Getty Images Lawsuit

“Help! I Just Got A Threatening Letter/Lawsuit From Getty Images!”

Hundreds, if not thousands of people have received letters recently from Getty Images regarding pictures allegedly owned by Getty, which someone used in their blog/ website/ twitter stream / etc.

These letters are really nothing but extortion. If you’ve received one, please feel free to call or email me to discuss a solution.

In the meantime, B R E A T H E.

Worrying won’t do you any good. There are lots of ways to deal with trolls, but becoming frightened isn’t going to do you any good.

Image: SocialisBetter

We Don’t Need No Stinkin’ Rules…

When you owe a debt, whether it’s a credit card or some other type of debt, you are protected from harassment by a broad series of powerful laws:

• FDCPA (Fair Debt Collection Practices Act)
• FCRA (Fair Credit Reporting Act)
• RFDCPA (In California: Rosenthal Fair Debt Collection Practices Act)
• UDAP (Unlawful & Deceptive Acts & Practices)

There are more, but these four are the big guns in any debt defense attorney’s bag of tricks.

What do the collectors do? I have had clients (within the last month or two) tell me that collectors have done each of the following. Each of these is a violation of federal or state law, and each is actionable by a good debt collection attorney.

Debt Collectors CANNOT:

1. Ask you to pay more than you owe

The collector cannot misrepresent the amount you owe. [15 USC 1692e] § 807(2)(a)

Don’t Even THINK About It.

However, I agree 100% with each and every one of these:

1. No you can’t move across the country without telling your ex. Or rather, you can, but you really don’t need the consequences that will follow.
2. No you can’t put a child up for adoption without telling the father.
3. No you can’t ”sign your rights away” to get out of paying child support - even and especially if -the mother agrees.
4. It doesn’t matter you had everything put into your name, you still don’t get the house, the car, and the retirement fund all to yourself.
5. Just because your spouse or baby mama lawyer put it in a court pleading doesn’t mean anyone takes it as the Truth.
6. No, you can’t obtain supervised visitation because you don’t really know the dad or his family or what they’re capable of.  If you knew for sure there were drugs or violence involved that would be a different story. The Court will also wonder why this wasn’t an issue when you decided to have a child with him.
7. No I can’t take your case on contingency, and wouldn’t if I could. I suspect few people go to work on the off chance they decide you did a good job and will pay you.
8. If someone is bound and determined to live on the lam to avoid paying child support,  there is really nothing anyone can do about it.
9. Women are not automatically favored in custody cases, but the person who is the most involved with the children usually is. You do the math.
10. (Probably the number one thing I tell people all the time) You can’t fix crazy.

Debt Collector Harassment

“I’m Being Harassed By A Debt Collector! How Can I Make Them Stop?”

Once Debt Collectors Start Calling, They Are Relentless.

You don’t need to get more than a few days late on your credit card payment before the debt collector begins to call. And, once the calls begin, you can expect to receive 5, 6, 7 – up to ten or more calls each day – from each debt collector.

Clients tell me stories of what happens once they answer the phone. Collectors will:

• Threaten to arrest you
• Tell you the Sheriff is on the way to your door
• Tell you they are about to take everything from your bank account
• Call you at work, over and over again
• Call your neighbors
• Call your parents

And much, much more.

What Do These Tactics Have In Common?

Depending on the circumstances, each of the collection strategies above are illegal. You can sue the debt collector and receive your attorney fees, plus monetary damages, under the Fair Debt Collection Practices Act, and in California, under the Rosenthal Fair Debt Collection Practices Act.

Evidence Of Debt Collector Harassment Is Important

You need to keep records of what the debt collectors say. In California you cannot record the conversations without the other party’s knowledge. But, you can save the abusive voicemails they leave.

You should also keep a notebook next to your phone, and list days, dates, names and notes of what happened during the conversations.

