Schein & Cai LLP Receives 2009 Best of San Jose Award
U.S. Commerce Association’s Award Plaque Honors the Achievement Read the rest of this entry »
Great news for Schein & Cai at the beginning of Year of Tiger!
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Unlike a Will, a Living Will a document spelling out what kind of medical care a person wants if he or she should have a terminal illness or become incapable of communicating his or her wishes. A Living Will can set out the kinds of treatment a person does or does not want in any circumstances. This could include telling medical personnel when to maintain life support, when to turn it off, and when not to resuscitate you. If you don’t leave these instructions, someone else will make these decisions for you if you should become incapacitated.
The name of this document, often called a Living Will, is confusing, since this document isn’t really a Will at all. It doesn’t do things a Will does, like transfer your property or name guardians for your minor children. Even if you have a Living Will, you still need a Will, or some other estate-planning document, such as a living trust, to do those things.
There’s also an alternative to a Living Will called a Durable Power of Attorney (DPA) (also called a Power of Attorney for Health Care). Instead of giving instructions about your medical care if you become incapacitated, a DPA names a person you trust to make those decisions for you. One advantage of a DPA is that your representative can make medical decisions based on the most up-to-date treatment information and make decisions about anything you haven’t covered in your Living Will, such as deciding on medication choices, surgery options, or choosing physicians or treatment facilities.
Statute of Frauds is a type of state law, modeled after an old 1677 English law, that requires certain types of contracts to be in writing. The law’s purpose is to prevent the possibility of a nonexistent contract between two parties being “proved” by perjury or fraud. This objective is accomplished by prescribing that particular contracts not be enforced unless a written note or memorandum of agreement exists that is signed by the persons or their authorized representatives to be bound by the contract’s terms.
The statute of frauds is invoked by a defendant in a breach of contract action. If the defendant can establish that the contract he has failed to perform is legally unenforceable because it has not satisfied the requirement of the statute, then the defendant cannot be liable for its breach. For example, if a plaintiff claims that a defendant agreed to pay her a commission for selling his building. If the defendant can demonstrate that no commission contract was signed, the statute of frauds will prevent the plaintiff from recovering the commission.
A strict application of the statute of frauds can produce an unjust result. A party, who in good faith believes a contract exists and therefore spends time and money to perform the contract, would be unable to force the other party to perform because the agreement was not in writing. Therefore, courts often employ the term part performance to determine whether a plaintiff’s conduct based on her belief that a contract exists justifies enforcement of the contract even though it has failed to comply with the statute of frauds. Part performance refers to acts performed by the plaintiff in reliance on the performance of the duties imposed on the defendant by the terms of the contract. The plaintiff’s actions must be substantial in order to demonstrate that he actually has relied on the terms of the contract.
Where services have been performed based upon a contract that is unenforceable because of the statute of frauds, the value of those services can nevertheless be recovered on the basis of quantum meruit, or the reasonable value of those services.
If one party has performed in reliance on an oral contract and will be irreparably harmed if the contract is not enforced, some courts apply the theory of equitable estoppel to prevent the statute of frauds from being employed as a defense. Equitable estoppel holds that if a person has so altered his position that justice demands the enforcement of the contract, the court will enforce the contract even though it fails to comply with the statute.
Unlike other living trusts, an ILIT is irrevocable. Once a policy is transferred to it, the trust cannot thereafter be changed. If, and only if, you survive for three years after transferring the policy to the trust will the insurance proceeds not be taxed in your estate or your spouse’s estate. The resulting death tax savings can be very substantial. It is, therefore, very important for you and/or your broker to have the policy transferred to the trust as soon as possible. If you have not yet made application for the policy, then it would be best if the policy was, in fact, purchased directly by the trust rather than purchased by you and then transferred to the trust. It is possible that we can avoid the “three year wait” if this procedure is followed. Read the rest of this entry »
Not all debts can be discharged through bankruptcy. The debts discharged vary under each chapter of the Bankruptcy Code. Section 523(a) of the Code specifically excludes various categories of debts from the discharge granted to individual debtors. Therefore, the debtor must still repay those debts after bankruptcy. Congress has determined that these types of debts are not dischargeable for public policy reasons (based either on the nature of the debt or the fact that the debts were incurred due to improper behavior of the debtor, such as the debtor’s drunken driving).
There are 19 categories of debt excepted from discharge under chapters 7, 11, and 12. A more limited list of exceptions applies to cases under chapter 13.
Generally speaking, the exceptions to discharge apply automatically if the language prescribed by section 523(a) applies. The most common types of nondischargeable debts are certain types of tax claims, debts not set forth by the debtor on the lists and schedules the debtor must file with the court, debts for spousal or child support or alimony, debts for willful and malicious injuries to person or property, debts to governmental units for fines and penalties, debts for most government funded or guaranteed educational loans or benefit overpayments, debts for personal injury caused by the debtor’s operation of a motor vehicle while intoxicated, debts owed to certain tax-advantaged retirement plans, and debts for certain condominium or cooperative housing fees.
