All posts by Chris Buckley

Know Your Rights about Consumer Debt and Collection Agencies

Are you being contacted by collection agencies, constantly harassing you about paying old debts?  Are you being hauled into court and being served with summons on a regular basis?

I wanted to write this article to help debtors understand that they have recourse against their creditors.  I constantly encounter people who are in debt and are frustrated by the humiliating process many firms and agencies use to collect their debts.  Often times, the person (or sometimes machine) on the other end of the line is not even the original creditor who signed the agreement in the first place.

Debts are bought and sold like commodities on the free market.  Often, debts are sold a dozen or so times commonly at a small fraction of what the debt is worth.  Many firms (law firms and collection agencies) will acquire literally hundreds of thousands of debts owed to third parties for pennies on the dollar.  The idea is–that most debts will be uncollectable and written off.  These firms will break even if they collect even a single percent (1%) of the total monies owed.  Any funds received over and above this is pure profit for the debt collection agency or law firm.  These debts are most often bundled and sold as a package; in other words, the better debts are put together with less desirable accounts in order to make a deal.

These law firms and debt collection agencies were so out of control with these practices, that in 2006 Congress passed the Fair Debt Collection Practices Act (“FDCPA”) 15 U.S.C. 1692 et. seq. The act is very expansive and lengthy, but I can boil down a few common violations that I find by collection agencies.  The most common is the requirement that collection agencies  send a letter not less than thirty (30) days before initiating a lawsuit explaining the details of the alleged debt, and allow the alleged debtor an opportunity to dispute it.  If the collection agency fails to perform this duty, the Act provides a cause of action by the debtor against the creditor for economic and special damages, i.e. attorney fees, of up to $1,000.00 for each violation.

In addition, Indiana law has a requirement to provide a signed writing at the time of initiating a lawsuit, which includes a signed writing for each agency in the chain of ownership of the debt to the current owner of the debt.  In my experience, very few agencies can produce these required writings.  A failure to provide the writings upon the objection of the debtor results in a dismissal of the action.

What I have encountered in these situations is that most agencies will stipulate to a dismissal upon filing the proper objections and motions.  The agencies themselves cannot afford to do the research or provide the documentation, or file the proper rebuttals to each and every debt in their overwhelming portfolio.  So, what results is that the creditor agency or law firm will agree to dispose of the claim.  Once the claim is disposed of, the debtor can use those court documents to clean up his or her credit rating with the various credit reporting agencies.

If you have a debt collection agency or law firm contacting you on a regular basis, SFT Lawyers can help.  We are experienced in the egregious practices of debt collection agencies, and we can stand up and fight for debtors’ rights.  Call (219) 841-5683 or fill out our Contact Us page to find an attorney to protect your rights.

VU Law Clinic Now Accepting New Cases for Free Legal Representation

The Law Clinic at Valparaiso University Law School is now accepting new cases at their Law Clinic.  (See NWI Times News Article, “Free legal help offered by VU Law School” 15 Oct. 2011.)  Valparaiso University law students provide free legal representation to individuals with limited income.  The Law Clinic can handle matters such as debt collection defense, consumer issues, landlord/tenant disputes, guardianships, adoptions, and tax concerns.  The Valparaiso Law Clinic has been offering this service since 1965 and assisted 700 people last year.  To see if you qualify for this service, contact the Law Clinic at 219-465-7903.

 

 

Attorneys General Seek to Put the Squeeze on Banks and Foreclosure Nationwide

What is referred to as “The Economy” is  a set of vast, complex systems that work together to demonstrate the financial pulse of a geographic area, a state, or a nation.  It can be measured in a variety of ways, and occasionally can lead to confusing contradictions.  This is not the case in our current state, however.  Opinions are mixed as to whether we are in a “double dip recession” or whether we are experiencing gradual growth.  As uncertain as the future may be, we can all agree that the times aren’t good when it comes to jobs and the family’s checkbook.

It is well understood now that the controversy surrounding mortgages and irresponsible lending is responsible for the artificial rise (and subsequent burst) of the real estate market.  As it stands today, many houses have been on the market for in excess of twelve (12) to eighteen (18) months, and are selling at twenty to fifty percent (20-50%) below asking price.  Many houses are reduced two (2) or three (3) times before selling-that is–if they sell at all.  Families’ plans are often held up or thwarted altogether due to this frozen market.

