There is a surprisingly non-partisan case up in the United States Supreme Court right now, Impression Products v Lexmark, the Supreme Court is considering whether Impression Products has the right to refill and sell patented Lexmark inkjet printer cartridges. The general rule in patents is once a company with a patent sells a covered product, the sold product is not subject to additional restrictions by the patent holder.
At issue is a judicially-crafted narrow exception for products that were sold with an explicit contractual restriction. Lextmark claims that its cartridges are sold with a restriction on resell on the outer shrinkwrap of the cartridges that is supposedly supported by a 20% discount.
The Supreme Court is supposedly having a tough time deciding this case. They should let me write the opinion. Here's my rough draft:
"Lexmark's position is complete bullshit. Th. The e shrinkwrapped contract does not represent true assent. The consideration is illusory. Even if the contract not to sell was valid, restrictions on sale of printer cartridges violate the very core principles of our patent system, so to the extent that the exception is valid at all, which may need to be considered in another case, it can't be stretched to this product. "
Sunday, March 26, 2017
Friday, March 24, 2017
Have You Had A Vehicle Repossessed by Baam Financial, Inc.? Look at their Lawsuits
If you have impaired credit and bought a car from one of the Andy Mohr Indianapolis-area dealerships, there is a good chance that your loan was placed with BAAM Financial Inc. BAAM Financial files a lot of lawsuits in Marion county. In representing a current client, I noticed that BAAM sues for unusually high deficiencies in what would be expected to be suits involving relatively low-priced vehicles. Let me explain.
My client purchased a 2005 Nissan Altima from Andy Mohr Nissan, Inc. in May 2013. She financed $10,398.65 on this car which had over 133,000 miles on it when she purchased it. That's not a good deal, in my opinion, but it's not illegal. The car was financed with BAAM Financial at 21% interest. Again, not a good deal in my opinion, but if you have credit issues you don't always have a choice. She made payments on it (not always on-time) until September 2016, when it was repossessed by BAAM. At the time it was repossessed, there was a listed balance on the loan of $8,100.54. It is this amount that BAAM sued her for plus costs, interest and attorney fees.
Note that the record this stage doesn't reflect that BAAM recovered any proceeds from the sale after repossession of the vehicle, or that BAAM applied proceeds to the loan balance sued upon. The law is clear that after repossessing a vehicle, the lender is supposed to dispose of the vehicle in a commercially reasonable way. It is possible that an old vehicle with mechanical problems doesn't have any commercial value. If that is the case, we are going to argue in this case that it is commercially unreasonable to repossess it in the first place, and if the lender repossesses the vehicle then finds out that it has no value, we are going to argue that commercial reasonableness requires that the lender needs to give the owner a chance to reclaim the vehicle.
I did a quick survey of what happened in five other BAAM Financial cases in Marion County Indiana. All of these cases went to default judgment, so the attorney fees are not likely too high. Each one of these cases reflect what are (in my opinion) high deficiency balances for subprime credit vehicles. I don't have records to tell me what caused the high deficiencies in these cases, but based on my experience with other cases, I would guess a mixture of high initial prices plus low prices obtained on disposition. Sometimes low prices at disposition are caused by commercially unreasonable sales, and sometimes not.
Case Number Judgment Amount
49D10-1604-CC-012616 $12,314,81
49D14-1601-CC-00113 $ 8,402.18 ("and forfeiture of 2004 F150")
49D04-1601-CC-000104 $13,266.49
49D01-1001-CC-00118 $13,370.49
49D01-1601-CC-00110 $ 8406.63
In summary, the amounts they are claiming after all credits were applied including after the sale of the car, looks a lot like what the car sold for originally, This isn't right, and judgments like these can be the financial deathblow to a struggling individual or family.
If you are currently being sued by Baam Financial, please talk to a lawyer. You need to make sure your rights are protected. You need to make sure that the vehicle was sold in a commerically reasonable way and that the proceeds of the sale were applied to your balance. If the finance company did not sell your vehicle in a commercially reasonable way (and getting an unusually low price at resale is often a result), you may be able to defend completely or partially against a lawsuit claiming a deficiency. In certain cases, you may be able to raise a claim for damages and attorney fees to be paid by the other side.
IF YOU HAVE BEEN SUED BY BAAM FINANCIAL, INC., EVEN IF YOUR CASE WENT TO JUDGMENT, I WILL REVIEW YOUR PAPERWORK AT NO CHARGE TO YOU. PLEASE CALL ME AT 317-662-4529 OR EMAIL ME AT HOFERLAWINDY@GMAIL.COM.
