Privity and the Ties that Bind...

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As a business owner myself, I completely understand the frustration of not getting paid! Or, still better -- being the sub-contractor on business contracts that for reasons not related to your conduct, the prime does not get paid, and so YOU don't get paid.

We at Hanover Law are business lawyers (among other things!). Payment is often the number one reason why clients come to us with business disputes, and the first discussion Hanover Law has with them -- are you in privity?

As a concept, privity stems from the root word "privy" meaning, "to be a party to". Privity developed as a formal legal doctrine in the mid-1800's in England as an attempt to define why, without consideration, a third-party had no rights in a contract (i.e. "privity" was the term coined to describe this state). While there are some clear exceptions to the rule of privity, essentially, the original meaning still stands.

An example of "in privity" would be:

ABC Company signs a contract with Parent Company to produce 1000 widgets. ABC fails to produce the widgets, so Parent company refuses to pay. ABC sues Parent claiming their failure to perform was caused by negligence on the part of Parent.

This example has both Parent and ABC in privity of contract (i.e. parties to the contract) and, as such, each party may correctly bring action to enforce the terms or agreements stipulated in the contract, or bring action in equity or at-law for damages stemming from a breach.

An example of "no privity" would be:

ABC Company signs a contract with Parent Company to produce 1000 widgets. Florida Firm completes the widget order and sends the product to Parent Company per instructions from ABC. Parent Company decides NOT to pay ABC Company for a non-defenseable reason. ABC Company fails to pay Florida Firm, siting Parent's failure to pay ABC, but refuses to sue Parent Company for fear of losing future business. Florida Firm sues Parent Company to make them pay because ABC Company won't.

While Parent Company and ABC are still in privity, Florida Firm is NOT in privity with Parent Company. Therefore, a suit by Florida Firm against Parent Company fails.

Frequently, privity problems create very awkward situations. In the case of the example above, it is completely reasonable to assume that Florida Firm had a good and long term working relationship with ABC Company. However, if Florida Firm can't sue Parent Company for not paying -- who must they sue? You got it -- they must sue ABC, the company with which they DO have a contract. This creates tense situations between long-time suppliers and trusted accounts. If Florida Firm sues ABC, then ABC would have to sue Parent Company to get the money back they owe Florida Firm.

Follow the paper! The trick to understanding privity is to follow the business contracts. With whom does each party have a written agreement? While this is not always the only indication of privity, it is an excellent starting point. To claim a breach of contract, you must show privity. Generally, to show privity, you must show a contract between your company and the individual or firm that breached the contract.

It is possible to use the concept of privity as a defense in a tort action (specifically negligence). However, most jurisdictions have depreciated this use, citing to the standard established by Judge Cardonozo in the early 20th century where conduct that is "foreseeable" as effecting this plaintiff is sufficient to overcome the burden of privity (the test is a little more complicated, but is but summarized as "foreseeable plaintiff").

If you are currently under contract and have a dispute, let us help! We're business lawyers. Get a business attorney on your side. You may reach us at 703-402-2723. We're happy to help, and your first call is always free.

Sean R. Hanover, Esq
HanoverLawPC.com
Contact UsVisit the Hanover Law firm at www.hanoverlawpc.com

I'm married to a US Citizen -- What Happens Next?

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Marriage is a wonderful thing -- but how does it effect immigration law? Legal status? LPR (legal permanent resident or lawful permanent resident) and work status (EAD -- employment authorization documentation)?

It is important to remember that immigration is roughly divided into to sections -- innies and outties. Alright, perhaps the simplistic description is misplaced here, but the concept is the same. Are you inside the country, or outside the country? If you are outside the country, the process is I129F, I130, K3 (spouse). If you are inside the country, the process is I130, I485, and if illegal, I601 (waiver/hardship -- tricky here, as there are proposed rules changes with the 601/601A).

What are all these "I" forms, and what do they do?

First, "I" stands for "Immigration" and designates a type of government form related to USCIS (United States Customs and Immigration Service). You will occasionally also see EOIR forms (Executive Office of Immigration Review -- that's the immigration court), and DHS (Department of Homeland Security) or DS (Department of State) forms. However, for today's discussion, we're only focusing on "I" forms.

The I130 is arguably the most important form of the "spousal" immigration group. It notifies USCIS that a US citizen or LPR (green-card holder)has a family member (in this case, his/her spouse) that is eligible for entry into the US. By itself, the I130 does nothing. However, without the document, nothing else can be done to convert a non-immigrant status to an immigrant (i.e. wants to stay permanently) status.

