Indiana's Anti-Blacklisting Statute - The 121 Year-old Law I Didn't Know Existed

While I was researching something else, I stumbled upon Indiana's Anti-Blacklisting Statute, Indiana Code 22-6-3-2 which states as follows:

§ 22-5-3-2. Railroads; damages; exemplary damages If any railway company or any other company, partnership, limited liability company, or corporation in this state shall authorize, allow or permit any of its or their agents to black-list any discharged employees, or attempt by words or writing, or any other means whatever, to prevent such discharged employee, or any employee who may have voluntarily left said company's service, from obtaining employment with any other person, or company, said company shall be liable to such employee in such sum as will fully compensate him, to which may be added exemplary damages.

The text of this statute suggests that, except in employment by sole owners, an employer may not attempt to prevent a former employee from gaining employment with any other employer.  Statutes like this are no doubt behind the practices of some firms asked for references to only provide dates of employment to those seeking references.  This statute provides for compensatory damages and "exemplary damages" - essentially another term for punitive damages.

Note that Section 1 of the same law provides immunity to employers who provide factual information including but not limited to the reason for the discharge unless the employer knows the information was false.  That section also gives the employee the right to receive a copy of any information provided to the enquiring potential employer.

(c)

Upon written request by the prospective employee, the prospective employer will provide copies of any written communications from current or former employers that may affect the employee's possibility of employment with the prospective employer. The request must be received by the prospective employer not later than thirty (30) days after the application for employment is made to the prospective employer.

I see nothing in this section that prevents an employee from requesting the information provided to prospective employers BEFORE the prospective employer makes the inquiry.

THE BOTTOM LINE is that if you are fired or quit a job, I suggest that you send your employer a letter demanding that you receive copies of correspodence that the company sends to prospective employers.  If you cite the anti-blacklisting statute, that might discourage the employer from badmouthing you or discouraging prospective employers from hiring you.

If you think you are being blacklisted, you can consider hiring an attorney. It is likely that you will have to pay out of pocket for this representation though, because it is unlikely that the attorney will be able to get a fee from the blacklisting employer even if a court action is brought successfully.

Have you been sued by Med-1 Solutions, LLC?

If you have been sued by Med-1 Solutions, LLC?  If you have, please contact my office for a no-charge case review.  We have some legal theories which we are exploring which are not yet fully formed. We are looking for cases to see if our theories are right.  Contact me through the website at www.hoferlawindy.com or call 317-662-4529.

Are you getting calls from Pioneer Credit Recovery?

Pioneer Credit Recovery, Inc. is a subsidiary of Navient, the student loan giant.  If you are getting auto-dialed calls to your cellphone, you should contact a NACA consumer lawyer in your area.  Here's a link to the NACA "find an attorney"page.

The Revived (partially) UAW Legal Services Benefit to Resume in January 2017

The Detroit Free Press is reporting that the much-delayed revival of the UAW Legal Services benefit will resume in January 2017.  I spent over 16 years with UAW Legal Services Plans, and I am glad the members will be getting back some legal services benefits.  The new benefit will be scaled back, only including the office work benefit and no litigation or court appearances.

According to this article, total annual funding for the plan will be about $12 million. That is somewhat higher than I initially was told, and that's a good thing.

Some Comments on Common Ethical Violations Committed by Scamming Debt Settlement Florida Attorneys

If you are scammed by a Florida attorney or law firm, here is a complaint form to file with the Florida Bar.  If you make a complaint, you should refer to at least one specific rule that the attorney has alleged to have broken. Here are the Florida Rules of Professional Conduct.  Sorry for the bad formatting. I only have limited time to write this.  

What allegations come into play?  Take a look at this one:  Rule 4-1.4 Communications.

RULE 4-1.4 COMMUNICATION (a) Informing Client of Status of Representation. A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Take a look at Rule 4-1.5 Fees

RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES (a) Illegal, Prohibited, or Clearly Excessive Fees and Costs. An attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar. A fee or cost is clearly excessive when: (1) after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee or the cost exceeds a reasonable fee or cost for services provided to such a degree as to constitute clear overreaching or an unconscionable demand by the attorney; or (2) the fee or cost is sought or secured by the attorney by means of intentional misrepresentation or fraud upon the client.

What I take from this is that any fee obtained by solicitation of telemarketers is an improper fee, period.  The fees that I have seen ordinarily would leave a lawyer of ordinary prudence a definite conviction that the fees are clear overreaching or unconscionable.  

Here's another one:  Rule 4.3 Meritorious claims.  

4-3. ADVOCATE RULE 4-3.1 MERITORIOUS CLAIMS AND CONTENTIONS A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. 

- The Florida debt relief firms (if they do anything) dispute in mass the debts on the client's credit report.  The attorneys have the duty to NOT dispute items that the client doesn't dispute in good faith.  From what I have observed, disputes that aren't undertaken in good faith rarely survive the slightest challenge. 

How about the lawyers duty to supervise nonlawyer assistants? 

RULE 4-5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS (a) Use of Titles by Nonlawyer Assistants. A person who uses the title of paralegal, legal assistant, or other similar term when offering or providing services to the public must work for or under the direction or supervision of a lawyer or law firm. (b) Supervisory Responsibility. With respect to a nonlawyer employed or retained by or associated with a lawyer or an authorized business entity as defined elsewhere in these Rules Regulating The Florida Bar: RRTFB – May 20, 2016 (1) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (2) a lawyer having direct supervisory authority over the nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (3) a lawyer is responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if the lawyer: (A) orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (B) is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (c) Ultimate Responsibility of Lawyer. Although paralegals or legal assistants may perform the duties delegated to them by the lawyer without the presence or active involvement of the lawyer, the lawyer must review and be responsible for the work product of the paralegals or legal assistants.  

In the "mill" debt relief firms, the "paralegals" often have no day-to-day contact with the attorneys at all.  

Here's another biggie,  Rule 4-5.5 Professional Independence of a lawyer.  Under this rule a lawyer may not share fees with a nonlawyer (with small exceptions) and the lawyer may not work for a for-profit firm that is owned even in part by a nonlawyer.   As far as I can tell, this rule is violated by every scam firm that I've seen.  When the "support" firm receives the money and pays the lawyer, this rule is violated.

RULE 4-5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER (a) Sharing Fees with Nonlawyers. A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to 1 or more specified persons; (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer; RRTFB – May 20, 2016 (3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, in accordance with the provisions of rule 4-1.17, pay to the estate or other legally authorized representative of that lawyer the agreed upon purchase price; (4) bonuses may be paid to nonlawyer employees for work performed, and may be based on their extraordinary efforts on a particular case or over a specified time period. Bonus payments shall not be based on cases or clients brought to the lawyer or law firm by the actions of the nonlawyer. A lawyer shall not provide a bonus payment that is calculated as a percentage of legal fees received by the lawyer or law firm; and (5) a lawyer may share court-awarded fees with a nonprofit, pro bono legal services organization that employed, retained, or recommended employment of the lawyer in the matter. (b) Qualified Pension Plans. A lawyer or law firm may include nonlawyer employees in a qualified pension, profit-sharing, or retirement plan, even though the lawyer's or law firm's contribution to the plan is based in whole or in part on a profit-sharing arrangement. (c) Partnership with Nonlawyer. A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (d) Exercise of Independent Professional Judgment. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. (e) Nonlawyer Ownership of Authorized Business Entity. A lawyer shall not practice with or in the form of a business entity authorized to practice law for a profit if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. Comment The provisions of this rule express traditional limitations on sharing fees. These limitations are to protect the lawyer's professional independence of judgment. Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client. As stated in subdivision (d), such arrangements should not interfere with the lawyer's professional judgment. This rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer's professional judgment in rendering legal services to another. See also rule RRTFB – May 20, 2016 4-1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer's independent professional judgment and the client gives informed consent). The prohibition against sharing legal fees with nonlawyer employees is not intended to prohibit profit-sharing arrangements that are part of a qualified pension, profit-sharing, or retirement plan. Compensation plans, as opposed to retirement plans, may not be based on legal fees.

Here's a tough one: Unlicensed Practice of Law.  What exactly constitutes the "practice of law" is frustratingly vague.  One thing we know from this rule though is that a lawyer who is admitted to practice in Florida but who represents a resident from another state must meet the ethical rules of the other state, and failure to meet those rules is a Florida violation too.  

(a) Practice of Law. A lawyer may not practice law in a jurisdiction other than the lawyer’s home state, in violation of the regulation of the legal profession in that jurisdiction, or in violation of the regulation of the legal profession in the lawyer’s home state or assist another in doing so.

Solicitation of clients Rule 4-4-18  - Very briefly the telemarketing arrangements are ethics violations. 

