2017 - Page 2 of 2 - Wetherington Hamilton, P.A.

Fair Debt Collections Guidance

May 22, 2017/in Articles, Debt Collection/by Ted Hamilton

When the Fair Debt Collection Practice Act (FDCPA), 15 U.S.C 1601, was first enacted, it specifically exempted creditors attempting to collect their own consumer debts. With the enactment of the Consumer Financial Protection Bureau (CFPB), large financial consumer lenders have found that many of the protections afforded consumers by the FDCPA are being applied directly to the lenders, despite the exemption.

The CFPB has supervisory authority of financial institutions with assets over $10 billion and their affiliates and also over mortgage originators, mortgage servicers, payday lenders and private student lenders. Therefore, such large lenders who are involved with consumer loans (made for personal, family household purposes) need to be aware of the need to be in Fair Debt Collections Practice Act compliance.

Some matters to consider to avoid non-compliance include:

Accurately stating the amount of the debt.
Communicate only with the consumer about the debt, with certain exceptions.
Do not communicate at unusual times (usually before 8 a.m. or after 9 p.m. in the consumers time zone).
Cease communication if the consumer advises they are represented by an attorney.
Cease communication at the consumer’s employer if advised to do so.
Do not harass or abuse the consumer.
Do not make false, deceptive or misleading statements.
Do not use unfair practices to collect a debt.
Do not attempt to collect a debt past the statute of limitations.

While this is a partial list, if you feel that the FDCPA or CFPB may apply to your debt collection efforts, you need to be well trained it these legal requirements. The FDCPA spells out in much detail what are prohibited practices, but you might be quite surprised to learn what the courts have found to be an “unfair”, “harassment” or “misleading”. Contact our experienced collections attorneys today to schedule a consultation at (813) 676-9082 or Info@whhlaw.com.

Thomas K. Sciarrino, Jr., Esq.

When is Someone Entitled to Florida’s Head of Household Exemption?

May 15, 2017/in Articles, Debt Collection/by Ted Hamilton

Once a creditor obtains judgment against a debtor and collection efforts begin, there are several options for collection. One of the most effective options for collection of a judgment can be garnishment of wages or bank accounts. Garnishment statutes require strict compliance; all “I”s must be dotted and all “T”s must be crossed.

While there are several exemptions, head of household is a common exemption claimed by debtors. So how does one qualify as head of household and why is this important?

Florida statute section 222.11(c ) defines “head of family” to include “…any natural person who is providing more than one-half of the support for a child or other dependent.” When a judgment debtor claims head of household or head of family, if that person does not qualify for the exemption, then his or her disposable earnings may be subject to garnishment. However, if it is determined that the person claiming the exemption is actually head of household, then his or her wages would not be subject to garnishment.

Let’s break down the definition of head of household a bit. If a single person is supporting only himself or herself, he or she would not qualify for the exemption as there is no child or other dependent involved. Sometimes the question of whether or not an individual is head of household is clear. For example, a single parent, receiving no child support or assistance from the other parent, might easily qualify for the head of household exemption. On the other hand, a single parent with shared custody of two children, may or may not qualify as head of household, depending on the specific facts of the case. Or what if a debtor is caring for and supporting a special needs or elderly adult? These questions can become more involved. The attorneys at Wetherington Hamilton, P.A. are experienced in handling this type of debt collection and related matters. Call us today at (813) 676-9082 to schedule your consultation.

Joan Wadler, Esq.

Big Bankruptcy Rule and Form Changes Coming: Be Warned and Be Ready!

May 8, 2017/in Articles, Bankruptcy/by Ted Hamilton

Just about every year changes are made to the rules and forms having to do with bankruptcy cases. This year there are extensive changes proposed in regards to the rules and forms having to do with the filing of claims and in regards to Chapter 13 cases generally.

The proposed changes will take effect on December 1, 2017 provided that Congress and the Supreme Court approve (such approval is likely). These Rules and Form changes will significantly change how Creditors should approach bankruptcy cases and implements significantly shortened timelines for Creditors to take action, especially in Chapter 13 cases.

The major changes to the Rules and Forms are as follows:

Rule 2002. Notice to Creditors.

