President’s Day Holiday Parenting Time

February 15th, 2017

por_Trisha

Author: Trisha Dudlo (bio)

Phone: 812.452.3521

Email: [email protected]

According to the 2013 Indiana Parenting Time Guidelines, if the child’s school observes the holiday, the custodial parent will have parenting time this year from Friday at 6:00 p.m. until Monday at 7:00 p.m.

The noncustodial parent exercises this same parenting time in even numbered years.

Please refer to your Court Order to determine whether you follow the 2013 Indiana Parenting Time Guidelines or an earlier version or whether you have a different schedule altogether for holiday parenting time.

You Don’t Have To Be A Criminal To Have A Criminal Record

February 14th, 2017

por_Dudlo_RayAuthor: Raymond P. Dudlo (bio)

Phone: 812.452.3529

Email: [email protected]

All criminal cases are public record. Even those cases that did not result in a conviction remain publicly accessible. Consequently, if you have ever been charged with a crime in Indiana but you engaged in a deferral program, or the case was dismissed, or even if you were found not guilty, that criminal case still shows up in your criminal history. People often believe that if they completed a deferral program they have no criminal history. Unfortunately, this is not true.

Although there is a sizable difference between a criminal conviction and a criminal charge, public perception rarely differentiates the two. Take for example a 25-year-old getting ready to enter the professional workforce. When he was 18 he was charged with possession of an illegal substance, but he successfully completed a deferral program and no conviction was entered. When he was 20, while at a college party where alcohol was present, he was charged with drinking alcohol under the legal age limit. Through a probation program, he stayed out of trouble for one year and the charge was later dismissed. This person was never found guilty of any crime. However, when his potential new employer pulled his criminal history he found that he had two cases filed against him, and without delving into the details the employer looks at the other applicants who have no record. This example illustrates why a person without a criminal conviction record should seek to expunge their criminal record.

Indiana’s sealing and expungement statutes allow individuals who have been convicted of certain crimes to wipe their record clean. However, those same statutes can be utilized to clean up someone’s criminal record that only contain charges and no convictions. In fact, unlike expunging a criminal conviction, expunging criminal records which did not lead to a conviction have fewer restrictions and are, therefore, easier to obtain. If you, or someone you know, were charged with a crime and would like a cleaned record, you will need to seek a qualified attorney who can advise you on your rights and options.

This article is intended for educational purposes only. By reading our blog, you understand there is no attorney-client relationship created between you and Bamberger, Foreman, Oswald & Hahn, LLP. It is not a substitute for legal advice from a licensed professional attorney in your state or jurisdiction. Please seek advice from an attorney before taking any legal action.

Bamberger, Foreman, Oswald & Hahn, LLP is located at 20 N.W. Fourth Street, Evansville, IN 47708.

The Trouble With Too Much Information

January 17th, 2017

1por_Scott_Laura_AAuthor: Laura A. Scott (bio)

Phone: 812.452.3557

Email: [email protected]

In a case that was recently decided, a debtor challenged a description in a Financing Statement that described the collateral as “all assets, including but not limited to inventory, accounts and equipment located at 123 Main Street.” Unfortunately for the bank, there were not assets of the debtor located at 123 Main Street. The debtor contended later that the words “located at 123 Main Street” were meant to modify the all assets descriptor and so only assets located at the particular location would have been included. Since no assets were located there, the bank essentially had a security interest in nothing.

The bank on the other hand pointed to the first two words in the collateral description in the Financing Statement which described the collateral as “all assets.” This super generic description is recognized in the Uniform Commercial Code as being sufficient to perfect a security interest in literally all assets of the debtor. No further description or modification is necessary. The court concluded that since the super generic “all assets” descriptor was used, the remainder of the words, including the words “located at 123 Main Street,” were all categories of assets that were included within the broader definition of “all assets.” The later words did not restrict the all assets description, they simply served to further illustrate some of the categories of collateral involved.

