Court of Appeals Hands Homeowners a Win

Another win for the little guy!!

Maybe the average guy is finally getting a break. Or maybe the courts have just decided that there must be some limits on the incredible greed and lust for money by the big banks.

In any case, following a decision from the Ninth Circuit Court of Appeals, the rules as well as the mood  for these banks appear to have changed.

In the companion cases of Corvello v. Wells Fargo Bank NA, 11-16234 and Lucia v. Wells Fargo Bank NA, 11-16242, U.S. Court of Appeals for the Ninth Circuit, the court effectively put an end to the cute games the banks like to play.

At issue in these cases were the terms and conditions of a Trial Period Plan extended by Wells Fargo pursuant to the Home Affordable Modification Program.

If you will recall this is was program enacted by the government in 2009 to help people that were underwater on their mortgages, keep their homes. The idea was to modify the mortgages. This was part of the troubled TARP program and of course, the banks received a financial incentive, courtesy of the U.S. taxpayers for making such modifications.

The modification incentive, and the benefits of receiving loan payments instead of having to foreclose however, were simply not good enough for Wells Fargo. They had to play games with the process.

The loan modification required an application process on the part of the homeowner after which, if they qualified, they were offered a mortgage modification if they complied with a trial payment plan.

The homeowners in both of the case completed the application process and were offered a modification. They had to participate in a trial payment program to establish that they could indeed make the payments provided in the modified mortgage.

Wells Fargo though tried to throw a curve into the mix. They insisted on keeping everything in their favor. How? By specifying that they were not under any obligation to modify the mortgage until the agreement was not only signed by the homeowner (which it was) but also signed by Wells Fargo and a signed copy sent to the homeowner.

Get the picture? All Wells Fargo had to do was to “forget” or “overlook” sending a signed copy to the homeowner and they were technically off the hook.

Thankfully the court cut through that silliness. With a sharply worded opinion the court let Wells Fargo know in no uncertain terms that once the homeowner made the payments that Wells Fargo specified, and signed the agreement, there was a deal, whether Wells Fargo ever got around to signing it or not.

Maybe not on the level of the Boston Tea Party, but still a pretty good outcome for homeowners!!

If  you’re interested in reading the cases, or have any questions, shoot us an email  - info@beyourownlawyer.org

Bankruptcy Thoughts and Consideration

As always, the government paints a rosy picture of the economy. They tell us for example that jobs are being added and that the unemployment rate has dropped. What they don’t mention is that the rate they use does not take into account everyone really out of work. There are huge numbers of unemployed that have just given up. There are huge numbers for whom unemployment benefits have run out – these are conveniently not counted either.

The “real” unemployment rate in the U.S. in June was 14.3% - the so-called U-6 rate which factors in those job seekers that the traditional unemployment rate conveniently skips over. Moreover it shot up in June from May by a full half percentage point.

This paints a pretty bleak picture of our economy. Combine that with Detroit filing for bankruptcy, and major companies defaulting on pension obligations, and the picture is  little less rosy.

In this environment it is no wonder that many Americans finding themselves in a corner, are considering bankruptcy as an alternative.

This is fueled by the marketing and hype from the attorneys offering bankruptcy services. Who hasn’t seen a billboard that at least implies that by talking to such and such guru attorney all of your money problems will magically disappear?

It’s tempting.

But Think it Through.

First, bankruptcy is a different creature than it was before the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act.

As a side note – I love the Orwellian contradictions. Trust me – there is nothing in this legislation that protects consumers! It is all about protecting the banks, credit card companies and consumer finance companies from any effort on the part of crushed borrowers to see daylight.

This legislation has made major changes in bankruptcy. Without exception, to the detriment of the poor person finding themselves opting to file bankruptcy.

There is plenty of information about bankruptcy on the internet. We have an article describing and outlining it on our website – http://www.beyourownlawyer.org/articles/bankruptcy.html

There are a lot of things to consider before you file a bankruptcy. First, do you need to file at all?

What is your real situation vis a vis creditors? 

How much do you owe how many creditors?

Does your state have wage garnishment?

What kind of homestead exemptions apply to the collection of any judgments?

