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Take Care of Your Legal Needs

It’s more than half way through the year so this is a great time to take care of some essential legal planning responsibilities – and you’ll feel much better when you do.

Estate planning

Many people mistakenly think of an estate plan as something that matters only when they die, but there’s really much more to it than that. With a thorough and carefully prepared plan in place, your loved ones won’t have to experience the additional stress of wondering about your final wishes (health, financial, etc.) should you become physically incapacitated and unable to share those wishes during a highly emotional time.

If you already have an existing estate plan, take the opportunity to review the plan so it reflects any changes that took place prior to now. Such changes might have included:

  • Got divorced or remarried
  • Blessed with the birth or adoption of an additional child in the family
  • Need to remove or replace an agent or beneficiary who passed away
  • New wishes for how you want to have your medical needs addressed

It’s also important to note that, depending on when you first created your estate plan, California law may have changed in ways that invalidate some provisions (or at least affected them so they’re no longer practical). In my legal practice, for example, I’ve come across very old estate plans that haven’t been modified to accommodate requirements under HIPAA (Health Insurance Portability and Accountability Act) and/or the California Probate Code. Without being updated, such plans could run into serious legal problems at a later date; the same problems you have sought to avoid by creating your estate plan in the first place.

Now’s a good time to check with an experienced lawyer to make sure your estate plan is still legally valid and will carry out your wishes, and, if you do not have an estate plan in place, get to it!

Debt relief

Are you one of the many, many Americans who have been accumulating considerable debt lately? Rather than wallow in this predicament, take advantage of free consultation offered by many debt relief attorneys (including myself)!

We can help you design proactive ways to resolve your debt and gain control of your financial situation, so you can actually move forward without this enormous weight on your shoulders. Don’t wait for debt collectors to start coming after you!

Take action

Stop procrastinating! It’s understandable that people put off their legal planning—after all, approaching a lawyer about estate planning or debt relief or any other legal matter seems like a severely negative thing, and most of us naturally drag our feet on these issues, sometimes until it is too late. But think how much better you’ll feel after you address and resolve these matters directly.

For families and individuals who have enrolled in legal insurance plans, such as Hyatt Legal Plans, ARAG, Workplace Options or Legal Access/LegalEASE and Legal Resources, I suggest you take a closer look at what these plans have to offer. Many plans provide full-service benefits for legal matters like estate planning and debt relief. They’re also very helpful for general legal advice on a wide range of legal matters.

Remember—you don’t have to wait until you’re facing a lawsuit (or initiating one) to get in touch with an attorney. We can help you cope with many of life’s challenges and free you up for other important goals in the coming year.

Are you in need of legal counseling or have any questions about the above topics? The Law Offices of Ian S. Topf, APC offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

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A Policy You Didn’t Know You Needed – Legal Insurance Policy

Ever had an unexpected legal matter come up and you didn’t know what to do or who to turn to? Legal services have increased during the pandemic. Coping with a legal issue can be expensive, time-consuming, and emotionally overwhelming. Many employers offer a legal insurance plan as part of their employment benefits but those who sign up tend to forget they have it.

A legal insurance plan is similar to a health insurance plan. (Keep in mind this is not liability insurance either.) By enrolling with an employer’s plan, a small monthly amount is deducted from their paycheck. Employees then can gain access to a nationwide network of high quality legal services, attorneys, and legal resources without the costly legal fees. The legal plan provides a list of approved attorneys for you to choose from. When an attorney accepts your case, they submit a claim to the legal insurance plan provider, usually with little to no further expense to you (beyond minor out-of-pocket costs). Some policies may reimburse you for seeking out-of-network services or offer a discount to their legal services.

Every legal insurance plan provider has its own policies and procedures, but in general they cover a full range of personal legal matters such as the following:

Depending upon which legal insurance plan your employer subscribes to, you may have access to these benefits:

Advice and office consultations. Call an attorney for free advice and/or office consultation. Get guidance on your legal rights in a given situation, as well as access to various online tools and resources. This benefit could lead to preventing a serious legal situation from occurring in the first place.

A resource in times of legal trouble. Should you need a lawyer for any of the cases mentioned above (or others), through your insurance plan, you’ll be in a great position to find the right person for your needs. 

Financial benefits: Review the policy’s coverage for services, rates, discounts that are offered. If you’re unsure what legal benefits your employer provides, I urge you to review the policy with your boss or HR representative. Knowing this ahead of time will have you prepared to know your options.

