Credit Reports and Affordable Bankruptcy Options FAQs

Credit Reports and Affordable Bankruptcy Options FAQs

By Ginger B. Kelly, Esq., April 3, 2019

I often get questions from my clients regarding how long a bankruptcy and debt will remain on their credit reports, after declaring or filing bankruptcy.  Here are a few of those frequently asked questions (FAQs) regarding credit reporting and how to pay for a lawyer to help with filing bankruptcy:

My bankruptcy was discharged about 10 years ago. What do I have to do to have it removed from my credit report?

~James, from Dudley

Dear James,

Since your bankruptcy and other accounts included within your bankruptcy will be deleted automatically, you don’t have to do anything to have them removed.

Although the date your discharge was recorded is the date your bankruptcy plan was completed, this date has nothing to do with when the information will be deleted. It is very possible that the information about your bankruptcy has been already deleted from your credit report.

How Long Does Bankruptcy Stay on the Credit Report?

~Dave, from Charlton

Dear Dave,

The date your bankruptcy will be deleted from your credit report is not set in stone.  Credit Bureaus will delete this public information anywhere from 7 to 10 years from the date you filed your bankruptcy.  The reason why this is not set in stone is because this depends upon the type of bankruptcy, or Chapter, you filed under.

A Chapter 13 bankruptcy is deleted 7 years from the date of filing because you are paying your creditors with a payment plan.  A Chapter 7 bankruptcy is deleted within 10 years from the date of filing because most, if not all, of your creditors will go without any payment.

When will accounts included in my bankruptcy be deleted from my credit report?

~Chrystal, from Southbridge

Dear Chrystal,

In both Chapters 7 and 13, individual accounts can remain on your credit report for seven years.  Typically, a person who files for bankruptcy is having serious difficulty payment all their debts.  Past due debts go into delinquency status. Delinquent debts, included in the bankruptcy will be deleted 7 years from the original delinquency date.  The original delinquency date is the date the account was late, which is typically 30 days past the due date.

Just because you declared bankruptcy, your original delinquency date is not altered.  This means that the time the account remains on your credit report is not extended, simply because you declared bankruptcy.

I need to file Chapter 7, but I don’t have any money to pay the legal fees, what can I do?

~Jen, from Webster

Dear Jen,

I totally understand your situation.  It seems crazy to have to pay a lawyer to file for bankruptcy when you can’t even pay your bills.  Isn’t that the reason why you need to file in the first place?

First and probably foremost, if you are really really poor and meet certain income guidelines, you may qualify for a reduced fee or legal aid.  I will point you in the right direction with this. I also offer reduced fees for certain individuals in dire situations.

Another suggestion is to apply your income tax refund to pay for your bankruptcy, rather than your back bills and old debt.  But be sure to contact your trusted bankruptcy attorney, first, before you decided to not pay debt or overdue bills.

Lastly, I can’t tell you how many people get help from family and friends the second they explain they are doing something helpful, like bankruptcy, to get a fresh start.

Other than these suggestions, we can discuss other options for payment at our first consultation.  If you can pay a little along into a payment plan until you have all of your fees paid, this may work for you.  Ask me how I can help you tailor a program that fits your needs and we can discuss any sensible option.  At our first consultation we will sit in my very quiet and completely confidential office and sip coffee if you like, and talk about all of your options and questions.

Thanks for your questions, James, Dave, Chrystal and Jen.  I’m always happy to help.

If you have legal questions, especially if you are contemplating bankruptcy or dealing with collections or debt collection law suits, Attorney Ginger Kelly is now accepting clients in the Dudley, Webster, Sturbridge, Fiskdale, Southbridge, Saundersdale, Oxford, North Oxford, Charlton, Charlton Depot, Auburn, Leicester, Rochdale, Spencer, Brookfield, East Brookfield, West Brookfield, North Brookfield, Warren, Brimfield, Wales, Palmer and Holland.  We can explore whether or not bankruptcy is the easy way out for you.  Our office is a quiet and comfortable place to talk, and a free pot of coffee will be waiting for you when you arrive.

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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 our website, 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 © 2019 by Ginger B. Kelly, Esq., all rights reserved

Clearing Financial Clutter, Minimalist Style

Bridid Kayaking Maine 2015

Clearing Financial Clutter, Minimalist Style

By Attorney Ginger B. Kelly, June 6, 2018

Living the minimalist lifestyle has been an ongoing passion of mine for at least the past five years. Working on becoming less cluttered, less driven by my own urges and material wants, is something I strive to do every day.  In turn, this leaves more time to become more creative, mindful and wise. This is a process, not a destination.

Minimalism is also a movement. It’s a personal organization life-design and a simpler way of life.  Living the simple less cluttered life, financially, tends to make your wallet and your heart more full and happy.  A person only needs a few things to find comfort and safety.  Likewise, a person only needs a very few tools to keep their financial life under control and comfortable.  Many credit cards and savings accounts will not bring more mental calmness and financial security.  In fact, a cluttered financial life will limit your options and your productivity.

USE ONE SIMPLE PLAN TO PAY YOURSELF FIRST

First and foremost, pay yourself.  Use one long term savings account, if possible.  The strategy is to save at least 10% for your long term retirement goals.  The minimalist strategy is to have only one 401(k) or one IRA and invest in this.  If you want to get fancy, have two accounts. For example, have one annuity and one 401(k) or have two 401(k) accounts, one for each spouse. If you are older, it is not uncommon to have more than one long term savings plan.  However, a multiplicity of whole life policies, stocks, savings bonds, mutual funds and 401(k) accounts will not help to drive your financial goals forward.  In fact, many accounts drive most folks crazy.  Avoid multiple fees, multiple financial institutions, more than one financial adviser and tons of “stuff” to look after. Then, save it and forget about it. Have the money taken out of your pay check, each and every pay period, and you’ll never miss it.  Out of sight, out of mind.  This really works!

