Author: MOWK

Will Bankruptcy Stop Wage Garnishment in NY?

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If you’re a New Yorker and your wages are being garnished, filing for bankruptcy may be a way to stop this from happening and to keep all of your wages. 

A wage garnishment immediately ceases upon the filing of a bankruptcy due to the automatic stay; the automatic stay is an injunction that is typically imposed against certain creditors who hope to begin action against a debtor. This is one of the perks of filing bankruptcy since either a Chapter 7 or Chapter 13 filing will stop a wage garnishment. This will then give you time to repay the debt. Maybe the debt will be discharged in the bankruptcy. Regardless, the garnishment will stop because of the filing. 

What money is eligible for wage garnishment?

In New York, some income can’t be garnished, including the following:

  • 90 percent of your income earned in the last 60 days
  • Court-ordered child support
  • Income from unemployment insurance, disability, and worker’s comp benefits
  • Public assistance
  • Public/private pensions and retirement savings
  • Social security

How does wage garnishment work?

If you’re employed and your income is at a certain level, then a judgment creditor can garnish your wages to collect what you owe them. The creditor files an “income execution form” and has it signed by the proper authority, such as the county clerk. Depending on your specific situation, you may be able to challenge this. 

If it goes through, the court issues an order for your employer to withhold a part of your paycheck to send to your judgment creditor. Of course, this doesn’t decrease your gross wages, but it does lower the amount of money that enters your bank account on pay day. 

While it may be a relief to stop the wage garnishment, it’s critical to understand how the bankruptcy impacts the debt. 

Types of Wage Garnishment

Depending on the type of wage garnishment involved, this will determine how the debt is treated in a bankruptcy.  

  • Federal student loans/income tax: Typically, federal income tax and federal student loans can take 15 percent from disposable income, which means all the money that you make that doesn’t go to the deductions that the law requires. However, the calculation doesn’t include rent or mortgage, or utilities; it does include Social Security and Medicare taxes. The debts will probably not be discharged in the bankruptcy; the garnishments may continue after the bankruptcy is over, and the automatic stay is lifted. 
  • Child support/alimony:  This can take up to 50 percent or more of your wages. If you need a modification, you typically will file it with the appropriate family court instead of the bankruptcy court. The chances for the debts to be discharged aren’t very likely due to the type of debt involved.  
  • Banks/credit card companies: These consumer-based types are typically adjusted or discharged in a bankruptcy, so when you file either a Chapter 7 or Chapter 13, it could be a long term stop to the garnishment. 

Talk to a NY Bankruptcy Attorney About Wage Garnishment

Filing for bankruptcy can get you back on track financially, and it may be a way to help you if you’re dealing with the garnishment of your wages. Each case is different, so it’s important to speak with an experienced bankruptcy attorney who can advise you on your specific circumstances. You can start by talking to a knowledgeable MOWK Law attorney. Contact us today to help ease your mind about your financial uncertainty. 

Is a Life Estate Deed Right for Your Estate Plan?

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A life estate deed is a planning tool that is a part of your overall estate plan. With this type of deed, an individual can deed real estate to someone, but reserve a life estate, which means that they have the right to occupy the property until death. With death, the property will then pass to the beneficiaries. Read on for a breakdown of the life estate deed, so that you can decide if it’s a good option for you.

What’s a New York Life Estate Deed?

To understand how this works, it’s helpful to explain the parties involved. Multiple parties can own property simultaneously. The party that has an ownership interest in property for the duration of their life (life estate) is called a life tenant. They can use and possess the property and are responsible for the maintenance costs for as long as they live. 

After the life tenant dies, their ownership interest passes on to the other party, the remaindermen. While the life tenant can possess the property during their life, they are legally accountable to the remainderman and can’t sell or waste the property without the remaindermen’s permission. 

Benefits and Advantages of a Life Estate Deed

  • The life tenant has the legal right to stay in the house for as long as they live.
  • When the property is transferred, it immediately goes to the remaindermen without going through probate.
  • The property receives an entity called a “stepped up basis” when it passes to the beneficiaries, which means that when the beneficiaries sell it, they would generally pay less in capital gain tax than if the property had been gifted to them during the property owner’s life. 
  • Can help for Medicaid eligibility for the purposes of paying for nursing home care. Because there are limits to the amount of assets you can own, the deed can assist with getting property out of your name.

