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Trusts, Mediation vs Litigation, Power of Attorney and More Judica County Q&A

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
November 4, 2023 2:00 pm

Trusts, Mediation vs Litigation, Power of Attorney and More Judica County Q&A

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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November 4, 2023 2:00 pm

On this edition of Judica County Radio, Attorneys Josh Whitaker and Joe Hamer of Whitaker & Hamer Law Firm handle question & answer. Estate planning questions, Do you need a Trust? When is a trust needed? Mediation vs Litigation? Breaking down Power of Attorney and when it is needed. HOA vs AirBnb and buying into an LLC. All these questions and more on this edition of Judica County. 

If you are facing a legal situation and have questions you can always call Whitaker & Hamer law Firm and get answers 800-659-1186.

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Welcome in to Judica County. Coming up today on the program, we have more question and answer. Always tons of questions coming in about legalese. Josh and Joe, again managing partners at Whitaker and Hamer law firm.

We'll tackle them all. That's all coming up next on Judica County Radio. Whitaker and Hamer presents Judica County with Joshua Whitaker and Joseph Hamer. And Joe Hamer, managing partners, Whitaker and Hamer law firm, pricing attorneys here in North Carolina. Your law firm for life.

They have offices in Raleigh, Garner, Clayton, Gullsboro, Fuquay-Varina, Gastonia, and Morehead City. I'm Morgan Patrick, consumer advocate. Each and every week we talk legalese.

We understand there's a lot going on in everybody's lives and you might have a legal question that you're facing and you need answers. You can always call Whitaker and Hamer 800-659-1. That's 800-659-1186. You can also email your questions to the show info at judicacounty.com.

Now, when you call us at 800-659-1186, leave your contact information briefly what the call is about and an attorney with Whitaker and Hamer will be in touch. All right. Now, no further ado, Josh Whitaker and Joe Hamer, the stage is yours. You do a great job bringing us in. And, uh, I feel like we need that 24 hours a day. We just, I need you to follow me around. And anytime I go into any kind of room, I just need you to send the space. Welcome to the diner. He is going to have lunch here for about an hour.

Josh Whitaker. I like that, man. Or have, uh, Mean Gene Okerlund. Every time you walk into a room.

Like a pro wrestling intro. I like Mean Gene. He's passed away. Yeah. The ghost of Mean Gene.

It's Halloween, man. We have, we have AI. We could bring him back. We could do a, yeah, we should do that. Do a seance on live, on radio, do a seance and try to bring the ghost of Mean Gene. Ouija boredom.

We could do that. You seem sad, man. We tell you, see, you know, Morgan mentioned Eeyore and I'm looking at you and I see a human embodiment of Eeyore. I stayed up, I stayed up a little longer last night than I usually would do on a, on a weekday. We, uh, we're down here at Shady's on Main Street in Garner, me and, me and Joseph, uh, recording, uh, getting ready for another mystery question, uh, day that we like to do. And, uh, I'm a little tired, but I'm getting there. It's a nice day out though. You know, there's that. It is nice. It is.

It is. And, uh, it's wearing off on me, man. I'm starting to, I had a lot of energy. I feel like you're energy vampiring me right now, honestly. I'm going to bring it up a notch.

I'm gonna kick it up a notch. I got this. I got this coffee.

If you want to take a couple sips, man, you just take turns taking hits off of this coffee. It's all right. It's all right. I think, uh, I think, uh, we're going to do, I think today is going to be another, uh, we've been calling it mystery question day and we've had a lot of them in a row, but I like this format. I like getting these questions from, uh, from listeners in different forms and, and, uh, kind of giving you our take anyway, for, for better or worse.

Yeah. Keeps you on your toes, man. I like it too. I like it too.

It does. And then I can't emphasize that enough. Me and Joe, um, I think back to, uh, my dad was always a big fan of what was that, uh, car talk. You ever listen to that?

No, never. Morgan, you ever listen to car talk? It was like a radio thing? Yes. Yes.

Yeah. It was just two guys, good attitudes. Just two men. They just take, you know, they, it was pretty recorded, but they take questions from people about trying to figure out what's wrong with their car. Two strong men talking about cars.

But, but they were, it was fun to listen to. I'm not a big, I can, I can fix things when I need to fix things, but I'm definitely not a new mechanic by any stretch of the imagination, but I had listened to it and I thought it was a good show. I could change your windshield wipers.

Give me about 25 minutes to do it. Well, when you think about it, guys, when you, when you think about it, you're kind of, you're the legal guys. You're the, you're, you're, you know, we're talking about legalese on the radio and if people have a problem, it might hit on that.

It's kind of like the car guys, but you're legal. My God, Morgan, I hadn't thought of that. I had to bring it all the way back.

Had to bring it all the way back. I was kind of thinking that when I said it. I can't wait until there's like a, just trying to think of a rant, like a plumber show. And they're like, I like, you remember my dad used to listen to those two attorney guys back on Saturday afternoons. Well, you know, um, you know, that's, uh, well, you know, and, and, and, and from that show, I still can't fix cars.

Right. But I got an idea now I've got a better idea. You know, when something happens, I think back to car, I think back to car talk and I'm like, Hey, I remember this guy had this problem and this is what they said. I still can't, I listened to a lot of car talk. I can identify a car.

I can look at these things moving on the road and say, that's definitely a car. I didn't, I've never listened to car talk man, but, um, is that a, still a thing or is it not a thing anymore? Well, one of the guys died. So is it just the one guy talking to them?

So maybe they got that guy's ghost on. I'm not sure. I'm not sure. I'm not sure anymore. I wasn't prepared to talk that much about the car talk.

You came, you came out of the gate. Yeah. If you want any more information on car talk, you'll have to give it a Google, but it's well worth, it's well worth listening to. Lucky for you.

