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Archive for September, 2008

What are the aftereffects of a bankruptcy?

Sunday, September 21st, 2008

Filing for bankruptcy can be a lifesaver for an individual or company caught in a bad debt situation, but it can also follow around after you later and impact on your life for many years. Prior to taking such a step, it is wise to research other available options to avoid a bankruptcy, if possible. There are many companies that can assist you in preparing a debt repayment plan that you can afford without going to the extremes of a bankruptcy. These companies do collect a fee for their services, but oftentimes can reduce your debt by a substantial amount. There are some restrictions, such as the amount of income you make and the value of any property you own, which will affect whether or not you are eligible for a repayment plan.

However, if filing for bankruptcy cannot be avoided, you should consult with a legal professional to determine which chapter is the best for you.

You should also know that once you file for bankruptcy, you will be protected from continual collection attempts by the “automatic stay” that is put into effect upon filing. This also includes existing lawsuits, auto repossession and wage garnishes. You might even be eligible for money damages against any creditors that continue to attempt to collect from you after filing.

This automatic stay is in effect until your bankruptcy matter is completed. However, be aware that there are circumstances under which a creditor can apply for and obtain a Court order granting their relief from the stay, as in the case of an existing lawsuit that may be close to final disposition. The creditor would need to make a motion requesting the relief and it would be ruled on by a judge.

Once you have filed for a bankruptcy it is, obviously, much more difficult to obtain credit of any kind. For instance, should your car breaks down necessitating that you purchase a new vehicle, you might have difficulty. It can be nearly impossible for someone presently in bankruptcy or just after the discharge of a bankruptcy to obtain a car loan, and if you can get a loan, it is often a ruinous rate of interest. However, once your bankruptcy is discharged, a car loan is one of the best ways to reestablish your credit, provided you are consistently on time with your payments for at least a 6-12 month period.

A bankruptcy will remain on your credit history for seven years and can create issues when attempting to obtain credit for at least that time frame. Furthermore, there are more and more credit reporting services available, and there is nothing that requires them to stop reporting your bankruptcy after the seven years have passed. Therefore, once your bankruptcy has been discharged, it is a good idea to get regular credit reports from several different agencies to determine the status of your credit score. You may also want to write to the different agencies upon completion of the seven years to request that they remove the bankruptcy information from your credit report.

What are the different types of Bankruptcy?

Sunday, September 21st, 2008

What are the different types of Bankruptcy?

There are four different types of Bankruptcy, Chapters 7, 11, 12 and 13, based on their respective chapters in the United States Bankruptcy Code. The type of Bankruptcy one would file depends upon their status, as well as other factors.

An individual or business wishing to erase excessive secured and unsecured debt would file a Chapter 7. This is the most acute form of bankruptcy and is generally preferred when people have a lot of unsecured debt, and little or no property. Under a Chapter 7, all non-exempt assets are liquidated, unsecured debts are terminated and any secured debts are paid. If there are additional funds after the payment of secured debts, unsecured debts are then paid. In 2005, some changes to the Bankruptcy code were made and applicant must now pass a “means test” to determine their eligibility. In order to file Chapter 7, you must earn less than the average income of your state or, if you earn more, your excess income is insufficient to cover the cost of your debt AND repayment of 25% of unsecured debt over a 5 year period. Not all debts are discharged under a Chapter 7. Alimony or child support judgments and any state or federal tax owing are exempt. Also, if you own and keep your home and car, those payments must be made.

The most complex form of Bankruptcy is the Chapter 11. This filing is most often the type filed by large businesses who find themselves in excessive debt. An individual can file Chapter 11, however, it is generally considered more for corporations who will create a reorganization plan to pay back their creditors while the business itself continues to function. In a Chapter 11, the corporation or individual will retain control and ownership of all corporate assets during the course of the bankruptcy. Prior to the changes made in 2005 to the Bankruptcy code, businesses could take all the time they needed to reorganize and create a payment plan. Now, however, they are subject to a 120-day time limit by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, and if they do not submit their plan within that time, their creditors can submit the payment plan.

