LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections
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LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections
At the strong arm of the Landlord do as they say or get out a d sometimes connection government or not enforced. They own the land and some not all Lord all over their tenants and some tenants do it in reverse. You decide who is right or wrong your opinion matters to us
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Federal Appeals Court Rules Special Needs Trust Distributions May Not Be Counted As Income By Section 8 Housing Program

Reversing a federal district court, the U.S. Court of Appeals for the First Circuit ruled that a state housing authority cannot count distributions from a special needs trust as income in determining eligibility under the Section 8 housing voucher program. DeCambre v. Brookline Housing Authority (1st Cir., Nos. 15-1458, 15-1515, June 14, 2016).

Kimberly DeCambre, a disabled, 59 year old resident of Massachusetts, receives public benefits based upon financial need. DeCambre is also the sole beneficiary of a court-created irrevocable Special Needs Trust funded with $330,000 from a personal injury lawsuit. In 2013, the Brookdale Housing Authority (BHA) determined that DeCambre was no longer eligible for a Section 8 housing voucher because the Special Needs Trust distributed more than $60,000 during the year to pay for administrative trustee fees; cell phone, cable, and internet bills; veterinary care for cats; dental and medical costs; and travel expenses. A hearing officer upheld the BHA's decision.

DeCambre filed a lawsuit in state court against the BHA, and the case was removed to federal court. In the lawsuit, DeCambre claimed the BHA violated her civil rights by counting the payments from the trust as income. She argued that it was improper to treat the distributions from the trust as income when, under Department of Housing and Urban Development (HUD) rules, the same payments would not be considered income had she simply taken the settlement as a lump sum outside of a trust. The district court ruled against DeCambre. Although the court said it sympathized with Special Needs Trust beneficiaries who struggled to maintain eligibility for Section 8 housing assistance, the court said it was “unable to find any regulatory support for DeCambre's argument that [distributions from her Special Needs Trust] must be excluded from annual income … .” (My blog post on the DeCambre federal district court opinion can be found here.)

DeCambre appealed. The U.S. Court of Appeals for the First Circuit reversed. The appeals court held that the “BHA improperly counted the distributions from the principal of [Ms.] DeCambre's settlement-funded irrevocable trust toward her annual income.” According to the court, “we can discern no reason to exclude from annual income (as the regulations clearly do) lump-sum personal injury settlement proceeds paid directly to a tenant … yet not exclude those same proceeds merely because they '[g]o to, or on behalf of' a tenant … through a trust of which the tenant is the beneficiary.”

The opinion of the U.S. Court of Appeals for the First Circuit is annexed here – DeCambre v. Brookline Housing Authority

For additional information concerning special needs trusts and disability planning, visit: http://vanarellilaw.com/special-needs-disability-planning/

The post Federal Appeals Court Rules Special Needs Trust Distributions May Not Be Counted As Income By Section 8 Housing Program appeared first on Elder Law Attorney NJ | The Law Office of Donald D. Vanarelli.


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Chandler AZ Landlord Insurance Coverage For Dummies

Chandler AZ Landlord Insurance

When you own a Chandler hire property, your revenue depends upon keeping the room rented. That is difficult to do when you yourself have fireplace, storm or other damage, requiring your tenants to transfer and leaving you without rental income along with high priced repairs.

Landlord insurance will help protect the expense of fixes while also defending your income. Listed here are 5 important issues solved regarding Hire Property Insurance:

1. What kinds of coverages are typically included in AZ hire house insurance?

Chandler Arizona landlord insurance (also called a property fire policy) an average of includes protection for the house, liability and lack of income. You may also put recommended insurance to protect any particular house you could have in the hire like a fridge, range, or machine and drier.

Property coverage insures the developing itself and ought to be established by the cost to restore the design (it doesn't contain the worth of the land). If you can find any detached buildings on the property (like a separate storage, barn, or shed) you should examine with your insurance professional to make certain these structures are covered by the policy.

