A real estate closing in Raleigh, North Carolina is typically the largest financial transaction which most people go through in their lifetime. This blog post will discuss some of the issues which can arise during the final stages of the closing process. Having your home purchase offer accepted is like getting that runner’s high during a marathon; however, if you stumble at any stage of the marathon, the purchase may fall through and put you back at the starting line. Just like an athlete trains for a race, you can train yourself for the daunting final steps in purchasing a home. Remember that you should be patient and pace yourself. Too many people become emotionally distraught during the real estate closing process in Raleigh, North Carolina and this impacts both the individual and their spouse. Keep in mind that you will own the home for years or even decades to come and this is just the final stage before you own the home!

1. The termite inspection reveals extensive damage. The lender will have a pest inspection done on the home (at your expense – usually less than $100) to make sure there is no serious damage caused by wood-munching insects like termites and carpenter ants. This inspection protects the lender’s interest in the property. If it is an investment property, tenants who discover termite problems after moving in often abandon the property, which leaves the landlord holding the bag. Some lenders may not require a termite inspection, but it may be in your best interest to get one anyway. If the inspection uncovers any evidence of visible infestation, the problem areas may have to be remedied before escrow can close. If the problems are too severe and/or the seller won’t pay to fix them, you’ll have the option to walk away, as long as your purchase agreement has the proper contingencies.
   
   2. The appraisal isn’t high enough. The bank will have the home appraised (again, at your expense) in order to protect its interest in the home. It wants to make sure the home is worth at least as much as you will be paying for it so that, if foreclosure is in the future, losses can be recouped. If the appraisal comes in too low, the seller will have to lower the selling price or you will have to pay cash for the difference. It may be possible to get a more favorable second opinion from a different appraiser.
   
   3. There are issues with the title. During the escrow process, you’ll hire a North Carolina real estate attorney to do a title search and you’ll also get title insurance. Most states do not require buyers to use an attorney but North Carolina is one of the few that do. The title search ensures that no one else has a legal claim to the property you want to buy (such as the IRS, the state or a relative of the seller), and title insurance protects you against any future claims to the property. If there is some sort of lien or claim against the property, the issue will have to be resolved before the transaction can proceed.
   
   4. The home inspection reveals major defects. Most purchase offers have an inspection contingency written into them, so that if the home inspection reveals serious problems, the purchaser can back out without penalty. Almost all lenders will require an inspection; however, even if it a cash closing (no loan) an inspection is always recommended. If you didn’t put this contingency in your contract, you may lose your earnest money. If not, the process of negotiating with the seller to have the home repaired or to credit you money at closing in order to handle the repairs yourself, can potentially hold up the purchase process and delay your closing.
   
   5. You get cold feet or the seller backs out. The contract will outline justifiable reasons for either the buyer or seller to back out without penalty, such as not waiving a contingency or not meeting a deadline. However, if you decide, after waiving the contingencies, that you don’t want to go through with the purchase (for example, because you found another house you like better), you’ll again lose your earnest money. The reasoning here is that the seller should be compensated for the time the home was off the market, which will delay the amount of time it ultimately takes him or her to sell (and which may have financial ramifications for the seller). Conversely, if the seller decides to back out simply because of a change of heart or because a better offer was made, you will have a legal right to collect damages from the seller.
   
   6. Your financing falls through. Savvy buyers don’t make offers on homes without getting preapproved – that is, without getting a written loan commitment from a bank that it will provide you with mortgage of a certain amount (and savvy sellers don’t accept offers from buyers who aren’t preapproved). However, there are things that can prevent the loan from closing, such as if you lied on the application, interest rates increase sharply, your job situation changes or your credit score goes down. Do not incur any substantial debt during the sixty days prior to the closing date as it will impact your credit score. This can delay or cancel the closing.
   
   7. The property is in a high-risk area and you don’t want to live with that risk (or pay to insure against it). In North Carolina, the main type of hazard insurance homeowners purchase is flood insurance. Depending on the location, this type of insurance can be very expensive. To prevent unpleasant surprises during escrow, ask your agent, neighbors, and/or the city planning department, when you first start looking for a home, which natural hazards exist in your desired area, what type of extra insurance you might have to buy, and how much it might cost.
   
