Limited Scope Legal Services

Unbundled Legal Services

How Expensive are Lawyers?

Expensive. Can you find a cheap lawyer? Yes, but it is not best. Can you hire one to do only a small amount of the work and save some money? Yes! How? Limited Scope Representation.

What Is Limited Scope Representation?

Limited scope representation (or unbundled legal service) allows a lawyer and client to agree that responsibility for certain parts of a case will be distributed between the lawyer and client.  For example, the lawyer may draft a divorce complaint or provide legal advice before the client attends a hearing, while the client is responsible for the remaining aspects of the case. Some prices just to show you what it would cost in a divorce action:

Service Cost

Other Fees

Divorce Complaint, Summons, and Coversheet – no kids $125.00 Service and filing fee
Divorce Complaint, Summons, Coversheet, and Confidential Information Sheet – with kids $150.00 Service and filing fee
Waiver of Service $50.00
Answer Complaint $100.00
Decree with no kids and no property $150.00
Decree with kids and no property $250.00
Decree with kids and property $350.00
Attend Uncontested Hearing $200.00 Mileage

How Does This Benefit You?

Clients seeking limited scope representation receive pricing that reflects exactly the scope of work they require.  Perhaps you need help filing a case, or would like legal advice before responding to a letter or signing a contract.  Maybe you just need an attorney to show up for a hearing?

In each instance, the work is well-defined and a specific price is paid for THAT step in the process.  While the price of  these steps will reflect the attorney’s effort, they are generally (often significantly) less expensive than the usual full-service attorney arrangement.  You, remain in control, you may only need help in one or more phases of your matter and you retain the option to expand representation at any time.  Perhaps you only need help at points 1, 3 and 6 in a 6-step process?  Wouldn’t you prefer to pay for only 3 steps?

Even better, your matter may not require court action at all.  More than a few issues have been resolved when a an unrepresented party receives a letter from an attorney’s office.  Paying a flat fee for a “mean lawyer letter” just might  avoid a painful, long-term process.

How Does This Benefit The Court?

Self-represented parties (“pro se” litigants) often proceed haphazardly through the legal process, assuming one party knows how to start the process.  One or both parties may be unclear how to proceed, unaware of the proper documents to file or how to react if the other side seeks legal advice.

We all know court dockets are full and judges are busy.  Providing well-drafted, correct documents and understanding how to proceed through a matter can significantly improve efficiency, reduce everyone’s frustration and be the difference in a successful and timely outcome.

What Changed?

The following Arkansas Rules of Civil Procedure were amended on December 14, 2017 by the Arkansas Supreme Court (opinion):

Rule 11 Signing of Pleadings, Motions, and Other Papers; Sanctions.

Part (c) now allows

  • attorneys “…to draft a pleading, motion, or other paper filed by an otherwise self-represented person” as long as a proper notation is included at the end of the document ““This document was prepared with the assistance of [insert name of attorney], a licensed Arkansas lawyer, pursuant to Arkansas Rule of Professional Conduct 1.2(c).” “

Rule 64. Addition and Withdrawal of Counsel.

(a) When additional counsel is employed to represent any party in a case, said counsel shall immediately cause the clerk to enter his or her name as an attorney of record in the case and shall also immediately notify the court and opposing counsel that he or she has been employed in the case.

(b) Except as provided in Rule 87 of these rules, a lawyer may not withdraw from any proceeding or from representation of any party to a proceeding without permission of the court in which the proceeding is pending. Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefor to the court showing counsel (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel; (2) has delivered or stands ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded any unearned fee or part of a fee paid in advance, or stands ready to tender such a refund upon being permitted to withdraw.

Rule 87. Limited Scope Representation.

(a) Permitted. In accordance with Rule 1.2(c) of the Arkansas Rules of Professional Conduct, an attorney may provide limited scope representation to a person involved in a court proceeding.

(b) Notice. An attorney’s role may be limited as set forth in a notice of limited scope representation filed and served prior to or simultaneously with the initiation of a proceeding or initiation of representation, as applicable. Such notice shall not be required in matters where an attorney’s representation consists solely of the drafting of pleadings, motions, or other papers for an otherwise self-represented person as provided in subdivision (c) of this rule.

(c) Drafting of Pleadings, Motions, and Other Papers.

(1) An attorney may draft or help to draft a pleading, motion, or other paper filed by an otherwise self-represented person. The attorney shall include a notation at the end of the prepared document stating: “This document was prepared with the assistance of [insert name of attorney], a licensed Arkansas lawyer, pursuant to Arkansas Rule of Professional Conduct 1.2(c).” The attorney need not sign that pleading, motion, or other paper.

(2) An attorney who provides drafting assistance to an otherwise self-represented person may rely on the self-represented person’s representation of facts, unless the attorney has reason to believe that such a representation is false or materially insufficient.

(d) Termination. The attorney’s role terminates without the necessity of leave of court upon the attorney’s filing a notice of completion of limited scope representation with a certification of service on the client.

(e) Service. Service on an attorney providing limited scope representation is required only for matters within the scope of the representation as set forth in the notice.

DWI Arrest | How to Continue to Drive Afterwards

Driving after an Arkansas DWI Arrest

 

After an arrest for DWI in Arkansas, you will have many decisions to make. One of the things many people do not think about is how they will continue to drive after a DWI arrest. Your driver’s license is taken from you, and you must now figure out how you are going to continue to drive so your day-to-day life can continue as normally as possible between your arrest and your trial.  

