July 4, 2014

Video: Overview of 5 options when sued by a debt collector in Alabama

Discover the 5 options that you have when sued by a debt collector (such as Midland Funding, Portfolio Recovery, etc) in Alabama.

Here are the five options:

First, file bankruptcy.

Second, fight the lawsuit on your own.

Third, settle the case on your own.

Fourth, hire a lawyer to fight the case for you.

Finally, hire a lawyer to settle the case for you.

We'll have follow up videos and posts about each of these options but we hope this overview has been helpful.

Call us anytime at 205-879-2447 or contact us through our website and let us know how we can help you.

John Watts

June 2, 2014

My odd office experience with Bank of America's loss mitigation

As you probably know, my law firm represents many Alabama consumer who sue mortgage companies such as Bank of America. Well, today I received a letter from Bank of America.

I opened it up and it was addressed to me and said that BoA recognized that I represented my client and they wanted to send the letter to me.

I was puzzled as there was no "consumer" or "homeowner" name listed.

So who was this person I supposedly represented?

While I occasionally represent families outside of litigation when dealing with their mortgage company (primarily using the new RESPA rules to help them), most of my clients involving mortgages are in federal court.

I didn't recognize the street address.

This was all I had as the geniuses at BoA didn't give me a name.

So I had my secretary call the person and number on the letter to find out who our client was so we could respond to the letter if we needed to respond.

BoA said we had to give them the client name.

"We don't know the name as you didn't give it to us."

BoA says, "Well, we have to know the name to look up the person to see if we are allowed to talk to you."

My secretary says, "You sent us the letter so obviously you think we represent this person so tell us who it is."

BoA refused.

Then it wanted to know what kind of business we are in.

"A lawfirm."

Well, who is this "John Watts" guy?

"He's a partner in the firm."

Then they wanted to know what kind of law we practice. A long pause and then the representative says "We sent you the letter in error -- ignore it."

Quite reasonably my secretary says "Please send us a letter that we can ignore the previous one (it had deadlines in it)" which caused the BoA folks to go into a tizzy.

They thought this was outrageous.

I still don't know who the letter was for but this was simply a small illustration of the insanity of dealing with these mortgage companies. This is why we have finally changed our procedure and have agreed to represent clients before a lawsuit with their mortgage company -- to help them write letters, understand (if possible!) what the mortgage company means with its letters and requests for more documents, and then ultimately get the client a loan modification and see if the mortgage company has violated the law and needs to be sued in federal court.

So for whatever it is worth, these mortgage companies treat everyone bad and with a lack of any skill. Doesn't make you feel better but maybe at least you'll have some comfort in knowing it is not just you.

If you are in Alabama and having issues with Bank of America or any other mortgage company, we will be glad to chat with you about some options you may have -- there is normally hope to save your home if you act quickly. You can reach us at 205-879-2447 or you can fill out our contact us form on our website.

May 31, 2014

Decision on FDCPA: Offer of Judgment Held Not To Kick Case Out Of Federal Court

Debt collectors love to use "Offers of Judgment" to try to get rid of cases and the new strategy is to argue that "there's no way you can prove actual damages" or "you didn't properly plead actual damages" so your case gets thrown out after a $1,001 offer of judgment.

It is a silly strategy but some judges have fallen for this.

The Fifth Circuit Court of Appeals rejected this and sent the case back to the trial court (district court).

Here is the text of the opinion Payne v. Progressive Financial (5th Circuit April 7, 2014) so you can read it for yourself (or you can click here to see it on Google Scholar).

Before: SMITH, DeMOSS, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge.

Nicole Payne appeals the district court's dismissal of her suit against Progressive Financial Services, Inc. ("Progressive"). The court dismissed the suit for lack of subject-matter jurisdiction on the ground that Progressive's unaccepted offer of judgment rendered Payne's claims moot. For the reasons below, we reverse and remand for proceedings consistent with this opinion.

I.

Payne filed this suit against Progressive for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), the Texas Debt Collection Practices Act, and the Texas Deceptive Trade Practices Act. Payne alleged that Progressive made numerous harassing phone calls, called her at inconvenient times, and did not properly identify itself as a debt collector. On her FDCPA claims, Payne requested statutory damages of $1,000, actual damages, attorneys' fees, and costs.

After filing an answer, Progressive served Payne with a Federal Rule of Civil Procedure 68 offer of judgment. Progressive offered entry of judgment against itself in the amount of $1,001 for damages of any kind, plus attorneys' fees and costs incurred as of the date of the offer and to be determined by agreement or court order. The offer also stated that it would expire fourteen days after service. Payne did not respond to the offer.

Progressive moved for dismissal under Rules 12(b)(6) and 12(b)(1). The district court denied Progressive's 12(b)(6) challenge on the ground that Progressive waived the defense of failure to state a claim by failing to raise the defense before filing or in its answer. The district court, however, granted Progressive's 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction. The court found that Progressive's unaccepted offer rendered Payne's FDCPA claims moot because Progressive's offer equaled or exceeded the amount that Payne was entitled to recover on her FDCPA claims. The court reasoned that Payne was not entitled to actual damages because she failed to plead sufficient facts to support a claim for actual damages in her complaint. After dismissing Payne's federal claims as moot, the court then declined to exercise supplemental jurisdiction over her state-law claims and dismissed the case without prejudice. Payne timely appealed.

The issue on appeal is whether Progressive's unaccepted Rule 68 offer of judgment rendered Payne's FDCPA claims moot, requiring dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1). We review a grant of a motion to dismiss for lack of subject-matter jurisdiction de novo, applying the same standard as the district court. ANR Pipeline Co. v. La. Tax Comm'n, 646 F.3d 940, 946 (5th Cir. 2011).

II.

