WHAT WOULD HAPPEN IF YOU MADE ONE SMALL MISTAKE AND IT COST YOU EVERYTHING?
Have you ever pondered any of these questions?
- What would I do if I was sued?
- Am I taking all of the tax deductions and using all of the strategies I'm legally eligible for?
- How am I going to create enough for retirement?
There are three primary areas to protecting your assets you need to know and at least two minor areas for complete and total protection that will make you a winner in the game of wealth preservation. Your wealth can only grow when there are no adverse obstacles.
3 PILLARS OF ASSET PROTECTION
- Protect your Assets from lawsuits.
- Protect your Income from overpaying taxes.
- Protect your retirement funds from market risk and yo-yo results.
Over the past 2 decades we are proud to have saved over $200,000,000 for our clients who without our help and guidance could have lost almost everything as many courts see themselves as an instrument of wealth transfer.
If you own a business or other substantial assets it carries the responsibility of examining methods to safeguard them from others who would seek to transfer it from you to themselves and use the courts as an tool of that wealth transfer.
Asset Protection Statistics
Among the 26,948 civil trials concluded in a national sample of state trial courts in 2005:
- In 2005 plaintiffs won in more than half (56%) of all general civil trials concluded in state courts. Among all plaintiff winners the median final award was $28,000. Approximately 4% of all plaintiff winners won $1,000,000 or more. Contract cases in general had higher median awards ($35,000) than tort cases ($24,000).
- In the nation's 75 most populous counties, some tort case categories have seen marked increases in their median jury awards. This was particularly the case for product liability trials, where the median awards were about 5 times higher in 2005 than in 1992 and for medical malpractice trials, where the median jury awards more than doubled from $280,000 in 1992 to $682,000 in 2005.
2014 California Civil filing statistics
Civil Cases. Civil filings totaled 922,458 and civil dispositions totaled 937,264, with a caseload clearance rate of 102% attained over all civil case types in this fiscal year.
- UNLIMITED: Civil unlimited filings totaled 199,537 cases, while civil unlimited dispositions numbered 190,147.
- Method of disposition for civil unlimited cases: 150,280 cases disposed of before trial and 39,858 after trial.
- Caseload clearance rate for civil unlimited cases: 95%.
- Case processing time for civil unlimited cases was 67% within 12 months, 81% in 18 months, and 87% in 24 months.
- LIMITED: Civil limited filings totaled 554,858 cases, while civil limited dispositions numbered 568,148.
- Method of disposition for civil limited trials: 524,434 cases were disposed of before trial and 43,714 after trial.
- The caseload clearance rate for civil limited cases was 102%.
- Case processing time for civil limited was as follows: 87% in 12 months, 94% in 18 months, and 96% in 24 months.
"2013 Medical Malpractice Payout Analysis," which is based on data from the National Practitioner Data Bank. Figures reflect medical malpractice payouts and statistics for 2012.
Medical malpractice payouts
1. Dollars in payouts: $3.6 billion (3.4 percent less than in 2011)
2. Total payouts for medical malpractice: 12,142 (one every 43 minutes)
3. Payouts resulting from judgments: 5 percent
4. Payouts resulting from settlements: 93 percent
Payouts by patient type
5. Inpatient: 45 percent
6. Outpatient: 41 percent
7. Both: 9 percent
Top five states for medical malpractice payouts
8. New York: $763,088,250
9. Pennsylvania: $316,167,500
10. California: $222,926,200
11. New Jersey: $206,668,250
12. Florida: $203,671,100
If you're going to be in business a wise decision starts with considering how do I stay in business? You want to avert distractions like a lawsuit that will suck the life out of your personally, emotionally and if you lose it could expose both the business and your personal assets to fulfill the judgment.
Many business owners have not had their shareholder agreements or operating agreements for their limited liability company (LLC) reviewed to avoid liabilities.
We had one case where the client's did their incorporation online and got a stock LLC operating agreement that just lead to huge headaches and eventually litigation because it was incomplete and not properly structured. In most cases it is a better idea to use a manager managed LLC structure placing the majority of the decisions in the hands of the manager.
“In the interests of justice, in an ‘appropriate case,' a party wronged by actions taken by an owner shielded by the veil of a corporate shell may exercise its equitable right to pierce that screen and ‘skewer' the corporate owner. “David v. Mast, 1999 WL 135244 (Del. Ch. Mar. 2, 1999).
Also many business owners have a misplaced belief that the corporate structure will save their bacon from seeking their personal assets. In business law however, the alter ego doctrine is often used as justification for piercing the corporate veil and assigning personal liability upon a business owner. This happens when a judge finds that there is not sufficient separation between the owner and the business entity. If you're a small business they are going to find some self-dipping or paying for something of a personal nature. Remember, all bank statements etc. would be under scrutiny and a forensic account will reveal some self-dealing (personal use of funds).