After a DWIarrest , your driver’s license will be taken by the arresting officer.  You will be issued a 30-day temporary driver’s license and will also be given a slip of paper telling you that you may contest the suspension by requesting an administrative hearing within 7 days of the actual arrest.

If you contest the suspension, a hearing will be held either in person or by phone with a hearings officer from the Arkansas Office of Driver’s Control. Depending on the facts of your case, hiring an Arkansas DWI Attorney may keep you from even having to attend the administrative hearing.  The standard for the hearing is preponderance of the evidence, which is a lower standard than that required at trial, which is beyond a reasonable doubt. For this reason, a person rarely wins if he or she contests the suspension.

Contesting the suspension is not your only option if you wish to keep driving after an DWI arrest.  You may also ask to be considered for a restricted driving permit. A restricted driving permit is possible if you meet all of the following qualifications:

1.) Your intoxication was due to the ingestion or use of controlled substance and you have not had a prior drug or alcohol related offense within the last 5 years

2.) You are charged with underage DUI, BAC .02-.07, and you have not had a prior drug or alcohol related offense within the last 5 years

3.) You did not refuse to submit to the test(s)

4.) You are not a multiple traffic law offender

5.) You do not present a threat to the general public.  

If you meet all the above conditions, the Arkansas Office of Driver Control may issue you a restricted driving permit.  However, restricted permits to drive commercial vehicles are not issued in Arkansas. If, at your hearing, you are found to have been driving while intoxicated, or you refused to submit to the BAC test, or you registered a BAC of .08 or higher, you will receive a license suspension and a permit or restricted license is now your option to drive.  If you do not qualify, or are not issued a restricted driving permit, you may request an Interlock-restricted Arkansas Drivers License.  

If you are granted an Interlock-Restricted Arkansas Driver’s License, you will be given an Interlock Order by the Office of Driver Control.  The Interlock Order will state the length of time which you must keep the Interlock device installed in your vehicle.  For a first offense it is a 6-month time period, a second offense is a 24-month time period, a third offense is a 30-month time period and a fourth offence carries a 4-year suspension.  

With your Interlock order, you will be given a list of service providers who will install and service your Interlock device.  You may choose any of the provider you wish.  Different providers use different Interlock manufacturers and different Interlock devices.  You must take your Interlock order to the installer of your choice and then provide proof of instillation to the Arkansas Drivers Control office.  

The Interlock order will also tell you if you are required to attend a victim impact panel and provide proof of attendance as well as any other qualifications which must be fulfilled before a non-restricted license is again granted to you.  

Your Interlock order will also inform you of where any drug or alcohol education or treatment programs are located and how to contact those services if you are required to participate in any treatment.  

The Interlock order will also give you all the necessary information of the MADD victim impact panel, such as how to set up attendance, what to bring, and how the program will run.  

As if that was not already enough information, you may even fit into yet another scenario. If you happen to work for a company that you do not own, and you happen to drive a company car for that company, you may be eligible for a non-interlock waiver to allow you to drive a company vehicle that does not have an interlock installed.

When navigating through all the issues that arise after an Arkansas DWI arrest, you will need an experienced attorney who is willing to fight for you and your rights.  At Wilson & Haubert, we provide experienced and aggressive DWI representation through all stages of DWI arrests.

Chapter 7 vs Chapter 13 Bankruptcy

What is the difference between an Arkansas Chapter 7 and a Chapter 13 Bankruptcy? The answer is it truly depends on what you mean with that question. For some people, the difference may not be that significant. For others, it will make a world of difference.

General Differences between Chapter 7 and Chapter 13.

First, in order to filed Chapter 7 you must past the “means test.” The means test is simply a formula that is used to determine if you qualify for a Chapter 7 Bankruptcy. If you can’t pass the means test, then you must file Chapter 13.

The means test is based on calculating your disposable income. If you fall below a certain level of income, then you don’t have to take the means test. That table is below:

(As of November 1, 2017)

1 Person Family $41,164
2 Person Family $50,594
3 Person Family $57,426
4 Person Family $69,807

If you have more than 4 people in your family, add $8,400 for every additional family member.

One helpful way to distinguish the two types of bankruptcy in your mind is to think “liquidation” versus “reorganization.” Chapter 7 is called liquidation. If you’re filing for a Chapter 7, you’re in a financial situation that is desperate and you’re not in a position to honor your obligations at all and, generally, you don’t get to keep your stuff. If you have non-exempt property, then the Trustee can sell your property. This doesn’t happen for most people that file Chapter 7, but it can happen.

Chapter 13 is called reorganization. It is for people who want to keep (at least) some of their assets and can continue to pay something on them. They just can’t pay the full amount. You get to keep exempt and non-exempt property, but you have to make payment for 3 to 5 years.

Here is a list of more specific differences and similarities between the two primary types of bankruptcy:

How long does a bankruptcy take?

Chapter 7 takes 3 to 5 months.
Chapter 13 takes 3 to 5 years.

What happens to my property in bankruptcy?

Chapter 7 – The trustee can sell nonexempt property to pay creditors.
Chapter 13 – You can keep all your property, but you must pay creditors according to your disposable income.

How much do I have to pay back in bankruptcy?

Chapter 7 – None. However, if you want to keep secured property (house or car), then you have to reaffirm the debt and will have to pay back the full amount owed on that property.
Chapter 13 – It depends. You will have to pay back the full amount on your house, and the market rate and market interest on your car. So, if you owe $25k at 12% on your car and it’s worth $15k and the market interest is 5.5%, if you file Chapter 13, then you will only owe $15k at 5.5%. You will also have to pay up to your disposable income back. After you pay your house and car, that may be $0.00.

