Just in time for the holidays, the Fifth Circuit has released THE MOST BIZARRE OPINION OF THE YEAR. A lawyer claiming to be a Deity and a Monarch brought suit against the United States and the State of Louisiana on behalf of the Atakapa Indian de Creole Nation. The District Court sensibly dismissed the suit based on sovereign immunity. However, the Fifth Circuit chose to affirm the decision on the ground that the suit was so completely frivolous that the federal courts lacked jurisdiction to even entertain it. Atakapa Indian de Creole Nation, No. 19-30032 (5th Cir. 12/10/19), which can be found here.According to the Court:This action was originally brought as a habeas corpus proceeding by Edward Moses, Jr., a lawyer who calls himself the trustee of the “Atakapa Indian de Creole Nation.” This group is not a federally recognized Indian tribe, and its precise nature is unclear. See Indian Entities Recognized by and Eligible To Receive Services from the United States Bureau of Indian Affairs, 84 Fed. Reg. 1200 (Feb. 1, 2019). The initial complaint alleged the Atakapa “are being held as wards of the State through the Louisiana Governor’s Office of Indian Affairs” and “in pupilage under the United States,” and sought formal recognition as “indigenous to Louisiana.” The claims were based on a gumbo of federal and state laws, including eighteenth-century federal treaties with France and Spain, as well as sources such as the “Pactum De Singularis Caelum, [or] the Covenant of One Heaven.” The plaintiff subsequently filed something resembling an amended complaint, which sought to reclassify the action as a “libel suit” under maritime jurisdiction.Opinion, p. 2. According to the very patient court:Some claims are so insubstantial, implausible or otherwise completely devoid of merit as not to involve a federal controversy. Federal courts lack power to entertain these wholly insubstantial and frivolous claims. Determining whether a claim is wholly insubstantial and frivolous requires asking whether it is obviously without merit or whether the claim’s unsoundness so clearly results from the previous decisions of (the Supreme Court) as to foreclose the subject. (cleaned up). Opinion, p. 3.  The Court's answer in the present case was "Well, duh!" They did not actually use those words although that was the gist of the opinion.The pleadings speak for themselves. To begin with, the Atakapa’s counsel, Edward Moses, Jr.—who appears to be the real plaintiff—refers to himself throughout under such titles as: “His Majesty,” “[T]he Christian King de Orleans,” “[T]he God of the Earth Realm,” and the “Trust Protector of the American Indian Tribe of הֶשׁמ Moses” (bold and Hebrew script in original).The plaintiff’s claims are no less bizarre. For instance, the original complaint alleges, without any explanation, that the Atakapa are being held in “pupilage” by the United States and as “wards” of Louisiana. The first amended complaint seeks a “declaration of rights guaranteed . . . by the 1795 Spanish Treaty with the Catholic Majesty of Spain and the 1800 French Treaty with the former Christian Majesty of France.” The proposed second amended complaint attempts to name these additional defendants: Secretary of the Interior Ryan Zinke, Attorney General Jeff Sessions, King Felipe VI of Spain, Prime Minister Justin Trudeau of Canada, President Emmanuel Macron of France, Chancellor Angela Merkel of Germany, Prime Minister Theresa May of the United Kingdom, Pope Francis, President Xi Jinping of China, President Abdel Fattah el-Sisi of Egypt, Prime Minister Fayez al-Sarraj of Libya, President George Weah of Liberia, Prime Minister Antonio Costa of Portugal, and President Donald J. Trump. That same document also alleges that the United States and Louisiana seek to monopolize “intergalactic foreign trade.” This was no typographical error: the plaintiff continues to argue on appeal that the defendants are attempting to “monopoliz[e] . . . domestic, international and intergalactic commercial markets.”We will not try to decipher what any of this means. To do so might suggest that these arguments have some colorable merit. Despite all this, jurisdiction would still lie if the plaintiff presented a non-frivolous federal question. We find none. For example, the plaintiff asserts various antitrust violations, but fails to allege any colorable basis for them. The best he can do is to allege anticompetitive behavior by Thompson Reuters. He seeks an injunction, not to stop anything defendants are doing to the Atakapa, but instead to “restrain[ ] the Doctrine of Discovery and the Doctrine of Conquest more commonly known as the Doctrine of White Supremacy.” Many of the arguments depend, not on the alleged violation of any federal statute or rule, but instead on the assertion that “[t]he 1803 Louisiana Purchase Treaty is not ‘Law of the Land.’” (partially cleaned up).Opinion, pp. 3-4.The opinion was written by Stuart Duncan Kyle, a Trump appointee who was confirmed on a party line vote. Some pundits and Senators were concerned that his prior work on religious liberty issues might lead to bias on the bench. However, those concerns were clearly unwarranted in this case. I also like Judge Kyle because he uses the "cleaned up" parenthetical which I have started using in my own writing.While it is fun to revel in the sheer silliness of this opinion, it does raise an important question. The trial court had warned the Plaintiff that he was in danger of being sanctioned under Rule 11. However, if the Court never had subject matter jurisdiction to begin with, did it have the power to impose sanctions? As it turns out, the Supreme Court has answered this question. A court which lacks subject matter jurisdiction may impose Rule 11 sanctions, although it may not find a party in civil contempt. The Court explained:A final determination of lack of subject-matter jurisdiction of a case in a federal court, of course, precludes further adjudication of it. But such a determination does not automatically wipe out all proceedings had in the district court at a time when the district court operated under the misapprehension that it had jurisdiction.*** An imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such an order implicates no constitutional concern because it does not signify a district court's assessment of the legal merits of the complaint. It therefore does not raise the issue of a district court adjudicating the merits of a "case or controversy" over which it lacks jurisdiction. (cleaned up) Willy v. Coastal Corp., 503 U.S. 131, 137, 138 (1992). 

