Latest / Ask the Lawyer / 08/22/2024 Ask the Lawyer with Tom Peyton

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08/22/2024 Ask the Lawyer with Tom Peyton · Ask the Lawyer

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Speaker 1: Unlock your dream property with Meex Realty Group, where Rich
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Speaker 3: Put the power of maybe on the side. We have
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Speaker 3: the courtroom experience of such a need.
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Speaker 4: We never give up.
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Speaker 5: When you need action.
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Speaker 6: Count on us.
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Speaker 3: Put the power of page on your side, the power
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Speaker 3: of page.
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Speaker 7: And good morning to you. It is a Thursday morning,
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Speaker 7: and it's a twenty two to hero on five eight WCCHS.
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Speaker 7: The voice of Charles. I'm Jeff Jenkins and Tom Payton
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Speaker 7: with the Peyton Law Firm in Nitro is with us
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Speaker 7: and the number three oh four three four five fifty
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Speaker 7: eight fifty eight. Three oh four three four five fifty
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Speaker 7: eight fifty eight. Pretty uh special day for us here
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Speaker 7: a couple of special days.
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Speaker 8: You know.
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Speaker 4: We have the we have the radio.
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Speaker 9: Thion, yeah for the and you know, it used to
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Speaker 9: be Saint Jude and which was great. We always tried
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Speaker 9: to give to that when we came in and I
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Speaker 9: actually thought I wasn't going to be here in person today,
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Speaker 9: but rearranged the schedule to make it, so I'm glad
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Speaker 9: I did. So we're going to make a little gift
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Speaker 9: now we do. I think starting last year it's w
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Speaker 9: W Children's Hospital, which I like a little bit better
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Speaker 9: because it's got a little more local flavor to it
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Speaker 9: and you at least feel like the money stays in
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Speaker 9: the local area to help the kids around here.
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Speaker 8: And it's not not much better cause than that, you know.
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Speaker 9: And so we we got we're going to throw in a
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Speaker 9: little money and maybe go to some of the other
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Speaker 9: stations here when I'm done and talk about that a bit.
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Speaker 8: So, Yeah, if anybody out.
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Speaker 9: There is listening, there's lawyers or insurance guys or business people,
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Speaker 9: and you want to make a gift, and here's your opportunity,
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Speaker 9: and and and the radio, you guys will help them
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Speaker 9: out because you give a little bit of pub when
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Speaker 9: when you make that donation.
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Speaker 8: So, uh, it's not why we do it.
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Speaker 9: But we get asked every year and we try and
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Speaker 9: participate every year if we can. And so we're going
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Speaker 9: to give a little bit this year, and I would
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Speaker 9: encourage everybody else out there that can afford to do
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Speaker 9: it to to help out the community with that gift
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Speaker 9: as well. It stays local.
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Speaker 8: I guess the w did they build a new children's
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Speaker 8: hospital units?
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Speaker 7: And yes they did, Yep, yep, it's only about like
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Speaker 7: three years old, right, that's what I thought.
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Speaker 9: So, you know, if you have a child, hopefully you don't,
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Speaker 9: but if you have a child with a chronic illness
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Speaker 9: or a problem that's really serious. I mean, now you
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Speaker 9: can go there as opposed you know, as soon it's
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Speaker 9: in Morgantown, so you can go there and get really
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Speaker 9: good treatment as opposed to having to go to out
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Speaker 9: of state Cleveland clinic and things like that, and uh
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Speaker 9: a little more comfortable atmosphere and it'll catch them out
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Speaker 9: in your game if yeah.
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Speaker 7: Yeah, So the folks will be hearing about that all
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Speaker 7: day today and tomorrow on how to give. It's very
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Speaker 7: easy to do, so keep it tuned right here. Also
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Speaker 7: can go to our website w c h US network
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Speaker 7: dot com.
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Speaker 4: So hey, it's good.
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Speaker 7: Good to be here, Good to be with Tom this morning.
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Speaker 7: And the number to call is three oh four, three
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Speaker 7: four five.
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Speaker 4: Fifty eight fifty eight.
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Speaker 7: Anything about the law three oh four, three four five
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Speaker 7: fifty eight fifty eight. I came in here this morning,
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Speaker 7: thought we're going to have a special guest on the air.
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Speaker 9: Yeah, well I got her in the studio and then
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Speaker 9: she ran. Now my wife and I we're heading to
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Speaker 9: actually driving to Wilmington, North Carolina after the show today.
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Speaker 9: We have a close friend of mine, Greg Gordon, his
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Speaker 9: daughter is getting married down there. Every of the country
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Speaker 9: I've never been, so I'm kind of looking forward to it.
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Speaker 9: We're staying on Wrightsville Beach, which I think is right
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Speaker 9: next to Wilmington, but his daughter is really good friends
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Speaker 9: with my daughter, Grace. Grace is in the wedding, so
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Speaker 9: we're all traveling down there. Hopefully it'll be a really
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Speaker 9: nice event. They're actually doing the dinner tonight, wedding tomorrow,
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Speaker 9: and then some kind of beach day on Saturday, So
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Speaker 9: a little different flavor than most of the weddings I've attended,
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Speaker 9: but I'm sure it's going to be a great time,
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Speaker 9: and wish that couple good luck. And I'm sure they'll
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Speaker 9: have a long and happy life together. So well, but yeah,
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Speaker 9: Marian came in, so she was. She ran when we
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Speaker 9: got ready to get on the air, so she maybe
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Speaker 9: next time I got her in here at least usually
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Speaker 9: when we're doing.
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Speaker 8: One of these trips, she won't even come out of
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Speaker 8: the car, right. But she's my pair leegal.
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Speaker 9: Actually she does my title abstracting and a lot of
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Speaker 9: our estate work. So folks that have been our clients
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Speaker 9: in the past have dealt with Maryanne very pleasant to
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Speaker 9: deal with, much more pleasant than I am.
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Speaker 8: I'm sure smarter too.
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Speaker 9: But she's going able to do some title work now
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Speaker 9: while we do the radio show, and that's you know,
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Speaker 9: to titles, like if you get a title done, just fy.
