Are you getting marketing text messages late at night? You might be able to sue for damages.

 Under the Telephone Consumer Privacy Act, or TCPA, a company is not supposed to engage in automated calling or text messaging without your permission. They also aren't allowed to send automated messages to you before 8:00 AM or after 9:00 PM your time.  I received a complaint from a person who is receiving late night messages repeatedly from patpat.com.  If you are repeatedly getting text messages you didn't sign up for, or outside of 8:00AM-9:00PM, please contact me.  

More Comments on Home Title Lock

 In the past couple of years, I've gotten calls from a couple of reporters who started an investigation into Home Title Lock. It is likely the most recent investigation was snuffed out by the (then new) pandemic.  I heard my first commercial for them in a long time, and I think things are about to heat up.  In addition, I saw this article on the Quicken Loans site that sure seems to me to read more like an advertisement than a journalistic piece.  

What I find interesting is that this article includes the first statistics I've ever seen in discussions about this problem. According to the article:

 "According to the FBI, 9,600 victims lost over $56 million in 2017 due to real estate and rental fraud. There are not specific numbers on home title theft, but many see these schemes as a fast-growing area of cybercrime."

Now let's assume these numbers are true. My argument has never been that home title fraud NEVER happens. My argument has been that it is REALLY RARE.  As this quote points, out these are NOT numbers specific to home title theft, but to all areas of real estate and rental fraud.  In my 34 years as an attorney, I have seen a number of cases involving real estate fraud, but none of them has involved forged title documents by a stranger.  The most common fraud I've seen is the "we buy homes" scam.  You've probably seen the signs on a telephone pole near you.  The thing that disqualifies this scam from what Home Title Lock  touts is, typically, the deeds and other documents are actually signed by the real owner, but under the misrepresentations of a con-artist.  The other common real estate fraud that I've seen is a relative or other trusted person using undue influence or misrepresentations to con an elderly or incompetent person into signing a deed.  Home Title Lock won't help in these situations, either.  Rental fraud? I've seen people without even any documented claim of ownership of a property pretend to be a landlord and rent it out.  In addition, there is a form of mortgage fraud that the victim is the mortgage company rather than a homeowner and that is a "straw buyer" fraud.  I haven't seen this fraud in at least 15 years, but it was big before the Great Recession.  

The bottom line is that I am guessing the number of cases that fit the description of Home Title Lock's advertisements is closer to 96 than 96 thousand, and if I'm right, the odds of you being a victim really is one in a million.  Note the odds of being struck by lightning are twice that, about 1/500,000.  

By the way, I'm apparently not the only person who thinks the problem described by Home Title Lock is overblown. I ran across this interesting blog post by attorney Nathan Hannah from Arizona. Attorney Hannah's also seems suspicious that the actual problem of title theft by forged deeds is rare, and he also analyzed a common title insurance policy and determined that it might cover such events anyway.  Also, whether or not it does, identity theft coverage through a homeowners' policy just might.  

(The subject of identity theft coverage in homeowners' policies opens another whole can of worms, one which might be the subject of a blog post later.  My limited personal experience with it leads me to believe that it is hard to make use of the coverage even when you are a victim of identity theft. A few years ago, I talked to a big table of consumer lawyers who do Fair Credit Reporting Act cases for consumers, and I asked if any of them had ever received a referral from an insurance company under an identity theft policy, or if they were ever retained to work for a consumer on an identity theft issue, and none of them had.  I just haven't seen evidence of an insurance company ever actually doing something for a policy holder on an identity theft case.)  

Dealerfloorplandefense.com website is online

 Our website, dealerfloorplandefense.com is up and running.  The floorplan part of this blog will eventually migrate there.  Check out the website and let me know what you think.  

Bankruptcy Courts Differ on whether Unpaid Floorplan Balances can be Discharged

 When floorplan lenders sue, generally they claim "conversion" for inventory sold "out of trust".  The lenders also either threaten to or actually do object to the discharge of these debts in bankruptcy. The courts are all over the map in how they treat these cases. Knowing this affects how we defend conversion cases by floorplan lenders.  Fundamentally, we have found during the initial lawsuit, it is crucial to raise a defense to a conversion claim to keep the creditor from getting a default judgment for conversion.  Next, it is best if a settlement can be arranged that gets rid of the conversion claim as well as the breach of contract claim.  If no settlement can be reached, our next approach is to make sure the creditor gets a judgment for breach of contract only, and not for conversion.  

Even if they just get a judgment for breach of contract, that doesn't mean that they can't still object to discharge in bankruptcy. If they do though, it is important for your bankruptcy attorney to fight back. If the creditor meets resistance, they will probably cut a deal.  This means that you need to save some money for the fight in bankruptcy court, and you need to find a bankruptcy attorney who handles contested "adversary" cases.  

The bottom line, if you as a businessperson are sued by a floorplan lender, call us. Keith Hagan and I have handled hundreds of floorplan cases over the last four years, and settled a good portion of them, even some cases that didn't seem capable of being settled at first.  We can only litigate the case in Indiana, but no matter where you are located in the United States, and whichever lender we may be able to negotiate on your behalf.  

