In Rhode Island (RI), owners of small businesses and rental or investment real estate should form a Rhode Island Limited Liability Company (LLC) to own and operate the business or real estate. The most important reason for establishing a Limited Liability Company (LLC) is that the owners of the Limited Liability Company, who are referred to as Members, are not liable for the debts of the company. Article by David Slepkow (401-437-1100)

This limited liability feature is important if a company is not able to pay its bills or if there is a lawsuit for damages or personal injuries resulting from the activities of the company or the ownership of its properties. It is advisable to hire a Rhode Island business and corporate law lawyer/attorney to set up the LLC. Many attorneys will not only organize your LLC but will also file your annual report on a yearly basis.

The limited liability feature also applies to Rhode Island corporations, however, the significant difference between a corporation and an LLC is that a limited liability company does not pay income taxes on its profits as a corporation is required to do. Rather, if there is only one member of the limited liability company or if the members are husband and wife, the limited liability company will be disregarded for tax purposes and the income or losses of the company will be reported on the member’s tax return. If there are members of the limited liability company who are not married to each other, the limited liability company is treated as a partnership and, again, there would be no taxation of income on the company level, but profits or losses would be reported on each member’s tax return as gains or losses from a partnership.

Forming a Rhode Island limited liability company (LLC) requires that the following be done:

1. Select a name for the company and confirm with the Rhode Island Secretary of State’s Office that the proposed name is not being used by or similar to another Rhode Island limited liability company.

2. Draft and file with the Rhode Island Secretary of State the Articles of Organization of the limited liability company. The current filing fee is $150.00 payable to the Rhode Island Secretary of State.

3. Prepare an Operating Agreement which will establish the rules for management of the limited liability company. The Operating Agreement may provide for a manager who typically is one of the members and is empowered to operate the company. Many limited liability companies, especially if they are owned by a single member or a husband and wife, are member managed, meaning that there would be no named manager, but that in fact the company would be operated by its members. The Operating Agreement would also contain provisions as to who is authorized to borrow money for the company, sign deeds or bills of sale, and do other actions which are not part of the day-to-day operation of the company. Typically, these types of actions require the consent of all the members.

4. Obtain a Federal Identification Number from the Internal Revenue Service. Although, there is no income tax due from the company, a Federal Tax I.D. Number is required in order to file the Rhode Island Division of Taxation Pass-Through Income Tax Return and would be necessary if the company has any employees. There is a minimum Rhode Island fee due to the Division of Taxation for each limited liability company in the amount of $500.00 per year.

5. Each year, a limited liability company must file an Annual Report. Currently, a fee of $50.00 is payable with each Annual Report.

It is important that all residential or commercial real estate owned by the LLC be transferred by deed to the limited liability company. The real estate deed should be prepared by a RI lawyer.

A limited liability company will not relieve an individual member from personal injury liability for their own actions or negligence. The general rule is that individuals are always responsible for their own negligence. However, an LLC will protect an individual member from facing personal liability for the negligence of employees or other LLC members.

There are certainly costs involved in establishing and maintaining a Rhode Island limited liability company (LLC). The advantages of a limited liability to its members in the case of debts of the company or lawsuit especially personal injury lawsuits such as premises liability and slip and fall far outweigh the costs involved.

Many people struggle to clear their debts. They often have a hard time with creditors to whom they owe money. In such a scenario, people take the help of a bankruptcy attorney. They give legal counseling to the people, who are struggling with debt related issues.

A Brief Preface on Bankruptcy attorneys

Bankruptcy attorneys have many years of experience in the field of law. The law firms represent people and businesses in the court. They also deal with consumer law, real estate issues, family law, wills and estates, financial distress, bankruptcy, business law, criminal law, personal injury, administrative law and litigation. Many of these law firms have attorneys who are capable of handling cases in state courts as well as federal courts. Bankruptcy law is one of the areas of law that these firms handle.

How Does It Work

Filing for bankruptcy helps to clear the debts. Once a person files for bankruptcy, the creditors and debt collectors cannot take action against that person to collect their debt.

Many people file for bankruptcy and stop repossession actions like mortgage foreclosure and wage deduction. There are different chapters under which a person can file for bankruptcy. The advice of a good attorney is crucial for understanding these various legal rules. Nonetheless, filing for bankruptcy is not suitable for everyone.

3 Types of Bankruptcy Attorneys

There are many types of attorneys but these three are most important:

Seasoned Lawyers – The seasoned lawyer represent the case of the victims and advice them on whether they should file for bankruptcy or not. The constant help of a seasoned lawyer is also needed to prepare the pre-nuptial and post-nuptial agreements. Their help is often taken in matters involving spousal maintenance cases and post decree motions.

