Programfor

The 11th Annual

April 11, 2015

&Sponsored by the Tarrant County Bar FoundationIn cooperation with

Texas A&M School of LawTarrant County

Bar Association

I. Welcome – Jessica Sangsvang, 2015 People’s Law School Chair

II. Opening Remarks

Michael J. Henry2014-15 President, Tarrant County Bar Association

henry@henrytexlaw.comPhone: (817) 877-3303

Rick Sorenson2015 Chair, Tarrant County Bar Foundation

rgs@mcdonaldlaw.com817.336.8651

Translator: Norma Bazan

Norma.Bazan@dfps.state.tx.us

III. General Information – Jessica Sangsvang, 2015 People’s Law School Chair

Orientation11:30 a.m. - 12:00 p.m.

Schedule for April 11, 2015Session 1 12:00-12:50

Session 2, 1:00-1:50

Session 3, 2:00-2:50

Wills....................................................Kathy Roux.................................Room 208Government Resources....Jacquelyn A. Flynt.......................Room 201Real Estate Tax Issues...Andrea M. Moore and ....................Room 202Vicki GanskeImmigration (Spanish)............Andrea Aguilar...........................Room 204

Probate............................... Roger Sinclair Jones.........................Room 208Veteran Issues.........Julie Glover and Adam Luck................Room 201Pro Se Representation.....Bobbie Edmonds...........................Room 202Real Estate (Spanish)...........Atalia Garcia..................................Room 204

Elder Law/Abuse................Karen Telschow Johnson..........Room 208Small Business Issues.........Patrick H. Rose, IV and...............Room 201Jason PierceBankruptcy, foreclosures,...J. Michael McBride...................Room 202and debt consolidationConsumer Law (Spanish)...Elizabeth Rivera and................Room 204David Frisby

*Rooms 203, 207, and 216 are available to visit with speakers after thepresentations

*Refreshments are available in the Conference Center

conference ctr

Oreintation

201202

204

208

203

207

216

wom

en's

rest

r

men

's re

str

elev

ator

s

Kathy E. Roux

Biographies

LAW OFFICE OF KATHY E. ROUX1452 Hughes Road, Suite 200Grapevine, TX 76051817-874-8877-P, (877) 878-5884-FEmail: kathy@kathyrouxlaw.com, Website: kathyrouxlaw.com

Kathy E. Roux is an attorney in private practice in the areas ofConsumer Protection, Elder Law, Guardianship, IRS TaxControversies, Wills, Probate and Trusts. Ms. Roux has practiced lawsince 1994 and is licensed to practice law in Louisiana and Texas. Her office is located in Grapevine, Texas from where she serves theGreater DFW Metroplex, as well as Bexar, Collin, Dallas, Denton, ElPaso, Galveston, Harris, Hidalgo, Tarrant and Travis Counties, and thesurrounding counties of Ellis, Hood, Johnson, Kaufman, Parker,Rockwall, and Wise. She also represents clients throughout the Stateof Texas.She is currently a member of the Dallas, Denton & Tarrant CountyBar Associations where she has served on numerous boards andcommittees. Ms. Roux has been a continuous member of the Collegeof the State Bar of Texas since 2006.Ms. Roux has regularly volunteered at Legal Aid of Northwest Texasin Dallas and Fort Worth for the Bankruptcy and Wills Clinics.

Jacquelyn Flynt

Executive Director of Dispute Resolution Services (DRS)

Jacque has practiced at the Texas Department of Public Safety,Legal Aid of NorthWest Texas, Inc., and most recently in her privatepractice, The Flynt Law Firm, PC. She previously practiced in theareas of family law, domestic violence, housing, landlord/tenant,consumer, and public benefits law. She taught Poverty Law as anadjunct instructor at what is now Texas A&M University School of Law.She brings this Poverty Law background with her into her current

position as Executive Director at Dispute Resolution Services of NorthTexas, Inc, and her vision for DRS is that it will be a place where partiesand members of the community can reach full resolution of their conflicts. DRS provides mediation services in Family and Civil Law as well as thefollowing: Juvenile Services, Truancy Prevention, Probate, Victim-

Offender, Community Disputes, Mediation Training, CommunityDevelopment and Educational Programs. DRS does not charge amediation fee, and only charges for administrative fees, rather thanthousands of dollars in legal and court fees.She earned her law degree from Texas Wesleyan University in 2002.

Andrea M. Moore

Andrea M. Moore began her legal career as Law clerk for Franklin W.Denius, of Austin, Texas. She later became an Associate with FranklinW. Denius, was a counsel/officer for small family concerns in FortWorth, Texas. She later opened a private practice, also in Fort Worth,was a Partner with Acuff, Gamboa & Moore, L.L.P, then moved to HoodCounty and opened solo practice. She formed Moore & Shane, L.L.P in.2001 but closed full-time office in Jan. 2005 and now limits practice forselected clients, and probate and guardianship ad litem appointments.Ms. Moore is Board Certified by the Texas Board of LegalSpecialization in Estate Planning and Probate Law, has been admittedto practice in all Texas courts, Federal Court for Northern District ofTexas, U.S. Tax Court and is the author of Tarrant County BarAssociation Seminar, “Practical Tax Tips– Ad Valorem Tax Issues”.Andrea Moore received her Juris Doctorate from UT Austin and herMaster of Law from SMU.

Vicki GanskeSenior Assistant City Attorney

Vicki Ganske joined the City Attorney’s Office in January 2004. Herresponsibilities include legal matters related to grant funds from theUnited States Department of Housing & Urban Developmentadministered by the Housing & Economic Development Departmentpertaining to housing and public services. She advises the Fort WorthHousing Finance Corporation, Community Development Council and

advises other city departments on real estate matters including titleissues and liens. She has been admitted to the United States District Court, NorthernDistrict of Texas and is Board Certified in Residential Real Estate Law bythe Texas Board of Legal Specialization. She is the author of "ResidentialLoan Origination: State Disclosures & Regulations"

Ms. Ganske received her law degree from Texas Tech, and laterattended the Mortgage Bankers Association, School of MortgageBanking.

Andrea Aguilar

Andrea.aguilar@raicestexas.org

817-717-9377

Andrea Aguilar is Managing Attorney for RAICES (Refugee andImmigrant Center for Education and Legal Services) in Dallas-Fort Worth. RAICES is a non-profit organization that was founded and incorporatedin 1986 and has a dedicated team of attorneys, accreditedrepresentatives, and legal assistants, in addition to volunteers, studentinterns and partnering pro bono attorneys. Prior to joining RAICES, Andrea worked at the St. Mary’s School ofLaw Immigration and Human Rights Clinic where her work focused onhelping immigrant victims of crime facing deportation. then later workedas a teaching fellow and supervising attorney. When Andrea moved toFort Worth, she opened her own private practice, Sauters-Aguilar Lawwhere she continued representing immigrants in family-based andvictim-based petitions. Andrea obtained her law degree from St. Mary’s University School ofLaw.