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Speaker 9: So there's title abstractors and those are generally I mean,
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Speaker 9: I'll do my own title abstracting sometimes, but a lot
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Speaker 9: of attorneys use an abstractor, which is a pairalegal that
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Speaker 9: goes and looks up the data. They know how to
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Speaker 9: do it fine leans and make sure there's a chain
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Speaker 9: of title.
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Speaker 8: And it's a.
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Speaker 9: Little bit complicated. People sometimes say, well I did my
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Speaker 9: own title search. Well, yeah, you might have got it right,
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Speaker 9: but unless you're an attorney, you really don't have the
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Speaker 9: ability to do a proper title search. But that data
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Speaker 9: then comes back to me, and then I analyze the
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Speaker 9: data determine whether do we need more information because I
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Speaker 9: see something unusual here, or is there a title problem
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Speaker 9: that we need to try and fix before we close
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Speaker 9: this deal, or and the deal does not go through
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Speaker 9: because there's a problem that's impossible impractical too in practice.
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Speaker 4: The lean against the titles right, and it's.
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Speaker 8: You know, you got to do what's called adverse.
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Speaker 9: So like you not to bore everyone, but you go
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Speaker 9: back so many years and like everybody that's owned it,
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Speaker 9: you've got to go back and check liens on them
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Speaker 9: because they can stick with the property even though the
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Speaker 9: property has been transferred to others. So there sometimes you
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Speaker 9: find old mortgages that haven't been released, or home equity
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Speaker 9: lines maybe that had a zero balance, but you still
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Speaker 9: got to release the lien and you got to go
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Speaker 9: back and find the bank that handled it, or maybe
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Speaker 9: they've you know, have successor companies now because they've merged
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Speaker 9: with other banks and find an officer to sign a release.
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Speaker 9: That's a good example. And then of course you.
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Speaker 8: Can have.
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Speaker 9: Tax liens, but property tax liens are easy. But you
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Speaker 9: can also have income tax consumer sales tax liens. Those
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Speaker 9: are generally recorded against a person or entity, but they
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Speaker 9: attached to any real property interest that person owns at
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Speaker 9: the time. So you got to watch that because a
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Speaker 9: lot of people don't understand that. You know, if gim
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Speaker 9: Justice doesn't pay or Greenbriero Hotel Corporation doesn't play their
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Speaker 9: consumer sales tax, a lien's recorded, it's not against a
6:19
Speaker 9: particular piece of property. It's against all property at least
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Speaker 9: in that county that is owned by that entity.
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Speaker 7: Yeah, lian is called l I E N. But it's
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Speaker 7: really so what's the definition? It was like a claim, like.
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Speaker 9: They right, A lien is like a claim that is
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Speaker 9: against the property. So you have to satisfy and you
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Speaker 9: hear mechanics leans, judgment, lians, tax liens, all the A
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Speaker 9: lien in that term just means essentially your property has
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Speaker 9: become collateral for that obligation. And that's what it means.
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Speaker 9: And there's there's you know, a mortgage is like a
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Speaker 9: voluntary lien. You sign something saying hey, yes back, you
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Speaker 9: can put a mortgage on my property. And then you know,
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Speaker 9: these other leans we've talked about before that are involuntarily.
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Speaker 9: Normally they just get placed because you haven't met some obligation.
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Speaker 9: And sometimes there you know, you get common names. You
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Speaker 9: got to go figure out whether this is this really
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Speaker 9: the same person or not. There's tons of John Smith's
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Speaker 9: out there, and you got to try and find a
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Speaker 9: soci secured number, a date of birth or something. It
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Speaker 9: mates them up, so it can be You know, if
7:23
Speaker 9: you're paying a few thousand bucks for some property, you're
7:26
Speaker 9: not going to sell it, you're not going to borrow
7:30
Speaker 9: against it, maybe you don't need a title search. But
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Speaker 9: if you're paying you know, five figures for property, I
7:34
Speaker 9: would never a title search is going to cost you
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Speaker 9: five eight hundred bucks, probably depending on which attorney you
7:40
Speaker 9: use and what county it's in. But I just wouldn't
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Speaker 9: invest that type of money on property I cared about
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Speaker 9: unless I had a proper title search done. And when
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Speaker 9: you get a title search done, if you want, you
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Speaker 9: can buy title insurance to if the clerk index something wrong.
7:53
Speaker 9: You know, you can sure your interest, insure your interest
7:55
Speaker 9: to make sure if something comes up later you get
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Speaker 9: covered for that. And of course if you have a
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Speaker 9: lawyer that's got liability insurance, and if they make a mistake,
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Speaker 9: you've got the lawyer there that you can say, hey,
8:06
Speaker 9: how come you didn't find this? And if it was
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Speaker 9: a real problem that they should have found, then there's
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Speaker 9: some recourse there as well. So I encourage folks to
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Speaker 9: get title searches. It just all depends on the nature
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Speaker 9: of your property, your mind, and what are you going
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Speaker 9: to do with it, because a lot of title problems too.
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Speaker 9: If you don't, you can't predict the future. But if
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Speaker 9: you're not going to borrow against it or sell it
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Speaker 9: in the foreseeable future, there's less need for a title
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Speaker 9: because there's things problems with titles get older, there are
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Speaker 9: statchu of limitations on certain types of leans and things
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Speaker 9: like that, so some problems can go away. But we
8:39
Speaker 9: found I did one recently where we found chain of
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Speaker 9: title problems. You know, old deeds have been done between
8:44
Speaker 9: family members and things, well, they didn't not all of
8:47
Speaker 9: the previous errors had signed their interests over so and
8:51
Speaker 9: nobody had really caught it because they hadn't borrowed against
8:53
Speaker 9: it or had to sell it to somebody that needed
8:55
Speaker 9: to borrow against it, or done a proper title search
8:58
Speaker 9: in decades. So then you've got to go try and
8:59
Speaker 9: find the missing pieces. Because one hundred percent of the
9:03
Speaker 9: property is not owned by the people trying to sell it,
9:06
Speaker 9: so you might have five percent out there. Well that
9:08
Speaker 9: that will prevent most legitimate lenders from learning money against
9:12
Speaker 9: the property. And this deal wh had and went through
9:16
Speaker 9: with that gap because they didn't need to borrow money
9:18
Speaker 9: to purchase the property, and they we told them about
9:20
Speaker 9: the risk and the problem is said, well, we'll just
9:22
Speaker 9: deal with it. We've got to get the property. So
9:25
Speaker 9: if somebody comes back and that five percent ownership, then
9:28
Speaker 9: they're gonna have to deal with them. We'll find them later, yeah,
9:31
Speaker 9: or they're heirs. That's the problem. It gets gets harder
9:34
Speaker 9: with time because every time somebody passes away, generally it
9:38
Speaker 9: just spreads to more folks. And sometimes you can track
9:41
Speaker 9: that easily if the states are administered properly.
