This blog is about a crisis that is occuring in Chicago and Cook County and across the country. Small business owners and individuals are being sued at record numbers. Whether it is a mortgage foreclosure, failure to pay your credit card or bank loan, or whether a business owes you money due to their financial problems. In my experience, one lawsuit threatens the viability of many families. Lawsuits and financial distress cause headaches and stress. I know because I represent many people and business owners that have been sued. It is no fun trust me. Bankruptcy often times is not a simple answer because if you are over the age of 50, most people do not want to start over. More importantly, there are a lot of people and business owners that have considerable equity. The fear of losing all of your real estate or assets is a frightening thing. Especially considering many of you are people and business owners that have experienced good economic times. The recession of the last several years have threatened the hope and American dream for you and many people.
My simple advice to people is make sure your assets are protected to prevent a lawsuit from destroying you and your family's life. Money means nothing, but unfortunately, financial struggles mean a lack of hope and faith that tomorrow will be better than today. Hope and faith are serious issues because faith is a belief in the unknown that things will be better. If you are like me, these difficult times brought me closer to God. Fortunately, for me, I paid off almost all of my debt. However, I understand many of you are facing the trials of the IRS and collection attorneys and collection agencies. This is not a fun process and one that I am confident that you would do differently if you had a choice. For many of you, you are considering whether a strategic mortgage foreclosure makes sense although you firmly believe in paying your debts. I understand but realistically, some people should consider a strategic foreclosure. But, you should be wise and develop an appropriate asset protection plan prior to this eventuality. Otherwise, your deficiency judgment may result in you losing your other real estate properties and your financial security. You may face a levy of your bank accounts, which is no fun. The appropriate asset protection and exemption planning advice can help you prevent financial ruin. This morning, I am going to file a Motion for a small business owner that had $600 frozen by a creditor. This is a small amount of money, but I am sure to this Defendant, this is a huge sum of money. Bank freezes always occur at the worst moment. Be wise and get an asset protection plan to prevent life as I have just described. Things can be different.
Sean Robertson is an asset protection and lawsuit liability planning attorney concentrating in asset protection, exemption planning, and lawsuit planning for small business owners and individuals. Sean Robertson may be reached at (312) 498-6080.
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Friday, March 11, 2011
Wednesday, March 9, 2011
How to Protect Your Homestead Exemption From Liens and Judgments?
There are two primary ways to protect your homestead exemption in Cook County, Illinois against liens and judgments. The first way is to transfer your house or property into a Private Land Trust. A Private Land Trust is a strategy that transfers your property out of you and your spouse's personal name. For married couples, the best method to protect against liens, judgments, and foreclosures are tenancy by entirety. Tenancy by entirety is a way of owning your personal residence in Illinois for married couples that protects one spouse from a judgment from the other spouse. Essentially, a creditor cannot foreclose your house if you and your spouse have your house as tenants by entirety. Combine this with a Private Land Trust which protects homestead exemptions against liens and you have a powerful asset protection strategy. It is not perfect and you should consult with an asset protection attorney.
The second method is to place the home or real estate into an Irrevocable Trust. An irrevocable trust places the property outside of your personal name. A creditor cannot place a lien or judgment on your house if you do not own the house. An irrevocable trust is like a fictional person and typically, your trustee is a close family friend or relative. Please be aware of the fraudulent transfer statute in Illinois. Generally, one cannot intentionally defraud a creditor of their right to collect on a judgment. In the right instances, an irrevocable trust is a powerful asset protection tool that prevents liens and judgments from attaching in Illinois.
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The second method is to place the home or real estate into an Irrevocable Trust. An irrevocable trust places the property outside of your personal name. A creditor cannot place a lien or judgment on your house if you do not own the house. An irrevocable trust is like a fictional person and typically, your trustee is a close family friend or relative. Please be aware of the fraudulent transfer statute in Illinois. Generally, one cannot intentionally defraud a creditor of their right to collect on a judgment. In the right instances, an irrevocable trust is a powerful asset protection tool that prevents liens and judgments from attaching in Illinois.
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Will a Creditor Foreclose on Your Home?
Today, I spoke with a client that has a common problem among many Defendants that have received a judgment at the Circuit Court of Cook County at the Daley Center. This client is 66 years old, has significant equity in their home, and has a judgment, which they cannot afford to pay. For example, let's assume that we have a Defendant that is sixty years old, has $50,000 left on their mortgage, and their house is worth $225,000. The Defendant has a judgment of $100,000.
