Answers to your Legal Questions

DISCLAIMER: Lundy, Lundy, Soileau, & South LLP makes every effort to address your questions based on the accuracy of the information you provide. However, these responses are not intended to be a substitute for legal advice.

QUESTION: What rights do grandparents have to see their grandkids if the parents are getting a divorce?

ANSWER: If the parents are legally separated or have lived apart 6 months, the grandparents can petition the court for visitation rights. The court will order it if such is in the best interests of the children.

QUESTION: can class action be brought against FEMA for not giving everyone the same 2000 dollars isn't it discrimination.

ANSWER: In our opinion, no. FEMA, if you could even pursue a case against it as a class (which we doubt), would claim that individual reasons exist about why certain people were denied. This would defeat the ability to have the case be a class action.

QUESTION: My Aunt has a tree leaning over a neighbor's storage bldg. It will fall sooner or later. It was damaged from Hurricane Rita. The insurance company says it will not pay to remove it until it falls and hits something. The neighbors are concerned for personal safety as well as property damage that will occur when it falls. My Aunt's son refuses to spend the money to remove it now. Can she be sued directly when it does fall down? The neighbor claims that by bringing this to her attention, she is now directly liable and not her insurance company. Is this correct?

ANSWER: We believe you are correct. The owner of the tree is on notice of the hazard and would be liable for any damage caused later by the tree falling.

 QUESTION: After trees were uprooted in my neighbor's yard, they covered up the holes with dirt. In the process, they have covered a natural drain for water runoff. Now my yard is flooding as well as another neighbor's yard. The City has been no help and the lady refuses to dig up the ditch or allow us to do the work and labor of putting pipes underground. Is there any law that she has broken or is there anything I can do? My work shed is about to be under water.

ANSWER: She has to allow you your natural drainage. Send her a letter. Better yet, see an attorney and have the attorney send her a letter.

QUESTION: Regarding "Power of Attorney" can someone void the original person's power of attorney status without letting them know.

ANSWER: Yes, if the someone is the person who granted the power of attorney.

QUESTION: Is a handwritten will in Louisiana legal & binding?

ANSWER: Yes, provided it is clearly shown to be a will, is dated and signed by the testator and is entirely written in the testator's hand.

QUESTION: Three weeks ago I was employed by a well known restaurant here in Lake Charles they never informed me of what was being deducted out of my payroll check. When I received my first check they had taken one hour each day for breaks which I can never take, and they are taking $19.80 per pay day for meals which I can not eat. Is this legal and do they have to have my ok to deduct anything out of my pay check? What can I do? I've tried talking to the manager and his reply was that's the rules. And I asked why I wasn't informed of this before I was hired, and he said that he didn't have to tell me anything.

ANSWER: Neither practice seems legal to us. Your option is to demand to be compensated fully. The response may be to let you go, but in our opinion, you have a legal claim for compensation.

QUESTION: My insurance is with Allstate. My claim was submitted on November 5, 2005 . I received the breakdown on my claim on November 25, 2005 . I have yet to receive money for the claim. How long can the insurance company legally wait to pay you for your claim? My house is not livable so the claim is rather large.

ANSWER: There is a law in Louisiana that states an insurer cannot arbitrarily fail to pay within sixty days after receiving proof of loss or the insurer will face a penalty of 2 times the loss or $5,000, whichever is greater. Other than the threat of penalty, we know of no set timeline an insurer has to pay a claim.

QUESTION: Can a person renting to own a home relocate without notifying the owner due to needed repairs and roof damage?

ANSWER: The renter should advise the owner of any movement and should also advise the owner of the reason for moving.

QUESTION: When a man and woman get married, does the woman have to change her name? Can she continue to use her maiden name? Also how would this affect a passport?

ANSWER: A woman does not have to change her name. You should talk to the Passport Office about the effect on one's passport.