What happens to my Child Support, Alimony, Student Loans?

Chapter 7 – Your debts will not be discharged. You cannot avoid support debts through Chapter 7 bankruptcy.
Chapter 13 – If you cannot pay these off by the end of Chapter 13 bankruptcy, you will still owe the remaining balance even after bankruptcy is over.

What happens to debt from a Divorce, Property Settlement or Agreement other than child support or alimony?

Chapter 7 – If a creditor (often the spouse) objects, then the debt will not be discharged unless you demonstrate that 1) you still will be unable to pay these debts after bankruptcy or 2) the benefit of wiping out this debt exceeds the detriment caused to the creditor.
Chapter 13 – Any remaining balance at the end of Chapter 13 bankruptcy will be erased.

What happens if someone cosigned with me during a bankruptcy?

Chapter 7 – Creditors can seek payment from your co-debtor.
Chapter 13 – Creditors cannot reach your co-debtor for the duration of your bankruptcy.

What happens if I am behind on my payments and I file for bankruptcy?

Chapter 7 – If the debt is secured, then the creditor will take it back.
Chapter 13 – You can add your arrearage (the amount you are behind) to your bankruptcy and get caught up during your bankruptcy.

Although federal law does provide guidelines that you have to meet, ultimately the decision on which type of bankruptcy to file is one for you and your lawyer to make. You need to hire someone who understands the different rules and can see how each type will affect your financial future. If you have additional questions on which type of bankruptcy is right for you, please contact us.

Limited Liability Companies

Arkansas Limited Liability Companies

Part 1

Have you ever been sued?  Have you ever feared you were going to be sued?  Have you thought about what you might do to protect your assets in the event of a lawsuit?  Being found liable is a dreaded event in most situations because it could bankrupt you. Smart business owners use limited liability companies to protect their business and their personal assets. 

Liability simply means you are responsible for some damage or injury and your assets will be at risk to pay someone back due to your actions or failure to act.  Limited Liability is the idea that the responsibility you otherwise might be forced to accept is limited by some legality – in this case, the type of entity you choose. In this way, a person can sue and get a judgment against your entity, but she cannot come after you personally. limited liability company

Obviously, the more you limit your liability, the better.  Limited Liability Companies exist for limiting the invasion of your personal assets due to some injury or harm associated with your business activity. They also exist to limit the invasion of your business assets due to some injury or harm done by you but not associated with your business.

Another way to understand this is viewing the liability as inside or outside liability.  For instance, suppose you are the owner of a widget factory (Widget Factory, LLC) and a lawsuit is incurred due to a defective widget, then your personal assets are typically not at risk in the lawsuit.  The lawsuit is against the company that made the widget.  The assets of Widget Factory, LLC are at risk in such a lawsuit.  These assets are known as inside assets.  This kind of lawsuit is known as an inside lawsuit.  The injured party was doing business with Widget Factory, LLC and using a product made by Widget Factory, LLC.  The harm or injury has some direct link to Widget Factory, LLC.  

If a judgment is granted to the injured party, they may collect against all the inside assets.  But what about your personal assets?  Are they at risk?  In most cases, they are not.  Your personal assets are considered outside the company.  There are instances where the outside assets are at risk.  I’ll discuss that in an upcoming blog.

So, if you as the owner of Widget Factory, LLC are wise, you will keep the assets owned by Widget Factory, LLC to a minimum.  The equipment used in manufacturing widgets will be owned by another Limited Liability Company (that you also own), which leases the manufacturing equipment to Widget Factory, LLC.  Widget Factory, LLC should only own a small bit of inventory and parts.  Widget factory, LLC bank accounts are kept low due to equipment lease payments and salaries of the employees at Widget Factory, LLC. Widget Factory, LLC might not actually be poor, but it needs to look poor by owning very little itself. 

If an inside lawsuit occurs, the liability is limited to inventory and parts possessed at the time of collection.  During the lawsuit, the inventory and parts can be used to fill orders.  The proceeds from the sale of the inventory during the lawsuit may be used to pay employees and lease payments during the lawsuit.  The amount of cash at any time should be kept to a minimum.  

If you are in a position where you might be held liable for something your business does, you are in a position to need an Arkansas-based business attorney. A little bit of planning and thought about business structure could literally determine whether your business survives.

Stay tuned for Part Two and further discussions about protecting your assets with a limited liability company.

Have other questions? Check out our FAQ about LLCs.

Appeal Procedure | How Do I File for an Appeal

appeal procedure

There are two basic stages in an Arkansas lawsuit: Trial and Appeal. A trial is where you present the facts of your case to a judge, who will decide who wins. An appeal, however, is where you ask another judge to reverse the first judge’s decision because of a specific error that the first judge made. So if you want to make an appeal, it will be good to be familiar with appeal procedure.

The most important thing to know about appeals is that you don’t want to have to make one. Appeal procedure is complicated, costly, and risky. An appellate court isn’t going to look at all the facts; instead, it just looks to see if the trial judge completely blew it. Even if the trial judge made a weird call or an unwise call, that’s normally not enough to win.

You’ve really got to show that the trial judge messed up. I say all that to make one simple point: Hire the best trial lawyer that you can afford. If possible, win your case at trial.

