1 hour 36 min ago

Stop Harassing Debt CollectorsMany of the Oregonians who come to us to file bankruptcy have been harassed by debt collectors for year. A significant portion of them are unaware that not only is there a mechanism for stopping many of those debt collectors in their tracks, but there is also a chance for a significant recovery for their troubles. 
The Fair Debt Collections Practices Act provides expansive protections to Oregon and Washington consumers with respect to illegal collections actions. I am happy to say that since it was enacted, I have seen a decline in violations among local Oregon and Washington collectors. But then there is the rest of the country.
Unfortunately it is next to impossible to pursue some of the worst violations under the Act because the collector may either not be in the country or the violation might be committed by a couple criminals sitting in a boiler room in New Jersey. The bad news is getting a judgment against people like that it pretty much uncollectible. The good news is these collectors are all talk and don’t have the wherewithal to actually pursue a collection in court.
Violations still take place though and it is important to understand what passes muster under the Act so that collectors can be stopped, violations can be pursued and money damages obtained Under the FDCPA, a debt collector is someone who regularly collects debts owed to others. This includes lawyers who regularly collect debts, collection agencies, lawyers who collect debts and companies that purchase past due debts and then try to collect them. Here are some questions and answers about the Act.
What Debt Collectors Cannot DoCan a debt collector contact me at will?
No. A debt collector may not contact you at inconvenient times or places. Unless you agree to the contact before eight in the morning or after one at night would violate the Act. Moreover, a collector may not contact you at work once they’re informed that you’re not allowed to take calls there. 
Debt collectors can contact you to collect a debt, as long as they heed the rules and disclose that they are debt collectors. It violates the law for a debt collector to pretend to be someone else – like an attorney or government agency – or to harass, threaten or deceive you. 
What sorts of debts are covered?
The Act covers personal debts like your credit card, your car loan, a medical bill or your mortgage. The FDCPA doesn’t cover business debts.
How can I stop a debt collector from contacting me?
If you decide after communicating with a debt collector that you don’t want the collector to contact you again, inform the collector in writing to stop contacting you.  Write a letter and make a copy of it. Send the original by certified mail, and pay for a “return receipt” so you’ll be able to document what the collector received. 
Once the collector receives your letter, they may not contact you again, with two exceptions: First, a collector can contact you to acknowledge that there will be no further contact. Second, the collector may contact you to inform you that they or the creditor intend to take a specific action, like filing complaint. Sending such a letter to a debt collector you owe money to does not get rid of the debt, but it should stop the contact. The creditor or the debt collector still can sue you to collect the debt.
Can a debt collector contact anyone else about my debt?
If a lawyer is representing you regarding the debt, the debt collector must contact the lawyer, rather than you. If you don’t have a lawyer, a collector may contact other people – but only to find out your contact information and where you work. 
Collectors usually are barred from contacting third parties more than once. Other than to obtain this location information about you, a debt collector generally is not allowed to discuss your debt with anyone other than you, your spouse or your lawyer.
What does the debt collector have to tell me about the debt?
Every collector must send you a written “validation notice” telling you how much money you owe within five days after they first contact you. This notice must include the name of your creditor, and how to proceed if you don’t think the debt is legitimate.
Can a debt collector keep contacting me if I don’t think I owe any money?
If you send the debt collector a letter stating that you don’t owe any or all of the money, or asking for verification of the debt, the collector must stop  contacting you. You have to send that letter within 30 days after you receive the validation notice. But a collector can start contacting you again if it sends you written verification of the debt, like a copy of a bill for the amount you owe.
What actions are off limits for debt collectors?
Harassment. Debt collectors may not harass, oppress, or abuse you or any third parties they contact. For example, they may not:

  • repeatedly use the phone to annoy you. 
  • use physical threats;

● use obscenities 

  • Debt collectors may not lie when they are trying to collect a debt. For example, they may not falsely claim they are with the government or that they are lawyers

