Follow up on powers of attorney and home healthcare workers
0 commentsThe original article made the following points about the employment law issues:
The case has important implications for anyone arranging domiciliary care. Consideration should be given to making it a condition of employment that the employee does not discuss legal or financial matters with the person being cared for. If possible, this could be made a term of a written contract. If there is firm evidence that the term is being breached, the contract can be terminated.I do not know enough about home health care contracts to know if they do include these kind of terms. I do know that temporary agencies have contracts that address these issues with employers. I would not be surprised that in-home medical care providers do not have contracts with similar provisions.
For those receiving in- home care - check the contract carefully about your responsibilities of mixing the care provider with the client's business affairs.
For those companies providing in-home care: 1) check on your employees' background and 2) get your contracts lined up. No, one cannot contract away one's negligence but that is not quite the need or purpose for lining up the contracts.
Proposed alcoholic beverage regulations
0 commentsThe Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to amend its regulations to require a statement of alcohol content, expressed as a percentage of alcohol by volume, on all alcohol beverage productsFor more information click here.
A personal finance blog
0 commentsOne remnant from my defunct bankruptcy practice is my belief that we can all stand educating about personal finance. This place looks like a good start.
Mortgages - foreclosures, fraud but now Atlanta, GA
0 commentsTo me, this description sounds like Indiana:Rajeev Dhawan, an economics professor at Georgia State University, has started studying the characteristics of loans on homes that are in foreclosure. His preliminary analysis of data from April shows that nearly half were for adjustable rate mortgages and many were issued in the last two years.
“Everybody thought if the home prices kept going up, the lenders will keep refinancing you,” he said.
In recent years, industry groups and law enforcement agencies have also cited Atlanta for being home to some aggressive mortgage fraud schemes. It may have been an easier target because the prices of homes in the same neighborhood can vary greatly here, making it easier to inflate appraisals.
“We are a very affordable place,” said Mike Alexander, the chief of research at the Atlanta Regional Commission, an organization that serves local governments. “But our incomes are very low, and if anything went wrong, it would be very hard for people to maintain their homes.”
Mortgages - foreclosures, fraud, and also Madison County
0 commentsThe first article has the headline Facing foreclosure in Madison County.
As companies started investing more and more money into businesses that offer subprime home loans, more and more people started getting loans they could not afford to pay back. Now these people are stuck deciding if they should pay for the mortgage or pay for food.The Herald-Bulletin had the good sense to interview Larry Robbins for the article. While one anecdote does not make a trend, it does call for asking more questions about 2005's bankruptcy reform.
In 2006, the Madison County Sheriff’s Civil Department sold 1,082 homes through sheriff sales. This year will be similar to last year....
Larry Robbins, an Anderson bankruptcy lawyer, said he thought that the mortgage foreclosures have led to some bankruptcies, but there are fewer people filing for bankruptcy because of the law that passed in 2005 that made penalties for bankruptcy stronger.The headline for the second article is Subprime time: Falling housing market exposes problems. That article quotes our local Chapter 7 bankruptcy trustee:
Randall Woodruff, bankruptcy trustee for Madison County, serves on a panel of bankruptcy trustees for the southern district of Indiana. He said subprime lending has been a main culprit in the massive foreclosure rate sweeping Anderson and other Central Indiana communities.
“If you are in foreclosure, there aren’t many ways to get out of that problem other than to file for bankruptcy,” said Woodruff, who sees every bankruptcy filed in Madison County. “Whether it’s subprime lending, my gut instinct is that it certainly is one of the problems. The fact that we have so many folks buying homes that they really can’t afford and obtaining mortgages that are going to adjust is clearly one of the main causes of bankruptcies.”
I can only criticize the series for not explaining the difference between a Chapter 7 bankruptcy and a Chapter 13 bankruptcy. An absurdly simplistic explanation is that a Chapter 7 debtor has an insufficient income to fund a plan while a Chapter 13 debtor does have sufficient income.
For those wanting to keep track of these issues, I suggest bookmarking or adding to your RSS feeds The Mortgage Fraud blog.
