All posts by Chris Buckley

Debt Collection Defense is a Way to Avoid Bankruptcy and Get out of Debt

Many people who face the constant stress of harassing phone calls, intimidating collection letters, and court summonses often feel overwhelmed that there is no way out of the constant debt struggle. Collections often result from some negative life changing event beyond the person’s control, whether that is the loss of a job, a divorce, or a death in the family. When faced with this extreme stress, many people turn to bankruptcy attorneys to file bankruptcy. This, however, is daunting for many people. Filing bankruptcy feels like defeat to many debtors, and can be a costly and frustrating endeavor.

What many debtors don’t know is that much can be done short of bankruptcy to give clients a fresh start. More than half of all debts are regularly bought and sold on the open market. In other words, your debt has likely been purchased (often for pennies on the dollar) by creditor after creditor in an attempt to collect the debt. Each time a new creditor purchases the debt, the creditor will aggressively attempt to contact the debtor and reach an agreed payment plan, usually for some agreed payment per week or per month. A majority of these debts are not collectable. Creditors purchase these collection files in large bundles, for a fraction of what the debts are worth, with the hopes of actually collecting on a small percentage of all the purchased debts.

When creditors purchase these debts, because they are in such high volume a vast majority of these debts have some documentation deficiency which may prevent or preclude the creditor from being able to collect the debt in court. Unless the validity of the debt is challenged by a debt collection defense attorney, many creditors will obtain default judgments against the debtor. In fact, approximately eighty percent (80%) or more of these debts will result in default judgments. (A default judgment is a judgment rendered against a debtor for his or her failure to appear in court.) Once a default judgment is obtained, the creditor will then move for contempt, body attachment (arrest for failure to appear) and garnishment of wages or bank accounts.

However, a debt collection defense attorney has many tools at his or her disposal to make the debt more difficult (and expensive) to collect. Many creditors do not want the added burden of fighting the debts in court, and will very often agree to dismiss them. Many creditors also know right away that they don’t possess the necessary documents to enforce the debt, and will quickly dismiss these cases to “cut their losses”. What creditors want is to be able to quickly and efficiently obtain default judgments and run masses of debtors effortlessly through the process and collect as much as possible without a single conflict.

As mentioned above, many of these debts have a variety of deficiencies. One of these deficiencies is that many unsecured creditors lack a signed writing proving that the debt in fact exists. Without this proof, a debt collection defense attorney can usually get this case dismissed. Similarly, each time a debt is bought and sold, it must have with it proof of the transfer of ownership of the debt. Again, lacking this proof (and this can be quite burdensome to the creditor) the creditor’s claim will often be dismissed. In addition, the Federal Debt Collection Practices Act (“FDCPA”) provides debtors relief from harassing creditors, and nearly all creditors violate this Act at some point in collecting nearly any debt. The FDCPA is very burdensome, and, to be honest, no debt collector could collect a debt in an efficient manner if it complied with every provision of the FDCPA.

Due to the volume, many debts are collected–not in courtrooms as one might think–but in the hallways of many courthouses throughout Indiana. Judges will simply pressure the parties to “go out into the hallway” to work out an agreed payment plan to repay the debt. Many debtors feel slighted by this process and feel that the fairness that is supposed to be administered by the court system is lost in this process. Crown Point Bankruptcy Attorney Christopher C. Hedges writes about a recent action taken by the Indiana Supreme Court to limit this process.

PLEASE NOTE: This is not to be confused with debt consolidation. Debt consolidation is often a scam–bureaus will accept debtors’ money in exchange for purportedly negotiating deals with the client’s creditors, resulting in a lump sum payment. This often looks worse on one’s credit than if the debtor was to remain in default on payments in the first place.

The experienced debt collection attorneys at SFT Lawyers can help. We are well versed in the FDCPA as well as Indiana law regarding the collection of debts. If you have substantial debts and are receiving harassing phone calls and letters from creditors, give us a call so that we can protect your rights. These matters are time sensitive; one day can mean the difference between a default judgment being entered against you or the debt disappearing forever! CALL TODAY!

New Indiana Law Expected to Allow Reduction of Class D Felonies

Do you have a Class D Felony conviction which is more than 3 years old? If so, your time as a “convicted felon” might soon be over!

The Indiana House recently passed House Bill 1033 which allows courts to convert Class D Felonies to Class A Misdemeanors after 3 years so long as the convicted person is not a sexual or violent offender and the Class D Felony offense did not result in bodily injury to another person.

The Bill has not completed the entire process to become a law yet, but most expect it will pass and become effective in July of this year. (Read how a bill becomes law in Indiana here.)

Indiana has traditionally been slow to forgive mistakes, but this is yet another sign that we are finally giving hard-working people a second chance. The attorneys at SFT Lawyers will monitor this story closely to make sure we give our clients every chance to start anew. If you have an old conviction, give us a call and we’ll be happy to discuss all of your options!

