California Injury Attorney Blog

Over the past few years, Peck Law Catastrophic and serious personal injury attorneys have witnessed an alarming trend--everyone seems to want a part of our clients' personal injury settlements.

A person who has been injured in an auto accident will have a claim against the person who caused his or her injury. That is called a third-party claim. Increasingly, medical-related liens are being filed against third-party settlements says California Serious Injury Attorney Steven C. Peck.

An example of medical liens that are now being filed against accident victims include:

Balance Billing. These are liens filed by a hospital for the difference between the discounted amount paid by the patient's medical insurance plan and the total amount of the bill. Traditionally, hospitals would write off the balance after the patient's medical insurance paid the hospital bill. Arizona state law now allows hospitals to assert a lien against an injured person's third-party settlement for the balance of his/her hospital bill.

Medical Insurance Subrogation. This type of lien comes in many forms. Depending on the employer from which the medical insurance plan is provided, the plan might have rights to assert a lien against an injured person's third-party settlement or even against their uninsured, underinsured or medical payments coverage for the medical expenses paid on his/her behalf. Examples of valid liens are ERISA plans, which are "employer-funded" or "self-funded" health insurance plans; government employees' medical insurance plans; Workman's Comp; and other health insurance plans such as those funded by railroad companies.

Entitlement Health Plans. Medical insurance plans provided under AHCCCS, Medicare, Medicaid, etc., have a statutory lien against third-party claims. However, Medicare is now enacting changes that will allow them, under certain conditions, to attach to settlement monies permanently.

Client's Auto Insurance. Auto insurance plans that provide Medical Payments coverage on a personal injury claim may be entitled to reimbursement from a third-party settlement for any amount paid over $5,000.

Consensual. If the injured person does not have health insurance a medical provider may accept a lien for services provided. This is known as a consensual lien. This lien will be satisfied when the third-party claim is settled

Continue reading "What Are Liens On Personal Injury Settlements?" »

Fair collections law in the state of California is regulated by California's Fair Debt Collection Practices Act, also known as the Rosenthal Act. The law provides consumers with protections similar to those found in the federal Fair Debt Collections Practices Act. California law does differ slightly in the areas of regulating and defining collection agencies. California law also applies to the original owner of the debt, unlike its federal counterpart.

Debt collectors often sell outstanding debts to collection agencies. In California, debt collectors, with the exception of health clubs, are not required to inform debtors that the debt has been sold. California has no special laws requiring the licensing of collection agencies. Collection agencies operating in the state are not required to post a bond as they are in many other states. The state requires collection agencies to operate within the boundaries of the California's Fair Debt Collection Practices Act, also known as the Rosenthal Act. The law regulates debt collection practices not only of collection agencies, but also the original owner of a debt.

The Rosenthal Act was passed in 1977. It regulates debt collection not only of collection agencies, but also the original owner of a debt. The law defines what constitutes harassing behavior by debt collectors and also details what collection methods are acceptable. For instance, when first contacting a consumer by phone, a debt collector must state the purpose of the contact and clearly state that any information obtained from the consumer will be used toward that end. The collection agency must follow up the telephone contact in writing. An agency may contact your employer only under specific conditions. Phone calls are limited to between 8 a.m. and 9 p.m.

The Rosenthal Act provides procedures for disputing debts and also for filing unlawful collection complaints against collection agencies. After receiving written notice of a debt, the debtor has an opportunity to dispute the debt. From there, the dispute can move to mediation, although this is not required. A collection agency may sue the debtor in Superior Court but not Small Claims Court. If a creditor violates the terms of the Rosenthal act, a debtor may file a civil lawsuit against the collection agency. For every proven violation, the debtor is entitled to financial compensation between $100 and $1,000.

Under California Law, collection agencies are allowed to continue adding interest to your outstanding debt, depending on the type of debt. The consumer may ask the agency to detail how interest is being applied and at what rate. This should be done in writing. Any application of interest must be specified in the contract for the original debt.

