Senators Announce New Proposed Comprehensive Immigration Reform Law

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On April 16, 2013, eight U.S. Senators, known as the “Gang of Eight”, introduced a proposed new immigration law that could transform U.S. immigration law as we know it, and provide opportunities for many immigrants.

The proposed law provides that immigrants who entered the United States without permission or who remained after their permission to stay expired will have to register with the government, submit to a background check, and pay a fine and back taxes to be eligible to remain in the U.S. Such undocumented immigrants will be able to obtain a probationary legal status, which will include the ability to live and work legally in the United States.

Undocumented immigrants who have significant criminal records or who are deemed to pose a threat to national security will be ineligible to qualify for the probationary status.

Immigrants who receive probationary status will eventually be allowed to apply for lawful permanent residency (Green Card) after they pass an additional background check, pay taxes, learn English and civics, demonstrate a history of work in the United States, and current employment, although it would take several years to do so.

The proposed law also addresses severely needed reforms to employment-based immigration law, including a much-needed increase on the cap of H-1B visas for highly-skilled workers, the creation of an entry-level workers visa, and exemptions to current quotas for holders of advanced degrees in areas such as science, technology, engineering, and math.

The proposed bill also provides that it is contingent upon increased border security, meaning that certain triggers could be put in place related to securing the border before some other aspects of the proposed law kick in.

There will be much debate during the next several months over the contents of the proposed law, including whether or not it grants “amnesty” to undocumented immigrants. Amnesty has become a political hot-button that is reviled by immigration opponents, although very few really understand what an “amnesty” is. Regardless of one’s view toward immigration reform, or “amnesty” as some call it, what is undeniably certain is that this country’s current immigration system has serious problems, and we are long overdue to fix it. While this proposed new law is not likely the final version we will see, let’s hope it is a major step in the right direction to tackle the immigration issues that so desperately need to be addressed.

Keep in touch with Colorado Springs immigration attorney Josh Deere for the latest news about immigration reform.

Josh Deere
Hanes & Bartels, LLC
102 S. Tejon St., Suite 800
Colorado Springs, CO 80903
(719) 260-7900

What is Deferred Action, and is it the DREAM many were hoping for?

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What is Deferred Action, and is it the DREAM many were hoping for?

On June 15, 2012, the U.S. government announced a new program to provide some relief for immigrants who came to the United States as children, and who are currently without documentation. Although many are calling it the “DREAM law,” it is not actually the DREAM Act that Congress has been fighting over for years, nor is it really even a law at all. Rather, the new program is an executive order from the Obama Administration, and its official name is Deferred Action for Childhood Arrivals (D.A.C.A.).

Immigrants who qualify for D.A.C.A. will not necessarily receive any kind of status, such as permanent residency or citizenship, but should find at least some relief knowing that they will not be deported during a two-year period, which can be renewed at the end of those two years. Those individuals who qualify may also be eligible to apply for a work permit, as well as a driver’s license in certain states.

To qualify, individuals must:

1. be under the age of 31 as of June 15, 2012
2. be 15 years old or older at the time of filing the request (this requirement has some exceptions if the individual is in deportation proceedings)
3. have come to the U.S. before reaching 16 years old
4. have continuous physical presence in the U.S. for five years preceding June 15, 2012
5. have either graduated from high school, obtained a GED, or are in school currently, or be a U.S. military veteran with an honorable discharge
6. not have any felony convictions, significant misdemeanor convictions, or have three or more total misdemeanor convictions

The USCIS (United States Citizens and Immigration Services) will begin taking D.A.C.A. cases on August 15, 2012. The filing forms will not be available until that day. After submission of the forms and supporting evidence, individuals will undergo fingerprinting and a background check. This should not concern immigrants, however, as ICE has stated that it has no intention of using information from the applicant’s forms, fingerprints, or background check to initiate deportation against any immigrants involved in the process.

Our firm has already been receiving many calls from individuals seeking to file under D.A.C.A. We are here to help you determine if you qualify for D.A.C.A., and to assist you with the complex immigration procedure. Please call us today at (719) 260-7900, or (719) 433-7571 for Spanish speakers.