   8. The home isn’t insurable. If a previous homeowner has made a major insurance claim on the home, such as water damage or a mold claim, this will show up in insurance records, and insurance companies may refuse to insure the home, thinking that it is too much of a risk. If a home is not insurable, you will not be able to buy it unless you are an all-cash buyer, as lenders require you to maintain homeowners insurance until the mortgage is fully paid off. Of course, even if you are a cash buyer, it probably isn’t a good idea to buy an uninsurable home.
   
   9. There are costly differences between your good faith estimate and HUD-1. When you get your loan preapproval, and again when you put an offer on a specific property, your lender should give you a good faith estimate detailing the closing costs associated with obtaining financing on the home. The good faith estimate is basically a rough draft of what the HUD-1 Form you will receive at least 24 hours before the closing date. As its name implies, the good faith estimate should be a close approximation of what you will actually end up paying – ideally within 10%.

10. Errors prevent closing on time. There are many different parties involved in closing escrow, and if any            one of them makes a mistake, your closing can be delayed. Depending on what your purchase contract         stipulates and whose fault the delay is, if you don’t close on time, you may have to pay the seller a penalty for every day that the closing is late. The seller could also refuse to extend the closing date and the whole deal could fall through. In a best-case scenario, the seller could simply agree to extend the closing date with no penalty. After all, if the deal doesn’t close, the seller will have to start all over again, too.

These are just some of the problems that occur during a real estate closing in Raleigh and other parts of North Carolina. It will be a stressful process but once your purchase is completed you can begin your life in your new home. Anglin Law Firm is a real estate law firm that is here to help you! if you have any questions, please feel free to contact us using the comments tab below or call us at 919-803-1516.

Tenants frequently contact me when they are having a dispute with their landlord in the Raleigh, North Carolina or Wake County area. These disputes typically arise out of a number of different situations; however, the most common situation arises when the tenant’s lease is ending and the landlord has either refused to return the security deposit or is demanding an amount in excess of the security deposit to cover repairs to the apartment. This, of course, occurs at the end of the lease when it will be much more expensive and time consuming to deal with your landlord. This is most common when it is a private landlord that the tenant is renting from because the landlord will often be unfamiliar with the laws governing residential tenants in North Carolina and the landlords routinely do not follow them. There are a number of ways to protect yourself as a tenant in Raleigh, North Carolina before the lease is even signed and this is the topic of this blog. I will have a blog at a later date about how to protect yourself after the lease has been signed.

#1: Know tenants’ rights in North Carolina.
Tenants and landlords’ rights and regulations are set in North Carolina by the North Carolina Residential Rental Agreements Act of 1977. Here is a link to the law: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_42.html .

Familiarize yourself with North Carolina’s rules on leases, treatment of security deposits and the eviction process. The more than you know about your rights as a tenant, the more you can protect yourself against any illegal actions of the landlord.

#2: Investigate buildings and properties in Raleigh.
Landlords and management companies are as varied as the tenants who inhabit their properties.  Check apartment rating sites such as Apartment Ratings and Apartment Reviews. Read neighborhood blogs, whether intended for renters or owners — especially if you’re considering renting in a condo buidling that was originally intended for owners but was converted to rentals. These buildings may “go condo” again as part of the developer’s strategy, so if you’re planning to stay awhile, keep that in mind. Take a look at foreclosures in an area, too, using tools like ZIP code searches from providers such as RealtyTrac.

#3: Get a lease — and read it. 
Whether you’re entering a long-term rental agreement or just subletting for a few months, you need a lease. It will explain how the landlord is to behave and how you are to behave, and the consequences of either party not living up to expectations. Leases will spell out rules on deposit (how much, how long it will be held after move-out, whether it must be placed in an interest-bearing account or not); landlord access to the property (how much notice, etc.); fees or eviction procedures if you pay rent late or fail to pay; and more. They may also spell out policies on roommates, subletting, ending the lease early, going month-to-month and more.

While most landlords and renters begin their relationship with the best of intentions, circumstances can change and leases help provide a guideline for how to navigate them. When in doubt, ask questions. Also, keep in mind that leases are negotiable: You want to pay a lower pet fee, spread your deposit out over a few months, or go month-to-month at the six-month mark instead of the 12-month mark? It never hurts to ask.

