Living Wills

A client came to my office asking for me to draft a Last Will and Testament, power of attorney and living will. It was very simple, until we got to the living will/health care proxy document. He paused a long time and really was not sure what he wanted to do with this.

He thought that if he did not sign the living will, he would just let a doctor decide what to do with him. I told him that a doctor can not decide what to do with him if he falls into a permanent state of unconsciousness or have an irreversible illness. no one really would have a clear say what to do with him without a living will.

A living will is a document that lets you plan for your medical situations. It is a great opportunity to allow you to advise your doctor your medical wishes and types of treatment you want. A living will only takes effect when you have been medically determined to be in a permanent vegetative state or terminally ill.

One of the most importnant things that a document like this does, also, is take away the guilt from the family members if they question "is this enough medical care?" or "Would he want this."

I think it is a very important document. The good thing- after he went home and thought about it, he came back and signed it.

Retaining a Lawyer

“Can you just call the court and tell them that I need a postponement? “ It sounds so easy and quick. Unfortunately, if you are just calling a lawyer for the first time, attorneys cannot just call the court and ask them to postpone a matter. The lawyer must be retained first. Often, clients think that they can retainer a lawyer to just write a letter or call the court to postpone a motion or even trial. Unfortunately, once a lawyer submits a letter to the court, the lawyer has been retained for the entire matter. You will, therefore, be hard pressed to find a lawyer who will just call the court to postpone a matter.

Announcement: Matus and Connell, L.L.C.

Christine L. Matus, Esq. L.L.C. and Joseph A. Connell, Sr., J.D., PhD.,L.L.C.

are pleased to announce the formation of

Matus and Connell, L.L.C.,

a partnership of Limited Liability Companies.

With combined LegalExperience of 36 years, this new partnerhsip will be able to provide even more personalized attention to your legal needs.

Including, but not limited to:

Residential & Commercial Real Estate

Immigration & Nationality Law

Short Sales

Green Cards - Naturalization (Citizenship) -

Foreclosures

Visas for Non-Immigrant Professional Workers

Loan Modifications

Seasonal Workers - Religious Workers

Consumer Fraud

Visas for Medical Treatment

Name Changes

Medical Workers - Deportation Defense

Divorce and Child Support

Outbound Immigration - Employer Regulatory

Compliance

Employment Law - Representing Employers

Training - Policy & Procedures

Civil Litigation (Defense)

Small Business - Formation - Strategic Planning

Loan Modifications

In the last several months, I have come across clients who have fallen behind on their mortgage and are now faced with some options, like whether to obtain a loan modification.

These are difficult times, and often during times of pressure, rash decisions are made without fully understanding the consequences of our choices. There's a great blog by Mandelman about this subject.
Bascially, Mortgage loan modifications assist home owners stay in their properties by restructuring present mortgages to minimize month-to-month payments. Even though mortgage modification loans are beneficial to debtors, loan providers take advantage from them as well.

Some Basics for a loan Modification are :
Start the loan modification procedure early. Your lender doesn't want to foreclose on your house, but it will follow common protocol after you default on your mortgage loan installments. The U.S. Department of Housing and Urban Development states that borrowers should speak to their mortgage loan companies and request modification of their residence loans as soon as house loan payments become a dilemma .
-- Avoid loan modification scams. Be cautious of any business or individual that offers to help "streamline" your home loan modification process. Even though reputable organizations exist that can offer you assistance, con artists abound that are much more than prepared to take your money, or worse, your property.
-- Have proof of your monetary scenario.
-- Stay in contact with your loan company. If you submit your Loan Modification application and monetary paperwork however do not hear something from your loan company for several weeks, call the bank and inquire about the status of your application.
-- Get it in writing. If a bank representative called to inform you that your loan modification request was accepted, hold off on celebrating until you receive the information in writing . Your loan company isn't required to honor any statements produced by its representatives over the telephone. Continue making your previous mortgage payment until the financial institution sends you something in writing notifying you of your new loan terms.

Should you hire a lawyer to help you with this?
"When a homeowner hires an attorney to help negotiate a loan modification, that attorney is not going to being made to feel ashamed, guilty, or afraid… the borrower can be made to feel all of those things and more, but the lawyer, not so much. He or she is a hired gun, if you will. That’s why the banks don’t want homeowners to be represented, and why they want homeowners to call them directly." Well, said, Mandelman.

