HoganWillig

We Practice Law for Your Peace of Mind

Phony Internet MLS Offers

Author: Bruce Ikefugi


December 23rd, 2011

While this article is geared towards real estate agents, we feel it is helpful for others to be aware of. With the ever-increasing importance of the internet in our day-to-day lives, scams such as the one described below, and other email scams/solicitations, are becoming more and more common. The need to be cautious and confirm the legitimacy of any solicitation is more important than ever.

In this past year alone, HoganWillig has encountered half a dozen fraudulent internet schemes stemming from residential real estate transactions.

Six Year-End Tips to Reduce 2011 Taxes

Author: Hogan Willig


December 21st, 2011

As we approach the year’s end, it is not too late to do some 2011 tax planning. Please consider the following suggestions from the IRS that may be helpful. If you have questions about how these issues might apply to your tax situation, please contact Carly Speyer or Stacy Bechakas at 716.636.7600 to discuss.

The IRS wants to remind all taxpayers that with the New Year fast approaching, there is still time for you to take steps that can lower your 2011 taxes. However, you usually need to take action no later than Dec. 31 in order to claim certain tax benefits.

Here are six tax-saving tips for you to consider before the calendar turns to 2012:

Should I Stay or Should I Go



December 16th, 2011

Countless divorce clients approach me with the same concern: If I move out of the house, will it be considered abandonment? The answer is no! “Abandonment” is one of the most misunderstood concepts in divorce lingo. In New York State, you must have a reason to get a divorce, called a “ground” for divorce. Abandonment is one of seven grounds on which you can commence a divorce action. In order to file for a divorce on the ground of Abandonment, you must show that your spouse abandoned you for a period of one year or more. Moving out of the marital residence after a divorce action is commenced is not considered abandonment. Even if you did abandon your spouse for a year, it merely provides your spouse with a reason to commence a divorce action. It does not in and of itself affect the outcome of the divorce action.

However, before you decide to move out there are other considerations you should discuss with your attorney.

Medical care through “No-Fault” – quick claims cure diagnosis delays.

Author: Hogan Willig


December 12th, 2011

A question people often ask after a car crash is “I didn’t go to the emergency room after the crash, now I’m in pain days later. Am I still covered by no fault insurance?”

The short answer is yes, provided you have submitted a timely no-fault claim. No-fault insurance is extended, in general terms, to everyone who is injured during the use, operation, or maintenance of a motor vehicle. If you were so injured, you have thirty days to submit a no-fault claim regardless of whether you have insurance of your own. Wisdom suggests that any injury, bruise or break, should be listed on the claim because you don’t know which injury will require the most medical attention. No-fault insurance is responsible for physical injuries and money losses you sustained due to the use of a motor vehicle, and provided your injury is ‘reasonably ascertainable’ within one year of the crash, you will typically be covered. This amount of time permits you to have second opinions, get physical therapy, and surgical opinions, because there are times when an injury isn’t as easily diagnosed as seeing a broken bone on an x-ray.

When it comes to dealing with an insurance company, it is best to get the diagnosis sooner rather than later, because insurance companies look to the timing of your medical treatment and how soon after the crash you sought care. If there is a month or so delay between the crash and your treatment, the insurance company may investigate to see why you didn’t seek treatment sooner. The longer between medical care and the day of the crash, the more the insurance company will discount the doctor’s opinion that the crash caused the injury. It also makes medical sense to see your doctor to discuss the crash and what happened to you.

Regardless of whether you go to your primary physician, No-Fault medical care does not require that you have a referral to see a specialist, and often you get appointments sooner if you let the medical provider know you have a No-Fault case. I’ve been told by providers that a person injured in a car crash has a traumatic injury that may be more responsive to quick intervention than patients with long-term, or chronic, injuries.

So, the answer is “the sooner the better” when it comes to getting medical care in No-Fault cases, and especially when it comes to submitting your No-Fault claim.

Adoption and the Birthparent Consent and Revocation

Author: Amanda Kelly


December 12th, 2011

Are you a prospective adoptive parent considering or proceeding with a domestic or private placement adoption? If you are, chances are that you have already experienced a number of conflicting emotions. The adoption process can prove to be one of the most exciting, rewarding and fulfilling experiences of your life, while at the same time evoking some fear and angst. On the minds of many (if not all!) prospective adoptive parents is the dreaded “revocation of consent.” Of course, this is also a topic of interest to most birth parents considering the placement of their child for adoption. Before considering adoption as an option for you, either as a prospective adoptive parent or birth parent, it is important to know the laws regulating the placement and subsequent revocation of consent in an adoption setting.

This blog post is intended to provide you with an initial understanding of the law so that you can proceed with your adoption armed with knowledge and information and thereby alleviate any unnecessary anxiety that you may feel.

In New York State, the consent of both birthparents, or the sole surviving birthparent, is required when a child is conceived and/or born in wedlock. This applies even when the birthparent(s) is/are under the age of eighteen.

Of course, the consent of the birthmother is required when the child is born out of wedlock and again, this applies no matter what the age of the birthmother. Related to this issue is the topic of the biological father’s rights when the adoptive child is born out of wedlock. Oftentimes, for a number of reasons, the birthmother does not or cannot identify the birthfather. If the birthfather has maintained substantial and consistent contact with the child (i.e. the birthfather paid voluntary child support and either visited the child monthly, if able to do so, or maintained regular communications with the child or person/agency having custody of the child), their consent will be required when the child has been placed for adoption more than six months after his or her birth. Basically, there needs to be actual evidence of the birthfather’s intent to maintain a relationship with the child, not just his alleged intent.