Liability is really a critical insurance in a house fire plan as you are maybe not 100% in control of the house and incidents do happen. As an example:

Your tenant is accountable for salting down on the garage, but fails to do this following a snow storm. A UPS driver then slides in the driveway hurting his back while delivering a package. Who pays for the damages from the damage?

Loss in income/rent is an essential protection to protect your investment. It is on average contained in a dwelling fireplace policy, but is prepared at a share of the property amount. Make sure you talk with your insurance qualified to ensure that that amount of coverage would be sufficient to cover your real lack of revenue should there be described as a reduction around a long period of time.

2. May Homeowners Insurance Protect Me as a Landlord?

Maybe. Like the majority of things in insurance it depends.

When you have a multi-family home and your home is in among the devices, you might qualify for a Home Insurance Policy. You will however wish to disclose to the insurance company that you do have tenants to ensure your policy includes lack of lease and appropriate responsibility limits.

If you do not live in the rental, you then most likely will not qualify for Homeowners Insurance. A home policy is made and priced for an owner-occupied dwelling. In the event that you book out your house, then you definitely do need to get the plan re-written to protect the exposures of a landlord. If you don't, then you will most likely encounter a protection problem, must a state happen, which could be economically catastrophic.

3. Imagine if a tenant triggers injury themselves?

Injury done to the house with a tenant may not be covered, but several landlords think it is beneficial to require a security deposit to greatly help cover the expense of any damage.

4. What if someone gets injured on my house?

In case a individual is injured on your rental home because of negligence on your own part – such as for instance maybe not removing an icy way – you may be held liable for medical expenses, legal costs, and more. You may also be presented liable for home damage incurred because of neglect or not enough upkeep. Landlord responsibility may insurance helps protect these costs.

5. Simply how much does it price? May I save your self hardly any money?

The expense of landlord insurance varies, and is dependent upon the place, substitute charge of the developing, quantity of hire products, era of the making, and other factors.


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Probate court budget in the spotlight Monday - MySouthwestGA.com

Probate court budget in the spotlight Monday - MySouthwestGA.com | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
The Dougherty County Finance Committee met this morning, continuing the process of analyzing the county's budget as a whole.

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Probate Court 101: What You Need to Know

Probate Court 101: What You Need to Know | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
You can also prevent contestations in court after you die by talking to your beneficiaries when you draw up the will. If there are inequalities in the way things are distributed, explain them up front.

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Elder & disabled adult abuse thriving in Washington probate courts ...

Elder & disabled adult abuse thriving in Washington probate courts ... | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
The person cannot afford an attorney and goes to court under represented. The case is decided against this disabled person; and may establish a precedent. NOW this case (this precedent) is fodder for going after another ...

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Article About Getting Paid in Probate Court - Law Professor Blogs ...

Article About Getting Paid in Probate Court - Law Professor Blogs ... | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
Unknown-4 Robert Augsburger recently published his article entitled Getting Paid in Probate Court, 44 St. Mary's L.J. 425 (2013). The introduction to the article is below: After reviewing the Texas Probate Code, Texas Property ...

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What manner of people would disrespect the death of Sister to win court case?

R.I.P  Ms. Audrey Drake the greatest Big Sister/Mother in that anyone could have. 


 


