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Ask Our Lawyer - November 2005

AT IT AGAIN?

Q: We have received inquiries concerning cities and towns that are considering the passage of ordinances attempting to regulate the use of motorcycles, ATVs, Go-Carts, and the like upon “private property.” What can we do about these proposed ordinances, and are they valid?

A: The very problem that you speak of is occurring in Winnebago County, Illinois. [Rockford]. In any such hearings scheduled to review proposed ordinances, our A.B.A.T.E. members should oppose these ordinances with the following arguments.

All should be reminded that A.B.A.T.E. is a motorcycle rights organization that has membership numbering into the thousands, and are voting stake-holders in their communities. Some of us estimate that the voting influence of A.B.A.T.E. is ten times the actual number of the membership of A.B.A.T.E.

Now for your legal arguments. These proposed ordinances are unnecessary for the reason that we already have on the books laws that adequately protect our citizens, e.g., trespass and nuisance. Why complicate our legal requirements by passing additional unnecessary laws? This proposed ordinance deprives many of the use of their property as they see fit – even though no one is complaining.

Attempt to discover who is complaining, and about what. Is it just one family or two? WHY PASS LEGISLATION/ORDINANCES to appease what may be the unappeasable, and cause unnecessary hindrance to the use of property for the rest of us.

It goes without saying that in almost every state, any proposed ordinance specifically regulating motorcycles, must by definition be invalid. All states have pre-empted the complete and total local regulation of motorcycles. Honestly, do we really need more laws to remedy the problem? As Robert Frost said, “good fences make good neighbors,” and that is the solution in Rockford.

If any of you are confronted with a Winnebago County-like ordinance, please advise us so we can help prepare the local A.B.A.T.E. organization to resist the passage of that legislation.

Dogs in the Road

Q: My friend and I were out riding the other day, and a dog came out from a yard along the road. I managed to avoid it, but my friend hit it head-on and got some nasty injuries. The dog’s owner said he had just let the dog off of his leash to run around a bit in their unfenced yard, and said the accident was our fault for not avoiding the dog. What’s the deal?

A: Here’s a hint – if you want good legal advice, call A.B.A.T.E. LEGAL SERVICES; if you want bad advice, get it from the guy who owns the dog that ran out in front of you. A pet owner can be responsible for the damages caused by an escaped animal if the damaged person can show that the method selected by the owner to restrain the animal was unreasonable.

Since this owner let the animal run free, in an unfenced yard, there’s good chance for a recovery against the animal owner. Not all dogs get a first bite or a first chase. If a dog owner has a known “chaser” and that dog runs out in front of a motorcyclist, I believe that dog owner is responsible for the damage and injuries caused.

Bankruptcy changes may affect you!

Q: I’ve heard a great deal of talk recently about a new bankruptcy law. How does that affect me, and what changes does it make?

A: On Oct. 17, sweeping changes to the U. S. Bankruptcy Code took effect. Consumers and businesses will both be affected; however, the more fundamental changes will occur in individual cases involving consumer debts. The overall effect on the majority of consumer filers will be significant. Here are some of the changes.

As an individual with consumer debts, will I still be able to file bankruptcy?
Bankruptcy is still available to individuals, however, many individuals with consumer debts whose income is over the median level in their home state may have more difficulty obtaining a Chapter 7 discharge.

A Chapter 7 discharge allows a consumer to discharge most debt. Filers who have an income above the median level will be directed toward a Chapter 13 bankruptcy, which requires a payment plan for most debts. Certain Chapter 13 provisions will make payment plans cover more of the debt.

Are there other mandatory steps to be taken? What about credit counseling ?
Generally, an individual may not file bankruptcy without obtaining credit counseling from an approved nonprofit agency within 180 days before filing. Additionally, an individual debtor may not obtain a discharge until he or she has completed a personal financial management course.

May I still reaffirm certain debts?
Reaffirmation of certain debts in Chapter 7 is still allowed; however, creditors will have to provide greater disclosure about the reaffirmed debt, and the debtor’s lawyer may have to certify to the court that it does not cause an undue hardship.

Are retirement accounts exempt?
Yes, and the new law clarifies that a qualified IRA up to $1 million plus certain eligible rollovers is exempt and excluded from the bankruptcy estate.

Am I more protected if my employer files bankruptcy?
Yes. The amount of a priority wage claim has been increased to up to $10,000 earned within 180 days of the employer’s bankruptcy.

As always, if you are thinking about bankruptcy, check with a legal professional for information specific to your situation.

LAWYERS AT CLOSING - BAH-HUMBUG OR ABSOLUTELY?

Q: My wife and I are getting ready to buy a home. The closing is set for next week. Do we really need legal advice for this closing?

A: You have indicated that the closing is set for next week, so obviously you have already signed a Purchase Agreement. Since that Agreement has already been consummated, there is very little we can do to advise you with regard to that. For future reference, you should always have a lawyer of your choosing review a proposed purchase agreement prior to signing.

With regard to legal advice at a real estate closing, our answer is that you should always have counsel review the title insurance policies and the closing documents prior to closing. Your title insurance policy will almost always contain exceptions. These exceptions let the title insurance company off the hook.

These should be reviewed by your lawyer prior to closing, and debated with the title company if there are inappropriate and unusual exceptions. Generally speaking, closing documents can be changed prior to closing and remedied to benefit you. For most of us, the purchase of a home is the most significant financial investment that we will ever make. Accordingly, always seek legal advice regarding the documents that consummate that real estate transaction.

Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services

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