Tuesday, March 31, 2009

The Meaning Behind the Confusing Alphabet Soup of Business Ownership

You have decided to start your own business and have begun researching into, among other things, which business entity is right for you. There are partnerships, S-corps, C-corps, LLPs, LLCs, and PCs. Quite frankly, your research is starting to look like alphabet soup. So, which one is the right one for you? As always, it is imperative that you contact your attorney to aid you in making this important decision. However, if you are going to go into business by yourself or with your spouse, a LLC maybe right for you.

A Limited Liability Company, commonly known as a LLC, is a relatively new business entity that has rapidly become a popular choice for small business owners. A LLC is a hybrid of a corporation and a partnership.

Like a corporation, LLCs are a structured entity that has, among other things, an operating agreement, articles of organization, and managers, but it most importantly offers the benefit of limited liability. Limited liability limits the personal liability of the owners' (called members) in the LLC's transactions and interactions with other businesses and the public by acting as a shield between the owners' personal assets and the LLC. For many small business owners, having this shield allows them to take greater risks and opportunities with their new business without jeopardizing their or their family's personal assets. For example, if the LLC is sued or has an outstanding debt, the owner is normally only liable for the amount he or she has already put into the business and nothing more. The aggrieved party can only look to the LLC, and not the owner, to satisfy any judgment or debt. In order to obtain this protection, just like corporations, a LLC must register with the Illinois Secretary of State.

An LLC also has some characteristics of a partnership, namely flexibility, informality, and tax reporting options. If there is a single member, or a married couple who are the sole members, no separate income tax return needs to be filed for the LLC as it can be "disregarded" for tax purposes. Rather, the member simply reports the LLC's income and deductions on their individual or joint tax returns on a Schedule C. This eliminates the headache associated with filing two tax returns. If there are two or more persons who are not married, a separate partnership tax return can be used, which uses pass-through taxation. The partnership return will pass though the income and expenses to be included on the individual's income tax returns.

There are many more advantages, and some disadvantages, to forming a LLC. It is essential that you contact your attorney to help you decide which business entity is right for your business, and let him or her lead you through this confusing alphabet soup of business entities.

Carrie M. Buddingh is a lawyer and an associate with The Gierach Law Firm in Naperville. She can be reached at CarrieB@GierachLawFirm.com

Article Source: http://EzineArticles.com/?expert=Carrie_M._Buddingh

Choosing an Online LLC Formation Service - Avoid the 3 Biggest Pitfalls

The most efficient way to get a limited liability company formed for a new business is to use an online LLC formation services company. As Internet use has become so widespread and very mainstream for business activity, many businesses have started that provide affordable (and sometimes not so affordable) document preparation and filing services.

As you do your research and comparisons, make sure that you address the biggest 3 pitfalls so you can avoid surprises, problems and long delays.

Pitfall #1: Teaser Rate Services Fee

When it comes to forming an LLC with a service, the services fee is the first thing you will want to look at. The first is the cost for them to provide this service. Beware of teaser introductory rates. Many of these sites will offer a base service for a very low price, but when you look at the details, there will be added fees processing costs, administrative fees and elevated shipping costs.

In many cases, with the base services fee, the online company will not prepare your filings for several weeks. This is of course just a ploy to get you to upgrade to their higher fee package. Most business owners who are at the point where they need to organize their LLC do not have the time to wait the 4-8 weeks or longer that some entry level services require.

Pitfall #2: Timing for LLC Formation Completion

It is surprising how many online LLC formation services do not state their turnaround times clearly on their websites. Again, this is because for many of the low priced providers or the entry level packages, their turnaround times are too long to be acceptable.

It is essential for starting any business that you not conduct any business activity until your LLC has been formed and you can conduct all business in the name of your limited liability company. Before you purchase any formation service, confirm the turnaround times and make sure it meets with your business needs.

Also, when comparing services, the timing is as important as the costs. For example, if one company charges $200 for a 7 day turnaround time and another company charges $130 for a 30 day turnaround time, this is not an apples to apple comparison.

Pitfall #3: Marking Up the Filing Fee

The services company will need to not only collect its service fee from you but will also need to collect the state filing fee which it will need to send in with the document filing to your state of formation. This fee should be the same with all services as the state does not vary its fees.

You will find that many online LLC formation companies mark up the state filing fee. This is deceptive to me and you should not do business with any company that engages in this practice.

When you are looking at multiple providers and see a fee difference, this will be a flag of concern. Now, before you jump to conclusion, the state can charge extra fees and payments under certain circumstances. For example, in California, a mail-in filing currently costs $75 and will take 6-8 weeks while a personally delivered counter filing will cost $85 but reduces the processing time down to 2 weeks. Many online LLC formation services companies recognize that most small business owners starting their business cannot wait 6 weeks or longer so their filing automatically assumes the counter filing.

The important point here is to look for the breakdown of the stated filing and processing fees going to the state. Some will be legitimate but unfortunately, many services companies include unwarranted mark-ups.

There are other factors to insist upon in an online LLC formation service. Click here for more instructions on what to look out for in an online llc formation services company. One company which offers the fastest turnaround times in the market, excellent customer support, and backs it services with both a compliance and satisfaction guarantee is The LLC Expert: http://www.TheLLCExpert.com

Article Source: http://EzineArticles.com/?expert=Amy_McDaniel

Monday, March 30, 2009

Three Wise Men

Most people who are concerned with protecting their assets from a wide range of potential threats will make an appointment with a lawyer, sit down, get a game plan together, and implement it. There's nothing wrong with that, and if you've already gone through this process, you're way ahead of most of your peers.

However, there is a much better way to go about this process. You are essentially treating the lawyer like your expert, your wise man who will guide you through your process. But what if the lawyer that you've chosen is not right for you? He may be a bad lawyer, or, even worse, he may be a good lawyer who is used to dealing with a different kind of client than you. He may apply his great strategies to your situation, when in fact you are a different animal than the ones he's used to. And don't expect your prospective lawyer to tell you that. The lawyer wants to do one thing when you walk in the door -- inspire enough confidence in himself that you'll close the deal by hiring him.

And even if you do have a great lawyer who is properly acquainted with your situation, he may not explain the full range of options. And, to be blunt, he may overcharge you. The only way to protect yourself from all of these potential problems is by getting a diverse set of opinions. Before you sign papers hiring a lawyer, meet with three of them for an initial consultation. You may be completely shocked at how differently various lawyers will attack the same problem, even if they are all competent.

Once you have a few meetings under your belt, you will have acquired a much greater understanding of your options. That's the time to make your pick and, if you wish, negotiate a better price for yourself. Once a lawyer hears that you're essentially taking bids, his price will go down. Good luck!

Be sure to read up on Asset Protection since it is an extremely important part of your Real Estate Investing plan.

Article Source: http://EzineArticles.com/?expert=Wolfgang_O

The Great Temptation - Why Personal Guarantees Are a Bad Idea

No matter where you are in your career, you will have, at one point or another, been tempted to give a personal guarantee. Maybe you feel like it's the only way to get started. Or maybe you know that the value of your home is the only way that you can catapult your business up to the next level. But, as my Great Uncle Sylvester used to say, "Personal guarantors are penniless. Some of them just haven't gotten there yet."

For many business considerations, you have to really be an expert to understand the nuance of your particular situation as it pertains to the issue at hand. Luckily for you, there's only one thing you have to understand here: putting up a personal guarantee is never a good idea. Ever. If you truly need to rely on your personal assets to secure a business proposition, you cannot go forward with that deal.

There are three common career points when someone is tempted to sign a personal guarantee. When you are first starting out, you want to get your business started, and the only way to do that is with a big loan. But a bank won't loan you money unless you put up your home or other assets. In the second common scenario, you feel like your established business could really grow if only you had the cash on hand to make a big deal, whether that deal is a new piece of equipment or a prime property that seems like a cash cow. The final common scenario is the worst of all-- your business is failing or going through a tough time, and you need some cash in order to get through the lean time. If you put up your personal assets, you think you can see through to future profitability.

In all three of these scenarios, the same principal applies. The bank won't issue a loan because they don't feel that the business model is a sure enough bet for them to lay out the cash. In truth, there is a large number of potential risks that may be good bets, and yet which don't meet the cautious bank's criteria for a safe investment. But you have to ask yourself-- do you want to be less careful with your family's future than the bank? The answer should be a resounding no. You either have to find an investor, or give up on the idea.

The sole exception to this is when the amount of money in your personal guarantee is an amount that you can afford to lose. This scenario is, sadly, not usually the case, but if it happens to be the situation here, then, of course, it's your money to risk. Just don't bet the family home on a business deal.

Be sure to read up on Asset Protection since it is an extremely important part of your Real Estate Investing plan.

Article Source: http://EzineArticles.com/?expert=Wolfgang_O

Sunday, March 29, 2009

Illegal and Legal DVD Copying - Very Controversial Topics

Legal DVD copying is a highly controversial subject and is often the topic of heated debates, especially since nobody can agree on what the laws actually mean. Is it illegal to copy dvd's? Even as backup copies for personal use? If a consumer goes to the store and buys a DVD the legal way, brings it home only to find out that it skips in some places, is it still illegal for the consumer to burn a working copy of it for personal use?

