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Saturday, March 29, 2014

How To Respond to a Legal Threat



In a prior post I advised readers on how to craft a legal threat letter;  http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html.  This post is the opposite of that: how to respond to a threat of legal action (whether in writing or verbal).  There are a number of possibilities, so let’s take them one by one.

1. Keep Calm. Yes, the threat of legal action is scary, but your response should be the result of clear thinking, and you can’t do that if you’re in panic mode.  You need time to consider your options, so if the threat is oral (over the phone or in person) work to get some breathing room.  First make sure you understand the nature of the threat: who is making it (get names and contact information), what the circumstances are giving rise to the claim, what legal theory is being threatened, and what are the time constraints for your response?  Don’t spout off.  A calm, mannered answer, delaying your formal response, will work better than a rant.  If the person says you must respond “NOW!” reply that you will think about the issue, talk to your lawyer (don’t admit you don’t have one), and get back to him/her.  Then walk away or disconnect the phone caller.

2. Debt Collection.  If the legal claim is that you owe a debt, first of all ask yourself if it’s true that the debt is owed and in the amount stated.  If not, dispute that.  If so, can you figure a way to pay it?  In any event, you can stop debt collection harassment by invoking the protection of a federal statute: The Fair Debt Collection Practices Act (15 United States Code section 1601 and the sections that follow), the text of which can be found at http://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text, and the Federal Trade Commission’s explanation of the Act is at https://www.consumer.ftc.gov/articles/0149-debt-collection.   In the statute you have the right to stop the debt collector’s future contacts by giving the debt collector a notice in writing (keep a copy) in which you demand that further contact with you cease, and the collector must then stop contacting you except for the purpose of initiating legal actions (such as filing a lawsuit).  Even without such a written notice from you, the debt collector cannot harass you (and the statute has examples of what sorts of conduct are forbidden as harassment). Violations of the Fair Debt Collection Practices Act give you a legal cause of action against the debt collector for your actual damages plus attorneys fees and punitive damages (up to $1000.00) for outrageous behavior.

 If you can’t pay the debt, tell the creditor that you don’t have any money (the legal term is that you are “judgment proof” or as the old saying goes “you can’t get blood out of turnip”).  If you have the possibility of paying some of the debt, offer to pay a lesser sum as satisfaction for the whole, mentioning that if you can’t work something out you may have no other choice but to file a bankruptcy petition.  If the creditor agrees to take a lesser sum, send him/her a payment in full check [see Related Posts below].  Without the creditor’s express agreement, a payment in full check will not work.

3. Are You Guilty?  We all justify our actions to ourselves and are very good at coming up with arguments as to why we’re right.  Once these conclusions are fixed in our minds it’s very, very difficult to rethink them.  But when the legal threat arrives it’s time for some soul-searching.  Ask yourself how some objective person, say, a judge, is going to view this matter.  Here is a sobering challenge: put yourself in the position of the other side.  What does this all look like from that point of view?  If this mess ends up in court what ugly facts will come out that’ll be very damaging to your version of the matter?

What are the equities of the situation?  What’s fair and what’s not fair?  Understanding the equities is important.  I tell my law students that if you are filing a law suit and you’ve got the rules of law on your side are while the equities are all on the other, you’re in trouble.  Courts tend to do what’s equitable, and they can adjust the law as needed to reach that result if they’ve a mind to do so.



What should you do if the other side is right?  You really do owe the debt.  You did cause the accident.  Your dog did eat their favorite child.  You certainly want to avoid a lawsuit if you possibly can because even if you win the whole experience will be a real ordeal, and if you lose life could become a nightmare.

Apologize!  An apology, sincerely given, can work wonders.  If you’re guilty, it’s time to propose a settlement.  Sit down, work things out—be the most reasonable person on the planet.  People are often surprised and impressed by a sincere apology.
If you have multiple creditors, get them together and see if you can work out a payment plan whereby each takes a “haircut” by lopping off some of the amount due (in order to get anything at all).  Such a workout is called a “composition of creditors,” and the resulting contractual agreement between all involved is enforceable as a contract.