9:43
Speaker 8: Sometimes it's real hard. You've got to go.
9:45
Speaker 9: Try and do family trees and things like that, and
9:48
Speaker 9: if you can't, you get in lawsuits trying to straighten
9:50
Speaker 9: it out right.
9:51
Speaker 7: Three or four three four five fifty eight fifty eight
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Speaker 7: three or four three four five fifty fifty. Tom Payton
9:56
Speaker 7: here with a paytent law firm in NIRA. Of course,
9:59
Speaker 7: some of the the biggest legal news in the state
10:02
Speaker 7: is involved the governor and his company, Yeah, and Leans
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Speaker 7: and Leans the and the Greenbrier Resort.
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Speaker 9: That's right, and that's what we talked about that a
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Speaker 9: couple of weeks at the hotel.
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Speaker 4: I guess specifically the hotel, Yeah.
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Speaker 9: Greenbrier Hotel Corporation, which owns probably a lot of property.
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Speaker 9: But what I understand the and there's been a foreclosure
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Speaker 9: sale notice for next Tuesday, and as I sort of predicted,
10:26
Speaker 9: it wasn't sure what the grounds would be. There's been
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Speaker 9: a lawsuit filed by the Greenbrier Hotel Corporation, Jim Justice
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Speaker 9: the third which is Governor Justice's son, and Jillian Justice,
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Speaker 9: which is his daughter who he said and I guess
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Speaker 9: are the kind of like the managing principles of the
10:43
Speaker 9: Greenbrier Hotel Corporation.
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Speaker 8: I believe this.
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Speaker 9: Started in twenty fourteen, this loan, and I'm not sure.
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Speaker 9: I think it started at like forty million dollars and
10:52
Speaker 9: it hasn't been that.
10:53
Speaker 4: That's that's what they're calling for now. That's what they
10:55
Speaker 4: say is owed on it.
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Speaker 9: That's now, okay, I thought I saw a note where
10:58
Speaker 9: that may have been the original amount, but it may
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Speaker 9: been more than that.
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Speaker 8: I'm not sure.
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Speaker 9: It's hard to tell because when you don't make payments
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Speaker 9: on time, interest does keep accruing generally.
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Speaker 8: But yeah, so they've they've.
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Speaker 9: Filed a lawsuit alleging that the lender is improperly trying
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Speaker 9: to foreclose on the property. But what's happened over time
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Speaker 9: as they've there was more property than just the hotel
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Speaker 9: that was collateralized that was for this loan, And so
11:27
Speaker 9: they've released different pieces of property as the bank has
11:30
Speaker 9: been paid off or like, it's very common that you
11:32
Speaker 9: sell a piece off, the bank will do a partial release.
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Speaker 9: So we're going to release the lean on lot number
11:36
Speaker 9: one for example. That way it can be sold free
11:39
Speaker 9: and clear. Now the bank gets some money out of
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Speaker 9: the sale, because they won't release it without getting.
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Speaker 8: Some money generally.
11:44
Speaker 9: So what's happened now this loan's been in place so long,
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Speaker 9: I think anything else that was collateralized has already been released.
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Speaker 9: So we have what I understand is just kind of
11:53
Speaker 9: the hotel and maybe the grounds right around it. It doesn't
11:56
Speaker 9: include the golf course or the sporting club or some
11:58
Speaker 9: other men of these that are intrinsic to the Greenbrier Resort. So,
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Speaker 9: but those three two individuals in that one entity filed
12:08
Speaker 9: a lawsuit trying to stop the foreclosure sale. And it's
12:11
Speaker 9: I was curiously, well, what's there? What are their grounds?
12:13
Speaker 9: And it's interesting. There's a couple interesting arguments. One argument
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Speaker 9: is that you know, the governor signed the note and
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Speaker 9: the deed, maybe at least the deed of trust that
12:28
Speaker 9: made this property collateral back in twenty fourteen.
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Speaker 8: And and one.
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Speaker 9: Of the arguments is that's invalid because he didn't have
12:36
Speaker 9: authority to do that, right, And they cite a case.
12:39
Speaker 8: We got a call, we got call. Okay, let's take
12:40
Speaker 8: the call.
12:41
Speaker 4: Let's take the call.
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Speaker 9: Danny.
12:42
Speaker 4: You're on with Tom Payton. Danny, go ahead, thanks for calling.
12:45
Speaker 10: I have a question concerning probate. I understand the it
12:51
Speaker 10: happened to be bonding all that, but didn't the state
12:54
Speaker 10: pass something recently where a small estate goes through a
12:59
Speaker 10: different process.
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Speaker 9: Yes, there is a I think a lot of states
13:04
Speaker 9: have had this for a while because I've had out
13:06
Speaker 9: of state folks say well, you need to get a
13:08
Speaker 9: small estate affidavit or something. We didn't have that option.
13:12
Speaker 9: Probably four years ago or so we passed a law
13:16
Speaker 9: that does allow a different procedure that's simplified for small estates.
13:22
Speaker 9: And so you can't quite me on this because I'm
13:24
Speaker 9: not looking at it right now, but I believe if
13:26
Speaker 9: the land value that would go through probate is less
13:30
Speaker 9: than one hundred thousand dollars and personal property value that
13:34
Speaker 9: would go through probate is less than fifty thousand dollars
13:38
Speaker 9: of an air, it has to be an air, either
13:42
Speaker 9: in the will or by intestate succession. If there's not
13:44
Speaker 9: a will, you have to be an air. There's a
13:46
Speaker 9: little bit of a waiting period. But yeah, you can
13:49
Speaker 9: then go and basically get a certificate of probate and
13:54
Speaker 9: you don't have to go through the full blown probate process.