Will My Bankruptcy Show Up on a Background Check? A lot of people worry that if they file for bankruptcy in Arizona, they won’t ever be able to get credit again. They know that bankruptcy can stay on their credit report for a long time, and that can make them seem like poor candidates for credit with future lenders. What many people don’t realize, however, is that bankruptcy can also be an impediment to getting future jobs. Many employers run a comprehensive background check on prospective employees, which includes a criminal history, a credit check, and a public records check, and bankruptcy is included on the latter two. A bankruptcy filing can give employers pause, indicating that you may not be a person who makes good decisions or who is responsible. Bankruptcy could also indicate to a prospective employer that you have a lot going on in your life that will distract you from work or cause you to call out often. If you are applying for a job that handles finance, a bankruptcy filing could indicate that you aren’t very good with finances. Some employers just run a criminal background check, which would not include a bankruptcy filing. In other cases, you could also run out the clock on your bankruptcy filing. A Chapter 7 bankruptcy in Arizona stays on your credit record for 10 years, and an Arizona Chapter 13 bankruptcy filing stays on your record for seven years. Consequences for Employment of Not Filing for Bankruptcy All that may make bankruptcy sound very ominous and deter you from talking to a bankruptcy lawyer around Arizona when you need the debt relief. But the consequences of not filing for bankruptcy can be severe for your job search and other aspects of your life. If you don’t file for bankruptcy, that means you are going to continue struggling with debt. You may use your credit cards to pay for the things you need, and as your balances climb higher, your credit score will lower. You may continue to pay things late or be unable to pay them at all, and that will leave your credit history littered with late payments and delinquencies. The longer that goes on, the longer your credit check will make you seem like a risk to employers. Filing for bankruptcy puts an end to that and starts the clock sooner for your negative credit history to expire. Take Proactive Measures If an employer runs a background check on you and finds any negative information, including a bankruptcy, you may be passed over for the position without even knowing why. If the employer lets you know that your background check was a problem, you may be able to explain. However, in many circumstances, you will never get that chance to explain and potentially persuade. It’s far better if you take proactive action and let prospective employers know that you have a bankruptcy before they even run the background check. That way, you can be sure you get a chance to explain the circumstances behind the bankruptcy, such as a divorce, a sudden layoff, or an illness. You can assure the employer that the bankruptcy was unavoidable and that you are a responsible person who has since developed a plan for moving forward. Repair Your Credit Maybe you don’t have an “acceptable” explanation for your bankruptcy. Maybe you really did shop too much and fail to budget properly and you found yourself in over your head. You don’t have to wait for your bankruptcy to drop off your credit record to start making amends. You can repair your credit quickly after a bankruptcy by making good choices and using credit wisely. You can get a credit card in as little as a year after your bankruptcy filing. If you use that credit card appropriately, you can start building up your score and creating a positive credit history again. Prospective employers will look at your credit history and see that you made a mistake but that you have learned from it and are making good choices – exactly what they would want to see in an employee. Yes, an Arizona bankruptcy can show up on a background check for employment, for renting a new apartment, or for any other reason that a background check is required. That doesn’t have to mean that you are out of the running, nor does it have to mean that you should avoid bankruptcy because of potential future consequences. The consequences of not filing for bankruptcy can be much more severe and long-lasting. You can easily rebuild your credit and start rebuilding your life after a bankruptcy by making the right choices and working with the right advisers. Talk to the bankruptcy attorneys at My AZ Lawyers if you are struggling with debt. They can help you understand how a Chapter 7 bankruptcy or a Chapter 13 bankruptcy may be able to give you the debt relief you so desperately need. Our attorneys serve clients in Mesa, Glendale, Tucson, and Phoenix, and they are committed to providing fast debt relief for all who qualify. Call our bankruptcy law office today to get started! My AZ Lawyers Mesa Location: 1731 West Baseline Rd., Suite #100 Mesa, AZ 85202 Office: (480) 448-9800 Glendale Location: 20325 N 51st Avenue Suite #134, Building 5 Glendale, AZ 85308 Office: (602) 509-0955 Tucson Location: 2 East Congress St., Suite #900-6A Tucson, AZ 85701 Office: (520) 441-1450 Avondale Location: 12725 W. Indian School Rd., Ste E, #101 Avondale, AZ 85392 The post Will My Bankruptcy Show Up on a Background Check? appeared first on My AZ Lawyers.

Many people are collecting Social Security disability benefits in Pennsylvania. Some of them, due to the unfortunate death of a spouse, may become eligible for survivor benefits as well. So, can someone receive both disability and survivor benefits at the same time in PA? Our Pennsylvania disability attorneys at Young, Marr & Associates outline Social […] The post Can You Get Disability and Survivor Benefits at the Same Time in PA? appeared first on .