Credit agencies cannot threaten to report your debt to a credit bureau unless the agency is already a customer of the bureau and it actually does report you to the bureau. If you have disputed the debt, the agency must report that information to the credit bureau as well. Agencies must also update your credit report after you have paid an outstanding debt. Agencies are not legally required to remove any negative information from your report, although that issue is always negotiable.

Continue reading "Collection Laws Attributable to The State of California" »

It should be a little bit easier to get a free credit report.

For five years, Oklahomans have been able to obtain their credit reports free of charge online at annualcreditreport.com. However, the credit reporting bureaus -- Equifax, Experian, and TransUnion -- have been allowed to market their wares on the annualcreditreport.com site, which has led some consumers astray into fee-based services.

Worse, Experian created a massive marketing campaign and Web site -- the deceptively named freecreditreport.com -- that have snared the unwary into signing up for a "free" credit report that also includes a $14.95 month charge for "credit monitoring" if the consumer doesn't cancel their membership within seven days says California Business Lawyer Steven C. Peck who may be contacted toll free at 1.866.999.9085.

Other companies set up similar bait-and-switch Web sites that ensnare consumers
looking for a free credit report.

Such commercial Web sites on now must insert the following statement at the top of each page that mentions free credit reports:

"THIS NOTICE IS REQUIRED BY LAW. Read more at FTC.GOV. You have the right to a free credit report from AnnualCreditReport.com or (877) 322-8228, the ONLY
authorized source under federal law." The sites also must insert a link to ftc.gov and annualcreditreport.com.

At freecreditreport.com, Experian has posted a note reading: "Free credit reports are available under Federal law at: AnnualCreditReport.com."

The new rules, part of the Credit CARD Act of 2009, also require the credit bureaus to stop marketing to consumers on annualcreditreport.com until after they have received their free report.

In September, 2010, Experian and other marketers will be required to insert similar disclaimers (the truth) into their inescapable TV and radio ads.

As someone who has fielded calls from confused consumers were granted access to annualcreditreport.com, I say bravo.

Read more: http://newsok.com/credit-reports-soon-to-be-easier-to-obtain/article/3450276#ixzz0jlX30qmi

If your phone keeps ringing off the hook from creditors clamoring to be paid and ads screaming "Get out of debt today!" begin to sound good, you might be pondering debt settlement and debt consolidation as possible solutions to your troubles.

In debt settlement and debt consolidation, you combine your debts and pay only a portion of the total. But before you sign up, consider these promises that debt settlement companies can't keep.

1. 'Satisfy your debt for cents on the dollar.'
It's difficult to make and keep that promise without knowing the details of how much money you owe, how long you've owed that money and to which creditors, says California Business Lawyer Steven C. Peck
"They don't know your past payment history. They don't know which issuer you owe," she says. "Each person has different assets that can be used to satisfy the debt. ... You can't make a blanket statement."

2. 'We guarantee you'll be debt-free in three months.'
Again, the company does not know who or how much you owe. Some obligations, such as back taxes, student loans and child support can't be covered in a debt settlement plan, Peck says.
3. 'You can't get help without paying an upfront deposit or fee.'
Some debt settlement companies may accept an upfront fee of as little as $50.
But typically, the debtor pays the debt settlement company a percentage of the debt owed -- often 15 percent -- for negotiating the debt, Peck says.

The firm negotiates a payment between you and creditors and accumulates enough money to make that payment. "The debt settlement company will hold the money until you reach the settlement amount," "Meantime, your creditors aren't being paid."

While you're accumulating that payment, "you're not paying your bills and you're getting further and further into debt."

Instead, go to a nonprofit credit counseling firm that might charge you only $20, if anything, Instead of billing the debtor, these counselors often get what's called a fair-share percentage payment from your creditors after you've paid.

4. 'We'll handle everything. You should cease communication with your creditors.'
Although the idea of not talking to or opening mail from creditors sounds like a load off your mind, it's your debt and your credit score, Don't send in a change-of-address form directing all creditor mail to a debt settlement company.
"Remember the creditor is the one with whom you have a contractual agreement," states ZLos Angeles Business Attorney Steven C. Peck. "When all of your statements are going to the debt settlement company, you don't know how much in interest and late fees are being added on. You also don't know if your debt has been moved into collection."

