Straight Talking on The Law

Disclosure of Identity of Concealed Handgun Licensees

By: Robert J. Harris

If you have an Oregon concealed handgun permit, you should be aware that based on a ruling in a case stemming from a lawsuit by a Medford Oregon teacher, your status as a license holder may be considered a public record subject to disclosure under the Oregon public records laws. The Court held open the possibility that the record is NOT subject to disclosure if the permit was obtained for legitimate security purposes.

In response to this Court ruling, the Washington County's sheriff will ask 10,000 holders of concealed handgun licenses whether they want their names disclosed if the information is requested as an Oregon public record. Letters will go out to all Washington County license holders asking them if they obtained the license for security reasons and whether they want their information kept confidential. In addition the current application is being modified to ask the same question.

Washington County hopes that by having documentation of license holders' wishes Oregon law will allow the sheriff to reject a request for names.

If you live in  Multnomah County, the process will be different. The Multnomah county Sheriff's office will confirm that a person has a concealed handgun license on a case by case basis if someone calls with a name, there is a valid public information request. However they determine that, we don't really know.  In Clackamas County, the sheriff's office will release the information for "properly made requests." Whatever that means.

Both Clackamas and Multnomah counties are considering Washington County's process. 

The Medford case is under appeal and could be reversed of modified. However until concealed and carry licensees would be wise to inform their local sheriff that they did obtain their permit for security reasons, if indeed that is the case, and if they wish to have thier status protected from public scrutiny.

Short Sales

By Lawrence Vergun, J.D., MBA

 

Many of my clients holding residential and commercial real estate are asking about short sales, what they are, and how they work.

 

Typically, short sales occur when the value of the real estate is less that the amount of debt secured by the mortgages or deeds of trust on the property.  While short sales occur during the sale of property, they are arranged in advance of the sale. In agreeing to a short sale, the bank holding a mortgage or deed of trust on the property accepts less than the full amount of the debt owned to the bank.

 

The reason that a bank accepts less than the full amount of what is owned to them is that you are able to convince the bank (through accurate documentation – which they will ask you to provide) that you are financially unable to pay the full amount.

 

It is important that you do not handle short sales yourself, unless you are particularly experienced with these types of transactions. Ask a real estate broker or an attorney for assistance. I say this because there are a number of logistical things that require special handling.

 

Before considering a short sale, many banks would like to see an offer in hand by a potential buyer, as well as evidence that the property has been listed for some time. (Make sure that you do not enter into a binding agreement with a buyer to sell your property unless that agreement clearly states that it is contingent upon the approval of the bank. An experienced realtor will know the exact language that needs to be included in the agreement with the buyer of the property so that this contingency is in place.)

 

You also need to inquire about whether the bank or banks – and there may be more than one, if you have multiple mortgages or deeds of trust – will release you from liability for the unpaid balance of the debt if a short sale occurs. Banks are more likely to agree to this release if your property is owned as your residence, because in many states (including Oregon and California) a bank knows that if they had to foreclose on the property, they might not be able to sue you later for the difference in the market value of the property and the debt that is owned. There are many, many exceptions to this rule, so it is important that you consult with an experienced attorney to evaluate your risk of being sued later for the debt, and whether your bank will agree to release you from that liability. If you have more than one mortgage or deed of trust, an experienced attorney will be able to tell you which of the banks might agree to this type of release. 

 

Finally, there may be tax consequences to agreeing to a short sale. So you should also seek the advice of a qualified tax professional.

 

If all of this sounds confusing, it is because there are many things to consider before you decide whether a short sale is the right thing to do. However, do not be discouraged. Ask your realtor or your attorney whether it is feasible, based upon your financial situation, the type of property that you own (commercial vs. residential), and the number of banks that are involved.

_________________________________

 

Practicing since 1988, attorney Lawrence Vergun has successfully represented individuals and businesses in the areas of business, real estate, corporate and intellectual property law. He is a member of the Business Practice Group at the Harris Law Firm, PC in Hillsboro, Oregon

You can Email Mr. Vergun at lvergun@harrislawsite.com

The Ugly Truth About Debt Negotiation Firms

By: Robert Harris

A Huge tip of the hat to attorney David Giacalone for his brutal analysis of the so called debt negotiation industry.  Its a pretty long post, with some great links. But its interesting reading.

The things the debt negotiators won't tell you?

A lot. But here are some of the more important.

• You will have to quit paying your credit cards before the creditors even consider negotiation. So if your goal is to keep your credit scores from being damaged, forget about it.
• You will pay more in fees to debt negotiators than you would to an attorney to file a chapter 13 bankruptcy.
• You can actually negotiate your own debts, sometimes as effectively as the "professional" debt negotiators. You can find out how on several web sites.
• You can still get sued, have your wages garnished, and have your home foreclosed on. And the debt negotiators will do nothing for you.
• These debt negotiation firms may say you are getting the help of a lawyer. But it appears that if there is a lawyer involved, its just as the businessperson running this enterprise.

