Among other things, a proper foreclosure’s involve three core conditions:

1.             real estate lien note executed by the mortgagor (borrower) at closing for the balance of the purchase price;

2.             deed of trust signed by the buyer at closing giving the mortgagee (lender or its successor(s)) a security interest in the property being purchased; and

3.             pertinent Texas statutory and case law. 

Generally, a foreclosure is proper if it complies with the procedure outlined in the deed of trust.  Texas law is relevant only where the deed of trust is silent on a mandatory statutory issue or where the deed of trust conflicts with Texas law.

To initiate a foreclosure the borrower must, among other things, default on a periodic payment required by the real estate lien note as described in the note and deed of trust.  The lender then has the option of accelerating the collection of the remaining balance of the note.  The entire amount of remaining indebtedness, not just the periodic payment in arrears, may then become immediately due and payable in full.  This is known as the acceleration clause.

If the collateral securing the note is the debtor’s residence, the lender may not accelerate the not immediately following default.  Instead, the lender must give the debtor at least a 20-day written notice (unless the deed of trust is on the FNMA form, then 30 days notice of default must be given) to cure the payments in arrears thereby reinstating the Note.  The notice must be sent by certified mail, return receipt requested.  This notice cannot be waived and is required in all instances.

The Fair Debt Collection Practices Act requires that a borrower be given 30 days to request and obtain verification of the debt.  The lender may give notice of default, accelerate the debt, and even post the property for foreclosure in less time, but the foreclosure sale itself should not be conducted until the 30-day debt verification period has expired and only then with proper statutory notice to the Debtor.  There is also an equivalent state statute (the “Texas Debt Collection Practices Act”) contained in Texas Finance Code Chapter 392.  Failure to provide verification of the debt when the borrower has requested it in writing has serious penalties under both laws.

If the debtor does not make the payments in default during the 20 or 30-day period, the lender may accelerate the debt by sending notice of the acceleration to the debtor.

If the collateral serves as the debtor’s residence, the lender must give the following notice via certified mail unless they are waived in the deed of trust:

1.             A demand notice for the installment in arrears and thereafter affording the debtor an opportunity to remedy the default;

2.             A clear and unequivocal notice of the lender’s intent to accelerate the debt after the debtor has been given a reasonable time to cure the installment in arrears;

3.             A final notice that acceleration has in fact occurred.

It has been held proper to combine the first notice concerning the default with the second one involving the intent to accelerate.

The trustee is the central character in the foreclosure process.  The trustee has the sole authority to sell the property and to convey title to a Buyer.  The debtor grants this authority to the trustee in the deed of trust.  Texas statutes restrict, to some degree, persons eligible to serve as trustees or substitute trustees.  Dual functions under the security agreement disqualify an individual to serve as a trustee.  Likewise, the person cannot be a debt collector.

Lenders may authorize a mortgage servicer to appoint a substitute trustee or trustees to serve under the deed of trust.  The name and street address of the substitute trustee or trustees must be disclosed on the appointments and in the notices timely posted and filed at the courthouse and sent to the debtor.

Conditions stated in the deed of trust for the appointment of a substitute trustee must be strictly followed.  Unless the deed of trust provides otherwise, a trustee or trustees need not formally resign before another is appointed.  If the original trustee has posted, filed and sent the required notices, the substitute trustee or trustees should postpone the sale. 

The sale may occur only on the first Tuesday of each month occurring 21 days after the new notices have been properly posted, filed and sent.  Generally, the sale is conducted at the courthouse steps.

The trustee is the only one who can conduct a valid sale.  However agents of the trustee may sign, post, file and send the notices. 

After notice has been posted, filed and sent and the required 21-day period has elapsed, the trustee may proceed with the sale on the first Tuesday of the following month anytime between 10:00 a.m. and 4:00 p.m., but within three hours after the time designated in the notices. 

A mortgage servicer has the same authority as a lender as long as these conditions are met:

1.             the lender grants the current mortgage servicer the administrative authority to act on its behalf in the servicing agreement;

2.             all notices, filings and postings preceding the foreclosure sale show that the mortgage servicer represents the mortgagee under the service agreement between the two; and

3.             the notices, postings and filings preceding the foreclosure contain the name and address of the mortgagee or the name and address of the mortgage servicer if the lender has granted the mortgage servicer the authority to service the mortgage.

