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Monday, July 26, 2004

If you recieve a Governor's pardon on a criminal conviction in North Carolina,
1. Does it still show on your criminal record?
2. Can it still be held against you as a conviction in a later criminal matter?
3. If you are ask about your criminal record by an attorney while on a witness stand, do you have to answer yes to the pardoned conviction?
 
In 1867 the North Carolina Supreme court wrote about the pardon power:
It is the gracious act of the government towards its erring subjects. It is the most amiable prerogative of the government. Law cannot be formed on principles of compassion to guilt. The rugged task of condemning and punishing is for the courts. The gracious act of forgiving is for the crown.
A pardon blots out the prior offense and all consequences flowing from it.  The answer to questions 1 and 2 is clearly "no."
As far as I can tell no North Carolina Court has considered whether a truthful answer to requires a witness to admit a conviction that has been pardoned.  That would be a close question.
7:25 am pdt

Wednesday, July 21, 2004

My question is I was let my friend use my computer to open an online billing account with her cellular company, but after she opened her account she opened an account for her estranged husband. When he went to open an online account the cellular company told him he already had an active account. So he went to the police to file an identity fraud report. He called my friend and told her she needed to make sure she didn't have any of her accounts messed with and he told her he filed a report and she freaked and told him she was the one that opened the account (the only reason for the account being open was to check to see if he was having an affair with one of his co-workers. Which he was!)? (The account was opened in March 2003); He told her it was in the federal courts hands and that he would try to drop the charges if she would take him back, so she took him back out of being scared. Can the Federal Courts continue to press charges on her if he dropped it? A couple of months later they split again and are now going thru a nasty divorce. Her ex-husband called me the other day and asks me my involvement in letting her use my computer and I told him it was my computer. He said he was not going to involve me in this but I feel he is because he told me that the Federal Courts Systems turned it over to the NC State Courts Systems and they were going to press charges against her for the identity fraud or in better terms it was in there hands and he was not sure what they will do.  Since it has been over a year and the Federal Courts done nothing would the State Courts come back and do anything to her or me for letting her use my computer.  Please let me know !!! I'm a single parent an need some advice about this problem and how it could effect me.

Just letting a friend use your computer without any knowledge that she is using it to open accounts in someone else's name, does not make you a participant in identity fraud.

Often in nasty divorces spouses threaten to do all kinds of things to each other: sue boyfriends or girlfriends, "get" them for abandonment, wreck their credit, or seek sole custody of the kids.  99% of the time these threats are empty.  I would not worry about charges being brought unless that happens.

You also mention "dropping the charges."  It is a popular myth that a crime victim can decide not to press charges or drop charges after reporting that to the law enforcement.  That is 100% incorrect.  Prosecutors have nearly unbridled discretion in who to charge with a crime.  For example, there was no victim pressing charges against Martha Stewart, the government made the decision to prosecute her.  A victim might ask the prosecutor not to pursue a case, but the prosecutor can decide to go ahead anyway.  Unwilling witnesses can be forced to appear and testify by subpeona.

By the way, your friend probably committed several crimes if she established a cell phone account in someone else's name without their permission.

6:07 am pdt

Wednesday, July 7, 2004

I'm in California, looking for a site like this to no avail. Very impressed by yours so I thought I'd take a shot. My problem is this: I co-signed for a car for my then girlfriend of two years back in march of 2001. All was good until December when she totaled the car in a freeway accident (her fault). then I find out her insurance lapsed ... We eventually went separate ways soon after. Unknown to me at the time, she intercepted the important mail and such while I was at work, including hand delivered court papers to me. ... Anyway now my wages are being garnished for the full amount, she's driving a 2002 Pontiac she's paying $400.00 month for is working steady got a new apt.  and I can't make my rent. can she get out that easy? I realize I'm obligated to pay. Can't her wages be garnished too? I've found out I'm not the first sucker she conned and apparently not the last. ... I may have to sell my car to get out of this mess.
 
There is a great line from an otherwise forgettable song, "She got the gold mine, I got the shaft." I can't put it any better than that.  Co-signing, as you have learned, obligates you to pay the full amount of the debt.  Co-signing is a promise to the lender that says, if she does not or cannot pay, I will.  That is what happened here.
The fact that she kept you from learning that you had been sued could be a basis to have the judgment set aside, but the lender would still be able to eventually enforce your promise to pay.
Some states do not permit garnishment to collect this type of debt, North Carolina is one of them.  The debt might be dischargeable in bankruptcy.
No one should co-sign an obligation unless he is prepared to assume full liability for payment of the debt.
5:55 am pdt

Tuesday, July 6, 2004

I recently left my husband and moved in with a friend. In addition to generally not wanting to be with him anymore, I found out he has been cheating on me with another woman for over three years, and another woman for a few months in addition to the first one.  I asked him to sell our house but he is refusing and he can't make the payments. He is trying to use this as a way to force me to stay with him.   Is there any way to get my name off of the house? I don't want my credit destroyed!
 
I get a lot of questions such as this one, by e-mail and in person.  Here is a brief run-down of the issues.  When a married couple separates, each spouse has some potential claims.
  • Child support: If there are children the parent who has the children can seek child support.  If the parties cannot agree on who should have custody of the children they will have to go to court and a judge will decide which parent the children will live with.
  • Equitable distribution:  Things that either spouse acquired after marriage but before separation are considered marital property.  There are some exceptions, such as inheritances.  Either spouse can file an equitable distribution action asking the court to divide the property between the spouses.  Usually assets will be divided equally.  Debts can be marital as well and divided along with the property.
  • Alimony: A spouse who is dependent on the other spouses income to meet living expenses can ask the court for alimony.  Alimony usually comes in the form of a monthly payment from the supporting spouse to the dependent spouse.
  • Third-party claims: A civil suit seeking money from the person your spouse cheated with.  These are called alienation of affection or criminal conversation cases.

Since your question involves a mortages, I'm not going to get into child support or custody.

You could sue your husband for equitable distribution.  The mortgage must be paid in the meantime or the lender will foreclose and there will be no property to divide.  It usually takes more than a year for an E.D. case to make it through the system.  You could sue your husband for alimony, but if he does not have a substantial income you probably won't get much.  You could sue the women your husband cheated with, but if they don't have substantial assets, you could be wasting your time.

You would need an attorney for an E.D., alimony or third-party claim.  You can expect to pay at least $2500 and likely substantially more in attorney fees.

If your husband will not put the house up for sale and won't pay the mortgage, there is nothing you could do except pay it yourself or accept that the house will be a foreclosure.  A foreclosure won't help your credit, but it is not the end of the world either.  Short of  a sale, payoff or re-finance there is no way to "take your name off" the mortage.

6:38 am pdt

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The owner/operator of this website is Bryan Gates, an attorney in Winston-Salem, N.C.  E-mailing a question to a website (even a cleverly designed website) is no substitute for live, in-person contact with an attorney if you have a legal problem.  In order to avoid legal troubles of my own, I cannot answer questions about the laws of states other than North Carolina.  For more information about The Law Guy, check out:

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