CHECKS and BALANCES

GOOD MORNING FLINT!
10/20/09
By Terry Bankert
Terry Bankert is a Flint Divorce Lawyer sharing his opinion on local issues.

WHERES THE BEEF! WHERE IS THE NEIGHBORHOOD AGENDA?

Several thoughts struck me when I left the 10/19/09 League of Women Flint City Council Forum [I could only stay for the first of two hours.].

WE HAVE LEFT THE FOXES IN CONTROL OF THE HEN HOUSE AND THEY ARE EATING THE CHICKENS! NOW IS THE TIME FOR YOUR CITIZEN INVOLVEMENT IN FLINT! ITS WORTH FIGHTING FOR.

My observations.

1. The winners of the November Election get 4 year terms , they will not have to campaign for another 3 years, the 1974 Charter called for 2 years, the council amended it to 4. That’s too long, the council should be returned to two year terms. This will keep the council accountable in the community instead of becoming elite downtown politicians.

2.There seems to be a budding consensus among sitting council people and a block of candidate to throw out two provisions in the current Flint Charter designed to protect the voter, the Ombudsman’s office and the Human Relations Commission. The ombudsman through independent is a creature of the legislative branch. Leadership on the council has opposed the ombudsman office since I held it in ancient times. The people have voted 3 times to keep the office and the council continues to thwart the will of the people by trying to kill it by under funding and trash talking the current incumbent that they appointed. Nuts to them.

3.My gut feeling is that all roads lead to County Executive, by County economic interest who have co-opted city interests through their overreaching influence on the current and wanna be Flint City Council . Specifically I am talking about the Genesee County Regional Chamber of Commerce and its appendage the Downtown Re- Investment (Cabal), sorry Phil. (Phil, you should really talk to me when I spend money in your restaurant.).

These interests are opposed to a strong neighborhood reinvestment strategy. They think a County Executive , elected by the Chamber and Downtown interest , should run the city of Flint.

CANDIDATES AND INCUMBENTS PLACE DOWNTOWN OVER THE NEIGHBORHOODS, THEY GET $ AND SERVCIES. WE GET TRICKLE DOWN

So when you hear council candidate say, eliminate the Flint Ombudsman’s office or eliminate the Human Relations Commission to even get rid of the strong mayor form of government or calling for a Charter Revision Commission you are really are hearing the Flint City Council and candidate parroting the the Downtown vs. Citizens of Flint Interests.

4.In two of these forums, I left early at the last one , I have not heard a clear neighborhood agenda articulated. Granted increased police protection and building demolition clearly are two planks on a neighborhood platform. We need a grass roots, neighborhood group by neighborhood groups process of communication to keep the citizens informed on the issues of charter change. What do you suggest?

[video and pictures to follow here.]

Thumbnail
http://www.flickr.com/photos/30366181@N05/sets/72157622500405643/


Slideshow
http://www.flickr.com/photos/30366181@N05/sets/72157622500405643/show/

FLINT Wards, 4, 7 and 9 Monday, October 19th, Brennan Community Center- 1301 Pingree St.,,moderator: Gabe Gutierrez, WJRT TV-ABC12 Candidates: 4th Ward -Joshua M. Freeman and Sandy Hill,7th Ward- Denise Smith Allen and Dale K. Weighill,9th Ward- Scott Kincaid and Jeanne R. Reiter

DID YOU KNOW?

ITS YOUR CHARTER, ITS STRONG BUT IMPLIMENTED BY WEAK PEOPLE WITH AN AGENDA FOR UNACCOUNTABILITY AND NO ETHICAL MONITORING.

“CITIZEN INTEREST IN THE EFFECTIVE AND ETHICAL CONDUCT OF CITY BUSINESS IS SERVED BY….THE OFFICE OF OMBUDSMAN AND A STANDARDS OF CONDUCT BOARD.” [cr]

This provision in the flint City Charter is intended to protect us from the politicians that run Flint .