As well, many are losing their homes (some have projected up to one third of all home ownership) to foreclosure, putting direct excessive downward pressure on the real estate market.  Banks are foreclosing at record rates, and for good reason.  Because these interests are nearly always insured, banks stand to gain a significant profit–greater than the profit if the homeowner paid for the full term of the loan.

To accomplish this, banks are using “robo-signing” to push foreclosures through the court system.  (See CBS News Article, ‘Robo-signing’ of Mortgages Still a Problem” 18 July 2011.)  Banks are foreclosing at such a rate that they cannot physically sign the necessary documents themselves with human hands.  In fact, the larger banks are signing what are called “affidavits of debt” using robotic means in the Porter County courts and Lake County courts.

Before the mortgage crisis began, traditionally banks would work with homeowners to find a mutually agreeable resolution to get mortgages back on track for homeowners in difficult situations.  For the reasons above, however, banks are refusing to do this, opting instead to skip the mediation phase altogether and obstinately refusing to negotiate any terms of existing mortgages.

However, some state attorneys general are fighting back.

MSNBC, \”Morning Joe\” – \”Delaware Attorney General Goes After Banks over Mortgages\”

According to a piece aired on MSNBC’s “Morning Joe” this morning, attorneys general across the United States are teaming up to make mediating home foreclosures a necessary step before pursuing litigation.  This would require authorized bank representatives with authority to renegotiate mortgage terms to personally appear in court for each and every foreclosure filed.  If they are successful in their respective states, these attorneys general could plug one major hole in our leaking economy.

I personally applaud these courageous attorneys general in their efforts to thwart banks’ greedy attempts to make excessive profits on the backs of helpless and struggling homeowners.  I would persuade taxpayers to contact Indiana Attorney General Greg Zoeller‘s office and persuade him to join in this effort.  If you have a mortgage in foreclosure in Lake, Porter, or LaPorte Counties in Indiana, give one of our foreclosure defense attorneys at SFT Lawyers a call or use our Contact Us page to get some help.  We know the law, and we know how to stop banks from erroneously foreclosing on your home.

Porter County Assessor Lauches Online Property Tax Appeals

One of SFT Lawyers‘ largest clients, the Porter County Assessor Jon M. Snyder, recently announced that he would be taking the Porter County Assessor’s office into the 21st Century by allowing taxpayers to file property tax appeals online.  (See Post Tribune article, “Porter County Website Gives Taxpayers Option to Appeal Online” 4 Oct. 2011; Northwest Indiana Times article, “Online Assessment Appeals to Begin Friday” 4 Oct. 2011.

In a bold move that capitalizes upon Jon Snyder’s campaign promises to the taxpayers of Porter County, online property tax appeals will revolutionize the way business is done in Porter County Government.   The Porter County Assessor, Jon M. Snyder, was the first of ninety two (92) counties in Indiana to officially construct and publicly offer such an innovative option.  Online appeals will save the taxpayers burdensome trips to the government center, not to mention that it may prove to reduce the expense of processing appeals, but that is to be determined in the months and years ahead.

For the project, Mr. Snyder was able to retain one of the Region’s great IT powerhouses, Golden Technologies, Inc. to complete the project, and it was done to a high caliber in a very short time and at a minimal cost to the taxpayers.  Although a far cry from the eGovernment that local governments have been striving for, this online option to file property tax appeals is bringing government one step closer to the people it governs.

Indiana Supreme Court Affirms, “No Right to Resist Unlawful Entry by Police”

It is no surprise that in a moot exercise in futility, the Indiana Supreme Court affirmed its own controversial determination in Barnes v. State from earlier this summer.  (See Indiana Supreme Court Errs Heavily in Favor of Law Enforcement this Week in a Pair of Surprising Decisions, Indiana General Assembly Takes Quick Action to Amend Court’s Bad Decision, Police: “Rest Assured, Rulings Will Have No Effect”)

The court, after a futile rehearing, reached the same determination it reached back in May.  (See Northwest Indiana Times article, “Indiana Supreme Court rejects claim of right to resist police entry into home” 21 Sept 2011).

Abolishing a well established defense known as the “Castle Doctrine”, the Court determined that, “a man’s home is his castle” is no longer sacred.  Our Forefathers must be spinning in their graves.

In response to the expected decision, Indiana Attorney General Greg Zoeller said, “The Indiana Supreme Court’s ruling today means that individuals still have the common law right of reasonable resistance to an unlawful entry, though there is never justification for committing battery against a police officer.”

