THE MARK BAMBERGER CO., LLC

mark@bambergerlaw.com

Offices in Tipp City, West Chester, Spring Valley, and Enon, Ohio

In these troubling economic times, I have a lot of clients in my offices asking if filing a bankruptcy is their best option.  Whether it be a Chapter 7 petition for a total bankruptcy as a “fresh start”, a Chapter 13 petition for a personal reorganization plan, or a Chapter 11 for business reorganization, the choice is never easy.  So often I have clients who are embarrassed with themselves or just plain mad at the world for what has happened to them.  It is true that often they have no one but themselves to blame for bad decision making.  However, the vast majority of my cases involve job loss, medical problems, or both.  These are conditions out of people’s control.  In these cases Bankruptcy is a viable and government-supported option.

I tell every client who discusses options with me that the reason bankruptcy is in federal court and not state courts is that it is an enumerated right granted to the federal government in our Constitution.   In fact, the concept of bankruptcy goes back much further than that in democratic history, but I will leave the history lesson for another time.  The bottom line is this – in some cases bankruptcy makes a great deal of sense for people to allow them the ability to “start over”.  Working in bankruptcy law is much easier ethically these days since the 2005 amendments to the bankruptcy code which made it much harder for people to file petitions just to escape paying what they owe.  There was abuse in the system, but not much anymore.  Now the bar to passing a “means test” is much higher and limits the bankruptcy option to those who truly need and deserve the assistance.

I have written in the past about the connections between bankruptcy and other aspects of my practice, namely civil litigation and criminal defense.  Usually when things start going bad for families or individuals, it goes there fast.  I have defended someone in a criminal case or filed a civil complaint for them, only to see them on my doorstep months later in dire financial shape and in need of bankruptcy counseling.  Again, for some, this option makes sense.  However, I take great pride in talking some clients out of bankruptcy when I think there are other options.  Bankruptcy is still serious business, although the stigma has been taken off it – to a large extent.   For some, I can arrange settlement offers to creditors at 20-30 cents on the dollar, allowing those clients to pay their debt and move on, without a bankruptcy.  Again, it is a tool provided by the federal government to help people, not cast them into an abyss of financial ruination.

MJB, Tipp City, revised 3/12
http://bambergerlaw.com

Mark J. Bamberger, Esq., Owner/Attorney at Law

THE MARK BAMBERGER CO., LLC

Offices in Tipp City and Enon (both near Dayton) and West Chester (near Cincinnati), Ohio

As is common in many states, there are generally three ways to end a marriage in Ohio.  From easiest (and often least expensive) to often ugliest and most costly, they are: (1) non-contested divorce; (2) dissolution; and (3) contested divorce.  In each case, the same legal forms are indicated and are determined by county.  One of the biggest reasons to retain legal counsel in any of these situations in Ohio is that each county is different and some counties are very different indeed.  The wrong forms or formats can add many months and many thousands of dollars to the end of a marriage.  Even with trained legal counsel, this process can be time-intensive and tricky.  Though people legally can “do it themselves” (termed “pro se”), it is often best to pay the money to get it done efficiently, completely, and with finality. This is especially true where minor children are involved.  Courts often have little patience for pro se litigants making mistakes and “ignorance is never an excuse under the law”.

Without children, in most Ohio counties the necessary documents include: (1) the complaint for divorce; and (2) the separation agreement.  With minor children, add on several additional forms and a shared parenting agreement.  Whether custody will be full, shared, or joint, there are details to be completed.

Non-Contested Divorce

A non-contested divorce is just that; not contested.  In this form, the represented Plaintiff fills out the preliminary paperwork and then serves the forms and prepared documents upon the Defendant. Once service is perfected, the Defendant has three options: (1) contest or fight the complaint; (2) sign off and not contest; or (3) do nothing.  In the latter two cases, the court will allow the allotted 28-day answer period; then schedule the case for a final, non-contested hearing.  In that case, the Defendant need not even appear at the final hearing.  The Plaintiff appears with a witness to testify and attest that: (1) they know the Plaintiff; (2) the Plaintiff has resided in Ohio at least 180 days; (3) the Plaintiff has resided in the subject county for at least 90 days; and (4) the Plaintiff and Defendant meet the cause of action claim used for the divorce (e.g., incompatibility, residing apart for at least one contiguous year, gross neglect, etc.).  Non-contested divorces can be the fastest and least expensive option for ending a marriage in Ohio; as long as they stay non-contested.