Collections - calculating exempt wages
0 commentsChanges for loan brokers
0 comments>> Requirement for the creation of a principal manager who will oversee the loan brokers at each firm. The principal manager, who must have at least three years of experience in the financial services industry, will be hired privately by each firm.>> Requirement for criminal background checks on loan broker employees, owners and principal managers.>> Requirement for written examinations for employees and principal managers. Currently registered employees must the test upon license renewal.>> Increased flexibility for the Indiana Securities Commissioner to revoke, deny or suspend a loan broker license for reasons including violations of loan broker-related laws in the past 10 years under the Commissioner's jurisdiction. In addition, knowingly filing false statements is now a Class C felony.>> Requirements for certain exempt entities to file notices with the Securities Division every two years.
Internet Privacy Concerns - Individuals and Businesses
0 commentsThe Washington Post article, Teen Tests Internet's Lewd Track Record, from May 29 shows the problems of information getting onto the Internet and how it reproduces itself.
Today's Sunday Herald has an article that echoes and amplifies the Washington Post article.
We think the real problem is some stalker or identity thief, but that may not be so. Self destruction may be more of a danger:Citing a litany of cases where people have found themselves surprised by the implications of what seemed like a harmless web posting, leading academic Dr Yaman Akdeniz has called for a massive public education programme aimed at combating what is set to become a key social issue.
"It may seem like harmless fun, but the social networking revolution is already becoming a major issue in real life. People are losing their jobs, relationships and in some extreme cases even their lives as a direct result of exposing so much of themselves to the world.
"They are leaving themselves wide-open to commercial, personal and physical harm without any apparent understanding of the potential results," said Akdeniz, founder of the watchdog organisation Cyber-Rights & Cyber-Liberties UK.
"People must learn that once information has been released in digital format, it is impossible to get it back. We are living steadily more transparent lives, and the consequences of that could prove to be extremely dangerous."
Increasingly, the 21st-century citizen is defined by data. The conglomeration of personal records, certificates, applications and financial transactions that form the flurry of information following everyone about like a small cloud is the basis on which commercial and administrative judgements are made.
Yes, that does sound a bit too much like 1984 and Big Brother, but one major difference lies between Orwell's nightmare and our world: we put this stuff out there to be found rather than Big Brother having to dig up the dirt.In the US, companies are already springing up that promise to check out job applicants' digital reputations on other firms' behalf. In addition to combing blog space, YouTube and an array of online forums for evidence, they also promise to track down potential recruits' Amazon reading lists in an effort to unearth any unwelcome political views.
"Practically the first thing everybody does when meeting someone new is to Google them. It's a great way of picking up extra information on a contact, but people don't seem to realise this when they're logging on to services like MySpace and Facebook, so they put everything online from their job title to their favourite sexual position," said Peter Cunningham, Viadeo's UK head of operations.
"A well-managed NetRep can work in your favour but nobody in business wants to take unnecessary risks, so if there's anything questionable about you online it will almost certainly have an impact upon your career prospects.
What does this have to do with businesses? The Sunday Herald doe smake the securityh threat point.
Substitute business for individual in the above articles and I think you will see other places where the Internet can affect businesses. Think about it.The wealth of digital information growing on the back of the web 2.0 boom has given rise to a new form of crime known as social engineering, where hackers manipulate online relationships in order to get access to valuable data about themselves or their place of work."It's a type of attack that is becoming ever more sophisticated: the hacker can now gain substantial information on your employees remotely because more and more data is held in the public domain. Take, for example, social networking sites such as Linked In, Ecademy and Ryze or jobs websites which house curriculum vitaes.
"Both provide ample opportunity for the hacker to use our credentials to impersonate us or to launch an attack on our employers," says Ken Munro of SecureTest, the company responsible for vetting the security of installations such as GCHQ.
Indiana's Lemon Law
0 commentsIndiana's Lemon Law, How Does It Compare? (Part 3). He starts his post with:
So far in this series, we have determined that the Indiana Motor Vehicle Protection Act, Indiana's lemon law, is the least consumer friendly of our neighboring states' lemon laws with regard to: the deduction the manufacturer receives for the mileage on a vehicle in a buyback situation (Part 1) and the kind of vehicles to which the law applies (Part 2)....He concludes that Indiana's lemon law surpasses our neighbors:
This time, it appears that Indiana's lemon law is the MOST favorable to consumers of all our neighboring states. The bottom line is that Indiana's lemon law protects new car purchasers longer than the other states' lemon laws.My opinion remains that Indiana's lemon law protects the consumers a little and the makers even more. I wonder, though, if the Lemon Law has not been somewhat superseded by the market. I remember the Eighties as a time when GM was particularly hapless with its models. Since then Toyota and other auto makers have beat GM over the head about their reliability. I searched quick for statistics by auto maker for Lemon Law violations on Yahoo and Google but turned up nothing. I could find nothing on the Consumer Rights Blog, either. Answering this question might actually answer the bigger question of why Indiana's legislature cannot be bothered to give us a better Lemon Law statute.
