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Mark Gilmer, Esq.

Saturday, August 17, 2013

ACS cases and the removal of children under Article 10 of the Family Court Act

I am a  New York City ACS Attorney that defends the rights of parents in New York City that have been accused of Abuse or Neglect by the Administration of Children’s Services (hereinafter referred as ACS). I have done so over the past ten years. I represent people in ACS Administrative proceedings (where court is not involved) and in Court. I am a privately retained counsel. This article describes the process in which a child can temporarily be removed from their home pursuant to Article 10 of the Family Court Act. If you are currently being investigated by ACS and if you believe that there is a possibility that ACS will remove your child from your home, give me a call immediately, 24 hours a day, at 718 864 2011.


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Wednesday, August 14, 2013

The Blended Families and Divorce Agreement Quandary

The Law Office if George M. Gilmer, Esq. has been providing low cost Divorce solutions for his Clients for over ten years.  His $399 divorce special (now Mr. Gilmer charges $499) has often been imitated but never duplciated. Give Mr. Gilmer a call if you have any questions about his services. 


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Tuesday, October 30, 2012

How do I get my bank account released after it has been frozen by a creditor? 718 864 2011 By Brooklyn, New York City Credit Repair Attorney

My name is George M. Gilmer, Esq. and I have my Law Office at 26 Court Street, Brooklyn. Is your bank account currently frozen?  Do you have a legal judgment against you by default?  Are your wages  being garnished?  Do you want to legally and legitimately  clean your credit  (known as “credit repair) because of an improperly obtained judgment? I am a Brooklyn Credit Repair Lawyer.  My office is a Debt Relief Agency under Federal Law.


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Wednesday, November 16, 2011

Same sex marriage equality and Defense of Marriage, Matrimonial Attorney, Brooklyn, NY

I am a Brooklyn, New York City Matrimonial Lawyer.  1-718-864-2011.  A number of my  LGBT clients currently in  same sex relationships ask me this question, now that I can get married in New York, will I have equal protection under the law?


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Monday, October 31, 2011

How do I get an uncontested Divorce? Brooklyn, New York City Uncontested Divorce Attorney. Low Fees. No Fault. .1-718-864-2011

I am a Brooklyn, New York City based lawyer that provides low cost divorce solutions for those who are ellgible to file for divorce in New York State.  My low fee from $499 plus filing fees for an uncontested no fault divorce is one of the lowest rates in the legal community. This is the true cheap fast divorce!  Please contact me at 718 864 2011.


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Wednesday, October 26, 2011

Can I relocate with my children? Brooklyn Family Court Attorney and Matrimonial Lawyer. 1-718-864-2011

As a Custodial Parent can I relocate with my children out of state?

Imagine this scenario.  You are living with your child, have very poor economic circumstances and are offered a job out of state. The parent of your child(ren) is a good one, he or she visits with them quite frequently and plays a big role.  You want to move because of the opportunity that is offered to you and your family.  What will the court do?

In  Tropea v. Tropea, a New York decision, the Court decided that five factors must be determined before a person is granted that ability to relocate with their child. 

REASON FOR THE MOVE

The Court will first look at the parent’s reasons for seeking the move. Let’s assume here that you have hired a  lawyer. Your lawyer will argue that you have a new job and thus the move is necessary.   The non-custodial parent’s lawyer will question whether the type of job (i.e. pay scale)  you are moving to is one that cannot be obtained here in New York. 

QUALITY OF RELATIONSHIP BETWEEN   CUSTODIAL AND  NON CUSTODIAL PARENTS

Secondly the court will consider the quality of the relationship between the custodial and the non custodial parents.  If there is a poor relationship between the parents and it appears that the custodial parent would not make an effort to maintain the relationship between the child (or  alienate the child) and the non custodial parent after relocation, then the family court might may not allow the  relocation.  The attorney representing the non custodial parent would argue that the move would harm the child(ren) because parenting time with the child and the non custodial parent will decrease and in the custodial parent will not make best efforts to maintain your relationship with the child because of this poor relationship.

