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4 tips to identify undue influence

October 10, 2019/0 Comments/in Uncategorized /by clooten

Imagine your father is elderly, handicapped, and requires in-home care. He develops a close relationship with his caretaker, who is much younger than he is. When your father passes away, you assume that all his assets will be left to you and your siblings. However, the caretaker comes forward with a Will signed by your dad a week before his death — and it leaves everything to her! Seems fishy, right? This is a classic case of undue influence.

What is Undue Influence?
In Oklahoma, undue influence consists of taking an unfair advantage of another’s weakness of mind or body or the use of authority to procure an unfair advantage over someone. Put another way, undue influence occurs when someone exerts pressure on an individual, causing him or her to act contrary to his or her wishes and to the benefit of the influencer.

In the example above, the “influencer” is a person outside the family; however, undue influence can occur from inside the family as well. Sometimes, a child may convince his or her parent to leave another child out of the Will or to leave that other child less of the estate. The child assisting his or her parents with their estate plan may not have any malicious motives: perhaps he or she simply thinks that their sibling would not manage the assets well. Nevertheless, such a scenario could give rise to a claim of undue influence from the child left out of the Will.

How Can I Identify Undue Influence?
In assessing a claim of undue influence, courts consider a number of factors. But for our purposes, we have narrowed them down to four main indicators you can use to determine whether undue influence might exist:

1. Look for unexpected gifts.
Courts often look at whether the testator disposed of his or her property in an unexpected way. The question is sometimes phrased like this: Did the testator leave his estate to anyone who was not the natural object of his or her bounty? For instance, if a woman was close with her three children, the fact that her Will leaves her entire estate to a caretaker looks suspicious. After all, one would expect the woman to leave most (if not all) of her estate to her children.

2. Examine the testator’s mental/physical state.
Courts often consider the age and health of the testator in analyzing undue influence claims. Frailty, deteriorating mental state, and other mental or physical factors could make a loved one susceptible to undue influence. Although undue influence is different than a claim of “lack of capacity,” the same evidence is often relevant for both claims.

3. Consider whether the testator was isolated.
Third, determine whether the testator was isolated from other family or friends. An influencer often tries to separate the testator from his or her loved ones so he or she will become dependent on the influencer. The testator may see the influencer as the only person that cares about him or her and thus believes it would be proper to leave the influencer their estate. Elderly people, disabled individuals, and individuals with mental ailments may be especially susceptible to undue influence on account of their isolation or separation from other relations.

4. Scrutinize special relationships.
Lastly, look at whether there is a “special relationship” in the testator’s life. A caretaker is simply one example. Perhaps a neighbor spends a lot of time with your father and helps him with chores and other tasks. Or perhaps one child spends much more time with parents than another. A “special relationship,” by itself, does not indicate undue influence. There must be some action on the part of the influencer to show that he or she unduly influenced the testator. Did she drive your father to his appointment with the estate planning attorney? Was she present when your father signed his Will? All these facts could indicate that the influencer utilized the “special relationship” to his or her unfair advantage.

How Can I Avoid a Claim of Undue Influence?
As mentioned above, perfectly reasonably intentions can still lead someone to challenge an estate plan on the grounds of undue influence. At various times, you may be the one bringing a claim or the one defending a claim. Therefore, we recommend a few best practices to avoid having a loved one’s (or your) estate plan challenged because of undue influence”

1. Always keep undue influence in mind.
If you are helping a loved one prepare an estate plan, keep in mind the factors explained above. Examine your actions from the perspective of a disgruntled heir and consider whether you have done anything that could be considered undue influence. Remember: successfully defending a claim of undue influence is great, but the goal is to avoid the claim in the first place. Any legal battle will result in thousands of dollars of attorney’s fees and court costs.

2. Resist involvement in a love one’s estate planning.
If a parent plans to leave everything to you, and you are your parent’s primary caretaker, resist involving yourself in their estate planning process. You might simply wish to help your parent through the legal process, but look at it from the perspective of a plaintiff’s attorney (who would argue there was undue influence): you suggested that your parents review their estate plan; you called the attorney’s office to schedule an appointment for them; you drove them to that appointment; you sat in the appointment with them; and you were present for the signing of their estate planning documents. The attorney wants to show the judge and jury that that you exerted complete control over your parent in amending his or her estate plan, and that such control amounted to undue influence. If you involve yourself in the estate planning process, the case becomes even more difficult to defend.

3. Make your wishes clear.
For your own estate plan, be sure that your attorney has a clear record of your wishes. Your estate plan may say exactly what you want — right now. But if you become incapacitated, frail, or mentally infirm, you could be the victim of undue influence. By making your attorney aware of your wishes (and the reason for them), you can better ensure that your estate is distributed the way you want.

The Best Place to Start: Have a Rock-Solid Estate Plan
The issue of undue influence is much more complicated than explained above. Nevertheless, we hope that this article has given you an idea of what undue influence is and how you can identify it. Estate plans are meant to provide peace of mind and the knowledge that your assets will go to the people you want to receive them. But if your documents are challenged on the basis of undue influence, all your planning could be for naught. That’s why it is critical that you consult with an experienced attorney to create a rock-solid estate plan.

If you believe a loved one has been the victim of undue influence, want to challenge an estate plan on the basis of undue influence, or want to avoid the appearance of undue influence in your or a love one’s estate plan, contact the experienced Oklahoma City estate planning attorneys at Postic & Bates today for a free, no-obligation consultation appointment.

Contract on a table with two people viewing

How do I know if my income tax debt is dischargeable in bankruptcy?

October 3, 2019/0 Comments/in News /by clooten

Tax debt may be discharged through bankruptcy. Income tax can be discharged in bankruptcy if the tax meets certain requirements.

In general, income taxes are dischargeable if:

-The due date for filing the taxes is at least 3 years ago. The due date is usually April 15 or October 15 if you filed for an extension.
-The tax return was actually filed at least two years ago. If you have not filed a return, the tax is likely not dischargeable.
-The tax was assessed at least 240 days ago. Taxes can be reassessed when you are audited, but under normal circumstances, tax assessment happens when you file a tax return.
-The tax return was not fraudulent. This means you are not attempting to evade your taxes.

If you have employees and your tax debt is related to withholding tax (Form 941 or 940) from your employee’s pay, then you may not discharge that debt in bankruptcy, ever. You may, however, stop IRS collection activity by filing a Chapter 13 bankruptcy and paying the nondischargeable tax back over 5 years.

In view of the relative intricacy of these provisions, it is always wise to check each particular fact situation against the Code itself. In some cases, when significant amounts of money are involved, it may pay to delay filing until one or more of the time periods listed have expired.