While this case was decided in favor of the bank, banks need to be warned not to create confusion in collateral descriptions by including too much information when none is necessary. Banks also need to be aware that while a super generic “all assets” description is sufficient in a Financing Statement, using only the words “all assets” in a Security Agreement is not sufficient. The categories of collateral under the Uniform Commercial Code must be spelled out in the Security Agreement, even though that level of detail is not necessary in the Financing Statement.

What is a Safety Plan and Should I Sign It?

January 10th, 2017

por_Dudlo_RayAuthor: Raymond P. Dudlo (bio)

Phone: 812.452.3529

Email: [email protected]

If you are ever contacted by the Indiana Department of Child Services (DCS), you should know your rights and what to expect. A DCS investigation can be a very intimidating process, and interaction with DCS can be frustrating and confusing. A knowledgeable attorney can help you navigate the DCS process and ensure you are making the right decisions.

DCS will often ask families to sign a “Safety Plan” that typically include agreements not to engage in certain inappropriate behaviors. This can include simple statements such as: The parents agree not to engage in DV (domestic violence). Such basic statements often seem harmless and are unlikely to lead to issues. However, a Safety Plan is, nonetheless, an agreement between the individuals and DCS where the parents agree to perform certain tasks or to avoid certain behaviors. Safety Plans, like other agreements, should be considered fully before entering into them.

While DCS is often quick to tell parents and caregivers that Safety Plans are not binding, they are unlikely to advise that non-compliance with a Safety Plan can lead to problems. If a person violates a Safety Plan, DCS may consider that action as a signal that you are not compliant with their office. Any non-compliance with DCS provides the Department with an argument that if their office needs to interact with your children or your family, that such interaction requires the coercive intervention of the court. This leads a case to significant consequences.

If you are confronted with a Safety Plan, you should know that you are signing that plan voluntarily. Therefore, if the Safety Plan’s language is unclear or you do not understand the consequences of entering into the Plan, you should ask DCS for time to consider it and to have your attorney look at the document before signing.

If you are involved in any aspect with DCS, it is in your best interest to seek legal advice to understand the consequences you face.

This article is intended for educational purposes only. By reading our blog, you understand there is no attorney-client relationship created between you and Bamberger, Foreman, Oswald & Hahn, LLP. It is not a substitute for legal advice from a licensed professional attorney in your state or jurisdiction. Please seek advice from an attorney before taking any legal action.

Bamberger, Foreman, Oswald & Hahn, LLP is located at 20 N.W. Fourth Street, Evansville, IN 47708.

Federal Tax Laws May Be Trumped

December 27th, 2016

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Author: M. Beth Burger (bio)

Phone: 812.452.3523

email: [email protected]

With Donald Trump’s election as our 45th President of the United States comes potential for major changes to the federal tax laws. The goals of Donald Trump’s tax plan are to “reduce taxes across-the-board” and to simplify the tax laws. Since Trump will be coming into office with Republican majorities in both the House and the Senate who are also in favor of reducing and simplifying taxes, the likelihood of tax cuts is strong.

With regard to the individual income taxes, Trump proposes to reduce the number of income tax brackets from seven to three, with the highest rate at 33% (as opposed to the current 39.6%). He also plans to increase the standard deduction, to cap itemized deductions, and to eliminate personal exemptions and the alternative minimum tax. On the corporate side, President-elect Trump proposes to reduce income tax rates from 35% to 15%. His tax plan also proposes to allow pass-through entities, such as partnerships and S-corporations, to be taxed at this lower rate, as opposed to the higher individual income tax rates.

A key component of President-elect Trump’s tax plan is to repeal the federal estate tax. In place of the estate tax, he proposes to tax capital gains on assets transferred to heirs at death in excess of $10 million. It is, however, unclear whether the $10 million exemption would be applied per individual or per married couple.

Trump plans to repeal all taxes associated with Obamacare, which should include the penalty for failure to purchase insurance.

Of course no one knows what the tax laws will ultimately look like when adopted, and as is typically the case with the tax plans of Presidential candidates, there are so many details that are not addressed in the Trump tax plan. What happens with the federal tax laws remains to be seen, but many commentators believe that the tax changes will likely be adopted early in the coming year. House Republicans already have a bill in concept and plan to take action within the first 100 days of the Trump administration. With so much uncertainty in the tax arena, the only certainty may be that the proposed tax changes have made it difficult for Americans to carry on planning where taxes are involved.

