BREAKING THE ATTORNEY MOLD
ONE CLIENT AT A TIME
Affordable
Friendly
Attentive
Innovative
Responsive
The information provided below is generic in nature and should not be construed as legal advice. We recommend that you consult an attorney to obtain personalized advice catered to your unique situation and the applicable laws.
Tax & IRS Issues Trust/Estate Plan Business Structures Bankruptcy Debt Settlement Asset Protection Short Sale

Tax & IRS Issues

Trust/Estate Plan

  • Why would I need a Trust/Estate Plan?Open or Close

    The estate of any individual who passes away without a trust will likely need to pass thru probate, a lengthy and expensive process in most cases. This is unnecessary with a properly drawn and funded Trust. In addition, an estate plan normally includes documents which greatly simplify the end-stage aspects of life such as when an individual may need life support but cannot make their own health care decisions.

  • What is required to set one up?Open or Close

    To establish an estate plan, a person or couple need to identify who will act as trustees and successor trustees, who will be the guardian of any minor children, who the beneficiaries will be and how will the estate be distributed to the beneficiaries. All of the information needed is reflected in the Trust Engagement Letter/Packet.

  • Can a Trustee/Successor Trustee live in a different state?Open or Close

    Yes, so long as they are made aware and have copies of the Trust/Estate Plan, they can reside in a different state.

  • What type of trust would I need?Open or Close

    While there are many types of trusts designed for specific purposes, normally, a Revocable Living Trust (sometimes referred to as a “Family Living Trust”) is often the right estate planning tool. In some cases the trust should also include tax planning provisions.

  • Who or what can the beneficiaries be?Open or Close

    The beneficiaries can be any legal entity (person, business, charity, etc.) but cannot normally be an animal or other inanimate object not recognized by law -

  • If I have a trust do I still need a will?Open or Close

    Yes, but only as a backup measure. Your will serves as a guarantee that anything that you acquired but that did not become part of the trust will still be moved to the trust after your death and be distributed according to your wishes. Keep in mind that while this will insure your wishes are respected, any assets not in the trust will have to pass thru probate (lengthy and costly) so the best approach is to always transfer assets to the trust as quickly as possible.

  • How do I make changes/updates to my Trust/Estate Plan?Open or Close

    We will provide you with some basic amendment forms you can use to “Amend” your trust. These are useful to change a Trustee or modify a simply provision. However, if you intend to make more than just a simply change to your Trust we recommend you contact us for assistance.

  • What happens to my trust if I move to a different state?Open or Close

    Your Trust is still valid and will remain in effect until you revoke it no matter where you live. If you acquire property in a state different from the one in which you formed your Trust you may want to consult with us to determine if there are any additional matters of concern but normally there should not be substantive issues to address.

Business Structures

  • When do you need a corporate structure?Open or Close

    Corporate structures (C-Corporation, Partnership or LLC for example) serve two important purposes:

    (1) they provide liability protection for your personal assets when you are involved in a business activity that could give rise to liability, and

    (2) they often provide greater opportunities for tax savings than would be possible if business activities are reported on the Schedule C associated with a personal return. If either of these situations apply to you, a corporate structure may be helpful in achieving your financial goals.

  • Why a LLC instead of a Sole Proprietorship, Partnership, S or C Corporation? Open or Close

    Sole Proprietorships and Partnerships are “tax-free” entities in that they pay no tax. Any profits or losses realized by these entities pass directly to the owners to be taxed at the owner's tax rate. These entities are usually simple to set up and often require only limited fees and a simple filing with the state corporation commission. However, neither structure provides ANY liability protection for its owners. Any liability that arises as a result of the owner (or partners in a partnership) subjects all owners to both professional and personal liability.

    Corporations, on the other hand, provide complete liability protection. Anything occurring as a result of the actions of the corporation or its business activities does not impact the owner's personally. Only those funds invested in the corporation are at risk and only the corporation's assets (not the individual's personal assets) can be used to satisfy any liability that arises. Unfortunately, income earned by the corporation is taxed twice; once at the corporate level and then again when the remaining profits are distributed to owners (capital gains tax). In addition, corporations must file annually with the state of incorporation and pay a fee each year as part of this annual filing process. S-Corporations, a special version of the corporation, can be used to eliminate the double-taxation problem but still have the other problems associated with the corporation in general.