This employer-provided benefit can reduce the stress of anyone with a legal issue, as well as the time and expense involved. You will feel more in control of the situation and closer to resolving the issue and moving on with your life. Legal insurance coverage is a valuable resource to have access to.

The Law Offices of Ian S. Topf belong to a variety of employer-provided legal insurance plans. Contact us for more information about getting a free consultation .

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What You Need To Know About Wills and Trusts

Many have experienced anxiety by reminding themselves of their own mortality with the COVID-19 pandemic. As a result of this, people are reaching out to me for estate planning. They ask if they need a Will or a Trust? Would they be able to get by with just a Will? As an attorney, I will advise if one needs either a Will, a Trust, or both.

What is a Will?
A Will is a document that states the wishes of a person after his/her death. It is a document that can contain provisions for guardianship over minor children as well as distribution of one’s estate after their death. However, a Will on its own has very little power or authority; a person who is responsible for handling another person’s estate, the “Executor”, cannot just take a copy
of a Will to a financial institution, hand it over to the bank representative and obtain the funds of the deceased. The Executor can only act out the terms of the Will after the Will is submitted to the Court (a.k.a. Probate). The Court will then consider the terms set out in the Will to create Orders authorizing the Executor to act. (A Will is generally only words on a paper until it’s
submitted to Probate and the Court takes action on it.) A Will sets up an estate for Probate… so, is a Trust the only means to avoid the expenses and consumption of time (Probate)? Not necessarily…

Do I need a Trust?
A living revocable trust is a legal instrument that sets out ownership of assets, guidelines for the management of those assets while you are still alive, and distribution of assets after you pass away. Generally when you have a living trust created, you still maintain full control over the assets. In California, the extent and value of your assets determine whether a trust is needed or not.

If the value of your estate is $166,250 or more, or if you own real estate, it is strongly recommended to have a living trust to avoid possible probate when you pass away. It allows the designated agent (Successor Trustee) to act/corral assets and distribute them without court intervention.

When is a Trust not needed? Small Estate Petition/Probate Code 13100
In California, if a person’s estate is under $166,250 and does NOT have an ownership interest in real estate, there is an administrative action that can be taken without going to court to corral and distribute one’s assets. One can obtain a Small Estate Petition (Probate Code 13100). This declaration will be presented to the entity (i.e. financial institution, plan administrator, agency)
who currently has control of the assets being sought, under California law, the declaration will give the entity the authority to release the assets to the deceased’s next of kin/legal heir(s).

Example:
A person has three bank accounts and a car in their name. The total assets are $100,000. The personal representative of the estate may be set out in the person’s Will, or, if there is not a Will, the next of kin/legal heir(s) can sign a Small Estate Petition under Probate Code 13100 to collect personal property of a small estate.

Another consideration when making a decision on whether you need a Will or a Trust or both is that a person cannot just focus on the here and now – a Trust will serve as the depository for current and future assets. Anticipate how your estate will look in the foreseeable future before making the decision.

Unsure if you have sufficient estate planning? Check with a lawyer to verify that your estate is in order. Take control of your estate rather than having your state control your assets when you pass. 

If you have any questions about a new estate plan or in need of updating your existing estate plan, contact the Law Offices of Ian S. Topf, APC by calling (619) 546-9777 or by email: ian@topf-law.com.

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Time To Review Your Estate Plan

Here we go again… Another year has passed and with it came life events that may have affected your estate plan, if you in fact have one.

The overwhelming truth is that far too many people don’t plan ahead and if they at one time did have the wherewithal to do so, they forget to update as time goes on. If you don’t have an estate plan, now is the time to get started to give yourself peace of mind. Depending on what you want and what your overall situation is, (financial, family, etc.), there are various ways you can go about it.

Estate planning is not just having a trust or a will to plan for what happens after you pass away. It’s also preparing for having someone act when you cannot due to illness (e.g. Alzheimer’s) or other incapacity. If you just have the shirt on your back, you may be able to get away with a durable power of attorney (for your finances) and advance health care directive (medical), but don’t limit yourself to the here and now. Estate planning goes much further than that; the future you – the one with the family of four and a house in the suburbs – will thank you. It’s on you to reach out to a legal professional to see what you really need.