Tip:  If you can’t save 10%, start with a minimum like 4%.  Increase this figure every year until you reach the goal of 10%.  Ask your tax accountant and financial adviser to help you plan a strategy that is realistic and works best for you.

HAVE ONE CHECKING ACCOUNT AND ONE SAVINGS ACCOUNT

Two or more bank accounts do not help clear the mind nor do they add value to your life. Two checking and savings accounts require extra passwords, extra time, extra books, extra statements, extra checks and other not so valuable things, like bank fees and charges. Get rid of all checking and savings accounts but one, unless you own a business. If you own a business have two, one for your business and one for your personal finances.

Also consider having only one savings account and using it. A savings account is an important tool, useful for short term goals, like car repairs and/or down payments, kid’s activities like summer camp, gifts and summer vacations. A good rule of thumb is to save 5% to 10% of your gross income each month for short term goals. That means, if you earn $2,000 per month, you should be stashing away at least $100 to $200 per month into short term savings.

Joint Account Tip: Sometimes it’s a good idea to have designated “jobs” when working together with joint accounts.  Find a simple plan and strategy for you, as a couple, and follow that.  Be honest with each other and communicate about everything important. If you can’t work together, seek counseling, a trusted priest, pastor or neutral party to help you correct underlying breakdowns, fears and anxieties.

Savings Tip:  Saving the equivalent of at least one car payment each month just for transportation is a great rule to follow, whether or not you actually have a car payment. If you aren’t saving anywhere from $100 to $400 per month, simply for transportation, then a $50 bus or mass transit pass may be the better option. For most folks, driving to work is far more important than an expensive mobile phone plan or eating out over and over again.

LIMIT CREDIT CARDS TO ONLY THREE

Get rid of all credit cards and revolving credit accounts but three. Why three? Most people remember and retain information very well in increments of three. Any more than three points, topics or tasks and the waters get muddy.  As a bankruptcy attorney I’ve seen a lot of things.  Having tons of credit cards seems to be a thing these days.  The point here is to not get hung up on the numbers of cards you have, but to shed unnecessary high interest cards and revolving accounts that charge unwanted fees. Caring for balances and payment dates is easy, when there are only three. No is a very empowering word.  Set a goal and use the word no to your advantage. When it comes to credit cards, less is best.

Tip: Don’t close credit card accounts in the days, weeks or months before making big purchases, like a home or a vehicle.  Closing credit card accounts can actually lower your credit scores for a time. Keep this in mind. After you’ve made that big purchase, then you can begin to close small revolving accounts you don’t need and ones with annual fees and things that do not add value to your financial well-being and peace of mind.

Another tip: Coordinate your credit card payments with your pay period.  This makes paying your cards, on time, every time, easier. Then, every pay period, when checking on your bank balance and direct deposit, pay your credit card bills (all at the same time). Having multiple due dates on many credit cards is nothing less than stressful and confusing. Ask your lender how to do this.

As we can see, there are a few financial “things” almost everyone needs to get by in life and plan a successful future. Too many and life gets complicated. Jen, Ray and Mary are great examples of this.

Jen and Ray are a couple who decided to take the minimalist approach and de-clutter their finances.  They gave themselves clear goals to de-clutter their finances, with broken-down steps on how they wanted to attain them.  Most importantly, they wrote down why they wanted to live more minimally and posted their goals on a calendar.  Over the course of just one year, they reduced their credit cards from ten to four. They eliminated six checking accounts to two. They also started a joint savings account and began to save money into Ray’s 401(k). They have saved over $300 in typical,  albeit unintentional, yearly overdraft fees and bank charges. Even better, Jen and Ray communicate much better and have far less stress and anxiety.

Mary, in taking her first steps toward getting rid of clutter, wrote down the fact that she didn’t need hundreds or useless items and financial tools to be happy, unique and to feel secure.  Part of Mary’s plan was to get rid credit cards and spend less.  She eliminated her JC Penny, WallMart and TJMaxx cards and decided to keep her cash-back Discover card and a lower interest Citi Bank card with no annual fee.  Mary also decided to have only one checking and one savings. Then, she started to save 10% of her income for a newer car purchase over the next year.  In less than eight months, Mary has saved over $100 in extra bank fees and interest charges and tucked away over $1,000 in her savings account. Mary doesn’t go out to eat very often anymore, but that’s OK.  She likes to cook.  For Mary, creating nice things, like meals, helps her to be a better person, all around.

You’ve heard it before, “everything you do and have in life (material things, relationships etc.) either adds value to your life or drags you down.” (author unknown) There is no third option. Things that add value to your life are things that make you happy, lead you to become more creative, healthier, wiser, and more energetic, develop your talents and so on. The same holds true for your finances.

Please feel free to comment, below.  We are open to your tips and ideas for getting rid of financial clutter and eliminating stress.

The Law Offices of Ginger B. Kelly is now accepting appointments to see clients in the Sturbridge, Southbridge, Dudley, Webster, Oxford, Sutton, Charlton, Auburn, Worcester, Framingham, Shrewsbury, Spencer, Brookfield, West Brookfield, Warren, Putnam, all of the Worcester County, parts of Hampden County and Northern Rhode Island.  We can explore whether or not bankruptcy is the easy way out in a comfortable, private place to talk.  We will have a fresh 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, gardening, 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.

Lien Removal via bankruptcy

dudley-district-court-sign-2-07242015

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.

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.

Documents Needed Prior to the 341 Trustee Meeting (aka Meeting of the Creditors)

documents-required

Just the other day I was driving to my own client’s 341 Trustee meeting in Worcester, Massachusetts and I thought, most people have no clue what documents are needed prior to most trustee meetings.  So, here is the short list.

The documents you will need are generally the same whether you are filing a Chapter 7 or Chapter 13 bankruptcy.  However, specific documentation requirements are something different in most every local jurisdiction.  Be sure to check your local rules or contact your attorney in your specific situation.  Your attorney can notify the trustee and find out what is needed.