    A Limited Liability Company (“LLC”) can be used to get the benefits of all of these. LLC's enjoy complete liability protection like a corporation and, if there are at least two owners (called “members” in an LLC); the LLC can elect to be treated as a partnership for tax purposes, thus eliminating the double taxation. In addition, filing requirements for LLC's are usually very minimal and in many states there is also no annual filing requirement. For these reasons, LLC's are often the best legal structure to use.

  • What is required to form a LLC?Open or Close

    The requirements to form an LLC vary by state but generally require that Articles of Organization be filled with the state and that these are then published through a newspaper or other means. These articles require a unique name for the corporation (not already in use by another entity in the state), identification of the Statutory Agent and Statutory Address (person physically located within the state boundaries that can receive official correspondence for the LLC) and the identification of the major owners/managers.

    In addition to the Articles of Organization, the LLC should obtain a Tax Identification Number from the IRS (this can be done online) and establish an Operating Agreement. The operating agreement serves as the “rules” or “bylaws” for the corporation and is perhaps the most important document in the setup process. It should contain the rights, procedures, voting requirements, limits and expectations of all the members and managers. Because this document is the governing instrument for the LLC, it is often wise to have an attorney draft the document.

  • How do you maintain a LLC? Open or Close

    Each LLC you establish should have its own bank account. All business income should be deposited in this account and any business expenses should be paid out of this account. In addition, if you make any changes to the ownership, statutory agent or address of the LLC, you may be required to file the changes with the state.

  • How do I go about changing/updating my LLC? Open or Close

    Changes or Edits can be done by filing Articles of Amendment with the Arizona Corporation Commission. In some cases the Articles of Amendment will be required to then be published through a newspaper or other means. Any changes on the Articles of Amendment should also be reflected in Operating Agreement.

Bankruptcy

  • What protection does bankruptcy provide? Open or Close

    Bankruptcy provides two important things. The first is immediate relief from collection efforts by creditors. This is called the “Stay.” Once the petition is filed, ALL creditors must IMMEDIATELY CEASE all efforts to collect from you including wage garnishments, phone calls, foreclosure proceedings, to name a few. In addition to the Stay, the bankruptcy proceeding also provides a discharge of all unsecured debts (like credit cards) and all secured debts not retained (like debts on a home or car).

  • Who makes the final decision?Open or Close

    The Bankruptcy Trustee conducts the review of the bankruptcy petition, requests and reviews additional information, conducts the meeting of creditors and then makes a formal recommendation to the bankruptcy court, which then makes the final decision regarding the petition.

  • What is a Meeting of Creditors?Open or Close

    Approximately 30 to 45 days after your petition is filed, you will be required to attend meeting conducted by the Trustee. Creditors may also attend this meeting but rarely do so. In the meeting, the Trustee (and creditors) may ask about assets and liabilities. The meeting usually lasts no more than 10-20 minutes. We will attend the meeting with you.

  • What is the Chapter 7 Timeline?Open or Close

    It will normally take 30-45 days to prepare the bankruptcy petition for filing. Once it is filed with the court, the meeting of creditors is scheduled, usually 30-45 days from the filing date. Creditors have 60 days from the first meeting of creditors in which to object to a discharge of debts. The court will typically rule to approve, modify or deny the petition shortly after this 60 day period. The entire process normally taking five to six months from the time you first provide us your completed information until the court's final decision.

  • What is the Chapter 13 Timeline?Open or Close

    If you are filing under Chapter 13, the timeline will be extended. Your initial payment to the trustee under the repayment plan will begin 30 days after the petition is filed. Because of the additional review and large backlog of cases, it may take 12 months or longer to obtain confirmation of the official repayment plan. The repayment period will normally be three to five years. Once the plan is completed, the discharged can be entered.