13:57
Speaker 9: You file essentially an affi davit listing those assets, and
14:01
Speaker 9: you notify the other hererors it's been done. But you
14:04
Speaker 9: don't do much after that. You just swear under oath
14:07
Speaker 9: that you're gonna take control of the assets and distribute them.
14:10
Speaker 9: So I've used it a couple times, A little hesitant
14:15
Speaker 9: to use it if there's real estate going through probate
14:17
Speaker 9: because it really hasn't been tested in the title, insurance,
14:21
Speaker 9: realm and that kind of thing. But yeah, it's really
14:25
Speaker 9: good if you have I mean, I've had multiple cases
14:26
Speaker 9: where maybe a family member has almost everything set up
14:31
Speaker 9: non probate, where it's in their name and another person's name,
14:33
Speaker 9: or maybe they have beneficiaries named outside the will. All
14:36
Speaker 9: you got is eleven thousand dollars in a bank account
14:40
Speaker 9: that was in their name only. So that would be
14:42
Speaker 9: a perfect example where you could go just do this
14:44
Speaker 9: small estate affi day. But there's a little filing fee,
14:48
Speaker 9: but there's not much paperwork beyond the initial one and
14:51
Speaker 9: then it's just kind of you're entrusted. You swear under
14:53
Speaker 9: oath that you'll distribute it to those who are entitled
14:56
Speaker 9: to it, and if you don't, you know, they have
14:58
Speaker 9: noticed of it. They can recourses against you if you
15:01
Speaker 9: don't distribute it appropriately. So yes, that is an exit
15:05
Speaker 9: point that came into play about four years ago Webster
15:07
Speaker 9: created that it's it's good in certain circumstances. I'm hesitant
15:12
Speaker 9: to use it if you have, you know, real estate
15:14
Speaker 9: that's going through probate that has any significant value because
15:17
Speaker 9: it's it's just different, and I worry about title insurance
15:21
Speaker 9: companies or lenders not liking that process because it's not
15:25
Speaker 9: as fail safe, you know, you got you know, it's
15:28
Speaker 9: loosely governed, and we have non judicial probate anyway, I mean,
15:31
Speaker 9: you don't if you go through full blown probate, you
15:34
Speaker 9: generally don't see a jump. Mean, the County Commission ultimately
15:36
Speaker 9: is the overseer of the probate process, but you don't
15:39
Speaker 9: generally go before them unless there's some significant controversy. You know,
15:43
Speaker 9: the the executor administrator files a list of the assets
15:47
Speaker 9: and then you can see who the airs are, and
15:48
Speaker 9: the air is kind of have to monitor it on
15:51
Speaker 9: their own. It's self governing in a way, unless there's
15:53
Speaker 9: a problem.
15:54
Speaker 10: Okay, Danny, right, thank you.
15:56
Speaker 4: I appreciate it.
15:57
Speaker 7: Yeah, good three or four three four five fifty eight
15:59
Speaker 7: fifty it's eight thirty eight. So we're going to get
16:02
Speaker 7: back to the unless you had a comment on that, okay,
16:04
Speaker 7: So we'll get back to the justice thing. We're gonna
16:06
Speaker 7: take our break, our one and only break. Tom Payton
16:08
Speaker 7: with US Peyton Law Firm and Nitro three oh four
16:11
Speaker 7: three four five fifty eight fifty eight to ask Tom
16:13
Speaker 7: a question three oh four three four five fifty eight
16:16
Speaker 7: fifty eight back in the moment of five EIGHTYU w
16:18
Speaker 7: uhs Jeff Jenkins five eighty whs. Today we're coming together
16:22
Speaker 7: with Styke Wealth Enhancement to make a difference in the
16:25
Speaker 7: lives of children. Did you know that last year alone,
16:27
Speaker 7: kids from our community were treated at WU Medicine Children's
16:31
Speaker 7: Hospital or clinic three thousand, one hundred and fifty nine times.
16:34
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18:52
Speaker 9: Yeah, yeah, just to wrap up what Danny was talking about,
18:54
Speaker 9: one more level on that. I think it's been in
18:58
Speaker 9: in place longer than the small state issue. It's just
19:02
Speaker 9: kind of not something a lot of folks know about.
19:04
Speaker 9: But if there's a five thousand dollars or less, like
19:06
Speaker 9: in the bank account I was referencing earlier at ten
19:08
Speaker 9: or eleven thousand dollars in it, if there's five thousand
19:10
Speaker 9: dollars or less, there's actually an affidavit that can be
19:13
Speaker 9: done by an air or the beneficiary of what would
19:17
Speaker 9: have been the estate, and that can be submitted to
19:20
Speaker 9: a bank or financial institution, and under West Virginia Code,
19:23
Speaker 9: they're allowed to go ahead and distribute that to that
19:25
Speaker 9: person in reliance upon that affidavit. So if you have
19:28
Speaker 9: a real small amount that's just out there and that's
19:31
Speaker 9: the only thing going through probate, you can look at
19:33
Speaker 9: that as well. And I've drafted over the last few
19:37
Speaker 9: years of decent number of those affidavits to get that
19:39
Speaker 9: taken care of it.
19:40
Speaker 8: It saves you don't have to go to courtouse.
19:41
Speaker 9: You don't have to open in a state at all,
19:43
Speaker 9: small or the customary estate, So keep that in mind.
19:47
Speaker 9: I always kind of encourage people, if you haven't opened
19:52
Speaker 9: in a state already and there's some question about whether
19:55
Speaker 9: the person had sufficient assets or maybe they have a
19:58
Speaker 9: lot of debt to open in a state, to give
19:59
Speaker 9: me a a call before you go open the estate,
20:02
Speaker 9: because you know, the folks at the court house generally
20:05
Speaker 9: aren't lawyers, and you know that a lot of what
20:07
Speaker 9: we hear as well, Yeah, you got to open an estate,
20:09
Speaker 9: but it's you don't always have to open an estate.
20:11
Speaker 9: But it's also a can of worms that once you
20:14
Speaker 9: get it open it's it's sometimes hard to get them
20:17
Speaker 9: back in there if you didn't need to open the
20:19
Speaker 9: can in the first place, and.
20:20
Speaker 4: Then that would not discourage you though from doing a will.