Over the last couple of weeks, I have had individuals come in and want to discuss recent deaths in their family. They want to know how to take care of their recently departed loved one’s estate. In some cases, there was no estate plan in place and others have old estate plan documents, (circa 1980’s), that were never reviewed and updated. I’m seeing more and more situations where trusts were created but only partially funded, (meaning assets actually transferred to the name of the trust), and others not funded at all. By maintaining an account or property in an individual’s name, the third party who controls the asset (e.g. bank, county recorder) will not recognize the trust and, in many cases, the intended beneficiary will need a court order, (e.g. probate), to receive the asset(s). Again, a properly prepared estate plan and some good advice and guidance from an estate planning attorney now will avoid the hassle of probate.

Do You Have An Estate Plan?

Myth: Estate plans are only for the retired or rich so I don’t need one.

Truth: Everyone has an estate. Have a bank account? How about a car? Everyone needs a way to handle their affairs should they get sick or worse.

There are many reasons for creating your estate plan. In my opinion, the two main ones are as follows:

1. To ensure your wishes are carried out during your lifetime and beyond with as little complication, (cost, time, court involvement), as possible.

2. To organize your life by identifying your assets and obligations, as well as making sure you have a plan in place for both. By creating an estate plan, securing your assets, and having your financial obligations inventoried, you are avoiding a scavenger hunt for your loved ones who would have to figure out what you had and what needs to happen.

Depending on the overall value of your estate, not just now but in the anticipated future, you may only need a basic estate plan (Living Trust, Will, Power of Attorney, and Advance Health Care Directive (including a Living Will)).

When Was The Last Time You Looked Over Your Estate Plan?

For those of you who already have had an estate plan prepared, do not think you’re done. Many people take their estate planning documents, thank their attorney, and then stick it away, (hopefully in a fire safe, safe deposit box, or other secure container), and forget about it. Others may bring it out only when their financial advisor or other third party members need to see it.

Estate planning attorneys recommend that you review your estate plan at least every five to seven years but the reality is that there may be life events that may require updates sooner. These include:

-Additional child to the family

-Purchasing a property or other large asset

-Marriage or divorce

-When a child becomes an adult

-When you move to a different state

-When you want to update beneficiaries

-Family member passes away or is disabled

-Changes in your financial goals

-Changes in federal or state laws involving taxes or investments

-Update your medical needs

Check with an estate planning attorney to make sure that your estate is in order and your actual current wishes are documented. Take control of your estate rather than having your state control your assets when you pass away.

If you have any questions about a new estate plan or are in need of updating your existing estate plan, contact the Law Offices of Ian S. Topf, APC by calling (619) 546-9777 or by email: ian@topf-law.com. The Law Offices of Ian S. Topf, APC offer a free consultation on a variety of issues, including estate planning, family law/divorce, bankruptcy, criminal/DUI matters, and landlord/tenant disputes.

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Are You A Tenant Moving Out? What You Need To Know About Security Deposits

Lately, I have been getting requests regarding terminating a tenancy. What is a tenant to do when facing the end of their lease or if there’s a desire either by the landlord or tenant to terminate the lease early? More importantly, and the most frequently asked question on this matter:  what’s going to happen to the security deposit?

California Civil Code Section 1950.5 mandate that landlords have a hard 21 days after the tenant vacates the premises to return part or all of the security deposit and if the security deposit isn’t fully refunded, an itemized list of deductions.

So a tenant wishing to maximize the amount returned from his or her security deposit should follow some basic but important guidelines:

As soon as the landlord is aware that the tenant will be vacating the property, the landlord is required to give the tenant a written notice of the tenant’s options for a pre-move-out inspection of the premises, where the tenant has a right to be present at the time of the inspection, within a reasonable amount of time prior to the actual move-out date.

  • If the tenant agrees, the inspection needs to happen in the final two weeks with an agreed date and time.
  • If no agreement can be reached on a date and time, the landlord can schedule an inspection within 48 hours of the notice.

My advice to tenants is to try to schedule the pre-move-out inspection well in advance of the actual move-out date, just in case there are noted issues/damages. This will allow the tenant plenty of time to remedy the situation on their own rather than leaving it up to the landlord to take care of it after the tenant has left. In many situations, the damages are minor and can be fixed by the tenant themselves at little cost, while landlords generally hire people to make repairs and pass the costs along to their tenants out of their security deposit.

When conducting the inspection, the landlord usually uses a move-out inspection form, which is typically the same as the move-in form, to note any damage/concerns. So long as the tenant is present, both the landlord and the tenant can have input on the notations on the form. From the observations at the inspection, damages can be evaluated and resolved. It is important for tenants to document the condition of the property both at the inspection and when they actually move out – in other words, take photos.