IMPACT THE MOVE WILL HAVE ON THE QUANTITYAND QUALITY OF FUTURE VISITS

 Thirdly, the court would look at the impact of the move on the quantity and quality if the child’s future visits with the non custodial parent. Here the custodial parent’s attorney might advise his or her client to offer to the non custodial father expansive visitation rights during times (this mainly involves school age children) that the child is on vacation, i.e. winter, spring and summer breaks. The attorney for the non custodial parent might say that this type of arrangement might be harmful to the child because the visits need to be more frequent and consistent.  I think that the court would agree with this opinion. 

DEGREE TO WHICH THE CUSTODIAL PARENT’S AND CHILD’S LIFE WILL BE ENHANCED

Fourthly the court is also required to look at the degree to which the custodial parent’s and child’s life will be enhanced, economically, emotionally and educationally by the move.  Here, let’s assume that there was  domestic violence in the home that the custodial parent and the child witnessed, perpetrated by the non custodial parent, that the job would give the custodial parent a significant pay increase and that the family is moving to a better school district.  Here the custodial parent’s attorney would argue that the move is justified because economically the family benefits from the pay increase, emotionally because they are away from an abusive household and educationally because they live in a better school district.

FEASIBILITY OF PRESERVING THE RELATIONSHIP

Finally the fifth and final factor is the feasibility of preserving the relationship between the custodial and non custodial parent and child through suitable visitation arrangements.  Here let’s assume that the custodial parent moved wants to move from New York to   Hawaii. Let’s also assume that the non- custodial parent works a minimum wage job and could hardly afford rent let alone plane tickets to Hawaii. Here, the non custodial parent’s attorney would agree that visitation between the child and he or she would be virtually impossible and thus it is very unfeasible that any suitable visitation arrangements can be made.

ROLE OF THE  ATTORNEY FOR THE CHILD

The attorney for the child represents the child and thus weighs in with the child’s opinion concerning the move. It is the attorney for the child’s job to consult and advise the child consistent with the child’s capacities and have thorough knowledge of the child’s circumstances. If child is able to be a knowing, voluntary and considered decision about relocation,  then child’s lawyer is supposed to advocate for this position even if she does not agree with the child.  If the child can’t make such a decision then the child’s lawyer can argue a position he or she believes is in the best interest of the child.

 

One final note. Relocation is a very complicated issue and courts do not look kindly on parents that just pick up and leave without either getting the other parent’s permission or court permission.

 

 If you have any further questions about relocation, please contact me, George M. Gilmer, Esq. a Brooklyn, New York City Family Court attorney.


Friday, October 21, 2011

How do I win my Custody Trial? By Brooklyn, New York City Family Court Lawyer

Many clients want to know how they can "win" their Family Court case.  I often tell my clients that there are often on clear winners in these papers.  Abraham Lincoln said "discsourage litigation, persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has a superior opportunity of being a good man.  There will still be business enough."

I am a firm believer that most cases can be settled so long as both sides have competant represenation that is familar with all of the issues involved in the case. Don't get me wrong, some case must go to trial, but I always encourage my clients to hear the other parent's fully before making a decision.

Some people are of the position that custody proceedings are corrosive to parents and toxic for chidren and that a custody case should not be tried.


Tuesday, October 18, 2011

Should I file for bankruptcy on a deficiency judgment? By Brooklyn Bankruptcy Attorney. 1-718-864-2011

Should I file for bankruptcy if my house was foreclosed on and there is a deficiency judgment against me in New York City? 1-718-864-2011

The answer to this question is maybe. The bank, even after a foreclosure sale occurs in New York State has to go through a certain procedure before obtaining a deficiency judgment against you.  Thus it might be wise to wait it out and see if the bank is actually going to pursue the money owed to it after your home was sold.

If you were unable to pay your mortgage due to job loss, Wall Street fluctuations or rise in interest rates and a foreclosure action takes away your home then the bank may be able collect on a deficiency judgment against you.

deficiency judgment is a money judgment against a borrower whose home at a mortgage foreclosure sale did not sell for enough to pay the underlying loan on the property. Thus if the total amount due on your mortgage is $300,000 but your house only sells for $150,000 then a lender can seek a judgment against you for $150,000.

