Thursday, January 10, 2013

WHAT DOCUMENTS NEED BE FILED WHEN YOU SEEK CHAPTER 13 BANKRUPTRCY. Terry Bankert Flint Bankrutpcy Attorney 235-1970


VIII.   Petition, Schedules, and Related Documents
§2.8   A voluntary bankruptcy case is commenced when a petition is filed with the bankruptcy court clerk by an individual who is eligible to be a debtor under the chapter he or she has elected. 11 USC 301;Bankruptcy Rule 1002. A joint case is commenced when a single petition is filed with the bankruptcy court by an individual who is eligible to be a debtor under the chapter he or she has elected and that individual’s spouse. 11 USC 302.
In a voluntary case, the debtor must file with the petition a list containing the name and address of each entity included or to be included on schedules D (secured creditors), E (creditors holding unsecured priority claims), F (creditors holding unsecured nonpriority claims), G (executory contracts and unexpired leases), and H (codebtors). This is also known as the “matrix.” 11 USC 521(a)(1)(A);Bankruptcy Rule 1007(a)(1). The schedules are official forms that are available online athttp://www.uscourts.gov/FormsAndFees/Forms/BankruptcyForms.aspx.
The debtor, unless the court orders otherwise, must file schedules of assets (schedules A and B) and liabilities (schedules D, E, and F), a schedule of current income (schedule I) and expenditures (schedule J), and a statement of financial affairs, prepared as prescribed by the appropriate official forms. 11 USC 521(a)(1)(B)(i)–(iv)Bankruptcy Rule 1007(b)(1).
Every debtor should file a schedule of property claimed as exempt (schedule C). Although there is an official form, neither 11 USC 521nor Bankruptcy Rule 1007 requires the filing of schedule C.
If the debtor is an individual whose debts are primarily consumer debts (defined in 11 USC 101(8) to be “debt incurred by an individual primarily for a personal, family or household purpose”), the debtor must file a certificate of an attorney whose name is indicated on the petition as the attorney for the debtor, or a bankruptcy petition preparer, indicating that such attorney or the bankruptcy petition preparer delivered the notice required by 11 USC 342(b) to the debtor. 11 USC 521(a)(1)(B)(iii)(I).
The debtor, unless the court orders otherwise, must file a schedule of executory contracts and unexpired leases (schedule G), prepared as prescribed by the appropriate official forms. Bankruptcy Rule 1007(b)(1).

Tuesday, May 18, 2010

Grandparents you have rights.

Flint Divorce Attorney Terry Bankert discusses several Issues:

Tuscola grandparents get visitation;

Flint Divorce Lawyer looks at whether the trial court properly awarded plaintiffs grandparent visitation time after the death of their son (the children's father); MCL 722.27b(1)(c);

Grand Parents Rights Lawyer reviews Whether the trial court had the authority to order grandparenting time; MCL 722.27b(3)(b); Bowman v. Coleman;

Stipulation as to visitation; Koron v. Melendy; Agreement read in open court under MCR 2.507(G); Massachusetts Indem. & Life Ins. Co. v. Thomas; Wagner v. Myers;

Whether defendant's ( mothers )due process rights were violated; Lewis v. Legrow;

Whether the plaintiffs-grandparents proved the mother s decision to lessen grandparenting time created a substantial risk of harm to the children under MCL 722.27(4)(b)

WHERE DID THIS CASE COME FROM-TUSCOLA COUNTY MI

Court: Michigan Court of Appeals (Unpublished 05/11/2010)
Case Name: McQuillan v. Sanback
Tuscola Circuit Court
LC no 08-024762-DZ
e-Journal Number: 45763
Judge(s): Per Curiam - Talbot, Fitzgerald, and M.J. Kelly

MICHIGAN COURT OF APPEALS SAYS GRANDPARENTS GET PARENTING TIME

Concluding the plaintiffs-grandparents were statutorily entitled to seek a grandparenting time order after the death of their son Joshua, the children's father, and the defendant-mother stipulated with them to the grandparenting time plan, which ostensibly worked for all parties, the court held the trial court properly entered an order memorializing the agreement and denied the mother's motion for a JNOV or new trial.

The Grandparents son died as the result of injuries sustained in a car accident.

DID YOU KNOW?“A child’s grandparent may seek a grandparenting time order . . . [if] the child’s parent who is a child of the grandparents is deceased.” MCL 722.27b(1)(c). Here, plaintiffs are the grandparents of the two minor children. Because their son is deceased, plaintiffs are entitled to seek a grandparenting time order in accordance with MCL 722.27b(1)(c).

Grand Parent Plaintiffs filed a complaint against the defendant, their daughter-in-law, seeking to establish grandparenting time with Joshua's two children.

The grand parents and the mother (parties) entered into a stipulated settlement to address grandparenting time visitation at a hearing.