It has intentionally been thwarted by the Flint City Council’s own neglect and calculated intention to destroy the Flint Ombudsman office.

It’s the council job to make the charter work some of them and candidates are saying they are not up to the job! I will quote 2 paragraphs from a 1974 charter revision document.

”Citizen interest is effective and ethical conduct of City business is served by two new measures in the Charter. CRC has created the office of ombudsman and a standards of Conduct Board. The Ombudsman is a City official appointed by 2/3/ vote of the Flint City council for a non-reusable 7 years. The office is intended too check bad or unfair practices in City Administration. The Ombudsman has broad powers of investigation in City Affairs. The officer responds to citizen inquires and may initiate investigations. The ombudsman can only seek information on the failure of city services or suspected misconduct. Prosecution or imposition of penalties must be done in the courts."

"The Standards of Conduct Board oversees the conduct of elected officials and guards against unethical conduct of City Business. There is a Charter section which requires the City Council to enact ordinances in the public interest. These ordinances must prohibit conflict of interest among employees and elected officials and provide for campaign finance disclosures. The standards of conduct board will help employees and officials to conform to the ordinances required in the public interest.””

“The City shall by ordinance, establish a Human Relations Commission charged with the responsibility of reducing unlawful discrimination and increasing mutual understanding among the residents of the city.” Flint City Charter 6-501

ASK YOUR CANDIDATES WHY THEY WANT TO THROW AWAY CITIZEN RIGHTS BY ELIMINATING THE FLINT OMBUDSMANS OFFICE AND THE HUMAN RELATIONS COMMISSION.

THE FLINT JOURNAL OFFERED EXECLLENT COVERAGE by Kristin Longley at http://blog.mlive.com/flint-city-beat/2009/10/league_of_women_voters_hold_fo.html

Please Read her article, she summarized several of the prepared questions.

Q: What is the most important issue in your ward and in the city? How would you address it?

Q: Does the city charter need either a complete overhaul or any amendments?

I tend to agree with Scott Kincaid now may be the time for a charter revision commission.

But for different reasons.

I would suggest the council impanel a study group , of neighborhood and crime watch group leadership, to advise to the council and the community on deficiencies in the current charter ( is any), the charter commission selection process and to educate the public on the process.

We, you and I, could form this group to begin the work and inform our community.

Work needs to be done before it, Charter Revision, is put on the ballot and if approved followed by an election of candidates. Citizen education first.

The Forums are/were brought to you by Cosponsors: Alpha Kappa Alpha Sorority, Inc., Zeta Beta Omega Chapter, Delta Sigma Theta Sorority, Inc., Flint Alumnae and The League of Women Voters of the Flint Area

The last forum is 10/27/09, 7- 9 p.m. FLINT Wards 5, 6 and 8 Tuesday, October 27th Calvary United Methodist Church, 2111, Flushing Rd. Moderator: Tia Ewing, WNEM-TV5, reporter Candidates: 5th Ward- Bernard Lawler and Lynne Waybright 6th Ward- Sheldon Neeley and J.C. Walker 8th Ward- Ehren Gonzales and Michael J. Sarginson

I will not suggest how you should vote nor tell you how I will.

Ask your candidates about issues like elimination of the Ombudsman’s office.

Make an informed decision.

Posted 10/20/09

By Terry Bankert
http://www.flintfamilylaw.com/

See [f] http://blog.mlive.com/flint-city-beat/2009/10/league_of_women_voters_hold_fo.html

[c] Flint City Charter http://www.amlegal.com/nxt/gateway.dll/Michigan/flint_mi/cityofflintmichigancodeofordinances?f=templates$fn=default.htm$3.0$vid=amlegal:flint_mi

[cr] 1974 Charter Revision Document

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Mom loses, girl friend gets business.

GOOD MORNING FLINT!
10/18/09
BY TERRY BANKERT
http://www.attorneybankert.com/

This is a Genesee County/ Flint Family Law, post Divorce child support collection case.
Terry Bankert is a Flint Divorce Lawyer here sharing a review of a case that raised important family law issues.

