Debt Collection and TCPA Claims

The Telephone Consumer Protection Act (“TCPA”) is a vital litigation tool against debt collection and mortgage foreclosure actions. The Act has not gained much popularity amongst consumer protection attorneys and is rarely used for the benefit of consumers. Violations of TCPA are rampant in the debt collection industry and frequently go unpunished. The provision most often violated by debt collectors is 47 USC § 227 (b)(1) which disallows usage of automated dialing systems to call cell phones. However, said calls can be authorized and deemed in compliance with TCPA with an express consent from the debtor. The debtor may authorize the calls via an express consent if the only number provided to the creditor was the debtor’s cell phone contact. The issue is frequently raised by defense attorneys and hence it is always prudent to send a cease and desist letter to the creditor via certified mail. Following the receipt of this letter, any calls made via an automated dialing system to the debtor’s cell phone will be in violation of TCPA.

TCPA violations can be of significant help and consequence in loan modification negotiations and other debt collection litigations because the statute allows for recovery of $500 per violation. It is not uncommon for creditors to continually violate the provisions of this statute and expose themselves to thousands of dollars in statutory damages. The statute is not limited in its scope to debt collectors and is applicable to all creditors using automated dialing systems. Also note that when a debt collector is involved, a TCPA violation is often accompanied by an FDCPA claim (FDCPA claims, unlike TCPA claims, allow for recovery of attorneys’ fees).

The law has numerous safeguards and deterrents in place to protect consumers from harassment by debt collectors and creditors. If you feel that you have been a victim of such harassment please call our office for a free consultation.

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.

USA Swimming

I represent several young Plaintiffs who are victims of sexual abuse by their USA Swimming coaches. With a team of skilled attorneys, we have filed lawsuits around the country to expose and improve the corrupt USA Swimming sexual molestation policies and compensate the innocent victims.

Deep Deceptions (2010) by Justine McCarthy details the sexual abuse scandal in Irish competitive swimming that was exposed in the early 1990’s. The story of sex abuse and molestation in Ireland’s swimming association is eerily similar to the current situation in USA Swimming. In the Emerald Isle, multiple coaches molested hundreds of young swimmers from at least the late 1960’s on.

The authoritarian culture of swimming in Ireland made it extremely taboo for athletes to question coaches. The national governing body, Swim Ireland, intentionally swept the problem under the rug and stifled the investigation of the few complaints that were made. Swimmers in Ireland believed that Mr. Gibney (who could barely swim himself) and his fellow coaches/molesters held the keys to their Olympic dreams. Parents did not even believe their own children when they alleged abuse; the parent boards that governed, sanctioned and endorsed swim clubs almost without exception backed the coach whenever he was accused.

Much like Ken Stopkotte and Mike Saltzstein in the US, the Irish swimming federation did move to discredit and harass the brave whistle blowers.
Gary O’Toole, an Irish Olympian, finally came forward and revealed that George Gibney, the Irish Olympic coach, had not only attempted to molest him as a young swimmer, but also had molested dozens of young swimmers prior to him. Chalkie White, another former Irish international swimmer,(who also swam at Villanova University) came forward and publicly accused Mr. Gibney. Mr. O’Toole, now an orthopedic surgeon, was cast out by Irish swimming. During the Barcelona Olympics, Mr. Gibney criticized Mr. O’Toole on Irish public television and Mr. White was fired from his coaching position.

Any criminal who operates for decades without detection will be emboldened to press his luck. In Irish swimming it was an open secret that coaches such as Mr. Gibney sexually molested countless young swimmers. Just like in the US, where molester coaches are still coaching, Mr. Gibney and others continued to coach for decades, despite numerous allegations of sexual abuse. The arrogance with which molester coaches openly operated in Ireland mirrors the current culture in the United States where numerous coaches, well known in the swimming community for molesting young athletes, continue to coach.

The culture of competitive swimming needs to change. Presently in the US and across the world, swimmers of all levels are taught never to question their coaches. Parents and swimmers alike are drawn into an authoritarian system of insanely early morning practices and 5 day long swim meets. Parents, swimmers, coaches, and officials need to take a step back and decide what the proper place of sports is in a young person’s life. Swimming is a sport that should teach young athletes confidence, responsibility, and independence. Competitive sports should teach our youth that there is a direct correlation between their preparation and hard work, and their end results. You cannot fake the level of fitness and skill necessary to achieve top performances in the pool. Swimmers need to wake up and realize that they alone own their performances. No particular coach has the exclusive ability to maximize your potential. Swimmers: Question authority, it is for your own safety.
If you or a loved one has been molested by a coach in any sport, please contact local law enforcement, and please feel free to give me a call or send me an email.