I've got Google available now. But yeah, we had questions today. We got to, there's some questions that touch on estate planning. It seems like a lot of these questions, somebody has died. And I think we got, I think we got some more of those, you know, and, uh, uh, you know, real property, personal property, contracts, like these hit all the big legal areas. I think we even got like a personal injury question in here today. So an auto accident. You're supposed to be sight unseen, man.

You tell them you've been, you've been cheating on the system. Are you just. Okay. All right.

I'm just telling you, I know, I know. Cause if you're getting insight on these questions, man, and I'm having to go in with, with no knowledge, just my legal prowess. So when I prepared, when we started doing this a couple of weeks ago and I prepared our hat full of questions, right?

You filled the hat. I don't know which ones are coming. I haven't done any homework, but I've laid eyes on them. Okay. All right. That's fine. I just know integrity is a big part of the show.

So it's very important to me. So just, uh, just an update. So, uh, the best of car talk, uh, NPR's carrying it, uh, doesn't look like they're creating any new programming. Uh, and it did end its radio run, uh, again, back in 2021, uh, back in September of 2021, but they, they had been on the air since 1977. Yeah. That's a long time. NPR picked them up and they're, they're versions of it. They're best ofs that are out there. But as far as recreating, uh, that show, I think they're running current, uh, just reruns right now.

Well, those reruns probably hold up pretty good. So if we want to, if we want to best those guys, that's 44 years on air. Hey, we're, we're started. We're on the way. Let's go.

Yeah. So that's, uh, we're, we're well on our way, man. We're going to be, it's what, 2065 somewhere around there. You're going to have to replace your producer at some point, but yeah, I'm going to be the, I'm going to be the worst. I'm not going to care about anything in 2065, man.

I'm just going to be on here. I feel like the stand, the radio standards over the airways will be different. We'll be able to curse freely. It'd be the wild West man. 2065, man. I, who knows, man. Well, we still even been using chairs. We'll be in here with our robot companions, man. It'll just be, it'll be into your brain by that time.

We won't need the medicinal advancements. I think we're going to be in great shape, man. What was it? What was, uh, what was it in Ricky Bobby, or he thinks he can live to be 300. Cause he's like, yeah.

Big heart or something. Yeah. I like that, man. Well, well, we got mystery questions today. We'll touch on a lot of things that affect everyday life.

That's more important than pig hearts and other radio shows that we just happened to talk about. Car talk, man, Judica County. Well, you've got Josh Whitaker and Joe Hamer. They're the managing partners and pricing attorneys here in North Carolina, of course, managing partners, Whitaker and Hamer law firm. They have offices located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia and Moorhead city. And the motto is your law firm for life. If you have a legal situation, you're facing a question, possibly. You can always call the firm 800-659-1186.

That's 800-659-1186. Leave your contact information briefly what that call is about and an attorney with Whitaker and Hamer will be in touch. And as always, you can email the show info at judicacounty.com and they will answer those questions on a future program. Again, that's info at judicacounty.com.

We're back with more questions right after this. Welcome back into Judica County radio, your host, Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer law firm, practicing attorneys here in North Carolina. And the motto is your law firm for life. Offices located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia and Moorhead city.

So they have offices everywhere for you. If you've got a legal situation you're facing and you need answers to those questions, you can always call the firm. 800-659-1186. That's 800-659-1186. Leave your contact information briefly what the call is about and an attorney with Whitaker and Hamer will be in touch.

And you can email your questions to info at judicacounty.com. Josh, take it away. You know, we started out this radio show. We started out our show today telling you we were a little bit tired.

We stayed out all late, which is the which is the way you want to start out a show. Yeah, you ordered it. You really did. You came in with just a black cloud.

So explain yourself. Did a ghost just walk through here? No, that was that was that was a guy. OK, that was really throwing me off, man, because you're like acting like I thought I saw a ghost, man. No, no, it was a weird noise. Good.

It was a guy. Good, good, good, good. Carry on.

Sorry about that, man. You're sad and depressed. That's where we were going. I'm not I'm not sad and depressed. I am. I am a little bit tired.

And Joseph, I think you're tired, too. We went out. We went out partying. Yeah, it was fun times, man. Saw David David Chappelle.

What's his middle name? I wonder. Well, that's about all you can say about that, right? You can't really know, man. I mean, like any of the stories, you know. Yeah. Yeah.

They lock your phones up tight. You couldn't do you couldn't do I couldn't do his jokes, man. You can't. He's not really it's not jokey jokes. But I had a good time, man. He was funny. He's David Kari Kari. I don't know if I said that right. Weber Chappelle.

He's got four names. Very funny fellow, man. It was funny. You knew they were telling me the PNC staff was telling me that that is the I don't know if it's official, but he was telling me they thought that was going to be the most people ever in PNC for anything. Oh, wow.

I think the previous record was a Metallica concert, which I was at, and it was packed. We made the New York Times is talking about his his comments from last night. That's pretty interesting. He didn't say anything crazy. Yeah.

He called the situation in Israel a nightmare for everyone. And so they're there. Why is that news?

I don't know, man. He did say it would be there, right? Yeah, he did.

He did. He it was interesting. It was it was a long show, though. And it was on a it was on a week on Thursday. Thursday night. Yeah, it was a it was a weekday night.

So we were building up momentum. Yeah, I don't think I don't know. You're going to find me.

I'm looking over there at you, man. And now is this your first Chappelle show? Yeah. First one. First time. Yeah. I don't think I've ever seen him before. OK.

Without telling us too much. What do you think? Oh, it was good. Yeah, I thought it was really good. I thought I would I would I would call it great, honestly. And I mean, we've seen a lot of stand up comedy.

OK. And see some good, some bad, some better than others. And this was this was right at the top. Well, this is if it was the best.

