One of the most difficult parts of the separation and divorce process is telling your spouse that you want a divorce. How you approach telling your spouse can set the tone for what is to follow; are you going to have an amicable separation process or will you be going to “war,” litigating every single issue in court? If you are conflicted about your decision to leave your marriage, you may wish to consult first with a marriage or family therapist, or a clergy member or an attorney, to assist you in making your decision. Once you take steps to separate, such as telling your spouse you want a separation and/or divorce, it may be difficult or impossible to reconcile, and you want to be sure that you are committed to your decision to proceed with the separation before taking the next step. Before you approach your spouse, consider carefully what you will say and where you will have the discussion. You want to be calm and discuss your decision in a way that results in the least amount of emotional damage to you, your spouse and your children. You should state your desires firmly and be direct, but also show respect and kindness towards your spouse in your discussions. This is not the best time to catalogue all the reasons your spouse “caused” this separation and you should not approach the conversation with anger. Now is not the time to blame or shame the other, but a time to announce your decision in a calm and business-like manner. Be prepared for your spouse to beg you for a second chance; think through how you will respond to his or her desire to go to or continue couples’ counseling, or his or her threats that you will never see your children again, or you will be cut off financially. Think through each possible response you are likely to receive from your spouse and practice in your mind how you will respond to threats, tears or indecisiveness from the other side. Also, be careful not to negotiate too many details relating to your separation at this initial discussion. In an effort to appease your spouse, you might commit yourself to terms of settlement that are not advisable or in your or your children’s best interest. If you feel uncomfortable discussing specifics of the terms of separation and divorce directly with your spouse, you should have your attorney make those offers of settlement at a later time. You should schedule a time to talk when you both have some uninterrupted time and your children are not likely to walk in on your conversation. Be sure your cell-phones are turned off or are on silent mode so you have each other’s undivided attention. For safety and comfort reasons, you may choose to talk to your spouse about your decision to separate in front of a therapist, if you and your spouse have been engaging in marriage counseling, or alone together but in a public place. You may want to schedule a business meeting with your spouse at a quiet public place, like a coffee shop, where each of you drive to the public place separately. You can then always leave separately if one of you becomes overly emotional, upset and/or angry. If the discussion becomes emotional or overheated, either of you are free to leave the public place and go to a safer place until the other spouse has calmed down. If you have hired an attorney before telling your spouse of your decision to separate, consult with your attorney about whether to tell your spouse that you have an attorney. After you tell your spouse you are leaving, it is possible that your spouse may change the passwords or codes to these accounts, and it may become more expensive and difficult for you to obtain copies before you separate. Once you inform your spouse of your decision to separate, he or she may take steps that make it difficult for you to obtain the information needed to negotiate a settlement. The file cabinet that previously contained the tax returns and bank records might soon be emptied. While you are entitled to this information if you have to file a lawsuit, you can save money and time if you can assemble copies of the information yourself. Otherwise, you will likely incur the costs of your attorney filing a lawsuit in order to subpoena the banks and other financial institutions for the documents you could have copied on your own with some advance planning. If you suspect your spouse is having an affair, it may be wise to seek the assistance of a private investigator before you announce your intent to separate. Once you announce your desire to separate, your spouse may seek legal counsel, and his or her lawyer will most certainly advise a cheating spouse to assume he or she is being followed. Hiring a private investigator after you announce the separation might not be useful, if your spouse suspects he or she might be caught and starts behaving. Signs Your Husband Wants to Leave You1. He’s busy: There can be a myriad of reasons for your husband to be busy, ranging from a viable need to work more to pay the bills, to an escapist way of dealing with an unhealthy relationship with you. This is not a concrete sign that the marriage is headed for divorce. Many men unintentionally switch to working more and spending less time with their wives, not because they do not love them but because they feel the need to provide and cover their financial bases. Now, spouses definitely have to carve out some time to spend together, but your workaholic husband might just be less aware of this than you. At the same time, husbands who value the family very highly, but find their wives overbearing or themselves unable to cope with marital stress, can find mentally escaping in overworking therapeutic. He didn’t just stop caring about his family life whatsoever. 3. He’s constantly fighting you: Non-physical on its own is not a bad sign but it is healthy to have different opinions on issues and not to agree on things just because you are married. Depending on temperaments and characters, disagreements can become rather heated, negative and blunt. If the two of you have not mastered the art of arguing in a productive way, you might say harsh words and hurt each other. However, notice that it is your inability to argue productively that is painful, rather than the mere fact of being in disagreement. Overall, check your own attitude towards fighting. Do you think that spouses should be in lock-step on all issues? Do you believe that thinking differently is a sign of strain in a marriage? Do you think that not agreeing means that he doesn’t love you? If you say ‘yes’ to these statements, you have an idealized view of marriage and of husband-wife dynamics. Remember that you are two very different individuals; it is great that you are different. If, however, you both are constantly insulting each other, your fights are bitter and you never apologize to each other, or if it is your husband who is insulting and non-apologetic, this is a sign that you have communication issues. It could potentially lead to a divorce if you don’t sort it out. There are great professionals out there to help you sort this out. 4. He’s gotten quiet: If you find yourself saying, “He’s too quiet, I think my husband wants to leave me.” In contrast to constant fighting, being quiet is normal. If it is obvious that his behavior has changed, there must be a reason for it and is not a sign that your husband wants out of the marriage. Don’t jump to a conclusion because he simply doesn’t know how to be emotionally expressive, nor wants to kill your mood. Take time and space to sort things out and handle this critical situation. Your husband’s sudden quietness might be his response to marital conflicts. Either his preferred mode of dealing with conflicts is avoidance: you may not have noticed it before, or you both used to bend with the wind but now, after several years of marriage, he feels that he does not want to fight so he chooses to avoid fighting altogether. Or he finds it mentally draining and pointless to expend that energy if it’s a small issue. If he’s not willing to resolve anything then it’s because he no longer sees himself in the relationship with you. It is high time to suggest marriage counseling. 5. He’s beginning to care more about his appearance: For some reason, many people believe that a sudden change in the partner’s appearance is a sign that he will leave his wife. However, grooming up is more often one of the indicators of an affair rather than a divorce. Your spouse might indeed be enhancing his physical appearance in order to impress his potential or current lover(s). This is highly unpleasant information to discover and if it is true, you need to think long and hard about how to proceed. Taken on its own, however, starting to take care of his appearance is not an indication of a divorce. A desire to eat healthier, exercise, and look better is great and does not necessarily mean there are issues in your marriage. The devil is in the details so look at the big picture. A good haircut and new clothes are good for career prospects too. Heading to the gym can occur when the individual realizes that good health is not a gift from heaven. If he wants you to join in, then he has probably reconsidered his approach to life and wants to lead a long and healthy life. However, if the husband gets secretive and you see him dressing up before going out and without you, this could indicate an affair – though not necessarily divorce. 6. Your sex life has become non-existent: When you try to initiate sex with your husband, he is either tired or has fallen asleep. He basically has the proverbial ‘headache’ wives stereotypically refer to. If he agrees to have sex, it is quick and unimaginative. Everyone knows that lack of sex in a marriage is a bad sign and should not just ignore this. However, there are many situations in the family when not having sex is completely normal. There are no guidelines as for the amount of sex in a marriage and can be complicated. If you have young children, and if your husband overworks and has been under stress for some time, this can result in a lack of sex drive. There is, however, a very straightforward reason when a lack of sex can potentially turn into a divorce. It is when your husband is having an affair. 7. He’s having an affair: Again, as with all the signs, it is important to see the whole picture. If you suspect that your husband is having an affair, physical or emotional affairs, because you do not know where he is and he’s been paying more attention to his appearance and phone of late, a lot depends on you and your reaction. Your husband might be that type of man who likes to sleep around, and does not particularly value staying faithful. For him, cheating is not a sign of divorce. He may just want to have both a family and a series of lovers. 8. He’s become shifty about money: If one day you notice that your husband’s behavior regarding money has changed, this can be a sign of a significant change in your relationship. No matter what your previous agreements were if you find out that your husband has moved money around from your joint account without telling you, it means that he is up to something. This is a sure sign of how to tell if your husband wants a divorce. This could be he is supporting someone, and or he is leaving you sooner or later and does not want you to get his money. It is true that not all couples have joint accounts. A few of the pros are having more money overall to use and when it comes to legal matters and you can see any significant changes in spending. The cons are feeling like you have less freedom, inequality in income and taking a big blow if you get divorced. 9. You find divorce attorneys in the search history on your computer: Your browser search history is the easiest resource you can use in an attempt to try and get to the bottom of your intuition or hunch. However, now that everyone has a personal computer or a laptop, and spouses often don’t share screens, you need to think about how you are going to explain your findings. Divorce and Marriage LawyerWhen you need legal help with a divorce or marriage, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