  • What about my Tax Returns?Open or Close

    Under most circumstances, tax returns for the current year and all prior years must be completed and filed before the court will rule on the petition. These items are included under the Bankruptcy Document Checklist.

  • When do I have to surrender my house or car?Open or Close

    Technically, you must surrender any non-exempt assets when directed to do so by the court. Normally, you will identify which assets you intend to surrender and which will be retained in the bankruptcy petition. Usually, the assets you will not be keeping will be surrendered after the 341 meeting but this timeframe can be substantially longer in certain situations. Ask us about any specific questions you may have.

  • Why this answer has no question?Open or Close

    In a Chapter 13 filing, it may be possible to reduce the amount of a debt (“Cram Down”, for example with a car loan) or eliminate a secured debt all together (“Strip Off”, for example a 2nd mortgage on a home). There are a number of rules governing these options and certain procedures which have to be complied with. Let us know if you think this situation may apply to you and we can discuss the details further.

  • Will the debt forgiven in the bankruptcy be taxable to me (will I get a 1099)?Open or Close

    Whenever a creditor “forgives” debt, they may choose to characterize the amount forgiven as income to the debtor. While this does not normally occur in a bankruptcy, the creditor MAY issue a 1099 to the debtor showing the amount forgiven as income. If it does, you should seek advice from our firm or another experienced tax professional to insure you are not saddled with unnecessary tax liability.

  • What impact will the bankruptcy have on my credit? Open or Close

    All debts discharged in the bankruptcy will show “discharged in bankruptcy.” For example, if you surrender a residence, it will not show as a “foreclosure” on your credit history, the mortgage will simply show as “discharged in bankruptcy.” In addition, the outstanding balances for these debts will reflect as zero. Because your debts will be reduced, it's likely that your credit score will INCREASE after the bankruptcy (sometimes as much as 100 points). Note also that the bankruptcy will remain on your credit for up to ten years. Currently, it is not unusual for potential creditors to overlook a bankruptcy that was discharged more than 24-36 months previously.

  • Will I be liable for Home Owner Fees? Open or Close

    For individuals who live in neighborhoods with HOA fees, it is possible that the homeowner may STILL be liable for HOA fees even AFTER a bankruptcy is filed and the property is turned over to the mortgage company unless the property is deeded from the homeowner to a separate party. The simple way to solve the problem is for the homeowner to deed the property to the mortgage company that holds the debt on the house when the bankruptcy is filed. This prevents the homeowner from being liable for any HOA fees post-bankruptcy. Let us know if this circumstance may apply to you. Additional fees will apply.

Short Sale

  • What is a short sale? Open or Close

    A short sale in real estate occurs when the outstanding loans and liens against a property are greater than the proceeds from the sale of the home after all closing costs are paid. This occurs only when a homeowner meets the qualifications and the homeowner's lenders agree to allow a short sale. In the event of a short sale, a lender can often release you free and clear from your mortgages and fully forgive you of any deficiency. In some cases, sellers can qualify to receive $3,000 cash back for relocation expenses from the lender directly at closing.

  • Why do I need your help? Open or Close

    It's actually much more than just an understanding of real estate or the law that's important in these situations. You need trained and licensed professionals who understand your rights, the law related to your transaction, the applicable real estate ramifications as well as the financial and tax issues. That's a unique blend of skills and experience. We're fortunate to have professionals familiar with all of these areas whose sole focus is to get you relief.

  • How do I know I qualify for a short sale? Open or Close


    – Do you have a financial hardship? This can be anything from relocation, divorce, loss of income or job, major repairs needed without resources to make them, increased bills or increased living expenses.
    – Are you behind on your mortgage payments, about to be behind on mortgage payments or facing default or foreclosure?
    – Cannot sell your home due to a mortgage balance that is greater than your home value?
    – Your mortgage payment has depleted all of your savings?
    – Are you in a situation where you have to get your home sold?

  • How much does it cost me to list my home on the market? Open or Close

    Unlike a traditional sale, the lender pays all sales commissions at the time of short sale. There is no cost to a seller to hire a Realtor to list their home as a short sale. Be wary of Realtors who charge sellers a “Short Sale Negotiation Fee”. Realtors often hire professional negotiators as most Realtors do not want to put in the time or do not have the short sale knowledge required to negotiate a short sale. Equity Solutions Realty has a broker who will list your property and negotiate your short sale at no cost to you.

