Understanding Eight Judicial District Court Rule 5

Part V of the Eighth Judicial District Court Rules governs practice and procedure in family matters. This was written to help enhance the understanding of the rule. For a more comprehensive explanation of the rule I direct you to the rule itself which is not particularly difficult or overly comprehensive. Here, I will only discuss those aspects of the rule which I find pertinent to my particular practice.

EDCR 5.02 provides that any hearings may be private upon the demand of either party. This will result in the hearing being closed to all others other than the parties, counsel, and any testifying witnesses. The court may permit an expert witness to remain present in the proceedings if the court finds that to do so would promote justice or the best interests of the child.

EDCR 5.03 prohibits discussing issues of any case with children of the case or otherwise allowing such children to observe any record or pleading in the case.

EDCR 5.07 requires parties in all domestic relations matters where a child is at issue to attend a co-parenting seminar within 45 days of service of the initial complaint. This rule is often ignored until a judge reviews the record and sees that no COPE certificate has been filed. Proper procedure dictates that litigants in custody cases should be directed to take such co-parenting class immediately after retaining counsel so as to effectuate the 45 day requirement.

EDCR 5.13 governs child interview and outsource evaluation reports. Be mindful as counsel that this rule prohibits dissemination of any child interview or outsourced custody report to anyone other than a licensed attorney. Clients are allowed to review these reports while in the attorney or courts custody but such reports are not to be released to parties without counsel. The rule further provides that these written reports are not to be made an exhibit or part of the open court file without order of the court. Lastly, keep in mind that the contents of these written reports may be received as direct evidence of the facts contained within these reports.

EDCR 5.11 requires that the parties attempt resolution of matters before any motions are heard. Failure to attempt resolution prior to hearing may result in sanctions. An award of attorney’s fees and costs may be awarded if the court finds that such issues would have been resolved prior to court intervention if only the moving party had attempted this resolution. Part (b) of this rule provides that for the case in which the non-movant does not file an opposition or response in a timely matter to a motion or countermotion. The rule allows the movant in such case to file a Request for Submission along with a proposed order. The request should state the date and time for hearing currently set and request that such hearing be vacated. In the judge’s discretion such order may be signed unless the court lacks jurisdiction or determines that the interests of justice dictate otherwise.

EDCR 5.12 states that a child may not be examined for the purpose of obtaining an expert report for trial or hearing absent a stipulation of the parties or order of the court.

EDCR 5.20 governs preliminary injunctions and temporary restraining order. Motions for temporary restraining orders or preliminary injunctions must be supported by an affidavit setting fort sufficient details so as to justify such requested relief. Such requests for restraining orders granting relief regarding property, custody, visitation, and support will be considered in cases of extreme emergency. The parties attorney need make certification in writing of such attorney’s efforts to notice the other party and provide reason why notice need not be required in ex parte context. Any ex parte restraining order shall expire by its own terms not to exceed 30 days unless for good cause shown it is extended. In these ex parte cases a hearing shall be set on motion for the earliest possible time.

On ten days’ notice to the party who obtained the restraining order the adverse party may appear and move for its dissolution or modification. These temporary restraining orders may not be granted unless coupled with an order providing for the time for hearing the motion for the order or injunction.

EDCR 5.21 allows for temporary restraining orders regarding residence. A motion can be put on requesting such exclusive possession. Be advised that such motion must be accompanied by an affidavit setting forth facts sufficient for granting such request. Ex parte motions will be considered if the other party is not living in the residence. If both parties are residing therein then an ex parte motion for exclusive possession will be considered only in extreme circumstances.

EDCR 5.22 governs Temporary protection orders. The standard required for such orders to issue is “to the satisfaction of the court”. The application and order for the extension of a TPO must be served no later than 24 hours prior to the TPO extension hearing date. Such application and order for extension of a TPO must accompany an affidavit setting forth specific facts warranting such. Be advised that within such application you may request child or spousal support. If you do so then it is required that a financial disclosure form be filed along with such application. An extended protection order cannot be renewed without a showing of new facts which would suffice for such extension.

Domestic violence commissioners oversee these TPO hearings absent and open domestic case. These commissioners can make rulings which are subject to approval by the assigned district court judge who is ultimately responsible for the case. These orders will remain in effect until they expire by their term or unti8l a motion is filed and heard by a district court judge or orders otherwise on the issue.

Be mindful that a party may object to a domestic violence commissioner’s recommendation by filing an objection within 10 days after the decision. The decision will remain in effect until the objection is heard. The assigned district court judge will be responsible for reviewing the matter and affirming or setting aside all or some part of the commissioner’s order.

EDCR 5.32 dictates when a financial disclosure form shall accompany a motion. Essentially any motion for fees and allowances, temporary spousal support, child support, or exclusive possession of the community residence must be accompanied by such financial disclosure form. An incomplete or absence of such form may be construed as an admission that the motion is not meritorious and cause for its denial. Any party opposing such motion has an equal duty to provide such disclosure form to the court.

EDCR 5.33 requires us to file a schedule of arrears any time we file a motion alleging that a party is in arrears for child support, spousal support, or any other periodic payment. The schedule should show what was due and what was paid on the due date.

