Update on My Dad's Estate

[Jestjoan]

Thanks for posting.........

 

[grest]

yippee!
Connie

 

[riverdees05]

More update:

"It is his dad who paid the upfront amount of the restitution agreement, his dad who has been paying the monthy amounts, and his dad vis-a-vis his son's attorney who said we would not see any money after probation ended, leaving 12 years of payments.

So if his dad will not pay now, to keep his son out of prison, then he will not pay once probation is over.

If it is a bluff they have been playing, hoping that we will take a little every month, for next to forever, and put up with missed payments, rather than risk getting nothing, we have called it.

The beneficiaries are unanimous, pay or go to prison.

There is always the possibility that the judge will not send him to prison, to fulfill his sentence, if he does not pay. That is what the Probation department and the Prosecutor are for, to continue to represent the victim, in this case deceased, after the fact."

 

[JLB]

I see I have not updated this for awhile, but something came up today to remind me.

My brother and uppity stepsister attended the probation revocation hearing. They said that the judge was very severe, but they did not indicate that anything had been said about accelerating the restitution and sending creep to prison if he did not pay. The indication was that none of that even came up.

We beneficiaries had some email back-and-forths about that, and still neither of them mentioned anything about those topics coming up at the hearing. So, I followed up with the County Attorney who represented the state, asking what he thought about us accelerating the restitution now. All this time I have been thinking he and the estate's attorney totally blew me off on that.

Today a copy of the transcript arrived. In his opening statement, the first thing he told the court was that the beneficiaries want to accelerate the restitution or have creep serve his 10-year prison sentence. Then he recommended against that, asking for stricter probation and an increase in the amount of the monthly payment.

Well, duh, no wonder he didn't answer my follow-up emails! He addressed those issues in court! And where were my borther and stepsister? What hearing were they listening too? Did they purposely let me continue to pursue that, knowing it would make me look like a fool?

Needless to say, what little trust I had in them is gone.

Specifically, the judge increase the monthly payment, made it clear that this payment is creep's #1 priority, since he has no other obligations that carry a 10-year prison sentence if he does not pay them. If he stops paying during the probation period, which runs through the end of 2008, he will be subject to the 10-year prison sentence AND if he misses payments after his probation is over, he will be subject to 6 months in the County Jail (a worse place) for every payment he misses (for contempt).

Originally there was a 5-year probation period and a 17-year restitution period. It was not clear before what would happen if he stopped payments after the probation period, and his family had threatened that payments would stop at that time, but now it is on the record.

Oh yeah, the restitution agreement has been turned over to the beneficiaries, but the estate still has not been closed.

 

[JLB]

I received notice that the hearing approving the Final Report will be September 27. Dad's been gone for 4 years and 3 months.

When I have a slow day I will figure out how the attornies made out.

My not-uppity stepsister is encouraging me to pursue cashing out the restitution agreement, at a discount, of course. I told her that if she can get the others to agree, then I will pursue it.

Oh yeah, the restitution agreement has been turned over to the beneficiaries, but the estate still has not been closed.

 

[DrQ]

My not-uppity stepsister is encouraging me to pursue cashing out the restitution agreement, at a discount, of course. I told her that if she can get the others to agree, then I will pursue it.

Sell the note to the mob. They will get their money.

 

[JLB]

Do you have their phone #, and may I use you as a referral?

Sell the note to the mob. They will get their money.

 

[JLB]

Wow!

All four siblings are now discussing stuff by email.

That is because I am not contacting brother and uppity stepsisters directly, but through non-uppity stepsister. They would likely not reply if the message was directly from me, but this way they can take a position against me through her.

What I have to do to get us all talking?

Brother is suggesting what I advocated in June, but he would not because I was.

He and uppity stepsister are twisting my intentions.

 

[RonaldCol]

Arbitration Is Not Legal

There was a higher level court ruling in one of the states, I believe it was New York state, that any arbitration procedure cannot deny what is protected in the United States Constitution. I don't have access to LEXUS but anyone who does can find the recent ruling on this; this was within the last year and a half so that can narrow down the search.

What I am referrring to is the protection of the Constitution to a trial by jury. This is a protected right.

Arbitrations, either in security cases, or insurance cases, etc., whatever the environment may be, may not supercede trial by jury.

If you don't like what you get in arbitration, you can always resort to civil trial within your municipality, within your state, and even go as high as the federal court. Arbitration is NOT binding, even though they say it is.

