Angela Martin’s Legal Blog

I have received a number of calls from people who are concerned about just how far a collector can go to get money from them.  Often people are scared because the debt collector is making a number of threats or implications during the phone call claiming they will take your car, home and garnish your wages.

 The most important thing to let you know is that it is illegal for them to threaten you over the phone in order to scare you into paying.  If you receive these types of phone calls you should immediately demand that they stop calling you (in writing and over the phone) and report the threats to the appropriate consumer protection agency.

After getting past the threats, you should know how collection proceedings work.  First, you have the debt that you have incurred.  If you have not paid, you will often receive a letter and then the phone calls to collect from you.  In either case, further collection proceedings require the filing of lawsuit against you.  It is only after the lawsuit has been filed, tried (or if you fail to answer a default judgment is entered) that a creditor is able to either:

• 1. place a lien on property you own
• 2. seek a wage garnishment
• 3. levy accounts
• 4. appoint a receiver for a business (in cases)

 Each of these steps require that the creditor have a valid judgment before any of these steps can be taken.  In each of these scenerios you should receive some form of notice - not the Sheriff just magically appearing to take your stuff.

The notices may only be letters sent to your last known address from another attorney or the court, or sent directly to your employer.  So if you know that a creditor is attempting to collect a debt, watch the mail - don’t just throw it in the trash.  Often creditors are willing to work out something even after a judgment has been entered.

The main reason taht people file for bankruptcy - either Chapter 7 or Chapter 13 - is to relieve them of debt.  What is important to remember is that not all debts are dischargeable.  So for quick reference below is a short list of types of debts that CANNOT be discharged.  This means that even after a bankruptcy filing and completion - you still owe!

1.  Most federal and state taxes

2.  Debt incurred based on fraud (ie you wrote untrue statements on a loan or credit card application regarding your income or ability to repay)

3.  Debts not listed on your Bankruptcy Schedules, but you KNEW were there

4.  Debts incurred due to fraud, embezzlement, 0r breach of some fiduciary duty

5.  Judgments based on willfull/malicious conduct that causes personal injury; death or personal injury claims due to a DUI

6.  Domestic support obligations (child support or alimony payments)

7.  Unless there are extreme circumstances - student loans!

There are other debts that are also not dischargeable, but those usually aren’t the concerns of individuals (Federal Reserve debts; corporate tax penalties; profit-sharing contributions, etc).  So, as the goal is to get rid of debt, look at the debts first.  You may have to be more creative.

November 4, 2008 is only seven days away.  The increased numbers of political ads, newstories about polls, billboards reminding you to vote - and of course, the flood of email forwards telling you all the “dirt” about candidates.

 What amazes me the most are the shear number of email forwards that you receive the closer to the election.  I have received emails regarding prayer requests for each of the candidates to win.  I have received emails with touching photos of Sen. Obama; and lists of how “unamerican” he is.  I have received email regarding Sen. McCain plans to “imitate Pres. Bush” or how his time as a prisoner of war is reason enough to elect him.

 Under the flood of all the email propoganda from both sides, one thing that I will say, the present countdown is one of the most entertaining I have ever seen.   I want to thank the bloggers, email forwarders, crazy left-wing liberals and insane right-wing fanatics for making this the most extreme election I have ever participated in.  And most of all, I would like to thank Saturday Night Live - you have outdone yourself this season!

As a general rule, I am not a huge fan of horror movies.  Not because I think they are poorly made or evil or any other content based reason, it is really a cost/benefit analysis.  During most horror films I tend to scare myself more than what I see (or think I will see) on the screen.  This results in me paying teh $10-$12 for tickets and sitting in a theater with my eyes scrunched shut for about half the movie.

Recent case in point - Quarantine.  I saw the previews and if it had not been for a friend who LOVES scary movies, I could happily have waited until it showed upon HBO, Showtime, Cinemax, etc. before seeing it.  But alas, there I was in the theater watchign a scary movie.  If you liked the Blair Witch/Documentary style, this movie may appeal to you.  Also, some 28 Days Later/Zombie movie fans may also find this intriguing.

Unfortunately, once I got over the self-inflicted fear fo things jumping out of dark corners or characters making the decisions to “go back” and help, I actually became annoyed at the movie.  Heavy breathing, constant screaming, surpisingly little backplot - I was dissapointed.

In fact, the next afternoon, I saw Monster House on cable.  This kids movie - about some children who beleive a house is eating people and toys because it is imbued with the evil spirit of a cranky neighbor - actually had a better plot line than Quarantine.  It was better explained, and in my opinion more thought out than the overdone rabies/rage theme that we have seen for quite a while.

As sad as it sounds, teh kids win…

As an attorney, I will tell you the case of a lawsuit time is of the essence.  For every type of claim you can file in court, there is a Statute of Lmitations, aka SOL - a codified period period of time after which a court will no longer recognize your claim. 

