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Wednesday, December 31, 2014

NC LLC Operating Agreements Even More Important Due to Changes in North Carolina Law

NC LLC Operating Agreements Even More Important Due to Changes in North Carolina Law:


In this video, business law attorney Jason McGrath answers the question of why the change in North Carolina law makes it even more crucial that limited liability companies - LLCs - have a written operating agreement.


https://www.youtube.com/watch?v=TFZkqOQn-5c

Tuesday, December 23, 2014

Estate Planning New Year Resolutions

Your Estate Planning New Year Resolutions:


In this video blog, attorney Stephen Romeo discusses the importance of reviewing your estate planning documents. New Year's Day, the time of year when people begin new resolutions and plan for the year ahead, is an opportune time to determine whether your Will, Trust or other important documents need to be updated.


https://www.youtube.com/watch?v=ETBGhovkMwk

Monday, December 22, 2014

Wells Fargo Foreclosures - the Grinch Methodology

Foreclosures: Does Wells Fargo use 'How the Grinch Stole Christmas' as its Foreclosure Manual?


Attorney Jason McGrath describes how, due to its improper foreclosure, loss mitigation / mortgage relief, and loan servicing practices, Wells Fargo is a lot like the Grinch who stole Christmas. WF could do much better if it cared to, but instead it frequently violates state and federal law, resulting in devastating consequences for many our citizens.

Monday, December 8, 2014

Your Business Law Dispute & the College Football Playoffs - Who Controls Your Destiny

Your Business Law Dispute and the College Football Playoffs - Who Controls Your Destiny?


In this video, business law attorney Jason McGrath discusses what the college football playoffs and your legal case have in common, and some of the advantages and disadvantages of a lawsuit versus a negotiated settlement. Whether it's a business law dispute or a more personal one, the issues discussed here are extremely important ones to consider even at the start of a dispute.


 

Legal Advice on Problems in Business Contracts: Strategic Thinking Versus Knee Jerk Reaction

Legal Advice on Problems in Business Contracts: Strategic Thinking / What Does Your Attorney Advise You?


In this video, attorney Jason McGrath discusses how a business law attorney can - or should - handle mistakes and other problems found in contracts. The approach Mr. McGrath discusses is not the obvious one. Does your business law attorney think it through in depth, considering the bigger picture, and employ strategic thinking or just go with the standard, knee-jerk reaction when (s)he renders you advice?


Sunday, November 23, 2014

Is the Advice You're Getting Specific to North Carolina's Unique Foreclosure Laws?

Waving Flag of  North CarolinaNorth Carolina Foreclosures: Is the Advice You're Getting Specific to NC's Unique Foreclosure Laws and Process?


(Alternative Title: Some Dude in CaliforniaFloridaNevada Wrote it on the Internet, so it Must be Right)


In this video, North Carolina attorney Jason McGrath discusses the fact that many persons involved in a foreclosure or mortgage loan dispute, or involved in a mortgage relief / loss mitigation situation, turn to the internet or some "unofficial source" for information and/or sign up with some out of state organization or "law firm" for help. So while your Florida based "mortgage relief specialist" or your "national network of attorneys" headquartered in California may not (or may) be scamming you, do they actually understand NC's laws and process and customize their advice and services accordingly?


 

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McGrath & Spielberger - New Location - Same Great Service

New Address for Firm's Charlotte Headquarters!


Our new long-term home is in the very heart of SouthPark and will accommodate the Firm's continued growth.


We look forward to serving your needs from South Charlotte. Please note that there are no changes to our phone numbers, fax number, or email addresses.

McGrath & Spielberger, PLLC


6201 Fairview Road, Suite 330


Charlotte, NC 28210


Phone: 704-271-5000 or 800-481-2180


Fax: 800-962-7158  


Email: info@mcgrathspielberger.com

Friday, November 14, 2014

Medicaid, Medicare, and Aid and Attendance - What's the Difference?

Medicaid, Medicare, and Aid and Attendance - What's the Difference?


One of the issues that I come across in my practice is that there is great confusion as to the difference between Medicare, Medicaid and Aid and Attendance when it comes to elder care planning. Although each of them are government programs that assist covering the cost of long-term care, each of them have a very different set of requirements and provide very different amounts of coverage.

Medicare: I am not going to go into a list of all of the services that this provides because most the services are outside the scope of the long term care, but Medicare is a federally-sponsored program that focuses on acute care (care for where the focus is on recovery) for eligible people aged 65 or over or who would otherwise qualify (they are on SSDI, for example). Thus, most of the expenses that Medicare would cover would include doctor's visits, prescriptions and hospital stays. Medicare does however, provide a long term care benefit for the first 100 days of a person's stay in a long term care facility that accepts Medicare. Provided other requirements are met (you had a recent hospital stay of three days,  your are in a Medicare-complaint facility, and you require skilled care), Medicare will pay for 100 percent of the cost of long term care for the first 20 days and then will pay the balance over $140.00 from days 21-100. On day 101, however, Medicare ceases provide any long term care assistance. Since the typical elderly person requires long-term care for at least six months, it is not a complete solution.

