Nolo Author Leon Bayer to Be Featured on KALW’s Your Legal Rights

Your lawyer won’t call you back?  Missed a deadline? Failed to appear in court?  Doesn’t seem to have the expertise to handle your case? Or maybe you just don’t agree with your lawyer’s advice?

Find out your options if you are having trouble with your lawyer.  On November 26, 2014 you can hear Leon Bayer live on KALW’s “Your Legal Rights” radio show. Leon will be talking about what to do if you have issues with your lawyer and will answer calls from you!

Here are the details:

Live Radio Show:  Got Lawyer Trouble?

When to Listen: November 26th, 7 PM to 8 PM.

How to Listen:  The program airs live on KALW 91.7 FM Radio, San Francisco, California. The program also streams live on the Internet at http://kalw.org/listen-live.

Can’t Tune In on the 26th?:  You can listen to the recording later.

About Leon Bayer

Leon Bayer is a Los Angeles, California bankruptcy attorney, practicing since 1979. He is coauthor of Nolo’s The New Bankruptcy: Will It Work for You? and the author of “Ask Leon” — a regular feature of this blog.

Official Bankruptcy Forms Will Change on December 1, 2014

Bankruptcy_Petition_iStock_000008359066XSmallThe Judicial Conference Committee on Rules of Practice and Procedure (how’s that for a mouthful) is responsible for revising and updating the official bankruptcy forms – those are the forms that you must use when you file for bankruptcy. In the past few years, the Judicial Conference has embarked on a project (the Forms Modernization Project) to make the forms easier to understand and fill out, especially for those people who are filing without an attorney.  (Learn more about completing the bankruptcy forms.)

The Committee has already revised a few of the official bankruptcy forms, and recently approved changes to another batch of forms.  As of December 1, 2014, bankruptcy filers must use new versions of the following forms:

Application to Pay Filing Fee in Installments. The new form removes the reference to the filing fee amounts.

Application to Have the Chapter 7 Filing Fee Waived. In the new form, the actual filing fee figure is no longer included on the blank order form.

Chapter 7 Means Test Forms. Currently, there is only one Chapter 7 means test form (Official Form 22A). Starting December 1, 2014, there will be three separate forms related to the Chapter 7 means test. (Learn more about the Chapter 7 bankruptcy means test.)

  • Form 22A-1. Chapter 7 Statement of Your Current Monthly Income. Everyone filing for Chapter 7 bankruptcy must complete this form. It calculates your current monthly income (which is actually based on your income from the previous six months) and compares it to the median income in your state for the same family size. If your income is above the state median, and you don’t fit into one of the categories in Form 22A-1-Supp, then you must also complete Form 22A-2. If your income is below the state median, then you don’t have to complete Form 22A-2.
  • Form 22A-1-Supp. Statement of Exemption from Presumption of Abuse Under §707(b)2). There are several instances when you do not have to pass the Chapter 7 means test in order to be eligible for Chapter 7 bankruptcy. If any of these apply to you, you must complete Form 22A-1-Supp.
  • Form 22A-2. Chapter 7 Means Test Calculation. If your income is above the median income in your state, you must complete Form 22A-2. This form goes through a series of steps that look at your income and expenses and determine if you can afford to repay a certain amount to creditors. If you “pass” this part of the test, you can file for Chapter 7 (assuming you meet other eligibility criteria). If you don’t pass, you cannot file for Chapter 7.

Chapter 13 Disposable Income and Plan Period Calculation Forms. Currently, there is one form (Official Form 22C) you complete in order to determine how long your Chapter 13 plan will last and the amount of your disposable income (which plays a large role in how much you must pay into your plan each month).  (Learn more about disposable income and the Chapter 13 plan.) Starting December 1, 2014, there will be two forms related to this inquiry:

  • Form 22C-1. Chapter 13 Statement of Your Current Monthly Income and Calculation of Commitment Period. Everyone filing for Chapter 13 bankruptcy must complete this form. It calculates your current monthly income and compares it to the median income in your state for a same size family. If your income is below the state median, your plan will most likely last three years, and you can use your actual expenses when calculating your disposable income. In this case, you don’t have to complete Form 22C-2. If your income is above the state median you must also complete Form 22C-2.
  • Form 22C-2. Chapter 13 Calculation of Your Disposable Income. If your income is above the state median, you must complete this form which calculates your disposable income using preset expense figures.