EDCR 5.39 provides that counsel should file a UCCJEA declaration any time the custody of a child is at issue and the child has resided outside of the state of Nevada within the past five years. The declaration should set forth the names and addresses of all people that the child lived with during that period of time. This declaration should be filed before the contested child custody action is heard by the court.

EDCR 5.70 provides that all parties filing an answer for domestic contested custody or visitation disputes must attend mediation prior to hearing or trial. For good cause shown the district court judge may waive this requirement. Parties are free to mediate through private mediators by submitting a “private mediator form” as well. Upon the filing of an answer the plaintiff has a duty to file a stipulation and order for mediation or an FMC request and order for mediation. The court may on its own initiative order the same at any time. Mediation fees through the family mediation center are set on a sliding scale from $50 to $200 depending on the income of the parties. Parties who receive public assistance may receive a fee waiver for these services. Counsel can speak to the mediator prior to the mediation conference but will be excluded from actual mediation

EDCR 5.81 requires that in all contested matters regarding children that such custody/visitation matters be heard by the judge prior to any trial be heard. Thus it is incumbent on the parties to file a custody motion and have such motion heard prior to the setting of any trial date.

EDCR 5.87 provides that counsel is to meet prior to calendar call for a pre-trial conference. The parties have an obligation to meet and confer prior to calendar call for the purpose of exchanging their witnesses and exhibits. The plaintiff should designate the location for this conference. The parties can stipulate and make agreements ant this conference so as to streamline the trial. Particularly, the parties should stipulate to the admittance of any evidence at trial. The pre-trial memo can and should be submitted at least ten days prior to calendar call. The requirements for the pre-trial memo are laid out in section (b) of rule 5.87.

How to Start a Home Photography Business in North Carolina

After years of pursuing photography as an avid amateur photographer, I decided to finally take the plunge and become a professional. I already owned all the necessary camera bodies, lenses, flashes and other assorted equipment, and having my own business meant future photography purchases would be tax-deductible. A smart decision, right?

The short answer, for me at least, was “yes.” The long answer, however, was, “It depends on how much time you want to spend running around and researching the requirements.”

Fortunately for you, I’ve done it already in North Carolina and am willing to share the results (for this state, at least!).

For the purposes of this article, I’m assuming the following things are true:

1. You will be operating this business in the state of North Carolina.

2. You already have the photography expertise to qualify as a professional photographer (that’s another article all by itself).

3. You’ve done the necessary research to determine whether you have the time, energy, potential customer base, and business plan to ensure your new venture succeeds (again, this topic is another article on its own).

The first step was determining what kind of business entity to be. After doing much research online, I was a bit confused, until a CPA explained it to me: there is a difference between your LEGAL status and your TAX status. She recommended that my photography business be an LLC (limited liability company), but file taxes as a sole proprietor.

As with all the different options, there are positives and negatives to each option. LLC status would protect me from personal liability in the event of a lawsuit, which was important to me. The paperwork is very easy to prepare and submit, which is also good because I wanted to take care of everything myself.

Filing taxes as a sole proprietor would be very simple: just attach a Schedule C to my personal tax return each year. Although this filing status is easy enough, sole proprietors pay a slightly higher tax rate than S-Corporations.

Filing as an S-Corp, however, means more paperwork and filing quarterly taxes instead of a Schedule C with my annual return. I wasn’t interested in that much paperwork, so sole proprietor status is fine with me. If and when my business starts making so much money that I’m interested in a lower tax rate, I can always change my status to an S-Corp.

Now that I’ve determined my legal status and tax status, I had to file for my LLC with the state of North Carolina. This involves sending a check for $125 to the Secretary of State, along with Articles of Organization, which can be downloaded and filled out from their web page.

It takes about 7-10 days for your status to come back confirmed, although if you include a note and your e-mail address, they will e-mail it to you which will save a few days.

The state of North Carolina considers photographers to be one of those lucky professions that require a State Privilege License. This is an annual license granted to the person, not the business, so if you end up working for a different photography business in the future, you don’t need to get a second license that year. A privilege license is $200, from the North Carolina Revenue Office. This must be done in person, but the Revenue Department has offices all over the state, so there’s probably one in a city near you.

While I was there, I also received a State Tax ID. This is (fortunately) free, and it will come in handy because armed with this important number, I will no longer need to pay sales tax when purchasing items for my business (assuming I’m purchasing from a North Carolina vendor; obviously you don’t pay sales tax at all when purchasing from an out-of-state vendor, such as when I buy lenses online).

The friendly and helpful NC revenue employee explained to me that two forms will need to be mailed into the NC Revenue Office each quarter. One is a form explaining what your revenues for the quarter were and how much tax you charged your clients. You will need to include a check for the tax amount. The other form shows what equipment you purchased for your business that quarter and didn’t pay tax on. You will need to include a check for 1% of the total (hey, at least it’s lower than paying the full retail tax on your purchases). This includes everything from cameras and lenses to printers, computers, paper, ink cartridges, etc.

Charging my clients sales tax is a bit confusing in North Carolina. The law is not clear, and lawsuits that have been argued in state court have conflicting results. It appears that you do not need to charge sales tax on services such as session fees, UNLESS the client ends up purchasing prints from the session. Of course you always hope and assume the client will purchase prints, but you never know for sure. To be safe, you should go ahead and charge them sales tax on the session fees up front, assuming they will buy prints.