Finally, if you think you need debt settlement, try debt management first, Contact your creditors and ask for reduced interest, suspended payment or more favorable payment terms.

"It's real important just to call and say, 'Hey I can't make this payment. I'd like to work something out."

Continue reading "Beware of Debt Settlement and Debt Consolidation Promises" »

A marketer who falsely advertised auto loans as pre-approved to low-income, "credit-challenged" consumers has reached an agreement with the Federal Trade Commission.

The FTC alleged that Direct Marketing Associates Corp. and its president and owner, John M. Rainey, Jr. also improperly obtained names of consumers from a credit reporting agency.

Rainey's company prepared sales solicitations for automobile dealers "telling consumers that a specific finance company would lend them money to buy a car," but firms in the ads lacked business licenses and didn't actually make any loans, the FTC alleged.

"The marketing company obtained lists of consumers from a credit reporting agency by falsely representing that the lists would be used to make prescreened firm offers of credit to consumers," the FTC said.

The settlement order bars Direct Marketing Associates and Rainey from marketing pre-approved offers, an extension of credit or a financing deal "unless the defendants know that a lender can make good on the offer for all eligible customers." says California Business Lawyer Steven C. Peck who may be contacted toll free at 1.866.999.9085 and on-line at www.premierlegal.org.

The order also prohibits Rainey from obtaining credit reports from consumer reporting agencies without following specific rules under Fair Credit Reporting Act.

The order imposes a $157,000 civil penalty that is suspended, unless Rainey is found to have misrepresented his inability to pay the fine.

Many people in California do not realize that there are two Fair Debt Collection Practices Acts. First, there is the federal Fair Debt Collection Practices Act, which applies nationwide. Second, there is California's Rosenthal Fair Debt Collection Practices Act, which is California's version of the federal law.

There are key differences between the federal Act and the Rosenthal Act:

1. The federal Act generally does not apply to the original creditor (such as, your credit card company), but only to the company attempting to collect the debt on behalf of the original creditor. The Rosenthal Act, however, generally extends its protections to the original creditor. In addition, the Rosenthal Act makes nearly all violations of the federal Act a violation of the Rosenthal Act. That's great stuff for California consumers. And it makes sense: Why should the original creditor not be liable for who it hires? Of course, it should.

2. The federal Act applies to attorneys, while the Rosenthal Act does not. Hence, if you are going to sue an abusive collection attorney, it must be brought under the federal Act.

3. The federal Act applies to repossessors in only limited instances, while the Rosenthal Act extends all of its protections to repossessors. Again, this is a huge advantage for consumers in California.

The distinctions between the federal Act and the Rosenthal Act are critical in assessing any lawsuit involving debt collection harassment. Please feel free to contact my law firm with any questions.

Continue reading "Federal Debt Collection Practices Act and California Rosenthal Act Have Key Differences" »

A security interest is a property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt.It gives the beneficiary of the security interest certain preferential rights in the disposition of secured assets. Such rights vary according to the type of security interest, but in most cases, a holder of the security interest is entitled to seize, and usually sell, the property to discharge the debt that the security interest secures.

A secured creditor takes a security interest to enforce its rights against collateral in case the debtor defaults on the obligation. If the debtor goes bankrupt, a secured creditor takes precedence over unsecured creditor in the distribution.

There are other reasons that people sometimes take security over assets. In shareholders' agreements involving two parties (such as a joint venture), sometimes the shareholders will each charge their shares in favor of the other as security for the performance of their obligations under the agreement to prevent the other shareholder selling their shares to a third party. It is sometimes suggested that banks may take floating charges over companies by way of security - not so much for the security for payment of their own debts, but because this ensures that no other bank will, ordinarily, lend to the company, thereby almost granting a monopoly in favour of the bank holding the floating charge on lending to the company.