Family Lawyers – This type of lawyers involve in a whole range of issues like divorce, separation, and child custody and child support complications. The help of a good lawyer helps to make the process quick and stress free. They can gather personal information including details on assets and debts and to tailor a divorce plan that fits the needs of the patrons.

Criminal Lawyer – Whenever somebody is behind bars or charged with a crime, the first place they turn to is usually a good criminal lawyer. Facing criminal charges can cause stress and uncertainty not only to the person concerned, but also to his family. A good criminal defense lawyer is necessary for proper guidance and legal representation in a criminal case. They handle a huge range of offenses like felony, misdemeanor and driving under influence. They also take on cases of a more serious nature like robbery, manslaughter, drug possession, sexual offenses, and white-collar crimes. Irrespective of the nature of the crime or the seriousness of the offense, it is always a good idea to engage the facilities given by a good lawyer. They can help their patrons find their way out of even the most complicated issues.

Did you know that the number one complaint against personal injury lawyers is that they don’t communicate with their clients? Many people have complained time and time again that their attorney will not return their call. Imagine the anxiety of an injured person when the questions about the lawsuit go unanswered. Imagine how the injured person feels if they don’t know how they’re going to pay the bills. Choosing the right attorney you can trust has experience and will work zealously on your case is a must not only for your peace of mind but also to winning your personal injury claim.

One of the best ways to find a good personal injury lawyer is by recommendation through close contacts like friends and family. Understand that a recommendation should be to an attorney who specializes in personal injury litigation. One common mistake that many people make is to choose a lawyer that specializes in every field. There is a great deal of competent attorneys specializing in personal injury so choosing one that is not a specialist would be a mistake.

A bad way to pick an attorney is by the recommendation of someone you first meet at a scene of an accident who magically appears at the accident scene and is ready to give advice. These types of people are called “ambulance chasers” and should not be trusted.

Another great way to pick a personal injury lawyer is to check with your local bar association to see whether your attorney has a good reputation or not. Be advised that some bar associations are not permitted to recommend attorneys.

Legal journals are another great tool you can use in your arsenal to finding a great personal injury attorney. These publications can be found in your local law library or through the bar association. These journals provide facts on many cases with the names of lawyers and the outcome of the case. Who knows you might find a case similar to yours in which it turned out favorably for the plaintiff.

Attorneys refer one another if for whatever reason they cannot represent you. A referring attorney is ethically bound to refer you to someone who will zealously pursue your case. Be careful though as attorneys generally get a referral fee and sometimes a referred attorney will want to work less on your case if he /she knows that part of the settlement is going to the first attorney. This is why it is important to exercise your right to know where your money goes and to whom.

The Yellow Pages are filled with ads of personal injury lawyers. Picking one can sometimes be difficult as you really don’t know anything about them besides what is on the advertisement. If you do decide to choose a lawyer in this way just understand that personal injury lawyers almost never charge for the initial consultation so it would be wise to interview as many as possible before you sign a fee agreement.

An accident can be a very traumatic event and unfortunately, insurance companies deny claims for practically any reason at all. That is why it is vitally important that you understand the importance of the actions that you take at the scene of any accident. Choosing the right lawyer to represent you can determine whether the injured victim receives fair and prompt compensation.

Mortgage fraud is problem that has reached epidemic proportions in the United States (US) in general and in South Carolina (SC) in particular. The white collar practitioner should be aware that mortgage fraud is generally investigated by the United States Federal Bureau of Investigation (FBI), although other agencies routinely assist the FBI and/or take the lead in investigating a case. Some of the other federal agencies which investigate mortgage fraud crimes for criminal prosecution include, but are not limited to, the Internal Revenue Service-Criminal Investigative Division (IRS-CID), United States Postal Inspection Service (USPIS), U.S. Secret Service (USSS), U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Housing and Urban Development-Office of the Inspector General (HUD-OIG), Federal Deposit Insurance Corporation-Office of the Inspector General (FDIC-OIG), the Department of Veterans Affairs-Office of the Inspector General (DVA-OIG) and U.S. Bankruptcy Trustees.

The FBI works extensively with the Financial Crimes Enforcement Network (FinCEN). FinCEN is a bureau of the United States Department of the Treasury, created in 1990, that collects and analyzes information about financial transactions in order to fight financial crimes, including mortgage fraud, money laundering and terrorist financing. The FinCEN network is a means of bringing people and information together to combat complex criminal financial transactions such as mortgage fraud and money laundering by implementing information sharing among law enforcement agencies and its other partners in the regulatory and financial communities. South Carolina lawyers can keep abreast of mortgage fraud developments by visiting the respective websites of the FBI and FinCEN.

