Blogs
Many clients have contacted us regarding the discharge of taxes in bankruptcy,
offers in compromise and installment agreements with IRS and recently penalties
assessed by IRS.
The IRS offers 3 types of penalty relief:
1. Reasonable Cause-this appears to be our best chance to abate penalties
2. Administrative Waiver and First Time Penalty Abatement
3. Statutory Exception for example a taxpayer got bad advice from IRS
Reasonable cause is relief we may grant when a taxpayer exercises ordinary business care and prudence in determining
their tax obligations but is unable to comply with those obligations due to circumstances beyond their control.
Reasonable Cause is based on all the facts and circumstances in your situation.
The IRS will consider any reason which establishes that you used all ordinary business care and prudence to meet your
Federal tax obligations but were nevertheless unable to do so.
Typical fact patterns involving reasonable cause for failure to file a tax return, make a deposit, or pay tax when due include:
1. Fire, casualty, natural disaster or other disturbances
2. Inability to obtain records
3. Death, serious illness, incapacitation or unavoidable absence of the taxpayer or a member of the taxpayer’s immediate family
Jim Shenwick, Esq. has an LLM in Taxation from New York University Law School
The Last Will and Testament and other forms of the Will were covered in our most recent Wynn at Law, LLC, article. Often going alongside a Will is one or more trusts. A revocable living trust is the tool in the Estate Planning Toolbox for holding and distributing a person’s assets to avoid probate. In its simplest definition, the Trust is an entity separate from you that allows you pass assets anyone designated in the trust.
First, a word about
probate. Probate is a court process that oversees the administion
and distribution of the assets of a deceased person. As part of the
process, the court system validates a person’s Last Will and
Testament, if they have one. While the probate process is not
“scary,” it can eat up a lot of time and money. That is all the
more reason to turn to an experienced Estate Planning attorney for
help in how to avoid that unnecessary cost and delay.
A Trust skips the
probate process
How does a Trust skip
the probate process? A Trust is an entity separate from you that
holds your assets while your alive and sets forth how you want your
assets handled after your passing. Since a Trust is a separate entity
from personally, when you pass away your Trust continues. Since a
Trust cannot “pass away” anything titled in the name of the Trust
would not be subject to the probate process. Properly titling assets
in the name of a Trust, often referred to as “funding,” avoids
probate on those assets. This is why an experienced attorney will
talk you through the process of retitling assets into your Trust.
Listing assets,
changing titles
After the Trust is set
up, the Trust ‘owns’ the property. A Trust is only worth the assets
that are titled into it. This is the step that trips up many who
don’t use an attorney for the trust. For many things – jewelry or
collections as examples – the trust simply lists the assets in
detail. Real estate is a bit different in that the deed or title (see
related article) has to be changed to list the trust as the actual
owner of the property. This isn’t complicated. Still, when this step
is overlooked, your assets could end up in probate.
Avoid double
counting and under counting
Your retirement plans
and insurance policies already have beneficiaries. This money doesn’t
end up in probate, but the assets also don’t flow into a trust,
unless you’ve set the trust as the beneficiary. That tactic can seem
confusing, but it points out the importance of looking at
beneficiaries of things like life insurance and IRAs at the same time
as the trust is created. You might have even forgotten who you listed
as the beneficiary over the years since opening the IRA or policy.
In the last article, we covered the Pourover Will. The pourover helps you take care of assets you may have overlooked by sweeping them into a trust. In our next article, we’re going to cover Powers of Attorney that will help you take care of yourself.
The post Your Estate Planning Toolbox: Trusts appeared first on Wynn at Law, LLC.
The Last Will and Testament and other forms of the Will were covered in our most recent article. Often going alongside a Will is one or more trusts. A revocable living trust is the tool in the Estate Planning Toolbox for holding and distributing a person’s assets to avoid probate. In its simplest definition, the Trust is an entity separate from you that allows you pass assets anyone designated in the trust.
First, a word about probate. Probate is a court process that oversees the administration and distribution of the assets of a deceased person. As part of the process, the court system validates a person’s Last Will and Testament, if they have one. While the probate process is not “scary,” it can eat up a lot of time and money. That is all the more reason to turn to an experienced Estate Planning attorney for help in how to avoid that unnecessary cost and delay.
A Trust skips the
probate process
How does a Trust skip
the probate process? A Trust is an entity separate from you that
holds your assets while your alive and sets forth how you want your
assets handled after your passing. Since a Trust is a separate entity
from personally, when you pass away your Trust continues. Since a
Trust cannot “pass away” anything titled in the name of the Trust
would not be subject to the probate process. Properly titling assets
in the name of a Trust, often referred to as “funding,” avoids
probate on those assets. This is why an experienced attorney will
talk you through the process of retitling assets into your Trust.