RULE 4-7.18 DIRECT CONTACT WITH PROSPECTIVE CLIENTS (a) Solicitation. Except as provided in subdivision (b) of this rule, a lawyer may not: (1) solicit, or permit employees or agents of the lawyer to solicit on the lawyer's behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules. (2) enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule.

Have you been receiving collection calls from Sallie Mae or Navient?

Have you been receiving telephone harassment calls from Sallie Mae, Navient, or collectors working for these companies? If you live in Indiana, call me at 317-662-4529, and I will give you instructions on how to minimize these calls, and if the harassment continues, how to maybe, just maybe receive damages under the Telephone Consumer Privacy Act (TCPA).

The Florida Debt Relief Attorney Scam

Recently I have become aware of a (relatively) new twist on an old scam. During the worst days of the mortgage crisis, there were lots of scam artists promising to help people avoid foreclosure of their under-water mortgages. One of the scams involved using actual practicing attorneys as a front for boiler-room telemarketers selling bogus foreclosure relief. Sometimes these attorneys knew they were being used, and sometimes they didn't.  Telemarketers would call, claiming to work for the attorney, giving the attorney's name, and they would promise that the attorney could defend against the mortgage company, getting homeowners out of a mortgage by making claims against the mortgage companies for mistakes made by the mortgage company.

The new scam is exactly the same as the attorney mortgage scam except the promises involve getting people out of debt generally, especially student loan debt.  Some of the players in the attorney debt relief scam are exactly the same as the attorney mortgage relief scam.

Most of these scam operators seem to come from Florida, often from Broward and Palm Beach counties, with the center in Boca Raton. In the 80s, this area was rife with two-bit penny stock dealers and ponzi schemes scamming people out of their money. It was so bad that the area got the nickname "maggot row" or the "maggot mile".  The Maggot Mile is alive and well in the field of debt relief scams.  How bad is it?  I did a Google search on "boca raton" "debt relief" and "scam", and over came up with over 64,000 hits on articles with all 3 terms.    Widen the search to "Florida" instead of "Boca Raton" and it is over 378,000 hits.  

With this many operators, it is pointless to even try to list them. The players change corporate identities every few months, and they get a new attorney front man even more often.


Why these operations are illegal

If you get called by someone saying he or she is from an attorney's office, and they are promising debt relief of any kind, ask them who their employer is - who sends them the W-2.   You should know that it is unethical in most states for an attorney to pay people to solicit prospective clients on the phone with whom they do not have a prior relationship.  It is unethical for an attorney to promise results.  It is not only unethical but deceptive to tell people that debts can be discharged due to offensive claims when an attorney hasn't reviewed the facts to determine in fact if there are any offensive claims.  It is usually unethical for an attorney to charge a non-refundable advance fee.  Attorneys are not allowed to split their fees with nonlawyers. In the operations that I've seen, the money goes to a third party company, not the attorney.

Debt management and debt relief companies have to give you a a lot of disclosure, have to register at the state level, and are generally barred from charging you an advanced fee. In the operations that I have seen, these attorney scams claim they aren't debt management companies, or debt relief companies. That, quite frankly, is a lie, because they aren't legal law practices either.

These operations usually violate state law as well as the federal Credit Repair Organizations Act. If you have given an attorney money in one of these scams, the odds are pretty good that you can get that money back, and maybe triple damages and attorney fees to boot.  If these companies call you, don't give them the time of day, much less any money. If you do give them money, call an experienced consumer attorney. If you are in Indiana, you can call me at 317-662-4529 or outside of Indiana, use the National Association of Consumer Advocates' "find an attorney" page to find an attorney in your area.

Don't Assume Your Student Loans Aren't Dischargeable in Bankruptcy

It gets hammered into people's heads that student loans, even private student loans, can't be discharged in bankruptcy.  Federal student loans can't be discharged without proof of substantial hardship.  Certain qualified private student loans get the same treatment, but there are enough exceptions that it would be wrong to assume that your private student loans can't be discharged.  In general, the crummier the school, the crummier the program, the more likely that the loans can be discharged.  For details, look at this article at getoutofdebtguy.com.

In general, loans incurred at for-profit colleges, loans at schools that don't offer government-backed loans (even if you didn't get a government backed loan) aren't covered. I'm working on cases involving CDL truck-driving schools and LPN-RN learning programs.  It looks like most of these loans will be dischargeable.  In one LPN-RN program, it looks like the loan should not even be on the credit report as a student loan, and that could raise some good claims under the Fair Credit Reporting Act.

In general, if the loan is for a for-profit college or some type of non-traditional training program, the odds are good that you can discharge the loan. If the loan covered expenses that weren't tuition, required books and equipment, room and board (within government guidelines), at least part of the loan may be discharged.  If you talk to a bankruptcy attorney about discharging your student loans, don't assume the attorney is right if he/she says the loan is non-dischargeable. This is especially true if you are going to a bargain basement bankruptcy lawyer.  Quite frankly, if you are paying $1000 or $1,500 plus a filing fee, for your bankruptcy, your lawyer is unlikely to vigorously pursue a claim that a loan is dischargeable.  Get a second opinion from an attorney who graduated from the Student Loan Workshop.  (I am not one, by the way, so I am telling you this as a neutral third party.)

Our Great Seneca's Ghost Case is in the News

Top-notch Reporter Kara Kinney of WRTV-6 in Indianapolis just posted a story about the lawsuit that I am working with fellow NACA member Keith Hagan and the Chicago firm of Edelman & Combs. We filed it as a nationwide class action against debt collectors who are trying to collect judgments under the names of companies that have been administratively dissolved - DEAD COMPANIES in other words. The dead companies are:

Great Seneca Financial Corporation
Centurion Financial Corporation
Colonial Credit Corporation
Monarch Capital Corporation
Platinum Financial Service Corporation

The video version will air tonight at 6:00 PM EST. Internally, we call this "the case of Great Seneca's Ghost."

If the video is posted to the web, I will embed it.  

Have you beeen receiving unwanted calls or text messages from Lincoln Tech?

Have you been receiving unwanted text messages or calls to your cellphone from Lincoln Tech?  If so, please call me office at 317-662-4529 or email me using the link on this page.  We are trying to determine whether this company has a pattern and practice of  texting people without their permission.

We are Looking for information relating to National Legal Staffing Support, LLC

We are looking for information relating to National Legal Staffing Support, LLC of Boca Raton, Florida. Whether you are a client, past client, former employee or whatever, please contact our office at 317-662-4529. Call us whether or not you had a problem with them, whether or not you have a complaint about them.  You put a puzzle together one step at a time. That's what we're trying to do.

Update Regarding Celadon Driving Academy, LLC

We are continuing to investigate the operations and the lawsuits of Celadon Driving Academy.  It looks like they filed about 20 lawsuits each week in October 2016.  It looks to me like most of the folks I've seen are getting sued for $7200 program cost, plus interest and attorney fees.  That's a lot of money for somebody who is out of work and just looking for a better life.  We filed an answer and a counterclaim in my client's case. Hopefully, in December we'll see how it goes.

Have You Been Receiving Collection Calls from GLA Collection Company Inc.?

We are representing a consumer in a lawsuit against GLA Collection Company Inc. alleging violations of the Telephone Consumer Privacy Act (TCPA).  If you have been getting collection calls from this company, we'd love to hear from you.  Call me at 317-662-4529 or email me through the link on this page.

Have You been Getting Calls from United Recovery Systems

Have you been receiving calls from United Recovery Systems?  Have they been calling your friends and relatives?  If so, please contact my office at 317-662-4529 or hoferlawindyATgmail.com (Naturally substitute the "@" for "AT".)

How to Address Problems with a Debt Relief Companies

There are a lot of companies using the web to get business that are in the debt relief, they promise that they can settle consumers' debt for 50% on the dollar or less.  THIS INCLUDES LAWYERS OR LAWFIRMS.  The first thing consumers should know is that no company can promise in advance that they can settle a consumer's debt for less than the amount owed.  Any company that attempts to do this is likely creating additional risks for the consumer.  Here is a list of some companies in the debt relief business.  If you are doing business with one of these companies or others, and you are in Indiana, please contact my office.  If you are in other states, you can find an experienced consumer attorney through the National Association of Consumer Advocates' "Find an attorney" page linked here.

Here is a list of some companies advertising debt relief services. These are not companies that I necessarily have had any contact with.

Freedom Debt Relief
National Debt Reilef
BLG: Borrowers Law Group
CuradDebt
American Debt Enders
Countywide Debt Relief
Consolidated Credit
Debt Be Gone
Credit master Debt Relief
Fast Track Debt Relief
Creditsolutions.com
Complete Credit Solutions, Inc
Residential Credit Solutions
Genesisbankruptcyattorney
Credit Masters Debt Relief


If this is your company and it shouldn't be on the list, email me at hoferlawindy dot com, and if you are involved with an other company that SHOULD Be on the list, call me.

