order to prevail. First, he must prove that the name he seeks to protect is eligible for protection. He must then prove he is the senior user. Having proven these elements he must then show a likelihood of confusion between his mark and that of the defendant. Finally, because he is asking for the equitable remedy of an injunction, he must show that the likelihood of confusion will actually cause him irreparable injury for which there is no adequate legal remedy.
To succeed in a trademark infringement claim, a party must first show that it has a protectable right in the mark and second, show that there is a likelihood of confusion. The non-exhaustive list of factors, or digits of confusion, includes: (1) the type of trademark allegedly infringed; (2) the similarity between the two marks; (3) the similarity of the products or services; (4) the identity of the retail outlets and purchasers; (5) the identity of the advertising media used; (6) the defendants’ intent; and (7) any evidence of actual confusion. Brennan’s, Inc. v. Bert Clark Brennan; Blake W. Brennan, 289 Fed. Appx. 706; .S. App. LEXIS 16890.
Equibrand Corporation v. Reinsman Equestrian Products, Inc. and Dale R. Martin, 2007 U.S. Dist. LEXIS 36229 (United States District Court for the Northern District of Texas, Dallas Division). According to Equibrand, to determine whether a mark is protectable, a court must assign the mark into one of five categories, which, arranged in order of increasing distinctiveness, are: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful.” A surname is generally regarded as “descriptive” by the 5th Circuit, which is distinctive only if it has acquired a secondary meaning. Canon Props, 752 F 2d at 155.
In order for a party to prevail under the Lanham Act, a party must first show that the word or phrase in dispute is registerable or protectable. Zatarians, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786,790 (5th Cir. 1983). March Madness Athletic Ass’n v. Netfire, Inc., 310 F. Supp. 2d 786, 806, (N.D. Tex. 2003). After protectability is established, a Plaintiff must prove the likelihood of confusion. A mark is protectable if it is either (1) inherently distinctive or (2) has acquired distinctiveness through secondary meaning. Two Pesos Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S. Ct. 2753, 120 L.Ed.2d 615 (1992).
Secondary Meaning
A trademark has successfully acquired a secondary meaning when “in the minds of the public, the primary significance of a product feature or item is to identify the source of the product rather than the product itself. Secondary meaning is a term of art in trademark law. It refers to the situation which arises when a company has a mark which might ordinarily be ineligible for protection were it not for the fact that the name has come to be closely associated, (in a distinct market), with a particular manufacturer’s product or service.
In order to establish a secondary meaning for a term, a plaintiff must show that the primary significance of the term in the minds of the consuming public is not the product by the producer. The burden of proof to establish secondary meaning rests at all times with the plaintiff; this burden of proof is necessary to establish secondary meaning for a descriptive term. The mark must denote to the consumer “a single thing coming from a single source,” to support a finding of secondary meaning. Both direct and circumstantial evidence may be relevant and persuasive on the issue. Factors such as amount and manner of advertising, volume of sales, and length and manner of use may serve as circumstantial evidence relevant to the issue of secondary meaning. While none of these factors alone will prove secondary meaning, in combination they may establish the necessary link in the minds of the consumers between a product and its source. It must be remembered, however, that the question is not the extent of the promotional efforts, but their effectiveness in altering the meaning of the term to the consuming public. Zatarians, Inc. v. Oak Grove Smoke-House, Inc., 698 F.2d 786; 1983 U.S. App. LEXIS 30159 (Feb. 25, 1983).
Survey evidence is the most preferred and persuasive manner to establish secondary meaning. However, other factors, taken together, may also establish that a mark has achieved secondary meaning, these factors include: (1) length and manner of use of the mark by Plaintiff; (2) nature and extent of advertising and promotion of the mark; (3) efforts made to promote and conscious connection in consumers mind between mark and particular product or service; and (4) Defendant’s intent to copy the mark.
What Constitutes Registered Mark?
Federal registration of a mark “including a surname” creates a presumption that the mark is distinctive. Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 876 (9th Cir. 1999); Lois Sportswear, USA, Inc. v. Levi Straus & Co., 799 F.2d 867, 871 (2nd Cir. 1986). Union National Bank states “the ownership of a trademark is established by use, not by registration. The first one to use the mark is generally held to be the “Senior” user and is entitled to enjoin junior users from using the mark, or one that is deceptively similar to it, subject to limits imposed by senior user’s market and natural area of expansion.” Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 364-65 (2nd Cir. 1959) (owner of mark not able to enjoin its use by others in area where owner not likely to expand).