Medicaid: Unlike Medicare, Medicaid is a government program that is provides for long term custodial care, both in nursing homes and assisted living facilities, but also for home health care. Medicaid is funded jointly between the federal and individual state governments and is administered at the state level. While each state may have its own set of regulations regarding qualifying for Medicaid, they cannot run counter to the federal regulations that govern the program. As written on this blog previously, because Medicaid is designed for people with limited income and resources, the requirements are strict, and the penalty for transferring money for the purposes of becoming eligible for Medicaid are even stricter.

American flag on handsVA Aid and Attendance: The Department of Veterans Affairs provides an improved pension to veterans who qualify for the basic VA pension and require long term care assistance. A veteran would qualify for an increase in his or her pension to cover the cost of long term care if the veteran would already qualify for a basic pension and

(1) he or she requires the aid of another person in order to perform personal functions required in everyday living, such as bathing, feeding, dressing, attending to the wants of nature, adjusting prosthetic devices, or protection from the hazards of the daily environment;

(2) he or she is bedridden, in that the disability or disabilities requires that the veteran remain in bed apart from any prescribed course of convalescence or treatment;

(3) he or she is a patient in a nursing home due to mental or physical incapacity; or

(4) his or her eyesight is limited to a corrected 5/200 visual acuity or less in both eyes; or concentric contraction of the visual field to 5 degrees or less.

Source: http://www.benefits.va.gov/pension/aid_attendance_housebound.asp

A veteran can receive up to $20,795 per month tax free, if he or she qualifies. If his or her spouse requires benefits, then the maximum is greater. Unlike Medicaid and Medicare, the benefit paid can be used in any manner possible, so there is no requirement that someone has to stay in a Medicare or Medicaid compliant facility. Furthermore, unlike Medicaid, you can keep up to more than $50,000 of countable assets and still qualify. Finally, with the VA Aid and Attendance pension, as of today, there is no transfer penalty, so a veteran with $400,000 in countable assets could transfer property outright or via an irrevocable trust and still qualify. If someone chooses to do that, it is highly recommended that they contact an Elder Law attorney for assistance, because if the transfer is not made properly, it could jeopardize future Medicaid eligibility.

Tuesday, November 4, 2014

Mortgage Loan Servicers - Illegal Delays and Denials of Modification and Loss Mitigation

Illegal


Mortgage Loan Servicers -  Illegal Delays & Denials of Modification & Loss Mitigation


Large mortgage loan servicers often illegally delay & deny modification & other loss mitigation / mortgage relief attempts. In this video, attorney Jason McGrath discusses some of these issues.

We hope that you find this video helpful. While we do assist clients with mortgage loan and foreclosure matters, please keep in mind that this video is informational in nature, and does not provide any legal advice.

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Wednesday, October 22, 2014

National Estate Planning Awareness Week

It is National Estate Planning Awareness Week and the American Bar Association is helping to raise awareness of the need for estate planning with a FREE webinar for the non-lawyer public called Estate Planning: How to Get Going and Why Not to Do It Yourself. It will be on Thursday, October 23, at 1:00 p.m. (EDT) and will provide a set of practical first steps for estate planning as well as information on how a "do it yourself" plan may actually be worse than doing nothing.

Help us raise awareness of this free webinar in your community! Please tell the community organizations with which you're involved and local media about it so they can help ensure that the public is informed. Visit the American Bar Association website to download the news release and article.

If you would like more information about the webinar, visit www.estateplanhelp.org.

 

Monday, October 6, 2014

Social Security Disability: The Two Types of Programs Available

"SoDisability Rightscial Security Disability" is used generally by people to refer to programs in place at the federal level that allow you to receive benefits to support yourself when you are suffering from a disability and are unable to obtain gainful employment due to that disability. In reality, there are two distinct programs run by the Social Security Administration (SSA) that make up "Social Security Disability": Social Security Disability Insurance (SSDI) and Supplement Security Income (SSI). Each serves a unique purpose and it is important to know the similarities and differences of both programs if you or a loved one is applying for federal assistance under these two programs.

Both programs require that the applicant be medically qualified (i.e. disabled). Unlike other disability programs (such as the VA and some state workers' compensation programs), the SSA requires total disability: you are either 100% disabled or you are not disabled at all. The requirements to determine whether someone is disabled is essentially the same under both programs. Both programs require for an adult (meaning someone over the age of 18, there are different rules for children under 18 that will be discussed below) to meet a five step process. They are:

1. Are you working at a job where you are making more than $1,070/week? If the answer is yes, then you are not disabled and do not qualify for SSDI or SSI. If no, then...

2. Is your condition severe enough that you are unable to perform your job? If it is not, then you do not qualify for SSDI or SSI. If yes, then...

3. Is your condition one that is under the "listings": a list of conditions listed in the Social Security Regulations that if you are proven to have will automatically be evidence that you are disabled. If yes, then you are medically qualified to be eligible to receive SSDI or SSI provided you meet the non-medical qualifications from each program. If not, then...

4.  A determination is made to determine whether your condition, if it is not a condition that is in the listings, is one that causes you to be unable to perform your old job. If that is the case, then you are medically qualified. If not, then...

5. A final determination is made to determine whether you can perform any type of work. By any type of work, the SSA means anything. If you can work as greeter at Wal-Mart, you meet their requirements. If not, and all of the other steps above are met, then you are medically qualified to be eligible for disability benefits.

Finally, it has to be medically determined that you had this condition for 12 months.

Where the two programs differ is in the non-medical requirements for eligibility.

