Category Archives: Rhode Island

Lien Removal via bankruptcy

MortgageLaw

Lien Removal via Bankruptcy

By Ginger B. Kelly, Esq. May 23, 2018

Judgment liens on residential real estate or automobile titles can become a big problem for owners who want to sell or refinance. A lien is a type of instrument that secures a debt, similar to the way a mortgage secures a loan or note or a lien on a title can secure an automobile loan. Liens can be created for a number of reasons, like  to pay a judgment on a credit card debt, unpaid taxes, mechanic’s liens for unpaid services or water or sewer charges or any judgment in a lawsuit to pay a debt of any kind, even unpaid car loans or leases.

In Massachusetts, a lien from a judgment in a lawsuit is called an execution. The execution secures the amount that was awarded to the plaintiff and enforces the judgment awarded.  For example, credit card companies like Discover, Synchrony, Citi Bank or Bank of America, debt buyers like Midland Funding, and auto loan companies, like Wells Fargo and Ford Motor Credit, commonly record executions after receiving a judgment. Some companies even record liens before a judgment, if there is reason to believe the property will be sold or encumbered in any way.

There are only a few ways that a defendant may remove an execution, in Massachusetts. One way is if the debtor pays the creditor/plaintiff the amount owed on the execution. Then the creditor may ask the court to release the execution or lien. The other way is to pay the creditor a lesser amount owed, also known as a “settlement.” If the creditor agrees to a lesser amount, the creditor or the debtor can ask the court to remove the execution after the debt is satisfied by payment. Another option is if the judgment secured by the lien is vacated (i.e. thrown out). Without the underlying judgment, the execution can be released.  The only problem with this is that even if the execution is released, the debt won’t necessarily go away. The creditor might be able to re-file the lawsuit. A third option is to have the lien avoided in a bankruptcy.

When a homeowner files for bankruptcy in Massachusetts, he or she can claim a homestead exemption that protects between $125,000 and $500,000 in equity in their personal residence. The Bankruptcy Code allows filers to remove liens, also known as “avoiding” liens, like executions that impair this exemption. Once avoided, the lien can be cleared from the title by recording or registering orders from the bankruptcy court at the registry of deeds.

At the Law Offices of Ginger B. Kelly, we often obtain orders to clear liens from many of our client’s real estate, automobile titles and other personal property.  By obtaining and recording or registering orders from the bankruptcy court, we help many of our clients refinance or sell their homes and other property without problems stemming from a lien. If you have a lien that poses a problem for your property, talk to us (free of charge) and we will evaluate your options.

The Law Offices of Ginger B. Kelly is now accepting clients in the Sturbridge, Southbridge, Dudley, Webster, Oxford, Charlton, Auburn, Spencer, Brookfield, Warren and all of the Worcester County Area. We can explore whether or not bankruptcy is the easy way out or not.  We have a comfortable place to talk and a fresh cup coffee waiting for you.

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ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.

To find out more, visit, http://www.attorneykelly.com or call us at (508) 784-1444.

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NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We cannot stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2018 by Ginger B. Kelly, Esq., all rights reserved.

 

 

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Filed under Auto Loans, Bankruptcy, Chapter 7, Collection, credit card debt, Debt, Debt Collection, Empowerment, Execution, Filing, Judgements, Law, Lawsuits, Legal, Legal Rights, Liens, Massachusetts, Massachusetts law, Mortgages, Rhode Island, Short Sale

With No Money, How Do I Pay My Attorney to File My Bankruptcy?

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How do I Pay My Attorney for My Bankruptcy?

By, Ginger Kelly, Esq.  April 10, 2018

The other day, a personal friend asked me (for a friend), whether or not they should she use their tax return tax refund to pay down their credit card bills or to replace the old and leaking roof on their home.  Their roof needed repairing badly.  Their credit card debt was very old and the payments were more than they could afford.  Even though I can’t make that final decision for this friend’s friend (or any of my clients), I can advise most folks of their legal options.  When people need to make a choice between a roof over their head or paying credit card bills, one good option available to most everyone is a fresh start.

In many or most situations, bankruptcy can give an individual or a couple, the fresh start they need. If you are in a position where you need to make important decisions like what to pay and what not to pay, like a roof on your home or to repair the vehicle you need to get to work, talk to a good bankruptcy attorney.  Most give free first consultations, like our office. Bankruptcy might be an option for you, or maybe not.  A person hasn’t lost but an hour of their time discussing their options with a good attorney.  Talking to a professional about options for taking care of debt, sometimes gives the clarity you need to make the right decisions for your future.

A client visited me the other day to discuss her situation. Apparently, she had debt exceeding any amount she could pay.  It wasn’t much debt, but it was a lot for her and that is important. Her earnings were barely more than the poverty level.  So while we had a nice hot cup of coffee, we talked about all of her options.  It was a nice pleasant, casual conversation.  I discovered that my client earned too much money to qualify for a free bankruptcy, through legal aid. She was sad and asked me what can be done.

Because her bankruptcy was not complex, I agreed to lower my fee. I gave her my best  fee option. Still, she was worried. Where would she find the money to pay the attorney fee? I asked her if she was getting a tax refund. She said yes, but it wasn’t enough. She was sickened with the idea of paying creditors all of her disposable income for years to come.

All of a sudden, she had an idea. She said, rather than trying to negotiate and pay down her credit card debt, using all of her disposable income, she said she could ask her uncle for the money. She said that she was thinking of asking him for a gift to help her pay down her loans anyway. Why not ask him for the same gift to pay her attorney’s fees?  Good idea! Sometimes asking relatives to help is a better option than worrying about how to pay overwhelming debt. I’ve had several clients in this kind of situation.

Once, a couple was in the same situation. The wife lost her job due to illness and then one thing led to another. They became deeply indebted, mostly to unsecured creditors (credit card companies). The best option for them was to file for bankruptcy. We talked a little bit and I gave them my best rate.  They were thankful, but without the extra cash, they didn’t know how to pay the legal fees. This was a problem for them.  However, determination overcomes lots of obstacles.

This couple scraped and saved and paid a little along. One spouse sold a baseball card collection and some tools.  The other sold some furniture they no longer needed. They used Craigslist and Facebook Yard Sale to sell a few more things.  They sent checks, one by one, to our office. Sometimes the check was small, sometimes large. We placed all of these funds into our client’s trust account, on hold for them until they finished paying. It didn’t take long. Within about four months, this couple paid all their fees, including the filing fee. This couple couldn’t have been happier.  I was so happy to help them in this way.

Once a person is determined to make a bad situation better, magic happens. There are more options for paying lawyer’s fees than these. Options are only limited by a person’s motivation, determination and imagination. Typically, I ask clients whether or not they have a tax refund coming to them.  This is a very good option for covering fees and things.  Then, I suggest asking friends or relatives for a gift.  At our office we have many ways of making your bankruptcy affordable, sometimes even free or at a reduced rate. Ask us how and perhaps we can help to make your fresh start,more affordable.  It may be easier than you think.

