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Richard Gaines Heston
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Richard Heston’s Answers

71 total


  • I WENT BACK INTO THE STORE FROM WHICH I STOLE FROM

    I SHOPLIFTED AND KEEP GOING BACK AND THE SUCRITY ASKED ME TO LEAVE AND I DIDINT

    Richard’s Answer

    Are you questioning the store's right to take affirmative steps to prevent you from further shoplifting? There is no civil right to re-victimize. Not yet, at least. You'll have to shoplift elsewhere.

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  • Could I have a divorce case dismissed on the grounds of improper service?

    My husband filed for divorce last summer in Kern County. However, he never served me. It was not until I filed for divorce in LA County early this year that he started to send me all the paperwork that he was suppose to send me in regular mail.

    Richard’s Answer

    The remedy for improper services of the petition and summons is the filing of a a motion to quash, not dismissal. If you are beyond the jurisdiction of the California courts, dismissal for lack of jurisdiction may be appropriate. Otherwise, quashing service may only buy time, as you can be re-served in a proper manner.

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  • Can i file the default judgment including a settlement agreement even if ex does not agree to terms? will divorce be delayed?

    State of California, I'm the petitioner in the process of divorce, all papers filed, final default judgment not filed yet, ex does not agree to terms, though they are fair 50/50 he wants more, 1 child from the marriage, no real property. Some cred...

    Richard’s Answer

    In a settlement agreement is one to which both parties have agreed. If your estranged husband does not agree to the terms you are proposing, you don't have a settlement, and hence you do not have a valid or enforceable settlement agreement. If he also has failed to respond to the petition and 30 or more days have passed, you may proceed by way of entry of default and set the matter for hearing as a default prove-up. By the terms presented to the court for approval will need to be in conformity with applicable California law and in the best interest of your child. If you are proceeding by default, only you will be permitted to present evidence in support of your proposed judgment, and the defaulted husband will not be permitted to testify or otherwise present evidence.

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  • Spouse hadn't filed income taxes for years (owes a large amount of money) prior to marriage, is it possible to get annulled?

    Seeking annulment

    Richard’s Answer

    Concealment of one's financial circumstances or even active misrepresentations does not go to the "heart" of the marriage, which is deemed to be those reasons one enters into a marital relationship, such as a desire to raise a family. Numerous appellate decisions over the years have steadfastly rejected the idea that someone who marries, then learns that the his or her spouse is financially irresponsible, mired in debt, or less wealthy than had been sought, is entitled to an all the marriage. On the other hand, if you seek a divorce, no-fault need be shown and you are entitled to end the marriage without having to give any reason. Since the debts preceded the marriage, they are the separate obligations of your, for which you have no liability. You need not concern yourself as to whether you would qualify for "innocent spouse relief", which applies only to situations where spouses have filed joint returns.

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  • What to do now???

    Hi I have a property ,no job, no car, no bank account i have a paypal account that has a little money in it time to time. when I can sell some items. i have a judgement of $21,000. amex unpaid credit card debt I tried to negotiate with them be...

    Richard’s Answer

    Because you own a property, which I assume may be your home, there is more information needed, such as the property value and the balances owed on any loans, before deciding what type of bankruptcy proceeding may best suit your needs. But is sounds as if protecting your property and discharging the debts to provide a fresh start when you find work (you will) suggests that seeking bankruptcy protection is advisable at this time.

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  • Debating between debt consolidation and chapter 13. Filed for chapter 7 in 2013. How quickly to file if bk is the right one

    I have numerous personal loans being paid with high interested every payday and owe lot of money in taxes and student loans. make around 2000 per paycheck but it goes directly to paying those loans and i end up having to borrow more every month to...

    Richard’s Answer

    At $2,000 per paycheck, whether that is monthly, semi-monthly or every two weeks, you should be able to pass the means test to establish your eligibility for Chapter 7. As between Chapter 7 and Chapter 13, most often Chapter 7 is better for you, while Chapter 13 is better for your creditors.

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  • Chapter 7 bankruptcy in California. How are debts owed to the 91 Express Lanes / OCTA treated in chapter 7

    Thinking about filing chapter 7 bankruptcy. But I owe money to the described toll road. Wondering what result.

    Richard’s Answer

    Benjamin Heston's practical suggestion is the best approach. There is no published opinion that supports the position that toll road fees are non-dischargeable. Quite a few years back, in a non-published memorandum, Judge Jame Barr of the Santa Ana Division of the Central District of California came to the conclusion that such assessments were non-dischargeable. But since the memorandum was not published nor was it an appellate decision, it did not constitute a precedent that could be cited as controlling authority. It was binding only in Judge Barr's courtroom. Judge Bar retired from the bench in 2006. He's in great health and enjoying retirement. I know because we recently met for lunch. I doubt that he gives the car pool lanes fees much thought, and the decision is no longer a concern since his courtroom assignment has long since been filled by another judge, who has never opined on the subject.

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  • Is the current California bankruptcy car exemption $5100 or $4800?

    The California statute website says it's $4800, but I've also seen $5100 floated around. How come the California statute website seems out of date? How can I find a place that has current authoritative information?

    Richard’s Answer

    Actually, there are two differing amounts, the choice of which depends on whether you will be claiming a homestead exemption to protect equity in your residence. The amount is $5,100 if you do not claim the homestead, or $2,900 if you do claim the homestead. With the homestead in California ranging from a low of $75,000 for single individuals, all the way up to $175,000 for seniors, the disabled, and those persons age 55 or older with low income, clearly it is a potentially valuable exemption, which would take precedent for the homeowner with home equity. If you do not own your home, you would normally want to claim the $5,100 exemption available for a motor vehicle. To see all of the available exemptions, visit the website of the California Courts, at www.courts.ca.gov/documents/ej156.pdf.

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  • I wasmarried in California my husbandand I moved wth our daughter to peruI want to file for divorce, can I filetru the USEmbassy

    my daughter was born in US as well

    Richard’s Answer

    If you have met the requirements to establish legal residency in Peru, you may avail yourself of the laws of Peru to initiate a divorce. If I understand your question, your husband also is living in Peru, providing the courts of Peru with personal jurisdiction over both of you. I would strongly urge you to consult with a Peruvian attorney familiar with family law matters to verify whether you may proceed with a divorce in Peru, where you reside and which I assume would be most convenient and least costly.

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  • How do you calculate value of a home in bankruptcy? Do they include what you have to pay the realtors?

    Trying to determine if we should file bankruptcy

    Richard’s Answer

    The starting point will always be fair market value (FMV), which can be the debtor's own opinion (see California Evidence Code § 813(a)(2), which makes the opinion of the owner of property admissible as evidence), an on-line valuation service of such as Zillow, Redfin, etc., a broker's opinion letter, or a formal appraisal. The FMV should always be disclosed, but when stating the value to the bankruptcy estate, it is entirely appropriate to reflect any costs of liquidation, including broker's commissions, escrow costs, etc., as well as possible tax consequences, i.e., capital gains, and the Chapter 7 trustee's fees to demonstrate the actual equity available for the homestead exemption and any potential non-exempt equity available to the estate for payment of creditor claims.

    However, the purpose of the opinion as to value needs to be taken into account. If liquidation is not a factor, then costs of sale cannot be considered. So, if the valuation is for purposes of determining whether a judgment lien against the property can be avoided due to its interfering with (impairing) the debtor's right to a homestead exemption, hypothetical costs of sale cannot be factored in.

    As with my colleagues, whenever possible in this potentially complex area of the law, seeking the advice of a qualified bankruptcy counsel, preferably one who is certified as a specialist in the field, is always preferable.

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