Posts tagged with "appeal"

Assets Protected From Creditors in Connecticut

In today’s economy more and more people find themselves having a hard time paying the bills and avoiding late payments.  Still others have a problem with creditors chasing them for unpaid debts.  Now more than ever it is important for you to know what assets are protected from creditors and what are not.

Connecticut law provides some protection from creditors in a situation where your income or assets are subject to a court judgment or lien.  You can protect yourself in a variety of ways by planning ahead and consulting with a professional financial planner and an attorney.   Taking out liability insurance or setting up a corporate entity or trust for your property are examples of how you can shield your assets from future creditors.  However, there are some individual assets that are automatically protected from creditors.  Here is brief summary of the law in Connecticut:

A.            Wages

Once a creditor obtains a judgment against you, it can apply for an execution against your wages.  See Connecticut General Statutes, Section 52-361a.  Connecticut law does provide for some protection in this situation.   No more than twenty-five percent of an individual’s weekly disposable earnings may be subject to a wage execution.  The portion of disposable earnings subject to the wage execution is withheld and applied to the amount of the judgment.    In some cases, the maximum amount that can be withheld may be less depending upon the ratio between the individual’s disposable earnings and the hourly minimum wage in effect at the time of the execution.

B.             Retirement Plans

Generally, retirement plans are exempt from claims by creditors.  Both IRAs and 401ks are protected assets pursuant to Connecticut General Statues, Section 52-321a.

C.             Personal Property

Connecticut law provides a list of exempt personal property that creditors cannot claim an interest in pursuant to Connecticut General Statutes, Section 52-352b.  The list of property includes basics necessities such as apparel, bedding, foodstuffs, household furniture and appliances.  Items necessary for a person’s occupation or profession such as tools, books, instruments, farm animals and livestock feed are also considered exempt property.  Wedding and engagement rings are not subject to creditor claims as well.

D.             Insurance and Government Assistance Payments

Some insurance and government assistance payments are exempt from creditors under Connecticut General Statutes, Section 52-352b.   Health and disability insurance payments are exempt as are Workers’ compensation, Social Security, veterans and unemployment benefits.  In addition, under Connecticut General Statutes, Section 38a-453, creditors of an insured cannot seek payment from a life insurance policy beneficiary under most circumstances.

E.             Child Support and Alimony Payments

Any court approved child support payments received by a debtor are exempt and protected from creditors.  Alimony payments, to the extent that wages are exempt from creditor claims, are also protected.  See Connecticut General Statutes, Sections 52-352b & 52-361a.

F.             Real Estate

Your homestead or personal residence is exempt from creditor claims up to the value of seventy-five thousand dollars.  If a creditor has a money judgment arising out of hospital services, then the value of the exemption increases to one hundred twenty-five thousand dollars.  The exemption is calculated based upon the fair market value of the equity in the property taking into account any statutory or consensual liens on the property.  See Connecticut General Statutes, Section 52-352b.

There is no such exemption in place for commercial real estate or rental properties.

G.             Motor Vehicles

Only one motor vehicle is exempt from creditor claims up to the value of one thousand five hundred dollars.  The exemption is calculated by estimating the fair market value of the motor vehicle and taking into account any relevant liens or security interests.  See Connecticut General Statutes, Section 52-352b.

H.              Bank Accounts

         A creditor can enforce a judgment by way of a bank execution.  However, the same exemptions apply to bank accounts as they do to government assistance, insurance, alimony and child support payments as outlined above.  Therefore, you have the opportunity to challenge a bank execution based on these exemptions and prevent a creditor from taking money out of your account.   In addition, you can claim a general exemption not to exceed one thousand dollars.

In conclusion, Connecticut law prevents creditors from seizing all of your income, property, possessions and savings pursuant to a judgment or lien.  However, the law does not prevent a debt collector from jeopardizing your livelihood and financial wellbeing.  You best bet is to limit individual liability and plan ahead to avoid a creditor claim in the first place.  Consulting with a professional financial planner and an attorney is recommended.

Connecticut Appellate Court finds that a Creditor is allowed to conduct Discovery pursuant to a Probate Court Order

The executors of the Estate of F. Francis D’Addario (the “Estate”) filed an interim accounting with the Probate Court for the District of Trumbull.  The Probate Court then allowed the Cadle Company (“Cadle”), an unsecured creditor of the Estate, to conduct discovery in reference to the management of the Estate’s assets and the concerns it had regarding the accuracy of the accounting.  Both the executors and Cadle appealed the discovery order and the Superior Court affirmed the order permitting discovery but remanding to the Probate Court.  The Superior Court found that the scope of discover ordered by the Probate Court was beyond its jurisdiction.  Cadle appealed the Superior Court ruling.