The Law Offices of Ginger B. Kelly is now accepting clients in the Sturbridge, Southbridge, Dudley, Webster, Oxford, Charlton, Auburn, Spencer, Brookfield, Warren and all of the Worcester County Area. We can explore whether or not bankruptcy is the easy way out or not.  We have a comfortable place to talk and a free pot of coffee waiting for you.

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ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture. To find out more, visit, http://www.attorneykelly.com or call us at (508) 784-1444.

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NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We cannot stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2018 by Ginger B. Kelly, Esq., all rights reserved.

 

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Filed under About Attorney Kelly, Bankruptcy, Chapter 7, Choosing a lawyer, Collection, credit card debt, Debt, Deficiency, Deficiency Debt, Filing, Financial, Foreclosure, Hiring Counsel, Judgements, Law, Lawsuits, Legal, Legal Rights, Liens, Massachusetts, Massachusetts law, Mortgages, payment, practical stuff, Rhode Island, Spouse, Student Loan Debt, tax refund, tax return, Uncategorized

Property Transferring No No’s, Before Filing Bankruptcy

Money in an envelope

Property Transferring No No’s, Before Filing Bankruptcy

by Attorney Ginger B. Kelly, February 23, 2018

There are a few types of transfers that will definitely not help if you want to file for bankruptcy to get a fresh start. One of those is types of transfers is called a prepetition transfer or (in other words) a fraudulent or irregular transfer.

Essentially, a prepetition transfer is a transfer of property (money or other things, including real estate) given to a person or creditor within 90 days from the date you file your petition. A prepetition transfer may also be a transfer of any property (money or other things, including real estate) to any insider, like a business partner, family or friend, within one year of your bankruptcy filing. Prepetition transfers are one of the biggest reasons why it is important to consult with a qualified, experienced, bankruptcy attorney, before you file. The prepetition transfer follows something called the 90 day rule.

Basically, the 90 day rule relates to debts that a debtor has paid, while insolvent, within the past 90 days of filing their bankruptcy petition and is set forth in section 547(b) of the Bankruptcy Code. The 90 day rule generally means that the US bankruptcy trustee has permission to avoid, (which means unwind or undo), any transfer made to a creditor or an insider if the transfer had an aggregate value of $600 or more provided that the transfer was made within 90 days from the date of the bankruptcy filing, and for any transfers made up to one year, if the person who received the transfer was an insider.

Here are a couple of examples of a fraudulent or irregular transfer:

Jane wanted to settle a debt before filing. She saved around $3,000 and was successful in negotiating with creditors to pay off one of her credit cards. Jane negotiated a settlement with blue credit company for $700 on October 30, 2017. She negotiated another settlement and paid red credit company $1,000 on November 1, 2017. After Jane negotiated successfully, with blue and red credit companies, she tried to negotiate with orange and green credit companies. She was unsuccessful. So Jane filed her bankruptcy without an attorney. Since she paid $700 to blue and $1,000 to red, her US Trustee avoided these transfers to get the money back. The trustee will allow all of Jane’s creditors to receive an equal share of the $1700 and prevent one particular creditor from benefiting more than the others. This is just one example. There are more.

The second section of the 90 day rule allows bankruptcy trustee to avoid any transfers of property made to any creditor that is also an insider (i.e., business partner, relative or friend) made between 90 days and one year of your bankruptcy filing date and exceeds and aggregate value of $600 or more.

In the next example, Steven bought his daughter Karen, a $15,000 car for graduating college. Steven paid $5,000 from funds he kept in his savings account and made the remainder of the purchase from a $10,000 line of credit on his credit card. On June 30, 2017, Steven transferred the title, over to his daughter.  In September of 2017, Steven lost his job. He was no longer able to make the remainder of Karen’s car payments. After four months without a job, Steven’s debt was piling up. So, in January 2018, Steven decided that he wanted to file chapter 7 bankruptcy to get a fresh financial start. If Steven were to file for bankruptcy before June 30, of 2018, there may be a good chance that the trustee would be able to avoid the car title transfer he made to his daughter, Karen. This would put the vehicle Steven just purchased for his daughter at risk. If Steven’s bankruptcy attorney knew of this transfer, the attorney would have warned Steven of the issues involving the purchase of Karen’s car prior to filing.

The fraudulent transfer rule involves all property, not just cash, and also applies to both chapters 7 and 13 bankruptcies. There are only a few exceptions. One, for example, is the exception for transfers made in the ordinary course of business, in other words, the property was sold to another (not an insider) for a fair and accurate value. But even so, bankruptcy can get complicated and for most folks, an attorney is usually needed to help out. Some people can’t imagine how to pay for a bankruptcy when they have no money. I’ll talk about that more, in my next article.

For now, if you’d like to set up an appointment to talk about affordability and your available options, call me. We can talk, face-to-face, and explore your options over a nice cup of coffee or tea.

The other day, a new client couple asked whether or not they should she use their tax return tax refund to pay down their credit card bills or use their tax refund to replace the roof on their home. Their roof needed repairing badly. Their credit card debt was very old. I cannot make that final decision for any of my clients, but I can advise them of their options. If you are in a position where you need to make important decisions like paying your credit card bills or paying for something extremely important, like a roof on your home, it may be a great idea to talk to a good attorney. Most give free first consultations.

If you are contemplating bankruptcy, and have some questions about a transfer you may have made or the 90 day rule, The Law Offices of Ginger B. Kelly is now accepting clients in the Sturbridge, Southbridge, Dudley, Webster, Oxford, Charlton, Auburn, Spencer, Brookfield, Warren and all of the Worcester County Area. We can explore whether or not bankruptcy is the easy way out or not.  We have a comfortable place to talk and a free pot of coffee waiting for you.

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ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture. To find out more, visit, http://www.attorneykelly.com or call us at (508) 784-1444.

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NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We cannot stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2018 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under Bankruptcy, Chapter 7, Choosing a lawyer, Collection, credit card debt, Debt, Debt Collection, Deficiency, Empowerment, Filing, Financial, Judgements, Law, Lawsuits, Massachusetts, Rhode Island, tax refund, tax return, Uncategorized

What to do when your car isn’t worth the loan payments

Auto loan and credit card debt

By Attorney Ginger Kelly, December 15, 2017

I’m seeing it over and over again with folks in our Central Massachusetts area.  Car loans are so expensive and cars lose their value so quickly, it is causing harm to consumers.  As soon as the loan papers are signed, folks are strapped to payments they can’t afford.  It’s a shame and it makes me mad, the same kind of mad I get when I see what payday lenders can do to hard working families.

One person I know (I won’t mention her name), who earns less than $1200 per month in Social Security Disability Income went to a dealer to get a car loan on a new car.  She pays over seven hundred dollars a month for rent, yet the dealer down the street gave her a car loan.  Her car loan payments were over $400 per month.  What’s going on here?  This is robbery, in my opinion.