● falsely claim that you have committed a crime;
● falsely represent that they work for a credit reporting company;
● misrepresent the amount you owe;
● falsely describe paperwork they send you as legal forms
● give false credit information about you to anyone, including a credit reporting company;
● send you a false official document from a court or government agency
● use a false company name.
● try to collect any charge of any kind on top of the amount you unless the agreement that created your debt or Oregon law allows the charge;
● deposit a post-dated check early;
● take or threaten to take your property unless it can be done legally; or
● contact you by postcard.
Do I have any recourse if I think a debt collector has violated the FDCPA?
If a collector violates your rights under the FDCPA, you should see an attorney to determine your legal rights. We have sued numerous collectors in both Oregon and Washington and obtained recoveries for our clients. If your rights have been violated under the FDCPA  and there is a potential recovery, this has repercussions if you are contemplating bankruptcy. 
A potential FDCPA recovery should be listed and protected as an asset in your bankruptcy filing to make sure that when you do sue the collector, you will be able to keep all the damages.
You have the right to sue a collector in a state or federal court within one year from the date the Act was violated. If you win, the judge can require the collector to pay you for any damages you can prove you suffered because of the illegal collection practices, like lost wages and medical bills. 
The judge can require the debt collector to pay you up to $1,000, even if you can’t prove that you suffered actual damages. You also can be reimbursed for your attorney’s fees and court costs. Even if a debt collector violates the FDCPA in trying to collect a debt, the debt does not go away if you owe it. What should I do if a debt collector sues me? If a debt collector files a lawsuit against you to collect a debt, respond to the lawsuit, either personally or through your lawyer, by the date specified in the court papers to preserve your rights.
If you believe that your rights have been violated under the FDCPA, please book an appointment at the Salem, Portland, Sandy or Vancouver office so that we can stop the collector and protect your right to recovery. Again, we have successfully sued multiple collectors across both Oregon and Washington and in so doing punished collectors and obtained thousands of dollars for our clients. 
The post FDCPA, Bankruptcy and the Oregon Consumer appeared first on Portland Bankruptcy Attorney | Northwest Debt Relief.

1 day 22 hours ago

Everything You Need to Know About Divorce and Bankruptcy   You have probably heard the commonly-cited statistic that about half of all marriages end in divorce. A sizable number of those whom have experienced divorce will also find themselves in need of bankruptcy protection. Family law and bankruptcy law intertwine in several ways. This post […]
The post Everything You Need to Know About Divorce and Bankruptcy appeared first on Tucson Bankruptcy Attorney.

2 days 4 hours ago

Here at Shenwick & Associates, we’re paying close attention to the travails of “underwater” holders of New York City Taxi and Limousine Commission medallions and practical solutions to their plight.  In a recent blog post, we reviewed a New York City Council Committee on Transportation hearing last month on the issue. 
Earlier this month, Committee on Transportation Chair Ydanis Rodriguez introduced a proposed local law, Int. 1740-2017,  which would create a new nontransferable taxicab license to allow current taxicab owners to operate one additional vehicle under a single existing medallion license. Presumably, under this proposal, the medallion owners would have an additional stream of revenues, and thus, theoretically, make taxi medallions a more attractive investment.
In an amNYstory about the proposal, reactions were mixed.  Bhairavi Desai, the executive director of the New York Taxi Worker’s Alliance, which represents 19,000 drivers, called the bill a “starting point” but wouldn’t support it in its current form. “My concern would be what’s going to happen to the drivers on the road because this wouldn’t save the drivers who are in a race to the bottom,” said Desai. “In order to be hailed you have to been seen and this could help address that issue and help the industry, but to really protect drivers there should be a commission-like system with a guaranteed income and a cap on black cars.”
I’m not sure that this proposal would assist medallion owners who own overleveraged medallions for at least two reasons: 1. Based on the laws of supply and demand, if the number of medallion operators increase, the value of each existing medallion will decrease; and 2. My clients indicate that there are already too many taxis, Uber, Via and Lyft cars on the road and this proposal would increase or double the number of medallions and increase competition for medallion owners. My clients indicate that they are presently working 20-30% longer hours each week for 20% lower earnings. For more information on taxi medallions, debtor and creditor relations and bankruptcy, please contact Jim Shenwick.

2 days 1 hour ago

October 19, 2017 – Article posted in
Bank of America tries to bully a bankruptcy judge,  ignoring the consequences of an illegal acts, but the judge is not standing for it.
Bank of America seems to think they can bully a bankruptcy judge,  like they did a California couple in a nightmare foreclosure, but the judge is not standing for it.  For several months Bank of America attorneys have attempted to convince U.S. Bankruptcy Judge Christopher Klein to erase a 107-page ruling imposed a $45 million penalty (this is now their third time before the judge).  Judge Klein is now getting upset with the bank and refuses to approve of a confidential settlement that would eliminate the penalty.  The judge said it looked to him like the bank was “holding the Sundquists hostage” by making the settlement contingent on the ruling being dismissed.

