Unlawful detained (eviction) action in Tennessee

Unlawful detained (eviction) action: "In an unlawful detainer action, a tenant has certain defenses, such as 'constructive eviction' , default by the landlord of the implied warranty of habitability, or a 'retaliatory eviction', which occurs when the landlord takes an action against a tenant for trying to exercise rights as a tenant (such as informing government agencies of code violations or complaining to the landlord regarding repairs that must be made to maintain the rental property in habitable condition)."

This site gives a good summary definition of what may happen if you are being evicted from your home. Though your obligations as a tenant are largely contractual, the process is heavily regulated by the Tennessee Landlord Tenant Act.

Revocable Trusts in Tennessee

The revocable trust has become in Tennessee, as in many jurisdictions, the functional equivalent to a will in estate planning. It is, in effect, a will substitute with its primary goal as one of determining the persons to receive the trust property upon the trustor's death.

The rules for interpreting the disposition of one's property, then, are virtually the same, if not absolutely the same, as whether the person has chosen a will or a living (revocable) trust as that person's primary estate planning instrument.

Tennessee law (TCA 35-15-601) provides that the capacity required to form a trust is the same as that required to create a will and that a living trust is for the most part, the equivalent of the will.

Also, trusts are more flexible than wills and allow for the mention and reference to wills, codicils, and life insurance policies as part of its custody and control. Of course, the most obvious benefit is the ease by which it may be revoked or amended, as compared to the more formal requirements of the last will and testament.

Detainer Action

Detainer Action: "A landlord or apartment complex brings a detainer action to evict a tenant who has not paid the rent. The landlord usually gets a judgment for “possession” of the apartment plus back rent and attorney fees. The tenant has ten days in which to file an appeal. After ten days, if no appeal is filed, the landlord can obtain a writ of possession, which is a court order directing the sheriff to forcibly remove the tenant and his belongings from the property. In practice, the sheriff is present to supply the force of law, but the landlord supplies the manpower to move the personal belongings. The belongings are usually placed at the nearest public road.

The tenant is allowed a “reasonable” amount of time to collect his belongings. Depending on the circumstances, the “reasonable” amount of time can be as short as 24 hours to as long as 24 days!"

This is what happens when a detainer warrant is filed with the court.

What is a bailment?

We just had a case where the concept of bailment was a central issue. Essentially, a bailment is where personal property is delivered to another with an agreement that the same personal property will later be returned to the owner. The bailor is the person who delivers the property and the bailee is the one who accepts delivery. Bailment is a contract and its terms may be either express or implied from the conduct of the parties.

Crucial to the legality of the bailment is the delivery. The bailor must give over exclusive control of the property to the bailee, so that the bailee exercises custody and control of the property. The bailee then becomes potentially liable to the bailor if the property either is not returned, or returned damaged.

What is a discharge in Bankruptcy?

U.S. Courts Bankruptcy Basics Discharge: "A bankruptcy discharge releases the debtor from personal liability for certain specified types of debts. In other words, the debtor is no longer legally required to pay any debts that are discharged. The discharge is a permanent order prohibiting the creditors of the debtor from taking any form of collection action on discharged debts, including legal action and communications with the debtor, such as telephone calls, letters, and personal contacts.
Although a debtor is not personally liable for discharged debts, a valid lien (i.e., a charge upon specific property to secure payment of a debt) that has not been avoided (i.e., made unenforceable) in the bankruptcy case will remain after the bankruptcy case. Therefore, a secured creditor may enforce the lien to recover the property secured by the lien."

This comes right from the bankruptcy court page and fairly self explanatory.

Contesting a will in Tennessee

Invalidating a will because of undue influence is not a simple undertaking. While undue influence may be proved by either circumstantial of direct evidence, direct evidence is rarely available. Generally, the contestant must not only establish that their existed between the testator and the named executor a confidential or fiduciary relationship, but also that certain suspicious circumstances surrounding the transaction, such that the executor or beneficiary exercised dominion or control over the testator.