Roger S. Jones

Attorney at Law Roger S. Jones, P.C. 101 Summit Avenue, Suite 406Fort Worth, Texas 76102-2609Office: (817) 332-7393

texas-wills-trusts.com

Mr. Jones is licensed to practice in both Texas and Mississippi. He isBoard Certified in Estate Planning and Probate by the Texas Board ofLegal Specialization, and is a member of the College of the State Bar ofTexas. Mr. Jones received his law degree from Baylor University School ofLaw.

Julie L. GloverGlover Luck, LLP

214-741-2005

Julie@gloverluck.com

After practicing law for several years, Julie became increasingly awareof . Julie founded Glover Luck with partner Adam Luck to address thechallenges faced by veterans in the legal process and the need forattorneys who could help. She represents veterans in all phases of thedisability benefit process, in tort claims against the VA, and in estate andprobate matters. She has been accredited by the VA to representveterans in front of the agency. She is also admitted to practice in UnitedStates District Courts for the Eastern District of Texas, Northern District ofTexas, Western District of Texas, Southern District of Texas, District ofColorado, and the District of New Mexico, United States Court of Appeals for the Fifth Circuit, United States,Court of Appeals for the Tenth Circuit, Court of Appeals for VeteransClaims, Supreme Court of the United States of America. Julie is amember of the National Organization of Veterans’ Advocates, YoungLawyers Division of the State Bar of New Mexico, Texas Young LawyersAssociation, Military and Veterans Law Section of the State Bar of Texas,Dallas Volunteer Attorney Program, and several other professional andvolunteer organizations. Julie received her law degree from TexasWesleyan University School of Law (now Texas A&M School of Law).She also obtained a Legum Magister (LLM) in Taxation from theUniversity of Alabama.Adam R. LuckGlover Luck, LLP

214-741-2005Adam@gloverluck.com

Prior to receiving his law degree, Adam worked for USAA providingfinancial services to both active military and veterans. Adam recognizedthat many service members and veterans had a myriad of legal needs thatwere not being satisfied. Adam decided to get his law degree and to serveour nation’s veterans.Adam is a founding partner of GloverLuck and represents Veterans inall phases of the disability process, pension claims, tort claims against theVA, military discharge upgrades, and estate and probate matters. He hasbeen accredited by the VA to represent Veterans in all claims broughtagainst the VA. He has also been admitted to practice in Court of Appealsfor Veterans Claims, United States Court of Appeals for the Fifth Circuit,United States District Court for the Northern District of Texas. Adam is amember of the National Organization of Veterans’ Advocates, and anumber of legal organizations serving and volunteering for the veterancommunity. Adam received his law degree from Texas Wesleyan University Schoolof Law (now Texas A&M School of Law).Honorable Bobbie EdmondsLaw Office of Bobbie Edmonds, Water Garden Building, 100 East 15thStreet, Suite 410, Fort Worth, Texas 76102, (817) 332-6501 - Ph (817) 332.6599 fax

website: www.goodverdict.com

e-mail: goodverdict@msn.com or be@goodverdict.com

Bobbie Edmonds is licensed to practice law in Louisiana and Texas.She is also admitted to practice before the United States Supreme Court,United States District Court of Northern District of Texas, United StatesCourt of Appeals for the Fifth Circuit and United States District Court ofSouthern District of Michigan. Bobbie has been an adjunct professor inAdministrative Law and Business Law at the universities of McNeeseState in Louisiana, and Texas Wesleyan in Fort Worth, Texas. Bobbieserves as the Alternate Judge for the City of Forest Hill. She began her legal career at the Reginald Heber Smith Fellowship inWashington, D.C. She has been a staff attorney with North LouisianaLegal Services Corporation and the Executive Director and GeneralCounsel for Southwest Louisiana Legal Services Corporation in Lake

Charles, Louisiana. She later opened her own law practice where sheconcentrates on family, school, civil, personal injury, and criminal andprobate laws. Attorney Edmonds has represented clients in a number of high-profilecases and represented a number of well-known personalities. Mrs. Edmonds has begun a number of inspiring youth projects such as“Rally for Education”, and “Santa Claus Goes to Jail” which she wrote andproduced. She also writes a legal column in The Black Voice- LaVida Newspaper,“Legal Peek”, has written a book, “The Legal Navigator” and engages inmotivational speaking at local, state, school and college events.Ms. Edmonds received her law degree from Southern University Schoolof Law in Baton Rouge.

Atalia A. Garcia

atalia@rglegalgroup.com

Atalia Garcia focuses on bankruptcy law, business litigation, real estatelaw, and immigration law.Ms Garcia 's law firm serves both her clients and the community . Herfirm is engaged in the general practice of law. Atalia values customerservice and appreciates and enjoys the problem solving aspects of herpractice.Atalia is also an Adjunct Professor at Baker College and AmericanBusiness and Technology University where he teaches Business Law andCriminal Justice. Ms. Garcia has been admitted to practice in the UnitedStates District Court for the Northern District of Texas, the United StatesTax Court, and the United States Supreme Court. She is also a licensedTexas Real Estate Salesperson. Atalia is a supporter of providing legal services to the underserved andhas volunteered at different pro-bono events in the community. She isactively involved in numerous organizations and professionalassociations. Atalia received her law degree from Texas Wesleyan University Schoolof Law and also received her Maters of Business Administration fromTexas Woman’s University.

Karen Telschow Johnson

Telschow Johnson Law

4200 S. Hulen St., Suite 670

Fort Worth, Texas 76109KAREN@TJLAWPLLC.COMwww.tjlawpllc.comPhone: 817-632-7711

Karen Telschow Johnson is an asset protection attorney, who focuseson estate planning and elder law. Licensed in Texas and New York,Karen is a graduate from Texas A & M University and Texas A & MUniversity School of Law. As a Principal and Attorney at TelschowJohnson Law, PLLC, Ms. Johnson is a member of the State Bar Collegeof Texas, an honor society of attorneys committed to advancededucation and training, the National Association of Elder Law Attorneys,Texas Association of Elder Law Attorneys, Tarrant County BarAssociation and the Tarrant County Probate Bar. Ms. Johnson is also veryactive in the community including being on the board of the NorthCentral Texas Chapter of the Alzheimer's Association, on the Beth-ElCongregation Board of Directors, a member of the Brite Divinity SchoolBoard of Visitors, and an Executive Member of the Board of Directors forThe Parenting Center.

Patrick H. Rose, IVAssociate, Whitaker Chalk

WhitakerChalk.comprose@whitakerchalk.com817-878-0542

Patrick Rose loves helping people, and he’s passionate aboutrepresenting entrepreneurial business owners. He works with clients in awide spectrum of industries, including oil & gas, healthcare, construction,food services and real estate. Patrick’s business practicecovers general corporate business counsel, small to large businesstransactions and business litigation. He works alongside his clients fromthe formation of their businesses, guides them through growth and

Jason Pierce

College of Texas, an honor society of attorneys committed to advancededucation and training, the National Association of Elder Law Attorneys,Texas Association of Elder Law Attorneys, Tarrant County Bar Associationand the Tarrant County Probate Bar. Ms. Johnson is also very active in thecommunity including being on the board of the North Central TexasChapter of the Alzheimer's Association, on the Beth-El CongregationBoard of Directors, a member of the Brite Divinity School Board of Visitors,and an Executive Member of the Board of Directors for The ParentingCenter.