Union National Bank of Texas, Laredo, Texas v. Union National Bank of Texas, Austin, Texas, 909 F.2d. A senior user may not exclude others in areas where he does not currently do business nor is likely to do business in the future. Citing, Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F. 2d 358, 364-65 (2d Cir. 1959).
Confusion Related to a Mark
The touchstone of infringement inquiry is whether or not Defendant’s use creates confusion as to “source, affiliation, or sponsorship” of Defendant’s goods because of its purported likeness to Plaintiff’s goods. Pebble Beach Co. v. Tour 18 I, Ltd., 155 F. 3d 526, 543 (5th Cir. 1998).
The 5th Circuit has enumerated the following list of non-exhaustive factors, no single one being dispositive, to determine whether likelihood of confusion exists (1) type of mark allegedly infringed; (2) similarity between 2 marks; (3) similarity of products or services; (4) identity of retail outlets and purchasers; (5) identity of advertising media used; (6) the Defendant’s intent; and (7) evidence of actual confusion. Taco Cabana Int’l, Inc. v. Two Pesos, Inc., 932 F. 2d 1113, 1122 n.9 (5th Cir. 1991) aff’d sub nom. See also, Two Pecos.
The first element, type of mark infringed, focuses on the strength of the mark. Strength of a service mark for purposes of analyzing likelihood of confusion is dependent on both placement of mark on spectrum of distinctiveness and the extent to which the consumers in the relevant market place recognize the mark as an indicator of source.
Similarity of the mark is determined by comparing the marks “appearance, sound and meaning.” The relevant inquiry is whether, under the circumstances of the use, the marks are sufficiently similar and that prospective purchasers are likely to believe that the two users are somehow associated. The greater the similarity between products, the greater the likelihood of confusion between marks.
Irreparable Injury
In a trademark case, a plaintiff may show irreparable injury by establishing a substantial likelihood of confusion. When a likelihood of confusion exists, the plaintiff’s lack of control over the quality of the defendant’s goods constitutes immediate and irreparable harm, regardless of the actual quality of the goods. The injury lies in the fact that the plaintiff no longer can control its own reputation and goodwill.
Injunctive Relief
To obtain preliminary injunction, moving party must demonstrate (1) substantial likelihood of success on merit; (2) substantial threat of irreparable injury if injunction not granted; (3) threatened injury to Plaintiff must outweigh threatened injury to Defendant; and (4) granting of preliminary injunction serves public interest. See, Cherokee Pump & Equipment, Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir. 1994). If the moving party cannot prove all four elements then the court must deny injunctive relief since the decision to grant preliminary injunction is the exception rather than the rule. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
Union National Bank of Texas, Laredo, Texas v. Union National Bank of Texas, Austin, Texas, 909 F.2d 839 (5th Cir. 1990). The owner of a federally registered mark is only entitled to injunctive relief in the market it actually serves plus its “natural zone of expansion.” He may not enjoin others from using the mark if the likelihood of confusion between his product and the infringer’s is minimal or non-existent, such as where the parties to the action use the mark in totally different markets, or for different products. The “zone of expansion” doctrine represents a conundrum within the conundrum of trademark law. There is no established definition. A party seeking an injunction for trademark infringement must clear several hurdles in order to prevail. First, he must prove that the name he seeks to protect is eligible for protection. He must then prove he is the senior user. Having proven these elements he must then show a likelihood of confusion between his mark and that of the defendant. Finally, because he is asking for the equitable remedy of an injunction, he must show that the likelihood of confusion will actually cause him irreparable injury for which there is no adequate legal remedy.
To succeed in a trademark infringement claim, a party must first show that it has a protectable right in the mark and second, show that there is a likelihood of confusion. The non-exhaustive list of factors, or digits of confusion, includes: (1) the type of trademark allegedly infringed; (2) the similarity between the two marks; (3) the similarity of the products or services; (4) the identity of the retail outlets and purchasers; (5) the identity of the advertising media used; (6) the defendants’ intent; and (7) any evidence of actual confusion. Brennan’s, Inc. v. Bert Clark Brennan; Blake W. Brennan, 289 Fed. Appx. 706; .S. App. LEXIS 16890.
