Duty to inform and report • Except to the extent the terms of the trust provide otherwise, a trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests. Unless unreasonable under the circumstances, and unless otherwise provided by the terms of the trust a trustee shall promptly respond to a qualified beneficiary’s request for information related to the administration of the trust. • Except to the extent the terms of the trust provide otherwise, a trustee: • upon request of a qualified beneficiary, shall promptly furnish to the beneficiary a copy of the portions of the trust instrument which describe or affect the beneficiary’s interest; • within 60 days after accepting a trusteeship, shall notify the qualified beneficiaries of the acceptance and of the trustee’s name, address, and telephone number; • within 60 days after the date the trustee acquires knowledge of the creation of an irrevocable trust, or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settler or otherwise, shall notify the qualified beneficiaries of the trust’s existence, of the identity of the settler or settlers, of the right to request a copy of the trust instrument, and of the right to a trustee’s report as provided in Subsection (3); and • shall notify the qualified beneficiaries in advance of any change in the method or rate of the trustee’s compensation. • A trustee shall send to the qualified beneficiaries who request it, at least annually and at the termination of the trust, a report of the trust property, liabilities, receipts, and disbursements, including the amount of the trustee’s compensation or a fee schedule or other writing showing how the trustee’s compensation was determined, a listing of the trust assets and, if feasible, their respective market values. Upon a vacancy in a trusteeship, unless a co-trustee remains in office, a report must be sent to the qualified beneficiaries by the former trustee, unless the terms of the trust provide otherwise. A personal representative, conservator, or guardian may send the qualified beneficiaries a report on behalf of a deceased or incapacitated trustee. • A qualified beneficiary may waive the right to a trustee’s report or other information otherwise required to be furnished under this section. A beneficiary, with respect to future reports and other information, may withdraw a waiver previously given. What Is a Trustee?A trustee is a person or firm that holds and administers property or assets for the benefit of a third party. A trustee may be appointed for a wide variety of purposes, such as in the case of bankruptcy, for a charity, for a trust fund, or for certain types of retirement plans or pensions. Trustees are trusted to make decisions in the beneficiary’s best interests and often have a fiduciary responsibility to the trust beneficiaries. The trustee acts as the legal owner of trust assets, and is responsible for handling any of the assets held in trust, tax filings for the trust, and distributing the assets according to the terms of the trust. Both roles involve duties that are legally required. The Trustee’s Duty to Inform and ReportGiven the technical complexities of irrevocable trust administration, including the administration of irrevocable life insurance trusts (“ILITs”), trust litigation over breaches of fiduciary duty continues to rise. A trustee’s compliance with the duty to inform and report can be critical to avoiding liability. Most states impose a fiduciary duty on trustees of irrevocable trusts to inform and report to the beneficiaries regarding the trust accounts and administrative. Depending on the trust agreement and the applicable state law, this duty may range from mandating that the trustee notify beneficiaries of a trust’s existence and provide annual reports, to leaving all such disclosure and reporting activities in the trustee’s sole discretion. These variations in state laws and increasingly complex trust agreements can present unique compliance challenges and potential liability exposure, particularly for non-professional trustees who lack the necessary experience and administrative infrastructure. A trustee’s duty to inform and report protects the interests of trust beneficiaries and can limit the trustee’s liability. This duty applies to trustees of all irrevocable trusts, including ILITs, even if the trust creator (grantor) is still living. As there is no uniform set of rules for compliance, however, each trustee must review the applicable state law, the trust agreement, and the trust’s circumstances to determine the specific reporting obligations. Due to legal nuances in understanding state statutes and trust agreements, non-professional trustees should consult with legal counsel to determine the scope of, and ensure compliance with, their disclosure obligations. Even when not required, trustees also may want to consider non-mandatory disclosures to beneficiaries to take advantage of available liability and other protections under state law. Holding the Trustee AccountableThe law imposes certain informational requirements on trustees. Trustees have a duty generally to keep beneficiaries fully apprised regarding the trust’s activities. For example, a trustee must send a notice to all trust beneficiaries within 60 days after the settler of a revocable trust dies, informing the beneficiaries that they have a right to receive a copy of the trust instrument. In addition, the trustee must provide an annual accounting to the beneficiaries on request, showing the trust assets and liabilities, and the receipts and disbursements made during the accounting period. While there is no express requirement that a trustee provide an inventory of the trust assets to the beneficiaries within a specific period of time, the trustee should certainly do so in a timely manner. A trustee’s failure to keep the beneficiaries informed constitutes a breach of the trustee’s fiduciary duties for which the trustee can be removed, with court approval. Reasons to Inform & Report For ComplianceState law may require a trustee to disclose the existence of a trust and other information to the beneficiaries, as well as provide written accounts of the trust’s assets, liabilities, receipts, and disbursements on a periodic basis and/or upon the occurrence of certain events (such as a change in trustee). ProtectionGenerally, the duty to inform and report serves numerous practical considerations for both trustees and beneficiaries, which, depending on state law, include: • Providing trust beneficiaries with sufficient information to enforce the trustee’s duties, preserve the trust, and protect their beneficial interests; • Providing trustees with protection and closure with regard to specific transactions or for a certain time frame, particularly if no court approval is sought for the transaction or accounting; • For changes in trustees, clearly delineating the actions and decisions of the prior trustee and providing full knowledge to the new trustee of the trust’s assets and activities; • Evidencing good faith in trust administration and management (often, individual trustees will not be liable for breaches of fiduciary duty if they acted in good faith); and • Starting the statute of limitations to run for actions again the trustee for breaches of fiduciary duty or other causes related to the matters disclosed or accounted for. No Single Set of RulesThere is no single set of rules governing the duty to inform and report. The scope of the duty has developed over time, state-by-state, based on case law and the Uniform Trust Code (“UTC”),[i] a model code used by many states to develop their specific trust laws.[ii] Thus, state rules vary considerably and include both mandatory provisions and default rules, which a trust agreement can modify or delete. Also the specific requirements for disclosure and reporting, including the forms to use and the protections available, will depend on the trust’s terms, the interest, age, and capacity of a beneficiary, and the size, type, and complexity of trust assets or transactions. Some CommonalitiesDespite variations, the reporting and disclosure rules generally fall into several broad categories. Accordingly, using the UTC as a guide, many trustees could find themselves subject to one or more of the following obligations: • Keep Beneficiaries Reasonably Informed: The trustee must actively report to “qualified” beneficiaries regarding the trust’s administration and material facts necessary for them to protect their interests. Generally, “qualified beneficiaries” are current beneficiaries, those next in line as beneficiaries after the current beneficiaries’ interests terminate, and anyone entitled to income or principal if the trust terminates. • Provide Periodic Reports (Accounts): The trustee must send to current beneficiaries and permissible beneficiaries of trust income or principal, and to other beneficiaries who request it, a written report that includes the trust property, liabilities, receipts, and disbursements, the source and amount of the trustee’s compensation, and a list of the trust assets and, if feasible, their market values. The reports must be sent at least annually and at trust termination. • Respond to Beneficiary Requests for Information: The trustee must promptly respond to any beneficiary’s request for information related to the trust’s administration, unless unreasonable under the circumstances and furnish a copy of the trust agreement to any beneficiary who requests a copy. For these purposes, a “beneficiary” is essentially anyone with any interest in the trust, whether present, future, contingent, or vested. • Notify Beneficiaries of Trust’s Creation and Related Information: Within 60 days after a trustee learns of the creation of an irrevocable trust or a change in a revocable trust to an irrevocable trust, the trustee must notify the qualified beneficiaries of the trust’s existence, the identity of the grantor(s), and the beneficiaries’ right to request a copy of the trust instrument and to receive a trustee’s report. • Notify Beneficiaries of Acceptance of Trusteeship: Within 60 days after accepting a trusteeship, the trustee must notify qualified beneficiaries of the acceptance and trustee’s name, address, and telephone number. • Notify of Changes in Trustee’s Compensation: The trustee must notify qualified beneficiaries in advance of any change in the method or rate of the trustee’s compensation. Trust Limits on Reporting ObligationsDespite the benefits offered by making trust disclosures, many grantors wish to keep trust information confidential, due to privacy concerns and the worry that the disclosure of information to a beneficiary may create disincentives for him or her to attain an education, obtain employment, or achieve other social and professional milestones. To address these concerns, the trust disclosure laws of most states consist primarily of default rules, which a grantor may waive or modify in the trust agreement. For example, under the UTC, the trust agreement can modify or waive the duty to (1) respond to a beneficiary’s request for a copy of the trust, (2) provide annual reports to qualified beneficiaries, and (3) advise a beneficiary under age 25 of the trust’s existence, the trustee’s identity, and the beneficiary’s right to request trustee reports. The UTC, however, makes mandatory the duty to respond to a qualified beneficiary’s request for trustee reports and other information reasonably related to the trust’s administration (with an option to make this mandatory only for beneficiaries who have attained age 25). Other “optional” provisions the UTC would make mandatory include the duty to notify qualified beneficiaries of the trust’s existence, the trustee’s identity, and their right to request trustee reports (can be made mandatory only for beneficiaries age 25+), as well as the duty to notify beneficiaries of the acceptance of a trusteeship (again, can be mandatory only for beneficiaries age 25+). However, even among states that have adopted the UTC, there has been a significant lack of uniformity regarding enactment of the UTC’s mandatory disclosure requirements. Some states permit “quiet” or “silent” trusts, which allow the grantor to waive all or almost all disclosures to the beneficiaries, perpetually or for some period of time (such as until after the grantor passes, or a beneficiary attains a desired age). Other states allow the grantor to designate a “designated representative”, surrogate, or alternate person to receive certain or all mandatory or other disclosures on behalf of the trust beneficiaries, which attempts to balance the need for disclosure and the desire for privacy. Gun Shows And The Second Amendment Utah Probate Code Lawyer Free ConsultationWhen you need legal help with Utah Probate Code 75-7-811, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Filing For Divorce While Living Abroad Help A Loved One Make A Power Of Attorney Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/utah-probate-code-75-7-811/
0 Comments