Student Loans

In August of 2005, I was starting my second year of law school. I took out $14,000 in student loans from Citibank. This was the only private loan I obtained in law school. The repayment term is 20 years at 7.25% interest.

After graduating in May 2007, I began making monthly payments in November 2007. To date I have made over $7,000 in payments, which is half of my original loan amount. Today, my loan balance is $15,200!

How is this possible? First, the interest on student loans is capitalized. Meaning while you are in school the interest accrued is added onto the principal. When your repayment period starts, 6 months after graduation in my case, your principal amount is the amount you borrowed AND the interest that accrued while you were in school. Under the terms described above, this amounted to approximately another $2,000 to be added onto the principal. While entirely unfair, I understand the concept of capitalization.

However, when I began repaying in November 2007, my principal balance was not the $14,000 I borrowed, or $16,000 reflecting the capitalized interest. Instead, it was over $17,000. Not only did Citibank capitalize the interest, they capitalized the fees as well! And oh what fees – over $600 in distribution fees! Citibank charged over 4% to transfer the money into my bank account. This fee was of course capitalized at 7.25%, with the interest meter running while I was attending school.

I entered into a contract with Citibank to borrow that money for school several years ago, and now I am faced with owing more than the original loan amount, with interest still accruing. Student loans are one of the few debts that cannot be discharged in bankruptcy.

Students, be careful with the terms of your loans, and only borrow money from a private bank if you absolutely have to!

Home Mortgages and Accounting Blunders

Over the past few years, Mortgage Servicers have leap frogged their way up the ladder of corporate irresponsibility. Homeowners around the country are paying the price of accounting mishaps by their Mortgage companies. Accounting mishaps are not frequent but prevalent in the mortgage industry. Hundreds and thousands of people around the country are facing foreclosures despite having never missed a mortgage payment in their entire life. Despite these blunders Servicers have turned a deaf ear to homeowner complaints and remained indifferent towards their victims. The following are some common accounting errors we have come across:

1) Accounting errors stemming from escrow accounts held by Mortgage Servicers. Many Mortgage Servicers have mysteriously managed to misapply funds coming in or going out of escrow accounts. Consequently, homeowners are left facing a default they never caused, and pay late fees and other expenses which they don’t owe.

2) Frequently, Loan Servicer will fail to provide coupons for monthly payments following the purchase of a home. Subsequently, homeowners miss their first monthly payments due to no fault of their own. Within a few months, homeowners are pushed into default and forced to pay late fees and other expenses they don’t rightfully owe.

3) Mortgage Servicers are especially inept when dealing with Homeowners who have filed for Chapter 13 Bankruptcy to save their house after falling behind. As per the Bankruptcy Code, homeowners are allowed to catch up on the mortgage arrears over the course of the Chapter 13 bankruptcy plan (usually between 3 to 5 years). During this period of time the homeowners make monthly mortgage payments as well as monthly arrearage payments. In many instances we have found Mortgage Servicers inappropriately charging late fees during the length of the Bankruptcy Plan. Furthermore, many servicers fail to properly account for the bankruptcy filing; hence the debtor is forced into a default despite staying current with all payments within and outside the bankruptcy plan.

4) Accounting errors are almost a norm in cases where the debtor has fallen behind at some point of time and later tried to catch up. In many of these instances, payments are misapplied into a suspense account. Meanwhile, late fees accrue on the miscalculated arrearage.

Most of these errors are a direct result of flawed automated systems implemented by Mortgage Servicers. However, the bigger cause is the unwillingness of the industry to regulate itself. Servicers are not the owners of the loan, but merely contractors providing a service. Loan servicers make colossal profits from fees charged to mortgage accounts. Consumer Protection attorneys are few and scattered, so servicers rarely face stiff opposition or pay for their legal indiscretions. Hence, there is little incentive for servicers to rectify their accounting systems. The real owners of the debt are extremely hard to find since many debts are sold three or four times and eventually end up in a trust. The trust can hold thousands of mortgages at one time leaving little motivation for either the beneficiary or the trustee to hold the servicer accountable for individual mortgages. END RESULT – one more foreclosure, one more victim, more profits for the Servicer and a gaping regulatory void.