As of May 20, 2009 a new federal statute impacts the possession date of rental property purchased at foreclosure.  If the foreclosure involves a federally related mortgage on a dwelling or residential property, the purchaser must give any bona fide tenant in possession at least 90 days notice to vacate.  The term bona fide tenant is defined as one who acquired the lease at an arms-length transaction where the rent is not substantially less than the fair market value for the area. 

Inadequacy of the consideration at a foreclosure sale can be grounds to have the sale set aside under federal bankruptcy laws.  If the sales price does not equal or exceed 70 percent of the property’s fair market value, the sale can be voided as a fraudulent transfer if the debtor files for bankruptcy within one year of the sale.

An action to set aside a sale must be initiated within four years.

If the debtor does attack the foreclosure sale under Texas law because of an irregularity, the attack most likely will be for damages and not to rescind.  To set aside the sale, the debtor first must repay or offer to redeem the property from the purchaser at the price brought at the foreclosure sale.  If the debtor was in possession of such resources, the foreclosure probably would not have occurred.

It is, therefore, imperative that one seeking to attack foreclosure do so “before” rather than “after” a sale to maximize probability of a good result.

In the worst case scenario banks actually work at odds within themselves, with one arm of the company foreclosing on the home while the other arm offers assistance to the homeowner.  This problem is occurring even among the servicers participating in the administration’s current $75 billion Home Affordable Modification Program.  Servicers operating under the year-old program are forbidden from auctioning someone’s home while a modification decision is pending.  However, homes are still being foreclosed on and auctioned off anyway.

The problem seems to lie in a lack of enforcement, lack of punishment and oversight.  The Treasury Department has failed to penalize the servicer for breaking the program’s rules.  Treasury officials overseeing the program say they’re aware of the problems and have moved to fix them. However, some states are moving forward to protect the homeowners with recent rules that stop the foreclosure process if the homeowner requests a modification.

Many homeowners have sought assistance through the courts to reclaim their homes.  At a minimum 50 homeowners have recently filed lawsuits alleging a servicer foreclosed on their home while a loan modification was pending and while they were on a payment plan.

Homeowners commonly wait 6 months for a decision on a loan modification request.  The new federal program for encouraging loan modifications includes a 3 month trial period, after which servicers are to decide whether to make the modifications permanent.  Some homeowners are saying they have waited as long as 10 months for an answer only to be turned down resulting in misrepresentation and failure of the modification.

Millions of struggling homeowners have inundated banks and other servicers – Bank of America is the biggest, followed by Chase and Wells Fargo Bank – for assistance in an effort to avoid foreclosure proceedings.  Communication breaks down because of the way in which the servicers are structured.  While one division typically deals with loan modifications, another division deals with foreclosures.  Often one division is not communicating with the other division. 

Homeowners need to beware of companies that state they work with large banks to avoid foreclosure and of companies charging fees for their assistance.  Many homeowners are entering into the loan modification process only to learn that while the modification is being reviewed their home is being foreclosed on and ultimately losing their home.

Under the new federal program, servicers must give borrowers a written denial before foreclosing.  However, the servicer is allowed to push along the foreclosure process and even set a sale date.  This allows the servicer to foreclose more quickly if it is determined that the homeowner doesn’t qualify for a modification.  Ultimately, a homeowner may find that they get a modification offer one day and a foreclosure notice the next. 

It is possible to contest a foreclosure under the new federal program.  New rules issued by the Treasury Department say the servicer must first give the homeowner a shot at a modification before beginning the foreclosure process.  If your home is being foreclosed on and you have sought to modify your existing loan, make sure you seek proper legal advice.  The sooner the better and preferably, BEFORE the foreclosure date.

I frequently speak with people whose loans have been overcharged or convoluted under the guise of late payments and fees, penalty interest, attorney’s fees, reinstatement fees and the like when in fact payments are current or the delay in receipt is due to the bookkeeping errors or computer generated nightmares which frequently exist at mortgage companies and/or servicing lenders. Clients are lost in the backlog of understaffed and overworked mortgage companies who simply make entries that are either late, erroneous, unjustified or not representative of the actual payments that have been submitted to them by the borrowers/homeowners.

The lenders then, usually through computer generated directives, retain attorneys and foreclose or simply foreclose through the existing trustees or substitute trustees when, in point of fact, the loan is current or if it is not current, the disputed sums claimed or their timeliness it is not the fault of the borrower.

