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Clean Up Your Debts Through Bankruptcy

Sun, 17 Apr 2011 23:28:33 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Bankruptcy is a legal process that permits the debtors who are unable to cope up their debts to develop a payment plan over a period of time and ensures fair distribution of debtor’s assets between creditors. We could not deny the fact that bankruptcy has its negative implications. Filing for bankruptcy requires a lot of process and forms to be filled up that could really be intimidating. Expect loss of your properties, credit cards and investments. Considering these negative consequences, it could really make you feel like it’s the end of the world but put in mind that your life doesn’t end here. In this kind of situation, it would be best to consult a bankruptcy attorney to further enlighten you. Look for an experienced bankruptcy attorney with highest ethics and has a successful record.

In United States, the two common ways to file a bankruptcy are chapter 7 and chapter 13. Chapter 7 also known as the “Straight Bankruptcy” involves a trustee who will handle the distribution of the debtor’s non-exempt property to the creditors in accordance with the Bankruptcy Code. Debtors filing for chapter 7 are usually released from personal liability after three to four months. Chapter 13 bankruptcy also called as the “Reorganization Bankruptcy” allows the debtor to keep non exempt property and appeal a payment plan for three to five years. Chapter 13 is suitable for debtors who have a sufficient and regular source of income.

Despite of the negative consequences of filing bankruptcy, it actually offers a great help when your debt situation is at its worst state. It can eliminate unsecured debts such as credit card balance, unsecured personal loans, medical bills and any kind of debts where the creditor does not have security interest on your property. Filing for Bankruptcy would also halt creditor harassment such as non stop letters and phone calls.

Making decisions for filing bankruptcy is not that easy and it could even lead you to emotional stress and frustration. It would be better to get as much information about it to have a wide range and complete understanding of the situation. Bankruptcy Law’s main objective is to give the debtor a chance to start over and enjoy a debt free life. If you are still uncertain and still having questions running through you mind, consult a bankruptcy attorney to guide and give you options on the right thing to do.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Do I Need Patent Protection To Establish My Rights To A Great Idea Or Design? Posted By : Abigail Franks

Sun, 17 Apr 2011 17:42:00 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

One of the first things to do when you have an idea is to write it down. Documentation is the most important step you can make to in securing future rights to your idea. The documentation needs to be in a tight bound or engineering type notebook. These are like a basic school notebook that pages cannot be added. It’s also a good idea to get a notebook that it’s also difficult and noticeable if any pages are removed.

The notebook should then be your diary about your product or idea. Who you talk to, what you do to develop it. Rough drawings etc. The idea behind this is to establish “first” or “primary” claim on the idea. By having all the documentation and scribbles dated and written out, it becomes much easier to establish when the idea was first conceived and by whom.

So you have the product designs and idea all written out. Now it’s time to decide if the time, expense and trouble of getting a patent is worth it. There are three basic factors that drive the decision to apply for a patent.

1. Market potential. Is your product the next big thing that will literally be worth millions if not billions of dollars? If the answer is “YES” then it’s worth the effort to obtain a patent. Unfortunately , most decisions are that clearly defined. Many products with limited or local market potential can make the ambitious entrepreneur wealthy but may not be worth the effort to obtain patent protection. Limited market appeal doesn’t mean a product isn’t worth the effort to develop. Somewhere between these two extremes it becomes increasingly important to obtain patent ownership rights.

2. Selling the idea to another company. When companies buy ideas, designs, etc, they’re really purchasing intellectual property rights. If you haven’t established ownership or those rights however, anyone and everyone can take your great product idea and call it their own. It would then be up to you to establish your first claim of ownership. A patent establishes your position as owner.

3. Dollar Value. The higher the value of the product, the more it should be considered as a patent candidate.

The patent process is not that difficult to navigate but it may be a good idea to consider enlisting some assistance. You can get additional information through the United States Patent and Trademark Office. They’re online at www.uspto.gov/web/offices/pac/design/toc.html. A good patent attorney could also be considered to handle the paperwork and application filings on your behalf with the federal government.

Once a patent is approved and issued, you have established ownership rights to your idea or product. This doesn’t mean that you are protected however. Once obtained, it’s then up to YOU to defend your rights through the court system should anyone use your design ideas without your permission. This can be a very expensive proposition and is the reason why the three points above should be considered before applying for a patent.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Why To File a Trademark Opposition: Understanding the Differences Between the TTAB and Court

Sun, 17 Apr 2011 17:41:36 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

One who believes she will be damaged by a registration can file a trademark opposition with the Trademark Trial and Appeal Board (TTAB) of the USPTO. This must be done within the 30-day Opposition Period, although extensions can be sought. Before doing so, it is important to recognize the differences between a TTAB proceeding and litigation in a federal district court.