Debt relief scams
0 commentsDon’t let your guard down. No one - literally, no one - has any kind of special “in” with your creditors. If you’ve tried to renegotiate your terms (and you should), and were unsuccessful, then move on to consider other alternatives. Credit counseling - real credit counseling, with an appropriate and well-respected nonprofit organization (and here’s a hint: not all nonprofits are well-respected) - might be one answer. Filing for bankruptcy might be another. If you think you’re there, speak with a lawyer today.
Music Download News - New Tactic from Recording Industry
0 comments"Now, in an unusual case in which an Arizona recipient of an RIAA letter has fought back in court rather than write a check to avoid hefty legal fees, the industry is taking its argument against music sharing one step further: In legal documents in its federal case against Jeffrey Howell, a Scottsdale, Ariz., man who kept a collection of about 2,000 music recordings on his personal computer, the industry maintains that it is illegal for someone who has legally purchased a CD to transfer that music into his computer."I read about the RIAA's theory elsewhere. Distilled to a bare minimum, I do not own my music CD but only use it under a license from the record company.
The industry's lawyer in the case, Ira Schwartz, argues in a brief filed earlier this month that the MP3 files Howell made on his computer from legally bought CDs are "unauthorized copies" of copyrighted recordings.
"I couldn't believe it when I read that," says Ray Beckerman, a New York lawyer who represents six clients who have been sued by the RIAA. "The basic principle in the law is that you have to distribute actual physical copies to be guilty of violating copyright. But recently, the industry has been going around saying that even a personal copy on your computer is a violation."
Yeah, a lot of people can believe this argument - lawyers and laypersons alike.
I cannot but heartily agree with this:
The RIAA's legal crusade against its customers is a classic example of an old media company clinging to a business model that has collapsed. Four years of a failed strategy has only "created a whole market of people who specifically look to buy independent goods so as not to deal with the big record companies," Beckerman says. "Every problem they're trying to solve is worse now than when they started."
Mortgage foreclosures in Madison County
0 commentsCLERK of the MADISON CIRCUIT COURTTake this as a sign of our local economy. What impresses me with this change in procedure is that we have had large numbers of foreclosures in this county for most of the past twenty years. I read this to mean that we are having even more foreclosures than we have had. Not good, folks, not good at all.
April 20, 2007
Ludy Watkins, Madison County Clerk
Re: Mortgage Foreclosures
To Whom It May Concern:
Do to our Local Rules and the large number of Mortgage Foreclosures we are going to change our way of filing Foreclosures. After May 1, 2007 you will no longer be able to specify the court in which you want to file in. We will be doing the Mortgage Foreclosures on a rotation system. Superior I, Superior III, and Circuit courts will be included in the rotation. All other filings will remain the same.
How this ties into the subprime lending (see my post here on that subject) I have no good answer but some guesses. Subprime mortages target those borrowers whose income and credit history make them a risky bet. That could describe quite a few residents of Madison County. So, there may be a connection.
Mechanic's Liens and Permits: A New Court of Appeals Case
0 commentsOn November 25, 2003, Shamo went to the Building Commission office and obtained an Improvement Location Permit for the addition of a bathroom and a porch to Webster’s residence. Shamo completed a “Homeowner Affidavit” stating that “Wendel [sic] Webster” thereby swore that “either [he] or a member of [his] immediate family” would “perform the . . . work” of adding the room and porch at his residence, “for which Building Permit #106771E” was being issued, and that he would not be “subcontracting out any of the work” thereon. (Ex. A). Shamo signed Webster’s name on the affidavit....Contractor filed suit to foreclose the lien. Contractor lost at the trial court level and appealed. The Indiana Court of Appeals noted that foreclosure is an equitable action and listed several equity maxims: One who seeks equity must do equity, One who comes into equity must come with clean hands, and equity follows the law ( see page 7 of the opinion).
