Archive for March, 2012

NUCLEAR VETERANS ENTITLED TO GOVERNMENT COMPENSATION

I recently discovered that while in the U.S. Army, a friend became a “Nuclear Veteran.” No, he was not at Hiroshima nor Nagasaki. He became a nuclear vet while stationed near Las Vegas, Nevada, at Camp Desert Rock. It was there that over a three month period soldiers were required to experience a nuclear explosion so they would be prepared to attack after someone dropped a bomb. (this experiment was referred to by the military as “Operation Upshot Knothole”) Trenches were dug, the soldiers hid in them while nearby the bomb was exploded – some by cannon, some dropped from the air, and some from towers. During that time there were 11 bombs exploded. They described it as experiencing a bright light, like that from an arc welder. They were instructed to not look at the light, and to wait until after the shock wave and light had ended. At that time they exited their trenches.

He described seeing sheep near the explosions with burned eyes. Some of the government documents about operation Upshot Knothole describe some soldiers who were too near the explosions, and whose dosimeters registered too high. They were required to exit the dangerous area on foot as they walked over high radiation to awaiting trucks in the safe area.

Obviously, proximity to a nuclear bomb explosion can cause radiation damage to the human body as we learned from the Japanese. And remember that thousands of Americans visited the Japanese sites after the military entered Japan, and walked around the site of the explosion, breathing in all that radioactive dust.

The American government eventually admitted that radiation exposure may have caused these Americans health issues. Legislation was passed that created a presumptive list, a list of cancers, that if suffered by a person who was exposed to nuclear testing, or in some cases, working around nuclear materials, the government would presume the cancers came from the radiation exposure. These presumptive cancers are mostly related to breathing or ingesting the radioactive dust. If you or a deceased loved one has had one of these cancers, the government can provide you monetary compensation for your illness. If you have had other cancers, and your radiation exposure was high enough, you may also be eligible for compensation.

In a recent conversation with the daughter of a veteran who was dying from his exposure, I learned that not only the U.S. government is guilty of subjecting their soldiers to such testing. Most of us remember the testing that was done at Bikini Atoll and other sites in the Pacific. Soldiers from other allied militaries were present for some of those tests. England is making it difficult for their nuclear veterans to claim their compensation, too. This daughter of a victim explained that even the children born to nuclear testing veterans have suffered birth defects.

I have been helping my client pursue this matter to see if he is eligible for compensation due to his exposure. He was stationed at Desert Rock for the entire series of explosions, so we are concerned his dosimeter (a measuring device those near the explosions had to wear, that is supposed to record the extent of the wearer’s nuclear exposure) reading may be high. The government says they have dosimeter results on file for all the personnel who were near the explosions.

I have never been in the military, but I have battled with banks to help foreclosure victims try to keep their homes. I can compare the odyssey of nuclear veterans trying to get compensation, to that of foreclosure victims trying to keep their homes. It seems that those who collect information to decide who is compensated, are part of a process meant to wear the applicant down, so that he eventually gives up before completing the necessary documentation. If you are looking for something to do for the next year, and have a loved one who was a nuclear veteran, or who was a nuclear veteran and has passed away, you might want to try for the compensation. You will have to obtain proof the veteran was present at a nuclear site by review of his service records, obtain a dosimeter reading, complete application forms for either the Department of Justice, and/or the Veterans Administration, and acquire medical records of the veteran’s illness.

I will provide some of the resources I have used while trying to submit a claim:

Websites for nuclear vets and their families:
www.nuclearveterans.com/
www.naav.com/

Compensation Forms from the Department of Justice:
http://www.justice.gov/civil/common/reca.html

Government press release about the compensation program:
http://www.angelfire.com/tx/atomicveteran/dtra.html

About radiation health exams available for veterans:
http://www.publichealth.va.gov/exposures/radiation/registry.asp

US Dept. of Veterans Affairs, Diseases Associated with Ionizing Radiation Exposure:
http://www.publichealth.va.gov/exposures/radiation/diseases.asp

How to File a Claim:
http://www.dtra.mil/SpecialFocus/NTPR/NTPRHome.aspx

Radiation Exposure Compensation Act Information:
http://www.justice.gov/civil/common/reca.html

Nuclear Test Personnel Review (NTPR) Program Helpline. 800-462-3683

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Diploma Mills and Bankruptcy

In a bankruptcy, your federally guaranteed college loans cannot be discharged. Buy a lemon of a car, and you can file to get rid of the debt, but buy a lemon of an education and you are stuck with paying the debt. In a few unusual situations you can get the debt discharged, but I usually describe those as times like when a music major who plays piano, loses her hands in an accident, she may be able to get her school loans discharged.