#4: Expect a background check. 
Landlords routinely conduct background checks, calling prior landlords, confirming your income or employment, reviewing your credit report or other forms of payment history and verifying whether you have any legal infractions in your background. Check your own credit and background before you begin looking to rent an apartment. You want to check before your landlord does so that you know in advance about any red flags that appear on your record and can prepare for a conversation with the landlord or property manager rather than stammer on the spot. Keep in mind that some background check services don’t always get it right: If you have a common name (i.e., John Smith) or same-named person living in the area (perhaps a relative), occasionally information crosses wires. Separately, if your credit is poor, but your outlook is brightening — say you were out of work for a time and ran up credit cards, but now have a new job and have been in it for a few months — a landlord may be forgiving when told the reason for the poor scores. Check your background using services like Intelius or PeopleSmart and run your credit report (free, once a year) atAnnualCreditReport.com.

#5: Get renters’ insurance before you move in. 
Most landlords will have insurance on their buildings, but what that covers may not extend to your home or its contents in the event of problems like fire, burglary or natural disaster. And if you have a guest who hurts himself or herself at your home, or a pet that bites, you might be liable for others’ medical coverage if they choose to sue. To protect yourself, use renters insurance and get it before you move in! Some landlords require that you have renters’ insurance, which minimizes the risk of landlord-tenant disputes in the event of problems in your home. Renters insurance is relatively inexpensive — typically $15 to $30 per month, depending on the policy type, provider and level of coverage — and generally covers theft and damage from fire, windstorms and hail, and internally generated water damage (such as that resulting from sprinkler system activation). You can also buy policies that cover a business you run from home, that offer a living allowance should you need to move out while your place is under repair, and so forth. Some varieties of renters insurance cover personal property inside your home as well as property that might be with you outside the home (like a laptop normally stored at home that you leave in a car trunk, for instance). Shop around at portals such as Renters Insurance, ask your auto insurer if it offers policies or hit any of the major national insurers for more information.

#6: Use your camera. 
When you take possession of your rental, take photos noting your rental’s condition. These images can be useful if you wind up in any kind of disagreement or dispute concerning maintenance, damage or insurance coverage. If your phone or camera has a time-stamp feature, use it to verify when the images were recorded. It’s not being paranoid — it’s using common sense.

#7: Know where to complain.
If you feel that your landlord or management company is mistreating you when you are applying for an apartment in Raleigh, North Carolina, you have a variety of places to complain. For discrimination, including rejection of a rental application on potentially discriminatory grounds, contact the U.S. Department of Housing and Urban Development or the U.S. Department of Justice’s Civil Rights Division via email at fairhousing@usdoj.gov.

These are just some tips for protecting yourself when you are looking for an apartment in areas in Wake County including Raleigh, North Carolina. Landlord-tenant law can be a complex area of law and waiting until the problem arises is much more difficult to deal with than taking preventive measures to protect yourself.  If you have any questions please feel free to contact Chris at 919-803-1516 or http://anglinlawfirm.com/contact-us/ .

Many employees feel that their employer has discriminated against them as a result of their age, sex, disability, race, national origin or other protected classes and they know that the employer cannot do that. However, when this has occurred most people do not know what action they should take in order to protect themselves and preserve their right to file a lawsuit in federal court. In order to sue in federal court, employees have to file what is known as a charge of discrimination with the EEOC. The EEOC, which is the United States Equal Employment Opportunity Commission, handles the investigation of claims of employment discrimination in violation of federal law. There are a number of procedural requirements which an employee must follow in order to preserve their rights.