  • How long does the short sale process take? Open or Close

    The short sale timeline can vary depending on which lender we are working with and how many liens you have against your property. As a general rule of thumb; from listing the property on the market to closing can take anywhere from 2-8 months.

  • Why should I short sale rather than allow the property to foreclose? Open or Close

    A foreclosure can impact your credit far more than a short sale, especially in the long term. In fact, some banks don't report a short sale. Your credit could recover from a short sale in less than 2 years, whereas a foreclosure or bankruptcy can take 7-10 years. A short sale will likely lower your credit score by about 50-120 points. The hardest hit to your credit comes from missing mortgage payments rather than the actual short sale itself. Also, it is important to note that if your property forecloses, you are still responsible to pay all property taxes and HOA dues. In a short sale, the lender will often pay property taxes and HOA dues.

  • What if I have a foreclosure sale date scheduled?Open or Close

    Many lenders will offer to postpone the foreclosure sale date if a valid offer has been submitted to the lender for review. If a foreclosure date is scheduled, we work very hard to obtain an offer as quickly as possible and get it submitted to the bank. Lenders will often postpone the foreclosure sale date multiple times as long as there is an offer to purchase the home submitted from a potential buyer. A postponement can be requested from most lenders up to 7 days before the scheduled sale date.

  • What is the HAFA incentive program?Open or Close

    If a property is owner occupied at the time of a short sale and the sellers qualify financially, they can apply for the HAFA program. If approved, the sellers can receive up to $3,000 cash at closing and the bank automatically waives the banks right to pursue the sellers for the deficiency balance .

  • I need relief from my debts…is Bankruptcy my only option?Open or Close

    No! While bankruptcy is an option, it is not suited for every situation and may or may not be the right one for you in this situation. There are other ways of addressing debt that may be appropriate and may have less effect on your credit. Every situation is different. In our free initial consultation, we'll be able to help you assess your situation and determine what solution makes the most sense in your circumstances.

  • So what are my options?Open or Close

    If mortgage debt is the problem, and keeping the home is not your objective, then a short sale may be the best option. Other possibilities include a foreclosure or a deed in lieu of foreclosure and bankruptcy.

    Short Sale - In a situation where it doesn't make sense to keep the home, we can often arrange for the lenders to accept less than what's owed on the outstanding notes in exchange for a full release.

    Other Solutions - In some situations, a negotiated debt settlement may be a better approach, in other cases bankruptcy or some other type of legal approach will serve your objectives best. The initial consultation with an attorney will assist in making this determination.

  • What about all the calls from creditors and collection agencies?Open or Close

    Nothing can be more frustrating and debilitating than constant calls from creditors demanding payment and information. And one misstep with either and the opportunity to adjust the obligation could be lost. Two very good reasons why one of the first steps we take is to issue a “cease & desist” order on your behalf along with a “redirection notice” which provides the creditor our contact information. From the time you retain us, we handle all contact with the lender. No more harassing phone calls at home, work or on your cell phone. No more explaining why you can't pay or having to listen to all the threats of legal action. We know the law, we know both their rights and yours and we address the problem systematically within the realities of your financial circumstances

  • Can I do a Short Sale or Short Refinance without your help? Open or Close

    While it is not against bank policy, if you were to call and ask the bank to negotiate a short sale or short refinance, their first advice will usually be to get a professional to represent you. The risk of ending up with a foreclosure instead of a short sale is significant and even if the transaction is approved, you may still end up with carry-over debt if the documents are not properly drawn on a short sale or refinance. These are just a few of the potential pitfalls if a professional is not involved. We strongly recommend you use our firm or another firm with similar capabilities to represent your interests on these types of transactions.

