Saturday, April 14, 2018

Exercise, Eat Healthy and File Bankruptcy

If you find yourself deep in debt and are desperately trying to avoid bankruptcy, it might be time for a paradigm shift.

Not only does bankruptcy provide relief from debt, it provides relief from chronic stress that can lead to poor health. Constantly worrying about bills and your financial future is far more toxic than a negative line on your credit report.

It is rarely, if ever, discussed, but filing for bankruptcy could actually improve your health and prolong your life

How did I reach this conclusion?

Exercise, Eat Healthy and File Bankruptcy

For starters, I’ve represented clients in numerous bankruptcy cases and have seen firsthand the relief that starting over financially can provide. People generally don’t regret filing bankruptcy, they welcome the opportunity to begin anew, and many are able to successfully turn their lives around. Unfortunately, the reason for personal bankruptcy success stories is often lost in more technical discussions of the amount of debt that was discharged, what chapter the debtor filed under or whether tax debts were eliminated.

The real value of bankruptcy is stress relief.

Arnold Palmer famously said that golf is 90% mental. Well, the same is true of debt.

It’s never the actual red in the ledger that causes debtors to suffer, it’s the worry about supporting a family, collection phone calls, lawsuits, foreclosure and the myriad of other mental beatings the seriously indebted are forced to endure. Whether it’s fear of having a credit card rejected at the grocery store or concern over a pending wage garnishment, consumers who find themselves in debt are constantly reminded of their predicament. They can’t escape mentally. The debt follows them wherever they go, becoming their constant companion, causing incredible stress that breaks up marriages and ruins friendships.

Make no mistake, this debt stress can make you sick.

According to the Clinic, the following conditions are caused in whole or in part by stress:

  • Heart disease
  • Sleep problems
  • Digestive problems, such as irritable bowel syndrome
  • Depression
  • Obesity
  • Memory impairment
  • Worsening of skin conditions, such as eczema

Heart disease is still the number one cause of death in America today. Over time, digestive disorders, such as irritable bowel syndrome, can lead to cancer and other more serious conditions. Depression robs its victims of their desire to use their God given talents, taking the very meaning out of one’s life. You get the idea, the implications of stress caused by debt reach well beyond your checking account.

It’s not just about debt, it’s about your health.

Consider your daily thought patterns. If you’re deep in debt, they will be consumed by plans to pay back creditors, stave off lawsuits, keep your children from finding out how bad things have gotten, keeping up appearances with neighbors, and on and on the nightmare goes. Although the mental aspect of health doesn’t get as much play as more “scientific and provable” diagnoses, the toxicity created by debt stress is very real.

How can you properly focus on a child’s sporting event, or a project at work when you are consumed by stressful thoughts about debt?

How can you and your spouse enjoy and support each other when your interactions are constantly blighted by fear and uncertainty?

Bankruptcy is not anyone’s first choice, and it is certainly not a process to be entered into lightly, however, it does provide an opportunity to start over spiritually as well as financially.

For some, the benefits of that opportunity do far more than merely eliminating debt.

Free Consultation with a Utah Bankruptcy Attorney

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Friday, April 13, 2018

Why Draining Your Retirement To Save a Doomed House from Foreclosure Before Filing Bankruptcy is a Mistake

Should I use retirement to pay a mortgage?

Twice in the last two days I have had the same discussion with two prospective clients. Each client owned a house that at the height of the market was worth over two million dollars. In each case, the client had encumbered the house with a loan for about a million dollars a few years back. Each client had suffered significant financial set backs related to the current economic recession. Both clients had been paying mortgage payments close to $10,000.00 per month from their retirement accounts for the past year, and both clients were now at the end of their rope, with their retirement accounts dwindled to a mere pittance.