Employers are not required by law to offer benefits such as health insurance coverage, pension plans, and paid vacations. These types of benefits can be quite costly for small businesses, at least at first glance, so why do employers offer them? Since payroll is already the largest line item on most employers’ balance sheets, and recruiting new employees costs time and money, you want to make sure you’re able to attract and retain the best talent possible. This is particularly relevant in competitive fields where workers have multiple options. Employers who can afford to offer benefits usually have a wider selection of candidates from which to choose. But small businesses must manage expenses and cash flow wisely, so business owners must approach these considerations cautiously and prudently. After all, great benefits only go so far if the company spends more money on them than it takes in. Also, employers who offer benefits also are bound by certain laws and regulations. Regardless of whether there are violations, employers often need to pay advisers and attorneys to help them create benefit plans that comply with the law. Below are some considerations to weigh when deciding if providing employee benefits will also benefit your business. Some Pros For Offering Employee Benefits• A benefits package, especially one that offers good health insurance coverage (including dental and vision), helps attract and retain quality employees. • Offering health insurance has been shown to decrease absenteeism and improve employee health and morale; those with coverage are more likely to seek preventative care and live overall healthier lives. Reasons Not to Offer Benefits• Providing benefits costs more for small employers than for large ones, both in terms of higher prices because of lesser buying power, and due to relatively higher costs of administration. Construction ContractsWhether you’ve rented a car, leased an apartment, or signed up for a credit card, chances are you’ve signed many contracts as an adult. However, you might not have encountered a construction contract yet, and it may seem rather foreign when you first start to read through it. While it’s best to have an experienced construction law attorney advise you on the particulars, below are a few special considerations to think about when you’re getting ready to sign a construction contract. Construction Contracts in GeneralA contract is a legally enforceable agreement between two or more parties. Each state has its own laws regarding the requirements for and enforcement of contracts, but many contracts must be in writing. For example, contracts for construction that could take more than a year to complete must be in writing. Similarly, construction loan financing and contracts involving the sale of improved real estate must also be written down. While some construction contracts may be oral, it’s always best to have your contract in writing so that it’s clear what each party is responsible for, what the payment terms are, and what happens if something goes wrong. If there’s a dispute down the road, a court can more easily decide what’s fair under a written agreement. An important consideration with regard to construction contracts is determining who the parties are and what their obligations are to each other. While some agreements may be straightforward – an understanding between you and a handyman – other construction contracts can be more complicated with the addition of a general contractor, subcontractors, architects, designers, and even government entities. For example, if your construction contract only mentions some obligations between you and a general contractor, you could face serious problems if the general contractor fails to pay any of its subcontractors. In these situations, a subcontractor may come after you for payment (even if you’ve already paid the general contractor for the work), and could place a mechanic’s lien on your property to enforce payment. However, if your contract had anticipated these types of situations, you would have been better protected against this whole ordeal. Because construction projects can involve so many different people, it’s important for the contract to articulate who these actors are and the aspects of the project for which each is responsible. That way, if something goes wrong, such as a construction defect issue, the contract can help guide the parties to some sort of equitable resolution. Types of Construction Contracts: Allocating Risk and Making Payments • Lump Sum or Fixed Price Contract: In these contracts, the owner pays a total fixed price to the contractor for the whole construction project. This puts much of the risk on the contractor since he or she may underestimate the cost to complete the project. • Time and Materials: Here, the owner pays the contractor on an hourly or daily rate, plus an amount to cover materials used. This allows you to pay for the time worked, but may encourage the contractor to take more time with the project. • Cost Plus: In these arrangements, you pay all of the allowed, actual construction expenses, plus an amount to cover the contractor’s profit. With cost plus contracts, the owner should include limits on the amount a contractor can bill. Regardless of the exact type of construction contract you use, there are many issues to anticipate, and it’s important to know exactly what you’re paying for, how changes will be handled, and what the timeline for completing construction will be. Business Lawyer Free ConsultationWhen you need legal help with your business in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506 via Michael Anderson https://www.ascentlawfirm.com/offering-employee-benefits/ Regardless of the political issues currently swirling around immigration reform, it is important to have a grasp of basic immigration law principles when defending personal injury cases. A few recent cases are illustrative of the effects that an undocumented worker’s status can have on claims of personal injury, plaintiff employment, or similar claims. Hoffman v. NLRB, 122 S.Ct. 1275 (2002). In this case, the employer petitioned for review of, and the National Labor Relations Board (NLRB) cross-applied for enforcement of, an NLRB order awarding an undocumented worker backpay from date of his illegal termination until the employer discovered he was unauthorized to work. A panel of the Court of Appeals for the District of Columbia Circuit ordered enforcement. Following grant of a petition for rehearing en banc, the Court of Appeals again granted enforcement. On appeal, the U.S. Supreme Court, Chief Justice Rehnquist, held that federal immigration policy foreclosed the NLRB from awarding backpay to an undocumented worker who had never been legally authorized to work in the United States. Madeira v. Affordable Housing Foundation, 315 F.Supp.2d 504 (S.D. New York 2004). Here, an injured undocumented worker’s status did not prevent him from recovering compensatory damages for defendants’ violation of New York’s Scaffold Law. His undocumented immigrant status was relevant to determining whether lost wages were appropriate and how much should be awarded. Silva v. Wilcox, 223 P.3d 127 (Colo. Ct. App. 2009). Here, to the extent that a defendant is able to establish that a plaintiff immigrant is not authorized to be in the United States and has secured employment by violating the law or is in violation of the law in some other particular manner related to such employment, so that the plaintiff is unlikely to remain in this country throughout the period of claimed lost future income, the jury should be provided that information in determining whether to award damages for lost future wages. During discovery, an attorney may wish to direct written discovery to the plaintiff that asks about citizenship and immigration status. During the deposition of a plaintiff believed to be an undocumented immigrant, potential questions to ask include: Are you a U.S. Citizen? Where were you born? What is your immigration status? Are you legally authorized to work in the U.S.? If so, how is that documented? Have you ever applied for Medicare or Medicaid? (Don’t assume they haven’t – a Medicare audit last year revealed that people living in the U.S. illegally had collected over $120 million in Medicare benefits as of 2012. This could trigger Medicare Secondary Payer Act issues in the future.) You can also take the deposition of the employer. Always do this as a 30(b)(6), and always serve the notice as a Notice of Deposition Duces Tecum. You can also subpoena the documents beforehand using Rule 45. Ask them to provide a complete employee file, including hire documents. Define “hire documents” as the employment application, I-9 form, and any copies of documents inspected in conjunction with the I-9 form. (This is, of course, in addition to any wage loss documents you want to obtain, such as W2s, W4s, payroll information, etc.) Using best practices in the handling and workup of these cases can minimize carrier/defendant exposure by putting you in the best position for pretrial motions, including motions in limine. Of course, this raises the issue of what to do when defending a case and your client (defendant) is undocumented. For example, this problem arises when a driver hired by an employer turns out to be working illegally, and then causes an automobile accident while in the course and scope of his/her employment. First, try to exclude the defendant’s immigration status under Rule 401. Second, TXI Transportation v. Hughes, 306 S.W.3d 230 (Texas 2010) is extremely helpful. It held that neither the illegal immigrant status of a gravel truck driver, nor his use of a fake Social Security number to obtain his commercial driver’s license, was relevant to a negligent entrustment or hiring claim against the employer. It also held that the illegal immigrant’s status was inadmissible to impeach the driver’s testimony, and that erroneous admission of evidence relating to the driver’s immigration status was not harmless. Personal Injury Attorney Free ConsultationWhen you need legal help from a personal injury lawyer in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Top 10 Mistakes To Avoid In Your Divorce Case via Michael Anderson https://www.ascentlawfirm.com/immigration-issues-and-personal-injury-defense/ The prospect of ordinary people making guns at home on their 3-D printers seems scary. Even President Donald Trump, a strong Second Amendment supporter, has tweeted that it “doesn’t seem to make much sense.” Attorneys general in eight states sued to stop the website of Defense Distributed from publishing instructions for printing out plastic firearms. A federal judge recognized the harm Tuesday night and issued a temporary restraining order. But the attack on freedom of speech is also scary here. Even as he acted to block the gun plans, U.S. District Judge Robert S. Lasnik recognized there are “serious First Amendment issues” at play. Under current interpretations of the Second Amendment, the government could almost certainly prohibit unregulated home manufacture of guns. The First Amendment, however, might well protect the distribution of the computer code that functions as the recipe for the 3-D printers. The threshold question is whether computer code is a form of speech at all. This question raises philosophical questions about whether computer code written in a programming language is effectively an object not ordinarily regulated by the First Amendment or is more like a set of written instructions from one person to another, which would typically be considered a form of speech. The U.S. Supreme Court has never definitively answered this tricky question. But the lower courts have mostly held that code counts as speech. In an influential 2001 decision to that effect, the U.S. Court of Appeals for the 2nd Circuit said that “a recipe is no less ‘speech’ because it calls for the use of an oven, and a musical score is no less ‘speech’ because it specifies performance on an electric guitar.” That brings us to the second legal problem: whether speech that instructs the public how to commit a crime is subject to free-speech protection. Here, too, the Supreme Court has not given a definitive answer and the legal landscape in the lower courts is not that clear. In an important 2005 article, First Amendment scholar Eugene Volokh pointed out that some courts have held that free-speech law does not extend to cover “speech that knowingly facilitates bomb-making, book-making, or illegal circumvention of copyright protection.” Yet Volokh, who tends to prefer very strong free-speech protections, cast serious doubt on most of the rationales that could be used to prohibit speech that tells people how to commit crimes. In particular, he pointed out that such information often has other, noncriminal uses. And he strongly emphasized that the internet changes the landscape for such regulation, because sources outside the reach of law could almost always post the same information, which would then be available to American users notwithstanding any ban. The best way to think about the question is to ask whether the government should be able to ban “The Anarchist Cookbook” or other works that describe how to make Molotov cocktails or simple bombs. Logically, the answer is almost certainly not. How-to guides for criminal activity aren’t like classified information, such as how to build an atomic bomb or make a biological weapon. Gun Show LoopholeGun show loophole is a political term referring to the sale of firearms by private sellers, including those done at gun shows that do not meet federal background check requirements. This is dubbed the private sale exemption or “secondary market”. Federal law requires background checks for commercial gun sales, but not for private-party sales whereby any person may sell a firearm to an unlicensed resident of the same state as long as they do not know or do not have reasonable cause to believe the purchaser is prohibited from receiving or possessing firearms under Federal law. Under federal law, private-party sellers are not required to perform background checks on buyers, record the sale, or ask for identification, whether at a gun show or other venue. This is in contrast to sales by gun stores and other Federal Firearms License (FFL) holders, who are required to perform background checks and record all sales on almost all buyers, regardless of whether the venue is their business location or a gun show. Some states have passed laws to require background checks for private sales with limited exceptions. Access to the National Instant Criminal Background Check System (NICS) is limited to FFL holders. Since the mid-1990s, gun control advocates have campaigned for universal background checks. Advocates for gun rights have