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The Rossback Law Firm

Bankruptcy, Guardianship, Probate, and Adoption Attorney

questions about bankruptcy

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What is the difference between a Chapter 7 bankruptcy and a Chapter 13 bankruptcy?

To put it simply, a chapter 7 bankruptcy is a liquidation style bankruptcy where a court appointed bankruptcy trustee sells your non-exmept property to pay your creditors.   Most individuals that I have assisted in chapter 7 bankruptcy did not have any of their property sold because they are entitled to claim exemptions on all of their property.  In most cases, the allowed exemptions are sufficient to cover all of an  individual's proprety, and that person's exempt property is protected from the trustee.   A chapter 7 bankruptcy is normally complete between 90 and 120 days from the date you file the bankruptcy petition. 


In a chpater 13 bankruptcy you will make payments to your bankruptcy trustee for between 3 and 5 years.   However, if you are employed the plan payments will be taken directly from your wages in accordance with your chapter 13 plan.  If you are self-employed, you will be required to remit your payment at least once per month to the trustee.  If you are eligable for a chapter 13 bankruptcy discharge, it normally will come after you have made your last plan payment. 

How much do you charge for a bankruptcy?

I cannot quote what I charge for a bankruptcy on a general knowledge website.  My fees for a bankruptcy are customized to each individual case.  I will give you some standardized costs charged in connection with a bankruptcy.  First of all, if you want to file a bankruptcy, the bankruptcy court will charge a filing fee of $335 for a chapter 7 banrkuptcy and $310 for a chapter 13 bankruptcy.  In addition to attorney's fees ,and filing fees, you will also pay to take  two online classes in conncection with your bankruptcy.  You need to take the first class within 180 days before you file your case, and you need to take the 2nd class after you have filed your case but before your case concludes. The fees for these class have ranged from $9.95 to $50,  depending on what the particular course provider charges for their materials. 

If I have already filed a bankruptcy, can I file another bankruptcy?

Yes, you can another bankruptcy if you have previously filed for bankruptcy in most cases.  In a few situations, a bankruptcy judge or the Bankruptcy code will not allow you to file another bankruptcy.  Just because you can file bankruptcy again, doesn't mean that you should.  Too many bankruptcies filed too close together can cause your bankruptcy protection to be limited and/or lost, and this can cause you to loose property to your creditors.  If you have filed bankruptcy before, and think you may need to re-file, then feel free to contact us and schedule your free consultation today. 

Can I remove a mortgage from my house with bankruptcy?

Yes and no.  If you are talking about your first mortgage, then no, you cannot remove your first mortgage from you house  in any chapter of bankruptcy.  If you are talking about a 2nd mortgage or a HELOC (Home Equity Line of Credit) then you can remove a mortgage from your home in a chapter 13 bankruptcy but not a chapter 7 bankruptcy.  Now in a chapter 13 bankruptcy you can only remove the mortgage if your home is worth less than what you owe on your first mortgage.  Proving this in a court is easier said than done.  If you believe you may qualify to remove a junior mortgage lein from your home, please contact us and schedule your free consultation today. 

How do I clean up my credit report after bankruptcy?

After you finish your bankruptcy, the credit reporting bureaus will not automatically take the discharged debt off of your credit reports.  You should be sure send each of the credit reporting bureaus a copy of your bankruptcy list of creditors (Schedules D, E/F), and a copy of your discharge order (which the court will mail to you) to the following: 


 Equifax Information Service Center
Attn: Consumer Dept. 
PO Box 740241 
Atlanta, GA 30374 
1-888-909-7304 
www.equifax.com 


 Experian
Consumer Assistance 
PO Box 2350 
Chatsworth, CA 91313-2350 
1-888-397-3742 
www.experian.com 


 TransUnion Corporation
National Consumer Disclosure Center 
PO Box 7000 
North Olmstead, OH 44070 
312-408-1400 
www.transunion.com 

Is true that in some cases I can get rid of student loans in a bankruptcy?

