This month, for a change of pace, we are bringing you a LAWCHEK™ ALERT! from our partner and legal site Lawchek.com. This article reviews the questionable changes that have occurred relative to bank "holds" on customer deposits. These changes can effect everyone from the individual customer to the small business owner.

CUSTOMER DEPOSITS: ILLEGITIMATE REVENUE STREAM FOR BANKS?
Richard A. Pundt, Attorney at Law

For quite some time now, certain banks and other financial institutions may have been profiting from what some members of Congress are calling an illegitimate revenue stream, namely, the deposits of its' customers. Today, many banks will place “holds” on customer deposits. Such customer deposit “holds” are for ten business days and usually translate into a ½ month use of the funds deposited; In this way, banks are able to benefit from the interest on customer funds. This questionable practice has caused outrage by depositors and has ignited the concern of key members of Congress.

Congressman Michael Oxley (R-Ohio) has stated: “Holding a deposit to ensure its safety and soundness is reasonable. But holding a deposit in order to profit from the interest is completely unacceptable. The latter practice prevents consumers from realizing the benefits of their own assets, while creating an illegitimate revenue stream for financial institutions. It unfairly penalizes consumers and should be eliminated from the U.S. payment system.” 1

From an analysis in a report by Ms. Laura Bruce of www.Bankrate.com, it is revealed that there are many concerns relative to the new federal enactment of the Check 21 Act. "Check 21" allows the checks that individuals write to clear within one to two days while the deposit may be held by a bank for up to ½ month when weekends are added to the allowable ten day hold under “exceptional” circumstances of the FED Regulations. As a result, the consumer may get “nailed” for overdraft charges if the consumer was counting on the deposit and, in addition, the banks have been keeping the interest on the funds “held” through the deposit delay. Ms. Bruce also notes in her article 2 that Congresswoman Carolyn Maloney (D-New York) has introduced HR 5410 that would “…redress imbalances between the faster withdrawals permitted under the Check 21 Act and the slower rates for crediting deposits.”

Examples of bank customers delays due to the banks “hold” practices is very wide-spread and, undoubtedly, has accounted for hundreds of millions of dollars worth of profits for banks. Consumers, realtors, businessmen, and attorneys are becoming increasingly aware of these practices by the banks. This author has encountered quite a number of reported instances where consumers experienced an improper deposit delay or hold for an unreasonable period of time.

Of the many instances reported to this author, there are three that merit review in regard to the issue of deposit “holds.” The first instance involved a very well-respected attorney who deposited over $200,000 into his attorney trust account at a well-known bank and was verbally informed, after the deposit had been made, that there would be a ten business day “hold” on the deposit. He did not receive any written notice as prescribed by Federal Reserve Regulation CC (Availability of Funds and Collection of Checks, 12 CFR 229). This particular attorney had never over-drafted his account and has always maintained a sterling reputation with the Bar, as well as other attorneys. Moreover, the deposit consisted of checks from State Farm Mutual Ins. and John Deere Inc. The attorney directed a hand delivered correspondence to this well-known bank, wherein he requested an immediate removal of the “hold” or, in the alternative, an explanation as to whether the bank in question believed that checks from either State Farm Mutual Ins. or John Deere Inc. would not clear or if there was any improper activity by State Farm Mutual Ins. or John Deere Inc. in regard to: (a) any suspected criminal activity, (b) any suspected money laundering, (c) any suspected terrorist activity, or (d) any other improper activity that would mandate the holding of either check. Needless to say, the bank could not accuse either State Farm Mutual Ins. or John Deere Inc. of any such activity, yet the bank continued its “hold” on the deposit to the trust account from December 7, 2005 until December 20, 2005. The attorney has never received a written or an oral explanation, as he requested in writing, for the hold as prescribed by Federal Reserve Regulation CC (12 CFR 229).

The second instance involved a well-respected realtor who deposited between $200,000-$300,000, as a result of a closing, into his account at the aforementioned bank. He was unaware of any “hold” on the deposit. The realtor issued various checks, as customary, to: other financial institutions, the seller, realtors, an insurance company, taxing authorities, and others. When the bank in question refused to release its “hold,” the realtor’s checks bounced and a significant amount of distress and embarrassment was the result for all parties concerned, except, of course, the bank that profited in two ways: from the interest on the deposit and from the overdraft charges.

The third, but surely not final, instance involved a party who received a Cashier’s Check from a centrally located and well-known bank and, on the same day, deposited the Cashier’s Check into an account at a branch of the same bank. The branch placed a “hold” on its' own main bank’s Cashier’s Check. What is especially interesting about this case, other than the fact that it was the bank’s own Cashier’s Check, is the fact that under Federal Reserve Regulation CC (12 CFR 229), a Cashier’s Check, as well as a check drawn on an account held by the same institution, must be made available on the first business day following the day of deposit.

It would seem that compliance with Federal Reserve Regulation CC (12 CFR 229) is being ignored by several of the largest banks. According to the article by Ms. Bruce, as noted above, proposed legislation HR 5410 has been presented in Congress to benefit the consumer. The legislation is being introduced in order to counter the Check 21 Act that allows the checks written by consumers to clear faster than the actual deposits made at the banks. It is noted in the article that Representatives from Wells Fargo Bank and Wachovia Bank have stated that their banks place holds on less than one percent of all deposits. If one were to consider the dollar magnitude of that one percent, especially if such deposits are for more than $5,000, a substantial windfall of interest profits are the likely result for the banks placing the “hold.” Perhaps the one percent accounts for hundreds of thousands of deposits each day and, if the average dollar amount of such deposit is $10,000 (most likely it is much more), the money on hold by the large banks at any one time would be in the hundreds of millions of dollars for which the banks gain interest on consumers assets, as noted by Congressman Oxley.