In the State of Illinois, a Defendant may claim a $15,000 homestead exemption per person. Thus, a married Defendant has the right to claim $30,000 worth of homestead exemption. A homestead exemption is only applicable to your primary residence in Cook County. With the above example, this is the Defendant's analysis. The creditor must first pay the $50,000 left on the Client's mortgage, Defendant gets to keep $30,000 and Defendnat has available equity of $145,000. In the above example, a Defendant has a significant risk that their house will be foreclosed to satisfy the $100,000 judgment at the Daley Center.
However, in many cases, the Plaintiff has the ability to place a lien against the home and even foreclose the home if payment of the judgment is not paid. In reality, a Plaintiff threatens to foreclose a house because it is a powerful scare tactic. Often times, a Defendant can settle for less than the judgment amount because a Plaintiff does not want to pay the attorney's fees, costs and other costs associating with foreclosure of a home. Plus, more importantly, foreclosures in Cook County can be dragged on for a significant period of time. All these factors should be played when negotiating a settlement with a Plaintiff.
Remember that a Defendant at a Citation to Discover Asset's Proceedings should obtain counsel if the judgment is sufficient to warrant an attorney. In many cases, an Defendant's attorney will significantly save a Defendant money and more importantly, give the Defendant peace of mind to sleep at night.
Sean Robertson is an experienced asset protection and post-judgment attorney at the Daley Center. Sean Robertson may be reached at (312) 498-6080.
In the State of Illinois, a Defendant may claim a $15,000 homestead exemption per person. Thus, a married Defendant has the right to claim $30,000 worth of homestead exemption. A homestead exemption is only applicable to your primary residence in Cook County. With the above example, this is the Defendant's analysis. The creditor must first pay the $50,000 left on the Client's mortgage, Defendant gets to keep $30,000 and Defendnat has available equity of $145,000. In the above example, a Defendant has a significant risk that their house will be foreclosed to satisfy the $100,000 judgment at the Daley Center.
However, in many cases, the Plaintiff has the ability to place a lien against the home and even foreclose the home if payment of the judgment is not paid. In reality, a Plaintiff threatens to foreclose a house because it is a powerful scare tactic. Often times, a Defendant can settle for less than the judgment amount because a Plaintiff does not want to pay the attorney's fees, costs and other costs associating with foreclosure of a home. Plus, more importantly, foreclosures in Cook County can be dragged on for a significant period of time. All these factors should be played when negotiating a settlement with a Plaintiff.
Remember that a Defendant at a Citation to Discover Asset's Proceedings should obtain counsel if the judgment is sufficient to warrant an attorney. In many cases, an Defendant's attorney will significantly save a Defendant money and more importantly, give the Defendant peace of mind to sleep at night.
Sean Robertson is an experienced asset protection and post-judgment attorney at the Daley Center. Sean Robertson may be reached at (312) 498-6080.
Critical Daley Center Post-Judgment Proceedings: Citation to Discover Assets
The most common mistake I keep on hearing about are Defendants getting their bank accounts frozen and their money taking after a judgment takes place. A judgment is essentially a ruling by the Circuit Court of Cook County at the Richard J. Daley Center that a Plaintiff is entitled to a certain amount of money as a measurement of damages.
I got two phone calls today with a similar story. This story is Plaintiffs catching a Defendant by surprise within 30 to 60 days after a judgment. After a judgment is recorded, a Plaintiff files paperwork called a Citation to Discover Assets. A Citation to Discover Assets are a deposition under oath with the purpose of finding your money and assets to collect on money that is owed to you. A common tactic is fear because Defendants are likely to pay a Plaintiff if they fear something such as a lien against their home or losing their home. The problem is most Defendant's attorneys do not properly explain the Post-Judgment proceedings because most Defendant attorneys do not practice a lot in the Post-Judgment proceedings. Defendants must expect that a Plaintiff will issue a Wage Garnishment Order to their bank and freeze their accounts. This will cause NSF fees, bounced checks, and Plaintiff to get money that Defendant is legally entitled to. Most Defendants fail to anticipate this and know how to properly prepare for this. In Illinois, a Defendant has certain exemptions under the law. The most common exemption is $4,000 personal property wildcard exemption. This wildcard exemption is to allow a Defendant to protect their bank account or cars (i.e. personal property) from a Plaintiff. However, most Defendants do not know how to properly file the paperwork claiming their wildcard exemption. This means Defendants lose their money and are caught off guard during already difficult and trying financial circumstances. An experienced attorney that anticipates a Plaintiff's attorneys' responses prior to them, can inform and educate a Client on what to expect. A prepared and educated a Defendant is a Defendant that is more financially secure.