What assets do you own? If you’re trying to keep a house, how much equity do you have?

Have you done some prudent asset protection to get things beyond the reach of creditors?

How long are judgments valid in your state? Can they be renewed?

Depending on the answers to these questions, you may be better off than you think without bothering to file a bankruptcy.

In a state with no wage garnishment, and generous homestead exemptions, you can often, with impunity, tell your creditors where to go. There just is not that much they can do to you.

Also, if you don’t have an overwhelming number of creditors, with a little help, you can probably work out the same kinds of deals as far as reducing principal amounts of debt, forgiving accrued interest and stretching payment over time that you could in a bankruptcy proceeding.

Such workouts often make sense to creditors looking at the prospect of receiving nothing as an alternative.

Another major area to take stock of are the bankruptcy exemptions available to you should you choose to go that route.

Bankruptcy law gives each state the right to determine whether state exemptions, federal exemptions, or both will be available to its residents upon a bankruptcy filing. 

Some of these exemptions are absurd. For example many states allow an exemption of $1,000 in a car. These statutes were written years ago, when $1,000 might actually get you a decent vehicle. Not so now. This means if you have a car worth $5,000 (with no lien) and you file a bankruptcy under Chapter 7, that car will be taken and sold – you will receive the first $1,000.

Likewise, household goods and furnishings. $1,000 exemption is common.  Let’s be real, you can’t furnish a single room in a hous for $1,000. Do you really want to see all of your possessions boxed up and sold if you file bankruptcy?

Finally understand that once filed, a Chapter 7 bankruptcy cannot simply be dismissed if you change your mind. Another brutal provision of Bankruptcy Reform. Once this process starts and gets under way, there is no good way for you to get out of it.

Don’t misunderstand.

Sometimes there just are no alternatives.

 Just be careful and make sure that you have thoroughly studied all of your options before you rush out and file a bankruptcy.

Some thoughts here. 

 Try to stay away from the “form fillers and filers” These guys are a lot like the TV lawyers in personal injury cases. http://www.beyourownlawyer.org/articles/personalinj.html

They advertise heavily. They deal in volume. They essentially fill out “canned” forms and file them in bulk, hoping to make a profit from volume after having lowered their fees to absurdly low levels.

The truth of the matter is that you can do for yourself a much better job than you will get out of the “fillers and filers”. Look at the services section on our website http://www.beyourownlawyer.org/services.html

and click the “bankruptcy” tab. You’ll find that the way the bankruptcy system is set up, unless your case is highly complicated or unusual, you can do just fine – better in fact – by representing yourself.

Bankruptcy Chapter 20 - Alive and Well!!

In his book ‘1984’ Orwell talks about the government doublespeak and how it manifests itself even in the naming of government agencies. He reflects that the Ministry of Love (Minilove) is actually the oppressive state secret police,  The Ministry of Knowledge, the propaganda outlet, etc.

The United States government often follows this trend for some reason in naming pieces of legislation, almost as if the intent was to display a cruel sense of ironic humor. Thus we have the Bank Secrecy Act which effectively outlawed Americans’ financial privacy, and germane to today’s blog, the BPACPA (Bankruptcy Abuse Prevention and Consumer Protection Act. This legislation, bitterly opposed by consumer groups and advocates for years was finally pushed through a republican administration in 2005. It effectively eviscerated bankruptcy protection for the average person, eliminating options, removing exemptions and creating more obstacles than any prior bankruptcy legislation in the history of the United States.

Of course big banks and big business loved it – they should. It was their creation.

Since the enactment of BPACPA, against all odds, the average guy has actually been able to eke out a few victories, and when it happens, it is gratifying. Last week the Fourth Circuit Court of Appeals gave us a gift!

In its decision in Davis and Moore (two bankruptcy cases appealed together)  the fourth circuit court of appeals (a circuit that so conservative that it gives new meaning to the term) joined other circuits in affirming that the Bankruptcy Code does in fact allow liens to be stripped out using what is affectionately called a Chapter 20 Bankruptcy.

This blog is not intended to be a treatise on bankruptcy law, so for now just accept that a Chapter 20 is the use of a Chapter 7 proceeding, followed by a Chapter 13 filing (7+13=20) to discharge unsecured debts, then protect property (such as your home) by resolving mortgage delinquencies over a the life of a bankruptcy plan.

