Personal Law

Kentucky has Significant Protections for Defendants Accused of Defamation

As the prevalence of social media continues to grow in our everyday lives, it is easier than ever to be caught up in an online feud. Sometimes, these keyboard disputes can lead to serious conflicts in the courtroom. If you are accused of defamation, you need to know your rights and have an experienced lawyer on your side.

What is Defamation?

In Kentucky, a person can make a claim of defamation asserting that their public reputation has been tarnished. Specifically, to prevail, a party must prove: “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Deane v. W. Ky. Univ., No. 2021-CA-0083-MR, 2022. Unpub. LEXIS 281 (Ky. Ct. App. 2022) citing Toler v. Süd-Chemie, Inc., 458 S.W.3d at 282 (Ky. 2015).

If a plaintiff can establish a claim of defamation, a defendant may pay significant financial damages.

How is Kentucky Protecting Speech?

Recognizing the need to provide defendants accused of defamation with additional protections, Kentucky’s General Assembly passed the Uniform Public Expression Protection Act (“UPEPA”) during the 2022 legislative session.

The UPEPA’s provisions apply to a cause of action asserted against a person based on the person’s:

“(a) Communication in a legislative, executive, judicial, administrative, or other governmental proceeding;

(b) Communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or

(c) Exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, as guaranteed by the United States Constitution or Kentucky Constitution, on a matter of public concern.”.

Most claims in which the UPEPA would provide protections against would fall under the third category of speech involving matters “of public concern”. The act defines a “matter of public concern” as “a statement or activity regarding: (a) A public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity; (b) A matter of political, social, or other interest to the community; or (c) A subject of concern to the public;”.

If a defendant can demonstrate that the UPEPA applies to their speech, they will be afforded various protections such as a stay of discovery proceedings, expedited review, and a heightened standard of review.

The Best Defamation Lawyers Near You

Finding yourself or your business subjected to a defamation action can be a time-consuming and complex situation. The law related to speech is evolving every day in both legislatures and courts. Attorney Sebastian Torres has experience defending clients against defamation actions in Kentucky. If you are interested in discussing your matter with Sebastian, call Gatlin Voelker at (859) 781-9100.

Filing for bankruptcy is a very difficult and emotional decision. With layoffs and unemployment skyrocketing in the past year thanks to the COVID-19 pandemic, growing numbers of individuals and families are facing the bleak reality of personal financial difficulties. Filing bankruptcy is different for each person, and we can help you determine what option is best for you and your unique situation. Here are some of the most common concerns and questions we hear about Kentucky bankruptcy rules so you can put your mind at ease before consulting with a lawyer.

Should I File Chapter 7 or Chapter 13 Bankruptcy in Kentucky?

Whether you file Chapter 7 or Chapter 13 bankruptcy depends on your personal situation.

Chapter 7 Bankruptcy

The most common type of bankruptcy, Chapter 7, is available to individuals, married couples, corporations and partnerships. It seeks to discharge unsecured debts, which means that creditors can no longer take action to collect those debts and you will not have to repay them. Chapter 7 is a liquidation proceeding, meaning any nonexempt assets are sold or liquidated by the trustee and distributed to creditors according to the federal Bankruptcy Code.

Chapter 13 Bankruptcy

Chapter 13 bankruptcy is a repayment plan available only to individuals. It is often used by people with higher incomes or more assets such as a home. There are income and debt restrictions on filing for Chapter 13 bankruptcy, and our personal bankruptcy lawyers can help navigate the Kentucky bankruptcy rules to decide if this is the right option for you. Thinking about filing bankruptcy? Call us at (859) 781-9100 for a free consultation. We are here to help you on this difficult journey.

Under Kentucky Bankruptcy Rules, Will My Creditors Stop Harassing Me When I File?

Yes, they will! By law, all actions against a debtor must cease once the bankruptcy documents are filed. Creditors cannot initiate or continue any lawsuits, wage garnishees, or even telephone calls demanding payments. Secured creditors, such as banks holding a lien on a car, will get the stay lifted if you cannot make payments.

If I File Bankruptcy Will My Friends and Family Find Out?