After the inspection, the landlord may or may not provide the tenant with an itemized statement of the landlord’s intended deductions from the security deposit.   These can include professional cleaning, replacing the carpet, drywall repair, etc.  Tenants should not presume that such a list will be provided before move-out and should insist on promptly getting a copy of the form they completed with the landlord at the inspection.

If a move-out inspection takes place prior to the tenant leaving, the inspection form must include a complete evaluation of the condition of the premises and both the landlord and the tenant will be bound by the notations on same, with certain exceptions; a landlord can include anything that was not listed on the pre-move out inspection only if the damages were hidden by the tenant’s possessions. For example, if the tenant’s furniture blocks a cracked baseboard or a hole in the wall, as long as the landlord can show that they did not have access to the area, it can be added to the list after the tenant vacates to hold the tenant liable for any necessary repairs.   Tenants should compare the itemized deduction list, provided by the landlord with the return of their security deposit, with the move-out inspection report and the tenant’s own notes.

Allowable deductions:

  • Repairs for damages other than normal wear and tear.
  • Cleaning (the residence must be clean as it was when the tenant first moves in).
  • Replacing or repairing personal property, such as garage door remote or keys

What is not deducted:

  • Normal wear and tear, such as faded paint (lifetime of paint: 3-5 years), worn carpet (lifetime of carpet: 5-6 years), or loose grout on bathroom tiles (lifetime of tiles: 25 years).
  • If the residence is as clean moving out as when the tenant moved in, then cleaning costs may be objectionable.
  • Defects to the premises existing prior to the tenant moving in.
  • Any damages not noted by the landlord in the move-out inspection, unless the landlord was unable to ascertain the same due to the tenant’s possessions.

Possible deduction – additionally, unpaid rent may be taken out of a security deposit only if the lease specifically provides for such a deduction.

Additional Words of Advice:  During the move-out inspection, the tenant should give the landlord their forwarding address.  Without knowing where to send the security deposit and itemized list of deductions, the landlord will have a reasonable excuse as to why they could not comply with the 21 day time period for the return of the security deposit.  And that 21 day rule holds steep penalties for landlords:  failing to comply Civil Code Section 1950.5 can subject a landlord to penalties of up to two (2) times the amount withheld, effectively requiring payment to the tenant of a total of three (3) times the amount withheld, along with any fees and costs incurred for having to bring same to the Court’s attention.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf, APC offer a free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

To Stash or Not to Stash: Do I Have to Disclose Everything I own in a Divorce Proceeding?

People who come to my office seeking assistance with a divorce often ask one of two questions, and sometimes both:

  • “Do I have to tell my spouse about everything I own or owe?”
  • “What happens if my spouse is hiding an asset?”

These are important issues that need to be addressed, since the process of dividing assets and debts can determine the quality of life for both partners following their divorce. Any attempts to hide property or mislead the other person by failing to disclose can have serious consequences for everyone involved.

In the course of a legal separation or divorce, California law dictates that each spouse must provide complete information about all of his or her assets (such as property, vehicles, financial accounts, business interests, etc.) and debt (loans, credit card payments, etc.). The statements made by each spouse concerning assets and debts are contained in what’s called a Schedule of
Assets and Debts, and may also be disclosed in Community and/or Separate Property Declarations.

During the legal proceedings, each party is required to serve their financial disclosures on the other party and file a declaration confirming such service of disclosures with the court. Any Judgment of divorce or legal separation entered without such disclosures is generally considered void under California law.

In a situation where there’s an unintentional omission of assets, the court (once alerted to this omission) usually readdresses the division of property to make sure there has been a fair and equal division of assets overall. With an intentional omission of assets, (such as the concealment of a party’s stock options or undeclared cash in the bank), the court may award the other party
more than the typical 50 percent of the community property asset — sometimes up to 100 percent! The court may also demand that the offending party pay attorney fees and costs as sanctions for having to litigate this issue.

So how can one party find out if their spouse or partner is deliberately hiding assets?

A lot depends on the complexity of the particular case, but in general, legal professionals can call upon several resources to obtain information about undisclosed assets. During what’s called the “discovery process,” one party’s attorney can formally request production of relevant documents
and other information from the other party or invoke the power of subpoena to third parties to get necessary information and/or documentation handed over. There’s also the option of hiring a private investigator to do an “asset search”—the results of which are regularly admissible in court.

