Posts Tagged ‘aaron thalwitzer’

Debtor-Creditor Law: What is considered a Violation under FDCPA?

Monday, 03 September, 2012 08:02 Written by Aaron B. Thalwitzer 0 Comments
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Under the Fair Debt Credit Protection Act (“FDCPA”), the below activities are violations. It is a FDCPA violation to make misleading or false representation through a phone call, email, voice mail or letter. Misleading information or FDCPA violations can include.

  • Threatening to sue or pursue any type of legal action, damage your credit rating, impose any type of property repossession, or wage garnishment which the collection agency does not intend to pursue is a FDCPA violation of consumer’s right.
  • Mislead the consumer with the amount or the status of the debt.
  • Contacting someone other than the actual debt holder or cosigner for debt collection. This can include: neighbors, friends, employer or relatives.
  • Calling on multiple occasions at inappropriate times. The FDCPA defines inappropriate times as any contact after 9:00 PM or before 8:00 AM.
  • If the collection agency calls an individual at work they may not notify an employer of the reason for the call before being asked.
  • Making misleading statements to make an individual believe the collection agency is affiliated with the state of federal government and the debt collection documents are official government documents such as a subpoena or court order to pay.
  • Making any type of inappropriate racial slur, insult or obscene comment in letters, calls or emails.
  • Making the individual think they have committed some type of crime by failing to pay their debt obligations.
  • Collecting information under false pretentions such as conducting “surveys”.
  • Suing you in a court unusually far from your home.
  • Charging interest or fees not allowed under state laws or outlined in contracts.
  • Calling an individual at inconvenient locations such as work when an individual has asked the debt collection agency not to call them in either written or verbal form.
  • Making threats to violently harm an individual if they fail to pay their debts.
  • Publishing the names of the people who fail to pay their debts (other than by giving the information to a credit reporting agency).
  • Using a false company name.
  • Providing incorrect information about an individual to someone else.
  • Depositing a post dated check early in efforts to get the check to bounce.
  • Contacting an individual via postcard.

A “debt collector” is someone who regularly tries to collect debts owed to others. A debt collector may contact you if you are behind in your payments to a creditor on a personal, family or household debt, or if an error has been made in your account.

Make no mistake, a debt collector may contact you in person, or by mail, email, telephone, fax (and even telegram, for those of you in the old west).

A debt collector is required to send you a written notice within five days after you are first contacted, telling you the amount of money you owe. The notice must also specify the name of the creditor to whom you owe the money and what action you should take if you believe you do not owe the money.

Question: What can I do to make them leave me alone?

Answer: Two things. Settle the debt, or write them a letter telling them to stop.

Once the debt collector receives your letter, they may not contact you again except to say there will be no further contact, or to notify you if the debt collector or the creditor intends to take some specific action.

If you do not believe you owe the debt, you may write to the collection agency within 30 days after you are first contacted, saying you don’t owe the money. The agency may not contact you after that unless you are sent proof of the debt, such as a copy of the bill.

In addition, debt collectors are required to accurately disclose their identities to the person at the called number, though in practice you are just as likely to hear a dial tone if you ask for the name of the actual human being calling you.

A debt collector may not use false statements, such as falsely implying that they are attorneys, that you have committed a crime, or that they operate or work for a credit bureau or misrepresenting the amount of your debt, the involvement of an attorney in collecting a debt, or indicating that papers sent to you are legal forms when they are not.

There are obvious advantages to writing a cease and desist, but a less obvious one is that violations of the FDCPA can be a basis for a lawsuit, or used as a setoff to lessen the amount you might owe to a creditor such as a credit card company or bank threatening foreclosure. In other words, when they sue you, you can tell the court that they have been harassing you. If the judge finds that you are right, he or she should deduct the damages from your debt. For credit card companies, this could be a large fraction (or even all) the debt, and for mortgage foreclosure cases, it provides a basis to ask for a jury trial (more on that later), and gives the bank a lot to think about if they haven’t been willing to discuss settlement.

Foreclosure Defense and Short Sales: Tax Consequences

Monday, 27 August, 2012 06:00 Written by Aaron B. Thalwitzer 0 Comments
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Question: Do I have to pay taxes on the amount the bank forgave when they foreclosed on my house?

Answer: Sometimes. It depends on a lot of factors, but for many residential homeowners, the answer may be No.

Many homeowners default on their mortgage and note. Often, these homeowners (or their attorneys) will negotiate with the bank to receive a principal reduction on the amount of the loan, or give the bank a deed in lieu of foreclosure, or do a short sale.

This will help you how to find out whether you have to pay taxes on the amount of the loan that was forgiven.

