Archive for April, 2015

“BUT IT JUST DOESN’T SEEM RIGHT TO FILE BANKRUPTCY”

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As a bankruptcy attorney I hear this all the time. The statement is made in order to regain what the client mistakenly perceives as the respect I have lost for him because he fell behind in his bills. The next statement of mitigation is usually, “I waited as long as I could.” This usually means that for several years the client has made minimal payments on a number of bills, and has developed a great dislike for macaroni and cheese. Meanwhile the creditors who know the client will never be able to get out of debt by paying the minimum on all their debts, benefits by each new month the client suffers.

If you see that you might have to file bankruptcy, talk to a bankruptcy attorney as soon as you consider the possibility. Bankruptcy planning, like tax planning, is a legitimate method of protecting your financial estate. Just because you visit a bankruptcy attorney does not mean you will be advised to file bankruptcy. And most bankruptcy attorneys will be glad to give you a free consultation.

England once had debtors’ prisons – but not today in America. In the U.S. financial speculation has made our economy as powerful as it is, and regardless of its ups and downs, it is still the envy of the world. In order to promote speculation, the risking of money to make more, we have bankruptcy. It allows us to do the best we can to survive economically, but if we can’t, we have a fair legal option for a fresh start using the bankruptcy laws.

“But isn’t filing bankruptcy admitting failure?” When asked this question, I like to provide my clients a list of a few famous successful Americans who have filed bankruptcy, and rebuilt their financial estates, including: Walt Disney, Mark Twain, Thomas Jefferson, Henry Ford, Charles Goodyear (of Goodyear tires), Henry John Heinz (catsup manufacturer), Milton Snavely Hershey (the Hershey bar), Mickey Rooney, Willie Nelson, Merle Haggard, Wayne Newton, Jerry Lee Lewis, Larry King, P.T. Barnum, and Donald Trump. Without bankruptcy these contributors to America would have been stopped dead in their tracks.

And to those clients who are not comforted by the above arguments, one can refer to the Bible. I can’t explain it better than this:

“At the end of every seven years you shall grant a release of debts. And this is the form of the release: Every creditor who has lent anything to his neighbor shall release it; he shall not require it of his neighbor or his brother, because it is called the LORD’s release” (Deuteronomy 15:1-2).
“…the borrower is a slave to the lender” (Proverbs 22:7).
“…in the seventh year you shall let [your Hebrew slave] go free from you. And when you send him away free from you, you shall not let him go away empty-handed; but you shall supply him liberally from your flock…” (Deuteronomy 15:12-14).

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WHAT YOU PROBABLY DON’T KNOW ABOUT YOUR ON-LINE BANKING ACCOUNT

There is a little known fact about on-line banking that created a recent client serious problems, and after some research, I discovered could someday hurt me.

For a long time I have wondered exactly what the “payment date” means in relationship to my on-line banking account. Is that the day that the bank sends a check or electronic debit to my creditor, or is that the day the creditor will make a withdrawal from my account? What difference does it make, you may say? In my circumstances here is the explanation:

My mortgage is due on the first of each month. I set up my on-line banking account so that the payment is made on the first of each month. That works great because I have a pay check that is deposited on the last day of each month.

My bank is so efficient that they tell me by email when they make an automatic payment from my account. Recently that mortgage payment was sent to my mortgage company on the 27th! Banks only allow payment to and from each other by paper check, so in order for my mortgage to be paid on the 1st, the mortgage bank has to have the check printed by my bank, and mailed before then.

I was concerned that toward the end of the month before my paycheck arrives, that my account might be running a little low, so I called my bank. Surely the check sent to the mortgage company would be dated the 1st – the day I authorized the bank to pay the bill — but I was wrong, it was dated the 27th!

So what this means is that if the mortgage bank gets the check the day after it is mailed, and they cash it, the amount will be taken from my account before my paycheck arrives, and I could overdraw my account, and be assessed an overdraft fee.

It might be a good idea to ask your bank exactly when an on-line banking disbursement is paid.

THE LESSON TO BE LEARNED – When you use online banking, and set up bill payments, be aware that payments may be paid a few days before your request, so make sure you have enough money in your account at all times to cover any on-line payments you have authorized.