Issues:

Whether the trial court properly granted the defendants' motion for summary disposition; in a post divorce case. Res judicata; Adair v. Michigan;

Fraudulent transfer of assets affecting child support; Foodland Distrib. v. Al-Naimi; Coleman-Nichols v. Tixon Corp.; MCL 566.31(1)

See;Court: Michigan Court of Appeals (Unpublished),Case Name: (W) v. (W)
e-Journal Number: 43964, Judge(s): Per Curiam - Murray, Markey, and Borrello
UNPUBLISHED, 6, 2009, v No. 287513,Genesee Circuit Court, LC No. 06-084474-CZ.
[For the purpose of presentation this case has been modified. Do not rely on its contents without assistance of an attorney. trb]

EX HUSBAND WINS

Since all the issues which could have been litigated were decided by a family court hearing referee and if the fraudulent transfer of assets issue had been raised by defendant-EX HUSBAND (as it could have been) he would have been in privity with defendant-GIRL FRIEND and res judicata would have applied, the court held the trial court correctly held plaintiff presented no evidence of a fraudulent transfer and properly granted defendants' motion for summary disposition.

The PARTIES were married, had two children, and there was a divorce in 1991.
By 2006, the children had reached majority and THE EX HUSBAND owed over $70,000 in child support.

Under the divorce judgment, he was ordered to pay half of all uninsured medical, dental, optical, and pharmaceutical expenses.

In 2003, he met and became romantically involved with (T), who was also interested in THE SAME BUSINESS, she had a business background.

She opened a BUSINESS and THE EX HUSBAND agreed to teach there two days a week. Her business flourished, but his continued to struggle financially. (T) loaned him money for his business, but his vehicle was repossessed and he closed his business with many outstanding debts.

He worked at (T) studio as an independent contractor. She did not pay him much money, but bought a car he could use and paid for other "perks." In 2006, plaintiff began to pursue THE EX HUSBAND for reimbursement of child care medical expenses she had paid. In July 2006, the referee found THE EX HUSBAND owed some money, but only for bills incurred after January 2004.

The referee found making him pay older bills would be "inequitable due to the age of the bills and the prejudice to Defendant." The order was not appealed. Plaintiff then filed this case seeking unpaid child support, "delinquent medical expenses," and rescission of "fraudulent conveyance of business and personal assets."

The trial court granted defendants' motion for summary disposition holding the request for medical expenses was barred by res judicata because it was decided by the referee and not appealed, the fraudulent transfer claim relied on a repealed statute, plaintiff failed to present any documentary evidence establishing a genuine issue of material fact, and awarded defendants $5,800 in attorney fees.

The Michigan Court of Appeals agreed and upheld the lower court decision.

I. Facts and Proceedings1

The court thought the record was not properly brought before them.

Our recitation of the facts is based upon our independent review of the deposition and other evidence. Neither parties’ brief adequately cites to the record as required by MCR 6.212(C)(7).

OFTEN WE HEAR OF EX SPOUSES THAT TRANSER THEIR ASSETS SO PARTNER CANNOT GAIN ACCESS TO THEM FOR COLLLECTION OF CHILD SUPPORT.

The ex wife complains that her ex husband has his business in the name of his partner and is hiding assets.

VIOLATION OF MCL 55.19

To move assets for the purpose of evading child support obligations, is a violation of MCL 566.19.
SUMMARY DISPOSITION, EARLIER JUDGEMENT AND RES JUDICATA

Defendants moved for summary disposition, arguing that plaintiff was collaterally attacking the earlier judgment concerning the children’s medical expenses, and that the claim for medical expenses was barred by res judicata.

WRONG STATUTE PLED, AND NO PROOF OFFERED

As for the allegation of fraudulent transfer, defendants argued that even if the correct statute had been pleaded, plaintiff presented no evidence that any transfer ever took place between
THE PARTNERS.

