A conviction for operating a motor vehicle while under the influence of alcohol or drugs is not expungeable under Ohio Law. Section 2933.36 of the Ohio Revised Code specifically lists OVI as an offense that cannot be expunged even though it may be the only conviction on the Defendant’s record. The Ohio Revised Code further lists OVI offenses as criminal convictions which would prevent the expungement of other criminal offenses on the Defendant’s record. Therefore a conviction for OVI will remain on the Defendant’s record for many years. The points for the offense, however, will be removed two years after the conviction date and OVI’s committed more than six years apart cannot be used to enhance the penalties of a subsequent OVI offense.

A coalition of  State Attorneys General and several federal agencies have negotiated  a settlement intended to provide $25 billion dollars in relief to distressed borrowers.  The agreement settles several investigations into  the mortgage loan practices of the five (5) largest loan servicers,  Bank of America, GMAC/ALLY, Wells Fargo, JP Morgan Chase and Citibank.

Who may be eligible for the National Mortgage Settlement is not known at this time, but beneficiaries must be a resident of a state that is a party to the settlement.  The assistance will benefit the following types of borrowers:  1.  Homeowners who are currently in need of a modification;  2.  Borrowers who are current with their payments, but are underwater due to declining property values;  and 3.  Borrowers who have lost their homes to foreclosure, with no requirement to prove financial harm.

Ohio is a participant in the settlement agreement.  Ohio Attorney General Mike DeWine has provided extensive information on his web site to address the settlement, to answer frequently asked questions and to highlight terms of the settlement agreement.  The Ohio AG also provides a link to an executive summary.

The current timeline for the settlement process calls for the selection of an Administrator to monitor compliance within the next 30 – 60 days.  During the next 6-9 months, the appointed Settlement Administrator, the Attorneys General and Mortgage Servicers will work to identify homeowners who are eligible for cash payments and/or principal reduction.  They will also identify those borrowers who lost their homes to the foreclosure process during the period of January 1, 2008 to December 31, 2011.  Claim forms will be sent to those  persons eligible for restitution.

If you believe you are eligible for relief and are not contacted, it is a good suggested that you contact your lender or servicer directly.  You may find links to the web sites of the participating lenders/servicers and phone numbers in this blog post.

Bank of America: 877-488-7814

Citibank: 866-272-4749

GMAC/Ally: 800-766-4622

JPMorgan Chase: 866-372-6901

Wells Fargo: 800-288-3212

Michael P. Dansack, Jr.

www.gallonlaw.com

 The first step in our ordeal was to meet with an insurance adjustor from   Travelers.  I have not had to deal  with too many insurance claims issues for personal matters throughout the years. If you are not familiar with the process, most insurance company web sites provide a link to describe the process.   Travelers devotes a link on their web page as to what to expect from the insurance claim process.

Two days after we returned home , I was scheduled to meet with the adjustor from the insurance company.   She would be the first of three insurance adjustors that we would meet with during the process.  After walking through the house with her and looking at the extent of the damage, she advised me that the scope of the damage exceeded the limits for her authority.  I was told we would need to meet with another adjustor out of Lansing, Michigan because of the dollar amount of the damage. 

The second meeting was set up within the next week.  The adjustor spent time at the property to determine the scope of the damage.  He compiled an initial report/assessment of the damages, which would later be amended after a contractor was hired.  Unfortunately, he would be called to temporarily relocate for 30 days to Maryland after Hurricane Irene.  We were then introduced to a third adjustor who would help us with the personal property portion of our claim.  She too would end up in Maryland to assist with claims due to Irene.  Although my wife would have preferred more in person contact with the adjustor, much of the claim was handled via the phone, email and ordinary mail.

