Loan Modification, Loss Mitigation, and Doing Everything You Can To Save Your Home

If you're behind on your mortgage or facing default on your mortgage payments, and want to keep your home, you should speak to a home preservation specialist or an attorney immediately. The loan modification process (part of a suite of potential alternatives to foreclosure your mortgage servicer refers to as "loss mitigation") is fraught with chances to misstep, which despite your best efforts may cost you your home. Many of those missteps may not be your fault, and without the assistance of counsel or a HUD-certified housing counselor you may not recognize them or be able to prove that your servicer is to blame. 

Since January 2014, many servicers have had to follow regulations that demand they meet strict deadlines and disclose a great deal of information about your loss mitigation application, your eligibility and ineligibility for various alternatives to foreclosure, and your right to appeal their determination of eligibility or ineligibility. If they follow these guidelines, their customers are likely to reach an outcome that is beneficial to them. However, if they do not follow these regulations, servicers may be liable for damages, which, in some cases, could pay a portion or all of a homeowner's past-due payments. 

Unfortunately, even with counsel, fault can be difficult to prove, but there are a few things you can do to protect yourself and help your attorney reach a good outcome. 

1. Never trust that your servicer's advice is in your best interest.

We hear it all the time: servicers tell their customers that they need to be in default in order to be considered for a loan modification. Servicers advise homeowners "not to worry" about the foreclosure lawsuits they file against homeowners, explaining that it's "just something our collections department does". They tell homeowners that all they have to do is keep working on a loan modification and not to respond to the lawsuit. 

Despite providing advice and guidance to its customers, if you're in foreclosure, your servicer will flatly deny any advice it gave was meant to be relied upon, since it is a business and is concerned foremost for the interest of its shareholders, not its customers. That does not mean that it cannot be held to account for advice it has given you or promises it has made, but it does mean that you will be in for a fight if you have followed your servicer's advice to your detriment. Don't trust your servicer without verifying the advice you're getting from the servicer by asking a lawyer or housing counselor about the advice. Following this rule will help protect you from some of the worst abuses. 

2. Keep everything your servicer sends you.

Especially when you're in default and applying for some sort of loss mitigation, you should receive a lot of letters from your servicer. All of them are important, and many are governed by the regulations linked above. You should keep all of these letters. Moreover, since you cannot always trust that a letter was sent on the date it claims, you should keep all of the envelopes these letters come in. The envelope will have a postmark date on it, which can be invaluable when trying to prove a required deadline was not met.

3. Keep a copy of everything you send your servicer.

One of the disclosures your servicer must send you is a notice that your application is not complete. It must outline what documents are missing and give you an opportunity to send them. If you do not provide necessary documentation, your servicer can deny you any loss mitigation option. Keeping a copy of what documents you've sent -- and when and how you sent them -- may protect you and assist you on any appeal of a negative determination.

4. Take notes.

When speaking with your servicer on the phone, make a note of when the phone call took place, who you spoke with, and what advice or guidance the servicer provides you. 

CFPB and You: Proposed New Rules for Payday Lenders

Cash Express in Kentucky

The Consumer Financial Protection Bureau has issued proposed new rules for payday lenders, with the goal of preventing what abuses it can in the industry. I say "what abuses it can prevent" because, unfortunately, the CFPB has no power to control interest rates, which in the payday lending industry reach astronomical highs. One interpretation of Kentucky's payday lending statute allows for an annual interest rate exceeding 400%. So, seeing that almost 80% of borrowers must re-borrow after 14 days because they can't afford the fees, the CFPB took aim at preventing the "debt trap" by going to the "source": people who borrow more than they can afford to pay back.

The proposed rules require that lenders evaluate potential borrowers' ability to repay before they loan to them. The idea is that this will prevent people from continuing re-borrow every two weeks or month because they cannot afford to pay the entire amount. The way this works in Kentucky, a person may go to a payday lender, borrow $500.00 and have to pay back $589.25 in two weeks. Most often, when the two weeks is up, the person cannot afford to pay $589.25, so they bring in that amount but immediately re-borrow another $500.00 (with another $89.25 fee due in two weeks). Left unchecked, that can mean over $2,000.00 solely in fees per year, without the borrower even beginning to pay down their principal balance. The CFPB believes that if lenders can only loan to borrowers that can repay by the due date, it can prevent harm to borrowers who can't. 

For the borrowers who would otherwise be unable to get payday loans, the rules also propose two options that do not require looking at the borrower's ability to repay. The first requires that, if the borrower is unable to repay their loan when due, the lender can provide subsequent loans, but must reduce the principal each time. The second allows the lender to offer two more loans at the same interest rate, but then must provide an "off-ramp" to the borrower wherein they can pay back the principal without additional fees. 

In any of these cases, a borrower could only receive three loans before having to "cool off" and wait 60 days for the next loan. During that time, I do not know where they might turn if they need additional money. Hopefully, not to the even worse option of online lenders.

While these measures may all help if adopted,  my hope is that instead of these "last resorts," people will turn to less onerous means of making ends meet. Payday loans seem quick and easy, but they are anything but.

Identifying Scammers: The IRS Doesn't Make Phone Calls

April 15th is fast approaching and that means that telephone scammers are out in force trying to scare you into giving them money, or worse, enough personal information to steal your identity. Generally speaking, whether a phone call is a scam can be hard to determine. Not so when it comes to IRS impersonators!

NPR reported, straight from IRS Commissioner John Koskinen's mouth, that if a caller claims to be from the IRS, they aren't:

"If you are surprised to be hearing from us, you are not hearing from us," Koskinen said. "Our way of contacting you is by letter."

He went on to say that the IRS will never call you to threaten you for not paying your taxes:

"The last thing you'll ever hear from an IRS agent of any kind is threats that we are about to throw you in jail unless you pay us immediately or put money into a particular account," he said.

So remember, even if they know your name, your telephone number, and the last four digits of your Social Security Number, it's not the IRS calling you. The IRS has made it easy for you. Be sure to tell your friends and family members, especially if they are elderly.

For Sale: Perfectly Good Macbook Air

Ben Carter Law is upgrading its technology, which is a fancy way of saying I'm getting a new computer. Ergo, I'm selling my mid-2011 11" MacBook Air. When I bought it, I maxed out the processor (1.8 gHz), RAM, (4 gig) and hard drive (256 gig), so it is still plenty fast for web browsing, word processing, email, and other common tasks. I'm updating because my computer is the primary tool I use to do my job and so having the newest, fastest, best makes business sense.

New, the computer was $1,700. I'm asking $700.

Technical specifications for the mid-2011 11" Macbook at Apple.com

Monoprice.com: Less Jingle for Your Dongles

I know not everyone is a nerd. This is for you non-nerds. Stop paying tons of money for HDMI cables at Best Buy. Stop paying tons of money for stupid cables, connectors, widgets, and dongles, period. 

If you need to plug something into a piece of electronic equipment and plug the other end into another electronic device or a wall, go to monoprice.com

They even sell guitars. If you want to take the money I saved you on cables and buy yourself a guitar, well, for those about to rock, I salute you

Unlicensed online lenders are illegal in Kentucky

Josh Goodnewt attended a webinar hosted by the National Association of Consumer Advocates last week about what to do to help victims of online lending schemes. This post contains some general information about steps you may want to consider taking if you are tangled up with an online lender. As always, please consult with legal counsel about your particular situation before acting.

Hopefully you found this post before you ever borrowed money from an internet lender, and you’re just searching for information about whether you should get a loan from an internet lender. If so, don’t do it. Unlicensed online lending is illegal in the Commonwealth of Kentucky. And it’s a trap.