The recent decision confirms that this is ok. What this does is provide an out for the person upside down in real estate debt, often with a second or even a third mortgage. Thanks to the real estate debacle (we won't go into that)  mortgages often far exceed the value of the property. This decision, which allows liens over and above the value of the property to be "stripped out"  lets people get back on track with their first mortgage.

The key is being able to “strip off”, that is to remove, the mortgage liens from the property that were associated with debt that exceeded the value of the property by using a combination of Bankruptcy proceedings. The Chapter 7 proceeding discharges you from personal liability on the debts of the junior mortgages. The Chapter 13 treats them as unsecured debt because there is not enough value in the collateral (your property).

 Before this, while bankruptcy proceeding got you a discharge from the debt – that is the creditor could not collect from you personally, the lien was still in place. Basically if it covered your home, there was no way for you ever to sell or refinance the house.

Other circuits have approved this process, but for the conservative fourth circuit to fall into line is a major victory of those of us who have fallen on hard time and need some help!!

Maybe there is a light at the end of the tunnel that isn’t a train!

If you'd like some more information on how we can help with this issue, take a look at our section on bankruptcy. 

Robert Murdoch

Be Your Own Lawyer

Be Your Own Lawyer Offers a Varied Menu

After the last post, I had several people email me with questions about what exactly Be Your Own Lawyer can or will do to help people represent themselves.

At first reading I’m thinking  … “Dude did you read the website at all?”

Then I thought about it and realized it was really a very good question. After all, we tell you that we can help, we tell you that we can show you how to do things, we tell you that we provide complete support. But it’s clear that not everyone understand what all that means.

I want to try to clear that up.

In the last post I pointed out what it takes to represent yourself – either in court or with regard to other legal matters. I also pointed out that Be Your Own Lawyer is here to help you by narrowing down the tremendous amount of information out there to a manageable volume.

So now let’s talk about how that really works, and what we actually do.

At the risk of getting things thrown at me, the answer is – short of providing you legal representation. which we cannot and will not do – it’s up to you. Be Your Own Lawyer will do what you want us to do to help you represent yourself.

No I’m not being evasive. The people we help run the whole range from “do it all for me” to “just show me and let me do it myself”.

Let’s face it, that’s the way it is across the board in life. There are those who want to do everything for themselves, down to changing the oil and fixing the brakes on their car. There are those who prefer to drop the car off at the garage and be called when everything that needs to be done is completed.

Neither one is good or bad – it’s just a reflection of how people approach life.

So in what we do, we see everything from the person that wants everything handed to them, down to addressing the envelope to send stuff to the other side, to the person that says “show me the rule book and the law that applies, then leave me alone – I want to do this myself”. We will provide help on either level!

When you represent yourself Be Your Own Lawyer will do the research on the law for you. That means you get the statutes, the cases and the rules, along with an explanation of what they mean.

We’ll warn you about things that have to be done. If an answer to a complaint is looming, we’ll make sure that you understand what to do and how important it is that it get done.

If you want us to go further, and prepare papers for you, we can do that. Or, you can prepare your own and ask us to review them for you.

And it's all up to you. You tell us how much you want us to do.

It’s sort of like a buffet. Take what you want and leave the rest.

And that is one of the greatest things about how we help you represent yourself. Were we to be your attorney and enter an appearance, there would be things that we would have to do, whether you liked it or not. Because of procedures and rules you would lose a lot of control over how your stuff is handled. That’s just the way it is – the courts and judges where a party has an attorney, deal with the attorney  not the person who matters – You!

Be Your Own Lawyer takes the extra layer out of the equation – you’re in charge and you know what’s going on.

Is this for everyone?

Of course not!

Just as there are cases where you should never try to represent yourself, there are those people that will not feel comfortable on their own. 

It’s not good and it’s not bad – it just is! 

Some people like to ride in the boat – others prefer to drive it!! Most of the people that ask us to help them represent themselves will be driving the boat!!

What does it take to represent yourself in court?

Can you really do it all by yourself?

