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Tuesday, December 30, 2008

Rolling Your Retirement Account to an IRA opens the Door for Future Creditors

I worked in the stock market for eight years and there are a surprising number of people who automatically roll over their 401(k) or 403(b) to an Individual Retirement Account (IRA)once they have left their employers. Some do not even know that they can leave their money in their employer-sponsored plan after they leave employment.

Rolling over to an IRA does grant greater convenience in taking out one's hard-earned money, however many do not realize the protection that is lost when assets are rolled over into an IRA. For example, if your money is in a retirement plan which is qualified under the Federal Employee Retirement Income and Security Act (ERISA), then money in your plan is exempt from the claims of most creditors. The reason is that the assets are lumped together and are considered the assets of the sponsoring plan and not the individual. So long as the plan may not be assigned or alienated, the qualified ERISA plan is an excellent vehicle for asset protection. So if you own your own business, are rich, or just think you are going to get sued, then you should try to protect your assets as much as possible and leave your money in your employer's plan.

Conversely, individual accounts such as IRA's, SEP IRA's, some Keoghs and other retirement accounts are easy for creditors to access. It all depends on your state's law, but a good rule of thumb is that if you can get to your money and it isn't exempt by state law, then it will be easy for your creditors to get those same funds.

Monday, December 29, 2008

Trademarks - What's So Special about the ® ?

A trademark is any word, name, symbol, or device used by a person or which a person has a bona fide intention to use in commerce to indicate the source of goods or services and distinguish his or her goods. Trademarks are types of intellectual property and are mostly governed by Federal law. Trademarks may be registered with the United States Patent and Trademark Office (PTO), but still give the trademark holder some rights even when not registered as there are common-law trademark rights to protection in addition to the rights created by Federal law. I'll give you the "quick and easy" version of when to use certain trademark symbols on your various product or service marks.

® is a symbol you can only use when you have registered your mark with the PTO. Why register you ask? There are many benefits, but the most important one being that a person or entity cannot bring a lawsuit in Federal court concerning a mark if that mark is not registered. Registering your mark also grants you prima facie evidence of the validity of your registration and gives you nationwide constructive use of the mark as of the date of your application. The safest time to use this mark is when you have registered your mark with the PTO and received notice back of its validity.

™ is a symbol that many other people should be attaching to marks on products. Trademarks are territorial in nature and the symbol ™ indicates to the reader that the person who placed that mark on that product, is indicating some type of ownership or interest in the mark. It does not mean the trademark claim is valid, but it simply alerts the public that you think you have some rights to that mark. You do not need to pay any money or register your mark in order to place the ™ symbol on your mark and it is not used enough in small businesses.

Service marks are the same as the trademark "™" symbol except that the small T is replaced by a small S to indicate a service rather than a good.

This was the oversimplified course in trademarks. However, with the marketplace being as global as it is, this information is critical to every business owner regardless of the size of one's business.

Wednesday, December 24, 2008

The Microsoft Surface: really fun and really infringing

I love the new Microsoft Surface. It is a computer that looks like a table which allows for multiple users to compute using their hands instead of a mouse. The Surface downloads pictures from cameras, uploads maps to get places and even lets you pay your bar tab without getting off your seat.

For example, to take pictures from your camera and put them on a PDA, simply place your camera down on the surface and your pictures will instantly spill out onto the screen as if you dropped a deck of cards (maybe that expression only works here in Las Vegas). After placing another wireless device down on the surface, you can then drag a picture with your finger over to the other device which will instantly download the picture. You can share pictures, music, and pretty much anything else on your electronic device.

It is against the law to create technology and then encourage people to share copyrighted material. Microsoft arguably did that under the flag of its "Zune Technology" but it has since changed its website because its lawyers were probably jumping out of windows. Microsoft Corporation will encounter some Copyright issues because of how they marketed the Surface on their website, but they are a huge corporation and can buy their way out of lawsuits.

I recently wrote a paper speaking to a few copyright issues that Microsoft may encounter as a result of this new technology. Please contact me if you would like to see the finished paper which cites the references and all of that.

