The answer to this question depends. If you directly own the property which you’re trying to evict someone from, the answer is yes you can act as your own eviction lawyer. However, if you run a residential rental business and your property is owned by an LLC or other business entity that isn’t you personally, the answer is a deep and resounding NO.
The same is true for someone who is trying to evict someone from property that is owned by a trust, even if you are the trustee, one of the beneficiaries of the trust, or both.
In Arkansas, people are allowed to proceed in court on their own behalf, meaning you can be your own lawyer even if you don’t have a law license (they call this “pro se”). The law considers LLCs, other business entities, and trusts to be separate entities from the people who own them. That means that if you are the only owner of an LLC that owns residential rental properties, you technically don’t own the rental properties directly, and so you can’t act as your own eviction lawyer to try and evict someone from one of those properties.
Again, the same thing is true of someone who is the trustee of a trust. You don’t own the properties in the trust, the trust technically does.
If you are trying to evict someone living in property owned by an LLC, another business entity, or a trust and you file the complaint, you are engaging in the “unauthorized practice of law.” Since you’re filing the complaint on someone else’s behalf (the LLC’s or the trust’s), you’re technically representing someone else even though you may be the only owner of the LLC or one of the beneficiaries of the trust. I know, it seems stupid. Even though the company or trust is what some people might call a “legal fiction,” meaning it doesn’t exist out there in the real world, it definitely exists for the purposes of taking legal action.
The main consequence of practicing law without a license is that anything you file with the court is considered a “nullity.” That means it gets treated by the court as if it doesn’t exist. The consequence of this is pretty staggering. It means the judge can’t give you what you asked for and you wasted your time and money writing a complaint and paying a filing fee and other court costs. Then, if you still want to get the person evicted, you have to hire an eviction lawyer and start the process all over.
There are good reasons for this. Lawyering ain’t easy. Even when people are technically allowed to act as their own eviction lawyer, they don’t have the training they need to mind the fine details of practicing law. While you can definitely look the law up, the rules of civil procedure are technical and unforgiving. Cases are won and lost every day on technical issues that have nothing to do with whether you’re actually entitled to get what you ask the court for.
I’ve seen pro se individuals lose eviction cases because they didn’t properly serve the person they were trying to evict. In every civil case, you have to follow specific rules for delivering a summons and a copy of the complaint to the person you’re suing. It has to be mailed in a specific way or delivered by a specific person, and if you don’t do that, it doesn’t matter that the person actually knows they’re getting sued and shows up to court on the day of the hearing.
You read that right. You can notify someone in reality that they have to show up to a hearing to avoid getting evicted, but if you do it the wrong way and they still show up, the judge can’t evict them because you don’t have “good service.”
So, the best thing to do, even if you own the property yourself, is to get an eviction lawyer who knows how to do evictions. The good news is that they’re cheap. Instead of wasting your precious time and money, give us a call and let one of our experienced lawyers do it the right way the first time.
Wilson and Haubert offers a unique service to landlords, property management companies, and other owners or managers of residential rental property. For a low monthly fee, we will (as needed) review your real estate purchase agreements, form LLCs, review and revise management agreements and leases, review advertisements for FHA compliance, and meet with you on a semi-annual basis to discuss other legal issues arising from your rental business. If you have an ongoing need for evictions (unlawful detainers), we can also make that part of your monthly fee or do them separately on an as-needed basis. Click here to be connected with an attorney who can explain the finer details of this program.
The Arkansas Board of Parole (the Parole Board), reviews thousands of cases per year. Most of these cases are decided by a few documents and a brief hearing (5 to 10 minutes).
Your loved one is a person, a person that deserves a second chance. Reading about a bad decision or period of life problems and a few minutes of discussion may be the only opportunity the Arkansas Board of Parole has to consider if they will grant parole. Someone should be present to show the PERSON behind the ADC inmate number.
There is another story to tell, one that presents your loved one as the person they have become, the skills that will help them succeed and the family and friends that are waiting to help them be successful. This story needs to be heard and it needs to be effective.
If you or a family member are facing a parole hearing, our team can prepare an effective case on your behalf. Contact us as soon as possible, so we can work together to build an effective story.
In the meantime, here is a review of the Arkansas Parole Hearing process, from the Arkansas Parole Board’s view. You can see there are many obstacles and opportunities for failure and improvement. We’ve pointed out a few spots in italics.