QUESTION: I have a neighbor who constantly trespasses on my land (i.e. standing in my yard and talking to a person down the street, allowing trash from their yard to come in mine, throwing their beer cans on my property, allowing their nieces, grandchildren to play on my property etc).I have told the children constantly to stay off my property and the adults in the h/h do nothing except to tell them to stay off my property. What can I do to stop this trespass? They are a nuisance and frankly my patience is wearing thin because they do not listen (as though they have some right to be on property that doesn't belong to them.

ANSWER: Legally, you can seek to have an injunction put in place to prevent such trespasses. However, the cost of such legal procedures are probably going to be prohibitive. A letter from an attorney warning the neighbors of civil liability related to such actions would likely help the situation and cost less.

QUESTION: It's just my husband and I, no children. If I die first I would like for him to have everything, and he wishes the same thing for me. But after we are both gone he has a brother in California that we would like for him to have all that's left. Can we write this out and have it witnessed and notarized? Will it be legal? We have no one else to leave our stuff too.

ANSWER: You may certainly write your wills to leave your property to whomever you wish. The wills can be written to cover the situation you describe to cover what happens after the death of one spouse. The brother has no legal right to either of your estates, unless you die first and your husband has no will. We suggest you hire an attorney to draw up wills.

QUESTION: My wife went to have her vehicle inspected Tuesday, and noticed that the insurance card was expired. So, she called her insurance company and they said that her insurance had not been paid since late August, although my wife had, at that time, set it up for the insurance to automatically withdraw the payment from our bank account. The lady with the insurance company said that they had sent us several letters in the mail, although we have not received any. My wife had the lady issue us a new policy. The lady said that we could be endanger of having to pay a fine for the lapse in insurance. My wife then called the DMV and the man there said that it had not been reported in the computer under either her name or mine (me being the primary). He said that if it was going to be reported, they probably would have already done so. That's encouraging, but we are worried about the possible repercussions of this. What could they be? Is this our fault? Do we have any recourse?

ANSWER: If DMV has no record of it, we would suggest you not worry about it. The insurance company must send you certified letters, we believe, to verify receipt in order to cancel your policy. Their cancellation may not have been successful, thus they did not send anything in to DMV. You need to correct the problem with the bank and payment of your premiums.

QUESTION: If I bought property that a neighbor pumps water through to irrigate does he have the right to continue using the canal on my property?

ANSWER: Normally, such a neighbor has a right of way or servitude on your property to allow him this access. This should be in the public record and would normally have been something he gave some value for. If the neighbor does not have such a legal right in a document, the neighbor may have acquired the right through a pattern of conduct in which the access has been allowed for so long that it is assumed the right exists. There could be other factors in your situation that may make it necessary for you to discuss this with an attorney in more detail.

QUESTION: I experienced roof damage during Hurricane Rita. My roof was repaired. It was after the repairs had been made that Blue Roof put a "Blue Roof" over my new roof. In the process of removing the Blue Roof, I noticed there are holes in my roof from the nails. Who would I speak to about this or would be responsible? I would like to be compensated for this second time of repairing the roof.

ANSWER: Blue Roof is responsible. We assume Blue Roof made a mistake in putting a temporary roof on your new roof.

QUESTION: I have sustained some damage from Hurricane Rita. How can a mortgage company hold a person's insurance check in there account and draw the interest off of it? Also, how can they tell you how to fix your property up?

They are telling you that you have to get an estimate and a w9 from the contractor and get approval. Then send in an estimate and then when the job is finished take a picture and send back to them proving that the job was done and then you will receive your check on what the estimate is. Now if the estimate is more than what the adjuster allowed and you knowing you're going to extra money that's left over from your insurance check they will only pay for what the adjuster allowed and the rest is out of your pocket. If you can find a quality contractor that will follow this procedure please let me know.

I was wondering since the check is made out to both of us can I get half of the check and start making repairs. Or does the whole check go to them where they can make interest off my money. The insurance is not through my mortgage company. Also, my awning and skirting was not bought off my mortgage and they will not give me the money to replace these items until it is done and a picture is taken.