In South Carolina, mortgage fraud is generally prosecuted by federal prosecutors. The United States Attorney’s Office (USAO) and the U.S. Department of Justice’s (DOJ) Criminal Fraud Section handle the criminal prosecutions of mortgage fraud cases. The USAO in South Carolina has about 50 prosecutors in the state, and has offices in Charleston, Columbia, Florence, and Greenville. In the investigation stage, a person with possible knowledge or involvement in a mortgage fraud may be considered a witness, subject or target of the investigation. A subject is generally a person the prosecutor believes may have committed a mortgage fraud crime, whereas a target is a person the prosecutor believes has committed a crime such as mortgage fraud and the prosecutor has substantial evidence to support a criminal prosecution. Criminal prosecutions of mortgage fraud felony cases are usually initiated through the federal grand jury process. A federal grand jury consists of between 16 and 23 grand jurors who are presented evidence of alleged criminal activity by the federal prosecutors with the aid of law enforcement agents, usually FBI special agents. At least 12 members of the grand jury must vote in favor of an indictment charging mortgage fraud. South Carolina criminal defense lawyers are not allowed entry into the grand jury at any time, and prosecutors rarely fail to obtain an indictment after presentment of their case to the grand jury.

Often targets of a mortgage fraud prosecution are invited by the prosecution to avail themselves of the grand jury process and to testify in front of the grand jury. Generally, a South Carolina criminal defense attorney should not allow a named target of a federal criminal mortgage fraud investigation to testify before the grand jury. Subjects and witnesses in a mortgage fraud prosecution are often subpoenaed by the prosecutors to testify before the grand jury. A criminal defense attorney should likewise generally advise a witness or subject to not testify if any part of the testimony would possibly incriminate the client. With respect to a federal mortgage fraud investigation, when a citizen receives a target letter, subject letter, or a subpoena to testify before the grand jury, or is contacted in person by a law enforcement officer such as an FBI special agent, a South Carolina criminal lawyer who is experienced in federal prosecutions should be consulted immediately. One of the biggest mistakes a mortgage fraud target, subject or witness can make is to testify before the grand jury or speak to criminal investigators prior to consulting with a criminal defense attorney. The 5th Amendment to the Constitution allows any person, including a target, subject or witness in a mortgage fraud prosecution, to not incriminate himself or herself. Interestingly, there is no 5th Amendment protection for a corporation. Obviously, if a defendant has been indicted or arrested for a federal mortgage fraud crime in South Carolina, an experienced SC mortgage fraud lawyer should be consulted immediately.

An important practice tip for South Carolina attorneys representing clients who have decided to testify before the grand jury is to accompany the client to the grand jury court room. While not allowed in the grand jury proceeding itself, the attorney can wait just outside of the court room and the client is allowed to consult with the attorney for any question which is posed to the client by prosecutors or grand jurors. This is an effective way to help minimize any potential damaging statements by the client, and a great way to learn the focus of the prosecutor’s case. This approach makes it much easier to gain insights from the client as to the questions asked during the grand jury proceeding as opposed to debriefing the client after a sometimes long and grueling question and answer session which can last for hours.

South Carolina white collar criminal attorneys need to be aware of the types of mortgage fraud that are prevalent in the state in order to effectively identify and represent clients who are involved in mortgage fraud activities. Consumers need to be aware of the variations of mortgage fraud so that they do not unwittingly become a part of a scheme to defraud a bank or federally backed lending institution. Federal mortgage fraud crimes in South Carolina are punishable by up to 30 years imprisonment in federal prison or $1,000,000 fine, or both. It is unlawful and fraudulent for a person to make a false statement regarding his or her income, assets, debt, or matters of identification, or to willfully overvalue any land or property, in a loan or credit application for the purpose of influencing in any way the action of a federally backed financial institution.

Criminal defense attorneys are those people who defend accused criminals in the court of law. They are the ones that speak in behalf of the accused party, so that they could well defend themselves. Criminal defense attorneys are sure to have the toughest profession. Their performance on the court could mean a man’s freedom or a sentence in jail.

In New Hampshire, most criminal defense attorneys would gladly handle your criminal case, should you go to their offices and submit your case details. To give you an overview of what criminal defense attorneys handle, these are:

1. Driving Offenses. Driving offenses goes by the name of DUI which means driving under the influence (of alcohol) or DWI meaning driving while intoxicated. There are different driving offenses, and each case should be reviewed thoroughly. There is what’s called DUI with accident or DUI with injury.

2. Hit and Run. This is also, more or less, related to a driving offense as it happens in the road too. But in a hit and run case, defendants do not necessarily have to be under the influence of liquor. A hit and run case is simply, hitting a person with car and not answering to that offense right there and then.