Attorney , Whitaker Chalk

WhitakerChalk.comjpierce@whitakerchalk.com817-878-0568

Jason Pierce represents both public companies and privately heldentities in a wide variety of industries. He advises clients on all aspects oftheir businesses, from formation or acquisition, business planning forgrowth and appropriate transactions through sale or disposition. He hassignificant experience with in a wide variety of business, real estate,finance, securities and other transactions. Jason is a 2008 graduate of Texas Tech University School of Law,where he was a teaching assistant for the first- year Legal Practice courseand member of the Texas Tech Law Review. During law school, Jasonalso interned for the Honorable Jorge Solis of the U.S. District Court for theNorthern District of Texas, as well as the Office of the Federal PublicDefender-Northern District of Texas-Lubbock Division.

J. Michael McBride

J. Michael McBride, P.C.6300 Ridglea Place, Suite 101

Fort Worth, Texas 76116

(817) 877-1824 (Telephone)

jmm@mcbridelegal.com

www.mcbridelegal.com www.DFWmediation.com

Michael began his legal career as a clerk for the Hon. David O Belew,Jr., U.S. District Judge. He then began practicing primarily in bankruptcylaw in complex Chapter 11 reorganizations, committees, shareholders,officers, directors, and trustees. He worked for numerous firms in the D/FW area, and now has his ownpractice where he continues his focus on all aspects of Bankruptcy law. Michael is the author and co-author of numerous published works (e.g., "Purchase and Sale of Assets in Bankruptcy") and has doneconsiderable volunteer work for Texas Lawyers for Texas Veterans, Union Gospel Mission and other non-profit organizations such as CookChildren’s Medical Center and the Recovery Resource Council. Michael graduated from SMU Law School with his law degree.

Law Office of Elizabeth Rivera209 S. Jennings AvenueFort Worth, Texas 76104.

Elizabeth Rivera

Elizabeth Rivera opened her law firm subscribing to the belief that sheis here to serve the members of her community to the best of her abilityfor as long as she can, the best that she can. Ms. Rivera serves hercommunity through her firm by volunteering in community events, doinga large amount of pro bono work for her clients and keeping her fees as aqualified mediator affordable. Ms. Rivera is a strong supporter ofalternative dispute resolution and collaborative law procedures to makethe process of litigation less painful. Ms. Rivera owns a small law firm justSouth of Downtown Fort Worth. She has been serving the community inthe areas of Family Law, Criminal Defense, Consumer Law, CivilLitigation, Wills and Estate Planning, Immigration and Social SecurityDisability for a number of years. As a bilingual attorney, she shares hertime and expertise with both English and Spanish speaking clients with afull bilingual staff. Before she received her license, Ms. Rivera worked for a prominent FortWorth City Councilman. She received her law degree from TexasWesleyan University.

THINGS YOU SHOULD KNOW ABOUT ESTATE PLANNING, Presented by KATHY E. ROUX

DISCLAIMERTHIS PRESENTATION IS INTENDED FOR GENERAL INFORMATION

ONLY FOR LEGAL ADVICE, YOU SHOULD CONSULT AN AT-

TORNEY OF YOUR CHOOSING. NOTHING CONTAINED IN THISPRESENTATION ESTABLISHES AN ATTORNEY-CLIENT RELATION-

SHIP WITH YOU & THE LAW OFFICE OF KATHY E. ROUX.

Estate Planning• Will• Trusts• Statutory Power of Attorney• Medical Power of Attorney• Physician’s Directive or “Living Will”• Declarations of Guardian for You and Your Children• HIPAA Authorization• Disposition of Remains• Agent for Disposition of Remains• Mental Health Power of AttorneyWhat Is A “Will”?A will is a document which controls the passage of your property

upon your death.Two Types of Wills (1) the attested or formal will, which is in writing and is witnessed

(by two or more witnesses);

(2) the holographic will, which is wholly in the testator’s handwriting

and signed by the testator.Basic Requirements of a Will• Identify the testator (person making the will)• Written• Show “testamentary intent”• intent to create a revocable disposition of his property to take

effect upon his death

Class Notes

• Testator must have “testamentary capacity”

• age 18 or older or, if under 18, is or has been lawfully married or,was then a member of the armed forces of the U.S. or auxiliaries ormaritime services at the time the will is made• and, of sound mindRequired Formalities• In writing• Signed by testator in persono or by another person for the testatoro by his direction and in his presence• 2 or more credible witnesseso older than 14 yearso sign their names in their own handwritingo sign in presence of testatorSelf-Proving Affidavit• Signed and sworn to by testator before notary• Signed and sworn to by witnesses in presence of testator andbefore notary• Notarized• Allows will to be admitted to probate without the testimony of thesigning witnesses• Attached to willWhat Important Provisions Should Be In A Will?• Exordium Clause = identifies testator, establishes domicile,declares and publishes the will, and revokes all prior wills.• Example: “I, Kathy E. Roux, residing and being domiciled in TarrantCounty, Texas, make, declare and publish this, my Last Will andTestament, and hereby revoke all previous Wills and Codicils made byme.”• Introductory Paragraph Identifying Family and Property BeingDisposed• Identify stepchildren• Trustee

• Appointment of Independent Executor (person named by testatorto carry out the directions of the will)

• Naming of Several Successor Independent Executors• Typically, a decedent’s will waives the requirement of bond by anexecutor• Guardian for Minor Children• Person to rear testator’s minor children• Age 12 or older - ability to take part in the guardian selectionprocess• Residuary estate clause• Provides for disposition of any part of decedent’s estate that is notdisposed of by a specific bequestWhat Should Not Be In My Will?• A bequest to an attorney who prepares or supervises thepreparation of the will• A bequest to a parent, descendant of a parent, or employee of theattorney who prepares or supervises the preparation of the will.• A bequest to a spouse of any of the above listed persons.Do I Need A Will?• Most people benefit from a will. A will allows for easieradministration of your estate, and is generally less costly.• This is your opportunity to determine what happens to yourproperty when you die. In essence, you get the last word.• Your family situation may make having a will crucial to your lovedones. For example, if you are married with a minor child, having a willcan make all the difference for your survivors, even if you have fewassets.• These are just examples. Ask an attorney about your situation tosee how important it is for you to have a will.What Happens If I Die Without A Will?• Your property will be disposed of according to the laws of theState of Texas. This does not mean your property goes to the state.• Determination of Heirship proceeding• Clear and convincing evidence to the court that those seekinginheritance constitute all of the decedent’s heirs.• for your survivors, even if you have few assets.

