FAQs

FAQ’s

PERSONAL INJURY


Question: Have you or a loved one suffered injuries in a car, bike or truck accident, slip & fall, or dog bite?

Answer: At the Frank Law Group, P.C. we understand your concerns and the complex issues involved. Being in an accident or getting injured through no fault of your own is traumatic enough. What makes us different is we know how the insurance companies operate because many of our lawyers previously worked for them. Our combined 80+ years of experience and knowledge of the court system and the mindset of insurance companies allow us to cut through the red tape to ensure you receive fair compensation for all past, present and future damages, including medical care, property damage, wage losses, and pain & suffering. People who retain experienced legal counsel generally receive far higher settlements or awards than those who don’t.

Question: If I’m in an accident, what should I do (and not do) at the scene?

Answer: Immediately after an accident, there is a rush of adrenalin, and the shock of “OMG! What do I do now?” First, DON’T get out of your vehicle. Make sure you are not posing a further hazard to other motorists. If you can, move your vehicle out of the roadway when it is safe to do so. Second, if there are any injuries call 911 to report the accident. Third, unless you’re seriously injured, exchange insurance, license and address information with other drivers and police officers, and take photos of your vehicle and any other vehicles involved, and of the scene. Fourth, promptly seek medical attention for any injuries and follow your doctor’s recommendations. Don’t delay medical treatment. Fifth, notify your insurance company and save the information obtained at the scene. NEVER give a recorded statement to, or accept a quick settlement from, an insurance company without first consulting an attorney who handles personal injury cases.

Question: What happens if the person who caused the accident has little or no insurance?

Answer: One out of every three drivers in California uninsured or inadequately insured. These uninsured or underinsured (UM/UIM) drivers typically drive the most unreliable and unsafe cars, and are the least careful. That’s why half of all auto accidents are caused by UM/UIM drivers. UM/UIM insurance coverage is designed to compensate you for a loss which you sustain, and which is caused by a driver who is uninsured or inadequately insured. Your insurance company is required by law to include UM/UIM coverage with your auto policy, unless you specifically decline it in writing. This coverage is sometimes declined in an attempt to keep premiums down, though the cost is minimal. Don’t ever decline it! Also, make sure the amount of coverage is at least equal to your liability limits. And, your liability limits should at least equal your net worth. Although the financial responsibility laws in California permit liability policies with limits of only $15,000, that amount is woefully inadequate if the accident involves any significant impact at all. The bottom line is make sure you have UM/UIM coverage in an amount that matches your liability limits.

Question: If I’m in an accident and make a personal injury claim will I have to go to court?

Answer: In most situations, no. The majority of cases, especially where the cause of the accident is not in dispute, settle before trial. Less than 5% of all auto accident cases in California go to trial. If the At-fault party’s insurance company pays what your attorney believes your case is worth, and you wish to settle for that amount, then your case will not go to trial. Where liability is in dispute or the claimed injuries and associated damages are disproportionate to the severity of the accident, the insurance company for the party sued will more likely force the injured party to go to trial. Hiring an experienced personal injury lawyer is the key.

Question: What law applies in regard to liability for causing a motor vehicle accident?

Answer: Claims arising out of motor vehicle accidents are governed by the law of negligence. Motorists are required to operate their vehicles with “reasonable care under the circumstances.” A failure to use reasonable care is negligence and a motorist who operates his/her vehicle negligently may be required to pay for any damages caused by their negligence. All claims arising out of motor vehicle accidents have two primary issues: one, identifying the negligent driver, and two determining the extent of the injuries suffered by the injured party. The injured party, called the “plaintiff” in the lawsuit, must prove (1) that the defendant was negligent, (2) that the negligence was the cause of his/her injuries, and (3) the amount of damages suffered, both special damages (such as medical expenses, wage losses, and property damages), and general damages (namely, pain and suffering, loss of consortium, etc.,).

Question: Involved in an accident not caused by another driver but other factors, what are my options?