3. Drug Offenses. There are different drug offenses a person can be accused of. Charges and penalties could vary if one is accused for possession, for transportation, for selling, or for merely using drugs. Just the same a person who is involved with illegal drugs is sure to need a good criminal defense attorney to defend him.

4. Crimes of Violence. In general these are crimes that are inflicted to another person due to rage, insanity, or other reasons. And this usually results to physical injury or even death. Examples of crimes of violence are assault and battery, among others.

5. Weapon Charges. Any person caught in possession of a firearm with no proper documentation is punishable by law. Therefore, he is going to require the services of a good criminal defense attorney to represent him in the court. He would have to show that his firearm is duly registered and regulated. Or, he can plea otherwise, depending on his lawyer’s strategy.

6. Property Crimes. Crimes against somebody else’s property are punishable by law as well. There are set laws protecting individuals of arson and vandalism, which are good examples of property crimes. These cases are handled by a criminal defense attorney.

7. Sex Offenses. This is a major offense. Sex offenses such as rape and incest could even mean life imprisonment. Sex offenses are usually the hardest to defend, as it emotionally breaks down both the accused and the plaintiff.

8. Juvenile Cases. A juvenile case involves a minor. Given the situation, a minor has more protection under the law as compared to a person 18 years and above. Because of this provision, juvenile cases need special attention. A good defense attorney is a must.

9. Domestic Violence. The family could also be a victim of a crime. This is a sad truth. Spousal abuse is under this category. Protective court orders, and at times even children custody, are handled by your criminal defense attorneys.

New Hampshire is a state that still has death penalty being enforced. It is a must that for every criminal offense you are accused of, may it be true or not, you’ve got to hire only the best attorneys. Else, your life would change with a single decision from the jury.

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1) What is title insurance? How much does it cost? Should I buy it?

Owner’s title insurance protects the Buyer of a property against undiscovered liens or defects in the title prior to the time of purchase. Title insurance insures the record title and protects an owner of property from losses arising from defects occurring prior to the date of the policy. Therefore, it differs from other types of insurance because it is retrospective in nature. It also differs from other types of insurance because there is only a single premium charge for title insurance, but the protection lasts for as long as you own the property. There are different title insurance policies which protect both owners and lenders. Lender’s title insurance performs the same purpose, but only for the lender in a transaction. The fee is typically about $2.50 per $1000 for lender’s coverage and $3.50 per $1000 for owner’s coverage. Lender’s insurance is required and you are strongly encouraged to purchase owner’s insurance for numerous reasons. If you have any questions in this regard or have been given advice that owner’s insurance is not necessary, please contact one of our attorneys to make an informed decision.

Since one’s home is usually the single biggest financial investment, it is highly prudent and wise that a homeowner would want to protect that investment and enjoy the benefits of ownership. An owner’s title policy is that protection.

2) What type of claims are covered by Owner’s Title Insurance?

The owner’s title policy insures against loss or damages sustained by the owner by reason of historical discrepancies such as forgery, undisclosed but recorded prior mortgages, bankruptcies, liens or divorces, deeds not properly recorded, missing wills or heirs, and inadequate property descriptions.

3) Why do I need an attorney for a closing?

An attorney should always be present at a closing to answer legal questions and to resolve disputes. Most lenders require the presence of an attorney at all closings. At our firm, all closings are always conducted by an attorney. In Rhode Island, the buyer has the right to choose the attorney to handle the title search. You should always insist on an attorney instead of a title company, as we will help to resolve the problems which arise, and will not limit our scope to merely searching the title.

4) When do I get my proceeds as a Seller?

The Seller will be given the proceeds from the sale after the deed has been recorded. In our office, we always record the documents the same day if the closing occurs before noon, and within 24 hours of closing in any event, barring weekends and holidays.

5) What happens if the house is not ready for me to move in on the day of closing?

If the house is not in the proper condition to move in at the time of closing, you will need to consult with an attorney. At our firm, if we are handling the closing, we will always strive to help the buyer with the predicament. Options include postponing the time of closing, giving a buyer credit, or escrowing funds from the seller until the property is in the proper condition.

6) Where does the closing take place?

The closing will occur at the attorney’s office for the buyer. Occasionally, the closing may occur at the lender’s office or a real estate agency, but the vast majority close at the attorney’s office.

7) What form of money should I bring to the closing?

Buyers should bring a bank check or certified funds to closing. If one of these options is not available, buyers should make arrangements to wire funds directly to the closing attorney at least one business day prior to the day of closing. If verifiable funds are not present at the time of closing, the recording of the documents will be delayed and the buyer may not be able to move into the new home. Personal checks or cash are acceptable in nominal amounts up to a maximum of $1000.

8) What other obligations are there as a Seller of property?

