James T. (“Jim”) McMillen is a 1975 honor graduate of the Nashville School of Law. He has practiced in  both Texas and  Tennessee. He is listed in “Best Lawyers in America”. He is a graduate of the Gerry Spence Trial Lawyers College, Dubois, Wyoming. He is an adjunct professor of consumer law and litigation at the University of Houston Law School - Consumer Law Center. He served on the Alumni Board of Directors of the Gerry Spence Trial Lawyer College from 2004-2008. He currently is an advisor to the Texas Consumer Complaint Center and on staff of the Peoples Law School. He has obtained judgments and settlements for consumer in excess of $90 Million dollars.

 He holds licenses with the  Supreme Court of Texas and Tennessee. He holds licenses the Supreme Court of the Untied States of America , the Untied States Court of Appeal for the Fifth and Sixth  Circuits, the United States District Courts for the Southern, Northern and Western Districts of Texas and the Middle District of Tennessee. He

 He was Board Certified in both Business and Consumer Bankruptcy Law by the Texas  Board of Legal Specialization for over 20 years until 2010. He has received numerous honors and awards including Trial Warrior of the Year from the Gerry Spence Trial Lawyers College and Consumer Hero of the Year from the National Association of Consumer Advocates and was honored by the Tennessee State Legislature for his efforts for better government. Since commencing his practice in 1975 he has concentrated his practice on, consumer law,  bankruptcy law, class action litigation, commercial litigation, civil rights (particularly on issues affecting women), and medical  malpractice. He served for six years as an  administrative law judge on the  Tennessee Medical Malpractice Review Board while maintaining a full time law  practice and was reappointed for another 6 years. Since beginning his practice he has been known to  handled many difficult and controversial issues. During the banking and savings & loan  crises in the 1980's and 1990's, he has handle numerous business bankruptcies  many of  which have involved millions of dollars and large classes of claims. He  has severed as a Chapter 11 Trustee and he frequently represents Trustees in  bankruptcy cases. He represented the Plaintiff in the first jury trial tried in the United States Bankruptcy Court for the Southern District of Texas, Corpus Christi Division. He is  a  nationally known advocate on consumer issues. He has continuously served on the board of directors and as secretary of the National Association of Consumer Bankruptcy  Attorneys from 1994 through 2002. He is the past Chairman of the Bankruptcy Committee of the State Bar of Texas, an office he held for two years. He has served on Governing Counsels of  both the Consumer Law Section and  the Business Law Section of the State Bar of Texas. He is an active member of  the National Association of Consumer Advocates. He has held  numerous offices and served on committees of both the state and local bars in the states of Texas and  in Tennessee. In 1996, he was a witness on behalf of consumers before the National Bankruptcy Review Commission and been a witness before the Texas State Legislature on issues on behalf of consumers. He has severed on committees to assist in drafting national and state laws and regulations affecting consumers. He has been an Amicus Attorney before both federal and state appellate courts for Public Justice,  the National Association of Consumer Advocates, and the National Association of Consumer Bankruptcy Attorneys.

He has authored and spoke on the following: The Changing World of Mortgages, Houston Bar Association(2008) - predicting the financial crisis four weekes before it occurred, Finding Consumer Claims in Bankruptcy, University of Houston Continuing Legal Education (2007), Finding Consumer Claims in bankruptcy, Houston  Debtor Attorneys Bar Association(2006), Class Action Litigation in Bankruptcy Cases, National Association of Consumer Bankruptcy Attorneys, National Association of  Consumer Bankruptcy Attorneys (2000), Payday Lending Litigation, National Consumer Law Center/National Association of Consumer Advocates (2000), Computer Trial Exhibit  and Computer Document  Management in Complex Litigation, National Consumer Law Center (1999); Computer Trial Exhibits on a Limited  Budget, National Association of  Consumer Advocates (1999); Creditor Abuses - High Interest Payday  Loans, National Association of Consumer Bankruptcy Attorneys (1999); Attorney Web Pages, National   Association of Consumer Bankruptcy Attorneys (1999); Litigation with States after Seminole, National Association of Consumer Bankruptcy Attorneys (1998); Purposed  Changes to the Bankruptcy  Law, State Bar of Texas (1998); Creditor Frauds and Scams in the Mortgage and  Auto Industries, National Association of Consumer Bankruptcy  Attorneys  (1997); Small Business Chapter 13's, National Association of Consumer Bankruptcy Association ((1996); Defending against Dischargeability Cases with  Credit  Card Lenders, National Association of Consumer Bankruptcy  Association (1996); Ethics -The Use and Misuse of Paralegals, Texas State Bar (1996); Counseling Debtors, Texas  State Bar (1996); Bankruptcy Litigation, National  Association of Consumer Bankruptcy Attorneys, (1995); Small Business Chapter 13's , National  Association of Chapter 13  Trustees (1995); Bankruptcy Practice - Regional Differences, National Association of Chapter 13 Trustees (1995); Bankruptcy and the Family Law Case,  Corpus Christi Bar  Association (1995); Ethics, National Association of  Consumer Bankruptcy Attorneys (1994); What you Always Wanted to Know About Bankruptcy, Corpus Christi Credit  Bureau (1991); Legal Considerations in Regard to Variable  Interest Rate Loans, Small Business Administration of the United States Government National Attorneys Training  (1984); Bankruptcy: The Creditors Challenge, Tennessee Bar Association (1980). He is a "PowerLaw" author  for the Texas Lawyer on bankruptcy and consumer subjects. In the  last year he has been quoted on issues involving consumer law in the following publications:  Business Week (magazine), the Wall Street Journal, Washington Post, New York Times,  Lawyer's Weekly, Austin  Statesman, Cincinnati Post, Seattle Times, and Chicago Sun-Times. He is activly involved in in the international consumer law program working with attrorneys from around the world to draft and impliments consumer laws in their country included attorneys from the european union.

The following are  notable cases in which he has been involved: In re:  Smithwick; 121 F.3d 211; 1997 U.S. App. LEXIS 23646(5^th Cir. 1997) - Applicable interest rate in  consumer bankruptcy cases is contract  rate. Counsel on Amicus Brief for National Association of Consumer  Bankruptcy Attorneys; In re: Mendoza; 111 F.3d 1264; 1997  U.S. App. LEXIS 10709(5^th Cir. 1997) - Established that Debtors can amend Chapter 13 Plans to include post  petition mortgage arrears (Counsel for the Debtor); In re: Carlan, 157 B.R. 324 (Bankr. S.D. Tex. 1993) - Set standard of valuation in  Fifth Circuit prior to Rash to between the Wholesale and retail on a case by case basis; In re: Burton Securities; 202 B.R. 411 (Bankr. S.D. Tex. 1996) - Effect of Confirmation of Plan  as res adjudicata (Counsel for Trustee), In re: Carlton; 26 B.R. 202 (1982) (Bankr. M.D.  Tenn. 1982) - Established a national standard for  dischargeability of embezzlement in bankruptcy cases; Tex. Dep't Public Safety v. Galbreath; 1997 Lexis App. 4603 (13^th Ct. App. -Corpus Christi no writ); Dannell v. Citizen's State Bank; 754 S.W. 2d 407 ((1^3th Ct. App. - Corpus Christi, no writ). - Established that the creditor has the proof on  commercial reasonableness of a sale under UCC Article 9; and Page v. Wilkinson, 657 S.W.2 d  422 (Tenn. Ct. App. 1983) - Established in Tennessee that the insured must be  made whole before PIP coverage could be surrogated.

WHAT IS BANKRUPTCY?

  Bankruptcy is a method of discharging or reorganizing debt. Reorganization bankruptcies (Chapters 11, 12 and 13 of the United States Bankruptcy Code) are  intended to provide individuals and businesses with protection from creditors while they restructure under court supervision by making reduced payments  to their creditors.  The reorganization bankruptcies, in most cases, stop foreclosures and repossessions.

CHAPTER 7:

 This is the common form of bankruptcy.  In this type of bankruptcy, the debtor files a petition in federal court listing everything he or she owns and  all of his or her debts. The debtor claims the property which he or she is allowed to keep by law (exempt property).  If there is any property which is  not exempt, it is turned over to the court to be sold to apply to the payment of debts.  Due to the great amount of protection afforded by Texas Law  most of a consumer's property is exempt (see section on exemptions). If there is not enough property to pay the debts, the remainder of the debts are  forgiven except for non-dischargeable debts (see the section on debts that are not forgiven). The court cost for filing a Chapter 7 is $200.00.  The  attorney's fee will vary depending on the amount of services required. Quoted fees do not include unforeseen litigation.

CHAPTER 13:

 In this type of bankruptcy, the debtor files a petition in the federal court listing all of his or her debts and property.  The debtor then enters into a plan  to make payments on his or her debts for three to five years.  The plan does not have to provide for paying for all of the debts in full, but it must be the  debtor's best effort and must be approved by the court.  After the plan is over, the remaining debts are forgiven.  This type of bankruptcy permits the  debtor to keep some of the assets which would not be exempt under Chapter 7 and provides a broader discharge than Chapter 7. In other words, some of the debts that would not be dischargeable in Chapter 7 are  dischargeable under Chapter 13.  To qualify for a Chapter 13 bankruptcy the debtor must be an individual (corporations, partnerships and trusts are  not permitted); he or she must have regular income such as wages, pensions, government benefits; and the debts must not exceed $269,250 of unsecured  debts or $807,750 of secured debts.  The court cost for filing a Chapter 13 is $185.00.  The attorney's fee will vary depending on the amount of  services required. Generally, quoted fees only cover the period through confirmation.  Services provided after confirmation are not anticipated and  there will be an additional charge.  Examples of such services are modification of plans, motions to dismiss or motions to obtain relief from stays.

CHAPTER 11:

 This is a form of business reorganization bankruptcy. The business or individual files for reorganization or for time to liquidate debts over a period  of time, usually three to five years.  The goal of the Chapter 11 is to get court approval of a plan that will provide for payment of debts while the  debtor continues to operate. Chapter 11 is the most complex and costly form of bankruptcy, and it requires that the debtor keep detailed records  and to deal with the demands of the creditors. The debtor usually performs the duties of the trustee. Generally, if poor management led to the debtor's  problems, or if the debtor's relationship with his or her creditors has deteriorated, it will be very difficult to get approval of a Chapter 11 plan.   Recent court decisions have caused the courts to move these cases faster than they have in the past.  The court cost to file a Chapter 11 is $830.00.  The attorney's fee is on a time and expense basis. Generally, a large retainer is required up front to assure that fees will be paid. Additionally, the U.S.  Trustee charges a quarterly fee based on the amount of disbursements until the case is closed.

CHAPTER 12:

 This a form of bankruptcy which was enacted specifically because of the agriculture crisis.  It is available to family farms and ranches that have at least  80% of secured debt in the agricultural operation, and from which the family derives at least 50% of its gross income.  Farms and ranches with up to  $1.5 million in secured debts are eligible for consideration.  Family held corporations, partnerships or joint operations are eligible, provided the  family owns the majority of the interest and any stock is not publicly traded. It is simpler than Chapter 11, and the creditors cannot veto a reorganization  plan submitted by the farmer or rancher. Under Chapter 12, the farmer or rancher is given some of the powers of the court appointed trustee, and  remains in charge of the operation.  Land and equipment may be sold by the operator to trim the debt load and to pay off creditors. Agricultural  operators in Chapter 12 may make payments to creditors equal to the market value of land and equipment in installments like rental payments. If  the value of land and equipment has declined, the difference between the balance of the loan or mortgage and the present market value is deemed  unsecured debt and will be discharged (forgiven) at the end of the 3 to 5 year period. The operator's assets are put into trust that is used to pay living  and operating expense and to pay creditors.  The court cost for filing a Chapter 12 is $230.00. The attorney's fee will vary depending on the services to be performed.

CAN A DEBTOR BE FORCED INTO BANKRUPTCY?

 Yes, except for farmers.  Also, a farmer who has filed a case to reorganize cannot be converted to Chapter 7.

