At least a few times per week I hear talk – sometimes on the radio, sometimes at the water cooler - of consumer debt-related woes. On many of those occasions I hear the topic deteriorate into a discussion about bankruptcy. Certainly, managing a large debt load can be extremely difficult. It can lead to stress, illness, and even depression. Those who qualify for bankruptcy may find that relief under the law is the only way to dig their way out of a hopeless situation and make a fresh start for themselves or their families. While bankruptcy may be a useful tool to keep creditors under control and deal with certain debts, it also carries with it certain disadvantages. In the ideal bankruptcy situation, the debtor will be in such financial straits concerning his or her creditors that there is no other viable solution available to deal with the debt load. Bankruptcy is a complex area of the law, especially taking into consideration that Texas provides for certain property protections. It can be extremely confusing to those seeking its protections. The goal of this month's article is to cover some of the basics of this legal discipline.
Generally, the most used provisions of the Bankruptcy Code relating to individuals are Chapters 7 and 13, while Chapter 11 is more often utilized by businesses.
Chapter 7
In order to qualify for a Chapter 7 discharge of debt bankruptcy, the debtor must qualify under the Means Test. The means test works to determine how much money one makes after taking out monthly expenses from their current monthly income. The more money one is left over with the less likely one is to qualify for Chapter 7. This figure is then plugged into an average income for other states in the nation to determine how much money would be left over to repay debts. Once qualified for Chapter 7, a bankruptcy trustee takes possession of the debtors nonexempt property (called the debtor's estate) for sale in order to pay the creditors. Since Texas enjoys state laws that protect and exempt many types of property, most of the time the trustee cannot actually take many properties. Chapter 7 provides for a discharge of most consumer debts, or in other words a wiping out of that debt. A debtor does not have to make any payments to creditors out of future income. But not all debt is dischargeable. Examples of some debts that are not dischargeable are those debts not listed in the bankruptcy, student loans (unless repayment would cause undue hardship), most of the federal, state, and local taxes and money borrowed on credit cards to pay such taxes, child support, and debts arising from driving while intoxicated.
Another very important protection under bankruptcy law is the concept of the automatic stay. The automatic stay is like an iron gate that immediately drops upon the filing of a bankruptcy (called a petition) in order to keep the creditors out. Creditors are then prohibited from making any attempt to collect on the debt, including repossession and foreclosure. This is very powerful. Many debtors who get behind in their payments to creditors receive incredibly harassing telephone calls from bill collectors beginning in the morning and continuing into the night. This can truly be a miserable experience. The automatic stay can stop this activity. Finally, a debtor must wait six years before filing another Chapter 7.
Chapter 11
Chapter 11 is generally used by a business to reorganize its debts in a way that allows the debtor to continue its business from within the protection of the bankruptcy code. The debtor pays back the debts over a period of time. This could be a good tool for a business that has a chance to survive if given the opportunity to reorganize, especially in those cases where a creditor may be seeking to sue or file a lien. The business will be required to file various schedules and operating reports showing its ability to operate and repay its debts. Interestingly, the debtor files a repayment plan and the creditors are entitled to vote for or against the plan depending on how comfortable that creditor is with the terms of its repayment plan.
Chapter 13
In the event a debtor cannot pass the Means Test of Chapter 7, that debtor will likely file under Chapter 13. Similar to Chapter 11, the debtor has an opportunity to keep certain property, while entering into a payment plan with creditors to pay back the debt over time. This plan is generally utilized by debtors who want to repay some of their debts because they have steady income, but cannot repay them all at a particular time. Basically, this is best used in a temporary financial crisis. Under this chapter, a debtor may discharge certain debts after successful completion of all the payments of the payment plan. Also, debtors who find that they cannot make their required payments may still act to discharge debts through a Chapter 7. Homeowners may find this relief particularly appealing because the debtor may be allowed to reduce the monthly payments. The homeowner may also be able to make up past due payments on their mortgages. Finally, in most cases the debtor does not have to wait six years to file another Chapter 13, but can file another Chapter 13 bankruptcy at any time. Chapter 13 is probably the most complicated of the chapters.
No bankruptcy discussion would be complete without a mention of a few of the negative consequences of bankruptcy. Although they may seem small compared to the giant burden of living with uncontrollable debt, there is a downside to filing for protection. One such consequence is the stigma of living with a bankruptcy. A debtor will likely find that lenders are reluctant to loan money to them after bankruptcy. However, many times consumer credit card companies will begin sending credit offers immediately after the bankruptcy is finalized. They do this because they know that that consumer will probably not be able to file for bankruptcy protection within the next six years.
