True or false: My children will be stuck with my timeshare when I die. Mostly false.

 There is a new generation of timeshare "relief" companies out there. The names I keep hearing are Wesley Financial Group and Timeshare Exit.  This generation of timeshare relief companies don't seem to be drawing the same level of criticism and scrutiny as what I saw in the 1990s. Maybe that's because this generation of companies don't promise to "sell" your timeshare.  I have never seen a company that promised to sell your timeshare be anything but a scam. It is very possible for a company to promise "relief" from a timeshare and deliver, but you should understand at the beginning what type of "relief" is being proposed and make sure the costs are worth the benefits.  

In the past 20 years "Points" based timeshares have mostly taken the place of "deeded" timeshares, and that's probably a good thing. Deeded timeshares were/are nightmares in any number of ways.  From what I can tell, point-based timeshares are easier to get out of because most of the companies are content if you just give up your initial "investment", and they don't seem to have the desire to chase you for continuing support. 

There is one thing that the ads for timeshare relief companies may leave you with the wrong impression about, and that is that your children will be stuck with your timeshare when you die.  That isn't necessarily true. They won't automatically be stuck with your timeshare when you die, but they could be if they and you aren't smart about things. Because timeshares are easier to get out of than they used to be, you might find that it costs less to pay your timeshare company what they want to get out of it than to pay a timeshare relief company.  You also might find your cheapest option is to simply hold onto the timeshare until you die and let let the timeshare lapse upon your death. (The timeshare company may have a creditor's claim for dues and assessments, but most people die without ever opening a probate estate, and a lot of creditors' claims never get paid.)  

The key thing for you to know and for your children to know, is they will not be liable on the timeshare without an act of ACCEPTANCE on their part. Whether you try to give them the timeshare while you are alive, or upon your death through an estate or intestate succession, if they refuse to accept the timeshare they should not face continuing liability. Now that means that they can't accept any benefit from the timeshare.  Similarly, if someone leaves you a timeshare when you die, you are not liable unless you ACCEPT it. 

If you own a timeshare, when you are doing your estate planning, I suggest you talk to your children (or other heirs or devisees) prior to making your will, to see if they WANT your timeshare upon your death. It is very important to explain to them the expected and potential costs, the fees and assessments, any amount due under the purchase contract, and the benefits and limitations on usage as well as the process , costs and limitations on week trading.  Let them know that they don't have to take it.  If they want it, understand the costs and can handle the costs, fine, give it to them in your will. (When you die, if they change their minds they can still reject it or refuse to accept it.) Otherwise, consider specifically saying in your will that the interest should either be transferred back to the timeshare company or no action should be taken regarding the timeshare interest.  There are some companies out there that say they accept timeshares as charitable donations. I have not researched any of these companies, and I can't say one way or another whether using one is a good idea.  

If you are ever sued by a company collecting any type of timeshare obligation, or even receive a collection letter, I suggest you contact a consumer attorney in your area who is a member of the National Association of Consumer Advocates. You can find a NACA consumer attorney at www.consumeradvocates.org/find-an-attorney. 

Note: Please don't call me if you have a problem or beef with your timeshare company.  I can only represent timeshare buyers who live in Indiana, and I don't have much if any space on my docket at present for them.  Also note that I only am licensed to practice law in Indiana. I know that most states require acceptance to make a valid gift, I can't guarantee that ALL states have the same rule.  Before you take an action regarding your timeshare, I suggest you tak to a lawyer in your state.  I have seen timeshare companies DENY that acceptance is required to make a gift even in states where it clearly is. Sometimes you have to stick to your guns.  

What happens if AFC Gets a Judgment Against Me?

 Automotive Finance Corporation, commonly known as AFC, has been suing more of its customers in Marion County (Indianapolis), Indiana than in previous times.  In most of these cases, AFC gets a default judgment, then they begin post-judgment collections.

If AFC takes a judgment against you what can you expect? You can expect that any national financial institution that you have dealings with, if AFC knows about it, AFC will send interrogatories to that institution to find out about your accounts, and will attempt to seize any non-exempt funds from those institutions.