The forms also have a few other changes throughout. For example, one revision makes clear where to list Internet expenses and another accommodates a U.S. Supreme Court decision regarding future income changes in Chapter 13 bankruptcy.

On December 1, 2014 you’ll find the new forms, along with all of the other official forms, on the U.S. Court’s website, here.  You’ll also find an explanation of each of the new forms in Nolo’s Bankruptcy Forms area (articles on the new forms won’t be posted until December 1).

Ocwen Caught Backdating Mortgage Letters

trap,  catchAccording to a recent review of Ocwen Financial Corporation, a major mortgage servicer, by the New York Department of Financial Services (DFS), Ocwen may have backdated thousands of letters it sent to borrowers who were trying to save their homes from foreclosure.

What Types of Letters Did Ocwen Backdate?

The DFS review into Ocwen’s servicing practices revealed that the company sent letters to borrowers denying their loan modification requests and giving them 30 days to appeal; however, in many cases, those letters were backdated by more than 30 days. This means the deadline to appeal had passed by the time the homeowners received the letters. (Learn more about government loan modification programs.)

In other cases, Ocwen sent letters to borrowers who were behind in payments giving them a deadline to cure the default and avoid foreclosure — but the deadline was months before the borrower actually received the letter.

How Many Borrowers Received Backdated Letters?

The DFS indicates that the backdating issue goes back to 2012, though the New York Post has reported that the problem may have started as early as 2010. As of now, there’s really no way to know how many backdated letters Ocwen has sent (or continues to send). Ocwen is the largest non-bank mortgage servicer in the country and currently services over two million mortgage loans, so it’s quite possible that thousands of improperly backdated letters have gone out. 

Ocwen’s Track Record of Servicing Errors and Abuses

This isn’t the first time that Ocwen’s mortgage servicing procedures have hurt borrowers. A previous investigation into Ocwen’s servicing activities revealed extensive misconduct, including robosigning and charging improper fees, among other errors and abuses in their mortgage servicing processes.

As a result, in December 2013, Ocwen reached a settlement with 49 state attorneys general, the District of Columbia, and the Consumer Financial Protection Bureau that, among other things, required Ocwen to comply with certain standards for servicing loans and to provide $125 million to eligible borrowers. (Learn more in Nolo’s article Foreclosure Relief for Homeowners With Ocwen Mortgages.)

What the Backdating Scandal Means for Harmed Borrowers

It looks very likely that Ocwen will subject to yet another settlement and have to pay millions of additional dollars in restitution payments to borrowers who were harmed by backdated letters.

Also, if you have a mortgage loan that Ocwen services and you applied for a loan modification, but were denied, review your denial letter closely. If the dates don’t make sense, you might want to consult with an attorney who can help you enforce your appeal rights.

You should also speak to an attorney if you’ve received a letter from Ocwen giving you a deadline to cure a mortgage default and avoid a foreclosure, but that deadline had already passed. If that letter (the “breach” letter) is invalid, any subsequent foreclosure steps may also be invalid.

Posted by guest blogger Amy Loftsgordon

Tips for Getting a Great Reaffirmation Agreement in Bankruptcy

Would you like to negotiate a reaffirmation agreement in Chapter 7 bankruptcy so you can keep secured personal property for less? Below are my tips for getting a great deal when reaffirming car loans and debts for jewelry, furniture, major appliances, and electronics.

What Is a Reaffirmation Agreement in Bankruptcy?