My client purchased a 2005 Nissan Altima from Andy Mohr Nissan, Inc. in May 2013. She financed $10,398.65 on this car which had over 133,000 miles on it when she purchased it. That's not a good deal, in my opinion, but it's not illegal. The car was financed with BAAM Financial at 21% interest. Again, not a good deal in my opinion, but if you have credit issues you don't always have a choice. She made payments on it (not always on-time) until September 2016, when it was repossessed by BAAM. At the time it was repossessed, there was a listed balance on the loan of $8,100.54. It is this amount that BAAM sued her for plus costs, interest and attorney fees.
Note that the record this stage doesn't reflect that BAAM recovered any proceeds from the sale after repossession of the vehicle, or that BAAM applied proceeds to the loan balance sued upon. The law is clear that after repossessing a vehicle, the lender is supposed to dispose of the vehicle in a commercially reasonable way. It is possible that an old vehicle with mechanical problems doesn't have any commercial value. If that is the case, we are going to argue in this case that it is commercially unreasonable to repossess it in the first place, and if the lender repossesses the vehicle then finds out that it has no value, we are going to argue that commercial reasonableness requires that the lender needs to give the owner a chance to reclaim the vehicle.
I did a quick survey of what happened in five other BAAM Financial cases in Marion County Indiana. All of these cases went to default judgment, so the attorney fees are not likely too high. Each one of these cases reflect what are (in my opinion) high deficiency balances for subprime credit vehicles. I don't have records to tell me what caused the high deficiencies in these cases, but based on my experience with other cases, I would guess a mixture of high initial prices plus low prices obtained on disposition. Sometimes low prices at disposition are caused by commercially unreasonable sales, and sometimes not.
Case Number Judgment Amount
49D10-1604-CC-012616 $12,314,81
49D14-1601-CC-00113 $ 8,402.18 ("and forfeiture of 2004 F150")
49D04-1601-CC-000104 $13,266.49
49D01-1001-CC-00118 $13,370.49
49D01-1601-CC-00110 $ 8406.63
In summary, the amounts they are claiming after all credits were applied including after the sale of the car, looks a lot like what the car sold for originally, This isn't right, and judgments like these can be the financial deathblow to a struggling individual or family.
If you are currently being sued by Baam Financial, please talk to a lawyer. You need to make sure your rights are protected. You need to make sure that the vehicle was sold in a commerically reasonable way and that the proceeds of the sale were applied to your balance. If the finance company did not sell your vehicle in a commercially reasonable way (and getting an unusually low price at resale is often a result), you may be able to defend completely or partially against a lawsuit claiming a deficiency. In certain cases, you may be able to raise a claim for damages and attorney fees to be paid by the other side.
IF YOU HAVE BEEN SUED BY BAAM FINANCIAL, INC., EVEN IF YOUR CASE WENT TO JUDGMENT, I WILL REVIEW YOUR PAPERWORK AT NO CHARGE TO YOU. PLEASE CALL ME AT 317-662-4529 OR EMAIL ME AT HOFERLAWINDY@GMAIL.COM.
Monday, March 20, 2017
Have You Been Sued by LVNV on an Out-of-State Judgment
I have a case where LVNV Funding, LLC, filed to have a Tennessee judgment issued in the name of the original creditor converted into an Indiana Judgment in the name of LVNV. We are currently fighting this. If you are involved in a similar case, even in totally different states, please call me. I'm not really interested in getting more clients on this. What I want to do is to find out if LVNV is filing a lot of these.
Parent of CACH LLC files for Bankruptcy
Square Two Financial Corporation, the parent company of bad debt buyer CACH LCC, has filed Chapter 11 bankruptcy. From the looks of it, this was a "prepackaged" bankruptcy, with Resurgent Holdings LLC waiting in the wings to buy up the assets of the company.
If you are being sued by CACH LLC, your case is expected to go on without interruption. There may be a snag in getting documents (even more than usual) because of the need to integrate CACH's record system with Resurgent's.
If you are suing CACH, then you have my sympathy. Your case will likely be caught up in the bankruptcy and likely be stalled for a good long while at best.
In my opinion, Resurgent (and its subsidiary LVNV) is neither better nor worse than CACH, so from a consumer's point of view, it's probably neutral.
Of course, the irony in this is debt collectors are notorious for ridiculing consumers about not being able to handle their finances, yet CACH has joined the list of collectors that bought debt at 5 cents on the dollar which couldn't meet their obligations.
If you are being sued on a consumer debt in Indiana, please call the Consumer Law Office of Steve Hofer. I will evaluate your case at no cost to you.