If Celadon Driving Academy is so great, how come they sue so many of their students?

The Small Claims Court is likely going to be a very busy place on Tuesday, October 25, when the court processes 37 cases that were filed in just one day, 9/20/2016, by Celadon Driving Academy, LLC against former students. Most of these students were presumably hoping that getting their CDL and a job driving a truck would lift them out of their economic despair and be the answers to their problems.  Instead, I predict most of them will be facing a default judgment exceeding $7,200 that will stay on their credit report for at least 10 years unless they somehow find the money to pay it.

Celadon is one of a number of trucking companies that try to recruit new drivers by offering to pay for their training.  What people don't realize is that if for any reason, including reasons that aren't your fault, you can't not only complete the training but also complete the specified time on the job with the the trucking company, the company reserves the right to sue you for what they claim is the value of the education.  Since virtually nobody pays cash for the training, the cost ends up being whatever the company says it is.  Celadon may not be, and probably isn't, the worst of the bunch. It's just the one that's on my desk right now.

There is virtually no regulation of these contracts.  Because the contracts don't specify installments and may not have a finance charge on their face, they are not regulated under the Truth In Lending Act or under state Consumer Credit Codes.  Because the schools typically don't offer diplomas or certificates, the schools may not have to be licensed and face little or no state regulation.  T.he students may be trucked to the school location in a distant state before they even see or sign the contract. A big reason for this is if the school has the student sign the contract at the school, the school can sue the student in the school's legal jurisdiction without violating the Fair Debt Collection Practices Act.

In 2013, Celadon touted that 35 new drivers a week came to its school in Indianapolis, and that the training school was a great tool to overcome high turnover in the industry that averaged 98% per year. (Source: This Indianapolis Business Journal article.) That means that the workforce almost completely turned over every year.  That also suggests that a large number of people who take the course won't complete the 120,000 miles of driving required to discharge their contractual obligation.  (That's 2,000 hours of driving at 60 miles per hour, or 40 hours per week for 50 weeks a year, not counting any dead time or time waiting for loads.) Nobody ever talks about the people who are left behind and what happens to them.

What happened to these people that didn't complete the course and are being sued?  Well, that's what I'm trying to find out.  I am investigating claims relating to five issues with Celadon:

(1) Did Celedon Driving Academy lead students to believe that the training would be a lot shorter than it actually is?
(2) Is a large part of the difference due toa shortage of instructors, mentor drivers, or equipment that Celadon was supposed to provide?
(3) Did Celadon timely pay students for their orientation time?
(4) Did Celadon sue students for a contractual interest rate that wasn't on the contract?
(5) Did Celadon sue students for attorneys fees under circumstances where the contract didn't allow it?

If you have been sued by Celadon Driving Academy, LLC (which you may know under its previous name, Quality Drivers, LLC.), please contact my office.

If you have been sued by any other truck driving school, CDL school or any other trade school in Indiana, please call my office.  You might have defenses that you aren't aware of.

If you have been sued by a trade school in any other state,  find an experienced consumer attorney in the state where you have been sued through the National Association of Consumer Advocate's Find an Attorney page, linked here.

Here's a youtube video by a Celadon student. I don't know if the information here is accurate or not. I urge you to do as much investigation as possible prior to enrolling in any trade school. 

Putting the Heat on Volkswagen for Adblue Heater Failures

More and more VW diesel owners have been complaining to us about failing Adblue (urea) heaters in their vehicles. The heaters tend to fail after the blanket 3 year/36,000 mile warranty expires.  The heater is not covered under the longer emissions warranty, and VW owners have generally been quoted replacement, parts and labor, in the $1,800.00 range.  This is especially hard for owners to swallow now since most of the vehicles are covered by VW's emissions settlement with the Federal government that will likely require VW to buy back their vehicles - eventually.

I looked into the legal issues with an eye to filing a class action, and I determined that it is legal for VW to not cover these repairs.  Legal, but stupid.  These are owners that VW really needs replacement business from to stay in operation in the United States.  Instead, not only are these owners not going to buy Volkswagens, they are going to warn everybody they know not to buy Volkswagens.

If your VW has a failing Adblue heater, I suggest that you try to keep going until you can turn it in under the emissions buyback.  According to the website covering the emissions settlement, there will be a hearing for final approval of the settlement October 18, 2016.  There is an online form for registering a claim that you can do now.  Unfortunately, if you don't own one of the affected vehicles (which I don't), not all of the information is available. Here is the website for the settlement and claims process.  https://www.vwcourtsettlement.com/en.

If you can't wait that long, if you get turned down for coverage of an Adblue heater replacement, I suggest that you get some temporary white window paint, like this, and write with vigor on your windows slogans like:

"VW LIED, MY ADBLUE HEATER DIED"
"VW LEAVES ME BLUE"
"ASK ME ABOUT MY VW DIESEL - NO, DON'T"
"THEY CAN'T BUY BACK THIS TURKEY FAST ENOUGH"
"VW=POS"
"VW - BAD FOR THE AIR, WORSE FOR YOUR WALLET"
"VW DOESN'T STAND BEHIND ITS CARS - I WOULDN'T EITHER, WHO KNOWS WHAT'S COMING OUT OF THE TAILPIPE."

Okay, you probably can't fit that one on a window.  You get the idea, be creative.

Send pictures of your vehicle to VW North America to:

Volkswagen Group of America
2200 Ferdinand Porsche Dr.
Herndon, VA 20171

If you send me a a picture of your decorated car and allow me to print your name and city, I'll post it on my blog, or you can post it on your own blog or facebook page.  Don't call me though, because I don't have anything else to tell you.   If it works and you want me to share your experience with the world, send me a message.  I'll publish just your first name and last initial and city if you want, but I'll need your full name and address. 

FYI, it doesn't appear that there is anything keeping you from posting it (for a short time) on VW's facebook page.  Give it a try.  https://www.facebook.com/VW/.

Is The Car Center Out of Business?

The Car Center, :3520 South Post Road, Indianapolis, IN 46239, is a  typical buy-here, pay-here car lot - or maybe it was.  

I just received a tip that The Car Center has abruptly closed. I tried calling the phone number I had for them, and the phone wasn't answered.  UPDATED 9/28/2016.  I have confirmed that the company is definitely closed.  

I have received several complaints about this lot. None resulted in a case that I took action on.  Whenever a buy-here-payhere car lot closes, inevitably there are questions from the buyers:

Help, the car dealer I bought my car from has closed, what do I do?  Who do I pay?  What if I have a problem with my car?  How can I get my title?  If you have a car from this lot, you probably have to pay somebody, but it isn't clear who you have to pay.  Believe it or not, it isn't necessarily the person who calls you and says they hold the lien, but it MIGHT be.  The issue is complicated, but if a company provided floorplan financing to the dealership, that company doesn't necessarily have the right to repo yoru car.  You have superior rights to the floorplan finance company at least to the extent of your downpayment.  If the dealer held the contract in its own name without asignment to another finance company, your creditor will be the dealer's bankruptcy trustee if the dealer is bankrupt, and if the dealer is not bankrupt, it will still be the dealer.  

If you live in Indiana, the Indiana Secretary of State's Office has a Title Assistance Program, where if you have trouble getting a title from a dealer, you can file a complaint with their office, and they will attempt to assist, and they will issue you a new temporary tag. Note, a dealer in Indiana is only supposed to issue one temporary tag. If a dealer issues a second temporary tag, that is a sign the dealer is playing fast and loose with the law, and you should complain to the Secretary of State's office.  

Often, after you buy a car at a dealer, somebody calls you and says you have to turn the car in - even if you haven't missed any payments and even if no payment is due.  Usually this is not legitimate. You might have claims or defenses to be raised.  Before you turn the car into anyone, ask that company for written proof that they are the owner of your car loan.  If anyone comes to repossess the vehicle, tell them to leave or you will call the police for a "breach of the peace." If your car is repo'd call me at 317-662-4529.  If you are threatened with reop, call me as well.  

If you get a call from anyone who wants you to give up your car - record the call.  This may be key to proving a law violation later.  Ask for any demand to be repeated in writing.


Wherever you live in the United States, if you need to talk to a Consumer Attorney, the National Association of Consumer Advocates' Attorney Referral page can help you find one near you.  Here's the link.

http://www.consumeradvocates.org/find-an-attorney

Wells Fargo not only Fired 5,200 Employees for Opening Fake Accounts, they fired whistleblowers as well.

