Freeland Martz Negotiates a Reduction for Bank’s claim against client by $226,223.62
The firm’s clients became the victim of a bank fraud and check kiting scheme in which their names were forged on loan documents as part of a multimillion-dollar check kiting scheme. The check kiters used the loan proceeds to support the kiting scheme which eventually collapsed. The kiters and financial institutions then sought the clients to cover the losses. Through a review of voluminous account records at various banks subpoenaed by Freeland Martz, the law firm discovered the kiting scheme. When the clients realized they had been unwittingly paying for an unlawful kiting scheme, they stopped making loan payments, and Freeland Martz began litigation with the check kiters and the various banks who the clients alleged activities participated in the scheme. Freeland Martz settled with five of the banks and recently settled with another bank that filed a claim against the client in the amount of $271,223.62. That Bank and the client agreed to settle for the one legitimate loan the client had signed in the amount of $45,000. The other loans were questionable on which the client’s signatures were alleged to have been forged. The settlement valued at $226,223.62 in debt forgiveness. Each party settled for their own reasons, and the bank denied liability for the claim. To date, the firm has helped the clients realize $8,297,399.93 in settlements of loan forgiveness and settlement proceeds paid to the clients. The firm and the clients worked together resolving these cases.
A WILL OR A TRUST: WHAT’S BETTER FOR YOU?
Some financial advisers strongly suggest that you create a trust to avoid probate courts. Their thinking is that the costs of probating a will outweigh the costs of creating a trust.
A simple will involving a couple, their house, and some personal property is not expensive to create. Probate courts are intended to identify the heirs; to appoint a fiduciary to locate and disperse estate assets consistent with the deceased person’s will and state law; to resolve conflicts regarding the preparation, execution, and distribution of estate assets; and to oversee that process. A probate court also requires persons who might challenge a will to address those issues in open court, so if they have a complaint, it’s time to “put up or shut up.” More often than not the challenger does not appear because the person is unlikely to convince a court to change a will the decedent was fully capable of making.
A trust is a private agreement carried out by a trustee over a longer period than the time it typically takes to probate a will. Trusts are convenient and inexpensive ways to transfer your assets when assets are held by a financial institution. Trusts are as different as the person’s intentions in creating them, so they are better at tailoring a plan to a family’s unique circumstances. Occasionally we see clients who have created a trust, but because they do not transfer all of their assets into the trust or identify assets they intend to include in the trust, their heirs have to probate an estate to transfer assets left out of the trust anyway.
The mistake folks often make is trying to figure what document they want to have prepared rather than considering what their assets are, what is important to them, and how their estate could further those values. Those considerations — and the size and complexity of your estate — often dictate what documents will help you carry out your unique plan while ultimately saving you and your family money and helping avoid conflicts and confusion over what you intended. Filling out a form based upon what you guess might be “OK” or one that some TV commercial recommends won’t do that. Tailoring documents to your needs will better carry out your goals. As we often said in the Navy: “Proper planning prevents poor performance.”
The Problem with trying to take control of your parents’ assets
As long as your parent is competent, he/she can make financial decisions for themselves, even ones you consider foolish. As long as you are competent, you can do foolish things you’re your money. Why do you thing Casinos make money?
Attempting to gain control through a conservatorship can create real conflict. Regardless of the level of your parent’s competency if you can and protect him at the same time it is best to would involve him in the decisions making that he needs assistance and you would like to help. Even if you have a power of attorney you should keep your parent advised of plans and transactions. Attorneys in fact have a duty to account for transactions utilizing powers of attorney, must act according to the terms of the power of attorney and for the benefit of the parent who appointed and signed the power of attorney. A power of attorney can be revoked. Going to court can be the “nuclear option,” upsetting to all. We have seen a summons issued without prior notice or discussions divide families and give financial predators an opportunity to exploit the conflict. Short of going to Court, keeping involved and closely monitoring things is essential. If you loved one is being exploited and does not comprehend what is happening, going to court may be the only option to protect them. Even then, your Parent should be consulted as much as possible and throughout retain their dignity. After all, who wants to give up total control or understanding of their circumstances?
So, you want to share your estate plan with your heirs?
