Did You Stop Repaying Your Credit Card Debt?

With the economy still struggling, consumers are having a hard time paying off their credit card debt. Some have ceased making payments to credit card companies all together and have been ignoring collection calls. Law suits are filed against these consumers, and when a judgment is issued, unless a bankruptcy is filed, a creditor will most likely (sooner or later) obtain their money along with interest, costs and attorney fees.

If you are in this position, you should attempt to settle your debt with your creditors to the best of your ability without going to court. There are a few things you should take into account when attempting to negotiate the reduction of your credit card debt. If a creditor obtains a judgment, and  is successful in garnishing your wages, for example, there will be nothing (short of bankruptcy) that will persuade the creditor to cease the garnishment. Therefore, it is better to settle the debt when you still have some bargaining power. Creditors are usually willing to settle for a fraction of the total you owe.

Prior to your negotiations however, there are numerous points you should consider. One important aspect is assessing the chances that the creditor will actually pursue you and file an action against you. Therefore, the total amount of debt you owe to that creditor is an important consideration. The less you owe, the less the chance that the creditor will pursue you in court if you do not reach an agreement with them. If the amount of debt is under $3,000 for example, you should try to settle the debt for $2,000 or possibly even $1,500. Depending on the creditor, it may be cheaper for the creditor to settle with you for this number than to take on more expenditures to pursue you in court. You should also take into account factors such as whether your debt was assigned, your occupation and potential for earning in the future (since judgments are good for a long time, especially if properly renewed), and whether you have valuable assets (or may have valuable assets in the future).

Thus, a creditor may decide to pursue you in court if they believe that after they get a judgment against you, they have a good chance of enforcing it and recovering their money plus fees, interests, and costs. As such, they may be able to garnish your wages, lien your property, or levy your (and your spouses) bank accounts. Sometimes, they may also go after your vehicles or other valuable property you own or that should be coming to you. Therefore, once you receive a Notice of Authorization to File Suit, you should either hire an attorney to negotiate on your behalf, or contact the creditor directly to see if you can reach a settlement before a case is filed.

The creditor should save money if you reach a settlement before an action is filed, and your cooperation may allow the creditor to be more flexible with their numbers. Once the creditor files an action against you, however, settlement negotiations may get more complicated. Assuming you want to settle for less than what you owed, you should keep in mind that the creditor's numbers for settlement may increase because now its costs for collection have increased. However, this is also a case-by-case situation. In some cases, the creditor may actually be willing to settle with you for a lesser amount after they filed a law suit in order to avoid being involved in messy and expensive litigation. This is even more likely if the creditor has reason to believe that a judgment against you may be futile or difficult to enforce, and thus may be willing to settle with you at this point to ensure they get something on your account.

However, if the numbers at stake are high, and the chances for a judgment against you are pretty good (as well as a high likelihood of a successful enforcement of the judgment) the creditor may be more inclined to continue litigating instead of settling with you, and seek to recover all  of its costs and fees from you in your judgment.

In conclusion, if you understand how collection works, you may be able to settle for a good low amount with the creditor. If you are in this situation and are looking for an attorney to negotiate your debt(s) with a creditor for a reasonable fee, please contact my office.

DISCLAIMER: The information in this post should not be construed as legal advice. Every case is different and results vary based on the facts of each case. The above information is intended to provide general information about debt settlement.

Premarital Agreements: What to Know

California is a Community Property state. This means that there is a presumption that all assets- with few exceptions- acquired during marriage are Community Property. This means that the "Community" owns these assets 50/50. Absent a showing of an agreement between the parties (via a prenup or during marriage), or if title to the asset/property is taken in a form that overcomes the Community Property presumption, the burden of proof that a particular asset is Separate Property is on the party so contending.

Nevertheless, California allows the parties to opt out of the Community Property and Separate Property characterizations by agreement either as to particular assets or all acquisitions. Therefore, if the parties intend that assets acquired during marriage are to be Separate Property of the acquiring spouse, it must be clearly stated in the Premarital Agreement.

Generally, with few exceptions, the Premarital Agreement must be in writing and 'voluntarily' signed by both parties. In response to a 2000 California case, Marriage of Bonds, California enacted a statute stating that a Premarital Agreement is not signed "voluntarily" and thus is unenforceable unless the party against whom the enforcement is sought was 1) represented by independent legal counsel at the time the agreement was signed OR 2) waived representation in a separate writing AND was given at least 7 days to sign between being presented with the agreement & advised to seek legal counsel and the signing AND 3) if not represented by independant counsel, was fully informed in writing of terms and the basic effect of the agreement and what rights and obligations were being given up. This writing must also include the name and information of the person providing and explaining the rights and obligations.

Even if the agreement is signed voluntarily there may still be a defense to enforcement if the agreement is found to be "Unconscionable." Unconsionablilty is to be decided by the judge and not the jury. For all provisions (other then waiver of spousal support), the agreement is unenforceable if it was "unconsionable when made" AND there was no fair and full disclosure of the other party's property or financial obligations and the right to disclosure was not waived in writing, and the party seeking to avoid enforcement had no adequate knowledge of the other party's property or financial obligations.