Although a TTAB proceeding can take less time, oftentimes less than a year, and cost less than litigation, they both are adversarial processes that require an understanding of the Federal Rules of Civil Procedure and trademark law.
A TTAB proceeding is typically easier to file and to dismiss than a court action, without the risk of a requirement of consent or payment of costs and/or fees.
A trademark opposition is filed with the TTAB with any appeal going to the Court of Appeals for the Federal Circuit. This is the only way to be heard by the Court of Appeals for the Federal Circuit, which contains the most precedent related to TTAB matters. Any appeal from a decision in a federal district court will go to the controlling Court of Appeals (e.g. Sixth Circuit Court of Appeals).
While a favorable TTAB ruling in a trademark opposition will preclude the application from becoming a registered trademark, that ruling is not necessarily binding on a federal district court. Moreover, only a court of law can order injunctive or financial relief (i.e. stop the infringing use or award damages).
Leverage in a TTAB proceeding is limited to a petition to cancel the trademark registration relied upon, if any, as part of the opposition. In a federal court action, various counterclaims are available that would make the originally named defendant a plaintiff. In addition, additional third parties could become part of the litigation.

As you can see, there are numerous considerations that have to be made in choosing a TTAB trademark proceeding rather than litigation.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Property Barristers and Planning Laws

Sun, 17 Apr 2011 17:41:22 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Property barristers are commonly called in to work with planning law. In fact, although barristers specializing in property are a subset of the barrister profession in general, there are also property barristers who specialize in planning. These barristers are loosely known as planning barristers.

There are famous ‘planning chambers’, such as Landmark Chambers, who employ a number of well-trained barristers who specialize in planning law. These planning chambers typically have between 10 and 20 barristers, which specialize in planning law. The higher profile the planning chamber, the more likely they have dealt with high profile cases in the past. This, in turn, usually means that the highest profile chambers will be employed to deal with the largest planning law cases in the country.

Large planning law cases that a property barrister may be called in to deal with could for example include the building or change of a football stadium or other large sporting arena. They may be required to fight the case for the developer who wants to expand. They may for example, be called to examine and make sense of the planning laws regarding nationwide or even international rail networks. Large constructions like airports require a huge deal of planning, and property barristers skilled in this type of planning law will be used to deal with it.

Not all law cases related to planning are huge though. Property barristers can appear for a client at a planning hearing or a planning enquiry, or even a parliamentary committee.

Barristers specializing in property can be employed to simply give advice, albeit expensive advice, on planning laws and how they could affect a business. Property barristers cover a wide range of laws such as those that govern how businesses effect the environment or the countryside or community. They can deal with planning appeals and give advice on how a business must deal with its waste.

Some property law covers items such as nature reserves, listed buildings and conservation zones. When new plans are made for buildings and features within or near these elements, then these laws can get very complex, and will include a healthy number of bodies who have a vested interest. Without adequate representation by a property barrister, then the project will never get off the ground, as the client will have no idea what is expected of them to keep within the law and get the permits they require to begin construction.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Do I Need Patent Protection To Establish My Rights To A Great Idea Or Design? Posted By : Abigail Franks

Fri, 15 Apr 2011 17:41:38 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

3. Dollar Value. The higher the value of the product, the more it should be considered as a patent candidate.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Why To File a Trademark Opposition: Understanding the Differences Between the TTAB and Court

Fri, 15 Apr 2011 17:41:25 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Although a TTAB proceeding can take less time, oftentimes less than a year, and cost less than litigation, they both are adversarial processes that require an understanding of the Federal Rules of Civil Procedure and trademark law.
A TTAB proceeding is typically easier to file and to dismiss than a court action, without the risk of a requirement of consent or payment of costs and/or fees.
A trademark opposition is filed with the TTAB with any appeal going to the Court of Appeals for the Federal Circuit. This is the only way to be heard by the Court of Appeals for the Federal Circuit, which contains the most precedent related to TTAB matters. Any appeal from a decision in a federal district court will go to the controlling Court of Appeals (e.g. Sixth Circuit Court of Appeals).
While a favorable TTAB ruling in a trademark opposition will preclude the application from becoming a registered trademark, that ruling is not necessarily binding on a federal district court. Moreover, only a court of law can order injunctive or financial relief (i.e. stop the infringing use or award damages).
Leverage in a TTAB proceeding is limited to a petition to cancel the trademark registration relied upon, if any, as part of the opposition. In a federal court action, various counterclaims are available that would make the originally named defendant a plaintiff. In addition, additional third parties could become part of the litigation.