The seller is obligated to produce a Smoke Detector and Carbon Monoxide Detector Certificate at the time of closing. To obtain a certificate, the seller or its agent must contact the fire department for the municipality in which the property lies to conduct the inspection.

9) Will I receive a survey of the property at the closing?

No. In Rhode Island, lenders do not require surveys. Unless the buyer requests a survey, no one will physically verify the boundaries of the property. In Massachusetts, a lender may require a plot plan of the property which does not formally locate all of the property boundaries, but it does locate the house in particular vicinity within the boundary lines.

10) Will I receive an appraisal of the property at the closing?

You are always entitled to a copy of the lender’s appraisal if there is a lender involved on your behalf as a buyer. The appraisal is often presented at the closing, or it can be requested in writing.

11) What if my property is in a flood zone?

If the property you are purchasing is in a flood zone as depicted on the government maps, the lender will require you to obtain flood insurance. You should be careful of this whenever the property is near the water as flood insurance is often quite costly.

12) Does a title search or title insurance cover zoning issues?

No. Zoning determinations are completely separate from the title to the property. If you want an attorney to verify the zoning for you, an additional fee would be required.

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Do not expect your creditors to have your best interests in mind when it comes to repaying your monies owed. Lenders are often interested in one thing: getting as much of your money as possible. A debt consolidation attorney – on the other hand – in only interested in reducing your debts as much as possible, within the limits of the law. While you may be tempted to handle your negative financial situation on your own, enlisting the help of a lawyer can bless your life in several different ways. First, legal representation gains you instant credibility with financial organizations. Second, lawyers in this field are well versed in the collection laws of your region and can use them to your benefit. Third, using a go-between can eliminate a lot of stress, freeing you up to focus on earning and rebuilding your financial future.

Credibility

Collection agents are often skilled in the art of pushing consumers around. They speak with countless individuals every year that owe money and cannot (for one reason or another) pay. For this reason, they are not likely to bend over backwards for you when it comes to negotiating lump sum settlements. Having a debt consolidation attorney in your corner changes all of this. When collection agents find that they are speaking with a lawyer, they are likely to take the matter more seriously and to give your specific case the attention and flexibility it deserves.

Knowledge

You would be wise to retain the services of a consolidation attorney in your specific region, as collection laws vary from state to state. A lawyer that understands the loopholes collection agents attempts to use in their high-pressure tactics will be able to defend you and keep you standing firm in your consumer rights. In addition, a thorough grasp of relevant legal procedure can help your attorney to negotiate better settlements with your creditors, as lenders would rather reduce your debts than forfeit them completely due to legal infractions on their part.

Representation

While it may be tempting to dive in and start swinging with your various lending organizations, negotiations can get intense and complicated. This can amount to a great deal of stress, which over time can work to reduce your overall quality of life. Retaining the services of a debt consolidation attorney will not only help to to reduce the total amount of money owed to your creditors, it will also free you up to enjoy your life in the present.

The health care fraud, bank/mortgage fraud and securities fraud practitioner should be aware of 18 U.S.C. § 1345, a law which permits the federal government to file a civil action to enjoin the commission or imminent commission of a federal health care offense, bank-mortgage offense, securities offense, and other offenses under Title 18, Chapter 63. Otherwise known as the federal Fraud Injunction Statute, it also authorizes a court to freeze the assets of persons or entities who have obtained property as a result of a past or ongoing federal bank violations, health care violations, securities violations, or other covered federal offenses. This statutory authority to restrain such conduct and to freeze a defendant’s assets is powerful tool in the federal government’s arsenal for combating fraud. Section 1345 has not been widely used by the federal government in the past in connection with its fraud prosecution of health and hospital care, bank-mortgage and securities cases, however, when an action is filed by the government, it can have a tremendous effect on the outcome of such cases. Health and hospital care fraud lawyers, bank and mortgage fraud attorneys, and securities fraud law firms must understand that when a defendant’s assets are frozen, the defendant’s ability to maintain a defense can be fundamentally impaired. The white collar criminal defense attorney should advise his health and hospital care, bank-mortgage and securities clients that parallel civil injunctive proceedings can be brought by federal prosecutors simultaneously with a criminal indictment involving one of the covered offenses.

Section 1345 authorizes the U.S. Attorney General to commence a civil action in any Federal court to enjoin a person from:

• violating or about to violate 18 U.S.C. §§ 287, 1001, 1341-1351, and 371 (involving a conspiracy to defraud the United States or any agency thereof)
• committing or about to commit a banking law violation, or
• committing or about to commit a Federal health care offense.

