Winter 2004
Fisher's Law Office

Welcome to the NEWSLETTER of Fisher’s Law Office, providing you with legal information you can use in your everyday life. If you have questions about what you read in this newsletter, please call us today.

1. Beginning This Year, Cancelled Checks Are A Thing Of The Past

Major changes are taking place in the way checks are processed in the United States. As of October 28, 2004, checks are no longer transported to the issuing bank. Instead, an electronic image of your check will be processed. Under this new federal law, the image of the front and back of the check (referred to as a “substitute check”) has the same legal force and effect as an original cancelled check. This will provide for quicker processing of checks and quicker detection of fraud in the U.S. financial system.

2. Do You Have A Defined Benefit Pension Plan?

If so, you should check on the financial health of your employer. As thousands of airline employees have discovered, when their employer goes bankrupt, their pension is in jeopardy. One example of this is U.S. Airways which recently used the bankruptcy code to re-write its contractual requirement to make employee pension contributions.

The United States federal government sponsors an organization called the Pension Benefit Guarantee Corporation (PBGC) that will pay some pension benefits to U.S. Air pilots. However, the new monthly pension benefit is often much less than the benefit the employee planned on. For example, an airline pilot who expected a pension of $100,000.00 per year could receive as little as $20,000.00 to $40,000.00 from the PBGC.

Moral? Never trust your company to pay your pension. Do everything you can to protect yourself by saving for retirement in private savings accounts, IRAs and 401(K) plans. If you’re working for a company that’s about to declare bankruptcy, consider early retirement and other methods to get your pension benefits now before your company goes bankrupt and your pension is lost or reduced.

3. Credit Card Alert !!

Fisher’s Law Office has noticed an alarming trend in which credit card companies are selling their credit card accounts receivable to financial speculators. The speculators sue the debtor for the amount of the debt plus attorney’s fees and interest even though the speculator only paid a few cents on the dollar for the credit card obligation.

What can a consumer do? Go to a competent lawyer immediately if you are sued for an old credit card obligation. There are many defenses to such lawsuits such as the following:

  • Credit card companies are required to give you a written notice of their assignment of your debt. If notice isn’t given, the financial speculator may not be able to collect the debt. (see Florida Statutes, Section 559.717)
  • The speculator may not have a legible copy of the assignment, the contract or the credit appli-cation. If so, it might not be able to obtain a judgment against you.
  • The statute of limitations may have run on the debt. Under Florida’s statute of limitations law, the creditor must file suit within five years to enforce a contract (Florida Statutes, Section 95.11).
  • The creditor may be suing the wrong person! Carefully read any documents attached to a lawsuit to make sure that you are the same person who incurred the debt in the first place.
  • You are not responsible to the financial speculator for the debts of your deceased spouse. Under an ancient English legal concept called the statute of frauds, you’re not responsible for the debts of another unless you sign a writing promising to pay the debt of another. (In 1828, Florida adopted the Statute of Frauds - see Florida Statutes, Section 725.01).
  • Lastly, don’t forget that lawyers who work for creditors are considered to be “debt collectors” under the Fair Debt Collection Practices Act. If they fail to comply with this law, you may have a claim for violations of the law.

4. The New Hipaa Law And You! (why It’s So Hard To Get A Copy Of Your Medical Records)

Under a misunderstood federal law called the Health Insurance Portability and Accounting Act (HIPAA), any person who maintains or transmits health information must assure that the information is confidential (42 U.S.C. §1320d-2).

  • If a person knowingly obtains or discloses individual identifiable health information to another, that person is subject to a penalty of up to $50,000.00 and a year in jail. (42 U.S.C. §1320d-6)
  • If a person sells individually identifiable health care information for profit, the fine is up to $250,000.00 plus up to ten years in federal prison! (42 U.S.C. § 1320d-6)

Although this privacy law was well intended, the practical effect is to scare doctors and prevent patients and their loved one from getting access to health care records.

For example, our client had trouble getting access to medical records for his deceased mother to make an accidental death claim with an insurance company. Until Congress changes this draconian law, people will continue to be thwarted in getting access to their medical history and records for themselves and their loved ones.