Taxes are the debts that are most frequently nondischargeable in bankruptcy cases. A rather complicated series of cross-references within the code can be followed to the conclusion that, basically, only the types of taxes listed below are are not discharged in consumer chapter 7 cases:

-Any tax for which a return, or equivalent report or notice, if required was not filed, for which a fraudulent return, report, or notice was filed, or which the debtor willfully attempted to evade;

-Any tax with respect to which a later return was filed within two years before the date of filing of the bankruptcy;

– taxes on income or gross receipts
a) for which a return, if required, was last due within three years of the filing of the bankruptcy, or
b) assessed within 240 days before filing of the bankruptcy, or
c) not yet assessed, but assessable after filing of the bankruptcy;

-property taxes assessed before commencement of the case and last payable without penalty less than one year before filing of the bankruptcy;

-excise taxes…

-Taxes required to be collected or withheld by the debtor, such as employment “trust fund” taxes (income taxes and FICA withholding) or sales tax

Once counsel obtains the necessary information the claim for each tax year must be separately analyzed.

Small Claims Court – Oregon

October 3, 2019/0 Comments/in News /by clooten

What is small claims court?
Sometimes called “the people’s court,” small claims court is for cases involving claims of less than $10,000. Cases can be decided quickly and economically in small claims court where hearings are informal and you do not need a lawyer. In fact, you must have special permission from the judge to bring a lawyer with you to small claims court.

What types of cases are heard?
Small claims court is for all claims for money or the recovery of personal property valued at under $750. Small claims court can also be used for the same kinds of claims valued from $750 to $10,000 by people who do not want to use a lawyer and who want to get their case heard relatively quickly. Class action suits, certain inmate actions and actions that call for statutory attorney fees (where the claim exceeds $750) cannot be heard in small claims court.

What can be won in small claims court?
Small claims court can only award money (up to $10,000 plus court costs) and/or the recovery of personal property. You cannot ask the court to order the defendant to do anything, or to refrain from doing something. If you need an order to make someone do something or stop doing something, other courts are available.

How do I file a lawsuit?
Before you sue, try to settle your dispute. When you file your claim with the court, you will be asked to sign a sworn statement called an affidavit stating that you have made a “bona fide” (good faith) effort to collect on the claim. You can try to settle by phone or in writing. Make sure your offer is simple, clear and unemotional. Remember that all written communications can be used later in the courtroom if necessary.

If you have exhausted all reasonable steps to settle the dispute out of court, and you have determined whom you are going to sue and where to file your case, it is time to prepare everything you need to start a lawsuit in small claims court. You should collect all the information that will be needed before you go to the courthouse. If you are filing the claim, you are the plaintiff and the party you are suing is the defendant. As the plaintiff, you have the burden of proving your case. You have a higher risk of losing your case if you do not have the appropriate documentation and other evidence to prove your case. Collect your records, including copies of contracts and agreements, and bring any necessary witnesses or arrange for their telephone testimony in advance, as letters from witnesses may be considered inadmissible.

You will also need the following information:

-Your complete name and address.

-The complete name and address of each person or business you are suing. Correct names and addresses are vital, because the court cannot grant a judgment against a defendant who is improperly named in the complaint. If the defendant is a business, call the Oregon Secretary of State’s office, Corporation Division, at (503) 986-2200, and ask for the Business Information Center to see if the business is registered. You may also go to http://egov.sos.state.or.us/br/pkg_web_name_srch_inq.login and do a business name search from that website. Use these resources to obtain the correct title of the business and the name and address of its registered agent. The proper person to serve is the registered agent, officer, director, general partner or managing agent of the corporation. If the business is a partnership, you should name all partners individually and the partnership by its correct legal name. If the business is a sole proprietorship, you should find out both the name under which the business is operated and the name and address of the owner. You can find this information by going to the Assumed Names Department at the County Clerk’s office, or through the Oregon Secretary of State’s website.

-The amount you intend to claim in damages. (This amount must be $10,000 or less.)

-A simple and concise statement of the basis for your claim, including the date the claim arose and any other relevant dates.

-Filing fees.

Once you are prepared, you can begin your suit by visiting the Small Claims Department at the courthouse. The courthouse clerk will give you the appropriate forms to file your claim and can help you with limited information. However, he or she cannot give you legal advice. If you need legal advice, you may call the Oregon State Bar Lawyer Referral Service at 503-684-3763. A lawyer referred through the service will charge no more than $35 for an initial consultation. The attorney can also advise you on whether your case qualifies for attorney fees and whether small claims court is the best option for your situation. If small claims court is your best option, the attorney can look over your paperwork. You may have to pay more or decide to proceed without an attorney if counseling and review of your documents require more time.

When you file your small claims documents, you will be asked to swear under oath that your small claims statement is true. You will also have to pay the necessary filing fees. You have the option of paying a higher fee for a jury trial. These fees generally must be paid in cash or by money order or company check. Most courts do not accept personal checks. All of these costs may be added to the amount you recover at trial, if you win.

Where do I go to file the lawsuit?
If you have a tort (accident) claim, you may file in the county where the accident took place or in the county where the defendant resides. If the dispute is related to a service or purchase, you may file in the county where the service or purchase took place (or was supposed to take place), or in the county where the business in question is physically located.

Under some circumstances, more than one court can be used. For example, if the defendant lives in one county, but agreed to perform services in another county, you can select either county as the place to file your lawsuit.

Can my lawyer help me with my case?
Certainly. Your lawyer can help you get ready for your small claims court case, organize your evidence for you and advise you on what to say. If you win, a lawyer can also advise you on how to collect your judgment. However, a lawyer will not be able to be present with you in small claims court.

What will it cost me to file a claim?
Costs vary from county to county. You will have to pay a filing fee of approximately $50-$100, depending on the value of your claim and the court in which you file. If you are the small claims court defendant and want to contest a claim against you, you may have to pay a fee also; courts are not uniform on this, so check with the clerk’s office.

How will the defendant know I have filed?
The claim and notice of your suit must be served on (delivered to) the defendant. The court will give you information on how the notice may be served. You may use the sheriff or a private process server to serve the defendant.

What do I do next?
Call the court clerk after two weeks to find out if and when the defendant was served. Knowing the exact date of service is important because in most courts it will be used to calculate the trial date. Always verify the trial date with the court clerk and be at the courthouse early; you may need time to park and find the room where your case will be heard. Some courthouses have long lines due to security checks.

If you need an interpreter for yourself or one of your witnesses you may be able to request an interpreter through the court’s interpreter services. If an interpreter is available in your county, make sure to request their services well in advance of the trial date.