SSDI is a benefit that comes out of Social Security taxes. Because of this, there are requirements that the Claimant (applicant for benefits) worked long enough to pay enough Social Security taxes to qualify for this benefit.  While it varies due to age, after age 31, you had to have worked at least five of the last ten years, so you have recently paid Social Security taxes. You also have to have worked long enough over your life to meet the SSA's requirements to have paid in the system long enough over your life. If you do not meet those requirements, then you will not qualify. It is important to note that there are no net worth requirements to qualify under SSDI. Even Bill Gates would be eligible to receive SSDI if he was eligible!

He would not, however, qualify for SSI. SSI is income and asset based, and was created to help people who are disabled, blind or over 65. For those of you who are familiar with Medicaid eligibility, the asset requirements are almost identical. Income requirements are determined by a formula that the SSA uses for each state. The important thing to remember is that there is no requirement to have worked at all in the past. The determining factor (besides being disabled) is how much you have and how much you make.

For children, the disability requirement for SSI (almost all children are not going to have the work requirements for SSDI) takes the ability to work out of the equation and instead looks at "physical or mental impairment that results [in] marked physical and severe functional limitations."

Now that you understand the similarities and differences between SSDI and SSI, in the next post I will lay out the procedure for appealing a claim for benefits if you are denied.

Thursday, October 2, 2014

Attorney Jason McGrath reappointed to the City of Charlotte Civil Service Board

Happy HeroesAttorney Jason McGrath of McGrath & Spielberger, who serves as the Chair of the City of Charlotte Civil Service Board, was recently reappointed to the Board for another three year term. The Board has certain quasi-judicial authority over Charlotte Mecklenburg Police Dept and Charlotte Fire Dept.

Mr. McGrath's legal practice focuses on business law matters (including contracts and business disputes) and mortgage dispute matters such as foreclosures, mortgage relief (like modifications), and other loss mitigation.

Our Firm also handles bankruptcy and tax cases, as well as estate planning, probate, elder law, prenuptial agreements, and so much more.

 

 


 

Tuesday, September 23, 2014

Are Negative Reviews Really Bad for Business?

Can an unfavorable review impact your business?


If properly handled, negative reviews can provide a business with an opportunity to actually boost its reputation.

With the surge of digital media and the growing use of social media, it has become extremely easy for both businesses and consumers to reach a captive worldwide audience at little to no time or expense.  Social media has helped drive many protests, actions in support, and boycotts in just a small amount of time.  This ease of access and use of social media could severely damage a business’ livelihood if the reviews or messages are negative and not addressed appropriately.

There are several considerations that should be made when deciding whether to respond to a negative review.  For instance,

  1. Does the review contain opinion, “facts,” or both?

  2. Whether to contact the person who wrote the negative review.

  3. Communicating with the company or website which hosts or published the troublesome response.

  4. Publicly responding to negative online reviews.

  5. Turn a negative into a positive, or at least an opportunity.


Another consideration offered by Yelp when deciding whether to respond is to determine if the review contains constructive criticism or is just undeniably negative.  The appropriate response for the business depends on this classification.  If the review is extremely negative and uses colorful language, it may be best to be left alone as nothing constructive could arise when emotions are involved.  When emotions are involved it will be difficult to change the person’s mind or sufficiently correct – in their subjective eyes – the problem.

It is aCustomer Service Feedbacklso important to look at reviews of other customers.  If there are more positive reviews than negative, the negative may not affect whether a future customer decides to purchase the business’ product or service.  For example, when I am deciding whether to make a purchase, I examine the online reviews.  I look to both negative and positive reviews but I only give sufficient credibility to those reviews that provide constructive feedback instead of generalizations because I want to know if the reviewers’ standards are similar to my own.  Further, some persons are suspicious of any business which has, for example, 20 reviews, all of which are positive, or all of which are “5 out of 5 stars” – that does not seem realistic to many of us.

Once the business determines that the review warrants a response, then a very effective way to neutralize the negativity is to publicly respond to the review.  A public response shows that the business is concerned that the customer was not completely satisfied with the purchase and would like to remedy the situation.  This will show other present and future consumers that the business cares about customer satisfaction and is willing to go to significant efforts to remedy any dissatisfaction.  It also shows that the business knows about the deficiency and the deficiency should be remedied going forward.

In the public response, the business should never get defensive or place blame because no one is perfect and it is impossible to satisfy everyone.  There is always going to be criticism, it is how the business handles the criticism that affects its reputation and possibly its bottom line as well.  Reaching out and offering solutions to customers is a way to not only boost customer satisfaction but it is a way to boost brand loyalty and neutralize any negative reviews.

Additionally, to facilitate helpful reviews, the business could provide discounts, rewards, or other benefits to the reviewers that provide the most comprehensive or helpful information which may benefit future purchasers in making buying decisions.  One way that a business that I have dealt with personally has succeeded in encouraging reviews is by providing the product along with a free sample of other products they supply.  Then, they sent a separate request and asked that I provide an online review and if I was dissatisfied to contact the business immediately so that any problems could be resolved expediently.

All in all, the best way to respond to a negative is with something positive.  There is an old saying which states that “you can attract more flies with honey than vinegar.”  That rings true not only when trying to convince someone to do the things you want them to do, but also to neutralize negative experiences.  The best form of advertising is personal experience and word of mouth (whether verbal or via the internet).  If you can turn someone’s negative personal experience into a positive by remedying the situation, you may have just turned a loss into a gain.

