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When a debt collector calls, how should you answer?

November 17th, 2015

The phone call from a debt collector never comes at a good time—but the best response is to confront the state of these affairs head-on. You may want to hide or ignore the situation and hope it goes away–but that can make things worse. Depending on your personal situation, there may be different steps to take.

First, be sure the debt collector and the debt are legitimate:

Find out:

  • Who you’re talking to (get the person’s name)
  • The name of the debt collection company
  • The company’s address and phone number
  • The name of the creditor

Ask the debt collector for:

  • The amount owed
  • The name of the creditor
  • How you can dispute the debt or verify the debt is yours

If the debt collector doesn’t tell you this information the first time it contacts you, ask for the information in writing. As with other business matters, get everything in writing before you proceed.

Second, identify the debt.

If you recognize the debt:  You can contact the debt collector and work out a repayment plan that makes sense for you

If the debt is several years old:  Before making a payment or agreeing to a payment plan for a debt that is old, find out what your state’s statute of limitations is for filing a lawsuit to collect the debt. You may wish to consult an attorney or the applicable law in your state.

If you’re not sure the debt is yours:  Write and ask for formal written verification of the debt, including: 1) the name and address of the original creditor (if different than the current creditor), 2) how much you owe, 3) proof the debt is yours

If the debt is not yours:  Write the debt collector to tell it the debt is not yours and that you do not want to be contacted about it again.

Third, keep your letters.

Keep the letters you receive and make copies of the letters you send in case you need to dispute the issue later.

Above all, remember: Harassment is illegal

The Fair Debt Collection Practice Act says debt collectors can’t harass, oppress, or abuse you or anyone else they contact.

For example, debt collectors can’t:

  • Make repeated phone calls that are intended to annoy, abuse, or harass you or any person answering the phone
  • Use obscene or profane language
  • Make threats of violence or harm
  • Publish lists of people who refuse to pay their debts (this does not include reporting information to a credit reporting company)
  • Call you without telling you who they are

If you believe a debt collector is harassing you, you can submit a complaint with the Consumer Financial Protection Bureau. Remember, you don’t need to face a debt collector alone. If you have any questions about the above material, or wish to speak to an attorney, please contact HoganWillig at (716)636-7600. HoganWillig is located at 2410 North Forest Road in Amherst, New York 14068, with additional offices in Buffalo, Lancaster, and Lockport.

ABLE Act Accounts for Disabled Individuals

Author: Linda Grear

November 13th, 2015

On December 19, 2014, the Achieving a Better Life Experience (ABLE) Act of 2013 was passed. The ABLE Act amends Section 529 of the Internal Revenue Service Code to create tax-free savings accounts for individuals with disabilities in order to cover qualified disability expenses such as education, housing and transportation.  New York State also recognizes ABLE Act 529A Accounts.

Eligible individuals and families will be allowed to establish an ABLE Act 529A account that will not affect an individual’s eligibility for SSI, Medicaid, and other public benefits.  If an individual has significant disabilities, with onset of disability before 26 years of age, and is already receiving benefits under SSI and/or SSDI, the individual is automatically eligible to establish an ABLE Act 529A account.

An individual beneficiary may have only one (1) 529A account, and it must be established in the state where the beneficiary lives.

Each year, up to $14,000 may be contributed to the 529A account (with future adjustments for inflation).  For individuals with disabilities who are recipients of SSI and Medicaid, the first $100,000 in the 529A account will be exempted from the SSI $2,000 individual resource limit. If an ABLE 529A account exceeds $100,000, the beneficiary will be suspended from eligibility for SSI benefits and no longer receive that monthly income; however, the beneficiary will continue to be eligible for Medicaid benefits.

A qualified disability expense is an expense related to the designated beneficiary as a result of living a life with a disability. These include education, housing, transportation, employment training and support, assistive technology, personal support services, health care expenses, financial management and administrative services.

An ABLE 529A account can provide more choice and control for the beneficiary and family. The cost of establishing a 529A account will be less than either a Special Needs Trust or Pooled Income Trust. For many families, the ABLE account will be a significant and viable option in addition to a Trust program.

If you have any questions about the above material, or wish to speak to attorney, please contact HoganWillig, Attorneys at Law at (716)636-7600 or visit www.hoganwillig.com. HoganWillig’s main office is located at 2410 North Forest Road in Amherst, New York with additional offices in Lockport, Lancaster and Buffalo.

Skim This Before You Fall for a TV Scam

October 27th, 2015

It’s easy to be fascinated by the tempting advertising of infomercials. Taglines such as ‘Miracle Cure!’ and ‘Only $19.95!’ may make you feel that it would be foolish not to buy. While there are many reputable products out there, there are equally as many health scams that cancel out the positives of the attractive media presentation. Spotting a scam called ‘health fraud’ can be done just be paying attention to the words used in the advertisement.