If you don’t win at trial, the first step is to consult with an appellate lawyer and determine what issues may be solved with certain post-judgment motions. These motions might include a motion for reconsideration, motion to vacate, or motion for a new trial. This is an important discussion to have even before the judge’s decision is written down in an order; in certain instances, you can ask the judge to be more specific. (This can be a good thing or a bad thing. Again, it’s important to have a wise appeals lawyer to make this decision.)

Note: In certain instances, you don’t have to wait until the end of trial to appeal a decision. In these situations, you can ask the trial court to certify your question as one that is immediately appealable. There are certain requirements for this to be met, which can be found in Rule 54 of the Arkansas Rules of Civil Procedure.

Okay, enough wind-up. Once the decision comes down and you’re ready to appeal, you have to file a notice of appeal with the trial court within 30 days. This notice of appeal needs have some very specific things, which a good appeals lawyers will know how to handle. Before you can file the notice of appeal, however, you’ve got to order the transcript(s) from the judge’s court reporter. These can be pretty darn expensive, which is why you can’t just dabble with the idea of an appeal. Arkansas law requires you to make a significant financial commitment before even getting in the door. And you may or may not have actually had enough time to research all the issues by the time you’ve got to order the transcript. You’ve got to have the transcript ordered and the notice of appeal filed within 30 days after the judge’s decision is “entered” or filed with the clerk.

Around this time, you’ve also got to get a certified edition of all the things that were filed in the case. In some counties, you do this through the clerk. In some counties, you do this through the court reporter. There’s not necessarily a rule on it.

Once you’re able to compile all that information, the circuit clerk will certify that the record is correct. From that point it is the appellant’s (the person bringing the appeal) job to make sure that this record is given to the clerk at the Arkansas Supreme Court. This is what it means for the record to be “lodged.” The appellant must lodge the record within 90 days of filing the notice of appeal. (In certain circumstances, the trial judge may allow the appellant more time to lodge the record.) The record is just everything that happened at trial. 

Once the record is lodged, the case is officially within the appeals court’s jurisdiction. The trial court can no longer do anything with the case. (That’s not always exactly true but it’s mostly true. I’m just trying to get through this blog.)

When the record is lodged, the appellant has 30 days to file a brief. The brief can be a huge task, and it includes all the arguments for why the trial judge should be reversed, an organized copy of all the important documents called an “addendum,” and the infamous “abstract.” This word strikes fear and discomfort into the hearts of all lawyers. An abstract is simply a first-person retelling of what went on in the transcript,  whereas the transcript contains a complete record of everything that was said in the courtroom. For example, these things would likely be excluded in an abstract: someone asking for a glass of water, the question-and-answer format in a transcript, pleasantries between people in Court, etc. The abstract is an intimidating task because it takes so long and is tedious.

The appellant has several opportunities to extend the time for filing the brief. Once the brief is filed, however, the person who won at trial and who is defending against the appeal (the “appellee”) now has thirty days to file a brief. Because the abstract and addendum have already been prepared, the appellee doesn’t need to do it again unless the appellant messed it up. The appellee can also request extensions in which to file the brief. Once that brief is filed, the appellant has one last shot to make an argument in a reply brief. After that, the briefing (arguing, basically) portion of the appeal is over.

After the briefing is closed, the case will be submitted to the Arkansas Court of Appeals or, in certain instances, the Arkansas Supreme Court. The Arkansas Supreme Court only hears certain types of cases on appeal.

When the Arkansas Court of Appeals makes its decision, either party can submit a “Petition for Rehearing,” which basically just asks the Court to consider the case again. A party can also submit a “Petition for Review,” which asks the Arkansas Supreme Court to hear a case on which the Arkansas Court of Appeals has made a decision. The Arkansas appellate courts do not grant these petitions very often. As with trial, it is always best to win as early as you can; the more times that you are told “no,” the less likely your chances of ever seeing a “yes.”

After the period for reviews and rehearings is over, the Arkansas Supreme Court’s clerk issues a “mandate,” which basically just tells the trial court what to do with its decision.

This is a broad overview of the appeal procedure in Arkansas, and it is just the tip of the iceberg. An appeal is not an issue you can handle without a lawyer. If you have a question about whether you should appeal, please contact us, preferably before the trial.

DWI Charges | Traffic Cues for Probable Cause

DWI charges are not routine; many people are stoppdwi charges in arkansased by police during their daily commutes, and few of those stops result in DWI charges. Some of these stops result in simply a warning and others may result in some minor traffic violation ticket. However, in cases where it is alleged that the driver has been operating a vehicle while under the influence of alcohol, the probable cause for the stop becomes very important. 

In a case where DWI charges are in play, there are three basic stages where the officer can detect cues and signs of impairment. First is the visual detection of impaired motorists, second is the divided attention phase, and third is the testing phase. Here we are going to discuss the first stage: The observations of an officer when you are actively driving the vehicle.

NHTSA (National Highway Traffic Safety Administration) sets the standards for investigating DWI charges.  NHTSA performs validation studies to determine what possible clues give rise to the probability that a person is driving under the influence.  NHTSA has developed a list of 24 driving cues, which are broken down into four categories: 1. Problems in maintaining proper lane position, 2. Speed and braking problems, 3. Vigilance problems, 4. Judgment problems.

First, we will address problems in maintaining proper lane position. The following are cues listed by NHTSA:

  • Weaving
  • Weaving across lane lines
  • Straddling a lane line
  • Swerving
  • Turning with a wide radius
  • Drifting
  • Almost Striking a vehicle or other object

You will note that actually striking a vehicle or other object is not a cue, only “almost” striking the vehicle or object is recognized as a cue. Therefore, when a person is involved in a vehicle accident, the mere fact that an accident occurred is not a cue to support DWI charges. 

