This is your very first post. Click the Edit link to modify or delete it, or start a new post. If you like, use this post to tell readers why you started this blog and what you plan to do with it.
This is your very first post. Click the Edit link to modify or delete it, or start a new post. If you like, use this post to tell readers why you started this blog and what you plan to do with it.
If you’re in the middle of a short sale or just about to do one, you probably have a lot of questions. What is the difference between a short sale and a foreclosure? And what happens if you might file bankruptcy, as well?
The benefit of continuing with a short sale after you’ve decided to file for bankruptcy will hinge on the type of bankruptcy you plan on filing.
If you have decided to file for Chapter 7 bankruptcy and are currently trying to sell a home via short sale, there is usually no reason to continue with the short sale. The purpose of a short sale is to relieve the borrower’s obligation to pay the difference between the sale price of the home and the mortgage amount when the property is “underwater” or worth less than what is owed.
Bankruptcy gives the borrower the option of surrendering the property back to the bank with no continuing obligation under the mortgage and no corresponding tax liability for the forgiveness of debt (usually a taxable event). In essence, surrendering a home in bankruptcy allows the borrower to simply give back the keys and walk away, leaving the purpose behind the short sale moot.
Bottom line: If you are going to file Chapter 7 bankruptcy, why deal with the stress of negotiating a short sale? However, if you still live in an area where homes are severely underwater and there is a backlog of foreclosures, it could make sense to go through with a short sale to get title out of your name. When a home is surrendered via bankruptcy, the bank still must foreclose to remove the owner’s obligation for HOA dues, etc.
The analysis of a short sale bankruptcy is slightly different in a Chapter 13 setting. Chapter 13 bankruptcy allows the debtor to surrender a home, as well; however, any remaining deficiency judgment after foreclosure will be paid out as unsecured debt through the Chapter 13 plan.
Let us explain. Even though the property is being surrendered, the bank is still obligated to foreclose to clear title. The foreclosure process will result in a sale of the property. If the sale price is less than what is owed on the mortgage, a deficiency judgment results. Subject to state law, outside of bankruptcy, the borrower would be personally liable for the entire amount of the judgment. Generally, a Chapter 7 bankruptcy will eliminate all unsecured debt including deficiencies after a foreclosure.
By contrast, in a Chapter 13 bankruptcy, the deficiency between the foreclosure sale price and mortgage amount will be paid out as unsecured debt, at far less than 100%. Because the debtor will still be responsible to pay some of his or her unsecured debt through the plan, a short sale that slashes this debt before bankruptcy remains beneficial. Therefore, if a borrower can negotiate a short sale prior to filing for Chapter 13 bankruptcy, she will reduce her plan payment by reducing her unsecured debt.
Bottom line on Chapter 13 and short sales: Completing a short sale before this chapter of bankruptcy has the potential to lower your plan payments.
It is always wise to consult with an experienced bankruptcy lawyer if you have questions, whether they be related to a short sale or foreclosure as it concerns your bankruptcy petition. Filing for bankruptcy can be complex, so you’ll want the assistance of a qualified attorney to guide you through the legal process and ensure you fill out all the paperwork correctly and disclose all your assets.
If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you. Come in or call in for your free initial consultation.
Payment of child support can come about in one of three main ways:
The following overview focuses on resolution of child support payment through use of the first two methods mentioned above: agreement between the parents through informal settlement negotiation and use of ADR processes such as mediation and collaborative family law. Note: Even if your child support situation is resolved outside of court, in most states you will need court approval of your agreement to ensure that it complies with the Utah State guidelines on child support. You should call us to discuss this to make sure your child support agreement is enforceable in court.
If parents are willing to work together informally to resolve all issues related to child support (including payment amount, frequency of payments, and duration) they can negotiate an agreement with or without the assistance of attorneys. In some cases, the parties in a child support dispute may prefer to have their positions negotiated by an attorney, or the parties may negotiate themselves, and can consult their attorneys prior to finalizing any agreement. The specific settlement negotiation process will vary in most cases, but the ideal end result of successful settlement talks in a child support case is a written agreement. This written agreement may be referred to as a “settlement agreement,” and in some child support cases (such as those that are part of a divorce) the agreement on child support may be a part of a larger “divorce agreement” or “dissolution agreement.” (more on finalizing this agreement below.)