Thanks be to God for the time God allowed her to be in my life, from day one. Edgecombe County DSS did something that I define as crossing the line and I considered going there with them myself because of it but a still small voice said who told you to draw a line any how" and I knew that it was just severe hurt because they had went lo down and dirty enough to not just take my daughter unjustly but to try and make me loose my child custody case by default by failing to appear in court. The social worker Trudy Hawley told my daughter a n d I that we did not have to come to court for child custody case they filed for our court date which was the date of my Sister funeral but I had been served court papers that stated I was ordered to appear in the Edgecombe County Court in Tarboro,N C for Child Custody on 9/12/17 and I knew that if the DA Rep called my name in open court and I was not present to answer and I had been served an ordered to be that I could go to jail for failure to appear for court. Now my daughter didn't go but I did. Also I had filed a Motion with the court a motion for relief because the court the case was in had no jurisdiction over the case because the grounds they were basing it on educationally neglect included and was created as the results  of my first amendment constitutional rights and more being violated thru and by Wilson County School Board February 13,2013 dated letter to myself then Prose Rep/Parent and i requested immediate return of my daughter removed from my custody on 1/31/17 back into my custody immediately as releif. I yield to exact wording of the motion as it is filed with the Edgecombe County Clerk of Court in Tarboro NC July,2017 and was acknowledged on the date it was filed by Court during Hearing by Judge Beth Freshwater Smith but she rescued herself from being the overseeing judge and the motion was not heard or decision made and neither did Edgecombe County DSS attorney Delores  Faison respond to it which I the Respondent received a copy of their response with my being denied legal rep by Judge John Brit for and during Adjudication Hearing which was denial of fair due process of law. The EC DSS was just doing as they pleased. Just as they told my daughter and I there was no need to appear in court the day Judge Pell had ordered the Motion to be placed on the court calendar to be heard because the judge was not going to here it was going to rescue herself from tihe case again as Judge Pell was not the judge that was going to be presiding over the case on that date as he had stated he would be when he ordered my motion filed to be placed on the court case calendar for ,9/12/17 which my daughter that EC DSS SW Trudy Hawley told us not to come to court on 9/12/17 was the daughter that had temporary custody of her Sister my other daughter that was removed from custody and I knew she was going to do what EC DSS said to.keep her sister from being taken out of her custody and placed back in foster care and that another story.in itself how that was done. But just the same what manner of parent would I be not to show up for court knowing I was court ordered to do so and my daughter custody and well being was on the line. I did go to court and just like EC DSS SW Trudy Hawley had said the case was not heard the judge rescued herself from the case and Judge Pell was not the overseeing Judge and neither was my motion filed on the calendar of the court to be heard 9/12/17 as Judge Pell had ordered at the previous hearing. Then to add insult and hurt to the loss of the life of a Sister that help raised me from a child Edgecombe Country DSS wrote in their court case summary for 9/12/17 that I chose to come to court when told not to and I missed my sister funeral like I made a bad choice that should be counted against me, summary has exact wording. But it was on yesterday that I did find out that arresting me for failure to appear was not all that could have been done to me and my daughter removed from custody but the just dge could have allowed EC DSS to win the case which includes the custody of my daughter by default because I was not present in court and they could have asked for all manners of punishments or  sanctions by could rt order to be imposed uposed upon me and the judge granted those and so much more as well. The motion for relief has never been addressed by a judge but permanant custody of my daughter granted to others by a judge in the same court the motion is calendared to be heard by and/or in and the EC DSS SW Trudy Hawley if I am not mistaken name is on the letter of closure from EC DSS . The EC DSS did write I did not attend my Sister funeral in their Court Case Summary and mocked my parenting ability of my child because of my decision to and did appear in court as I was court ordered to do so , after EC DSS SW Trudy Hawley said not to. But is another lie stated in their court case Summaries as yes I came to court God saw fit that they played their little tricks but yes I cried and was hurt because I was sitting in court where I was ordered to be and my Sister/Mother was being funeralized and I as a Little Sister she gave her life for so I could do better and have and take those opportunities she may have had in life but she had held our Mother hand in her passing when I was a little girl and made promise that she would do her best to keep us together and make sure our Mother youngest children would be OK because she was not going to be with us to do that herself. As well did my Mothers Mother Grand ma Really Drake and she to was A,1 the best grandma a child could want or have. She kept her word to her dyi g daughter our Mother Dorothy M. Drake Cook  and they both Audrey Drake and Retha Drake are women that was true to their word. I did get to my Sister Audrey Drake funeral and is how I have such a beautiful pictures of her in life and death.You are liars and all I have to say that when you have to start messing with the dead to try and get a rise out of someone you falsely removed custody from child then that states more about you a d how low you are willing to and did go to justify your lies. But just as God saw fit I made after court to my Sister Audrey funeral and you did not get to win by default and all else y'all had planned for that court hearing because I didn't do as EC DSS SW Trudy Hawley said and not come to court God blessed but you know I am not about no violence and don't care if I can't afford a lawyer and the one court appointed worked more for EC DSS than me I don't care because my Sister was a saved holy ghost filled fire baptized woman while alive and for sure she did not play no BS and for sure neither do her little sister. As I know at God appointed time each and every one of you are going to have to see God for what you have done is doing and choose to continue to do to not only me any muly family but ALL per God knowledge not us and I pray that Gos pull back the covers and reveal all y'all dirty deeds and destroy the foundation that Family Court and all its tricks and treats are built upon and allowed  may the judgement of Godnot man put fear and trembling in ALL your hearts until you get it right. May the imperfections in your own families be revealed by God not man. All those things that you have unjustly removed the custody of a child or children for in judgement while knowing you yourselves have or is doing the same things but are not reporting you or one of your friends or love ones are to. I ask God to stop your funding for any case you lie about or know the allegations are not true but do as you desire any how both separate and group decision. I pra t that you have to pay back ever I'll gotten penny earned or given as a bribe of bonus or whatever the reason God knows if it was for uh njust reaons per God not us. As we wrestle not against flesh and blood so nothing personal but Lord God and I say to EC DSS and all that may apply I trust God and want cross a line I know God did not draw either but as a servant of God like so many of you that must have a turn God off button for the sake of a dollar button when it comes to your job an unjustly destroying families and people lives. Asa Minister myself that never claimed to do everything right. What I doask God to fulfill his word not mine in Psalm 78 verse ,66 but the entire chapter apply and .at the hinder part be your jobs  in Jesus name Amen   Satan the Lord rebukes you.