To reiterate a Defendant in a foreclosure action, if found to be liable for payment on a debt secured by a mortgage, and this Defendant has appeared and be personally served with the Summons, the Court has the ability to enter a  Judgment against this defendant on the debt remaining unsatisfied after a sale of the mortgaged property.

After the sale, the lender, within 90 days of the sale must make a motion to confirm the sale and simultaneously, after   Notice of Motion is given to the purchaser or his or her attorney, may also make a motion in the action for leave to confirm a deficiency judgment.  When this motion is heard, the court will determine the deficiency judgment amount by ascertaining the  fair market value of the property and deducting the total mortgage amount owed plus the amount owing on all prior liens and encumbrances with interest, plus costs and  disbursements  of  the  action  including  the  referee's  fee and disbursements. If no motion for deficiency judgment is made in the above referenced time period, then the lender will be prevented from collecting on the judgment.

 

Furthermore there is a difference between a deficiency judgment and a short sale. A short sale occurs when the lender, after negotiation between the lender and the property owner, takes the property back from the property owner as full payment of the loan.  Thus the loan is wiped out.  In some cases the owner may get an additional cash payment from the bank as an incentive to close the deal.

If the lender has followed proper procdeduresand haqs obtained a deficiency judgment then it would be a good idea to file for a bankruptcy. If you file for bankruptcy the bank, unless the bank has a legal basis for objecting to the discharge and you do not have any assets in the property of the bankruptcy estate, wlll not be able to collect on the debt.  A Chapter 7 bankruptcy will wipe out all of this debt and sihce the property has been sold, the debt is unsecured.

Please see my previous blogs on bankruptcy filings for more information.

If you have any further questions about deficiency judgments, bankruptcies or short sales, please contact me, George M. Gilmer, Esq., your Brooklyn, New York City Bankruptcy Lawyer for a free phone consultation.

 


Friday, July 1, 2011

New York passes Same Sex Marriage Equality Act of 2011. By Brooklyn, New York LGBT Family Law and Matrimonial Attorney.

On June 24, 2011 Governor Andrew Cuomo signed into law the right of same sex couples to get marriage licenses. The law will go into effect on July 24, 2011. New York will be the sixth and the most populous state (19.4 million residents) to do so. Iowa, Vermont, New Hampshire, Massachusetts and Connecticut issue marriage licenses to same-sex couples, as does the District of Columbia.

Many believe that the passing of the law gives momentum to ending marriage discrimination at the state and federal level. Prior to the passing of the law most New York City employers already offered equal benefits to couples in domestic partnerships. Many see the federal recognition of same sex marriage as an uphill battle. Matter of fact in 2006, the New York Court of Appeals ruled that there is no constitutional right to same-sex marriage in New York. Some opponents of same sex marriage support a U.S. constitutional amendment defining marriage as between a man and a woman.  Matter of fact, gay marriage is banned in 39 states in this country.

Another complicated legal issue is the legal rights New York same sex couples are afforded in states that do not recognize same sex marriage. Two constitutional principles arise, full faith and credit and equal protection. The Full Faith and Credit Clause—Article IV, Section 1, of the U.S. Constitution—provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United States.Although the Full Faith and Credit Clause has been applied to family issues such as Order of Protection, the Violence Against Woman’s Act, and child support it is unlikely, unless the Supreme Court strikes down all laws banning gay marriage, that States are going to be required under Full Faith and Credit to recognize any marriage they don’t want to.  Presumably states that don’t recognize gay marriage will be expected to recognize gay marriage pursuant to the equal protection clause.

It is clear that most of the opponents of gay marriage based this opposition upon moral or religious grounds. As a way to balance the various interests involved, an agreement was reached on more protections for religious groups that oppose gay marriage and fear discrimination lawsuits.

The Law Office of George M. Gilmer drafts prenuptial agreements (“prenup”), cohabitation agreements and practices matrimonial law. Please stay tuned for future articles in these areas.  I have over ten years of legal experience.  Contact me if you have any other questions concerning same sex marriage.