ANSWER: Typically, lenders include in their mortgage contract provisions about their rights in relation to hazard insurance payouts. Often they will also require that they are named as an additional insured under the insurance policy contract which is obtain prior to closing of the loan. If your insurance Company is required to make a proceeds check payable to both you and your lender then your rights in this regard with your lender are governed by your mortgage. We suggest you read your mortgage provisions dealing with this issue and if you cannot work out a satisfactory arrangement with the lender, provide a copy of your policy to an attorney to review and advise you. You may also contact the Louisiana Department of Insurance to attempt to obtain some assistance with your lender.

QUESTION: I loaned someone money with a year to pay it back. We signed a notarized loan agreement which had a clause in it stating that if the loan was not paid back in full by a date, then a $10/day fee would be imposed until full payment. The set date has come and the loan has not yet been paid in full. What/Where is my next step?

ANSWER: Send them written demand, give them some time to pay voluntarily, and if they do not, file suit.

QUESTION: Does Louisiana still have a homestead law? If it does, what is the time you are required to occupy to seek a title.

ANSWER: Louisiana does have a homestead exemption and we know of no time requirement, meaning it is effective upon purchase.

QUESTION: I was married about 4 years ago; my question is that I own my own home, so I know my home is separate property in this marriage. My husband has his own house that he is still paying for. I would like to extend my den by knocking down a wall and just making it a little bit bigger. My question is will this make my home community property? In case of a divorce, would my husband have a share in my home? I plan to pay cash for this addition because a tree did fall on my den when the hurricane hit. I would like to make this new addition with some of the insurance money I'm getting from Hurricane damage. The insurance is in my name just like the house is .So what kind of claim would my husband have to my property if I extend my den. Thank you.

ANSWER: The character of any purchase during marriage depends on character of the funds used. We believe insurance funds would remain separate in your case and the addition to the house as well.

QUESTION: I have a rent house here in Lake Charles . The neighbors large pine tree fell in my yard and damaged the carport of the rent house. Who is responsible for the tree removal and the repairs to my rent house?

ANSWER: Report this to your insurance and let them deal with it. We believe insurers are not going to pursue tree owners in a hurricane case.

QUESTION : If a parent looses his legal rights to a child, (state took child away) is that child an heir if death takes the parent?

How do you determine the value of a company owned by a married couple? One has 51 shares and the other has 49. Do you use a lawyer, accountant?

If you own a home/land before marriage, and after 5 years redo the loan but still do not put the spouses name, is it then considered community property? Also the house was remodeled after the marriage and both spouses put out money and labor into the remodeling. I am trying to find out just what community property is and what isn't. If something was purchased before the marriage is it considered not CP?

ANSWER: 1. In our opinion, yes.

2. Accountant

3. It is community, except for the equity amount that existed prior to marriage.

QUESTION: We bought a mobile home about 6 months ago and are still waiting on the manufacturer to come out and fix the problems from moving the home. Is there anyone we can contact to help us get them out to fix the problems?

ANSWER: The Better Business Bureau might be a good place to start. You could also contact the agency that licenses mobile home sellers.

QUESTION: I'm looking at buying a house that has some hurricane damage. I made a statement in the buyer seller agreement that the seller must repair all hurricane related damage before sell is final. The seller and his brother will do the repairs. If six months down the road I have problems with the repaired area can I sue the seller?

 ANSWER: You always have the right to sue for any defective kind of workmanship; however, the best policy is to do a good inspection of the work before you pay for the house (or hold back some of the price depending on your acceptance of their work). An even better route might be to have a real contractor do the work, since the seller will have little incentive to do quality work for you.