Sean Robertson is an attorney that assists Defendants in Cook County at the Circuit Court of Cook County with post-judgment and post-trial litigation. Sean Robertson can be reached at (312) 498-6080 or Sean@RobertsonLawGroup.com.
I got two phone calls today with a similar story. This story is Plaintiffs catching a Defendant by surprise within 30 to 60 days after a judgment. After a judgment is recorded, a Plaintiff files paperwork called a Citation to Discover Assets. A Citation to Discover Assets are a deposition under oath with the purpose of finding your money and assets to collect on money that is owed to you. A common tactic is fear because Defendants are likely to pay a Plaintiff if they fear something such as a lien against their home or losing their home. The problem is most Defendant's attorneys do not properly explain the Post-Judgment proceedings because most Defendant attorneys do not practice a lot in the Post-Judgment proceedings. Defendants must expect that a Plaintiff will issue a Wage Garnishment Order to their bank and freeze their accounts. This will cause NSF fees, bounced checks, and Plaintiff to get money that Defendant is legally entitled to. Most Defendants fail to anticipate this and know how to properly prepare for this. In Illinois, a Defendant has certain exemptions under the law. The most common exemption is $4,000 personal property wildcard exemption. This wildcard exemption is to allow a Defendant to protect their bank account or cars (i.e. personal property) from a Plaintiff. However, most Defendants do not know how to properly file the paperwork claiming their wildcard exemption. This means Defendants lose their money and are caught off guard during already difficult and trying financial circumstances. An experienced attorney that anticipates a Plaintiff's attorneys' responses prior to them, can inform and educate a Client on what to expect. A prepared and educated a Defendant is a Defendant that is more financially secure.
Sean Robertson is an attorney that assists Defendants in Cook County at the Circuit Court of Cook County with post-judgment and post-trial litigation. Sean Robertson can be reached at (312) 498-6080 or Sean@RobertsonLawGroup.com.
Tuesday, March 8, 2011
What happens when you get a Judgment in Cook County, Illinois?
A judgment is a lawsuit that was successful. A judgment enables a Plaintiff to perform certain actions against you or your business in order to collect the money that is owed to them. In Cook County, Illinois, a judgment is enforced in Room 1401 of the Richard J. Daley Center. The purpose of Room 1401 is to coordinate Citations to Discover Asset's proceedings. Essentially, a Plaintiff must file appropriate paperwork and give notice to the Defendant to show up. A Defendant is sworn in under oath and is asked a series of questions. These questions are essentially designed to find out whether you have any money that the Plaintiff can take. These assets include bank accounts, business interests, real estate, cars, personal property, accounts receivable and other assets.
In Illinois, a Defendant has a $4,000 personal property exemption, which means that a Defendant can protect up to $4,000 of personal property without the Plaintiff seizing this money/assets. For example, a common asset that is frozen is a banking account. If you own a checking account with $5,000, you have a legal right to exempt $4,000 in personal funds. Anything above $4,000 may legally be seized by the Plaintiff. Practically speaking, a Plaintiff will issue a Garnishment Citation to your Bank and your bank will set aside all of your monies in your bank account. The Plaintiff is entitled to every penny unless you file appropriate paperwork at the Circuit Court of Cook County in a timely manner.
After a judgment occurs, typically thirty days will go by and the Plaintiff will begin collecting against your bank accounts. As a rule of thumb, a Defendant should be aware that the Plaintiff will try to surprise them and freeze their bank account. Thus, a Defendant should be careful about writing checks because the checks will bounce and NSFs and bank fees will be substantial. The good news is with an attorney, you can get a court order to force the Bank to waive the Bank fees if your funds are protected by federal and/or state law.
Moreover, when a judgment occurs, a lien automatically is placed on any real estate that you own in your personal name. This is one reason it is important to have a Private Land Trust set up. A Private Land Trust prevents a judgment from attaching to your real estate. However, you cannot fraudulently transfer your house or investment property into a Private Land Trust to prevent a judgment being attached to your property when proceedings are occuring. Preventing a lien against your property interest is important because you must pay off all liens prior to selling your real estate. Therefore, a lien may prevent you from ever being able to sell your real estate without paying off a lien. At first glance, many people desire to pay off their bills. However, there are times when it is simply impossible to pay your judgment off. I had one particular client that desired to settle his judgment until he realized that the interest alone on his case was over $5,000 per month. It simply was impossible and impractical for him and his wife to pay this judgment. Fortunately for them, they had hired my law firm to protect their assets. Our asset protection plan worked as planned.
