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Martin Luther King, Jr. Holiday

The Law Office of Gregory A. Ross, PC will be closed Monday, January 16th, in honor of Martin Luther King, Jr. Day.

Top Ten Reasons to Update Your Will

Update WillIf you have a Will, be sure to keep it updated when there are important changes in your life. Your Will should not be stored away and forgotten. Take it out and review it at least annually to be sure that it still works properly, especially if things have changed in your life.

Here’s a list of the Top Ten Reasons you may need your Will updated:

  1. Marriage
  2. Divorce
  3. Birth of a Child
  4. Death of Someone Receiving Property Under the Will (a Beneficiary)
  5. Moving to a New State
  6. Receiving a Large Inheritance
  7. Your Named Executor Passes Away
  8. The Guardian for Your Minor Children Passes Away
  9. You No Longer Have a Good Relationship With Someone Named in Your Will
  10. You’ve Changed Your Mind About Who Should Receive Your Property

If any of these reasons apply to you, it’s important to see an attorney as soon as possible to get a new Will or a Codicil prepared. You’re probably wondering, “What’s a Codicil?” It’s a legal document that changes the terms of a Will. It’s similar to an amendment to a contract, but it must meet the same legal requirements of a Will in order to be valid. A Codicil is a good option if you only have a few changes to your Will. If there are a lot of changes, or if your life situation has changes significantly, it’s usually better to get a new Will.

If it’s been a while since your Will was done, give us a call at 940-692-7800 and we can work with you to determine if you need a new Will or a Codicil.

Federal Estate Tax

The Estate Tax is a tax on your right to transfer property at your death. It consists of an accounting of everything you own or have certain interests in at the date of death. The fair market value of these items is used, not necessarily what you paid for them or what their values were when you acquired them. The total of all of these items is your “Gross Estate.” The includible property may consist of cash and securities, real estate, insurance, trusts, annuities, business interests and other assets.

Once you have accounted for the Gross Estate, certain deductions (and in special circumstances, reductions to value) are allowed in arriving at your “Taxable Estate.” These deductions may include mortgages and other debts, estate administration expenses, property that passes to surviving spouses and qualified charities. The value of some operating business interests or farms may be reduced for estates that qualify.

After the net amount is computed, the value of lifetime taxable gifts (beginning with gifts made in 1977) is added to this number and the tax is computed. The tax is then reduced by the available unified credit. Presently, the amount of this credit reduces the computed tax so that only total taxable estates and lifetime gifts that exceed $1,000,000 will actually have to pay tax. In its current form, the estate tax only affects the wealthiest 2 percent of all Americans.

Most relatively simple estates (cash, publicly traded securities, small amounts of other easily valued assets, and no special deductions or elections, or jointly held property) do not require the filing of an estate tax return. A filing is required for estates with combined gross assets and prior taxable gifts exceeding $1,500,000 in 2004 – 2005; $2,000,000 in 2006 – 2008; $3,500,000 for decedents dying in 2009; and $5,000,000 or more for decedent’s dying in 2010 or later (note: there are special rules for decedents dying in 2010.)

Exerpt from IRS article at: http://www.irs.gov/businesses/small/article/0,,id=164871,00.html

You Say Tomato, I Say Tomato

It was on this day in 1893 that the Supreme Court ruled that the tomato was a vegetable, not a fruit. Their ruling was in light of a 10-year-old piece of legislation called the Tariff Act of 1883, which ruled that a 10 percent tax had to be paid on all imported vegetables. The case, known as Nix vs. Hedden, was filed by John Nix and several other tomato importers against Edward Hedden, the Collector of Customs at the Port of New York. The case wound up in the Supreme Court, where Webster’s Dictionary was heavily cited. The plaintiffs argued that according to the dictionary definition of fruit — the structure that grows from the flower of the plant and holds the seeds — a tomato was a fruit. They called two witnesses, both of whom heard the definitions of “fruit” and “vegetable” out of the dictionary and were asked whether those definitions were any different in the world of trade and commerce. Both talked for a while but said no, the definitions were no different. The counsel for the plaintiff then read the definition of tomato.

Each side then proceeded to read a series of Webster’s Dictionary definitions. The counsel for the defense read “egg plant,” “squash,” “pepper,” and “cucumber” — all of which, like tomato, are fruits in the botanical sense — but which are widely considered vegetables. In response, the counsel for the plaintiff read the definitions of “potato,” “turnip,” “parsnip,” “cauliflower,” “cabbage,” and “carrot,” none of them botanical fruits but all considered vegetables.