Another client I had a long time ago, purchased a new car for well over twenty two thousand dollars.  Less than a year later, she lost her job.  She could no longer afford her monthly car payments.  She had to do something so she tried to negotiate a modification of her loan.  Without her good paying job, the lender said no.  To keep her home, she lost her car and surrendered it moments before it was repossessed.  Then, the dealer auctioned the car to pay the loan.  The car brought in only a few thousand dollars at auction.  The outstanding balance she owed to her lender was well over twelve thousand dollars.  How does a brand new car loose over ten thousand dollars in value in less than a year?  The car had very little miles and was in almost perfect condition.  I don’t understand it.  This client was compelled to file a Chapter 7 to keep a lien from being placed on her home.  This is how it goes.  It’s sad but true.

Another couple purchased a vehicle in 2011.  The vehicle cost was over twenty thousand dollars.  They successfully made payments for over four years. Then, the wife got sick and couldn’t work.  This caused the couple to lose over half of their income.  They decided to downsize and only drive one car to save money.  They surrendered the car to the lender.  The lender, in turn, sold the car and then charged this couple with a fifteen thousand dollar deficiency on the loan.  This amazing couple, going through some very difficult medical issues, could not pay the deficiency.  They were barely making their mortgage payments. Eventually, the lender took them to court. The lender got a judgment lien against the only asset they had, their home. The couple was devastated. This is why they came to me for help.

My husband was talking to a colleague at work, just today, who asked him why he drives a used car. My husband replied, “Why would I want a new car that’s 50% discounted as soon as I drive it home and if something happens to me and I can’t pay for it, the car gets repossessed and I won’t be able to pay the amount the lender will charge me after the car is surrendered.” He added, “My wife deals with this all the time. She sees people suffering in this type of situation. Why would I put my own finances in jeopardy just to drive a fancy new car?”  My husband said it bluntly and truthfully.

Frankly, I’m baffled at the inflated prices of vehicles these days. I’m astonished at the shady things that seem to be happening to consumers who need to drive to work and school.  What is going on in the lending and auto industry?  Who doesn’t need a car these days?  Maybe this is part of the problem. Consumers need reliable cars, so they do whatever they think is best to get one.  But there is hope.

Several of my clients have had to think about debt consolidation or even try this until they consulted with me and discussed the differences between Chapter 7 and Chapter 13 bankruptcy and how this works.

Basically, a Chapter 7 is a total liquidation of all of your debts and a way to get a fresh start for most debt, but a person has to qualify first.  A Chapter 13 is a way to manage your debts by way of a three or five year payment plan.  In a Chapter 13, a debtor pays into this plan and then, after the end of the three or five years, comes out with a fresh start.  Bankruptcy is not for everyone, but it may be the only way to get rid of these not only annoying, but quite often unconscionable auto loan deficiencies.  For some people it’s the only way to stop creditors from placing liens on things like other cars and homes after they had to surrender their car or have it repossessed for one reason or another.

Bankruptcy, for some, is an option worth exploring.  Most Bankruptcy cases will cost anywhere from zero dollars (for qualifying pro bono cases) up to four or five thousand dollars, for some Chapter 13 cases and anywhere in between.  Attorneys cannot tell a client how much a bankruptcy case will cost until they have the opportunity to evaluate the work involved, the type of Bankruptcy needed, the complication of assets and debt and other factors.  But the good thing is, most bankruptcy attorneys offer a free first consultation for most clients.  If they don’t, I suggest that you think about visiting a bankruptcy attorney who does.

The next question my clients ask, I’ll touch briefly upon.  How does someone pay for a Bankruptcy if they don’t have any money?  Well, it’s not easy but it’s do-able.  Some clients sell collections or other things to find the money.  Most clients use tax return refunds to pay for their new start in life.  This is a very good option, indeed.  Still others borrow the money from friends or relatives (I do not suggest that you do this, however, sometimes it’s done anyway).  They ask relatives or friends to help out with a gift.  Christmas temp jobs are wonderful for helping out in a pinch.  Most of the time, where there is a will there is a way.  People find ways to pay for their bankruptcy and are happy to do so.

Tax season is right around the corner.  If you are thinking about whether or not to fix the roof of your home or pay your credit card debt, you might want to consult with a bankruptcy attorney.  If your car payments are too much of a burden for you and you are thinking of surrendering your car, you might want to consult with a bankruptcy attorney.  These are the real issues to consider in this coming tax filing season. Your next tax refund may be the way you too can enjoy a new lease on life and not to be bothered by the heavy burden of bills you cannot pay.

The Law Office of Ginger B. Kelly is a boutique type law firm.  We are not Big Law.  We only handle a small number of clients at one time.  Each client gets personal attention and care.  Each client gets hours and hours of time devoted to their particular case. Our office is in an easy to find location in Charlton. This means you don’t have to drive to the big city of Worcester or Boston and pay for parking. We not only offer free parking, but free coffee in a calm and peaceful place. Your discussion with our senior attorney is very confidential. Your first consultations will last about an hour in a stress-free, homey type atmosphere.

If you want to try a lawyer who is different, a new type of lawyer, Attorney Kelly is the one. Attorney Kelly is a lawyer who is interested in cultivating a more peaceful, kind and gentler approach to law. Her practice is unique. Her zealous advocacy is tempered by her high ethical standards. Her love for people provides the foundation for her attentive personal service. As one client put it, “This is like an old fashioned law office, very comfortable.”

Book your appointment now and explore your best options for the New Year.  We’ll have a nice pot of coffee waiting for you when you visit.

Good luck and have the Happiest of Holidays!

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ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture. To find out more, visit, http://www.attorneykelly.com or call us at (508) 784-1444.
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NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We can not stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2017 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under Auto Loans, Bankruptcy, Chapter 7, Choosing a lawyer, Collection, credit card debt, Debt, Debt Collection, Deficiency, Hiring Counsel, Judgements, Law, Lawsuits, Legal, Liens, Massachusetts, practical stuff, Repossession, Rhode Island, tax refund, tax return, Uncategorized

Defending Debt Collections in Court: 6 Amazing Ways to Score Big Time

Boxing gloves business woman angry
Defending Debt Collections in Court: 6 Amazing Ways to Score Big Time

By Attorney Ginger Kelly
October 5, 2017

The New York Times ran a story in 2012 about the outpouring of credit card debt lawsuits being filed. They compared this widespread outbreak to the “robo-signing” fiasco which plagued the mortgage industry in years past. Now it seems the debt collection industry has taken up “robo-lawsuits” and are filing thousands of lawsuits a day all across America, including Massachusetts and Rhode Island. Lawsuits are being filed with the expectation that 99% of all defendants will not answer. In 2017, this is still a big problem.

Lots of people people being taken to court by debt collectors and lenders, many of them don’t owe a dime.  This is the new trend, plaguing thousands upon thousands of consumers in America today.

