Estate Planning; You Decide Who Gets What

Most of us have heard the saying "nothing is certain but death and taxes." When it comes to estate planning these two things, death and taxes, should be at the forefront of everyone's mind. That being said, there are numerous ways to plan for the inevitablity of death. Most estate plans include creating a Will, setting up Trusts and obtaining life insurance policies.

If you do not plan your estate now a state legislature will divide it up when you die. The one size fits all approach taken by your state legislature will most likely not divide your property the way you would divide it. The legislature is not going to know that you want your musical genius nephew Jimmy to have your complete Elvis collection and not your tone deaf son Roy. More importantly, the legislature is not going to know who you want to have custody of your children or who you want to administer your estate.

Create A Will
EVERYONE SHOULD HAVE A WILL! A will is a legal document that specifies who will manage your estate and who is to receive what at your death. A will must be in writing and must meet certain specific requirements to be valid. In most states, the person making the will must sign the will at the end and the signature must be witnessed by at least two other individuals. Most states prefer that the witnessess be uninterested parties to the will. The witnessess must also sign the will in the presence of each other and the person making the will. The will must also clearly identify the property to be bequeathed, the individuals to whom the property is bequeathed (the "beneficiaries") and that the person making the will intended to leave the property to the beneficiaries at his or her death.

To obtain the specific requirements for a valid will in your state contact an estate planning attorney in your state. There are also computer programs that allow you to create your own will. The problem with these programs is they may not meet the requirements of your state.

Consider Setting Up A Trust
If your estate is large enough you may consider setting up a trust to avoid estate taxes upon your death. A trust is a property interest (money, home, car, etc.) held by one person (the trustee) at the request of another (you, the person setting up the trust) for the benefit of a third-party (the beneficiary). Most trusts allow you to name yourself as the trustee if you wish. There are several different types of trusts that can be set up including active trusts, blended trusts, blind trusts, revocable trusts, irrevocable trusts, etc. To set up a trust contact an attorney in your state who specializes in estate planning. Do not set up the trust yourself. You will most likely not meet all of the legal requisites and the trust will be declared invalid.

You may also set up a trust funded with the proceeds of a life insurance policy. Although there may not be any actual funds in the trust at the time it is set up the life insurance proceeds will activate the trust upon your death.

Other Estate Planning Articles
Estate Planning and the Enhanced Life Estate Deed, The Difference Between the Enhanced Life Estate Deed, Warranty Deed and Quit claim Deed, The Traditional Life Estate Deed, The Revocable Transfer on Death Deed and California's Revocable Deed .


You Should Copyright Your Work

Protect your work. Most people have a difficult time distinguishing between a trademark, patent and a copyright. This particular post deals with copyrights. Copyrights are designed to protect "original works of authorship." Copyrightable works are viewed in broad categories and include literary works, musical works, dramatic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings and architectural works. Computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

Copyright Secured Automatically Upon Creation
Copyright protection is secured automatically once the work is created. No publication or registration or other action in the Copyright Office is required to secure a copyright. There are, however, certain definite advantages to registrating your copyright with U.S. Copyright Office.

Register Your Copyright
The best way to avoid unnecessary lawsuits to protect your copyright is to register it with the U.S. Copyright Office. Registration will establish a public record of the copyright. Also, should you need to file suit to protect your copyright registration will allow you to enforce your copyright under Federal copyright laws which allow you to recover statutory damages and attorney's fees if you prevail in a lawsuit. Registration may be made at any time within the life of the copyright.

To register a work, send in the same envelope or package: 1) a completed application form; 2) a nonrefundable filing fee of $30 for each application; and 3) a nonreturnable deposit of the work being registered to Library of Congress Copyright Office, 101 Independence Avenue, S.E., Washington, D.C. 20559-6000.

The deposit requirements vary in particular situations. The general requirements follow are that 1) if the work was first published in the United States before January 1, 1978, send two complete copies or phonorecords of the work as first published; 2) if the work was first published outside the United States, send one complete copy or phonorecord of the work as first published; 3) if sending multiple works, all applications, deposits, and fees should be sent in the same package; and 4) if possible, applications should be attached to the appropriate deposit. Whenever possible, number each package (e. g., 1 of 3, 2 of 4) to avoid confusion in processing.

