Firm Logo 2010March 2012
Family Law Newsletter 
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The State of Our State
Article Corner
Court Update
A Moment of Levity
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JeffFanger EHC

          

Spring is quickly approaching the Cleveland area and we are all relieved to be on the home stretch of a mild winter. We are looking forward to the coming warmth and would like to wish everyone a happy and green St. Patrick's Day.

 

            This month we would like to welcome Claudia Ring to our staff as our new Marketing Director and part of the Fanger & Associates team.  She is a recent Case Western graduate whose ambition and energy will be an asset to our firm.

 

            We would also like to remind you that this newsletter is sent with a standing invitation to contact us with your questions at (440)-605-9641. As always, we encourage you to read our articles and remain informed about the legal issues governing Ohio.

 

            On behalf of the entire staff at Fanger & Associates, we thank you for your readership and hope you enjoy the remainder of the month.

 

 

                                                                         Jeffrey J. Fanger

The State of Our State  

Changes in Ohio Law

House Bill 14  

 

            On February 21, 2012, Governor John Kasich signed H.B. 14 into law, which states that dogs that look like, or are technically classified as pit bulls, are no longer deemed "vicious" based on appearance alone. With the passing of H.B. 14, any dog can be classified as dangerous, but only after committing one of several canine crimes. Any dog which moves to attack, or does attack a human without provocation, meaning that "a dog was not teased, tormented, or abused by a person" can be deemed vicious, but rightfully so. However, pit bulls and their look-alikes are not out of the woods yet. Certain local laws are in effect, or in progress, to remain tough on pit bulls and their unrelated twins (which, if in existence, can often be found on your local government's website).

 

            In addition, while some of the pressure has been lifted from innocent dogs, it also places more responsibility on the shoulders of their human owners. Even if your dog is on a leash, or confined to a fenced in area, you are still responsible for his or her actions. Ensure that your dog is muzzled on walks if he or she has a history of mild to moderate aggression and that you supervise outdoor trips, even in the backyard. Don't worry though, if "a person [is] committing or attempting to commit a trespass or other criminal offense on [your] property," your dog is in the clear.

 

           H.B. 14 also moves to institute a human-controlled form of birth control for Ohio dogs, as female dogs in heat must be confined, chained or on a leash at all times. In other words, protect your girls from unplanned pregnancies and keep the number of unwanted and abandoned puppies to a minimum.

 

            The outcome of this bill is a victory for unjustly ostracized pit bulls all over Ohio, but that does not mean they don't exist. Always be wary of unfamiliar dogs, even when restrained, and keep your distance. As always, comply with the law by reporting any dog you have witnessed as dangerous and maintain your companion's shots and county registration.

 

            Happy walks from Fanger & Associates!

 

 

All information taken from Ohio's Legislation Website.  Read all of H.B. 14 here.

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Article Corner 
Family Law Informational Articles                      
    

"Five Myths About Premarital Agreements"

 

Myth 1: Prenuptial agreements are for the wealthy.

 

Just because you may not have an excess of money right now doesn't mean you never will, and it doesn't mean assets won't accumulate over time. Just having a discussion about finances and future plans makes your position clear on how you would handle situations that may arise. Even though there may be certain events you want to avoid discussing, such as divorce or an unexpected death, getting the decisions down on paper will remove at least a portion of the anxiety surrounding them.

 

Myth 2: Prenuptial agreements are meant to protect the wealthier spouse and leave the other with the bare minimum.

 

In fact, any prenuptial agreement should be created with good intentions for both parties.   A marriage is an equal union, and a premarital agreement should reflect the wishes of both parties equally. "By definition, the agreement must be fair. The basic requirements for premarital agreements to be enforceable are: "signing the agreement must be voluntary [meaning]; it can't be unfair when it's signed [and] each party needs to make a full disclosure of [their] assets and debts."

 

Myth 3: Prenuptial agreements put a halt to the romance in a relationship.

 

Unfortunately, if either party wants a prenuptial agreement, it is something that needs to be dealt with. The agreement is a reality check, so it should be done together at a time when both parties feel levelheaded and committed to the project. In the end, agreeing on the terms of your marriage may actually increase the level of comfort you feel in the relationship.

 

Myth 4: A prenuptial agreement must run the gamut of potential problems in a marriage or divorce and address each one.

 

The number of issues to include is your and your spouse's decision. It can be as in depth as you need it to be, depending on your marriage's complexity, if, for instance, it is one party's second marriage. In essence, it is designed to be a document tailored to your marriage's specifications so that if problems do arise you are prepared.

 

Myth 5: If I'm just living with my partner and we remain unmarried, we can't claim each other's property or income as our own.

 

Palimony does exist and is designed to protect people who live together and are unmarried. Those living together in a long-term relationship are still susceptible to claims for support, and creating a written contract is one of the best ways to ensure that your cohabitation is on mutually agreed upon terms.

 

"The truth is that a carefully crafted premarital or prenuptial agreement can cement your relationship, prompt you to have the hard discussions that engaged couples need to have, and ensure that your finances are handled the way you each intend in the event you were to divorce or pass away prematurely."

 

To read the full article, click here.

