Portland Legal Services - Joanne Reisman, Attorney at Law
My Blog

Getting a Creditor to Report That You Paid or Satisfied a Judgment Against You!

Judgments can be entered against you for debts you owe and even if you have paid the Judgment it can still show up in public records as owing. The court needs to enter a document which states that the Judgment has been satisfied.  Otherwise this will still be reported as a Judgment that is owed and will adversely effect your ability to apply for loans and get credit.

A creditor who has fully collected the Judgment has a duty to file a Satisfaction of Judgment with the court under Oregon Law.   Not all creditors understand this duty, especially creditors like ex-spouses who are not professionals.

There does not appear to be an obligation to file a partial satisfaction of Judgment but you can ask for this to be done.  You might want to do this in a situation where you have been ordered to pay spousal support and/or child support which are essentially new amounts due every month and a payment that satisfies the part of the Judgment that came due the prior month. 

ORS 18.225 provides:

When the money award portion of a judgment has been fully satisfied, the judgment creditor must: 

 (a) File a satisfaction document for the full amount of the money award portion of the judgment in the county in which the judgment was entered; and

 (b) Deliver to the judgment debtor a satisfaction document for the full amount of the money award portion of the judgment for every county in which the judgment has been recorded under ORS 18.152 (Establishing judgment liens in other counties).

https://www.oregonlaws.org/ors/18.225

When a Judgment Creditor fails to file the satisfaction of Judgment with the court,  the Judgment Debtor can file a motion with the court to ask the court to issue a satisfaction of judgment pursuant to ORS 18.235.  https://www.oregonlaws.org/ors/18.235.   If the court finds that the Creditor's failure was "willful"  the court can also award Attorney's Fees.  There are additional rules if the Judgment involves support.  Get an Attorney to help you with this!








Public Bodies, The Invisible Defendants in Auto Accident Cases and the Importance of Tort Claims Notices

There can be situations where some or all of the blame is unjustly placed on an injured driver for causing an accident and the conditions of the roadway, where the accident happened, are not fully considered.  A thorough accident investigation should identify all parties who might share the fault, including whether a public body, charged with building and maintaining the particular roadway, failed to perform some act that they had a duty to perform.  Public bodies have a lot of discretion as to how they build and maintain roadways so it is not automatic that they will have liability for their lack of preemptive action.  Public bodies can decide they don't have money to rework a poorly graded section of road, but they may still have a duty to install less expensive signs warning drivers of the sunken grade ahead.

To ascertain all possible causes of an automobile accident and properly assign liability, one may need to hire an accident reconstruction expert to review the situation and give their professional opinion as to all contributing causes of the accident.   A complete investigation should also look into whether the roadway where the accident happened has had a lot of accidents in the past and look at whether the construction of the roadway or the signage or the posted speed are materiel factors in the high rate of accidents.

Such an investigation could take a while.  To preserve one's right to sue a public entity who may later be proven to be culpable in the accident, it is extremely important to send a generic Tort Claims Notice Letter to all public bodies who could possible have responsibility within180 days (six months) of date of the accident.  You don't have to know for certain that there is any liability on the part of a public body to send such a letter.  All the letter has to say is that this is a Tort Claims Notice Letter and that there was an accident (and give the date, time, location, information as to the cars and drivers involved, etc) and state that the agency may be named in a subsequent lawsuit for damages.

The cost of sending the letter is very low.  Conversely the consequences of not sending the letter can be costly.  Sending such a letter gives the injured party time to explore all theories of liability which may help lead to a full recovery of damages.  It should be a standard practice to send a Tort Claims Notice Letter in all accidents just to preserve one's right to add a public body as a defendant later on should it prove necessary or desirable to do so. 

This is not something that a lay person should do on their own because it is critical to identify any and all public bodies which may have jurisdiction over a particular section of highway.  Also one needs to be able to prove that the letter was sent on a certain date and was sent to the correct address and the appropriate responsible party. One needs the assistance of an Attorney to insure that this is done correctly.

Whether or not a full investigation including the cost of hiring an accident reconstruction expert is justified or needed is a decision best made on a case by case basis.  It is advisable however to keep one's options open until the extent of the client's injuries and the question of liability has been fully explored.

Keep in mind that in Oregon one can only recover one's damages if one is either not at fault or has 50% or less of the total assigned partial fault.  Adding a public body to the case who may share in the fault, may make the difference as to whether one can recover damages at all.

Recreational marijuana and child custody

Now that Marijuana is legal for recreational use in Oregon we need to discuss considerations that parents should make about their use of Marijuana and disputes this might lead to in Custody and Parenting time matters.  Just like alcohol use, the court is going to want to know that a parent's use of any substance when they have children in their care, doesn't impair their ability to parent their children and does not put their child at risk. 

It should be common sense that you don't want to be intoxicated when driving or otherwise supervising the transportation of your minor children.   Not only is it illegal, but it puts your minor passengers at great risk of being injured or killed because your impairment means that an accident is more likely to happen.

But how about when you aren't driving.  When you and the children are out using public transportation.  Is it OK then to indulge?  Generally it is not a good idea.  You have young children with you that you need to be constantly supervising.  You can't properly supervise young children when  your senses are impaired.

How about when you have the children visiting during your parenting time?  Again, abstaining from recreational Marijuana use as well as alcohol use when it is your turn to parent is highly recommended especially if you have a very acrimonious relationship with the other parent. Don't give them any reason to haul you back to court and put limits on your parenting time. 

What about medicinal use?  There is a big difference between CBDs and THCs.  CBD only products can be safely used with no psychoactive effects.   Even CBDs with a small amount of THC can be used without noticeable impairment if the amount of THC is very little.  The problem is that the Judge you are going to appear in front of may not know the differences.  So if the issue comes up you should be prepared to put on expert testimony about your medical need to use Marijuana products, the types of products you use and what if any impairment this causes.  Parents don't lose their right to parent when they are on any other prescribed pain medication so the mere use of Marijuana for medical reasons should not result in your losing your parental rights.  But you need to be prepared to address the issue if it comes up in court.  You also need to be honest with yourself as to whether the level of medical intervention you need is to the point that you are too impaired to adequately parent.

