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Will Bankruptcy Assist You With Back Taxes?

 

 

Transcript:

Hi, Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. Today, we’re going to be talking about back taxes and your ability to get rid of those taxes through the filing of a bankruptcy case.

Now, just generally speaking, it is possible in some circumstances to get rid of taxes by filing a bankruptcy case. Generally speaking, to make the taxes dischargeable, taxes need to be older than three years.

You have to have filed a tax return for that tax year more than two years before filing your bankruptcy case, and there cannot have been any reassessments in the last 240 days.

In other words, the IRS can't obtain any new information where they go in and recalculate the tax liability.

 

A Back Taxes Horror Story

There's a specific story that I really want to tell right now about a guy that I met with recently, and he was pretty wealthy but boy, was he in a mess in terms of the amount of taxes that he owed. He made a very healthy living and he came in after having done a consultation with a tax attorney, but his meeting with the tax attorney didn't quite sit right with him.

It felt like he needed more information, so he decided to come and meet with a bankruptcy attorney, and I was glad to sit down with him, had a free consultation and help him out in terms of providing him advice for his specific situation.

Now, he had indeed received some bad advice from his tax attorney. His tax attorney, because the tax debt was not quite three years old, and as we just discussed, that's a requirement to be able to discharge it in a bankruptcy, because this tax debt wasn't quite three years old, the tax attorney proposed filing an offer and compromise, think of it like a settlement offer with the IRS, to essentially keep the IRS off his back until three years had passed, and he could theoretically file for bankruptcy and then discharge the debt at that time.

Unfortunately, what the tax attorney didn't quite understand about bankruptcy law is the three-year requirement when discharging taxes, there's a specific part of this law that says that if you file a bankruptcy or you file an offer and compromise, it's essentially like pushing the Pause button on the running of the clock.

 

back taxes

 

Why You Specifically Need a Bankruptcy Lawyer

By the filing of this offer and compromise with the IRS, by negotiating with the IRS in this manner, it pushed Pause on the clock and the three years isn't going to come to fruition unless he's outside of this offer and compromise scenario.

The strategy to get to that three-year period, to be able to satisfy this requirement, isn't going to work by submitting an offer and compromise to the IRS.

The second big mistake that wasn't considered by the tax attorney in this situation was this individual made a very healthy living, and based upon his income levels, he almost certainly would not have qualified for Chapter 7 bankruptcy due to the means test, which means he'd be looking at filing a Chapter 13 bankruptcy.

In the Chapter 13 bankruptcy scenario, his plan payments would be based in part upon his income levels, and his income was at such a level to where he would probably have to pay back all types of creditors.

Even if assuming that we could get to that three-year requirement and then file for bankruptcy, he'd have to file a Chapter 13 bankruptcy, but the three-year requirement would make the taxes change in the type of debt that they're classified as.

Where they were once a priority debt that would have to be paid back within the Chapter 13 plan, they would now be considered a general unsecured creditor similar to a credit card or medical debt, but even the unsecured creditors in this individual's Chapter 13 plan would likely receive payment in full during the course of the bankruptcy.

Waiting the three years does him no good. Filing for bankruptcy, he's going to pay them back in full one way or the other, and so really he received two pieces of bad advice by meeting with an individual, even an attorney who was well versed in tax law but didn't quite fully grasp how the taxes and the tax liability would apply in a bankruptcy situation.

 

Each of These Cases Are Very Fact-Specific; Please Come in for the Free Consultation

It's a very fact-specific analysis that needs to be gone through, and what I would strongly recommend is if you have any back tax issues, please come and speak with a debt expert, somebody who is experienced in dealing with these types of issues inside the bankruptcy process.

You have no reason not to come in and get a free consultation and get the information to be fully informed, and to make the best decision possible for you.

Again, my name's Matt McArthur, Clear Counsel Law Group. I look forward to hearing from you soon if you're facing any of these types of issues.

 

Will Nevada Appoint an Administrator to Your Estate?

 

Transcript:

Hi, good afternoon, my name is Jonathan Barlow. I'm a probate attorney at Clear Counsel Law Group. There was a recent very famous case that has just recently come up due to the death of Prince in Minnesota, the famous musician Prince.

When he died, it turns out that no one could find a will which was a pretty shocking result for somebody who was extremely wealthy and extremely well-to-do that he had not apparently done any estate planning, not even a basic and simple will.

The question's been asked of me, what happens in that situation? What happens in the Valley in that situation?

 

What Happened in Minnesota

First let's take a look at what happened in Minnesota. The sister of Prince filed a petition or a request with the probate court there asking that she'd be appointed as what is called the special administrator, somebody with court authority to handle Prince's estate, gather his assets, start getting their arms around what's happening with the estate.

It turns out that for whatever reason though, the Minnesota court appointed a third party independent trust company to fulfill that role, to act as the special administrator rather than the family member.

The question is, can that also happen in Nevada? Could a third party administrator or a third party company be appointed and inserted into the estate to handle the estate in place of the family member?

 

Will Nevada Appoint a Special Administrator?

The short answer to that is yes, that can happen. However, it's important to note that family in Nevada, the family members of the deceased have the priority or the highest entitlement to serve as that administrator after somebody dies.

The Nevada Statutes are drafted to give the closest next of kin the highest and first right to request to be named as the administrator of the estate with authority to take care of the estate. There's a preference and priority for the family.

However, there are certain times when either the family doesn't come forward to do that or the situation is simply not appropriate to have a family member fulfill that role and that position as the administrator.

 

administrator

 

Those situations could be where there's a conflict of interest between the administrator and the estate, or the family member and the estate, excuse me, or there's allegations that that family member has participated in some form of wrongdoing against the estate or the decedent or that they would not be able to fulfill the job appropriately or that they wouldn't know what they're doing basically.

Basically some reason that it would not be appropriate to have that family member who otherwise has the highest priority to be in that position to serve.

