The Buffalo New York Lawyer

Chapter 7 Bankruptcy: Liquidation

04/05/11 @ 05:36:43 pm by admin

What is Chapter 7 Bankruptcy?

Chapter 7 bankruptcy is a liquidation proceeding designed for those experiencing financial difficulty that do not have the ability to pay their existing debts.

The debtor turns over all non-exempt property to the bankruptcy trustee who then converts it to cash for distribution to the creditors.

In the vast majority of cases the debtor keeps all of his property because the debtor has no non-exempt assets for the trustee to distribute. This is called a "no asset case".

In about four months the debtor receives a "discharge" of all dischargeable debts, providing the debtor with a "fresh start".

Although there have been predictions of gloom and doom regarding the new law, Chapter 7 remains a viable option for most individuals that seek it.

What are some of the requirements of the new chapter 7 bankruptcy law?

1) Individuals whose debts are primarily consumer debts are subject to a “means test” designed to determine whether the case should be permitted to proceed under chapter 7. The means test is based on the median income of the debtor's state.

2) Individuals filing Chapter 7 bankruptcy will have to take an approved Credit Counseling Course before the petition can be filed.

3) Individuals filing Chapter 7 bankruptcy will have to complete an approved Financial Management Course before discharge can occur.

4) Individuals filing Chapter 7 bankruptcy will have to provide additional documentation to prove their financial condition.

What is the median income for New York State?

$46,295.00 - 1 Person Family
$57,777.00 - 2 Person Family
$68,396.00 - 3 Person Family
$83,942.00 - 4 Person Family
Add $7500.00 for each additional person

How much does it cost to file a chapter 7?

Costs:
Filing Fee: $299.00

Attorney Fee:
Range $1000.00 - $2500.00 (depends on the circumstances).

Need a Bankruptcy Lawyer?

If you need a Bankruptcy Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.

Tenant Evictions

12/26/10 @ 08:55:56 pm by admin

I DO NOT TAKE OR RETURN TELEPHONE CALLS ON EVICTIONS.

IF YOU WISH TO CONTACT ME FOR A FREE CONSULTATION ON AN EVICTION, OR HIRE ME TO REPRESENT YOU ON AN EVICTION, USE THE LINK AT THE BOTTOM OF THE PAGE FOR A "WEB CONSULTATION". PLEASE READ THE ENTIRE CONTENTS OF THIS PAGE BEFORE YOU DO.

Eviction is a Legal Process. The landlord CANNOT just call the police and have a tenant evicted because he wants the tenant out. The tenant has the right to due process.

There are two (2) types of evictions:

1) Non-payment
2) Holdover

A nonpayment eviction is an eviction for nonpayment of rent. Under New York State Law, a landlord seeking to evict a tenant for non-payment must first give the tenant a chance to pay, by giving the tenant a three-day notice in writing, stating that the tenant has three days to pay all the rent in full or the tenancy will be terminated.

A Holdover eviction is an eviction for remaining on the premises after the lease has expired or remaining on the premises after receiving notice that the lease has been terminated because of a breach of the lease agreement or after receiving notice that the landlord is terminating a month to month tenancy.

Regardless of the type of eviction, the procedure is mostly the same and begins when the tenancy is terminated. In a non-payment case the eviction can start after the three (3) day notice is given and no payment is made in three (3) days. The act of non-payment terminates the tenancy. The holdover eviction can start as soon as the tenancy is terminated because of breach, or after the expiration of the notice period in a month to month tenancy.

Once the tenancy is considered to be terminated the landlord may file in court for eviction. The landlord CANNOT go directly to the sheriff. The landlord must get a court order first. To get the court order, the landlord files a petition and obtains a hearing date. The hearing date MUST be no less than FIVE DAYS from the date of service of the petition on the tenant. The hearing date is required to be scheduled between five (5) and twelve (12) days after the tenant is served with the petition.

Service is made either by having a third party personally hand the petition to the tenant (or other type of personal service). If the tenant is avoiding service it may be made by nailing the petition to the door and sending a copy by mail (Nail and Mail). (Note: If service is made by nail and mail, and the tenant does not make a personal appearance in court, the landlord will be unable to get a money judgment on that day for the arrears in rent, however the landlord will get the warrant.)

The hearing is a summary proceeding. If the judge finds that the tenancy is terminated because of non-payment or for holdover the judge will sign a warrant of eviction. The landlord may also obtain a money judgment for the arrears due in rent if personal service was made or if the tenant makes a personal appearance in court.

Once the warrant is signed by the judge the landlord will then need to submit the warrant to the sheriff. The sheriff must give seventy-two (72) hours notice to the tenant before enforcing it.

The landlord has no right to garnish wages without a money judgment. If the landlord does not get a money judgment during the eviction proceeding, he may sue the tenant in small claims court at a later date.