If you are being sued by CACH LLC, your case is expected to go on without interruption. There may be a snag in getting documents (even more than usual) because of the need to integrate CACH's record system with Resurgent's.
If you are suing CACH, then you have my sympathy. Your case will likely be caught up in the bankruptcy and likely be stalled for a good long while at best.
In my opinion, Resurgent (and its subsidiary LVNV) is neither better nor worse than CACH, so from a consumer's point of view, it's probably neutral.
Of course, the irony in this is debt collectors are notorious for ridiculing consumers about not being able to handle their finances, yet CACH has joined the list of collectors that bought debt at 5 cents on the dollar which couldn't meet their obligations.
If you are being sued on a consumer debt in Indiana, please call the Consumer Law Office of Steve Hofer. I will evaluate your case at no cost to you.
Thursday, March 16, 2017
How to Record Debt Collection Calls on iPhone and Android
Often, to build a good legal case under the Fair Debt Collection Practices Act (FDCPA) or Telephone Consumer Privacy Act (TCPA) it is helpful - sometimes crucial- to have recorded phone calls. Back in formative years with landlines, we did this with either a suction cup adapter or inline box from radio shack - going into a cassette recorder. Of course these days, cell phones - smart phones - rule, so recording is a bit more complicated - or not.
The simplest way to record a phone call now is to put the phone on speaker phone, and just record into another phone's memo recording app.
There are more complicated methods. Here's a recently-updated webpage discussing recording on iPhone. http://www.digitaltrends.com/mobile/how-to-record-calls-iphone/
Here's a 2016 article with 5 call recording apps for Android. http://joyofandroid.com/best-android-call-recorder-apps/
Remember that when you are recording phone calls you have to pay attention to wiretapping laws. You can NEVER record a phone conversation where you are not one of the participants in the call. That is true wiretapping. Most states are "single party" states which means if one party (you) is aware of the recording, it is legal to record the call, even without telling the other party. A few states are "two party" consent states where both parties have to consent to the recording. According to information I found on the web, the following states are two-party consent states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington. If you are in a one-party state and you record a call where the other party is in a two-party state, you won't be prosecuted for the call, but there may be limitations on how you can use it.
The simplest way to record a phone call now is to put the phone on speaker phone, and just record into another phone's memo recording app.
There are more complicated methods. Here's a recently-updated webpage discussing recording on iPhone. http://www.digitaltrends.com/mobile/how-to-record-calls-iphone/
Here's a 2016 article with 5 call recording apps for Android. http://joyofandroid.com/best-android-call-recorder-apps/
Remember that when you are recording phone calls you have to pay attention to wiretapping laws. You can NEVER record a phone conversation where you are not one of the participants in the call. That is true wiretapping. Most states are "single party" states which means if one party (you) is aware of the recording, it is legal to record the call, even without telling the other party. A few states are "two party" consent states where both parties have to consent to the recording. According to information I found on the web, the following states are two-party consent states: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington. If you are in a one-party state and you record a call where the other party is in a two-party state, you won't be prosecuted for the call, but there may be limitations on how you can use it.
Tuesday, March 14, 2017
Nonbank Servicers Causing Havoc with Troubled Homeowners
The New York Post recently published an article about a troubling phenomenon that I have not seen anywhere else in the mainstream press, and that is the rise of nonbank servicers (NBS) handling home mortgages. I ran into this first a number of years ago with Ocwen Home Servicing. Ocwen got slapped pretty hard in 2012-2013 by the Consumer Financial Protection Bureau & the California Attorney General, agreeing to pay fines and penalties of several billion dollars.
The New York Post article points out that nonbank servicers have gone from 7% of the market in 2012 to 25% in 2015. I would guess that at this point the NBS share of mortgages that are in foreclosure or preforeclosure is probably around 50% and rising. This is important because the NBSs are not subject to the terms of the national mortgage settlement. This is important because as a general rule a company holding a mortgage has no duty to modify to prevent foreclosure. The national mortgage settlement created a framework for evaluating applications for mortgage relief, standards for granting relief, and prohibited moving forward with foreclosure while a mortgage relief application was pending - a practice called "dual-tracking". Other than the mortgage settlement, the only real mandates for modification come from the rules of the mortgage insurers, and those are a joke. There are state laws that attempt to impose penalties for unfair practices in mortgage servicing, but there are more holes than fabric in the patchwork quilt of state laws.