1. The first is that charge of discrimination must be filed within one hundred eighty (180) days of the alleged act of discrimination. Currently, the EEOC does not accept on-line complaints and it must be filed with a field office. Here is a link to the EEOC field offices and each office covers a designated area: http://www.eeoc.gov/field/index.cfm . In order to find the field office which the complaint needs to be filed with, all you need to do is enter the zip code of where you live or work and the office contact information will come up. Most people in Central or Eastern North Carolina will file their charge with the Raleigh EEOC field office. Here is the link to the Raleigh Office: http://www.eeoc.gov/field/raleigh/ . Filing the charge within 180 days is very important because if you do not file the charge on time, in most instances you lose your right to pursue your employer.  Make sure to file the charge within 180 days of when you are terminated, demoted, denied a promotion, given a negative review, fellow employee says something inappropriate to you, etc. A Raleigh employment or labor lawyer should be contacted prior to the filing of an EEOC charge in order to help you draft it to maximize your chances of success.
2. Following the filing of the charge, the EEOC will open an investigation and provide you with a file number and the contact information of the investigator. The investigator will contact your employer and also you for additional information. The EEOC like, most federal government agencies, is generally understaffed and has a huge number of complaints filed, so be prepared for your complaint to take several month or longer for any action to be taken. During the course of the investigation, the matter may be referred to mediation where you and your employer will meet with a mediator employed by the EEOC. This is where an attempt will be made to resolve your complaint. There are a number of possible outcomes of your complaint of discrimination but the most likely outcome is that the EEOC will find that you have not been discriminated against and will issue a right to sue letter.
3. Following the issue of a right to sue letter, you have ninety (90) days to file your lawsuit in either state or federal court. Remember, that time is not on your side. Again, just like filing your charge of discrimination within the 180 day time period, if you do not file your lawsuit within 90 days, you waive your right to pursue the lawsuit under federal law. People call me, who think that because they have been issued a right to sue letter, the EEOC found that there has been discrimination and they have a good case; however, this is not true. The EEOC has found no evidence of discrimination and issues a right to sue letter in almost all cases. This should not prevent you from filing a lawsuit.  If you have not retained an attorney prior to the right to sue letter being issued, then this is the time to do so. Pursuing a federal employment discrimination case in either state or federal court is complicated and your employer is guaranteed to have an attorney representing them so you should contact a Raleigh employment law firm immediately.  Also, if the case is in the Eastern District of North Carolina, it is likely to be dismissed when the defendant files a motion for summary judgment.

This is just a short explanation of the EEOC complaint process and as you can see, it is not straightforward or easy. The best time to hire an attorney is at the outset of the process before you have filed the charge of discrimination in order to help guide you through the process and maximize your chances of success. I have been hired before when the lawsuit was already pending in federal court and this makes it more difficult to have a successful resolution to the case. Employment discrimination cases can difficult ones to win and in North Carolina, the law is generally favorable to the employers. In addition to filing under federal law, employment discrimination cases can also be brought under North Carolina state law which is a decision a Raleigh employment attorney can help you make. Should you have any questions please contact me  at 919-803-1516 or by leaving a comment below.

The moments after a car accident are often overwhelming and confusing. There are certain actions which you should take when you are involved in a crash in Raleigh, North Carolina or in Wake County because the laws are so favorable to the insurance companies of the at-fault driver.  You should contact a car accident attorney immediately. There are numerous laws which reduce the amount which you can recover for injuries when you are involved in an accident in Raleigh. But there are certain key things you must do in order to protect yourself and help your case. Taking pictures of the accident, noting the time and weather, and not signing your rights away are just a few things you can to do help yourself. If you wait too long, sometimes important evidence can be washed away or lost. So follow these steps as soon after the accident as you can.

Even if you haven’t been in an accident, keep a copy of these helpful tips with you for quick reference.

DOs

• Do immediately call for medical help if someone is injured.
• Do immediately seek medical attention if you are injured. It is important to document your injuries.
• Do call the police. They will document the accident and gather facts for legal purposes. If you don’t call the police, it is your word against the other person’s.
• Do report the accident to your insurance agent as soon as possible.
• Do exchange information with the other parties involved, such as address and phone number. If it’s a car accident get the license plate number; make, model and year of the vehicle; driver’s insurance information; car registration number; driver’s license number.
• Do get the names, addresses, and phone numbers of any witnesses. Keep in mind, if it was a car accident, any passengers involved in the accident are NOT witnesses.
• Do take pictures with your smart phone of the accident. Take pictures of all angles of the accident and  make sure to pay particular attention to the damage to both vehicles.
• Do collect any physical evidence that could have caused the accident.
• Do gather details from the accident: draw a diagram of the accident; note the date and time; the type of weather; the location of the accident—including any landmarks.
• Do call an attorney immediately. Anglin Law Firm can help you get the most from your automobile accident.