For more information, contact the U.S. Copyright Office at



Divorce: Things To Consider

What is Alimony?
I once heard an acquaintance say that the happiest day of his life was the day he got married and the second happiest was the day he got divorced. From that statement I think it is safe to assume that his ex-wife would probably put the two in reverse order. Although my wife and I have been happily married for eleven years I am not so blind as to think all marriages work out. Sometimes there is just no reconciling marital differences. If you have decided to get divorced consider the following:

Consider Mediation First
As a general rule, the more the parties can work out themselves the happier each will be with the end result. Consider mediation. Mediation is an opportunity for each party to appear before a neutral third party to discuss issues such as alimony, child support, child custody, asset division, etc. Divorce mediators are skilled in drafting divorce agreements addressing each of these issues. If the parties are able to reach an agreement at mediation the agreement may be submitted to a family law judge for approval. In many cases, a hearing may not even be necessary for a judge to grant a divorce pursuant to a mediated divorce agreement.

All statements made during mediation are confidential and cannot be submitted before the court. Also, if the parties are unable to reach an agreement at mediation they do not have to sign the agreement. Some words of caution: If your spouse appears at the mediation with an attorney and you do not have an attorney, terminate the mediation until you counsel with a divorce attorney. I know numerous individuals who tried to avoid paying attorney's fees by negotiating with the other party's attorney. I have never seen a case where the unrepresented party came out ahead (or break even for that matter).

Custody and Visitation of Children
If the parties cannot agree on legal custody of the children, a court will determine who gets custody. The primary consideration in determining custody is what is in "the best interest of the children." Many states have different criteria for determining such interest. Consult a local divorce attorney in your area to find out what factors your state considers.

The spouse who is granted "legal custody" has the right to make decisions about a child's upbringing including the children's schooling, religion, medical care, etc. The parent who is granted "physical custody" has the right to have the child live with that parent. Often "legal" and "physical" custody are shared; but more often than not shared custody is the result of a mediated divorce agreement. The noncustodial parent is usually allowed reasonable visitation rights. The parents are usually left to work out their own schedule of time and place for visitation which allows the parents flexibility in determining the schedule.

Child Support
Most states have legislated guidelines for determining child support based on the income and expenses of each parent. In determining child support, most states require the court to look at the needs of the child (i.e. health insurance, education, day care, and special needs), the income and needs of the custodial parent, the paying parent's ability to pay, and the child's standard of living before divorce or separation. Most states require each parent to fill out a financial statement before a court can make a decision.

Alimony (a/k/a spousal support) means payment by one spouse to another following a divorce. Alimony is usually granted when the marriage was of a long duration and one spouse earns considerably more than the other. Alimony is also usually granted when one spouse has left the workforce to raise the children or manage the household. Make sure you keep adequate records if you are paying or receiving alimony.


What Is Mesothelioma?

My two elementary school kids have recently finished up school for the summer. Two weeks before school was out I spoke to one of their teachers who told me the entire school is to be remodeled during the summer. She said that along with constructing additional classrooms, the school was finally taking care of the asbestos problem. "Asbestos problem?" I asked. She said the ceiling had begun to fall in in some of the rooms and the school was concerned about the health of the students.

I was shocked to find out that there are still buildings in the United States that have asbestos in them (having heard all the publicity during the late 80's through the decade of the 90's about asbestos related diseases and death). Hasn't the school board heard of mesothelioma?

My wife, a travel nurse who also runs an online business selling nursing scrubs, was even more shocked than I was as she has seen the devastating effects of Mesothelioma first hand.

Asbestos And Mesothelioma
Mesothelioma is a disease primarily caused by exposure to asbestos. Asbestos contains tiny fibers that can be breathed into the lungs. Once the fibers are inhaled they travel through small air passages until they reach the mesothelial cells. The fibers then damage the cells which can result in injury to the lungs and even cancer.

Asbestos exposure is mostly, but not exclusively, occupational and about 6% of those who have worked with asbestos die from mesothelioma.