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What Are The Signs Of A Toxic Marriage? How To File A Legal Separation In Utah How Soon After Chapter 7 Can I Buy A Car? Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/how-do-you-tell-my-spouse-i-want-a-divorce/
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You really need to wait until after your 341 meeting or your first meeting of creditors before you buy a car. Chapter 7 bankruptcy is the type of bankruptcy most people prefer to file because it’s quick and filers aren’t required to pay back any debt. Not everyone qualifies for a Chapter 7 discharge. You’ll qualify if your gross income is lower than your state’s median income. If it’s higher, you’ll still qualify if, after paying allowed monthly debts, you don’t have enough left over to feasibly complete a Chapter 13 repayment plan. Other requirements exist, too. For instance, you won’t be able to use Chapter 7 bankruptcy if you already received a bankruptcy discharge in the last six to eight years (depending on which type of bankruptcy you filed). And where you can file will depend on how long you’ve lived in the state. The Chapter 7 bankruptcy process takes about four to six months. The filing fees cost $338 (as of December 2020), and it usually requires only one trip to the courthouse. Your bankruptcy begins after you file a petition and other forms with the bankruptcy court in your area. On the forms, you’ll include information about: • property you owned and money you spent during the previous two years, and The Bankruptcy Trustee for Chapter 7 BankruptcyThe court exercises its control through a court-appointed person called a “bankruptcy trustee.” The trustee’s primary duty is to see that your creditors are paid as much as possible of what you owe them. And the more assets the trustee recovers for creditors, the more the trustee is paid. The trustee (or the trustee’s staff) will examine your papers to make sure they are complete and look for non-exempt property to sell for creditors’ benefit. The trustee will also determine whether any financial transactions occurring the year before you filed can be undone to free up assets for creditors. In most Chapter 7 bankruptcy cases, the trustee finds nothing of value to sell. The Creditors MeetingA week or two after you file, you (and all the creditors you list in your bankruptcy papers) will receive a notice that a “creditors meeting” has been scheduled. The bankruptcy trustee runs the meeting and, after swearing you in, will ask you questions about your bankruptcy and the papers you filed. In the vast majority of Chapter 7 bankruptcies, this is the debtor’s only visit to the courthouse. Most creditors’ meetings last less than ten minutes. Most property owned by Chapter 7 debtors is either exempt or is essentially worthless for purposes of raising money for the creditors. As a result, most debtors don’t lose property–but it can happen. If, after the 341 creditors meeting, the trustee determines that you have some nonexempt property (property you can’t protect), you might be required to either surrender the property or provide the trustee with like property or its equivalent value in cash. If the property isn’t worth very much or is cumbersome for the trustee to sell, the trustee will “abandon” it. You’d get to keep it, even though it is nonexempt. Keep in mind that bankruptcy exemptions vary by state. You can find out more in Bankruptcy Exemptions and Your Property. Secured Debts in Chapter 7If you’ve pledged property as collateral for a loan, the loan is called a secured debt. The most common examples of collateral are houses and automobiles. If you’re behind on your payments, the creditor can ask to have the automatic stay lifted to repossess or foreclose on the property. However, if you are current on your payments, you can keep the property and keep making payments as before; unless you have enough equity in the property to justify its sale by the trustee. If a creditor has recorded a lien against your property because of a debt you haven’t paid (for example, because the creditor obtained a court judgment against you), that debt is also secured. You may be able to wipe out the lien in Chapter 7 bankruptcy. The Chapter 7 Bankruptcy DischargeAt the end of the bankruptcy process, all of your debts are wiped out (discharged) by the court, except: • If you’ve recently completed a bankruptcy, you might be wondering if you can buy a car. In most cases, the answer is yes. If the debts you’ve discharged in your bankruptcy case have freed up enough income to pay in cash or make a loan payment, you might be in luck. Car loan lenders are often willing to let you finance a car after bankruptcy, however, you should expect to pay high-interest rates if you’re taking out the car loan shortly after receiving a bankruptcy discharge. Should You Buy a Car After Bankruptcy With Cash or Credit?The option you choose will depend on your circumstances and resources. You might find that after filing bankruptcy and discharging debts, you have extra disposable income. If you’re able to save up enough cash after your bankruptcy case, using it will likely be the cheaper option. For example, the bankruptcy may have stopped a judgment creditor from garnishing from your paychecks, or you might not have to make credit card payments or debt installment payments any longer, including old car loan lenders. Also, as long as your bankruptcy trustee didn’t claim an interest in your federal or state income tax refunds, you could get extra cash from these refunds. Financing a Car After BankruptcyIf you don’t have enough cash to buy a car, it’s not impossible to get an auto loan despite having filed bankruptcy previously. Lenders will be eager to extend you new credit. Car dealerships may have already mailed you sales cards and letters, inviting you to buy a car with credit. And you are probably eager to re-establish your credit after bankruptcy. Here are some of the pros and cons of taking out a car loan soon after bankruptcy. Getting a loan can help you re-establish credit. It allows you to make timely installment payments on a big-ticket debt, which can help build a positive credit report. Financing may also be your best option if you need a car but don’t have the cash to pay for it. Unfortunately, many lenders—subprime lenders and “buy here, pay here” outfits—will see your bankruptcy as a bad credit mark, and charge you extremely high-interest rates (sometimes as high as 29%). However, bankruptcy doesn’t carry the stigma that it used to 20 or 30 years ago. Even more mainstream lenders and car dealers will not bat an eye over your bankruptcy and are open to doing business with you. You might even be able to finance a new car at a reasonable rate of interest, especially if you have a steady source of adequate income. You should research various finance terms and options that dealers, car loan lenders, banks, and credit unions are willing to offer you in your area. Whether you are using cash or plan to get a car loan, you should wait until after you have received your bankruptcy discharge, or after your bankruptcy case has been dismissed. In a Chapter 7 case, you should get your discharge notice from the bankruptcy clerk of court about 90 days after your 341 meeting of creditors—the one hearing almost all filers must attend. Buying a Car During or After Chapter 13If you are in Chapter 13, the process is significantly different. Chapter 13 is a continuous proceeding that typically takes between three to five years to complete. If you need a new car while you are still in Chapter 13, you will need permission from the bankruptcy court before you can buy one. In most jurisdictions, this means filing a motion with the court. Consult with a bankruptcy attorney to get more information about buying a car in Chapter 13. Once you have received your discharge notice or dismissal, the rule of thumb is simple: The longer you wait to get a new car loan, the better your interest rate will be. However, if you can’t wait, you might still be able to find a reasonable new car loan after researching your options. You don’t lose all of your assets in bankruptcy. You’re allowed to protect (exempt) what you’ll need to get a fresh start after the case ends. Each state has a list of property exemptions for its residents. In most states you can protect at least one car, but the amount of equity you can exempt is limited to a particular dollar amount. If the equity in your car exceeds the exemption amount, what will happen to the car will depend on the chapter you file. The Chapter 7 trustee will sell the car, give you your exemption amount, and use the remaining amount to pay fees and creditors—or force you to pay the nonexempt amount (usually with income made after the bankruptcy filing or money loaned from friends or family). The key problem you’ll want to be aware of is that if you pay more cash for the car than you can protect with an exemption, you’ll likely end up losing the car. In a Chapter 13 case, nonexempt equity is handled a bit differently, but the result is similar. Specifically, the Chapter 13 trustee won’t sell the car; however, you’ll have to pay for the nonexempt portion of the vehicle in the three- to five-year repayment plan. If you don’t have enough income to fund a plan that includes repayment of the nonexempt equity, you’ll have to either: • sell the car yourself (and likely turn over some of the proceeds to the trustee) • let the car go back to the lender, or • find a way other that Chapter 13 bankruptcy to handle your debt problems. Chapter 7 LawyerWhen you need to file a chapter 7 bankruptcy, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
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Securities Lawyer Salt Lake City What Are The Signs Of A Toxic Marriage? Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/how-soon-after-chapter-7-can-i-buy-a-car/ For families caring for a loved one with a disability, special needs trusts can provide peace of mind. Special needs trusts allow the family to improve the quality of life for the loved one, without jeopardizing eligibility for government benefits. It’s best not to give money or property directly to a person who needs government assistance because if you do, that gift will almost certainly make the loved one ineligible to receive aid. Third-party special needs trusts provide a solution to that problem and they also help to ensure that the beneficiary gets as much as possible out of the family’s gift. You must follow the rules when creating and living with special needs trusts, but if your needs are simple, you may be able to do this work without a lawyer. A way around losing eligibility for SSI or Medicaid is to create what’s called a special need or supplemental needs trust. Then, instead of leaving property directly to your loved one, you leave it to the special needs trust. You also choose someone to serve as trustee, who will have complete discretion over the trust property and will be in charge of spending money on your loved one’s behalf. Because your loved one will have no control over the money, SSI and Medicaid administrators will ignore the trust property for program eligibility purposes. The trust ends when it is no longer needed commonly, at the beneficiary’s death or when the trust funds have all been spent. Setting Up the TrustFirst, you must create the trust document. You do not need a lawyer to set up a basic no-frills special needs trust, and having one that you make yourself is often better than not having a trust at all. However, many families will benefit from getting trust tailored to their specific situation. To get a personalized trust, consult a lawyer for help. Finalizing and the Initial Funding of the TrustThe trust will take effect when you sign it and have it notarized. Not long after that (when you get the trust’s tax identification number from the IRS), you can add a little cash to the trust by opening a bank account with a minimal deposit. At