Wednesday, September 16, 2009
Fathers Have Rights – Establishing Paternity
Paternity is defined as the quality or state of being a father. Many issues arise in the face of a father being denied access to his child or wondering if he is truly the child’s father. Where paternity of a child is in question, a mother or alleged father may ask the court to determine paternity of one or several possible fathers.
Most paternity actions involve a child born out of wedlock. However, paternity actions also occur between married persons where someone other than the husband is the father of the child, or where the husband has fathered a child outside of the marriage. There is a presumption that a child born to a married woman is the child of the husband. However, this presumption can be overcome by DNA or other valid evidence.
If you are questioning paternity, think about when the child could have been conceived. Consider when you had relevant or timely intercourse. Understand that paternity is determined by testing DNA from the father and the mother through the use of genetic fingerprinting. DNA testing is done by drawing blood or by taking a buccal swab, when cells are wiped from the inside of the mouth with a cotton swab. These tests can determine the father of a child with up to 99% accuracy. DNA testing is currently the most advanced and accurate technology to determine parentage. Generally paternity testing is paid for by the father.
If you file a paternity suit, you can request the court order DNA testing. A court may order the mother, father and the child to submit to testing. Paternity testing can be done during pregnancy or when the child is as young as one day old.
Paternity proceedings can be filed by the alleged father, mother, child or child support division of a state. A private action for paternity is usually prosecuted to secure child support payments from the father, parenting time with the child, and/or fair rights and privilege allocation.
Some men are confident that they are the biological father and wish to maintain a legal relationship with the child whether or not they are the father and thus either initiate paternity actions or consent to the entry of a paternity order. The paternity order entitles the father to visitation time with the child and creates a legal duty for the father to provide for the support of the child in addition to awarding him rights and privileges regarding the child’s future development.
When you consent to the entry of a paternity order, absent fraud, you consent for life. Most jurisdictions will not allow you to escape the consequences of that order, including the requirement of payment for the support of the child. If there is a chance that you will resent the child, or wish to break off the relationship with the child or, if you ultimately learn that you are not the child’s biological father, make certain you obtain a DNA test before legally admitting and therefore confirming that you are a child’s father.
Custody of a child can either be awarded to the father or the mother in a paternity action depending on the facts. Child support in a paternity action is generally set according to state law standards unless the parties sign an agreement providing for the payment of child support that is approved by the court.
Reasons to establish paternity: to provide the child with a needed identity; to confirm rights, privileges and duties of a parent; to know the health history of both the mother and father for medical care and treatment of a child; establish financial support for the child; establish health insurance coverage, social security eligibility, inheritance and other benefits; and seek public assistance where qualified.
Most paternity actions involve a child born out of wedlock. However, paternity actions also occur between married persons where someone other than the husband is the father of the child, or where the husband has fathered a child outside of the marriage. There is a presumption that a child born to a married woman is the child of the husband. However, this presumption can be overcome by DNA or other valid evidence.
If you are questioning paternity, think about when the child could have been conceived. Consider when you had relevant or timely intercourse. Understand that paternity is determined by testing DNA from the father and the mother through the use of genetic fingerprinting. DNA testing is done by drawing blood or by taking a buccal swab, when cells are wiped from the inside of the mouth with a cotton swab. These tests can determine the father of a child with up to 99% accuracy. DNA testing is currently the most advanced and accurate technology to determine parentage. Generally paternity testing is paid for by the father.
If you file a paternity suit, you can request the court order DNA testing. A court may order the mother, father and the child to submit to testing. Paternity testing can be done during pregnancy or when the child is as young as one day old.
Paternity proceedings can be filed by the alleged father, mother, child or child support division of a state. A private action for paternity is usually prosecuted to secure child support payments from the father, parenting time with the child, and/or fair rights and privilege allocation.
Some men are confident that they are the biological father and wish to maintain a legal relationship with the child whether or not they are the father and thus either initiate paternity actions or consent to the entry of a paternity order. The paternity order entitles the father to visitation time with the child and creates a legal duty for the father to provide for the support of the child in addition to awarding him rights and privileges regarding the child’s future development.
When you consent to the entry of a paternity order, absent fraud, you consent for life. Most jurisdictions will not allow you to escape the consequences of that order, including the requirement of payment for the support of the child. If there is a chance that you will resent the child, or wish to break off the relationship with the child or, if you ultimately learn that you are not the child’s biological father, make certain you obtain a DNA test before legally admitting and therefore confirming that you are a child’s father.