As you can see, there are numerous considerations that have to be made in choosing a TTAB trademark proceeding rather than litigation.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Property Barristers and Planning Laws

Fri, 15 Apr 2011 17:41:12 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Not all law cases related to planning are huge though. Property barristers can appear for a client at a planning hearing or a planning enquiry, or even a parliamentary committee.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Clean Up Your Debts Through Bankruptcy

Fri, 15 Apr 2011 00:56:17 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Do I Need Patent Protection To Establish My Rights To A Great Idea Or Design? Posted By : Abigail Franks

Thu, 14 Apr 2011 17:41:34 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

3. Dollar Value. The higher the value of the product, the more it should be considered as a patent candidate.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Why To File a Trademark Opposition: Understanding the Differences Between the TTAB and Court

Thu, 14 Apr 2011 17:41:23 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Although a TTAB proceeding can take less time, oftentimes less than a year, and cost less than litigation, they both are adversarial processes that require an understanding of the Federal Rules of Civil Procedure and trademark law.
A TTAB proceeding is typically easier to file and to dismiss than a court action, without the risk of a requirement of consent or payment of costs and/or fees.
A trademark opposition is filed with the TTAB with any appeal going to the Court of Appeals for the Federal Circuit. This is the only way to be heard by the Court of Appeals for the Federal Circuit, which contains the most precedent related to TTAB matters. Any appeal from a decision in a federal district court will go to the controlling Court of Appeals (e.g. Sixth Circuit Court of Appeals).
While a favorable TTAB ruling in a trademark opposition will preclude the application from becoming a registered trademark, that ruling is not necessarily binding on a federal district court. Moreover, only a court of law can order injunctive or financial relief (i.e. stop the infringing use or award damages).
Leverage in a TTAB proceeding is limited to a petition to cancel the trademark registration relied upon, if any, as part of the opposition. In a federal court action, various counterclaims are available that would make the originally named defendant a plaintiff. In addition, additional third parties could become part of the litigation.

As you can see, there are numerous considerations that have to be made in choosing a TTAB trademark proceeding rather than litigation.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Asset Protection in Texas – With the Texas Series LLC at Its Core

Thu, 14 Apr 2011 17:41:09 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Keys to Asset Protection

Principles of Asset Protection

advance, preemptive planning to deter lawsuits and creditor action

creating legal barriers to personal liability

separating assets from activities (contracts, leases, etc.)

maximizing anonymity in the public records

utilizing homestead and income protections afforded by the Texas Constitution and Property Code

asset spreading/compartmentalization

exhausting your opponent’s resolve and depleting his resources

Recommended Tools of Asset Protection for Texas

LLC to hold assets (Texas Series LLC or Nevada Series LLC)

shell management company (a separate, pass-through Texas entity)

anonymous land trust

assumed name certificates (DBA’s)

attorney-client privilege

more exotic devices, including offshore entities, are seldom necessary

Introduction

Texas has an established history of protecting debtors. This is a summary of the how the Texas Property Code, the Texas Business Organizations Code, and the Texas Constitution make it possible for individuals and businesses to shield income and assets (particularly equity in real property). Together, these are among the most favorable asset protection laws in the United States. Our core recommended structure involves two LLCs – one to hold assets and the other to manage them. The “holding company” may either be a Texas Series LLC or a Nevada Series LLC. When properly structured, an asset protection strategy will deter the filing and pursuit of lawsuits and also make it difficult for a creditor to collect on a judgment.

Homestead Protections for Individuals in Texas

Texas offers unique homestead protections for individuals that should be integrated into any asset protection plan. These protections are contained in Art. XVI, Sec. 50 of the Texas Constitution and in Chapters 41 and 42 of the Texas Property Code. They apply to both income and assets, and they have long made Texas a haven for debtors. In other states, a judgment can be put you on the street, but not in Texas. If a lawsuit is anticipated, or if a judgment creditor is expected to attempt collection, then it is wise to review and maximize these protections.

Sec. 28 of the Constitution prohibits garnishment of wages, which protects the income of a person who receives a salary or wages. As to assets, the homestead of a family or single adult is protected from forced sale for purposes of paying debts and judgments except in cases of purchase money, ad valorem taxes, owelty of partition (divorce), home improvement loans, home equity loans, and reverse mortgages. No matter how much the home is worth, an ordinary judgment creditor cannot force its sale. An attempt by such a creditor to place or enforce a lien against the homestead can be defeated using the procedure in Texas Property Code Sec. 53.160. See our companion article, Lien Removal in Texas.

The Texas Property Code goes into more detail, specifically listing the amount and types of other exempt property, including a vehicle for each licensed driver in the household; home furnishings; and the debtor’s IRA or 401(k). In keeping with Texas’ frontier spirit, you can even keep two horses if you wish.

The Property Code further provides in Sec. 41.001(5)(c) that “The homestead claimant’s proceeds of a sale of a homestead are not subject to seizure for a creditor’s claim for six months after the date of sale.” This expressly permits homestead protections to be rolled over from one homestead to the next, notwithstanding the preference on the part of title companies to collect judgments upon sale of the homestead. Taylor v. Mosty Bros. Nursery, Inc., 777 S.W.2d 568, 570 (Tex.App. – San Antonio 1989, no writ).

