Restricted Driving Privileges for Delinquent Child Support

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Current Arizona law states that a parent who willfully fails to pay child support for more than six months may have their driver’s license suspended. Critics of the current law say that suspending a person’s license for failing to pay child support is counterproductive, prevents the non-paying parent from earning an income, and contributes to their inability to make the required payments. This has caused legislators to revisit the law.

Arizona legislators have introduced House Bill 2192, which addresses the concerns of the current law. The bill was approved by the house, passed the senate with a 28-0 vote, and is now ready for Gov. Ducey’s signature. Changes to the law allows the court to communicate directly with the Arizona Department of Transportation to restrict a non-payor’s license. The license may be restricted to only driving to work or school, however, it must be shown that attending either work or school will help contribute to the payment of child support. Failure to meet all requirements under the law, including establishing a payment plan with the court, could result in the suspension of the non-paying party’s driver’s license.

Law Day 2017: Free Legal Aid Clinics

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lawday300Law Day was created by Charles S. Rhyne to highlight the role that law plays in our society, and its effect and structure in our country. In 1958, President Dwight D. Eisenhower endorsed and designated May 1st as Law Day. Since its inception, Law Day has been used to promote legal education and awareness. This year, the State Bar of Arizona will continue to take part in this tradition with it’s Sixth Annual Law Day Legal Aid Clinics.

On  Saturday, April 29, 2017, from 9AM to 1PM, there will be free legal aid clinics where members of the community can sit with an attorney to ask questions in the areas of Divorce & Child Support, Immigration, Wills & Trusts, and Bankruptcy & Foreclosure. I am excited to say that I will be participating as an Attorney Volunteer to offer assistance with Divorce & Child Support questions.

If you have legal questions in one of the above areas and free time on Saturday, April 29th, come join us! There will be two locations to assist both the East & West valley. For more details, click here.

Update: Bar’s Free Legal Clinic Helps More Than 200 Consumers!

You Got Served! Now what?

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lawsuitWhat should you do if you are served by a legal process server with a Court Summons and Civil Complaint? Sounds like an easy question to answer, however, there have been many times where I’ve come across individuals who were served with a summons and complaint, failed to respond, and allowed a default judgment to be entered against them as a result. These individuals realized the importance of responding to a lawsuit after it was too late, which is usually when garnishments started to affect their paychecks and bank accounts. Though you may challenge a garnishment and a judgment after it has been entered, there is no guarantee that you will be successful.

When a person is served with a civil complaint and summons, there will usually be 20 days to respond by filing either an answer or a motion. Failure to respond within the timeframe prescribed will likely result in something called a “default judgment.” A default judgment is a final judgment entered by the Court against a defendant who has failed to respond or defend themselves in a lawsuit. A default judgment is a valid judgment that can be enforced against an individual in the same manner as if a full trial had taken place and the Court ruled against the defendant. Once a judgment has been entered against an individual, they are responsible to pay the amount awarded by the Court. If the judgment is not paid voluntarily, the successful party may proceed to collect the judgment amount by other means such as garnishments of wages and bank accounts, as mentioned above, and also general and special execution of personal or real property owned by the judgment debtor.

Do not ignore Court documents! Instead, if you are served by a legal process server with a court summons and civil complaint, you should take note of the Court where the case was filed and read the summons carefully. A summons will usually have specific instructions to follow and will contain important information as to where the case was filed, and where you may file an answer. Also, finding out where a case is filed will reveal which rules of civil procedure will apply to your case. If the case is filed in Maricopa County for an amount of $10,000 or more, the case should be in the Superior Court and the Arizona Rules of Civil Procedure will apply. If the case is filed in Maricopa County for an amount less than $10,000, the case should be in the Justice Court and the Justice Court Rules of Civil Procedure will apply. Next, you should note when you are served in order to calculate your deadline to respond. Finally, you should proceed to file a response to the complaint, or seek legal representation from an Arizona licensed attorney as soon as possible. The latter is the preferred so that you may seek legal advice as to the appropriate steps to follow in order to successfully defend against the claims against you.

Big Win for Apple in the Big Apple

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Today, Judge James Orenstein, Magistrate Judge of the US District Court for the Eastern District of New York, ruled that Apple is not required to provide the assistance requested by the FBI. Judge Orenstein explained that the All Writs Act (“AWA”) does not allow courts to act where Congress has considered but rejected to make legislation.

Judge Orenstein was mentioned in the previous article regarding Apple where we discussed the legal battle taking place in New York and highlighted some of its similarities and differences with the San Bernardino case. This New York ruling marks the second time that Judge Orenstein has ruled against the efforts of a government agency to use the AWA to force technology companies to provide assistance.

A copy of the recent order has been made available online. This ruling makes things much more interesting regarding the utility of the 227 year old law in modern (technology-driven) society. If the Magistrate Judge in the San Bernardino case maintains her earlier ruling, there is a possibility the contrasting outcomes will drive this dispute towards an epic battle in front of the US Supreme Court. One thing is certain, things are just getting started.

Apple’s Effort to Define The Line Between Security & Privacy

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Not too long ago, many government agencies requested and received assistance from Apple Inc. (“Apple”) in decrypting information on iPhones. The demands increased rapidly, making it necessary for Apple to create a “waiting list” to handle the requests. The high number of demands required Apple to not only be a tech company which designed, developed, and sold consumer electronics, computer software, and online services, but also an arm of the government which bypassed security features put in place to protect the consumers by exploiting its flaws.