There are two types of personal property coverage that most insurance policies contain.  Policies usually provide for Replacement Cost of personal property or Actual Cash Value of the proeprty damaged.  Our policy provided for replacement cost coverage.  The most difficult part of this part of the claims process is to keep track of your assets.  Organization skills are necessary to keep track of items at the dry cleaners, in storage or in some box at some location.  Upon return of the items, it is a good idea that you carefully examine the items for damage.  There were several items that the water mitigation company felt were clean or not damaged, which after careful examination, were replaced due to damage discovered. 

Selecting a contractor is also an important decision in the process.  It is a decision that falls to the homeowner, but the insurance company may have a preferred list of contractors.  I was uncomfortable with using a contractor that was on the insurance company’s short list.  There may be benefits to utilizing a contractor having familiarity with the Insurance company’s software programs and requirements for repayment.  However, I believe that it is equally important that you hire a  contractor to look out for your best interests and not the bottom line of the insurance company. 

The rebuilding process can be very stressful.  There are many decisions to be made during the process.  Decisions on materials (tile, carpet, floor coverings, cabinets, etc.) need to be made in a timely fashion.  Budgetary constraints are also present to stay within the allocations set out by the insurance company’s claims adjustor.  If you are building a house, it seems like there is a  more time to deliberate, research and to make your decisions.

Finally, there is the personal family stress during the process. It seems that every day life is tough enough, but add in the complications of living out of boxes, not in your own home, while your home gets a makeover.  Add to it the several times that our temporary landlord had an open house or real estate showing of the unit that we were living in, and the four months after we returned from vacation were no piece of cake.  My eight year old daughter was a trooper during the process.  However, you can see her excitement in the picture attached as the completion date for our home became a reality.

This is the third in a series  of blog posts to chronicle our ordeal as we deal with the  restoration of our home.  My next (and final)  post,  will deal with our return home before Christmas.   My blog postings have not been solely about legal issues, but structured to give some insight into what it is like to deal with a devastating loss and the challenges that one faces in trying to rebuild their home.

In September of 2008, the State of Ohio, enacted legislation requiring The Department of Public Safety to establish a registry for Ohio’s habitual OVI offender’s. A habitual offender is anyone who has been convicted of five (5) or more OVI offenses within the proceeding twenty (20) years. This registry is intended to serve as a public record of who the habitual offender’s are in the State of Ohio and where they reside. It is also intended to embarrass the most serious offender’s and serve as a deterrent to those who do not want to be included on this list. The registry can be accessed by inputting the offender’s name and the registry will list the number of OVI offenses he or she has committed and his or her date of birth and address. Although many claim that this law creates an invasion of privacy, this concern is outweighed by the government’s interest in protecting society.

The Bureau of Labor Statistics (“BLS”) projects that home health aid jobs will increase nearly 50% between the years 2008 and 2018. In 2008, BLS found the median hourly wage of home health care services employees was only $7.94. Many home healthcare employees spend significant time traveling between visits for which they are not compensated, and work more than 40 hours per week, but are not paid overtime. Unfortunately, this is the case because home healthcare employees are generally exempt from the Fair Labor Standards Act (“FLSA”) as “companionship services”, which means their employers are not required to pay minimum wage or overtime compensation.

Long overdue, on December 27^th, 2011, the Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking that would modify the Fair Labor Standards Act (“FLSA”) to require overtime pay for home care workers. Significantly, the proposal limits the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household. Comments on the proposed rule may be submitted online by anyone February 27, 2012. We look forward to reporting when the proposed rule is adopted by the DOL.

If your license has been suspended by the Bureau of Motor Vehicles and you are struggling to pay the reinstatement fees to get a valid license you may obtain relief through a bankruptcy proceeding. The Ohio Revised Code in §4510.10 states that reinstatement fees are debts that may be discharged in a bankruptcy proceeding. In other words, the Bureau of Motor Vehicles can be listed as a creditor in a bankruptcy case and that obligation will be discharged along with all the other debts listed in the case. As soon as the Registrar for the Bureau of Motor Vehicles receives notice that a bankruptcy petition has been filed, the obligation to pay the fee is discharged and in many cases a new drivers license is issued to the individual.