Most folks who file Chapter 7 bankruptcy have secured personal property debts they want to reaffirm. (Personal property is anything that is not real estate.) Secured debts are those for which you pledge an item of property to guarantee payment of the debt. If you don’t make the loan payments, the creditor can repossess the property. Common examples include car loans, and loans money you owe for the purchase of furniture, large appliances, expensive electronics, and jewelry. (Here’s a more detailed definition of what secured debts are and how they work.)

In bankruptcy, if you have a debt that is secured by personal property you must either give up the property, redeem the property (pay market value for it), or reaffirm the debt (that is, agree to be responsible for the debt even after you get the bankruptcy discharge).  (Learn more about options for dealing with secured debts in bankruptcy.)

Reaffirming a debt is not to be taken lightly, so be sure you understand what it is and why you might want to do it.  You can learn about the pros, cons, procedures, and reasons for making a reaffirmation agreement here.

If you decide you do want to reaffirm a debt in Chapter 7 bankruptcy, you may be able to get a better deal by negotiating with the creditor. Here’s how.

Negotiating the Reaffirmation of a Car Loan

When you reaffirm a car loan in order to keep your car, you might be able to get loan terms than the ones you currently have. First, you need to know what kind of loan you have. Money you owe on a motor vehicle will fall into one of two categories: “purchase money” loan or “non-purchase money loan.” If you have a purchase money loan, you have a slim chance to get only a slightly better deal than you already have. If you have a non-purchase money loan, your chances of saving a bucket of money are quite good.

Purchase Money Car Loans

With a purchase money car loan, the debt is the original financing you obtained when you first bought the vehicle (you used the loan money to buy the car). Typical purchase money lenders include Ford Motor Credit, GMAC, Toyota Motor Credit, etc. It doesn’t matter if you bought your vehicle new or used – the loan is a purchase money loan if the vehicle was new to you, and the same, original financing is still in place.

Lenders holding a purchase money loan rarely offer you better terms in a reaffirmation agreement.

  • Loans offered by vehicle manufacturers. If the lender is connected to a vehicle manufacturer like GM or Ford, I find they will not budge. You can ask, but it will probably tell you to keep the original contract terms or else surrender the vehicle.
  • Major bank loans. Major banks rarely drop the amount you owe, but sometimes will agree to cut the interest rate which will, in turn, reduce your payment amount. According to recent experiences, if you have a vehicle loan with Wells Fargo Bank you stand a great chance of getting a decent reduction in the rate of interest. Other major banks may give you little or no relief.
  • Loans by small banks. The smaller the bank, the better your chances are to save money (the exception being Wells Fargo).

Keep in mind with all of these lenders: It costs nothing to ask.

Non-Purchase Money Vehicle Loans

Any other vehicle loan is a non-purchase money loan.  A person might take out a non-purchase money loan if he or she owns the vehicle “free and clear” (meaning the person doesn’t have a car loan). If you need fast money, you can take a loan out against your car. Typical non-purchase money lenders include companies that offer “title loans,” credit unions, small finance companies, and loan sharks.

Lenders with a non-purchase money agreement are likely to give you a good deal. This is because such loans are usually on older vehicles. The older the car and the higher the mileage, the better will be your chance to save a lot of money. It just makes sense. The lenders know they can’t sell an old car for very much money.

What to Ask For

When making an offer on a reaffirmation agreement, ask the lender to reduce the loan balance and the interest rate. Remember, this is a negotiation. You can expect the lender to come back with a counter offer. So, make your starting offer lower than the amount you are really willing to pay.

Tips for Getting What You Want

Now, here’s the inside super tip you have been waiting for. The non-purchase money lender does not want to repo your car unless you leave it with no other reasonable choice. When I negotiate, I like to tell the lender that the car is an awful mess. I say I am doing the lender a big favor by advising my client to pay something for it instead of giving it up. If my client has young kids, I tell the lender there are Cheerios jammed into all the seats, the kids have vomited or urinated on the upholstery, and that the interior does not smell “fresh as a daisy.” I remind the lender that my client will get a ton of new car offers from every new car dealer in the county as soon as the discharge is granted. And, to persuade my client to reaffirm the loan, I have to bring to my client a very good offer. I think you get the idea.