The answer, in short, is both "yes" and "no".

For the most part, there isn't such thing as LEGAL DVD copying. However, some aspects of the law aren't specifically clear, and are open for interpretation. When it comes down to it, copying a DVD is illegal whenever the CSS (content scrambling system), which is an encryption code used to protect DVD's from being copied, is unscrambled.

The CSS encryption code, unfortunately for Hollywood, is incompetent. The code has been cracked, and there are now countless DVD copy programs that will burn exact copies anyway, despite the entertainment industry's best efforts. Although technically, legal DVD copying is nonexistent, according to Hollywood, anyway, their security measures failed and many people are copying DVD's anyway.

When it comes down to it, there *IS* such thing as legal DVD copying. What is ILLEGAL, however, is unscrambling the CSS encryption code. So unless one has access to old copies of DVD's, DVD burning software, and an old DVD burning drive, it's hard to copy a DVD in a legal manner. This doesn't stop the fact that there are countless software programs out there being made and upgraded every single day in order to burn successful copies, even it means to unscramble the scrambled code.

Some of these software programs are for advanced users. Technological savvy individuals can manually go straight through the encrypted protection themselves. Illegal or legal DVD copying---none of it matters to some people, just as long as they can make nice, quality copies successfully. Even those who don't have a lot of knowledge about how DVD copying software works can find the automatic process easy. None of it's really hard to catch on to.

What about making backup copies of software and/or games rather than movies? There are a lot of legal DVD copying purposes out there. After all, if copying EVERYTHING is 100% illegal, then why are DVD and CD burners even made in the first place? Why are DVD-R's sold on the market? Obviously, there are a lot of legal uses. Many people do backup important software and files on DVD's.

In order to find out more about legal DVD copying, it's best to read reviews on all the different software programs out there to find out how they all work. For some, none of it's a big deal and they could care less whether or not it is illegal or legal. For others, though, all of it *IS* a big deal, and they don't want to take any risks. Until Hollywood catches up with advanced technology and finds a way to change the laws so that everybody can be happy, we'll all only continue to debate about illegal and legal DVD copying.

Know what you can and can't do when it comes to legal DVD copying. Since some programs are legal and others are illegal, Matt Henderson created dvdcloningsoftware.com which gives complete DVD copy software reviews in order to provide consumers with in-depth information.

Article Source: http://EzineArticles.com/?expert=Matthew_Henderson

Poor Man's Copyright - Legally Binding?

Getting copyright for your own original work is something that is advised under the law, particularly if there is something about your work that makes it likely to be either copied or used for any purpose against your will. Being the creator of a piece of work is something that can provide both financial riches and personal kudos. If, however, you have not copyrighted this work, you will have problems trying to prove ownership further down the line.

Of course, copyrighting your work will cost money. This is all very well and good if you are a successful artist who has been selling their pieces for some time and has the money in the bank to pay copyright fees. The expense is not huge - especially when compared with some other legal services - but it still brings into the matter a question of whether copyright law discriminates against poor, struggling artists. If you happen to have an idea that you imagine may well be lucrative, but not the money to copyright it, then you may feel that you are being unfairly prevented from protecting your idea.

One solution that has been mooted in this situation is the practice known as "Poor Man's Copyright". As the name suggests, it is a way of demonstrating that one has taken action to protect their idea, and doing so without having to spend a large amount of money when one cannot reasonably afford to. The practice itself is fairly straightforward and simple, and based in some genuinely clever thinking. The idea is that if you take a copy of the work and send it to yourself through the mail, there will be a date postmarked on the envelope showing when it was sent. If someone then tries to copy your work or pass a version of it off as their own you have a way of showing that you had the idea first and took steps to protect it.

The fact is, however, that Poor Man's Copyright is not legally binding. No provision is made in US copyright law regarding such protection, so people responsible for original work are still required to put it through the process of applying for copyright if they want total, full copyright protection. This is not an advantageous situation for anyone who has an idea while down on their luck financially.

However, it is still worth going through the process of sending the work to yourself. It can be used as evidence where there is reasonable doubt, and more importantly it can be a way of providing notice to any potential plagiarist that you are mindful of people trying to steal your ideas. In any potential case where you may sue for plagiarism, it is always desirable to be as fully armed as possible for any legal battle. After all, it is potentially a question of substantial, repeated future earnings and you want to put your foot down to protect those.

Disclaimer: This article is for informational and entertainment purposes only, and should not be construed as legal advice on any subject matter.

LegalBuffet.com is a complete online resource that compares the legal services offered by various online companies. Find the best company for your copyright needs at http://legalbuffet.com/copyright-services/.

Article Source: http://EzineArticles.com/?expert=Melissa_M_Gordon

Saturday, March 28, 2009

Criminal Background Check - Make Sure Your Not Dating a Married Person Or Check Into Someone's Past

The idea of using a criminal check may seem far fetched but to be honest, they are easy to do and can save you a headache in the future. Instead of having to make a trip to the police station you can do a check online at home. This leaves almost no reason for you to not check up on people you may not know as well as you think.

If you use an online dating service, chances are you are going to be meeting a lot of strangers that you may or may not have some things in common with. If you talk for a while online and decide it is time to meet, you should think about doing a background check. This will keep you safe from any unwanted harm that can occur, you can also avoid dating a married man simply by doing a background check on him first.

Keep your children safe is a parents number one priority, so why would you just hand your kid off to some stranger simply because they work at a day care? While a day care may look safe, how do you know what goes on when you aren't around? Instead of leaving it up to chance simply because they look like nice people, you should be safe for your children's sake and run a search.

One other reason for doing a check, while it is not the last reason, is checking up on your neighbors. Most often children can run into trouble with a neighbor you thought was a good person. This can be avoided if you check up on them by doing a background check. You may not expect to find anything bad about them, but you never know who you are living next door to.

This is an easy service to use and it is fast too. All you do is enter some things about who ever you are curious about, and after only a few seconds, you will have just about anything you will ever need to know about them. If they have a criminal record you will be able to see what they were convicted for. Police officers use this same system to check up on people so you know you are getting accurate data.

The bottom line is when it comes to you and your family's safety, you can never be to careful. After using various services to check up on people, here is my #1 recommended service for criminal background checks.

Article Source: http://EzineArticles.com/?expert=Dennis_R._Ward

Discover Full Details About Anyone's Past With This National Background Check

Digging into someone's past is something that many have thought of doing for numerous reasons. You can use background checks for lots of reasons - for example finding out about a new caretaker or person somebody has started to date. Thankfully, this is now easier than ever to accomplish with an online background check.

Years ago your only way to do a background search was to use a detective or go through a investigative company. This was pricey, time consuming and not always reliable. It's no longer pricey or difficult. The internet now makes it easy to find background details on anybody you need.

There are professional background detail organizations that have setup on the internet and have built massive databases that contain information on almost everyone out there. You are able to search through their databases to find out information on anybody you wish.

When you run an online background search, you will get lots of information - this includes address details, employment info and history, marriage details, court and criminal records and other information on the person. I'm always impressed to see how much you can find out about someone. Expect to pay a fee to run a background check, but it's actually quite inexpensive. You can also purchase a membership which will grant you access to unlimited searches for a one-time fee.

One fast method to check to see if you can discover some info for free is to use Google and type in the person's name using quotations (ex: "Frank McDonald"). Also type in the city that the persons lives in if you know it (ex: "Mark Green" Seattle). Hit the search button and have a look at the results.

Realistically this probably won't turn up very much useful information, however it's worth a shot. If there has been any information published on the individual on the internet then Google can find it for you.

Utilizing an online personal background check is an easy way to find out full details on anybody's history and will give you the results in just a couple of minutes. It's a handy tool to have access to.

Running an online background check isn't complicated - you just type in the person's name and you're off to the races.

Click here to check out a free sample search to see how it works!

Article Source: http://EzineArticles.com/?expert=Grant_Dougan

Wednesday, March 25, 2009

How to Clear the Trademark Hurdle

The U.S. Trademark Office receives over 1 million applications each year from businesses and individuals hoping to trademark a name for their precious new products, services and companies. How can you avoid doing a face plant on the fast track to trademark approval? Here are a few tips to help you clear the trademark hurdle.

Start with a Long List

With thousands of names fighting for a trademark each month, the chances that any one name is available are extremely slim.

That's why it's important when developing a new brand name to compile a long list of potential options. On any given project, most naming companies will generate 400 to 600 names and then narrow that list down to 15 or 20 names that are truly unique and memorable.

In my experience, out of a list of 20 supposedly unique names, at least half will already be trademarked and therefore off limits. That's why it's imperative to have a lots of good options to choose from before you begin the trademark process.

Get Some Help

You may ask, "But coming up with a half dozen names was tough enough, how am I supposed to come up hundreds?" Good question.

Here's a good answer: Use a team of 5 to 7 people to generate ideas. Give each person a goal of 50 names. Have them work alone and as a group. Seven times 50 equals 350 names. Voila! You've got your long list.

Give Yourself a "Distinct" Advantage

The U.S. Trademark office recognizes a "spectrum of distinctiveness," where the more unique the name, the easier it is for the owner be granted exclusive trademark rights.