I actually had a debt negotiation company representative call me and offer to refer all his clients to us for bankruptcy services, if we would refer all our clients who didn't yet qualify for bankruptcy to his business. He told me, and I quote...."We could refer a lot of people because none of our clients actually completes their payment plan."

So he is either lying to me, or to his clients.

New Oregon Non Competition Agreement Law

By: Robert Harris

I was reviewing a non-competition agreement for a client recently, and it occurred to me that a lot of businesses hadn't yet caught up with the new Oregon law that went into effect January 1st, 2008.  Now a non-compete will be void and may not be enforced by Oregon courts unless certain steps are taken.

• The employer must inform the employee in a written job offer, at least two weeks before the fist day of employment, that a non-compete agreement is a condition of employment or if the agreement is entered into upon a bona fide advancement of the employee.
• The employee must be engaged in administrative, executive or professional work. They need to be performing intellectual, managerial, or creative tasks, as well as exercising discretion and independent judgment. The employee must also earn a salary or be exempt from Oregon's minimum wage and overtime laws.
• The employer has a "protectable interest" (employee must have access to trade secrets, sensitive, confidential or professional information).
• The annual gross salary and commission, at the time of termination, must exceed the median family income for a family of four.
• Finally, the term of the non-compete agreement must not exceed two years from the date of the employee's termination. The rule also contains a "savings provision" that may allow non-exempt employees to have an enforceable non-compete.

One of the biggest changes is that it is now essential that the notice of a non-compete be included in the original written offer of employment. This announcement must be given at least two weeks prior to the employee start date. If they are not informed before hire, you will have to wait until the employee receives a bona fide advancement before an enforceable agreement can be obtained.

The other big change is that non competes can only be enforced against employees doing administrative, managerial creative or professional work. This change was made because there were instances where for instance a parking lot owner in downtown Portland actually had his parking attendant sign a non-compete. Under former law that was enforceable. Under this new law it wouldn't be.

Employers should audit their practices and adjust accordingly. Particularly pay attention to the two week notice if you want to advance someone and have them sign a non-compete agreement.  And more importantly, before offering a non-compete agreement legal council should be consulted.

Robert Harris and Harris Law Firm provide Legal advice to businesses and individuals in the Portland Metro area, with offices in Hillsboro and Portland Oregon.

Best Criminal Law Blogs

By: Robert Harris

There are a lot of Blogs on the Law. Some are educational, some entertaining and some are both. In particular criminal Law blogs, or blogs written by criminal law attorneys are, in my opinion, the most entertaining and interesting.

Here are some of the best blogs I've found.

SCOTUS Blog – the most popular criminal law blog among criminal defense lawyers. Covering the Supreme Court more thoroughly than any other blog out there, obviously has non criminal law posts…but it probably has the most hits.

A Public Defender – written by “Gideon,” and protecting the right to effective assistance of counsel.

Sentencing Law & Policy – Ohio State Professor Doug Berman’s blog. Covers all things sentencing related. Much of a criminal defense lawyer’s job involves begging for appropriate sentences for guilty clients, so this one is a must on any lawyer's RSS reader.

Blonde Justice – Anonymous public defender blog. Good candidate for “best sense of humor in a criminal defense blog”.

Defending People –  High quality and frequent postings.

Injustice Anywhere – Public Defender in Washington.

Crime & Federalism – Daily commentary on criminal law, civil rights, and what’s new and outrageous in the Law.

TalkLeft – Actually, it’s one of the biggest baddest political blogs out there…but the Denver criminal defense attorney certainly deserves to be on this list.

Capital Defense Weekly – The name says it all. Anyone looking for the capital defense news needs to come here first.

Simple Justice – Criminal Defense lawyer Scott Greenfield’s take on matters involving the court system, popular culture, American history, and, well, everything in between.

How To Find the Right Business Lawyer

By Lawrence Vergun J.D., MBA

 

I remember the day my car broke down, many years ago right after I moved to Portland.

The tow truck company asked me where they should tow my car. Being new in town, I didn’t have a clue. I went to the nearest facility, and thankfully I was treated well and the car was fixed.

 

People ask me how to find the right business lawyer. I tell them that they are asking the wrong question. The correct question is WHEN should you find the right business lawyer. Finding a good business lawyer is like finding a good car mechanic. You should find one during the times that you don’t really need one.

 

Most business lawyers enjoy meeting serious business owners and entrepreneurs. Business lawyers like me go to Chamber of Commerce meetings, and various association functions. (When you show up at these functions, it is easy to recognize us. We’re the one who are almost always overdressed.) Feel free to strike up a conversation with us. In many cases, you will get a good idea of how we think, and more importantly, how we listen. Take our card, and keep it in a safe place.

 

Then, if you find yourself with emergency assistance somewhere down the road, you’ll know who to call.

_________________________________

 

Practicing since 1988, attorney Lawrence Vergun has successfully represented individuals and businesses in the areas of business, real estate, corporate and intellectual property law. He is a member of the Business Practice Group at the Harris Law Firm, PC in Hillsboro, Oregon

His webpage is located at: Lawrence Vergun . You can Email Mr. Vergun at lvergun@harrislawsite.com

Injured on the Job?: Oregon Workers Compensation Law

By: Casey Gibbens, Attorney at Law

Injured workers in Oregon experience some of the toughest hurdles. When you know you have been hurt on the job, tell your employer promptly. Get medical attention promptly. You may choose your own medical provider. Do not allow anyone to pressure you into failing to promptly report your injury "EXACTLY" as it happened! Good cases are often lost because a worker did not speak up immediately or are confused by their employer.