The Texas Constitution and the Property Code provide an excellent opportunity for individuals (not corporations, LLC’s, or partnerships) to engage in asset protection. Essentially, this means converting non-exempt assets (cash, for instance, or investment real estate) into exempt assets. As an example, one might consider paying off the homestead or the primary vehicles. The conversion process can be tricky. It is best accomplished with the guidance of an attorney knowledgeable in this field. Our companion article, Homestead Protections in Texas, offers more detail on this subject.

Going Beyond the Statutory Homestead Protections: Forming an LLC

Clearly, if one owns more than one’s home or has investment property, the statutory protections are not enough. The next level of protection is achieved by forming a Texas Series LLC which accomplishes two critical goals: it creates a liability shield for the protection of member-owners; and it creates individual “series” or compartments which, when properly implemented, insulate each series from the liabilities associated with the other series (details below). The benefits? Simplicity and economy.

All LLC documents – beginning with the Certificate of Formation (Texas) or Articles of Organization (Nevada) and continuing with the company agreement – should be drafted with an eye toward asset protection. It is critical that company documents discourage creditors from attempting to seek control of any member’s interest. Remember: part of asset protection is deterrence. For instance, the company agreement should provide that any creditor succeeding to a membership interest by means of assignment, collection action, or execution on a judgment will not be able to vote that interest; not be able to serve as a manager or officer; not be able to direct that assets of the company be sold; and not be able to alter or reduce the company’s ability to do business. Who would want to spend time and money suing a company when they know in advance that even victory would be worthless? For more detail, read our companion article The Texas Series LLC.

Doing Business as an LLC

One of the first goals is transfer investment property into the company. In the case of real estate, this is done by means of a general or special warranty deed. Are deed of trust due-on-sale clauses a problem? Almost never, in spite of what your lender may tell you. Lenders have their plates full with monetary defaults and generally do not accelerate a performing a loan if the property is transferred to the borrower’s personal company. In fact, this author has never seen that happen. See our companion article, Due-on-Sale Clauses in Texas.

Tenants, creditors, vendors, and the public should be instructed that they are doing business with the LLC. They should invoice the LLC and make payments to the LLC. When a W-9 is required, it should contain the LLC’s tax identification number. There is an old rule of thumb that people tend to sue the person or entity they write checks to… so ideally, your personal name, address, or social security number should never appear anywhere on any paperwork or documents executed with third parties.

Once a company is formed, it must be maintained. There are minimum actions and formalities that must be observed in order to order to preserve the LLC’s liability barrier. These include proper organizational documents; issuing membership shares; holding annual meetings; obtaining a TIN number and filing tax returns; having a company bank account; and the like. Failure to do this sort of routine maintenance is a common mistake. It can make your company vulnerable to a “piercing the veil” suit and therefore be fatal to your asset protection plan.

Pre-Suit Asset Protection Strategies

Asset protection strategies fall into two groups – strategies implemented in advance of collection action and suit by a creditor; and strategies that can be put into effect afterward. It is by far preferable to plan ahead and be prepared, since the range of pre-suit alternatives is much greater. After suit is filed, depending on the circumstances, options are reduced by laws relating to “fraudulent transfers” – moving assets around to defeat the legitimate claims of creditors – and courts are on the lookout for these. After suit is filed, the Texas defendant may be limited to converting assets to homestead-exempt items (one’s primary residence, cars, etc.), moving depository accounts into cash and money orders (USPS money orders are recommended), and pre-paying certain key items (taxes, attorney’s fees, and the like which are very unlikely to be questioned as fraudulent).

Post-Suit Strategies

Once litigation is commenced, your actions will be subject to close scrutiny by the plaintiff and his attorney. Obvious attempts to maneuver and manipulate your assets will likely be detected. This is so because the discovery process (including interrogatories and requests for production of documents) is available to creditors to inquire into your transactions, and the scope of this process can be wide indeed. Failure to fully respond is grounds for contempt – although “fully respond” should never be interpreted as supplying more information than is absolutely necessary. Creditors may do research on you – particularly if the debt is very substantial – but most of the time they have only the information that you give them in pre and post-judgment discovery.

The most pernicious discovery occurs post-judgment, since creditors can then go beyond the facts of the case and compel disclosure of sources of income and the location of assets – even assets that are legally exempt and cannot be touched. This can be a headache since creditors may nonetheless attempt to go after the exempt assets, forcing a debtor to seek protection from the court. You can see why it is important that your attorney make a creditor fight vigorously for every bit of information that is provided in responses to discovery.

The usefulness of post-collection asset protection strategies are also limited by fraudulent transfer rules that allow courts to reach back up to two years (these rules apply in many foreign jurisdictions as well). Fraudulent transfers are generally indicated by so-called “badges of fraud,” including transfers to a family member; whether or not suit was threatened before it was filed; whether the transfer was of substantially all of the person’s assets; whether assets have been removed, undisclosed, or concealed; whether there was equivalent consideration for the transfer; and whether or not, after the transfer, the transferor became insolvent as a result (e.g., made his cash disappear all at once).