Note, the Arkansas Board of Parole Policy Manual states “Attorneys will be offered preference to be moved to the top of the docket.” One more reason to consider hiring an attorney.
The inmate receives written notice of the hearing before a personal interview with the Institutional Release Officer (“IRO”) at their unit. This interview is to
(1) notify the inmate of the hearing,
(2) have the inmate sign:
(3) for the IRO to review the inmate’s parole plan (what the inmate will do when released)
A parole plan should be completed BEFORE potential hearing dates.
(4) provide any Form 153’s
These are recommendations from sheriffs, judges, and prosecuting attorneys.
Hiring a criminal defense attorney to counter negative 153’s can be an important factor in success
(5) to answer the inmate’s questions about parole.
Before the hearing, Institutional Release Services staff will prepare the State’s parole file.
The State must follow certain procedures and the file MUST have specific documents and information. Our team will review and question whether the process was followed.
The parole file must have:
Do you know what is needed or if anything is missing?
Remember, your responses to 153 issues are important.
Our attorneys will help build effective support statements.
Your parole plan is critical, and we can help you build an approvable plan.
Board members receive the file prior to the hearing, for review and use during the hearing.
Your 5-minute hearing may seem like the first time the file has been reviewed.
State law prohibits staff from releasing State criminal justice records to inmates.
When confidential information is used for a decision, the Board member should tell the inmate that confidential information is being used. Was confidential information used?
Each inmate may invite a representative to attend and speak on his/her behalf at the Board hearing.
There is no limit to the number of visitors an inmate may invite to the hearing. Visitors are not required to be on the inmate’s Visitation List but must be eligible to be on the List.
The Board may limit presentations to just one visitor in addition to the inmate or their representative.
In most cases, only one visitor has a chance to speak because the hearings are brief.
Release or discretionary transfer may be granted to an eligible person by the Board when, in its opinion, there is a reasonable probability that the person can be released without detriment to the community or him/herself.
The Board must consider a list of specific factors when a determination is made.
An experienced attorney will review and prepare your case to ensure these factors were considered and your side of the story was presented effectively.
Most Arkansas parole hearings are conducted without attorney involvement and showing up without an attorney rarely, if ever, improves the outcome. Our attorneys are experienced at developing compelling stories that present people as-a-whole, not a conviction record and administrative paperwork
When a second chance is at stake, it is time to present the story of a person, not a number. The team at Wilson & Haubert is honored to help write that story. Please contact us today if you or a loved one are facing a parole hearing.
Arkansas is currently one of the friendliest states in the Union for residential landlords. This has made our state one of the best in the country to invest in residential real estate and has produced a large industry of real estate investors and house-flippers.
However, because of the strong trend nationally granting tenants more rights in their dealings with residential landlords, it’s important for owners of residential rentals to stay abreast of the changes that are likely coming to Arkansas.
The biggest legal change likely to come to Arkansas is something called the “implied warranty of habitability.” It is part of the law in all other forty-nine states that there is an implied term in every residential lease that the landlord agrees to keep the premises fit for human habitation.
While you think that might be a very low bar to overcome as a landlord, there’s more to the concept than you’d think on first glance. To determine what “fit for human habitation” means, most states imply local building codes into residential leases. Take one second and read that last sentence again. What that means is that every residential lease in a state with an implied warranty of habitability contains (without it having to actually be printed in the lease agreement) the entirety of the local building code. Your contractual obligations under the lease just got a lot bigger without you knowing about it.
Historically, Arkansas hasn’t had an implied warranty of habitability, and so the only terms of residential leases have been the explicit contents of those leases. Last year, a Pulaski County circuit judge entered an Order finding that the City of Little Rock Housing Code was implied into residential leasing agreement for a particular apartment complex in Little Rock. While the Court did not read a general implied warranty of habitability into residential leases, it did find that the housing code became part of all residential lease agreements.
This indicates something of a sea change is coming in landlord-tenant law in Arkansas. The housing code requires a great number of things you may not have expected. For instance, under the housing code, landlords are “responsible for the extermination of all insects, rodents or other pests.” Sec. 8-402. That means every landlord in Pulaski county is currently required to pay for pest control. Are you doing that at every one of your rental properties? Also, every room has to have a window facing directly to the outdoors. Sec. 8-404(a). Every room must have two floor or wall electric outlets. Sec. 8-404(d).