As the law stands today, a birthfather can “block” an adoption where the child has been placed for adoption less than six months after his or her birth. This is possible as long as the birthfather is actually willing to assume custody of the child, is able to do so, and his involvement is not simply a means of blocking the adoption from proceeding. The birthfather must also take steps to toward parental responsibility within six months of the child’s placement. The Courts will determine and consider whether the birthfather is an appropriate or fit parent and whether he has effectually waived or abandoned his rights as the father.
If the adoptive child is over the age of fourteen, then the adoptive child must provide his or her consent to the adoption and no other person’s consent will be required. In some situations, the consent of any other person or agency having custody over the adoptive child may also be required.

There are a few situations in which a birthparent’s consent is not required. These situations involve the birthparent’s abandonment or surrender of the child or in situations involving an involuntary guardianship, mental illness or mental retardation.

CONSENTS

There are two kinds of consents that can be signed in a domestic private adoption. The first is known as a Judicial Consent. A Judicial Consent is signed in the presence of the Judge or Surrogate which has jurisdiction over the adoption proceeding. A Judicial Consent is preferred by most prospective adoptive parents as this consent is final (unless fraud, threat or coercion can be proven).

The second type of consent that may be signed is the Extra-Judicial Consent. An Extra-Judicial Consent is signed by the birthparent(s) at some point after the birth of the child. Although there is no law regulating how soon after the birth of the child such a consent may be signed, it is important to be certain that the birthmother is not on any medications or in any pain at the time of her signature. It is often suggested that the birthmother wait at least 24 hours before signing the Extra-Judicial Consent.

An Extra-Judicial Consent is revocable by the birth parents within 45 days after signing. In the event that a birthparent wishes to revoke this, he or she must do so in writing to the Court in which the adoption proceeding will be held. The adoptive parents will then need to decide if they will oppose the birthparents’ revocation. Should the adoptive parents contest the revocation of consent, a hearing will be held to determine the best interest of the child. It is important to note that neither the birthparents nor the adoptive parents will have superior rights over the other in this situation. It is also important to note that an Extra-Judicial Consent can be re-affirmed before the Judge and thereby become irrevocable.

It goes without saying that most prospective adoptive parents and birthparents “do their homework” before diving into their search for a child or placing their child for adoption. The laws regarding adoption are not always simple and straightforward and parents inevitably develop many questions and are always encouraged to seek the advice of an attorney.

Giving Back Through Not-For-Profit Corporate Scholarship Funds

Author: Hogan Willig


December 5th, 2011

Despite the challenging economic times we are experiencing, it is encouraging to receive inquiries regarding how to set up Not-For-Profit (NFP) corporate entities in New York for providing scholarships to students. In response to the interest we have received on this issue, what follows is a basic idea of what is involved in getting a corporate NFP underway for this worthwhile purpose.

The first step entails choosing a business name that is legally available and meets the legal naming requirements. The Certificate of Incorporation is then prepared and filed with the Department of New York State Division of Corporations ($75 filing fee applies). An Employer Identification Number (tax ID number for the corporation) must then be applied for with the IRS. Corporate bylaws are created which set forth the rules and procedures for running the NFP corporation. Additionally, an initial Board of Directors consisting of a minimum of three individuals over eighteen years of age (there are some exceptions to this age requirement) is selected or recruited. It is not necessary that the board members reside in New York State to serve on the board.

Subsequent to the formation of the NFP corporation, an organizational meeting would then be called to officially appoint the organization’s directors and corporate officers, adopt the corporate bylaws, establish the corporation’s budget for the fiscal year, and designate a bank for the corporation. Establishment of a Corporate Records Book containing meeting minutes and pertinent corporate documents is also necessary.

The NFP corporation must also register with the Office of the Attorney General of New York State, and with the New York State Tax Department for state business tax purposes.

Once these steps have been completed, application for federal tax exemptions is then made by filing an IRS Exemption Organization Determination Letter Request (IRS filing fees for this range from $400 to $850), and by filing an Application for Recognition of Exemption under IRS §501(c)(3), Form 1023. However, there is no requirement to file under §501(c)(3) to obtain federal tax exemption status if an organization has gross receipts in each taxable year of normally not more than $5,000. In such case, filing under §501(c)(3) may still be advisable to receive an IRS Determination Letter recognizing its tax exempt status for its records. Such filing must generally be made within 27 months after the date of incorporation.

Filing for a §501(c)(3) tax exempt status is somewhat involved. Among other things, the federal government requires submittal of the following information from organizations that are planning to award scholarships:

Criteria used for selecting recipients, e.g., academic performance or financial need, including the rules of eligibility;

  • How and by whom the recipients are or will be selected;
  • A copy of the scholarship application form and any literature describing the scholarship program;
  • How the award will be administered;
  • Description of how the scholarship will be paid;
  • Where the scholarship funding will come from.

Once a federal tax exemption is obtained, New York State requires filing of its Form ST-119.2 to achieve state and local tax exemptions for a NFP corporation. Subsequent to obtaining a tax exempt status from the federal and local governments, there will of course be on-going obligations for the newly formed NFP corporation, such as annual meetings and administrative activities, including the filing of annual tax returns.

Hopefully, this provides you with an idea of the steps involved in this process. Should you wish to discuss any of this information, please give us a call.

Helpful Tip If You’re Facing Foreclosure

Author: Bruce Ikefugi


November 18th, 2011

Our real estate department handles all types of real estate related matters, including foreclosures.  This might be an unpleasant task, however the local lenders we represent are very understanding and sympathetic to their borrowers’ plights.  I have had our banks agree to postpone actions and sales, and to work out payment plans, or allow a home to be sold for less than the loan amount very often.

HoganWillig

We Practice Law for Your Peace of Mind