QUESTION: The house we live in is all that is left of the estate of my husband's previous wife. She left him use of the house until he dies even if he remarried. When Rita came, I applied to FEMA in my name to get help with expenses during evacuation ($2,000) which we did receive. The house needs more financial assistance to put it right again than we will get from insurance. (We have a cracked foundation.) If we go for an SBA loan, we have to give FEMA number. We don't want to apply in my name for a loan, but we do want to apply in the name of the estate. Do we have to re-apply to FEMA and get a different number? We don't want a loan in our names because the house is really not ours as owners.

ANSWER: The SBA will probably accept your number. The SBA will be loaning the money to whoever applies for the loan: you, your husband or perhaps the heirs who will get the house when your husband dies. The SBA will not loan to an estate.

QUESTION: Is there a time limit my neighbor to get his trees out of my yard. , he doesn't seem to be in a hurry to do anything; He hasn't even removed small limbs that have fallen in his yard.

Also, it has been 30 days since our insurance adjuster has looked at our house and we have tried repeatedly to get a response as to what they are going to cover or allow and we can't even get him to return our phone calls or e-mails. Is there a time limit on the insurance company's response to our claim?

ANSWER: Louisiana Revised Statute 22:1220 states that an insurer is guilty of bad faith and can owe penalties and attorneys fees if it fails to pay "the amount of any claim ... within sixty days after receipt of satisfactory proof of loss ..." To impose this deadline on the insurer, you would need to get your own estimates of the damage and make written demand on the insurer to pay.

As regards your neighbor, the law would impose a reasonable time period for action. We are not sure what that is under the circumstances. However, you could always advise the neighbor that you are going to have it done and, if the work is not covered by your insurance or your neighbor's insurance, send the neighbor the bill. Hopefully, the issue of payment is just a matter of the insurance paying, whether it is yours or your neighbor's. We would suggest that if your insurance will pay for it, let them do it.

QUESTION: Because of Hurricane Rita we have 3-4 trees of my neighbors in my yard and taking up almost my entire sidewalk. The trees are still attached to my neighbor's trunk and in both our yards. Who is legally responsible for the tree removal? everyone I talk to has a different opinion.

ANSWER: Your neighbor is responsible.

QUESTION: During the hurricane, some of our trees fell onto our neighbor's property. Are we responsible for removing that part of the tree that is on our neighbor's property or the part that is on our property?


QUESTION: Our house was damaged during Hurricane Rita. The insurance adjuster came out, assessed the damage and wrote the check. The check was paid out to me, my husband and the mortgage company. When I called the mortgage company, I was told for both me and my husband to endorse the check and mail it to them. In turn, a check would be cut for us to start work on the house, and continue to send in receipts and a check would be cut for the amount of the receipts, etc. When all repairs have been completed, send a picture and inform them that we are happy with the work, all work is complete and the remainder of the money would be sent to us. Is this legal? Or must the mortgage company send the full amount of the check to us at once? Does the mortgage company have any right to keep any portion of the insurance check due to damages from the hurricane?

ANSWER: Your mortgage Company has certain rights under your mortgage in the event of a major damage loss to your home. Prior to your obtaining your home loan your lender probably required proof of insurance, which included proof that the lender had been listed as a mortgage holder on the policy. We suggest you pull out your copy of your mortgage and read the relevant section and then call and ask your mortgage holder's representative what provision of the mortgage or other loan documents require you to forward insurance proceeds to them. If you're not satisfied with their answer, bring your mortgage and any other relevant documents to an attorney for review. In addition, you may wish to contact the Louisiana Department of Insurance to obtain further information.

QUESTION: Who is legally responsible for tree removal caused by hurricane Rita? A tree from my yard fell into a lot (empty) owned by a neighbor. I am told that everyone is responsible for their own property. Also, he has cut up the tree, and stacked it in my back yard. Is this legal?

ANSWER: Generally speaking, if your tree falls and causes damages, you or your insurer is responsible. We see nothing illegal about a neighbor cutting up your tree and stacking it in your yard.

QUESTION: Is the point of origin from where a tree fell during the hurricane the party libel for the damage? who is responsible if your neighbor's tree fall on your property and does damage or vice versa.