You always need to charge sales tax for tangible goods sold. So any prints, albums, or other products that you sell to your clients must always include sales tax.

The tax rate that applies depends on where the client took possession of the goods. If the client lives in Gaston County and asks me to mail her the prints, the Gaston County rate applies. If the bride decides to swing by my house in Charlotte to pick them up personally, the Mecklenburg County rate applies.

Tax was by far the most complicated part of the business-formation process. Fortunately the employees at the NC revenue office were very helpful, and gave me several “cheat sheets,” sample forms, and (best of all) their phone numbers for me to call with questions.

If you want your NC State Tax ID to be in your business’ name, instead of your own name, you will need a Employer Identification Number from the IRS. I was initially confused by this, because I wasn’t planning on employing anyone other than myself, but as it turns out, the Employer Identification Number has nothing to do with employing anyone. Luckily it was free and handled easily over the phone while I waited in the lobby of the state revenue office.

Now there’s the matter of where you live. I’m a resident of Charlotte, so I’m in Mecklenburg County. Fortunately, Mecklenburg County recognizes the State Privilege License, so I wasn’t required to get an additional County business license.

I was, however, required to get a Customary Home Occupation Permit from the Zoning Office. This is a one-time permit that allows me to work from home. This is a lifetime permit; however, it only applies to this particular address. If I decided to move to a different house in a few years, I will have to get a new permit. It cost $125.

Next, I needed a business checking account. I went straight to Wachovia, since they already handle our personal bank accounts and I wanted everything in one place for convenience. Wachovia needed copies of my privilege license, my EIN, and my state tax ID, as well as the normal documents for a new account like my driver’s license. In about a week, I had received my check card and checks for the account. This is highly recommended by the CPA I visited, in order to keep business and personal expenses separate.

The final thing I needed was business insurance. This is recommended in addition to any homeowner or umbrella liability coverage you may already have. It’s not too expensive (less than $200 per year) so go ahead and get it. Any insurance agent will be able to go over the options with you. Business insurance will not only cover your equipment in the event any of those expensive lenses or cameras get damaged, but will also help in case a guest trips over one of your lightstands at a wedding, for example.

A few side notes: if your business is an LLC, you are legally required to have the initials “LLC” or the words “Limited Liability Company” in your business name. This makes it clear to all customers and potential customers that you are an LLC. Also, if you do not keep your business and personal expenses separate, you lose the protection of an LLC (meaning your personal assets are vulnerable in the event of a lawsuit). DO NOT RISK THIS — keep everything well documented and separate!

Best of luck with your new business venture! I recommend visiting the North Carolina State business development website and calling their hotline; they gave me a lot of tips the CPA didn’t mention, and it was free to boot! Fortunately there is a lot of support out there for people starting their own businesses. It’s free, and these people know what they’re talking about — please take advantage of it!

Restricted License Automobile Coverage – Can You Buy Auto Insurance With a Restricted License?

Q: My license was restricted by the court so I am only allowed to drive to, and from, work. Can I get automobile insurance coverage while my license is restricted?

A: Not only can you get automobile insurance coverage while your license is restricted, but you absolutely must.

The court restricted your license, but still allowed you to drive for a period of time each day. While you are on the road your car must be insured in every state except for New Hampshire.

If you are caught driving without insurance and with a restricted license you will lose your restricted license at a bare minimum. It is more likely you will be arrested.

Many states will require you to file a form known as an SR22 while driving with a restricted license. Basically this is a form that your insurance company will send to the state explaining that you are covered. If the policy lapses the insurance company will notify the state immediately.

An SR22 insurance policy will be more expensive, but it is often the only way to legally drive a car while your license is restricted.

You should consult with an attorney to find out the specifics of your case, but our recommendation is to not even consider driving a car without automobile insurance coverage.

We highly recommend that you compare auto insurance quotes from a variety of providers before choosing a policy to meet your needs. This will allow you to purchase the best coverage at the lowest cost.

Pitfalls to Avoid While Opting for Cheap Motorbike Insurance Cover

In your haste to save a few pounds in the short term you might end up with an inadequate or mismatched insurance cover for your motorbike that could haunt you when you least expect it. Here are some pitfalls to avoid in your quest to seek out cheap insurance cover for your beloved motorcycle.

The first and only step that most people do is to compare rates between various insurers and rush to sign on a cover that promises the lowest premium. If you fail to look at exactly what is covered under those cheap rates then you could be stranded in the middle of the road or in a court of law or face expensive repair bills that need to be paid out of your pocket simply because you preferred to choose the cheapest quote.

If you opt for Third Party cover even while living in an area where crime is high simply to save a few quid then that too could prove to be a costly mistake. If the risks surrounding your motorbike are high then you should opt for the best possible cover even if it means paying a little more now. On the other hand, opting for all extras in insuring your bike even if you do not need them could simply drain your finances. The key is to study all possible covers before choosing the ones that will provide adequate protection in your specific circumstances instead of simply generalising and ending up with mismatched protection.

You can easily browse through the internet to find several insurers that offer extremely competitive rates along with matching features to protect your bike in the best possible manner. However, if you fail to get referrals regarding the reputation and business ethics followed by the insurer of your choice then you might only end up running from pillar to post in case you want to claim your motorbike insurance or worse still might find that the insuring company has folded up a few weeks or months after you have purchased your cover. It is thus very important to study the track record of any insurer that seems to fit your bill.