Article III of the United States Constitution limits the jurisdiction of federal courts to actual cases and controversies. U.S. Const. art. III, § 2, cl. 1. This clause requires that parties seeking to invoke federal-court jurisdiction demonstrate that they have a "legally cognizable interest" or "personal stake" in the outcome of the case. Genesis Healthcare Corp. v. Symczyk, ___ U.S. ___, 133 S. Ct. 1523, 1528 (2013). A live controversy must exist at every stage of the litigation. Id. If an intervening circumstance deprives a plaintiff of a personal stake in the outcome of the action or makes it "impossible for the court to grant any effectual relief whatever to the prevailing party," the case must be dismissed as moot. Chafin v. Chafin, ___ U.S. ___, 133 S. Ct. 1017, 1023 (2013) (internal quotation marks and citation omitted).

An incomplete offer of judgment—that is, one that does not offer to meet the plaintiff's full demand for relief—does not render the plaintiff's claims moot. See Hrivnak v. NCO Portfolio Mgmt., Inc., 719 F.3d 564, 567-70 (6th Cir. 2013); Zinni v. ER Solutions, Inc., 692 F.3d 1162, 1167-68 (11th Cir. 2012); Gates v. Towery, 430 F.3d 429, 431 (7th Cir. 2005). When a defendant does not offer the full relief requested, the plaintiff maintains a personal stake in the outcome of the action, the court is capable of granting effectual relief outside the terms of the offer, and a live controversy remains. See Hrivnak, 719 F.3d at 567-68; Zinni, 692 F.3d at 1167-68.

Under the FDCPA, an individual claimant is eligible to recover actual damages pursuant to 15 U.S.C. § 1692k(a)(1). Payne requested actual damages in five separate paragraphs of her complaint. Progressive's Rule 68 offer of judgment did not offer to meet Payne's full demand for relief because it did not include actual damages. As a result, Progressive's offer left a live controversy for the court to resolve, Payne maintained a personal stake in the outcome of the action, and the offer did not render Payne's FDCPA claims moot.[1]

Progressive contends, and the district court agreed, that the offer of judgment mooted Payne's FDCPA claims because it offered all relief to which Payne was entitled on her claims. Progressive reasons that Payne is not entitled to actual damages because she did not plead sufficient facts to support her claim for actual damages in her complaint.

This analysis confuses two separate inquiries: (1) the merits, whether Payne sufficiently stated a claim; and (2) jurisdiction, whether the court has the power to reach the merits of Payne's claim. As the Supreme Court has made clear, these are distinct analyses.

Jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which [the plaintiff] could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for dismissal for want of jurisdiction.
Bell v. Hood, 327 U.S. 678, 682 (1946); see also Chafin, 133 S. Ct. at 1024 ("[The defendant's] argument confuses mootness with the merits. . . . [A plaintiff's] prospects of success are [] not pertinent to the mootness inquiry."); Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 642-43 (2008) ("It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction." (quoting Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 89 (1998))); Eubanks v. McCotter, 802 F.2d 790, 793 (5th Cir. 1986) ("If federal jurisdiction turned on the success of a plaintiff's federal cause of action, no such case could ever be dismissed on the merits.").

Whether Payne's allegations state a plausible claim for actual damages is an inquiry different from whether a federal court has jurisdiction to hear the case. To render a decision on whether Payne is entitled to a particular type of relief—in this case actual damages—is to decide the merits of the case. A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction is not the proper mechanism to challenge the merits of Payne's claims.[2]

III.

Because Progressive's incomplete offer of judgment did not render Payne's FDCPA claims moot, we REVERSE the district court's order of dismissal and REMAND the case for proceedings consistent with this opinion.

[1] Because we find Progressive's offer incomplete, we need not decide whether a complete offer of judgment would have rendered Payne's claims moot. Compare Weiss v. Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004) ("An offer of complete relief will generally moot the plaintiff's claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation."), and Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 371 (4th Cir. 2012) (same), with Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d 948, 950 (9th Cir. 2013) ("[A]n unaccepted Rule 68 offer that would fully satisfy a plaintiff's claim is insufficient to render the claim moot."). See also Genesis, 133 S. Ct. at 1528-29 ("While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff's claim is sufficient to render the claim moot, we do not reach this question."). We also need not address Payne's alternative argument that her FDCPA claims are not moot because Progressive did not offer attorneys' fees and costs incurred after the date of the offer.

[2] The federal rules offer defendants a number of alternatives to challenge the sufficiency of a plaintiff's case prior to trial, including a Rule 12(b)(6) motion to dismiss for failure to state a claim, a Rule 12(c) motion for judgment on the pleadings, and a Rule 56 motion for summary judgment. Progressive could have, and still can, pursue merits-based challenges. Progressive can also move for costs under Rule 68(d) if Payne ultimately obtains a judgment for less than Progressive's offer. What Progressive cannot do is what it attempts to do here: dispose of all of Payne's claims by offering to settle only those claims it deems legitimate or plausible.

May 24, 2014

Consumer Power -- The Difference in "Must" vs. "Should"

I hope this has been a great week for you and you enjoy the Memorial Day weekend and also keep in mind what the day means. For a lot of families in this country, someone served in our defense and many gave their health or lives.

I was talking with someone the other day about things that must be done. We started talking about the difference in "shoulds" and "musts" and I thought it might be helpful to you.

I have been blessed with relatively good health and I've very thankful to God for that.

Several years ago, however, I was eating a sandwhich and got choked. I have never truly experienced that before -- not talking about a drink going "down the wrong way" but truly being choked.

It is a scary and fascinating experience to realize you can't breathe.

Everything on your "to do" list fades away immediately.

All the minor annoyances, imagined (or even real) slights from others, the times we think someone has mis-treated us, our disappointments, etc.

All gone.

Singular focus is on "How do I breathe?"

You see, at that moment something I took for granted (breathing) went from un-noticed to an absolute MUST.

Not a should.

I didn't think "I should take a breath. I bet that would be good."
Nope -- it was "I must breathe."

No multi tasking -- it was one task -- one thing that had to be done.

Well, as you might imagine since I'm typing this to you, I did get that breath.

:)

I did not enjoy the experience in the least. But I did learn from it the difference in a should and a must.

If something is a "must," it gets done. Because it must get done.

If something is a "should," well, it might get done and it might not. After all it is only a should....

Can I recommend that you look at your life and decide what are the "musts" in your life that must be done?

I'm doing that myself and it is eye opening.

