THE TSUNAMI IN REAL ESTATE AND INVESTMENT!

Eckley & Associates Video ArticleTHE TSUNAMI IN REAL ESTATE AND INVESTMENT!

REPRINTED FROM “COUNSELOR’S CORNER”,  Ed. 47
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© ECKLEY & ASSOCIATES, P.C., 2011
MARCH 1, 2011


EDITOR’S INTRODUCTION: A BROADER PROTECTIVE FOCUS
In past Counselor’s Corner articles, I have written extensively about the Ongoing Real Estate Crash and how to cope with it as a daily matter. For the most part, the former articles have dealt with methods usable as emergency steps to salvage the wreckage after the main wave of the earthquake and resulting Tsunami has already passed. I have for the most part been prescribing triage after the initial inundation and the water-swamped nuke plants of the economy have already sprung radioactive cracks in their reactors. These prescriptions were better than drowning from the first wave, of course, but they begged the now more pressing challenge of how to survive from the post-wave threat of escalating and long-lasting economic radioactivity. Watching our government’s inability to patch those economic cracks despite numerous attempts ranging from hysterical to downright bone-headed, and noting that the government-ignored and denied financial contamination has now entered the oceans of our long-term economic future, thus contaminating it with likely deficits for eons to come, in this article I felt it necessary to speak to more lasting protective measures. This time around I make the assumption that recovery, left to its own, is going to be too late to save whatever still-economically-valuable asset that did not get washed away in the first crashing wave from the coming post-wave melt-down. In this article I talk about one method for saving whatever viable assets consumers and investors now have left from the personal liabilities and risks the Crash also left behind. It’s about comprehensive, lawful asset-protection.

There are more modest methods of asset protection: Moving accounts into the exempt assets every state allows is one. There are other really simple steps like removing bank accounts out of the state where the legal troubles lie. There are risky (and sometimes unlawful) ones like moving money off-shore to one of the few remaining “safe havens” for cash which do not recognize U.S. jurisdiction, judgments or laws. (And that is no longer Switzerland after IRS recently got most of the Swiss Banks to concede a new transparency). Those are worthy of discussion, but in this article I wanted to take this time to acquaint the reader with lawful, local ENTIRELY NEW methods for asset-protection. The centerpiece of this article will be the “REVERSED” Limited Liability Company (“LLC”) avenue of protection. The NEW methods use the LLC just only insulates owners for the risks INSIDE the entity, but also offers the lesser-known protection of protecting assets inside the entity against owner risks OUTSIDE of the entity—such as a host of other creditors on or soon to be on the warpath against the owner from other worldly debts.

To do this, I first examine the PAST use of the typical liability-limiting entities out there—corporations, partnerships, trusts—and then I explain how the radiation of liability has been construed by recent law to penetrate them. Having shown those new cracks in the old containment walls, I then explain the NEW lead-shield on the block, the “REVERSED” LLC. An advance warning to Readers: Don’t try this at home. In using any of these, competent legal counsel in this area of practice is absolutely mandatory!

LEGAL ENTITIES IN THE UNITED STATES, GENERALLY:
The laws across the United States have developed a number of business entities. For the most part, they are created by state legislatures to allow individuals to aggregate capital for purposes of investment. The statutes allowing them are then “interpreted” by the courts. Over time and across the country one will see corporations, personal or business trusts and Limited Liability Companies (“LLC”) all come into vogue (and in some cases fade) as the usual entity vehicles to acquire, own, operate and sell assets of some kind, usually for an anticipated profit. They are usually formed by an aggregation of capital paid into the entity by investors, an entity business plan that is common among the investors, a written agreement between the investors establishing the purpose of the entity and the internal procedures to accomplish it and the entity usually names a central management and provides a buy-sell arrangement between new and exiting investors and sets how and when the entity will dissolve, among other common attributes. In the eyes of the law and in contrast to a living person simply gong into a proprietorship-like business, the entity (following formation and operational formalities) becomes an “artificial person” separate and apart from the investors who came together to form it.

Since the subject covered in this explanation is not a dissertation on how to form and run a business, but rather how these vehicles can be specially and uniquely used in a liability setting, this presentation now turns to that and starts with an additional focus on the “entity” concept.

