debt ppt lan · 9/16/2019 1 debt collection and debtor issues lea wroblewski and phil martin...

JUST THE BASICS!

4:00 pm The Ethics of Assisting Self RepresentedLitigants

12:00 pm Debtor Issues

This CLE provides new and seasoned lawyers a review of ethics rules, general substan ve law, procedure, and prac cal advice for assis ng self-represented persons at a walk-in self-help center, legal advice clinic, and Nebraska Free Legal Answers {virtual limited advice clinic}.

LAUREL HEER DALE Director of the Nebraska State Bar Associa on Volunteer Lawyers Project

1:30 pm Establishments of Paternity, Custody,Parenting Time & Child Support

This session will review resources available to assist self-represented persons in paternity, custody, modifi ca on and enforcement ac ons involving minor children. The speaker will discuss the Nebraska Child Support guidelines, Nebraska Child Support calculator, types of child custody and paren ng plans. This session will inform par cipants about modifi ca on of orders and the self-help forms. It will also review the enforcement process for child support and paren ng me.

This session will review ethical issues encountered assis ng self-repre-sented li gants on this issue.

REGULAR / LIVE NE MCLE # 181486

DIVOTS CONFERENCE CENTER 4200 WEST NORFOLK AVE NORFOLK

TUESDAY SEPTEMBER 17, 2019 12 pm - 4:15 pm

This session will discuss the Nebraska Rules of Professional Conduct governing nonprofi t and court-annexed limited legal services programs. It will include a review of the Preamble to the Rules and review of Rule 3-506.1, Rule 3-506.5, Rule3-501.7, Rule 3-501.9(a), and Rule 3-501.10.

15 min. ethics

LEA WROBLEWSKI Managing A orney, Legal Aid of Nebraska

This session provides an overview of common issues involving debt-ors and resources available to self-represented li gants, including an interac ve website for debtors hosted by Legal Aid of Nebraska.

12:45 pm Divorce

LORI LEE Managing A orney, Legal Aid of Nebraska

This session provides a brief overview of the requirements to fi le an uncontested divorce using self-help forms and a brief discussion of common issues involving use of self-help forms. Par cipants will learn about alterna ves to divorce, including annulment and legal separa on. This session will review ethical issues encountered in assis ng self-represented li gants on this issue.

2:15 pm Break

2:30 pm Protection Orders

This session will discuss the three types of protec on orders: Domes c Abuse Protec on Order, Harassment Protec on Order, Sexual Assault Protec on Order, including understanding the require-ments and procedural process of each.

This session will review ethical issues encountered assis ng self-rep-resented li gants on this issue.

2:50 pm Tenant Issues

This session will provide and overview of the Nebraska Landlord Tenant Act, tenant and landlord responsibili es, the evic on process, and resources available to self-represented persons, including an interac ve website hosted by Legal Aid of Nebraska.

CAITLIN CEDFELDT Legal Aid of Nebraska

3:30 pm FEMA Benefits

This session will provide an overview of FEMA, the assistance through FEMA and the process for applying for FEMA benefi ts, including appealing denials of assistance. Par cipants will also learn about resources available to vic ms of disaster.

SHIRLEY PENG Managing A orney, Legal Aid of Nebraska

Providing Limited Legal Services in Walk-In and Virtual Legal Clinics

15 min. ethics

15 min. ethics

15 min. ethics

SPONSORED BY:

ACCREDITATION: 4.0 CLE Hours / 1.0 ETHICS Hours

FREE CLE! 4 hours of CLE credit



INCLUDING 1 HOUR OF ETHICS

LUNCH PROVIDED!

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FACULTY BIOS Caitlin Cedfeldt Legal Aid of Nebraska Caitlin Cedfeldt is a graduate of the University of Nebraska College of Law and joined Legal Aid of Nebraska in 2018. Prior to Legal Aid, she worked in private practice where she primarily practiced real estate law. Laurel Heer Dale Nebraska State Bar Association Volunteer Lawyers Project Laurel Heer Dale is Director of the Nebraska State Bar Association Volunteer Lawyers Project. She is responsible for developing, managing, and advancing innovative pro bono programs for Nebraska lawyers. Laurel started her legal career at Legal Aid of Nebraska in 2002, serving as a Staff Attorney, Coordinator of the Private Attorney Involvement program and ultimately Director of Client and Community Engagement Services. Laurel designed and launched several legal hotlines and developed and implemented an online intake system. Laurel has presented on legal aid services to community groups and organizations and at national workshops. She has served as a consultant to other Legal Aid programs concerning access to services. Laurel is an appointed member of the Nebraska Supreme Court Self-Represented Litigation Committee, President of the Board of Directors for Eastern Nebraska Community Action Partnership, and member of Nebraska State Bar Association and Omaha Bar Association. Laurel earned a J.D. in 2000 from Creighton University School of Law. She is admitted to practice in Nebraska and Iowa. Lori Lee Legal Aid of Nebraska Lori Lee received a Bachelor of Science degree in Public Administration from Wayne State College in 1983. In 1986, she received a Juris Doctor degree from University of Nebraska College of Law. That year, she began her legal career with Legal Aid of Nebraska. In 1991, she became the Managing Attorney of the Norfolk Legal Aid of Nebraska office. Shirley Peng Legal Aid of Nebraska Shirley Peng manages the state-wide Disaster Relief Project and the Low-Income Taxpayers Clinic at Legal Aid of Nebraska. She started at Legal Aid of Nebraska as a staff attorney, representing clients in social security disability, bankruptcy, and other public benefits, consumer and tax cases. Shirley graduated in 2006 from the University of California – Los Angeles, with a Bachelor of Arts in Psychology, and in 2009 obtained her Juris Doctorate from the Chapman University School of Law. Shirley is licensed to practice in Nebraska and California, the United States District Court for the District of Nebraska, the 8th Circuit Court of Appeals, and the United States Tax Court. Lea Wroblewski Legal Aid of Nebraska Lea Wroblewski is an attorney at Legal Aid, where she has worked for more than twenty years. Lea specializes in representing clients directly in state debt collection cases and bankruptcies. Lea manages the Lincoln Access to Justice Center where she advises pro se clients about the legal process. Lea recently represented legal aid clients at federal negotiated rulemaking at the US Department of Education. She is a graduate of UNO, with a Bachelor of Arts in philosophy and Creighton University School of Law.

Debtor Issues

Lea Wroblewski

JUST THE BASICS!

PROVIDING LIMITED LEGAL SERVICES IN WALK IN AND VIRTUAL LEGAL CLINICS ,

SEPTEMBER 17, 2019 DIVOTS CONFERENCE CENTER NORFOLK

Legal Aid of Nebraska

9/16/2019

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Debt Collection and Debtor Issues Lea Wroblewski and Phil Martin

Mission

• Legal Aid of Nebraska was established in 1963 and is the only statewide non-profit civil legal aid provider in Nebraska, providing free, high quality services to low-income Nebraskans in all 93 counties.

• Legal Aid’s mission is “to promote justice, dignity, hope and self-sufficiency through quality civil legal aid for those who have nowhere else to turn.”

As Nebraska’s largest nonprofit law firm, we serve:

8 locations.

93 counties.

1 unified goal.

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Priorities

2018 Information CASES CLOSED BY PRIORITY AREA

• Children and Family 6,852 (57%)

• Debt and Finance 1,631 (13%)

• Housing 1,342 (11%)

• Income and Benefits 2,282 (19%)

• 17,915 requests for assistance

• 12,107 cases closed after providing legal assistance (advice to representation)

Overview• Collection Efforts Before Judgment

• Calls, Letters, and FDCPA

• Collecting After Judgment

• What can a collector take?

• What can a debtor protect?

• What is “collection proof”?

• Bankruptcy

• Ch. 7 vs. Ch. 13

• Automatic stay

• What is discharged?

I will help implement the grant in terms of work done and prepare reports.

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Debt Collection

• Debt collection in Nebraska

• Pro Se Advice

• Pro Se Forms

0 10,000 20,000 30,000 40,000 50,000 60,000 70,000 80,000

New Mexico

Nebraska

Credit Management Services

All Other Collection Agencies

All Other Types of Companies

All Collection Suits in New Mexico

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What’s Different About Nebraska?