Also, one of the fastest ways to get pulled over for suspicion of DWI in Arkansas is turning with a wide radius.  This is when you are making a turn and go outside of your lane and into another lane to complete a turn. The NHTSA guidelines specifically instruct officers to look for this cue and to stop the driver when the officer observes this behavior.

Second, speed and braking problems

  • Stopping problems (too far, too short, or too jerky)
  • Accelerating or decelerating for no apparent reason
  • Varying speed
  • Slow speed (10+ mph under limit)

NHTSA places a lot of weight on the driver not being able to maintain a constant speed.  If you are driving and not using cruise control, it can be difficult to maintain a constant speed if you are impaired. Furthermore, individuals who are driving at an excessively slow speed raise an officer’s suspicion because people tend to slow down when they are impaired to compensate for slower response times. 

Third, vigilance problems

  • Driving in opposing lanes or wrong way on one-way
  • Slow or failure to respond to officer’s signals
  • Stopping in lane for no apparent reason
  • Driving without headlights on at night
  • Failure to signal or signal inconsistent with action

Vigilance deals with a driver’s ability to know what is going on around them and act accordingly.  For example, forgetting to do simple things when driving, such as not turning on your headlights when it is appropriate to do so, or changing lanes without using your blinker, or even using your blinkers improperly. Another cue for officers is failure to respond to their emergency lights during a stop. If an officer has to follow you for a significant distance with their lights on or if they have to use their siren to get your attention, these are cues to the officer that your vigilance may be impaired by alcohol.

Fourth, Judgment problems

  • Following too closely
  • Improper or unsafe lane change
  • Illegal or improper turn (too fast, jerky, sharp, ect.)
  • Driving on other than the designated roadway
  • Stopping inappropriately in response to officer
  • Inappropriate or unusual behavior (throwing, arguing, ect.)
  • Appearing to be impaired

Impaired judgment from alcohol can cause many driving mistakes such as not being able to maintain a proper distance from surrounding vehicles or even making sudden or jerky movements while driving. Impaired judgment cues can even extend to driving in places not designated as a roadway, such as driving on the shoulder of the road or driving in the median or turn lane.

As you can see, many minor traffic violations can result in a traffic stop. However, some of those can also serve as a cue to an officer that you are driving under the influence of alcohol on an Arkansas roadway and result in DWI charges.  You should note, of all the possible cues we have discussed, one of the most common driving violations is not a cue.  Simply speeding, without any of the other listed actions, is not a cue for a DWI in Arkansas.  Therefore, if you are pulled over for speeding and nothing more and can pull over in a safe and timely manner, the officer has not observed any driving that will support a conviction for DWI charges in Arkansas, and must rely on their contact with you to make determinations about your possible impairment.  In the next several blog post within this series, we will address many of the post-stop cues, as well as addressing the three most used standardized field sobriety tests in an Arkansas DWI investigation.

As always, if you or someone you know has been arrested for DWI charges or DUI charges in Arkansas, contact our office for a consultation. We have offices in North Little Rock, Clarksville, Cabot, and Bryant.

Arkansas Bankruptcy | Role of a Trustee

The role of a bankruptcy trustee depends on whether you are filing a Chapter 7 or a Chapter 13 Bankruptcy.

Arkansas BankruptcyWhat is a Chapter 7 Arkansas bankruptcy?

Sometimes we don’t realize how much debt we have collected and don’t know we’re neck deep in financial trouble until it is too late. At that point you will have no other solution than to file for bankruptcy. The choice whether to file for bankruptcy is dependent on where you live.  In Little Rock, Arkansas this is the most favorable way to free yourself from this debt totally and walk away with a fresh start in every way.

There are only a few examples of debt that you are not able to escape through Arkansas bankruptcy. Child support, student loans, and taxes are some of the debts that cannot be discharged by declaring bankruptcy.

A chapter 7 bankruptcy is designed to give you a completely fresh start and eliminate all your debt.

What is a Chapter 13 Arkansas bankruptcy?

In a Chapter 13 bankruptcy, you pay all of your disposable income to repay your debt, in whole or part, over three to five years. This is called your Chapter 13 plan. Your “disposable income” gets calculated by subtracting your monthly expenses from your monthly income.

You make monthly plan payments to your Chapter 13 trustee, who then pays the money to your creditors. When you’ve made all payments under the plan, you receive a “discharge.” When a debt is “discharged” at the end of your plan, that means you are not responsible for any amount of that debt that still exists.  This is the main goal of bankruptcy: to get rid of your debts by paying your creditors a partial amount of your debt.

Because you are repaying creditors a portion of the debt, you generally do not have to give up any property in Chapter 13 bankruptcy.

(Here are common questions we get regarding Arkansas Bankruptcy)

Bankruptcy attorneys in Little Rock – What Do We Do?

We will guide you on how the law can help and protect you and your family from the creditors and debts you have acquired.  We can help you protect your assets and show you how to discharge some of your debts without paying your creditors anything. When you file for bankruptcy, it is mandatory to list all your assets. We will help you safeguard these assets from your creditors. We will help you prepare all the documents, or prepare them for you, and file them with the appropriate courts.

Bankruptcy lawyers help you to do the necessary paperwork to figure out which debts you must pay back, and which ones you may want to keep (“re-affirm”) to avoid having to sell certain assets. The ones you may want to keep, like mortgage loans, would be listed. Next, they would walk you through the process of appointing a trustee and credit counselor.  A meeting with the credit counselor is mandatory, but it can usually be done over the phone or online.