Second Installment of a Series

As we were still in a state of shock, one of our neighbors started calling around to see if there were any hotel vacancies that night so that my family and I would have a place to sleep.  As it was I didn’t get much sleep that night….

We ended up at the local Residence Inn – Maumee, Ohio for the first week after returning home from our summer trip.  Although it is a nice place, another hotel was the last place that I wanted to be after returning home from a 6 day vacation.  We knew after the first night that we would need to find other accomodations for the period of time that our home would be under construction.

One of the first items that the owner of the emergency cleanup company advised me of was to check on the level of insurance coverage I had for alternate living expenses.  He was concerned that whatever accomodations needed for the duration of the reconstruction, that we lived within the budget allowed by our homeowners’ insurance policy.  Thankfully we were protected by our insurance agent and we had adequate alternate living expenses to cover the costs of our housing and other displacement costs.

A personal homeowners insurance policy pays to repair or replace your home and possessions when they are damaged.  The main portion of the policy covers the repair and replacement for the structure of the house.  Also covered are the homeowners’ personal possessions.  You may wish to consider a policy that pays to replace items rather than cash value coverage.

Most policies also provide coverage for liability in order to protect you for damage inflicted to people or property.  Finally, your homeowners policy should provide for coverage of your additional living expenses if you are unable to remain in your home after damage and during the time of its repair.  If you are concerned as to whether you have enough homeowners insurance, you may want to check out Liz Weston’s MSN Money Blog captioned “Is your home underinsured?  8 keys“.

The first morning after discovering the water damage, I needed to make some phone calls and I returned to our home.  We were fortunate that we had so many helpful neighbors.  They started to contact the developer of our subdivision to inquire as to whether we may be able to rent a spec home he had just built in our neighborhood, but one street over.  He gave it consideration and agreed to rent the home to us. His willingness to help us out was very much appreciated, as it allowed my 8 year old daughter to remain in the same neighborhood with many of her friends and would allow her to ride the same school bus to school.  Although he didn’t need to do it, Richard Leffler of Leffler Custom Homes stepped up and helped us out.  We are thankful for his kindness.

Next on the to do list was a meeting with the insurance adjustor.  In retrospect, I should say, insurance adjustors, with the emphasis on there being more than one.  I will fill you in on that part of the story in my next installment.

Michael P. Dansack

www.gallonlaw.com

It is my plan to continue this series of blog posts to chronicle our ordeal as we deal with the insurance company and the restoration of our home.  In the next  posts, I will chronicle dealing with Insurance companies on damage claims,  the stressful nature of trying to rebuild/restore your home , replacement of personal property and the back and forth with the insurance company and vendors.  I will also touch upon the help, kindness and understanding that we have received from our neighbors, family, co-workers and friends.  Although my postings will not be solely about legal issues, it may give you some insight into what it is like to deal with a devastating loss and the challenges that one faces in trying to rebuild their home.

To say that purchasing a home is a big investment is a bit of an understatement. Unfortunately, too many purchasers take the offer process too lightly and don’t understand all of the provisions in the purchase agreement. A good buyer’s realtor is the key to protecting you from making major mistakes.

This problem recently came to light in a deal for an offer to purchase a condo. The condo was listed by the listing agent as available for sale via FHA and VA financing. However, condo associations are required to be pre-approved for FHA financing, and this particular association was not pre-approved. The buyer’s lender discovered this fact just before closing and would not approve the FHA loan. Since the buyer’s could not obtain FHA financing they terminated the agreement within the terms of the purchase agreement. The problem is that the buyers put down a $10,000.00 earnest money deposit. Even though the property was misrepresented in the listing agreement, the sellers argued that my clients breached the agreement and that they are entitled to the earnest money.