 

[JLB]

I have no idea how this applies to our situation, since arbitration is not involved. But it sounds like something my brother would say.

The only question at hand is whether the beneficiaries accelerate or start charging interest on the unpaid balance of a restitution agreement in a felony theft case, when the State and the Court have determined that is not warranted.

Our email dialogue continues, me channeling my thoughts through non-uppity stepsister, and brother and uppity stepsister replying to her.

Sure, I would like to have lump-sum payment of the full amount, or to start charging the highest allowable rate of consumer interest, but not at the risk of alienating the Court, which just ruled in our favor by stipulating what will happen if creep misses a payment after his probation period ends--6 months in the county jail for each missed payment. That was a huge decision in our favor.

I am leaning toward using that decision to negotiate a settlement with creep, through his attorney, or to saving it for the next time he misses a payment, when the Court may be favorable to us doing that then.

Except for missing three payments, he has complied with all other terms of his sentence, and the Court views that simply as a bad decision on his part since none of his other bills have a 10-year prison sentence if he doesn't pay them.

There was a higher level court ruling in one of the states, I believe it was New York state, that any arbitration procedure cannot deny what is protected in the United States Constitution. I don't have access to LEXUS but anyone who does can find the recent ruling on this; this was within the last year and a half so that can narrow down the search.

What I am referrring to is the protection of the Constitution to a trial by jury. This is a protected right.

Arbitrations, either in security cases, or insurance cases, etc., whatever the environment may be, may not supercede trial by jury.

If you don't like what you get in arbitration, you can always resort to civil trial within your municipality, within your state, and even go as high as the federal court. Arbitration is NOT binding, even though they say it is.

 

[RonaldCol]

I have no idea how this applies to our situation, since arbitration is not involved. But it sounds like something my brother would say.

The only question at hand is whether the beneficiaries accelerate or start charging interest on the unpaid balance of a restitution agreement in a felony theft case, when the State and the Court have determined that is not warranted.

Our email dialogue continues, me channeling my thoughts through non-uppity stepsister, and brother and uppity stepsister replying to her.

Sure, I would like to have lump-sum payment of the full amount, or to start charging the highest allowable rate of consumer interest, but not at the risk of alienating the Court, which just ruled in our favor by stipulating what will happen if creep misses a payment after his probation period ends--6 months in the county jail for each missed payment. That was a huge decision in our favor.

I am leaning toward using that decision to negotiate a settlement with creep, through his attorney, or to saving it for the next time he misses a payment, when the Court may by favorable to us doing that then.

Except for missing three payments, he has complied with all other terms of his sentence, and the Court views that simply as a bad decision on his part since none of his other bills have a 10-year prison sentence if he doesn't pay them.

The information I offered about arbitration being NONE binding can be used in your case, IF you decide to go back to the origination of your current dilemmas.

From what I skimmed of prior posts in this thread it appears as if you and the broker agreed to terms in an arbitration. You complied with the terms from your perspective. The broker did not. This is a clear abrogation of the agreement. Hence, you are no longer bound by the terms of the arbitration. Even by minimal standards of adherence to contract law you are permitted to seek alternatives at this point. One of the alternatives I presented to you is that you no longer need to agree to the terms of the arbitration, i.e. you can now go directly to civil court to seek compensation.

I would say that by going to civil court for a jury trial to obtain your protection as put forth in the US Constitution would be better leverage than merely trying to change the agreed terms, to your detriment, of the original arbitration agreement.

 

[JLB]

Nope. That's where you went wrong.

From what I skimmed of prior posts in this thread it appears as if you and the broker agreed to terms in an arbitration.

 

[JLB]

Question for Legal Beagles

Up until now the restitution agreement has been a two-party agreement, between my dad's Estate as one entity and creep as the other.

Now the RA has been assigned to the beneficiaries, five of us. Not a group representing the beneficiaries, but the beneficiaries ourselves.

Prior to now, one entity, the Estate, dealt with the RA. The attorney for estate conducted business regarding the RA with creep's attorney.

Can each of us not now deal (negotiate) with creep with respect to our share of the RA? Do we need the permission of the others to, say, negotiate a settlement for just our share?

 

[Dave M]

My understanding is that creep owes the estate, not each of you as individuals. I realize you are the beneficiaries, but it makes a difference. Assuming I'm correct in my understanding, if I were creep's attorney, I wouldn't negotiate with any one of you for a separate settlement.