The Epic Rise and Hard Fall of NewYork's Taxi KingBy Brian M. Rosenthal.Dec. 5, 2019Evgeny A. Freidman in his garage in Long Island City, Queens. Sasha MaslovThe man known as the Taxi King arrived at his 2014 holiday party in a $384,000 Ferrari, wearing a custom Italian suit. He told the guestswhom he had invited to an upscale Manhattan club - including executives, politicians and celebrities - that he had flown in from SaintJean-Cap-Ferrat, a town in the French Riviera where he owned two villas.Five years later, that man, Evgeny A. Freidman, stood in a mostly empty courtroom in Albany, N.Y., as a judge sentenced him to probationfor tax fraud. In a hushed voice, he said he had lost everything."I'm trying to be remorseful and understanding for anybody I might have harmed;' he told the judge at the hearing in October. "I'm veryhumbled by what has happened."For more than a decade, New York taxi industry leaders got rich by creating a bubble in the market for the city permits, known asmedallions, that allow people to own and operate cabs.In several articles this year, an mvest1gat10n by I he New York limes found that government officials stood by as mdustry leadersartmciio~tiji\laAe~~$Uiffia§atr!d5:hanneled immigrant drivers into loans they could not afford to purchase the permits. The lea(iersreaped hundreds of millions of dollars before the bubble burst, wiping out thousands of buyers who are still mired in debt today.And no one embodies the glittery rise, unfettered recklessness and spectacular collapse of the industry more than Mr. Freidman.A Russian immigrant and a cabdriver's son who got his nickname by building the city's biggest fleet, Mr. Freidman was a primaryarchitect of some of the tactics used to build the bubble, according to records and interviews. At the height of the market, he hadaccumulated $525 million in assets. He befriended the filmmaker Spike Lee, the baseball star Mo Vaughn and Mayor Bill de Blasio. Hisoutsize antics and lavish spending often landed him on Page Six, the New York Post's gossip column.As a generation of cabdrivers became trapped in overwhelming debt, Mr. Freidman created offshore trusts that protected some of hismoney when the bubble burst, records show. While his business partners lost millions because of his tax fraud, Mr. Freidman avoidedprison by cooperating with a federal investigation into one of his partners, Michael D. Cohen, President Trump's former lawyer."He hurt so many people in so many different ways;' said David Pollack, the former head of the Committee for Taxi Safety, an associationof fleet owners that once included Mr. Freidman. "Your headline could be: 'The man who brought down the taxi industry.'"Mr. Freidman did not respond to repeated requests for comment. Government officials declined to answers questions on why they did notintervene sooner.This account is based on interviews with more than 20 of Mr. Freidman's former associates and a review of thousands of pages of courtrecords and other documents.Mr. Freidman is now cooperating with prosecutors who started investigating the taxi industry after The Times published its series thisyear on the exploitative tactics that drove medallion prices to soar past $1 million by 2014 from $200,000 in 2002. He has met with themthree times so far.'I'm in , you 'r e out'Mr. Freidman, 49, who is known as Gene, likes to portray himself as a scrappy fighter who rose from first-generation immigrant tomultimillionaire solely through his wits and fists.But like everything involving Mr. Freidman, the reality is more complicated.He was born in St. Petersburg, Russia, in 1970, an only child. Six years later, his family emigrated to New York, he has said in interviews.His father, who Mr. Freidman said had been a thermonuclear engineer, got a job as a cabdriver but soon began buying medallions andbuilding a fleet, records show.Mr. Freidman attended the Bronx High School of Science, Skidmore College and Cardozo Law School. Afterward, he has said, he moved toRussia to work in private investing.Mr. Freidman has said in speeches that he returned to the United States in 1996 at the request of his father, who had become a successfuland respected fleet owner. During the flight home, he crafted a plan to use what he learned in Russia to revolutionize the taxi industry.His idea was straightforward: He wanted the industry to take more risks to increase profits.Specifically, Mr. Freidman has said he wanted lenders to allow medallion purchasers to borrow more money, with smaller down paymentsand longer repayment periods. Former associates said he believed this strategy would allow him and others to buy more medallions,enable lenders to increase profits and, mostly, drive up medallion values. He believed that would spur more purchases, more loans, moreprofits and even higher medallion values."I walked in and took over;' he later recalled. "I told my dad, 'I'm in, you're out.'"Prominent - and polarizingMr. Freidman was 26. He was cocky, but he needed help. He turned to the small nonprofit that had lent to his father, Progressive CreditUnion, and its chief executive, who had become a family friend, Robert Familant.Between 1997 and 2004, Progressive's loans enabled Mr. Freidman to buy about 100 medallions to expand his fleet, according to cityrecords and former associates.At the same time, Mr. Freidman became a licensed broker and helped some drivers purchase medallions, mostly using loans fromOther industry leaders used similar tactics. But few were as aggressive as Mr. Freidman.More Mr Freidman's success emboldened others, and helped encourage lenders to push low-incomedrivers to take on massive loans to buy medallions."He changed the market:' said Ira Goldstein, a former chief of staff at the city commission that oversees the industry. "People copied him,and it affected everybody, including the driver-owners."Mr. Familant did not respond to requests for comment.As Mr. Freidman expanded his fleet, he became increasingly prominent - and polarizing.To his allies, Mr. Freidman was charming and passionate, with a perspective that improved a long-stagnant industry. He put his fleet inseveral neighborhoods, making it more accessible for his drivers. He worked long hours. He embraced energy efficiency, becoming thefirst to use hybrid cabs.Others saw him as vindictive and vulgar. Lawsuits have accused him of cheating his drivers, clients and partners. Last year, he wasordered to pay $1.3 million to an assistant who sued him for sexual harassment. On his desk, he kept a snow globe sprouting a middlefinger.The highest bidderMr. Freidman unleashed his most radical idea on June 16, 2006, at an auction where the city sold new medallions.At the time, a medallion cost $350,000 on the private market, according to a Times analysis. But at the auction, Mr. Freidman and hisassociates bid $477,666.50 apiece.They won all 54 medallions sold.The results reshaped the small medallion market. In effect, Mr. Freidman single-handedly had increased the value of all medallions,including ones he had owned for years - and also increased prices for everyone, making it harder for drivers to buy without enormousloans.Years later, Mr. Freidman admitted he had intentionally overpaid to inflate the values of medallions he owned. He said in a 2012 speechthat he used the values to persuade lenders to loan him more money."I would bid crazy prices. People would look at me like I'm crazy, and I wouldn't care:' he said, "because I would look at the prices and say,'This is market value."'Mr. Freidman repeated the strategy at three other auctions, records show. In all, he bought more medallions at auctions than anyone elsein city history.Riches and powerThe medallion bubble turned Mr. Freidman into a remarkably rich man.His fleet had about 900 of the city's 13,587 medallions. Most were owned by others who charged him a fee for the right to operate their cabsand keep the profits. He personally owned about 250 permits, and at the height of the market, each was worth $1.3 million, although theywere mortgaged, records show.Mr. Freidman knew the prices would not last, according to five former associates. So he used the medallions as collateral to borrow moneythat he invested elsewhere.He