Friday, September 19, 2014

RCS Fails to Respond to NCCOB

Residential Credit Solutions Fails to Respond to North Carolina Commissioner of Banks


As an attorney who represents many homeowners facing foreclosure, part of my job entails helping clients obtain a loan modification while at the same time finding ways to prevent the lenders from successfully completing a foreclosure sale. Of course there are rules and federal guidelines that in theory are supposed to force a servicer to halt any foreclosure proceedings while a loss mitigation request is pending, but needless to say that doesn’t always work.

Recently, we were involved in a case with Residential Credit Solutions (RCS) as the servicer of a client’s mortgage loan. This post will summarize RCS’ inexcusable conduct towards the state and federal agencies, N.C. Commissioner of Banks (NCCOB) and Consumer Financial Protection Bureau (CFPB). For those of you that don’t know, the NCCOB is the state agency that charters, regulates, and licenses various financial institutions operating in North Carolina. Its mission is “to promote and maintain the strength and fairness of the North Carolina financial services marketplace through the supervision and regulation of financial service providers in that marketplace.”

It is not uncommon for us to have to file a comHouse Keys, Stack of Money and Foreclosure Notice - Cash for Keys Program.plaint with the NCCOB and CFPB when a loan servicer fails to act in compliance with the rules and guidelines. Most of the time, the servicers will respond to the complaints and try to correct the previous errors. However that was far from the case here.

We filed complaints regarding RCS’ actions, including but not limited to, RCS creating a fake sale date, violating the cease and desist by contacting our clients, and refusing to review our client’s request for loss mitigation due to incorrect information in its system (see an earlier post for the full story).

In response to the complaints, RCS sent a letter with false and misleading statements regarding our claims to the NCCOB and CFPB, but most importantly provided the non-existent foreclosure sale date as the basis for its actions. RCS’s response also alleged no loss mitigation request had been filed, which directly contradicted previous written and verbal communications from RCS itself acknowledging receipt of the request.

We disputed RCS’ erroneous response and the NCCOB sent a letter to RCS requiring a response to our dispute with an explanation of the non-existent foreclosure sale date. RCS ignored the NCCOB and did not respond to this second phase of investigation.

Next, the NCCOB sent a follow up letter to RCS acknowledging its failure to respond to the dispute in violation of the NC SAFE Act. When RCS finally did respond (a day after the required deadline), the response was filled with multiple errors referencing past inexistent foreclosure sale dates and failures to provide information that we had in fact provided to RCS multiple times.

To no surprise the pattern endures, we continue to point out RCS’ errors and misleading information while RCS repeatedly provides the wrong information. The most recent violation by RCS was telling the NCCOB that the foreclosure hearing had been canceled and was not rescheduled, but yet, we received a copy of a Notice rescheduling the foreclosure hearing.

Tuesday, September 16, 2014

Why Does it Matter Where I Die? Your State and Estate Taxes

Why Does it Matter Where I Die? Your State and Estate Taxes


I just read an interesting article in Forbes that came out last week titled "Where Not To Die In 2015". There, the author talks about the changing landscape of inheritance and estate taxes across all of the individual states. She quotes an estate planning attorney in New Jersey who has a client who is retired and who is also making $500,000 in income. The retiree is planning on moving his residence from New Jersey to his house in the Hamptons in New York. As the attorney says in the article, "When your bordering state is telling you, 'Come on over!' the pitch is compelling." New Jersey is one of two states (Maryland being the other) that charges an estate tax and a separate inheritance tax.  By contrast, New York recently raised its exclusion for its estate tax from $1,000,000 to $2,062,000 and will gradually raise that exemption limit to $5,250,000 by April 1, 2017. By January 1, 2019, it will be indexed with the federal exclusion amount. As you will see below, that still is not great compared to most states (particularly the ones in the Southeast part of U.S.) but it is step in the right direction for people who want to pass on their legacy to loved ones.



Currently, there are nineteen states and the District of Columbia that have a "death tax", which taxes the estate that someone leaves on a state level in addition to the federal estate tax. Some states, such as New York, charge an estate tax, by which a tax is levied based on the amount of the decedent's estate, and other states, such as Pennsylvania, which charges a tax based on who receives a decedent's property. As far as individual state taxes go, Pennsylvania's is particularly harsh because there is no exemption or exclusion amount for anyone who has to pay the tax (which is essentially everyone but the spouse or underage child of the deceased).





Estate Planning - TaxesFortunately, the trend nationwide is to repeal inheritance and estate taxes. My home state of North Carolina repealed its estate tax in 2013. So did Indiana and Ohio that same year. Kansas and Oklahoma repealed theirs in 2010.





What does this all mean for you? Well, for example, let's say you live in Harrisburg, Pennsylvania and you have an estate valued at $1,000,000. If you intend on leaving everything to your adult children, you would not owe any Federal estate taxes because the current Federal estate tax exemption in $5,340,000. However, the estate will be subject to a 4.5 percent or $45,000 state inheritance tax. If you are childless and want to leave everything to your sister, the state inheritance tax rate skyrockets to 12 percent and the tax due is $120,000. By contrast, the same person intending to leave that same amount in Charlotte, North Carolina, will not have any tax due, whether it is an inheritance tax or an estate tax (assuming that the property is in North Carolina).