Well, actually it’s several traps:

First, before you ever borrow, just putting your information into an internet lender's website opens you up to wrongdoers. The website you give your information to is most often not the lender. Instead, it is a lead generator — meaning you give them information, and they sell it as a “lead” to potential lenders who will then offer you a loan. Once that information is in that lead generator’s hands, they may keep selling it or misuse it and you could lack much of a recourse if they do.

Second, once you get the loan you’re charged exorbitant interest rates so that even if you timely make your payment, you may never actually pay down the principal balance.

Third, you are often required to authorize the lender to take money directly from your account via ACH (automated clearinghouse) transactions or EFT (electronic funds transfer) payments. The lender will continue to withdraw these payments until the balance is paid off. Since the interest rate is so high, you won’t likely be able to pay down the loan and the withdraws will continue perpetually.

Fourth, if you find a way to stop making payments, you’re in for a lot of harassment. Any information you gave that lead generator now may be used to harass or threaten you. They will not necessarily limit to calling you on whatever phone number you left them, but may call your employer if you listed it, or anyone you listed as your references. They may report the debt to credit reporting agencies and damage whatever credit you may have, which may affect your ability to gain future employment or an apartment.

So, hopefully you didn’t open yourself up to any of that! Unfortunately you probably have, and if so there are a few steps you can take.

  1. Withdraw your ACH authorization for ALL DEBITS by notifying the lender in writing. You can mail it to their address or attach it to an email.
  2. Notify your bank immediately that you have withdrawn your authorization for ALL DEBITS from that lender. Tell your bank that these and future debits from that lender are “Unauthorized Debits”
  3. Open up a new bank account at a different financial institution and notify any direct depositors of the new account.
  4. Close the account the lender is debiting.
  5. Dispute with the bank ALL of the debits made by the online lender.

If you have borrowed money from an online lender, following these steps may be your best bet to ending the constant withdrawals. Remember, you have done nothing wrong. If your lender lacks a license in Kentucky, you are being scammed by an illegal lender and you are under no obligation to pay the lender back. KRS 286.4-991.

Unfortunately, there is rarely much that can be done to these scammers. However, if you have any questions about any of the above, feel free to contact us at Ben Carter Law, PLLC.

Use LibreOffice to Access .doc and .wpd Files on a Mac

As a Mac-using lawyer, I often have to solve the problem of how to work with legacy file formats. An awful lot of very good attorneys have done very good work using programs like Microsoft Word (.doc) and WordPerfect (.wpd). When these attorneys are kind enough to send me their pleadings and letters and research outlines in these formats, I use LibreOffice to open them on my Mac. 

From there, I can plagiarize the work of other, smarter attorneys into my new Pages document. (A few years ago, I switched from Word for the Mac to Pages due to stability issues.)

LibreOffice is a project of the The Document Foundation (which has created office productivity programs for spreadsheets and presentations, as well). If you download LibreOffice, I highly recommend you donate to support the Foundation (though I have tried twice in the past few weeks (so that I can practice what I preach here) only to have the process of donating fail...doh!).  

Defining "Consumer Law"

When people ask me what I do, I usually tell them, "I make bad jokes on the internet." When they ask me what I do for money, I tell them I'm a consumer lawyer. If they're not too proud to admit to not knowing what consumer law is, they'll ask, "What is consumer law?" 

Here is a little mailer I sent out to fellow lawyers last year explaining what kinds of cases I handle as a "consumer lawyer".

Somehow, though, I think that just describing the kind of work that consumer lawyers do and the kinds of cases they take misses the point a bit. It gets to the what, but not the why of consumer law. 

But, I recently had the opportunity to speak to about a hundred newly-minted attorneys at the KBA's New Lawyer Program about Kentucky consumer law. My Lebowski-themed presentation about consumer law touched on many of the same areas I listed in the mailer: the Kentucky Consumer Protection Act, debt collection abuse, insurance bad faith, auto fraud, the Kentucky Lemon Law, etc. 

Before I ran through those specific state and federal statutes protecting consumers, though, I gave Kentucky's newest lawyers my freshest take on what consumer law is. I told them that being a consumer lawyer means applying all of your skill, training, and heart to the legal problems that impact low- and middle-income Americans. It means using the laws (common, local, state, and federal) to protect the bottom lines of the most fragile budgets in America. 

Rather than defining consumer law as a kind of case or a particular set of statutes, I want to broaden my definition of consumer law to "practicing law with the goal of helping low- and middle-income American families achieve and sustain financial stability". 

This definition allows me a broader self-concept of "what I do", aligns me more explicitly with the work of allies seeking those same ends through lobbying and public education efforts (rather than my more litigious efforts), and provides me a "North Star" when charting the work I want my firm to do. way forward for my firm. helps me evaluate the direction I want to take my firm. Anything that threatens the financial stability of economically vulnerable people—foreclosure, eviction, abusive debt collection, auto fraud, unfair or misleading business practices, repossession, bad faith claims adjusting from insurance companies—that's what I fight.

Practicing with a goal of helping people avoid the threats to their bottom line motivates me to pay attention to the evolving landscape of threats out there. Every year, it seems, there's a new problem, whether it's vacant and abandoned property, unpaid tax bills on real estate, starter interrupt devices on cars. There's a scammer born every minute. 

Practicing consumer law is much, much broader than using the statutes we typically think of when we think of "consumer law" statutes. It means aligning yourself with  economically fragile families and individuals and using the best, bravest version of yourself to defend them from the flinty-eyed predators stalking your clients and senseless corporate machinery that will consume them without ever thinking once.

You Know You're Not Great. Keep Going.

I think this insight from Ira Glass on why people give up on storytelling is so relevant to the experience of many beginning attorneys and attorneys who are struggling to start their own practices. We see others doing it. We recognize excellence. We know who the "masters" are and know that we are not masterful. 

The impulse when faced with your own clumsiness and inexperience is toward self-deprecation and despair. In this two-minute pep talk, Ira Glass tells us to keep going. The only way to become a master is to keep working. One reason I love being a solo attorney is that I have no choice but to keep working, keep moving forward, even (especially) when my skills fall short of my taste. 

Kentucky Consumer Law Outline

Tomorrow, I have the opportunity to talk for an hour about consumer law at the Kentucky Bar Association's New Lawyers Program. In anticipation of the presentation (and so I didn't have to fill my slides with text), I prepared a non-comprehensive outline about many of the common law causes of action, state laws, and federal statues that constitute "Consumer Law". 

Below is the outline with some hyperlinks, but because the formatting will never be right in this post, here is a .pdf of the Kentucky Consumer Law Outline. Use it instead. In case you thought it might be, I need to say that this consumer law outline is absolutely not legal advice, dummy.  

And, yes, the presentation will have a Lebowski theme. 

I do mind, man. The dude minds. This aggression will not stand, man. 

I do mind, man. The dude minds. This aggression will not stand, man. 

▾    1    Kentucky Consumer Protection Act

    ▾    1.1    Legislative Intent

        1.1.1    KRS 367.120 “The General Assembly finds that the public health, welfare and interest require a strong consumer protection program to protect the public interest and the well-being of both the consumer public and the ethical sellers of goods and services…”

        1.1.2    “The Kentucky legislature created a statute which has the broadest application in order to give Kentucky consumers the broatest possible protection for allegedly illegal acts. In addition, KRS 446.080 requires the statutes of this Commonwealth are to be liberally construed.” Stevens v. Motorist Mutual Ins. Co., Ky. S.W. 2d 819 (1988). 