When that happens, yes, it is possible that a Nevada court, the probate judge here can appoint a third party neutral company or individual to serve as the administrator of the estate.

 

The Two Types of Nevada Administrator

That could be usually one of two people or one of two options. There are professional companies, usually they're called trust companies, that can be appointed to serve as the administrator of the estate.

There doesn't necessarily have to be a trust involved in order to serve that position. These are companies, it's their job and profession to handle estates and deal with those matters.

Uniquely in Nevada, we have an elected official called the public administrator and it's his job as a publicly elected official to serve as the administrator of estates when there's not a family member or when there's otherwise a reason to throw it out to a third party independent party to serve in that position.

Those are usually the two ways that we see that go out to a third party to handle the administration either to a private trust company or to the public administrator in his office. Now, that begs the question of course, how does the third party become inserted into this situation?

Usually, it's very rare that the third party itself would come forward and say, "Hey, here we are. We want to insert ourselves here into this situation."

Usually that comes one of two ways where the third party gets appointed.

 

How a Special Administrator is Appointed

One of the other family members could come forward and say, "Hey listen, my sister has requested appointment, but I don't think it's appropriate for her to serve for whatever reason.

She doesn't know what she's doing. It would be a conflict of interest," one of those things that we talked about earlier, "and so, court, would you please appoint a third party neutral administrator? That's really what we need." Somebody in the family could request the appointment of a third party.

Also, interestingly though, and we see this frequently especially here in Clark County with the probate judge here in Clark County, the judge on his own, acting on his own accord could look at the situation and say, "You know what? There's nobody in the family appropriate to do this. They're fighting. It's a disaster.

It would be inappropriate for this situation of the estate to have them, so I on my own accord am going to appoint a third party," whether that's the third party trust company or the public administrator's office. The judge on his own could throw that out and have it be appointed to a third party to do that situation.

 

Will a Special Administrator Only Be Appointed for Large Estates?

Now the question is, does this only happen when it's a really large estate like Prince in Minnesota? Prince is obviously very wealthy, has a lot of intellectual property rights, a lot of things that need to be protected.

The answer is no.

I've seen this happen with estates of all sizes, from very, very small estates, less than a hundred thousand dollars where the family members can't agree, where there's disputes, and the public administrator usually with those smaller ones will become involved through the court appointing the public administrator.

Of course, it can go all the way up to very, very large estates.

The answer is no, it could happen with any size of estate, any amount of assets that we're dealing with, any time that there's a dispute or otherwise non-appropriate situation to appoint a family member, we're going to usually see a third party become appointed as the administrator of the estate.

If you have concerns about this and you think that it might be appropriate in your situation to have a third party become involved and want to know how that happens or you've had a third party appointed and you're not happy with that situation, these are questions that I have a lot of experience with.

Our attorneys here in the office can help you walk through those questions, those issues, and try to find a resolution to it, so give us a call here at Clear Counsel. For more information about these issues, I encourage you to check out our blog at clearcounsel.com, and we'll be happy to answer any questions you might have.

 

Nevada election

A Not-Very-Modest Proposal to Fix Nevada Election Problems

Insanity: Doing the same thing over and over again and expecting different results.

-Albert Einstein

 

(Editors note: the piece has been reformatted for better accessibility-6/2/2016)

 

If We Change Nevada Election Laws, What Should They Be?

Good news! The answer isn't all that complicated, and we don't have to start from scratch.

We clearly (given that Nevada has been a state for 150 years and still cannot host an election) don't have (or desire to spend) the resources to adequately (some might contend "Constitutionally") administer elections. This is important to acknowledge.

If learned anything from the state convention, it is that the people working for the Nevada Democratic Party cannot administer an unbiased primary.1)It wasn't just the convention; I have talked with multiple voters that told me their Caucus wasn't not administered properly. I caucused up in Anthem (with Sen. Reid in the building, though in a different precinct), and I personally witnessed at least three caucuses run improperly (as in, not according to the party's rules. Worse, I saw caucuses run by the same precinct chair, administered differently [I guess if you wanted to be in a caucus that followed party rules, it was luck of the draw] in the same gymnasium). If the party doesn't administer the caucus correctly with the Godfather in the building, I have no reason to think any Caucus meeting was completed in the proper order. If the people working for the NV Dems are so passionate about Hillary Clinton (nothing wrong with that) that they could not administer a caucus fairly, they should have asked someone else to do it. Updating the rules, on the fly, the meet the needs of their preferred candidate, is just not good enough. Our friends in the Nevada GOP have their own legitimacy issues. Do a little reading about the 2012 race; the google can help.

For the reasons discussed above, legitimate ruling authority is more important than any other single issue the legislature will address next session. If the people in office were not put there by legitimate means, no subsequent action taken by these officials will be seen as legitimate.2)Keep going down the logic tree, or read about the ongoing coup in Brazil if you want a real world exampleThis speaks to the very essence of our society.

If we were going to a Rawslian3)I just mean starting from a "state of nature," as in the famous thought experiment where you would design a system of justice from scratch, perhaps with equal outcomes. experiment here, perhaps I would propose something far more radical4)Imagine if our elections were community meetings of say a couple dozen people that had a fruitful discussion before each individual declared her preference. Or if the complex issues of the day got the debate they deserve. Or if the elected officials entrusted to make tough decisions aren't permitted to leave the room before action has been taken, etc..

But we don't need to "revolutionize" the Nevada election process. Our 9th Circuit neighbors to the north have done most of the legwork for us. Up in Oregon, they have enacted (and tested) vote-by-mail laws. 30 years later, the results from their experiment are extraordinary! (wait until you see their voter participation numbers). Let me quote the Oregon Secretary of State to explain the process:

 

Registered voters receive a ballot two to three weeks before an election, giving time to research issues or candidates.

Voters also receive an official ballot to complete and insert into the security envelope which is placed in the ballot return envelope and signed by the voter. The ballot return envelope can be stamped and mailed or dropped off at any official drop box across the state. If a voter casts their ballot after the Wednesday before an election, the ballot should be left at a drop box site to ensure it's counted.