But it was right close to the. His comedy is not the type of comedy is going to keep your role. And it's more of a thinking. And I laughed a lot. I laughed a lot. You seem tired then to me. I was. Have you been getting your nutrients? I don't know, man.

I might need to go for my physical. I was tired of this show, but that was late for me, man. I got a bit early. Anyway, let's answer some questions here and over there. Yeah, we're going to answer a mystery question.

There's some pep in your step. And the first question I have, this sounds like a simple question on it on its face. I do like this question.

There's a million. This is a question about trust. And I haven't asked the question yet. I'll go and ask the question. What's the and it sounds easy, right? What's the difference between a revocable trust and an irrevocable trust?

I thought you were going Jeopardy style and you were going to do the answer and I was going to have to figure out the question. So this this this person is basically he's heard these terms. He's asking, what's the difference between a revocable trust and an irrevocable trust? And there's one big difference, which I guess will be kind of obvious and we'll talk about it.

But there's not a million, literally, figuratively. There's like a million different types of trust that are put together to accomplish different things. And those trusts fall into like bigger categories. And one category is a bunch of different types of trust that can be revocable, meaning during your life, during, you know, well, the parties to a trust. I feel like I keep backtracking like different levels. I think you're doing great, man.

If I'm giving you a grade, you're getting a solid B minus right now. When you create a trust, we call you the trustor or the settler. You're the one creating the trust. There's also a trustee. That's the one who's going to be managing the trust assets. So the settler is the one who's creating the trust. The trustee is the one who's managing the trust. And then there's a beneficiary. There's three parties in the trust.

There can be more parties, but there's at least three. So basically the settler is putting property into the trustee's possession for the benefit of the beneficiaries. That's right. Right.

You got to break down. You got a settler, a trustee, and a beneficiary. And you have multiple beneficiaries, you have multiple trustees, you have multiple settlers.

But you have to have one of each. Those are the three parties you have to create a trust. And in that trust, you know, sometimes the one party, sometimes Josh Whitaker is the trustee, the trustor, and the beneficiary. Yeah. Sometimes.

Sometimes. Pretty sweet trust. Selfish. It's a selfish trust. But if that's the case and I make my trust revocable, that means at any given time I can revoke this trust. So any of the assets that are in this trust that I put in this trust, if I revoke it, they're all mine again. So it's a revocable trust. It's no Josh Whitaker thing to do, man. Now there's reasons why I might want to make this irrevocable.

All kinds of reasons that we can talk about. But if I make it irrevocable, then obviously there's going to be something that doesn't allow me to just revoke it. If I, if I create an irrevocable trust in theory, that trust is going to exist no matter what I do next. Yeah. There you go. So that nailed it. That's, that's the easy answer.

That woke you up, man. But the irrevocable trust, a lot of times you'll do those because you're sometimes you're putting assets into, into a trust that are, that are meant for beneficiaries later down the road. And you all have kind of an agreement that you're not going to revoke it because those assets need to go to those people at a certain time. And you being able to revoke it would, would ruin the trust. But there's somebody, somebody should count the number of different trust that you could have. That sounds like a project for not me.

Sounds limitless. Sounds like a project for you. So, so, so that's the, that's the difference between a revocable and an irrevocable trust. We use both of those trusts in estate plans, depending on fact patterns and who you have to provide for.

But they're good tools for an estate planning attorney. So that was our, that was our first mystery question. So hopefully everybody knows the difference between a revocable and irrevocable trust going forward. If you, somebody mentions a trust 25 years from now after I passed away and Joe stops doing the radio show, you'll remember.

I'll never stop, man. We're, remember we talked about the advancements in technology and we're bringing a robot version of you back. A hologram that's going to sit right there and be tired just like you. An AI, an AI tired.

An AI Joshua. All right. If you have any questions about trust, you can always call the firm 800-659-1186. That's 800-659-1186.

Leave your contact information. We know what the call is going to be about. It's going to be about trust and you can get some answers to your question.

And you can also email your questions to this show info at judicacounty.com. What's up next? All right. The next mystery question, uh, coming up is we're going to talk more about it. It's another difference question. Is somebody asking the difference between litigation versus mediation versus arbitration? So those are terms that you hear a lot, uh, in day to day, uh, you know, just the news and society and, and they all have a slightly different meeting, right? So arbitration versus mediation versus litigation. What are they? What are the differences?

What are the similarities? Yeah, I'll give you a, just a broad overview and, um, and then I'll let you, I'll let you keep going on it because I'm telling you, man, as you talk about these legal issues, your face just lights up. I can see the life returning to your body, man. So I think it's good. Like this coffee I'm drinking, you talking about the law is like coffee to you. So, um, at a, at a fundamental level, you know, you, we'll talk about arbitration. We'll talk about mediation. You similar in the sense that you've got parties that are coming to the table to resolve a dispute. So there's a similarity for you, um, different in the sense that when you're talking about arbitration, you're talking about, uh, you, you've got the arbitrator who is listening to the facts and the evidence, and they're going to. Essentially render their own award or judgment or verdict in, in, in, on the, on the matter. Whereas when you're talking about mediation, you're talking about the parties, they're still coming together. They're still a third party there, but they're not really issuing any kind of binding judgment.

They're not making any kind of calls. They're just trying to keep the ball rolling and keep things moving and keep both parties working towards a resolution, kind of try to find a common ground, but they can't outright just say, Hey, this is who's right. This is who's wrong. This is which direction we're going to go with this. So, yeah. And so you can have a contract. A lot of times you see arbitration and mediation. Um, you know, litigation's obviously the last step, right? Does it mean you'll have a dispute? I decided there's no other way around it. I'm going to sue him, you know, and then we were going to litigate, right?

We're going to go through discovery. We're going to have a trial. That's litigation. A lot of times you can have a contract that calls for binding arbitration or non-binding arbitration. You can have a contract that makes you go through an additional step. And the thought is that saves money and attorney's fees and time. You know, arbitration is a little quicker than litigation can drag on.