Friday, June 24, 2011

Frequently Asked Bankruptcy Questions by Brooklyn, New York Bankruptcy Lawyer

My name is George M. Gilmer, Esq. I am a Brooklyn Bankruptcy and Debt Relief Lawyer.  For you perusal,  I am posting some Frequently Asked Questions regarding Bankruptrcy filings. 

BANKRUPTCY QUESTIONS:

1.         What is Bankruptcy?

Bankruptcy is the legally declared inability of a debtor (person/company that owes money) to pay their creditors (person/companies that lend money).

In the United States, there are 6 types of Bankruptcy under the Bankruptcy Code (covered under Title 11 of the United States Code), however the most common 3 forms of bankruptcy are Chapters 7, 11, and 13.  They are as described follows:

Chapter 7 -  Basic Liquidation for Individuals and Businesses.  Also known as straight bankruptcy, this is the most common, quickest and most straight forward form of Bankruptcy.  Allows for individuals or businesses to eliminate their debts while allowing them to keep certain exempt property.  The amount of the exempt property varies from state to state.

Chapter 11 -  Rehabitation  or Reorganization.  Also known as a Corporate Bankruptcy, this type of Bankruptcy is used primarily for businesses, but can also be used for individuals with substantially large debt.   This type of Bankruptcy allows for a business to continue to operate while paying down their debts according to a structured payment plan.

Chapter 13 – Rehabiliation for Individuals with regular income.  Structures a payment plan to eliminate and/or pay down part of, or all of the individual’s debts.  This is also known as Wage Earner Bankruptcy.  

3.     What is the difference between Bankruptcy and Debt Consolidation?

Debt consolidation is a Bankruptcy Alternative much different from bankruptcy.  Debt consolidation is where an individual or a business takes out one loan to pay off many others.  This loan usually entails assigning collateral (something of value) against the loan, usually a home or other high valued item.  Because the value of the home is given against the loan, there is less risk for the loaning bank which makes the interest rate and/or terms of the loan more favorable for the debtor. 

Bankruptcy is where a court determines that a person or business is legally unable to pay for a debt or debts, and thus the debts are discharged, or written off completely.

Some companies offer services in Debt Consolidation where they negotiate with your creditors to lower interest rates, payments, and/or balances of your debts and combine them into one payment.   This method of consolidation is done without having to be approved for a loan, but rarely offer any type of guarantee as to how much they can lower the balances or interest rates.

 

4.   How does Bankruptcy affect my credit score?

 

A Chapter 7 Bankruptcy remains on an individual’s credit report for 10 full years (from the date the bankruptcy is filed).   The bankruptcy can make credit harder to come by and cause loan or credit card terms less favorable, however, high debt to income ratio listed on the credit report and/or debts that have been sent to collections or “charged off” can have the same effect.   Some people have even experienced their credit score to be unaffected or helped by declaring bankruptcy since their debt is fully or heavily relieved.

 

5.  Can I keep my vehicle if I file for Bankruptcy?

 

With few exceptions, most people who qualify for Bankruptcy are able to keep their vehicles, provided they keep up with the payments of the original contract of the loan.  Bankruptcy filers do have the option of surrendering their vehicles, eliminating their obligation to pay for it.

The exception(s) to this is when filers have non-exempt equity in the car(s).  If the vehicle(s) are worth a lot of money, and there is little or no money owed on the vehicle(s), the Bankruptcy trustee could take their value into account.  Speak to an attorney about your situation, and they should be able to provide you with a good idea of whether or not you will be likely to keep your car. 

 

6.     Can I keep my home, condo, or co-op if I file for Bankruptcy?

Again, as with the car issue, with few exceptions,if the equity in the home is exempt, and you keep the payments up according to the terms of the original mortgage(s), you should be able to keep the house.

If you do have substantial equity in the home, but are unable to obtain a debt consolidation loan, you should discuss with your attorney about filing for Chapter 13, instead of Chapter 7.