Life Estate Deed vs. Trust

With an eye toward protecting their home, a homeowner might wonder whether they should consider a life estate deed or create an irrevocable trust. A transfer of a deed into an irrevocable trust transfers the title of the property to the beneficiaries of the trust after the death of the trust creator. Similar to a deed with a life estate, the trust creator keeps the right to live in the house and is responsible for household expenses. 

Both options let you retain specific rights concerning the lifetime use of the property including tax benefits associated with ownership, such as enhanced star benefit, Veteran’s benefit, and capital gains exemptions. 

However, there are benefits that the trust offers that the life estate deed doesn’t have, including more flexibility. For instance, if a life estate deed needs to be transferred back to the property owner and they need to get the property back into their name. 

Get Help with a Life Estate Deed from a New York Attorney
Depending on your specific situation, a life estate deed may be a good fit for you. There may be reasons to consider this if you want to qualify for Medicaid to qualify for nursing home care. These laws are very complex and difficult to navigate. This is why you may want to talk to one of the MOWK Law New York estate planning attorneys who specialize in this subject area. Contact us right away to get started!

What You Should Know about Filing Chapter 7 Bankruptcy and Divorce

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If you’re interested in starting over both financially and personally, and you want to file for both a divorce and bankruptcy, you want to understand what you’re getting into before you begin either one of these proceedings. Yes, you can file for bankruptcy without your spouse. However, whether you want to do this before, during, or after your dissolution of marriage will depend on the details of your particular financial situation. 

In general, filing a New York Chapter 7 bankruptcy gives you the chance to discharge unsecured debts. But, in order for you to be eligible for filing a petition under Chapter 7, you have to meet the requirements, which is the “means test” where your income must fall below the designated income threshold. If you do indeed qualify, some of your assets (including your home) may be liquidated if you aren’t able to protect them using allowable state or federal exemptions.  

Identify your Property Interest in your Primary Residence

If you own your home with your soon-to-be ex, it’s important to distinguish the type of ownership interest. Is it as joint tenants with rights of survivorship? Or as tenants in common or as tenants by the entirety? The deed should indicate the interest based on the specific language. However, if it doesn’t, the general rule is that if the property was purchased during the marriage and a divorce hasn’t happened, New York law determines that the property interest is tenants by the entirety.   

Consequences of Chapter 7 Bankruptcy 

Be aware that as of the case commencement date, if you’re the solo filing spouse and you have an undivided interest in the property (tenancy by the entirety, joint tenancy, or tenancy in common), the bankruptcy trustee may sell both the estate’s interest and the non-debtor co-owner’s interest in the property.

Exemptions to Take

There are several exemptions under both federal law and New York State law. However, the specific ones to take depend on your individual situation. If you file alone, the allowable NY state exemption is $89,975 (it’s higher in some counties, including Nassau County and Suffolk County), but if you file as a married couple, the exemption is double, as long as you both own the property.   

Factors that Affect Whether the Trustee Sells the Home

There are many factors that help to determine whether or not the trustee will sell your home, including the following:

  • The value of the property (not the original purchase price of the home)
  • Mortgages and other liens encumbering the property
  • Homestead exemptions

Under Section 363 (h) of the Bankruptcy Code, a trustee may sell these interests only under the following circumstances:

  • The partition of the property is impracticable and
  • The sale of the bankruptcy estate’s undivided interest in the property would end up substantially less for the estate than the sale of the property free on the non-filing spouse/co-owner’s interest and
  • The benefit to the bankruptcy estate of a sale of the property free of the co-owner’s interest outweighs any damage to the co-owners. 

Get Legal Help with your Bankruptcy Issues

If you don’t meet the Chapter 7 income requirement, you may want to file a petition with your spouse that will let you benefit from homestead exemptions if you own your home together. Because bankruptcy is a complex and specialized area of law, you need to talk to an experienced legal professional who can provide detailed assistance specific to your case. Contact an experienced MOWK Law attorney for assistance right away.  

Buying a Small Business in New York

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After deciding to purchase a business, you will investigate specific businesses to buy. You can find them through the internet, various brokers, or via your own personal and professional connections. Once you’ve settled on a target, you will have to go through a series of actions to complete the sale. Read on to learn how to buy a small business in New York. 