An I129F is filed to request that a foreign national, currently outside of the United States, be granted a "K" visa. K visas permit finances (K1), family members (K2), and spouses (K3) entry into the United States for a set duration (in the case of a K3, the amount of time is 2 years, and includes permission to file an I765 once in the country to permit work). An actual "K" visa is not a form. It is a stamp/processing placed inside the foreign national's passport indicate the type of entry permitted. The form required is the I129F (F = Fiance, however, it is used for K2/K3 visas, also) filed by the US citizen/LPR. Once approved by USCIS, it is forwarded to the consulate in the area where the fiance/family member/spouse resides, and the fiance/family member/spouse can then contact the consulate to setup and interview and background check. Once they complete the interview and background check, the family member/fiance/spouse's passport is stamped, and they may enter the US under the immigrant visa classification "K".

Next blog will discuss the "in country" (innies!) processing of family members/fiances/spouses.

Have an immigration law question? Ask us! This is something we do everyday. From simple phone discussions to complex immigration court litigation. We're here to help -- and your first call is always free.

Sean R. Hanover, Esq
HanoverLawPC.com
Contact UsVisit the Hanover Law firm at www.hanoverlawpc.com

Stopping Deportation - Difference between CAT and ASYLUM type relief

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Admittedly, this is an odd title for a blog post. However, the focus of this entry is tactics -- and it is not just limited to removal proceedings. Specifically, this post will cover the difference between ASYLUM and WITHOLDING relief/submissions and CAT/TPS claims.

The key difference between the two groups is focus. A CAT (Convention Against Torture) and TPS (Temporary Protective Status) claim focuses NOT on the client or alien, but rather on the state of the country from which he/she comes. What are the conditions of the home country? Would the alien likely be tortured or killed if they returned? Is the country listed on the TPS register (State Department)? Whether the fear or torture is reasonable or not, or whether this particular alien is well founded in his or her fear has much less weight.

A brief note about TPS and CAT: TPS is not so much a defense, as it is a request by an alien, already present in the US, to be allowed to stay while conditions in his home country are bad. Determination of which countries qualify for TPS classification is made by the State Department. CAT is a defense application. It is made in front of an immigration judge using form I-589. This requests the judge not deport the alien because, if returned to his home country, the alien would be subject to murder, torture, or other bad acts perpetrated by the government, as a result of his belonging to a protected group. No evidence of prior bad acts against this alien is required in either TPS or CAT (although it does help).

Asylum and withholding are a different kettle of fish. Asylum requests, made before or during the pendency of an immigration trial, require a well-founded fear on the part of the asylum seeker. This fear must have credible roots in the past experience of the alien; his/her fear must stem from prior events, or situations in which the alien was directly involved, or directly threatened. Asylum is "alien"-centric. Additionally, asylum is only available to individuals of good moral conduct. Those with certain types of criminal convictions (called aggravated felonies)are barred from asylum relief.

Withholding is only available during an immigration trial. It is a request to the judge to "withhold" deportation (removal) because of the alien's "reasonable fear" of returning to the alien's home country. This is a lesser standard than the asylum "well founded fear", and is designed to cover a much broader category in immigration defense. An immigrant who is granted "withholding" by a judge may apply for work authorization, but may not adjust status to LPR (green card holder), and may not bring family members with him/her (called derivative status) -- which makes withholding a much lesser step-child to asylum.

Hanover Law can help in determining which relief you qualify for -- before you are detained by ICE OR if you are already in removal proceedings. Do NOT sign any documents from ICE without consulting with us first! If detained, DO NOT agree to any plea until you speak with us. A poor choice of words, or the wrong signature, can cause horrible consequences, and prevent many of the types of rlief discussed herein from applying to you.

We at Hanover Law have been working with just these types of immigration cases for some time. We are sensitive to the frightening and often bewildering nature of the immigration process, and we can help you understand what is happening, and the best steps you need to take.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S
Sean R. Hanover, Esq
HanoverLawPC.com
Contact UsVisit the Hanover Law firm at www.hanoverlawpc.com

Lost Entry Document (non-EWI proof!)

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Occasionally we get an immigrant/alien in our office who was admitted to the United States legally, but is still considered EWI (entry without inspection) by the government. For those new to the immigration law arena, EWI is a criminal act. A double EWI can lead to a permanent bar from the US, and a single EWI can bar any change of status while in the US, and prevent entry (via visa) into the US for up to 10 years. Theses are serious consequences!