Custody of a child can either be awarded to the father or the mother in a paternity action depending on the facts. Child support in a paternity action is generally set according to state law standards unless the parties sign an agreement providing for the payment of child support that is approved by the court.
Reasons to establish paternity: to provide the child with a needed identity; to confirm rights, privileges and duties of a parent; to know the health history of both the mother and father for medical care and treatment of a child; establish financial support for the child; establish health insurance coverage, social security eligibility, inheritance and other benefits; and seek public assistance where qualified.
Wednesday, August 26, 2009
Debt Recovery Concerns
Awarding credit is a fundamental facet of American finance and worldwide business. It helps nascent companies get off the ground by providing vital capital, which in turn allows the economy to grow and business opportunities to be created. There is, however, another side to credit funding. The very nature of an individual or a company creating debt to obtain needed capital creates short and long term problems. While companies hope that their business plan is solid and promising enough to achieve cash flow and growth while allowing for repayment of their debts, the fact is that sometimes credit-driven investments do not create projected returns, making for a potentially unpleasant situation for borrowers and lenders alike. When debtors fail to repay debt as promised, more often than not the creditor will have multiple remedies under state and federal law.
During a prolonged economic recession such as the one we are now experiencing, there is a noted increase in both the frequency and promptness of debt collection. As lending companies are themselves not immune to the current recession, timely recovery of past due sums is becoming an increasingly critical consideration. Following a default, lenders should pursue reimbursement within whatever timeframe is appropriate under then relevant circumstances. Regardless of whether or not your decision comes at an inconvenient time for the indebted party, the fact remains that a lender has rights that permit prompt recovery to effectively carry out their business.
In order to properly ensure that delinquent sums due are eventually received, two useful allies are reputable debt collectors/debt collection agencies and attorneys with experience in credit/debt resolution, bankruptcy, or related areas. The two will often work in collaboration, as legal enforcement may be necessary to bring about prompt settlement. It is recommended that the debt collector you retain be local to the area where your debtor is located, as often times localized nuances of business procedures, federal, state, and city statutes, etc. can limit the effectiveness of collectors based elsewhere who are likely to be less familiar with these statutory obligations. Your attorney should be licensed in the state of the debtor.
Significantly, one must address missed payments promptly, and give careful consideration to elevating your collection efforts by turning to legal and financial professionals. Many of the rules and laws at work in the field of credit lending are highly complex, greatly increasing the possibility of errors without third party assistance. Following default, the longer you wait to take action, the more complicated the collection process can become while lowering the prognosis for successful recovery. While not all delinquent payments are the result of intentional nonpayment, the majority of them are, calling for prompt action to avoid “stale claims.” Generally, if you feel as though legal action is the next necessary step, this is very likely the case.
By Alexander Newgard, Administrative Clerk, The Nacol Law Firm PC
During a prolonged economic recession such as the one we are now experiencing, there is a noted increase in both the frequency and promptness of debt collection. As lending companies are themselves not immune to the current recession, timely recovery of past due sums is becoming an increasingly critical consideration. Following a default, lenders should pursue reimbursement within whatever timeframe is appropriate under then relevant circumstances. Regardless of whether or not your decision comes at an inconvenient time for the indebted party, the fact remains that a lender has rights that permit prompt recovery to effectively carry out their business.
In order to properly ensure that delinquent sums due are eventually received, two useful allies are reputable debt collectors/debt collection agencies and attorneys with experience in credit/debt resolution, bankruptcy, or related areas. The two will often work in collaboration, as legal enforcement may be necessary to bring about prompt settlement. It is recommended that the debt collector you retain be local to the area where your debtor is located, as often times localized nuances of business procedures, federal, state, and city statutes, etc. can limit the effectiveness of collectors based elsewhere who are likely to be less familiar with these statutory obligations. Your attorney should be licensed in the state of the debtor.
Significantly, one must address missed payments promptly, and give careful consideration to elevating your collection efforts by turning to legal and financial professionals. Many of the rules and laws at work in the field of credit lending are highly complex, greatly increasing the possibility of errors without third party assistance. Following default, the longer you wait to take action, the more complicated the collection process can become while lowering the prognosis for successful recovery. While not all delinquent payments are the result of intentional nonpayment, the majority of them are, calling for prompt action to avoid “stale claims.” Generally, if you feel as though legal action is the next necessary step, this is very likely the case.
