Posts Tagged ‘Consumer Rights’

When You Discover that You Are a Creditor in a Bankruptcy Case…

Last week, I was in the clerk’s office and overheard two people ask the clerk which forms needed to be filed in a bankruptcy case.  But this person was not a debtor – they were a creditor.  Their landlord had filed bankruptcy.  The former tenant was looking for their security deposit back, and was going to sue the debtor in small claims.  I couldn’t help myself – and I butted in.

“You need relief from the automatic stay.”

“The stay applies even to me?” one asked.

“It applies to everyone.”

After that short exchange, I thought I would put together a short checklist of things to do when your landlord – or someone else you know who also happens to owe you money – files a petition seeking bankruptcy protection.

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The Elephant in the Room: Married Same-Sex Debtors

The decision to seek bankruptcy protection is never easy, and when two people are involved, it is not necessarily easier.  Married opposite-sex debtors have the option of seeking bankruptcy protection jointly in one case.  But as a growing handful of states recognize same-sex marriages or its legal equivalent (“unions”), and as the legitimacy and constitutionality of the Defense of Marriage Act (or DOMA) continues to be litigated in courts across the country, same-sex debtors seeking bankruptcy relief face even tougher decisions.

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NY AG Seeks to Vacate 100,000 Judgments

Way back in 2005, I wrote about a need to reform our state rules on returns of service.  You’ll find that article here.  In August of 2006, then Mass. Bar Association President Warren Fitzgerald wrote a column in the Boston Globe also calling for reform based on the failure of small claims defendants to get any meaningful notice of a suit being filed against them.  Today we’re learning that in New York, Attorney General Anthony Cuomo has filed suit to vacate over 100,000 judgments that were entered against consumers who were not properly served. (more…)

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The Sunday News

A fellow bankruptcy attorney shared this article that appeared in last month’s New York Times Magazine.  I see in it some of the same difficulties I see in clients.  It also makes me question how “half-empty” the glass really is.  Although in the interest of full disclosure, the writer has a book coming out.  In other news…

ONE FLAG! Six Flags Amusement Parks files for Chapter 11 protection.

Nashua NH Telegraph:  Welcome to the New Consumer Economy.

Boston Herald:  Consumer spending may never be the same as it was.

South Coast: Home values could take years to recover.  We also could be hitting bottom (I’m not being sarcastic, it says the market “could be a reading a valley”).  I could also be a ledge (ok, that was sarcastic).

Nantucket foreclosures.  I wonder if these homeowners claim their loan was predatory?  I also have to question whether it was.

A bad apple is removed from the barrel: Brockton lawyer settles fraud suit with the Massachusetts Attorney General’s office.

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Another Good Reason to Stay Close to Home

One of the best things about summer is the local produce you’re likely to find not just in the supermarket, but on road side stands.  While I admit I’m a bit biased, when I was a kid, there was no better place to get tomatoes and sweet corn than the small farms on Aquidneck Island.  That’s probably going to tick-off the good folks in Little Compton, but hey, I know what I know.  I am sure that I can find a place online that would ship them to me, but it’s not the same as pulling over to the side of the road, smelling the air, and reaching into your pocket for a few bills to get some good stuff.   Law firms advertise online, as do credit counselors and so-called debt settlement and consolidation firms…and there are hundreds if not thousands of companies and firms offering assistance to people struggling with debt.   Is it a good idea for Massachusetts consumers stay “local” when they are looking for resources to help them deal with their debt?  This very question came up today when I was talking with a prospective client.

For a variety of reasons, the family is in a lot of debt and exploring options.  There’s bankruptcy (and I can help them with that), and there’s credit counseling (which I can offer a recommendation).  There’s also debt consolidation and debt settlement, but ironically, there do not seem to be too many local companies that offer such services.  Perhaps it is because those services are usually little more than a scam.  Perhaps it’ because it’s been tried

The clients were considering the “Consumer Law Group, PA” located in Florida.  I like Florida – I have not been there in years – but it’s a pleasant place to be.  And while I like oranges, I don’t feel the need to go to Florida to get them.

Fortunately, the client did some research on this outfit on their own.  They learned that the “Consumer Law Group, PA” had only been around since November 2007.  They found websites where people had some very unfavorable things to say.   More than one person, actually.   They also learned that in less than two years period, they earned an exceptionally low BBB rating.  That was their wake up call.  It dawned on them: “why are we not dealing with a local business who can help us?”

While this is arguably yet another reason to stay clear from any outfit claiming to offer debt consolidation or debt settlement services (which again, are a scam), I think it is also important to consider going with someone local.  It doesn’t matter if it is an attorney, a credit counselor or a lender who may be trying to help you refinance…. why go with an out of state outfit state?  After all, we are talking about your money, your life, your family and your future.

For those reasons, it’s important to get good help from someone who knows what they are doing.  And frankly, if these issues are important enough for you and your family, then you should be able to look that professional square in the eye.  That’s hard to do when they are a few states away.

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Clean Up

No one likes cleaning up a mess that someone else made, especially lawyers.  I’ve coined the term “clean up” to describe a particular type of case – whether it be debtor or creditor.  In most cases however, it’s a debtor’s case that was handled by an attorney who is no longer returning phone calls, or has informed the debtor that they can no longer handle the case.  The debtor is extremely concerned, and is usually in a very difficult position.  And unfortunately, I’m seeing these types of cases with greater frequency.  