What can the parties agree to in a Premarital Agreement? The agreement can govern the disposition of property on separation, divorce or death. The parties can also agree that after the marriage, each party's salary and wages shall be that party's separate property. They may also stipulate as to the disposition of life insurance or any other insurance proceeds, and can deal with any other matter including their personal rights and obligations. However, the parties may not limit child support through such an agreement. There are also limits on waiving spousal support. Waiving spousal support in a Premarital Agreement is unenforceable unless the party against whom enforcement is sought was represented by independent legal counsel at the time the agreement was signed OR if the provision regarding spousal support is unconscionable at time of enforcement even if the party was represented by independent legal counsel.

There are other ways to alter the character of an asset from Community Property to Separate Property and vice versa. If you plan on doing so, you should seek legal advice to make sure it is done correctly.

Why Attorney Fee Provisions are So Important for the 'Little Guy'

If you are a small business owner or an individual that is about to sign an agreement with a big(ger) company (or someone with deep pockets) it is probably in your best interest to request an 'attorney fee recovery' provision in your contract. Why? you ask...

As you probably already know, in our Legal System, parties are responsible for their own legal costs no matter who is victorious in a law suit. However, in a case arising from a contract, you can designate the losing party to pay the attorney fees arising from breach of contract within the agreement itself. Such provisions are not only inforcebale but also wise. Why is it in your best interest to have this provision? The short answer is: because $50,000.00 in legal fees mean more to you then to a deep pocket company- and they know this fact. Moreover, they are willing and able (and often do) take advantage of your financial vulnerability.

If the contract lacks an attorney fee recovery provision, you are more likely to settle your dispute for a lot less when your attorney fees become astronomically high and you just want this madness to stop. Sooner or later, your legal costs will become too much for you to bear, and they will be waiting for you to pull the plug or approach them ready to settle. Even if you can afford to litigate your case (when they throw every defense and counter-claim in your direction), if you lose, can you afford to appeal? Even if the trial court rules in your favor, the other side will surely appeal the decision, and your legal fees may continue to grow. The big guys can afford to take your case all the way to the Supreme Court if they have to.

You would be protecting yourself in multiple ways by including such a provision in your contract. Basically, if your claim has merit (and you thus have a good chance of success) the other side may think twice about low-balling you in a settlement or may even heed your demands to avoid litigation all together. You, on the otherhand, can protect yourself by seeking attorney advise about the odds of your success before filing a suit. If your chances of winning are not as great as you hoped then don't commence your action. Finally, the legal system benefits from such provisions because having them in contracts should (theoretically) reduce frivolous law suits- but no promises there...

Of course the situation is different if you are the one that breaches your end of the deal and a case is brought against you. Unless you have a good defense, you may be stuck paying the other side's fees in addition to your own and the judgment. So when signing an agreement, whether its an employment contract, a service contract or a contract for sale of goods, you should be willing and able to keep your end of the bargain, and then and only then will this provision serve in your favor. In sum, if your contract does not already provide for attorney fees paid for by the losing party, it would be prudent to get that in there. In addition, I would have a trusted attorney review your contract to make sure your rights are protected to the fullest.

Are you taking advantage of the elderly or just doing your job?

Elder Abuse in the Real Estate Business is unfortunately becoming more and more common. Some realtors target neighborhoods with seniors and continuously advertize their services, gain trust, and use 'scare tactics'- such as the declining housing market- to pressure seniors to sell their homes. For many of these seniors, selling their homes simply does not make sense. Many of them are already paid off and they may be on the hook for huge capital gains taxes. Furthermore, the seniors may not understand their options, all the terms, or even the fact that they agreed to sell their home at all. Because of their vulnerability and possible mobility issues, many seniors think that the realtors are acting in their best interest when they convince them to sell their home. Many do not consider simply renting out the house and living off the rent payments because they are not savvy enough. Most seniors would no doubt prefer to leave this asset for their children. A sophisticated client would be able to understand and rebuff these tactics, however, many seniors are too easily misled and pressured to sign agreements. They simply succumb to the pressure from the realtor without understanding the implications and consequences of their actions. Therefore, it could be scary for a realtor to deal with an individual of age, as they may face a serious allegation of elder financial abuse and risk their hard-earned reputation and discipline actions as well as a law suit.
In order to avoid problems, the honest realtor must be careful in the way they solicit, approach and conduct themselves with senior citizens. If the senior shows any signs of a weak mind, or even if he/she seems completely sharp and on their game, you need to take extra precautions to make sure that you are not pressuring them to do what they do not want to do, especially if it is not in their best interest. If you are not careful, not only is the transaction possibly voidable, but you may be risking accusations of elder financial abuse, unfair business practices, emotional distess, undue influence and breach of fiduciary duty. This is especially true if you are a dual agent and have the senior sign a dual agency agreement. A consent to such an agreement must be 'informed.' However, if the senior is vulnerable, weak, or has cognitive thinking problems, they may be able to claim lack of informed consent to dual representation in order to void the deal. Of course every case is different and they may not be able to prove any of these claims, nevertheless, when dealing with the elderly in your real estate business, in order to protect your reputation, do right by your clients and avoid unfounded allegations, you should cross your t's and dot your i's. In other words, you should make sure that you are not being overly aggressive in pressuring your client and that they have adequate consultation and advise, and are getting the best deal possible in the circumstances.