Tax Returns

Minimally, and most importantly, your last year’s tax return is required to be delivered to the trustee minimally seven days prior to your 341 meeting.  Local rules and trustees vary on what is required prior to the meeting.  If you do not provide this to the trustee, prior to your meeting, your case could be dismissed.

Other than this, you will typically need to provide copies of your tax returns or tax transcripts for the last two years during your meeting.  I have found, over the years, that it is best if you sign your returns.  If you have tax returns that haven’t been filed, you will need to explain why you were not required to file.  If you did not have a valid reason for not filing, most trustees, especially in Chapter 13 cases, will require you to file your taxes and provide copies before concluding or approving your case.  Again, some trustees may require more tax returns while others may ask only for your most recent one.

Income

If you are an employee, you will need copies of pay stubs (also known as payment advances) for the six-month period prior to the bankruptcy.  You will also need your past two years W-2 forms.  If you collect Social Security or Social Security Disability Income, you will need your award letter.  If you are self-employed, you will probably need to provide a profit and loss statement for the same six-month period as well as business bank statements to verify the amounts on the statement. If you have income from other sources such as rental properties or unemployment, proof of this income is also required.

Real Estate

If you own real estate, a valuation of the property is required.  Generally, I recommend my client’s get a broker’s price opinion, or a full appraisal, but this depends upon the situation.  In some cases, this is not needed.  Mortgage statements showing current loan balances, deeds of trust, and proof of home insurance may also be required.

Vehicles

If you have titled vehicles, such as an automobile, you will be required to provide a recent copy of your vehicle registration.  I also recommend you have proof of insurance, and valuation information, such as a KBB (Kelly Blue Book) valuation (you can get this online). If you have a car loan, a recent loan statement showing how much you owe and what your monthly payment is, will be important.  For other titled property, such as boats or trucks, recent valuation may also be required.

Retirement Accounts and Other Bank Accounts

Recent bank account statements (checking and savings) and retirement account statements are usually very important to provide to the trustee.  Your attorney should have these.

Miscellaneous

If you have any other special circumstances, like child support or alimony, you will need to provide proof of these expenses.  Typically a copy of the judgment, order or agreement will be sufficient

Proof of Identification and Social Security Number   

This is very important.  When you go to your hearing with the trustee, you will be asked to show proof of identification.  So you must have these two things ready for the trustee at the beginning of your meeting.  Identification must be valid and include a recent photo.  Examples are a current state-issued ID card, a current driver’s license or valid passport.  You will also need to show proof of your social security number.  These documents are typically your state-issued social security card or employee-issued W-2 form.

That’s it. Now you are ready for your Meeting with the Trustee. If you have any questions or need any help, please give me a call. My direct line is 508-784-1014 (yes, this is the number that goes directly to me, personally).  I’ll be happy to set up your first free consultation, absolutely free.

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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.

The Domino Effect: Filing a First and Second Bankruptcy

domino-effect

By:  Ginger B. Kelly, Esq.

If anyone has played dominoes, they realize that one small mistake can cause an entire stack of dominoes to come crashing down.  The same is true for filing first and subsequent bankruptcies.  If a person has received a discharge or has filed for bankruptcy in the past, it’s important to know how soon they can file for bankruptcy again.  Time limitations for discharge under bankruptcy, after filing a prior bankruptcy in a Chapter 7 or Chapter 13 bankruptcy, may be tricky and are different under different circumstances and chapters.  This overview is intended to help potential filers make wise choices before the stack of dominoes collapses.

Technically, Time Limits Do Not Apply to Filings

In theory, there is no minimum time to wait before you can file for bankruptcy the second time around.  However, the dilemma with filing a second time is if a person files too soon after they received a discharge of their debts in a prior case, they can’t get another discharge. Filing too soon makes the second bankruptcy filing a waste of time and money.  This is why time frames apply to receiving a second discharge, not the filing of the case.

Filing Again Under the Same Chapter

If a person is filing under the same bankruptcy chapter, the time frames are different depending on whether they file successive Chapter 7 or Chapter 13 cases.

Filing Again Under Chapter 7

If the first discharge was under Chapter 7, a second discharge is not permitted under Chapter 7 again, until eight years from the date the first case was filed.

Filing Again Under Chapter 13

If the first discharge was under Chapter 13, a second discharge is not permitted under Chapter 13 again, until two years from the date the first case was filed.

The only issue with consecutive Chapter 13 bankruptcy cases filed too closely together is if the court refuses to confirm your Chapter 13 plan in the second case. Ordinarily, if the second plan is not confirmed a person can convert the bankruptcy to a Chapter 7.  However, in this set of circumstances, the rules for receiving a discharge under Chapter 7, after a discharge under Chapter 13 will prevent a person from getting a discharge in the converted case.  This is why converting a case from a Chapter 13 to a Chapter 7 too soon, isn’t a good idea in most situations.

Different Chapter Filings: Order Matters

If the second bankruptcy filing is under a different chapter then the first, order determines the time frame.

First, Chapter 13: Second, Chapter 7

If a person received their first discharge under Chapter 13, they cannot receive a discharge under any Chapter 7 case that is filed within six years from the date they filed the first Chapter 13.  Generally, the six-year waiting period exceptions are:

  •  if all the unsecured creditors were paid in full under the Chapter 13, or
  •  at least seventy percent of Chapter 13 claims were paid, the plan was proposed in good faith and the payments were the best effort possible.

First, Chapter 7:  Second, Chapter 13

If a person received a discharge under Chapter 7 first, they cannot receive a discharge under Chapter 13 filed within four years from the date the initial Chapter 7 was filed.

It’s a bit tricky if a person files the second case under Chapter 13, between four and eight years after they filed the first Chapter 7 when the court doesn’t approve the Chapter 13 plan.  If the Chapter 13 plan was not approved, “technically” a person could convert the case to a Chapter 7, but this isn’t a good idea because the rules for successive Chapter 7 discharges would kick in.  In this situation, if the time frame between subsequent filings is not eight years, a person will not receive a discharge in the converted case. If this happens, it is probably best to ask for a dismissal of the subsequent Chapter 13 case.