On this spectrum, the easiest names to trademark are invented words like Google or Haagen-Dazs followed by suggestive names like BlackBerry or Amazon. The most difficult names to trademark are descriptive/generic names such as EasyPrint or Furniture Warehouse.

The Trademark Office frowns on descriptive and generic names because they can just as easily describe a host of competing products as well as your own. So if you're serious about securing a trademark for your new product or company, give yourself a distinct advantage by making the name as unique and distinctive as possible.

Don't Fall In Love

Many first-time new product namers fall into the same trap. They come up with a name that they fall madly in love with. So smitten are they that no other name will possibly do. This is the one forever and ever.

That is until the trademark attorneys break the bad news. The name of their dreams is betrothed to another. Already spoken for. The wedding's off.

That's why you can't afford to fall head-over-heels over a single name. Have at least 10 or 15 potential names you're willing to seriously consider. It's the only way to avoid getting left at the trademark alter.

Do a Preliminary Trademark Search

Once you have a short list of 15 or so favorite names, do a preliminary trademark search at the U.S. Patent and Trademark Office website (http://www.uspto.gov). Click on "Trademarks" and "Search TM Database". Then click on "New User Form Search (Basic)".

Search for each of the names on your list. You'll quickly discover which names are already in use. By clicking on each result you can see if the name falls in the same product classification as your own. If it does, remove it from your list of favorites.

Hire a Good IP Attorney

After doing a preliminary trademark search you should be left with at least a two or three excellent names for your new product or company. While it's possible to apply for a trademark yourself, I recommend hiring a good Intellectual Property (IP) attorney to file the trademark application. Successfully applying for a trademark in the proper classifications can be tricky and having a pro on your side can greatly expedite the process. Working hard to come up with unique names and doing a preliminary trademark search will make your attorney's job a lot easier - and your final bill a lot lower.

Cross the Finish Line a Winner

If you follow these simple guidelines - generate lots of potential names; don't fall I love with a single option; do a preliminary trademark search; and hire an attorney to file the application - you'll not only clear the trademark hurdle, you'll cross the brand name finish line a winner.

Jerry Stueber is Founder and CEO of Brain Donor - a strategic branding company serving corporations worldwide. Visit his website at http://www.brain-donor.com/services.cfm

Article Source: http://EzineArticles.com/?expert=Jerry_Stueber

Trademark Symbols - What to Use and When

The use of trademark symbols is governed by federal regulation, federal law, and even state law. The symbols include the following:

1. ™, which stands for trademark
2. SM, which stands for service mark
3. ®, which stands for registered trademark

While the use of trademark symbols differ under foreign laws depending upon the jurisdiction, this article will focus on use of trademark symbols within the United States.

The ™ and SM can be used with a mark by anyone who is claiming rights to that mark. There is no need to have a federal registration with the United States Patent and Trademark Office (USPTO) in order to use either the ™ or SM symbols. Instead, a belief that the entity owns a distinctive mark as used in connection with certain goods or services is sufficient.

The use of the ® symbol does have specific requirements. This traditional trademark signifies ownership of a federal registration. This mark may be used once the trademark or service mark is actually registered with the USPTO on either the Principal or Supplemental Register of the USPTO. It is important to recognize that merely filing an application with the USPTO, withstanding an opposition, or having the mark approved for publication is insufficient to warrant use of the ® symbol. Only upon actually receiving a Certificate of Registration from the USPTO can the owner of that trademark or service mark be permitted to use the ® symbol. In addition, the federal registration symbol should only be used in connection with the goods or services that are listed within the certificate of registration.

That said, foreign countries have their own laws with regard to the use of the registered ® symbol. Therefore, it is important to determine which countries use the ® symbol to indicate that a mark is registered in their country before assuming that the owner of the mark has a USPTO trademark. For example, such countries as China, Germany, and the Netherlands also use the ® symbol.

One who improperly uses the federal registration symbol with a deliberate intent to deceive or mislead the public may be liable for fraud. Although fraudulent intent is usually required, one should not use the ® symbol unless permitted by law. Improper uses may include use based upon state trademark registration, placement on an entire mark or portion thereof despite the registration pertaining to something otherwise, use on the mark relating to goods to which the registration does not pertain, or use despite the registration having been recently expired or cancelled.

Just as proper trademark monitoring and protection is critical to ensure that trademark rights persist, use of the appropriate trademark symbol is also important. Therefore, knowing whether to use the ™, SM, or ® symbol and at what point in your trademark use will be critical.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm focused on complex litigation, intellectual property matters, internet law and trademark registration and prosecution. Speak with a trademark registration attorney today to learn more about what trademark symbol to use and when to properly to use it

Article Source: http://EzineArticles.com/?expert=Brian_A._Hall

Tuesday, March 24, 2009

Are Special Purpose Vehicles (SPVs) Legal?

A special purpose vehicle (SPV) or a special purpose entity (SPE) is a legal entity created by a (sponsoring) firm for a specific and limited purpose: To house a risk, to carry out some transactions, to own assets, to minimize risks and to maximize profits for the sponsoring firm, sometimes by taking advantage of differences in the legal, regulatory or accounting environment.

There are usually no offices, management or employees. SPEs often consist of a set of legal documents. They can be financing subsidiaries, or a holding company, a limited liability company, a new corporation, a trust, or a partnership. Only imagination is the limit.

SPEs are usually "bankruptcy remote". If the sponsoring firm has financial problems, its creditors cannot seize the assets of the SPE.

Are special purpose vehicles (SPVs) legal?

SPVs are perfectly legal, and almost all major (and well respected) corporations use them. It is not the SPV itself; it is the way it is used that can be illegal.

Special purpose entities are used in financial risk management, as they are excellent ways to segregate specific activities (risks) from a firm's core operations. By isolating high risk projects from the parent organization and by giving to new investors the opportunity to take a share of a very specific risk in a firm with a simple and clear balance sheet (as it is created for a single purpose only, and there are no debt obligations), SPEs definitely can help both, firms and investors.

According to the European System of Central Banks (ESCB), SPEs can be investment funds, financial vehicle corporations, financial corporations engaged in lending, financial holding corporations, security and derivative dealers and "others".

SPEs can be illegal, and can be used for tax evasion, avoidance of regulatory restrictions, money laundering, misstatement of earnings and concealment of problems.

Red flags Is the SPE incorporated in a tax haven? Why? Is the SPE incorporated in a place where there is no activity of the sponsoring firm? Is the SPE raising debt without making it obvious to the investors of the sponsoring firm?

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Article Source: http://EzineArticles.com/?expert=George_J_Lekatis

SPEs, QSPEs, VIEs and Sarbanes Oxley Audits After the Market Crisis

According to the Staff Audit Practice Alert No 3 from the Public Company Accounting Oversight Board, auditors of public firms that have to comply with the Sarbanes Oxley Act of 2002 should give specific consideration to the new and elevated risks after the current market crisis, and should adjust their audit procedures.

One of the areas of concern: Off-balance-sheet arrangements and Special Purpose Entities (again), especially the entities known as Qualifying Special Purpose Entity (QSPEs) and Variable Interest Entities (VIEs).

Qualifying Special Purpose Entity (QSPE)

According to the Statement of Financial Accounting Standards No. 140 from the Financial Accounting Standards Board, a QSPE is a legal vehicle (like a trust) that:

- It is distinct from the transferor

- Performs significantly limited activities (so banks, insurance firms, pension plans and investment firms are not sufficiently limited and can not become qualifying SPEs).

- May hold only financial assets transferred to it that are passive (the holder in making decisions only about servicing). Examples are passive derivative financial instruments, guarantees or rights to collateral.

Variable Interest Entities (VIE)

A VIE is often a holding company, created by another legal entity to hold assets or debt, to carry out operations or handle corporations, partnerships, trusts and limited liability companies. A VIE usually does not have the capital to support itself, so by design it is supported by another entity. The "primary beneficiary" (that has a controlling financial interest in the variable interest entity) consolidates the VIE (assets, liabilities, and profit).

There are several types of "variable interest" like loans, leases, call options, equity investments, written put options, forward contracts, derivatives, guarantees, credit enhancements etc.

According to the FASB Staff Position (FSP) FAS 140-4 and FIN 46(R)-8, public companies must disclose more about transfers of financial assets to QSPEs and VIEs.

Primary beneficiaries, servicers, holders of significant variable interests, transferors and sponsors are primarily affected.

According to the Public Company Accounting Oversight Board, the tough economic environment after the current market crisis led public companies to provide guarantees and financial support to QSPEs and VIEs. They have a "variable interest" or have increased their exposure to the above described entities, and perhaps they gave become a "primary beneficiary".

Their investors have a need to know. Their auditors have the obligation to ask the proper questions. The disclosures about transfers of financial assets in VIEs and QSPEs are meaningful and necessary.

