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Brian Hester’s Answers

59 total

  • If I have a lien on a residential home and the home goes into foreclosure, Did I lose my money? or will the bank owe me?

    I sold a home and the buyers did not have enough to purchase it, so I gave them $10,000. from the proceeds to purchase it. At closing the agent said they would put a lien on the home for the amount owed me. The home owners gave the home up about 6...

    Brian’s Answer

    You need to find all the paperwork you can from the closing and consult with an attorney. I'm unclear as to what exactly happened. Are you saying you lent the buyers' $10,000 towards the purchase price? If so, there probably should have been a second mortgage filed in favor of you subordinate (behind in line) to the mortgage from the lending company that lent the rest of the purchase price. If such a lien was created, then it should have been filed with the County Recorder's Office. A simple title search on the property should turn up documentation regarding your mortgage interest in the property.

    If not, then your debt to the purchasers is not perfected with a security interest in the real property.
    When you say the owners "gave the home up" do you mean they signed title of the home over to the bank? They didn't contest a foreclosure?

    If there was a foreclosure AND you had a lien against the property, you should have been served a copy of the foreclosure complaint given your security interest in the property.

    I cannot give you a straight answer because I don't feel like I've got all the necessary facts. It'd help to know if the house was foreclosed on or if the buyers just signed the titled over to them. Regardless, it sounds like you do not actually have a perfected lien on the property.

    Check the title records to see if any mortgage to your benefit was ever recorded. Who's agent was it (was it a dual agent, buyers' agent, seller's agent?) How long ago was the sell? These are the questions a lawyer is going to need to know to give you an honest assessment of your rights and options at this point during a consultation. I don't think this forum is sufficient to really give you the guidance you need. You need to consult with a real estate attorney in your area ASAP to protect your rights (if you still have any legal rights to the property) before the house is sold by the bank.

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  • Is there a way 2 get property returned that was taken during a search warrant?

    Property was taken during a pandering obscenity case. Property was not illegal or used as evidence. Attny will not return calls because i still owe money. Been over 3 years since taken & no attempt made to return it. Can I petition court on my own...

    Brian’s Answer

    If it's been over three years, I question whether the police are still in possession of it now that your matter is closed. You can contact another attorney and file a Motion for Return of Personal Property under your prior case number for the return of personal property. You can always contact the arresting law enforcement agency as well and see if a) it's still in their possession, and b) they'll release it to you without a court order. My advice would be to be as specific as you can as to what items you're seeking to be returned. I must warn you though, there's a chance that it's no longer in the State's possession if its been over three years since your case started.

    If it was disposed of since your case was resolved, I'm not sure what recourse, if any, you might have.

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  • Can I refrain from paying rent if my landlord refuses to take further action on a infestation issue with rats and mice?

    No lease in effect.caught over12 rats and mice with glue traps both he and I have paid for..I keep a clean house they have just mated in the garage and have easy accesss to our house via holes,spaces,walls etc.Landlord wont take any further respon...

    Brian’s Answer

    Short Answer: No. Ohio law never gives a tenant a right to stay at a place rent-free.

    I'd suggest you may want to contact Legal Aid if you cannot afford an attorney to help you guide through this process. First, I'd start off by putting in writing to a letter to your landlord the problem, how long it's been going on, and that it still is a problem. Second, contact the Health Department to inspect the premises (a landlord cannot evict you based on filing a complaint with the Health Department) and see if they can help your landlord identify the source of the rodent infestation. A Health Department violation would also strengthen your case against the landlord discussed further below.

    The law gives a landlord a reasonable time to fix such problems, but doesn't give a bright line rule as to what constitutes a "reasonable" time. After giving your landlord written notice (send the letter iether certified mail or some way with delivery confirmation and keep the records of the delivery confirmation), if the problem is still not resolved AND YOU ARE CURRENT ON THE RENT, you can go to the Hamilton County Municipal Court to petition the Court to put your rent into an escrow account and file a complaint against your landlord for not fixing the problem.

    The landlord cannot evict you for nonpayment of rent if you pay the rent timely into the escrow account and continue to do so. The court will then have the landlord come in and hear evidence regard the problem. (Take photos of the rats your finding dead and alive, feces, property damage from the infestation, etc.) The court can then order that the funds you put in escrow be released to you to hire someone, like a professional exterminator, in lieu of releasing the funds to your landlord to satisfy your rent. The court may also declare that you have the right to terminate the lease prematurely without loss of your security deposit, etc.

