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What (at a minimum) should you expect from your attorney?

What follows is my opinion on what you should expect from your attorney. They are the minimum standards of conduct necessary in order to build trust between an attorney and his client. My view is that you have a right, not just to ask for, but to demand the following:

Attorney John Menszer

Attorney John Menszer

 

His or her attention.

An attorney must listen to you in order to evaluate the facts of your case. He (or she) should pay attention to the details of your story. He should ask you questions in order to get you to focus on the critical facts of your case. He should be able to summarize what you said and feed you back what he heard. On the other hand, in many cases a story contains both legally relevant and legally irrelevant information. You may not be aware of the difference. Don’t be put off if at some point in order to save time your attorney wants to skip over the legally irrelevant parts of your story.

A prompt response to communications.

My thought here is that attorneys should return phone calls the same day, preferably within 3 hours, and emails by the next day at the latest. The premise is what is reasonable. If the attorney is in trial, he may not be able to meet this goal. But, you should feel that your attorney is accessible to your need to communicate with him.

Realism.

Your attorney, like your doctor, should tell you the truth. He should not over-promise, but be realistic about your chances. If you give your case to an attorney who promises the moon, he will likely break that promise. You are hiring an attorney for his knowledge and his judgment. He should tell you what he knows and it is often appropriate that he share with you what he doesn’t know. (But it is OK if he says he has to do legal research in order to find the answer.)

An explanation.

An attorney should be able explain his view of your case up to your ability to absorb the information. Not everyone wants to know the how and why, but for those who do he should be available to explain the issues in your case.

Timeliness.

Your case should progress in a timely manner. Frequently, unforseen complications arise that require an adjustment of the expected time frame. Nevertheless, you should be assured that your case is getting a fair share of your attorney’s attention.
Your best interest in mind.

They say that to a hammer every problem looks like a nail. I’m not sure what that means, exactly. But as a client I want my attorney to have my best interest in mind. It is possible in the legal arena to throw up a lot of sparks that give very little heat. Not e very case benefits by taking extreme measures. Compromise is sometimes better than a win, especially if it comes at a lower cost and in time. The services an attorney delivers should be appropriate to the case and the needs of the client, not just to the size of the client’s pocketbook.

Abuses by Debt Collectors May Result in Adoption of New Rules by the Feds

Debt collectors have attempted to intimidate consumers into paying debts that are prescribed or not owed at all in cases of mistaken identity.

This Way Inside

This Way

If new rules are adopted debt companies would have to more fully document their accounts. Also proposed are requirements that would prevent a collector from contacting a debtor more than 6 times a week. And if a debtor dies the collector would have to wait a month before contacting the survivors.

The Consumer Financial Protection Bureau (CFPB) will begin a lengthy adoption process which may or may not end with the implementation of the rules. It promises to be a very politicized path to adoption. But there is some cause for optimism. Debt collection is the most frequent complaint the CFPB deals with. And the bureau began working with consumer groups and industry leaders three years ago to formulate acceptable compromises regarding these problems.

In Louisiana, an open account, like a credit card debt or a credit at a store, prescribes three years from the date of last activity in the account. LA R.S. Art. 3494 (4). Despite this many creditors pay no attention and attempt to collect on older accounts that are past their prescription date. Consumers are often not aware that they may have a legal defense to collection of a debt.

Another issue arises when a creditor has sued the consumer and obtained a legal judgment to enforce payment a debt. In Louisiana, a money judgment prescribes 10 from its date of signing. LA CC Art. 3501. Obviously, a much longer period than for an open account. Most of these judgments are obtained by default, which is when the consumer doesn’t make an appearance in court to defend the suit. Problems arise when the consumer has not been properly served notice and citation of the lawsuit before the judgment is taken. This even has a name “sewer service”.

Another problem arises when the creditor has insufficient proof of the debt. Consumer debt is often sold and resold at deep discounts to debt collectors. This exacerbates the problem of proof as vital documents are lost or so called robo-affidavits are filed without personal knowledge.

Consumers have been ill served by debt collectors where their lack of knowledge and vulnerability have made them easy prey to unscrupulous or careless operators.