bought 20 commercial properties, records show. He opened locations of a French whimsical pajama store in New York, Arizona,California, Georgia and Washington state. He acquired medallions in Chicago and Philadelphia, helping to spike prices in those cities.He bought a 4,000-square-foot townhouse on Manhattan's Upper East Side, an estate in the Hamptons and a condo in Chicago, in additionto the French villas.He also invested in politics. He donated to former Representative Anthony Weiner's 2013 mayoral campaign and to Mr. de Blasio. Later, hebragged to associates that Mr. de Blasio placed one of his friends at the taxi commission.Mayoral spokeswoman Freddi Goldstein rejected that notion. "Any suggestion that we hired anyone at his request is a blatant lie;• She said that "The mayor ceased contact with Gene Freidman as soon as he realized he was a bad guy."Mr. Freidman also began managing Mr. Cohen's medallions. They became friends; during Mr. Freidman's divorce.Several of Mr. Freidman's former associates said as he became wealthier, he stopped paying his debts.During the bubble, when Mr. Freidman was worth millions, he was sued or otherwise accused of failing to fully pay his drivers, employees,clients, partners, lawyers, contractors, landlords, lenders, an accountant and a car dealer as well as child support payments, associationdues, insurance premiums and taxes.Between 2013 and 2016, the state ordered him to pay nearly $1.5 million for cheating drivers. But he has failed to fulfill that order, too,records show.The aftermathNow that the bubble has burst, Mr. Freidman is awash in lawsuits and eviction notices.A judge ruled in 2016 that he transferred more than $60 million into trusts in Belize, Nevis and the Cook Islands in order to avoid payingcreditors. Mr. Freidman had defended the transfers as part of estate planning. "It is impossible to conclude that the timing of the transfersis merely coincidence;' the judge wrote in ordering the trusts to pay the creditors.The tax fraud case, filed in 2017, involved two surcharges collected by cabs that Mr. Freidman owned and ones he managed for others: a50-cent fee for regional transit improvements, and a 30-cent fee for more wheelchair-accessible taxis.Officials initially accused Mr. Freidman of pocketing more than $30 million.But after agreeing to cooperate against Mr. Cohen, he ultimately repaid $1 million to the state and $826,000 to the city. In addition to fiveyears of probation, he had to exit the industry and authorize officials to seek $4 million more in the future. (Mr. Cohen is now serving athree-year sentence for campaign finance violations and other crimes.)"He no longer has any involvement whatsoever in taxi operations in New York City. He's done;• said Allan J. Fromberg, a spokesman forthe city Taxi and Limousine Commission.The city and the state have also demanded millions from the owners who entrusted medallions to Mr. Freidman's fleet, even though theydid not know about the scheme or benefit from it. The taxi commission did not respond to questions about the collections. The stateattorney general's office, which prosecuted the tax fraud case, declined to comment, citing its ongoing investigation into the industry."It's unbelievable;' said one owner, Robert Rosen, 72.Mr. Rosen, who said he committed his medallion to Mr. Freidman because he knew his father, lost $30,000. "The things the governmenthas let this crook get away with. It's shocking!'Susan Beachy contributed research.

Discharging Medical Bills with a Bankruptcy: What are the Rules? The health care system has gotten out of control, with expenses skyrocketing and insurance coverage falling steadily. More and more people are paying out of pocket for their medical expenses, or they are getting hit with giant bills for what insurance does not cover. People are maxing out their credit cards, launching Internet campaigns, and selling what they can to pay off their spiraling medical debt. Excessive medical debt is one of the top reasons that people file for bankruptcy in Arizona. Fortunately, in many cases, bankruptcy can eliminate medical debt or can make it more affordable to repay. Here’s what you need to know if you are thinking of calling a bankruptcy law office to deal with your medical debt: Organizing Debts The first thing your Mesa bankruptcy lawyer will do is assess your finances, including your debts and your assets. Your debts will be organized according to whether they are priority debts or non-priority debts. Balances like back taxes or child support are considered priority debts since they cannot be discharged. Any income or assets you have available to pay your creditors will be diverted to these debts first. Medical debt is considered non-priority debt. Unless you have a lot of assets, it’s likely that your medical debt will be discharged in a bankruptcy filing. Chapter 7 Bankruptcy A Chapter 7 bankruptcy in Mesa is considered a “clean slate” bankruptcy because it completely eliminates unsecured, or non-priority, debt such as medical bills and credit card bills. So even if you have charged some of your medical bills to your credit cards, you can still completely eliminate your medical debts with a Chapter 7 bankruptcy filing. However, you must first meet eligibility criteria before you can file for Chapter 7 bankruptcy. You have to show that your disposable income falls below a certain threshold and that you do not have more than the allowable assets. Chapter 13 Bankruptcy If you can’t qualify for Chapter 7 bankruptcy, you might consider filing for Chapter 13 bankruptcy. Under Chapter 13 bankruptcy, your income and debts are analyzed to determine an affordable payment plan over a three- to five-year period. You are ordered to pay a single amount each month, which is then distributed to your creditors. The amount you pay each month under a Mesa Chapter 13 bankruptcy plan include a pro rata amount for each creditor. Your priority creditors are paid first and then your non-priority creditors. The bankruptcy trustee will determine how much you can pay, so you if you don’t make enough, you may not qualify to file for Chapter 13 bankruptcy. However, if you do qualify and you complete your repayment plan, whatever remains of your original debt will be discharged. It is most likely that you will end up paying very little toward your original medical debt compared with your other debts. Choosing Bankruptcy Determining whether bankruptcy is right for you, and which kind of bankruptcy might be right for you, requires you sitting down with an experienced bankruptcy lawyer and analyzing your financial situation. Your Mesa bankruptcy attorney will help you understand the different options and how each of them can help you. The goal would be to get the maximum debt relief you can under bankruptcy protection. Don’t let medical bills ruin your life. Before you start liquidating assets or running up credit cards, visit a bankruptcy law office to talk about your options. You may be able to discharge that medical debt before it has a chance to bring down your finances or sink you into greater debt. If you are struggling with medical bills or other debt, contact My AZ Lawyers to talk to an experienced bankruptcy lawyer. We’ll analyze your finances and help you understand how bankruptcy may be able to help you. We help individuals file for Chapter 7 bankruptcy and Chapter 13 bankruptcy, and we help business clients interested in bankruptcy also. We serve clients in the Mesa, Glendale, Tucson, and Phoenix areas, and we have a reputation for excellent service and efficient results. Contact us today to talk with a bankruptcy attorney about your options for bankruptcy and how you may be able to get the debt relief you need. My AZ Lawyers Mesa Location: 1731 West Baseline Rd., Suite #100 Mesa, AZ 85202 Office: (480) 448-9800 Glendale Location: 20325 N 51st Avenue Suite #134, Building 5 Glendale, AZ 85308 Office: (602) 509-0955 Tucson Location: 2 East Congress St., Suite #900-6A Tucson, AZ 85701 Office: (520) 441-1450 Avondale Location: 12725 W. Indian School Rd., Ste E, #101 Avondale, AZ 85392 The post Discharging Medical Bills with a Bankruptcy: What are the Rules? appeared first on My AZ Lawyers.