The bottom line is that if you have a substantial estate, where you die could have a significant impact on what you plan on leaving to your families. So, for those of you in states such as New Jersey, Pennsylvania, or Maryland, those of us in North Carolina and Florida (and handful of other states) encourage you to come down here to retire!







Monday, September 15, 2014

Rehabilitating the NFL Brand by a Lawyer & Panthers' Fan

Rehabilitating the NFL Brand – by a Lawyer & Panthers’ Fan


americanfootballThe NFL has gotten a lot of negative publicity recently regarding its handling of several incidents of violence committed by several high profile players. Although the NFL claims to have handled these instances of violence within their Personal Conduct Policy there were several “after-the-fact” deactivations this week and an indefinite suspension designed to defend its reputation with the public. The NFL is a business and its business model relies heavily on the support of fans in order to be successful. The late decisions to deactivate and suspend players proves that the fan base is an important component of the NFL’s business. The NFL’s recent disciplinary actions sends an unclear message to the professional players and the public as to the consequences of a player’s off-field actions.


The NFL may or may not discipline the player prior to any adjudication of the action in court but once you insert wide-scale media coverage and great public disagreement with the actions of the player, the NFL will step in to discipline the player. Players should be disciplined consistently regardless of who may be watching.

In order to maintain the integrity of the NFL brand, definite policies outlining the consequences of a player’s off-field actions should be adopted. Our society was built on rules and enforcement of those rules through legislation and judicial enforcement. The benefit that the players would receive with a more clearly defined rule structure is awareness of the consequences of their actions on their careers. As attorneys who represent business owners and professionals, we are well aware that one of the most common complaints is a lack of clear communication between ownership, management, and other employees; this includes a failure to communicate expectations and the consequences of failing to meet them.The rule book

Consumer confidence is valuable to any company and a set of definite guidelines that are followed consistently will build consumer confidence in the NFL and show that the organization stands behind its promise to not tolerate violent conduct – at least off the field.

Playing professional sports is an opportunity that very few people have. Those who get that privilege would greatly benefit from knowing exactly what will happen if their conduct falls short of what is expected of them. They must also keep in mind that if they can’t follow the rules, there are plenty of talented individuals waiting to take their places.

Tuesday, September 9, 2014

RCS Creates Fake Foreclosure Sale Date in North Carolina

Creating a Fake Foreclosure Sale Date to Avoid Loss Mitigation?


As an attorney who represents many homeowners in mortgage relief, mortgage dispute, and foreclosure cases, I have seen some illogical and bizarre actions by many of the loan servicers. In fact, many of the loan servicers are large financial institutions that you and I both know by name. The most recent case involves Residential Credit Solutions (RCS) and a borrower in North Carolina attempting to obtain a mortgage modification.

To be fair, RCS did actually offer the client a modification offer; however, the modification offer increased the monthly mortgage payment. Generally, borrowers applying for a mortgage modification cannot afford their current payment and apply with the hopes of reducing their payments to something they can afford. Thus, the lackluster offer from RCS forced our client to go down another path, a deed-in-lieu of foreclosure.

DFake Stampespite receiving a complete loss mitigation application, RCS refused to consider our client’s request for loss mitigation due to a company policy that does not allow any file to be reviewed for a short sale or deed-in-lieu within 60 days of a foreclosure sale date. Not only did RCS create a rule that was in direct violation of federal guidelines, but it also created a fake sale date - there was no foreclosure sale date scheduled! We even sent RCS a certified copy of the court file as evidence that there was no foreclosure sale date, but RCS ignored that actual proof, instead stating that it could only go by “the note in our system.” Yet in contradiction to “going by notes in its system,” RCS took the liberty of notifying our client of the non-existent sale date, despite the cease and desist on file in its system.

At the second foreclosure hearing, the Clerk of Court ordered another continuance, partly due to the RCS actions / inactions above. That Order specifically stated that there was no foreclosure sale date scheduled, yet RCS still refused to consider loss mitigation, stating that there was a foreclosure date scheduled.

It gets even worse… After jumping through hoops and filing multiple complaints with federal and state agencies, RCS finally removed the incorrect sale date from its system. However, an agent at RCS informed us that it still could not review our client’s file for loss mitigation because there was a chance that there could be a foreclosure sale scheduled within the next 60 days since there was a foreclosure hearing in the next two weeks.

At the third foreclosure hearing after a detailed explanation of the situation, another Motion to Continue was granted by the Clerk of Court. The signed Order specifically stated that there was no foreclosure sale date scheduled. Finally, after five months of going back and forth with RCS, we received a letter informing us that our client’s file was being reviewed for a deed-in-lieu and requested specific documentation. Stay posted for more fun, games, and violations of law and rule by RCS.