Another consequence, or rather observation, about bankruptcy filers is that the filing of a bankruptcy may times does not teach that debtor how to efficiently manage his or her finances after the bankruptcy process. It was not too long ago when people simply did not purchase goods or services unless or until that person had saved enough money to do so. It seems this logic has been replaced by a desire to immediately satisfy our wants and desires. Now we live in a day of record debt loads, bankruptcies, and foreclosures. Somehow the “American Dream” became financed by debt. There may soon be a day when the value of saving will be fashionable again. However, in the meantime, many will need to rely on the legal protections offered by bankruptcy.
Wednesday, December 23, 2009
Monday, October 26, 2009
Insurance and Assurance.
As the economy lumbers toward recovery and consumers keep a tight grip on their funds, we have seen the job market react to the situation. Likely, there is not one of us who does not know somebody whose job has been affected. According to the U.S. Bureau of Labor Statistics, the last time the unemployment rate crept over the 10% mark was in September 1982. Presently, the United States unemployment rate is hovering at 9.8%. The bad news is that we cannot predict the future so we cannot know when the rates will drop. The good news is that hindsight is 20/20, and by looking back through the lens of the Bureau's statistics, we know that within a relatively short time the unemployment rate will lower. We know that history repeats itself so we have some assurance that the rates will drop sooner than later.
Unemployment insurance is for qualified individuals who are in need of income while looking for a job in this highly competitive market. Since I have recently assisted some people in navigating the waters of unemployment insurance benefits, I thought it would be fitting to summarize a few important facts about the process, which begins by applying with the Texas Workforce Commission.
Qualifications
The three main areas of requirements are past wages, job separation, and ongoing availability and work search. An individual must have received enough wages over the past twelve month period to establish a payable claim. This is used to calculate benefits. It is a somewhat complicated process to determine the amount, but generally the weekly benefit amount will be between $59 and $406 if one has earned enough wage credits to qualify.
The next step in determining eligibility is determining what manner employment ended. An individual must be unemployed or partially unemployed through no fault of their own to receive benefits. If a person voluntarily quits then he or she should be ready to prove that some special condition applies, such as being forced to undertake hazardous working conditions, inhumane treatment, to protect oneself from some illegality at work, or a well-documented work related or medical reason. Examples of qualifying separation may include being laid off, continued unemployment but with reduced hours, or being fired without work-related misconduct. There are also other reasons when separation may qualify, such as when one spouse quits to move with the other spouse or if one spouse quits to be with a spouse who is in the military.
Finally, for each week in which one claims benefits, he or she must actively search for full-time work (unless exempted by the Texas Workforce Commission). In addition, the claimant must be physically able to work and available for full-time employment. The claimant must be registered with the Texas Workforce Commission and report there as instructed, as well as keep a detailed log of work search activities for immediate submission when requested.
Other Considerations
If the claimant meets all the qualifications then the Texas Workforce Commission will send a bank debit card funded with unemployment benefits within about three to four weeks. One thing that is important to know is that these benefits are taxable as income by the Internal Revenue Service. Taxes can be withheld if the claimant completes and returns a tax withholding form.
Unemployment insurance benefits can be of great assistance. It may not be the same pay that the individual is accustomed to receiving, but it can be enough to buy some time until the next job is found. Remember, despite the high unemployment rate, we have assurances rooted in history that there will be a rebound.
Unemployment insurance is for qualified individuals who are in need of income while looking for a job in this highly competitive market. Since I have recently assisted some people in navigating the waters of unemployment insurance benefits, I thought it would be fitting to summarize a few important facts about the process, which begins by applying with the Texas Workforce Commission.
Qualifications
The three main areas of requirements are past wages, job separation, and ongoing availability and work search. An individual must have received enough wages over the past twelve month period to establish a payable claim. This is used to calculate benefits. It is a somewhat complicated process to determine the amount, but generally the weekly benefit amount will be between $59 and $406 if one has earned enough wage credits to qualify.