It is legally possible to discharge student loans, but only a very small number of debtors have actually accompshied this. In order to discharge student loans in bankruptcy, one has to file a law suit called an adversarial proceeding against their student loan creditor in the bankruptcy court.  After the person files the law suit, that person bears the burden of proof to prove that you have an "undue hardship."  This term has never been defined anywhere, so each bankrptcy court needs to decide what is an undue hardship on its own.  However, there are legal tests that will help the court decide whether or not you have an undue hardship such as the Brunner Test.  The procedural steps to file the bankruptcy and then the law suit can be simple, accomplishing the discharge of student loans is a feat that very few reletively few people actually accomplish. Most folks simply don't have sufficient documented proof that will stand up in court which proves that they cannot maitain even a minimal standard of living, that their condition is likely to persist, and that they have made good faith efforts to repay their student loan debt.  Thus, in the majority of cases, discahrging student loans while possible in theory, simply isn't possible to be accompshed in court.   If you think you have the evidence of the undue hardhsip, you should contact an experienced trial attorney about your case. 

questions about Guardianships

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What is a guardianship?

In general,  guardianship is where the Superior Court appoints a person to act as a guardian for a another person (generally referred to as an incapcitated person) who is in some way  unable to take care of their own physical and/or finanical needs.   The nature and degree of the incapcitating condition are as unique as the people struggling with these conditions, as such a gaurdianship may or not be necessary depending on the nature of the condition.  Guardianships are considered to be measures of last resort when all other options fall short of providing the best options to meet the physical, emotional, spritual, and/or financial needs of the incapcitated person. 


If a person is appointed as a guardian (usually for a family member) that guardian has special duties to make regular reports to the court about the incapacitated person.   Depeding on the type of court appointment, the guardian may have to give regular updates as to the physical well being of the person, and/or their finances and/or both.  


In the typical guardianship case, a petition will be prepared along with supporting documents.  After the documents are filed with the court, a court appointed investigator, called a gaurdian ad litem,  is appointed to investigate the allegations of the petition and file a report and make recommendations to the court.  After the guardian ad litem report is filed, a hearing will be held to appoint the guardian.  After the appointment, the guardian will have to file documents with the court pertaining to the physical needs and care plan of the incapacitated person and/or an inventory of the assets of the incapcitated person.  Thereafter the guardian will have to return to court on a regular basis (usualy every year to three years) to give regular reports to the court. 

Why do I need a guardianship?

You may or may not need a guardianship depending on the facts of your case.  As I said above, guardianships are measures of last resort and there may be less restrictive measures which will provide the incapcitated person an optimal quality of life and also see that their physical needs are met and their finances resolved.  If any of there are any less restrictive alteratives to guardianship that accomplishes these items, then a guardianship may not be necessary.  In cases where anything less than a guardianship would be inadequate to provide the optimal quality of life and see to the incapcitated person's physical and/or financial needs, or the person may pose a danger to him/herself with anything less than a guardianship, then a guardianship may be necessary. 

Do I aways need a an attorney to become a guardian?

I always highly recommend having an attorney when seeking an appointment as a guardian for another person.  There can be complications in this process, so having an attorney by your side is a good idea to guide you and help avoid pit falls that may be in your path.  An Attorney can also make sure that you all supporting documents are filed and nothing holds up your appointment.  


After you have been appointed, you may or may not need an attorney to prepare your court reports, it depends a lot on how well you keep records and how organized you are. There are also groups of legal volunteers that can help you gather documents and prepare necessary court reports when you are in this stage of a guardianship.  


That being said, it is definately worth to have an attorney at least during the initial part of your guardianship.  Later on, you may or may not need an attorney, depending on your level of comfort in preparing the required reports and interacting with the court and your judge. 

What is a guaridian ad litem and who pays his/her fees?

A guardian ad litem is a court appointed investigator who will meet with you, and the incapcitated person, and other members of the family and review any pertainent medical records, and prepare a report with recommendations to the court as to whether a guardianship is necessary and how that guardianship should be structured if one is needed.  


Guardian ad litems do not work for free.  Generally speaking the incapcitated person is responsible for the fees of the guardian ad litem.    If the incapaicitated person would face a substanial hardship in paying the guardian ad litem fees, then you can ask that the guardian ad litem be paid at county expense.  However, the court may find that the petitioner (the person asking for the guardian to be appointed) has the ability to pay for the guardian ad litem and ask for a reimbursement for payment of the guardian ad litem fees. 

How much does a guardianship cost?

I cannot quote my fees for preparing a guardianship petition  on a forum such as this website, as the time I spend in preparing documents and going to court varies from case to case.  In addition, I cannot tell you how much a guardian ad litem charges to prepare and file the report and go to the court hearing.  There is a court filng fee for a Guadianship petition and in Pierce County that fee is $240.  In some cases, this fee can be waived depending on the finances and assets of the incapcitated person.  Another cost is the cost for letters of guardianship (which act as proof of your legal authority as guardian). 

What does a guardian do?