MORE ABOUT ENTITIES:
At this point it would help to define “entity” as it is used in liability protection. An “entity” as the terms is used here has to be distinguished from a pure association of living individuals. The “entity” in law that is spoken of here is one that has the legal quality of being an “artificial creature” that is not a natural person, an artificial being that is separate from the people who have formed it. A corporation is the traditional example of that, where shareholders or promoters form and capitalize it are natural, living persons, but where afterwards it is the corporation that is the “person” holding the assets and conducting the activity, not the individuals who formed it. In addition to being the simplest example, a corporation, it could also be, as noted above, certain types of trusts, the LLC and others.

Some people think all legal forms that might look like an “entity” are so. They are not. An organization of purely natural persons in which all have legal exposure for the acts of the venture is not a pure “entity”, though these other organizations are often confused as entities or, stated another way, some people form them and believe themselves behind an entity protection when they are not. Examples of organizations in which there is no “entity” and thus no or less liability barriers are general partnerships, joint ventures, even limited partnerships (which in most states must have at least one general partner who is unlimitedly liable for the acts of the venture) and trusts where the beneficiaries have the power to control the trustee. In these, the acts of a single partner for the partnership or the acts of the partnership generally can bind or expose a partner individually and beyond the assets that are in the partnership or the act of the beneficiary rather than the trustee can become the act of the trust. There is a different treatment for outside liabilities by outside creditors discussed below, but, still, these entities are in name only as to liabilities and have penetration issues inside and outside that others, such as a Limited Liability Company, do not. There is more discussion, below.

CONTRASTING ENTITY GOALS:
The primary goal of most entities is to insulate investors from the liabilities of the business, to create a “shield” between the business and the individual investor so that the business entity is between the investor and the risk of the business and the investor’s liability is limited to the amount of the capital investment he or she put “at risk” into the entity. Thus, if the business itself has a creditor, the creditor’s relief is limited to the assets of the business, and, except in extreme cases, the creditor cannot pursue any assets other than those of the business itself. The liabilities of the business itself can be referred to as the “inside liabilities ”—the ones that only pend against the entity and not the separate investors, personally. The business entity is then the only liable party and it is liable only for the business debts it has incurred and is not liable for the separate, unrelated personal debts of the investors (except in ways that will be discussed, shortly). Any liability to the creditors against the business makes those creditors “inside creditors.” As long as the entity is distinct from its owners, is adequately capitalized, operates according to its own and legal formalities, is not used to perpetrate a fraud, and the investors did not themselves commit the act or omission in the scope of company activity, then the entity will normally protect its investor-owners from inside liabilities and inside creditors.

NOTE ON PARTNERSHIPS:
There is an exception and that is the general partnership, as noted above. In a general partnership, general partners are liable for the debts and liabilities of the partnership. Similarly, general partners of limited partnerships and related entities are also liable for the liabilities of the partnership.

NOTE ON TRUSTS:
Trusts are also not particularly effective in most cases. Most of them allow the Trustee to be an individual and have a great deal of discretion in trust operation. The Trustee can become liable to inside creditors in some cases. But the largest “hole” in trust protection is that the beneficiary (who in most cases also initially funded the trust) usually also appoints himself or herself as his own Trustee and/or also holds powers to change the trustee, the trust, add to it, take away from it—a collective “bundle of control” that makes the beneficiary as totally in control as if it was his or her own pocket and thus he or she is merely the “alter ego” of the trust and vice versa. At that point, it is questionable whether legal and equitable title and control are even split enough to call the resulting phantom entity a “trust entity” at all. In any event, inside and outside creditors can penetrate “alter ego” and “phantom” trusts and claim directly against beneficiaries or trustees for trust and beneficiary liabilities. There really is no trust for legal penetration purposes. The same for those joint ventures and limited partnerships and other entities noted above which are not even the classic entities first discussed.

