Lawyers.com Blog

FERS & CSRS Disability Retirement: Failing to follow "Reasonable Treatment"

nospam@example.com (Robert R. McGill) — Tue, 08 Jul 2008 01:01:06 -0400

In fighting to prove one's eligibility for Federal Disability Retirement Benefits, a recurring argument which the Office of Personnel Management often alleges is that an applicant failed to follow the treatment recommendations of the treating doctor. Such an argument can prove to be fatal to an applicant's case, but it is good to know the parameters of what it means to "fail to follow" reasonable medical treatment. For instance, non-compliance with a medication regimen can be fatal to a case. Thus, OPM will successfully argue that an individual who has failed to follow the medication regimen of the treating doctor has thus failed to show that the individual could have returned to work precisely because non-compliance with a medication regimen would logically undermine the potential efficacy of the medical treatment. On the other hand, invasive surgery is normally not required, and the Merit Systems Protection Board has stated that an "estimated probability of success of future surgery is speculative, just as a prediction as to the worsening of a condition may be, and will not necessarily provide a basis for denial of a disability annuity." These are two light-posts on the spectrum of what is deemed "reasonable treatment". Most issues concerning reasonable medical treatment fall somewhere between these two extremes, and the best course of action (obviously) is never to self-treat, or make medical decisions without the input of your treating doctor. Indeed, to not follow the medication regimen of your doctor is a manner of self-treatment; on the other hand, to elect not to have surgery because of the speculative success/failure rate is a reasonable decision which the Merit Systems Protection Board will not second-guess. What falls in-between these two extremes should always be with the guidance of "reasonableness", in close consultation with your treating doctor.

Sincerely, Robert R. McGill, Esquire

Your doctor does not have to follow your Living Will

nospam@example.com (John B. Whalen) — Sun, 06 Jul 2008 03:17:45 -0400

A common misunderstanding with a Living Will is that your doctor will, or must, follow your directions. Unfortunately, this is not true. However, should this not be the case, your doctor (as well as any health care provider) must inform you if they cannot, for whatever reason, follow your wishes as stated in your Living Will. Thus, it is important to provide your doctor with a copy of your Living Will to ensure that your doctor will follow your wishes when it is time to do so.

This is one reason why you should give a copy of your living will to your doctor (or any health care provider) when you enter a hospital or other medical facility. If you are incompetent when you are admitted for medical care and have named someone in your living will to make decisions for you, that person must be informed if the wishes contained in your Living Will cannot be honored.

Your doctor (as well as any health care provider) who cannot honor your wishes must then help transfer you to another doctor (or health care provider) who is willing to carry out your directions.

For more information, please visit my web site at www.johnbwhalenjr.com

Thank you.

John B. Whalen, Jr.

Basics of Personal Injury in Las Vegas NV

nospam@example.com (G. Mark Albright) — Tue, 01 Jul 2008 11:32:31 -0400

Personal injuries may occur from a slip and fall, a motor vehicle accident, a pedestrian vs. motor vehicle incident, or dog bites, just to name a few. While most people think an assault and battery is classified as a personal injury, due to injuries usually sustained by one or more of the involved parties, these cases are actually criminal matters and handled by a criminal attorney.

Personal injury attorneys will generally try and assess your claim by asking you questions relating to your matter. The basic “Who?”, “What?”, “When?”, and “Where?” and “Why?”, questions are standard in order to gather information about your matter and to determine if your claim is viable. Pertinent questions generally asked will include whether any releases were signed; whether an incident or accident report was filed, and if so, who was determined at default; what are the injuries of the parties; were there any witnesses; what the particulars of insurance coverage, property damage are; etc.

A good personal injury attorney will view this information to determine whether the case would more likely than not win in a jury trial. It is true that many claims settle before a case goes to a trial. However, in order to avoid filing frivolous lawsuits, a good attorney will assess the claim, use their experience in the Court’s jurisdiction and their knowledge of case law in that particular area of interest, to determine if the claim would be viable to win in a jury trial, should negotiations for a settlement fail. Our law firm assumes that all cases may end in a jury trial and therefore does not accept new cases solely based on the goal to quickly obtain a settlement, as some law firms practice. We believe, by setting this ethical standard for ourselves, we assist the client in a more expedient, efficient, and transparent fashion. Personal injury cases may take up to 2 -3 years from start to finish, and the attorney/client relationship, becomes an important aspect of the experience. A prospective client should feel comfortable with the attorney and his or her support staff.