Um, and so that's where we see that a lot. We see folks who are in a dispute in a contract and they have agreed in that contract sometimes without really knowing, but they've agreed to non-binding arbitration. And so you go, there's third party, just companies that do that kind of thing. And you have a, you have an arbitrator, you guys kind of, kind of pitch your, your side. And then that arbitrator will have a decision and that can be binding or non-binding depending on the contract. But that's, that's kind of where you see arbitration, uh, come up a lot, but, um, three distinct things that come up different places in different States.

Those words kind of have different meanings depending on the court system and what they require, but as arbitration versus mediation versus litigation. Judica County radio, Josh Whitaker and Joe Hamer, managing partners, Whitaker and Hamer law firm, practicing attorneys here in North Carolina, your law firm for life. They have offices conveniently located for you in Raleigh, Garner, Clayton, Goldsboro, Fuquay Varina, Gastonia, and Moorhead City. If you're facing a legal situation and you have questions and you need some answers, you can always call Whitaker and Hamer 800-659-1186. Leave your contact information briefly what the call's about and an attorney will be in touch. Again, that number 800-659-1186. And you can always email your questions to the show info at judicacounty.com. We've got more legal questions coming up on the other side.

Welcome back into Judica County radio, your host, Josh Whitaker and Joe Hamer, managing partners and practicing attorneys at Whitaker and Hamer law firm. And if you have a legal situation you're facing, we're going to give you an opportunity to get on the phone, get on the horn, and get answers to your questions. You can call 800-659-1186. That's 800-659-1186.

Leave your contact information briefly what the call's about. An attorney with Whitaker and Hamer will be in touch. You can always email your questions to the show info at judicacounty.com.

And offices are conveniently located for you in Raleigh, Garner, Clayton, Goldsboro, Fuquay Varina, Gastonia, and Moorhead City. I'm Morgan Patrick, consumer advocate, and we are in the middle of question and answer. And next up, guys, what are we going with? Our next question is a question from a listener, and it's more of a fact pattern than a question, but it's kind of interesting.

It kind of touches on estate planning and power of attorneys, but our fact pattern is our question asker is saying that his grandmother has been diagnosed with Alzheimer's. I knew someone was either dying or going to be really sick, man. I could tell. You get this little smile when you get to talk about that, man.

All right. So his grandma is alive. She's with us. She's been diagnosed with Alzheimer's. And he's basically saying that, you know, a few years earlier, the grandma went and had an estate plan done with an attorney, and there was a power of attorney drafted. And his aunt has the power of attorney, right? So his aunt has the power of attorney. It can act for the grandma now that the grandma has Alzheimer's, and the aunt has cleaned out the grandma's checking account.

There was 50 grand in there, 50-ish, and the aunt has purportedly used this power of attorney to write this check from the grandma's account to herself for the allegation is for her benefit. And the question is, one, can she do that? That's the first question. One, can she do that? And two, what can this person do about it? Does that make sense?

Does that fact pattern make sense? Yeah, yeah, yeah, yeah. So basically, in a nutshell, Granny gives Aunt POA. Yep. Aunt robs sweet Granny blind.

What can be done? Allegedly. Allegedly.

It's our fact pattern, right? She took the money. Right. Yeah, yeah. There's no allegedly.

So, you know, let's put more facts to it. So basically, you know, she was added to the bank account probably, right? She went into the bank and said, here's my power of attorney. Here's a letter from where the grandma signed to make the aunt her agent. That's how the statute reads now, but her attorney, in fact, her agent. So there's a power of attorney, and there's probably a letter from a doctor saying, you know, poor Granny's in the advanced stages of Alzheimer's. She can no longer function, make her own decisions. And so she's got this power of attorney, and she's got this letter from the doctor, and she goes to the bank. And the bank has probably added her to the account as a POA, right, as an agent. So she can write checks. And allegedly, we'll say she's written a check to herself, wiped her out. Wiped out, yeah.

Wiped out grandma. Gotcha. And I guess the first question is, can she do that?

And in theory, It just depends, right? It depends, because in North Carolina, you know, if you're an agent, you know, I think that, you know, the default is you cannot, you can't write a check to yourself. In the absence of some specific nuanced language specifically stating that you can, you can't just gift yourself property as someone's attorney, in fact.

Right. North Carolina on the statutory short form power of attorney, there's all these powers you can initial to grant. One of those powers is making a gift, and then there's another blank that says the agent can basically make a gift to themselves. And if the aunt has a power of attorney that meets those requirements, then I think it's a steep uphill battle for your granny.

Right, right. Because she could technically do it now. That doesn't, so your agent, whoever you name, whether it's son, daughter, sibling, spouse, whoever you name as your agent, if they accept that role and they act as your agent, they have to be doing it for your benefit. This is what we call a fiduciary role, a fiduciary responsibility. So the aunt has a fiduciary responsibility to the, to the grandma here. And even if the POA technically allows her to make a gift to herself to write this check, a man's probably not going to like that one. But number two, she can't be violating her fiduciary duty. Yeah. And that's, and that's where you get into kind of a weird area, right? Because it's, it's, it's clearly stated that she has the authority to make a gift and to make a gift to herself. So you get into that area of argument, right? Like what, what, what level rises to a violation of that fiduciary duty?

Right. So if, if the, if we're to believe this fact pattern, that really, that was the grandma's life savings, right? That wiped the grandma out. Then obviously I think that would, you would, you would sue the aunt, right? As a potential beneficiary of your grandma, you'd sue your aunt and say, Hey, you're violating this fiduciary duty.

You've left her penniless to, to benefit yourself. And, uh, you know, that's, that's no good if that's what's happening. Yeah, it's no good, man. Y'all don't know why I thought of this, but you, you're going to say no. The Saw movies, are you a big fan of those Saw movies? You familiar with them? You don't even know anything about them.