Why Draining Your Retirement To Save a Doomed House from Foreclosure Before Filing Bankruptcy is a Mistake

Monday morning quarter backing on the eve of filing bankruptcy does not bring back a depleted 401K or IRA. But there is a lesson for others in these two cases. Before tapping out your 401K or IRA to continue paying a mortgage on a house that is doomed to end up in foreclosure, know your bankruptcy options.

Retirement accounts are often exempt in bankruptcy

Nearly all retirement accounts that are governed by the Employee Retirement Income Security Act (ERISA, as it is called), including pensions and 401Ks, are not assets of a bankruptcy estate because they almost all universally contain an anti-alienation clause that protects them from the reach of creditors. Due to recent amendments to Section 522(n) of the Bankruptcy Code, Individual Retirement Accounts (IRAs), and other similar retirement savings vehicles, while assets of the estate, enjoy special protection capped at $1 million.

What does all this mean? It means in most cases, all the money drained from retirement accounts to keep a doomed mortgage out of foreclosure for an extra year, could have survived a bankruptcy. Retirement accounts exist to help you survive in your twilight years. It does you no good to waste these assets to delay an otherwise inevitable foreclosure. If you find yourself in this situation, before draining your 401K or IRA, talk with a bankruptcy lawyer with experience in foreclosure defense about your bankruptcy options and foreclosure defense options.

How Can I Repair My Credit?

Whether you filed Bankruptcy or have faced foreclosure, repossession or a delinquency on a loan, it is a fact of life that your credit score can fluctuate. Access to credit is important when applying for a car or home loan or when starting a new business, the lower your credit score, the higher your interest rate will likely be.

Improving credit after bankruptcy or foreclosure

FICO scores range from 300 to 850; the median score is 723. To get the best rates, you’ll usually have to have a score of at least low- to mid-700s, so how can you repair your credit score after it has been damaged?

Credit Repair Steps to take

Unfortunately, it is far easier to bring your credit score down than it is to make improve it. Nevertheless there are steps you can take.

Step #1: visit annualcreditreport.com

Start by visiting www.AnnualCreditReport.com, a website set up under federal law to give consumers access to their credit reports. Be on the lookout for impostors, AnnualCreditReport.com is free, there will be no need to supply your credit card or make any payment. There are three different consumer credit agencies (Experian, Equifax and TransUnion) that compile information that factors into your credit score. Not surprisingly, the three agencies don’t always agree. It is important that you go through each report and identify any errors. Did you recently pay off a debt that is listed as delinquent?

Step #2: Write to the credit agencies

It is important to write to the credit reporting agencies both to correct errors as well as to explain any delinquencies. It is perfectly reasonable to write a letter to the credit reporting agencies explaining why you have been late on a mortgage or were forced to file for bankruptcy. Lenders view your credit score in its proper context. Perhaps you have been a victim of mortgage fraud and were forced to file bankruptcy to protect your assets from an aggressive lender. Maybe the economic downturn has caused a salary decrease that made it hard to stay current on car payments. Whatever the Cause of your credit taking a hit, it is crucial that you weigh in on the problem and voice your perspective. It can help.

Step #3: pay your bills on time

I advise my clients who have filed for bankruptcy to be meticulous in paying every bill on time after filing. The same principle applies to anyone trying to repair their credit as payment history is one of the biggest factors in determining your credit score. It may be a good idea to open a single credit card, use it only for groceries and then pay the balance in full each month.

Step #4: debt to income ratio

Filing bankruptcy can actually improve your credit score. Why? Because another factor lenders use in their underwriting process is how much of a debt load is the potential borrower carrying? Are they swamped in debt? If the answer is yes, they will be less likely to be able to service more. When large chunks of credit card debt are discharged in bankruptcy it can often have a positive impact on credit just a few months after filing.

Step #5: be patient

Your credit history factors into your score as well. The longer you’ve been borrowing and paying on time the better. In some ways this is the lender’s way of developing a friendship with you. When you meet someone for the first time, you might like them but can only develop a friendship or romance over time. If you have been paying your bills for a long time, lenders are more likely to court you.