Indiana Senate Votes to Restrict Public Intoxication Law

At SFT Lawyers, LLP, our clients have expressed outrage for years over the inconsistent enforcement of public intoxication statutes. Far too many police departments seem to use the charge as a “catch-all” to arrest anybody who consumes alcohol. Indiana’s residents have seen enough and, now, so has the Indiana Senate.

On Monday, the Senate voted to restrict the charge to only those endangering their life, another person’s life, or breaching the peace (Read More Here from the NWI Times). The measure will now go before the House and move one step closer to becoming official.

The attorneys at SFT Lawyers, LLP will eagerly watch this developing story. In the meantime though, give us a call if you are the victim of over-aggressive enforcement of the current law and we will be happy to help. You can also use our handy Blood Alcohol Calculator to help plan ahead before you drink.

Divorce and the “One Pot Theory”

Many people undergoing divorce are often overwhelmed, and this is not surprising. Emotional issues as well as the financial uncertainty surrounding divorce can cause a great deal of stress for all involved–and especially children.

Dividing property can be quite emotional as well, and create a great deal of stress. Knowing how the court will look at the property division, however, may relieve some of this stress in simply knowing what will likely happen. Understanding the legal concept known as the “one pot theory” will help in guiding your decisions with regard to divorce and the property settlement.

The “one pot theory” is the presumption by the court that all property and monies received before and during the marriage are marital property. It is the law in Indiana, and is the presumption in most states. The reason for this presumption is for expediency and efficiency. If the court were to examine each and every piece of property to determine whether it should be considered marital property, it would be rather costly and time consuming for the parties involved. While this is the default way that a court will look at your marital estate, courts have broad discretion in including and dividing assets of the marital estate.

Obviously, courts will not include property covered by an antenuptial (“pre-nuptual”) agreement. These agreements are in consideration of marriage, and specifically exclude certain delineated property known at the time marriage is entered into. These agreements, however, cannot exclude property not yet known or foreseeable at the time of the marriage.

Absent an antenuptial agreement, the property will be presumed to be included in the marital estate, and the court will exercise a presumption of an even division of all property included in the marital estate. This is true where the parties cannot agree on a division of property, and where the court is forced to make the determination. Obviously, the court will honor agreements by the parties in nearly all cases, and it is usually beneficial for the parties to do so to avoid time-consuming and costly litigation.

There are exceptions to the “one pot theory”, but it is a longstanding legal doctrine the court will most often employ absent compelling circumstances to the contrary. If property division is an issue in your upcoming or potential divorce, you should hire legal counsel to protect it. The family law attorneys at SFT Lawyers can help.

Forgiving Old Indiana Convictions is Good for the Economy!

Employment rates nationwide have been a concern for years. In response, many states have taken action to help those who cannot find work. One such statute, Indiana’s “Second Chance Act,” has drawn fire from some since it was passed in July. This law is brand new, and many criminal defense lawyers do not yet understand the Statute and its many complicated provisions and implications. The criminal defense attorneys at SFT Lawyers, LLP are among the first lawyers to take the time to build a practice around this law, and we have been able to give well-deserved second chances to many deserving clients. Most citizens who express concern with the law are outraged that our legislators are focused on helping criminals instead of the good, hard-working people of Indiana. But that is simply not what this law is about.

The often used title,“Second Chance Act,” is actually somewhat misleading. This statute does not offer a freebie to everyone. In reality, it only gives a chance to people who made a mistake. It does not protect murderers, rapists, sex offenders, or violent criminals. It protects hard-working people who made one poor choice. It protects the person who made the poor decision to smoke marijuana 10 years ago. It protects the father of three who drove after drinking 20 years ago. It protects honest, hard-working people in Indiana who cannot find a job because they did something foolish years ago. When we seal the record of a non-violent, non-sexual offense a decade after the fact, it doesn’t truly give anyone a “second chance.” It only gives people an honest chance to succeed.

Here at SFT Lawyers, LLP we have attorneys who concentrate on these cases because we believe in them. If you have an old offense that you need to have sealed we would love to help you. Even if not, we always love to hear your comments.

Indiana Postpones Reform of Sentencing Guidelines

After a great deal of chatter, the Indiana General Assembly has decided it will not include in its agenda for 2012 a measure to reform Indiana’s dated sentencing guidelines. (See Post-Tribune Article, “Sentencing Guidelines Overhaul to Take Another Year” 14 January 2012). (See generally News and Tribune Article, “Daniels Urges Sentencing Reform 16 December 2010). Apparently the $1.2 Billion that the State must spend on new prison construction isn’t persuasive enough that we are putting too many offenders behind bars.