 For purposes of the Bankruptcy Code, a farmer is defined as a person who derived 80% of his or her gross income from farming in the taxable year immediately before the bankruptcy was filed.

WHEN IS VOLUNTARY BANKRUPTCY A GOOD IDEA?

 A debtor should always attempt to work out an arrangement with creditors to repay or restructure debts if possible, especially where the financial  problem is temporary.  If a workout cannot be negotiated, bankruptcy may be the only alternative, especially if foreclosure or repossession is imminent.

 Bankruptcy may be a good idea if:

 1.  Liens are being put on the debtor's property;

 2.  A creditor is attempting to foreclose on or repossess a debtor's collateral (such as household goods or necessary tools or farm machinery)  and won't let the debtor work out lower payments so he or she can keep the collateral; or,

 3.  A creditor has foreclosed, repossessed, or obtained a judgment, and is proceeding with attempts to obtain possession of the debtor's property. In  these cases, the bankruptcy must be commenced immediately after the foreclosure is commenced or judgment is obtained if the debtor is to be protected against loss of property.

 A bankruptcy petition can stop collection efforts, harassment, foreclosures and judicial sales.

WHEN IS BANKRUPTCY NOT A GOOD IDEA?

 Bankruptcy is not a good idea if:

 1.  The debtor has not made an attempt at informal negotiation with major creditors;

 2.  The debtor is not working and does not have anything his or her creditors can take;

 3.  Debts are less than $5,000.00; or,

 4.  If the debtor is expecting an inheritance or property settlement in a divorce proceeding within 6 months after filing.

5. If the debtor loads up the credit cards by purchasing luxury goods.

 Reorganization bankruptcy may not be a good idea if the debtor lacks a steady source of income for operating expenses, since no chapter of the  Bankruptcy Code requires lenders to loan money to persons who are in bankruptcy.  Most lenders are reluctant to loan money to persons in  reorganization.  Exceptions are utilities who must provide services, but they may require higher deposits; and, the Farmers Home Administration has  regulations that state that bankruptcy does not automatically disqualify a loan applicant from consideration.

WILL BANKRUPTCY AFFECT MY JOB?

 No. Under the Bankruptcy Code, employers (with certain exceptions) cannot discriminate against a person for electing to enforce his or her rights  under the law. Also, government units may not discriminate against a person in licensing for exercising his or her rights under the Bankruptcy Code.

WHAT EXEMPT PROPERTY CAN BE PROTECTED?

 The law states that some property is so important that it cannot be taken by a creditor unless the creditor has a valid security interest in the property.   This property is called "exempt property". Under the law, a debtor (individuals only - -corporations, partnerships, etc., do not qualify) may elect  to take either federal or state exemptions.  Items protected from unsecured creditors  under Texas law include:

     1.  Up to 200 acres of land for a family or 100 acres for a single person with improvements including residence outside a city or town, or ten acre  with improvements including a residence inside a city or town.

     2.  Eligible personal property with a combined fair market value of up to $60,000.00 for a family or $30,000.00 for an individual. Eligible personal property includes:

     -home furnishings, including family heirlooms;

     -provisions for consumption (food);

     -if reasonably necessary, farming or ranching vehicles and implements, tools, equipment, books and apparatus, including boats and motor vehicles, used in a trade or profession;

     -wearing apparel;

     -jewelry not to exceed 25% of aggregate exemption;

     -two firearms;

     -athletic and sporting equipment;

     -a 2, 3 or 4 wheeled vehicle for each member of the family, including cars, trucks, bicycles, horses, etc.;

     -the following  and forage on hand necessary for their consumption: two horses, mules, donkeys and saddle, blanket, and bridle for each, 12 head of cattle, and 120 fowl;

     -the cash surrender value of any life insurance policy to the extent that a member of the family of the insured or a dependent of the insured;

     -commission not for personal services up to 25% of aggregate;

     -current wages for personal service; and,

     -professionally prescribed health aids of debtor or a dependent of debtor.

     Social Security benefits, unemployment compensation, public assistance and certain retirement benefits.

WHAT ARE THE DEBTS THAT ARE NOT DISCHARGED?

     Generally, most forms of bankruptcy will not get rid of debts for child support, alimony or taxes.

     Sometimes, what the borrower does before filing bankruptcy may prevent discharge of certain debts. For example: if the debtor fraudulently  transfers property, conceals property; fails to explain the loss of property; intentionally provides the court with false information; is guilty of perjury; or  fails to cooperate with the court. Also, these acts are federal crimes.

     Certain debts on application of the creditor and after hearing can be determined to be an exception to discharge.  For example:  Taxes, fines  owing to a government unit, alimony, child support, debts created by fraud or theft, malicious injury to person or property, injury to person or property  while driving intoxicated, certain student loans, debts not listed, etc. However, under Chapter 13 most of these debts can be discharged or provided for under the plan.

 All sales or transfers (even for security) within three months before the date the petition is filed will be looked at closely. The bankruptcy court will look  back one year if the transaction is between family members or partners.

CAN BANKRUPTCY PROTECT A DEBTOR FROM FORECLOSURE OR REPOSSESSION?

 Yes.  A bankruptcy will delay foreclosure for at least several weeks or months.

 If a consumer elects the federal exemptions, the bankruptcy court can wipe out a lien of a creditor on household goods, household furnishings, wearing  apparel, appliances, books, animals, crops, musical instruments, tools, etc., if the creditor did not give the debtor the money to purchase the items and  the creditor is not holding the items or if the lien is a judicial lien.

 In certain cases the debtor can retain property by continuing the payments to the creditor or by paying the current value of the collateral in cash and discharging the remainder of the debt.

WILL BANKRUPTCY HURT THE DEBTOR'S CREDIT RATING?

 That depends a great deal on how the debtor's credit rating was before he or she filed bankruptcy. The fact that the debtor filed bankruptcy will  remain on the debtor's credit record for ten years.  Other adverse information such as foreclosures, repossessions, judgments, slow payments,  etc., will be reported for seven years. Some creditors will keep the debtor's account open if the debtor continues payments and has been current with the creditor in the past.

WHO CAN FILE BANKRUPTCY?

 Any person who resides in, does business in or has property in this country can file bankruptcy. It is not necessary that the debtor's debts be greater  than the debtor's assets in order to file bankruptcy, although as a practical matter it is seldom wise to do so unless the debts are greater than the  debtor's assets. The exception, of course, is a reorganization case.

HOW OFTEN CAN A DEBTOR FILE BANKRUPTCY?

 A discharge cannot be granted in a Chapter 7, 11, or 12 if the debtor has been granted a discharge in a Chapter 7, 11, or 12 bankruptcy within the  previous six years or in a Chapter 13 case filed in the last six years, unless 70% or more of his or her debts were paid off in the Chapter 13 case.  A  debtor can file a case at any time and be granted a discharge under Chapter 13 as often as is necessary. However, an individual cannot file a new  bankruptcy if the individual had a bankruptcy case dismissed in the past six months for failure to obey a court order or the individual dismissed the case while a motion to lift stay was pending.

UNDER WHAT CONDITIONS SHOULD BOTH THE HUSBAND AND WIFE FILE A BANKRUPTCY?

 Both the husband and wife should file when some of the debts are owed jointly by both the husband and the wife.

CAN BOTH A HUSBAND AND WIFE FILE A JOINT BANKRUPTCY PETITION?

 Yes.  Under the bankruptcy laws a husband and wife may file a joint bankruptcy petition, using the same forms. Only one court cost is charged  to file and generally the attorney's fee will be the same to file a joint petition.

HOW MUCH DOES IT COST TO FILE BANKRUPTCY?

 There is no set amount for attorney's fees. The amount of attorney's fees will depend on the type and complexity of the case.  Fees are always  subject to the approval of the bankruptcy court. This is also true for the fees of certified public accountants, private appraisers and other professionals the  debtor may have to hire for a reorganization bankruptcy. Because of the nature of bankruptcy most attorneys require their fees up front.

CAN A DEBTOR TRANSFER PROPERTY TO A RELATIVE TO KEEP CREDITORS FROM GETTING IT?

 No. Transfers to friends and relatives are suspect and can cause a denial of the debtor's discharge if made to defeat creditor's interest, and such  transfers in bankruptcy cases are subject to possible criminal action.

 Likewise, a debtor should not buy property and charge it or borrow money if they are considering bankruptcy.  This type of debt will be considered a non-dischargeable debt in bankruptcy.

IS IT OKAY TO WAIT AND SEE IF YOU NEED BANKRUPTCY LATER?

BE CAREFUL THERE MAY BE A CHANAGE IN THE BANKRUPTCY LAWS

 Sometimes.  Many unemployed people wait until they go back to work. It is usually best to wait until foreclosure or repossession is threatened before  filing bankruptcy. Most debts incurred after the bankruptcy is filed cannot be added to the bankruptcy.  It is a good idea to obtain insurance after  bankruptcy to protect you from future suits. Even though you can discharge a foreclosure deficiency in bankruptcy, do not wait for foreclosure to occur  before filing. Foreclosures in some cases have tax consequences and taxes are not dischargeable in bankruptcy. However, if bankruptcy is filed before the foreclosure it can prevent negative tax consequences.

Foreclosure rates have increased nationally by more than 200% since 1980 and show no signs of abatement. More than 600,000 homes were foreclosed in 1989.

Homeowners fall behind on their mortgages for many reasons: sudden decreases in income due to the loss of a spouse; poor financial management which contributes to nonpayment of utility  bills, service shutoffs and liens against  the property; failure to perform necessary repairs and maintenance which make the property uninhabitable; second mortgage scams which make  impossible demands on the homeowner's limited resources.

All of these contributing factors can be addressed by skilled advocates -- if  homeowners turn to them in time.

How Foreclosures Work
Foreclosure procedures vary from state to  state. The procedures are established by state statutes, by case law, and by local practice. In about half of the states,  foreclosures are court proceedings.  First the creditor files a suit in a court located near the property. Texas provides for non-judicial foreclsoure except for  home equity loans which require a court proceeding.

Unless the homeowner files an answer successfully contesting the foreclosure,  a judgment is entered for the creditor. The home is then sold under court  supervision.

Other states have "non-judicial foreclosures." Creditors foreclose by simply advertising the home for sale, using a legal notice in a newspaper.
If homeowners want to contest this type of foreclosure, they must file a lawsuit  and ask the court to stop the sale. Sometimes if the homeowner wants the court to  stop the foreclosure, the homeowner must file a bond to protect the creditor.  Unless the homeowner initiates a court proceeding, there is no judicial  involvement in such a foreclosure.

Some states allow both types of foreclosure, judicial and non-judicial.  Practicality and local custom usually dictate a creditor's choice of one type over the other.
 

Texas Specific:
In Texas a creditor can only conduct a foreclosure sale on the first Tuesday of each month between the hours of 10:00 a.m. and 4:00 p.m.  The Creditor  must give the property owner a 21 day notice prior to the day of foreclosure by mail at the property owner’s last known address.  The Notice must be  posted at the Courthouse door in the County where the property is located at least 21 days prior to sale and the property must be sold at the courthouse in  the designated location. Additionally, the notice must state the earliest time that the sale will begin and the sale with be completed within three hours after that time.
If the property owner resides in the property then the creditor must give the property owner a 20 day notice of intent to accelerate prior to accelerating  the debt and prior to posting the property for foreclosure.

