April 21, 2015

What It Takes to Win in Court: Building the "Paper Trail"

Probably one of the most frequent problems I encounter with new cases clients bring to my office is the lack of documentary evidence.

No one bothers to put down in writing that agreement with the brother-in-law or "friend" about the business they were starting together, the house one was going to buy (by signing on the mortgage) and which the other was going to "own" (by going on the title) and paying the mortgage, the investment they were going to make together, or any other manner of legal arrangements.

Then, when things "go south" and the "owner" does not pay the mortgage or the business fails (or even prospers, in which case you will see fights over profits), the differences in each person's understanding of what was agreed becomes painfully obvious.

But what's worse is that the prospective client has nothing in writing to back up his side of the story. It becomes a "he said / she said" dispute hard to win in court. Convincing a judge or jury of the rightness of your position is now just a coin flip.

Personal injury attorney Paul Samakow discusses this problem well in a recent article. I commend it to you:

Good day my friends.

Hope you will read my latest article. Last week I advised that I was running for President. So far, no contributions. No problem, I still love you.
This week's article is a compilation of really interesting "family law" matters across the country, including Sophia Vergara, shooting your mother-in-law, Burger King paying for a wedding and more.

Leading Edge Legal Advice For Everyday Matters

My advice for this week is seemingly common sense, but very important. If ever, whenever, you find yourself embroiled in any controversy that could elevate to hiring an attorney and having a lawsuit filed, the single most important thing you can do to prepare is simply that: Prepare. Be aware of potential problems.

A neighborhood disagreement that doesn't resolve.

A vehicle repair that is taking too long and isn't being resolved or a consumer product a retailer isn't fixing or replacing.

Any time you borrow or loan money.

Anything involving a landlord.

ANYTHING involving the police.

Anything involving a credit card.

Preparing means keeping notes. Document everything. Document conversations. Communicate via email and save the emails, and print them out and put them in a file.

Get witnesses to write statements that are signed and dated.

There is nothing worse than being right and not being able to prove it. The requirement to "win" in a court of law is that the party seeking relief must have at least "a preponderance" of the evidence; that means at least 51%.

If a case boils down to my word vs. yours, I lose, not because I "lose" but because I didn't have the evidence, or the proof, to "win." A judge cannot arbitrarily pick one side or the other in a dispute.

Written documentation will carry the day. The documents do not have to be notarized. They do not have to be perfectly written. They just need to exist and be credible.

Have a good week... Paul

Virginia & Maryland Injury Claims
703-761-4343 or 301-949-1515

Paul is absolutely on target. I remember representing a client a few years ago whose bank account had been drained by a "friend" to whom he had given signature authority to pay his bills while he was out of the country. She helped herself to all his money. When he sued her to get his money back, about $30,000, she filed bankruptcy as soon as he got a judgment against her claiming he had made a loan to her.

Fortunately, when they went to the bank to give her signature authority, he had had her sign a simple three line agreement stating that she would be "on" the account, but that the money "belonged" to him.

They did not use legal terminology, but it was clear that they had intended a "trust" in which he as the "beneficiary" for whose benefit the money was to be spent, and she was a "trustee" with power only to use it on his behalf -- not spend it on herself.

The writing was sufficient to convince the judge what she did was an illegal "breach of fiduciary duty" and stopped the discharge of her debt to him.

"Put it in writing," as they say. Even it's merely a note or a letter to the other side to acknowledge your understanding of the deal. (Of course it's better to have documentation drafted by a lawyer, but something is better than nothing.)

This is good advice. All of us lawyers endorse it. Keep it in mind.

April 3, 2015

What's Worse Than a BAD Credit History? NO CREDIT HISTORY AT ALL!

It may not be a well-know fact, but the truth is a lot of financially-responsible people are turned down for loans because they have NO history of recent borrowing. None.

This may be because the person saves up and pays for purchases without financing, or because they have not bothered to start building a new credit history by borrowing (and showing on-time payments) after a major financial event such as a bankruptcy or foreclosure.

After a bankruptcy discharge, a debtor needs to make sure that, after his or her case closes, there is a new credit history being reported with either new lines of credit that are opened, or old lines that were maintained and still being used.

Many of these individuals are credit-worthy but the current credit reporting and scoring system is not set up to evaluate this.

To get at this problem, Fair Issac Corp, also known by the acronym "FICO," announced this week it is launching a pilot program to provide credit scores using alternative data including payment history on utility bills, cable bills and cellphone bills as well as other information in the public record such as the number of addresses the person has had in the recent past (an indicator of stability).

Right now some 53 million Americans don't have FICO scores. Under the new system, it is estimated some 15 million will now be scorable for credit application purposes.

The program is not without it's critics. Some consumer advocates are afraid that the new system will add more sources of possible negative information which could be problematic for consumers living in extreme climates where utility bills can sometimes spike causing the customer to fall behind on a payment.

And of course the new program is being encouraged by lenders to open up credit markets for more people.