ANSWER: Report the damage to your insurer and let your insurer decide whether to pursue the tree owner. Under the circumstances of a hurricane, the fault may lie with the storm rather than the owner of the tree.

QUESTION: I paid in full for my September 2005 rent. We had the mandatory evacuation on 09-22-05 . He is saying that he will not prorate or give any credit for the days that I didn't live there in September due to the hurricane. Do they not have to adjust?

ANSWER: Rents likely continue unless the dwelling becomes uninhabitable. FEMA relief checks are a way to offset the need for alternate housing while still owing on rent in the evacuated area.

QUESTION: I have heard rumors that FEMA can come back and take the $2000.00 back that was issued to us for Rita? Also, I heard that we would get reimbursed for the generator and chain saw we bought? Is that true and if so what do we have to do?

ANSWER: We do not believe FEMA can or will seek reimbursement of the $2,000. Regarding the chain saw and generator, our advice is to seek reimbursement for these items. If it is denied, we would not recommend pursuing it any further.

QUESTION: I live in Welsh, LA and I am sure you have heard this story several times lately - but I am so frustrated with FEMA. I was denied the expedited assistance - I have been given several reasons as to why. Once I called and they told me it is because I was living back in my house. Another time was because I did not have enough damage to my house. Another time was because on my application I stated that I did not need shelter. I have about exhausted all resources on trying to get this reversed. On Oct. 5, I filed an appeal and was told today that they finally received it on Oct. 20. My husband and I evacuated for seven days when the storm came through. We were told not to come back to town until the restrictions had been lifted. So that's what we did. On Oct. 10, I called the local number that KPLC gave and filed my name with them. They said it would take 10 days to hear from them. Now they are telling me 14-21 days. FEMA has been out to my house already. I have even gone to North Side School in Jennings and talked to a FEMA representative there who said 99% sure I would be getting it. That was on Oct. 12. They made copies of my appeal letter and a copy of the application I received from FEMA. By the way, now FEMA tells me that on my application (which was done online) that I showed that I did not need shelter or clothing, just food. Well on my application I received from them - I said yes to needing shelter. I put that it was a mandatory evacuation and that we stayed gone for 7 days. I am at the end of my rope and I cannot seem to be able to talk to anyone who can help me.

ANSWER: You need to keep pushing FEMA. We have no ability to sue FEMA for denying claims.

QUESTION: I'm an Evacuee from N.O. My brand new apt. complex had a rodent (rats) problem before the storm. They attempted to resolve the problem with sticky things that always had results on them. This did not help the problem. They said they didn't and don't know what to do. Since the hurricane they are worst. Since the Hurricanes they sustained wind and storm damage, which caused mold and mildew in my apt. I have not paid my rent because they still refuse to solve the rodent problem. I have an infant and small children in my home. What recourse do I have

ANSWER: If you are living there, you owe some rent. Probably not the full amount, but some for the housing you are getting. If the problems are so bad you want to leave, we believe these problems allow you to break the lease and move out.

QUESTION: Can my landlord legally charge me rent while the property is uninhabitable from hurricane Rita?

ANSWER: Not unless you are still living there. If you are living there, the rent should be reduced.

QUESTION: Do I have any rights to protect my house and property from trees that I feel are a threat to my home and property? From this past storm I am told wherever the tree falls that person owns the tree and has to pay for damage that the neighbor's tree has caused. If I know that a tree is a threat what can I do to protect my property before it happens.

ANSWER: A tree is owned by whomever owns the property on which the tree sits. If the tree falls on a neighbor's property, any damaged caused to the neighbor's property is the responsibility of the tree's owner. The only way you can protect yourself is to tend to your trees. If it is your neighbor's trees you are worried about, there is little you can do other than talk to the neighbor. If the neighbor's tree causes you damage, the neighbor owes you for the damage.

QUESTION: What are the legal obligations of employers to their displaced employees during a mandatory evacuation with loss of wages due to work absence? Are the employers obligated to pay employees?