This depends on what you are appointed to do.  


Some guardians are appointed as guardians of the person only. This means that the guardian take care of the person, see to his/her needs, see that they get appropriate medical care, and make sure that the incapacitated person has a good quality of life.  The Guardian files a care plan with the court periodically and report to the court about ongoing plans to care for the person and provide updates as to how the person is progressing in their care plan.  


Other guardians are appointed to be guardians of the estate.  This means that they are appointed to see to the person's financial estate and/or his/her assets and finances.  Periodically, as directed by the court, they are to  update the inventory of the person's property and provide a financial account of the incapcitated person's financial accounts. 


Some guardians are appointed as both guardians of the person and the estate which means they have to file regular reports with the courts as to the person's physical well being as well as their financial well being.    


To summarize, as a guardian you will be given responsibilities to see to the physical well being of an incapcitated person, their finances, or both and will not only have to service those needs but make periodic reports to the Court overseeing the guardianship. 

Questions about wills/probate

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Do I need a will or Power of Attorney?

Strictily speaking, you do not need a will or power of attorney.  Should you have a these documents?  I would strongly recommend having these documents.  If you do not prepare these documents, upon your incapcity  or death you will be unable make decisions about who can speak and make decisions for you or about who you want to inherit your property when you die.  If you do not make these decisions ahead of time, the state will make certain decisions for you.  As an exemple, if you want your best friend's daughter to get your car after you die, but do not make a will, then that car will likely go to member(s) of your family as dictated in the Title 11 of the Revised Code of Washington.   To see that your wishes can be carried out after you die or become incapacitated, you should make your will and have durable powers of attorneys and health care directives in place. 

Do I need a probate?

This depends on the nature and scope of the estate of the person who died.   If the estate of the deceased has a more than $100,000 of probate assests or owns a house  and/or land, then a probate is necessary to handle issues of title and distribute assets to heirs.  If your estate is less than $100,000 and the deceased did not own real estate you may be able to use a small estate affidavit instead of filing a probate action in court. 

How much does a probate cost?

My fees in a probate are determined on a case by case basis.  This depends on several factors including, but not limited to, the size of the estate, how many heirs involved, or whether or not all of the heirs got along.  Costs asscoiated with doing a probate are the court filing fee of $240, plus cost of publishing the notice to creditors in a local legal newspaper (usally $150 - $200 depedning on the newspaper), and the cost for letters testamentary/adminstration (usually about $5.00 per certified copy of the letter). 

How much does a will cost?

Wills, Powers of Attorney, and Living Wills (also known as advanced health care directives)  are a flat fee service, and so this is the one time that I will quote my prices on this website.  I would be happy to draft your will, durable power of attorney, and living will all for $550.00.   I would ask that you be willing to sit down for 1 - 2 hours with me so that I can determine how you wish to structure these documents.  We would then have a signing ceremony to see that the will and other documents are properly executed so that they can be honored after your death/incapacity. 

Do I have to pay my loved ones debts?

You are not personally responsible to pay your loved one's debts.  When I file a probate, I will generally publish a Notice to Creditors in a local legal news paper.  Creditors have 120 days from the date of that notice's 1st publication to file their claims with the court.   If claims are filed late (after the 120 days), then generally the claim can be rejected and receive no payment from the estate.   If, however, the claim was timely filed, then the personal representative of the estate or estate administrator would need to pay the claim as allowed by estate assets.   Heirs are not generally personally laible for paying the debts of the deceased.  Only the Estate of the deceased is liable for payment of said claims.   In a situation where assets of the estate were less than the amount of the creditors' claims, then all of the assets of the estate will be distributed to the creditors pursuant to a court approved distribution.  This also means that there will be no assets left to distriubte to heirs of the deceased.  

How do I get my inheritance?

In a probate situation, your inheritance will typically come towards the end of the probate after assets of the estate were liquidated and all allowed claims were paid.  Typically, the person appionted by the court to serve as the personal representative or estate administrator has the responsiblty to first pay creditors claims from estate assets.    After creditor's claims are dealt with, the personal representaive or administrator may then distribute remaining assets to the other heirs as directed in the Will or the Revised Code of Washington (if there was no Will that could be found). 

questions about Adoptions

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Can I adopt my step child, neice, nephew, foster child, etc?

If you are considering an adoption, you may wish to consider a few items.  First of all, a child must be legally free for adoption.  This means that child's biological parents have consented to or will consent to the adoption, or the parent's rights were terminated by a court, and that there are no other laws (including interational laws) which might prevent the adoption of child. 