March 4, 2015

If You Have a Mortgage With Chase and Were in Bankruptcy, You May Be Getting a "Break" from Them Soon

Admitting it was a "bad boy" handling mortgages in bankruptcy, Chase recently entered a settlement with the federal government to compensate more than 25,000 US homeowners. The settlement is subject to court approval.

The United States Trustee Program, a unit of the Department of Justice whose attorneys at the bankruptcy court oversee the integrity of the system, announced on March 3 it had reached an agreement with Chase forcing it to pay homeowners $50 million in cash, mortgage loan credits and loan forgiveness for "robo-signing" and other improper practices before the bankruptcy court. Chase also agreed to change internal operations and submit to the oversight of an independent compliance reviewer.

Chase admitted it submitted more than 50,000 mortgage "payment change notices" that were signed by persons who had no knowledge of the accuracy of the notices they signed:

  • More than 25,000 of the notices were signed by employees or former employees who had nothing to do with reviewing the accuracy of the notices.

  • The rest of the notices were signed by employees of third party vendors who also were not involved in verifying the accuracy.

Chase also admitted it failed to file the notices in a timely fashion, as well as failing to provide timely escrow statements to homeowners in bankruptcy.

"It is shocking that the conduct admitted to by Chase in this settlement, including the filing of tens of thousands of documents in court that never had been reviewed by the people who attested to their accuracy, continued as long as it did," said Acting Associate Attorney General Stuart F. Delery. "Such unlawful and abusive banking practices can deprive American homeowners of a fair chance in the bankruptcy system, and we will not tolerate them."

"This settlement should signal once again to banks and mortgage servicers that they cannot continue to flout legal requirements, compromise the integrity of the bankruptcy system and abuse their customers in financial distress," stated U.S. Trustee Program Director Cliff White.

Under the proposed settlement, Chase agrees to provide payments, credits and contributions totaling more than $50 million:

  • Chase will provide $22.4 million in credits and second lien forgiveness to about 400 homeowners who received inaccurate payment increase notices during their bankruptcy cases.

  • Chase will pay $10.8 million to more than 12,000 homeowners in bankruptcy through credits or refunds for payment increases or decreases that were not timely filed in bankruptcy court and noticed to the homeowners.

  • Chase will pay $4.8 million to more than 18,000 homeowners who did not receive accurate and timely escrow statements. This includes credits for taxes and insurance owed by the homeowners and paid by Chase during periods covered by escrow statements that were not timely filed and transmitted to homeowners.

  • Chase will pay $4.9 million, through payment of approximately $600 per loan, to more than 8,000 homeowners whose escrow payments Chase may have applied in a manner inconsistent with escrow statements it provided to the homeowners.

  • Chase will contribute $7.5 million to the American Bankruptcy Institute's endowment for financial education and support for the Credit Abuse Resistance Education Program.

If approved by the court, homeowners will get notification from Chase to any relief for which they are eligible.

If you have questions or concerns about your situation, contact our law office.

January 20, 2015

Avoid Scams: IRS does NOT contact taxpayers by email!

It's tax season and the scam artists are also out in force. Even our law office -- which specializes in tax matters -- recently got an email asking us to pay a phony tax bill!

There are a number of scams out there with criminals pretending to be IRS agents and contacting persons by email and telephone trying to get them to pay up a phony tax debt.

The single most effective rule to remember is this: IRS does not make initial contact with taxpayers by email. If there is a tax problem, you will be notified by mail. Period.

Below is a press release from IRS warning taxpayers about telephone scams that are also common.

IRS Reiterates Warning of Pervasive Telephone Scam

R-2014-53, April 14, 2014

WASHINGTON -- As the 2014 filing season nears an end, the Internal Revenue Service today issued another strong warning for consumers to guard against sophisticated and aggressive phone scams targeting taxpayers, including recent immigrants, as reported incidents of this crime continue to rise nationwide. These scams won't likely end with the filing season so the IRS urges everyone to remain on guard.

The IRS will always send taxpayers a written notification of any tax due via the U.S. mail. The IRS never asks for credit card, debit card or prepaid card information over the telephone. For more information or to report a scam, go to www.irs.gov and type "scam" in the search box.

People have reported a particularly aggressive phone scam in the last several months. Immigrants are frequently targeted. Potential victims are threatened with deportation, arrest, having their utilities shut off, or having their driver's licenses revoked. Callers are frequently insulting or hostile - apparently to scare their potential victims.

Potential victims may be told they are entitled to big refunds, or that they owe money that must be paid immediately to the IRS. When unsuccessful the first time, sometimes phone scammers call back trying a new strategy.

Other characteristics of this scam include:

• Scammers use fake names and IRS badge numbers. They generally use common names and surnames to identify themselves.
• Scammers may be able to recite the last four digits of a victim's Social Security number.
• Scammers spoof the IRS toll-free number on caller ID to make it appear that it's the IRS calling.
• Scammers sometimes send bogus IRS emails to some victims to support their bogus calls.
• Victims hear background noise of other calls being conducted to mimic a call site.
• After threatening victims with jail time or driver's license revocation, scammers hang up and others soon call back pretending to be from the local police or DMV, and the caller ID supports their claim.