Thursday, September 4, 2014

Eligibility for Veterans Pensions - The Basics

Eligibility for Veterans Pensions - The Basics


4th July or Veterans Day IllustrationThe Department of Veterans Administration provides supplemental income through the Veterans Pension and Survivors benefit programs. There are essentially three types of pensions: Basic, Housebound, and Aid and Attendance. The Veterans Pension provides for supplementary income for low-income wartime Veterans. The Housebound Pension provides for an increase to the Veterans Pension for wartime Veterans who are confined to their place of residence due to permanent disability. The Aid and Attendance Pension provides an additional increase for Veterans who are (mostly) in a nursing home due to their condition. There is also a survivor pension available for spouses and other eligible dependents as well. The benefits range from up to $1,054 per month for a single eligible Veteran for the Veterans Pension to up to $2,085 per month for a Veteran with a dependent (spouse or other dependent). The amount that a Veteran would receive would depend on the income of the Veteran. The benefits are tax free.

Veterans Pension: To be eligible for the Veterans Pension, a Veteran would have had to have completed at least 90 days of Active Duty service and at least one of those days had to have been during a wartime period (24 months if the Veteran entered Active Duty after September 7, 1980). Additionally, the Veteran must be either 65 or older, totally or permanently disabled, a patient in a nursing home receiving skilled nursing care, or receiving Social Security Disability Insurance or Supplemental Security Income.

Housebound Pension: Here, a Veteran would have to be eligible for the Veterans Pension above as well as be substantially confined to his or her home due to a permanent disability.

Aid and Attendance: Aid and Attendance provides the largest benefit, but it also has the strictest requirements. In addition to being able to qualify for the Veterans Pension, you have to either (1) require assistance with at least two of the six activities of daily living or ADLs (bathing, feeding, dressing, attending to the wants of nature, adjusting to prosthetic devices, or protecting oneself for the hazards of the daily environment), (2) you are bedridden due to your disability (not for rehabilitation or convalescence purposes), (3) you are a patient in a nursing home or skilled nursing facility, or (4) your eyesight is not greater than 5/200 visual acuity (uncorrected) or less in both eyes or a concentric contraction of no greater than five degrees.

Understanding the VA's pension programs is a challenge, but these are the basic descriptions of the pension programs available.

Friday, August 22, 2014

Medicaid Planning: The Basics - How Much Can I Keep and Still Qualify?

Medicaid Planning: The Basics - How Much Can I Keep and Still Qualify?


Home careAs an attorney who aids clients and their families with such issues, I study Medicaid's many and confusing rules and regulations. In order to qualify for Medicaid, you are generally only allowed to keep $2,000 of "countable" assets ($3,000 if a husband and wife are in a Medicaid facility). If you have more than $2,000 you can still qualify for Medicaid if you take account of various exemptions and strategies that are allowed.

"Countable" assets mean all items that you have that are not otherwise exempt. Exempt items in North Carolina include the following: personal property, one car, a prepaid burial contract (or $1,500 set aside for it), burial plots for you and your family, term life insurance, continuing personal care contracts, life estate interests in property (if you live in the property for more than one year), reverse mortgages, some annuities and promissory notes, discretionary interests in special needs trusts, and a your personal residence if your spouse or dependent child resides there or you state an intent to return home and you home equity is less than $525,000. Therefore, countable assets would include everything that is not exempt (i.e. cash, stocks, bonds, and anything else that has a cash value).

In addition to the $2,000 limit, your spouse is allowed to exempt more assets. A spouse in North Carolina is allowed to exempt one-half of otherwise countable assets for a minimum of $23,448 and a maximum of $117,240 (for amounts below $23,448, it is all exempt). So, for example, if you are married and you have $200,000 in a savings account, only $100,000 would be considered countable for Medicaid purposes and the rest would be exempt.

If you have taken into account everything above and you still have more than $2,000 in countable assets, there are still strategies that you can utilize that will still allow you to qualify for Medicaid. One of the services that I provide to clients is implementing these strategies to assist clients to reach their goals.

Tuesday, June 24, 2014

(Part 5) 5 Considerations as to Your Business’ Negative Internet Review

(Part 5) 5 Considerations as to Your Business’ Negative Internet Review


(Click for Part 1(Click for Part 2)  (Click for Part 3)  (Click for Part 4)


As attorneys with a law firm which has a significant online presence, and as lawyers who represent small and medium businesses, we are very much aware of the power of the online review and/or rating given by consumers. In fact, in this day and age, the positive or negative nature of a company's reputation as declared by the internet can make or break your business.

Poor RatingFor many businesses, it is almost impossible to avoid at least the occasional negative comment or even merely a lukewarm review. Many times, the information posted online is not accurate, or at least is presented out of context and/or incomplete. All businesses which encounter this face the same question: what can we do about this negative online review?   Hopefully, after you have had a bit of time to think about it, one of your next questions is: what should we do about this negative online review? We have developed a list of 5 key considerations and here is the fifth.

(5) Turn a negative into a positive, or at least into an opportunity. This can't work in all industries or all situations, of course, but what about turning the criticism into a promotional effort? For example, let's consider the complaint of "I had to wait more than 30 minutes for my car to be cleaned at Acme Car Wash." Perhaps the response from Acme is similar to this: "We regret you had to wait so long, but we were simply very busy that day with so many customers who know what a good job we do. Everyone should know that this month we have a 25% discount for our Premium Customer Club memberships, which allow you to make an appointment, among other benefits!"

This creative approach focuses on the positive, while still "apologizing" to the unhappy customer. It might even increase business. Find the silver lining.