CALCULATING CAPITAL GAIN

CALCULATING CAPITAL GAIN

"Analyze the Benefits of an Exchange before You Sell"

1. CALCULATE NET ADJUSTED BASIS Original Purchase Price __________
+ Improvements __________
- Depreciation __________
= NET ADJUSTED BASIS __________

2. CALCULATE CAPITAL GAIN Sales Price __________
- Net Adjusted Basis __________
- Cost of Sale __________
= CAPITAL GAIN __________

3. CALCULATE CAPITAL GAIN TAX DUE Recaptured Deprection (25% ) __________
+ Federal Capital Gain (15%) __________
+ State Tax (when applicable) __________
= TOTAL TAX DUE __________

4. ANALYZE PURCHASE-NO EXCHANGE Sales Price __________
- Cost of Sale __________
- Loan Balances __________
= GROSS EQUITY __________
- Capital Gain Taxes Due __________
= NET EQUITY __________

Net Equity X 4 = __________

5. ANALYZE PURCHASE-EXCHANGE Capital Gain Taxes Due _____0____
Gross Equity = Net Equity __________
Gross Equity x 4 = __________

How to have United States documents recognized in the Philippines

I found this on the Philippine Embassy website:

If you are going to use in the Philippines any documents that are executed, signed or issued in the United States, these documents must bear a consular notarization or authentication so that they will be accorded legal effect in the Philippines.

Examples of these documents are Special Powers of Attorney, General Powers of Attorney, Affidavits, Deeds, Contracts, Assignments, Letters of Patent, Articles of Incorporation, Certificates of Birth, Marriage or Death and other official documents issued by U.S. authorities within the Consulate's jurisdiction.

It is important to note that the Philippine Consulate General in New York only performs consular notarization or authentication for documents that are issued or executed within Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont. The Consulate does not notarize or authenticate documents that are executed or issued in other States or Counties. Also, the Consulate does not perform notarial services for documents that are intended to be presented or submitted to non-Philippine government or private entities, such as Affidavits of Support for U.S. immigration purposes and other documents of similar nature.

All documents presented for consular notarization or authentication must comply with the procedures and requirements set forth below to avoid unnecessary delay in the notarization/authentication process.




AUTHENTICATION

The authentication of a document is made when the party or parties executing a legal document could not appear in person before a Consular officer at the Consulate.

Under this procedure, the person who is executing the document must ensure that the said document(s) is sworn to before a local Notary Public. The duly-notarized document must thereafter be submitted to the local County Clerk of Court or the Secretary of State in the State where the applicant resides. The local County Clerk or the Secretary of State will issue a Certification attesting to the official authority of the Notary Public to perform notarial functions.

After the local County Clerk or the Secretary of State shall have issued a Certification, the document should then be forwarded to the Consulate for authentication.
The Consulate also authenticates official documents issued by government offices of the U.S. Government, such as Certificates of Birth, Marriage, Death, that are intended to be submitted to government offices in the Philippines.

Requirements:

• The original copy of each document must be presented. Each original copy must be accompanied by one (1) photocopy for the Consulate's records.
• The fee each set of document is $25.00 in cash, cashier's check or postal money order made payable to the Philippine Consulate General. Personal checks, personal money orders, ATMs or credit cards are not accepted as modes of payment. Do not send payments in cash if applying by mail.
• If filed in person, documents received before 3:00 pm are normally released within the same day.
• If filed by mail, in addition to the above documents, include a self-addressed pre-paid stamped envelope (preferably PRIORITY MAIL with TRACKING NUMBER) in your packet destined for the Consulate.
• The processing time normally takes three (3) working days from the date the completely accomplished packet is received by the Consulate. Only applications compliant with the requirements and procedures listed above can be accepted for processing.
• If you have not received your processed document/s two (2) weeks from mailing your application to the Consulate General within the United States, please email us at legal@pcgny.net with the following subject line: Subject: (Insert Name of Applicant) – Authentication Sent on (Insert Date of Mailing of Application)

Consulate is NOT RESPONSIBLE for delay or loss in mail or any other uncontrollable circumstances surrounding acknowledgment or authentication of your documents.


LEGALIZATION/NOTARIZATION BY ACKNOWLEDGEMENT, JURAT OR CERTIFICATION

When the individual executing the document appears in person before a Consular officer at the Consulate, the document will be notarized by the Consular Officer in the form of an Acknowledgment, Jurat or Certification, as the case may be. The Consular officer in this case performs the functions of a Notary Public. Hence, individuals personally appearing before a Consular officer are no longer required to have their documents notarized by a Notary Public before submitting the same for notarization.

Five Tips to protect Your Child with Special Needs

Protecting a child with special needs may lead families to make common mistakes. Here are a few examples:

1. Custodial Accounts. Commonly, there are custodial accounts in the name of a child with special needs. Such an account, however, will affect the child’s availability for government assistance. Custodial accounts are often established long before the child’s special needs are recognized. If the account has an excess of $2,000.00, parents must deplete any such accounts for the care of their child to qualify for Medicaid assistance or allocate the assets to a pooled trust or first party special needs trust. If parents choose to provide assets to or for the benefit of that special needs child, a special needs trust may be established by parents or other family members and gifts can be made directly to this trust account.