stated that there is no loophole, that current laws provide a single, uniform set of rules for commercial gun sellers regardless of the place of sale, and that the United States Constitution does not empower the federal government to regulate non-commercial, intrastate transfers of legal firearms between private citizens. ProvenanceSometimes referred to as the Brady bill loophole, the Brady law loophole, the gun law loophole, or the private sale loophole, the term refers to a perceived gap in laws that address what types of sales and transfers of firearms require records and or background checks, such as the Brady Handgun Violence Prevention Act. Private parties are not legally required by federal law to: ask for identification, complete any forms, or keep any sales records, as long as the sale does not cross state lines and does not fall under purview of the National Firearms Act. In addition to federal legislation, firearm laws vary by state. Federal “gun show loophole” bills were introduced in seven consecutive Congresses: two in 2001, two in 2004, one in 2005, one in 2007, two in 2009, two in 2011, and one in 2013. Specifically, seven gun show “loophole” bills were introduced in the U.S. House and four in the Senate between 2001 and 2013. None passed. In May 2015 Carolyn Maloney introduced H.R.2380, also referred to as the Gun Show Loophole Closing Act of 2015. As of June 26 it has been referred to the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. In March 2017, representative Maloney also introduced H.R.1612, referred to as the Gun Show Loophole Closing Act of 2017. In January 2019 she sponsored H.R.820 – Gun Show Loophole Closing Act of 2019. HistoryIn 1968, Congress passed the Gun Control Act (GCA), under which modern firearm commerce operates. The GCA mandated Federal Firearms Licenses (FFLs) for those “engaged in the business” of selling firearms, but not for private individuals who sold firearms infrequently. Under the Gun Control Act, firearm dealers were prohibited from doing business anywhere except the address listed on their Federal Firearms License. It also mandated that licensed firearm dealers maintain records of firearms sales. An unlicensed person is prohibited by federal law from transferring, selling, trading, giving, transporting, or delivering a firearm to any other unlicensed person only if they know or have reasonable cause to believe the buyer does not reside in the same State or is prohibited by law from purchasing or possessing firearms. In 1986, Congress passed the Firearm Owners Protection Act (FOPA), which relaxed certain controls in the Gun Control Act and permitted licensed firearm dealers to conduct business at gun shows. Specifically, FOPA made it legal for FFL holders to make private sales, provided the firearm was transferred to the licensee’s personal collection at least one year prior to the sale. Hence, when a personal firearm is sold by an FFL holder, no background check or Form 4473 is required by federal law. According to the ATF, FFL holders are required to keep a record of such sales in a bound book. The United States Department of Justice (USDOJ) said the stated purpose of FOPA was to ensure the GCA did not “place any undue or unnecessary federal restrictions or burdens on law-abiding citizens, but it opened many loopholes through which illegal gun traffickers can slip.” The scope of those who “engage in the business” of dealing in firearms (and are therefore required to have a license) was narrowed to include only those who devote “time, attention, and labour to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.” FOPA excluded those who buy and sell firearms to “enhance a personal collection” or for a “hobby,” or who “sell all or part of a personal collection.” According to the USDOJ, this new definition made it difficult for them to identify offenders who could claim they were operating as “hobbyists” trading firearms from their personal collection. Efforts to reverse a key feature of FOPA by requiring criminal background checks and purchase records on private sales at gun shows were unsuccessful. Those who sold only at gun shows and wanted to obtain an FFL, which would allow them to conduct background checks, were prohibited from doing so through question 18a on the ATF Form 7 (Application for Federal Firearms License)[48]. The April 2019 revision of the Form 7 removed this restriction, allowing them to obtain licenses. In 1993, Congress enacted the Brady Handgun Violence Prevention Act, amending the Gun Control Act of 1968. “The Brady Law” instituted federal background checks on all firearm purchasers who buy from federally licensed dealers (FFL). This law had no provisions for private firearms transactions or sales. The Brady Law originally imposed an interim measure, requiring a waiting period of 5 days before a licensed importer, manufacturer, or dealer may sell, deliver, or transfer a handgun to an unlicensed individual. The waiting period applied only in states without an alternate system that was deemed acceptable of conducting background checks on handgun purchasers. Personal transfers and sales between unlicensed Americans could also still be subject to other federal, state, and local restrictions. These interim provisions ceased to apply on November 30, 1998. Government studies and positionsFirearm tracing starts at the manufacturer or importer and typically ends at the first private sale regardless if the private seller later sells to an FFL or uses an FFL for background checks. Analyzing data from a report released in 1997 by the National Institute of Justice, fewer than 2% of convicted criminals bought their firearm at a flea market or gun show. About 12% purchased their firearm from a retail store or pawnshop, and 80% bought from family, friends, or an illegal source. An additional study performed by the Bureau of Justice Statistics, published in January of 2019, found that fewer than 1% of criminals obtained a firearm at a gun show (0.8%). Under Chapter 18 Section 922 of the United States Code it is unlawful for any person “except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms.” The federal government provides a specific definition of what a firearm dealer is. Under Chapter 18 Section 921(a)(11), a dealer is: According to a 1999 report by the ATF, legal private party transactions contribute to illegal activities, such as arms trafficking, purchases of firearms by prohibited buyers, and straw purchases. Anyone selling a firearm is legally prohibited from selling it to anyone the seller knows or has reasonable cause to believe is prohibited from owning a firearm. FFL holders, in general, can only transfer firearms to a non-licensed individual if that individual resides in the state where the FFL holder is licensed to do business, and only at that place of business or a gun show in their state. The January 1999 report said that more than 4,000 gun shows are held in the Utah annually. Also, between 50 and 75 percent of gun show vendors hold a Federal Firearms License, and the “majority of vendors who attend shows sell firearms, associated accessories, and other paraphernalia.” The report concluded that although most sellers at gun shows are upstanding people, a few corrupt sellers could move a large quantity of firearms into high-risk hands. They stated that there were gaps in current law and recommended “extending the Brady Law to ‘close the gun show loophole.'” Proposals put forth by Attorneys, which were never enacted, include: Facts about Gun ShowsClose the gun show loophole,” demands Handgun Control, Inc. The major obstacle to Congress’s complying with HCI’s wishes appears to be the desire of many Democrats to preserve gun shows as a campaign issue in the 2000 election. But if the voters learn the facts about gun shows, they will discover that there is no guns show loophole, no gun show crime problem and no reason to adopt federal legislation whose main effect would be to infringe on First and Second Amendment rights. Despite what some media commentators have claimed, existing gun laws apply just as much to gun shows as they do to any other place where guns are sold. Since 1938, persons selling firearms have been required to obtain a federal firearms license. If a dealer sells a gun from a storefront, from a room in his home or from a table at a gun show, the rules are exactly the same: he can get authorization from the FBI for the sale only after the FBI runs its “instant” background check (which often takes days to complete). As a result, firearms are the most severely regulated consumer product in the United States — the only product for which FBI permission is required for every single sale. Conversely, people who are not engaged in the business of selling firearms, but who sell firearms from time to time (such as a man who sells a hunting rifle to his brother‐in‐law), are not required to obtain the federal license required of gun dealers or to call the FBI before completing the sale. Similarly, if a gun collector dies and his widow wants to sell the guns, she does not need a federal firearms license because she is just selling off inherited property and is not “engaged in the business.” And if the widow doesn’t want to sell her deceased husband’s guns by taking out a classified ad in the newspaper, it is lawful for her to rent a table at a gun show and sell the entire collection. If you walk along the aisles at any gun show, you will find that the overwhelming majority of guns offered for sale are from federally licensed dealers. Guns sold by private individuals (such as gun collectors getting rid of a gun or two over the weekend) are the distinct minority. Yet HCI claims that “25−50 percent of the vendors at most gun shows are unlicensed dealers.” That statistic is true only if one counts vendors who aren’t selling guns (e.g., vendors who are selling books, clothing or accessories) as “unlicensed dealers.” Since every gun show takes place entirely within the boundaries of a single state, Congress has no legitimate constitutional basis, under its “interstate commerce” power, to attempt to control gun shows. Nevertheless, both houses of Congress have passed gun show legislation. The House bill does only what the gun control advocates claim to want: the imposition of federal background checks on personal sales at gun shows. Gun Lawyer Free ConsultationWhen you need legal help with gun law in Utah, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
The CFPB’s Effect On Foreclosures via Michael Anderson https://www.ascentlawfirm.com/gun-shows-and-the-second-amendment/ Intestate Share of Spouse75-2-102 Intestate share of spouse. Intestate Succession in UtahIf you die without a will in Utah, your assets will go to your closest relatives under state “intestate succession” laws. Here are some details about how intestate succession works in Utah. Which Assets Pass by Intestate SuccessionOnly assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name. Many valuable assets don’t go through your will and aren’t affected by intestate succession laws. Here are some examples: • property you’ve transferred to a living trust These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. What Property is Excluded or IncludedBefore going into detail about how to understand Utah’s intestacy laws, it’s important to realize that these laws only apply to some of what a person might have owned at death. Intestacy law only applies to property that would have passed by a Will (if that person had written one)–but this does not include assets that pass to people at death by beneficiary designation or joint tenancy, which can be most of what a person owned. • Retirement accounts All such assets pass automatically to the people named as beneficiaries or to the surviving joint owners or to the beneficiaries of a living trust. (If no beneficiary is named, or if the named beneficiary has already died, then these assets pass to the decedent’s estate–which means that they will be subject to intestacy laws.)Intestacy law applies to everything else owned by a person at death–such as bank accounts held in the name of the dead person, real property held individually or as a tenant in common, stocks and bonds held in investment accounts in that person’s name, and all of a person’s tangible personal property (furniture, clothing, cars, and the like). How Intestate Property is InheritedUtah’s intestacy law dictate who is going to inherit such assets and Utah’s probate laws determine how those assets are going to be transferred. Generally, if someone dies with a Will a court has to supervise the distribution of an estate. That’s what probate is, a process in which a judge verifies that a Will is valid (or if there is no Will, identifies the proper heirs) and, once the right people have been notified, the assets have been properly valued, and taxes and creditors have been paid, issues a court order allowing for the distribution of the estate. Dying without a Will doesn’t get you out of that process, it just means that instead of interpreting the decedent’s Will, the court is going to follow Utah’s intestacy laws to distribute the estate. In every state, though, estates that fall below a certain dollar limit don’t have to go through probate at all. If an estate is small enough, you don’t need a court order before being able to distribute that property to the proper people. So, if your spouse or parent dies without a Will, your first question is going to be whether or not you are going to need to open up a probate proceeding and get a court order before you can distribute the property.If a person’s assets fall below Utah’s small estates limit, you won’t need to open a probate proceeding in Utah to distribute the property, but if the decedent’s assets are more than this limit, you will need to open a probate proceeding to distribute the assets to those who stand to inherit. Understanding Intestacy