Investigating the Business

You want to know that you’re getting a fair price for the business; you also want to know every facet about the business if some unknown factor could have a negative impact. Therefore, any buyer will perform due diligence before proceeding. This involves heavy investigation, including checking on tax returns, liens, leases, asset lists, permits and licenses. Looking into the employees, any violations or lawsuits should also be part of the process. 

Negotiating the Terms

This is dealt with primarily in the “term sheet” or letter of intent, which puts in writing the basic terms of the deal before the drafting and negotiating of the sale agreement. The term sheet:

  • Shows intent; it lets the seller know that you’re serious about purchasing the business. 
  • Avoids future negotiation impasses about major issues when the parties have already spent much time and money on the transaction.
  • Acts as a guide for the attorney when they draft the sales agreement.

Documentation of the Deal

These are key documents when transferring the business to the seller: 

  • Sales Agreement: Sets forth the major terms and conditions of the transaction and is often executed days or even weeks before the closing.
  • Promissory Note: Sets forth the purchase price owed, the dates for the remaining payments, interest on any outstanding payments, and makes it easier for the seller to collect from you if you default a payment.
  • Security Agreement: Seller may ask for a security interest in the assets being sold to you. Then, the seller may foreclose on the business assets in case you default on payment. 
  • Bill of Sale: Transfers ownership of the tangible assets of the business from the seller to the buyer, including furniture, supplies, inventory, equipment.

The Closing

It’s time for everything to culminate in the closing. This is the end of the process of the purchase when the parties and their attorneys come together to exchange money and property and complete the remaining documentation. Typically, the when and where of the closing is set forth in the sales agreement. It’s best if the closing goes on without incident, but there may be last-minute issues. Perhaps some closing conditions haven’t been met, or there are changes to the documents that need to be addressed, but hopefully the parties are fine with going ahead with the transaction regardless. 

Get Help with Buying a Small Business in New York

Many closings will go off without a hitch due to careful planning and willing cooperation between the parties. You will need an experienced attorney at every stage of the process when you make your small business purchase. They can help you handle barriers that arise in the due diligence process, prepare the paperwork, and deal with last-minute negotiations that occur during closing. Act in your best interest and connect with one of our skilled MOWK Law attorneys. Contact us today. 

What Does a Failure to Function Mean in Trademark Law? 

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Picking out a good name for your trademark is just one step on the way to establishing the trademark for your business. Registering your trademark with the United States Patent and Trademark Office (USPTO) is a worthwhile path to take because it allows you to protect your rights against trademark infringers. But not all trademarks will make it to registration. It may be rejected for many reasons, including the likelihood of confusion or mere descriptiveness. Another common form of registration refusal is the “failure to function.” Before you file for registration, read on to learn more.

What is the Purpose of Trademark Law?

The main purpose of trademark law is twofold: It is to help consumers know where the products and services they use comes from, and it rewards and protects companies who form goodwill and rights by being the first to use a trademark on a service or product. This prevents other businesses from trying to use a similar mark to sell similar products or services.

What is a Failure to Function?

A trademark is a word, symbol, design, slogan, or phrase that is used to identify and distinguish your business’ product or goods from others; it is a source identifier. A trademark can be rejected for registration based on its failure to function when the mark can’t be used as a source identifier in the public’s mind.

Because a trademark must be distinctive, a mark that’s only informational or that’s a widely used phrase, doesn’t connect with a particular business, product, or service. Therefore, it fails to function as a source identifier and can’t be protected under trademark law.

When Will a Trademark be Rejected for Failure to Function?

Typically, the USPTO will reject a trademark for failure to function when the mark fits into one of these categories:

  • It is informational or descriptive
  • It is a message that’s commonly used
  • It is generally used to show religious, political, or social views
  • It shows support or is associated with a particular message

Examples of Trademarks that Were Rejected for Failure to Function

The more familiar the term or phrase is, the less likely it will be a mark that could be used to identify a single source of goods or services.  Here are examples of marks that failed to function as source identifiers:

  • All natural gourmet crabmeat pasteurized
  • Born in the USA
  • God bless the USA
  • I love you
  • Intelligence of things
  • Inventory is evil
  • Legal landmines
  • Mama bear
  • Remember this name
  • Ribbons of hope
  • She knew she could
  • Team Jesus
  • The next move is yours
  • Worst movie ever

Get Help with Trademark Registration

Although you don’t necessarily need to have your trademark registered. But if you do, you want to be sure that it’s not going to be rejected based on a failure to function. Add value to your business by getting your trademark registered and get help with a skillful attorney familiar with intellectual property issues. Contact us here at MOWK Law where our lawyers are available to fill your IP needs.

