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Jonathan Barlow

Clear Counsel Law Group / Jonathan Barlow

When are Creditors Allowed to Garnish Wages?

 

When are creditors permitted to garnish wages?

Transcript:

One question that I often get is, "When can a creditor start garnishing their wages?" The answer to this question is a little bit complicated. It all first starts with a debt that you owe a creditor. The creditor has a right to receive this money from you and if you don't make that payment, they can eventually take you to court and they will sue you and if you owe the money, there's really not that much of a defense that you can present in court to stop this creditor from getting a judgement. There may be some procedural or technical maneuvers that you can make to make the creditor's life more difficult and obtaining a judgement.

However, if you ultimately owe the money, the creditor will most likely eventually get a judgement against you. Once that creditor has reduced the amount that you owe them to the form of a judgement, they can take this judgement which is an order from the court that says that you owe that creditor the money and they can then take that judgement and get what we call a writ of execution. A writ of execution is essentially an order for the constable to go to your employer and start garnishing your wages. Now, what time frame is involved in this can vary depending on how quickly creditors are able to move through that initial state court lawsuit and obtaining a judgement and getting garnishment actually processed with the constable and with your employer. About the fastest that we usually see this process play out is about four to five days but you definitely want to act quickly once you've received a service of a summons for a state court action against you or a lawsuit because that means the creditor is actively seeking a judgement and we'll be seeking a wage garnishment against you in very short order.

Now, there are certain types of income that are exempt from wage garnishment or garnishment in general. Social security income in particular is a common type of income that I see that is exempt or protected meaning that even with a wage garnishment order or a writ of execution, there's no way for the creditor to take the money directly from that check that comes from the social security administration office. Now, there's a couple of different kinds of garnishment that we talk about. Another kind is taking money directly out of your bank account which we call a bank levy. Bank levy is a little bit different from a wage garnishment. In the wage garnishment they're taking money directly from your paycheck or from your social security check which they're not allowed to do. With the bank levy, they're taking money directly out of your bank account and instead of going to your employer, the constable goes to your bank and shows them that order that they're entitled to money and they can drain your bank account in order to pay off the debt that you owe them.

Now, bank levies are a little scary because I've come across a number of situations where creditors aren't very diligent in seeking out what type of money is being held in the account so even if you're holding protected funds, money that came from the social security office in your bank account, I've seen that money be levied and taken by creditors. Now, that's money you can get back but it's a difficult process to go through the mechanics of actually getting that money returned to you.

Along with this question of, "When can my wages be garnished?" is "What can I do to stop the garnishment?" There's two main ways of stopping the garnishment. One is to pay the money that you actually owe the creditor which if you're in the situation where you're being sued for this money, it's very unlikely that you have the money to pay them back. The other option is to file for bankruptcy and invoke the protections of the automatic stay of the bankruptcy code. Immediately upon filing for bankruptcy, the automatic stay goes into effect and it will stop a wage garnishment.

Bankruptcy / Bankruptcy Videos - 09/29/2015

The Advantages of Organizing Your Company as an LLC

 

Why incorporate as an LLC?

Transcript:

Hi, my name is Jonathon Barlow. I'm a partner at Clear Counsel Law Group. I'm frequently asked what the benefits are of using an LLC to operate a business rather than a corporation. It's a very common question, especially in the state of Nevada. An LLC is actually most preferred in the state of Nevada. Most people set up their businesses as LLCs rather than corporations. There are a few benefits that I want to point out in this segment. There are many other benefits that would take more time.

The first benefit is that the LLC doesn't have to follow the same type of formalities that a corporation has to follow. For instance, a corporation on an annual basis has to have an annual meeting of the board of directors, an annual meeting of shareholders. It has to do formal corporate resolutions and formal corporate documents. An LLC dispenses with those requirements and doesn't have to follow them unless it chooses to do so, which most don't.

The second benefit of an LLC over some corporations is that the LLC avoids double taxation at the federal income tax level. Some corporations called C-corps are taxed at the corporate level, and then again when that money is distributed to the shareholders, the shareholders are taxed on that income. An LLC is not taxed in the same way. All of the income through an LLC is passed down to the owners of the LLC called members. The members pay the income tax and the entity of the LLC does not, so it avoids that double taxation.

A big difference, though, between an LLC and a corporation is caused by a recent change the Nevada legislature put into effect earlier this year. In fact, the Nevada legislature in 2015 passed the largest tax increase in Nevada state history. That tax increase directly affects business entities, including LLCs and corporations.

For instance, let's think of two different types of businesses: an LLC that operates and that earns about $100 million a year in income. Its annual filing fee to the state of Nevada will be, at the most, $350. That includes a $150 annual list filing fee and a $200 state business license fee. Let's compare that to mom pop, who are operating a lemon stand as a corporation. Their filing fee, even though they make about $50 a year on their lemonade, is, at the very least, $650 to file to the state of Nevada to keep the corporation alive.

The interesting thing with corporations, let's say mom and pop make Lemonade Inc. go big time and they make it to a $100 million lemonade corporation. Their filing fees to the state of Nevada will increase depending on the value of the corporation up to almost $11,600. That's a huge difference between $350 for the $100 million LLC and the $100 million Lemonade Inc. it's over $11,300 difference.

Thanks to the Nevada legislature, they've even further incentivize us to use LLCs as a preferred business entity from in the state of Nevada. Corporations are simply getting left in the dust thanks to this large tax increase in Nevada history. For the many benefits that the LLC has, we encourage almost all of our business clients to use the LLC rather than a corporation. They'll see the benefits of it immediately, and especially on an annual basis as they avoid the higher annual state filing fees.

Corporations / Corporations Videos - 09/24/2015
homestead exemption, bankruptcy , nevada, castle

The Homestead Exemption in Nevada

As the old saying goes, a “man’s house is his castle.” This well-known legal maxim is one of the most deeply rooted principles in the American legal system1)See Weeks  v.  United  States,  232  U.S.  383,  390  (1914)  discussing  the  influence of  the  common-law  maxim  on  the  Supreme  Court., and embodies the idea that an individual’s home is a place of refuge from the cares of everyday life. However, just like a castle relies upon a moat, draw bridge, towering stone walls and the like to help keep the castle safe from outside threats, a person’s home must have certain protections in place that allow the resident to retain possession of the home, or the refuge provided by the home would be seriously undermined by the risk of losing the property to others.