DID YOU KNOW?
… an agreement that is read in open court is binding on the parties under MCR
2.507(G).1 “Judgments entered pursuant to the agreement of the parties are of the nature of a contract, rather than a judicial order entered against one party.” Massachusetts Indemnity & Life Ins Co v Thomas, 206 Mich App 265, 268; 520 NW2d 708 (1994). Absent a showing of fraud or duress, it is appropriate for a court to enforce the terms of the parties’ agreement. Id. “The litigant who so asserts to a stipulation freely entered into in open court carries a heavy burden of persuasion. Every presumption of judicial care, or professional competence, and of decretal stability is against the overthrow, in the appellate court, of such stipulation and of orders and MCR 2.507(G), formerly MCR 2.507(H) states: An agreement or consent between the parties or their attorneys respecting the proceedings in an action, subsequently denied by either party, is not binding
unless it was made in open court, or unless evidence of the agreement is in
writing, subscribed by the party against whom the agreement is offered or by that
party’s attorney. [MCR 2.507(G).]

Mom’s Attorney Defense counsel stated in open court, "It is a fair and accurate full statement of the agreement of the parties of the settlement."

After the Grandparents (plaintiffs) filed a motion for entry of an order and a hearing, an order memorializing the agreement was entered.

Later, mom changed her minds (defendant) filed a motion for JNOV or a new trial alleging she was under duress at the time she reached the settlement, she did not understand what she was agreeing to, and it was not in the children's best interest to provide the level of grandparenting time specified in the agreement.
DID YOU KNOW YOU SHOULD BE CAREFUL WHAT YOU AGREE TO.
… defendant agreed to visitation time and entered a stipulated agreement on the record. Because defendant did not deny grandparenting time, plaintiffs’ burden to overcome the presumption provided by MCL 722.27b(4)(b) was never triggered. Essentially, defendant waived this presumption by agreeing to the grandparenting visitation time stipulation. Again, defendant may not benefit from a claim of error resulting from her own conduct. See Lewis, 258 Mich App at 210.

The Tuscola Circuit Court (trial court) denied the motion, holding the defendant was bound by the agreement placed on the record and it could not change the grandparenting time order without a showing of a change of circumstances.

The Tuscola Circuit court held defendant's challenge to the trial court's authority to order grandparenting time was without merit, as were her claims her due process rights were violated, and the grandparents were seeking to control the amount of visitation they have with the children in violation of MCL 722.27b(3)(b). The Michigan Court of Appeals agreed with the Tuscola Circuit Court (Affirmed).

Posted here by
Terry Bankert
http://attorneybankert.com

Wednesday, May 12, 2010

WHAT ARE YOUR RIGHTS

GRANDPARENTS RIGHTS

5/11/2010



Grandparenting Time

Source Michigan Family Law Bench Book

A. When a Grandparent May Seek an Order



Legislation was passed in 2005 restating Grandparents rights . Under the amended statute, MCL 722.27b, a grandparent may seek grandparenting time for one of the following reasons. These elements are here restated in the form a question .



GRANDPARENTS NAME





YOUR CHILD



THE OTHER PARENT OF YOUR GRAND CHILD





THE NAME (S) OF GRAND CHILDREN.



1



2



3



4



(a) IS an action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court?

[]NO

[]YES. [] COUNTY GENESEE [] COUNTY OTHER





(b) ARE the child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled; [] NO, []YES, WHAT COUNTY







(c) IS the child’s parent who is a child of the grandparents is deceased;[]NO[]YES







(d) HAVE the child’s parents have never been married, they are not residing in the same household, and paternity has been established;[]NO[]YES







(e) HAS legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; []NO[]YES, WHO







(f) HAS THE PRANDPARENTin the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.[]NO[]YES, EXPLAIN

MCL 722.27b(1).







The statute creates a presumption that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health.

WILL THE CHILDS PARENTS OPPOSE YOUR SEEKING GRANDPARENTING TIME?[]NO[]YES, WHY















To rebut the presumption, a grandparent must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health.



WHY WOULD YOUR GRANDCHILDREN NOT SEEING YOU CAUSE HARM TO THEM? DESCRIBE,



















If the grandparent does not overcome the presumption, the court will dismiss the action. MCL 722.27b(4)(b). The court may also dismiss the action if two fit parents sign an affidavit stating that they both oppose an order for grandparenting time. MCL 722.27b(5).

To ensure that the statute is not found unconstitutional, the legislature included an alternative burden of proof. If the current preponderance of the evidence test is successfully challenged in an appellate court, the statute will convert to a clear and convincing evidence test. MCL 722.27b(4)(c).

The statute survived an as-applied constitutional challenge in Keenan v Dawson, 275 Mich App 671, 739 NW2d 681 (2007) (trial court’s decision to award grandparenting time, which was based on evidence and in consideration of statutory presumption in favor of defendant’s decision, did not improperly interfere with defendant’s constitutional right to raise child as he sees fit). The statute also survived substantive due process, procedural due process, and equal protection claims in Brinkley v Brinkley, 277 Mich App 23, 742 NW2d 629 (2007) (grandparents have no fundamental constitutional right to relationship with their grandchildren, nor do grandchildren have fundamental right to maintain relationship with their grandparents against their parents’ wishes).

If the court finds that a grandparent has met the standard for rebutting the presumption, the court will consider whether it is in the best interests of the child to enter an order for grandparenting time. In determining the best interests of the child, the court will consider the ten factors set forth in MCL 722.27b(6).