The best way to deal with the other parent's concerns about your use of Marijuana and your parenting time is to discuss this during mediation.  Most Oregon family courts offer a mediation process with trained family counselors where parents can try to work out agreements for parenting time and custody.  These agreements can address legal substance use.   It is in your interest to reach an agreement with the other parent that is in the best interest of your children and then stick to whatever you have agreed to.

PROPERTY DIVISION AND UNMARRIED COUPLES - A CAUTIONARY TALE!

The case of Staveland vs. Fisher , 25 OR App 210 (2018) demonstrates the disparity in the results between a trial court dividing property for an unmarried couples as compared to property division in a divorce. Under Oregon Law, by virtue of being married, there arises a presumption of equal contribution.  ORS 107.105. Accordingly, for married couples, it doesn’t matter what the parties say their intent was with respect to the property. It also doesn’t matter if only one spouse’s name is on the title.  It doesn’t matter if one spouse owned the property prior to the marriage (although in that case, normally only the appreciation of the property during the marriage would count as the marital portion to be shared).

For a married couple, the starting point in property division is that the court is going to  look at ALL PROPERTY owned during the marriage as the property to be split.  A spouse wanting to rebut the legal presumption of equal contribution is going to have a difficult up hill battle to prove that the two spouses did not equally contribute to the efforts in the marriage which fostered their ultimate financial state.  Keep in mind, by equal contribution, we do not mean that each spouse worked and brought home a paycheck.

The courts have long recognized that participation as a full time home maker counts as an equal contribution in a marriage.  Cases where a spouse is found to not have contributed equally tend to be extreme situations where the non-contributing spouse was completely absent from the household, perhaps due to mental illness and inpatient hospitalization, or the spouse’s participation was counter productive as in the case of a person suffering from some type of addiction who dissipates marital assets to support their addiction.

Contrast the situation with unmarried couples.  There is no presumption of equal contribution.  But rather the struggle is to prove what the parties intended with respect to property owned by either or both of them during their period of cohabitation.  As the Staveland case illustrates, this leaves the court open to make subjective conclusions based on a myriad of factors.  In the Staveland case the court ended up focusing on representations that the couple made during the cohabitation to conclude that the property bought solely by Mr. Fisher, the Dickinson House, but used as a joint residence, was intended by the couple to be a joint investment and consequently the court awards Ms. Staveland ½ of the appreciated value of the Dickinson House, which accrued during their cohabitation.   The court however refused to offset this award with any property interest being awarded to Mr. Fisher for the appreciation of the  Ainsworth house, used as a rental, which Ms. Staveland owned prior to and during the relationship.   The court again relied on evidence presented to determine that there was no similar intent to share the equity in the Ainsworth house.

So the lesson to be learned here is if you plan to live together with someone and have financial dealings, you need to put your intentions as a financial partnership IN WRITING to avoid an unexpected outcome.

    DO not assume that your relationship will last - statistically the odds are against that.

    DO not assume that living together means you will finalize your plans to get married.

    DO not assume the person that is all lovey dovey right now will still be generous and giving when you get around to breaking up.

    DO not assume that there is some kind judge who will figure everything out and make sure that fairness prevails over the facts of the case.

A DOMESTIC PARTNERSHIP AGREEMENT, PROPERLY DRAFTED BY AN EXPERIENCED ATTORNEY, CAN HELP UNMARRIED COUPLES AVOID THE PROBLEMS THAT AROSE IN THE STAVELAND CASE!


Tax Refunds and Bankruptcy - updated 2016

Tax time is here again and this is also the time of year that people struggling with debt consider bankruptcy.  It is important to understand the interrelationship between taxes and Bankruptcy.

First, filing and collecting your tax refund can give you the money you need to hire an attorney to file your bankruptcy.  So consider this if you are plagued with debts before you spend your refund check.

Second, if you are thinking about filing bankruptcy, it is usually best to have already filed your taxes and collected any tax refunds due to you before you file.  At a minimum, you need to estimate what your tax refund will be.  You want to make sure that your all of your property, which includes cash on hand or tax refunds owed to you, can be adequately sheltered by the exemptions you elect to use with your bankruptcy filing.  You are going to elect either the Oregon exemptions or the Federal Exemptions.  In some situations it may be necessary to collect your tax refund and use it to purchase or repair exempt assets before you file your bankruptcy so you can maximize your retention of assets.

It is perfectly acceptable to collect your tax refund in advance and use the money for your bankruptcy attorney fees, your living expenses, or needed medical care.  You can also use your tax refund to buy or invest in exempt assets.  For example, you might want to use the money to repair a home that is otherwise exempt.  You might use the money to buy a car which will be exempt or to repair an exempt vehicle that you already own. The trap you want avoid is having a tax refund owing that is more than the exemptions you can claim and losing that tax refund money to the trustee.

There are some expenditures that you don't want to use your tax refund money on.  Large payments to creditors right before filing your bankruptcy may be attacked by the trustee.  Large payments on debts within 90 days of filing can be set aside and the trustee will grab the money and redistribute it to all your creditors on a more equitable basis.  If you give the money to a business associate, friend, or family member to pay back a debt, the period of potential trustee scrutiny can be as long as a year.  Spending excessively on luxury items, trips and vacations right before filing bankruptcy could result in the bankruptcy court finding that you are abusing the bankruptcy process and dismissing your case.  So getting legal advice as to what types of expenses are acceptable and how to move your money and property around to maximize your use of the exemptions is an important pre-filing step.