⇒⇒⇒ TIP: One more big tip: The more willing you are to surrender the item, the better deal you’ll get. This is true for cars, jewelry, and any other kind of personal property. It is especially effective on electronics and furniture, which have virtually no used resale value in the hands of a lender.)

Negotiating a Good Deal When Reaffirming Jewelry Debts

You can get great reaffirmation deals on jewelry. Did you buy your jewelry from a store in big shopping mall? If so, the $4,000 diamond you bought will probably only fetch around $500 at a pawn shop. (Don’t believe me? Take your jewelry to a pawn shop or two, and see what they offer. This will give you a starting point for negotiating with the lender.) Armed with knowledge of the street value of your jewelry, you should have no trouble getting a reaffirmation agreement for about half the amount you still owe on it.

Negotiating Reaffirmation Agreements on Furniture

To get a great reaffirmation deal on furniture, use the same negotiating tactics described above for non-purchase money car loans. The older the furniture, the cheaper you can get it for.

Would you like to keep your furniture for free? Here’s how. Tell the lender you are willing to surrender it because it’s not in good condition. (If you have kids who have beaten up your furniture, don’t be shy about revealing the details.) If you can tolerate the risk of actually losing the stuff, you will probably get to keep it. It has been decades since I have seen a lender repossess household furniture. It has no street value to the lender, and it actually will cost the lender money to haul it away. What if the lender schedules a time to pick the stuff up? Don’t panic – it doesn’t mean it actually will show up. More likely, the lender is just trying to scare you into paying for it.

Negotiating Reaffirmation Agreements on Major Appliances

Major appliances do have some street value, unlike furniture. You should expect to get your stuff for about half the amount you still owe. The older your items are, the more you will save. If you have an appliance that is more than three years old, there is a good likelihood the lender won’t ever pick it up, even if it schedules a pick-up date.

Negotiating Reaffirmation Agreements on Electronics

You can often get good reaffirmation agreements on electronics. Old computer equipment is worth nothing. However, if your items are less than one year old, the lender probably does want them.

As with other types of items though, you can take a chance and tell the lender to come pick the stuff up. The lender will tell you (or order you) to bring the electronics back to the store. Nope. Tell them “no.” Bankruptcy requires you to offer to surrender the secured item to the lender if you don’t work out a reaffirmation agreement.  But it does not require you to bring the items to the lender. If the lender wants it, it has to come get it. And, like anything else, it costs the lender money to come to your home and haul the item away. Chances are, the lender won’t show up — unless you recently bought the items.

by Leon Bayer

Leon Bayer is a Los Angeles bankruptcy attorney.  He is a partner at Bayer, Wishman & Leotta, a California law firm specializing in bankruptcy.  The opinions and advice in this blog post are from Mr. Bayer alone, and should not be attributed to Nolo.  By answering a question on this blog, Mr. Bayer does not become your lawyer.

Find Leon on Google+

 

 

 

Bankruptcy Means Test Median Income Figures to Change on November 1

The United States Census Bureau recently published new statistics on the median income for individuals and families in each of the 50 states, plus the District of Columbia.  On November 1, 2014, the median income numbers that you must use when filing for bankruptcy will reflect the recent Census Bureau changes.

Why Does the State Median Income Matter in Bankruptcy?

The median income amounts for each state play an important role in bankruptcy – they determine whether a person filing for Chapter 7 bankruptcy has to pass the means test, or not.  The means test looks at your income and expenses and determines if you can repay a certain amount to your creditors. If you can, you cannot file for Chapter 7 bankruptcy and instead must file for Chapter 13. (Learn more about how the bankruptcy means test works.)

However, if your income is lower than the median income for your family size in your state, you don’t have to take the means test at all – you automatically qualify for Chapter 7 bankruptcy (assuming you meet other Chapter 7 eligibility criteria).