The next step in determining eligibility is determining what manner employment ended. An individual must be unemployed or partially unemployed through no fault of their own to receive benefits. If a person voluntarily quits then he or she should be ready to prove that some special condition applies, such as being forced to undertake hazardous working conditions, inhumane treatment, to protect oneself from some illegality at work, or a well-documented work related or medical reason. Examples of qualifying separation may include being laid off, continued unemployment but with reduced hours, or being fired without work-related misconduct. There are also other reasons when separation may qualify, such as when one spouse quits to move with the other spouse or if one spouse quits to be with a spouse who is in the military.
Finally, for each week in which one claims benefits, he or she must actively search for full-time work (unless exempted by the Texas Workforce Commission). In addition, the claimant must be physically able to work and available for full-time employment. The claimant must be registered with the Texas Workforce Commission and report there as instructed, as well as keep a detailed log of work search activities for immediate submission when requested.
Other Considerations
If the claimant meets all the qualifications then the Texas Workforce Commission will send a bank debit card funded with unemployment benefits within about three to four weeks. One thing that is important to know is that these benefits are taxable as income by the Internal Revenue Service. Taxes can be withheld if the claimant completes and returns a tax withholding form.
Unemployment insurance benefits can be of great assistance. It may not be the same pay that the individual is accustomed to receiving, but it can be enough to buy some time until the next job is found. Remember, despite the high unemployment rate, we have assurances rooted in history that there will be a rebound.
Tuesday, September 22, 2009
Where There’s Will There’s a Way
Many of my clients have heard me declare my belief that everyone eighteen years of age or older in the State of Texas should have a will. I usually follow that up with another statement regarding the need for a living will, durable power of attorney, and a medical power of attorney. These documents are not only useful for people with large estates but they can prove very important for people with very small estates as well. If you die in Texas without a will, then certain statutes under Texas law will dictate how your assets will be divided among your heirs. The statutes also determine who may be appointed as a guardian over your minor children, and it may be somebody you would not have chosen. This month’s article will discuss some of the more persuasive reasons why I feel estate planning is essential to protecting your interests.
Do You Really Need Estate Planning?
Like many people in Texas, there are those who do not have minor children, significant personal or real property, or extended family. This is a scenario in which after speaking with you I tell that you may not actually need a will (although my official advice would still be to draft a very simply will just to cover any property that you may not even know you owned – yes, that happens). However, you and your loved ones would benefit tremendously from estate planning documents such as powers of attorney for medical, financial, and health care. These documents, to which I alluded above, afford you with the peace, security, and comfort of knowing that your interests will be taken care of in the event you become incapacitated and cannot make sound decisions for yourself. A living will makes your wishes know about whether to administer life prolonging medical treatment. Sometimes this is called an advance directive or directive to physician. For example, you may recall that in 2005 Ms. Terri Schiavo’s case was in the national news because her husband and guardian argued that she would not have wanted life support. In fact, Terri had been in a persistent vegetative state since 1990. It was a heartbreaking case of medical ethics and the right freedom of an individual to control and limit medical intervention. A durable power of attorney authorizes your agent to manage and make decisions about your income and assets in the event you become incapacitated. A medical power of attorney allows you to assign an agent to make decisions about your medical care in the event you become incapacitated. Importantly, this also allows you to provide your agent, family members, and healthcare providers with written instructions regarding the type of treatments that should or should not be given.
Okay, So You Need a Will
You may have heard the stories about people writing their wills on napkins or hotel stationary. I have even read a story about a man who, after accidentally rolling his tractor over onto himself, wrote his last will on the fender of the tractor just before dying. Any person eighteen years or older or any married minor or minor in the Armed Forces, and who is of sound mind may make a will in Texas. The basic requirements for a valid will in Texas depend on what kind of will you want to make. A typewritten will must (1) be signed by the person making the will (testator), or signed in the presence of the testator at the testator’s direction; and (2) be witnessed (attested to) by at least two witnesses over the age of 14. Texas law also provides for a holographic will, which is a will that is wholly in the handwriting of the testator and then signed by the testator. This will does not need to be signed in the presence of witnesses. A Texan can also make an oral will but this is only valid for personal property. An oral will is valid if made by the testator in his or her last illness and at his or her home, unless he or she has been take sick away from home and dies before returning home. This type of will may require a certain number of witnesses. As one can imagine, the typewritten will is the best option to avoid challenges to the probate of the will.
