03.31.09
Posted in Uncategorized at 11:34 am by Eric
You want to sue your broker for your portfolio’s poor performance? To me, that’s like suing your bartender for your hangover, unless there’s fraud involved (the bartender putting gin in your beer without you knowing it). Still, the courts recognize a slew of potential causes of action that all presume a measure of poor performance: negligence and breach of fiduciary duties (claims that boil down to suitability: “you sold me a stock that wasn’t suitable to my situation”), lack of disclosure, breach of contract (though, interestingly, no reported Michigan decision sets forth the elements of a breach of contract claim against a broker), misrepresentation, and even churning (fraudulent over-trading to inflate commissions).
If you think your broker spiked your beer, see a professional.
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03.30.09
Posted in Bankruptcy/Creditor Rights at 9:29 pm by Eric
One bankruptcy blogger isn’t so sure. From the intro:
We’ve heard Fed Chairman Bernanke and Treasury Secretary Geithner say that there are no legal avenues to clawing back the AIG bonuses. I’m not so sure that’s true. What about good old fraudulent transfer law? That’s a cornerstone of creditor-debtor law. Would fraudulent transfer law apply?
Every state in the union has a fraudulent transfer law. But there is also a special (and virtually unknown) federal fraudulent transfer statute just for the United States government, as creditor. The federal government could, of course, proceed under a state fraudulent transfer law (I’m not sure which state’s law would apply to AIG), but why bother when it could proceed under its own law?
So would the government be able to clawback AIG’s bonuses with a fraudulent transfer action?
Maybe.
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03.25.09
Posted in Uncategorized at 11:42 am by Eric
If your tenant is responsible for utility bills, contact your local utility provider. A municipality can put a lien on real estate for unpaid utility bills, but some municipalities have an ordinance that precludes a lien on leased real estate if (i) the tenant is responsible for the utilities, (ii) the municipality is notified of the lease arrangement, and (iii) a copy of the lease is provided to the municipality.
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03.23.09
Posted in Tax at 11:44 am by Eric
I dislike the IRS. That’s no secret, and most of my clients share the same distaste. But in the spirit of Vito Corleone, I advise my clients to hold the IRS close (keep your friends close and your enemies closer). The best way: Read their publications. The enemy lays out their plans, their ideas, their strategy . . . and the things are well-written and easy to understand, unlike the Internal Revenue Code, the regulations, and tax court opinions. If you want to check out a sample that is relevant to many people, check out their publication on educational savings.
If you want to see a complete list of IRS publications, get started here.
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03.18.09
Posted in Bankruptcy/Creditor Rights at 11:07 pm by Eric
Your tenant go bankrupt? It’s time to analyze. A few possibilities: (1) You have an unsecured, non-priority pre-petition claim for rent and other lease charges that came due due prior to the bankruptcy filing; (2) You have an administrative expense claim for rent and lease charges after the filing; (3) You have an unsecured, non-priority claim for damages for rejection of the lease.
It gets pretty complicated. If you have a lot of money on the line, consult a professional.
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03.11.09
Posted in Tax at 12:09 pm by Eric
Need to know what you’ll be paying for property taxes? Check out this site.
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03.10.09
Posted in Uncategorized at 11:31 am by Eric
You ever wonder why it seems like attorneys engage in double-talk? It’s because they’re always dealing with dual concerns. Consider this fact pattern issue from a recent 6th Circuit Bankruptcy Court decision: “Does a creditor willfully violate the automatic stay when, after receiving notice of bankruptcy, it keeps funds that it received from the post-petition cashing of a pre-petition post-dated check and conditions return of the funds?”
I had to read that three times.
If you’re curious, the answer is “no.” The Court cited a few reasons. The most compelling (in my opinion): Section 362(b)(11) of the Bankruptcy Code exempts from the stay “the presentment of a negotiable instrument and the giving of notice of and protesting dishonor of such an instrument.”
The Court, however, noted that the transfer might be subject to avoidance on other grounds (in other words, the lender might not get to keep the funds after all, but at least it wasn’t subject to penalties for violating the Automatic Stay).
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03.09.09
Posted in Tax at 12:01 pm by Eric
Where are we with the estate tax? One seminar commentator recently offered the following:
Under the Obama plan detailed during his campaign, the estate tax exemption would be locked in at the level which just went into effect in 2009, with 45% estate tax on any excess. That would exempt estates of $3.5 million–$7 million for married couples—from any estate tax. The $1 million gift tax exemption would remain in place. The step-up in basis on death would also remain in effect. This was the essence of HR 436, which was introduced on January 6, 2009.
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