When a Second Filing May be Helpful, Even Without a Discharge

In certain situations, filing a Chapter 13 case immediately after getting a Chapter 7 discharge might be beneficial.  This is often referred to as a Chapter 20 bankruptcy.

In this situation, for example, a person wants the protection of the bankruptcy court while paying something like a tax debt or non-dischargeable priority debts, under a Chapter 13 plan. Whether or not they will benefit from this type of Chapter 20 bankruptcy depends on the circumstances and the case law in their jurisdiction.  But despite its benefits, a Chapter 20 has many drawbacks and can be subject to bad faith filing objections.  An experienced bankruptcy lawyer in your area would need to be consulted for advice on this topic.

First Case Not Discharged

If the first bankruptcy case did not result in a discharge, typically, a person can file for bankruptcy again with no limitations on the second discharge.

Discharge vs. Dismissal

First, it may be important to note that there is a big difference between a discharge and a dismissal.  A discharge is an order from the bankruptcy court releasing a person from their debts.  A dismissal from a bankruptcy court is an order removing the case from the docket, typically without a discharge.  

If a person successfully completes a case and obtains a discharge, they are no longer on the hook for debts discharged in the bankruptcy. However, if a case gets dismissed, the person who filed will lose the protection of the automatic stay and their creditors are free to come after them to collect their debts.

First Case Dismissal

If a bankruptcy case was dismissed, a person can file again unless the court orders otherwise.  If the case was dismissed for failure to obey a court order, failure to appear in the case, or voluntarily dismissed after a creditor filed a motion for relief from the bankruptcy stay, a 180-day waiting rule applies.  However, quite often there are different rules regarding the bankruptcy stay.  A stay is an automatic injunction that stops actions by creditors, with certain exceptions, to collect debts from a debtor who has declared bankruptcy.

First Case Discharge Denied

If the discharge was denied in the first case, a person typically may file again but will probably not be entitled to a discharge of the debts from the first case. This is another special circumstance where it is always smart to seek an experienced bankruptcy lawyer for advice.

The take-away from all of this is, as a general rule, if a person files for bankruptcy too soon after they received a previous bankruptcy discharge, they cannot receive another discharge.  Like a neat little stack of dominoes, the second case is very dependent upon the first.  The good news is, avoiding mistakes can be easy.  Consulting an experienced attorney is the first step.

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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, 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 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.

 

Debt Collection and 7 Deadly Sins

seven-deadly-sins by Drew Fairweather

Every year thousands of consumers get sued by debt collectors.  Beating a debt collection lawsuit is easier than most people realize.  Most of the time, the biggest issues people face are their own shortcomings.  Legal strategies are great, but they serve no good when people are paralyzed by fear, anger, sloth, envy or a number of deadly sins regarding dealing with debt collectors.

 1. Sloth    

The number one mistake defendants make when they are sued for a debt is giving up.  Doing nothing is a form of sloth.

Failing to respond to a summons and complaint, is most certainly the number one reason why most people lose and have default legal Judgments entered against them.  On the other hand, responding to a lawsuit opens the door to many promising things, like stopping collections, wage garnishments or a levy (taking money from your bank account).

Even if you owe the collector money, a two-sentence response simply denying liability to the lawsuit filed in court will tilt the scales in your favor.  Always do your best to consult a lawyer, first.  Even so, filing a response to the lawsuit is called an “Answer,” with the Clerk of Court, is generally the easiest first step to take.   Check your timelines on this.  Some jurisdictions only allow 10 to 20 days to respond after service of process, which also means after the defendant receives a notice and summons.  Keep an Answer simple and to the point.  Never ever make an admission.

Ask your Clerk of Court questions about the forms used to file an Answer or how to file an Answer.   Typically, Clerks are super helpful but keep in mind that they are never allowed to give legal advice.

Give up sloth.  Put one foot in front of the other, seek legal help and file an Answer with the Court and your chances of winning increase exponentially!

2. Pride

Debtors who give up on Collections lawsuits almost always have regrets.   Life after answering the notice and complaint involves a little bit more than simply showing up.  But it’s not that difficult.  One of the things that must be done is to challenge the collector’s ability to sue.  However, a defendant can never challenge anything effectively when pride gets in the way.

Pride steps in and wreaks havoc with our positive energy.  Pride opens door to excuses as to why we can’t or don’t want to move forward.  Pride paves the way for doing nothing.

The term, “Standing” means the legal right to sue.  Some collectors, also known as debt buyers, or junk debt buyers, often buy debt for pennies on the dollar.  They try to file lawsuits (or sue) against debtors to collect money on the debt that they buy.  When asked, collectors must prove that they have the legal right to collect.  Without the legal right to sue, debt collectors lack standing.  Standing is typically shown by a transfer or assignment of the original, signed credit card agreement from the initial creditor to the debt collector or debt buyer.  Many don’t have a signed transfer agreement.  Many don’t have a signed, initial credit card agreement.  When when the collector doesn’t produce a proper assignment or agreement, or the document they produce is inaccurate or not an original, a defendant can ask for the case to be dismissed, because of “lack of standing.”

Asking the Court (Judge or Magistrate) to dismiss a case, based on lack of standing or lack of chain of custody of paperwork is usually pretty straightforward.  Your lawyer will help you.  Chain of custody means that the collector must prove that they are, in fact, the ones who were transferred the initial signed agreement.

On a few occasions, I’ve noticed judges look at the paperwork collectors provide and comment, “you must be joking.”  On the other hand, some judges look at the paperwork and think, “It’s all good.”  It’s not always easy to tell the results, at least in Massachusetts.  Every jurisdiction is a little different.  If challenges aren’t raised, like a challenge to standing, the lawsuit is lost, plain and simple.

In essence, even when the effort is made to attend a debt collection lawsuit, pride can strangle all positive energy and be a reason for making excuses for not demanding the debt collector show you why they have any legal authority to ask you to pay them money.