(Click for Part 1(Click for Part 2)  (Click for Part 3)  (Click for Part 4)

Thursday, June 5, 2014

(Part 4) 5 Considerations as to Your Business’ Negative Internet Review

(Part 4) 5 Considerations as to Your Business’ Negative Internet Review


(Click for Part 1)   (Click for Part 2)   (Click for Part 3)


As attorneys with a law firm which has a significant online presence, and as lawyers who represent small and medium businesses, we are very much aware of the power of the online review and/or rating given by consumers. In fact, in this day and age, the positive or negative nature of a company's reputation as declared by the internet can make or break your business.

Poor Customer Service Evaluation FormFor many businesses, it is almost impossible to avoid at least the occasional negative comment or even merely a lukewarm review. Many times, the information posted online is not accurate, or at least is presented out of context and/or incomplete. All businesses which encounter this face the same question: what can we do about this negative online review?   Hopefully, after you have had a bit of time to think about it, one of your next questions is: what should we do about this negative online review? We have developed a list of 5 key considerations and here is the fourth.

(4)Publicly responding to the negative online review. Some business owners will post a response if the hosting website allows the same/has a mechanism in place. Again, you would want to be very careful in taking this approach, would want to take numerous deep breaths before writing the response, and would want to have at least one other rational person review your response before submitting. There is a definite split of opinions as to how to execute this approach, and of course each situation can be different. If you are going to respond:

  1. should the response be general or detailed?

  2. should the response be apologetic or more of a rebuttal or defense?

  3. should the response contain the name, or at least the position, of the person writing it on behalf of the business?

  4. should the response invite the complainer to call the business to further discuss?


In my personal experience, most of the responses I see written by business owners are fairly neutral and contain sort of a non-apology apology - you know, the kind that athletes' public relations representatives write for them, something like "I am sorry if anyone was offended by . . . ."

The bottom line is that if you are going to respond, be very careful. Some of the folks out there, referred to as "trolls" in today's internet world, will gleefully jump on any response, no matter how well-intentioned, just to up the ante and further stir the pot. Good luck.

(Click for Part 1)   (Click for Part 2)   (Click for Part 3)

Monday, May 19, 2014

(Part 3) 5 Considerations as to Your Business’ Negative Internet Review

(Part 3) 5 Considerations as to Your Business’ Negative Internet Review


(Click here for Part 1)     (Click here for Part 2)


As attorneys with a law firm which has a significant online presence, and as lawyers who represent small and medium businesses, we are very much aware of the power of the online review and/or rating given by consumers. In fact, in this day and age, the positive or negative nature of a company's reputation as declared by the internet can make or break your business.

Customer Service FeedbackFor many businesses, it is almost impossible to avoid at least the occasional negative comment or even merely a lukewarm review. Many times, the information posted online is not accurate, or at least is presented out of context and/or incomplete. All businesses which encounter this face the same question: what can we do about this negative online review?   Hopefully, after you have had a bit of time to think about it, one of your next questions is: what should we do about this negative online review? We have developed a list of 5 key considerations and here is the third.

(3) Communicating with the company or website which hosts or published the troublesome review. This can be productive and worthwhile and is unlikely to have negative consequences. In our experience most review sites do make an effort to act professionally, but understandably it is impossible to manage the hundreds, thousands or tens of thousands reviews that the website may ultimately contain. If you - or your representative/attorney try hard enough, you can likely get someone’s attention and perhaps even instigate an investigation of the review.

Some reviews violate the posting company’s terms of service. Others may end up being removed if the publishing website cannot verify the legitimacy of the review. Another common occurrence leading to a deletion is if the person writing the review cannot be identified or at least confirmed as having truly been a customer or client. Finally, sometimes the entity hosting the review's content or publishing it will remove it if an investigation leads to a conclusion that the review is incorrect or unfair.

Oh, and we should mention one other scenario, since, after all, we are lawyers . . . the threat of legal action may make such a review go away, independent of the factors above.

 (Click here for Part 1)     (Click here for Part 2)


 

Friday, May 2, 2014

(Part 2) 5 Considerations as to Your Business’ Negative Internet Review

(Part 2) 5 Considerations as to Your Business’ Negative Internet Review


(Click here for Part 1)


As attorneys with a law firm which has a significant online presence, and as lawyers who represent small and medium businesses, we are very much aware of the power of the online review and/or rating given by consumers. In fact, in this day and age, the positive or negative nature of a company's reputation as declared by the internet can make or break your business.

Customer ComplaintFor many businesses, it is almost impossible to avoid at least the occasional negative comment or even merely a lukewarm review. Many times, the information posted online is not accurate, or at least is presented out of context and/or incomplete. All businesses which encounter this face the same question: what can we do about this negative online review?   Hopefully, after you have had a bit of time to think about it, one of your next questions is: what should we do about this negative online review? We have developed a list of 5 key considerations and here is the second.

(2) Contacting the person who wrote the negative review. Be careful if you are contacting the person who made the negative review. While this can sometimes be effective, there are a number of reasons one should be hesitant to do this.

First, you have to consider whether you are going to be able to communicate politely and without expressed emotion, given the topic at issue and the likely hood that you feel wronged. Also, if the reviewer seems to have exaggerated or provided inaccurate information, how confident are you going to be that (s)he are going to respond to you in a reasonable fashion? Further, you always run the risk of the conversation not going well, or at least not going as planned. It's even possible that you may think the conversation went well, but the complaining party did not appreciate it. This could result in the former customer updating/expanding the initial negative review.