TRIAL COURT GRANTED SUMMARY DISPOSITION.

The trial court granted defendants’ motion for summary disposition, concluding that the
request for medical expenses was barred by res judicata because it had been previously decided and not appealed.

EX WIFE STATUTE RELIED UPON HAD BEEN REPEALED

As for the fraudulent transfer allegations, the trial court held that plaintiff
relied on a repealed statute and that plaintiff failed to present any documentary evidence
establishing a genuine issue of material fact.

NO GENUINE ISSUES OF MATERIAL FACT

The trial court also granted defendants’ motion for
attorney fees, awarding $5,800.
　
II. Analysis
　
HIGHER COURT REVIEW OF LOWER COURTS GRANTING OF SUMMARY DISPOSITION.

This Court reviews de novo a trial court’s decision to grant or deny a motion for
summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).

THE EX WIFE COULD NOT MET THE REQUIREMENT TO BRING FORTH MORE INFORMATION

Although substantively admissible evidence submitted at the time of the motion must be
viewed in the light most favorable to the party opposing the motion, the non-moving party must come forward with at least some evidentiary proof, some statement of specific fact upon which to base his case. Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999); Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).

RES JUDICATA

The doctrine of res judicata is employed to prevent multiple suits litigating the
same cause of action. The doctrine bars a second, subsequent action when (1) the
prior action was decided on the merits, (2) both actions involve the same parties
or their privies, and (3) the matter in the second case was, or could have been,
resolved in the first.

WHEN A CASE IS DECIDED UNLESS APPEALED YOU CANNOT REDO IT AND YOU HAVE TO RAISE ALL THE ISSUES AT ONCE, YOU CANNOT GO BACK.

This Court has taken a broad approach to the doctrine of res judicata, holding that it bars not only claims already litigated, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not.

LATCHES, WAITED TOO LONG

The hearing referee upheld the original provision that THE EX HUSBAND pay half of the medical expenses, excluding only those bills she determined were so old it would be inequitable to require him to pay at this point.

THE GIRL FRIEND BUSINESS PARTNER HAD NO OBLIGATION TO HIS KIDS

She had no obligation to pay medical expenses incurred by plaintiff’s children. Thus, all the issues that could be litigated in this matter were decided by the hearing referee; adding a party to the claim seems to be merely an attempt to avoid res judicata.

NO IMPROPER TRANSFER WAS PROVEN

The trial court also correctly held that plaintiff presented no evidence establishing a
fraudulent transfer of assets.

CLEAR AND CONVINCING EVIDENCE NEEDED

This Fraud must be proven by clear and convincing evidence and must never be presumed, although it may be established by circumstantial evidence. Foodland Distributors v Al-Naimi, 220 Mich App 453, 457-458; 559 NW2d 379 (1996).

NO FRAUDULENT INTENT PROVEN

The plaintiff must show both a transfer of assets and a fraudulent intent.
Coleman-Nichols v Tixon Corp, 203 Mich App 645, 659; 513 NW2d 441 (1994). Under the UFTA, a “‘[t]ransfer’ means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease and creation of a lien or other encumbrance.” MCL 566.31(l).

TRANSFER OF NAME AND REPUTATION

The court found the partner may be using THE EX HUSBANDS name and reputation, but he cannot very well “transfer” it in the way of being able to walk away.

EX WIFE DID NOT PRESENT EVIDENCE OF FRAUDULENT INTENT

Even if he had allowed his name to be used the plaintiff has no evidence of fraudulent intent or that there were any improper transfers.

ATTORNEY FEES AWARDED WITH THE PLAINTIFF EX WIFE PAYING THE EX HUSBAND

Tax costs to defendant having prevailed in full. MCR 7.219 and awarded defendants $5,800 in attorney fees.
　
Posted here by
Terry Bankert
10/19/09
http://www.attorneybankert.com/

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Eliminate Strong Mayor and Council Boundaries!