The biggest problem with these debt collection lawsuits is that about 90% of them are flawed. Debt collectors cannot prove that they are the ones owed the money.  They cannot prove how much money is owed, if any.  This is where consumers must take charge. Knowledge is power. Knowing things the debt collectors wish you didn’t know will often place you in the driver’s seat when it comes to Debt Collection law suits.

1. Start at the Beginning, Answer the Lawsuit.

If a debt collector files a lawsuit against you to collect a debt, you will receive a summons (typically in the mail). Many people ignore these types of summons, because they look like ordinary mail. Within the summons is a complaint. The complaint has a date to respond and instructions on how to file an answer.  Take note of the instructions and, if you like, look for a form to respond to the complaint.  In Massachusetts, Mass.gov has forms that can help you in small claims or in district court.  These forms can be easily filled out. You must remember to respond to the lawsuit, either personally or through your lawyer, by the date specified in the court papers. This will preserve your rights in court. It’s simple and doing maintains your right to challenge the debt in court.

Even if you owe this debt, a two-sentence response denying liability to the lawsuit filed in court will suffice. When you do this, chances are your law suit will likely lead to a negotiated settlement. This will save you money in the long run, because most of the time the debt amount is inaccurate. The number one mistake people make when they are sued is failing to respond to the notice in the complaint.

In your answer, you can simply Admit, Deny or express Lack of Knowledge to each statement made by the plaintiff debt collector. Of course you don’t admit to any statement unless you know it’s 100% true, so be honest. Don’t guess. If you don’t know whether or not, for example, the account number listed is your credit card number, or the debt amount is actually the amount of money owed, deny the claim. The same is true for all the allegations. If you do not understand what the plaintiff is saying, you should say, Lack of Knowledge. Lack of Knowledge simply means you don’t know whether that statement is true or not. Then, take your answer to the clerk of court and file it. Mail a copy to the other side. Ask the clerk the proper procedure for making copies and mailing.  Better yet, don’t bother taking chances or taking the day off from work to file papers with the clerk, talk to your lawyer and bring in the big guns to fight this for you. Pay your attorney to hassle with the paperwork.

Even if you don’t have an attorney, don’t be shy or embarrassed. Filing an answer doesn’t mean you want to avoid paying your debts. It only means you are a smart consumer. It means that you want the debt collector to do his job and prove their allegations against you. In any business transaction, it is always best to be sure that you actually owe the correct amount before paying it. The same applies to debt collection law suits. This is why you file a simple answer.

2. Find Out Who, Exactly, Owns the Right to Take You to Court

The collection agency must prove they have the right to collect this debt, if you ask them. This is their job. Make them work. All collection agencies have a duty to provide good evidence of a transfer of the signed credit card agreement, but only if you ask. If you don’t ask, they have no duty. So, if you ask and the other side does not produce paperwork, you you don’t understand it, ask the magistrate or the judge to dismiss the case.  When the plaintiff does not have the “chain of custody” paperwork giving them the right to collect this debt from you, they lose.

It’s rather enjoyable when a judge or magistrate takes a good look at the chain of custody paperwork many debt collectors provide. Some of them shake their head. Then, they dismiss the case. It’s that simple.

Mass Legal Help is a great website that gives examples of how to answer and challenge a debt collections law suit in a simple and complete manner.

3. Make the Debt Collector Prove the Amount Owed, Why Not?

This is a good one. In most debt collection law suits, there are so many charges upon charges, and fees no one understands, it’s not funny. Make the debt collection agency prove the amount owed by simply asking them to provide the original signed agreement and a balance on the account from zero to the present. If they can’t prove what you owe, the judge will not be able to make a ruling and will dismiss the case.  If they hand you a huge stack of paper, don’t feel threatened.  Either ask for them to show you what the papers mean, or ask for a continuance so you can examine the documents.

I talk a little bit more about this in my article, Debt Collection and 7 Deadly Sins. Take a quick look at point 3. Greed. This may help you.

4. Use the Statute of Limitations, Like a Boss

State law provides that debt collectors have a maximum amount of years they can legally sue you for debt they think you owe. This is different than collections.

A debt collector can bill you forever, but a debt collector cannot sue you in court to collect beyond the statute of limitations period. But again, a person needs to use this as a defense in court for it to be effective. When that statute of limitations period expires, the debt collector will lose if you defend using the statute of limitations. Use this as a defense and get your lawsuit dismissed. If it applies, it works!

Currently, the statute of limitations for almost any type of consumer debt in Massachusetts is six (6) years (MGL Chapter 260 Sec. 2)  In Rhode Island, it’s different.  Under Title 9, in Rhode Island, the statute of limitations for contracts and open accounts (credit cards), is ten (10) Years.  (RIGL 9-1-13(a))

In legal terms, a debt that has exceeded the statute of limitations is also called a “time barred” debt. When, exactly, the statute begins (or begins to toll), is different for different debt and for different state laws.  For credit card debt, typically the statute begins to toll from the date you made your last payment. You can find more info on Time barred debt defenses in Massachusetts in the online Mass law library.

There may be other legal arguments about the statute of limitations, like the conflict of laws and the significant relationships test. But essentially, the statute of limitations for most debt in Massachusetts is six years from the date of the debtor’s last transaction, or payment, on the account. Ask your attorney, if you have any questions and want to know if this statute applies in your case.

5. Sue the Debt Collector, Big Time

If a debt collector has violated any part of the Fair Debt Collection Practices Act (FDCPA), you may be able to sue them and could get a money damage award.  Consumers can successfully sue for violations of the debt collections practices act and are entitled to statutory damages of $1,000, plus punitive and economic damages.

This is where debt collection law suits can be actually quite enjoyable, for me anyway.  For you, maybe not so much.  As a lawyer, this is what I’ve been trained to do.

There’s nothing wrong with finding violations. Holding debt collectors to the higher standard they are called to perform is the right thing to do. Holding their feet to the fire, so to speak, is what’s best for consumers. This is why it’s not a bad idea to hire a lawyer to file a well-drafted answer to the complaint and attend court with you.

6. Explore Bankruptcy, the Fresh Start Option

If the debt you have is more than you can manage or the debt you are being sued for is large, it may make good sense to talk to an attorney. A good bankruptcy attorney will help you discover whether or not filing for bankruptcy is an option for you.

Filing for bankruptcy will keep you protected by the automatic stay, which will halt any and all debt collection efforts being made against you. If you are thinking about filing bankruptcy, talk to an attorney quickly. Don’t wait until the day before you are supposed to be in court. Lawyers can’t typically file bankruptcy paperwork the next day. That’s not how bankruptcies work. Bankruptcies are very paper-work intensive and tedious. To find out more read Bankruptcy, the Easy Way Out, Really? 

While it is possible to successfully defend a debt collection lawsuit, it’s often very difficult and emotionally charged. If the debt collection agency is successful in court, they can get a judgment entered against you. This, in turn, would allow the collection agency to garnish your wages or even go after your bank accounts or place liens on your home, vehicles or other property.