Consumer Strategies When Foreclosure is Threatened
When a homeowner first becomes worried about meeting mortgage payments,  advocates can  recommend that a series of steps be taken to reduce the risk of foreclosure:

Get Legal Advice
Because foreclosure is a harsh legal process, homeowners threatened with foreclosure should immediately obtain  legal help. A competent attorney can  determine whether  there are legal defenses to a foreclosure. Too often, homeowners either postpone consulting a lawyer until after the time to assert their  legal rights has passed, or walk away from their homes in frustration, leaving themselves without any equity and vulnerable to deficiency claims. For each  foreclosure situation, a counselor or lawyer must carefully evaluate the homeowners' objectives and interests. Homeowners should, however, avoid  "Quick Fix" attorneys who may  advertise or solicit through the mail from published foreclosure lists. Many  times these practitioners will push the homeowner to file a  bankruptcy prematurely. A bankruptcy may be necessary at some point. But, as with many  things, proper timing may be critical. Additionally, be ware of firms  lender that advertise that they can get you a new loan for a fee.  Many of these companies are scams that do not obtain a loan, but rather at the last minute prior to  foreclosure they have an attorney file a bankruptcy for the property owner.
 

Keep Current on Home Payments
The consumer should not pay credit card debts, doctor bills or other low priority debts ahead of home mortgage payments. Skipping payments on low priority  debts for several months will have little or no bad consequences, but skip one or two home mortgage payments, and  the consumer risks losing the home.  Sometimes the default can usually be cured by simply paying the amount in arrears.

Apply for Income Maintenance, Tax Abatement and Public Assistance  Programs
Benefits provided by government and non-profit agencies are a key source of  assistance for individuals in financial distress. These resources can help older homeowners free their income for home payments. Benefit programs to apply for  can include fuel assistance and weatherization assistance, food stamps and emergency home repair programs. Most municipalities and counties also offer  property tax abatements for reasons of age or hardship. For very low income  homeowners, particularly those who are recently widowed, advocates should also  determine the homeowner's eligibility for Supplemental Security Income. The  process of obtaining these benefits is often slow and difficult.
 

Negotiate a Temporary Delay in Payments
One of the most important  strategies today for homeowners in financial trouble is  to work out with the lender a temporary delay in payments or a period of reduced payments. More and more creditors are realizing that foreclosure is a losing  proposition for the lender, and that they are better off keeping the consumer in the home making  whatever payments the household can afford. Some forms of  forbearance that lenders are increasing likely to accept include:
 

• Skipping one payment (that is, letting the consumer remain "30 days down");
• Extending the grace period for making late payments;
• Skipping two to six payments for a year or two; or
• Accepting reduced payments for anywhere from one to eighteen months.
   

It is important to contact the lender early, as soon as the homeowner begins experiencing financial difficulties. Just calling the lender on the telephone is a good  way to start. Immediately follow up all phone calls with a letter to the lender confirming what has been discussed. The homeowner should keep a copy of  the  letter. The homeowner should continue to press the lender for a response to  the offer, and not simply sit back awaiting a response.
 

Negotiate a Permanent Loan Restructuring
Although a temporary forbearance is easier to negotiate, for some older homeowners the financial problem is more long term. To keep the house they will  have to have lower mortgage payments not just for a period of months, but perhaps as long as the mortgage has to run. And lenders are beginning to realize  that permanently receiving less interest may be a better solution than foreclosing on the home.

Where a home's likely sale price at foreclosure is less than the mortgage, the lender is usually better off keeping the consumer in the home and receiving  lower  mortgage payments. Moreover, more and more consumers are utilizing their rights in bankruptcy, and lenders are discovering that they are worse off if the  consumer  files bankruptcy than if they negotiate a new repayment plan.  Consequently, homeowners report success in achieving the following types of  negotiated mortgage restructuring:
 

• Capitalizing delinquent payments on top of the present principal balance,  allowing the consumer to repay these delinquent payments slowly over the whole  term of the loan;
• Giving the homeowner up to four years to repay, in installments, delinquent  amounts, with no interest accruing on these back due amounts;
• Lowering the interest rate for a certain number of years or even for the remaining term of the loan, thus reducing monthly payments without lengthening  the term of the mortgage;
• Lengthening the term of the loan, thus reducing monthly payments (but  increasing the total interest payments over the term of the loan);
• Substituting some other more valuable property or asset for the home as  collateral for the mortgage, thus putting this substitute property at risk of   foreclosure, but protecting the home; or
• Some combination of the above forms of loan restructuring, such as allowing  back due payments to be paid gradually, lengthening the term of the loan, and  lowering interest.

Refinance the Home Debt
If the home was financed at one of the high interest rates that prevailed during the early 1980s, refinancing at a  lower interest rate and/or with a longer payment  period can greatly reduce monthly payments and bring them within reach. Moreover, refinancing a low  interest first mortgage and high interest second  mortgage into a low interest first mortgage can also reduce payments. Advocates should keep in mind, however, that many refinancing schemes are frauds. Even  legitimate refinancing options that look like an improvement on closer inspection are far more costly than the existing mortgage. The major disadvantages to  refinancing residential debts are the increased finance charges that result from extending the repayment period,  the possibility of having to pay points, the  additional closing costs, and  prepayment penalties on the old mortgages. The feasibility of refinancing depends on whether the homeowner can obtain a loan at  a reasonable rate, usually from a savings bank, a commercial bank, a credit union, or a legitimate mortgage company. Most finance companies and certain mortgage  companies do not make  residential loans at reasonable rates and terms.

When foreclosure is threatened, a homeowner may wish to contact a local realtor to obtain an appraisal of the home or even list the home for sale. Doing so  provides the owner with information about the home's marketability and its likely sale price, without necessarily obligating the owner to sell. Most homeowners do  not want to  give up their home, and but sometimes no other solution exists. Selling the  house may be painful, but it is always a better solution than letting a bank sell  the house. If they find a buyer, homeowners may sell their homes privately before a foreclosure sale takes place.
 

Consider Filing Bankruptcy
Homeowners who are about to lose their homes should carefully consider filing a  petition in bankruptcy. This can stop  the foreclosure process and allow them time to regroup and try to work out a plan to keep the home. Bankruptcy may also  help them cure past defaults and make  future payments. However, the bankruptcy option is complicated and it is a good idea to seek professional assistance from an  attorney board certified in  bankruptcy.

Deed in Lieu of Foreclosure
Homeowners often will be tempted to turn over their deed to the creditor instead  of fighting the foreclosure. This  is generally a good idea only if the borrower will receive something from the creditor in return for saving it the trouble of  foreclosing. For example, if the home's value exceeds the amount of the indebtedness, the homeowner may want to ask the creditor to agree not to seek  further collection remedies. By turning  over the deed to the mortgage holder, the consumer may forfeit any right to equity in the home. Similarly, the consumer may  have valid claims or defenses against the creditor that would be lost by turning over the deed. If the consumer does offer the creditor a deed in lieu of foreclosure,  make sure that there is a written agreement giving them sufficient time to vacate the premises in order to find alternative housing and move in an orderly fashion
 

Additional Resources on Foreclosure Prevention
Surviving Debt:  Counseling Families in Financial Trouble, National Consumer Law Center (Boston), 1992.

This page is based on information provided as a service of the National Consumer Law Center and the Federal Trade Commission.  This information  is provided as a public service by the Law Office of Jim McMillen.

When you buy a car, truck, or other vehicle on credit, you should be aware that, until you have made the last payment, your creditor retains important rights in the vehicle. These rights are established by the  contract you signed and by the law of your state. Your failureR to make timely payments on the vehicle carries serious consequences. Your creditor will then have the right to "repossess" -- take back --  your car without going to court or, in many states, without warning you in advance. However, your creditor's right to repossess your car is subject to some limitations. In particular,  state law places limits on how your creditor may repossess the vehicle and resell it to reduce or eliminate your debt. If any rules  are violated, your creditor may lose other rights against you, or even be required to pay you damages. For further information about the rights discussed generally  below, and about your state's specific repossession requirements, contact your state consumer protection agency or your private attorney.

SEIZING THE CAR
 Normally, your creditor has legal authority to seize your vehicle as soon as you "default" on your loan. What constitutes default will be stated in your contract, but  failure to make a payment on time would certainly be an example. However, if your creditor has agreed to accept your late payments or to change your payment  date, the terms of your original contract may no longer apply. Such a change in your credit contract may be made orally, in writing, or, sometimes, simply by your  creditor's repeated acceptance of late payments without complaint. Once you are in default, the laws of most states permit the creditor to repossess your car at any  hour of the day or night, without prior notice, and to come onto your property to do so. However, when seizing the vehicle, your creditor may not commit a "breach  of the peace" by, for example, using physical force or threats of force. Taking your car over your protest or removing it from a closed garage without your permission  also may constitute a breach of the peace, depending on the law in your state. Should there be a breach of the peace in seizing your car, your creditor may be  required to pay a penalty or, if any harm is done to you or your property, to compensate you. Also, because of a breach of peace, your creditor may lose the  right to collect a "deficiency judgment." A deficiency judgment is the difference between what you owe on your loan and what your creditor receives when  reselling your vehicle. An attorney can give you guidance about how your state courts have dealt with these matters.

RESELLING THE CAR
Once your car has been repossessed, your creditor may decide to keep the car as compensation for your debt or to resell it in either a public or private sale. In any  case, generally your creditor must notify you about what will happen to the car. Under most state laws, your creditor must tell you if it wants to keep the car  because you have the right to demand that the car be sold instead. You may want to exercise this right if the car is worth more than what you owe on it. Most  creditors prefer to sell the car, however, rather than keep it. If your creditor chooses to resell the car at public auction, state law usually requires you to be  notified of the date so that, if you wish, you can attend and participate in the bidding. If the vehicle is to be sold privately, you are usually entitled to a notice of  the date after which it will be sold. In any of these circumstances, you may be entitled to "redeem" or buy back the vehicle by paying the full amount owed on it,  plus the expenses connected with its repossession, such as storage and preparation for sale. Some states have consumer protection laws that also allow you to  "reinstate" your loan. This means that you can reclaim your car by paying the amount you are behind on your loan together with your creditor's repossession  expenses. Check with your state consumer protection office or an attorney to learn what the laws are in your state. Any resale of a repossessed car must be  conducted in a "commercially reasonable manner." This does not mean that your creditor must get the highest possible price (or even a good price) for the vehicle.  A resale price that is below fair market value, however, may indicate that the sale was not commercially reasonable. A sale made according to standard custom in a  particular business or in an established market will be considered commercially reasonable in almost all cases. Failure to resell your car in a commercially  reasonable manner may give you either a claim against your creditor for damages or a defense against a deficiency judgment. (For an explanation, see the next  section.) Whatever method is used to dispose of a repossessed car, a creditor may not keep or sell any personal property found inside. (This does not include most  improvements made to the car itself, such as the addition of a stereo player or luggage rack.) Your creditor also may be required to use reasonable care to  prevent others from removing your property from the repossessed car. If you find that your creditor cannot account for valuable articles left in your car, you may  wish to speak with an attorney about your right to compensation.

PAYING THE DEFICIENCY
Any difference between what you owe on your loan and what your creditor gets for reselling the vehicle is a "deficiency." For example, if you owed $2,500 on the  car and your creditor sells it for $1,500, the deficiency is $1,000. In most states, a creditor who has followed the proper procedures for repossession and sale is  allowed to sue you for a "deficiency judgment" to collect the loan balance. Several states, however, have consumer protection laws that restrict creditors from suing  for a deficiency when vehicles or other similar consumer goods are involved. Your attorney or state consumer protection agency will be able to tell you whether this is  true in the state where you live. If you are sued for a deficiency judgment, you will be notified about the date of the court hearing. It may be important for you to  appear at this hearing, because it may be your only opportunity to use any legal defenses you may have. If your creditor breached the peace when seizing the  vehicle or failed to resell the car in a commercially reasonable manner, these may be defenses against a deficiency judgment. An attorney will be able to tell you  whether you have grounds to contest a deficiency judgment.

TALKING WITH YOUR CREDITOR
Because it is difficult to dispute a repossession once it has occurred, you should contact your creditor when you first realize you will be late with a payment. Many  creditors will agree to a delay, if they believe you will be able to pay later. Sometimes it may be possible to negotiate with your creditor to improve your  position. If you do reach an agreement to modify your original contract, be sure it is in writing so that it cannot be questioned later. You may wish to hire an attorney  or contact your local attorney referral service for low-cost legal help. However, your creditor may refuse to accept late payments and may demand that you return  the car. By agreeing to a "voluntary repossession," you may reduce your creditor's expenses in retaking the car, which you otherwise would be responsible for paying.  But remember, even if you return the car voluntarily, you still are responsible for paying any deficiency on your loan, and your creditor still may enter the repossession on your credit report. Commission.

