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Why do you need a will

Why Do I Need a Will in Ohio?

Unless you have the name of your family members on your assets as co-owners, you will need a will in order to ensure that your loved ones will receive your assets after you die. It is also important to consider preparing a will if there is a change in your situation, such as a change in your financial situation, an addition to your family, or if you acquire new assets or a business. In Ohio, if you die without a will, your property will be passed in accordance with the state inheritance laws, which give your property to your closest relatives, beginning with your spouse and children. If you do not have a spouse or children, your grandchildren or your parents, if they survive you, will get your property. If there are no grandchildren or parents, then it will go to other relatives, including siblings, aunts, uncles, cousins and your spouse’s relatives. If the court exhausts this list to find that you do not have any living relatives by blood or marriage, the state will take your property.

Living Wills and Health Care Power of Attorney (Durable Power of Attorney)

You should also consider preparing a health care power of attorney (or durable power of attorney for health care).  This is a legal document that authorizes another person (your agent) to obtain your health information and to make decisions regarding your health care. The health care power of attorney is only used in the event you are not able to make health care decisions for yourself. There are limitations on the decisions your agent can make for certain life-sustaining decisions.  The health care power of attorney is usually sufficient to avoid the need for a guardian. The health care power of attorney cannot be used to address financial affairs of another person. You must prepare a separate power of attorney to allow another person to take care of your financial matters.

The within statements are general in nature and this information is not intended as a substitute for legal advice regarding your specific case, nor is an attorney-client relationship established between Mina Nami Khorrami, LLC and any person reading this information. Mina Nami Khorrami is an experienced bankruptcy and debt attorney based in Columbus, Ohio.

Rights of homeowners in Foreclosure

Foreclosure Defenses

When a foreclosure proceeding is filed in Ohio, the homeowner has certain procedural and substantive rights.  If the mortgage company violates any of these rights, the homeowner will have defenses against the mortgage company for violation of his/her rights.

Procedural Defenses:

The procedural defenses are typically related to the mechanics of how a legal case flows, including the steps the mortgage company has to take to process a foreclosure case. Procedural law adheres to due process-the legal rights owed to a person in a civil action.

Under the terms of the mortgage documents,  the mortgage company may be required to notify you of the default under the mortgage note before it can call the mortgage note due – this is called the “acceleration” notice.  The mortgage document may also allow you a certain time after the notice of default to bring the loan current by paying the arrears – this is called the “curing” of default.   A careful review of the mortgage note and document is essential to determine what steps the mortgage company must take prior to foreclosure, and whether the mortgage company has complied. 

Once a foreclosure complaint is filed, you must receive a copy of the summons and complaint for foreclosure. The summons is a document produced by the court and provides instructions as to when and where to file a response and establishes deadlines for how the case will proceed in the court system. In Ohio, you have 28 days to file a response or answer to the foreclosure complaint to avoid a judgment by default. The complaint sets out the claim of the mortgage lender and contains elements relating to the mortgage, mortgage note, default, the amount owed, the interest on the mortgage note, default information, the last payment made and what the mortgage company wants from the court. Copies of the mortgage and the note must be attached to the complaint. The complaint must be served on all persons or entities that might have an interest in the real estate.  There may also be local court rules requiring additional documents to be filed with the Court, such as a title search.

Substantive Defenses:

The substantive defenses are typically related to the written or statutory law which governs the relationship of the mortgage company and the homeowner. It relates to the elements of the foreclosure action and whether or not the mortgage company has the right to proceed and whether the  homeowner has the right to raise certain defenses based on said law.

Failure of the mortgage company to provide you with the notices stated in the Procedural Defenses will provide you with a defense to the foreclosure complaint so that you can seek the dismissal of the foreclosure complaint.

If you have a HUD-insured FHA loan, the mortgage lender may be required to work with you on a resolution prior to filing the foreclosure complaint. The steps to explore alternatives to foreclosure are commonly known as loss mitigation and include loan modification, forbearance or partial forbearance, or deed-in-lieu of foreclosure. If the lender fails to comply with these requirements before filing the foreclosure complaint, the homeowner can raise this as a defense and seek the dismissal of the foreclosure complaint.

Once the foreclosure complaint is filed, you may raise defenses associated with insufficient paperwork, payment disputes, mistake, fraud, misrepresentation, unfair lending or debtor collection practices, violations of Ohio consumer laws, violations of your right of redemption or right to reinstate and other related defenses.

If your loan allows for reinstatement, you may seek assistance from Ohio’s program called “Restoring Stability.” http://www.savethedream.ohio.gov/.

The within statements are general in nature and this information is not intended as a substitute for legal advice regarding your specific case, nor is an attorney-client relationship established between Mina Nami Khorrami, LLC and any person reading this information. Mina Nami Khorrami is an experienced bankruptcy and debt attorney based in Columbus, Ohio.