that point the trust is ready to be funded through the wills, living trusts, beneficiary designations, or other estate planning tools of those who want to help support the beneficiary with special needs. Anyone (except beneficiary of the trust) can contribute property to a special needs trust. Although these trusts are most often created by parents for their children, you don’t need any family relationship to create or give money to a trust for someone. And there is no limit to the number of trusts that may be created for a particular beneficiary. Virtually any type of property can be held in a special needs trust, including real estate, stocks, collections, a business, patents, or jewelry. But because the primary purpose of a special needs trust is to use cash money to pay for items that aren’t provided by SSI or Medicaid, special needs trusts typically give the trustee authority to sell tangible items (cars or jewelry, for example) to raise cash. In order to decide whether to keep or sell tangible items, the trustee will need a good understanding of the beneficiary’s personal needs and basic sound investment rules. Learn more about The Trustee’s Job. How Assets Get Into the TrustThe person who creates a special needs trust often makes the initial transfer of assets into the trust usually just a small amount of money. Then, commonly, a parent, grandparent, or other relative leaves property to the trust by: Terminating the Special Needs TrustThe special needs trust ends when it’s no longer needed. There are four reasons to end a special needs trust: Third-Party Special Needs TrustsThird-party SNTs are commonly used by persons planning in advance for a loved one with special needs. Typically, the parents of an individual with disabilities or special needs will be the persons who establish a third-party SNT, although a grandparent, a sibling, or any other person (other than the beneficiary) may establish the SNT. Third-party SNTs can be included in a Last Will and Testament, established within an inter vivo trust that is designed to avoid probate (“Living Trust”), or drafted as a stand-alone SNT. These SNTs are typically funded upon the death of the beneficiary’s parents or the other individual(s) who established the SNT. SNTs created under a Will or as a subtrust within a Living Trust do not come into existence (and therefore cannot receive gifts) until after the death of the individual whose Will or Living Trust created the SNT. Therefore, a stand-alone SNT may be more useful if there are multiple donors who wish to fund the SNT. A stand-alone SNT exists during the lifetime of the person establishing the SNT, which allows the SNT to receive gifts from grandparents, family friends or even the person establishing the SNT, prior to the death of the SNT’s creator. Such an SNT is available as a receptacle for lifetime and post mortem gifts from any third-party source. This type of SNT does not have to be irrevocable in order to preserve the eligibility of the SNT beneficiary for means-tested public benefits. However, if the SNT beneficiary has the power to revoke the SNT, the SNT assets would be considered an available resource for Supplemental Security Income (SSI) and Medicaid purposes. The beneficiary’s ability to revoke the SNT or otherwise exercise control over the SNT may render the beneficiary ineligible to receive public benefits that have an income or asset limit. The SNT agreement should authorize the person establishing the third-party SNT and/or the trustee to amend the SNT to address later changes in the law or the circumstances of the beneficiary. Allowing for such limited amendments helps ensure that essential government benefits are preserved if an agency challenges the terms of the SNT. The most important difference between third-party SNTs and first-party SNTs is what happens to SNT property when the beneficiary dies. Upon the beneficiary’s death, the third-party SNT is not required to use the remaining assets to reimburse any state(s) for the Medicaid benefits received by the beneficiary during his or her lifetime. As a result, this type of SNT is a useful planning tool for people who want to set aside property for a beneficiary with disabilities, preserve essential public benefits during that beneficiary’s lifetime, and remain in full control of where all of the remaining SNT assets will go upon the beneficiary’s death. First-Party Special Needs TrustsFirst-party SNTs are most often used when the person with a disability inherits money or property outright, or receives a court settlement. These SNTs also are useful when a person without a prior disability owns assets in his or her name, later becomes disabled, and thereafter needs to qualify for public benefits that have an income or asset limitation. These SNTs are creatures of federal law, specifically individual first-party SNTs are authorized pooled first-party SNTs are authorized. First-party SNTs also are commonly called self-settled SNTs, Medicaid payback trusts, OBRA ’93 trusts, and d4A or d4C trusts. Until the Special Needs Trust Fairness Act became law late in 2016, the only persons or entities authorized to “establish” (create) an individual first-party SNT were the SNT beneficiary’s parent, grandparent, legal guardian, or a court. Since December 13, 2016, federal law also authorizes a mentally and legally competent SNT beneficiary to establish an individual first-party SNT. A first-party SNT is funded with property that belongs to the beneficiary, or to which the beneficiary is or becomes legally entitled. Property in a first-party SNT can only be used for the “sole benefit” of that beneficiary. Individual first-party SNTs may be created (and funded) only for individuals who meet the government’s definition of “disabled” and are under sixty-five years of age when the SNT is established (and funded). While a pooled first-party SNT can be established by individuals over sixty-five years of age in many states, a significant number of states do not allow a person over age sixty-five to establish or transfer property to a pooled first-party SNT without penalty. Pooled first-party SNTs can be established by the beneficiary, the beneficiary’s parent, grandparent, or guardian, or a court. If the SNT beneficiary is not mentally and legally competent, then court approval must be obtained to fund the SNT with the beneficiary’s property. All first-party SNTs must specify that after the beneficiary’s death, all amounts remaining in the SNT, up to an amount equal to the total lifetime medical assistance benefits paid on behalf of the beneficiary by the Medicaid program(s) of any state(s), are first repaid to those state Medicaid program(s), even to the extent of fully exhausting the remaining SNT assets. Only after this Medicaid payback may any balance be distributed to other remainder beneficiaries. A legally competent person with a disability may have a first-party SNT established and funded without court involvement. However, annual accountings should be provided on an informal basis to the beneficiary and to the applicable Medicaid agencies. When a minor or mentally incompetent adult is legally entitled to receive funds from a lawsuit, an inheritance, or from any other source, then court approval to establish and fund the first-party SNT is required. Often, the court must make specific findings to ensure that the SNT is considered “exempt” when determining the beneficiary’s eligibility for public benefits that have income or asset qualification thresholds. These findings could include: Pooled Special Needs TrustsPooled SNT programs can be used to establish both first-party and third-party SNTs. Pooled SNTs are established and administered by a non-profit association for the benefit of multiple beneficiaries. Pooled SNT programs have the following features: Special Needs Trust LawyerWhen you need legal help with a special needs trust in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
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How Long Do Chapter 11 Bankruptcies Last? Real Estate Lawyer Salt Lake City Marriage And Family Lawyers Salt Lake City What Are The Signs Of A Toxic Marriage? Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/utah-special-needs-trusts/ A toxic relationship is a relationship characterized by behaviors on the part of the toxic partner that are emotionally and, not infrequently, physically damaging to their partner. While a healthy relationship contributes to our self-esteem and emotional energy, a toxic relationship damages self-esteem and drains energy. A healthy relationship involves mutual caring, respect, and compassion, an interest in our partner’s welfare and growth, an ability to share control and decision-making, in short, a shared desire for each other’s happiness. A healthy relationship is a safe relationship, a relationship where we can be ourselves without fear, a place where we feel comfortable and secure. A toxic relationship, on the other hand, is not a safe place. A toxic relationship is characterized by insecurity, self-centeredness, dominance, control. We risk our very being by staying in such a relationship. To say a toxic relationship is dysfunctional is, at best, an understatement. Keep in mind that it takes two individuals to have a toxic relationship, meaning our own words and actions matter as well. Initially, we’ll look at the behaviors of the toxic partner, but we must look equally hard at the individual who is the recipient of the toxic behavior. Types of Toxic RelationshipsEven a good relationship may have brief periods of behaviors we could label toxic on the part of one or both partners. Human beings, after all, are not perfect. Few of us have had any formal education in how to relate to others. We often have to learn as we go, hoping that our basic style of relating to significant others often learned from our parents and/or friends is at least reasonably effective. As mentioned above, however, what defines a toxic relationship is dysfunction as the norm. The toxic partner engages in inappropriate controlling and manipulative behaviors on pretty much a daily basis. Paradoxically, to the outside world, the toxic partner often behaves in an exemplary manner. Any relationship involving physical violence or substance abuse is by definition extremely toxic and requires immediate intervention and, with very few exceptions, separation of the two partners. A toxic individual behaves the way he or she does essentially for one main reason: he or she must be in complete control and must have all the power in his or her relationship. Power sharing does not occur in any significant way in a toxic relationship, meaning one person is overtly passive whether they know it or not. And while power struggles are normal in any relationship, particularly in the early stages of a marriage, toxic relationships are characterized by one partner absolutely insisting on being in control. Keep in mind, the methods used by such an individual to control his or her partner in a toxic relationship may or may not be readily apparent, even to their partner. Deprecator-BelittlerThis type of toxic individual will constantly belittle you. He or she will make fun of you, essentially implying that pretty much anything you say that expresses your ideas, beliefs, or wants is silly or stupid. A toxic spouse will not hesitate to belittle you in public, in front of your friends or family. Even though you may have asked your toxic partner to stop belittling you, he or she will continue this behavior, occasionally disguising it by saying, “I’m just kidding. Can’t you take a joke?” The problem is they are not kidding and what they’re doing is not a joke. The toxic partner wants all the decision making power. Unfortunately, if you tolerate this deprecating behavior long enough, you very well may begin to believe you can’t make good decisions. This type of toxic individual will often tell you that you’re lucky to have them as a partner, that no other man or woman would really want you. His or her goal is to keep your