Ballots must be received by 8 p.m. on Election Day.

 

Better than that? The same process applies for the primary! Problem solved!

Just in case the benefits don't jump off your mobile device at you, allow me to list the first ten I could think of:

  1. No More Long lines: In a state where folks work around the clock, having folks stand in line for hours to vote is terrible for our economy. Just think of all the waste from the February caucus.
  2. No More Voter Intimidation: There have been complaints5)I'm not speaking to their veracity that certain voters, from both parties, feel intimidated.6)I recall seeing pictures on State Sen. Aaron Ford's account of voter intimidation that will infuriate any good Nevadan. Being able to express your voter preference is a fundamental tenant of American life and should be protected. This is the best means to do so.
  3. Improved Fairness for Our Senior Citizens: The first concerns listed above are particularly acute for our area seniors. Allowing folks to vote from home at their own convenience is an idea I believe most of our senior citizens would support.
  4. Improved Fairness for Casino Workers: If you haven't worked in the casino industry, the shifts constantly are in flux (until you have tenure) and it is difficult to plan for anything too far in the future. Under the caucus system, people only have a 2 hour window to express their preference. Saturday is a busy day in the casino industry, and most of the Valley's casino shifts include working on Saturday. Casino workers are the true foundation of our economy here, and we should be doing everything possible to make it easy for them to vote. I'm sure the Casino owners do not want to continue to pay their workers during the caucus either. Let casino workers vote when they can.
  5. Potential for a Significant Voter Turnout: In 2012, 2/3rd's of the country didn't vote. This is a huge problem for a number of reasons. 10% of registered democrats in the state voted in this year's caucus. This is a civic failure of which we could blame any number of institutions, but now is not the time for distractions. The more cynical folks in the media like to use these stats to make unfavorable conclusions about Americans generally. Me? I think most Americans are willing to participate, they just don't have 6 hours to dedicate to the process with families, work and other obligations. Don't believe me? With a vote-by-mail option, More than 70% of Oregon residents voted in the 2014 midterm.
  6. More Honest Political Parties: Closed primaries don't make sense in Nevada where as much as 1/3 of the voters do not want to be apart of either major political party. An open, vote-by-mail primary allows every citizen to have an equal voice in the process. Once the major parties have competition, they will be forced (as much as they can be) to meet the will of the voters. My conservative readers have to be in favor of more competition..
  7. People Will Feel Invested in Their Community: When 2/3rds of the country didn't vote, these folks can just turn around and blame the other 1/3 without having to take any responsibility. We want our citizens to have skin in the game, to care about the results. I suspect that there are many people with the civic spirit in Nevada that want to participate and be a part of the process, but they are disincentivized by the impropriety of the process (even just the look of it). A more engaged citizenry will lead to a better Nevada, no question about it.7)There will be growing pains, but that's ok!
  8. Fairness for Non-Partisan Voters: Did you know the fastest growing voter demographic in Nevada is non-partisan voter? Shouldn't folks with independent streaks/non uniform political opinions be allowed to participate in the primary? Wouldn't the result likely be a candidate that more of the country actually likes?8)Note, Nevada currently uses a closed primary system to exclude non-partisans from the process. This can be easily fixed.
  9. Lower Cost: Think about the cost of running an election for a moment: supplies, personnel, rent for polling locations, plus the opportunity cost of having public officials not completing their regular business. Then add on early voting! Know also that the ballot drop boxes around the state (under Oregon law) don't need to be supervised (like a mail box). Also, in terms of added cost, we already send out a voter guide! Why not just include the ballot as well?
  10. A Better Government: Our government, like the rest of life, is a product of what we put in. A more engaged/inspired voting public will produce a more engaged/inspired government. When in life have you received something worthwhile that didn't take serious effort to produce? It's time to stop pretending our government is any different.

 

In case any of the members of our fine Nevada Assembly come across this discussion, I have included the Oregon statutes below for your perusal. Additionally, I included Oregon voting statistics, which alone should be enough to get you to consider this idea.

I would be the first to concede that my proposal is, by no means, modest. But for the listed reasons above, I ask the citizens of Nevada to take it under serious consideration.

We do not have to pick insanity. Our democracy is a beautiful thing. It's time to reinvest.

 

How We Got Here

By now, you've heard at least a little bit about what happened at the Nevada Democratic Party State Convention from the Paris Hotel. Frankly, I'd be impressed if you haven't.

If you missed all the fun, this Maddow segment sums up the Nevada election fun.

 

The look on Ralston's face is priceless.9)How's that #fallofTrump hashtag going by the way?

Here's a litany of "thinkpieces"10)How long does someone need to think about something before a "reaction" becomes a "thinkpeice"? from the Convention, if it's a recap you are after: NY Times CNN  Commentary Medium Salon Statement from Lucy Flores

I am less interested in what occurred last weekend, but much more concerned about what we should do going forward. As I wish more people were.

But how much does what happened last weekend matter? If the Nevada Democratic Party followed their own convention rules, Hillary would have won 13-12. With the new, updated11)to account for Bernie's supporters winning too many delegates at the county conventionsconvention rules, Hillary won 15-10.

That's right, all of this is about two delegates. Yes, every delegate counts. And Hillary is currently 274 delegates ahead of Bernie. For those of you not math inclined, we are talking about less than 1% of the total delegates. Unless Bernie wins at least 70% of the California vote, Hillary is going to win the primary.

As we keep calling each other names, please keep that in mind.

One last point regarding the Convention..

https://twitter.com/karpmj/status/733719356249628673

 

I, for one, would appreciate it if the national media stops reporting false facts to make Nevadans look bad. As far as I can tell, no Nevadan threw anything at anyone.