• Appointment of Independent Executor (person named by testatorto carry out the directions of the will)• Naming of Several Successor Independent Executors• Typically, a decedent’s will waives the requirement of bond by anexecutor• Guardian for Minor Children• Person to rear testator’s minor children• Age 12 or older - ability to take part in the guardian selectionprocess• Residuary estate clause• Provides for disposition of any part of decedent’s estate that is notdisposed of by a specific bequestWhat Should Not Be In My Will?• A bequest to an attorney who prepares or supervises thepreparation of the will• A bequest to a parent, descendant of a parent, or employee of theattorney who prepares or supervises the preparation of the will.• A bequest to a spouse of any of the above listed persons.Do I Need A Will?• Most people benefit from a will. A will allows for easieradministration of your estate, and is generally less costly.• This is your opportunity to determine what happens to yourproperty when you die. In essence, you get the last word.• Your family situation may make having a will crucial to your lovedones. For example, if you are married with a minor child, having a willcan make all the difference for your survivors, even if you have fewassets.• These are just examples. Ask an attorney about your situation to seehow important it is for you to have a will.What Happens If I Die Without A Will?• Your property will be disposed of according to the laws of the Stateof Texas. This does not mean your property goes to the state.• Determination of Heirship proceeding• Clear and convincing evidence to the court that those seekinginheritance constitute all of the decedent’s heirs.• for your survivors, even if you have few assets.

I Already Have A Will• It Is Important to Keep It Updated. • Probate laws change and tax laws change periodically. Therefore,the will you have planned this year, may not result in achieving yourgoals in 5 or 10 years from now.• Your own situation changes over time. A plan for your estate to passproperty to your minor children may no longer be adequate if 10 yearshave passed and your children are now grown with children of theirown.• Often we end certain relationships and begin other relationships, asin the case of divorce, remarriage, adoption, or relocation. Prior willsmay not account for these life changes.• You may update your will by consulting with an attorney. Youroptions are to execute a subsequent will which revokes a prior will, orexecute a codicil to your current will making the appropriate changes.Common Pitfalls of “Do It Yourself Kits”

• Your “form” may not be a valid will under Texas law. If your will isdetermined invalid, then your estate will be distributed according to thelaws of the State of Texas.• These forms may not provide the type of planning that will benefityour estate, e.g., tax and trust planning.• These forms may leave out certain language or provisions that willallow for a more efficient probate of your estate.• For example, there may be no self-proving affidavit. If not, thentestimony of witnesses are required. Suppose witnesses are deceased?Then you must prove a valid will by witnesses to handwriting of one orboth of the subscribing witnesses or testator.TrustsTwo types:• Testamentary – created by your last will and testament• Inter Vivos – created by you during your lifetimeTestamentary TrustsMinor Children• Benefits minor or young children who would inherit if their parentsdied• Minors do not have the capacity to manage property they own

• Such property may be managed through a court-supervisedguardianship proceeding, or• By creating a testamentary trust to hold the property until the minorturns 18 (or older)• Parents appoint a trustee to handle property/funds until the child isolderSupplemental Needs Trust• When one spouse moves into a nursing home, the other spousetypically needs a new estate plan• The other spouse’s estate plan will generally eliminate outrightbequests to the one spouse and replace them with bequests to asupplemental needs trust.Inter Vivos TrustsSpecial Needs Trusts• Used to protect legally incapacitated adultso Property may be held in trust for the person’s lifetime• Can enable the beneficiary to enjoy the benefits of the trust estatewithout becoming ineligible for government aid programsRevocable Inter Vivos Trust (RIVT)

• You transfer title to all of your assets to the trust• Allows avoidance of probate because if no assets are in thesettlor’s name when he or she dies, no state court probate proceedingwill be needed in order to transfer title to heirs.• Also known as “living trusts”

• Can be used to transfer wealth out of a parent’s estate withoutgiving the beneficiary• immediate control over assets• Qualified Income Trust or “Miller Trust”• Irrevocable Life Insurance TrustsStatutory Durable Power of Attorney• You are authorizing the person named as your agent full legalpower and authority to act on your behalf, without any court approvalor supervision• Appoint a successor agent• Discuss and determine for what purpose you are granting a power

of attorney, i.e., what are your goals, and how does this document fitinto your estate plan.• Decide on the nature and extent of the powers you are granting tothe agent.• Durable or nondurable• Only for health care or only for property management, or both• Appoint a successor agent• Discuss and determine for what purpose you are granting a powerof attorney, i.e., what are your goals, and how does this document fitinto your estate plan.• Decide on the nature and extent of the powers you are granting tothe agent.• Durable or nondurable• Only for health care or only for property management, or both• General or special/limited power of attorney• A durable power of attorney continues to operate after theprincipal’s incapacity or disability, whereas a nondurable power ofattorney does not.• When do you want the power of attorney to take effect?• For example, do you want it to become effective upon itsexecution, or do you want it to become effective upon the occurrenceof a specific event, e.g., incapacity or disability.Directive to Physicians “Living Will”Designed to help you communicate your wishes about medicaltreatment at some time inthe future when you are unable to make your wishes know because ofillness or injury• Governs your rights if you are suffering from a terminal orirreversible condition• Through your directive, you are instructing the physician to eitherdiscontinue or withdraw, OR use life-sustaining treatment in the eventof a terminal or irreversible condition• You may revoke your directive at any time without regard to yourmental state or competencyRevocation may be by stating orally, writing, canceling, defacing,

obliterating, burning, tearing, or otherwise destroying the directive.Medical Power of Attorney• Gives the person you name as your agent the authority to make anyand all health care decisions for you in accordance with your wishes,including your religious and moral beliefs, when you are no longercapable of making them yourself.• You agent has the power to make a broad range of health caredecisions for you.• You, as the principal, always have the right to override the agent’spower.• Medical treatment may not be given to or withheld from you, theprincipal, if you object,tearing, or otherwise destroying the directive• Gives the person you name as your agent the authority to make anyand all health care decisions for you in accordance with your wishes,including your religious and moral beliefs, when you are no longercapable of making them yourself.• You agent has the power to make a broad range of health caredecisions for you.• You, as the principal, always have the right to override the agent’spower.• Medical treatment may not be given to or withheld from you, theprincipal, if you object, regardless of whether, at the time of theobjection, a medical power of attorney is in effect or the principal iscompetent.• Your agent’s authority begins when your doctor certifies that youlack the competence to make health care decisions.• In selecting a health care agent, it is a good idea to consider thefollowing factors:o do you know and trust your agent?o does your agent know you well enough to act for you?o does your agent possess sound judgment?o is your agent able to withstand the pressures of making difficulthealth care decisions?o will the agent take into account the effect any decisions will have onyour family?o agent must be 18 years or older, or disabilities of minority removed