The first question the buyers asked when they retained me was how they could have prevented this problem. While nothing may have prevented this issue in its entirety, they could have mitigated their losses by only putting forth a $500.00 earnest money deposit. An earnest money deposit is a show of good faith that the purchaser is serious about his/her intent to purchase the property. A typical earnest money deposit in our market is $500 – $1,000, no more is necessary. A larger earnest money deposit does not show any more good faith. In fact, the more earnest money on the table, the greater the chance that if the buyer rescinds the offer, the seller will argue that the buyer is in default, and therefore that the earnest money deposit should be given to them.

In September 2010 the Toledo Bar Association and the Toledo Board of Realtors approved updated versions of the real estate purchase agreements. The new Financing Contingency reads as follows:

FINANCING. This Agreement ____ is not ____ is conditioned upon Purchaser securing a Conventional ___ FHA ___ VA ___ Other (if Other is selected, write in type of loan) loan commitment within _____ days (this provision is not applicable if the number of days is left blank) after Acceptance (the “Financing Contingency Period”). Purchaser shall pursue such loan in good faith and with reasonable diligence. If a loan commitment specific to the Property cannot be obtained by Purchaser, either party may terminate this Agreement by delivering written notice of termination to the other within three (3) days from the expiration of the Financing Contingency Period and the termination procedures of Paragraph 21 shall apply. If this Agreement is not terminated as provided in this Paragraph 5, Purchaser shall be deemed to have the ability to obtain the loan, this Agreement shall no longer be subject to this financing contingency, and the method of payment shall be deemed to be “all cash”.

I recommend that when submitting an offer that is contingent on financing, make the contingency for the same time period that the purchase is required to be completed (i.e. the closing date). Further, cross out the last sentence in the above contingency paragraph converting the deal to a cash basis. Therefore, if any last minute changes in financing arise, or your lender deems you are not eligible for a certain type of loan despite an earlier commitment, (i.e. because the property is not FHA approved) you as the buyer are not required to complete a sale on terms that are not in your best interest, or on a cash basis as stated in the agreement.

So the answer is NO, more earnest money does not mean more good faith. Don’t have your deposit tied-up arguing over who breached the agreement, have your agreement reviewed by an attorney. Both parties to a real estate purchase agreement have a 3 day right of rescission after acceptance of the offer; take this opportunity to make sure that the contract best protects your investment!

Election Day is upon us and I urge you to vote on November 8th or early vote and to vote NO on Issue 2. If you would like to vote early you may do so this week at your local Board of Elections: We Are Ohio – Action.

Issue 2 is the referendum on Senate Bill 5 passed by the Ohio General Assembly. The referendum resulted from a huge grass roots effort to have the Bill passed on by the voters of Ohio before becoming law. On its face, Senate Bill 5 drastically reduced the rights of public employees including firefighters, police and teachers to bargain about the terms and conditions of their employment. Even the right to bargain over non-economic issues such as classroom size for teachers and protection equipment for firefighters was gutted by the bill.

It is critical that we vote on Election Day. While the most recent polling shows we are gaining momentum ( 25-point lead for Issue 2 opponents is huge, but off-year referendums can be unpredictable, says elections expert | cleveland.com) the key will be turnout. Every vote will be important!

Let’s send a clear message to the legislature and the governor. Please join me in supporting working class families and the middle class in Ohio and vote No on Issue Two.

I am often asked if an operation of a vehicle under the influence (OVI) offense can be expunged like other criminal offenses.  Generally a criminal offense can be expunged if the offender has no prior or subsequent offenses on his or her record.  This rule however does not apply to OVI convictions.  The Ohio Revised Code specifically lists OVI offenses as convictions that cannot be expunged. (Section 2953.36 of the Ohio Revised Code)  Also, in addition to being non-expungable, an OVI conviction can prevent the expungement of a previous or subsequent offense.  In other words, an individual cannot expunge another separate criminal conviction if he or she has an OVI conviction.