Under the Federal Reserve Regulation CC (12 CFR 229), it is mandated that interest should be paid to the consumer (See Regulation CC (12 CFR 229.14)). It is, therefore, understandable why Congressman Oxley has stated that such practice by the banks “…prevents consumers from realizing the benefits of their own assets, while creating an illegitimate revenue stream for financial institutions."

Under Federal Reserve Regulation CC (12 CFR 229), the following deposits must be made available on the first business day following the banking day of deposit: (1) Cash, (2) Electronic Payments, (3) U.S. Treasury Checks, (4) U. S. Postal Service Money Orders, (5) Federal Reserve Bank and Federal Home Loan Bank Checks, (6) State or Local Government Checks, (7) Cashier’s, Certified or Teller’s Checks, (8) Checks drawn on an account held by the same institution upon which the check is drawn, and (9) the first $100, or if less than $100 the entire amount, of all other checks. In the case of the individual who had deposited a Cashier’s Check into an account that was held by the same bank upon which it was drawn, both subsection 7 and subsection 8, as noted above, were ignored.

On other deposits that are not listed above, including the proceeds of local and non-local checks, the checks must generally be made available for withdrawal by the second and fifth business day respectfully following the deposit (See Regulation CC (12 CFR 229.12)). In the case of the attorney, and in the case of the realtor, as noted above, if the deposited checks were local, the deposit should have been credited within two days, and if the checks were non-local, the checks should have been credited within five days. There should not have been an arbitrary hold for ten business days or a ½ month total hold on the deposits.

However, there are exceptions set forth under Regulation CC (12 CFR 229.13), and those exceptions involve: new accounts,3 large deposits, repeatedly overdrawn accounts, or emergency conditions. The only exception of the above examples involving the attorney or the realtor, as given, would be the exception of a large deposit since our investigation ruled out any other scenario. In the case of large deposits, the bank must provide a notice to the consumer (See Regulation CC (12 CFR 229.13)), and that notice must be in writing (See Regulation CC (12 CFR 229.15), (12 CFR 229.16), (12 CFR 229.17) and (12 CFR 229.18)). Additionally, and under Regulation CC (12 CFR 229.14), interest must be paid on interest bearing accounts no later than the day the bank receives credit for the funds deposited.

It would appear that certain banks may be circumventing the requirements of Federal Reserve Regulation CC (12 CFR 229), and that is undoubtedly one of the reasons that Congressman Oxley has expressed concern, and why Congresswoman Maloney is reintroducing HR 5410. As a practical matter, most customers drop the issue once they actually receive their funds, which have been held by the bank, because they wish to maintain a good standing relationship with the bank. So does that mean that nothing can be done? The answer is no. Something can be done, but it requires positive action by the customer.

First, the customer may file a complaint with the Federal Reserve at: The Board of Governors of the Federal Reserve System, Division of Consumer and Community Affairs at 20th and C Streets, N.W., Stop 801, Washington, DC 20551. Additionally, the consumer may file a complaint with the respective State Banking Commissioner in the state where the violation occurs. Also, contacting the proper parties within Congress, such as Congressman Michael Oxley (R-Ohio) or Congresswoman Carolyn Maloney (D-New York).

Finally, there is a civil remedy expressly set forth under Federal Reserve Regulation CC (12 CFR 229.21). The civil remedy allows for both individual and class actions. See Regulation 12 CFR 229.21 (a) (2) (i) and (ii). The statute provides a limitation on class actions that includes actual damages up to $500,000 or 1% of the net worth of the bank involved (the lesser of the two) plus costs and attorney fees.

The summer has a pull for us, no matter our age. It is a time to take a few days off work, barbeque in the backyard, go for a picnic, a hike, a swim, a bike ride or go out on the water on our boat. It is also a time to mow and weed the lawn, plant flowers and finish countless chores around the home that have been put off until the weather "cooperated." Needless to say, summer is a busy time when we do more activities and chores and can very easily overexert ourselves. That is why this month we are focusing on some tips that can help you have a fun and safe summer. Part of having fun is being aware of what precautions you should take and how you should plan ahead for whatever you choose to do. But we know you are busy, so here is the quick list for a safe summer!

Barbeque and Food Safety:

Always check your grill before using it after a long seasonal break. If propane is used make sure to check all the connections! Check your individual user manual for your grill; all of these will have a checklist of items to review that are specific to your make/model.

Grills are for outdoor use only. NEVER bring a grill indoors to cook. Carbon monoxide will accumulate and can be fatal.

Always set up the grill away from the home (at least 5 feet or more).

If using a charcoal grill, use a charcoal lighting fluid instead of gasoline. Make sure to let the fluid be absorbed by the coals before lighting. Move the lighter fluid away from the grill before lighting. Once you light the fire, stay with the grill, never leave a cooking grill unattended.

That goes for all of you - NEVER leave a cooking grill unattended! Have baking soda handy for a grease fire and a fire extinguisher on hand as well.

For safest results, always grill with a meat thermometer. See the recommended meat temperatures to the right.

Before cooking or preparing anything - wash your hands! In between working with different dishes - wash your hands!

Invest in some long cooking utensils for the grill - this will help prevent burns!

For best grilling results, thaw frozen meats before cooking them on the barbeque. The safest way to thaw foods is slowly in the refrigerator.

If you use the microwave to defrost meats, then make sure you are grilling them shortly afterwards and not storing them again before cooking.