Well aside from directly contradicting his first statement in reaction to the original hearing, Zoeller’s comment makes absolutely no sense.  Let’s break it down for a moment.

As a criminal defense attorney in Northwest Indiana, I am all too familiar with this particular issue.  From my own experience defending criminal actions, most “Battery on a Police Officer” charges stem from wholly egregious acts such as “brushing up against an officer’s uniform or clothing,” “accidentally stumbling into,” or “touching” an officer.  (These were actual excerpts taken from actual probable cause affidavits in actual cases in Northwest Indiana.)

So, Mr. Zoeller, your statement sounds wonderful.  The Castle Doctrine is well intact, and our police officers are safe when making home entries–even illegal ones.  We must live in a land of rainbows and unicorns.

The reality of this quandary is, what does “reasonably resist” mean if in the real world “touching” or “brushing up against an officer’s uniform” constitute batteries upon a police officer?  So, I guess Mr. Zoeller is right: you CAN reasonably resist so long as you don’t “touch” or “brush up against” the police officer conducting the unlawful entry.  Sounds reasonable to me…

New Statute Opens Question of Expungement of Criminal Records in Indiana

A new statute has arisen in Indiana that at least opens the door to limiting access to criminal records of some criminal defendants.  Indiana Code Section 35-38-5-5.5 outlines a brand new procedure (effective July 1, 2011) that allows for restricting access to noncriminal-justice agencies under particular circumstances.

Up to this point, expungement of one’s criminal record in Indiana was next to impossible.  Before the creation of the new Code Section, the sole relief from one’s permanent record was found at Indiana Code Section 35-38-5-1, which reads:

IC 35-38-5-1
Petition; grounds; verification; filing; contents; service; notice of opposition; hearing
 Sec. 1. (a) Whenever:
(1) an individual is arrested but no criminal charges are filed against the individual; or
(2) all criminal charges filed against an individual are dropped because:
(A) of a mistaken identity;
(B) no offense was in fact committed; or
(C) there was an absence of probable cause;
the individual may petition the court for expungement of the records related to the arrest.

Basically, this was a moot point for most offenders.  Let’s take a moment to examine each of the three possibilities for expungement under the old regime.  First, one’s record could be expunged where an individual was arrested but no criminal charges were filed.  Perhaps this happens from time to time, but in my few years as a Porter County Indiana criminal lawyer I have not encountered this.  Let me assure you of one thing: when law enforcement places you in handcuffs, they have found or will find something to charge you with, one way or another.  Police don’t go about arresting and detaining random persons.  If they do, they eventually find violations to charge the detainee with.

Second, if charges are filed and subsequently dropped, someone within the law enforcement community made a material mistake.  Again, whatever attitudes may exist about police officers and law enforcement agencies, they are professionals, and this type of action is not common, to say the least.  Again here, the filing and later dropping of charges against an individual have not occurred in my, albeit relatively brief, criminal law experience.

The new Statute reads as follows:

IC 35-38-5-5.5
Restricted disclosure of arrest records; petition; hearing
 Sec. 5.5. (a) If a person charged with a crime:
(1) is not prosecuted or if charges against the person are dismissed;
(2) is acquitted of all criminal charges; or
(3) is convicted of the crime and the conviction is subsequently vacated;
the person may petition a court to restrict disclosure of the records related to the arrest to a noncriminal justice organization or an individual.
(b) A petition under subsection (a) must be verified and filed in:
(1) the court in which the charges against the person were filed, for a person described in subsection (a)(1); or
(2) the court in which the trial was held, for a person described in subsection (a)(2) or (a)(3).
(c) A petition under subsection (a) must be filed not earlier than:
(1) if the person is acquitted, thirty (30) days after the person is acquitted;
(2) if the person’s conviction is vacated, three hundred sixty-five (365) days after:
(A) the order vacating the person’s conviction is final, if there is no appeal or the appeal is terminated before entry of an opinion or memorandum decision; or
(B) the opinion or memorandum decision vacating the person’s conviction is certified; or
(3) if the person is not prosecuted, thirty (30) days after charges are dismissed, if the charges are not refiled.
(d) A petition under subsection (a) must set forth:
(1) the date of the arrest;
(2) the charge;
(3) the date charges were dismissed, if applicable;
(4) the date of conviction or acquittal, if applicable;