If you are filing a Chapter 13 bankruptcy, we will help you prepare your Chapter 13 plan. This plan steps out your monthly payments and how long your payments will be.

What is the role of Trustee in Chapter 7 bankruptcy?

When an individual files for Arkansas bankruptcy case in chapter 7, it is a big decision he or she is making. The process of filing for a bankruptcy and the procedures that take place after that can be a little complicated. To simplify and guide these individuals who have filed for bankruptcy, a neutral trustee is appointed to guide them through the process of organizing their assets according to the rules of the United States bankruptcy code.

The responsibilities of a Trustee will vary according to the individual’s needs and preferences. They have set of duties and responsibilities that come with their appointment that they have to follow.  Below are some of their duties and responsibilities:

  • Thoroughly reviewing and organizing the data
  • Efficiently looking through your materials to determine the truth about your debt.
  • Sometimes, assets must be sold in order to pay off some creditors.  The Trustee has the duty of figuring out whether an asset is exempt from sale.  If not, they will determine an asset’s value, sell it, and use the money to pay creditors.
  • Executing power over preferential transfers. Some individuals attempt to pay off certain debts before filing for bankruptcy.  If doing that kept other creditors from being paid through bankruptcy, the Trustee may be able to get back the money paid before filing, so that it can be equally paid to other creditors.

When you file for Chapter 7 bankruptcy, a bankruptcy trustee will be assigned to your case. The Chapter 7 bankruptcy trustee’s job is to oversee your bankruptcy case. The specific duties, and rights, of the Chapter 7 bankruptcy trustee are discussed below.

The Chapter 7 Trustee’s Commission

In a Chapter 7 bankruptcy, the trustee is mostly interested in what you own and what property you claim as exempt from sale in bankruptcy. This is because the court pays the trustee a commission on property that is sold to pay certain creditors. The trustee may receive 25% of the first $5,000, 10% of any amount between $5,000 and $50,000, and 5% of any additional money up to $1,000,000.

If your documents indicate that all of your property is exempt (which means you get to keep it), your case is considered a “no-asset” case and your creditors are told not to file claims because you don’t have any property that will be sold to pay them. The trustee also won’t show much interest in a no-asset case unless your papers suggest that you may be hiding or undervaluing assets. After all, if there is no property for the trustee to seize and sell to pay your unsecured creditors, then there is no commission for the trustee.

The Chapter 7 Trustee at the Creditors’ Meeting

The first time you will meet the Trustee in a Chapter 7 case is when you go to your creditors’ meeting, which you must attend if you don’t want your bankruptcy dismissed. Typically, if all  your assets are exempt, you will hear nothing further from the trustee.

However, if there are assets in your bankruptcy estate that aren’t exempt (“nonexempt assets”), the trustee may reschedule your creditors’ meeting and ask you to submit some other documents in the meantime.

More rarely, the Trustee may hire an attorney to pursue nonexempt assets you appear to own, or even refer your case to the U.S. Trustee’s office for further action if it looks like you have engaged in dishonest activity.  If you attempt to hide facts from the Trustee, the Court can dismiss your case and even disqualify you from filing for bankruptcy again.

See What Happens at the Meeting of Creditors? 

The Chapter 7 Trustee’s Duty to Seize Nonexempt Assets

If there are nonexempt assets for the trustee to take and sell, you will be expected to cooperate in getting them to the trustee so he or she can sell them. You will also be given the opportunity to buy the assets back from the trustee at a negotiated price or substitute exempt assets for the nonexempt assets.

Trustee Abandonment of Nonexempt Assets

If you have nonexempt property that isn’t worth very much or would be difficult for the Trustee to sell, the Trustee can—and often will—abandon the property, which means you get to keep it. For example, no matter how much your used furniture may be worth in theory, many trustees won’t bother selling it. Arranging to sell used furniture is expensive and rarely produces much, if any, money for the creditors.

Searching for Nonexempt Assets

Many people wonder whether a trustee can search their homes to determine whether they are hiding property. While such searches do not happen often, you may be required to take the Trustee on a guided tour of your home, if they think it’s necessary. And if you don’t voluntarily cooperate, the trustee can obtain an order from the court to force you to let them into your home.

Look for Fraud and Inaccuracies in the Petition

The Trustee is also required, under the supervision of the U.S. Trustee, to look through the papers you have filed to make sure they are accurate and to ensure you are not lying or otherwise trying to take advantage of the bankruptcy system.

Provide Certain Notices to Child Support Payees and Agencies

If you owe back child support, the Trustee is also required to provide notices to the person you pay support to and the state child support agency to keep them informed of your bankruptcy and help them find you after your bankruptcy discharge. Specifically, the Trustee is required to provide:

  • the person you pay (“payee”) with information about the state child support enforcement agency and his or her rights under the bankruptcy law,
  • the state child support enforcement agency with information about the back support and the payee, and
  • (when you are granted a discharge), the state child support agency and payee with information about the discharge, your last known address, the last known name and address of your employer, and the name of any creditor who holds a nondischargeable claim or a claim that has been reaffirmed.  These are creditors you either must pay or creditors you have decided to pay, regardless of filing for bankruptcy.

Both the payee and the child support enforcement agency can ask these creditors to provide your last known address. The laws specifically allows these creditors to turn over such information without any penalty.

What is the role of Trustee in Chapter 13 bankruptcy?