Depending only on what your insurance broker or insuring company says can also turn out to be a costly mistake. You should certainly spend some time in studying all aspects of your proposed insurance cover before you sign on any dotted line. Although your broker or company might have your interests in their minds, there might still be a few factors that might have been missed out and you would ultimately be the loser in case of any mistake in your cover. Understanding all aspects and its implications will help you achieve the best motorbike insurance cover for your bike and help you to sleep peacefully at night.

A motorbike might allow you freedom to move around but any mistake in opting for the best possible insurance cover for your two wheeled dream could turn into a financial nightmare. You should avoid all pitfalls that accompany any miscalculation in choosing the right options while insuring your motorcycle so as to remain happily on financially stable ground after any accident or theft of your precious bike.

Muscle Loss With Aging (Sarcopenia) Treatment, Recommendations, and Market Size

After a person reaches age thirty, he or she can expect gradual muscle tissue loss called sarcopenia to slowly set in. The term “sarcopenia,” which derives from the Latin roots “sarco” for muscle and “penia” for wasting, is the natural and progressive loss of muscle fiber due to aging. Every person aged thirty and above has sarcopenia to some degree.

Sarcopenia and osteoporosis are related and often occur simultaneously, because use of the body’s muscles provides the mechanical stress needed to put pressure on the skeletal structure and maintain bone mass. Inactivity leads to loss of both muscle mass and bone mass and can put older adults on a downward health spiral that is exacerbated by surgery, traumatic accidents, or even illnesses that cause prolonged rest.

Fat storage also plays a role in sarcopenia and thus osteoporosis as well. If muscle tissue is marbled with fat, it will be less strong than lean muscle tissue. Muscle function is inversely related to increases in intermuscular adipose tissue (IMAT), which may be just as insidious as visceral fat, the abdominal “spare tire” that increases the risk of diabetes, heart disease and early death. Excessive fat storage in muscles can be a sign of systemic inflammation. Researchers at the University of Utah’s Health Sciences Center’s Skeletal Muscle Exercise Research Facility are trying to find the connection between sarcopenia and chronic systemic inflammation, which is increasingly recognized as the root cause of all degenerative diseases.

Aging translates into a loss of muscle mass, loss of muscle function, and possible infiltration of fat into the muscle tissue. Yet the University of Utah researchers now have evidence that what we have long attributed to aging may be due to inactivity. That possibility raises interesting questions such as “is the loss of muscle mass preventable with more activity?,” and “is the loss of muscle mass reversible with more activity?” Intermuscular fat no doubt reduces strength as the fat literally gets in the way of blood vessel and nerve functions in the muscle tissue. But researchers are continuing to see if some inflammatory factor also connects IMAT and sarcopenia.

To combat the effects of sarcopenia, middle-aged adults will benefit most from a workout that emphasizes strength building and weight-bearing exercises. To combat the overall loss of energy effects with aging, adults need exercise routines that build endurance, instead of those requiring quick bursts of energy. Combining these elements would yield an exercise routine that incorporates, e.g., walking long distances (one mile or more) or using the treadmill and also some days set aside for lifting weights. Walking can maintain one’s fitness level, but walking will not enable a person to recover muscle mass from a prolonged absence of exercise due to illness or inactivity. Developing strength requires resistance training and weight-bearing exercise — not just the physical activity of walking. Strength reserves need to be built in a wellness environment.

Around age forty-five, most people first experience the onset of aging: energy levels go down, it takes more effort to do physically demanding work, and it takes longer to recover from sickness. As a whole the older population tends to neglect their bodies. It is difficult to instill a health and fitness ethic in older adults if they have not developed life-long habits of daily exercise. The best regimens will strike a balance between exercises in cardio-respiratory, endurance, strength, balance, and flexibility. The more a person ages, the more his or her body needs exercise.

The resistance exercises should target the primary muscles of the legs, trunk, and arms. Initial sessions should start out at a moderately low level of effort, with progressive increases in weight loads and difficulty over time. For those without fitness center memberships, these exercises need not require large and expensive machines as body weight, stretch cords, and dumbbells will generally suffice. Performing push ups on (carpeted) stairs at home is an excellent way to build or maintain pectoral, bicep, tricep, and shoulder muscles as well as tighten the abdominal core.

Yet despite these home conveniences, Americans do not get enough exercise and instead have a sedentary lifestyle, which is often the first step in a vicious cycle. Unless people stay active, particularly senior citizens, their joints, which already are losing their density and becoming more vulnerable to breakage over time, will grow stiffer, making movement even more difficult. Prolonged rest will also lead to a decline in aerobic capacity, and thus people become easily fatigued. People usually experience a rapid deterioration in muscle mass and energy levels in their mid-sixties.

Muscle protein production begins to slow down naturally in people when they age. Both the age at onset for muscle protein production decline as well as the rate of decline will depend on genetics as well as the level of physical activity. We know muscle fibers decline with age and that fewer muscle fibers translate into reduced muscle capacity. Thus the stage is set for muscles to become fatigued more easily and for sarcopenia.