This article is intended for educational purposes only. By reading our blog, you understand there is no attorney-client relationship created between you and Bamberger, Foreman, Oswald & Hahn, LLP. It is not a substitute for legal advice from a licensed professional attorney in your state or jurisdiction. Please seek advice from an attorney before taking any legal action.

Bamberger, Foreman, Oswald & Hahn, LLP is located at 20 N.W. Fourth Street, Evansville, IN 47708.

All I Want for Christmas is a Clean Record

December 23rd, 2016

por_Dudlo_Ray
Author: Raymond P. Dudlo (bio)

Phone: 812.452.3529

Email: [email protected]

From students to professionals, criminal records can have a serious impact on one’s life. Criminal records may prevent admission or make applications to schools or various educational programs difficult. Criminal records may also prevent one from obtaining employment. Thankfully, Indiana’s sealing and expungement statutes provide a path for many people with a criminal record to have a clean start.

Indiana’s sealing and expungement statutes provide you a path to obtain a clean record, and these laws also protect you from discrimination. With few exceptions, once a person obtains an expungement of their criminal records, their civil rights are restored, including the right to vote, to hold public office, and to serve as a juror. Additionally, in Indiana, it is unlawful to discriminate against any person who has received an expungement by suspending; expelling; refusing to employ; refusing to admit; refusing to grant or renew a license, permit or certificate necessary to engage in any activity, occupation, or profession; or otherwise discriminate against that person because of their expungement. These laws are very helpful to people who are burdened by their criminal history.

If you or someone you know has a criminal history, you should seek a knowledgeable attorney to help determine your eligibility for an expungement.

This article is intended for educational purposes only. By reading our blog, you understand there is no attorney-client relationship created between you and Bamberger, Foreman, Oswald & Hahn, LLP. It is not a substitute for legal advice from a licensed professional attorney in your state or jurisdiction. Please seek advice from an attorney before taking any legal action.

Bamberger, Foreman, Oswald & Hahn, LLP is located at 20 N.W. Fourth Street, Evansville, IN 47708.

Beware of Seller Demands for Pre-Payment in Full

December 13th, 2016

A common term in some sales contracts is to indicate that title to a purchased item will transfer to Buyer upon the earlier of buyer’s payment or delivery to buyer. It is understandable that a seller would want to collect payment in full for an item before it released possession of the item. However, this situation does not adequately protect the buyer who has paid for the item in full but has not yet taken delivery of the item. In this situation, the buyer’s title to the item paid for is at risk of being trumped by the rights of any security interests in the item held by seller’s creditor.

A buyer only becomes a buyer in the ordinary course of business (taking free of the buyer’s creditor’s security interest) when the buyer takes possession of the item. Prepayment for the item does not change the analysis. Therefore, buyers should be hesitant to pay for items in full prior to taking delivery of the item and, similarly, buyers should avoid prepaying for items to be delivered later. In either situation if something happens with the seller prior to the time that the item is delivered, the seller’s secured creditor would have a security interest in the item, since the item remains in the seller’s inventory until the time that it is delivered to the buyer. If the seller defaults in its obligation to the secured creditor, the secured creditor could take this item and liquidate it, leaving the buyer with nothing but a claim against the seller for money paid for a product never received. Assuming that the secured creditor took possession of the item because the seller was in financial difficulty, it is unlikely that the buyer would be able to recover anything on its claim against the seller. There are other ways for a seller to protect its rights to payment aside from requiring pre-payment, therefore a buyer should be beware of paying in full for an item before it has received delivery. An unwary buyer could end up being both without the item it paid for and the money paid.