One other option for a tenant may be to file for bankruptcy. If the warrant of eviction was issued prior to the bankruptcy filing the eviction needs to be cured and future rent needs to be posteded with the bankruptcy court. In some cases, the filing of a bankruptcy case creates an automatic stay of the eviction proceedings against the debtor.

Landlords beware. The landlord tenant law in New York is heavily weighted in favor of the tenant. There are strict procedural rules and if the tenant shows up to court with the back rent money he will not be evicted for non-payment.

Need an eviction Lawyer?

I charge $650.00 plus costs for an eviction in the City of Buffalo and $550.00 plus costs for an eviction in the suburbs located in Erie County and the City of Lackawanna and the City of Tonawanda. Costs usually total about $100.00, for process service and filing fees.

Terms and Conditions of Representation

Landlords, you also agree to the following: If you retain me to do an eviction, and then you change your mind (like if tenant moves out and you no longer need the eviction), you do not get a refund of the attorney fee only the unused portion of the costs are refunded. I do not refund the attorney fee because I have to often drop what I am doing and reserve time in my schedule to do your work, in an expidited manner, at the expense of my other clients. I will however, waive my fee on your next eviction, excepting the court costs (so long as no court appearances have been made), even though I may have done a lot of work on the first eviction case. Period. No exceptions to this rule.

If you need an eviction Lawyer please click WEB CONSULTATION for a free web consultation.

NYS Point System

10/27/10 @ 03:04:22 pm by admin

How many points do you have on your license?

Speeding - MPH over speed limit not indicated - 3
Speeding - 1 - 10 MPH over speed limit - 3
Speeding - 11 - 20 MPH over speed limit - 4
Speeding - 21 - 30 MPH over speed limit - 6
Speeding - 31 - 40 MPH over speed limit - 8
Speeding - 40 or more MPH over speed limit - 11
Reckless driving - 5
Failing to stop for a school bus - 5
Inadequate brakes - 4
Following too closely - 4
Passing improperly- 3
Changing lanes unsafely - 3
Driving to the left of center- 3
Driving in the wrong direction - 3
Failing to obey a traffic signal - 3
Failing to obey a Stop sign, or a Yield sign - 3
Railroad crossing violation - 3
Failing to yield the right-of-way - 3
Passenger safety violation, seat belts, child safety seats, or passengers under age sixteen - 3
Left the scene of an accident that includes property damage or the injury of a domestic animal - 3
Other moving violations - 2
Inadequate brakes (vehicle of an employer) - 2

When will points cause my license to be suspended or revoked?

If you receive 11 points or more in eighteen (18) months (calculated from date of violation), the DMV will suspend your driver license.

The DMV must revoke your driver license if you are convicted of three speeding violations within an 18-month period no matter how many points you have.

What Do Tickets Actually Cost
Your insurance rates may increase. For Instance, If you are convicted for a speeding violation, your insurer may tack a temporary charge on your insurance policy for three years. Your rate could increase as much as 25% depending on the circumstances.

New York also added a new surcharge of $100 per year for three years if you get six points, plus $25 per year for each additional point.

Need a Vehicle and Traffic Law Lawyer?

If you need a Vehicle and Traffic Law Lawyer please call the number listed above or click HERE to request a free consultation.

Most VTL violations can be handled for a fee of $100.00 - $350.00 without the client's appearance in court.

Path of a Criminal Case

10/27/10 @ 02:49:05 pm by admin

Arrest

You were arrested because a police officer had probable cause to believe that you committed a violation, misdemeanor, or felony. If you are charged with a misdemeanor or felony it is probable that you will be formally arrested and physically detained and later arraigned and required to post bail to ensure future appearances in court. If you are charged with a violation, you may not have been formally arrested and physically detained, but you may have been given a ticket that requires you to appear in court at a specific date, time, and location.

Booking

If you are charged with a misdemeanor or felony, at some point you will be taken to the police station for booking where your fingerprints and photograph will be taken. A report of your criminal history (rap sheet) will also be prepared.

Arraignment

If you have be formally arrested and physically detained you will usually be arraigned within twenty-four (24) hours of your arrest. The purpose of the arraignment is to formally advise you of the charges against you and to decide whether you will be released pending prosecution. The judge will have to decide whether he will release on your own recognizance without bail, whether he will set bail to ensure your future appearances in court, or whether he will hold you in jail without bail (remand).

Plea Bargaining

After the arraignment, your case will usually be adjourned for further proceedings. Upon the return to Court, your lawyer and the prosecutor will discuss settlement of your case. The plea bargain is the settlement. Usually the defendant will agree to plead guilty to a lesser offense in satisfaction of all the charges. The plea agreement must also be approved by the judge.

Grand Jury

If you are charged with a felony and your lawyer and the prosecutor are unable to reach an agreement on the plea, your case will be presented to the Grand Jury.

The grand jury is made up of sixteen (16) to twenty-three (23) people who listen to the evidence of the prosecutor and decide whether to put you on trial for a felony. If the grand jury decides that there is enough evidence, they will vote for an indictment. You may not be put on trial for a felony in the State of New York without having first been indicted by the Grand Jury, unless you give up that right.