More and more we are hearing about diploma mills that trick students into enrolling by making promises of easy schooling and guaranteed jobs, only to leave the student in debt, broke, and unemployed after the education. Primarily these educational institutions have been on-line colleges, but believe it or not, there are lawsuits directed at LAW SCHOOLS that lied about their placement rates in their solicitation of new students. I have seen many truck driving school loans listed as creditors in a lot of bankrupties, and those loans too, are not dischargeable if they are federal.

Recently there has been news coverage of the fact that many diploma mills are simply machines to trick desperate victims of unemployment to get federal loans to benefit the schools, not the students. At some point in time there will be a bankruptcy discharge of such a scam, but to my knowledge it has not happened yet. Have you or someone you know been vicitimized by such an “educational institution?”

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Harrisburg Tornado Victims, Free Chapter 7 Bankruptcy

In light of the fact that I have just started my practice, and have some free time, if you know of someone who might need a free Chapter 7 Bankruptcy because of damage or loss of employment due to the tornado, reply below with your email address and I will get in touch with you, or send me an email. You do not need to be the victim, if you want to simply recommend someone, let me know. We can keep the name of the victim confidential if it is not posted in your reply on the blog. At this point I can only commit to one free Chapter 7. See “About Me” above for contact information.

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COMMON REASONS FOR DUI STOPS

After a few drinks, while driving:
1. Drive a car with a burned out light.
2. Take your eyes off the road while lighting a cigarette…
3. or while adjusting the radio.
4. Forget to dim your lights.
5. Weave in your lane of traffic.
6. Drive well travelled roads where you can expect roadblocks.
7. Draw attention to yourself with bumper stickers, or horseplay with friends while driving.
8. Get into a road rage confrontation with another driver.
9. Stare, paranoid into your rear view mirror while a cop follows you.
10. Fail to use a turn signal.
11. Drive too fast, or too slow.
12. Do a U turn to avoid a roadblock
13. Pull over to sleep in your car, where you will be seen by an officer.
14. After a few drinks, drink a few more, then too many.
Have I forgotten any?

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Banks Corrected Robo-filing Problems

You may have heard on the news that the many foreclosures that were delayed because the mortgage companies cut corners to file in a hurry — have now resumed their normal filing rate. Many mortgage companies filed foreclosures without following the proper procedures, so some lawyers, and some judges, stopped the foreclosures by requiring the filer to follow the law. It delayed the foreclosures for a few months, but as the news said today, those problems have been corrected. The banks have no new advantages, and if anything are probably being a little more carefull before filing foreclosures. Home-owners facing foreclosure over the last year, maybe got more time, but those in the future will probably have less of a chance to challenge the foreclosure successfully.

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ILLINOIS’ NEW SEATBELT LAW

Can the driver get a ticket if a passenger refuses to put on a seatbelt?

Although law enforcement agencies may want to claim otherwise, after reading the new statute, I can only conclude that it seeks to make a criminal of the adult in either the front seat or backseat who refuses to buckle up.

It does NOT require the driver to attempt to throw the scofflaw out of the car, or to fight with him to force him to buckle-up, or to refuse to let the car move till after the seat belt is buckled.
But if you have someone who is unable to buckle herself in, as a driver, YOU can be held responsible for refusing to help that person get buckled (unless she has a doctor’s excuse that it is dangerous to her health to wear a seatbelt). The previous laws about children wearing seatbelts and using car seats still apply as before, so the driver can be ticketed for not buckling up children.

The statute says the ticket is a petty offense punishable by a $25 fine, but in the two counties nearest me, a seatbelt ticket will cost you $60 after costs.

If you get a ticket because your passenger wears no seat belt, or hear of someone who has, please reply, and let us know whether it was a city, county, or state cop who wrote the ticket.

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DUI MYTHS

After ten years of working as a DUI lawyer, I heard all the stories. Clients, more out of hope, than belief, had ideas about how they could “beat a DUI.” I was all for them if they had a rational, good idea that would work in court, but nearly all the urban legends that we have heard about how to outsmart the system and avoid a DUI, are false. Do a search for “DIU Myths” on the net and see what kind of hits you get. You will find lawyers who want to encourage you that they can win your DUI. Yes, I too can win your DUI, but I’d like to give you some real world facts that might help you be less likely to find yourself under arrest. Following are a few of the myths:

1. “I didn’t get my Miranda warnings” – Miranda warnings are discretionary warnings to be given at arrest to let the arrestee know that he is under arrest, and as you may remember Sargent Joe Friday saying, “You have the right to remain silent, anything you say, can and will be used against you in a court of law, you have the right to have an attorney present, and if you cannot afford one, one can be appointed to represent you before questioning.” Miranda warnings do not need to be given until the officer believes he has probable cause to arrest you, and if you have run through two red lights, weaved in your lane of traffic, rolled over the curb when you tried to park, slurred your speech while talking to the officer, have an odor of alcohol on your breath and failed three field sobriety tests, along with a preliminary breath test, the officer does not need any more evidence to convict you.