        1.2    Who is protected?

        1.2.1    Statutory Language

        1.2.1.1    Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by KRS 367.170, may bring an action under the Rules of Civil Procedure in the Circuit Court in which the seller or lessor resides or has his principal place of business or is doing business, or in the Circuit Court in which the purchaser or lessee of goods or services resides, or where the transaction in question occurred, to recover actual damages. The court may, in its discretion, award actual damages and may provide such equitable relief as it deems necessary or proper. Nothing in this subsection shall be construed to limit a person's right to seek punitive damages where appropriate. Ky. Rev. Stat. Ann. § 367.220

        1.3    Who’s Covered in Practice

        1.3.1    A person (not business) who “purchases or leases goods or services primarily for personal family, or household purposes”

        1.3.1.1    But the absence of a finding of a valid contract is not fatal to a claim for unfair trade practices under the KCPA as it would be to a breach of contract claim. Nothing in the KCPA—particularly KRS 367.170 and KRS 367.220—explicitly requires that a binding contract be reached for a purchaser damaged by unlawful trade practices to have a private right of action. Rather, because Piles and Warner qualified as purchasers under the KCPA, they were entitled to sue for any damages resulting from unfair trade practices by Sonny Bishop Cars under KRS 367.220. Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 903 (Ky. 2008);

        1.3.2    Renters

        1.3.2.1    In both matters the tenant asserts that the landlord's failure to make needed repairs and his violations of the local housing code constitute unfair, false, misleading or deceptive acts. As a violation of a housing code does not create a cause of action in favor of the tenant, the failure of the landlord to comply with a housing code cannot be deceptive in the absence of an express covenant or agreement that the landlord would comply with such housing code. Likewise, in the absence of a duty or obligation *519  to make repairs to a rental unit, the failure to make such repairs cannot be construed to constitute an unfair, false, misleading or deceptive act. Miles v. Shauntee, 664 S.W.2d 512, 518-19 (Ky. 1983)

        1.3.3    Homebuyers/Homeowners

        1.3.3.1    “That brings us to the violation of the Kentucky Consumer Protection Act, KRS 367.110, et seq. The jury did make a finding of a breach, but with zero damages. We need not get into a discussion as to whether the verdict is an oxymoron because we do not believe that the Kentucky Consumer Protection Act applies to real estate transactions by an individual homeowner.” Craig v. Keene, 32 S.W.3d 90, 91 (Ky. Ct. App. 2000)

        1.3.3.2    Summary: Buyers of “as is” mobile home can still maintain causes of action for fraudulent misrepresentation and KCPA. Elendt v. Green Tree Servicing, LLC (Ky.App. 2014) 443 S.W.3d 612.

        1.3.4    People Seeking the Extension of Credit

        1.3.4.1    A federal court has interpreted case law and the KCPA to determine that the sale of credit, so long as it was purchased for personal use, is covered by KCPA. Stafford v. Cross Co. Bank, 262 F. Supp. 2d 776, 792-3 (W.D.Ky. 2003).

        1.3.5    Purchasers of Insurance Policies

        1.3.5.1    “It is the holding of this Court that the Kentucky Consumer Protection Act provides a homeowner with a remedy against the conduct of their own insurance company pursuant to KRS 367.220(1) and KRS 367.170.” Stevens v. Motorists Mut. Ins. Co., 759 S.W.2d 819, 821-22 (Ky. 1988)

        1.4    What are they protected from?

        1.4.1    Statutory Language

        1.4.1.1    KRS 367.170: (1) Unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

(2) For the purposes of this section, unfair shall be construed to mean unconscionable.

        1.4.1.2    “The terms ‘false, misleading and deceptive’ has sufficient meaning to be understood by a reasonably prudent person of common intelligence. Therefore, when the evidence creates an issue of fact, that any particular action is unfair, false, misleading or deceptive it is to be decided by a jury.” Stevens v. Motorist Mutual Ins. Co., 759 S.W.2d 819, 820 (Ky. 1988). 

        1.5    What are they not protected from?

        1.5.1    Not covered: incompetence

        1.5.1.1    “While there can be no doubt Gamble was initially buried in the wrong plot in contravention of the burial contract, ‘[n]ot every failure to perform a contract is sufficient to trigger application of the Consumer Protection Act. The statute requires some evidence of “unfair, false, misleading or deceptive acts” and does not apply to simple incompetent performance of contractual duties unless some element of intentional or grossly negligent conduct is also present.’” Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538, 546 (Ky. Ct. App. 2013) quoting Capitol Cadillac Olds, Inc. v. Roberts, 813 S.W.2d 287, 291 (Ky.1991).

        1.5.2    Not covered: “mere breach of promise”

        1.5.2.1    A mere breach of promise does not constitute an unfair, false, misleading or deceptive act. The facts in Miles v. Shauntee indicate that the landlord made assurances of repair which were never significantly honored or fulfilled. This Court cannot hold as a matter of law that such assurances constitute unfair, false, misleading or deceptive acts declared unlawful under the Consumer Protection Act. Miles v. Shauntee, 664 S.W.2d 512, 519 (Ky. 1983).

        1.5.2.2    But, breach of promise to do something in the future is actionable when there is no present intent to perform that future act.

        1.5.2.2.1    An accepted rule is, a misrepresentation, to be actional, must concern an existing or past fact, and not a future promise, prophecy, or opinion of a future event, unless declarant falsely represents his opinion of a future happening.” “One may commit ‘fraud in the inducement’ by making representations as to his future intentions when in fact he knew at the time the representations were made he had no intention of carrying them out.” 

PCR Contractors, Inc. v. Daniel, 354 S.W.3d 610, 614 (Ky. App. 2011) quoting Bear, Inc. v. Smith, 303 S.W.3d 137, 142, 614 (Ky. App. 2010).

        1.6    Damages

        1.6.1    Compensatory Damages

        1.6.1.1    Logical and natural consequences

        1.6.1.1.1    Diminished value

        1.6.1.1.2    Higher repair costs

        1.6.1.1.3    Time missed from work dealing with issue

        1.6.1.1.4    Inconvenience

        1.6.1.1.4.1    Clearly, the inconvenience award was not duplicative of the loss of use award. No loss of use award was permitted for Piles.21 Thus, without an inconvenience award to her, Piles would stand to recover no compensatory damages at all, despite testimony that she had to miss work and suffered difficulties at her job caused by constant telephoning and trips to the dealership. Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 907 (Ky. 2008);

        1.6.1.2    Mental and emotional suffering

        1.6.1.2.1    No case that says damages for mental and emotional suffering are available under KCPA. No Kentucky case says they’re not. 

        1.6.1.2.1.1    “Defendants also assert that Plaintiffs are not entitled to mental suffering or emotional distress damages. Kentucky courts have been clear that these types of damages are not recoverable under a contract-type cause of action. See, e.g., Combs v. Southern Bell Tel. & Tel. Co., 38 S.W.2d 3, 5, 238 Ky. 341, 345-46 (Ky.1931). Plaintiffs cite no persuasive authority to the contrary. No Kentucky court has concluded that the KCPA entitles plaintiffs to mental suffering or emotional distress damages. This Court declines to do so now.” Peacock v. Damon Corp., 458 F. Supp. 2d 411, 420 (W.D. Ky. 2006);

        1.6.2    Rescission (equitable relief)

        KRS 367.220 explicitly allows the Court the power to “in its discretion, award actual damages and may provide such equitable relief as it deems necessary or proper.”

        1.6.3    Punitive Damages

        1.6.3.1    KRS 367.220(1): Nothing in this subsection shall be construed to limit a person’s right to seek punitive damages where appropriate. 

        1.6.3.2    Because actual damages will likely be relatively small, punitive damages in consumer cases can be larger than punitive damages in other kinds of cases.