Pretrial Motions

Pretrial motions are motions made by your lawyer to the Court designed to weaken the prosecutions case against you or to have the charges dismissed against you altogether. There are many different motions that can be presented to the court and some of them will require a hearing.

Trial

If your case survives pretrial motions, and you continue to refuse to plead guilty, your case will go to trial. A judge or a jury will decide whether or not the prosecutor has proven your guilt beyond a reasonable doubt.

If you are charged with a felony and refuse to waive your right to a jury trial, twelve (12) jurors will decide your case. If you are charged with a class A misdemeanor, and refuse to waive your right to a jury trial, six (6) jurors will decide your case. If you are charged with a Class B misdemeanor or less, your case will be tried before a judge.

Sentencing

If you plead guilty, or are found guilty after trial, you will be sentenced. If you are convicted of a misdemeanor or felony the Department of Probation will usually prepare a pre-sentence report for the judge containing information about your background and the circumstances of the crime. Your lawyer and the prosecutor may also prepare pre-sentence memoranda for the judge.

The sentence you receive will depend on your background, and the circumstances of the crime. The types of sentences include jail or prison terms, probation, conditional discharge, unconditional discharge, restitution and fines.

Appeal

After you are sentenced, you have a right to appeal your conviction or sentence, unless you have waived the right to appeal as part of a plea bargain. Some rights of appeal may never be waived.

Need a Criminal Law Lawyer?

If you need a Criminal Law Lawyer please call the number listed above or click HERE to request a free consultation.

Uncontested Divorce NY (Default Divorce)

10/12/10 @ 05:50:48 pm by admin

NO FAULT Divorce is Now Available in New York State

Uncontested Divorce or Default Divorce is the most inexpensive and discreet way for people to obtain a divorce in the State of New York. It only works, however, when both parties are in agreement about the terms of the divorce (or the Defendant fails to answer the Summons in the case of default divorce). Such terms include: custody, child support, maintenance (formerly called alimony), and distribution of marital assets.

What are the advantages?

a) Neither party will be required to appear in court.

b) Low cost

What are the disadvantages?

a) It is not fair if one spouse dominates the other in the negotiation process.

b) Will not work if the parties are unable to talk rationally with one another about settlement.

c) Only one party is represented by an attorney.

How It Works?

The first thing you need to know about uncontested divorce is that the lawyer you get to do your uncontested divorce cannot represent both of you. Typically the lawyer will meet with the party that initially made contact and enter into a retainer agreement. The lawyer will work with that party to draft an agreement that is likely to be acceptable to both parties. The lawyer will also produce additional documents that the unrepresented party will have to sign to avoid going to court.

After the documents are produced, the client will deliver the proposed document's to the unrepresented party for review. If the unrepresented party feels uncomfortable signing the papers he or she is encouraged to hire a lawyer for the purpose of reviewing the papers. Once the parties are both satisfied with the proposed papers the divorce agreement is executed by both parties and the unrepresented party executes the documents necessary to avoid going to court.

Once the unrepresented party executes the documents more documents are prepared by the represented party and submitted to the court for review and signature.

How long does it take?

Uncontested divorce can happen faster than people realize. I once obtained a divorce for a couple in twenty (20) days, but it usually takes six (6) to twelve (12) weeks if there are no complications.

How much does it cost?

The minimum expenses and court costs for an uncontested divorce in the State of New York are about $350.00 (does not include attorney fees).

The attorney fees for uncontested divorce vary widely. Some lawyers charge as much as $2500.00, and others advertise that they can do it for as little as $250.00 (they usually don't mention the costs).

In general, beware of the lawyer who charges $250.00 because he or she will likely have organized his or her practice around an extremely high volume of divorces and relatively little time will be spent with individual clients, and he or she will expect to increase the fee if children are involved, if any significant assets or unusual debts are involved, or if anything else about the divorce requires that he or she spend significant time on the divorce.

Also beware of the cheap "do it your self" internet divorce companies because you will most certainly be doing all the work with little or no direction. In the end you will wind up paying a lawyer to fix your mess after the court rejects your papers. Remember, if it sounds to good to be true it is, and there is no such thing as a free lunch.

In addition, please understand that there may be additional costs and attorneys fees associated with real estate transactions and other transactions necessary to complete the terms of the agreement that are not included in the price for divorce.

My rates for an uncontested divorce are as follows:

Minimum Costs:
$350.00 (index number, RJI, note of issue, dissolution, certified copies)

Attorneys fee:
Range $800 to $1500.00 (depending on the circumstances)

Need a Divorce Lawyer?

If you need a Divorce Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.

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If you want to get more information on Uncontested Divorce, click HERE to go to my other website devoted entirely to the subject of Uncontested Divorce;

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If you want to get started on your Uncontested Divorce Now, click HERE to make a secure payment.