Additionally, just because one attorney does not accept a case, does not mean you have an invalid claim and should thereafter acquire multiple opinions. Attorney's fees will also vary and you should be informed of all conditions listed before signing any attorney/client fee agreement.

Michelle Anderton
Attorney at Law

Continue reading "Basics of Personal Injury in Las Vegas NV"

FERS & CSRS disability retirement: Symptoms versus Diagnosis

nospam@example.com (Robert R. McGill) — Mon, 30 Jun 2008 19:49:12 -0400

If Disability retirement were merely a matter of determining the proper diagnosis of a medical condition, and having a doctor ascribe a percentage rating of disability, then the process of disability retirement would substantively be altered, and perhaps there would be far fewer cases to adjudicate at the Merit Systems Protection Board level. For, if the criteria were that 'cut and dry', there would be little for OPM and the applicant & the applicant's lawyer to argue over. However, it rarely is that 'cut and dry' -- because the major battle is rarely over the diagnosis; it is rarely over an issue concerning a percentage ascription of disability; rather, it is over the symptoms manifested, the significance of such symptoms upon the type of work one does, and in the impact such symptoms have upon the essential elements of one's job. That is why descriptive terms are important in disability retirement law. It is not so important 'what it is', as opposed to 'how it is characterized'. From this perspective, it is important for a disability retirement attorney to be more of a poet than to be cold and analytical -- although, the best approach would be to have a little bit of both. Remember to always know the context -- the applicant will not be standing in front of an OPM representative showing how terrible the applicant's medical condition is; there will be no visual presentation; everything is based upon a narrative -- the applicant's statement, the medical documentation, the legal memorandum of the attorney, etc. Thus, it is all-important for the attorney who represents a disability retirement applicant to have a good command of the English language.

Sincerely, Robert R. McGill, Esquire

Retirement Accounts - Smart Planning Can Save Big Money

nospam@example.com (James R. Modrall) — Fri, 27 Jun 2008 13:25:48 -0400

Meeting with a client recently reminded me of a topic that we have explored before. That is, smart tax planning for retirement accounts.

In particular, in this case, both husband and wife had both IRA accounts and 401K Plan accounts. This particular family had other assets including a family business and two residences. They intended to make charitable gifts at the second death using their trusts as the vehicle for disposition of property at that time. The second point that was raised involved retirement income or rather cash for current living expenses. Charitable Gifting. It always makes the most sense to use retirement plans to implement charitable gifts at death. This is the most tax efficient way to benefit a favorite charitable, religious or educational organization. The nonprofit entity can liquidate its share of the plan without paying any income tax. If the charitable gift had simply been made from the trust, an individual beneficiary would have been stuck with income taxes of 30% or more on withdrawing the same sum from the retirement plan.

How does one implement a charitable gift of a retirement account? Assuming that the charitable gift is to be made at death, the charity is named as a beneficiary. Normally, the charity would be listed for a fixed percentage. The plan sponsor might permit a percentage with a cap or a fixed amount.

Another alternative is to set up a separate retirement plan, by making a transfer from an existing IRA, for example, with the charity as the sole beneficiary. This is probably the cleanest and simplest way to plan for charitable gifting. The amount in the charitable IRA account can be regulated by withdrawals, or maintained by taking distributions from other plan accounts. Sometimes a client will provide in his or her trust that the charitable gift be augmented if the IRA account is less than a specified amount.

If the charity is named as only one of the beneficiaries of a plan, the family should be aware that there are time limits on making the distribution to charity after the death of the account owner. Otherwise, the stretch feature for the individual beneficiaries may be lost. This is another good reason for using a separate account for charitable gifting.