• Prior to executing this medical power of attorney, it is a good ideato meet with your physician and agent to discuss the types of medicaldecisions that could arise, and the decisions that may need to be madeon your behalf.HIPPA Authorization• The Health Insurance Portability and Accountability Act of 1996(“HIPAA”) is a federal law that was enacted to limit the disclosure ofyour health information. This document permits your health careproviders to disclose and discuss your health information with thepersons you have listed.• You are also releasing your health care providers from any liabilitythat may arise as a result of their disclosing your health information.• This authorization does not replace your Medical Power ofAttorney. It allows your health care providers to discuss your healthcare information with whomever you have listed, in addition to thosepersons listed in your Medical Power of Attorney.Declaration of Guardian• This document allows you to appoint someone to care for yourperson and estate should you become substantially unable to properlyprovide for your own personal needs for physical health, food, clothing,or shelter, or to manage your own financial affairs.• The powers of the guardian are broader than the powers of youragent under a medical power of attorney.• You may designate a guardian for yourself• You may designate a guardian for your minor children• This document allows you to appoint someone to care for yourperson and estate should you become substantially unable to properlyprovide for your own personal needs for physical health, food, clothing,or shelter, or to manage your own financial affairs.• The powers of the guardian are broader than the powers of youragent under a medical power of attorney.• You may designate a guardian for yourself• You may designate a guardian for your minor children• Your designation of a guardian shall be subject to courtproceedings and approval under the Texas Probate Code.

• To qualify as a guardian one must take and file the oath required bythe Texas Probate Code give a bond and file the bond with the clerk, ifa bond is required get court approval of the bond.• In making this decision, it is a good idea to consider the followingfactors:o do you know and trust your agent?o does your agent know you well enough to act for you?o does your agent possess sound judgment?o is your agent able to withstand the pressures of making difficulthealth care decisions?• Things to consider in declaring a guardian for your minor childreno Whether they would want to servethe age gap between theguardian and the minorso whether the guardians live in an area with other children in theneighborhoodo whether the guardian has friends with children is it likely that theguardian will die before the children reach 18 years of age, causing thechildren to be uprooted again.Disposition of Remains• This document expresses your directive regarding your remains.• In stating your directive, you may want to consider the following:• type of disposition, e.g., cremation, burial, etc.• type of funeral service, e.g., public viewing, religious service, limitedto family and close friends, etc.• choice of provider of preparation and burial, or cremation• location of funeral service and burial• clothing, flowers, caskets, songs, readings, limousines, etc., andchoice of provider of these services• inscription on grave marker• Include specific directions such as:o type of disposition, e.g., cremation, burial, etc.o type of funeral service, e.g., public viewing, religious service, limitedto family and close friends, etc.o choice of provider of preparation and burial, or cremationo location of funeral service and burial

o clothing, flowers, caskets, songs, readings, limousines, etc., andchoice of provider of these serviceso inscription on grave marker• Include specific directions such aso “traditional funeral service, no viewing of my body, scatter my ashesover Lake Grapevine, etc.”Agent to Control Disposition of Remains• You are appointing an agent to make decisions regarding thedisposition of your remains• You may appoint successor agents• This document is effective upon your deathDeclaration for Mental Health TreatmentA document making a declaration of preferences or instructionsregarding mental health treatment.• Your preferences or instructions may include consent to or refusal ofmental health treatment such as:o Psychoactive Medicationso Convulsive Treatmento Emergency Treatmento Restrainto Seclusiono Medication• Expires on the third anniversary of the date of its execution or whenrevoked by the principal, whichever is earlier.• If the declaration is in effect and the principal is incapacitated on thethird anniversary of the date of its execution, the declaration remains ineffect until the principal is no longer incapacitated.Mental Health Power of Attorney• A declaration for mental health treatment is revoked when aprincipal who is not incapacitated:• notifies a licensed or certified health or residential care provider ofthe revocation;

• acts in a manner that demonstrates a specific intent to revoke thedeclaration; or• executes a later declaration for mental health treatment

Estate PlanningIt is important• to carefully read these documents• to make sure they express your wishes, and• to consult with an attorney• to make sure that they are consistent• and work together for your benefit.• acts in a manner that demonstrates a specific intent to revoke thedeclaration; or• executes a later declaration for mental health treatment

Jacquelyn Flynt will share information with attendees about variouscommunity and government resources available to assist members of thecommunity. Attendees will be provided with a printed copy of variousresources covered during the talk as well as some additional resourcesthat may be available, but not discussed. The speaker will allowsignificant time for questions from the audience.

Property Tax Issues

Government Resources

Property Tax Issues on Typical Exemptions and Filing Notice of Protest

Information website for Tarrant County is tad.org.

1. Exemptions: Most common are homestead, over-65, and disabled ordisabled veteran’s. Most exemptions really mean a reduction in value, andmay vary in amount as to the taxing jurisdiction and some taxing jurisdictions

are given some leeway on how much of an exemption is granted to aspecific category. Exemptions are not automatic and must be applied for.(See attached form). (All references are to the Texas Tax Code.) Oncegranted, need not be applied for yearly unless ownership or qualificationchanges, or chief appraiser requests new application.

a. Residence homestead (Sec. 11.13). Is it owned and occupied as a single person or family’s principal residence as of Jan. 1 of the tax year? Forexample, a property purchased after Jan. 1 (although some appraisal districtsare lenient) won’t qualify for its homestead exemption until Jan. 1 of followingyear. The Application is due before May 1, except late applications may beallowed. For example, the “exemption” is a $3,000 reduction on value forcounty taxes, $15,000 for school taxes. So a $100,000 house would bevalued at $97,000 for county taxes and $85,000 for school taxes. A propertymay be in a Trust and still qualify, but a revocable Trust must have the termsrequired by Sec. 11.17(j), such as that the beneficiary may not be required topay rent. b. Over 65 exemption. A person may qualify for the homestead exemptionand once 65, may also get this exemption, upon application. It grants anadditional $10,000 value reduction, and can save a lot of money, because itFREEZES the school taxes at the amount imposed in the year one of theowners turned 65. It can be transferred if the owner sells that home andacquires a different one, and upon the person’s death, upon application, theschool tax freeze will continue for a surviving spouse who is at least 55, so the“freeze” exemption can last decades and save thousands in school taxes. c. Disabled. Person with social security disability. Can be also granted, but ifover 65 as well, you cannot have both. Allows for additional $10,000reduction in value. However, as over 65 also freezes certain taxes, once 65 adisabled homestead owner will probably want that exemption instead.d. Disabled veteran. If a disabled veteran has a 100% disability, his or herhomestead is totally exempt from taxes for its full value. If not 100% disabled,the additional value reduction will be an amount set by the degree of theveteran’s disability under Sec. 11.22. A surviving spouse will continue toreceive it if he or she does not remarry, and a surviving spouse of a veterankilled in action may qualify for an exemption. If the residence was donated bya charitable organization to the veteran, the veteran will receive a partialexemption based on percentage of disability. As with a disability exemption, once 65 you can have over 65 exemption or disabled veteran’s exemption,but not both. 2. Tax Deferral for homestead. (See attached Tax deferral affidavit). TaxCode Sec. 33.06. f disabled or over 65, this allows for deferral of delinquent taxes, where no