What Are The Symptoms
There are two general types of mesothelioma: pleural and peritoneal. More than half of patients with pleural mesothelioma experience pain in the lower back or at the side of the chest. Shortness of breath, weight loss, trouble swallowing, fatigue, coughing, fever and sweating can also be signs of mesothelioma. Other symptoms include hoarseness, coughing up blood, swelling of the face and arms, muscle weakness, and sensory loss.

Symptoms of peritoneal mesothelioma include abdominal pain, nausea, vomiting and weight loss.

What Can Be Done?
There are several conventional treatments for mesothelioma including surgery, radiation and chemotherapy. Remember, opting for one treatment may prevent you from undergoing the other treatments.

Contact An Attorney
You may be wondering why a discussion about mesothelioma is on a legal blog. As I previously mentioned, during the 80's and 90's the world became aware of the danger posed by asbestos. As the world became aware, lawsuits arose and legislation was passed dealing with compensating the victims of mesothelioma. You may also want to read Mesothelioma.


Is Bankruptcy Right For You?

I have friends who have spent most of their working lives treading water when it comes to finances. Everytime their income increases (raise, new job, etc.) they add another debt. Everytime their income decreases they begin racking up credit card debt to make their monthly payments. The latter is so common there is even a term for it; it's called "subsistence living."

Most people who tread this financial water are able to dig themselves out if given enough time. But what happens when the income takes too big a hit or debt grows too high (unforseen medical expenses, etc.). That is when you might consider taking advantage of the Bankruptcy Code. Bankruptcy is a process under federal law designed to provide financial relief to the debtor by resolving and settling debts, and provide protection to creditors. There are special courts set up for administering the bankruptcy laws under the Bankruptcy Code. Bankruptcy is not designed to give creditors everything they would have been entitled to had bankruptcy not been filed. Instead, bankruptcy is intended to provide the debtor with a fresh start in his or her financial affairs while allowing creditors to recover at least a portion of what is owed.

The Rules Under Liquidation
The Bankruptcy Code allows anyone who is a resident, domiciled, conducting business, or owns property in the United States to file bankruptcy. This applies to those who are U.S. citizens or have a greencard. Recent legislation has severely restricted the ease with which a debtor may file bankruptcy so you may want to consult a bankruptcy lawyer before filing. The debtor does not have to show that he or she is insolvent (i.e. can't pay the bills) to qualify for bankruptcy, but if the debtor has had a case dismissed for lack of cooperation the debtor is prohibited from filing again for a period of 180 days. This provision is designed to prevent debtor's from stringing out creditors by having a case dismissed multiple times.

Automatic Stay
Once the debtor files for bankruptcy protection an "Automatic Stay" goes into effect. This means that all collection actions taken by a creditor must immediately cease. The Automatic Stay applies to all creditors whether they know about the bankruptcy or not.

One common scenario is when a home is foreclosed on and set for auction. I have been at the courthouse steps on more than one occasion to bid on a foreclosed home when the court clerk received a telephone call from the bankruptcy court instructing that the auction be cancelled due to bankruptcy filing. Many debtors, in fact, wait until the day and hour of the foreclosure auction before filing bankruptcy realizing the filing will prevent sale of the home. Even at this late hour the Automatic Stay goes into effect.

Order of Adequate Protection
This does not mean that the debtor does not have to pay for the home. To the contrary, the bankruptcy court will draft an order of adequate protection to protect the creditor. If the debtor wants to keep the home, the order will direct that the debtor bring all arrearages current and continue monthly payments during the course of the bankruptcy proceedings. If the debtor fails to make the payments as provided in the order the credior can apply for a default and have the Automatic Stay lifted to pursue the foreclosure action.

If you are planning on filing bankrupcty, you may first want to contact an estate planning attorney. Ask him about the Enhanced Life Estate Deed a/k/a the Lady Bird Deed.

Financial Documents
If you file for bankruptcy protection you will be required to provide financial and legal forms showing your assets and liabilites. Do not try to hide assets. If you are found to have obtained a bankruptcy discharge while hiding assets, the court will reopen the case and severly penalize you for your fraudulent misrepresentations.

Why Incorporate In Nevada?

