Topics of Interest

Bankruptcy filings in the federal courts rose 31 percent in calendar year 2008, according to data released in March by the Administrative Office of the U.S. Courts. The majority of bankruptcy filings involve non-business debts. Chapter 7 alone, accounted for a 43% increase in bankruptcies for 2008. The prognosis for 2009 isn't looking much brighter!

If you are considering bankruptcy and do not know if you would make a good candidate for filing, please call us or your trusted legal advisor as soon as possible to obtain the necessary information you need to make an informed decision. 626.683.8869

Question #1:
My wife and I run small business and are going thru a divorce. She has asked if i am willing to take over the business and the $65k worth of debt that has accumulated. One of those debts is an SBA loan. I'd like to know if this type of loan can be included in a bankruptcy if I can't handle all of the debt?

Answer:
It can be included, but you'll have to see what it was secured by, if anything--the SBA may be entitled to those assets if it was secured. Also, if your wife agreed to be responsible for the loan as well, the lender will look to her for repayment unless she also files for a bankruptcy. Have an experienced bankruptcy attorney review the debts, assets and personal guarantees to see what the effects of a bankruptcy would be.

Question #2:
We are a sole proprietor business in construction. I am being sued in court, cannot afford to finish case with high lawyer fees. If I represent myself and lose will bankruptcy protect my home, my rental property, and the plaintiffs award approx. $70,000 be erased. My home has no equity, my rental is upside down- no equity. Will bankruptcy forgive the $70,000 altogether. My wife and I make approx $60,00 yr, right now that goes all mortgages, second on house, payback 401k loans. No construction business income at all, license not active since 2008.

Answer:
It sounds like you'd qualify for a Chapter 7 bankruptcy and be able to keep your real estate, but you'd have to have a bankruptcy attorney review your details to be sure.

There are some exceptions to the bankruptcy discharge that your plaintiff could try to claim in bankruptcy court, so these should be reviewed as well before you make a decision to file.

For more information, please contact Chris Johnson 626.683.8869 or cjohnson@rrjlaw.com

Economic Downturn and Divorce

A plunge in the net worth of your spouse may indefinitely postpone the "break-up" decision from being made any time in the near future. An increased chance of wading through the trauma, drama and financial torture of a divorce is apparently not the top thing on many "to do" lists.

Is it a benefit in this downer of an economy to remain together?

Issues that according to experts, typically destroy a relationship: fights over money, sex and children have a pretty good chance to increase in this current climate. So, will people hold tight to what they have, afraid of the unknown? Tethered to a situation that is draining them mentally and emotionally? Or will they decide that no matter what their financial situation is that they'll cut their losses and bolt for a different life?

What is clear is that today's tough times are affecting how divorces are being handled.

Take the housing market now, in some places prices have dropped about 40%, so who wants the house now? Now people are fighting over who has to TAKE the house.

People laid off from jobs have trouble paying child support. And some are divorcing and continuing to live together afterwards, because they can't afford two residences. Your "newly" ex-spouse as your roommate, good times!

What retirement funds? Credit card debt, anyone? The list goes on...

And some people are going through their divorce without attorney representation.

By the time couples come to us, they've pretty much run out of options.

Whether you can financially afford to get divorced now, you should still meet with an attorney and find out what legal options are available to you. When seeking a divorce, work with a financial advisor or a trusted 3rd party with the skills to make the best of your existing financial situation.

Keep in mind that it pays to know what you want and be willing to compromise ahead of time, prior to filing for divorce. Otherwise, divorces can be very expensive. And divorces in bad times tend to be uglier than divorces in good times.

According to calculations based on census data by the Web site Divorce360, a contested proceeding that goes to court, for a couple with at least one child can expect a divorce to cost anywhere from $53,000 to $188,000. The cost range does include attorneys’ fees, financial advice, counseling and real-estate costs for buying or renting separate homes.

Remember, if you are considering a divorce, the long-term cost of failing to seek competent legal advice can be much worse than a relatively inexpensive short-term cost of having an effective attorney representing you.

Please call or email us, we are here to help: cgreene@rrjlaw.com or 626.683.8869

Probate, Trusts, Wills & Estates

Someone said to me recently, "Death is a recession-proof business." Interesting thought. And one that brings to mind the two things that you can count on, "taxes and dying"....yep!