If you get a phone call from someone claiming to be from the IRS, here's what you should do:

• If you know you owe taxes or you think you might owe taxes, call the IRS at 1.800.829.1040. The IRS employees at that line can help you with a payment issue, if there really is such an issue.
• If you know you don't owe taxes or have no reason to think that you owe any taxes (for example, you've never received a bill or the caller made some bogus threats as described above), then call and report the incident to the Treasury Inspector General for Tax Administration at 1.800.366.4484.
• You can file a complaint using the FTC Complaint Assistant; choose "Other" and then "Imposter Scams." If the complaint involves someone impersonating the IRS, include the words "IRS Telephone Scam" in the notes.

Taxpayers should be aware that there are other unrelated scams (such as a lottery sweepstakes) and solicitations (such as debt relief) that fraudulently claim to be from the IRS.

The IRS encourages taxpayers to be vigilant against phone and email scams that use the IRS as a lure. The IRS does not initiate contact with taxpayers by email to request personal or financial information. This includes any type of electronic communication, such as text messages and social media channels.

The IRS also does not ask for PINs, passwords or similar confidential access information for credit card, bank or other financial accounts. Recipients should not open any attachments or click on any links contained in the message. Instead, forward the e-mail to phishing@irs.gov.

More information on how to report phishing scams involving the IRS is available on the genuine IRS website, IRS.gov.

You can reblog the IRS tax scam alert via Tumblr.

If you have, or think you have a real tax problem, call our office. We'll be happy to talk to you.

December 10, 2014

Five Holiday Deal "Gotcha's"

Here are common holiday "deals" that look good on the surface -- but are financial time bombs waiting to go off. Thanks to USAA financial services for bringing them to my attention. I share them with you:

1) "90-days same as cash." Don't pay it in time and you could be hit with accumulated finance charges and double-digit interest rates. Now it's no longer such a good deal.

2) "5 years interest free." Don't believe it. They cannot stay in business if they don't put interest somewhere in the charge to pay for their own loans. The charge is probably hidden in the price. Or maybe enough borrowers fail to meet the terms and get hit with suspended accumulated interest to make the business practice a money-maker.

3) "Skip a payment." There's no free lunch (if I may coin a phrase). The interest may be folded into principal increasing the cost of your financing. They are not doing you favors.

4) "20% discount for opening a store credit card." Credit scores also take into account the amount of credit lines you have, as well as the frequency and recency of credit applications. You may be dinging your credit to save a few dollars. By the way, for many companies, the real money is in the financing, NOT the goods they selling. I remember the harangue I got from a dealer once for buying a car with cash and another time from a Dell salesman when I bought a set of office computers. That was instructive. (Undoubtedly the sales persons got bonuses for financed purchases.)

I would add a fifth "no no":

5) "Interest-free balance transfers." Read the fine print and understand the transaction. Many such offers say that you can transfer interest free for a period to time but charge you a one-time transfer fee. For example, a transfer that is "interest-free" for 9 months with a one-time transfer fee of 6% is effectively 8% per annum interest. Watch out.

October 23, 2014

How to Pay for Your Bankruptcy Case

One of the most frequent questions I get is: "How am I going to pay the attorney's fees and costs for a bankruptcy?"

Yes, we know you're seemingly strapped, but you actually have more resources than you realize.

Here are some:

1) Stop paying on the debt you are going to discharge anyway. In bankruptcy, almost all debts are dischargeable (wiped out). (There are a few, such as governmental fines, recent taxes, etc., but your bankruptcy attorney will identify them and discuss them with you.) The majority, such as credit cards, unsecured lines of credit, judgments, will be gone. Stop paying immediately and save up that money to finance your case. These are professional lenders, they understand.

And, by the way, once you hire an lawyer, you can stop the collector calls by simply telling them you have hired a bankruptcy attorney to prepare a case. Give them the name of your attorney, because they will call to confirm, and the calls will stop.

Professional lenders know they will be violating a court order by calling once you have filed, and since they don't know when you will file, as a matter of company policy, they usually stop the calls altogether. Whew.

2) Get a "loan" from your secured lenders. If you have a mortgage on a house you want to keep, you may actually be doing the mortgage lender a favor by skipping a couple payments to pay for your case. If your goal is to save your home, you will probably be filing a Chapter 13 bankruptcy to catch up on your back payments -- "cure the default" -- and make your regular payments going forward.

Believe me, the bank does NOT really want to take your home. They are not in the real estate business. They are in the lending business. They want you to pay the mortgage and pay the arrears -- that's where they make money. If you skip a couple payments to get the money to set up a payment plan to pay them in Chapter 13, as well as freeing up more money by wiping out your other "junk" debt, such as credit cards, as a business matter, they won't mind. You're going to pay back the missed payments in the plan anyway.