Be of good cheer, with a little patience and responsible use of credit, your score will improve.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Thursday, April 12, 2018

Does the Utah Anti-Deficiency Law Protect Me?

When most families purchase a home, they don’t envision ending up facing a foreclosure sale, but in states like Utah where the housing market has been particularly hard hit, foreclosure is an all-too-common event. In cases where a home has plummeted in value, borrowers have two main concerns:

  1. I’m afraid to lose my home.
  2. I’m afraid my lender will sue me for deficiency judgment after the foreclosure sale and my personal property will be attached.

Does Utah law allow for a bank to sue a borrower after their property has been sold at foreclosure? When it comes to residential real estate, generally speaking, the answer is no, although the facts of each case will determine the outcome.

Below are some general principles to keep in mind when trying to determine whether you will be protected by Utah’s anti-deficiency statute.

Does the Utah Anti-Deficiency Law Protect Me

You Must be Underwater in Order for a Deficiency to Arise in the First Place

First and foremost, a lender cannot sue a borrower for a deficiency judgment where the foreclosure sale price is high enough to satisfy the outstanding mortgage balance.

By definition, a deficiency judgment arises when a home is underwater, the bank forecloses and the sale price is insufficient to pay back the mortgage balance. If your home sells at foreclosure for more than what you owe, there is no deficiency and can therefore be no deficiency judgment.

As a practical matter, the scenario where a foreclosure sale completely satisfies the mortgage debt simply won’t apply to most Utah homeowners who are underwater on their property thanks to the national housing downturn. Assuming your home is underwater and you’re facing foreclosure in Utah, we’ll move on to the next important set of facts, which deal with the type of mortgage you have and the size of your property.

Utah Anti-Deficiency Statute: The Basics

Utah’s anti-deficiency statute is codified in the Utah law prevents a lender from seeking a deficiency judgment after foreclosure when the mortgage loan was made to help purchase the home, the property is less than 2.5 acres in size and less than two “dwelling units” in size.

Review this below:

If a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.

What does this legalese mean? Well, a mortgage is given to “secure the balance of the purchase price” of a home when you take out a mortgage to finance your property. If you’re like most of us and couldn’t afford to buy your home in cash, you relied on mortgage financing to buy your house. If you did, the Utah legislature believes that your lender shouldn’t be permitted to sue you for a deficiency and come after your personal assets after they’ve foreclosed on you. As long as your property is 2.5 acres or less in size and you used mortgage financing to purchase the property, you’re protected from a deficiency judgment.

Similarly, Utah Code prohibits the bank from seeking deficiency judgment where they have foreclosed by power of sale. We’ve included the language of the statute below:

If trust property of two and one-half acres or less which is limited to and utilized for either a single one-family or a single two-family dwelling is sold pursuant to the trustee’s power of sale, no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses.

This provision adds an additional layer to the Utah anti-deficiency laws. Foreclosure by power of sale is a quick, inexpensive way for lenders to take back property; however, because there is no judicial oversight, the process is more highly scrutinized by the court. In this regard, Utah law says that a bank can foreclose by power of sale, but if they do they will not be permitted to seek a deficiency judgment.

How do you know whether your home is subject to power-of-sale foreclosure? Although Utah allows both judicial foreclosure and power of sale foreclosure, power of sale is the most common. Look at your mortgage documents: If you have a Deed of Trust, your lender is entitled to foreclose by power of sale. It should be noted that the 2.5-acre requirement applies in the power of sale legislation just as it does in other areas.

HELOC Mortgages, Investment Property Not Protected

It is important to keep in mind that while Utah’s anti-deficiency laws are consumer-friendly, they are not uniform in application. There are limits to the protections from deficiency judgments not only to purchase money mortgages and properties that are smaller than 2.5 acres in size, but also requires that the number of dwelling units not exceed two (2). This limitation was put in place to protect homeowners from deficiency judgments while classifying real estate investors separately from homeowners.