Why? Because (for example) all but one of you might settle for discounts. Then the last remaining unpaid person might demand payment of the entire balance less what was paid to the rest of you. It would be messy.

The bottom line: Unless there is a legal document - approved by the court - that divides creep's total responsibility into individual shares, creep's attorney won't consider agreeing to what you suggest.

 

[JLB]

That is the cruxt of what I am trying to determine. When there was an Estate, there was no question how many entities were involved.

Now there is a question. There are five beneficiaries, each a legal entity, that the agreement has been legally transferred to. But still just one agreement.

So, the question I am seeking a free legal opinion to is, absent anything in writing preventing each person from dealing on their own, could they?

Dealing with each of us separately may be messy or not. Creep has been ordered to pay $600 a month until the entire debt is settled. Settling lump-sum with one beneficiary would not change the court's order, it would just reduce the unpaid balance and reduce how long he has to pay to get the others paid off.

At any point in time it is easy to establish how much of the unpaid balance each of the beneficiaries is entitled to. If I, for instance, agree to settle (for any amount), the amount of the unpaid balance will be reduced by my percentage share of it.

There would be benefits to creep. If the beneficiaries wish to start charging the highest allowable interest, 22%, which they have the legal right to do, it would be in creep's best interest to settle, lump-sum, with as many beneficiaries as he could.

Like some other issues with me, it is not about money. It is about simplifying and eliminating BS, in this case 11.45 more years of it.

My understanding is that creep owes the estate, not each of you as individuals. I realize you are the beneficiaries, but it makes a difference. Assuming I'm correct in my understanding, if I were creep's attorney, I wouldn't negotiate with any one of you for a separate settlement.

Why? Because (for example) all but one of you might settle for discounts. Then the last remaining unpaid person might demand payment of the entire balance less what was paid to the rest of you. It would be messy.

The bottom line: Unless there is a legal document - approved by the court - that divides creep's total responsibility into individual shares, creep's attorney won't consider agreeing to what you suggest.

 

[Dave M]

That's all fine from your standpoint. However, from creep's standpoint (and more importantly, his attorney's standpoint), there is no incentive to deal separately with any one of you. Unless the court approved such a deal, the court-ordered payments would remain in effect.

If you're interested in trying, it should be through creep's attorney, with a suggestion that, if you can work something out, you seek court approval. You'll need legal counsel because the complexities of such a deal require a very carefully worded document.

 

[JLB]

You are obviously missing the point that if 22% interest started running on the unpaid balance, the less unpaid balance he had the better off he would be, and, of course, the court-ordered payments would continue at the same rate, but it would not take him as long to pay it off with a reduced balance.

If one/some of us settle, we would file with the Court to amend the unpaid balance.

In case creep is slow with money figures, of which there is no indication, his attorney could say, "Would you rather pay 22% interest on $80,000, or $36000?"

Another benefit would be that if creep could settle with one/some of the beneficiaries, that may encourage the others to follow suit, seeing the wisdom of our thinking.

A third benefit may be that he may desire to negotiate our shares down a bit, and we may be willing to do that to eliminate 11.45 more years like the past 4.25 years have been.

But, as my brother would say, it all may be a mute point.

My not-uppity stepsister wants to give it a shot, and a step-granddaughter to my Dad (niece to my stepsister) likely will, too, so if we have to deal as one group, and if majority rules, we would have it.

In any event, it doesn't make any difference in the first step, which would be to contact creep's attorney and see if creep is interested in settling, in light of the recent stiff Court decision.

 

[Dave M]

I'm obviously not missing the point. Of course he would be better off with a reduced balance, as you say. But only if the court agrees.

Without court approval, there will be no deal, no matter how attractive it might otherwise seem to be for him. That's my point, which you seemed to gloss over until now.

You asked for help. I offered some. You got argumentative. My apologies for trying to help. I'll bow out.

 

[JLB]

Maybe someone else would like to contribute.

Having dealt with the Court and the people involved for 4 years, I can't see the Court not approving anything the beneficiaries (one or all) and creep work out. I will concede that there is a distant, remote, possibility that they might not, but that possibility is not enough to keep us from trying to work something out.

If we reach an agreement, the Court either will or will not approve it, if there is a need for them to do so.

I guess creep's attorney could refuse to deal with anyone but the beneficiary group as a whole, if he was inclined against the best interest of his client.