Important Reminder. This discussion brings up another point that married couples sometimes forget. For example, if a couple intends that their church or university is to get a gift of $50,000 at death, they should make sure that the spouse with the largest retirement plan take steps to be sure that the gift is made at the death of the account owner. Otherwise, the surviving spouse is likely to roll the account into her own IRA with beneficiaries that she can change at any time. (Assuming, the wife is the survivor, which is generally the assumption made in commentaries like this.) We have seen charitable intentions defeated often by inaction, intentional or unintentional, by the surviving spouse. Income Tax Planning During Lifetime. Another useful way to reduce income tax is to carefully plan distributions from retirement accounts so as to take no more than the Minimum Required Distribution (MRD). This should be done by using income and/or principal from other investments to meet current living costs. As any income tax advisor can attest, income tax planning for seniors can be a delicate matter.

Tax on social security benefits can be a huge variable for many people who do not have significant pension income and live off investments, social security and retirement plans.

Financial planners and other income tax advisors should study their client’s investment portfolio and income sources to devise strategies for minimizing retirement plan withdrawals and income taxes in general. Many times cash for current needs can be provided from principal (not taxable income). This can reduce or eliminate income tax on social security.

For example, couples with a substantial investment portfolio can use annuities and other vehicles to defer the recognition of capital gains and ordinary income. This can reduce taxable income and avoid income tax on social security payments. Remember the old adage, "don’t pay income taxes unless you have to!".

©BRANDT, FISHER, ALWARD & ROY, P.C.
This newsletter is provided for informational purposes and should not be acted upon without professional
advice.

Weaving = OWI Stop in Iowa?

nospam@example.com (Mark Thompson) — Tue, 24 Jun 2008 17:56:27 -0400

One of the positive cases to surface in Iowa regarding OWI stops is State v. Tague, 2004. When a motion to suppress is filed in regard to whether a car was stopped for weaving, Tague is usually cited.

In this case, the defendant was traveling on a four lane highway, with a painted median dividing the north and south bound traffic. He was followed for a short distance by an officer. The officer noticed the defendant’s wheel briefly cross the roadway edge line, on the left side of the left lane. At this point the officer conducted a traffic stop.

The defendant was rather intoxicated, and could not win his case on the merits. But that is where a motion to suppress can come in.

The police need to have probable cause that a traffic violation has occurred, or have reasonable suspicion that criminal activity is afoot before they can conduct a warrantless traffic stop. Of course, most stops occur because the officer obtained probable cause by witnessing a violation. In many OWI cases, however, the officer makes a stop due to erratic driving that is an indicator of intoxicated driving, but not necessarily an actual traffic offense.

Tague helps draw the line as to what the officer must observe before he can conduct the traffic stop. In Tague’s case, a single, brief crossing of a roadway edge line was insufficient. Tague’s case was dismissed and the charges were thrown out.

When I review an OWI case, I look specifically for any aspects which would equate to the reasoning in Tague. A slight weave or touching of a roadway line is explained by the Court in Tague:

Drivers talking on their cell phone, looking at a map, adjusting the radio, adjusting the heater, defroster or air conditioner, or check on a child restrained in a back seat can lead a driver to momentarily cross and edge line, without giving rise to a reasonable suspicion of intoxication or fatigue.

To answer the question in the title of this post, briefly crossing the roadway edge is not sufficient evidence to conduct the OWI stop. For questions regarding your specific case (in Iowa), please give me a call at (319) 354-1630, or visit www.thompsonjustice.com.

Continue reading "Weaving = OWI Stop in Iowa?"

FERS & CSRS Disability Retirement: The Reasonableness of the Governing Law

nospam@example.com (Robert R. McGill) — Mon, 23 Jun 2008 20:41:30 -0400

Without getting into too many comparisons, the laws governing disability retirement benefits are, upon reflection, actually quite reasonable. Think about it this way: yes, it doesn't pay a great amount, but at the same time, you are encouraged to go out and be productive in some other employment capacity, and are able to make up to 80% of what your former job pays currently; unlike the stringent and onerous OWCP/DOL laws, you are not subjected to arbitrary, so-called "independent" medical examinations by doctors who make a substantial portion of their livelihood on rendering such "independent" second, third, and fourth opinions; your application is based upon what your own treating doctor says -- not by some doctor who is a specialist in "disability ratings" or "disability determinations". This latter criteria is actually for the benefit of the applicant, when you stop and think about it. For, if the law allowed for disability retirement applications to be determined by doctor's opinions who are "disability specialists", and not by your own treating doctor, then what would happen is that the entire disability retirement process would become a war between doctors and so-called specialists, overshadowing the one who should count the most -- the treating doctor. Instead, as the reasonableness of the present law stands, the weight of the medical determination is based upon the applicant's longstanding treating doctor -- and that is the way it should be. For it is only a doctor who has enjoyed many years of an intimate doctor-patient relationship who should be granted the special weight and status that is accorded in disability retirement laws: the special status of one who can make a viable, respectable determination of one's employment capabilities, based upon the medical conditions he or she suffers from. All in all, the disability retirement laws are governed by a criteria of reasonableness.