Intestacy
Intestacy means that a person has died without leaving a last will. In this scenario, the State controls how your property is divided among your heirs. Some surveys show that up to 70% of Texans die intestate. Even well-known Texas billionaire Howard Hughes dies without leaving a will. Intestacy laws in Texas are extremely complex and require the deceased’s heirs to work within the Court system to administer an estate. Other intestacy considerations are whether the person was married or unmarried, surviving descendants, surviving parents, surviving siblings, and the degree of relationship among the heirs of the deceased.
Everyone who has the privilege of making a will should do so. It can be one of the most important items to leave behind for your heirs, and it can save them a great deal of time and expense. Also, the other estate planning documents should be drafted so that your wishes can be made known to your loved ones and to your doctors. I would encourage you to meet with an estate planning lawyer to discuss your specific details and goals. Moreover, I would be happy to schedule a time to review your situation or previous will to assist you with implementing an estate plan or making a change to your current will.
Do You Really Need Estate Planning?
Like many people in Texas, there are those who do not have minor children, significant personal or real property, or extended family. This is a scenario in which after speaking with you I tell that you may not actually need a will (although my official advice would still be to draft a very simply will just to cover any property that you may not even know you owned – yes, that happens). However, you and your loved ones would benefit tremendously from estate planning documents such as powers of attorney for medical, financial, and health care. These documents, to which I alluded above, afford you with the peace, security, and comfort of knowing that your interests will be taken care of in the event you become incapacitated and cannot make sound decisions for yourself. A living will makes your wishes know about whether to administer life prolonging medical treatment. Sometimes this is called an advance directive or directive to physician. For example, you may recall that in 2005 Ms. Terri Schiavo’s case was in the national news because her husband and guardian argued that she would not have wanted life support. In fact, Terri had been in a persistent vegetative state since 1990. It was a heartbreaking case of medical ethics and the right freedom of an individual to control and limit medical intervention. A durable power of attorney authorizes your agent to manage and make decisions about your income and assets in the event you become incapacitated. A medical power of attorney allows you to assign an agent to make decisions about your medical care in the event you become incapacitated. Importantly, this also allows you to provide your agent, family members, and healthcare providers with written instructions regarding the type of treatments that should or should not be given.
Okay, So You Need a Will
You may have heard the stories about people writing their wills on napkins or hotel stationary. I have even read a story about a man who, after accidentally rolling his tractor over onto himself, wrote his last will on the fender of the tractor just before dying. Any person eighteen years or older or any married minor or minor in the Armed Forces, and who is of sound mind may make a will in Texas. The basic requirements for a valid will in Texas depend on what kind of will you want to make. A typewritten will must (1) be signed by the person making the will (testator), or signed in the presence of the testator at the testator’s direction; and (2) be witnessed (attested to) by at least two witnesses over the age of 14. Texas law also provides for a holographic will, which is a will that is wholly in the handwriting of the testator and then signed by the testator. This will does not need to be signed in the presence of witnesses. A Texan can also make an oral will but this is only valid for personal property. An oral will is valid if made by the testator in his or her last illness and at his or her home, unless he or she has been take sick away from home and dies before returning home. This type of will may require a certain number of witnesses. As one can imagine, the typewritten will is the best option to avoid challenges to the probate of the will.
Intestacy
Intestacy means that a person has died without leaving a last will. In this scenario, the State controls how your property is divided among your heirs. Some surveys show that up to 70% of Texans die intestate. Even well-known Texas billionaire Howard Hughes dies without leaving a will. Intestacy laws in Texas are extremely complex and require the deceased’s heirs to work within the Court system to administer an estate. Other intestacy considerations are whether the person was married or unmarried, surviving descendants, surviving parents, surviving siblings, and the degree of relationship among the heirs of the deceased.
Everyone who has the privilege of making a will should do so. It can be one of the most important items to leave behind for your heirs, and it can save them a great deal of time and expense. Also, the other estate planning documents should be drafted so that your wishes can be made known to your loved ones and to your doctors. I would encourage you to meet with an estate planning lawyer to discuss your specific details and goals. Moreover, I would be happy to schedule a time to review your situation or previous will to assist you with implementing an estate plan or making a change to your current will.