The Food and Drug Administration (FDA) defines ‘health fraud’ as: the deceptive promotion, advertising, distribution, or sale of a product represented as being effective to prevent, diagnose, treat, cure, or lessen an illness or condition, or provide another beneficial effect on health, but that has not been scientifically proven safe and effective for such purposes.

If you do succumb to a health fraud, you’re not alone. Lots of people are conned into buying health products that sound great, but are really bogus. Some products may cause serious problems like pain, suffering, or even death. Additionally, you may also lose your money on these swindles.

Look out for products that read:

  • Myth: “It’s Natural
    • Reality: Just because a product is labeled ‘natural’ does not mean it is safe. Check to see if the product has been approved by the FDA.
  • Myth: “It’s So Easy!”
    • Reality: Don’t believe promises like ‘lose weight while you sleep.’ If it sounds too effortless, there’s a very good chance it’s a scam.
  • Myth: “Miracle Cure!”
    • Reality: Generally, one pill will NOT alleviate many different illnesses like cancer, diabetes, AIDS, or arthritis.
  • Myth: “It Worked For Me
    • Reality: Personal success stories often aren’t really personal. Spoiler alert: personal success stories by ‘real people’ or doctors are easy to fabricate.
  • Myth: “Pay Now and Save
    • Reality: Don’t feel pressured to buy. Take time to get the facts about the product first. Ask questions. Be informed.
  • Myth: “They Don’t Want You To Know
    • Reality: Always feel free to ask your doctor, nurse, or pharmacist what is best for your health. If it concerns your health and well-being, you deserve to get multiple opinions—do your research.

Protect yourself and your family

  • Talk to a doctor, nurse, or pharmacist or call the Food and Drug Administration (FDA) at 1-888-463-6332 before you use any health product advertised in an infomercial.
  • Get the facts about health fraud at: fda.gov/healthfraud
  • Report a problem with a product to the Food and Drug Administration (FDA) at fda.gov/medwatch or  1-800-332-1088
  • Report false advertising to the Federal Trade Commission (FTC) at ftc.gov or at 1-877-382-4357

Speak out if you’ve been the victim of a health scam. If you have any questions about the above material, or wish to speak to an attorney, please contact HoganWillig at (716)636-7600. HoganWillig is located at 2410 North Forest Road in Amherst, New York 14068, with additional offices conveniently located in Buffalo, Lancaster, and Lockport.

The Rights that accompany Marriage Equality  

October 24th, 2015

On June 26, 2015 the Supreme Court of the United States (SCOTUS) legalized same-sex marriage nationwide. In New York, same-sex couples were granted the freedom to marry in 2011. It’s important to know what rights were granted under the Marriage Equality Act—especially now that marriage equality is the law of the land.

Q: What are the benefits received from same-sex marriage?

A: State-based marriage rights in New York include:

  1. State tax benefits: Married same-sex couples will now be able to file joint state tax returns, take spousal deductions on state income taxes, exclude employer contributions for spousal health insurance from taxable income for state taxes, exempt property inherited from spouses from state estate tax, and receive tax benefits when transferring interests in property
  2. Insurance benefits: State and municipal employees are entitled to benefits for their same-sex spouses. However, many private employees offer ‘self-funded’ health insurance that is not affected by the Marriage Equality Act. It’s best to consult your insurance plan’s definition of spousal benefit coverage.
  3. Health care and family leave: Spouses enjoy special rights to make decisions related to emergency medical care for each other and to visit a spouse who is ill. Working spouses will also be entitled to family medical leave and bereavement leave.
  4. Inheritance, property ownership and transfer rights: Beyond inheritance protections in probate court proceedings, many laws make it easier for spouses to transfer or jointly own property.
  5. Parental rights: Both spouses will be listed as parents where a child is born to two married women. This does not apply to children born to a couple before they are married. Married men having a child through a surrogate will still need to follow a more complicated set of procedures which they should consult with an attorney about. Due to inadequate protections in other states or countries that do not recognize valid marriages of same-sex couples, it is highly advised by organizations such New York Civil Liberties Union (NYCLU) for couples to obtain second-parent adoptions by the non-biological parent, even if both spouses are listed as parents on a birth certificate. A court-ordered adoption ensures legal respect for both spouses’ parental status by other jurisdictions that may not recognize marriages of same-sex couples. Consult an attorney for further advice.
  6. Workers’ compensation and wrongful death claims: Spouses may receive workers’ compensation benefits if a spouse dies in the workplace, and they may bring a wrongful death lawsuit and related civil claims that are dependent on marital status.
  7. Cemetery plots: Same-sex spouses have the same rights as different-sex spouses to possession, care, control and succession to ownership of, and right of interment in, a public cemetery plot.
  8. Spousal privilege: In legal proceedings, discussions between spouses are protected from disclosure in court by asserting spousal privilege.
  9. Family law: Spouses may utilize state and local judicial forums in proceedings relating to separation, divorce, orders of protection and the care of any children of the couple.

