Deciding to represent yourself (pro se) in litigation or bankruptcy is risky business.

31 May 2012

At times people consider representing themselves in a legal matter for various reasons. It could be the price of competent counsel, not knowing an attorney that you trust, or a belief that you can handle the matter on your own, or all or some combination of these or other factors. This blog is written to allow you to consider one item using a somewhat recent political event as an example before making that risky decision.

Do you remember the Monica Lewinsky scandal? Do you remember the suit Paula Jones filed against then President Clinton prior to that? Who could forget these events; they were the significant basis of the investigation of former President Clinton, which lead to President Clinton’s “impeachment.” Do you remember thinking impeachment meant the actual removal of the President from office? Do you remember somewhere along the way in the saga being surprised to learn that impeachment meant something different than you thought. This is because you and most of the rest of the country thought they knew the meaning of impeachment. In fact, it was not even a word they had any question about. They thought they knew the meaning, but we were wrong.

It was learned that impeachment simply meant that a charge (in Clinton’s case, two) is brought against the President by a vote of the House of Representatives, which would cause a trial of sorts to be held in the Senate and presided over by the Chief Justice of the Supreme Court to determine/decide on removal. We all know the rest of the story; President Clinton was “impeached” but not removed from office.

The point here is that there will be a word, or likely many words, which you will think you know the meaning of when approaching a legal matter, but you will be mistaken as to the correct meaning. Instead of learning the correct meaning of a legal word in the safety of your home or office with nothing at stake (like when you learned the correct meaning of “impeachment”) this time, when you are representing yourself in a legal matter, being incorrect will likely have consequences. It may be that you misread a notice from the court or a pleading filed by the opposition. It may be that the realization that you were wrong about the meaning of a word or phrase occurs in open court which throws you off your plan and ruins any chance you had at making a good presentation. It may be that you repeatedly display your ignorance with the whole court room aware that you do not know the meaning of a word or phrase except you, and you leave not knowing why you lost.

We suggest that you consider how much you have at stake and whether you want to risk the case that could be lost on one shibboleth. (smile)

What does it cost to file bankruptcy in Massachusetts (in attorney’s fees)?

11 May 2012

This is common question posed by a prospective client when they are “shopping” for a bankruptcy attorney to file under chapter 7 or chapter 13, especially by those that put a significant emphasis (often an overemphasis) on price. This post raises one consideration for those that emphasize price when choosing an attorney on a fixed fee basis.

A real low (fixed fee) price may seem attractive because you are used to shopping for a product that is the same from store to store. But that is not the situation when purchasing professional legal services. There is a reason (or many reasons) the price is so low, when comparing fixed fee quotes. I suggest that it is quite likely that in order for the cheapest lawyer to be profitable he will invest less time in a case than other lawyers would and/or he simply cuts corners. As the cheap lawyer operates in this way, the risk of mistake, a mistake that could cost a client (that is you) a loss of rights, property, or funds, increases dramatically.

If such a mistake is made in your case and you are damaged, this may give rise to a legal malpractice case. Pursuing such a case is not an easy task, for one significant reason. It is that, except in the most clear, egregious situation, proving a malpractice case requires an expert to testify on your behalf to argue that the services rendered (or not rendered) by your prior attorney fell below the standard of care. And an expert costs money, a lot of money. So you may have a great case but find yourself unable to pursue it because of the great costs. This is why you should take every step you can to avoid engaging a lawyer that is more likely to make a mistake, and I suggest that means avoiding the cheapest lawyer.

As grandmother used to say, an ounce of prevention is worth a pound of cure. Or as some say, you get what you pay for. This is a consideration for those of you putting too much of an emphasis on price when questioning how much a chapter 7 or chapter 13 bankruptcy costs in Massachusetts.

What should I do if I dispute the amount that I owe to a creditor?

4 May 2012

Well if you live in Massachusetts, you have a new tool to use against a creditor that is collecting the wrong amount.  It is 940 Code of Massachusetts Regulations 7.08.

What the new regulation does is require creditors and debt collectors to validate debts that are at least 30 days past due. This means that if a proper dispute is raised, the creditor or debt collector has to provide certain information to support its claim.  It further requires a creditor or debt collector to provide a notice to the consumer about this requirement when collecting a debt under such circumstances.  The teeth to the regulation are that the debt cannot be collected until it is validated.  The theory is that if there is a valid dispute or problem that the validation process will stop the improper collection of the debt.  Alternatively, the process will clarify the matter for the consumer, possibly by allowing the consumer to discern exactly what the debt is and how it arose. 

The reason that this new regulation is so significant is that the requirement applies to “creditors.”  You see, in the debt collection world of law there are generally two kinds of entities, creditors and debt collectors.  (There are also debt buyers, but they are more akin to debt collectors for the most part.)  These have been defined under the Fair Debt Collection Practices Act (“FDCPA”), which is the federal law governing debt collection and has been fairly unchanged since the 1970’s.  Roughly stated, under the FDCPA, a “creditor” is an entity that was originally owed the debt, a “debt collector is not the creditor but is an entity that is in the business of collecting past due debt (usually as an agent of a creditor).   The FDCPA only applies to debt collectors and specifically excludes creditors.  The FDCPA requires debt collectors to validate debts and this requirement for debt collectors has been long standing and is well known.  But, states, so far, have generally regulated the debt collection world with the same distinction as the FDCPA, leaving creditors alone for the most part.  Apparently, through this regulation, Massachusetts is the first state to require a “creditor” to validate a past due debt.  This is the significance.

If you believe any entity is trying to collect the improper amount or you wish to use this regulation discussed, or any other debt collection law or regulation to your advantage, we suggest that you give us a call to see how we can help.