This week Senator Elizabeth Warren rightfully grilled CEO of Wells Fargo, John Stumpf.  She exposed that Stumpf personally made $200 million in stock appreciation based in no small part on Wells Fargo's countinuingly touting its push to 8 accounts per customer because "eight rhymes with great".  Stumpf could not answer if Wells had any research showing its customers needed 8 accounts, which of course, they don't.

The pressure to cross-sell was so high that over 5,200 employees were fired for  opening fraudulent accounts.  You would think after they have to fire 4,000 employees that the company might have seen a problem.  Of course, they saw the problem.  Carrie Tolstedt, the head of the community banking division that included the fired employees was recently allowed to retire at age 56 with a $125 million going away present.  What do you think the odds are that the severance agreement has some pretty mighty anti-whistle-blowing provisions?


People who did try to blow the whistle faced retaliation accourding to this CNN Money article.

http://money.cnn.com/2016/09/21/investing/wells-fargo-fired-workers-retaliation-fake-accounts/

It wasn't just whistleblowers who who tried to object to the fake accounts.  Duke Tran was fired from Wells Fargo after he tried to expose the practice of obscuring problems with documents used to support Wells Fargo's mortrgage foreclosures.

http://underdoglawyer.com/policy/




All of this is off the topic that I want to raise, and that is - what's it like to work at Wells Fargo?  I googled "I was fired by Wells Fargo, and here are a few tidbits that I discovered.

Were you sued by Nextgear Capital, Inc. in Hamilton County, Indiana?

Nextgear Capital, Inc. is a company that provides floorplan dealer financing for car and RV dealers. Nextgear has grown rapidly, and it finances a lot of dealerships, especially small dealers.

It appears that Nextgear also sues a lot of dealers. Although I usually represent car buyers, not dealers, it just so happens that int he past month I was contacted by two people relating to suits against them by Nextgear Capital.  These people had very different stories, but I was surprised to get two business loan intakes involving the same company within weeks of each other.  I checked to see how many lawsuits Nextgear files, and it apears that recently they have been filing about a dozen a month.  That's a lot for business-to-business cases.  It's not illegal, just unusual.

Nextgear finances dealerships all over the country, but their contracts specify that venue for disputes will be in Hamilton County, Indiana.  Because Nextgear finances a lot of small mom and pop dealerships, nextgear frequently gets third party guarantees on the loans.  Many people who Next Gear sues may have a tough time defending the case in Indiana.

Understand that the restrictions on where businesses can sue consumers don't apply to business-to-business contracts.  It is very likely that if you signed a contract with Nextgear either as a dealer or as a guarantor, that Nextgear can enforce the venue clause and require you to defend yourself in Hamilton County, Indiana.  That being said, you are entitled to get service of process and to know about a lawsuit before a default judgment is taken against you.  If a creditor gets a default judgment against you, and you had no notice at all of the suit, there is a good chance that if you hire a lawyer, the lawyer can get the default judgment set aside.  After the judgment is set aside, you likely will have to fight Nextgear on the merits of the claim, and fight in Indiana.

I am available to take defense cases on behalf of out of state car dealers and guarantors who are sued by Nextgear Capital, Inc.  You need to understand though that commercial litigation cases are expensive to defend. You might have to come to Indiana to defend the lawsuit.  If you are a consumer or a business person, think twice before you sign a contract that has a jurisdiction and venue clause. These clauses are only sometimes enforced against consumers, but they are almost all the time enforced against businesses.

If you are sued by a complany that alleges you signed a contract, but you didn't really, it is still crucially important that you defend yourself in court if you are sued.  Your defense costs might partially or entirely be covered by your homeowners insurance if you have identity theft coverage.  Check your policy and or talk with your insurance agent.

Advice for Would-be Cosigners:

If anybody asks you to cosign or guarantee a loan - as a general rule - don't.  The mere fact that you are asked to guarantee suggests that the would-be creditor isn't secure that the borrower will pay the loan, and the lender is in the business of knowing these things.  Instead of cosigning, if the loan is for a loved one, offer to put up collateral that you could afford to lose, or subsidize the downpayment to the extent the lender doesn't require a cosigner.  I have been asked many times by cosigners if I would represent them to sue a borrower who defaulted on the loan.  I have never taken one of these cases. My retainer is always more than the expected recovery against the defaulted borrower.

In two cases I did represent cosigners who alleged their names were forged.  One involved a student loan.  These cases are interesting. I will consider taking these cases.  Generally they are the tip of the iceburg for a more complex identity theft case.

Are you a UAW Member waiting for the new Legal Services Plan? We can help you until the new Plan takes effect

In the UAW collective bargaining agreements negotiated last year with the major automakers, there was an agreement to bring back a new legal services benefit. The autoworkers had given up the legal services benefit in the austerity period following the great recession.

It was my privilege to serve UAW Members for over 16 years as a staff attorney at UAW Legal Services Plan's Indianapolis office.  I still serve numerous UAW members and their families as a private attorney.  I also proudly drive a UAW-built vehicle, a Ford C-Max.  Like the UAW members, I have been trying to find news regarding the new legal services plan.

I have had members tell me that they haven't heard any news about when the new legal services plan is to become effective and what it will cover, and they ask me if I know anything.  Unfortunately, no.  I am not part of the group that is putting together the new plan.  I know that it is not an easy thing to do organizationally. What they have to do is put together a not-for-profit law firm from scratch that is license to practice in numerous states; and they have to set it up in a way that is cost-efficient and  tax-efficient for the automakers funding it and for the workers receiving the benefits.  When there is something concrete, perhaps the information will be posted at the old UAW Legal Serfices Plan website linked here.

If you are a UAW Member or family member and you have a legal issue that you want to have addressed before the new Legal Services Plan takes effect, please feel free to call me at 317-662-4529. If you are outside of Indiana, I suggest you try Googling the name of the attorney who used to serve you with UAWLSP.  Many of the prior Plan attorneys have gone into private practice.  You might also find them on AVVO.comAVVO.com.

Are You Getting Promotional Inquiries on your Credit Report from Capital One Bank?

Most people know that every time a potential creditor pulls your credit report in connection with an application for credit, your credit score is slightly affected.  This type of inquiry is known in the trade as a "hard pull".  There is a second kind of credit report access called a "soft inquiry" or "soft pull." These inquiries are properly for the purpose of a firm offer of credit (a promotional inquiry), an account review of an existing account or for the collection of an existing account, or for the consumer's own use. Sometimes a soft pull is appropriate for confirming the identity of a person.

Because they aren't part of your credit score, soft pulls are not thought of as being as damaging as hard pulls - but that might not always be true. In fact, for privacy purposes, the soft pulls may be even more damaging because they are not tracked as closely.  You might not even know who had access to your credit file.

Right now I am looking into whether Capital One Bank has been accessing a large number of consumer credit files on a  large number of occasions without making a  corresponding firm offer of credit in exchange for the information.

The next time you check your credit report (available for free one time a year from www.annualcreditreport.com), pay attention to the sections marked "Promotional inquiries" and "Account Review Inquiries".  The promotional inquiries should generally not have the same companies getting your report on many occasions.  The account review inquiries should relate to companies that you have actually done business with or with third party debt collectors who are currently servicing one of your accounts or who did so in the past.  If you don't remember receiving any offers of credit, or if a creditor listed under an account inquiry is unfamiliar to you, you can write that company, give them your name, address and partial social security number (partial only), and ask them to tell you the reason they accessed your credit each time.  Ask them to identify the account they claim to be servicing; and ask them to explain to you what firm offers of credit they made and when.  If they can't answer these questions to your satisfaction,  you should talk to an experienced consumer lawyer in your area. You can find one through the National Association of Consumer Advocates' "find an attorney"  page linked here.http://www.consumeradvocates.org/find-an-attorney

How to address problems with a new Recreational Vehicle

As one of a very few consumer lawyers in Indiana, the state where 2/3 of all new recreational vehicles (RVs) are built, I get a reasonable number of calls from people all over the country complaining of defective vehicles and shoddy workmanship. The number of complaints has increased lately as the economy has been doing better. RV sales are healthy and manufacturers are churning them out as fast as they can. - Maybe not with the same attention to detail. The good news is that most of the time that people call me, they don't need me - yet, because they haven't given the manufacturer a suitable opportunity to fix the defects. Here are some of the recreational Vehicle manufacturers located in Indiana:

 Crossroads RV
 Evergreen RV
Forest River RV
Heartland RV LLC
Jayco, Inc.
Keystone RV
Nexus RV
The RV Factory
Thor Motor Coach
Tuscany Luxury Motorhomes

 Though there may be some cost savings in buying an RV directly from the manufacturer (usually in the Elkhart, Indiana area); there are some benefits in buying from an authorized dealer near you. The reason is that if you buy from the manufacturer, the manufacturer may require that you deliver the vehicle back to the manufacturer at your expense to fix the defects. If you complain and make a fuss, the manufacturer might relent and have you bring the vehicle into a service center close to you; or they might even fly somebody out to fix your vehicle in some extreme cases. If you buy a vehicle directly from the manufacturer in Northern Indiana, and if you can't resolve your differences out of court, you may have to sue the Manufacturer in Elkhart County, Indiana - a county where the majority of the jobs directly or indirectly are tied to the RV industry. How sympathetic do you think an Elkhart County jury would be to your claim? We try to set up the case so we can file it in Federal Court, but that isn't always possible.