In his March opinion, Klein faulted Bank of America for “institutional obstinance and dishonesty” and said its actions smacked of “cynical disregard for the law.”
“In the calculus of reprehensibility, Bank of America’s intentional conduct adds up to reckless and callous disregard for the rights of others,” Klein wrote.
The judge also said the the size of the punitive damages award against Bank of America was meant to “not be laughed off in the boardroom.”

Bank of America dishonestBank of America dishonest
So, why is this going on?
History: The Sundquists’ sole reason for defaulting, which they did with considerable reluctance (their credit score had been above 800), was acquiescence in Bank of America’s demand that they default as a precondition for loan modification discussions with Bank of America.  The bank failed to honor their promises which started the family on downward path the took over years to finally conclude.
Present: Bank of America offered the Sundquists undisclosed (secret) amount if they will have the judge withdraw his order.  Hence, why the judge feels Bank of America is holding the Sundquists “hostage”.  Evidently the amount will be “substantially” more than they would receive from the current award.  Obviously, the Sundquists just want to put this nightmare behind them.

If the penalty stays as originally ordered several groups who represent injured parties, such as the Sunquists, would receive $40 million of the $45 million award.  Their attorneys are pleading with the judge to not vacate the order so it can be used as precedent for other cases.

Read more..
‘Hero’ Judge Urged by Couple to Nix $45 Million BofA Penalty
The case is Sundquist v. Bank of America Corp., 14-02278, U.S. Bankruptcy Court, Eastern District of California (Sacramento).

Bank of America dishonestWhat is the real story?
This is just the tip of the iceberg.  Whenever institutions fail to properly supervise staff there is an increasing chance of abuse of power (Wells Fargo continues to prove this again and again), especially if the employees financial benefit by their illegal acts.  There are thousands, if not hundreds of thousands, of families who were abused by Bank of America and Wells Fargo (plus more yet to be uncovered).  They lost their homes, their savings and their family security because a bank felt they could ignore the law.
I only hope we see many more rulings like Judge Klein’s.  The problem is that many judges do not have the personal fortitude to follow Judge Klein’s path.

Share this entry

About the Author:
Diane L. DrainDiane L. Drain is a well known and respected Arizona bankruptcy attorney. She is an expert in both consumer bankruptcy and Arizona foreclosure. Since 1985 she has been a dedicated advocate for her clients and spokesperson for Arizona citizens. Diane is a retired professor of law teaching bankruptcy for more than 20 years. As a teacher she believes in offering everyone, not just her clients, advice about the Arizona bankruptcy laws. She is also a mentor to hundreds of Arizona attorneys.
I would be flattered if you connected with me on GOOGLE+
*Important Note from Diane: Nothing on this website should be construed as establishing a lawyer-client relationship between you, me, the author of any page or the website owner (me) who happens to be a lawyer.  Everything on this web site is available for educational purposes only, is not intended to provide legal advice nor create an attorney client relationship between you, me, or the author of any article.  You may pick up some information about bankruptcy, foreclosure or the practice of law written by myself or others.  Any information in this web site should not be used as a substitute for competent legal advice from an attorney familiar with your personal circumstances and licensed to practice law in your state.*

The post Bank of America Holds Family Hostage According to Judge appeared first on Diane L. Drain - Phoenix Bankruptcy & Foreclosure Attorney.