Some economists question the utility of security interests and secured lending generally. Proponents argue that secured interests lower the risk for the lender, and in turn allows the lender to charge lower interest, thereby lower the cost of capital for the borrower. Compare, for example, interest rates for a mortgage loan and for a credit card debt.

Detractors argue that creditors with security interests can destroy companies that are in financial difficulty, but which might still recover and be profitable. The secured lenders might get nervous and enforce the security early, repossessing key assets and forcing the company into bankruptcy. Further, the general principle of most insolvency regimes is that creditors should be treated equally (or pari passu), and allowing secured creditors a preference to certain assets upsets the conceptual basis of an insolvency.

More sophisticated criticisms of security point out that although unsecured creditors will receive less on insolvency, they should be able to compensate by charging a higher interest rate. However, since many unsecured creditors are unable to adjust their "interest rates" upwards (tort claimants, employees), the company benefits from a cheaper rate of credit, to the detriment of these non-adjusting creditors. There is thus a transfer of value from these parties to secured borrowers.
Most insolvency law allows mutual debts to be set-off, allowing certain creditors (those who also owe money to the insolvent debtor) a pre-preferential position. In some countries, "involuntary" creditors (such as tort victims) also have preferential status, and in others environmental claims have special preferred rights for cleanup costs.

The most frequently used criticism of secured lending is that, if secured creditors are allowed to seize and sell key assets, a liquidator or bankruptcy trustee loses the ability to sell off the business as a going concern, and may be forced to sell the business on a break-up basis. This may mean realising a much smaller return for the unsecured creditors, and will invariably mean that all the employees will be made redundant.

For this reason, many jurisdictions restrict the ability of secured creditors to enforce their rights in a bankruptcy. In the U.S., the Chapter 11 creditor protection, which completely prevents enforcement of security interests, aims at keeping enterprises running at the expense of creditors' rights, and is often heavily criticised for that reason. In the United Kingdom, an administration order has a similar effect, but are less expansive in scope and restriction in terms of creditors rights. European systems are often touted as being pro-creditor, but many European jurisdictions also impose restrictions upon time limits that must be observed before secured creditors can enforce their rights. The most draconian jurisdictions in favour of creditor's rights tend to be in offshore financial centres, who hope that, by having a legal system heavily biased towards secured creditors, they will encourage banks to lend at cheaper rates to offshore structures, and thus in turn encourage business to use them to obtain cheaper funds.

Continue reading "Security Interests have Preferential Rights in the Disposition of Secured Assets" »

The Commercial Collection Agency Association (CCAA) reported that its members received a record volume of business-to-business accounts for collection in 2009.

Emil Hartleb, Executive Director of CCAA reported that in 2009 CCAA members received $17, 762,139,514 in accounts placed for collection.

This represents an increase of 33.4 percent over 2008. Account placement in 2008 held the previous record, $13,311,932,553.

Hartleb pointed out that the gain in placement for the Fourth Quarter of 2009 compared to the same quarter in 2008 was particularly strong registering a gain of over 48 percent.

He indicated that the problems in the economy's business sector are not behind us yet, particularly for small and medium sized businesses.

In addition to reporting their account placement statistics, members are surveyed quarterly on their outlook for account placement and the collectability of that placement. Hartleb stated that in the survey conducted for the Fourth Quarter of 2009, 70 percent of CCAA's membership believed that a lackluster economy, marked by high levels of account placement and declining collectability, will continue for at least the next six months. This is an increase of approximately 27 percent from the Third Quarter Survey where 55 percent of the CCAA membership believed that account placement would continue to rise and collectability decline.

Continue reading "ACCOUNTS PLACED WITH COLLECTION AGENCIES SET A NEW RECORD" »

The Ninth Circuit affirmed the district court's ruling in Office Depot v.
Zuccarini agreeing that a creditor may levy against a domain name in the jurisdiction
where the domain name registry is located. The decision is significant for two
reasons. First, it affirms (or reaffirms) that domain names are property
subject to the claims of creditors. Second, it allows creditors to proceed
against domain names where the registry is located, thus allowing creditors to
proceed against domain names in one proceeding and more importantly levy
against domain names located abroad (where the registry is located in the
United States). Overall, this makes getting at a domain name much easier for
creditors says California Collection Attorney Steven C. Peck.