With an LLC it is even easier as the opponent does not need to use the fact internal formalities were not followed since LLCs are not required to do much.
Each person or business presents its unique circumstances and assets at risk. For this purpose we don't waste time listing strategies but only urge folks to contact us for a private conversation to go over their particular circumstances as this type of planning is customized.
This is perhaps the biggest flaw a lot of people make who are served a lawsuit. Instead of pre-planning or getting some legal advice they start moving assets out of their name to a spouse or another family member – WRONG!! This is going to be unwound and can carry penalties both civil and criminal – yes even criminal.
“Every person who is a party to any fraudulent conveyance of any lands, tenements, or hereditaments, goods or chattels, or any right or interest issuing out of the same, or to any bond, suit, judgment, or execution, contract or conveyance, had, made, or contrived with intent to deceive and defraud others, or to defeat, hinder, or delay creditors or others of their just debts, damages, or demands; or who, being a party as aforesaid, at any time wittingly and willingly puts in, uses, avows, maintains, justifies, or defends the same, or any of them, as true, and done, had, or made in good faith, or upon good consideration, or aliens, assigns, or sells any of the lands, tenements, hereditaments, goods, chattels, or other things before mentioned, to him or them conveyed as aforesaid, or any part thereof, is guilty of a misdemeanor.”
You see way back in 1571, Parliament enacted a statute to prohibit transfers intended to defraud creditors or impede their collection efforts. This statute, known as the Statute of 13 Elizabeth. It was passed in response to the widespread use of fraudulent transactions to defeat creditors. Until the 1600s, England had numerous sanctuaries not subject to the King's writ. These sanctuaries included churches but also certain areas defined by custom or royal grant. Debtors would often sell their property to friends or family at unreasonably low prices with the promise of buying it back later, move to a sanctuary, and then wait for creditors to exhaust their efforts or offer a favorable settlement.
Modernly all states have adopted their own fraudulent conveyance statute to contend with debtors who seek to frustrate their creditors and escape their financial responsibility. Suffice to say if you want to preserve and protect your assets you must have a proper structure in place that does not violate the law and there are ways to accomplish this but it is always better to have a plan in place before the storm than to try and batten down the hatches in the midst of a tumultuous financial storm.
Who is most vulnerable to an Attack?
- High net worth individuals
- Real estate owners with equity
- Business owners
- Professionals with practices
Here are just a couple of bizarre cases:
- A bar is sued by a man who illegally carried a gun into that bar after he was injured in a fight. The lawsuit was filed by the man because the bar did not search him for a weapon.
- A mother is sued by her adult children because she sent cards that did not include gifts and because she allegedly plays favorites.
- A woman files a lawsuit asking for $5 million after she disagrees with a store over an 80 cent refund she was supposed to receive.
- A mother files a lawsuit against an exclusive preschool because of her child's college prospects.
- A man who filed a lawsuit that claims age discrimination also said that the judge presiding over his case is too old to hear the case.
- An obese man files a lawsuit against a burger business because the booths in the establishment are too tight to squeeze into.
- A woman files a lawsuit because of a movie trailer that does not have enough driving in it. The trailer was for the movie ‘Drive.'
- A lawsuit filed by a cruise ship passenger claims that the ship was moving too fast, causing it to sway from side to side.
- Chuck E. Cheese is sued by a mother who claims that the games in the establishment encourage the children there to gamble.
- Cyclist sues Soulcycle for too intense of a workout: Soulcycle is expensive and trendy, and its cult followers love it because of its intensity. Well, everyone except for Carmen Farias. Farais sued the cycling class chain because she said she suffered an injury during class. In her lawsuit, she said “the lack of instruction, design of the bike, volume of the music and darkness of the room” resulted in gross negligence, even though ironically those are some of the reasons its members pay almost $30/hr to attend a class. Before the course, all users are required to sign a release form, but Farias said hers was invalid because they did not provide her with a copy. Sounds like she's just spinning her wheels.
- Woman wins $161,000 after walking into a ladder. We see it everywhere. People glued to their cell phones, whether they're out to dinner, at work, or exercising. But for one woman, walking while texting proved to be a lucrative act. DeToya Moody was texting when she walked into a ladder, which was in a blocked off construction zone. Her accident caused her to be taken away to the hospital, and she suffered injuries. She sued the construction company, and even with surveillance video proving she wasn't paying attention, a jury awarded her $161,000.
 California Code, Penal Code - PEN § 531 < https://codes.findlaw.com/ca/penal-code/pen-sect-531.html>
 Baird, Douglas; Thomas, Jackson (1985). "Fraudulent Conveyance Law and Its Proper Domain". Vanderbilt Law Review. 38 (829). Retrieved 10 August 2017.