When we have that list, then we must plan our days, our weeks, our lives around the "musts" in our lives.

I would love to hear from you as to any insights or clarity you get from doing this and I appreciate you reading this.

Have a great rest of your week and remember the meaning of Memorial Day on Monday.


John

John Watts
Watts & Herring, LLC
205-879-2447


PS -- here are some recent articles and blog posts that have created -- check any out that interest you and feel free to comment or share by twitter or facebook, etc. Thanks!


Loan Modification -- 4 critical steps to take to achieve success in a loan modification

Collection Lawsuit -- What does it mean to go to trial when I've been sued by a debt collector?

VA Pension (Aid and Attendance) -- Frequently asked questions on this amazing benefit for veterans and widows of veterans

Car Wreck -- What does your "Medical Payment" portion of your care insurance do for you?

Foreclosure -- Should I stay and fight or leave my home?

May 23, 2014

Consumer Power -- Lion, Donkey and Fox Story

I hope you are having a great week -- as we head towards Memorial Day.

I enjoy hearing stories -- if you do also then you might enjoy this one that teaches us to use the experiences of others to learn lessons. And it is mildy funny also. :)

The Lion, Donkey and Fox

A lion, donkey and fox were out hunting rabbits one day. At the end of the day, they had a big pile of rabbits. [By the way -- I have no idea why a donkey would hunt rabbits -- its just part of the story....]

The lion says to the donkey, "You divide up the rabbits fairly between the three of us."

The donkey divides the rabbits into three equal piles while the lion walks away.

The lion comes back to where the donkey and fox and the three piles of rabbits were located.

Looks at the three piles.

Looks at the donkey.

Kills the donkey.

Looks at the fox and says, "You divide up the rabbits fairly between the two of us." Then the lion leaves.

The fox makes one huge pile of rabbits and takes one scrawny rabbit for himself.

The lion comes back.

Looks at the two piles.

Looks at the fox and says, "How did you get so good at math?"

The fox says, "The donkey taught me."

:)

When possible, better to use the experiences of someone else rather than having to experience the pain ourselves.....

Speaking of experience, I wrote a long (sorry --- got on soapbox) article about choosing an attorney and the dirty secret that most attorneys don't want clients to know about. At the end I share a personal story about my family hiring a lawyer. If you are thinking about hiring a lawyer or know someone who is, you might enjoy this "candid" look "behind the curtain" -- lawyers don't want me to say what I said.

It will be worth your time to read it I think....

Have a great rest of your week!

John

John Watts
Watts & Herring, LLC
205-879-2447

Alabama Consumer website
Alabama Elder Lawyer website
Birmingham Injury Blog

May 19, 2014

"What is a deed in lieu of an Alabama foreclosure?" A story of Bob and Jenny and Wells Fargo.

If you're facing a foreclosure in Alabama, one option is to do what is called a deed in lieu of a foreclosure. In essence, this means you give the deed to the mortgage company instead of the mortgage company taking the deed through a foreclosure.

Here's an example to illustrate this -- Bob and Jenny and Wells Fargo.
Bob and Jenny have a house in Birmingham and they owe $300,000 on their mortgage to Wells Fargo. They have encountered financial difficulties and have not been able to get a loan modification and they are now facing a foreclosure.

Instead of allowing the foreclosure to occur, Bob and Jenny could work out a deal with Wells Fargo where they give the deed to Wells Fargo and Wells Fargo does not foreclose. Normally the way a company such as Wells Fargo obtains the deed is by conducting a foreclosure sale on the courthouse steps and then a foreclosure deed is filed with probate court.

A foreclosure deed is where Bob and Jenny deed the house over to the new purchaser of the home. Almost always this will be the mortgage company such as Wells Fargo. (Note: Bob and Jenny don't literally sign the deed but that is done for them pursuant to the powers granted in the mortgage document.]

So the question is why would Wells Fargo do this?
There is some expense and time involved in foreclosing a house. A mortgage company may decide that it is easier and quicker to simply accept the deed from Bob and Jenny rather than hiring a foreclosure law firm, advertising the foreclosure, and then potentially suing Bob and Jenny to get them out of the house (what is known as an "ejectment" case).

Okay that makes sense but why would Bob and Jenny agreed to do this rather than forcing Wells Fargo to go to a foreclosure?
The advantage for the homeowners is that there is no foreclosure.

This can be important both from a credit reporting standpoint as well as when applying for a future loan -- being able to honestly answer the question on the loan application about "have you ever been foreclosed."

What are the important considerations for Bob and Jenny when deciding on whether to accept a deed in lieu of foreclosure?
**Will Wells Fargo say Bob and Jenny owe any money after the deed in lieu?

**What will Wells Fargo put on their credit reports?

**Do Bob and Jenny have a lawsuit they can file against Wells Fargo (often Wells Fargo will violate the law in the loan modification process)? Is it better to sue and stay or walk way with the deed in lieu?

Final thoughts
A deed in lieu is not a perfect solution. But sometimes it is the best solution available.

Normally to get one, you have to show the mortgage company that you tried to sell your house, tried to do a short sale, and none of those worked.

Finally, a deed in lieu, a short sale, a loan modification, etc. are all part of what is known as "Loss Mitigation" which is the process of figuring out how to avoid a foreclosure on your home. This process is still difficult but new rules (RESPA) that bind these mortgage companies went into effect in January 2014 and can be very helpful to you.

If you live in Alabama and you are facing a foreclosure or considering a deed in lieu and you want to meet with us in person (or by phone/video), call us at 205-879-2447 so we can see if it makes sense to meet or you can contact us online through our website AlabamaConsumer.com.

Best wishes!

John Watts

May 10, 2014

"What is a short sale if I am facing a foreclosure in Alabama?"

If you are facing a foreclosure in Alabama, one option to avoid a foreclosure is to do a "short sale" which is where you sell your home for less than what you owe the mortgage company.


Why is it called a short sale?
Because you are looking to sell your house for less than what you owe.

Let's say that you owe $300,000 on your home.

If you sell it for $300,000 or more, than this is simply a normal sale of a house.