The best thing to do is to consult with an attorney prior to making the decision to file a bankruptcy.  Once you have filed it may be too late to get help.  You generally won't be allowed to dismiss your bankruptcy and start over either.  Once the bankruptcy trustee realizes that there are assets that the trustee can seize and use to pay creditors, the trustee is unlikely to consent to a dismissal of the case.

New Oregon Law improves UM UIM Auto Insurance Coverage IF your policy is issued or renewed on or after January 1, 2016!

Very Very Important - All Oregonians will want to make sure their automobile policy is technically renewed or issued as close to January 1, 2016 as they can get it done.  Why?  

Well there was a new law passed this year that goes into effect as of January 1, 2016.   Known as Oregon Senate Bill 411, or referred to by us attorneys as the "UIM stacking legislation", this new law will actually improve your auto insurance coverage if your policy is  issued or renewed on or after January 1, 2016.   The law specifically increases the protection you have if you are in an accident where the other driver is at fault and the other driver's insurance is less then your insurance coverage or the other driver doesn't have insurance.

By law all auto insurance policies issued in Oregon have always been required to include a minimum amount of coverage called UM/UIM which is what pays your personal injury damages when the other driver has no insurance of lower insurance coverage limits. (Think of UM/ UIM as "under-insured" or "uninsured motorist protection") Currently all Oregon Auto Insurance policies must contain coverage of at least $25,000 per person/ $50,000 per accident.  (This means all policies will pay up to $25,000 to each individual that makes a claim but no more then a total of $50,000 for all payments made to all persons involved in the same accident.)  

Prior to this new law, the mandatory UM/UIM insurance, included in your automobile policy, usually did not pay you the full amount that the policy said it would pay.  This is because the law as, previously written, allowed your insurance company to first consider how much insurance the other driver had available to pay you, and count that insurance first, and then only pay you the difference. 

For example, if your UM/UIM coverage, that you had paid premiums to have, was say, $100,000.00, and you were in an accident where the at fault driver had $50,000 of liability coverage, you might think that you can expect both the $50,000, plus the $100,000, a total of $150,000, to be the total amount of funds to pay your damages.  (Assuming your injuries were such that you deserved that level of damages.)  But under the current law, your insurance company would tell you that you only have a maximum of $100,000 available consisting of the $50,000 from the other driver's insurance plus $50,000 more from your policy.  You don't get the full $100,000 you paid for on your policy because they treat the total amount as a guarantee of the amount you will get, including what you get from the other driver, so they don't have to pay you what you can get from the other driver.

This all changes as of January 1, 2016.  You will now legally be entitled to get, under the above example situation,  both the $50,000 from the at fault driver plus your full limit of $100,000 for a total of $150,000.   (Again, you have to still prove that your injuries are worth the full $150,000, but assuming you can do that, you have a larger fund to draw from.)   THE CATCH IS: The new law will not apply to you until your policy is actually renewed or newly issued in 2016!  So don't wait for your actual renewal date sometime later in 2016.  Call you insurance agent and find out what you can do to trigger an earlier renewal.


Modifying Child Support

Anyone paying or receiving child support can seek a review and modification at no charge through the Oregon Child Support Program.  This link will explain how to request a review and modification and when you are eligible to get a review:  http://www.oregonchildsupport.gov/services/pages/modification.aspx

You can request a review if it has been 35 months since the date the last order was entered or reviewed.  You don't have to wait 35 months if you can show proof that there has been a significant change of circumstance since your order was finalized. Some examples of significant changes are:
  • Physical custody of the child has changed
  • The needs of the child have changed
  • The number of children involved has changed
  • The income of one or both parents has change

If you want your child support reviewed or modified and it has not been 35 months and you are not sure if there has been a substantial change of circumstance, you can always contact an attorney.  An attorney can help you file a modification proceeding.  However this will involve paying attorney fees.   If you can get an administrative review you won't incur attorney fees.  So try contacting your local child support enforcement office first, to request a free review:  http://www.oregonchildsupport.gov/offices/pages/index.aspx

WARNING:  Once you request a review you should expect that this will launch a review and most likely a modification of your child support which may or may not give you a favorable result.  So, you should always try to estimate if requesting a review will help you or hurt you before you initiate the process.  The safest way to do this is consult with an attorney and have them help you with a preliminary child support calculation.  You will need to have your income information and a pretty good idea of what the other parent's income is.

You can do a calculation online using this on line child support calculator to get an idea of what the new support amount will be: https://justice.oregon.gov/guidelines/.  Be aware that there are administrative rules that allow rebuttals to the presumed support amount that you get from the online calculator.   This means that you may be able to argue that the support should be more or less then the default amount.   You will need the help of an attorney if you want to use any rebuttal arguments as this is a rather subjective area.  You really need an expert to guide you. This page explains the allowable reasons for requesting a deviation from the presumptively correct child support amount: http://www.oregonchildsupport.gov/laws/rules/docs/050_0760.pdf

Grandparent Visitation Rights under Oregon Law

There is really no such thing in Oregon as visitation rights solely based on the relationship of being a grandparent.  Oregon had attempted to create Grandparent visitation rights in the past, but the statute creating those rights was repealed after the landmark decisions in Troxel v. Granville,530 U.S. 57 (2000).   In the Troxel case the United States Supreme Court determined that parents have a constitutional right to rear their children free from the intervention of the State or a third party under normal circumstances.  There is a presumption that a parent acts in the best interest of their children so a parent's decision to limit visitation with a grandparent is presumed to be correct until proven otherwise and in examining the parent's decision the court must give great weight or great deference to the parent's decision and right to make that decision. 