The issue I am trying to get advice on is whether settling with one or some of the beneficiaries (rather than the group as a whole) might be an avenue we can pursue, absent any verbiage stating otherwise.

I looked to the Restitution Agreement itself to see if it provides any guidance. That was interesting in that draft versions of the agreement was between the beneficiaries (all named) and creep, and in the final version it was with the Estate of my father, and Creep.

So, the specific verbiage says creep is to make restitution to the Estate. It also says that the Estate may assign the agreement. There is no specific reference to assigning the agreement to the beneficiaries at the close of the Estate. There is no mention of creep dealing with just one entity, or each of the beneficiaries individually. There is no verbiage preventing a beneficiary from attempting to settle their share separate from the others.

I/we have not seen the order assigning the agreement to the beneficiaries and the only thing I have to go on is a statement the Executrix made, saying any of us, individually, have a right to (and I am trying to be precise with the exact words) contact people and conduct business regarding the restitution.

Here is the acceleration clause, with identities deleted:

If (deleted) fails, refuses, neglects to make any payment under the terms of this agreement by the date such payment is due, or fails to comply with other term or condition of this agreement, the entire principal balance due and owing shall at once become due and payable, without notice and without demand, at the sole option of the holder of this agreement. In that event, the remaining balance owing shall bear interest at the highest rate applicable to loans to individuals in the State of Iowa. Such interest shall accrue and be payable from and after the date that (deleted) fails, refuses or neglects to make any payment required under the terms of this agreement by the date such payment is due, or fails to comply with any other term or condition of this agreement. In that event, (deleted) consents that this agreement may be filed immediately with the Polk County District Court, without further notice to him, and judgment entered against him for all sums that are due and payable. (deleted) also agrees to pay attorney fees and all costs and expenses, including court costs, incurred by the holder of this agreement in connection with any efforts to collect, enforce or otherwise realize upon this agreement

 

[JLB]

Now that I think about, I believe we have an Iowa attorney that posts, possibly from Carroll. Care to take a stab at this--for free.

While you're at it, maybe you can decipher bear interest at the highest rate applicable to loans to individuals in the State of Iowa.

Gosh, if that means payday loans, I guess we have the right to charge, what is it, 350%!!!

I know the rate of interest on legal judgements in Iowa is fairly low, tied to a market interest rate, but this is not a legal judgement.

 

[dougp26364]

JLB,

I'm glad things have worked out on this one for you. Mixing family with extate settlements is bad enough without legal issues such as yours. Hopefully, before long this will just be another story you can relate to people having similar problems of their own.

 

[JLB]

Thanks.

I guess you just keep plugging away. You may not always get things to work out the way you want, but the plugging away lets those calling the shots know you're there, and has to affect their thinking and actions.

 

[JLB]

I'm doubtful that it does, but the Executrix is sending a copy of the order assigning the RA to the beneficiaries, to see if the wording of it might be helpful. It could be that if it assigns it from one entity (the estate) to several (the beneficiaries) that that would open the door.

 

[JLB]

You know how sometimes something sounds right, and you don't catch what it is really saying, or what might be a problem?

Well, I read the order assigning the restitution when it arrived and it seemed OK. This morning there has been another flurry of estate stuff, agreements to sign, final report to sign off on, emails, etc. In the discussion with my not-uppity stepsister, the order came up again.

When I read it again, I noticed that it refers to the assignment of the restitution payments, not the restitution agreement, so all it does is give the beneficiaries rights to the payments, without all the other benefits of the original restitution agreement, such as the acceleration clause. That clause is only a small part of the written agreement.

Having rights to the payments without the other rights clearly will not do. I have asked the Executrix to get an opinion on this, and she has referred it on to the attonrey for the Estate.

I figure if I can notice this error, so can creeps attorney.

FWIW, the Estate is now closed and the agents discharged. The order was submitted to the court June 14, but not shared with the beneficiaries until I requested a copy of it last week. It arrived after the Estate was closed.

 

[JLB]

I stand corrected. Although the Final Report has been approved, handwritten into the second page of it, the Estate is not closed. Proof of Final Distribution and a Supplemental Order are still to be done before the agents are discharged.

FWIW, the Estate is now closed and the agents discharged. The order was submitted to the court June 14, but not shared with the beneficiaries until I requested a copy of it last week. It arrived after the Estate was closed.