The answer to the first question is that it takes a lot of research and information. 

The answer to the second question is yes, but do you really want to reinvent the wheel? It's a lot easier if you let someone help you!

Walking into a courtroom by yourself requires that you know the law as well as the rules and procedures. All of them! If you don’t know them, there is no way you will make it.

Compare it to walking onto a football field to play. If all you know is that your job is to get the football to the other end of the field, without knowing how, what is ok and what is not, you’re not going to get very far.

So it is in a courtroom. No one there is going to draw you a road map, or hand you a checklist of what to do. They won’t even hand you a set of rules.

So what do you need to know to represent yourself? A lot!

For an idea of what you will have to research, visit our site. Here are links to some free information that will give you a good start toward researching stuff yourself.

Want to know why knowing court rules are important? Click here.

Want to know where to look up the law on an issue? Click here.

Want to know if you can bring a lawsuit against someone?  Click here

Want to know what to do with legal papers that you’ve received? Click here

Ok, you get the point.

There is a lot of stuff to know and look up. You can do it yourself or you can let us at Be Your Own Lawyer help.

That’s one of the things we do at Be Your Own Lawyer. We gather information, knowledge and legal advice from a lot of different places and put it at your fingertips. We make sure you get what you need, not overwhelming you with junk that doesn’t affect or pertain to you.

To be honest, everything that we can show you and provide you with is available without our help. That’s right. We don’t even mind sharing this with you. If you’re willing to spend enough time, and do enough research, you don’t need Be Your Own Lawyer, or anyone else. In this day and age, EVERYTHING you need to know about representing yourself is available on the internet. It may not be free, and it’s definitely not in one place, but it’s there. All you have to do is look for it. And of course you have to make sure that what you find is in fact everything you need. That’s a little trickier.

We think representing yourself in legal matters in or out of court is great! Doing things yourself is pretty much and American tradition. But at the same time, there’s no reason to reinvent the wheel and go all the way back to square one.

Unless you’ve had some practice, doing all the research needed to prepare yourself to go to court on your own will take hundreds of hours. If you’re one of those fortunate people that has plenty of extra time, by all means, go for it!!

But if you’d rather not spend a huge chunk of your life re-doing something that’s already been done, and want some help in putting it all together, take a look at our website.

You’ll see that Be Your Own Lawyer can take all of the information you need for a specific matter and put it at your fingertips. We charge what we think is a modest amount for our time and expertise.  Take a glance at what we can do for you and what we charge.

Is it OK to Represent Yourself in Court?

Last month I talked about the issue in terms of “Can you Represent Yourself?”  In response, I got some response in the form of questions, that leaned more toward the question of “Is OK to represent myself?”

It was actually a little disturbing to read some of the questions, because they suggested that people were intimidated by the judicial and legal system, and somehow felt that by venturing into courthouses, they were somehow trespassing on sacred ground.

I guess, upon reflection, that it would be easy to get such a feeling. I never gave it much thought. After thirty-five years of wandering in and out of courthouses and courtrooms, it just feels like that’s where everybody was welcomed. I can see that for the person not familiar, it could be intimidating. After all there are all these huge, impressive buildings. Stone-faced and sometimes outright rude security people greet you.

No that’s not the right term. They confront you. A sad testimonial to what our society has become – but that’s another matter for a different time and place.

Back to the courthouse.  Once you get past security you have to deal with clerks and officials, usually behind glassed in enclosures with a tiny slot to speak through, or even a microphone.

Then there are those self-important lawyers running around as though the clock was constantly ticking down to zero. They certainly make you feel that they own the place and anyone else is superfluous. 

Yeah, I suppose that could all be a little intimidating. Ok, now wipe that whole idea out of your mind!

Those big, huge buildings? They belong to YOU and everybody else. You have as much right to be there and conduct your business as any lawyer all dressed up and bustling about.

All those clerks and officials being rude and making you feel like you’re imposing?  Guess what? YOU and everybody else pay their salaries!! They work for you. They may from time to time need to be reminded of that, but it’s easy to do in a courteous but firm way. As for the glass enclosures – well even after thirty-five years of lawyering I have never figured out how that evolved. When I started practicing law, clerk’s office had long counters – you stood on one side, the staff on the other. If you had a question, or had to conduct business, it was easy and personable. Now it seems as though we’re all possessed of some communicable disease and have to be kept at bay. Nothing we can do about that but to remember that glass or not, these people work for us!!