For parents who need to resolve a child support matter, another option is alternative dispute resolution (ADR) — including processes such as mediation and collaborative law. ADR may prove to be a beneficial tool in resolving child support issues, depending on factors such as the degree to which the parents are in dispute on key issues related to child support and their willingness to work together to resolve those issues.
ADR processes tend to be less adversarial and more casual than the traditional court setting, and may facilitate early settlement.
With mediation and collaborative family law, parents in a child support dispute (along with their attorneys) have an opportunity to play an active role in resolving key decisions related to child support, instead of having a third party (judge or jury) make those decisions. Rarely used in family law cases, arbitration is a more structured ADR option, in which a neutral third-party makes decisions after hearing each side’s evidence and arguments. The arbitrator’s decision in a child support is not necessarily final, and the parties may still be able to resolve key issues before a court at a later date.
Whether the parties resolve a child support dispute out-of-court through informal negotiation or ADR, the ideal result is a written document which finalizes what was agreed upon. This agreement is usually shown to a judge for final approval, to ensure that what the parents have agreed to also complies with state guidelines on child support. An informal court hearing may follow, during which the judge will ask some basic factual questions to make sure that each party understands the terms of the agreement.
As long as the judge is satisfied that the child support agreement was fairly negotiated, and that the terms do not contradict state guidelines, the agreement will almost always receive court approval. In most states, the agreement then becomes a binding court order or “decree,” and the parents or other parties to the agreement must adhere to it or face legal consequences. For example, if a child support settlement agreement has been converted into a court order, and the agreement is violated by a father who repeatedly fails to make support payments on time, the mother can go to court to enforce her rights to child support payments under the order, and the father will face additional fines or even jail time if he fails to meet his child support obligations under the order.
If you have a question about child support or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.
Once you have decided that you want to adopt a child, figuring out how to begin an adoption can be quite challenging. One of the first steps is to do decide which type of adoption is right for you. Prospective parents may choose to work with an adoption agency or proceed with an “independent” adoption without agency involvement. Also, birth parents and adoptive parents must decide how much contact they want with one another. Additionally, prospective parents must follow state regulations mandating the “home study” process, court approval, and other steps along the way. This sub-section includes articles and resources to help you get started and successfully complete the adoption process.
Unless you are seeking to adopt a specific child the first question many would-be adoptive parents must face is how to locate a child in need of adoption. Common methods for identifying an adoptable child include the following;
Adoption agencies and government organizations may facilitate adoption and provide other helpful services that ensure that parents are matched with appropriate children in need of adoption. Acting as a foster parent may lead to a successful adoption, though not all foster relationships can result in an adoption.
Surrogacy, contracting to have someone bear a child on your behalf; can help ensure a genetic relationship between the adoptive parent and child, although surrogates are also used in circumstances where the child has no biological relationship with either of the adoptive parents.
Doctors, lawyers, and religious organizations may be aware of children in need of adoption as a result of their contact with the community. Your social network, the internet, and paid advertisement are other methods a parent seeking a child to adopt may publicize their availability and interest.
All states require prospective parents to complete a “home study.” This process ensures that adoptive families are prepared and educated sufficiently for the adoption. Home study also provides information about the intending parents to establish that they are capable of providing a healthy environment for an adopted child. Specific requirements for home study vary greatly, but there are some common elements.
Many home studies require prospective parents attend training focused on the challenges raising an adopted child. Interviews are quite common and several of them may be required. Home visits ensure that state licensing standards are met. Health and income statements intend to ensure that a serious health or financial problem will not jeopardize the adopted child. Background checks, autobiographical statements, and references help establish that the person has no record of criminal activity or child abuse and help ensure that prospective parents will provide a home free of abuse or neglect.
Although details may vary greatly, adoptions require a petition to the appropriate court. A petition, at minimum, will typically identify all parties, request the termination of parental rights of the birth parents, if any, and urge that the adoptive parents be granted custody of the child.
Proceedings and petitions may be quite complicated. Rules can vary greatly between jurisdictions and are nearly always fairly complicated. Retaining an agency, attorney, or both may be necessary to assist in representation.
If you have a question about a stepchild adoption or if you need a lawyer in Utah, please call Ascent Law at (801) 676-5506. We will help you.