• Filing fee is REALLY low

• Collection agencies bundle unrelated debts

• Collection agencies file in their name, not the creditor’s name

• Debtors examinations result in arrest warrants

• You can garnish bank accounts AND wages

Litigious Debt Collection

• Most Defendants are unrepresented

• Most Defendants have no defense

• If you don’t file an answer then a judgment is entered

• If you do file an answer then things get even more confusing

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Judgment Principal Amounts by Poverty Category, Douglas County, Nebraska, 2014‐2016

County Poverty Range

TotalCases

% of Total

Cases

Total Sum of Judgment Amounts

% of Total Sum

Average Judgment Amount

Median Judgment Amount

Minimum Judgment Amount

Maximum Judgment Amount

<9.5% 4,505 25.7% $7,253,445.07 27.2% $1,610.09 $630.30 $18.94 $45,989.00

9.5% to 14% 3,095 17.7% $5,054,923.34 19.0% $1,633.25 $614.57 $8.98 $39,014.71

>14% 9,854 56.3% $14,260,707.20 53.6% $1,447.20 $515.00 $2.50 $51,309.14

N/A 53 0.3% $49,560.04 0.2% $935.10 $500.00 $165.00 $3,391.65

Total 17,507 100.0% $26,618,635.65 100.0% $1,520.46 $555.1100 $2.50 $51,309.14

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Advice for Turnips

• Help them understand the civil debt collection monster machine they are caught up in

• Make sure that they have a realistic budget

• Make sure they are opening their mail and have a plan

• Advise them about defenses to judgment

• Advise them about defenses to debt collection

Debt Collectors Are Calling

• Original creditor v. collection agency

• FDCPA

• Do not contact letter – Law Help Nebraska

• Dispute/Verification letter – Law Help Nebraska

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Court-Ordered Collection

• Wage garnishment• 15% head of household• 25% not head of household

• Bank account garnishment• Neb. Rev. Stat. 25-1552

• Execution/Forced sale

• Debtor’s Examination

Property Exempt from Execution

• Homestead: $60,000 (Neb. Rev. Stat. §§ 40-101 to 40-118)• Motor vehicle: $5,000 (Neb. Rev. Stat. § 25-1556(e))• Household goods: $3,000 (Neb. Rev. Stat. § 25-1556(c))• Tools of the trade: $5,000 (Neb. Rev. Stat § 25-1556(d)• Wedding ring/clothing: Unlimited (Neb. Rev. Stat §§

25.1556(a-b))• Health aids: Unlimited (Neb. Rev. Stat § 25.1556(f))• 401K/retirement accounts/pension: Reasonable (Neb. Rev.

Stat § 25.1563.01)• Personal Property: $5,000 (Neb. Rev. Stat. § 25-1552(1))

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Templates/Forms on Law Help Nebraskahttps://lawhelpne.legalaidofnebraska.org/

Bankruptcy• What is bankruptcy?

• Bankruptcy is a set of federal laws and rules that can help individuals and businesses who owe more debt than they can pay….Bankruptcy laws help people who can no longerpay their creditors get a fresh start by liquidating their assets to pay their debts, or by creating a repayment plan. (https://www.neb.uscourts.gov/understanding-bankruptcy)

• The primary purposes of the law of bankruptcy are:

• To give an honest debtor a "fresh start" in life by relieving the debtor of most debts, and

• To repay creditors in an orderly manner to the extent that the debtor has property available for payment. (https://www.neb.uscourts.gov/understanding-bankruptcy)

• Consumer Bankruptcy Chapters

• Ch. 7 – Liquidation

• Ch. 13 – Reorganization (“payment plan”)

Which Chapter is Best?

Why Chapter 7?

Liquidation

Quicker (about 3 months)

No payment plan

Why Chapter 13?

• Don’t qualify for Ch. 7

• Make too much money

• Filed Ch. 7 too recently

• Need to Protect Property

• Secured property at risk

• Value exceeds exemptions

• Co-debtor protection

• Need Certain debts discharged

• Moral Obligation/Want to Repay

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Bankruptcy, cont.

Automatic stay (11 USC § 362)

Discharge of Debts

What debts will NOT be discharged?

Domestic Support obligations

Debts Incurred through Fraud

Criminal Fines

Taxes (usually)

Student Loans (usually)

Taxes Discharged

• When are taxes dischargeable?

• 3-2-240 Rule

• Debt is for tax year at least 3 years ago

• Debtor filed at least 2 years ago

• Debt assessed at least 240 days ago

Student Loans Discharged

• Bankruptcy: Must show an “undue hardship”

• Totality of Circumstances

• “Bankruptcy reviewing courts should consider: (1) the debtor's past, present, and reasonably reliable future financial resources; (2) a calculation of the debtor's and herdependent's reasonable necessary living expenses; and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case. Simply put, if the debtor's reasonable future financial resources will sufficiently cover payment of the student loan debt — while still allowing for a minimal standard of living — then the debt should not be discharged.” Kemp v. United States Dep't of Educ. (In re Kemp), 588 B.R. 226 (B.A.P. 8th Cir. 2018) citing Long v. Educ. Credit MgmtCorp. (In re Long), 322 F.3d (8th Cir. 2003).

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Student Loans, cont.• Other Options for Debtors

• Income based repayment

• “Disability Discharge”

• Total and Permanent Disability

• Department of Education Form OMB No. 1845-0065

• https://disabilitydischarge.com/Forms

• Click on “Discharge Application: TPD”

Bankruptcy Petition (In a Nutshell)• Basic Parts to Voluntary Petition:

• Property (list EVERYTHING you own)

• Creditors (EVERYBODY you owe money to, or might owe money to)

• Household Income (from ALL sources)

• Means Test – Do you qualify for Ch. 7?

• Your monthly expenses

• Statement of Financial Affairs

• “Odds and ends stuff”

A Few Things To Pay Attention To

• Preferential payments

• Co-debtors

• Secured Creditors/Collateral

• Statement of Intentions

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Filing and Next StepsDocuments required to file:

The Voluntary Petition and Schedules

Filing fee OR waiver

Credit Counseling Certificate

Paystubs for 60 days before filing

The Trustee Hearing

Debtor is assigned a trustee to review the petition and manage the bankruptcy estate

Discharge

Any Questions?

LegalAidOfNebraska.org

We make equal justice happen.

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Divorce

JUST THE BASICS!



Lori LeeLegal Aid of Nebraska

9/16/2019

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DIVORCE BASICS: Divorce, Legal Separation, and Annulment Proceedings

Mark T. Bestul and Lori McClain Lee

[email protected]

[email protected]

I. DIVORCE

I. DIVORCE

Who may seek a divorce in Nebraska: Neb. Rev. Stat. § 42‐349

1. Any party to a marriage may seek dissolution of that marriage in a Nebraska court if at least one of the parties had actual residence in Nebraska with a bona fide intent of making Nebraska his or her permanent home.

2. The residency must be at least one year of residence prior to the filing of the complaint.

3. The residency requirement may not be waived by either party or by the court. If neither party to the marriage meets the residency requirement, the court lacks subject matter jurisdiction over the divorce.

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I. DIVORCE

Where to file a Complaint for Dissolution: Neb. Rev. Stat. § 43‐348

1. Generally, as to most civil matters in Nebraska, there is not a venue requirement. Contraryto the general rule, most family law causes of action have a venue requirement.

2. A proceeding for divorce must be brought in the district court of the county in which one ofthe parties resides.

3. The Plaintiff may request the matter be heard by a county court judge. The matter is still filed in the district court and is still considered a district court case. See Neb. Rev. Stat. §§42‐352; 25‐2740(2).

I. DIVORCEWhat to file:

1. Complaint for Dissolution of Marriage – seeNeb. Rev. Stat. § 42‐353

2. Filing Fees or Motion to Proceed in forma pauperis.

A.Filing Fee for Dissolution of Marriage: $158.00

B.Motion to Proceed in forma pauperis.

I. Motion

II. Attached poverty affidavit

III.Proposed order3. Social Security Numbers, Dates of Birth, and Gender

4. Vital Statistics Information worksheet

5. Praecipe for a Summons, or

6. Voluntary Appearance

I. DIVORCE

Perfection of Service: Neb. Rev. Stat. § 25‐217

1. An action is commenced on the day the complaint is filed with the court.

2. Each defendant in the action must be properly served within one hundred eighty days of the commencement of the action. If the action is stayed or enjoined during the one‐hundred‐eighty‐day period, then any defendant who was not properly served before the action was stayed or enjoined must be properly served within ninety days after the stay or injunction is terminated or modified so as to allow the action to proceed.