Josh Deere
Hanes & Bartels LLC
102 S. Tejon St., Suite 800
Colorado Springs, CO 80903
(719) 260-7900
Español: (719) 433-7571
http://www.colorado-immigration-law.com

THE SIGNIFICANCE OF PUBLICATION IN THE COPYRIGHT LAW

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by Richard Hanes

In American Visuals Corp. v. Holland (2d Cir. 1956) Judge Frank observed that “[i]t is, however, perfectly clear that the word ‘publication’ does not have the same legal meaning in all contexts. Its copyright definition, for example, differs from its meaning where applied in respect of torts…or in respect of privacy.” He warned that “the term ‘publication’ is clouded by semantic confusion where the term is defined for different purposes, and that we have here an illustration of the one-word-one-meaning-only fallacy.”

The notion of publication was of great significance prior to January 1, 1978, the effective date of the 1976 Copyright Revision Act and during the “decennial” period from January 1, 1978 until March 1, 1989, the effective date of the Berne Convention Implementation Act. Prior to January 1, 1978 a common law copyright existed in the original works of an author or artist and continued indefinitely until publication of the work. The act of publication then triggered the acquisition of a statutory copyright, provided that an appropriate copyright notice was applied to the published work. Failure to include the necessary copyright notice on the published work invalidated the copyright.

The 1976 act abolished the concept of common law copyright and as of March 1, 1989 the copyright notice is no longer necessary to acquire or maintain copyright protection. However, the concept of publication is still very significant to the proper application of the copyright law. Not only will legal consequences under the 1976 Act vary depending upon whether a publication of the work occurred before or after January 1, 1978, the definition of publication may differ depending upon whether the activities said to constitute publication occurred before or after January 1, 1978.

Under the 1976 Act, “publication” is defined as the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

An intuitive interpretation of “publication” often leads to the wrong conclusion in the copyright context. For example, no publication results from the delivery of a lecture or sermon, the public performance of a musical composition or a dramatic work, the radio or television broadcasting of a script, or the projection of a motion picture film. Placing a work in a public file does not constitute an act of publication, such as placing a set of architectural plans on file with a public authority. On the other hand, the posting of photographs or music on the internet, similar to the web pages themselves, are considered to be publications.

The foregoing are examples only and further study and analysis must be made before concluding that a publication of a particular work has occurred and what the date of publication is. In filling out an application for copyright registration of a published work, the date of first publication of the work is a question that must be answered. The copyright notice should contain the year date of first publication. Are you sure you have the correct answer? An incorrect answer may invalidate the copyright registration and protection of your masterpiece .

In addition to the application for copyright registration, awareness and appreciation of the date of actual publication of a work is essential for many other aspects of copyright protection. While under the current Act (Act of 1976), publication is not a defining event, as it was prior to January 1, 1978, the concept of publication still has significance in copyright law and understanding what is and what is not an event of publication has important consequences to the copyright owner as well as to one wanting to copy someone else’s work. Whether or not a publication has occurred after the effective date of the current Act can be significant in each of the following and other copyright contexts:

(1) a copyright notice had to appear on copies and phonorecords of decennial works that were first published before March 1, 1989;
(2) the copyright notice that had to appear on all such decennial copies and phonorecords had to include the year of first publication;
(3) the requirement to deposit two archival copies of the best edition within three months after the date of first publication applies only to published works;
(4) copyright for anonymous and pseudonymous works, and works made for hire endures for a term of 95 years from the year of its first publication or 120 years from its creation, whichever expires first;
(5) even where the usual term of copyright is for the life of the author plus 70 years applies, the date of first publication is significant in that 95 years after the first publication of such a work, or 120 years from creation if that is sooner, it may be presumed that the author has been dead for at least 70 years unless the Copyright Office records relating to the death of authors indicates to the contrary;
(6) registration in the Copyright Office must occur within five years of the first publication in order for the registration certificate to constitute prima facie evidence of the validity of the copyright;
(7) statutory damages and attorney’s fees are available as to unpublished works only if registration preceded infringement, and as to published works only if registration either preceded infringement, or if registration occurred within three months after first publication;
(8) the scope of fair use is diminished for unpublished works.

Publication and the related concept of “distribution” are important terms in understanding and correctly applying the law of copyright from registration to any infringement analysis.

For more information, call (719) 260-7900, or visit http://www.hhbcolorado.com.

Prosecutorial Discretion: Is There A New Immigration Law?

