Duncan Law Blog

Can I File Bankruptcy If I have a Trust Fund?

Mar 24, 2015 1 Comment by

Girl on White BackgroundWhen it comes to bankruptcy, it’s important to know the limitations of a bankruptcy. One area we occasionally have people ask about is whether they can file bankruptcy or not if they have a trust. To answer this question, yes; generally speaking, someone with a trust fund is more than likely able to file a bankruptcy.

There are two different types of trusts. There is a revocable trust and an irrevocable trust. A revocable trust is when the grantor (the person who created the trust and put property into it) of the trust has full access and control over the trust and at any given time can access the property in the trust. This is true only until the passing of the grantor. The beneficiary of the trust (the person that will receive the trust) is not able to control the assets of the trust until the grantor of the trust is deceased. Even then, the beneficiary may not have full control over what happens to the trust. This is due to there being provisions and rules associated with the trust that may limit what the beneficiary can do with the trust and the assets in the trust.

An irrevocable trust means the trust cannot be changed, and the assets in the trust cannot be accessed, without permission from the beneficiaries. This is because the grantor of the trust has given up their rights of ownership of the assets in the trust. The beneficiaries may not be able to access a trust instantly, but because the grantor has removed their ownership rights, the beneficiaries of the trust have some legal rights to those assets.

The main concern with trust funds is whether or not the trust can be protected from creditors. There are many allowances that will let you protect a trust. One of the most common allowances in the legal field is a “spendthrift” clause. A spendthrift clause can limit creditor’s claims to trust assets, regardless of whether the trust is revocable or irrevocable.

If you are a beneficiary or a grantor of a trust fund, and you are considering filing for bankruptcy, it is very important that you make your attorney aware of the trust. You should also have your bankruptcy attorney or trust attorney look over the trust and contract to be sure that it can be protected from creditors.

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What is a Form 25T in North Carolina Workers’ Compensation?

Mar 17, 2015 No Comments by

Welcome to North CarolinaWhen you are involved in an accident that occurs on the job, there are a number of necessary workers’ compensation forms that need to be completed and then submitted to the appropriate office. One of these forms is called a Form 25T.

This form is needed to obtain reimbursement for mileage incurred from traveling to appointments related to the on-the-job injury. In order to be eligible for mileage reimbursement, the round trip to the doctor or therapist appointments must be more than 20 miles.

Annually, the IRS sets a standard mileage rate. The North Carolina Industrial Commission sets the amount of money paid for mileage reimbursement based off this rate. For example, in 2014 the rate was 56 cents per mile.

It is important to document all of your travel that is related to the injury. You should note where you are going, the date of the appointment, how long it took to travel to the appointment, how long it took to travel home from the appointment and the total number of miles you traveled. This information should then be conveyed to your workers’ compensation attorney so they can properly submit the information to the workers’ compensation insurance adjuster.

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Authorized User v. Co-Signer: The Differences Explained

Mar 10, 2015 No Comments by

Credit Card Lying on White BackgroundGreat question! This can be answered easily using a couple of scenarios. Let’s use the example of Tom and Jane. Tom goes to Old Navy and opens up a credit card. When he fills out the application, he uses only his name and credit history to apply. He later decides that for convenience, he’d like to allow Jane to use his card, so he calls up Old Navy (or the credit card company that operates the Old Navy card) and adds her as an authorized user. She now has legal rights to use the card, but no legal obligation to pay any of the debts back. Also, which can be seen as a bonus, the credit card will be reported on her credit report as an authorized user, as well as Tom’s; so if he pays the bill on time, she gets the perks of the good standing credit score without the legal obligation to pay back any of the debt.

Now let’s pretend that Tom and Jane both go to Old Navy and open a credit card. When the application is filled out, both names are put on it and both have their credit report ran as part of the application process. In this situation, Tom would be the primary holder, and Jane would be the co-signer of the card; although the credit card will report on both credit reports the same. Let’s say that things turn for the worst and Tom and Jane split up; at this point they are BOTH equally responsible for the debt on the Old Navy credit card. When you co-sign for a debt you immediately take equal responsibility for that debt obligation. It’s important to understand they aren’t each only responsible for one half of the debt, instead, they are each responsible for the entire amount.

As a general rule of thumb, if you can avoid doing so, don’t co-sign on the debt with another person. If a finance company is requiring a co-signer then they believe the original debtor will not pay for the debt if they don’t have someone else sign for it.

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How Do You Dispute A Debt On Your Credit Report?