This is a common question, because obviously a decision to file bankruptcy is difficult. Under Kentucky bankruptcy rules, bankruptcy filings are public documents, but in order to access them a person must have a pacer account, which would be uncommon for anyone who is not a lawyer. Many people are familiar with the Community Newspapers running police reports, criminal and civil court cases. This is not the case in bankruptcy. If you are in Boone, Kenton, Campbell, Grant, Pendleton, Bracken or Gallatin County and want to learn how bankruptcy may help you, give us a call at (859) 781-9100 for a free consultation.

When Will I Be Discharged from Bankruptcy?

One of the major purposes of bankruptcy legislation is to afford the opportunity to a person hopelessly burdened with debt to erase his or her debt and thereby get a fresh financial start. According to Kentucky bankruptcy rules, a bankrupt’s debt is erased when he or she is discharged. The debtor is discharged 3 to 5 months after bankruptcy is filed. At that time all debts (with some exceptions) are written off. Exceptions include:

• Taxes
• Fraudulently obtained debts
• Alimony, maintenance and child support
• Debts for willful or malicious injury to another person or property
• Government educational loans
• Debts from death or personal injury caused by drunk driving
• Debts incurred post-bankruptcy

Do Kentucky Bankruptcy Rules Allow Me to Lower My House Payment?

Sometimes. In the event you have a second mortgage that exceeds the fair market value of your home, you may be able to strip off the lien in a Chapter 13. For example, if you have a $100,000 home, with a $100,000 first mortgage and $50,000 second mortgage, the second mortgage may be able to be stripped off.

Can I Receive a Home Loan Modification While Filing Bankruptcy?

Unfortunately, most lenders are not properly administering Federal and/or State programs for which they were given money by the government during the bank bailout. In other words, banks are providing their customers inaccurate information. This is a scenario that our firm witnesses time and time again when we help people file for bankruptcy:

• The bank tells the homeowner they must be on late payments to receive a loan modification.
• The homeowner feels obligated to miss payments to begin the process of seeking modification.
• The homeowner then faces an unending string of obstacles: the bank claims not enough information was sent in, the information needs updated, and so on.
• The customer then falls so far behind in payments that their home is in foreclosure. They receive letters advising the modification cannot be given and/or there is simply not enough time to process.
• In the meantime the person’s home is ready to be sold at the courthouse steps.

How can this situation be avoided? Unfortunately, the only way to ensure you will not lose your home in this manner is to file a Chapter 13 bankruptcy, but you will have to pay all back payments on your home during the Chapter 13 plan period. It is paid back interest-free.Waiting too long, while being told their loan is in review, often leaves the homeowner with such a large hole they cannot make the Chapter 13 payments while maintaining their current loan payments. There is nothing that prohibits a person from continuing to seek a loan modification while in bankruptcy. Your personal bankruptcy lawyer will advise the court and seek approval if you are granted a modification. The important thing is to not get too far behind to where financially the problem cannot be fixed.

 

What happens if you can no longer make decisions? Who is in charge of making major health decisions, financial if you are no longer capable?

The most important document that I will draft for folks is the power of attorney. This allows an individual of your own choosing to pay your bills, take care of your accounts, buy or sell property in your name if they feel it is important. I have stories wherein certain situations where this was incredibly important. For example, if someone is in the hospital in another state, or foreign country and they need to pay their rent or mortgage here, then this would allow an individual to do this on behalf of that person. I also draft a medical power of attorney that allows a person to make all medical decisions on behalf of someone who is not capable of doing it for themselves. For example, if someone is in a coma.  In my opinion, the power of attorney and medical power of attorney are essential to any estate plan. 

What do I do with my will after it is executed?

I always tell people that they should keep the will in a safety deposit box or some other place which is safe. Always let those close to you, particularly your executor where the will is so that when the time comes it will be easy to find. Other estate planning documents, such as the power of attorney should also be kept in a safe place that is also known to the executor and whoever is appointed as power of attorney. 

How long does it take to get my power of attorney?

You will make an appointment to come to see so that we can determine exactly what type of estate planning that you need. For example, you may want advice on Medicaid/Medicare planning. Or it may be that you feel like trust is a good option for your needs. After we talk I will give you my thoughts on how I think you should proceed. With very few exceptions, the simple estate plan can be created within about 7-10 days. This would be will, living will, power of attorney and medical power of attorney.  In ending, I would just like to say that the benefits of an estate plan are that it takes so much of the burden off of your heirs. You are making decisions now  so that they don’t have to do it later.