By Alexander Newgard, Administrative Clerk, The Nacol Law Firm PC
Friday, August 21, 2009
Active Military Duty: How Will It Affect My Relationship With My Child?
Beginning September 1, 2009, under new Texas legislation the courts have a right to temporarily amend certain existing orders concerning a parent who is ordered to military deployment, military mobilization or temporary military duty.
If a conservator is ordered to military deployment, military mobilization, or temporary military duty that involves moving a substantial distance from the conservator’s residence so as to materially affect the conservator’s ability to exercise the conservator’s rights and duties in relation to his or her child, either conservator may file for an order under subchapter (a) of Section 153.702 of the Texas Family Code.
The Court may then render a temporary order in a proceeding under this subchapter regarding:
1. possession of or access to the child; or
2. child support.
A temporary order of the court under this subchapter may grant rights to and impose duties on a designated person (with certain limitations) regarding the child, except the court may not require the designated person to pay child support.
After a conservator’s military deployment, military mobilization, or temporary military duty is concluded, and the conservator returns to the conservator’s usual residence, the temporary orders under this section terminate and the rights of all affected parties are governed by the terms of any court order that was applicable before the conservator was not ordered to military deployment, military mobilization, or temporary military duty.
Further, if the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may order appointment of a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference:
1. the conservator who does not have the exclusive right to designate the primary residence of the child;
2. if appointing the conservator described by Subdivision (1) is not in the child’s best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or
3. if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child’s best interest, another person chosen by the court.
A designated person named in a temporary order rendered under this section has the rights and duties of a nonparent appointed as sole managing conservator under Section 153.371 of the Texas Family Code.
The court may limit or expand the rights of a nonparent named as a designated person in a temporary order rendered under this section as appropriate for the best interest of the child.
If the court appoints the conservator without the exclusive right to designate the primary residence of the child, the court may award visitation with the child to a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child.
1. The periods of visitation shall be the same as the visitation to which the conservator without the exclusive right to designate the primary residence of the child was entitled under the court order in effect immediately before the date the temporary order.
2. The temporary order for visitation must provide that:
a. the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator without the exclusive right to designate the primary residence of the child is entitled under the court order in effect immediately before the date of temporary order.
b. the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316(a) with the designated person considered for purposes of that section to be the possessory conservator;
c. the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and
d. the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
3. The court may limit or expand the rights of a nonparent designated person named in a temporary order under this section as appropriate for the best interest of the child.
If the parent without exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may award visitation with the child to a designated person chosen by such conservator if the visitation is in the best interest of the child.
The temporary order for visitation must provide that:
1. the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator described by Subsection (a) would be entitled if not ordered to military deployment, military mobilization, or temporary military duty;
2. the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;
3. the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the designated person has possession of the child; and
4. the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
The court may limit or expand the rights of a nonparent designated person named in a temporary order under this section as appropriate and as is in the best interest of the child.
If a conservator is ordered to military deployment, military mobilization, or temporary military duty that involves moving a substantial distance from the conservator’s residence so as to materially affect the conservator’s ability to exercise the conservator’s rights and duties in relation to his or her child, either conservator may file for an order under subchapter (a) of Section 153.702 of the Texas Family Code.
The Court may then render a temporary order in a proceeding under this subchapter regarding:
1. possession of or access to the child; or
2. child support.
A temporary order of the court under this subchapter may grant rights to and impose duties on a designated person (with certain limitations) regarding the child, except the court may not require the designated person to pay child support.
After a conservator’s military deployment, military mobilization, or temporary military duty is concluded, and the conservator returns to the conservator’s usual residence, the temporary orders under this section terminate and the rights of all affected parties are governed by the terms of any court order that was applicable before the conservator was not ordered to military deployment, military mobilization, or temporary military duty.
Further, if the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may order appointment of a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference:
1. the conservator who does not have the exclusive right to designate the primary residence of the child;
2. if appointing the conservator described by Subdivision (1) is not in the child’s best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or
3. if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child’s best interest, another person chosen by the court.
A designated person named in a temporary order rendered under this section has the rights and duties of a nonparent appointed as sole managing conservator under Section 153.371 of the Texas Family Code.
The court may limit or expand the rights of a nonparent named as a designated person in a temporary order rendered under this section as appropriate for the best interest of the child.
If the court appoints the conservator without the exclusive right to designate the primary residence of the child, the court may award visitation with the child to a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child.