3) Get help from friends and family. Now is the time to reach out. Everybody has somebody who will help. Think. Oftentimes, it's somebody from your community, such as church or social group, with whom you have an affinity that will be there for you. You may be surprised.

And here's the benefit to them: Once you're debt-free, you'll have even more resources to be able to pay them back. And no. Please, don't tell me you have no friends and/or no family. If that's the case, you may need a Dale Carnegie course. (Remember him? The author of "How to Win Friends and Influence People." Google it.)

4) Take a "hardship loan" from your retirement plan. If you have a retirement plan at work, call the administrator and see if you can apply for a hardship loan from the plan. Most plans have this feature. Make sure it's a loan, do NOT take a withdrawal. If you take money out of retirement plan (as opposed to a loan you pay back), you will have to pay taxes on it as well as 10% penalty. I see too many people turn a debt problem into a tax problem (which is way more expensive and onerous) when they take out withdrawals from the retirement plan to pay debts. It's a no-no.

5) Use your tax refund. Like accountants, January through April can busy months for bankruptcy lawyers. Many people use their tax refund to pay the costs of a bankruptcy filing. It may work for you, too.

6) Go hi-tech: Crowd-fund your case. The Wall Street Journal today ran an article on the innovative use of "crowd-funding" to raise money for a variety of personal projects and causes, including:

  • A 26-year-old woman trying to raise $3,000 on GoFundMe.com to go to circus school to be an acrobat.

  • A group of young women using Tilt.com to raise money from participants for a bachelorette party.

  • A 55-year-old woman who got laid off from her job, needed a break and got her friends to chip in $5,000 for a trip to Italy.

A quick perusal of the sites showed a variety of causes seeking funds for help for medical bills or funeral costs.

Who knows? It could be the wave of the future.

There are other ways to get the money to pay for a bankruptcy filing, depending on your particular situation. Sit down with an experienced bankruptcy lawyer and discuss it. We're creative. Give our office a call.

July 25, 2014

When Qualifying for a Loan: It's Not Your Credit Score that Matters -- It's How Much Debt You're Carrying

Probably the most frequent question I get from prospective clients is: "Will bankruptcy hurt my credit score?"

It's a fair question, but I usually find it a little amusing. It's a bit like the man who's drowning worrying about how he's dressed.

For most people, by the time they see a bankruptcy attorney the financial problem is extreme -- the garnishment has begun, the foreclosure is imminent, the summons has arrived setting a court date, or the collector calls are now coming every hour. And, of course, at this stage, the person's credit score is in the tank. It cannot get worse.

By clearing away debt, I explain, they will improve themselves to get a loan.

A recent survey of credit-risk managers at lenders by credit-score giant FICO, reported in the Washington Post, confirms what I have been saying all along: When it comes to qualifying for a loan, it's the amount of debt you are carrying, not your credit score that matters most.

"Researchers asked a representative sample of them what single factor makes them most hesitant to fund a loan request -- in other words, what's most likely to prompt them to say no.

Tops on the list? Surprise, it's not your credit scores. And it's not how much you've got for a down payment or what you have in the bank. It's your DTI -- your debt-to-income ratio. Nearly 60 percent of risk managers in the FICO study rated excessive DTIs as their No. 1 concern factor. . . "

Again, I repeat, for 60% of bankers it's the amount of debt the credit applicant is carrying that is the disqualifier, not the credit score!

"Debt-to-income ratios for home loans are the most direct indication about whether you are going to be able to afford to repay the money you want to borrow," says the article.

Basically, bankers look at two ratios to determine whether they will qualify an applicant for a home loan.

The first ratio looks at the ratio of the monthly payment for the loan you seek to your gross monthly income. Generally, lenders do not like to see a ratio for this of greater than 28%. Basically, they don't want you to buy a bigger house than you can afford.

The second ratio, the so-called "back end" ratio, is a ratio of your monthly recurring debt payments against your monthly gross income. The recurring debt payment total includes the proposed housing payment as well as your credit cards, car, student loans and payments on other debts. For most lenders, this ratio cannot exceed 43%. This is why amount of debt you are carrying can be such a deal-killer when applying for a loan.

For a lender, who cares about a bankruptcy in the past, it's the applicants current debt load, as well as income that matters.

If you have financial problems and are looking for guidance, contact us for a consultation. We'll ready to help.

June 17, 2014

It's Still Not Easy, But IRS May Be Moving Toward Granting More Back Tax Relief

There may be some good news for taxpayers with problems since IRS loosened up the rules for relief in 2012, according to recently-released reports by the agency.

The IRS changes for granting tax relief recognize the downturn in the economy.

From 2012 to 2013 the number of so-called "offers in compromise" (proposed agreements by taxpayers to IRS to discount back taxes) increased from 64,000 to 74,000. And, more importantly, the number of offers accepted jumped from 24,000 to 31,000 -- a 29% increase.