(5) the date the conviction was vacated, if applicable;
(6) the basis on which the conviction was vacated, if applicable;
(7) the law enforcement agency employing the arresting officer;
(8) any other known identifying information, such as the name of the arresting officer, case number, or court cause number;
(9) the date of the petitioner’s birth; and
(10) the petitioner’s Social Security number.
(e) A copy of a petition under subsection (a) shall be served on the prosecuting attorney and the state central repository for records.
(f) If the prosecuting attorney wishes to oppose a petition under subsection (a), the prosecuting attorney shall, not later than thirty (30) days after the petition is filed, file a notice of opposition with the court setting forth reasons for opposing the petition. The prosecuting attorney shall attach to the notice of opposition a certified copy of any documentary evidence showing that the petitioner is not entitled to relief. A copy of the notice of opposition and copies of any documentary evidence shall be served on the petitioner in accordance with the Indiana Rules of Trial Procedure. The court may:
(1) summarily grant the petition;
(2) set the matter for hearing; or
(3) summarily deny the petition, if the court determines that:
(A) the petition is insufficient; or
(B) based on documentary evidence submitted by the prosecuting attorney, the petitioner is not entitled to have access to the petitioner’s arrest records restricted.
(g) If a notice of opposition is filed under subsection (f) and the court does not summarily grant or summarily deny the petition, the court shall set the matter for a hearing.
(h) After a hearing is held under subsection (g), the court shall grant the petition filed under subsection (a), unless the petitioner is being reprosecuted on charges related to the original conviction.
(i) If the court grants a petition filed under subsection (a), the court shall order the state police department not to disclose or permit disclosure of the petitioner’s limited criminal history information to a noncriminal justice organization or an individual under IC 10-13-3-27.
As added by P.L.194-2011, SEC.1.

The key difference here is the word “vacated”, which was not included in the previous Statute.  What this most likely means is that now criminal defense attorneys have the ability to negotiate an agreed-upon vacated date into plea agreements, and have access to such arrests and convictions restricted to law enforcement-related agencies only.

Another key change is that the new Statute seems to suggest that deferral agreements and pretrial diversion agreements could potentially lead to access to such access being restricted.

The new Statute also seems to suggest that while it limits access to noncriminal-justice disclosure, it falls short of expungement as common people think of it.  It leaves open many implications about particular legitimate interests (e.g. safety) that some employers may have, but it seems to say that  all persons outside the law enforcement and criminal justice communities would be prevented from access to such records, upon a justified petition.  If this is true, it is somewhat revolutionary in criminal law.

For example, think of a young person who has had a momentary youthful indiscretion in his past.  Let’s make it a drinking violation, such as minor consumption of alcohol or public intoxication.  In the bigger picture, these are very minor offenses.  But, they may prevent this young person from obtaining a job.  For instance, this young person has a 2-year degree in heating and refrigeration, and applies to become a technician at a local, small heating and air business.  According to the old Statute, the young person would not stand a chance because the small business owner would find these youthful indiscretions with a simple background check and not hire the young person based on increased insurance premiums to operate the company’s service vans.  Under the new Statute, the young person’s attorney could negotiate under the terms of the pretrial diversion agreement (which often come about in these types of cases) that noncriminal-justice agencies would not have access to such record(s) of related arrests and charges being filed.  Under the new Statute, it appears that this young person would receive a fresh start and gain the opportunity of proving his good moral character (and lack of negligence) to his new employer.

It is unclear how the courts will deal with the ambiguities created by this Statute.  As of the date of this Article, no citations to the new Statute had been made, which is quite common in this short time.  We at SFT Lawyers will keep you informed of any new changes or interpretations of this exciting development in the law.

 

Legalizing Marijuana in Indiana!?

According to a recent Northwest Indiana Times article, Indiana may be moving its agenda toward decriminalizing marijuana–or even legalizing it for home production.   See Northwest Indiana Times article, “Region state senator leads charge for reform of Indiana marijuana laws” 24 July 2011.

State Senator Karen Tallian (D-Portage) is proposing that Indiana loosen its marijuana laws–the toughest in the nation.  She touts that she is simply seeing “what people are willing to do.”

I agree with Karen in some respects; however, I would caution against any drastic or sweeping measure.  Indiana’s marijuana criminal laws are certainly outdated and antiquated, with this I would agree.  We have so many criminal defendants behind bars for the simple possession of marijuana, and that is costing Hoosiers an unreal amount of money, not to mention taking precious liberty away from these so called “criminals”. Also, socializing these so called “criminals” in the breeding ground of hardened, violent offenders often transitions mere marijuana users or dealers into more hardened criminals themselves.  Instead of rehabilitating these inmates, we’re actually super-criminalizing them–at quite a cost to the taxpayer.