One of the most serious threats to a person’s ability to keep their home is creditors, who can be likened to modern day marauders who would love nothing more than to storm the castle and kick the occupant(s) out on the streets. Creditors are in the business of collecting money. Period. If a creditor is not getting paid they often seek to forcibly take the money that they are owed through the legal system by any means possible. If there is equity in a person’s home that is not protected by law, and that person has not paid a creditor money that is owed under the law, then the creditor can potentially put a lien on the home and forcibly sell it in order to get paid from the equity available. The scary thing is that although a person may not currently owe any creditors on outstanding debts, it does not mean that an unexpected debt could not arise from any number of scenarios such as: liability in a car accident, a failed business venture, unexpected health or medical expenses, etc. Fortunately, as mentioned above, the law has long recognized the importance of an individual’s home, and, in most cases, provides for a way of protecting a person’s primary residence.

 

How the Homestead Exemption Protects You

The protection available in Nevada for an individual’s primary residence is referred to as the Homestead Exemption. The homestead exemption protects up to $550,0002)Although the homestead exemption allowed under Nevada law allows for $550,000 of protected equity, in bankruptcy cases, federal bankruptcy law limits the amount of protected equity in the home if the home was purchased less than 1215 days prior to the claimed exemption. If the home was purchased more than 1215 day prior, then the full extent of Nevada’s homestead exemption is available. of equity in a person’s home. This protection only applies to a person’s primary residence. Investment properties, rental properties, vacant land, etc. do not receive protection from Nevada’s homestead laws. Also, to invoke the homestead protections offered by Nevada law, it is necessary to record a Declaration of Homestead3)The form for Nevada’s Declaration of Homestead can be obtained here  with the county recorder in the county where the property is located. Once the declaration is recorded with the county recorder’s office, the home will be protected as that individual’s homestead as long as the individual remains living in that home.

Of course, the homestead exemption does not allow an individual to keep his or her home if s/he fails to pay a mortgage that was obtained by using the home as collateral. The exemption does protect against “outside” creditors like credit card companies, payday loans, judgment creditors, etc.  It is recommended that you speak with an attorney to discuss the full impact of declaring your personal residence to be a homestead so that you can erect legal protective barriers between your home and a host of potentially devastating results.

 

Footnotes

Footnotes
↑1 See Weeks  v.  United  States,  232  U.S.  383,  390  (1914)  discussing  the  influence of  the  common-law  maxim  on  the  Supreme  Court.
↑2 Although the homestead exemption allowed under Nevada law allows for $550,000 of protected equity, in bankruptcy cases, federal bankruptcy law limits the amount of protected equity in the home if the home was purchased less than 1215 days prior to the claimed exemption. If the home was purchased more than 1215 day prior, then the full extent of Nevada’s homestead exemption is available.
↑3 The form for Nevada’s Declaration of Homestead can be obtained here 
Bankruptcy / Nevada Law - 09/23/2015
EMV, credit card, small business, nevada, liability

Taking the Shock out of the Shock-and-Awe of EMV Liability

Nevada retailers and other merchants who accept credit card payments are rightfully confused and concerned about new EMV liability rules that will take effect on October 1, 2015. Though it is certainly disconcerting to hear that the retailer or merchant might be liable for fraudulent credit card transactions (as opposed to the credit card companies), the reality is that Nevada retailers and merchants are not facing impending doom and business ruin by not updating to EMV-compliant technology immediately. Of course, Nevada retailers and merchants should be aware of how these new rules affect their business and should make their own cost-benefit analysis before investing in new technology.

 

What is EMV and the “liability shift”

In the best layman’s terms I can think of, an EMV credit card includes a small chip rather than the standard magnetic stripe that we have all been used to seeing on the back of our credit cards. It is claimed that EMV-enabled cards incorporate safety features that will avoid almost all possibility of fraudulent credit card transactions. When literally billions of dollars of credit card fraud occurs every year with the standard magnetic stripe cards, this is a great development in the fight against financial fraud.

However, there has been a great amount of concern about the new EMV rules that take effect on October 1, 2015. The biggest question is about the “liability shift” that occurs on October 1, 2015. In uncomplicated terms, on October 1, 2015, retailers and merchants that accept credit card transactions that turn out to be fraudulent may be left on the hook for those losses, instead of the credit card companies who have always previously covered all instances of fraud1)It is important to note that there are many businesses that will not have any liability whatsoever for various reasons. The nuances of these differences is not examined here.. In short, the new EMV rules push some of the financial loss from fraudulent credit card transactions to the retailer, rather than the credit card companies.

Nevada retailers, particularly small businesses, should rightfully be concerned about this liability shift. One large fraudulent transaction could ruin a small business. To protect against this liability shift, the credit card companies are pressuring retailers to purchase expensive new credit card processing equipment that is EMV-compliant. Should Nevada retailers invest hundreds or thousands of dollars in new credit card processing equipment that is EMV-compliant? Should they take the risk of not having the equipment? What exactly is the risk of not paying for upgraded EMV-compliant equipment? Let’s try to take a bit of the shock out of these questions.

 

When a Nevada retailer might be liable for fraudulent transactions

Most importantly, Nevada retailers will be responsible for the financial losses from a fraudulent credit card transaction only in one circumstance: when a customer presents an EMV-enabled credit card, but the retailer is not using EMV-compliant credit card processing equipment to run the transaction. In this situation, if the transaction turns out to be fraudulent, the retailer will bear the liability (i.e., the financial loss) from the fraudulent transaction. It is also important to consider that if a customer presents a traditional magnetic stripe credit card, which is processed on either the old non-EMV-compliant equipment or the new EMV-compliant equipment, and the transaction turns out to be fraudulent, the retailer is not financially liable for this loss.

 

Should Nevada retailers take the risk?