Estate planning and writing a will aren’t necessarily topics that many people want to think about. Whether you already have a will or aren’t sure how to get started, find out what estate planning is and why it matters for you and your loved ones. 

What Is Estate Planning & Why Does It Matter?

Estate planning is defined as the instructions for estate asset disbursement to heirs at the owner or author’s death. This includes drawing up a will, setting up trusts, and gifting property. It is such an important topic because no matter how small your estate may be, planning ensures that your property and assets will go to the people you choose and care about the most after death.

While there are many occasions to start estate planning, such as marriage, divorce, childbirth, adoption, or retirement, it’s best to deal with estate planning sooner than later. There are several reasons why.

Estate Planning for Your Peace of Mind

When someone dies without a will, they are said to have died intestate. While each state has specific intestacy laws to help determine where one’s assets go, as a general rule, intestacy laws favor your spouse and your children by giving them your entire estate after passing. If you do not have a spouse or children, then the intestacy law works to distribute your estate to other close relatives. 

It is not only important for you to have your estate planning documents in place; it also helps your loved ones properly take control of your assets upon death.

The best way to ensure your final wishes are carried out is to have a legal will. Even if you aren’t completely sure what you want to do with your property and assets, it’s better to work something out now with an attorney so the state doesn’t have to work it out for you.  Ready to get started on your will or estate plan? Contact April Gatlin to set up an appointment.  

Estate Planning for Your Family’s Sake

There are many ways that probate law can cause or deepen a divide between family members. One example of this is when there are two feuding family members who argue over the decedent’s intentions or state of mind at the time of writing the will. 

Sometimes it’s because one family member may have been the main caretaker of the decedent, and the decedent had a will where they left that caretaker more than other family members. The other family members feel like they didn’t get their “fair share” or they feel “left out.” This often leads to a challenge that the decedent was not of sound mind when they made the will, or that they were coaxed into it by the caretaker.   

Other common issues include:

• Multiple wills
• Holographic (or handwritten) wills
• Last-minute wills and soundness of mind in making a will or changes to a pre-existing will
• Unclear or inconsistent instructions from decedent
• When the decedent is a part of a family-owned or small business
• Grieving relatives
• Who actually owns the assets and real estate
• Debts left by the decedent
• Taxes
• Step-children and adopted children
• Ex-husbands and ex-wives
• Boyfriends or girlfriends of the decedent

Creating a will and estate plan early on can help prevent or decelerate these kinds of issues, should they arise. 

Estate Planning for Your Children

If you have children who are minors, it’s important to address what will occur if both parents die. A guardian and an alternate guardian for your children must be named. You may want to set up a trust provision to help provide money to the children over time, in which case you need to name a trustee. That should be someone you trust and who is good with money so that they can manage the trust.  

Your attorney can help you appoint guardians and trustees so you won’t have to worry about what would happen to your children in the event of the unimaginable.

Start Your Will Today

Everyone needs a will. At Gatlin Voelker, our probate and estate planning attorneys can help you write, review, or edit your existing will and estate plan, and can help you ensure that the people you have chosen for the roles of executor, guardian, trustee, and more are still able and willing to accept those roles. Contact us today to make your appointment.  

Understand Your 4th Amendment Rights

The Fourth Amendment to the U.S. Constitution protects a citizen’s right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Traditionally, the Fourth Amendment has been interpreted to say that individuals lack any protected Fourth Amendment interests in records that are possessed, owned and controlled only by a third party or by what a person knowingly exposes to the public. However, the extension of the Fourth Amendment to our cell phones or information we store online has the potential to be violated, abused and searched differently than traditional types of Fourth Amendment searches.

Cell phones have become an essential part of our daily lives.

They are often the first thing interact with in the morning, and the last thing we check at night. They go with us everywhere and keep some of our most valued pictures, messages, and data. You can arguably learn more about a person looking through their phone than with talking to them. That is why this area of searching for cell phones is so important. If the power of the government to search phones went unchecked, they could learn almost any desired detail about an individual. The rise of the cell phone has also made it increasingly harder to control what a person “knowingly exposes” to a third party and even harder to know if these Fourth Amendment protections against searches and seizures extend to our cell phones. For example, does a person lack a Fourth Amendment privacy interest in the location data that their cell phone gives out? Can it be said an individual knowingly and purposefully exposes this information to a third party? Luckily, the Supreme Court recently decided these questions in the case of Carpenter v. the United States, 138 S. Ct. 2206 (2018) and Riley v. California, 573 U.S. 373, 134 S. Ct. 2473 (2014).