I tell all my clients that debt collection law suits are like traffic tickets. It never pays to ignore them. Reply to the summons. Go to court. What do you have to lose? But better than just “winging-it,” speak to a good bankruptcy and debtor defense lawyer first. Some law offices like ours, offer a free first consultation. When you hire a good debtor defense lawyer to help, there are virtually a hundred or more different defenses that can be used to protect you against garnishments and attachments.

Currently, we are taking defendant clients for debt collection law suits. Our first consultation is free. I’m always happy to meet new clients and am willing to work around your schedule. Exploring your best options with an experienced attorney can’t get much easier. This is only one way we are transforming the way people do business with lawyers.

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ABOUT ME: Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture. To find out more, visit, www.attorneykelly.com or call us at (508) 784-1444.

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NOTICE: This is an Advertisement. This post is not legal advice. Consult your attorney. Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet. Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other. We can not stress enough, if you need personal legal advice, always see your attorney. Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice. Seek legal advice and representation from your own personal attorney.

Copyright © 2017 by Ginger B. Kelly, Esq., all rights reserved.

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Filed under Bankruptcy, credit card debt, Debt, Debt Collection, Financial, Foreclosure, Hiring Counsel, Law, Lawsuits, Legal, Massachusetts, Massachusetts law, practical stuff, Rhode Island, Student Loan Debt, Trending, Uncategorized

Bankruptcy, the Easy Way Out. Really?

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By Ginger B. Kelly, Esq. Posted: May 16, 2017

In 2013 there were over a million bankruptcy filings.  In 2014, there were slightly less than a million.  Based on these filing numbers, something like 1 out of every 200 adults in the US file for bankruptcy (uscourts.gov). That’s a lot of people turning to bankruptcy.  Based on these figures, it appears as if bankruptcy seems like an easy way out, or is it?  Let’s consider a few things before making this assumption, like the implications of a filing and how bankruptcy compares to other debt relief options.

Is Bankruptcy Really the Easy Way Out?

Basically, a typical Chapter 7 bankruptcy (total liquidation) filing involves three basic steps.

#1.  Paperwork: To begin any bankruptcy case, a series of forms outlining your debts, assets, income, expenses, and related information need to be filed.  This is not like your ordinary tax return.  There are multiple papers that need to be filed. It’s a ton of paperwork.

#2. Trustee Meeting: After the petition, the schedules and all the paperwork has been filed, a court hearing date for a 341 Trustee Meeting will be scheduled.  The Trustee Meeting (also known as the Meeting of the Creditors), the bankruptcy trustee will ask you many questions.  In Massachusetts, you will be given notice that the meeting is recorded.  Most of the questions confirm the information in your paperwork.  The Trustee may ask you about how your debts and assets will be handled. For most Chapter 7 filers, the Trustee Meeting goes rather quickly, about 15 minutes or so.

#3.  Discharge – After the Trustee Meeting, assuming nothing goes wrong, there are no issues or complications, most of your debts will be discharged.  A few debts that will not be discharged are Student Loans, some IRS Tax Debt and a few other things.  Now the person filing Chapter 7 can begin their fresh start.

But wait…

Those three steps are an over-simplification of the process.  There is a lot more to it.  Many other important legal considerations must be dealt with, in a typical Chapter 7 bankruptcy case. This is why most people consult with a lawyer before beginning or considering any Chapter 7 or Chapter 13 bankruptcy case.

Even when the case is closed, there’s a lot to consider.  Credit card debts, medical debts, payday loans and most other unsecured debts, are gone, but other debts like student loans may not ever go away.  Secured debts, like car loans and home mortgages can also go away.  But if a person whats to keep their home or car or both, they will need to reaffirm those debts and continue making those payments.  Sometimes, a reaffirmation hearing is required.

So why is Bankruptcy complicated?

Primarily, there are two big potential problems, maybe more.

#1.  Valuable property at Risk.  Because a bankruptcy trustee will evaluate both debts and assets, to determine if some debt could be repaid by liquidating (selling) your assets, a filer runs the risk of losing some important assets.

For most people, the two primary things they don’t want to lose are automobiles and real estate.  These two assets are the easiest to sell.  If the value of a filer’s home or car (or both) is much greater than the loan you used to buy it, that property could potentially be sold to repay creditors.

For more on how this works, and on the exemption laws that protect your property in bankruptcy, see this article, Should I Choose Massachusetts or Federal Bankruptcy Exemptions.

#2.  Effect on credit scores. The other issues most people worry about when it comes to filing for bankruptcy is how this affects credit scores.  Everyone knows any bankruptcy will have a serious impact on a FICO score for several years.  The degree of impact depends upon how good or bad a filer’s credit is the day they file their petition.  The better the credit the more significant the drop will be.  If a filer’s credit was shot to begin with, or on the low side, (which is true for most people who file for bankruptcy), the effect will be significant, but less than a filer with good credit.

To sum it all up, when a person files for bankruptcy, they can expect that obtaining loans right away won’t be so easy.  Often, credit cards and even car loans are available, but typically at very high rates of interest.  However, when a filer sticks to a reasonable budget, and pays their bills on time, they will be off to a fresh start and better credit over time.

Alternatives to Bankruptcy.

It’s been said that bankruptcy is sort of the “ultimate weapon” of debt relief.  But this means that bankruptcy should only be used when other options fail.  A discharge of debt via bankruptcy is only available once every seven or more years; bankruptcy is not something a person should try first.  Some people work with credit management companies to reduce debt, but I do not recommend this in most cases.  Others try asking family for help or they find another source of income, like a second job.  Adjusting one’s budget is always a good plan.  Do this before considering filing for bankruptcy.

Next Steps…

For those who have tried every option and have no realistic alternatives, then it’s time to schedule a consultation with a bankruptcy lawyer. Your first consultation should not cost a dime and it’s a good time to find out if bankruptcy will work in your situation.  When you meet with your lawyer, be sure to ask a few important questions.

  • Based on my income and job situation, do I qualify for bankruptcy?
  • Can I get rid of all my debts in bankruptcy?
  • Is property I own (bring a list of a few big items) unprotected or at risk?

A quick consultation with a good lawyer will help you understand a few things bankruptcy can do to help and what the risks would likely be or whether or not there are better options.

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The Law Office of Ginger B. Kelly is now accepting new clients.  Call and schedule your first appointment.  We are a small law office offering your first confidential consultation, absolutely free of charge.

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.

To find out more, visit, www.attorneykelly.com, visit us at Ginger B. Kelly on Facebook or feel free to call us at (508) 784-1444.

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NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We cannot stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2017, by Ginger B. Kelly, Esq., all rights reserved.