3. If any defendant is not properly served within the time specified by subsection (2) of this section then the action against that defendant is dismissed by operation of law. The dismissal is without prejudice and becomes effective on the day after the time for service expires.

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I. DIVORCE

Parenting Act: Neb. Rev. Stat. §§ 43‐2920 to 43‐2943

1. Parenting class – seeNeb. Rev. Stat. § 43‐2928

2. Parenting plan – see Neb. Rev. Stat. §§ 42‐364; 43‐2929

3. Mediation – see Neb. Rev. Stat. §§ 42‐364; 43‐2936; 43‐2937

I. DIVORCE

Waiting Period: Neb. Rev. Stat. § 42‐363 – Final hearing cannot take place until at least 60 days after perfection of service.

I. DIVORCE

Local Rules: Each judicial district has local rules and some of them are specific to domestic cases. These rules may govern the exchange of documents and information prior to trial, the preparation of a pre‐trial memorandum, etc.

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I. DIVORCE

Jurisdiction when there is an out‐of‐state party:

See Metzer v. Metzer, 25 Neb. App. 757 (2018) – “Under the doctrine of divisible divorce, divorce proceedings contain two principal components: (1) the dissolution of the marital status and (2) the adjudication of the incidences of the marriage. The divisibility doctrine holds that while a state court may have jurisdiction over the marriage to dissolve it, that same court may lack personal jurisdiction to adjudicate personal matters such as support or alimony.”

SELF‐HELP RESOURCES

NEBRASKA SUPREME COURT WEBSITEhttps://supremecourt.nebraska.gov/self‐help/families‐children


LAWHELP NEBRASKAhttps://lawhelpne.legalaidofnebraska.org

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LAWHELP NEBRASKAhttps://lawhelpne.legalaidofnebraska.org


LEGAL AID OF NEBRASKAwww.legalaidofnebraska.org

II. LEGAL SEPARATION

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Legal Separation; findings – see Neb. Rev. Stat. § 42‐361.01

1. Court must make findings that the parties shall live separate and apart

2. No requirement to prove the marriage is irretrievably broken


Residency

1. Legal separation does not have the one‐year residency requirement of a dissolution action.

2. The action still must be filed in the district court of a county in which one of the parties resides.


Amendment of Pleadings – see Neb. Rev. Stat. § 42‐350

“If a complaint for legal separation is filed before residence requirements for dissolution of marriage have been complied with, either party, upon complying with such requirements, may amend his or her pleadings to request a dissolution of marriage….”

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Support – seeNeb. Rev. Stat. § 42‐368

When a legal separation is decreed, the court may order payment of such support by one party to the other as may be reasonable, having regard for the circumstances of the parties and the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of such party. Orders for support may be modified or revoked for good cause shown upon notice and hearing, except as to amounts accrued prior to date of service of motion to modify, to which date modification may be retroactive. Orders for child support in cases in which a party has applied for services under Title IV‐D of the Social Security Act, as amended, shall be reviewed as provided in sections 43‐512.12 to 43‐512.18.


Setting aside a decree of legal separation – seeNeb. Rev. Stat. § 42‐372.03

A legal separation decree shall provide that in case of a reconciliation at any time thereafter, the parties may apply to set aside the decree. Upon such application, the court shall set aside the decree and make such orders as are just and reasonable under the circumstances.

III. ANNULMENT

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III. ANNULMENT

Procedure – see Neb. Rev. Stat. § 42‐373

Actions for annulment of a marriage shall be brought in the same manner as actions for dissolution of marriage and shall be subject to all applicable provisions of sections 42‐347 to 42‐381 pertaining to dissolution of marriage, except that the only residence requirement shall be that the plaintiff is an actual resident of the county in which the complaint is filed.

III. ANNULMENT

Conditions – seeNeb. Rev. Stat. § 42‐374. A marriage may be annulled for any of the following causes:

1. The marriage between the parties is prohibited by law;

2. Either party is impotent at the time of the marriage;

3. Either party had a spouse living at the time of marriage; or

4. Force or fraud

III. ANNULMENT

Disability – seeNeb. Rev. Stat. § 42‐375

Annulment actions on behalf of persons under disability may be brought by a parent or adult next friend.

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III. ANNULMENT

Denial – see Neb. Rev. Stat. § 42‐375

An annulment may not be decreed if the marriage is found to be voidable and the parties freely cohabited after the ground for annulment has terminated or become known to the innocent party.

III. ANNULMENT

Doubted Marriage – Procedure – seeNeb. Rev. Stat. § 42‐376: When the validity of a marriage is doubted, either party may file a complaint and the court shall decree it annulled or affirmed according to the proof. Notice shall be given the other party as in the case of a complaint for dissolution of marriage.

III. ANNULMENT

Legitimacy of Children ‐ see Neb. Rev. Stat. § 42‐377: Children born to the parties, or to either spouse, in a marriage relationship which may be dissolved or annulled pursuant to sections 42‐347 to 42‐381 shall be legitimate unless otherwise decreed by the court, and in every case the legitimacy of all children conceived before the commencement of the suit shall be presumed until the contrary is shown.

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IV. ETHICS



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Establishments of Paternity, Custody, Parenting Time

& Child Support

JUST THE BASICS!



Lori Lee Legal Aid of Nebraska

9/16/2019

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ESTABLISHMENT OF PATERNITY,

CHILD SUPPORT, CUSTODY & PARENTING TIME

Muirne Heaney and Lori McLain Lee

[email protected]

[email protected]

ESTABLISHMENT OF PATERNITY

• ACKNOWLEDGMENT OF PATERNITY

• CIVIL COMPLAINT


• 43-1411

• MUST BE ACCOMPLISHED BY MOTHER OR FATHERWITHIN 4 YEARS OF THE DATE THE CHILD WASBORN.

• DOES NOT APPLY TO STATE, CHILD OR NEXTFRIEND.

• A NON-CUSTODIAL PARENT CANNOT BE “NEXTFRIEND.”

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• SIGNING THE BIRTH CERTIFICATE (AOP)

• FORMS MUST BE AVAILABLE IN HOSPITAL 43-1408.01

• CAN BE RESCINDED FOR NO REASON W/IN 60DAYS

• AFTER 60 DAYS AOP = LEGAL FINDING/PRESUMPTION OF PATERNITY

• 43-1409


DOES A SIGNED AOP TOLL THE STATUTE OF LIMITATIONS?


AOP CHALLENGE AFTER RECISSION PERIOD

• FRAUD

• DURESS

• MATERIAL MISTAKE OF FACT

• 43-1409, 43-512.04(4)

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CAN A PERSON BENEFIT FROM THEIR OWN FRAUD?


• BY COMPLAINT

• WHO CAN FILE

• STATE

• MOTHER

• FATHER

• 43-1411

ESTABLISHMENT OF PATERNITY, CUSTODY, PARENTING TIME & CHILD SUPPORT

RESOURCES

• NEBRASKA SUPREME COURT SELF-HELP WEBSITE

• INTENDED FOR CASES WHERE THERE IS NO DISAGREEMENT

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• COMPLAINT FILED

• IN COUNTY WHERE CHILD LIVES

• IN COUNTY WHERE FATHER LIVES IF PROCEEDINGUNDER UNIFORM INTERSTATE FAMILY SUPPORTACT

• 43-1411


• ∆ ENTITLED TO AN ATTORNEY

• ULTIMATE SANCTION OF JAIL FOR NON-PAYMENT

• RIGHT ESTABLISHED BY CASELAW

• See Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757 (1988)

ESTABLISHMENT OF CHILD SUPPORT

• NEBRASKA CHILD SUPPORT GUIDELINES

• REBUTTABLE PRESUMPTION BEST INTERESTS

• MUST BE USED IN ALL CASES INVOLVING CHILDSUPPORT

• §4-203 Nebraska Child Support Guidelines

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• EARNINGS DO NOT INCLUDE MEANS TESTEDINCOME

• WELFARE

• SSI

• SSDI ≠ MEANS TESTED INCOME


• ANNUAL SALARY / 12 MONTHS

• HOURLY WAGE x 40 HOURS (32) x 52 WEEKS/12MONTHS.