With this evidence, good credit defense attorneys (ahem) can turn the tables on the wolves, recover some money for you, and often win other concessions from your adversary.

Time Limit To Sue Debt Collectors For Harassment Under the FDCPA

There’s an extremely firm time limit on how long you have to sue for violations of the FDCPA; your suit for violations of the Fair Debt Collection Practices Act must be brought within one year of the day that the debt collector violated the law.

This is NOT a flexibile time limit.

If you miss the deadline, you blow your chance to recover from the predators who have been upsetting you.

For phone calls and messages, the time to sue begins on the day that the call is made. For letters, the time to sue begins when the letter is sent – not when it’s received, as you might think.

The general rule is that a court won’t extend the time to sue debt collectors for harassment “by even a single day.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir.2000).

There is an exception to the rule when a defendant fraudulently conceals their wrongdoing and prevent a plaintiff from filing suit during the limitations period. In those circumstances, the right to be free of stale claims is trumped by the unfairness of the defendant’s conduct. Holmberg v. Armbrecht, 327 U.S. 392, 396, 66 S.Ct. 582, 90 L.Ed. 743 (1946).

Time Is Of The Essence, Even If You’re Not Aware of It

You know that the collection agencies are harassing and threatening you, but you don’t know if the calls, threats and harassment are enough to be illegal. However, I know – and so does any good collection defense attorney.

You have several  options in terms of getting out of debt, so you should talk with a lawyer (call me right away) about what those options are.

But beyond that, you should get to an attorney like me who knows about the debt collection laws and can help decide whether the actions cross the line into illegality.

After all, if you don’t fight back in the time specified by law then the debt collection agency gets away with it. And if they do, chances are good that they’ll do it again to someone else.

Fight Back Against Credit Card Lawsuit

You’ve just been served. The credit card company is suing you. You’re scared and don’t know what to do. You want to bury your head and hide.

What if, with a little effort you could turn this frightening event into a victory for you?

When you’re sued, your world can seem as though it’s caving in. The forms are unreadable, the clerks at the court are not helpful, and you suddenly can’t concentrate.

When you’re sued for a credit card debt, your immediate reaction is likely “I do owe them money, but I can’t believe I owe them that much.”

Your attorney, on the other hand, will not immediately concede that you owe the credit card company or debt collector any amount at all.

Your attorney will ask questions. The first questions will be: How old is the debt? How long has it been in default? Is the party suing the original owner of the debt? If not, how did they obtain the right to sue for the debt? Did the creditor violate the Fair Debt Collection Practices Act? Is the debt calculated correctly? Does the Plaintiff conduct regular business in California? Is the plaintiff registered with the Secretary of State?

Legalzoom Helping With A Will & Trust

I can’t stand Legalbuffoon Legalbaboon Legalzoom. Seriously. Absolutely. Can’t. Frigging. Stand. Them.

Why, I hear you ask? Is it because they out-market you, Ventura Estate Planning and Santa Clarita Bankruptcy Attorney Ridley, to a fare-thee-well (didja catch the clever google juice I splashed in there?)?

No. Lots of people out-market me (Jay, can you hear me?), are better writers, funnier, or better-looking.

I dislike Legalfool.com, because I had a client who was considering a bankruptcy today. BK was not the appropriate answer to her problems. But she hung up the phone with me, and went to LegalScrew’s website, where they promptly signed her up for an inappropriate bankruptcy, charged her $500 more than I charge for the same service (and dammit, I give more personal bk service than anyone I know), and then, when I pointed these facts out to her, and she tried to get her money back, she called the Legald’oh attorney, and he tried to tell her that he had already done ‘most of the work’ on her bankruptcy filing.

Oh, reeeaaaaaaaallly?

After talking to a client for 30 minutes, you had already ‘virtually completed her file?’

You sack of crap.

Let me tell you about preparing a bankruptcy file. Shhh, don’t tell anyone, this is a trade secret. Ready?