Listing assets,
changing titles
After the Trust is set
up, the Trust ‘owns’ the property. A Trust is only worth the assets
that are titled into it. This is the step that trips up many who
don’t use an attorney for the trust. For many things – jewelry or
collections as examples – the trust simply lists the assets in
detail. Real estate is a bit different in that the deed or title (see
related article) has to be changed to list the trust as the actual
owner of the property. This isn’t complicated. Still, when this step
is overlooked, your assets could end up in probate.
Avoid double
counting and under counting
Your retirement plans
and insurance policies already have beneficiaries. This money doesn’t
end up in probate, but the assets also don’t flow into a trust,
unless you’ve set the trust as the beneficiary. That tactic can seem
confusing, but it points out the importance of looking at
beneficiaries of things like life insurance and IRAs at the same time
as the trust is created. You might have even forgotten who you listed
as the beneficiary over the years since opening the IRA or policy.
In the last article, we covered the Pourover Will. The pourover helps you take care of assets you may have overlooked by sweeping them into a trust. In our next article, we’re going to cover Powers of Attorney that will help you take care of yourself.
The post Your Estate Planning Toolbox: Trusts appeared first on Wynn at Law, LLC.
The Last Will and Testament and other forms of the Will were covered in our most recent Wynn at Law, LLC, article. Often going alongside a Will is one or more trusts. A revocable living trust is the tool in the Estate Planning Toolbox for holding and distributing a person’s assets to avoid probate. In its simplest definition, the Trust is an entity separate from you that allows you pass assets anyone designated in the trust.
First, a word about
probate. Probate is a court process that oversees the administion
and distribution of the assets of a deceased person. As part of the
process, the court system validates a person’s Last Will and
Testament, if they have one. While the probate process is not
“scary,” it can eat up a lot of time and money. That is all the
more reason to turn to an experienced Estate Planning attorney for
help in how to avoid that unnecessary cost and delay.
A Trust skips the
probate process
How does a Trust skip
the probate process? A Trust is an entity separate from you that
holds your assets while your alive and sets forth how you want your
assets handled after your passing. Since a Trust is a separate entity
from personally, when you pass away your Trust continues. Since a
Trust cannot “pass away” anything titled in the name of the Trust
would not be subject to the probate process. Properly titling assets
in the name of a Trust, often referred to as “funding,” avoids
probate on those assets. This is why an experienced attorney will
talk you through the process of retitling assets into your Trust.
Listing assets,
changing titles
After the Trust is set
up, the Trust ‘owns’ the property. A Trust is only worth the assets
that are titled into it. This is the step that trips up many who
don’t use an attorney for the trust. For many things – jewelry or
collections as examples – the trust simply lists the assets in
detail. Real estate is a bit different in that the deed or title (see
related article) has to be changed to list the trust as the actual
owner of the property. This isn’t complicated. Still, when this step
is overlooked, your assets could end up in probate.
Avoid double
counting and under counting
Your retirement plans
and insurance policies already have beneficiaries. This money doesn’t
end up in probate, but the assets also don’t flow into a trust,
unless you’ve set the trust as the beneficiary. That tactic can seem
confusing, but it points out the importance of looking at
beneficiaries of things like life insurance and IRAs at the same time
as the trust is created. You might have even forgotten who you listed
as the beneficiary over the years since opening the IRA or policy.
In the last article, we covered the Pourover Will. The pourover helps you take care of assets you may have overlooked by sweeping them into a trust. In our next article, we’re going to cover Powers of Attorney that will help you take care of yourself.
The post Your Estate Planning Toolbox: Trusts appeared first on Wynn at Law, LLC.
After bankruptcy credit card offers come faster than you think Have you heard the lie? The lie that filing filing bankruptcy means seven years with bad credit. You after bankruptcy credit will be better than most people expect. The truth about after bankruptcy credit. The truth is the opposite of that bad credit lie. […]
The post Credit Card Offers Come Faster Than You Expect by Robert Weed appeared first on Robert Weed - AE.
After bankruptcy credit card offers come faster than you think Have you heard the lie? The lie that filing filing bankruptcy means seven years with bad credit. You after bankruptcy credit will be better than most people expect. The truth about after bankruptcy credit. The truth is the opposite of that bad credit lie. […]
The post Credit Card Offers Come Faster Than You Expect by Robert Weed appeared first on Robert Weed - .