The Median Income Chart for Bankruptcy

On the U.S. Trustee’s website, you can find a chart listing the median incomes in each state for individuals, families of two, families of three,  and families of four (if your family is large than four, you simply add another $8,100 per person to the 4-person figure). Use the figure that corresponds to your family size.

If you file for bankruptcy on or after November 1, 2014, you will use the figures based on the new Census Bureau statistics.  You can find those numbers here:  http://www.justice.gov/ust/eo/bapcpa/20141101/bci_data/median_income_table.htm.

Will I Lose Everything I Bought With Credit Cards If I File for Bankruptcy?

bankruptASK LEON 

Bankruptcy expert Leon Bayer answers real-life questions.

Dear Leon, 

I am getting ready to file bankruptcy. What happens to all the stuff I bought using my credit cards? Every single thing I own was bought during the past ten years using credit cards and department store cards. I mean, the shirt on my back down to the socks on my feet, to this computer, the tires on my car, the bed I sleep in, and the desk and chair I’m sitting in. Does all of it get taken away? 

I have this silly cartoon image of myself left standing in a barrel because everything, including my clothes, gets taken away when I get to court.   

Yours truly, 

Larry

Larry, My Good Man,

I have awesome news for you. There is a hardware store close to the bankruptcy court and they’re having a big sale on barrels. On your way to court, buy the one you like. But don’t pay with a credit card.

Seriously, the image of people walking out of bankruptcy court wearing barrels is something we won’t ever see. In most cases you don’t have to give up the things you bought on credit. Although there are some exceptions.

Credit Card Security Agreements

When you “buy” something with a credit card, when do you actually own it? It all depends on whether or not the credit card agreement contains a “security agreement.”

A security agreement is the same thing you have when you get a car loan. Your debt is “secured” by the item you owe the money for. The item you buy serves as collateral for the debt (it’s as if legal title on the item is being held hostage until you finish paying for the item). If you don’t pay as agreed, the creditor can repossess the item because you don’t yet own it.

To see what you might have to give up, you need to check your credit card contracts for security agreements. Here’s what’s typical:

  • Major credit card issuer. Ordinarily, there won’t be a security agreement if the lender is a major credit card issuer like Visa, Mastercard, or American Express.
  • Store cards. Usually, there will be a security agreement if the lender is a department store, like Best Buy or Macy’s, or a jewelry store.

What Happens to Items Subject to a Security Agreement?

When you file bankruptcy, the creditors with security interests are entitled to either get paid or get the property back. But often you can keep the property, for several reasons.

  • You can usually negotiate very good settlement terms on personal property items that you still want to keep. (Learn more in Reaffirming Secured Debt in Chapter 7 Bankruptcy and Redeeming Property in Chapter 7 Bankruptcy.)
  • Creditors rarely repossess items that are old or obsolete.
  • Department stores typically exercise their security interest only against major purchases, what they call “white goods,” like washers and refrigerators. (In the old days, major appliances came in any color you wanted, so long as you only wanted white.) Department stores are not interested in taking back your clothing, mattresses, and inexpensive items like video games and dvds, which are called “soft goods.”

For practical information on negotiating a good deal on property you want to keep in bankruptcy, see Tips for Getting a Great Reaffirmation Agreement in Bankruptcy.

When Do You Own an Item You Charged?

When you make a payment towards your department store account, the store credits the payment against the oldest unpaid balance. When you have paid off the oldest item, you own it. The store then applies your next payments to the next oldest balance, and so on.

Items you charged on your major credit cards belong to you, not the store, because the major credit card bank has already paid the store for you. Your major credit card debts will normally be discharged in bankruptcy, and all the stuff like ordinary appliances, furniture, barrels, and clothing will be your “exempt” property.

Losing Nonexempt Property That You Charged on Your Credit Card

Even if you own an item, however, you might still lose it in bankruptcy. If the item is not “exempt,” the bankruptcy trustee in a Chapter 7 bankruptcy can sell the property and use the proceeds to repay your creditors. Most everyday items (like clothing, furniture, and the like) will be exempt. But if you have expensive jewelry or something else that is not exempt through your state laws, you may have to give it up. (Learn more about how bankruptcy exemptions work.)