Dissolution

A dissolution happens when both Plaintiff and Defendant decide on everything and decide those terms together and in (relative) harmony.  One attorney handles the paperwork for both parties, but can only represent one of the parties.  The other party is dealt with honestly and openly, but must represent him- or her-self pro se.  Once the dissolution is approved by the court, both parties are responsible for what they signed; represented or not.  Dissolutions can be as fast and inexpensive as a non-contested divorce.  The concern with dissolutions is that if at any point there is divergence of wants and desires, the case can quickly become contested (and contentious).  At that point, it is the ethical obligation of the attorney to end negotiations, tell the unrepresented party that the case has become contested, and recommend he or she retain private legal counsel of their own.

Contested Divorce

Finally, a contested divorce is just what you would expect; a fight!  These can become ugly; with children used as pawns in a nasty chess game and the two sides fighting over the silverware.

These three pathways are not mutually exclusive.  In other words, a non-contested divorce or dissolution can become contested and, in rare cases, a contested situation can end quietly and equitably.  The bottom line is this: the best thing a divorce attorney can do is to evaluate the situation and help his or her client decide which path to take for maximum gain and minimum pain in a situation usually defined by pain and heartache.

Mark J. Bamberger, Esq., Owner and Attorney at Law

The Mark Bamberger Co., LLC

Offices in Tipp City (Dayton), West Chester, and Enon, Ohio

To divorce or not to divorce; that is not only the question, but often the life choice. The painful and agonizing decision to separate one’s life from another that they once loved, if not cherished, can be the worst of the worst of times.  Even in today’s challenged economy, the decision to get a dissolution or divorce is often the hardest decision someone has to make in their entire lives.

Our parents used to say that we “stayed together for the kids”.  However, our culture came to realize that two functional homesteads were often better for the kids than one dysfunctional one.  Although separation is a traumatic and very complex condition, there are additional legal considerations that make it even more complex.  It is my job as their legal “counselor” to help them weigh all the options.  The word “counselor” is apt since in those trying times I seem to be more emotional support mechanism than attorney.

In many cases, the other party in the divorce is represented by counsel, which makes my job a lot easier. It is usually far easier and more efficient to deal with another professional and clear-thinking attorney to get a divorce completed.  In some nightmarish scenarios, the other side represents themselves “pro-se” (by themselves).  This can be painful since the other side is often too arrogant, too prideful, and/or too poor to retain counsel. There’s a reason we go to law school and have to pass a 20-hour bar exam!

So many times, we at The Mark Bamberger Co., LLC deal with divorce affiliated with bankruptcy, or civil litigation, or even criminal defense.  We try to counsel those retaining us for their divorce representation that all these other myriad issues may also come into play.  Often, filing a bankruptcy is the best way to get out from under staggering debt that could haunt each of the divorcing parties and their progeny for a generation to come.  We tell our clients that if they file bankruptcy on joint debts (those held jointly between both spouses), the creditors will visit their harassment and court actions on the other soon-to-be-ex spouse.  Not all of our clients are upset at that prospect.  In many situations, bankruptcy (especially under Chapter 7 of the bankruptcy code) allows a “new start”.

Some of our clients favor a dissolution; where both parties sit down and decide issues like parental custody, parental visitation, child and/or spousal support, and personal and real property separation.  This can be a civil, reasonably fast, and inexpensive way to divorce in Ohio and most other jurisdictions.  Others will attempt a non-contested divorce, where my staff prepares the documents and terms for our client.  Here, we file the necessary materials with the court and perfect service to the Defendant (other spouse) to make sure they received the documents.  The Defendant then has 28 days (in reality much more) to either do nothing, agree, or contest the terms.  If they contest, it becomes a contested divorce, which needless to say is the most expensive, time-consuming, and often painful option.  We have had many cases that began non-contested or a dissolution, then became contested (read “ugly”).  Not often do they go the other way, but it can happen,

The bottom line is this; divorce is complicated; emotionally, financially, and legally.  We at The Mark Bamberger Co., LLC try to counsel our clients about the inter-disciplinary aspects of divorce and help them navigate through some of the most traumatic and painful months of their lives.  It is never easy, but usually the sun does shine after the rainfall of tears has stopped.

MJB  4/11

** This article was found in the Buckeye Lake Beacon. Mark Bamberger, an attorney with offices in Tipp City  represents and serves Ohio’s BARK organization as it’s legal council.

KIRKERSVILLE – Nearly 100 people filled Kirkersville Town Hall Sunday evening to express concerns about the Licking County Animal Shelter. They allege unsanitary conditions and improper animal euthanization. Licking County Commissioners and shelter warden, however, strongly disagree.