ESTABLISHMENT OF SUPPORT

ADAM ASTLEY

CHILD SUPPORT CALCULATOR

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•WHAT INFO DOES A SRL NEED FOR ACALCULATION?

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• IMPUTING INCOME

• BASED ON NONCUSTODIAL PARENT’S INCOME ANDOTHER EVIDENCE OF ABILITY TO PAY

• ALL EARNINGS AND INCOME

• BASIC SUBSISTENCE NEEDS OF NON-CUSTODIAL PARENT

• SPECIFIC CIRCUMSTANCES OF NON-CUSTODIAL PARENT

COURT MAY NOT ENTER AN ORDER THAT PUTS AN OBLIGOR BELOW THE FEDERAL POVERTY GUIDELINES

• $1048.80 FAMILY OF ONE

• $1409.2 FAMILY OF TWO

• $1775.5 FAMILY OF THREE

• §4-218


• COURT MAY NOT ENTER AN ORDER THAT PUTS AN OBLIGOR BELOW THE FEDERAL POVERTY GUIDELINES

• $1048.80 FAMILY OF ONE

• $1409.2 FAMILY OF TWO

• $1775.5 FAMILY OF THREE

• §4-218


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MINIMUM ORDER• $50.00 PER MONTH

• RECENT PROPOSED CHANGES WOULDGIVE A REFEREE OR JUDGE DISCRETIONTO GO LOWER

• §4-209


PUNISHMENT v. PROBABILITY OBLIGOR WILL BE ABLE TO PAY


ARREARS

• STATE CAN GARNISH ONGOING + 65% OF SAME

• PAYMENT PLANS WITH CSS

• 15 USC § 1673 (b)(2)(B)

• § 43-1217

ENFORCEMENT

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• ADMINISTRATIVE SANCTIONS

• CONTEMPT PROCEEDINGS

• AFFIRMATIVE OBLIGATION TO ENSURE A DEFENDANT CAN PAY BEFORE FILING THECONTEMPT ACTION

ENFORCEMENT

CRITICAL QUESTION

• CAN THE NON-CUSTODIAL PARENT AFFORD TO PAY THE SUPPORT

• THE STATE NEEDS TO GIVE THE COURT THIS INFORMATION

ENFORCEMENT

• ADMINISTRATIVE REVIEW

• MUST BE REVIEWED EVERY THREE YEARS 43-512.12

• COMPLAINT

MODIFICATION

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• LEGAL STANDARDS

• CASELAW

• CHILD SUPPORT GUIDELINES

MODIFICATION

• COMPLAINANT MUST SHOW A MATERIAL CHANGE IN CIRCUMSTANCES THAT

• HAPPENED AFTER ENTRY OF THE ORIGINAL DECREE

• WAS NOT CONTEMPLATED WHEN THE DECREE WAS ENTERED

• See Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018)

• CHANGE IS IN CHILD’S BEST INTERESTS

MODIFICATION

• MATERIAL CHANGE IN CIRCUMSTANCES

• CHANGE IN INCOME

• 3 MONTHS – 6 MONTHS

• APPLICATION OF GUIDELINES = 10% DIFFERENCE W/$ DIFFERENCE OF $25.00 PER MONTH

• PAYOR ≠ OUTCOME

• 4-217

MODIFICATION

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NEBRASKA SUPREME COURT FORMS

https://supremecourt.nebraska.gov/self-help/families-children/modification-child-support

• Complaint (1 for increase, 1 for decrease)

• Confidential Employment & Health Information

• SSN, Gender & birth dates form

• Financial Affidavit of support

MODIFICATION


• Voluntary App. (form & letter)

• Praecipe

• Notice of Hearing

• Proposed Order

MODIFICATION

• INITIATED BY COMPLAINT

• CORROBORATED BY DNA TEST RESULTS

• ∆ ≠ AOP

• CHILD NOT ADOPTED OR CONCEIVED BY ARTIFICIAL INSEMINATION

DISESTABLISHMENT

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COURT MUST APPOINT GAL

• 43-1412.01

DISESTABLISHMENT

• WHAT IF THE NON-CUSTODIAL PARENT SIGNED ANAOP?

• ANY RELIEF?

• ENTITLED TO AN ATTORNEY?

• State v Julio G., 303 Neb. 207 (2019)

DISESTABLISHMENT

• LEGAL CUSTODY

• PHYSICAL CUSTODY

CUSTODY

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• BOTH PARENTS MUST TAKE AN ENTRY LEVEL PARENTING CLASS

• WHAT IF ONE PARENT REFUSES?

CUSTODY

PHYSICAL CUSTODY

THE AUTHORITY & RESPONSIBILITY RE A CHILD’S PLACE OF RESIDENCE & EXERTION OF CONTINUOUS PERENTING TIME FOR SIGNIFICANT PERIODS OF TIME

THE AUTHORITY & RESPONSIBILITY FOR MAKING FUNDAMENTAL DECISIONS REGARDING A CHILD’S WELFARE, E.G., SCHOOLING, RELIGION, MEDICAL CARE

LEGAL CUSTODY

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• DIFFERENT TYPES OF CUSTODIALARRANGEMENTS

• SOLE CUSTODY

• JOINT LEGAL CUSTODY

• JOINT LEGAL & PHYSICAL CUSTODY

CUSTODY

• CLERK OF COURT PREPARES INFORMATION RE PARENTING CLASSES & MEDIATION TO BE DISTRIBUTED UPON FILING

• ALSO PROVIDES INFO ON LITIGATION PROCESS, A COURT TIMELINE, MEDIATION & ADR, RESOURCES FOR VICTIMS OFDV OR CHILD ABUSE & INTERVENTION PROGRAMS FOR ABUSERS

• 43-2925

CUSTODY

• DIFFERENT TYPES OF CUSTODIAL ARRANGEMENTS

• SOLE CUSTODY


• JOINT LEGAL & PHYSICAL CUSTODY

CUSTODY

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• THERE SHALL BE A PARENTING PLAN IN ANY CASE WHERE PARENTING FUNCTIONS ARE AT ISSUE

• 43-2929

CUSTODY

• PARENTING PLANS

• SOLE CUSTODY

• PARENTING TIME

• MINIMUM REQUIREMENT: EVERY OTHER WEEKEND, ONE EVENING PER WEEK, ALTERNATING HOLIDAYS

•WILSON V. WILSON

CUSTODY


• MUTUAL RESPONSIBILITY AND AUTHORITY FORMAKING FUNDAMENTAL DECISIONS RE A CHLD’SWELFARE

• PRIMARY PARENT FINAL DECISION MAKER

CUSTODY

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• JOINT CUSTODY

• PHYSICAL & LEGAL

• MUTUAL RESPONSIBILITY & AUTHORITY RE CHILD’SWELFARE & PLACE OF RESIDENCE

• “THE EXERTION OF CONTINUOUS BLOCKS OFPARENTING TIME BY BOTH PARENTS OVER THECHILD FOR SIGNIFICANT PERIODS OF TIME.”

CUSTODY

• LEGAL & PHYSICAL CUSTODY

• APPORTIONMENT OF PARENTING TIME,INCLUDING HOLIDAYS, SPECIAL VACATIONS,BIRTHDAYS, MOTHERS’ & FATHERS’ DAY,SUMMER VACATIONS

PARENTING PLANS

• TRANSITION PLAN: WHO, WHAT, WHERE & WHEN

• PROCEDURES FOR MAKING DECISIONS RE CARE & CONTROL OF CHILD

• REMEDIATION

• SAFETY PROVISIONS IF NECCESSARY

PARENTING PLANS

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• PROVISION TO SECURE REGULAR & CONTINUOUS SCHOOL ATTENDANCE & PROGRESS

• NOTIFICATION WHEN ADDRESS CHANGES

• ENCOURAGEMENT FOR MUTUAL DISCUSSION RE FUNDAMENTAL DECISIONS AFFECTING CHILD’S WELFARE

• 43-2929

PARENTING PLANS

• BEST INTERESTS OF THE CHILD

• PLAN THAT PROVIDES FOR CHILD’S SAFETY, EMOTIONAL GROWTH, HEALTH, STABILITY, PHYSICAL CARE & REGULAR & CONTINUOUS SCHOOL ATTENDANCE & PROGRESS.

• 43-2923

PARENTING PLANS

• COURT HAS AN INDEPENDENT DUTY TO FIND THAT A PARENTING PLAN IS IN A CHILD’S BEST INTERESTS?