2 days 4 hours ago

Bankruptcy And TaxesSome taxes don’t qualify for bankruptcy discharge. Most often this is because they were due less than three years ago or were filed less than two years ago. Many of our potential bankruptcy clients worry about a big tax bill after bankruptcy, particularly clients with large balances owing to the Oregon Department of Revenue. 
Certainly you can wait until the taxes become eligible for discharge and yet this is rarely a great option. Most clients come to see us after the returns in question have only recently been filed or are in the process of getting filed. 
Waiting two to three years rarely makes sense, particularly when the tax debts are only part of the problem. If that is something that you are contemplating, it would probably be a great idea to set a phone appointment with me or see one of our attorneys at any one of our offices in Portland, Salem, Sandy or Vancouver. 
One option that often makes a ton of sense is a Chapter 13 Bankruptcy. A Chapter 13 Bankruptcy filing to deal with non-dischargeable tax debt can often be hugely appealing where your income minus your expenses dictates that you pay a certain amount back to your unsecured creditors. 
If you are going to have to pay back at least some money back to your unsecured creditors regardless of whether you file now or later, why not file now and route those payments to pay off your taxes rather than U.S. Bank. 
In other words, if you owe, say, $10,000 in non-dischargeable tax arrears, but your income minus your expenses is going to allow you to pay back that amount over five years in order to eliminate all your debts regardless of when you file, what’s the point of waiting?
Even if you would not otherwise have to pay anything back to your creditors in bankruptcy, it can still make sense to file bankruptcy sooner rather than later. Are you really going to wait for years for a fresh start and get harassed by your creditors while you wait. The immediate alternatives are attractive. 
If you file Chapter 13 now, you eliminate all your other unsecured debts and you have only the taxes to worry about.  You can put those non-dischargeable taxes right into a Chapter 13 Bankruptcy. The best part is that you will be able to pay off all your secured loans on your personal property first and make the IRS and ODR wait until you are done. When you do pay the taxes, it is at zero percent interest and no penalty. 
This means that your car loan gets paid off first and usually at a reduced interest rate. The tax collectors are forced to wait until you are done, get paid off slowly and don’t get a dime in interest and penalties. Meanwhile your unsecured creditors get nothing. Pretty nice result.
Please set an appointment at any one of our Oregon or Washington offices if you would like to investigate a strategy for using a bankruptcy filing for dealing with tax debts.If any of these strategies for dealing with tax debt. We can see you in Vancouver, Portland, Sandy and Salem. If time is tight you can always book a video or phone appointment with me to go through your options. Sometimes the automatic stay of bankruptcy is the best barrier that you can put between you and the taxman.
The post What to Do with Taxes that Bankruptcy won’t Discharge without Repayment? appeared first on Portland Bankruptcy Attorney | Northwest Debt Relief.

3 days 10 hours ago

Bankruptcy courts across the country have embraced the electronic filing of court pleadings since 2001. This system, known as Electronic Case Files or “ECF”, allows attorneys to sign and file documents with an electronic signature instead of using “wet ink” signatures on paper. The system is a great improvement over the older paper file system it replaced. Back in the old days we used to make five photocopies of a bankruptcy petition (one for our files, one for the Trustee, one for the US Trustee, one for the national archives, and one for the court) and then rush to the federal courthouse to file the case before a garnishment or foreclosure took place. ECF made it possible to file cases and motions 24 hours a day and almost every day of the year. It also made it possible for anyone to view court records electronically.
But even though this new electronic filing system allowed attorneys to sign documents electronically, debtors were still required to sign paper petitions with a wet ink signature. Attorneys are required to maintain this document until the case is over and typically for a few years thereafter. Upon request of the court or an interested party, the debtor’s attorney must produce the original document. Such requests are exceedingly rare (I’ve never had to produce an originally signed document since the ECF system was established in Nebraska), but in cases where a debtor has hidden assets and is subject to criminal prosecution for bankruptcy fraud, it is common for federal prosecutors to request the originally singed pleadings.
Since the ECF system was introduced in 2001 a new technology has grown in the area of Digital Signatures. A digital signature is a an electronic signature that has been secured by a process know as cryptography. Once a document is signed digitally, the contents of the document are encrypted and secured. A digital document is typically stamped with an alpha-numeric code on the top margin of every page of the document.  If the document is changed in any way the digital signature panel warns viewers that the signatures are no longer valid. Documents that have not been altered typically flash a green check-mark symbol, but altered documents commonly display a red X mark. The leading company in the digital signature industry is DocuSign.
Department of Justice prosecutors worry that individuals who commit bankruptcy fraud by failing to disclose assets, income or property transfers may attempt to avoid liability by denying that they signed a bankruptcy petition digitally. What if a debtor denies clicking on a “Sign Here” button? What if a debtor’s roommate or child clicks on the digital document? How can prosecutors be sure a debtor signs a bankruptcy petition digitally?
And this is the problem. Because the DOJ is worried that digital signatures may compromise their prosecution efforts they are throwing down a roadblock before the bankruptcy rules committee. Without DOJ acquiesce to the use of this technology, courts are reluctant to adopt this convenient signature method.
The ironic aspect of the DOJ opposition is that these same prosecutors seem to have no problem obtaining tax fraud convictions against taxpayers who file tax returns electronically. This is especially confusing since taxpayers do not enter a federal courthouse shortly after filing tax returns to testify under oath that they signed the tax return electronically, but bankruptcy debtors do just that in every case filed. How can the DOJ convict individuals for tax fraud without any sworn testimony about how a tax return was signed but not convict debtors of bankruptcy fraud when such testimony is present? Fears raised by the DOJ to digital signatures seem exaggerated and disingenuous.
What the DOJ should really be concerned about is the fact that bankruptcy attorneys commonly alter bankruptcy schedules after they have been signed. Why does this occur? Because attorneys who prepare bankruptcy cases are under constant pressure to file cases to stop paycheck garnishments or home foreclosures and their clients generally have not supplied them with all the necessary tax returns, paycheck stubs, bank statements, and creditor statements to completely prepare a case prior to the signing.