Many of the Sunday meeting attendees were there in response to a YouTube video, which BARK Animal Rescue activist Bonnie Mansfield posted online. The video is a collection of security camera footage that depicts Licking County Animal Shelter Warden Jon Luzio dragging dogs by a catchpole to a gas chamber and dragging a dog’s frozen carcass along the ground to an incinerator. The video has been viewed nearly 5,000 times as of Wednesday. Mansfield said none of the video’s footage was altered.

“We want the gas chamber dismantled,” said Mansfield, who was one the Sunday meeting hosts. She said people also want more shelter operation transparency, including live video feeds at all times within the shelter.

“This is a very contentious issue,” attorney Mark Bamberger, told the crowd. He was clear, however, that there is no evidence the shelter has broken any laws. Any changes at the shelter would likely be achieved through political means as opposed to legal. He suggested concerned people contact Licking County Commissioners and other government representatives.

Mansfield said she’s been complaining to the commissioners for nine years. “Our complaints fall on deaf ears,” she said. Regarding the dogs shown being dragged in the video, “I’m not saying it’s illegal, I’m saying it’s inhumane!”

Johnstown Second Chance Humane Society President Paula Evans said the commissioners told her they wouldn’t micromanage the facility and Evans said the commissioners won’t respond to emails regarding the shelter. She said Luzio’s method of determining if a dog is aggressive is provocative and animals are placed into a gas chamber soon after being labeled as aggressive. “No animal deserves the kind of treatment they receive in there,” said Evans. She said animals are euthanized after being held for three days and office hours are not convenient for people wanting to adopt pets. Evans said multiple animals enter the gas chamber at once and Mansfield said the shelter is gassing elderly dogs.

Mansfield said she believes the shelter favors the gas chamber over lethal injection because the gas chamber is less hassle for the shelter staff. Tuesday, she outlined the changes she’d like to see at the shelter. “I would immediately start with all animals in the shelter being listed on the website with pictures,” she said. If someone is missing an animal, it should be easily found there. “I would start an aggressive adoption program, with hours open to the public on Sundays and evenings and beg the public to adopt these animals, and I would make it affordable!” Mansfield would insist animals be spayed or neutered before going to homes in most cases. Currently, she said an animal being adopted today wouldn’t be altered until May or June. “That’s three or four months!” said Mansfield. Cats and dogs’ gestation period is roughly two months. “I would make sure the care the animals receive is humane and consistent,” she said. Currently, Mansfield said animals aren’t vaccinated upon intake if “poundkeeper” Tina Crist isn’t there. “Sick animals are treated by a vet if Tina isn’t there,” she said.

“I would cater to rescue groups who offer help and I would be glad to get it!” said Mansfield. “We all know you can’t save them all and for the ones who are aggressive, truly aggressive, and a risk to the public should be euthanized; I would make sure they are euthanized humanely.”

Mansfield urged citizens to work for change. “You probably think I would say spay or neuter, but I think that’s a given,” she said. There are always going to be irresponsible pet owners that don’t spay or neuter. “I say you should know who you’re electing and make them accountable. Our county commissioners are not only irresponsible with the dog pound, but they are also irresponsible with other county departments,” said Mansfield.

The Licking County Commissioners strongly disagree with most statements made about them and the shelter.

“We’ve listened thoughtfully to any concerns,” said Commissioner Tim Bubb. “We continue to manage an excellent shelter.”

Commissioner Doug Smith said the commissioners have not ignored comments about the shelter. “I’ve read each and every email,” he said. Smith is, however, selective about the emails he answers because he doesn’t want to leave an email trail that could be altered. He said emails are archived. He prefers to meet with people face to face or phone them. Smith said he makes frequent unannounced visits to the shelter and nothing he’s ever seen has shocked him.

Bubb said he was aware of a complaint of excessive fecal matter found in a cage one morning. He said many of the dogs admitted are starving and eat a great deal. “They’re eating constantly. Sure, there’s a mess in the morning,” he said, but the cage is cleaned immediately. Bubb said the shelter admitted 150 animals during January. Of that total, 14 were reunited with owners, 47 were adopted, 50 were rescued, and 18 were euthanized. “That’s an extremely low number (euthanized),” said Bubb. “We’re among the lowest in the state. We find homes for most of these dogs.”

“I hope we wouldn’t micromanage any of our departments,” said Smith.