You do not need any approval from your mortgage company to do this because your mortgage company is going to be paid off when you close on the loan.

But let's say that you can only sell your house for $250,000. This means that you are $50,000 "short" of what you actually owe.

If your mortgage company approves of this, then you can sell your house even though it is a "short sale."


Why would my mortgage company agree to a short sale?
There are several reasons why.

First, it may be as much money or more money than if there is a foreclosure sale on your house.

Second, the mortgage company does not have to spend any money going through the process of foreclosure, which includes hiring a law firm and potentially having to file suit after the foreclosure to remove the person from the home (an "ejectment suit").

Third, depending on the type of loan and any agreements with insurance and governmental type agencies, the mortgage company may not take a loss at all even though it is a short sale.


What are the advantages of a short sale?
One advantage is that you do not have a foreclosure on your record. There's nothing at the courthouse that says your home was foreclosed because it actually was not foreclosed. You sold your home. It was not foreclosed.

A second advantage is that your credit report may not show anything about a foreclosure.

The third advantage is you do not have your house listed in the newspaper as going through a foreclosure sale. You also do not have signs in your yard or in the windows of your house announcing to your neighbors that your home has been foreclosed.

A fourth advantage is that it is possible that you will not owe any money to the mortgage company for the amount that you are short. So in our example above you are short $50,000 but if your agreement says you do not owe this, then that is a tremendous advantage.


What are the disadvantages of a short sale?
One disadvantage is that the mortgage company may put a lot of negative activity on your credit report, including that foreclosure proceedings were begun. It is important to make sure in your agreement with the mortgage company that it is very clear what they can and cannot do on your credit reporting.

The second disadvantage is that you may owe money to your mortgage company. That amount is the amount that you are "short" of the amount owed. Taking our example from above where you owe $300,000 but you sell your home for $250,000, you may owe the mortgage company $50,000. It all depends on what you and the mortgage company agreed to in the short sale agreement as to whether or not you will actually owe any money at the end of the day.


What do I need to do before I can do a short sale?
Typically, you must have your house listed with a licensed real estate broker. And it must be listed for a certain period of time at a price that would actually pay off your mortgage.

Then if this does not work, you and your mortgage company can agree to list it for a price less than what you owe.

It can be difficult dealing with your mortgage company and trying to accomplish a short sale, but the new RESPA rules that went into effect on January 10, 2014, do give you more rights and strictly limit the mortgage company's ability to lie and play games with you. Well, perhaps I should say mortgage companies still lie and play games, but when they do this, you now can sue where it was difficult to sue in Alabama when mortgage companies would lie about doing a short sale. Thankfully that has now changed....


What if I have questions about doing a short sale or doing something else to stop a foreclosure in Alabama?
First, you are taking the most critical step which is to gain more information about this process so you can educate yourself. If you do not know what your rights are, then it is impossible for you to know what decision to make. You can read more about foreclosures on our Alabama Consumer website.

Second, foreclosures and short sales tend to be very complicated and involve the intersection of Alabama property law as well as federal consumer protection laws. These laws include RESPA, the Fair Debt Collection Practices Act (FDCPA), as well as other laws. It makes sense to sit down with a knowledgeable Alabama foreclosure defense lawyer to fully understand your options and answers to questions such as these.

Is a foreclosure imminent?

Can you do a short sale?

Can you get a loan modification instead?

Has your mortgage company violated federal or state law which would give you the ability to sue your mortgage company? And if you have the ability to sue, does it make sense to do so?

Third, if you would like to talk with us or receive information from us, you can always call us at 205–879–2447 or you can contact us through our AlabamaConsumer website and we will be happy to sit down and talk with you in person or by phone or by video chat.

We wish you the best of success in dealing with your home.

John Watts

May 7, 2014

"If I'm going to fight my mortgage company should I stay in my house or should I leave?"

If you are facing foreclosure or have already been foreclosed, you need to think very seriously about whether it makes sense to fight while staying in your home. I'm all about wanting to fight the mortgage companies but it has to be done in a smart way and in a way that makes financial sense for you as the homeowner.

We only fight mortgage companies when the mortgage company has violated the law. So in this discussion we take it as a given that the mortgage company has done something wrong to you.

So you have a legal right to fight back to either stop the foreclosure or to perhaps undo the foreclosure.

But is this a battle worth fighting from your home?

If you are successful, will you be happy staying in your home? I know this sounds like an odd statement but sometimes when you take a step back and look at your home you realize that it is not worth what you owe and there may be major repairs coming up. The house may no longer fit your lifestyle or where you work, kids go to school, etc.

How much will it cost you in legal fees to fight?

What if you lose? Could you owe money damages to the mortgage company for staying in the house?

It is very smart to think seriously about whether this is a battle that you want to fight, in order to keep your home. Make sure that your home is worth keeping if you're going to fight this battle.

I've been criticized by some for even mentioning this. There are those that believe that every home is worth fighting for regardless of the cost.

That's naïve absurdity to me.

The question is not whether you should sue your mortgage company or walk away from a lawsuit. If your mortgage company violated the law, then by all means sue the mortgage company. I have filed many lawsuits against Wells Fargo, Bank of America, Chase, etc.

But the question is whether you want to do that lawsuit while staying in this house. Sometimes the better decision is to leave your home, get a fresh start, and sue the mortgage company in federal court for money damages. Then, the issue in court is simply how much money the mortgage company owes you. Not whether they need to give you a good modification which may end up trapping you in a loan that you do not need to be trapped in.

The point of this rant is that you have to think through these issues on the front end and decide if it makes sense to stay and fight or if it makes sense to leave your home and then fight the mortgage company over money damages.

Every situation is different and the only way you're going to know the correct answer is to think through this and often it helps to have the advice and counsel of a lawyer who does this type of work. While many times people think of my firm in this area as only litigating cases, because we do not negotiate before filing suit in federal court, but a real value that we bring is to help you to think through your options and decide which option is best for you.

Not which option is best for your second cousin three times removed ex boyfriend's gardner in some other state.

It really doesn't matter what somebody else is done. What matters is what is the best decision for you.