If marinating food then do so in the refrigerator - not on the counter! If you want to have extra marinade to use as a sauce later, make sure to separate a portion ahead of time. Never reuse marinating sauces!

Use one plate for taking meats to the barbeque and another clean plate to take cooked items to the serving area. Never use the same plate. The raw juices can contaminate your cooked meats and side dishes.

When hosting a barbeque, make sure to supply plenty of clean plates and utensils. Encourage guests to get a new plate if theirs has been sitting out in the sun and became a playground for flies, ants, etc. as they waited between helpings.

That evil mayo - did you know according to the Department of Health, it is not really the mayo that is making that potato salad a dangerous game of chance. Instead it is the fact that when making salads usually the ingredients are mixed together when still warm creating a breeding ground for bacteria. Instead, chill all your ingredients separately before mixing them together.

Refrigerate any left over food within 2 hours of its initial serving. If the temperatures are higher, then 1 hour or earlier. Meat should be be kept hot for serving (140°F) and unused meat should be refrigerated immediately as it cools. If you have too much left over meat, make sure to freeze whatever you won't eat within the next 2 days.

When you shut off the grill make sure to shut off the propane as well.

For a charcoal grill, let coals burn out completely. The ashes should sit 48 hours before being disposed of in aluminum foil in a noncombustible container.

Food Safety on the Road:

Wash all fruits and vegetables. Even those with tough outer skins that you do not eat. When slicing these the knife may pick up bacteria from the outer skin.

Pack drinks and food in separate containers. The drink cooler is opened more often changing the internal temperature. This way the food container is disturbed less often and can remain colder.

Once at your destination, keep the cooler(s) out of the direct sun. Keep them in the shade, covered with a blanket. If on the beach, burry it partially in the sand in a shady spot or under an umbrella.

If grilling at the park and you need to dispose of ashes, make sure to place them in heavy duty aluminum foil and soak them in water before placing them in a noncombustible container.

If you use a recreational vehicle such as a camper, always review any canned foods that may have been left there. If temperature fluctuated and cans were frozen and thawed then they need to be discarded. Make sure to thoroughly clean the refrigerator out before using it this travel season.

Bug Prevention:

The best insect repellents contain DEET. However, they should not be used on children under 2 months of age. Also, bug repellent should be applied once per day. Do not get a sunscreen/bug repellent combo as you will need to reapply the sunscreen every two hours.

Avoid using scented soaps and perfumes. Also be careful with bright colored clothes as they attract certain bugs as well. Be extra careful around stagnate pools of water, heavily flowered areas and unused areas as these are more likely to be nesting areas or feeding areas for bugs.

Wear hats and long sleeves in the woods. Make sure to examine clothing and scalp for ticks. If you find a tick gently pull it out with tweezers. Do not use your fingers as you may squeeze it too hard. The methods of burning ticks with matches or suffocating the tick with nail polish don't work for removing ticks from the skin. If you live in a wooded area, try to keep your yard well maintained, ticks do not like direct sun and are looking for overgrowth areas.

Lawn Mower Safety:

Nearly 75,000 Americans are seriously injured in lawn mower accidents each year. About 10,000 of those injuries involve children. Data from University of Michigan

Always read and review your owner's manual at the start of the mowing season. There will be specific checks you will need to perform.

If you can, get a mower with an easy kill switch, a double handle that stops the motor when dropped is a good design to have.

Keep children and pets indoors or well away from the lawn mower at all times. Don't let children ride on the mower for "fun" and it is recommended that children not operate mowers until 16 years of age.

Pick up debris before mowing the lawn.

Wearing protective eye gear is also recommended.

Wear sturdy shoes when mowing. Never move the mower back towards your feet, always go forward.

Sun Safety:

The harshest time to be out in the sun is between 10:00am-4:00p.m. This includes cloudy days as the sun still penetrates the clouds although you may not feel it. During these hours of the day you should have a sunscreen of 15SPF or higher. Sunscreen should be applied 30 minutes before going outside and reapplied every two hours. During really hot hours, stay indoors as much as possible.

Sunglasses that protect you from at least 90% of UV sunlight should be worn.

Dress for the heat. Wear light colored clothes of a breathable fabric, such as cotton. Wear a hat or use an umbrella if in direct sun for long periods of time.

Drink plenty of water, drink water even if you do not feel thirsty as you need to keep your body hydrated. Avoid drinks with caffeine or alcohol as these will only aid dehydration.

Eat smaller meals more often. Eat less protein to reduce metabolic heat.

Avoid strenuous activity. If you are going to be doing really strenuous work or sports, do them early or late in the day. Take breaks often!

Need to know "HEAT" definitions:
Heat definitions from www.redcross.org

• Heat Wave: More than 48 hours of high heat (90°F or higher) and high humidity (80 percent relative humidity or higher) are expected.
• Heat Index: A number in degrees Fahrenheit that tells how hot it really feels with the heat and humidity. Exposure to full sunshine can increase the heat index by 15°F. Heat cramps:
• Heat cramps are muscular pains and spasms due to heavy exertion. They usually involve the abdominal muscles or the legs. It is generally thought that the loss of water and salt from heavy sweating causes the cramps.
• Heat Exhaustion: Heat exhaustion is less dangerous than heat stroke. It typically occurs when people exercise heavily or work in a warm, humid place where body fluids are lost through heavy sweating. Fluid loss causes blood flow to decrease in the vital organs, resulting in a form of shock. With heat exhaustion, sweat does not evaporate as it should, possibly because of high humidity or too many layers of clothing. As a result, the body is not cooled properly. Signals include cool, moist, pale, flushed or red skin; heavy sweating; headache; nausea or vomiting; dizziness; and exhaustion. Body temperature will be near normal.
• Heat Stroke: Also known as sunstroke, heat stroke is life-threatening. The victim's temperature control system, which produces sweating to cool the body, stops working. The body temperature can rise so high that brain damage and death may result if the body is not cooled quickly. Signals include hot, red and dry skin; changes in consciousness; rapid, weak pulse; and rapid, shallow breathing. Body temperature can be very high--sometimes as high as 105°F. Call 911 or your local EMS number. Move the person to a cooler place. Quickly cool the body by wrapping wet sheets around the body and fan it. If you have ice packs or cold packs, place them on each of the victim's wrists and ankles, in the armpits and on the neck to cool the large blood vessels. Watch for signals of breathing problems and make sure the airway is clear. Keep the person lying down

