The passing of a family member is often a difficult and chaotic time. Addressing the matters associated with administering the assets they have left behind, commencing probate in the relevant court, preparing the necessary documentation related paying debts, contesting credit claims and all manner of other legal questions that may come up calls for the experience of the attorneys of Wator & Associates, P.C. Contact us for a free consultation to discuss any probate matters you may need assistance with. Call us at (773) 407-2100
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“910 Rule” Exceptions that Will Allow a “Cram Down” for a Vehicle
910-Day Rule Exceptions
The infamous hanging paragraph in §1325(a) of the Bankruptcy Code prohibits bifurcation of a creditor’s claim secured by a vehicle into a secured claim and an unsecured claim. Specifically: “section 506 shall not apply to a claim described in that paragraph if the creditor has a purchase money security interest securing the debt that is the subject of the claim, the debt was incurred within the 910-day period preceding the date of the filing of the petition, and the collateral for that debt consists of a motor vehicle (as defined in section 30102 of title 49) acquired for the personal use of the debtor…”
Barring an exception, the debtor is stuck paying the contract balance on the loan.
The 910- Day Rule Exceptions:
- The loan isn’t purchase money. This exception to the application of §506 was designed to protect car dealers, not necessarily everyone who makes a loan secured by a car. Look for loans that represent refinances of a car loan or the pledge of car to secured a personal loan.
- The vehicle is a business vehicle. Either the nature of the vehicle or the debtor’s business should tip you to a loan that may be outside the hanging paragraph. If it’s a delivery van, a pickup with racks, or an SUV sufficient to haul a trailer for the debtor’s business, you may have a transaction that doesn’t involve a “motor vehicle for the personal use of the debtor.”
- The vehicle is driven by someone other than the debtor. Consider whether the vehicle is driven by a non-debtor. The statute speaks in terms of the debtor’s personal use, so perhaps the vehicle for the teenager or college student, or even non-debtor spouse is outside the protection of the hanging paragraph.
Representing Debtors in Bankruptcy Looking for a Fresh Start
Bankruptcy law was designed to help people get a fresh start. Although frowned up, it actually stirs innovation as people can take more risk and innovate, knowing that if things don’t work out, Bankruptcy options are available. Bankruptcy laws were designed with the average hard working American in mind. Call 773-407-2100 for a free consultation with an attorney in our firm.
Our Firm Represents Buyers and Sellers in Real Estate Transactions
Some real estate transactions are commonplace matters, but many — especially in a city like Chicago— require complex legal analysis and skilled negotiation strategies backed by extensive knowledge and research.
At the law firm of Wator & Associates, P.C., our attorneys bring detailed analysis and extensive experience to bear on all aspects of real estate transactions. If you need a knowledgeable real estate attorney for you, or your client’s, transactional needs, call 773 407-2100 today.
Litigation Fundamentals – Worker’s Compensation and Retaliatory Dismissal of an Employee
Although an injured employee is still an at will employee under Illinois law, there are restrictions on the ability of an employer to fire an employee who has been injured in the workplace. One example which was deemed an illegal firing was when an employer discharged the employee because the employer believed that the employee’s claims for workers compensation benefits were exaggerated. An employee may not be discharged on the basis of a dispute about the extent or duration of a compensable injury. Clark v. Owens-Brockway Glass Container, Inc., 297 Ill.App. 3d 694 (1st District, 1998).
Our Firm Represents Individuals Injured at the Workplace
Worker’s compensation is a system of benefits provided by Illinois law to most workers who have been injured while at work. The amount of benefits a worker receives in compensation for injuries suffered while at work is subject to limits as set forth by the law. Almost every employee who is injured, and whose employment is localized in the state of Illinois, is covered by the Illinois workers compensation statute. Coverage begins from the moment the employee starts work.