Nevada retailers should justifiably be concerned about the financial harm to their business if the retailer is liable for a fraudulent transaction. However, as with most business matters, the retailer simply has to calculate a risk analysis and determine as a business matter whether it makes sense right now to protect against this risk by purchasing the expensive new equipment. The first consideration for Nevada retailers is the general fact that the vast majority of credit card transactions in Nevada will likely continue to be processed with the traditional magnetic stripe cards for quite some time. Only a relatively small number of credit card holders have and use an EMV-enabled card2)Las Vegas' retailers do more business [particularly per capita] than most American cities. When calculating your risk, know that other countries, European ones in particular, have used EMV-enabled cards for a few years now. Remember, any time that a fraudulent transaction occurs with the traditional magnetic stripe card, the retailer is not liable. Nevada retailers would do well to study their transactions in their business over the next month or two to determine how many credit card transactions are processed with EMV-enabled cards. If the number of these transactions is relatively few, the retailer may choose to take the business risk of possible liability on those few transactions.

Of course, in the next few years, we will see more and more credit cards issued with the EMV chip included, rather than the magnetic stripe. But over time, retailers will naturally purchase new credit card processing equipment as part of their normal course of business as equipment becomes outdated or broken. The retailer may choose to wait until the natural cycle of their business to change to the new EMV-compliant processing equipment. In any event, whether retailers choose to make the switch now or in the future, it is unlikely that a retailer will want to hold onto non-EMV compliant equipment forever.

Making the decision to transfer to EMV-compliant equipment is simply a business decision of weighing risks3)When analyzing the risk, remember to account for potential losses as a result of a being held liable for fraud and costs. Will a retailer be liable for the financial loss of a fraudulent transaction if the retailer processes an EMV-enabled card on non-EMV compliant equipment? Yes. Is that risk likely to arise? Maybe, maybe not. If the number of customers using EMV-enabled cards is low in the first place, and if the risk of the customers engaging in fraudulent transactions is even lower, a retailer may just conclude that the “liability shift” of the new EMV rules is much ado about nothing and may just choose to continue business as normal. But, as I like to say, “It doesn’t matter until it matters.” When that one ruinous fraudulent transaction does come through, do not say that you were not warned of the risk.

And, we wish you all a Happy EMV Day on October 1st!

Footnotes

Footnotes
↑1 It is important to note that there are many businesses that will not have any liability whatsoever for various reasons. The nuances of these differences is not examined here.
↑2 Las Vegas' retailers do more business [particularly per capita] than most American cities. When calculating your risk, know that other countries, European ones in particular, have used EMV-enabled cards for a few years now
↑3 When analyzing the risk, remember to account for potential losses as a result of a being held liable for fraud
Corporations / General Interest / Las Vegas / Nevada Law / News - 09/21/2015

How Long Do I Have to Wait to Sell Assets of an Estate that has no Will?

 

How much time does it take to sell assets from an estate with no will?

Transcript:

Hi, I'm Jonathan Barlow, probate attorney at Clear Council Law Group. One of our readers recently asked a question. He said, "I'm the administrator of my father's estate, and my father left no will." The reader was wondering when he's free to sell his house during the probate process. Once you're appointed as the administrator of the estate, then you are actually free at that point to begin the process of selling the house. You can hire a real estate agent to list the house for sale, and begin to immediately market the house for sale. At any time after the appointment of the administrator, you're given that power and authority by the court.

The process goes pretty much like the normal sale of a house, where you will look for someone that's interested to purchase the house. They will eventually make an offer to you, you as the administrator of the estate would either accept the offer, make a counter-offer, whatever you want to do to reach terms on the sale of the house.

Once you've agreed with a potential buyer on the sale of the house and how much they're going to pay for it, there are generally, there are 2 ways that you can have that sale finished or closed. The first way is the traditional way in probate process, which requires that the sale or the contract to sell the house be approved by the probate court. And actually when it goes into the probate court for the hearing, it begins a bid process, where other people in the audience there at court or those people that watch these listings, will come to court and can actually bid up the sale price there in open court. That's of benefit to the estate because it could raise the amount of money that comes into the estate from the sale. It's also kind of an administrative hassle, though, because then the sale could be delayed because of a new buyer coming into the picture.

More recently the Nevada legislature passed a legislation about 5 years ago that allows for sales of houses in probate to occur outside of the hearing process. So it no longer requires a hearing. And this is a process that not many people are familiar with, but it's a great benefit to the estate. Essentially you'd do the same process where you'd get a contract that's agreed upon, and a sale price that's agreed upon between you the administrator of the estate and the buyer. And you then just give notice to all the interested parties, to your siblings, to whoever else has an interest in the estate. And this is called independent administration of the estate. And assuming none of the interested persons object to the sale or to the sale price, you're then free within 2 weeks to close on the sale of the house. It doesn't require a court hearing, there are no bids taken. And this is a benefit to the state because the attorney's time can be decreased, plus less attorney's fees. And it's also administratively easier to sell a house through an independent administration of an estate sale.

So, in conclusion, as the administrator of the estate, you're fully authorized to sell a house immediately upon your appointment, and you can do it either one of 2 ways. Under the old process of having it confirmed by the probate court, doing a bid process. Or the newer way of under independent administration of the estate where it can be done without the bid process.

Probate / Probate Videos - 09/19/2015
republican debate, GOP, trump, rubio, carly fiorina, jeb bush, reagan

The Reagan Republican Debate: Winners, Losers, and the Trump Card

This is (somewhat) accurate. I just double checked. How? Stay tuned.

CNN, the number one source for gotcha journalism on the tv, did a great job of making the 3 hours1)Yes, seriously, it was that long about as entertaining as it could be. Overall, I was impressed with all of the candidates, in particular Mr. Rubio, Mr. Cruz, and Ms. Fiorina. The energy level, preparedness, and general Trumpyness was much better than round 1 (there are more than 20 debates schedule for our Republican friends, if the intensity continues to increase at this rate we will need a UFC-esq cage by January).

I pulled all the clips you need to see2)and probably one or two you don't, but by the time we are done here, you will have a sufficient number of talking points to convince anyone you sat through this marathon.