Become a Certified Sarbanes-Oxley Expert (CSOE). Our distance learning and online certification program costs US$ 147. What is included in this price:

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Article Source: http://EzineArticles.com/?expert=George_J_Lekatis

Monday, March 23, 2009

The Making Homes Affordable Program


Using money from the "Troubled Asset Recovery Program" (TARP) legislation passed last year to bail out the banks, President Obama has enacted a plan through the Treasury Department to help "at-risk" homeowners by giving incentives that will enable you to refinance directly with your current lender at today's low interest rates and help keep you in your home. The eventual goal of this "Homeowner Stabilization Plan" is designed to rewrite the terms of approximately 9 -10 million mortgages to provide assistance for "at-risk" homeowners who might otherwise lose their home without new mortgage terms. Over $100 billion dollars have been allocated to support the implementation of this plan. Homeowners with eligible mortgages held by Fannie or Freddie will be eligible for refinancing. Homeowners with private mortgages may be eligible for subsidized loan modifications. The plan has now been initiated as of March 4, 2009, but only accepts borrowers who entered into their loans prior to January 1, 2009. The last date that the plan is currently slated to accept new participants is December 31, 2012.

The Nuts and Bolts of the Program

If your mortgage is held by Fannie or Freddie, you may be eligible to refinance if 31% of your monthly income is greater than or equal to the monthly payment on a 30 year fixed mortgage at the current market rate. The property in question must have lost market value to the point where you have less than 20% equity, and are thereby unable to refinance on the open market. While properties with some negative equity (that are slightly "underwater") are eligible, the loan cannot be for more than 105% of the market value of the property.

If your mortgage is NOT held by Fannie or Freddie, or, if it is and and you don't meet one or more of the other criteria, you may be eligible for a five (5) year loan modification. The goal of the modification is to reduce your monthly payment to 31% of your gross (pre-tax) monthly income. This is accomplished by temporarily reducing the interest rate on the loan. If the interest rate required to reduce the monthly payment to 31% of income is less than the payment on a 30 year fixed loan at the current market rate, the interest rate on the loan is then gradually stepped back up on a yearly basis until it matches the current market rate at that time of participation.

In trying to get to a monthly payment that is 31% of your income, the lowest effective interest rate that a lender may offer is 2%. If a 2% interest rate does not result in a monthly payment that is 31% of your income, the lender might, in some circumstances either extend the term of the loan or forego principle on the loan. Principle forbearance might be on a permanent basis, but more likely it will be on a temporary basis resulting in an eventual balloon payment.

The major distinction between these two types of mortgages under the MSA is that 1) mortgages held by Freddie and Fannie could be eligible for refinancing and 2) Mortgages that are privately held may qualify for loan modification.

There is a widely held notion, fueled perhaps by the lack of valid information on the MSA, that it is only available to homeowners with mortgages held by Freddie Mac and Fannie Mae. Although the MSA makes a distinction between Freddie and Fannie mortgages and private mortgages, the relief available is actually very similar. The MSA categorizes Freddie and Fannie mortgages separately from other mortgages, because Freddie Mac and Fannie Mae are now, in effect, owned by the federal government and must conform to the direction of the Treasury Department.

* TARP and the MSA

The power to implement the MSA was given to the Treasury Department under the TARP legislation. TARP was passed by Congress in January of 2008. Although known for the bailout of major investment banks, TARP also has a provision related to troubled mortgages.

Indeed, TARP provides the Treasury Department the means by which to leverage better rates from mortgage companies. Under the guidelines for the MSA put out by Treasury thus far, if a lender has received any financial assistance under TARP (most mortgage lenders), the lender is obligated to participate in the MSA and to renegotiate new terms for struggling mortgage holders.

Under § 2 (9)(A), TARP defines "troubled assets" as,

Residential or commercial mortgages and any securities obligations or other instruments that are based on or related to such mortgages, that in each case was originated or issues on or before March 14, 2008, the purchase of which the Secretary [of Treasury] determines promotes financial market stability.

TARP, § 2 (9)(A.)

Thus, the definition of "troubled assets" to be purchased by the Treasury explicitly includes residential or commercial mortgages ... originated or issued on or before March 14, 2008." Id.

TARP delegates the implementation of the program to Treasury, providing that the Treasury will develop its own regulations in implementing what "troubled assets" to purchase. TARP. Section 101 (Purchases of Trouble Assets) provides for the Treasury to determine what troubled assets to purchase and under what guidelines:

Authority - The Secretary is authorized to establish the TARP to purchase and to make and fund commitments to purchase, troubled assets from any financial institution, on such terms and conditions as are determined by the Secretary.

TARP § 101 (a) (1)

Thus, TARP gave the Secretary of the Treasury the authority to determine what "troubled assets" to purchase and under what guidelines. It is under this framework that the MSA was developed and announced by President Obama in February, 2009, and now implemented.

* Goals and Guidelines

The following is a highlight of what information is now available to consumers. The MSA is aimed at "at risk" mortgages. The primary goal is to " provide access to low-cost refinancing for responsible homeowners suffering from falling home prices." Department of the Treasury.

One of the reasons for implementation of the MSA is that mortgage rates are currently at historically low levels, providing homeowners with the opportunity to reduce their monthly payments by refinancing. But under current rules, most families who owe more than 80 percent of the value of their homes have a difficult time securing refinancing. (For example, if a borrower's home was worth $200,000, he or she would have limited refinancing options if he or she owed more than $160,000.) Thus, millions of responsible homeowners who put money down and made their mortgage payments on time have - through no fault of their own - seen the value of their homes drop low enough to make them unable to access these lower rates. The MSA is designed to help people in such situations.

For many families, a low-cost refinancing could reduce mortgage payments by thousands of dollars per year. For example, consider a family that took a 30-year fixed rate mortgage of $207,000 with an interest rate of 6.50% on a house worth $260,000 at the time. Today, that family has $200,000 remaining on their mortgage, but the value of that home has fallen 15 percent to $221,000 - making them ineligible for today's low interest rates that generally require the borrower to have 20 percent home equity. Under the Treasury refinancing plan, that family could refinance to a rate near 5.16% - reducing their annual payments by over $2,300.

Working with the FDIC, other federal banking and credit union regulators, the FHA and the Federal Housing Finance Agency, the Administration has developed guidelines for sustainable mortgage modifications for all federal agencies and the private sector - bringing order and consistency to foreclosure mitigation. The guidelines include detailed protocols for loss mitigation as well for identifying borrowers at risk of default.

The Treasury Department has also issued the following summary of the benefits they expect to make available to eligible homeowners under the MSA:

* Focusing on Homeowners At Risk: Anyone with high combined mortgage debt compared to income or who is "underwater" (with a combined mortgage balance higher than the current market value of his house) may be eligible for a loan modification. This initiative will also include borrowers who show other indications of being at risk of default. Eligibility for the program will sunset at the end of three years.

* Reaching Homeowners Who Have Not Missed Payments: Delinquency will not be a requirement for eligibility. Rather, because loan modifications are more likely to succeed if they are made before a borrower misses a payment, the plan will include households at risk of imminent default despite being current on their mortgage payments.

* Common Sense Restrictions: Only owner-occupied homes qualify; no home mortgages larger than the Freddie/Fannie conforming limits will be eligible. This initiative will go solely to supporting responsible homeowners willing to make payments to stay in their home - it will not aid speculators or house flippers.

* Special Provisions for Families with High Total Debt Levels : Borrowers with high total debt qualify, but only if they agree to enter HUD-certified consumer debt counseling. Specifically, homeowners with total "back end" debt (which includes not only housing debt, but other debt including car loans and credit card debt) equal to 55% or more of their income will be required to agree to enter a counseling program as a condition for a modification.

* Shared Effort to Reduce Monthly Payments: Treasury will partner with financial institutions to reduce homeowners' monthly mortgage payments.

- The lender will have to first reduce interest rates on mortgages to a specified affordability level(specifically, bring down rates so that the borrower's monthly mortgage payment is no greater than 38% of his or her income).

- Next, the initiative will match further reductions in interest payments dollar-for-dollar with the lender, down to a 31% debt-to-income ratio for the borrower.

- To ensure long-term affordability, lenders will keep the modified payments in place for five years. After that point, the interest rate can be gradually stepped-up to the conforming loan rate in place at the time of the modification. Note: Lenders can also bring down monthly payments to these affordability targets through reducing the amount of mortgage principal. The initiative will provide a partial share of the costs of this principal reduction, up to the amount the lender would have received for an interest rate reduction.

- "Pay for Success" Incentives to Servicers : Servicers will receive an up-front fee of $1,000 for each eligible modification meeting guidelines established under this initiative. Servicers will also receive "pay for success" fees - awarded monthly as long as the borrower stays current on the loan - of up to $1,000 each year for three years.

- Responsible Modification Incentives: Because loan modifications are more likely to succeed if they are made before a borrower misses a payment, the plan will include an incentive payment of $1,500 to mortgage holders and $500 for servicers for modifications made while a borrower at risk of imminent default is still current.

- Incentives to Help Borrowers Stay Current : To provide an extra incentive for borrowers to keep paying on time under the modified loan, the initiative will provide a monthly balance reduction payment that goes straight towards reducing the principal balance on the mortgage loan. As long as the borrower stays current on his or her payments, he or she can get up to $1,000 each year for five years.