Non-Compete and Non-Soliciation

Non-compete and non-solicitation agreements in Ohio  

Many employers, both large and small companies, are seeking to protect their business against competition by seeking employees to sign non-competition and non-solicitation agreements.

In general, Ohio courts have enforced reasonable non-compete agreements as long as: the restriction is no greater than is required to protect the employer, it does not impose an undue hardship on the employee, and it

Non-Compete Agreements

Non-compete agreements          

In today’s economy, employees are highly mobile and most employees do not want this mobility to be disturbed by courts under non-compete agreements. Most employers want to protect their business and investment against unfair competition. The Courts in Ohio have to balance between the competing interests of employers and employees.

Generally, a non-compete agreement is a contract between an employer and employee where the employee agrees no to compete with the employer after the employment ends. Ohio courts consider non-compete agreements to be valid and enforceable to protect employer’s economic interests as long as the non-compete agreement is reasonable.  In general a non-compete is reasonable as long as the restriction

  1.  is not greater than what is required to protect a legitimate interest of the employer;
  2. it does not impose an undue hardship on the employee; and,
  3. it is not injurious to the public.

In determining the reasonableness of a non-compete agreement, the courts look at many factors including the length of time and the scope of the restriction, the contact between the employee and customers of the business, whether the employee developed his skills during the employment, and whether an employee had access to confidential information or trade secrets of employer during his employment.

Non-compete can be executed at the beginning of an employment or during the employment as long as there is sufficient consideration for requiring that existing employees execute a non-compete. In some cases, continued employment might be sufficient consideration.

The courts in Ohio have the right to strike down a broad non-compete agreement,  so careful drafting of a non-compete agreement is recommended. There are many considerations to be given in drafting an  agreement. Careful consideration must be given to the language of a non-compete agreement.

The within statements are general in nature and this information is not intended as a substitute for legal advice regarding your specific case, nor is an attorney-client relationship established between Mina Nami Khorrami, LLC and any person reading this information. Mina Nami Khorrami is an experienced bankruptcy and debt attorney based in Columbus, Ohio.

Dissolving a corporation

Voluntary Dissolution of a corporation

When a business is incorporated, the corporation is registered with the Ohio Secretary of State and other agencies. To formally end the existence of a corporation in Ohio, certain formal steps must be followed in order to dissolve the corporation effectively. This article deals with the voluntary process of dissolving a corporation by its shareholders or, in the case of a limited liability corporation, by its members.

First, the corporate bylaws, articles of incorporation, or operating agreements (for a limited liability company) must be reviewed for any special procedures dealing with the dissolution of the corporation. Generally, the dissolution must be approved by at least a majority of shareholders or members, depending on the requirements of the bylaws, articles of incorporation or operating agreement. There has to be corporate resolution authorizing the dissolution. A formal meeting of shareholders or members must be held and all shareholders or members must have the opportunity to vote on the dissolution of the corporation.

Once the dissolution is authorized by the shareholders or members, then a certificate of dissolution must be filed with the Ohio Secretary of State. The information to be disclosed on the certificate of dissolution will vary depending on the corporate type, but generally the name of the corporation and the effective date of dissolution have to be disclosed and the certificate has to be signed by an authorized officer or representative of the corporation.

For a domestic for profit corporation to be dissolved, it must first obtain a Certificate of Tax Clearance from the Ohio Department of Taxation in order to voluntarily dissolve, and it must file a Certificate of Dissolution, Form 561, with the Secretary of State. To obtain the Certificate of Tax Clearance, the corporation must submit Form D5 – Notification of Dissolution or Surrender – to the Department after all applicable final returns are filed. The Department of Tax will then review all business tax accounts associated with the corporation to determine if there are any outstanding tax liabilities or filings. All outstanding tax liabilities or filings need to be filed and/or paid before a Certificate of Tax Clearance will be issued.

A Certificate of Tax Clearance is not required before dissolving a limited liability corporation. However, the Ohio Department of Tax requires the filing of various other forms by a limited liability corporation. Specifically, final sales tax returns must be filed if goods are sold and there is a vendor’s license issued to the business. Form D-5 – Notification of Dissolution or Surrender- must be filed after filing and payment of the final corporation franchise tax return if the limited liability company is classified as a corporation for tax purposes. For federal tax purposes, the taxpayer must check the “final return” box on the IRS From 1065 when the final federal tax return is filed. Filing of other forms might be required depending on the type of business.