The big daddy these days among the nonbank servicers is Caliber Home Loans. Caliber is starting to draw some scrutiny for the way it is servicing loans, and it has been the subject of numerous complaints by consumers whose applications for mortgage relief were either mishandled, ignored or both. Caliber is the servicing arm of Loan Star Funds, a private equity firm that if you believe the New York Post article is worth $60 billion. Lone Star Funds got this big because they buy troubled mortgages at a discount, usually from insurers who already covered the initiating bank's losses, entities like FHA, Freddie Mac and Fannie Mae. If you have a loan that was bought by LSF9 Master Participation Trust. That's a Lone Star fund. Sometimes Lone Star doesn't buy the loan from the guarantor, it buys it from the actual lender. I have received complaints that the homeowner's mortgage was sold by the original mortgage company to LSF9 where the foreclosure took place and then back to the original mortgage company. In my opinion, that is a whitewashing scam that is designed to get around the rules of the National Mortgage Settlement. If you had a Wells Fargo loan that was sold to LSF9 Master Participation Trust or had its servicing transferred to Caliber Home Loans, you should pay attention to what happens to it after the foreclosure sale. You may have a very narrow window to make your complaints count and perhaps bring a legal claim between the time the home is sold to the lender after the foreclosure and the time you are forced to vacate. If this has happened to you, you need to file a complaint with the CFPB and your state attorney general. Find yourself a NACA consumer advocate lawyer at www.consumeradvocates.org.
http://nypost.com/2016/04/16/non-bank-servicers-creating-bigger-mortgage-problems/?utm_source=facebook&utm_medium=site%20buttons&utm_campaign=site%20buttons
The New York Post article points out that nonbank servicers have gone from 7% of the market in 2012 to 25% in 2015. I would guess that at this point the NBS share of mortgages that are in foreclosure or preforeclosure is probably around 50% and rising. This is important because the NBSs are not subject to the terms of the national mortgage settlement. This is important because as a general rule a company holding a mortgage has no duty to modify to prevent foreclosure. The national mortgage settlement created a framework for evaluating applications for mortgage relief, standards for granting relief, and prohibited moving forward with foreclosure while a mortgage relief application was pending - a practice called "dual-tracking". Other than the mortgage settlement, the only real mandates for modification come from the rules of the mortgage insurers, and those are a joke. There are state laws that attempt to impose penalties for unfair practices in mortgage servicing, but there are more holes than fabric in the patchwork quilt of state laws.
The big daddy these days among the nonbank servicers is Caliber Home Loans. Caliber is starting to draw some scrutiny for the way it is servicing loans, and it has been the subject of numerous complaints by consumers whose applications for mortgage relief were either mishandled, ignored or both. Caliber is the servicing arm of Loan Star Funds, a private equity firm that if you believe the New York Post article is worth $60 billion. Lone Star Funds got this big because they buy troubled mortgages at a discount, usually from insurers who already covered the initiating bank's losses, entities like FHA, Freddie Mac and Fannie Mae. If you have a loan that was bought by LSF9 Master Participation Trust. That's a Lone Star fund. Sometimes Lone Star doesn't buy the loan from the guarantor, it buys it from the actual lender. I have received complaints that the homeowner's mortgage was sold by the original mortgage company to LSF9 where the foreclosure took place and then back to the original mortgage company. In my opinion, that is a whitewashing scam that is designed to get around the rules of the National Mortgage Settlement. If you had a Wells Fargo loan that was sold to LSF9 Master Participation Trust or had its servicing transferred to Caliber Home Loans, you should pay attention to what happens to it after the foreclosure sale. You may have a very narrow window to make your complaints count and perhaps bring a legal claim between the time the home is sold to the lender after the foreclosure and the time you are forced to vacate. If this has happened to you, you need to file a complaint with the CFPB and your state attorney general. Find yourself a NACA consumer advocate lawyer at www.consumeradvocates.org.
http://nypost.com/2016/04/16/non-bank-servicers-creating-bigger-mortgage-problems/?utm_source=facebook&utm_medium=site%20buttons&utm_campaign=site%20buttons
Update Regarding LSF9 Master Participation Trust
My most popular post ever on this blog had to do with LSF9 Master Participation trust. I have been contacted by numerous people who either are facing foreclosure on an LSF9 Property or want to buy a distressed LSF9 property. It has gotten to the point where these calls are interfering with my business. Still, I understand people are craving information. I wish I had more to give them. I put together this update to my post of 9/2015 which I also appended to the original post. There are some good comments on the original post. So if you see this post. please go to the original post here.
UPDATE 3/14/2017
Since I wrote this blog post a year and a half ago, it has been by far my most popular post, with over 14,000 hits. I have also gotten emails from lots of frustrated people trying to deal with LSF-9. Most of these have either been people who are either trying to buy LSF9 properties or who are facing foreclosure on an LSF-9 mortgage. I have this to say about each category:
IF YOU ARE FACING FORECLOSURE ON A MORTGAGE OWNED BY LSF9 Master Participation Trust, or maybe LSF8 or LSF10 or whatever, get advice from an experienced consumer lawyer IN YOUR AREA. To find one in your area use the National Association of Consumer Advocates' Find an Attorney page. I can't represent you if you are not a resident of Indiana.