 ANSWER: We know of no obligation of an employer to pay employees who are absent due to a hurricane. The only obligation that is storm-related of which are aware is that an employer cannot dismiss employees who cannot make it in to work due to a mandatory evacuation.

QUESTION: If a neighbor's tree falls on your property who is liable to have the tree cut off of your property? Tree cutters are telling the neighbors that they only cut to the property line. Is this correct?

 ANSWER: The owner of the tree should have the tree cut and removed from wherever it fell.

QUESTION: I haven't lived in my apartment for three weeks and it is still unlivable due to Rita. My apt. manager is still charging rent. She also says there is a little clause in the contract that says we have to pay in the event of a hurricane. Is this legal?

ANSWER: No. Our recommendation is that if you are not living in the apartment because it is uninhabitable, do not pay rent.

QUESTION: Due to Hurricane Rita, FEMA has determined my house to unlivable. I am renting at this time. Am I responsible for rent while I am not in the house and it is being repaired? Or can the landlord suspend the rent payments until the house is livable again?

 ANSWER: You are not responsible for rent while the apartment is uninhabitable. Once you can move back in, the rent starts up again.

QUESTION: My 77 year old father has had a lady "companion" living with him for about 6 years. Will she have any rights such as "common-law wife"? He has been in poor health the last 3 years. I have assisted him in all medical issues and I am the executor of a will written 6 years ago. I just need to be informed in the event we should sadly lose him.

ANSWER: Louisiana does not recognize common law marriages; however, if your father has a will, he can leave portions to whomever he wishes.

QUESTION: I live outside of Lake Charles city limits in the Moss Bluff area. I have a neighbor who owns several large dogs and who does not take care of their land. Their backyard borders ours, and they never cut the grass. I have a child who is allergic to mosquitoes, and there are mosquitoes the size of bats out there next to that four foot high grass. Does the parish handle situations like that? How can I get my neighbors to take better care of their yard?

ANSWER: We recommend you call Calcasieu Parish to see what help they can give you regarding making an owner of a house maintain the grass. We believe the Parish can force maintenance. e doubt you can rely on an opinion regarding the wiring that the landlord does not know about and may not agree with. Our suggestion is to talk to the landlord and tell the landlord what you have learned and get the landlord's reaction.

QUESTION: If I live in a house that is a rental, and I am informed (not by my landlord) that the wiring inside and the breaker-box is faulty, is the landlord obligated to repair them? Can I legally withhold rent payment for repairs or until repaired? Must I inform them in writing, or is word-of-mouth sufficient?

 ANSWER: You cannot force the landlord into this work by withholding rent. If the landlord refuses to do the work you think needs to be done, and you believe the faulty wiring presents a hazard to you, you have the option of moving out. Be warned, however, that if you move out before the lease is up; the landlord could sue you for rent on the basis that your fears about the wiring were unfounded.

QUESTION: I have a claim against someone's homeowners insurance. The lady hit me in the mouth with a golf club and broke my tooth. State Farm is paying for my crown and says they will be paying me negligence. How much should I be expecting for the negligence? Should I involve an attorney? I did not loose any time at work because I am a housewife, other than the time I spent at the dentist's office and 3 weeks with a temporary crown.

ANSWER: It is hard to put a price on the general damages. It is really a matter of what you will accept and what State Farm is willing to pay. Each case is different.

QUESTION: Will a signed/notarized statement from the father releasing his paternal rights be sufficient enough to remove him from the birth certificate and allow for the child to be adopted?

ANSWER: No. There are some very specific rules that apply to one parent giving up his/her parental rights. You need to hire an attorney experienced in such matters to help you. The Court has to approve such actions.

QUESTION: How do I get a divorce from someone who is in jail? About how much will this cost?

ANSWER: It is not a problem. You have the person served in jail. If the divorce is uncontested, the cost can be as little as $500, we believe. Contact an attorney for more specifics.