I hope that this post is been helpful to you and if you live in Alabama and want help in thinking through these issues, feel free to contact my office at 205–879–2447 or you can contact us through our AlabamaConsumer website.

Thanks for reading this and I wish you only the best.

John G. Watts

PS -- You can read about the new RESPA/CFPB rules that make it easier to stop a foreclosure and to sue mortgage companies for violating the law.

April 19, 2014

Decision on FDCPA and Whether Consumer Dispute Must Be In Writing

The FDCPA (Fair Debt Collection Practices Act) gives protection to consumers but debt collectors often argue the law should give less protection than the law actually gives.

One example is to argue disputes on the validity of a debt must be in writing.

The Fourth Circuit decided this issue in favor of consumers and against debt collectors in Clark v. Absolute Collection Service by ruling that disputes can be done verbally and do not have to be done in writing.

The text is copied below for your convenience. If you want the simple dispute letter we recommend sending out in most cases, you can click on it here:

Simple Dispute Letter To Debt Collectors

If you live in Alabama and want to discuss this with us or if you are an attorney (anywhere) and you want to discuss the law or having us help you in your case, feel free to call us at 205-879-2447 or contact us through our website AlabamaConsumer.com.
===========
This case involves a putative class action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Dana Clark and David Clark ("the Clarks") sued Absolute Collection Service, Inc. ("ACS"),[1] on behalf of themselves and all others similarly situated, for its actions in attempting to collect a debt. The Clarks alleged that ACS's collection notice violated section 1692g(a)(3) of the FDCPA by stating that debtors only could dispute the validity of their debt in writing. ACS moved to dismiss the Clarks' lawsuit, contending that the collection notice complied with the FDCPA because section 1692g(a)(3) contains an inherent writing requirement. The district court granted the motion, and the Clarks appealed. For the reasons set forth below, we vacate the district court's judgment and remand the case for further consideration.

I.

The Clarks incurred two debts at a health care facility in Raleigh, North Carolina. When the Clarks were unable to pay, the health care facility referred the debts to ACS, a third-party collector. In its efforts to collect, ACS sent separate collection notices to the Clarks at their home in Raleigh. In both collection notices, a disclosure statement provided that:

ALL PORTIONS OF THIS CLAIM SHALL BE ASSUMED VALID UNLESS DISPUTED IN WRITING WITHIN THIRTY (30) DAYS; IN WHICH CASE, VERIFICATION OF THE DEBT OR A COPY OF THE JUDGMENT WILL BE PROVIDED TO YOU. IF THE ORIGINAL CREDITOR IS DIFFERENT FROM THE ABOVE NAMED CREDITOR, THE NAME OF THE ORIGINAL CREDITOR WILL BE PROVIDED UPON REQUEST.
J.A. 11, 12.

The Clarks sued ACS in the United States District Court for the Eastern District of North Carolina, at Raleigh, alleging that its collection notice failed to comply with the FDCPA. 15 U.S.C. § 1692 et seq. The Clarks asserted that ACS violated their right to challenge their debt orally under section 1692g(a)(3) of the FDCPA because the collection notice stated that the debt would be "assumed valid unless disputed in writing." They also contended that ACS's imposition of a writing requirement amounted to the use of "false representation or deceptive means to collect or attempt to collect any debt," in violation of section 1692e(10) of the FDCPA.

ACS moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that section 1692g(a)(3) contains an inherent writing requirement and that the Clarks, therefore, failed to state a claim upon which relief could be granted. The district court agreed, dismissing the complaint. In its reasoning, the district court stated that permitting an oral dispute of the validity of a debt under section 1692g(a)(3) would leave consumers "with fewer protections and in a potentially far more confusing station than if a writing is required." J.A. 26.

II.

We review de novo the district court's decision to grant the motion to dismiss. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). We also review de novo questions of statutory construction. Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).

A.

As in all statutory construction cases, our inquiry begins with the language of the statute. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004). "[W]hen the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms." Id. (internal quotation marks omitted).

Congress enacted the FDCPA with the goal of eliminating abusive, deceptive, and unfair debt collection practices. 15 U.S.C. § 1692. Among its safeguards against abuse and deception, the FDCPA requires a debt collector to send written notice to consumer debtors with whom it communicates in connection with the collection of a debt. 15 U.S.C. § 1692g. Section 1692g(a) provides that the written notice must contain:

(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
15 U.S.C. § 1692g(a)(1)-(5).

Pursuant to section 1692g(b), if a consumer "notifies the debt collector in writing" that the debt is disputed, the debt collector must "cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt . . . and a copy of such verification . . . is mailed to the consumer by the debt collector." 15 U.S.C. § 1692g(b).

On appeal, the Clarks ask whether section 1692g(a)(3) permits consumers to dispute the validity of a debt orally, or whether it imposes a writing requirement. This is a matter of first impression for this Court. The Third Circuit has held that section 1692g(a)(3) must be read to include a writing requirement, finding any other reading contrary to the purposes of the FDCPA. See Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991). In contrast, the Second and Ninth Circuits have found that the plain text of section 1692g(a)(3) permits oral disputes, and that such a reading results in a logical, bifurcated scheme of consumer rights. See Hooks v. Forman, Holt, Eliades & Ravin, LLC, 717 F.3d 282 (2d Cir. 2013); Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078 (9th Cir. 2005).

In line with the Second and Ninth Circuits, we find that the FDCPA clearly defines communications between a debt collector and consumers. Sections 1692g(a)(4), 1692g(a)(5), and 1692g(b) explicitly require written communication, whereas section 1692g(a)(3) plainly does not.[2] ACS asks that we disregard the statutory text to read into it words that are not there. We decline to do so. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983) (internal quotation marks omitted).

B.

Accepting that section 1692g(a)(3) does not contain an explicit writing requirement, ACS argues that it must be read as imposing an inherent writing requirement or else the procedure would be inconsistent with the other debt dispute mechanisms under section 1692g. In ACS's view, allowing oral disputes under section 1692g(a)(3) serves only to confuse consumers. ACS also points out that a writing requirement preserves the core protections of sections 1692g(a)(3) through 1692g(b), and all other rights consumers have under other sections of the FDCPA. Without it, ACS argues, "consumers may be led to believe that an oral dispute triggers the further protections" of sections 1692g(a)(4), 1692g(a)(5), and 1692g(b) when, in fact, those protections are waived if not invoked in writing. Appellee's Br. at 21.