• CAN THAT BE WAIVED?

PARENTING PLANS

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• COURT CREATED

• BEST INTERESTS

• EACH PARENT’S RELATIONSHIP WITH MINOR CHILDBEFORE ACTION FILED

• CHILD’S WISHES

• GENERAL HEALTH, WELFARE & SOCIAL BEHAVIOR OFCHILD

PARENTING PLANS

• COURT CREATED

• BEST INTERESTS

• CREDIBLE EVIDENCE OF DV

• CREDIBLE EVIDENCE OF CHILD ABUSE

•43-2923

PARENTING PLANS

• DEFAULT PARENTING PLANS

• LOCAL RULES

PARENTING PLANS

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https://supremecourt.nebraska.gov/self-help/families-children/modification-custody-or-parenting-plan

• BY AGREEMENT

• IF NO AGREEMENT

• MATERIAL CHANGE IN CIRCUMSTANCES

• NOT CONTEMPLATED AT TIME OF TRIAL

• BEST INTERESTS OF THE CHILD

MODIFICATION OF CUSTODY OR PARENTING PLAN


• ENFORCEMENT OF CHILD SUPPORT ORDERS

https://supremecourt.nebraska.gov/self-help/families-children/enforcement-child-support-orders

• ENFORCEMENT OF VISITATION ORDERS

https://supremecourt.nebraska.gov/self-help/families-children/enforcement-visitation-orders

• OSC MOTION, AFFIDAVIT, PROPOSED ORDER

CONTEMPT

• Help Desk

• Normal conflict rules do not apply unless you have reason to believe that a conflict exists.

• 3-506.5

ETHICAL ISSUES

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• An attorney/client relationship is established

• No expectation that the relationship will continue beyond the limited scope of the consultation

ETHICAL ISSUES

• YOU MUST SECURE A CLIENT’S CONSENT TO THE LIMITED SCOPE OF THE REPRESENTATION

• IF LIMITED SCOPE OF THE CONSULTATION IS NOT REASONABLE, YOU CAN STILL PROVIDE ADVICE BUT MUST ALSO TELL A CLIENT THAT S/HE NEEDS AN ATTORNEY

ETHICAL ISSUES

• LIMITED SCOPE REPRESENTATION

• YOU CAN PREPARE PLEADINGS, BRIEFS OR OTHER DOCUMENTS AS LONG AS YOU TELL THE COURT THAT THE FILING WAS PREPARED BY YOU. YOU MUST ADD YOUR NAME, BUSINESS ADDRESS & BAR NUMBER.

• 3-501.2

ETHICAL ISSUES

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Protection Orders

JUST THE BASICS!



Lori Lee Legal Aid of Nebraska

9/16/2019

1

Protection OrdersOverview, Changes in the Law, and Ethical Issues

Sara Rips and Lori McClain [email protected]@legalaidofnebraska.org

THREE TYPES OF PROTECTION ORDERS

1.DOMESTIC ABUSE PROTECTION ORDERS

2.HARASSMENT PROTECTION ORDERS

3.SEXUAL ASSAULT PROTECTION ORDERS

PROCEDURAL OVERVIEW• Petition and Affidavit: Victim files a Petition andAffidavit to Obtain a Domestic Abuse

Protection Order with the clerk of the district court.

• Judicial Review: The judge assigned to the case reviews the petition and affidavit. Thecourt can enter an ex parte order if it reasonably appears from the specific facts included in the affidavit that the petitioner will be in immediate danger of abuse before the matter canbe heard on notice. If the court elects not to issue an order ex parte, they are supposed toimmediately schedule an evidentiary hearing within 14 days from the date the victim filed the petition.

• Respondent: If the court enters an ex parte order, the Court shall serve the Respondent. Respondent has the opportunity to request a hearing.

• Order to Show Cause: If requested, the court schedules a show cause hearing within 30days. The court hears the matter and then makes a determination to affirm or dismiss the protection order.

• Duration: The protection order is valid for one year from the date the original Order wasfiled (whether entered ex parte or after hearing the Court’s Order to Show Cause) with the option to renew.

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SELF‐HELP RESOURCESNEBRASKA SUPREME COURT WEBSITE https://supremecourt.nebraska.gov/self‐help/protection‐abuse

SELF‐HELP RESOURCESLAW HELP NEBRASKA THROUGH LEGAL AID OF NEBRASKAhttps://lawhelpne.legalaidofnebraska.org

SELF‐HELP RESOURCESLEGAL AID OF NEBRASKAwww.legalaidofnebraska.org

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UPCOMING CHANGES TO THE LAW

Starting in January 2020, there are some noteworthy changes to the

Protection from Domestic Abuse Act (Neb. Rev. Stat. §§ 42‐901 – 42‐931)

CHANGES TO THE RENEWAL LAWSNEB. REV. STAT. § 42‐924

• Renewal Time Frame: The law used to provide Petitioners with only 30 days prior to the date of expiration to request a renewal. Petitioners now have 45 days.

• Renewal Clarifications: Under the new law, a Petitioner may renew a protectionorder on the basis of his or her affidavit stating that there is no material change inrelevant circumstances since entry of the order if:

• the petitioner seeks no modification of the order; and

• respondent was properly served with notice of the petition for renewal and does not file a request for hearing; or

• Respondent was properly served with notice of the petition, requests a hearing,receives notice of the hearing and then fails to appear

CHANGES TO PETITIONS AND AFFIDAVITS Neb. Rev. Stat. § 42‐924

• “The petition for a protection order shall state the events and dates orapproximate dates of acts constituting the alleged domestic abuse, including the most recent and most severe incident or incidents.”

• Before this change, there was no clear requirement for what must be included within adomestic abuse protection order.

• “The protection order shall specify to whom relief under this section was granted.”

• This change will be most relevant where protection orders are brought on behalf ofothers, i.e. children and wards.

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CHANGES TO THE FORMSNeb. Rev. Stat. § 42‐924.02

• “The clerk of the district court shall make available standard petition and affidavit forms forall types of protection orders provided by law with instructions for completion to be usedby a petitioner. Affidavit forms shall request all relevant information, including, but notlimited to: A description of the most recent incident that was the basis for theapplication for a protection order and the date or approximate date of the incident and,if there was more than one incident, the most severe incident and the date orapproximate date of such incident. The clerk and his or her employees shall not provideassistance in completing the forms. The State Court Administrator shall adopt andpromulgate the standard petition and affidavit forms provided for in this section as well asthe standard temporary ex parte and final protection order forms and provide a copy ofsuch forms to all clerks of the district courts in this state. These standard temporary exparte and final protection order forms shall be the only such forms used in this state.”

CHANGES TO THE TIME FOR REQUESTS FOR ORDERS TO SHOW CAUSE

Neb. Rev. Stat. § 42‐925• “If the respondent wishes to appear and show cause why the order should not remain in

effect, he or she shall affix his or her current address, telephone number, and signature to the form and return it to the clerk of the district court within ten business days after service upon him or her.”

• “A temporary ex parte order shall be affirmed and deemed the final protection order and service of the temporary ex parte order shall be notice of the final protection order if the respondent has been properly served with the temporary ex parte order and:

(a) The respondent fails to request a show‐cause hearing within ten business days after service upon him or her and no hearing was requested by the petitioner or upon the court’s own motion;

(b) The respondent has been properly served with notice of any hearing requested by the respondent, the petitioner, or upon the court’s own motion and fails to appear at such hearing; or

(c) The respondent has been properly served with notice of any hearing requested by the respondent, the petitioner, or upon the court’s own motion and the protection order was not dismissed at the hearing.”

CHANGES TO THE TIME FOR REQUESTS FOR ORDERS TO SHOW CAUSE

Neb. Rev. Stat. § 42‐925• The change is the Legislature’s response to Courtney v. Jimenez, 25 Neb. App. 75 (2017).

• In Courtney, the Court of Appeals held that the 5 day deadline was discretionary rather than mandatory. The Court relied on prior precedent that when the time limits are not central to the purpose of the statute, courts should be reluctant to view the time limits as mandatory.

• With the change in the law, the Legislature added language that makes the time limit more central because a failure to respond within the time limit period clearly converts the temporary order to a final order if the respondent fails to request a hearing within 10 days of service.

