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James Douglas Uloth
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James Uloth’s Answers

21 total

  • What constitutes a fraudulent transfer?

    I have filed suit in small claims court in Rockwall County, Texas. The matter is over loan to a business (car dealership) which has not be repaid. I have witnesses to the discussions and the repayment terms, who have agreed to testify. D...

    James’s Answer

    Proceedings in justice court are controlled by Rules 500 to 510 of the Texas Rules of Civil Procedure, as well as any local rules imposed by the justice of the peace on practice in his court. Generally, these rules less formal than those imposed on county and district courts, as many non-lawyers represent themselves before the justice court. Rules 500 to 510 do not impose a requirement that specific witnesses be disclosed, but they do allow the court make such a rule. Consequently, you should review the procedures applicable to the court where your case is pending. Additionally, the process of issuing a subpoena to a witnesses will allow your opponent to be aware that a person may be called as a witness.

    The concept of a fraudulent transfer arises under state law (the Texas Uniform Fraudulent Transfer Act) and under federal bankruptcy law. The fraudulent transfer statutes can be quite convoluted, but a claim that property was fraudulently transferred largely relates to the questions of whether the person against whom a claim is asserted transferred assets in an attempt to place them out of the reach of creditors or without receiving payment of the value of the transferred asset (in the form of money or some other benefit.) Transfer of an asset for less than the reasonable value of that asset is a “badge of fraud” under the Texas Uniform Fraudulent Transfer Act. One badge of fraud is not conclusive of fraudulent intent, but the presence of several may be sufficient to support a finding that a transfer was fraudulent. Violation of a fraudulent conveyance statute is a civil matter, but concealment of assets may present criminal issues.

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  • Is it a against the law to were woens close and go out in public

    law

    James’s Answer

    The answer to your question may depend specifically on the time and place. A number of foreign countries have anti-cross dressing laws. In the United States most anti-cross dressing statutes have been repealed or invalidated as being unconstitutional. See Doe v. McConn, 489 F. Supp. 76 (S.D. Tex. 1980). However, certain municipalities may well have such laws in effect, even if sporadically or not enforced. Even that aspect of the matter is further complicated as courts have recognized that preoperative transsexuals who must dress in the clothing of the opposite sex as part of the "real life test" requirement for sex-reassignment surgery may not be prosecuted under city ordinances forbidding citizens to dress as members of the opposite sex. Additionally, specific employers may have a policy prohibiting cross dressing. As a consequence, you should review the specific status of the law (state and municipal) and the employer policies applicable to the location as to which you are concerned.

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  • What can i do to get him back

    i raised a purebred male dane from the age of six weeks until he was right at six months my niece couldnt care for him like he needed so she gave him to me, well she recently came and was supposedly taking him to get registered and bring him back...

    James’s Answer

    The question depends specifically on whether your niece truly gifted the dog to you. A gift is a voluntary transfer of property to another made gratuitously and without consideration. In order to establish that the ownership of the dog was transferred to you as a gift, you need to be able to prove that your niece: 1) intended to make a gift; 2) delivered the dog to you; and 3) that you accepted the gift. Since you appear to meet the second and third elements of this test, the issue is whether there was an intent to gift. You can certainly testify to this fact, and your subsequent care of the dog, but emails, texts or other written material showing that the your niece regarded the dog as belonging to you would help. Even if she did not intend to gift the dog to you, you may be able to seek reimbursement for the costs associated with the care of the dog, and these costs may dispose her to return the dog to you.

    Texas regards animals as personal property. If she will not voluntarily return the dog, you will need to file a lawsuit to recover possession or the value of the dog (as an alternative to possession and to encourage her to return him.)

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  • Is a company who has outside work (contractors) bound to allow any vendor to submit a bid, and receive a scope of work

    I just started my own business with three other partners. I know a company who has a contract with a company were bidding against. I know the contract ends in June of this year. I have tried to get the scope of work, where to send our bid etc. No...