-Leon

Leon Bayer is a Los Angeles bankruptcy attorney.  He is a partner at Bayer, Wishman & Leotta, a California law firm specializing in bankruptcy.  The opinions and advice in this blog post are from Mr. Bayer alone, and should not be attributed to Nolo.  By answering a question on this blog, Mr. Bayer does not become your lawyer.

Find Leon on Google+

Help! I Got Notice That an Old Judgment Has Been Renewed

gavel over money istockASK LEON 

Bankruptcy expert Leon Bayer answers real-life questions.

Dear Leon, 

About five years ago I moved to Nebraska from California. I just got a notice in the mail that a judgment obtained against me about 20 years ago has been renewed. It previously got renewed ten years ago. The amount now due is almost $10,000. I incurred this debt almost 20 years ago when I was 19 and have been ignoring it all these years. I just bought a house and don’t want this messing up my credit. How did the creditor find me? I spoke to a Nebraska lawyer who told me I will need a California lawyer to handle this. 

What can I do? 

Yours truly, 

Joanne

Dear Joanne,

California law provides that a judgment is enforceable for ten years. Before it expires, the plaintiff can renew it for another ten years. And then before that ten years expires, the plaintiff can renew the judgment again, for another ten years.

I assume the notice that was mailed to you came from the plaintiff. The fact that you recently bought a house might explain how the plaintiff found you.

How the Creditor Can Collect the Judgment

You can’t go into court to “fight” the judgment. It is too late for that. The judgment is valid proof that you owe the money. I expect the plaintiff (also called the judgment creditor or judgment holder) will file its judgment in the Nebraska court to obtain a “sister state judgment.” That will allow it to enforce the judgment against you in Nebraska. Enforcement may include a wage garnishment, seizure of bank accounts, and placing a lien on your house. (Learn more about the ways that judgment creditors can collect against you.)

Options for Dealing With Old Judgments

Your options are quite limited.

Attack the Judgment Creditor’s Standing

You might try to attack the judgment holder’s standing to enforce the judgment by demanding proof that it is the rightful owner of the judgment. Debt paper is bought and sold all the time. I would not be surprised if this debt has not already been sold many times over. Often the paperwork to prove the rightful ownership of the debt is inadequate or nonexistent.

However, the legal fees you would incur to do something like that may be a waste of good money. The court may rule that your time to attack the judgment’s ownership has already expired. Or, if you are allowed to make what we call a “collateral attack” on the judgment, the court might find that the plaintiff’s proof of ownership is beyond dispute.

Negotiate a Settlement

Your strategy to ignore this and refuse payment has been very successful for almost 20 years. That is, until now. If this is your only debt problem, your other option is to negotiate a settlement. Often these things can be settled for a lump sum payment of 50% or less. (Get strategies for negotiating with creditors.)

File for Bankruptcy

But if you have other troublesome debts, go and see a local bankruptcy lawyer for advice.

-Leon

Leon Bayer is a Los Angeles bankruptcy attorney.  He is a partner at Bayer, Wishman & Leotta, a California law firm specializing in bankruptcy.  The opinions and advice in this blog post are from Mr. Bayer alone, and should not be attributed to Nolo.  By answering a question on this blog, Mr. Bayer does not become your lawyer.

Find Leon on Google+

Forgive us our debts…and give us discounted lawyer fees, too.

ASK LEON 

Bankruptcy expert Leon Bayer answers real-life questions.

Dear Leon,

I want to file bankruptcy. My case is simple. I’m in my 20’s, I make next to nothing, and I own next to nothing. My debts are less than $15,000 on mostly old credit cards that I got when I was young and stupid. I can’t afford a lawyer. What are the odds of a successful bankruptcy if I file on my own without a lawyer?