We're not suggesting that you should never reach out to a complaining customer or client. We're emphasizing that if you are going to make contact with someone who has issued an online complaint against your business, make sure it's done carefully and with some advance consideration. 

In some ways, as a trial lawyer, this makes me think of the debate within my profession about asking a judge to "Strike that from the record and instruct the jury to disregard it." This objection and request happens all the time in trial (especially on TV, it seems). Many of us think that a jury being told to disregard the offending testimony/evidence will actually have the opposite effect - that information has been singled out for greater attention, and may end up being further cemented in the jurors' minds. In other words, sometimes you are better of either ignoring such situations or handling them in a low-key manner as opposed to potentially aggravating the situation.

However you handle this - and hiring an attorney to deal with it is sometimes an option worth considering - be careful.

(Click here for Part 1)


 

Tuesday, April 15, 2014

Foreclosure Hearing CHASE Union County NC

The following is a summary of a foreclosure hearing that McGrath & Spielberger assisted a borrower with, and is provided for informational purposes only.



Mortgage Loan Servicer / Foreclosing Bank: CHASE as servicer for Wells Fargo Bank

Distressed Property Address (City): Waxhaw, North Carolina

Type of Distressed Property: Primary residence

Date of Foreclosure Hearing: March 5, 2014

Location of Foreclosure Hearing: Union County, NC

Bank’s Foreclosure Trustee: Shapiro & Ingle, LLP

Borrower’s Attorney: Jason A. McGrath

Actions Taken by McGrath & Spielberger on Behalf of Borrower (Specifically in Relation to the Foreclosure Hearing): Motion to Continue Foreclosure Hearing heard, Attorney McGrath attended hearing for client.

Foreclosure Hearing Outcome: Borrower’s Motion granted; foreclosure avoided.

Foreclosure Hearing Park Sterling Bank Gaston County NC

The following is a summary of a foreclosure hearing that McGrath & Spielberger assisted a borrower with, and is provided for informational purposes only.



Mortgage Loan Servicer / Foreclosing Bank: Park Sterling Bank

Distressed Property Address (City): Gastonia, North Carolina

Type of Distressed Property: Primary residence

Date of Foreclosure Hearing: February 18, 2014

Location of Foreclosure Hearing: Gaston County, NC

Bank’s Foreclosure Trustee: Authurs & Foltz, LLP

Borrower’s Attorney: Jason A. McGrath

Actions Taken by McGrath & Spielberger on Behalf of Borrower (Specifically in Relation to the Foreclosure Hearing): second Motion to Continue Foreclosure Hearing heard, Attorney McGrath attended hearing for client.

Foreclosure Hearing Outcome: This Second Motion to Continue was denied and a foreclosure sale was scheduled. The foreclosure was later canceled as a settlement was reached and foreclosure was avoided.

Thursday, March 6, 2014

5 Considerations as to Your Business’ Negative Internet Review




5 Considerations as to Your Business’ Negative Internet Review - Part I


As attorneys with a law firm which has a significant online presence, and as lawyers who represent small and medium businesses, we are very much aware of the power of the online review and/or rating given by consumers. In fact, in this day and age, the positive or negative nature of a company's reputation as declared by the internet can make or break your business.


Businessman pointing to the side over white backgroundFor many businesses, it is almost impossible to avoid at least the occasional negative comment or even merely a lukewarm review. Many times, the information posted online is not accurate, or at least is presented out of context and/or incomplete. All businesses which encounter this face the same question: what can we do about this negative online review?   Hopefully, after you have had a bit of time to think about it, one of your next questions is: what should we do about this negative online review? We have developed a list of 5 key considerations, and here is the first.


(1) Does the review contain opinion, “facts”, or both? As a general rule, it is more difficult to force the removal or editing of a review, once published, which contains merely an opinion. Stated from a legal perspective, a defamation claim is difficult, if not impossible, to bring regarding someone’s stated opinions, even if said opinions are perhaps unfair.


Thus, in some ways, a review such as “I spoke to the owner and could not believe how rude he was” is quite challenging to deal with. It is difficult to come up with an objective standard of what rude is and how to legally qualify “rude” behavior. In other words, this subjective interpretation of the owner’s alleged conduct is pretty much opinion and the accusation of rudeness is not a good basis for a defamation claim.


On the other hand, let’s take a second look at the above example to reconsider the fact vs. opinion issue: “I spoke to the owner and could not believe how rude he was.” Well, if we can’t effectively attack the “rudeness” aspect of this, what about something in that statement that can more easily be described as factual – something demonstrably true or false?


What if the individual to whom the consumer spoke was not the owner but merely a front line employee with no real managerial authority and the consumer knew that? That might be a whole different ball game. All of us, or at least most of us, can agree that a receptionist allegedly being rude to a customer would be less damaging in the eyes of other potential customers as compared to the owner of the business acting in such a manner. Of course, if you are talking about as going as far as a defamation suit, you would want very much to be able to prove that the consumer who posted the negative online review was aware that he/she had not spoken to the owner and had thus intentionally made a misstatement of fact.  


As you can see, this one example – a simple, single sentence review consisting of 13 words – can involve multiple legal issues and possibilities. Please stay tuned for updates on this topic, and please be careful how you handle these types of situations.


(Click Here for Part 2)