On appeal, the Appellate Court decided the issue of whether the Probate Court had jurisdiction to allow a creditor to conduct discovery into the business judgment and operations engaged in by executors in managing estate assets.   The Appellate Court found that the Probate Court had the power, under Conn. Gen. Stat. §45a-175(g), to order broad discovery in an accounting proceeding.  This power coincided with the same power that the Superior Court would have in a case involving a challenge to such accounting.  Therefore, the Appellate Court reversed and remanded to the Superior Court to reinstate the original Probate Court discovery order.

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Russell J. Sweeting, a lawyer in the firm’s Westport, Connecticut office in Fairfield County by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.

In re Probate Appeal of Cadle Co., 129 Conn. App. 814; 21 A.3d 572 (2011)

Connecticut Appellate Court finds that Executor did have authority to bring a Summary Process Action on behalf of an Estate

The plaintiff, Arthur E. Scott, Jr., executor of the Estate of Barbara H. Scott (the “Estate), brought a summary process action to evict the defendant, Mark M. Heinonen, who resided on certain real property that was owned by the decedent.  The property was specifically devised to the defendant and his brother in the decedent’s will.  However, the plaintiff sought to evict the defendant pursuant to Conn. Gen. Stat. § 47a-26d in order to market the property for sale and satisfy the Estate’s financial obligations.  The Superior Court ruled against the plaintiff and concluded that he lacked the power to evict without a contract of sale or a further order of the Probate Court.  Judgment of possession was entered in favor of the defendant.

On appeal, the plaintiff argued that the Superior Court incorrectly found he did not have the authority to evict the defendant.  The plaintiff claimed he was authorized by the Probate Court to market the property for sale.  The Appellate Court found that the plaintiff did have the power to bring the summary process action in his role as the fiduciary and legal representative of the Estate.  The Estate held title to the property pursuant to Conn. Gen. Stat. § 45a-321 and the Probate Court properly ordered the plaintiff to satisfy debts against the estate by selling the property pursuant to Conn. Gen. Stat. § 45a-428(a).  Therefore, the judgment of the Superior Court was reversed and the case was remanded so that judgment could be entered in favor of the plaintiff.

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Russell J. Sweeting, a lawyer in the firm’s Westport, Connecticut office in Fairfield County by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.

Scott v. Heinonen, 118 Conn. App. 577, 985 A.2d 358 (2009) 

In Light of Recently Decided Precedent Regarding Breath Tests, Court Affirms Judgment in Pending DUI Appeal

In a recent criminal law matter, the Appellate Court of Connecticut considered whether a court improperly denied a defendant’s motions in limine to exclude toxicology evidence that he argued did not comply with statutory requirements.

This case arose from an incident that occurred after midnight on July 10, 2004. The defendant was driving his vehicle on the Merritt Parkway when he drove off the Exit 38 off-ramp and hit multiple trees before coming to a stop. A Norwalk police officer arrived and observed the defendant outside the vehicle, but the defendant denied that he was the driver. Soon thereafter, a state trooper arrived and made the following observations of the defendant: the smell of alcohol, red glassy eyes, and a cut on his hand and lip. He concluded that the defendant was the driver, and administered field sobriety tests, which the defendant failed.

The defendant was brought to the state police barracks in Bridgeport and asked when he started to drink. He responded he consumed four beers at a restaurant in Stamford beginning at 10pm the night before and stopped drinking after the accident occurred. He additionally noted that he did not have anything to eat since breakfast the morning before. The defendant submitted to two breath tests on the Intoxilyzer 5000 machine, which resulted in blood alcohol content readings of 0.225 and 0.209, both more than two-and-a-half times the legal limit.

The defendant was charged with operating a motor vehicle with an elevated blood alcohol content, which violated Connecticut General Statutes (CGS) § 14-227a(a)(2). Before trial, he submitted several motions in limine exclude the Intoxilyzer results, claiming that the tests “did not comply with state regulations in force at the time of the incident.” The court denied the motion, noting that the breath tests performed in this case were in compliance. The defendant plead nolo contendere (no contest), and after sentencing he appealed his conviction. He argued that the court improperly denied his motion because “the apparatus reports blood alcohol content in terms of weight per volume percent and not a weight per weight percent.”

