How Your (Good) Attorney Should Treat You

  1. Handling Your Stress. When a client has a legal problem, he or she is oftentimes under financial and consequent emotional stress. The good attorney should listen to you enough to be able to “walk in your shoes” to feel as you do about your case, and to respect not only your views but your feelings as well, and be respectful, patient, and tactful toward you. Some attorneys are too gruff and impatient to deal with your feelings. Find one who will.
  2. Game Plan. Your attorney, if sufficiently experienced, should be able rather quickly to formulate and communicate a “game plan” of resolution for you, e.g., how long it will take, how much it may cost you, and what are the anticipated results? He or she needs to articulate to you how he or she can “put a net financial benefit” in your pocket by hiring him or her.
  3. Ongoing Communications. Your attorney should keep you updated on your case, i.e., what’s going on, and send to you copies of work he or she does and copies of the papers from opposing counsel to which he or she responds. He should never be too busy to call or email you back within 24 hours of your inquiry or have a competent staff member so do.
  4. Billing Statements. They should be monthly and carefully itemize/describe each task done so you can see for what you’re paying. They should answer your questions, rather than raise ones.
  5. Fighter on Your Side. Your attorney should at all times make you feel as if he or she is vigilantly and effectively fighting for you on your case. If not, verbally “light a fire” underneath him or her so to do.
  6. Right to Change Counsels. You have the absolute right to change your legal counsel generally at any time. Exercise this right sparingly because it will take new counsel time to become familiar with your case and generally require you pay a new retainer for that. So if you are unable any longer to work with your present counsel, and can afford partly to start over again with new counsel, do so.
  7. Choosing the Right Attorney to Start. Your most reliable referral is from an already satisfied client of the attorney. Feel free to ask the attorney for one or more referral sources, i.e., a “satisfied client.” He or she should not hesitate to provide them to you.
Bulk Sales Law, Bulk Sales Act

Buying a Business? Be Aware of the Bulk Sales Law

You just bought a business.

Congratulations!

But a moment that should be filled with excitement can quickly shift into overwhelming dread as phone calls from creditors begin filling your voicemail, eager to recoup the debts owed on the business by the previous owner.

Not your problem? Think again!

If you have failed to comply with the California’s Bulk Sales Law, any debt incurred by the business you just purchased may now be yours.

Fortunately, you can avoid this difficult predicament with some simple education.

So, what even qualifies as a Bulk Sale? We thought you may be wondering by now.

A “Bulk Sale” is defined as any sale outside the ordinary course of the seller’s business and of more than half the seller’s inventory and equipment as measured by the fair market value on the date of the Bulk Sale Agreement.

According to California’s Bulk Sales Act, the buyer of a “Bulk Sale” is required to post official notice at least 12 days prior to the sale/purchase for any potential creditor’s review. This notice must include:

  • A statement verifying that a bulk sale is taking place.
  • The location and description of any assets included in the sale
  • Where and when the sale took place
  • The name and addresses of both the seller and buyer
  • Is the “Bulk Sale” a “Small Cash Sale”? (This will place the entire sales price into escrow)

This process ensures that any creditors are paid debts owed directly from escrow, which is essentially the seller’s profits. It guarantees that the new business owner will not be liable for any of  the previous owner’s debts, and,  most importantly, that their initial excitement isn’t spoiled with a collector’s phone call.

So, buyers and beware: buying a business can be complicated, but with the right help the only thing you’ll need to focus on is how to make it successful.

Need more information? Contact Attorney Peter C. Wittlin at pwittlin@gmail.com or (949) 430-6529.

Bankruptcy options
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Bankruptcy Options: Chapters 7, 13, and 11

As a bankruptcy attorney, I’ve represented many clients in obtaining relief from debt. Here are your options in Bankruptcy Court:

Defining Bankruptcy

Bankruptcy is a federal court procedure (done in Santa Ana, LA, or Riverside), which enables consumers and/or businesses to rid themselves of all, or substantially reduce, their unsecured debt, and extend the time to pay past due secured debt. Unsecured debt is generally consumer credit card debt and medical bills, whereas secured debt is mortgage debt on your home or other realty, and against your car(s).

Chapter 7:

This is called “liquidation,” i.e., whatever assets you have which are not exempt from creditors (most assets are exempt so you keep them), are given to the chapter 7 trustee to sell and distribute any net sale proceeds to your creditors pro rata. Chapter 7 is good for you to extinguish your unsecured debt, and is recommended if you (husband & wife) have less than $100,000 equity in your home (less than $75,000 equity for individuals, and less than $175,000 for debtors 65 years or older) so you keep your home. Chapter 7 is available to you every 8 years.