    James’s Answer

    Since you are inquiring about a “company,” I assume that you are not trying to submit a bid to a governmental entity. Generally the size of the contract in issue determines whether a public entity must allow open bidding. With respect to a private company, the answer to your question likely depends on the nature of the contracts that company has with its customers. If that company is engaged in public works contracts, there is a reasonable chance that it is obligated to pursue open bidding, and thus provide information related to the bidding on request. If the company with which you wish to work is engaged in private contracts, whether they are required to seek bids, or provide information necessary to formulate a bid, may depend on the contracts with its customers. If the company is a private company, and is working for customers who do not impose bidding requirements, it may choose not to seek bids, in which case as long as the company is not refusing to do business with you on a discriminatory basis, you may not be able to obtain the information necessary to formulate a bid.

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  • How are the statute of limitations effected if the company you have a claim against goes Chapter 11?

    I didn't file my law suit before the company went Chapter 11, but will file a proof of claim. Is it the date the company declares Chapter 11 or the date i file my proof of claim that is used to determine if the statute of limitations has run out ...

    James’s Answer

    To answer your specific question, the effect of the automatic stay on the statute of limitations is governed by Bankruptcy Code Section 108(c) (“Extension of Time”). If applicable law or an agreement establishes a deadline for filing or continuing a civil lawsuit, and that time has not expired when a bankruptcy case is filed, the deadline for filing suit does not expire until the later of: 1) 30 days after any applicable automatic stay in the bankruptcy case expires or is terminated; or 2) the expiration of the originally applicable non-bankruptcy limitations period.

    However, what you should probably be looking at is whether you should take any action before the tolling period ends. If your lawsuit was to enforce a payment obligation, such as an unpaid invoice, you would need to file a claim in the bankruptcy case prior to the claims bar date established for the case, and there may be no to pursue any lawsuit.

    If your lawsuit is based on a claim which could involve someone besides the debtor, such as a personal injury which might be covered by insurance, you would need to review whether to ask the bankruptcy court to modify the automatic stay so that you can proceed with a lawsuit against the company for purposes of triggering the third party’s obligation (such as the obligation of the debtor company’s insurer to defend, and possibly pay, the claim.) Under this second type of circumstance, you should also file a proof of claim, which would allow you to share with other creditors of your particular class. However, if insurance may be involved, and you have a valid claim, you will likely recover more by seeking authority to pursue a lawsuit. The debtor company could still try and bring your claim within the bankruptcy process for resolution, but this might be the only way to involve insurance.

    Additionally, in a Chapter 11 case, you need to watch the case to determine how the debtor intends to value and pay any claims as this could cut off any other rights you may have.

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  • My fiance is a sole proprietor (PA - professional association). Will I be liable in legal matters after we are married?

    I have secure assets and income for retirement and can provide both of us with a good life after she retires from her business. She has very little set aside for retirement. Obviously, I want to protect my resources for our eventual retirement....

    James’s Answer

    Since you specifically use the term PA, I assume that your fiancé is an attorney. The short answer is that the assets which you own as separate property at the time of your marriage will not be subject to a judgment against your spouse for professional negligence. However, although the answer is relatively simple, reaching that answer is at times a complex accounting and tracing question. The Texas Family Code Section 3.003 provides that property possessed by either spouse during marriage is presumed to be community property, with the burden being on you to show it is not. Thus, you must maintain the property separately, and avoid commingling your separate property with community property or your spouse’s separate property. Additionally, income from separate property may become community property. These are just a few of the considerations. As a result, it may be a good idea to consider a pre-marital agreement that will help define the division of your assets, and assist in proving that division.

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  • Ch 11 Bankruptcy

    I have a business and I have filed for ch 11 bankruptcy. Can I name myself as a creditor?

    James’s Answer

    It is not possible to give you a complete answer without considerably more information. Assuming that the business has filed bankruptcy, rather than you individually, in broad terms your role as an owner of a corporation or similar entity, such as a limited liability company, makes you an equity security holder. You may file a claim in that capacity but equity security holders are generally last in line to be paid in a bankruptcy.