The first two rules of incorporation are "What state has the friendliest tax laws and what state provides the most corporate protection." For decades, the answer to these questions has been Delaware. In fact, overwhelmingly Delaware has been the state of choice for businesses desiring to incorporate. Delaware was considered to have the most friendly statutory law and the most sophisticated judicial system for adjudicating the law. Delaware's laws are flexible, corporate friendly and designed to allow businesses to easily incorporate in Delaware and maintain their principal places of business in other states. But recently a new state has begun to take top billing for incorporation: Nevada.

Franchise And State Income Taxes
Delaware has a franchise tax; Nevada doesn't. In Delaware, a corporation with 25,000 shares would have an annual franchise tax of $190. In lieu of using the total corporation shares, Delaware does allow a corporation to determine its franchise tax by reporting the number of issued shares and total gross assets as reported on U.S. Form 1120, Schedule L (Federal Return). This requirement infringes on privacy as businesses are forced to make an additional financial disclosure to the State of Delaware. Delaware also requires a fee for filing the annual report.

Conversely, in Nevada the annual cost to maintain an active corporation with 25,000 shares in Nevada is $85. This is the fee for filing your annual list of officers and designation of registered agent. There is no franchise tax and, therefore, no additional disclosure requirement.

Delaware, unlike Nevada, also has a state income tax. The income tax applies to businesses that do business in Delaware and is currently at 8.7%. The income tax also affects businesses that do not operate in Delaware because it significantly reduces the possibility of reducing or eliminating a business' home state corporate income tax (because the strategy used to do this involves doing business in the preferred state -- in this case, Delaware). In addition, in the same manner as the franchise tax the income tax infringes on privacy.

Financial Privacy
Nevada is the only state which does not share information with the Internal Revenue Service. By statute, Nevada is required to keep its corporate information completely private. Nevada corporations do not have to divulge information such as the date appointed for the next annual meeting of the stockholders or directors, list places of operation outside Nevada notify the state of stock issues or transfers, names of stockholders, etc.

Registered Agent
If a business does decide to incorporate in Nevada, the business will be required to maintain a registered agent in the state. This is true with every state. Most businesses choose to contact a corporate law firm to prepare the legal forms for incorporation documents and act as registered agent. Most corporate law firms will act as registered agent for a relatively small annual fee. If a business has someone to act as registered agent in the state, it may want to prepare the corporate filings itself.

Incorporating In Nevada
Nevada has made filing corporation documents very user friendly. Go to; click on business entity legal forms; fill them out and send them to the address provided.


When To Hire A Social Security Disability Attorney

Did you know that if you have a disability, condition or disease that hampers or prevents you from working, you may be eligible for Social Security Disability (SSD) benefits? SSD is a government program that provides cash benefits on a monthly basis for individuals the government deems "totally disabled." To be eligible, the government usually requires that you suffer from either: 1) a condition that has or will prevent you from being employed for at least twelve months, or 2) a condition that will result in your death.

Social Security Disability Factors
The Social Security Act provides disability benefits to individuals who cannot perform any type of work for at least twelve consecutive months. To be eligible for benefits, the Social Security Administration looks at: 1) whether you are working; 2)whether you have a severe medical impairment that meets the required time frame; 3)whether your impairment or illness is on the approved list; 4) whether you are able to perform the type of work you have done in the past, and 5) whether you can perform lighter work should it be available to you.

The Social Security Administration will also consider factors such as the claimant's age, education, work experience, compliance with medical treatment, daily activities and the kind and extent of treatment.

Hire A Social Security Disability Lawyer
A social security disability lawyer can compile the relevant information you will need to show the SSA you deserve SSD. The process of obtaining SSD benefits can be long and tedious as it requires numerous legal forms to be filled out, personal interviews with someone representing the government and potential appearances before an administrative law judge. There are several levels of benefits you may be eligible to receive and you do not have to be eligible for every level to receive at least some SSD benefit. Most people who apply for social security benefits are turned down a minimum of two times. Without legal help, it can take years to get benefits. A social security disability lawyer can speed up the process.


When You Need A Personal Injury Lawyer

You may recall the scene in "Rainmaker" where Danny DeVito shows Matt Damon how to troll the hospital for clients. They walk into one of the hospital rooms where an unsuspecting car accident victim trapped in a full body cast is lying in traction. The nurse leaves the room and DeVito asks the guy if he has an attorney and then slips a business card between the guy's fingers. In most states, it is illegal for a personal injury lawyer to solicit clients like this.