20:22
Speaker 9: Still do a will, Oh yeah, no, everyone should for
20:26
Speaker 9: the most part, should do a will. And even if
20:28
Speaker 9: it does the same thing that would happen if you
20:30
Speaker 9: didn't have a will, it's going to have at least
20:32
Speaker 9: if we do. It has some bells and whistles and
20:34
Speaker 9: things that ultimately save your family more money than you're
20:37
Speaker 9: going to pay us probably to do your estate plan anyway.
20:40
Speaker 9: And of course you can then direct things where you
20:43
Speaker 9: want so that you're comfortable when the time comes that
20:46
Speaker 9: your property will get to who you want to have it.
20:49
Speaker 7: Right, Yeah, three or four three four five fifty eight
20:51
Speaker 7: fifty eight three or four three four five fifty eighth
20:53
Speaker 7: fifty So as of now, there's a hearing tomorrow in
20:57
Speaker 7: Greenbrier County Circuit Court as the Justice family just the
21:01
Speaker 7: Greenbrier Corporation. They will seek a temporary restraining order.
21:06
Speaker 9: But it'd be a prelminary injunction not to get in
21:09
Speaker 9: the weeds. But temporary restraining order is generally what you
21:12
Speaker 9: get initially, like ex part day, Like if it was
21:14
Speaker 9: something happened in the next day, the judge might have
21:16
Speaker 9: entered a tro to just halt it. Then you have
21:20
Speaker 9: to have a hearing within certain times. Nothing's been stopped yet,
21:23
Speaker 9: but you're right, I mean, same general concepts. So they're
21:25
Speaker 9: going to have a hearing regarding a preliminary injunction, which is, hey,
21:29
Speaker 9: stop this sale pending the final outcome of our case.
21:33
Speaker 9: And we've talked about these and over the years on
21:36
Speaker 9: this show. There's various factors. One is, you know, there
21:39
Speaker 9: has to be some likelihood that the plaintiffs are going
21:43
Speaker 9: to prevail on the merits that they have legitimate issues.
21:47
Speaker 9: And then the other thing is if you get one
21:50
Speaker 9: granted and you're a private citizen like this or entity,
21:53
Speaker 9: you only have to post a bond because you're stopping
21:57
Speaker 9: the defendant from taking some action to protect their financially
22:00
Speaker 9: interest or some other forbearants. And so you generally have
22:03
Speaker 9: to post a financial bond to secure the fact that
22:06
Speaker 9: you know, if you lose this case, that bond's there
22:09
Speaker 9: to pay losses that the defendant may have. So that
22:12
Speaker 9: would be interesting to see what happens here. But they
22:15
Speaker 9: basically have laid out three kind of legal theories on
22:19
Speaker 9: why the foreclosure sale is improper. One is a real technicality,
22:24
Speaker 9: claiming that in the notice they needed to list the
22:27
Speaker 9: bank or the lender as the beneficiary of the VITA trust.
22:32
Speaker 9: I don't think that's going to get anywhere. It's it's curable,
22:35
Speaker 9: first of all, real quick by just doing another notice,
22:38
Speaker 9: and so I don't think that's going to get anywhere.
22:41
Speaker 9: The interesting one that I found was this allegation that
22:46
Speaker 9: Governor Justice didn't have authority to leverage the property for
22:49
Speaker 9: the loan. And they've cited a case, one case in
22:52
Speaker 9: West Virginia.
22:53
Speaker 8: I looked up. It's from nineteen fourteen. It has to
22:56
Speaker 8: do with a small company. I think they were selling.
23:00
Speaker 9: Maybe it was this distillery or something selling some liquor,
23:02
Speaker 9: but the uh and it was kind of a mom
23:05
Speaker 9: and pop type thing, family type business similar much smaller scale,
23:08
Speaker 9: although I don't in nineteen fourteen dollars, maybe not, but
23:11
Speaker 9: in essence, the let's say somebody in Jim Justice's position
23:16
Speaker 9: had had leveraged or had borrowed some money from a
23:18
Speaker 9: bank and had leveraged his own personal assets and then
23:22
Speaker 9: they said, well, you're getting behind on the payments. So
23:24
Speaker 9: what we're gonna do? He said, well, wait a minute,
23:26
Speaker 9: here you can. You can also collateralize the inventory of
23:29
Speaker 9: our company, for example, something like that. So I think
23:32
Speaker 9: it was it was like liquor.
23:33
Speaker 8: It wasn't. It wasn't real property.
23:35
Speaker 9: But they cite that case for the and then the
23:38
Speaker 9: court ultimately avoided that and said no, the bank should
23:41
Speaker 9: have known better. He didn't have authority to do that.
23:44
Speaker 9: There was no even though actually I think a bank
23:47
Speaker 9: or the corporate secretary even signed off on it, but
23:49
Speaker 9: there there was no board resolution or anything approving it.
23:54
Speaker 9: But one of the key factors in that one was
23:56
Speaker 9: that that person got all the money and the company
24:01
Speaker 9: didn't get any of the money from that loan. So
24:04
Speaker 9: if you apply that to the Greenbrier situation, you got
24:07
Speaker 9: to kind of look behind this. This started in twenty fourteen.
24:09
Speaker 9: Where did I said forty million earlier? I might be wrong,
24:12
Speaker 9: It was certainly well well well into the millions. So
24:15
Speaker 9: if you look at that case and you want to
24:17
Speaker 9: argue it on your behalf, you almost have to go
24:19
Speaker 9: back and say, well, wait a minute, did the Greenbrier
24:22
Speaker 9: get this money or did Jim Justice get it personally
24:25
Speaker 9: to have that case work. And so we'll see if
24:28
Speaker 9: some of that comes out if they don't work a
24:30
Speaker 9: deal before tomorrow.
24:31
Speaker 7: Anyway, right, Okay, let's go to Dave on the line. Dave,
24:34
Speaker 7: you're on with Tom Payton. Go ahead, turn down your radio, Dave. No,
24:38
Speaker 7: all right, Okay, go ahead, you're in the air.
24:40
Speaker 4: Go ahead.
24:41
Speaker 2: Yes.
24:42
Speaker 10: I would just like to know how can you prevent
24:46
Speaker 10: probate altogether? Is there a way that you can just
24:49
Speaker 10: not even have to deal with that?