The right of the parent comes first but may be limited if there is a showing the parent is not fit to make decisions about their children or that they are not fit to parent their children. (ORS 109.119 lists several factors that the court must consider before it can override a parent's decision.)  One must understand that most parental decisions will be upheld by the court due to the great weight that must be given to the parent's decision even if there might be a better way to raise or parent that child.  Parent's don't lose their constitutional rights to parent their children just because someone else may have a better idea on how the children should be raised.  So even if the intervening party that wants custody or visitation can show that they could offer the child better care or a better life, this would not be enough to force the biological parent to turn over custody or allow visitation.  It is not about the court considering whether a grandparent or another person could do a better job then the biological parent.  It is about the parent having a superior constitutionally protected right to determine how they raise their children and who their children associate with.  This right of biological parents cannot be easily disturbed.

Following the decision in Troxel. Oregon enacted a new statute, ORS 109.119, which is frequently called the "Psychological Parent" statute.  Essentially, this statute gives people that have developed a very close, almost parent like relationship with a child, the right to Petition in the court for custody or visitation with the child. This rather complex way to ask for visitation or custody is covered by ORS 109.119. Your can read the text at this link: http://www.oregonlaws.org/ors/109.119  Pay attention to the definitions in the statute that describe two types of relationships that can give rise to a right to Petition in the court.   One is called a Child-parent relationship.  The other and less significant relationship is called an ongoing personal relationship.  You need to have the facts in your situation which show that you have established one of these types of relationships to qualify to seek relief using this statute.  The language of the statute has been interpreted by court decisions that need to be read to fully understand what type of relationship would qualify and what type of relief that court is likely to allow.  So it is going to be necessary to talk to a family law attorney to figure out whether your situation will qualify and to get an idea of what you might expect the court to order if you file a petition.

Absent establishing a very close relationship as defined by ORS 109.119, that would give rise to the right to petition for visitation or custody rights under ORS 109.119, grandparents normally get to see their grandchildren when one of the biological parents brings them to visit. So the path of least resistance is for grandparents to work with the biological parents and set up the visitation.

To determine if you have any rights for court ordered visitation under ORS 109.119, you will need to consult with an attorney.  If you don't yet currently have the requisite relationship, an attorney can help you understand what steps you might be able to take to build that type of relationship so you can apply in the future.  Keep in mind that at least one of the types of relief you can seek under ORS 109.119 requires that your case has to be filed within 6 months of the time period when you had the requisite close relationship with the child.   So, depending on what part of the statute applies in your situation, you may need to file within 6 months of when your relationship with the child began to change.  In other situations you may have more time, but the safest course of action is to speak to an attorney right away so you don't miss an important deadline for filing.

Why you need a lawyer to help you settle your Personal Injury Claim

In most accidents, like when you are rear ended, it is not going to be an argument about who is at fault.  The argument is going to be about the amount of damages.  Insurance companies have a deliberate and carefully orchestrated plan to minimize how much they will pay out and it starts with the adjuster from the insurance company for the other driver car calling you and saying she or he is so sorry to hear about your injuries and they will take care of you - all you need to do is give them a recorded statement and sign some documents so they can view your medical records.  This is a trap designed to carefully document your post accident progress in a way that most favors the adverse insurance company (for the other driver).  Their goal is to pay you as little as possible.  They play on your emotions so you think they are being helpful and you will cooperate with whatever they ask for.  They will act so nice and even start talking about paying you money - all so you won't hire your own attorney.

Every case they can lowball means more profits for their company.  They can then throw up statistics at attorneys like myself to tell us our future cases aren't worth anything.  In the early 1980's I used to get offers of $10,000 pretty regularly to settle soft tissue injury cases like yours.  Now 30 years later I am lucky if I can offers of more than $1,500 to $3,000 and the insurance companies will battle like crazy to avoid paying a dime more.  They will spend far more to avoid paying out a claim then the amount they are arguing about not paying.   It is no longer about the cost of settling the case or the fairness of the damages paid.  It is about lulling accident victims into taking law ball offers when they don't know any better and making cases that are handled by attorneys as difficult and unprofitable as possible so that future claims can be settled as cheaply as possible.

We PI lawyers fight vigorously to stop the trend of low ball offers, unfair tactics, and cost prohibitive legal maneuvers.   We are willing to take cases up on appeal when necessary to protect the legal rights of consumers like yourself.  We fight for new laws that protect your rights by hiring lobbyists and going head to head with the well paid insurance lobbies every legislative session.

So by hiring a PI lawyer, preferably on that is a member of the Oregon Trial Lawyers Association (just ask), you will not only get a better settlement then you would on your own, even after paying a percentage as attorney fees, you will also stand up for your rights and the rights of other accident victims to get a fair and full settlement.

Understand that you have PIP coverage under your own Oregon insurance policy.  This is a mandatory no-fault additional coverage in all Oregon Auto Insurance policies.  What the other driver's insurance company does with yor claim doesn’t effect your right to this coverage nor will using it effect your insurance rates. This will pay for your medical treatment up to $15,000 and will pay for up to a year of treatment.  If you need to take time off of work, you may qualify for the lost wages that PIP will pay in addition to your medical bills.  (You need to be off work a certain amount of time to qualify.)   Your PI lawyer will see to it that you are able to take full advantage of your PIP coverage, so you can get the treatment you need and your lost wages while you recover.  You should not even consider settling your case until your injuries resolve.  You have up to two years before your case would need to be filed in the court so this is usually enough time to allow yourself to recover with time to spare that attempts can be made to settle the case.  Your chances of getting a fair settlement are much better if you first heal from your injuries and a demand package with complete information as to your treatment and medical bills is sent to the other driver's insurance company.  Your PI attorney will handle all of this for you.

As for car damages, if you have full coverage you can address the car repair or replacement by using your full coverage.  If you have a deductible you may need to pay it but it will be reimbursed later on.  If you don't have full coverage, a fairly new law (lobbied for by OTLA), now requires that the other driver's insurance company make you a fair offer immediately for the amount of your repairs or the replacement value of your car.  Your PI attorney can help you facilitate this.  Just don't be deceived that the other insurance companies willingness to settle your car damages is due to anything other then the fact that they are now obligated to do this under Oregon Law.  It is not a sign that your case will be settled easily without legal representation.  In fact, if they try to total your car they will still play all sorts of games trying to argue that your car isn't worth much. Your PI lawyer should be able to help you establish the fair market value of your car if it is totaled.