2. “If I am out of the car by the time the cops arrive, they can’t bust me for driving while intoxicated.” – As long as the officer or another witness can attest that you were driving at the time you are alleged to be intoxicated, the officer does not have to see you in the car when he arrives to arrest you. This is the scenario where you knock down a mailbox with your car, a citizen gets your license plate number, calls the cops, and they arrive just after you arrive home. If the cop can convince a judge or jury that you looked drunk, you can be convicted.

3. “I couldn’t do these (field sobriety) tests if I were sober” – Please don’t say this, yes the tests are difficult, but you’ve just admitted you are drunk.

4. “Young ladies, offering the arresting officer…favors.” – There are some cops who might take you up on the offer, but only at the risk of losing their job. Now there are cameras and microphones to record all that happens at an arrest, and such an offer is not something your lawyer will want replayed in court to be heard by a jury of mature married men and women.

5. “Put a penny in your mouth before taking the breathalyzer test” – I have no idea where this came from, but a penny, a cough drop, or anything else in your mouth will not help. The officer is required to make sure you have nothing in your mouth for several minutes before you take your test, and if he does not have you wait the necessary period of time, it is his failure to follow the breath testing procedure that will help your case, not you trying to be a wise guy. All you’ll do is convince the judge or jury that even you feared failing the breath test.

6. “I’m a little woozy from mixing two beers with my tranquilizers – but the Xanax was prescribed, here’s the bottle.” – The charge is called “driving under the influence” and is proven by the officer showing that your ability to control your vehicle has been voluntarily impaired. It makes no difference whether the pills are prescribed, non-prescribed, and legal or not. If you’re impaired, you can be convicted.

7. “The officer asks you: are you under the influence of drugs OR… alcohol?” – After the arrest, when the officer asks you this question, it is not a multiple choice test. You don’t benefit your case by denying you have used drugs, and admitting you are under the influence of alcohol. If you are not sure you are under the influence of either, answer “No.”

8. “I can’t be guilty, I’ve been sleeping it off in my car, and haven’t driven for hours.” – There is a doctrine in DUI case law called “actual physical control” that says that if you are in the car, and have the ability to drive away, you can be found guilty of DUI, whether you are driving or not. Getting out of traffic and sleeping it off is a good idea, but here are two suggestions: find an inconspicuous place to hide, or if you want to be safe, park, throw your keys away where you cannot get to them, maybe lock them in your trunk, and sober up before the car is moved.

9. “I was drunk, but after four cups of coffee in the last hour, I’m OK now.” – Coffee does nothing to help metabolize the alcohol in your system. You may feel more awake, but your blood alcohol level does not change because of the amount of coffee you drink. Check the blood alcohol calculator on my blog for a better understanding of how much you can drink before you are over the legal limit.

10. “Whew, I only blew a .07, so I’m not guilty.” – In states where the blood alcohol content necessary to be presumed to be under the influence, is .08, just because your score is below that level does not mean you are not under the influence. There are two ways for an officer to charge you: because you blew .08 or higher on the breathalyzer, or because, for want of a better term, “you looked drunk to the cop.” If the officer can convince a jury that you displayed the characteristics of a drunk, you can be convicted, regardless of your blood alcohol level.

These are only a few of the myths that I have accumulated over the years. Please feel free to send me any you have heard of and I’ll be glad to reply if you would like.

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Stopping Foreclosure through Loss Mitigation Departments

Shortly after the recession hit and it came to light that mortgage companies had taken advantage of the American public by providing them mortgages that they could not afford and that destined them to foreclosure. The lenders danced quickly to offer the appearance that they wanted to “fix” what was broken. A few years later the news disclosed that in their haste to foreclose on properties, the mortgage companies had taken a few illegal shortcuts to simplify the foreclosure process. By this time those lenders and their contractors became highly motivated to garner some positive press, and touted what they thought was the perfect solution – “loss mitigation departments.”

It was never too clear to me exactly whose loss they sought to mitigate, but let’s give them the benefit of the doubt, and assume that they sought to help people avoid foreclosure. I can’t say whether they had loss-mitigation departments before the economic meltdown, but after, they sure bragged that these departments were the solution to debtors who wanted to try to save their homes from foreclosure.

I have had too many dealings with these departments, and my conclusions are as follows: The departments had little motivation to succeed in stopping foreclosures. They were staffed by unqualified insufficiently trained, phone consultants. The consultants worked from a flow chart that tried to anticipate questions, and any questions not on that flow chart of answers, were not answered. They tried desperately not to put you through to a supervisor. They were unprofessional, lost documents, had inadequate databases and one consultant had no idea what the other consultant was doing.