Recommended Two-Company Structure

An investor should consider setting up a management or operating company that is unaffiliated with the asset-holding LLC and which will serve as the front line of defense against tenants, creditors, and plaintiff’s attorneys. This entity should be an LLC (a traditional LLC or a corporation will serve the purpose) that is basically a shell or pass-through entity without assets. Many people already have an LLC or corporation and wonder what to do with it now that we have a series LLC available in Texas. The management company is an excellent option.

The management company should own no substantial amount of real or personal property – it should lease everything, including vehicles. It should also hire and pay employees. The public should do business with the management company and never even be aware of true underlying ownership or the location of assets – which are of course held in the series LLC.

Why this structure? In addition to its management duties, the role of the management company is to serve as a target that is deliberately put “out there” to draw fire away from the owners and their assets. If anyone sues and obtains a judgment against the management company, it will be uncollectible.

What is to keep the plaintiff from suing the holding company? The legal doctrine of “privity.” Since the holding company (the Texas Series LLC) has signed no leases or contracts or done any direct business with anyone, no legal action can be successfully maintained against it.

Levels of Asset Protection

LEVEL 1:Basic Asset Protection for Investors (the Texas Series LLC)

(1) form a Texas Series LLC to own and manage investment properties and businesses in separate “series” or compartments, establishing a barrier against personal liability in the event of lawsuits;

(2) file an assumed name certificate (DBA) for this Texas company and utilize the DBA in business dealings;

(3) establish a checking account for the company under its DBA’s and have

(4) checks, letterhead, cards, etc. printed that way;

(5) transfer properties held in personal names into individual series of the holding company (Series A, Series B, etc.) using properly-worded general warranty deeds;

(6) separate homestead and other creditor-exempt items from investments; reduce debt on these items in order to maximize protections afforded by the Property Code and Texas Constitution;

(7) form a living trust for the homestead to avoid probate, transfer the home into it, and then execute a “pour over” will to transfer other assets to the trust upon your death, thereby eliminating legal hassles for your heirs.

LEVEL 2: Two-Company Structure (the “Texas Two Step”)

(1) establish a Texas Series LLC to own and hold (but not manage) investment properties and businesses (the “holding company”);

(2) form a separate Texas LLC to act as a “shell” management company (which owns no significant assets) for dealings with tenants, vendors, contractors, and the public – income passes through to the holding company as consulting fees;

(3) file assumed name certificates (DBA’s) for the holding company and for the management company and utilize these names;

(4) establish checking accounts for the each company under their respective DBA’s and have checks, letterhead, cards, etc. printed that way;

(5) transfer properties held in personal names into individual series of the holding company (Series A, Series B, etc.) using properly-worded general warranty deeds;

(6) separate homestead and other creditor-exempt items from investments; reduce debt on these items in order to maximize protections afforded by the Property Code and Texas Constitution;

LEVEL 3: Texas-Nevada Combination (the “Two-State Solution”)

(1) establish a Nevada Series LLC to own and hold (but not manage) investment properties and businesses (the “holding company”) achieving a measure of distance and anonymity from Texas plaintiffs;

(2) form a separate Texas LLC to act as a “shell” management company (owning no significant assets) for dealings in Texas with tenants, vendors, contractors, and the public – income passes through to the Nevada holding company as consulting fees;

(3) file assumed name certificates (DBA’s) for the holding company and for the management company and utilize these names;

(4) establish checking accounts for the each company under their respective DBA’s and have checks, letterhead, cards, etc. printed that way;

(5) transfer properties held in personal names into individual series of the Nevada holding company (Series A, Series B, etc.) using properly-worded general warranty deeds;

(6) separate homestead and other creditor-exempt items from investments; reduce debt on these items in order to maximize protections afforded by the Property Code and Texas Constitution;

Role of Trusts

Trusts come in all shapes and sizes – do not be fooled, there is no “standard form” that is good for all purposes in all states.

An appropriately drafted trust can be useful because it can provide:

(1) anonymity, since underlying ownership need not be revealed in the deed of property into the trust;

(2) ease of transferability, since beneficial interests can be privately assigned without necessity for recording a deed or other instrument; and

(3) probate avoidance, since the beneficiaries acquire their interest automatically without probate proceedings or the intervention of a court.

Note, however, that a trust does not have a liability barrier as does an LLC – so trusts standing alone are insufficient for asset protection. Trusts are merely one tool in the toolbox.

How do an LLC and trust work together? Once the LLC is established, it can choose to transfer its investment properties to an “anonymity trust” which indicates nothing of record about real underlying ownership. Example: title to property is held in the name of “Main Street Trust.” It is a myth that one must even name the trustee in the deed, since county clerks gladly record such deeds. Anyone seeking to know who the principals are and what assets they may have has their work cut out for them.