Monday, December 22, 2008 - An Easy Way to Manage Your Budget

I heard about a few months ago while reading a news article. It is a site that logs into all of your online bank accounts, credit card accounts and any other spending or savings account you have in order to give you a big picture of what you are spending your money on. The site charts, graphs and categorizes the items you purchase showing you what you spend and where. You can even break down your purchases into various spending trends. You can see a ledger of all of your spending as it monitors all of your accounts or customize alert messages if you exceed your budget or have any payments to make in the near future.

The site also suggests different ways you can save money. This is obviously a source of revenue for the site, so take all of their suggestions with a grain of salt. However, the site may suggest real ways to save that will be beneficial to you. Just make sure to do your homework before changing any of your accounts to companies that suggests.

One caution is the security of the account. I do not know how secure the site is from hackers and it is more dangerous to "put all of your eggs in one basket" by putting all of your accounts and their passwords on one site. However with the protections of each account from identity theft, I felt comfortable putting my account information onto the site.

It is a free service and I've only tried it out for a couple of months. It seems to be very good for someone who does not have much time to sit down and track their monthly expenses, but still wants to know where their money is going. For very little time and effort, anyone can set up an account and establish a budget. I think it would be beneficial to the majority of people who spend money.

Friday, December 19, 2008

Hope for Homeowners?

The HOPE for Homeowners program (also known as "H4H") was created by Congress pursuant to the Economic and Housing Recovery Act of 2008, in order to help curb the increasing number of mortgage defaults and foreclosures throughout the country. I first learned of this program when a neighbor told me he had been contacted by a lawyer that offered to cut his mortgage by $100,000 essentially cutting his payment by over $1,000 a month. Being an attorney, I was instantly curious as to how this could happen as everyone else in the Las Vegas valley seemed to be getting foreclosed on and leaving their homes.

It turns out that effective from October 1, 2008 to September 30, 2011, as many as 400,000 homeowners could be helped by the HOPE program, which program allows families to refinance their current loan into a new fixed-rate loan with lower payments. The Government plans to shell out $300 billion for this program. The new loans are insured by HUD’s Federal Housing Administration (FHA) and provide another option for people who are having difficulty making their mortgage payments.

In addition to being able to refinance, the bank can "write off" or take a loss on the difference between the original loan amount and the new refinanced loan amount. This means my neighbor was correct in saying that his mortgage may be decreased by $100,000.

Now before anyone gets too excited about this program, you need to see if you qualify.

Consistent with other statutory requirements, borrowers must meet the following criteria:
-Their mortgage must have originated on or before January 1, 2008;
-They cannot afford their current loan;
-They must have made a minimum of six full payments on their existing first mortgage and did not intentionally miss mortgage payments;
-They do not own a second home;
-Their mortgage debt-to-income must be at least 31 percent;
-They did not knowingly or willfully provide false information to obtain the existing mortgage, and they have not been convicted of fraud in the last 10 years;
-They must follow FHA’s long-standing and strict policy of fully documented income and employment.
-Homeowners must agree to share both the equity created at the beginning of their new HOPE for Homeowners mortgage and any future appreciation in the value of their home.
-To participate, existing subordinate lenders must agree to release their outstanding mortgage liens.
-The new HOPE for Homeowners mortgage payment must be at or below 31 percent of the borrower’s income, unless there is ‘trial modification’ period prior to loan application. A trial modification would give borrowers the opportunity to demonstrate their capacity and willingness to make a mortgage payment that does not exceed 38 percent of their monthly income.

This program is breath of fresh air for homeowners as we constantly hear about financial bailout programs for Wall Street and automakers for billions of dollars. Here in Nevada, the HOPE program has not caught on. As expected from the archaic financial industry, many banks were still waiting for further guidelines before doing anything to help those inquiring about this program. Large companies such as Countrywide are supposedly setting up their own departments to handle this new option for homeowners.

This program is exciting, but it is still contingent on the bank cooperating with the homeowner. The program is still too new to see how flexible banks and other mortgage companies will be when it comes down to their bottom line. If you want to read more about the HOPE for Homeowners program, you can access this link for further information.

Yes, My Name is Nevada

This site is the law according to Nevada.... Kirk Nevada.

My background: I spent eight years working for one of the largest mutual fund companies in the world. I earned my M.B.A. in Entrepreneurship and then decided to couple my business experience with the field of the law. I obtained my J.D. and am a practicing attorney in Las Vegas, Nevada.