DON’Ts

• Don’t panic. Remain calm and call for help.
• Don’t leave the scene of the accident.
• Don’t discuss the accident with anyone and blame anyone, including yourself.
• Don’t forget to document and take pictures of all damages, especially your vehicle, if in a car accident.
• Don’t wait. The longer you wait to get legal advice, the harder it is to prove your case.
• Don’t speak to anybody from the at-fault person’s insurance company before consulting a lawyer. If you give a statement, it may be used against you in the future. Remember the other driver’s insurance is not on your side during a car accident. They will use the statement to reduce the compensation you may be eligible for.
• Don’t sign any papers given to you by an insurance company or agree to a settlement of your case until you get legal advice.

These are just some of the things you can do to protect yourself and your rights. If you need help, Anglin Law Firm has the experience and resources to take on a system that does not always work in your favor, even when you’ve done nothing wrong. If you have any further questions, feel free to contact us at 919-803-1516 or at http://anglinlawfirm.com/contact-us/ .

Small businesses by their very nature are likely, at least occasionally, to have disputes with their customers regarding the work they have done and the bill. It is not uncommon for the customer, if an individual or another small business, to demand their money back if they are unhappy with the product or for the customer to refuse to pay. I often get calls from customers who are unhappy with the service of the business or a business who needs to pursue the customer for payment. There are usually varying degrees of merit for either the customer or the business. When a customer is asking for their money back from the small business, there is an inherent problem in this request that I don’t think many people realize. Depending on the size of the business, many small businesses which have less than five employees, do not have a sizable amount of money in their operating account i.e. the money goes out almost as fast it comes in.

This is the business equivalent of an individual living paycheck to paycheck. Many small businesses are never able to build up a sizeable amount in the operating account due to having too many expenses. Another reason that the small businesses will have a relatively small balance in the operating account is because if there is a large amount in there, the owner will pay it to themselves. This especially seems to be a problem in the construction industry in Raleigh, at least amongst the smaller contractors or handymen. Depending on the work done, the amount which homeowners will pay to contractors will represent a significant portion of their disposable income for a year. Often the work is either not done to the homeowner’s satisfaction or needs to be redone. When the work needs to be redone, the homeowner typically has problems affording it.

The situation which seems to arise the most often is that the homeowner will pay a portion of the total fee to the contractor and then the contractor will do some of the work. When the contractor has gotten somewhere past the halfway mark or finished, the contractor will ask for payment in full. The homeowner will either be dissatisfied with the work and demand it be redone for free or they will get a second opinion from another contractor about the price of finishing or fixing the job and the quote will be a significant portion of the original amount paid to the contractor or more than was paid in the first place. This is where the contractor has to make a decision about what to do. Remember when I mentioned the money going out quickly? The contractor, most likely has already spent the money from the work, and is unable to return the full balance, if any. Also, they do not have the time to redo the work because they have to move onto the next job in order to keep a positive balance in their operating account not to mention they are going to be angry at the homeowner and feel that they were right. There are ways to be able to recoup at least some of the money from a small business, even if it is not in the business’s operating account. Unfortunately, this cycle of events seems to repeat itself over and over again in the Raleigh and Wake County. There are ways to avoid these situations altogether and if the situation is not avoided, at least to minimize the amount of time and money spent on the dispute. If you would like more information, please contact us at anytime at 919-803-1516 or me directly via e-mail at chris@anglinlawfirm.com.

One of the most frequent calls I get anymore is from a homeowner who has had a problem with a contractor who has done work on their home. These calls include anything from major defects in new home construction or a handyman who has made a mess of installing a kitchen or bathroom. Unfortunately for homeowners, these construction law issues in Raleigh, North Carolina are by no means rare and happen with alarming frequency. In order to avoid the issues with your contractor getting to a point where an attorney is needed, there are a few common sense actions which you can take at the start of your relationship with the contractor or builder in order to protect yourself.

