Archive for October, 2009
Sunday, October 18th, 2009
As you may know, there are both federal and state laws that offer a variety of protections to individuals who are in debt and who are being dunned by debt collectors. The Fair Debt Collection Practices Act offers a variety of protections in cases involving collection agencies (as opposed to the actual creditor). In other words, a credit card company can do and say certain things and remain legal, but if a collection agency does or says the exact same things, those actions would be a violation of the FDCPA and make the collection agency subject to a claim for damages.
Two of the protections provided by the FDCPA include:
- a prohibition against communicating with a debtor when the collection agency employee does not identify himself as a debt collector; and
- communicating about your debt with third parties
The 11th Circuit Court of Appeals (which provides controlling precedent for Georgia) recently issued an important decision that struck down a somewhat bizarre argument by a debt collector regarding phone messages. This case benefits consumers by clarifying the rules about telephone messages by bill collectors.
The case of Edwards v. Niagara Credit Solutions involved a situation in which the debt collector (Niagara) left "bare bones" messages on a phone answering machine asking Ms. Edwards to call back about an "important matter."
Niagara argued that its employee did not identify itself as a debt collector because someone other than the debtor might hear the message, thus violating the "third party communications" prohibition.
The 11th Circuit rejected Niagara's argument, stating that it is not permissible to violate one provision of the FDCPA in order to comply with another provision. The Court further noted that the FDCPA does not guarantee a debt collector the right to leave answering machine messages.
What does this mean to you? If an unknown party leaves you a message asking that you call about an "important matter" you should save the message and contact a lawyer knowledgeable about FDCPA actions. If a debt collector leaves you a message and identifies himself as a representative of a collection agency or otherwise discusses a debt that you may owe, save that message as well. You may have a cause of action for damages.
Posted in Consumer Protection, Edwards v. Niagara Credit Solutions, FDCPA Claims, fdcpa violation | Comments Off
Saturday, October 17th, 2009
Jessica Bennet asked: If you have too much of debt and there’s no income as such to support your debt payments, bankruptcy filing may be the only option for you.
However, you need to get an idea as to what bankruptcy is all about and how it can affect you once you file it. Given below are the 5 things you should surely ask before you file bankruptcy.
1.Find out if you’re eligible to file: If you have more than enough income and asset limit, you may not be allowed to file Chapter 7. In such a case, the court may ask you to file Chapter 13 which is basically a repayment plan developed in order to help you pay off debt within a period of 3-5 years. So, it’s important for you to know under what conditions bankruptcy filings are possible.
2.Know what debts won’t be wiped out: It’s essential to find out those debts which cannot be canceled or wiped out through bankruptcy filing. There are certain debts such as student loans, child support, back taxes, alimony etc which cannot be discharged or wiped out in bankruptcy. So, it’s no use including such debts into your filing.
Credit cards and personal loans are debts, which can be discharged through bankruptcy filings. But if they are fraudulent debts (for example: you have lied on your credit application), then you will not be able to include them in your bankruptcy filing.
3.Effect on your spouse or cosigner: Bankruptcy filing won’t affect your spouse unless his/her name is on the debt account. If you’ve filed Chapter 7, your spouse’s credit will get tarnished along with yours. But Chapter 13 will protect your spouse or cosigner as it is a sort of repayment plan that allows you to reorganize your debts.
4.You may be able to keep your home/car: Chapter 13 bankruptcy filing will help you to keep your home or car as you’re making payments under a court-approved payment plan. But if you file Chapter 7, chances are that you may lose your home or car if your home equity is more than the Federal or State exemptions applicable in your state of residence.
5.Know if your 401k plan and insurance policies are safe: Retirement plans such as 401k, 403b etc and pension are protected under the Federal law. As such, they won’t be affected by bankruptcy filings. However, IRAs and Keogh plans may not be entirely protected, but they do have exemptions (for example: creditors cannot take up to the first $1 million of your funds in an IRA) defined under the bankruptcy laws.
