AN ESTATE PLAN IS CRITICAL 

IN SECURING YOUR FAMILY’S FUTURE

An Estate Plan – irrespective of the size or composition of the estate – is an essential means to protect your family’s future wealth and financial well-being.  Even the most basic Estate Plan consists of a Will, Living Will and Power of Attorney.

The basic will should identify the Testator (the person making the will), revoke all prior wills, and may also provide for the disposition of specific items of the estate (bequests), such as stamp collections or articles of jewelry.  In the will, reference can be made to a separate document – to be found with the will – which can also legally dispose of these items of person property.  Such a separate document, if properly executed, kept and ultimately found with the will, can be changed to make a new disposition, without the need for changing the entire will.  The will may also identify those parties who will receive the balance of the estate after these specific bequests are made (called the “residuary estate”).

The Testator may also appoint other persons to carry out certain duties for the estate, such as the Executor, Guardian and Trustees.  An Executor is given the task of ascertaining the extent of the estate, collecting all of the assets of the estate and distributing them to the beneficiaries under the will after the estate debts have been paid.  The Guardian will be appointed in the event that there are children under legal age who will require to be cared for in the event of the death of either or both parents.  In the event that there are assets being left to minor children, a Trust will be created for the benefit of such minor children.  A Trustee will be appointed to administer such trust assets for the benefit of each such minor child until the child reaches the age at which the Testator directs that such child will receive the principal of the trust.

The will must be signed by the Testator and two (2) witnesses, and a self-proving affidavit may be used so as to obviate the need for those witnesses to appear and testify before the Surrogate when the will is submitted for probate.   

As for a living will, the person signing the living will may not only appoint a Healthcare Representative who is given the responsibility to make healthcare decisions when the “Testator” cannot, but the living will may also outline what medical treatment is required to be provided or withheld, and may also provide for the donation of organs.

A power of attorney is also a key document in the Estate Plan.  The power of attorney allows one to select a person (or persons) to act on one’s behalf to make financial and personal decisions.  Such power can be granted to take effect only once the provider of the POA becomes incapacitated and remains through the course of such incapacity (a “springing” POA), or grants that power outright to the holder from the time of the signing (a “durable” POA since it remains in effect from the time of the signing through any subsequent incapacity).  However, care must be taken in selecting the type of power of attorney.  For example, in selecting a durable POA, one might be sacrificing security in exchange for the ease of use. 

In preparing the Estate Plan, consulting with your attorney, your financial advisor and your accountant are all keys in assuring that all of your estate planning goals are taken into consideration.  In any event, an Estate Plan will provide you with peace of mind.  

This blog post is not considered to be legal advice, and is intended for educational purposes only.  For more information regarding any of the foregoing issues discussed above, please contact Robert F. Schillberg, Jr. (rschillberg@schillberglaw.com).

Bankruptcy As An Option In Fighting Foreclosure

I am often asked about bankruptcy as a possible option in defending against a foreclosure matter. Depending upon the ultimate goal of the homeowner, bankruptcy may be a valid option to be used as part of the fight against the lender in a foreclosure matter. However, the goals of the homeowner (whether they wish to remain in the property, negotiate a modification, sell the property, or simply walk away from the property with no further obligation in the future) must be taken into account when determining whether the filing of a bankruptcy while in foreclosure is a viable option, as well as considering the addition negative effect that a bankruptcy may have on one's credit report.

 

The first advantage of filing a bankruptcy is the automatic stay provision in which all litigation involving the homeowner (foreclosure actions, litigation to obtain judgment on credit card debt, other personal debts), will effectively be placed "on hold" pending the outcome of the bankruptcy matter.  However, the lender may seek an order from the bankruptcy court permitting the foreclosure action to be removed from the stay provisions and allow the foreclosure action to continue if the property is "underwater", since the bankruptcy trustee will have no equity in the home with which to pay down other debts.

 

Another advantage to the homeowner  may be obtained through bankruptcy by having any liability for the mortgage debt (the note) be "wiped out" by the bankruptcy, leaving the lender with the only option of pursuing the value of the property in foreclosure.  This option may be effective for homeowners who wish to leave the property  without any further exposure for a "deficiency judgment."

 

There are many other advantages, as well as disadvantages, to any decision relating to filing for bankruptcy, especially when one is faced with a foreclosure. However, it is important to consult with an attorney before making any decision relating to bankruptcy, which may affect your legal rights.

 

In the future in this blog, we will discuss other various defenses and counterclaims available to protect your rights and discover how they might help YOU save YOUR HOME.

Don't just sit there; fight the good fight!

This blog post is not considered to be legal advice, and is intended for educational purposes only.  For more information regarding any of the foregoing issues discussed above, please contact Robert F. Schillberg, Jr. (rschillberg@schillberglaw.com).

Fighting Your Lender In A Foreclosure Litigation Forum

I am often faced with the dilemma of clients who have been served with a foreclosure complaint by their lender - months ago!  Although the tendency to "bury your head in the sand" and hope the problem goes away may be understandable, such delay may be fatal to defending yourself in the foreclosure litigation.  But all hope is not lost.  In New Jersey, you may be able to open a default (or even a final judgment by default) provided you have a valid excuse to the court for the delay and a valid defense to the litigation action. 

Fortunately, however, if your time to interpose an answer to the foreclosure action has not yet expired, your first order of business is to contact an attorney to discuss your matter and obtain legal representation.  An attorney will be able to prepare and serve an answer on your behalf and raise various affirmative defenses and/or counterclaims against the lender for their actions during and before the foreclosure process, or even for improper actions in approving and issuing the loan in the first place.