For example, if you own a multifamily apartment building on property that is less than 2.5 acres in size and lose the building to foreclosure, you still will be subject to a deficiency lawsuit under Utah law. Similarly, if you tapped into home equity by taking out a second mortgage on your property, that lender can pursue you for deficiency judgment as well because the money was not borrowed to finance the purchase of your home.

Free Initial Consultation with a Utah Lawyer

It’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.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Wednesday, April 11, 2018

How Adultery and Infidelity Relates to Divorce in Utah

As a divorce lawyer, I’m regularly asked about how adultery affects divorce. In Utah, adultery (infidelity) is one of the statutory grounds for divorce.  Incompatibility, gross neglect of duty, extreme cruelty, and habitual drunkenness are also grounds for divorce in Utah.  None of these grounds are more legally significant than any of the others – they will all suffice to allow the court to find that there are grounds to terminate the marriage.

In Utah, as in most states, adultery is not legally relevant to custody matters.  In the eyes of the law, a person can be a bad spouse and that has nothing to do with whether they are a bad parent.

How Adultery and Infidelity Relates to Divorce in Utah

In Utah, adultery has no legal relevance to the division of property.  A court will not give one spouse more property than the other in order to punish the spouse who has been unfaithful.  In Utah the primary purpose of the divorce court is to divide things and end things.

In Utah, one spouse’s commission of adultery does not automatically mean that the other spouse will be awarded the marital home in the divorce.  If the one spouse asks the other to leave as a result of adultery, the faithful spouse will not be any more entitled to have the house than he or she would have been if adultery were not an issue.

In Utah, just because the marriage is ending after adultery, that does not mean a court will fail to consider shared parenting.

Once the marriage is over, the court will rarely enter an order requiring separation between the “object of affection” and the children.  Unless a court finds a parent unfit, that parent will have the right to make their own child care arrangements.

When one spouse is leaving a marriage because of adultery, the other spouse may unnecessarily prolong divorce litigation in order to maintain a connection.  While adultery is not legally relevant, it is not unusual for divorce litigation to confuse the feelings surrounding infidelity with the legal issues surrounding the end of the marriage.

If one of the parties alienates the children by disclosing the other parent’s infidelity, or worse, by stating the infidelity as the reason for the end of the marriage, a court may find that the disclosing parent is unable to put the needs of the children before their own need for vindication.  A pattern of such behavior, with no regard to the strain it causes on the children, could result in custody of the children being awarded to the party who committed adultery, rather than the party who chose to discuss the adultery with the children.

In Utah, the court does not care if you were a good spouse to the unfaithful party, and you did not cause the end of the marriage.  The court only cares that the marriage is ending and things have to be ended and divided.  You will not be awarded any more spousal support (alimony) than you would receive otherwise, and the court is not going to order the leaving party to “find a way” to let you maintain the exact same lifestyle that you lived before the end of the marriage.  The court is going to expect you to live as if the income available to the parties is now being divided among two households.

Be honest with your lawyer about infidelity – it is never a good thing for your lawyer to find out about any relevant information by surprise.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Tuesday, April 10, 2018

Lessons Learned from 50 Cent’s Bankruptcy

A federal judge recently discharged the bankruptcy case of rapper 50 Cent after he paid more than $22 million of his debt.

50 Cent filed for Chapter 11 reorganization in 2015, with debts of $36 million and assets of less than $20 million. The “Get Rich or Die Tryin’” artist, whose real name is Curtis Jackson, paid off a five-year plan early with $8.7 million of his own money and $13.65 million he received in a settlement of a legal malpractice lawsuit.

Lessons Learned from 50 Cent's Bankruptcy

Jackson’s bankruptcy case started when a woman won a $7 million settlement against him in 2015 for posting a sex tape. Soon after, he filed for bankruptcy to help with that debt, as well as his failed business ventures.