Monday, August 31, 2009
September 2009 Huntington Herald Article
There’s No Place Like Home
As a real estate salesperson and a real estate lawyer, one of the issues that repeatedly comes up in my practice, as well as in the headlines, is the real estate market. Real estate is the oldest profession in the world, despite what misinformation some people believe. Throughout history, those individuals and governments who owned the land held the ultimate earthly power. For example, in feudal England, the land owners created their own justice, imposed taxes, printed their own coins, granted others the ability to live and work on the land (or excluded whomever they wished), and forced individuals subject to the lands into military service. This was all done under the power and authority purportedly granted by the principles of ownership of the real estate. Currently, Queen Elizabeth II is owner of the most real estate on Earth. She owns approximately 6.6 million acres of land (1/6th of the non ocean surface of the Earth). Roughly valued, that is about $33 Trillion dollars. Interestingly, the United States is the fourth largest landowner in the world with about 700 million acres, coming in behind Russia and China. Undeniably, an ownership interest in real estate is extremely powerful. When dealing with such powerful interests, involving your lawyer can help you better understand your rights and options.
Depending on the situation, you may either know or be someone who wants to rent, sell, or purchase real estate. Factors that lead to these decisions may be based upon a growing family, job relocation, or by simply downsizing one's lifestyle. Whatever the reason for entering into a real estate transaction, working with your real estate professional and lawyer can greatly assist you in dealing with the real estate players, whether it be owner, renter/purchaser, or the bank. Real estate transactions have become incredibly complex. The following factors are barely the tip of the iceberg, but represent some key issues to consider.
Financing. It appears that owning property is still symbolic of wealth and achievement because people are still clamoring to sign a thirty year mortgage and encumber themselves with half a million dollars in debt to own property. The mortgage secures the debt and gives the lender powerful rights. Your lawyer should review all your mortgage and lender documents for errors, omissions, and extra charges or expenses. Lawyers can work to make the closing process smoother and easier to understand. Your lawyer should also review any value appraisals and title commitments to ensure that your best interests are protected. Renters/Purchasers should understand how to create a budget and stay within safe financial bounds. Your lawyer can assist in the prequalification process and help you understand the multitude of creative tactics that some lenders use to entice buyers, such as points, no closing costs, and ARM mortgages. Sadly, the market is flooded with distressed properties from people who meant well, but did not understand the financial data and terms.
Documentation. One of the most difficult and time-consuming issues is paperwork. That goes for the owners who don't take the time to carefully draft them as well as the renters/purchasers who don't carefully review them. Although it may appear to be layer upon layer of lawyer-speak, “the devil is in the details”. On the owner's side of the equation, a real estate lawyer can assist you in drafting leases and ownership transfer documentation. Lease documents should conform to the current laws, and owners and renters/purchasers should be aware of liability issues such as dangerous conditions, repairs, and deposits. On the renter/purchaser side, advice may be required for explanation of terms and meanings, especially in longer residential or commercial leases, or in a mortgage document or deed. It is critical to understand what you are signing. In today’s real estate market, it is important to make informed decisions.
Disclosure/Inventory & Condition Issues. In a real estate transaction, the seller will generally provide a disclosure statement pursuant to the Texas Property Code, although there are times when a seller will not want to provide one for strategic reasons. Whether you are a seller or a purchaser, you should consult with your lawyer prior to closing on a real estate transaction to determine your rights and responsibilities under the law. A material misrepresentation or failure to provide a disclosure may give purchasers strong remedies under certain circumstances. For lease situations, a landlord should receive and a renter should complete a move-in inventory and condition form. Landlords should notify tenants of statutory remedies when the landlord fails to make repairs under certain situations. For tenants, the form places the landlord on notice of defects, irregularities, damages, or missing items discovered upon move-in. This can protect the renter from being charged for problems that occurred prior to move-in. It protects the landlord by keeping track of damages incurred by the previous renters, as well as allowing the landlord to more accurately track damages and repairs that may be assessed to the previous or current tenant.
Remember, your lawyer owes you a duty to represent your best interests. The business of real estate has been booming since there was land and humans, so there is a vast amount of information to cover. A knowledgeable real estate lawyer can help you navigate these complicated waters.
Jeremy Crew is licensed by the State Bar of Texas and is admitted to practice law in all Texas courts. He is a member of Texas Young Lawyers Association, Texas Bar Association, and American Bar Association. Mr. Crew’s office is located at 115 W. Shepherd Ave. in downtown Lufkin.