1. The first thing you should do is to check the references of the contractor or builder. Ask for a list of satisfied customers from the Raleigh builder or contractor. Generally, most legitimate businesses will be happy to provide their potential customers with a list of happy customers. You should contact these people in order to assure that the builder or contractor has done a good job in their work.
2. The second thing you should do is to conduct an internet search to look for positive or negative comments. You can just go to www.google.com or www.yahoo.com to conduct a search. Use the company’s name and see what you find. Often times, there will be a pattern of negative comments on various websites if the company’s or individual’s work is deficient.
3. If the work which is going to be done on your home is in excess of $30,000.00, North Carolina law requires that you use a general contractor. A search can be done of North Carolina licensed general contractors on the website of the state board which oversees their licensing. The name of the board is the North Carolina Licensing Board for General Contractors and the website address is www.nclbgc.org . On the website you can see if the company or individual has a license. If they do not have a license, do not hire them!
4. Ask for a resume of the individual who will be supervising the work done on your home. The resume should include the number of jobs which they have worked on before, their formal education (if any), and their experience level. This will give you an idea of how much experience they have and the more experience they have in construction projects, the better.

By following these simple suggestions, you can reduce the chance that you will need a Raleigh construction attorney to help you following a botched job by a builder or contractor. However, in spite of taking actions to protect yourself, sometimes there is no avoiding having problems with your builder. Once the problems have started, I would recommend closely watching the work and making demanding consistent updates on the work. Remember, it is your home and you have a right to check on the progress of the construction! Should you have a Raleigh contractor or builder law problem, please feel free to call me at 919-803-1516 or e-mail me at chris@anglinlawfirm.com at any time.

Andrea Coombes recently wrote an article pointing out a simple yet very important fact: even though men and women have access to the same estate planning tools, they approach the estate planning process – both financially and psychologically – in profoundly different ways.

This is a result of a variety of factors, including:

–          36% of women 65 and older are widowed, compared to 12% of men 65 and older, according to the U.S.

–          In general, women are more likely to live longer than men, as they have a greater tendency to marry older mates

–          Women are more likely to be custodial parents than men

–          Despite recent advances in the last ten years, women on average have a lower lifetime earnings potential than men

–          Women are more likely to suffer from “Sacrificial Lamb Syndrome” – the phenomenon of putting themselves last when it comes to taking care of themselves in their retirement years

Given these factors, Coombes points out that women are ultimately more at risk to succumb to strategies that put them at a financial disadvantage in the future.

 To counteract this, we recommend seven important questions every financially savvy woman should be able to answer when they come to the estate-planning table:

1. What key deadlines apply when a spouse dies?
2. What is a tax dowry?
3. What is the difference between a living will and a trust?
4. Whom can you trust?
5. Who would raise your children?
6. Is there money in the bank?
7. Should you give away assets now to save taxes?

Anglin Law Firm recognizes that since estateplanning often affects women more profoundly than men, it is essential that women take charge of the process and at least be equal participants.  This is why we take every initiative to be of service to women in the estate planning process, ensuring that every client has the knowledge and tools necessary to make informed estate planning decisions for their benefit and the security of their families.

The First Annual Anglin Law Award was presented on March 22, 2014 at Campbell Law’s 37th Annual Law Day. Candidates who applied for the reward were expected to be well rounded in areas such as academics, community service and leadership. The award recognizes the importance of law school students being able to become truly successful attorneys once they have graduated and passed the bar exam. Fiona Steer, a second year student at Campbell Law, was the recipient. Ms. Steer was chosen because of the strength of her application with respect to both academics and her leadership qualities. Below is a link to the posting on Campbell’s website.

http://lawdev.campbell.edu/news_article.cfm?id=42574&t=steer-collects-inaugural-anglin-law-award

As our society becomes more mobile and more dependent on technology, more and more of your lives are stored in some sort of electronic format.  Most people today have at least one email account, photos saved to a computer or posted online, various types of accounts and online memberships, as well as countless amounts of data saved on what is known as “the cloud.”

As our lives and information become increasingly digitized, the estate plans of our grandfathers and fathers become far less effective at managing our assets.   Our assets now not only include tangible items, but also digital assets.  Digital Assets include everything from hardware to social media accounts to online banking accounts to home utilities that you manage online.   Less than 30 years ago, there was no such thing as a digital asset.  Estate plans of yesteryear focused on tangible items like money, real property, vehicles, and jewelry.  While those things are still important today, and warrant consideration when making any adequate estate plan, it is also important to take stock of our digital assets.