While weight-bearing exercise is the most important treatment for sarcopenia, a recent study published in the journal Clinical Nutrition shows that the amino acid leucine may improve muscle protein synthesis and combat the onset of sarcopenia. I personally consume 4 or 5 glasses of whey protein isolate shakes (combined with water, not milk), and each 25 g scoop of whey protein isolate powder contains 2200 mg of Leucine. Drinking whey protein isolate is an effective of way of obtaining the body’s daily need for Leucine.

A 2004 study in the Journal of the American Geriatrics Society looked at sarcopenia in the United States and determined the estimated direct healthcare cost attributable to sarcopenia in the United States in 2000 was $18.5 billion ($10.8 billion in men, $7.7 billion in women). The excess healthcare expenditures were $860 for every sarcopenic man and $933 for every sarcopenic woman. The study suggested a 10% reduction in sarcopenia prevalence would result in savings of $1.1 billion (dollars adjusted to 2000 rate) per year in healthcare costs. Therefore, aging adults have both health reasons and financial reasons to take steps now to combat sarcopenia.

But companiesandmarkets.com estimated the market size of sarcopenic drug therapies to be just $10 million. The low valuation of the potential drug market comes from the fact that drug therapy is not recommended as a first-line treatment for sarcopenia. At present, no drug has been approved for treating sarcopenia. The current competitive environment comprises only generic and off-label drugs such as testosterone, estrogen, and growth hormones. There are no promising drugs in the late stages of any pharmaceutical firm’s pipeline for treatment of sarcopenia. Thus, we would not expect new drugs for sarcopenia to reach the market until after 2018. Instead, the market value for this therapeutic area will remain low due to competition from generic forms of hormones that cost as little as $20 for a monthly supply.

Yet despite that low market assessment, the pharmaceutical industry is slowly developing therapies for sarcopenia. GlaxoSmithKline, GTx, Inc., Five Prime Therapeutics, Inc., are all focused on developing selective androgen receptor modulators (SARMs), a new class of drugs with the potential to prevent and treat muscle wasting in patients with cancer, and other musculoskeletal wasting or muscle loss conditions, including chronic sarcopenia (age related muscle loss). In fact, GSK and Five Prime Therapeutics have a collaboration agreement. Similarly, Radius Health, Inc., received a patent on its SARM candidate drug. But I am most interested in Betagenon AB and Baltic Bio AB collaboration to produce a new pipeline drug (currently named “0304”) that activates AMPK, metabolizes fat as heat energy rather than storing it, and has been shown to reverse sarcopenia in lab rat experiments.

Tips to Choosing the Best Moving Company

Like within any industry, the household goods business has its share of rogue companies that have been known to prey on the general public. From denying claims, lost belongings and holding the consumer’s items for “ransom”, reports of abuse by moving companies happen all too often.

The majority of these consumer abuses occur by those movers who are operating under their own authority and are normally not associated with a major van line. These rogue movers will often work under their own generic “van line” name.

Forty million people move each year and the large majority are completed with customer satisfaction by both, van lines and independent movers. These movers also tend with the negative impact placed on them and the industry by the fraudulent companies that take advantage of the consumer.

The major cause for the consumer who gets caught in one of these moving scams often lies with choosing the cheapest priced mover. Economics is certainly understandable, but going with the cheapest price is usually a recipe for disaster. Extensive research and understanding how the moving industry operates, play key factors in choosing the best moving company for your relocation.

With May through October being the busiest time for movers, the peak moving season will soon be approaching and there are steps that consumers can take to increase their chances of obtaining a care-free move:

  • Never hire a moving broker
  • Make sure the moving company has been in business for at least 7-10 years
  • Visit their office to make sure they are who they say they are
  • Never accept an “estimate” over the phone
  • Make sure their trucks show the appropriate markings as required under federal law
  • Check them out with the Better Business Bureau (BBB)
  • Check their ICC number against the FMCSA records

These are just a few steps that consumers can take to validate a moving company’s reputation and record particularly when it comes to storing your household goods.

Most moving companies offer storage facilities should you have to store your items until your residence is ready for the move-in process. Moving companies holding the consumer’s belongings in storage for “ransom” have been documented and the FMCSA is now enforcing laws against these type of movers through the Map-21 Act.

Although these type of incidents do occur, it is most often done by independent movers not associated with a major van line. If you must place your belongings in storage, it is recommended to deal only with a major van line that is well-known; not with an independent moving company or a company which operates under its own “van lines” name.

Although many independents can be trusted, the key factor here is for you, the consumer, to have peace of mind. The greatest peace of mind you can have is to place your storage in a storage facility that you have complete control over such as a mini-storage facility.

By utilizing a self-storage facility, you and only you will hold the key and access rights to your belongings. If you are concerned with a possible “ransom” scam by movers, this would alleviate any fears of such an incident occurring.

Through research and investigation and fully understanding the household goods moving process, consumers can avoid becoming the next victim to moving fraud.

Law Embracing ‘Misrepresentation’ In Contracts


The importance of the term ‘misrepresentation’ can be inferred from the fact that “free consent” which is inevitable for an agreement to be enforceable under Section 14 of Indian Contract Act, 1872 is rendered negative if misrepresentation is proved. In other words, misrepresentation to any party in a contract so as to induce them for consent renders the contract void.

