Newsletter |
Winter 2004 |
Fisher's Law Office |
Welcome to the NEWSLETTER of Fisher’s
Law Office, providing you with legal information you can use in your
everyday life. If you have questions about what you read in this
newsletter, please call us today.
1. Beginning This Year, Cancelled Checks Are A Thing Of The Past
Major changes are taking place in the way checks are processed
in the United States. As of October 28, 2004, checks are no longer
transported to the issuing bank. Instead, an electronic image of
your check will be processed. Under this new federal law, the image
of the front and back of the check (referred to as a “substitute
check”) has the same legal force and effect as an original
cancelled check. This will provide for quicker processing of checks
and quicker detection of fraud in the U.S. financial system.
2. Do You Have A Defined Benefit Pension Plan?
If so, you should check on the financial health of your employer.
As thousands of airline employees have discovered, when their employer
goes bankrupt, their pension is in jeopardy. One example of this
is U.S. Airways which recently used the bankruptcy code to re-write
its contractual requirement to make employee pension contributions.
The United States federal government sponsors an organization called
the Pension Benefit Guarantee Corporation (PBGC) that will pay some
pension benefits to U.S. Air pilots. However, the new monthly pension
benefit is often much less than the benefit the employee planned on.
For example, an airline pilot who expected a pension of $100,000.00
per year could receive as little as $20,000.00 to $40,000.00 from the
PBGC.
Moral? Never trust your company to pay your pension. Do everything
you can to protect yourself by saving for retirement in private savings
accounts, IRAs and 401(K) plans. If you’re working for a company
that’s about to declare bankruptcy, consider early retirement
and other methods to get your pension benefits now before your company
goes bankrupt and your pension is lost or reduced.
3. Credit Card Alert !!
Fisher’s Law Office has noticed an alarming trend in which
credit card companies are selling their credit card accounts receivable
to financial speculators. The speculators sue the debtor for the
amount of the debt plus attorney’s fees and interest even though
the speculator only paid a few cents on the dollar for the credit
card obligation.
What can a consumer do? Go to a competent lawyer immediately if
you are sued for an old credit card obligation. There are many defenses
to such lawsuits such as the following:
- Credit card companies are required to give you a written notice
of their assignment of your debt. If notice isn’t given,
the financial speculator may not be able to collect the debt. (see
Florida Statutes, Section 559.717)
- The speculator may not have a legible copy of the assignment,
the contract or the credit appli-cation. If so, it might not be
able to obtain a judgment against you.
- The statute of limitations may have run on the debt. Under Florida’s
statute of limitations law, the creditor must file suit within
five years to enforce a contract (Florida Statutes, Section 95.11).
- The creditor may be suing the wrong person! Carefully read any
documents attached to a lawsuit to make sure that you are the same
person who incurred the debt in the first place.
- You are not responsible to the financial speculator for the debts
of your deceased spouse. Under an ancient English legal concept
called the statute of frauds, you’re not responsible for
the debts of another unless you sign a writing promising to pay
the debt of another. (In 1828, Florida adopted the Statute of Frauds
- see Florida Statutes, Section 725.01).
- Lastly, don’t forget that lawyers who work for creditors
are considered to be “debt collectors” under the Fair
Debt Collection Practices Act. If they fail to comply with this
law, you may have a claim for violations of the law.
4. The New Hipaa Law And You! (why It’s So Hard
To Get A Copy Of Your Medical Records)
Under a misunderstood federal law called the Health Insurance Portability
and Accounting Act (HIPAA), any person who maintains or transmits
health information must assure that the information is confidential
(42 U.S.C. §1320d-2).
- If a person knowingly obtains or discloses individual identifiable
health information to another, that person is subject to a penalty
of up to $50,000.00 and a year in jail. (42 U.S.C. §1320d-6)
- If a person sells individually identifiable health care information
for profit, the fine is up to $250,000.00 plus up to ten years
in federal prison! (42 U.S.C. § 1320d-6)
Although this privacy law was well intended, the practical effect
is to scare doctors and prevent patients and their loved one from
getting access to health care records.
For example, our client had trouble getting access to medical records
for his deceased mother to make an accidental death claim with an
insurance company. Until Congress changes this draconian law, people
will continue to be thwarted in getting access to their medical history
and records for themselves and their loved ones.