Joe, you're sick. You like those movies? No, no, man, but I'm aware of them. I've seen them. Well, I'm aware that they exist. Yeah. You know what it is?

It's like people do things like- Well, obviously they're popular. How many have they made? Like five? Ten. They just did the 10th one.

They just did the 10th one. Yeah. It was like a flashback. Uh, anyways, the whole premise is like, there's the guy, he punishes people for their misdeeds, right? He does like torture and things to them, but they can get out of it. And anyways, that's the type of thing that's probably happened in this scenario, man. That's not good.

Even with the Halloween theme. And it, and it happens, you know, money, money changes people, right? Anytime you get money involved, a lot of families that can, uh, that can kind of change relationships and how, how people act here. If, if we're going to believe our question asker, then, um, then it has done something wrong. And, uh, you know, it's not really, this is where I think a lot of people that I talked to who aren't attorneys get confused, whether, you know, this is, this comes up as a criminal action or civil action. And so here, I don't, I don't necessarily think there's a criminal activity, especially if the POA allows the aunt to do what she's doing. Uh, this would be a civil, a civil action, this breach of fiduciary duty. So you're not, the cops aren't going to do anything to your aunt. She didn't steal the money. She had the authority to take it. She took it, but she did so to the detriment of grandma. So this is, this is something that you would pursue in civil court.

I think a lot of people who, who aren't in law enforcement and who aren't in the court system and who aren't attorneys, I think a lot of things seem like they might be criminal when in fact they're so yeah, the cops, the sheriff, they're not going to really care. This isn't an actionable, but the guy from saw my care, the villain saw villain. I've seen like the, um, I might've said this before, but a lot of movies that I haven't seen on Netflix, there used to be that 32nd bunny. What was that called?

It was like a little 32nd cartoon and they like did the whole movie with bunnies, cartoon bunnies. Okay. Yeah. Saw a lot of movies that way. Yeah. We got a general idea.

It's a way to ease into horror, you know, the, the short bunny flicks I get it. Yeah, for sure. It was, it was called some like 32nd bunny theater or something like that, but they had a lot of, uh, that's how I, that's how I know what happened in Brokeback Mountain. Oh, I'm sure. Yeah.

I'm sure you weren't watching that on repeat. And then, uh, then a lot of, a lot of these horror movies that I don't want to stomach for, but, uh, that was a, that was a pretty good legal question. That was a pretty, I mean, that's, that's a sad legal question, but that was a, that was a pretty, uh, pretty good one as far as like having to delve into it and figure it out.

So I was going to say, sadly, that probably happens more times than not. Well, I've said it a lot of times, man, your attorney, you're either meeting with us to plan. You're, you're either meeting us to set up, you know, a business plan or a state plan. You're, you're trying to do something to avoid problems, right?

So you're meeting with us to plan and avoid issues or to make everything easier when there are problems like death and then, then, you know, bankruptcy and things like that, or the problems on your doorstep and you haven't planned and we're trying to try to fix it. Trying to help you out. Yup.

Cause one of those is way cooler than the other. Yeah. Bad things are coming, right? That's just, that's the life we live in. Bad things are going to happen and you're either ready for them and you plan for them or you haven't and, you know, that's, that's kind of where we, we, we kind of help on both sides of that equation, but definitely we'd rather plan with you than, than have to help you pick up the pieces after something's gone wrong. Yeah. We'll do either or, but yeah, let's do the first one.

All right. Next mystery question. This is the one that's kind of a, I would say it's kind of a personal injury, negligence issue and it's not one that I see a lot in my office, but we have somebody who was backing up in a parking lot. So they're in a parking lot. I'm gonna make it a Walgreens.

Backing that thing up or like backing a vehicle up a vehicle. Okay. I didn't know if it was the, the juvenile variety. It was a bad mamma jam. It was a, it was a wedding in like 2004. Yeah. Yeah.

There are those were the days, man. They were, they were, they were in their car. They were backing up to leave a Walgreens at the same time and they looked right.

They looked at the same time. Somebody else is backing up behind them and they don't see each other and they basically like collide in the middle. They back up and do each other and you're trying to figure out who's liable. I'm surprised with you. It wasn't like, and there was a grandmother, she's dead between the cars.

Nope. This is a simple parking lot accident and these happen. And I usually there's usually, you know, people aren't getting hurt, right?

You're not moving at a high rate of speed normally. So people aren't getting injured. That's usually when attorneys get involved when there's, when there's personal injury involved. So you're looking at some property damage, probably not a lot of property damage.

Both sides are going to blame the other side. We live in a contributory negligence state where if your negligence at all, you, you, you can't recover. Um, and usually the insurance companies just kind of handle these. I mean, you can, you can try to argue this, but usually, um, this is not one where your insurance company is going to, is going to help you out. There's probably not enough damage to try to sue another person or get someone to recreate that, you know, reconstruct the accident and get an expert witness.

You're probably not doing all this stuff. Your insurance company is probably gonna just help you help you repair your damage and move it on down the road. Guys.

Can I, can I jump in and ask a question? Have you dealt with something like this before where it's happened in a parking lot and how did the police handle that situation? Cause they're usually called and they come in and they're not, I guess it's a private parking lot and two cars have bumped each other like that.

Yeah. You know, usually if the, if the police get called to that, they're, they're not always going to make a determination. They're not always going to ticket anybody, right? They're going to come see what happens. They'll draw up a report, but unless it's clear to that police officer or, you know, they're not going to make a termination of, of whose fault it is. That's not really their job. You know, if the law has been broken, they're going to failure to yield, right? Speeding. They'll do all that, but they're not going to arbitrate who's whose fault it was.

Ah, like how you brought that back. Arbitrate. Yeah.