Note that under Texas law one must actually create a written trust agreement for this strategy to work. Also, a title company will want to see a copy of the trust before transferring title out of the trust to a new buyer. Additionally, courts are likely to ignore the existence of an alleged trust that has no written agreement behind it.

Apart from investments trusts, there are also living trusts (or inter vivos trusts) which are a valuable probate-avoidance device for the homestead and should be considered by everyone as part of the overall asset protection/probate avoidance structure. Anyone who has probated an estate is familiar with the procedural nightmare that occurs when dealing with attorneys and judges who will happily reduce the estate “castle” to rubble.

Do not be deceived into purchasing so-called standard trusts off the internet. Texas has very particular trust laws – the Texas Trust Act is part of the Property Code. Consult a Texas attorney experienced in trusts to be certain that your trust will not only be valid in Texas but will accomplish what you want it to do.

Anonymity

Anonymity is an important aspect of asset protection. An LLC can provide a certain measure of anonymity depending on the amount of information that is furnished to the Secretary of State when the initial documents (the “Certificate of Formation”) is filed and when the annual public information report is filed. Additional anonymity tools include use of land trusts, which should not disclose any personal names in the public records (and that includes the name of the trustee); use of assumed name certificates or “DBA’s;” and use of an attorney as registered agent or trustee who has the power to invoke the attorney-client privilege. The goal should be to achieve maximum anonymity combined with the liability barrier created by the series LLC. All of this creates legal, practical, and psychological obstacles to a potential plaintiff.

A word about the company’s registered address: some people go to the trouble of forming an LLC but then list their home as the registered address. This hardly enhances anonymity, nor does it prevent a constable from knocking at your door at 5:30 a.m. to serve a lawsuit. A physical address (not a box) is required, since the constable cannot serve a PO Box. Either use your office address, if you have a physical office; use your attorney as registered agent of the company ($250 annual charge); or go to a UPS store and obtain a box with a real street address and suite number (which cannot contain the words PMB, POB, Box, or a double suite number, which is an obvious indication of a box). Tenants, vendors, contractors, and the public at large should never have your homestead address.

The Role of Insurance

It is often asked if obtaining liability insurance alone is sufficient. The answer is a resounding “No.” Insurance is a passive measure. It is possible to be far more proactive. All legal experts recommend a sensible mix of insurance and asset protection. The principal reason is that insurance companies are in the business of collecting premiums and denying claims – thus every effort will be made by the company to exclude or avoid coverage in your case (particularly if the plaintiff alleges fraud, which is never covered). It may then become necessary to sue the insurance company.

Also, even if the insurer concedes coverage, extravagant claims made in lawsuits may (and often do) exceed available limits. Moreover, the existence of a sizable policy and umbrella may in and of itself encourage a lawsuit because it will be perceived by the plaintiff’s attorney as a tempting target! Nonetheless, having adequate insurance is a necessary evil.

Bankruptcy

Bankruptcy – Chapter 7 in particular – is the “nuclear” option in asset protection. Even so, rules against fraudulent transfers (called “preferences” in the Bankruptcy Code) apply in this area as well. The court can reach back up to a year. Also, false information in a bankruptcy petition may be investigated by the FBI; and of course bankruptcy does not discharge taxes (although the IRS may be more likely to work with you on a payment plan), child support obligations, student loans, and any items that a debtor fails to list on the petition.

The Bankruptcy Code allows a debtor to choose between the federal exemptions (i.e., list of exempt assets) or the state ones – and in Texas we always choose the state exemptions since they are so favorable. These are summarized later in this article.

By and large, filing bankruptcy is an admission that your previous asset protection strategies have failed. The bankruptcy trustee and the court assume control of your life. It is a last resort. This office does not handle bankruptcy – we recommend obtaining a board-certified lawyer in the field.

Lifestyle Considerations

Your lifestyle should be consistent with maintaining an effective asset protection strategy. In addition to all the other suggestions contained in this article relating to anonymity, creating a liability shield, maximizing protections under the Texas homestead laws, and the like, you should:

(1) avoid conspicuous consumption – living a notch below your means (at least outwardly) makes a less appealing target for plaintiffs and their attorneys;

(2) avoid personally guaranteeing any business debt or co-signing on others’ notes;

(3) carry health and term life insurance on yourself as well as “key man” term life insurance on your business partners;

(4) avoid all forms of debt that do not result in an income stream – this includes nearly all consumer debt which, after the thrill of that new Porsche dissipates, merely serves to keep you up at night;

(5) reduce all business arrangements – including those with family and friends (especially those with family and friends) – to a written agreement that contains an “exit strategy,” specifically including buy-sell provisions;

(6) diversify assets and investments;

(7) put approximately 10-15% of your assets into gold, cash, and other “doomsday” assets – the worst case scenario could actually happen. Honor the second amendment.