LESSON TWO – Just because your bank informs you that a check has been sent to pay a bill, doesn’t mean that the debt is paid. It may only mean that the check has been mailed and depending on the creditor, it could be days or weeks before the check is cashed. This lesson is particularly important if you close a bank account, or withdraw authorization for a creditor to take payments from your account. If you close the account, or withdraw the authorization, it is of no importance that a check has been sent by your bank to the creditor. That check cannot be cashed if you have closed your account. So before closing an account, confirm that all checks and on-line payments issued have cleared your account.

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Illinois Free Legal Advice?

No, I am in no more of a position to give free legal advice, than is any other attorney – or a carpenter to build you a free shed – but certain people can acquire free legal advice if they qualify.

Public Defenders in Illinois are lawyers paid for by county governments to represent defendants in criminal court. They only are assigned to cases in which the defendant is in jeopardy of serving jail time. So you cannot be appointed a Public Defender if you have a speeding ticket, but you maybe can if you are charged with a misdemeanor or a felony.

If you are charged with an offense for which you could go to jail, the judge will ask you at your first appearance before the court if you plan to hire a lawyer. He will ask whether you have the means or choose to hire your own lawyer, and if you do, no public defender will be appointed. If you tell the judge that you cannot afford to hire a lawyer, and can convince him or her of that fact, and you so choose, a public defender should be appointed.

But if you have an income that the judge believes is sufficient to hire a private attorney, she may suggest that you call a few lawyers to determine how much they would charge to take your case, so you and the court will know for sure whether you have the means to hire private counsel. Should the judge still believe your income is sufficient, he may determine that you should pay a nominal fair amount for your being represented by a Public Defender.

If your arrest was for DUI, a Public Defender can represent you before the local court on the criminal charge, but he is not paid by the county to represent you in an attempt to eliminate the suspension of your license that arose from the DUI arrest. We are talking apples and oranges here – the criminal DUI offense, and the license suspension are two separate matters. Public Defenders do not file petitions to eliminate DUI suspensions.

So far I have mentioned only one segment of the population that is eligible for free legal advice. There is the equivalency of Public Defenders available to help some people with non-criminal cases, such as evictions and divorces – The Land of Lincoln Legal Assistance Foundation. Because their budget has been slashed for decades, they have the resources to help very few clients. Senior citizens, and Southern Illinoisans with very low incomes may be eligible for Land of Lincoln’s help. If they deny services to you, even if you are below the poverty level, the denial was not their preference. Our government leaves this honorable organization with just barely the funds to stay in business.

The SIU Legal Clinic at www.law.siu.edu/selfhelp offers information and guidance to help pro se (doing it yourself) litigants with a number of legal matters such as divorce, housing, name changes, expungement, children, wills, powers of attorney, guardianships, small claims, and immigration, to name a few. If you cannot afford to hire an attorney, you can depend that the information on the SIU website is correct and user friendly.

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NEW WAY TO POST “NO TRESPASSING” WITHOUT SIGNS IN ILLINOIS

If you want to keep trespassers off your land, there is now a way to warn them without spending money on pre-painted signs, or time and money, making your own signs.

The “Purple Paint Law” went into effect in 2011. At that time even using purple paint, you had to display “no trespassing” signs to give trespassers legal notice that they were not welcome on your property. As of 2013, the “no trespassing” signs are not needed – you can provide the same legal notice with purple paint.

Such notice is a relatively easy way to eliminate an unwelcome hunter’s claim that he didn’t know he was trespassing. Landowners or lessees (the person leasing the land) can now ban trespassers with a series of purple marks on trees or posts.

The purple marks must be either:

1) A vertical line of at least 8 inches in length. The bottom of the mark shall be between 3 and 5 feet high off the ground. Each mark shall be no more than 100 feet from another such mark and be readily visible to any person approaching the property; or
2) A post capped or otherwise marked on at least its top 2 inches. The bottom of the cap or mark shall be between 3 feet and 5 feet 6 inches high. Posts so marked shall be no more than 36 feet apart and be readily visible to any person approaching the property. Prior to applying a cap or mark that is visible from both sides of a fence shared by different property owners or lessees, all such owners or lessees must agree to the decision to post their own property.
Trespassing on property so marked constitutes a Class B misdemeanor, except when a person trespasses using a motor vehicle if the marked area is an orchard; an enclosed area containing livestock; a barn or other agricultural building containing livestock; or a field that is used or capable of being used for growing crops. Such trespassing constitutes a Class A misdemeanor.
No landowner or lessee is authorized to post purple marks if doing so would violate any applicable law, rule, ordinance, order, covenant, bylaw, declaration, regulation, restriction, contract, or other instrument.

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