GOOD MORNING FLINT!
10/16/09
Terry Bankert


Terry Bankert is a Flint Divorce Attorney lawyer sharing his opinion with you.


Do you want you Flint City Council reduced from 9 to 7 position?

Do you want you Flint City Council to run city wide, represent city wide?

Do you want your Flint City Council to be full time. And by impication recieve full time pay increase?

There are candidates running for Flint City Council that what all of the above.

“About 50 people came out to hear Flint City Council candidates talk about public safety, vacant land and the effects of population loss at tonight's question-and-answer session.”[f]
　
It is a scary event to watch a senior citizen have a seizure. That happened last night at the candidate forum. The candidates were down to the last question. The lady was okay, from comments and actions of friends around her it has happened before. The forum ended.
　
Eric Mays poised a difficult question to the organizers. Should an announced write in candidate be allowed to participate in the forum?

Mays was allowed to participate.
　
THE EVENT

Wards 1, 2 and 3
Thursday,
October 15th
Mt. Calvary Missionary Baptist Church- 4805 N. Saginaw St.
Moderator: Paul Rozycki Political Science Professor at Mott Community College.

Candidates:
1st Ward- Darryl Buchanan and Delrico J. Loyd ,write in candidate Eric Mays.

2nd Ward-David Davenport and Jackie Poplar

3rd Ward- Johnnie Coleman and Bryant Nolden

Thumbnail pictures.
http://www.flickr.com/photos/30366181@N05/sets/72157622596990894/


This event was sponsored by,

Cosponsors: Alpha Kappa Alpha Sorority, Inc., Zeta Beta Omega Chapter, Delta Sigma Theta Sorority, Inc., Flint Alumnae and The League of Women Voters of the Flint Area


I am taking no sides and will limit my comments so preference cannot be interpreted. It is up to the voters in each ward to pick their representative. Ward representation is important. So I will talk about that.
　
A council, nine members running city wide for city council could all come from the same neighborhood, same street, same family or coalition, and win because of the financial support of one person ( Mott, Williamson), one union (UAW, or Faternal Order of Police), or one interest group , for instance "downtown investors", would you want that?

There are candidates running for Flint City Council that are encouraging your loss of representation.... BEWARE !

One candidate even wants to do away with the strong mayor form of government.... BEWARE.!

These proponents were not opposed by the other candidates........BEWARE!

My read is that these issues are on the table, coalitions with multiple agendas are maneuvering.

Is County Executive the real agenda?

Is it "Downtown" over the "Neighborhoods"?.....BEWARE!

When I was Flint Ombudsman and Tim Herman was Flint City Finance director he called me the Charter Cop.

Well I guess I was.

I think the democratically established process of government is important. It is not a casual thing to violate a law, or a city charter.

These are the ways the people through elected representative decide how our government is organized.

So if I am the charter cop, lets go on patrol.

The following is from a 1974 weathered newspaper handout produced by the Flint Charter revision Commission’s Charter revision was just about my first public act when I was about 25 yrs old. Nic, Dayne, Ryan ,DelRico, ya’all got nothing on me.

Here is part of the argument to keep the strong mayor form of government. The city manager ,city commission form of government was worse.

“4.The Charter must provide clear line of authority.” ”One recurrent objection to the 1929 Charter was the way in which it fragments the authority of government officials. It is hard to determine who is responsible for getting the job done under the present Council-Manager system.”

My view is the council has not stepped to the plate and exercised the power it has. Strong mayors, several, have dominated the council.

The council had been elected by ward prior to the last charter revising.”…the CRC [Charter Revision Commission] has not changed the present Charter unless it saw a clear need to do so.”

Debate on this issue is a good thing.

If the community is convinced then a charter amendment should be put forward. But the community should actively debate this issue, not be suprised on election day.

THANK YOU FLINT JOURNAL FOR COVERING THIS EVENT. CHANNEL 12, CHANNEL 5 HOW DARE YOU TO NOT BE THERE. At least I did not see them.