Advertisement Ban
Many states have strong penalties for personal injury lawyers who solicit clients like DeVito's character did, including disbarment. In fact, some states have banned personal injury lawyers from altogether advertising on television, billboards and other traditional advertising venues. The reason for the ban is simple. States do not want to encourage frivilous litigation.

But what about our car accident victim above? Suppose his insurance company shows up at the hospital before he has an attorney. In most states, this would not be illegal. Suppose they stick an ink pen between his fingers instead of a business card. Suppose they show him a legal form known as a settlement agreement and offer him $50,000 to sign the agreement. Suppose he signs the agreement without consulting a personal injury lawyer first (insurance companies know the mental fatigue and impairment of a person stuck in a full body cast while lying in traction). Suppose the victim was not the cause of his injuries and that it will cost him $500,000 in medical expenses to recover and, even then, he will never be completely whole. Suppose the only way the victim could meet an attorney is the one taken by DeVito's character.

A Word Of Advice
Do not sign anything until you have consulted a personal injury lawyer. Most attorneys will give you a free initial consultation. Your insurance company may try to disuade you from talking to an attorney but this is just a tactic to limit the amount of their exposure. Do not fall for it.

What Is A Personal Injury
The victim above would fall under the category of personal injury law; that is, a legal claim based on an injury you may have received that was caused by another person's negligence. A personal injury may also include an invasion of personal rights, including mental suffering and false imprisonment.


What is an Easement?

An Easement gives one person the right to go onto another person's property. There are essentially two different type of easements: Easement in Gross and an Appurtenant Easement.

Easement in Gross
Easements in gross are personal rights given to individuals or specific groups. When the owner of the easement dies the easement automatically terminates.

Appurtenant Easement
Appurtenant easements are more permanent and are given to both the property and its owner. If the property and easement owner sells the property the appurtenant easement is transferred to the new owner with the same legal rights to the easement as the original easement owner. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities.

Exclusive Easement
An exclusive easement identifies specific parties who may have access to the easement.

Non-Exclusive Easement
A non-exclusive easement does not specify any specific parties.

Access and Egress
Easements of Access and Egress may be obtained for access to a piece of property. These easements may include access to water sources, to make repairs on a fence, to herd animals across and other for other reasons. The easement is a real property interest, but separate from the legal title of the owner of the underlying land.

Driveway Easement
A driveway easement allows the person who is the beneficiary of the easement to cross the "servient" property. The land which receives the benefit of the easement is called the "dominant" property or estate. A driveway easement may be created by recording a deed that states that one neighbor owns the driveway to the halfway point, but has an easement or right of way to use the remainder; however, the adjoining home owns the other half of the driveway, with a right-of-way with respect to the portion the neighbor owns.

Easement by Prescription
An easement may be claimed by prescription for the use of the driveway. This requires proof that your neighbor willingly abandoned his use of the driveway during the adverse period when you and your predecessor in title enjoyed the exclusive use of the driveway.

Easements should describe the extent of the use, as well as the easement location and boundaries.

Easements can be created (1) by deed, (2) by prescription (i.e. hostile, notorious, open, exclusive and continuous use) for a statutory number of years, or (3) out of necessity, (e.g. giving access to a "land-locked" piece of property).


Real Estate Law; Don't Let Them Steal Your Property

Do the words hostile, notorious, open, exclusive and continuous mean anything to you? They do if you have ever had your property taken by a trespasser who squatted on your property long enough to acquire title to it. The term is called "adverse possession" and it is one of the oldest forms of legal theft in the United States. One common scenario goes like this:

Adverse Possession Scenario
You and your neighbor own separate 10 acre parcels that share a common border. One day your neighbor puts up a fence to divide his property from yours. Without measuring the property line, your neighbor installs the fence just barely on your side of the line. Not wanting to be a bad neighbor, you don't say anything to him about the fence being on your property. Years later your neighbor parks his boat on your side of the fence so that it can't been seen from his driveway. You don't mind because you aren't using that part of your property anyway and really can't even see the boat from where your house is located. You just wish he would have asked you first. Twenty years go by and your neighbor has made a habit of storing things on your property. He decides to sell his property. He has his property surveyed and finally realizes that he has been storing his things on your property for the past twenty years. Instead of being the good neighbor you have always tried to be, he instead files court papers to obtain your property through adverse possession instead of a deed. The kicker, he wins.