additional penalties will apply once granted, but interest on unpaid taxes willaccrue at 8%. May continue as to surviving spouse, but will come due uponrespective deaths. Holds up foreclosure of tax lien for unpaid taxes if granted.3. Protest. Notice of Protest may be for denial of exemption, or based onobjection to value. Generally, Notices of Proposed Values are sent out by May1, but properties do not have to be revalued every year by appraiser. (Seeattached Protest Form). Protests are due by May 31, unless you received alate Notice of Proposed Valuation, and protests are then are due in 30 days.They must be hand-delivered or mailed in (no on-line or faxing) to TARRANTAPPRAISAL REVIEW BOARD, not the district. You will receive a notice ofhearing date and time, and a printed instruction sheet of what is required. Youdo not have to have an attorney, but just showing up and saying “My houseisn’t worth this” won’t be sufficient—you need comparisons, or an appraisal, orevidence of your house’s negatives, such as damage, etc. At the hearing, arepresentative of the Appraisal District will also provide its evidence of yourproperty’s value. Once the ARB makes its decision, you will be notified bycertified mail, and of your right to appeal to a district court, (which generallywould mean you need to retain counsel), or your option to pay a $500 feeand agree to binding arbitration.

TEXAS HOMESTEAD, COMMUNITY AND SEPARATE PROPERTYI. Texas is a community property state. All property acquired by eitherspouse during their marriage is presumed community unless provenotherwise. Whose name is on the title or the deed doesn’t legally matter. A. Separate property is property owned by spouse before marriage,acquired during marriage by gift, inheritance, or recovery for personal injuries(but not recovery for lost wages).B. Commingling separate property with community property can cause theseparate property to lose is separate character unless it can be clearly traced.

C. Earnings from separate property are considered community.D. Power of one spouse to own, convey or encumber property depends onthe classification of that property. E. Don’t forget that Texas allows common law marriage. If you have acommon law marriage, you must get a divorce to end it. F. Whether property is community or separate determines who inherits it,

how it is divided on divorce and whether or not one spouse is liable for theother spouse’s debts and torts. II. Texas homestead laws allow a person to establish a legal interest thatamounts to an estate in land in certain real property which is then exempt fromforced sale by general creditors. A. Texas homestead laws are the most protective in the U.S. The Texashomestead exemption goes back to Stephen F. Austin’s first colony in Texasin 1824, then was adopted by the Republic of Texas in 1839, and thencontinued with statehood in the Texas Constitution of 1845 and allsubsequent constitutions. B. Homestead laws are liberally construed to prevent citizens from losingtheir homes. This requires courts to enforce homestead laws even if the resultis to help a dishonest debtor in wrongfully defeating his or her creditors. C. “Gone to Texas” was a saying popular in the 1830s back East for peoplewho didn’t pay their bills. Texas is probably the most debtor friendly state inthe Union. III. Urban or Rural HomesteadA. Debtor can claim an urban or a rural homestead but not both. B. Urban –

One or more contiguous lots of not more than 10 acres in a city, town orvillage and used for the purpose of a home, or both as a home and a place ofbusiness or calling, together will all improvements. Same for family or a singleperson. C. Rural –

Family – 200 acres not in a city, town or village used for the purpose of a hometogether with improvements.Single person – 100 acres not in a city, town or village used for the purpose ofa home together with improvements. D. Urban versus RuralTexas Property Code defines urban homestead as

1. located within the limits of a municipality or its extraterritorial jurisdiction orplatted subdivision,2. served by police protection, paid or volunteer fire protection and,3. at least three of the following services provided by a municipality:a. electricb. natural gas

c. sewerd. storm sewere. water.4. To be considered urban, the property must be served by both police andfire protection and at least three of the other municipal services. 5. Whether a homestead is urban or rural is determined at the time ofhomestead designation.6. Urban homestead must be on contiguous lots. Rural may still be non-

contiguous parcels. 7. Debtors cannot combine urban and rural homestead. A debtor cannothave a rural homestead and an urban business homestead. IV. Family StatusA. Family is a term of art in Texas law. No definition is supplied in either theConstitution or by statute.1. A family consists of a. A group of people having the social status of a family living subject to onedomestic government;b. The head of the family must be legally or morally obligated so support atleast one other family member; andc. There must be a corresponding dependence by the other family memberfor this support. 2. One spouse cannot have one homestead and the other spouse have adifferent one.3. A family homestead cannot be maintained by a man and a woman livingtogether in an unmarried state. V. Property that may become homestead.A. Homestead must concern an estate in land but that does not meanunqualified fee ownership, i.e., the names must be on the deed or obtained byinheritance. 1. Any present possessory interest in real property along with occupancywill support a homestead claim.2. Can be the community or separate property of a spouse. In other words,a spouse can claim a homestead interest in the separate property of the otherspouse. 3. For a community property homestead, title does not have to be in bothspouses names.

4. Ownership alone doesn’t make property a homestead. There must beother actions involved. 5. Remember, the homestead exemption will only protect the estate that thedebtor owns in the property. It doesn’t create title, or economic right in theproperty. It only works as a shield against creditors. a. Tenancy in common – subject to right of partition by the other cotenants. b. Tenancy at will – subject to the rights of the owner with the greater title.c. Equitable estate – legal title is not necessary to a homestead claim. Thisincludes contract for deed where the legal title will not pass to the debtor untilthe purchase price is completely paid. IT IS STILL THEIR HOMESTEAD. d. Property held in trust for the debtor- sufficient to support a homesteadclaim. e. Life estate – sufficient to support a homestead claim. f. Leasehold – subject to the rights of the true owner or those claimingunder him or her. 6. Future interest without a possessory right may not be claimed as ahomestead. You see this a lot with remaindermen in life estates. 7. The debtor must have a present possessory right in the tract claimed ashomestead. You see this a lot in divorce property divisions where onespouse gets the homestead until youngest child turns 18. 8. Individual partners cannot claim a homestead in partnership property. Individual shareholders cannot claim a homestead in corporate property. Partnerships and corporations are separate legal entities. VI. Proceeds from sale of homestead property are exempt from seizure for 6months after the date of the sale of the homestead. This is to allow the debtorto obtain a new homestead. Insurance proceeds from a policy on thehomestead are exempt. VII. Claims enforceable against a homestead –

Purchase moneyHome improvement loansProperty taxes and federal income taxesHome equity liensReverse mortgagesLiens predating the homestead interestRefinance of a valid lien against the homesteadConversion or refinance of a lien secured by a manufactured home attachedto the homestead.

TEXAS CONSTITUTION FORBIDS ANY OTHER TYPE OF LIEN. ANY OTHERLIEN CLAIMS ARE CONSIDERED VOID. IF THE HOMESTEAD CHARACTEROF THE PROPERTY IS ESTABLISHED, THE CREDITOR HAS THE BURDENOF PROOF OF SHOWING THAT THE DEBT FALLS INTO A PERMITTEDCATEGORY.