7.     I’ve already declared bankruptcy;  Can I file again?   How many times can I declare Bankruptcy?

Short answer – Yes.   The U.S. Bankruptcy Code does not specify a maximum number of times one can file bankruptcy, but Courts will scrutinize multiple filings and will deny a person the ability to re-file a case if the Court believes the person's multiple filings constitute an abuse of the Bankruptcy Code. One example is, if a person files multiple cases because they have a medical condition and can't get insurance and medical bills keep piling up, the Court has the option to allow multiple filings. On the other hand, if one keeps voluntarily charging up credit card, getting loans or other unsecured debt and tries to come back to Court to discharge them, the Court has the option to deny the filing.  Speak to an attorney and they can usually give you a good idea as to whether the Bankruptcy trustee would be likely to allow another filing.

8.       Will I lose my tax refund if I file for Bankruptcy?

Keeping tax refunds depends on a substantially large number of factors, including:  when you filed, if you filed with a spouse, how much the tax refund is, whether you’ve taken exemptions such house, cash or car exemptions, and many more.   In many instances, Bankruptcy filers can keep all or a portion of their tax refund.  Discuss this with your attorney and they can give you a general idea of what you would be entitled to.

 

9.    How long will my Bankruptcy case take to complete?

Chaptery 7 Bankruptcies take approximately 3-6 months depending on the complexity of the case and the backlog of cases in the Bankruptcy court, from the date of filing.  Prior to filing there is case preparation time, which will depend heavily on how fast the attorney can prepare the necessary documents, and how soon the debtor can get the necessary paperwork requested by the attorney to him or her.  

To expedite your case, make sure you have the necessary documentation ready for your attorney, including but not limited to:  3 years of tax refunds, recent paystubs, bills – credit card, utility, rent/mortgage, insurance, etc.; recent credit report from all 3 credit bureaus, loan paperwork, etc.   Talk to your attorney to get advice as to what documents you should bring with you to speed the process along.

10.      Which one should I do – Debt Consolidation or Bankruptcy?

Whether you should file for bankruptcy or try one of the many methods of debt consolidation is definitely something you should obtain the advice of an attorney to decide.   The decision will count on many factors, including how much debt you have, your assets, whether or not you can afford the terms of debt consolidation, your employment, your credit status, and much more.  Discuss all these elements of your situation with your attorney and come up with the best course of action for your specific situation.

 

11.       Will I be able to get a loan if I file for Bankruptcy?

Yes you can.  Many companies offer recently bankrupt persons car loans, personal loans, and home loans.  The terms and conditions of these loans are not always as great as the terms for persons with good credit, but obtaining a loan is possible.  You may find you will receive many offers after declaring bankruptcy from companies with offers for loans and/or lines of credit.  As always, the best way to raise the chances of obtaining a loan is to keep payments for your secured car or house loans current and/or have established payment history.

NOTE:  Before applying for a loan, always check your credit report.  Be proactive in removing and/or disputing items on your credit report that are paid off, discharged in bankruptcy, or for any reason no longer your debts.   Removing these items will help raise your credit score which is the primary item banks and loan companies look for when you apply for a loan.

12. .  Will I be able to get credit cards if I file for Bankruptcy?

Yes you can.  Many companies offer recently bankrupt persons both unsecured and secured credit cards.  The terms and conditions of these cards are not always as great as the terms for persons with good credit, but obtaining a credit card is possible, and is one of the best steps to rebuilding your credit.  You may find you will receive many offers after declaring bankruptcy from companies with offers for credit cards and/or lines of credit. 

NOTE:  Before applying for a credit card, always check your credit report.  Be proactive in removing and/or disputing items on your credit report that are paid off, discharged in bankruptcy, or for any reason no longer your debts.   Removing these items will help raise your credit score which is the primary item banks and loan companies look for when you apply for a loan.

 

13.    How will my employment be affected if I file for Bankruptcy?

 Employers, are prohibited (federal law) from firing any employee upon learning that they have filed bankruptcy. If your employer recently learned that you declared bankruptcy and subsequently fired you from your job, you may have a bankruptcy discrimination case.    Most employers never find out about their employees’ bankruptcies unless, as part of a Chapter 13, the payments to the Bankruptcy Trustee come directly out of their paycheck. 