Sean Robertson is an Asset Protection Attorney for Physicians, Dentists, and Business Owners. If you need an asset protection attorney, Sean Robertson is happy to assist you. Sean Robertson may be reached at (312) 498-6080.
In Illinois, a Defendant has a $4,000 personal property exemption, which means that a Defendant can protect up to $4,000 of personal property without the Plaintiff seizing this money/assets. For example, a common asset that is frozen is a banking account. If you own a checking account with $5,000, you have a legal right to exempt $4,000 in personal funds. Anything above $4,000 may legally be seized by the Plaintiff. Practically speaking, a Plaintiff will issue a Garnishment Citation to your Bank and your bank will set aside all of your monies in your bank account. The Plaintiff is entitled to every penny unless you file appropriate paperwork at the Circuit Court of Cook County in a timely manner.
After a judgment occurs, typically thirty days will go by and the Plaintiff will begin collecting against your bank accounts. As a rule of thumb, a Defendant should be aware that the Plaintiff will try to surprise them and freeze their bank account. Thus, a Defendant should be careful about writing checks because the checks will bounce and NSFs and bank fees will be substantial. The good news is with an attorney, you can get a court order to force the Bank to waive the Bank fees if your funds are protected by federal and/or state law.
Moreover, when a judgment occurs, a lien automatically is placed on any real estate that you own in your personal name. This is one reason it is important to have a Private Land Trust set up. A Private Land Trust prevents a judgment from attaching to your real estate. However, you cannot fraudulently transfer your house or investment property into a Private Land Trust to prevent a judgment being attached to your property when proceedings are occuring. Preventing a lien against your property interest is important because you must pay off all liens prior to selling your real estate. Therefore, a lien may prevent you from ever being able to sell your real estate without paying off a lien. At first glance, many people desire to pay off their bills. However, there are times when it is simply impossible to pay your judgment off. I had one particular client that desired to settle his judgment until he realized that the interest alone on his case was over $5,000 per month. It simply was impossible and impractical for him and his wife to pay this judgment. Fortunately for them, they had hired my law firm to protect their assets. Our asset protection plan worked as planned.
Sean Robertson is an Asset Protection Attorney for Physicians, Dentists, and Business Owners. If you need an asset protection attorney, Sean Robertson is happy to assist you. Sean Robertson may be reached at (312) 498-6080.
Charlie Sheen & Unexpected Lawsuits
The world is witnessing an interesting display to say the least involving Charlie Sheen. The case involving Charlie Sheen entails an important lesson, which is a lawsuit often times occurs at an unexpected time. In Charlie Sheen's case, there is no insurance that one can purchase that protects one from a breach of contract claim. This is important to remember because most business professionals and physicians assume that insurance is the answer. Unfortunately, in many instances, insurance is not available.
I represented one physician that got a huge judgment against him and his insurance policy did not cover a claim for breach of fiduciary duty and fraud. I know it sounds like a breach of fiduciary duty and fraud claim is difficult and would not apply to you. The truth is these are fairly common claims and a physician should not assume these claims would not apply to yourself.
Asset protection is vital prior to a conflict or litigation matter. I just got off the phone with an attorney that is threatening a fraudulent transfer lawsuit against one of my clients. My client allegedly transferred assets of his corporation individual prior to filing bankruptcy. This technically is a fraudulent transfer because it was intended to defraud, hinder, or delay payment of a creditor. Obviously, my client may claim that this transaction is not a fraudulent transfer and was finalized for adequate consideration. Adequate consideration means that the sale of the business was done for fair market value.
In conclusion, asset protection is critical for business owners, physicians, and dentists. In many cases, physicians are afraid of malpractice lawsuits, which is a legitimate concern. However, the unexpected lawsuit such as Charlie Sheen's example is much more likely. A breach of contract or partnership disputes are the most likely examples of unexpected lawsuits.
Sean Robertson is a corporate and asset protection attorney concentrating in estate planning, business law, and asset protection for physicians and dentists. Sean Robertson may be reached at (312) 498-6080 or Sean@RobertsonLawGroup.com.