The changes to this Rule specify that at Creditors are to be provided at least 21 days’ notice of the time fixed for filing an objection to confirmation of a Chapter 13 plan and be provided at least 28 days’ notice of the confirmation hearing in a Chapter 13 case.

Rule 3002. Filing of Proof of Claim.

The modifications to this Rule require all creditors—including secured creditors—to file proofs of claim within 70 days of the filing date of a Chapter 7, 12 or 13 case or within 70 days of the date of conversion of a case to Chapter 12 or Chapter 13. There is a provision in this Rule that permits a creditor an extension of time of up to 60 days to file a proof of claim upon motion and order if the creditor did not have a reasonable time to file a proof of claim because the debtor failed to timely file the list of creditors and addresses or if the creditor did not have a reasonable time to file a proof of claim because the notice was mailed to the creditor at a foreign address.

This Rule adds a two-stage deadline for filing proofs of claim pertaining to security interest (mortgage or other lien) on property that is the principal residence of the debtor. These proofs of claim must be filed with the appropriate form account history attachment and escrow account statement within 70 days of the filing date (or conversion date). In addition, in order to be timely, all other loan documents evidencing the claim—such as the promissory note, mortgage—must be filed as supplement to the proof of claim within 120 days of the filing date (or conversion date). For such a claim to be timely, both of these deadlines must be met.

This 70/120 day time period is significantly shortened compared to the current rules which permits a claim to be timely if it is filed within 90 days after the Section 341 Meeting of Creditors date which, in practice, permits claims to be filed within an approximately 120 to 140 day time period from the filing date or conversion date.

Rule 3007. Objections to Claims.

The proposed modifications require at least 30 days’ notice to affected creditors of an objection to claim. Notice can be provided by “negative notice” which requires the affected creditor to oppose the objection and request a hearing within such 30 day period. This Rule also sets forth how service of the objection and notice is to occur—for most cases the service will be by first class mail; however, if the claim was filed by an insured depository institution as defined in the Rules then such service shall be by certified mail.

Rule 3012. Determining the Amount of Secured Claims.

The changes to the Rule provide for the process for determining the amount of a secured claim, i.e. “valuation” of a secured claim. A debtor can request such determination by a provision in a Chapter 13 Plan, by motion or by objection to claim. The proposed changes specifically provide that the debtor’s proposed valuation can seek to avoid a lien in its entirety—i.e. a “lien strip”—resulting in the affected creditor only holding an unsecured claim. Permitting a debtor to seek valuation through a Plan is a significant change to the present practice in all of the Florida Districts and will require creditors to objection to confirmation of Chapter 12 and Chapter 13 Plans or else be bound by the Plan terms upon confirmation (see proposed changes to Rule 3015 below).

Rules 3015. Filing of Plan, Effect of Confirmation of Plan.

This Rule requires use of the Official Form of Chapter 13 Plan unless a Local Form has been adopted. The Middle District of Florida has adopted a Local Form Plan; however, as of the date of this writing, neither the Northern District nor Southern Districts of Florida have adopted such a Local Form Plan though it is likely that both of these Districts will do so prior to the effective date of the Rule changes.

The modifications to this Rule further provide that a nonstandard provision in the Official Form or Local Form is effective only if it is included in the section of the Form designated for nonstandard provisions. In addition, the proposed changes require an objection to confirmation of a plan to be filed and served at least 7 days before the confirmation hearing date.

The proposed changes to this Rule also provide that the determination (i.e. “valuation”) of a secured claim in a Plan is effective upon confirmation and binding on the secured creditor notwithstanding whether the creditor filed a contrary proof of claim, notwithstanding how the debtor scheduled the claim, and regardless of whether the debtor has filed objection to claim.

Rule 3015.1. Requirements for Local Form for Chapter 13 Plans.

This Rule sets out features required for all Local Forms for Chapter 13 Plans, including requirements as to consistency, formatting and content. If a Local Form does not comply with this rule then it cannot be used.

Rule 4003. Exemptions.

The change to this Rule is a new provision which permits a Chapter 12 or Chapter 13 debtor to seek avoidance of a lien impairing exemptions by motion or by Plan provision and specifies how such a Plan must be served.