IF YOU ARE TRYING TO BUY A PROPERTY OWNED BY LSF-9 AND CAN'T FIND ANYBODY TO CONTACT, good luck, I can't help you. You can write to Caliber. You can write to the lawyer handling the foreclosure case. You can write to Lone Star Funds, the parent company, at the address below which I took from their website.
UPDATE 3/14/2017
Since I wrote this blog post a year and a half ago, it has been by far my most popular post, with over 14,000 hits. I have also gotten emails from lots of frustrated people trying to deal with LSF-9. Most of these have either been people who are either trying to buy LSF9 properties or who are facing foreclosure on an LSF-9 mortgage. I have this to say about each category:
IF YOU ARE FACING FORECLOSURE ON A MORTGAGE OWNED BY LSF9 Master Participation Trust, or maybe LSF8 or LSF10 or whatever, get advice from an experienced consumer lawyer IN YOUR AREA. To find one in your area use the National Association of Consumer Advocates' Find an Attorney page. I can't represent you if you are not a resident of Indiana.
IF YOU ARE TRYING TO BUY A PROPERTY OWNED BY LSF-9 AND CAN'T FIND ANYBODY TO CONTACT, good luck, I can't help you. You can write to Caliber. You can write to the lawyer handling the foreclosure case. You can write to Lone Star Funds, the parent company, at the address below which I took from their website.
Lone Star Global Acquisitions, Ltd.
- Lone Star North America Acquisitions, LLC
2711 North Haskell AvenueSuite 1700 (and Suite 2150)Dallas, Texas 75204USA214-754-8300
Are ANY Timeshare Relief Companies Legitimate?
I was asked recently if any of the companies advertising relief from timeshares are legitimate. I had to answer "I don't know if ANY are legitimate, but I don't know of any legitimate ones. What can you do if you are in a timeshare that you can't afford? Can a lawyer help?
Can a lawyer help? The honest answer is sometimes. For almost 17 years I worked for UAW Legal Services Plans, and when I was there I got to help a lot of people with timeshare problems, and the best thing is that I didn't have to charge them a dime, because the UAW Legal Services Plan was an employee benefit. I went back into private practice in 2014, and since then I haven't gotten a lot of calls about timeshares, but there are signs things are picking up. As a private lawyer though, I have to treat timeshare cases like any other case, and I have to get paid. I like to get results for my clients though. Sometimes you can do that with a timeshare and sometimes you can't.
In the paragraphs below, I discuss my methodology of analyzing and remedying timeshare problems. As you read this, contrast this methodology vs the promises of a timeshare relief company. An ethical lawyer doesn't promise results. An ethical lawyer lawyer treats every case differently. An ethical lawyer puts any prepaid fee in the trust account until he or she performs the work. An ethical lawyer informs the client what he/she did to earn the fee.
EASIEST CASES - DEEDED INTEREST - CONTRACT UP TO DATE
When analyzing timeshare cases the first thing I do is look to see if the contract is in default or if it is up-to-date. If it is up-to-date, these are the cases most likely to get relief on an affordable basis. If it is a deeded interest and the contract is up to date, and if the timeshare company is one of the more reputable ones (everything is relative), I suggest the consumer send a letter to the timeshare company claiming economic hardship and offering to sign back over the timeshare to the company in exchange for being let out of the contract going forward. Often the timeshare company will honor this request, and will send you a quitclaim deed to get you out of your timeshare. You may not even need assistance of an attorney to help you, and it you do, it may be just to look over the paperwork. ( If you have a problem in doing this because you think you should get cash money for your timeshare, then good luck to you, your odds of being disappointed are pretty close to 100%. Your odds of being scammed by a time share selling company approach 100%.)
HARDER CASE - CONTRACT UP TO DATE NON-DEEDED INTEREST OR POINTS MODEL
A hardship letter might work in this case as well, but there is more incentive to back it up with an attorney letter just to let the timeshare company know that it might be more expensive for them to fight you than to just give in. In these cases, I typically do an analysis of the sale under the Timeshare Act and point out any potential illegalities in the sale.