  • What about the tax ramifications? Open or Close

    Whenever a debt is forgiven, the lender writes off the loss and may send the borrower a 1099-C reporting the write-off as income. Whether or not you end up with a tax liability will depend on your specific circumstances but in many cases there will not be taxable income resulting from forgiven debt if handled properly. If you don't already have a tax professional who is trained in handling these types of tax matters, please let us know. In any event you should consult a tax professional regarding your specific circumstances. Check out a brief video on the tax ramifications of a short sale here. http://www.youtube.com/watch?v=6901YZhzqII

  • This answer is whithout question?!Open or Close

    The law of every state is different. For example, Arizona law allows lenders to pursue a deficiency in some situations. However, in the case of a residential property (single family or double family residence) which is 2.5 acres or smaller the law specifically prohibits the lender from pursuing a deficiency after foreclosure in most cases. If the property meets the criteria of the statute, it is very unlikely that any deficiency will be sought. Note that Arizona's “anti-deficiency' statutes do not cover raw land or short sales and that every circumstance is different. Because of the application of the anti-deficiency statute in a foreclosure proceeding, many banks are willing to completely release any debt in exchange for a short sale as well. California also has anti-deficiency statutes that apply in many cases. Other state laws differ and may apply to your situation.

  • How will these options affect my credit score?Open or Close

    Your credit report is made up of information and a FICO score. The score is primarily based on the most recent 24 months of activity with older items getting far less weight. In addition, specific events like a bankruptcy, foreclosure or charge-off will be reported on your report. In most cases, bankruptcies will remain on your report for 10 years (7 in some cases) and foreclosures and charge-offs for 7 years. By contrast, if you miss several payments and then we are able to successfully negotiate a short sale, these “late's” will have a negative effect on your credit for the first 6-12 months and will then begin to dissipate. Your credit history will reference a “short sale.” In some situations, we've successfully negotiated short sales without the borrower being late at all so there was no negative report on their credit. Remember that every situation is different and it is likely there will be some negative effect but the sooner you contact us, the sooner those issues can be addressed and the sooner the credit can be mended.

  • Do you guarantee the results?Open or Close

    We have confidence in our abilities and recognize that you can terminate our services at any time. However, we cannot guarantee a final result in any debt related matter. The decisions controlling the outcome are made by the lender and associated investors, not us. Anyone who suggests they can guarantee results other than the lender/investor is probably not being honest.

  • Why would the bank accept a short-sale?Open or Close

    Currently, there is an over abundance of properties for sale. Basic economics say that when supply exceeds demand, the price goes down. That's why house prices are currently falling in most areas…there are more homes for sale than people who want to buy them. To make this situation worse, lenders are not very good at selling properties and the foreclosure market is extremely competitive. A home that might sell for $100,000 on the regular real estate market would sell for only 70% of this in a foreclosure sale. Then the fees to effect the foreclosure are deducted (usually $30,000 to $40,000 per property) so it's not uncommon for a lender to only net 45% to 50% of the sale price on a foreclosed property. This was not a problem when homes were increasing in value but now that many homes are worth less than the debt that's currently owed on them; the lender is faced with difficult choices. The cost to the lender for a short sale is far less than a foreclosure and the price is usually higher so in most cases, a short sale will net the bank more than any other solution.

  • What are my rights if I'm contacted by a debt collector? Open or Close

    The Federal government and many states have laws governing the collection of debts. The Fair Debt Collection Practices Act, a federal law, outlines specific rights you have, specific rules debt collectors must follow and specific penalties if they don't. The Federal Trade Commission has provided very helpful information regarding the law at: http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre18.pdf. Once you have retained us, you should notify any debt collector that they have received written instruction, signed by you, to not contact and to direct all communication to us. You should also instruct them that if they fail to follow those written instructions, they will be in violation of the Fair Debt Collection Practices Act and that the violation will be reported to the state attorney general and the Federal Trade Commission. Make sure you request the individual's name, company and phone number and circumstances of the call to aid in making the report. You do not need to discuss the debt with them unless you wish to (please see below). If you have retained us and are still receiving calls, please notify us immediately.