After making your estate plan, you think you may want to share your estate plan with your heirs for emotional and practical reasons. For example, you have an estate that you want to share and for your heirs to enjoy, and as a practical matter you want those who will carry out your estate plan to understand your assets and how to carry out your plan. A few things you might consider:
- Will those you tell respond with gratitude and understand your plan and how to carry it out?
- If you ask the folks you tell to keep the plan in confidence, will they do that?
- Will someone be upset about your plan in a way that affects your relationship, or will they try to get you to change your plan?
- If one of your heirs has an addiction will your gift aggravate that?
Remember that legacy bequest in an estate is a gift, not an entitlement. You should accept your heirs for who they are:
- If they are spendthrifts, don’t give them money freely where they will waste it and soon be left with nothing.
- If they are financially responsible and trusted by you, family members, or your other heirs, that person is probably the one you should appoint to administer your estate. Telling them alone will be helpful in carrying out a more complicated estate plan.
- If there is a family dynamic of some dependency or sibling rivalry, you should not tell your children and create family conflict.
Money is a funny thing. It is simply a tool, which can do a lot of good or create division and harm. Your estate plan should further your values, enhance your and your family’s gifts, and bring joy, not drama or conflict. You best know best. Give joyfully – not out of a sense of obligation. We can help you do things that no downloaded form ever could – to help you clarify and understand your values, your family, and your dreams.
When family gets too involved in estate planning. Before I spoke at an Elder Law Conference group of social workers were discussing having family meetings about how to dispose of a parent’s estate. The idea was families should get a consensus in creating an estate plan. Such a Family meeting would likely make any document created from a family meeting void. Because Courts wish to protect the intentions of the testator, the person making the will, many states have presumptions that discourage heirs from being involved in the preparation and execution of a will or trust. Heirs can have a very limited role in estate planning. The greater the family’s involvement, the more likely testamentary documents can be challenged. First and foremost, the person making an estate plan should ensure their needs during their lifetime will be met. Second, a will should leave a positive legacy, not aggravate problems within the family. Enhance the gifts of your Family, don’t aggravate the problems.There is no perfect person or Family. An estate plan should be consistent with your values and make you feel good about having planned well. Elderly persons want security and good family relationships. Some folks will do about anything to avoid a family conflict to the point of sacrificing and compromising their values or giving in to pressure. Getting professional help to formalize a good plan will be less expensive and create less uncertainty for your Family. LIVE WELL, GIVE WELL.
The Problem With “Do It Yourself” Wills: They Usually Don’t Work as Intended
We are occasionally asked to probate a “Do It Yourself” will, which someone either prepared by writing what they thought a will looked like or through some sort of downloadable form. Like most states, Alabama, Mississippi, and Tennessee (where we practice) have specific requirements on what it takes to probate a will as a valid and enforceable testamentary document. In our practice, we have seen less than five valid wills that have been prepared by non-lawyers. More often than not, the “Do It Yourself” documents don’t accomplish the purpose as intended, create problems for those who are left to probate the will, and increase both court costs and attorney fees.
Typical problems include: the beneficiaries of an estate being too involved in the preparation of the document; the document not being properly witnessed, and therefore difficult to enforce; or the document being unclear in its terms. These issues usually prevent the document from being considered a valid will, and thus leave the court giving the estate assets to whomever state law dictates. Doing it yourself and guessing how to prepare and execute a valid will is risky. Planning can avoid these uncertainties, out-of-pocket costs, and conflicts. By planning your will, we can ensure that your estate will be left with the people you intend. We prefer to help you plan for the future and achieve your goals rather than attempt to fix past mistakes. Saying what was intended never works.
Guides to help those who manage another people’s money
The Consumer Protection Bureau is a government agency that helps protect consumers from being exploited. Through their office they have published helpful guides for those who manage other people’s money, such as powers of attorney, trustees, guardians and conservators. The purpose of the guides is to protect the consumers who are acting through their fiduciaries and instruct those persons managing their money concerning the proper use and accounting of transactions in behalf of financial caregivers. The website may be found at https://www.
Freeland Martz Negotiates a Settlement of Racketeering Claim valued at $1,595,986.02
The gentleman was examined by a court appointed expert who found the gentleman incapable of managing his financial affairs and susceptible to undue influence. As a result, the Court found the gentleman incompetent and appointed his daughter as his conservator.