A. Purchase money lien does not require joinder of both spouses. B. Sale of the homestead requires the joinder of both spouses even if theproperty is the separate property of one of the spouses. Refinance of theoriginal purchase money lien requires the consent of the non-owner spousebecause it is their homestead. C. Home equity loans require an 80% loan to value ratio. In other words, thedebtor must be left with some equity in the property. Texas was the last stateto permit “cash out” lending on homesteads and it is the most restrictive. VIII. Like hell, homestead claims are paved with good intentions. Theintention of the claimant is the prime factor in determining homestead. Intention must be combined with a proper use of the property. A. No specific writing is required to designate a homestead. DESIGNATINGA PROPERTY AS HOMESTEAD FOR AD VALOREM TAX PURPOSES IN NOTREQUIRED TO MAKE THE PROPERYT HOMESTEAD FOR NON-TAXPURPOSES. B. Termination of homestead must be proved. Homestead can be lostthrough abandonment. Physical absence is not abandonment – elderly innursing home, military stationed elsewhere and corporate gypsies have notabandoned their homesteads. Abandonment must be voluntary. Temporaryrental is not abandonment. Abandonment of a family homestead requiresjoinder of both spouses. IX. Medicaid can recover against a homestead (since 2003) but limited tothose situations where no surviving constituent family member (spouse,disable adult child) survives the decedent. The first $50,000 is exempt fromthe claim. Presented by Julie Glover and Adam Luck of GloverLuck, LLP

I. Entitlement to and Availability of Benefits from the VA

A. VA Compensation and Pension

- Who is eligible?

Legal Issues Affecting Veterans

How do I apply?

- What do I need to show to be awarded benefits?

- If I am denied, how do I appeal?

-Discussion of related benefits - Aid and Attendance, Homebound benefits,Dependency and Indemnity Compensation for surviving spouse, BurialBenefits

B. VA Health Care

- Who is eligible?

- The new AChoice Card@ program

- Claims for VA medical malpractice

- 1151 claims

- Claims under the Federal Tort Claim Act II. Family Law Issues Affecting Veterans

A. How court-ordered child support may affect your VA disability payment B. Dividing military retirement and disability pay in a divorce

III. Criminal Law Issues Affecting Veterans

A. Veterans Court Diversion Program - Tarrant County- Who is eligible?

- Program structure/benefits

B. Discharge Upgrades

- Potential Consequences of Discharges (eligibility for VA benefits, stigma)

- Upgrade process

- DRB upgrade process

- BCMR upgrade process

- Other avenues for relief (appeal to Federal Court, litigation in Court ofFederal Claims, Veterans Benefits Application)

IV. Resources Available to Assist Veterans

V. Q&A

I. Protecting the Right to Make Financial Decisions• Trusts• Statutory Durable Power of AttorneyII. Protecting the Right to make Medical Decisions• Medical Power of Attorney• Directive to Physicians (Living Will)• Curative versus Palliative Care - When to bring in hospice?

Elder Law/Abuse

III. Texas Guardianship• Guardianship of the Estate• Guardianship of the Person• Court Initiated Guardianship• Guardianship for Self DocumentIV. Protecting the Texas Homestead• Life Estate Deed (Lady Bird Deed)

• Medicaid Estate Recovery in Texas• Using Wills and Trusts for Asset Protection Planning• Being smart about reverse mortgagesV. Abuse of the Elderly• Financial Abuse• International Lottery• Remedies and Resources

Bankruptcy, Foreclosure & Debt Consolidation

Court System and Terms:The Old Testament of the Bible provided for a year of the Jubileeforgiveness of debts amongst all members of the Jewish community every49 or 50 years. (Leviticus 25:813)

The United StatesConstitution provides for a federal system of bankruptcy laws. (U.S.Constitution, Article I, Section 8) Robert Morris, one of President GeorgeWashington’s friends, who signed the Declaration of Independance and afinancier of the Revolutionary War filed bankruptcy after some bad realestate deals in 1798 and briefly went to debtor’s prison. This chapter of

Disclaimer: This handout/talk is intended as a general overview ofbankruptcy issues. It is a “broad brush” discussion of complex legal issues. Itis not to be construed as legal advice or a comprehensive review of theissues discussed. No attorney client relationship can be or is establishedwith this speaker or his law firm without a signed engagement letter. Thesematerials are designed as introductory in nature. Bankruptcy is complex, factspecific,and varies from casetocase.

J. Michael McBride

American history is why we no longer have debtor’s prisons as Congresspassed a law shortly after Morris’s imprisonment which did away with them.Thus, one could say that the subject of bankruptcy is in our country’s DNAand not a topic from which one should shy away. The Bankruptcy Code is found in Title 11 of the United States Code, afederal law which is national in its application. Bankruptcy Courts are FederalCourts. Unlike Texas State Court Judges, BankruptcyJudges are not elected, but appointed by the applicable Federal Circuit Courtof Appeals for a 14 year term. In Texas, the Fifth Circuit appoints Bankruptcy Judges. This is different thanFederal District Court Judges, who are appointed by the President, andconfirmed by the Senate for a life term. Becauseof these differences, there are some claims arising in Texas State Courtswhich cannot be heard by Bankruptcy Courts, according to the U.S. SupremeCourt.The phrase “trustee” in bankruptcy has several different meaningsdepending upon the type of matter involved. Different types of trustees existin a chapter 7 case, where an individual trustee is appointed for every caseand a chapter 13 case, where one trustee monitors all cases in the districtprior to confirmation of the payment plan, and administers the payments andthe case after plan confirmation and a chapter 11 reorganization case wherea trustee may be appointed to take the place of management if there ismalfeasance.

Types of BankruptcyWhatever the chapter, the goal of bankruptcy is to allow an individualdebtor a fresh start and corporations some breathing room in which toreorganize their affairs. Chapter 7 – LiquidationChapter 7 bankruptcy is a liquidation proceeding available to individualsand businesses. Upon filing, an estate is created. There is “property of theestate” and other property. There is exempt property and nonexemptproperty. There are asset cases and more commonly no asset cases. Theprimary purpose for an individual in filing a chapter 7 is to obtain a dischargeof pre existing debts (pre petition). Barring a fight over whether a debt shouldbe discharged, an individual debtor receives a discharge from debt usuallywithin four to six months of filing. Certain debts cannot be discharged, i

ncluding certain taxes, payments due an ex spouse, debts discharged,including certain taxes, payments due an ex spouse, debts arising from fraud,debts related to a DWI and student loans. Typical credit card debt is usuallydischargeable along with medical bills and other loans.Debtors (those who file for bankruptcy) may have the choice of assuming orrejecting unexpired leases and uncompleted contracts. To be eligible forChapter 7, one must pass the means test, instituted in 2005. If an individuallives in a household where too much money is earned (including non-filers),then that person may not file chapter 7.