As for the disgusting harassment of Roberta Lange, no one has proven anyone from Nevada had anything to do with that either. Over on Jezebel, Anna Merlan wrote a great piece where she called up a few of these harassers and asked them to explain themselves. It's worth reading in full. Of the three harassers she spoke to, none was from here.12)For all I know, these jerks all work for David Brock..I kid David, I'm sure he doesn't do stuff like this anymore..

 

Now That We Got That Silliness Out of the Way, Onto Important Business

That is, that our primary (at the very least) has the appearance of impropriety. And that is a huge problem.

Yet, it is important to acknowledge that administration of a legitimate election is not a Nevada-specific issue. In fact, this is a problem in many13)but not all...stay tuned states in the union.

But how bad are things across the country?

http://www.esquire.com/news-politics/politics/news/a43311/war-on-voting/

Well, Charles Pierce had to write about it without cursing, so yes, pretty serious. In that piece, he aggregates voting issues in North Carolina, Wisconsin, and Alaska. Anyone else see a common theme across jurisdictions making it more difficult to vote?14)George W. Bush's politics/results showed that conservative values can easily win on the merits; there's absolutely no need/value for these laws.

We could continue to complain on social media, write terse letters to the editor, and create (less than mature) vines to express our displeasure, or we could Make a Change.

 

Why This Matters

In my humble opinion, this matters as much as anything we've written about on the Clear Counsel Legal Blog. We are talking about the fundamentals of our democracy here, the essence of our social contract. Allow me a moment to take a step back so we can get a little perspective.

When the uproar in Tunisia began in the end of 2010, I speculated15)#humblebrag...you'll just have to believe me. Also, there were many a folk that said the same thing that it was very possible for the unrest to spread to the other neighboring countries. Why?16)I apologize for the Darling-esq rhetorical question

The conditions that acted as a catalyst in Tunisia were present across the Middle East17)Not the murder of the fruit vendor, but that the government was not chosen by the people but imposed on the people, and not the surprisingly, the unrest spread beyond Tunisia's borders18)I'm going to put a pin in the discussion of the Arab Spring for now. Yes, I am aware of that there are many, many variables at play, and I am not omniscient. If you want more information about the Arab Spring, the Google can help.

That condition I speak of? The lack of legitimate authority over the citizens by the autocratic governments in question. This is incredibly important.

Beginning with the American Constitution of the 18th Century, peoples of the Western World declared that we (collectively) have the right to live by self-determination through self-governance. Europeans/fellow Americans followed suit over the next 200 years to the extent that now most Western societies consider governments that were not popularly elected as illegitimate19)I am fully aware of the happens of Brazil...We should let that play out before drawing conclusions. Certainly, it's concerning.

The brilliance of our American experiment is that we,

1. Established a repeatable means to determine whom should lead us, and

2. Instituted an invaluable20)literally, try to put a price on this method for the peaceful transition of power.

Let's reflect why this is important. Before 1776, Every person in the world was born into a society in which s/he had no voice/power to make a change. Political transitions before the Great American Compromise were, in essence, a storming (then subsequent re-storming) of the Bastille. The peasants of this era (and before) had no means to express their displeasure, except a good storming.

Imagine, if instead of having an election every 4 years, there was a violent conflict for power? Sounds awful, right? There's real value in our political development over the past 200 years.

Good. We start here.21)Unfortunately, this is where most of the analysis I have seen stops. We seem to have hundreds of people ready/able/willing to disseminate an opinion, less that want to try to address the issues in question.

In reference to the Einstein quote to open the piece, if we don't make serious changes to the Nevada election laws, there is no reason to think all of this chaos won't happen again in 2018, 2020, 20204..

It doesn't have to be that way!

 

Thanks for reading.

Click to access 246.pdf

 

 

Click to access 251.pdf

Click to access Voter-Turnout-History-Primary.pdf

Click to access Voter_Turnout_History_General_Election.pdf

 

 

 

Footnotes

Footnotes
1 It wasn't just the convention; I have talked with multiple voters that told me their Caucus wasn't not administered properly. I caucused up in Anthem (with Sen. Reid in the building, though in a different precinct), and I personally witnessed at least three caucuses run improperly (as in, not according to the party's rules. Worse, I saw caucuses run by the same precinct chair, administered differently [I guess if you wanted to be in a caucus that followed party rules, it was luck of the draw] in the same gymnasium). If the party doesn't administer the caucus correctly with the Godfather in the building, I have no reason to think any Caucus meeting was completed in the proper order. If the people working for the NV Dems are so passionate about Hillary Clinton (nothing wrong with that) that they could not administer a caucus fairly, they should have asked someone else to do it. Updating the rules, on the fly, the meet the needs of their preferred candidate, is just not good enough. Our friends in the Nevada GOP have their own legitimacy issues. Do a little reading about the 2012 race; the google can help.
2 Keep going down the logic tree, or read about the ongoing coup in Brazil if you want a real world example
3 I just mean starting from a "state of nature," as in the famous thought experiment where you would design a system of justice from scratch, perhaps with equal outcomes.
4 Imagine if our elections were community meetings of say a couple dozen people that had a fruitful discussion before each individual declared her preference. Or if the complex issues of the day got the debate they deserve. Or if the elected officials entrusted to make tough decisions aren't permitted to leave the room before action has been taken, etc.
5 I'm not speaking to their veracity
6 I recall seeing pictures on State Sen. Aaron Ford's account of voter intimidation that will infuriate any good Nevadan
7 There will be growing pains, but that's ok!
8 Note, Nevada currently uses a closed primary system to exclude non-partisans from the process. This can be easily fixed.
9 How's that #fallofTrump hashtag going by the way?
10 How long does someone need to think about something before a "reaction" becomes a "thinkpeice"?
11 to account for Bernie's supporters winning too many delegates at the county conventions
12 For all I know, these jerks all work for David Brock..I kid David, I'm sure he doesn't do stuff like this anymore..
13 but not all...stay tuned
14 George W. Bush's politics/results showed that conservative values can easily win on the merits; there's absolutely no need/value for these laws.
15 #humblebrag...you'll just have to believe me. Also, there were many a folk that said the same thing
16 I apologize for the Darling-esq rhetorical question
17 Not the murder of the fruit vendor, but that the government was not chosen by the people but imposed on the people
18 I'm going to put a pin in the discussion of the Arab Spring for now. Yes, I am aware of that there are many, many variables at play, and I am not omniscient. If you want more information about the Arab Spring, the Google can help
19 I am fully aware of the happens of Brazil...We should let that play out before drawing conclusions. Certainly, it's concerning.
20 literally, try to put a price on this
21 Unfortunately, this is where most of the analysis I have seen stops. We seem to have hundreds of people ready/able/willing to disseminate an opinion, less that want to try to address the issues in question