We all use software. Just like your accountant uses a mega-powered up version of TurboTax, us bankruptcy wizards put all your data into a piece of software that spits out the forms, then we push a button and the filing whizzes through the intertubes to Court-Land, where happy little elves pore over it to see how they can disqualify you.

Really. It’s true. Except the elves.

The real work in a bankruptcy petition comes in talking to and advising the client, gathering their information, getting certain forms signed by them, evaluating their situation for appropriateness of the bankruptcy solution, explaining things to them, and telling them how the rest of the process will play out. The role a good bankruptcy attorney plays is in being able to provide advice and planning, in an area of the law which is quite complicated and fraught with potential error.

No two bankruptcies are the same, and it’s not a matter of just “filling out the forms.” Rather, a good bankruptcy attorney will spend a good deal of time evaluating each client’s circumstances to be sure bankruptcy is in fact an appropriate solution, then the attorney will help the client do any necessary planning, give oodles of advice, check the petition for accuracy, help with the sticky situations (every bankruptcy has something unusual or odd), and represent the client at the 341 meeting.

This Legalpoo dunderhead did… exactly… NONE of that. He asked her some questions, and wants to charge a broke, scared woman $150 for his trouble.

Now I’ve got to call him in the morning and explain what a flaming piece of legal poo he really is.

I hate lawyers sometimes.

AARGH! My Wages Are Being Garnished! What Can I Do?

There are few feelings worse than suddenly hearing from your HR department that your wages are going to be garnished. Don’t panic! Here’s what to do.

Call your lawyer – Yes, this is self-serving, but we do this all day long. There’s nothing in this list that’s a secret. It’s just that we’re faster and better at it. However, you can do all this yourself.

Call the Creditor – You have nothing to lose by trying to have a conversation with the creditor and working out an arrangement to pay the debt back. If the creditor is open to setting up a payment plan, then you may be able to avoid having your wages garnished. The bad news is,  this is rarely successful. Some creditors who are understanding may be willing to work with you, but if you had been paying in the first place, they wouldn’t need to garnish, so often they believe they’re in better position by continuing your garnishment Creditors are for the most part not open to discussing payment arrangements once they have a garnishment order in place. However, it’s worth a shot, no?

File an Exemption -  In California you might possibly be able to stop the Wage Garnishment by filing an exemption. You may be able to have the wage garnishment stop or cut back the amount being garnished if you can show the money is necessary to support you or your family. If you can show the cash is required to make provision for the basic essentials of life then you might be able to stop the garnishment. There are a few steps you want to take to stop the garnishment thru registering a claim of exemptions in California.

First you need to:
File a Claim of Exemptions Form. Then,

Fill out a Financial Statement.

You must include a financial statement with your Claim of Exemptions. The financial statement details your income and your expenses.

Be sure to only use the official exemption and financial statement forms approved by the California Judicial Council, which are the same ones I linked above.

You can offer to pay the creditor a certain amount as part of your Claim of Exemptions. If the creditor does not oppose it then you may be in a position to avoid garnishment and repay the creditor. If the creditor opposes your Claim of Exemptions then a hearing will be held in which you will have to prove that garnishing your wages will result in you not being able to provide for you or your families support. At this hearing the judge will decide whether withholding 25% is to much and how much should be withheld from your paycheck.

File for Bankruptcy – You can stop the wage garnishment from proceeding by filing for bankruptcy in California. Most people may see this as a last resort but, honestly, bankruptcy is often a better option.

When you file for bankruptcy an ‘automatic stay’ is immediately put into place which stops your garnishment, or any collection action from any creditor, from continuing. Once we file your bankruptcy petition, the sheriff’s office will be informed of your filing and they will issue a release to your employer, which will stop the garnishment.

