All consumers should check their credit report annually for accuracy. When doing so, keep these common problems in mind. If you find a violation and are not satisfied, please contact me.
1. Carefully review all of your personal information. If your name is misspelled, your credit report lists incorrect addresses or a wrong social security number for you, or someone else's name, these are FCRA violations and should should be addressed.
2. Find the full name and contact information of any company listing tradelines on your credit report. If it hasn't given its full company name and correct contact information, this is a FCRA violation and the tradeline should be corrected or removed altogether.
3. Lingering Tradelines. Look at the date of last activity (DOLA) for each tradeline. Any negative tradelines older than 7 years or positive tradelines older than 10 years have to be removed. If they are not, this is a FCRA violation.
4. Reaged Accounts. Reaged Accounts are tradelines with incorrect dates of last activity, that allow the tradeline to be included on a credit report for a longer period of time than the legal 7 or 10 years mentioned above. Companies that do this may be guilty of willful FCRA violations.
5. Medical debt. Tradelines may not list the name of the health care institution where care was received. If an institution where medical care was provided is listed, it violates recent changes to the Act and the tradeline must be removed.
6. Debts that were not validated. If you mailed a debt validation letter but did not receive a response validating the debt after 30 days, and the tradeline remains on your credit report, a violation of the FCRA has been committed.
]]>Pole dancing as a form of entertainment is often made the butt of a joke. Yet, it's being taught in fitness centers around the country as a serious form of exercise. A New York City newspaper recently carried a story about a woman who filed a lawsuit against Crunch Fitness in New York for an injury she suffered in a pole dancing class. It's the kind of story that makes you think, "Pole dancing is risky business, what did she expect?" The method of injury seems so strange it becomes difficult to take the idea of a lawsuit seriously.
But maybe that is the point.
The tort "reform" movement in this country takes many forms. There is the obvious lobbying in Congress and in state legislatures every year to put limits on the types of injuries for which people can recover - capping pain and suffering awards or limiting recoveries in medical malpractice cases. In addition, there are efforts to limit our rights to sue drug manufacturers for failing to warn about the dangerous side effects of their drugs. There are also efforts to create more opportunities for defendants to delay lawsuits and challenge claims, making it harder and more expensive for an injured person to get his or her case heard by a jury.
But there is another side to tort reform and that is the business of reporting lawsuits that can be portrayed and misinterpreted as being funny or frivolous, even though the claims may be valid.
It all comes down to how you tell the story.
Take the McDonald's case. The story is usually told as if the woman should have known she would be badly burned if she spilled coffee in her lap. The subtext of most stories about that case was, "Duh, what did she expect?" What nearly all stories (except the excellent Wall Street Journal article) failed to say was that McDonald's was serving coffee in-stores and at its drive-in windows at nearly scalding hot temperatures - far hotter than most other restaurants and far hotter than you would serve it at home. In addition, McDonald's coffee had been spilling in laps and burning people for years. McDonald's knew about these cases and had been sued repeatedly, yet still served its coffee, not hot, but scalding hot. The second or third degree burn that results from having that coffee fill your lap for 2 to 3 seconds does not make for a Hap Hap Happy Place.
When the media tell stories in a humorous or derisive way, the tendency is for people to look down their noses at the justice system and at the lawyers who bring personal injury cases. It makes people think the system is broken and needs to be fixed. The "fix" that is readily offered by corporations and their lobbyists is tort "reform."
Tort "reform" is not just about shaping the laws; it's also about shaping the way people think about personal injury law, tort/personal injury lawyers and injured people. It's about stigmatizing injured plaintiffs and their lawyers. It's about prejudicing the people who are going to sit on juries in personal injury cases and turning those people into jurors who will be biased against injured people and the lawyers who represent them. Ultimately it's about stripping people of their right to hold corporate wrongdoers and their agents responsible. Who benefits from that?
The tort "reform" movement isn't about creating a more fair justice system. It's about creating a justice system that is more favorable to the corporations and industries that pay for lobbyists and legislators to twist the law in their favor.
Phrases like "frivolous lawsuits," "the McDonald's case" and "personal responsibility" are used by lobbyists, TV personalities and others to trigger the accumulated reactions their audience members have had from consuming biased and misleading stories. These terms become the rallying cries for tort reform in our legislatures.
So when you see a news story about a woman suing a fitness club for injuries suffered during a pole dancing class, does the injury or lawsuit seem funny or frivolous or make you wonder, "What was she thinking?" Is the news story controlling or twisting the way you think about the case? What additional facts would you need to see the story in favor of the injured person?