Representing Injured Persons
Vehicle accident injuries coming home shapes and sizes. From the most catastrophic to the more every day soft tissue injuries such as a sore neck and achy muscles. The critical element in receiving compensation for your injuries you should make sure that you are fully aware cognizant of your rights and the best course of action to preserve the maximum legal remedies. If you have been injured in a car accident please contact our offices for a free consultation. Call our office for a free consultation (773) 407-2100
Fundamentals of Commercial Litigation
Fundamentals of the Service of Process
The initial step of any lawsuit is the filing of the complaint with the court of proper jurisdiction. In order for the matter to proceed for the court then has to have “jurisdiction” over the person/business entity that is the defendant in the case. To achieve this jurisdiction, the plaintiff has to serve the defendant with the complaint. The next paragraphs will be a short primer on the most popular methods of achieving “service of process” as we call it, to attain jurisdiction over the defendant. By no stretch of the imagination is this a complete and comprehensive review of all of the intricacies of service, but it will give you a clearer picture:
- As an initial matter please note that in Cook County the initial phase of service of process is with the Cook County Sheriff. In any case filed anywhere in the State of Illinois where a defendant lives in Cook County, the first initial step is to place the summons with the Cook County Sheriff’s Police Department;
- Personal Service – service of process directly on the individual that is the defendant in the case is called personal service;
- Substitute Service – this is service of process upon an individual 13 years or older who is resident at the premises where the defendant lives is substitute service. Substitute service is trickier, inasmuch as the party serving the paperwork must make sure that the person with whom the documents are left acknowledges that the defendant lives at the address, that the person taking the documents is a resident and that the person taking the documents is at least 13 years old. Once the paperwork is served a copy of these documents must be mailed to the address where the substitute service was completed to the defendant;
- Service by Publication – in certain limited circumstances, and with permission of the court, service may be completed by way of publication of notice of court proceedings in an appropriate newspaper which places such legal notices into its paper;
- Special Service – is another alternative form of service which is allowed with permission of the court after hearing on a motion. This form of service allows that summons be served by regular mail, certified mail and “posting” of the legal documents upon the door of the residence of the defendant. Posting means that that a special process server (once again appointed by the court) places the documentation on the door of the defendant with an appropriate affidavit of this action being filed with the court;
- Corporate Service – in Illinois every business entity (LLP, LP, corporation, LLC, etc.) requires a designated registered agent be appointed and registered when the business entity files its documentation with the Illinois Secretary of State. For corporations proper service on such an entity can be affected upon the registered agent. Another method is to serve a corporate director (president, vice-president, treasurer or secretary) of the business entity.
As we pointed out in paragraph 1, for Cook County it is the county Sheriff that handles the initial efforts at service. Once that is attempted, and fails, it is permissible to file an appropriate motion to use a “special process server.” A special process server is an uninterested party, an adult, who is appointed to attempt service. In Illinois, this usually means a licensed private detective, is appointed to attempt service.
Upon the completion of the service of process the litigation process commences and may proceed forward
Real Estate Fundamentals – Inspection Contingencies and the “As Is” Provision
We are often asked the question of how to approach the matter of inspections pursuant to a contract signed by the purchaser where the contract includes an “as is” clause. As an initial matter let us define what an “as is” provision in a real estate purchase contract means. An “as is” clause merely provides that the seller does not provide any guarantees on the physical condition of the property and it is on the purchaser to take all necessary due diligence steps to inspect for defects that may exist in the real estate. Certainly, this does not allow the seller to either hide defects or fail to disclose a known defect of the real estate. But the seller is not under any obligation to investigate and find such defects.
Most real estate contracts provide for an inspection provision, allowing the purchaser to retain the services of a professional inspector or a contractor to inspect the premises. Under most circumstances the results of this inspection are usually the basis for negotiations to have these defects repaired by the seller or for adjustments to the purchase price or credit from the seller to the buyer to be utilized to address the defect.
When the transactional contract incorporates an “as is” clause this often times leads to confusion on the part of the purchaser of whether or not to make an inspection. Our recommendation to our clients is to always secure the services of a professional licensed inspector to inspect the property. For although the “as is” provision precludes the ability to negotiate with the seller for either a reduction in the contract purchase price or for credits from the seller to the buyer to make repairs, the “as is” provision in combination with the inspection provision allows the buyer to cancel and terminate the contract if they discover defects that are unacceptable to buyer. Certainly, a better situation than having to purchase, or blindly purchase without an inspection, real estate that may be nothing but a huge money pit requiring repairs to make it livable.
The other real-world aspect to this is that in many instances, even though seller is not obligated to discuss amending the terms of the contract by way of a change to the purchase price or credit to the buyer for the defects that are discovered in the inspection, in reality many sellers do so anyway. For at the end of the day when it relates to real estate, the art of the deal really does really depend on the contract proceeding to escrow closing. If the seller is too rigid and refuses to negotiate, this may come back to bite them in so far as if the defects are of a particular nature or extent they will then be required to disclose said defects on the residential real property disclosure report for any future contract buyers that may come along and make an offer.
Probate Fundamentals – Heir v. Legatee
Some confusion arises in Illinois probate court regarding the difference between an heir and a legatee.
- An heir is the person who legally stands to inherit assets in the absence of direction from the decedent.
- A legatee is someone the decedent has directed shall receive assets. The usual form of direction noted here is a will or a trust.
So if a decedent had a will leaving money to a nephew, the nephew is a legatee. If the decedent had children, then the nephew is not an heir (since the children would take to the exclusion of more distant relatives). It is possible for a person to be both an heir and a legatee. For instance, a person may direct in their will that their child is to receive their estate. The child may stand to receive the estate in the absence of a will anyway, but the will turns the child into a legatee as well.