The Chapter 12 Bankruptcy deals only with farm owners, who are able to own and control their own assets while they work out a payment plan with their creditors.

Finally, the Chapter 13 Bankruptcy is much like a Chapter 11, however, it is used by individuals or small businesses, who will still control and own their assets while repaying their debt. Generally, a three to five year repayment plan is created and a specific portion of their debt is discharged, based on the debtor’s income. Basically, the plan reduces the amount of debt and the amount of the payments due, in order to allow an individual to pay back their creditors within a certain time frame. This plan is preferable to a Chapter 7 as an opportunity for a debtor to pay back their debts rather than write them off, as it can make it easier to then reestablish credit. In order to be eligible, the debtor must have a regular source of income, less than $250,000 in unsecured debt and $750,000 in secured debt, and their debt must be for a fixed amount that is not subject to other conditions.

What is a DBA?

Sunday, September 21st, 2008

The initials DBA, which is the term for an assumed business name, simply stand for “doing business as.” A DBA, sometimes called a fictitious business name or trade name, is used by individuals who wish to open bank accounts or to receive income under a name other than their legal name. The term “legal name” is used here to mean one’s personal name, such as “John Smith.” Filing a DBA is much less expensive than incorporating, and may be all that is necessary for the small business owner. For instance, if John Smith wishes to own and operate a pizza restaurant, instead of creating a corporation for the entity “John’s Pizza,” he can simply file “John Smith DBA John’s Pizza,” and he is in business.

While the main advantage of a DBA is the cost savings for a small business, the main disadvantage is personal liability for business debt. If your business fails, you do not have a corporate umbrella to protect your personal assets. This means that you can be made liable personally for the debt of your business and could lose any personal assets that are not otherwise protected. Another disadvantage is that you do not have any legal protection for the name you have chosen and some other entity can open a business under the same name.

However, while filing a DBA does not necessarily protect your chosen name from the use of others, it is still a good idea to check through other corporate and DBA names before choosing a name for your business so that you do not choose a name that has been used by several other businesses in your area. Remember when choosing a name that your business name is an important asset in branding your product or service and you should be sure to choose wisely. Obviously, the best names will be easy to pronounce and easy to spell, but not necessarily very common. Be sure to pick a name for the long haul, because you don’t want to have to rename your business once you’ve got everything in place.

Once you have a DBA, should your business grow, you may want to incorporate at some point. Also, if you intend to open up several business ventures or franchises, you could set up a parent corporation and then file a DBA for each of the smaller businesses. Obviously, this would be much less expensive than incorporating each franchise separately. While it is not always necessary to seek the advice of an attorney to file a DBA, if your plans include an eventual incorporation, you may want to consult an attorney prior to initially setting up your DBA.

Obtaining a DBA is handled differently in each state and is sometimes accomplished at the county level. Therefore, the necessary forms and fees are different depending upon where you live, so you will need to contact the Secretary of State or other state agency to determine exactly what to do to register your DBA. There could even be a requirement to publish your new DBA in a local paper and file proof of the publication.

What is Premises Liability?

Sunday, September 21st, 2008

When determining premises liability, it is important to consult with an attorney, as the laws can vary from state to state. The basis for premises liability law rests in responsibility for certain injuries to an individual which occur on the property, or premises, possessed by someone else. These can be simple “slip and fall” cases or be more involved. However, as the law now tends to favor the premises owner more than formerly, it is a good idea to have your case assessed by an attorney who specializes in such matters. The owner of the premises should also be sure to file an immediate claim with his property insurance carrier, who may hire an attorney to handle any lawsuits.

Determination of the person who possess the premises or real property where an injury occurs in based on several factors, such as whether or not the person occupies or has been in occupation of the land with intent to control it, whether any other person has subsequently occupied or controlled the property and/or if said person and no other person is entitled to occupy the property.

