Konowitz & Greenberg, Attorneys at Law

Volume 1, Issue 4: FALL 2008

In This Issue:

K&G welcomes our newest associate, Rosalind Kabrhel, to the firm. A graduate of Catholic University of America, Roz brings with her over nine years of litigation savvy from her work in both the political and public sectors. Welcome, Roz!

Family Law
A Look at the American Academy of Adoption Attorneys

As many of you may know, I am currently the President of the American Academy of Adoption Attorneys. I am honored to be involved with the Academy because of the important and good work that the Academy has done and continues to do.

The Academy was formed in 1990 and is a not-for-profit national association of attorneys, judges, and professors who practice adoption law and who have distinguished themselves by their dedication to the highest standards of practice in handling adoptions.

Today the Academy is comprised of more than 300 members from the United States and Canada. Admission to the Academy is by invitation only. To be considered for admission, attorneys must adhere to the highest professional and ethical standards. Among other things, the attorney must also have acted as counsel in at least 50 adoption proceedings, ten of which involve interstate placements, and 20 within the past two years.

The goals of the Academy include:

In furtherance of its goals, the Academy actively participates in the drafting and passage of federal and state adoption legislation. The Academy currently employs a lobbyist on Capitol Hill to pursue its interests, and often sends a representative to participate in legislative hearings on adoption matters.

Karen K. Greenberg ext.235

Estates & Trusts
Understanding the Nuts and Bolts of Wills

Do you need a legal will? Yes!

A will allows you to determine who will receive your assets at your death and when they will receive it. For example, your will can give assets directly to specified recipients or direct your assets to a trust until the beneficiaries of that trust reach a specified age. A will also allows you to choose the executor, who will administer your estate, and grant additional powers to your executor, such as the power to sell real estate without permission from the court. Of importance to anyone with minor children, a will also allows you to name the guardian(s) who will raise them.

Without a will, the state intestacy statute applies. In that case, the state determines who will receive your property and who will raise your children.

Once you have made your will, you should review it at least every three to five years to ensure that it still accomplishes your goals. However, you should review it more frequently and make changes if you have married, divorced, separated, or remarried; if you have moved to a different state; if your assets have significantly increased or decreased in value; if there is a change in tax laws; if your relationship with a beneficiary has changed; or if a beneficiary’s needs have changed.

A will is a vital tool in planning for the future, but it will not dispose of every asset in your estate. Only individually owned assets are disbursed through a will. Jointly owned assets, such as real estate or bank accounts, pass directly to the surviving joint owner. Similarly, assets with a designated beneficiary, such as retirement accounts, annuities, and life insurance policies, pass directly to the named beneficiaries.

Call me with any questions you may have regarding your estate plan.

Arlene L. Kasarjian ext.228

Corporate Law
Maximizing the Protection of Single Member LLC Real Estate

Most real estate investors would agree that among their major concerns when purchasing real estate are limiting personal liability and not having their personal assets subject to creditor claims. To address these concerns, limited liability companies (“LLC”) are growing in popularity as real estate holding entities. Unlike a general partnership, under which all partners may be personally liable for claims against the partnership, or a limited partnership, under which the general partner and the limited partners who actively participate in the management of the limited partnership face personally liability, all of the members of a properly formed LLC can avoid personal liability for the LLC’s action.

In addition, there are several other things that you can do to strengthen the protection of limited liability that an LLC offers:

Aside from shielding your personal assets from creditors, owning investment property in an LLC provides other advantages, including easy transfer of ownership without recording such transfers, and various potential estate tax planning benefits.

Steven S. Konowitz ext.236

Litigation
Achieving Desirable Results for Our Clients

Konowitz & Greenberg strives to provide unparalleled service and results to its individual and business litigation clients, no matter where the dispute may occur. Recently, Konowitz & Greenberg succeeded in obtaining the dismissal of claims filed against one of its clients in Maine. That case, filed by one partner against the other members of a partnership established for the purpose of owning and operating a commercial property in Maine, alleged a breach of fiduciary duties and obligations by the partners and sought an accounting, the appointment of a receiver over the Maine property and the dissolution of the partnership.

Representing the defendant partners, Konowitz & Greenberg moved to dismiss the case on the grounds of forum non conveniens, arguing that Maine, despite being the location of the property, was an inconvenient and improper forum since all of the partners were located in Massachusetts, all documents and witnesses were in Massachusetts, and the claims were intertwined with other business ventures between the partners that had been pursued in Massachusetts. Simultaneously, Konowitz & Greenberg filed suit in Massachusetts on behalf of our clients and against the plaintiff in the Maine litigation, asserting claims related to those other business ventures between the partners as well as to the Maine property.

The Maine court granted the motion to dismiss, ruling that Maine was “a seriously inconvenient forum for the trial of the matter.” The court held that “because the partners are also parties to litigation in Massachusetts, which litigation in part includes the subject matter of this action, dismissal of this action would further the ends of justice and promote convenience of the suit for the parties.”

Brad A. Compston ext.225

Real Estate
Demystifying Deceptive Mortgage Lending Practices

Given the microscope under which the predatory lending practices of many banks and mortgage companies are being examined these days, it is important to know which practices are legal and which are not when shopping for a new mortgage.

Massachusetts law provides that “it is an unfair or deceptive act or practice for a mortgage broker or lender to conceal or fail to disclose to a borrower any fact relating to the loan transaction, disclosure of which may have influenced the borrower not to enter into the transaction with the broker or lender.” In addition, any affirmative false or misleading representation or statement of fact concerning the loan may violate the law. These regulations have the teeth of the Massachusetts Consumer Protection Laws behind them, and damages may include attorney’s fees and treble damages.

While no hard and fast rule exists, in deciding cases courts typically consider the parties’ circumstances and distinguish statements of concrete fact from more general statements. For example, the courts may consider the borrower’s education and level of sophistication with business matters. Decisions also recognize that statements of expectation, such as “we’ll work with you,” do not support an action for common law fraud or a claim for a violation of the consumer protection statutes.

If you are concerned about the validity of a statement made to you by your mortgage broker, always ask for it in writing and read all the paperwork before you sign. If you do not understand any of the documents you are asked to sign, always seek legal advice prior to signing.

Mia Rosenblatt Tinkjian ext.226

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