    If the Court finds that your landlord has adequately fulfilled his duties as a landlord, not liable for the rodent infestation, or you are behind on your rent, the Court can also order that the funds in escrow be released to the landlord instead. Putting your rent in escrow is the only lawful way you can use the payment of rent to leverage your landlord to make repairs to make the premises habitable.

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  • How can I get a restraining order on my stepdaughter's mother? They said I can't because she has every right to come to my house

    My stepdaughter's mother assulted me at my own home. She calls all the time and leaves crazy messages. I stay out of it and let my husband deal with it. But now she came to my house and tried to attack me . I made a police report and they gave me ...

    Brian’s Answer

    You can definately petition the Court for a Civil Protection Order. I am attaching a copy of the instructions for filing a Civil Protection Order from the Hamilton County Clerk of Courts website for your review. Here's also a copy of the actual paperwork you'll need to file:

    The process first begins with an ex parte hearing (hearing in which only you appear). If the court is conviced based on your application that a civil protection order is permissible and warranted given the law and the facts, it will issue an ex parte temporary order. This order is typically only good for fourteen days. You'll then have to return in about two weeks for a full hearing in which your stepdaughter's mother can appear. Both sides present testimony and evidence as to why a permanent order should or should not be issued.

    Just because your spouse's ex has visitation or custodial rights to your stepdaughter does not mean she has a legal right to come to the house to harass, stalk, and assault you. Talk to your spouse about making arrangements to do transfers of custody after visitations at some place other than where you'll be. You can do that even without a restraining order. And if one is granted, that's what will have to happen in order for her to see your stepdaughter anyways.

    I'd consult an attorney about filing out the paperwork and getting the necessary witnesses and evidence ready for a full hearing to maximize your chances of success. Good luck!

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  • Hi me and my husband just bought a car from a private seller on craigslist 45 days ago head gaskets are blown

    are we able to claim lemon law

    Brian’s Answer

    Ohio's Lemon Law only applies to commercial automobile dealers, not private sellers, and it only applies to new vehicles. For your convenience, I'm including a link from Ohio Attorney General Richard Corday's office on Ohio's Lemon Laws.

    This doesn't mean that you aren't without recourse, it just means Ohio's Lemon Laws and the particular relief it provides isn't available. Can your mechanic say that the problem with the head gasket was such that the owner knew or should have known that there was something wrong (for example did prior owner in the car do anything to hide the defect? I've heard of outrageous examples of sawdusts in engines to hide noise, etc.)?

    A common legal defense in any litigation is failure to mitigate a person's damages. When you're in an "arms length" transaction, the law presumes that you will do due diligence to protect your own interest. The ol' "trust, but verify." Did you have a mechanic examine the car before you purchased it? If not, that gives the seller some protection, but it is unlikely to be a complete shield and could be thwarted if there's evidence that the seller knew of the defect and took action to conceal it from you and your husband from discovering it.

    Another potential claim you might have would be a breach of warranty, fraud, and misrepresentation if the prior owner made any representations in the ad or in your discussions about the condition of the car.

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  • I am wondering if verbal agreements will be enough to be held in small claims court in Toledo, Oh

    My ex-fiance owes me roughly $3000 from when we were together. I don't have this in writing, but I do have it where he took it out of our account with his debit card. Will this be enough information to settle my case in small claims court in Tol...

    Brian’s Answer

    Unfortunately, I need a little more information. Are you saying he took a $3,000 cash withdrawal from your joint account? An oral contract to repay money is enforceable, although a written contract is obviously the best evidence.

    What was the money for? What evidence do you have that he promised to pay the money back?

    The problem with joint accounts for non-married couples is that there's no divorce settling whether one party has to return property or compensate the other partner for the loss of property.

    A joint account is just that. It means that each person has an undivided interest in the account. Therefore, regardless of the source of the funds, the $3000 was just as much his own money as it was yours (even if he never deposited one penny in the account). If, for example, you had a joint credit card, he's no less liable for your charges on the account than you would be for his. The credit card company doesn't care if you broke up or who charged what. When you give someone authority to use your credit card or your bank account, you're agreeing to be jointly liable for that person's use of the account.

    When you open a joint account, you're giving that person just as much title to the property (money) as you've ever held.

