I am pleased and humbled to announce that the attorney ranking site, Super Lawyers has named me to their 2018 Rising Stars list in the practice area of General Litigation. Only 2.5% of those attorneys 40 years old or younger or in practice for less than 10 years can be named Rising Stars, based upon a selection process incorporating peer reviews, published decisions and other factors. It is wonderful to have such great relationships with so many other attorneys and legal practitioners and I am honored to receive their selection.
The United States Bankruptcy Court for the Southern District of Indiana recently ruled in favor of a Mulvey Law client, after a three-day bench trial, on all claims of a former business partner who wrongfully alleged fraud, breach of fiduciary duty, and malicious injury to property. The Court found "no proof" of "improperly converted funds", that "the unrefuted evidence shows that [Mulvey Law client] managed [the company] properly and made a good faith effort to pay off its obligations, at times with his personal funds" and that "it is most likely [plaintiff, not Mulvey Law client] accessed the proceeds from [company funds] for his personal benefit." As a result, the plaintiff's claims, in excess of a million dollars, have been completely resolved in favor of Mulvey Law's client. See the attached for the full opinion, and contact Mulvey Law if you have a business dispute, particularly one relating to claims of nondischargeability in bankruptcy.
Earlier this month, the United States Bankruptcy Court for the Southern District of Indiana ruled in favor of Mulvey Law client Abbegail Lynn Cox, after a trial in February, in an action brought by the United States Trustee for denial of bankruptcy discharge. The decision preserves Ms. Cox's legal right to discharge approximately $30,000.00 worth of consumer debt, and allows her (a full-time working single mother of two) a debt-free fresh start. See the full opinion attached. Gargula v. Cox (In re Cox), 2017 Bankr. LEXIS 2537 (Bankr. S.D. Ind., Sept. 7, 2017).
Indiana law, like most states, provides for certain exemptions, which are types and amounts of property interests that every person is entitled to keep free from creditors. These exemptions are set forth at various points in the Indiana Code, and, since the legislature doesn't address these exemption amounts very frequently, they are tied to an administrative code section (750 IAC 1-1-1) that is periodically amended to account for inflation and cost of living increases.
One of the most important of these exemptions in Indiana, because it is unlimited in amount, is real property owned as tenants by the entireties. This odd-sounding terminology essentially provides that real property owned by two persons as spouses is exempt from execution (seizure and sale to satisfy debts) by any creditors unless those creditors are joint creditors of both spouses (such as is typically the case when the spouses apply for a mortgage together to purchase the property). The property is said to be owned by the marriage collectively, not by either spouse individually.
In other words, you cannot create a tenancy by the entireties unless the property is deeded to both spouses, after the parties are married. Similarly, the tenancy by the entireties terminates upon divorce into a tenancy in common (which lacks the unlimited exemption protection, limiting you to the $19,300.00 personal residence plus $10,250 real or tangible personal property exemptions).
Thus, for example, say you purchased your property back in 2000, paid off the mortgage, then got married. If you then deeded the property from yourself to yourself and your spouse as husband and wife (or husband and husband or wife and wife) as tenants by the entireties, and properly recorded that deed, then neither of you can encumber or transfer the property without the other, and no creditor of just one of you can ever seize the property to satisfy debts while you are married. Even if you individually have $200,000.00 in unpaid student loan debts and credit cards, and the house is worth a million dollars, so long as its titled to you and your spouse as tenants by the entireties, and you remain married and don't have joint creditors, all of that equity is protected.
So if you are recently married or about to get married, and you owned real property individually prior to your marriage, you may want to think about having a deed prepared and recorded to claim the entireties exemption. Additionally, you should think carefully about taking on any debts jointly unless absolutely necessary (such as with a first mortgage).
This article is designed to provide a basic understanding of concepts of the law. The law, however, is very much subject to change and to interpretation by different courts. Additionally, the applicable law varies from situation to situation. Accordingly, this article should be viewed as educational in nature, and not to be considered as either legal advice or a substitute for competent advice from a qualified attorney. Mulvey Law LLC and the author of this material encourage that you seek independent legal counsel to address any questions pertaining to particular issues or situations which you may encounter.
Beware of Dog
Did you know that a sign advising to "Beware of Dog" is required to avoid liability for an animal attack that occurs on your property? Even if your dog is in your yard with a six foot high fence and the gate is locked, should some child climb over it to retrieve a frisbee or a power company employee opens it to read the meter and that person is injured by your dog, you do not have a valid defense unless "there was posted at the main entrance of the enclosure a notice to beware of the animal", per Indianapolis Municipal Code 531-109.
Now there is an exception/separate defense if "the person was attacked during the commission or attempted commission of a criminal act on the property of the owner or keeper of the animal", but otherwise that sign is an absolute must. Since the minimum fine for an unprovoked animal attack is $500, plus liability for any actual damages caused, you may want to invest in one of those signs the next time you're at the hardware store.