It soon became clear to me that the golden rule of dealing with loss mitigation departments, was to find a consultant that seemed to know what she was doing, and to refuse to talk to anyone else. Get her phone extension, her work schedule, and ask what she has posted as notes in your case. Often-times you might have to go through several consultants before you find a good one, but when you do, she is golden, the best hope you have to working out a deal to keep your house. Treat her with respect, patience, and ask questions – take notes of conversations, dates, and times.

Keep in mind the positions of those involved: you have had your home for years, have been making regular payments until recently, and no one wants your home more than you; the mortgage company does not want a home owned by a person who can’t make payments because the home has probably fallen into disrepair recently, the company has too many homes they can’t sell now (and has for years), and they know that no one wants your home more than you. To keep it you will have to prove that you can keep up with your payments if given another chance by changing the terms of the mortgage. When you apply to keep your house be prepared for your papers to be lost, for you to send them in over and over again, and for each new presentation you will have to update your application with new income and expense information.

In short, you are in a weak bargaining position, because the mortgage company has the legal right to foreclose, so cooperate fully and graciously with your consultant, expect the worst, but don’t give up and you have a chance to avoid foreclosure, and bankruptcy.

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Fighting Foreclosure

After a filed or threatened foreclosure, if you have decided to surrender your house, talk to the bank and see if they will just take the house without requiring you to pay any more toward your mortgage. Even if they agree to such an arrangement you would be wise to consult an attorney to be sure the deal you’re making is the one you are signing. Such an agreement by the bank will basically be a mathematical analysis of market value versus the amount you owe on your loan. If the bank can sell the house to someone new, now, and get as much as they would get from you if they sued you, the bank might cooperate with you and let you surrender it. Remember that you can always surrender a home to a bank; the real question is whether they will sue you for the money remaining due on the mortgage.
The days of driving downtown to the bank to have a cigar with “George Bailey” to decide if he will let you miss a few more payments while you are off work from a back injury, are about over. Most banks or local loan institutions sell your mortgage to a new company maybe several times in the course of the first few years of the mortgage. You will know who you are making your payments to (the loan servicer), but you won’t know anyone at that organization.

Don’t turn your back on the situation, ignoring the past due notices will force the bank to foreclose. With the current status of all the big financial institutions that have lied in foreclosure hearings, with the glut in the housing market, and with the political pressures for mortgage companies to work with mortgagors, the financial institutions do not want to foreclose!
If you want to keep your house, there is a step to pursue before foreclosure or bankruptcy. After the recession, nearly all the big mortgage companies created “loss mitigation departments.” These new divisions of mortgage companies have the job of working with people in danger of foreclosure, to modify the terms of the mortgage so no foreclosure is necessary. We will explore dealing with “loss mitigation departments in the next post.”

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What’s Foreclosure

When you buy a home with a mortgage, a bank pays for the home, and you repay them over time at contractually agreed to terms. The rules for mobile homes are often different, because they may be considered personal property, but this column addresses the average mortgage for a home and land. When you fall behind in your payments, the bank can either give you more time to catch up, maybe adjust the terms of the loan, or they may decide to foreclose.

Foreclosure is the legal means by which the lender uses the mortgage agreement to prove in court that you have reneged on your responsibility under the mortgage, and the bank wants the home back. In short, all your payments toward the house are lost with the house, and the bank regains clear title to the home and property.

Nowadays, most foreclosures involve a home purchased maybe ten years ago when real estate values were at their peak, and banks were indiscriminate in offering mortgages to many buyers who should not have received mortgages because they could not afford them. The banks made the deal look attractive by offering a low interest rate at purchase time, with the infamous” adjustable rate mortgage” (arm) terms. Many buyers didn’t understand that the “arm” gave the right for the bank to raise the interest rate beyond the buyer’s ability to pay in dollars at the time the mortgage was signed, but they gambled that the buyer would earn more money in the future, or that the home’s value would increase over time.

We all know what happened next – recession, decreases in property values, loss of employment, then foreclosure. The first reaction to a threatened foreclosure is shame, fright, and feelings of failure. The house you have called home for so many years may soon be taken away. What should you do first –fight like mad to keep your home, or think your situation through?

There was a time when the American Dream was to own a home, the same home for the rest of your life. Think about it, do you think there is anything that you will own for the rest of your life? What you valued 30 years ago, no longer fits you today (like those bellbottoms in the back of your closet). I have come to realize that the home I bought 12 years will not work out for me when I retire. Times change.
Before beginning a fight to keep your house, do some serious soul searching and impassionate analysis of its current value, it’s future value, whether your payments in the past were equivalent to a reasonable rent, and whether you really want to stay in that house for the rest of your life. Adjustable rate mortgages can make what was a good deal years ago, no longer worth the price. Compared to making payments on a house you cannot afford, plus arrearage payments, you might be wiser to give up the house, find one to rent, and cut your housing costs significantly. It’s a very difficult choice, but sometimes we all must cut our losses.

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