In my Atlanta area bankruptcy practice I sometimes get calls from a very anxious man or woman who tells me that their payroll office has received a wage garnishment order but the employee has no idea why or where it came from. What should they do? Here is how I would approach this problem.First, understand that you have to move quickly. If your employer receives an order of continuing wage garnishment, they have to honor it within 45 days – here is what the summons looks like.If your employer does not honor the garnishment and withhold wages, your employer can be “punished” for not obeying the order by having the entire judgment held against the employer. debt. Needless to say, your employer does not want to get stuck paying your debts.Who is the Plaintiff?Your first step should be to find out who the plaintiff (creditor) is in your case and the basis of their claim. If the holder of the garnishment order is a student loan creditor or a taxing authority, different rules apply and you need to speak to a lawyer immediately.If the claim is from a collection agency, there is a good chance that this debt has been sold multiple times by creditors and collection agencies so you may not recognize the name of the collection agency.For example, if you owe a debt to Chase Bank for a credit card, Chase may have sold that debt to Allied Systems, who may have sold it to LVNV or some other agency. Do not assume that the claim is bogus simply because you do not recognize the name of the plaintiff.When was a Lawsuit Filed Against You?If a creditor has obtained a judgment against you that means that the creditor has previously filed a lawsuit and obtained a judgment. About 95% of judgments on consumer loans are default judgments, meaning that the creditor filed a lawsuit and no one filed a written answer or otherwise responded.You may be able to find out the details of the lawsuit by using online court records. Most magistrate, state and superior court clerks in the Atlanta area offer online case search so you may be able to discover a case number and the name of the collection agency’s lawyer.If you reach out to the collection lawyer you may or may not get very far. Most collection law firms in the Atlanta area are volume practices that file dozens of cases every day. They also hear all kind of stories and denials from upset defendants. If you can get hold of someone who will talk to you, ask for copies of the lawsuit and a copy of the “return of service” showing when and by whom you were served.Was Service of the Lawsuit Valid?Before a judgment can be entered, you have to be legally served with a copy of the lawsuit. Usually sheriff’s deputies handle service. I have seen many cases where service was invalid – a busy deputy knocked on the door of whatever address is on the lawsuit, handed whoever answered the door a stack of papers then left.If the address on the lawsuit was inaccurate, or old, the deputy may have served someone who is not you and you would never have known.Sometimes the judgment against you is a “domesticated judgment” from another state. In these cases, a plaintiff sued you at an address they had for you in another state. Here, too, if no one answered they would get a judgment in that state then they would hire a lawyer in Georgia to “domesticate” the judgment in the county where you live or work.The rules of service can vary from state to state but generally speaking, you can be considered legally served if the sheriff’s deputy confirms you live at a residence and then hands the lawsuit to a competent person.This means that service may be valid if the sheriff’s deputy knocked on your door and handed the lawsuit paperwork to your teenage son, or to your 85 year old mother. If the “return of service” paperwork shows that the sheriff’s deputy came to the address where you lived and handed the lawsuit paperwork to someone in your household it will be very difficult for you to convince a judge that you were not properly served.On the other hand, if you have a common name like Smith, Johnson or Thompson and the address on the lawsuit is one where you never lived, it will be much easier to prove that you were not properly served.If service was bad, you can make a “collateral attack” on the judgment. This means that you are not addressing the merits – do you owe the debt or not – but you are asking the judge to undo the judgment because service was bad and you were denied your legal right to respond.My experience has been that if you can prove that service was defective most collection lawyers will voluntarily vacate the judgment and the garnishment. They may then start the process over again using the correct address but you will have weeks or months to either negotiate a settlement, mount a defense or file bankruptcy.Your Credit Reports May Reveal Essential InformationAnother part of your research should be to request a copy of your credit reports. You can do this for free at AnnualCreditReport.comAnnualCreditReport.com. Your credit reports should document to whom you owe money and if a lawsuit has been filed.Your immediate goal in the case of an unexpected wage garnishment is to stop the garnishment to give you time to decide what to do. If you really do not owe the money, you can ask for your day in court or perhaps your day at a mediation table. If you do owe the money, you will want time to either negotiate a settlement or to talk to a bankruptcy lawyer.As I noted at the beginning of this article, do not delay in taking action. Getting money back from a garnishing creditor is much more difficult than preventing the wage garnishment in the first place. Further, even if the debt is not legitimate, you could end up legally owing it if you do not assert your rights.Ginsberg Law helps men and women in the Atlanta area deal with debt problems. If you are facing a lawsuit or a wage garnishment, we’d be happy to help you. Our number is 770-393-4985.The post What Should You Do About a Surprise Wage Garnishment? appeared first on theBKBlog.