 

Part I: The Trumpening of the Republican Debate

It is well documented by the Sensitive Sally Media how Mr. Trump is nothing more than an 8th grade bully, and they have been itching for someone with enough strength to take him on3)We all know the best way to defeat a bully is with a bigger bully. Ms. Fiorina may be the only Republican who is not afraid of Mr. Trump. Jake Tapper, after waiting more than an hour, finally allowed Ms. Fiorina to address Mr. Trump's comments about her face:

 

GROAN! It is doubtful that she is concerned that his comments about her appearance were not kind, but that he is evaluating her appearance at all!4)#duh Saying she is "beautiful," when you obviously do not mean it, is not answer! He has a better business record than she does, why not stay on the issues5)What's that? Administering a business is different, bordering on irrelevant to being the leader of the free world? Sshhh, you are going to ruin all our fun. Do you want to be stuck watching Jeb! debate Mr. Walker's 3 boring talking points for the next 6 months? Good. Either do I.. The media LOOOVED Ms. Fiorina's answer. But will the voters? After the strangeness with Megyn Kelly6)I saw some of her recap of the debate, Ms. Kelly has handled Mr. Trump with class to her credit. Her post-game analysis was far superior to Mr. Hannity, who after sucking up to Mr. Walker with such hard hitting questions like "Isn't it hard to be on the stage with so many candidates; please feel free to recite your stump speech on my national tv show," brought on candidates that did not parrot his views on the Iran deal and badgered them, I will refrain from any false predictions.

Also, yes, I did catch Ms. Fiorina's "This is Water" reference! Now if only she would have given the HP treatment to that awful film they tried to put out.

 

Jeb!,7)The Jeb "!" exclamation point leads to about as much fun as one can have with political syntax, by the way was not paying close enough attention to Ms. Fiorina's interaction with the class bully, and apparently is not much of a fan of The Wire either:

 

 

"If you come at the king, you best not miss" is how I learned it. What did he think Trump was going to do there? Mr. Frum summed up the interaction well last night:

 

Jeb! showed some life later on though:

Even Mr. Trump seemed bemused. There was about an half hour there that we all referred to the former Florida Governor as Jeb!!, but then, as you will see below, we had to take back one of the exclamation points.

Now, Mr. Christie has just been itching to get some of this good bullying action. Finally, he got his opportunity, and talk about turning petulance into lemonade!

 

Won't somebody please think of the 55 year old construction worker?? Ms. Fiorina was winning the debate before this interaction. Mr. Christie through her off her game, and she had a difficult time recovering/Jake barely called on her the rest of the way.

Mr. Christie went from nearly being sent to the kids table with Mr. Pataki to being declared a "winner" by most of the lamestream media, an impressive feat. Now if only he could get a couple of voters to find him likable.

Yes. And then things got silly...

 

I can hear you. "Stop Brian; just stop. I was a good sport and watched about half of this ridiculousness. No way a Republican, dare I say a Republican, would advocate a Brit to be on the $10 bill."

Really?

What?? Come on y'all. Nearly half of you couldn't even answer the question! This is why you cannot miss even one entry on the Clear Counsel Legal Blog; the women of our firm provide three great answers to this inquiry a couple of months ago.

A few thoughts:

  1. Your wife? Jake should have followed up with "What if there are more Supreme Court vacancies than you have siblings, what then?"
  2. Interesting fact: Rosa Parks served on the board of planned parenthood.
  3. How did no one offer up "Hillary Clinton" as an answer?
  4. The LA Times said Jeb! only" insult[ed] every American woman who ever lived." No big.
  5. Of course, because Jeb! is always sorry, has already begun walking back his Thatcher claim.

The above exchange took place about 2.5 hours into the debate, when perhaps everyone, including your live-tweeting author, was getting a bit delirious. Of course, Jake had to raise the stakes and ask each candidate "what Secret Service code name would you assign" to yourself?

Huuuge Error Jake! This could have been television gold. Should have asked: "What secret service code should be assigned to President Trump?" Just imagine the look on Jeb!'s/Rand's/Carly's/Walker's face!

Of course, none of the answers were very interesting. However, thanks to the Washington Post, you at home can create your own secret service code name! Feel free to refer to me as "Bisharp" going forward.

 

Conclusions from the Republican Debate

Well, I guess we are done here.

Or are we?

For those unaware, Mr. Silver's statistical models of the previous 2 elections have been quite accurate. He went 50 for 50 in predicting results by state for Obama v. Romney.

To Mr. Silver, granted I am an amateur statistician at best, I would contend that none of the polls so far would meet his critera of "scientific." Most of the polls are of 500 or less folks, usually only done by landline phone (does anyone under 30 even have a landline anymore?), with a margin of error of more than 5% per poll. The fact that CNN/FOX used the polls to keep some candidates out of the prime-time debate, and leave the others with Gov. Pataki does not seem that reasonable. They could just be honest; America finds you four boring, and dagnabbit, this is a television show primarily8)What? It affects the foundations of our republic? Yeah but did you see that ratings?!. Mr. Graham was smart to quip it up in the happy hour affair, ensuring that he will be included in the next prime time get-together9)CNN changed the rules so Ms. Fiorina would be included, smartly for this Republican debate.

If Mr. Trump were winning only a couple of polls, I would be inclined to go with Mr. Silver, given his track record. But it is every poll, in every state. The establishment media, understandably, cannot fathom how this Trump thing is happening. If I may be of some assistance...

It is not that Mr. Trump is not offensive, does not gaffe at an even higher rate than the King of all Gaffes10)trademark pending, Uncle Joe. It is that the people that support Trump are tired of the empty platitudes. Your voters are smarter than you think they are!

Ms. Fiorina made a real astute11)a bit too astute for the establishment types, by my guess observation when discussing how the Democrats use the immigration issue. To paraphrase, she claimed that Democrats will never reform immigration because it is too good of an issue to win elections on. If resolved, why would working class folks care at all about what they have to say?

This is just as bad of an issue for my Republican friends! And, in my somewhat humble12)Ok fine, not very humble opinion, this is the crux as to why Trump is winning13)Yes, exactly like Charlie Sheen. Scroll up and check out that Drudge poll again. Add up the totals of "outsider"14)the lamestream media just means candidates that haven't been covering for more than 2 election cycles previous. More than 85% of that total are non-establishment candidates! Unfortunately for Mr. Trump's ego, his support is more likely a product of the distaste Republican primary voters have for their Washington representatives. Check these stats out:

I thought Republicans were conservative? That 60/36 split says the opposite.