Sincerely, Robert R. McGill, Esquire

How to Prove Your Medical Malpractice Case

nospam@example.com (Steven O. Teal) — Mon, 23 Jun 2008 10:32:03 -0400

There are a few things you should consider to establish a case for medical malpractice. The plaintiff must prove that:

The defendant had a duty to the plaintiff.
The defendant failed to meet the standard of care owed to the plaintiff.
The mistake actually caused the plaintiff's injury.
The doctor or other medical professional's negligence damaged the plaintiff.

In a medical malpractice case, there are several difficult issues, one of which is proof of causation. Generally, the injuries involved in medical malpractice cases require specific medical training to understand. Usually the normal plaintiff may not know the cause of such injuries. There are physicians who also practice law who can evaluate your situation. It is important to contact an experienced medical malpractice attorney who will work with experts to prove causation.

Teal & Montgomery is focused on the legal representation of plaintiffs in personal injury and wrongful death lawsuits and related insurance issues. Started by Steve Teal more than 30 years ago and one of the oldest successful law offices in the San Francisco Bay Area, Teal & Montgomery provides legal attention for medical and injury related trauma with a physician attorney on staff. Serious injury and death claims require expert medical / legal counsel such as that provided by the Bay Area personal injury team at Teal & Montgomery.

www.tealmontgomery.com
(866) 878-5267
Continue reading "How to Prove Your Medical Malpractice Case"

FERS & CSRS Disability Retirement: Patience is the Key

nospam@example.com (Robert R. McGill) — Fri, 20 Jun 2008 19:32:15 -0400

There is a cyclical pattern which can be identified with the passing of time, and the Office of Personnel Management is no different from other Federal Agencies, departments, or personnel "make-up". Summer is here; with the season of vacations and time with families, combined with an already back-logged line of cases and overworked, understaffed personnel, expect delays in receiving a decision on a disability retirement application. Patience is the key, and Federal and Postal workers have learned by the very nature of working for the Federal Service, how to be patient. At the same time, being dependent upon an approval of a disability retirement application is worrisome, especially where finances are tight, and the future is uncertain. Pestering an OPM representative rarely helps to move a case along, and indeed, may even bring about a negative result. Remember that OPM representatives are simply doing their jobs; do not unnecessarily take up their time by calling them about the status of your particular case. It has been said that patience is a virtue; by that account, Federal and Postal workers who have filed for disability retirement must be the most virtuous of human beings, for they have endured not only the years of loyal work to the Federal Service, but beyond, while waiting for a decision from the Office of Personnel Management.

Sincerely, Robert R. McGill, Esquire

Definition of "Public Intoxication" in Iowa

nospam@example.com (Mark Thompson) — Thu, 19 Jun 2008 11:31:22 -0400

The first place to look to find the defining law for a criminal charge in Iowa is to the Iowa State Bar Association’s approved jury instructions. For (almost) every charge in Iowa, there exists a standard jury instruction which defines what elements the jury must determine have been met for a guilty verdict to occur.

And in searching these instructions for public intoxication you will find…nothing.

So what exactly does it take for a jury to find a defendant guilty of public intoxication?

The first myth to debunk is that a certain BAC on the portable breath test (PBT) will determine whether a person is intoxicated for purposes of the statute. The BAC limit for determining intoxication or being “under the influence” for an OWI is currently 0.08%. My other blog entries will inform you that the 0.08% for an OWI cannot be gathered from the PBT (it must be the police station’s large, non-portable machine), and also that you can still be guilty of OWI and blow under 0.08%.