        1.6.3.2.1    “It appears that the amount of the punitive damages award was rationally imposed by the jury to serve the deterrent effect for which punitive damages were designed, especially in consumer protection cases where the economic harm is relatively small.” Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 906–07 (2008);

        1.6.3.2.2    The United States Supreme Court has provided three factors trial courts may consider:

1) the degree of reprehensibility of the conduct; 

2) the disparity between the actual harm and the punitive damages, generally expressed as a ratio; and

3) a comparison of penalties that could be imposed for similar conduct in similar analogous cases.   

Paraphrasing BMW v. Gore, 116 S.Ct. 1589, 1598–99 (1996.)

Of these three factors, the first—the degree of reprehensibility of the conduct—is the most important. See State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 419 (2003)

        1.6.4    Attorney’s fees should be included in the damages awarded when determining the reasonableness of the ratio between actual harm and punitive damages.

        1.6.4.1    In Willow Inn, Inc. v. Public Service Mut. Ins. Co., the Third Circuit Court of Appeals included the attorney’s fees into the ratio calculus of an insurance bad faith case (called a Section 8371 action in Pennsylvania). It explained, “Section 8371's attorney fees and costs provisions vindicate the statute's policy by enabling plaintiffs such as Willow Inn to bring § 8371 actions alleging bad faith delays to secure counsel on a contingency fee. Moreover, “one function of punitive-damages awards is to relieve the pressures on an overloaded system of criminal justice by providing a civil alternative to criminal prosecution of minor crimes,” Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 676 (7th Cir.2003), and the structure of § 8371 enlists counsel to perform a filtering function akin to prosecutorial discretion, because rational attorneys will refuse to work on a contingent fee arrangement when their investigation reveals the bad faith allegations of prospective clients to be meritless.” Willow Inn, Inc. v. Pub. Serv. Mut. Ins. Co., 399 F.3d 224, 236 (3d Cir. 2005).

        1.6.4.2    The Third Circuit noted that its decision to include attorney’s fees in the ratio analysis “is supported in the case law” and explained that a recent Pennsylvania state court decision also included the attorney’s fees incurred in a bad faith claim in the ratio analysis. This position has also been adopted by the 11th Circuit in Action Marine, Inc. v. Cont’l Carbon Inc., 481 F.3d 1302 (11th Cir. 2007) and Illinois state courts in Kirkpatrick v. Strosberg, 894 N.E.2d 781 (Ill. App. Ct. 2008).

        1.6.5    Attorney’s Fees

        1.6.5.1    KRS 367.220(3) In any action brought by a person under this section, the court may award, to the prevailing party, in addition to the relief provided in this section, reasonable attorney's fees and costs.

        1.6.5.2    The seminal case on the award of fees pursuant to the Kentucky Consumer Protection Act is Alexander v. S&M Motors, Inc., 28 S.W.3d 303 (Ky. 2000). That case holds that the award of fees is in the sound discretion of the trial court. In Alexander, the Kentucky Supreme Court explained that permitting the additional recovery of attorney’s fees in consumer protection cases serves two purposes. First, it is “intended to compensate the prevailing party for the expense of bringing an action under the statute.” The Court continued, “[a] further aim is to provide attorneys with incentive for representing litigants who assert claims which serve an ultimate public purpose (i.e. a deterrent to conduct resulting in unfair trade practices which perpetrate fraud and deception upon the public.)” Alexander at 305.;

        1.6.5.3    Attorney’s fees are determined by using the “lodestar method”

        1.6.5.3.1    In Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), the United States Supreme Court noted that “the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”

        1.6.5.3.2    You must keep your time contemporaneously. I suggest using a time-tracking service like Harvest (https://www.getharvest.com/) to capture and track time. 

▾    2    Kentucky Lemon Law (KRS 367.840, et seq.)

    ▾    2.1    Purpose

    •    2.1.1    Kentucky’s “Lemon Law” is intended to accomplish three goals: (1) To protect consumers who buy or lease new motor vehicles that do not conform to applicable warranties by holding manufacturers accountable for certain nonconformities; (2) To limit the number of attempts and the amount of times that a manufacturer or its agents shall have to cure such nonconformities; and (3) To require manufacturers to provide, in as expeditious a manner as possible, a refund, not to exceed the amount in KRS 367.842, or replacement vehicle that is acceptable to the aggrieved consumer when the manufacturer or its agents fail to cure any nonconformity within the specified limits.

Ky. Rev. Stat. Ann. § 367.840

        2.1.2    Note: the Magnuson-Moss Warranty Act (15 USC § 2301, et seq.) may also offer remedies for breach of warranty issues arising from the sale of a new vehicle. 

        2.2    Application

        2.2.1    Kentucky’s Lemon Law applies to new motor vehicles and not to: (a) Any vehicle substantially altered after its initial sale from a dealer to an individual; (b) Motor homes; (c) Motorcycles; (d) Mopeds; (e) Farm tractors and other machines used in the production, harvesting, and care of farm products; or (f) Vehicles which have more than two (2) axles.

Ky. Rev. Stat. Ann. § 367.841

        2.3    Process

        2.3.1    KRS 367.842 outlines the process and rights of consumers afflicted with a “lemon”.

        2.3.1.1    Consumers must give the manufacturer a “reasonable number” of attempts to repair any nonconformity.

        2.3.1.1.1    A presumption that the consumer has given the manufacturer a reasonable opportunity to repair the vehicle if he or she has a) returned the vehicle for repair of the same nonconformity 4 times or b) lost use of the vehicle for the nonconformity for more than 30 days. 

        2.3.1.2    The nonconformity must “sustantially impact” the “use, value, or safety” of the motor vehicle”.

        2.3.1.3    The consumer must report the failure to repair the nonconformity in writing to the manufacturer in the first 12 months or 12,000 miles of use, whichever comes sooner. 

        2.3.2    KRS 367.842(4) requires consumers to particpate in an informal dispute resolution process before filing suit

        2.3.3    Damages

        2.3.3.1    The consumer can choose between replacement of the vehicle or refunding the money he or she paid for the vehicle.

        2.3.3.1.1    Under KRS 367.842(2), “the manufacturer, at the option of the buyer, shall replace the motor vehicle with a comparable motor vehicle, or accept return of the vehicle from the buyer and refund to the buyer the full purchase price. The full purchase price shall include the amount paid for the motor vehicle, finance charge, all sales tax, license fee, registration fee, and any similar governmental charges plus all collateral charges, less a reasonable allowance for the buyer's use of the vehicle.

        2.3.3.2    A court may award reasonable attorney's fees to a prevailing plaintiff. KRS 367.842(9)

▾    3    Kentucky Repossessions

    •    3.1    There is an entire book published by the National Consumer Law Center on protecting consumers from repossession, prosecuting wrongful repossession, and helping consumers recover from repossessions.

        3.2    Reposssessions in Ketucky are governed by KRS 355.9-601, et seq.

        3.2.1    Repossessions must be 1) after default and must not 2) breach the peace.  KRS 355.9-609

        3.2.2    The repossessing business can resell the collateral but only after providing notice to the consumer KRS 355.9-610 and 9-611.

        3.2.3    Remedies for violations of UCC’s repossession provisions are located at KRS 355.9-625. 

▾    4    Usury

    ▾    4.1    Legal rate of interest

    ▾    4.1.1    KRS 360.010 states that the legal rate of interest is 8%

    •    4.1.1.1    On loans of $15,000 or less, the parties can contract for up to 19%, and

    •    4.1.1.2    On loans greater than $15,000, the parties can contract for whatever interest rate they want. 

        4.1.2    Damages under KRS 360.020

        4.1.2.1    The taking, receiving, reserving, or charging a rate of interest greater than is allowed by KRS 360.010, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the creditors taking or receiving the same: provided, that such action is commenced within two (2) years from the time the usurious transaction occurred.