It is critical that a homeowner in this situation make an immediate effort to get a court order enjoining the foreclosure before the foreclosure occurs. There are a myriad of legal rights, remedies, defenses and claims that are either lost or seriously watered down when asserted after the foreclosure sale occurs. It is far easier to put the dry spaghetti in stacks and separate it as appropriate than to try to unravel the spaghetti once it has been cooked. Lenders who proceed with foreclosure are by deed granted legal title, or title is passed to a third party purchaser by virtue of the loan documents and the foreclosure sale. This makes it more difficult for an attorney to enforce the rights of the borrower given the claims, expense and costs of the third parties, tying your lawyer’s hands to some degree in what he is capable of doing for you to save your home or business property.

A temporary restraining order injunction upon proper affidavit with sufficient facts is in most cases granted allowing a home or business owner to enforce his claims against the lender or mortgage company while retaining title to the property during the litigation process which can take anywhere from thirty days to three years depending on the court, the county and the jurisdiction.

It is not uncommon for the court to order the borrower to pay all payments into the court registry or an escrow fund where a true and honest accounting of what is being paid while the case is pending can be applied to the final judgment of the court. If the borrower/homeowner’s case has merit and the lender is in breach, state law permits the payment of attorney’s fees in addition to the claims for fees which are ordinarily authorized in form loan documents which puts added pressure on the lender/mortgagee to come to the table and settle the matter based on the actual facts of the case. However, these efforts are hampered greatly if the foreclosure has already occurred. Remember also that a lawyer needs, depending on the court and jurisdiction, enough time in advance of the foreclosure sale date to prepare a petition, temporary restraining order, and request for injunctive relief and/or claim for damages as the case may be in order to properly enforce the rights of the client.

Sadly enough, it is not uncommon for the first words of the client to be “They foreclosed on my house and all my payments are current, what are we going to do now?” The regrettable answer is, we are going to have to set aside the foreclosure and reverse all the legal title convoluted actions which have occurred by virtue of the Trustee Sale, in addition to making a legal effort to reinstate the loan. In most cases this is far more expensive to the client in attorney’s fees, time and consternation than simply preventing the sale in the first place by injunction.

The formal view of contract interpretation ignores what the contracting parties thought the bargain to be and instead asks what a reasonable third party would interpret the words of the contract to mean. This approach is reflected in the following quotation from Federal District Judge Learned Hand:

A contract has, strictly speaking, nothing to do with the personal or individual intent of the parties. A contract is an obligation attached by the mere force of law to certain act of the parties, usually words, which ordinarily accompany and represent a known intent.

A contract requires a meeting of the minds. A determination of whether there was a meeting of the minds is based on objective standards of what the parties said and did, not on their alleged subjective states of mind. In re Hudgins, 188 BR. 938, 942 (E.D. Tex. Bankr. 1995), cited in Spectrum Creations L.P. v. Carolyn Kinder Int’l LLC, 2008 WL 416246, *45 (W.D. Tex. 2008).

An integrated agreement may be either fully integrated or only partially integrated. A fully integrated contracted is a final and complete expression of all terms agreed upon between or among the parties. A partially integrated contract is a final and complete expression of the terms regarding an agreement, but not a final and complete expression of all terms agreed upon between the parties. Some of the terms agreed upon are not contained in the written agreement.

Under the Parole Evidence Rule, if the parties have integrated their agreement into a single written contract, all prior negotiations and agreements with regard to the same subject matter are excluded from consideration, whether written or oral. Parole evidence is admissible to supplement or explain a partially integrated contract, but is not admissible to contradict it.

The primary duty of a court when considering the validity of a contract is to ascertain the intent of the parties from the contract as a whole, known as the “four corners rule,” not from isolated parts of the contract. This rule requires the court to look at the words of the contract, not prior drafts or exchanges of letters or other documents or testimony to determine the intent of the parties. To achieve this goal, the court must examine the entire document and consider each part with every other part so that the effect and meaning of one part on any other part may be determined. No one phrase, sentence or section of a contract should be isolated and considered apart from the other provisions.

Terms of a contract are given their plain, ordinary and general meaning unless the instrument shows that the parties used them in a technical or different sense. Words should be taken in their immediate context.

The expression of one thing is the exclusion of another. This is used to control, limit or restrain the otherwise implied effect of an instrument, and not to annex incidents to written contracts in matters with respect to which they are silent.