In a previous article, Wynn at Law, LLC, highlighted why the holidays are an ideal time to discuss your estate planning needs. The old adage ‘there’s no time like the present’ holds true with estate planning. So, here is a little more detail on the most common, and sometimes overlooked, planning tool: The Will. There are three types of wills about which you should give some thought. The Last Will and Testament is what most people know about and refer to generally as a “Will.” In addition to the Last Will and Testament, there is also a Living Will and a Pourover Will. The Last Will and Testament There are dozens of online templates that suggest you can do this yourself. The problem with that is simple: How many have you done? An experienced attorney will help you create a legally binding document that specifically suits your needs, expresses what your final wishes are, and is tailored to Wisconsin law. That’s so important, because the tool speaks for you after you pass on, directing how you want assets divided and appointing who will be in charge of acting on your estate’s behalf. The Living Will The Last Will and Testament becomes effective at your passing, while the Living Will speaks for you when you are unable to speak for yourself due to injury or illness. This document makes known your wishes regarding life prolonging medical treatments. This tool, also called an advanced directive, is every bit as important as the Last Will and Testament. However, a University of Pennsylvania Philadelphia study found that less than a third of adults have a Living Will. The Pourover Will We’re covering Trusts next in this series, but you should know that this particular tool can save the day for your loved ones. When you forget or neglect to add all property into your planning documents over the years– and people do forget to go back and revise their estate plan when circumstances change – this tool puts the forgotten property into a Trust. This tool got its name because any assets you failed to title into your trust prior to your passing will “pour over” into the trust after you are gone. Stay up to date You’re going to want to review all of these Wills and your wishes periodically, too, because ‘life happens.’ In the following two articles on the Estate Planning Toolbox, Wynn at Law, LLC, guides you through Trusts and Powers of Attorney. The post Your Estate Planning Toolbox: The Will appeared first on Wynn at Law, LLC.

 The 7th Circuit decision reduced the punitive damage award from $3 million to $582,000, finding this was the maximum possible award based on the ratio between $82,000 awarded under the state law count for which punitive damages were awarded and the $3 million punitive damage award.  Saccameno v United States Bank Nat'l Ass'n, 2019 U.S. App. LEXIS 35550 (7th Cir., 27 November 2019).  An explanation of the background is useful to see how the servicer's errors resulted in a judgment likely in excess of the amount of the debt, even when reduced.A typical chapter 13 case resulted in substantial post-discharge litigation when Ocwen Mortgage failed to properly account for payments in the chapter 13 case, and improperly commenced foreclosure.  Ms. Saccameno had filed a chapter 13 plan providing for curing the prepetition default on her mortgage, and continuing to pay the ongoing mortgage payment under the court's supervision.  The bankruptcy court issued a notice of final cure under Fed. R. Bankr. 3002.1, to which Ocwen did not respond.   Immediately after receiving the discharge, Ocwen undertook collection actions against her, apparently based on a mistake by an employee who coded the discharge as a dismissal in their records.  This was compounded by another error in which Ocwen's foreclosure module which inaccurately reflected that Ms. Saccameno had not made any mortgage payments in 2013.  Ms. Saccameno repeatedly attempted to correct Ocwen's records, including sending them copies of the bankruptcy paperwork.  When Ocwen began to reject mortgage payments that were, in fact, current, Ms. Saccemeno employed counsel who again repeatedly sent documentation to Ocwen showing the loan was current except for payment improperly rejected by Ocwen.  While the prepetition foreclosure remained stayed by the circuit court, Ocwen was preparing to revive it and periodically sent appraisers and inspectors to the property, adding such costs to the debt of Ms. Saccemeno.  Prior to reviving the foreclosure, Ms. Saccameno filed suit for breach of contract for the refused payments; the Fair Debt Collection Practices Act (FDCPA) for the false collection letters; the Real Estate Settlement Procedures Act (RESPA) for inadequate responses to her inquiries; and the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) for Ocwen's false oral and written statements regarding her default and its unfair practies in violation of consent decrees Ocwen had entered with various regulatory bodies.  A jury trial followed on such complaint, resulting in an award of $500,000 compensatory damages under the breach of contract, FDCPA, and RESPA claims.  Only the ICFA permitted punitive damages, and under this claim the jury awarded $12,000 in economic damages, $70,000 in non-economic damages, and $3,000,000 in punitive damages.  The total verdict was $3,582,000.  Ocwen appealed, and the verdict was upheld by the district court which found Ocwen's employees had been deliverately indifferent to the risk that Saccameno would be harmed, and management had notice of an ratified its employees conduct.  Ocwen also challenged the ratio of compensatory and punitive damages.  The district court determined the the proper comparator for the punitive damages was the total amount awarded in all counts; resulting in a punitive damage ratio of 5:1 which it determined was not unconstitutionally high given the reprehensibility of Ocwen's conduct.  The Seventh Circuit reversed the final finding of the district court, accepting Ocwen's argument that the ratio computation must look just to the compensatory damages awarded under the state law ICFA claim in the amount of $82,0001.  Using solely these damages, the punitive damage ratio would be 37:1.  While the district court found that such a ratio might still be constitutional, the Circuit Court disagreed.  The 7th Circuit concluded that $582,000 in punitive damages was reasonable, as reflecting a 1:1 ratio relative to the total compensatory award and an approximate 7:1 ratio relative to the $82,000 awarded on the ICFA claim.1 The 7th Circuit looked to the Supreme Court's decision in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003) for guideposts determining the reprehensibility of the defendant's conduct as well as standards for the punitive damage ratio.↩Michael BarnettMichael Barnett, PA506 N Armenia Ave.Tampa, FL 33609-1703813 870-3100https://hillsboroughbankruptcy.com 