The Crunch Fitness website says: "The dancer's pole isn't just for professionals anymore. This challenging and sexy class combines intense upper body and core strength, coordination and balance..." In some stories, the woman in question was said to be a ballroom and tap dancer taking a free class. There are reports she was prodded by the instructor, in her first class, to get into an upside down position on the pole. When she was upside down, hanging by her legs, and asked the instructor for help, the instructor walked away. She lost her grip, fell and injured her shoulders. She was out of work for six months.
When you are a student new to an activity, you naturally look to your instructor for guidance and assistance. If he gets you into a dangerous position, then abandons you when you ask for help, is that fair treatment? Or is it his duty to help you get out of the danger he got you into?
News stories have a point of view. Whether a story about a lawsuit aims to entertain or to shape the way you think about a subject or an entire issue, it is slanted. If the feeling or reaction you get leaves you thinking something is wrong with the justice system, do you feel well informed, or like the facts have been twisted?
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Kevin Ryan wrote the following ode in response to a Dec. 30, 2009, story from the www.avvo.com, website:
Falling Moose Head Leads to Concussion, Lawsuit
Wednesday, December 30, 2009 at 02:23 PM
A restaurant patron is suing an establishment on New York City's Lower East Side where she claims she was clobbered by a fallen stuffed moose head. In a lawsuit filed in Manhattan Supreme Court, internet design consultant Raina Kumra alleges that while she was dining and drinking at the White Slab Palace late one night in October, a giant moose head become dislodged from the wall and struck her on the head, the Associated Press reports.
Lawsuit for a Fallen Moose Head
by Kevin Ryan
A woman who went partying comes now to file a suit,
Alleging she was injured when clobbered by a moose.
She wasn't o'er in Sweden, or even in Alaska,
She wasn't up in Maine, Minnesota or Mount Shasta.
Was on the Lower East Side, down on Delancey Street,
She didn't see it coming 'til the beast was at her feet.
Looking down with hurting head, she thought she saw a moose,
The floored head looking up at her, had somehow gotten loose.
Doctor visits followed and a lawyer visit too,
And so this claim against the moose head's owner has ensued.
The suit proclaims a duty to be free from falling mooses,
and other falling objects however they come looses.
The conk came in a back room as the clock struck 1 a.m.
A party there was going on, the moose head tame 'til then.
NYU grads packed the room, crowding through the door
at the White Slab Palace with its trophy room decor.
A witness said balloons were tied to the moose's antlers,
Then a partygoer pulled and the moose head answered.
The moose head mounted on the wall crashed down upon the floor,
The woman held her head and rubbed, complaining it was sore.
A witness took some photos to show what had befallen,
but did he snap the tugged balloon that loosed the moose's noggin?
So far it seems that mum's the word, among the party goers,
and so the lawsuit points its finger at the moose head's owner.
Will the judge identify who fixed balloons to moose?
Will he find, it's no Bullwinkle, but clearly caribou?
Will he say that one who ties balloons should know the score?
And know that college party-ers will tug on such decor?
Will he say that moose heads and balloons and drink don't mix?
That one who sets a stage like this must pay for drunken tricks?
Will he find it tortious to grace antlers with balloons,
and hold this alone would turn grad students into baboons?
The lawsuit of the falling moose complains of a concussion,
Another party incident for comical discussion.
Surely a case like this is no more than a joke?
A frivolous concoction after one too many tokes?
But when the laughter's over a fact is still a fact,
a loaded gun left about may be a tortious act.
Sword or mace, wall dangling, would have been a danger,
to family and friends, and to invited strangers.
Head of moose or caribou with antlers meant for bear,
Would be no laughing matter if not hung with care.
And she who sets a stage with loose props and alcohol,
may have to answer when a loose head topples off the wall.
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As the complexity and sophistication of robotic products increases, so too will increase the cost of proving liability. This cost will effectively close the courthouse doors to many who are injured. Manufacturers, through talking heads on TV, economic experts, pundits and so on are likely to lobby the public, the congress and state legislatures (a) on the need for immunities from suit to "protect jobs" (that probably have been exported to foreign countries) or to protect the "industry" so we don't fall behind other countries in robot production; or (b) they will seek the creation of additional procedural hurdles in the court systems and legal process to make it impossible for an injured person to hold a corporate manufacturer responsible before a jury.