As a real estate salesperson and a real estate lawyer, one of the issues that repeatedly comes up in my practice, as well as in the headlines, is the real estate market. Real estate is the oldest profession in the world, despite what misinformation some people believe. Throughout history, those individuals and governments who owned the land held the ultimate earthly power. For example, in feudal England, the land owners created their own justice, imposed taxes, printed their own coins, granted others the ability to live and work on the land (or excluded whomever they wished), and forced individuals subject to the lands into military service. This was all done under the power and authority purportedly granted by the principles of ownership of the real estate. Currently, Queen Elizabeth II is owner of the most real estate on Earth. She owns approximately 6.6 million acres of land (1/6th of the non ocean surface of the Earth). Roughly valued, that is about $33 Trillion dollars. Interestingly, the United States is the fourth largest landowner in the world with about 700 million acres, coming in behind Russia and China. Undeniably, an ownership interest in real estate is extremely powerful. When dealing with such powerful interests, involving your lawyer can help you better understand your rights and options.
Depending on the situation, you may either know or be someone who wants to rent, sell, or purchase real estate. Factors that lead to these decisions may be based upon a growing family, job relocation, or by simply downsizing one's lifestyle. Whatever the reason for entering into a real estate transaction, working with your real estate professional and lawyer can greatly assist you in dealing with the real estate players, whether it be owner, renter/purchaser, or the bank. Real estate transactions have become incredibly complex. The following factors are barely the tip of the iceberg, but represent some key issues to consider.
Financing. It appears that owning property is still symbolic of wealth and achievement because people are still clamoring to sign a thirty year mortgage and encumber themselves with half a million dollars in debt to own property. The mortgage secures the debt and gives the lender powerful rights. Your lawyer should review all your mortgage and lender documents for errors, omissions, and extra charges or expenses. Lawyers can work to make the closing process smoother and easier to understand. Your lawyer should also review any value appraisals and title commitments to ensure that your best interests are protected. Renters/Purchasers should understand how to create a budget and stay within safe financial bounds. Your lawyer can assist in the prequalification process and help you understand the multitude of creative tactics that some lenders use to entice buyers, such as points, no closing costs, and ARM mortgages. Sadly, the market is flooded with distressed properties from people who meant well, but did not understand the financial data and terms.
Documentation. One of the most difficult and time-consuming issues is paperwork. That goes for the owners who don't take the time to carefully draft them as well as the renters/purchasers who don't carefully review them. Although it may appear to be layer upon layer of lawyer-speak, “the devil is in the details”. On the owner's side of the equation, a real estate lawyer can assist you in drafting leases and ownership transfer documentation. Lease documents should conform to the current laws, and owners and renters/purchasers should be aware of liability issues such as dangerous conditions, repairs, and deposits. On the renter/purchaser side, advice may be required for explanation of terms and meanings, especially in longer residential or commercial leases, or in a mortgage document or deed. It is critical to understand what you are signing. In today’s real estate market, it is important to make informed decisions.
Disclosure/Inventory & Condition Issues. In a real estate transaction, the seller will generally provide a disclosure statement pursuant to the Texas Property Code, although there are times when a seller will not want to provide one for strategic reasons. Whether you are a seller or a purchaser, you should consult with your lawyer prior to closing on a real estate transaction to determine your rights and responsibilities under the law. A material misrepresentation or failure to provide a disclosure may give purchasers strong remedies under certain circumstances. For lease situations, a landlord should receive and a renter should complete a move-in inventory and condition form. Landlords should notify tenants of statutory remedies when the landlord fails to make repairs under certain situations. For tenants, the form places the landlord on notice of defects, irregularities, damages, or missing items discovered upon move-in. This can protect the renter from being charged for problems that occurred prior to move-in. It protects the landlord by keeping track of damages incurred by the previous renters, as well as allowing the landlord to more accurately track damages and repairs that may be assessed to the previous or current tenant.
Remember, your lawyer owes you a duty to represent your best interests. The business of real estate has been booming since there was land and humans, so there is a vast amount of information to cover. A knowledgeable real estate lawyer can help you navigate these complicated waters.
Jeremy Crew is licensed by the State Bar of Texas and is admitted to practice law in all Texas courts. He is a member of Texas Young Lawyers Association, Texas Bar Association, and American Bar Association. Mr. Crew’s office is located at 115 W. Shepherd Ave. in downtown Lufkin.
Monday, August 10, 2009
August 2009 Huntington Herald Article
I’ve been sued! What am I supposed to do now!?