Government agencies have long set their eyes on regulating advancements in cryptology by technology companies. The motivation behind calls for regulation is to maintain an avenue where law enforcement agencies could access personal data. Tech companies also made sure their voices were heard by asking President Obama to turn down any legislation altering the companies’ security efforts that made it to his desk. Initially, the President decided that it was best not to push for such legislation. To date, Congress has not created legislation altering advancements in cryptology either.

After some time, Apple felt it had been put into uncomfortable position on too many occasions and was forced to find a way to avoid similar situations in the future. In light of major incidents of security vulnerability exposures, many entities, including government agencies, made improvements to increase tech security. Apples improvements, however, made it impossible for the company to extract data from iOS devices for themselves, or government agencies. This change prompted government agencies to get creative in their fight against tech companies and their advancements in personal data security. They turned to the All Writs Act, a federal statute originally created in 1789, three years before the adoption of the Fourth Amendment.

What is the All Writs Act?
Title 28, section 1651 of the United States Code, commonly known as the All Writs Act (“AWA”), allows the Supreme Court and all courts established by Act of Congress to issue all writs necessary or appropriate in the aiding of their respective jurisdictions and agreeable to the usages and principles of law. Continue reading →

Landlord’s Failure to Provide Heating for Tenants

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Cooler weather has now arrived in Phoenix. Although the people who are from the Northeastern region of the country are still wearing shorts and sandals, the rest of us are grabbing long sleeve shirts and jackets from the back of the closet to keep warm. During this time of year, heating units are essential to homes and apartments as tenants turn away from air conditioning. If a landlord has control of or has agreed to provide utilities, they are required by state law to ensure they are in working condition during the winter season.

A.R.S. § 9-1303(d) states that a lack of adequate heating and cooling constitutes a condition that materially affects the health and safety of the occupants of a residential rental dwelling unit. In order to comply with the law, a landlord must provide adequate heating when required by seasonal weather conditions, make repairs, and do whatever is necessary to put and keep the premises in a fit and habitable condition.

If a landlord is required to provide heating but fails to do so, it is considered a material noncompliance by the landlord. After giving notice to the landlord and waiting the statutory periods set to allow the him or her to fix the problems outlined in the notice, a tenant may be able to seek self-help remedies or terminate their rental agreement.

To learn more about Tenant rights under the Arizona Residential Landlord & Tenant Act, or to schedule a consultation, call 602-561-0258.

 

Tenant Rights: An Introduction to Arizona’s Landlord-Tenant Law

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Arizona is the home to over six million people, and currently has the sixth fastest growing state population. Many of those who call Arizona “home” are renters of an apartment or house. Though renting is common, few people are aware of their rights as tenants. Information about tenant rights is available to the public, however, it is sometimes difficult to understand and interpret due to the legal terms and phrases added into the language. Understanding Landlord-Tenant law is very important and necessary to avoid unintentionally foregoing rights and being taken advantage of by landlords.

Suppose a landlord, in a hurry to lease his property to a tenant in order to secure additional income, ignores warning signs that indicate that there is a problem with the home’s hot water heater. Instead, the landlord leases his property to a couple with little children without making repairs. As time passes, the warning signs materialize into a broken faucet, and one of the little children suffers severe burns and is hospitalized, resulting directly from the water heater. It is possible that the landlord could be held responsible for failing to make the premises fit for habitation or take precautions for the safety of the minor child as would have been taken by a reasonably prudent man under similar circumstances. Arizona law grants these protections, however, because of the lack of awareness, tenants let the landlord off of the hook by bearing the full cost.

The Arizona Legislature created laws governing the relationship between Arizona landlords and their tenants, outlining the obligations of both parties, and designating remedies to enforce rights and address certain issues. These provisions can be found in the Arizona Revised Statutes Section 33-1301 to 33-1381, commonly referred to as the Arizona Residential Landlord and Tenant Act (“ARLTA”).

ARLTA applies to and governs the rental of “dwelling units.” A dwelling unit is a place designated and used as a residence, such as apartments and houses. The landlord-tenant provisions of ARLTA do not apply to commercial property, such as a rented office spaces or store fronts, as they are not considered to be dwelling units. ARLTA covers a wide range of topics to help guide renters throughout their lease, such as notice requirements and when notice is considered to be given or received; rental agreements and which provisions are prohibited as a part of the agreement; utility charges; discrimination; early termination of a lease; security deposits; bedbug control; and landlord and tenant obligations.

For more on Arizona’s Landlord-Tenant law, visit WhitingLegal.com periodically as we will review cases involving disputes between Landlords and Tenants, and highlight solutions to difficulties frequently experienced by tenants.

The Beginning: Bridging the Gap

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The decision to begin blogging was more than just to develop a brand identity. The goal is to reach the public and create relationships, share legal knowledge, keep the community informed, promote conversation and feedback, address commonly asked questions, and offer a unique interpretation.

The absence of information advances injustice and leads to inequality. “Ignorantia juris non excusat” is a legal doctrine which asserts that a person’s ignorance of the law is not a valid defense to criminal or civil liability. The expectation is that everyone is either aware of the controlling laws, or can find a way to become informed.

Today, legal professionals must use every platform available to get information to the community. Blogging is a great channel for communication in the digital age and Whiting Legal intends to use this form of communication to provide a starting point for grasping legal concepts and engaging in discussion about the law; the beginning of bridging the gap.