In a Chapter 7 case, if you have mortgage (secured) debt on your home or cars, you’ll generally have to pay it as it becomes due. You may be able to extinguish certain back income taxes owing to the IRS or to the FTB if they are for taxable years for which the last day to pay them is at least 3 years before you file your Chapter 7 bankruptcy petition.

The attorney’s fees you pay for a Chapter 7 range from about $1,800 to $2,500, but may be more depending on how much work special work your attorney may be required to do, e.g., to reaffirm debt, dealing with tax claims or student loans, opposing adversary actions by creditors (rare).

Chapter 13:

This is called “individual debt readjustment, i.e., you keep all of your assets, including your home regardless of its equity, provided you pay over 36 to 60 months all of your “net disposable income” after household expenses to the chapter 13 trustee toward satisfying unsecured creditors and to cure the arrears owing to your lenders on your home and cars. Whatever your monthly payment is to the Chapter 13 trustee, you add 11% to cover his operating expenses.

Chapter 13 can save your home from foreclosure, and hence is generally the reason to select it over Chapter 7. Filing a Chapter 13 will automatically stop any threatened foreclosure sale of your home. (A Chapter 7 filing would do that, but a threatened foreclosure sale can be renoticed, but not in a pending chapter 13 case.)

Chapter 13 is available only to individuals (husband and wife, included), whose combined unsecured debt does not exceed $394,725, nor secured debt exceed $1,184,200 (as of Year 2017). (These figures tend to increase some every year.)

The attorney’s fees you pay for a Chapter 13 are generally $4,000 to $5,000, depending upon the number of unsecured and secured creditors, and also how much work the attorney may have to do to have your Plan approved by the Court. Such fees may be payable over time to the attorney, rather than all “upfront.”

Chapter 11:

This is called “reorganization.” It is available to individuals whose assets

 

exceed the Chapter 13 ceiling, and to partnerships, LLCs, and corporations, who want to stay in business and preserve their assets, but need time to pay off unsecured and secured debt. Unsecured creditors must receive what they would receive in a chapter 7 liquidation.

The attorney’s fees for Chapter 11 generally run in the five figures, i.e., $20,000 or more, depending upon the amount of work needed to have a Chapter 11 Reorganization Plan approved by the Court. Chapter 11’s are “paper-intensive,” requiring periodic written accountings and disclosures of business operations, but if done correctly can save your business from a forced chapter 7 liquidation.

Which Bankruptcy Option is Best for you?

While this article serves as a helpful overview of your bankruptcy options, tailoring my legal advice to your specific financial situation is best done in person.

Disclaimer: The information in this article by Attorney, Pete Wittlin, is for promotional purposes only, and should not be relied upon without your firstly consulting with learned bankruptcy counsel familiar with your particular financial situation.

Whether you are a debtor or creditor, it is most advisable that you not represent yourself in Bankruptcy Court, but hire an experienced bankruptcy attorney so to do. It has been said that, “Anyone who represents himself in court has a fool for a client, and a jackass for an attorney.” So with that chuckle, be so aware.

For more information, concerns or clarification, please contact Attorney, Peter C. Wittlin, at pwittlin@gmail.com or (949) 430-6529.

Probate Law

What Probate Law is… and Isn’t

The period following a loved one’s death can be very painful and confusing. Often times, it also happens that family members have very different ideas about the deceased’s final wishes. The repercussions of this can be overwhelming; they also merit the obtaining of solid legal assistance. This is why there’s a category of law designed specifically to address these types of issues: probate law. Let’s discuss what probate law is… and isn’t.  

What is Probate Law?

Probate law and the probate process interpret the instructions of the deceased party — via their will — and administrate the distribution of the deceased person’s estate accordingly. The probate period typically takes several months and is subject to both court and attorney costs.  

Central to this formal, legal process is the procedure whereby the will of the deceased is “proved to be valid.” Once this critical requirement has been fulfilled, the deceased’s property and assets can then be retitled and transferred to the beneficiaries of the will.  

An obvious question is, “What if the deceased did not construct a will?” In this case, beneficiaries are designated by state law.

Technical Aspects of Probate Law

Below are a few of the more technical aspects which comprise probate law:  

  1. Requires publication of legal notices. All creditors be notified at time of death.

  2. Ensures creditors / remaining debts are paid (prior to distribution of deceased’s assets to individuals in will).

  3. Determines an executor of the deceased’s will.

  4. Institutes various regulations, including time constraints (i.e. time frames for filing and objecting to claims against the estate).

  5. Evaluates the estate’s remaining tax obligations.

 

Misconceptions of Probate Law

The probate process is already complex enough, so avoid complicating it further by making decisions based on falsely held assumptions. Here are some common ones balanced by realities:

“I have to go through the probate process, there’s no getting around it.”