Reducing sentencing guidelines is probably a good idea when it comes to marijuana.  The fiscal argument to reduce sentencing guidelines in terms of reducing the gross expense couldn’t come at a better time, in fact.

As for legalization, however, I don’t think the socially conservative Indiana electorate is ready for such a change.  In my estimation, Karen is far ahead of where her mainstream voters are on the issue.

Porter County Announces New Magistrate: Mary DeBoer

After a long and deliberative decision, the Porter County Council of Judges has chosen Mary DeBoer to replace Magistrate James Johnson in Porter Superior Court #1, under the supervision of Porter Superior Court Judge Roger Bradford.   See Northwest Indiana Times Article, “DeBoer hired as new Porter County magistrate,” 19 July 2011.

DeBoer hired as new Porter County magistrate

 

After the elimination of the Probate Commissioner position and consolidation of the duties with the two (2) county magistrates, Ms. DeBoer will handle a variety of cases, ranging from divorce to guardianship to probate.  Ms. DeBoer will be a welcome addition to the Porter County legal community and I look forward to hearing many cases in front of her.  Ms. DeBoer comes highly qualified and well recommended among the fourteen (14) competitive applicants who applied for the position.

SFT Lawyers wishes Ms. DeBoer a warm congratulations and much luck in her new position.

New Indiana Immigration Policy–Targets Immigrants, or the Fourth Amendment?

Just like in Barnes v. State, the law seems to favor “public safety” over intrusion into privacy, something our Forefathers warned heavily against.  This time, it isn’t the courts blazing the new trail, it’s the Indiana General Assembly: Northwest Indiana Times, “Judge Grills Indiana Attorney Over Immigration Law, 20 June 2011.

The Indiana General Assembly recently passed an Immigration Reform Bill, Indiana Senate Enrolled Act 590 (S.E.A. 590-2011) which brings about sweeping reforms similar to the controversial bill passed in Arizona two (2) short years ago.  Just like the Arizona Bill, law enforcement officers now have the authority to make a traffic stop, search, and arrest suspects they have “reasonable suspicion” to believe are in Indiana illegally.

What does it come down to?  Another “catch all” tool for law enforcement to use to stop whatever cars they wish to.  No longer do they have to look for burned out license plate lights or cracked tail light lenses or “swerving” or “left of center”.  There is a whole list of “reasonable suspicion” you will find in every probable cause affidavit issued by police, but these are almost always pretextual.  In other words, your license plate light may be in fact out, but that has nothing to do with why the officer actually wants to make the traffic stop.  With the new provision, “Driving While Brown” becomes a widespread offense, and it is difficult at best to know you are violating the law.  You might want to watch to make sure that summer tan doesn’t get too intense…a traffic stop, search, and possible arrest may result.

BUT–AGAIN–rest assured, law enforcement will not use this as a pretext to conduct otherwise illegal searches.  You can always trust law enforcement with the preservation of the Fourth Amendment…

Indiana General Assembly Takes Quick Action to Amend Court’s Bad Decision

At the request of Indiana State Senators like Ed Charbonneau, the Indiana General Assembly has decided to form a panel to consider legislation overturning or amending the recent decision in Barnes v. State.  This is atypical for the IGA to do on such short notice, and it is probably due to the controversy of public opinion spurred by the unpopular decision.

More than three hundred (300) people showed up in front of the Indiana Statehouse to protest the far-reaching decision.  Some are even concerned that the incentive for fraud is increased, and the security of police officers is in jeopardy as a result of the decision.

Too much cannot be said about this decision.  Two (2) out of three (3) branches of government–as well as a significant cross-section of Hoosiers–are diligently working to overturn, narrow, or limit the effects of its far reach.  James Madison spoke about what the various branches represent and limitations on their respective power in Federalist #51.  However, the only possible check on the judiciary is the appointment of the Supreme Court justices by the executive.

In Indiana this check is provided directly by “the people” through the election and retention process, respectively; however, throughout Indiana history these have not provided the significant “check” upon the judiciary that was intended.  (For an in-depth analysis, see recent Indiana Lawyer article, “Touched by Controversy”.)  Many justices have committed far more grave errors in judgment and created far more controversy than this decision, yet, not a single one has been ousted on retention.  This may be changing, however, due to a recent effort to reform the judicial nominating process in Indiana.

How do you think Indiana Supreme Court Justices should be selected?