LawsHere’s a list of definitions to help you sort through the relevant terms and understand your relationship to the decedent, and your claim on his or her assets: SpouseA spouse is a person who was legally married to the decedent, or, in some states, a Registered Domestic partner. A few states recognize common-law marriage, which means that a person who lived with the decedent as if married, and held themselves out to the world as that person’s spouse would have the same legal rights as a spouse in terms of inheritance. ChildA child is usually defined as a direct descendant of the decedent. That means child, grandchild, great-grandchild and so on. Legally adopted children are treated just like lineal descendants, so they count, too. And that means that once a child is legally adopted by another, that child’s legal ties to the birthparent are legally severed, which means that they don’t count for inheritance purposes. Children who were born after a parent dies count as children for inheritance purposes. Stepchildren who were never legally adopted don’t usually count as children for intestate purposes. Stepchildren who were adopted by a stepparent can still inherit from their biological parent, but this is dependent on state law. In some states, an un-adopted stepchild may qualify as an heir if certain conditions are satisfied, such as that the relationship with the parent started while the stepchild was a minor and continued throughout the parent’s lifetime and the parent would have adopted that child but there was some legal barrier to doing so (like the parent’s natural parent refusing to consent to such adoption). Outside of MarriageA child born outside of a marriage has the same claim as a child born inside of a marriage, but the legal issue that’ can be difficult is determining who that child’s legal parent is. It’s easy enough on the mother’s side: a child can inherit from his or her birth mother. But on the father’s side, if parents were never married, a child will need to prove paternity to have a legal claim. How does a child do this? Here are some common ways: • A court order declaring paternity SiblingsBrothers, sisters, and half-brothers and half-sisters all count in this group in most states. For example, if Sam married Sarah and had a daughter, Karen, then married Gloria and had twin sons, Ike and Mike and then died intestate, Karen, Ike and Mike (who have a common father) would all be considered his heirs. Community v. Separate PropertyIn nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin (and Alaska, which is an opt-in community property state that gives both parties the option to make their property community property) people can own different kinds of property: community and separate. In some of those states, the kind of property determines who can inherit. For example, in California, a surviving spouse inherits all of the community property, but inherits either one-half or one third of the decedent’s separate property, sharing that with surviving children, or parents, or siblings, depending on who survives the decedent. Spouse’s Share in UtahIn Utah, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants — children, grandchildren, or great-grandchildren.If you die with no descendants, or if all of your descendants are from you and your surviving spouse. Your spouse inherits all of your intestate property.If you die with descendants who are not the descendants of your surviving spouse — in other words, you have children or grandchildren from a previous relationship. Your spouse inherits the first $75,000 of your intestate property, plus 1/2 of the balance. Your descendants inherit everything else.If your spouse will split your property with others, there’s another rule to bear in mind: The value of any non-probate transfers — for example, a house that passes through joint tenancy or a transfer of any of the other kinds of property listed under “Which Assets Pass by Intestate Succession,” above — will be added to the intestate estate. The non-probate transfer is considered an “advancement,” meaning that its value will be deducted from the spouse’s intestate share. If the amount of the advancement exceeds what the spouse is entitled to under intestate succession laws, the spouse will not have to pay anything back, but he or she will not inherit anything more. Who Inherits When Your Spouse Without a Will?If your spouse dies without a Will, Utah law determines who will inherit his or her property. These laws, called intestacy laws, are essentially state-written Wills that determine who gets the decedent’s property. The word “intestate” describes a person who dies without a will. A person who dies with a Will is said to die “testate.” Generally, in intestate succession, property goes to close family members, starting with a surviving spouse and children, and then gradually widening out to parents, siblings, nieces and nephews, grandparents and their legal descendants, and more distant relatives after that. If absolutely no relatives can be found, then a decedent’s property goes to the state.And, just to make it all more complicated, the laws of more than one state may apply. The rules for distributing a person’s personal property (cars, clothes, jewelry, etc.) will be the state where that person lived, called “domicile” in legal speak. But, if a person also owned real property in another state, that state’s law would apply to the distribution of that real property.Because these laws are written to cover a vast variety of families and situations, they can be complicated to read, and they vary state to state. Basically, in each state, you have to understand the kind of property a person has and the family relationships that person has to work your way down to who gets what. In some states, for example, a surviving spouse will inherit all the property left by a decedent, if all of that person’s surviving heirs are also descendants of the surviving spouse. States also differ in how they divide up property among the surviving heirs. If a person who would be entitled to inherit has died before the decedent, that person’s descendants will inherit that share. There are two different ways to determine how much such descendants are entitled to: • Per capita distribution means “per head” in Latin and each descendant takes an equal share. If, for example, one sibling and two nieces of a deceased sibling are the right heirs, each would get one-third of the estate. • Per stirpes distribution means “by the root” in Latin and each descendant takes a share determined by the root–or what that person’s deceased ancestor would have inherited. For example, if a child would have inherited one-half of a decedent’s assets, but died first and left three children, those three children would each inherit one-sixth of the estate (each would inherit one-third of their parent’s one-half share). Utah Code 75-2-102 Lawyer Free ConsultationWhen you need legal help with Utah Probate Code 75-2-102, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Can Bankruptcy Help Creditors? Imputed Income For Child Support In Utah via Michael Anderson https://www.ascentlawfirm.com/utah-probate-code-75-2-102/ No. Alimony in not mandatory in Utah, but you may be able to receive it or you may have to pay it. Spousal support is not mandatory in most states but can be ordered by a judge under certain circumstances. If a spouse will face hardships without financial support, spousal support should be considered. The deciding factor for spousal support is the need to maintain the spouse at his or her customary standard of living. In other words, the law recognizes a husband or wife should not be forced to live at a level below that enjoyed during the marriage. However, other factors also need to be considered. For example, spousal support should most likely not be considered if: • The marriage was for a short duration (less than two or three years), and • Both spouses are employed and self-sufficient. Spousal support has variable timeframes. It can be for an unlimited period, subject to the death or remarriage of the recipient spouse, or fixed to end on a specific date. Child support payments do take priority over spousal support. There is no firm dollar figure for spousal support. The amount should be decided by both parties. Some common ways of calculating spousal support are to take up to 40% of the paying spouse’s net income (post-child support), less 50% of the amount of the supported spouse’s net income (if he or she is working). Spousal support can be waived by the recipient spouse. However, the waiver should be in writing and signed by both spouses. Therefore, to summarize the grounds on which the alimony can be denied are as follows: • If the Wife is earning enough to maintain herself • If the wife is in an adulterous relationship Anyhow, this shall not affect the maintenance rights of the children. As per the provision under the Law, the daughter is liable to get maintenance till she is married and the son is liable to get maintenance till the age of 18 years. Alimony is not an automatic matter of consideration by the Court; rather it comes to the scene only after the wife has applied for it. There are basically four ways by which alimony can be granted the following; • Rehabilitation Alimony: If the wife is not financially independent, or does not have any means to earn all by herself to maintain herself, then in such a situation, the Court grants alimony order. Where the wife is educated enough and is capable to find a job and maintain herself, then in such a situation, the Court shall instruct the wife to look for a suitable job and shall be liable only till the wife settles down financially. There is no set time for rehabilitative alimony to end, and it is determined based on the individual situation. This type of alimony will likely be reviewed at intervals to check on the progress of the recipient. • Reimbursement alimony: In the situation where one spouse worked to put the other spouse through college or a work related program which resulted in this spouse earning more money reimbursement alimony may be awarded. Typically, the alimony will continue until the cost or half of the cost of schooling has been paid back. Basics of AlimonyAbility to Pay: Courts always consider a person’s ability to pay when setting his alimony obligation. A court looks at the payer’s gross income from all sources (wages, public benefits, interest and dividends on investments, rents from real property, profits from patents and the like, and any other sources of income), less any mandatory deductions (income taxes, Social Security, health care and mandatory union dues). The result is the payer’s net income. In most states, deductions for credit union payments and wage attachments are not subtracted when calculating net income. The reason for this rule is that the law accords support payments a higher priority than other types of debts, and would rather see other debts not paid than have a spouse go without adequate support. Ability to Earn: When a court computes the amount of alimony to be paid by a spouse, both parties’ ability to earn is usually taken into account. Actual earnings are an important factor in determining a person’s ability to earn, but are not conclusive where there is evidence that a person could earn more if she chose to do so. Some states, however, set alimony payments based only on actual earnings that is, the ability to pay. Standard of Living During Marriage: When a court sets alimony, it often considers the family’s pre-divorce standard of living and attempts to continue this standard for both spouses. If only one spouse worked outside the home and in many marriages where both spouses worked outside the home, it is usually impossible to continue the same standard of living for both people after the spouses have gone their separate ways. Maintenance of the same standard of living is therefore more of a goal than a guarantee. Tax Consequences of Alimony: For federal income tax purposes, alimony paid under a written agreement or court order is deductible by the payer and is taxable to the recipient. Child support, on the other hand, is tax-free to the recipient but not deductible by the payer. In the past, when ex-spouses had more flexibility in negotiating the amount of child support and alimony, many ex-spouses agreed to greater alimony and less child support because of the resulting tax advantage to the payer. Because all states determine the basic child support obligation by formula, however, shifting the amounts of child support and alimony to take advantage of tax deductions is increasingly difficult. Debts: Upon divorce, the court allocates debts incurred during marriage between the spouses based on who can pay and who benefits most from the asset attached to the debt. If the court orders a spouse to pay a large portion of marital debts, it often reduces the amount of alimony that spouse is ordered to pay. Agreement Before Marriage: Before a couple marries, the parties may make an agreement concerning certain aspects of their relationship, including whether alimony will be paid in the event the couple later divorces. These agreements are also called ante-nuptial, pre-nuptial or pre-marital agreements. They are usually upheld by courts unless one person shows that the agreement is likely to promote divorce (for example, by including a large alimony amount in the event of divorce), was written and signed with the intention of divorcing or was unfairly entered into (for example, a spouse giving up all of his rights in his spouse’s future earnings without the advice of an attorney). Lump Sum Support: In several states, a spouse may pay his total alimony obligation at the time of the divorce by giving the other spouse a lump sum payment equal to the total amount of future monthly payments. This is another term for lump sum support. Occasionally, alimony obligations