1. The periods of visitation shall be the same as the visitation to which the conservator without the exclusive right to designate the primary residence of the child was entitled under the court order in effect immediately before the date the temporary order.
2. The temporary order for visitation must provide that:
a. the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator without the exclusive right to designate the primary residence of the child is entitled under the court order in effect immediately before the date of temporary order.
b. the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316(a) with the designated person considered for purposes of that section to be the possessory conservator;
c. the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and
d. the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
3. The court may limit or expand the rights of a nonparent designated person named in a temporary order under this section as appropriate for the best interest of the child.
If the parent without exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may award visitation with the child to a designated person chosen by such conservator if the visitation is in the best interest of the child.
The temporary order for visitation must provide that:
1. the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator described by Subsection (a) would be entitled if not ordered to military deployment, military mobilization, or temporary military duty;
2. the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;
3. the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the designated person has possession of the child; and
4. the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.
The court may limit or expand the rights of a nonparent designated person named in a temporary order under this section as appropriate and as is in the best interest of the child.
Child Custody: Staying Close to Your Kids
When a custody lawsuit commences, parents need to be thinking primarily about what is in the best interest of the child(ren). The needs and rights of the child(ren) are of paramount importance in a child custody case and the court’s primary focus.
In accordance with Section 153.002 of the Texas Family Code, parents are ordinarily considered to be equal in their right to parent their child(ren). It is the best interests of the child(ren) that are paramount, and the aim of the Texas Family Code is to:
1. Assure that child(ren) will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child(ren);
2. Provide a safe, stable, and non-violent environment for the child(ren); and
3. Encourage parents to share in the rights and duties of raising their child(ren) after the parents have separated or dissolved their marriage.
If you are a parent who is preparing for a custody battle, you would do well to make this your primary goal throughout the litigation.
Vengeful parents often engage in destructive conduct by trying to move out of state in an attempt to separate the child(ren) geographically from the non-custodial parent. If vengeance is the custodial parent’s primary motive, this has many benefits: it becomes more difficult for the non-custodial parent to exercise visitation, and at the same time makes it more difficult (and expensive) for the non-custodial parent to seek relief through the courts for denied visitation or other wrongful acts by the custodial parent. A move-away, depending upon distance, can also isolate the child(ren) from the non-custodial parent. If you suspect your spouse may do this, you need to be prepared and act proactively. A key item to have incorporated into final paperwork is an “anti-move-away” clause. Essentially, this states that if the custodial parent moves more than a certain number of miles away, custody changes to the remaining parent and/or restricting the permanent domicile of the child(ren) to designated counties.
Stay meaningfully involved in your child(ren)’s lives on a regular and continuing basis. Being heavily involved with your child(ren) for very short periods of time will not bring favor in the eyes of the court.
Keep a detailed record or diary of the details of how much you have been involved with your child(ren)’s school and extracurricular activities. Attend school meetings. Take pictures. Schedule family vacations. Visit relatives and friends and schedule sleepovers with your child(ren)’s peers. Take your child(ren) to the dentist and the doctor. Don’t spoil your child(ren), reasonably discipline your child(ren) when necessary and document why you took such action. Take advantage of extra time extended you by your spouse and try to extend visitation when possible if only for a couple of hours. Initiate and support birthdays, school activities, and college requirements. Document all relevant case issues and facts.
Keep in mind that your child(ren) are not equipped to deal with the range of emotions experienced by an adult, and that ventilating your personal difficulties on them is not only unhelpful, but can be a form of abuse and can create lasting emotional scars and is viewed with disfavor in the courthouse.
Parents preparing for custody cases before the court in Texas must be mindful of the extraordinary damage they can do when denigrating the other spouse in front of their child(ren). Such behavior is not only damaging to the child(ren), but may and usually will, be taken into consideration by the court. A noticeable failure to maintain self-control may be considered an indicator of an inability to parent.
If you can remain involved in your child(ren)’s lives enough to find out how his or her relationship is with your former spouse, you may be able to build a better case to show the court you are the better custodial parent, and in the meantime productively provide for your child(ren) in his or her best interest.
In accordance with Section 153.002 of the Texas Family Code, parents are ordinarily considered to be equal in their right to parent their child(ren). It is the best interests of the child(ren) that are paramount, and the aim of the Texas Family Code is to:
1. Assure that child(ren) will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child(ren);
2. Provide a safe, stable, and non-violent environment for the child(ren); and
3. Encourage parents to share in the rights and duties of raising their child(ren) after the parents have separated or dissolved their marriage.