Under the law, the status of the injured party must be determined. This could be as an invitee, a licensee or a trespasser. The duty of the premises possessor varies depending upon this status and is different in various jurisdictions.

The term invitee means that the injured party was invited to be on the premises for some commercial benefit to the premises possessor, such a customer in a grocery store, where the invitation is implied, or as a vendor restocking merchandise, where the invitation is express. The owner of the premises owes invitees the highest duty of care in such a situation, and must take precautions to warn or protect them from harm while on the possessor’s property, if the risk of harm is unreasonable and the possessor knows of or should know of the risk of harm to an invitee. Therefore, the possessor’s duty could include periodic inspection of the premises to ascertain any hazards to invitees.

A licensee is an invited guest to a premises by the possessor for personal, rather than business or commercial purposes. For instance a dinner guest would be a licensee. The licensee must prove the following to hold the premises possessor liable for injury on the premises: That the possessor knew or should have known of the risk and should have expected that the licensee would not know; that the possessor failed to make the condition safe or to appropriately warn of the risk; and, that the licensee had no way of knowing of the risk. For example, if the owner of the property is aware that there is a hole in his yard that is not discernable to anyone looking, he allows the licensee to walk through his yard without warning, and the licensee is injured by a fall, the homeowner may be liable for those injuries.

Although a trespasser is on the possessor’s premises without either express or implied invitation for purposes of their own and not in any way performing a duty to the owner, the possessor can still be liable for injuries incurred. While a possessor does not have to establish unlawful intent, they must prove that they were unaware of the trespassers, in which case they do not have the duty to warn trespassers of any risks on the property. However, if they are aware, the possessor may be obligated to warn of risk and take care to maintain the safety of trespassers.

A premises owner is also generally responsibility for maintaining public walkways, etc., located on and around their premises. Also, these duties can not typically be delegated to anyone else. For example, if a property owner has hired a company to provide maintenance on his parking lot and a customer is injured in a fall, the property owner remains liable for the injury because it occurred on his property.

Understanding Private and Public International Law

Sunday, September 21st, 2008

The term International Law refers to the implicit and explicit agreements binding nation-states, and which system adheres to set values and standards. The difference from other legal systems is in the fact that it applies to international issues between nations or nations and private individuals. Under the banner of International Law, are Public International Law, Private International Law and Supranational Law.

This concept of International Law has existed for hundreds of years, but the more modern understanding of International Law was developed in the mid-19th century, after two World Wars caused the creation of the League of Nations, the International Labor Organization and other organizations responsible for developing standards for international agreements and the conduct of war. The League of Nations was formed as a result of the Treaty of Versailles, after World War I to assist in settling international disputes. However, the advent of World War II proved its lack of overall success and the League was replaced by the United Nations after the war.

The United Nations was created on June 26, 1945. Although there are other international organizations, the UN has become the most influential. Its purpose is to maintain security, promote peace, and generate friendly relations and cooperation internationally. The organization that provides judicial intervention in UN matters is the International Court of Justice.

Public International Law is that area of law that revolves around the relationships of subjects of the International Law, such as the United Nations, maritime law, international criminal law and the Geneva Convention. This also includes sovereign nations and, sometimes, movements within a nation for national liberation or even armed insurgency. These matters are governed by custom, consistent practices, or agreements, such as treaties. On occasion academic or expert legal opinions, as well as accepted standards of human behavior can also be used.

Private International Law (also known as conflict of laws) regards jurisdictional questions, such as where a case may be legally heard and what jurisdictional laws apply to the issues at hand. Private International law deals with conflicts that are between private individuals, and not between states, as in Public International Law.

Supranational law relates to the rights of different sovereign nations and how they are limited as to each other. What Public International Law differ from Supranational Law is the fact that in the Public International Law, nations have surrendered their decision making rights internationally to an outside common institution, like the United Nations.