THE NEW TREND: THE ENTITY AS SHIELD TO MEMBERS FROM OUTSIDE PERSONAL CREDITORS:
As the last 30 years of law has worn down the use of the entity for inside creditor protection, it has done wonders for the protection of entity members who have REVERSED the traditional inward-looking philosophy of the entity and instead used the entity to protect INSIDE entity assets from the outside person and entity-unrelated liability of the members. In the most recent uses, the entity is not used as a barrier between inside creditors and outside members. The entity is, instead, used as a barrier between the outside, unrelated liabilities of the members and the assets inside the entity. Stated as an example: In the old use of an entity, some asset like an apartment complex was placed in a corporation by its owners to insulate the private wealth of the owner-then-shareholders from the many liabilities of running an apartment complex. Claims arising form the asset would have to sue the corporation instead of the owners and liability was limited to the corporate assets and did not penetrate through to the other outside assets of the shareholders. In the new use of entities, the investing shareholder, facing an outside personal risk or liability in his personal portfolio unrelated to the asset—such as a large potential judgment in an entirely unrelated matter--transfers that untainted valuable asset into the corporation to protect that asset from attack by their own personal creditor. It is a complete paradigm reversal. Very few business and legal counselors know of or understand these methods.

MORE ON THE RARELY-DISCUSSED, RARELY-UNDERSTOOD LIABILITY EXPOSURE AND REVERSE AND PROTECTIVE USE OF ENTITIES:

Stated again since it is such a reversal in the conventional thinking that the point is often missed: There is a reverse side to the liability equation that is rarely if ever revealed in even recent entity analyses. That is where the individual investors have a personal liability that may not even have arisen from the business of the entity and the creditor attempts to reach their stock, membership or other interest in the entity. In that case, they seek then to protect the entity from personal creditors of the investor-owner, who are commonly referred to “outside liabilities” held by “outside creditors.” Some protection from an attack on the ownership of the business by inside creditors was statutorily granted by most legislatures to encourage commence as noted above. But little or no protection was given or contemplated by most legislatures for protection of the business from the outside creditors of the owners. Instead, under most statutory designs, if the owner has debts of his own, then the outside creditor is usually given avenues to collect those debts from whatever non-exempt property is available, including by levying against the ownership interest in the business as, for example, by seizing and selling the individual’s shares of stock in his business corporation or interest in a general partnership, trust or the like.

EXAMPLES OF THE REVERSE EXPOSURE:
In a corporation, a creditor may simply attach the shares of the debtor’s stock to gain all the rights that the debtor had in the corporation, including rights to sell the shares, voting rights, the right to view books and records, and rights to bring derivative actions against errant corporate officers and directors, dividends, stock splits, etc. In some cases this is also catastrophic to the entity, as, for example, if the corporation is an “S” corporation, and the creditor is not an individual, then the creditor’s attachment of the stock may cause the “S” election to be terminated, which would possibly result in unwanted tax consequences to the remaining shareholders (“S” stock can only be held long-term by natural persons and not trusts or other businesses). Legislatures are not concerned with interference of corporate business when a creditor has attached an interest in stock because shareholders are two full steps removed from business operations. Shareholders elect the directors, directors elect the officers, and officers run the business. Allowing a creditor to attach the shares of a corporation only indirectly affects the corporation in the election of directors. Likewise, there is no protection from levy or execution against trust, true and beneficiary interests for the trust, trustee or beneficiary who meet the “alter ego” or “phantom trust” tests noted in brief, above. Thus falls away any kind of liability protection for almost all “living trusts” which are almost always susceptible to penetration as they are written (though they may still be good for passing probate or generation-skipping estate tax savings—that is, assuming anything is left after the creditors readily penetrate them). It is safer to generalize that for all intents and purposes under most current law, the grantor/beneficiary-generated or directed trust as an asset protection tool is dead.

THE PROTECTIVE USE OF ENTITES FOR REVERSE EXPOSURE:
Even though the legislatures and courts left the door open for a “reverse” attack on a debtor’s assets by liquidating his entities through his equity holdings in them, legal practitioners and the courts have generated protections that may never have been anticipated. The courts have come to permit these entities to also protect themselves and their holdings from outside owner liabilities, using the entity not just as a insulation of owners form the business risk of the entity, but to insulate the entity form the outside business risks of the owners. Now, many well-advised owners organize these entities as many times for the latter new protection as the former conventional protection.