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There has been a lot of talk recently of a “new law” affecting U.S. immigration policy. The talk is the result of a letter dated August 18, 2011, sent from Homeland Security Secretary Janet Napolitano to U.S. Senate Majority Leader Harry Reid declaring that changes are coming to the government’s approach to reviewing deportation cases. This “new law” has sparked a media frenzy and a political firestorm. But is the government’s new policy a “new law”, or just more political rhetoric? More importantly, how can it be used to the benefit of those seeking immigration relief?

What the “new law” is not

First, the “new law” is not really a new law at all. Rather, the policy referenced in the letter from Secretary Napolitano reinforces the contents of two prior memoranda from Immigration and Customs Enforcement (ICE) Director John Morton. In those memoranda, from March 2010 and June 2011, Director Morton discussed the need for ICE personnel to exercise prosecutorial discretion when reviewing and prosecuting removal cases.

Morton’s memos encouraged ICE to focus its energy and resources on prosecuting high-priority cases, such as those involving convicted criminals and individuals who pose a threat to public safety. The Morton memos also discouraged ICE from expending resources on low-priority cases, such as individuals who have lived in the United States since their youth, and who have a clean criminal record.

Morton’s June 2011 memo provided 19 factors which should be considered by ICE personnel when deciding whether to prosecute a removal case. Those factors include the individual’s length of presence in the United States, the circumstances surrounding entry into the U.S., education, criminal history, military service, whether the person has a U.S. citizen or permanent resident spouse, or whether the person is the caretaker for another who is a minor, disabled, or ill.

The policy addressed in the Morton memos and the Napolitano letter also does not create new immigration categories or new grounds for admission. The policy only applies to immigrants who are facing removal proceedings.

What the “new law” is

In other words, rather than announcing a “new law”, the Morton memos and the Napolitano letter only emphasize the government’s priorities in dealing with existing removal cases, and those that will be filed in the future. However, if implemented effectively, the policy discussed in Secretary Napolitano’s letter could provide much-needed hope to those battling the deportation process.

While the Napolitano letter did not declare new law, it announced the government’s plans to implement the policies stated in the Morton memos. Specifically, the letter stated that the Department of Homeland Security (DHS) and the Department of Justice (DOJ) are jointly forming a group to conduct a case-by-case review of all pending removal cases to ensure that ICE is focusing its efforts on prosecuting only the highest priority cases, and will conduct a similar review of all new cases.

Once ICE has reviewed a case and designates it as low priority, the case will not necessarily be dismissed. Rather, the case will be “set aside”, and the individual will be eligible to apply for a work permit. It is unclear at this point, however, what long-term immigration benefits will be available to those individuals.

With approximately 300,000 removal cases pending nationwide, it remains to be seen how, when, and to what extent the new policies will be implemented. While the new policies do not yet appear to have had any significant impact on the procedures in Denver’s immigration courts, the rumor is that courts in other states have drastically changed their approach to removal cases. The scheme is certainly a work in progress, but may be a sign of hope in the struggle for immigration reform.

by Josh Deere
Immigration Attorney
Hanes Hrbacek & Bartels LLC
http://www.hhbcolorado.com
http://www.colorado-immigration-law.com

The Trademark Aspects of Branding Your Business—Part I

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Trademarks have a long history. At least 3500 years ago potter’s signatures on fired clay pots identified their source and the quality of the craftsmanship. In the middle ages, artisans used their particular marks on armor, cloth, cutlery and pewterware.

The dawn of trademark litigation appears to be a 1584 British case where the plaintiff made a woolen cloth called “kersey” which was used for hose and work clothes. He used the mark “J.G.” with a design of a “tucker’s handle,” possibly a tool of the trade, on the cloth which he sold in England, Wales and beyond the seas. He built a profitable business and an enviable reputation among merchants, who could tell from the “J.G.” trademark, without even inspecting them that the goods were of high quality.

Defendant, aware of plaintiff’s success, began marking his cloth with the same trademark and sold it to the same merchants who were familiar with plaintiff’s goods and his trademark. As a result, buyers of defendant’s cloth found it of poor quality, and thereupon reversed the opinion and esteem which they previously had of plaintiff’s cloth. Because of defendant’s deceit, merchants refused to buy plaintiff’s cloth whereupon he filed suit and claimed to be damaged. Although the court recognized plaintiff’s damage, it held that there was no law against anyone using any mark he wished. There was damnum absque injuria (damage without injury in the legal sense).