There are hundreds of versions of what we can expect with "death".

Many people have not prepared or planned properly for this inescapable event. Unfortunately, it isn't so much the person off to the pearly gates that has the issue, it is instead the family left behind.

Probate means to "Prove the will". It is simply the formal legal process one goes through to obtain approval from the responsible court, that a will is authentic and accurately represents the wishes, or "will," of the deceased.

If you prepare and create an estate plan, YOUR FAMILY can bypass this procedure. Today we have a few questions related to the subject.

Chris Johnson Esq. answered the following submissions:

My sister is the executor of my father's will. She and I are the only beneficiaries. We have been going thru the probate process. She received the letters from the Court to act as executor with full authority in April 2008. We have since completed and submitted all the appraisal paperwork and are coming up on the 1 year mark where the Court wants a status update. What does this paperwork entail? Also, my sister and I agreed to share all the expenses on the property in the estate, taxes etc so she went ahead and distributed the cash and stocks and other requests per the will last december. We didn't notify the court. Was this a mistake. Can I submit it now? If we decide to file a petition for final distribution, how do I let the court know that some of the assets were already distributed. I am totally confused as to whether this was a mistake and whether it can be rectified. Please help.

Answer:
The status update would give the court some detail regarding what has happened in the estate and when it's ready to be closed.

It is a violation to distribute the assets without a court order to do so, but it does happen--you can show the court what was distributed, along with a consent and waiver from both of you, and a petition for distribution of the rest of the assets. As you are the only beneficiaries who would be affected by the distribution, the court would likely view it as a "no harm, no foul" situation.

You'll want to get something filed in the right format, though, as courts often set "Order to Show Cause" hearings with subpoenas to appear if nothing's filed before the one-year deadline.

Next submission:
i have a document with my brother's property. He has 2 stores and writes owner Nick P.(my brother), but it has an owner name too of spouse, Maria P. (no children)

With no will........my brother died last week .......everything goes to spouse ??? or i can take something????????

how i will know if property is separate..??? i live in europe he died in california

Answer:
The answer depends on the agreements you have with your brother, along with the titling of the assets--an attorney can review the specific documents and give you a more specific answer. It's also possible you could have a creditor's claim against your brother's estate, but collecting on this also depends on how his assets were titled.

If you need help with estate planning or are in the midst of a probate process with legal questions, please contact us. We are experienced and can help you now. 626.683.8869 or cjohnson@rrjlaw.com

Yes to annulment?

Happy Smiling Faces...













We can keep you smiling and able to afford more than just the weekly trip to McDonald's as a night on the town!

Today's post covers annulment. Many people are confused as to what constitutes grounds for an annulment in the state of California, so we thought we'd clear the mystery up a bit for you.

A question was posed to two of our attorneys recently. The question was on annulment in California. Here is the question:

I got married in the County of San Diego less than a year ago. I just found out that my husband has not filed tax returns, or reported any income in at least the last 13 years and in order to protect myself from prosecution I will need to extricate myself from this marriage as soon as possible. Would this constitute fraud as it relates to the definition for an annulment in this state?

Colin T. Greene Esq. our resident family law expert and attorney answered: Probably not. The fraud looked for under Family Code § 2210(d) is fraud that goes to the basis of the marriage -- the intention to be married. Typically, fraud of a purely financial nature is insufficient. You'll need more.

And Mark Russakow Esq. also answered: This is not grounds for annulment according to case law on point. You also when getting divorce should make sure you have an innocent spouse exclusion on your settlement agreement for tax issues. Good luck. Also see Colin T Greene answer of our firm. (We even work as a team answering questions)

So, what constitutes an annulment in the state of California?

An annulment (or "nullity of marriage" or "nullity of domestic partnership") is when a court says your marriage or domestic partnership is NOT legally valid. A marriage or domestic partnership that is incestuous or bigamous is never valid. Other marriages and partnerships can be declared "void" because:

• of force, fraud, or physical or mental incapacity;
• one of the spouses or partners was too young to legally marry or enter into a domestic partnership; or
• one of the spouses or partners was already married or in a registered domestic partnership.

Annulments are very rare. If you ask to have your marriage or domestic partnership annulled, you will have to go to hearing with a judge.