NEW METHODS:
The risk to some entities from outside liability and outside creditors is complete liquidation and the loss of all control and capital. But this result is not inevitable if the paradigm-shift above is understood and thus the planning is done to fit it. There are ways and entity uses to work with that through such things as levy-as-default clauses triggering foreclosure by the entity against the investor’s interests or a “liquidated damages for default by key person” buy-sell agreement—all of which work best for corporations or pre-existing entities where structures cannot be changed without some other negative--and these can be discussed with attorneys who are competent in this kind of new practice. If starting this from scratch, the Limited Liability Company, coupled with the same Membership restrictions as just noted by way of example for corporations, is the better vehicle.

THE LIMITED LIABILITY COMPANY AS TODAY’S “WHITE KNIGHT”:
In this section, the discussion turns to the one or two entities that appear from current law to offer the better protections (of what protections there are) because, in addition to the above, they may also be subject only to the lesser burden of a “charging order” in the event the investor or entity is attacked from the outside creditor for an outside liability. The “charging order” and those entities it works with best, i.e. the Limited Liability Company and its unique quasi-partnership, quasi-corporate legal status in an outside attack by and outside creditor, and the pure partnership, is covered, below. Coupling it with the “non-alienation” membership covenants and obligations for corporations, above, generates one of the tightest current asset-protection ships in the legal fleet.

RESUMING THE “REVERSE PROTECTION” IN A DISCUSSION OF CHARGING ORDERS:
Now that the above entity issues have been explained, the new use of these entities to protect from “outside liabilities” and “outside creditors” can be resumed. As discussed above, a key difference between corporations and partnerships or LLCs centers around management and control – the ability of investors and owners to run the entity as planned when they joined together initially or permitted the addition of a new member at a later date. With a large corporation, if a creditor seizes control of a debtor’s ownership interest in the form of stock certificates, the new creditor-owner is still but one of potentially thousands of fractional owners with voting rights and rights to dividends or to buy or sell stock shares, but little actual control of the entity. On the other hand, using the apartment complex LLC example from above, if that LLC was formed by a few close friends or relatives, the involuntary imposition of a new, likely hostile creditor-member to the mix essentially destroys (or at least drastically shifts) the benefits of management and control the owner-members previously enjoyed. Unlike with a large corporation, the new member’s interest is likely significant and if not curbed, could result in involuntary dissolution, among other risks. And all of this could come crashing down upon the heads of innocent, non-debtor members of the LLC who would be forced to do business with creditor-owner with whom they have no previous connection.

In recognition of these dire consequences unique to closely-held corporations and LLCs, legislatures across the U.S. have put “charging order” protections on the books. These protections limit a creditor seeking to levy on the LLC ownership interest of a debtor to what is essentially a wage garnishment. A traditional garnishment permits a creditor to receive payment on its debt through a suit on the debtor’s employer requiring payment of a portion of the debtor’s earnings directly to the creditor. A “charging order” in the LLC context simply permits the creditor the right to payment of entity distributions or “dividends” which the entity chooses to make to the debtor-member. The “charging order,” standing alone, does not permit the creditor to take ownership of the membership interest or to enjoy any of the normal rights and benefits of ownership such as voting, management, or other incidents of control.

To obtain “charging order protection” a creditor must first wage a series of battles en route to the castle (the LLC).

First, beginning with an unpaid outside-obligation of one LLC member and a determined creditor, the first step is typically for the creditor to file suit on the debt in an appropriate venue. Second, the creditor must pursue its claim and prove the validity of the debt and the invalidity of any raised defenses to obtain a judgment. Third, the creditor will typically record its judgment in one or several jurisdictions as a lien on real property of the debtor. Forth, a creditor with a recorded judgment will be permitted to conduct a “debtor’s exam” or other discovery of the debtor’s assets to determine what, if anything, is available to satisfy the judgment. Assuming the debtor’s non-exempt assets are not attractive enough for the creditor to stop here, the creditor may find the LLC membership interest attractive enough to begin the next battle which begins at the castle gates.