Bankruptcy clients frequently are slow to provide documents to their attorney until garnishments strike. And when those garnishments hit, debtors flock to their bankruptcy attorney to file cases in a panic. Of course, signing a case under such circumstances is frequently disorganized and messy.
Under pressure to stop creditor activity an alarming number of bankruptcy attorneys have clients sign incomplete petitions or just have clients sign blank signatures pages.  After clients leave the office the attorney then completes the petition and files it electronically with the court.
This process has been documented by the United States Trustee.  In the case of In re Harmon the US Trustee found that debtor attorneys made material alteration to signed bankruptcy petitions in 82% of the files it audited.  In a report prepared by the bankruptcy practices committee, bankruptcy trustees complained that debtors are frequently asked to sign petitions they have not reviewed.

Unfortunately, there is an attorney in my district [who] does not think his clients need to review the petition, schedules, financial affairs before filing and sign these documents with a wet signature.  I have reported his practice to the US Trustee with proof.

This is the real problem the DOJ should be worried about. It is well documented in multiple cases that attorneys frequently change the contents of signed bankruptcy petitions or that they do not allow their client to preview what they sign. If a person charged with bankruptcy fraud can establish the existence of unauthorized changes made after the petition is signed the prosecutor is going to have a problem. Identifying such alterations is not difficult. One such indicator of document tampering is the bank account balance reported. If a case is signed on the 5th day of the month but the case is not filed until the 20th day yet the bank account balance reported exactly matches what was on deposit on the 20th day, it is clear the petition was altered.  (Bankruptcy attorneys frequently call clients on the day the case is filed to update the bank account balance.)
If debtors can prove that the document they signed was altered the DOJ will have a problem prosecuting bankruptcy fraud. Paper documents are inherently unsecured and unreliable. The only thing a wet ink signature on paper proves is that a debtor singed a signature page.  It is not proof that the rest of the document was not materially altered.
If a debtor were allowed to bankruptcy petition digitally, the DOJ would have a much easier time of prosecuting a bankruptcy fraud case.

  1. Debtors have the opportunity to review documents before they are signed.
  2. Every page of a digitally signed document is stamped with an alpha-numeric code which makes it nearly impossible to make alterations to the document after it is signed.
  3. Debtors get an immediate copy of what they sign digitally.  They have proof of what they signed and that discourages the other party to change the contents of the signed document.
  4. Digitally signed documents are encrypted and secured.  The paper schedules of a bankruptcy petition are not secured by anything and are frequently altered.
  5. Debtors must attend a meeting with the bankruptcy trustee about one month after cases are filed.  At such meetings the debtor must testify that they signed the digital documents.
  6. Digitally signed documents provide an “audit trail” showing when the document was signed, how long a debtor reviewed the document, the IP address of the signers and other information that helps prosecutors prove that a document was signed.

The fear that debtors may deny signing a document digitally is understandable.  But if courts update their local rules to add sensible safeguards to the signing process these concerns can addressed.  Such safeguards may include:

  • Requiring debtor attorneys to file a copy of the digitally signed petition with the court so that court is not dependent on the debtor’s attorney for safeguarding the petition.
  • Requiring debtor attorneys to mail a hard copy of the digital document to the debtor with a cover letter to advise of the digital signing.
  • Sending a copy of the digital document to the appointed trustee so they may ask additional questions at the court hearing about how the document was signed.
  • Require debtors to sign an Authorization form, similar to to IRS Form 8879, with a wet ink signature on paper.

Digitally signed bankruptcy petitions are coming. It is time for the bankruptcy court system to craft new procedures to balance the needs of debtor attorneys to obtain updated signatures quickly with the need of the courts and DOJ to have confidence in the integrity of the bankruptcy documents.
Image courtesy of Flickr and Ged Carroll