Legal Blog

Removal from Michigan Sex Offender Registry

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Legal Blog
Monday, 10 October 2011 16:52

Michigan has passed a new law that allows a registered sex offender to petition the Circuit Court in which he or she lives for removal from the registry maintained by the Michigan State Police. MCL 28.728, dubbed in other states as the "Romeo Law," allows offenders who meet a specific list of criteria to seek for the early removal of their names and photos from the registry.

The law requires that the victim be a certain age during the perpetration of the crime and that the offender not be older than 19 years at the time of the offense. The instances of this type of offense are narrow, but it allows for a person so convicted at an early age to live free from the stigma of the sex offender registry.

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Driver License Restoration

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Monday, 10 October 2011 16:49

Restoring a driver's license can be a difficult and long road. If the driver has lost the license from multiple alcohol related offenses, which usually is accompanied by repeated driving while license suspended offenses, the suspension period may be long.

Many drivers do not approach the restoration during their suspension period with the proper logic and attention. To make matters worse, a driver will often attend the first restoration hearing completely unprepared for the questions that are inevitably asked.

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Making Your Wishes Known – The Importance of a Living Will

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Tuesday, 17 May 2011 17:36

A Living Will should be an integral part of your estate plan.  Managing your estate not only means planning for the disposition of your assets after your death, but also means creating a plan for your treatment should you become incompetent and need medical care. A Living Will is a written document that lets your family and doctors know what kind of medical care you want to receive when you are not able to direct your care on your own.

1.  Your Medical Treatment Options. When you are a competent adult, you are responsible and able to make all the medical decisions for your care.  This means that you are able to agree to and refuse any testing, medical procedures or medication you do not wish to have.  This includes any procedures or medication that may extend your life, even if your family or doctor thinks it would be to your benefit.

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Understanding Your Right to Counsel in a Criminal Case.

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Tuesday, 17 May 2011 17:31

You have the right to remain silent.  Anything you say can and will be used against you in a court of law. You have the right to an attorney.  If you cannot afford one, an attorney will be provided to you.

Everyone is familiar with the Miranda warning - it is a staple in television police procedurals.  We all understand that you do not have to speak to officers questioning you.  But included in your Miranda warning is your right to an attorney in a criminal case. This right is sometimes less clear, but it is of paramount importance.  Your right to counsel is provided to you by both the Fifth and Sixth Amendments to the Constitution.

Read more... [Understanding Your Right to Counsel in a Criminal Case.]

Prenuptial Agreements Aren’t Only for the Rich

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Sunday, 15 May 2011 22:31

The words Prenuptial Agreement generally call to mind marriages between wealthy partners, or, more often, a marriage between a wealthy person and a person of more modest means. It may surprise you to learn that prenuptial agreements are a good idea for quite a few couples, particularly those who are remarrying.

1. Prenuptial Agreement Defined. A prenuptial agreement may also be called an antenuptial agreement. What is a prenuptial agreement? Simply put, it is a contract between two parties who are going to marry delineating what will happen to separate property brought into the marriage and what will happen to joint property in the event of a divorce or death of one of the parties.

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Considering Claims Against the Estate

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Sunday, 15 May 2011 20:32

Claims against the estate affect your estate plan.  It is important to be sure that if you have a claim against a decedent's estate that you file it in a timely manner.  If you are creating an estate plan, it is in your heirs' best interests that you create a plan that deals with many of the usual claims against a decedent's estate.

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Divorce by Business Owners – Splitting Up Your Marriage and Your Business

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Monday, 02 May 2011 14:52
Going through a divorce is difficult for any couple. When a couple that owns a business divorces, there are ramifications not only for the marital partnership but the business partnership and its financial well-being. If you and your spouse have decided to end your marriage, this more than likely means that your joint business will be affected. This includes the business's assets, and also the livelihood of your employees.

1. Determining Business Ownership. In Michigan, property acquired during the marriage is considered marital property. What does this mean for a business? If you or your spouse started the business during your marriage, the entire business is considered marital property. This not only includes a business where both spouses are directly involved but also includes a business where one spouse runs the business and the other stays at home and raises the children. In almost all circumstances, the court will conclude that each spouse owns half the business.

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Advice of Rights on Residential Mortgage Foreclosure Michigan

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Thursday, 02 September 2010 18:25

Under recent legislation, Michigan has adopted provisions for preliminary notice to debtors when a residential mortgage is foreclosed.  The bank is required to give 14 prior days notice of available credit counseling services.  More importantly the bank provides notices that the owner has a right to consult an attorney and that the attorney (or other agent) can demand a face to face meeting with the bank.  This must occur.

Once the demand is made the foreclosure is set off for at least 90 days.  The parties are required to negotiate in good for an adjustment of the mortgage.

Most interestingly the act does not say what is to happen if an agreement can not be reached.  If the homeowner does not like the bank's position the homeowner can sue in court and ask for a "judicial foreclosure".  If the bank is unsure as to the status of the negotiations, the bank may elect to proceed to judicial foreclosure.  Again, the statute does not suggest that the circuit court can cram down a principal reduction, but the act clearly implies that is the intent.