Likewise, the IRS seems to be moderating its forced collection efforts. IRS levies on bank accounts and paychecks dropped from 2,961,162 to 1,855,095 -- a 37% decrease. And the number of seizures dropped from 733,000 to 547,000, which amounts to 25% fewer seizures of property.

Says Morgan King, a California attorney and tax relief expert: "Clearly, the new policies are making it feasible for more honest but delinquent taxpayers to wipe the slate clean, become compliant with the tax laws, and get a fresh start."

"Most delinquent taxpayers," says King, "do not deliberately fail to pay their taxes when due. In most cases there is a small business failure, a serious illness, drugs, divorce, and similar causes. Once they get behind, they tend to go into avoidance until penalties and interest skyrocket the debt. At that point, they need a lawyer."

Still, says Kings, taxpayers need to beware of the tax relief scammers who advertise heavily, but deliver little: King notes that the percentage of accepted offers would be higher if only professionally drafted, competent offers are counted. "The acceptable rate is lower than it should be because so many ʻoffer mills,ʼ like the ones advertising on T.V., are slap-dashed together and sent to the IRS so poorly prepared that they are basically dead-on-arrival."

The new IRS changes generally focused on the financial analysis used to determine which taxpayers qualify for an OIC ("offers in compromise"). The changes enable some taxpayers to resolve their tax problems in as little as two years compared to four or five years in the past.

The IRS looks at the taxpayer's income and assets to make a determination of the taxpayer's "reasonable collection potential." OICs are subject to acceptance on legal requirements.

When the IRS calculates a taxpayer's "reasonable collection potential," it will now look at only one year of future income for offers paid in five or fewer months, down from four years, and two years of future income for offers paid in six to 24 months, down from five years. All offers must be fully paid within 24 months of the date the offer is accepted.

For more details, contact our office. We specialize in resolving tax and debt matters.

February 12, 2014

Beware: Tax Preparer Mistakes Costs Consumers Big-Time

It happens almost every week. Somebody comes into our office with a serious tax problem -- caused by a shoddy tax preparer, either through incompetence, negligence or sometimes downright fraud.

It boggles my mind that there is no regulation of tax preparers. I thought I was the only one who had noticed this problem. But no.

The National Consumer Law Center, a consumer watch-dog group, has recently issued a very good report on this. Following is from the press release announcing the report:

(BOSTON) One of the most surprising aspects about paying taxes in the United States isn't about marginal rates, deductions, or loopholes - it's the lack of regulation for most tax preparers.

Each year, tens of millions of consumers rely upon paid tax preparers to help them file accurate and compliant tax returns, yet the majority of these preparers are not subject to any minimum educational, training,competency, or other standards.

A new report from the National Consumer Law Center (NCLC) documents how a lack of regulation has allowed incompetence and abuses by tax preparers to flourish.

"All 50 states regulate hairdressers, but only three regulate tax preparers," stated Chi Chi Wu, staff attorney at the National Consumer Law Center (NCLC) and author of the report. "Yet an inaccurate tax return can cause a lot more harm than a bad haircut."

The report, "Riddled Returns: How Errors and Fraud by Paid Tax Preparers Put Consumers at Risk and What States Can Do" analyzes years of mystery shopper testing by government agencies, consumer groups, and advocacy organizations, all of which found disturbingly high levels of incompetency and outright fraud, such as:

• Intentional omission of income;

• Falsifying information to make the taxpayer eligible for various credits and deductions, such as charitable deductions, job-related or business expenses, and the Earned Income Tax Credit (EITC); and

• Inability to accurately handle education-related items, such as grants and tuition credits;

This incompetence and fraud could expose consumers to the risk of audit by the Internal Revenue Service, or even criminal sanctions.

Also documented is the severe lack of transparency in tax preparation fees. Taxpayers, especially lower income recipients of the EITC, sometimes end up paying $300, $500 or more in fees. Yet these and other taxpayers often cannot get information beforehand on how much tax preparation will cost them because many tax preparers claim they cannot give a quote or give inaccurate lowball estimates.

"Tax preparation is one of the few businesses in this country where consumers can't get an accurate price quote before buying the service," stated David Rothstein, a contributor to the report and director of Resource Development & Public Affairs at NHS of Greater Cleveland. "The lack of transparency and disclosure is stunning. How can there be a competitive market if consumers can't comparison shop due to lack of price information?"

Government enforcement actions also provide evidence of widespread abuses by paid tax preparers. The latest example is a decision issued just this month by a federal judge shutting down the nation's fourth largest tax preparation chain, Instant Tax Service, and permanently banning its owner from the business of tax preparation due to "an astonishing array of repeated fraudulent and deceptive conduct."

The report also makes the case that the problem is not limited to a few instances, but is endemic and widespread. "Law enforcement action alone is not enough to address the abuses," stated Wu. "Going after a few bad actors would ignore how lack of regulation permits fraud to flourish."

The NCLC report calls on states to regulate tax preparers to address preparer abuse and incompetency. The IRS attempted to address the problem in 2011 with regulations requiring tax preparers to register with the IRS and pass a competency exam. Yet, a federal court struck down these common-sense requirements as exceeding the IRS's statutory authority.