There are simply many advantages in hiring an experienced Personal Injury Lawyer as soon as you are able to contact one.  Most lawyer will talk to you about your case at no charge and will take your case on a contingency so there is no up front cost to you.  The professional experience they will bring to bare in handling your case against well funded insurance companies who will be doing everything they can to minimize your claim is invaluable.

Scam Calls and Emails - how to avoid being a Victim!!

To avoid becoming a scam victim regard any call or email that asks any personal, business or financial  information including a request to verify information as a possible scam!

Any legitimate callers or emailers will be willing to assist you in verifying that their calls or emails are legitimate.  If they are pushy,  anxious, evasive, or demanding when you ask questions or don't want to help you verify their identity or business legitimacy - they are scammers!

Here are the steps you need to take right from the start. 

  1. Just don't respond to any emails that request personal or business info.  Legitimate businesses that need your info will have a phone number and a person you can contact.  Just don't respond to any requests for information by email ever.  It is far too easy for people running international scams to send you emails with fake looking business logos and even fake return addresses.  Also when you respond you signal that they have contacted a real person and you become a live fish on the hook for them to play with.  You may also encourage them to further use your email address for spam.  If you have to respond, do so only to request their contact information.  But if you can tell who the business is from the original email, go to the next steps and don't reply.
  2. When contacted by phone, do not start answering questions or giving out information or any type - you start asking questions.
  3. Ask the caller to give you their full name, the name of the company they work for, the location and name of the office they are calling from, a working number that you can all them back on, and any extension you need to dial to get them back on the line.  At this point most scammers will hang up but not always.
  4. Politely say you will call them back and hang up.
  5. Next use an independent means to verify the business and to verify that this call is legitimately related to a department in that business.  Don't call the number you were just given.  Instead use reliable independent sources of information you already have to contact the business.  Remember that most billing statements have names, addresses and contact numbers so check your old statements for this info.  If it's a bank, call your local branch.   Once you have a good reliable number then call this number and  ask to speak to the appropriate department depending on what the initial call was about.   Discuss with someone in that department the call you received, who it was from, and the information you were given and what the caller wanted from you.  Verify that the call and the request for information is for a legitimate reason related to the business.
  6. If the call is verified as legitimate - don't hang up and go back to calling the original caller.  Instead ask to be routed internally to the call center where the person you need to talk to is located.  Scammers can mimic legitimate calls and even give you correct information and ask questions that a real department employee would ask you.  The problem is that there could be both legitimate calls and scam calls going on at the same time and asking the same questions.  By asking to be routed internally from an office inside the correct business, you can be sure that you get to a legitimate department or call center and that you don't accidentally release info to a scammer the is convincingly mimicking a real call.
  7. If you don't have a number for the business from prior contact, then it may be necessary to research the business on the internet to get the proper contact number.  This will only work for well known major businesses like American Express, or Bank of America.  If it's a business you have never heard of before then even the website you find could be phoney.
  8. Still not sure?  Then don't cooperate and give out any information.  If there is truly a legitimate business need for you info you will probably get something mailed to you at an address that your previously gave to the legitimate business.
  9. Check for scam alerts.  Below you will find information how to contact either the Oregon Department of Justice of the Federal Trade Commission to find out if the type of contact you have just gotten is a known scam.  You can also try typing in the language from an email into your Google browser.  The more common scams tend to use the same language over and over again and you will probably get a web page where your language is being reported and discussed by other consumers that have already spotted the scam. 
  10. Don't get involved in scam baiting.  There are even some consumers that will not only report the scam but will play along with the scammer and update their reports for you to read on various web pages.  This is called scam baiting.  I don't recommend playing this game because some of these scammers are real pirates with real guns and real bullets.  They may be in some foreign country but they could have friends or relatives in the US and you could end up in a life threatening situation.  So you can Google scam baiting if you want to read more about it but stick to just reading about it.

Other steps you can take:

Contact the Oregon Department of Justice.  (DOJ) They should be able to tell you if the type of call you got is part of a scam they are already aware of.  Sometimes the scammer may already be under investigation.
If you have a question about a consumer-related issue or would like to file a complaint against a business please contact the Attorney General’s Consumer Hotline at 1-877-877-9392 from 8:30 a.m. to 4:30 p.m., or complete an online Consumer Complaint Form anytime.
Some of the services and additional information on the DOJ website include:
Oregon Scam Alert Network   Here you can read about current scams and submit your email so you can be notified of scams alerts as they are released.  There are also links to other helpful pages:


Go to the  Federal Trade Commission website and read about the various consumer fraud and identity theft problems that this website discusses.  There is also advice on steps to take to protect yourself and what to do after you have become a victim to minimize your damages:


FTC on
Under this topic you will find info on:
Limiting Unwanted Calls & Emails Some phone calls and emails are important, some can be annoying, and others are just plain illegal. Learn how to reduce the number of unwanted messages you get by phone and online.
Computer Security The internet offers access to a world of products and services, entertainment and information. At the same time, it creates opportunities for scammers, hackers, and identity thieves. Learn how to protect your computer, your information, and your online files.
Kids' Online Safety The opportunities kids have to socialize online come with benefits and risks. Adults can help reduce the risks by talking to kids about making safe and responsible decisions.
Protecting Your Identity Keeping your important papers secure, shredding documents with sensitive information before you put them in the trash, and limiting the personal information you carry with you are among the ways you can protect your identity. Find additional tips to reduce your risk of identity theft, including how and when to order your free credit report.
Repairing Identity TheftIf you suspect someone has stolen your identity, acting quickly to limit the damage is key. Take a deep breath, and then place a fraud alert on your credit file, order your credit reports, and call the FTC to report the crime.