For the next 200 years trademark infringement cases fared no better. It wasn’t until 1777 in Cabrier v. Anderson where the plaintiff won £100 against a defendant who had used the plaintiff’s name on five watches he had made. In 1824 in Sykes v. Sykes the court regarded trademark protection as an established principle where the defendant had used the plaintiff’s mark on a variety of inferior shot-belts and powder flasks and sold them as the products of plaintiff.

In 1838 the landmark case of Millington v. Fox was decided by the Lord Chancellor who found that the evidence of plaintiff’s title to his trademark for steel was sufficient and held that the plaintiff undoubtedly had a right to the assistance of a Court of Equity to enforce his title. The court also held that an injunction restraining the defendant’s further unlawful use was appropriate, even though there was no proof the defendant intended to defraud. The Millington case was later cited by the United States Supreme Court for these principles which are still followed today.

The U.S. Congress enacted the first federal trademark statute in 1870 but it was held unconstitutional by the Supreme Court because it was not limited to acts which the Congress had the power to regulate. A replacement act was passed in 1881 followed by the Act of 1905 and a supplemental Act in 1920. In 1946 the Lanham Act was passed which today is the basic federal trademark statute.

The Lanham Act and its protégé have clarified archaic terms with statutory definitions bearing the imprimatur of federal law. For example, the term “trademark” includes any word, name, symbol, or device or any combination thereof used by a person to identify and distinguish his goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown. This definition is expansive and includes a vast area of subject matter.

Valid trademarks include, among names and symbols, slogans, phrases, fragrances, colors (pink insulation), sound combinations, packages (Coca-Cola bottle), product shape (LifeSaver candy) and other devices that can serve to identify the source or origin of the goods the trademark represents. “Service marks” are another feature of the Lanham Act. They are similar to trademarks except they serve to identify and distinguish the “services” of one person from the services of others and to indicate the source of the services even if that source is unknown. Although trademarks can take many forms, the provisions of the Lanham also disqualify many types of names, symbols or devices as enforceable or registerable on the Principal Register of the U.S. Trademark Office, including, among other things, marks that are generic or are descriptive of the goods or services that the mark identifies.

Selection of a trademark or service mark is perhaps the most important aspect of branding your business and obtaining legal advice on the potential registerability and potential infringement possibilities of the proposed mark is essential before using the mark.

by Richard W. Hanes, Attorney
Hanes, Hrbacek & Bartels, LLC

Is My Business a Franchise, and Why Does it Matter?

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The Federal Trade Commission (“FTC”) has instituted very stringent rules that govern the creation and operation of a franchise, and harsh penalties for failure to comply. Therefore, it is critical that business owners offering licensing or business opportunities to others be crystal clear on whether their model is a franchise and, if so, that they have complied with all applicable federal and state laws.

A franchise is a business model through which the owner of a business (“franchisor”) grants the rights to other individuals or groups (“franchisee”) to use the franchisor’s products, services, trademarks, business model, etc., to open and run the same or similar type of business. The franchisor generally licenses the use of such assets to a franchisee in exchange for some form of payment, such as an up-front franchise fee, a share of ongoing royalties, or both. The franchisor also generally imposes quality control requirements on the franchisee to assure that the trademarks and good will of the company do not suffer.

For example, have you ever been to a McDonald’s in another country? If so, you have probably noticed that the Big Macs and fries taste the same as they do here in the U.S. As amazing as that may seem, you are not necessarily witnessing a miracle under the glow of the Golden Arches. Rather, you are experiencing the quality controls imposed by the main McDonald’s corporation on its franchisees. As a result, when you order “two all-beef patties, special sauce, lettuce cheese…” in Rhode Island, or “Két minden marha patties, különleges mártás fejes saláta sajt” in Budapest, you know what to expect.

But what about your local, Colorado business? Surely you do not qualify as a franchise just because you allowed someone to slap your logo on their store front, right? Maybe not. But considering the potentially devastating consequences for failing to comply with franchise laws, you had better find out.

