Entireties Exemption in Florida and New Jersey

The adversary proceeding in the case of In re Kirshner, Case No. 05-34406, Adversary Case No. 06-01872 (Bankr.S.D.Fla. October 30, 2007)(Hyman, C.J.) presented various issues to the court. Among them was the trustee's objection to the debtor's claim of exemption of certain personal property as held as tenants by the entireties. The case was commenced by the filing of an involuntary chapter 7 petition in New Jersey and was transferred to the Southern District of Florida. The debtor consented to the entry of an order for relief but converted the case to a chapter 11 case. The chapter 11 case was later converted back to a chapter 7 case.

Pursuant to 11 U.S.C. section 522(b)(3)(B), an individual is allowed to exempt from the bankruptcy estate "...any interest in prooperty in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety...to the extent that such interest...is exempt from process under applicable nonbankruptcy law. 11 U.S.C. section 522(b)(3)(B). The court allowed the exemption of certain stock. The court found that the stock certificate was issued while the debtor resided in Florida and therefore the Florida law of tenancy by entireties applied. Furthermore, the court held that the trustee failed to introduce any evidence of any joint debt with the non-filing spouse.

The court also examined the exemption of the household goods under section 522(b)(3)(B). The court reviewed the six characteristics of property held as tenancy by the entireties - unity of possession, unity of interest, unity of title, unity of time, survivorship, and unity of marriage. In addition, the parties must have intended to create an estate of tenancy by the entireties. The court found that given the requirement of intent and the unity of time, the issue of whether a tenancy of the entireties was created must be determined under New Jersey law which was the state in which the property was acquired. The court noted New Jersey statutes does provide for the holding of personal property as tenants by the entireties if certain requirements are met. New Jersey Statutes section 46.3-17.2. But the court found that debtor did not meet the statutory requirements as to the household goods as the debtor did not produce a written instrument. In any event, the court apparently noted in footnote one, that in New Jersey property owned as tenants by the entirety is not exempt from the claims of an individual's sole (non-joint) creditors as is the case in Florida.

It is interesting to note that in footnote one, the court stated that in Florida, with limited exceptions, that entireties property does not become property of the estate when only one spouse files for bankruptcy. (citing e.g. In re Kossow, 325 B.R. 478, 483 (Bankr.S.D.Fla. 2005). This would be in contrast to a position that such property is initially part of the estate but is subsequently exempted out.

The debtor also sought to exempt his claim to the Rule 9011 motion that he filed against the petitioning creditors and their attorneys for allegedly having improperly filing the involuntary chapter 7 petition against him. The court held that before the issue of the exemption should be determined, it needed to be determed whether the Rule 9011 motion was property of the estate. The court noted that the 11th Circuit has held that federal law determines whether an interest is property of the bankruptcy estate but that property and interests are created and defined by state law. Witko v. Menotte, 374 F.3d 1040, 1043 (11th Cir.2004). The court found that under Florida law, a cause of action accrues when the last element constituting the cause of action occurs. In re Alvarez, 224 F.3d 1273, 1277 (11th Cir. 2000), Fla. Stat. section 95.031(1). The court found that the 9001 motion cause of action did not arise until the involuntary petition was filed against him and that it was not "sufficiently rooted" in the debtor's pre-bankruptcy past as was the malpractice claim in the Alvarez case. The court therefore found that the issue of the exemption of the Rule 9011 motion was moot as it was not property of the estate.

Florida Landowners Now Liable for Car Accidents Caused by Their Landscaping

In some great news for Florida drivers, the Florida Supreme Court held that homeowners may be liable for personal injuries and wrongful death from car accidents which are caused by the landowner's failure to prevent their landscaping from overlapping into a public right of way and obstructing other traffic or traffic signs and signals.

In reviewing the case of a 1997 truck accident, which claimed the life of a driver, the Supreme Court extended the liability, which already exists for commercial property owners, to homeowners who improperly allow their trees and bushes to extend over their property-line and into a public right of way. As South Florida personal injury attorneys, we believe that this codification of the law will truly benefit all those traveling on Florida roadways.