To better protect consumers, state legislatures should require paid tax preparers to:

• Obtain a registration unless they fit into one of exceptions for the limited number of tax preparers already regulated, such as certified public accountants, enrolled agents, and lawyers.

• Pass a basic competency exam.

• Have 60 hours of initial education and 15 hours per year of continuing education.

• Provide a standardized disclosure of their fees.

Along with the report, NCLC is releasing a Model Individual Tax Preparer Act with specific language that states can use to implement these recommendations. It is based on the existing state laws of the three states that do regulate tax preparers (Maryland, Oregon and California), as well as the IRS regulations.

Go to NCLC's website for a free copy of the report and additional information.

And if you're facing a tax problem, give our law firm a call. We'll be happy to help.

January 25, 2014

Getting Sued? Here's One Very Easy Way to Defend.

A layperson is often at a disadvantage when defending against a debt collection suit filed by an attorney. The debtor as a defendant does not know the "rules of the game" and sometimes takes the advice or direction of court staff (who by the way should not be giving legal advice but often do.)

Talking to clients who have appeared to defend in small claim collection suits in this area (Northern Virginia, suburban Maryland and DC), I am surprised that many will meekly follow court staff instructions to come back to court on another date -- when the collector's attorney fails to show up or is late! This failing is a perfect opportunity to have the case thrown out!

You have a right to ask the court to proceed on the case. Tell the clerk that you are present and ready for the case to be called. When the case is called, proceed to the podium and ask the court to have the case "dismissed with prejudice." That very important qualifier -- "with prejudice" -- means that you are asking the court to dismiss forever.

The plaintiff can ask the court to re-instate the case later, but, for most judges, he will have to have a very good excuse, for example unavoidable illness that came on suddenly, and he will need to ask for that reinstatement very soon after the dismissal, in most cases, within 30 days.

Remember: It's the plaintiff's case. He brought it. Not you. You're present and ready to go forward. If he's not there, the law is very willing to treat him harshly.

It's a simple technique, and a very valuable one, to get rid of a lawsuit.

If you need more advice, call our law firm. We're ready to help.

July 3, 2013

How Do You Know If You Could Be Sued by Your Mortgage Lender on a "Deficiency" After Foreclosure (or Short Sale)

A blog post here last month discussed the growing wave of lawsuits by lenders for the balance of mortgage loans left over from foreclosures (and in some cases short sales), known legally as lawsuits for the recovery of "deficiencies."

As discussed, in most foreclosures the lender bids only a part of his loan to win the collateral (the house) at the auction. In most jurisdictions, including Virginia, Maryland and the District of Columbia, the balance will still be owing and the lender has a right to sue the signer of the mortgage for that balance, and many are beginning to do just that.

So you had a foreclosure on your house a few years ago. How do you know if there is still a balance owing and whether you may be facing a lawsuit? The bad news is, unless the value of the house was more than the loan, you are probably owing something, since lenders will only bid a part of the loan, especially if the house is devalued, and that is the case for houses bought during the peak of the market, around 2007, before the crash.

One way to check is to look at your credit report. See if the lender (or its successor) is on the report and whether it is reporting a balance. (Note that this is not foolproof. We have seen instances where no debt was reported, but there was a balance owing.) You can get a free credit report once a year at www.AnnualCreditReport.com.

You can also get clues from the way the lender reported the foreclosure to IRS in the year following the foreclosure. If you got a Form 1099-A, box #4 labeled "fair market value of the property" is generally the amount the lender bid to win the auction. If that amount is less than the amount in box #2 "balance of principal outstanding," you probably have a deficiency.

If you got a Form 1099-C, and here is possible good news, the lender cancelled the debt, for tax reporting purposes. And some courts have held that reporting by the lender to IRS as proof the lender forgave the debt.

If you're facing this problem, or worry that you may be facing it, call us and we'll discuss your options.

June 21, 2013

Lost Your House in Foreclosure? Watch Out, the Lawsuit May Be Coming!

It's just another kick in the teeth. After losing homes in foreclosure a few years ago, borrowers may be getting another big surprise soon as mortgage lenders are now gearing up to file lawsuits against homeowners for the balance of the mortgage.

A Washington Post article this past weekend highlighted the rise in so-called mortgage "deficiency" court actions.

Many homeowners who were foreclosed upon don't know it, but most still owe money to the mortgage lender.

A foreclosure on a home works like this:

  1. The mortgage lender declares a "default" (breach of the contract) after payments are missed and "accelerate the mortgage" so that the WHOLE mortgage now becomes due and payable. (This is why a mortgage payment is often returned to the homeowner after several missed payments - the whole loan is due. One payment will not pay it off. The lender sends it back to avoid a legal defense from the homeowner that by accepting the payment the lender was reinstituting the loan.)