2. 529 Plan. There also may be a 529 Plan in the name of a special needs child. This account in the child’s name may affect the child’s ability to receive government assistance. The 529 plan is considered an available asset of the child’s when determining his or her eligibility following the death of the individual who established the plan for such child. The best solution would be to change the designated beneficiary under the 529 Plan to name another child, if that is an option.

3. Retirement Plan and Insurance Policy Beneficiaries. Often times, parents may have worked to develop a special needs trust to which their estate plan is tied, however they forget one critical issue. Life insurance policies and retirement plan accounts pay to designated beneficiaries and do not pass under an individual’s Will. It is vital that parents tie these assets with the special needs trust. If a life insurance policy or retirement plan account are paid directly to a special needs child, the receipt of the assets will affect the child’s ability to receive government assistance.

4. Extended Family conference. Although talking with extended family members eager to benefit a special needs child may be awkward and difficult, the discussion is important. Well intentioned grandparents may allocate a portion of their estate to the special needs grandchild to make sure there are monies available to benefit their special needs grandchild and while intentions are good, the receipt of these monies could affect the grandchild’s ability to receive government benefits. Alternatively, a grandparent’s Will could leave assets to his or her children and if a child predeceases him or her, to the deceased Child’s issue (which could include a special needs grandchild). A bequest by grandparents to a special needs grandchild should be made to a special needs trust. If the parents of a special needs child feel there are family members who might make gifts or bequests to his or her special needs child, the parents should discuss with family members this issue to make sure that they understand that to the extent that they do want to leave assets to a special needs child, the assets should be left to the special needs trust created for the benefit of that child.

5. Use a Specialist. It is important that parents use an attorney who specializes in special needs planning instead of a general practitioner since there are specific issues which must be incorporated in a special needs plan.

NEW JERSEY SECURITY DEPOSITS LIMITS

The most a landlord can collect as a security deposit is one and one-half times the monthly rent. A landlord may request an increase in your security deposit if the rent is raised. This is limited to 10% of the current deposit amount.
EXAMPLE: If the monthly rent is: $1,000, the landlord may ask for a $1,500 security deposit.
Ask for a receipt when you pay the security deposit. The receipt should include the date, the landlord's signature, and the amount of the security deposit paid. The receipt should show that this money is for a security deposit. Make sure the lease states that you have paid a security deposit and includes the amount of the deposit. KEEP ALL YOUR PAPERWORK. It should be dated and signed.
SECURITY DEPOSIT NOTICE
Under the Rent Security Deposit Act the landlord has to put your security deposit in a separate bank account that pays interest. The landlord must tell you in writing the name and address of the bank where the deposit is being kept, the amount of the deposit, the type of account, and the current interest rate for that account. NOTE: The Landlord may put this directly in the lease.
The security deposit law says that this notice has to be given to the tenant in writing within 30 days after the tenant gives the deposit to the landlord. The law says that the landlord must also give the notice not just within 30 days of getting it from the tenant, but each year at the time the landlord pays the interest to the tenant.
A new landlord must also give the notice within 30 days of buying the property. The notice must be given to the tenant within 30 days after the landlord has moved the deposit from one bank to another, or from one bank account to another (unless the change in the bank or account takes place less than two months before the annual interest payment)
Your security deposit as rent : The law also says that if the landlord does not put the security money in a proper bank account, or does not give a proper written notice to the tenant every time the law provides for, then the tenant can give a written notice to the landlord telling the landlord to use the whole deposit interest per year to pay the tenant's rent.

All notices should be sent to the landlord by certified mail, return receipt requested, and you should keep a copy.
The money can be used to pay future rent or any back rent the tenant owes. Once a tenant legally tells the landlord to use the security deposit as rent, the landlord can't ask the tenant for another deposit as long as the tenant lives in the apartment or house.
Note: There are two exceptions to the rights described in the paragraph above.
• If a landlord does not obey the law that says he or she must pay the interest on the security deposit every year (or if the landlord does not use the interest to pay part of the tenant’s rent), or
• If the landlord does not give a notice about the deposit to the tenant every year, then
the tenant can use the deposit to pay past or future rent due.
But before the tenant can do this, the tenant must give or send the landlord a letter giving the landlord 30 days to pay the interest or give the annual notice.
There are two other important points about the notice of security deposit:
• Landlords will often put the name and address of the bank where your security is deposited, along with the other information required by law, right in the lease. This is sufficient notice under the law.
• Even if the landlord sends you the notice within 30 days, the landlord still violates the law if the notice is not true. If you receive the notice, call the bank to find out if the money has been deposited. If the money was not deposited, you can tell the landlord in writing to use the security deposit to pay your rent just the same as if the landlord had not sent you a notice at all.
Interest on your New Jersey Security deposit
The Rent Security Deposit Act requires landlords who rent 10 or more apartments to place tenants' security deposits in either an insured money market fund or a federally insured bank account. The account must pay a rate of interest set at least quarterly and equal to the average rate of interest paid by the bank on money market accounts.