        4.1.3    Often, businesses effectively charge interest greater than the legal or contractual rate by padding the deal with additional charges and fees. You must acquaint yourself with the case law on these statutes to determine whether certain charges are “interest” and therefore usurious. 

▾    5    Federal Laws

    ▾    5.1    Fair Debt Collection Practices Act (FDCPA)

    •    5.1.1    Protects people from abusive debt collection practices

    •    5.1.2    15 USC 41 § 1692, et seq. http://www.law.cornell.edu/uscode/text/15/chapter-41/subchapter-V

        5.1.3    Prohibits false or misleading representations, unfair practices, harrassment or abuse

        5.1.4    Again, the National Consumer Law Center publishes an entire book on this subject and some practitioners focus exclusively on prosecuting these claims.

        5.1.5    Report on Debt Collection from the Center for Responsible Lending: http://www.responsiblelending.org/state-of-lending/reports/11-Debt-Collection.pdf

        5.1.6    Damages

        5.1.6.1    § 1692k allows people to recover their actual damages suffered as a result of the violation, up to $1,000 in statutory damages, and attorney’s fees 

        5.1.7    This area of law is extremely rewarding and challenging. Abuse is rampant and the issues that arise are novel and nuanced.

        5.1.7.1    Conway v. Portfolio Recovery Associates, LLC, 13 F.Supp.3d 711 held that a person stated a cause of action for FDCPA violations when a debt collector that received payments in Virginia sued on the debt in Kentucky. Conway’s attorney argued that the debt collector violated the FDCPA because it sued beyond the statute of limitations of the debt and the Court held that the SOL that applied was Virginia’s (3 years), not Kentucky’s (5 or 15 years).  

        5.2    Fair Credit Reporting Act (FCRA) 15 USC § 1681 et seq. 

        5.2.1    Provides a mechanism for consumers to dispute inaccurate information on their credit reports and imposes penalties on credit reporting agencies and furnishers of credit information for failure to correct inaccuracies.

        5.2.2    FTC’s Summary of Consumer Rights under FCRA: https://www.consumer.ftc.gov/articles/pdf-0096-fair-credit-reporting-act.pdf

        5.2.3    Damages (§ 1681(n))

        5.2.3.1    Actual damages in any amount or statutory damages not to exceed $1,000

        5.2.3.2    Punitive damages

        5.2.3.3    reasonable attorney’s fees

        5.3    Truth in Lending Act (TILA) 15 USC ch 41  § 1601 et seq.

        5.3.1    Standardizes how fees and interest are calculated in consumer finance transactions

        5.3.2    Creates environment in which consumers can comparison shop by requring businesses to calculate the “true cost” of the loan and the “real” interest rate after taking into account fees, charges, and other costs of credit

        5.3.3    TILA’s specific requirements are in the awesome-sounding “Regulation Z”: 12 CFR 226

        5.4    Real Estate Settlement and Procedures Act (RESPA)

        5.4.1    The CFPB’s new Regulation X provides a private cause of action for violations of many of the regulations governing mortgage servicers. Read more here: http://www.consumerfinance.gov/regulations/2013-real-estate-settlement-procedures-act-regulation-x-and-truth-in-lending-act-regulation-z-mortgage-servicing-final-rules/

        5.5    Telephone Consumer Protection Act (TCPA): 47 USC § 227

        5.5.1    The Telephone Consumer Protection Act prohibits obnoxious and costly use of telephones. It limits the circumstances under which businesses can contact consumers and places meaningful restrictions on telemarketers and the use of automated dialing systems (“autodialers” or “robodialers”), text messages, voice recordings, and fax machines. 

        5.5.2    Damages

        5.5.2.1    Actual damages

        5.5.2.2    Statutory damages up to $1,500 per violation

        5.5.2.3    No attorney’s fees under the TCPA

▾    6    Other Causes of Action

    ▾    6.1    URLTA (Uniform Residential Landlord Tenant Act) KRS 383.505

    •    6.1.1    KRS 383.500 requires local governments to adopt URLTA in its entirety and without amendment. As of 2009, the following jurisditions had adopted URLTA’s provisions: Barbourville, Bellevue, Bromley, Covington, Dayton, Florence, Lexington-Fayette County, Georgetown, Louisville-Jefferson County, Ludlow, Melbourne, Newport, Oldham County, Pulaski County, Shelbyville, Silver Grove, Southgate, Taylor Mill and Woodlaw. 

        6.1.2    Remedies include a private right of action

        6.1.2.1    KRS 383.520: (1) The remedies provided by KRS 383.505 to 383.715 shall be so administered that an aggrieved party may recover appropriate damages. The aggrieved party has a duty to mitigate damages. (2) Any right or obligation declared by KRS 383.505 to 383.715 is enforceable by action unless the provision declaring it specifies a different and limited effect.

        6.1.2.2    No decision on whether attorney’s fees are “appropriate damages” under URLTA. 

        6.2    Equitable Estoppel: Fluke Corporation v. LeMaster, 306 SW 3d 55 (Ky. 2010). 

        6.2.1    Under Kentucky law, equitable estoppel requires both a material misrepresentation by one party and reliance by the other party:

The essential elements of equitable estoppel are[:] (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. And, broadly speaking, as related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

        6.3    IIED

        6.3.1    In certain circumstances, unscrupulous businesses’ actions will rise to the level of Intentional Infliction of Emotional Distress.

        6.3.2    Our Commonwealth first adopted the tort of intentional infliction of mental distress in the case of Craft v. Rice, Ky., 671 S.W.2d 247 (1984). In Craft, we adopted Restatement (Second) of Torts, section 46, and recognized the elements of proof necessary for this new tort: 1. The wrongdoer's conduct must be intentional or reckless; 2. The conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; 3. There must be a causal connection between the wrongdoer's conduct and the emotional distress; and 4. The emotional distress must be severe. Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996)

        6.4    Breach of Contract

        6.4.1    Of course, in many cases, not only will you have KCPA violations and tortious activity, you will also have breach of contract claims. 

        6.5    Insurance Bad Faith

        6.5.1    Kentucky’s Unfair Claims Settlement Practices Act (KRS 304.12-230) supplements common law “bad faith” administration of insurance claims.

        6.5.2    It prohibits specific activities that are unfortunately common during the process of making a claim for coverage including, but not limited to, “failing to acknowledge and act reasonably promptly upon communications”, failing to investigate claims, “failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed”, and “not attempting in good faith to effectuate prompt, fair, equitable settlements of claims in which liability has become reasonably clear.” Reading the entire statute and surrounding jurisprudence is, of course, necessary. 

        6.6    Fraud

        6.6.1    Elements

        6.6.1.1    In a Kentucky action for fraud, the party claiming harm must establish six elements of fraud by clear and convincing evidence as follows: a) material representation b) which is false c) known to be false or made recklessly d) made with inducement to be acted upon e) acted in reliance thereon and f) causing injury. Wahba v. Don Corlett Motors, Inc., Ky.App., 573 S.W.2d 357, 359 (1978). United Parcel Serv. Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999)

        6.6.2    Promises of future performance

        6.6.2.1    An accepted rule is, a misrepresentation, to be actional, must concern an existing or past fact, and not a future promise, prophecy, or opinion of a future event, unless declarant falsely represents his opinion of a future happening.” “One may commit ‘fraud in the inducement’ by making representations as to his future intentions when in fact he knew at the time the representations were made he had no intention of carrying them out.” 

PCR Contractors, Inc. v. Daniel, 354 S.W.3d 610, 614 (Ky. App. 2011) quoting Bear, Inc. v. Smith, 303 S.W.3d 137, 142, 614 (Ky. App. 2010).