When words of a general nature are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation. In some cases a list of consistent terms will include an overly-broad term that seems to reach beyond the scope of the other things listed. Ejusdem generis will limit an overly-broad term to be consistent with the list. However, the doctrine is not limited to lists. It can also apply to sentences in a paragraph.

When a contract is unambiguous, the court should apply the pertinent rules of construction, apply the plain meaning of the contract language, and enforce the contract as written.

It is a generally accepted rule of contracts that where several contracts are executed contemporaneously or at different times and pertain to the same transaction, they will be read together although they do not expressly refer to each other.

There are other general rules such as: Specific terms will prevail over general terms. Earlier terms will prevail over later terms, except in the instance of a Will. Handwritten terms will prevail over typed terms and typed terms will prevail over preprinted terms. Words prevail over number or symbols. Courts are required to follow elemental rules of grammar for a reasonable application of the legal rules of construction.

It is also a rule universally recognized that if an instrument admits of two constructions, one of which would make it valid and the other invalid, the former must prevail.

There is a presumption against illegality. When a contract by its terms, construed as a whole, is doubtful, or even susceptible of more than one reasonable construction, a court will adopt the construction which comports with legality. It is presumed that in constructing contracts the parties intend to observe and obey the law.

Finally, when agreements between parties are reduced to writing, the written instrument is presumed to embody their entire agreement, and the court should not read into the instrument additional provisions unless this is necessary to effectuate the intention of the parties as disclosed by the contract as a whole. Danciger Oil & Ref. Co. v. Powell, 154 S.W.2d 632, 635 (Tex. 1941).

Do you need a business contract reviewed by a Dallas attorney? Contact Dallas business contract attorney Mark Nacol today!

Anyone can form a corporation in Texas.  A corporation can form another corporation.  Once the corporation is formed, the entity formed is responsible for all actions done in the corporate name.  The new entity is required to file state and federal taxes and acquire any licenses to do business in the name of the corporation.  The corporation can purchase insurance, own real estate and cars and other assets or personal property as if were a natural person.  It is responsible for actions both good and bad done in its name.  If a corporation fails, shareholders normally only stand to lose their investment, and employees will lose their jobs, but neither will be further liable for debts that remain owing to the corporation’s creditors.

Corporations can exercise human rights against real individuals and the state, and they may be responsible for human rights violations.  There are five core characteristics of a business corporation:

•Legal personality
•Limited liability
•Transferable shares
•Centralized management under a board structure
•Shared ownership by contributors of capital

Generally, the corporation files articles of incorporation with the government, laying out the general nature of the corporation, the amount of stock it is authorized to issue, and the names and addresses of directors.  Once the articles are approved, the corporation’s directors meet to create bylaws that govern the internal functions of the corporation, such as meeting the procedures and officer positions. 

•Some of the advantages of a corporation are as follows:

•Shareholders have limited liability for the corporation’s debts or judgments against the corporation.

•Generally, shareholders can only be held accountable for their investment in stock of the company.

•A Texas corporation may deduct the cost of benefits it provides to officers and employees. 

•A corporation pays 15% federal income tax on taxable income up to $50,000; 25% tax on income from $50,001 - $75,000; 34% tax on income from $57,001 - $100,000; 39% tax on income from $100,001 - $335,000; and 34$ tax on income over $335,001

There are some disadvantages to a corporation.  The process of incorporating a business in Texas may require more time and money than other forms of organizations and the corporation may be monitored by federal, state and some local agencies and as a result require have more paperwork to properly comply with regulations.  Incorporating may also result in higher overall taxes in some circumstances. 

For answers to your questions on forming a business corporation in Texas, contact Dallas business attorney Mark Nacol with the Nacol Law Firm, P.C.

You may hear that an oral agreement is just as valid as a written agreement.  However, in a court of law, a written contract ordinarily trumps an oral contract.  This means that in disputes, should there be a disagreement on a provision of the contract, the Court will use the written provisions of the contract to interpret the meaning before it will consider the oral arguments.  Further, typewritten provisions control over printed provisions.  Under Texas law, the requirements for a valid contract are: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds ”meeting of the minds” is actually subpart of offer and accepted elements, not an independent element; (4) each party’s consent to the terms; (5) consideration; and (6) execution and delivery of the contract with the intent that it be mutual and binding. The elements of written and oral contracts are the same, and they all must be present in order for the contract to be binding.