Determining the value of a business can be a major obstacle to overcome in arriving at an asset division settlement in a divorce. At our Salt Lake City family law firm, we regularly handle cases that involve complex assets such as businesses. Whether your business is a professional practice or a retail establishment, you most likely will need expert appraisal of its value.
Many of our clients who have business valuation concerns are preparing to exit long-term marriages. When a business has been in operation during a marriage, it can be difficult to determine how a spouse’s nonmarital contribution will figure into any equation. This and other complex issues related to business valuations underscore the importance of working with an experienced family law attorney.
We regularly work together with professional appraisers to help our clients obtain accurate business valuations. The appraisers whom we hire know full well how easy it is for the “other side” to seek to deflate income or otherwise distort the value of business assets. We are prepared to stand up for your rights, beginning with a correct business valuation effort.
The determination of child custody in a divorce or separation will have a significant and long-lasting impact on you and your children. Child custody is typically the most emotional aspect of a divorce, and the task of determining child custody and visitation can be very complex.
In determining child custody matters, the law places the best interests of the child above all other considerations. However, parents do not always agree on what is in the best interests of the child. Certain issues may make custody complex. If you are getting divorced or separated and your ex is requesting more access than you feel is in the child’s best interests, it is very important to consult with an experienced child custody lawyer.
Our knowledge of Utah child custody laws allows us to facilitate the development of the required child custody and parenting plan in an effective and efficient manner. We can also assist you with modifications to child custody orders should the need arise.
If you are engaged in a child custody dispute, our aggressive lawyers are here to fight for your rights. While a prostrated legal battle is hardly ever in the child’s best interests, operating from a position of strength is a key element in achieving what is best for you and your child.
One household becomes two after a divorce, and some spouses often face an uncertain financial future after the marriage ends. In some cases, one spouse may be ordered to pay alimony to another, if certain circumstances apply.
When divorcing couples disagree on the amount and length of time of alimony payments, the court will make a determination based on a number of factors, including:
Whether you are seeking alimony in a divorce or your ex is seeking alimony from you, it is important to have an experienced attorney protecting your interests.
Our divorce lawyers have successfully handled numerous alimony matters for clients throughout Utah.
If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.
The Securities and Exchange Commission announced that Merrill Lynch has agreed to pay a $10 million penalty to settle charges that it was responsible for misleading statements in offering materials provided to retail investors for structured notes linked to a proprietary volatility index.
According to the SEC’s order instituting a settled administrative proceeding, the offering materials emphasized that the notes were subject to a 2 percent sales commission and 0.75 percent annual fee. Due to the impact of these costs over the five-year term of the notes, the volatility index would need to increase by 5.93 percent from its starting value in order for investors to earn back their original investment on the maturity date. But the offering materials failed to adequately disclose a third cost included in the volatility index known as the “execution factor” that imposed a cost of 1.5 percent of the index value each quarter.
The notes were issued by Merrill Lynch’s parent company Bank of America Corporation, and Merrill Lynch had principal responsibility for drafting and reviewing the retail pricing supplements. The SEC’s order finds that Merrill Lynch did not have in place effective policies or procedures to ensure its personnel drafted and approved disclosures that adequately disclosed the impact of the execution factor.
This is the agency’s second case involving misleading statements by a seller of structured notes. In October 2015, UBS AG agreed to pay $19.5 million to settle charges that it made false or misleading statements and omissions in offering materials provided to U.S. investors in structured notes linked to a proprietary foreign exchange trading strategy.
“This case continues our focus on disclosures relating to retail investments in structured notes and other complex financial products. Offering materials for such products must be accurate and complete, and firms must implement systems and policies to ensure investors receive all material facts,” said Andrew J. Ceresney, Director of the SEC Enforcement Division.
Michael J. Osnato, Chief of the SEC Enforcement Division’s Complex Financial Instruments Unit, added, “This case demonstrates the SEC’s ongoing commitment to creating a level playing field when it comes to the sale of highly complex financial products to retail investors.”
The SEC’s order finds that Merrill Lynch violated Section 17(a)(2) of the Securities Act of 1933, which prohibits obtaining money or property by means of material misstatements and omissions in the offer or sale of securities. Without admitting or denying the findings, Merrill Lynch agreed to cease and desist from committing or causing any similar future violations and pay a penalty of $10 million.