- Home Price Decline Reserve Payments: To encourage lenders to modify more mortgages and enable more families to keep their homes, the Administration -- together with the FDIC -- has developed an innovative partial guarantee initiative. The insurance fund - to be created by the Treasury Department at a size of up to $10 billion - will be designed to discourage lenders from opting to foreclose on mortgages that could be viable now out of fear that home prices will fall even further later on. This initiative provides lenders with the security to undertake more mortgage modifications by assuring that if home price declines are worse than expected, they have reserves to fall back on. Holders of mortgages modified under the program would be provided with an additional insurance payment on each modified loan, linked to declines in the home price index. These payments could be set aside as reserves, providing a partial guarantee in the event that home price declines - and therefore losses in cases of default - are higher than expected.

Source: Dept. of Treasury.

5. Plan Effectiveness and Other Guidelines.

The Treasury has further announced guidelines to maximize the effectiveness of the plan:

o Protecting Taxpayers: To protect taxpayers, the Homeowner Stability Initiative will focus on sound modifications. If the total expected cost of a modification for a lender taking into account the government payments is expected to be higher than the direct costs of putting the homeowner through foreclosure, that borrower will not be eligible. For those borrowers unable to maintain home ownership, even under the affordable terms offered, the plan will provide incentives to encourage families and lenders to avoid the costly foreclosure process and minimize the damage that foreclosure imposes on lenders, borrowers and communities alike. Moreover, Treasury will not provide subsidies to reduce interest rates on modified loans to levels below 2%.

o Counseling and Outreach to Maximize Participation: Under the plan, the Department of Housing and Urban Development will also make available funding for non-profit counseling agencies to improve outreach and communications, especially to disadvantaged communities and those hardest-hit by foreclosures and vacancies.

o Creating Proper Oversight and Tracking Data to Ensure Program Success: Fannie Mae and Freddie Mac will be responsible - subject to Treasury's oversight and the Federal Housing Finance Agency's conservatorship - for monitoring compliance by servicers with the program. Every servicer participating in the program will be required to report standardized loan-level data on modifications, borrower and property characteristics, and outcomes. The data will be pooled so the government and private sector can measure success and make changes where needed. Treasury will meet quarterly with the FDIC, the Federal Reserve, the Department of Housing and Urban Development and the Federal Housing Finance Agency to ensure that the program is on track to meeting its goals.

o Limiting the Impact of Foreclosure When Modification Doesn't Work: Lenders will receive incentives to take alternatives to foreclosures, like short sales or taking of deeds in lieu of foreclosure. Treasury will also work with the GSEs to provide data on foreclosed properties to streamline the process of selling or redeveloping them, thereby ensuring that they do not remain vacant and unsold.

The Treasury has also announced guidelines, recognizing that "clear and consistent guidelines for modifications are a key component of foreclosure prevention." Dept. of Treasury.

These include:

* Working with the FDIC, other federal banking and credit union regulators , the FHA and the Federal Housing Finance Agency, the Administration is in process of developing guidelines for sustainable mortgage modifications for all federal agencies and the private sector - bringing order and consistency to foreclosure mitigation. The guidelines will include detailed protocols for loss mitigation as well for identifying borrowers at risk of default; the Administration expects to announce these guidelines by Wednesday, March 4 th

* Applying Guidelines Across Government and the Private Sector: Treasury will develop uniform guidance for loan modifications across the mortgage industry by working closely with the FDIC and other bank agencies and building on the FDIC's pioneering role in developing a systematic loan modification process last year. The Guidelines - to be posted online - will be used for the Administration's new foreclosure prevention plan. Moreover, all financial institutions receiving Financial Stability Plan financial assistance going forward will be required to implement loan modification plans consistent with Treasury guidance. Fannie Mae and Freddie Mac will use these guidelines for loans that they own or guarantee, and the Administration will work with regulators and other federal and state agencies to implement these guidelines across the entire mortgage market. The agencies will seek to apply these guidelines when permissible and appropriate to all loans owned or guaranteed by the federal government, including those owned or guaranteed by Ginnie Mae, the Federal Housing Administration, Treasury, the Federal Reserve, the FDIC, Veterans' Affairs and the Department of Agriculture. In addition, these guidelines will apply to loans owned or serviced by insured financial institutions supervised by the Office of the Comptroller of the Currency, the Office of Thrift Supervision, the Federal Reserve, the Federal Deposit Insurance Corporation and the National Credit Union Administration.

* Requiring All Financial Stability Plan Recipients to Use Guidance for Loan Modifications: As announced last week, the Treasury Department will require all Financial Stability Plan recipients going forward to participate in foreclosure mitigation plans consistent with Treasury's loan modification guidelines.

* Allowing Judicial Modifications of Home Mortgages During Bankruptcy for Borrowers Who Have Run Out of Options: The Obama administration will seek careful changes to personal bankruptcy provisions so that bankruptcy judges can modify mortgages written in the past few years when families run out of other options. (These have not yet been implemented - see below.)

* How Judicial Modification Works: When an individual enters personal bankruptcy proceedings, his mortgage loans in excess of the current value of his property will now be treated as unsecured. This will allow a bankruptcy judge to develop an affordable plan for the homeowner to continue making payments. To receive judicial modifications in bankruptcy, homeowners must first ask their servicers/lenders for a modification and certify that they have complied with reasonable requests from the servicer to provide essential information. This provision will apply only to existing mortgages under Fannie Mae and Freddie Mac conforming loan limits, so that millionaire homes don't clog the bankruptcy courts. (Please see below, the details of this part of the Plan have not yet been approved by Congress.)

* Bolster FHA and VA Authority to Protect Investors and Ensure Loan Modifications Occur: Legislation will provide the FHA and VA with the authority they need to provide partial claims in the event of bankruptcy or voluntary modification so that holders of loans guaranteed by the FHA and VA are not disadvantaged.

Treasury Dept.

6. FHA and "Community Support"

The Treasury has also implemented guidelines under the MSA to provide for:

* Ease Restrictions in Federal Housing Administration Programs, Including Hope for Homeowners: The Hope for Homeowners program offers one avenue for struggling borrowers to refinance their mortgages. In order to ensure that more homeowners participate, the FHA will reduce fees paid by borrowers, increase flexibility for lenders to modify troubled loans, permit borrowers with higher debt loads to qualify, and allow payments to servicers of the existing loans.

* Strengthening Communities Hardest Hit by the Financial and Housing Crises: As part of the recovery plan signed by the President, the Department of Housing and Urban Development will award $2 billion in competitive Neighborhood Stabilization Program grants for innovative programs that reduce foreclosure. Additionally, the recovery plan includes an additional $1.5 billion to provide renter assistance, reducing homelessness and avoiding entry into shelters.

Treasury Dept.

7. Modification of Mortgage by Bankruptcy Trustee

As noted above, part of the Plan is to give bankruptcy trustees the power to rewrite mortgages. Congress is still negotiating the question of what power a bankruptcy trustee will have to modify a mortgage in bankruptcy. Currently, a trustee does not have the power to change the terms of a mortgage to avoid foreclosure. One intention of the MSA is to give bankruptcy trustees the power to modify terms to avoid foreclosure where it is possible, however Congress is still debating the details of that prong of the Plan.

All sources of info for this article were compiled from the most current guidelines available from the Treasury Department and no information was taken from private sources.

Jim Tily is a legal researcher specializing in real estate law

Currently, there is a widespread lack of information and confusion regarding the program described in this article

There is a useful website where you can use an interactive form to determine if you are eligible

http://homeaffordplan.com bridges the information gap by offering a general summary that is both abstract but complete and substantive, and offers the only form currently available to the public which allows them to determine, based on the dollar amounts specific to their situation, exactly what they are eligible for

To see if you might be eligible under the Plan, please visit: http://www.homeaffordplan.com

Article Source: http://EzineArticles.com/?expert=Jim_Tily

Now You Lien It - Then, You Won't

I've been reading long, gas-baggy recorded documents like Declarations of Easements and Restrictive Covenants for so long that my eyes instinctively roll back, revolting at their recognition of the familiar stack of paper. These instruments are particularly prevalent in shopping centers and office and industrial parks, and mixed use projects that incorporate varieties of commercial product types. They mandate owner maintenance and repair, cleanup after a fire or other casualty, insuring each lot's common area, and other assorted obligations pertaining to their respective parcels. The declarations customarily make, courtesy of the Declarant, dire threats for non-compliance with this and that obligation, including an owner's failure to reimburse the Declarant or another intervening owner (called an "intervenor" here) if it must step in and do the work of maintenance, repair, cleanup, payment of delinquent taxes or special assessments, affording of liability insurance, and so forth. The instrument typically provides that the failure to reimburse the intervenor for fixing the mess neglected by the uncooperative or disengaged land owner will constitute grounds to impress a lien for reimbursement against the miscreant's parcel that "may be foreclosed in the manner of a mechanic's lien." Here's one illustration:

Any sums remaining unpaid in accordance with Article [number] or Section [number], together with interest calculated at three percent (3%) above the prime rate charged by Wells Fargo Bank, N.A., or any successor thereto, or at the then-highest annual interest rate allowed by law (whichever is less), may be secured by a lien on the parcel of the owner in default and may be perfected in accordance with the laws of the State of Arizona, which lien shall retain the priority of title of this Agreement and may be foreclosed upon within one (1) year of the date that the lien is perfected.