In determining whether an oral contract exists, the court looks to the communications between the parties and to the acts and circumstances surrounding those communications. The terms of an oral contract may be established by direct or circumstantial evidence Although delivery is generally essential to the validity of a contract, when the parties manifest an intent through their actions and words that the contract is effective, delivery is shown.

It is important when making an oral contract that a party keep any and all documentation regarding the agreement.  Should a party end up in litigation, notes regarding the agreements between the parties, the times such agreements were made, the witnesses to such agreements and any emails or written correspondence between the parties can be important to proving that a valid contract existed. Even hand written sticky notes become important when trying to prove the existence of an oral contract.  Place all information pertaining to your agreement in one place. 

A basic element of any contract is a promise. A ”contractual promise” is an express or implied declaration made by one person, the promisor, for the purpose of assuring another person, the promisee, that a particular action or restraint from action will occur. A contractual promise is what is objectively determinable from the parties’ words or actions. It is different from either party’s subjective intentions. ”Intentions” are the purposes formed in one person’s mind, which may begin and end with that person. Similarly, a party’s subjective ”expectations” that the other party will act or refrain from acting are also irrelevant to objectively determinable, contractual promises.

To prove a valid offer, a party must show (1) the offeror intended to make an offer, (2) the terms of the offer were clear and definite, and (3) the offeror communicated the essential terms of the offer to the offeree.  An ”offer” is a clear and definite proposal to enter into a contract immediately once the offer is accepted. A proposal qualifies as an offer when it is sufficiently definite so that, if accepted, it clearly and definitely establishes the promises and performances to be rendered by each party certainty of terms as element of valid contract analyzed. Thus, an offer that may ripen into a contract differs from a mere expression of desire or hope that the parties may, at some time in the future, come to an agreement. An offer that may ripen into a contract also differs from mere preliminary negotiations.

To determine whether there was a meeting of the minds, a court reviews in an objective fashion, without considering subjective intent, what the parties actually said and did. One party’s uncommunicated reservations concerning the contract are insufficient to prevent a meeting of the minds. The parties’ failure to agree on a material term precludes a meeting of the minds necessary to form a valid contract.  If evidence of the parties’ mutual agreement consists of their conduct and course of dealing, their mutual agreement may be inferred from the circumstances, in which case their contract is an ”implied contract’.’

In some cases, what objectively appears to have been a valid offer and acceptance results in only a voidable contract because one party’s consent was, in fact, procured by fraud, undue influence, duress, or mistake.

Some contracts cannot be made orally.  Contracts that must be in writing and must be signed are the following:

• A promise by an executor or administrator to answer out of the executor or administrator’s own estate for any debt or damage due from the testator or intestate.
• A promise by one person to answer for the debt, default, or miscarriage of another.  For example, an alleged oral agreement between current and former partners in a joint venture, that the current partner would take over the former partner’s obligation on the venture’s debt in exchange for the former partner’s assignment of his interest in the venture, was subject to the statute of frauds as an agreement to assume the debt of another.
• An agreement made on consideration of marriage or on consideration of nonmarital conjugal cohabitation.
• A contract for sale of real estate.  An agreement to pay a certain sum of money out of the proceeds of a future sale of real estate in return for personal services rendered does not fall within this provision of the statute of frauds.  However, the Texas Supreme Court has indicated that the conveyance of an overriding royalty interest in future production from unleased land may be subject to the statute of frauds.
• A lease of real estate for a term longer than one year.
• An agreement that is not to be performed within one year from the date of making the agreement.  If the agreement may be conceivably be performed in one year, the statute of frauds does not apply, no matter how improbable performance within one year may be.  For the purpose of the one-year rule, there is a technical distinction between the termination of a contract and the performance of a contract.
• A promise or agreement to pay a commission for the sale or purchase of an oil or gas lease or royalty, minerals, or mineral interest.
• An agreement, promise, contract, or warranty of cure relating to medical care or results made by a physician or health care provider other than a pharmacist.
• Loan agreements in excess of $50,000 made by financial institutions are also required to be in writing in order to be enforceable.  [Dorsoneo Litigation Guide].