Bankruptcy filings can help you get out of debt or restructure payments depending upon whether you qualify for Chapter 7 or Chapter 13. However, just make sure you’re quite comfortable with disclosing your financial details to your creditors as well as the bankruptcy court.
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Friday, October 16th, 2009
Miodrag Trajkovic asked: It is better to realize as early as possible that going through a bankruptcy claim is not easy. People generally opt for it as their first remedy. You must know the bankruptcy laws well in order to decide.
The bankruptcy law has been crafted in a way to promote provisions that are a part of filling bankruptcy claims. It contains systematized laws that help the debtor to rid himself of any financial obligations that he has to undergo. The Chapter 7 bankruptcy law is in other words called straight bankruptcy. This law deals with the liquidation process. According to this, the one who is filing for bankruptcy has to surrender all his assets except those that are unaccredited or exempted to the lawyer or the trustee in bankruptcy.
The court must appoint a trustee in bankruptcy and he will be given charge of selling the assets or converting them into cash. Once the assets have been converted to cash the creditors are paid with these funds. Under the Chapter 7 bankruptcy law you are discharged from any obligation after a period of four months.
When can you apply the Chapter 7 bankruptcy law? It is applied when the debtor is left with no property to give up or lose. This is one of the most common bankruptcies that are filed in the United States by either individuals or business corporations. You could personally file bankruptcy by abiding with the Chapter 7 bankruptcy law or the court may impose it.
The Chapter 7 bankruptcy law will prompt a business man to sell all his assets and pay what he owes the creditors and finally close down his business. The procedures are very similar for individuals who have been forced to file under the Chapter 7 bankruptcy law, the only difference here is the individual will have no business to close down.
The advantages of filing a claim under the Chapter 7 bankruptcy law first and foremost are that any amount of debt may be cleared and as soon as you get out of the trouble you are in, you get a clean chit. The other advantage is that there is no particular amount of debt to qualify you for filing under the Chapter 7 bankruptcy law. As there is a protection that is granted by this law, the creditors cannot exert any authority over you. It is processed very quickly and you can be discharged from any debts in a short period, say in about four to six months.
The disadvantage of the Chapter 7 bankruptcy law is that you have to give up your whole property. Debts like taxes, child support, housing mortgages, students’ loans and car loans are not discharged under the Chapter 7 bankruptcy law. Along with you the co-signers will also be pulled in and asked to pay for your home loan. This law may be only availed once in every six years.
It becomes difficult to avail other loans because your credit rating gets damaged. Once you have filed for the Chapter 7 bankruptcy law, it cannot be withdrawn.
Tread cautiously if you are considering filing under the provisions that are based on the Chapter 7 bankruptcy law. All you need is to be protected and not end up with added problems.
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Friday, October 16th, 2009
To read this article on bankruptcies in the fashion industry published by American Lawyer, please click here, or visit the AmLaw Daily website.
Posted in Other Nationally Significant Cases | Comments Off
Thursday, October 15th, 2009
Yesterday morning Attorney Carmen Dellutri and David Lampley were on Fox 4 Rising discussing the Dellutri Law Group's Mortgage Modification workshop, held at Florida Rural Legal Services in Fort Myers. For more information on when and where this workshop is held, please visit Fox 4 Rising, or contact out office at 239-939-0900 Ext. 237.
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Thursday, October 15th, 2009
Yesterday morning Attorney Carmen Dellutri and David Lampley were on Fox 4 Rising discussing the Dellutri Law Group's Mortgage Modification workshop, held at Florida Rural Legal Services in Fort Myers. For more information on when and where this workshop is held, please visit Fox 4 Rising, or contact out office at 239-939-0900 Ext. 237.
Posted in Finance | Comments Off
Wednesday, October 14th, 2009
Tomas Loden asked: If you are considering filing for personal bankruptcy, Here are some of the myths and facts about it.