Sounds awfully impressive, even though that text fails to describe the type of lien contemplated. I'm thinking, however, that this is wholly unenforceable claptrap, noble statement of remedial purpose notwithstanding. Item First: the manner of lien perfection goes unexpressed, perhaps with good reason. There are only two means in Arizona to perfect a lien on commercial real property (excluding fixtures filings, and a certificate of purchase creating a lien for the repayment of "funded" real property taxes and assessments) validly held by a non-governmental entity-via the mechanic's lien statutes and the mortgage/trust deed statutes. I can dispose of the latter avenue for a wannabe lien in a few words. A consensual lien against real property must be signed by its owner or someone authorized by law to do so on behalf of that owner. Merely participating in a larger development of property governed by CC&Rs--however assertive these may be--does not constitute a grant of authority by a land owner sufficient to constitute an intervenor his attorney-in-fact to legitimize recording a foreclosure-worthy, mortgage-type lien.

Item Second: One assumes, since there's no "proxy deed of trust" available to a fellow owner in a "restricted" commercial development, that someone contemplated a lien like that perfect-able and executable under our State's mechanic's lien regime found in Chapter 7 of Title 33 of the Arizona Revised Statutes. On the surface, one further assumes that the aggrieved intervenor procedurally first records a Notice and Claim of Lien, followed by a suit to be brought within the period set forth in the Declaration after the date of recording that Notice. Whoops. Apollo 13 to Houston-we have a problem.

Issue One: The mechanic's lien statutes [A.R.S. §33-992.01(B)] require, "as a necessary prerequisite to the validity of any claim of lien," that a preliminary 20-day notice be served upon the owner, any general contractor or any construction lender. See also A.R.S. §33-981(D). There's one, tiny, very limited exception to this requirement-the subcontractor who's physically out on the parcel where the work is being done. So say the declaration requires, in the event of casualty, that the affected owner of that damaged lot has to make repairs or "scrape the improvements" to eliminate an eyesore. If the neglectful owner doesn't do it, and the intervenor takes care of the matter, unless the helpful owner was physically performing the work on the lot himself, there's no mechanic's lien enforcement rights, no matter what the declaration says. Have a look at Performance Funding, LLC v. Arizona Pipe Trade Trust Funds, 203 Ariz. 21, 49 P.3d 293, a 2002 Arizona Court of Appeals decision, for the (currently) final word on that limited exception to satisfying the state's 20-day notice service statute.

Issue two implicates the timing aspect of the enforcement of the wannabe lien described in the declaration; while the CC&Rs drafters can choose any deadline they wish by which the intervenor can pursue reimbursement against the miscreant owner, Arizona courts won't indulge the claimant unless he hews to the mechanic's lien enforcement deadline-assuming that the intervenor even gets that far, which I doubt it will. In Arizona Department of Water Resources v. Rail N Ranch Corporation, 156 Ariz. 363, 752 P.2d 16 (1987), our Court of Appeals filleted DWR when it tried to foreclose, after two years had lapsed, under a wannabe lien under a state statute providing that "the [department's] lien shall have the force and effect of a mechanic's lien" and "may be foreclosed in the same manner." Yeah, sure, ruled the court-even if Arizona's legislature can "incorporate by reference" certain provisions of the mechanic's lien statutes, DWR doesn't get to substitute its own period of limitations on enforcement, inconsistently with the "incorporated" statutory scheme. If you don't file your suit within 180 days after recording your lien claim, as the mechanic's lien enforcement statute provides, you've snoozed too long. (Note, however, the appeals court did not declare the DWR lien to be void from its inception; it just dismissed the department's untimely enforcement of its purported lien.)

Issue three is whether it's fantastic to believe an intervenor can use the lien rights in Chapter 7 of Title 33 at all. You don't have to be a licensed contractor to avail yourself of the right to lien under A.R.S. Sections 33-983(A) or -987 (subject to compliance with the 20-day notice, etc.) for this fundamental reason: Both statutes provide that "a person who labors" upon someone else's lot can impress a lien. The words "contractor" and "subcontractor" and "architect"-licensed persons, appear throughout Chapter 7; so the legislature understood the distinction between licensed and unlicensed individuals and companies. That is what the Court of Appeals held in Performance Funding, LLC v. Arizona Pipe Trade Trust Funds; the union's funds did not have to be licensed to impress the lien, although they could not enforce what they filed.

So can you do something about this CC&Rs mess, and breathe life into what seems an unenforceable provision in your declaration? Well, do you need to do anything more in Arizona, if, as declarant or another owner subject to the CC&Rs, the intervenor can obtain a money judgment on a claim of failure to reimburse, and can record that judgment lien against the miscreant owner, to encumber its title until the intervenor is paid? It is not sufficient just to let a "declaration lien" (assuming the intervenor records an instrument reciting in the lien notice that it is based upon A.R.S. Sections 33-983(A) or -987, and that service of the 20-day notice was appropriately done, together with the text of the declaration) ride as a cloud on title to the other owner's property. Under the common law, once the lien is stale (after six months without filing suit), it will be deemed unenforceable-and becomes a "groundless lien" under the provisions of A.R.S. Section 33-420.

Mike Widener has practiced law in Arizona for 25 years, and is a Certified Specialist in Real Estate Law, according to the Board of Legal Specialization of the State Bar of Arizona. Mike is listed in SuperLawyers (2008 Southwest Edition) and in 1000 People to Know in [Arizona] Commercial Real Estate, 2008-09. Mike's real estate portfolio contains holdings in the States of Florida, Arizona, Tennessee and the Commonwealth of Virginia. You can contact him at (602) 274-1100 or at mnwidener@gmail.com. Check out our blog at http://www.TerraIncogito.com

Article Source: http://EzineArticles.com/?expert=Michael_N_Widener

Sunday, March 22, 2009

Defective Products and Product Liability Cases

When a person buys a product, the purchaser expects it to perform in a manner that does not cause injury. If the product is defective, the product will fail and the user may be seriously injured or even killed. If a person buys a product and suffers an injury in the course of its proper use, that person may be entitled to money damages for the injuries suffered by filing a claim for product liability against the manufacturer and other parties along the chain of commerce. A product is said to be faulty or defective if it causes some injury or damage to a person as a result of a defect in the product, or its labeling, or the way the product was used. The manufacturer, the distributor, the supplier, the retailer and others involved in the selling the product are often liable for injuries caused and the resulting damages.

Examples of product liability cases could include: airbags; seat belts; brakes; cribs; flammable products; child products; drugs; power tools and equipment; and other inherently dangerous products. In certain instances these cases can also form the basis of a class action lawsuit.

There are three types of product defects: design defect; manufacturing defect; and/or marketing defect. A design defect occurs when the product is not safe for its intended use. In other words, the manufacturer fails to design a product safe for its intended use. The manufacturer could have anticipated the possible risk and the product could have been designed differently to avoid the risk. A manufacturing defect is a defect which happens during the manufacturing process. It is different from a design problem. The product can fail or malfunction if there is a manufacturing defect despite being safely designed. A manufacturing defect happens if the manufacturer uses materials of an inferior quality or uses the wrong materials. The failure of a manufacturer to exercise proper quality control can also result in a manufacturing defect. Manufacturing defects are defects that were not intended. The third reason for a product malfunction is an marketing defect. A marketing defect is the failure of the manufacturer to warn the user of a danger or provide proper instructions for use of the product. Marketing defects result from the manner in which a product is sold. The manufacturer has the obligation to warn users of any potential danger from the use of the product and also provide proper instructions. The common element in nearly all faulty or defective products cases is negligence on the part of the manufacturer. However, in certain instances, the manufacturer of an unreasonably dangerous product might be held strictly liable for any damage caused by use of that product without the need to show the manufacturer was negligent.

Generally, all states have laws that allow compensation to persons injured by defective products. The defect may be obvious or not-so obvious. These compensable damages could include: past and future medical; surgical and hospital bills; past and future lost wages; pain and suffering; permanent disabilities; out of pocket expenditures; loss of consortium for a spouse and in certain cases, punitive damages.

A faulty product can also result in death. Death due to a faulty product can give rise to a claim for wrongful death. If the product fails or malfunctions and the user dies as a result of the failure or malfunction, the survivors of the user can file a suit for wrongful death against the manufacturer of the product. In addition to a claim for wrongful death, the manufacturer will also be liable under the product liability laws. An injured party who institutes a wrongful death case might also recover money damages for: past and future doctor, hospital, therapy and medical bills; past and future lost wages; out of pocket expenditures; pain and suffering; loss of life's enjoyment; and a loss of consortium claim for a spouse. Additionally, an economist might have to be hired to determine the extent of any future lost wage or loss of opportunity claim.

