Lenders Should Avail themselves of Insulation From Liability

Lenders, whether private or public, making repossession would be well advised to petition the court for a rent receiver in the event the lender seeks to re-enter and possess the property prior to foreclosure sale. A lender seeking to obtain rental income from a property, or simple protect the property from further disrepair through occupancy, becomes a mortgagee in possession and subject to full liability in the event a lawsuit arises as a result anyone suffering damages through the use, occupancy or permission to enter the property. A court appointed rent receiver acts as agent on behalf of the lender without subjecting the lender to liability for personal injury victims, building code violations and the like. The rent receiver is also insulated from personal liability and only subject to suit in their capacity as rent receiver. The extent of damages obtainable from either the lender or rent receiver is the sum available to the rent receiver, or lender, through collection of rental income or other income received from operation of the property. If you are foreclosing on a property or facing foreclosure, you should seek experienced legal counsel immediately in order to protect your rights. For more information on foreclosure, bankruptcy or other consumer debt related matters in New Jersey visit TheNJBankruptcyAttorney.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Overhaul to Student Loan Collections Considered

Congress will review the idea of implementing the system used in England for collection of student loans. The current system in the United States often involves debt collection agencies hounding the unemployed without offering mention of available payment deferral programs. The system Congress is pondering will be the use of automatic withdrawals from borrower's paychecks based on their earnings. The withholding would operate like tax withholding or the withholding of child support and alimony by employers when directed by court order. The withholding amount would be at a maximum of 15% of borrower's disposable income after an allowance for living expenses. Proponents hope this will begin to decrease the $1 trillion student loan debt outstanding and eliminate the use of private debt collectors which add hefty fees to the loan balances leaving those responsible for student loan repayment in deeper debt. If you are behind in student loans or other debt you should seek experienced legal counsel immediately in order to protect your rights. For more information on foreclosure, bankruptcy or other consumer debt related matters in New Jersey visit TheNJBankruptcyAttorney.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Retirement Plans Exempt in Bankruptcy

Annuities and other qualified retirement plans are exempt in bankruptcy in order to permit debtor the opportunity to be self-supporting upon retirement rather than relying on government programs for support. The key component to keeping the asset is whether the plan is a qualified retirement plan. A bankruptcy trustee may object to exemptions but only upon providing sufficient evidence rebutting the presumption of validity of the exemption. Section 522(d)(10)(E) of the U.S. Bankruptcy Code sets forth the requirements for the plan as follows: (1) debtor's right to receive payment is on account of age, and (2) the amount to be exempted is reasonably necessary for the debtor's support. If these requirements are met, there is a presumption of validity and the debtor will be able to retain the asset. If you are considering bankruptcy, you should consult an experienced attorney immediately in order to protect your rights. For more information on foreclosure, bankruptcy or other consumer debt related matters in New Jersey visit TheNJBankruptcyAttorney.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Bankruptcy Stay Has Limited Term

Although bankruptcy entitles the filer to an automatic stay, the term of the stay is limited. In the event a debtor's case is dismissed by the bankruptcy court the automatic stay is lifted and the property is once again subject to foreclosure. In the event an appeal of the denial is filed, the stay may be extended during the term of the appeal but only in the event the debtor can demonstrate a likelihood of success on appeal. If you are facing foreclosure, considering bankruptcy or an appeal in a bankruptcy matter, you should seek experienced legal counsel immediately in order to protect your rights. For more information on foreclosure, bankruptcy or other consumer debt related matters in New Jersey visit TheNJBankruptcyAttorney.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Credit Card Companies Must Submit Specific Proofs To Obtain a Judgment Against You in NJ

Capital One Bank, N.A. filed a complaint in the Essex County Superior Court against Palomino, the debtor, demanding $938.81 due from purchases made using her Capital One Visa card. The debtor's answer to the complaint was simply that she did not owe the money as she never had a Visa account. The trial judge granted summary judgment to Capital One Bank. The New Jersey Appellate Court restated the proof required to obtain a judgment on a revolving credit card debt. According to the prior case of L.V.N.V. Funding, LLC v Colvell, in a collections suit on a revolving credit card account, the creditor must set forth (1) the previous balance; (2) identify all transactions and credits; (3) set forth the corresponding interest rates; (4) set forth the balance on which the charge is computed; (5) set forth any other charges; (6) list the closing date of the billing cycle; and (7) provide the new credit account balance. Additionally, these forms of proof must meet federal requirements relating to credit card billing statements under 15 U.S.C. § 1637(b). If you are facing debt collections, you should consult an experienced consumer debt attorney immediately in order to protect your rights. For more information on debt collections, consumer fraud, foreclosure, bankruptcy or other consumer debt related matters in New Jersey visit TheNJBankruptcyAttorney. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Consumer Fraud Pleading Requirements

A complaint in Consumer Fraud must set forth claims upon which relief can be granted. Specific requirements include: (1) an assertion of intent to defraud, (2) there were misrepresentations made to the buyer which resulted in financial gain to the seller, and (3) the allegations of fraud must be made with particularity. Failure to meet the requirements will result in a dismissal of the Complaint. In a recent case, homeowners sued a contractor under the New Jersey Consumer Fraud Act (NJCFA) for damages in the amount of $250,000 for monies paid plus the cost of removing the substandard work and were awarded treble damages in the amount of $1,228,603.70. The contractor then filed for bankruptcy and the homeowners filed a complaint in the United States Bankruptcy Court seeking a judgment of nondischargability under Section 523(a)(2)(A) of the United States Bankruptcy Code. The homeowner's Complaint was dismissed for lack of proper pleadings and the contractor was able to obtain discharge of the $1,228,603.70 Judgment. If you are attempting to avoid a debt or someone is attempting to avoid a debt they owe you or you are considering filing a Complaint for Consumer Fraud or facing a Consumer Fraud Complaint, you should consult an experienced attorney immediately in order to protect your rights. For more information on consumer fraud, foreclosure, bankruptcy or other consumer debt related matters in New Jersey visit TheNJBankruptcyAttorney. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Failure to Pay According to Plan Does Not Relieve Debtor From Responsibility in NJ

In a New Jersey Bankruptcy, the Debtors reorganized under a plan but failed to pay fees approved as part of the plan. Following the effective date of the approved plan, creditors discovered some cash budgeted for fees under the plan had not been paid. The district Court held that the fees are an administrative expense and necessary condition of the confirmation of the plan. The reorganized debtors could not be excused from payment of the obligation simply because the discharge had occurred. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are a debtor or creditor in a bankruptcy matter, you should consult an experienced bankruptcy attorney immediately in order to protect your rights. For more information on foreclosure, bankruptcy or other consumer debt related matters in New Jersey visit TheNJBankruptcyAttorney.com.