The minimal costs and effort now mandated upon private landowners, is greatly outweighed by the life saving benefits to Florida drivers. Finally, victims of Florida car accidents, whose cases were previously denied as unavoidable, now have the right to collect damages from private landowners who disregard the growth of their landscaping. On Thanksgiving, this is certainly something for which all Florida drivers should be thankful.

Why do so many lawyers give deceptive advice?

It has been a busy month at The Jaffe Law Firm. We have talked to a lot of people accused of DUI in Arizona, and a lot of these people also have spoken with other attorneys. While many of the attorneys these potential clients have seen have given them solid advice and information that is in their best interest, I find it very disturbing that many others do not. I am frustrated that many of these people whom I have spoken with believe the bad advice or information they have obtained elsewhere.

I started to think about why would a client believe or choose to follow blatantly bad advice in an Arizona DUI case? I'm not talking about bad advice about what to wear to court. I'm talking about the kind of bad advice that can result in stiffer fines, longer license suspensions, higher insurance and more jail or prison time. On the more harmless side, I'm talking about advice that causes the client to spend more money on an attorney than the client has to (yes, there are times when one is accused of DUI in Arizona where, because of that person's goals, it will not benefit them to hire an attorney to defend them).

After thinking about it I came to two possible conclusions: 1) the clients who ignored my good sound advice in favor of an illusion sold by somebody else are stupid; 2) the clients who ignored my advice wanted despertly to believe what the other or others had told them; or 3) the clients knew my adice was good, but because it was the truth, it left nobody for them to shift the blame to later on because I had been straight with them from the beginning. I don't know if there are other reasons, and it is certainly not my place to ask defendants who don't choose to retain my firm why they went somewhere else. Sometimes I see them in court later on, and sometimes the give me a look acknowledging their mistake, but by then it is too late. At that point it would be interferring with their relationship with the attorney they did hire to ask. So I keep my mouth shut, and service the clients who are enlightened enough to see that we give them the truth, 100% of the time, even though it means losing a whole demographic of clients who aren't ready for the truth.

It also caused me to ponder why some attorneys, who should know better, give clients misleading advice.

One approach is to scare the client into retaining and then behaving. I see this approach all the time (based on what clients who are smart enough to find their way into our office say). One manifestation is the scare tactic. Some firms, even on a first offense standard DUI, where the client is typically exposed to an expected sentence of one day (1 day) in jail... some firms tell them that they are exposed to 180 days in jail. Technically speaking, it is true that a misdemeanor DUI carries a maximum sentence of 180 days in jail. However, in my entire career, I have never, not even once, seen any judge sentence a person with an otherwise clean record to 180 days on a first offense DUI. Not even close.

So why do attorneys give that misleading advice? My guess is that it scares people into retaining them. My guess is also that, when the firm comes back to the client with an offer to do the mandatory minimum sentence (1 day), the firm then appears to be a hero to the client, and the client believes the firm has done them good. In many cases, the client would have gotten this same offer without ever hiring a lawyer at all. But as long as the client proceeds in ignorance, then the firm looks good, has to do no work, and gets to keep the 7k or 10k they charged the client for what amounted to 3 hours worth of work.

But why be a scumbag when regardless of the attorneys good or bad behavior, there are still the same large (but finite) number of potential clients out there who have the resources and intention to hire a private law firm to defend them? It amounts to laziness, I suppose. Or greed. Or incompetence. Or a secret bias against the very clients the firm seeks to defend (and therefore a rational cognitive justification for taking advantage of the client, and taking the client's money based on lies or half-truths).

I would love it if the Arizona State Bar Association would send under-cover people in to interview attorneys, posing as potential clients. I would love it if they would take action against attorneys who mislead potential clients and therefore diminish the public's perception of lawyers as a whole. I would love it if potential clients would educate themselves prior to being fooled by a TV ad or billboard or sign above a urinal. I would love it if potential clients would have the courage to walk out of a lawyer's office if they don't feel entirely comfortable instead of retaining that firm. I would love it if our system of justice wasn't stacked against the "little guy" on all sides.