Thereafter, a finance company filed a claim for over $900.00 for furniture obtained on credit and a $1500.00 mailed out check sent to the gentleman. The Conservator objected to the claim. The Chancery Court found due to the appointment of a conservator, and the gentleman’s diminished capacity, he lacked the ability “to make a contract and give mutual consent.”
Client’s $177,019.00 judgment given priority over Bank’s deed of trust of $701, 000.00
A farmer came to the firm after he filed a judgment of $177,019.00 in a county where the judgment debtor was located. The judgment debtor owed approximately $701,000 which was secured by a deed of trust on his property by “Bank A”. The judgment debtor sold the property and the purchase price was financed by “Bank B.” Bank B paid off the first debt owed on the property, releasing the deed of trust owed to Bank A. However, the farmer’s judgment was not paid off when the sale of the property occurred. Bank B sued the farmer claiming the farmer’s judgment was void and that it was not “fair” that the framer’s judgment debt would have priority over Bank B’s debt because the bank had paid $701,000.00 and financed the purchase. Because the Bank B’s deed of trust was filed after the farmer’s judgment, and the Farmer had properly filed his judgment, the Court denied Bank B’s motion which placed the farmer’s $177,019. Judgment ahead of Bank B’s $701, 000.00 deed of trust.
Predator incarcerated for six months for taking pray upon elderly clients
After the chancery court entered an order prohibiting a predator who was determined to financially exploit an elderly gentleman – even while serving a 90-day jail sentence for contempt – the chancery court extended the predator’s sentence for an additional six months hoping that would get the predator’s attention to leave the gentlemen alone.
Hale Freeland to address the use and abuse of powers of attorney
Hale is presenting a program concerning the uses of powers of attorney and problems that arise from the abuses of powers of attorney through self-dealing. The educational program will be presented to Northeast-Mississippi attorneys sponsored by the Prentice County Bar Association as a part of the Prentice County Bar Association’s annual continuing education program on July 27 at J.P. Coleman State Park near Iuka.
Hale Freeland obtains Court protection through a guardianship for Navy Veteran
A Navy Veteran’s sister and her other siblings’ discovery that a relative was taking advantage of the Veteran as she lost capacity with memory lapse. The relative used a power of attorney that the Veteran had signed to obtain her home and the income from her Veteran’s Navy pension. At a loss of what to do, the Veteran and her sister came to the firm. The Veteran recognized she needed assistance, wanted her house back and wanted to avoid the abusive use of the power of attorney she could not remember whether she signed. The firm obtained protection from the Court through a guardianship which the Veteran agreed to, through which her assets could be recovered and her income will be protected and accounted for. The firm was also able to get her house back.
National Business Institute’s Evaluation of Attorney Reed Martz
In making his presentation on the recent changes applicable to Mississippi Gun Laws Reed Martz received a total evaluation score of 64 out of 65 (average 4.92 where 5 is “excellent”/top score).
Gun Law in Mississippi
Reed Martz will be speaking on topics which have recently been before the legislature, the courts and in the news; “Gun Law in Mississippi” in a seminar put on by National Business Institute on June 15, 2018, in Olive Branch, and then again on June 19th in Pearl, Mississippi. He will be covering topics such as Firearms and Their Regulation, Firearms Dealers and Licensing Requirements, and Ethical Considerations When Representing Gun Owners or Dealers. Also, Reed will speak on July 13, 2018, at the University of Mississippi Center for Continuing Legal Education’s “Current Issues in Civil Rights” seminar on the Second Amendment as the Courts have interpreted and applied it.
This week Reed Martz became licensed in Georgia. The firm now has attorneys licensed in Mississippi, Alabama, Georgia and Tennessee!!
Recovery for heirs after Executor of Mother’s Estate discovered Mother’s funds converted through a power of attorney
After a client’s Mother’s estate was opened the Executor began determining what assets the decedent his Mother had and found irregularities in accounts held in common, and not jointly with other her Brother. Before being appointed as his Mother’s executor, the son lacked access to the accounts which she failed to monitor as she lost the capacity to do so. Her funds were converted through the use of a power of attorney her brother had signed as the Brother and Sister began to lose the ability to keep up with their funds. The attorney in fact for the Brother took the funds held in the Brothers and Sister’s names for himself. The suit was filed on behalf of the Mother’s Estate and the firm was able to receive over well hundred thousand dollars taken by the attorney in fact.