Use and Occupancy

When selling a home, sometimes there is a need for the buyer to move in before the contract closing date. If so, a Use and Occupancy Agreement is vital. Here is a sample of what the Agrement shoud look like:


Use and Occupancy Agreement
Buyer to Occupy Early
This Agreement dated ***Agreement Date***
is made BETWEEN
***Buyer Name***
***Relationship 2***
whose address is
***Buyer Address***
referred to as the “Buyer,”
AND
***Seller Name***
***Relationship***
whose address is
***Seller Address***
referred to as the “Seller.”
1. Sale. The Buyer has agreed to purchase from the Seller the property known as ***Property Address*** referred to as the “Property.” The contract of sale remains in full effect subject to the terms of this agreement.
2. Closing. Transfer of legal title is planned to take place on or about ***Closing Date***.
3. Buyer to Occupy Early. The Seller agrees to allow the Buyer to occupy the Property for the Buyer’s immediate family prior to the transfer of title pursuant to the terms of this agreement.
4. Nature of Occupancy. Buyer shall occupy the Property as a licensee only and not as a tenant. The Buyer confirms and agrees that the Buyer does not have any rights of a tenant, as set forth in N.J.S.A. 2A:18-61.1 et seq. and elsewhere.
5. Term. The Buyer may occupy the Property from ***Term Start*** until ***Term End*** at a cost of $ ***Daily Use Charge*** per day plus the cost of all utilities. Payment shall be made as follows: ***Payment Made as Follows***
6. Inspection Prior to Occupancy. Prior to moving in or performing any decorating, painting, repairs or other work on the Property the Buyer must inspect same. Any and all objections to the condition of the Property must be resolved by the Buyer and the Seller before the Buyer is allowed to occupy the Property. Occupancy by the Buyer shall constitute acceptance of the Property “as is” and shall constitute a waiver of Buyer’s right to object to the Property’s physical condition at the closing of title.
7. Hold Harmless Agreement. If the Buyer moves out of the Property for any reason without closing title to same, the Buyer agrees to compensate the Seller for any and all damages caused to the Property during Buyer’s occupancy. Buyer will likewise hold the Seller harmless from any and all claims and expenses including reasonable attorney fees which arise as a result of the Buyer’s use or occupancy of the Property. Buyer will keep adequate insurance in force to cover all such possible claims and damages.
8. Closing Adjustments. All adjustments for taxes, utilities, etc. shall be made as of ***Adjustment Date***.
9. Insurance. The Seller shall maintain homeowner’s liability insurance coverage on the Property until the closing of title. The Seller is not obligated to carry insurance coverage with respect to the Buyer’s personal property. The Buyer is advised to obtain insurance covering the Buyer’s personal property prior to the Buyer occupying the Property.
10. Termination. If the contract of sale is validly and legally cancelled then either party may terminate the Buyer’s occupancy under this Agreement upon reasonable notice.
11. Other Terms: ***Other Terms***
12. Signed and Agreed. The Buyer and Seller sign below, giving their consent to this Agreement.

Witnessed or Attested by: Date Signed:

Loans: To Modify or Not to Modfy

As a result of the mortgage and foreclosure crisis, there is a sprouting of a new type of business which that tout “loss mitigation consulting,” “foreclosure prevention,” “mortgage loan modification,” and similar services. According to the Department of Banking and Insurance, there is a rising number of advertisements, direct-mail solicitations and other marketing materials offering New Jersey consumers assistance in negotiating resolutions of their delinquent residential mortgage loans with lenders and servicers in exchange for up-front fees.

The Department has also seen solicitations to licensees and to attorneys to partner with companies that purport to offer such services. These companies offer help to delinquent borrowers by obtaining payment plans, loan modifications, short sales and deeds in lieu of foreclosure. Mortgage bankers, brokers and solicitors have been targeted by these businesses for the purpose of gaining referrals.

What is a Loan Modification?

“A loan modification involves modifying the terms of an existing loan, typically to make it more immediately affordable for a borrower in default or in imminent danger of default, for instance because of a scheduled rate increase. The terms commonly modified are the interest rate and/or the term of loan. A loan modification is not a form of mortgage loan refinance or second mortgage activity,” per the Department of Banking and Insurance.

The New Jersey’s Debt Adjuster Act labels loan modification as “debt adjustment.”