What must the defendant do?
Within 14 days after receiving the notice of your claim, the defendant must do one of three things:

-The defendant can acknowledge your claim as valid and pay the clerk of the court the amount of the claim, or provide delivery of the disputed property, plus any filing fees and expenses paid by the plaintiff. If the defendant pays or otherwise satisfies the claim, you must provide him or her with proof of the payment. Then, the defendant must mail proof of payment to the court.

-The defendant may ask for a hearing and/or assert a counterclaim against you. If the defendant’s counterclaim is more than $10,000 however, the case would then have to be heard in a circuit court.
If the defendant requests a hearing, the clerk will notify you (the plaintiff) and the defendant by mail of the time and place set for the hearing. If the hearing date is not convenient, either party may request a postponement. The request must be in writing and received by the court at least seven days before the hearing. If you do not appear in court at the time set for the hearing, your suit will be dismissed, and you cannot file it again.

-If the amount against the defendant is greater than $750, he or she may request a jury trial.

If the defendant requests a jury trial, the clerk will notify you by mail as to what you must do next. If the court has a mandatory arbitration program, the clerk will inform you about the arbitration rules and fees. If the court does not have a mandatory arbitration program, you must file a written formal complaint form within 20 days of the request for a jury trial. If this happens, you will almost certainly need a lawyer. Your case will then proceed like any other regular lawsuit in the circuit court. Additional filing fees will be required at the time you file the formal complaint. If you do not file the complaint within 20 days, the action will be dismissed by the court.
What if the defendant fails to respond?
If the defendant does not respond to your claim filed in the small claims department, you should fill out a “Request for Default Judgment” form. Once you submit the form, the court clerk will enter a judgment against the defendant for the amount you are asking in your suit plus your court costs.

Your claim will be dismissed in 90 days if the defendant does not appear and you have not filed the request for default judgment. It is your responsibility to check with the clerk every two weeks after the notice is served to see if the other party has filed a response.

What happens in court?
Many judges will first present the opportunity for mediation. Mediation is a process in which a trained, neutral mediator facilitates communication between opposing parties in an attempt to reach agreement. If you and the defendant agree to mediation, a volunteer mediator will meet with you privately in a separate room.

If you do not reach an agreement or do not wish to mediate, the judge will listen to each side. This is called a hearing. Both the mediation and the hearing may take place on the same day. You should allow two to three hours for the entire process.

If you have a hearing, bring your witnesses. Also bring any pictures, diagrams, account books, bills, receipts, contracts, notes, dishonored checks or other evidence that will help the judge make a decision. Whatever you present in court will be all the judge knows about your case. If your case is complicated, it may help to give the judge a written summary of your position. The judge will examine the evidence and question the parties and their witnesses before making a decision. The decision or judgment may be announced then or later.

What happens during the hearing?
Usually, the court will go through a docket call. Answer when your case is called. Most judges will briefly explain the procedure to be used in your trial. If you are confused about anything he or she says, or if you have other questions, do not be afraid to ask the judge. When the trial begins, the judge will ask you and your witnesses to swear to tell the truth. The judge will also swear in the defendant.

If you are the plaintiff, you will have the first chance to tell your story. Go through your prepared statement. Ask the judge if you may call on your witnesses, and present any documents or photos. After you and your witnesses have told the judge your story, the defendant will have a chance to tell his or her story.

After the judge has heard the facts from both sides, including witnesses, and everyone has asked all their questions, the judge will decide who wins the case and the amount, if any, the winner should receive. If the judge wants more time to think about the case, he or she will tell you when you can expect a decision.

What happens after a decision is made?
When the judge makes a decision, he or she will fill out a judgment form identifying the winning party and the award. The losing party is then expected to pay the sum awarded or to deliver the necessary property as directed.

How do I collect my judgment?
It is your responsibility to collect your judgment. The court cannot do this for you. It is up to you to find out where the defendant has assets (property) that can be seized to pay your judgment. If you have received a judgment and the defendant refuses to pay it, you may be able to have his or her wages or bank account garnished. The court does not provide garnishment forms. The forms may be purchased at a store that sells legal forms.

You also may put a lien on the defendant’s real property, have some of his or her personal property seized, or have your personal property recovered by the sheriff. If you do not know where the defendant banks or where the property is, you can ask the court to require the defendant to come to court and answer under oath questions about his or her property. You must pay for these methods of enforcing your judgment, but this fee is recoverable from the defendant. You will also have to prepare and file additional legal papers with the court.

What if I lose my case?
If the judge decides against you, you lose the fees you paid to start the suit. You will also have to pay the defendant the fee he or she paid the court when the trial was requested and the prevailing party fee. Of course, if the defendant filed a counterclaim and won, he or she may get money from you.

Attorneys in Umatilla County.

Mediation of Family Law cases

October 2, 2019/0 Comments/in News /by clooten

What is mediation in family law cases?
Mediation is a process that gives people who disagree on issues in a family law case help in reaching an agreement by a neutral person trained in problem solving. Each Oregon county is required to provide some form of mediation service in family law cases usually associated with custody and parenting time only.

Who is a mediator in family law cases?
Mediators in family law cases are trained as licensed social workers, psychologists and attorneys. Some mental health professionals may not mediate financial issues such as support and property division. Some attorney mediators may not mediate custody or parenting time disputes, so you should inquire before hiring them.

What kind of family law cases are mediated?
Any type of family law case may be mediated. If there is a disagreement over custody of minor children, parenting time with minor children, child or spousal support, or allocation of debt and distribution of property, the parties may (with or without their lawyers) call on a mediator to help them resolve their disputes. Mediation is available whether or not the parents of the minor child were married, and it is available to resolve disputes over grandparent visitation. The courts encourage mediation of disputes in family law cases, because the court process often fails to adequately resolve disputed issues. Mediation is not normally used to address a family abuse prevention restraining order.

What is the cost of family law mediation?
The cost of mediation in family law cases varies from county to county and from case to case. Some counties provide mediation services at no cost through their county’s department of family services, so long as the case is filed in that county. Other counties provide mediation services, but the parties must pay a fee in addition to their filing fee to meet with a mediator who has contracted with the county to provide mediation services. Those fees vary greatly. Some services will reduce or waive the fee for low-income people. Private mediators’ charges vary. Check with your individual county to determine what the charges for these services are in your area.

What is the procedure in family law mediation?
In some counties, as soon as a petition is filed, the parent filing the petition must tell the court that there is a controversy over custody or parenting time with a minor child. The parents are required to attend a mediation orientation session, a parenting class, and meet with a mediator to try to resolve those disputes. In other counties, the court requires the parties to attend mediation when one or more parties ask the court to hold a hearing on custody or parenting time. And in some counties, there is no mandatory requirement of mediation, but the court maintains a list of private mediators who will, upon request, assist parents in resolving custody and parenting time disputes.