The point is that there are great number of things in your residential lease you may not have known about.
Wilson & Haubert, PLLC, is in the beginning stages of offering a legal subscription service to residential property owners in Arkansas. In addition to keeping you abreast of the law, we plan to offer services including contract review, LLC formation, unlawful detainers, and other legal issues which might arise from residential rental property ownership. The cost of these services will be a monthly fee of a few hundred dollars. For folks who have a lot of property and have a consistent need for legal services, this could produce huge benefits and peace of mind. In short, if you have a legal problem concerning your residential rentals, we’ll fix it if you subscribe to the service.
We feel that this is a unique service not offered by anyone else in Arkansas, and we’re looking for interested property owners and managers who are in need of consistent legal services for a low monthly fee. If you could use such a service, give us a call, and we’ll assess your needs today.
Everyone always wants to know about price. So, we figured we would be open and transparent about price. We are trying to move all of our costs toward fixed fees because our clients seem to appreciate it more. Below are some practice areas that are already there, more will come as we move that direction for all of our cases. That being said, some cases are not suited for flat fees or fixed fees. If the case does not fit, we will have to charge a retainer and bill hourly against the retainer. Now fee is final until a lawyer and client have a consultation and sign a contract stating the price and what we are doing for the client.
YES! We do. The payment plan you need will be based on your specific case and the amount you can pay down versus the amount you can pay on each payment and how often you make payments. We do allow payment plan, but the require that you allow us to automate the payment plan. You can supply a debit or credit card we will set up automatic payments based on a plan that we come up with together.
You can click on the buttons below to read some articles about pricing in different areas of the law.
Chapter 7 and Chapter 13 Bankrutpcy Prices
Civil Dispute: Evictions, Nursing License Issues, Pharmacy Board Issues, Title 9 Issues, Breach of Contract, etc.
Criminal Defense, Traffic Tickets, DWI, Sex Offender Issues, and Prisoner Rights Prices
Miller Trust is a type of trust used to qualify a Medicaid applicant for Medicaid when the Medicaid applicant’s income exceeds the state published Income Cap. In Arkansas, the “Income Cap” (a phrase with a specific meaning for Medicaid purposes) as of the date of this article is $2,250. This means any applicant for Medicaid is not qualified so long as the applicant’s monthly income exceeds $2,250. The problem with this situation is the Medicaid applicant might have too much income for Medicaid but usually not enough income to pay for a nursing home without assistance. This situation can be remedied by utilizing a Qualified Income Trust. Qualified Income Trusts are also known as “Miller Trusts” based upon a court case with that name.
In general, a Medicaid applicant establishes a Miller Trust by designating someone to serve as Trustee and establishing a bank account in the name of the trust. The applicant's income is then direct-deposited into this newly created Trust account. (Most states require the direct deposit of income into the trust bank account.) In many cases, all of the income of the Medicaid applicant is set up to go into the trust account, leaving nothing that gets paid directly to the Medicaid applicant.
Note the following additional rules regarding directing money into the trust:
Once deposited, the income may only be spent on the medical care of the Grantor. Usually all the income is paid to the nursing home where the Grantor is institutionalized toward the cost of care. Medicaid will pay the difference of the income paid and the total cost of care. The Grantor is allowed a $40 monthly allowance to personal needs from the Miller Trust funds.
Upon the death of the Medicaid applicant/lifetime beneficiary, the state has priority to recover expenses that Medicaid paid on behalf of the beneficiary. Anything remaining in the Trust after the death of the Medicaid applicant is reimbursed to pay those expenses incurred by the state. In the unusual event there are remaining assets after the state is reimbursed, then those assets are paid to the other beneficiaries named in the trust document. Ordinarily, all income deposited into the trust will be spent each month as part of the beneficiary's "share of cost," so there is not likely to be anything left.
Any individual, of any age, who is otherwise eligible for Medicaid may establish an income trust. The individual does not have to be disabled. But an income trust can be used only when the Medicaid applicant is residing in a living arrangement where long-term care services can be provided.
If you are making preparations either to enter an assisted care facility, or are making preparations for a family member, and you are concerned about asset protection or paying for the cost of care, give us a call today and we will assess your situation and determine the best steps for you to take in the coming months. We know this process can feel complicated and scary, but we are experienced with the process and will do everything in our power to protect you and your family.