IFYOU WANT TO KEEP YOUR VEHICLE
I f you want to keep your vehcile you should contact an attorney.  You may be  able to keep it by filing a plan of reorganization under the bankruptcy code.  Also, if your creditor violated the law an attorney will be able to assist you in retrieving you vehicle

Texas Lemon Law
Qualification: 4 unsuccessful  repairs with 2 occurring within shorter of 1 year or 12,000 miles, and other 2  occurring within shorter of 1 year or 12,000 miles from date of second repair  attempt; or 2 unsuccessful repairs of a serious safety defect  with 1 occurring within shorter of 1 year or 12,000 miles and other occurring within shorter of 1  year or 12,000 miles from date of first repair; or 30 calendar days out of service within  shorter of 2 years or 24,000 miles and at least 2 attempts made  within shorter of 1 year or 12,000 miles. Texas Lemon Law applies only to new vehicles. Texas provides for Arbitration, but  does not provide for payment of the consumer’s attorneys fees. The Manufacturers are normally represented by attorneys and individuals familiar with  the process. A consumer should consult with an attorney of their choice

Notification/Trigger: Written notice to manufacturer.

Auto Dealers have spent many years perfecting the art of separating consumers  from their money, and they have many tricks that accomplish that task admirably. Here are some of the ones that we have seen or heard about most frequently:

THE “SLIDE”:
The dealer inserts credit life insurance, credit disability insurance, or service contracts into the contract without the consumer’s knowledge or consent. Contrary to what the dealer  may say, you may not be compelled to purchase these products as a condition of obtaining financing.

THE “SWITCHED PRICE”:
The salesman quotes you one price for the car or for your trade-in and “mistakenly” types another number into the contract.

“SIGN HERE, HERE, AND HERE”:
The salesman presents you with the contract and, sometimes covering up the text, directs the consumer to sign in the necessary spots without reading the contract.  This is a frequent tactic to prevent the consumer from discovering one of the other “tricks”.

MISSING EQUIPMENT OR FEATURES:
The salesman will say that the car has certain features, trim line or engine-size, when it does not.

“THE NON-DISCLOSURE, ODOMETER DISCLOSURE”:
After the contract has been signed and the down payment made, a written odometer disclosure stating that the reading is not accurate is provided to the  consumer. Frequently, the consumer never notices.

“YO-YO SALE”:
The dealer gives the car to the consumer to take home and, after the consumer shows it off to friends and relatives, the dealer informs the consumer that the  financing wasn’t approved and the consumer needs to come up with more money. Frequently, the financing was never applied for or the dealer knew it would not be approved.

HIDDEN DEALER PROFIT:
Dealers charge a fee for filing the necessary papers with the Department of Motor Vehicles. Be certain to ask about these fees before you agree to a final price.  Remember that they are negotiable, and if you chose, you can file the paper work yourself. Another place that dealer’’s hide their profits is in fees for services such  as “Predelivery Inspection” or blatant charges such as “Additional Dealer Markup” or “ADM”.

“LITTLE OLD LADY FROM PASADENA”:
Remarkably, sometimes car salesmen do not tell the truth about the history of a car.

THE “DO OVER”:
 The salesman says that it was necessary to do the papers over, followed by the “sign here, here, and here”. Frequently things were changed or added since the prior version.

BLANK SPOTS:
The consumer is asked to sign the contract with blank forms that are later filled in by the dealer.

Your best defense against these scams and others is to carefully read your contract before you sign. If you do not understand anything, ask if you can take it with you  and give it to somebody that you trust to read and explain it to you. If the dealer refuses, walk away. It is better to let the deal pass than to agree to something that  you do not understand and that the dealer does not want you to understand. Do not sign any contract if there are any blanks that are not filled in, and make them  put EVERYTHING that is part of the deal into the contract.

If you believe that any of these scams have been perpetrated upon you, seek legal assistance as soon as possible.

What is the Deceptive Trade Practices Act?

The Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) became law  in 1973. It protects consumers by prohibiting certain false, misleading, and  deceptive business and insurance practices, unconscionable actions, and breaches  of warranty.

The act is enforced by the Texas Attorney General, who can seek a court order  prohibiting further deceptive practices. A private citizen  may also seek damages  for certain acts and practices listed in the DTPA.

What Does the DTPA Cover?

The DTPA covers most consumer transactions.

The act provides that "false, misleading, or deceptive acts or practices in  the conduct of any trade or commerce are hereby declared unlawful." This broad  language allows the DTPA to include protection for everyone from individuals to  most large businesses.

The DTPA includes a "laundry list" of 25 prohibited practices. A consumer who  relied on one of these practices to their detriment may sue under the act.

A few examples of prohibited practices include: representing that goods are  original or new when they are actually deteriorated, reconditioned, reclaimed,  used, or second-hand; knowingly making false or misleading statements of fact  concerning the need for parts, replacement, or repair service; and representing   that work or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced.

I Think My Problem Is Covered By the DTPA. What Next?

You should first make a reasonable effort to have the violator correct the problem. Send a letter demanding correction of the problem. Explain exactly  what the violator must do to satisfy you. Be as clear, specific, and factual as possible. Send the letter by certified mail, return receipt requested, and be  sure to keep a copy.

Give the person or business to whom you are complaining a reasonable amount  of time to make good. If they flatly turn you down or seem to be stringing you along, you may have to take legal action.

Do I Need a Lawyer?

Individuals (but not partnerships or corporations) may represent themselves  if they wish. For very small amounts of damages, it may be an option for you to file  suit and represent yourself in small claims (Justice of the Peace) court.

In general, your suit must be filed within two years after the false,  misleading, or deceptive practice occurred. You MUST give written notice to the alleged  violator before you file suit. The alleged violator then has 60 days to  respond with a settlement offer.

You should, however, strongly consider hiring an attorney to represent you because DTPA language and procedures are often complex and may be confusing.

What Can I Recover Under the DTPA?

First, the DTPA provides for recovery of economic damages. If a court finds  the wrongful conduct was "knowingly" committed, it may award up to three times the  amount of economic damages, as well as damages for mental anguish. If the  act was committed "intentionally," the court may award up to three times the  economic damages. if you prevail, you will be awarded court costs and attorney's fees.

Note that a consumer may face certain defenses and even be liable for certain  damages if he or she loses a DTPA lawsuit. If a court finds an action by a  consumer was brought in bad faith or for the purpose of harassment, the  defendant may be awarded all attorney's fees necessary for defending the action  as well as court costs.

Never Buy Home Repairs from Door-to-Door

Many low income and elderly Americans are targeted by scam artists who use high  pressure tactics to sell unneeded and overpriced contracts for "home improvements." Often they charge more than their  customers are led to believe.  And then, when the consumer refuses to pay for shoddy or incomplete work, the  contractor or its closely affiliated financial institution,  attempts to force payment by placing a lien on the consumer's home and making threats.

How Consumers Can Protect Themselves
There are several basic steps  one can take which can prevent a problem from arising:

• Never deal with any door to door contractors or buy repairs advertised on  TV. Deal with local trades people recommended by friends or reputable building supply stores.
• Before agreeing to hire any home improvement contractor, get at least a  second estimate for the same work from another contractor.
• Get a written contract or estimate describing the work, the price, the responsibility for cleaning up, the price, and the hourly rate for any added work.
• Get references for the contractor and speak to those references. Ask about satisfaction and any problems that arose.
• Take a look at other work performed by the same contractor.

If problems have developed with a contractor's work, you should  immediately take steps to protect your interests, such as:

• Obtain an estimate from a professional detailing how much damage was done by  the contractor and the value of whatever services were rendered.
• Take detailed pictures of the work or damage left by the contractor and date them. These photos can be used in court to show the nature and extent of the  problem.
• Hire an expert (architect, reputable contractor, etc.) to look at the work for quality and compliance with specifications. The expert can also provide an  estimate regarding the fairness of the price for work completed, the extent of physical damage, and its cost to repair.
   

Deceptive Sales Tactics
Home improvement contractors use several methods of targeting consumers: with phone calls, flyers, advertisements, and door-to-door sales. Often, they use "bait  and switch" tactics, offering low prices for installed items like windows, home siding, and swimming pools, then telling the consumer the item is out of stock and  can only be replaced with a  high-priced substitute. Or the contractor may claim the item is more expensive than advertised because it has to be custom made to fit the consumer's home.

They may misrepresent that the repair is specially priced because the home is selected to model the repair. Energy savings, health benefits, and value added to the home are often misrepresented.

Such contractors are prepared  when a customer objects and often resist when a customer tries to cancel a contract. One frequent tactic is to misrepresent to the  customer that the deal can't be canceled because certain items already have been ordered or custom made for the job.

Another ploy is to use more than one contract for a single repair in order to  confuse the home owner. There is a "cash" contract that doesn't contain  financing  terms, although the deal is intended to be financed. A consumer should be alerted if the salesperson promises or offers financing, credit terms, or  mentions payment amounts.

At other times consumers will be presented at the outset with an installment contract. Attention should be paid to the price terms  discussed. Deceptive  contractors often put higher prices in the contract than discussed with the consumer, or add extra hidden charges. Frequently contractors do not allow an  opportunity or sufficient time for the consumer to read the  contract. The work required by the contract should be clearly readable and  should contain explicit  specifications, standards, and brands, so that the consumer knows exactly what work the contractor is promising to perform.

Complaints About Shoddy Work
The most frequent complaint about home improvement contractors is of overpriced and shoddy work and for jobs left unfinished after the contractor is fully paid. The  terms of home improvement  contracts should not require complete payment until after a project is finished. In such cases a consumer should not pay the final  installment until the work is satisfactorily completed. But there are ways some contractors try to avoid this  requirement.

Consumers are often asked by unscrupulous contractors to sign a document certifying completion before the contractor has completed the work or when the  work is unsatisfactory. Sometimes this paper is hidden among other papers, and other times the contractor claims that he needs the signature for some other  purpose. Such misrepresentation can be grounds for legal action and may provide  the consumer with a defense against any creditor who tries to collect payment for  the contract

If a bank or finance company writes a check for payment for the work, the check should be payable to the order of the contractor and the consumer jointly.  consumers should never indorse the check over to the contractor before satisfactory completion of all the work.

Consumers should be aware of other factors regarding workmanship. These  include: 1) Whether the contractor obtained all the necessary building permits. 2)  Whether the contractor's work complies with state and local building codes. 3) Whether the contractor violated any norms of the building trade. The local building  inspector should be called as soon as there is any question about  this. Where such practices were involved, consumers will have a stronger basis on which to challenge the contract.

LIENS: When a Consumer's Home May Be at  Stake
Consumer’s should be aware of the fact that, when they sign a home improvement  contract, the contract itself may grant a lien on their home to the contractor, bank or finance company.

Even where the contract doesn't give a lien, the law generally gives the contractor a right to put a lien against the property. The most common of these liens is called a  "mechanic's" lien. When a lien is placed on a consumer's home it can prevent the property's sale and may  result in a foreclosure.

If the consumer refuses to pay because of a dispute regarding the contractor's work, either the contractor or the lender will probably rely on the lien to try to  force the consumer to pay, and may even try to foreclose.

If a lien or a foreclosure is involved, the consumer's best recourse is to consult a lawyer who can carefully examine the state's lien laws. Such laws are often  complex, but their very technical requirements may offer some form of  relief for consumers if the contractor failed to comply with the law.

Warranties and Unfair Practices
Just because a contractor disclaims  responsibility for shoddy work doesn't mean  he can get off the hook without liability. A contractor who makes any kind of representations, promises, descriptions or guarantees, either in writing or orally,  cannot avoid them. These are called "warranties." The terms of the contract specifying the work to be done are important and should be closely examined to  see whether they contain any provisions that promise a standard of performance, materials or products, specifications, or a guarantee.