Uh, that's skill. So they're, they're not, they're not, they're not typically going to get involved in that. They're just going to kind of report what happened, draw it up and, and kind of basically say what happened. And it's kind of up to insurance companies and, and, and people to figure out what they're going to do. But a lot of times the insurance companies that's, that's something they're used to just dealing with. And you know, there's a second question. Does that make your insurance go up? Well, you know who, but if you sue, if these two people got mad enough to sue each other, how are you going to figure out who's at fault, right?

They both didn't see the other person as long as neither of them were doing anything illegal. It's just, it's just one of those things, or maybe, you know, two people are at fault, right? You're both, it's just, it's just one of those things. And we get that call every now and again and again, attorneys usually only get involved when there's personal injury involved or damages are high enough to justify attorney's fees. Uh, but I think that one's just going to be one that you kind of just have to take, take a lump on. I think people say, yeah, they say that you say, you say it, you just brought it back. It's going to be the popular saying, take your lumps.

Take your lumps and move on. And that's exactly what we're going to do on Judica County radio, Josh Whitaker and Joe Hamer, managing partners and practicing attorneys here in North Carolina and managing partners at Whitaker and Hamer law firm. And again, uh, offices conveniently located Raleigh, Garner, Clayton, Goldsboro, Fuquay, Varina, Gastonia, and Morehead city. If you've got a legal situation and you need some answers to those questions that you have, you can always call the firm, 800-659-1186, leave your contact information briefly what the call is about, and an attorney will phone you back again, 800-659-1186, and you can always email your questions to this show, info at judicacounty.com, and we'll answer them on a future broadcast.

We've got more question and answer coming up right after this. Judica County radio, your hosts, their attorneys, and they're at Whitaker and Hamer law firm. They're actually the managing partners and practicing attorneys here in North Carolina.

I'm speaking of Josh Whitaker and Joe Hamer, and they've got offices located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Varina, Gastonia, and Morehead city. I'm Morgan Patrick, consumer advocate. Each and every week, it's always legalese. We get into these topics.

We get into these questions. You're going to have questions of your own. You can always get answers to those questions by calling the firm Whitaker and Hamer, 800-659-1186, leave your contact info briefly what the call is about, and an attorney with Whitaker and Hamer will be in touch. Again, the number 800-659-1186, and you can always email your questions to the show info at judicacounty.com, and we're back to the questions, Josh.

All right. Well, this one's more of a juicy fact pattern than a question, but this comes up a lot in our practice, a lot of different ways, but basically we've got someone, their question is they bought a second residence, right? So they bought a house, beach, mountains. They bought a second home that they're going to, their plan is to Airbnb the property when they're not there, and they bought the house. No restrictions online, we talk about covenants and we'll talk more about those, but the HOA has nothing on record saying that you can't do an Airbnb. The city, town, county, they don't have any restrictions on Airbnb-ing your property, and now that they're there, they've had a tenant. The tenant has been approached by the HOA president saying that it is not allowed, but they need to leave, and then our folks have gotten a violation letter from their HOA saying you cannot offer this house as a short-term rental and there's going to be some fines and that's where we are. So our folks have this house that they need to rent out when they're not there to make payments and make this a profitable arrangement. There was no restrictions on public record that this was not allowed, and now the HOA is trying to tell them after the fact that they can't do this.

Have you seen the movie Saul? No, man, that's not appropriate in this situation. Yeah, man, that's not how HOAs work. This is what I'll say about HOAs. Their authority when justifiably founded, meaning that there are recorded covenants that prohibit activity, their authority is very real, and they have enforcement mechanisms that are very real, and a lot of people don't believe in that. They're like, HOAs are fake, man, and there's people that don't respect HOAs and they don't pay their HOA dues and they don't think anything's going to happen to them, and then they get literally foreclosed on by their HOA over like $200 of HOA dues.

That's a thing that can happen. So HOAs have very real authority, but that authority has to be based in some actual restriction that is recorded on public record. They can't just make them up as they go along in the absence of some kind of amendment to existing covenants. So in your fact pattern, Joshua, they can't do this.

No. And like Joe said, me and Joe decide we got a nice 100-acre tract. We decided to make it a neighborhood and we own it, and Josh and Joe LLC, a lot of times what we'll do is like, hey, we want all these lots to be one acre and we want one house per acre, and this house should be two stories and at least 3,000 square feet, and you can't have a satellite dish or solar panels.

We'll make all these rules and we'll have those rules. While we own the property, we record covenants and we say, hey, this is our 100 acres, these are our rules, and if you buy a house from us or you buy a lot from us or you own this property after it, this land is going to be restricted. That's why you see a lot of people get really excited when like a 40-acre piece of land goes on the market and it's unrestricted.

Oh yeah. Yeah, you can do whatever you want there. So a lot of property, especially around Raleigh and Charlotte and bigger cities is restricted in one way or the other. You can't have chickens, one house per lot, can't pay your house pink, fence has to be approved by architectural review committee, so you have all these rules and that's public record and you should know those rules before you purchase the property.

That's right. A title search, an attorney would pull that up and say, here are your covenants and be aware of it. And then certainly there are some communities where they do not allow a short-term rentals and it's right there in the covenant saying, hey, we don't allow it, so if you do it, you would be wrong, right?

So if you bought that property and you just didn't happen to see that or you didn't know or you weren't told, none of that matters. If it's actually in the covenants, if it's a restriction on the property, then arguably you wouldn't be able to Airbnb your property, but here that wasn't done and they're just kind of trying to say it after the fact and that's happening a lot. There's a lot of Airbnb, a lot of people are big fans, a lot of people make a lot of money off of it.