Sun Safety for your Pet:

Dogs and cats don't sweat to lose excess heat, instead they pant. Most of our pets know better and will not over exert themselves in high heat. However, if chained in the sun or locked in a car, there is little they can do to avoid it. Never leave you dog unattended in a car. Although it is only 75°F outside, in the car it can reach up to a 100°F in one half hour. If you return to your car and your pet is agitated, wide-eyed and panting rapidly they may have heat stroke.

Always provide shade and water for your pet on hot days. If there are heat wave warnings bring them inside with you.

Animals have a natural higher temperature than humans (100°-102°F for both cats and dogs). However, anything 105°F is a sign of heat stroke. Other signs of heat stroke in animals include rapid panting, wide eyes, salivating, pale and dry gums, staggering and weakness. They may even become unconscious.

The best way to treat heat stroke is to get them wrapped in wet towels and fan them as you would a human. Some suggest immersing them in cold water, but depending on the severity this may be too much too quickly. Also run cold water in their mouth. Keep track of their temperature, get them down to 103°F. Call your vet or animal hospital immediately.

Hiking Safety:

Plan ahead for any hiking trip. Take a look at the route and consider what equipment and skills you may need. Discuss emergency plans with your group before heading out. Know where the nearest ranger station is from where you start. Also, leave a detailed itinerary with someone back home. Let them know what car you are taking, where you will be starting and how long you expect to be.

Always hike with at least one other person. In more remote areas it is suggested that you hike with at least four people in your group. This way you will have one to stay with an injured person and two to go for help.

If a trail is marked as closed DO NOT go there. If an area requires special permits - DO NOT go there unless you have already obtained them.

Be prepared for bad weather and extreme weather changes. You should have enough supplies to get you through a night if needed.

Always assume the water from streams and rivers is NOT safe for drinking.

A Hiking Backpack Checklist:
Info from www.redcross.org

• Candle and matches
• Cell phone
• Clothing (always bring something warm, extra socks and rain gear)
• Compass
• First aid kit Food (bring extra)
• Flashlight
• Foil (to use as a cup or signaling device)
• Hat
• Insect repellent
• Map
• Nylon filament
• Pocket knife
• Pocket mirror (to use as a signaling device)
• Prescription glasses (an extra pair)
• Prescription medications for ongoing medical conditions
• Radio with batteries
• Space blanket or a piece of plastic (to use for warmth or shelter)
• Sunglasses
• Sunscreen
• Trash bag (makes an adequate poncho)
• Water Waterproof matches or matches in a waterproof tin
• Water purification tablets
• Whistle (to scare off animals or to use as a signaling device)

Survival Pack - one pack should be carried by EACH person in your group and should include: a pocket knife, compass, whistle, space blanket, nylon filament, water purification tablets, matches and candle in a waterproof container.

Bicycle, Skateboard & Scooter Safety:

Always wear a helmet when bicycling. If on a scooter or skateboard, wear the proper protective gear such as knee and elbow pads and a helmet.

Only ride a bike that is properly fitted for you. If not fitted correctly you may hurt your knees, back, arms and will not be able to maneuver or stop as well as you should be able.

When entering the roadway from the driveway - always look! This is a high accident area as many cars do not see those coming out of driveways on bikes, skateboards and scooters.

If traveling on the road, make sure to follow all the road signs and lights. Bicyclists should follow the same rules as cars and use standard hand signals. Skateboard and scooter users should be extra carful on roads as well. HOWEVER, it is strongly suggested that scooters users stay on sidewalks and skateboarders stay well away from roads, preferably skate at the skate park.

Be predictable. Do not weave in and out of the roadway or cars. If you come to an obstruction in your path, stop and look around and behind you before going around it. A sudden swerve out into the road will not be anticipated by automobiles that are traveling much faster than you are.

Pay attention at all times. Obstructions such as wet leaves or loose gravel may come upon you quick if you are not paying attention. Also be careful around parked cars, you may not see someone opening the car door until you are right on top of it.

Try to avoid being out on the road at night or in bad weather. If you are out, be extra careful; imagine the cars cannot see you and ride defensively. You should have bright colored clothing and reflectors or battery operated lights as well.

All skateboarders should learn out to fall. Considering fractures and breaks from falls are the most common skateboard injuries, knowing how to brace yourself is important. If starting out in the sport, start small, skateboarding is just like any other sport, it takes practice and time to develop the skill.

When riding on the trails always give pedestrians the right of way. If passing from behind let them know by using a bell or stating "on your left," before passing. Keep a controlled speed on trails as you do not always know who is there around the bend. If the trail is shared with horses, slow down and give them a wide space when passing. Again, let them know you are coming by stating "on your left."

Water Safety:

Learn to swim! This is a skill everyone should take time to learn. Even the basic knowledge can help!