We find ACS's arguments unavailing for several reasons. First, like the Second and Ninth Circuits, we are not persuaded that the plain language of section 1692g(a)(3) leads to absurd results, which would have permitted a search for meaning beyond the statutory text. See Lamie, 540 U.S. at 534. As written, section 1692g(a)(3) triggers statutory protections for consumers independent of the later sections 1692g(a)(4), 1692g(a)(5), and 1692g(b). For one, once a consumer disputes a debt orally under section 1692g(a)(3), a debt collector cannot communicate that consumer's credit information to others without disclosing the dispute. 15 U.S.C. § 1692e(8); see Hooks, 717 F.3d at 285; Camacho, 430 F.3d at 1082. Also, if a consumer owes multiple debts and makes a payment, a debt collector cannot apply that payment to a debt that has been disputed orally. See 15 U.S.C. § 1692(h); Hooks, 717 F.3d at 285-86; Camacho, 430 F.3d at 1082. Because we conclude that the plain language of section 1692g(a)(3) does not lead to absurd results, we decline to insert additional language.

Second, under well-established principles of statutory construction, this Court must "give effect, if possible, to every clause and word of a statute." United States v. Menasche, 348 U.S. 528, 538-39 (1955) (internal quotation marks omitted). If possible, a court should avoid an interpretation that renders any "clause, sentence, or word . . . superfluous, void, or insignificant." Duncan v. Walker, 533 U.S. 167, 174 (2001). Relying on the writing requirements in sections 1692g(a)(4), 1692g(a)(5), and 1692g(b) to give effect to section 1692g(a)(3) would violate these principles, leaving section 1692g(a)(3) with no independent meaning.

As a result, we find that section 1692g(a)(3) permits consumers to dispute the validity of a debt orally, and it does not impose a writing requirement.

III.

Accordingly, we vacate the judgment of the district court that dismissed the plaintiff's complaint and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

[1] ACS changed its corporate name on June 29, 2012, after this case was filed. Although the defendant now is called FKAACS, Inc., we refer to it as ACS throughout.

[2] We also note that the term "dispute," as commonly used, contemplates oral communication. See, e.g., Random House Webster's Unabridged Dictionary 569 (2d ed. 2001) ("to argue or debate about; discuss").

April 7, 2014

Decision on FDCPA and RESPA Claims Against Nationstar Mortgage

There was a recent decision relating to Nationstar which was sued under the FDCPA and RESPA and we thought it was an interesting opinion so we did a video review of the actual opinion. You can read the decision (Dynott v. Nationstar) and we have copied it below for your convenience.

If you have questions, feel free to give us a call at 205-879-2447 or contact us through our website AlabamaConsumer.com.

John Watts

GEORGE DYNOTT, Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, and McCALLA RAYMER, LLC, Defendants.

No. 1:13-cv-1474-WSD.
United States District Court, N.D. Georgia, Atlanta Division.

March 17, 2014.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Magistrate Judge Justin S. Anand's Final Report and Recommendation ("R&R") [16] recommending that Defendants' Motions to Dismiss [3, 9] be granted in part and denied in part.

I. BACKGROUND[1]

On April 1, 2013, Plaintiff George Dynott ("Plaintiff"), proceeding pro se, filed his Complaint [1.1] in the Superior Court of Cobb County. On May 1, 2013, Nationstar Mortgage, LLC ("Nationstar") removed the action to this Court with the consent of McCalla Raymer, LLC ("McCalla") (together, "Defendants").

Plaintiff alleges that on August 31, 1999, he entered into an FHA loan agreement with Home Banc Mortgage Corporation. After Home Banc Mortgage Corporation became insolvent on or about August 21, 2007, EMC Mortgage Corporation was awarded certain servicing rights under an Asset Purchase Agreement. Notwithstanding the Asset Purchase Agreement, Metlife Home Loans began servicing Plaintiff's loan on an unspecified date. Plaintiff alleges that he then received foreclosure notices from McCalla dated February 22, 2013. Plaintiff also alleges that Nationstar acquired the mortgage servicing rights from Metlife Bank, N.A.

Plaintiff asserts claims arising under both federal and state law. The Magistrate Judge determined that Plaintiff's Complaint asserted two claims under federal statutes. In Count Four of his "Damage Claims," Plaintiff asserts a claim "for damages under FDCPA statute violation for actual damages $1,000.00 per defendant, compensatory and punitive. MCCALLA failed to provide a clear and concise information with respect to the validation of the debt when called upon." (Compl. at 15). Plaintiff further asserts, in Count Five, a claim "for damages under RESPA statute violation for actual damages of $1,000.00 for failure to provide, compensatory and punitive. Nationstar failed to provide a bona fide servicing notice with no evidence of an agreement to service Mr. Dynott's loan." (Id.).

The remainder of Plaintiff's claims arise under Georgia law. Plaintiff asserts claims (1) for "breach of duty and breach of negligence per se due to legal duties under the FHA Contract," (2) "under Georgia Statutes for attempted Wrongful foreclosure by both Defendants," and (3) for "libel damages and restoration of his name." (Id.). He seeks to recover "punitive and compensatory damages and negligence attributable to actions by Defendants under O.C.G.A. § 44-14-160 through §§ 162.4," "a set aside of any foreclosure sale . . . [and] appropriate damages to unwind such sale," and other damages "deemed appropriate by the court at trial." (Id.).

On May 8, 2013, Nationstar and McCalla filed their Motions to Dismiss for Failure to State a Claim [3, 9]. On December 18, 2013, Magistrate Judge Anand issued his R&R recommending that the motions be granted in part and denied in part. The Magistrate Judge recommends that Plaintiff's claims under federal law be dismissed, and that Plaintiff's claims under state law be remanded to the Superior Court of Cobb County. The parties do not object to the R&R.