Section 18 of the Indian Contract Act, 1872 (the “Contract Act”) defines misrepresentation. This section is quoted below:

“Misrepresentation” means and includes –

(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him;

(3) causing, however innocently, a party to an agreement, to make a mistake as to the substance of the thing which is the subject of the agreement.”

With regard to contract, the general principal is that if one party has induced the other to enter into a contract by misrepresentation, though innocently of any material fact specially within his own knowledge, the party misled can avoid the contract. The party who was induced by misrepresentation to enter into a contract, has two remedies open to him; (i) to elect to rescind the contract, or (ii) to seek enforcement of representation and insist upon being placed in the same position as if the contract was performed by claiming damages.”

Under Section 19 of the Contract Act, the right of rescission is available where consent is caused by misrepresentation.

Section 19 of the Contract Act provides for voidability of agreements without free consent. This section is quoted below:

“When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.

A party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.

Exception: If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.

Explanation: A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practiced, or to whom such misrepresentation was made, does not render a contract voidable.”


A, by a misrepresentation, leads B erroneously to believe that five hundred mounds of indigo are made annually at A’s factory. B examines the accounts of the factory, which show that only four hundred mounds of indigo have been made. After this B buys the factory. The contract is not voidable on account of A’s misrepresentation because of lack of ‘due diligence’.

Section 19A of Indian Contract Act, 1872 states that:-

“When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused. Any such contract may be set aside absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the Court may seem just”.

A Comparative Study of Correlation Between Misrepresentation and Sale Of Goods

Section 3 of the Sale of Goods Act states that:

“The unrepealed provisions of the Contract Act save in so far as they are inconsistent with the express provisions of the Sale of Goods Act, shall continue to apply to contracts for the sale of goods”.

Section 12 of the Sale of Goods Act, 1930 provides the difference between ‘condition’ and ‘warranty’ and read as follows:-

“12. Condition and warranty, – (1) A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or a warranty.

(2) A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated.

(3) A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.

(4) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract”.

Further, Section 13 of the Sale of Goods Act, 1930 provides when ‘condition’ to be treated as `warranty’, relevant part of sub-section (1) & (2) thereof reads as under:-

“13. When condition to be treated as warranty. – (1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition or elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated.

(2) Where a contract of sale is not severable and the buyer has accepted the goods or part thereof, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract rejecting the goods and treating the contract as repudiated, unless there is a term of the contract, express or implied, to that effect.”

Distinction Between Misrepresentation and Fraud: Clearing the Imbroglio

Definition of Fraud as per Indian Contract Act, 1872:

Section 17:- “Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

(1) the suggestion, as a fact, of that which is not true by one who does not believe it to be true;

(2) the active concealment of a fact by one having knowledge or belief of the fact;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares to be fraudulent.

Explanation: Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.


(a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. This is not fraud in A.


As we can infer from the Indian Contract Act, misrepresentation is an innocent act of deceit whereas fraud inevitably includes the intention to deceive. As the deception is deliberate, the contract becomes void after fraud is proved whereas in case of misrepresentation the contract is voidable at the option of the party deceived. However, both are forms of undue influence as per Section 16 of Indian Contract Act.

Bellachi (Dead) by LR Vs. Pakeeran JT 2009(4) SC 298

Subject matter of the suit was a deed of sale dated 7th October, 1999 executed by the petitioner in favour of the respondent. The amount of consideration was shown therein to be a sum of Rs. 20,000/.Contention of the appellant in the said suit was that the said deed of sale is vitiated by misrepresentation, undue influence, fraud and collusion as she was made to believe that she would obtain financial assistance by executing the said document. According to her, she had reposed complete faith and trust in her brother who used to visit her place often. The law does not envisage raising of a presumption in favour of undue influence. A party alleging the same must prove the same subject of course to just exceptions. Hence, the plaint was dismissed.

State of Karnataka and Anr. Vs. All India Manufaturers Organization and Ors. AIR 2006 SC 1846

State of Karnataka decided to take up “Bangalore-Mysore Infrastructure Corridor Project” with a consortium. For the very same, Memorandum of understanding (MOU) was entered into between the petitioner and a consortium of companies.Government order (GO) was also passed. Members of consortium entered into an agreement for assigning their respective rights under the GO and MOU in favour of Nandi Infrastructure Corridor Enterprises Ltd. Nandi submitted a framework agreement (FWA) which was approved by the petitioner.One of the key obligations of petitioner under FWA was to make land available.Karnataka Industrial Areas Development Board entered into an agreement with Nandi for acquisition of private land. Henceforth, notifications were issued.FWA was challenged in public interest writ petition. The petitioner took the plea that they had given their consent due to misrepresentation by Nandi. The inference drawn by the High Court was that the plea of fraud and misrepresentation sought to be raised was not only an afterthought but also false to the knowledge of the State Government. The High Court, therefore, observed (vide Paragraph 27): “It is unfortunate that the petitioners and the State Government have chosen to raise this bogie (sic- bogey) to defeat the public project subserving public interest. On appeal, Supreme Court upheld the view of High Court regarding the plea of misrepresentation.