Other Asset Protection Devices

There are many other asset protection devices and entities that are beyond the scope of this introductory article. Included among them are:

Family Limited Partnerships There is much discussion about family limited partnerships (FLP’s) in states other than Texas. For Texas asset protection, this author prefers LLC’s and/or trusts. Texas FLP’s (like LLC’s) must be filed with the state and pertinent ownership information is revealed; also an in-state registered agent must be designated to receive service of process if the partnership is sued. So why not just form an LLC (especially a series LLC if assets are in real estate) and then move title to assets into a land trust? The result is superior liability protection and anonymity. Another drawback of the FLP is its concept of a “friendly lien” on the homestead, which is not workable in Texas.

Limited Partnerships with an LLC General Partner. These vehicles are more complex and expensive, usually used in larger commercial transactions, and are beyond the scope of these comments.

LegalZoom-Style Internet Services

Internet services allegedly provide “self-help legal services at your specific direction.” This is internet huckstering. All LLC’s are not created equal. Your goal should not be to merely “set up an LLC.” Your goal should be to establish a Texas Series LLC that includes sophisticated asset protection provisions beginning with the very first document that is filed. At best, internet services provide a “plain vanilla” company with no bells or whistles; there is no focused effort to maximize asset protection.

Here is what such services do not provide:

NO comprehensive advice on how to structure your business and investments so as to achieve an overall asset protection plan

NO attorney to serve as organizer, initial member, and/or registered agent in order to maximize your anonymity

NO sophisticated company agreement that deters creditors from taking control of your company

NO advice on how to move property into the LLC after it is formed

NO advice on how to use the LLC in conjunction with a land trust

NO advice on how to set up and arrange the LLC’s finances, including setting up LLC accounts, injecting capital, and/or loaning money to the LLC

NO advice on how to maintain the LLC liability barrier to prevent a plaintiff from “piercing the corporate veil”

NO free follow-up questions after the LLC is formed

Additionally, the documents provided by such services are simplistic and barely above the level of junk. This office spends a fair percentage of its time cleaning up the inadequacies in companies formed this way.

Conclusion: Asset Protection in the Real World

Absolute, true “bulletproof” asset protection is probably not achievable in the real world – even in Texas – in spite of claims made by internet and seminar “gurus” who have never spent time in a real court of law in front of a real judge. However, one can come close this ideal by using the correct structure. Asset protection is ultimately about preparation and advance planning that have the effect of deterring lawsuits and exhausting your opponent’s determination and resources. Deterrence has real value considering the number of frivolous and contingency-fee lawsuits that are filed each year in the U.S. If you can make it difficult to find your assets and make it unacceptably expensive and time-consuming for a plaintiff and his attorney to reach them, then your asset protection plan has done its job. Every dollar of cost that is imposed on a potential plaintiff or his attorney makes your income and assets incrementally more secure and makes it less likely that you will have to endure the living nightmare of a lawsuit and execution on a judgment.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Clean Up Your Debts Through Bankruptcy

Thu, 14 Apr 2011 12:46:25 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Do I Need Patent Protection To Establish My Rights To A Great Idea Or Design? Posted By : Abigail Franks

Wed, 13 Apr 2011 17:42:00 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

3. Dollar Value. The higher the value of the product, the more it should be considered as a patent candidate.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Why To File a Trademark Opposition: Understanding the Differences Between the TTAB and Court

Wed, 13 Apr 2011 17:41:41 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Although a TTAB proceeding can take less time, oftentimes less than a year, and cost less than litigation, they both are adversarial processes that require an understanding of the Federal Rules of Civil Procedure and trademark law.
A TTAB proceeding is typically easier to file and to dismiss than a court action, without the risk of a requirement of consent or payment of costs and/or fees.
A trademark opposition is filed with the TTAB with any appeal going to the Court of Appeals for the Federal Circuit. This is the only way to be heard by the Court of Appeals for the Federal Circuit, which contains the most precedent related to TTAB matters. Any appeal from a decision in a federal district court will go to the controlling Court of Appeals (e.g. Sixth Circuit Court of Appeals).
While a favorable TTAB ruling in a trademark opposition will preclude the application from becoming a registered trademark, that ruling is not necessarily binding on a federal district court. Moreover, only a court of law can order injunctive or financial relief (i.e. stop the infringing use or award damages).
Leverage in a TTAB proceeding is limited to a petition to cancel the trademark registration relied upon, if any, as part of the opposition. In a federal court action, various counterclaims are available that would make the originally named defendant a plaintiff. In addition, additional third parties could become part of the litigation.