HARDEST CASES - CONTRACT NOT UP TO DATE - DEEDED OR NON-DEEDED INTEREST
If you are behind on your contract, annual fees, or both, there's no simple answer. Each one of these cases are different. How I approach the case depends upon how the potential client comes to me. If he or she comes to me because he/she is getting a dunning letter from a collection agency, I first look at whether the collection agency might have violated the Fair Debt Collection Practices Act. Why? Because if I can spot a Fair Debt Collection Practices Act violation, I might be able to represent the consumer at no out-of-pocket fee.
If the person comes to me because he or she is being dunned for overdue timeshare bills by the company and just wants out, I have to interview the consumer in great detail and look at the documents to see if I can spot a violation of the Indiana Timeshare and Camping Club Act (most states have something similar), Indiana Code 32-32-3-1 et seq. This is a time-consuming process and typically costs at least $600. If I spot a potential violation, I typically start a letter-writing process, and my fee depends upon the amount of time needed to complete the objective. Note: if you are paying monthly on a contract, even to a finance company, if you have a valid claim against the seller, you can raise the claim as a defense to paying the finance company under the FTC Holder Rule. I don't suggest that you stop paying the finance company unless it is under the active advice and monitoring of an attorney.
WHAT TO DO IF YOU ARE BEING SUED BY A TIMESHARE COMPANY OR COLLECTOR FOR A TIMESHARE COMPANY
Don't give up! If you are being sued over a timeshare debt, it is crucial that you have the lawsuit documents reviewed by an experienced consumer lawyer. You can find one through the National Association of Consumer Advocates' "Find an Attorney" web page. Please don't call me if you don't reside in Indiana or if the timeshare is not in Indiana. If you are in Indiana though, I welcome your call.
Lawsuits by timeshare companies can often be fought off and resolved for less than what they are claiming from you, including attorney fees. In addition, an attorney can often negotiate payment plans that are less than could be garnished from you if they get a judgment against you. An attorney can evaluate whether bankruptcy is an option for you. Occasionally, attorneys can get back money you already paid or even extra damages for illegal conduct.
WHAT IF I HAVE ALREADY BEEN SCAMMED BY A TIMESHARE RELIEF COMPANY?
If you have been scammed by a timeshare selling or timeshare relief company, contact a consumer attorney through the link above. If the attorney can spot fraud or other illegal activity, the attorney might take the case on a contingency fee basis, meaning, he/she might take the case based on a fee to be recovered from the other side. You should also file a complaint with the attorney general's office in your state and in the state where the scammer is operated.
Can a lawyer help? The honest answer is sometimes. For almost 17 years I worked for UAW Legal Services Plans, and when I was there I got to help a lot of people with timeshare problems, and the best thing is that I didn't have to charge them a dime, because the UAW Legal Services Plan was an employee benefit. I went back into private practice in 2014, and since then I haven't gotten a lot of calls about timeshares, but there are signs things are picking up. As a private lawyer though, I have to treat timeshare cases like any other case, and I have to get paid. I like to get results for my clients though. Sometimes you can do that with a timeshare and sometimes you can't.
In the paragraphs below, I discuss my methodology of analyzing and remedying timeshare problems. As you read this, contrast this methodology vs the promises of a timeshare relief company. An ethical lawyer doesn't promise results. An ethical lawyer lawyer treats every case differently. An ethical lawyer puts any prepaid fee in the trust account until he or she performs the work. An ethical lawyer informs the client what he/she did to earn the fee.
EASIEST CASES - DEEDED INTEREST - CONTRACT UP TO DATE
When analyzing timeshare cases the first thing I do is look to see if the contract is in default or if it is up-to-date. If it is up-to-date, these are the cases most likely to get relief on an affordable basis. If it is a deeded interest and the contract is up to date, and if the timeshare company is one of the more reputable ones (everything is relative), I suggest the consumer send a letter to the timeshare company claiming economic hardship and offering to sign back over the timeshare to the company in exchange for being let out of the contract going forward. Often the timeshare company will honor this request, and will send you a quitclaim deed to get you out of your timeshare. You may not even need assistance of an attorney to help you, and it you do, it may be just to look over the paperwork. ( If you have a problem in doing this because you think you should get cash money for your timeshare, then good luck to you, your odds of being disappointed are pretty close to 100%. Your odds of being scammed by a time share selling company approach 100%.)
HARDER CASE - CONTRACT UP TO DATE NON-DEEDED INTEREST OR POINTS MODEL
A hardship letter might work in this case as well, but there is more incentive to back it up with an attorney letter just to let the timeshare company know that it might be more expensive for them to fight you than to just give in. In these cases, I typically do an analysis of the sale under the Timeshare Act and point out any potential illegalities in the sale.