Union of India and Ors. Vs. R.P. Yadav AIR 2000 SC 2252

A contract had been entered between Indian navy and artificial apprentice. The question dealt with was whether artificer apprentice of Indian Navy who had been given re-engagement for certain period after obtaining his consent for it entitled to withdraw consent and demand his release from force as of right. It is the case of respondant in his writ petition that he agreed to be reengaged was based on the misrepresentation on the part of the appellants to him that he had only completed 11 years of pensionable service and that he required another four years to earn the pension. As such, it was contended he had a right to rescind the contract under Section 19 of the Contract Act. The appellants by sending Raj Kumar the “Expiry of Engagement Serial” expressly represented to him that he had put in only 11 years of pensionable service and that he should apply for extension for four years to qualify for pension. Therefore, the court held that the consent of artificial apprentice was obtained through misrepresentation.

Sri Tarsem Singh Vs. Sukhminder Singh AIR 1998 SC 1400

Parties entered into a contract for sale of certain land and certain amount was paid to petitioner as earnest money. Suit for specific performance filed when petitioner did not execute sale deed and decreed by Trial Court. In appeal Additional District Judge observed that both parties suffered from mistake of fact as to area of land and sale. Consideration was already paid by the respondent. Decree for specific performance was not passed but decree for refund of earnest money was passed which was confirmed by High Court and Supreme Court. The Supreme Court upheld that the respondent was subjected to misrepresentation by the petitioner as the latter made a false promise to sell the disputed property.

M/s. Arosan Enetrprises Ltd. Vs. Union of India & Anr. AIR 1999 SC 3804

The factual score depicts that on 24th October, 1989, the appellant furnished a performance bank guarantee for $ 29,28,000 and upon bank guarantee being furnished, the Government of India assigned the contract to the Food Corporation of India (FCI) under Clause 20 of the Agreement. FCI also in its turn opened a Letter of Credit for the full value of the contract though, however, as the records depict that while on 26th October, 1989, the Letter of Credit was opened by FCI but its authentication was not effected within the delivery date i.e. 31st October, 1989. Point to be noted is that the Bank, can not, by merely stating that there was non-supply of goods by the appellant, use the words “fraud or misrepresentation” for purposes of coming under the exception. The dispute as to non-supply of goods was a matter between the seller and buyer and did not, as stated in the above decision, provide any cause of action for the Bank against the seller.

How Telemarketing Services Can Attract Customers And Increase Sales Leads

The sales process of telemarketing services goes like this: Initial attraction generates sales leads… sales leads generate sales presentations… and sales presentations generate customers. So, assuming that an organization is effectively staffed to handle leads, presentations, and customers, is this: How do we create that initial attraction? Once that initial attraction is developed, the other elements fall into place with hard work and skill.

The first step in creating that “initial attraction” is to determine what kind of lead you’re after. If it’s business sales leads, for example, you can position your offering in such a way that will promote the benefits that your product or service offers to their business. If you can help them increase profit, decrease employee downtime, minimize expenses, or increase their customer base, tell them that! Always frame the concept in the terms of a benefit to the business. (Of course, for individual or personal sales leads, you need to frame the benefits in those terms).

Don’t fall into the habit of merely listing what it is that your product or service looks like or can do. These are the features of the product and they’re simply not important to the customer. What is important – what will attract sales leads – are the benefits. Forget “it smells nice”, or “it’s 3 feet tall” or “it comes in blue”. Instead, focus on what the customer gets out of it: “a more efficient office” or “increased profit” or “happier employees”. These are the things that businesses care about. These are the things that business sales leads respond to when a telemarketing services company offers them.

The second step is to disseminate the information. This is done through an effective strategy that may not necessarily start with telemarketing services. For example, you might have a mail-out campaign or a television commercial blitz and follow that up with telemarketing services. Sometimes, it’s appropriate to pick up the phone as the initial contact… this is telemarketing lead generation. When those people are interested in the benefits offered (no matter what initial attraction marketing strategy you used) and they respond to the marketing, they become business sales leads.

Now the third step: This is where you take those sales leads and you pick up the phone and start dialing. At this point it’s a combination of skill and hard work that will turn those sales leads into people who are willing to be presented to a little more formally (for example, with a visit to their office). Numbers matter here, so make sure that your staff are dialing and not wasting time on administrative or trivial work that can so easily distract employees.

Once your staffs has taken those business sales leads and turned them into warm prospects (for the formal presentation) it’s time to send someone in to present, close the deal, and turn them into customers.

In all, it’s a multi-stage strategy that starts with some kind of initial attraction to generate leads. And where it really makes the difference is when you take those sales leads and pick up the phone and use telemarketing services strategies to start the sales process.

7 Ways To Spend Less On Your Home Insurance Policy

Property is a prized possession, and to safeguard it from unexpected damages in the event of fire, flood, earthquake, etc. getting a home insurance is always necessary. However, if your existing health policy is exhausting your monthly income, listed below are a few sure shot ways with which you can control your home insurance costs:

1. Shop around: The decision of buying a home insurance policy should not be taken in haste. Instead, you must explore and make a list of insurance policies that are being offered by various insurance providers. You may also get insurance quotes online to estimate the costs of different policies. Choose a reliable company from which you can buy the comprehensive home insurance plan that suits your needs, and of course, your budget.

