Title: August 13, 2007
Q. I have a judgment against a customer who did not pay for my landscaping services. How do I get paid?
A. You need to get a lien on his/her real property. The mechanics of creating a lien are as follows: You need to obtain an Abstract of Judgment which reflects the amount and date of Judgment, name and address of creditor (you) as well as the name and address of debtor. The Abstract is issued by the judgment Court. This Abstract is then recorded with the County Recorder in the county where the debtor owns real property. Usually, the judgment lien will be satisfied from the sale proceeds when the property is sold, or refinanced. The lien is secured by the property. You are also entitled to statutory interest, presently 10% per annum. To create a lien against personal property, you need to file a Notice of Judgment lien with the Secretary of State where the debtor resides. Such lien includes information about the creditor and the debtor, the amount and date of judgment and court of issuance and amount of judgment, and the date that the notice was sent to the judgment debtor. Such lien can be used against accounts receivable, equipment, farm products, automobiles and trucks, RVs, etc. The lien will be satisfied when the property is sold. Most often, any property owned by the debtor transferred without satisfaction of the judgment is transferred subject to the lien. This means that if the lien is not satisfied prior to the transfer being made, the property remains subject to the lien in the hands of the transferee, i.e. the property can be taken away from the person who obtained it from the debtor.
Q. I want to incorporate my business. What is an “S” corporation as opposed to a “C” corporation?
A. S and C refer to how the corporation is taxed. An “S” corporation is an ordinary business corporation that has elected to be taxed under Subchapter C of the Internal Revenue Code. It is not taxed on its earnings as a corporation, but instead its earnings are passed through to its shareholders for tax purposes. It is limited to a certain number of shareholders and who may be a shareholder. It is also limited to one class of stock. Losses can be passed on to the investors, two levels of taxation can often be avoided, there is no accumulated earnings tax and there is limited liability protection. A “C” corporation is doubly taxed unless it qualifies and receives IRS approval to be taxed under an “S” corporation.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880
Showing posts with label debtor. Show all posts
Showing posts with label debtor. Show all posts
Tuesday, March 24, 2009
Monday, March 2, 2009
Legal Eaze #31 Bankruptcy/ Sue Hospital
Title: September 28, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I have heard that bankruptcy laws will change pretty soon, making it much more difficult to get rid of credit card debt. When will the new law be applicable and will someone making about $22,000 a year supporting a family of five be able to file for Chapter 7 Bankruptcy?
A. The new law is called “The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005” and will be implemented starting Oct. 17, 2005. Every “would-be filer” will be required to undergo credit counseling. A certified a completion will need to be filed with the Bankruptcy Court. There will be a “means test” which each individual will have to meet in order to qualify for filing a Chapter 7 bankruptcy. In California, the median income for a one-person family is $42,012, a two-person family $53,506, three-person family $59,633 and four-person family $68,310. Obviously with a yearly income of $22,000 for a family of five will qualify you. It is very likely that many Kern County residents will qualify as the income median in this county is lower than the median of the entire state of California. Nevertheless it may be dangerous to generalize as each case must go through the means test. An investigation needs to be conducted by the attorney willing take on the case with regards to the assets of the debtor to ensure that all such assets have been disclosed.
Q. My 87-year old mother was hospitalized for several days last year after suffering from congestive heart failure. She was injured when she attempted to go to the bathroom unescorted. She fell down and broke her hip. She has never recovered from this grave accident and is still, to this day, in a wheelchair. I want to know if I can sue the hospital for failing to provide sufficient supervision while she was a patient there.
A. This is a loaded question and I will not be able to provide an answer that will satisfy you. The answer is: it depends. Medical malpractice is an area of the law that is fraught with dangers and is very expensive to prosecute. Hence I have stayed away from it. Even if you could prove that the hospital itself or its staff are liable for your mother’s accident, the recovery can be severely limited due to certain quirks of the law. Moreover, damages incurred by an 87-year old are further limited by her failure to have much earning potential as well as many other factors. I really cannot expand on my answer as even I have limits in my legal knowledge of Med-mal.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I have heard that bankruptcy laws will change pretty soon, making it much more difficult to get rid of credit card debt. When will the new law be applicable and will someone making about $22,000 a year supporting a family of five be able to file for Chapter 7 Bankruptcy?
A. The new law is called “The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005” and will be implemented starting Oct. 17, 2005. Every “would-be filer” will be required to undergo credit counseling. A certified a completion will need to be filed with the Bankruptcy Court. There will be a “means test” which each individual will have to meet in order to qualify for filing a Chapter 7 bankruptcy. In California, the median income for a one-person family is $42,012, a two-person family $53,506, three-person family $59,633 and four-person family $68,310. Obviously with a yearly income of $22,000 for a family of five will qualify you. It is very likely that many Kern County residents will qualify as the income median in this county is lower than the median of the entire state of California. Nevertheless it may be dangerous to generalize as each case must go through the means test. An investigation needs to be conducted by the attorney willing take on the case with regards to the assets of the debtor to ensure that all such assets have been disclosed.
Q. My 87-year old mother was hospitalized for several days last year after suffering from congestive heart failure. She was injured when she attempted to go to the bathroom unescorted. She fell down and broke her hip. She has never recovered from this grave accident and is still, to this day, in a wheelchair. I want to know if I can sue the hospital for failing to provide sufficient supervision while she was a patient there.
A. This is a loaded question and I will not be able to provide an answer that will satisfy you. The answer is: it depends. Medical malpractice is an area of the law that is fraught with dangers and is very expensive to prosecute. Hence I have stayed away from it. Even if you could prove that the hospital itself or its staff are liable for your mother’s accident, the recovery can be severely limited due to certain quirks of the law. Moreover, damages incurred by an 87-year old are further limited by her failure to have much earning potential as well as many other factors. I really cannot expand on my answer as even I have limits in my legal knowledge of Med-mal.
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