New remedies or procedures will be needed to level the playing field so that economics alone do not dictate who can bring a lawsuit. The time may have come for the cost of proving liability to be included in the damages that are recoverable by an injured party who wins at trial after having made a settlement offer which was less than the jury verdict.
Without some mechanism to offset the cost barrier to holding such manufacturers responsible for the injuries they cause and to encourage them to have adequate levels of insurance coverage, their licenses to manufacture complex and sophisticated robotic devices will become, thanks to the high cost of litigation, licenses to maim and kill. That would be a world like the Empire Luke Skywalker fought against. It will be a world where the court system serves the powerful at the expense of the individual. In the rush to a future where R2Ds and C3POs move among us, let us not forget that it is the individual who is paramount, because when the individual is protected, each and every one of us is protected; but when it is the wealthy and powerful who are protected, then the rest of us live in danger.
In the movie Ghostbusters, the ghostbusters' advertising slogan asked - who you gonna call? As we move forward into a world with increasingly complex products, we need to remember this question and be sure that the justice system keeps the court house doors open to individuals injured by sophisticated and complex products of all kinds.
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In Star Wars when R2D2 and C3PO are sold to Luke Skywalker's uncle, he was looking for droids (thinking robots) to operate his farm equipment. Nobody asked - who made these things and who is at fault if they malfunction and burn down my workshop, destroy my equipment or injure anybody? The Star Wars script did not call for product malfunction and mayhem to create a personal injury law saga. However, Murphy's law is written into the script of real life. If accidents can happen, they will.
We have cars that parallel park themselves. We have Roomba vacuum cleaners that roll around the house on their own, moving from room to room, avoiding stairs, even plugging themselves into their docking station when their battery gets low. We have industrial robots in factories and robots used by the military in Iraq to detect and inspect bombs. The day is coming when robots will be moving around among us, operating not by direct human control but on artificial intelligence and other programs. Like the various products that have come before them, these robot devices will malfunction and injure people. It may be a car that drives itself through a cross-walk filled with pedestrians, or a janitorial robot bumping someone and knocking her down a flight of stairs, or a robot child caretaker that restrains a child and breaks his arm. Product failures and malfunctions are a fact of life that is not going to change.
Today when a machine or appliance causes a fire that burns down a house or kills people sleeping in their home, traditional product liability law determines responsibility for the loss of property or life. In these lawsuits, lawyers hire engineers to identify the malfunction that caused the fire and to determine whether that malfunction was caused by negligent design or negligent manufacture, alteration of the product during repairs or maintenance, abuse of the product, or a failure to warn about the fire hazard and what to do to prevent fires. In a typical defective product case, the cost for experts ranges from $75,000 to several hundreds of thousands of dollars. This litigation price tag alone prevents many legitimate cases from being brought - a form of tort control in and of itself.
Now along comes R2D2, adding artificial intelligence to the list of potential causes of product malfunction. The cost of litigation will be even greater as an additional class of experts will be needed to determine what part the computer software played in the malfunction. They will have to determine if the defect was in the original programming, or was it due to hacking or radio/ELF/microwave or other electrical interference, or to downloading a defective software patch, or downloading an updated version of the original program, or did the addition of a new program cause a conflict with the software in the robot in which the interaction of two non-defective programs caused a glitch that resulted in the injury? Determining the guilt or innocence of these ghosts within the machine will be difficult and expensive.
]]>A Judge Jeffrey Arlen Spinner, of the Supreme Court of New York's Suffolk County gave a Brookhaven, New York consumer whose loan servicer, IndyMac Mortgage Services, had obtained a judgment of foreclosure and sale a holiday reward for trying to work things out with the lender, while giving the lender ashes and switches for its misconduct. The lender had badly delayed participation in a settlement conference required by New York law for sub-prime loans. When a bank officer finally did appear, she was condescending, unwilling to discuss a sale to the borrower's daughter for fair market value, or a reasonable modification. In addition she used inconsistent numbers to describe the debt. The Court considered IndyMac's behavior to be outrageous. Since foreclosure is a special remedy not just a request for money, the Court decided the case under rules that require a party seeking the equitable relief of a foreclosure to come into court with "clean hands"--something the servicing company lacked. In the end, the Judge got so angry that he decided sanctions would not teach IndyMac a lesson and extinguished the borrower's debt altogether. If you want to read a great story about a bank getting a beat-down, see here: http://livinglies.files.wordpress.com/2009/11/indymac-bank-fsb-v-yano-horosky.pdf
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NBC News has reported that credit card companies are experimenting with annual fees for certain card holders to make up for lost revenues. http://today.msnbc.msn.com/id/33335064/ns/business-consumer_news/
If your bank indicates an intention to impose a fee for your credit card, raise a fuss, and if you can afford it, consider closing your account to make a point. But not all consumers can or should do that, because as noted in the news story, credit scores can be adversely affected by closing and reopening credit card accounts. Savvy consumers will think twice before closing their accounts, but now is the time to make your point if you so choose. Let the card company know in writing why you're cancelling the card--so there will be no doubt in its corporate mind.