In Houseman v. Sagerman, the Delaware Chancery Court’s dismissal of the stockholder plaintiff’s claim for breach of fiduciary duty underscores the heightened pleading standard necessary to support such a claim by plaintiffs against a corporation’s directors arising out of allegations that the directors breached their duty in the process taken to approve the transaction.
The plaintiffs alleged that Universata’s board of directors conducted an imperfect process in regards to obtaining of the best price for stockholders. Two years after the merger between Universata, Inc. and Healthport Technologies, Inc. closed, the plaintiffs filed, among two other causes of action, the claim of breach of fiduciary duty. The plaintiffs allege that the director acted in bad faith by “knowingly and completely fail[ing] to undertake their responsibilities” to maximize shareholder value.
The Court, however, did not agree with the plaintiffs. The Court noted that the directors had, in fact, satisfied their duty of loyalty by taking into account, and acting upon, the advice of both their legal counsel and their financial advisor, Keyblanc. The allegations in the complaint showed that the Board had ultimately decided, after considering bids from several additional interested parties and negotiating the terms with Healthport, that it had obtained everything that the Board felt it could get.
Additionally, the plaintiffs failed to allege any facts that would prove a motive on the part of the directors to act in “bad faith.” The Court observed that the directors had a personal financial interest in obtaining the best price possible, dispelling the notion that the directors’ interests were not aligned with the interests of the company’s public stockholders.
According to the Court, the plaintiffs failed to plead sufficient facts to show that the board of directors of Universata “utterly failed to undertake any action to obtain the best price for stockholders.” The motion to dismiss, filed by certain directors and financial advisors of Universata, was therefore granted by the Court.
The Court, while recognizing that the approach the Board took was “less then optimal,” nevertheless granted the motion to dismiss, as the plaintiffs failed to meet the pleading standard. The decision in Houseman serves as a reminder to plaintiffs to be mindful of the high pleading burden that must be met to support a claim of breach of fiduciary duty.
The Code 83 regulations contain an important exception to the non-transferability rule that arises mostly with stock option grants, despite the fact that restricted stock grants are the type most often impacted by Code Section 83.
The exception to the regulations relates to profits realized under “short-swing” transactions. Under Section 16(b) of the Securities Act of 1934, any profit realized by an insider on a “short-swing” transaction must be disgorged by the company or a stockholder acting on the company’s behalf. “Short-swing” transactions are the non-exempt purchases and sales (or sales and purchases) of companies’ equity securities within a period of less than six months. In the event that a company grants a stock option that is not made under the applicable Section 16(b) exemption, it is deemed a non-exempt purchase.” Generally, the shares underlying the option are subject to the Section’s restrictions for six months after the date of the grant. Any sale of these shares within the six-month period following the grant date could be matched with the “purchase” and violate the Section.
With fairness in mind, it seems to follow that if a sale of shares would subject someone to potential SEC penalties, taxation on those shares would be delayed until the risk of liability lapses. Section 83 of the Code has always recognized this point. The Code Section 83 also recognizes that if a seller is restricted from selling shares of stock previously acquired in a non-exempt transaction within the past six months because of potential liability under Section 16(b), the shares are deemed to be subject to a substantial risk of forfeiture. This risk of forfeiture does not lapse, and as a result, the grantee will not realize taxable income until six months after which the acquisition of the shares by the grantee took place.
A question remained, however, regarding whether a subsequent non-exempt purchase could further extend the substantial risk of forfeiture. The final regulations answers this question, explaining with a new example that the Internal Revenue Service and the Treasury to not respect this type of strategy. The new example clearly notes that any options granted in a non-exempt manner will only be considered subject to substantial risk of forfeiture for the first six months after the date of the grant of the shares.
This new example means that the risk of disgorging any profits under Section 16(b) generally will not have any impact on the substantial risk of forfeiture analysis.
With this new example, the IRS is essentially eliminating any opportunity to abuse the Section 16(b). The IRS is reminding grantees that transfer restrictions alone cannot delay taxation. As a result, employers should be careful to ensure that their grants contain a valid substantial risk of forfeiture to allow the grantees the ability to defer taxable income.
If you are here, you probably have a business law or securities law matter you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.
Asset Protection applies to anyone who has assets they really want to keep. However, for some professions the attorneys consider it a bit more important than others. Of course we would include the usual suspects like doctors and medical professionals, as well as builders and absolutely anyone with employees. But there is another area in which it is becoming more and more important – Landlords.