To the lawyers who give the kind of bad advice I have mentioned in this article, contact me and let's talk. If you sincerely don't know that you are harming your clients, and the DUI defense bar in general by your behavior, let me buy you lunch, and let's talk about ways that you can continue to make a good living, but do so with dignity and skill, rather than the way you currently operate.

How to Make Tax Time Less Painful

There are a few things that you can do throughout the year that may help you get through tax time with less stress. First, organize your documents and keep them organized throughout the year. Search the internet for free websites that give you organization suggestions. Some of them even have templates to help you put your tax records in order. Consider a good software program like Microsoft Money which has a 90-day free trial.

If you itemize your deductions, and you certainly should itemize if you are self-employed, keep all your receipts in an expandable folder that can be organized by month, alphabetically, or any way that you want to organize it. If you are ever audited, you will lose the deductions you claimed that cannot be verified by a receipt. If you make cash donations, IRS has a formula that calculates how much you can deduct, but, as with any other deduction, you must have a receipt in order to claim the deduction. Be sure your receipts have the name, date, address, amount, purpose, type, value, and any other information pertinent to the validity of the deduction.

Unless you are really knowledgeable in accounting and tax law, a good CPA is well worth the money. The tax laws are constantly changing, and the average person cannot keep up with the changes let alone understand them. Remember that you should always make the best use of your resources, and that includes using your talents for those things that you do well and outsourcing those things that someone else can do better.

There is no absolutely certain way to avoid an audit, but people say that certain things increase the likelihood of an audit. For example, make sure there are no math errors in your tax return. If there are inaccurate calculations, the IRS will have to take a second, more careful look at your return. Once IRS is looking more closely at your return, there may be red flags that could lead to an audit. It is best to do the math correctly so that IRS never has to take a closer look at your return.

There are blogs and websites for almost any topic, and doing a little research will help you be better educated and less stressed. Don’t forget that your local library has many book about income taxes and tax returns. You may also want to look into Turbo-Tax, Microsoft TaxSaver, or one of the other good tax software. Even if you hire a CPA, you will save yourself time and money by being well-prepared and by understanding the process.

IRS also has telephone help lines that can be really helpful. The IRS website at www.irs.gov is also very helpful and easy to use. It is alright to contact IRS and ask questions. You are not any more or less likely to be audited if you contact IRS and ask your questions. As previously stated, you are more likely to be audited if you make errors on your tax return. These are just a few basic suggestions that can help make tax-time less stressful for you

Why and How to Avoid Bankruptcy

Why and How to Avoid Bankruptcy


Avoiding bankruptcy no longer seems to be on most debtors’ lists of priorities and the number of recorded bankruptcies is soaring. There were around 70,000 bankruptcies recorded in 2005 and about 45,000 of these were voluntary bankruptcies. This statistic clearly demonstrates the worrying fact that a large proportion of debtors see bankruptcy as a debt solution rather than as something to be avoided.

Bankruptcy trends are changing in a way that is concerning economists. In the late 1990s the UK also experienced increasing bankruptcy rates. However, 60% of these bankruptcies were as a result of companies becoming insolvent. The picture is very different today as most bankruptcies are the result of individual insolvencies. In the fourth quarter of 2005 there were 20,461 bankruptcies which resulted from individual insolvencies. This figure represents an increase of 57% against the same period in 2004.

Although many people do not seem concerned about avoiding bankruptcy they really should do so if at all possible.
Avoiding bankruptcy is important because of the penalties, disadvantages and stigmas that it carries.

Going bankrupt often means losing your home and your business and professional status. It also means that it is impossible to hold public office or form, manage or promote a company in the future.

Bankruptcy should also be avoided because it makes it very difficult to obtain credit and your employment prospects can be prejudiced.

Avoiding bankruptcy is both advisable and possible with an IVA. The government introduced IVAs in 1986 to help people to avoid bankruptcy.

An IVA is a binding agreement between a debtor and their creditors. The debtor agrees to repay their debts over a five year period via affordable monthly repayments. These monthly repayments can be as low as £200.

In return, the creditors freeze interest on the debt, agree not to contact the debtor while the IVA is in place and write off a proportion on the debt. It is not uncommon for as much as 85% of a debt to be written off with an IVA.