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Filed under Bankruptcy, Debt, Debt Collection, Filing, Massachusetts, Massachusetts law, practical stuff, Rhode Island, Student Loan Debt, Uncategorized

Handle Student Loan Debt like a Boss

Gan Golan

“You snooze, you lose applies in every aspect of eliminating student loan debt.” ~Attorney Kelly

by Ginger B. Kelly, Esq.   Posted: March 9, 2017

We’ve all heard about, read about, or experienced it, crushing student debt.  Student loan debt can be quite paralyzing, overwhelming and downright horrifying.

That’s the bad news. The good news is, with good budgeting and planning, this beast like most others can be tamed. Dealing proactively with student loan debt is a far better plan than dealing with the nasty consequences of doing nothing and facing wage garnishment.  Wage garnishments are not pretty, believe me.

These are absolutely some of the best tips out there if you want to handle your student loan debt like a boss. Follow these, like a road map and find the light at the end of the dark student debt tunnel.

Get Over It, Get Your Paperwork Together and Pick Up the Phone 

The experts say, there is a time to cry, a time to grieve, and then there is a time to pull yourself up by the boot strings and get over it.  Getting over what grieves or worries you involves action. Ignoring this worrisome ‘ginormous’ problem won’t make it go away. Being proactive is what you do. It’s simple. Start by having your last tax return or your last W-2 ready, in hand, just in case. Then, call your student loan service provider or creditor.  Find out your best options. Write them down. If you need time to make a decision, take the time to think things through.   

Be upfront and honest. Transparency is the best policy. Tell your loan servicer or creditor your situation. This will help them explain to you, better, your different options for repayment. There are a lot of legit options to look into, like forbearance, deferment, and, in some special situations, even debt forgiveness.

Not asking about these things means living in fear. Fear, in this context, brings nothing but trouble. It’s easy to ask about the interest, the length of time to repay and things that may impact your budget. Oh yes – always draft a simple updated budget, an easy to create, yet amazing empowerment tool. This will help with your discussions, ideas and planning.

For most folks facing serious trouble, like unemployment, underemployment, long or short term disability, the best piece of advice I can offer is to look into an Income Based Repayment Plan (IBR). Oftentimes, an IBR results in a zero dollar or very small bottom line payment. An IBR is based on your current income and family size. Check this out. Save the deferments and forbearance plans, for real issues like an injury, death or serious problems. Use the IBR when you are facing underemployment or unemployment issues, long term.

Discovering Repayment Options Online is “easy-peasy”

With the number of tools out there to use, there is no better time than now to find out what your repayment amount will be. One helpful online tool that comes to mind is the Department of Education Federal Student Loan Repayment Plan Estimator.  Use it.

Calculate different repayment plans.  Find out what plans include debt forgiveness if you still owe a balance after paying on your loan for 10 to 25 years. It’s easy-peasy and actually, many of my clients, family and friends use this tool.  It’s amazing. You can do this.

Frugal is the New ‘Thing’ 

OK, hundreds of thousands of people understand, the job market is tough.  This is a fact.  Moving right along, there are work-a-rounds to get through this. Try a legit side hustle, part-time gig or freelance work, like Uber, Summer Pizza Delivery, Coaching, Home Sitting, Garden Center or Nursery work. Try selling extra stuff, collectibles or homemade things on eBay, Etsy or at a flea market. Then, (this is the best part) you can usually save money, even big bucks, by decreasing spending.

Decreasing spending gets easier and easier the more you try it and the more you know.  Create, rather than consume. Save, rather than spend. It’s fun and it’s better for our family, environment and our communities. Websites like the Frugal Girl or Minimalist Mom are good tools to help along the way.

My friend Andy Prescot writes a great blog called, The Art of Being Cheap.  We learned how to reduce our mobile phone bill over $100 per month.  We have saved well over $3600 the past three years, based on Andy’s good tips regarding an inexpensive, but excellent, mobile phone service plan and provider.  Andy also has more good tips on fugal things like how buy a refrigerator, start an Uber business part-time or whether or not to take a 401(k) loan.

Many of these websites are excellent. The top 25 frugal bloggers for 2016 can be found, here.

Challenge yourself to do at least 3 new things this month to save money.  My three favorites are find new mobile phone provider and plan, make home-made pizza (rather than go out to eat) and how to service and repair my car.  It’s absolutely a blast and empowering.  However, I’m warning you now, frugal is contagious. You’ll get hooked. Your friends will get hooked. Seriously, frugal is a thing.

Ask your Boss, Like a Boss

A growing trend in the last few years has been for employers to offer student loan repayment assistance to employees as a benefit. Unlike tuition reimbursement (which has been around for years), student loan repayment assistance is a relatively new idea, a concept that’s gaining a lot of traction these days.

Last year alone, according to a recent study, 3% of companies offered some type of assistance program to help employees pay down their student debt and one thing’s for sure, this number is growing and growing strong.

If you are looking for a new job or are a new hire, negotiate. Most workers don’t negotiate, yet employers report that they are willing to pay more. Use this to your advantage. Some employers are now offering student loan repayment as a benefit.

There are tons of articles designed to help with this. Daily Worth, US News and Thrive powered by ADP are all helpful websites. Find out what you need to know about this new perk.  Work it to your advantage.

If a raise or bonus is in your future, ask your current employer or HR department about ways they can help you reduce your current student loan debt. Perhaps they can apply a new raise or bonus to your existing debt repayment plan.     

Find Experienced Help or Seek a Vetted Lawyer, FREE!

There are a few different professionals can help. Financial advisers are available if they are certified and affiliated with a reputable bank.  Oftentimes a certified public accountant (CPA) is full of free and helpful information.  Towns and cities quite often offer free credit and financial counseling services.  Check with your local library.  Go online.  Look into your local town or government website.

The Charlton Town Website, is here. On the clubs and organization page is a list of places you can go to get help. Quite often, places like the Lions Club, Food Banks, Veteran’s groups and Business Associations are networks of helping hands, ready to offer assistance if you ask.

Librarians are a treasure. The Charlton Public Library link is here.  Ask your local librarian when or where there is a class on debt, financial management or student loan debt assistance. If they don’t know, they will find out for you. Quite often sofa.org has classes held at local libraries. Ask your librarian about this. Be persistent.

If your situation involves a little bit more than, “I hate my loan servicer and don’t know what to do about it,” an experienced student loan lawyer or debtor defense lawyer is probably your best bet. Here’s how…

  1. Lawyers can give you guidance regarding your legal rights and options.
  2. Lawyers can represent you in negotiating with your student loan creditor, services or debt collection agency.
  3. They can help you figure out the best way to work out delinquencies and defaults, or to apply for a discharge.
  4. They protect you from unfair debt collection practices or debt collector abuse.
  5. Lawyers manage credit disputes.
  6. Lawyers advocate and go to court for you, managing legal matters like student loan-related issues, collections lawsuits or cases involving schools or agencies for legal violations and causing harm.
  7. In Massachusetts, an experienced Massachusetts lawyer can sometimes get you money awards for violations of things like the FDCPA and Massachusetts law.