Recently, we have found out that AFC may also try to seize funds owed to you or the dealership from credit card processors such as Square Inc. In addition we have seen AFC go after any money from payment transfer companies such as Zelle (Early Warning Services, LLC).  We haven't seen them go after Venmo, but we wouldn't be surprised if they did.  

These collection activities are legal.  If you want to keep AFC from attempting to seize assets involuntarily, if you qualify you can seek bankruptcy protection. In the alternative, you may be able to negotiate a payment plan or post-judgment settlement with AFC.  We can assist you, if you want to do this, please call us at 317-662-4529.   

Do you have an Issue with IMG or Seven Corners over a Wrongfully Denied Travel Insurance Claim?

 We are investigating the case of a claims denial by IMG insurance over a travel policy.  It has come to our attention that policy holders from all over may be forced to litigate cases against IMG and Seven Corners in Indiana thanks to policy language setting Indiana as the venue.  If you are looking for an attorney to handle a case against either of these companies, please feel free to call us at 317-662-4529.  

Art Institute of Indianapolis and Elements Financial Federal Credit Union - Possibility of Private Student Loan Assistance

I was vaguely aware of the Art Institutes, that it was a big conglomerate of private for-profit colleges, that it shut down in 2018, and that there was a plan for forgiveness of certain federal student loans due to alleged fraud by the university.  Until recently though, I had never been contacted by one of the students.

That changed this week.  An issue came up regarding a private student loan through Elements Financial federal Credit Uunion for the Art Institute of Indianapolis.  

It appears that the Art Institute may have referred students to Elements Financial, if so, students may have an argument under the FTC Holder Rule that any claim they would have against Art Institute might be raised as a defense or partial defense against repayment to Elements Financial.  

This is a complex topic.  If you went to Art Institute of Indianapolis and were financed by Elements Financial or any other lender that was referred to you by the school, I am interested in talking to you, and we might have a shot at getting you some help.  Note that right now I am not dealing in cases involving FEDERAL student loans. 

If you went to any other Art Institute, or have issues regarding federal student loans, I urge you to contact an attorney in your area through the NACA consumer lawyer referral service at www.consumeradvocates.org/find-an-attorney.  

A general information article I found is linked below. I cannot vouch for the accuracy of the entire article, so get a second source before acting on anything contained in this link. 

https://studentloanbattle.com/art-institute-loan-forgiveness.html

Legal Fees in Perspective $2,750 vs $2.75 million - Bill Cosby

A news story today that Bill Cosby still owes $2.75 million in legal fees. We have no idea how much he paid over time, but there is no question that Bill Cosby was not a poor man going into his criminal case, I would expect that the unpaid balance is less than half of what the representation ultimately cost.

What strikes me is the disparity in resources people can put into different legal cases. I do a lot of consumer and business debt defense cases.  My fees for a standard business case range from $2,500 to $5000, because that's all the businesses can afford. For consumer cases, my fees are sometimes lower - when I can afford to do those cases.  That's on the order of 1/1000 what Bill Cosby put into his criminal defense case -- or to put it another way, for every 1 hour I can put into a case, Bill Cosby's lawyers put in a half year's worth of work - and he still lost. 

What I have learned is to make a defense case useful and worthwhile on a budget, you have to carefully plan your strategy. You must have well-defined goals and objectives, and a pathway to get there. 

Nextgear and AFC updates in Covid Time

We continue to handle a lot of floorplan defense lawsuits, defending dealers sued by Nextgear and AFC.  They are still filing new cases even though the court systems have been slowed by COVID-19.  In general, our perception is that Nextgear has been willing to work with us in recognizing the new reality of Covid-affected dealers.  AFC has been much more difficult. 

Body Attachments for Contempt of Court in Indiana, Some Welcome Changes

For years, Indiana has been a center for injustice regarding the issuance of body attachments for unpaid civil judgments.  A body attachment is basically an arrest. Technically, it is not for failure to pay the judgment, rather, it is for contempt of court for failing to attend a proceeding supplemental to judgment to give information to the plaintiff for purposes of collecting the judgment. That being said there are a number of legitimate reasons why a person might not attend a proceeding supplemental. The most common is they never know about the proceeding supplemental in the first place. Other reasons might be lack of child care, lack of transportation, inability to read and understand the legal pleadings, illness or general incompetence. 