But losing the foreclosure was not all that the contractor lost - the contractor also lost on the breach of contract claim. The Court of Appeals sank the breach of contract claim in this paragraph:
Next, Hopper argues that it “was entitled to recover on breach of contract,” citing “unrefuted evidence” that it “was owed and ha[d] incurred damages” in the amount of $7,500.00 “as a result of Webster breaching the parties’ contract by running Hopper off the job and refusing to pay.” Hopper’s Br. at 29, 30. The evidence was that Webster refused to allow further work by Webster after the inspector found that the work failed to comply with Code. The Homeowner Affidavit expressly provides that “if the Inspector should find the work in the violation of the Code, then [the homeowner] shall employ a master installer of the required trade or craft to change, alter, or repair the work that is in violation.” (Ex. A). Hopper offered no evidence to establish that it held such credentials...Absent a showing that Hopper held credentials to perform the corrective work required by the Homeowner Affidavit, the circumstances here did not require that Webster allow Hopper workers to perform further work. Therefore, Hopper’s breach of contract claims must fail.Reading the case, I was surprised that the homeowner did not file a counterclaim based on Indiana's home improvement fraud statute. The homeowner filed a counterclaim and asserted an affirmative defense of fraud, but the counterclaim was struck by the trial court. The Home improvement statute says the following about permits:
IC 24-5-11-9Considering how the contractor obtained the permit in this case and the type of permit, I think the contractor got lucky in escaping a home improvement fraud suit.
License or permit as prerequisite
Sec. 9. Where a license or permit is necessary for any part of a home improvement, the home improvement contract shall be subject to obtaining the necessary licenses or permits prior to any work commencing.
Reading about: mortgage crisis news, the problems of e-mail,
0 commentsLooks like some lenders are stepping up to the plate and dealing with the subprime mortgage mess.
Freddie Mac, the government-sponsored company that is the second-largest buyer and guarantor of home loans in the country, announced Wednesday that it will buy as much as $20 billion in fixed-rate and adjustable-rate mortgages to help borrowers with high-priced loans keep their homes. The new mortgages, expected to be available by midsummer, will include loans with longer fixed-rate terms.
Fannie Mae, the No. 1 mortgage financer, also is offering new options so that lenders can help subprime borrowers refinance out of high-interest adjustable-rate mortgages or other difficult loans.
And Washington Mutual Inc., one of the country's largest financial institutions, said it will refinance up to $2 billion in subprime mortgages to help borrowers avoid default and foreclosure, allowing them to apply for discounted fixed-rate home loans or other refinancing alternatives. Subprime loans comprise only about 6 percent of Seattle-based Washington Mutual's mortgage holdings, but they dealt a heavy blow to its first-quarter earnings, which slid 20 percent.
If you or someone you know has one of these subprime mortgages, I strongly suggest checking out these offers. The AP article obtusely headlined Lending giant moves indicate cooperation,can be found at this link.
I get this e-mail newsletter from Lumen Legal. Sometimes they have good articles and sometimes the articles are just okay. Ignorance about e-Discovery No Longer an Excuse falls under the latter category. Nothing in the article explains its conclusion: "[f]ailing to show litigators and regulators how you have tried to preserve data can be as dangerous as not knowing where it is at all...."
I am still pondering why I want to find a Federal Employer Identification Number, but this very short article, Find a Federal Employer Identification Number informs me that there are services out there for finding this information. The article also has three screenshots.
Well, that is all for today.
A Fair Credit Reporting Act FAQ
0 commentsFallout from The Subprime Mortgage Crisis
0 commentsFrom The New York Time comes this story out of Florida: 31 Accused in Florida of Falsifying Home Loans:
"Officials said the scheme included participants at every stage of the transactions, including bank employees, title agents, appraisers and fake buyers, and involved property in Miami-Dade and Broward Counties and in the city of Marco Island on the state’s southwest coast."
According to the indictment, Juan Torrens, 40, a defendant and the owner of two real estate investment companies, would identify property owners who were willing to overstate the selling price of their properties.
Mr. Torrens and another defendant, Daniel Ramos, 40, would recruit people to pose as buyers, the indictment said. Mr. Torrens and his wife, Rachael, would then prepare fraudulent mortgage loan applications on behalf of the straw buyers, including false pay stubs and tax forms, according to the indictment.