Oral promises are just as binding, though they may be harder to prove. Witnesses who were present and heard the discussions would help to prove oral promises.  Any of the above may give the  consumer a claim for the contractor's breach of warranty.

Even when a contractor does not make any oral or written guarantees regarding  work quality, most states recognize the existence of an implied warranty.   Generally, there is an implied agreement (warranty) by law that the contractor will complete all work according to the standards of the trade, or in a "workmanlike"  manner. Part of this standard generally includes the requirement that all work must comply with applicable building codes. Failure to meet these standards could be  grounds for the consumer to refuse to pay the entire amount.

A contractor who has lied about the true nature, benefits or cost of a proposed job during the sales pitch, tricked a consumer into signing a completion certificate  or signing over the loan check before completion, or lied about  cancellation rights may have violated the state's unfair and deceptive acts and  practices statute

If this is the case, the consumer would have a claim against the contractor or a defense if the contractor is suing the consumer. It is important for a lawyer to  determine whether there are any violations of the state's deceptive trade practices law. An increasing number of lawyers will handle these cases with  no up front fee,  collecting their fee from the creditor and as a percent of the consumer's recovery.

Third Party Lenders
Often the contractor arranges for the consumer to  get a loan through a finance company or a bank. Problems with the lender can  then arise if the contractor does  shoddy or incomplete work, because the lender  will claim that the consumer owes the full amount he or she promised to pay for  the work. In most cases, especially  where the contractor has arranged for the  loan, the FTC Holder Rule will make any subsequent party holding the contract (i.e. the lender) liable for all claims and  defenses the consumer may have against the contractor.

Sometimes the connections between the contractor and the lender are more apparent than in other cases. Things to look for include:
(1)  Whether there has been an ongoing relationship between the contractor and the  lender; (2) The frequency with which this lender finances this contractor's  work; (3) Documents by one party containing the other party's name preprinted  into them; (4) Knowledge by the lender of previous problems with this  contractor's  work for other customers; (5) Commissions or kickbacks from one  party to the other; (6) Ownership of one party by the other.

The Consumer's Ability to Cancel a Contract by Giving WRITTEN  Notice
The federal government and most states have passed laws designed to protect   consumers from unscrupulous door-to-door salespeople.  These laws may allow a consumer to cancel a contract within a certain amount of time (usually 3 business  days) after a sale in the consumer's home by giving  written notice to the contractor or lender.

These laws usually require that  a written notice of these rights and a form for canceling be given to the consumer at the time of sale. If the notice is not given, or  not given properly,  the time to cancel may continue until 3 days after a proper notice has been given. Thus, the consumer's opportunity to cancel may remain  open. It is  important for a lawyer to determine, at the earliest possible time, whether the consumer still has a right to cancel the contract.

In addition, the federal Truth In Lending Act often provides a consumer the right to cancel a home improvement contract and prevent a lien from being placed on the  home. This law also requires a very accurate disclosure of credit terms to the consumer and requires the contractor to provide the consumer with a notice of  the  consumer's right to cancel the contract within 3 business days.

This right also remains open beyond the three days (but only up to three years) if there is a defect in the disclosures, the notice or if the notice is not given. It is  extremely important to consult a lawyer in these cases because, if the contractor violated the law, the consumer may be able to void the lien on the home  (such as a  second mortgage), prevent a foreclosure, and reduce the amount, if any, that the consumer owes the contractor or lender for the work. The consumer may  even be  entitled to recover money from the contractor or lender as damages.

What To Do When a Dispute Arises
A consumer victimized by an  unscrupulous contractor should consult an attorney  immediately. An attorney may be able to help by finding defenses against any lawsuit brought by the contractor or lender and possibly by finding claims that the  consumer has for damages suffered as the result of the contractor's conduct.

References for Consumers
Sylvia Porter, New Money Book for the 80's (1979) Doubleday & Co., Garden City NY. 283-292.
McCleary, E. "How to Avoid Home-Repair Rip-Offs," Consumers Digest Vol. 32 (March/April 1993) pp. 30-32.
Lyons, P. "Home-Repair Rip-Offs: How to Avoid Them," Ladies Home Journal  Vol. 109 (Oct. 1992) p. 85.

Be Wary of Open-Ended Debt
&  Door-to-Door Sales

Door-to-door sales have long been a source of problems for consumers. Shoddy or incomplete workmanship in home improvements services, price-gouging,  deception about  financing -- all are commonplace problems in the door to door  sales world. Recently, new products, and a new twist in financing are showing up at the door

The sale of over-priced satellite dishes and water conditioners seems to be the latest fad. Meat sales with a free freezer and vacuum sales have been a form in the  past. Adding to the exorbitant cost is a common financing arrangement for these products: the sellers do not use a fixed term contract, but rather arrange for a  special "credit card" account to be opened especially for that purpose.

So what's wrong with that? Well, for starters, the consumer will sign on the dotted line without a clue as to what the bottom line price will be to buy the  product.  And that bottom line is liable to be more expensive than if it were  financed by a fixed term contract.

Questionable Sales Tactics
In Florida, companies with names which sound like municipal water utilities send  out flyers targeted to the elderly:  "CONSUMER ALERT: Important Bulletin." The bulletin warns consumers that  "chemicals used to disinfect your drinking  water may be increasing your risk of cancer, liver and kidney damage! Please have your water tested today. There is no cost or obligation. This is a public awareness program."

Not surprisingly, those tests -- conducted with elaborate tools -- show  dangers in the water, even bottled water. But, "fortunately," the sales representative can offer  the consumer a water conditioner costing $2000 to $2700  to correct the problem. (A comparable product is available from a retailer for  $350 to $400.)

In some small towns and rural areas, the new hot product is a satellite dish,  to bring new television vistas to the viewer. For prices in the $4000 to $5000  range,  the consumer can purchase the satellite dish and a year of programming.  (Compare those prices to the results of one advocate's check with local dish  dealers to find prices ranging from $100 to $1200.)

The New Financing Arrangement to Beware of
Door to door salespeople marketing big-ticket items have always offered to  arrange financing -- and it  usually was not the best credit deal available. But many financing arrangements being used today have a new twist. Instead of getting a  contract that calls for repayment of a fixed amount over a specific period of time, the seller signs the consumer up for a limited-use credit card with credit cards  usually issued by affiliates set up by finance companies.

Closed End Credit vs. Open End Credit
To understand the rub for the consumer with the credit card purchase, it is  necessary to understand the difference between "open-end" and "closed-end" credit. "Closed-end credit" is a specified amount of debt, which is repayable  according to set terms over a specified amount of time. Car loans, for example, are typically closed-end:  $5000 at 12% for 48 months at $131.67/month. Since  those terms are fixed at the outset, the consumer can know that the bottom line cost will be $6,320.16, of which $1320.16 is the financing cost. The Truth in  Lending Act requires that  consumers be given all of this information at or before the time they sign the loan. The most critical part of the TIL disclosure statement  for this car loan  would look like this:

ANNUAL PERCENTAGE RATE
The cost of your credit at a yearly  rate. -  12%
FINANCE CHARGE
The dollar amount the credit will cost you.  - $1320.16
AMOUNT FINANCED
The amount of credit provided to you or on your behalf. - $5000.00
TOTAL OF PAYMENTS
The amount you will have paid after you have made all payments as  scheduled. - $6320.16

The typical credit card, on the other hand, is a prime example of "open-end  credit." When you initially get the card, you probably have no charge on it at all.

The amount of debt fluctuates as you add charges to it, and make your monthly  payments on it. It is therefore impossible, with legitimate open-end credit, to  be  able to tell the consumer at the beginning what anything except the interest rate will be: the "amount financed" will change with what is charged; the "finance  charge" as a dollar amount will depend not only on the amount you charge, but also on when you make your payments, and how much you choose to pay  (most  open-end accounts specify only "minimum monthly payments").

Since none of that is known when you open the account, no bottom line "total of payments" can be disclosed, either. So Truth in Lending has different disclosure  requirements for open-end credit. There are quite a few things which must be disclosed, but the important price information might look like this:

STATE MONTHLY PERIODIC RATE ANNUAL PERCENTAGE RATE METHOD OF COMPUTING THE  BALANCE FOR PURCHASES ANNUAL OR MEMBER- SHIP FEE TRANS- ACTION FEE MINIMUM FINANCE CHARGE
Tx 1.47% 17.64% Average daily balance (including new purchases) NONE NONE $ .50 All other states 1.487% 17.85%

Not nearly so informative, is it? For this reason, some lenders prefer to  structure credit as open-end, even if it doesn't really seem to be open-end. (Truth in  Lending has a legal definition for open-end credit.) This is called "spurious open-end credit," because it is really closed-end credit disguised as open-end so  that consumers will not see the bottom line cost of the transaction before they commit themselves. Obviously the more expensive the deal, the more incentive  there is for unethical sellers and lenders to play this game of deceit.

The lack of information about the bottom line cost to consumers is not the only disadvantage built into these deals. Typically the minimum monthly payments are  set at an amount which will take much longer for the consumer to pay off than a comparable closed-end loan. Longer terms mean higher cost in finance charges,  so the invisible bottom line cost is likely to be higher than it would be if it were financed by a regular closed-end loan.

The Cost To Consumers
Here's how one satellite sale to an elderly  man played out:
The purchase price for the package was slightly over $4000,  and the salesman  told him the payments would be about $55 per month, though when  the account was opened, the minimum monthly payment was fixed at $77 per month.  The cost  information on the application looked like the second chart above, except the APR was 18%. That was all. But if the lender had given the real  information  about the transaction, it would have looked like this:
ANNUAL PERCENTAGE RATE
The cost of your credit at a yearly rate. - 18.72%
FINANCE CHARGE The dollar amount the credit will cost you. - $4476.18
AMOUNT FINANCED The amount of  credit provided to you or on your behalf. - $4046.00
TOTAL OF PAYMENTS
The amount you will have paid after you have made all payments as scheduled. - $8522.18
Payment Schedule
110  monthly payments of $77 and 1 final payment of $52.18
Not only was the bottom  line price more than double the cash price, but he would have to make 111 monthly payments to pay off the satellite dish. This senior had  no way of  knowing he was committing that much of his income for over 9 years (until he was  89 years old) to pay it off.

And do the buyers get any real advantages from the "credit card" that  finances these purchases? Not really. Even in theory, they cannot be used widely.  Commonly, only retailers linked to the deal will recognize them. While follow-up purchases may be allowed, (e.g. chemicals for the water conditioner, and  programming for the satellite dish) they are comparatively minor, and readily available elsewhere, probably more cheaply. But it is also common for these types  of accounts to set the credit limit at (or even below) the amount of the initial purchase, so there is no room on the account for the consumer to make additional  charges in any event -- at least not for a good long while.

What Victims of Open End Credit Scams Should Know
Alerting consumers in your community about these kinds of scams is the best  prevention. But if you know of a consumer who has been caught, there are potential legal remedies. First, the sales pitch often includes misrepresentations  and perhaps even fraud, which would be subject to challenge under the state unfair and deceptive trade practices act. For the water conditioner, these might include  leading consumers  to think the seller was affiliated with a government or a utility, or misrepresenting the need for the product, or exaggerating its merits.
For  the satellite dish, the salesman may misrepresent the cost of the programming package, or what's available with the package. In either case, misrepresentations  concerning the cost of the financing package are likely. Even  if the salesman "low-balls" the monthly payment, simply making a misrepresentation that he can  "get you a good deal" is arguably a deceptive  statement.