Children and inexperienced swimmers should use an approved floatation device/life jacket when in or, in the case of children, near the water.

Never leave a child alone around water. Make sure someone is watching them at all times!

Never swim alone. Always swim with a friend or in a supervised area. Never snorkel alone. Never surf alone.

Read and OBEY all posted signs. Do not dive in the water unless the area is clearly marked as safe. Even when marked, make sure to check for any person or debris below before diving. If the area is not marked, always enter feet first.

If swimming in lakes, rivers, or the ocean, be familiar with these bodies of water. Make sure you are aware of risks such as debris, under tows, and currents. Also, always be aware of your energy level; you need enough energy to make it back to shore!

Pay attention to your surroundings. Pay attention to the weather. At the first sign of bad weather, leave the water!

If pulled out by an ocean current do not swim against it. Instead swim parallel to it gradually moving towards the shore. You have to move out of the current by swimming across it before you can head back inland. Think of an arc instead of a straight line.

Check surf conditions before entering the water. Keep away from piers and pilings when in the water. Watch out for wildlife and have some basic knowledge of what animals and plants are in the water. Know what you need to avoid and leave wildlife alone!

Do NOT mix alcohol and swimming activities - they do not mix!

If you own your own pool, make sure it is supplied with emergency equipment and first aid. Keep a phone nearby and have instructions for emergencies posted. Have CPR instructions and make sure to take lessons in CPR. Every adult responsible for watching kids around the pool should have CPR training.

Take lessons before attempting SCUBA diving. Never dive alone. Only dive for areas you are trained for. Be familiar with your equipment and check it often.

Boating & Watercraft Safety:

Always have on life jackets. Make sure they properly fit everyone on your boat - especially children!

Learn to swim! Also, take a boating class, learn everything from navigation rules to information about your particular boat.

Do NOT mix alcohol and boating activities - they do not mix!

Let someone on shore know how long you will be gone and where you are going.

When using jet skis or other personal watercraft make sure to know the rules of the water body you are on and obey these rules. Be courteous to others and look out for swimmers, skiers in the water, etc.

Do not water ski at night. Always have someone in the boat to watch and aid the skier. Always approach a skier in the water with the engine off.

If fishing, scale, gut and clean the fish as soon as they are caught. Wrap fish separately in plastic and keep on ice. It is recommended that fish be cooked and eaten within 2 days or frozen. Frozen fish can last up to 6 months. Shellfish should be kept alive until cooked. Lobsters and crabs should be cooked the same day they were caught. Oysters, mussels and clams should be cooked within 5 days.

Both the front and back yards of our house offer a buffer between our home and the outside world. Often, especially in the case of backyards, they may be manipulated into a sanctuary outside, giving us a place to relax and enjoy the outdoors at home. Many weekend warriors find outdoor projects fun and rewarding challenges for their spring through fall months. However, sometimes an idea may be too grand or a space too oddly shaped for us to visualize how to put it all together. This is where a landscape designer** may be helpful. These professionals are the "exterior decorators" of the outdoors. They can help in a wide range of outdoor projects whether it be redesigning a whole yard or helping incorporate one feature into your greater masterpiece. They also have an extensive knowledge of plants that will help you find the right color and texture for your yard with a plant that will be happy in that area's light and soil conditions. Before hiring a landscape designer, you should first consider what you want to get out of your yard/project. After this you can begin interviewing different landscape designers to find one that will work with your ideas.

**Frequently today the terms landscaper, landscape designer, landscape architect, landscape contractor are used synonymously. For ease we have chosen to use landscape designer as a "Jack/Jill of all trades" in this article. Keep in mind that these professionals may use the different titles. Also, keep in mind that sometimes your project will require a team of landscape professionals as they may be more specialized. For example, you may hire one landscaper who does only pre-design of the project and hires out the labor to another contractor. Contents: Introduction

Part I: Determining Your Yard Project

One of the major hurdles to your landscape design or redesign will be deciding on what you want to change. Many times the change options can be overwhelming. However, if you concentrate on limitations and functionality of your living space, you will be better prepared to meet with a landscape designer. Here is a basic checklist of things to consider before contacting a landscape designer:

• The most important first step you can take is to determine your budget. Be honest with yourself and set your limit in advance. Once you get started with a landscape designer it can be tempting to stretch your budget. Your landscape designer will appreciate knowing in advance what budget to work in, and your wallet will too!
• **To save money, some do-it-yourself warriors may hire a landscape designer for only a plan and do all the physical work themselves. Many landscape designers will do this and include a list of plants and types of building materials for your reference. Knowing your budget in advance may help determine if this is the best option for you.
• Next you will want to consider your time frame. How quickly do you want things done? Do you need things done by a certain time for an event such as a wedding? Or are you interested in a tackling one area at a time and can spread it out over months or even years? The latter may be considered by those who are interested in purchasing plans but may do most of the physical labor themselves.
• Consider what will be the function of the landscaped space. Are you interested in a gathering place for entertaining guests; a play area for kids and pets; a private hideaway; or a garden for growing flowers and/or edibles? You may even be interested in a combination of more than one of these uses. Also, if you don't use your back or front yard much now, it may help to consider how a change to the space will make you use it more. Or if you are not interested in using it more, perhaps how a change to the design will help with self-maintenance.
• After you have considered the function of your new space(s), you will want to consider any of the hardscapes. These are areas such as patios, decks, paths or anything else that may mean putting down cement, wood, pavers, etc. Knowing what you would like to use for some of these areas will help the landscape designer determine cost and possible layouts. There may also be the chance that the landscape designer will need to contract out some of this work and this effect the price and/or the timeline.
• Think about any particular plants you want to either keep or incorporate into your yard. If you have a tree you want to protect or transplant this can effect design and cost. Or if you want more privacy you may want to consider the growth rate, height and coverage of a particular plant or plant type.