1)Will Bankruptcy Stop Foreclosure On My Home? If your home is in foreclosure, Chapter 13 Bankruptcy will stop the foreclosure at any time prior to the sale. Note; bankruptcy does not eliminate mortgages on your property.
2) Credit after bankruptcy. Some banks offer credit to “potentially” risky customers. The debtor puts up a small amount of money in order to secure payment in the future. Once the debtor proves his ability to pay, his credit limits are raised. In recent years, creditors have looked more to a debtors stability, as opposed to the fact you filed for bankruptcy. Call you bank now and tell them about your situation, help can be closer thn you think.
2) Filing bankruptcy with a bankrupct expert lawyer is often the best option. If you are facing financial problems and you are seriously considering filing for personal bankruptcy, you should speak to a bankruptcy expert lawyer. Bankruptcy can be a very difficult, complex and very complicated legal process, so it is very important to seek an experienced and skilled bankruptcy lawyer. Filing for bankruptcy is a complex and time consuming process that can leave you overwhelmed. Look online and dp some research, ut can save you time andlots of money.
3) You can not file for Personal Bankruptcy… Or? The truth is that anyone can today file a personal bankruptcy. You will have no difficulties at all. Changes made by the US Congress in early 2005 allow any debtor to file for personal bankruptcy. Bankruptcy is also now governed by state laws. The laws differ from state to state, with mounds of legal paperwork to complete, so be sure that the lawyer you select is an expert in this field. take your time and do your research, again this can save you lots of time and money.
4) Individuals wishing to file bankruptcy under Chapter 7 or Chapter 13 must show proof of income by providing federal tax returns from the last tax year. If an applicant is ineligible for filing under Chapter 7, he or she must file under Chapter 13 instead. Ask ae bankruptcy expert about this..
5) One of the most confusing parts of the new bankruptcy law is the bankruptcy means test. With the new bankruptcy laws in effect, debtors have to first pass a 2 part “means” test before filing for Chapter 7.
The actual test is alot like doing your taxes. The means test revolves around the median state income for the state in which the debtor will file bankruptcy. Under the “Means Test”, any creditor, trustee or judge will look at your monthly income, minus certain living expenses like food and rent. Your Chapter 7 bankruptcy will likely be successful if you are unable to pay at least $6,000 or $500 per month over the next 5 years.
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Tuesday, October 13th, 2009
Black Book Data asked: You just graduated from law school and are now ready to make money while helping people resolve their legal problems. You decide that you will partake in the bankruptcy niche, since that area of law seems to be in high demand, especially considering all the foreclosures that are happening. You put some ads in the paper and acquire a few clients. But you want to get more without breaking your budget. The best way to do this is to look into buying bankruptcy leads.
What are bankruptcy leads and how do they work? Bankruptcy leads contain information relating to people who are considering bankruptcy or may have already filed bankruptcy. The latter won’t do you much good unless you’re offering a service that can help rebuild credit. So, your best bet involves looking into the first option, which allows you access to ‘true’ bankruptcy leads. These are the individuals that are basically ready to file bankruptcy to avoid legal consequences, whether it’s a lawsuit, wage garnishment or foreclosure.
Bankruptcy leads can come in a variety of forms, ranging from a list of emails to a collection of addresses. Most companies offering bankruptcy leads tend to provide them in the form of addresses, since there’s a lot of controversy surrounding bulk email campaigns. This means that when you build up your bankruptcy mailing list, you’ll probably have to use direct mailing to advertise to your potential clients.