The types of debts described in sections 523(a)(2), (4) and(6) (obligations affected by fraud or maliciousness) are not automatically excepted from discharge. Creditors must ask the court to determine that these debts are excepted from discharge. In the absence of an affirmative request by the creditor and the granting of the request by the court, the types of debts set out in sections 523(a)(2), (4) and (6) will be discharged.
A slightly broader discharge of debts is available to a debtor in a chapter 13 case than in a chapter 7 case. Debts dischargeable in a chapter 13, but not in chapter 7, include debts for willful and malicious injury to property, debts incurred to pay non-dischargeable tax obligations, and debts arising from property settlements in divorce or separation proceedings. Although a chapter 13 debtor generally receives a discharge only after completing all payments required by the court-approved (i.e., “confirmed”) repayment plan, there are some limited circumstances under which the debtor may request the court to grant a “hardship discharge” even though the debtor has failed to complete plan payments. Such a discharge is available only to a debtor whose failure to complete plan payments is due to circumstances beyond the debtor’s control. The scope of a chapter 13 “hardship discharge” is similar to that in a chapter 7 case with regard to the types of debts that are excepted from the discharge. A hardship discharge also is available in chapter 12 if the failure to complete plan payments is due to “circumstances for which the debtor should not justly be held accountable.”
When non-business debtors contemplate the option of bankruptcy, they need to first decide whether to file under Chapter 7 (liquidation) or Chapter 13 (reorganization) of the U.S. Bankruptcy Code. The effect of the filing is to let someone saddled with debt to discharge or reduce debts. It also has the added benefit of serving as a court order to creditors and their collection agencies to stop hassling you through telephone calls, letters, and personal contact in an effort to get you to pay the debt. This is called temporary automatic stay.
Chapter 7
Filing for chapter 7 bankruptcy does not mean that immediately all of your debts are eliminated in their entirety. Rather, secured debt must be still be dealt with. It does mean, however, that commonly unsecured debts like credit card bills and medical expenses do not have to be paid back. But getting off the hook here does not come without costs. Rather, filing chapter 7 often means the necessary liquidation (selling off) of most of your personal property that are not exempted under the law. While there are limitations to what can be confiscated by creditors, (such as your home under the homestead protection), expect that the U.S. Trustee will sell off most of your valued possessions, including your home (if it has equity), to pay part of your debts to them. In addition, your credit rating will be adversely impacted by this filing. You will find it very difficult, if not completely impossible, to get a mortgage for a new home, a car loan, a credit card, and even limits very small forms of credit like appliance financing and at times payday loans.
Chapter 13
Chapter 13 filing means quite simply that you are restructuring your debt by negotiating with your creditors and establishing a plan to pay them off over the course of three to five years. So, this is a formal declaration that you will and have worked with creditors so that they will get some or all of their money. By promising to pay off your debts, you are allowed to keep valuable personal property such as your home and car. Typically the arrangement reached with creditors is to have you pay your regular monthly payments, plus an additional amount that over time allows you to get caught up on your payments over time.
If you have related needs, give our lawyers a call today. Business and corporate attorneys at Schein & Cai LLP in San Jose, California (capital of Silicon Valley, San Francisco Bay Area) can help you handle the most complicated cases of bankruptcy.
Statute of limitations (“SOL”) is a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. Read the rest of this entry »
A special needs trust is set up for a person with special needs to supplement any benefits he or she may receive from government programs. Read the rest of this entry »
What would happen if you and your spouse got into an accident and ended up unable to speak for yourselves, pay your bills, make your own investment decisions? What will happen to all the assets you’ve accumulated after you’re gone? There are several ways to handle these matters, one of which is a Living Trust. You can assign Power of Attorney to someone for your financial and health care decisions (in the event you become incapacitated). It is recommended that you have these documents even if you use a Living Trust as the basic document. Read the rest of this entry »
News Release
September 25, 2009 – Schein & Cai LLP Won Critical Motion for Its Client
Schein & Cai LLP won a critical Motion to Dismiss Based on Forum Non Conveniens for its Taiwan based client in the United States District Court for the Northern District of California (Moletech Global Hong Kong Ltd. v. Pojery Trading Co. and Pottery Trading USA, Case No. 4:09-cv-0027-SBA). Based upon extensive briefing by Schein & Cai supported by law and fact, the Honorable Judge Saudra B. Armstrong issued an opinion, without court hearing, dismissing the lawsuit brought by the plaintiff, which was represented by a national law firm with over 900 attorneys, alleging, among others, breach of contract, trademark and copyright infringement and unfair competition by our client. This defense victory came after our firm successfully defeated a previous motion by the plaintiff to seek a Temporary Restraining Order and Preliminary Injunction against our client. This case exemplifies our attorneys’ in-depth knowledge of intellectual property law and business contract, as well as their excellent court advocacy skills.