What happens if a hidden asset is discovered after the division of assets has been completed? Unless otherwise ordered, the court maintains jurisdiction to address this issue should it arise, even after judgment has been rendered. An undisclosed asset can be subject to a further court order after the divorce has been finalized, so long as it is promptly thereafter brought to the
court’s attention.

Post-Judgment penalties for concealing or misrepresenting one’s assets or debts may include payment of the other party’s attorney fees and costs, a dismissal of any of his or her own claims, reallocation of asset and debt division (if possible) and, even, incarceration. That’s why the safest rule of thumb in a divorce proceeding is to always disclose your assets and debts.

Any situation where significant assets or debts are concerned may be too complicated for the parties to resolve on their own. Consulting an experienced family law attorney is your best bet to ensure a proper division of assets and debts before the divorce or legal separation proceeding comes to a close.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

Tenants’ Rights When a Property is Sold or Goes into Foreclosure

I’m often asked by tenants what they can do if the house they’re renting is about to be sold by the landlord or is headed for foreclosure. Here’s information that should prove helpful to you in these situations:

In California, landlords wishing to sell their rental property are required to notify tenants in writing of their intention to sell. Many landlords ask tenants to vacate the property promptly, since having renters occupying the property generally limit the pool of potential buyers to investors or others willing to maintain the property as a rental.

Generally speaking, a rental lease will provide terms as to how much time a landlord must give the tenant to vacate the property. If such written terms are not included in the lease, the legal time requirement is at least 90 days—and notice must be delivered to the tenant in writing.

When a new owner takes over

If a prospective buyer wishes to purchase the property free and clear of occupants, the buyer can negotiate that the seller ensures the property is vacant by close of escrow. If the seller had not previously provided a Notice to Vacate to the tenant(s), the escrow period may end up being extended, since a Notice to Vacate provides tenants 30 to 60 (or even 90) days to relocate. Furthermore, if the tenant refuses to vacate after given proper notice, then the seller may be required to initiate legal proceedings for eviction.

In the event you face a Notice to Vacate, you’re entitled to all the privileges afforded by the lease until the period expires, (though you still have to pay rent). Whether it’s a foreclosure or sale situation, you can recover all or a portion of your security deposit, subject to any allowable deductions.

If the property is sold or foreclosed upon prior to the completion of a noticed period to vacate, the new owner takes the property subject to the tenant’s lease. I have found that, frequently, new owners offer current tenants “cash for keys”—meaning they will pay tenants to facilitate moving out so there’s no need to resort to legal proceedings (like eviction).

Stay aware of the situation

Tenants generally face a different problem when the property is in foreclosure. In the vast majority of situations, a tenant’s lease will survive the foreclosure process and the new owner takes the property subject to the lease. However, to stay in good standing under a lease, a tenant must make rental payments to the landlord/current owner of the property. How do you know if a piece of property is about to go into foreclosure or seems headed that way? If the landlord isn’t keeping you updated, contact the County Recorder’s office and file a Request to Notice, asking that you be alerted to any foreclosure proceedings. By doing so, you will receive copies of a Notice of Default and Notice of Sale in a timely manner.

Tenants have substantial rights in the event of a property sale or foreclosure, but they must stay on top of the situation in order to maintain those rights. In a foreclosure, for example, chances are good your security deposit will be gone with the original landlord who lost the property—in which case, you can seek return of that security deposit from the new owner. But in order to do
so, you must have documentation confirming that the original security deposit was paid (as noted in the original lease or through a cancelled check). So be sure to keep all documents relating to your rental (i.e. leases, canceled checks, or other proof of payment, etc…). Don’t throw anything away.

If you learn that the rental property you’re living in is about to be sold or go into foreclosure, contact an attorney. They will help make sure you are able to preserve and assert all your rights as a tenant.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

If You Pay into a Legal Insurance Plan, Don’t Waste it!

Coping with a legal issue can be expensive, time-consuming, and emotionally overwhelming. Many employers offer a legal insurance plan for just such situations as part of their employment benefits but in my experience a significant number of people sign up for such a plan and completely forget they have it.

Legal insurance won’t count for much if you don’t take advantage of it.

A legal insurance plan is similar to a health insurance plan. By enrolling with an employer’s plan and having a small monthly amount deducted from their paycheck, employees gain access to a nationwide network of attorneys and legal resources. In many cases, you get high quality legal services without the costly legal fees. The legal plan provides a list of approved attorneys for you to select from, just as you would a doctor. And when an attorney agrees to take your case, he or she submits a claim to the legal insurance plan provider, usually with little to no further expense to you (beyond minor out-of-pocket costs).