self esteem as low as possible so that you don’t challenge their absolute control of the relationship. The “Bad Temper” Toxic Partner“Controlling by intimidation” is a classic behavior of a toxic partner. Often these individuals have an unpredictable and “hair-trigger” temper. Their partners often describe themselves as “walking on egg shells” around the toxic partner, never quite knowing what will send him or her into a rage. This constant need for vigilance and inability to know what will trigger an angry outburst wears on both the “victim’s” emotional and physical health. Again, it is noteworthy that this type of emotionally abusive partner rarely shows this side of his or her self to the outside world. No one else would label the relationship toxic, meaning he or she is frequently thought of as a pleasant, easy-going person who almost everyone likes. As you would expect, if you confront a “bad temper” partner about the inappropriateness of their anger, they will almost always blame their temper outburst on you. Somehow it’s your fault they yell and scream. This disowning of responsibility for their dysfunctional behavior is typical of a toxic partner. The Guilt-InducerA toxic relationship can, of course, occur not only between two individuals in a committed relationship, but also between friends or parents and their adult children. Control in these relationships, as well as in a committed relationship, is exercised by inducing guilt in the “victim.” The guilt inducer controls by encouraging you to feel guilty any time you do something he or she doesn’t like. Not infrequently they will get someone else to convey their sense of “disappointment” or “hurt” to you. For example, your father calls up to tell you how disappointed your mother was that you didn’t come over for Sunday dinner. A guilt inducer not only controls by inducing guilt but also by temporarily “removing” guilt if you end up doing what he or she wants you to do. For guilt-prone individuals, anything or anyone that removes guilt is very desirable and potentially almost addictive, so the guilt inducer has an extremely powerful means of control at their disposal. Incidentally, guilt induction is the most common form of control used by a toxic parent(s) to control their adult children. Frequently, a spouse or significant other will disguise their guilt-inducing control by seemingly supporting a decision you make – i.e., going back to school but will then induce guilt by subtly reminding you of how much the children miss you when you’re gone, or how you haven’t been paying much attention to him or her lately, etc. As with all toxic behaviors, guilt-inducing is designed to control your behavior so your toxic partner, parent, or friend gets what he or she wants. The Over-reactor/DeflectorIf you’ve ever tried to tell a significant other that you’re unhappy, hurt, or angry about something they did and somehow find yourself taking care of their unhappiness, hurt, or anger, you’re dealing with an over reactor/deflector. You find yourself comforting them instead of getting comfort yourself. And, even worse, you feel bad about yourself for being “so selfish” that you brought up something that “upset” your partner so much. Needless to say, your initial concern, hurt, or irritation gets lost as you remorsefully take care of your partner’s feelings. A variation on this theme is the deflector: You try and express your anger or irritation regarding some issue or event – your spouse stays out with his/her friends two hours longer than they said they would and doesn’t even bother to call – and somehow your toxic partner finds a way to make this your fault! The deflector is confused that the information you’re bringing to his or her attention is in direct conflict with their self-perception. This is so uncomfortable that they inadvertently convince you that you’re the one with “work to do.” Perhaps you are being too sensitive. Or perhaps instead of an apology, you’re offered a calculated question: “But do you love me?” Suddenly the criticism is replaced with praise. The Over-Dependent PartnerOdd as it may seem, one method of toxic control is for your partner to be so passive that you have to make most decisions for them. These toxic controllers want you to make virtually every decision for them, from where to go to dinner to what car to buy. Remember, not deciding is a decision that has the advantage of making someone else namely you responsible for the outcome of that decision. And, of course, you’ll know when you’ve made the “wrong” decision by your partner’s passive aggressive behavior such as pouting or not talking to you because you chose a movie or restaurant they didn’t enjoy. Or you choose to go to spend the weekend with your parents and your partner goes along but doesn’t speak to anyone for two days. The “Independent” (Non-Dependable) Toxic ControllerThis individual frequently disguises his or her toxic controlling behavior as simply asserting his or her “independence.” “I’m not going to let anyone control me” is their motto. This toxic individual will only rarely keep his or her commitments. Actually, what these individuals are up to is controlling you by keeping you uncertain about what they’re going to do. Non-dependable will say they’ll call you, they’ll take the kids to a movie Saturday, they’ll etc. etc., but then they don’t. Something always comes up. They usually have a plausible excuse, but they simply don’t keep their commitments. In this relationship, “toxic” means they control you by making it next to impossible for you to make commitments or plans. What’s even more distressing is that this type of toxic individual does not make you feel safe and secure in your relationship. It’s not just their behavior that’s unpredictable; you’re never quite sure that they are really emotionally committed to you, that you and your relationship with them are a priority in their life. You’ll often find yourself asking for reassurance from them, reassurance that they love you, find you attractive, are committed to your marriage, etc. Their response is often just vague enough to keep you constantly guessing, and is designed to keep you doing what they want to “earn” their commitment. The anxiety you feel in such a relationship can, and often does, eat away at your emotional and physical health. The UserUsers especially at the beginning of a relationship often seem to be very nice, courteous, and pleasant individuals. And they are, as long as they’re getting everything they want from you. What defines a toxic relationship with a user is its one-way nature and the fact that you will end up never having done enough for them. Users are big-time energy drainers who will in fact leave you if they find someone else who will do more for them. Actually, a really adept user will occasionally do some small thing for you, usually something that doesn’t inconvenience or cost them too much. Staying in a relationship with a user is like paying $1,000 for a candy bar. You really aren’t getting much for your investment. The Possessive (Paranoid) Toxic ControllerThis type of toxic individual is really bad news. Early in your relationship with them you may actually appreciate their “jealousy,” particularly if it isn’t too controlling. And most, but certainly not all, possessives will imply that once the two of you are married or in a committed relationship, they’ll be just fine. These toxic individuals will become more and more suspicious and controlling as time goes on. They’ll check the odometer in your car to make sure you haven’t gone somewhere you “shouldn’t,” they’ll interrogate you if you have to stay late at work, they will, in short, make your life miserable. They may even use technology to their advantage, using smart devices to check on your physical location or doorbell cameras to eavesdrop or verify you actually arrived at home when you said you would. Over time they will work hard to eliminate any meaningful relationships you have with friends, and sometimes even with family. They do not see themselves in a relationship with you; they see themselves as possessing you. Your efforts to reassure a toxic possessive about your fidelity and commitment to them will be in vain. If you stay in a relationship with such an individual you will cease to really have a life of your own. Divorce LawyerWhen you need a divorce lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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How Long Does It Take To Get Served After Filing Divorce? Family Law And Prenuptial Agreements What’s The Most Important Thing About An Appeal? Parent Visitation Attorney Utah How Long Do Chapter 11 Bankruptcies Last Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/what-are-the-signs-of-a-toxic-marriage/ If you hold significant assets in one or more individual retirement accounts, you might want to consider setting up a special type of revocable living trust that’s specifically designed to act as the beneficiary of your IRAs after you die. This type of trust is referred to by a few different names, including an IRA Trust, an IRA Living Trust, an IRA Inheritor’s Trust, an IRA Stretch Trust, an IRA Inheritance Trust, or a Standalone Retirement Trust. An IRA Trust is a special type of revocable living trust designed for the sole purpose of holding your IRA accounts for the benefit of your loved ones after your death. You can establish different sub-trusts within the IRA trust agreement for the benefit of your beneficiaries, including your spouse if you’re married. You can design each sub-trust to fit the unique needs of each beneficiary. RMD Rules for Trusts Inheriting IRAsThe post-death RMDs for a trust named as an IRA beneficiary will be calculated under either the stretch payout rule, the 10-year rule, or the 5-year rule, depending on certain attributes of the trust and the trust beneficiaries. It matters whether the trust qualifies as a see-through trust, whether it is a conduit trust or an accumulation trust, and whether the trust beneficiaries are non-individuals, “regular” beneficiaries, or part of the new class of “eligible designated beneficiaries.” The application of the RMD rules to these different types of trusts and beneficiaries is outlined in Exhibit A. The analysis of which RMD rule applies is not always clear, and there are aspects of the SECURE Act that will require clarification through IRS regulations. For these reasons, among others, it is important to involve your estate planning advisor in any decision to name a trust as an IRA beneficiary. You will want to confirm that your reasons for naming a trust as your IRA beneficiary are reflected in the trust terms and will not be negated by the RMD payout rules. It is also important to review beneficiary designations to be sure that any trust beneficiaries are appropriately named. It is important to note that the RMD payout rules are different than the payout rules of the trust. Even if an IRA must pay out under the 5-year rule to a trust named as the IRA beneficiary, it does not necessarily mean that the IRA assets will distribute out to the trust beneficiaries within five years. Instead, the terms of the trust regarding distribution to trust beneficiaries will apply. For example, if the trust is completely discretionary, then once the IRA assets are distributed out of the IRA to the trust itself, the after-tax proceeds of the IRA will remain invested with other assets of the trust until the trustee exercises its discretion to make a distribution to one or more of the beneficiaries. An inherited IRA refers to an IRA that is passed from the original account holder to a beneficiary after the account holder dies. It is important for people to understand the inherited IRA rules for different beneficiaries and heirs. Whether you will have to pay tax on an inherited IRA will depend on the type of IRA that you are receiving under the inherited IRA rules. You will usually not have to pay inherited IRA taxes if you inherit a Roth IRA. If you inherit a traditional IRA, you will generally