24:51
Speaker 2: Well, there is.
24:54
Speaker 8: To a certain extent.
24:55
Speaker 9: First of all, nobody can predict exactly what they're going
24:59
Speaker 9: to aid when they pass away. I mean, you could
25:00
Speaker 9: know you're going to pass away next week, and then
25:03
Speaker 9: some relative passes away, and somehow you inherit a mental
25:05
Speaker 9: interest somewhere. Well that has if you want to pass
25:07
Speaker 9: that down, it's got to go through probate.
25:09
Speaker 8: Now, I will tell you this.
25:10
Speaker 9: In West Virginia, I generally, I mean there's some tax
25:14
Speaker 9: advantages to certain types of savings plans for Roman K's rollovers,
25:18
Speaker 9: things like that if you keep it nonprobate by naming
25:20
Speaker 9: individuals beneficiaries. But otherwise probate really isn't complicated In West
25:26
Speaker 9: Virginia I've had. You know, it's it's easy for me
25:29
Speaker 9: to say because I've done thousands of them, but you know, honestly,
25:31
Speaker 9: it's I wouldn't spend a lot of money trying to
25:36
Speaker 9: make things non probate just for the sake of making
25:39
Speaker 9: them non probate, and just for that. Non Probate means
25:41
Speaker 9: that you set your assets up so that they would
25:45
Speaker 9: not pass by your will or through the probate process
25:48
Speaker 9: if you don't have a will. So for example, if
25:51
Speaker 9: Jeff Jenkins and I own a car together and it
25:53
Speaker 9: says or between our names, if I pass away, Jeff
25:56
Speaker 9: ounds that car, nothing goes through probate because that's not
26:00
Speaker 9: rolled by the will. Or if I have life insurance
26:01
Speaker 9: for one k Ira and I've named individual beneficiaries, they're
26:05
Speaker 9: going to get that by virtue of that, essentially the
26:08
Speaker 9: contract that's been signed saying that goes to them when
26:12
Speaker 9: I pass away, and so that's non probate access. You
26:14
Speaker 9: can set pretty much everything up that way, other than
26:18
Speaker 9: you can't set up personal things inside your home that way.
26:22
Speaker 9: But if you set everything up that way and that's
26:24
Speaker 9: appropriate and that's still in place when you pass away,
26:28
Speaker 9: then That's an example where even though you have a will,
26:31
Speaker 9: it might not be necessary to go probate the will
26:34
Speaker 9: and go through the probate process because most everything or
26:38
Speaker 9: I guess everything in that situation that matters goes directly
26:42
Speaker 9: to individuals without having to rely upon a will. Now,
26:45
Speaker 9: you still got to have a will because you just
26:47
Speaker 9: don't know for sure what you're going to own you
26:49
Speaker 9: pass away, and it might be, for example, that you
26:52
Speaker 9: don't need to probate somebody's will now, and so you
26:56
Speaker 9: can you go lodge it in the fiduciary's office where
26:59
Speaker 9: they keep it in a big set the original and
27:00
Speaker 9: then if there's some interests later where for example, there's
27:05
Speaker 9: U realize there's a wrongful death lawsuit for example, you
27:07
Speaker 9: got to have in a state open to do that.
27:08
Speaker 9: So then that will would always be there and could
27:11
Speaker 9: always be a bitted to probate later. So I don't
27:15
Speaker 9: know if that helps you a little bit but day.
27:17
Speaker 9: But yeah, so it's not really and you can do
27:21
Speaker 9: trust and still that results in some probate depending on
27:24
Speaker 9: how it's done. I've really discouraged trusts unless you have
27:27
Speaker 9: a particular need for it, because I've just unwound more
27:30
Speaker 9: people's trusts over the years than I've created these living trusts.
27:35
Speaker 9: And I think a lot of times I don't see
27:36
Speaker 9: as much anymore, but used to see like outfits coming
27:39
Speaker 9: maybe even from out of state, but how to would probate.
27:41
Speaker 9: And there's these seminars and have these big three ring
27:43
Speaker 9: binders of a state planning packets that I think is
27:47
Speaker 9: just overkill. And they charge a little too much for that,
27:50
Speaker 9: and a lot of it's them folks come to me
27:52
Speaker 9: five ten years later and they don't understand.
27:53
Speaker 8: Any of it, and they don't know what's going on.
27:55
Speaker 9: And then it doesn't need to be that complicated in
27:58
Speaker 9: West Virginia. Now, different states are different. I will tell
28:01
Speaker 9: you you know. I've had a lot of cases where
28:03
Speaker 9: we have maybe a couple of million dollars a state
28:05
Speaker 9: here with various properties and a baby of business owned
28:09
Speaker 9: and then they were snowbirds, so they had a lot
28:11
Speaker 9: in Florida with a house trailer on it. Oh willen
28:13
Speaker 9: that you have to hire a lawyer down there because
28:16
Speaker 9: there's assets in Florida to administer that of state, and
28:20
Speaker 9: it will cost them more in larger fees than they
28:22
Speaker 9: paid me to do the largest state because it's judicial
28:24
Speaker 9: in Florida, and you got to get permission from a
28:26
Speaker 9: court every single thing you do. And it's just so
28:29
Speaker 9: you do have to watch for that. If you have
28:31
Speaker 9: some assets out of state, you want to consult an
28:34
Speaker 9: attorney in that particular standing. O Hi is more complicated
28:36
Speaker 9: than West Virginia, and Virginia's more complicated. I haven't had
28:39
Speaker 9: much in Kentucky, but and I know for sure Florida is.
28:42
Speaker 9: So you kind of got to watch watch that. And
28:44
Speaker 9: then these time shares, you see those sometimes they're just
28:48
Speaker 9: not very good investments. And a lot of times, I'll
28:51
Speaker 9: tell folks just let it go if somebody passes away
28:53
Speaker 9: owning a timeshare somewhere, because a lot of times they
28:55
Speaker 9: have negative value. You're paying more in common area maintenance
28:58
Speaker 9: expenses than you are running out your whatever time you
29:03
Speaker 9: have in it per year. Well, thanks Dave, appreciate the call.
29:06
Speaker 8: Thank you all.
29:07
Speaker 4: Yeah, appreciate that.