After five years the debtor is deemed to be debt free. There are no disadvantages or penalties associated with an IVA. Furthermore, because an IVA is a private agreement between a debtor and their creditors there is no stigma attached. As a result, an IVA is an excellent way of avoiding bankruptcy.

Structured Settlement Annuity

You may be considering a structured settlement annuity, but there are some things you should know. A structured settlement is a term that refers to a deferred payment obligation resulting from the settlement of a personal injury claim. In many cases these settlements are paid out over time. There has been much controversy in regards to people who cash in a structured settlement annuity payment award. Structured settlement annuity, is just one part of a very large industry. Some people think it is not legal to sell their structured settlement or annuity payments. There are people who sell their structured settlement or annuity payments all the time.

Most people do not realize that a structured settlement annuity provide a large income stream to insurance companies. With a structured settlement annuity , the government can give large tax breaks to insurance companies. This is a great benefit to insurance companies when the settlement is structured to provide a means for the insurance industry to get these tax advantages. The idea is by structuring the payments of an injury award over time. This helps the injured person to receive long term support and in turn, helps keep these people off of welfare. When the insurance companies help keep these people off government subsidy, these insurance companies are providing a valuable public service. This is why settlement awards can help insurance companies get these tax breaks. Insurance companies can make money from the interest they earn from a structured settlement annuity.

Structured settlement annuity payments to the injured person is tax free. This income is not reported to the government (as income) in the first place. This is why it can be a win-win situation with a structured settlement annuity. When someone needs money for their own personal reason, they can now sell their structured settlement annuity. These companies make it possible to get large cash payouts that were not available before because of the insurance companies being inflexible. Now a person can convert their structured settlement annuity payments to cash for whatever reason they want.

When considering a structured settlement annuity or selling a structured settlement annuity, you should retain an experienced attorney. It is wise to have an attorney explain all the details involved with a structured settlement annuity and the process involved in selling a structured settlement annuity for cash.

You can do a simple online search for all the services and resources to help you make the right decision with your finances and a structured settlement annuity

Structured Settlement And Reverse Mortgage - General tips

With a structured settlement and reverse mortgage, you can tap into income that can out live your financial responsibilities. They can help you have peace of mind. There are some important considerations with structured settlements and reverse mortgages. Taking some time to understand what they are can help you make the right financial decision for your life.

What Is A Structured Settlement?

A structured settlement is a deferred payment obligation resulting from the settlement of a personal injury claim. In many cases these structured settlements are paid out over time. With a structured settlement, the payments are scheduled up front. This can provide a steady source of dependable and predictable income for the rest of your life. A structured settlement annuity issuer guarantees payments in terms of the structured settlement agreement to the injured party. The payment and schedule are fixed. The income from a fixed annuity is tax free, if the income is the result of personal physical injuries or a physical illness. With a structured settlement, a fixed annuity contract is issued by a life insurance company. The assets are invested in the insurance company’s general account.

What Is A Reverse Mortgage?

The most common type of reverse mortgage is a reverse annuity mortgage that was developed by HUD. You have to be 62 years of age or older. You also have to live in the home and must have the mortgage paid off with this type of program. The government is responsible to insure your mortgage. Reverse annuity mortgages have been created to help ageing citizens to be able to tap into the equity of their paid off home. Sometimes a homeowner can qualify if there is enough equity in the home, even if it is not completely paid off. With this type of reverse mortgage, the homeowner can receive a tax free payment each month. The mortgage is paid off when the home is latter sold. In some cases, the reverse mortgage funds can be paid to a qualified person in a lump sum. A qualified homeowner can also use the option of a line of credit. Generally the amount that you qualify for will be based on your age, the equity in your home, and the amount of the interest rate the lender charges.

Watch Out For Structured Settlement And Reverse Mortgage Scams

With both a structured settlement and a reverse mortgage, you should always beware of scams. When there is large amounts of money involved, there can be unscrupulous people who may take advantage of the elderly. Be sure to do your homework and search online for the best resources and information available to you. It’s best to retain an attorney for any type of financial decision you make to explain all the options and terms in regards to structured settlements and reverse mortgages.