Justice Gray delivered the opinion of the Court, and he said: “Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.”

Nix v. Hedden has been referenced in numerous cases since, including a 1990 Second Circuit Court of Appeals case about a delay in a tomato shipment. The judge wrote: “In common parlance tomatoes are vegetables, as the Supreme Court observed long ago, see Nix v. Hedden, although botanically speaking they are actually a fruit. Regardless of classification, people have been enjoying tomatoes for centuries, even Mr. Pickwick, as Dickens relates, ate his chops in ‘tomata’ sauce.”

The debate has continued, but the problem is that “vegetable” has no actual scientific or botanical definition — it is a culinary term. In 1987, the state of Arkansas designated the Vine Ripe Pink Tomato as their official state fruit and vegetable.

Tomatoes were slow to catch on in the United States — in 1845, the editor of the Boston Courier wrote that tomatoes were “the mere fungus of an offensive plant, which one cannot touch without an immediate application of soap and water with an infusion of eau de cologne … deliver us, O ye caterers of luxuries, ye gods and goddesses of the science of cookery! deliver us from tomatoes!” This opinion was echoed over and over again by journalists, agricultural experts, farmers, and gardeners across the country.

From The Writer’s Almanac, by Garrison KeillorJesus and Tomatoes Coming Soon

Chapter 7 and Chapter 13 Bankruptcy Myths and Fallacies

Bankruptcy Solutions

1. YOU CAN’T FILE BANKRUPTCY UNDER THE NEW LAW
No, THE 2005 REFORM ACT just made it more difficult and added SPEED BUMPS to overcome. This is why you need to consult a consumer bankruptcy attorney before you do anything if you are in financial distress.

2. YOU MUST BE BEHIND IN YOUR BILLS OR BROKE TO FILE BANKRUPTCY
No, do not wait until it is an emergency with bank restraints and income executions. Figure out where you will be financially 6 months from now. Will it be better or worse?

3. YOU CAN’T WORK AND FILE BANKRUPTCY
No, the starting point is the MEDIAN INCOME set in the Means Test under the new law which is currently $38,294 for single person with no dependents in Texas.
– $55,178 for family of 2.
– $65,477 for family of 4.
– Each state is different.
This is just a starting point. Certain expenses will help qualify you, so one’s gross income can be substantially higher in some cases. See your local Salinas and Monterey bankruptcy attorney to see if you qualify.

4. YOU WILL LOSE YOUR HOME IF YOU FILE BANKRUPTCY
NO: Each state has different protection for homes. If your home is underwater (meaning no equity in it), it is not considered an asset in the bankruptcy and you may elect to keep it or surrender it. Texas has an unlimited dollar value homestead exemptions to protect equity in your principal residence.

5. IT WILL DESTROY MY CREDIT IF I FILE FOR BANKRUPTCY MY CREDIT SCORE WILL GO DOWN
Let’s face it: most clients already have bad credit. Question is: What are you going to do about your debt? Most credit scores will go up after filing bankruptcy, particularly in a Chapter 13.

6. YOU WILL NEVER GET ANOTHER JOB OR BE ABLE TO RENT AN APARTMENT
You have a better chance of landing that job if you take action to fix your finances. Employers do not want harassment at work or income executions. Landlords want tenants who can use their salary to pay rent, not the Marshal or credit cards.

7. IF YOU FILE BANKRUPTCY, YOU MIGHT AS WELL MAX OUT CREDIT CARDS
WRONG! Stop using the cards and stop paying them and see a consumer bankruptcy professional. Maxing out those cards will create more problems in your bankruptcy filing and may be bad faith. Bankruptcy is meant for the UNFORTUNATE but HONEST debtor.

8. YOU SHOULD DO ANYTHING TO AVOID BANKRUPTCY INCLUDING CASHING IN 401K OR RETIREMENT FUNDS
WRONG! Your retirement funds are protected! And, you will be taxed and penalized on retirement withdrawals by the IRS! Don’t listen to those Cable Television Talkingheads who tell you to cash in your retirement!

9. IMMIGRATION STATUS WILL BE AFFECTED AND YOU WILL NEVER BECOME A CITIZEN
NOT TRUE: Filing bankruptcy is NOT a crime and will NOT affect your Green Card or CITIZENSHIP!!