Rule 5009. Closing Chapter 13 Cases; Order Declaring Lien Satisfied.

The proposed Rule modification is the addition of a procedure for a debtor in a Chapter 12 or Chapter 13 case to request an order declaring a secured claim satisfied and lien released under the terms of a confirmed Plan. Provides that such request is to be made by motion and served on the claimant as required by Rule 7004.

This blog is meant to be an overview of the major changes that are coming. It is not a complete list. As with anything having to do with bankruptcy, there are many exceptions to the general rules. As always, please make sure to reach out to your bankruptcy attorney in regards to how best to proceed in a specific case at (813) 676-9082 or email BradH@whhlaw.com.

The changes (again, assuming the likely approval by Congress and the Supreme Court) will take effect on December 1, 2017 and will apply to all bankruptcy cases commenced after that date and all pending cases “insofar as just and practicable.” What this means is that they will govern virtually all bankruptcy cases, including those filed prior to December 1, 2017, so be ready to apply them right away!

Brad Hissing, Esq.

Giving Back to Our Community and Our Own

April 7, 2017/in Articles/by Ted Hamilton

One of my personal core values has always been to give back to the community in whatever way I can. I am proud to say that the law firm of Wetherington Hamilton, P.A. has the same core value. Whether it be volunteering time for Meals on Wheels, volunteering at The Children’s Home, raising funds for The Children’s Home at our Cocktails for a Cause event, or raising funds for the American Cancer Society’s fight against breast cancer, Wetherington Hamilton definitely gives back!

Last summer I was diagnosed with stage 2, triple negative breast cancer. This is an aggressive form of breast cancer that requires major chemotherapy, surgery, and in my case, radiation as well. I could not have asked for more support from my employer and co-workers at Wetherington Hamilton. As a result of my diagnosis, our Estate Planning Attorney Elaine McGinnis, spearheaded our firm participation in the American Cancer Society’s Making Strides Against Breast Cancer walk in Tampa last October. Our firm team had over 60 members who walked that day, including my 88 year old father, who participated in his first 5K! More importantly, our team raised over $2,500.00 towards the fight against breast cancer. This has become quite personal to me, as you might imagine.

I am happy to report that my pathology report reflected pathologic complete remission, meaning that the cancer is totally gone! I am about to begin radiation and could not be more pleased to have returned to work full-time! I want to thank all of those in our community who participated in and contributed to the Making Strides Against Breast Cancer walk. I also want to thank everyone at Wetherington Hamilton for your continued support, not only of me, but your support for each and every community organization that our firm supports. Wetherington Hamilton, P.A. walks the walk and truly does give back!

Joan W. Wadler, Esq.

What is a Fraudulent Transfer?

March 6, 2017/in Articles, Debt Collection/by Ted Hamilton

Several years ago while looking for assets owned by a judgment debtor I discovered that he had recently transferred title to his Corvette to his daughter. It is unusual to find such an obvious example of a fraudulent transfer, but it was not difficult to recover the vehicle and apply it to the amount owed to my client.

Traditionally, a transfer of an asset is considered fraudulent if it is made to an “insider”, such as family member; for less than fair value; when the debtor had been sued or was threatened to be sued.

The law has also established other indicators that a transfer is fraudulent. These are known as “badges of fraud”. Some examples are: the debtor maintained possession or control of the asset; the transfer was concealed; or the transfer was of all of the debtor’s assets. Another example would be that a lien is created on property of the debtor, simply to keep it from being seized.

For corporate debts an officer who is in charge of a business may be held personally responsible if he pays himself before providing for payment to creditors. The officer is considered to hold property of the corporation “in trust” for payment to creditors of the corporation. If he pays himself and the corporation becomes insolvent, a creditor may try and recover against the officer personally. You often see it where it is clear that a business is about to go under and a person in charge of the business starts draining the assets, leaving the creditors out to dry.

Thomas K. Sciarrino Jr., Esq.