have to pay taxes. Spouses and non-spousal beneficiaries have different rules for inherited IRAs. The taxes on an inherited IRA will be assessed at the time that distributions are taken unless it is an inherited Roth IRA. What are the inherited IRA rules?Taxes on an inherited IRA are assessed on the distributions that you take in the year that you take them. There are different inherited IRA rules for spouses and non-spouse beneficiaries. Spouses who inherit IRAs have several options under the inherited IRA rules. They may opt to treat the IRAs as their own or to instead to be treated as if they are non-spouse beneficiaries. Under the inherited IRA rules, spouses can choose to roll the assets over into their own IRAs so that they will not have to begin taking required minimum distributions before they reach age 70 1/2, which might help them to avoid being pushed into a higher tax bracket and being forced to pay more tax on an inherited IRA. Non-spouse beneficiaries must begin taking required minimum distributions within one year of the deaths of the original IRA account holders under the IRA distribution rules for beneficiaries. If they do not, they will have to withdraw the entire balances within five years of the original owners’ deaths. Non-spouse beneficiaries can withdraw the money at any time, but they will have to pay inherited IRA taxes on the amounts that they withdraw. Traditional inherited IRAs are traditional IRAs, SEP IRAs, and SIMPLE IRAs that are left to beneficiaries when the account owners die. SEP IRAs and SIMPLE IRAs become traditional inherited IRAs after the account holders pass away and follow the same rules. Inherited Roth IRAs allow the beneficiaries to take withdrawals without paying taxes. However, they cannot choose to keep the money in the Roth IRA accounts like the original account holders were able to do. Inherited 401(k) accounts are 401(k) plans that are inherited from spouses or from non-spouses. Just like you have to pay tax on an inherited IRA, you also have to pay tax on an inherited 401(k). Under the rules on an inherited 401(k), the taxes on an inherited 401(k) are assessed at the time that you take distributions. The inheritance tax rate when you take distributions from an inherited 401(k) or a traditional IRA is your ordinary income tax rate. The rules on an inherited 401(k) differ depending on whether you are a spouse or a non-spouse. The inherited 401(k) rollover rules allow spouses to roll the funds over into their own accounts. However, the inherited 401(k) rollover rules do not allow non-spouse beneficiaries to roll the funds over into their own accounts. You can roll the funds over into an account that you have designated as an inherited IRA under the inherited 401(k) rules. Importance of choosing a beneficiary for your IRAUnder the IRA beneficiary rules, the proceeds of your IRA are not passed through the provisions of your will. It is vital for you to choose a beneficiary for your IRA. If you do not, the proceeds of your IRA will pass to your estate and will be passed according to the intestacy laws of your state instead of how you might wish the account to be handled. When you open your IRA account, you can designate a beneficiary under the IRA beneficiary rules on the beneficiary designation form. This form allows you to specify how the funds in your account will be handled after you die according to the IRA beneficiary rules. You can name your spouse, child, friend, or a charity or trust as the beneficiary to your IRA. In addition to knowing the IRA distribution rules for beneficiaries, there are some other factors that you should consider. You first need to determine whether you are listed as a beneficiary of another person’s IRA. Remember that under the IRA distribution rules, the beneficiary who is named on the beneficiary designation form will receive the proceeds of the IRA. The beneficiary designations supersede wills. If you are named as a beneficiary and are inheriting an IRA from a parent or have inherited an IRA from a spouse, you should request a trustee-to-trustee transfer of the funds in the inherited account. The distributions from an inherited IRA can be invested in other accounts. You should also make certain that you understand the IRA RMD rules for beneficiaries. IRA Trust Administration LawyerWen you need an IRA Trust Administration Lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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How Long Does It Take To Get Served After Filing Divorce? Divorce Lawyers Salt Lake City Salt Lake City Uncontested Divorce Attorney How Long Do Chapter 11 Bankruptcies Last? Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/ira-trust-administration/ Chapter 11 bankruptcy is designed to allow struggling businesses to restructure their finances and maximize the return to their creditors and owners. Businesses turn to Chapter 11 bankruptcy when pinched financially, often due to a temporary downturn. It can help a viable business keep the doors open long enough to regroup and re-imagine a future forward strategy. It doesn’t matter whether the company is avoiding paying vendors, having a tough time meeting payroll or rent, or struggling with some other obligation that’s come due— the debt relief afforded by Chapter 11 gets businesses back on track. Collection Actions StopAll bankruptcy chapters work by stopping the collection process. Once filed, the automatic stay prohibits most creditors from pursuing you, giving you, your creditors, and the court the breathing room needed to address finances in an organized fashion. For instance, the stay will temporarily stop: Filer Retains Control of the BusinessUnlike other bankruptcy chapters, a bankruptcy trustee isn’t put in charge of the business and other bankruptcy property. The filer continues to run the everyday functions of the business as a debtor in possession during the Chapter 11 bankruptcy. Debt Relief through a Payment PlanThe goal of Chapter 11 is to create a financial plan that the filer, creditors, and the court agree will enable the company to remain open and prosper. The plan can include modifying interest, payment due dates, and other terms—it can even discharge (erase) debt entirely. Most plans provide for at least some downsizing of the debtor’s operations to reduce expenses and free up assets. In some cases, “liquidating plans” shutdown the debtor’s operations and provide for the orderly sale of its remaining property (although a debtor can accomplish this in a Chapter 7 business bankruptcy.) If all necessary creditors approve of the plan, it becomes a new contract, and the filer receives the debt discharge immediately. If the court approves the plan without creditor consent, such as in Chapter 11, Subchapter V, the filer must make all required payments before receiving the debt discharge. • any assets the debtor wouldn’t sell in the ordinary course of business, such as real property Creditors and the Creditor CommitteeCreditors, shareholders, and other parties in interest may support or oppose actions that require bankruptcy court approval. The bankruptcy court will consider input from creditors and other parties when deciding how to proceed. Formal votes by creditors and equity holders, however, are taken only in connection with proposed Chapter 11 plans. Unsecured creditors participate in the Chapter 11 case through a committee appointed to represent their interests. The unsecured creditors’ committee can retain attorneys and other professionals to assist it at the debtor’s expense. In some cases, equity security (i.e., shareholder) and other committees also take an active role. The Disclosure StatementThe filer must fully disclose background information so that a creditor can make an informed decision about the feasibility of the proposed plan. The fact that creditors can object to the disclosure statement and the actual plan creates two rounds of costly litigation. The court sets dates for plan objections and creditor voting after approving the disclosure statement. Chapter 11 Reorganization PlansOrdinarily, the debtor has the exclusive right to propose a reorganization plan for the first four months; however, the court can extend the debtor’s “exclusivity period” for to up 18 months after the petition date. This provision is one of the reasons why Chapter 11 is so costly. Once the exclusivity period expires, the creditors’ committee or other parties can propose alternate reorganization plans. But more often, creditors or other parties dissatisfied with the debtor’s progress will move to dismiss or convert the case to Chapter 7. Creditors are entitled to vote on whether they accept a proposed Chapter 11 plan. At least one class of impaired claims must vote in favor of a Chapter plan. An impaired claim is an obligation that will not be paid in full upon plan confirmation or when originally due. Chapter 11 Plan ConfirmationIn reality, the debtor and creditors can agree to any plan that they choose. If a creditor objects to the plan, however, the court will consider factors, including: Credit Counseling Course For BankruptcyIf you are filing for Chapter 11 as an individual (not for your business), you must complete a credit counseling course by an approved agency prior to filing your case. If you are filing the Chapter 11 to reorganize the debts of a business, you do not have to take this counseling. Chapter 11 Petition For Bankruptcy ReliefYou must prepare your petition by completing a list of all of your (or your company’s) assets, debts, income, and expenses along with a summary of your financial affairs. Once you have completed this task and reviewed all of the documents for accuracy, you can file your petition with bankruptcy clerk’s office. In most circumstances, the filing of the petition triggers what is referred to as an “automatic stay.” This stay prohibits most creditors from continuing collection efforts against you or your assets unless the bankruptcy judge gives them permission to do so. Monthly Operating ReportsDuring your Chapter 11 bankruptcy case, you must prepare and file with the court monthly operating reports. These reports reflect your income and expenses for that particular month. The reports are available to your creditors, the court, and the United States Trustee. The reports allow these entities to assess whether or not they think your proposed plan of reorganization will be feasible. Since feasibility is required to get your plan approved by the judge, you should pay close attention to your monthly operating reports. Most debtors find it advantageous to obtain court permission to pay an accountant to complete these. Chapter 11 Bankruptcy Disclosure Statement and Disclosure HearingYou must file a disclosure statement along with a proposed plan of reorganization and mail these documents to every party in interest, including all of your creditors. The disclosure statement explains how creditors may participate in the bankruptcy and provides information about how the creditor’s rights may be adversely affected. There will be a hearing on the disclosure statement where parties in interest can object to the statement’s language. These disclosure statements are typically approved on a regular basis and the hearing is a formality. Chapter 11 Proposed Plan of ReorganizationThe plan of reorganization states how you propose to treat each of your creditors. The creditors are placed in classes according to whether they are a priority debt creditor, a secured debt creditor, or an unsecured debt creditor. If a creditor doesn’t like how it’s treated in your plan, you can file a motion asking the judge to force the creditor to accept the plan. If the judge does force the creditor to accept the plan, this is called a cram down. Chapter 11 Confirmation HearingAt your confirmation hearing, you ask the judge to approve your plan of reorganization. Unless you have obtained votes of acceptance from each of your creditor classes, the judge will not approve your plan. At that point, you can file a motion for cram down of the non-accepting