Matthew

Dear Matthew,

You can file on your own and may very well get a discharge. But before you go this route, you should carefully consider a few things:

  • You might make a mistake in your case that will affect your bottom line. Worse, you might not find out about the mistake until years later.
  • You probably can afford a lawyer.

Bankruptcy Mistakes That Haunt You Later

If you represent yourself and get a discharge, you may think you’ve been successful. A successful bankruptcy case means: you discharged all of the debts that you were allowed to get rid of in bankruptcy, you kept all of the assets that you were allowed to keep, and creditors are no longer popping up to bother you. (Learn more about what the bankruptcy discharge is.)

Unfortunately, I hear from lots of people who completed a bankruptcy on their own, but then later had problems that related back to the old case, such as:

  • debt collectors pounding them to collect on an old debt that they forgot to list in the bankruptcy (learn more about what happens if you forget to list a debt in bankruptcy), or
  • courts throwing out a car accident case because they failed to list the case correctly in the bankruptcy.

Getting a lawyer can also help if you need credit in the future. An experienced lawyer can usually point out some strategies that will help you get new credit without waiting ten years for the bankruptcy to drop off your credit report.

How to Get a Lawyer to Discount the Fees

Here’s your real concern: You want a lawyer but you think you can’t afford one. This means you are in the same boat as most bankruptcy clients.

Here’s how to get a lawyer that you can afford. And I mean a quality, top-notch, experienced bankruptcy lawyer.

First, figure out what you think is a reasonable lawyer fee based on your personal finances. Whatever that amount is, put it in your pocket, and go see some bankruptcy lawyers for a free consultation. (Read Nolo’s tips on finding a bankruptcy attorney.) Don’t do this over the phone — lawyers don’t want to spend time on the phone with shoppers. You’ve got to do it in person.

During the consultation, the lawyer will quote you a fee. Then, tell the lawyer what you can afford. Be humble. Grovel a little bit. Tell the lawyer you are truly sorry that you can’t pay more, and that you know the lawyer is worth every bit of the quoted fee. But, as the lawyer can see, you are truly dead broke. Tell the lawyer that if the fee you can afford is agreeable, you are ready to pay it right now. If your case is as simple as you think it is, most lawyers will agree to your suggested fee.

-Leon

Leon Bayer is a Los Angeles bankruptcy attorney.  He is a partner at Bayer, Wishman & Leotta, a California law firm specializing in bankruptcy.  The opinions and advice in this blog post are from Mr. Bayer alone, and should not be attributed to Nolo.  By answering a question on this blog, Mr. Bayer does not become your lawyer.

Find Leon on Google+

 

 

Fake Arrest Warrant for Unpaid Debt

Arrest_WarrantASK LEON 

Bankruptcy expert Leon Bayer answers real-life questions.

Dear Leon:

I just received an arrest warrant for an unpaid debt. I had no idea I could be arrested for something like this.  I am scared. What should I do?

Here is a copy of what I received. (View the arrest warrant here. There are two pages.)

Dear Lynn:

No, you cannot be arrested if you don’t pay a debt.  The arrest warrant you received is a fake. By using this scare tactic, the debt collector has violated federal and state law.

Can I Be Arrested for Not Paying a Debt?

If you simply default on a debt, you cannot be arrested. The creditor can call you, send you letters, or sue you (as long as it stays within the bounds of the law when it does so), but it cannot have you arrested.

There is one caveat. If you fail to follow a court order, the court can send you to jail. If that court order relates to an unpaid debt, it might feel like you are being sent to jail for failure to pay a debt.  (To learn how this happens, see The New Bill Collector Tactic: Jail Time.) This is a disturbing trend, but not one that applies in your situation.

The Warrant Is a Fake

If it weren’t so egregious, the “warrant” would be laughable.  It’s full of weird language and grammatical errors. Not the type of document you’d get from a real federal court. Plus, it’s full of inconsistencies – for example, Ronnie is from the “State Attorney Office” (there is no such thing) and yet the arrest warrant is from a federal court.