Chapter 13 – Adjustment of Debts for Individuals with Regular IncomeChapter 13, often called wage earner bankruptcy, is used only by individualconsumers to reorganize their financial affairs under a repayment plan thatmust be completed within three or five years. To be eligible for Chapter 13relief, a consumer must have regular income and may not have more than acertain amount of debt. (So, there is a never never land created by the 2005amendments where an individual may make too much money for a chapter 7and have too much debt for a chapter 13. An individual chapter 11 may be anoption, but is often too expensive so that person cannot get any bankruptcyrelief.) Often the first question one asks as to whether a 13 is better for anindividual is: do you own a home or car with equity on which you are behindon your payments? If the answer is yes, then a 13 may be a better option forthe person than a 7, again assuming all the other factors are met.

First Meeting of Creditors (§341 Meeting):In chapters 13 and 7, there is a meeting called a first meeting of creditors. Adebtor must appear and answer questions under oath. This can be a goodway to get information from a debtor about their case, their assets or thereasons for filing. It is typically held approximately 3045 days after filing of thecase and for a simple case may be the most intense time for the debtor – theonly thing which requires coming downtown.

Pre and Post Petition Credit Counseling:The debtor is required to attend (online class may be acceptable) pre andpost petition credit counseling from an approved credit counselor. This classmust be completed or the debtor will not receive a discharge. The prepetitioncounselling certificate must be filed with the petition.

Automatic Stay (§ 362) and Foreclosure:An automatic stay (injunction) goes into effect at the time of the filing of thecase which stops lawsuits, foreclosures, garnishments, and all collectionactivity against the debtor the moment a bankruptcy petition is filed. Criminalactions will not be stayed. Creditors may file a motion to lift the automatic stay,which if granted, would allow a creditor to continue its collection efforts/suit. Itis not uncommon for a Bankruptcy Judge to condition the lifting of the stay,so the creditor may proceed, but only to a specified extent. Because the titleto a repossessed car is not typically transferred out of the debtor’s name untilit is re sold, which takes time, if you ever get involved with a car repossessionaround the time of a bankruptcy filing, the general rule is: the creditor mustgive back the car.If there is not a perfected security interest, then the loan is an unsecuredone with no collateral, no matter what the title of the loan papers claim.Perfection may be the filing of a Deed of Trust in the real Property Recordswhere the real estate collateral is located or may be a filing of a UCC1 in theSecretary of State’s office or may involve possession of a physical documentlike the title to a vehicle. Again, perfection must occur in order for the lender tohave a secured loan where the collateral may be foreclosed upon. Realproperty foreclosures are different than vehicle repossession and depend onthe timing of the events related to the foreclosure and the transfer of theproperty’s ownership versus the specific timing of the bankruptcy filing. Alender may have completed the foreclosure before the filing or not. Again, thefiling needs to be made before the foreclosure is started (best case) orcompleted (worst case, but perhaps still effective). A lender may after defaultin a loan send notices of default and acceleration of the debt, unless thesenotices have been properly waived and are of the sort which may be waivedat all. Afterwards, a lender may foreclose so that it (often by credit bids) endsup owning the collateral. Texas law provides for a process for the completionof a foreclosure, which involve many steps. Many of these steps may bewaived by the parties at the time when the loan is made. Thus, to analyse aforeclosure (to see if there is an action for wrongful foreclosure for example),one must start with a detailed review of the documents. In Texas, real estatemay be sold on the Courthouse steps on the first Tuesday of each month.Notice periods can vary if one is notifying the IRS of the sale for example orother types of parties with an interest in the property to be sold. Personalty

and other non real property items like stock may be sold by a foreclosingcreditor in a private sale but again only with proper notice inaccordance with the signed documents. A lender may bid in its debt topurchase the collateral or there may be a sale to a third party where theproceeds go to the lender to pay its debts. At the conclusion of the sale of thecollateral, there may be remaining debt owed. That is, the amountbid at the sale might not be enough to pay all of the bank’s debt. In that case aborrower or perhaps a guarantor may owe a deficiency to the bank. Again, thisliability depends on the documents signed at the time that the loan wasentered into. A lender which looks only to the collateral, usually in a real estatetransaction has what is called non-recourse debt. A lender who may look tothe borrower or guarantor for the payment of the debt along with looking tothe sale of the collateral holds recourse debt.

Federal vs. State Exemptions In individual debtor in Texas may choose either Federal or Stateexemptions. Generally speaking, the State exemptions are better for clientswith a high value of assets to protect or a homestead. But each case requiresits own analysis. A debtor may choose only one exemption scheme, federal orstate.

Discharge (§ 523)

The ultimate goal of any individual debtor will be to receive a discharge. Ifthe discharge is awarded individual debtor will have no continuing liability onthat debt unless otherwise provided. An exception to this will be if there hasbeen a reaffirmation of the debt (the debtor wants to keep his/her car and canmake the payments) or if the debt has been excepted from discharge. Thepoint of the discharge from a policy standpoint is to allow a debtor to make afresh start.

Practical Tips:

1. Do not pay the squeakiest wheel. Credit card collectors and others will pushvery hard to get their debts paid, but in the end, this may be a dischargeabledebt in a bankruptcy so one should carefully consider the situation beforeusing an exempt asset, like a homestead, to pay down dischargeable debts.

2. Get good advice early and follow it. There is no shame in getting aconsultation with an attorney who is well versed in the law before makingdecisions about which creditor to pay when there is not enough money topay all of your bills. Often these consultations are free. But in the end, if itmeans being able to keep your home and discharge credit card debt,stopping the collection suits and phone calls, then a fee may well be worth it.3. Remember that the financial analysis will look at the equity in the asset youare trying to keep,not just the fact that the title is in your name. Meaning thatwhile it may be that you own a home or car and wish to keep it, if it is grosslyunderwater (more debt against it than it is worth) and you have options aboutwhere to live or what to drive, then trying to keep it may be a mistake.4. When there is a financial crisis, triage your debts pay the most important notthe most vocal. Taxes, keeping a homestead debt current (where there isequity), keeping food on the table and necessary medicine in the cabinet maybe more important than keeping a dischargeable debt like a credit cardcurrent.5. You may be able to get a lesser car or lesser car payment check it out. Carpayments are often the highest monthly payments next to housing. They aresometimes the most easily shrunk. 6. Anytime you are looking at a financial crisis situation, make sure you are inthe best possible defensive posture. If you stop paying a credit card or a carloan at the lending institution, that bank may be able to freeze all of your bankaccounts without a court order. If you choose to bank where you have nodebt, then in order to garish an account, a lender must typically obtain ajudgment against you and then obtain a writ of garnishment on that particularbank account.7. Know what assets are exempt in Texas and which are available for creditorsto take once they have a judgment. Spending years paying off debt on abuilding which is not exempt while neglecting to pay debt on a homesteadwhich is exempt caused one individual to file bankruptcy only to find that thehome could not be saved and the nonexempt building wouldbe auctioned for payment to his creditors not the result he wanted when hefiled bankruptcy.8. Finally, financial stress is very real and can damage your marriage and yourhealth. Seek out good advice and rely on it and learn how to live a full life eventhough there are financial difficulties. Seek balance and get help whenneeded, even of the mental health variety, you and your marriage are worth it!

TarrantCountyBar.org