Mr. Trump is easily the most liberal of the Republican bunch. I swear I heard him make the case for a progressive income tax last night16)I cannot confirm this, that whole debate may have taken place in my mind for all I know. AND THE VOTERS DON'T CARE. Perhaps our Republican friends cried wolf one too many times, but the polling makes it seem that your voters do not trust y'all anymore. Perhaps all those shutdown threats come at a price. And they have a chance to run the same shutdown sham again this fall! Will the national leadership learn? Will Jeb! beg them to stop? Does he even have any sway over the Congressional Republicans given his dismal numbers?

More importantly, the national Republicans need to be concerned with this:

I bet those 32% are much happier with the party than they were a year or two ago, but you won't win any national elections with 32% of the electorate. Assuming Trump does not win, the candidate will have a devil of time trying to ameliorate the harm caused to the moderate electorate opinion of the party 17)not to mention folks of color/women. One might contend that Trump is the logical conclusion of the decades-long national political strategy of "government is the problem," but that precipitous drop occurred in the past year, correlated with the rise of that old-school Dixiecrat fear-mongering.  Which is the opposite of Mr. Reagan's "big tent" philosophy by the way.

And you think our zeitgeist has moved into the hyper-real eh? You should see what's going on in China with the zombies.

 

You need even more debate coverage? I'm impressed with your fortitude!

Jeb Lund wrote a good piece for The Guardian.

David Frum provided some sober analysis for The Atlantic.

 

Ok fine, a few Trump faces for the road...

 

Footnotes

Footnotes
↑1 Yes, seriously, it was that long
↑2 and probably one or two you don't
↑3 We all know the best way to defeat a bully is with a bigger bully
↑4 #duh
↑5 What's that? Administering a business is different, bordering on irrelevant to being the leader of the free world? Sshhh, you are going to ruin all our fun. Do you want to be stuck watching Jeb! debate Mr. Walker's 3 boring talking points for the next 6 months? Good. Either do I.
↑6 I saw some of her recap of the debate, Ms. Kelly has handled Mr. Trump with class to her credit. Her post-game analysis was far superior to Mr. Hannity, who after sucking up to Mr. Walker with such hard hitting questions like "Isn't it hard to be on the stage with so many candidates; please feel free to recite your stump speech on my national tv show," brought on candidates that did not parrot his views on the Iran deal and badgered them
↑7 The Jeb "!" exclamation point leads to about as much fun as one can have with political syntax, by the way
↑8 What? It affects the foundations of our republic? Yeah but did you see that ratings?!
↑9 CNN changed the rules so Ms. Fiorina would be included, smartly for this Republican debate
↑10 trademark pending
↑11 a bit too astute for the establishment types, by my guess
↑12 Ok fine, not very humble
↑13 Yes, exactly like Charlie Sheen
↑14 the lamestream media just means candidates that haven't been covering for more than 2 election cycles previous
↑15 (Harry Enten
↑16 I cannot confirm this, that whole debate may have taken place in my mind for all I know
↑17 not to mention folks of color/women
General Interest / News / Politics - 09/17/2015
power of attorney, undue influence, probate, estate planning, A mother and her grown son

How Can Power of Attorney & Guardianship Help Me Care for My Elderly Parent?

 

What is the difference between Power of Attorney and Guardianship?

Transcript:

A client approached me today regarding issues he's having with his mother who was recently admitted to the hospital. She had mounting medical bills that needed to be paid. He was wondering if there was a way that he could get access to her bank account, her brokerage account, in order to pay those bills. There's 2 different ways that you can do it. One is by power of attorney.

Now fortunately this individual did have a power of attorney document prepared prior to her going into the hospital, being admitted to the hospital, and that's essentially mentally incapacitated. The power of attorney document allows the individual to access her account, allows them to use that money for her best interest, to pay those medical bills.

Now power of attorney documents need to be prepared prior to an individual becoming mentally incapacitated. Usually they'll be done when an individual knows who they want designated as their potential power of attorney, who they want designated as the agent, as well as potentially who they want designated as their guardian.

The documents are very simple and straightforward. Some people get a little intimidated by them because they are a legal document. However they're very simple and straightforward to prepare. If you were to come into our office we would be able to do them fairly quickly at a minimal expense for you.

They're great to set up now while you have your mental capacity, in order to have them valid when you do become mentally incapacitated. However, if this individual, if he didn't have the power of attorney document set up prior to his mother going to the hospital and becoming mentally incapacitated, he would have had to go through a longer and relatively more expensive process in guardianship.

Guardianship is where you petition the court to have the court appoint you or whoever it may be, another family member, as the guardian of the individual's estate and person. To be appointed as a guardian of the individual's estate means that you are now responsible for her finances, for her bank accounts, her home, making all her payments, whether it be for house payment or medical payments, medical bills that are due at the time.

To go through that process it takes considerable amount of time as well. It could take between 3 to 6 months in order to get yourself appointed to get that appointment from the court, the order allowing you to go into her accounts to do that. To become the guardian of her person means that you are now able to make her medical decisions, what type of treatment, or whether to essentially end her life if for some reason she was on life-sustaining support at the time.

Now all these decisions can be done prior in a power of attorney document. You get a durable power of attorney for financial decisions, as well as a power of attorney for health care decisions. These will all lay out exactly what the individual wants if they fall into that state, if they become mentally incapacitated, or if the health care, if they are on life support and need decisions of what they like to do if they want to essentially pull the plug.

Those are issues that are dealt with prior to them getting into that situation, so you know exactly what the person wants and there's no guessing. These are all items that we do here, whether it be power of attorney documents which can be done fairly quickly and inexpensively, or in the case if someone wasn't able to plan ahead and it was essentially an unforeseen event, they become incapacitated, they'd have the power of attorney documents and we need to set up a guardianship. That's also something we can take care of here.