8 Ways to Stay Out of Bankruptcy

I am a bankruptcy attorney. From my point of view here are the things that most often push people into bankruptcy._1130814

1)  Never ever co-sign a loan for a friend. Some of the most tragic bankruptcies occur when the client has otherwise sterling credit but his “friend” doesn’t pay.

2)  Avoid ruinous debts with ridiculous interest rates. These include payday loans, used car loans, even mortgages with 30, 90 or even 200% annual interest, or more. They are roads to disaster.

3)  Always, pay more than the minimum on credit card debt. If you can only afford the minimum payment than you are carrying too much debt. The interest will eat you up.

4)  Carry health insurance.

5)  Student loans are not free money.  Be very careful with student loans. They are non-dischargeable debts in a bankruptcy.

6)  What follows is very hard advice.  People hate to hear it, but, if your economic circumstances change adjust. If through divorce or unemployment you can’t afford your lifestyle — downsize.

7)  Contact your mortgage company and apply for a home loan modification. Then, think twice before signing it. You are often pushing costs to the end of the loan where you will eventually have to pay them back.  But on the other hand you may be lowering your interest rate. So consider the terms and your alternatives, like selling and moving somewhere cheaper.

8)  Don’t refinance your home or take money out of a 401K to pay unsecured debts.

I have a financial question about my Chapter 13 bankruptcy case?

NationalDataCenter

The National Data Center website may have just the information you are seeking.  In a new development the National Data Center has coordinated with the New Orleans Chapter 13 Trustee’s Office.

At the Data Center’s website a debtor can view the latest financial information about their case: On the Case Summary page the debtor can see the total payments they have made and the dates their last three payments were received by the Trustee. On Claim Summary page each creditor is listed with the amount of the claim and how much has been paid to that creditor. You can also note how much your attorney has been paid. On the Account Ledger page each receipt of funds and disbursement is listed by date.

The address of the National Data Center’s website is www.ndc.org. If you can’t find the answer to your question on the site, you can call the Trustee’s office directly at 504-831-1313. You will be directed to punch in the last digit of your case number, so have it handy. If your case administrator does not answer, leave a message. She will call you back within 24 hours. And you can always call your attorney for answers.

In a bankruptcy what happens to debts between a divorced husband and wife?

Unfortunately, divorce and bankruptcy often go together.  What happens to the debts that spouses owe to each other when one files for bankruptcy?  The bankruptcy code distinguishes between two kinds of marital debts and limits the dischargeabilty of both.

1)  The domestic support obligation refers to alimony and child support, but includes payments coming due before, during or after the bankruptcy, if they are subject to a separation  JohnMenszer-9385agreement, divorce decree or court order.  If they are in the nature of alimony, maintenance or support the court looks to the true nature of the payments, despite what they are called in the agreement or order.  Not only can these debts not be discharged in a Chapter 7 or in Chapter 13 bankruptcy, they are deemed priority debts and paid in preference to unsecured debts, like school loans and credit cards.  Furthermore, a Chapter 13 debtor with domestic support obligations must keep his support payments current or his bankruptcy is liable to be discharged.

Domestic support obligations can include attorney fees paid by one spouse to the other spouse’s attorney, when the second spouse is awarded alimony or child support.  They can include agreements to pay utilities, mortgage payments and insurance when they are deemed necessary to support the non-filing spouse.  The burden is on the creditor to prove that the debt is non-dischargeable.

2)  The other category of marital obligations are marital property settlement debts.   These encompass all debts to a spouse or child incurred by the debtor in the course of a divorce or separation, which are not otherwise domestic support obligations (category 1, above).  In other words, everything else.  They can include credit card debt, student loan payments, uncompensated labor, anything that is not deemed a support payment.  They are also not dischargeable in a Chapter 7, but are dischargeable in a completed Chapter 13 bankruptcy, after the debtor has made all the payments and fulfilled all the other requirements for discharge.

The only game in town for a debtor seeking to be rid of marital property settlement debts is to make Chapter 13 payments for either the 3 or 5 year required period.  The debtor’s resultant Chapter 13 discharge will absolve the debtor of the obligation to pay any outstanding marital property settlement debts that did not get paid through the bankruptcy.