If you’re filing a Chapter 13 bankruptcy, knowing the trustee will maximize your chances of success.

Your Chapter 13 bankruptcy case is going to take 3-5 years to get all your debts officially discharged. I often tell my clients that we’ll be close friends the whole time, working together to smooth out rough spots and keep things rolling. It’s my job to take your financial situation seriously.

The judge assigned to your Chapter 13 case plays a far smaller role, getting involved only if there’s a major dispute or issue that can’t be resolved.

Lurking in the shadows is the Chapter 13 bankruptcy trustee.

Who Is The Chapter 13 Trustee?

The Executive Office of the United States Trustee appoints and supervises trustees and monitors cases under Chapter 13 of Title 11 of the United States Code.

The Bankruptcy Reform Act of 1978 removed the bankruptcy judge from day-to-day administration of cases because the judge also oversaw the trustee.

In response, most of the administrative functions in the bankruptcy system were placed within the U.S. Department of Justice by the creation of the United States Trustee Program.

In Arkansas you have the following Trustees:

Joyce Bradley Babin

Mark T. McCarty

Jack W. Gooding

Duties of A Chapter 13 Trustee

The Chapter 13 trustee has responsibilities to the court and to the creditors in your case.  We’ve listed some of those responsibilities below.

Review all filings to make sure they are correct

Review and verify information provided. The Trustee must review your first bankruptcy filing, including the petition, schedules, and statements (information about your assets and expenses), for accuracy. The Trustee may request financial documentation from you to prove the information you have provided in your bankruptcy papers and will require you to provide your tax returns and payment stubs to prove your income. You must attend a hearing (called the 341 meeting of creditors) where you must verify, under oath, the information you have provided and answer any remaining questions that the Trustee may have. The Trustee will also check that you have completed the credit counseling requirement.

Identify abusive filings. If you are attempting to hide assets or income from the Trustee or you have filed multiple bankruptcy cases in violation of the bankruptcy law or prior court orders, the Trustee must bring this to the attention of the court by filing a motion to dismiss your case.

Monitor for fraud and criminal activity. Any suspected criminal activity must be reported by the Trustee to the Department of Justice for referral to the United States Attorney and any other appropriate agency. The Trustee is also required to take steps to detect and prevent fraud or abuse by debtors, creditors. or any other party in the case.

Manage Assets

Participate in the bankruptcy case to recover assets. The Trustee may be able to get back assets that you gave away or sold to others before you filed for bankruptcy in certain situations. In addition, the Trustee may object to your exemptions if they have been claimed using the wrong section of the bankruptcy code. The Trustee may also work out an agreement with you to make sure you pay enough funds into your plan so that your creditors get as much as possible. The Trustee will also review the attorneys’ fees you paid, and file a motion with the court to recover any unreasonable fees.

Review your Plan

Participate in plan confirmation. The Trustee must object to the confirmation of your plan if it does not meet the requirements of bankruptcy law or if it looks like you won’t be able to make the plan payments. To do that, the trustee will make sure:

  • you are contributing all your disposable income (called a disposable income analysis),
  • that creditors will receive at least as much as they would have received if you would have filed a Chapter 7 (called a liquidation test), and
  • that you are able to perform under the plan (called a feasibility review).

Review your Claims

Review creditor claims. The Trustee must review creditor claims and either object to improper claims or see that you do so.

Manage your Payments

Collect plan payments and disburse to creditors. In a Chapter 13, you make your plan payments to the Trustee. The Trustee must make sure the proper amounts are received and, once the plan is confirmed, pay the funds to your creditors as set out in your plan. If you fall behind, the Trustee will bring this to the attention of the Court by filing a motion to dismiss your case. If your financial situation changes for the better, the Trustee may request that you change your plan to pay more money to creditors.

Provide status information. The Trustee must give information to creditors and interested parties in your case by responding to creditor requests or otherwise giving that information to creditors. The Trustee must also report to the Court and notify the Court when you have successfully completed your plan, making you eligible to receive your discharge.

Chapter 13 Trustee’s Commission. In a Chapter 13 bankruptcy, the trustee is interested in collecting and managing your payments. The Trustee gets a percentage of your payments handling your case. Typically it is 7% or less in Arkansas Bankruptcy cases.

What the Chapter 13 Trustee Will Not Do

The Chapter 13 bankruptcy Trustee isn’t your lawyer. He or she won’t give you legal advice, won’t tell you what to do, and cannot answer legal questions for you.

A bankruptcy is one of the most difficult and demanding times in a person’s life. It is best not to leave the bankruptcy to chance. There are many pitfalls (including many that I didn’t have the space to mention here.)

If you’re considering bankruptcy or have additional questions, please contact us.

Proud to Make our Home in Argenta, North Little Rock

If you haven’t been to downtown North Little Rock in some time, you really need to drop in.  Argenta, the historic portion of North Little Rock’s Main Street, is thriving after many years of mediocrity.  Anchored by City Hall, the surrounding blocks have seen revitalization over the past two decades that have made the area not only walkable but eclectic (and safely walkable!).

The Argenta Community Theater is a beautiful facility for fans of the arts and is surrounded by numerous restaurants and shops up and down Main Street.  A farmers’ market makes frequent appearances during summers while the old columned post office has been given new life as the Argenta Branch Library.  Just off Main is the residential area complete with townhouses, apartments, and old homes that have been lovingly restored.

argenta-wilson-haubert

The restaurants in Argenta are phenomenal. Ristorante Capeo is as good as any Italian restaurant in central Arkansas. If you’re looking to make your cheat day particularly rewarding, Reno’s wings and cheese fries will do the trick. Diamond Bear Brewing (on the west end of Argenta) has excellent sandwiches and, if you’re feeling your midwestern roots, fried cheese curds. And there’s always Mugs, on the north end of Argenta, for good coffee and wifi.