I represented one physician that got a huge judgment against him and his insurance policy did not cover a claim for breach of fiduciary duty and fraud. I know it sounds like a breach of fiduciary duty and fraud claim is difficult and would not apply to you. The truth is these are fairly common claims and a physician should not assume these claims would not apply to yourself.
Asset protection is vital prior to a conflict or litigation matter. I just got off the phone with an attorney that is threatening a fraudulent transfer lawsuit against one of my clients. My client allegedly transferred assets of his corporation individual prior to filing bankruptcy. This technically is a fraudulent transfer because it was intended to defraud, hinder, or delay payment of a creditor. Obviously, my client may claim that this transaction is not a fraudulent transfer and was finalized for adequate consideration. Adequate consideration means that the sale of the business was done for fair market value.
In conclusion, asset protection is critical for business owners, physicians, and dentists. In many cases, physicians are afraid of malpractice lawsuits, which is a legitimate concern. However, the unexpected lawsuit such as Charlie Sheen's example is much more likely. A breach of contract or partnership disputes are the most likely examples of unexpected lawsuits.
Sean Robertson is a corporate and asset protection attorney concentrating in estate planning, business law, and asset protection for physicians and dentists. Sean Robertson may be reached at (312) 498-6080 or Sean@RobertsonLawGroup.com.
Friday, February 25, 2011
Why Estate Planning For Seniors is Important?
Estate planning is a field of law that prepares wills, powers of attorney, and trusts for seniors upon their incapacity or death. Simply put, estate planning is making sure your legal affairs are in order if something serious happens to you. One of my client’s passed away within the past two (2) weeks and his family affairs are complex and a mess.
Seniors and people often have complex family situations, which make the inheritance of assets an interesting story. Furthermore, family members and friends state that their family or friends promised them an inheritance and often times, this promise or believed promise does not occur. Despite any oral or written promises, the only way to guarantee that your legal affairs are in order is to follow the proper laws.
In the area of estate planning, wills and living trusts and powers of attorney are the key documents, which distribute your assets upon a death or incapacity. At a minimum, every senior should have a will, power of attorney for property, and power of attorney for healthcare. A will is a written device, which explains your legal wishes and often times, is notarized and witnessed by at least two (2) impartial witnesses. A power of attorney is a document where a senior grants another person the power to make decisions in case of their incapacity. A power of attorney is effective for the duration of one’s life or only during a brief period of time. There are two (2) types of powers of attorney: property and healthcare.
There are critical differences between a will and a living trust. Often times, a living trust is called a “Revocable Living Trust” because it may be amended and it serves its’ purpose during your life. Unlike a will, a living trust is equipped to deal with your property while you are alive. A will is a document that distributes your property upon your death. A living trust is a powerful legal tool because it avoids the pain of a court proceeding called probate court. Probate court is a court that hears claims brought by family, friends, and creditors of a deceased person. A living trust is also a private document unlike a will, which is public information.
In conclusion, the topic of estate planning is a difficult but necessary topic. In most families, families are complex and have step parents, step children, disabled children, and many other complex situations that make senior’s estate planning more complex than most seniors realize.
Seniors and people often have complex family situations, which make the inheritance of assets an interesting story. Furthermore, family members and friends state that their family or friends promised them an inheritance and often times, this promise or believed promise does not occur. Despite any oral or written promises, the only way to guarantee that your legal affairs are in order is to follow the proper laws.
In the area of estate planning, wills and living trusts and powers of attorney are the key documents, which distribute your assets upon a death or incapacity. At a minimum, every senior should have a will, power of attorney for property, and power of attorney for healthcare. A will is a written device, which explains your legal wishes and often times, is notarized and witnessed by at least two (2) impartial witnesses. A power of attorney is a document where a senior grants another person the power to make decisions in case of their incapacity. A power of attorney is effective for the duration of one’s life or only during a brief period of time. There are two (2) types of powers of attorney: property and healthcare.
There are critical differences between a will and a living trust. Often times, a living trust is called a “Revocable Living Trust” because it may be amended and it serves its’ purpose during your life. Unlike a will, a living trust is equipped to deal with your property while you are alive. A will is a document that distributes your property upon your death. A living trust is a powerful legal tool because it avoids the pain of a court proceeding called probate court. Probate court is a court that hears claims brought by family, friends, and creditors of a deceased person. A living trust is also a private document unlike a will, which is public information.
In conclusion, the topic of estate planning is a difficult but necessary topic. In most families, families are complex and have step parents, step children, disabled children, and many other complex situations that make senior’s estate planning more complex than most seniors realize.
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