What Happens if You Don’t Buy a Homeowner’s Title Policy?

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You’ve looked over the options and have made your choice: You’re ready to purchase that cozy condo or that attractive New York brownstone. Whenever you buy residential New York real estate, you aren’t merely paying the asking price. Rather, there are many other fees associated with it including a host of various closing costs. As a purchaser, you want to save money and may want to avoid a survey or an inspection as a way to keep down expenses. While some of these costs (including broker fees) aren’t negotiable, there are things that you can sidestep. 

However, many times mortgage lenders won’t allow buyers to do this. A close analysis of the financial information prior to closing indicates that you have to pay for title insurance not only for yourself but also for the mortgage lender. While there is usually no way to get out of buying a lender’s policy, you can opt out of a buyer’s policy. But is this something that you really want to do? Read on to learn more about making this choice and what’s at stake if you don’t buy a homeowner’s title policy.  

Types of Policies

There are two types of title insurance policies, an owner’s policy and a loan policy. The owner’s policy protects you in case there is a covered title defect in your right of ownership. If you need a mortgage to buy your home, the lender will probably require that you purchase a loan policy or lender’s policy. This policy protects the lender’s interest in the property until the mortgage has been paid in full.  

Title Insurance and Ownership Rights  

In order to get a title insurance policy, you will need to have a company carry out an exhaustive title search looking at the ownership history of the property, including any liens that require payment as part of the transaction. When you acquire a title insurance policy, it will protect you if another party eventually shows up claiming to be an owner or claiming to have the right to some other hold on the property’s title.  

First, the title insurance will pay for a lawyer to represent you in a title dispute in court. Next, if the person claiming title is successful and you lose possession of the property, then the title insurance will reimburse you for the investments that you’ve made in the property. 

However, if you don’t have a title policy and someone brings a claim against your property, you could lose out on not only the down payment that you made, but also on all of the accrued equity from payments since the closing, and the value of improvements that you’ve made to your home. 

Get Answers from an Experienced New York Real Estate Attorney

Buying a new home is one of the most fulfilling things that you can do. Ensuring that your right to own the property is secure can be equally satisfying. Understanding the aspects of a real estate transaction can assist you with making thoughtful choices prior to your closing. Get help with this by turning to one of our experienced MOWK Law attorneys who can guide you through this process. Contact us today for more information.  

Top 3 Concerns for First Time New York Home Buyers

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You’re excited because you’re about to become a homeowner for the very first time. This can also come with a lot of stress, in addition to excitement and anticipation since you’re new to the home buying process. However, don’t let your enthusiasm make you overlook key issues. Here are top concerns to watch out for when you’re making your first home purchase.

1. Title Concerns: At a given point when you’re in the home buying stage, you can receive a summary of the property. When you get this, be sure to examine the details of the title summary and look out for key information about things like easements, liens, and other encumbrances and exceptions that may restrict the way that you can use and enjoy the property. 

2. Repair Concerns: Repair work is a major area that can involve many red flags. It’s important to be vigilant when it comes to this aspect of purchasing a home.

  • Sometimes property owners make repairs and cosmetic fixes to up their asking price or to get a quicker turnaround for the home sale process. Pay special attention to the actual quality of the home and look beyond the superficial enhancements. 
  • You should carefully inspect all repairs and look for indicators of subpar repairs. Shoddy work doesn’t always indicate that there are major problems that the owner is trying to conceal, but it could mean that there are larger less obvious repair issues that need to be resolved.  
  • Inspect the building and the lot to make sure that everything is completely finished and well-made.
  • Reference all repair work with the seller’s disclosure. If there is information that doesn’t line up with the what’s in the title summary or what you see when you do the physical inspection, you may want to keep looking for other house purchase alternatives.

3. Negotiation Concerns: This is a pivotal part of the home buying process and there are a lot of things to think about before approaching the seller.  