3. Greed.

I’ll never understand why defendants never challenge the amount owed on a debt. Seriously, greed is more common than most people realize.  Often human beings become so greedy with time and energy, they can’t even ask simple questions.  Challenge the accuracy of the calculations on the debt and combat being paralyzed by greed.

When your lawyer, or you, choose to challenge the accuracy of the debt, the Judge or Magistrate will require the debt collector to show the original signed documents and all the paperwork. This means that the paperwork must prove the balance of the debt, from the first day to the present.  Every defendant has a right to know how an amount allegedly owed is calculated and why.  Be vigilant and ask for accurate figures on the debt.

More often than not, debt collectors miss documents or miscalculate and are not accurate.  Because debts typically change hands multiple times, it is very likely there will be some errors in the figures and documents.  If there are errors in the case, a defendant may ask for the case to be dismissed.

In a 2015 news article, a former employee of a major creditor mentioned that as many as a quarter of the files showed incorrect amounts owed.  If the credit card issuers can’t provide accurate documentation, there’s an excellent chance you will win.

4. Wrath.

 Yes, debt collectors make us mad.  However, many people get so angry that they do nothing.  Anger (like most negative emotions) paralyzes us from doing the right thing.  It’s easy to change this negative emotion by talking to your lawyer and by making solid plans to challenge the lawsuit against you in a timely manner.  Don’t let wrath, or any other negative emotions kill positive energy.

In Massachusetts, in most cases with a few exceptions, creditors have a maximum of six years to collect on most credit card (revolving) debt.  Other states and jurisdictions are different.  Ask your lawyer about the Statute of Limitations in your jurisdiction.

The Statute of Limitations is an awesome defense to have in your legal defense tool box, so to speak.  Sometimes, collectors don’t stop collecting and taking people to court, even after the Statute of Limitations has run out.  The reason is because debt collectors are hoping and assuming people don’t want to be bothered and they won’t show up in Court.  This is true.  But defendants who raise the Statute of Limitations defense will typically win.  With a solid Statute of Limitations defense, the Court will recognize that the debt can no longer be collected upon and, like magic, a Court will dismiss a collections lawsuit.

It is important to know how to legally apply this handy dandy tool.  Also, paying or agreeing to pay on an old debt may start the Statute of Limitations clock ticking all over again.  Never pay on an old debt without first consulting a good lawyer.  If the Statute of Limitations has expired, and it is used properly and timely as a viable defense, a collector stands a good chance of losing.

Tame the wrath by fighting fairly and civilly.  Wrath turned around and channeled into controlled, positive, motivated beneficial action is a very good thing, indeed.

5. Gluttony.

 Plain and simple, most everyone has the right to take action against collectors, but they don’t.  This could simply be a matter of gluttony?  Perhaps.  Retaining paralyzing feelings of grief, powerlessness, becoming overly indulgent in thoughts that are self-critical, are negative negative feelings.  Self indulgence is a form of gluttony.  Gluttony is crippling. The negative energy of gluttony gets in the way of taking positive action.

There are rules and laws, under the Fair Debt Collection Practices Act (FDCPA) that may turn the tide in your favor and help you to turn gluttony into positive energy.  If you have consulted a good lawyer, chances are that you may be able to discuss the odds of getting a good money award from a debt collector if they violated any part of the FDCPA.  People who successfully sue for violations of the FDCPA may be entitled to receive from the collector, statutory damages of $1000, plus punitive and economic damages, and even attorney’s fees and costs.  Extra money is always a welcome bonus!  This is also a good reason to hire a good consumer defense and bankruptcy attorney who can help.

Pity and self-gluttony have no place if you want to win a lawsuit.  Snooze and you lose. This is the very thing debt collectors are counting on.

6. Lust.

Lust is a big one.  Have you ever been around someone who loves themselves so much, they think they can do things all by themselves, when they really need help?  It is very important to become a smart consumer and know when to find help.  Smart people tend to kick lust to the curb.  Call a professional to get the best results possible.  In other words, bring out the big guns.

Once a collector is notified that you are represented by an attorney, it’s usually all over.  Most collectors are more than anxious to settle a debt, out of court, rather than fight over it with a lawyer.  Hesitating hiring a lawyer will only serve to reduce your chances of winning, significantly.

Attorneys who regularly take these types of cases will typically offer a free consultation.  On some occasions, they may represent you for free if they think the collector has broken the law.  This is because the attorney will expect to collect their fees from the collector.  Most people don’t know this.

Lust has no place for winners.  Fighting a legal battle with expert help makes sense.

7. Envy  

Most people think Bankruptcy is for “those” people.  If you really believe that Bankruptcy is for those pitiful people who have no common sense or self control, or for people who want to take advantage of the system, guess again.  Bankruptcy laws are designed so that fraudulent claims are virtually non-existent.  Furthermore, some of the most successful people in our country legitimately and legally have filed successful Bankruptcy Petitions, for very good reasons.

Everyone makes mistakes and goes through struggles in life.  How people overcome and manage those struggles makes all the difference.  In the US today, we are lucky enough to have Bankruptcy law.  Think of Bankruptcy as a beneficial tool, a way to move forward, unlike envy that will hold most of us back.

Bankruptcy often is the best solution because it will not only give a person a fresh start, Bankruptcy will also stop all collections.  The day a Bankruptcy Petition is filed with the Court, a person will be protected from all collection efforts by something called an “automatic stay.”

See if Bankruptcy is an option suitable for you.  A good lawyer will be happy to guide you to make the very best decisions for you.

Tip:  Monitor your credit scores and credit reports from time to time to see where you stand.  You are entitled to one free annual credit report from all three major credit reporting agencies, each year.  Search on the Internet or ask your lawyer or certified public accountant (CPA) how to obtain a free credit report and do this, annually.

Being paralyzed by any of these deadly sins happens to the best of us.   Indulging in any one of these things will greatly reduce the odds in your favor.  Vigilance, by taking action now, is your best path to success.