10. MY BANKRUPTCY WILL BE IN THE NEWSPAPERS AND EVERYONE WILL KNOW ABOUT IT.
Bankruptcy filings are published in some newspapers since it is a matter of public record. Your real friends will understand, and who cares about anyone else. They aren’t in your shoes and don’t know what led to having to file Bankruptcy.

11. THOSE DEBT MANAGEMENT PLANS (DMP) ADVERTISED ON TV AND RADIO WORK!
NO! If you pay the DMP and do not pay your creditors, you will be sued by the creditor. Most DMPs are being investigated by the Attorney General.

12. YOU CAN KEEP 1 CREDIT CARD (JUST DON’T TELL YOUR BANKRUPTCY ATTORNEY)
No. Bankruptcy allows a Fresh Start. You must list all of your debts. It is likely that the card will be closed anyway.

13. YOU CAN’T AFFORD TO FILE BANKRUPTCY
Most bankruptcy attorneys have payment plans. In Chapter 13, most of the fees can be paid through the plan payments. You are generally instructed to stop all credit card payments freeing up money for fees.

14. YOU ARE A FAILURE IF YOU FILE BANKRUPTCY
Studies show that bankruptcies are generally caused BY HEALTH PROBLEMS, EMPLOYMENT PROBLEMS, and MATRIMONIAL PROBLEMS.

15. YOU HAVE TO PAY EVERYTHING BACK ANYWAY, SO WHY FILE BANKRUPTCY?
In A Chapter 7 bankruptcy debts are wiped out with the exception of certain taxes, child support/alimony and student loans. In Chapter 13 you pay back debts that must be paid, such as certain taxes, mortgage arrears if you are keeping the house, or payments for vehicles on which you still owe money.

Contact us with any of your Bankruptcy questions. The initial consultation is free.

Law Office of Gregory A. Ross, PC
4245 Kemp Blvd., Ste 308
Wichita Falls, TX 76308
Telephone: (940) 692-7800
Facsimile: (940) 692-7813
Email: info@gregoryrosspc.com
www.gregoryrosspc.com

Facing Foreclosure

Purchasing a home can be one of the most significant investments a person or family makes. After the sale is complete, there is often no one available to consult with when you experience financial troubles and face foreclosure. This article is designed to provide a basic introduction and description of the foreclosure process, the laws governing foreclosure, and possible options for those facing foreclosure.

What Are the Different Types of Foreclosures?

In Texas, the type of foreclosure process that is used by a lender depends on the type of debt that is owed. There are two general classes of foreclosure: a non-judicial foreclosure and a judicial foreclosure. A non-judicial foreclosure — performed without involving a court or judge — is used when the loan was used to purchase the home or to refinance the original purchase loan. A judicial foreclosure generally occurs when a government entity is seeking to collect taxes owed on the property. The government will file a lawsuit with the court seeking to have your property sold to pay for property taxes that are owed.

There is also a third type of foreclosure that combines parts of the non-judicial and judicial foreclosures and is used only for specific types of loans. If a homeowner has received a home equity loan or a loan that was used to pay property taxes, the lender must obtain a court order approving the foreclosure before performing a non-judicial foreclosure. After the lender provides the first notice and the homeowner does not pay the debt owed, the lender must file an application with the court requesting an order of foreclosure. The homeowner has 38 days to file a response to the foreclosure application. If a response is filed, the court will hold a hearing to determine whether the lender is entitled to foreclosure. If a foreclosure order is signed by the court, the lender will then be allowed to continue with a non-judicial foreclosure by providing the second notice, which is the Notice of Sale.

What Steps Are Involved in a Non-judicial Foreclosure?

Once a homeowner has missed a mortgage payment and is in default under the promissory note, the lender may attempt several unofficial steps to resolve the problem, such as collection calls, letters, acceptance of partial payments, or negotiating a temporary payment plan. Assuming that these efforts have not resolved the problem and the lender is ready to proceed with a nonjudicial
foreclosure, the following actions must be performed by the lender:

1) Notice of Default and Intent to Accelerate (the first notice);
2) Notice of Sale and Acceleration of Debt (the second notice);
3) Foreclosure Sale;
4) Distribution of Proceeds;
5) Eviction;
6) Deficiency Action; and
7) No Right of Redemption for Non-judicial Foreclosure.

What Options Are Available to Avoid a Non-judicial Foreclosure?