Those lawyers running around looking like they own the place?  They don’t. They have to file the same papers, and go through the same steps that you do. Oh, they may do it more often. They may be familiar with the very clerk that has been rude to you. But that’s just because they’re there every day, and that’s their problem, not yours.

So there is no need to feel out of place. Those courthouses are yours and you have the same right to conduct business there as anyone else.

Do you have to know what to so. Sure. Laws, rules and regulations are there to make sure, among other things that things function smoothly and as relatively efficiently.

But as long as you do your homework, and are reasonably prepared, there is never any reason for you to feel that you are out of place, unwelcome, or somehow going where you should not be. If anyone in those big buildings suggests otherwise, feel free to let them know the definition of civil servant!

What Does it Cost to Be Your Own Lawyer?

A lot of the people that contact us want to know what it will cost for Be Your Own Lawyer to do work, or how much they can expect to spend until they have finished their case.

The answer is that usually, we just don’t know. We’re not dodging the question. If we knew for sure how much time we will need to spend answering questions or doing research, we would be happy to say, “for doing this job we will charge “X” dollars. The problem is that we don’t ever know upfront how much you will ask us to do.

Even though we can’t nail it down specifically, we can give a ballpark idea on some cases, and maybe that will help.We can also promise you that it will bea much, much less than hiring a lawyer to do things you can do for yourself.

First, we have set as a target, in order to figure things out, an hourly rate of $85. It’s not etched in stone, but it’s a good ballpark. How did we arrive at that? Well we tried to take a lot of things into consideration and come up with something that would be attractive and fair to you, and at the same time compensate us for our time, work and experience.

So what went into coming up with that figure?

First, we admit readily that our overhead is real low! We don’t pay rent, or big phone bills. We don’t have a lot of secretaries and paralegals running around.We don't spend a lot on office furniture or supplies. We save a lot of money - we pass those savings on to you.

Next we looked at what attorneys were charging for the kinds of services we can provide. We think that's a relevant number because that's what you're looking at paying if you don't handle things yourself with our help. Typically hourly rates we found were in the range of $250 on the low end to $500 on the high end.

Finally we tried to take into consideration what we would need to be paid in order to make doing work more attractive than sitting on the beach drinking beer. We’re human too!!!

Tossed all that into the pot and decided that if we got about $85 an hour for our time, its fair to everybody. It’s an amount that we can live with on our end. You get to save a lot - like  75%  to 80% of what it would cost you to go out and hire a lawyer. Seemed like a fair number all the way around!

So if we quote you a fee, it’s not just a number picked out of the air. It’s based on how much time we think something will take, based on the $75 per hour.

Having said that, a couple of points. There is a lot that we don’t charge anything for at all.

Got a quick question? Send it on – we don’t mind trying to answer. Email is pretty cheap these days….

We never charge you anything to look at a case or an issue and to let you know if it’s something we can help you with.

We’ve provided a library of articles on our website at no cost, that will provide a lot of information that we hope will be of help to you.

So all things considered, we think we’re providing a pretty good service at a very reasonable cost!!

When You Shouldn’t Try to Represent Yourself

In the last post I talked about the general question of whether or not you should consider being your own lawyer – whether you could really represent yourself in court or otherwise. In that post I referred to the fact that there were some cases where is was not appropriate.

I’d like to talk a little more about that today.

To borrow from what is usually a stupid analogy, but in a few cases can have merit, “would you perform surgery on yourself?” Of course not and there are some cases where you clearly need the services of an attorney. We actually go into detail, beyond the scope of this blog on that very question on our website – here is the link to that specific page: http://www.beyourownlawyer.org/sub-page/11/should-you-represent-yourself-.html

Let’s look at some. Examples of cases better handled by lawyers:

Criminal cases that could land you in jail, or with a serious criminal record. Makes sense! Losing a case involving some money is one thing. Losing a case and spending years in jail with your life on the scrapheap – a little different.