Both federal and state law prohibits imprisonment for debt. Section 22 of the Indiana Constitution provides as follows:

Section 22. Debts--Imprisonment exemption

Section 22. The privilege of the debtor to enjoy the necessary comforts of life, shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale, for the payment of any debt or liability hereafter contracted: and there shall be no imprisonment for debt, except in case of fraud.

For at least as long as I've been an attorney, 33 years and counting, courts have issued body attachments in the form of a bench warrant, an arrest warrant. . It has worked differently in different counties, but if a law enforcement officer seizes the person, the law enforcement officer is supposed to take the person to the court, for questioning about why the person did not attend the proceeding supplemental.  On many occasions the person was seized and the court was not in session, so the person had to stay in jail over a weekend, sometimes an extended holiday weekend. 

In recent years there has been some attention in the press to the issue of poor people spending time in jail because they can't pay civil judgments, and it looks like it is finally starting to pay dividends in court rules. Today I was reading Delaware County's local rules in preparation for a case, and I found out that they recently adopted rules greatly reducing the power to issue a bench warrant on a civil judgment.  Essentially the defendant has to prove actual notice and if the warrant is issued, it must be done during court hours and the defendant is taken directly to the court. 

If you are subjected to a body attachment relating to a civil judgment in Indiana, we will talk to you and look into your claim at no charge.  Often plaintiffs and their attorneys make mistakes in the process, and these mistakes could give you the opportunity to collect damages in a lawsuit.  Please call us at 317-662-4529 if you have any questions.  

Lenovo Flex-14 screen flickeringI

Late last year my main Lenovo laptop had to go in the shop. To get me by while it was out of service I bought a smaller, lighter, cheaper computer, a Lenovo Flex-14 "2 in 1". It was under $550, and I've generally been happy with it, but it has an occasional screen flickering. The screen will momentarily go black.  In my family, we have had Dell, Samsung, Asus and Lenovo Computers knocked out over screen issues, so I googled to see if this was a big problem with the Flex 14, and googling "Flex 14" and "flickering" yields 403,000 hits. 

Based on the hassles of backing up, packaging and shipping my other Lenovo machine twice for warranty repair, right now I don't think the problem is sufficiently bad enough to send back my computer.  I'm keeping an eye on it.

I don't have an intention of filing a lawsuit against Lenovo or even taking on one as a lawyer. To assist folks that might need to file one, I found this lawsuit against Lenovo for a claimed screen defect in the Flex 5 from 2017.  Here is the link.  https://www.classaction.org/media/gisairo-v-lenovo-united-states-inc.pdf.  This isn't my case. I have nothing to do with it.  For more information, contact the lawyer on the complaint. 

(For the Apple fanboys out there. We have had a number of Macbook Pros and Macbook Airs over the years, and most of our problems with those machines have been limited to bad external power supplies and cords to the power supplies.  Well, that and a Macbook Pro 13 would cost about three times what I paid for the Lenovo Flex 14.)

Chapter 5 Bankruptcy may be just the lifeline that troubled small businesses need.

Since I don't practice bankruptcy law, I am just now learning about the new Chapter 5 bankruptcy provision that went into effect February 2020.  Subchapter 5 is intended to be a simplified and less-costly alternative to a Chapter 11 reorganization. 

Chapter 5 is much like a Chapter 11, but there is no creditors committee. Effectively, it is a cram-down like Chapter 13. 

I still have to learn about how personal guarantees of business debt are handled because most of my small-business debt defense clients signed personal guarantees of the business's debt.  If creditors are allowed to bring action against the guarantors while the bankruptcy is pending it may be of little use.  We'll see. 