In any event, neither the state nor the federal government would be “pressing charges” against you (or arresting you) for nonpayment of a debt.

State and Federal Fair Debt Collection Laws

The federal Fair Debt Collection Practices Act prohibits debt collectors from using false representations to get you to pay a debt. (Many states have fair debt collection practices acts as well.) The arrest warrant that you received is pretty egregious in its false representations:

  • it pretends to be an arrest warrant from a federal district court
  • it says that the charges are “violation of federal banking regulation” – not paying a debt is not a violation of a federal banking regulation
  • Ronnie Willson is impersonating an employee of the State Attorney’s Office
  • the warrant has a fake judge’s “signature”
  • the warrant implies that if you don’t pay the debt, you will face ten years in prison and a fine of up to $50,000

By the way, apparently you aren’t the only one to get an arrest warrant from Ronnie.  See:

My advice to you?  Ignore it.

Leon Bayer is a Los Angeles bankruptcy attorney.  He is a partner at Bayer, Wishman & Leotta, a California law firm specializing in bankruptcy.  The opinions and advice in this blog post are from Mr. Bayer alone, and should not be attributed to Nolo.  By answering a question on this blog, Mr. Bayer does not become your lawyer.

Find Leon on Google+

Nasty Phone Call From IRS Auditor: Could It Be a Hoax?

Consumer Complaint iStock_000004051547XSmallASK LEON 

Bankruptcy expert Leon Bayer answers real-life questions.

Dear Leon, 

I received the same threatening message three separate times on my home answering machine. The voice is strongly accented, loud, threatening, cruel, harsh, nasty, condemning, harassing, and then oddly, at the very end, almost kind and pleasant. 

Here is the transcription – the punctuation is mine: 

“Hi this is Melwyn Thatcher (name unclear due to accent) calling from the tax audit department of the Internal Revenue Service. The nature behind this voicemail is to make you aware about a situation. We have received a legal petition notice against your name concerning an illegal tax evasion, a tax fraud. Be aware that we are taking the matter to the federal (unclear word) courthouse and we’re about to issue a warrant for your arrest. But before we go ahead and do anything like that, if you need any further details relating to this case you can call us back on our call back number 888-393-2421. I repeat 888-393-2421. Again this is Melwyn. You have a great day here. Thank you very much.”

By the way, I do not owe the IRS any money. In fact, I am totally debt free. Is this a hoax, or something I should be worried about? 

Very truly yours, 

Anita

Dear Anita,

Should you be worried? Absolutely not.

I am so glad you didn’t return the phone call. If you had, THAT would be worrisome.

I have no doubt that many serious crimes are involved in the transmission of that message. You and probably thousands of other people are the intended victims of an outrageous consumer fraud scam. In fact, see IRS warns of pervasive phone scam.

Many of these fraudsters operate out of telephone boiler rooms in Eastern Europe and Southern Asia. Some are members of criminal gangs, others are funneling the money to fund international terrorism.

If you were to reply to this type of message, you would be badgered to pay a fictitious debt. Even if you refused to pay anything, the fraudster might still trick you into providing personal financial information and then later use this information to steal your identity. (Learn how to avoid identity theft.)

Some people do fall for these types of scam phone calls. Perhaps they have a guilty conscience about unfiled tax returns, or an old bank debt they assume has prompted the call.

You will probably receive more calls from this outfit.  Like all telemarketers, they are working their phone list. The bottom line is this:  Don’t call them back. If you answer when they call you, just hang up.

The Federal Trade Commission also recommends that you report the call to them using the FTC Complaint Assistant at www.FTC.gov. (Add “IRS Telephone Scam” to the comments of your complaint.)

-Leon

Leon Bayer is a Los Angeles bankruptcy attorney.  He is a partner at Bayer, Wishman & Leotta, a California law firm specializing in bankruptcy.  The opinions and advice in this blog post are from Mr. Bayer alone, and should not be attributed to Nolo.  By answering a question on this blog, Mr. Bayer does not become your lawyer.

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