A "debt adjuster" is a person who either (a) acts or offers to act for a consideration as an intermediary between a debtor and his creditors for the purpose of settling, compounding, or otherwise altering the terms of payment of any debts of the debtor, or (b) who, to that end, receives money or other property from the debtor, or on behalf of the debtor, for payment to, or distribution among, the creditors of the debtor. [N.J.S.A. 17:16G-1c(1)].

If you have a business, you may enter into a loan modification if you are:

a) The lender or owner of the loan; or

b) The mortgage servicing company, acting as an agent for the loan’s owner; or

c) An entity licensed by the Department as a Debt Adjuster under the Debt Adjuster Act; and

d) Other entities that are exempt from Debt Adjuster licensure, as set forth at N.J.S.A. 17:16G-1c(2):

The following persons shall not be deemed debt adjusters: (a) an attorney-at-law of this State who is not principally engaged as a debt adjuster; (b) a person who is a regular, full-time employee of a debtor, and who acts as an adjuster of his employer's debts; (c) a person acting pursuant to any order or judgment of court, or pursuant to authority conferred by any law of this State or the United States; (d) a person who is a creditor of the debtor, or an agent of one or more creditors of the debtor, and whose services in adjusting the debtor's debts are rendered without cost to the debtor; or (e) a person who, at the request of a debtor, arranges for or makes a loan to the debtor, and who, at the authorization of the debtor, acts as an adjuster of the debtor's debts in the disbursement of the proceeds of the loan, without compensation for the services rendered in adjusting those debts.

For Consumers, be wary of:

a) Payment of exorbitant upfront fees for services available from a proper source for free or at minimal cost;

b) Loss of fees paid, with no services rendered, and/or no protection from financial loss under a surety bond (Debt Adjuster licensees are required to be bonded in the minimum amount of $50,000.);

c) Loss of precious time in the midst of a default or foreclosure process;

d) Loss of title to the home without any real benefit, under certain scams; and

e) Further damage to credit profile.

The Department will investigate complaints relating to unlicensed persons offering loss mitigation consulting, foreclosure prevention, loan modification and similar services and will pursue appropriate remedies.

WHAT IS A DURABLE POWER OF ATTORNEY ?

One of the most important documents a person can ever have is a Durable Power of Attorney.  A Durable Power of Attorney permits a person to clearly define ahead of time your wants and wishes regarding financial and/or healthcare treatment in the event a person becomes incapacitated or disabled.  A Durable Power of Attorney can provide peace of mind knowing that a person of your choice has been chosen to carry out your affairs when you are unable to do so.  The person to whom the individual delegates power, known as the attorney in fact, is required to use the individual’s money only for the individual’s benefit.  The fact that the individual has signed the Power of Attorney does not interfere with that person’s right to handle matters for him or herself, as long as you are able to do so.

 

            A Durable Power of Attorney is extremely helpful if a person is temporarily hospitalized or traveling and will be away from home for some period of time or for any other reason a person is unable to perform their own payment of bills or banking.  Furthermore, a Durable Power of Attorney may be a better alternative than adding someone’s name to an individual’s bank account because with the Power of Attorney, another person can handle a persons money without having an interest in it. 

 

            An attorney in fact can help a person obtain all the benefits he or she is entitled to by making claims and applications on their behalf.  More importantly, a Power of Attorney can be revoked quickly. In all, a Power of Attorney is a very inexpensive tool that has extremely valuable benefits.  

NEW JERSEY MOTOR VEHICLE POINTS

Traffic tickets are given when violations occur. Here is a list of some violations and their points associated with them:

(note: Insurance companies have an additional point system, in addition to the points below for such events as accidents, DWI, and driving without insurance. Insurance companies can surcharge you for MVC points and for “insurance points”).