Among the FTC’s compliance rules is the requirement of providing the initial Franchise Disclosure Document (“FDD”), previously known as the Uniform Franchise Offering Circular (“UFOC”), to all potential franchisees. The FDD is a lengthy document that contains information for potential franchisees regarding various aspects of the franchise opportunity, including the franchisor’s executives, details related to the financial status of the company, obligations of the franchisor and franchisee, and much more. In fact, the FTC requires 23 specific items to be included in the body of the FDD, as well as several other documents that must be included as attachments. The purpose of the FDD is to provide interested parties with sufficient information to allow them to make an educated decision. The FDD must be presented to potential franchisees at least 14 days before the execution of the franchise agreement.

Failure to comply strictly with the FTC’s requirements and regulations for franchises will put the franchisor in substantial jeopardy of significant penalties. Those penalties can include, among other things, fines in the range of hundreds of thousands of dollars, being temporarily or permanently banned from growing or operating the franchise, freezing the franchisor’s assets, and in the worst scenarios, even criminal conviction and prison time. In addition, in some cases, the individuals who are the principals of the franchise organization can be held personally liable for monetary penalties and/or awards granted in lawsuits.

Some would-be franchisors try to get around the FTC’s strict regulations by choosing not to call their business model a franchise, or trying to operate under some other format, such as providing a “business opportunity.” Just because the business owner does not call it a franchise, however, will not save it from being tagged as a franchise. Under current franchise law, the relationship between a business opportunity provider and interested parties is a franchise if the following three factors exist:

1) the license of a trademark from the franchisor to franchisees,
2) significant control by the franchisor over the franchisee, or significant assistance to the franchisee,
3) payment of some form from the franchisee to the franchisor.

In other words, the law’s approach is, “if it walks and talks like a duck, it’s a duck,” regardless of how creative the parties involved are at trying to disguise the relationship as some other business model. In fact, to officially dispel any confusion that may have existed over whether business opportunity providers are subject to franchise laws, the FTC has extended the disclosure and compliance requirements to “business opportunities” as well.

In addition to the federal regulations imposed upon franchisors and those offering business opportunities, several states have their own franchise and business opportunity laws that must be obeyed. Colorado is not one of those states. As such, a franchisor operating within Colorado, and offering franchise opportunities only within Colorado, must only comply with the federal regulations. However, if that franchisor ever decides to offer franchise opportunities in a different state, or even to “test the waters” outside of Colorado, it is critical that the franchisor first determine whether that state has additional franchise regulations and, if so, that the franchisor become very familiar with those requirements.

The purpose of this article is not to scare prospective franchisors away from operating a franchise. After all, there is a reason why some of the world’s most successful businesses are franchise operations. The disclosure and other compliance requirements may seem daunting, but are by no means unachievable. With the assistance of experience and knowledgeable legal counsel, the franchisor should be able to achieve compliance with reasonable effort.

by Josh Deere, Attorney at Hanes, Hrbacek & Bartels, LLC

A Landlord’s Guide to Dealing With a Hostile Tenant

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A very wise Zen quote states, “Those who know don’t
tell, and those who tell don’t know.”

If you are fortunate enough to have never had a hostile tenant, then you either:

a) know something great that you should tell, or
b) you have not been a landlord very long.

If the former is true, then feel free to stop reading here and continue in your Zen greatness. As for the rest of us, unfortunately, there is no “Staples Easy Button” when it comes to dealing with difficult tenants. They come from all walks of life, and their moods, personalities, quirks, desires, and eccentricities vary as much as the variety of properties that are available for rent. It is nerve-racking enough to take the leap and purchase investment property. That anxiety is all the more maddening when it involves entrusting your real property to tenants you have never before met, especially when they turn out to be people you wish you had never met.

No landlord or landlord attorney, Zen or not, would ever wisely claim to have all the answers. However, drawing collectively on experience gained from numerous landlord-tenant legal battles, the following are some hints that may help in trying to make sense of difficult rental relationships:

1.  Always keep a professional demeanor. I cannot emphasize enough that this is RULE NUMBER ONE. Not only is this a good general rule in life, it can greatly impact any legal issues that may arise. I have seen one too many clients whose poor attitudes toward their tenants consistently cause what would normally be minor legal disputes to turn into protracted and expensive legal battles that are ruled more by emotion than logical decision making.