        6.6.3    Fraudulent Omission

        6.6.3.1    This subset of “fraud” is a common cause of action in consumer law practice.

        6.6.3.2    To prevail on a claim of fraudulent omission, a plaintiff must prove: (a) a duty to disclose a material fact; (b) a failure to disclose a material fact; and (c) that the failure to disclose a material fact induced the plaintiff to act and, as a consequence, (d) to suffer actual damages. Rivermont Inn, Inc. v. Bass Hotels & Resorts, Inc., 113 S.W.3d 636, 641 (Ky.App.2003). A caveat to the necessary elements under either claim is that “mere silence does not constitute fraud where it relates to facts open to common observation or discoverable by the exercise of ordinary diligence, or where means of information are as accessible to one party as to the other.” Bryant v. Troutman, 287 S.W.2d 918, 920–921 (Ky.1956). Waldridge v. Homeservices of Kentucky, Inc., 384 S.W.3d 165, 171 (Ky. Ct. App. 2011).;

        6.6.3.3    A duty to disclose facts is created only where a confidential or fiduciary relationship between the parties exists, or when a statute imposes such a duty, or when a defendant has partially disclosed material facts to the plaintiff but created the impression of full disclosure. Dennis v. Thomson, Ky., 240 Ky. 727, 43 S.W.2d 18 (1931). Rivermont Inn, Inc. v. Bass Hotels & Resorts, Inc., 113 S.W.3d 636, 641 (Ky. Ct. App. 2003);

        6.6.3.4    Beyond these three situations cited in Rivermont in which a duty arises, Kentucky courts have found other circumstances in which a party may commit fraudulent concealment:

        6.6.3.4.1    A duty to disclose may arise from a fiduciary relationship, from a partial disclosure of information, or from particular circumstances such as where one party to a contract has superior knowledge and is relied upon to disclose same. Smith v. Gen. Motors Corp., 979 S.W.2d 127, 129 (Ky. Ct. App. 1998)

        6.6.3.4.2    We may readily agree with the appellants that mere silence with respect to something related to a transaction is not necessarily misrepresentation and does not itself constitute fraud. However, it is otherwise when the circumstances surrounding a transaction impose a duty or obligation upon one of the parties to disclose all the material facts known to him and not known to the other party. The suppression or concealment of the truth under such circumstances may constitute a means of committing a fraud as well as misrepresentation openly made. Since the beginning of our jurisprudence, the principle has been consistently adhered to that the concealment by a seller of a material defect in property being sold, or the suppression by him of the true conditions respecting the property, so as to withhold from the buyer information he is entitled to, violates good faith and constitutes deception which may relieve the buyer from an obligation or may permit him to maintain an action for damages or to vacate the transaction. Hall v. Carter, 324 S.W.2d 410, 412 (Ky. 1959)

        6.7    Negligent Misrepresentation

        6.7.1    A majority of jurisdictions have adopted Restatement (Second) of Torts § 552, which outlines the elements of negligent misrepresentation as follows:(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction. Presnell Const. Managers, Inc. v. EH Const., LLC, 134 S.W.3d 575, 580 (Ky. 2004)

▾    7    Foreclosure Defense

        7.1    See outline that follows

        7.2    Foreclosure Defense includes helping your client rigorously pursue all loss mitigation options

        7.2.1    http://www.makinghomeaffordable.gov/for-partners/understanding-guidelines/Documents/mhahandbook_41.pdf

Kentucky Car Dealers Using GPS and Starter Interrupt Devices in Greater Numbers

The New York Times wrote a good article a couple of weeks ago on a phenomenon I’m seeing more and more in my car fraud practice: used car dealers are now installing GPS and SID (Starter Interrupt Devices) on the cars they sell. While everyone knows what a GPS does, these GPS devices don’t sit on the dashes of cars and help drivers navigate to their destinations. Instead, they allow dealers and finance companies to track the whereabouts of cars for repossession. 

Meanwhile, the Starter Interrupt Device is less well-known and even more dangerous. It does exactly what it says it does: it allows a dealer or finance company to interrupt (i.e. prevent) the car from starting. Dealers and finance companies can “flip the switch” on the SID remotely. So, they never have to leave their office (and sometimes can deploy it from a smartphone) and with the flip of a digital switch can make a vehicle stop working. (If properly installed, the SID will not stop a vehicle that is in motion, but that does not fix the safety concerns of being stranded.)

Some dealers disclose the existence of these devices to consumers, some don’t. Those who do disclose their use of the device often try to explain that these devices “help locate the vehicle if it is stolen”. While that may be true, the actual purposes are to a) locate the vehicle for repossession and b) incentivize the consumer to make payments by preventing the consumer from using the vehicle if he or she misses a payment. 

The used car industry’s expanding use of these devices raises many potential legal issues that have yet to be litigated in Kentucky. A leading attorney advising the used car industry has described both 1) failing to disclose a GPS or SID and 2) charging consumers for the devices as among the “Ten ‘Worst Practices’ for Dealers”. Failing to disclose the existence of a GPS and/or SID on a new or used vehicle may be a violation of the Motor Vehicle Retail Installment Sales Act. 

Another area ripe for abuse is in the repossession of a vehicle by use of a Starter Interrupt Device. Aside from the safety issues raised by someone crippling a vehicle remotely, a dealer’s use of a Starter Interrupt Device can potentially violate, among other laws, the Uniform Commercial Code and the Kentucky Consumer Protection Act. 

If you discover that a car dealer sold you a vehicle equipped with a GPS or SID unit without disclosing it to you, you need to contact an attorney to explore your legal rights. You can find a consumer attorney in your state at the National Association of Consumer Advocate’s website.  

John Oliver on Payday Loans: "Do Anything Else"

Last night, I had a chance to watch John Oliver's great takedown of one of America's worst industries: the payday loan industry. 

The whole thing is great, but I seriously want a Kickstarter to buy TV time for Sarah Silverman's ad at the end of this clip about the best options for people considering taking out a payday loan. 

In Kentucky, payday loan companies charge an average annual interest rate of 391%. The Kentucky Coalition for Responsible Lending is trying to pass legislation that would cap that interest rate at the still-exorbitant price of 36%. I applied to become a member of KCRL today. You should, too. 

If you are struggling with repaying payday loans or other debts, please contact an attorney to get advice on the best way to gain control over your financial life. 

Technology for a Law Office: 60 Tips in 120 Minutes

Thought Technologies

Equipment        

Technology Hygiene        

Law Practice Management        

Tools for Doing Law

Getting Better

Being Online        

Analog Technologies        

Louisville Jury Refuses to Tolerate Car Dealer's Deceptive Practices

I spent Tuesday, Wednesday, and Thursday of this week trying a car fraud case in Jefferson Circuit Court. It was my first trial as a lead attorney and the first case Ben Carter Law has taken to trial. 

My client, Renay Seals, alleged that the Defendant, Mak Cars, Inc dba Unique Motorsports (Mak Cars also does business in Louisville as Hot Deals on Wheels Used Cars) sold her a car with more than 245,000 miles on it after assuring her that a) the car only had 54,000 additional miles on it beyond the 21,420 on the odometer and b) the car was eligible for a 24 month/24,000 mile warranty. 

Tommie Seals, Renay's son, with the 2006 Dodge Charger the day after Renay purchased it from Mak Cars, Inc. Tommie and Renay would learn the truth about the car—that it had at least 245,000 miles on it and was not eligible for an extended warranty—a month later. 

Tommie Seals, Renay's son, with the 2006 Dodge Charger the day after Renay purchased it from Mak Cars, Inc. Tommie and Renay would learn the truth about the car—that it had at least 245,000 miles on it and was not eligible for an extended warranty—a month later. 