classes and the court will reschedule the confirmation hearing. If the creditor doesn’t respond to a motion for cram down, it will be deemed to accept the plan. If the creditor does respond, you can negotiate with the creditor to try to get it to accept plan treatment. If you cannot agree, then the judge will decide at a hearing. Chapter 11 Payments Under the PlanOnce the judge has approved your plan, you will start making payments to the creditors according to how they are treated in the confirmed plan. This constitutes a new contract with each of your creditors. If you default on payments, then the creditor may sue you on that basis and you will have little recourse. Depending on what type of debts you reorganized through the bankruptcy, your payments may continue for many years. Debts like mortgages or car notes typically get re-amortized over an extended period. Once you make all required payments to your unsecured creditor class, you can ask the court for a discharge of the remainder of your unsecured debts. The discharge prevents any of these creditors from collecting on any of the debts in the plan. The discharge is usually the main objective of filing the Chapter 11 bankruptcy and is the end of your case. Chapter 11 Bankruptcy LawyerIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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How Long Can An Executor Hold Money After Probate? Impropoer Withdrawal From Funds Application Of The Work Product Doctrine How Long Does It Take To Get Served After Filing Divorce Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/how-long-do-chapter-11-bankruptcies-last/ If you’re planning to get divorced, you’d probably prefer to do so quickly. After all, no one wants the (often costly) process to drag on, especially if you’re trying to step out of a loveless or toxic marriage or even one that’s ending amicably. But the duration to get served after divorce depends on a few things, including where you live, whether or not both parties agree to all the terms, and how fast the judge can get around to the paperwork. An uncontested divorce, or a divorce in which all major issues are resolved before going to trial, will take substantially less time than a ‘contested divorce.” Typically, it takes less than a year. However, the speed a judge will sign divorce papers will vary from jurisdiction to jurisdiction and state to state. Nearly every state has its own set of divorce requirements. From paperwork processing times to mandatory separation and waiting periods, your locale will affect the dissolution of your marriage. “In New Jersey, for example, divorces are not supposed to take more than a year… but some take much longer depending on the issues involved and the local court’s backlog,” As such, it’s important to familiarize yourself with your states divorce laws. It will take one to two weeks for a lawyer to draw up a petition for divorce. Although divorce is common throughout the United States, the divorce process varies depending on the couple’s situation. Short-term marriages without children or property typically result in a less complex and time-consuming divorce than long-term marriages with significant property entanglements, marital debt, and minor children. Additionally, divorcing couples who work together to negotiate the terms of the divorce (child custody, child support, property division, debt allocation, and spousal support) will experience a less expensive and less stressful divorce than couples who can’t agree or refuse to work together. Filing the Divorce PetitionWhether both spouses agree to the divorce or not, before any couple can begin the divorce process, one spouse must file a legal petition asking the court to terminate the marriage. The filing spouse must include the following information: No-fault divorce is a streamlined process that allows spouses to file a divorce petition without listing a specific reason or placing blame on either spouse. If your spouse committed marital misconduct or caused the breakup, some states allow parties to claim fault for the divorce, like adultery or neglect. If you’re unsure whether you should file a no-fault or fault divorce, contact an experienced family law attorney in your state for guidance. Asking for Temporary OrdersCourts understand that the waiting period for divorce may not be possible for all couples. For example, if you are a stay-at-home parent that is raising your children and dependent on your spouse for financial support, waiting for 6-months for the judge to finalize your divorce probably seems impossible. When you file for divorce, the court allows you to ask the court for temporary court orders for child custody, child support, and spousal support. If you request a temporary order, the court will hold a hearing and request information from each spouse before deciding how to rule on the application. The judge will usually grant the temporary order quickly, and it will remain valid until the court orders otherwise or until the judge finalizes the divorce. Other temporary orders may include a request for status quo payments or temporary property restraining orders. Status quo orders typically require the breadwinner to continue paying marital debts throughout the divorce process. Temporary property restraining orders protect the marital estate from either spouse selling, giving away, or otherwise disposing of marital property during the divorce process. Restraining orders are usually mutual, meaning both spouses must follow it or risk being penalized by the court. If you need a temporary order but didn’t file your request at the time you filed for divorce, you’ll need to apply for temporary orders as quickly as possible. When you file for divorce, the court allows you to ask the court for temporary court orders for child custody, child support, and spousal support. Serve Your Spouse and Wait for a ResponseAfter you file the petition for divorce and request for temporary orders, you need to provide a copy of the paperwork to your spouse and file proof of service with the court. Proof of service is a document that tells the court that you met the statutory requirements for giving a copy of the petition to your spouse. If you don’t properly serve your spouse, or if you neglect to file a proof of service with the court, the judge will be unable to proceed with your divorce case. Service of process can be easy, especially if your spouse agrees with the divorce and is willing to sign an acknowledgment of service. However, some spouses, especially ones that want to stay married or make the process complicated, can be evasive or try anything to frustrate the process. The easiest way to ensure proper service is for the filing spouse to hire a professional who is licensed and experienced in delivering legal documents to difficult parties. The cost is usually minimal and can help prevent a delay in your case. If your spouse retained an attorney, you could arrange to have the paperwork delivered to the attorney’s office. Negotiate a SettlementIn cases where the parties have differing opinions on important topics, like child custody, support, or property division, both spouses will need to work together to reach an agreement. Sometimes the court will schedule a settlement conference, which is where the parties and their attorneys will meet to discuss the status of the case. The court may schedule mediation, which is where a neutral third-party will help facilitate discussion between the spouses in hopes to resolve lingering issues. Some states require participation in mediation, while others do not. However, mediation often saves significant time and money during the divorce process, so it’s often a good route for many divorcing couples. Divorce TrialSometimes negotiations fail despite each spouse’s best efforts. If there are still issues that remain unresolved after mediation and other talks, the parties will need to ask the court for help, which means going to trial. A divorce trial is costly and time-consuming, plus it takes all the power away from the spouses and puts it in the hands of the judge. Negotiations and mediation sessions allow the couple to maintain control and have more predictable results than a divorce trial, so it’s best to avoid a trial if possible. Finalizing the JudgmentWhether you and your spouse negotiated throughout the divorce process, or a judge decided the significant issues for you, the final step of divorce comes when the judge signs the judgment of divorce. The judgment of divorce (or “order of dissolution”) ends the marriage and spells out the specifics about how the couple will allocate custodial responsibility and parenting time, child and spousal support, and how the couple will divide assets and debts. If the parties negotiated a settlement, the filing spouse’s attorney typically drafts the judgment. However, if the couple went through a divorce trial, the judge will issue the final order. When people decide to get a divorce, they usually don’t know what to expect. After all, divorce is a complicated legal process, and it can be full of unpleasant surprises and frustrating delays. It’s always helpful to review a legal divorce timeline to give you a general understanding of what’s likely to happen so you can help you feel more comfortable at an uncomfortable time. The following chronology gives a general idea of how an average divorce will proceed, although your divorce may not follow the exact timeline below because of specific issues between you and your spouse or because of specific laws in your state. Grounds for DivorceDivorce grounds are the legal reasons on which you’re basing your request that the court end your marriage. Grounds fall into two categories: fault-based and no-fault. Fault-based grounds are those that require you to prove that your spouse did something wrong, which caused the divorce. Some typical grounds in this category are adultery, extreme cruelty (physical or mental), and desertion. Today, there aren’t many benefits to filing for a fault-based divorce. However, if your state views fault as a factor in determining alimony or division of marital property, it’s something to consider. No-fault divorce is primarily based on “irreconcilable differences” or the “irretrievable breakdown of the marriage.” In short, these basically mean that you and your spouse can’t get along anymore, and there’s no reasonable prospect that you’ll reconcile. No-fault has become the avenue of choice in most divorces. There are various reasons for this. Because you don’t have to prove your spouse did something wrong, there’s typically less anxiety and tension during the divorce process. This is a big benefit, especially if there are children involved. Also, when you don’t have to fight about fault, the divorce may move more quickly. And, less arguing almost always translates into lower legal fees. Alimony in a DivorceThe laws regarding alimony, which is also known as “spousal support” or “maintenance,” have evolved over the years. The current trend is away from lifetime or permanent alimony, which is now typically reserved only for long-term marriages, generally considered to be anywhere from 10 to 20 or more years, depending on your state. Another type of short-term spousal support is “reimbursement” alimony, often awarded in short marriages where one spouse contributed to the other’s pursuit of a college or graduate school degree. The theory is that contributing spouses deserve to be repaid for the effort and costs they expended in furthering the other spouse’s education. Some common factors a court considers when awarding alimony are: Preparing Your DivorceThe Utah Courts site offers online forms for completing an uncontested divorce available here and or in hard copy at your local courthouse. The following documents must be filed with your divorce paperwork: Divorce LawyerWhen you need a divorce lawyer in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
The post How Long Does It Take To Get Served After Filing Divorce? first appeared on Michael Anderson.