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Sentencing guidelines for section 205


Download Sentencing guidelines for section 205:
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Read Online Sentencing guidelines for section 205:
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Sentencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter. This section effectively amounts to the . There are no equivalent provisions in either the Convention or the Charter, nor the earlier Beijing Rules. In fact, all indications from these instruments are that
 24 Mar 2015 Act, 1959 (Act 59 of 1959), or under section 6 of the Rules Board for Courts of Law. Act, 1985 (Act 107 . conviction or any sentence: Provided that the provisions of this subsection shall not apply with reference 205 Judge, regional court magistrate or magistrate may take evidence as to alleged offence.
 for the rights of children in general and section 28(2) makes provisions for the supremacy of children's rights in every field of the law. With regard to child offenders charged with serious crimes, courts and all those dealing with them need to take their basic rights into account. Courts should observe the rules and procedures
 205. Axle weight, overloading/exceeding. 137. Axle weight, overloading/exceeding – buses/goods vehicles. 138. B. Bail, failure to surrender, Bail Act 1976, ss.6(1) and 6(2). 31. Being bribed The first section of the user guide explains the key decisions involved in the sentencing process for guidelines in. Parts 3 and 4.
 3 Since South Africa appears to be taking an African lead with respect to sentencing guidelines, there is, . Section 3(4). There are a few further basic principles, but they are not of current importance. 14. Section 5(3) — 'Sentencing guidelines are determined by applying the 205–6 (source references omitted). See also
 His release is to endure until the verdict, not until the sentence, unless the court upon verdict decides to extend bail. The accused must comply with the conditions set out in sections 60(12), 62 and 63 of the Act. In terms of section 59 of the CPA, a police official of the rank of sergeant or higher may fix bail before the first court
        
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Warrant against Asaram Bapu

Warrant against Asaram Bapu | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
Chief judicial magistrate SP Singh on Wednesday issued a body warrant against the religious preacher, Asaram Bapu, on his failure to appear in the court in connection with a case filed against him under Sections 295A, 153A,504 and 506 of the IPC.