Section 1345 further provides that the U.S. Attorney General may obtain an injunction (without bond) or restraining order prohibiting a person from alienating, withdrawing, transferring, removing, dissipating, or disposing property obtained as a result of a banking law violation, securities law violation or a federal healthcare offense or property which is traceable to such violation. The court must proceed immediately to a hearing and determination of any such action, and may enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought. Generally, a proceeding under Section 1345 is governed by the Federal Rules of Civil Procedure, except when an indictment has been returned against the defendant, in which such case discovery is governed by the Federal Rules of Criminal Procedure.

The government successfully invoked Section 1345 in the federal healthcare fraud case of United States v. Bisig, et al., Civil Action No. 1:00-cv-335-JDT-WTL (S.D.In.). The case was initiated as a qui tam by a Relator, FDSI, which was a private company engaged in the detection and prosecution of false and improper billing practices involving Medicaid. FDSI was hired by the State of Indiana and given access to Indiana’s Medicaid billing database. After investigating co-defendant Home Pharm, FDSI filed a qui tam action in February, 2000, pursuant to the civil False Claims Act, 31 U.S.C. §§ 3729, et seq. The government soon joined FDSI’s investigation of Home Pharm and Ms. Bisig, and, in January, 2001, the United States filed an action under 18 U.S.C. § 1345 to enjoin the ongoing criminal fraud and to freeze the assets of Home Pharm and Peggy and Philip Bisig. In 2002, an indictment was returned against Ms. Bisig and Home Pharm. In March, 2003, a superseding indictment was filed in the criminal prosecution charging Ms. Bisig and/or Home Pharm with four counts of violating 18 U.S.C. § 1347, one count of Unlawful Payment of Kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(2)(A), and one count of mail fraud in violation of 18 U.S.C. § 1341. The superseding indictment also asserted a criminal forfeiture allegation that certain property of Ms. Bisig and Home Pharm was subject to forfeiture to the United States pursuant to 18 U.S.C. § 982(a)(7). Pursuant to her guilty plea agreement, Ms. Bisig agreed to forfeit various pieces of real and personal property that were acquired by her personally during her scheme, as well as the assets of Home Pharm. The United States seized about $265,000 from the injunctive action and recovered about $916,000 in property forfeited in the criminal action. The court held that the relator could participate in the proceeds of the recovered assets because the relator’s rights in the forfeiture proceedings were governed by 31 U.S.C. § 3730(c)(5), which provides that a relator maintains the “same rights” in an alternate proceeding as it would have had in the qui tam proceeding.

A key issue when Section 1345 is invoked is the scope of the assets which may be frozen. Under § 1345(a)(2), the property or proceeds of a fraudulent federal healthcare offense, bank offense or securities offense must be “traceable to such violation” in order to be frozen. United States v. DBB, Inc., 180 F.3d 1277, 1280-1281 (11th Cir. 1999); United States v. Brown, 988 F.2d 658, 664 (6th Cir. 1993); United States v. Fang, 937 F.Supp. 1186, 1194 (D.Md. 1996) (any assets to be frozen must be traceable to the allegedly illicit activity in some way); United States v. Quadro Corp., 916 F.Supp. 613, 619 (E.D.Tex. 1996) (court may only freeze assets which the government has proven to be related to the alleged scheme). Even though the government may seek treble damages against a defendant pursuant to the civil False Claims Act, the amount of treble damages and civil monetary penalties does not determine the amount of assets which may be frozen. Again, only those proceeds which are traceable to the criminal offense may be frozen under the statute. United States v. Sriram, 147 F.Supp.2d 914 (N.D.Il. 2001).

The majority of courts have found that injunctive relief under the statute does not require the court to make a traditional balancing analysis under Rule 65 of the Federal Rules of Civil Procedure. Id. No proof of irreparable harm, inadequacy of other remedies, or balancing of interest is required because the mere fact that the statute was passed implies that violation will necessarily harm the public and should be restrained when necessary. Id. The government need only prove, by a preponderance of the evidence standard, that an offense has occurred. Id. However, other courts have balanced the traditional injunctive relief factors when faced with an action under Section 1345. United States v. Hoffman, 560 F.Supp.2d 772 (D.Minn. 2008). Those factors are (1) the threat of irreparable harm to the movant in the absence of relief, (2) the balance between that harm and the harm that the relief would cause to the other litigants, (3) the likelihood of the movant’s ultimate success on the merits and (4) the public interest, and the movant bears the burden of proof concerning each factor. Id.; United States v. Williams, 476 F.Supp2d 1368 (M.D.Fl. 2007). No single factor is determinative, and the primary question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined. If the threat of irreparable harm to the movant is slight when compared to likely injury to the other party, the movant carries a particularly heavy burden of showing a likelihood of success on the merits. Id.