2.  Adopt a rule that states a resident agrees to act in a manner that will not disturb the peaceful and quiet enjoyment of neighbors, other residents, or unreasonably disturb your ability to manage the property or conduct business activities.

3.  Document in writing, with video, and photographs each act that constitutes a violation and/or unreasonable disruption of your ability to manage.

4.  Report any serious violations to the Police Department and aid in prosecution.

5.  Issue the resident a written notice for each breach of the Lease Agreement (or Termination Notice if the violation is serious enough) with a demand that he/she communicate to management only in writing as to any concerns regarding the property. Include in the notice that the only exception to such written communication would be that of an emergency situation.

6.  Be prepared to enforce the rules if the resident continues to act in a defensive manner. Do not be afraid to stand up for yourself, but always do so in a professional and non-aggressive manner. Never let any resident be abusive to you without consequence. If you allow abuse from any resident, you open the door to continued abuse from that resident, as well as any other resident who finds out.

7.  Use a recording device whenever you talk to such a resident (assuming that doing so is legal in your state). A recorder can help you be on the offensive and not feel like you are constantly on the defense when residents are rude, obnoxious, swearing, intimidating, threatening, embarrassing, demanding, or outrageous.

8.  Make sure that you treat all residents consistently as to avoid Fair Housing issues. This includes developing a protocol for addressing all potential and actual tenants, both during the application process and during the lease itself.

9.  Do not give “warning” notices. Keep your notices consistent with those outlined in the law, such as a 3-Day Notice to cure the violation. If utilized effectively, the notices provide almost all of the tools you need to provide the warnings you believe are necessary, while at the same preserving your rights as a landlord to exercise your legal remedies when the time comes.

One last bit of Zen wisdom: “Pain is inevitable. Suffering is optional.”
It is my hope that these bits of wisdom will help in dealing with the pain of a difficult tenant, with as little suffering as possible.

Because the facts and circumstances vary for each individual, we encourage you to contact us regarding the facts pertaining to your case to determine how the laws discussed in this article apply to you.

by Josh Deere, Attorney at Hanes Hrbacek & Bartels, LLC

What Does A Landlord Do When A Tenant Files Bankruptcy?

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As a landlord, what do you do when your tenant files bankruptcy? Should you:

a. immediately run to the courthouse and file for eviction?
b. lock the tenant out of the property?
c. send the tenant a letter demanding immediate payment?
d. knock on the tenant’s door and inform him or her that the bankruptcy is a violation of the lease agreement, which requires him or her to move out?
e. deliver a formal, written notice requesting that the tenant either pay all amounts owed or move out?

Although it is not listed as an answer, hopefully you are screaming to yourself “none of the above!”, as each of the actions listed could be a serious violation of federal bankruptcy law. If you are a landlord and are not sure why, please save yourself the potential heartache, and possibly significant monetary penalties, and read on.

Bankruptcy is a concept that has been around for centuries, but in the past few decades has, for the most part, increased in frequency and the extent of protections granted to debtors. Simply put, bankruptcy is supposed to give the debtor a “fresh start” by allowing him or her to wipe the slate clean of most debts, or at least to enter into a manageable payment plan. The law also provides the debtor certain additional protections from the collection actions of creditors to provide the debtor with some breathing room while the bankruptcy process moves forward. The most critical of those protections for a landlord to understand is the “automatic stay.”

At the moment a debtor files the petition for bankruptcy, federal bankruptcy law automatically imposes a stay that protects the debtor from almost all collection activities by creditors—including landlords. See 11 U.S.C. § 362. I like to tell clients to think of this law as a brick wall that goes up between the debtor and everyone who wants money from the debtor. That brick wall essentially prevents creditors from demanding money, asking for money, threatening to sue for money, threatening to repossess items in the debtor’s possession, or in the case of a landlord, threatening to evict the tenant if the tenant does not pay rent or other money owed.

So, does this mean that the landlord has to just sit back and watch as the tenant lives in the landlord’s house for free? Not if the landlord knows the right way to climb over the wall.

Because the automatic stay comes from federal bankruptcy law, you must go to the federal bankruptcy court to seek relief from the stay (climb over the wall). This is done by filing a motion for relief from the automatic stay in the federal bankruptcy. In that motion, the landlord asks the bankruptcy court for permission to proceed with evicting the tenant for non-payment, or some other violation of the lease. The bankruptcy court will not issue the actual eviction order. Rather, the bankruptcy court will grant relief from the stay so that the landlord can then move forward with eviction proceedings in state court.