Here is a link to a bankruptcy law firm's explanation of Chapter 5. I am not associated with this firm, and I can't guarantee the accuracy of the. information given. Anyone interested in Chapter 5 should verify all information before acting upon it. 

https://rcbizjournal.com/2020/03/23/new-bankruptcy-law-could-be-a-blessing-in-upcoming-economic-blizzard/

Fears of "Death Trains" may support surprisingly robust COVID-19 car sales

There is speculaton that at least in some areas new and used car sales may be surprisingly robust even with business shutdowns and high unemployment due to the corona virus.  I totally get why people might get concerned commuting by train or bus before there is a vaccination for COVID-19. 

https://www.thetruthaboutcars.com/2020/05/death-train-vs-safe-car-sales-hypothesis-gains-new-evidence/

CARES ACT - suspends 10% penalty on retirement account withdrawals up to $100,000

The CARES Act, which was adopted in response to the Corona Virus/Covid-19 crises includes some important provisions regarding your protected retirement accounts.  Most people can withdraw up to $100,000 from the accounts without a penalty, and with an extended time to pay taxes that are due on the money. This should come in handy for some of our clients who are paying settlements on floorplan defense cases. 

If you are a senior and are lucky enough not to need a distribution from your account, the minimum distribution requirement is also suspended. This should help you form having to sell stocks at a crisis-level low point. 

https://www.nerdwallet.com/blog/investing/cashing-out-401k-covid-19/

You can't run a national economy with half of your workers stuck at home and not producing - OR CAN YOU?

Here we are about a month into the recognized part of the COVID-19 pandemic in the United States, and we are looking at at least a month and a half of "social distancing", and ironically, the more successful we are at social distancing, the longer the economic disruptions will last before there is "herd immunity."  We are only about two weeks into the mandatory closure of schools and businesses, and people are justifiably worried that the lack of people working and generating income will cause an economic catastrophe.

The fundamental thing that most of us get intuitively is that with half of us not making money, and not spending, how do you keep the entire economy from falling down like a house of cards.  Can you run the United States economy with one hand tied behind its back?  I argue that yes, you can, and yes we have already done it. We did it for four years during World War II. 

In World War II, we had full employment, but half our economic output was going into the war effort. We were producing at maximum volume, and yet, as far as our domestic economy is concerned, half of that production did nothing to benefit the domestic economy.  What if we pretended for the sake of economic planning, that all those people staying home because of social distancing were simply producing weapons that we weren't using, or they were part of our expeditionary force, which happened to not be fighting? 

The economy survived, and to a certain degree thrived because people were bringing in wages.  Those wages were paid directly or indirectly by the government. The government paid for these wages by raising taxes, selling war bonds, and deficit spending.  We also had rationing of certain items and price controls. 

There was nothing inherently wrong in the 2 trillion dollar emergency spending package that Congress passed in its first attempt at addressing this crisis; but what has to be done is to plan an economy over the next year and a half that looks a lot like the economy we had in World War II, but the difference will be we won't actually produce weapons we don't need.  We will, however, produce on an emergency basis all of the things that we find we do need, and if the excess labor is available, we build stored value from that labor in the form of long term public works progress which turns our current expense into long-term assets. 

There are some signs that some countries get this concept. Canada is planning on paying its citizens a stipend of $2,000/month, for example.  We have to get over the mental hump that not only is this possible, that it is sustainable over the likely course of this pandemic.  I think there is not better way to get people over this hump than to point out that not only can it be done, we've done it before, right here in the United States. 

Nextgear, Automotive Finance Corporation and the Covid-19 Pandemic

Attorney Keith Hagan and I have been defending dealers from suits by Nextgear for over two years. Nextgear has been filing about 1,000 suits per year in Hamilton County, Indiana, and that's in good economic times.  Automotive Finance Corporation (AFC) has been filing quite a few less than Nextgear in Marion County, Indiana.

We have generally been successful in cutting deals with Nextgear when our clients have enough assets or cash flow to make a serious offer.  AFC has been a tougher nut, but we have completed deals with them too. 

With the COVID-19 shutdowns, we are living in a different world now, but I'm not sure Nextgear has gotten the Memo. Nextgear is continuing to file lawsuits as if everything is normal.  Everything is not normal.  Independent dealers are looking at 3 months or more with virtually no revenue. Even thoughs who have left the business and are trying to make a new life find that bringing home a living income will be tough. 