In my Atlanta area bankruptcy practice I sometimes get calls from a very anxious man or woman who tells me that their payroll office has received a wage garnishment order but the employee has no idea why or where it came from. What should they do? Here is how I would approach this problem.First, understand that you have to move quickly. If your employer receives an order of continuing wage garnishment, they have to honor it within 45 days – here is what the summons looks like.If your employer does not honor the garnishment and withhold wages, your employer can be “punished” for not obeying the order by having the entire judgment held against the employer. debt. Needless to say, your employer does not want to get stuck paying your debts.Who is the Plaintiff?Your first step should be to find out who the plaintiff (creditor) is in your case and the basis of their claim. If the holder of the garnishment order is a student loan creditor or a taxing authority, different rules apply and you need to speak to a lawyer immediately.If the claim is from a collection agency, there is a good chance that this debt has been sold multiple times by creditors and collection agencies so you may not recognize the name of the collection agency.For example, if you owe a debt to Chase Bank for a credit card, Chase may have sold that debt to Allied Systems, who may have sold it to LVNV or some other agency. Do not assume that the claim is bogus simply because you do not recognize the name of the plaintiff.When was a Lawsuit Filed Against You?If a creditor has obtained a judgment against you that means that the creditor has previously filed a lawsuit and obtained a judgment. About 95% of judgments on consumer loans are default judgments, meaning that the creditor filed a lawsuit and no one filed a written answer or otherwise responded.You may be able to find out the details of the lawsuit by using online court records. Most magistrate, state and superior court clerks in the Atlanta area offer online case search so you may be able to discover a case number and the name of the collection agency’s lawyer.If you reach out to the collection lawyer you may or may not get very far. Most collection law firms in the Atlanta area are volume practices that file dozens of cases every day. They also hear all kind of stories and denials from upset defendants. If you can get hold of someone who will talk to you, ask for copies of the lawsuit and a copy of the “return of service” showing when and by whom you were served.Was Service of the Lawsuit Valid?Before a judgment can be entered, you have to be legally served with a copy of the lawsuit. Usually sheriff’s deputies handle service. I have seen many cases where service was invalid – a busy deputy knocked on the door of whatever address is on the lawsuit, handed whoever answered the door a stack of papers then left.If the address on the lawsuit was inaccurate, or old, the deputy may have served someone who is not you and you would never have known.Sometimes the judgment against you is a “domesticated judgment” from another state. In these cases, a plaintiff sued you at an address they had for you in another state. Here, too, if no one answered they would get a judgment in that state then they would hire a lawyer in Georgia to “domesticate” the judgment in the county where you live or work.The rules of service can vary from state to state but generally speaking, you can be considered legally served if the sheriff’s deputy confirms you live at a residence and then hands the lawsuit to a competent person.This means that service may be valid if the sheriff’s deputy knocked on your door and handed the lawsuit paperwork to your teenage son, or to your 85 year old mother. If the “return of service” paperwork shows that the sheriff’s deputy came to the address where you lived and handed the lawsuit paperwork to someone in your household it will be very difficult for you to convince a judge that you were not properly served.On the other hand, if you have a common name like Smith, Johnson or Thompson and the address on the lawsuit is one where you never lived, it will be much easier to prove that you were not properly served.If service was bad, you can make a “collateral attack” on the judgment. This means that you are not addressing the merits – do you owe the debt or not – but you are asking the judge to undo the judgment because service was bad and you were denied your legal right to respond.My experience has been that if you can prove that service was defective most collection lawyers will voluntarily vacate the judgment and the garnishment. They may then start the process over again using the correct address but you will have weeks or months to either negotiate a settlement, mount a defense or file bankruptcy.Your Credit Reports May Reveal Essential InformationAnother part of your research should be to request a copy of your credit reports. You can do this for free at AnnualCreditReport.comAnnualCreditReport.com. Your credit reports should document to whom you owe money and if a lawsuit has been filed.Your immediate goal in the case of an unexpected wage garnishment is to stop the garnishment to give you time to decide what to do. If you really do not owe the money, you can ask for your day in court or perhaps your day at a mediation table. If you do owe the money, you will want time to either negotiate a settlement or to talk to a bankruptcy lawyer.As I noted at the beginning of this article, do not delay in taking action. Getting money back from a garnishing creditor is much more difficult than preventing the wage garnishment in the first place. Further, even if the debt is not legitimate, you could end up legally owing it if you do not assert your rights.Ginsberg Law helps men and women in the Atlanta area deal with debt problems. If you are facing a lawsuit or a wage garnishment, we’d be happy to help you. Our number is 770-393-4985.The post What Should You Do About a Surprise Wage Garnishment? appeared first on theBKBlog.