Here's a comment on the subject from another law firm, Severson.com.  https://www.severson.com/consumer-finance/bankruptcy-courts-reach-different-conclusions-on-whether-floorplan-lenders-loans-were-dischargeable-when-debtor-converted-funds-and-went-out-of-trust/

Have you received a medical bill for services relating to a workers compensation covered injury? (in Indiana)

 If you live in Indiana and have received a bill for medical services relating to an injury covered by workers compensation, please call me.  Legally you should not be getting this type of bill.  (Unfortunately, we can't do cases for people outside of Indiana.)  

Have you been sued by Quality Leasing or QL Titling Trust?

 I have recently been made aware, that Quality Leasing and QL Titling Trust have been filing a number of lawsuits in Marion County Indiana. I haven't gone through all of these lawsuits, but I suspect most of them are attributable to the bankruptcy of Celadon Trucking in Late 2019.  

Owner operators were really in dire circumstances when Celadon abruptly declared bankruptcy. Many drivers were across the country from their home base suddenly facing the probability that they would not be paid for their trip and with cargo that could not be delivered, but could not be indefinitely kept on board a stranded truck.  

Truckers were left with leases with Quality Leasing that said they could only drive for Celadon, but they couldn't drive for Celadon. Many went into default.  Now many of the drivers are being sued by Quality Leasing.  If you are sued by Quality Leasing, please give us a call at 317-662-4529.  Our goal, quite frankly, is to combine the defenses of several similar cases to either settle the cases or make it economical to defend them all the way to trial.  

Have you been sued by Kinetic Advantage?

 Kinetic Advantage is a new automotive floorplan lender located in Hamilton County Indiana. The company was formed by former executives at DSC, a company which evolved into Nextgear Capital.  I suspect once they build their business, they will end up suing dealers in Indiana. When they do, we'll be ready to represent the defendants.  https://www.prnewswire.com/news-releases/altamont-capital-partners-invests-in-kinetic-advantage-301210030.html

A free alternative to Home Title Lock?

 Back in 2018, I made a blog post about Home Title Lock, a company I had heard about on Sirius/XM radio. The gist of my post is that based on my experience, I thought the company was exaggerating the problem of fraudulent deed recordings.  Since then, I've been contacted by a couple of reporters who were investigating the company. I haven't seen any news stories about the company arising out of those interview.  Since I have no statistics, I can only talk about my personal observations.  

I just saw that my home county (Marion County, Indiana) has introduced a free service to alert homeowners of any transactions involving their properties. Apparently other counties are offering the same services.   https://pfa.fidlar.com/INMarion/

"Help, I've been sued by AFC, but I have no idea how they are coming up with saying that I owe so much money" - the role of the Forensic Accountant

 We have had a lot of calls in the past few months from people who have been sued by Automotive Finance Corporation (AFC) either for breach of contract, or breach of guarantee, but the amount claimed is an order of magnitude greater than what the dealer or guarantor believes might be legitimately owed.  (Note that this article could apply to any floorplan lender, but we have mostly been fielding inquiries of this nature about AFC.  We have generally been able to work out disputes over numbers with Nextgear Capital without as much difficulty.)  

We have found that these cases are challenging, because the person calling us may not even have access to the books and records of the dealership, and AFC may have cut the dealer off from online access of their account with AFC.

The documents that AFC provides with the litigation don't have all the information to solve the problem, and even when AFC provides more documents by formal or informal discovery, that doesn't tell the whole story. What AFC provides is in a form that they use to bolster their case (because, of course).   There is always a possibility that your accountant will dig into the numbers and find that AFC's numbers are good.  

The unfortunate truth is that there may be no cheap way to resolve these cases unless you have meticulous records from your dealership backing up your position.  If you have a readily presentable paper argument supporting your claim, we can advance that argument and negotiate with AFC, or oppose summary judgment, at a low cost.  If you don't, litigating against AFC is likely to get much more expensive.

If you need to build a paper case supporting your proposition that you don't owe AFC what is claimed, you may need a forensic accountant to evaluate AFC's paper claims. The forensic accountant can cross reference it against the company's books, and can tell us (the attorneys) what additional information that is needed to fully do a forensic audit of the claim.  In the context of a case in litigation, the goal is to get a report from the forensic accountant that supports our position in the case, usually that the amount claimed is too high.  This report can be used in mediation or arbitration, and the accountant can testify if the case goes to trial as an expert witness.  

The Catch: Forensic accountants are niche professionals with extra training that typical accountants don't have. It is likely that any forensic accountant you can get will charge significantly more than your company's regular accountant. Forensic accounting can be time consuming.  You may have to pay more for your forensic accounting than you do for your attorney.  Also, it isn't always easy to find a good forensic accountant.  

For more information on the role of a forensic accountant, here is a link.  Planning for Fraud: Using Forensic Accounting to Protect Your Business - Tire Review Magazine