But regarding public intoxication, the PBT is fair game for use in court, and there is no BAC cut off for guilty or not guilty. Someone could blow a 0.05% on the PBT and still be found guilty of public intoxication. Also, someone could blow above 0.08% and be found not guilty. There is no BAC bright line; the PBT is just another piece of evidence that would add to the officer’s observations.

Many times the Court will adopt the OWI “under the influence” jury instruction for a public intoxication trial. That jury instruction reads:

Under The Influence. A person is “under the influence” when, by drinking liquor and/or beer, one or more of the following is true:
1. [His] [Her] reason or mental ability has been affected.
2. [His] [Her] judgment is impaired.
3. [His] [Her] emotions are visibly excited.
4. [He] [She] has, to any extent, lost control of bodily actions or motions.

As you can see, this is a very liberal definition. A defendant can have his emotions “visibly excited” simply due to interaction with law enforcement. Nonetheless, this jury instruction is commonly used and has been endorsed (although not required) by Iowa appellate case law.

The Supreme Court of Iowa, however, has not officially ruled on what the public intoxication instruction should be. They have said what it is not, based on a few different lawyers’ attempts to draft more conservatives instructions.

Obviously, the public has a greater interest in keeping “intoxicated” drivers off the street compared to keeping “intoxicated” persons off the sidewalks and out of the bars. Certainly an “intoxicated” person is less of a threat sitting at a booth at a bar, than behind the wheel of an automobile on a public street. Therefore, one could assume that these two persons would be held to different standards.

(And in case you were wondering, public intoxication can occur inside a bar.)

For the time being, there is no clear answer as to how they are treated. And until we get a clear jury instruction for the definition of public intoxication, the Court will continue to piggyback public intoxication instructions on the liberally-drawn OWI instructions.

This post was written by Mark Thompson, Attorney at Law. He can be reached at (319) 354-1630, or on his website at www.thompsonjustice.com.

Continue reading "Definition of "Public Intoxication" in Iowa"

Refusing to "Blow" for an OWI in Iowa

nospam@example.com (Mark Thompson) — Thu, 19 Jun 2008 10:40:59 -0400

During most police stops on suspicion for OWI, the officer will request a breath sample. What happens if a defendant refuses?

There are two different breath samples which the officer may request. The first is the preliminary breath test or “PBT” or field test. This is the small box which officers carry with them in the field.

The PBT is not fully accurate. For an OWI, it is used only to help officers determine if they have probable cause to make an arrest. The results will not be used in Court as evidence of intoxication. (They can be used for a public intoxication charge, though).

A refusal on the PBT is not a “refusal” in regard to any additional penalties which may fall on the defendant regarding their driver’s license. Refusing the PBT only denies the officer an additional piece of evidence prior to making an arrest. If a PBT is given and the results indicate intoxication, an arrest will almost certainly occur. If an officer suspects intoxication and the PBT is refused, an arrest will likely occur anyway. The important test is not the PBT, but the breath test given at the police station.

At the police station a second breath test can be requested. This can be called the “Intoxilyzer” or the “Breathalyzer.” This device is much larger, connected to a computer and much more accurate. A refusal of this test can have serious consequences for a defendant, especially regarding their license.

While requesting the Breathalyzer, the officer must read the implied consent laws to the defendant. The implied consent laws will give the defendant a general idea of the consequences of taking the test and failing, or refusing to take the test.

After a quick review of the probable penalties, it is rarely a good idea to refuse the Breathalyzer for a first offense OWI.

Obviously, if the results indicate no intoxication and the officer no longer feels the defendant is intoxicated and does not file a complaint, then there would be no license restrictions.

If the test is administered and the defendant fails, and it is their first offense, their license will be revoked for a period of 180 days. And depending on the indicated BAC, the defendant may have to wait a period of 30 days prior to receiving a temporary restricted license. If the defendant blows less than 0.10, but more than 0.08, there is no waiting period for the temporary restricted license.

For a refusal on a first offense, the defendant’s license must be revoked for a period of one year, and no temporary license can be received for 90 days.

(One exception to the above situation is if a personal injury occurred due to an accident in which the driver was involved. Then their license can be revoked for one year.)