What Is Adverse Possession?
A trespasser is entitled to legal ownership of property if his occupation of the property is hostile, actual, open and notorious, exclusive and continuous for a period of years set by state statute. These terms take on a different meaning under the law than the meanings we normally attribute to them. For example, the word "hostile" does not mean that the trespasser has built a fort on your property and armed himself for battle. Most courts follow one of two legal definitions of hostile. The definition followed by most states is called the "Connecticut Rule" which defines hostile simply as occupation of the land. The trespasser doesn't have to know that the land belongs to someone else. The other rule, called the "Maine Rule," requires that the person merely be aware that he is trespassing.

The length of time before a trespasser may apply for quiet title depends on the state and is usually around twenty years.

Protect Yourself; Try A Real Estate Attorney
If you are concerned that someone may claim an interest in your property there are several things you can do to protect yourself. First, check your property tax records. If someone has paid taxes on your property they may be preparing to take your property through adverse possession.

Second, do not let the person enter onto your property. Block entry ways and call the sheriff if you have to.

Third, if the person is a friendly neighbor give the person written permission to use the property. If your neighbor puts a fence on your property notify him and give him written permission to keep his fence on your property. Keep a copy of the letter granting permission. A simple letter will allow you to avoid losing your property to adverse possession.

If you question whether you can handle any of the above actions, contact a real estate attorney. A real estate attorney can determine whether an adverse possession claim exists and can file any paperwork (i.e. eviction, etc.) necessary to block the claim.

Teens And DUI In Southern California

With prom in the not too distant past and graduation in the immediate future many Southern California teens have found reason to celebrate. During the teenage/high school years most teens are confronted with the decision whether to consume alcohol. So before you decide whether alcohol should be part of your high school celebration consider the following summary of the California "zero tolerance" alcohol law:

Teenage DUI Penalties
In California, any measurable alcohol in a driver younger than 21 years of age will result in an automatic one-year suspension of driving privileges. A blood alcohol content of .05 percent, roughly two drinks, is a criminal offense for an underage driver (the blood alcohol content of .08 percent applies to adults only). More than 2,000 underage drivers are involved in alcohol-related death and injury crashes annually. In addition to up to 48 hours in jail and three years probation, young offenders are required to attend a 15-week DUI course and can be ordered to make restitution for any physical or property damage they cause.

Suggestions From The Auto Club
The Automobile Club of Southern California has made three simple suggestions to prevent teenage alcohol related death, injuries and criminal behavior. First, find out whether your school or town has a "Safe Ride" program. You should do this before the celebration begins. Write down any telephone numbers you might need to call and keep them in your purse or wallet.

Second, don't get into a car with someone who has been drinking. This may be a difficult thing to avoid but it could save your life. Remember, the worst sober driver is safer than the best drunk driver.
Third, call a taxi, take a bus or get a friend to drive you home if you have been drinking. Make this decision before you begin drinking. Most DUI accidents are caused by someone who didn't think he or she had had too many drinks.

Suggestions From A Practicing DUI Lawyer
If you are involved in a DUI accident exercise your Miranda rights and do not say anything to anyone until you speak to your attorney.


Why You Should Consolidate Student Loans

When I was in law school I applied for and was given in excess of $70,000 in various student loans. 

The interest rates on the loans ranged from 7% to 9% with several different repayment options. 

Most of the loans allowed me to defer payments until after I graduated but continued to accrue interest on the outstanding balance.

After graduation the time came to repay the loans. I tried for almost a year to keep track of the different loan payments; their terms, payment dates, etc. 

I knew that if I missed a payment or made a late payment the lender could accelerate the loan, increase the interest rate and sue me if I did not pay the loan off after acceleration. 

I had managed to avoid real life for awhile while living under the bubble that is law school and had little experience dealing with real finances. By the way, bankruptcy does not discharge student loans.

Take Advantage Of The Offer To Consolidate
About a year after I graduated from law school I received an offer in the mail to consolidate my student loans and cut my interest rate in half. 