are paid less frequently than monthly. This is called periodic support. Traditionally, periodic support was paid until the recipient died or remarried. Today, however, because alimony is usually paid for a fixed period, periodic support is more like lump sum support divided over a few periodic payments. Upon divorce, couples commonly enter into a divorce agreement which divides marital property and may set alimony. The agreement is called integrated if the property settlement and alimony payments are combined into either one lump sum payment or periodic payments. Integrated agreements are often used when the marital property consists of substantial intangible assets (for example, future royalties, stock options or future pension plans) or when one party is buying the other’s interest in a valuable tangible asset (for example, a home or business). In addition, if a spouse is entitled to little or no alimony, but is not financially independent, periodic payments may help that spouse gain financial independence. When parties are unable to agree on a modification of alimony, the party wanting the change will have to file a request for a modification of alimony with the court. She must usually show that circumstances have changed substantially since the time of the previously issued order. This rule encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests. Below are several examples of a change of circumstances. • Change in law: When a law affecting alimony is amended or a new law enacted, this by itself can sometimes constitute the changed circumstance necessary to file a request for modification of a prior alimony order. • Cohabitation: In some states, an alimony recipient who begins cohabiting (usually living intimately with a person of the opposite sex but a few courts have applied this rule to women who begin living with female lovers) is presumed to need less alimony than originally awarded. If the recipient objects, it is her burden to show that her needs have not decreased. • Cost of living increase: When inflation reduces the value of alimony payments, the recipient may cite her increased cost of living as a changed circumstance and request an increase. • Decrease in income/decreased ability to pay/loss of job: When an ex- spouse paying alimony suffers a decrease in earnings, she may be able to obtain from the court a downward modification of alimony. The modification may be temporary or permanent, depending on her prospects for new work or increased hours. • Decreased need for alimony: When a former spouse’s need for alimony decreases or ceases, the court may reduce or terminate the alimony if the paying spouse files a request for modification. Such a request can be made if the alimony recipient gets a job, an increase in pay or sometimes if she begins intimately living with someone of the opposite sex (cohabiting). • Disability: Disability in family law generally means the inability to earn enough income to support oneself through work because of a physical or mental condition. A temporary disability suffered by a person paying alimony may warrant a temporary decrease of alimony. A permanent disability may warrant a request for modification of alimony based on changed circumstances. Similarly, if a recipient of alimony becomes disabled, a court may order an increase if her earnings decreased or her expenses increased (for example, health care or child care) as a result. • Financial emergency: A financial emergency occurs when a person is unexpectedly required to lay out money (for example, to pay sudden medical bills). When a person who pays alimony suffers a financial emergency, he may file a request with the court for a temporary decrease of alimony. When a person who receives alimony suffers a financial emergency, she may ask the court for a temporary increase. • Hardship: Hardship means suffering or adversity. If compliance with a legal obligation would cause a hardship on a person or his family, he may be excused from the obligation. For example, a payer’s inability to meet an alimony obligation without great economic suffering himself is a hardship. If a court finds this hardship substantial, the payer may be relieved of all or a part of his support obligation for a temporary or indefinite period. • Increase in income: When an alimony recipient’s income increases, her ex-spouse may file with the court a request for modification of the alimony, claiming that the changed circumstance means his ex-spouse needs less alimony. Whether the court will agree depends on the particular facts of the situation. When the paying spouse’s income increases, alimony may stay the same if the recipient’s needs are being met. If her ex did not have the ability to pay enough alimony to meet her true needs before the increase in income, however, a court might grant a request for a modification based on the increase. • Medical emergencies: Medical emergencies that require large expenditures of money are the kind of temporary and catastrophic circumstances that may support a temporary modification of alimony. If the recipient suffers the emergency, the payer may be required to temporarily increase payments (if he is able). Likewise, if the payer is the one with the emergency, his duty to support may temporarily be eased by the court. • New support obligation: When an ex-spouse paying alimony assumes a new legal support obligation (for example, adopts, remarries or has a child), the court may reduce the earlier alimony order if it would be a hardship to pay the prior alimony and meet the new obligation. On the other hand, if the new support obligation is voluntarily assumed (for example, helping to support stepchildren when there is no duty to do so), rather than required by law, a court is unlikely to order a reduction. The courts’ reasoning is that if the recipients survived the months (or years) without the support, they truly can get by without it. Each installment of court-ordered alimony is owed and to be paid according to the date set out in the order. When an ex-spouse ordered by a court to pay alimony does not comply, the overdue payments are called arrearages or arrears. Because the majority of people ordered to pay alimony don’t, and a growing number of women who are awarded (but not paid) alimony are poor, many (but unfortunately, not enough) courts are becoming more strict than they were a few years ago about enforcing alimony orders and collecting alimony arrearages. A wage attachment is a court order requiring an employer to deduct a certain amount of money from an employee’s paycheck each pay period in order to satisfy a debt. Wage attachments are often used to collect alimony or child support arrearages and to secure payment in the future. Alimony Attorney Free ConsultationWhen you need legal help for Alimony in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Protect Your Business In Divorce via Michael Anderson https://www.ascentlawfirm.com/is-alimony-mandatory-in-utah/ Consumer Financial Protection Bureau (CFPB) issued rules to establish new, strong protections for struggling homeowners facing foreclosure. The rules also protect mortgage borrowers from costly surprises and runarounds by their servicers. “For many borrowers, dealing with mortgage servicers has meant unwelcome surprises and constantly getting the runaround. In too many cases, it has led to unnecessary foreclosures.” Mortgage servicers are responsible for collecting payments from mortgage borrowers on behalf of loan owners. They also typically handle customer service, escrow accounts, collections, loan modifications, and foreclosures. Generally, borrowers have no say in choosing their mortgage servicers. Lenders frequently sell loans to investors after the mortgage deal is signed, and the investors, not the consumers, often choose the servicers. Even before the financial crisis, the mortgage servicing industry at times experienced problems with bad practices and sloppy recordkeeping. As millions of borrowers fell behind on their loans as a result of the crisis, many servicers were unable to provide the level of service necessary to meet homeowners’ needs. Many simply had not made the investments in resources and infrastructure to service large numbers of delinquent loans. Consumers complained about getting the runaround and being hit with costly surprises. Now, with millions of homeowners in distress, many borrowers are continuing to experience serious problems seeking loan modifications or other alternatives to avoid foreclosure. Strong Protections for Struggling BorrowersThe CFPB’s mortgage servicing rules ensure that borrowers in trouble get a fair process to avoid foreclosure. Borrowers shouldn’t have to worry about mortgage servicers cutting corners or losing applications for relief. They should be told about their options and given time to apply and be considered for loan modifications and other alternatives. Most of all, they shouldn’t be surprised by the start of a foreclosure proceeding until they have had time to explore all available options. If they act diligently to seek alternatives, they should not face a foreclosure sale before their applications have been evaluated. The new protections for struggling borrowers include: • Restricted Dual Tracking: Under the CFPB’s new rules, dual-tracking when the servicer moves forward with foreclosure while simultaneously working with the borrower to avoid foreclosure is restricted. Servicers cannot start a foreclosure proceeding if a borrower has already submitted a complete application for a loan modification or other alternative to foreclosure and that application is still pending review. To give borrowers reasonable time to submit such applications, servicers cannot make the first notice or filing required for the foreclosure process until a mortgage loan account is more than 120 days delinquent. • Notification of Foreclosure Alternatives: Servicers must let borrowers know about their “loss mitigation options” to retain their home after borrowers have missed two consecutive payments. They must provide them a written notice that includes examples of options that might be available to them as alternatives to foreclosure and instructions for how to obtain more information. • Direct and Ongoing Access to Servicing Personnel: Servicers must have policies and procedures in place to provide delinquent borrowers with direct, easy, ongoing access to employees responsible for helping them. These personnel are responsible for alerting borrowers to any missing information on their applications, telling borrowers about the status of any loss mitigation application, and making sure documents get to the right servicing personnel for processing. • Fair Review Process: The servicer must consider all foreclosure alternatives available from the mortgage owners or investors those with decision-making power over the loan to help the borrower retain the home. These options can range from deferment of payments to loan modifications. And servicers can no longer steer borrowers to those options that are most financially favorable for the servicer. • No Foreclosure Sale Until All Other Alternatives Considered: Servicers must consider and respond to a borrower’s application for a loan modification if it arrives at least 37 days before a scheduled foreclosure sale. If the servicer offers an alternative to foreclosure, they must give the borrower time to accept the offer before moving for foreclosure judgment or conducting a foreclosure sale. Servicers cannot foreclose on a property if the borrower and servicer have come to a loss mitigation agreement, unless the borrower fails to perform under that agreement. • Clear Monthly Mortgage Statements: Servicers must provide regular statements which include: the amount and due date of the next payment; a breakdown of payments by principal, interest, fees, and escrow; and recent transaction activity. • Early Warning before Interest Rate Adjusts: Servicers must provide a disclosure before the first time the interest rate adjusts for most adjustable-rate mortgages. And they must provide disclosures before interest rate adjustments that result in a different payment amount. • Options for Avoiding Costly “Force-Placed” Insurance: Servicers typically must make sure borrowers maintain property insurance and if the borrower does not, the servicer generally has the right to purchase it. The CFPB’s rules ensure consumers will not be surprised by this insurance, which often can be more expensive than the insurance borrowers buy on their own. The rules say servicers must provide more transparency in this process, including advance notice and pricing information before charging consumers. Servicers must also have a reasonable basis for concluding that a borrower lacks such insurance before purchasing a new policy. If servicers buy the insurance but receive evidence that it was not needed, they must terminate it within fifteen days and refund the premiums. When mortgage servicers make mistakes, records get lost, payments are processed too slowly, or servicer personnel do not have the latest information about a consumer’s account, the consumer suffers the consequences. The CFPB’s rules will require common-sense policies and procedures for handling consumer accounts and preventing runarounds. These rules include: • Payments Promptly Credited: Servicers must credit a consumer’s account the date a payment is received. If the servicer places partial payments in a “suspense account,” once the amount in such an account equals a full payment, the servicer must credit it to the borrower’s account. • Prompt Response to Requests for Payoff Balances: Servicers must generally provide a response to consumer requests for the payoff balances of their mortgage loans within seven business days of receiving a written request. • Errors Corrected and Information Provided Quickly: Servicers must generally acknowledge receipt of