If you’re dealing with delinquency or default, considering filing for bankruptcy or applying for a disability discharge, a debtor defense/bankruptcy/student loan lawyer is the best way to fly.

 Why a Lawyer, Why Not DIY?

Since every person is different, and every situation is different, whether or not you should contact a student loan lawyer really depends on your specific circumstances.  In reality, you may or may not need a student loan lawyer.

There are really very few things that inherently require you to hire a lawyer.  Even filing for bankruptcy or defending against a collections lawsuit can be done ‘pro se,’ (pronounced, “pro-say”) meaning without legal representation or Do It Yourself (DIY).

While hiring a student loan or bankruptcy lawyer may not be required, a lawyer may be incredibly useful, especially if you’re feeling overwhelmed, you’re not sure of your legal options, you’ve been sued, or you’re dealing with a complex legal issue.

In other words, debtor defense and student loan lawyers can take a difficult, seemingly hopeless or complex situation and make it easy for you by offering steps and solutions to give you back your life and your ability to move forward.

Some lawyers, like myself, are successful at getting clients extra cha-ching, based on the mistakes and bad behavior of some debt collectors and creditors.

The Final Word

Before hiring a lawyer, talk to your student loan creditor or servicer and exhaust your options.  After using up all your options, get help immediately.  Like I said earlier, yes there is a ray of hope.  You can do this.  Check out lawyer websites in your area.  Pick up the phone.  Call a lawyer. I suggest that you find at least three local lawyers and comparison shop.  Ask each one of them if they offer a free consultation.  Then, schedule appointments on your own time.

For the unemployed or underemployed, quite often legal aid lawyers in your local area offer free or reduced fee services. In Worcester County the legal aid website is called Community Legal Aid.  Free is good. Free is frugal. Frugal is a new thing, remember?

Think of these tips as being your job.  It’s your job to save money and work toward the positive things in life.  In a sense, saving money and working toward the positive is powerful and self-soothing.  Do this. Do it now. Regain control of your new life. Feel liberated and pleased with your own good efforts. Empowerment feels good.  Empower yourself like a boss.

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The Law Office of Ginger B. Kelly is now accepting new clients.  Call and schedule your first appointment.  We are a small law office offering your first confidential consultation, absolutely free of charge.

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.

To find out more, visit, www.attorneykelly.com, visit us at Ginger B. Kelly on Facebook or feel free to call us at (508) 784-1444.

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NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We cannot stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015, 2016, 2017, by Ginger B. Kelly, Esq., all rights reserved.

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Filed under Bankruptcy, business law, Civil, civil law, Debt, Debt Collection, Financial, Hiring Counsel, Law, Legal, Massachusetts, News, practical stuff, Retirement Savings, Rhode Island, Student Loan Debt, Uncategorized

More about Attorney Kelly

Since 2005, Attorney Kelly has been practicing law.  With a strong background in corporate law, consumer finance, criminal defense, conservation and agriculture, Attorney Kelly is passionate about the things that really matter to you. Attorney Kelly knows that sometimes life gets complicated. Finding a good attorney shouldn’t be.

Relationship-building and maintaining affordability is only part of what we do. We also believe in honesty and transparency. This is why each issue and question, brought to our attention, is carefully considered and evaluated. If we are unable to accept your case, we will let you know and give you the best referral possible, free.

We also offer many of thUS District Court District of Rhode Islande best attorney referrals in Massachusetts and Rhode Island.

“Sometimes life gets complicated, finding a good attorney shouldn’t be.”

— Attorney Kelly

AREAS OF PRACTICE

BANKRUPTCY – What we do: Chapter 7, Chapter 13 Bankruptcy and Chapter 11 referrals for corporations, partnerships, LLC companies and individuals who do not qualify under Chapter 7 and 13.  On a limited scope basis, we may assist certain pro-se filers on a case-by-case basis.  What we don’t do:  We are not a “bankruptcy mill.”  We do not shuck-out bankruptcy documents without careful, individual attention to you and your situation.  We will never compromise quality, based on the size, complexity or simplicity of your case.

CIVL – What we do: Credit card and consumer defense, debtor’s rights, foreclosure, repossession, lien, garnishment, student loan defense, debt settlement and credit restoration.  We also handle accident and injury claims, civil infractions, contract, harassment, neighbor disputes, tort and landlord/tenant matters on a case-by-case basis.  We draft wills, medical directives (health care proxies) and financial power of attorney documents.  We accept issues regarding claims settlements, alternative dispute resolution (ADR) and Mediation, on a case-by-case basis.  We also draft contracts, including domain name purchase and sale transactions and transfers and review all types of contracts, including residential and commercial construction contracts.   What we don’t do:  Professional and Medical malpractice cases, complex multiparty litigation, tax and estate planning, intellectual property, patent, copyright and family law.  We also do not take class action or employment and labor dispute cases.

Corporate & Business – What we do:  Corporate formation and records management including non-profits and 401(c)(3) qualification.  We also advise on business compliance issues and financial transactions for corporations, contractors and small businesses. What we don’t do:  Publicly traded corporations, mergers and acquisitions, complex restructuring, capital markets, private equity and corporate governance.

Criminal Defense,  Arraignments, criminal records sealing, unlawful possession of a firearm or controlled substance, OUI/ Melanie’s Law, ignition interlock compliance and hardship license, search and seizure,  traffic, speeding and misdemeanor offenses, simple assault, diversion programs and sentencing alternatives, theft crimes, shoplifting, larceny and more.  Each criminal and traffic matter is evaluated on a case-by-case basis. What we don’t do: Appeals, major felony offenses and capital crimes.  Felony offenses involving firearms, robbery, deadly force, domestic violence and sex crimes.

Agriculture & Food, Right-to-farm and farming rights, insurance, zoning compliance, land tenure and tenancy, agriculture finance, organic certification and records management.  We also advocate on behalf of farmers, farmer’s markets, agricultural inspectors, homesteaders, small farmers, seed banks, coops and gardeners.  What we don’t do:  Labor disputes, worker’s compensation and immigration law.    

Conservation & Environmental Advocacy, Alternative energy and environmental due diligence, advocating and lobbying for conservation and clean energy issues, permitting, compliance and structured finance, septic, water and environmental compliance, wetlands, species-at-risk, air-noise-odor issues, contamination and environmental site research and advocacy.What we don’t do:  Brownfields, Eminent Domain, solid waste and EPA Superfund litigation.        

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.

To find out more, visit, www.attorneykelly.squarespace.com or www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

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NOTICE:  This is an Advertisement.  This post is not legal advice.  Consult your attorney.  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015, 2016, 2017 by Ginger B. Kelly, Esq., all rights reserved.

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Nervous about your new job? How to Ace Your Criminal Background Check, Even With a CWOF or a Filing!

The Job Interview

So you live in Rhode Island or Massachusetts and you’ve got a CWOF or a Filing, just like a lot of other people.  You want that new job.  You apply for the job and passed the interview process with flying colors.  Then, the interviewer or your future boss asks you for a routine criminal background check. This is the point where you get a little nervous.