Depending on your circumstances, filing for bankruptcy to stop your wage garnishment may be your best option. It’s hard to say for certain without spending half an hour analyzing your situation with your bankruptcy attorney (ahem… me). If you have a wage garnishment in place then it’s pretty certain your credit is in bad shape already, and filing for bankruptcy isn’t going to make much difference.

if you know that you absolutely cannot afford to pay this debt, then you are simply posponing the inevitable. Eventually you will have to file and get rid of the debt via bankruptcy. The sooner you file for bankruptcy the sooner you can start rebuilding your credit. Most people who file for bankruptcy can improve their credit to a good level after 2 to 3 years from filing.

There are other options you can also seek to stop wage garnishment such as fighting the judgment obtained based on improper service. If the creditor improperly served you you may be able to temporarily halt the garnishment. Many times these methods are just delaying the inevitable since the creditor will more than likely correct what error was made and proceed with obtaining a judgment against you and garnishing your wages.

Credit Card Lawsuit Fail

Debt buyers such as CACH, LLC, Midland Funding, Unifund, Atlantic Credit & Finance, First Resolution Investment, LVNV Funding, Palisades Acquisitions, Asset Acceptance, Razor Capital, and Erin Capital Management don’t have the easiest time when they are forced to actually try their lawsuits.

None of these companies are actual credit card issuers. All of them are companies that buy defaulted accounts – and the right to collect on the outstanding balances. Buying credit card debt can be very lucrative and profitable, but when one of these a debt buying predators files suit, their cases usually have a fatal defect in them: The debt-buying company can’t prove they own the right to collect on your credit card bill. What this means to you is, they often can’t prove the defendant owes THEM – not that the defendant doesn’t owe the bill, but that the defendant does not owe the debt-buying company itself. They have to prove that they have the right to collect on your debt.

Debt buying is done in massive quantities, and is mostly computerized. This means there is often no “bill of sale” for the individual account on which they are suing, and without a bill of sale, the debt buyer can’t prove in court that they own the right to collect.

When confronted in court by knowledgeable defense counsel (ahem, like me),  as trial approaches, the debt buyers become increasingly nervous.  Even if they should draw a sympathetic judge – one who won’t hold them to the proof the law requires –  and they win, they may be unable to collect  from a defendant who has no assets (is “judgment-proof”), or who is scraping the couch cushions for nickels.

In short, as trial approaches,  debt buyers and their attorneys will look to get what they can, and if that number appears to be zero, to dismiss altogether.  Be warned though: This is only true when pressed by (ahem again) knowledgeable defense counsel.  So don’t try this at home, kids…..

Photo Credit: FireflytheGreat/Flickr

Secret Weapon Against Credit Card Suits

[Eric Ridley is a Santa Clarita & Ventura Credit Card Lawyer]

“I Was Just Served By the Credit Card Lawyers!”

It’s terrifying to watch the process server walk away from your front door, and stare at the brand-new summons and complaint in your now-shaking hands. You don’t know what to do, the language is cryptic at best, and you’re pissed.

If the Plaintiff who put those papers into your possession was your credit card company, or other creditor, you need to file your answer, WITHOUT DELAY. You need to get an experienced debt attorney on the job right now. IF you don’t file, you will lose many of your rights, and if your creditor gets a default judgment against you, you lose a lot of leverage.

One of the least-known techniques for defending a credit card lawsuit is demanding a bill of particulars from the Plaintiff. A plaintiff who sues on an account is not required to set forth the specifics of your account in their complaint (Cal. Code of Civil Procedure § 454).

However, on written demand by the defendant, the plaintiff is required to furnish a copy of the account on which the complaint is based or be the Plaintiff is precluded from giving evidence thereof (Cal. Code of Civil Procedure § 454). This procedure, known as a bill of particulars, forces the plaintiff to itemize the total sum upon which the complaint is based, and which they are suing you for.

Demand for a bill of particulars is less often used than it perhaps should be. However, for the defendant in an action on a credit account, it can be a terrifically powerful tool.