Federal marriage benefits:

  1. Taxes: Spouses are able to file joint federal tax returns, take advantage of the marital exemption to gift taxes, and take the marital deduction on a taxable estate.
  2. Immigration: A spouse may sponsor his or her spouse for immigration purposes.
  3. Bankruptcy: Spouses have the option of filing a joint petition for bankruptcy.
  4. Social Security Benefits: Spouses who qualify have access to Social Security spousal benefits.
  5. Military Benefits: A spouse of a service member is entitled to a number of benefits, including insurance, housing allowance, visas and access to legal assistance.

Our Matrimonial department can assist you with any questions or concerns you may have. If you wish to speak to an attorney, please contact HoganWillig at (716)636-7600. HoganWillig is located at 2410 North Forest Road in Amherst, New York 14068, with additional offices conveniently located in Buffalo, Lancaster, and Lockport.


Getting to Know Your Credit Score

October 19th, 2015

Banks, credit card companies and other businesses use credit scores to estimate how likely you are to pay back money you borrow. A higher score makes it easier to qualify for a loan or lower interest rates. Many scores range from 300-850 but each company may use different ranges.

Did you know you can have many credit scores?

You can have more than one score, because:

  • Lenders use separate scores for separate products
  • There are many unique credit scoring formulas
  • Information can come from different credit reporting sources

For instance, your credit card score could be different from your home loan score and the scores you purchase online could be different from both of those. For some people, these differences aren’t that big. However, since lenders use various scores, you might qualify for lower rates with one lender and not another. Shopping around can reward you.

Where do credit scores come from?

Your credit scores are generally based on information in your credit reports. This information is reported by your creditors to credit reporting companies. The three biggest are Equifax, Experian, and TransUnion.

Several variables affect your credit score:

  • How many credit accounts you have
  • How long you’ve had those accounts
  • How close you are to your credit limit
  • How much credit you have left
  • How often your payments have been late
  • Other factors

How can I raise my score?

  • Pay your bills on time, every time
    • Set up automatic payments, or set up electronic reminders—this will take the guesswork out of remembering deadlines.
  • Don’t get close to your credit limit
    • Credit scoring models look at how close you are to being ‘maxed out,’ so try to keep your balances low in proportion to your overall credit limit. Experts advise keeping your use of credit at no more than 30 percent of your total credit limit.
  • A long credit history will help your score.
    • Start to develop your credit score early on as these scores are based on experience over time. Your score will improve the longer you have credit, open various types of accounts, and settle up what you owe on time.
  • Be careful when closing accounts.
    • If you close some credit card accounts and put most or all of your credit card balances onto one card, be cautious. It may hurt your credit score if you are using a high percentage of your total credit limit. Frequently opening accounts and transferring balances can hurt your score too.
  • Only apply for the credit you need.
    • Credit scores look at your recent credit activity as an indicator of your need for credit. If you apply for a lot of credit over a short period of time, it may appear that your economic circumstances have changed for the worse and you will be doing yourself a disservice.

Credit reports and credit scores are equally important

Mistakes in your credit reports could hurt your credit history and credit score, so check them regularly. You can get one free credit report from each of the big three credit reporting companies every 12 months. Go to www.annualcreditreport.com  or call (877) 322-8228.

What do I look for when I receive my report?

Look for:

  • Mistakes in your name, phone number, or address
  • Loans, credit cards, or other accounts that are not yours
  • Reports saying you paid late when you paid on time
  • Accounts you closed that are listed as open
  • The same item showing up more than once (like an unpaid debt)

How do I fix a mistake in my credit report?

If you find something wrong in your credit report, contact both the credit reporting company and the creditor that provided the information. Explain what you think is wrong and why. Be sure to include copies of documents that support your dispute.

Have concerns about managing your credit? If you have any questions about the above material, or wish to speak to an attorney, please contact HoganWillig at (716) 636-7600. HoganWillig is located at 2410 North Forest Road in Amherst, New York 14068, with additional offices conveniently located in Buffalo, Lancaster, and Lockport.