Disclose All of Your Creditors to Your Bankruptcy Lawyer

 

 

 

Transcript:

Hi. Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. Today, we're going to be talking about creditors, and the need to disclose, or list, or inform, or give notice to creditors in the bankruptcy context. First, I want to start today's discussion by discussing a little bit about attorney-client confidentiality.

 

As Your Lawyer, Your Communications With Me Regarding Creditors is Confidential

There's been some issues with clients not being entirely comfortable telling their attorney all of the facts, or giving your attorney all of the information. Please, be rest assured, that I am on your side as your attorney, and in order to be able to help you to the fullest extent of the law, I need all the information.

If I don't have all the information, it limits my ability to help you, and move forward, and improve your financial situation.

Aside from the fact that I'm on your team, and you want your attorney to have all the information to be able to best help you, there's a couple of practical reasons why you want to disclose all of your creditors to your attorney, and to the bankruptcy court.

 

You Are Legally Required to Disclose All of Your Creditors

First and foremost, the law requires it. When you file your bankruptcy case, you will compile a list of all of your creditors, with all of their addresses, the amounts owed, account information, other identifying features of the loan, or the debt, that will give the court notice of who you owe the money to. The court will also send out a notice to all of your creditors, informing them of the bankruptcy.

When we submit these documents, with this list of creditors, we're submitting it under the penalty of perjury.

 

creditors

 

That's the same type of penalty that would apply when you are testifying under oath in court. If you don't tell the truth, and you're intentionally misleading the court, that can result in subjecting you to potential federal criminal liability that carry criminal penalties, and that is the last thing that we want.

It's very important to make sure that if you know about a creditor, that you're including them in your bankruptcy documents, and including them in the process.

 

A Practical Reason to Disclose All of Your Creditors

Aside from that, there's an additional reason that you would want to include all your creditors, and it's to make sure that they get off your case. We don't want them bugging you, and harassing you, and sending out the notice of bankruptcy will put them on notice that hey, this person is filing for bankruptcy.

They're untouchable right now. Once you receive that discharge, you'll remain untouchable, assuming that that debt has been discharged my something called the discharge injunction, which prevents them from contacting you or trying to collect on this debt after the successful completion of your bankruptcy case.

Leaving creditors out is not a good idea, because one, it's against the law, and it can subject you to criminal penalties, and two, from a practical standpoint, it's not going to help you fully improve your financial situation, so please, when you're consulting with me as your attorney, please tell me about all of your debts.

We'll discuss the ramifications of each of those debts as it applies to your situation moving forward, and how this whole bankruptcy process will play out for you.

I'll give you this information free of charge, in a free consultation. It doesn't hurt to come in and ask the questions, so that you know exactly how to move forward.

I'm Matt McArthur at Clear Counsel Law Group, head of the bankruptcy department here.

Please come in and visit me, and we'll get you started.

 

Home Liens and Bankruptcy: What You Need to Know

 

 

Transcript:

Hi, Matt McArthur bankruptcy attorney, Clear Counsel Law Group.

Today I want to discuss liens, and the ability that we have inside of a bankruptcy case to be able to address liens that have been attached to property.

The first and foremost question is can we remove liens that have attached to property inside of a bankruptcy, and the answer varies.

It depends upon the type of lien and the situation and the type of bankruptcy case that you're doing. In some cases, yes; in most cases, probably no.

 

Liens That May Be Removed: Car Loans

Typically speaking, a bankruptcy discharge, in and of itself, is not sufficient to remove a lien from someone's property.

One example of this might be a car loan where we file for bankruptcy and the bankruptcy discharge removes that person's personal obligation to pay on the car loan.

What that means is, the car lender can no longer go the person and forcibly collect from them. They can't garnish their wages.

 

liens

 

They can't levy their bank accounts to collect on that loan, but what the bankruptcy discharge did not remove is the lien that the car lender had on the car, so the car lender's lien remains in place. They can still repossess the vehicle after filing bankruptcy if payments aren't being made.

 

I Will Explain a Lien Strip

A classic example of a situation where we can deal with a lien is what we call a lien strip in a Chapter 13 bankruptcy.

These used to be extremely common when the housing market was depressed and after a lot of people had taken out second mortgages to cash in on the equity that they had found in their homes before the crash, and then after the crash all of a sudden they were left with a house that was worth a lot less than what they owed.

In a Chapter 13 bankruptcy, the law allows you to get rid of a second mortgage if certain conditions are met, and those conditions are if the house is worth less than what the first mortgage is owed.

If, for example, you had a house, and it was worth $200,000, and the first mortgage you still owed $220,000 on, and you had a second mortgage of whatever amount you could come up with.

It could be $1. It could be a $500,000 second mortgage. It doesn't matter the amount. As long as that first mortgage company is still owed more than what the house is worth, we can do a lien strip.

The lien strip, like its name suggests, is stripping off that second mortgage from being associated with the house or removing it from any connection with the house.

 

How Your Situation Will Be Improved After a Lien Strip

Once we've been able to get court approval to do a lien strip, we've established that the house is worth less than what the first mortgage is owed and the court enters an order approving our motion establishing that that is the case, that second mortgage in the bankruptcy is treated as a general unsecured creditor, the same way that a credit card company would be treated, the same way as a medical debt would be treated.