If the other side won’t settle, consider the possibility of filing a bankruptcy petition, which automatically stops all creditor collection activity and lets the bankruptcy court straighten things out.  Threatening bankruptcy can make many creditors more compliant.  The forms should be filed in the Federal District Court Bankruptcy Division nearest you.  You’ll need a bankruptcy lawyer, and it is usually easy to find one who can figure out some sort of fee payment plan.  Ask around among people who have gone bankrupt if they had a good experience with their attorney.  The court itself might be a source of information about which lawyers are experts at handling bankruptcy petitions, and the bar association will have such a list.



4. Violations of other laws. I’ve written elsewhere [see Related Posts below] about fraud, federal or state consumer protection statutes that might be relevant and help you find the relevant defense.  Type “consumer protection” along with your state’s name into Google and see what comes up.

5. Get a lawyer. You wouldn’t perform your own medical operation if you were injured, you’d pay a doctor.  If you have legal trouble, it’s time to bite the bullet and pay a good lawyer.  How do you find one?  Friends might have a recommendation, but make sure you get an expert in the particular field of law at issue.  Contact the local bar association, which typically has a list of lawyers in various fields who are willing to take on new clients.  The first thing to ask the lawyer is what he/she will charge.  Without know this, it’s impossible to decide whether to proceed.  Don’t be shy in asking about the fee upfront.  If you can’t afford a lawyer, call the legal aid society.  Use Google to find a legal aid office near you, and then see if your plight will attract their attention.  Or perhaps you have a lawyer friend who could help you pro bono.



6.  Dig In Your Heels.  If you’re sure that you are in the right (don’t make a mistake as to this), but the other side is being unreasonable in pursuing a groundless claim, tell them you have no more to say.  See if they are willing to go to court to press an unwinnable case.  Many people, faced with a flat refusal, will fume and curse you but ultimately give up.  If they don’t, well then a court will have to figure out who’s right and who’s wrong.  But doing nothing can be a powerful tactic if the other side doesn’t have the will to proceed.
7.  Conclusion.  Legal troubles can be hell on earth, and I don’t envy you your situation.  Good luck with resolving your problem.  Please do not write me for specific legal advice.  I’m retired and no longer practicing law at all, and it’s unethical for me to give legal advice—even free legal advice—when I’m not authorized to practice in the jurisdiction where you live.

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Related Posts:

"I Threaten To Sure Apple Over an iPad Cover," April 8, 201l;
http://douglaswhaley.blogspot.com/2011/04/i-threaten-to-sue-apple-over-ipad2.html

"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011;
http://douglaswhaley.blogspot.com/2011/04/payment-in-full-check-powerful-legal.html

"What Non-Lawyers Should Know About Warranties," October 11, 2011;
http://douglaswhaley.blogspot.com/2011/10/what-non-lawyers-should-know-about.html

"How To Write an Effective Legal Threat Letter," October 19, 2011; http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html

“How To Win Arguments and Change Someone’s Mind,” August 5, 2012;

"Mortgage Foreclosures, Missing Promissory Notes, and the Uniform Commercial Code: A New Article," February 11, 2013; http://douglaswhaley.blogspot.com/2013/02/mortgage-foreclosures-missing.html
 
"Legal Terms You Should Know," September 11, 2013;
http://douglaswhaley.blogspot.com/2013/09/legal-terms-you-should-know.html

“Clicking on 'I Agree': Sticking Your Head in the Lion's Mouth?” September 27, 2014;
http://douglaswhaley.blogspot.com/2014/09/clicking-on-i-agree-sticking-your-head.html

 “My Battle with Sony To Get a Refund on a DVD Player”;
http://douglaswhaley.blogspot.com/2015/07/my-battle-with-sony-to-get-refund-on.html

“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html.

Monday, March 17, 2014

Is It Legal To Discriminate Against Gay People?