One example of a situation where sovereign states have created a shared system of governance for the express purpose of social and economic benefit is the European Union. It is not, however, truly supranational, as the member states have retained the option to withdraw from the system at will. Another group of sovereign nations that are in the process of creating a form of supranational law is the East African Community, which includes the states of Kenya, Tanzania, Uganda, Burundi and Rwanda. Their goal is have such a system of governance in place by 2010.

Understanding the Lemon Law

Sunday, September 21st, 2008

When a purchase fails to meet quality and performance standards, we call it a lemon. The Lemon Laws, which is the common nickname for the various state laws, provide legal remedies to consumers who purchase cars, RVs, boats, motorcycles, wheelchair and computers that turn out to be lemons. The federal lemon law, more properly the Magnuson-Moss Warranty Act, can cover purchases in any state. Even if your purchase is stated upfront as being in “as is” condition, you may still be eligible under the federal or state lemon laws to pursue damages. However, as state laws vary, your state may or may not cover used or leased vehicles. The term “vehicle” is being used to mean any article purchased, as listed above.

Under the laws of your state, your rights may surpass those rights awarded to you in any purchase contract warranties. California law and federal law cover mechanical failures, but that may not be the case in your state. You should consult an attorney if you wish to pursue a claim under the lemon laws. Be advised that your attorney fees may be covered by the seller or warrantor, if you are successful in your claim.

Not all purchases are covered under the lemon laws. You may be able to sue for other damages under certain situations. For instance, you may have a claim for breach or warranty if there was manufacturer warranty still in effect on a vehicle at the time of purchase or if you purchased an extended warranty. Some used vehicles have been “certified” by the dealer which may increase an existing warranty or add a short warranty under which you may have a breach of warranty claim. These claims would not fall within the scope of the state lemon law, although they maybe covered under the federal law.

There are also consumer protection laws that are not part of the lemon laws and which may also cover a purchase. If there is no warrant existing on the purchase, you may be eligible for damages as a result of violations of these laws. An example of such a situation would be if there were issues with the vehicle which the seller know about but did not disclose, like if there were previous mechanical problems, if the vehicle had been in an accident, in a flood or was salvaged, if the odometer had been tampered with, if the vehicle had been stolen and/or rebuilt, or if the vehicle was previously a police car, a taxi or a rental car.
There are also technical service bulletins, issued by manufactures, which can tell you if there may be a potential issue with a particular vehicle or product. Sadly, dealers are not obligated to share that information with you upon making a purchase. Therefore, it is wise before making a purchase to be sure to do your homework. No one can be certain that what they are getting is what they paid for all the time, but there are steps you can take to make sure that you aren’t being taken by an unscrupulous sales person.

Does Video Surveillance in the Workplace go too far?

Sunday, September 21st, 2008

Privacy rights for employees in the private sector are essentially not realized in a legal sense. This is due to the fact that employers must protect themselves, their office, their equipment, any trade secrets, client data and their employees from theft or vandalism. Employers also have a right to prevent employees from misbehaving on the job, committing illegal acts or injuring others, so that the security of the company comes foremost, to the detriment of the individual rights of the employee for privacy.

As a result of that, it means that an employer can implement video surveillance without making the employees aware that they have done so. Most employers however do, in fact, inform their employees, simply as a means of protecting the company and the employee in the case of lawsuits from employees. Generally, the laws in most states regarding employee privacy rights, if any laws even exist, do not allow such video surveillance in areas where reasonable privacy can be expected, such as a restroom or changing area. If an employer has placed video surveillance in an area of the office that you feel is inappropriate, you have the right to question such surveillance practices or even sue the company if you feel that your privacy has been violated. However, the law is more generally on the side of the employer, who, as stated, has the right to protect their company and other employees as they see fit, even at the expense of employee privacy.

While employers can observe employees actions within the office by video, not just what they are doing but where they are going as well, most employers also monitor their employees’ use of office equipment. This can consist of Internet usage, including what sites they visit and any information they may post on websites and/or blogs, as well as phone usage, including conversations and what numbers are dialed.