Philanthropy

Saeed & Little is proud to be affiliated with several charitable organizations. We strongly believe in social justice, corporate responsibility, and improving our community, country, and world. The charitable efforts of Saeed & Little are focused on young people, improving their future with better public education and athletic programs. It is our belief that education is the ladder out of poverty – the great equalizer in minimizing the increasing social stratification and economic inequality both within our country and abroad.

We give to Seeds of Learning, an organization that builds schools for children in impoverished areas of Pakistan. Attorney Syed Ali Saeed volunteers on the Board of Directors for Seeds of Learning and Campaign for Compassion in Communities, a not-for-profit organization building food pantries and a free medical clinic.

Attorney Jonathan Little recently participated in public support rallies for workers’ rights and public education. He is on the Board of Directors for the Indianapolis Monumental Marathon, which gave over $130,000 to Indianapolis Public Schools this year. There is a box in our office filled with donated athletic shoes which will be shipped and distributed to young athletes in Kenya.

Little has also partnered with Herron Cross Country, a great fit for Little, who had a successfuly running career, qualifying for the Olympic Trials in the marathon in 2008.

Saeed & Little will continue to donate and develop charitable endeavors that help public education and fitness in Indianapolis and around the world.

Stripper Shoe Case

Recently a lawsuit filed Saeed & Little, LLP against a local gentlemen’s club was picked up by local media and the Associated Press. The circumstances of the case are attention-grabbing, but also far too common. Below are a few links to recent cases exposing rampant negligence in the strip club industry.

Man Sues Strip Club After ‘Stripper Shoe’ Injuryhttp://www.asylum.com/2009/01/23/man-sues-strip-club-after-stripper-shoe-injury/

Are Strip Clubs Safe from Flying Footware? http://www.onpointnews.com/NEWS/are-strip-clubs-safe-from-flying-footwear.html

Nightclub Patron Wins Award for Kick in the Face from Stripper’s Shoe http://content.usatoday.com/communities/ondeadline/post/2010/10/nightclub-patron-wins-650k-award-for-kick-in-the-face-from-strippers-shoe/1

Even strip clubs have a responsibility to ensure safety of their customers and comply with the laws. There have been numerous incidents in strip clubs across the country in which flying shoes from routine dance maneuvers have caused injury to innocent patrons. The adult entertainment industry is aware that heavy, ill secured shoes combined with high kick and spinning routines can lead to unintended injuries. This is not the first time it has happened and strip clubs should take appropriate measures to ensure the safety of its customers. The attorneys of Saeed and Little, LLP strive to hold all businesses accountable to responsible, honest, and safe business practices.

Welcome

Welcome to the blog of Syed Ali Saeed & Jonathan Little.

The Real Defendant in a PI Case

Imagine you are driving your car. It is raining and you suddenly need to stop your car, so you slam on your brakes but fail to stop in time and rear end the car in front of you. The passengers inside the car you hit are seriously injured. It is a tragedy, but one that occurs everyday. You accept responsibility for the collision; after all you were at fault. You certainly did not mean to hurt anyone and you sincerely pray for a speedy recovery for the injured passengers.  You have car insurance for these situations, you assume they will take care of it and do the right thing.

Months later you receive a Summons to appear for a civil lawsuit filed against you. The injured passengers are asking you to pay their medical bills. “Why didn’t your car insurance pay them?” you wonder. A few months later you find yourself in court. The injured party is asking for $50,000 to pay their medical bills, and to compensate them for their injuries and lost wages. You carry $100,000 of car insurance specifically for this reason. Why hasn’t your insurance company just paid for the damages you caused? After all, you don’t disagree with the injured parties position, you were at fault. You certainly don’t object to compensating the passenger for his injuries and the adverse affects on his health. This is exactly why you pay your insurance payment each month!

 

In Indiana, the jury is not allowed to know that the party denying the injured persons their benefits is in fact an insurance company and not the named defendant. The insurance company has complete discretion to deny payment of a claim, and drag you into a stressful, time-consuming lawsuit. Most of us carry insurance, and are required by law to keep a car insurance policy if we drive a car. We assume that the policies we spend money on every month will take care of the damages from our mistakes. In reality, insurance companies have very little regard for anything other than their bottom line. They take your money each month, then use their vast resources to fight against paying out any claims, going so far as making you testify in front of a jury about the rain, the injured person’s previous lawsuit, anything so that the innocent people you hit with your car will be forced to pay their medical bills from their pocket.