You may expect getting off the Arkansas Sex Offender Registry to be to difficult and expensive.
At Wilson & Haubert we offer two price options.
Two are flat fees – one price for the entire process, beginning to end.
The third is reserved for complex cases.
Most cases are not considered “complex.”
Here are the three cost options for being removed from the Arkansas Sex Offender Registry:
Most cases will be $1,500 to $2,000
However, after review, our attorneys may identify issues that require additional research time and cost beyond step two.
If you are not a level 4 offender (life time registration)the waiting period is normally 15 years from the date of conviction or release to parole or probation. For more detail, see our post on: removal from the Arkansas Sex Offender Registry
However, you may still be eligible if you were added to the registry inappropriately. If you did not review your case with an attorney before registration or believe you should not be registered, contact Wilson & Haubert for a consultation today.
You may be trying to figure out if you need to register in Arkansas before moving.
For a small fee, our team can assess your case and determine if you should register before moving to Arkansas. To avoid criminal prosecution, this review should occur BEFORE you move.
For security, you may need to register and immediately file a petition for removal.
Failing to register when moving from another state may be a violation of state and federal law, depending on your specific situation.
If you are moving to Arkansas and have any questions about sex offender registration, please contact Wilson & Haubert at 501 372-1212.
Hearing preparation may be routine (in state, with few issues to address) or it may be complex: a review of documents and timelines from many states, an evaluation conducted by an expert witness, preparation based on the expert’s findings, etc.
For $1,500 we may be able to solve a significant, long-term problem.
If you or someone you know wants to be removed from the Arkansas Sex Offender Registry (terminate the obligation to register as a sex offender in Arkansas) please contact Wilson & Haubert today at 501 371-1212
In Arkansas, when a court is deciding custody and visitation of a child, they look at the “child’s best interest” standard. This is a standard made up of many factors. Those factors can vary in the way the court weighs them and how many factors there are, both positively and negatively. To help you better understand the test for a child’s best interest, we will run through some of the factors and examples.
A judge has the ability to order home studies at the home of each party requesting custody or visitation. The court will be looking at the overall condition of the home. The court will want to know if the home is clean, has appropriate HVAC systems, hot water, appropriate furniture for the children and other basics.
In Arkansas, a judge will look at what kind of person the parent who is requesting custody is. Things such as the parent’s reputation in the community and among their peers. The judge may look at the persons criminal record, or if the person has issues with drugs or alcohol.
A judge will want to know which parent is the most likely to foster a continued relationship between the child and the non-custodial parent.
Judges want to know if the parent who is going to be taking care of the child the majority of the time has enough income to provide the necessities needed for the child. For example, can the parent provide the proper shelter, clothing, nutrition, insurance and other essentials required for raising a child.
In most cases, an Arkansas judge will try to keep all the children together in the same home. It is normally in the child’s best interest to remain in close contact with their siblings. This can include half-brothers and half-sisters and in some instances, judges will even consider the relationship between the children and their soon to be step siblings.
The Child’s Preference:
Once a child reaches a certain age, judges will take into consideration the wishes of the child about which parent the child wants to live with primarily. When evaluating the child’s preference, every child is different. The judge will take into account the maturity level of the child, along with other factors in giving the proper weight to what the child wants.
There are many factors an Arkansas judge will look to when determining what is in the child’s best interest when making a determination about custody and visitation. We have covered just a few, and every situation is unique. If you have questions about your current custody arraignment, give us a call and we will be happy to help evaluate your situation.
This is a question we are asked all the time. When can the police stop my car? The answer is: when the police have reasonable suspicion they may stop your vehicle.
Under Terry v. Ohio, an officer may only stop a vehicle if that officer has “reasonable suspicion” that the driver has committed, or is about to commit, a crime. Reasonable suspicion can be many different things, but most commonly it takes the form of an alleged traffic violation like an illegal turn, failure to use a blinker, or speeding. Other times, officers may cite some form of equipment malfunction as reasonable suspicion, like a broken windshield or having a headlight out.
If the police conduct a traffic stop without reasonable suspicion, it may be possible to get evidence which was gathered during the traffic stop suppressed. Evidence that is suppressed cannot be taken into account by the judge or jury in a trial. Therefore, it is extremely important that you have an experienced criminal defense attorney analyze and prepare your case to figure out whether there was reasonable suspicion for the stop in your case.