A judgment-creditor may seek out a charging order against the debtor’s interest in the LLC which would entitle the creditor to the “garnishment,” discussed above, of the debtor’s distributable earnings from the entity. Again, this would not, by itself, entitle the creditor to any other rights of full-ownership. If the judgment is in the same state as the LLC is formed, obtaining a charging order is not a difficult task. A qualified and informed attorney can advise you whether setting up an LLC in a foreign state is an added protection worth consideration under your particular circumstances.

If a judgment creditor wishes to go further, it may also seek to foreclose the charging order. The key creditor-advantage in foreclosing a charging order is to make the creditor’s interest in the LLC more permanent. Rather than a “garnishment” right to any distributable earnings until the debtor-member’s obligation is satisfied, the judgment-creditor with a foreclosed charging order receives a permanent right to the economic distributions (but still not a full-fledged ownership interest permitting voting rights or other incidents of control, such as the ability to sell off LLC assets). Notably, due to the permanence of the foreclosed charging order, a creditor may then become obligated for certain member tax obligations and will likely receive a K-1 for income, whether or not it is actually getting paid. On the other hand, depending on the LLC’s Operating Agreement, a creditor with a foreclosed charging order interest might also receive the right to demand inspection of company books and records, have a receive appointed and demand LCC distributions where they are economically appropriate. In extreme cases involving very poorly drafted operating agreements, a creditor, especially one who has foreclosed a majority interest, may even seek to have a court partition the LLC for purposes of satisfying the debt. Some states have sought to limit these consequences by precluding the foreclosure of a charging order. However, as noted above, a foreclosing creditor may become liable for company tax obligations as an “owner” which a debtor or remaining LLC members might actually benefit from. As the saying goes, the creditor “no longer wants the cheese, it just wants out of the trap!”

THE DEBTOR IN BANKRUPTCY:
Bankruptcy changes everything. This newsletter is not intended to be an exhaustive statement of the law but it is important to know a few big changes in the bankruptcy setting. First, in bankruptcy, the court may permit a creditor to side-step the charging order protections and levy directly against the LLC assets. LLC interests in bankruptcy are categorized as either “executory” – where the member must take some affirmative act to “earn” LLC distributions – or “”non-executory”—where an LLC member is not required to act to receive distributions, they are automatically given. In the bankruptcy setting, if a debtor’s interests in the LLC are “non-executory” then the court may have the power to penetrate the LLC to receive payment through the sale of assets or other measures, whereas the court will likely have no such power for “executory” interests. This issue was recently taken up in Arizona in the case In re Ehmann, 2005 WL 78921, Bkrtcy.D.Ariz. (Jan 13, 2005). Because this power depends in large part on the drafting of the LLC Operating Agreement, not only is it imperative to seek proper legal counsel, but more, one should seek out counsel who understands these complexities and can help design an operating agreement to help prevent these extreme results.

THE PAPERWORK:
This last above point bears emphasis. The adequacy of the unique “reverse-oriented” LLC formation paperwork is critical! This is where most lay owners and a large number of professionals make their most serious mistakes. First, a mere LLC Certificate from the state is not itself the LLC and does not complete an LLC formation! All LLCs must also have an “Operating Agreement.” Second, to obtain the protections of the LLC, whether inside or outside of court or bankruptcy, there MUST be a well-written, comprehensive LLC Operating Agreement in place well before any challenges take place! Third, the “form book” Operating Agreement used by 99% of the lay person, accounting offices and even the law firms out there do not contain the LLC, non-alienation, “poison-pill” and buy-sell clauses that give the benefits discussed here. Over the last 35 years, the Editor’s law office has completed a trainload of these protection plans. And it has also prosecuted or defended many claims against them and it is fair to say that in all of this work the most fatal banana peel in the road is a crack in the formation and operational paperwork. There is just no substitute for having lawyers experienced and competent in this complex field handle this kind of legal dynamite.

SINGLE MEMBER LLCs:
The primary purpose of charging order protection for LLC members is to protect innocent, non-debtor members from the “outside liabilities” of the others. Just like in a corporation, where a shareholder’s interest is far-removed from actual control of the entity (shareholders vote to elect board members who appoint officers who run the corporation), a properly structured LLC can insulate the actual ownership interests from entity control. Charging order protections are one shield against a creditor breaking down these walls between ownership and control – a creditor only gets the right to distributions and typically nothing more. When there are several owners, “friendly” “poison pills” and buy-sell clauses allow the shifting of an owner’s interest the moment it is attacked by a creditor.