Sentencing guidelines instruct a judge with a range of possible penalties for certain crimes. In Indiana, crimes are broken down into A, B, C, and D Felonies, and A, B, and C Misdemeanors. Currently, the basic sentencing guidelines for crimes committed in Indiana are as follows:

Class A Felony – between twenty (20) and fifty (50) years incarceration; up to $10,000.00 fine. (Indiana may petition for the death penalty in murder cases involving Arson, Burglary, Kidnapping, Rape, Robbery, Carjacking, Criminal Gang Activity, or Dealing in Cocaine or a Narcotic drug, and under other limited circumstances.)
Class B Felony – between six (6) and twenty (20) years incarceration; up to $10,000.00 fine.
Class C Felony – between two (2) and eight (8) years incarceration; up to $10,000.00 fine.
Class D Felony – between six (6) months and (3) years incarceration; up to $10,000.00 fine.
Class A Misdemeanor – not more than one (1) year incarceration; up to $5,000.00 fine.
Class B Misdemeanor – not more than one hundred eighty (180) days incarceration; up to $1,000.00 fine.
Class C Misdemeanor – not more than sixty (60) days incarceration; up to $500.00 fine.

I.C. 35-50-2, et. seq.; I.C. 35-50-3 et. seq.

Although there are many exceptions to the maximum penalties under certain aggravating circumstances, judges generally employ the above guidelines to determine the appropriate sentence for persons convicted of crimes. In addition, the Statute encourages judges to use proscribed midpoints in the ranges as starting points in imposing sentences, but judges are not bound to do so. Often times (especially with the serious felonies) a judge may be bound by a plea agreement reached between the criminal defense attorney and the prosecutor, if s/he accepts it. In felony cases, the judge will normally take the plea under advisement until a pre-sentencing investigation (“PSI”) can be completed. A PSI is a detailed report of the defendant’s criminal history, family background, and aggravating and mitigating circumstances involving the particular offense. The judge will then use this in determining the appropriate sentence. If the judge accepts the plea taken under advisement s/he is bound to impose the sentence as agreed.

In my opinion, reform to Indiana’s sentencing guidelines is much overdue. Our prison population is growing at an alarming rate, and we are outpacing neighboring states in growing by a staggering forty percent (40%) in less than a decade. This is largely because from the 1970’s to present, the Indiana General Assembly has taken much of the discretion out of the hands of judges, declaring instead by statute the minimum sentence for particular crimes. Largely this is due to the contagious “tough on crime” persona adopted by many of our state legislators.

It is a shame that our legislators have imposed poor social policy based on merely the perception of potentially being labeled “weak on crime”. Not surprisingly, prosecutors all over the state protested the measure, saying it was far too soft on crime and that it would put offenders back on the streets. This is hardly the case, however.

The number of inmates housed who pose a significant threat to Hoosiers are in the slim minority among the prison population. We really need to focus our state resources on protecting society from this dangerous minority, while other inmates could greatly benefit from community-based programs such as drug abuse and anger management treatment programs instead. Incarceration is a large “hammer”, and unfortunately these statutes force judges to see very unique problems all as “nails”. Not all criminal behavior has the same cause or effect, and there is a great danger in categorizing broad categories of crimes together. In my experience, judges–although not infallible–are generally knowledgeable and fairly intelligent and wise in imposing sentences. I think we need to trust them to do their jobs, and leave them discretion to determine which offenders should spend time behind bars, and how long they spend there.

Seal Old Conviction Records So Employers Can’t See Them!

The job of criminal defense attorneys in Indiana has long been a frustrating one. Here at SFT Lawyers, LLP, we have seen far too many clients desperate to escape the lingering effects from a youthful mistake. Drug possession, DUI/OWI, and other fairly minor offenses have kept many upstanding citizens from finding employment. But now, that need not be the case.

Indiana now, more than ever, is finally giving its residents a chance at redemption. Under the “Second Chance Act”, records of old Misdemeanors and Class D felonies may qualify to be sealed so employers cannot see them. Records of arrests without a conviction can also be destroyed altogether. And we could not be happier to finally be able to help!

So if an old conviction is keeping you from your dream job, contact your hometown attorneys at SFT Lawyers and let us help you get back on the track to success!

Know Your Limit: Calculate Your Blood Alcohol Level Before it is Too Late!

Driving under the influence is a major problem throughout the country. Here at SFT Lawyers, LLP, we see far too many clients find themselves in this unfortunate situation. If you do ever need assistance against such a charge, we’re happy to help. But it’s much easier and safer for everyone if you can avoid facing that dilemma. Indiana’s OWI Statutes are stricter than many states, so planning ahead is crucial.

This calculator can be a useful tool to help you plan to consume in moderation. Though we cannot guarantee that any calculator will be right all the time, hopefully it will at least act as a general guide.