  • Don’t make the mistake of taking it for granted that every house price is negotiable.
  • However, you also shouldn’t give too low an offer because it could turn-off the seller and make them not want to deal with you at all. This may close the door on negotiations even before you get started. 
  • Alternatively, you can just leave this to the brokers. After all, it is their job to attract clients and to work on your behalf.
  • Keep in mind that this may not be your “forever” home and that you may want to sell the house someday. Therefore, you should concentrate on the location and not just fixate on the price. 

Make Home Buying Easy with Help from an Experienced Lawyer

If you’ve followed these steps, you may be able to have a fairly smooth home buying experience. However, there are numerous situations where you can use the help of an experienced New York real estate lawyer. Contact us at MOWK Law for an attorney who is ready to assist you.

What You Need to Know about Pretrial Settlements

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A pretrial settlement is when the parties in a lawsuit meet before trial to figure out payment for losses and injuries. Instead of going through the entire trial process, the parties try to negotiate and resolve payment issues, rather than depending on the judge to determine the damages award. Keep reading for more information about this common dispute resolution approach.

When do pretrial settlements occur?

After receiving notice of the lawsuit, the defendant has the opportunity to work with the claimant/plaintiff outside of court to come to an agreement about liability and how to measure damages. 

The settlements can occur in any personal injury arena, but they are very popular in auto accident claims, which can be complicated due to the presence of other parties like insurance companies. Pretrial settlements are also common where business owners are trying to avoid taking time out for court appearances in cases like slip and falls or other claims that occur in business establishments. 

After the distribution of the facts of the case, the plaintiff can work with an attorney to draft a formal offer of settlement according to the outlined terms and send it to the defendant for consideration. Alternatively, another option is that both parties can have conversations to negotiate the offer together. 

What are the benefits of pretrial settlements?

If you go the settlement route, all parties may be able to save both time and money. Depending on the case, the costs of legal fees, securing and paying expert witnesses, and other costs associated with the lawsuit can really add up, so the settlement can be a way to reduce this.  

Additionally, under some circumstances, if a settlement agreement is reached, it may be a more accurate compared to the court’s calculation of compensation for damages. 

However, settlement isn’t always a possibility when the parties don’t agree on all of the terms. In such cases, a partial settlement can be reached, and then the disputed terms can be litigated in court.

Helpful hints on negotiation for claimants

There are certain things that claimants should consider when negotiating:

  • Envision a settlement range prior to the meeting
  • Don’t rush into the first offer. Insurance adjusters tend to start low because they expect that the other party doesn’t realize what their claim is worth
  • Get the settlement in writing 

How do pretrial settlements payouts work?

Generally, the parties can decide how the settlement payments are paid out. In some cases, a lump sum is paid to the injured party, but the plaintiff may instead choose to receive a structured settlement; many plaintiffs prefer this periodic schedule because they can avoid paying large amounts of taxes on the money that they get.  

Contact an Attorney for Pretrial Settlement Help

You might want to consult with an experienced personal injury lawyer if you’re considering settlement as an alternative to litigation. Your attorney can assist you in navigating the settlement process from beginning to end. Get in touch with a skilled MOWK Law attorney right away to find out about your options. 

What You Need to Know about NY’s Power of Attorney Law

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No amount of New York estate planning is complete without protecting yourself while you’re still alive. This is why a power of attorney is important. It’s recommended (in conjunction with a health care proxy) for anyone 18 and above. Here’s what you need to know about New York’s recently changed power of attorney (POA). 

What is a Power of Attorney? 

A power of attorney is a legal document that acts as a planning tool that is used during your lifetime. In a general sense, it allows an individual or multiple other people, the power to manage the financial affairs and make important decisions on another individual’s behalf if they can’t.

The Parties of a POA

The “principal” gives specific authority to others who are the “agent/agents.” The agent is the individual who is authorized to make decisions on your behalf and who agrees to follow the instructions that you have set up. In the absence of specific instructions, the agent is required to act in the best interests of the principal.

You probably want to consider choosing more than one agent in case your agent passes away or somehow becomes unavailable. Otherwise, your family will likely have to endure lengthy and costly court proceedings to handle your personal and financial affairs. They would have to replace the previous agent by having a guardian appointed. You can avoid this by appointing a successor agent or by assigning co-agents.  