 Understand that the Lemon Law in Indiana (and in most states) does not apply to most recreational vehicles. Your warranty protection comes from the express warranty of the manufacturer and the implied warranty of merchantability. This also means that it is a very rare situation that you can require the manufacturer to buy the vehicle back or give you a replacement. Correspondingly, if you buy a used RV, you should only expect the protection of a narrow interpretation of whatever written warranty is given, and realize that there may be no implied warranty at all. For this reason, before you buy a used RV, I recommend that you pay for a professional inspection by a member of the NRVIA (National Recreational Vehicles Inspectors Association). You can find one in your area at www.nrvia.org. If you buy a new RV which exhibits numerous an/or expensive problems relating to workmanship early in your ownership, it may also be prudent to get a NRVIA inspection. An NRVIA inspection report that backs you up takes you out of the "unreasonable owner" or "morning after regret" category.

Keep in mind, that usually if you buy a used RV, it will usually be the dealer or a third party warranty company providing the warranty, so your claim would be against the dealer or the third party warranty company. Before you hire a lawyer, it is essential that you document each defect that you want the manufacturer to address, and present your claim for warranty repair in detail and in writing. It often helps to have pictures documenting the problem. Remember the longer you wait, the more likely it is that the problem will be attributed to normal wear and tear. You have to give the manufacturer at least one (and often more than one) attempt to resolve the problem before you can turn it into a legal claim. (There can be an exception to this rule under the U.C.C. doctrines of rejection/revocation of acceptance; but as a general rule, you need to give the manufacturer a chance to fix the problem.)

Don't rely on anything the manufacturer or dealer promises you on the phone. If you receive a promise on the phone, send the person an email immediately afterwards confirming what was said in your conversation. If you have a significant problem that still exists after the manufacturer has had the opportunity to inspect and repair the RV, you can contact a lawyer. You can contact me through my website here , or if you are outside of Indiana, you can find a consumer attorney in your area through the National Association of Consumer Advocates "find an attorney" page, linked here.

 If you are considering buying an RV, I want to point out that everything about the RV ownership experience is potentially expensive. If you have to strain your finances to afford the RV payment that you are considering, it's probably not the RV for you. RVs can be expensive to buy, finance, insure, maintain, repair, and move. It is also potentially expensive to litigate an RV defects case. Whatever attorney you hire, it is likely that your attorney fees will be at least $2,000. You can expect tht your attorney will try to set up a claim in such a way to try to get the other side to reimburse you for the attorney fees paid; but that doesn't always happen, and you are unlikely to find an attorney who will take on a complex RV defect case for a purely-contingent fee.

When I do a consumer case involving product defects, whether it is an RV, a car, or even an alarm system, I usually combine a customer complaint strategy with my legal work.  Sometimes the court of public opinion gives you a better remedy than the court of law.

Wells Fargo Forced Placed Car Insurance

Is Wells Fargo charging you for insurance ("forced placed" insurance) every month even though you have sent them proof of insurance? If this applies to you, whereever you live, please call my office at 317-662-4529. We are investigating the possibility for a class action against Wells Fargo for this practice.

Have you had your water disconnected without notice?

I recently talked with another attorney who alerted me to the problem that local water utilities often don't follow proper notice provisions before turning off water service. There is a remedy when this occurs. If this happens to you, call us at 317-662-4529.

Update on Debt Buyer Collection Lawsuits in Indiana - Other Courthouse Trends Noted

I just wanted to post a short note on trends that I have seen filed against consumers in Indiana this year. Since I last visited the topic, in August 2014, there seems to have been a slight decrease in the number of collection lawsuits brought in Indiana. I think that is partially due to an improved economy, and it is partially due to the fact that consumers cut way back in their credit card borrowing during the recession. There has been a corresponding rise in student loan lawsuits. New mortgage foreclosure suits seem to be way down; but on the other hand, lenders seem to be more reluctant to negotiate mortgage modifications in the lawsuits that are filed. This is especially true in cases where the loan was sold to private equity fund like LSF9 Master Participation Trust (serviced by Caliber Home Loans). A troubling trend is lawsuits to collect deficiencies on automobile loans after repossession. If you are looking for an Indiana consumer lawyer, or if you are sued anywhere in Indiana on a collection case, a repossession case, a foreclosure case, or if you have a new collector or attorney trying to collecto on an old judgment, please call my office at 317-662-4529. Below are some companies that frequently file against Indiana consumers: Midland Funding Arrow Financial Services Asset Acceptance LVNV Funding LLC American Acceptance Atlantic Credit & Finance Credit Max CACH, LLC RAB Performance Recovery NCO Financial Unifund Patriot Recovery LLC Portfolio Recovery

Have you received a 1099C letter from a debt collector?

I am collecting letters from debt collectors that threaten the issuance of a 1099-C (forgiveness of debt). There are a lot of different strategies that collectors are using to collect money using the threat of tax liability for foregiveness of debt. Often the collectors mis-state the law and the level of taxpayer responsibility. There are also some interesting legal issues now regarding the collection of accounts after a 1099-C has been issued. This should be completely banned, but at present it is not necessarily illegal. By the way, this is an issue where your vote in November can make a difference to your pocket book. If you vote for representatives who put the interests of Wall Street ahead of the interest of working people, you are going to end up with laws that allow banks to charge off a debt as a bad debt, so the bank takes a tax deduction, the consumer incurs a tax liability, then the bank sells the loan to a bottom feeder debt collector. The bottom feeder sues the consumer, gets a default judgment for the full amount of the debt plus interest and court costs. That's the kind of junk that is going on right now, and it really has to stop. Anyway, if you receied a 1099 letter from a debt collector, feel free to send it to me. If you want a referral to a NACA consumer attorney in your area, I will be happy to find one for you.

Were You Sued by National Collegiate Student Loan Trust (NCSLT) in Indiana? - Free Case Evaluation

I am interested in reviewing lawsuits filed by National Collegiate Student Loan Trust in Indiana. I am especially interested if there is a cosigner involved. I will be happy to review your documents at no charge and to discuss them with you. Send your documents to hoferlawindyATgmail.com. (replace the "AT" with the "@".) If we take the case as an offensive case (us suing them), generally there would be no out-of-pocket fee. If we take the case as a defensive case (us defending you from them) there would be an out-of-pocket fee. I found this video on Youtube by Alabama Attorney John Watts explaining your four options if you are sued by NCSLT. I am not affiliated with Mr. Watts, but I think this video includes some useful information regarding student loan cases, and NCSLT in particular. I think John Watt's take on NCSLT agrees with mine. Even though this video is over an hour long, if you are sued by NCSLT, it is worth watching. Basically, if you are sued by NCSLT, your options are: (1) Do nothing - NO NO NO (2) represent yourself - BETTER THAN NOTHING, BUT MAKE SURE YOU ANSWER THE COMPLAINT PROMPTLY AND FULLY. READ UP ON HOW TO DO IT RIGHT. (3) Hire an attorney to defend (4) Hire an attorney to negotiate. Understand that in most cases when borrowers represent themselves, they are eventually going to lose because the collection attorneys usually file motions for summary judgment which are very hard for nonlawyers to defend. Common defenses against NCSLT include: (1) Questioning the assignment (2) Statute of limitations (The loan may have gone into default earlier than you thought. (3) Questioning their payment records (4) Cosigner defenses Thanks to industry lobbying, even private student loans cannot generally be discharged in bankruptcy; however in a given case, a bankruptcy might be useful to free up resources to pay student loans, to get breathing room to free up assets to pay student loans, or to budget the payments in the context of a Chapter 13 repayment plan. On behalf of clients, my office has sued other student loan collectors (but not NCSLT) for suing consumers in a forum that is not allowed by the Fair Debt Collection Practices Act. As a general rule, a private student loan collector must sue you in the county where you currently live, in the county where you physically signed the student loan agreement - and this applies to the cosigner as well. Often the principal borrower is sued in the right place, but the cosigner is not.