Thankfully, many of us will not find ourselves in this position before the state court system of Texas or the United States. However, there are certain times when some are hurled into these legal arenas despite best efforts to avoid it. Working in the courts as often as I do, I have noticed that many attorneys take for granted that the rest of the world may not know exactly what to do if they ever find themselves a party to a lawsuit. So, what do you do when you have been sued? The answer is a bit counterintuitive, but you should maintain your calm and keep a level head. This article will outline some of the general issues one should be aware of.
Demand Letter
This is really something that one would receive prior to the filing of a law suit, but it is important to mention because dealing a problem early on may result in a more efficient resolution. The goal of the demand letter is to offer the other party an opportunity to settle the problem without the necessity of filing a lawsuit. This letter also is usually an effort to begin the clock for the thirty day requirement of the Texas Civil Practice and Remedies Code that allows a plaintiff to recover attorney fees if successful.
Process Server
Once the lawsuit is filed with the Clerk of the appropriate court holding jurisdiction over the subject matter of the dispute, a process server will attempt to deliver the service of process. There are several methods by which service of process may be accomplished. Traditionally, the Constable is sent out to the address specified on the lawsuit to personally serve the defendant with process (called the citation). At this time certain clocks begin ticking for action and responses.
The law also allows for a private process server to serve the process. This person is not wearing any distinguishing clothing like the Constable will be. It is advisable to simply accept the service and contact your attorney. As with the Constable, attempting to avoid or flee from them will not help. They may be able to leave the citation with another person or even tape the citation to your door. Under certain circumstances, service can be made by publication. These are the legal notices that you may sometimes see in a local newspaper.
Default Judgment
If one does not respond to the lawsuit within the time allowed by law then a judgment may be entered against you by default. Unfortunately, default judgments are somewhat common. In a lawsuit, I think the natural tendency for some people is to ignore it and hope that it goes away. This is not a good approach. One should remain calm and keep a cool head.
A capable, attentive attorney is worth his weight in gold. As early as possible, it is important to locate and hire an attorney to advise you and represent your best interests. Your attorney can assist you with statutory guidelines, strategic decisions, and valuable counsel. Also, your attorney may determine that you have a valid counter claim against the party filing the suit. Just remember that you are not alone. In my profession, there is no shortage of manpower. Common ways to locate an attorney are through the local phone book, the Texas Lawyer Referral Information Service, or by word of mouth.
Jeremy Crew is licensed by the State Bar of Texas and is admitted to practice law in all Texas courts. He is a member of Texas Young Lawyers Association, Texas Bar Association, and American Bar Association. Mr. Crew’s office is located at 115 W. Shepherd Avenue in downtown Lufkin.
Wednesday, June 24, 2009
New Downtown Office
I am pleased to announce my new office location in downtown Lufkin. I chose an area just off the courthouse square at 115 West Shepherd Avenue. This is a great location and I am excited about the new headquarters for my practice.
July 2009 Column of the Huntington Herald
In May 2009, after attending school and working in Houston and Austin, I made my second relocation back home to Huntington. In both occurrences I came from the big city, but with very different outlooks on life. Returning to East Texas a bit older, and this time with a family of my own, I am more aware of those indispensible ideals and values that truly make life worthwhile. Small town life offers much one simply does not find in the big city, such as self reliance, strength, pride, family, hard work, and integrity. Sadly, these traits seem to become lost in the hustle and bustle (and traffic) of the larger cities in which I have lived. It is good to improve one’s outlook. It is good to be back.
One thing I have noticed upon returning to East Texas is the thriving sprit of entrepreneurship. Each week more and more East Texans are starting their own businesses. Some are operating part-time side ventures while others are leaving longtime positions to start something completely new. When beginning a business it is critical to determine what type of business entity should be considered. Business entities, when properly utilized, may protect individuals from personal liability in most situations. My clients generally ask me about three different types of business entities during our initial meeting: “doing business as” (“D/B/A”), limited liability company (“LLC”), and the traditional corporation. I will outline some of the basic differences.
D/B/A. This form of business is not filed with the Secretary of State, as it is not truly a separate entity apart from the owner. This allows the business owner to operate in the business name rather than his or her own individual name. One can accept payments, open a bank account, and advertise with the particular business name. The major consideration here is that the business owner is not shielded from personal liability. The business owner has unlimited liability.
LLC. This is an extremely popular and effective business form in the United States. This type of entity enjoys a management and operation type that is very flexible compared to the traditional corporation. Owners operate the LLC by means of an operating agreement. Most importantly, the LLC shields the business owner from personal liability in most situations. Another significant advantage is that the LLC’s income passes through the LLC to the business owner’s tax rate. There may be other tax advantages so I strongly suggest working with your tax professional and attorney if you have questions about that aspect of the LLC.