 

Candice BradleyCourt Update
Recent Court Decisions of Interest in Family Law 

Court of Appeals of Ohio: Borrower's breach of contract claims against automobile lender began to run on date of alleged wrongful repossession

Foster v. Wells Fargo Fin. Ohio, Inc., 195 Ohio App.3d 497, 2011-Ohio-4632

 

              

            In a Court of Appeals case decided September 15, 2011, Ronald Foster attempted to overturn a judgment of dismissal that was based on limitations grounds. Foster had previously sued his lender, Wells Fargo over a disputed auto financing agreement. According to Foster, Wells Fargo charged an excessive interest rate, failed to credit his account for payments made, misrepresented the model year of the automobile in question, wrongfully repossessed the automobile when he was not in default, and slandered his name by misrepresenting him to credit agencies.

 

            In 2003, Foster purchased a 2003 Chevy Malibu from Ganley Chevrolet in Cleveland, Ohio. He put $900 down on the purchase and financed the remainder through Wells Fargo; a $12,019.82 loan with an interest rate of 17.15% per year. Foster included in his complaint a segment from his financial agreement that stated, "The plaintiff may only be deemed in default of the terms of the contract if the plaintiff fails to perform any obligation under the contract or the defendant believes that the plaintiff cannot or will not pay or perform the obligation of the contract."

 

            The disputed wrongful repossession stemmed from this; Foster failed to make his payment of $299.69 in January 2006, and Wells Fargo claimed to never have received a payment for March 2006, either. They acknowledged that payments were made in February and April of 2006, but denied receiving a March payment despite the fact that Foster provided a copy of a money order receipt dated March 14, 2006. Wells Fargo then claimed that his January payment was still unaccounted for and repossessed the car on May 6, 2006, which they sold at auction.

 

            Foster filed against Wells Fargo on March 26, 2010, alleging failure to credit his account for payments made, charging an excessive interest rate, fraud for mislabeling the car's model year, wrongful repossession, and defamation for Wells Fargo's incorrect report to credit agencies. Unfortunately, Mr. Foster did not comply with the statute of limitations on the first two of his claims. While they may have been legitimate, there is a two-year statute of limitations concerning the Consumer Sales Practices Act, as well as for breach of contract that would have also applied to his claims of failure to credit and charging an excessive interest rate. In order to bring these claims forward with legitimacy, Foster would have had to file "two years from the occurrence of the violation, or one year after termination of the proceedings with the attorney general with respect to the violation, whichever is later." Foster signed his financial agreement with Wells Fargo on June 30, 2003, and after his repossession on May 6, 2006, notified the Pennsylvania attorney general of his grievances.

 

            Herein is where Foster's problems truly began. In March 2007, the attorney general's office notified Foster that they could not resolve his complaint because they were "unable to compel or force a company to resolve a dispute if they do not wish to cooperate." In other words, Wells Fargo did not want to resolve the matter out of court and was refusing to cooperate with the attorney general's office. The office advised Foster to take on private legal counsel as they felt he had valid claims, but Foster remained pro se, without an attorney. Following this, Foster filed his complaint on March 26, 2010, "almost seven years after the delivery of the vehicle, four years after his car was repossessed, and three years after the attorney general's office concluded its proceedings on Foster's claims." The judgment therefore stood to bar Foster's claims of failure to credit his account for payments made, charging an excessive interest rate and therefore, breach of contract for this claim, because they were not addressed within the two-year statute of limitations under the Consumer Sales Practices Act.

 

             Foster's fraud allegation also followed suit, as the statute of limitations for fraud is four years after the cause accrued. Foster had possession of the car on and since June 30, 2003, had access to the VIN number which had the correct model year attached, and did not file until March 2010, almost three years after the statute expired.

 

            However, there was good news for Foster concerning his final two claims of wrongful repossession and defamation. Foster did file his wrongful repossession claim within the applicable four-year statute of limitations and the court sustained that "Wells Fargo did had no statutory or contractual authority to repossess the vehicle... Thus, the breach of contract accrued on the date of repossession." Foster's allegation of defamation (libel or slander) concerning Wells Fargo's incorrect reporting to credit bureaus was also upheld.

 

            Foster made several missteps throughout this process that ultimately caused him to invalidate several of his own claims. His failure to take on private counsel when advised by the attorney general meant he did not have the legal knowledge to take proper filing steps in time for all of his claims to be considered. Foster's case was heard without a jury trial, but as the Ohio Supreme Court explains:

 

            The right of "every person" to bring an action in an Ohio court is not an unlimited, absolute guarantee that every cognizable claim filed in a court of general jurisdiction will be litigated to a final conclusion in such court. Litigants may find their claims barred by a reasonable statute of limitations, stayed by lawful injunction, dismissed by summary judgment and tempered by any number of other devices consonant with due process or "due course of law."

 

 

 

A Moment of Levity    
Funny Words of Wisdom  


Accept that some days you're the pigeon, and some days you're the statue. 

On the keyboard of life, always keep one finger on the escape key. 

Everyone has a photographic memory.  Some just don't have film.
 
 
For more laughs, click here.
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The opinions and views expressed in this newsletter are solely those of the author of the article and/or Fanger & Associates LLC. Articles appearing in this newsletter are intended to provide broad, general information about the law. This newsletter is sent to clients and friends of Fanger & Associates LLC, as well as Ohio businesses and Ohio nonprofit corporations as identified through their registration with the Ohio Secretary of State, including organizations with which Fanger & Associates LLC has no prior contact. Before applying this information to any specific legal problem, readers are urged to seek advice from an attorney. If you have any questions regarding any topic in this publication and you already have a lawyer, please contact your lawyer. If you do not already have counsel, please feel free to contact Fanger & Associates LLC and we will be happy to assist you.
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