Take a look at this example organizer to help individuals understand and organize their digital assets:  http://dig.abclocal.go.com/wls/documents/2014/wls_031414_Digital-Estate-Planning-Questionnaire.pdf.

Once you take the time to make a list of your digital assets through the use of the above form or another method of your choosing, you must decide what you want to do with these assets.  What assets do you want saved or archived, and which ones do you want deleted or erased?  Which assets should be transferred to others? Are there any assets that have extrinsic value? And what should you do with them?

In addition, to deciding what to do with your digital assets, it is important to decide who you want to handle these assets.  The person you designate to handle your digital estate is known as your digital executor.

Finally, these estate plans, should be documented and included or referenced in your other estate planning documents (i.e. a will), and made known to the person whom you name your digital executor.  While digital estate plans are not yet legally binding in North Carolina, making your wishes known about how your digital estate should be handled is becoming extremely important.  The landscape and laws regarding digital assets is as rapidly changing as the technology itself.   As more and more of our lives are conducted in electronic format, it will continue to become increasingly important to manage and plan for these assets.

The third trial of Moral Monday protesters started last Friday, October 25. This trial was different from the first two trials because twelve protesters were tried at once. Unfortunately, the trial did not reach a conclusion and the trial was continued until December 3. Trying twelve defendants at once is an interesting tactic to be used by the Wake County District Attorney’s Office but it may be the only reasonable option they have. There are currently over 800 protesters awaiting trial and the judge who is assigned to the case holds court less than five days a month. Trying one or two protesters at a time was impractical given how long the trials would have taken given that there is only one Assistant District Attorney assigned to try the cases. Here is a link to a story about the trial: http://www.wnct.com/story/23791198/rev-barber-on-trial-friday-for-moral-monday-arrest

I went and sat in on the trial for the last hour of it. There were a number of interesting revelations when the defense attorneys were cross examining General Assembly Police Chief Jeff Weaver. He admitted that prior to the arrest of the defendants in question, he had already called Raleigh Police Officers to assist because there were likely to a large number of arrests. Perhaps most interestingly, it was revealed that the only video footage that was available was of the protesters entering and existing the general assembly. There are cameras in the interior of the building and according to Chief Weaver, that video had been erased due to their policies about video preservation. Their policy is that the video is erased after thirty days. There may have been an explanation as to why the policies are different but I did not catch that.

The Wake County District Attorney’s Office has some tough choices to make in the months ahead. The incredibly slow process of trying the defendants and the news coverage surrounding the prosecutions certainly does not help the DA’s Office in anyway. With the revelation that police officers we already planning for arrests, this opens up a number of defenses that may be asserted by defense attorneys at future trials. It will be interesting to see if these strategies are successful. Another problem facing the DA’s office is that there is a definite possibility of civil rights lawsuit against the General Assembly Police and Raleigh Police Department as a result of these arrests. There seems to be  a question as to whether or not the arrests violated the protesters’ rights to freedom of speech, which could constitute the basis for a successful 1983 claim either in state or federal court.

Also, the revelation that the video had been deleted after thirty days per their policy seems somewhat dubious. All of the video should have been preserved given the highly charged nature of the case and likelihood of there being a trial. Going one step further, if it can be shown in the pending criminal cases or at a civil trial that the video was intentionally erased because what it showed was favorable to the Moral Monday protesters, then any civil case would be even more favorable. At a bare minimum, the intentional spoliation of evidence constitutes grounds for a negative jury instruction. It also can constitute the basis for a civil obstruction of justice claim which has been recognized as a cause of action in North Carolina. Here is a link to the opinion: http://www.aoc.state.nc.us/www/public/coa/opinions/2007/061079-1.htm . There would be issues bringing an obstruction claim against the police agencies due to sovereign immunity but the officers could be sued in their individual capacities if there was intentional spoliation of evidence.  It will be interesting to see what further information is revealed about the video. Come back here for future updates regarding the Moral Monday prosecutions.