You can find out what you need to consider when filing for an annulment or a divorce, please do so by calling us here at RRJ 626.683.8869 or email cgreene@rrjlaw.com. And to do some research on your own, please also consider this website: http://www.courtinfo.ca.gov/selfhelp/family/divorce/divlinks.htm

Business Law: Q&A

Welcome back!

Legal Questions?!

Please feel free to submit it here

Today's questions have been answered by Mark Russakow Esq.

The topic of this post is Business Law. Please feel free to leave comments on this post and we will try to answer them in a timely manner.

Question:
I work for a manufacturing subsidiary of a larger distribution company. I was given access to the distributor's customer database to assist my work. I have printed their customer list with contact names and numbers and parts list and have given this info to a friend who is starting a competing company. Is this a crime? They knowingly gave me access. What if I take the info and use it myself?

Answer:
You have some issues that may be a problem. The customer lists may be called a "trade secret" and you also may be sued under the uniform trade secret act or Business and Professions code section 17200 for unfair competition. You and your friend should NOT use this list. You do not go to jail, but you can be sued in civil court for lots of money. Not a good idea to use this list.

Question:
I have sued a defendant in small claims for colliding with my car while it was parked and causing damage to it. Her insurance co. has refused to pay my damages.

Can her insurance co. defend her at the small claims trial? Or must she defend herself?

Answer:
No. She must show herself as lawyers are not allowed in small claims court unless they are representing a corporation. She is not a corporation, and the insurance company is just paying the coverage, and is not the defendant.

Question:
we have an employee that was since fired. we want to file a claim for misappropriation of funds. he was with us for 5 months and took 4 weeks of vacation and overpaid himself $3500. he was an interim president so signed his own checks.

how much can we sue him for? just the value of the amount stolen or damages as well? jail time? this is in response to a frivolous claim he is filing against me.

Answer:
You can sue him for breach of fiduciary duty as the president of the company. As an officer, he must not take funds from the company and he breached his duty.

Question:
We just discovered that One vendor that we are about to sign a contract with is a CA corporation and his corporation status is Suspended. What does it mean if we sign a contract with such a vendor. Do we the client corporation, land in any trouble?

Answer:
It means the corporation is not entitled to be afforded the protections of California Law. You will not get in trouble, but I would have the officer of the corporation sign as an individual. Usually suspension happens when corps fail to pay the yearly fee. It can easily be fixed by paying the state the fee.

Question:
We filed a lawsuit for breach of contract. It's been 30 days and the defendant has not responded. I was told that in CA, as a courtesy, we wait another 15 days before asking a default judgment because otherwise, judges are not inclined to accept the default. Is it true? thanks

Answer:
Well you can request a default at 30 days, but usually the defendant will answer a few days later and make your request moot. Most courts do give a little slack. So I guess there is no rule about 15 days, but generally a good idea if you do not want to waste time and money.

Question:
I am starting a general partnership with two friends, one of whom has a history of debt. Could debt collectors come after me if I am linked to this person through our business? Could money be taken from our business to pay his debt?

Answer:
It depends. If the judgment debtor attaches an asset in his name and it is being used by the business yes. Also they can try and get his part of the partnership. So, you need to be careful how you take ownership of assets and the bank accounts. It is risky.

Question:
Wife owns a business with a partner. We are obtaining a divorce. She won't give me any info of profit and loss except a loss to our income tax person. Am I liable for this & how do I get released from liability?

Answer:
Once you file for divorce each side must turn over documents as part of the process or the court will order her to do so. You are responsible for actions she took during your marriage and any liabilities unless you had a pren-up or the liabilities are backed by her separate property during marriage. You absolutely should be entitled to this information.

Call or email us, we are here to help! mrussakow@rrjlaw.com or 626.683.8869

Fashions of the Law

When you think of a law firm, what comes to mind?

Maybe Words like: Stuffy? Stodgy? Sharks? Sleazy? Slimy? The "S" list goes on.

Many people prepare for their visit to a law firm with some nervousness, trepidation and a sense of impending doom or dread. You figure you are about to get screwed by a guy in a rather expensive suit.

The eat em' alive and corporate mentality may exist, but not at RRJ. Well... first off, we prefer most of our food cooked and secondly, who the hell wants to sit in an office meeting after meeting in a suit?! Not us.

We aren't shy or bashful, so let's just state the obvious: We're pretty damn cool, we ain't your Daddy's law firm and we have a great ratio of winning and/or settling many of our cases.