A foreclosure can be canceled, delayed, or avoided at any time prior to the sale at the courthouse. The best time to reach a resolution is during the 20-day period after receipt of the first notice. During this time, you are required to pay only the past due amounts and not the entire loan amount. If you believe that you will be able to gather the necessary funds to bring the loan current, it would be wise to contact the lender and keep them informed on your progress as they may be willing to extend the 20-day period if they believe that the matter can be resolved without further action. If you cannot pay the entire amount that is due, your lender may be willing to agree to a payment plan, loan modification, or other arrangement to bring the loan current and ensure that you will be able to make future payments. In certain situations, it is possible that your lender must consider modification if your home loan qualifies under new laws passed to provide relief from rising foreclosures, such as the Making Home Affordable plan and the Home Affordable Modification Program.

Deed in Lieu of Foreclosure

A deed in lieu of foreclosure involves a scenario where the homeowner voluntarily transfers ownership of the property to the lender. Deeds in lieu of foreclosure are quicker to complete, cost less money for the lender, and are more confidential than a public sale. However, this is usually only an option when ownership of the property is free and clear of mortgages, liens, and encumbrances. Homeowners will be left with the same final result as with a foreclosure — the loss of their residence.

Bankruptcy

The filing of a bankruptcy petition will immediately stop a foreclosure sale from occurring as of the filing of the petition. However, you will be required to continue making some type of regular payments and make some payments toward the delinquency as part of your bankruptcy plan. Filing for bankruptcy is a major event and should not be taken lightly or performed without careful consideration.

For assistance when facing foreclosure, please call the Law Office of Gregory A. Ross at 940-692-7800, or email us at info@gregoryrosspc.com

This article was excerpted from Facing Foreclosure, a brochure prepared as a public service by the Texas Young Lawyers Association and distributed by the State Bar. To obtain a complete copy of the pamphlet, write to the State Bar Public Information Department at P.O. Box 12487, Austin, 78711-2487; call (800) 204-2222, ext. 1800; or visit www.tyla.org.

Adoption Records in Texas Department of Family and Protective Services Cases

The Texas Department of Family and Protective Services (DFPS) Closed Adoption Records unit maintains adoption records for individuals who have been adopted through the Child Protective Services program. If Child Protective Services (CPS) or DFPS was involved in the adoption case, those records are kept by the agency. If an adoption was consummated through a private adoption placement agency, the records will be maintained either by that placement agency, or the Central Adoption Registry. If you are unsure of what agency placed you, please contact the Central Adoption Registry maintained by the Texas Department of State Health Services at 512-458-7388.

How Can I Get My Records?

In the State of Texas, adoption records are sealed by law. However, an adoptee can obtain a redacted copy of their adoption record. The redacted copy will have certain personal information deleted to ensure privacy of the involved individuals. In order to honor a request for closed adoption records the Texas Department of Family and Protective Services must have been involved in the placement and adoption of the adoptee.

To inquire if DFPS was involved in your adoption, please call 512-929-6675.

Agency case records of children and adults are only releasable to certain parties and not to the general public.

Depending on your relationship to a case, you may or may not be entitled to the information you are seeking. General guidelines for entitlement are provided by program below.

CPS records are confidential under Section 261.201(a) of the Texas Family Code. Most records will not be released unless there is a court order to release the records. Some individuals are entitled to a copy of the record or portions of the record without a court order, including the following:

• Parent or other legally responsible adult of the child who is the subject of the case,
• An adult who was, as a child, the subject of the case, including adoptions,
• A person alleged or designated to be the perpetrator in the case, or
• Other individuals identified under 40 Texas Administrative Code (TAC) 700.203.

DFPS must comply with all statutes and rules pertaining to confidentiality of CPS records.

Office Closed for Spring Break 2011

The Law Office of Gregory A. Ross, PC will be closed from Monday, March 14th, to Friday, March 18th, 2011, for Spring Break.  However, we will periodically check voice mail, and return phone calls as needed.  If you need to reach us, please call (940) 692-7800.

Did You Know Past Due Child Support Can Keep You From Getting a Passport?

When someone owes child support of $2500 or more, they are put on a list that denies them the ability to obtain a passport. Once adequate arrangements are made for payment of the child support, they can be taken off the list. However, it can take several weeks before that happens.

You should contact the State Child Support Enforcement Agency in the state where you owe child support and make sure that they contacted the U.S. Department of Health and Human Services (HHS) to inform them that acceptable arrangements for payment had been made.

HHS takes your name off the list of those who are in arrears of child support. They send notice to the Department of State Passport Services which enables you to apply for a passport.United States Passport