If you are a parent who is preparing for a custody battle, you would do well to make this your primary goal throughout the litigation.
Vengeful parents often engage in destructive conduct by trying to move out of state in an attempt to separate the child(ren) geographically from the non-custodial parent. If vengeance is the custodial parent’s primary motive, this has many benefits: it becomes more difficult for the non-custodial parent to exercise visitation, and at the same time makes it more difficult (and expensive) for the non-custodial parent to seek relief through the courts for denied visitation or other wrongful acts by the custodial parent. A move-away, depending upon distance, can also isolate the child(ren) from the non-custodial parent. If you suspect your spouse may do this, you need to be prepared and act proactively. A key item to have incorporated into final paperwork is an “anti-move-away” clause. Essentially, this states that if the custodial parent moves more than a certain number of miles away, custody changes to the remaining parent and/or restricting the permanent domicile of the child(ren) to designated counties.
Stay meaningfully involved in your child(ren)’s lives on a regular and continuing basis. Being heavily involved with your child(ren) for very short periods of time will not bring favor in the eyes of the court.
Keep a detailed record or diary of the details of how much you have been involved with your child(ren)’s school and extracurricular activities. Attend school meetings. Take pictures. Schedule family vacations. Visit relatives and friends and schedule sleepovers with your child(ren)’s peers. Take your child(ren) to the dentist and the doctor. Don’t spoil your child(ren), reasonably discipline your child(ren) when necessary and document why you took such action. Take advantage of extra time extended you by your spouse and try to extend visitation when possible if only for a couple of hours. Initiate and support birthdays, school activities, and college requirements. Document all relevant case issues and facts.
Keep in mind that your child(ren) are not equipped to deal with the range of emotions experienced by an adult, and that ventilating your personal difficulties on them is not only unhelpful, but can be a form of abuse and can create lasting emotional scars and is viewed with disfavor in the courthouse.
Parents preparing for custody cases before the court in Texas must be mindful of the extraordinary damage they can do when denigrating the other spouse in front of their child(ren). Such behavior is not only damaging to the child(ren), but may and usually will, be taken into consideration by the court. A noticeable failure to maintain self-control may be considered an indicator of an inability to parent.
If you can remain involved in your child(ren)’s lives enough to find out how his or her relationship is with your former spouse, you may be able to build a better case to show the court you are the better custodial parent, and in the meantime productively provide for your child(ren) in his or her best interest.
Wednesday, August 12, 2009
BY ALL MEANS STOP THE FORECLOSURE
Given the current state of affairs with regard to lenders, mortgagees, loan servicing agencies, collection agencies and the like with respect to home or business mortgages, it is frequently impossible to determine with whom you are speaking, what authority they have and what remedies they are actually capable of agreeing to in a home or business loan dispute. Indeed, frequently the actual owner of the debt is so lost in cybernetic space on Wall Street that a signature cannot even be produced to consummate a valid foreclosure.
I frequently speak with people whose loans have been overcharged or convoluted under the guise of late payments and fees, penalty interest, attorney’s fees, reinstatement fees and the like when in fact payments are current or the delay in receipt is due to the bookkeeping errors or computer generated nightmares which frequently exist at mortgage companies and/or servicing lenders. Clients are lost in the backlog of understaffed and overworked mortgage companies who simply make entries that are either late, erroneous, unjustified or not representative of the actual payments that have been submitted to them by the borrowers/homeowners.
The lenders then, usually through computer generated directives, retain attorneys and foreclose or simply foreclose through the existing trustees or substitute trustees when, in point of fact, the loan is current or if it is not current, the disputed sums claimed or their timeliness it is not the fault of the borrower.
It is critical that a homeowner in this situation make an immediate effort to get a court order enjoining the foreclosure before the foreclosure occurs. There are a myriad of legal rights, remedies, defenses and claims that are either lost or seriously watered down when asserted after the foreclosure sale occurs. It is far easier to put the dry spaghetti in stacks and separate it as appropriate than to try to unravel the spaghetti once it has been cooked. Lenders who proceed with foreclosure are by deed granted legal title, or title is passed to a third party purchaser by virtue of the loan documents and the foreclosure sale. This makes it more difficult for an attorney to enforce the rights of the borrower given the claims, expense and costs of the third parties, tying your lawyer’s hands to some degree in what he is capable of doing for you to save your home or business property.