written notices from consumers regarding certain errors or requesting information about their mortgage loans. Generally, within 30 days, the servicer must: correct the error and provide the information requested; conduct a reasonable investigation and inform the borrower why the error did not occur; or inform the borrower that the information requested is unavailable. • Maintain Accurate and Accessible Documents and Information: Servicers must store borrower information in a way that allows it to be easily accessible. Servicers must also have policies and procedures in place to ensure that they can provide timely and accurate information to borrowers, investors, and in any foreclosure proceeding, the courts. Consumer Financial Protection Bureau Expands Foreclosure Protections • Requiring servicers to provide certain borrowers with foreclosure protections more than once over the life of the loan: Under the CFPB’s existing rules, a mortgage servicer must give borrowers certain foreclosure protections, including the right to be evaluated under the CFPB’s requirements for options to avoid foreclosure, only once during the life of the loan. Today’s final rule will require that servicers give those protections again for borrowers who have brought their loans current at any time since submitting the prior complete loss mitigation application. This change will be particularly helpful for borrowers who obtain a permanent loan modification and later suffer an unrelated hardship such as the loss of a job or the death of a family member that could otherwise cause them to face foreclosure. • Expanding consumer protections to surviving family members and other homeowners: If a borrower dies, existing CFPB rules require that servicers have policies and procedures in place to promptly identify and communicate with family members, heirs, or other parties, known as “successors in interest,” who have a legal interest in the home. Today’s final rule establishes a broad definition of successor in interest that generally includes persons who receive property upon the death of a relative or joint tenant; as a result of a divorce or legal separation; through certain trusts; or from a spouse or parent. The final rule ensures that those confirmed as successors in interest will generally receive the same protections under the CFPB’s mortgage servicing rules as the original borrower. • Providing more information to borrowers in bankruptcy: Under the CFPB’s existing mortgage rules, servicers do not have to provide periodic statements or early intervention loss mitigation information to borrowers in bankruptcy. Today’s final rule generally requires, subject to certain exemptions, that servicers provide those borrowers periodic statements with specific information tailored for bankruptcy, as well as a modified written early intervention notice to let those borrowers know about loss mitigation options. Servicers also currently do not have to provide early intervention loss mitigation information to borrowers who have told the servicer to stop contacting them under the Fair Debt Collection Practices Act. Today’s final rule generally requires servicers to provide modified written early intervention notices to let those borrowers also know about loss mitigation options. • Requiring servicers to notify borrowers when loss mitigation applications are complete: Whether a borrower is entitled to key foreclosure protections depends in part on the date a borrower completes a loss mitigation application. If consumers do not know the status of their application, they cannot know the status of those foreclosure protections. Today’s final rule requires servicers to notify borrowers promptly and in writing that the application is complete, so that borrowers know the status of the application and have more information about their protections. • Protecting struggling borrowers during servicing transfers: When mortgages are transferred from one servicer to another, borrowers who had applied to the prior servicer for loss mitigation may not know where they stand with the new servicer. Today’s final rule clarifies that generally the new servicer must comply with the loss mitigation requirements within the same timeframes that applied to the transferor servicer, but provides limited extensions to these timeframes under certain circumstances. If a borrower submits an application shortly before transfer, the new servicer must send an acknowledgment notice within 10 business days of the transfer date. If the borrower’s application was complete prior to transfer, the new servicer must evaluate it within 30 days of the transfer date. If the new servicer needs more information to evaluate the application, the borrower would retain some foreclosure protections in the meantime. If the borrower submits an appeal, the new servicer has 30 days to make a determination on the appeal. • Clarifying servicers’ obligations to avoid dual-tracking and prevent wrongful foreclosures: The CFPB’s existing rules prohibit servicers from taking certain actions in foreclosure once they receive a complete loss mitigation application from a borrower more than 37 days prior to a scheduled sale. However, in some cases, borrowers are not receiving this protection, and servicers’ foreclosure counsel may not be taking adequate steps to delay foreclosure proceedings or sales. The CFPB’s new rule clarifies that, if a servicer has already made the first foreclosure notice or filing and receives a timely complete application, servicers and their foreclosure counsel must not move for a foreclosure judgment or order of sale, or conduct a foreclosure sale, even if a third party conducts the sale proceedings, unless the borrower’s loss mitigation application is properly denied, withdrawn, or the borrower fails to perform on a loss mitigation agreement. The clarifications will aid servicers in complying with, and assist courts in applying, the dual-tracking prohibitions in foreclosure proceedings to prevent wrongful foreclosures. • Clarifying when a borrower becomes delinquent: Several of the consumer protections under the CFPB’s existing rules depend upon how long a consumer has been delinquent on a mortgage. Today’s final rule clarifies that delinquency, for purposes of the servicing rules, begins on the date a borrower’s periodic payment becomes due and unpaid. When a borrower misses a periodic payment but later makes it up, if the servicer applies that payment to the oldest outstanding periodic payment, the date the borrower’s delinquency began advances. The final rule also allows servicers the discretion, under certain circumstances, to consider a borrower as having made a timely payment even if the borrower’s payment falls short of a full periodic payment. The increased clarity will help ensure borrowers are treated uniformly and fairly. CFPB Attorney Free ConsultationWhen you need legal help with the CFPB in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Notice Of Lien And Interest Holders via Michael Anderson https://www.ascentlawfirm.com/the-cfpbs-effect-on-foreclosures/ Utah generally prohibits carrying a concealed firearm without a concealed carry permit including an unloaded firearm on the person or a firearm that is readily accessible for immediate use which is not securely encased in a vehicle, unless the vehicle is in the person’s lawful possession or the person is carrying the loaded firearm with the consent of the person lawfully in possession of the vehicle. Utah also generally applies the same restrictions on carrying a loaded handgun in a vehicle without the consent of the individual who is lawfully in possession of the vehicle, except for concealed carry permit holders. However, no person may possess a loaded long gun in any vehicle. Subject to limited exceptions, Utah law also generally prevents individuals from enforcing restrictions on individuals’ ability to transport or store a firearm in a vehicle on any property designated for motor vehicle parking, if: Utah Gun LawsUtah is a shall-issue state. Permits are issued at the state level by the Department of Public Safety. There is no permit, background check or firearms registration required when buying a handgun from a private individual. Although the state has pre-emption, Salt Lake County has established a policy that background checks for private sales in the counties three event facilities (Salt Palace Convention Center, Mountain America Expo Center and Salt Lake County Equestrian Park). Open carry is legal in Utah if you have a concealed carry permit. The minimum age is 18 years old. Without a permit, you can only open carry a handgun if it is unloaded and at least two actions from being fired (e.g., rack the slide to chamber, then pull the trigger). Concealed carry is legal with a license/permit. The minimum age is at least 21 years of age or 18 for a provisional permit. Utah Concealed Firearm Permits (CFP) are issued to residents and non-residents who meet the requirements. Some areas are off-limits, including courthouses and secured areas of airports. Concealed carry permits require a firearms familiarity course that has been certified by the Bureau of Criminal Investigation (BCI). In terms of reciprocity, Utah will honor all other state or county permits. Utah is a Castle Doctrine state and has a “stands your ground” law. The person using deadly force in defense of personal or real property is presumed for the purpose of both civil and criminal cases to have acted reasonably and to have had a reasonable fear of imminent peril of death or serious bodily injury if the trespass or attempted trespass is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner or for the purpose of committing a forcible felony. There is no duty to retreat if a person feels deadly force is justified to prevent a felony from being committed. The law applies in defense of real property or personal property at a person’s residence or any place where a person has a legal right to be. Transporting Firearms and AmmunitionYou may transport unloaded firearms in a locked hard-sided container as checked baggage only. Declare the firearm and/or ammunition to the airline when checking your bag at the ticket counter. The container must completely secure the firearm from being accessed. Locked cases that can be easily opened are not permitted. Be aware that the container the firearm was in when purchased may not adequately secure the firearm when it is transported in checked baggage. Firearms• When travelling, comply with the laws concerning possession of firearms as they vary by local, state and international governments. • If you are travelling internationally with a firearm in checked baggage, please check the Utah Customs and Border Protection website for information and requirements prior to travel. • Declare each firearm each time you present it for transport as checked baggage. Ask your airline about limitations or fees that may apply. • Firearms must be unloaded and locked in a hard-sided container and transported as checked baggage only. As defined by 49 CFR 1540.5 a loaded firearm has a live round of ammunition, or any component thereof, in the chamber or cylinder or in a magazine inserted in the firearm. Only the passenger should retain the key or combination to the lock unless TSA personnel request the key to open the firearm container to ensure compliance with TSA regulations. You may use any brand or type of lock to secure your firearm case, including TSA-recognized locks. • Firearm parts, including magazines, clips, bolts and firing pins, are prohibited in carry-on baggage, but may be transported in checked baggage. • Replica firearms, including firearm replicas that are toys, may be transported in checked baggage only. • Rifle scopes are permitted in carry-on and checked baggage. Ammunition• Ammunition is prohibited in carry-on baggage, but may be transported in checked baggage. • Firearm magazines and ammunition clips, whether loaded or empty, must be securely boxed or included within a hard-sided case containing an unloaded firearm. Read the requirements governing the transport of ammunition in checked baggage as defined by 49 CFR 175.10 (a) • Small arms ammunition (up to .75 caliber and shotgun shells of any gauge) must be packaged in a fiber (such as cardboard), wood, plastic, or metal box specifically designed to carry ammunition and declared to your airline. • Ammunition may be transported in the same hard-sided, locked case as a firearm if it has been packed as described above. You cannot use firearm magazines or clips for packing ammunition unless they completely enclose the ammunition. Firearm magazines and ammunition clips, whether loaded or empty, must be boxed or included within a hard-sided, locked case. • Please check with your airline for quantity limits for ammunition. What is ‘open carry’?Some states have either prohibited or strongly regulated laws surrounding “open carry,” the carrying around of guns in public but, most have weakened their laws in recent years. Thirty-one states allow the open carrying of a handgun without any licence or permit, although in some cases the gun must be unloaded. Fifteen states require some form of licence or permit in order to openly carry a handgun. What is ‘concealed carry’?Concealed carry is carrying a weapon such as a handgun in a concealed manner, either on one’s person or nearby. Most states banned it in the 19th century as the practice of criminals, whereas open carrying was seen as legitimate for self-defence. A special permit was required for concealed carry, with only certain qualified people granted a license. Some areas can be declared “gun free zones”, allowing a business put up a sign that makes it is illegal to carry a concealed firearm on the premises. Gun Regulation and Legislation in UtahThe concept of gun control, firearms’ potential to cause mass casualties, and the interpretation of the 27 words