SAVED: Five Steps for Making Financial Decisions

September 17th, 2015

When making any kind of financial decision, it can be easy to get overwhelmed. You can save yourself from regret later by following the acronym SAVED:

  1. STOP for a mental break
    1. Stop and give yourself time to make a good decision. Don’t fall to pressure.
    2. Feel free to tell salespeople: “I don’t make financial decisions without first consulting my ___. I will contact you if I’m still interested.” Fill in the blank with whomever you choose—your spouse, adult child, investment professional, attorney, or accountant.
  2. ASK questions about costs and risks
    1. Ask questions about costs and risks. Remember YOU are the one in charge of making the decision and should only decide when you feel comfortable.
      1. How much does this cost now? How much will it cost over time?
      2. Are there fees, taxes, penalties, or other charges? When do those apply?
      3. How do I avoid paying for extra services or add-ons if I don’t want them?
      4. Can I cancel and get my money back? What’s the deadline for canceling?
      5. What payment options do I have? Can I adjust my payment date?
  1. VERIFY and check what you’re told
    1. Comparison shop –make sure you’re getting a reasonable deal. Be wary if something seems too good to be true.
      1. Bank accounts, credit cards, and debit cards: Visit the financial institution’s website to check requirements, interest rates, payments, transactions and fees.
      2. Loans, investments, and insurance: Get everything in writing to verify that what you were told matches what you read. Make sure the people and companies you’re working with are properly registered in your state and with federal authorities. Check with your state’s banking regulator, insurance commissioner, and securities regulator. For investments, also check with FINRA or the Securities and Exchange Commission.
      3. Other products and services: Check with your state attorney general’s office. For a list by state, visit naag.org.
  1. ESTIMATE your costs
    1. Estimate your costs. Online calculators help you compare just about any financial product or service. Start with fees and charges you pay up front. For longer-term decisions, add in ongoing fees, payments and charges.
    2. Do a cost-benefit analysis. Is this product or service worth it when you analyze costs?
  2. DECIDE whether the costs and value are worthwhile for you
    1. Only make the decision once you’ve finished your homework.

Don’t go into making financial decisions alone. If you have any questions about the above material, or wish to speak to an attorney, please contact HoganWillig at (716)636-7600. HoganWillig is located at 2410 North Forest Road in Amherst, New York 14068, with additional offices in Buffalo, Lancaster, and Lockport.

5 Strategic Clauses to Consider Including in a Business Contract

Author: Geff Gismondi

September 8th, 2015


The law provides a number of general rules that govern contracts and dictate when and where lawsuits or arbitration proceedings may be brought when they are based on a breach of contract.  However, the parties to a contract can specify certain parameters which will trump the general rules.  Here are five strategic clauses that one should consider including in a contract to control when, where, and how a claim for breach of contract may be brought:

Time on Your Side

A strategic way to limit claims or avoid them is to include contract language which shortens the statute of limitations.  Time limitations for bringing a lawsuit vary, but can be up to six years in NY for contract claims.  A section of the law allows you to shorten the time by written agreement (CPLR 201). That portion of the contract has to be in conspicuous language (bold or large) and the shortened time period has to be reasonable.  In construction contracts, which are usually subject to a six-year statute of limitations, courts have held that a shortened time period of nine months is reasonable.  In a contract involving the sale of goods, the usual four-year statute of limitations can be shortened, but not to less than one year.

Take it to the Limit

Notably, NY courts cannot extend a statute of limitations and the parties to a contract cannot waive or extend the statute of limitations for unknown future claims. However, if there is a strategic advantage, the parties can lengthen the statute of limitations, but only in a signed writing after the claim has accrued.

Location Location Location

A contract can specify not only the State but also the County in which a lawsuit or arbitration may be brought, which can be significant in terms of costs and convenience to companies doing business regionally, nationally, or internationally. There are two types of clauses that should be considered:

“The Forum”

When a contract contains a forum selection clause designating NY as the place for trial or arbitration, generally courts will uphold the parties’ agreement.

“The Venue”

It’s also wise to consider including a contract clause which stipulates a venue in the event of litigation.  Venue refers to the NY County where the lawsuit is filed, the court is located, and the depositions take place.  A further strategic tool can be employed after a lawsuit is filed. The parties can stipulate to change venue.  This can be a significant consideration because the venue determines the assigned judge and the location from where the jury pool is selected.

Smile and Waive

A final issue to consider is that the contracting parties can agree to limit or waive a claim for damages in the event one party breaches.  The courts will enforce the parties’ agreement if the contract language is clear and not subject to two reasonable interpretations.  A waiver clause cannot preclude liability for intentional acts or gross negligence because it is against public policy.

Overall, the parties to a contract have broad freedom to agree on terms that will govern significant aspects of the manner in which disputes will be resolved.


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