I predict that the vast majority of the dealers and guarantors that Nextgear sues over the next 6 months, will ultimately just file bankruptcy.  We will still take cases from dealers who want our services (and we lowered our fees), but I will urge them not to settle if it means taking food off their table. 

If Nextgear wants to keep its customer base, it should suspend floorplan fees and curtailment requirements immediately. Otherwise, instead of 1,000 dealers to sue next year, they will have at least 10,000, or half their customers. 

If there is any good news for the folks who are sued by Nextgear, if after they get a judgment against you you eventually pick yourself up and turn around your financial life and start making a good income, it is possible to negotiate with Nextgear to get a discount on the judgment owed. We can help you with this.  As part of the deal, we can negotiate issues relating to the KO book.

I will update this post later, but I wanted to get something down to let people know that if they feel trapped by their floorplan lender, in the wake of the corona virus crisis, they aren't alone, and the system will have to adapt to make it possible to move forward. 

Are you an Indiana owner of a “bricked” Flywheel bike?

News outlets reported hat Flywheel apparently settled a patent dispute with Peloton eyeing to swap Flywheel by “bricking” all the at-home Flywheel bikes. According to news reports, Peloton is offering to swap a Flywheel bike for a refurbished one.

Buyers of Flywheel bikes who bought them new need to know that their bikes had an implied warranty of non infringement. Arguably, this means the right to a refund and, if the bike was financed through the seller, the buyer may have the right to a refund or the right to set off payments if the bike was financed by the seller. If our are from outside Indiana, don’t call me, but if you are an Indiana resident who has this problem, feel free to contact me.

https://apple.news/A0EtiC6XyTtWL_bILe611uw

Skype Unauthorized Charges

I have repeatedly had problems with Skype imposing unauthorized charges on my credit card.  Once you sign up for anything with Skype it is crazily difficult to cancel and make it stick.  It is worse than the old America Online.  

I googled "Skype" plus "Unauthorized charges" and it came up with 121,000 hits.  Skype is now owned by Microsoft. Microsoft needs to crack down on this company that has much worse business practices.  

Note do NOT call or email me if you have a problem with Skype, but feel free to comment in the comments to this post. I am not in a position to file a class action against Skype.  Instead, file a complaint with the Federal Trade Commission.   http://www.ftc.gov

An Exhausting time from Nextgear Settlements

Keith Hagan and I have had a crazy time dealing with a rush of summary judgment motions filed by Nextgear Capital, Inc. and hammering out settlements where-ever and however possible.  Luckily Nexgear's inside and outside counsel are ladies and gentlemen of honor, and they have been flexible with agreeing to extensions while we work things ut; otherwise we wouldn't get half these deals done, and it would cost our clients a lot more money.

Encouraging results in Nextgear Cases

We have had encouraging results lately in settling cases where Nextgear Capital Corporation sued our clients.  Nextgear filed summary judgment motions in over 40 of our cases in October and November 2019, and since that time we have been systematically trying to resolve these cases, and we've gotten through most of them. Quite frankly in more than one case that I thought our client would have no choice but bankruptcy we were able to work out a deal. 

Of course, not every case can be settled, and not every case should be settled.  We really do try to get to a win-win solution though.  Part of the credit for completing the recent rash of settlements, quite frankly, needs to go to Nextgear's litigation team.  They have shown flexibility in customizing deals to the situations our individual dealers find themselves in.  If they had taken a hard line in these cases, I think 90% of our clients would have had no choice but bankruptcy or an adverse judgment. 

The bottom line is that if you are sued by Nextgear or another floorplan lender in Indiana, even if you think your situation is hopeless, give us a call at 317-662-4529. 

Have you been sued by Automotive Finance Corporation in Indiana?