You are likely reading this because you live in Pennsylvania and need debt relief, but are on the fence about whether you should file bankruptcy or pursue debt settlement or debt consolidation with your creditors. This guide will explain the pros and cons of each option so that you can decide which is best for you, take action, and get free of debt. Philadelphia bankruptcy attorney David M. Offen has used both bankruptcy and debt settlement and debt consolidation to help his clients get free of debt. What is PA Debt Relief? You’ve probably seen the advertisements and TV commercials by Pennsylvania debt settlement agencies trying to persuade people struggling with debt to hire them to settle their debt.  How does this work? You pay the agency to negotiate with your creditors on your behalf to achieve a “settlement” – meaning, you pay something less than what you owe. This is done over time – you pay the agency every month, and the agency disburses payments to your creditors. Are Debt Relief Programs a Good Idea? These agencies often claim that for most people, debt settlement is a better alternative to bankruptcy, and they warn people away from bankruptcy because a bankruptcy filing can remain on one’s credit report for years. While that is true, you need to know that there are downsides to debt settlement as well. Is Debt Settlement Really Worth It? Perhaps – it depends upon different factors like the amount of income you have vs. the amount of debt and how many different creditors you have. Also consider the following… 1. No creditor is required to negotiate with you outside of bankruptcy. Each of your creditors is entitled to be paid in full per the terms of their contracts with you, and creditors have little incentive to negotiate with you unless the law intervenes somehow (such as with Bankruptcy’s automatic stay). Some creditors may be willing to negotiate but will require a lump sum payment of the settled amount, and that’s not how debt settlement agencies work. The agency tries to get all of your creditors to agree to be paid some lesser amount, and then you pay the agency each month and the agency pays your creditors over time. Some creditors may not want to negotiate at all. In that case, you may be settling with and paying some of your creditors, while others remain unpaid. Here’s what happens next: 2. Any creditor can continue collection efforts or sue you while you are in debt settlement. While you are in debt settlement, there is nothing legally preventing any creditor from trying to collect the debt you owe, or suing you. Filing a bankruptcy petition is the only sure way to stop collection efforts and force creditors to the table. The minute you file the “automatic stay” is in place, protecting you from intrusive and annoying collection efforts. If you’ve been sued, the automatic stay provides immediate reprieve from creditor actions to collect such as levy on bank accounts, garnishment of wages, eviction from or foreclosure on your home, and repossession of your vehicle. In other words, if you have several delinquent accounts and opt for debt settlement, you may be paying some creditors while being sued by others. 3. Forgiven debt is taxable to you as income. If the agency is successful in settling your debt, the amount of debt that is forgiven is reported to the IRS by your creditors and that amount is taxable to you as income. This raises your tax bracket, requiring you to pay more tax on all of your income. 4. The debt settlement agency takes their cut first. Yes, you read that right. Even if your debt settlement agency is able to settle all of your debt for you, when you pay the monthly payment to the agency, the agency takes their percentage and then disburses the rest to your creditors. This means your creditors get paid only a small amount each month. While this does not seem problematic on its face, if your debts are in collection chances are that your debt has been sold to or is being administered by a debt collection agency. These agencies do not have the infrastructure to accept and account for small monthly payments over time and so are not willing to wait for payment. Some debt settlement agencies take a step further by calculating their total fee and applying your monthly payments to their fee first, leaving your creditors unpaid for months! While this is prohibited by the Federal Trade Commission, be sure to read the fine print if you opt to work with a debt settlement agency. Debt Consolidation or Bankruptcy? In Some Circumstances, Debt Settlement is a Better Alternative to Bankruptcy There are situations where debt settlement makes sense. For example, if you have only one or two delinquent accounts, or if you have too much equity in your assets to avoid seizure by the bankruptcy Trustee, then it may be in your best interests to negotiate with your creditor(s) to pay off these debts in a lump sum or over time. These negotiations can take place either before or after a creditor files suit against you to collect on the debt, however, the sooner you can get help to negotiate with your creditors the better. Waiting until a creditor files a lawsuit means that you will have to pay legal fees and filing fees to defend in that action. Sometimes the contract you have with a creditor will allow that creditor to add their legal fees to your debt, meaning that you pay the creditor to sue you! Talk about adding insult to injury! Last, waiting until a creditor takes a judgment against you may mean that your wages can be garnished, your bank account may be levied upon, or a lien may be placed on your property. Once you know that a creditor is taking collection efforts against you and perhaps planning to sue you in order to collect on the debt you owe, contact us at (215) 278-4495 as soon as you are able so that we can meet and discuss ways that you can avoid these possibilities. Bankruptcy Pros and Cons You Get a “Fresh Start” Bankruptcy offers you a “fresh start” because your unsecured debt is discharged – meaning, you are no longer responsible for that debt and do not have to pay it. Unsecured debt includes most credit cards, medical debt, personal loans, some forms of taxes, and private student loan debt. Bankruptcy Deals With All of Your Creditors In a Chapter 7 Bankruptcy filing, all of your unsecured debt is discharged and your creditors can no longer try to collect. You can also surrender a home or car you cannot afford in Chapter 7 and be discharged of the underlying debt. Recently we helped a client with little income who had a gambling problem and over $150,000 in credit card debt. The whole credit card debt was wiped out and he got a fresh start. In a Chapter 13 Bankruptcy filing, all of your debt is addressed through your Chapter 13 plan. The Chapter 13 plan is a 3 or 5 year payment plan to pay off any mortgage or car payment arrears and perhaps some of your unsecured debt through affordable monthly payments to the Trustee.  