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Magistrate Court failure to appear 

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Drug Court the 'only way' to help drug-addicted criminals (Vic)

Drug Court the 'only way' to help drug-addicted criminals (Vic) | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
Victoria's chief magistrate says the state's only Drug Court - which helps offenders get off drugs outside of prison - offers the only sentence that will change their behaviour.

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Dorothy R. Cook 's insight:

Drug Court with help for addiction recovery would be a great thing world wide


 

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ReGenUC's curator insight, March 12, 2015 6:35 PM

The Drug Court is certainly an initiative worth expanding, but we'd suggest it is not the 'only' option for people whose offending is linked to their AOD use. Our Torque program is one example of other effective interventions: http://www.regen.org.au/regen-in-media/573-torquetwt. You can see the Drug Court  evaluation report here: http://sco.lt/6XpDaT.  Our response to this article is here: http://www.regen.org.au/media-releases/581-drugcourtevaluation

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Former Lorain County juvenile magistrate gets prison for downloading nearly 100,000 child-pornography files

Former Lorain County juvenile magistrate gets prison for downloading nearly 100,000 child-pornography files | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
Former Lorain County Juvenile Court Magistrate James Paterson was sentenced Friday to eight years in prison for downloading nearly 100,000 child pornography files.

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Single mum gets child back from caretaker who 'adopted' the girl

Single mum gets child back from caretaker who 'adopted' the girl | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
AsiaOne Malaysia News - The court, presided by magistrate L. Umma Devi, also gave Lee's mother, 50-year-old Sia Bee Bit, joint custody of the child. -The Star/ANN Read more

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Magistrate restores the custody of a child back to the biological Mother, again Magistrate Court is for more than just Evictions.

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Besigye to appear at Nakawa court tomorrow

Besigye to appear at Nakawa court tomorrow | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
Incarcerated opposition leader Kizza Besigye will appear at Nakawa Chief Magistrates Court tomorrow morning, according to FDC sources. The Uganda Judiciary in a message today said Besigye’s case is still in the Chief Magistrate Court and that once investigation is done, the file shall be forwarded to High Court for trail. Besigye who is currently […]

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Oppostioned to jail. 

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Meth contamination growing problem for WA homeowners, landlords

Meth contamination growing problem for WA homeowners, landlords | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
Methamphetamine testing has revealed an alarming number of homes are contaminated with drug residue.

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The latest example of uncritical media coverage providing free marketing opportunities for businesses seeking to create (and exploit) fear. It's puzzling that such coverage is still occurring, given the recent release of a NZ Govt report that such claims of harm to residents from 'meth contamination' are baseless: http://sco.lt/6lhhC5. The impacts of this sort of reporting is something we've been talking about for a couple of years:  http://sco.lt/5aHsnJ

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Proposed Amendments To Supplemental Probate Court Rule 412 ...

Proposed Amendments To Supplemental Probate Court Rule 412 ... | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
Amendments to Supplemental Probate Court Rule 412, which currently provides the method by which a child support judgment.

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What to know BEFORE you step into Probate court–Rules for attys ...

What to know BEFORE you step into Probate court–Rules for attys ... | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
Before you step into Probate Court know the Probate Act regarding disabled adults. Read it thoroughly. Know who and “interested party” is, who needs to be served. Find all the adult siblings, children and parents, or if none, ...

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Twitter / NC9SpotNews: Probate Court No. 2 is holding ...

Probate Court No. 2 is holding a Guardianship Conference for Social Workers and Attorneys. http://t.co/EhezPVDgLz

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Proposed Amendments To Supplemental Probate Court Rule 412 ...