Legal Remedies
As door-to-door sales, these transactions are subject to a 3-day cooling off period. If the seller does not give proper disclosures concerning the right to cancel  the deal within 3 days, or if it installs the goods prior to the end of the cooling off period, the purchaser may  still be able to cancel the deal, or secure damages  under state UDAP or Home Solicitation Sales Acts (HSSA). If the purchaser's home is taken as security for  the financing, or a lien attaches to the home as a  result of the financing, the 3-day cooling off period under the Truth in Lending Act may apply in addition  to, or instead of, the state HSSA. If TIL's cooling off  period applies, and the seller or financier violated certain of the Act's requirements, it may be  possible to cancel the transaction any time within 3 years  of the sale, being obligated only to return the property or its value.

The general disclosures in "spurious open-end" transactions may also be  challenged under the Truth in Lending Act, as courts are willing to look at the  true  nature of a transaction, and not be controlled by labels alone. Similarly, state credit laws, such as retail installment sales acts, may distinguish  between  open-end and closed-end credit, and miscasting a transaction may run afoul of them.

Under Texas Law you have three days after the contract is signed in the home sale to revoke the contract.

This page is based on information provided as a service of the National Consumer Law Center and the Federal Trade Commission.  This  information is provided as a public service by the Law Office of Jim McMillen.

Under United States law and Texas Law, it is unlawful "to use any telephone  facsimile machine, computer, or other device to send an unsolicited advertisement" to any "equipment which has the capacity (A) to transcribe text or images (or both) from an  electronic signal received over a regular telephone line onto paper." The law allows individuals and businesses to sue the sender of such illegal "junk mail" for $500 to $1,500 per copy.

We can help you recover damages for those unsolicited Junk Faxes

If you are age 50 or older, you should take special care when  buying living trusts. Your age group is often a special target of sales-persons  whose goal is to sell you something without carefully analyzing your needs.

lt is easy enough to become a victim. Living trust sales are a growing area of consumer fraud. Con artists make millions of dollars every year selling unnecessary trusts. Each year,  thousands of consumers lose from $500 to $5,000 through the purchase if living trusts. Often.families face potentially greater costs after the consumer's death, resulting from problems associated with the trusts.

How do I protect myself?

• Take time when making your decision. Do not fall victim to high  pressure, "act immediately" sales tactics.

• Seek the advice of someone trustworthy and knowledgeable.  Contact your accountant, estate planning attorney, banker or financial  advisor.

• If you conclude that a trust might be right for you, deal directly with a licensed Texas attorney who has substantial expertise in estate  planning.

What are some examples of false or misleading statements about living trusts?

Con artists promote their businesses by making false or  incomplete statements about the probate process, guardianships, and the taxation of estates. Examples include:

• "Living trusts save taxes." This is  misleading. Most Texans' estates will face no death taxation at all. If  your estate is taxable, a will can accomplish  exactly the same tax savings as a  trust at a much cheaper cost.

• "Living trusts help you avoid contested wills." Misleading. Trusts, just like wills, are subject to attack on  the basis of lack of capacity, undue influence, and fraud.

• "Living trusts avoid the expense of a guardianship." Misleading. A living trust is helpful to avoid the expense of a guardianship in case of your future  incapacity. In many circumstances, a durable power of attorney is a simpler and less costly way to achieve the same  goal.

• "Attorneys charge from three to 10 percent or more to probate  your estate." False. Rarely do attorneys charge as much as  three percent. In  fact, most attorneys do not charge a percentage of the estate  but instead charge an hourly rate for their work.

• "Probate takes years to complete." Misleading and very  unlikely. Non-taxable probate estates generally only take a year or  less to complete.  In most circumstances, the administration of a living trust is no more time efficient than the administration of a will in probate.

• "Probate requires excessive time and money." False. Texas has adopted a simplified probate process under the Texas Probate Code. These  independent administrations, accounting for more than  80 percent of Texas probates, involve only one court hearing and the filing of an inventory.

• "Everyone should have a living trust." False.  While a living trust is appropriate for some people, the cost of creating, funding, and  administering a living trust outweighs the benefits for most people.

How do con artists operate?

Con artists make false and misleading statements to people through telemarketing and mail solicitations, door-to-door sales, "free" seminars and workshops, and  advertisements. They often try to meet in your home  through offers of a free living will, a free power of attorney, or a free  "estate analysis."

The State Bar of Texas has issued an advisory opinion regarding  advertising and promoting living trusts for attorneys. Attorneys are not supposed to advocate a  living trust over a will or vice-versa. They should give you the pros and cons of both documents.

If you feel that you have been a victim of a con artist or living trust salesperson, or an unethical attorney, please contact the State Bar  of Texas at (800)932-1900.  While non-attorneys are not subject to State Bar rules, they may be practicing law without a license.

Financial institutions are engaging in an assault on  the rights of consumers to secure the protections afforded them under law through the use of mandatory, binding arbitration clauses unilaterally  inserted in adhesionary contracts with consumers, without negotiation or consent. All across the country, banks, financial institutions and even  automobile dealers are including standardized terms in contracts of adhesion which provide that consumers agree to resolve any disputes by arbitration and waive their rights  to trial by judge or jury. The purpose and intent of such clauses is to insulate unlawful, unfair, or deceptive  practices from any meaningful review by making it difficult to obtain  discovery, impairing consumers’ ability to proceed on behalf of a class, and to reduce  compensatory and punitive damage awards.

The arbitral forum can be very unfair to consumers and is deficient in a number of ways: discovery is not available as a matter of right, the  proceedings are secret, the arbitrator need  not follow precedent or explain the reasons for his or her decision, and the decision is immune  from judicial review, except on very narrow grounds, even if it is wrong as a matter of fact and law and results in manifest injustice. It can also be  inordinately expensive. Although it may be faster than litigation, there is no public policy served by a process which results in speedy injustice.

 The Dangers of Mandatory Arbitration Clauses

Consumer protection in this country is in jeopardy, in particular in the extremely   important areas of credit and finance. All across the country, banks, financial  institutions and even automobile dealers are including standardized terms in  contracts of adhesion which provide that consumers agree to resolve any disputes by arbitration and waive their rights to trial by judge or jury. The purpose and intent  of such clauses is to insulate unlawful, unfair, or deceptive practices  from any meaningful review. In arbitration, it is difficult to obtain discovery,  and consumers  may not be able to proceed on behalf of a class, obtain injunctive relief against unlawful practices, or receive awards of punitive  damages.

Arbitration is supposedly favored as a method of resolving disputes. But that preference is derived from a series of Supreme Court cases between commercial  entities that had bargained for the speed and efficiency of  arbitration, so the court was merely enforcing their contractual agreement. Some courts are now using that  supposed preference to require arbitration in cases  involving consumers who did not know about, negotiate, or accept the clause.

There simply is no public policy favoring arbitration as a mechanism of dispute resolution but only a policy favoring the enforcement of the parties’ freely  negotiated agreements. The arbitral forum can be very unfair to consumers and is deficient in a number of ways: discovery is not available as a matter of right, the  proceedings are secret, the arbitrator need not follow precedent or explain the reasons for his or her decision, and the decision is immune from judicial review,  except on very narrow grounds, even if it is wrong as a matter of fact and law. It can also be inordinately expensive. Although it  may be faster than litigation, there is  no public policy served by a process that results in speedy injustice.

The following are claims that people commonly  have, but don't realize. If any of these things apply to you, please call or  send us copies of your papers. You may be entitled to recover substantial amounts of money.

Collection Letters and Practices
Please send us copies of any collection letters. Many debt collectors and  collection lawyers routinely violate the Fair Debt Collection Practices Act.  This is a  Federal law which gives you certain rights and prohibits certain methods of attempting to collect debts. This may entitle you to recover money (up to $1,000).

Typical violations include:
(i) Adding unauthorized collection charges;
(ii) Threatening to report a debtor to the Internal Revenue Service if payment is not forthcoming;
(iii) Threatening criminal  prosecution (mainly on bad checks); (iv)  Getting the debtor's bank account number and debiting it through various devices;
(v) Initial demand letters which insist on payment within less than 30 days;
(vi) Sending large numbers of letters purporting to come from attorneys or collection agencies when that is not the case;
(vii) Names suggesting that the  debt collector is connected with the government or  a credit bureau;
(viii) Buying up bad debts and offering misleading "credit rebuilding" plans, generally  involving issuing a credit card and putting the bad debt on it;
(ix) Buying up  debts that have been discharged in bankruptcy or are past the statute of limitations and trying to collect them; (x) Collection notices on student loans  which misstate your legal rights;
(xi) Any  collection letters sent to you after  you have filed a bankruptcy proceeding seeking to collect debts that arose prior  to the filing are illegal. (xi) Demands for attorney's fees prior to suit when  contracts provide for fees only if suit is filed.

Another common violation is changing the default date used to compute the  seven year period a bad debt can remain on your credit report. A collection  agency or bad debt buyer is required to use the same  date as the original  creditor. Often, they use a newer date, which allows the entry to remain on your  credit report longer.

We have recently seen many attempts to collect checks dishonored more than 3  years ago, which is the applicable statute of limitations. Collecting  time-barred debts is a Fair Debt Collection Practices Act violation.

Payday and Title Loans
We are interested in looking at any loan at more than 100% interest, such as  "payday loan" and "title loan" transactions. We believe that at least half of  the loan documents used by payday lenders and title lenders violate the Truth in  Lending Act or other laws, entitling the borrower to twice the finance charges,  not less than $100 nor more than $1000 per loan.

Many collection letters sent in connection with "payday loans" are also  illegal.

Also, any threat to bring a criminal bad check charge on a payday loan check is illegal.

Mortgages
Mortgage companies have a statutory obligation to respond to complaints and  requests for explanations of accounts. Often, they don't. This failure may entitle you to $1,000.

In a sale of real estate, the seller's lender charges a fee for recording the  release of the mortgage, shown on the payoff statement. The title company also  charges a fee for recording the release of the  mortgage, shown on the HUD-1. One of the fees is fictitious, probably that charged by the lender.

You pay off a mortgage and a charged a fee for a statement showing how much  you owe the mortgage company.

You have a mortgage at more than 10% interest.

You have a mortgage loan on a 2-4 unit building in which you reside.

Credit Cards
We are interested in cases in which a credit card issuer promised a low rate  on balance transfers and then raised the rate. We are also, looking at companies that delay the application of payments causing consumers to incur different charges.

Insurance
We are looking for people that bought "industrial" life or accident  insurance. The life product is sometimes called "burial" insurance. These are  small-balance policies for which the premiums are collected by door-to-door salesman, and are especially prevalent among minorities. We are interested in  challenging discrepancies between this product and more conventional products under the Civil Rights Acts.

We are looking for insureds of "substandard" carriers whose vehicles were  involved in accidents and were repaired by their own insurance companies in a  shoddy manner.

We are also looking for minority plaintiffs whose auto theft loss claims were  arbitrarily denied by substandard insurers.

We are interested in insurance premium finance contracts. Many do not conform  to Truth in Lending.

Autos
Minority purchasers who sign retail installment contracts at more than about  12% that were purchased by one of the major auto credit companies (GMAC, Ford  Motor Credit) may have discrimination claims.

You were given a choice between a rebate and below-cost financing and took the financing (not the rebate).

You bought a car, signed financing papers, and the dealer later told you to  come up with a larger down payment or sign a contract with different financing  terms. This is a very common practice. It is  often illegal. It is known as the Yo-Yo sale.

You had a car repaired at a shop selected by a "substandard" insurance company and the repairs were shoddy.

You purchased a car after responding to an ad seeking people who wanted a car  and had bad credit or no credit.

You purchased insurance supplements as part of car rental transactions. These  do not include loss damage waiver.

You rented a car and were charged a higher price based on where you live.

You have a good driving record but pay a lot for car insurance because of  where you live.

You bought a car with significant prior accident damage, or that was a rental  car, and it was not disclosed to you. (We have seen many such cases; with  increasing demand for used cars, dealers are tempted to do this.)

You had insurance premiums added to your balance because the bank claimed you  didn't have insurance.

You were charged for "VSI Insurance" or "Vendor's Single Interest" insurance on a car loan.