If one of the parties in the case reasonably believes mediation is not appropriate because it will expose him or her to violence or intimidation, the mediation can be structured to minimize the danger, or the mediation requirement might be waived.

Even if there are no children, many counties have a number of private mediators, typically lawyers, who will assist parties in family law cases to resolve their disputes. This service covers divorces and other types of family separations.

Each party is encouraged to give information to the mediator prior to the mediation session to help the mediator resolve the dispute. Lawyers for the parties often do not attend the mediation if it is with the county’s mediator but can attend if the mediator is a private party. Lawyers may attend the mediation sessions if both parties agree. A mediator may first meet with both parties (and their lawyers), and then meet with each side confidentially, going back and forth between the parties until an agreement is reached. This is called “caucusing.”

What happens at the end of family law mediation?
If the parties in mediation of custody and parenting time issues reach an agreement, the mediator will usually draw up an agreement that the parties sign. The agreement may be presented to the court for its approval. If the mediation involved financial and support issues, the mediator may draw up a memorandum of agreement, and then the parties take the memorandum to their lawyers, who complete the papers required for court approval. If the mediator is a private party and an attorney, he or she may prepare the necessary legal paperwork to effectuate the agreement.

On the other hand, if the dispute is not settled in mediation, then the case proceeds to trial before a judge. Anything that was said in the mediation is confidential, and the court decides the issues. Therefore, the court may decide custody, support and financial issues without knowing what the parties’ positions were during mediation. Most courts have a standard parenting time schedule that they may impose if the parties do not offer a mediated plan of their own. If the parties reached an agreement in mediation, the mediator may be called to court to testify about the terms of the agreement.

Divorce attorneys in Hermiston Pendleton Oregon.

Divorce in Oregon

October 1, 2019/0 Comments/in Life/Living /by clooten

What happens in an Oregon divorce proceeding?
A divorce, also called a “dissolution of marriage” by the courts, is a way of legally ending a marriage. A divorce judgment will decide:
The date your marriage ends;

-Who gets custody of your children and when you and the other parent see them;

-Who pays child support and how much;

-Who will pay health insurance and medical bills for the children;

-Who should pay past debts;

-How property (including retirement benefits and the family home) will be divided; and

-Whether one spouse will pay spousal support (alimony) to the other.

Do I need a legal reason to get a divorce?
No, Oregon has “no fault” divorce. The only reason you need is that you and your spouse cannot get along and you see no way of settling your problems. The law calls this “irreconcilable differences.”

What if I just moved to Oregon?
In almost all cases, either you or your spouse must have lived in Oregon for six months before filing for divorce. In addition, the divorce must be filed in a county in which one of you live. It is possible for you to obtain a legal separation in Oregon prior to obtaining six months residency and then convert that to a divorce once you have lived in Oregon for at least six months.

Will I need a lawyer to get a divorce?
If the divorce is uncontested — that is, if you and your spouse agree about all the terms of the divorce — you may be able to complete much of the divorce paperwork yourself, but you will probably still want advice from a lawyer. If the divorce is contested, you will almost certainly need a lawyer.

Oregon law creates a “short form” summary dissolution proceeding for people with very simple divorce cases. If you meet all the requirements for a summary dissolution, you can get the forms at the county courthouse or at the court’s website. You can probably do this type of divorce paperwork yourself, but you may want to have a lawyer look it over.

Self-help forms for more complicated divorces may also be available. Many Oregon counties now have family court facilitators available at the courthouse to assist you in completing and filing self-help divorce forms. Call your local court to see if that service is available.

What do I need to do to start a divorce?
If you or your spouse have lived in Oregon for six months or longer, you need to do three things to start your divorce:

-You must file several documents, including a petition for dissolution of marriage, with the circuit court clerk’s office at the local county courthouse. The petition tells the court and your spouse what you are asking for in the divorce.

-You must have the petition and any other required documents officially delivered to (“served on”) your spouse. This lets your spouse know that a divorce action has been started and what you are asking for.

-You must pay or be excused from paying the fees that are charged for filing a divorce petition. There might also be costs for having your spouse served.

How do I serve the divorce papers?
If a lawyer is handling your divorce, he or she will have the divorce papers served on your spouse. If you are using “do-it-yourself” forms, the instructions will tell you what you need to do. Your spouse can agree to sign papers that say he or she has been served. Otherwise, your spouse must be served by either the sheriff, process server, or another adult (not you or your children).

If you receive certain public assistance benefits, or if child support has already been set, the Division of Child Support (DCS) may have to be served with the divorce petition. If you do not have a lawyer, or if the divorce forms you are using do not have instructions about this, you can call DCS to find out how to serve them with the papers.

What if I am served with divorce papers?
If you agree with all the terms of the divorce as listed in the petition, you do not need to respond. If you want to challenge the terms listed in the petition, you must file a written answer —called a “response” — with the court within 30 days after you were handed the papers. Contact a lawyer, your local legal services office, or the courthouse (if your county has a facilitator program) to learn about what you can do. There is a court fee to file a response in a divorce case, unless you qualify for a fee waiver or deferral.

How much does a divorce cost?
The filing fee for each party in a divorce is $287, as of September 2019. The cost to serve your spouse usually starts at $40 and increases depending on the company you use and how difficult it is for them to find your spouse. There may be other filing fees depending on your specific circumstances. If you cannot afford to pay the costs and fees, you can ask the judge to waive the fees or defer them to a later date. You will need to fill out court papers that show your income is low, and possibly that your expenses are more than your income.

If you hire a lawyer, you will need more money. The more complex the divorce is, the more it will cost. The more issues you and your spouse disagree about, the more work your lawyer will have and the more expenses you will have. Ask your lawyer to explain fee and billing procedures at your first conference. Be sure you know what the lawyer’s charges include, and that you get this information in writing. Sometimes a lawyer will agree to represent you on a payment plan or other arrangement, especially if you own a house that has some equity in it.

If your spouse’s income is much higher than yours, the judge may order your spouse to pay your lawyer. If your income would allow you to make monthly payments to a lawyer, you can call the Oregon State Bar Lawyer Referral Service for help finding a lawyer who offers payment plans. The number to call is (503) 684-3763 from the Portland area, or (800) 452-7636 from elsewhere in Oregon. An online referral request form is also available at www.osbar.org/public. In addition, if your income is low you may qualify for the Modest Means Program, where you would be referred to an attorney who has agreed to charge either $60, $80 or $100 per hour, depending on your income.