Have you had Assets Seized or Garnished from an Indiana State Tax Debt (owed or not owed)?

I am interested in talking to people who have had assets seized or garnished relating to Indiana state tax debts, including income tax, payroll tax and other taxes as well. I have talked to two people who owned small out-of-state companies who were surprised to find out that the State of Indiana had put a freeze on their bank accounts relating to old tax debts. It seems that at least in some cases the problem comes up when the company does business for a short time in Indiana, pays payroll taxes for awhile in Indiana, then ceases Indiana operations, but the State of Indiana presumes that the operations and the employment went on (maybe for years) afterwards. The good news is that when you show Indiana that you ceased operations years before, it is likely that Indiana will send your money back. More problematic is getting back collection fees that are charged by third party collection agencies collecting for the state. I have some theories to get this money back, but I haven't been able to test them in the real world yet. Indiana has a contract with Premiere Credit of North America, LLC. to collect state taxes. Indiana may have arrangements with other collection agencies as well. If you have any problems with Premiere Credit of North America, please contact me. If you have assets seized relating to Indiana state taxes - even if Premiere Credit isn't involved, please contact me. I am trying to find patterns that so fare have been elusive.

Apology and Retraction

In a post to this blog in August of 2015 concerning the Sherman Group of companies, I inadvertently and incorrectly identified a company, Granite Bay Acceptance (Specifically, “Granite Bay Acceptance I”) as being associated with the Sherman group of debt collectors. I have since been informed and confirmed that this is incorrect. There is an entirely separate and distinct entity, Granite Asset Management LLC which is associated with the Sherman Group, but Granite Bay Acceptance is not. We confused these two entities in the original post. We want to make clear that we have no evidence or indication that Granite Bay Acceptance is a debt collector or has any relationship with the Sherman Group, and we accept their position that their primary business involves making firm offers of credit to consumers. We apologize to Granite Bay Acceptance for the incorrect information in the original post.

Initial "Call For Action" Ask an NACA Attorney Day was a success

Here's an article from the Indianapolis Star talking about their "Call for Action" program including the call in session staffed by NACA Indiana attorneys.

Free Ask an Attorney Night - Indianapolis Star Call for Action, May 19, 2016

Indianapolis-area NACA attorneys will be participating in a free "ask a lawyer" night from 5:00 PM to 8:00 PM in conjunction with the Indianapolis Star's "Call for Action" program.  I'm happy to be participating in this event.  We may even get a Facebook web stream going. We'll see how that goes.

http://www.indystar.com/story/news/2016/05/16/indystar-call-action-hosts-ask-lawyer/84184640/

Have you been sued in Indiana by Jefferson Capital Systems, LLC?

If you have been sued in Indiana by Jefferson Capital Systems, LLC, please contact us. The suit may or may not have something to do with the College Network.

Windows 10 help - If you can't select text, drag and drop after updating Windows 10.

After a Windows Update, I had a problem in that I could not select text, cut, paste, drag & drop with either the touchpad or a mouse.  I looked on the web for a solution, and the tips were not helpful, including the top to update your driver.  More than one said that the change in touchpad response was due to the implementation of multi-finger gestures in Windows 10.  The problem was the touchpad wasn't responding to any multifinger gestures.  

Eventually I found one post that said, instead of "updating" my driver for my touchpad, I should roll it back to the previous driver.  I went into SETTINGS then MOUSE AND TOUCHPAD, and followed menues from  there until I found an option to ROLL BACK DRIVER.  I clicked that, restarted the machine, and everything worked fine.   BOTTOM LINE - IF YOUR TRACKPAD SUDDENLY DOESN"T WORK UNDER WINDOWS 10  - ROLL BACK YOUR DRIVER.
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More on Caliber Home Loans and LSF9 Master Participation Trust - Beckwith vs. Caliber Home Loans

I ran across a 2015 court case from the United States Federal District Court for the Northern District of Alabama, Beckwith vs. Caliber Home Loans et al.  This is a case where a borrower whose mortgage had been assigned to LSF9 Master Participation Trust (serviced by Caliber Home Loans) sued Caliber and those up the chain of ownership alleging a bunch of theories of liability including breach of contract and Truth In Lending Act violations.  The originating bank filed a demand for arbitration. There was an arbitration clause in the contract.  The borrower claimed that the Dodd Frank Act applies which bars arbitration clauses in home mortgage contracts but which wasn't passed until after this loan was executed.  The court held that the original lender gets to hide behind the arbitration clause because as a general rule statutes passed after contracts are executed can't change the terms of the contract; however, because Caliber was not a party to the contract, Caliber can't hide behind the arbitration provision.   This case might be useful to anyone litigating against Caliber in the future.  (It is only binding authority in the Northern District of Alabama, but the reasoning is about what I would have expected.)

We are looking into Vivint Home Security - Looking into Deceptive Marketing of Alarms & Home Security in General

We are looking into issues relating to Vivint Home Security.  If you are an Indiana resident who has an issue with Vivint Home Security, please contact us.  Actually, we are looking into deceptive marketing and sales practices in the entire home security and alarm industry.

David Garden Guilty on 20 Counts

Indianapolis television station Fox 59 reports that a jury found "businessman" David Garden guilty on 20 counts including corrupt business influence, forgery and theft.  Even though I was not involved in this case, I was interviewed by reporters as an expert on scams like those of David Garden.

I wish David Garden was one-of-a-kind, but he's not. People are being taught to scam hapless homeowners in "no money down" real estate courses.  The first people that get scammed in "no money down" real estate scams are the people taking the courses.  They key to making money in "no money down" real estate is to find a motivated seller, someone who will give you their home, or control of their home, without getting paid for it.  You may ask why anyone would surrender their home, their most valuable asset, without getting any money for it.  The answer is, usually they won't; and it is extremely difficult to make money in real estate with no money down. Most people can't do it.  If you find someone desperate enough, and you are a good enough con man, you might be able to come up with a lie that will just do the trick.

According to media reports, David Garden found homeowners nearly in foreclosure and promised them a "short sale".  Only your lender can truly come up with a binding agreement to do a short sale. It's far from guaranteed, and often it isn't worthwhile if you can get it.

Anther tactic is "we buy homes".  You've probably seen the signs "we buy homes" on bulletin boards and telephone poles.  the "we buy homes" scam identifies people who owe more on their house than what it is worth and who want to move.  The scammer identifies these people and promises to pay their mortgage and get them out from under the loan.  The key is the documents the scammer has the homeowner sign doesn't do any of this. Usually the scammer will have the homeowner sign a power of attorney, a sale leaseback agreement and a deed.  In no case is there a legitimate business purpose for all of these documents.  In a legitimate sale-leaseback, the buyer actually provides the capital to buy out the original lender, and then rents the house back to the original owner, generally with an option to purchase. The sale-leaseback agreement is recorded. The scammers don't record the sale-leaseback, they get the original owners out of the property, and they provide no capital.  The power of attorney makes the scammer the agent for the owner. That's like giving the keys to a safe to a thief.   When the scammer gets a deed - that's really crazy, because that's giving away your house for nothing.

Once the scammer gets control of your house, the scammer will find a tenant to rent the house, collect the money, but the scammer doesn't forward any of the money to the original owner or the lender.  The scammer may even collect a large down payment from the tenant under the guise of a rent-to-buy contract downpayment.  In this case, the owner loses, the lender loses and the tenant loses.  Only the scammer wins.

If you are a victim of a we-buy-homes or similar scam, it may be very hard for you to get justice. Humpty Dumpty has already fallen off the wall. Sometimes, if you get to the scammer early enough, you can, with a lawsuit, pressure the scammer to sign rights to the home back to you and undo all the fraudulent paperwork.  A skilled scammer will hid behind corporate shells and duped accomplices who have no money and will vanish before the law can get to them.  Unfortunately, from the people that I have seen who were victimized by these scams, the best option in the majority of the cases ended up being bankruptcy.

Since there is no easy out if you are victimized by a no-money-down home scammer, the important thing is to avoid getting scammed in the first place. If it sounds too good to be true, it probably is. If someone wants to intercede between you and your lender, be very sceptical.  Check everyone out.   If you are victimized, find a consumer lawyer near you at www.consumeradvocates.org.

My car didn't come with a spare tire. Is that safe?

My car didn't come with a spare tire. Is that safe?

More and more new cars DON'T come with a spare tire -- not even a compact spare.  My Ford C-Max did not come with a spare tire, and that's the norm for hybrids and electric cars because cargo space is precious after you pack in the batteries.  I decided that I would take it upon myself and find out just how dangerous it is for a car to come without a spare tire.  What I found out was surprising.