In addition, the state will look at other factors in deciding whether an adoption is in the best interest of the child.  For example, if a child's family member such as an uncle, aunt, or grandparent, wishes to adopt the child, they will be preferred over those who are not biologically related to the child.  Finally, if the child is a member of or eligible to be a member of a federally recogized Native American Tribe, the tribe may intervene and have a say in whether or not you can adopt a child of Native American ethnicity. 


If you are thinking about adopting a child, please feel free to come in and meet with us. 

How much does adoption cost?

What I charge depends on the specifics of the case.  In some cases, I may need to attempt to locate a long lost parent, and in other cases, the adoption is unconstested and consents have been signed. The prices range varies based upon the facts of the case.  You can expect to pay a court filing fee, which is $240 in Pierce County, you can expect to pay for a homestudy report.   For example a local adotpion agency, Pierce County Adoptions, charges $600 for a releative adoption homestudy report.  You can also expect to pay for certified copies of an Adoption Decree and for new birth certificates, the prices of which vary depending on which state you are working with. 

Do I need to notify long absent biological parents if I want to adopt their child?

In a word, Yes.  Every parent has a fundamental right to parent their offspring that cannot just be taken away except through 'due process under law.'   In other words,  our constitution will not allow the government or its courts take away a person's right to parent their children except through a legal proceeding in a court.  If a parent has walked out on the child and voluntarily removed themselves from the child's life, they still have these rights, and therefore they have a right to be notified about court proceedings which will terminate those parental rights.  In Washington, our courts very much prefer personal service notice on the biological parent(s) who could loose their rights.   If a biological parent cannot be located or is trying to hide (and every effort has been made to find them) then a judge can allow notice to be served on them by publication of a notice in a local news paper for the area where the parent was last known to be residing.   


In short, yes you need to notify the biological parents (or attempt to do so), so that your child's adoption will stand the test of time, and you will not face legal challenges to the adoption later on. 

What is the effect of an adoption?

When you adopt a child, that child is legally your child, and will be treated in every legal respect as your biological child.         This means in any legal proceeding involving the child and the parents, the state will veiw the child as the legal offspring of the adoptive parent(s).  For example,  tjhe adoptive parent will always be responsible for child support in the event of a divorce, that child will receive an inheritance in the same manner as any biological offspring of the decesed adoptive parent, and that child's birth certificate will be changed to refect the names of the adoptive parent(s) as the child's parents.   Thu in every legal respect, the adoptive child is the same as any biological offspring of the adoptive parents. 

Why can't I just adopt a child of Native American Ancestry?

At one time, though it seems backwards now, the U.S.  government had a policy wherein Native American children should be removed from their tribes, and assimilated into the European-American /non-native  culture.  This policy has been reversed through the enctment of the Indian Child Welfare Act ("ICWA") and other laws.  ICWA provides that non Native American parents may adopt Native American children providing notice to the Tribe and allowing the tribe to intervene in the adoption.  ICWA tries to insure that the Native American children do not loose their cultural/ethnic heritage.   

How do I get new birth certificates for my a child that I adopted?

This is usally done by contacting the appropriate state office that originally issued the child's birth certificate.  I usually work with Pierce County Adoptions, and the wonderful folks at this agency, usually  provide my clients with costs and instructions for obtaining their child's new birth certificates.   This step normally occurs prior the end of the adoption court process. 

Questions about criminal law

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What is the difference between a felony and misdameanor?

The difference between a felony and a misdemeanors, is the the maximum sentence and fines that can be imposed.  


Misdemeanors are divided into misdemeanors and gross misdemenors.  For misdemeanors you can face up to a maximum of 90 days in jail and/or up to a $1,000 fine, and for gross misdemeanors the maxium sentece is up to 364 days in jail and up to a $5,000 fine.   Prosecution of a misdemeanor or gross misdemeanor will be handled by either a county district court or in a municipal court. 


Felonies are divided into three classes which are Class C, Class B, and Class A Felonies (with Class C felonies being the lowest level of felony and Class A being the most serious type of Felony).  For Class C Felonies, you can face up to 5 years in prision and/or up to a $10,000 fine. For Class B Felonies you can face up to 10 years in Prision and up to a $20,000 fine.  For Class A Felonies you can face up to life in prision and up to a $50,000 fine.   These are statutory limits set forth in the Revised Code of Washington; however, these sentences can be enhanced by the presence of aggravating factors . 