Under this topic you will find info on:
  • Children’s Privacy The Children’s Online Privacy Protection Act (COPPA) gives parents control over what information websites can collect from their kids.  The COPPA Rule — with new provisions in effect on July 1, 2013 —  puts additional protections in place and streamlines other procedures that companies covered by the rule need to follow.   If you run a website designed for kids or have a website geared to a general audience but collect information from someone you know is under 13, you must comply with COPPA’s requirements.  Questions?  Send them to CoppaHotLine@ftc.gov.
  • Consumer Privacy Think your company doesn't make any privacy claims? Think again — and reread your privacy policy to make sure you're honoring the promises you've pledged. Consumers care about the privacy of their personal information and savvy businesses understand the importance of being clear about what you do with their data.
  • Credit Reporting Does your business use consumer reports or credit reports to evaluate customers’ creditworthiness?  Do you consult reports when evaluating applications for jobs, leases, or insurance?  Here's information about your responsibilities under the Fair Credit Reporting Act and other laws when using, reporting, and disposing of information in those reports.
  • Data Security Many companies keep sensitive personal information about customers or employees in their files or on their network.  Having a sound security plan in place to collect only what you need, keep it safe, and dispose of it securely can help you meet your legal obligations to protect that sensitive data.  The FTC has free resources for businesses of any size.
  • Gramm-Leach-Bliley Act The Gramm-Leach-Bliley Act requires financial institutions – companies that offer consumers financial products or services like loans, financial or investment advice, or insurance – to explain their information-sharing practices to their customers and to safeguard sensitive data.
  • Red Flags Rule The Red Flags Rule requires many businesses and organizations to implement a written Identity Theft Prevention Program designed to detect the warning signs  – or red flags – of identity theft in their day-to-day operations.
  • U.S.-EU Safe Harbor Framework provides a method for U.S. companies to transfer personal data outside the European Union in a way that's consistent with the EU Data Protection Directive.  To join the Safe Harbor, a company must self-certify to the Department of Commerce that it complies with EU standards.  The FTC enforces the promise that companies make when they certify that they participate in the Safe Harbor Framework.

Under this topic you will find information on:
  • Credit and Loans If you extend credit to consumers, are in the business of offering loans, or help companies that do, know your compliance responsibilities.  (Looking for information about credit reports or consumer reports?  Visit Credit Reporting.)
  • Debt If you market products or services promising to help consumers with their debts – or assist companies that do – are you up on the rules and laws that apply to your business?  (For resources related to the Fair Debt Collection Practices Act, visit Debt Collection.)
  • Debt Collection The Fair Debt Collection Practices Act protects consumers from abusive or harassing treatment by debt collectors and establishes guidelines for the industry.  Is your company complying with the law?
  • Mortgages The FTC enforces laws that protect consumers from deceptive mortgage practices by certain kinds of lenders.  The FTC also takes action when companies use illegal tactics directed to people facing foreclosure.  If your company is within the jurisdiction of the FTC, are you complying with the law?
  • Payments and Billing  Under the law, businesses must take steps to ensure that charges to customers' credit cards, debit cards, phone bills, and other accounts are authorized.  Those principles also apply to mobile payments.  Does your company process payments for others?  There are compliance standard

Under this topic you will find information on:
  • Shopping & Saving Realistic budgeting is the key to maintaining a financial safety net and spending wisely. Whether you’re shopping for things you buy routinely — or saving for that occasional big ticket item — planning is key. These shopping tips can help you save money on everyday purchases, as well as on some products and services you buy once in a while.
  • Buying & Owning a Car Having a car can be an expensive proposition. Read tips on buying vs. leasing, negotiating the best deal, financing, getting the most out of warranties and service contracts, using gas efficiently, and avoiding repossession.
  • Credit and Loans Decisions about credit and loans involve lots of factors, including how much money you need, what terms you’re offered, and who is behind the offer. If you are choosing a credit card or wondering whether offers of credit and loans are on the up and up, these tips can help.
  • Dealing with Debt Debt collection, debt management, debt relief, debt settlement... Debt is a four-letter word that’s the subject of some complex laws. Learn how to exercise your rights under the Fair Debt Collection Practices Act — and how to recognize debt-related scams and frauds.
  • Resolving Consumer Problems Things don’t always go right. Sometimes you don’t get what you ordered; sometimes you get an item of the blue. What are your obligations? And by the way, are there advantages to using any particular method of payment in terms of consumer protections?

More options for Oregon Debtors: Oregonians can now elect to use Federal Exemptions When Filing Bankruptcy

Some really good news for Oregon Debtors facing bankruptcy.  Governor Kitzhaber has signed SB396 into law and Oregon debtors now have the opportunity to elect federal exemptions or Oregon exemptions when filing bankruptcy.  SB396 reversed the 30 year ban on use of federal exemptions in Oregon bankruptcy cases.  The bill can be used in all bankruptcy cases filed after July 1, 2013. 

In addition, there has been added to the already existing Oregon exemptions a new exemption for Health Savings Accounts in an unlimited amount.

What does this mean for Oregon Debtors?  It means more ways to protect your property and assets that youare allowed to retain when filing bankruptcy.  For example the Oregon exemption for an automobile is $3,000.00.  But if you elect to use the Federal Exemption you would be able to exempt a car worth $3,675.    The real benefit of using the Federal Exemptions is that you can borrow the unused portion of the Federal Homestead exemption up to $11,500 for an individual can be used instead to increase another Federal Exemption amount.

So you could exempt a car worth up to $15,175 by adding the $11,500 to the existing car exemption of $3,675.00  Or maybe you have some property that doesn't fit into a specific category.   Combining the wild car exemption of $1,225 with the transferable amount of $11,500 gives you an exemption of $12,725 to apply to any property you want to keep.   (This amount doubles for a married couple for an amount of $25,450.00)
 
Whether you use the Oregon Exemptions or the Federal Exemptions is something you will need to discuss with your bankruptcy attorney as part of your pre-filing bankruptcy strategy.  But this gives you a lot more options.   So if you considered filing bankruptcy in the past but were told you would lose certain property which kept you from filing, you might want to talk to a bankruptcy attorney again and see if the outcome will be more favorable given the change in Oregon's exemption laws.