Corporation. This is the traditional form. Owners sell shares of the company’s stock to raise capital to operate the business. The corporation protects the business owner from personal liability in most situations, and the duration can be perpetual. Management and operation of the corporation is complex and involves a board of directors, officers, annual meetings, elections, and annual reportings. Also, the traditional corporation is taxed at the corporate rate and thus subject to “double taxation.” Once again, your tax professional can answer many of the tax questions.
Although this topic may not set your heart to racing or be tomorrow’s heated topic at the water cooler (when I had trouble sleeping during law school I would simply think of my business law class and soon fall fast asleep), proper organization and planning of your new business can help to ensure that it will be successful. If you are thinking of starting your own business and have any questions about these or any other business entities, please consult an attorney to discuss.
It is a pleasure to live and share in this community with you. If you see me around town or happen to be near my office, please stop by to say hello. I look forward to the opportunity to meet you.
Jeremy Crew is licensed by the State Bar of Texas and is admitted to practice law in all Texas courts। He is a member of Texas Young Lawyers Association, Texas Bar Association, and American Bar Association. Mr. Crew’s office is located at 115 W. Shepherd Ave. in downtown Lufkin.
One thing I have noticed upon returning to East Texas is the thriving sprit of entrepreneurship. Each week more and more East Texans are starting their own businesses. Some are operating part-time side ventures while others are leaving longtime positions to start something completely new. When beginning a business it is critical to determine what type of business entity should be considered. Business entities, when properly utilized, may protect individuals from personal liability in most situations. My clients generally ask me about three different types of business entities during our initial meeting: “doing business as” (“D/B/A”), limited liability company (“LLC”), and the traditional corporation. I will outline some of the basic differences.
D/B/A. This form of business is not filed with the Secretary of State, as it is not truly a separate entity apart from the owner. This allows the business owner to operate in the business name rather than his or her own individual name. One can accept payments, open a bank account, and advertise with the particular business name. The major consideration here is that the business owner is not shielded from personal liability. The business owner has unlimited liability.
LLC. This is an extremely popular and effective business form in the United States. This type of entity enjoys a management and operation type that is very flexible compared to the traditional corporation. Owners operate the LLC by means of an operating agreement. Most importantly, the LLC shields the business owner from personal liability in most situations. Another significant advantage is that the LLC’s income passes through the LLC to the business owner’s tax rate. There may be other tax advantages so I strongly suggest working with your tax professional and attorney if you have questions about that aspect of the LLC.
Corporation. This is the traditional form. Owners sell shares of the company’s stock to raise capital to operate the business. The corporation protects the business owner from personal liability in most situations, and the duration can be perpetual. Management and operation of the corporation is complex and involves a board of directors, officers, annual meetings, elections, and annual reportings. Also, the traditional corporation is taxed at the corporate rate and thus subject to “double taxation.” Once again, your tax professional can answer many of the tax questions.
Although this topic may not set your heart to racing or be tomorrow’s heated topic at the water cooler (when I had trouble sleeping during law school I would simply think of my business law class and soon fall fast asleep), proper organization and planning of your new business can help to ensure that it will be successful. If you are thinking of starting your own business and have any questions about these or any other business entities, please consult an attorney to discuss.
It is a pleasure to live and share in this community with you. If you see me around town or happen to be near my office, please stop by to say hello. I look forward to the opportunity to meet you.
Jeremy Crew is licensed by the State Bar of Texas and is admitted to practice law in all Texas courts। He is a member of Texas Young Lawyers Association, Texas Bar Association, and American Bar Association. Mr. Crew’s office is located at 115 W. Shepherd Ave. in downtown Lufkin.
Friday, May 22, 2009
First Entry
Greetings! This is my first web log entry. I have relocated back to East Texas and am now serving the greater Lufkin community. My new office is a general practice of law and I encourage you to contact me if you have any questions about your specific matter.
I am excited to be back in the country and hope to meet you soon. Please bookmark this site so you may continue to check on my latest insights and postings.
Best wishes,
Jeremy Crew
I am excited to be back in the country and hope to meet you soon. Please bookmark this site so you may continue to check on my latest insights and postings.
Best wishes,
Jeremy Crew
Subscribe to:
Posts (Atom)