False: This process can be avoided through mechanisms such as living trusts.

“Once the courts get involved, I have no control over what happens next.”

False: Parties may challenge any aspect of probate law, including the validity of the will, status of the person serving as the deceased’s personal representative (i.e. executor/ executrix.) or whether the personal representative is properly administering the estate. 

“Once the deceased determines their personal representative, that decision is final.”

False: Beneficiaries or heirs have the option of objecting to the personal representative named in the deceased’s will. When this occurs, a trial is usually held. During trial, objectors can offer evidence / testimony to convince the judge to overturn a will’s provisions.

The information above is intended as a brief primer on the often-times  obscure workings of probate law. For an in-depth consultation regarding your specific situation contact Peter Wittlin via PeterWittlin.com today.

Sources:

Probate Law – Probate | Laws.com

bankruptcy rights, landlord rights

Heading Toward Bankruptcy? Know Your Rights!

No one plans for bankruptcy… but unfortunately, that seems to be where you’re currently heading. We realize that this struggle is as much of a mental battle as it is a financial hardship. For that reason, you need to keep your head in the game! Avoid adding insult to injury, by making sure you’re not taken advantage of any further. Here’s some tips you can implement, in order to lessen the blow of a (potential) bankruptcy.

5 Tips to Lessen the Blow of Bankruptcy

  1. Get Over the Shame! Half the battle lies in overcoming the shame associated with declaring bankruptcy (or heading toward it). Not convinced you’re up to it? Realize that the stats are on your side. In fact, statistics show that most bankruptcies have zero to do with reckless spending and are instead caused by things like unmanageable medical costs and unanticipated job loss (i.e. layoffs). These figures prove that some things in life really are beyond a person’s control… so take it easy on yourself!
  1. Explore Non-Bankruptcy Options. Although you’re struggling financially, your situation doesn’t have to inevitably result in declaring bankruptcy. Instead, consider debt consolidation options such as: Debt Management Plans, Debt Consolidation Loans, and/or Debt Settlement Plans; these can serve as welcome alternatives to filing for bankruptcy.
  1. Know Which Chapter of Bankruptcy to File For. While Chapters 7 and 13 are the most well known, they’re not the only methods of filing for bankruptcy. Chapters 11 and 12— which are designed for specific debtors— may also be at your disposal. Our point? Perform your due diligence in order to determine which method most suits your needs. This will ensure that your current financial problems get solved as efficiently as possible.
  1. File for Bankruptcy Before Your Home Foreclosure. While we realize that this isn’t always an option, should you find yourself faced with the choice to declare bankruptcy before or after a home foreclosure, choose the former. While the reasons for doing so are technical in nature, this option basically allows you your mortgage debt to become discharged (i.e. relieving you of the burden of having to pay it).
  1. Use Consumer Info as a Resource. Don’t passively succumb to bankruptcy. Instead, empower yourself by becoming as informed as possible, by studying your available resources. While there are too many facts and considerations to be able to relate them all here, visiting the government’s official consumer information webpage on bankruptcy will ensure that you’re able to do all of the above.

Sources:

https://www.debt.org/bankruptcy/statistics/

http://www.alllaw.com/articles/nolo/bankruptcy/which-type-chapter-7-chapter-13.html

http://www.alllaw.com/articles/nolo/bankruptcy/file-before-after-foreclosure.html#

bankruptcy rights, landlord rights
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Your Landlord Rights Update for 2016

Beginning January 1, 2016, new laws regarding landlord-tenant rights will be put into place regarding termination of tenancy for domestic violence, the allowance of clotheslines or drying racks and the responsibility of mold.

Termination for domestic violence:

In order for a tenant (or household member residing on the property) to be terminated from the premises for domestic violence, the landlord was required to provide him/her with a 30-day written notice of termination. The notice was to be administered provided that a copy of a temporary restraining order or protective order or a copy of a peace officer’s report stating that a report alleging domestic violence or sexual assault has been filed. The law has been changed to require a notice of only 14 days for termination of tenancy with the above stated documentation.

Allowance of clothesline or drying rack:

Landlord approval of clotheslines or drying racks is now required provided that it (1) does not interfere with maintenance or the property, (2) does not create a health or safety hazard, (3) tenant seeks approval to attach to clothesline to a building prior to attachment, (4) clothesline or rack does not violate time/location restriction previously imposed by the landlord and (5) the tenant has received landlord’s approval for its use.

Mold:

The landlord is not obligated to repair mold dilapidation until he/she has received (actual) notice of dilapidation or if the condition exists due to the tenant interfering with the landlord’s attempt make necessary repairs prior to incident.

For further questions, concerns or clarification, please contact Peter C. Wittlin, esq.
Realtor Law Update- Landlords & Tenants