The jury found that Mak Cars, Inc violated the Kentucky Consumer Protection Act and ordered the Defendant to pay Renay: 

  • $13,927.42, the price Renay paid for the 2006 Dodge Charger;
  • $5,000 for the anxiety, humiliation, and frustration Mak Cars's deception caused her; and
  • $245,000 in punitive damages. 

The jury also found that my client was 10% responsible for what happened, which reduces the amount of the judgment for the purchase price and mental suffering by the same proportion. 

There are three great things about this verdict. (Okay, there are a lot more than three, but I want to talk about three here.)

First, Renay is from Louisiana. The only experience she had with Louisville, Kentucky was coming here to look at a car she thought had 21,240 miles on it and getting hosed. With its verdict, the jury said, "What happened to you is not acceptable. It's not how we treat people here." Renay and her son left Louisville yesterday knowing that Louisville, Kentucky has good people in it. 

Second, I had a chance to talk with some jurors after the case. One of them said, "Do you know why we set punitive damages at $245,000?" We had set the maximum amount we could recover at $250,000, so I told her I just thought they didn't want to give the max.

"No, we set it at $245,000 because that was how many miles the car had on it. We thought that would be an appropriate symbol to deter other dealers from doing something like this."

AWESOME. This shows the jury was thinking even harder than I was about this case. Which I didn't think was possible until it was. 

Third, another juror told me that the jury wanted to write on the verdict that Renay had to spend a little bit of the money it ordered Defendant to pay her to return to Louisville and attend Derby next year. This jury was truly appalled that someone from out of town was treated so badly by a Louisville business.

Yesterday was a great day for my client: the jury validated her 18-month fight both out and then in court with a company that had done her wrong. It was a great day for me: it was a scary thing to go to trial on my own for the first time. And, I hope, the jury's verdict will help other Kentucky consumers and their attorneys get fair compensation for wrongs done to them.

Before Renay and Tommie hit the road yesterday, I made them let me take a selfie with them. 

Before Renay and Tommie hit the road yesterday, I made them let me take a selfie with them. 

Law Office Equipment Guide

In many ways, equipping a small law office has never been easier or less expensive. However, if you do it wrong, you can definitely end up spending a ton of money and inviting a bunch of hassle and disappointment into a job with plenty of hassle and frustration in it already. 

In this post, I've tried to compile the best equipment for law offices. It is difficult to discuss law office equipment without some tangential considerations to the software a law office will use to get its work done, but—as far as possible—I've tried to separate the two and limit this post to actual products with protons and neutrons rather than the 0s and 1s of software. (I am aware that protons, neutrons, and electrons also create the 0s and 1s.)

Here are the assumptions I've made in making these recommendations:

  1. You don't want a lot of paper in your office. 
  2. You don't have a ton of dough. 
  3. You want to be relatively mobile. 
  4. You don't like hassles and friction. 

That is to say, these are recommendations for solo and small firms and those lawyers in government or big firms with enough authority to demand a certain amount of autonomy in how they get their work done. 

Annie O'Connell and I discuss many of the nuances of these equipment decisions in episodes of our award-winning (not really) podcast, Let's Start a Law Firm. We also discuss some of the software that we use with this equipment. 

If you like this post, please share it with other lawyers. If you really like it, know that I get a small kickback on purchases you make on Amazon by following the links in the post. One of these days, those kickbacks will be large enough for me to take Annie out to dinner. 

Computer

Use what works for you. For me, the portability and continued speed of my mid-2011 Macbook Air is all I need. As a nerd, I would love an excuse to upgrade to the most recent iteration of the Air, but my current computer is, alas, perfect. 

Computer Backup

You must back up your data. You must have at least one on-site backup and one off-site backup of your data at all times. For Mac users, a Time Capsule is an easy on-site backup solution. For everyone, BackBlaze is a great, affordable solution to back up your data in the cloud. 

One compelling option for file-sharing and off-site backup is File Transporter. Like your own, private Dropbox. 

Desk

Again, this is one of those areas that is too personal to make a definitive recommendation. I have the luxury of renting an office that came with a desk I use for client meetings and enough room in the corner for my standing desk from Geek Desk. (Obviously, a standing desk is not strictly necessary to equip a law office.)

Regardless of what kind of desk and chair (if applicable) you use, make sure you're set up to do your work in ergonomically correct positions. Be kind to yourself. 

Keyboard

Speaking of ergonomics, I just recently purchased my first ergonomic keyboard: the Microsoft Sculpt. It is great and, after minor tweaks to the key commands, works well with my Mac. 

Monitor

Another "not strictly necessary" expense is the totally-worth-it expense of an external monitor. I have used both the Apple 27" external monitor and a much-more-affordable Dell 27" monitor. I can definitely notice a difference between the two and can get more application windows on my Apple monitor, but whether it's worth 3x the price is a personal decision.  

Printer

Here, you need to decide whether you need to print color. Personally, I do not. I have been solo for 18 months now and have not yet needed to print in color once. And, I think there are fewer things more annoying than when I accidentally print something in color when I just needed a grayscale version of it.

This is why I had my logo designed by Two State Champs to be black-and-white to avoid needing to print color (and avoid the expense and hassle of having to have letterhead and envelopes printed by an outside print shop). I use the Brother HL-5470DW

As frustrating as accidentally printing something in color is, I find accidentally printing a brief onto twenty envelopes (or, conversely, printing an envelope onto 8.5" x 11" paper) even more frustrating. I know: it is easy to pick which tray you want to print something from. You are smart and I'm not. Despite my 7 years of higher education, I make this mistake all the time. This is why I do not print envelopes at all. There is literally never anything but letter-sized paper in my printer so that I can't mistakenly print a 20-page case onto 20 envelopes.

To print envelopes, I use the Dymo LabelWriter 450 Twin Turbo. I actually own two. At work, I use the two label spools to print envelope labels and, very occasionally, file folder labels. At home, he prints envelope labels and stamps. You haven't lived until you've owned a label printer.

Phone 

I use my iPhone as my office phone. To avoid giving my cell phone number to everyone (though I'm not sure it really matters), I use a Google Voice number as my primary business phone. I just have all calls to my Google Voice number ring directly to my cell phone. Google Voice gives you the flexibility to decide how to route calls to the number based on time of day, so if you do have an office phone or a receptionist or intake specialist, you can have the Google number ring one phone during business hours and a separate number after hours. 

I'm probably going to get brain cancer from the radiation at some point, but until then, I'll keep itemizing my business use of my iPhone and deducting that portion as a reasonable business expense. (That's not tax advice: it's just what I do.)

Postage Solutions

You're going to have to mail stuff. If your office doesn't provide a postage meter, you'll need one. Pitney Bowes does a good job with that, but I prefer (and use) the Dymo Stamps software at my home office. You'll need a scale to weigh your postage and then you can just print postage on your Dymo Twin Turbo.

Fax 

I don't use a fax machine. I use Hello Fax. A "Let's Start a Law Firm" listener recently pointed out that fax machines actually do have their benefits. They are more secure than an email with attachments because they are a point-to-point communication rather than a message that gets bounced around multiple servers. If you're going to get a fax machine, avoid an all-in-one printer-scanner-fax-coffee-maker-copier. Get the right tool for the right job. Not a compromised machine. 

Copier

Before I moved into my current office space, which I rent from another law firm that leases a big-ass copier, I didn't have a copier. In my opinion, you don't need one. Get a good scanner (see below), and if you need copies, print the scan. 

Scanner

Repeat after me: "I will only use Fujitsu Scansnap products." Do not buy any other scanner. Get the Fujitsu Scansnap iX500. Spend the dough. Thank me later. 