comprising the Second Amendment have evolved considerably since the Bill of Rights was ratified in 1791. For instance, the National Firearms Act, which imposed a statutory excise tax on the manufacture and transfer of certain firearms and mandated registration of those firearms, was passed in 1934. This Act was challenged in 1939, which ultimately upheld the constitutionality of the National Firearms Act. The opinion stated: “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” Opponents of gun control believe that additional laws or regulations on firearm purchases would not stop criminals from acquiring weapons or deter crime, and that regulations would trespass only against law-abiding gun owners who are exerting their Second-Amendment right. Further, many opponents of gun control believe that better enforcement of current laws and improved mental health services would be more effective in preventing mass shootings than passing additional laws. Conversely, those who favour stricter firearm regulation argue that it’s possible to enact regulations without infringing on the rights of law-abiding citizens to possess firearms. Proponents of these regulations believe that lives could be saved by requiring universal background checks at the federal level, mandating longer waiting periods between firearm purchase and acquisition, and implementing restrictions on certain types of high-capacity guns as well as limiting the amount of ammunition legally allowed to be purchased. In order to better understand firearms-related violence, calls to Congress have been made to fund the CDC specifically to perform research in this area. Thus far, Congress has refused to do so. Private foundations have attempted to fill the gap, but have encountered a congressional roadblock: the Tiahrt Amendments, which prevent the Bureau of Alcohol, Tobacco, Firearms and Explosives from sharing its firearms-tracking database with anyone excepting law enforcement. Of course, this isn’t an all-or-nothing debate, and there are opinions all along the spectrum, from those few on the one hand who believe there should be no gun regulations at all to those few on the other who call for the wholesale repeal of the Second Amendment. For example, some gun owners which recently made the choice to stop selling assault-style rifles and to sell firearms only to those over age 21, support the Second Amendment but simultaneously agree with Scalia’s statement that the Second Amendment “is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Stand Your Ground LawsStand Your Ground, commonly known as “Castle Doctrine” laws that permit a person to defend themselves with deadly force and with no duty to retreat have been enacted in 27 states. These laws vary from state to state in the conditions that it may be used such as the degree of retreat, places covered and if there is any non lethal force required before using deadly force. Most of these laws will have some of the following conditions; • An attempt to forcibly and unlawfully enter an occupied vehicle, business or residence. To use the law occupants must be legally in the building or vehicle. If they are a fugitive or helping another fugitive then they cannot defend themselves with deadly force. Some states require that a person must first retreat if attacked and only use deadly force in there is no option of retreat or retreat would put the person in danger. If a Castle Doctrine law is in place a threatened person is not required to retreat from a place of work or their own house and in some states this extends to any place a person is legally entitled to be. Firearms Attorney Free ConsultationWhen you need legal help with gun law in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
Non-Compete Agreements And The Law Notice Of Lien And Interest Holders Appeals And Motions To Modify A Divorce Decree What You Need To Know About Form 10-k, 10Q and 8-k via Michael Anderson https://www.ascentlawfirm.com/firearm-regulations/ Demand for notice of order or filing concerning decedent’s estate. Order for ProbateAfter the initial Probate hearing the Judge will sign Judicial Council Form DE-140, Order for Probate. The Order for Probate is used to appoint the Executor or Administrator of the Estate and should be issued at the same time as the Letters of Administration which are issued so the Administrator can begin managing the estate. Contents Of ProbateThe Order for Probate will list the date, time, department and Judge who heard the case and will indicate what the Judge ordered. The Court must find that all required notices were given at the correct times and all interested parties were served. The Order will list the date the decedent died, indicate if they were or were not a resident of California and of the county in which the Probate case was opened, if the decedent died with or without a Will, the date of the Will and any codicils that were executed. The Court will then indicate on the Order for Probate that the Petitioner is appointed the Personal Representative as either executor of the decedent’s Will, administrator with Will annexed, administrator or special administrator and will determine if the special administrator will have general powers, special powers or can continue without notice of hearing. Authority of the Personal RepresentativeThe Judge will give authority to the Personal Representative by either giving full authority, which is governed under the Independent Administration Estates Act and allows the Personal Representative to manage the estate (i.e., sell property, manage assets and make distributions) without obtaining a Court order. The Judge can grant limited authority where nothing can be done without Court supervision and a Court order would be needed to sell, purchase, exchange or borrow money against any real property. At this time the Judge will determine if it is necessary for the Personal Representative to obtain a bond. If bond is required the Judge can determine a fixed amount to be obtained by a surety company or for the Personal Representative to make a deposit into a blocked account. Lastly, the Judge will order whether or not the Personal Representative is or is not authorized to take any money or property without a further Court order and depending on your county’s local rules, a Probate Referee will be appointed. The Judge will then date and sign the Order for Probate and you will take the Order and the Letters for Administration to the Clerk of the Court to have the documents certified. Probate In UtahProbate is the court-supervised process of gathering a deceased person’s assets and distributing them to creditors and inheritors. As an executor, your probate process will depend on whether your state has adopted the Uniform Probate Code (UPC), which is a set of probate laws written by a group of national experts. The UPC’s goal is to make the probate process simpler, especially for small estates, and to give executors more flexibility in how they proceed. The Probate Process in Non-UPC StatesEvery probate court has its own detailed rules about the documents it requires, what they must contain, and when they must be filed. Bearing in mind that no estate is perfectly typical, here is an outline of the probate process states that do not use the entire UPC. (Almost all states have enacted bits of the UPC.) Getting StartedYou begin the probate process by asking the court to officially make you executor. If you end up acting as executor, you’ll need to: • File a request (called a petition or application) for probate in the county in which the deceased person was living at the time of death. You will also need to file the death certificate and the original will (if there is one) with the court. • Publish a notice of the probate in local newspaper according to court rules. Mail notices to creditors you know about. • Mail the notice to beneficiaries and heirs, as required by the court. • File proof that you properly published and mailed the notice. • Post a bond (if required by the court), which protects the estate from any losses you cause (up to a certain dollar amount). The amount of the bond depends on the size of the estate. • Prove the will’s validity by providing statements from one or more witnesses to the will. This is often done by submitting the “self-proving affidavit” that was signed by the witness in front of a notary at the time the will was signed. • File other documents required by the court. Administering the EstateAs executor, you’re in charge of keeping estate property safe during the probate process. You will prepare a list of the deceased person’s assets and, if necessary, get assets appraised. You’ll need to: • Get an employer identification number for the estate from the IRS. • Notify the state health or welfare department of the death, if required by state law. • Open an estate bank account. • Arrange for preparation of income tax returns. • Prepare and file an inventory and appraisal of estate assets. • Mail a notice to creditors and pay debts (state law may impose a deadline on you). • If the court requires it, file a list of creditors’ claims you have approved and denied. • If required, file a federal estate tax return within nine months after death. (Most estates are not large enough to owe federal estate tax). • If required, file a state estate tax return, usually within nine months after death. (Fewer than half the states impose their own tax.) Closing the EstateWhen the creditor’s claim period has passed, you’ve paid debts and filed all necessary tax returns, and any disputes have been settled, you’re ready to distribute all remaining property to the beneficiaries. You’ll need to: • Mail a notice to heirs and beneficiaries that the final hearing is coming up. (This must be done a certain period of time before the hearing; the court will have a rule.) • File proof that you mailed the notice as required. • Get the court’s permission to distribute property. • Transfer assets to the new owners and get receipts. • After you distribute assets and all matters are concluded, file receipts and ask the court to release you from your duties. The Probate Process in UPC StatesAlthough the law is very similar in the states that have adopted the entire UPC for probate, it isn’t identical. You’ll need to learn your own state’s (and sometimes your own county’s) particular rules. Under the UPC, there are three kinds of probate: informal, unsupervised formal, and supervised formal. Here is an overview of each. Informal ProbateMost probates in UPC states are informal. This relatively simple process is used when inheritors are getting along and you don’t expect problems with creditors. If anyone wants to contest the proceeding, you cannot use informal probate. The whole process is just paperwork — there are no court hearings. The first step is to file an application with the probate court to begin an informal probate and serve as the “personal representative” (the term UPC states use instead of “executor” or “administrator”).Once your application is approved, you will have official authority — often in the form of a document called “letters testamentary” or “letters” — to act on behalf of the estate. You will need to do the following: • Send out formal written notices of the probate to heirs, beneficiaries, and creditors that you know about. Unsupervised Formal ProbateUnsupervised formal probate in UPC states is a traditional court proceeding, much like the regular probate described above. It is generally used when there is a good reason to involve the court — for example, if there’s a disagreement over the distribution of the estate’s assets, the heirs need to be determined (if there is no valid will), or minors are inheriting significant property. You may need to get the court’s permission before you sell the deceased person’s real estate, distribute property to beneficiaries, or pay a lawyer — or yourself — for work done on behalf of the estate. To close the estate, file an accounting that shows how you handled the estate’s assets. Supervised Formal ProbateSupervised formal probate is the rarest form of probate. It’s used only if the court finds it necessary to supervise the probate procedure — for example, because a beneficiary can’t adequately look after his or her own interests and needs the court’s protection. As you might expect, you must get court approval before distributing any property in this case. What is meant by “written notice of filing” of an order?Filing occurs when the district court administrator officially makes the order part of the record. The administrator will stamp the order with the date of filing. The administrator may file the order on the same day that the district court judge signs it, but sometimes the order is not filed until later. A “notice of filing” is a separate document that must, at a minimum, notify the recipient what it is that has been filed and the date of filing. An appeal from an appealable order must be filed and served within 60 days after service by any party of written notice of the filing of the order. A “party” is a person or entity who participated in the district court proceeding. The district court administrator is not a party, so generally a notice from the court administrator about the filing of an order does not start the appeal time. An important exception to this rule is that in appeals from child-support orders in the expedited support process, the court administrator’s service of notice of filing of the order does start the appeal time. You do not need to wait until a party serves written notice of filing of an appealable order to file your appeal, but if any party serves a written notice of filing of the order, then the appeal period will end in 60 days. Service of a document may be made personally or by United States mail. The parties may agree to service by facsimile or other electronic means. If the appeal period is counted from a party’s service of notice of filing (as it is with most orders), and the notice of filing is served by mail, three days are added to the prescribed period, but the time must be counted from the date the notice was mailed, not the date of receipt. Therefore, in most types of civil cases, if any party serves written notice of filing of an appealable order by mail, the appeal period expires 63 days after the date the notice was mailed. If the appeal is not served and filed within that time, it cannot be considered by the court. Another appellate timing rule states that no order made before entry of judgment shall be appealable after the time to appeal the judgment has expired. Lawyer For Probate Free ConsultationWhen you need legal help with a probate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews
What Can I Keep If I File Bankruptcy? Parental Rights And Responsibilities Students Eligible For Loan Discharge via Michael Anderson https://www.ascentlawfirm.com/utah-probate-code-75-3-204/ A lien is a legal claim or a right against property. Liens provide security, allowing a person or organization to take property or take other legal action to satisfy debts and obligations. Liens are often part of the public record, informing potential creditors and others about existing debts. The debt is now secured, and the lender has a better chance of getting repaid. Liens are possible anytime somebody has a legal right to somebody else’s property. They’re typically part of an agreement to purchase real or personal property (home and auto loans, for example). Liens can also exist as a result of legal action. When you borrow to buy a home, the property serves as collateral. In your loan agreement, you agree to allow the lender to foreclose on your home if you fail to meet certain requirements. For example, you need to make monthly payments, insure the property, possibly live in it as your primary residence for several years, and more. Auto loans are similar to home loans. One difference is that instead of forcing you out of your home (which doesn’t go anywhere), your auto lender can take your vehicle from you through repossession. You won’t necessarily know when or where this happens ahead of time—it can happen while you’re at home, at work, or while you’re out-and-about. Car title loans can also result in liens filed with your local Department of Motor Vehicles (DMV). Local governments and the IRS sometimes collect unpaid taxes with liens. Tax liens are particularly troublesome—taxing authorities can attach liens to current and future assets, they can collect from bank accounts relatively easily, and they might even be able to jump to the front of the line and collect before other creditors. The IRS generally gets to collect before your lender, for example, and bankruptcy might not be sufficient to discharge unpaid taxes. Local governments in need of funding can be especially eager to collect, but the IRS sometimes moves slower. A mechanic’s lien is a formal notice, filed with a court of appropriate jurisdiction, indicating a financial interest in property. Sometimes referred to as a contractor’s lien or a construction lien, this form details money owed to the contractor for either services rendered or materials provided on a construction or home or building improvement project. Without one, a contractor runs the risk of not being paid for work performed or services provided. When a property owner doesn’t pay a bill for work done on the property, the mechanic’s lien gives the contractor a security interest in the property and preserves the claim for payment. Contractors should be cautious not to fall into a false sense of security about a mechanic’s lien. For a lien to be legal, it must be perfected. Each state has their own requirements for how to perfect a construction lien. This form is designed to protect contractors who, by their products or services, enhance the value of property. Consequently, they are most commonly used in new construction or improvements to property. However, the cost of the rental of a portable latrine, or the installation and removal of a security fence, while perhaps necessary for the comfort and safety of the workers, may not be subjected to a mechanic’s lien. This is because the latter does not increase the value of the property, while the new roof does. There is a priority to liens against the property. Generally speaking, liens take priority based on the order they are filed. Consequently, a first mortgage takes priority over this form, as the mortgage was filed first. However, this form may take priority over a second mortgage, depending on when the mechanic’s lien and the second mortgage were filed. Most unsecured creditors, such as the holders of credit card debt, medical bills, and personal loans, must first file a lawsuit, win the action, and get a money judgment before obtaining lien rights. With the judgment in hand, a judgment creditor can place a judgment lien on your real estate and occasionally on personal property depending on the state in which you live. Usually, a property tax lien takes priority over all other mortgages or liens on the property, even if the property tax lien was placed on the property after the other liens. If the taxes are not paid, the government can have your property sold to pay the property taxes. The government must follow whatever procedure the state prescribes, and you may have the opportunity to pay the taxes and costs and get your property back even after the “sale.” If you don’t pay your taxes, to protect its mortgage, the lender will usually pay the taxes and add that to your mortgage debt. Liens are also “perfected” or “unperfected”. Perfected liens are those liens for which a creditor has established a priority right in the encumbered property with respect to third party creditors. Perfection is generally accomplished by taking steps required by law to give third party creditors notice of the lien. The fact that an item of property is in the hands of the creditor usually constitutes perfection. Where the property remains in the hands of the debtor, some further step must be taken, like recording a notice of the security interest with the appropriate office. Perfecting a lien is an important part of the task of protecting the secured creditor’s interest in the property. A perfected lien is valid against bona fide purchasers of property, and even against a trustee in bankruptcy; an unperfected lien may not be. Movers are typically entitled to a mover’s lien under UCC § 7-307/308, to withhold a customer’s goods to secure payment. This is a possessory lien, and is the non-consensual type of lien (because it exists automatically under a statute instead of being affirmatively agreed upon). However, the concept of a mover’s lien is often abused in a moving scam known as a hostage load, whereby the moving company will fraudulently extort money not owed by the customer by refusing to deliver the goods unless the customer pays money inflated beyond the contractual estimate. Because the customer has an interest in obtaining their own goods, they are under duress to pay the ransom. Hostage loads in at least the interstate context are illegal under 49 U.S.C. 13905. The FMCSA regulates the moving industry and sometimes takes enforcement action by fining and/or deli censure of offending moving companies. Moving companies that deliberately engage in hostage-loading may also be considered to be engaging in racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act. Disputes between legitimate lien holding of chattels vs. hostage-loading can sometimes be averted by the customer including an advanced (before-the-fact) consensual waiver of the mover’s right to a lien in the written contract, obligating the moving company to deliver the goods with reasonable dispatch regardless of disputes over payment, and failure to do so would constitute conversion or trespass to chattels. Common-law liens are divided into special liens and general liens. A special lien, the more common kind, requires a close connection between the property and the service rendered. A special lien can only be exercised in respect of fees relating to the instant transaction; the lienor cannot use the property held as security for past debts as well. A general lien affects all of the property of the lienee in the possession of the lienor, and stands as security for all of the debts of the lienee to the lienor. A special lien can be extended to a general lien by contract, and this is commonly done in the case of carriers. A common-law lien only gives a passive right to retain; there is no power of sale which arises at common law, although some statutes have also conferred an additional power of sale, and it is possible to confer a separate power of sale by contract. A common-law lien is a very limited type of security interest. Apart from the fact that it only amounts to a passive right to retain, a lien cannot be transferred; it cannot be asserted by a third party to whom possession of the goods is given to perform the same services that the original party should have performed; and if the chattel is surrendered to the lienor, the lien entitlement is lost forever (except for where the parties agree that the lien shall survive a temporary re-possession by the lienor). A lienee who sells the chattel unlawfully may be liable in conversion as well as surrendering the lien. In common-law countries, equitable liens give rise to unique and difficult issues. An equitable lien is a no possessory security right conferred by operation of law, which is similar in effect to an equitable charge. It differs from a charge in that it is non-consensual. It is conferred only in very limited circumstances, the most common (and least ambiguous) of which is in relation to the sale of land; an unpaid vendor has an equitable lien over the land for the purchase price, notwithstanding that the purchaser has gone into occupation of the property. It is seen as a counterweight to the equitable rule which confers a beneficial interest in the land on the purchaser once contracts are exchanged for purchase. The maritime lien has been described as one of the most striking peculiarities of Admiralty law. A maritime lien constitutes a security interest upon ships of a nature otherwise unknown to the common law or equity. It arises purely by operation of law and exists as a claim upon the property concerned, both secret and invisible, often given priority by statute over other forms of registered security interest. Although characteristics vary under the laws of different countries, it can be described as: a privileged claim, upon maritime property, for service to it or damage done by it, accruing from the moment that the claim attaches, Travelling with the property unconditionally, Enforced by an action in rem. manufacturer’s lien a statutory lien that secures payment for labour or materials expended in producing goods for another. Mechanic’s lien (also sometimes referred to as an artisan’s lien, chattel lien, construction lien, labourer’s lien, in various jurisdictions). Municipal lien (United States) a lien by a municipal corporation against a property owner for the owner’s proportional share of a public improvement that specifically and individually benefits the owner. Notice of Lien means any “notice of lien” or similar document intended to be filed or recorded with any court, registry, recorder’s office, central filing office or other Governmental Authority for the purpose of evidencing, creating, perfecting or preserving the priority of a Lien securing obligations owing to a Governmental Authority. Notice of Lien means a record filed in the office of the secretary of state pursuant to this article that identifies one or more claimants with respect to a designated statutory lien; identifies, to the extent required by the applicable substantive statute, the property asserted to be subject to the lien; identifies the owner or owners of the property; and otherwise complies with the requirements of this article. Notice of Lien means a notice that: a political subdivision records in the office of the recorder of the county in which a property. A lien is a notice attached to your property telling the world that a creditor claims you owe it some money. A lien is typically a public record. It is generally filed with a county records office (for real property) or with a state agency, such as the secretary of state (for cars, boats, office equipment, and the like). Liens on real estate are a common way for creditors to collect what they are owed. Liens on personal property, such as motor vehicles, are less frequently used but can be an effective way for someone to collect. To sell or refinance property, you must have clear title. A lien on your house, mobile home, car, or other property makes your title unclear. To clear up the title, you must pay off the lien. Thus, creditors know that putting a lien on property is a cheap and almost guaranteed way of collecting what they are owed sooner or later. Generally, creditors have the right to have real property sold to pay off the lien, usually by way of a foreclosure sale. But except for mortgage liens and tax liens, they rarely do so. This is because in most cases your mortgage was placed on the property before the liens and so must be paid off before any liens are paid. If the creditor forecloses on the lien, it has to keep up the payments on the mortgage or lose the property. Lien Attorney Free ConsultationWhen you have a notice of interest or are a lien holder in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506 via Michael Anderson https://www.ascentlawfirm.com/notice-of-lien-and-interest-holders/ |
ABOUT USSpent a weekend buying and selling toy planes in Suffolk, NY. Spent several years selling wool in Mexico. Enthusiastic about testing the market for pond scum in the government sector. Archives
April 2023
Categories |