  • Can I still contact the bank after I've retained your services? Open or Close

    Yes. You are the borrower and are entitled to contact the lender any time you wish. However, experience has proven that doing so often creates confusion and delay, may jeopardize the desired result and may also increase the cost of the engagement with our Firm. In general, lenders are overwhelmed with the large volume of requests for assistance. As a result, staff is often under-trained and inexperienced. In addition, communication systems used by the lender are disjointed and inconsistent. In our interaction with the lender, it is not uncommon to be told different answers to the same question. For this reason, we routinely verify the information in an effort to insure accuracy before passing it on to you. If you are also calling the lender, it is likely that you will be given information which is different than what we may have been told. In addition, when you speak to the lender directly, you may inadvertently provide them with information which causes them to reject the proposal we have submitted. For all of these reasons, it usually makes sense to let us handle the interaction with the lender.

  • How much does it cost to retain your services? Open or Close

    In most cases the answer is NOTHING. We pursue our fees from the sale proceeds so you don't have to pay anything. If you request other legal or tax services not directly related to the Short Sale, you will have to pay for these additional services.

Asset Protection

Debt Settlement

  • If I use your Firm to settle my debts, will I still have to take the collection calls? Open or Close

    No. We'll redirect the creditors to our office. And by federal law, they're required to comply with the re-direction demand. In cases where the creditor does not comply, we take stronger action to assert your rights. Once you've retained us, there is no value in you having to field the harassing calls and we need to speak to the creditor so they're calling us helps us move your case along.

  • Is it really possible to settle my debts for less than I owe?Open or Close

    Yes. Settlements of 15% to 50% of the balance owed are very common.

  • Can all debts be settled?Open or Close

    In theory, Yes. In practice, No. Most mortgage debt and credit card debt can be settled. Most debts that go to a judgment can also be settled. Even tax debts can be negotiated. Student loan debts are much more challenging to settle. And auto lenders have been the least cooperative when the debtor is still in possession of the car.

  • I have a 2nd mortgage on my house - can you help me settle that? Open or Close

    Possibly. Some 2nd mortgage lenders are very willing to settle debts. Others are very hesitant to. If you have a 2nd mortgage, give us a call and we'll help you review the options.

  • Does debt settlement hurt my credit? Open or Close

    Yes. But the real question is about how much or little, compared to your other options. There are many things that can impact your credit. Missing payments on debt is one of them. But the impact of a charge-off or judgment is far greater.

  • What happens to my credit when the debt is settled? Open or Close

    Depending on the lender/creditor, the debt is often listed as “settled in full for less than the amount owed.” This is a “derogatory” entry on your credit history. In addition, you've likely missed payments on the debt and these will also impact your credit score.

  • How long does it take to settle my debts? Open or Close

    That's a really hard question to in general because it's highly dependent on who the creditor or collector is. Some are very motivated to get debts resolved. Others seem to be highly resistant to settlement until the debt has “seasoned” for 3-4 months. It's not uncommon for debts to be settled in 3-4 months but you should expect it to take whatever time is necessary if you want the best result.

  • Isn't it against the law for a debt collector to call my family and employer? Open or Close

    Yes. The Fair Debt Collections Practices Act provides you as a debtor with certain rights. This include protections for your privacy. When a collection calls your home, parents, place of work, etc., it's very possible they're breaking the law unless they are VERY careful. And if they do break the law, you can pursue an action against them if you want, or file a complaint against them.

  • Is it legal for the debt collector to call me all day and at work? Open or Close

    No. The Fair Debt Collections Practices Act gives you the right to tell the creditor how and when it is permissible to contact you. So long as you provide a reasonable time and means then they must comply.

  • How much does debt settlement cost? Open or Close

    Like the time involved, the cost is variable. Many debts can be settled for less than $1,000 to $2,000 in legal fees. Other debts take much longer and incur higher costs.

  • Is there any way to fix my credit afterwards? Open or Close

    Absolutely. The Fair Credit Reporting Act, another federal law, provides you with certain rights and makes certain requirements of the credit reporting agencies to ensure your credit record is accurate. And you'd be surprised at the percentage that aren't. Recent estimates place the inaccuracies as high as 60%. If you're ready to start improving your credit, give us a call and we'll help you identify the steps to take.