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CHANGES TO COURT’S ABILITY TO TREAT AS MORE APPROPRIATE TYPE OF PO

Neb. Rev. Stat. § 42‐925• “If an order under section 42‐924 is not issued ex parte, the court shall immediately

schedule an evidentiary hearing to be held within fourteen days after the filing of the petition, and the court shall cause notice of the hearing to be given to the petitioner and the respondent. Any notice provided to the respondent shall include notification that a court may treat a petition for a domestic abuse protection order as a petition for a harassment protection order or a sexual assault protection order if it appears from the facts that such other protection order is more appropriate and that the respondent shall have an opportunity to show cause as to why such protection order should not be entered. If the respondent does not appear at the hearing and show cause why such order should not be issued, the court shall issue a final protection order.”

• “ A court may treat a petition for a domestic abuse protection order as a petition for aharassment protection order or a sexual assault protection order if it appears from the facts in the petition, affidavit, and evidence presented at a show‐cause hearing that such other protection order is more appropriate and if:

(a) The court makes specific findings that such other order is more appropriate; or

(b) The petitioner has requested the court to so treat the petition. ”

ETHICAL ISSUESWhat to expect when dealing with

protection orders

FILLING OUT PROTECTION ORDERS

• There can be issues with helping clients fill out petitions for protectionorders.

• The best practice is to encourage the client to contact an organization centered around helping victims of domestic and sexual violence and to supply the client with the contact information for the closest domestic violence center. The advocates at these organizations are trained to counsel victims of harassment and/or domestic and sexual violence regarding protection order matters.

• A Petitioner may have better results when they have the assistance of anadvocate when completing the petition.

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COMMUNICATING WITH CLIENTS• This is a very difficult time in people’s lives.

• It is important to be understanding and supportive of clients. Some clients aregoing to need a lot of support and patience.

• Clients often struggle to articulate what is necessary to be successful in court. It isimportant to meet with the client in advance to discuss testimony and to explain how the proceedings will go.

• The more you can help the client develop a realistic expectation of how the hearing will go, the better. Generally, clients are anxious about the hearing, facing his or her abuser, being questioned by counsel, etc., and helping them to really understand the proceedings will better prepare them for what to expect, which inturn will help to ease their anxiety about the process.

RESTRAINING ORDERSNeb. Rev. Stat. § 42‐357

• Sometimes counsel for a respondent will suggest the entry of a restraining order in a companion divorce or custody matter in exchange for the petitioner asking the court to vacate a protection order.

• It is extremely important to discuss the pros and cons of this “offer” with your client.

LegalAidofNebraska.org


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Tenant Issues

JUST THE BASICS!



Caitlin CedfeldtLegal Aid of Nebraska

9/16/2019

1

Tenants’ Rights and Responsibilities

Scott Mertz

Caitlin Cedfeldt

Mission

• Legal Aid of Nebraska was established in 1963 and is the only statewide non-profit civil legal aid provider in Nebraska, providing free, high quality services to low-income Nebraskans in all 93 counties.

• Legal Aid’s mission is “to promote justice, dignity, hope and self-sufficiency through quality civil legal aid for those who have nowhere else to turn.”

As Nebraska’s largest nonprofit law firm, we serve:

8 locations.

93 counties.

1 unified goal.

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Priorities

Residential Landlord Tenant ActNeb. Rev. Stat. §§ 76-1401 to 76-1449

• The Act details the obligations of the landlord and the tenant.

• The Act provides basic outlines about what the contract between

a landlord and tenant can and cannot include.

• The Act provides defaults for when the landlord and tenant do

not enter in to a written lease.

Residential Landlord Tenant ActNeb. Rev. Stat. §§ 76-1401 to 76-1449

• Most landlord/tenant disputes are governed by this Act.

• 7 Day Notice for Non-Payment

• 5 Day Notice for Criminal Activity

• 14/30 Day Notices (from or to Landlord)

• Access to the Unit

• Access to Essential Services

• Waiver

• Security Deposits

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Landlord’s ResponsibilitiesNeb. Rev. Stat. § 76-1419

Substantially comply with housing codes

Make all necessary repairs to put & keep the premises in a fit &habitable condition

Keep all common areas safe & clean

Maintain in good & safe working order & condition all electrical, plumbing, sanitary, heating, ventilating, air conditioning, & other facilitiesand appliances, including elevators, supplied or required to be supplied by landlord

Provide trash receptacles

Supply running water & reasonable amounts of hot water at all times and reasonable heat

Landlord’s ResponsibilitiesWhat does that mean?

Landlords have an obligation to make sure tenants live in dwellings that are

1.Clean

2.Safe

3.Have working utilities and appliances

What if the landlord doesn’t meet their obligations?

• When a landlord’s non-compliance materially affects health & safety, tenants can deliver written notice to the landlord.

• This is called a 14/30 day notice

• The tenant must articulate in writing the specificissues and that the rental agreement willterminate in 30 days if the landlord does notmake the necessary repairs within 14 days.

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What if the landlord doesn’t meet their obligations?

• The tenant may recover damages and obtain injunctiverelief for any noncompliance by the landlord with therental agreement or 76-1419.

• If the landlord’s noncompliance is willful, the tenant may recover reasonable attorney’s fees.

Running Water, Hot Water, Heat, & Essential ServicesNeb. Rev. Stat. § 76-1427

• If the landlord deliberately or negligently fails to supply running water, hot water, or heat, oressential services, the tenant may give written notice to the landlord specifying the breach.

• The tenant may be able to:

• Obtain these services and deduct their actual and reasonable costs from the rent.

• Recover damages based on the decrease in fair rental value of the unit.

• Procure reasonable substitute housing during the period of noncompliance, and be excused from paying rent for this period.

• *****Tenants should seek the advice of an attorney before taking these steps.

Tenant’s ResponsibilitiesNeb. Rev. Stat. § 76-1421

Tenants must maintain the unit by:

Complying with obligations imposed on tenants by the municipal building & housing codes

Keeping their part of the premises safe & clean as the condition of the premises permit

Disposing of waste and garbage from the dwelling unit

Keeping plumbing clean as its condition permits

Using in a reasonable manner all electrical, plumbing, sanitary, heating,ventilating, air conditioning & other facilities & appliances including elevators

Not destroying or defacing the premises on purpose

Behaving in a manner that does not disrupt others

Abiding by any applicable neighborhood association rules

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Tenant’s Responsibilities What does that mean?

• Tenants, just like landlords, have certain responsibilities.

• Tenants must:

1.Follow health & safety codes

2.Keep their unit as clean and safe as the condition of the unit allows

3.Use utilities and appliances properly and safely

4.Not purposefully destroy the premises

5.Follow rules of neighborhood association, condo association, or other governing entity of the dwelling unit

What if the tenant doesn’t meet their obligations?

Neb. Rev. Stat. § 76-1431

• 7-Day Notice: Failure to pay rent. You now have seven days to pay.

• 5-Day Notice: If the tenant (occupant, member of tenant’s household, guest, or other person who is under tenant’s control or who is present with tenant’s consent) engages in any violent criminal activity, illegal sale of drugs, or any other activity that threatens the health or safety of other tenants, the landlord, or the landlord’s employees or agents on the premises.

• 14/30-Day Notice: Breach of the rental agreement. This is similar to the 14/30 day notice for landlords. The landlord must detail the breach and explain that the lease will terminate if not remedied in 14 days.

• Example: Pet on the property when not allowed in lease.

Access to the Dwelling UnitNeb. Rev. Stat. § 76-1423

• Generally, a landlord must have consent to enter a unit.

• The tenant cannot unreasonably deny a landlord access to the unit.

• Landlords should give tenants at least one day’s notice of the intent to enter the unit & enter only at reasonable times.

• If there is an emergency, the landlord can enter the unit without the consent of the tenant.

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WaiverNeb. Rev. Stat. § 76-1433

Acceptance of rent with knowledge of a default by tenant or

acceptance of performance by the tenant that varies from the terms

of the rental agreement or rules or regulations subsequently adopted

by the landlord constitutes a waiver of his right to terminate the rental

agreement for that breach, unless otherwise agreed after the breach

has occurred.

What if the lease expires?

• Most leases for rental units are one (1) year leases. At the end of the year, the lease transitions into a month-to-month lease.

• Either party can choose to end the month-to-month lease by providing the other party with written notice at least 30 days in advance.