First some background to the problem. There is some benefit to NOT having a spare tire. Omitting a spare tire saves weight, space and increases usable cargo room. It also saves cost. If you don't have a spare tire, you don't pay for it.  The benefit of having a spare means that if you have a flat in a place where you can change to the spare, you put on the spare and safely drive to the nearest mechanic to have the regular tire replaced and repaired. Of course, SOME flats can be fixed by aerosol sealant a/k/a "Fix-a-flat" or "goop".  Cars that don't come with a spare virtually always will have a tire repair kit with spray sealant.  So, then, you have to weigh the odds of having a flat, the odds that that flat won't be fixable with goop but occurring in a place where you can change to the spare.  You also have to look at the odds of putting yourself in more danger while you are fixing the flat.  On most busy roadways in the United States, if you are able to pull off the road, you don't have room to change a tire on the left side without being in traffic, and on the right side you may not have enough shoulder to change a tire at all.  Your other option is driving on the flat tire until you can get the car to a safe place to either call roadside assistance or get the tire changed.  This will likely ruin the tire if it isn't already ruined, and it may ruin the rim as well, but it will likely not put you in additional danger like changing a tire on the side of a road.   There are also "run flat" tires, tires that are designed to be driven on for a limited distance without air.  These tires are more expensive and generally don't wear as long as conventional tires.

I haven't had to change a tire since 1982. I have had three flat tires since then, but in each case, the tire went flat from a slow leak caused by road debris, and I was able to get the tire inflated well enough with or without goop to get to a tire store.  So I have had one flat tire a decade since 1982 and I've never had to use a spare.  With that history, I felt reasonably safe buying a car without a spare tire.  Still, I wondered if my experience was typical or if flat tires were more common. I figured that surely somebody had to do some research to determine that it is safe to leave spare tires off of new cars.   What I found out was that either nobody did that research, or they aren't publicizing the results.

I figured the experts on this issue had to be the National Highway Traffic Safety Administration (NHTSA). I sent them an email asking them if they had any research on the issue, and they replied back that they have none.  I asked the Insurance Institute for Highway Safety (IIHS), and they replied back that they had none. They suggested that I contact the automakers. I'm not going to do that, because if I were one of the automakers and I had that information, you wouldn't get it out of me without a subpoena.

The bottom line is that, as far as I can determine, nobody has researched the issue about the risk of shipping new cars without spare tires.  Since more and more cars are leaving the factory without one, I think it is high time for somebody to step up and look at the issue.  When I get some time, I may see if research has been carried out in other countries, but honestly, the risks may be different not only in different countries but different parts of the United States. If I mainly drove in the boondocks, I would want a car with a spare tire, because tire stores and AAA trucks would be few and far between, and you are more likely to be able to safely pull off the road and change your tire.  If I lived in the Northeast Corridor, I'd probably take out the spare tire if I had one and plan on driving on the rim.

If you have a spare, make sure it is in good condition, you know where the tools are and how to use them to change the tire.  If you have a kit with sealant, make sure your sealant hasn't expired. The cans may only be good for 2-3 years.  If you don't have a spare, you might want to think carefully before you try to get the last 5,000 miles or so out of your tires.

Was Your Mortgage Loan Sold to Another by Bank of America During a Trial Modification?

If you are an Indiana resident whose Bank of America loan was transferred to another lender (possibly Seterus or Caliber)  during or after a trial modification, and if you don't already have a lawyer, please contact me.   If you are outside Indiana, find a NACA attorney at www.consumeradvocates.org.  Don't delay, these cases are touchy and time-sensitive.

Another IRS Scam

I received a call on my cell phone that caller ID listed as (619) 548-2875.  The recorded voice said it was a call from the IRS, and the were going to file a lawsuit against me.  This is, of course, a scam. If you get one of these calls, don't call them back, don't do anything.  Don't even call me.  This type of scammer is virtually impossible to take private action against. They operate in a way that they don't have any assets that you can get to even if you can find out who to sue.  You can report them to the F.B.I.'s Internet Crime Complaint Center (known on the web as IC3) at www.ic3.gov.

Some thoughts on Mortgage Foreclosure Defense - What makes a successful Case?

I'm just completing several mortgage foreclosure defense cases, and I'm pondering the lessons learned.. Mortgage foreclosure defense was never a huge part of my practice, though I am one of the few Indiana lawyers that take such cases, but during the surge of foreclosure filings following the great recession, I handled my share.  As I think about it, every foreclosure defense case I've had has been unique, and I think it is because people who find themselves sued for foreclosure are in that position because life has put them in extreme circumstances. Usually the circumstances couldn't have been predicted by the homeowner.  When you faced with foreclosure, and you are looking for a foreclosure lawyer, you should look for a lawyer who will take the time to listen to you, and you should take the time to tell the lawyer what your goals and expectations are.  You should also listen to the lawyer though, especially if the lawyer believes your goals are not realistic, and may not even be in your best interest.

One lesson that my cases have taught me is that all houses aren't worth saving. If you sign a modification that commits you to paying well more than the house is worth, you should think long and hard about doing it. When you sign a mortgage modification that puts principal balance on the back end of the loan, even if your payment is workable, the added principal balance hurts your net worth.  You may be wedded to that home for years because your modified loan is under water. You won't be able to sell the house without defaulting on the loan, and defaulting on the loan may kill your chance of buying another house.

It's normal not to be decided when you are sued for foreclosure whether the house can or should be saved. In that case, hire an attorney and start the modification relief request process.  You don't need to make up your mind until there is an offer on the table. In the meantime, contesting the foreclosure and requesting mortgage relief can buy you time that you need to make up your mind and figure out what to do.

I have learned to be careful taking cases from clients who have been employed but have not been making payments on the house for a year or more. If you haven't made any housing payments for over a year, and you are employed, then in that year, absent very extenuating circumstances, you should have saved up a pretty good chunk of money. If you didn't save anything, the odds are not good that you will be able to make your modification payments if the loan is modified.  The bottom line is that when you go to see an attorney about foreclosure defense, you need to be ready to explain what you've done with your money since you stopped making mortgage payments. If you can't answer that question, the attorney might not even be doing you a favor if he/she takes your case.

Another lesson I've learned  is that different family members may have different ideas concerning whether it is best to take extraordinary measures to save the house versus moving on.  You need to have a candid conversation. This is especially true when the assets and income of different family members are needed to modify a mortgage.   You should think twice about putting a young adult son or daughter on hook for a modified loan of a home with no equity.  Young adults often have to move to find new jobs. When your son or daughter can't move because he/she can't sell the house, it may be be a real career-killer.  Similarly, getting cash from retired or soon to be retired parents may not be a good idea, especially when that cash goes to pay arrearage and cost of foreclosure.  That money vanishes as soon as you pay it, because it isn't covered by any value in the property.

At least half of the people who have hired me for mortgage defense came to me after spending thousands of dollars on a "paper mill" mortgage relief firm first.  Don't hire a mortgage relief firm that says "we have lawyers".  You don't care if THEY have lawyers, you want one who represents YOU.  No lawyer can represent you and the mortgage relief company too.  The National Association of Consumer Advocates can refer you to a NACA member consumer lawyer who can represent YOU.  Usually it will be cheaper than hiring one of the paper mill companies.  For a referral, go to www.consumeradvocates.org.  Every attorney seems to have a different way of getting paid in mortgage defense cases. When I take a foreclosure defense case, I typically charge an attorney fee paid in monthly installments based on what I think a likely modified payment will be. I work against the retainer on an hourly fee bases. When I do cases like this my fees are usually less both up front and total than the mortgage relief scammers, and usually the total fee is less than what a typical 7% real estate agents commission would be to sell the home.  When I charge fees in this manner, if the client can't keep up the attorney fee payment, I know the client would have a hard time making the mortgage payment.

A lesson that I already knew is that there's no such thing as a "free house".  You'll see all these postings on the internet about "produce the note".  They'll tell you that mortgage companies that can't present an original promissory note or assignment can't foreclose on you, and that beating them is a slam dunk.  I can't say that it is impossible to win on a present the note case but it is unlikely, and if you win, it will be only after a tough fight and lots and lots of attorney hours, time that you'd have to pay for.   I've had lots of people call me because they wanted their mortgage company to produce the note. Not one of them have wanted to pay for the hours necessary to work up that kind of defense.

So i'm ready to answer the question of what makes a successful mortgage foreclosure case. The answer is that it depends upon the client's situation in life. If they client doesn't have the money to pay for the house and the house's upkeep, then you are best working out  a deal for enough time in the property for the client to save some money and obtain alternate housing.  If the client has enough cash flow to make a reasonable house payment and want's to stay in the house for a long time, then it's usually best to get a modification sufficient for the client to stay in the house at a payment he/she/they can afford.  If the client is part of a family with different interests and objectives, it is best to get the entire family to talk about the situation honestly.  The delay inherent in the mortgage foreclosure process amounts to a subsidy of many thousands of dollars.  If the family can make the most of this, they can usually arrange a soft landing, often in housing that they like better than the original home.