Background: Office Depot originally obtained a judgment against frequent cybersquatting defendant John Zuccarini. Office Depot then assigned the judgment to DS Holdings. Office Depot obtained the judgment in 2000 and it's surprising that 10 years later the judgment is finally being enforced against something. Although Zuccarini is proceeding pro se, it seems
like he was or became well versed in putting up roadblocks and delaying resolution of the litigation.

DS went after 190 .com domain names that were registered in Zuccarini's
name. DS originally tried unsuccessfully to have the domain names transferred
directly to it. (This was the technique successfully used by the plaintiff in Bosh
v. Zavala.) Later, DS sought to have a receiver appointed over the domain
names. The district court granted DS's request to have the receiver appointed,
and Zuccarini appealed. Zuccarini's appeal focused on whether it was proper to
appoint the receiver in the Northern District of California, since the domain
names were not necessarily "located" there.
The court's ruling: The court runs through basic principles
of in rem jurisdiction and what rules apply. The court then looks to federal
rules to determine where the receiver should be appointed in this case. Finding
no applicable federal rule, the court looks to California law. California law
provides that a writ of execution may be issued "in the county where the
levy is to be made." With this in the background, the two questions
presented by the court are: (1) "are domain names property that is subject
to execution?" and (2) "if so, where are the domain names located for
purposes of execution?"

With respect to the first question, the court cites to Kremen v. Cohen, and
easily concludes that (under California law) "domain names are intangible
property subject to a writ of execution." Kremen undermined Network
Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759, 770 (Va. 2000), a Virginia
case widely cited for the proposition that creditors cannot get at domain names
because domain names are contract rights rather then property. To the extent
Kremen did not refute Umbro, this decision definitely provides the necessary
ammunition to creditors. (Again, collection is state-specific, and apart from
the analysis of the nature of domain names, the outcome in these cases turns on
the statute in question, which vary from state to state. That said, I think
given the robust marketplace in domain names, Umbro's conception of the domain
name as a personal services agreement seems outdated, and most courts will
easily recognize this.)

With respect to the second question, the court acknowledges that
"attaching a situs to intangible property is ... a legal fiction,"
and the determination must be made in a "context-specific" manner.
Fairness was relevant to the court's determination of the appropriate situs,
and the court was understandably not receptive to Zuccarini's policy arguments
that allowing a court to issue an order directed to the registry would mean
that every .com and .net domain name could be levied through courts in the
Northern District of California. The court also looked to the ACPA, which
provides for in rem jurisdiction over certain cases where the "registrar,
registry, or other domain name authority" is located. Although this was
not an ACPA case, the court found the structure set up by the statute
persuasive and that the writ was appropriately issued from Northern District of
California since VeriSign (the registry for .com domains) is located there.
The decision clears up two things: Although
post Kremen v. Cohen there shouldn't have been much dispute that domain names
are property which are subject to the claims of creditors, the case clears up
any lingering doubt that may have existed. (Kremen and this case applied
California law, but the result shouldn't vary much across other states.)
Second, the decision makes clear that a court which has jurisdiction over the
registry can issue an order allowing the creditor to get at the domain names.
The case also implicitly affirms that getting a receiver appointed to sell the
domain names is the appropriate route for the creditor. Getting the name
transferred to the creditor is not a remedy allowed under California law
(Palacio Del Mar Homeowners Ass'n, Inc. v. McMahon). Additionally, a transfer
of domain names from a cybersquatter to a judgment creditor raises some issues
around potential infringement of third party rights through sales or other
exploitation of the domain names. (See this
post on Bosh v. Zavala for some discussion of those issues.) The method
ultimately used by DS in this case (a receiver) avoids all of these issues, or
at least shifts them over to the receiver rather than the creditor.