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

Facebook Posts can Land You in Jail

One does not simply post on Facebook

Posting whatever you want on Facebook might not be a good idea, as in the case of Ebony Dickens of East Point Georgia.

Based on an April 30, 2015 report on CNN, Ebony Dickens, of East Point, Georgia, posted threats to the police under the name, Tiffany Milan, on social media.  According to CNN, she posted this on Facebook, “I thought about shooting every white cop I see in the head until I’m either caught by the police or killed by them. Ha!!!! I think I can pull it off. Might kill at least 15 tomorrow, I’m plotting now.”

Soon after Ms. Dickens posted the threats, she deleted her Tiffany Milan Facebook account.  She erased all her threatening posts.  But that didn’t matter.  Erasing the threats didn’t help.  She already published them to others.  By virtue of her Facebook posts, Ms. Dickens got arrested.  She was arrested not only by the local authorities, but by homeland security.  Apparently, Ms. Dickens “allegedly” violated local law, but State and Federal law.  I say, “allegedly” because Ms. Dickens case is still pending.  Even so, it’s important to look at US free speech law and why, oftentimes, comments made on Facebook aren’t protected speech.

Based on this story, making Facebook posts about shooting the cops using a fake name may not be a good idea. Protected and lawful speech, of any kind, does not involve making true threats, using fighting words to incite violence and cyber-bullying.  Ranting on Facebook, or anywhere, may not always be a good idea, no matter appealing it may seem to be for some.  First Amendment Freedom of Speech law is a not a get-out-of-jail free card for offenses like these.  Freedom of Speech rights do not make one immune from arrest and jail. People can also file civil suits against others for making certain kinds of speech.

Under the First Amendment of the US Constitution, people can get arrested for speech involving obscenity, child pornography, misleading commercial speech, fighting words, cyber bullying and true threats. For example, free speech does not include (for no good reason) yelling “fire” in a crowded theater.  This is a classic example.  People get arrested and end up in jail for telling others, “I’m going to kill you.” Also, making up stories about others is not always harmless. For example, telling someone your friend has “Ebola,” or somethings similar, when in fact they do not, can get a person in a lot of legal trouble.

In the business world, free speech does not include making unsupported claims.  When a commercial producer claims their product “builds strong bodies 12 ways,” or wants to show that their product is healthy, the producer and all the stakeholders better support this sort of claim with strong evidence.  Commercial claims may be unprotected speech, provided there is no proof behind such claims.

Cartoons and political satire, like the Charlie Hebdo cartoon depicting the Islamic prophet Mohammed, is an example of a form of US free speech. Under US law, cartoonists and artists may publish political cartoons and politically charged satire.  This is considered protected free speech. Under the laws of other countries, such cartoonist speech is not always protected. Whether or not political cartoons are always wise or prudent to publish remains controversial. Even so, there is no complete list of US constitutional freedom of speech examples that explain what does or does not constitute freedom of speech.

Concerning freedom of speech and the laws of free speech, each situation and every fact pattern is not the same.  Each person and each legal case is different.  This is why a professional legal analysis of every situation is important. This type of case-by-case basis legal examination is what legal professionals call, “fact-intensive” legal analysis.  Fact intensive legal analysis is what lawyers and judges are trained to do.  This is why it’s always important to consult your lawyer and be sure to ask them any legal questions regarding freedom of speech guarantees, the US Constitution or any law, before you act or draw conclusions about legal matters.

Under First Amendment free speech, free speech does not include true threats.  However, treats made in humor or funny stories, like exaggerated statements or claims not meant to be taken literally, tends to be protected speech in certain circumstances.  For example, Saturday Night Live, (“SNL”), a comedy show shown on TV on Saturday night, has made sketches mocking the blind and making racist jokes about people who go to Starbucks, (things like this).  SNL made a fake video defaming Thailand. These were shocking and offensive to a lot of folks. SNL poked fun at real people. Comedians verbalized threats and violence.

Humor performed by professional comedians or published by professional cartoonists is considered protected speech. Jokes, cartoons, sketches and speech, shared by professional comedians and artists is part of what they do for good reasons. Professional comedians, cartoonists, artists and the like, create artistic and scientific works that benefit the public.  Often, artistic work involves sarcastic comedy, political satire, parody and shocking artistic work that may involve certain forms of pornography. Legality of the free speech and the intent of that speech (which is one of many legal elements that must be shown) is quite often determined by the virtue of one’s profession.

The intent of an artist, by virtue of the artistic profession, is to add artistic value to most people and the general public, whether or not this is shocking to a few individuals.  The intent of a comedian, by virtue of the comedic profession, is to entertain and invoke thought, discussion and to inject humor or satire into a skit or cartoon, not to cause specific harm to others.  Many times, these forms of free speech are political in nature.  Political figures and political issues are permissible targets of free speech.  Not everyone or everything fits into this category. Every case is different.

Even on occasion, even comedians and artists get into legal trouble.  For example, if an artist took an artistic work too far and people filed legal cases against them, this is perfectly legal if the claim is not frivolous.  The Court will determine a frivolous case and have it dismissed, when necessary.  Every case must be examined by the facts and the nature of the speech published, be it in writing, on any form of medium or orally (by word of mouth).  Every case must look at the platform of delivery, the person publishing the speech and, in some cases, who the speech was intended for or the intended message and audience.

As you may have guessed, there is a lot look at when it comes to Free Speech rights and Constitutional laws regarding freedom of speech.  Examples are only a snapshot.  I can only give you a general snapshot of this topic.  But remember, US First Amendment free speech is never a get-out-of-jail-free ticket that gives a person unconditional immunity from arrest, jail or a civil lawsuit.  The story of Ebony Dickens is a perfect example.  Posting threats to the cops on Facebook or anywhere, is one reason why quite often posting things on Facebook can land a person in court or worse, jail.

by Ginger B. Kelly, Esq., May 19, 2015

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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 finance and bankruptcy.  However, 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 http://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.