Mar 03, 2015 No Comments by

Father and Daughter Surfing the WebErrors in credit reporting can be detrimental to an individual’s financial health and stability. New lines of credit can be denied or offered at inflated interest rates because of incorrect negative information provided by even one of the three credit reporting bureaus. Some experts estimate that one in every four credit reports contains inaccurate information that could stop individuals from obtaining new lines of credit.

The first step to correcting inaccurate or outdated information on your credit report is knowing what creditors are seeing when they pull your information. While you can pay each credit reporting bureau a fee to see your report at any time, federal law requires that each bureau allow you to see your credit report for free once every 12 months. A website has been created to allow individuals to pull all three reports for free. AnnualCreditReport.com is one of the few places you can pull your credit reports without fear of having to pay anything. It is the site recommended by the Federal Trade Commission.

When inaccurate information is found, it must be disputed with each individual credit bureau that is listing it. If, for example, there is incorrect information on all three reports, it must be disputed with all three bureaus separately. If only one credit reporting bureau is showing misinformation, then only that bureau needs to be contacted.

To dispute anything on your credit report, gather any supporting documents you have as evidence. Write a letter to the credit reporting bureau explaining clearly what the inaccuracy is and provide the correct information so that the error can be corrected. The Federal Trade Commission has created a sample dispute letter that can be used as a guide. Attach your supporting documents to the letter to ensure that your complaint is addressed and corrected. We typically encourage folks to send these letters certified mail, return receipt requested, so you have evidence that you properly gave notice of any inaccuracies.

Each of the credit bureaus has set up a page on their websites to allow individuals to file online disputes. Access them here:

File dispute with Equifax

File dispute with TransUnion

File dispute with Experian

Once your complaint has been submitted, the credit reporting bureaus will investigate the inaccuracy, and will usually send a response in the mail no later than 30 days from the day that the dispute was submitted.

If you still are unable to have the improperly listed debt removed then you should contact the Federal Trade Commission to let them know of the improper reporting and the credit bureaus failure to properly remove the inaccuracy.

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What Is A Form 42 in Workers’ Compensation?

Feb 24, 2015 No Comments by

Searching on LaptopA Form 42 is an application for Appointment of Guardian Ad Litem, a person the court appoints to represent the best interests of a child  or someone who is incompetent in a case. This form is used when a plaintiff in a case is an infant or an incompetent person that has no general or testamentary guardian (A person named in a will to serve as a guardian). In civil actions in North Carolina when any of the parties is an infant or incompetent person, he or she must appear by general or testamentary guardian, if he or she has any within this state, or by guardian ad litem. For example, if a minor child was involved in a case and his or her only guardian was in prison. The court may appoint a close friend that is taking care of the child to represent him or her in the case. Or if a person is injured while at work diminishing their mental capacity and they do not have someone to represent them, a guardian ad litem may be appropriate.

The guardian ad litem may take such steps as he or she deems appropriate to prosecute the action in behalf of the minor or mentally incapable, and may take settlement of the minor or mentally incapable’s claim, subject to the approval of the Commission. The guardian ad litem has no authority to receive or accept any funds. Only the Clerk of Superior Court or a general guardian appointed under the Clerk’s jurisdiction has the authority to receive funds and disburse them for an incompetent or infant.

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Should I Tell Creditors I’m Filing Bankruptcy?

Feb 17, 2015 No Comments by

TelephoneWhen it comes to filing a bankruptcy, one of the most frequently asked questions are “what should I tell my creditor’s after I have decided to file a bankruptcy?” One of the main issues that people with unsecured debt struggle with is the constant and harassing phone calls from creditors. In order to defer some of those phone calls from creditors, clients can inform their creditors of their decision to file a bankruptcy and give them an idea of which chapter (Chapter 7 or Chapter 13) they will be filing.

For a client that has already retained an attorney and provided the attorney with their paperwork, the client may give the creditor their attorney’s contact information. The client should inform the creditor that they have retained an attorney and let the creditor know that they should no longer contact them, but instead, should contact their attorney.

By a client informing a creditor of their bankruptcy filing, the creditor will usually stop all contact with the client and begin contacting the client’s attorney. However, creditors are technically allowed to contact a client regarding the debt owed until the client has been issued a case number after their bankruptcy is filed. A client will not receive their case number until their bankruptcy petition has been filed with the court.

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Why Is Confirmation So Important In A Chapter 13 Bankruptcy?

Feb 10, 2015 No Comments by

Family Standing in Front of White House

When you initially file a Chapter 13 bankruptcy your Trustee and creditors get a copy of a proposed plan.  This tells the creditors how they are classified in the plan and how much you are estimating that they will be paid for the duration of the bankruptcy.   Both the bankruptcy Trustee and the creditors have the option of reviewing the plan and either accepting or objecting to the plan terms.