At Schillberglaw, we have been successful in not only stopping the foreclosure process and allowing the default (or final judgment) to be opened so as to interpose an answer and raise such valid defenses and counterclaims as a way to stop the foreclosure process, but those actions have been a vital tool in compelling the lender to review and modify the loan to a more affordable payment plan and save the home.

In the future in this blog, we will discuss these various defenses and counterclaims available to protect your rights and discover how they might help YOU save YOUR HOME.

Don't just sit there; fight the good fight!

This blog post is not considered to be legal advice, and is intended for educational purposes only.  For more information regarding any of the foregoing issues discussed above, please contact Robert F. Schillberg, Jr. (rschillberg@schillberglaw.com).

Can I Renegotiate My Mortgage With My Lender?

     One of the questions I hear most often is whether a homeowner who is having trouble making payments on their mortgage can negotiate with the lender, even if the property is in foreclosure litigation. After all, the homeowner reasons, since they have not been making payments and their credit report has taken a major hit, no lender would want to have a risky mortgage on its hands.
     However, while it is not likely that a new lender would provide a refinance out of a troubled mortgage that is in foreclosure, all hope is not lost.  The fact is, most lenders will consider a mortgage modification, either in accordance with federal guidelines or under the lender's own modification guidelines, in an effort to keep a distressed property off their books. 
     Better yet, at Schillberglaw we have found that vigorously defending the foreclosure action in court while, at the same time, attempting to negotiate a mortgage modification, is often an effective strategy in obtaining a mortgage modification that is in the best interests of the client.  
     In our next post, we will discuss litigation strategies that might assist in obtaining a mortgage modification.

Don't just sit there; fight the good fight!

Consider All Of Your Options In Fighting Foreclosure

So you are behind on your mortgage payments, "underwater" (where the value of your home is less than the amount that you owe on your mortgage(s)), or even facing a foreclosure/sheriff's sale.  You dread opening your mail every day, fearful every time the phone rings, or afraid of strangers showing up on your doorstep.  You feel as if you have nowhere to turn.

Don't bury your head in the sand, and hope the whole thing will simply "go away"; there are alternatives if you keep your wits about you, resolve to fight back and consult with an attorney to discuss your options.

Some of these options may include negotiating with your lender; fighting to stop the foreclosure process, no matter at what stage the matter may be; filing for bankruptcy; or negotiating a "short sale" of the property (where the property is sold to a buyer in an "arm's length transaction") and the lender accepts less than the amount owed in full satisfaction of the debt.

In the future on this blog, we will discuss these legal options to protect your rights and discover how they might help YOU save YOUR HOME.

Don't just sit there; fight the good fight.       

Keeping a Watchful Eye on Your Credit Report



In response to the rapidly increasing growth of identity theft, the three major credit bureaus (Equifax, Experian and TransUnion) have recently allowed consumers the right to cut off all access to their credit files.  In theory, once your credit report has been “frozen” with each of the three credit reporting bureaus, it will be virtually impossible for anyone – including YOU -- to get access to your credit report and use that as a basis for obtaining credit fraudulently.  That certainly appears to be an excellent idea for most consumers, but is this right for you?  There are certain considerations you must take into account before taking this step to further protect your credit.

Generally speaking, all that is required is for you to send a written request, with proof of ID, to each of the three credit reporting bureaus in order for a “freeze” to be fully effective.  When one considers that the bureaus can charge up to $10 each to place a freeze in effect and that the freeze will stay in place permanently, that may be a cost-effective way to protect your credit, even less expensive than a monthly credit reporting service.  However, be aware that once your account is frozen, you, too, are unable to get credit approval, thereby requiring you to contact each of the bureaus to temporarily “unfreeze” your files when you want or need credit, which may take time and, moreover, may cost you another $10 to unfreeze each of your accounts.

There are other ways, however, to protect your credit report without having to take the drastic step of freezing your file.  You can arrange for a credit reporting service to contact you by e-mail to advise if there is any inquiry or negative activity on your file.  Alternatively, you can contact the credit bureaus and place a 90 day fraud alert on your file, which will tell lenders that they should take extra steps to verify the identification of the person seeking credit.  Unfortunately, these alerts only last 90 days and must be renewed every three months.  One should at least take the basic steps of reviewing your credit report regularly to check for any unauthorized activity.  Since federal law allows you to a request a free credit report from each of the three bureaus every year, you can stagger your request for a free credit report from one of the three credit bureaus every four months.

If, while reviewing your credit report, you do note a discrepancy or other error, you must write to each of the bureaus to request that they correct the error immediately.  Under the Fair CreditReporting Act, credit bureaus are required to correct inaccurate information once you make them aware of the error.  In order to request a correction or to dispute an error, send a letter to the credit reporting bureaus, which will trigger an investigation and the bureau will initiate an inquiry with the creditor.  If the creditor cannot confirm the disputed information as beingcorrect, the credit bureau is required to remove the information.

Since recent studies have shown that up to 25% of credit reports have such mistakes that are serious enough to cause a denial of credit, it is important for you to vigilantly confirm the accuracy of your credit bureau report on a regular basis.

ROBERT F. SCHILLBERG, JR., is an attorney licensed in New Jersey and New York, with an office in Red Bank, New Jersey, practicing primarily in the areas of business and corporate law, civil litigation, municipal court, and residential/commercial real estate.