Gone to the Dogs in Massachusetts

Herbie, Acrilic Portrait by Artist Annie Salness http://www.anniesalness.com/herbie.html

Herbie, Acrilic Portrait by Artist Annie Salness http://www.anniesalness.com/herbie.html

Gone to the Dogs: Service Animal Law and Leash Law in Massachusetts

Sometime last year, in the small town of Oxford Massachusetts, a Veteran with a service dog entered a restaurant. The restaurant was very small and very local. The restaurant owner was also a local business man. The restaurant owner didn’t know the Veteran and visa versa. Neither did the restaurant owner know why the dog came into the restaurant with the Veteran, a very average looking man. The Veteran wasn’t blind.  He didn’t appear physically disabled.  The Veteran had no physical impairments, visible to most people.  Unfortunately, this is where the trouble started.

Apparently, the service dog was not appreciated inside the restaurant owners place of business.  People were eating there.  Food was prepared there.  The restaurant owner was so concerned, that he asked the Veteran to remove his dog.  The Veteran protested.  The Veteran tried to explain his situation and the circumstances.  The restaurant owner didn’t believe him.  Others chimed in. It all turned into one big mess. According to local news stories, the restaurant owner did not understand why the service dog was required by the Veteran or what the Veteran’s motivation for having the dog inside was.

Even so, this one simple transaction turned into a situation. It wasn’t pretty. The restaurant owner and the Veteran exchanged words. People were angry. The Veteran was asked to leave. Then, the police were called in. The Restaurant owner was upset, very upset. Patrons left the restaurant.

The next day, all the nasty details were reported in the local news paper. The news sparked even more interest. Dog owners, people with disabilities and Veterans from far and wide formed groups to protest the tiny restaurant in Oxford. Dogs dogs and more dogs, come with dog owners to voice their opinion. A few people sided with the restaurant owner. Even so, bad publicity is never a good thing. The restaurant owner lost customers. The bad publicity was not good for business and embarrassing to say the least.

In this instance, the service dog was used as not only a companion for the Vet but a tool to help him manage his disability, post traumatic stress disorder. The Veteran’s PSTD was a medical condition, directly related to his service. The restaurant owner never heard of this before. The restaurant owner made an incorrect assumption that the Veteran was not disabled.

Eventually, after a few very emotionally charged discussions, the restaurant owner apologized.  His apology was made public.  The public apology was a newsworthy story of success and communications, based on the efforts of the Veteran and the restaurant owner.  The Veteran accepted the apology.  They both shook hands. The Veteran and his service dog were welcomed back into the restaurant. The two became friends.

Eventually, life went back to normal in this sleepy little Massachusetts town in Southern Worcester County. People stopped protesting. Newspapers stopped reporting. Oxford returned to its regular state of normalcy.

This story sheds a little light into various legal reasons why someone would need to have a dog in a public place. It also sheds light as to a few things a dog owners must consider, before they bring their dogs into public places. Every town or jurisdiction in Massachusetts has important local rules or regulations pertaining to health, housing, service dogs and pets.

Other important laws regarding dogs or “service animals” can be found in the Americans with Disabilities Act (“ADA”) the Fair Housing Amendments Act (“FHAA”) and the Air Carrier Access Act (“ACAA”). It’s important to have a good understanding about these laws, especially if you are a dog owner and a business owner.

The Federal Code of Regulations (“CFR”) provides an understand of terms like, public accommodations and service animals. According to Title 28 CFR Section 36.302, business owners must make public accommodations to serve people with disabilities and those with limited capacity to access services. Subsection (c) talks about Service Animals. Service “animals” includes service dogs. The Veteran’s dog, who entered the Oxford restaurant with the Veteran, was a licensed service dog. Generally, people with disabilities have documentation that shows a dog is a service dog. If need be, service dog handlers should be able to present service dog identification to public business owners.

Generally, a public accommodation is the modification of policies, practices or procedures that allows people with disabilities to use their service animal on the premises. Under the CFR, a store or business owner should do whatever is reasonable to permit service animals onto their business premises so that the service animal can help the disabled person shop and conduct business as best they can. This is the right thing to do.

There are only a few exceptions as to why a business owner may exclude a service animal, under CFR law.  First, a service animal can be excluded if the service animal is out of control. If the animal’s handler does not take effective action to control the animal, the business owner may ask the service animal and the handler or owner, to remove the animal. In this situation, the business owner is not required to make a public accommodation for the service animal.

Next, if a service animal is not housebroken, for example a dog urinates or defecates in unacceptable areas, the store owner is not required to accommodate that service animal. This makes sense. Another exception is that a business or store owner is not required to accommodate the disabled person in caring for or supervising the service animal. In other words, the owner/handler is responsible for supervision of their own service animal if they want to take the service animal in public places.

Another key aspect of service animal law is that a service animal under must be on leash, harness, or other tether. If the handler is unable to put the animal on a leash or harness or tether, because it is not safe for the service animal, then the service animal must be under the handlers control by some other means. Again, in another sense, this means that if the owner/handler can not control the service animal, the animal may be excluded from the business premises. Examples of this sort of legal control are voice, hand signals or some other effective means of control. There is lots of guidance and case law on means of control.

For dog owners in general, it is important to note that federal law does not always trump local leash laws or ordinances. Many Massachusetts town ordinances and state laws regarding leash laws differ and are dependent upon each situation. This means that each fact pattern, or individual situation, can be different and may involve alternative duties, responsibilities and liabilities. If you are unsure about the leash laws and dog ordinances in your particular jurisdiction and situation, ask an attorney. Your attorney should be more than happy to research the laws for you and help you to understand how to obey your local laws in your area.  Taking to your attorney is a good way to become a more informed and responsible dog owner.