39:3-20 Operating constructor vehicle in excess of 45 mph 3
39:3-38.1 Keep or exhibit forged, altered or counterfeited insurance registration or license card 2
39:4-14.3 Operating motorized bicycle on a restricted highway 2
39:4-14.3d More than one person on a motorized bicycle 2
39:4-35 Failure to yield to pedestrian in crosswalk 2
39:4-36 Failure to yield to pedestrian in crosswalk; passing a vehicle yielding to pedestrian in crosswalk 2
39:4-41 Driving through safety zone 2
39:4-52 Racing on highway 5
39:4-55 Improper action or omission on grades and curves 2
39:4-57 Failure to observe direction of officer 2
39:4-66 Failure to stop vehicle before crossing sidewalk 2
39:4-66.1 Failure to yield to pedestrians or vehicles while entering or leaving highway 2
39:4-66.2 Driving on public or private property to avoid a traffic sign or signal 2
39:4-71 Operating a motor vehicle on a sidewalk 2 39:4-80 Failure to obey direction of officer 2 39:4-81 Failure to observe traffic signals 2
39:4-82 Failure to keep right 2
39:4-82.1 Improper operating of vehicle on divided highway or divider 2
39:4-83 Failure to keep right at intersection 2
39:4-84 Failure to pass to right of vehicle proceeding in opposite direction 5
39:4-85 Improper passing on right or off roadway 4
39:4-85.1 Wrong way on a one-way street 2
39:4-86 Improper passing in no passing zone 4
39:4-87 Failure to yield to overtaking vehicle 2
39:4-88 Failure to observe traffic lanes 2
39:4-89 Tailgating 5
39:4-90 Failure to yield at intersection 2
39:4-90.1 Failure to use proper entrances to limited access highways 2
39:4-91 and 39:4-92 Failure to yield to emergency vehicles 2
39:4-96 Reckless driving 5
39:4-97 Careless driving 2
39:4-97a Destruction of agricultural or recreational property 2
39:4-97.1 Slow speed blocking traffic 2
39:4-98 and Exceeding maximum speed 1-14 mph over limit 2
39:4-99 Exceeding maximum speed 15-29 mph over limit 4
Exceeding maximum speed 30 mph or more over limit 5
39:4-105 Failure to stop for traffic light 2
39:4-115 Improper turn at traffic light 3
39:4-119 Failure to stop at flashing red signal 2
39:4-122 Failure to stop for police whistle 2
39:4-123 Improper right or left turn 3
39:4-124 Improper turn from approved turning course 3
39:4-125 Improper U-turn 3
39:4-126 Failure to give proper signal 2
39:4-127 Improper backing or turning in street 2
39:4-127.1 Improper crossing of railroad grade crossing 2
39:4-127.2 Improper crossing of bridge 2
39:4-128 Improper crossing of railroad grade crossing by certain vehicles 2
39:4-128.1 Improper passing of school bus 5
39:4-128.4 Improper passing of a frozen dessert truck 4
39:4-129 Leaving the scene of an accident No personal injury 2 Personal injury 8
39:4-144 Failure to observe stop or yield signs 2
39:5C-1 Racing on highway 5
39:5D-4 Moving violation out-of-state 2

Which is better: A Will or a Trust?

By now, many of you know the importance of having a will drawn up. But recently, there have been more than one occasion where a question arises about whether a “trust” should be drafted instead.

There is a great a article by Jodee Redmod on Lovetoknow.com, where she writes:

"By way of a reminder, a will is a legal document that sets out how a person's estate will be dealt with upon his or her death. The estate includes the deceased's real and personal property

If a person dies intestate, without having made a will, his or her estate will be distributed according to the law set out in the state of residence. The way to ensure that your money and property go to the person(s), organization, or charity that you want is to have your instructions clearly noted in a will.

After a person dies, his or her estate needs to be settled. This process is known as probate. Before assets can be distributed to the beneficiaries under the provisions of the will, the deceased's debts must be paid out of the estate. Factors that can make this process both lengthy and expensive include:
-The deceased died without a valid will
-No will was drawn up at all
-Multiple wills are discovered
-The will is contested by one or more persons making a claim against the estate

Even in the case of a relatively-simple estate, probate fees will need to be paid. The probate fees are calculated based on the gross value of the estate, not on the net value after any debts are paid.
Once a person's will goes into probate, the contents of the will are a matter of public record. Anyone can appeal the courthouse and request a copy of the document.

A living trust, or you may see the term inter vivos trust, serves a different function than a will. A living trust is a created during a person's, know as the grantor, lifetime. The grantor transfers ownership of his or her assets into the living trust. These assets can take the form of real property, such as real estate, stocks, personal property, or cash in the bank. The main advantage to placing assets into a living trust is a financial one. Assets held in the trust do not have to be probated after the grantor's death. They pass directly to those people named as beneficiaries immediately without having to wait for an extended period for the probate process to be completed. Since a typical probate process can last as long as one year, a living trust is a benefit to heirs to the estate.

Another advantage to a living trust is that the terms of the trust are kept private; unlike a will, they are not made public after the grantor's death. Putting assets in a living trust may also help to lessen the burden of estate taxes. People may also avoid probate by purchasing a life insurance policy, or by putting money into a joint savings account with another person A person interested in estate planning doesn't necessarily need to choose a will versus a living trust. Both of these items have a place in estate planning."

Filing an Action in Small Claims

You can find this at http://www.judiciary.state.nj.us/ocean/vic14d1.htm

The Small Claims Section is a court in which you may sue someone (the defendant) to collect a small amount of money that you believe is owed to you. Because procedures in Small Claims are simpler than in other courts, persons usually can file and present their cases relatively quickly and inexpensively, and often without an attorney.