Of course, this doesn’t mean that the leads within your bankruptcy mailing list can’t convert for email marketing. In fact, this can be an excellent way to ensure your bankruptcy leads will eventually take advantage of your services. All you have to do is create an informational e-book explaining how bankruptcy can free a person of their financial problems. Such an e-book can explain: the legal consequences of avoiding debt, how Chapter 13 bankruptcy can avoid foreclosure and how bankruptcy doesn’t mean the end of a person’s credit history. From there you create a website. This website should promote your services as well as the free e-book you’re offering. Don’t forget to advertise this website when sending out flyers to those on your bankruptcy mailing list. They will want to visit the website because they would be getting a free e-book. But before you allow them to access the e-book, make them provide at least an email address and their first name. It is through this email address you will send them e-courses further explaining the benefits of filing for bankruptcy.
So, what can you expect to pay if you build a bankruptcy mailing list through bankruptcy leads? It will depend on how many leads you buy as well as the company you buy them from. Usually, you can get thousands of bankruptcy leads for a few hundred dollars. Of course, you will still need to pay for your direct mail campaign as well. If you use a professional service to conduct your campaign, expect to pay several thousand dollars. But if you do it yourself, you really will only have to worry about the cost of stamps, printing cartridges, envelopes and paper. If you’re a beginner at direct mail marketing, don’t be afraid to advertise in a simpler way to the individuals on your bankruptcy mailing list. It may be a bit more crude, but you don’t need fancy postcards or circulars to get people to respond.
Disclaimer:This blog or article is for information purpose only, and should not be treated a professional advise or price protection guarantee. This blog is mainly used for search engine optimization and other commercial purposes and it is advised that readers seek professional consultation in the field of interest for more information.
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Posted in Business | No Comments »
Tuesday, October 13th, 2009
Most people who file bankruptcy are good people who do not abuse the bankruptcy system. In fact, almost all of my bankruptcy clients feel bad about wiping out debts they believe they are morally obligated to pay. Then, once in a while, I encounter the sleazy debtor who tries to use Chapter 7 bankruptcy to steal as much money he can from his creditors.
I received a phone call last week from a prospective bankruptcy debtor who asked me about the following pre-bankruptcy planning scenario. One of his good friends was planning do a home repair with a cost of about $25,000. The friend agreed to pay this caller $25,000 in cash which the caller would then hide under the mattress. The caller would pay for his friend’s home repair on his personal credit cards. He would make minimum payments for a few months. Then he would file Chapter 7 bankruptcy and discharge the debt for his friend’s $25,000 repair bill as well as all his previous credit card debt. He wasn’t asking me to take him as a client, but he wanted to consult with me to see if his plan would work.
This is bank robbery under the disguise of bankruptcy. I suspect these types of scams usually slip through the bankruptcy system. This guy will probably get away with it because he’ll not disclose the arrangement to his bankruptcy attorney. It bothers me because, as I said above, the overwhelming majority of bankruptcy debtors are honest people who lost income and are without adequate savings, or are people who bought things they could not afford in order to live above their means. In either case, most bankruptcy debtors do not intentionally borrow money with no intent of trying to pay back the money.
Posted in Bankruptcy Questions | Comments Off
Tuesday, October 13th, 2009
For the first time since means testing was instituted in 2005, the median income number in Georgia have gone down. This means that potential Chapter 7 debtors will have a more difficult time avoiding a "presumption of abuse" and the extra cost and hassle of means test calculations.
Here is a comparison table
Current Median Income Numbers Median Income numbers after November 1, 2009
Family size
1 $40,760 $40,691
2 $54,054 $55,258
3 $61,959 $61,104
4 $71,554 $68,502
Let's consider how this change affects you if you have a family of 4. If you file by October 31, 2009, you can have household income of $71,554 and still qualify for Chapter 7 without having to qualify under the means test. As of November 1, 2009, if you earn $71,554, the presumption of abuse arises and you must try to qualify by rebutting the presumption using the means test.
If your six month average gross income (April-September) is close to the current median income numbers and you expect the May-October numbers to be similar, it may make sense to try to file prior to November 1 – or at least to discuss this possibility with your lawyer.
Posted in Means Test issues, Median income test issues, deciding when to file bankruptcy, median income tables | Comments Off