29:08
Speaker 7: Three or four three four five fifty fifty eight three
29:11
Speaker 7: or four three four five fifty eight fifty. So getting
29:13
Speaker 7: back to the hearing tomorrow, and again you don't know
29:16
Speaker 7: what's happening behind the scenes. There could be some negotiation
29:19
Speaker 7: between the parties, because that happens in every you know, the.
29:22
Speaker 8: Note's already been sold, so you don't have JPM. We're
29:24
Speaker 8: going to own it anymore.
29:26
Speaker 4: This collection company, this collection is right Collection.
29:28
Speaker 9: Right, and they they you know, there's kind of an
29:31
Speaker 9: equitable argument in the filing to that. You know, hey,
29:34
Speaker 9: first of all, it's going to do irreparable harm if
29:37
Speaker 9: this happens, because you're going to have the Greenbrier Hotel
29:39
Speaker 9: and maybe the rod around it and nothing else owned
29:43
Speaker 9: by whoever buys it on the courthouse steps. So I'm
29:47
Speaker 9: not sure how far that will get because that doesn't
29:50
Speaker 9: mean they're going to win the case. And then they
29:52
Speaker 9: have some argument about oral forbearance, like there's been some
29:58
Speaker 9: verbal promises or something from the that's I haven't seen
30:02
Speaker 9: that recognized in West Virginia, but it's a concept that's
30:05
Speaker 9: generally accepted across the country.
30:06
Speaker 8: But you still have to meet the general.
30:09
Speaker 9: Elements of a contract, like you can't have it on
30:12
Speaker 9: you have to have consideration, meaning something going both ways.
30:14
Speaker 9: So if the bank just says, hey, we'll hold off
30:16
Speaker 9: on collectingness for a while, but they don't get anything
30:19
Speaker 9: in exchange for doing that, I don't think the oral forbearance,
30:23
Speaker 9: the verbal promise is going to hold. Wait, ultimately, now
30:28
Speaker 9: you know the fact that they're arguing that Jim Justice
30:31
Speaker 9: didn't have a right to sign it, and then the
30:34
Speaker 9: oral forbearance thing is that gonna give enough to a
30:37
Speaker 9: judge in Greenbrier County to keep an injunct, grant an
30:40
Speaker 9: injunction and stop the sale. Maybe I think if you
30:43
Speaker 9: really get into it, their likelihood of succeeding on the
30:47
Speaker 9: merits is unlikely. So you know, I would think it's
30:51
Speaker 9: going to be a tough one for them if they
30:53
Speaker 9: don't work something out.
30:54
Speaker 7: But you know, well, what are the options, I mean,
30:56
Speaker 7: what would be there's I guess any number of options.
30:59
Speaker 7: More money or work something out. You could work out
31:01
Speaker 7: a new financial deal. Right, you pay the money, right.
31:04
Speaker 9: They could refinance it with I mean, I think that
31:07
Speaker 9: they've moved to accelerate the debt, meaning now they're saying,
31:09
Speaker 9: because it's in default the whole things do you can't
31:12
Speaker 9: just make back payments that were due. But they could
31:14
Speaker 9: refinance it. Somebody could come in and pay off the
31:17
Speaker 9: debt and the foreclosure sale stops. They could There's some
31:20
Speaker 9: allegation that there was a promise to they were going
31:23
Speaker 9: to sell some lots at Glade Springs, I think, and
31:27
Speaker 9: they would use that money to go towards this debt.
31:29
Speaker 9: And you know, if some of those sales are imminent
31:32
Speaker 9: or in contract, maybe they can work that out and
31:35
Speaker 9: delay the sale. I mean, I don't know this McCormick
31:38
Speaker 9: company that's trying to collect it. I don't know that
31:40
Speaker 9: they want to get in the resort business when you
31:43
Speaker 9: know they don't own the golf courses or all the
31:46
Speaker 9: amenities that go along with it. I mean, it's really
31:49
Speaker 9: gonna you know, you got a casino, You've got licensing
31:52
Speaker 9: issues with liquor lottery. It's not going to be something
31:57
Speaker 9: real simple. You've got folks that have I mean, like
32:00
Speaker 9: we have the state bar Board of Governors meeting that
32:03
Speaker 9: you know, I'm on the board of governors set for
32:05
Speaker 9: next April.
32:05
Speaker 8: So we're already arranging that, that's right.
32:09
Speaker 9: We're arranging to have sponsors and rooms and all of that.
32:11
Speaker 9: So it's it's very complicated.
32:15
Speaker 4: Let me ask you this.
32:16
Speaker 7: Yeah, but even if they would come to some agreement
32:20
Speaker 7: and put it off for a while, the larger thing
32:23
Speaker 7: is there continues to be issues with.
32:26
Speaker 9: Well that's the Here's where I mean, I hate it
32:28
Speaker 9: because I really think I don't know Jim Justice.
32:30
Speaker 8: I've actually never met him.
32:32
Speaker 9: I really thought and still think that he has the
32:36
Speaker 9: best interest in West Nia at heart, and I think
32:37
Speaker 9: he kind of I don't know if he saved the Greenbrier,
32:40
Speaker 9: I think Marriott or something was going to buy it,
32:41
Speaker 9: and so it was just going to turn into whatever
32:44
Speaker 9: that is, and and and not that I don't know
32:47
Speaker 9: it's as good as it was thirty years ago, but
32:49
Speaker 9: it's still there and it's still a gem of the state.
32:51
Speaker 9: So I don't like it. But I mean, some of
32:54
Speaker 9: these things we're seeing. There's been an allegation, I guess
32:58
Speaker 9: this week that you know, they've collected they're not paying
33:02
Speaker 9: the Greenbrier Hotel Corporation employees health insurance premiums and a
33:08
Speaker 9: portion of those apparently that that fringe benefit is not
33:11
Speaker 9: paid entirely by the company, so when they get their paycheck,
33:15
Speaker 9: you know they're having withdraws or debts for their health
33:18
Speaker 9: insurance premiums and those haven't been passed on to the
33:21
Speaker 9: health insurance company. That's kind of like the consumer sales
33:24
Speaker 9: tax deal where we've been guests have been paying that
33:27
Speaker 9: extra five percent or something and it's not being passed
33:30
Speaker 9: through to the state.
