Foreclosure and Bankruptcy

DO NOT BE TOO QUICK TO FILE A CHAPTER 13 IN RESPONSE TO A FORECLOSURE ACTION!!

Many distressed homeowners facing foreclosure are often directed by attorneys to file a Chapter 13 Bankruptcy. These homeowners are often advised that their credit score has hit rock bottom and a Chapter 13 filing will be inconsequential. While a Chapter 13 Bankruptcy is a viable option in specific circumstances, it is not always necessary. Many loan mortgage servicers commit egregious accounting blunders and numerous regulatory violations. These violations and blunders can often be used to file a countersuit against Mortgage Companies and Loan Servicers. These counter-suits often result in affordable loan modifications for homeowners without ever filing Bankruptcy or destroying their credit history. Additionally, attorneys can often successfully include a provision mandating a retraction of all negative reporting from the loan servicer to the credit bureaus (for failure to make monthly mortgage payments or the foreclosure filing) as part of the settlement agreement. Hence you not only walk away with a loan modification but also a clean credit history.

Many homeowners will be skeptical about their chances of reaching the described settlements. However, the truth is that regulatory violations and accounting errors are prevalent and often present in a majority of mortgage contracts. The hard task is not to find the violation but an attorney who will recognize these violations. Your typical foreclosure mill attorney is not knowledgeable about consumer protection laws and will generally fail to leverage all legal avenues to save your house. The trick is to find a local consumer protection attorney like myself for your foreclosure defense. You may find a consumer protection attorney in your area by visiting the website for National Association for Consumer Advocates at: http://www.naca.net/.

A Chapter 13 filing is not your only option for saving your home if you are in default. The life altering decision to file for Bankruptcy should be informed and not based on assumptions and suggestions from ill-advised attorneys. A consumer protection attorney may assist you in making a decision about whether a Bankruptcy filing is in fact necessary to save your home.

Students and the Law

The end of the school year is fast approaching. Students are buckling down and getting ready for final exams and for some of you, graduation. As you prepare to conclude your formal studies, for good or just for the summer, be aware that you as a student have due process rights that your education institution must protect and honor.

It is important to remember that the US Supreme Court has held that public education is not a fundamental right under the US Constitution (San Antonio Unified School District v. Rodriguez).

When handling student rights cases, the first thing that needs to be established is whether the case is related to the student’s academic record or whether the action is being brought on other grounds.

Courts have consistently protected the rights of academic institutions to make independent decisions, up to and including expulsion, for academic reasons. Courts will afford school administrators at all levels, including medical schools, wide latitude in deciding to take academic actions against a student (Horowitz v. University of Missouri- Kansas City). For lawyers and students facing an academic hearing, your best bet is to beg for mercy; there is very little you can do.

However, if you are a student facing disciplinary action for a non-academic reason, you have considerably more due process rights. It is important that you get school officials to state on the record or in writing that the proceedings are being initiated on non-academic grounds. Last year I dealt with two cases involving medical school students. In one case, my client was graduating in the top 5 % of his class, and was facing expulsion because he “breached a contract” during the post match scramble process. We were able to show that this was a common event and that he was being singled out for whatever reason.

If you are a student facing a school disciplinary hearing or academic expulsion, please call me. I would be glad to help.