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How Long Can An Executor Hold Money After Probate? How To Get A Restraining Order In Utah? Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/how-long-does-it-take-to-get-served-after-filing-divorce/ Utah Real Estate Code 57-1-5: Creation Of Joint Tenancy Presumed, Tenancy In Common, Severance Of Joint Tenancy, Tenants By The Entirety, Tenants Holding As Community Property.(1) (a) (i) Beginning on May 5, 1997, every ownership interest in real estate granted to two persons in their own right who are designated as husband and wife in the granting documents is presumed to be a joint tenancy interest with rights of survivorship, unless severed, converted, or expressly declared in the grant to be otherwise. (iv) Joint tenancy may not be established between an entity or organization and another entity or organization. (b) Every ownership interest in real estate that does not qualify for the joint tenancy presumption as provided in Subsection (1)(a) is presumed to be a tenancy in common interest unless expressly declared in the grant to be otherwise. (6) the amendments to this section in Laws of Utah 1997, Chapter 124, have no retrospective operation and shall govern instruments executed and recorded on or after May 5, 1997. Tenancy in CommonTenancy in common is the most prevailing form of concurrent ownership of real property used by unmarried people. In a tenancy in common, two or more people own the same parcel of land in undivided interests which may be equal or unequal in size. For example, two people each may own a ½ undivided interest or one might own a 25% undivided interest and the other one the remaining 75% interest. Whatever the size of the undivided interests, each of the owners is entitled to the use and possession of all of the property. Each owner’s undivided interest in the property is freely alienable by sale, gift, or otherwise and, therefore, this form of concurrent ownership is the most unrestricted form. Each owner is free to sell, encumber, and allow that owner’s interest in the property to pass by will or intestate succession to the owner’s heirs or devisees (the other owners having no right of survivorship in any other owner’s undivided interest in the property). Someone who purchases property for investment purposes, who wants to be able to devise his or her property pursuant to a will or trust, or who simply does not have a plan for the property should consider this form of ownership. Although a tenancy in common allows each owner the freedom to dispose of that owner’s interest in the property as that owner chooses, there are a few obligations and potential problems that anyone taking title to property as a tenant in common should consider: • Generally, a tenant in common who possesses the property does not have to pay the other owners for possession of the property as long as the other owners are free to use and possess the property as well. If, however, one owner denies the other owners the right to use and possess the property, those owners may take legal action to regain possession of the property and may be entitled to damages. Joint Tenancy with the Right of SurvivorshipA joint tenancy with the right of survivorship is similar to a tenancy in common, having the same attributes mentioned above, but with one very significant additional attribute: the right of survivorship. Under a joint tenancy with the right of survivorship, when one owner dies, the other joint tenant gets that owner’s share in the property, regardless of the provisions of the deceased owner’s will or the laws of intestate succession. If the ownership interests among three or more joint tenants are held in unequal shares, the share of the deceased owner is divided among the surviving joint tenants according to their respective pro rata interests, unless the creating instrument provides otherwise. Because of the effect of this form of concurrent ownership on the disposition of one’s property after death, a joint tenancy with the right of survivorship should be used only after consultation with an estate planning professional. • Make sure the instrument creating the joint tenancy with the right of survivorship explicitly states that the purpose of the instrument is to create a joint tenancy with the right of survivorship and not a tenancy in common. If two unmarried people take title to property, the law presumes that they will hold title as tenants in common unless the language in the instrument clearly provides otherwise. • Despite the “right of survivorship” one joint tenant can sever the joint tenancy with the right of survivorship by transferring that owner’s undivided interest to another party and thereby create a tenancy in common. Despite the intention of the party creating the joint tenancy with the right of survivorship, one joint tenant can unilaterally destroy that form of concurrent ownership. Tenancy by the EntiretyOnly a husband and wife (a bill has been introduced in the General Assembly to change references to “husband” and “wife” in tenancy by the entirety statutes to “spouse”) can own property as tenants by the entirety. It was the early common law’s version of “social security” because of the legal fiction that neither the husband nor the wife owns the property; rather, it is the marital state or union that owns the property. As a result, a lien or judgment docketed against one spouse will not attach to property owned as tenants by the entirety because the property is not owned by the husband or the wife, but by the marital entity. If two people who are married to each other take title to property, they will own the property as tenants by the entirety unless the instrument of conveyance clearly provides otherwise. Note, however, that a man and woman who own property and then subsequently get married do not then automatically own the property as tenants by the entirety. They must record a new instrument of conveyance to create a tenancy by the entirety. A tenancy by the entirety is similar to a joint tenancy with the right of survivorship, but with a few additional characteristics: • Whereas a joint tenancy with the right of survivorship can be severed by one owner, neither spouse can sever the tenancy by the entirety by selling an interest in the property. In fact, neither spouse may sell or encumber the property or any interest in it without the other spouse executing the deed, deed of trust, or other instrument. One spouse also cannot devise his or her interest in a will. • Despite the common law protection of the property from the individual debts of the husband and wife, there is a limited exception for federal tax liens. The United States Supreme Court held that a federal tax lien against one spouse will attach to that spouse’s “interest in the property” pursuant to state law, but it is still unclear exactly what that interest is for federal tax purposes in states such as North Carolina where, at least until death, divorce, or voluntary conveyance, neither spouse is considered to own any interest in the property. • A tenancy by the entirety may be destroyed only by: (i) voluntary partition where the married couple conveys the property to themselves as tenants in common (neither spouse can force a partition); (ii) absolute divorce, in which case the former spouses become tenants in common, each with a ½ undivided interest in the property; or (iii) death of one spouse, in which case the survivorship element of the tenancy by the entirety automatically makes the surviving spouse the sole owner of the property. How to Take Title in Joint TenancyTo create a joint tenancy, be sure to get the right legal words on the title document. Joint tenancy is a popular way to avoid probate. It certainly has the virtue of simplicity. To create a joint tenancy, all you need to do is put the right words on the title document, such as a deed to real estate, a car’s title slip, or the signature card establishing a bank account. General Rule In Majority Of StatesIn the great majority of states, if you and the other owners call yourselves “joint tenants with the right of survivorship,” or put the abbreviation “JT WROS” after your names on the title document, you create a joint tenancy. A car salesman or bank staffer may assure you that other words are enough. For example, connecting the names of the owners with the word “or,” not “and,” does create a joint tenancy, in some circumstances, in some states. But it’s always better to unambiguously spell out what you want: joint tenancy with right of survivorship. Joint tenancy or a form of ownership that achieves the same probate avoiding result is available in all states, although a few impose restrictions. Remember that one rule applies in every state except Colorado, Connecticut, North Carolina, Ohio, and Vermont: All joint tenants must own equal shares of the property. If you want a different arrangement, such as 60-40 ownership, joint tenancy is not for you. State Restrictions on Joint Tenancy• Alaska: No joint tenancy in real estate, except for husband and wife, who may own as tenants by the entirety The form of ownership in which you take title to property can significantly affect the way in which you can use the property, dispose of it, and pass it to others. Because there are benefits and consequences to taking title to property by each of the ways described above, especially regarding estate planning matters, it is important to take time to consider, along with the many other considerations you make when purchasing property, exactly how you intend to use and ultimately transfer the property. Utah Real Estate LawyerWhen you need legal help from a Utah Real Estate Attorney, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
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Procedure For Obtaining Federal Firearms License How Long Can An Executor Hold Money After Probate? Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/utah-code-57-1-5/ The application of probate is the easy part. The wait for money, on the other hand, can be painfully long. The duration depends on the size and complexity of the estate to be shared. Typically it can take between 6 to 12 months. The costs for probate can be met from the estate. If it is a contentious probate, it can take even longer. For instance, some assets might be tied overseas. In some cases, there might be a property that has to be sold. In addition, the estate itself might also be entangled in legal issues that need solving before distribution. All these factors make it difficult to have a fixed waiting period. The estate administration process can take a long time, which is naturally frustrating for everyone involved. If you’re the executor of a large estate, you might hear this question a lot, phrased in different ways. However, timings do depend on how complex the estate is, and whether anything unexpected happens during the estate administration process. There are a lot of things that can have an impact on what happens after probate has been granted. Here are some reasons the estate might take longer than usual to settle:
Administering the EstateThe ‘Estate’ is the collective term for everything the deceased person owned, such as property, money in the bank, personal possessions, vehicles and investments. All of these things will need to be officially administered according to the law in Utah. This will involve: But for more complex Estates, it may be a year or more before the funds are distributed. Issues that can delay payments to beneficiaries include: When someone passes on, their next of kin are obligated to apply for a grant of probate. Once they have sworn the oath, it gives them a legal responsibility to handle or manage any property, assets, and cash possessions left behind. This is commonly referred to as estate administration. The person who receives this mandate is called the executor. Besides managing the estate, the executor is tasked with tying all loose ends on behalf of the deceased. This means paying debts, paying taxes, collecting owed funds, keeping tabs on estate accounts, and distributing assets according to the will. Processes involved in Executing Probate• Collecting the Assets: Your first action as the executor is to collect all the assets of the deceased. This might include liquidating some assets for easier sharing. Estate ComplexityA Grant of Probate allows the executor to access the funds and bank accounts of the deceased. In simple estate cases, the deceased may only have a single account, but with every institution having its own process for allowing access, transferring money and closing the account, this can reasonably take around four weeks. It is not as simple, for example, as transferring money straight from the deceased’s account into your own. The people dealing with the estate might have to open a new account to collect the estate together before distributing it. This is the best case scenario. More often than not, the deceased has multiple accounts or other, more complex, financial assets. As such, the time it takes to access and collect the deceased’s money can take months, depending on the scale of the administration required, and we haven’t even mentioned property yet. If the estate owns one or more properties, they may need to be sold before any money can be distributed to beneficiaries and this can take a prolonged amount of time. Even if you’re only expecting a small inheritance that could be covered by the money collected from the deceased’s accounts, you may still have to wait, as the estate’s liabilities (such as debts) need to be paid before beneficiaries. For example, an estate may have collected $10,000 from the deceased’s account, and you may be entitled to $1000, while estate liabilities may require $15,000. In this instance, the house would need to be sold in order to pay off the liabilities before you can receive your inheritance. Alongside the general complexities of an estate, there are a number of legal considerations that can result in a solicitor holding the estate’s money for an extended time after probate. • Advertisements for Creditors: It is important to understand that the personal representative administering the estate (whether as an executor or administrator) is legally responsible for the estate. This means if the estate owes creditors and fails to pay these debts, the personal representative is liable. For that reason, the solicitor administering the estate, whether as or on behalf of the personal representative, has to take steps to protect themselves or their client from liability. One of the ways they do this is by placing an advert in local media and The Gazette to give creditors a chance to make a claim. A minimum of two months needs to be provided for creditors to come forward. Debts don’t go away if not claimed within two months but the creditor would have to claim against the beneficiaries if that have received the assets before the creditor made their claim. Therefore, it can be safe for the beneficiaries if the executors keep hold of money to pay debts until reasonably sure they have identified everything. Utah Probate LawyerWhen you need legal help with a Utah Probate, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Procedure For Obtaining Federal Firearms License Can I Change The Interest Rate On My Car Loan In Bankruptcy? Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/how-long-can-an-executor-hold-money-after-probate/ In the past, successful defenses against foreclosure were relatively rare. Since the foreclosure crisis however, many homeowners have successfully challenged foreclosure actions. This is due, in large part, to the unearthing of more and more evidence that the mortgage servicing industry has been rife with errors. Because of this evidence, courts that once rubber-stamped foreclosure actions have shifted their sympathies towards homeowners. Homeowners and their attorneys may take advantage of this change in judicial attitude and challenge foreclosure actions in many different ways. Common Foreclosure DefensesEach state has specific procedures for foreclosures. In some cases, the foreclosing bank doesn’t follow state procedural requirements for bringing a foreclosure action. If this happens, you might be able to challenge the foreclosure. If your challenge is successful, the court will issue an order requiring the foreclosing bank to start over. Virtually all judges will overlook errors that are inconsequential, like the misspelling of a name. Similarly, if the foreclosing bank’s error doesn’t actually cause you any harm, it may not be worth fighting over. More serious violations will get a more serious response from the court. Only the loan holder (the loan owner or someone acting on the owner’s behalf) may foreclose. If the foreclosing party can’t prove it owns the loan, then it doesn’t have standing to foreclose. Banks sometimes have trouble producing the promissory note proving loan ownership. In many cases, the debt has been sold to different banks and investors sometimes over and over again. If the loan was bundled and securitized, determining if the foreclosing party actually owns it can be even more of a challenge. Even in situations where the original note is available, the endorsements sometimes aren’t in order. These days, banks and investors are pretty careful about addressing any gaps in their paperwork before initiating a foreclosure. Also, courts all over the country have heard many cases on standing and have decided against homeowners in many situations. It’s now much more difficult to win your case based a standing argument; though, your case might be the exception. Here are a few more common foreclosure defenses: How to Raise a Defense to ForeclosureIn order to raise a defense to a foreclosure action, you must bring the issue before a judge. This is automatic in about half the states, where foreclosures are judicial, which means the foreclosure is accomplished through a civil lawsuit. In the other states, foreclosures typically take place outside of court (non-judicial foreclosures) and you have no automatic means to mount a legal challenge. To have your defenses ruled on by a judge in these states, you have to file a lawsuit alleging that the foreclosure is illegal for some reason and asking the court to put the foreclosure on hold pending the court’s review of the case. If you are unable to make your mortgage payments and are facing foreclosure, the worst thing you can do is ignore the problem. Some people assume that they can delay the process by doing nothing. That is not the case. Do not delay. Start by trying to negotiate a solution with your lender or by calling a U.S. Consumer Finance Protection Bureau (CFPB) counselor. You may be able to negotiate a lower interest rate, a temporary reduction in payment, or an extension of the loan term. If there is little hope of resuming payments and reinstating the mortgage, consider negotiating for a short sale, in which the lender allows the sale of the property for less than the amount owed on the mortgage. A lender may also accept a deed-in-lieu-of-foreclosure, with which the owner transfers the house to the lender with no further liability. If the situation is truly desperate, consult a bankruptcy attorney. If you are unable to negotiate a solution, consult a lawyer. Do not become involved with a “foreclosure rescue” company. These companies often make very attractive offers to take over your mortgage and allow you to continue to live in your home while you get back on your feet financially. Many are fraudulent and will use the title to your house to refinance and disappear with the money. Keep in mind that when you purchased your property, you likely signed both a mortgage or trust deed, which imposed a lien on the property and enables the lender to foreclose, and a promissory note. The note makes you personally liable and gives the lender the right to pursue payment through your other assets, for example, by garnishment of wages. Do not just walk away from a property without consulting an attorney about your liability. Foreclosure State LawForeclosure differs from state to state. If you are in a state that permits non-judicial foreclosure, the lender can cause a foreclosure sale simply by providing notice. This is also called “power of sale” or statutory foreclosure. There is no requirement that the matter go to court. If the borrower has a defense, the borrower must file a lawsuit challenging the foreclosure and requesting that the judge “stay” (delay) the foreclosure suit. In 22 states, foreclosures are typically accomplished through civil lawsuits and judicial foreclosure orders. The borrower receives a foreclosure complaint and notice of a hearing. In most cases, the hearing is very short because the judge need only determine that the debt is valid and that the borrower is in default. Most borrowers do not dispute those facts but only want to discuss why they are unable to pay. Unfortunately, loss of a job, illness, and similar situations are not legal defenses. If the borrower has a legal defense, the borrower must properly raise and prove it. Defenses To ForeclosureForeclosure laws are very complex, and the lender may have made a mistake in the process. A mistake in giving notice or in the timing may be a defense if it is not a harmless error, such as a misspelling. The lender may also have made mistakes before initiating foreclosure. For example, mortgages are commonly sold, and the owner of the debt often uses a separate company to “service” the loan. The privately-owned Mortgage Electronic Registration System (MERS) tracks the servicing rights and ownership of mortgages and sometimes assigns rights without recording the change in local property records. With multiple companies involved, borrowers sometimes send payments to the wrong company and are sometimes charged fees and penalties that were not authorized by the documents they signed. The company servicing the loan may have credited payments incorrectly or may have incorrectly calculated the amount that is required to reinstate the mortgage. The company that initiated foreclosure may not be able to prove that it owns the loan. Many of the mistakes can be fixed, so bringing them to the attention of the court will only cause a delay and not prevent foreclosure. The same is true of the Service members Civil Relief Act. That delay can be used to try to sell the property, negotiate with the lender, or seek other solutions. Under the Service members Civil Relief Act, 50 U.S.C. 501, active duty military personnel have special protections in foreclosure and other court proceedings. In a non-judicial foreclosure state, the Act may require the lender to go to court. In court proceedings, the service member may contact the court with proof of active duty and request a stay in the proceedings and even request the appointment of an attorney. The Act gives the courts flexibility to protect the service person. It is also possible that a mortgage was tainted from the beginning. In rare cases, a mortgage may be “unconscionable” because it is so unfair that it is “shocking.” Such situations typically involve people who are unable to protect their own interests, such as people with limited English or limited ability to read, who were not represented by a lawyer, and who were pressured into signing a one-sided agreement that contained an unusual term. More commonly, the mistake involves a federal or state statute. These statutes provide for a number of remedies, including, in some cases, to cancel or rescind the mortgage. The Truth in Lending Act, 15 U.S.C. 1602, requires that lenders make certain disclosures about costs and payments in the original loan documents and make those disclosures at specific times. To examine the required documents, visit the CFPB website. The Act has been amended and has been implemented by rules that provide special protections for borrowers in high-cost loan situations and those using home equity lines of credit. Some states also have special protections for people facing foreclosure. Consult your state’s consumer protection bureau for further information. One way to attack a foreclosure is to argue that the foreclosing party does not have standing to foreclose. If the foreclosing party cannot produce the promissory note on which the loan is based, the court likely will dismiss the case. Producing the promissory note might be challenging if the mortgage has been transferred several times since the original lender. This “produce the note” defense is less widespread than it used to be, since foreclosing parties have put more effort into record-keeping. Many courts are now suspicious of these arguments; although that does not mean that you cannot make the defense if it applies. If the foreclosing party failed to follow the procedures required by state law, you can ask the court to dismiss the case. This may delay rather than permanently prevent the foreclosure, since the court probably will dismiss the case “without prejudice.” As a result, the foreclosing party can file the case again if they meet the requirements. The error must be at least somewhat meaningful for a court to dismiss a case on procedural grounds. This may involve showing that you were harmed by the error. Perhaps you never received notice of the default, for example, as required by the terms of the mortgage. Substantive Foreclosure DefensesAs noted above, mortgage servicers handle a huge quantity of accounts, and their employees can make mistakes. For example, they might have failed to promptly credit your payments or might have credited your payments to another account. This would result in the record incorrectly stating that you have missed payments, which might lead to a foreclosure. They might also make a mistake in stating the amount that you need to pay to reinstate a mortgage. This may seem like a minor problem, but an overstatement can cause a homeowner to give up their home because they believe that they do not have enough funds to reinstate the mortgage. If you have already modified your loan, but the mortgage servicer has not adjusted its records to reflect the modification, it might proceed with a foreclosure based on this mistake. You can probably get rid of the foreclosure proceeding if you can show that you are making payments under the loan modification plan. Mortgage servicers also can engage in outright abuse. They may pile up excessive fees that are not permitted under the terms of the mortgage. Or they may violate federal and state laws that govern their interactions with homeowners. They may engage in dual tracking, which means pursuing a foreclosure while they are also negotiating with a homeowner on a way to avoid the foreclosure. Types of Foreclosure Defenses In UtahIn Utah, foreclosure defenses (for residential foreclosures) can be categorized into three different arguments. Those arguments focus upon either Foreclosure Lawyer in UtahWhen you need to stop a foreclosure, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
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