Therefore, if you are facing the decision “to blow or not to blow” on a first offense OWI, my advice in general is that you should blow. Certainly there are other variables which can be involved, but in most situations taking the test will get your license back to you more quickly.

This post was authored by Iowa City Criminal Lawyer Mark Thompson. He offers free consultations for pending criminal charges in the State of Iowa. He can be reached at (319) 354-1630 or on his website at www.thompsonjustice.com.

Continue reading "Refusing to "Blow" for an OWI in Iowa"

A New Approach to Personal Injury Litigation in New York

nospam@example.com (Howard Andrew Raphaelson) — Tue, 17 Jun 2008 16:49:16 -0400

Since its inception, the Raphaelson Law Firm has always been motivated to provide excellent legal representation and to ensure that all of our New York personal injury lawyers and staff have a sincere appreciation for the problems that our clients and their families face as they meet the challenges that follow accidents and serious injury. These goals are at the core of our Law Firm and they are what separates our firm from other personal injury lawyers throughout New York.

In furtherance of these goals, The Raphaelson Law Firm has assembled an exciting in-house marketing unit. This unit's mission is to reinforce the strong relationships we have with our current, past and prospective clients.

Communication is where it all starts. Our marketing team will constantly reach out to our clients and thier medical providers so that we not only understand their physical injuries, but also are aware of any and all treatments that our clients are undertaking. This brings us closer to our clients and closer to their medical providers and is the reason why The Raphaelson Law firm believes we regularly set new benchmarks for the value of clients' cases.

This communication and cooperation between medical providers and litigators is a concept that has proven to be beneficial in the past. The Office of the New York State Attorney General has, in the past, worked with medical providers to accomplish great things for the public. We endeavor to build on this idea of cooperation and service to our clients and prove, once again, that Laws Work!

Continue reading "A New Approach to Personal Injury Litigation in New York"

FERS & CSRS disability retirement: The Proper Paradigm

nospam@example.com (Robert R. McGill) — Thu, 12 Jun 2008 17:27:06 -0400

Whether we like to admit it or not, we all operate, in all segments of our lives, from a certain "paradigm" (reference Thomas Kuhn, Structures of Scientific Revolutions), or "world-view". When it comes to Federal Disability Retirements, the majority of Federal and Postal Workers who comes to me have a pre-formed, generally negative attitude about the chances of getting it. This is because they have heard too many horror stories; or they have had horrendous experiences with OWCP filings, or EEOC complaints, or other experiences which they then relate to how the disability retirement process must be. Yet, all Federal and Postal employees must understand that the process of Federal Disability Retirement has many, many inherent advantages which make it different from other processes. For instance, the Merit System Protection Board has often observed, with respect to disability retirement, that it is distinguishable from other processes, because it is not -- strictly speaking -- an adversarial process between an agency and an employee; rather, the MSPB sees it simply as a single issue -- that of an employee's entitlement to disability retirement. Further, the role of the Office of Personnel Management, while seemingly one of making things overly difficult for the individual, in reality has a very difficult time in ultimately justifying a denial. Why? Because they do not have a right to have a doctor of their own to examine the applicant/patient (note the difference with OWCP, where you can be sent to second, third, and sometimes fourth medical opinions by doctors chosen by DOL and paid by DOL). Thus, it is almost as if OPM must disprove a case filed by an applicant. Finally, it is difficult to attack a treating doctor of an applicant, unless there is something seriously wrong with the credentials or competence of the treating doctor. All in all, disability retirement for Federal and Postal Workers is a fair process -- one which is a valuable benefit for the Federal and Postal Employee.

Sincerely, Robert R. McGill, Esquire

Debt Collection and Credit Repair

nospam@example.com (Laura Kalish) — Wed, 11 Jun 2008 18:31:21 -0400

Debt Collection and Credit Repair

The federal law that governs debt collection is called “the Federal Fair Debt Collection Act” (states will often have a state counterpart to the act, for example, the Texas Debt Collection Act).

Definitions:

The Federal Fair Debt Collections Act applies to “consumer debts”, including personal, family, household, credit card and medical debts.

A “debt collector” is generally a third party who collects the debts of another, including attorneys.

A creditor collecting it’s own debts under a name that is different from the company name is also considered a “debt collector” for purposes of the Act.

