2013 May 22 by jesse
As a Colorado bankruptcy lawyer Many of my clients suffer from numerous and seemingly unending calls from creditors about their unpaid bills. There are limits to when, where, and who the collectors can call you about your debt. However, you must assert your rights. The collectors are not going to do that for you. Collectors only want one thing – your money. They will bully you until they get what they want!
Depending on the client’s unique situation it can take a few days to several months to file a bankruptcy case. Until the bankruptcy case is filed the client is typically harassed by his creditors for money. That’s unfortunate. Those stressful irritating calls can be stopped.
Both Colorado and the US Federal Government have laws that protect consumers from unfair debt collection practices. The law is called the Fair Debt Collection Practices Act.
Both the Colorado law (CRS 12-14-105) and the Federal law (15 USC § 1692c) give you the following rights:
- Collectors can’t contact you at any unusual time, place, or manner known or which should be known to be inconvenient to the consumer.
- Collectors can call you between 8:00 a.m. and 9:00 p.m. local time unless you tell them it’s inconvenient
- Collectors can call you at work, unless you tell them your employer prohibits you from taking such calls at work.
- Collectors cannot call your family, your neighbors or your spouse or anyone else but you about your debt without your express consent or a court order.
- Collectors cannot call you if they know you are represented by an attorney.
If you get a collection call or letter I strongly suggest you send a letter to the creditor asserting your legal rights under both the Colorado and Federal Fair Debt Collection Practices Acts.
Please contact me, Jesse Aschenberg, if you creditors are harassing you or you have bankruptcy questions.
2013 May 16 by jesse
A debt may not be discharged in bankruptcy if it was the result of “defalcation.” What in the world is that? Is that even a word?
Well … the terms is not defined in the bankruptcy code. (Way to go congress!) And there has been enough confusion over the term for our United States Supreme Court to issue a ruling on its definition.
In 13 years of bankruptcy practice this word has come up once. It was in a recent case against a client of ours who had allegedly mishandled funds while handling his parent’s estate after they died. The Colorado Bankruptcy Court, in that case, found that our client’s behavior fell within the term “defalcation.” We appealed, in part, because we knew the Supremes had take up the same issue and would have a ruling on it this year.
Robin Miller with Consumer Bankruptcy Abstracts & Research has published a summary/excepts of the Supreme Court’s decision issued earlier this week. (By the way, you may need a dictionary to read this too. It’s good lawyerly writing).
Supreme Court holds that “defalcation” in Code § 523(a)(4) requires culpable state of mind:
Observing that “[t]he lower courts have long disagreed about whether ‘defalcation’ includes a scienter requirement and, if so, what kind of scienter it requires,” the Supreme Court, in a unanimous decision by Justice Breyer, held that “defalcation,” for the purpose of the discharge exception found at Code § 523(a)(4), includes a culpable state of mind requirement involving knowledge of, or gross recklessness in respect to, the improper nature of the relevant fiduciary behavior. Noting that, in Neal v. Clark, 95 U.S. 704, 24 L.Ed. 586 (1878), the Court had construed “fraud” as meaning “positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, … and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality,” the Court concluded that the statutory term “defalcation” should be treated similarly.
This interpretation does not make the word identical to its statutory neighbors, the Court said. As commonly used, “embezzlement” requires conversion, and “larceny” requires taking and carrying away another’s property. “Fraud” typically requires a false statement or omission. “Defalcation,” as commonly used (hence as Congress might have understood it), can encompass a breach of fiduciary obligation that involves neither conversion, nor taking and carrying away another’s property, nor falsity. Nor are embezzlement, larceny, and fiduciary fraud simply special cases of defalcation as so defined. Code § 523(a)(4) makes clear that embezzlement and larceny apply outside of the fiduciary context, while “defalcation,” unlike “fraud,” may be used to refer to nonfraudulent breaches of fiduciary duty.
Bullock v. BankChampaign, N.A., 2013 WL 1942393 (May 13, 2013)
Any Questions? Clear as Mud?
2013 May 14 by jesse
Can’t think straight.
Can’t enjoy life.
…. maybe bankruptcy is the answer for you. Let’s talk.
2013 May 9 by jesse
When a chapter 13 bankruptcy is filed, some lenders require mortgage payments to be sent to a special address. Here is the payment address for Bank of America for people who are in Chapter 13:Bank of America Retail Payment Service PO Box 650070 Dallas TX 75265-0070
Or you can in mortgage payments by calling Bank of America’s bankruptcy department: 1-800-669-5224
Make sure to keep good records of all your mortgage payments during your bankruptcy and put your account number on all your payments.
2013 May 3 by jesse
Bankruptcy is just one of many possible solutions to your debt problems. Our firm is not a bankruptcy mill. We want to do what’s best for you.
Are unsure whether hiring a bankruptcy attorney is best for you, your family or your business? Don’t spin your wheels spending hours on line trying to research your options. I wholeheartedly suggest you pick up a copy of the book “Surviving Debt” published by the National Consumer Law Center.
Surviving Debt is a GREAT book! I can’t recommend it enough. I have bought and handed out copies of this valuable resource to my clients over the last 13 years of being a Denver bankruptcy lawyer.
The 2013 version of the book includes the following topics:
- Dealing with Debt Collectors
- Which Debts to Pay First
- Saving Your Home from Foreclosure
- Credit Card Debt
- Student Loans
- Your Credit Report
- When and When Not to Refinance
- Strategies to Prevent Repossessions
- How to Defend Collection Lawsuits
- How to Find Effective Credit Counseling Agencies
- Your Bankruptcy Rights, and much more.
Follow this link to review and purchase the book from the National Consumer Law Center: http://shop.consumerlaw.org/survivingdebt.aspx or see if it is available in your local library.