Small Claims handles cases in which the demand is not more than $3,000.00. If the amount of money you are trying to recover is more than $3,000.00, but less that $15,000.00 your case should be filed in the regular Special Civil Part. Cases in which damages are more that $15,000.00 must be filed in the Law Division of the Superior Court.

If you believe you are entitled to damages greater than $3,000.00 but still wish to sue in Small Claims, you give up you right to recover damages over $3,000.00. The additional money cannot be claimed later in a separate lawsuit.

A complaint must be filed in the of Office the Special Civil Part of the county where at least one defendant lives or where the defendant business is located.

Types of Claims Handled in the Small Claims Section
Typical Claims Filed
Following is a general list of claims which can be filed in Small Claims:
Breach of written or oral contract. Return of money used as a down payment.Property damage caused by a motor vehicle accident. Damage or loss to property. Consumer complaints for defective merchandise or faulty workmanship. Payment for work performed. Claims based on bad checks. Claims for back rent. Return of a tenant's security deposit.

Please remember that is you believe you are entitled to damages greater than $3,000.00 and sue in Small Claims, you can only recover damages up to $3,000.00.

CLAIMS THAT CANNOT BE FILED
The following is a general list of claims that cannot be filed in Small Claims:
Claims arising from professional malpractice (for example; alleged malpractice by a doctor, dentist or lawyer). Claims for support or alimony from a marital or a domestic dispute.Claims arising from a probate matter.

Credit Cards Woes

Have you ever been contacted by a credit card company? Chances are you have or may be contacted in the near future, considering the reason downturn in the economy. At one of the fastest rates in recent memory, Americans are falling behind on their credit card payments, receiving delinquencies and defaults in double-digit percentages compared to last year and prompting warnings of worse to come.

If you find yourself in debt, the Fair Debt Collection Act (FDCA) provides protection. This is a federal law that shields consumers from abusive and harassing creditors. It applies to third party creditors who have purchased accounts or hired by the original creditor to collect a debt.
Once a creditor contacts you, they must advise that they are a collection agency. They must notify you who the original creditor is, and the amount owed. This permits you to determine if the bill is actually yours or if you dispute this bill. Always request a copy of the bill in writing and check if they advise you that you have 30 days to dispute the bill.

There are several rules that Debt Collectors must abide by. For example, a Debt Collector CANNOT:
1. Continue to contact you at your place of employment once you notify a collector that you do not want calls at work,;
2. Use abusive and intimidating language;
3. Call you several times a day;
4. Publish your name and nature of the debt;
5. Contact you before 8:00 a.m. and after 9 p.m.;
6. Communicate with any other person such as a spouse, family member, or even your attorney, without written permission from you;
7. Deposit a postdated check prior to the date written on the check;
8. Cannot collect any amount greater than the amount owed.

These are several more laws of conduct for creditors in the FDCA.

If you find that a third party creditor’s behavior violates the FDCA, you may send, via certified mail, a Cease and Desist Letter to the collection agency. They are then required to stop communicating with you. Once a third party debt collector receives a Cease and Desist letter, they can only contact you to notify you that their efforts will be terminated; they may utilize other alternatives they have used with similar debtors.

Foreclosure Resources

With foreclosures on the rise, it may seem that there is no where to turn. But there is a great website http://www.hud.gov/foreclosure/foreclosuretips.cfm from the U.S. Department of Housing and Development. They list tips for avoiding foreclosure and toll free phone numbers for people to call. It also lists resources for out of state persons.

New Jersey Lemon Law: What’s Covered and What Isn’t

Here is a great article written by Sergei Lemberg, a lemon law attorney.


Chek out [link: http://www.lemonjustice.com/blog]. Here he discusses what you need to know about new car lemons.

"With all of the cars, SUVs, trucks, motorcycles, and RVs being manufactured in the U.S. and abroad, it’s reasonable to expect that some will have defects. After all, vehicles are incredibly complex pieces of machinery and a lot of things can go wrong. In the best-case scenario, any defects that weren’t caught by quality assurance are quickly repaired by the dealer. In the worst-case scenario, you have a vehicle with pronounced defects that make it run poorly, that constitute a safety hazard, or that reduces its value – and the dealer or manufacturer refuses to buy back or replace it.

When that happens, New Jersey lemon law can come to the rescue. New Jersey Lemon Law covers new or leased passenger vehicles, combination vehicles, SUVs, trucks, business vehicles, RVs, and motorcycles that are purchased, leased, or registered in New Jersey. It also covers used vehicles that experience defects within the first two years of the original owner’s delivery date or 18,000 miles on the odometer – whichever comes first.