Once you file your bankruptcy, your attorney is required to mail a copy of your proposed Chapter 13 plan to all of your creditors within 5 days from the date the case is filed.  This gives everyone who is listed in the plan a chance to review how they will receive payment and whether or not they agree with the plan.  If they do not agree with the plan, they have the right to file an Objection with the court stating their reasoning.  At the 341 Creditor?s hearing (roughly a month after the case is filed), the Trustee will review your plan and have your attorney make any necessary amendments, if he agrees to the plan at that point, he will recommend confirmation.

Confirmation sets your plan in stone and is essentially put in place for your protection.  Once your plan is confirmed, there is no changing it unless a Motion and Order is filed with the court.  This prevents an unsecured creditor from coming up years later stating that they do not agree with the proposed payment.

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What Is The Average Weekly Wage in Workers’ Compensation?

Feb 10, 2015 No Comments by

Family in Front of HouseIn the state of North Carolina, the average weekly wage is controlled by North Carolina General Statute 97-2(5). There are several methods used to determine the average weekly wages. The most common method to calculate the wages are to use your wages earned for the prior year divided by the number of weeks that you have worked. Wages earned will include overtime, tips, bonuses, per diem income and housing income.

If you lost more than seven consecutive days of wages during the prior 52-week period, then you will calculate the average weekly wage by taking the total amount of earnings made during the prior year divided by the number of weeks worked during the past year. A Form 22 is often used to help determine that information.

If the amount of time you have actually worked at the job you were injured on is for an extremely short period of time then you can look at the wages of fellow employees in a similar position. Should that calculation not seem fair then you and the employer can agree upon something similar to that in which you would earn if you were working without the injury.

However, there is a cap on the average weekly wage earnings that you can receive which is called the “max rate,” which was $920.00 in 2015. However, that number changes each year. To see the most current max rate you should look on the North Carolina Industrial Commission’s appropriate page. Unfortunately, this means that should your average weekly wage calculate to be higher than the max rate, you would still only receive the max rate of $920.00 per week.

Calculating the correct average weekly wage is critical in your workers’ compensation case because it helps determine your weekly benefits and will have a big part in any kind of workers’ compensation settlement you may have.

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Am I Personally Responsible for Business Credit Card Debt?

Feb 03, 2015 No Comments by

Male on White BackgroundYou are only personally liable for the debt if you sign as a personal guarantor. 

What is that you ask?  It is someone who ?guarantees? (hence the derivative ?guarantor?) to pay for someone else?s debt should they default on their obligation.  It is quite like a co-signer but normally applies to business debt.

As you know, businesses come and go as the days go by.  It is quite easy to open and close a business; and as many credit card and loan companies understand this, they will often have the owner of the company personally sign as a guarantor on the loan.  This protects the creditor should the business close; this way even if the business itself is not open, there is still a live body that obligated to pay them their monies owed.

The good news is that if you have signed as a personal guarantor on a business credit card or loan and the business has closed, should you file a bankruptcy, you can include that business debt as part of your personal debt to relieve your personal liability on the debt owed.  If the business is still open then the creditor has every legal right to go after the business for the debt owed, but not you personally.

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How do I get the Tax Value Changed on my House?

Jan 27, 2015 No Comments by

Family Walking Holding HandsWhen filing a bankruptcy, one question you will hear quite often is “what is the tax value of your property?” When looking at property in a bankruptcy, whether the property is a residence, house, land or condo, the Courts tend to use the “tax value” when determining the value of the property unless there is a more accurate value determined by another means. 

In some cases, one may feel that the tax value of their property is not accurate or up to date. Someone may feel that the tax value is listed as too high, or maybe even too low. If you feel that the tax value of your property is not in line with your expectations, listed below are a few steps that can help guide you to changing the tax value of your property:

1.    Contact the county tax department to which your property is located (Ex: Mecklenburg County, Guilford County Tax Department, Davidson County Tax Department, etc.).

2.    Request a re-evaluation form from the County tax assessor within the defined county. After filling out the re-evaluation form, submit the form to the county tax department where your property is assigned.

3.    Once you have submitted the evaluation form and it has been reviewed, a tax assessor will likely come out to your property and reassess your property.

4.    If the tax assessor agrees that the tax value of your property should be changed, the Tax Department assigned to your property, once re-assessed, will send out a new tax value to your property via mail, based on the criteria they use when reassessing the property.

The value of your home is important because it will determine the best way to exempt or protect your property within a bankruptcy.

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