5. Mortgage Fraud Warning
Identify theft has now taken a sinister turn. Criminals are posing
as homeowners and taking out fraudulent loans. Unfortunately, the
real homeowner has no idea that a mortgage has been taken out on
his property until he is ready to sell his property or refinance
it!
Do not underestimate the scope of this problem. The United States
Federal Bureau of Investigation (FBI) is currently investigating
hundreds of mortgage fraud cases. Unfortunately, the FBI is busy
with “homeland security” concerns and has reduced its
normal police functions. For example, in one recent mortgage fraud
case in Orlando, a $2,500,000.00 loan was taken out on a victim’s
property by an imposter but the FBI declined to even open an investigation!
What can you do to protect yourself from this type of identity
theft?
(a) Consider putting a total freeze on your credit with the three
major credit bureaus (TRW, Equifax and Experian) so no bank or
loan company can obtain your credit report and lend money to someone
pretending to be you.
(b) Periodically check your own name in computer databases and
at the courthouse to verify that you haven’t taken out any
mortgages that you are unaware of.
6. Here Are Some Recent Cases That Fisher’s Law Office
Have Handled:
(a) Our client is freed from a boat mortgage. Our client was
a grieving widow whose husband had passed away. At the time of
his death, her husband owned a large boat worth almost $100,000.00.
A notice of the probate of the estate was sent to the creditor
holding the loan on the boat but the creditor failed to make a
claim against the estate. Eventually, the boat was repossessed
and sold by the bank but a large balance on the boat mortgage remained
after the boat was sold. Months after the deadline had run to file
a claim in the estate, the boat mortgage company approached the
estate asking for money. The estate did not have to pay the claim.
The widow’s children received a modest inheritance and the
estate was closed.
(b) Florida’s homestead law protects our client’s
house. A woman asked us to assist in probating the estate of her
mother. The only asset of the estate was the mother’s house.
The deceased mother had an unpaid credit card at her time of death.
Because of the Constitution and the proper filing of a “petition
to determine” homestead, our client received the home of
her mother free of the credit card bill.
Under Florida’s homestead law (Article X, Section 4 of
the Florida Constitution), a Floridian’s home is exempt from
forced sale. Remember: If a loved one passes away owning a home,
the home can probably pass to the children named in the Will without
having to repay general creditors.
(c) Fisher’s Law Office stops an illegal wage garnishment
. Our client is a young mother supporting two children. A loan
company had a judgment against her for an unpaid debt. The loan
company began garnishing her wages.
Under Florida Statutes, Chapter 222, our client is exempt from
seizure of her wages by a creditor because she is considered a “head
of a household”.
Fisher’s Law Office immediately filed a Motion to Set Aside
Garnishment under Florida Statutes, Section 77.041. The court quickly
put a stop to the garnishment. As a result, our client was able
to keep her wages and support her family.
7. Medicaid Primer
- Many clients ask Fisher’s Law Office to help with Medicaid
issues. Medicaid is a health program that provides health care
for the poor. Here are some Medicaid rules that everyone should
know:
- Anyone who uses Medicaid after age 55 carries a lifetime debt
that follows them after death.
- To apply for Medicaid, you should have less than $2,000.00 worth
of assets. Also, your spouse has a limit on how much money she
can have in order for you to apply for Medicaid.
- Once you die, your estate must give notice to the Centers for
Medicare and Medicaid in Tallahassee, Florida, so that Medicaid
can file a claim against your estate.
- If your estate objects to a Medicaid claim and Medicaid lets
30 days go by without filing a lawsuit against the estate, the
estate does not have to pay Medicaid.
- The only way for the Medicaid program to prove the amount of
its lifetime Medicare claim against your estate is for you to waive
your “HIPAA privacy rights” contained in the Health
Insurance Portability and Accountability Act (HIPAA) passed in
1996 by the U.S. Congress. If the estate refuses to cooperate in
waiving privacy rights, the Medicaid program might not be able
to prove the amount of the claim.
- If you give away assets, the Medicaid program will “look
back” between three and five years and disqualify you from
Medicaid for a period of time depending on how much money you gave
away.
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