Here is a list of the various Federal Exemptions that  can now be used by Oregonians filing bankruptcy if they chose to elect:

11 U.S.C. (Title 11 of the United States Code) Section 522(d)
Homestead:
522(d)(1), (5) - Real property, including mobile homes and co-ops, or burial plots up to $22,975. Unused portion of homestead, up to $11,500 may be used for other property.
Personal Property:
522(d)(2) - Motor vehicle up to $3,675.
522(d)(3) - Animals, crops, clothing, appliances and furnishings, books, household goods, and musical instruments up to $575 per item, and up to $12,250 total.
522(d)(4) - Jewelry up to $1,550.
522(d)(9) - Health aids.
522(d)(11)(B) - Wrongful death recovery for person you depended upon.
522(d)(11)(D) - Personal injury recovery up to $22,975 except for pain and suffering or for pecuniary loss.
522(d)(11)(E) - Lost earnings payments.
Pensions:
522(b)(3)(C) - Tax exempt retirement accounts (including 401(k)s, 403(b)s, profit-sharing and money purchase plans, SEP and SIMPLE IRAs, and defined benefit plans). (Fully exempt.)
522(b)(3)(C)(n) - IRAS and Roth IRAs to $1,245,475.
Public Benefits:
522(d)(10)(A) - Public assistance, Social Security, Veteran’s benefits, Unemployment Compensation.
522(d)(11)(A) - Crime victim’s compensation.
Tools of Trade:
522(d)(6) - Implements, books and tools of trade, up to $2,300.
Alimony and Child Support:
522(d)(10)(D) - Alimony and child support needed for support.
Insurance:
522(d)(7) - Unmatured life insurance policy except credit insurance.
522(d)(8) - Life insurance policy with loan value up to $12,250.
522(d)(10)( C ) - Disability, unemployment or illness benefits.
522(d)(11)( C ) - Life insurance payments for a person you depended on, which you need for support.
Wildcard:
522(d)(5) - $1,225 of any property, and unused portion of homestead up to $11,500.

Tips regarding Oregon's Minimum Liability Insurance Coverage

Oregon driver's insurance policies must offer a minimum of:
Bodily injury and property damage liability​
$25,000 per person;  $50,000 per crash for bodily injury to others; and
$20,000 per crash for damage to others property​
State law also requires every motor vehicle liability policy to provide:
Personal injury protection (for reasonable and necessary medical, dental and other expenses
incurred up to 1 year after the crash)​ $15,000 per person.  (Coverage for lost wages up to $3,000 a month for up to one year is also part of PIP and is in addition to the medical coverage.)
And the policy must include Uninsured motorist (UM/UIM) coverage of​
$25,000 per person; $50,000 per crash   
http://www.oregon.gov/odot/dmv/pages/driverid/insurance.aspx

What this means is that if you hit someone, your insurance will pay at most $25,000 maximum to each person injured and no more than $50,000 maximum for the total paid for all injuries.  So if you have more than one person with more than $25,000 of injuries, your insurance company won't pay more than the maximum and you may be liable for any judgment in excess of the maximum coverage.  This could mean that you may lose your house if you have equity above the current exemption amounts of $40,000 per person and $50,000 per married couple.  Scary isn't it?   

If you own property that has value, like a nice house with equity or a car worth more than $3,000, it would be wise to talk to an attorney and see how much exposure you have and find out how much more insurance you need to buy to protect yourself.

Now let's look at the protection you have for yourself under your policy.  Your UM/UIM will pay you if you are injured by another driver up to $25,000 per person  in your car, and up to $50,000 total per accident.  Not very much if you are seriously injured by a driver with little or no insurance.  One night in the hospital could chew up $25,000.00. 

What often surprises people is that if a driver hits you, and has insurance, let's say the minimum required, $25k per person and $50k per accident, you might think that your own policy will then kick in and boost this to more, adding on your own $25k/$50k UM/UIM coverage.  But it doesn't.  The game is rigged by the insurance rules and underwriters.  Currently the two policy amounts won't be combined.  You only get your UM/UIM if it exceeds the amount of the other driver's coverage and only get the excess.

One of the best ways to protect yourself is to buy higher um/uim coverage if your insurance company offers it and you can afford it.   This may mean buying an umbrella policy.

In Oregon you will also have a minimum of $15,000  in PIP to cover medical expenses.  If you have other medical insurance this is probably sufficient.   Just be careful if you ever need to use your PIP that you
don't use it all up immeidately for something like chiropractic care, and then find out you need other treatments that your HMO won't cover, like massages.   Talk to your personal injury attorney as to  ways to monitor and allocate the PIP usaage so you get the maximum benifit.

Auto Insurance - Important to Know!

Let's talk about Auto insurance and three of the most important things to know:


1.  Don't drive without insurance, even if you are a good driver: If you get into an accident and don't have insurance, and the accident wasn't your fault, an attorney would have a very hard time representing you to help you recover for your damages because Oregon law prevents uninsured driver's from recovering pain and suffering damages. (There is an exception if you were insured and the insurance has just recently  lapsed.)  Without the extra funds that come from the pain and suffering portion of your damages, there is little an attorney can do to help you collect the money needed to fully compensate you for your medical bills, lost wages and car damages because there is no extra money from which the attorney can get paid to do this work.   Also, you won't get any money for the suffering you went through. So bottom line, don't drive without insurance because even if you avoid causing any accidents, you could still be in big trouble if someone hits you and you are the one that needs help getting your damages paid.