The Wilson & Haubert office is located in the US Bank building just across from City Hall.  To our east, on one end of Broadway nearest I-30, Verizon Arena beckons concert goers, graduating classes, and sports enthusiasts.  Replacing a shopping center, the arena has made North Little Rock a mecca for a variety of major events in central Arkansas and beyond.  The list of major music acts alone is impressive.

We are bracketed on the other end of Broadway by Dickey-Stephens Park, the home of the Arkansas Travelers.  The ballpark overlooks the Arkansas River while the Little Rock skyline makes a stunning backdrop.  The Arkansas Razorbacks even come to play in the park on occasion, just as their basketball counterparts make it to Verizon Arena during their own season.  The USS Razorback submarine makes the North Little Rock riverbank its watery berth and cyclists glide along the Arkansas River Trail as it winds its way around the homes on the riverwalk.

And the growth doesn’t appear to be stopping anytime soon. Just this month, First Orion announced that it would be moving its global headquarters to Argenta.

All in all, North Little Rock is a great place to live, play, and work and each year it only improves.   If it has been some time since you’ve been to Argenta, take a drive around or, better yet, park and walk along the riverbank and the tall trees that line the Arkansas River.  More than likely you’ll discover something old, but you’ll also find many things new.

Do I Really Need an Attorney?

I can’t count the number of phone calls I have received over the years from people who begin their conversation with, “I’m not sure I need an attorney…”  Do you always need one for every situation in life?  Probably not.  After all, every sniffle doesn’t mean you need a doctor, and there are a lot of online resources that can walk you through simply issues.

But if you have a question that might need a lawyer, why not make the call and determine if one is necessary?  My first response to that eternal question as to whether someone needs legal advice is the same: “Our attorneys don’t charge for the initial consultation, so it won’t cost you anything to decide if you need their services.”

phone attorneyThe question is really one of risk. The risk of asking an attorney if you need his or her help is low. (Well, it’s low at our firm anyway—the initial consultation is free and the advice is always honest. I can’t speak for other firms.)

But the risk of potentially needing legal help and not getting it is tremendous. The cost associated with handling a legal issue is far less than the cost associated with fixing a legal problem. Legal issues become legal problems when you ignore them or, often worse, try to handle them without the help of a lawyer.

Many people decide to wade those legal waters alone only to discover soon afterward they’re in way over their heads.  Why not ask questions first before making that leap?  Hiring an attorney may save you a lot of money and heartache in the long run.  On the other hand, if your situation isn’t nearly as full of minefields as you envisioned, our attorneys will be happy to let you know that as well. (Assuming (correctly, we think) that people value honesty and us giving away the business is enough reason to hire us next time.)

We’re here to help, but only if we are really needed.  If you can navigate those waters just fine on your own, we’ll let you know, and if you really need a legal team on your side, we’ll be honest and tell you that, too.

Just don’t drown in legalities before taking us up on a free consultation!

Arkansas Medicaid: What You Need to Apply

Helping your parents or other family members enter a nursing home is always difficult, no matter the financial situation. There is the stress of deciding which home is best for your loved one. There is the sadness in seeing your loved one taken away from the home that he or she has come to love. And there is usually some guilt (or at least second-guessing) about whether the family could shoulder the burden itself.

arkansas nursing home medicaid

It is particularly hard when you’re not sure how your loved one is going to pay for it. Most Arkansas residents depend on Medicaid to pay for their nursing home costs. Wilson & Haubert can assist you and your family with the Medicaid application process and, though it may seem daunting and you will have some “homework,” we try to make it as painless as possible.  Like any homework, we do our best to outline exactly what you’ll need to do and that begins with providing you with a list of documents that DHS will want.

Here is a list of the types of things we need to complete an Arkansas Medicaid application:

  • Social Security Cards
  • Medical Supplement Cards
  • Birth Certificates
  • Complete financial statements from 90 days prior to admission
  • All deeds owned within last five years
  • And Power of Attorney Documents
  • Marriage License
  • Property Tax Statements for preceding year
  • Utility bills for last 90 days
  • Life insurance policies

We want copies of anything and everything related to these documents—you may retain all original documents in your possession.  It is also important to provide complete copies of all financial statements (all pages (front and back) and check copies, if applicable.)  Doing so provides DHS with detailed information on all expenditures. The more details in your Medicaid application, the better.

Work through that complete list one item at a time and you will soon have everything we need to go along with your Arkansas Medicaid application.  We will organize the documentation and spreadsheet to include all assets so we may have clear, concise materials for our files and for DHS’s review.  Having all those preliminary supporting documents upfront with the application makes our job and DHS’s job much easier. (Which means you are likely to get approved for Medicaid faster!)

There will most likely be additional items a Medicaid caseworker will request later as they work through the case.  But, having done the bulk of document gathering at the beginning of the application process means less work later when a deadline is looming for those items.  At the end of the day, we are here to help answer questions and assist in streamlining the process for you and for your caseworker.

Please contact us if you are concerned about you or a loved one qualifying for Arkansas Medicaid. It may be cliché, but when it comes to planning for long-term care, an ounce of prevention is worth a pound (maybe five pounds!) of cure.