33:31
Speaker 8: That When you see those.
33:32
Speaker 9: Type things, that's when alarms start going off, because that's
33:36
Speaker 9: you know, you're robbing Peter to pay Paul almost literally,
33:40
Speaker 9: and it's just piling on and piling on. I think,
33:43
Speaker 9: I mean, if I think it's going to end up
33:45
Speaker 9: being a bankruptcy filing, and you know it happens sometimes
33:49
Speaker 9: Jim Justice Braggsy's tried to not do that. Son keep
33:52
Speaker 9: paying employees. It doesn't mean you don't still have to pay
33:54
Speaker 9: your employees if you file. If a company files bankruptcy,
33:57
Speaker 9: you're just reorganizing, and it will that would stop this
34:00
Speaker 9: foreclosure right now now, right now. They could file bankruptcy,
34:04
Speaker 9: and there's an automatic stay when bankruptcy is filed that
34:07
Speaker 9: stops all collection efforts at least temporarily. And I don't
34:10
Speaker 9: do much bankrupt I do bankruptcy when I represent plaintiffs
34:14
Speaker 9: in where they've been injured or financially harmed and the
34:16
Speaker 9: defendant tries to bankrupt the claim, then I get into
34:19
Speaker 9: bankruptcy court to resolve it. But I know enough generally
34:23
Speaker 9: that you know it would be a reorganization where they
34:25
Speaker 9: could probably shed some debt. A lot of that I'm
34:28
Speaker 9: seeing it can't be completely discharged. It's it's you generally
34:32
Speaker 9: still get your collateral. You might not be able to
34:34
Speaker 9: collect anything beyond that if, for example, on a mortgage
34:38
Speaker 9: property like this, but it would stop it for now,
34:41
Speaker 9: and a lot of times what it will do is
34:44
Speaker 9: loosen up some cash. I think, you know, even if
34:47
Speaker 9: they want to pay this, I'm not sure they can
34:50
Speaker 9: because you think we'll sell your assets, sell off these
34:54
Speaker 9: mind holdings. The problem is, and it's not in commed
34:57
Speaker 9: these commercial loans. I mean, like everything's leveraged for these
35:00
Speaker 9: bigger loans, the Carter Bank deal, the Swiss credit Swiss.
35:03
Speaker 9: You know, so when you go to sell, these liens
35:05
Speaker 9: are on record, they're noted, and there's other judgment lians
35:09
Speaker 9: and so you can't sell your assets like I can't
35:13
Speaker 9: sell that to Jeff Jenkins without satisfying these creditors. And
35:16
Speaker 9: at this point, you know, you maybe you could work
35:19
Speaker 9: out a deal where you say, hey, I want to
35:20
Speaker 9: at least get ten percent cash out of this creditors.
35:25
Speaker 9: What there's so many now, I think any any cells
35:27
Speaker 9: that happen one hundred percent of the net proceeds after
35:30
Speaker 9: closing costs or whatever costs there are for the professionals
35:34
Speaker 9: that handle it are going back to the to the creditors.
35:37
Speaker 9: So there's not the way I'm looking at it from
35:40
Speaker 9: from a satellite view.
35:41
Speaker 8: I don't see what there's a way unless.
35:42
Speaker 9: Somebody else swoops in another third party to you know,
35:47
Speaker 9: get cash to pay these off. And so I don't
35:49
Speaker 9: I don't really see whether it's going to end up
35:51
Speaker 9: being much option other than bankruptcy, just based on what
35:54
Speaker 9: I'm all the things I'm seeing, and you get a
35:57
Speaker 9: you know, a healthcare plan like that that isn't being
35:59
Speaker 9: fun to well. I had one one time. I got
36:02
Speaker 9: hooked up with some kind of trust for health insurance,
36:06
Speaker 9: and all of a sudden, my my doctor business weren't
36:09
Speaker 9: betting paid. And I called the third party minister, so
36:11
Speaker 9: well we aren't getting paid. Well, I'd paid premiums and
36:15
Speaker 9: the principles that come and just run off with it
36:17
Speaker 9: and a lot of people in that and Department of
36:20
Speaker 9: Justice took over though, because it's governed by the what's
36:23
Speaker 9: called the Arista Law Employee Employee Retirement Income Security Act,
36:28
Speaker 9: and so the DOJ can step in civilly and liquidate
36:32
Speaker 9: and take over and then kind of manage where that
36:35
Speaker 9: money goes. But it's then they go after the folks
36:37
Speaker 9: who absconded.
36:39
Speaker 8: With the funds.
36:40
Speaker 9: And you know, I don't know about the Greenbrier paying
36:42
Speaker 9: their portion, but collecting and collecting from your employees' wages,
36:48
Speaker 9: you know, deducting health insurance teams and not passing them
36:51
Speaker 9: on to the health insurance. That wasn't my case because
36:53
Speaker 9: it wasn't an employer sponsored plan. But that's that brings
36:57
Speaker 9: in all kinds of major problems, wage a hour issues
37:01
Speaker 9: and because they actually aren't getting paid, I mean they
37:03
Speaker 9: aren't getting paid.
37:04
Speaker 4: All right, we've got thirty seconds, Tom, Hey, Yeah, yeah.
37:07
Speaker 8: We talked about a lot of stuff today. But no,
37:09
Speaker 8: what we do we do a lot of trial work.
37:11
Speaker 9: So if you've been hurt in an automobile accident or
37:13
Speaker 9: or hopefully not be you've had a family member who's
37:16
Speaker 9: who's suffered a severe injury or they're passed away and
37:20
Speaker 9: you think that it's someone else's fault and you just
37:23
Speaker 9: want to ask some questions about it, give us a call.
37:25
Speaker 8: That's what we do.
37:26
Speaker 9: We try cases, and we do well and so if
37:29
Speaker 9: you have issues like that, give us a call. But
37:31
Speaker 9: things like we talked about today, real quick information, you know,
37:33
Speaker 9: you can email us at Peytonlawfirm dot com and we
37:36
Speaker 9: are glad to give the same type of information we
37:37
Speaker 9: give today to you at no charge.
37:39
Speaker 7: All right, Peyton Lawfirm dot com. Seven five five five
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