Liability of Parents for Property Damage of Child

 There are a number of situations in which you may be held liable for your child’s property damage.   According to Mississippi Code section 93-13-2, parents are held liable when their children maliciously or willfully” damage another person’s property.   Under Mississippi law, parents could be held liable for up to $5,000 of property damages. Note that this does not include bodily injury or pain and suffering.

Bankruptcy and Attorney's Fees

 

Chapter 7 debtor's prepetition personal injury counsel was entitled to share of settlement later obtained by Chapter 7 trustee:

 Under N.Y. Jud. Law § 475, a law firm that had represented the debtor for nine years in a personal injury lawsuit prior to the debtor's Chapter 7 bankruptcy filing was entitled to a charging lien on the settlement proceeds for the "reasonable value" of the services that the law firm provided where the Chapter 7 trustee subsequently settled the litigation. The court concluded that the law firm was entitled to fees of $22,888.22 and expenses of $3,447.13, for a total of $26,335.35.

 In re Rivera, 2020 WL 5047422 (Bankr. S.D. N.Y., August 26, 2020)

Covid and Evictions

 Generally with Covid going on, evictions are largely halted.  However under the Applicability” section of the CDC order:  

 “Nothing in this Order precludes evictions based on a tenant, lessee, or resident: (1) Engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; [10] (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).”

 

Certified Mail and Service of Process

 In April 2020, the United States Postal Service (USPS) modified its signature requirements for certified mail receipts. To reduce health risks, they are temporarily modifying customer signature capture procedures. While maintaining a safe, appropriate distance, employees will request the customers first initial and last name so that the employee can enter the information on the electronic screen or hard copy items such as return receipts, PS Forms 3811 and 3829. https://faq.usps.com/s/article/USPS-Coronavirus-Updates-for-Residential-Customers#mailing_shipping USPS prepared a video outlining the process: https://www.youtube.com/watch?v=2rn0LXFFMao&feature=youtu.be

Please note that the USPS signature requirement modification may impact the sufficiency of service of process to the extent a party relies on Federal Rule of Civil Procedure 4(e)(1) and applicable state law requirements to affect service.

Evictions and Covid

 On September 1 the CDC issued an Agency Order entitled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19,” suspending certain residential evictions through December 31, 2020. The order does not suspend mortgage foreclosures. To take advantage of the suspension, the tenant must sign a declaration form averring the following:

1. The individual has used best efforts to obtain all available government assistance for rent or housing;
2. The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
3. The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
4. The individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and
5. Eviction would likely render the individual homeless— or force the individual to move into and live in close quarters in a new congregate or shared living setting— because the individual has no other available housing options.

Electronic Signatures

 Recent case of interest.   An email is probably not a sufficient electronic signature.  

Parish Transp. LLC v. Jordan Carriers Inc.- Contracts – Enforceability – Electronic Signature – Statute of Frauds – Appellant appealed after the trial court granted summary judgment and found that email communication did not constitute a contract pursuant to Mississippi law and the statute of frauds. Because sending an email does not satisfy the requirements for an electronic signature under Miss. Code Ann. § 75-12-3(8), and because appellee’s email was ambiguous, an enforceable contract did not exist between the parties. Therefore, the trial court’s judgment was affirmed.

Reduction of Financial Obligation

With unemployment skyrocketing and wages being cut, examination of the factors for reducing divorce obligations is particularly relevant. In KROHN v. KROHN, NO. 2018-CA-01066-COA (Decided April 21, 2020) located here (https://courts.ms.gov/Images/Opinions/CO144202.pdf) the Court reversed a Chancellor for not reducing a man’s alimony obligation of $2,000 a month where he lost a job paying $218,000 per year and was able, after a few months, to get a new job paying only $84,000 per year.

The court quoted the following standards for review:

“When considering a party’s petition to modify or terminate an award of periodic alimony, a chancellor must first determine whether an unforeseeable and material change in circumstances occurred since entry of the initial divorce decree.” Easterling v. Easterling, 245 So. 3d 548, 551 (¶9) (Miss. Ct. App. 2018) (internal quotation mark omitted). “The change in circumstance must not be anticipated by the parties at the time of the original decree.” Id. (quoting Holcombe v. Holcombe, 813 So. 2d 700, 703 (¶11) (Miss. 2002)). “If no unforeseeable and material change has occurred, then a modification of the alimony award is improper.” Id. “Once a substantial unanticipated change has in fact occurred, the chancellor should then consider the Armstrong factors to determine the appropriate amount of alimony.” Id. at (¶10) (internal quotation mark omitted). “When analyzing these factors and ‘deciding whether to modify periodic alimony,’ chancellors should ‘compare the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.’” Id. (quoting Steiner v. Steiner, 788 So. 2d 771, 776 (¶16) (Miss. 2001)). “Personal bills cannot be used as a factor to reduce support payments.” Hardin v. Grantham, 201 So. 3d 511, 515 (¶15) (Miss. Ct. App. 2016) (quoting Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995)).

The Armstrong factors that courts use to determine whether a spouse is entitled to alimony include: (1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; and (12) any other factor deemed by the court to be just and equitable in connection with the spousal support. Culumber v. Culumber, 261 So. 3d 1142, 1151 (¶29) (Miss. Ct. App. 2018) (quoting Larson v. Larson, 192 So. 3d 1137, 1142 (¶12) (Miss. Ct. App. 2016) (citing Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993))).