HARDEST CASES - CONTRACT NOT UP TO DATE - DEEDED OR NON-DEEDED INTEREST
If you are behind on your contract, annual fees, or both, there's no simple answer. Each one of these cases are different. How I approach the case depends upon how the potential client comes to me. If he or she comes to me because he/she is getting a dunning letter from a collection agency, I first look at whether the collection agency might have violated the Fair Debt Collection Practices Act. Why? Because if I can spot a Fair Debt Collection Practices Act violation, I might be able to represent the consumer at no out-of-pocket fee.
If the person comes to me because he or she is being dunned for overdue timeshare bills by the company and just wants out, I have to interview the consumer in great detail and look at the documents to see if I can spot a violation of the Indiana Timeshare and Camping Club Act (most states have something similar), Indiana Code 32-32-3-1 et seq. This is a time-consuming process and typically costs at least $600. If I spot a potential violation, I typically start a letter-writing process, and my fee depends upon the amount of time needed to complete the objective. Note: if you are paying monthly on a contract, even to a finance company, if you have a valid claim against the seller, you can raise the claim as a defense to paying the finance company under the FTC Holder Rule. I don't suggest that you stop paying the finance company unless it is under the active advice and monitoring of an attorney.
WHAT TO DO IF YOU ARE BEING SUED BY A TIMESHARE COMPANY OR COLLECTOR FOR A TIMESHARE COMPANY
Don't give up! If you are being sued over a timeshare debt, it is crucial that you have the lawsuit documents reviewed by an experienced consumer lawyer. You can find one through the National Association of Consumer Advocates' "Find an Attorney" web page. Please don't call me if you don't reside in Indiana or if the timeshare is not in Indiana. If you are in Indiana though, I welcome your call.
Lawsuits by timeshare companies can often be fought off and resolved for less than what they are claiming from you, including attorney fees. In addition, an attorney can often negotiate payment plans that are less than could be garnished from you if they get a judgment against you. An attorney can evaluate whether bankruptcy is an option for you. Occasionally, attorneys can get back money you already paid or even extra damages for illegal conduct.
WHAT IF I HAVE ALREADY BEEN SCAMMED BY A TIMESHARE RELIEF COMPANY?
If you have been scammed by a timeshare selling or timeshare relief company, contact a consumer attorney through the link above. If the attorney can spot fraud or other illegal activity, the attorney might take the case on a contingency fee basis, meaning, he/she might take the case based on a fee to be recovered from the other side. You should also file a complaint with the attorney general's office in your state and in the state where the scammer is operated.
Thursday, March 2, 2017
The New "Maggot Mile": Debt Relief Companies in Boca Raton, Florida
For a while, in the late 1980s, I lived in South Florida. At that time, penny stock fraud was a huge problem, and some of the sleaziest penny stock brokerage houses operated out of sweatshop call centers set up in Boca Raton, Florida. Because all of these brokerages were so close to each other, the area developed the nickname "Maggot Row", sometimes called "The Maggot Mile". It looks like the maggots have switched to a new industry, "debt relief". I put it in quotations because I don't think a lot of their customers feel very relieved.
Boca Raton Florida has an estimated population of around 92,000 people. Look at all the "debt relief" companies that came up on a simple search at manta.com.
1st National Credit Services Corporation
Absolute Debt Solution
Accelerated Debt Consolidation
Acci Inc.
Advanced Credit Solutions Inc.
American Consolidated Debt
American Corporate Turnaround, Inc.
American Debt
American Debt Negotiators
American Debt Settlement Solutions, Inc.
Amerifinancial Solutions, LLC
A Plus Financial Solutions
Bmv Corporation
Capital Debt Relief
Clear Debt
Consumer Credit Counseling Service
Consumer Credit Counseling Service of South Florida
Consumer Debt Counselor Group
Consumer Debt Counselor Group LLC
Credicare Credit Counseling
Credit Repair
Credit Repair Doctor
Credit Restoration
Dartmouth Foundation, Inc.
Debt B Gone
Debt Franchise Inc.
Debt Management Solutions
Debtmet LLC
Debt Pro Assoc LLC
Debt Relief Group Inc.
Debt Relief Law Florida
Debt Relievers Inc.
Debt Remedy Consultants
Debt Remedy Solutions LLC
Debt Solution Partners
Deudas Consolidates Inc.
Freedom Debt Management
Great American Credit Repair
ioudebtsolutions.com
Managed Debt Solutions
New You Credit Repair
Oasis Credit Solutions
Premier Debt Center of Boca Raton
Resolvly
Say No to the Bank
Student Debt Experts
This is 46 firms identified by Manta as debt relief companies in Boca Raton alone. A few of these might not technically be debt relief companies, but on the other hand, this list does not include a number of attorneys who are used as fronts for debt relief companies, and some companies might have been missed completely.