 

Probate / Probate Videos - 09/16/2015
mental capacity, undue influence, ernie banks, Baseball Field

Mr. Cub’s Legacy, Mental Capacity, and Undue Influence

Hall of Famer Ernie Banks, “Mr. Cub,” played 19 seasons with the Chicago Cubs, averaging more than 30 home runs and 100 RBI per season. He played from 1953 to 1971 with the Chicago Cubs. Banks captured the National League MVP in 1958 and 1959. He was inducted into the National Baseball Hall of Fame in 1977 and named to Major League Baseball All-Century Team in 1999.

Ernie Banks was a world class athlete and regarded by many as one of the greatest baseball players of all time. A statue of Ernie Banks currently stands at the entrance of Wrigley Field.

His physical and mental strength is obvious from his many accomplishments. Unfortunately, his health deteriorated quickly at the end of his life. He was diagnosed with moderate to severe dementia and later died by a heart attack in January 2015. Yet his death was not accompanied by mourning and celebration of his lifelong accomplishments, but was entangled with a potential legal battle regarding his testamentary wishes.

Court records show that in 2008, Mr. Banks prepared a will and trust to distribute his assets or estate to his wife and three children. He also requested that his ashes to be scattered at Wrigley Field “when the wind is blowing out.” However, the source of controversy is predicated on a second will and trust that was prepared in 2014 that disinherits his wife and children and bequeaths the entire estate to his then caretaker, Regina Rice. According to Ms. Rice, Mr. Banks entrusted her to carry out his wishes and wanted to make sure his estranged wife did not share in his estate after he passed.

An individual has the right to bequeath his or her legally owned property to anyone he or she wishes. However, each state in the US has certain requirements that must be met in order for any testamentary document, such as a Last Will and Testament or a Trust, to validly transfer property from the decedent to the beneficiaries or heirs after passing. There are two issues that highlight the disputes between Ms. Rice and Mr. Bank’s family:

  1.  Did Mr. Banks have the mental capacity to change or alter his Testamentary documents in 2014?
  2.  Was Mr. Banks unduly influenced by his caregiver to change his documents for her benefit?

 

Mental Capacity

An individual must have his or her legal mental capacity in order for the testamentary documents to be valid after his or her passing. In Nevada, courts have held that for a person to be of sound mind while executing a will, a person must:

  1. Know what a will does;
  2. Know generally who are his heirs;
  3. Have a general understanding of his assets; and
  4. Decide how he wishes to distribute those assets after his death.

In this case, court filings indicated that Mr. Banks meet with a neuropsychologist at the University of Illinois Medical Center on October 14, 2014 and the evaluation “specified that Ernie exhibited significant cognitive impairment that indicated a presence of dementia of moderate to severe degree.” In the petition to contest the validity of Mr. Bank’s 2014 will, his family presented evidence that Mr. Banks' health, both physically and mentally, was deteriorating rapidly. In October, just prior to his visit to the University of Illinois, he fell at his home and was lying on the floor for several hours. He was taken to the hospital and later released to Ms. Rice under orders that he be constantly supervised.

However, the two witnesses to the will, employees of the attorney’s office that prepared the will, have indicated that Mr. Banks was lucid and was able to communicate his desires without assistance.

If Mr. Banks family can convince the court that the mental examination only weeks before the execution of the will is valid and performed under normal circumstances, Mr. Banks family will have a strong case to have the 2014 will deemed invalid.

 

Undue Influence

A will can likewise be declared invalid if the individual was influenced by someone who occupies a position of trust1)Caregiver or housekeeper for example that manipulates the vulnerable person to change his testamentary documents to benefit the caregiver or housekeeper.  In Nevada, when a will devises property to a person’s caregiver those transfers are presumed void. The basis is that a vulnerable person, elderly or mental incapacitated, relied on the caregiver and the caregiver used her position to coerce the vulnerable person into naming her as the beneficiary contrary to his true wishes. The caregiver must rebut this presumption with clear and convincing evidence that the gift of the property through the will was truly the wishes of the vulnerable person and not the product of undue influence.

Mr. Banks’ family has evidence to show that Mr. Banks was vulnerable to his then caregiver and that through her influence and position, she was able to coerce him into changing his will for her benefit. As the case stands, the caregiver has not presented any evidence to show anything to the contrary.

Mental diseases can occur at any time, regardless of age. If you believe your loved one has been unduly influenced or you simply want to ensure your estate planning is handled before it is too late, please do not hesitate to contact Clear Counsel Law Group for a free consultation.

Footnotes

Footnotes
↑1 Caregiver or housekeeper for example
Estate Planning / Probate - 09/15/2015
fantasy football, gaming, gambling, legal, las vegas

Is It Legal to Gamble on Fantasy Football?

Football season is back! I would just like to congratulate my fellow football fanatics for making through another tough, football-less offseason1)when will the silly Europeans learn how much better tackle football is and starting training their athletes to play so we have gridiron action all year round?. More importantly for some of us, it is fantasy football season!

How did your draft go? How do you draft Adrian Peterson without any idea how he will play2)gotta be better than my Montee Ball play from last year…here is a free tip from someone who has watched Broncos’ football since the Elway [We love you John!] days: Do not take a Broncos’ running back. Just trust me. There is just no way to predict who will get the carries this year.?

Regardless, I suspect that some of you may be playing fantasy football for cash prizes this year…

 

 

 

Since the sports gaming entities have yet to be finalized3)Stay tuned to the blog for more information. My contact says they should be here in a couple weeks, the only means for non-Nevadan folks to wager on sports, supposedly, is through fantasy leagues.

All of our loyal, intelligent readers are asking themselves now: How is it illegal to bet on football, but legal to wager on fantasy football? The answer is what you would expect: a combination of governmental favoritism, arbitrary demarcations, and a lack of political mettle to do the right thing4)And perhaps a good faith mistake.

Let’s get a little more in depth.