Medical Bills
You are being dunned for a balance allegedly remaining after an insurer or  benefit plan paid the entire "reasonable and customary" charge (and the bill is  for more than a deductible or co-payment amount).

Other Loans and Installment Contracts
You were turned down for a loan or other credit without being issued a  written statement of the reasons. This is a violation of the Equal Credit  Opportunity Act.

We are interested in looking at recent small loan transactions in which (i) a  security interest was taken in personal property, (ii) the security interest is  very vague (e.g., "household goods," "television" (without make or serial  number)), and (iii) either the customer was sold property insurance or there is a charge for filing fees or nonfiling insurance. These may involve Truth in  Lending or other violations.

A finance company solicited you to borrow more money, and then refinanced your loan instead of making a second loan. The refinancing may have been much more expensive than a second loan.

You were charged a "nonfiling fee" or for "nonfiling insurance" on a loan or installment contract.

Junk Faxes
We are interested in cases where you have received junk faxes from companies with which you did not have a previous relationship.

Other
Uncompensated overtime is a major source of complaints. Another is the failure to extend benefits to long-term "temporary" employees.

We are looking for unauthorized charges for insurance, service contracts on credit accounts.

Online Forms
When you send a letter you should always keep a copy and send it Certified Mail Return Receipt Requested. It will help you to establish that the person or company received the letter.

DECLAIMER - The forms below are provided as samples only. They are not offered as legal advice, Each situation is unique and your should obtain competent legal advice of your attorney. The sample answer will assist you to meet the deadline of responding, but  it does not complete your obligations under the law and rules of court.  Law and rules of court are very complex - you  should contact an attorney immediately- you should not addition filings before obtain legal advise - it may cause irreparable damage to you case.  Even attorneys avoid representing themselves -there is old adage “A lawyer who represents himself has a fool for a client”. 

RECOMMENDED LINKS

DEBT COLLECTION

• Debt Collection - A great site by Bud Hibbs, Consumer Advocate. Be sure to download his fee book while you are there. Bud is not a lawyer, but he  is no doubt the leading advocate for consumers facing debt problems.
• Consumer Justice- Another Great site by Bud Hibbs.

CONSUMER ACTION HANDBOOK

CREDIT CARD AGREEMENTS ON LINE

PEOPLE’S LAWYER

CONSUMER WORLD

PEOPLE’S LAW SCHOOL- CONSUMER CREDIT - by Jim McMillen.

CHANGING WORLD OF CONSUMER CREDIT - by Jim McMillen

OTHER LINKS OF VALUE

Auto and Lemon Law Link

Defect Resources

• Recalls on your vehicle
• Recalls by Alldata
• Known Defect with your vehicle
• Similar Problems with other people
• Potential defects being investigated on your vehicle

Advice

• Auto leasing guide
• Auto lease calculator
• Car Talk with Tom & Ray
• National Highway Traffic Administration

Law
 

• Lemon Law Page

Research

• Autopedia
• Boat Values
• Car buying tips
• Center for Auto Safety
• Consumers for Auto Reliability and Safety
• Center for Auto Safety
• Federal Trade Commission
• Fraud Info Center
• RV-America
• RV- Camping World
• RV Corner
• RV Doctor
• RV- Good Sam’s
• Vehicle Defects
• Vehicle Manufactures 800 numbers
• Vehicle Manufacture’s Web sites
• Vehicle Values -Edmund’s
• Vehicle Values - NADA
• Vehicle Title History - Carfax
• Taylor’s Automotive Tech Line

BANKRUPTCY

• National Association of Consumer Bankruptcy Attorneys
• ABI World

CALCULATOR

• Caculator.com
• Foreign Currency Conversion

CHILD SUPPORT CALCULATOR

• California
• Divorce.net

CONSUMER GROUPS

• AARP
• Consumer Federation of America
• Consumer Reports
• Consumers Union
• National Association of Consumer Bankruptcy Attorneys
• National Association of Consumer Advocates
• National Consumer Law Center

CREDIT REPORTING

• How to read a credit report
• How to dispute a credit report
• Victims of Credit Reporting

FIND A CONSUMER LAWYER

• Auto and Lemon Lawyers
• Bankruptcy Attorney - National Association of Consumer Bankruptcy Attorneys
• Consumer Attorney

FRUGAL LIVING

• Dollar Stretcher
• Frugal Living
• Frugal Life

INSURANCE

1. Policy Holders Of America

MORTGAGE

• Mortgage 101

GENERAL CONSUMER SITES

• Consumer Center for Debt Management
• Consumer Complaints
• Consumer Law Page
• Federal Trade Commission
• Junk Faxes
• Rip Off Report
• Letric Law Library

Office Practice

Address and phone number of any State or Federal Court
Court Net
Federal Courts

Get the County for any US City
County Lookup

Electronic Reference (Under the "Phone Books, Area Codes and E-mail" category)
International Dialing Codes
Area Codes and Splits

Speed up outgoing mail delivery
United States Post Office Zip Codes

Ship and Locate Packages
Federal Express
UPS

Check your private e-mail via the Web from anywhere in the world
E-mail forward

Send a FAX from your computer to anywhere on the planet via the Internet
EFAX
Receive faxes and/or voicemail via the Web, anywhere in the world
EFAX

Pinpoint an Address on a Map and Obtain Directions
Mapquest
Yahoo Maps
Mapsonus

All the reference material You would Ever Need
RefDesk
Itools
Re-Quest
Washington University Law School

Find the exact time of sunrise and sunset on any particular date at any location
Sunrise/Sunset

Legal Publications
Legal Publications

Newspapers
Newstrawler - (retrieves the summaries of articles from the archives of hundreds of online information sources around the world like newspapers, journals and magazines --including legal sources)
Paperboy (Newspapers from Around the World)

Business Journals
Bizjournals

News from Local TV Stations Around the Country
TVNews

Books
Abe’s
Amazon
Barns & Noble

Cite Cases Correctly
Blue Book

Writing Aids
Element of Style
Merriam-Webster Dictionary
Roget’s Thesaurus
Your Dictionary - Over 1,000 Dictionaries in over 200 languages

Legal Terminology

Financial Terminology

Free Legal Publications on Line
Federal Judicial Center- (Complex Litigation Manuel, Scientific and Expert Evidence, Attorney fees, and many more)

Legal Forms
U.S. Legal Forms
Prepaid Legal Documents online (most are free)
Findlaw Legal Forms
General Legal Practice
Quickforms
Lawsmart
Corporate Forms
Internet Legal Resource Guide
Internet Legal Resource Main Index
Legal Ease
Tax Forms (Estate & Personal)
Brief Reporter LLC (Briefs)
Limited Liability Corporation
 

Language Translators
Direct Translation Page
Logos

Medical Resources
Grays Anatomy
Merck’s Manuel
Home Medical Guide
Health Answers
JAMAS
Medicine Net
Southern California Orthopaedic
Texas Physicians
Texas Board of Nursing
Medscape
Emergency Medicine
National Library of Medicine
Drug List
Occupational Safety & Health
State by State Medical Record Cost 

Investigation
 Finding Data on the Internet

Locate People
Yahoo People Search
Switchboard
Whowhere
Internet Address Finder
Bigfoot
Allinone
Ultimate White Pages

Locate Someone by Telephone Number
Findlaw Reverse Directory
Reverse Lookup
Search Gateway
The Ultimates
TelDirect
Anywho
World Wide Yellow Pages

Information About People
Publicdata ($$$)
Crimcheck ($$$)
Bigbook
Knowx
Black Book Online
Freeability
Ancestry
Free Pubic Records

Information About Opposing Counsel
Findlaw
Martindale-Hubble
Attorney Find
Attorney Locate

Information on Federal Judges

About the Supremes

Information on Law Professors

Information on Companies
EDGAR database
Free EDGAR
Thomasnet
CEOEpress
Japanese Companies
 

General Research
Docusearch
Craig Bell’s Information Page
Dave’s World
Marks & Katz (Information on 1st Amendment, Criminal law and other legal sites)
Calculate a Home Value
On Line Appraisal
Paycheck Calculators
Auto Safety
Insurance Information
Arbitration
Subrogation
Superior Information ($$$)
Free ERISA -
Locate Banks
DNS Look Up

Government Research

State and Local Governments on the Internet

United States Federal Government
FirstGov Provides searchable access to information from the US government plus US state and local governments. Information can also be browsed by category
Google US Government Search  Special edition of the Google search engine that limits results to pages from US government Web sites
SearchGov.com  Search engine that crawls US government and state government Web sites.
usgovsearch  Searches across US government Web sites and information from the NTIS (National Technical Information Service).
Government Information on the Internet   Not a search engine but a well-respected book about finding government information online

.For those wanting to employ a directory specialized directory resource to track down specific kinds of government information, here is a sampling of what is an overwhelming quantity and variety of these types of resources on the Internet.
Governments on the Wolrd Wide Web (WWW)
Governments on the WWW: Table of Contents
Worldwide Governments on the WWW
State and Local Government on the Net [United States]
The Council of State Governments [United States]
State and Local Governments [United States] A Library of Congress Resource Page
 

International Documents
Foreign Governments
European Governments On-Line
Provinces and Territories [Canada]
Australian Government Information
Australian State and Territory Governments
Yahoo! Directory: Government > Countries
GOL-INs Website [Government Online International Network]
AdmiNet - World - Governments
Foreign Government Resources on the Web
 

National government information
National information networks
United Nations
Law and Government Resources for 230 Countries Heiros Gamos Law Web Resources
Foreign Governments on the Internet
Index to Comparative / Foreign Governments
Web Resources for Foreign Law and Governments
Information Resources for Foreign Governments

Foreign National Governments | International Governmental Organizations Non-governmental Organizations | Other Notable Sites
Poly-Cy Guide to Internet Resources for Political Science International Government Links
Government Resources -- Foreign and International

Foreign & International
Government Resources
Treaties -- Databases & Statistics -- Other Resources
National Governments of the World
Government Documents Library Foreign Governments
Foreign and International Law
Foreign Law: Legal Research Resources on the Internet
Foreign Government Web Resources

General Resources and Guides; Governments; Constitutions; Laws; Treaties; Statistics
AsylumSupport.info

Government Links
Area Studies, Comparative Politics: elections, parties and on a Country by Country Basis
Countries and Governments See also page on International Relations and Politics Internet Resources
Global Nature Conservation Organizations Global Intergovernmental Organizations (IGOs)
Global Non-Governmental Organisations (NGOs) Global Nature Conservation Organizations
European Nature Conservation Organizations European organizations
European Nature Conservation Organizations by Country National organizations
Global Intergovernmental Organizations

Financial  Information
Home Value Search

Miscellaneous
Qui Tam Information
State Laws on Taping Calls

Legal Research
Patten Search
Case Summaries by Email
Internet Legal Resourc
U.S. Supreme Court Case Audio of Cases

Legal Search Sites
LEXISONE
FindLaw
AllLaw
GUSlaw
Jeff Flax’s Law Page
Lawguru
LawRunner
LibClient
MegaLaw
Villanova
Law Sources
Rominger Legal
HierosGamos
Internet Tool for Lawyers
LLRX
Quest

 Government Sources
Federal Government Page
Avalon Project (Historic Documents, history  and Diplomacy)
History Net (Great for History buffs)
US Army
US Airforce
US Navy
US Marines
US Coast Guard
US CIA
US Federal Emergency Management
Links to Law Enforcement Agencies On Line
Federal Judicial Center
National Center for State Courts
National Information Center (Federal Reserve)

Law Review Articles
Law Review Project
Find Law

First Amendment
Electronic Signature Law

Search the web for Resources
 WEB Search Engines
ABA Law Links
Anzwer
AskJevees
Bizwiz
Dogpile
Excite-
Galaxy
Google
Hotbot
Law Research
LookSmart
Lycos
Microsoft Network
Snap
UWM Search
Webcrawler
 