    If you are additionally owed money by the business, either because you loaned money to the business that has not been repaid, or are owed unpaid salary, you may also be a creditor. Classification as a secured or unsecured creditor would depend on whether you obtained collateral for any loan. You should also be aware that although you may be a creditor, depending on how your claim came into existence, and what sort of documents you have to support your claim, other creditors may challenge your claim or seek to alter the priority of your claim.

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  • Does a Chapt 11 Filing Automatically result in NASDAQ de-listing? What is process, requirements & timing?

    Very unusual case. The common stock dropped from $11 to $1 per share and is currently trading between .85 and 1.25, closing above $1. Filing company gave no warning and holds valuable IP...but is severely restricted for portions of business due t...

    James’s Answer

    • Selected as best answer

    The NASD has considerable discretion regarding the decision to delist a company. NASD Manual, sec. 4300, states that "NASDAQ may . . . apply additional or more stringent criteria for the . . . continued inclusion of particular securities or suspend or terminate the inclusion of particular securities based on any event, condition, or circumstance which exists or occurs that makes initial or continued inclusion of the securities in NASDAQ inadvisable or unwarranted in the opinion of NASDAQ, even though the securities meet all enumerated criteria for initial or continued inclusion in NASDAQ.”
    Specifically, the NASD Manual outlines certain criteria which support delisting. The NASDAQ may suspend or terminate an issuer’s securities if the company files or announces that the board has authorized liquidation under any section of the bankruptcy laws unless it is determined that the public interest and the protection of investors would be served by continued listing (NASD Manual, sec. 4450(f). Delisting may also occur if certain criteria are not met by the listed company. The criteria which must be met depend on the type of security involved and largely establish minimum standards for number of shares, total shareholder’s equity, number of shareholders, value of the shares (over a set time period) and number of market makers (over a set time period). These are set out in the NASD Manual, sec. 4450 (a) “Quantitative Maintenance Criteria”).

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  • What can I do? My Small Claims case went to County Court. I am the plaintiff.

    An LLC filed a lawsuit against a roofer. 12/27 JP granted Default Judgement because defendant did not show. 7 days later defendants lawyers file a motion new trial. JP did not grant. On 1/29, defendants lawyers filed "Inability to pay" JP grants...

    James’s Answer

    Based on your factual summary, the defendant in the justice court case filed a sworn statement of inability to pay pursuant to Texas Rule of Civil Procedure 506.1 in connection with the appeal of the case from justice court. The purpose of such a statement is to allow the defendant to avoid posting a bond in connection with the appeal of the case to the county court. Rule 506.1(d)(2) provides that the statement of inability to pay “may be contested as provided in Rule 502.3(d) within 7 days after the opposing party receives notice that the statement was filed.” You might be able to argue that you did not receive notice until your tenant forwarded the statement to you, giving you seven days from that date to contest the statement. How successful you would be in making such an argument will depend on whether the rental house is a valid place where you can be given notice, which cannot be determined on the facts provided. If you are not allowed to contest the sworn statement, the matter will proceed to a new trial without the need for a bond to be posted. Being allowed to contest the sworn statement does not affect the appeal, unless the sworn statement is disallowed, bond is required, and not paid. Since your opposing party is now represented by an attorney, you will be at a disadvantage in continuing with the trial of this matter without hiring an attorney for the plaintiff LLC.

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  • Can I file a Wrongful Termination Suit after company emerges from Chapter 11 if my termination occurred before the bankruptcy?

    I did not file a suit at the time of termination 9 months ago because my brother is still employed by the company and I was afraid that if I did so, he would have been terminated as well. Now the company is planning on filing chapter 11. If the ...

    James’s Answer

    If you have a claim against a company entering bankruptcy, you will need to take action in the bankruptcy case to avoid losing your claim. The nature of the action required will depend on the factual and legal basis of your claim. As others have stated, you may be able to file a proof of claim, which will be treated in a like manner to other similar claims. However, you may be able to obtain different treatment by taking action other than simply filing a proof of claim. All of this depends on specific review of the facts giving rise to your belief that you have a grounds for a lawsuit.

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