When I was growing up, I had the opportunity to watch service dogs being trained in the streets and on the sidewalks in Morristown, NJ. A school for service dogs for the blind was nearby.  Watching service dogs being trained was a beautiful sight. The dogs were harnessed and steady. They peered into the eyes of their handlers. The dogs were lively, yet always sat when asked and at the appropriate times.  The dogs walked quietly. They always stayed close to their handler. Unlike most dogs I’ve ever seen, these dogs didn’t randomly sniff at people and bark at things. The service dogs did not jump. There was no dog feces or urine in any public places. Never did these dogs intimidate or scare people or children. They didn’t even bark at other dogs.

Service dogs at work ignore all sources of stimulation, like other dogs, children and food. Service dogs are attentive, only to their handlers and the work they do in each moment.  Watching service dogs and their handlers is a treat.

I remember once walking up to a service dog, wanting to pet the dog.  I was about 10 years old at the time.  My mother told me, no.  I was a bit crushed, because I really love dogs, so I asked my mother why?  My mother explained to me that often handlers of service dogs ask visitors not to touch or pet the service dog. I understood and listened to my mother. I also wanted to encourage the dogs to be good. From that point on, I never touch a service dog unless I first get permission from the dog’s handler or owner.  I do this for all dogs now, hoping to help all dogs mind their manners.

Because I am an adult now, and an attorney, I understand most laws and policies of service dog handlers.  When service dogs are “at work,” they must be allowed to remain quiet and attentive to their handler. Petting the dog is a big distraction. This is important to know, for both dog owners and non dog owners.

The CFR discusses what to do when a store owner or business owner, for good reason, is unable to make a reasonable accommodation for the disabled person’s service animal. According to the Code, if a public accommodation properly excludes a service animal under 28 CFR Section 36.302(c)(2), the business shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises. This means that the store owner has a legal duty to assist and accommodate the disabled person, reasonably, even if store owner or handler must keep the service animal off the premises for whatever reason.

Appropriate, respectful and lawful exclusion or inclusion of dogs in and out of business is the right thing to do. This does not mean all dogs must be legally accommodated in all places. Each situation is different, under the law. It is not always appropriate, lawful or prudent to take your dog shopping in most public places. Massachusetts state and local health and housing regulations may prohibit pets, animals and dogs from many public places. Likewise, not all dogs can be excluded from public places and businesses, with only a few exceptions.

In Massachusetts, civil laws may impose strict liability onto dog owners for any and all harm to others or property, caused by the dog they own. This means that if a dog causes harm or damage to people or property in Massachusetts, the owner of the dog will be held liable for any damages. Dog owners also have a legal duty to prevent their dogs from harassing or frightening others. This includes not permitting your dog to frighten children with sensitivities and people with disabilities. It is also important for dog owners to know, property owners are not legally obligated to accommodate dogs, unless they are service animals.  Then, there are local leash laws.

The town of Charlton Massachusetts is the town my law office is located.  In Charlton, dogs are not permitted to be outside without a leash or a harness.  Dogs must be on a leash, even when the handler or owner is not the property owner. Property owners have a duty to keep all dogs visiting their property on leash, even when property owners don’t own any dogs. Property owners failing to keep all dogs on-leash, visiting or otherwise, may face legal consequences. Although it may seem different or strange, obeying leash laws in Charlton is the responsibility of property owners in Charlton. The same type of leash law ordinance applies to West Brookfield, Oxford and Dudley, Massachusetts and other cities and towns.

Leash laws are one reason why it’s a good idea for dog owners to talk to the host or property owner when visiting, before bringing dogs on the premises. Before allowing your dog off-leash in any area, communicate with host or check the policy of the property owner. Good dog owners not only genuinely care for their dogs, they care about people. Responsible dog owners learn what to do in each situation, before bringing their dog.

Personally, one of my favorite past-times is walking near the Buffamville Dam in Oxford. This is a good spot for me to get my doggie fix.  Almost always, someone is walking their dog.  I ask if I can pet most all dogs on leash.  This is fun, to me.  It’s also fun for families and children to play at the park and at skateboard parks in Charlton and Oxford. Wherever permitted, dogs are found on-leash.  Attending local football games or taking a child to the YMCA playground in Southbridge is an awesome experience.  Keep in mind, however, it’s not always wise or permissible to bring a dog.

If it isn’t permissible, reasonable, healthy or legal to take your dog to a public place, think twice. Summer is upon us. I’ts time to enjoy the outdoors.  Bring your dog to outdoor places only when it makes sense.  Show respect for others.  Showing respect is not only good for you, it’s best for your dog.

If you are a business owner or a pet owner, and you do not fully understand your legal rights, the health regulations, the story of the Oxford restaurant owner and the Veteran is a very good lesson. Local leash laws and dog ordinances, and laws about service dog accommodations are important to know. Please, talk to your attorney if you need help in any of these areas of the law. Being concerned about others is good for business. Knowing the law and our responsibilities under the law is our duty and a good way to gain trust and respect from others. Trusted and respected business owners in Massachusetts are such a great benefit.

If you are a pet owner or dog owner or have been harmed in some way because of an out-of-control animal or a dog, please call your attorney right away. Consider the statute of limitations law in your jurisdiction. Plan to contact your attorney before the time to take legal action runs out.

If you need an attorney, and need experienced and approachable help, feel free to call our office. We are here for you. All consultations are confidential. First consultations are free.

Enjoy your spring.  Enjoy your summer.  Enjoy your dog and the great outdoors!

About Artist Annie Saliness 

The artist who painted the featured illustration “Herbie” is Annie Saliness.  Annie is an Artist full of hope, grit and true artistic talent. During her career, Annie had a stroke which took away her ability to use her right hand and more.  Annies’ struggles, triumphs and victories over her disability and other things, is a wonderful story. Annies story is as beautiful as her art. To read more about Annie, her triumph over adversity and more, follow this link > http://www.oregonlive.com/north-of-26/index.ssf/2012/10/cedar_mill_artist_annie_salnes.html

More of Annie’s artwork can be found on Annie’s website at http://www.anniesalness.com.  Take a look at Annie’s art and things. You’ll be glad you did.

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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 finance and bankruptcy.  However, 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 http://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.