4th Amendment Rights Violation in Riley v. California

In Riley v. California, Riley was stopped by the police for driving with expired tags. During this traffic, stop officers found his cell phone and searched it finding videos and photos that linked him to a previous crime. The Supreme Court ruled that the government needs a warrant, based on probable cause, to search a cell phone. Id at 401. The Court stated that cell phones are filled with massive amounts of personal and private data that distinguish them from traditional items that can be seized during a traffic encounter, like a wallet. Id at 393. Therefore, in order for the government to search one’s cell phone, it is a fairly simple rule, the government needs to get a warrant issued on probable cause to search that phone, even when the phone is acquired due to a lawful arrest. It is important to note that the Court stopped short of saying this is always required. The Court concluded their opinion stating that some warrantless searches of phones could be permitted if certain exigent circumstances give rise to that warrantless search. Id at 407. However, for the law-abiding American citizen, you can be assured that your phone does receive some Fourth Amendment protections and the government will need a search warrant to search your device. Carpenter v. the United States is another recently decided case that defines what Fourth Amendment rights are given to the data that is transmitted from your cell phone. Before this case, most of the data that you expose to the public was not protected, like bank records or your trash cans when you put them out on the curb. However, in Carpenter, the court again recognizes how cell phones have become an essential part of our daily lives. In Carpenter, the police arrested four men in connection with a series of armed robberies. The government was able to obtain the location records for each of the phone numbers of the men connected with the robberies. With this data, the government was able to see the approximate location where these suspects had been and were able to link them with the robberies. In a 5-4 decision just last year, the Supreme Court held that obtaining this cell site location data violated one’s legitimate expectation of privacy in the record of his physical movements that were tied to the cell phones location data. Carpenter, 138 S. Ct. 2206 at 2217. The Court found that the acquisition of these cell phone location records was a search and concluding that the

Warrants Typically Obtained When Supported by Probable Cause

The government must generally obtain a warrant supported by probable cause before acquiring such records. Id at 2221. This decision shows a dramatic shift in the way the Court views technology under the Fourth Amendment. In past cases involving technology, the Court focused on what one knowingly and voluntarily shared with the outside world. The Carpenter Court takes a different approach and recognizes the unique challenges presented with our current dependence on technology. The Court states that having a mobile phone is almost a part of the human anatomy and that is indispensable to participation in the modern world. Id at 2218. With this realization, the Court states that a phones location data is not truly “shared” as one would normally understand the term to mean. Id at 2271. This data is not something we voluntarily give to our service providers, and we can’t control when our phones send the data. Recognizing the changing role technology has caused in our society, the Court now recognizes that the government’s warrantless acquisition of cell site location data is a violation of one’s Fourth Amendment rights. An American now has an expectation of privacy in their cell site location data. With these new decisions now standing as the law of the land, how can the government get cell site location data or search your phone? With the cell phone and data, it sends to cell towers now being classified as a search under the Fourth Amendment, the government will now need a warrant based upon probable cause in order to search a phone or get location-based data from them. It is important to note, however, that the Court did not decide if there is a limited period for which the government may obtain someone’s cell-site location data, or how long that period maybe, they simply held that the seven days the government wanted in Carpenter was a search and subject to the Fourth Amendment’s reasonable expectation of privacy. Id at 2222. This leaves the door open to potentially obtaining cell site location data for specific dates or times in conjunction with the requirements of the Stored Communications Act, however anything very broad or spanning multiple dates, times or areas will need a search warrant based on probable cause to get access to one’s cell-site location information. The Fourth Amendment is a right that can often be abused. That is why, at Gatlin Voelker, we handle our clients with respect, we listen to their concerns, and we advise them of their rights and best options. We know that illegal searches and seizures can have serious consequences. As a small, focused, local law firm, we strive to make you feel comfortable and confident with our team. Call us at 859-781-9100.