• Note: If a party gives notice not on the first/last day of a month, like on November 8, 2018, the tenancy ends on December 31. This is so each party has sufficient time.

What if the Rental Agreement is Terminated?

• The landlord is entitled to possession of the unit. If thetenant doesn’t willingly vacate the unit, the landlord canpursue legal action in court.

• A landlord can’t recover possession by purposefuldiminution of services or by interrupting electric, gas, water,or other essential service. Basically, the landlord needs acourt order and cannot force tenants out.

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Judicial Eviction Process

• Complaint for Restitution: it must include

• The facts, with particularity

• Reasonably accurate description of the premises

• Compliance with notice provisions of URLTA

• Summons: must be served within 3 days

• Either personal services or constructive with an affidavit of first class mailing

• The summons will have the date and time of the hearing

• Trial: shall be 10 – 14 days from the issuance of the summons

Trial

• On the day of trial, Defendant may appear and answer and assert any legal or equitable defense, setoff, or counterclaim.

• 76-1433 states no continuance shall be granted unless extraordinary cause is shown to the court.

• Writ: if restitution ordered, the writ will issue. The writ will be served on tenant within ten days of issuance.

• Appeal: an appeal may stay execution of any writ so long as defendant deposits judgment and costs – or surety bond – and then pays to the court the monthly rent called for at that time the complaint was filed.

Security DepositsNeb. Rev. Stat. § 76-1416

• Security deposits cannot be greater than one month’s periodic rent.

• Pet deposits cannot be in excess of ¼ of the one month’s periodic rent.

• Landlords are not to use the security deposit, but rather set it aside & only use it after the tenancy has ended to apply to unpaid rent or damages done by tenant.

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Return of Security DepositsNeb. Rev. Stat. § 76-1416

• The burden used to be on tenant to send a written demand for the return of the deposit.

• Now the landlord has an obligation to return the deposit or provide a written itemization of damages within 14 days of the last date of the tenancy.

• If a landlord fails to comply, their prior tenant can sue to recover the money due and reasonable attorney’s fees.

Disposition of Personal Property Landlord and Tenant Act

Neb. Rev. Stat. §§ 69-2301 to 69-2314

• Governs the landlord’s obligations for property still on the premises after a tenancy has terminated or expired.

• Landlords have an obligation to give written notice prior to disposing of personal property remaining on the premises.

• Written notices should provide seven days if hand delivered, or fourteen days if mailed to lastknown address.

• If personal property is believed to be worth less than two thousand dollars, it may be kept,sold, or destroyed by the landlord.

• The landlord may require the tenant pay reasonable costs of storage before releasing the property to the tenant.

Mobile Home Landlord and Tenant Act

Neb. Rev. Stat. §§ 76-1450 to 76-14,111

• Governs the rental of mobile home lots.

• There are some differences with residential LLT Act that one should know before talking to a tenant or landlord of a mobile home park.

• Mobile Home LLT Act applies to owners of mobile homes on rented lots. Ifyou rent the mobile home, the residential LLT ACT should apply.

• Forcible Entry and Detainer Statute is used for restitution actions in mobile home LLT cases.

• Notice provisions different. Tenant has five days to pay upon written notice to quit for nonpayment.

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Advice for Tenants

• Before signing a lease, inspect the unit to make sureit is in good condition.

• Sign a move-in checklist

• If the landlord later tries to charge the tenant for damages to the unit, the checklist is good evidence that the damages were there when tenant moved in.

• If the landlord refuses to sign the checklist, the tenant should sign it, date it, mail it to the landlord, and keep a copy.

Advice for Tenants

• Tenants should try to get repairs made before they move in.

• Tenants should not give the landlord any money until she/he agrees in writing to make the repairs by a certain date.

• If a tenant wants to move in before the problems are fixed the tenantshould:

• Get an agreement in writing, signed by the landlord

• Include the specific repairs to be made and when they will be done

• The tenant should keep a copy of this agreement

Advice for Tenants

• Tenants should always get a receipt when they pay their rent.

• Tenants should retain a copy of their lease.

• Requests for repairs should always be made in writing.

• Requests for repairs need to detail what repairs are needed, besigned and dated. The tenant should retain a copy.

• Tenants should not withhold rent without consulting with an attorney.

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Resources For Tenantswww.legalaidofnebraska.org

Resources For TenantsLawHelp Nebraska

https://lawhelpne.legalaidofnebraska.org/



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FEMA Benefits

Shirley Peng

JUST THE BASICS!



Legal Aid of Nebraska

9/16/2019

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FEMA APPEALS

JUST THE BASICS!SHIRLEY PENG

How I spend my time…

• 2015 – 2018: Disaster Relief Project• Exclusive coordinator of legal services for survivors.

• Coordination between numerous legal and non-legal agencies.

• 2019 - Current:

https://www.nytimes.com/video/us/100000006415793/floods‐nebraska‐scenes.html

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Why Do Survivors Need An Attorney?

www.foxnews.com/opinion/harvey‐and‐irma‐survivors‐need‐food‐water‐shelter‐and‐a‐lawyer

• Disasters create and worsen legal issues:• Landlord/tenant, public benefits, consumer fraud,

insurance and property• Disasters impact marginalized and vulnerable

communities more than the general public: Elderly, disabled, non-citizens, LEP

Why Do Survivors Need An Attorney?

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Legal Authority

• Robert T. Stafford Act: 42 U.S.C. Section 5174

• Regulations: 44 C.F.R. Sections 206.110-206.120

• FEMA’s Policy Statements:

• IHPUG (Individuals and Households Program Unified Guidance) 10/16 – 2/19

• IAPPG (Individual Assistance Program and Policy Guide) 3/19 – Current

• Disaster Operations Legal Reference 3.0

Disaster Legal Services Process

3 ways to apply:

• Online at disaster.legalaidofnebraska.org / legalaidofnebraska.org

• Disaster Hotline Number

• In-person at a Multi-Agency Resource Center

Online

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Hotline

In-Person

After Intake

• If caller qualifies:

• Legal Aid Provides Advice

• Keep in-house or

• Place with Pro Bono Panel

• If caller does not qualify:

• Refer to NSBA VLP for placement

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When are Attorneys Needed?

• Immediate (0-30 days) – “Shelter”Provide information Assist with FEMA applications

• Short Term (1-3 months) – “MARC”Most legal claims begin to arise

• Long Term (+3 months) – “Clinical”FEMA appealsTitle ClearingOther complex legal claims

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https://www.fema.gov/disaster/4420

• Individual Assistance Applications Approved:

• 3,256

• Total Individual & Households Program Dollars Approved:

• $25,862,310.28

• Total Public Assistance Grants Dollars Obligated:

• $1,875,545.28

• Average Dollars Per Household

• $7942.97

As of 9/3/19

Individual Assistance Programs

• Mass Care & Emergency Assistance

• Crisis Counseling and Training

• Disaster Unemployment Assistance

• Disaster Case Management

• Individuals and Household Programs

• Housing Assistance (HA)

• Other Needs Assistance (ONA)

• Small Business Administration Disaster Loans

FEMA Eligibility

• Citizenship

• At least 1 member of the household must be U.S. Citizen or non-citizen national

• Proximity

• Primary residence located in the defined area (county) and affected by the disaster

• Proximate Cause

• Loss is directly caused by the disaster

• Remedy

• Loss cannot be rectified by other means, and it is a loss that FEMA can rectify

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Applying for Assistance

• Register within 60 days from the declaration (absent extensions)

• Online: disasterassistance.gov

• Phone: 1-800-621-FEMA (3362)

• In-person: Disaster Recovery Center

• Important to file on time, but late applications may be accepted on case-by-case basis up to 120 days after declaration

Once you Apply for Assistance

• Submit necessary paperwork requested by FEMA

• Complete Home Inspection

• Applicant should try to be present or designate someone in writing with FEMA prior to inspection

Inspections / Inspectors• Inspectors do not decide eligibility, but they are FEMA’s fact finders

• Not FEMA employees

• Only requirement is criminal background check

• Receive 8 hours of training

• Can’t use a ladder to view the roof / do not go underneath the house

• Have been given bonuses to hit quotas in the past

• Most initial decisions are automated. Computer formulas utilize the information from inspectors to decide eligibility

• Work with inspectors and advocate directly with those individuals which may eliminate the need to appeal

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Decision Time

• Approval

• FEMA will automatically transfer funds to your bank account

• Written benefits explanation letter mailed to applicant (not POA)