2. Increase your deductibles: Deductibles is the fraction of the claim that you have to pay before your insurer pays the claim as per the terms of the policy. The higher the deductibles you set, the lower premiums you will have to pay every month. However, you must set the deductibles as high you can afford.

3. Locate intelligently: Purchase the property in a strategic location but make sure that it is based away from the damage-prone areas. Reason being, if you live in a disaster-prone areas where flood, storm or earthquakes are a common occurrence, there are chances that your home insurance policy may have a separate deductible for such kind of damages.

4. Avoid making small claims: This is the most common mistake that many people make. You exhaust your policy in small claims thus leaving no room for bigger loss protection. Rather it is advised to deal with smaller issues on your own and keep this policy to protect your home from bigger catastrophic losses.

5. Improve home security: To avoid getting your home damaged from little mishaps, it is suggested to increase the security in your home by installing devices like smoke detectors, burglar alarm, etc.

6. Merge Policies with one Insurer: Just like you pool your internet, phone, and TV package, you can also merge your insurance policies with one insurer. Buy your health insurance, homeowners, life, and auto insurance plan from one insurance company and come out cheaper by bundling these insurance products together. You may also buy policies in a package that is less expensive as compared to single policies. It also liberates you from the trouble of policy renewal.

7. Eliminate Unnecessary Coverage: Don’t buy the coverage you don’t need. Like earthquake coverage is often unnecessary in most zones, don’t include jewelry if it is at a catchpenny price etc. Also exclude a land value from your policy. Covering land on which your house is constructed is simply of no use as it is unlikely that your land will be stolen or burnt is fire. So to save big, insure the value of your home only.

There are many insurance providers who offer age and profession discounts as well. Some times there certain discounts for retirees and people with good credit rating. Never eliminate the coverage that is important just to save your money as spending extra on important services will benefit you in the long run.

The Importance of Insurance Reviews

Most people reach out to their insurance brokers or underwriters when there is a significant event in their lives that necessitates new or revised risk coverage – perhaps when they purchase a new home or it’s time to trade-in the old car. However, far fewer remember to review their insurance at regular intervals or when more subtle changes to their coverage requirements occur.

Reviewing your insurance regularly helps ensure your coverage is what you expect it to be in the unfortunate circumstance that you need to file a claim. It also aids in making informed decisions regarding coverage and being proactive about minimizing your insurance costs.

There are many different circumstances that could possibly change your coverage requirements and prompt a call to an insurance professional for a review. The examples below identify some of the instances in which you might want to review your coverage:

  • Renovations – If you perform renovations to your house, it is likely that you are also increasing its value. Whether it’s a new kitchen, bathroom, pool, or even expensive landscaping, remember to check your policy limits to ensure they remain adequate in case of an insured loss. If you’ve recently renovated your basement, also note it is quite likely that your water damage insurance needs to be reviewed.
  • You’ve been accumulating possessions – Have you done a home inventory lately? Most people have more personal possessions than they think. Estimating the total value of your contents is vital to helping ensure your limits are adequate.
  • You’ve purchased a high value item – Remember that some of your personal possessions have to be scheduled to be properly covered. Jewellery, antiques, collectibles, wine collections, and art are a few examples of pieces that may require additional coverage.
  • New coverages have become available – The insurance industry frequently adapts to changing market conditions and offers coverage in areas that it has not in the past. For homeowners, insurance for overland water damage and home repair issues (such as broken furnaces) have recently become available from some insurers, in some areas. In addition, legal expense insurance, travel insurance, and pet insurance are available from brokers looking to cover more of your risk and insurance needs.
  • Laws changing to give you more or less choice – Changes to automobile accident benefits mean you should review your choices.
  • You become eligible for additional discounts – Changes in your personal circumstances may affect your eligibility for policy discounts. For example, if you install an alarm system you are likely eligible for a discount on your homeowner policy. If you use snow tires on your vehicle, many insurers offer a discount on your car insurance policy. If you pass the age of 50-55, you may become eligible for mature driver discounts.
  • If you change jobs and have a shorter commute – You should report this to your insurance broker as driving less typically correlates to lower risk and less expensive premiums. If you have a certain job occupation, you may also be eligible for lower insurance rates.
  • You’ve started a home business – A different use of your home, other than strictly residential, may require business insurance to properly cover liability risks.
  • Your personal circumstances change – If you get married or have children, you may want to review your coverage to ensure your coverage levels are adequate to look after your dependents in case of an accident.
  • Your child gets a driver’s licence – Always check to see if your child can be added to your policy. It is often the least expensive option for insuring them to drive. If they get their own car, you are also probably eligible for a multi-car discount.
  • If your child moves away to attend college or university – Check to see if your homeowners coverage can be extended to protect your child’s assets while away at school. It may be more cost-effective that purchasing a standalone tenants insurance policy.
  • If you haven’t had an insurance review in more than a year – Your coverage levels may be out of date. A key example of this is your home insurance. Property values and replacement costs can easily rise to the point that your existing coverage limits do not allow for the total reconstruction of your home in the case of a total loss.

Taking the time to speak to your insurance professional is always time well spent. Even if you don’t save on your insurance costs after the call, there is no substitute for having the coverage you expect when a claim becomes necessary. Since most insurance policies are for the term of one-year, it is a good idea to speak to your insurance professional before renewing your annual coverage.