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Francis N. Soave

Francis Soave’s Answers

85 total


  • How do I determine if a Special Needs Trust protected from creditors when I'm filing for bankruptcy in the near future?

    I established a special needs trust a few years ago. I just funded it with $7500 at the top of this month. I need to declare chapter 7 bankruptcy in the near future. How do I determine if my $7500 protected from credit card debts during bankruptcy...

    Francis’s Answer

    When you transfer property (money) before filing bankruptcy, there is a very high level of scrutiny by the chapter 7 trustee. If you didn't receive full value for the transfer, the trustee may claim it is a fraudulent conveyance.

    However, there are other concerns, and opportunities, with your situation. The amount of $7,500 is not, in many cases, an excessive amount in reference to available exemptions. Your bankruptcy attorney may be able to protect the amount in the trust with exemptions.

    Your description doesn't describe who is the beneficiary of the trust, or whether the trust is revocable or irrevocable, or whether it contains a spendthrift clause. You also implied, but didn't directly state, that the source of the $7,500 was from your own funds, or a gift or inheritance from another.

    All these factors would come into the analysis of whether the trust remains outside the bankruptcy estate, whether the transfer is voidable by the trustee, or whether there are available exemptions.

    Further information is required, and your best advise would be to consult with an attorney who is familiar with both trust and bankruptcy law.

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  • Still living in house after charpter 7 discharge

    9 months later still living in house after my chapter 7 discharge, was hoping to still till after sheriff sale, haven't hear about it yet, is'nt 6months more after notice, in Mich

    Francis’s Answer

    The redemption period in Michigan is 6 months after the foreclosure sale, if the house is not abandoned, and the property is a city lot or similar size. Larger acreage may have a 12 month redemption period. The time period will be in the published notice. The Chapter 7 discharge doesn't affect the rights in foreclosure.

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  • Are assets held in my name only in jeopardy if my wife gets sued?

    My wife is a practicing physician in the State of Michigan. If she gets sued and has a judgement against her, can they come after assets that are in my (husbands) name only?

    Francis’s Answer

    No you are not responsible for her debts, so your assets would not be exposed to her creditors. Also, property in Michigan that is held by a husband and wife as tenants by the entirety also cannot be attached by a creditor whose claim is against only one spouse.

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  • LLC and Liability Insurance

    I was told that a LLC alone does not provide much coverage without liability insurance. Is that true that I should get both? What exactly does the LLC cover vs the insurance?

    Francis’s Answer

    The LLC won't protect you from claims against you for your own negligence. What an LLC can protect against is vicarious liability. In other words, if your company has employees, vehicles, or property, and a third party is injured by an employee, equipment, a vehicle (not driven by you) or on property of the LLC's, and you are not negligent in the causing it in any way, then they may only sue the LLC, and/or the individuals involved, but not you personally.

    So the protection has to be analyzed in relation to the specific situation of your business. Generally the smaller the business, and the more you do yourself, the less protection it will provide. The larger the company, in terms of employees, equipment, vehicles and property, the more protection.

    If you are a manufacturer, or seller of a product, the LLC may also protect you from products liability claims. Restaurants, for example, are small businesses that should be formed as LLC or Corporations, since there are many employees, and products sold, so likewise the opportunities for claims for food illness, slip/falls, liquor liability, etc.

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  • I have lived on my property for 23 years and have used and maintained land that my neighbors are now claiming.I built a shed 15

    ago without any problems from previous owners whom owned the property without a mortgage.The current owners have had a survey of the land and are now requesting that I now move my shed.They have lived on the land for approximately 4 years and have...

    Francis’s Answer

    Get a good lawyer and a good surveyor. You may be able to show that the old property lines were what the original owner who split the property intended it to be. The mortgage really isn't a determining factor here.

    You may have a case of adverse possession. There are also other theories available for cases where the property line has been consented to over many years.

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  • I believe I have met all the criteria for adverse possession,my neighbor never gave me permission,he simply stated where

    the property line was.Does that affect a case of adverse possession if he was wrong?

    Francis’s Answer

    For you to claim adverse possession, you both have to know that the possession is adverse. You have to intend to use it, and he has to know you are wrong and do nothing about it. It sounds like mutual mistake to me. At least one, if not both, (since you didn't write whether you knew where the true line was), of you thought you were on your own property. That's not adverse possession.

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  • Monetary responsiblity after death.

    I have legal guardianship of my father with dimentia. 99% of the time he is fine in making money decisions. If he pays for a new AC for us on his personal credit card and passes away before it is paid off, would I be responsible for the balance?

    Francis’s Answer

    You would have to explain a little further about how he is fine 99% of time, yet has dementia. I'm sure there is an explanation for what you wrote. But as it reads, there is an apparent inconsistency that you should clarify. If he signed the receipt for the charge on the card when he purchased the AC, and gave it to you as a gift, you aren't likely to be pursued to return it. Theoretically, the lender might be able to claim a purchase money security interest in the AC, since you knew it was purchased on credit. But they most likely would not assert such claims. You are not responsible for your father's debts after he passes away.

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  • Is junior lien-holder entitled to excess proceeds from trustee sale if debt was discharged in ch7 bankruptcy?

    In Arizona, is a 2nd mortgage lien-holder entitled to request distribution of excess proceeds from trustee sale foreclosure by 1st mortgage when the trustee sale occurred after filing of Ch 7 bankruptcy and before discharge, and credit report show...

    Francis’s Answer

    • Selected as best answer

    Neither the "charge off" report on the credit report, nor the discharge in bankruptcy strip, avoid, or release the lien against the property.

    Part of your question is ambiguous though. You wrote "trustee sale foreclosure". If this was a foreclosure sale during the bankruptcy, conducted after the 1st mortgage lender obtianed relief from the stay, then the 2nd mortgage would be wiped out or avoided by the foreclosure of the 1st. If this was a sale by the trustee in the bankruptcy, because there was non-exempt equity in the house, then the trustee would use the proceeds to pay the 1st mortgage, then the 2nd mortgage, then any exempt equity to the debtor, and the rest is property of the estate to pay administrative expenses and unsecured debts, pro-rata.

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  • My sister passed away 6 months ago and I'm executor of her estate, I do not have a copy of her will, Would the will be on file.

    Where would the will be filed in Wayne County Michigan,

    Francis’s Answer

    She might have filed it with the probate court, but there is no requirement that she would have had to. If you can't locate the will, the estate will have to be probated according to the intestate statute in Michigan.

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  • Medical bills

    I have medical debt owed to a hospital for emergency situations. My work hours have been cut from 40 hours per week to 23 hours per week. At $8.35 per hour. I am hardly making it as it is. They have begun to threaten me with constant phone calls....

    Francis’s Answer

    They cannot garnish your wages until after they sue you, obtain a judgment, and issue the garnishment through the court. In response, your options would be to either file a motion for an installment payment order, or file for bankruptcy relief. You should meet with an attorney. There is no need for you be be this frightened, or for this to result in a job loss, or homelessness.

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