Unlike debt settlement of debt consolidation, all of your creditors are forced to accept your plan, and at the end of the plan, you are discharged of any remaining unsecured debt. Recently we helped a client who owed over $50,000 in credit card and collection agency debt. Her Chapter 13 plan of reorganization reduced her monthly payments to $280 per month for 36 months with the remaining balance being wiped out when she completed her plan. Your Credit Score Will Improve After the Bankruptcy While it is true that the fact of your bankruptcy filing will remain on your credit report up to ten years, how quickly you repair your credit after filing for bankruptcy relief is determined by your payment history from then on, and that, of course, is up to you and how you manage your debts after your case closes. Many of our clients have reported that their credit score improved shortly after their bankruptcy case closed. This happens because their unsecured debt was discharged and their debt-to-income ratio improved so dramatically. How does a debt relief program affect your credit? Consider that leaving unpaid debts out there, or even settling with creditors for a lower amount, also has a negative effect on your credit rating. How long does settled debt stay on credit? Perhaps as long as a bankruptcy does, if you do not replace that old negative information with new, positive information like accounts kept current. Can I get a credit card after debt settlement? Yes, but the interest rate will be high because credit card companies would have seen the settled debts on your credit report, and would consider you high-risk. The same applies to bankruptcy, however. Your best bet is to get a credit card after debt settlement or after filing bankruptcy, and pay it off every month so that there is no revolving debt subject to that high interest rate. You will help build your credit back up this way, too. In Bankruptcy, You Get Financial Management Training The mandatory credit counseling and financial management training you take as part of your bankruptcy case should assist you in managing your finances, in tandem with the “fresh start.” In Bankruptcy, You Have No Tax Liability for Discharged Debt Unlike debt settlement or debt consolidation, you will pay no income tax on debt that is discharged in Chapter 7 or Chapter 13 bankruptcy. Please take note of this important caveat: the information on this page is not legal advice, nor is it intended to be legal advice. The purpose of this page is merely to introduce you to some basic concepts so that you can have an informed discussion about your options when you attend your consultation. If you need a Philadelphia bankruptcy attorney, give us a call. We look forward to meeting with you and helping you get free of bills.   The post Need Debt Settlement or Debt Consolidation? Bankruptcy vs Debt Relief appeared first on David M. Offen, Attorney at Law.

If you are a child support obligor (meaning, you pay child support) and you are reading this because you are wondering, does bankruptcy clear back-owed child support, the simple answer is no.  But bankruptcy might be a solution for you in other ways, by discharging and/or reorganizing other debt and making your monthly child support payment more affordable. If you are a child support obligee (meaning, you receive child support) and you are wondering whether child support received is considered income for bankruptcy purposes, it probably is. Speak with an experienced local bankruptcy attorney about this. If you need a bankruptcy attorney in Philadelphia or the surrounding areas, contact our office today – your initial consultation is free of charge! Bankruptcy and Child Support Arrears For reasons of public policy, Congress provided an exemption for child support arrears (i.e., accumulated missed payments) in bankruptcy, categorizing child support as a “priority debt” that cannot be discharged. As a priority debt, child support arrears are paid before other general unsecured debts like credit card debt and medical debt. Child support arrears also are paid before most other priority debts – including back-owed taxes. Can interest on child support be discharged? No. If interest accrues on child support arrears in your state. it must be paid either through your Chapter 13 plan, or outside your Chapter 7 bankruptcy case. Chapter 7 Bankruptcy and Child Support Payments While the “automatic stay” stops most creditors from attempting to collect a debt you owe, Chapter 7 does not “stay” or stop the child support obligation because an obligor’s post-filing income is not part of the bankruptcy estate. So, after filing a Chapter 7 bankruptcy petition, an obligor must continue to pay child support and is still obligated to pay any child support arrears. Chapter 7 does not stay any legal proceeding to either establish, modify, or collect child support – meaning, a child support obligee can file a motion to modify or to enforce a child support order without first obtaining permission from the bankruptcy court. Child Support Modification and Chapter 13 Bankruptcy Chapter 13 Bankruptcy will not itself stop child support – neither the obligation to make continuing payments post-petition (after filing bankruptcy) nor the obligation to pay pre-petition (before filing) arrears. In other words, if an obligor files a Chapter 13 petition, he or she must continue to make child support payments and is still liable for child support arrears. However, he or she can provide for payment of any pre-petition child support arrears over a 3- or 5-year plan. Chapter 13 can help an obligor get caught up with child support, and get his or her other unsecured debt discharged once the Chapter 13 plan is complete. If an obligor files Chapter 13 bankruptcy and so has an additional monthly payment in the form of a plan payment to make, he or she might be eligible for a modification (decrease) in child support based on a significant change in circumstances. If a modification is granted, however, this will not change the amount in arrears that the obligor must pay, with interest, through his or her Chapter 13 plan. Unlike Chapter 7, in Chapter 13 the obligor’s post-filing income is considered part of the bankruptcy estate. So if an obligee wants an increase in child support or wants to initiate a collection action to collect any past-due post-petition child support, he or she must file a motion for relief from the automatic stay with the bankruptcy court and get the court’s permission to do so. What Can I do about Child Support Debt? You can’t discharge child support debt in bankruptcy. But getting other debt discharged in bankruptcy will free up more of your income so that you can more easily afford to pay child support. One unfortunate side effect of a bankruptcy discharge for child support obligors is that, if the obligor has less debt and therefore less or fewer monthly bills to pay after his or her bankruptcy, the obligee might file a motion for modification (increase) of child support because the obligor’s financial circumstances have significantly improved. Family law is state law and varies from state-to-state, and the interaction of family law with bankruptcy law can be very nuanced. Be sure to discuss your bankruptcy options and all of the possible effects of bankruptcy on your finances, including your child support obligation, with an experienced local bankruptcy attorney prior to filing.   The post Does Bankruptcy Clear Child Support? appeared first on David M. Offen, Attorney at Law.