After the defendant’s initial brief was submitted, but prior to adjudication of this appeal, the Appellate Court published its decision in State v. Pilotti, 99 Conn. App. 563 (2007). In Pilotti, the facts were substantially the same and the defendant made the same argument as presented in the case at bar. The Pilotti Court noted that the legislature intended to include breath testing under CGS § 14-227a(b), not just blood testing, and further wrote:

[CGS] § 14-227a(b) requires the state to establish as a foundation for the admissibility of chemical analysis evidence that the test was performed with equipment approved by the department of public safety. It does not require … that the device satisfy the criteria set forth in the regulations.

In other words, evidence will not be deemed inadmissible where “testing that complies with the regulatory requirements is deemed to be competent evidence.” Thus, in the case at bar, the Appellate Court found that Pilotti was controlling, and because this case was nearly identical, it held that use of the Intoxilyzer 5000 machine satisfied the statutory requirements of CGS § 14-227a(b).

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Court Denies Bail to Repeated DUI Offender

In a recent criminal law matter, a Superior Court of Connecticut considered a defendant’s motion to be released on bond pending the appeal of his conviction of three counts of operation of a motor vehicle while under the influence (OMVUI) of alcohol.

In this case, the defendant was a self-described victim of the disease of alcoholism, and was first convicted of OMVUI on December 15, 2008. Less than a month later, the defendant was involved in accidents where his blood alcohol content (BAC) exceeded 0.23, and he was again charged and convicted of an additional two counts of DUI. Pursuant to a plea agreement, the defendant was sentenced on all three counts, one as a first-time offender, and two as second-time. On January 20, 2009, the defendant filed a motion to vacate, arguing he should have been charged and sentenced as a first-time offender on all three counts, but this motion was denied. The defendant then filed a motion to be released on bond pending his appeal.

Under Connecticut law, there is no constitutional or statutory right to bail. It is subject to the broad discretion of the trial court, and is “rarely allowed when the crime is serious.” Our legislature has characterized OMVUI as a serious offense, as evidenced by increased penalties including mandatory minimum sentences and fines. In this case, the defendant repeatedly operated his car while under the influence with extremely high BACs. “To release the defendant on bail would place the general public at risk of harm from the defendant.” In addition, because the defendant failed to appear in court, custody was necessary to provide “reasonable assurance” that he would appear for his court date. Therefore, the defendant’s motion for release on bond was denied.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Connecticut Appellate Court finds that Misappropriated Funds should not be part of Probate Estate

Connecticut Appellate Court finds that Misappropriated Funds should not be part of Probate Estate
Przekopski v. Przekop, 124 Conn. App. 238, 4 A. 3d 844 (2010)

The defendants, a sister, individually and as the executrix of her father’s estate, appealed from the judgment of the Superior Court, which upon a de novo appeal of a Probate Court order, denied a motion for rectification or for a corrected judgment, and ordered that the bank accounts misappropriated by the plaintiff brother be returned to the father’s estate for distribution.

The Appellate Court concluded that the Probate Court ordered the proper remedy and that it was improper for the Superior Court to order the transfer of the misappropriated funds from the plaintiff to the estate, instead of directly to the defendant, individually. The decedent used the survivorship accounts as a method of estate planning and he intended for the accounts to pass immediately to the defendant, individually, upon his death and not to be the subject of probate.

The Appellate Court recognized the decedent’s intent and wanted to ensure that the plaintiff did not profit from his abuse of the power of attorney that he utilized to substitute his name for the defendant’s individual name on certain bank accounts containing the funds.  The plaintiff did not engage in fair dealing in transferring certain bank accounts to himself under the power of attorney and abused his position of trust. The power of attorney did not authorize the plaintiff to change the name of the survivor on the accounts.

Because the plaintiff was a beneficiary under his father’s will and stood to inherit some of the funds if they were distributed pursuant to the will, it was error for the Superior Court to order the return of the funds to the estate.  The Appellate Court reversed the judgment only as to the order that the plaintiff transfer to the decedent’s estate all of the misappropriated funds.  The case was remanded with direction to order those funds, with the exception of the sum of $ 11,000, returned to the defendant, individually.

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Joseph Maya at Maya Murphy, P.C. today at (203) 221-3100 or by email at JMaya@Mayalaw.com, to schedule a free initial consultation.