  2. The foreclosure auction is advertised in the newspaper for a specific date and time. In "non-judicial foreclosure" states -- which is the case for DC, Maryland and Virginia -- there is no actual court involvement in the process. (In Maryland, a foreclosure case is "docketed" in the county court, but there is no actual suit where the lender has to prove his right to foreclose.)

  3. At the auction, investors can, and sometimes bid, but usually it's the mortgage lender itself that bids a part - but only a part -- of its loan. For example, on a house with a $400,000 loan outstanding, and worth only $300,000, the lender may bid only $250,000 of its loan to win the auction. The balance of the loan - $150,000 in this example - is what is known in legal terminology as the "deficiency." The lender can re-sell the house at a profit, but that is solely the lender's to keep.

Most of the states in the US, including MD, VA and DC permit the mortgage lender to sue the borrower to get a judgment from a court for that deficiency.

And once the lender has a judgment, it can proceed to forcibly enforce that judgment through a variety of means it chooses including seizing the borrower's bank accounts, placing a lien on the borrower's property and/or requiring an employer to deduct from the borrower's paycheck and send it to the judgment creditor (known as garnishment). In this area, the judgment creditor is permitted to take up to 25% of the debtor's take-home pay.

It's a worrisome state of affairs, for borrowers who thought they were out of the woods after the foreclosure and after years of no communication from the bank.

During the past few years second mortgage lenders had been pretty aggressive and could almost be counted on to pursue borrowers after a foreclosure (since in most foreclosures it's conducted by the first mortgage holder and leaves the second mortgage holder with nothing).

But, until recently, the first mortgage holders had NOT been pursuing borrowers. Most of us lawyers who specialize in debt and foreclosure issues assumed they would NEVER sue for deficiencies. It may not turn out that way. In Maryland, according to the article, in 2006 there were deficiency lawsuits involving 19 homes that resulted in a total of $432,115 in judgments. Last year, in 2012, there were similar lawsuit involving 120 properties demanding $13.6 million.

So, how do you know if you owe? And what steps can you take to protect yourself? We'll discuss that in the next blog post here.

But if you're in a hurry, call our law office for an appointment. We specialize in legal representation of individuals and small business with financial distress issues in DC, Virginia and Maryland.

April 12, 2013

Warning: A "Charge Off" On Your Credit Report Does NOT Mean You Don't Owe It

It happened again this week. The client comes into the consultation smiling broadly. He just needs help with a loan modification, he argues. He doesn't have any other debts. "Look," he says, pointing at his credit report, "it's been charged off!"

Sorry, that's not what it means. A "charge off" is an accounting entry by the lender declaring that the debt is uncollectible, a determination that helps the lender deduct it as a loss against his taxes.

The "charged-off" account is still a live debt of the borrower until such time as the statute of limitations runs out and that can vary from three to seven years and depends also on the type of debt. In this area -- Maryland, Virginia and the District of Columbia -- you will need to check the law in the jurisdiction in which you reside.

So, remember, you are still "on the hook." In fact, many of these debts are sold to debt investors at a large discount, such as Portfolio Recovery Services, Midland Funding, Portfolio Recovery, or LVNV Funding who make it a business to recover on this stuff via lawsuits and other means.

Also, it may be more harmful on your credit report as a "charge off" than actually eliminating all legal liability and having it read "discharged in bankruptcy."

One of the factors a mortgage lender takes into account when deciding on whether to grant a borrower a loan modification is that borrower's "back end" ratio. Too much other, non-home-related debt, such as charged-off, but still live debt, can nix the modication.

So don't rest easy just yet. Consult an attorney knowledgeable about debt issues, and see what the options are to deal with this.

April 8, 2013

Fixing Businesses Through Chapter 11 Bankruptcy Boosts the Economy, Says New Study

Despite the image and stigma associated with bankruptcy, financial reorganization of failing businesses (and nonprofit organizations) through Chapter 11 bankruptcy is actually helping the economy by giving companies a chance to find new financing, reject onerous contracts, renegotiate leases, and expedite the sale of assets.

Harvard Business School recently published an article reviewing comments made by Stuart C. Gilson, a Harvard business professor and advocate of Chapter 11 bankruptcies in his new book, "Creating Value Through Corporate Restructuring: Case Studies in Bankruptcies, Buyouts, and Breakups." Gilson believes that the first step is getting the public to realize that Chapter 11 is not about "dying companies," but about "reviving" them.

During the financial crisis of 2008, debt restructuring and Chapter 11 played a heroic role in reviving the US economy. Not only does it speed up a company's reorganization process, but it focuses in on what is necessary to "rehabilitate" the company rather than focusing solely on paying back creditors and stakeholders. (US bankruptcy laws differ from other countries in that they strive to restore the companies facing bankruptcy in order to make them viable and competitive rather than simply liquidating them.)

Restoring Chapter 11's Image

Chapter 11 was often seen as slow and expensive, however, it is emerging and evolving in a way that allows "managers and financiers to work with companies facing bankruptcies and deal with them effectively and appropriately."