They no longer have those special rights that attach to the house, and their lien is removed. Following the successful completion of your case in a Chapter 13 bankruptcy and when you receive that discharge, that second mortgage is completely gone, completely resolved within the bankruptcy, and you only have to worry about keeping the first mortgage company happy and paid, moving forward after completion of your bankruptcy case.

That's just one example of our ability to deal with liens inside of a bankruptcy. If you have any questions about your situation, please come in and see me.

Consultations are free.

We offer the ability to come in and meet with an attorney, an experienced attorney, me, and I can give you the advice tailored to your specific situation and give you all the information you need to make an informed decision about how to best move forward to improve your financial situation.

I hope to hear from you soon. I'm Matt McArthur at Clear Counsel, the bankruptcy attorney.

Hope to hear from you soon.

 

The Waiting Period Before Filing for Bankruptcy Again

 

 

 

Transcript:

Hi. I'm Matt McArthur, bankruptcy attorney at Clear Council Law Group. Today, I want to discuss the waiting times between different chapters of bankruptcy. If you filed for bankruptcy in the past, are you able to file again, and if so, how long do you have to wait?

This answer varies, depending upon the facts of your particular situation. If you've filed for bankruptcy before, there is going to be a waiting period between when you can file again, if your first case, or your previous case was successfully completed, and you received a discharge.

If you didn't receive a discharge, and your case was dismissed, then, there's no waiting periods.

 

The Waiting Period Depends Upon Which Chapter You Filed Under Previously

For an individual that has filed for chapter 7 bankruptcy, and is looking to file for chapter 7 bankruptcy again, it's 8 years between filing dates. For an individual that's filed 13 the first time, and is looking to file for 13 again, the waiting period is 2 years between the filing dates.

If you're mixing and matching chapters, from 7 to 13, or 13 to 7, the waiting period can be 4 or 6 years, depending. This is a bit of a tricky issue to figure out, if you're not sure exactly where you stand.

One of the most common questions that I get, or uncertainties that I come across with people coming in for a free consultation is, I'll ask them if they've ever filed bankruptcy before, and if so, when? Many people aren't sure. It's been years.

Quite frankly, it's something that they wanted to put out of their minds, or it's been so long that they just simply don't remember.

waiting period bankruptcy, debt, las vegas, nevada Copyright: badboo / 123RF Stock Photo

 

If You Do Not Remember When You Previously Filed, I Can Help

I have a way of looking up the exact date. If you're uncertain about when you filed for bankruptcy, please come in and see me.

I can help you figure out the exact date of when you filed, when you'll be able to file again, and what chapter's most appropriate for you, and how long we would have to wait, depending on what chapter you filed the first time, whether it was successfully completed, and what chapter you're looking to file this time, based upon your current circumstances.

Again, this can be a very important issue if not taken seriously. If you were to file before the waiting time frame has passed, then you are ineligible for a discharge, and the bankruptcy won't do you any good if you file one.

It's important that you deal with somebody, or have somebody helping you that is familiar with the law, that can help you navigate these issues.

Please come in and see me.

I can most definitely do that in a free consultation.

Again, the advice is free, so please come in and get it.

We can give you the information, so that you can make the best decisions for you, moving forward.

Hope to hear from you soon.

 

Will Your Estate Be Subject to a Second Probate?

 

 

 

Transcript:

Hello, I'm Jonathan Barlow, a probate attorney here at Clear Counsel Law Group. We have a question today about a second probate.

Is there a time when a probate has to be reopened and a second probate occur for the same estate of a deceased person?

 

Your First Call is Free. Seriously, No Obligation.

If you have questions about this, we offer free consultations, whether on the phone or in person, and we do that for a free 30 minute consultation with no obligation to you.

We'll answer any questions that we can during that time, and you may not have any further questions beyond that.

You may not have to hire us. If you do have to hire us, we're glad to give you an estimate of our fees at that time, and you can decide whether to retain us to help you finish up your legal matter.

Let's assume that you've called and asked me a question about this where you've taken care of mom's estate, or at least you thought you'd taken care of mom's estate, you've already gone through probate, and all of the sudden you have another asset that pops up that you didn't know about.

This is what the question is about. Is there a second probate? Do I have to do probate a second time?

 

A Common Example of a Second Probate

Often this can occur when you're cleaning out mom's garage, you come across some old stock certificates from this Apple Inc. from 1981 that you never knew about, or in cleaning out the old boxes in the garage, you find this dusty old deed for five acres out in the middle of nowhere in Nevada and you investigate that a little bit and go to the county seat and determine, "Wow, mom actually still owns five acres out here in the middle of nowhere."

You've discovered some other asset that is in mom's name, and that asset, in order for it to be transferred, has to go through probate, just like all of the other assets in mom's estate, but the problem is you thought you'd already taken care of probate.

You already got a final order from the judge.

The judge said, "Go ahead and distribute everything out. We think we're done and closed," and the estate's closed. This situation has come up.

You've got two things you need to worry about or two things that have to happen.

second probate, las vegas, nevadaCopyright: ginasanders / 123RF Stock Photo

 

Now What Do You Do?

First, you're going to have to reopen the estate. You're going to have to go through a process to get the estate opened again.

The second thing you have to worry about is that discovering that asset may push you into a different level of probate than you followed previously.

Let's talk about those two things.

First, reopening the estate. In order to take care of that asset, somebody has to be appointed and court authorized to handle and administer that asset.

That's that appointment of an executor or a personal representative that's done only by the probate court.

You have to file a petition, a request with the probate court that handled the case originally, inform the court that you've discovered an additional asset and that you need somebody to be appointed by the court as executor or administrator, the personal representative of the estate, to be able to handle and administer that asset.

It may entail selling the asset, it may entail just dividing it up and distributing it amongst the heirs, as the case may be, but we need somebody with court authority to do that. Again, that can only be done by reopening the probate case.