For employers, this type of surveillance can do more than one thing. Firstly, it provides a cost savings to the employer, as it can act as a theft deterrent. Further, video surveillance of employees can ensure that they are effectively performing their jobs, handling their time on the job efficiently, and working to their full potential for the company. This is the type of behavior that the employer obviously wants to see, but they are also watching for other behavior as well.

For employees, video surveillance can be a friend or a foe. Obviously, for the model employee, being observed while working can be a plus, as this employee exhibits the behavior the company desires. Also, being watched can protect an employee from false accusations of misdeeds or theft. However, for those employees who may want to spend more time playing than working, it’s not as much of a benefit.

When hiring, an employer should inform new employees of any and all employee privacy rights policies. This will ensure that an employee will not unknowingly violate such policies, as some violations may result in immediate dismissal.

The Lemon Law and Leases

Sunday, September 21st, 2008

The Lemon Laws, which is the common nickname for the various state laws, provide legal remedies to consumers who purchase cars, RVs, boats, motorcycles, wheelchair and computers that fail to meet quality and performance standards. The federal lemon law, more properly the Magnuson-Moss Warranty Act, can cover purchases in any state.

State laws vary, so that a leased vehicle may or may not be completely covered under the Lemon Laws. Lease agreements themselves can be very tricky and confusingly worded. As a result, there could be language that would adversely affect your ability to recoup losses in a lemon law damage claim on a leased vehicle. Prior to commencing a claim under the lemon laws for a leased vehicle, you should consult an attorney who can assist you in determining whether or not you have a legitimate claim under the lemon laws.

It can be difficult to establish damages in a leased vehicle lemon law claim. This may be partly due to the fact that under a lease, there is little to no equity in a purchase and, therefore, limited damages. If you do lease your vehicle and think you have a lemon law claim, there are a few things you should know. First, your damages are generally limited, as mentioned above, based upon how much you have actually paid into the vehicle at the time of the claim.

Secondly, you should bring any lemon law claim earlier in your lease, rather than later, as the less time you have left in your lease the more likely your claim can be ignored until it “goes away” with the termination of the lease. Once the lease has expired and you have returned the car, you can continue with the claim, however, it is not worth much at that point and it would be wiser to settle.

Another issue that can negatively impact on your claim is the mileage on the leased vehicle. You will have a much weaker claim should you have significantly exceeded the mileage allowed under the lease.

Also, if you do receive damages, you will still have to pay off the lease or it can adversely affect your credit rating. Ideally, your lease should be completely paid for in the claim; however, in some cases you are paid only for the residual value of the vehicle. The residual value is the purchase price of the vehicle at lease termination. Additionally, should you settle your claim, you may get even less.

Claims for lease or finance fraud are not handled under the lemon laws. There are many types of unfair and deceptive practices that fall under the banner of lease fraud, including abusing the lease terms, additional costs that were not explained, manipulation of residual values, early termination penalties that are excessive, and other deceptions perpetrated by sellers relative to the transaction. If you feel you have claim for fraud, you should contact an attorney who can assist you in filing such a claim.

What is Incorporation?

Sunday, September 21st, 2008

Incorporation is the creation of a legal entity, or corporation, for the purpose of doing business in a particular state. Companies and/or individuals may chose to incorporate their business as a means of protecting personal assets, such in the case of bankruptcy or other bad debt created by a business. There are various forms of incorporation, each with different rules and benefits, and the laws governing each type can vary from state to state. Prior to incorporating, the individuals or company involved should discuss all the ramifications of each type of incorporation with an attorney and/or an accountant to determine which type of incorporation will best suit their particular needs.

While it is not absolutely necessary to hire an attorney in order to incorporate, it is in the best interest of the individuals involved if they do seek the advice of both an attorney and an accountant, prior to incorporating. The various forms of incorporation can all require different types of annual reporting, which could have an affect on the corporation, and it is wise to be fully aware of both the advantages and disadvantages of the type of incorporation that is best for your business.