“Here is a summary of some of their answers:

In light of declining revenue, what programs would you eliminate or reduce to boost public safety?[f]

Buchanan proposed cutting back on police overtime and having city employees take a four-hour furlough each year. He also advocated awarding more city contracts to city companies.[f]

Mays said the city could save money by better evaluating lawsuits. He said he would put the money into the detective bureau and more undercover police officers.[f]

Loyd also said the city could save on legal costs and added that the city could generate more revenue by having beefed up code enforcement. He said the city should make sure the leaders in every department are performing up to standard.[f]

Coleman, a former councilman, said the city in the past brought in consultants to evaluate where savings could be found. He said the city council also held budget classes to become better educated on the budget process.[f]

Nolden said he can't cite specifics until he's elected but suggested offering early retirement incentives to officers with higher seniority to make way for more new officers. He also suggested furlough days for city employees.[f]

Davenport, a vocal critic of the Genesee County Land Bank, said the city should end its contract with the agency. He said he would put more surveillance cameras throughout the city.[f]

Poplar pointed to an ordinance amendment she drafted that made it easier for local vendors to get city contracts. She also said the city needs to fix more sidewalks to cut down on lawsuits.”[f]
　
　
You can attend future candidate forums in Flint and Burton.

FLINT Wards, 4, 7 and 9 Monday, October 19th
Brennan Community Center- 1301 Pingree St.
Moderator: Gabe Gutierrez, WJRT TV-ABC12 Candidates:
4th Ward -Joshua M. Freeman and Sandy Hill
7th Ward- Denise Smith Allen and Dale K. Weighill
9th Ward- Scott Kincaid and Jeanne R. Reiter


Wards 5, 6 and 8 Tuesday, October 27th Calvary United Methodist Church, 2111, Flushing Rd. Moderator: Tia Ewing, WNEM-TV5, reporter Candidates:
5th Ward- Bernard Lawler and Lynne Waybright
6th Ward- Sheldon Neeley and J.C. Walker
8th Ward- Ehren Gonzales and Michael J. Sarginson

All candidates for Flint City Council have been invited.

ASK THEM ABOUT;

ELIMINATING THE STRONG MAYOR,

ELIMINATING COUNCIL BOUNDARIES,

ELIMINATING TWO COUNCIL SEATS,

MAKING A FULL TIME COUNCIL AND FULL TIME PAY AND

FULLY FUNDING THE FLINT OMBUDSMANS OFFICE.

[I feel alone in my support of the Ombudsman, ask Gonzales why he opposes it!OKAY...I held that post and have blinders on.]

The general election will be held Tuesday, November 3, 2009.

The cosponsoring organizations are all non-partisan and do no support or oppose any candidates. Cosponsors: Alpha Kappa Alpha Sorority, Inc., Zeta Beta Omega Chapter, Delta Sigma Theta Sorority, Inc., Flint Alumnae and The League of Women Voters of the Flint Area Candidate


Forum:

Burton City Council
7 P.M. to 9 P.M.

Tuesday, October 20th Burton City Hall- 4303 S. Center Rd.

Moderator: Jack Minore- Former State Representative

Candidates: Jennifer Morquechio Larry Petrella Vaughn Smith Laurie L. Tinnin Danny Wells Paula Zelenko

3 SEATS AVAILABLE – EACH FOR A FOUR YEAR TERM

All candidates for Burton City Council have been invited. The general election will be held Tuesday, November 3, 2009.

The cosponsoring organizations are all non-partisan and do not support or oppose any candidates. Cosponsors: Alpha Kappa Alpha Sorority, Inc., Zeta Beta Omega Chapter, Delta Sigma Theta Sorority, Inc., Flint Alumnae and The League of Women Voters of the Flint Area

Posted here by
Terry bankert
http://www.flintfamilylaw.com/


[f]
http://blog.mlive.com/flint-city-beat/2009/10/public_safety_vacant_land_topi.html

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