The burden on proving lawful entry into the US rests with the alien. He/She must show a valid I-94 stamp or document in his/her passport to rebut the presumption of illegal entry. What happens if you enter the US and don't get an I-94? Happens all the time. Most common example is Canada. Cars are frequently passed through the border crossing with only a cursory glance at ID or passports -- especially if one of the members in the vehicle is a US Citizen. Entry through a valid border -- even if just waived thru by the CBP (custom and border patrol officer) is a valid entry and not EWI.

To fix the problem, we use a form I-102. An expensive solution, but effective for obtaining an I-94 when you entered AT A VALID BORDER CROSSING, but did not receive an I-94. The processing fee is ~$350, and requires evidence that you were there. Usually an affidavit from other passengers in the care is sufficient to provide the evidence needed. Processing is roughly 90 days from submission (although, if can take significantly longer if USCIS loses your paperwork).

It is VERY important you contact a lawyer prior to submitting your I-102. You will want a G28 to accompany your paperwork to ensure nothing gets lost, and you will want an attorney to review your submission PRIOR to mailing, to ensure you aren't missing anything.

Hanover Law has been managing immigration matters for some time. We have extensive experience with just about every aspect of immigration practice -- including I-102 and lost I-94's. We can help! Contact us to setup and appointment, or to speak with one of our attorneys on the phone.

S

Sean R. Hanover, Esq
HanoverLawPC.com (Immigration page)
Contact UsVisit the Hanover Law firm at www.hanoverlawpc.com

I want my money! What do I do? (What to do when you are not paid)

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This has been an interesting week for civil trials at Hanover Law. A common theme was - "I want my money, bitXX!" (ahem). Namely, how do you collect money owed to you for work done?

First, let me caution you that obtaining a lawyer to go after money that is owed to you is often not a good idea. We attorneys tend to charge a minimum of $1500 to go to trial, and unless you can expect to get at least double that, a civil suit to collect money is likely a bad choice. A good attorney will always discuss whether a suit makes sense for you -- and be sure to ask about fees and the likelihood of success. Oddly, hand-in-hand with this, we have had to turn down clients that absolutely wanted to sue, even if they would lose money doing it. Revenge and anger are poor motivators for legal action. NOT because they can't be legitimate and proper, but because they tend to cool llloonnnggg before trial is ever had. As such, the client wakes up 6 months into the battle, only to realize they are paying a lot of money for legal representation and will likely get nothing but some form of visceral satisfaction at the end (i.e. no money!).

So how can you collect? The proper procedure is (1) demand letter, and (2) small claims court. You are the creditor (the person owes you money). The person who owes you money is called the "debtor". Initially, you need to contact the person that owes you money. Ask them politely to pay you what they owe. Give them 5 business days. If that fails, send them a letter (demand) indicating the amount due, the reason for the amount, the conversation you had on the phone, and your intention to sue them if they fail to pay. Give the debtor 15 business days (three weeks) to pay. If that fails, pay $75 to the clerk of the district court, and file a small claims action against the debtor.

On the date of the trial, go to small claims court and present your case. Small claims is very informal -- you are not bound to any rules of evidence, and the judge is free to discuss the case openly with you and the other party. The judge will encourage you to try to settle with the debtor first. That might mean accepting less money, but getting paid immediately. Or perhaps you will need to finish what you started and the debtor will pay the court. When you complete, the court will pay you (called a bond). If you can't settle, the judge will hold an informal trial. Each side will be able to show why it should prevail. Be sure to bring your evidence!

Evidence includes things like bills, hours on the job, proof of work, or a contract.

If the other side does not show up -- then ask for a default judgment. This allows you to win automatically once you show sufficient evidence to prove a valid claim.

After you have a judgment, you write to the debtor again. You ask them to please pay the judgement, or you will place a lien on their property. A judgment lien may be placed against the debtor's house, car, or other real property. That last step is a little tricky, but a quick call to a local attorney can be helpful at this stage -- and since the trial is now over, the cost is significantly less.

If you have an outstanding amount that is owed to you -- contact Hanover Law. We can discuss ways you can help yourself in small claims court, or if the amount is sufficient, we can help win the case for you. We also specialize in collecting on judgments. While this service is not free, we have an excellent collection ratio!

S

Sean R. Hanover, Esq
HanoverLawPC.com
Contact UsVisit the Hanover Law firm at www.hanoverlawpc.com