But late last year, Jackson nearly was in hot water when he posed with stacks of cash on Instagram. A judge questioned if he was really declaring all his assets, but Jackson said he was merely living up to his perceived image — a famous rapper with loads of money around him — and that the cash was a prop.

In his response to the judge, 50 Cent said: “Just because I am photographed in or next to a certain vehicle, wearing an article of clothing, holding a product, sitting next to what appears to be large sums of money or modeling expensive pieces of jewelry does not mean that I own everything in those photos.”

Here are four things everyday consumers can learn from 50 Cent’s high-profile bankruptcy case.

Chapter 11 Isn’t Just for Companies — People Can File, Too

Let’s face it — none of us are like 50 Cent. We’re not celebrities and we don’t have his life, grandioses or not. But what lessons can we take away from his very public proceedings?

For most of us, it’s to know your bankruptcy and the rules, inside out.

Chapter 11 of the Bankruptcy Code usually involves a corporation or partnership, reorganizing to keep the business alive and pay creditors over time. But people in businesses or individuals also can seek relief in chapter 11.

For individuals, chapter 11 has some similarities to Chapter 13 bankruptcy, which is a reorganization of a consumer’s finances to pay creditors over 3-5 years. With the help of a bankruptcy attorney, chapter 13 filers work out a payment plan that allocates their disposable income into monthly payments.

Nearly anyone can file for chapter 11, whereas many small businesses are ineligible for chapter 13. Chapter 13 also is only available to debtors with regular income and subject to debt limitations — which, as of April 2016, were no more than $394,725 in unsecured debt (debt not backed by collateral, such as credit card debt) and $1,184,200 in secured debt (like mortgages and car loans).

Your Bankruptcy Case Can Last a Few Years, or a Few Months

A typical timeframe for a bankruptcy discharge varies depending on which chapter you file. For 50 Cent, he filed for bankruptcy in 2015 and had five years to pay off his debt, but paid up earlier this year.

Under Chapter 7, the debtor generally doesn’t pay back his or her creditors. Most people prefer to file under chapter 7, with common debts eliminated like medical bills or personal loans. Chapter 7 also is quicker than other bankruptcy proceedings, and typically lasts 4-5 months.

Chapter 13 filers who earn income that’s less than the state average for their family size enter a 3-year payment plan. Those who exceed the state average are bumped up to five years. The payment plan allocates consumers’ disposable income to make monthly, consolidated payments to creditors.

Chapter 11 can be a little more complex and expensive than chapter 13, and fewer types of debt are dischargeable. Special provisions do streamline these cases for small business debtors, though. Furthermore, Chapter 11 also does not require debtors to turn over their disposable income to a trustee, but the total value of his or her disposable income over a five-year period.

You Need to Be Completely Honest with the Court

If you try to game the system, as it initially appeared 50 Cent had when he posed with stacks of fake cash, you could be in big trouble. Luckily, he was in the clear.

However, people enter bankruptcy court to receive a discharge, and the biggest way to screw that up is to be dishonest. Other than having your bankruptcy case dismissed, you could be fined big time or end up in jail.

Section 727 of the Bankruptcy Code lists the various grounds for objecting to a bankruptcy discharge, including:

—lying under oath;

—destroying records or failing to keep adequate records;

—no good explanation for a loss of assets; and

—concealing or transferring property within one year before filing in an attempt to defraud a creditor.

You must tell the court about everything you own, plain and simple. If a bankruptcy trustee expects you may have left out assets, they’ll schedule a 2004 exam and ask questions under oath.

It probably goes without saying, but social media can ruin your chances at a successful bankruptcy if a bankruptcy trustee looks through your accounts and finds something unsavory. That includes posing on Facebook with assets, like a car that you own but haven’t told the court about.

Finally, if it’s found you have concealed or intentionally transferred property before your bankruptcy case, you can be sued. You can also lose all non-exempt assets without any debt relief.