First, an example. Let’s say that in 2007 you took out a $200,000 loan to buy your home. You’ve paid down $20,000, and still owe $180,000.  The payments have increased, your paychecks decreased (or stopped coming altogether) and despite your best efforts, you ended up missing several payments and defaulted on the loan.

Under the Mortgage Forgiveness Debt Relief Act of 2007 (“MFDRA”), the homeowner may be eligible for an exclusion if:

  1. the property is residential, and
  2. the balance on the loan is $2 million or less, and
  3. the mortgage or mortgages was/were used to buy or improve the property, and
  4. the owner lived there for at least 2 out of the last 5 years, and
  5. the debt was non-recourse (i.e., foreclosure was the bank’s only remedy after homeowner default), and
  6. the discharge is related to a decline in value or the homeowner’s financial condition, and
  7. the discharge is not related to services performed for the lender.

The MFDRA expires at the end of 2012 (though President Obama has included an extension to 2015 in his 2013 budget proposal). The exclusion limit is $1 million for a married person filing separately. Equity used for other purposes (e.g. paying off credit cards, other loans) may not be excluded. The MFDRA applies to foreclosures and modifications which qualify as above.

After the reduction, the lender is required to send the homeowner a 1099-C, Cancellation of Debt form. The homeowner must fill out IRS Form 982 when filing taxes that year.

If the MFDRA doesn’t apply, the homeowner may also exclude if he or she is insolvent (total debts exceed the total fair market value of all assets), at which point bankruptcy may be worth considering.

The IRS has some useful information on their web site which goes into much more detail. If you decide to take advantage of the income exclusion, I strongly recommend that you consult with an attorney. Whatever you decide, the government has provided an excellent tool to save you money.

ZIES WIDERMAN & MALEK is a law firm practicing civil litigation, real estate, and intellectual property law in Melbourne, Florida. To contact Mr. Thalwitzer, call (321) 255-2332 or email him at Aaron@LegalTeamUSA.com.

I Got a Florida Foreclosure Lawsuit: What Now?

Monday, 13 August, 2012 06:00 Written by Aaron B. Thalwitzer 0 Comments
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Most of the time, people call me in time when they’re served with a lawsuit. But often enough, they wait until the last minute or beyond. Usually, they’re sticking their head in the sand, ignoring the problem, deluding themselves into thinking that there’s nothing they can do — or nothing they should do. It’s only when things get real that they get moving. In a foreclosure case, that’s usually a few days before the home they’re living in is going to be sold, or at best a week before summary judgment. But if you wait that long, chances are, it’s too late.

A recent Florida appeals case (Phadel v. Deutsche Bank, 83. So. 3d 893 (Fla. 4th DCA 2012) illustrates this all too common scenario. The homeowners failed to defend themselves and a foreclosure judgment was entered. Later, they asked the judge to vacate (cancel) the judgment. They even had what appeared to be good defenses, but they didn’t raise them at the onset, and the Court said, to paraphrase, “too bad, so sad, next case.” Don’t make that mistake.

Being an attorney, let me lay out an exception to the rule. If there’s real fraud (not ‘they don’t have the note’ “fraud”) or if the bank didn’t serve you properly you might have something even very late in the game. But don’t count on it.

A lot of people think that “since the bank doesn’t have the note, they can’t foreclose”. There are many issues with this statement, but my main concern is that people are being led to believe that they don’t need an attorney, because, well, the judge won’t let the bank take my house when they don’t even have the note, right? Wrong.

Judges are not and usually should not be advocates for either side. The judge isn’t your lawyer. He is not the bank’s lawyer either. When you don’t defend yourself, the judge is usually not much more than a ministerial paper-signer (with all due respect to the judges). You have to defend yourself, and I promise you, you don’t want to go it alone.

On the balance, defending a foreclosure is a solid economic investment. But if you do nothing, or wait until it’s too late, don’t count on the judge, or anyone, coming to your rescue.

Apple v. Samsung: Sh*t Just Got Real

Monday, 06 August, 2012 06:00 Written by Aaron B. Thalwitzer 0 Comments
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It is my observation that judges are willing to let a lot of things slide. Too many things, I would say. Lawyers and parties to litigation can often lie, mislead, flout court orders, and generally play fast and loose with the rules, and most of the time, nothing happens to them. In the Apple v. Samsung patent case, Samsung’s counsel broke a cardinal rule. During a jury trial, he released excluded documents to the press, and indicated that those documents should be shown to the jury. Juries are only supposed to hear evidence within the four walls of the courtroom — regardless of whether there might be more information out there. That’s why judges have been ordering juries to hand over their cell phones during trial, and have long ordered them not to investigate the case on their own. Remember the court system isn’t called the “Truth System”, it’s the “Justice System”. Obtaining truth is probably too much to ask, but we can try our best to be just.