As mentioned above, this ruling makes clear that regardless of
whether a domain name is registered through a foreign registrar, a court having
jurisdiction over the registry can issue an order directing transfer of the
domain names to a receiver. With respect to .com and .net domain names, this
means that creditors can try to get at these domain names through proceeding in
the Northern District of California (as the court notes, VeriSign is the
registry for .com and .net domain names and is headquartered in Mountain View).
While the ACPA allows plaintiffs to file in rem suits where the registry is
located, it's nice (for creditors) to have a similar ruling in the
post-judgment context, and one from the Ninth Circuit as well.

Will this cause a rush of similar claims to be filed in the Northern
District of California? It's tough to say, but even post Kremen, it does not
seem like there's been a ton of post-judgment collections activity with respect
to domain names. From a practitioner's standpoint, it's certainly nice to have
this rule on the books.

Continue reading "Creditor May Levy Against a Domain Name in the Jurisdiction Where the Domain Registry is Located" »

Almost every business owner has faced the same problem at one time or another. The business provides a product or service to a customer, the business invoices the customer for payment and the business never receives payment. This situation is frustrating at best and a threat to the business's profitability and its continued existence at worst says California Business Attorney Steven C. Peck.

However, if you provided a product or service to a customer with the agreement that you would receive payment in return then you are legally entitled to payment and there are steps that you can take when faced with this challenging situation. It is important to understand what you can legally do, and what you cannot do, if you have a customer who doesn't pay you. In order to protect your business from nonpaying customers, you might consider:

· Creating your First Invoice Carefully. Your invoice is a contract and should carefully explain the required terms of payment. Most invoices include a payment due date. After that, you may charge appropriate late fees or interest on the uncollected amount due. Your invoice should specify what the late penalties are and include a phone number for your business in case the customer needs to discuss payment terms with you.

· Sending Follow up Invoices. If you do not receive payment within the required time frame then you may send a follow up invoice. If the bill was not paid because of an honest mistake, for instance if it got misfiled or never arrived, then a second invoice will likely result in a payment received. Make sure to mark the invoice as Second Invoice (or something similar) and include the date of the first invoice so that the customer knows that the bill needs to be paid upon receipt.

· Making Follow up Phone calls. Assertive phone calls are often an effective way to receive payment. However, you must make sure that you are following state and federal laws when you make the calls. As general rules, you should only contact the person who owes the debt and not a relative or employer of such person, you should only call the person between 9 am and 8 pm, you should always be truthful in your discussions and you should never be threatening to the customer.

· Using a Collection Agency. A collection agency can take over the collection attempts for you so that you and your employees have the time to devote to the other work of the business. If you decide to hire a collection agency it is important to thoroughly review the agency by requesting references and checking for complaints with your state attorney general's office or local better business bureau office. Your contract with the collection agency should be explicit in terms of what the agency is authorized to do on your behalf and what the agency will be paid.

· Hiring a lawyer. Your lawyer, such as Steven Peck, can help you negotiate with the customer and represent you in any legal proceedings attempting to collect money from the customer.

· Considering Tax Implication. If you already counted the amount invoiced as taxable income then you may be able to deduct unpaid invoices that you decide to forgive rather than collect.

Continue reading "When the Customer Does Not Pay the Invoice When Due" »

Whether you are a business that regularly has customers or clients in collections or you are an individual that is owed money by another person you should seek an attorney that specializes in the field of collections. Too many times people will go either to a collection agency or an attorney they have worked with in the past or have been referred to even though they have no or little collection experience. Usually, these experiences end either ineffectively, costly, or both.

Let's talk about effectiveness. You tell me what is more effective, a letter from a law office or from a collection agency? How about a call from an attorney or a collector? A collector has hundreds if not thousands of accounts on his call list. He treats them all the same because to him they are. He calls, he blows out the person on the other end, and moves on. A collection attorney will take the time to know your file because he is the one that may one day have to appear in court on it. Collection attorneys are also skilled negotiators who will listen when it is time to listen and press when it is time to press. They can, and often do, incorporate many styles of negotiating into a single claim depending upon the situation. Often times they will get a deal on the table when a collector will not.