When you apply for a job, some employers hinge an offer for employment based on passing certain phases of the employment process.  One of those phases, or steps to getting a new job, is a criminal background check.  A criminal background check is a snapshot of your criminal record.  In Massachusetts, a criminal records check is called a Massachusetts CORI (Criminal Offender Record Inquiry).  The equivalent, in Rhode Island, would be a Bureau of Criminal Identification check (“BCI”).  A BCI can be obtained, in person, from the State Attorney General’s Office, in Providence.  A CORI can be acquired, online, under certain terms and conditions.  Both require a consent form, signed by you.  This is the routine, in many instances.

In Rhode Island, there are a growing number of laws requiring individuals to have not only a state background check, but a fingerprint-based national background check.  The same is true for Massachusetts.  Alarm company workers and private security employees, bank workers, nursery school and daycare employees, nurses and adult day care facility workers are examples of the types of jobs that require extensive criminal background checks.  There are more.

No wonder why so many people worry about the background check stage of the employment process.  It’s the critical moment when a person must be concerned that someone will find out about their past.  Many of us have had a blemish on our record at one time or another. In some cases, a person may have been arrested for a criminal offense such as a DWI/OUI, but never convicted of the crime. Your case was not officially dismissed but you were not found guilty.  It’s a strange state limbo to be in, in Massachusetts and Rhode Island.

In Massachusetts, the deferred sentence form of alternative disposition is called a CWOF, which means that the case was “continued without a finding”.  In Rhode Island, deferred sentencing is often called, a “Filing.”  Both alternative dispositions are just about the same. Both result in the defendant making the request, the prosecutor (typically, the district attorney) agrees to a conditional guilty plea.  The defendant agrees, (or stipulates) that there was enough evidence for a reasonable jury to find the defendant guilty of the alleged crime, with a catch.

That catch is the condition.  The plea is conditioned upon the deferred sentence, which means the defendant will not fight the charges, but agree to be placed on probation in exchange for the prosecutor’s agreement not to prosecute unless something happens to revive the matter in the future, for example the defendant is charged with another crime or misdemeanor.  The defendant then must fulfill the probation agreement for the period of time the judge assigns.  At the end, the judge may then throw out the sentence and guilty plea and the incident is cleared from the defendant’s record.  Usually a CWOF or a Filing is continued for one year, but two years is not out of the question.  The deal is, as long as the defendant gets no more criminal charges, the underlying matter will be dismissed in a point and time in the future. With no charges, the record will be wiped clean.  In the future, the defendant will appear to have never committed the crime or the misdemeanor.  Looks like a great deal, and it is.

This is a great disposition for the future, especially when the facts are not good, or favorable for the defendant, but what about now?  What will show up with a deferred sentencing agreement, like a CWOF or a Filing?  What will my employer see when they run a background check?  This is something you’ll certainly want to know about, before they ask you to sign a consent form.

Rhode Island, as a general rule a criminal or misdemeanor Filing “may” not show up on BCI report, but sometimes blemishes like this will show up in other places.  In Rhode Island it is easy to see, online, basic facts about a person’s criminal history.  This is what your new boss won’t tell you.  Employers tend to look at everything carefully, even a Google search of your name and former names and online public records.  In Massachusetts, it’s a little bit different.

In Massachusetts, a CWOF will very likely appear when the person’s criminal record is exposed for an employer to who made the request.  On the other hand, without a CWOF, it is not quite as easy to discover a person’s Massachusetts arrest or conviction record, online or in other places, like a Google search.  But your new boss will know everything. They will find out you have a deferred sentence or alternative disposition.

The issue is, for both Rhode Island and Massachusetts, like many other states, potential employees may face negative consequences on job applications when a blemish like a deferred sentence shows up on their record.  Even a simple arrest without a conviction, in many instances, will prompt an employer to revoke a job offer.  There are no laws against this.

There is little that can be done about this, but there is something that can lessen the effects of an unfavorable background check.  In some instances, this one thing can take a bad situation and flip flop it into good.  Here’s how.

There is nothing better than a new employee who is unafraid to face the truth.  There is nothing wrong with point blank, no excuses, pure and genuine honesty.  So, the best way to protect yourself from this kind of situation is to be upfront with your employer.  Explain your situation, very briefly.  You need not go into great detail.  Simply tell them that you were not convicted, but something may show up on your criminal record.  It’s quite simple.

In the job interview process, honesty is always the best policy.  Being honest may prompt an employer to think more favorably about you.  You will show your interviewer or potential employer that you are an honest person.  You will show that you are unafraid to take ownership and responsibility of your past mistakes. These are great character traits no one can see in a resume or cover letter.  These things may also indicate that you could become a trustworthy employee.  When this happens, the deferred sentence (CWOF or Filing), with potential for being a bad thing, is turned into good. The opportunity to be honest and open about your past is an open door opportunity to show you take ownership of your past, you are brave and honest with you new boss.  In the worst case scenario, your CWOF or Filing will become a non-issue.  In this instance, your new boss may never bring this up again.

On the other hand, if you decide to take your chances with your employer, by not mentioning a current criminal mark or a blemish, the result will likely not be good.  Omitting facts, important to your employer, tends to show that a person has something to hide.  Omitting facts, by not disclosing things about your past that may be important, isn’t going to help you, it will only hurt you.  However, the moment you are open, unafraid and upfront, your job interview and background check should go just fine.

If not, and you in the worst possible scenario, you lose the interview or the job, simply move on and know that you did your very best.  When all’s said and done, no one can buy that good feeling you will have knowing that you did the right thing. Jobs will come and jobs will go, but personal integrity, which includes being open and honest, is simply one of those good things in life money can’t buy.

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ABOUT ME:  Attorney Kelly is an attorney in good standing, licensed to practice in both the Federal District and State Courts of Massachusetts and Rhode Island. Her law practice is focused on consumer debt, finance, bankruptcy and District Court matters. Attorney Kelly is experienced in both criminal and civil trial work. On a personal note, Attorney Kelly enjoys writing and other things, like conservation and agriculture.

To find out more, visit, www.attorneykelly.squarespace.com or www.attorneykelly.wordpress.com, or call us at (508) 784-1444.

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NOTICE:  Attorney Kelly does NOT provide legal advice to anyone via social media or anywhere over the Internet.  Any and all electronic posts and writings, by Attorney Kelly, does NOT establish any type of attorney-client relationship, whatsoever, neither perceived, actual, material, implied or other.  We can not stress enough, if you need personal legal advice, always see your attorney.  Do not rely upon Attorney Kelly’s posts, writings or any Internet information on websites or social media for your own personal legal advice.  Seek legal advice and representation from your own personal attorney.

Copyright © 2015 by Ginger B. Kelly, Esq., all rights reserved.

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July 17, 2015 · 7:30 am