Like child support in bankruptcy, alimony is a domestic support obligation that cannot be discharged in bankruptcy. However, filing Chapter 7 or Chapter 13 bankruptcy might help an alimony obligor (payor) get other debt discharged and make the alimony payment more affordable. How obligors are treated when they fall behind in paying alimony differs state-to-state.  In many states, an alimony obligor who defaults on his or her alimony payment will be charged interest as the arrears pile up. A family court judge could order an obligor’s wages garnished, an obligor’s drivers license suspended, or even sentence an obligor to prison. Domestic Support Obligations in Bankruptcy In the Bankruptcy Code a “domestic support obligation” is a financial obligation “in the nature of alimony, maintenance, or support” ordered to be paid by the court. What does “in the nature of” mean? Congress used that language in recognition of the fact that when parties divorce, certain aspects of their property settlement agreement may be intended for support if not described that way expressly. A bankruptcy judge will always look at the property settlement agreement carefully to determine whether any of the arrangements are really “in the nature of support” rather than simply division of assets. Generally, if an obligation is necessary to help the obligee (recipient) pay for basic necessities, it will qualify as support. The bankruptcy judge also looks to whether: The obligation is labelled as “support” in the divorce judgment; The obligation was placed in a section of the judgment labelled “support”; The obligation terminates when the obligee dies or remarries; The obligation terminates when the obligor remarries; The obligation is payable over time; There is a significant disparity in the parties’ relative incomes; The obligation looks like it makes up that disparity; There is no other mention of support elsewhere in the divorce judgment. Any division of marital property that cannot be categorized as “in the nature of support” using this criteria may be dischargeable in bankruptcy. There are two other criteria for finding that a debt is a non-dischargeable domestic support obligation: The debt must be owed to a former spouse, and The debt must be incurred in connection with a court order, such as a divorce judgment or property settlement agreement. Property Settlement Agreements can be used to set forth distribution of marital assets as well as responsibility for marital debts. While most property settlements are not dischargeable in Chapter 7, these can be discharged in Chapter 13: Hold Harmless Agreements Cash in Lieu of Other Assets Hold Harmless Agreements and Chapter 13 Bankruptcy If credit card debt was incurred by one or both spouses to benefit their family, either spouse might take responsibility for it in their property settlement agreement. While that agreement is enforceable against both spouses, it is not enforceable against the credit card company – the credit card company can try to collect from either spouse, regardless of their agreement. Spouses in this situation often execute a Hold Harmless Agreement, which provides that if the spouse taking responsibility for the debt does not pay it, and the credit card company collects from the other spouse, the spouse who was supposed to pay must reimburse the spouse who paid. This reimbursement debt is not dischargeable in Chapter 7 but may be dischargeable in Chapter 13. If you owe this type of debt, talk to an experienced bankruptcy attorney about whether you can have it discharged. Cash in Lieu of Other Assets and Chapter 13 Bankruptcy It is common for couples to offer cash in lieu of other assets, especially when the marital home is their only major asset. In that case, if the custodial parent wants to stay in the home with the children, he or she might agree to pay their ex so much per month until they pay off half of the value of the home. This kind of debt is not dischargeable in Chapter 7 bankruptcy, but maybe dischargeable in Chapter 13 bankruptcy. If you have this type of debt, contact a local bankruptcy attorney to discuss your case. Chapter 13 Bankruptcy and Alimony Arrears Alimony arrears is a “priority debt” that must be paid before any general unsecured debt is paid. An obligor can stretch out payment of alimony arrears over his or her 3 to 5 year Chapter 13 plan. Debt arising under Hold Harmless Agreements and Cash in Lieu of Other Assets provisions in a property settlement agreement are treated as general unsecured debt and are dischargeable. Whether those debts are paid or partially paid is determined by the amount of income the debtor/obligor has to fund his or her Chapter 13 plan. If he or she has only enough income to pay alimony arrears over five years, then the rest of the general unsecured debt is not paid at all and is discharged. Bankruptcy Can Help Struggling Child Support or Alimony Obligors While bankruptcy cannot help an obligor by discharging alimony arrears or changing the amount of alimony paid, both Chapter 7 and Chapter 13 bankruptcy can help an obligor by eliminating other debt. Chapter 13 can be used by obligors to eliminate certain financial obligations under a property settlement agreement or to establish a reasonable payment plan of alimony arrears over between three to five years. Talk with an experienced local bankruptcy attorney about whether there are any aspects of your property settlement agreement that are not “in the nature of” support and therefore eligible for discharge in bankruptcy. Even if you must pay support and repay support arrears, elimination of your other debt might improve your financial situation drastically. If you need a Philadelphia bankruptcy attorney, call us today. Your initial consultation is free of charge! The post Is Alimony Dischargeable in Bankruptcy? appeared first on David M. Offen, Attorney at Law.