 

Fantasy Football and the Internet Gambling Prohibition and Enforcement Act

In 2006, our friends in the Congress decided that this unregulated internet poker nonsense needed to end5)And rightful so. In turn, the Congress passed the Internet Gambling Prohibition and Enforcement Act. Below is the pertinent part for our discussion:

`(6) The term `bets or wagers'--

`(D) does not include--

`(ix) participation in any fantasy or simulation sports game or educational game or contest in which (if the game or contest involves a team or teams) no fantasy or simulation sports team is based on the current membership of an actual team that is a member of an amateur or professional sports organization (as those terms are defined in section 3701 of title 28) and that meets the following conditions:

`(I) All prizes and awards offered to winning participants are established and made known to the participants in advance of the game or contest and their value is not determined by the number of participants or the amount of any fees paid by those participants.

`(II) All winning outcomes reflect the relative knowledge and skill of the participants and are determined predominantly by accumulated statistical results of the performance of individuals (athletes in the case of sports events) in multiple real-world sporting or other events.

`(III) No winning outcome is based--

`(aa) on the score, point-spread, or any performance or performances of any single real-world team or any combination of such teams; or

`(bb) solely on any single performance of an individual athlete in any single real-world sporting or other event.6)Source

 

Is your head spinning like mine is after reading that? I actually pulled that part of the law from the entry in the Logic Dictionary for “Distinction without a difference”7)This is an inaccurate statement.  We have hit that far-too-common crossroads8)That we seem to be crossing more and more these days where we are trying to determine if the law was just poorly written, or drafted  entirely in bad faith. Per usual, I cannot tell. Maybe our lovely congress-folk have not the slightest idea what sports gambling is9)If this is true, why are they writing laws about it?. We will just assume that is that case, because the alternative is much more cynical10)As in, legislators drawing arbitrary demarcations in the law at the behest of special interests. Am in the wrong? Read this NY Post article about the law.

In reference to `(II) above, how do they think sports betters operate? The old, throw a dart at a couple of team names on the board and bet on the punctured organization routine11)Granted this routine needs a catchier name? Every (as in, likely without much exception) serious handicapper considers the “accumulated statistical results of the performance of individuals” before making a sizable wager. Do the congress-folk think the serious betters just guess? They have to know better than that, right?

What about `(III)? This section, if I am to analyze this silliness in good faith, makes a bit more sense, if this law is supposed to be about preserving the integrity of the game and not regulating socially acceptable gambling. The thinking could be (all I can do is make my best guess at what they are going for, assuming good faith) that if the athletes are spread amongst multiple teams, impropriety is less likely to occur. Yet most fantasy teams have less players on them than the actual, real world teams the players work for. The larger the team, the less effect one individual has on the results. So this language is not all that logical either.

Also, most importantly, let us not get lost in the forest. This law is supposed to protect the public from internet gambling. How is the character of gambling any different if you bet on one team as opposed to a collection of players on multiple teams? This is the logical equivalent of legalizing heroin in pill form, but disallowing any derivation of the product that can be injected. Is the issue how the gambling/substance is consumed, or the consumption itself?12)Stay tuned for my post next week that will be done entirely in question form. Your move Ron Darling!

In reference to my point regarding the integrity of sport, former attorney13)Sorry Mike, if you are still in practice; though maybe he is like Paul Finebaum in that he pretends to have never practiced law. Mike Florio evaluates the bill correctly, in my eyes:

The hair-splitting and nonsensical distinction from Congress has made gambling on fantasy football as legal as gambling on stocks, which has spawned an industry that includes some very high-stakes fantasy leagues, some of which undoubtedly include NFL players.  But while it’s only a matter of time before word emerges of the involvement of NFL players in six-figure fantasy leagues, another potential complication could emerge when it comes to the non-gambling gambling of large amounts of money on fantasy football.

Peter King of TheMMQB.com explains that, during his training-camp tour, he has caught wind of “undue pressure some players and coaches feel from big-money fantasy-football players.”  Writes King, “I had one coach tell me there’s so much money in some of these fantasy-football playoff pools that people who used to gamble with bookies illegally are now gambling in high-stakes fantasy-football leagues, which is not illegal.” King adds that the “NFL has its antennae up over this, and it’ll be interesting to see if the pressure escalates to more serious threats on players or coaches.” 14)Source

 

Should this have been thought out more thoroughly? Likely yes. How can the NFL know if one of its players/coaches are playing in a high end fantasy league. Given the concerns above15)valid in my eyes, it is possible that legalizing only fantasy sports betting is much worse than leaving the general gambling prohibition in place.

It is also worth reminding folks that our sports books actually assist federal regulators in catching athlete’s point shaving, recall the Arizona St. scandal from the 1990s.

 

Will fantasy football gambling be legalized as part of a broader movement to legalize internet gambling?

We have trends going in both directions in regards to the question above; it is hard to speculate what will happen. Usually the rich and powerful are on one side of an issue, so it will be easy to see what will happen. There are movers and shakers on both sides of this debate, neither looking like they will give in.

Each side of the internet gambling debate are16)shockingly…don’t make me post that Casablanca clip again disingenuous in regards to the opposing views. On the one hand, the pro fantasy football  folks are making peculiar claims like fantasy football helps kids learn17)maybe more like fantasy football is a cheap/easy cop-out for teachers that are struggling to motivate their students. If your students are not engaged in world affairs, don’t you have some responsibility to show them why they should care? I cringe even writing that. Teaching is so,so difficult. Even still, ignoring the civics component of a public education is an error.

On the other side, Mr. Adelson’s friends against internet gaming18)no truth to the rumor that this was the initial name for the group are equally, if not more disingenuous19)and I say this as someone sympathetic to their views with such specious claims as “Internet gaming hurts union jobs”20)as we all know, union labor is a real passion of Mr. Adelson and “Internet gaming hurts farmers”21)Huh? I cannot even make a bad joke because the connection is so attenuated.

What can we conclude from all the name-calling? It will probably be a few years before internet gambling regulation is resolved at a federal level. Your best chance will be if the federal government becomes even more desperate for revenue than it currently is.

 

So is it safe to play fantasy football for money online?

This is not legal advice22)Note that this is a legal blog, not legal counsel. If you would like legal counsel on the issue, we have great attorneys here who will assist you. Just give us a call, more basic risk analysis. If it was me, and I was going to play fantasy football online, I would think very hard about what happened to the internet poker sites. If you recall, one day people of all ages23)Purposeful cliche were playing with the Caribbean-based sites, the next, they all got shut down. As you can read in the NPR article, all the folks with money in the accounts abroad had no access to get the money back, as all the property was seized. As you can deduce from the ambiguous text of the law above regarding fantasy football, is it conceivable that the DOJ could decide this fall that instead of going after online escort services24)They had quite the summer, they will direct their attention to fantasy football sites.