Perhaps a reason for its declining use is that attorneys often fail to recognize that, in the appropriate action, a demand for a bill of particulars can be very useful in forcing the plaintiff to provide all of the documentation supporting their claim This is particularly true when the plaintiff is an assignee of a finance or credit card company and may not have all of the documentation.

The demand for a bill of particulars must be in writing, and the bill of particulars must be delivered to the requesting party within 10 days, 15 days if the demand for a bill of particulars is served by mail. And if the original complaint or cross-complaint was verified the bill of particulars must also be verified.

If, after furnishing the itemization, plaintiff finds that it was incomplete or incorrect, plaintiff must seek leave of court (by noticed motion) to amend the bill of particulars just as he or she would to amend a pleading.

The bill of particulars furnished by the plaintiff is treated as an “amplification” of the pleadings. As such, it has the effect of a pleading. Consequently, at trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. See Baroni v. Musick (1934) 3 Cal. App. 2d 419, 421.

Apart from actions on a book account, demands for a bill of particulars arise most often in the context of common counts.Kawasho Internat., U.S.A. Inc. v. Lakewood Pipe Service, Inc., (1983) 152 Cal. App. 3d 785, 790. These include actions for:

(1) money had and received-Firpo v. Pacific Mut. Life Ins. Co., (1926) 80 Cal. App. 122, 125;

(2) money lent or paid-Moya v. Northrup, (1970) 10 Cal. App. 3d 276, 280;

(3) services and material-Jensen v. Dorr, (1911) 159 Cal. 742, 746-747;

(4) goods sold and delivered-Ben-Hur Mfg. Co. v. Empire Factors, (1960) 181 Cal. App. 2d 123, 131; and

(5) quantum meruit-Caruso v. Snap-Tite, Inc., (1969) 275 Cal. App. 2d 211, 214-215.

Even though the code authorizes a demand for a bill of particulars in an action “on an account,” it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677.

An account stated is a new agreement by the parties which supersedes the original contract and account. Jones v. Wilton, (1938) 10 Cal. 2d 493, 498 .

Any action on it is therefore based on only the final balance agreed on by the parties and not on the original individual items of account. Hallford v. Baird, (1938) 27 Cal. App. 2d 384, 398. Therefore, itemization of the account is not possible.

If the information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill of particulars. Burton v. Santa Barbara Nat’l Bank (1966) 247 Cal.App. 2d 427, 433.

If plaintiff does not deliver the bill of particulars, the Defendant may move the Court to bar the plaintiff from introducing evidence at trial in support of the account claimed.

Would You Like Fries With Your LLC?

This is an excerpt from an excellent article about why you should hire an experienced attorney for your small business formation, instead of McDonalds LegalZoom:

1. LegalZoom is slow. The company’s normal turnaround is 20-35 business days, unless you spend hundreds of additional dollars for a “rush” 7-10 business day service. Many of our colleagues turn around applications in 3-5 business days (or sooner, if need be).
2. You’re stuck with their prices. When you work with a lawyer, you can negotiate a flat fee or hourly rate depending on your needs. With online services, that is not an option.
3. The advertised prices are not what they seem. $149 for a corporation? That may be true in the abstract, but if you want quick service, advice on other registration matters, or anything else, you will easily spend hundreds of dollars more. The company charges $79 extra to get you a Federal Employer I.D. Number, something you can do online with the I.R.S. for free in less than five minutes.
4. No advice on which entity is best for you. Deciding which business entity is best for you is critical, with serious tax, liability, and other legal implications. Every business has different needs, and only by speaking with a lawyer about your goals and plans can you make an informed choice about the right business type.
5. You miss out on the latest options. Business entity law is changing. Many states now offer hybrid entities like benefit corporations and flexible use corporations that are helpful to companies pursing both profits and charitable goals. Lawyers versed in their state’s laws can keep you up to date on these developments.

Click here to read the rest. I couldn’t have said it better myself. Or, if I could have, I would have written it myself.

Image: Gee