Just like every other aspect of life, there are rules when it comes to the search of a vehicle, and police must play by these rules. If an officer conducts a legal traffic stop, they may have the driver of the vehicle step out of the car for the safety of the officer. At this point, the officer can search any place that is within arm’s reach of the driver (under the seat, the glove box, the console, ect…). Officers may search these areas for officer safety as well. Furthermore, the police can use any evidence that is in their plain view. If the police go beyond their legal ability to search a vehicle, evidence found as a result of the illegal search and seizure may have a good possibility of being suppressed (not being presented to the jury at trial or considered by the judge, if there’s no jury).
If the police tow a vehicle, they have the ability to search the vehicle and do an inventory of the contents of that vehicle. What this means is, if your vehicle is broken down and has evidence of a crime inside the vehicle, an officer who has the car towed from the side of the road may legally discover evidence of a crime by doing an inventory search of the vehicle.
There are many rules and different lines of case law which pertain to the stop and search of vehicles. If you or someone you know has been the subject of a search, call us today for a consultation.
One of the greatest fears people have about aging is loss of health and ending up in a nursing home. How are you going to afford to pay for long-term care? There are basically four ways to pay for the cost of a nursing home:
There are new options available today with new insurance products that are a hybrid of Long-Term Care Insurance and Life Insurance. These new policies guarantee the premium paid will not be lost. If the insured never collect for Long Term Care claims, the policy will pay at the death of the insured a death benefit to a designated beneficiary. This is an appealing product in that it guarantees a return of investment on the dollars paid in. The downside is the premium for these products is higher than for a regular Long Term Care policy.
Bottom Line: If you can get this coverage you should.
Medicare is the federally funded and state-administered health insurance program primarily designed for people 65 years of age and older (i.e., those over 65). There are some limited long-term care benefits that can be available under Medicare. In general, if you are enrolled in the traditional Medicare plan, and you’ve had a hospital stay of at least three midnights, and then you are immediately admitted into a skilled nursing facility with a doctor’s order for rehab, Medicare could pay for a maximum of 100 days. Without the 3 midnights, an immediate discharge to a long-term care facility from a hospital and a doctor’s order, you are on your own, Medicare will not pay to the nursing home.
Assuming you meet all the criteria stated above, then Medicare will pay 100% of the first 20 days. Medicare will also pay for another 80 days but minus a daily deductible that is about the same cost as the daily price of the nursing home, which means once again you are on your own. But if you have a Medicare supplemental policy, it will pick up that deductible for those 80 days.
But in order to keep Medicare paying, the patient must continue to show improvement in the rehab. Once improvement levels out or flattens, Medicare will not pay for rehab any longer. Once again you are on your own to pay for the care.
Bottom Line: Medicare provides short-term assistance with nursing home costs, but only if you meet the strict qualification rules.
Medicaid is a program requiring two areas of qualification: Income qualification and Resource qualification.
Countable and Non-Countable Resources:
To qualify for Medicaid, applicants must pass some strict tests on the amount of resources that they can keep. To understand how Medicaid works, you need to understand the terminology. Medicaid has what are known as countable and non-countable resources. Non-Countable Resources are the ones which Medicaid will not count towards determining Medicaid eligibility. Countable Resources are those resources Medicaid will take into account. In general, the following are the primary non-countable resources:
All other assets are generally countable. Basically, all money and property, and any item that can be valued and turned into cash, is a countable resource unless it is one of those assets listed above as exempt.
While the Medicaid rules themselves are complicated and tricky, it’s safe to say that a single person will qualify for Medicaid as long as the countable resources are no more than $2,000 and the income of the person is less than $2,205 a month. A Miller Trust will solve the income problem.
If you have questions about how to expedite Medicaid Qualification, give us a call. We have attorneys waiting to help you navigate the complicated fields of Medicare and Medicaid.
Other interesting blawgs on the topic:
Here are the results: 2018JulyBarExamResults
Enjoy scrambling around to find a judge to swear you in on Tuesday. Let the fun begin!
But seriously—we are pleased to have you all as colleagues. Do well.
Looking for some extra reading? After You Get Your Bar Exam Scores