“We hire good people,” said Bubb. “We trust our people to do a good job.” Bubb said the You- Tube video takes random security camera footage and repackages it to further an agenda. He said Luzio generally uses a cart to take carcasses to the incinerator and the cart was broken at the time; Luzio had back pain and couldn’t carry the carcass. He said that’s been addressed and acknowledged that it appeared insensitive.

“Parts of the video are shocking, but it’s not in the context of all circumstances,” said Smith. “If there’s something illegal going on, we want to know about it.”

Luzio said the shelter accepts more than 4,000 animals per year and is forced to euthanize those not adopted. He said the Licking County Animal Shelter uses a sodium pentobarbital injection and bottled carbon monoxide, both of which the American Veterinarians Association and the Humane Society of the United States approves. Surrounding counties also use carbon monoxide. Young and smaller animals receive injections. Luzio said other animals receive a tranquilizing drug called acepromazine 20 minutes before the gas chamber, which is not legally required. He said the carbon monoxide is painless but the animals will “vocalize” as a reaction to the brain shutting down, not because of pain. The process takes about 45 to 60 seconds, said Luzio, who added that injecting vicious dogs is potentially dangerous and painful to the dog and risky for the person injecting the drug. “When it doesn’t go well, it’s a disaster,” he said.

Luzio defended his method for determining a dog’s aggression and said he can legally refuse to release an aggressive dog, even if someone plans to rescue it. “If they’re dangerous, we can’t allow them to go out.” He said the law only requires him to hold dogs for three days but he’ll hold adoptable dogs for 30 days.

Luzio said the dogs shown in the video being led to the gas chamber by catchpole previously bit one or more people. “Those were aggressive dogs,” he said.

Mark Bamberger can be contacted regarding this case at (513) 644-8181

It’s great to win a case!  Whatever type of case it is, it is great to win.  The clients are happy, justice is served, and The Mark Bamberger Co., LLC gets paid.  What’s wrong with this statement?  Should payment be dependent on whether an attorney wins the case?  In almost all cases the answer is “no”.  We put tremendous passion and effort into our cases.  Many times we win and there are toasts of whiskey all around at TMBC.  However, the losses are often twice as painful and personal as the victories are sweet.  The ultimate determination of the court either in our clients’ favor or in opposition does not change the time we spent or the passion we exerted toward the case.

In these difficult economic times, some clients weigh their commitment to paying their bill on the outcome.  A recent article in the Dayton Bar Association’s Bar Briefs recommended that attorneys bill by the quality of their work, not the time spent.  In this business owner/attorney’s opinion, that feeds right into this vice.  We as legal counsel work hard for our clients, at least we ethical ones do.  We bring years to decades of experience and expertise to the table for our clients.  Our clients must realize that the outcome of their case does not change their admitted commitment to pay us for our time and effort.

We at The Mark Bamberger Co., LLC have always tried to do a consistently high level of pro bono (unpaid) work for those in need.  I do a number of divorces and other cases per year for people who cannot otherwise pay, but are in dire need of legal assistance.  It should be noted that there is a difference between pro bono work and what I term “involuntary pro bono work” (a.k.a. working your butt off and not getting paid).  When I sign an agreement with a client, I expect to do my level best to represent them as they commit to do their level best to be open and honest with me about themselves and their case and further to pay their bill.  That sounds fair…right?

Mark J. Bamberger, Esq., Attorney at Law/Owner

THE MARK BAMBERGER CO., LLC

Offices in Tipp City (Dayton), West Chester, and Enon

Clients walk into the offices of The Mark Bamberger Company with some dreadful problems.  One of the more common is the threat or ongoing nightmare of a foreclosure.  In some cases, their lender is saying it is right on the horizon.  In more cases foreclosure has been commenced.  What is important to know is that the filing of a foreclosure complaint is only the first step of a long process; ending in a sheriff’s auction sale of the property out from under my clients.  This process can take between three and 18 months; depending on how vigorously the client fights, how clever their attorney is in stalling for time or negotiating a refinance or loan modification, or how badly the lender really wants the property.

The Automatic Stay

Often I am asked how foreclosure ties into bankruptcy.  Whether the bankruptcy is under Chapter 7 or Chapter 13, the answer is roughly the same.  Filing bankruptcy puts ALL pending or ongoing legal action “on ice”.  This is legally termed the “automatic stay”.  The only way a creditor gets out of this is to wait out the discharge of the bankruptcy or move the bankruptcy court for relief from the automatic stay; which often takes about as long as the bankruptcy itself.