]]>Introduced July 14, 2009 to the House of Representatives, America's Affordable Health Choices Act of 2009, otherwise known as HR 3200 (the lengthy text of which can be seen here: http://thomas.loc.gov/cgi-bin/bdquery/z?d111:H.R.3200) provides many health care coverage improvements for Americans. Some of the provisions are smart and simple improvements of protections for consumers of health care insurance. One might be tempted to us as an example minimum standards for health insurance programs. However, as with all regulatory action, minimum standards must be regulated, and that reduces flexibility and adds costs which ultimately will be borne by consumers either in their premiums or through taxation. A better approach would be to rely on user-friendly, standardized, disclosures that present a menu of benefits, so that consumers could price shop in light of fair disclosures and evaluate what omissions and inclusions may be driving a plan's premium costs. Why not standardize the minimum benefits? An easy answer might focus on elective procedures that involve moral issues. On strictly religious grounds, some consumers may not want their premium payment to cover abortion services. Another example might focus on the age or gender of a consumer: an elderly man might choose not to have coverage for obstetrical or gynecological services, whereas a younger person might choose to omit coverage for geriatric services. The question is, do we want one size fits all policies, or mightn't consumers benefit from accepting certain risks in order to save premiums. Less controversial consumer protections would be requirements that coverage must be provided for a price that is not based on preexisting conditions, increased transparency, disclosures and clear notices.
The similar Senate Bill, Affordable Health Choices Act S. 1679 (seen here: http://thomas.loc.gov/cgi-bin/bdquery/z?d111:S1679:) now contains a variety of amendments that have been survived the committee hearing. A good summary of the recent proposed amendments can be see here: http://www.towersperrin.com/tp/showhtml.jsp?url=usa/service-areas/health-care-reform/health-care-reform-pulse.htm#
Criticism of the bill has been mixed, and good points are raised on both sides of the aisle. However, it is clear that America is suffering due to a cost of health care coverage. Both sides of the debate should focus on developing core areas on which we can all agree, and locking improvements into a bill we can all agree on.
]]>Virginia consumers frustrated by arbitration clauses in Federal claims against powerful corporations may get relief soon. Yesterday, the Department of Defense Appropriations bill was amended by a provision to limit forced arbitration in employment contracts with defense contractors. The vote was 68-30, and now moves on to a conference committee for reconciliation with the House version.
The Defense Appropriations bill may seem an odd place for consumers to begin getting relief, but that is a function of the fact that claims against defense contractors are more likely to be large, and the injustice arising from forced pre-injury arbitration more stark. For example, there is the case of Jamie Leigh Jones, who after being drugged, raped, and confined in Iraq tried to pursue a lawsuit against her employer. She was denied due to a forced arbitration clause.
Jamie Leigh Jones is testifying today in support of the bipartisan Arbitration Fairness Act (S. 931 / H.R. 1020). The Act would ensure that the decision to arbitrate is made voluntarily and after a dispute has arisen, so corporations cannot manipulate the system in their favor at the expense of consumers and employees.
Virginia has an Arbitration Act that strongly favors arbitration clauses, even if they are buried in small print in the back of a contract. If you don't think its fair for companies to slip these into their contracts with consumers, let your state Senator or Delegate know you want change.
]]>In a New York Times article last week (seen here:
http://www.nytimes.com/reuters/2009/09/23/us/politics/politics-us-financial-regulation-cfpa.html?_r=1&scp=7&sq=consumer%20watch%20dog%20agency&st=cse), the recent White House proposal for a consumer financial protection agency is discussed. As with any new agency, it will take some time to become effective. Although it will have a huge influence on the financial sector, and should provide valuable protections, politicians are right in being keen not to reduce the competition, and the ability of consumers to make their own decisions, in the financial sector. ]]>Although the economy is currently showing signs that it is beginning to turn around, there are still many consumers struggling to make ends meet. There is also a lot of tension surrounding an individual or family's ability to continue paying on a mortgage. There are many people on the brink of foreclosure, and many who are in the process of being foreclosed upon. Unfortunately, there are companies and individuals who are scamming these vulnerable persons. There are a number of ways in which this fraud is perpetrated.