Proposed Amendments To Supplemental Probate Court Rule 412 ... | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it
Amendments to Supplemental Probate Court Rule 412, which currently provides the method by which a child support judgment.

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Response filed by D. Cook to the some how court appt Atty motion to withdraw

Response filed by D. Cook to the some how court appt Atty motion to withdraw | LANDLORD & Tenant Abused, Misused and even some murdered In unusual ways with the help of their connections | Scoop.it

Attorney Hope Connie filed a motion with Edgecombe County North Carolina Juvenile District Court Child Custody case to withdraw from being Dorothy Cook court appointments noted attorney which Dorothy Cook had no knowledge of how she became her court appointed attorney as the procedures required had not been followed as there was not a financial disclosure done to even verify is she a qualified for court appointed attorney at any time during the custody case. The attorney agreed with Dorothy Cook that she was not effective counsel for her Child Custody case but when filing Motion to withdraw as court appointed attorney for Respondent Dorothy Cook Child Custody Case that is not what it states in content. But Dorothy Cook , Responded by filing her Response/Cross Motion filed April 4,2017 in the Edgecombe County Clerk of Court Office Tarboro,NC the same date the Attorney Hope Connie Motion to Withdraw was on calendar to be heard. The proper parties of the Child Custody Case was served copy of said Motion filed by Dorothy Cook as response to Atty Hope Connie Motion to with draw from being court appointed attorney. The judge Beth Freshwater Smith was the presiding judge. Judge Beth Freshwater Smith did make finding decisipn being to grant Attorney Hope Connie to withdraw from being court appointed attorney for Dorothy Cook. The attorney motion was granted. Then the Judge Beth Freshwater Smith court appoint attorney Delores Faison to be Dorothy Cook court appointed attorney which is the attorney for EC DSS named on the Nonsecure Custody Order that removed custody of her daughter from her and Dorothy Cook knew this and there was no way the same EC DSS attorney that removed her daughter custody from her for non factual reasons was going to help her get her back there was no way this was going to happen then Attorney for EC DSS said to the judge she could not take the case because It was Conflict of Interest and that is when Dorothy Cook said the EC DSS was not going to take her daughter and then be her lawyer to help get her back to she could do better than that that was not going to happen. The EC DSS attorney requested that the presiding Judge assign Dorothy Cook and Guardian Ad Litem because a Judge In Wilson County District Court in 2011 had found Dorothy Cook mentally ill and the judge denied that but did say to Dorothy Cook that if she wanted Legal Rep again with her Child Custody case all she had to do was ask and one would be assigned to legal rep her. Dorothy Cook asked BT was declined legal rep from May,2017 to September,2017. Which Attorney Hope Connie had told Dorothy Cook she could speak only for Adjudication Hearing which was May,2017 the next Custody Hearing after the Attorney Hope Connie motion to be withdrawn from the case was granted. For the Adjudication Hearing Dorothy Cook did as the previous custody hearing Judge Beth Freshwater Smith instructed and requested to be appointed legal rep for the custody case and the Judge said No among other sarcastic things. Therefore the Adjudication was a mock the judge reviews evidence that proved the Nash DSS Family Accessment had been tampered with and stated he did not care.Among other things was allowed to be done that was not within the procedures of court or the law by EC DSS and its witnesses also. There is evidence that is chosen to reference back to for exact wording and details. The Respondent Dorothy Cook Response, and Cross Motion filed April 4,2017 is more than ,19 nineteen pages in length. 