E-Legal Supply

There are some law-specific office supplies that are difficult-to-impossible to find locally or on Amazon. I buy, for example, all of my number and letter tab inserts for exhibits to briefs at E-Legal Supply. (For a list of the envelopes, paper, pens, notebooks, and other office-supply minutiae, you can check out the notes for Episode 3 of Let's Start a Law Firm.) 

Stapler

Confession: Sometimes I do work just so that I have an excuse to use my Prodigy PaperPro stapler. I recently purchased the big boy—the Prodigy PaperPro 1300 Stackmaster—for communal use at the office copier and I am now a demigod at my office. I am Prometheus, stealer of fire. (Aside: "Stackmaster" must be one of the greatest marketing terms of all time.

File Cabinets 

Since I purchased a Fujitsu Scansnap, I no longer need file cabinets. I don't use them, but if I did, I'd only buy Hon-brand file cabinets. 

Monoprice

Here's a #protip: if you need a cable for you TV, iPhone, DVD player, projector, monitor, internet, receiver, fill-in-the-blank, buy it from Monoprice.com. You are getting scammed basically everywhere else, especially at Best Buy. Sorry to be the bearer of that bad news. Don't feel too bad, though. I once purchased really crappy speakers for far too much money from some dudes in a white van. 

Amazon Prime

How are you going to get all this great stuff to your office? With the exception of Geek Desk, Monoprice, and E-Legal Supply: Amazon Prime.

Conclusion

That's pretty much it. The takeaway, I hope, is that it has never been easier or less expensive for a small practitioner to set up a mobile-capable, relatively paperless law office while still being able to produce a very professional finished product for clients and courts. 

Again, if this list has been useful, don't be shy about sharing it with others. Help them out. We nerds tend to think that everyone knows that Fujitsu Scansnaps are the only kind of scanners people should be using, but my IRL experience with non-nerds has proven to me that this is not the case.

Yet.

Get the tools and use them to hammer out justice for your clients and the world. 

For Mac-Using Attorneys, "Date Time Calc 2" is a Useful App

We've all been there: you get a scheduling order from the Court and it contains approximately 854 deadlines, each one different and each one scheduled based on a number of days from either a) the date of the order itself or b) the date of the trial the Court has scheduled.

I use "Date Time Calc 2" to quickly perform date math for my cases. Actually, I use Date Time Calc, version 1, but when I went to write this post, I learned that the developer had just released a new version of the application. So, I guess it's more accurate to say, "I will be using Date Time Calc 2 to perform date math.

Never ballpark or count days on a calendar LIKE AN ANIMAL again. Let this app take the guesswork out of legal deadlines. 

Never ballpark or count days on a calendar LIKE AN ANIMAL again. Let this app take the guesswork out of legal deadlines. 

This is useful not just for quickly crunching court deadlines, but also in writing letters to other attorneys: "It has been __ days since I last sent you a settlement offer, so I thought I would write again to see if your client had had enough time to consider the offer." "The discovery is now __ days overdue."

I'm not going to belabor this post with a long explanation of how the app works. It's obvious how the application works: you click the date on one calendar, give it a number of days to count forwards from or back from, and it tells you on the other calendar what the second date is. It does one thing well—date math—which is all I need it to do. 

(For cost-conscious attorneys, the original Date Time Calc app is $2.99 instead of $4.99 for the newer 2.0 version. It is still available for purchase. As mentioned above, I am using the original, but plan on updating for two reasons: 1) the new version will get updates and bug fixes more often and 2) I don't mind spending money (especially when it's just a few bucks) supporting developers that make applications that help me get my work done quicker and more gracefully.)

Kentucky Among the Worst States in which to Owe Someone Money

Photo credit to dreamsjung. Click photo to view his Flickr page. 

Photo credit to dreamsjung. Click photo to view his Flickr page. 

Last fall, the National Consumer Law Center released a report, "No Fresh Start: How States Let Debt Collectors to Push Families into Poverty" in which it surveyed the exemption laws in each state. Exemption laws are laws that describe the limits of what a creditor can take from a debtor in order to collect on a judgment.

How much of a worker's paycheck can a creditor garnish? Can it foreclose on a debtor's home? Can it seize the debtor's car? What about household goods? Can a creditor take those to collect a debt?

These questions are largely answered by state, not federal, law. And, if you're a debtor in Kentucky, the answers are not good. The NCLC gave grades to all fifty states based on the protections the state has in place to ensure that a creditor's collection efforts cannot push a hard-working family into destitution.  

Kentucky is one of four states to receive an "F". (Mississippi, Michigan, and Delaware were the other three.)

The NCLC graded the states on the following criteria: 

  • Preventing debt collectors from seizing so much of the debtor’s wages that the debtor is pushed below a living wage;
  • Allowing the debtor to keep a used car of at least average value; 
  • Preserving the family’s home—at least a median-value home;
  • Preventing seizure and sale of the debtor’s necessary household goods; and
  • Preserving at least $1200 in a bank account so that the debtor has minimal funds to pay such essential costs as rent, utilities, and commuting expenses.

Kentucky failed all of these tests. 

  • Kentucky workers can keep only 75% of their paychecks (or 30 times the federal minimum wage). Some states prevent garnishment of wages altogether. Others set the limit of what can be garnished at a much lower percent than 25% of a worker's check. 
  • Kentucky gets a "D" for protecting a debtor's car. Kentucky law protects cars up to $2,500 in value. Any more than that and a creditor can seize the car to collect on a judgment. Other states protect cars worth up to $20,000 (Kansas) while others set the limit much higher than the unreasonable $2,500 Kentucky law provides (many states protect cars worth up to $7,500 or $10,000). 
  • Kentucky homeowners who owe a creditor money have essentially no protection. Kentucky law protects the value of a home up to $5,000. NCLC rightfully gives this law an "F". Seven states protect homes from collection efforts regardless of value, while another 5 states protect homes up to the median value of a home ($211,312). 
  • Kentucky law protects $3,000 worth of a debtor's household goods. This earns us another "F". Eight states protect all necessary household goods and another nine protect at least $10,000 of household goods.
  • Finally, Kentucky law provides no protection from seizure of funds in a debtor's bank account. Other states set a limit of $1,200: below that amount, creditor's cannot go. Another "F" for Kentucky. 

The NCLC has drafted a Model Family Financial Protection Act that will protect the basic dignity and financial integrity of Kentucky's families, even those struggling to repay debts. I encourage my politically-minded friends and my friends that are legislators to take a close look at the NCLC's report and recommended legislation and work to do a better job protecting our families from debt collection efforts that push them into poverty and bankruptcy. 

At Ben Carter Law, I defend people from baseless collection efforts, prosecute debt collection abuses, and help people file for bankruptcy to get a clean financial slate. But, I wish Kentucky's laws did more automatically to help families protect the basic necessities of life from collection efforts and trust that the day is coming that the legislature will change the laws to benefit Kentucky's families, not creditors.  

"As a lawyer, you are at the very center of that possible change."

I've been meaning for a while to write about lawyering as the closest distance between words and change. Then, on a recent episode of Let's Start a Law Firm, I accidentally spoke what I had been intending to write. Being a lawyer is awesome and if you're one who happens to love words, it's even awesomer. 

This two minute clip pretty much says it all. 

To be a little (more) self-involved, here are my favorite moments:

"Bank accounts get smaller and they get bigger based on the words that we put on pages."

"I was an English major because I think writing is important and that it can change the world. As a lawyer, you are at the very center of that possible change."  

I feel very grateful to all of the teachers and friends in my life that helped me get okay at writing and at least appreciate that the serial comma matters. 

If you're a lawyer, you owe it to yourself and your clients to become and remain curious about words and writing. They are, often, all we've got and, miraculously, all we need to change the world.