    Unless you have some evidence (testimonial, email, text message where he acknowledges his obligation to repay the debt and that it is actually a debt and not just an obscene withdrawal) that there was an oral promise by him to pay you back the $3000 he withdrew, you may be sunk.

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  • I just recieved a notice of garnishment of property other than personal earnings......

    I was struggling to make payments on a credit card but i never recieved anything that they were taking me to court . My balance is around $2200.00 would they accept payments on something like this..I can afford around $250.00 a month.........wh...

    Brian’s Answer

    The Notice of Garnishment should contain a case number associated with it. That number should either be the original case number where the creditor obtained a judgment against you or its the case number where they certified the judgment in Summit County from another court. Either way that case number should lead you to a case where they obtained a judgment against you.

    If you honestly believe that they was never ever any judgment against you, you have only five business days from when you were served the notice to return it with an objection to the garnishment. Your basis would be that you do not believe any judgment was rendered against you.

    If a judgment was rendered against you, you need to retain a lawyer (perhaps call Legal Aid) to discuss ways that you might, even at this late juncture, challenge the judgment. Speed is of the essence either way. If a judgment was rendered against you, the creditor may seek to garnish both your wage income and non-wage assets to apply to their judgment until it's successfully vacated.

    I'd also contact the creditor's attorney and make your best offer for a payment plan to avoid garnishment. It helps if you put the offer in writing and be as realistic as you can. I think $250 a month is realistic, depending on how much interest is accruing every month. Be specific. $250 a month on the xth day of every month until paid in full. In return, creditor withdraws motion to garnish non-wage garnishments and stays any other collection efforts so long as payments are timely and fully made.

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  • My previous employer told an employer I was terminated for drug use although that never happened what so ever what can I do?

    I quit the job after four days of work because the job was not what was described it would be one year later I find out that they told the person checking on my employmenty there that I was fired due to drug use. What legal right do I have against...

    Brian’s Answer

    Did you give them a written resignation letter you still have on file? Do you have something, in writing, saying that this employer claimed you were fired for drug use or at least contact information for a person telling you this is what they said?

    You might have a claim for slander and tortous interference with a business contract if this has arguably costs you other employment provisions. However, given the expense of litigation and time involved, you may just want to consult with an Ohio attorney to see if they can 1) ask that your former employer provide documentation supporting their claim that you were fired for drug use as opposed to resigning 2) otherwise cease and desist from given such false information in the future and give a neutral job reference that merely confirms your prior employment and the period of time of your employment.

    You need to nail down your evidence that this is what's going on beyond hearsay from your current employer. If your employer took no action (immediately termination) based on this information, the fact that you're gainfully employed despite this false represenation means you'd have a hard time proving much in way of actual damages.

    Hope this helps.

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  • Can I have an at-home salon business if I give up my cosmetology license?

    I am a licensed cosmetologist and have often considered starting a home business doing hair. I know that if I don't conform to state board standards, they will revoke my license. I want a much smaller, simpler business than what state board calls ...

    Brian’s Answer

    I think you knew the answer to the question before you posted it. No, you cannot operate a home business hair salon and operate as a stylist without maintaining a valid, active license from the State Board of Cosmetology and comply with its regulations regarding the operations of the applicable branches of Cosmetology being practiced in your home.

    You should also know that performing comsetology services without a license is a fourth-degree misdemeanor, punishable by up to thirty days in jail and a fine up to $250 for a first offense. Subsequent offenses can be charged as a third-degree misdemeanor, punishable up to sixty days in jail and a fine upt to $500.

    In addition, if you take your current license to an inactive status or allow it to expire, it could jeopardize your ability to get or renew your license down the road. If the Board becomes aware of your unlicensed practice, it can seek a court injunction ordering you to cease your business under penality of contempt of court.

    I'm a lawyer, working from home, who made the decision to leave a firm because I know I had the clients here if I chose it. I kept my law licence, got my own malpractice policy, and opened the necessary bank accounts to legally operate my practice from home.

    My general advice to clients looking to risk shortcuts to avoid government regulations is that it's never worth it. You'd never rob a bank on the hope that you wouldn't get caught. Same principle applies. You have a license. Keep it and consult with a lawyer to know what you need to do to operate your business from home lawfully and in a way that avoids putting your home and everything else your family owns at risk if your home business is sued. (In other words, consult with an attorney about potentially forming an LLC for your small business.)

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