Each legal insurance plan provider has its own policies and procedures, but in general they cover a full range of personal legal matters, including:

  • Family law
  • Debt matters
  • Wills and estate planning
  • Defense of civil lawsuits
  • Traffic defense
  • Juvenile court issues
  • Real estate law

Depending upon which legal insurance plan your employer subscribes to, you may enjoy these benefits:

Advice and office consultations. Call an attorney for free advice and/or office consultation. Get guidance on your legal rights in a given situation, as well as access to online tools and resources. This benefit could lead to preventing a serious legal situation from occurring in the first place.

Build a relationship. Through a legal plan, you can develop a relationship with an attorney that might prove very helpful later on. Also, you know that lawyers who work with a legal insurance plan have been vetted for competence and reputability.

A resource in times of legal trouble. Should you need a lawyer for any of the cases mentioned above (or others), through your insurance plan, you’ll be in a great position to find the right person for your needs. It’s far better than simply typing in “I need a lawyer” on a Google search.

This employer-provided benefit can dramatically reduce the anxiety anyone feels with a legal issue, as well as the time and expense involved. You feel more in control of the situation and closer to resolving the issue and getting on with your life.

If you’re unsure what legal benefits your employer provides, I urge you to take a few minutes to talk with your boss or HR representative. Legal insurance coverage is too valuable a resource to overlook.

The Law Offices of Ian S. Topf belong to a variety of employer-provided legal insurance plans. Learn more about getting a free consultation .

Timing is Critical for Divorce/Dissolution of Domestic Partnership andBankruptcy Filings

Debt and other money issues are often at the root of divorce or the dissolution of domestic partnerships. But these problems don’t just go away once a couple separates. When debt is incurred by spouses or domestic partners in their joint names (and, in some cases, in just one party’s name), creditors can go after either party, regardless of a divorce or dissolution of
domestic partnership order.

For this reason, when one or both parties have racked up significant debt and look ahead to life as single individuals, they may see bankruptcy as the best way to address their financial situation.

Filing for divorce and filing for bankruptcy is, of course, two separate legal matters but if both actions are deemed necessary, the timing for each filing is especially critical. Why? Because while there may be benefits to filing jointly for bankruptcy protection, such a move is generally not permitted once a divorce becomes final. As for domestic partners, the Defense of Marriage Act
prohibits joint bankruptcy filings for unmarried partners.

Benefits of joint bankruptcy filing include:

  • Most attorneys charge the same fee whether one person or a married couple file for
    bankruptcy at the same time.
  • Filing for bankruptcy before a divorce should simplify debt and property division issues
    and lower your divorce costs.
  • In some circumstances, a married couple with dependents may find themselves eligible
    for certain types of bankruptcy relief, i.e., Chapter 7 discharge, for which a divorced
    individual with only visitation rights to his/her child(ren) may be deemed ineligible.

I often see clients who come in for both divorce and bankruptcy. If they both intend to file for bankruptcy, it generally does not matter which filing goes first. But if one party files for bankruptcy and the other party does not, things can get messy.

When a bankruptcy action is pending, Family Courts are temporarily deprived of their jurisdiction over property and debt issues but may still make orders with respect to the status of the marriage (or partnership) such issues as child custody and child/spousal support. Once the bankruptcy matter has been settled, parties then can return to Family Court for orders relating to what remains with respect to asset and debt division—if any assets and/or debts are left over after the bankruptcy.

Sometimes it’s beneficial to file for bankruptcy after a divorce, but in general, it makes sense to get rid of the debt together before the divorce is granted. Whatever your situation, please be sure consult with an attorney before moving ahead with either a divorce and/or bankruptcy filing.

Are you in need of legal counseling? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, bankruptcy/debt collection defense, to DUIs/criminal defense, and landlord/tenant disputes.

Tips on Avoiding Foreclosure Scams

Anyone facing the possibility of foreclosure on their home is in serious financial distress. People in these situations are susceptible to undue influence and can be easily misled into making bad decisions. It’s a sad but true fact—there are many unscrupulous third parties who won’t hesitate to take advantage of someone desperately seeking a way to save their house
or at least some of their finances. If you are facing foreclosure, here are some things to look out for when seeking professional assistance:

Scams come in many forms

Foreclosure scams, also known as “rescue scams,” come in many forms. The most common involve what companies call “mortgage relief services.” They say they’ll help you refinance your mortgage in a timely fashion so that a foreclosure sale doesn’t take place out from under you. For this alleged service, they charge a huge fee, (and sometimes additional fees for “operating
costs”), with the promise that the homeowner will walk away still owning the property and with a refinanced mortgage and all of their missed payments cleared up.