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Wv public defender jury instructions federal court


Download Wv public defender jury instructions federal court:
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 West Virginia Public Defender Services we lcomes any and all corrections and suggestions regarding this Manual. 1. WV Criminal Jury Instructions Sixth Edition *:
 The following summary of the federal criminal process is intended to Federal Federal Public Defender Public tween the state and federal courts that we
 West Virginia; See West Virginia courts and search free public court records. Federal civil courts have records on business and personal Public Defender
 JURY INSTRUCTIONS FOR THE DISTRICT COURTS one of the founding fathers of the Judicial Committee on Model Jury Instructions Assistant Federal Public Defender

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Procedure laid down under N I Act for trial of 138 cases and Supreme Courts recent directions

Introduction: Indian Banks Association filed a PIL in Supreme court for issuance of directions to all courts in the country for mandatory compliance of Section 143 of Negotiable Instruments Act, 1881(Referred as NI Act) read with provisions of Section 261 -265 of Code of Criminal Procedure and f...

Introduction:

Indian Banks Association filed a PIL in Supreme court for issuance of directions to all courts in the country for mandatory compliance of Section 143 of Negotiable Instruments Act, 1881(Referred as NI Act) read with provisions of Section 261 -265 of Code of Criminal Procedure and for framing procedure to be followed uniformly by all courts for speedy and expeditious disposal of 138 cases. A bench consisting of Justices K S Radhakrishnan and Vikramjit Sen delivered a judgment in the said PIL giving directions to all criminal courts to follow summary trial procedure in 138 cases as mentioned in its judgment.

For better understanding of the procedure laid down by the Apex court, it is necessary to refresh the memory of the readers about the ingredients of offence u/s 138 of NI Act and procedure laid down for filing of complaints under the NI Act.

When an offence under the Act is deemed to have been committed?

An offence under the NI Act shall be deemed to have been committed, if the following conditions are satisfied (Section 138):

- Cheque must have been drawn  by the drawer in favour of a payee on his bank account for payment of a legally enforceable debt either in full or partly

- Cheque must have been  returned by the Banker to the payee or holder in due course due to insufficient balance  in the account of the drawer or it exceeds the arrangement  he  had with the bank,

Proviso requires fulfillment following additional conditions

a. Cheque must be presented within its validity period.

b. Written Notice must be given demanding payment of the cheque amount within 15 days from the date of receipt of notice. Such notice must be issued within 30 days from  the date of receipt of  intimation of dishonour memo from bank and

c. drawer fails to pay dishonored cheque amount within 15 days from the date of receipt of the notice

When Cause of action arises?

Cause of action arises only on failure of the drawer to pay demanded sum within the notice period and on expiry of notice period.

What is the Procedure for filing a complaint?

Let us now see the procedure mandated by the NI, Act for filing a complaint for prosecution of the accused. Complaint u/s 138 of NI, Act has to be filed within 30 days from the date of cause of action i.e. not before expiry of notice period nor after 30 days from the date of cause of action. The Apex court in the case of   MSR Leathers V S planniappan & Anr, reversed its earlier judgment in Sadanandan Bhadran v. Madhavan Sunil Kumara and held that a payee or holder of a cheque can now issue a statutory notice to the drawer each time the cheque is dishonoured on subsequent presentations and institute proceedings on the basis of a second or successive statutory notice as well. Thus there is a trend in recent judgments of Supreme Court in interpreting the law relating to Cheque bouncing cases more in favour of the complainant. Similarly other recent judgments expressed a view that strict interpretation should not help dishonest drawers of cheque.

Cognizance of offence:

Section 142 of Act starts with “Notwithstanding any thing contained in Code of Criminal Procedure, 1973” and mandates that no court shall take cognizance of the offence unless a complaint in writing is given by the payee or holder in due course as the case may be and such complaint has to be made within one month from the date of cause of action.

The effect of this non obstante clause is that NI Act overrides the provisions of CrPC to the extent as stated in the NI Act. This section also permits belated complaints filed after prescribed period provided the complainant satisfies the court with sufficient grounds for late filing.