You Can Recover After Bankruptcy

Say you’ve made it safely through your bankruptcy proceedings. You breathe a sigh of relief. (If you’re 50 Cent, you posted on social media immediately afterward.)

What next?

Outside of the impact of bankruptcy felt during proceedings, bankruptcy and debt solutions can impact your credit score, but not as largely as you might think. So don’t put off filing for bankruptcy. The sooner you get help with your debt, the better your credit score will be in the long run — which will help you be more likely to get a future loan for a house, car, or rebuild credit with a credit card.

Make sure to review your credit reports, as all credit card accounts should have zero balances after a bankruptcy discharge. When opening a new credit card account, put small balances on it and pay them off immediately. Also, make sure to live within your means.

And beware: those annoying collectors may still call. However, collectors who ignore the discharge order are violating federal law, under section 524 of Title 11 of the United States Code. A discharge effectively operates as an injunction against continuing to collect or recover from the debt.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, April 9, 2018

Should Filing Bankruptcy Be The Last Resort?

Although we’ve mentioned it time and again on the forum, it bears repeating: filing for bankruptcy is not a decision to be entered into lightly. In fact, it is important to get good information and carefully weigh your options.

Should Filing Bankruptcy Be The Last Resort

Is Bankruptcy Always a Last Resort?

Having said that, delaying too long can cause unnecessary financial strain and serve to compound existing problems. Is bankruptcy always the last option? Some of the common things consumers do before they consider bankruptcy include: • Cash out their retirement funds to pay debt • Pay a debt settlement company to settle their debts • Settle their debt by dealing directly with the creditor or its attorney In some cases, these bankruptcy alternatives can be just what the doctor ordered, however in others they can put you in deeper trouble without meaningful debt relief.

Depleting Your Retirement To Pay Debt

Selling assets to avoid bankruptcy is often a bad idea and a retirement account is no exception. As Bankruptcy Lawyers in Utah like to point out to everyone who meets with us about bankruptcy…

The fact is that the lingering recession is causing a lot of people to file for bankruptcy who never thought they would. While the recession is is undoubtedly a sad turn of events, I am also seeing an even more disturbing trend. Namely, a lot of them are selling all of their property in an effort to stay current with their bills and avoid filing for bankruptcy. By the time they come to me, they have already gone through everything they own. While these efforts are always well-intentioned, they are catastrophic for their finances. In a lot of cases, people are selling assets that they would otherwise be able to keep if they would have thought about filing for bankruptcy a little sooner.

Perhaps nowhere is this point better illustrated than in the context of a retirement account. ERISA qualified 401(k) accounts and many IRAs are completely exempt in bankruptcy. This means you can file bankruptcy, shed your debts and keep your retirement. As Jacob describes, it is always difficult to see someone liquidate their retirement only to be forced into bankruptcy a few months later. For more information, see: Retirement Savings and Bankruptcy.

Debt Settlement vs. Bankruptcy

Debt settlement companies promise the world but rarely deliver. They often charge fees that far exceed the cost of bankruptcy and actually require their clients to go deep in default in order to settle their debts. Here is how the process works: you, the debtor, stop paying on your credit card accounts and other bills and instead save some of the money. When you’re deep enough in default, the creditor has written off the debt and may agree to accept a reduced payment in satisfaction of the balance. You fork over the money you’ve saved plus a hefty fee and you’re out of debt. That’s how it works sometimes, but definitely not all the time. While you’re waiting on the debt settlement company, you’re creditors are definitely not waiting on you. They’re reporting delinquencies on your credit. calling and sometimes actually suing to collect. By the time you’ve reached your debt settlement goals, your wages may already be in the process of being garnished or a judgment might have been entered against you. Sure, filing for bankruptcy can help with most of these problems, but why wait?