Part II: What to Look for in a Landscape Designer

After you have considered your budget, timeline, function, etc., you will be prepared to contact landscape designers and start to collect estimates. Like working with any other contractor, you should get at least three or more estimates and compare the landscapers available. Do research, review contracts and credentials and make certain you get all your questions answered. Many landscape design projects will not come cheap, so doing your homework will be worth your time and money. Here are a few things to look for when hiring a landscape designer:

• You may want to start in locating a landscape designer by asking friends, family and neighbors who may have first hand knowledge of their work. You may also search the phone book or an online database. More and more you may find examples of their work posted on online websites which may help in your initial selection process as well. Finally, check with local nurseries in your area as they will more than likely know quite a few landscape designers (and they might be able to give some "reference" input as to their reputation as well)!
• When you contact the landscape designer, ask them to come out to your home and view your yard first hand. This way they can get a good idea of the layout of your land and give a more accurate estimate. It is also helpful if you have a list of criteria, gathered during your pre-planning, to give them as a guide to follow.
• It will also be beneficial to look at a couple of the projects they have done in the past. Preferably they will be projects similar to your project's size and style. Many landscape designers will have pictures available, however, if possible try to see a couple sights in person.
• Like with any other contractor, you will want to get a bid before moving forward. Again, having a rough outline of what you want to see accomplished will help the bidding process.
• Ask for references and call them! One of the common errors people make is that they ask for references but then never follow up. Granted, references are rarely dissatisfied customers. But their insight on how the whole project and process worked for them can be invaluable when working out any details for the contract.
• Review licensing and insurance information. If the landscape designer and their crew will be working on your property, you want to make certain they are covered by their insurance. Also make certain they are going to apply for or help you apply for any needed permits. Any contractor that says, "You don't really need that." should be quickly shown the door!
• Once you have decided on a landscape designer, get a written contract for the project. This should detail cost, payment agreement (never pay all in advance!), timeline, materials included, labor included and any warranties. Also, consider any changes to the timeline or cost in advance. How much of a delay is acceptable if the weather turns bad? Is there any leeway on material costs?
• Know the details of any warranty - make sure to determine what is covered under warranty and for how long. What happens if plants die, the fountain breaks, etc.? Who do you contact if your fountain stops working after two years?
• Detail any sub-contracted areas on your project. Who will be sub-contracted, what will they be expected to do and who will be in charge of resolving any questions if the work is not 100% satisfactory.
• Consider the size of plants that will be included in the project. Many nursery plants will not see their potential size until later - sometimes years later. Consider if you want to pay more for a more mature sized plant or change the plant chosen due to its size and growth rate. Go over this carefully in advance with your landscape designer!

So your yard is perfect. You don't need anyone to change a thing or add anything new. But there is that little task of maintenance. Do you have the time to keep your eden in tip top shape? If not, you may want to consider hiring landscape maintenance. Here are some things to look for when hiring for landscape maintenance:

• Before you call, make sure to consider exactly what you want to see done. Is it just weeding, mowing and raking? Or do you also need special maintenance for your pond or pool? Also consider a schedule. What tasks should be done on a weekly, monthly or seasonally basis?
• Ask friends, family and neighbors for references. Check to see if there are already landscapers who come to your neighborhood. Also check with local nurseries. Check the yellow pages or online directories.
• Get estimates! Have the landscaper come out and see your yard. Give them a list of the exact tasks you want to see done. This way they can better see the size and scope of the projects and give you a better estimate.
• Ask for references and call them! Check on to see if they are punctual, neat, thorough and easy to work with. Find out if there is anything you should be more specific on in the contract to avoid any miscommunication.
• Check for business licence and insurance. They will be working on your property, make sure they have their own insurance to cover any accidents.
• Make sure they are aware of and respect local laws. Are they aware of watering restrictions, burn bans, etc.
• If this will be a long term agreement, then make certain to get a written contract. Even for a one weekend job you may want to get a contract to make sure there are no questions about what is expected. As with any contract, the more details the better. Specify cost, payment, timelines, warranties and delays in service.
• Discuss if there is any warranty on their work. If they are taking care of your coy pond and all the fish die, who is responsible?
• Discuss the types of chemicals they may use on your yard. If you have children and pets playing in the yard there may be certain products you do not want used! Discuss the type of equipment they will use. Do they expect to use any of your equipment? Do they have equipment that is safe and properly running?
• Keep in mind that working with a landscape maintenance crew can be a dynamic rather than static relationship. Make sure you continue to get good service and communication is open and easy. If at any time you feel you are not getting your moneys worth or being understood, it is time to end the contract. Don't just accept that this is "just how it is" or "they know better than I do." It is a business deal like any other and you should feel comfortable that you are getting the services you pay for.

Conclusion

It can be fun being the week-end warrior and master of your outdoor domain. However, sometimes the projects you have in mind for your front and/or back yard can be a bit overwhelming. Consider hiring a landscape designer for part or all of the project. You will learn some great design and technique ideas from them and save your back a bit too!

Myth: Assessed value should equate to market value.
Reality: While most states support the concept that assessed value approximate estimated market value, this often is not the case. Examples include when interior remodeling has occurred and the assessor is unaware of the improvements, or when properties in the vicinity have not been reassessed for an extended period.

Myth: The appraised value of a property will vary, depending upon whether the appraisal is conducted for the buyer or the seller.
Reality: The appraiser has no vested interest in the outcome of the appraisal and should render services with independence, objectivity and impartiality - no matter for whom the appraisal is conducted.