How long does it take to get a divorce?
The length of time it will take you to get a divorce depends mostly on the complexity of your case. If you are filing for temporary orders, such as custody and child support, or if you and your spouse dispute the issues in the divorce, you may need to have court hearings. Court timelines can affect how long it takes to get the final divorce judgment and many courts require divorce cases to be resolved within one year of filing the petition.

Can I take back my former name?
Yes. The judge must give you back a former name if you ask for it in a divorce.

What is mediation?
Mediation is one or more private counseling sessions in which a trained person tries to help you and your spouse reach an agreement. Most, if not all, counties offer this as a free service through the courts. The judge will probably order both of you to go to mediation in an attempt to agree on divorce issues such as child custody, and parenting time. Some counties allow you to mediate support and property division as well. If this process is not appropriate for you because of safety or other concerns, you may ask that the requirement be waived.

All mediation proceedings are private and confidential. Neither party is required to agree to any solutions proposed by the mediator. If you are able to reach agreement on some or all of the issues, a written summary of that agreement is usually sent to the lawyers by the mediator.

If you and your spouse cannot agree and one of you will challenge the divorce issues in court, a judge will have to make a decision about the issues. Temporary orders may be issued concerning custody, support, parenting time and costs before your divorce trial. A custody decision may be made prior to a decision on any other issue.

What is a legal separation?
A legal separation is a court order that states who gets custody of the children, who pays support for the children, whether spousal support is ordered, and who gets what property. You might want a legal separation if your religious beliefs prohibit divorce or if you or your spouse have not lived in Oregon long enough to file for divorce. A legal separation costs about the same as a divorce. Filing for legal separation does not prevent a divorce from being filed.

The main difference between a legal separation and a divorce is that you are still married after a legal separation. Therefore, you may still have the right to inherit property from your spouse if you are legally separated, unless the separation judgment says otherwise. If you are divorced, you lose that right.

Divorce lawyer in Hermiston and Pendleton.

Marriage in Oregon

October 1, 2019/0 Comments/in Life/Living /by clooten

What is marriage?
Marriage is a binding contract between two people of either sex who agree to take each other as spouses. The marriage contract grants rights and duties on both parties.

What is a domestic partnership?
As of September 2019, two people of the same gender and at least 18 years of age, one of whom being an Oregon resident, are still able to contract to be domestic partners. Called a Declaration of Domestic Partnership, the document is available at each county clerk’s office, or online, and requires a small filing fee.

Who can marry in Oregon?
In Oregon, you must be 17 years old before you can marry. If you are under 18 years old, you must have the written consent of a parent or guardian before you can marry. An exception applies if you have no parent or guardian living in Oregon. You may not marry a first cousin or anyone nearer of kin to you (unless they are your first cousin by adoption).

May a marriage be annulled?
A marriage may be annulled, or set aside by the court as if it had never occurred, if at the time of the marriage: either person was under age; either person was incapable of understanding what he or she was doing; or either person consented to the marriage but that consent was obtained by force or fraud.

Do I need a marriage license?
In order to marry you must apply for a license from the county clerk’s office, for a small fee. The county clerk will issue the license, although the license will not be effective for three days after the date on which the application was signed. This waiting period may be shortened by an order issued by a judge or the county clerk.

Is a physical examination required?
No.

Is a Social Security number required?
Yes.

How long is the marriage license valid?
The license is valid for 60 days. If you do not marry within that time frame you must apply for another marriage license.

Where can the marriage be performed?
Once you have a license from any county clerk in Oregon, you can have the marriage anywhere in Oregon.

Who can perform the marriage?
The marriage may be performed by an Oregon judicial officer, county clerk or a clergyperson of any religious organization or congregation. Use of a judicial officer may include an additional fee.

What does the marriage ceremony have to include?
In the marriage ceremony each person seeking to be married must declare in the presence of the person performing the marriage and two witnesses that they agree to take each other to be spouses.

Do I file a document after the marriage ceremony?
The person who conducted the marriage must complete the original marriage application form and license within 10 days of the ceremony, and the application with the signature must be delivered to the same county clerk’s office that issued the marriage license.

Does marriage affect my will?
Marriage may revoke an existing will. A will written before the marriage may be valid if it was prepared with the marriage in mind. Marriage does not change the beneficiary of any policy or account, so you must make these changes with each institution, such as life insurance companies, retirement plans, bank or investment accounts, using their forms.

What is a prenuptial agreement?
Before marriage, people may sign an agreement that determines their rights and duties regarding their property and support obligations if they divorce. The agreement must be in writing. Both parties to a prenuptial agreement must fully understand the effect of the agreement, including the legal rights they may be giving up. You should ask the advice of a lawyer before signing any prenuptial agreement.

What about debts?
Marriage does not make you or your spouse responsible for the debts either of you incurred before marriage. After marriage, debts related to the family, including costs of children’s education, become the responsibility of both spouses. Creditors may sue either or both of you to collect these debts and can collect unpaid bills from the person whose name is on the bill.

Does a married person under 18 have the same legal rights and obligations as an adult?
Married persons under 18 years of age are now considered to have reached the age of majority for most purposes. However, they still must follow other laws with age limits, such as liquor, cigarette and voting laws.

May I keep my name after marriage?
You are not required to change your name when you marry. You may change your last name to your spouse’s last name or combine the two last names. If you decide to do either of those, you may also change your middle name to your surname prior to the marriage. This is accomplished by filling out the marriage application documents.

Does Oregon have common law marriages?
A common law “marriage” is not created in Oregon. However, if a couple is from a state that acknowledges common law marriages, and the couple meets the requirements of common law marriage of that state, then the state of Oregon will recognize the marriage of that state as valid in Oregon.

Lawyer in Hermiston and Pendleton.

Liability for defective products

October 1, 2019/0 Comments/in News /by clooten

If a defective product causes an accident that results in death, injury or property damage, the manufacturer, distributor, retailer and lessor of the product may be liable for the damages caused by the product. The party suffering injury or damage is called the plaintiff, and the party sued for damages is called the defendant.

The plaintiff must establish that a product has a defect that made it unreasonably dangerous at the time the product left the control of the defendant. “Unreasonably dangerous” means that the product must be more dangerous than the ordinary user would expect. Such a defect can be shown by proving a flaw in the materials used, faulty manufacturing, an unsafe design, or inadequate instructions or warnings. It may also be possible to show that the product was defective because it did not perform in keeping with the user’s reasonable expectations. In some instances, it is not necessary to prove that the defendant was negligent.

The plaintiff must show that after the product was placed in use, it was not altered in a way that materially increased the risk of product failure or accident. However, if such an alteration was made according to the defendant’s instructions, the alteration itself may be the defect. In addition, the product must have been used in a manner for which it is intended or reasonably anticipated.