I was initially sceptical of the offer as it seemed too good to be true. I checked into it a little more and discovered that the Federal Government was in fact offering interest rate reductions for consolidation (I guess it makes it easier for them to keep up with your loan). 

I also discovered that, in most cases, the Federal Government offers interest rate reductions for those who sign up right after graduation or at other eligible grace periods.

Other reductions occur when you have your payment automatically deducted from your checking account and when you timely pay on your loan for more than 6 months. 

In addition to cutting my interest rate in half (7% to 3.5%) I was able to take advantage of the other incentives. My interest rate is currently around 2.25% on a loan that was originally 7% to 9%. 

Remember, interest never sleeps, goes on vacation or takes a day off. 

The best you can do is to pay the loan off in full or lower your rate until you can pay it in full.

Don't Throw The Offer Away
So when you get an offer in the mail to consolidate your loans at a reduced interest rate Don't Throw It Away! 

It is most likely legitimate and will allow you to fix your interest in at a low rate and more easily manage your loan. Something else to keep in mind is that student loans cannot be discharged in bankruptcy. 

That means you and your loan need to get along because you will more than likely be spending a lot of time with each other.


How To Find An Attorney

When most people want to hire an attorney the first thing they do is open up the Yellow Pages and scan through hundreds (if not thousands) of attorney names or ask a friend for a referral. 

That is not a good way to hire an attorney. 

First, any attorney willing to pay for it can have his name and picture blown up as big as he or she would like. There is no official ranking system or gauge to determine which of the numerous attorneys is the most capable for the price they are charging.

Second, when you ask a friend to refer an attorney you are really narrowing the field of potential candidates to individuals your friend may know. 

In most instances, when an attorney refers you to another attorney he is paid a fee for the referral. Money can really influence who gets the referral. Again, there is still no ranking system or gauge.

The best way to find an attorney is to go to Martindale-Hubbell has a system of ranking attorneys and groups attorneys into city and area of practice. 

An AV rating is the highest rating an attorney can receive. It is a big deal in the legal profession to have Martindal-Hubbell rank an attorney as AV. 

The next ranking is BV, then CV and so on. Martindale-Hubbell will also tell you whether an attorney is trial certified. This means the attorney has actually conducted numerous trials and has met certain other important criteria. 

This can be a benefit to you for purposes of settling your case prior to trial because non-trial certified attornies are often reluctant to take a case to trial against an attorney who is certified.


How To Get Out Of Debt

In a country where so much time and energy is spent "defending our freedoms," many people are readily willing to shackle themselves to credit card, car payment and other consumer debt. 

I wish I could say that I was not one of the inmates; but that would not be true.

When my wife and I were first married I worked at a fish market and she worked as a travel nurse

We had just enough credit to buy a house (I consider this a legitimate debt) and rack up a few other small debts (less than $1,000.00). 

When our first child was about to be born we decided we needed to purchase a camcorder on credit to record the anticpated event. 

That was really the beginning of now more than a decade of ever increasing consumer debt in our family. 

We have finally found some help. I hope you can appreciate this advice as we do.

The following is taken from a magazine article titled "Debt Addiction: You Can Break The Habit" by Jerry Mason.

The Credit Addiction Test
Have you become addicted to using credit? Answer the following questions to find out.

1) Do you make only the minimum payment due on credit card statements? 

2) Do you have past-due bills for items bought on credit? 

3) Are you tempted to consolidate your debts by taking out a home equity loan? 

4) Do you find it impossible to save for long-term goals like education? 

5) Do you and your spouse fight about borrowing money? 

6) Is your budget tight because so much of your income goes to creditors?

Overcoming Debt Addiction
Step 1: Admit you have a debt problem.

Step 2: Get your spouse and children involved in your plan to get out of debt.

Step 3: Determine why you are in debt. Medical Bills? Lifestyle? Car/home repairs?

Step 4: Stop creating debt. Destroy credit cards and payoff home equity loans. I actually know someone who froze her credit card in a block of ice. 

To use her credit card she had to thaw the ice. This gave her time to "cool off" before making a purchase she could not pay cash for.

Step 5: Use a budget. My wife and I spent one month writing down everything we bought in a ledger. 

This helped us determine where all of our money went each month. I didn't realize I spent so much time at McDonalds.