Thanks for watching. See you next time.

 

 

Seriously Consider a Reaffirmation Agreement in Nevada Bankruptcy

 

 

 

Transcript:

Hi, Matt McArthur. Bankruptcy attorney at Clear Counsel Law Group. Today we're going to be talking about Reaffirmation Agreements in the state of Nevada.

Now warning ahead of time, this conversation's going to get a little technical and can be a little complicated. If there is any confusion about this, please come in and see me at a free consultation.

I'd be happy to discuss this in greater detail with you. Make sure that you fully understand that topic.

For now, we're just going to dive in.

 

What is a Reaffirmation Agreement?

Reaffirmation Agreement, first let's talk about what one is.

When you file for bankruptcy and you have a secured debt, this would be a loan that is attached to something like a house or a car, creditors will often seek to have you sign what we call, Reaffirmation Agreements.

This is an agreement or a contract between you and the lender for that loan that you are agreeing to not include them in your discharge and that you will be responsible for that debt following the bankruptcy regardless of whether or not you receive a discharge at the end of your bankruptcy case.

There may be reasons why you would want to do a Reaffirmation Agreement; however, in the state of Nevada, particularly when it pertains to vehicle Reaffirmation Agreements, my recommendation is that my clients do not sign them.

 

Why a Reaffirmation Agreement May Not Be in Your Best Interest

The reason is because there's been a recent change in Nevada law.

In October 2011, Nevada law changed and there was a bankruptcy case here at the District Court level, an opinion by one of the local judges was issued. It was in a case called In Re Henderson.

In that case the Judge essentially interpreted the Nevada law to mean that the simple act of filing for bankruptcy does not constitute, or is not the equivalent of, a breach of contract under your purchase agreement.

Let's take a minute to slow down and try and understand this.

Typically when you buy a car you sign a contract saying that you'll pay back the bank for the money that they lent you to be able to buy the car.

 

reaffirmation agreement, agreements, Nevada, Las Vegas Copyright: ginasanders / 123RF Stock Photo

In that contract, somewhere in that fine print, there's probably a clause that says the mere act of filing a bankruptcy is a breach of contract. When you breach this contract, or you're in default under this contract, we have the right to take back the car regardless of whether you're current on your monthly payments.

It's a big issue when the Court here says that even though you have a specific contract with this bank that says if I file bankruptcy you can come and get the car and Nevada law says, no you cannot.

It is not a breach of contract. You did nothing wrong pursuant to the contract according to the laws of Nevada.

In other words, what does this mean? What does this mean for your ability to keep your car? As long as you are otherwise in good standing under the contract, you're making your monthly payments, likely you're required to maintain current insurance on the vehicle and keep it registered.

As long as you're otherwise fulfilling your end of the bargain on the initial contract, filing for bankruptcy doesn't change any of that. You can continue to make your payments, perform under the contract and keep the vehicle without fear of the bank coming and taking your car away.

 

You May Not Need a Reaffirmation Agreement to Keep Your Car

That's a big reason why my counsel is, let's not sign this Reaffirmation Agreement that's going to keep you on the hook and keep you liable for the full amount of the loan of the car because we never know what's going to happen down the road.

If the remaining amount of time on the contract is two, three, four, five years you may experience a job loss, this car may become unaffordable for you in the future, and you retain the option to give the car back or surrender the car without any further financial obligation if you don't sign the Reaffirmation Agreement. Not so if you did sign the Reaffirmation Agreement.

If a Reaffirmation Agreement is signed and you later turn in a car after the bankruptcy discharge, it's very likely the dealer or the car lender will try to resell the car at an auction for much less than what's owed and the difference between what the car sells for and what is still owed is called a Deficiency Judgment.

The car lender will inevitably pursue you and try to collect that money still. Even though you filed bankruptcy.

 

If You Want to Keep Your Car, Come Talk to Me

In my mind, retaining that flexibility and that protection from future liability is a much greater benefit than the nominal benefits that you may receive by actually entering into a Reaffirmation Agreement.

Such as, continued reporting on your credit report. If there's some reason that you feel strongly about signing a Reaffirmation Agreement, we can absolutely do that.

Please come in and see me if you have any questions about any of this and let me help you navigate the landmines that exist with this particular topic.

The consultations are free, the advice is free, the information is free.

There's no reason not to come in and speak with me.

I hope to hear from you soon and we can talk in greater detail about your car, your house, your ability to keep it and whether or not a Reaffirmation Agreement is appropriate in your situation.

Hope to hear from you soon.

 

How Timeshares Overcome the Probate Process

 

 

 

Transcript:

Hello. My name is Jonathan Barlow, I'm a probate attorney here at Clear Counsel Law Group. I often get asked questions about timeshares interests and how those are transferred after somebody dies through the probate process.

 

With the First Conversation Free, There is No Reason Not to Call

If you have questions about a timeshare interest, we offer a free 30 minute consultation to answer any questions you might have about a timeshare, or any other assets that you're dealing with in a probate situation.

We do that with no obligation to you. Oftentimes, during that 30 minute consultation, we can answer all of your questions.

You don't have to pay us anything for that. Or, if we haven't been able to answer all of your questions, we'll give you a road map of how to resolve them and give you an estimate of the fees that it would cost to get there.

If you have any questions after watching this video, please feel free to give me a call and I'll do the best I can to answer that during the consultation.

Let's imagine that you had called me and explained to me that your mother had passed away, and she had a timeshare interest, and you wondered how you'd get that transferred to you through probate.

Typically, timeshares are one of two types. There's personal property timeshares, and there's real property timeshare interests. Let me explain to you what a personal property is, because those are a little bit easier to deal with.

 

How to Probate Personal Property Timeshares

A personal property timeshare interest is when mom purchases what we call a membership interest in a timeshare company.

Let's call them Timeshares R Us.