Negotiating With Creditors instead of Bankruptcy

While the debt settlement waiting game is expensive and often ineffective, sometimes negotiating directly with creditors can be a nice alternative to filing for bankruptcy if you already have the cash to make a deal. If you stand to have more assets liquidated in bankruptcy than you’d save in debt, dealing with the creditor through an attorney can often result in signifcant savings and a permanent solution to the problem. In these cases, bankruptcy may very well be your best option. For example, let’s say you owe $50,000 on a delinquent business loan but have $150,000 in cash and stocks. Filing for bankruptcy would result in the trustee liquidating your stock portfolio to pay your creditors, in fact, they’d likely get paid in full. In these instances, it makes much more sense to negotiate a reduced payment directly with the creditor.

Fresh Start For You

Although the costs are not insignificant, the purpose of bankruptcy is to provide those struggling with debt a fresh start. Sometimes, the bankruptcy card is only to be played as a last resort, however, in some cases it offers the most thorough relief on the best timeline. Each situation is different, if you’re contemplating bankruptcy, be sure to meet with an experienced attorney.

Free Consultation with a Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Sunday, April 8, 2018

Beneficiary of a Will

It is important to select and name the beneficiary of a Will with care. The beneficiaries will receive the assets or benefits that have been designated in the document. There may be a single beneficiary or even multiple beneficiaries. An estate planning lawyer can advise you on how to select them.

Beneficiary of a Will

You need to be careful about how you name a beneficiary of a Will. While identifying beneficiaries by name and relationship is what you want to do, problems can still arise. For example, suppose you name your children as beneficiaries. Should one of your children predecease you, you will need to specify what happens to that person’s share to avoid confusion. If you want that child’s share to go to his or her heirs, then you must make that intent clear in your beneficiary designation. This can be accomplished by clearly setting forth an alternate beneficiary designation or by including a per stirpes clause.

Another consideration when naming a Will beneficiary is the status of the person you want to benefit.  For instance, if your child is not over the age of 18, the child does not have the legal capacity to receive a bequest in his or her own right.  In these situations, a testator should consider having a child’s share placed into a trust the terms of which are set out in the Will.  This type of trust is a testamentary trust.  In a typical situation the Trust provisions may provide that the property is given to a named trustee to hold in trust for the child until the child reaches say age 21 at which time the child receives one-half of the fund.  The trust can then provide that the balance of the trust is to be paid to child when he reaches age 24.  Also, the trustee can be given broad powers to distribute the trust principal and income to the children throughout the term of the trust.

Joint Bank Account

The probate process is complex, and some people will take steps to avoid it. Additionally, probate proceedings are also a matter of public record. To avoid probate, one of the things some people do is name another person as joint owner of property such as a joint bank account or real estate. When there is a joint bank account at death, the surviving owner automatically becomes the sole owner of the entire bank account or other joint asset. A Utah probate lawyer can explain how this process unfolds.

Owning assets jointly with another can be a simple way to distribute an estate. However, problems can arise where the joint ownership was created only for the convenience of the asset owner during their lifetime and did not actually reflect their desires as to the distribution of their property upon death. In fact, the distribution of the entire asset to the surviving joint owner upon death may directly conflict with the decedent’s estate plan as set forth in a Will. Unfortunately, the automatic nature of the transfer of joint assets generally cannot be circumvented by the more general language of the decedent’s Will.

This situation is a very common cause of Estate Litigation in the Surrogate’s Court, with which an estate attorney is familiar.  A typical case may involve a child who lives with or near a parent. Although the parent has created a Last Will leaving all of his assets equally to all children, unknowingly, the parent puts the one child on the bank account as a joint owner so that the child can help the parent with his daily bills and finances. When the parent dies, the entire joint account automatically becomes the property of the one child and the provisions in the Will do not apply.

Utah attorneys, as well as those throughout the state, are aware that planning an estate requires understanding the nature and ownership of all of the assets involved.  At their own peril, many people do not pay close enough attention to the names they put on their assets and then probate litigation occurs where family members allege undue influence and improper conduct on the part of individuals who benefit from these oversights. An estate lawyer can review your situation to determine what is best for you.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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