There are many reasons why a debtor’s case may not be progressing the way they expected.  But in many cases I am seeing, when a debtor is contacting me to either get a second opinion, or to get a new attorney it’s because something in the case is going dreadfully wrong.  It could be an improperly completed form, or a complete lack of understanding of how bankruptcy works.  It could also be a little of both.

 The economy is drying up legal work in other areas and this may be pushing attorneys who do not know bankruptcy law into the practice in an effort to their own ends meet.  However, attorneys who do this with an assumption that bankruptcy is “easy” or is just about filling forms will soon realize that this is not the case. 

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Predators in our Midst: A Warning for Homeowners Facing Foreclosure

I know that attorneys and other professionals may send written solicitations to homeowners who are facing the possibility of foreclosure. However, I have heard that there are unscrupulous individuals who may be posing as attorneys or are providing bankruptcy “assistance” when in fact, they are not qualified to do so.

If you are facing foreclosure and are contacted by ANYONE who claims to be an attorney, point your browser over the Board of Bar Overseers and look up that person up. There, you will find out whether they are licensed to practice law in Massachusetts, whether they are insured, and whether there is any history of discipline against them. If the person claims to be an attorney and they are not listed there, stay away from them.

These predators obtain a homeowner’s name and address by scouring the Land Court records and the auction notices in local papers. This information is available to anyone who goes to the court, or who perhaps subscribes to this information through a vendor (such as Banker & Tradesman). Through clients, I have learned that homeowners can be contacted by attorneys, real estate brokers and salespersons, mortgage brokers, as well as “investors” or others who may not have their best interests in mind.

Clients have been known to bring in bundles of mailings they have received. But the unscrupulous ones may not send out mailings. They may call, or show up at the door. They may claim that they go to same church, or once lived in the same neighborhood. They will appear to be friendly and helpful. They are anything but.

The bankruptcy cases that are getting filed are sloppily prepared. In many cases, those filings are without a credit counseling certificate, which means the case will end up being dismissed. In many cases, the scoundrel has taken the last chunk of money these folks have all under the guise of “helping them.”

If you’re facing foreclosure, or know someone that is, be smart and be safe. Deal only with a licensed professional.

To look up a real estate professional’s license, click here.
To look up a mortgage broker’s license, click here.

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When Mortgage Brokers Request Secrecy

Earlier this week I was talking with a client who let me know that their home was headed into foreclosure. I was a bit surprised to hear this because I had been led to believe that there was no problem making the home mortgage payments, only the other debt (which included other real estate). I was also surprised to learn that this problem had been going on for a few months. And I was even more surprised to learn that the clients had been working with a mortgage broker. But what really surprised me was why I was only learning about this now.

Apparently, the clients had been solicited by a mortgage broker who assured them they need not file bankruptcy. He assured them that they would refinance the house and avoid bankruptcy. He also told them not to discuss this at all with me: their bankruptcy attorney.

For reasons that only they can explain, the clients chose to follow that advice. And unfortunately, they may pay a price for doing so: they risk losing their home, and they have complicated their bankruptcy filing and made it more expensive. I write about his with the hope that this error will serve as a cautionary tale to others in a similar situation.

Mortgage brokers get paid a commission based on the mortgage they obtain. If they do not obtain a mortgage, they do not get paid (although some may charge non-refundable applicable fees). If a mortgage broker is able to get financing, no bankruptcy attorney is going to dissuade a consumer for taking it…unless the mortgage product (or the act of refinancing itself) is going to place the client into an even more precarious financial position. With that said, the only reason why a mortgage broker would be concerned about a client talking with an attorney is if the attorney attempted to talk the consumer out of the mortgage….and the only way I see that happening is if the attorney is doing his or her job by protecting the client.

If you’re trying to refinance and are speaking with mortgage professionals, please do yourself a favor and speak with an attorney. If any of these professionals urge you not to speak with an attorney of your choosing, do not do business with them. There is no harm in speaking to your attorney, but there can be great harm to you and your family if you follow the recommendations of someone whose interest is not the same as yours.

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When Your Mortgage Company Files Bankruptcy

The foreclosure crisis sweeping the nation is also sending some mortgage companies into financial ruin, leaving many folks caught in the middle. Last week the Federal Trade Commission issued a new publication giving consumers advice on what to do if their mortgage company files bankruptcy.

The PDF of “How to Manage Your Mortgage If Your Lender Closes or Files for Bankruptcy” can be found here. There is also information how to obtain the publication by mail.

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“Be Debt Free in only 18 months!”

There are ads on local radio stations that make this declaration. Earlier this month, the Federal Trade Commission filed a lawsuit in New York against a couple that operated a variety debt settlement companies: The Debt Settlement Company, The Debt Elimination Center, Pay Help, Inc., Money Helps and Edge Solutions. According to the FTC, unsuspecting consumers looking for help visited websites such as idebthelp.com and moneycares.com and lured into a “debt meltdown program.” According to the FTC,

The complaint alleges that, as a result of being in the defendants’ program, many consumers experience substantially increased debt because of late fees, finance charges, and overdraft charges, and suffer damage to their credit rating because of significant negative information such as late payments, charge-offs, collections, and garnishments, all of which may appear on their credit report for up to seven years.

Read more from the Arizona Republic.

Read more from the Federal Trade Commission.

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