Whether or not you the accident was your fault, under Oregon Law you will be subject to having your driver's license suspended for one year.  You may be able to qualify for a special work driving permit before your one year suspension is over, but you will have to show proof of insurance to get that permit.
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2.  Every Oregon Insurance policy includes PIP (Personal Injury Protection) which means you get up to $15,000 of your related medical bills paid the first year, no matter who is at fault, and you get 70% of your lost wages reimbursed up to $3,000.00 per month.  So you don't need to panic and settle your case because you are worried about the fact that you can't work or that you didn't have medical insurance.  PIP will help you with this giving you time to talk to an attorney and get your case evaluated.

3. Make sure you raise your Uninsured/Underinsured Motorist coverage.  Under Oregon Law all policies have basic coverage of $25,000 per person, $50,000 per accident.  This means if you are in an accident that is not your fault and the other driver has no insurance then you can get up to $25,000.00 for your injuries from the UM (Uninsured Motorists) portion of your policy.  But $25,000.00 can't even begin to help you if you are seriously injured.   It will be exhausted with just a few days of hospitalization.  This is the one area of insurance that actually protects you and your loved ones but it is so often ignored, and it is usually very inexpensive to increase the coverage.

UM also becomes UIM (Under-Insured Motorists) if you are hit by a driver with less insurance coverage then what you have.  Keep in mind that many other driver's only have the minimum insurance, $25,000 to pay you if they injure your.  It would be wise to get as much UIM coverage as you can afford.  UIM only works to the extent that you buy coverage greater than what the other driver has.  The amount of your policy is not added to the amount of the other driver's, rather the amount of the other driver's is subtracted from your UIM and you get the difference.  So if you have $50,000.00 of UIM coverage and the other driver has only $25,000.00, you could get an additional $25,000.00 from your policy for a total of $50,000.00 (but you would not get $75,000.00).  This is another reason to aim for the highest coverage you can afford, ideally a million dollars worth of additional coverage.  It may sound like a lot but it is relatively cheap, especially if you have a good driving record.

Keep in mind that UM/UIM insurance does not cover your car.  You must also carry full coverage insurance if you want your property damage covered as well!

Estate Planning isn't just about writing a Will

Estate planning doesn't just mean doing a will. It means learning how property transfers with or without a will and making sure you have set up your financial affairs so that your property goes to the people or charities that are important to you.
There can also be some tax planning involved. Most people don't have to worry about Federal Estate Tax anymore since you don't pay taxes unless you have an estate over 5 million dollars. However Oregon still begins to charge estate taxes on estates of 1 million dollars or more. While that might sound like a lot for most of us, it can be reached when you add in any life insurance payable on your life to the equation when you die.

That's right, if you buy life insurance on your life the full amount is includable in your estate for estate tax assessment purposes. So if two spouses both have large life insurance policies, a home with a lot of equity, retirement and investment accounts, it is possible to pass the 1 million mark on paper and incur taxes when the second spouse dies. (There is no tax for property passed from one spouse to another).

There are some easy fixes particularly for married couples that can avoid a lot of estate taxes.   I like to add a disclaimer trust into my Wills for married couples where the possibility of estate tax is uncertain.  It is inexpensive to add this provision and the provision allows people to make an elections after the first spouse dies if they see the need to do some post-mortem planning to avoid estate taxes. The election puts some of the first spouses property into a trust where it can still be used to support the second spouse with some limitations, but the passage into the trust allows the first spouses exemptions from estate tax to apply to that property which would have been lost if the property went directly to the second spouse before passing to the children.  Clients with this clause to need some instruction on how to maintain the title of their properties so that it is possible to make the election but it isn't too difficult once you understand some basic concepts.

For more information on Wills and Estate Planning please be sure to check my Articles and Links page.

Bankruptcy and Tax Refunds

As 2011 draws to a close some of you are still stunned by the lack of recovery of our economy.  Maybe you finally found a new job but it's for lower pay or less hours.  You remain buried in debt.  This might be a good time to consider getting rid of the debt that piled up during a long period of unemployment or during an extended illness or other calamity that put you behind. 

There are limits to the amount of income you can earn and still completely discharge your debt in a chapter 7 bankruptcy so filing when your income is still relatively low may be your best chance to wipe out debt for a fresh start.   If you wait until your income improves and still can't pay your debt you might be limited to a chapter 13 bankruptcy plan which will require you to make payments towards your debt for up to 5 years.  By using a chapter 7 bankruptcy now to get rid of all your debt, you will be debt free and able to move on in your life rebuilding your credit to again plan for your future retirement and other future needs.

First you are going to want to collect any 2011 tax refunds due to you since unlike wages owed to you where 75% of the back wages are exempt, tax refunds don't get that same favorable treatment in bankruptcy and up to 100% of the tax refund due to you can be collected by a bankruptcy trustee and used to pay your creditors.  With some simple advanced planning you can file for your refund as soon as you get your W-2s from your employers and your tax refund will be on it's way.  Once you receive the refund you can use the funds to pay for your bankruptcy and spend any additional money on necessities for you and your family.  

You can consult with an attorney now about whether bankruptcy is a good option for you.  I offer a free preliminary phone consultation and more intensive office screening at a low cost.  It is important to talk to an attorney before you spend your tax refund just to certain you don't inadvertently spend it in a way that the bankruptcy trustee will object to or that you buy some other asset that is not exempt and can be taken from you.  

As a general rule you can spend your refund on reasonable expenses for food, clothing, shelter and medical expenses as well as attorney fees related to your bankruptcy.  It is still a good idea to get legal advice first.   Talking to a lawyer about bankruptcy does not commit you to filing a bankruptcy.  It is only a preliminary step to explore solutions to your debt situation.  In the course of talking to you I might be able to suggest other non-bankruptcy solutions.

For more free information on Bankruptcy please use the tool bar and click on "Articles and Links"

Joanne Reisman
Attorney at Law
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