 

If your claim is denied, the notice should contain a strict time limit to appeal. If you miss this deadline, you most likely will be barred from appealing.

 

If your claim is accepted and when your claim is closed, you will receive a notice awarding permanent partial disability benefits. This notice should also contain a strict time limit to appeal. Again, you must act within this time limit to avoid losing the opportunity to increase an insufficient award.

 

Hiring an attorney to represent you from the beginning of your workers compensation claim can be beneificial.  The claims representative's job is to minimize the expense of a workers compensation claim for their company.  This is never in the worker's best interest and many benefits have been lost by workers not adequately represented.

For More information on Workers Compensation issues, please call our office or email Casey Gibbons.

Parenting Classes

By: Amy Velazquez

Parenting classes are requirement for any person going through a legal separation, divorce involving children or a custody and parenting time matter.  Each county in Oregon varies as to the type of class and completion requirements.  The Oregon Judicial Department provides a list contact information for Parent Education Programs in Oregon by County.

The required class in Washington County is Kids’ Turn.  The court will not sign off on a final judgment in a family law matter without proof of completion of the Kids’ Turn class.  The cost of attendance is $145 per person.  Classes are offered in English and Spanish.  Additional information and registration materials are  available online.

Additional parenting classes are also available through Washington County.  Classes are offered in English and Spanish.  They include: The Incredible Years Series, Strengthening Families Series and the Parents Who Care Series.   Additional information

Divorce is a difficult time for all parties involved, especially children.  The goal of these classes is to assist you in your transition and provide you with a healthy way to discuss and explain things with your children.   

"Speak Now or Forever Hold Your Peace"

If you have, at one time or another in the past, either purchased a business, or bought real estate, or even signed up for a credit card, then chances are that you have already signed a contract that contains a “speak-now-or-forever-hold-your-peace” clause. Let me explain what this clause is, and why it’s important.

 

Many contracts contain words, usually located near the very end of the document, which reads something like this:

 

This Agreement sets forth the entire, final, and complete agreement between the parties. This Agreement supersedes any and all prior negotiations, agreements, representations, and/or understandings between the parties, whether in writing or made orally.

 

While the exact wording of this type provision may vary from contract to contract, don’t be surprised to find this type of language in your agreement. It is standard and customary for contracts to include this language, but it is nevertheless very important that you understand what it means.

 

I call this type of provision the “speak-now-or-forever-hold-your-peace” clause, because the clause essentially renders unenforceable any prior oral or written representation or promise made to you before the agreement is signed, unless that same representation or promise is included in the final version of the contract. (This is, by the way, an enforceable provision and often difficult to challenge later on.)

 

The lesson here is that, before you sign the final agreement, you need to be certain that any important representations or understandings be included somewhere else in that final document that you are signing. In other words,

 

(1) Speak Now -- that is, insist that the final version of the contract you are signing include all of the important “side” agreements, oral representations, and written promises made to you in any form (including written, oral, via email), OR

 

(2) Forever Hold Your Peace – your legal ability to complain later on about those things not included in the final agreement is gone forever..

 

My suggestion is that you ask for those “missing” promises and representations be included. If the other party does not wish to commit to putting those other promises and representation in writing, then you should ask yourself how important those things are, and whether you feel you want to sign on the dotted line.

 

The bottom line: Ask that everything important to you be put in the contract. Speak now or forever hold your peace….

 

_________________________________

 

Practicing since 1988, attorney Lawrence Vergun has successfully represented individuals and businesses in the areas of business, real estate, corporate and intellectual property law. He is a member of the Business Practice Group at the Harris Law Firm, PC in

Hillsboro

,

Oregon

. His webpage is located at: Lawrence Vergun

Updates in Oregon Child Support Calculations

Did you know the Oregon Child Support Guidelines changed in October 2007?  You may want to review the Oregon Division of Child Support website

at : www.dcs.state.or.us to familiarize yourself with the changes and how they may affect you.  If you are the payor / obligor, you may be entitled to a reduction in the current amount of support you are paying.  Similarly, if you are the payee / obligee, you may be entitled to an increase in the amount of support you are paying.  If one parent has less than 25% of the overnight parenting time or visitation with the child(ren), it is likely that your support amount needs to be adjusted.  This is the case, regardless of whether you have sole custody or joint custody.   

 

There have also been changes with regard to health insurance coverage.  As the payee / obligee, if the payor / obligor does not have a health insurance plan to cover your child(ren) you may be entitled to “cash medical support” to defray the costs of medical expenses. 

 

Feel free to call our office to set up a consultation regarding this change or any other family law / domestic relations matter.  I would be happy to review your current support amount and run new calculations based on this change in the law.

- Amy Velazquez