II. DISCUSSION

A. Legal Standard

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. V 2011); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation, a court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Because no objections were asserted, the Court reviews the R&R for plain error.

B. Analysis

1. Plaintiff's FDCPA and RESPA Claims

The Magistrate Judge determined that Plaintiff's pro se Complaint, construed liberally, attempts to assert claims against both Nationstar and McCalla under the Fair Debt Collection Practices Act ("FDCPA") 15 U.S.C. § 1692 et seq., and under the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2600 et seq.[2] The Magistrate Judge concluded that Plaintiff filed a shotgun pleading in respect to his FDCPA and RESPA claims, including because he does not allege sufficiently specific actions that Defendants took to violate the statutes. Plaintiff offers an Indiana Court of Appeals case to support his claim, but fails to explain how it is relevant to his case. The Magistrate Judge recommended that Plaintiff's claims under the FDCPA and RESPA be dismissed because his Complaint is a shotgun pleading. The Court does not find any plain error in these findings, conclusions, or recommendations. See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 (11th Cir. 2008) (explaining that shotgun pleadings are "roundly, repeatedly, and consistently condemn[ed]" in the Eleventh Circuit); Strategic Income Fund, LLC v. Spear, Leeds, & Kellog Corp., 305 F.3d 1293, 1295 (11th Cir. 2002) ("The typical shotgun complaint contains several counts, each one incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions."). Plaintiff's shotgun pleading in respect to his FDCPA and RESPA claims is required to be dismissed.

The Magistrate Judge further concluded that even if it were not a shotgun pleading, Plaintiff's Complaint fails to state a claim for relief under the FDCPA or RESPA. The Magistrate Judge recommended that Plaintiff's FDCPA claim against Nationstar[3] be dismissed because the FDCPA applies only to statutorily defined "debt collectors," and Plaintiff does not allege sufficient facts that Nationstar qualifies as a "debt collector" or engaged in any activities other than as servicer of Plaintiff's loan. The Court finds no plain error in these findings or recommendations. See Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366, 1375 (N.D. Ga. 2012) (explaining that 15 U.S.C. § 1692a(6)(f) has been interpreted to mean that "mortgage servicers are not covered by the FDCPA if they began servicing the loan at a time when it was not in default."). Plaintiff's FDCPA claim against Nationstar is required to be dismissed.

The Magistrate Judge concluded that McCalla did act as a "debt collector" under the FDCPA, but that Plaintiff failed to establish that McCalla engaged in activity that violated the statute. Plaintiff alleges that McCalla violated the FDCPA by failing to respond to his request to validate the debt. Plaintiff's validation notices, however, were inadequate, and even if they were adequate, Plaintiff fails to allege that McCalla continued the debt collection activities after receiving the alleged debt verification request. Plaintiff further alleged that McCalla violated the FDCPA by sending him "intentionally confusing and deceptive" letters and "failed to provide the complete information about the Secured Creditor which includes their address, telephone number." The Magistrate Judge concluded that, under the "least-sophisticated consumer" standard, McCalla's failure to include the address and telephone number of the secured creditor does not violate the FDCPA, and Plaintiff fails to explain any other way in which the letters were either confusing or deceptive. The Court finds no plain error in these findings or recommendations. See LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1194 (11th Cir. 2010) (citing Colman v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993)) (The "least-sophisticated consumer" standard presumes a person "to possess a rudimentary amount of information about the world and a willingness to read a collector's notice with some care."). Plaintiff's FDCPA claim against McCalla is required to be dismissed.

The Magistrate Judge concluded that Plaintiff alleged a RESPA claim against Nationstar for failure to notify him when it became his mortgage loan servicer, but that Plaintiff failed to allege facts to show that he suffered any actual damages or that Nationstar has a pattern or practice of noncompliance with RESPA.[4] Plaintiff's claim that Nationstar failed to respond to his Qualified Written Request ("QWR") also does not allege actual damages, and the Magistrate Judge further recommends dismissal because the letter that Plaintiff allegedly sent does not qualify as a QWR because it requests information about matters well beyond the mere servicing of Plaintiff's individual loan. The Court does not find plain error in these findings or recommendations. See 12 U.S.C. § 2605(f) (liability under RESPA is limited to "actual damages to the borrower" and, "in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $2,000.00"); Liggion v. Branch Banking and Trust, No. 1:11-cv-1133-WSD, 2011 WL 3759832 at *3 (N.D. Ga. Aug. 24, 2011) ("Plaintiff's information document requests are not a proper qualified written request under RESPA because they do not relate to the servicing of the loan."). Plaintiff's RESPA claim against Nationstar is required to be dismissed.

2. Plaintiff's State Law Claims

Plaintiff's FDCPA and RESPA claims, now dismissed, were the only claims in this action over which the Court had original subject matter jurisdiction. The Magistrate Judge recommended that the Court decline to exercise supplemental jurisdiction over Plaintiff's remaining claims, which involve only state law causes of action. The Magistrate Judge determined that concerns of comity, judicial economy, convenience, and fairness to the parties weigh in favor of remanding the state law claims. The state court will be able to decide Defendants' motions to dismiss more efficiently and with the benefit of more expertise. The Court does not find any plain error in these findings or recommendations. See 28 U.S.C. § 1367(c) ("The district court may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it had supplemental jurisdiction[.]"); Ingram v. School Bd. Of Miami-Dade Cnty., 167 F. App'x 107, 108 (11th Cir. 2006) ("State courts, not federal courts, should be the final arbiters of state law."); Murray v. Marks, No. 4:10-cv-126 (CDL), 2012 WL 359702, at *3 (M.D. Ga. Feb. 2, 2012) ("Although dispositive motions are currently pending before the Court, district courts are encouraged to dismiss any remaining state claims when, as here, the federal claims have been dismissed prior to trial.'") (quoting Murphy v. City of Aventura, 383 F. App'x 915, 919 (11th Cir. 2010)). Plaintiff's state law claims are remanded to the Superior Court of Cobb County.

III. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand's Final Report and Recommendation [16] is ADOPTED.