Juvenile Justice Case. Same thing applied to your child. The potentially devastating results to a child’s entire life from getting into these squalid systems make it imperative that an attorney, knowledgeable in these matters be retained as early in the proceedings as possible.

Complex Civil Case. Some case are just so complicated in terms of the numbers of witnesses and documents that you could never really hope to keep up. Small firm and solo practice lawyers even avoid these as being too demanding of resources.

There are other cases that are just not suited to being handled without an attorney. At Be Your Own Lawyer while we suggest that with help you can handle most legal matters on your own, we’re at the same time realistic. One of the things we offer, at no cost to you, is to take a look at a case and tell you upfront if its something that you’d be better of hiring and attorney for.

Can You Represent Yourself?

The big question people ask is if it really is possible to represent yourself in legal matters.

Of course it is!!

Does that mean you can be your own lawyer in every case? Just as emphatically, of course not. You would not want to try being your own lawyer if you were on trial for a criminal matter. If you tried to represent yourself in a complex civil matter involving different parties, thousands of pages of documents and dozens of witnesses, you'd get crushed.

But the reality is that the average person doesn’t have those kinds of issues. What they have are day to day legal matters such as setting up businesses, getting information and resources on the best ways to do things, and dealing with litigation and court cases that are fairly straightforward.

The legal profession in America has gone to great lengths to protect itself in every way. They have to. There are so many lawyers in the United Sates that competing with each other is bad enough – competing with the concept that people can actually do things for themselves is unimaginable!!

With rules limiting the providing of virtually any legal assistance to licensed attorneys (rules made by lawyers for lawyers – surprised surprise!!!) the legal profession has created a virtual monopoly, which they jealously and fervently guard. We’ll be talking more about that in future blogs.

Bottom line is that the legal profession has gone to great lengths to convince the public that it is impossible for anyone to successfully represent themselves. They often do this with witty little analogies.

One that we like is “would you try to perform surgery on yourself?” A response to that kind of comment should be simply - how incredibly stupid!

We freely tell everyone that no, you should not represent yourself in every kind of case, and so no, to use the analogy, you should not be performing surgery on yourself. But there’s no reason you can’t go down to the drugstore and get some cold medicine without first seeing a doctor.

So no, you can’t represent yourself in every conceivable case. If you’re arrested and looking at criminal charges  get a lawyer! If your child is in trouble and embroiled in the juvenile justice system – get a lawyer!

But if you’re trying to deal with the day to day legal issues that we all face from time to time, at least take the time to talk with us at Be Your Own Lawyer. You really will be surprised to learn how much you can do for yourself!!!

Welcome to Be Your Own Lawyer Bog!

What we hope here is to provide you with some thoughts and insights on legal matters in general, talk about the pros and cons of representing yourself in legal matters, and because life is drab without a little fun, take a few pokes now and then at the legal system as it exists in America today.

Since this is the first post to the blog, let us introduce ourselves.

We’re three semi-retired lawyers from different parts of the country, who have found ourselves in Central and South America. We say semi-retired because we failed miserably at retirement! None of us are in active practice any longer, but all of enjoy the law and enjoy sharing collective hundred years or so of legal experience. Our website is www.beyourownlawyer.org. What we offer is full legal research and support for people that want to handle their own legal matters. Our services are offered on sort of a menu basis – everything from answering simple questions to helping someone put together a complete case for trial in court.

Before you ask, no we don’t do it for free. Social security doesn’t go as far as it used to, we like a little more varied diet than rice and beans, and even down here, cervaza  is not as cheap as it used to be. What we do promise though is that what we charge will be a fraction of what you would pay to get a lawyer to do the same things that we can help you do.

One thing we think it’s important for people to understand is that even though are all lawyers, we will not be your lawyers. You’ll see this mentioned on our website, and we’ll be repeating it in future posts here. Another thing that you need to understand is that we in all probability are not licensed to practice law in your neighborhood. So even if we wanted to, we couldn’t represent you. Throughout everything you read on our website, in our publications and here, please don’t lose fact of this. We like to think we’re not all that stupid, and we’ve sure been around the block a few times, but we’re not practicing or as a practical matter, licensed attorneys.