As you can see, there are numerous considerations that have to be made in choosing a TTAB trademark proceeding rather than litigation.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Property Barristers and Planning Laws

Wed, 13 Apr 2011 17:41:09 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Not all law cases related to planning are huge though. Property barristers can appear for a client at a planning hearing or a planning enquiry, or even a parliamentary committee.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Clean Up Your Debts Through Bankruptcy

Wed, 13 Apr 2011 06:20:58 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Trends in Bankruptcy

Tue, 12 Apr 2011 19:11:45 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

While Americans continue to struggle with a depressed economy, people often seek ways to get out of burdensome debt. Bankruptcy allows people to stop creditors who may be harassing them with unwanted and threatening phone calls. Desperate homeowners trying to save their houses use bankruptcy as a way to stop the foreclosure process. When the unemployment rate rises, more people use their credit cards to make ends meet. This results in crushing unsecured debt that may take up to ten years or more to pay off. The interest and penalties keep accruing while consumers are barely able to make the monthly minimum payment. Many financial experts predict that the nation won’t see an economic turnaround anytime soon.

Harder to Discharge Debts

In 2005, the United States Congress passed the Bankruptcy Abuse Prevention Consumer Protection Act (BAPCPA). The primary purpose of this legislation was to make it more difficult to qualify for Chapter 7 bankruptcy, which allows individuals to discharge nearly all of their unsecured debts. There was a flurry of people who rushed to file their bankruptcy petition before the new laws went into effect.

The new bankruptcy law requires petitioners to pass a “means test” before they can qualify for a Chapter 7 case. If they are not eligible, they must file under Chapter 13 and formulate a repayment plan. If the debtor’s income is less than the median income for a household the same size, in the same geographic region, they qualify for Chapter 7. In California, the median annual income for a family of four is $79,477. Anyone who makes more than that would not be eligible for Chapter 7.

Bankruptcies Will Continue to Rise

The housing market has dropped to an all-time low and businesses still aren’t hiring. In February 2011, Google reportedly received over 75,000 job applications after announcing their plan to hire 6,000 new workers throughout the year. That’s a 15 percent increase from the previous record originally set back in 2007. Companies who are guilty of outsourcing jobs to foreign countries hit American workers hard in their efforts to find cheap labor. There is enormous competition for jobs and people with Master’s degrees are applying for positions well below their skill set and experience. Debt consolidation programs fail to help consumers actually get out of debt. They are still responsible for paying back their creditors, which doesn’t really provide financial relief. Debt settlement companies have been under fire recently for conducting scams bilking hard working Americans out of money while lying about the services they falsely promise to provide. The number of bankruptcies will continue to rise in 2011 as the jobless rate remains high and food costs continue upwards. Families are finding it harder to feed their families and they have stopped taking expensive vacations or purchasing luxury items.

Getting Advice From a Bankruptcy Lawyer

When a person files their bankruptcy petition, the federal court issues an automatic stay. This means that creditors can no longer legally contact a consumer about a debt. Just the stress of nasty phone calls is enough to push anyone over the edge as collection agencies become more aggressive in their efforts to collect a debt. Recent television news shows have profiled these sharks showing how they use illegal tactics to threaten consumers. Bankruptcy starts to look a whole lot more appealing for many people who have had enough. Before making any major financial decision, consult a bankruptcy attorney for advice about your specific situation.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Do I Need Patent Protection To Establish My Rights To A Great Idea Or Design? Posted By : Abigail Franks

Tue, 12 Apr 2011 17:41:52 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

3. Dollar Value. The higher the value of the product, the more it should be considered as a patent candidate.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Why To File a Trademark Opposition: Understanding the Differences Between the TTAB and Court

Tue, 12 Apr 2011 17:41:41 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Although a TTAB proceeding can take less time, oftentimes less than a year, and cost less than litigation, they both are adversarial processes that require an understanding of the Federal Rules of Civil Procedure and trademark law.
A TTAB proceeding is typically easier to file and to dismiss than a court action, without the risk of a requirement of consent or payment of costs and/or fees.
A trademark opposition is filed with the TTAB with any appeal going to the Court of Appeals for the Federal Circuit. This is the only way to be heard by the Court of Appeals for the Federal Circuit, which contains the most precedent related to TTAB matters. Any appeal from a decision in a federal district court will go to the controlling Court of Appeals (e.g. Sixth Circuit Court of Appeals).
While a favorable TTAB ruling in a trademark opposition will preclude the application from becoming a registered trademark, that ruling is not necessarily binding on a federal district court. Moreover, only a court of law can order injunctive or financial relief (i.e. stop the infringing use or award damages).
Leverage in a TTAB proceeding is limited to a petition to cancel the trademark registration relied upon, if any, as part of the opposition. In a federal court action, various counterclaims are available that would make the originally named defendant a plaintiff. In addition, additional third parties could become part of the litigation.

As you can see, there are numerous considerations that have to be made in choosing a TTAB trademark proceeding rather than litigation.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Property Barristers and Planning Laws

Tue, 12 Apr 2011 17:41:25 +0000

Appeals Lawyer – This article was originally published on http://getappealslawyer.com

Not all law cases related to planning are huge though. Property barristers can appear for a client at a planning hearing or a planning enquiry, or even a parliamentary committee.

Appeals Lawyer – This article was originally published on http://getappealslawyer.com