The limits given above are maximum penalties, and do not generally reflect the sentence actually imposed by the courts in all cases.  In many cases a person who is a first time offender who is convicted or pleads guilty to a Class C Felony may end up with less than 90 days in jail  or no time in jail, but may end up paying a fine, being on probation for a few years.  

How much do you charge to take my case?

As I have said before in this FAQ, it is impossible for me to give what I would charge in any specific criminal case, owing to the wide variety of  facts that can present itself in any case.  In addition, what I charge in a case is also affected by what my client wants out of the representation.  A client that wants to go to trial is looking at a potentially higher fee than someone who would be willing to take a plea deal such as a deferred findings or deferred sentencing.  


I will point out, that my representation of clients is limited only to those accused of misdemeanors.  I do not represent clients facing felony charges. 

Any tips for dealing with the cops?

  The best general tip for interactions with police officers is to First of all, be polite and respectful.  No good can come being disprectful or rude to a police officer.  Secondly, Do not lie to the police officers.  Police officers can find evidence of lies with the resources available to them.    Now, I will point out that I did not say admit to anything.  If you believe that speaking to a police officer would incriminate or implicate yourself in wrongdoing, then you have the right to remain silent or simply state (in a respectful tone of course) I need to speak to my lawyer.  You should never admit guilt to a police officer unless you do so on the advice of your attorney.     

What if I can't make my court date?

Court dates in criminal court are mandatory, so do what it takes to be present at court.  If you do not appear for your court date, the court will likely issue a warrant for your arrest.  In any case, do what it takes to be present at court.   For those who are charged with for driving on a suspeded liscense or "DWLS," do not drive yourself to the courthouse, get a friend to drive you or take an taxi or uber.  Remember, you should not be driving / operating any motor vehicle without a valid license and inusrance. 

What can an attorney do for me in my criminal case?

An attorney can help you in your criminal case in several ways.  A competent attorney will be familiar with the laws and the court with which you are dealing.  This means that he can act as a guide to the court system and give you important information about the process.  An attorney can also review the evidence and case against you,  help you to decide whether or not you want to take a deal or go to trial.  In short an attorney can be your advocate, your guide, defender and help you through your criminal case. 

What will happen to me if I am charged with a crime?

If you have been charged with a crime, you will be summoned to court (or if in custody) brought to court for a hearing called an arraigment.  In an arriagment, the judge will make sure you understand the charges brought against you and ask you to enter a plea.  At this point, the judge will only likely accept a plea of 'not guilty," in order to see your consitutional rights to due process and your presumption of innocence are preserved.  If later on you want to change your plea to guilty you may do so.   Finally, at the arraigment, we will discuss conditions of release and bail.  This is where your defense attorney and the prosecutor will argue whether or not you should remain out of jail while awaiting trial, and what if any bail should be set, and what conditions you will be expected to adhere to pending your trial and sentencing. 


After the arraignment you will be ordered to return to court for a pre trial conference. This is where a deals are negotiated with the prosecutor or the decision is made to proceed to trial.  Depending on your case you may have more than one pre-trial conference hearings.   However, by the conclusion of the last pre-trial conference hearing, you will have either taken a deal or begin preparing for trial.  


After the pre-trial conference, the judge will set a briefing schedule and other trial reddiness hearings to make sure that all motions can be made, briefs submitted, and that all parties are ready to show up ready for court on the day of trial. 


Finally, it is time for the trial.  Trial will begin by the selection of jurors in your case.  The number of jurors can vary from court to court.  Usually, there are six jurors in a misdemeanor trial or 12 jurors in a felony.  Your attorney can question jurors and perhaps remove juror candidates who might be more favorable of the prosecution's case.  After Jurors are selected then the trial will beging with opening arguments, and then the presentation of witnesses by both the prosection and defense.  Each witness will usually be examined or questioned under oath by both sides to a case.  Following witness testimony, each side will present closing arguments and the case will go to the jury.   The jury,  following deliberation will return with a finding of guilty, or of acquittal.  Another result could be a 'hung jury,'  which is where a jury neither found the defendant guitly nor acquitted him.   If you are acquitted your criminal case is over. 


Following the trial you will be sentenced, if you are found guilty, and this may include jail time, a fine, probation, and other conditions of sentence as the court may deem fit  


In this process, having an attorney by yourside can help you determine whether you should take a plea deal or go to trial and what the consequences of those actions mean for you.   In addtion, an attorney can help determine what claims, defenses, and witnesses to call at trial, and determine what strategy is most likely to help you reach your goals in this case.