A written contract that is not required by law to be in writing may be modified by the parties’ subsequent oral agreement, even if the written contract provides that it can be modified only by a written agreement.  Courts have allowed oral modification, reasoning that a written agreement is of no higher legal degree than an oral agreement, and either may vary or discharge the other.

Not every oral modification to a contract is barred.  The critical inquiry is whether the modification materially affects the obligation of the contract.  An oral modification is enforceable if the character or value of the contract is unaltered.

The fundamental problem with the oral contract is that it can be difficult to prove.  If a party chooses not to honor the bargain they will most likely claim that no agreement was ever reached. Thus, the case may be decided on the evidence available. 

Do you have an oral contracts with business vendors or employees that you would like to discuss with a Dallas contract attorney? Call Dallas contract attorney Mark Nacol to dicusss any questions you may have on oral contracts in the  Dallas,  Texas area.

What is a Prenuptial Agreement? It is a legal document that establishes in advance how property, assets acquired or received by gift during a marriage and family heirlooms passed from family members to one of the parties will be owned or divided in the event the couple should part ways.

Prenuptial Agreements have become very popular with Baby Boomers (born between 1946-1964) since they have on the average accumulated more money and assets and can afford to pay for adequate protection. Since 2006, 80% of Family Law Attorneys have seen a marked increase in couples who sign prenups, according to a survey sponsored by the Matrimonial Lawyers Group.

In the current financial crisis, with a 31% drop in home values and a 53% drop in stock portfolios, Boomers have been hit the hardest, which has accelerated the trend. Boomers have therefore become more cautious in holding on to their remaining current assets.  Boomers are also blending homes and corresponding obligations. Prenups are becoming the Estate Planning Tool of the future!

Given Boomer age ranges, they are more likely to have been married and divorced multiple times.  4 out of 10 Boomers have experienced a divorce and by their 50th birthday, 27% have moved on to a second or third marriage.

So When Should Boomer Couples Consider Having A Prenup?

1. When significant assets are involved such as a home & property, retirement funds, stocks and bonds, or liquid assets.
2. When there are children of a previous marriage. The children’s interest, past and future, need protection since most states by law give the surviving spouse up to half of the estate.
3. When one spouse owns all or part of a business.
4. When one spouse is much wealthier than the other spouse.
5. When one spouse is much older than the other spouse.
6. When one spouse is supporting the other while he or she attain an educational degree.
7. When there is an inheritance involved.

When both spouses feel that the possibility of a divorce and expenses related to it are a bad idea and wish for a premarital binding understanding, what should they do?

1. Hire a qualified lawyer to prepare a fair and binding agreement according to their wishes and needs.
2. Make full disclosure of all property, financial accounts, debts, and assets involved.
3. Comply with requisite state laws.

If one acknowledges that nearly half of all marriages end in divorce, a prenuptial agreement can avoid a number of unnecessary expenses, reduce attorney fees, and avoid state mandated arbitrary divisions.

Today’s Baby Boomers are more educated than any previous American Generation and their divorce rate is triple that of their parent’s generation. Break ups among long term married couples are becoming more frequent with longer life spans and the growing  regrettable acceptability of divorce. In 2008, ¼ of all divorces reported were marriages of over 20 years with divorces of couples 55 or older rising moderately.  A longer life span means the possibility of a new relationship, and opportunities for repartnering after age 55 are greater than they used to be.

The top three reasons for long term marriage dissolutions are Abuse, Infidelity, and Money Control Issues. Another rising issue is couples who have been married for decades. Baby Boomers start taking their marriages for granted and are focusing on different issues until it is too late to seek a reconnect with their estranged spouses. These break ups are referred as “Cold Divorces” characterized by isolation, distance and disengagement and are usually a product of a gradual buildup. Empty Nester divorces are also on the rise, since the spouses no longer have their children to hold the marriage together. An AARP survey of older divorced couples found that two-thirds (2/3) of the divorces were initiated by the woman, frequently to the surprise of the man.

A recent poll was conducted by the National Association of Divorce for Women & Children and the Baby Boomer on divorce.  The results were really startling!  41% of all participants said that dealing with finances, debt and security were the most challenging parts of finalizing a divorce. Asset division was second at 19%, and Custody of the Children was third at 13%.

Depicting divorce as an unsettling emotional roller coaster ride, 41% of the participants reported coping skills would have been helpful to cope with the divorce process, 28% reported Stress Management, and failure of Communication Skills was a close third at 26%.