Seeking relief from the automatic stay in bankruptcy court can be a complicated process, much more so than simply seeking an eviction in state court. As such, landlords should seriously consider consulting with an attorney experienced in representing creditors in bankruptcy court. Furthermore, the potential penalties for violating the automatic stay can be very steep—sometimes as high as $10,000 per violation—so it is not wise to take any actions that even come close to looking like collection activities. If you are not sure, consult an attorney.

The good news is, with a little time and patience, the landlord can succeed in obtaining relief from the stay and re-gaining possession of the rental property. While it can be extremely frustrating and somewhat expensive, it may be the only way to get the property back on the rental market.

NOTE: Do not make the mistake of believing that by simply filing a bankruptcy, a tenant is automatically in violation of the lease. As long as a tenant continues to pay rent and is in compliance with the other covenants contained in the lease, he or she is not in default, and should not be in danger of eviction. In other words, a bankruptcy is not automatically a lease violation.

Some landlords even go so far as to include a provision in the lease stating that if the tenant files bankruptcy, it is an automatic lease violation. Such provisions are generally in violation of public policy and, therefore, not enforceable in court. Plus, in today’s market, if you have a tenant who is current on rent and otherwise complying with the lease, why would you want to evict?

Because the facts and circumstances vary for each individual, we encourage you to contact us regarding the facts pertaining to your case to determine how the laws discussed in this article apply to you.

by Josh Deere, Attorney at Hanes Hrbacek & Bartels, LLC

What Legal Blog Topics Interest You?

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We would like your input …

We did not set up the Hanes Hrbacek & Bartels, LLC blog site just to ramble on about legal jargon. Our goal is to provide Internet users access to information on legal topics that are relevant and beneficial to real world situations. That is why we value feedback not only from our clients, but also those of you who are just visiting the site. Please let us know which legal topics interest you. We will do our best to post articles on those issues.

Also, you can always keep up to date on current posts by subscribing to our blog. It is free, and you will receive notice by email when new articles are posted.

Remember that by visiting our site, reading the blog posts, or submitting an idea for a blog topic, you are not engaging this firm as your attorneys. The information and topics discussed on this site are for general purposes only. If you would like to discuss your particular legal issues, please do not hesitate to call our office to set up an appointment. At that time we will discuss with you the potential for entering into an attorney-client relationship.

Can my HOA charge me legal fees?

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Every homeowners association (“HOA”) is different, but most are governed by a long set of rules and regulations.  These rules, state laws, and the association’s “Declaration of Covenants” determine whether or not your association can charge you legal fees.  In Colorado, the Colorado Common Interest Ownership Act (“CCIOA”) also controls the rights of many homeowners and associations.  See Colorado Revised Statutes § 38-33.3-101 et seq. 

When you were considering whether to purchase your property, you should have received a copy of the HOA’s Declaration of Covenants and any additional rules and regulations.  By purchasing the property, you agreed to be bound by these rules.  The bottom line is you have a duty to pay your assessments on time every month and live by the other rules.

Frequently, an HOA charges legal fees to a homeowner for costs of collection.  In many situations, the homeowner falls behind on payments – for assessments, fees, etc.  When the HOA has sent notices but the homeowner still doesn’t pay his or her balance, the association may choose to contact an attorney for help.

If your HOA has the right to charge late fees and attorney fees, and you fall behind on monthly assessments, your HOA can bill you for the legal fees it incurs to have an attorney review your file and/or get a lien against your property.  Since you agreed to be bound by the rules, you essentially agreed to pay these charges.

However, in Colorado, just because the HOA puts these fees on your bill does not mean that you have to pay them without asking any questions.  Colo. Rev. Stat. § 38-33.3-123 (1)(e) makes it clear that a homeowner has the right to challenge these charges.

The best plan by far is to stay current on your financial obligations to the HOA, and live by the rules and regulations so you do not get fined.  If you fall behind, though, contact the HOA and see if you can negotiate the charges.  You may be able to get the fees reduced or removed entirely.

Every situation is different.  Please contact our office if we can assist you with your concerns.

by Lisha Sorensen, Attorney, Hanes Hrbacek & Bartels LLC

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