In the Hoffman case, the government presented evidence of the following facts to the court:

• Beginning in June 2006, the Hoffman defendants created entities to purchase apartment buildings, convert them into condominiums and sell the individual condominiums for sizable profit.

• To finance the venture, the Hoffman defendants and others deceptively obtained mortgages from financial institutions and mortgage lenders in the names of third parties, and the Hoffmans directed the third party buyers to cooperating mortgage brokers to apply for mortgages.

• The subject loan applications contained multiple material false statements, including inflation of the buyers’ income and bank account balances, failure to list other properties being purchased at or near the time of the current property, failure to disclose other mortgages or liabilities and false characterization of the source of down payment provided at closing.

• The Hoffman defendants used this method from January to August 2007 to purchase over 50 properties.

• Generally, the Hoffmans inherited or placed renters in the condominium units, received their rental payments and then paid the rent to third-party buyers to be applied as mortgage payments. The Hoffmans and others routinely diverted portions of such rental payments, often causing the third-party buyers to become delinquent on the mortgage payments.

• The United States believe that the amount traceable to defendants’ fraudulent activities is approximately $5.5 million.

While the court recognized that the appointment of a receiver was an extraordinary remedy, the court determined that it was appropriate at the time. The Hoffman court found that there was a complex financial structure which involved straw buyers and a possible legitimate business coexisting with fraudulent schemes and that a neutral party was necessary to administer the properties due to the potential for rent skimming and foreclosures.

Like other injunctions, the defendant subject to an injunction under Section 1345 is subject to contempt proceedings in the event of a violation of such injunction. United States v. Smith, 502 F.Supp.2d 852 (D.Minn. 2007) (defendant found guilty of criminal contempt for withdrawing money from a bank account that had been frozen under 18 U.S.C. § 1345 and placed under a receivership).

If the defendant prevails in an action filed by the government under the Section 1345, the defendant may be entitled to attorney’s fees and costs under the Equal Access to Justice Act (EAJA). United States v. Cacho-Bonilla, 206 F.Supp.2d 204 (D.P.R. 2002). EAJA allows a court to award costs, fees and other expenses to a prevailing private party in litigation against the United States unless the court finds that the government’s position was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). In order to be eligible for a fee award under the EAJA, the defendant must establish (1) that it is the prevailing party; (2) that the government’s position was not substantially justified; and (3) that no special circumstances make an award unjust; and the fee application must be submitted to the court, supported by an itemized statement, within 30 days of the final judgment. Cacho-Bonilla, supra.

Healthcare fraud attorneys, bank and mortgage fraud law firms, and securities fraud lawyers should be cognizant of the government’s authority under the Fraud Injunction Statute. The federal government’s ability to file a civil action to enjoin the commission or imminent commission of federal health care fraud offenses, bank fraud offenses, securities fraud offenses, and other offenses under Chapter 63 of Title 18 of the United States Code, and to freeze a defendant’s assets can dramatically change the course of a case. While Section 1345 has been infrequently used by the federal government in the past, there is a growing recognition by federal prosecutors that prosecutions involving healthcare, bank-mortgage and securities offenses can be more effective when an ancillary action under the Section 1345 is instigated by the government. Health and hospital care lawyers, bank and mortgage attorneys, and securities law firms must understand that when a defendant’s assets are frozen, the defendant’s ability to maintain a defense can be greatly imperiled.

Hospice fraud in South Carolina and the United States is an increasing problem as the number of hospice patients has exploded over the past few years. From 2004 to 2008, the number of patients receiving hospice care in the United States grew almost 40% to nearly 1.5 million, and of the 2.5 million people who died in 2008, nearly one million were hospice patients. The overwhelming majority of people receiving hospice care receive federal benefits from the federal government through the Medicare or Medicaid programs. The health care providers who provide hospice services traditionally enroll in the Medicare and Medicaid programs in order to qualify to receive payments under these government programs for services rendered to Medicare and Medicaid eligible patients.

While most hospice health care organizations provide appropriate and ethical treatment for their hospice patients, because hospice eligibility under Medicare and Medicaid involves clinical judgments which may result in the payments of large sums of money from the federal government, there are tremendous opportunities for fraudulent practices and false billing claims by unscrupulous hospice care providers. As recent federal hospice fraud enforcement actions have demonstrated, the number of health care companies and individuals who are willing to try to defraud the Medicare and Medicaid hospice benefits programs is on the rise.