Finally, 55% of the participants reported having an amicable relationship with their former spouse. 15% could not be in the same room with their former spouse and only 4% reported they had learned to tolerate the other for the sake of their children! Many expressed sadness, shame and embarrassment for having to divorce.

Some warning signs to look out for in a Boomer Divorce are:

• Spouses who argue at least once a week about money are 30% more likely to get divorced
• If your parents are divorced, you are 40% more likely to get divorced
• If both of you have been previously divorced, you are 90% more likely to seek divorce than those of a first marriage.

The US Census estimates about half of all marriages end in divorce! As you grow older people change, but to preserve a marriage, the spouses  need to continue working on their Marriage to Keep it Intact!

Excluded from participation in the program is any whistleblower who, at the time the whistleblower acquired the original information submitted to the SEC, was a member, officer, or employee of a specifically indicated regulatory agency, the Department of Justice, a self-regulating organization, the Public Company Accounting Oversight Board, or a law enforcement agency.  Further, a whistleblower is not eligible to be compensated under certain defined circumstances.

The new legislation has broad implications across the financial and corporate sectors and gives increased power and reach to the SEC.  The SEC and the Department of Justice in the past few years have been active in the area of Foreign Corrupt Practices Act matters.  As of the signing of the bill, the SEC has greater ability to extract information from employees of corporations and others involved with those employees.  Congress believes, based on prior enforcement actions, that some of the best evidence and information the SEC can use in enforcement action is from those knowledgeable employees tucked inside a company. 

In major accounting fraud cases such as WorldCom and AIG, the total sanctions in those enforcement actions were in the hundreds of millions of dollars.  In cases such as this, the corporate insider whistleblower would have a very large reward at the end of the process.  The types of cases and the potential recoveries involved have actually greatly expended and increased as a result of the Dodd-Frank Act whistleblower provisions.

Since there are over 500 public companies and over 1,500 financial sector companies headquartered in Texas, this new movement by the SEC may mean such businesses need to re-evaluate and improve their internal compliance structure to prevent any violations of federal and state securities laws.

Whistleblowers are allowed to anonymously provide information through counsel, but must identify themselves prior to receiving any award.

It should be noted that this Dodd-Frank Act also creates a private right of action for whistleblowers against employers who discharge, suspend, threaten, harass, or discriminate against a whistleblower, and makes favorable changes regarding whistleblower laws under the Sarbanes Oxley Act Section 1514a, such as extending the limitation period and providing for a jury trial in federal court. 

A company is covered by Section 806 of the Sarbanes-Oxley Act of 2002 if it has a class of securities registered under Section 12 of the Securities Exchange Act, or is required to file reports under Section 15(d) of the Act.  Its contractors, subcontractors, or agents may also be covered.

If an employer is covered under the Act, it may not discharge or in any manner retaliate against an employee because he or she:

• provided information
• caused information to be provided, or
• assisted in an investigation by

•  
  • a federal regulatory or law enforcement agency
  • a member or committee of Congress, or
  • an internal investigation by the company relating to an alleged violation of mail fraud, wire fraud, bank fraud, securities fraud, or violating SEC rules or regulations or federal laws relating to fraud against shareholders.

In addition, an employer may not discharge or in any manner retaliate against an employee because he or she filed, caused to be filed, participated in or assisted in a proceeding under one of these laws or regulations.

If an employer takes retaliatory action against an employee because he or she engaged in any of these protected activities, the employee can file a complaint with OSHA.

Your employer may be found to have violated one of these statutes if your protected activity was a motivating factor in its decision to take an unfavorable personnel action against you, such as:

• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denying benefits
• Failing to hire or rehire
• Intimidation
• Reassignment affecting promotion prospects
• Reducing pay or hours

Complaints must be filed in writing within 90 days after an alleged violation of the Act occurs (that is, when the complainant becomes aware of the retaliatory action) and must include the following information:

• The name, address and phone number(s) of the person filing the complaint, or on whose behalf the complaint is being filed, must be included.
• The names and addresses of the company(s) and person(s) who are alleged to have violated the Act (who the complaint is being filed against).
• Sufficient detail to allege the four elements of a prima facie violation:

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  • The employee engaged in a protected activity or conduct;
  • The employer or named person knew or suspected, actually or constructively, that the employee engaged in the protected activity;
  • The employee suffered an unfavorable personnel action; and
  • The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action.