If a defective product causes an accident, it is possible to bring a lawsuit against the manufacturer or distributor of the product, even though the person injured purchased the product from a retailer and not directly from the manufacturer or distributor. The damaged party can be the purchaser, consumer, user of the product, family member or bystander. It is necessary to show that the company sued was in the business of manufacturing or marketing such products and distributed the defective product that caused the accident.

Usually disclaimers or limitations of liability for damages in the seller’s or manufacturer’s sales contracts or product literature do not prevent an injured person from recovering damages. This is especially true if the product was purchased and used primarily for personal or household use, as distinguished from business purposes.

It may also be possible to recover against a seller of a used product, if the seller is in the business of selling such used products and made an explicit or implicit representation that the product was safe.

The total money damages in a product liability case may be reduced because of the “comparative” fault of the plaintiff that was related to the accident. Oregon’s product liability laws require a plaintiff to be no more than 50 percent at fault to be awarded damages.

If you think you have a products liability claim, it is very important to protect and preserve the product as much as possible, and prevent any avoidable deterioration or change in it. This is so, even if the product has been damaged in the accident and is quite large. Examination for defects by an expert may be required. It is also important to gather and save all purchase bills, sales contracts, and delivery, assembly, repair, maintenance, service and warranty papers and any other documents that may be available. Such information will be very helpful.

Although a defect in the product must have existed when it left the defendant’s control, it need not have appeared immediately. Many defects do not cause accidents or occurrences until later in the product’s useful life. However, in Oregon, you must ordinarily file your lawsuit within a maximum of two years after the death, damage or injury. If, however, at the time of the accident the product was more than eight years old, you probably will not be able to bring a lawsuit. There are exceptions to the eight-year rule for asbestos products and breast implants containing silicone, silica or silicon, side-saddle gas tanks and certain extendable equipment.

How do I file for Bankruptcy?

September 26, 2019/0 Comments/in News /by clooten

When you are being overwhelmed by your debts, you may choose to file a Chapter 7 bankruptcy. A Chapter 7 bankruptcy, often called a straight liquidation bankruptcy, gives you the opportunity to discharge, or be relieved of liability for, all or almost all of the debts you owe on the date you file your bankruptcy. You do not have to make any future payments on those debts that are discharged, and your creditors are stopped from attempting to collect those debts. There are some debts that cannot be discharged, such as criminal fines and alimony or child support. Other debts, such as taxes, student loans and debts incurred as a result of your fraud, may not be dischargeable (depending on the circumstances). Personal income taxes are dischargeable if you have filed a tax return and certain time periods have passed. The rules for discharging taxes are complicated; if you have tax liabilities you should consult with an attorney prior to filing bankruptcy. You may receive a discharge in a Chapter 7 bankruptcy once every eight years.

On the date you file your bankruptcy, all of your property, and income which you have earned but not yet received, becomes part of your “bankruptcy estate” and subject to the claims of your creditors. Other property, such as the right to an inheritance or proceeds from a divorce decree or divorce settlement acquired within 180 days after the date you file, may also be included in your bankruptcy. Under certain circumstances, your right to tax refunds for prior years or the current year may also be included in the estate, even though you have not yet received the refunds.

You are entitled to protect, or exempt, certain property. If all of your property and income is protected, you will not lose any of your property in the bankruptcy. Your bankruptcy would then be called a no-asset bankruptcy. Depending on how long you have lived in Oregon you may use either the Oregon exemptions or the federal exemptions. For instance, under the Oregon exemptions some of the property that is exempt includes your interest in a car up to a value of $3000, household furnishings up to $3000, clothes and musical instruments up to $1800, the federal earned income tax credit, a certain portion of wages, almost all government benefits, some bank account balance, and depending on the amount, possibly the equity in your home. The federal exemptions are generally give you greater exemptions, particularly if you do not have equity in a home.

What is the process for filing a Chapter 7 straight liquidation type of bankruptcy?

Before you can file bankruptcy, you must complete a credit counseling course. This course can be completed on the Internet or by telephone. Depending on your financial situation, you may have to pay a fee. Once you complete the course, you will receive a certificate of completion, which is valid for 180 days. After you complete the course, you or your attorney prepare paperwork including descriptions of what you own, the property that you want to exempt, the names and addresses of your creditors and the amount you owe, your current income and expenses, a statement concerning your financial affairs and a statement of what you intend to do with the property you used as collateral to secure consumer debts. You must include all of the creditors that you know about, including friends and relatives and those creditors you want to pay. You can find many of your creditors on your credit report. You can get a free copy of your credit report once each 12 months from Equifax, Experian and TransUnion. You can get your credit reports at www.annualcreditreport.com. It is good idea to print and save each report for future use. You do not need to get all three credit reports at the same time.

All of your information must be prepared on forms that have been approved by the court. They are filed with the United States Bankruptcy Court, along with the certificate of completion of the credit counseling course. You must also pay a filing fee, which is $335 at the time of this writing. (Note that this filing fee changes periodically.) Under some circumstances, if you cannot afford to pay the fee, as part of your petition you can ask the court for a waiver of the fee. If you are not eligible for a waiver of the fee, you may always pay the filing fee in three installments over 90 days after filing. In that event you would not need to pay any fee at the time you file your bankruptcy.

Your bankruptcy is effective at the time you file it. Once you file your bankruptcy, the court will notify all of the creditors you have included with your petition that you have filed for bankruptcy, and will set a date, time and place for a hearing that is called either the section 341(a) hearing or the “meeting of creditors.” It is usually scheduled about 30 to 35 days after you file your bankruptcy petition. You must attend this hearing and answer questions under oath by the trustee and any creditors who appear. The questions are about your financial affairs, including your property, past earnings, past transactions, and the forms you have filed. Your case may be dismissed if you fail to attend as scheduled.

No later than seven days before this hearing, you must provide a copy of your most recent federal tax return to the trustee, or a transcript which you can obtain from the Internal Revenue Service. Your case may be dismissed if you do not do this. You must also bring to this hearing a copy of your bank statements covering the date you filed your petition and, if you are employed, a copy of your pay stub covering the same date. The trustee may request that you bring additional documents, including the title to any cars, and a copy of your most recent filed state tax return.

The trustee is appointed by the court and is the representative of your bankruptcy estate. It is the duty of the trustee to determine whether you have properly completed all of the forms and listed all of your assets and your creditors, and whether there is some reason why he or she should ask the bankruptcy judge to deny your discharge. It is also the trustee’s duty to take possession and sell any of your non-exempt property, to examine claims creditors may file and determine whether they are proper, and to distribute any proceeds of that property among your creditors. You might be required to make further court appearances at the trustee’s request. Also, if anyone objects for any reason to your being discharged from all of your debts, or if any creditor objects to your being discharged from any particular debt, you will have to appear in court to defend your position. In the great majority of cases, these issues do not come up.