Sound too good to be true?

In the vast majority of cases, it is. What generally happens in these cases is … nothing ever gets done. The company that made such lifesaving promises collects its fee and then basically does nothing, never returns calls, etc. This goes on until the house goes into a foreclosure sale, at which point the former homeowner is simply out of luck. And just try to get a refund . . .

Another common scam involves a title transfer, where the foreclosure relief company requires you to turn over title (ownership) of your house either to them or to some other third party. You’re permitted to stay in the house as a tenant (renter) and, so the promise goes, with the plan to eventually buy back the property once the mortgage issue has been resolved.

The problem is, once you turn over the title, these companies routinely provide nothing in writing that validates this supposed agreement. Generally speaking, the title transfer process ends up with the third party claiming they were unable to save the house or that they now own the property outright, with no recollection of any alleged agreement with you. If they want, they can
sell the house themselves (they’re now the title-holders, after all) or they can open a home equity line-of-credit or other loan against the property, and take out any equity from the property. The end result – you lose any anticipated equity and, if you’ve been staying in the house as tenant, you’ll likely be evicted as well.

How can you avoid falling prey to schemes like these?

The office of the California State Attorney General offers helpful tips , including these:

  • Never transfer title or sell your house to a “foreclosure rescuer.”
  • Do not make mortgage payments to anyone other than your approved lender or loan
    service.
  • Do not sign documents without carefully reading them first. Homeowners believe they’re
    signing a document for a new loan or a loan modification. They learn later that they’ve
    transferred ownership of their home to someone who is now trying to evict them.

This is great advice but I want to add that you should always contact a lawyer before approaching any business promising foreclosure relief or responding to such a solicitation. Believe me—these companies have no accountability. They won’t think twice about taking your money and then disappearing.

If you’ve already become a victim of such a scam, it’s not necessarily too late to take action. A lawyer knowledgeable in this area can still take steps to help remedy the situation.

Are you in need of legal assistance regarding debt relief options or have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from bankruptcy, debt collection defense, estate planning, family law, as well as DUIs
and civil matters.

Too Poor to File for Bankruptcy?

According to a study by the Federal Reserve Bank of New York, changes originally enacted in 2005 to the Bankruptcy Abuse Prevention and Consumer Protection Act have made it substantially more difficult for “financially struggling people” to file for bankruptcy relief.

While it’s true that changes like these have made it tougher for people to seek bankruptcy protection in general, I don’t believe the additional hurdles put into place present a significantly greater financial hardship than before these changes were made. Remember, as stated in a couple of my prior blogs, there may be several different options to explore if you’re in need of debt relief.

The three common debt relief choices are:

Ignore the debt. Typically under California law, there’s a four-year statute of limitations for debts (except those made with an oral contract, for which the statute of limitations is two years). While I generally do not advise clients to go this route, especially if your debt(s) were incurred recently, you may just simply ignore your debt and hope the statute runs. In my experience, creditors are a pretty unforgiving bunch. Eventually you may get sued, which will lead to having your wages garnished, liens attached to your property, and/or bank accounts/other property seized and forfeited to your
creditor(s). Also, interest, penalties, and other fees for non-payment will keep accruing on your debts, worsening the situation.

Negotiate to settle the debt. In general, creditors are willing to reduce the overall balance owed on a debt, if they know they are going to get paid, especially if (1) you’ve missed at least a few payments and (2) you are willing to pay off the settled amount promptly (either lump-sum or over only a couple of months). The bad news is the government has made it a bit harder to negotiate with creditors. There is now a mandatory requirement that, with certain exceptions, creditors issue a 1099 Form for any balance forgiven in a settlement when the settlement amount equates to a more-than-$600 reduction from the balance you actually owe, You will then have to declare that 1099 amount on your taxes as if it were income (and pay taxes on said amount). Say, for example, you owe $2,000 and you negotiate a lump-sum settlement of $1,200, you will receive a 1099 for $800 to be added to your gross income for the year when tax time comes around.