The Return of the Fake Bill

We recently received the correspondence below at my house. My wife and I have subscribed to National Geographic as long as we've been married - over 25 years; so when received the letter below, we assumed it was a reminder notice from National Geographic Magazine.

"Notice of Continuation" in big bold letters. What else were we to believe? Well, if you look at the bottom, in smaller, thinner red print, you can see "This is an offer from an independent agent, not a bill."

On the back, they repeat that "The offer that you received is just an offer and not a bill or invoice and you are under no obligation to either buy or renew at this time or any time in the future."

The letter is from the Atlantic Publishers Group, LLC, from the beautiful Atlantic town of Niwot, Colorado.

There is nothing wrong with independent magazine publishers soliciting you to buy magazines. Publishers' Clearinghouse has been doing this for years, promising everyone that they "might have already won" millions of dollars.  As questionable as those prize solicitations might be, Publishers' Clearinghouse doesn't pretend to be the actual publisher or try to mislead subscribers that that is who they are.  They also don't insinuate that you actually owe money on an outstanding bill.

As it turns out the Republican National Committee has crossed that line and is sending out fake bills thatare even more deceptive than the magazine bill above.

According to Rachel Maddow of MSNBC.com, The Republican National Committee, under the signature of, and presumably under the authorization of Republican National Chairman, Reince Priebus, has been sending out letters "PAST DUE" and "NOTICE OF DELINQUENCY". These letters are not just going out to donors and persons who have pledged money.

I can tell you that there are millions of adult elderly people out there who have diminished vision and/or diminished capacity who will pay anything that kind of looks like a bill, and that's why these scams succeed again and again. Some elderly people don't remember what they ordered, and they figure they must have ordered something and forgotten about it. In other cases, the children of these elderly people know that mom or dad spends days at home ordering stuff and they don't want mom or dad's credit to go down the tubes.

if you receive a deceptive fake bill, even if you aren't taken in by it, I urge you to report it to the Federal Trade commission at www.ftc.gov.

National Collegiate Student Loan Trust can't count to six

I have been hearing more and more stories about the National Collegiate Student Loan Trust (NCSLT) suing student borrowers well after the statute of limitations has expired. In my state, Indiana, the statute of limitations is 6 years from the time the loan goes into default or when the last payment was made, whichever is later. In some states, it is 5 years.

Many people mistakenly believe that there is no statute of limitations for any student loans. Actually, there is no statute of limitations for government-backed student loans; but the ordinary contract statute of limitations applies to private student loans.

In addition problems with the statute of limitations, we are aware of problems with the assignment of some NCSLT loans as well as lack of proof of proper notice to the cosigner in cosigned student loans. In addition, in some cases it may be inappropriate to sue the cosigner in the same place as the chief borrower.

If you are sued by NCSLT, please call our office if you are in Indiana.  If you are outside of Indiana, contact the National Association of Consumer Advocates at www.consumeradvocates.org for a referral to an attorney in your area.

Are a large number of Ram Promaster Vans Lemons?

The Ram Promaster is the American market version of the Fiat Ducato, a Euro-style van that has been available in Europe for more than 20 years. The Ram version is made in Mexico and has been available since the 2014 model year.

After fielding a telephone call regarding problems with a Ram Promaster van, I did some internet research. Based on what I found, it appears that the Ram Promaster would not be a vehicle that I would consider for my business. If you have a Ram Promaster that has given you trouble, I suggest that you keep good records of the repairs and dates out of service for the possibility of making a lemon law claim.

One good thing is that all or almost all variants of the Promaster have gross vehicle weights under 10,000 lbs.  This is the cutoff for protection under the lemon law in Indiana as well as many other states.  Most commercial vehicles are heavier and are excluded from lemon law protection.

If you have a vehicle that you think might be a lemon, if you are in Indiana, feel free to contact me. If you are outside of Indiana, get a referral to a lawyer in your area at www.consumeradvocates.org.

Cedar Financial - International Debt Collections and comments for avoiding claims of rental car damage

A friend gave me a letter he received from Cedar Financial, of Calabasas, California. Cedar Financial is a collection agency that specializes in international debt collection. The letter in question was an attempt to collect a little over $300 for a traffic ticket issued in Italy (allegedly, anyway).  The letter attempts to comply with the "g" notice Fair debt Collection Practices Act requirements for initial written communications. It notifies the debtor that he has 30 days to dispute the debt, etc.

Just because the notice complies - or attempts to comply- with the FDCPA doesn't mean the account is subject to the FDCPA though. The FDCPA only applies to "consumer debts", and domestic traffic tickets aren't considered to be consumer debts. I've seen no court decisions on foreign debts, but I checked to see what happened when Cedar Financial was sued by other parties, and as far as I could tell, a handful of suits were all dismissed shortly after filed. Now, as far as I know, those suits could have been settled, or they could have been dismissed because they shouldn't have been filed in the first place.

Note that it makes a difference for whom Cedar is collecting. If they are collecting for a foreign government or municipality, I think it is likely that the FDCPA does not apply, but if they are collecting for a rental car company that paid the ticket and is trying to get reimbursed, then the collector likely is subject to the Fair Debt Collection Practices Act. Claims for debts owed to private toll-way operators, EasyPass and the like should be subject to the Fair Debt Collection Practices Act.

I tried to find any indication that they actually sue on any of these accounts, and I was unable to find any. That doesn't mean that they don't sue. It means that I doubt that they will sue. If they do sue, it could be surprisingly complicated to defend, because they could sue you overseas then ask for confirmation of an overseas judgment.  This will likely mean any attorney you hire (including me) would have to seriously crack the law books to figure out what the law requires.  It looks like they do sometimes report these debts to consumer credit reporting agencies. Here is a case that a consumer filed in US District Court in Florida without an attorney. The other side got the case dismissed.  The consumer might have kept the case going if the consumer had filed a dispute with the credit reporting agencies (credit bureaus) prior to filing suit.  If Cedar Financial is reporting on your credit reports, call a NACA attorney.

If you get a collection letter from Cedar Financial, I suggest you do the following:

1) Send a dispute letter asking for proof of the debt, asking them who hired them and who owns the debt. Also ask for an itemized accounting for how the amount claimed has been calculated.
2) If they call your cell phone, send them written notice that they do not have permission to call your cell phone. Send it in a form you can prove they received it, either fax with confirmation or certified mail.  The purpose of this is to preserve your rights to claim damages for subsequent calls under the Telephone Consumer Privacy Act (TCPA).  

If you receive collection calls on your cell phone from Cedar Financial, and you have notified them not to call your cell phone, contact an attorney in your area with the National Association of Consumer Advocates. You can find one in your area at the NACA website at www.consumeradvocates.org.

What will happen if I don't pay Cedar Financial?  Well, maybe nothing. They may call you. There's a chance that they'll sue you, but I doubt it.  It appears that there is some sort of online database at least in Italy that may make it hard for you to rent a car there again if you have an unpaid ticket.  Such a database if applied in the United States would be subject to the Fair Credit Reporting Act, and you would have the right to dispute the information posted on your record, but different countries would have different laws or no laws at all regarding traffic ticket databases.  If you are a frequent international traveler, you would have more financial incentive to pay the ticket.

What can I do to prevent claims by rental car companies?

If the claim is for unpaid tickets, including Easypass and other tollways, you should actually pay owed debts.  They can be tenacious regarding collections. But if you don't owe the debt, you should send a letter to the collector giving the reasons you don't owe the debt, for example they got your car or license plate number wrong.

Consumers frequently receive claims by rental car companies for damage to rental cars that the consumer never saw.  When I rent a car, I always note that dirt on the car makes it hard to determine if there is damage to the car, and I take digital pictures of the car from all angles when I pick it up and when I drop it off.  It is easy for memories of a vacation to be spoiled by claims of thousands of dollars worth of damage and loss of use to a vehicle that you rented for a week several months ago.  You should always dispute claims for diminished value when they are also claiming the cost of repair to the car's original condition.  That is double-collecting for the rental car company.  If it is a long-term rental, more damage should be included within the ordinary wear and tear for which the rental car company is already being compensated.  If the damages claimed are significant, consider talking to a NACA lawyer before responding.  If you are in Indiana or you rented the car in Indiana, I would be happy to help you.

If you want more information on disputing a ticket or fine that you received in Italy, check out this webpage. I can't vouch for its accuracy, but I don't have anything better.