What about cost? Collection agencies work on volume. Therefore, if you are not providing them with a large number of accounts then you will probably be charged a fairly high contingency rate. Furthermore, they need to incorporate an attorney's rate into their rate in case they cannot collect and the claim needs to go into litigation. For example, if they charge you 33%, they will pay the attorney 25% out of that rate if it goes to litigation. If you go directly to an attorney you may be able to negotiate the same or lesser rate and skip the "middle man", so to speak.

What else does cutting out the "middle man" mean? It means you do not have to assign your claim as is so often required by collection agencies. This means that instead of the legal right to collect the claim being in their name, it stays your name. Granted, if an assignment occurs the agency will owe you a fiduciary duty, however, you are essentially giving up your rights and should never do this. Collection agencies can go out of business overnight and/or collect money and not remit to the original creditor. It has been known to happen. If you go to a collection attorney they represent YOU, and they are not going to risk their practice and years of expensive schooling by not looking out for your best interests.

Maybe you are thinking, "If my account goes to a collection attorney anyway if the agency cannot collect, why not take two bites at the apple?" As we discussed, the collection agency is likely going to charge you a higher contingency. Also, the account may no longer be in your name. Of additional importance is that now that the collection agency is involved they will stay involved even once the account goes into litigation because they have a vested interest in it. So instead of dealing with the attorney directly, you are still dealing with the collection agency who is dealing with the attorney. He is essentially their attorney, not yours.

Continue reading "Collection Attorneys versus Collection Agencies" »

Many of us have one, or two or maybe even three.

We get them to build credit, or earn points for vacations, but the rates and terms for many credit cards are soon changing.

Credit cards can either be your best friend, or your worst nightmare.

But if you keep an eye out, some new changes could prove to be more friendly.

Card holders beware, 22 new changes for your accounts will go into effect on February 22nd, 2010.

"Credit card companies cannot charge you a late fee unless you're 60 days or more delinquent, you usually only have 14 days to pay that bill, that will be extended to 21 days, due dates must remain the same every month, they will not allow you to go over your credit card limit." Says California Business Attorney Steven C. Peck.

The new laws are meant to protect both consumers and lenders.

Especially the debt stricken college aged student who has an average of $3100 worth of debt.

Among the many changes, new restrictions could determine how companies solicit to students, and just who can sign up for a credit card.

"If you are under the age of 21, you will have "If you are under the age of 21, you will have to have a parent or legal guardian's co-signature in order to get a credit card. For parents or guardians out there though, that info will also on your credit report, so you have to be careful about that." Says Peck.

Perhaps the most notable change involves your interest rate. Your credit card company now has 45 days to notify you of a rate change and why it's changing.

"You will somewhere in the wording of the letter they send you, you will either have the option to either call or write a letter to opt out of that rate increase. Once you opt out of that, your rate will go back down but your access to that card will close." Says California Business Lawyer Steven C. Peck.

From clearer wording on bills to other stricter rules and regulations, some think the changes will make the decision between cash or credit a little easier.

"You shouldn't over draw you account, that's just going to cost you a lot of money, they have all kinds of penalties. So, probably have a place where they actually stop and say no- it would help people prevent getting themselves in too deep." Says Los Angeles Business Attorney Peck.

Continue reading "New Credit Cards Changes Go Into Effect on February 22, 2010" »