Never Surrender

Bankruptcy CAN be an efficient way to stop a foreclosure long enough to negotiate a deal with the lender.  Before the filing of a bankruptcy petition, the lender has all the power.  After filing the petition, the debtor gains some power since they can choose whether to keep or “retain” the property or give it up, called “surrender”.  Even if the debtor says they want to keep it; five minutes and an amendment to the petition can change the outcome.  What that means is that the lender gets the property; with all the debt and non-performing loan that goes with it.  They generally do not want that, no matter how nice the house is, since they are inheriting debt; plain and simple.

So much for mandated loan modification

Unfortunately, as has been reported on the national news, the major lenders took billions in federal bailout money; only to go back on their promises to make loan modification easier.  Sometimes they seem to be cutting of their nose to spite…my clients!  The bottom line is this – a bankruptcy can be used as leverage, but never guarantees success in a client keeping their home!

Mark J. Bamberger, Esq., Owner and Attorney at Law

The Mark Bamberger Co., LLC

Offices in Tipp City, West Chester, and Enon

Courtesy TippNewsDaily, I hauled my press-pass covered toches, and my good pal Dylan Maggard, South on 25-A and, following a short, terse exchange with the Vandalia Police Auxiliary, we parked in what I thought was the VIP/Media lot.

We learned that it was not when everyone around us, who were clearly defected ex-fighter pilots from the Eastern Bloc, threw us the hairy-eye. I’m not sure what it is about pasty 6’4″ bespectacled professionals from Tipp, but we have a hard time passing for fighter pilots.

A short black man in a T-shirt that vouched for his being both “Security” and “Staff” told us to leave: he did not know where media parking was, nor did he much care: “I don’t know where media parking is,” he said. “Nor do I much care.” When I protested, he cited Homeland Security concerns. I have become bored with that excuse for bossing people around–it seems to have replaced The Fire Code as a bureaucratic trump-card. It is not an improvement.

While walking back to my car, we spotted a cool building with an ironic sign on the front. I stopped to take a picture, grumbling to Dylan about how hot it was, how I thought the Air Show always sucked, how it was much better when–

Then the Blue Angels ripped up in a vertical climb from behind the tree-line, as low and close and startling as a Harvest Moon showing itself midday, blue and yellow and naked, like beasts from Ezekiel’s visions, eight engines roaring, moving in sync as though a single machine controlled by one hand. I was struck dumb: this was the sort of power that makes a man feel small; it is the sort of sight that makes an American stop and suffer awe at just what our civilization can accomplish.

I wasn’t sure what to say.

Dylan cleared his throat. “Well,” he said. “That was the money shot, wasn’t it?”

We left, without going further than the wrong parking lot. There was nothing more to see.

Mark J. Bamberger, Esq., Owner and Principal Attorney

The Mark Bamberger Co., LLC

Offices in Tipp City, West Chester, and Enon, Ohio

The Economy appears to be improving; at least that is what the numbers and news broadcasts relay.  However, many of our clients at The Mark Bamberger Company see people who continue to suffer pain.  As I related in a previous article, many experts report a second wave of foreclosures and resultant Chapter 7 and 13 bankruptcies due to a second expected bounce in some adjustable rate mortgages (see Second Wave of Bankruptcies at www.bambergerlaw.com).

Many of our clients are still either unemployed or severely under-employed.  Many of them continue to see mounting bills they cannot pay.  Home mortgage lenders seem to be “cutting off their nose to spite their face”, by taking billions in government bailouts; then openly imposing obstacles to mortgage modifications.  Additionally, finance charges and late-payment penalties are making creditor payments harder than ever.

What is the answer?  There is no standard answer for everyone; but with planning, families can avoid the pitfalls of the still-hindered economy.  Bankruptcy may be a good option; but before that decision is made, debtors should meet with their attorney; be it me or someone else, and do a global assessment of their financial situation.  Specific questions to ask, among many others, include:

1. Is my house safe from foreclosure or loss in a bankruptcy?  If my house is in foreclosure, how far in is it (from initial complaint through final sheriff’s sale)?
2. How much equity do I have in vehicles and other big-ticket real and personal property?
3. How much unsecured debt (e.g., credit cards, medical debts, and personal loans) can be discharged in my bankruptcy?
4. Can I afford to pay for a bankruptcy?  This is often easier than many think since they can be economical, paid off through monthly payment plans, and paid from the money not paid to unsecured debt during the bankruptcy period.

Above all, don’t panic; there are almost always options.  Empowerment comes from taking control, even if the situation appears dubious!

MJB  7/3/10