Should a Judge Make His Ruling Based on a Letter Someone Wrote, Even When That Person Did Not Testify at Trial?

A judge is permitted to admit a letter into evidence under the right circumstances.  However, if you believe the judge made a mistake in his ruling by permitting the letter into evidence, it would be wise to discuss the facts of your case with an appellate lawyer.  An appellate lawyer would be able to educate you on the potential success of an appeal as well as your claims.

If you have any questions regarding litigation in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Should a Judge Make His Ruling Based on a Letter Someone Wrote, Even When That Person Did Not Testify at Trial?

A judge is permitted to admit a letter into evidence under the right circumstances.  However, if you believe the judge made a mistake in his ruling by permitting the letter into evidence, it would be wise to discuss the facts of your case with an appellate lawyer.  An appellate lawyer would be able to educate you on the potential success of an appeal as well as your claims.

If you have any questions regarding litigation in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Connecticut Supreme Court affirms order of Accounting for attorney-in-fact appointed under Durable Power of Attorney

Connecticut Supreme Court affirms order of Accounting for attorney-in-fact appointed under Durable Power of Attorney

In re Bachand, 306 Conn. 37 (2012)   

 

Lisa Charette, the plaintiff and attorney-in-fact for Mary E. Bachand, appealed from a Superior Court judgment upholding the decision of the Probate Court for the district of West Hartford.  The decision required the plaintiff to provide an accounting of her actions as attorney-in-fact for Ms. Bachand who executed a durable power of attorney.  Ms. Bachand had progressive Alzheimer’s disease and was relocated to a long-term care facility in West Hartford, CT.  The Superior Court ruled that the Probate Court had subject matter jurisdiction to order an accounting in accordance with Conn. Gen. Stat. § 45a-175 (b) because Ms. Bachand resided within the district of West Hartford. 

On appeal, the plaintiff claimed the Superior Court improperly ruled that the Probate Court had subject matter jurisdiction to order the accounting under the circumstances and erroneously found that the defendant, Cheryl Miller-Gray, had standing to make an application for an accounting. 

The Supreme Court held that Ms. Bachand’s lack of intent to reside in West Hartford was not relevant to the Probate Court’s jurisdiction.   Under Conn. Gen. Stat. § 45a-175 (b), the term “resides” means the place where a person actually lives no matter whether they have the intention to remain there.  Further, the defendant had standing to proceed with an application for an accounting because she was the sole remaining successor attorney-in-fact pursuant to the durable power of attorney.  The defendant did not need to present evidence to establish cause for the accounting pursuant to Con. Gen. Stat. § 45a-175 (b).  Therefore, the judgment of the Superior Court was affirmed.   

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Russell J. Sweeting, a lawyer in the firm’s Westport, Connecticut office in Fairfield County by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.

Connecticut Appellate Court affirms Judgment awarding the Plaintiff damages and imposing a Constructive Trust on assets previously held jointly by the Defendant and the Decedent

Connecticut Appellate Court affirms Judgment awarding the Plaintiff damages and imposing a Constructive Trust on assets previously held jointly by the Defendant and the Decedent

 

Garrigus v. Viargengo, 112 Conn. App. 655, 963 A.2d 1065 (2009)

 

The plaintiff, an administrator of the Estate of Stella Jankowski (the “Estate”), was awarded damages in the amount of $496,070 and a constructive trust on certificates of deposit, bank accounts and savings bonds that the defendant had held jointly with the decedent.  The Waterbury Superior Court entered judgment in favor of the plaintiff.  On appeal, the defendant claimed that the plaintiff did not meet the burden of proof as to the fraud claim and did not satisfy the elements required for a constructive trust to be imposed.

The Appellate Court found that the plaintiff proved fraud by clear and convincing evidence and that the imposition of a constructive trust was appropriate.  The decedent intended for her assets to be distributed equally to her ten nieces, nephews and cousins. The defendant, one of the nieces, did not tell the decedent that the certificates of deposit, bank accounts and savings bonds would not pass to the other relatives when the defendant assisted with adding herself as joint owner of the assets.  Therefore, the plaintiff overcame and rebutted the presumption under Conn. Gen. Stat. § 36a-290 and 31 C.F.R. § 353.70 that the decedent intended for the jointly-held assets to go to the defendant.  As a result, the Superior Court’s judgment was affirmed by the Appellate Court.

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Attorney Russell J. Sweeting, a lawyer in the firm’s Westport, Connecticut office in Fairfield County by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.