An original creditor collecting it’s own debts, under it’s own name, is not subject to all of the restrictions in this Act, but still may not break other laws, such as threatening bodily harm or slandering you.

Restrictions:

Under the Federal law, a creditor may not contact you before 8 AM or after 9 PM, or at work if your employer does not allow it. (unless you give permission).

A collector is not allowed to threaten to do something that they are not allowed to do by law. They cannot say they are going to take an action when they have no intention of taking it. They cannot use abusive language or threaten to send you to prison. (There is no debtor’s prison, although a person found guilty of criminal fraud can be jailed for the fraud!)

The debt collector is also forbidden from engaging in deception. For instance, pretending to be an attorney or officer of the law, when they are not or representing paperwork as a legal document when it is not.

The restrictions are set out in more detail in the Act.

What the consumer can do:

- Dispute the debt in writing, within 30 days of receiving written notice.

- Send a “cease and desist” letter, telling the debt collector to stop further collection efforts. Under Section 805 of the Fair Debt Collections Practices Act, the debt collector must then cease any further communication with you except to advise you that the debt collector's further efforts are being terminated; or to provide notification that they may invoke certain legal remedies (example; filing a lawsuit).

- If a creditor violates the state or federal law, the consumer may sue or file a complaint with the state attorney general or with the Federal Trade Commission.

Statute of Limitations

If a creditor wants to sue, they must do so within the time periods allowed by law. This time period varies from state to state. However, even if this time period has run, a consumer may “reactivate” the debt by taking certain actions regarding it. (including but not limited to: promising to pay, corresponding about it, requesting documentation and so forth).

“Cleaning up” a credit report

You can also request a copy of your credit report. You should do this periodically and review it for accuracy. If you find inaccurate or misleading information, you should write a letter to the credit agency requesting that the agency investigate and correct the information.

Equifax, TransUnion and Experian are the three main credit reporting agencies and current contact information for these companies can be found on the internet.

You can also ask for removal of “old” information. This includes credit inquiries older than 2 years, adverse information older than 7 years, and bankruptcy information older than 10 years.

You should also check for accuracy of identifying information. (For instance, there may be addresses listed for you that were never yours).

You are entitled to one free credit report per year from each agency.

In order to be sure that the most accurate information is on record, you should contact all three agencies and review what each agency has to say about you.

Note: there are a lot of companies and individuals that offer to clean up credit reports for a fee. Some of these are reputable, some are not. Be sure to check out any individual or company thoroughly before paying money and releasing personal information!

This article is intended for informational purposes only and is not intended to provide legal advice in any particular situation. Each situation is different and all of the facts and circumstances must be evaluated in order to determine the best course of action to take. The reader is advised to consult an attorney for legal advice.

About the Author: Laura Kalish is a partner in the Kalish Law Firm and can be reached at kalishlawlaura@aol.com. The firm’s website can be found at www.kalishlawtexas.com.

Continue reading "Debt Collection and Credit Repair"

FERS & CSRS disability retirement: The Packet

nospam@example.com (Robert R. McGill) — Thu, 05 Jun 2008 17:45:09 -0400

It is often a good idea to understand the process of Federal Disability retirement, in order to effectuate the best approach in winning a case. Remember, for instance, that in all likelihood, the Applicant will not be speaking with the Benefits Specialist at the Office of Personnel Management; even if you call them (and I never recommend calling too often, for there is the "irritant" factor, which may -- thinking in purely pragmatic terms -- result in a First Stage Denial of your case), you will be a faceless entity, and merely one case in a long line of cases for the OPM representative to review and decide upon. Thus, the key is to prepare your packet well -- to not place superfluous medical evidence into the pile; to not just make a complete copy of your medical records (OPM is not interested in medical records dating back more than 2 years, at most, and in most cases, should only go back 1 year) and send it in, hoping that the sheer thickness of your file will convince and persuade OPM that your case is "serious"; instead, to make your packet neat, essential, and to the point. Think about it in pragmatic terms: If you have a project to tackle, and you have a choice to tackle the one with little or no effort, or that "other one" that is a headache and will consume your entire day, which one entices you?

Sincerely, Robert R. McGill, Esquire