What Changes were Made to the NY POA?

Because the old format was convoluted and lead to many invalid POAs, the aim of the new law was to simplify the process. Here are important changes:

  • You don’t have to use the “exact wording” anymore and instead it’s “substantial conformity” with the wording of the law 
  • There’s built-in forgiveness for making insignificant spelling or wording errors or for using language/formatting from prior law 
  • The POA must be signed, initialed, and dated
  • The POA form now requires two witnesses, in addition to notarization 
  • POA can now be signed at the direction of the principal, which had previously been a major issue if the person couldn’t sign independently due to illness or physical disability

Presumption of Validity

If a POA was validly executed before the effective date of June 13, 2021, it is enforceable under the new law. For all the POAs that are executed after the effective date, there’s a presumption of validity. A financial institution (or other third party) may agree to take a witnessed/notarized POA and may rely on the presumption that the signature is valid; this presumption prevents these third parties from rejecting the POA without cause. 

Effectiveness 

For the POA to be effective, the principal must have capacity at the time of the signing, and the DOA is durable if it remains in effect even after the Principal becomes incapacitated. The POA is effective when the agent has signed the POA in the presence of the notary. If there are two or more agents who are designated to act together, then the POA takes effect when all agents have signed in the presence of the notary. 

Get More Information about New York Power of Attorney

If you have an old POA, it should still be enforceable it was in compliance with the law at the time. However, you may still want an experienced attorney to go over it to ensure that it meets the legal requirements. If you don’t have a POA, you can get an attorney’s help with setting it up and taking care of all your estate planning needs. Connect with a MOWK Law estate planning attorney who can help you sort out your specific situation.   

What You Should Know about Bankruptcy and Child Support

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Whenever someone files for bankruptcy, it can be a way for them to wipe the slate clean and start a new without worrying about the bills and debts that they have racked up. However, if you have to pay child support, filing for bankruptcy won’t eliminate what you owe, and it won’t alter what you must pay in the future either. Just because it doesn’t wipe out your child support payments doesn’t mean that there isn’t any connection between bankruptcy and child support. Read on for information on what you should know about filing for bankruptcy and child support obligations.

Automatic Stay

Typically, when you file for bankruptcy, most of your bills are subject to an “automatic stay.” The automatic stay acts as a stop sign, which means that any creditors must automatically stop all collection actions for the entire term of the bankruptcy, including wage garnishments, foreclosures, bank levies, and collection calls. But this doesn’t apply to child support or spousal support because there is an interest in protecting the rights of children to receive parental support. 

The Role of the Bankruptcy Regarding Child Support Obligations

For all bankruptcy filings, the court appoints a bankruptcy trustee to handle the case. The trustee must report child support obligations and will have the debtor to complete a form for the meeting with the creditors. Since child support is considered a “priority debt,” when money is available for paying creditors, the trustee must pay child support arrearages first before paying other debt. 

Chapter 7 Bankruptcy 

Here is some information that is specific to filing Chapter 7 bankruptcy and how it impacts child support obligations:

  • In a Chapter 7 bankruptcy, your assets are sold off to pay your debts. 
  • While most of the remaining debts will be discharged, this isn’t true for child support in arrears or child support that is past due.
  • You are still responsible for child support and property division balances after the case closes.
  • If the trustee sells property that you can’t protect with an exemption, the funds will be applied to the support obligation.
  • You will remain responsible for any child support obligation and any amount that are due after the filing even when you get a discharge.

Chapter 13 Bankruptcy

Here is some information that is specific to filing Chapter 13 bankruptcy and how it impacts child support obligations:

  • If you’re filing a Chapter 13, your child support in arrears is subject to a repayment plan where you will pay it off over 3-5 years.
  • You must meet all court-ordered child support obligations. 
  • It’s possible that you may be able to wipe out a property division balance.
  • Since a repayment plan can’t exceed 5 years, if you have a lot of child support in arrears, you will have to deal with a high monthly plan payment. 

Speak with an Experienced Bankruptcy Attorney

Bankruptcy laws can be complex and difficult to understand. That’s why if you owe child support payments and are thinking about filing for bankruptcy, you should speak with an experienced MOWK Law New York bankruptcy attorney. They can provide insight into your case and can help you make a decision about what’s best for your situation. Contact us today.