After you file your bankruptcy, but no later than 45 days after the date of your meeting of creditors, you must complete a second counseling course to be eligible for a discharge. This course is on personal financial management. It can be completed on the Internet or by telephone. Depending on your financial situation, you may have to pay a fee. If you do not timely complete this course and file the certificate of completion with the court, the court can close your case without discharging your debts.

If all of your assets are exempt, and no one objects to your discharge, you will receive your discharge from the debts about 60 days after the meeting of creditors.

During the entire bankruptcy process you must be honest and as accurate as possible in the information you put in your petition and with your answers to questions.

You may wonder whether you need an attorney in order to file bankruptcy. If you are an individual or unincorporated sole proprietor, the law does not require you to have an attorney. However, completing all the required documents can be difficult. Also, the filing of a bankruptcy petition is only part of a program to regain financial health. If your petition is filed at the wrong time, you may find that the debts you hoped to have discharged are not discharged — and you will not be permitted to seek a discharge again for eight years.

Some of your property, which can be made exempt from being taken by the bankruptcy trustee, will only be exempt if you take certain steps to arrange your affairs before you file bankruptcy. Only an attorney can give you legal advice concerning your exemptions. You must request exemptions. Appropriate planning before your petition is filed can potentially save you hundreds or thousands of dollars in the long run. There may be other problems with respect to the discharge of certain debts. These debts should be discussed with an attorney before bankruptcy is filed because it may be unwise to file bankruptcy immediately, or it may be advisable to take other steps to resolve that particular indebtedness.

If you have pledged property to a creditor to secure a debt, then generally you must either agree to continue to pay for the property or give it back to the creditor. This is true even if the property is exempt. You may have to attend another hearing before the judge if you have worked out a deal with a secured creditor to keep some property, unless your attorney files the proper declaration as to each debt you want to continue to pay.

It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

We are attorneys in Hermiston and Pendleton Oregon, serving Umatilla County.

Foreclosure on Real Property

September 26, 2019/0 Comments/in News /by clooten

A foreclosure is a procedure to remove a person’s rights to own and have possession of real property, also referred to as real estate. After foreclosure, the person will no longer own the property and will be required to remove all his or her belongings and move.

A foreclosure is started by a person, or company, holding a lien on real property. An owner will normally give a lien upon his or her real property as collateral for repayment of a debt. Typically, a homeowner gives a lien on his or her house to the bank as collateral for payment of a loan to the bank. In some cases, a lien can be placed on real property without the owner’s consent where money is owed that has not been paid. For example, a carpenter can file a construction lien for work done on a house, the IRS can file a lien for unpaid taxes, and a creditor can file a lien for an unpaid judgment.

There are four common types of liens on real property: a trust deed, a mortgage, a land sale contract and an involuntary lien. Foreclosure procedures differ depending on the type of lien involved.

Trust Deeds
A trust deed is a special type of mortgage given by the owner of the real property to a third party, called a trustee, who holds a power of sale for the property for the benefit of a creditor (such as a lender) until the debt is repaid. Banks and other lenders typically use a trust deed.

A trust deed can be foreclosed by a lawsuit in the circuit court of the county where the property is located. This type of foreclosure is referred to as a judicial foreclosure and is now common for residential loans in Oregon. The party holding the lien asks the court for a judgment against the owner for the unpaid amount of the debt together with attorney fees and foreclosure costs. If the owner does not pay that full amount to the holder of the lien, then the sheriff of that county will auction off the property to the highest bidder for cash. If there is not enough cash received by the sheriff to pay the judgment in full, then the holder of the lien can collect what is still owed, called a deficiency, from the owner. The owner also must move out immediately.

If the foreclosure is on the owner’s residence or the residence of the owner’s spouse or child, then the owner merely loses the property but does not have to pay a deficiency. However, anyone else who guaranteed payment of the debt will have to pay the deficiency.

After the sale, the owner has 180 days to buy the property back from the purchaser for an amount equal to the auction price paid, plus interest and anything the purchaser had to pay for such items as taxes and maintenance. This is known as a right of redemption.

In order to redeem the property, the owner must serve the purchaser of the property with a notice of owner’s desire to redeem the property. The notice must state the date and time the owner will make payment to the sheriff and the redemption amount. The notice of redemption must be served on the purchaser no more than 30 days and no less than 14 days before the payment date the owner specifies in the notice of redemption.

The holder of a trust deed can foreclose without going to court, too, through a foreclosure by “advertisement and sale” or non-judicial foreclosure. The trustee mails a notice of default and a “notice of home loss danger” to the owner (and any other persons holding an interest in the property) of the amount of the debt and the sale date, time and place, and publishes notice of the sale in a newspaper. The trustee then auctions off the property to satisfy the debt, the attorney fees and foreclosure costs. Following the sale, the owner must move out of the property within 10 days of the sale. This foreclosure process takes approximately 140 days.

In this kind of foreclosure of a trust deed, the owner has no right of redemption after the sale. However, when the foreclosure is by “advertisement and sale,” the owner does not have to pay a deficiency, either, if the property is residential property. In addition, the owner can stop the foreclosure by paying all delinquent payments together with trustee’s and attorney fees and costs at any time up to 5 days before the scheduled sale date. The trustee will then file a notice in the county records showing that the foreclosure proceeding has ended.

Foreclosure often prevents lien holders from seeking a deficiency against the debtor. This protection can be lost if the debtor elects to do a short sale to prevent the foreclosure. It is important to speak with an attorney before doing a short sale.

Mortgages
A mortgage is similar to a trust deed but does not involve a third party trustee. With a mortgage, the owner gives a lien on the property as collateral for the debt.

A mortgage can be foreclosed by filing a lawsuit in the circuit court of the county in which the property is located. The foreclosure is handled in the same manner in which a court foreclosure of a trust deed is handled. The only difference is that there is no right to collect a deficiency from the owner following foreclosure, if the mortgage was given as collateral to the seller of the property, or if the mortgage was given to a bank or other lender for a debt of less than $50,000, and the money was used to pay for the property.

Land Sale Contracts
A third type of lien is a land sale contract. The land sale contract is a contract between the seller and buyer of real property. The seller agrees to give the buyer a deed to the property once the purchase price has been paid. It is very important to carefully read a land sale contract because the rights of the parties may vary greatly depending on the wording of the contract.

The seller under a land sale contract has three principal foreclosure rights.