File for bankruptcy relief. If neither of the first two options work, you will probably find yourself in bankruptcy court. In my opinion, in general, the greatest change that impacts one’s ability to file for bankruptcy relief has been the increase in allowable attorney fees in bankruptcy cases.  For example, here in San Diego, California, bankruptcy attorneys can now initial fees of up to $3,600.00 for a Chapter 13 consumer bankruptcy filing, up from $1,700.00 in 2012.  These fees usually do not include certain administrative costs and other miscellaneous fees for actions that may take place during the course of the bankruptcy case.

Where does this leave people in need of relief?

In general, if push came to shove, most people can come up with the requisite monies needed to hire a bankruptcy attorney to assist them in getting rid of a far more substantial amount of debt. For those who aren’t able to do so, there will always be attorneys (including myself) who usually don’t charge the allowable “standard” attorney’s fee.

There’s also the option of representing yourself in matters of bankruptcy relief, though of course, you’re held to the same standards and requirements as an attorney representing you in such an action. In my experience, those charged with monitoring your bankruptcy case (court websites, court clerks, the U.S. Trustees’ office) can be both understanding and helpful in providing information that may assist you with proceeding on your own.

A word of caution: There are individuals and businesses out there offering bankruptcy preparation services for “reduced fees.” Across the U.S., bankruptcy courts have had issues with such services, since they generally offer document preparation services with minimal instructions on how to file. The end-product is often incomplete and there’s usually no follow-up after the bankruptcy petition is filed. While not all such bankruptcy preparers operate this way, I urge you to carefully explore your options before choosing such a service.

In conclusion, while it is true that desperate times call for desperate measures, there are several non-drastic opportunities out there for debt relief, contrary to what the public is being led to believe by recent studies and news articles.  So if you find yourself in a personal financial crisis, don’t just curl up into a ball and hope your problems will magically disappear; reach out to a skilled debt relief professional and explore your options.

Are you in need of legal counseling for bankruptcy or debt issues or have any questions regarding the above? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from bankruptcy, family law, and estate planning to traffic violations and landlord/tenant disputes.  

Questions To Ask At Your Free Legal Consultation

Many attorneys offer free legal consultation as part of their services to prospective clients. For the client, it’s an opportunity to get a feel for the attorney and see if they feel comfortable having this individual represent them in their legal matter. For attorneys, it’s a chance to get a sense of
the client’s legal needs and what actions should be taken to meet those needs. Usually these consultations last between a half-hour to an hour—just enough time for both parties to determine if there’s a “good fit.”

Of course, there are situations where one or both sides have an ulterior motive. The attorney may be chiefly interested in determining the value of the case to his or her firm, while some would-be clients make a circuit of law offices offering free consultations, trying to get as much free advice as possible while “price-shopping” different law firms.

I want to offer some guidelines for people genuinely interested in having a positive and informative legal consultation. First, here’s what the prospective client should bring to the table:

  • Be prepared. People often come to my office burdened with financial problems, but with no real understanding of what those problems are. It’s difficult to provide useful advice without a clear idea of the issues involved. For a bankruptcy situation, have a summary ready—what you make, what you spend, what you owe and what you own. In divorce cases, the attorney needs to know what you think the chief issues will be and where there are areas of possible agreement between spouses. Remember, many attorneys base their fees on the information they get from clients.
  • Be honest. Lying to the person you want to represent you, or even skimming over pertinent details, will cost you substantially more in the long run.

The following questions will help you decide if an attorney is right for you.

Experience

How long have you practiced in this field of law? Have you handled cases similar to mine before? Are you primarily a litigator, negotiator or mediator?

Managing the case

What are the possible or likely outcomes for my case? Do you recommend mediation or going to court? In a divorce case, how do state laws affect custody, support, alimony and the division of property? What’s your estimate about the length of time this case will take? What percentage of cases like mine get settled out of court? How will you keep me updated on the progress of this case?

Legal fees and costs

Obviously, this is a subject every potential client wants to know about. If an attorney is unwilling to provide a fairly detailed estimate of fees and costs, that’s a red flag and a warning to stay away. With this in mind, ask questions like these:

What is your hourly rate? Is a retainer required? Is this fee refundable in case we don’t move forward with litigation? How often will I be invoiced and will these invoices be broken down in detail? What other costs are involved for services like the use of associates, paralegals, experts, and/or other legal support staff? Can you give me a ballpark figure for the total bill (including fees and expenses)?

These are a lot of questions to ask in a short consultation time-frame, but the more you learn about what the attorney can offer, the easier your decision about hiring him or her will be. If you find an attorney you believe you can work with, my advice is to go for it. If after the consultation you have any concerns, getting a second or third opinion is completely acceptable.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.