If you or someone you know has been seriously injured or has died as a result of using a defective product, please visit http://www.selectcounsel.com to see how we might be able to assist you

Attorney Richard Hastings, for the past two and one half decades, has been helping injured clients and families collect millions of dollars in losses ranging from motor vehicle accidents to wrongful death, to medical malpractice. He is the founder of Selectcounsel, LLC, a free service that helps you find one of the best lawyers in your area and is the author of the books "How To Find A Great Lawyer" and "Understanding And Improving The Value Of Your Personal Injury Case"

Please visit http://www.SelectCounsel.com to see how they can find you one of the best lawyers in your area for your serious injury or medical malpractice case

Selectcounsel, LLC is a FREE national service that helps people with serious personal injury and medical malpractice cases find one of the best lawyers in their area to represent them. The lawyers we recommend are independently rated by attorneys and judges as being among the very best in their field of practice. Visit us at selectcounsel.com to see how we can help you find one of the best lawyers for your case

Article Source: http://EzineArticles.com/?expert=Richard_Hastings

Motorcycle Accidents and Potentially Responsible Parties

Motorcycle accidents occur each day on roads all over the country. While many accidents are simple "fender benders," others may result in substantial property damage and serious injury or even death. Although motorcyclists are often stereotyped as reckless and fast drivers, it is negligent automobile drivers who cause most motorbike accidents. An injured victim of a motorcycle accident can seek damages from the responsible party for the injuries, damages and pain suffered as a result of the accident. The victim must show that the defendant was negligent and responsible for the injuries and other damages that were sustained. A motorcycle accident lawsuit must also be filed before the expiration of applicable statutes of limitation which varies from state to state. The victim can seek compensation for related medical expenses, loss of income or earning potential, partial or permanent disability, psychological suffering, and property damage.

Some motorcycle accidents can be so severe that they result in death. Each state has its own law on fatal accidents and wrongful death claims. Although independent of each other, these laws share some common features. If a death is caused by a motorcycle accident, there will losses associated with the wrongful death including medical expenses incurred as a result of the accident, funeral and burial expenses, pain and suffering of the deceased, future financial support to the heirs, loss of love, society, and companionship.

For a wrongful death claim to arise from a fatal motorcycle accident, the accident must have been caused by another person who has acted negligently. The must be a wrongful act or an act of negligence in the part of the other person. Other responsible parties could include: the motorcycle manufacturer; or the maker of any part of the motorcycle; or other vehicle involved in the accident. The person or party responsible must have adequate insurance or assets to provide the basis of a recoverable legal claim.

There are different laws that apply to a motorcycle accident cases depending on the circumstances of the accident and the jurisdiction in which the accident took place. Sometimes the other driver or person might not be responsible for the wrongful death from the fatal accident. The cause of the accident will determine the type of wrongful death case, and the responsible party. It could have been caused due to a defect in the motorcycle's manufacturing or design. For instance, the breaks fail to work when applied. In such cases, the law of product liability will apply. In certain cases, you can seek damages for wrongful death from the designer or manufacturer. Sometimes, the mechanic who did not repair the vehicle property can be held liable if the improper repairing is a factor which caused the accident. Even poorly maintained roads, messy and confusing construction, unclear signage, improperly designed roads and similar problems can be the cause of a fatal accident. The Government agencies responsible for the roads and highways can be liable for damages in such cases. However, there are special rules that apply to lawsuits against government entities which can have very short notice provisions which must be met in order to have a viable claim.

If you or someone you know has been involved in a motorcycle accident, it is recommended that you seek legal advice immediately.

Attorney Richard Hastings, for the past two and one half decades, has been helping injured clients and families collect millions of dollars in losses ranging from motor vehicle accidents to wrongful death, to medical malpractice. He is the founder of Selectcounsel, LLC, a free service that helps you find one of the best lawyers in your area and is the author of the books "How To Find A Great Lawyer" and "Understanding And Improving The Value Of Your Personal Injury Case"

Selectcounsel, LLC is a FREE national service that helps people with serious personal injury and medical malpractice cases find one of the best lawyers in their area to represent them. The lawyers we recommend are independently rated by attorneys and judges as being among the very best in their field of practice. Visit us at http://selectcounsel.com/ to see how we can help you find one of the best lawyers for your case

Article Source: http://EzineArticles.com/?expert=Richard_Hastings

Saturday, March 21, 2009

Online Patent Attorney - A Legal Guide For Patents

All the new inventions that are marketable and are expected to make profits must be protected and an online patent attorney is the best person to help you get that protection.

You have successfully come out with a new invention. You are sure that your invention is going to create a good market and fetch you profits. There is a great chance that your idea can be copied and misappropriated by others. To safeguard your invention from such misuse, get it patented with the help of an online patent attorney.

What Is Patent Law?

This Law protects the novel idea of an inventor by providing him the exclusive property rights on his invention. The absolute rights given to the inventor are called patent rights. It thereby prevents theft and abuse of the patented idea and helps the inventor face the competition. In case anyone disobeys the rules, the inventor holds the right to sue the offender.

Any inventor can apply for a patent- either directly or through a patent attorney. Applying and getting it is a mind-numbing process. It may take years to get your application cleared. Seeking the help of an experienced lawyer to deal with such cases will prove beneficial. It will reduce the cost and time of acquisition.

How To Choose

A counsel plays a crucial role in acquiring a patent. He will represent you and your idea. Hence, it is necessary to approach the right person. It will be useless to appoint a person who does not have any knowledge in the field of your invention. Advocates differ from each other regarding the skills that are required in different fields. A patent lawyer with a background in biology cannot help you in any way for your invention that is related to the field of engineering. A specialized lawyer with a technical background can help you in a better way. Make sure to enquire about the qualifications and credentials before making a selection. You can conduct a simple search on the USPTO website and select a registered online patent attorney with the requisite capabilities to deal with your case. An experienced professional may charge you a higher fee.

Although there are many options to select a counsel, the best and easiest would be to choose an online patent attorney. Online dealing is quite fast and reduces the time involved. You can save the time that is wasted on the number of visits to the lawyer's office every time.

Once you approach an expert, he will conduct a thorough enquiry regarding the uniqueness of your invention. If he finds it satisfactory, he will take up the case and proceed to acquire the rights as soon as possible. Hence, a patent lawyer is considered an inventor's best friend.

Planning a patent for your new invention? Know in advance how patent law can protect your idea and why you have to seek help of a registered expert. Get a few important tips to approach an online patent attorney and know how to select a good professional

Article Source: http://EzineArticles.com/?expert=Albertina_Belmont

Does Amazon's Kindle Violate Patent by Discovery Channel Founder?

Amazon has run into more problems with its Kindle electronic book reader. This time, the company behind the Discovery Channel is claiming the technology violates one of their patents and has filed a lawsuit.

Nothing is worse than pursuing a highly anticipated product launch only to see said loss followed by legal issues. Amazon is going through this exact scenario. When it released its new, updated Kindle, it probably never imagined the problems it would have.

The first issue was the text-to-speech ability of the device. Authors went ballistic over it. They claimed the reading of the text was an attempt to get around paying royalties. The claim may be technically with merit, but it is also a bit ludicrous. Ask yourself this - how many people like listening to a book being read in a monotone voice? Amazon diffused the issue by agreeing to turn off the technology for books whose authors objected.

Now Amazon faces a much bigger issue. Discovery Communications, Inc. has filed a patent suit against the company for violating patents related to the technology used in the Kindle. The company is known to most people as the "Discovery Channel" found on television. Well, it appears that the founder of the company, John Hendricks, received a number of patents in 2007 that allegedly apply to the current situation.

So what exactly is the patent? It is not entirely clear yet. What we do know is it has to do with how ebooks are encrypted when distributed to electronic reading devices like the Kindle. This is, of course, a very hazy description of a very specific patent, so discussing the merits of the complaint is a bit premature. Still, Amazon has to be wondering what is coming down the line next - locust?

Does this mean the end of the new Kindle? It is possible, but extremely unlikely. Why? Discovery doesn't compete with Amazon and certainly doesn't seem to have any particular motivation for causing Amazon to have problems with the Kindle. If Discover doesn't want the Kindle put to bed, what could it want? You guessed it - money!

Many patent infringement lawsuits are not intended to stop one party from using something that might infringe on the patent of a second party. Usually, the goal is far more oriented to scoring a royalty that pays a consistent stream of money for a prolonged period of time. This happens throughout the field of intellectual property and is undoubtedly what Discovery is seeking here. Will they get it? Only time will tell.

Gerard Simington writes articles about intellectual property law and other legal subjects for FindAnAttorneyforMe.com

Article Source: http://EzineArticles.com/?expert=Gerard_Simington

Friday, March 20, 2009

How to Dominate Your Court Case

Most fathers getting divorced hire an attorney tell that attorney all their grievances, and then they sit back and hope for the best as the hired attorney does the work. These are the same fathers that are shocked when they don't win their case. These fathers allow themselves to be minor figures in their own cases, allowing someone else to make their case when they would be more effective speaking for themselves. Time and time again I get phone calls from fathers just like the ones I have described above asking me how to turn their case around. I always tell them one thing:

Dominate your case.

You will be more effective and get more of what you want if you dominate your case. You can do this by taking over control of your case instead of handing over the 'reigns' to someone else. Well, if you make a list, and if you stop to think about it, there are many things you can do to prepare your case. Here are some simple steps you can take immediately to start dominating your case.

Dependent upon your specific case, you can:

* Keep a chronological diary of events, starting with the beginning of your relationship and all events that contributed to the current situation;
* Clearly write down exactly what you want and why;
* Obtain sworn affidavits from people that will attest to your abilities as a Father;
* Draft a spread sheet listing assets and debts;
* Close all joint accounts to protect your credit and assets and seek the services of a Pro-Father Attorney if you so choose.