 The SOL generally starts either when the claim arises or when you “discover” that you have a claim.  For California there are a number of standard SOL’s:

• Breach of Written Contract - 4 years
• Breach of Oral Contract - 2 years
• Fraud - 3 years
• Personal Injury - 2 years

This means that for these types of cases, you have a limited time in which to get your matter before the court.  There are some exceptions to this rule and for different matters different SOL’s apply.  SO when you come to a lawyer for a matter, it is always important to discuss the dates that things happened as well as when you learned about them.. we would hate for you to end up SOL.

Last night was the second Presidential debate for 2008.  Of course, one of the early topics was the Mortgage industry bail out/rescue (yes, we all play the semantics game).  The question that I found most fascinating was exactly what this bill will do for the average American.

Sen. Obama took the time to explain how small and large businesses require loans in order to regularly meet payroll and that this bill provides the Secretary of the Treasury with the power to address individual loans.  Sen. McCain also brought up the point that he would intitiate some plan by which the government would buy up all the “bad loans” in order to keep people in their homes.

I will be honest here and let you know upfront that at the moment I am a Sen. Obama supporter.  However, if Sen. McCain has an effective plan that incorporates the purchase and required renegotiation of loans (even loans that are current), then put his options on the table too.  As the market currently stands, and with the continuing downfall of home prices, it is imperative that action should be taken on behalf of individual borrowers as well. 

Although I am not an economist, I do have a number of clients who are attempting to renegotiate their loans, refinance, or have been forced to simply walk away from their homes.  The opportunity to demand that a lender cooperate (earlier than receipt of a Notice of Default) will be invaluable.  It’s a solution that must be pushed forward!

This week as I was looking for a topic to blog about, I came across an interesting story.  It is a situation similar to those lawsuits people use to demonstrate how the legal system just goes wrong.  For example, there is the story where a theif breaks into someone’s home, trips on a rug, and then sues the homeowner.

 Well, sad to say, a similar situation has occured in bankruptcy court.  A St. Louis resident hired a contractor to do some work for him.  After paying over $18,000, the contractor never started any work.  Eventually, the contractor was arrested and ordered to pay restitution to the St. Louis resident.  How does this interact with bankruptcy law, you may ask?

 Well, the contractor filed Chapter 7 shortly before his arrest and filed an action in bankruptcy court alleging that the man he defrauded was in violation of the Bankruptcy Automatic Stay that prevents collection of any debt upon the filing of a bankruptcy.  The bankruptcy court actully found in favor of the contractor and ordered the individual to return any amounts he had collected through the restitution proceedings!

The matter was appealed and the final decision is still pending.  In either case, it is a rather twisted situation when Bankruptcy relief denies “justice.”

I think I have mentioned this before in another blog, but I can’t quite remember if I have ever stated this expressly.  I can’t stress enough how important it is for you, as a client, be open and answer the questions we ask completely.

We want to help you, we are paid to help you, but we can’t do anything if we don’t know what is going on.  Hence we request full disclosure. Provide a response.  Embarrassing or not, it’s ok, because if it is not relevant there is no reason for us to share the information.  There is also the added bonus of the attorney-client privilege.  We cannot spread your information around to the world.

Please, when we ask you a question, just give us the facts.  And if we ask for a bit more- again, a bit more information will not hurt.

 Thanks.

There are a few states in the US that recognize a “common law marriage.”  This is a situation in which a couple has lived together for so long (and meets other requirements) that the state just give in and treats them as a married couple.  What does this get you? Some property rights, a form of spousal support, and maybe more.

 California, however, does not have a “common law marriage.”  This means that if you and your significant other lived together for 20 years the state still doesn’t have to recognize this relationship when you break up.  Now, this does not mean that you are completely without recourse.  Thanks to the famous In re Marvin case, famous for Lee Marvin and Michelle Trioles’ break-up, California courts do recognize that some couples who make an agreement to support each other - may be entiteled to some remedy without an actual marriage.

This does not mean that everyone gets half their significant other’s property after a breakup.  You have to prove that (1) there was an agreement regarding either support or a property interest; and (2) this agreement could not have been based on (or contingent) on a “sexual relationship.”  (We would hate for the courts to legalize prostitution!)

So those are the general parameters.  Withuot proving some type of special arrangement (always preferably in writing) - shacking up won’t get you a dime. (generally, speaking of course).

This past weekend I got the opportunity to fly into Boston for a friend’s wedding over the Labor Day Weekend.  It was a great opportunity to run into some old friends that I have not seen in years and also fawn over the beautiful wedding dress, cake, and adorable ring bearer.   This was truly a girly moment in all its glory.

Before leaving for this fabulous event, I tried staying a little later in the office and touching bases with a couple of clients to make sure that I wouldn’t get any major surprises when I got back.  I thought I planned well.  However, for some reason, while smiling for pictures I still managed to think . . . “I wonder if he signed that declaration yet?”  or “I hope they don’t respond until Tuesday.”

From my talk with colleagues, this is pretty common.  You try to put it aside, but there is always some work-related matter that makes quick sprints throug your head during leisure time.  Good news  for clients - not billable!  Bad news for attorney - not billable!

 So, other than minor distractions, I had a great time, and congrats to Romy and Jane!  You guys through a great reception (during which time, I had so much fun, no thoughts of any clients arose).