California provides a distinct and orderly process to sell real property
under a writ of execution. Code of Civil Procedure §§701.510, et. seq. This
method has a number of important safeguards for the debtor built in. These
include:
• Personal service of notice on the debtor;
• An opportunity for the debtor to respond;
• Title report or equivalent is obtained and reviewed;
• Fair Market Value and homestead exemptions are determined;
• Debtor given minimum 120 days from notice to sale; and
• Homestead Property must sell for at least 90% of determined Fair Market
Value.
Due to the strictures of this process, there are a number of reasons why a
judgment creditor might not obtain satisfaction in the end. Consider these
common issues:
• The execution method requires cash on sale or within 10 days and these
days, buyers with cash are looking for a better deal than 10% under fair
market value
• Buyers are not able to walk through and inspect the property before
buying resulting in a lower bid price, especially on questionable properties
• A mistake is made in the process, where the process must begin again
• The sale lacks the benefit of common open market sales like listings on
the Multiple Listing Service, aggressive marketing by a licensed real
estate agent, ability for buyers to obtain financing, inspections and repairs,
etc.
• The sheriff or levying officer has numerous responsibilities and cannot
devote any significant amount of time toward insuring completion of the
sale or other "special attention"
If you are in a situation where you have gone through an execution sale
without success or have a business or collection matter appointment of a receiver may well provide some satisfaction in your case.

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Continue reading "The Realities of Execution Sales in California" »

California provides a distinct and orderly process to sell real property
under a writ of execution. Code of Civil Procedure §§701.510, et. seq. This
method has a number of important safeguards for the debtor built in. These
include:
• Personal service of notice on the debtor;
• An opportunity for the debtor to respond;
• Title report or equivalent is obtained and reviewed;
• Fair Market Value and homestead exemptions are determined;
• Debtor given minimum 120 days from notice to sale; and
• Homestead Property must sell for at least 90% of determined Fair Market
Value.
Due to the strictures of this process, there are a number of reasons why a
judgment creditor might not obtain satisfaction in the end. Consider these
common issues:
• The execution method requires cash on sale or within 10 days and these
days, buyers with cash are looking for a better deal than 10% under fair
market value
• Buyers are not able to walk through and inspect the property before
buying resulting in a lower bid price, especially on questionable properties
• A mistake is made in the process, where the process must begin again
• The sale lacks the benefit of common open market sales like listings on
the Multiple Listing Service, aggressive marketing by a licensed real
estate agent, ability for buyers to obtain financing, inspections and repairs,
etc.
• The sheriff or levying officer has numerous responsibilities and cannot
devote any significant amount of time toward insuring completion of the
sale or other "special attention"
.

Continue reading "Sale of Real Property Under a Writ of Execution" »

The statutory remedy of selling real property under a writ of execution
provides a strict but orderly process that a judgment creditor may follow toward
satisfaction of the judgment. However, judgment creditors may consider the
process to be too complex and the cost prohibitive in light of the nebulous results
attendant to the statutory procedure.
This article discusses use of a court appointed receiver to sell real
property as an alternative to the statutory execution sale. Using a court appointed
receiver to sell real property offers a number of distinct advantages over an
execution sale:
• There is a greater degree of certainty that the property will sell under an
order appointing a receiver-often in the same amount of time (or less) as
a creditor's first run through an execution sale (i.e., about five months);
• Once the receiver is appointed, he handles all of the procedures
necessary to complete the sale with very little effort needed from the
creditor; and
• The receiver can sell the property on the open market, through a real
estate agent, to realize the highest return possible.
Despite the obvious advantages, appointment of a receiver is considered
a "drastic remedy" and many courts will not grant an order to appoint a receiver
unless there are extenuating circumstances and "good cause", such as:
• A previous execution sale against the property was unsuccessful;
• The net amount expected from an execution sale will not satisfy the
judgment in full;
• Non-debtor third parties own an interest in the subject property;
• The property includes a resident business that is also subject to execution
against an interest of the judgment debtor;
• The judgment debtor stipulates to appointment of the receiver in order to
get the greatest value for the property applied toward the judgment; or
• A fraudulent transfer of the property has been made or threatened, or
there are other circumstances indicating fraud or dissipation of the asset.
In the most general terms, the moving party should be prepared to show:
• That the other less drastic remedies provided by statute are inadequate
AND that appointment of the receiver will substantially improve the
outcome; OR
• That the receiver is necessary to preserve the interests of all concerned,
particularly if outside third parties have an interest in the property or there
are "badges of fraud" present.

Continue reading "Use of a Court Appointed Receiver to Sell Real Property" »