The business affairs of the business must be wound up once the vote to dissolve the corporation or limited liability company is entered. Depending on the type of corporation, different rules apply, but in general the corporation or company must wind up the final affairs of the business, such as collecting the assets of the business, selling the assets of business or distributing assets that cannot be sold, and after the satisfaction of the business obligations, distributing any remaining assets of the business to the shareholders or members.

You should consult with an attorney if you want to dissolve your business, as a careful review of the business, type of corporation and applicable rules is necessary. Contact Mina Nami Khorrami for a free initial consultation.

The within statements are general in nature and this information is not intended as a substitute for legal advice regarding your specific case, nor is an attorney-client relationship established between Mina Nami Khorrami, LLC and any person reading this information. Mina Nami Khorrami is an experienced bankruptcy and debt attorney based in Columbus, Ohio.

Treatment of Tax Obligations in Bankrutpcy

Treatment of Tax Obligations in Bankruptcy

The treatment of tax obligations in bankruptcy is quite complex under the Bankruptcy Code and will require an in-depth analysis of tax claims, debtor’s returns and the timing of the filing of the return. A debtor’s ability to discharge any tax debt is based upon the classification of the tax debt. For purpose of bankruptcy, a tax claim can be either a trust fund tax (sales taxes or employee withholding taxes), a secured claim (filed and recorded tax liens), an administrative tax claim (tax claims arising after the filing of the bankruptcy petition), a priority tax claim (taxes are due within a certain time before the filing of the bankruptcy petition), a general unsecured claim, or a penalty claim.

The first inquiry is whether or not a tax return was filed by the debtor on time. A taxpayer must file his/her tax return on time before a determination of whether or not such tax claim is dischargeable in bankruptcy. If the tax payer fails to file the required tax return, the tax obligation in general will not be dischargeable. If the tax payer files the return late, then other factors must be considered for the determination of the dischargeability of the late file tax obligation.

Trust Fund Taxes

Trust Fund taxes are taxes which have been collected by the debtor from third parties. Sales taxes and income tax withholdings are examples of trust fund taxes and these funds are held in trust by the debtor for the taxing authority. If the debtor fails to collect trust fund taxes and/or fails to pay over these funds to the taxing authority, then such taxes are considered priority, will not be dischargeable in bankruptcy and must be paid in full.

Secured Tax Claims

Once the taxing authority files a tax lien in the county where the real estate of debtor is located or where the debtor resides, a secured tax claim may arise. The tax claim is secured to the extent that there is equity or value in the real estate or personal assets of the debtor. For example, if the filed tax lien is $30,000, the debtor’s real estate is worth $100,000, the first mortgage payoff is $80,000, the tax claim will be secured up to $20,000, and $10,000 of the tax claim is considered unsecured. The discharge in bankruptcy will not automatically eliminate the tax lien even if the tax obligation itself is unsecured and dischargeable. Secured tax liens must be paid to the extent there is value of the secured tax lien

Administrative Tax Claims

Administrative tax claims are generally taxes that have accrued after the bankruptcy petition is filed. There are a few exceptions under the bankruptcy code, but in general, administrative tax claims, together with interest and penalties, must be paid in full and are not subject to discharge.

Priority Tax Claims

Certain tax claims are considered priority and must be paid in full and not subject to discharges. There are several categories of priority tax claims. A careful examination of the tax return and the filing date is required to determine the priority status of a tax claim.

The within statements are general in nature and this information is not intended as a substitute for legal advice regarding your specific case, nor is an attorney-client relationship established between Mina Nami Khorrami, LLC and any person reading this information. Mina Nami Khorrami is an experienced bankruptcy and debt attorney based in Columbus, Ohio.

Qualification requirements for filing bankruptcy in Ohio

Qualification for filing bankruptcy in Ohio

There is nothing different about bankruptcy cases in Ohio than any other state in the nation. Each case must be analyzed based on the client’s income, expenses, assets and debts. People who consider filing bankruptcy have not been able to make payments on many of their bills for months before they file for bankruptcy. Most people want to avoid bankruptcy and struggle with the decision to file bankruptcy. The deciding factor happens when garnishment proceeding is pending and the client is unable to meet the daily living obligations.

The hardest part about bankruptcy is gathering the required financial documents and filling out the bankruptcy schedules and statements correctly. It is important to ensure that you list all of your assets, claim the proper exemption on your assets, list your creditors by type, accurately detailing your income and expenses, and figuring out the means test are only some of the complex issues that debtor face in their bankruptcy but your bankruptcy attorney will play a critical role in making sure the bankruptcy schedules and statements are accurately prepared and filed. Remember that bankruptcy law is complex and filled with many deadlines and loopholes which must be strictly followed.

Debtors do not need to justify their bankruptcy filings. As long as you are honest, and accurately complete the bankruptcy schedule and statement, making full disclosures of all assets, liabilities, and transfers, if any, and you cooperate with the trustee, then you will be entitled to obtain the discharge which is a huge relief for many financially strapped clients.