We have noticed an uptick in lawsuits by Automotive Finance Corporation (AFC) against dealers on floorplan loans here in our home state of Indiana. Over the past few years, we have handled more than a hundred floorplan lawsuits by Nextgear, but just a few by AFC. The reason was Nextgear has rather consistently filed about a hundred cases a month.  AFC, generally filed less than a tenth of that, at least until recent months that is.  Since last fall, AFC seems to have increased the number of cases it files in Indiana. 

If you are looking for an Indiana attorney who is experienced in Floorplan litigation, whether you have been sued by Nextgear, or AFC, or Carbucks, Westlake Flooring, Floorplan Express (Xpress), Auction Credit, City Auto Finance, Auto Use, or any other company, please call us at 317-662-4529.   

Have you had Self-driving or other Features removed from your Used Tesla?

Here's an interesting article on the Jalopnik site, describing the experience of a reader who bought a used Tesla Model S from a dealer who bought it from Tesla itself. According to the article, the vehicle was supposed to have Self-driving feature (including Auto Summon), as these features were included on the window sticker when sold to the dealer, and when the dealer sold the car to the consumer. When the consumer had the Tesla system serviced by the Tesla Dealer, the self-driving capability was deleted, with Tesla telling the buyer that that feature was not paid for. 

The article suggests that this is happening to other buyers.  If this happened to you, please email me, or call me at 317-662-4529.  You can even post a comment to this post.  I'd love to hear from you.  (Note, I'm not a Tesla-hater. I like the cars, but I do think everybody should get what they pay for,)




https://jalopnik.com/tesla-remotely-removes-autopilot-features-from-customer-1841472617

JG Wentworth

I just saw an advertisement for JG Wentworth.  They factor structured settlements and annuities.  Is that legal? Sometimes. But, just because a company is in business and advertises doesn't mean that everything they do is legal everywhere.  Keep in mind that where this is legal, consumers don't have the same disclosure requirements and protections that they do in consumer loans.  There may not be any real regulation in the implied interest rate in the transaction. 

Note that I have no cases against JG Wentworth. I have not examined their contracts. I am not giving an opinion as to whether any part of their business is legal.  My suggestion is that if you are approached by a JG Wentworth representative, think about things very carefully before proceeding.  If you get into a deal that you later regret, you may not be able to find anyone who can help you get out of it.  Please do not call me regarding JG Wentworth.  If you send me a message, I will respond. 

Another Article about Upstate Law Group.

https://www.commercialappeal.com/story/news/2019/11/06/candy-kern-fuller-andrew-gamber-duo-behind-alleged-financial-scheme/2506658001/

If you were scammed by VFG, BAIC or any other pension assignment company, here are some things to take into consideration when looking at your legal options.

1. If you assigned your pension, it is likely that you can rescind the assignment. Talk to a lawyer. The best thing you can do is stop them from taking MORE of your money.  I suggest that if you stop your assignment you do so under the protection of a lawyer, otherwise you may be digging a bigger hole for yourself.

2. If you bought a pension assignment, you may have no right, or at least limited rights, to sue the pensioner. You can't assume that the company that set up the assignment will be around when it comes time to pay damages. I suggest that you look at suing whoever referred you to the scam company. Usually it is a life insurance agent who is paid a finder fee. Life insurance agents are usually bonded or insured. What they sold you could be an illegal security, and they may be liable for your loss. 

I am only taking buyer cases from buyers located in Indiana. I will consider taking a case for a seller out of Indiana if you can't find an attorney in your state.  Most of the time the seller cases will be non-litigation cases, that is, not involving a lawsuit.  Also, I will not represent buyers against consumer pensioners. 

Have you been sued by Automotive Finance Corporation in Indiana?

We have noticed an uptick in lawsuit activity by Automotive Finance Corporation, -also known as "AFC".  For the past two and a half years, Keith Hagan and I have been handling a lot of dealer floorplan defense cases against Nextgear Capital, and a few cases against AFC. This is because Nextgear historically sued a lot more dealers than AFC.  In December 2019 though, it appears that AFC filed more than 30 cases.

If you are looking for an experienced Indiana attorney to represent you to defend you in an Indiana case by AFC (or Nextgear or any other floorplanner), please call us.  317-662-4529