Step 6: Develop a plan to eliminate consumer debt.

If you need help with getting out of debt and want to avoid bankruptcy, you may also want to contact a debt relief company.  They can help you implement the steps outlined above.

How To Stop Foreclosure

As a practicing real estate attorney I have attended numerous real estate foreclosure auctions. 

More often than not I have attended the auctions representing the foreclosing bank. 

In most instances, the person losing his or her home has recently lost a job and experienced a temporary "dip" in income. 

Don't let the temporary dip in income cause you to lose your home; especially if there is equity in the home.

When facing foreclosure, time is of the essence. 

The first thing you should do is contact your lender to see if you can defer certain payments until the end of the loan. 

Many local lenders are willing to do this due to the costs associated with foreclosing on property. 

Lenders face court costs, attorney's fees and potential loss of principal and interest should your home not sell at auction to cover these amounts.

Remain calm if your lender is not willing to defer payments and insists on continuing with a foreclosure lawsuit. 

In most states, a homeowner has at least three months once a case is turned over to a lawyer before the property is scheduled for auction. 

Do not ignore paperwork sent to you by the bank's attorney hoping a judge will accept the explanation "I never received it." 

It has been my experience that this excuse fails 99 times out of 100 and makes the homeowner lose credibility. Continue your job search.

Once a lawsuit is filed you have a certain number of days to respond. In most states that number is 20 days. 

Be sure to respond to the lawsuit with any meritorious defenses you may have on the last possible date. 

Once you respond, the bank's attorney can no longer file for a default judgment. 

It will take the bank's attorney at least 30 days from the date of your response to obtain a judgment. 

In most states, an auction on the property cannot occur less than one month after judgment is obtained.

Once the property is finally set for auction consult a bankruptcy attorney about filing bankruptcy. 

Filing bankruptcy at any time prior to the auction will automatically stay the auction until the bankruptcy court has had an opportunity to review the matter. 

More often than not, a bankruptcy attorney will allow you to catch up the delinquent payments over time. This will be done in an Order of Adequate Protection.

Post Judgment Discovery
If you decide not to take the Bankruptcy route and a judgment is entered against you, make sure you respond to all of the post-judgment discovery

Failure to do so could end up in additional attorney's fees and costs.


Construction Lien Law in Florida

In Florida, a contractor who furnishes labor, services or materials for the improvement of real property is entitled to a lien on such property if he is not paid. 

If the contractor is not in privity with the owner (or in other words, has no direct contract), he must first notify the owner in writing that he is performing work on the project before he can file a lien. 

The notice must be either hand-delivered or served by certified or registered mail no later than 45 days after the contractor begins work on the project.

The contractor must record a Claim of Lien with the clerk of court in the county where the property is located within 90 days of last furnishing labor, services or materials for the improvement of the property. 

The contractor must serve a copy of the Claim of Lien on the owner and lender (if any) within 15 days of recording to protect its lien rights. 

The Claim of Lien must contain the following:
a) the name and address of the lienor;
b) the name of the person with whom the lienor contracted;
c) the services or material furnished and the contract price or value thereof;
d) a description of the real property;
e) the owner's name;
f) the first and last date labor, services or materials were furnished;
g) the amount remaining unpaid; and
h) the date and method of serving the notice to owner.

Commencement of Suit to Enforce Lien
Suit must be filed within 1 year from the date the lien is recorded or the lien will expire. 

If an owner sends the contractor a Notice of Contest of Lien, then the time to file a lawsuit is shortened from 1 year to 60 days from the date the Notice of Contest was mailed to the claimant by the Clerk of Court. 

This is one of several statutory land mines that may result in an unwary contractor losing his lien rights.

Waiver of Lien Rights
A Lien Waiver is a signed, notarized statement that states that the contractor has been paid for all work performed through a specific date. 

The right to claim a lien cannot be waived in advance. Parties are free to create a partial release or
"Conditional Lien Waiver" to ensure the contractor will be paid or their waiver will not be effective.

Attorney's Fees
The prevailing party an any action under Chapter 713 (the Florida Lien Statute) is entitled to recover his reasonable attorney's fees in any litigation.

You can also read my post on Louisiana Lien Law.
© CORPUS JURIS. All rights reserved.