Timeshares R Us convinces mom that if she purchases this membership interest, she can stay at any of their properties throughout the world for one or two weeks, whatever the case may be. She might stay in Las Vegas, she might stay in Florida, Hawaii, Europe, something like that.

 

Timeshares, timeshare, probate, Welcome to Fabulous Las Vegas sign, Nevada

 

It entitles her to a one week time at any of their units throughout the world. That's a personal property interest. Those personal property timeshare interests are transferred through probate in the state where mom died.

If mom died here in Nevada, the Nevada court would handle the transference of that timeshare interest.

If she died in Wisconsin, Wisconsin laws will apply and you'd go through Wisconsin probate process to accomplish that transfer.

 

How to Probate Real Property Timeshares

The second type of timeshare interest is that real property interest. It's just a house, it's like vacant land, it's an office building. That's real property or real estate.

When mom was approached by Timeshares R Us at the casino here in Las Vegas, and they convinced her to purchase the timeshare, they actually signed a deed, just like you get when you purchase your house, signed a deed over to her that said, "We are hereby deeding to you, mom, a .001468% interest in Unit #3468 at Timeshare Village R Us in Las Vegas, Nevada."

She actually owns this minute fraction of an interest in the actual property itself through a deed that's given to her by Timeshares R Us. That real property interest in that unit here in Las Vegas can only be transferred through the probate process in Nevada.

Again, if mom was a resident of Wisconsin or California or some other state, in order to transfer that real property timeshare interest, you've got to come here to Nevada to do that, and we're glad to help you work through that situation.

We've done that with timeshares many different times.

 

The Timeshares' Analysis Can Be Tough

Let's assume that you've determined it has to go through the probate process here in Nevada, whether it's personal property, because she was a resident here in Nevada, or because it's real property here in Nevada.

It may be really simple to transfer that property, or it may be more complex.

To answer that, we have to look at all the other assets that mom left behind, whether those are very small in nature, whether they're $25,000 and under, whether they're up to several hundred thousand dollars or more.

There's different processes that you have to go through in order to transfer that timeshare interest. The main thing to remember is that timeshare interest is treated just like any other asset, whether it's a house or a car or a bank account.

If it was in mom's name only when she passed away, it's going to require some form of a probate process where the probate court gets involved and determines and says where that interest goes now that mom has passed away.

Again, if you have questions about timeshares, we're glad to answer those questions in that free consultation. We actually do most of these consultations by phone, particularly when we have family members who are from out of state.

You're calling from Wisconsin because that's where you live, where mom was as well, we're glad to do those consultations over the phone, answer those questions over the phone, and give you the advice that you might need to get that timeshare interest resolved.

If you have questions about timeshares, transferring those through probate, or any other issue that you're facing now that mom or dad or another loved one have passed away, give us a call here at Clear Counsel Law Group.

We'll be glad to answer any questions you might have.

 

What You Need to Know About the Automatic Stay of Your Bankruptcy

 

 

Transcript:

Hi. Matt McArthur, bankruptcy attorney at Clear Counsel Law Group. Welcome back.

Today what I wanted to discuss was an issue that often comes up during our free consultations that we offer here at Clear Counsel Law Group, and that is the topic of the automatic stay and its limitations.

Now you'll remember from previous videos, if you've had a chance to view those, that the automatic stay is the federal law that goes into place upon filing a bankruptcy that protects the person that has filed for bankruptcy from harassing creditors and from collection efforts by other creditors that are trying to collect on this debt.

Now this is a very powerful protection, and it's one of the most looked forward to benefits by individuals filing for bankruptcy because it stops phone calls, it gives them a little bit of breathing room, allows them to keep their car or their house a little bit longer while they're dealing with the financial mess that they find themselves in.

 

Limitations of the Automatic Stay

Related to this conversation is: What limitations are there? Is there any sort of limit placed upon my ability to keep my car or my house in a chapter 7 bankruptcy? As you would expect, yes, there are limitations.

What those limitations are, are found in the bankruptcy code: It allows a creditor to ask the court for permission to terminate the automatic stay before the bankruptcy case has ended if certain conditions are present.

Now in a chapter 7 bankruptcy, the only condition that needs to be present is that the property which has the loan tied to it is worth less than what the outstanding balance of the loan is.

In other words if you're underwater on your house, if you're underwater on your car payments, if you owed fifteen-thousand dollars on your car, for example, but the car's only worth twelve or ten, then the conditions are present in a chapter 7 case for that creditor to ask for termination of the automatic stay so that they can pursue their state law remedies.

The state law remedies would be foreclosure or repossession of the vehicle.

 

A Few Practical Considerations

One of the practical considerations that we look at in this situation is if you are current on your monthly payments on your mortgage, or your car payment, it's very unlikely that a creditor would pursue a termination of the automatic stay to pursue their state law remedies because the state law is not going to allow them to repossess the vehicle, or foreclose on a house, if you're making your monthly payments.

 

bankruptcy, automatic stay, las vegas, nevada

 

It would be an exercise in futility, or it wouldn't make any sense, for these creditors to ask for court permission and incur all the legal expenses associated with that, only to be able to sit on that right and not exercise any state law remedies ... Not being able to foreclose or take the car back.

Now if you're thinking of filing for chapter 7 bankruptcy, this is one of the things that we review in detail about your case before we file the case and potentially subject you to a situation where you would lose your car or your house.

 

I Will Examine Your Unique Situation

There are other options available as well that we'll explore; Potentially filing a chapter 13 case that would give you a little bit more protection than a simple chapter 7 case.

If you're at all worried about keeping property, especially property that still has loans attached to it inside of a chapter 7 bankruptcy or inside of a chapter 13 bankruptcy, please come in and visit with me.

The consultation is free.

The advice is free.

It doesn't hurt to come in and get that information so that you can make the best decision possible for you.

Again, there's no obligation. That first consultation is completely free.

I hope to hear from you soon so that we can talk about getting your case started as soon as possible.

 

Clear Counsel Law group

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