• Applicant can still appeal

• Denial

• Written letter stating basis for denial

• Deadline to appeal is 60 days from the notice of denial

No News Is Not Good News

• Could be waiting for inspection

• More likely:

• Applicant did not get notification or cannot access electronic notices

• Mailing address incorrect

• Other application information needs to be corrected (Best to do in writing)

Common Denial Reasons• Home is safe to occupy

• Insufficient damage

• Damages to home not cause by disaster

• Voluntarily withdrawn / lack of cooperation

• Ineligible

• Renters applying for repair – only eligible for personal property or rental assistance

• Landlords applying for repair – FEMA assistance only available for primary residences

• Proof of Ownership

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Personal Property

• Denied relief due to lack of need or amount awarded too low

• Applicant must prepare list of what essential items weredamaged or lost

• Appeal Exhibit

• Was and is property available for inspector to verify losses

• Get estimate, especially for essential appliances

Transportation Assistance

• Not essential vehicle

• Not legal to drive on date of disaster (liability insurance,registered, etc)

• Repairs are cosmetic rather than safety hazard or necessary to make car functional

• If car is totaled because of disaster – up to $7K award forreplacement

Appeal • Exercise your right to an appeal

• Don’t give up

• The system is complicated, bureaucratic, and sometimes inefficient

• Do your homework before the appeal

• Send a complete appeal the first time

• Verify you have FEMA authorization/release on file

• Obtain the administrative file from FEMA

• Call FEMA (denial letters may be generic, so be sure to investigate)

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Appeal• Every appeal must be in writing and include:

• Individual’s full name

• FEMA registration number

• Disaster Number (FEMA DR 4420)

• Pre-disaster address and current address

• Phone number

• Last 4 digits of SSN

• Contents• Clear and complete basis for the appeal

• Supporting documentation

• Signature under penalty of perjury / driver’s license

After the Appeal• FEMA will review the appeal and either:

• Reverse its denial

• Sustain its denial

• Ask for more information

• If asking for more info, FEMA may:

• Send letter asking for more info within 30 days

• Contact a third party to verify information

• Schedule a second inspection

• FEMA must respond in writing within 90 days

Advocating for Disaster Survivors• Beware of deadlines – 60 days

• Get contemporaneous documentation

• Written: home inspections: document who you spoke to, their contact information, how long the inspection took, questions they asked, statements made, etc.

• Photographic: Especially helpful for damaged / destroyed items that are thrown out

• Understand FEMA’s role in disasters

• Lends support to the local government

• Helps with recovery, not making you whole

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Advocating for Disaster Survivors

• It is a bureaucratic system

• Don’t give up, empower survivors to keep going

• A legal pep talk can help survivors who may be overwhelmed or too depressed to help themselves

• Getting nowhere? Hang up and call back

When Calling FEMA• FEMA Helpline: 1-800-621-3362

• Some automated information available

• Need Authorization form and last 4 SSN

• You do not speak to a decision maker

• You speak to whatever employee answers

• The helpline staff review notes from file in order to address your questions

Misuse of Grant Funds

• Money may ONLY be used for intended purpose

• Keep receipts and bills to document use for 3 years

• FEMA can audit, seek to recoup if it is misused

• Tax free, exempt from garnishment

• Benefits do not count against other types of federally-funded (mean-tested) aid

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Case Studies

Case Studies

Links and resources

• Disaster.legalaidofnebraska.org

• Disasterlegalaid.org

• Disasterassistance.gov

• Bit.ly/FEMAappeals

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Questions?

Shirley Peng402‐435‐2161 ext. 302

[email protected]

Disaster.LegalAidOfNebraska.orgWe make equal justice happen.

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The Ethics of Assisting Self Represented Litigants

Laurel Heer Dale

JUST THE BASICS!



Nebraska State Bar Associa on Volunteer Lawyers Project

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Just the Basics!: Providing Limited Legal Services in Walk‐In & Virtual Legal Clinics

Why Pro

Bono?

Lawyers must be “mindful of deficiencies in the administration of justice and the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.”

Nebraska Rules of Professional Conduct Preamble

JusttheFacts

86% of civil legal problems faced by low‐income Americans in a given year receive inadequate or no legal help.

Of the estimated 1.7 million civil legal problems for which low‐income Americans seek LSC‐funded legal aid, 1.0 to 1.2 million (62% to 72%) receive inadequate or no legal assistance.

85% to 97% of persons who seek legal aid will not get legal needs fully met due to limited staff and resources.

In Nebraska, less than 20% of individuals get legal needs fully met.

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Overview

Nebraska Rules of Professional Conduct Related to Pro Bono Services

3‐506.1 Voluntary pro bono services

3‐506.5 Nonprofit and court annexed limited legal service programs

3‐501.7 Conflict of interest

3‐501.9 Duties to former clients

3‐501.10 Imputation of conflicts of interest

Rule 3‐506.1Voluntary Pro Bono Service

A lawyer should aspire to render pro bono legal services.

In fulfilling this responsibility, the lawyer should:

Provide a substantial majority of the legal services without fee or expectation of fee to persons of limited means.

Provide a substantial majority of the legal services without fee or expectation of fee to charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means.

and…

A lawyer should provide any additional services:

at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights; or

at no fee or substantially reduced fee to charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes…

where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate;

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or…

delivery of legal services at a substantially reduced fee to persons of limited means; or

participation in activities for improving the law, the legal system or the legal profession.

In addition,

a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

Who is responsible?

Every lawyer, regardless of…

professional prominence

professional work load

BUT… pro bono is not mandatory in Nebraska

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Types of Pro Bono

Participating in judicare programs and court appointments where the fee is substantially below a lawyer's usual rate. Rule 3‐506.2

Lawyers should be encouraged to support and participate in legal service organizations. Rule 3‐506.3

Law reform activities. Rule 3‐506.4

Non‐profit and court‐annexed limited legal services programs. Rule 3‐506.5

Rule 3‐506.5

Non‐Profit and Court‐

Annexed Limited Legal

Services Programs

Advice, completion of legal forms, legal advice hotlines, advice‐only clinics, pro se counseling programs

Generally not feasible to check for conflicts of interest

A client‐lawyer relationship is established No expectation of further representation

If short‐term limited representation is not reasonable under the circumstances, lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel

Rules 501.7, 501.9(a) & 501.10

Conflicts of Interest

Rule 501.7 (current clients) and 501.9(a)(former clients): apply only if the lawyer knows the representation involves a conflict of interest

Rule 501.10 (Imputed conflicts): Apply only if the lawyer knows another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or Rule 1.9(a)

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Ethics Rules for Pro Bono Volunteers

Follow the Rules

If, after commencing a short‐term limited representation in accordance with this Rule [3‐601.5], a lawyer undertakes to represent the client in the matter on an ongoing basis:

Rules 1.7, 1.9(a) and 1.10 become applicable.

Help Desks Walk‐in, first come first served

Serve more than 2,500 pro se litigants annually

Educate pro se litigants about the court process

Answer basic questions about the law and court

process; provide available court forms

Referral to legal service providers More than 50% of visitors need

full representation

Walk‐in Clinics

Lawyers in the City

Set‐aside & Record Sealing

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Pro Bono Online

Free Legal Answers

www.NE.freelegalanswers.org

ABA Free Legal Answers

42 states participating

Users Lawyers

Relaxed conflicts rules

What’s In It

For Me?

Recognition in NSBA publications

Recognition at NSBA events

Pro Bono awards for meritorious service

Free CLE for specified pro bono hours

One of the most rewarding experiences in the life of a lawyer

Training & Resources

SUBSTANTIVE INFORMATION:

NSBA VLP Website: nevlp.org

NFLA Website: ne.freelegalanswers.org

Legal Aid of NE Website: legalaidofnebraska.org

PRO BONO INFORMATION:

Annual Meeting Wednesday, October 9

Getting Started with Pro Bono Representation: The How‐To Guide You’ve Been Waiting For

Friday, October 11 Pro Bono Summit

Self‐Represented Litigants, Limited Scope Representation, Unique Pro Bono Opportunities, Pro Bono Recognition

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Thank You!

Laurie Heer DaleNebraska State Bar AssociationVolunteer Lawyers Project635 S 14th Street, Ste. 200Lincoln, NE 68508T: (402) 742‐[email protected]

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