If a private company pulls your credit report, and sees you have declared bankruptcy, they may (and can legally) deny you a job.  Local, State and Federal jobs are prohibited from denying someone a job on the basis of Bankruptcy, and even private sector employers are prohibited from denying any promotion on the basis of Bankruptcy.  Many companies can deny security clearance to people who owe a lot of money. 

 

14.         How much does it cost to file for bankruptcy?

As with any legal issue, cost of representation depends on a variety of factors.  In Bankruptcy cases, it may depend on the amount of debt, the complexity of the financial situation, whether there are home and car(s) to fight for, student loans, judgments to vacate, how long and how much work it takes to get necessary documentation, and much more.

15.     Why do some attorneys charge more than others? What should I look for?

Attorneys fees can vary substantially.  Again, depending on many factors.  Main factors that justify charging more are:  Experience (years in the business), type of case, whether they charge by the hour or have flat fees, how many employees will work on your case, etc.   However, it should be noted, that simply charging less doesn’t necessarily mean your attorney is inexperienced or doesn’t have many people working on your case.  Many attorneys try to make up for charging less than the standard, by dealing in volume, and vice versa. Find out their experience level, how many cases they’ve closed, what they charge, how many people work on your case, and how long things will take.  A good attorney will always answer these questions straightforwardly.  Consumer Reports states that finding a lawyer via television/radio ads is not a good way to find an attorney, and they usually cost more.  The cost of those advertising campaigns is large, and that usually translates to more cost for the client.  Also, many of those “800 number” law firms divide their cases up amongst members of the firm, so you don’t get the personal service many sole-practitioners can provide.


Sunday, June 19, 2011

What can I do if I am a victim of identity theft? By Brooklyn Debt Relief Attorney.

Identity theft is the fraudulent use of another person’s identity generally to gain access to credit, assets or other benefits under that person’s name. The person suffering from identity theft can suffer many adverse consequences.

There are a number of different types of identity theft. 

  • Criminal identity theft (posing as another person when apprehended for a crime)
  • Financial identity theft (using another's identity to obtain credit, goods and services)
  • Identity cloning (using another's information to assume his or her identity in daily life)
  • Medical identity theft (using another's identity to obtain medical care or drugs)
  • Child identity theft

This article will focus on the steps one should take for financial identity theft.

What are the steps I should take if I'm a victim of identity theft?

If you are a victim of identity theft the first step you should do is put a fraud alert on all of your credit reports and frequently review your credit to make sure no new accounts are opened in your name.  There are three credit reporting companies but you need only to call one to have the alert placed.

If you discover that accounts were improperly opened in your name, you need to immediately close these accounts and notify the fraud departments of each company where the fraud occurred. You will have to dispute the transactions.  I strongly advise you to notify all companies in writing by certified mail. If fraud has been done on existing accounts, then the fraud department will most likely have you fill out a fraud affidavit where you will state under the penalty of perjury that you were not the one that made the transactions. I also strongly advise you to fill out a police report, as it adds additional corroboration to your claim of fraud.

There are two types of fraud alerts, an initial alert and an extended alert.  An initial alert stays on your credit report for 90 days and potential creditors must use “reasonable policies and procedures” to verify your identity prior to issuing credit in your name. Once you place an initial fraud alert you are entitled to one free credit report from each of the three consumer reporting companies.

You are entitled to a seven year fraud alert or extended fraud alert if you present the reporting agency with an identity theft report. Here a potential creditor must actually contact you or meet you in person prior to issuing you credit.  You also are entitled to two free credit reports within twelve months from each other from each of the three credit reporting agencies. A fraud alert will not protect you from identity theft on existing accounts; it only helps prevent the opening of new accounts in your name.

 

What’s the difference between a credit freeze and a fraud alert?

A credit freeze will limit access to your credit report by anyone unless you have a relationship with the company.  An example of a “relationship” is your relationship with your current credit card or Mortgage Company.

If you have any other questions concerning identity theft, please contact me, George M. Gilmer, Esq., a Brooklyn Debt Relief attorney for further details. 


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