20 or 30 years ago, landlords weren’t particularly worried about lawsuits. Sure they happened, but insurance was easy to get and was likely to cover almost anything that could happen. Today the world is just a bit more complicated. Here’s why:
So what does this all mean if you are a landlord? It’s simple.
If you are reading this then you are likely doing research on the Internet. This is a great thing, but be aware, it has its limits. Asset protection is an area where a little knowledge can definitely be dangerous. Once you have done the basic research I recommend that you pick up the phone and speak with some of our experienced attorneys.
Asset protection has become a very popular field, which means there are a lot of people now counseling in the area. Make sure you find someone with experience who can provide both the legal tools you need as well as the ongoing counsel required to make those tools really work.
In the end, asset protection has become an essential part of any wealth planning strategy and taking it seriously can make all the difference when it comes to keeping what you have worked to create.
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.
In an economy where housing problems dominate the headlines, high interest credit cards still remain one of the largest issues consumers face in their fight for financial health. It should come as no surprise to learn then, that credit card debt is still one of the primary reasons consumers are forced to file for bankruptcy. When a credit card account has been delinquent for more than 180 days, banks will charge off what is owed as “bad debt” and sell the account to a debt collector who will call, harass and even sue if the past due balances are high enough. Mounting pressure from debt collectors pushes many consumers through the front door of a bankruptcy office because chapter 7 protection is widely perceived as the fastest and best way to get out from under unmanageable credit card debt. While it is true that filing for bankruptcy can help discharge credit card bills, there are some basics that every consumer needs to know before relying on bankruptcy as a debt relief measure.
In this post we will give you the basics so that you can evaluate whether bankruptcy is a good solution to your credit card problems. Please also be sure to browse the related posts section of this page for additional information.
That’s the number one rule when it comes to unsecured debts like credit cards debts and medical bills, they are dischargeable in bankruptcy. When you file for bankruptcy, all of your unsecured debts are eliminated, meaning you do not legally owe these bills any longer. Credit card companies who choose to pursue you for old, discharged debts will do so in violation of the law and will be subject to sanctions by the bankruptcy court. Furthermore, unlike debts that are forgiven through private negotiation with a lender, there is no tax liability for debts that are discharged in bankruptcy.
This is an area where consumers get tripped up. After bankruptcy, The credit card companies are required to report discharged debt as having a ZERO balance. It is often necessary to check your credit report and confirm its accuracy after your case closes.
While the general rule is that credit card debt is easily eliminated by filing for bankruptcy, fraudulent activity can jeopardize your entire bankruptcy discharge. Using credit cards for luxury purchases prior to bankruptcy creates a presumption of fraud which can be difficult to overcome. Don’t use credit cards after meeting with a bankruptcy attorney unless you’ve decided not to file. The bottom line is any use of credit cards with the intention of not paying the debt back is fraudulent. The bankruptcy code protects debtors who behave in good faith and punish debtors who to try to game the system. For more information see: Using Credit Cards Before Bankruptcy is a Big No No!
All debts including credit card debts, must be disclosed in your bankruptcy petition. This means that you cannot keep any credit card that has a balance “out of your bankruptcy”, it must be disclosed and will be discharged along with the rest of your unsecured debts. Credit cards with zero balances do not create a debt obligation and are therefore not required to be disclosed in a bankruptcy filing. For more information see: Can I Keep a Credit Card Out of Bankruptcy?
Believe it or not yes. Creditor companies often send debtors offers for credit cards after they filed for bankruptcy knowing that it will be 8 years before they can file for bankruptcy again. Additionally, bankruptcy will illuminate all of your unsecured debt making your debt to income ratio more attractive to lenders who see that you now have the ability to take on new debt. This is not to say that filing for bankruptcy is good for your credit, because it is not. However, consumers emerging from bankruptcy commonly receive offers for cards in the mail very soon after their bankruptcy case has closed. For more information see: Can You Keep a Credit Card After Filing for Bankruptcy?
The bottom line is that as long as you’re acting good faith credit card debt will be discharged in a bankruptcy filing. In fact, one of the main reasons why consumers are forced into bankruptcy is high-interest credit card debt. If you’re facing credit card bills that have spiraled out-of-control, it is never a bad idea to meet with a bankruptcy attorney to discuss your options.
If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.