Myth: Market value should approximate replacement cost.
Reality: Market value is based on what a willing buyer likely would pay a willing seller for a particular property, with neither being under pressure to buy or sell. Replacement cost is the dollar amount required to reconstruct a property in-kind.

Myth: Appraisers use a formula, such as a specific price per square foot, to figure out the value of a home.
Reality: Appraisers make a detailed analysis of all factors pertaining to the value of a home including its location, condition, size, proximity to facilities and recent sale prices of comparable properties.

Myth: In a robust economy - when the sales prices of homes in a given area are reported to be rising by a particular percentage - the value of individual properties in the area can be expected to appreciate by that same percentage.
Reality: Value appreciation of a specific property must be determined on an individualized basis, factoring in data on comparable properties and other relevant considerations. This is true in good times as well as bad.

Myth: You generally can tell what a property is worth simply by looking at the outside.
Reality: Property value is determined by a number of factors, including location, condition, improvements, amenities, and market trends.

Myth: Because consumers pay for appraisals when applying for loans to purchase or refinance real estate, they own their appraisal.
Reality: The appraisal is, in fact, legally owned by the lender - unless the lender "releases its interest" in the document. However, consumers must be given a copy of the appraisal report, upon written request, under the Equal Credit Opportunity Act.

Myth: Consumers need not be concerned with what is in the appraisal document so long as it satisfies the needs of their lending institution.
Reality: Only if consumers read a copy of their appraisal can they double-check its accuracy and question the result. Also, it makes a valuable record for future reference, containing useful and often-revealing information - including the legal and physical description of the property, square footage measurements, list of comparable properties in the neighborhood, neighborhood description and a narrative of current real-estate activity and/or market trends in the vicinity.

Myth: Appraisers are hired only to estimate real estate property values in property sales involving mortgage-lending transactions.
Reality: Depending upon their qualifications and designations, appraisers can and do provide a variety of services, including advice for estate planning, dispute resolution, zoning and tax assessment review and cost/benefit analysis.

Myth: An Appraisal is the same as a home inspection.
Reality: An Appraisal does not serve the same purpose as an inspection. The Appraiser forms an opinion of value in the Appraisal process and resulting report. A home inspector determines the condition of the home and its major components and reports these findings.

J. Myers & Associates Inc. 5098 28th Avenue South West Naples, FL 34116 Phone: 239-793-3430 Fax: 239-793-3430 E-mail: JasonMyers@embarqmail.com E-mail: JasonMyers@embarqmail.com

Welcome back to Rocky’s Corner!

Last month we started Part 4 of an 8 part series of Preventive Maintenance Tips for your Home. This month we will discus helpful tips for maintenance every 2 years. Every 2 Years

AIR DUCTS:
Consider having the air ducts in your home cleaned if family members suffer excessively from respiratory infections, asthma or allergies; if there is visible mold growth inside ducts or on other components of your heating and cooling system, the ducts are infested with insects or rodents. Excessive amounts of dust and debris and/or particles are actually released into the home from your supply registers.

CARBON MONOXIDE DETECTOR:
Change sensor element.

DECKS AND PORCHES:
If they are professionally cleaned, sealed and maintained, it should only be necessary to refinish and/or stain your wooden decks every two or three years. It is necessary that surfaces be thoroughly cleaned and dried before adding another coat of stain or protective finish. Remove mold and mildew, fungus, tree sap, grease and bird droppings from exterior wood with the appropriate commercial deck cleaner (or homemade mixture) and a stiff brushed broom. Clean mildew and fungus by mixing one cup of chlorine bleach per gallon of water; scrub and rinse well. Sodium bicarbonate works well to remove dirt, mildew and the weathered gray residue from sunlight degradation. Oxalic acid will remove metal stains around nails and dark tannin stains often found on redwood, cedar and oak. Use care and follow manufacturers’ directions when using these products, wear eye protection, long pants, long sleeves and gloves; cover surrounding vegetation with plastic and rinse well.

TILE, NATURAL STONE AND GROUT:
Have your grout, professionally sealed every one to three years in medium to heavy-used areas and every three to five years in lightly used areas.

SEPTIC TANK:
Have the septic tank cleaned and pumped. Join me next month for Part 6 of our series on Preventive Maintenance Tips for your Home. We will be starting with tips for each season st Spring Visit us at www.freminshomeimprovement.com

As of December 2007, bankruptcy filings are up 28% from last year and are expected to increase in 2008 due to the combined factors of high household debt and rising mortgage costs. American Bankruptcy Institute

This is the article that no one hopes to need and we would prefer not to write. The word 'bankruptcy' is weighed down by such doomsday words as failure, defeat, impoverishment...well, you're getting the depressing idea. However, it is not 'the end of the world' to declare bankruptcy. Instead of running away from this topic, it is time to demystify bankruptcy with a little 'Bankruptcy 101.'

What is bankruptcy?

For most people, bankruptcy is a way to get a fresh start after acquiring too much debt. Most individuals who file for bankruptcy will file under Chapter 7 or Chapter 13. Depending on which is filed, one may get most of their debt erased or work out a workable solution with lenders to pay off existing debt.

Are bankruptcy laws determined by Federal or State government?

Bankruptcy laws are made by the Federal government. States can pass laws that protect the "lender and debtor relationship" but they cannot regulate how a bankruptcy is processed or if it is to be granted.

Can all debts be erased?