Consumer Law Sites
Internet Bankruptcy Law Library
Credit Reports How to Read them
Debt Collectors (Bud Hibb’s Site- Download his book while you are there)
Fair Debt Collection -FTC Staff Letters
Insider Reports
Junk Fax Organization
National Association of Consumer Advocate
National Association of Consumer Bankruptcy Attorneys
National Consumer Law Center
National Center on Poverty Law
National Foundation Consumer Credit
Privacy Times
Public Justice (Great Brief Bank)
Lender Liability Page
Office Comptroller of Currency
Auto Safety Check
Experian Auto Check
Fair Credit Reporting Act
Government Statistics
Creditboards
Wards auto (Info on Auto Industry)
Home Values
Identity Theft Org
Privacy Rights
Bank Information

Support Services
Software for Attorneys
Timeslips (time Keeping Software)
Timematters/Billing Matters
Casemap/Timemap Series
HotDocs (Create Pleadings in Your Style)
Bankruptcy Software
Visionary Free Trial Presentation Program
PDF Alternatives
Law Tech Information
Law Practice Today

Sites for Your Special Legal Needs
Attorney Store
Lawyer and Judges Publishing

Telephone Dictation
 by e-mail or the Web the transcription of your dictation. (About $ 3.50 per page, free trial
Cybertanscriber
The Dictation Station

Free Telephone Conference

Expert Referral Services
Experts4Law
Expert pages
Expert Law
Consolidated Consultants
LawInfo
Expert Witness
Claims.com

Locate Local Court Report or Support Service
DepoNet
Esquire
National Association of Process Servers

Depositions without Traveling
Video Conferencing Public Room
National Legal Video

Register Agents for Service of Process

Class Action Services
First Class

Arbitration Services
American Arbitration Association

Special Services
Terraserva (Photos of every place on earth)

Discovery Matters
Tips on Locating Experts
Experts
Finding Experts
Picking Experts

Trial Matters
Howard Nation on Trial Practice
Test Your Ability to Influence Others

Voir Dire
Check Jury on Political Contribution

Opening Statement
Introduction to Opening Statement

Direct Examination
Direct Examination
Strategies for Planning

Cross Examination
Cross Examination
Check List for Medical Expert
Permissible Scope Medical Expert
How to Cross Exam and Expert in Psychology
Cross Examination of  a Handwriting Expert
Cross Examination of a Child Witness
Latent Finger Print Cross Examination
Cross Examination (Power Point)
Cross Examination Recovered Memory

Evidence
Daubert on the Web
Daubert, Robinson and Kubro

Legal Articles
Utah Bar Litigation Articles
Advanced Trial Handbook

Class Actions
Class Action Litigation
Class Action Com
Class Action Notices
Securities Class Action

Jury Verdicts
More Law
National Association of State Jury Verdicts
Verdict Search

Jury Trends
Cornell Statical Inquiry
Bureau of Justice Statistics
Institute for Civil Justice

Juries
Information About Juries

General Assistance
Great Quotes
Visual Words
Lawyer Express
Auto Repair Info
Archive of Web Pages
Public Law Library
Website Capture

Preparation for Trial
Finding Graphics or Photos
Webseek
Lycos
Amazing Picture Machine
Image Finder

Judgments
Interest Rates

Taking Care of Yourself

Bill Auditors

CLE for Attorneys that Represent Individuals
Texas Bar (Open to All Attorneys)
Trial Lawyers College
National Consume Law Center
National Association of Consumer Advocates
National Association of Consumer Bankruptcy Attorneys
American Association for Justice

CLE Over the Net
Texas Bar CLE
CLEUSA

Finding the Right Job
Legal Employment Search
Washlaw
Monster
Law Jobs
Yahoo
Legal Jobs
Employlawyer (Nations Largest database)
CALLaw
Chicago Legal Search
Hieros Gamos
Microsoft Law Forum
LawInfo
Law Match
Government Law Jobs
FindLawJobs
New York Law Journal

Market Your Practice
Guerrilla Marketing
Law Marke

Find Office Space

Free Book on Line

Greatest Trial Lawyers and Trials

Gerry Spence - America’s Greatest Trial Lawyer
Gerry Spence Homepage

Famous Trials

TEXAS CONSUMER PROTECTION STATUTES

The Deceptive Trade Practices Act (DTPA) is Texas's primary consumer protection statute. The statute prohibits a list of deceptive trade practices deemed to be false, misleading or deceptive. The DTPA gives consumers the right to sue for damages. Consumers who win a suit brought under the DTPA, are entitled to attorney's fees, and if they show the person acted "knowingly," they can receive damages of up to three times their damages. Other consumer protections statutes tie in to the DTPA and allow consumers to sue under the DTPA for violation of those other statutes.

Deceptive Trade Practices-Consumer Protection Act:

• · http://www.statutes.legis.state.tx.us/Docs/BC/word/BC.17.doc

• Other Consumer Protection Statutes, targeting specific industries and specific transactions:

• · The Timeshare Act:http://www.statutes.legis.state.tx.us/Docs/PR/word/PR.221.doc
• · Contest and Gift Giveaway Act:http://www.statutes.legis.state.tx.us/Docs/BC/word/BC.621.doc
• · Business Opportunity Act:http://www.statutes.legis.state.tx.us/Docs/BC/word/BC.51.doc
• · Health Spa Act:http://www.statutes.legis.state.tx.us/Docs/OC/word/OC.702.doc
• · Telephone Solicitation Act:http://www.statutes.legis.state.tx.us/Docs/BC/word/BC.301.doc
• · Regulation of Telephone Solicitation Act:http://www.statutes.legis.state.tx.us/Docs/BC/word/BC.302.doc
• · Regulation of Consumer Reporting Agencies Act:http://www.statutes.legis.state.tx.us/Docs/BC/word/BC.20.doc
• · Credit Services Organizations Act:http://www.statutes.legis.state.tx.us/Docs/FI/word/FI.393.doc

• The Insurance Code applies to only insurance related matters. Similar to the Deceptive Trade Practices Act, the Insurance Code prohibits false, deceptive and misleading acts and practices. People who are injured by a violation of this law may recover damages, possible treble damages, as well as attorneys' fees.

541 of the Texas Insurance Code

• · http://www.statutes.legis.state.tx.us/docs/IN/word/IN.541.doc

• The Debt Collection Act covers any conduct by a person trying to collect a consumer debt.

• The Act prohibits practices that are false, deceptive, harassing or abusive. It supplements the federal debt collection act that applies to only third party debt collectors who are collecting debts for someone else.

Debt Collection Act:

• · http://www.statutes.legis.state.tx.us/docs/FI/word/FI.392.doc

• The Fair Debt Collection Practices Act:

• · http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf

• Related Federal Consumer Laws:

• · Liability for Lost or Stolen Credit Card - §15 United States Code  1643
• · Liability for Unauthorized Credit Card Charge - §12 Code of Federal Regulations  226.12
• · Liability for Lost or Stolen Debit Card - §15 United States Code  1693
• · Billing Errors -§15 United States Code  1666
• · Billing Error Rules - §Code of Federal Regulations  226.13
• · Credit Reporting - §15 United States Code  1681

• The Motor Vehicle Warranty Performance Obligations Statute contains what is known as the lemon law. The lemon law gives the owner ofa defective car the right to obligate the manufacturer of that defective car to buy it back. A lemon is defined as a car that has a serious defect that has been reported within the warranty term and has not been repaired in a reasonable number of attempts. The lemon law begins with section 6.07 of article 4413(36). "Warranty Performance Obligations" is the heading that begins the lemon law portion of the statute, but keep in mind, the actual phrase "lemon law" is not used in the statute.

Motor Vehicle Warranty Performance Obligations (a/k/a Lemon Law):

• · http://www.statutes.legis.state.tx.us/docs/OC/word/OC.2301.doc

• The Manufactured Housing Standards Act sets forth provisions to protect consumers of mobile homes.

Manufactured Housing Standards Act:

• · http://www.statutes.legis.state.tx.us/docs/OC/word/OC.1201.doc

• The Business and Commerce Code, which is the basic commercial law of Texas, is a uniform law, which in effect means that many states have adopted the same code.

• · Chapter 2 Sales: http://www.statutes.legis.state.tx.us/docs/BC/word/BC.2.doc
• · Chapter 2a Leases: http://www.statutes.legis.state.tx.us/docs/BC/word/BC.2a.doc
• · Chapter 3 Negotiable Instruments: http://www.statutes.legis.state.tx.us/docs/BC/word/BC.3.doc
• · Chapter 4: Bank Deposits and Collections: http://www.statutes.legis.state.tx.us/docs/BC/word/BC.4.doc
• · Chapter 9: Secured Transactions: http://www.statutes.legis.state.tx.us/docs/BC/word/BC.9.doc

• Title 4 of the Finance Code provides consumer protections to those individuals who borrow money or finance purchases of goods or services.

Title 4 of the Finance Code: Consumer Loans, Pawn Shops, Credit Sales of Goods and Services, Motor Vehicles and Manufactured Housing

• · Consumer Loans: http://www.statutes.legis.state.tx.us/docs/FI/word/FI.342.doc
• · Pawn Shops: http://www.statutes.legis.state.tx.us/docs/FI/word/FI.371.doc
• · Credit Sales of Goods and Services: http://www.statutes.legis.state.tx.us/docs/FI/word/FI.345.doc
• · Motor Vehicles: http://www.statutes.legis.state.tx.us/docs/FI/word/FI.348.doc
• · Manufactured homes: http://www.statutes.legis.state.tx.us/docs/FI/word/FI.347.doc

• The Landlord and Tenant provisions of the Texas Property Code, provide consumers protections against wrongful refusal to return security deposits, utility cutoffs, retaliatory evictions, landlord repairs, and other practices.

Chapter 91 and Chapter 92 of the Property Code: Landlord and Tenant

• · Chapter 91: http://www.statutes.legis.state.tx.us/docs/PR/word/PR.91.doc
• · Chapter 92: http://www.statutes.legis.state.tx.us/docs/PR/word/PR.92.doc

• The Residential Construction Liability Act sets forth the procedures consumers need to follow should they wish to make a claim against a home re-modeler or builder. This statute does not provide a cause of action against a builder or re-modeler; rather, it establishes notice requirements that must be met before any lawsuit is filed.

Residential Construction Liability Act:

• · http://www.statutes.legis.state.tx.us/docs/PR/word/PR.27.doc

• The Texas Fair Housing Act protects consumers in the housing market from unlawful discrimination.

Texas Fair Housing Act:

• · http://www.statutes.legis.state.tx.us/docs/PR/word/PR.301.doc

• The Occupations Code regulates various professionals and industries, such as acupuncturists, dentists, health spas and credit services.

Regulated Professions and Industries:

• · http://www.statutes.legis.state.tx.us/?link=OC

• Examples of Regulated Professions:

• · Acupuncturists: http://www.statutes.legis.state.tx.us/docs/OC/word/OC.205.doc
• · Veterinarians: http://www.statutes.legis.state.tx.us/docs/OC/word/OC.801.doc

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We have represened individuals and families for 35 years in debt defense, unfair debt collectionFDCPA), fair credit reporting (FCRA),  class actions, consumer litigation, personal injury, malpractice,  auto fraud law, antitrust, racketeering laws,  truth in lending, fraud, wrongful foreclosure, accounting issues, illegal lending practices, deceptive trade practices, commercial and other complex cases. Our cases have involved a broad spectrum of  issues.

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Jim McMillen is trial lawyer who offers last minute trial assistance to attorneys who represent individuals and families in litigation of cases they have prepared. He will try jury cases as first or second chair for other attorneys who need assistance.

In addition to private practice Jim is an adjunct  professor of law at the University of Houston. He is a frequent public speaker at continuing legal education programs for attorneys and judges and the Peoples’ Law School.  He has been a guest on Numerous TV and radio programs. He has written  numerous article for magazines and newspapers for national publication. He is a guest speaker for public groups on consumer issues as his schedule permits.

The Law Offices of Jim McMillen are dedicated to representing consumers who are victims of deceptive and unfair business practices and assisting other attorneys who represent individuals and families.

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