Supreme Court Might Allow FDCPA Suits More than a Year After Claim Arises
Holding: Statute of limitations begins to run when the alleged FDCPA violation occurs, not when the violation is discovered.
Rotkiske v. Klemm, 18-328 (US Supreme Court, Dec. 10, 2019) The Fair Debt Collection Practices Act (FDCPA) authorizes private civil actions against debt collectors who engage in certain prohibited practices. An FDCPA action must be brought “within one year from the date on which the violation occurs.” 15 U. S. C. §1692k(d). Respondent Klemm & Associates (Klemm) sued petitioner Rotkiske to collect an unpaid debt and attempted service at an address where Rotkiske no longer lived. An individual other than Rotkiske accepted service. Rotkiske failed to respond to the summons, and Klemm obtained a default judgment in 2009. Rotkiske claims that he first learned of this judgment in 2014 when his mortgage application was denied. He then filed suit against Klemm, alleging that Klemm violated the FDCPA by contacting him without lawful ability to collect. Klemm moved to dismiss the action as barred by the FDCPA’s one-year statute of limitations. As relevant here, Rotkiske argued for the application of a “discovery rule” to delay the beginning of the limitations period until the date that he knew or should have known of the alleged FDCPA violation. Relying on the statute’s plain language, the District Court rejected Rotkiske’s approach and dismissed the action. The Third Circuit affirmed.
Held: Absent the application of an equitable doctrine, §1692k(d)’s statute of limitations begins to run when the alleged FDCPA violation occurs, not when the violation is discovered.
MUSINGS FROM DIANE:
For decades collection companies (and some creditors) have ignored the law because they knew no one was watching. If their bad acts were discovered, they merely close the door (perhaps pay a large fine, but far less than what they earned) and start a new business with the same immoral attitude about collecting debts. Then Consumer Financial Protection Bureau (www.CFPB.gov) was established. Unfortunately, the Consumer Financial Protection Bureau was gutted by Mr. Trump, but I am certain that under the next administration the organization will return to its original goal of protecting consumers.
This case shows the tide is somewhat changing and we can only hope that momentum continues.
How Can I Help You?
The post Supreme Court – Statute of Limitations under FDCPA appeared first on Diane L. Drain - Phoenix Arizona Bankruptcy & Foreclosure Attorney.
OCWEN/US Bank Jury Awards Homeowner Damages of $3.5 Million
Jury punishes OCWEN/U.S. Bank National for atrocious record-keeping (this is not the first time OCWEN has been exposed for intentional malice)
Ms. Saccameno filed a chapter 13 bankruptcy to save her home. She followed the chapter 13 plan and brought the mortgage current, ultimately receiving her hard-earned discharge. Life should have been great, but OCWEN/U.S. Bank began harassing Mr. Saccameno with dire threats of foreclosure (even though she had paid all her mortgage payments). Ms. Saccameno and her attorney sent OCWEN/U.S. Bank hundreds of pages proving that her payments were current, but they were ignored. Ms. Saccameno filed a lawsuit and claimed damage.
OCWEN was already under a consent decree for shoddy servicing
At trial OCWEN/U.S. Bank tried to blame their employees. But, the court found “Ocwen cannot pin this case on Marla (an employee). Her error was one among a host of others, and each error was compounded by Ocwen’s obstinate refusal to correct them.” The jury awarded Ms. Saccameno $582,000 in compensatory damages, $3 million in punitive damages. The judge agreed that OCWEN/U.S. Bank had “atrocious record-keeping”, but that, constitutionally, she must reduce the punitive to an amount equal to compensatory – $582,000 (case has judge’s detailed analysis of constitutional principles governing the award of punitive damages – a must-read for lawyers).
MUSINGS FROM DIANE:
What is a ‘shakedown’? One definition is “swindle or extortion”. When a bank or any large entity knowingly abuses their power, that is the same as loan shark breaking someone’s legs in an attempt to collect money, which may or may not be owed to them. This is true for OCWEN. Over the last several years, courts and administrative agencies have found OCWEN used deception to deprive many of their customers of money or their home.
How Can I Help You?
The post OCWEN/US Bank fined $3 million for reprehensible conduct for attempted wrongful foreclosure appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.
Updated daily, this blog will keep you informed on the latest bankruptcy news! 
Learn more about how Bankruptcy works and what you need to know.