Plus believe it or not, people like working here. Yup, were all that and a lobster dinner too!

Let's take a moment though and talk about fashion. You may enter our offices and see many fashions you see on the street,t-shirts, jeans, fake eyelashes, maybe a fetish or two, brightly-colored mini skirts and copious amounts of bracelets, rings and necklaces.

The New York Times recently said, "The combination of black and white is one of fashion’s most stunning effects, and is easily put together." We agree! And of course we take it one step further...a lot further, crushed purple velvet anyone? Isn't that all eco-friendly?!

Check us out on our FaceBook Page at http://twurl.nl/tqlwer , we are apparently ONE BIG fashion statement. Post pictures of fashion where you work, no matter where it is or what you do! We'd love to see it!

If you want to make a statement or have interest in checking out more than our fashion, contact us at mrussakow@rrjlaw.com or 626.683.8869

Questions and Answers on Bankruptcy

Today, we are posting Questions with Answers on Bankruptcy by Chris Johnson. Please continue to ask questions about this topic here on our blog. You can also check Chris out at: http://blog.probate-litigators.com

Question:
Can you filed bankruptcy on items that have been charged off?

Answer:
Yes

Question:
If my contractor filed bankruptcy in the last week, will the court
hold my insurance money, which is to rebuild and is in both our
names? And what if my contractor uses a different construction
name than he did to file bankruptcy, does that make a difference
since it is in fact the same personal name at the end.

Answer:
It's difficult to say without seeing the specifics of your situation, but if the contractor was holding money that didn't belong to him (your insurance money), you may be able to claim that as being outside the bankruptcy estate. If the amount is significant, I'd recommend using an attorney experienced in these matters, as deadlines in bankruptcy court are short and the rules are many.

Question:
My boyfriend is currently in jail and I've been paying for his car expenses (the monthly loan, insurance, and DMV registration). The car loan is in his name only. We've only had the car for a year and the payoff amount is around $30,000. So there is still 4 years left to pay on the loan. We don't know yet how long he will be incarcerated (case is pending), but obviously he isn't working and isn't paying his credit card debt or his personal loans (which total about $25,000). First question is should he file bankruptcy now, or wait? Second question is if he does file for bankruptcy, will I be able to keep the car if I continue making payments on it? Thank you.

Answer:
You'd have to negotiate a transfer of the loan to yourself if you wanted to pay off and keep the car, or a new loan to pay off the lender and put the car in your name--it may be easier to get a different car.

Regarding bankruptcy, it may be a good idea in his situation--the bankruptcy can go through even if he's incarcerated. It will require some extra coordination with the trustee assigned to the case, but it can be done. It would be worth a bankruptcy attorney's review of his circumstances to discuss the pros and cons of filing a bankruptcy case.

Question:
I am a 79 year old Grandmother who has accumulated 50K+ of CC debt over the past 20 years because of medical expenses and loss of job. I receive about $1,000.00 per month in SSI and can no longer afford the CC payments. I don't have any savings or retirement, own a home, car, or anything of substantial value. A Credit Counselor/Consolidator that was referred by one of her Credit Card Company's has advised me to file bankruptcy. Should I file bankruptcy?

Answer:
You are probably judgment-proof, meaning that if you just stop paying your credit cards and do nothing, there's probably nothing they can take from you and it will stop the creditors' collection attempts/ This would be the main benefit to your filing a bankruptcy. If your assets were to increase later, you'd also be protected.

Question:
I filed bankruptcy back in 2003 my common law partner was not in the paper work. Now creditors are after him and they are going to take him to court does he have to file separately? And can he still fill even though creditors have filled a law suit?

Answer:
First, although it wouldn't make a difference in this case, California does not have common law marriage or common law domestic partnerships. Certain obligations may arise after a long time together, but not under any "common law marriage." Thus, you may want to get legal advice concerning this issue sometime, as you may not have the rights and responsibilities you think you have.

That said, if your partner had co-signed for the debts, he will still be responsible for them even if you filed bankruptcy. So, he'll either have to pay them, file bankruptcy or negotiate a lower payoff with the creditors. First, though, you'll want to see proof from the creditors that he actually was a co-signer at some point and that he is legally responsible.

You can contact Chris directly at cjohnson@rrjlaw.com or 626.683.8869