There are various legal benefits to incorporating, which include protecting personal assets, establishing retirement funds, lowering tax rates, raising funds through stock sales, and establishing credit or building a separate a credit rating. Furthermore, ownership is easily transferable to others and the existence of a corporation is not in any way affected if a director, officer or shareholder dies or resigns.

Various entities may incorporate, that is individuals, businesses, non-for-profits, and different types of clubs or even government bodies, such as a cities or towns. These corporations may take different forms, such as standard corporation, partnership, limited liability company, or limited liability partnership, and be publicly traded or privately owned.

The first step in becoming incorporated is to determine that the name you have chosen is available for incorporation in your state. This is done by contacting the corporate filing office, such as the Secretary of State or Corporations Commissioner, as well as federal and state trademark registers. This is another reason why incorporating through an attorney is a good idea, as they will handle that for you.

Next, the corporation must file Articles of Incorporation. The rules for filing can vary by state, but the basic outline of the Articles of Incorporation would include the purpose of the corporation, the name, the address of the corporation’s principal place of business, contact information for the agent of the corporation, and the number and types of shares of stock. The fees for such filing also vary depending upon the state in which the corporation is formed.

A corporation must also prepare and file Corporate Bylaws, which will outline important details, to include dates for annual shareholder and/or officer meetings, notification instructions, information on who can vote, and other facts necessary for shareholders and officers of the corporation. At the annual meetings, or any special meetings, held by the corporation, the corporate Secretary is obligated to take and have transcribed minutes of the meeting, which are to be filed and maintained in the corporation’s corporate book.

What is an LLC?

Sunday, September 21st, 2008

A Limited Liability Company (LLC) is a form of corporation or corporate entity that allows the various individuals involved, as well as the corporation as a whole, to limit their liability as against each other. Simply put, this means that if the LLC accrues debts that it cannot pay, each member of the company is not individually responsible to cover those debts. Similarly, if the company or an individual in the company commits a crime, such as fraud or theft, the other members are more protected from those actions than they would be under a traditional corporate structure. In a conventional corporation, each member, as well as the corporation, can be made liable for the actions and/or debts of the individual members and/or the corporation.

An LLC is a relatively new way to incorporate and the flexibility allowed makes it more desirable for smaller or single-owner businesses, which may not have deep pockets. The LLC is the most flexible form of incorporation, other forms being the more traditional Corporation, S-Corporation, Limited Liability Partnership (LLP), Limited Partnership (LP), and Limited Liability Limited Partnership (LLLP). There is also the Series LLC, where a separate LLC is formed for different company assets, and the PLLC, which is a Professional Limited Liability Company, generally a group of licensed professionals (doctors, attorneys, etc.) who practice the same profession. The Series LLC is a very new form of corporation, and has been created as a way to protect each asset or business transaction, such as the purchase of real property, separately.

The members or owners of an LLC are not restricted in most states, meaning they can be individuals or corporations. Even other LLCs and foreign entities can be members of the LLC. There is also no limit on the number of owners or members of the LLC. It can have as few as one member, or as many as one hundred members, or more.

LLCs must file Articles of Organization with the secretary of state in the state they choose. Since state laws vary, some of the information required, as well as the filing fees for the Articles of Organization, will be different from state to state, however, the information generally must include company name, the name and address of a statutory agent, and a valid purpose for their business.

An LLC must also draft an Operating Agreement, which will outline the various rights of the members and the company. This document is incredibly important to the smooth operation of the LLC, and should be carefully considered and worded so as to appropriately protect the LLC and its members. The Operating Agreement should also outline the way in which the LLC will be managed, either by the members themselves, or by another person or entity.

Clearly, one reason for incorporation as an LLC is for the tax benefit. The LLC can choose to be taxed in several different ways, as a Sole Proprietor, as a Partnership, as an S-Corporation or as C-Corporation. This flexibility is just another way in which the members of the LLC are able to achieve their desired benefit.