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How Michigan Banks Can Protect Itself From Liability For Disclosure of Confidential Customer Information in Response to Documents Only Subpoena

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Thursday, 02 September 2010 18:12

Gramm-Leach-Bliley Act , 15 U.S.C.A. § 6802(e) (8) allows an adverse party open access to another party's nonpublic financial information held by a financial institution by "judicial process".  Frequently, this is attempted by a "documents only subpoena" which does not require appearance before a court, but frequently appearance before the adverse party's attorney. Banks are genuinely concerned for their own liability to their customers, because the statute does not tell us if such a subpoena is "judicial process".

The issue is simple but the law is not. Without a court order or the consent of the customer, the Bank may be prohibited from disclosing non-public information as a financial institution to a private plaintiff in a civil case without further "judicial process" under the Gramm-Leach-Bliley Act, 15 USC § 6802(e)(8).  The relevant text of the statute is as follows:
Sec. 6802. Obligations with respect to disclosures of personal information

(a) Notice requirements
Except as otherwise provided in this subchapter, a financial institution may not, directly or through any affiliate, disclose to a nonaffiliated third party any nonpublic personal information, unless such financial institution provides or has provided to the consumer a notice that complies with section 6803 of this title.

(e) General exceptions
Subsections (a) and (b) of this section shall not prohibit the disclosure of nonpublic personal information -
(8) to comply with Federal, State, or local laws, rules, and other applicable legal requirements; to comply with a properly authorized civil, criminal, or regulatory investigation or subpoena or summons by Federal, State, or local authorities; or to respond to judicial process or government regulatory authorities having jurisdiction over the financial institution for examination, compliance, or other purposes as authorized by law. [emphasis added].

The language of the exception is in the disjunctive: the exception applies to (1) properly authorized ... subpoena ... by Federal, State or local authorities or (2)  to respond to judicial process or (3) [to] government regulatory authorities having jurisdiction over the institution.

The first and the third exceptions do not apply.  Is a  civil subpoena signed by an attorney alone without the customer's consent or an accompanying court order "judicial process." But it may be inferred as such. There is no authoritative precedent in Michigan that a documents only subpoena is "judicial process" under 15 USC § 6802 (e)(8).

Parties to a divorce or other contentious litigation frequently spare over a subpoena of records and place a bank between them.  One party demands production, the other refuses, the bank requests a consent from its customer and that is refused.   Then neither party seeks the intervention of the court and dig in their heels.

Like almost all other such disputes, the parties usually settle, because either one could go to court and obtain an order.   Parties could simply use other discovery means to obtain the bank records, such as a request to produce records, but they like the emotional effect of a "subpoena for your bank account."   However, where one party insists on a documents only subpoena and the other refuses consent, the Bank is damned if it does and damned if it doesn't.  Moreover, there are the financial, public relations, and management impacts of having to deal with these questions.

The prohibitions mandated by the GLBA are quite simple. The Act unequivocally states that a financial institution simply cannot disclose nonpublic personal information of its consumers to a non-affiliated third party UNLESS:(1) the financial institution clearly and conspicuously discloses to the consumer that such information may be disclosed; (2) the consumer is given the opportunity before the time of disclosure to direct that such information not be disclosed; and (3) the consumer is given an explanation of how he/she can exercise that non-disclosure option. See 15 U.S.C. §6802 (b). When the bank give its customer notice of the subpoena, the customer can decided to exercise the non-disclosure option.

The Michigan Bankers Association has advised its members that a documents only subpoena is really a request for production, and that there is a duty of confidentiality which requires notice by the Bank and a right objection by the customer to protect the customers' accounts.  However, the courts in Michigan have not fleshed out the process or rights after notice of such rights is given.

Counsel in other States suggest that while there is a duty of comply with civil subpoena, banks run the risk of sanctions from their customers Gramm-Leach-Bliley Act.

The Courts in the few States to pass on these disputes, never reach the issue, since by the time the matter is on appeal, the trial court has already issued the needed order for production, nullifying the issue of the initial response of the financial institution

Banks are threatened repeatedly by parties in litigation with claims for sanctions and damages.  When necessary a bank should seek a protective order from the court to quash or enforce the subpoena, but protect the Bank from further liability and costs.

Read more... [How Michigan Banks Can Protect Itself From Liability For Disclosure of Confidential Customer Information in Response to Documents Only Subpoena]

Establishing Paternity in Michigan

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Tuesday, 31 August 2010 13:29

In the ideal circumstance, every child would be connected in some way to supportive parents who are able to provide emotionally and financially for them. But life is rarely so straight-forward and many families are faced with issues of unclear paternity or even disputed paternity.

The need to legally establish paternity might be particularly great in instances of contested child custody or child support in Michigan. In cases like that, you may need the assistance of a Chelsea family law attorney.

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