Disclaimer: No alcohol calculator is 100% accurate so the best we can provide is a rough estimate. Your actual BAC may vary depending on many factors. These factors include, but are not limited to, food or other substances recently ingested, your health, and your mental and physical condition.

Indiana Court of Appeals Protects Fourth Amendment Right Against Unreasonable Search and Seizure

In a recent ruling, the Indiana Court of Appeals has stood firm on the standard of reasonable suspicion. In Michael Woodson v. State of Indiana, 49A05-1106-CR-306, the Court established a clear standard for determining if, and when, reasonable suspicion is necessary and satisfied, respectively.

According to the well-established and well known doctrine of Terry v. Ohio, 392 U.S. 1 (1968) an officer may conduct a consensual “stop and frisk” questioning, where the officer may conduct a cursory search of the area strictly for the officer’s safety.

In the above case, Defendant Woodson was simply riding his bike in the gas station near Meridian and 38th Street–a known “hot zone” of criminal and drug activity–in Indianapolis, Indiana, near a “suspicious” maroon vehicle. Mr. Woodson, along with the nearby vehicle were detained near the gas station. It was unclear for what reason the vehicle and Mr. Woodson were detained, if any. Mr. Woodson did appear “loud” and “belligerent” toward the officer, but offered no clear threat to the officer’s safety. The officer then placed Mr. Woodson in handcuffs (allegedly in the interest of officer safety) and began asking him questions and proceeded to search Mr. Woodson’s backpack. In the backpack, the officer found a series of DVD’s in generic white sleeves, which were found to be bootlegged copies of movies then currently in theaters. Mr. Woodson was charged with two (2) counts of D Felony Fraud and was convicted.

The Indiana Court of Appeals reasoned that 1) the necessary elements for the consensual Terry “stop and frisk” were not met, and that 2) the officer lacked “reasonable suspicion” to conduct a search under the Fourth Amendment or the Indiana Constitution, Article 1, Section 11. According to the Court, “reasonable suspicion” requires, “some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. A mere ‘hunch’ is insufficient. [The officer must have a] particularized and objective basis for suspecting legal wrongdoing.”

Because the Court reasoned that the Officer violated Mr. Woodson’s Fourth Amendment and Article I, Section 11 Rights, the Court reversed the Trial Court’s order denying the suppression of the evidence. Because the offense(s) in question rested solely on the suppressed evidence, the Court reversed Mr. Woodson’s conviction in its entirety.

This opinion comes as a breath of fresh air. After all the Indiana Supreme Court has done to erode our Constitutional right against search and seizure, the Indiana Court of Appeals got one right.

Do you feel that your Fourth Amendment right against search and seizure has been violated? The criminal defense attorneys at SFT Lawyers can help!

Indiana’s “Second Chance Act” Can Provide Relief From Past Mistakes

Do you have an old Indiana conviction that you dread revealing to potential employers? Under Indiana’s new “Second Chance Act”, you may no longer have to tell anyone and employers may not be allowed to find out!

In an August article, we discussed how Indiana’s new expungement statute could help criminal defense attorneys plan ahead and negotiate for your conviction to be vacated. However, that doesn’t help those who have old convictions. The better news for those individuals is that a new “Second Chance Act” allows records of nonviolent, non-sexual misdemeanors and Class D felonies older than eight years to be hidden from all but criminal justice agencies.

IC 35-38-8-4 allows sealing of records so long as the following four conditions are met:

(1) the person is: (A) not a sex or violent offender; or (B) a sex or violent offender, but the offender’s status as a sex or violent offender is solely due to the offender’s conviction for sexual misconduct with a minor (IC 35-42-4-9) and the offender proved that the defense described in IC 35-42-4-9(e) applies to the offender;

(2) the person was: (A) convicted of a misdemeanor or a Class D felony that did not result in injury to a person; or (B) adjudicated a delinquent child for committing an offense that, if committed by an adult, would be a misdemeanor or Class D felony not resulting in injury to a person;

(3) eight (8) years have passed since the person completed the person’s sentence and satisfied any other obligation imposed on the person as part of the sentence; and

(4) the person has not been convicted of a felony since the person completed the person’s sentence and satisfied any other obligation imposed on the person as part of the sentence.

So if you meet these conditions, then a court can order the State Police to restrict access to your records from everyone but criminal justice agencies. The statute also allows you to legally deny that you have ever had such a conviction. Specifically: “If a court orders a person’s records to be restricted under this chapter, the person may legally state on an application for employment or any other document that the person has not been arrested for or convicted of the felony or misdemeanor recorded in the restricted records.” (From Section 7 of IC 35-38-8-4).

So if an old conviction is still haunting you then we at SFT Lawyers may be able to help!