Creditors and other parties in interest have 60 days after you first meet with the trustee at a hearing called the 341 meeting of creditors, to object to your bankruptcy discharge. If there are no objections, you will receive a discharge of all of your debts, except for the debts that are non- dischargeable. See article on non-dischargeable debts.

Contact Columbus, Ohio lawyer, Mina Nami Khorrami,  for a free initial consultation to discuss your case in more detail.

Non-Exempt Assets in Bankrutpcy

When you file Ch. 7 bankruptcy, all of your assets becomes the property of your bankruptcy estate, subject to exemptions (see Garnishment – How Exemptions Help). Since Ch. 7 bankruptcy is also considered a liquidations, the trustee in your Ch. 7 case can sell non-exempt assets for the benefit of your creditors. 

Non-dischargeable Debts in Bankrutpcy

Non-dischargeable Debts in Bankruptcy in Ohio

There are some debts that are considered non-dischargeable in bankruptcy, regardless of whether Ch. 7 or Ch. 13 is filed. These debts are considered non-dischargeable by operation of law and will automatically survive bankruptcy. The list of non-dischargeable debts includes, but may not be limited, to the following debts:

  • Debts for spousal or child support or alimony
  • Debts owed to a former spouse or child if they arose out of a divorce or separation in Ch. 7 bankruptcy but these debts may be discharged in Ch. 13 bankruptcy
  • Attorney fees in child custody and support cases
  • Student loans
  • Certain debts to government agencies for fines and penalties
  • Certain taxes and tax liens
  • Debts for judgments in wrongful death or personal injury lawsuits resulting from motor vehicle accidents while you were intoxicated
  • Debts for certain condominium or cooperative housing fees (association dues)
  • Criminal restitutions, court fines and penalties, and
  • In asset Ch. 7 cases or Ch. 13 cases, debts that were not scheduled in the initial bankruptcy filings.

There are other types of debts that are not considered automatically excepted from discharge by operation of law. For these debts, creditors must file a non-dischargeability action in the bankruptcy court to receive a ruling that the debt is not dischargeable. These types of debts include:

  • Certain credit card purchases for luxury goods
  • Certain cash advances
  • Debts for fraud while you were acting in a fiduciary capacity, or embezzlement or larceny
  • Debts for willful and malicious injury; and,
  • Debts obtained through fraud, false pretenses or false representation

If you are considering bankruptcy as an option,contact Columbus, Ohio lawyer, Mina Nami Khorrami,  for a free initial consultation to discuss your case in more detail.

The within statements are general in nature and this information is not intended as a substitute for legal advice regarding your specific case, nor is an attorney-client relationship established between Mina Nami Khorrami, LLC and any person reading this information. Mina Nami Khorrami is an experienced bankruptcy and debt attorney based in Columbus, Ohio.

Inherited Individual Retirement Accounts in bankruptcy

Inherited Individual Retirement Accounts in Bankruptcy

                If you are considering filing for bankruptcy, you may wonder if you can keep your property after the bankruptcy is filed.  There are many factors to consider in answering this question. 

                One area where the law has recently been clarified concerns individual retirement accounts, or IRA’s.  Generally, an IRA that you establish for your own retirement is exempt in the bankruptcy and you are permitted to keep it (although there are some limited exceptions to this general rule).  Furthermore, if your spouse passes away and you inherit the IRA that your spouse established, this too is generally exempt in bankruptcy and you are permitted to keep it (although again there are some limited exceptions to this general rule). 

                But what about an IRA that you inherit from someone else?  In the recent United States Supreme Court case of Clark v. Rameker, the Court found that an IRA inherited from someone other than your spouse is not exempt under federal law because, among other reasons, unlike an IRA you establish for yourself, you are not permitted to make contributions to the inherited IRA; you must make specified withdrawals from the inherited IRA; and there is no penalty for withdrawals made from the inherited before the age of 59 1/2.  Thus, under federal law, an IRA inherited from someone other than your spouse is not exempt and you could lose it in your bankruptcy.

                However, if you live in Ohio, and you are entitled to claim Ohio exemptions, you may be able to protect the inherited IRA in your bankruptcy.  Unlike the federal law, a recently passed Ohio law protects inherited IRA’s from your creditors.

                Call our office today to schedule a consultation to discuss your situation, including any issues regarding an IRA, with Attorney Mina Nami Khorrami.

The within statements are general in nature and this information is not intended as a substitute for legal advice regarding your specific case, nor is an attorney-client relationship established between Mina Nami Khorrami, LLC and any person reading this information. Mina Nami Khorrami is an experienced bankruptcy and debt attorney based in Columbus, Ohio.