Meanwhile, to support the inflated sales prices, Alonso A. Muxo, 48, an appraiser, would prepare fraudulent appraisals, the indictment said.
In at least one case, the indictment says, Roger Rosario, an employee of Regions Bank, provided a fraudulent verification of deposit in connection with a mortgage loan application.
The defendants would skim off the difference between the sale price and the mortgage loan and pay off all the participants in the scheme, officials said.
Lawyers.com published Economy's Frowns Turned Upside Down for Boutiques:
"Coming off a four- or five-year dry spell, small bankruptcy boutiques like McNutt's are watching the ripple effect of the subprime mortgage meltdown and the ensuing credit crunch. They say the ailing run the gamut, from hospitals to retail and high-tech businesses.
McNutt said the firm is getting three times more calls than last year about Chapter 11 from distressed midsize companies -- those with between $5 million and $15 million in annual revenue. Recently, the firm also was tapped to represent the creditors' committee in the SonicBlue bankruptcy and in a case regarding Selix, a troubled tuxedo rental company that owes $9 million to creditors and is going through liquidation.
The McNutt firm also represents four hedge funds in asset acquisitions in Delaware bankruptcy court.
'The difficulties in the subprime mortgage industry are a preview of what's going to happen in the world of corporate insolvency,' McNutt said.
Murray & Murray, a bankruptcy firm in Cupertino, Calif., has added three lawyers in the past four months, for a total of six lawyers. Name partner John Murray says his practice has expanded as a direct result of the subprime mess.
'We're going to be filing a significant Chapter 11 case for a subprime lender in the next couple of weeks,' he said. Small and me"
Indiana Commercial Foreclosure Law: From The New York Times: "Foreclosures Hit A Snag For Lenders"
0 comments"If you deal with mortgage security pools, and in particular the foreclosure of mortgages within such a pool, you should read today's interesting article from The New York Times: 'Foreclosures Hit a Snag For Lenders'. The article addresses federal court foreclosure litigation in Ohio and specifically an opinion by Judge Boyko dismissing fourteen cases because the plaintiff (foreclosing entity) failed to prove it had standing to pursue the cases. I located the Judge's October 1 order referenced in the article: .pdf. My colleague Chris Jacobson helped find the October 31 opinion: BoykoOpinion.pdf.
Information for health savings accounts
0 commentsThis site is presented as general information, and not as an advertisement of, or solicitation for any health insurance product. Precise HSA tax effects depend on federal law. We recommend that you see your tax advisor for specific tax advice.I know little myself about health savings accounts outside of some political debates on national health care. Of course, the site is pro-HSA but considering the site's disclaimer above, I think that is not objectionable or a surprise. Do take the site's disclaimer to heart, check with an accountant first. You might consider the information provided here as providing the content for that conversation with your accountant.
Car bought but title not delivered?
0 commentsUnfortunately, the potential client wanted the car and the matter went no further. Interesting little statute, though. I get calls about whether a car can be returned in three days (you cannot, see my post here) and I think I need to be asking if the buyer has gotten title to the car.
(c) A vehicle dealer who fails to deliver a certificate of title within the time specified under this section is subject to the following civil penalties:(2) Two hundred fifty dollars ($250) for the second violation.Payment shall be made to the bureau and deposited in the state general fund. In addition, if a purchaser or transferee does not receive a valid certificate of title within the time specified by thissection, the purchaser or transferee shall have the right to return the vehicle to the vehicle dealer ten (10) days after giving the vehicle dealer written notice demanding delivery of a valid certificate of title and the dealer's failure to deliver a valid certificate of title within that ten (10) day period. Upon return of the vehicle to the dealer in the same or similar condition as delivered to the purchaser or transferee under this section, the vehicle dealer shall pay to the purchaser or transferee the purchase price plus sales taxes, finance expenses, insurance expenses, and any other amount paid to the dealer by the purchaser.
(3) Five hundred dollars ($500) for all subsequent violations.
Homeowners must follow health codes
0 comments"Owners of houses or mobile homes they construct themselves still must follow Indiana health codes, the Indiana Court of Appeals ruled today. The appellate court overturned a trial court's ruling that a section of Indiana code exempted certain homeowners from obtaining a permit for septic systems."