The court shall consider whether it is in the best interests of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that it is in the best interests of the child to enter a grandparenting time order, the court shall enter an order providing for reasonable grandparenting time of the child by the grandparent by general or specific terms and conditions. In determining the best interests of the child under this subsection, the court shall consider all of the following:

DESCRIBE THE FOLLOWING

(a) The love, affection, and other emotional ties existing between the grandparent and the child.







(b) The length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent.









(c) The grandparent's moral fitness.









(d) The grandparent's mental and physical health.









(e) The child's reasonable preference, if the court considers the child to be of sufficient age to express a preference.









(f) The effect on the child of hostility between the grandparent and the parent of the child.









(g) The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child.









(h) Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent.









(i) Whether the parent's decision to deny, or lack of an offer of, grandparenting time is related to the child's well-being or is for some other unrelated reason.









(j) Any other factor relevant to the physical and psychological well-being of the child.









The parent of a father who has never been married to the child’s mother may not seek an order for grandparenting time unless the father completes an acknowledgment of parentage, a court issues an order of filiation, or the father is determined to be the father by a court. MCL 722.27b(2). Further, the parent of a putative father may not seek grandparenting time unless the putative father has provided substantial and regular support or care in accordance with his ability to provide the support or care.



B. Procedure



HAVE YOU SOUGHT GRANDPARENTING TIME IN THE LAST TWO YEARS []NO[]YES, DESCRIBE





Under the grandparenting time statute, a grandparent may not file more than once every two years seeking a grandparenting time order. If there is a showing of “good cause,” the court may consider a filing despite the two-year restriction. The court may order reasonable attorney fees to the prevailing party. MCL 722.27b(8).

A request for grandparenting time is initiated either by filing a motion, if the circuit court has continuing jurisdiction over the child, or if the circuit court does not have continuing jurisdiction, by filing a complaint in the circuit court for the county where the child resides. MCL 722.27b(3). The motion or complaint must allege that the parent’s denial of grandparent visitation creates a substantial risk of harm to the child’s mental, physical, or emotional health. MCL 722.27b(4)(b). The motion or complaint must be accompanied by an affidavit setting forth facts supporting the requested order. MCL 722.27b(4)(a).

The grandparent is obligated to give each person with legal custody of the grandchild notice of the motion or action. Parties with legal custody of the grandchild may file opposing affidavits. Id.

A party may request a hearing on the motion or complaint, or the court may order a hearing sua sponte. If a hearing is requested, the court must order it. At the hearing, any party submitting an affidavit or a counter affidavit must be “allowed an opportunity to be heard.” Id.

The statute directs that a “fit” parent’s decision to deny grandparenting time is presumed not to create a “substantial risk of harm to the child’s mental, physical, or emotional health.” To rebut this presumption, the grandparent seeking visitation must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time does create such a risk. If the grandparent cannot overcome the presumption, the request for visitation must be denied. MCL 722.27b(4)(b).

If the grandparent successfully rebuts the presumption that the parent’s denial of visitation does not create such a substantial risk, the court moves to the second step of the two-step process. Specifically, if the court finds that the grandparent has rebutted the presumption, it must then consider whether it is in the best interests of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that this is the case, the court must enter an order for “reasonable grandparenting time.” MCL 722.27b(6).

Alternatively, if the grandparent overcomes the presumption, the court may refer the request for grandparenting time to domestic relations mediation, governed by MCR 3.216. If the matter is referred to Friend of the Court alternative dispute resolution, but the Friend of the Court is not able to reach a voluntary resolution within a “reasonable time,” the court itself must hold a best interests hearing. MCL 722.27b(7). The new law does not suggest any time line that would satisfy the reasonable time standard.

The court must make a record of its analysis and findings, including the reasons for granting or denying the visitation request. MCL 722.27b(12).

C. Modification or Termination of a Grandparenting Time Order



MCL 722.27b provides that a court may not modify or terminate a grandparenting time order unless it finds by a preponderance of the evidence, on the basis of facts arising since the entry of the grandparenting time order or facts that were unknown before the order, that there has been a change of circumstances of the child or the child’s custodian and that modification or termination of the existing grandparenting time order is needed to avoid a substantial risk of harm to the mental, physical, or emotional health of the child. MCL 722.27b(11). The court must a make a record of its analysis and findings regarding whether an existing grandparent visitation order should be modified or terminated, including the reasons for granting or denying the visitation request. MCL 722.27b(12).

A court may not prevent a parent from changing a child’s domicile solely to allow the exercise of grandparenting time. MCL 722.27b(9).

Absent a showing of good cause, a grandparent is barred from filing an action or motion for grandparenting time more than once every two years. However, if the court finds “good cause,” it may permit more than one motion or action within this two-year period. MCL 722.27b(8). The court must make a record of its analysis and findings regarding whether good cause to file a premature request for visitation exists, including the reasons for granting or denying the visitation request. MCL 722.27b(12).





Posted here

05/11/2010

Terry Bankert

http://www.attorneybankert.com/