If these firms have 20 employees on average, roughly 1% of the population of Boca Raton works in the Debt Relief industry, and if you assume that half of the population of Boca Raton is made up of either retired people or children, then it would be 2% of the population of Boca Raton works in the debt relief industry.
While it is theoretically possible that not all debt relief companies are running a scam, there are some practices that are clearly outside of the bounds of propriety:
1. Selling debt relief by telemarketing. It is virtually impossible for debt relief telemarketers to comply with the FTC Telemarketing Rule. Most of them don't even try. If the telemarker approaches you on behalf of an attorney or law firm, understand that almost every state has rules against soliciting clients, especially paying third parties to solicit clients.
2. Nonrefundable fees. The FTC and various states have rules about when debt relief companies are allowed to take a fee. To overly simplify: the fee received must be proportional to the debt actually negotiated and the fee must only be taken after the debt was reduced.
3. The names of other companies showing up in either the servicing of accounts or the processing of accounts.
4. Any involvement of an attorney in the mass settlement of debts except for the practice of bankruptcy law.
5. Any talk of "natural law" or "sovereign immunity".
I could go on and on. Investigate a company before you hire them. Ask for references. Just don't give one a pile of money. If you are in a contract with a debt relief company and you want to know if you have to keep paying on the contract or if maybe you can get your money back, contact a consumer attorney in your area through the National Association of Consumer Advocates' "Find an Attorney" page.
Boca Raton Florida has an estimated population of around 92,000 people. Look at all the "debt relief" companies that came up on a simple search at manta.com.
1st National Credit Services Corporation
Absolute Debt Solution
Accelerated Debt Consolidation
Acci Inc.
Advanced Credit Solutions Inc.
American Consolidated Debt
American Corporate Turnaround, Inc.
American Debt
American Debt Negotiators
American Debt Settlement Solutions, Inc.
Amerifinancial Solutions, LLC
A Plus Financial Solutions
Bmv Corporation
Capital Debt Relief
Clear Debt
Consumer Credit Counseling Service
Consumer Credit Counseling Service of South Florida
Consumer Debt Counselor Group
Consumer Debt Counselor Group LLC
Credicare Credit Counseling
Credit Repair
Credit Repair Doctor
Credit Restoration
Dartmouth Foundation, Inc.
Debt B Gone
Debt Franchise Inc.
Debt Management Solutions
Debtmet LLC
Debt Pro Assoc LLC
Debt Relief Group Inc.
Debt Relief Law Florida
Debt Relievers Inc.
Debt Remedy Consultants
Debt Remedy Solutions LLC
Debt Solution Partners
Deudas Consolidates Inc.
Freedom Debt Management
Great American Credit Repair
ioudebtsolutions.com
Managed Debt Solutions
New You Credit Repair
Oasis Credit Solutions
Premier Debt Center of Boca Raton
Resolvly
Say No to the Bank
Student Debt Experts
This is 46 firms identified by Manta as debt relief companies in Boca Raton alone. A few of these might not technically be debt relief companies, but on the other hand, this list does not include a number of attorneys who are used as fronts for debt relief companies, and some companies might have been missed completely.
If these firms have 20 employees on average, roughly 1% of the population of Boca Raton works in the Debt Relief industry, and if you assume that half of the population of Boca Raton is made up of either retired people or children, then it would be 2% of the population of Boca Raton works in the debt relief industry.
While it is theoretically possible that not all debt relief companies are running a scam, there are some practices that are clearly outside of the bounds of propriety:
1. Selling debt relief by telemarketing. It is virtually impossible for debt relief telemarketers to comply with the FTC Telemarketing Rule. Most of them don't even try. If the telemarker approaches you on behalf of an attorney or law firm, understand that almost every state has rules against soliciting clients, especially paying third parties to solicit clients.
2. Nonrefundable fees. The FTC and various states have rules about when debt relief companies are allowed to take a fee. To overly simplify: the fee received must be proportional to the debt actually negotiated and the fee must only be taken after the debt was reduced.
3. The names of other companies showing up in either the servicing of accounts or the processing of accounts.
4. Any involvement of an attorney in the mass settlement of debts except for the practice of bankruptcy law.
5. Any talk of "natural law" or "sovereign immunity".
I could go on and on. Investigate a company before you hire them. Ask for references. Just don't give one a pile of money. If you are in a contract with a debt relief company and you want to know if you have to keep paying on the contract or if maybe you can get your money back, contact a consumer attorney in your area through the National Association of Consumer Advocates' "Find an Attorney" page.
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