John Quinn, Samsung’s attorney, poisoned the well when he decided to release the documents to the public. The statement he approved states:

“The Judge’s exclusion of evidence on independent creation meant that even though Apple was allowed to inaccurately argue to the jury that the F700 was an iPhone copy, Samsung was not allowed to tell the jury the full story and show the pre-iPhone design for that and other phones that were in development at Samsung in 2006, before the iPhone. The excluded evidence would have established beyond doubt that Samsung did not copy the iPhone design. Fundamental fairness requires that the jury decide the case based on all the evidence.”

Samsung made public two Powerpoint presentations totaling nine pages, which purport to show, among other things, that its phone predates the iPhone.  Apple called the action “contemptible,” and Judge Lucy Koh called for an immediate meeting with Quinn.

Quinn has already exhibited his willingness to approach, if not cross, the line between zealous advocacy and unethical conduct. Claiming that Apple had “opened the door” to discussion of Samsung’s earlier phone, Samsung asked the court to reconsider. Judge Koh, noted that “Samsung has filed like 10 motions for reconsideration,” and told Quinn to sit back down. Quinn told Koh that he was “begging the court,” and  asked “what’s the point in having a trial [without the excluded evidence]?” Koh had made up her mind and said, “Don’t make me sanction you. Please.’”

Apple has asked for judgment in its favor. It ain’t happening. At best Judge Koh will reserve ruling until after the jury trial, hoping the jury decides in Apple’s favor so she doesn’t have to exercise her discretion.

Google Admits It Needs Apple’s Patents to Compete

Monday, 23 July, 2012 06:00 Written by Aaron B. Thalwitzer 0 Comments
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Don’t we all?

In a letter to the Senate Judiciary Committee, Google General Counsel Kent Walker  has argued that proprietary non-standardized technologies that become ubiquitous due to their popularity with consumers should be considered de facto standards:

While collaborative [Standards Setting Organizations (SSOs)] play an important part in the overall standard setting system, and are particularly prominent in industries such as telecommunications, they are not the only source of standards. Indeed, many of the same interoperability benefits that the FTC and others have touted in the SSO context also occur when one firm publishes information about an otherwise proprietary standard and other firms then independently decide (whether by choice or of necessity) to make complementary investments to support that standard in their products. … Because proprietary or de facto standards can have just as important effects on consumer welfare, the Committee’s concern regarding the abuse of SEPs should encompass them as well.

Is that all the time, or only when it suits Google’s interests? Popularity and ubiquity are not (yet) enough to limit the scope of patent protection.

Google is forwarding the argument that some inventions are so good that they should be considered “standards” subject to restrictions. In a letter of his own, Apple General Counsel Bruce Sewell responded. “That a proprietary technology becomes quite popular does not transform it into a ‘standard’ subject to the same legal constraints as true standards.”

Sewell wrote:

The capabilities of an iPhone are categorically different from a conventional phone, and result from Apple’s ability to bring its traditional innovation in computing to the mobile market. Using an iPhone to take photos, manage a home-finance spreadsheet, play video games, or run countless other applications has nothing to do with standardized protocols. Apple spent billions in research and development to create the iPhone, and third party software developers have spent billions more to develop applications that run on it. The price of an iPhone reflects the value of these nonstandardized technologies — as well as the value of the aesthetic design of the iPhone, which also reflects immense study and development by Apple, and which is entirely unrelated to standards.

The distinction may be in the origin of the popularity. Was it from being adopted industry-wide, or was it because one developer invented a really good technology, forcing everyone else to get on board or fall behind. Here, Apple took a cell phone, made an iPhone, and now we have the patent wars.

Apple’s argument mirrors the rationale for our patent system itself: an inventor gets property rights to an idea for a limited time, in exchange for disclosing the idea. Others can embrace and extend the invention, but only when the patent expires.

Cook argues:

No one should be able to get an injunction off a standards-essential patent because the owner of the patent has the responsibility to license it on a fair, reasonable and non-discriminatory manner . . . [a]nd so when somebody comes to you and tries to get some obscene level of money from you for this, they are in essence telling you they are not going to license it because they want to go try to get an injunction and use the court system to do that. In my view, they use it in a way that it wasn’t intended. … And you can always argue about the payment, and there has to be a forum for resolving those disputes. The problem in this industry is if you add up what everybody says the standards-essential patents are worth, no one else could be in the phone business. Competition would be locked out. And so it’s kind of gotten crazy — this is one issue. There is some of this that is maddening. It’s a waste; it’s a time-suck. However, does it stop innovation? It’s not going to stop us from innovating — no — but it’s overhead. It’s overhead that I wish didn’t exist.

For more, read here.

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