If you live in Nevada, this seems like an unnecessary risk as there are many companies that will allow you to wager, in-state, on football over the internet25)and unlike Wall Street, you will know the odds of your wager at the moment you make it. If you are out-of-state, it might be worth being patient for a few more weeks until the sports betting entities’ regulations are finalized by the Gaming Control Board. Coming this fall, you can wager with publicly traded companies (Las Vegas casinos) from throughout the country on football through a sports gaming entity. Pretty exciting stuff.

It is difficult enough to win at gambling, why gamble through a medium where there is also a risk that you will not get paid if you win? Think of it as an unnecessary parlay. One wonders if fantasy football gambling was legal in Nevada, why wouldn't the casinos want some of the action?

Either way, best of luck this year. And Go Broncos!

 

These are two really great academic journal pieces on the history of fantasy football26)Yes, academia seems to be going in a strange direction

Harvard's Journal of Sports and Entertainment Law

John Marshall Law School

 

Even more reading:

Forbes

RGJ

Politico

Washington Post

The Hill

 

Footnotes

Footnotes
↑1 when will the silly Europeans learn how much better tackle football is and starting training their athletes to play so we have gridiron action all year round?
↑2 gotta be better than my Montee Ball play from last year…here is a free tip from someone who has watched Broncos’ football since the Elway [We love you John!] days: Do not take a Broncos’ running back. Just trust me. There is just no way to predict who will get the carries this year.
↑3 Stay tuned to the blog for more information. My contact says they should be here in a couple weeks
↑4 And perhaps a good faith mistake
↑5 And rightful so
↑6 Source
↑7 This is an inaccurate statement
↑8 That we seem to be crossing more and more these days
↑9 If this is true, why are they writing laws about it?
↑10 As in, legislators drawing arbitrary demarcations in the law at the behest of special interests. Am in the wrong? Read this NY Post article about the law
↑11 Granted this routine needs a catchier name
↑12 Stay tuned for my post next week that will be done entirely in question form. Your move Ron Darling!
↑13 Sorry Mike, if you are still in practice; though maybe he is like Paul Finebaum in that he pretends to have never practiced law.
↑14 Source
↑15 valid in my eyes
↑16 shockingly…don’t make me post that Casablanca clip again
↑17 maybe more like fantasy football is a cheap/easy cop-out for teachers that are struggling to motivate their students. If your students are not engaged in world affairs, don’t you have some responsibility to show them why they should care? I cringe even writing that. Teaching is so,so difficult. Even still, ignoring the civics component of a public education is an error.
↑18 no truth to the rumor that this was the initial name for the group
↑19 and I say this as someone sympathetic to their views
↑20 as we all know, union labor is a real passion of Mr. Adelson
↑21 Huh? I cannot even make a bad joke because the connection is so attenuated
↑22 Note that this is a legal blog, not legal counsel. If you would like legal counsel on the issue, we have great attorneys here who will assist you. Just give us a call
↑23 Purposeful cliche
↑24 They had quite the summer
↑25 and unlike Wall Street, you will know the odds of your wager at the moment you make it
↑26 Yes, academia seems to be going in a strange direction
gaming / General Interest / Las Vegas / Nevada Law - 09/11/2015

Will Declaring Bankruptcy End the Harassing Creditor Phone Calls?

 

How Declaring Bankruptcy will help end the annoying phone calls from creditors:

Transcript

One of the first things that gets asked by clients when they come in and talk to me is, can I stop the annoying and harassing phone calls from all these creditors and will a bankruptcy stop these creditors from calling me? The answer is yes. The moment we file for bankruptcy, a law called the automatic stay goes into effect. Think of the automatic stay like a big collections freeze. It applies to virtually any and all creditors seeking to engage in any type of collection activity. That includes phone calls. Now there are certain circumstances in which the automatic stay may not go into effect. If, for example, you have a couple of recent bankruptcies that you filed earlier in the year that were unsuccessful and were dismissed, in those situations the automatic stay won't go into effect. If you have one previous dismissal, the automatic stay will expire after 30 days. You want to be very careful that you're aware of the limitations of the automatic stay.

Another situation where the automatic stay may come up a little bit short is in certain situations, creditors can ask for relief from the automatic stay where they essentially file a motion with the bankruptcy court and ask the bankruptcy court for permission to engage in collection activities against you. These situations are usually limited to secured creditors such as a mortgage company or a car company that has a loan in your name, and you haven't been making the payments on that loan. From a practical standpoint, if we're just talking about phone calls and stopping them, the automatic stay goes into effect immediately upon filing a bankruptcy, but the notice of the bankruptcy doesn't get sent out to these creditors until a few days have past. When we file your bankruptcy, we have a big list of your creditors along with their addresses. Then the bankruptcy court mails out notices of your bankruptcy filing to these creditors. The mailing may take a few days to get to these creditors and for them to update their systems before they actually are aware that you have actually filed for bankruptcy.

Now if the phone calls are annoying, and you want them to cease immediately, there's definitely the opportunity to tell these creditors that you've filed for bankruptcy, provide them with your bankruptcy case number, give them your attorney's contact information and let them know that they are not allowed to contact you directly. This should be sufficient to get the phone calls to stop. If for whatever reason that doesn't stop the phone calls, involve your attorney. Have your attorney make the phone call directly to these creditors. That's usually enough then to get their attention and get them to stop. If all of this fails and for whatever reason there's a creditor that's not willing to honor and comply with the federal law of the automatic stay, you have the option of asking the bankruptcy court to issue sanctions against a creditor who is particularly unruly and unwilling to follow the federal law.

I suggest that you consult with a bankruptcy attorney that has experience in these issues and that is familiar with your protections that are available to you by filing for bankruptcy. Your attorney will make sure that you get the very protection that's available under the law.

Bankruptcy / Bankruptcy Videos - 09/09/2015
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