Although it doesn’t cover minor defects (like a non-working stereo system), the lemon law does force the manufacturer to stand by its product. In order for the lemon law to apply to new vehicles, the defects have to occur during the first two years from the delivery date or the first 18,000 miles on the odometer – whichever comes first. In addition, the vehicle must have been taken in three times for the same problem or been out of service for 20 business days due to a series of unrelated problems. Plus, you have to notify the manufacturer of the problem and give them one last opportunity to fix it.

If you think you have a lemon, you basically have three choices: you can use the manufacturer’s dispute resolution process; you can use the Division of Consumer Affairs’ Automotive Dispute Resolution Program; or you can go to court. Before you begin, though, you should have a lemon law lawyer by your side. After all, you can be sure that the manufacturer’s team of legal eagles will be there to fight your claim every step of the way.

The good news is that, if your claim is successful, the manufacturer has to pay your attorney fees. Often, with the help of a lawyer, you can get a refund, replacement vehicle, or cash settlement without having to go through the entire lemon law process – and get your attorney’s fees covered in the process."

Very important information!

What to Look for in a Contractor

Have you ever had the experience of hiring a contractor, paying them and then helplessly wait for them to show up? If they fail to complete the job or perform less than good workmanlike quality, you may file a criminal complaint against them here in New Jersey.

Before the Honorable Thomas F. Kelaher became mayor of Toms River, he was the Prosecutor of Ocean County, New Jersey. His office enforced state regulations under a new initiative called "Operation One-Two Punch," that required all home improvement contractors to register with the state of New Jersey and comply with various regulations.

A contractor not registered with the State can be charged with an indictable offense.

As always,

-Request the Contractor's Registration number and liability insurance
-Confirm that they are bonded
-Contact the New Jersey Division of Consumer Affairs Website, http://www.njconsumeraffairs.com/ for the registration
-Contact the contractor's insurance agent to confirm insurance policy
-Contact the Ocean County Division of Consumer Affairs, 732-929-2105 to determine if a contractor has been the subject of any complaints
-If a problems exists, contact your local police

Common Mistakes When Buying a Home

Today’s housing market has been labeled a Buyers Market. This does not mean, however, to throw caution to the wind and let your guard down when shopping for a new home. As you peruse the Listings in the paper or cruise around neigborhoods, keep the following in mind:


1. Resist Living Beyond your means. Very often we see ourselves in the home of our dreams and forget that the dream home we bought could quickly turn into a nightmare. Although a home is an investment, it should be a home that you can afford even if you suffer a short layoff or gap in income for a few months. It is far less stressful to buy a smaller home and gain some financial freedom when it comes to decorating, adding features and unexpected expenses.

2. Do not buy the first home you see. In this market, it is important to take your time and make sure that you have given yourself a chance to see a fair number of homes with different prices, locations and sizes.

3. Waiting for the Perfect Home. On the other end of the spectrum is the attitude that the perfect home is out there, and it will be found one day. Just like in the Samuel Beckett play, Waiting for Godot, where two men find themselves waiting for someone named Godot who never arrives, the problem of searching endlessly for the perfect home results often with most of the homes whose features they seek are being purchased. Or, if they wait long enough, market prices might even go up, leaving a homebuyer spending even more! Understand that it’s important to look for a home that has all of the necessary features your family needs, but don’t expect a perfect home that meets all of your desires in your price range will suddenly appear.

4. Shop around for a Mortgage Lender. It is tempting use the first lender who offers you a reasonable interest rate, but resist this. There are many lenders with many different programs. Ask them frankly not only what interest rate they can offer, but a good faith estimate (GFE). The GFE will show you not only the proposed interest rate, but the lenders fees, such as application, review fees, etc. Also, at the proposed rate, ask what will the payments be? Does that include property taxes and homeowners insurance?? Can you easily afford that? If not, you are taking a risk that may not be justified.

If you keep these points in mind, you would have a great start of finding a new home.

The Tough Housing Market

"NEW YORK (CNNMoney.com) -- The number of Americans losing their homes to foreclosure continued to soar in June, according to a report released Thursday.
RealtyTrac, an online marketer of foreclosed properties, reported that lenders repossessed 71,563 homes in June. A year ago, just 26,369 homes were taken back.
During the first six months of 2008, 343,159 Americans lost their homes, up 136% from 145,696 recorded during the same period in 2007.
The report revealed that foreclosure filings of all types, including notices of default, notices of auction sales and bank repossessions, rose 53% from June 2007, to 252,363. For the first six months, total filings rose 56% to 1.4 million."

If you are faced with major issues such as these, it is important to focus on the solutions. If you have already tried negotiating with the bank, tried contacting a realtor to see if the home could be sold. Be realistic with your price. Make sure that it is priced according to the comparable homes in your area.