In one such scam, the rescuer says that if you sign the house over to them, the foreclosure will appear on their record and not against you. Of course, all you're doing is signing your house over, which is what you're trying to prevent from being foreclosed upon in the first place.
Another trick is for the rescuer to say that they will cure the default if you pay them money. In theory, this method may work, but there are so many contingencies (not the least of which is whether the company will, in fact, cure the default) that it make the approach very questionable.
Yet another fraud is companies who say they will represent you through the foreclosure process. Many such representatives are not licensed and have little or no training. Others simply take the money and run.
Finally, another way unscrupulous rescuers defraud people in the midst of foreclosure is to offer to buy the house with the option to buy it back at a later time. The reality here is that you will have a LARGER loan and likely a greater interest rate than your current situation, which makes the likelihood of buying back the home very low.
To find our more about foreclosure fraud, see the following links to the Federal Trade Commission and Freddie Mac:
http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre42.shtm
http://www.freddiemac.com/avoidfraud/
Lastly, to find out some tips about how to avoid mortgage fraud, see the following Federal Reserve website:
http://www.federalreserve.gov/pubs/foreclosurescamtips/default.htm
]]>The social worker assigned to consult with the couple was the one who suggested the idea of divorce and the hospital staff members concurred with the idea explaining, that they had seen it all before, many times, and advised M. to quickly dissolve the marriage.
This is because for five years after any divorce, M.'s assets could be seized -- precisely because the government knows that people sometimes divorce husbands or wives to escape their medical bills.
M. took the hospital's recommendation and divorced the man she loves instead of wrestling with her husband's mounting health care costs. Sounds cruel but without their married status she was protecting her and her children's nest egg. Perhaps in some instances, divorce is a way for couples to stay together happier and more comfortably than if they were married.
M. still helps her husband and, quietly, continues to live with him and care for him. His dementia, ironically, probably makes it easier for him to process what she deemed was the best decision for both of them.
But M. still worries that the authorities will come after her if they realize that they divorced not because of irreconcilable differences but because of irreconcilable medical bills. There were awkward questions from friends who saw the divorce announcement in the newspaper.
It was difficult for M to explain the situation to friends and family, since most people don't comprehend how soaring medical costs can result in irreparable harm, including bankruptcy, suicide, and, in this case, unwanted divorce.
For NY Times article see http://www.nytimes.com/2009/08/30/opinion/30kristof.html?sq=divorce&st=cse&adxnnl=1&scp=2&adxnnlx=1253901669-Zh73Y8nie83K7vuKfk8WhA
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I had a recent case where an ex-spouse was trying to reduce his child support obligation, claiming that he was not earning the income he used to because his new wife had taken over the business (let's call it XYZ Corp) that he started. My client had information that this was not the case and the ex-spouse was really trying to divert income to artificially suppress his income for child support purposes.
When I happened to find someone who was the ex-spouset's Facebook "friend" and asked them to do some investigating for me, what turned up could not have been more revelatory. Low and behold smack dab on the front page of his Facebook profile updated only a few days ago, he had listed "Occupation: Owner of XYZ Corporation."
This kind of diligent and free Private Investigator work paid off when we introduced his Facebook and MySpace profile in Court right after he testified under oath that he did not own the company anymore and had not advertised to anyone as such. These kind of revelations sexually explicit photos included, can be harmful to your case and not to mention embarassing.
It's not safe enough just to select who you are friends with and presume that an unassuming "facebook friend" will know your spouse's divorce attorney and give them access to your facebook page.
My recommendation is to either only post information that you wouldn't mind your spouse's divorce attorney seeing or keep off these social networking sites while you're going through a divorce.
For more advice see "Facebook and Divorce. Social- networking sites are great for when you want to connect. But what about when you split?" TIME magazine June 22, 2009.
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Chrysler Group LLC had a similar bankruptcy and left behind environmental problems, but these are said to be no where near the scale of GMs contaminated sites. As you may imagine, other manufacturers have gone bankrupt before and left behind contaminated sites, but nothing of this magnitude.
As seen from my earlier blog article, GM was also able to wipe out current and pending product liability claims, and Chrysler was able to wipe out current and pending product liability claims, and any future claims for products manufactured prior to June 10, 2009. Those poor victims will likely fall on government plans such as Medicaid and Medicare, again leaving the taxpayer to foot the bill.
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