5. Mortgage Fraud Warning

Identify theft has now taken a sinister turn. Criminals are posing as homeowners and taking out fraudulent loans. Unfortunately, the real homeowner has no idea that a mortgage has been taken out on his property until he is ready to sell his property or refinance it!

Do not underestimate the scope of this problem. The United States Federal Bureau of Investigation (FBI) is currently investigating hundreds of mortgage fraud cases. Unfortunately, the FBI is busy with “homeland security” concerns and has reduced its normal police functions. For example, in one recent mortgage fraud case in Orlando, a $2,500,000.00 loan was taken out on a victim’s property by an imposter but the FBI declined to even open an investigation!

What can you do to protect yourself from this type of identity theft?

(a) Consider putting a total freeze on your credit with the three major credit bureaus (TRW, Equifax and Experian) so no bank or loan company can obtain your credit report and lend money to someone pretending to be you.

(b) Periodically check your own name in computer databases and at the courthouse to verify that you haven’t taken out any mortgages that you are unaware of.

6. Here Are Some Recent Cases That Fisher’s Law Office Have Handled:

(a) Our client is freed from a boat mortgage. Our client was a grieving widow whose husband had passed away. At the time of his death, her husband owned a large boat worth almost $100,000.00. A notice of the probate of the estate was sent to the creditor holding the loan on the boat but the creditor failed to make a claim against the estate. Eventually, the boat was repossessed and sold by the bank but a large balance on the boat mortgage remained after the boat was sold. Months after the deadline had run to file a claim in the estate, the boat mortgage company approached the estate asking for money. The estate did not have to pay the claim. The widow’s children received a modest inheritance and the estate was closed.

(b) Florida’s homestead law protects our client’s house. A woman asked us to assist in probating the estate of her mother. The only asset of the estate was the mother’s house. The deceased mother had an unpaid credit card at her time of death. Because of the Constitution and the proper filing of a “petition to determine” homestead, our client received the home of her mother free of the credit card bill.

Under Florida’s homestead law (Article X, Section 4 of the Florida Constitution), a Floridian’s home is exempt from forced sale. Remember: If a loved one passes away owning a home, the home can probably pass to the children named in the Will without having to repay general creditors.

(c) Fisher’s Law Office stops an illegal wage garnishment . Our client is a young mother supporting two children. A loan company had a judgment against her for an unpaid debt. The loan company began garnishing her wages.

Under Florida Statutes, Chapter 222, our client is exempt from seizure of her wages by a creditor because she is considered a “head of a household”.

Fisher’s Law Office immediately filed a Motion to Set Aside Garnishment under Florida Statutes, Section 77.041. The court quickly put a stop to the garnishment. As a result, our client was able to keep her wages and support her family.

7. Medicaid Primer

  • Many clients ask Fisher’s Law Office to help with Medicaid issues. Medicaid is a health program that provides health care for the poor. Here are some Medicaid rules that everyone should know:
  • Anyone who uses Medicaid after age 55 carries a lifetime debt that follows them after death.
  • To apply for Medicaid, you should have less than $2,000.00 worth of assets. Also, your spouse has a limit on how much money she can have in order for you to apply for Medicaid.
  • Once you die, your estate must give notice to the Centers for Medicare and Medicaid in Tallahassee, Florida, so that Medicaid can file a claim against your estate.
  • If your estate objects to a Medicaid claim and Medicaid lets 30 days go by without filing a lawsuit against the estate, the estate does not have to pay Medicaid.
  • The only way for the Medicaid program to prove the amount of its lifetime Medicare claim against your estate is for you to waive your “HIPAA privacy rights” contained in the Health Insurance Portability and Accountability Act (HIPAA) passed in 1996 by the U.S. Congress. If the estate refuses to cooperate in waiving privacy rights, the Medicaid program might not be able to prove the amount of the claim.
  • If you give away assets, the Medicaid program will “look back” between three and five years and disqualify you from Medicaid for a period of time depending on how much money you gave away.