A recent example of hospice fraud involving a South Carolina hospice is Southern Care, Inc., a hospice company that in 2009 paid $24.7 million to settle an FCA case. The defendant operated hospices in 14 other states, too, including Alabama, Georgia, Indiana, Iowa, Kansas, Louisiana, Michigan, Mississippi, Missouri, Ohio, Pennsylvania, Texas, Virginia and Wisconsin. The alleged frauds were that patients were not eligible for hospice, to wit, were not terminally ill, lack of documentation of terminal illnesses, and that the company marketed to potential patients with the promise of free medications, supplies, and the provision of home health aides. Southern Care also entered into a 5-year Corporate Integrity Agreement with the OIG as part of the settlement. The qui tam relators received almost $5 million.

Understanding the Consequences of Hospice Fraud and Whistleblower Actions

U.S. and South Carolina consumers, including hospice patients and their family members, and health care employees who are employed in the hospice industry, as well as their SC lawyers and attorneys, should familiarize themselves with the basics of the hospice care industry, hospice eligibility under the Medicare and Medicaid programs, and hospice fraud schemes that have developed across the country. Consumers need to protect themselves from unethical hospice providers, and hospice employees need to guard against knowingly or unwittingly participating in health care fraud against the federal government because they may subject themselves to administrative sanctions, including lengthy exclusions from working in an organization which receives federal funds, enormous civil monetary penalties and fines, and criminal sanctions, including incarceration. When a hospice employee discovers fraudulent conduct involving Medicare or Medicaid billings or claims, the employee should not participate in such behavior, and it is imperative that the unlawful conduct be reported to law enforcement and/or regulatory authorities. Not only does reporting such fraudulent Medicare or Medicaid practices shield the hospice employee from exposure to the foregoing administrative, civil and criminal sanctions, but hospice fraud whistleblowers may benefit financially under the reward provisions of the federal False Claims Act, 31 U.S.C. §§ 3729-3732, by bringing false claims suits, also known as qui tam or whistleblower suits, against their employers on behalf of the United States.

Types of Hospice Care Services

Hospice care is a type of health care service for patients who are terminally ill. Hospices also provide support services for the families of terminally ill patients. This care includes physical care and counseling. Hospice care is normally provided by a public agency or private company approved by Medicare and Medicaid. Hospice care is available for all age groups, including children, adults, and the elderly who are in the final stages of life. The purpose of hospice is to provide care for the terminally ill patient and his or her family and not to cure the terminal illness.

If a patient qualifies for hospice care, the patient can receive medical and support services, including nursing care, medical social services, doctor services, counseling, homemaker services, and other types of services. The hospice patient will have a team of doctors, nurses, home health aides, social workers, counselors and trained volunteers to help the patient and his or her family members cope with the symptoms and consequences of the terminal illness. While many hospice patients and their families can receive hospice care in the comfort of their home, if the hospice patient’s condition deteriorates, the patient can be transferred to a hospice facility, hospital, or nursing home to receive hospice care.

Hospice Care Statistics

The number of days that a patient receives hospice care is often referenced as the “length of stay” or “length of service.” The length of service is dependent on a number of different factors, including but not limited to, the type and stage of the disease, the quality of and access to health care providers before the hospice referral, and the timing of the hospice referral. In 2008, the median length of stay for hospice patients was about 21 days, the average length of stay was about 69 days, almost 35% of hospice patients died or were discharged within 7 days of the hospice referral, and only about 12% of hospice patients survived longer than 180 days.

Most hospice care patients receive hospice care in private homes (40%). Other locations where hospice services are provided are nursing homes (22%), residential facilities (6%), hospice inpatient facilities (21%), and acute care hospitals (10%). Hospice patients are generally the elderly, and hospice age group percentages are 34 years or less (1%), 35 – 64 years (16%), 65 – 74 years (16%), 75 – 84 years (29%), and over 85 years (38%). As for the terminal illness resulting in a hospice referral, cancer is the diagnosis for almost 40% of hospice patients, followed by debility unspecified (15%), heart disease (12%), dementia (11%), lung disease (8%), stroke (4%) and kidney disease (3%). Medicare pays the great majority of hospice care expenses (84%), followed by private insurance (8%), Medicaid (5%), charity care (1%) and self pay (1%).

As of 2008, there were approximately 4,700 locations which were providing hospice care in the United States, which represented about a 50% increase over ten years. There were about 3,700 companies and organizations which were providing hospice services in the United States. About half of the hospice care providers in the United States are for-profit organizations, and about half are non-profit organizations.
General Overview of the Medicare and Medicaid Programs

In 1965, Congress established the Medicare Program to provide health insurance for the elderly and disabled. Payments from the Medicare Program arise from the Medicare Trust fund, which is funded by government contributions and through payroll deductions from American workers. The Centers for Medicare and Medicaid Services (CMS), previously known as the Health Care Financing Administration (HCFA), is the federal agency within the United States Department of Health and Human Services (HHS) that administers the Medicare program and works in partnership with state governments to administer Medicaid.

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