No. Whichever type of bankruptcy is filed, there are certain debts that cannot be erased at all. These include alimony, child support, most student loans and legal judgments against fraud or criminal negligence such as a drunk driving accident. Some taxes may be erased, but not all. In fact, taxes have their own set of bankruptcy rules.

Do I need a lawyer?

When filing for bankruptcy it is important to find a bankruptcy lawyer who can help you navigate the process. Bankruptcy lawyers specialize in this area of law and are familiar with the distinct differences and effects of the process; they can be your greatest ally in a tough, seemingly bureaucratic system.

How long will bankruptcy effect my credit?

Bankruptcy will stay on your credit report for 10 years. There are ways to improve your credit rating and make yourself more appealing to lenders. For more information on this, check out this useful website: www.lifeafterbankruptcy.com. It is not an easy road back and those filing for bankruptcy should have a realistic expectation to work hard at their future spending practices.

Do I have to do debt counseling?

Yes. Under the new bankruptcy act passed in October 2005, it is now required that all persons applying for bankruptcy meet with a government qualified debt counselor first. After one has successfully filed for bankruptcy, the debtor must again meet with a counselor before the bankruptcy file will be closed.

What is Chapter 7 bankruptcy? (In a nutshell)

Chapter 7 bankruptcy is also known as a "liquidation of debt." A person can file for Chapter 7 every 8 years. This usually involves the liquidation of property to pay back debts. An appointed trustee sells all secured, non-exempt property for the debtor and distributes money raised among the lenders. Unsecured debts, such as credit card bills and most medical bills can be erased. This may mean the loss of secure debts such as a home. However, most states do have protections for debtors in place to insure they may keep life necessities such as clothing and some furniture. Retirement funds such as IRA's are also protected and debtors may keep these as well. After the changes to bankruptcy law in October 2005, many debtors may not get approved for Chapter 7 and be required instead to apply for Chapter 13. In short, if you still have an income and make more than the median for a household of your size in your state you may have to file for Chapter 13. To find out if you should be filing for Chapter 7 or Chapter 13, you can use a mean calculator like the one at legalconsumer.com. Again, this is where consulting a lawyer becomes very important.

What is Chapter 13 bankruptcy? (In a nutshell)

Chapter 13 bankruptcy is also known as a "reorganization of debt" or the "wage earners' plan." One can file for Chapter 13 more often as long as any previous filings are already closed. This is the bankruptcy for those trying to a find a way to get out of debt but still expect to pay off some of their debt. Generally speaking, if you still have a source of income and could make payments, just not the high ones you have now, you can be restructured into a debt payment plan under Chapter 13. This is the most likely to be used to try to stop a mortgage foreclosure. In this scenario, you can keep the house, car and more than you could under Chapter 7. There are limits to the amount of debt that can be restructured. If one is above those limits they would file under Chapter 11, however, the average American Joe/Jane is not in this category.

More Resources
US Department of Justice - US Trustee Program
www.usdoj.gov/ust/
A complete listing of approved credit counseling agencies is available through links on this Web page. [Listed by state.] www.usdoj.gov/ust/eo/bapcpa/ccde/cc_approved.htm
A complete listing of approved providers of financial management instructional courses is available through links on this Web page. [Listed by state.] www.usdoj.gov/ust/eo/bapcpa/ccde/de_approved.htm

American Bankruptcy Institute
www.abiworld.org
The American Bankruptcy Institute is the largest multi-disciplinary, non-partisan organization dedicated to research and education on matters related to insolvency. ABI was founded in 1982 to provide Congress and the public with unbiased analysis of bankruptcy issues.

Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
www.govtrack.us/congress/bill.xpd?bill=s109-256

Bankruptcy Action
www.bankruptcyaction.com
The objective of this website is to provide the person, thinking about filing bankruptcy, the information he or she needs to make an informed decision.

Lawyers Listings
www.lawyerslistings.com/about.shtm
Our mission is to present to the Internet community an easy-to-use site in which to search for law firms and individual lawyers.

Life After Bankruptcy
www.lifeafterbankruptcy.com
On this website you'll discover everything I did to recover so quickly...and many other bankruptcy recovery and credit repair strategies you'll find nowhere else.

NOLO Bankruptcy Library
www.nolo.com
Nolo is your legal companion, empowering you and saving you money whenever the law touches your work, life or finances.

US Courts - Bankruptcy Basics
www.uscourts.gov/bankruptcycourts/bankruptcybasics.html 
Bankruptcy Basics provides basic information to debtors, creditors, court personnel, the media, and the general public on different aspects of the federal bankruptcy laws.

What can you do to prevent Bankruptcy?

1. Continue to take care of essential bills first: mortgage/rent, taxes, child support, and utility bills.
2. Eliminate frivolous expenditures. No more department store credit cards, cable TV, magazine and newspaper subscriptions, etc. Be honest about what you can live without with for a while. 
3. If you own your home, consider a home equity loan to get rid of high rate debts such as credit cards.
4. Watch your credit report. Close unused accounts, check for errors and resolve any questions with lenders immediately.
5. Know the warning signs: -Are you using credit cards to pay off bills or credit cards? -Are you borrowing against unprotected debt? i.e. Are you borrowing from a credit card to pay the mortgage? When you see you are bouncing debt around and not making any headway, it is a good time to look at credit counseling.
6. Warning about credit counseling: If you choose to do debt consolidation recognize that it will effect your credit score. Also, make sure you understand how the payments will work and if you can really make the payment - sometimes they are set too high!
7. Avoid aggressive lenders. If you begin to get offers for loans that sound too good to be true - they are! There has been a big push to penalize aggressive lenders who only help people acquire more debt. However, they are still out there and you should be a careful shopper of any loans you take.