IT IS FURTHER ORDERED that Defendants' Motions to Dismiss [3, 9] are GRANTED IN PART AND DENIED IN PART. The Motions to Dismiss are GRANTED as to Plaintiff's claims under the FDCPA and RESPA, and those claims are DISMISSED. The Motions to Dismiss are DENIED as to Plaintiff's state law claims, and those claims are REMANDED to the Superior Court of Cobb County.

SO ORDERED.

[1] The parties have not objected to any facts set out in the R&R, and finding no plain error in the Magistrate Judge's factual findings, the Court adopts them. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993).

[2] Complaints filed pro se are to be liberally construed and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citations and internal quotation marks omitted). Nevertheless, a pro se plaintiff must comply with the threshold requirements of the Federal Rules of Civil Procedure. "Even though a pro se complaint should be construed liberally, a pro se complaint still must state a claim upon which the Court can grant relief." Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007).

[3] Although Plaintiff's FDCPA claim does not specifically mention Nationstar, it does request "damages of $1,000.00 per defendant." The Magistrate Judge interpreted Plaintiff's claims liberally and assumed that Plaintiff asserted his FDCPA claim against both Nationstar and McCalla.

[4] It appears that Plaintiff asserted his RESPA claim against only Nationstar, failing to allege any facts indicating that McCalla violated RESPA in any way. The Magistrate Judge recommended that McCalla's Motion to Dismiss be granted with respect to Plaintiff's RESPA claim against it. This Court does not find plain error in this recommendation.

February 17, 2014

"Why am I getting letters from Ferry & Nicholas and bankruptcy lawyers before I've been served with a collection lawsuit?"

Alabama consumers are being sued by debt collectors in staggering numbers. Often, before you are even served by the sheriff with a lawsuit, you will receive a letter from Ferry & Nicholas which claims to be a "non lawyer mediation firm" or you may receive letters from bankruptcy lawyers.

If you are wondering about this and also want to know how to use this to help you, then read one (or both!) of the following articles:

“Why am I getting a letter from Ferry & Nicholas about a lawsuit?"

“Why am I getting letters from bankruptcy lawyers before I have been served with my collection lawsuit?”

If we can help you with defending a lawsuit against you in Alabama or if you want to know your options about suing a debt collector in Alabama, give us a call at 205-879-2447 or you can contact us through our website here.

February 15, 2014

Consumer Power -- Procrastination and BP Oil Spill Claims

I hope you are having a great week -- after much chatter about it we finally got a bit of snow where I live in Birmingham.

Anyone ready for Spring?

When we look forward to something, we want time to "fly" by but when we dread something, we want to procrastinate.

Everyone procrastinates -- the ones who say they never do are merely procrastinating telling us the truth..... :)

Here's a quote I hope you find helpful -- I'm reminding myself of this so I cut down on procrastination:

Someday is not a day of the week. Janet Dailey.

To beat procrastination, we need to just get started. Kind of like working out -- if I put on my workout clothes and just get started, then I tend to finish the workout.

It is easier to resist in the beginning than at the end. Leonardo da Vinci.

So my encouragement to you -- and to me -- is to get started as that often fixes the little (big?) problem of procrastination.

What do we procrastinate that has a deadline in April?

Well, yes our taxes..... I've driven by the line to the post office on the 15th. :) Truthfully, I've been in that line a time or two "I'll never do this again!"....

But this time I'm talking about the deadline for business owners (we'll define this below and it is very broad) to file a claim under the BP Oil Spill Settlement.

BP wanted protection from being sued so it agreed to a settlement -- and a federal judge approved it -- that prevented business owners from suing BP for damages.

In exchange, BP agreed any business in Alabama, Mississippi and Louisiana could submit a claim if they had the right "revenue pattern."

Basically, this means during a three month period in 2009 your revenues were X, and then in the same time period in 2010 your revenues went down, and then back up in 2011. So there is a "V" shape if we graphed the revenues on a chart.

There is a lot more complexity to submitting a claim -- we need accurate profit and loss statements, tax returns, etc. but we have clients that are going to receive anywhere from ten thousand dollars to in the hundreds of thousands of dollars.

But is this fair to BP as I can't prove the oil spill caused the decline?

Yes, it is.

Because BP agreed to the rules of the settlement so it would not get sued. Now it is whining about it but the judge basically said "You begged me to give you this settlement and now because you under-estimated the cost, you want me to change the rules? Nope -- you live with your agreement."

(A similar situation is for veterans we represent who were in Viet Nam. The settlement is if you were "boots on the ground" in Viet Nam, then you are exposed to Agent Orange. If exposed to Agent Orange, and you have one of 14 diseases -- including diabetes, prostate cancer, neuropathy, etc -- then it is absolutely caused by Agent Orange and you can file a claim. No one tricked the goverment into this -- it did it to buy its peace from being sued for exposing our service men and women to this deadly chemical.)

So I want to encourage you if you are a business owner -- or know one -- to look into your options. You cannot sue BP because you are bound by this settlement so you are playing by the rules -- and one of the rules is you can submit a claim.

The deadline is April 22 but you can't wait until then because there is a lot of work involved to make this happen. So take action now -- no procrastination -- it is easier to finish once you begin so begin by today.

Tony Robbins says:

Never leave the site of a decision without taking immediate action towards obtaining your goal.

So if you have made a decision to look into this, one of the first steps or "action" you can take is to request a simple sheet that will allow you to put your revenues on it and then we can see if you pass the initial test. If so, then we can send you more detailed information. There is no cost to you -- this is done on a strictly contingency basis.

A business owner is someone who owns a business and normally also includes anyone who receives a 1099 so this includes:

Real estate agent
Truck driver
Salesperson
Mortgage broker

All of these (and many more) are considered business owners even though we may not normally think of them as such because they work in an office "under" someone else or because they drive for a company.

If you have any question about whether you qualify, call us at 205-879-2447 and ask to speak to Carolyn or Randi and we'll get you a simple sheet to fill out to find out if you are eligible for money damages.

Thanks for being with us this week and enjoy what appears to be much nicer and warmer weather and remember we are one day closer to spring.... :)


John
Watts & Herring, LLC
205-879-2447