But a long-held legal discussion now comes into focus – whether charging order protections designed to prevent innocent members from doing business with outside creditors makes any sense in the context of a single-member LLC (one that has only one member), where the debtor and no other innocent third-party bears the burden of dealing with its own creditors. Many have argued that charging order protections, including those in Arizona, nevertheless protect such debtors. Others disagree. However, after years of debate, a recent bankruptcy case, In re Albright, No. 01-11367 (Colo. Bkrpt. April 4, 2003), strongly indicates that single-member LLCs have a lot to fear. Albright held that single-member LLCs are not afforded charging order protection for the reason stated above – there is nobody who deserves protection if the only member is a debtor hiding behind an entity structure. No other member will suffer if the creditor takes control and liquidates but the one who has little or no reason to complain. In Albright, the creditor convinced the court to liquidate the entity, selling off assets to fund the bankruptcy estate.

None of the foregoing should cause the reader to believe single-member LLCs are worthless. On the contrary, they still provide a roadblock to creditors en route to the castle and still provide protection to the single member’s outside assets, if adequately capitalized and following applicable formalities, from, inside liabilities (say, for example, if our apartment complex LLC suffers a slip and fall case, the single member LLC might protect the member’s private residence from execution by the Plaintiff suing the LLC). And, charging order protection is still valuable, but it has a large and expanding chink in the armor.

DUAL OR MULTI-MEMBER LLCs:
Many of the Editor’s clients come to the law firm with single-member LLCs and want to bolster the protections afforded by them, typically after the invading horde is at the gates. This may be, but also may not be depending on circumstances, too late. Adding a new member to an LLC is not, by itself, a difficult task – though it does involve tax and other non-legal considerations that should be discussed with appropriate professionals. The true difficulty is whether the LLC deserves or will receive charging order protection when the new member is added after the existence of the debt, or perhaps even after the creditor obtains a charging order. Thus, best-practices would have those seeking to add members to existing single-member LLCs to undertake that protection as soon as possible and before it is too late. However, as noted above, there are many steps prior to a creditor obtaining a charging order and thus even if a debt exists, or a suit has been filed, it may not be too late to add a member to increase the likelihood charging order protections will apply to protect that new member from doing business with the outside creditor.

The larger number of individuals, businesses and investors who come to the Editor’s law firm, though, are multiple-member and thus the additional protective options of installing clauses for friendly cross-buy-outs and cross-poison pills to shave off creditor attacks remains viable.

Fortunately, in the majority of cases that come to the Editor’s law office from across the country (and in some cases out of it), no protection plan has yet been formed and that makes the process a “rubber ball” where most any entity formation in any jurisdiction is possible and a lot of good, more effective work can be done.

THE “BOTTOM LINE” FOR INVESTORS:
The above covers only some of the basic issues at play in using entities as a “reverse” protection. Though discussed in the somewhat catastrophic context of an owner-investor who is being hounded by determined creditors for comparatively large amounts, the use of entities and ownership or membership clauses to protect a business from outsiders is very commonplace and “mainline.” For example, many professional corporations, partnerships and LLCs routinely have clauses that eject and buy-out any investor or member who loses their license or is losing it or where a member retires or wants to sell out or is in a divorce in which the member’s interest is used to interfere with the entity, or a member who has a creditor chasing them, threatening to disrupt the business of the otherwise non-liable and innocent co-members and partners. These clauses in many cases simply assure that the rest of the business can liquidate and eliminate the problem in an orderly fashion and continue to conduct its business. Using them in all businesses and investment at the very formation—whether or not there is then an economic cloud in the horizon for anyone—should be a matter of standard practice.

STOPPING THE CREDITOR IS NOT THE END OF THE STORY:
Simply bringing the creditor to a stop through the above methods does not finish the story. With the creditor stopped, but still waiting in the shadows for a chance to attack at a vulnerable point, it is a little like sitting behind castle walls, with the creditor unable to get to the debtor, but the debtor also unable to leave the castle. The rest of the story is usually to continue to try to get a permanent solution by, for example, using these barriers as a lever to negotiate a better and more final solution to the whole debt, as a starting point, to taking an “outside” bankruptcy to wipe off or schedule-down or even cram-down the waiting debtor permanently while the assets sit inside the castle walls. That is another story you would want to take up with counsel. This discussion is only to alert one to the problems and recommend building the castle.