A temporary restraining order injunction upon proper affidavit with sufficient facts is in most cases granted allowing a home or business owner to enforce his claims against the lender or mortgage company while retaining title to the property during the litigation process which can take anywhere from thirty days to three years depending on the court, the county and the jurisdiction.
It is not uncommon for the court to order the borrower to pay all payments into the court registry or an escrow fund where a true and honest accounting of what is being paid while the case is pending can be applied to the final judgment of the court. If the borrower/homeowner’s case has merit and the lender is in breach, state law permits the payment of attorney’s fees in addition to the claims for fees which are ordinarily authorized in form loan documents which puts added pressure on the lender/mortgagee to come to the table and settle the matter based on the actual facts of the case. However, these efforts are hampered greatly if the foreclosure has already occurred. Remember also that a lawyer needs, depending on the court and jurisdiction, enough time in advance of the foreclosure sale date to prepare a petition, temporary restraining order, and request for injunctive relief and/or claim for damages as the case may be in order to properly enforce the rights of the client.
Sadly enough, it is not uncommon for the first words of the client to be “They foreclosed on my house and all my payments are current, what are we going to do now?” The regrettable answer is, we are going to have to set aside the foreclosure and reverse all the legal title convoluted actions which have occurred by virtue of the Trustee Sale, in addition to making a legal effort to reinstate the loan. In most cases this is far more expensive to the client in attorney’s fees, time and consternation than simply preventing the sale in the first place by injunction.
I frequently speak with people whose loans have been overcharged or convoluted under the guise of late payments and fees, penalty interest, attorney’s fees, reinstatement fees and the like when in fact payments are current or the delay in receipt is due to the bookkeeping errors or computer generated nightmares which frequently exist at mortgage companies and/or servicing lenders. Clients are lost in the backlog of understaffed and overworked mortgage companies who simply make entries that are either late, erroneous, unjustified or not representative of the actual payments that have been submitted to them by the borrowers/homeowners.
The lenders then, usually through computer generated directives, retain attorneys and foreclose or simply foreclose through the existing trustees or substitute trustees when, in point of fact, the loan is current or if it is not current, the disputed sums claimed or their timeliness it is not the fault of the borrower.
It is critical that a homeowner in this situation make an immediate effort to get a court order enjoining the foreclosure before the foreclosure occurs. There are a myriad of legal rights, remedies, defenses and claims that are either lost or seriously watered down when asserted after the foreclosure sale occurs. It is far easier to put the dry spaghetti in stacks and separate it as appropriate than to try to unravel the spaghetti once it has been cooked. Lenders who proceed with foreclosure are by deed granted legal title, or title is passed to a third party purchaser by virtue of the loan documents and the foreclosure sale. This makes it more difficult for an attorney to enforce the rights of the borrower given the claims, expense and costs of the third parties, tying your lawyer’s hands to some degree in what he is capable of doing for you to save your home or business property.
A temporary restraining order injunction upon proper affidavit with sufficient facts is in most cases granted allowing a home or business owner to enforce his claims against the lender or mortgage company while retaining title to the property during the litigation process which can take anywhere from thirty days to three years depending on the court, the county and the jurisdiction.
It is not uncommon for the court to order the borrower to pay all payments into the court registry or an escrow fund where a true and honest accounting of what is being paid while the case is pending can be applied to the final judgment of the court. If the borrower/homeowner’s case has merit and the lender is in breach, state law permits the payment of attorney’s fees in addition to the claims for fees which are ordinarily authorized in form loan documents which puts added pressure on the lender/mortgagee to come to the table and settle the matter based on the actual facts of the case. However, these efforts are hampered greatly if the foreclosure has already occurred. Remember also that a lawyer needs, depending on the court and jurisdiction, enough time in advance of the foreclosure sale date to prepare a petition, temporary restraining order, and request for injunctive relief and/or claim for damages as the case may be in order to properly enforce the rights of the client.
Sadly enough, it is not uncommon for the first words of the client to be “They foreclosed on my house and all my payments are current, what are we going to do now?” The regrettable answer is, we are going to have to set aside the foreclosure and reverse all the legal title convoluted actions which have occurred by virtue of the Trustee Sale, in addition to making a legal effort to reinstate the loan. In most cases this is far more expensive to the client in attorney’s fees, time and consternation than simply preventing the sale in the first place by injunction.
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