For example, one of the ways Chapter 11 is evolving is through the use of the "prepackaged bankruptcy." A "prepackaged bankruptcy" combines the traditional notions of a Chapter 11 bankruptcy while incorporating "out-of-court" restructuring. Companies are able to negotiate restructuring plans with creditors to give them assurance that once they file the actual bankruptcy, the creditors all will be on the same page.

Allowing for prepackaged bankruptcies gives companies the flexibility and assurance from creditors that they will "vote for the restructure plan once the firm officially enters into chapter 11." By choosing this path, it allows companies a chance to "avoid the steep costs associated with spending [time] in bankruptcy court."

Another emerging frequent use of Chapter 11 is for a bankrupt company to sell its assets in a competitive auction that is supervised by the courts under Section 363 of the Bankruptcy Code. Companies who utilize this option can expedite the sell-off of their assets free and clear.

In addition to expedited asset sell off, Chapter 11 gives companies other options for generating income. During Chapter 11, the company pays no interest on any "pre-bankruptcy debts," they can "reject unprofitable leases" and "new lenders are given priority in the capital structure" using what is known as "debtor in possession financing" by new lenders gain super priority and stand ahead of pre-existing creditors. This priority encourages banks and other lenders to lend to companies in Chapter 11 rather than discourage it.

Should My Company Seek Advice From a Bankruptcy Attorney?

Chapter 11 is changing and becoming an integral part in saving US companies and the economy. If you feel your company or organization could benefit from filing for Chapter 11 it is advisable to speak with an attorney, and in particular an attorney familiar with bankruptcy practice in Maryland, Virginia and Washington, DC. An attorney will evaluate your company's situation and determine whether you would benefit from reorganizing. Additionally, an attorney will aid you throughout the process as well as assist you through the restructuring process to meet your goals.

March 16, 2013

Bankruptcy Court -- An Alternative Way to Dispute Taxes

Bankruptcy is designed as a way for an insolvent debtor, one who cannot pay his or her creditors, to get a fresh start. Depending on the type of bankruptcy involved--Chapter 7, Chapter 11, or Chapter 13 for example--among the main functions of a bankruptcy court are to liquidate assets, discharge certain debts, or confirm a payment plan for non-dischargeable debts.

It can also serve as a way to dispute taxes, as illustrated in a recent Virginia bankruptcy court decision . In Harris v. Commonwealth, the debtor and his wife filed for Chapter 7 bankruptcy.

In Chapter 7, also known as a liquidation bankruptcy, a trustee takes control of the "nonexempt" assets of the debtor's and reduces them to cash from which creditors will be paid. (Note that before the case is filed you and your attorney will know if there are any nonexempt assets, and can plan accordingly.) While certain unsecured debts are discharged under Chapter 7, certain types of debt, like child support and income taxes less than three years old, are not dischargeable.

Like almost all Chapter 7 cases, this case was determined to be a "no-asset case," where there were no assets available for liquidation or to pay creditors. All of the dischargeable debts that the debtor had were discharged and the only reason for the Chapter 7 action was to contest an income tax assessment. The assessment was for nearly $613,000, and was disputed by the debtor.

Tax courts have broad discretion to determine tax liabilities assessed before or after the debtor filed for bankruptcy. However, in "no asset" cases, where there are no assets to distribute, courts have usually abstained from deciding disputed tax matters. In these cases, the only avenue for debtors who have been assessed an incorrect amount of taxes is to pay the full amount of the taxes and subsequently sue for a refund in state court.

The Commonwealth argued that the bankruptcy courts should abstain from deciding the amount of tax a debtor owes in no asset cases since the decision will not affect the debtor-creditor relationship. However, the debtor argued that he would be severely prejudiced since he would be forced to pay well over half a million dollars BEFORE he could litigate the incorrect assessment in state court. Due to the enormity of the debt, the debtor argued that he would be unable to litigate and therefore would be denied the fresh start guaranteed by Chapter 7.

The debtor further argued that while he would be extremely prejudiced by having to pay the tax first and litigate in state court later, the Commonwealth would suffer no prejudice either way because, in the end, the Commonwealth will only get the correct amount of tax due. The debtor argued that all that his case required was a substantiation of the amount of gross revenue he received and then calculate the correct tax due, which would not be a complex matter and not take up too much of the bankruptcy court's time. This outcome would be the same in either bankruptcy or state court, but the procedure in state court would severely prejudice the debtor. In the end, the court agreed with the debtor and allowed the case to move forward in bankruptcy court.

What is interesting about this case is that it illustrates the possibility for other debtors in similar situations to litigate their tax matters in bankruptcy court. This can prove very beneficial to many people who are already considering bankruptcy and also want to clear up a tax matter but have not been able to get the government's attention to resolve it. It also may eliminate the requirement of having to pay a mistaken tax assessment and sue for a refund later. Since most people are filing for bankruptcy precisely because they cannot pay their bills, being able to litigate tax matters before actually having to pay an incorrect amount of tax may make a huge difference in getting the "fresh start" promised by bankruptcy.