Servicemembers Civil Relief Act (SCRA) – Protections and Ramifications

February 20, 2017/in Articles, Debt Collection/by Ted Hamilton

The Servicemembers Civil Relief Act (SCRA), formally known as the Soldiers’ and Sailors’ Civil Relief Act, is a federal law affording certain protections to military members in civil actions under 50 U.S.C., and it’s extremely important to consider the protections this law provides and the ramifications it may have on civil actions and proceedings.

This federal law applies to members of the uniformed services such as the Army, Navy, Air Force, Marine Corps, or Coast Guard. The purpose of the Act is to provide certain protections to military members who have obligations that are affected by their active military service. The protections provided under the law may affect a number of actions such as entry of default judgments, mortgage obligations, eviction processes, collections practices, and other debts or obligations that were entered into by a military member.

The protections cover individuals during their time in service and for a period of time after completing service. As such, it is crucial to determine the military status of a defendant before proceeding with a civil action that may be covered under SCRA. In bringing forth an action, the Plaintiff must verify whether the defendant is on active military duty and provide the court with an affidavit setting forth the defendant’s military status or stating that military status is unable to be determined. The affidavit must be filed before the court can enter a default judgment and in some instances, a court appointed guardian must represent the interests of the defendant in order to proceed with the action unless the defendant waives their rights under the act in writing.

A service member may request a stay of the legal proceedings if the member’s current military duty requirements materially affect the member’s ability to appear and if military leave is not authorized by a commanding officer. In debt collection practices, a court order staying the action could prevent the entry of a judgment or the attachment of a garnishment. In a foreclosure action, the lender must get a court order to foreclose on a service member if the action is brought during the debtor’s active military service. Service members may also be afforded protections during an eviction process or if they are terminating an apartment or vehicle lease, however most of these protections apply to those debts or obligations that were entered into prior to active military service.

The Servicemembers Civil Relief Act can pose a number of issues and restrictions on civil proceedings, therefore it is important to be familiar with the Act and to be in compliance with all of the applicable requirements.

Ashley Simon, Esq.

Who’s in Charge Here Anyway? Qualities of Leadership

February 13, 2017/in Articles, General/by Ted Hamilton

Are you a leader? How would you know?

Leadership is from the front of the room or the front of the line. And, leadership is from the rear, and from side-by-side interaction. Being a leader doesn’t necessarily mean you make all the plans, and assign all the roles, and set all the goals. Sometimes you are in charge, sometimes you have to take charge, and sometimes you have to empower others to charge. Leaders listen to what is said, and also hear what is not being said, to understand the actual dialogue and because it affects the process and the outcome.

Team: A team is not a group of people who work together. It is a group of people who trust each other.

Vision: Without a picture of where you are going, you will never get there. Part of leadership is sharing the vision and enrolling the team in that vision, then working with the team to refine and direct that vision. A leader is flexible, soliciting and accepting input from the rest of the group and crafting the vision to incorporate that input. A leader will partner with the group and all work together. Ultimately, soliciting input and allowing the group to contribute to the conversation results in a higher percentage of participation in the result, even if the result is not exactly what some individuals were hoping for. A leader communicates the vision to everyone else.

If the team is not actively engaged in the planning and realization of the vision, the end result is likely to be unsatisfactory, and will not be supported by the group as a whole.

Motivating Yourself and Others:

Lead by example. Assist and participate. If the team sees you are willing to pitch in and work with them, they are more likely to follow the plan. Do your homework. Anticipate questions or concerns and prepare your answers ahead of time.

Lead by expectation. Always expect people to do their best and be successful, and then if you create a culture in which your response to indifference or failure is disappointment, it can be more powerful than criticism or censure.

If someone takes credit for the success of your idea, remember it is better to be effective than to be right. A good idea is worth carrying out, and part of leadership is understanding that getting the job done is more important than who gets the credit for the idea.

Attitude is everything. Enthusiasm, positive energy and passion are contagious. So are doubt, negativity, and the conviction that it won’t work out. Choose positive. It will empower you and the others, and it creates strength (physical and mental). Also, it leads to out of the box thinking and new solutions.

Mentor and monitor. Stay involved during the process. Be accountable for the on-going work, and for the results. And, make others accountable for their parts, including if they are not doing their parts.

Empower others. Always work to give them the tools and the information they need to be successful. Solicit their input, create consensus when you can.