Disclaimer: This article is designed to provide a basic understanding of concepts of the law. The law, however, is very much subject to change and to interpretation by different courts. Additionally, the applicable law varies from situation to situation. Accordingly, this article should be viewed as educational in nature, and not to be considered as either legal advice or a substitute for competent advice from a qualified attorney. Mulvey Law LLC and the author of this material encourage that you seek independent legal counsel to address any questions pertaining to particular issues or situations which you may encounter.
Did you know that Federal law prevents mortgage companies from pursuing a foreclosure at the same time they are communicating with a borrower about a potential loan modification, unless very specific procedures are followed? This tactic, called "dual-tracking" was rampant in the mortgage servicing industry from 2008-2013 during the worst of the financial crisis, and was prohibited by legislation that went into effect on January 1, 2014. See 12 C.F.R. 1024.41. If you or someone you know has had their home foreclosed upon since the start of 2014, while in the process of discussing or applying for a loan modification, there are ways to recover some of those losses--without coming out of pocket for attorney's fees.
Read more at http://www.consumerfinance.gov/newsroom/consumer-financial-protection-bureau-rules-establish-strong-protections-for-homeowners-facing-foreclosure/
Contact us if this situation sounds familiar to you or someone you know.
The lack of licensed attorneys willing to assume responsibility for routine family law matters is a universal concern for pro bono legal service providers. Although volunteer programs such as the IndyBar’s Legal Line and Ask A Lawyer events provide general information to direct those with legal needs in the right direction, these independent events do not provide the ongoing legal services often necessary to fully resolve a particular issue.
Although assuming responsibility for a pro bono legal matter is a healthy step forward in commitment from a closed-ended legal advice session, the need is great. There are resources out there to assist you, and the benefit provided can be tremendous. Here are some frequently asserted reasons for not taking a pro bono family law case, and some responses.
Merchants accepting credit cards face a dilemma—as much as six percent (6%) of the funds received when a customer pays with a credit card are applied to transaction fees, also known as “swipe fees” which are payable to a combination of the credit card company, various global, regional and local credit card processors, and financial institutions. Until recently, merchants were barred by the merchant agreements governing the relationship between the major credit card companies and the average merchant from passing along such fees directly to their credit card-using customers. Violation of such prohibitions could result in fees and/or the refusal of credit card companies to allow merchants to accept credit cards.
In the first regular session of 2011, the Indiana General Assembly made certain amendments to Article 9 of the Uniform Commercial Code (“UCC”), as enacted in Indiana under Ind. Code § 26-1-9.1-105 et seq. (all subsequent references to “§” numbers refer to the Indiana Code). These changes, which will take effect on July 1, 2013, were recommended to states generally by the Uniform Law Commission and the American Law Institute in the summer of 2010. Though the full text document reflecting the changes to Indiana law is available free of charge from the State of Indiana’s website, and we have provided a chart tracking each of the changes made, this article serves as a summary analysis of the changes to the UCC that will likely have the most wide-ranging impact on Indiana businesses.
By way of a brief preamble, Article 9 of the UCC addresses the law relating to the creation, perfection, and modification of security interests in collateral, as well as numerous other issues relating thereto. Although there were over sixty individual changes to the UCC as result of the 2011 Amendments, the most significant changes relate to the following areas: (i) definitional changes, including what it means to be a registered organization for purposes of the UCC; (ii) changes to how a debtor’s ‘name’ must be stated on a financing statement; and (iii), amendments relating to the way a debtor’s change in location is addressed.
Problems of Dealing with Limited Liability Company Interests(originally published in the Fall 2011 Edition of NABTALK, the Journal of the National Association of Bankruptcy Trustees)
Trustees are often faced with reviewing Debtors’ interests in businesses. As the tax benefits of pass-through entities became more popular, Debtors chose the Subchapter “S” Corporation (“S-Corporations”) format for their businesses. However, there were restrictions regarding the nature and number of shareholders in S-Corporations and the number of classes of stock ownership. The Limited Liability Company (“LLC”) became the answer to the SCorporation restrictions, since LLCs did not have to conform to all such restrictions.
Unlike corporations or partnerships, LLCs present unique issues. LLCs are formed by filing Articles of Organization with the appropriate state government agency on a prescribed form. The governance of the LLC is typically set forth in an Operating Agreement. The LLC can be managed by its members or a manager. If the LLC is run by a manager, the role of a Bankruptcy Debtor Member may become just a passive activity, simply waiting for periodic distributions from the LLC, provided it is profitable.
Joseph Mulvey, Owner and Attorney.
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Joseph Mulvey Direct: 317.721.1339
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Indianapolis, IN 46204
Super Lawyers Rising Star 2018-2022