Summary Trial:

Section 143 permits summary trial and it also starts with a non obstante clause. The contents can be summarized as follows:

a. It gives power to judicial magistrate of First class or a Metropolitan Magistrate to try 138 cases summarily.

b. It specifies that provisions of Section 262- 265 of CrPC shall apply, as far as may be, to summary trials. In other words discretion has been given to the Magistrate to apply or not to apply provisions of CrPC depending on the facts of the case. However in practice it is not exercised.

c. Trial shall be conducted from day to day until its conclusion, unless the Court finds justifiable reasons for the adjournment of the trial beyond the following day. Courts must record reasons in writing for adjourning to a later date. Further courts shall make an endeavor to conclude the trial within 6 months.

Mode of service of summons:

Section 144 deals with mode of service of summons on the accused. It specifies that:

a. Summons may be served at the place where the accused or witness ordinarily resides or carries on its business or personally works for gain.

b. Summons can be served by speed post or such courier service authorised by the court of sessions and in case of refusal/receipt by any authorized person, court may declare it is duly served.

Evidence on affidavit:

Section 145 provides that complainant can give evidence on affidavit. Even though the NI act specifically provides for this, some Magistrates mechanically follow strict compliance of the provisions of section 261- 265 of CrPC. This is one of the main causes for abnormal delay in completion of trial. The complainant is made to appear twice at the pre-summoning stage and post summoning stage for cross examination or re-examination which really does not serve any meaningful purpose in 138 cases but contributes to the delay in the conclusion of trial. It is the accused who takes the maximum benefit out of such procedural delays.

Conclusions of Supreme Court in “Indian Banks Association Vs Union of India”

After referring the objects of Section 138 of NI Act, Section 262- 265 of CrPC and its past judgments in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83, and Radhey Shyam Garg v. Naresh KumarGupta (2009) 13 SCC 201 on interpretation of Section 145 of NI, Act, it has drawn the following conclusions at Para 16 of the judgment:

a. Evidence by way of an affidavit can be given and complainant is not required to examine himself twice i.e. once after filing the complaint and another time after summoning of the accused.

b. There is no necessity to recall and re- examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled.

c. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence.

Procedure framed by the Supreme Court:

The Apex Court appreciating  the efforts of Bombay and Kolkata high courts for speedy disposal of 138 cases, finally laid down the following procedure to be observed by all criminal courts in the country for speedy and expeditious disposal of 138 cases. The essence of these procedures can be summarized as follows:

a. Metropolitan Magistrate/Judicial Magistrate e (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint. If the complaint is accompanied by the affidavit and the documents are found in order, must take cognizance of the offence and direct issuance of summons on the same day.

b. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date is fixed. If the summons is received back un-served, immediate follow up action be taken.

c. Court may indicate in the summon itself that if the accused makes an application for compounding of offences at the first hearing of the case, it may pass appropriate orders at the earliest.

d. Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial. On the day of appearance, Court may ask him to take notice under Section 251Cr.P.C to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re- calling a witness for cross-examination.

e. The Court concerned must ensure that examination-in-chief, cross- examination and re-examination of the complainant are conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court.

Conclusion: It is hoped that Apex Court’s judgment will bring uniformity in the procedure to be observed by all criminal courts in the country in NI Act cases. In view of this judgment, all Magisterial courts must compel the accused to enter his plea of defence and close all avenues open till now for prolonging the proceedings for a speedy and expeditious disposal of 138 cases.

G S Rao,

Consultant

Tags: Negotiable Instruments Act, 2013,

Disclaimer: This article contains interpretation of the Act and personal views of the author are based on such interpretation. Readers are advised either to cross check the views of the author with the Act or seek the expert’s views if they want to rely on contents of this article.

http://www.indiataxhub.com/procedure-laid-down-under-n-i-act-for-trial-of-138-cases-and-supreme-courts-recent-directions/
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ReGenUC's curator insight, September 13, 2016 11:06 PM

We'd urge caution here. As well as the programs Ms Bowles has considered, there's also plenty of research evidence demonstrating that forced treatment programs are not more effective than voluntary ones and that they can, in some instances, cause additional harm.