Celebrate everything and everyone. After the project is finished, revisit the process and review what worked, and what was changed and improved as it went along.

Focus on your strengths and the strengths of the others. A leader will balance the team so that each member brings a strength to bolster an area of weakness in another team member. Look for and recognize the strengths of the group, and you will have a much stronger team. When you have a grasp of the strengths of the individuals, you can encourage meaningful participation by all members of the team, and make the best use of your resources. Everyone has something to contribute.

Now when I ask you again “Are you a leader?” what will you say?

Ellen Hirsch de Haan, Esq.

Debt Collection and Judgment Collection – Hiring an Experienced Attorney Counts

January 30, 2017/in Articles, Debt Collection/by Ted Hamilton

After having practiced law for over 25 years, you would think I would have seen everything. Yet, every day presents a new type of matter with slightly different facts from the others that have come across my desk. From the debtor who paid his $850 dollar debt with a box of quarters, to the interesting friend who paid the debt of his other friend after having been served at the nudist resort, each case is interesting in its own way. Each matter teaches us something new: A new way to deal with litigation, a new way that an individual or entity can try to hide assets, a new way to collect on a judgment. This experience helps us collect a judgment or collect a debt where other attorneys might find the judgment uncollectable.

Our experience lends itself to Judgment enforcement and debt collection when all seems lost. For example, one of our clients sold his business to someone who failed to pay the remaining amount due on a note for the sale of the business. After lengthy litigation in another state, a judgment entered in the case for over $200,000.00. The attorney in the other state called us to assist in collection of the judgment. The debtor had moved to Florida. (This often happens due to Florida’s unlimited homestead exemption). We immediately filed paperwork to localize the foreign judgment in Florida. (This made the Foreign Judgment a valid Florida Judgment). After taking the deposition of the debtor, we found that the debtor had supported his wife and paid his son extensive amounts over the years prior to entry of the judgment. All of his money had gone into his wife’s account or into a joint account. At this point, we sued the wife and son on a fraudulent transfer theory. After setting the wife and son for deposition and moving for a trial, we settled the case for a substantial amount.

Example after example exists where our experience has proven extremely valuable in judgment collection and judgment enforcement. Our firm handles debt collection, Judgment collection and other commercial litigation on a contingency or hourly basis depending on what works best for the client. If you have a debt that is due to you or a judgment that has gone uncollected, let us know. We can help! Please call Ted Hamilton, Kalei Blair or Thomas Sciarrino in our office or email info@whhlaw.com for more information.

Theodore J. Hamilton, Esq.

The Case of the Secret Lover – Buying Jewelry and Bad Credit

January 9, 2017/in Articles, Debt Collection/by Ted Hamilton

Many years ago I represented a local jewelry store. I sued a customer who owed them a substantial debt for jewelry purchases on credit. I sued the customer and obtained a judgment. I was unable to get the customer to respond but soon discovered he owned a new Lincoln Continental free and clear. I levied on the vehicle for my client and the sheriff took it from him. Shortly afterward I received a call from the customer’s son wondering why the jewelry store was taking his father’s car. I explained that he purchased jewelry on an application for credit. A short time later the son called me back and told me his father had a girlfriend on the side for many years and the jewelry was purchased for her. The father did not want anyone to know about this for obvious reasons and he used his girlfriend’s address on his credit application. Service of the lawsuit was made on him at the girlfriend’s address. In the state I was in at the time, a lawsuit could be served by regular mail, provided the mail was not returned by the post office. Apparently, by the time I filed suit the relationship with the girlfriend had gone sour and she accepted the mail but did not tell him about it. The family hired a lawyer who attempted to quash the service but the court ruled the service was good according to the state’s law.

The car was purchased with retirement benefits. His sons told me they could help him out to pay off the debt to my client, but they refused because he was “already in enough trouble”. The car was eventually sold by the sheriff with the proceeds going to pay my client’s debt. The father told me he “really loved that car”. So he not only lost his retirement benefits and the car he loved but he was now also in big trouble with his wife and family. I will let the reader think of the morale to this story as they are too numerous to list.

Thomas K. Sciarrino Jr., Esq.