Answer: In certain cases, accidents are caused by factors unrelated to the conduct of any particular driver. For example, an automobile accident may occur due to a defect in someone’s vehicle. In such a case, an automobile manufacturer or supplier may be responsible for injuries caused by a defect in the automobile under product liability law. A product liability suit is a claim brought against the seller of a product for selling a defective product that caused physical injury to a consumer, user or other third party. If a manufacturer of a product creates a defective product – either in designing, manufacturing, or labeling the product – the manufacturer is liable for any injuries the product causes, regardless of whether the manufacturer was negligent. Other factors, such as poorly maintained roads and malfunctioning traffic signals can also contribute to cause an accident. Improper design, maintenance, construction, signage, lighting or other highway defects, including poorly placed trees and utility poles, can also cause serious accidents which may require suit against governmental entities.

Question: Am I liable for my teenager’s bad driving?

Answer: Yes. If you sign your child’s driver’s license application, you are responsible for the child’s driving indiscretions. But you do have the right to revoke your consent. If not revoked, your liability continues until your child’s 18th birthday. Secondly, if you allow your teen driver to drive your car, you are responsible for the child’s negligent operation of your vehicle. However, in both cases, under California law, the parent’s liability is normally capped at $15,000 per person or $30,000 per accident; but there are exceptions, such as when the child is on an errand for or employed by the parent, or there has been a history of bad driving, including accidents involving the child. The moral of the story: make sure you have adequate insurance (at least equal to your net worth) to protect you and your children in the event of an accident.

Question: Are Employers Liable for the Negligent Acts/Omissions of Their Employees?

Answer: Suppose you get run over by the pizza delivery driver while he’s going or coming from a delivery. Is the owner of the pizza joint liable? Generally, yes. In this example, both the employee and employer are liable for your injuries/property damage under California law. Under California law (and that of most -if not all-other states) employers are liable to third parties for the negligent acts and omissions of their employees where those acts or omissions occurred during the “course and scope” of their employment. In legal terms, this is known as “respondeat superior “or “vicarious” liability. Respondeat superior is a Latin term that literally means “Let the superior respond.” The reason for this rule of law is that our justice system favors compensation for injured third parties because the employer can protect itself (and its employees) with liability insurance and recoup the premium cost through the prices charged for its goods and services. In practice, it means that if you are injured by an employee, you can usually sue the employer as well as the employee.

Question: If I’m injured by a federal, state or local governmental entity or employee, can I pursue compensation?

Answer: Yes. If a governmental entity or employee violates your rights, or is responsible for a death, physical injury, or property damage, you can file suit against that agency and the responsible employee(s). An injury of this type is called a “tort,” and is controlled by the California Tort Claims Act. The Act normally requires that a written claim be filed with the responsible governmental agency no later than 180 days after the incident. That must be done before any lawsuit can be filed. The six month deadline is very strict, and because it is far shorter than the normal two-year deadline for filing a personal injury lawsuit, it is a huge trap for those unaware of this requirement.

Question: Must a dog owner know of its dangerous propensities before he or she can be held liable for a dog bite?

Answer: No, at one time California law allowed a dog “one free bite” before its owner could be held responsible for injuries from a bite. However, with the increase in population and frequency of dog attacks the law was changed. If you are bitten by someone’s dog, the owner is “strictly liable” for your injuries pursuant to California Civil Code section 3342. In other words, a dog bite victim does not have to prove that the owner was negligent in controlling his or her animal. If someone’s dog bites you, they are liable for your injuries, period. The strict liability “dog-bite” law is designed to prevent dogs from becoming a hazard to the community by imposing a duty of care on every dog owner to prevent his or her dog from biting people.

REAL ESTATE/FORECLOSURE


Question: How long does the real estate foreclosure process take?

Answer: A minimum of 4-5 months after the process begins. The process begins once a Notice of Default (“NOD”) is issued and recorded against the property. However, it can be several months and in some cases over a year after a borrower first stops paying before the NOD is issued and recorded. The delay is because lenders are required to make good faith efforts to communicate with delinquent borrowers before the law allows them to commence foreclosure proceedings. Moreover, because so many mortgages are in default, lenders and foreclosure companies have tremendous backlogs, so it is simply taking longer to start the foreclosure process. Once the NOD is issued and recorded, the borrower then has 90 days in which to get the loan current. If the loan is still in default at the end of 90 days, the lender then issues, records and posts on the property a Notice of Sale (“NOS”), which designates the time, place and manner of the sale, and also shows the unpaid balance of the loan and foreclosure costs. By law, the sale cannot occur any sooner than 20 days after the NOS is posted on the property. Several strategies are available for minimizing the impact of foreclosure on your life.