The State of Arizona has recently endured an embarrassing episode where the legislature passed an amendment to the state’s Religious Freedom Restoration Act allowing business owners to deny service to gay and lesbian customers so long as proprietors were acting solely on their religious beliefs.  This caused such a national outcry and threats of boycotting Arizona (moving the Superbowl from there next year!!!) that even legislators who’d voted for the bill were startled by what might happen and urged Governor Jan Brewer to veto it, which she promptly did.  The dustup over this caused the withdrawal of similar bills in other states, including Ohio where I live.  Whew!

So consider this question.  If you’re a baker in a town in Arizona and your religious beliefs cause you to abhor homosexuals, and then a gay couple asks you to bake them a wedding cake and you refuse, does this obvious discrimination now expose you to a lawsuit? 

No.  It doesn’t.  Residents of Arizona (except Phoenix, which has a municipal ordinance protecting gays from discrimination in employment, housing, and public accommodations) are perfectly free to be as homophobic as they like in refusing to hire or retain gay employees, rent them rooms or sell them houses, and deal with them in public businesses like a bakery.  There is neither an Arizona statute nor federal law that gives gay people any protection at all in these matters.

What?  If that’s the case, why did the Arizona legislature feel it was necessary to pass the homophobic bill in the first place?  Apparently the legislators were frightened by lawsuits in other states (Oregon, Colorado) where bakers (and retailers in similar situations) were successfully sued by gays who were turned away at the bakery door.  And it’s true that the Arizona statute would have voided the part of the Phoenix ordinance dealing with discrimination as to public accommodation.  Both Oregon and Colorado do have state laws protecting gays from this sort of discrimination, hence the successful lawsuits there.
But, really, isn’t there some federal law being violated by discrimination against gays?  No, and so far Barack Obama has refused to issue an executive order in hiring matters to protect gay federal employees.  For years Congress has made attempts to pass the Employment Non-Discrimination Act [“ENDA”] which would add anti-gay discrimination in hiring (but not housing or public accommodations) to the Civil Rights Laws.  It has always failed to clear prior Congresses, but the current Senate did manage to vote for the bill (with admirable bi-partisan support, including Republican Senators like John McCain).  Alas, the bill stands no change of passage in the Republican-controlled House of Representative. 




Senator Ted Cruz (R. Texas) has recently introduced a bill in the Senate which would allow states to refuse to recognize marriages validly entered into by gay couples in other states (it is co-sponsored by Senator Mike Lee (R. Utah)).  The bill has no chance of even being voted on in the Democratically-controlled Senate, and, in any event, would be vetoed by President Obama.  But Cruz says that his “heart weeps” over the progress that gays are making, and his anti-gay activities make him the darling of the Tea Party just as the 2016 Presidential campaign begins to awaken.
Twenty states and the District of Columbia have enacted laws prohibiting discrimination against gay people (some of which also protect transgendered individuals), and many municipalities have ordinances doing the same.  Below is a chart on point that the ACBL has created; for a clickable-version see //www.aclu.org/maps/non-discrimination-laws-state-state-information-map.



Finally let me note that, as I’ve said before, I’m very sure that gay marriage itself will be completely legal in all states by 2016 when the United States Supreme Court takes the happy step of using the 14th Amendment to grant equal protection to gays who love each other and decide to claim the legal status that marriage bestows in so many ways.

Related Posts:
Boycott ‘Ender’s Game’?  Orson Scott Card and Profiting From Homophobia,” September 20, 2013
“Disowning Your Gay Children,” October 9, 2013
"Falling in Love, Turning 70, and Getting Married," October 21, 2013

“Republican Politicians: Reluctant Homophobes?” November 26, 2013
“Gays Will Be Able To Marry in All States By July of 2016 (and Maybe 2015): A Prediction,” February 14, 2014

"Gay Marriage, The 6th Circuit, Jeffrey Sutton, and the Supreme Court," November 13, 2014
"Alan Turing: Torturing a Gay Genius to Death," November 26, 2014;

“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015; http://douglaswhaley.blogspot.com/2015/03/a-gay-hoosier-lawyer-looks-at-indianas.html
 "A Guide to the Best of My Blog," April 29, 2013