It's a lot nicer than staying in a hotel in my opinion when we travel, but some communities, right? Especially neighbors, like if the Airbnb is your neighbor and it's a party house, they don't like it and so some HOAs have tried to stop that. But really the only way you can do that properly is to look at your covenants. The covenants would tell you how you change covenants and then you have to have a meeting, have a certain number of votes, usually a super majority and your HOA has to put it on record.

We voted a majority, super majority voted to ban Airbnb, short-term rentals and put it on record and then people who buy houses after that would be subject to that restriction. But that's not what happened here. You made a good point too, man.

There's the distinction, right? We talk about the fact that if there's no restriction period, then nothing can be done. But if there is a restriction and you just didn't see it, right? Or God forbid your attorney didn't see it and let you know about it, then that's on you. You're bound by what's on public record and you're going to be stuck in that situation.

You can't claim ignorance to something that is on public record and use that as a defense to doing the thing. This started a while ago and then right now it's short-term rentals, but there's a lot of neighborhoods where everybody who lived there, lived there full time and some neighborhoods kind of become rental neighborhoods where a lot of people move away and then they rent their houses. Some subdivisions 15, 20 years ago were trying to make it so that you couldn't rent your house for more than a certain amount of time. If you owned a house, they wanted you to live in the neighborhood. So sometimes there's not a lot of those neighborhoods around, but you'll run into those neighborhoods where they don't really want to allow any rental.

And then of course the short-term rentals has brought that issue to the forefront again, because I've had some clients whose neighbors, Airbnb, the house next to them, the condo next to them, what have you, and it really affects their life negatively. But I guess a lot of times it probably doesn't. Anyway, to change covenants is usually not easy. If your covenants are there, everybody's bought their real property for years and years, years based on these covenants, based on these restrictions. And to change it usually requires a meeting, everybody getting notice of what the meeting is about.

And then you usually need a super majority vote to amend or change covenants. And that ain't easy in most neighborhoods. That's true, man. That's the thing. I don't think 55 people living together in one neighborhood would all be like-minded and be able to agree, but I'm here to tell you, spoiler alert. That's not the case, man.

That was a good question. That's something that comes up a lot nowadays and something that we see a lot of. So if you're going to buy property to rent it, you need to make sure it's okay to rent it. It's allowed. And then even further, if you're going to Airbnb it, you got to make sure there's no restrictions.

And your attorney, your closing attorney, your real estate agents, they can look at that stuff for you. But that's something to keep in mind because there's some restrictions out there. But that is, I think that's a fine mystery question. I think it was too, man. I think it was pretty good.

I think that's one of the five best ones we've done today, top five easily. And so many of us, as you mentioned, Josh, have really started to look at Airbnbs over hotels when we do travel and more and more people are putting Airbnbs out there. And so it's right on point. A lot of people are looking at these different situations and the HOAs and people are concerned so they have to find that even ground or if they can't stop them, they can't stop them. But if it's not in the HOA, it's going to be tough to keep them from doing it.

And of course, I guess they could meet and vote on new laws, but I guess the existing Airbnb would be okay. Am I correct in saying that? Yes.

All right. When we come back on Judica County, we will wrap up the show. Josh Whitaker and Joe Hamer, managing partners Whitaker and Hamer Law Firm, offices located Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia, and Moorhead City. If you've got a legal situation, you can always call the firm, 800-659-1186. Got a question?

Need an answer? Call the firm, 800-659-1186, leave your contact information briefly what the call's about and an attorney will be in touch. You can always email your questions to the show, info at judicacounty.com. We're back.

We'll wrap it up right after this. Welcome back in to Judica County Radio. Your hosts are Josh Whitaker and Joe Hamer, they're the managing partners, Whitaker and Hamer Law Firm, practicing attorneys here in North Carolina, and the motto, your law firm for life. They've got offices conveniently located in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, and Gastonia, as well as Moorhead City. Again, if you've got a legal situation you are facing, you can always call the firm, 800-659-1186, leave your contact information briefly what the call's about. An attorney with Whitaker and Hamer will be in touch. Again, the number 800-659-1186, and you can email your question to the show. We'll answer it on a future broadcast.

That's info at judicacounty.com. Gentlemen, final segment. Well, I got another question queued up, Joseph.

That's good, man, because we've got time to still fill, so that warms my heart. So this question asker is, he is buying into an existing business, right? So he's coming into an existing business, we're going to say it's an LLC. So it's an existing LLC, and he's coming in, he's buying into it, and he's basically just asking, basically, what does that mean? What do I need to do to buy into this LLC? That's his question.

Yeah, so I feel like this is the answer to every question, man, but it depends. So when these guys created their LLC, they're already in business, they've already created an LLC, and LLC is not like a corporation. Usually, you don't have shares, and in an LLC, there's membership interest, and there's 100%, right? There's 100% membership interest. So if I open Josh LLC, and I'm the only member, I'm the only owner, I've got 100% membership interest. Here from our fact pattern that our question asker gave us, there's two current owners, we don't know how they own their business, how would we know how they own their business? We would look at their operating agreement, that would be a good starting place for us.

That's right. We have a lot of people come to us, and we're doing some business planning, and they're like, we need to start an LLC. And they're like, okay, I'll go down to Secretary of State's, I know how to do that, I just fill out a form. And filling out a form at the Secretary of State's office, it's called Articles of Organization, it's a very simple form, you can fill it out. And that starts your LLC, that gives you your shell, but your LLC is actually defined by your operating agreement. And so here are these two fellows who opened a business and have an LLC, they'll have an operating agreement, where they agree with one another on how to operate their business, I would imagine they each have a 50% membership interest. So this person buying in would first need a contract, it would first need an agreement saying, hey, I'm coming to work for you guys, I'm gonna get paid this in exchange, you're going to give me a certain, we'll say they're going to be a third, right, we're going to be a third, I need a 33 and one third percent membership interest. And this is where it's just like a house, this is where we're going to close, this is what I'm going to give you, pay you, do, this is my consideration. So there needs to be this LLC, first of all, needs to have an operating agreement. So we know because there's also restrictions and these operating agreements, right, they might have a restriction saying they have to do certain things before they could sell a membership interest.