Author: Laura A. Scott (bio)

Phone: 812.452.3557

Email: [email protected]

Indiana Court Limits Claims for Injuries Resulting from Sporting Events

November 17th, 2016

1por_Welp_Douglas_AAuthor: Doug Welp (bio)
Phone: 812.452.3547
Email: [email protected]

A recent Indiana Court of Appeals case decided November 15, 2016, Wooten v. Caesar’s Riverboat Casino, LLC, clarified the law regarding a person’s ability to sue for an injury sustained while engaged in a sport.

The 2016 case involved two golf carts colliding in a fairway while the golfers looked for their golf balls. One of the golfers claimed an injury arising from the collision. The 2016 case affirmed Indiana law holding a negligence claim will not lie against a participant in a sports activity, if the conduct complained of is within the range of ordinary behavior of participants in the sport.

The 2016 case reviewed a 2011 case involving a golfer hitting an errant tee shot, which struck a 16-year-old beverage cart driver in the mouth causing severe injuries. In the 2011 case, the Court held that hitting an errant tee shot and yelling “fore” or the failure to do so, fell within the range of ordinary behavior for golfers, and the court dismissed the beverage cart driver’s negligence claim against the golfer.

Likewise, in a 2011 case involving a Little League mom who was hit in the knee by a young batter taking practice swings outside the dugout, the court dismissed the mom’s negligence claim, holding that she incurred the risk of injury when she stood in the area between the dugout and the opening in the fence. The Court further held that the mom’s injury was due to risks inherent in the sporting event, and dismissed the negligence claim against the Little League player.

Indiana courts do hold that if a participant engages in an intentional or reckless behavior, causing injury to another participant or bystander, a negligence claim might not be so easily dismissed. But if a defendant can show his activities were within the normal course of behavior for participants in a given sport, and the person bringing the claim fails to bring evidence of recklessness or intent, an Indiana court is likely to dismiss the case.

Play on!

This article is intended for educational purposes only. By reading our blog, you understand there is no attorney-client relationship created between you and Bamberger, Foreman, Oswald & Hahn, LLP. It is not a substitute for legal advice from a licensed professional attorney in your state or jurisdiction. Please seek advice from an attorney before taking any legal action.

Bamberger, Foreman, Oswald & Hahn, LLP is located at 20 N.W. Fourth Street, Evansville, IN 47708.

Pre-Filed Financing Statements

November 15th, 2016

In a recently decided case, a bank’s financing statement filed without authorization was found to be valid. In this case, an over anxious bank had filed a UCC Financing Statement one day before the debtor signed the Security Agreement which authorized the filing of the Financing Statement. Later on, after default, the debtor challenged the validity of the Financing Statement on the basis that the Financing Statement had not been authorized by the debtor when it was filed. The court sided with the bank and determined that the Security Agreement signed later ratified the actions of the bank in pre-filing the UCC Financing Statement. Therefore, the Financing Statement was valid.

While it is a common practice to wait to file the UCC Financing Statement until closing, after the Security Agreement has been signed, it is not unusual for a bank to go ahead and file a Financing Statement prior to closing if the bank is certain that the Security Agreement will be signed. However, the best practice for a bank to follow if it wishes to pre-file a Financing Statement prior to closing, is for the bank to get the debtor’s prior authorization to pre-file the Financing Statement. While the Financing Statement would not be valid if the loan failed to close, the bank still could cause potential damage to the proposed debtor by filing the Financing Statement if no authorization is obtained later.

Author: Laura A. Scott (bio)

Phone: 812.452.3557

Email: [email protected]

Happy Thanksgiving

November 1st, 2016

por_Trisha

Author: Trisha Dudlo (bio)

Phone: 812.452.3521

Email: [email protected]

According to the 2013 Indiana Parenting Time Guidelines, the noncustodial parent will exercise parenting time for the Thanksgiving holiday this year. The noncustodial parent will exercise parenting time from 6:00 P.M. on Wednesday until 7:00 P.M. on Sunday.

The custodial parent exercises this same parenting time in odd numbered years.
Please refer to your Court Order to determine whether you follow the 2013 Indiana Parenting Time Guidelines or an earlier version or whether you have a different schedule altogether for Thanksgiving holiday parenting time.

Turkey