Question: Is it reasonable to ask for a loan modification which lowers your loan amount to the current fair market value of the property?

Answer: No. That will not happen. Common sense says a lender will do better financially to re-write the loan down to the property’s current fair market value. After all, if the lender forecloses, the property will only sell at the current fair market value. After a 5% or 6% sales commission, and management expenses to get the home ready for sale, it sure seems like a lender’s bottom line is best served by cutting a deal with the borrower based on today’s economics. So what gives? Two things: banking regulations which set minimum reserve and asset/liability standards, and upstream investors (i.e., mortgage pool investors like the big investment banks who are now suing home lenders over selling them non-performing loans). The fact is, the system is stuck and in bad need of an enema of common sense! In the short term banks would fail, but in the long term the plunge in property values would stop since less homes would flood the market (whether through foreclosures or short sales).

Question: Can a short sale occur after the Notice of Default is recorded?

Answer: Yes, but be careful if you’re an investment buyer (i.e., someone who won’t be residing in the property after the short sale). “Investor Buyer Beware!” The foreclosure process does not formally begin until the lender issues and records a “Notice of Default and Election to Sale.” It’s an intimidating legal size document with bold black lettering. Once issued and recorded, the approximate four-month foreclosure process formally begins. Importantly for investment buyers, once the formal foreclosure process is underway, other laws come into play which, in certain circumstances, give the seller the ability to rescind the sale later. These laws (which provide sellers with a five-day cancellation right) were designed to protect against unscrupulous “equity purchasers” who (up until the housing crash) would try to buy the defaulting homeowner’s equity for pennies on the dollar. But those laws could also be applied in the case of a short sale where the buyer is an investor. So, be careful out there!

Question: After a short sale, am I still liable to the bank for the remaining unpaid balance?

Answer: No. If you sold your home (or residential rental property) through a short sale (where the lender agrees to accept less than the amount owing on your loan in order for a sale of the property to occur), your lender is now prevented from coming after you later for the unpaid portion of the loan under a new law that took effect on January 1, 2011. On July 15, 2011, this protection was extended to “junior” loans, such as home equity loans. The new law also prevents lenders from conditioning the shortsale on the borrower “kicking in” more money to increase the lenders net from the shortsale. But, lenders are not required to do shortsales; they are, however, very motivated to do them since they usually net more than if they have to foreclose, take the property back and sell it themselves.

Question: Can I short sale my home to a relative or friend and get the property back later?

Answer: Not without potentially serious consequences. Banks require sellers and buyers in short sales to represent “under penalty of perjury” that they are not related to each other, nor are they doing the transaction with the intent of later transferring the property back to the borrower (i.e., the short sale seller). Because short sales are relatively new, no court case has addressed this scenario. Suffice it to say, however, that any kind of arrangement where the short sale borrower (i.e., seller) ends up with the property after the short sale runs the risk of being sued (along with the short sale buyer) for fraud by the lender. Nevertheless, the likelihood of such an action is probably minimal. After all, how has the lender been damaged? If the short sale didn’t go through and the lender foreclosed instead, it would have probably received less money than what it received through the short sale, the price for which is always based on the property’s fair market value at the time of the short sale.

Question: Knock, knock….Who’s there? Your equity home loan lender!

Answer: Walking away from a home that’s financially underwater or has been foreclosed upon is depressing enough. But for your lender to come after you later wanting more is like being kicked when you’re down. That’s what many former home owners are facing now. Unlike loans obtained to purchase your home, equity loans used to improve the home, pay for college, or pay off other debt do not go away after the home is foreclosed (unless it’s the equity lender who foreclosed). More often, it’s the purchase money (“senior” or “first”) lender who forecloses, wiping out the equity lender’s security against the property. The equity-lender debt, however, remains as an ongoing obligation of the borrower. But if the equity lender consents to a shortsale, the borrower has no further liability after the shortsale (unless the borrower committed fraud in getting the loan or trashes the property when moving out).