This for the most part resumes a discussion we have had before. We have discussed what steps a person might take to limit or eliminate liability from BOTH directions. This newsletter covers just a few of the methods that are in use and some of which we have started for you, focusing more on those that are relevant to you.

APPLICATION TO YOUR CLIENTS:
Most of the states are LLC or Corporation “charging order” states in which the “REVERSE ENTITY” approach will be effective and do recognize most or all of the above techniques as valid. Most protection plans work in most states.

PROVISOS, LIMITS AND CAUTIONS:
As one can guess, nothing is “absolutely fool proof,” including steps to at least attempt protection and for that reason no reputable lawyer will make predictions or guarantees about how these methods and steps and work done might play out in the future. Moreover, there are tax, investment, or inheritance ramifications of the steps taken and those, too, need always to be considered. Many courts, even those where the law allows these limits, do not favor a debtor escaping a liability in whole or part. For some judges and juries it just seems to “rub against the grain” in a way that sometimes causes them to make bad, anti-debtor decisions. There is a deeply-engrained psychological notion in the Judeo-Christian culture (which dominates the legal system in the United States) that “debts should be paid even if they are for rotten deals that will destroy the debtor, his business, his family.” So even where “everything is done right” there is risk that a judge, jury or other forum might still work hard at finding a way to challenge and in some cases penetrate a protective shield. The long and short of it is that though it is true that there are no guarantees from anyone that the legal system might not pound through the barriers if a claimant works at it hard enough and long enough, it is also true that “some kind of wall between chaos and the last asset is better than none.” These are some of the walls and there is a lot more to be said about them and related matters, but that is best left to conferences in the confines of your selected Asset Protection Planning lawyer’s office.

CONCLUSION:
Regrettably for all of us, it looks like the fiscal contamination of this gigantic economic mess is going to spread out much further and last far longer than politically admitted. Judging from what is coming from Washington D.C. (read “Darkness and Confusion”) the dousing of the rupture by billions more tax dollars dipped from the already-burdened sea of our future is the last desperate, fruitless plan to stub a crack in the power system that government refuses to understand or even to concede. Standing legally naked before this ongoing radioactive melt-down of society and doing nothing about it as a personal debt or liability festers and finally ruptures assures one’s ultimate financial death. Donning the “entity” radiation suits above means a “certain and horrible death” without the suit dilutes to the better “maybe we’ll die,” or to the far better “mere burns, but alive” and that is a far rosier financial prognoses than the government is going to deliver us at any time in the foreseeable future. Are your clients using any of these protections? Have they consulted a professional competent and experienced in this highly-technical areas to install these firewalls in present and future investments and portfolio work? Have you advised your clients of these new protections? Do so now by sending them this article! CLIENTS: Your agent or counselor has done you a great favor by sending this to you: READ IT (and buy them a 5-star lunch)! (And while you are at it my friends, have you protected…..yourself?!) ‘Nuff said


ABOUT THE AUTHOR:

J. Robert Eckley is a multi-state attorney, successful litigator, portfolio planner, tax and investment strategist popular writer, educator and national speaker with an immense personal and professional involvement in forefront issues over the past three decades. He has prosecuted and defended both debtors and creditors throughout the crash of the 1980s and currently.  He has established precedent at the Supreme Court and co-founded transactional laws, rules and forms in many states that guide practitioners today. He has received leadership awards and honors from U.S. President Reagan and Arizona State Governor and now U.S. Secretary of Homeland Security, Hon. Janet Napolitano, among many others. His practice serves every aspect required by domestic or foreign business, investment and private clientele. Often as entertaining as he is practical and enlightening! See more at eckleylaw.com   You can reach Mr. Eckley at (602) 952-1177 or by going to his website at eckleylaw.com.  If you want to remain on the “broadcast hotline” for future supplements and news of future presentations, write to education@eckleylaw.com and ask.