You become the dominant presence in your case. If you can define what you're seeking whether you're bringing a simple motion before the court, going through an evaluation, or working on a trial situation, in 45 days or less you'll be a dominant force to reckon with. The players in the case know who you are, what you do and why they ought to do "business" with you.
E-mail dennis@fathershelphotline.com

Article Source: http://EzineArticles.com/?expert=Dennis_Gac

No More "TV Tears" For Florida Truck-Accident Lawyers

The Florida Bar is cracking down on scores of personal injury lawyers who are using unethical practices to advertise their services through dramatized "testimonials" from personal injury accident victims. The Florida Bar prohibits the use of these types of emotional-based testimonials and even considers any clients gained through this type of promotion to be a violation of their ethical code.

While the use of this type of advertising has not been limited to Florida attorneys in the past, the Florida Bar is leading the way to protect its citizens from this type of "ambulance chasing." The trauma associated with motor vehicle injuries makes these types of clients especially vulnerable to these types of emotional appeals.

A major category within these types of personal injury claims come from accidents involving commercial trucks. Florida truck-accident lawyers know the trauma that truck accidents can inflict on the families, friends and loved ones of victims of these types of incidents. Accidents involving trucks pose a unique set of challenges and complexities that are not present in the majority of other types of vehicle crashes. It is important, therefore, that you work with an attorney that has experience in handling these types of cases.

While many trucking accidents occur at high speeds on the highway, even low-speed trucking accidents can have devastating results. Because of their size and weight, the consequences of a trucking accident are typically much more damaging than those involving smaller vehicles. A large commercial truck can weigh more than 80,000 pounds and can go up to 75 feet in length. Accidents involving trucks cause more serious injuries and fatalities than any other type of motor vehicle collision.

Twelve percent of all motor vehicle fatalities in the United States are caused by truck accidents. Accidents involving tractor trailer trucks are especially dangerous. Ninety-eight percent of the fatalities involving trucks are the passengers or driver in the other vehicle as opposed those in the truck. According to a 2006 Federal Motor Carrier Safety Administration report, there are approximately 141,000 accidents involving trucks every year. The report also noted that over 50% of these accidents were caused directly by the truck driver.

A decision to enlist the legal services of a Florida truck accident lawyer should be based on the reputation and experience of the attorney and not on the emotional-based appeals of 'testimonial' advertising. It is important that the lawyer or firm you choose to represent your case is familiar and experienced in dealing with the unique complexities that truck accidents involve.

The Federal Motor Carrier Safety Regulations require trucking companies to keep a variety of documents or items following an accident involving one of their trucks. As a result, most trucking companies will often have a company representative or investigator at the scene of the accident within hours, sometimes even while the involved vehicles are still at the scene of the accident and possibly even before law enforcement officials arrive at the accident location. Thus, it is very important for the victim of a truck accident to contact a qualified attorney immediately following an accident involving a tractor-trailer or any other type of commercial motor vehicle. If you are a Florida resident or if the accident occurred in the state of Florida, a qualified Florida truck-accident lawyer will be able to provide you with the legal guidance you need to protect your rights as a victim.

As our highways become more and more congested, the number of serious accidents involving trucks is almost certain to rise. In the unfortunate occurrence that you or a loved one are ever involved in an accident involving a tractor trailer or commercial motor vehicle in the state of Florida, it is highly recommended that you contact a reputable Florida truck-accident lawyer immediately.

Florida is leading the way on keeping the ethical practices of truck-accident lawyers in check. The Florida Bar has taken action against at least 34 lawyers across Florida that it found had accepted referrals from testimonial-based advertising sources.

Tim Wright - http://floridatruckaccidentlawyer.info

Article Source: http://EzineArticles.com/?expert=Tim_D_Wright

Learn the Truth About IRS Asset Seizure and Wage Garnishments

A garnishment is essentially a court order that orders the seizure of assets, usually monetary or liquid assets, from a person to pay off a debt. The most common of these is the automatic withholding of the debtor's wages or income. This also happens when a creditor fails to satisfy the debt taken, and goes to the court which can issue a judgement against him. This judgement us usually in the form of asset seizure.

Different states in the Union habe different garnishment laws. In most circumstances, 25% of one's disposable earnings or assets can be garnished. This usually continues until the entire debt has been cured.

There are a number of situations that can lead to this unfortunate state of affairs. Among other things is failure to pay the IRS taxes owed, skipping out on child support or even some common bills. Again, what the creditor can do and the powers of the court in this situation vary from state to state and from situation to situation.

In the case of taxes, the state or the federal government becomes the creditor and can use the legal powers at its disposal to seize assets. This is accomplished through a process is known as wage garnishment. Most garnishments or asset seisures requires court orders. The courts work with the particular employers and are supposed to notify the creditor before any withholding of wages is done. In most cases, the garnishment is not the first option but the last one and is only exercised when all other options have been exhausted.

In many cases, garnishment occurs when the IRS sends communiques to the person and the person either ignores them or chooses not to respond. We recommend that you respond to every letter or phone call originating from the IRS because failure to do so can result in asset seizure. The IRS maintains very accurate records and can track the names, workplaces, banks and dwelling residences of anyone they are interested in.

Sometimes garnishment can come about due to unfortunate circumstances that are quite normal such as alimony to a separated spouse. These are quite common and form a sizeable chunk of all annual garnishments.

Asset seizure can be very traumatic especially in tough economic times as the ones we are living in now. But the good news is that the powers to seize your assets is limited. The Consumer Credit Protection Act puts a cap on the amount of wages that can be taken from someone. The law allows the defendant to keep part of his income for living expenses. The IRS in particular allows one to fill out an income and expense assessment form that tells them how much you earn in a month and how much your total expenses are. The difference may then be garnished but not anything more. This law has one advantage and that is in limiting the extent of the powers wielded by the creditors againsts an individual.

How are the assets determined?

This is determined by the amount of disposable earnings of the employee who is subject to asset seizure. The court deducts the legal taxes for unemployment, social security and also insurance. Then the disposal income left, which is no more than 25% of the employees' disposable earning is subjected to garnishment.

The law allows up to 50% of the employees' disposable income to be seized in this manner. While there are restrictions on garnishment amount, these do not apply in case of court orders of oustanding federal debts and cases of bankruptcy. Whenever there is a conflict between federal law and state law regarding the amounts to be garnished, the smaller garnishment the smaller amount prevails.

Irene James is a consultant who speciallizes in court orders and she recommends what to do in case you are subject to IRS garnishments or court levies

Article Source: http://EzineArticles.com/?expert=Irene_James

Knowing More About Wage Garnishments, IRS Levies and Legal Holds

Sometimes, people owe debts such as IRS back taxes, federal or local state taxes, back child support or even alimony from a spouse. In this scenario, the creditor obtains a court order to attach a portion of their wages to satisfy that debt. This is what we call garnishment and it varies from state to state and from situation to situation.

Neverthless, this is done as a last resort. In many cases, other means of contacting the individual and resolving the issue have been attempted and been found fruitless. This is then where the creditor, faced with no other alternative, approaches the courts for help. The courts then determine that the defendant is unwilling to voluntarily settle the debt and thus is subject to a court order to garnish their wages.

There are many other occasions that may necessitate this. One is delinquent student loans which is more common than people care to imagine. Garnishment is as traumatizing as it is embarrassing and can wreak havoc especially in tough economic times like these.

The good news is that the law that governs garnishments also protects the debtor in many ways. This is because of the assumption that the creditor has a tendency to harass the debtor or to take more than is fair. That is why the Consumer Protection Act puts a stipulation that one's wages cannot be garnished beyond a certain percentage. The court also requests the debtor to fill out an income and expenditure assessment form which tells the court exactly how much to garnish. In most cases, no more than 25% of one's disposable income may be garnished unless it is in cases of bankruptcy.

It is also recommended that the debtor make an honest attempt to contact the creditor and try and work something out that does not involve the courts. This is an excellent way to avoid wage garnishment.

Fighting wage garnishments
Sometimes, the debtor may be able to fight off garnishment or legal holds in certain circumstances:

1. If he (debtor) can provide documentation showing that he or she has already settled the debt in full.
2. If the debtor can prove that there is already an agreement in place to pay the debt and the debtor has not defaulted on the agreement.
3. The amount of the debt is wrong.
4. The debt has already been discharged in a bankruptcy hearing.

Then there are also times when it is impossible to collect. These are:

1. When the entity owed is no longer in business or has ceased operations.
2. The death or permanent disability of the defendant or in this case the debtor.

As we have mentioned earlier, wage garnishments are only used when all other options have been exhausted. The creditor may have tried to contact the debtor to work out an agreement where he (debtor) can voluntarily pay the debt but may have failed to gain such an agreement. The creditor then turns to the courts.

The credior must also prove that he or she has previous been unable to recover the debt using a voluntary agreement between him (or her) and the debtor

Irene James is a consultant who speciallizes in court orders and she recommends what to do in case you are subject to IRS garnishments or court levies

Article Source: http://EzineArticles.com/?expert=Irene_James