Some of the circumstances cited by courts include: the testator's physical or mental deterioration, the beneficiary's active involvement in procuring the will, secrecy concerning the will's existence, the testator's advanced age, lack of independent advice concerning drafting the will, and any discrepancies between the will and the testator's express intentions.

One of the responsibilities of a will drafter is to anticipate as best as possible any potential contests and to plan accordingly.

Tennessee's Foster Care

Tennessee's Foster Care Review Law was enacted to protect children from unnecessary separation from parents and from needless prolonged placement in foster care. It was also enacted to provide a mechanism to monitor the care of children in foster care to insure that a permanent plan for the child will be achieved if possible. T.C.A. § 37-2-401 et seq.

Foster care is defined in T.C.A. § 37-2-402(5) as:

The temporary placement of a child in the custody of the Department of Human Services or any agency, institution, or home whether public or private for care outside the home of a parent or relative (by blood or marriage) of the child whether such placement is by court order, voluntary placement agreement, surrender of parental rights, or otherwise.

An agency is required, within thirty (30) days of foster care placement, to prepare a plan for each child in its foster care. T.C.A. § 37-2-403. This plan must include a goal for the child and a statement of responsibilities between the parents, the agency and the case worker of the agency.

In addition to the plan for each child, the agency must submit a report for each child in its foster care to the appropriate court or advisory review board on its progress in achieving the goals in the plan. T.C.A. § 37-2-404. Such reports are to be made within six (6) months of foster care placement and every six (6) months thereafter for as long as the child remains in foster care.

"Court" is defined by the statute as "the juvenile court having jurisdiction over the person of the child, or if no juvenile court has jurisdiction over the child then the juvenile court in the county in which the child resides." T.C.A. § 37-2-402(3). "Board" is defined as "an adversary review board appointed by a juvenile court judge, juvenile court judges or the department of human services." T.C.A. § 37-2-402(2).

What is Contempt of Court?

Attorney Cynthia Bohn provides a great definition to this simple question. What is Contempt of Court? - Law Firm Cynthia J. Bohn & Associates Attorneys Nashville, Tennessee: "Tennessee recognizes two types of contempt; CIVIL and CRIMINAL. There are two types of criminal contempt: Direct Criminal Contempt is a contemptuous act (such as cursing the judge) in the Court's presence, where the Court sees or hears the contempt, and may be punished summarily. Indirect Criminal Contempt is based upon conduct committed outside the Court's presence (for example failure to pay court ordered child support) and is punishable only after notice has been given to the offender and he or she has had the opportunity to respond to the charge at a hearing. Civil contempt is distinguished from criminal contempt by the character and purpose of the punishment imposed. The critical feature that determines whether the contempt is civil or criminal in nature is not when or whether you are physically required to set foot in jail, but whether you can avoid the sentence imposed or purge yourself of it by complying with the terms of the court's order. In criminal contempt punishment is imposed unconditionally and you cannot escape by purging yourself of the con- tempt. Punishment for civil contempt, on the other hand, is imposed to compel an act and usually for the benefit of your former spouse. In civil contempt it has often been said that the convicted person holds the keys to the jail in his own pocket."

I run into this most frequently when I represent child support clients. My best advice is similar to a DUI attorney initially declaring: "Don't drive drunk."; my advice is "Pay your child support." If things go wrong, though, give me a call.

Reaffirmation of debts in Bankruptcy

According to U.S. Courts Bankruptcy Basics Chapter 7: "Secured creditors may retain some rights to seize property securing an underlying debt even after a discharge is granted. Depending on individual circumstances, if a debtor wishes to keep certain secured property (such as an automobile), he or she may decide to 'reaffirm' the debt. A reaffirmation is an agreement between the debtor and the creditor that the debtor will remain liable and will pay all or a portion of the money owed, even though the debt would otherwise be discharged in the bankruptcy. In return, the creditor promises that it will not repossess or take back the automobile or other property so long as the debtor continues to pay the debt."

In a Chapter 7, this is frequently the best way for the debtor to retain his or her property.