So we need to make sure all those things are done. This gentleman needs an agreement on exactly how this is going to be when and how this is going to be transferred. And then at some point, this membership, there's only 100% interest and if they own 50 and 50, they're each going to have to sell a fraction of their ownership, 33 and a third percent, divide that by half.

What is that? Look, I didn't come here to do math brother, I came here to do law. Math talk. Not math law. Yeah, math talk.

God, talk about a show, man. So each member is going to have to sell roughly 16 to 17% interest. Let's just say some amount of their, yeah, they're going to have to sell some of it. To this guy and then there'll be a closing and there'll be documents signed and that's how you evidence that they would enter a new operating agreement usually.

But that, you know, it sounds simple, right? I'm buying into this business and then you have to ask all these questions. Well, this is business, who owns this business, how does this business run?

How do they sell? And it's kind of like when we talk about leases, it all goes back to the lease. This would all go back to the operating agreement.

It would tell you exactly what needs to happen and if they don't have enough, we find that a lot, we know we'll be dealing with an LLC and we'll be like, Hey, where's your operating agreement? And they won't have one. And we say, we got to get you one. Yeah. I was like, you got to get you one of those. You got to make one.

You got to start one. Yup. That's right. Otherwise you don't really know what you're dealing with. You just have this shell that you started down in the Secretary of State's office. Yeah. That's a good answer, man.

A good answer for a good question. But anytime you're going to do something like that, you need to get an attorney involved. This guy follows up his question by asking if he can, is there a template that he can get online?

That's the second part of his question and attorneys aren't big fans of templates because templates are one size fits all. And, uh, especially for something like that, that ends up being a decently complicated transaction. There's a lot of pitfalls.

Yeah. There's a lot of questions to be, to be asked a lot of, uh, due diligence, dude, dude, diligence to be performed. Um, and depending on the size of the company, you know, if, if the company is a $50 million company with a lot of different assets and a lot of different States, these, uh, these mergers, these acquisitions, they can, uh, you know, and there might be, there might be some reasons, uh, for starting a, just starting a brand new business, maybe buying into the existing business. Once you ask all the right questions, maybe there's some liability there you don't want.

And it might make more sense for a new LLC to purchase the assets of the old LLC. Oh, now you're, now you're cooking brother. Yeah. So you're cooking. So, but, but laying this out in front of an attorney saying, Hey, this is what I want to do. An attorney can ask you the right questions and was like, is this really what you want to do? Or do you really want to do this? If you just didn't, those are what my consults are, man. He's just like, do you really want to do this? I just keep getting higher and higher, but, um, that's where any good professional, right?

A good real estate agent, a good accountant, a good CPA, a good attorney, you're going to go to them and say, Hey, this is what I want to do. And they're going to tell you a good way to do it, or at least some, some things to think about. And then you might end up making the final decision, obviously, like what's, what's best for you in the long run. But it's a lot of pitfalls out there. Yeah.

A lot of pits, man. I kind of like Joe's method where he just raises his voice. It works, man. And then people walk out and they're just like, wow, my life has changed. Our ratings with the dog community just went way up because it's like a dog whistle. It's like, we should do that, man.

Dogs in the background have like an inaudible to humans whistle and people, my dog loves this show. But that's, that's this would be, we've got what we call business planning and right. So this is like, this guy's obviously putting his time and his energy and his money into a, to a preexisting business. There's some, some questions and some, some due diligence, but, um, You said Josh LLC. That was the name of the company in your fact pattern. I want to know what Josh LLC does. It sells cots. I was thinking, I don't know why, man, but I think it sells tighty whitey underwear for older men who are very tired today.

That seems like the play you ever see those, you ever see those hotels and like, it's always like Japan, I think, but there's like, it basically is like a bus locker, but it's big enough for you to get in there and lay down. Yeah. Yeah. They got those. Yeah.

It's like a buck. And you just take a nap. Yeah. Yeah. I like that. We need more places where you could just take a nap.

How do you turn Shady's into that? Yeah. What do you have? Do you have nap pods at the firm? And at any of the offices we're going to get in our offices, I mean, I'm on our employees taking naps necessarily, but us, yeah, that's just, you know, in an office, it just a cot, right? Yeah. Just the cot.

Yeah. Bring back nap time. I used to have in kindergarten. I used to work for this. I used to work for an attorney who had a, he had like, he had a good size office, you know, it was his building and, and he had the main office, he had his office and he has little closet, little closet. It looked like it was barely not even big enough to be a coat closet, but then you opened it and it was a bedroom because he worked, you know, he worked so much like Narnia and the bedroom was bigger than the office, but like you didn't, you, you wouldn't have known.

That's what it was. Why'd you never tell me about that? That sounds awesome. I just thought about it. It sounds like a dream.

Coming to an office of Whitaker and Hamer soon. It'll be the Narnia closet and it'll be your, your, your ability to take naps. Well guys, yeah. Get, get squealed at and then take a nap. That's what we give you.

Well, another great show in the books. A lot of great questions answered and debated and people are going to have their own set of questions with their own situations and you can always call Whitaker and Hamer 800-659-1186. That's 800-659-1186. Leave your contact information briefly.

What the call's about. An attorney with Whitaker and Hamer will be in touch. You can always email your questions to this show, info at judicacounty.com. We'll answer them on a future broadcast, but Josh Whitaker and Joe Hamer, you've got offices all over the place. Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, Gastonia, and Moorhead City and remember the motto, your law firm for life. So remember that and if you have your legal questions, you can always call the firm 800-659-1186. For Josh and Joe, I'm Morgan Patrick. We'll see you on the radio next week. Thank you.
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