First, the seller can file a lawsuit in the circuit court of the county where the property is located asking for the unpaid balance of the contract together with attorney fees and foreclosure costs. If the seller’s case is successful, the sheriff will then conduct a public auction for cash. As with court foreclosure of a trust deed, if there is not enough cash to pay the judgment, the buyer is responsible for paying the difference to the seller. The buyer also must immediately move out of the property after foreclosure. Unlike a court foreclosure of a trust deed, however, the buyer has no right to buy the property back after foreclosure.

The seller can choose instead to file a lawsuit in the county where the property is, to eliminate the buyer’s interest in the property. This is known as strict foreclosure. In a strict foreclosure action, the seller gets the property back and the buyer must pay to the seller all of the seller’s attorney fees and foreclosure costs. The buyer is not responsible for a deficiency other than attorney fees and foreclosure costs but has no right to buy the property back either.

The final foreclosure option is known as forfeiture. It is similar to a foreclosure by advertisement and sale of a trust deed. Here, the seller sends notice to the buyer and other parties having an interest in the property, explaining the amount of the debt and a forfeiture date. If the buyer does nothing, the buyer’s interest in the property will be eliminated, and the buyer must immediately move out of the property. Until the date of the forfeiture, however, the buyer has the right stop the forfeiture by making up the back payments together with attorney fees and forfeiture costs. The seller will then file a notice in the county records showing that the forfeiture proceeding has ended.

Liens on Property without the Owner’s Consent
The final category of liens is those that are placed against the property without the owner’s consent. As described above, those can include liens filed by workers on the property, liens filed for unpaid taxes and liens filed by creditors holding judgments against the owner. Each of those liens has their own special procedures for foreclosure. In most cases, however, the result is the same: the sheriff of the county where the property is located will hold a public auction and sell the property to the highest bidder for cash. If the cash is not sufficient to pay the amount of the debt, the person who owes the money secured by the lien will be responsible for the difference. With certain liens, the owner may have the right to buy back the property after the sale.

Debtor’s rights

September 26, 2019/0 Comments/in News /by clooten

A debtor is someone who owes money to someone else. Generally it is not a crime to fail to pay a debt. There are, of course, exceptions. For instance, the failure to pay some court-ordered debts such as child support or criminal fines may lead to criminal charges. Under some circumstances, the failure to pay taxes could have criminal consequences also. Except in certain bankruptcy situations, a debtor can choose to pay debts in any priority.

Debts often arise from the failure to follow a contract or agreement between you and a creditor. Most oral and written agreements for the repayment of consumer debts (debts for personal, family or household purposes, and debts secured primarily by a person’s residence) are enforceable. However, most debts that are for business or commercial purposes must be in writing to be enforceable. If the agreement requires you to pay a certain amount of money, the creditor does not have to accept a lesser amount. Even if you have lost your job, become ill, or just cannot afford to pay the debt, you still owe the amount stated in the agreement. Also, if there was no actual agreement, but the creditor has lent you money, performed services, or provided you with a product and you have kept the product or benefited from the services, you generally are liable to (and must pay) the creditor.

If you owe money, the creditor may assign the debt to a debt collector, which is typically a collection agency. The creditor may hire an attorney to collect the debt. The attorney may also be considered a debt collector. The debt collector may send you a letter or other notice requesting payment. If the debt is based on a consumer transaction, a federal law called the Fair Debt Collection Practices Act requires that the first notice from a debt collector describe the debt and additional charges, costs and expenses according to the agreement between you and the creditor. If you orally dispute this debt, or any portion of it, within 30 days after receiving the notice, the debt collector cannot assume it is valid. If you dispute the debt in writing within this 30 day period, the debt collector must stop any further contact with you until the debt collector sends you proof of the debt. The fact that you do not respond to the debt collector’s notice cannot be used as evidence that you owe the debt.

An Oregon law called the Unlawful Debt Collection Practices Act also controls how a creditor may try to collect a debt, whether by letter or phone call. Unlawful debt collection practices would include the use of obscene or abusive language. The creditor cannot call your employer about the debt or call you at your place of work if you have notified the creditor not to. The creditor may call you at work only after he or she has in good faith, but unsuccessfully, tried calling you at home during the day or between 6 p.m. and 9 p.m. A creditor can write to you at work only if your home address is not available. In either case, the creditor may contact you at work only once a week. A creditor who willfully violates this law may be liable to you for minimum damages of $200, your legal fees, and in some cases punitive damages.

A creditor may sell your debt to a collection agency. This means that the collection agency buys the right to collect the debt. A collection agency may be operated by one person, or it may be a nationwide business. A collection agency has no greater rights than the original creditor and cannot make you pay any fees that could not be charged by the original creditor. Generally, however, the amount of your debt will be increased because it has been assigned to a collection agency. Debt collectors — both collection agencies and lawyers who try collecting debts — must comply with the federal Fair Debt Collection Practices Act, as well as Oregon state law. The federal law prohibits a debt collector from communicating with anyone about a debt except for those involved in the debt collection process. These include you, your spouse or your parents if you are a minor. The debt collector may not harass you or call you at work if the debt collector knows that your employer prohibits that type of communication. A debt collector is also subject to the same collection rules as an original creditor. You may prevent a debt collector from calling or writing to you by notifying the debt collector in writing that you either will not pay the debt or want to stop all further communication with them. You should keep copies of any such communication, as well as any envelopes. If a debt collector violates this federal law, it may be liable to you for all actual damages you suffer and additional damages up to $1,000.

If you have purchased something on credit and signed an agreement called a “security agreement,” and you have failed to pay the debt for your purchase, the creditor may try to repossess or take it back. This will usually only happen when you purchase a major item like a car or furniture and agree to pay the price in installments. Even though the creditor can repossess your property if you do not pay your debt, the creditor cannot enter your house without permission, assault you or take your property if you physically try to prevent the repossession.

If you have not signed a written security agreement, the creditor does not have a right to take any of your property unless the creditor has first obtained a judgment against you. In order to get a judgment, the creditor must go to court. Either the original creditor or a collection agency may sue you to collect a debt. If this happens, you will be served with a summons and complaint. If you want to dispute the existence or the amount of the debt, you must file a timely response with the court. You must file a response within 14 days of the date you are served if you are sued in small claims court. You must file a response within 30 days of the date you are served if you are not sued in small claims court. Filing a response means filing a motion or answer. The summons and complaint generally do not reflect the service date or provide a hearing date. If you do not respond to the complaint, or if you file a response and ultimately go to court and lose, the creditor will obtain a judgment. This judgment will include the amount of debt and may include interest, court costs and the creditor’s legal fees. It may also create a lien upon any real property, such as a house, that you own.

Every claim is subject to a statute of limitations. The statute of limitations is the time within which a lawsuit must be filed if a person wants to use the court system. There are a variety of statutes of limitations depending on the nature of the claim, as well as considerations as to when the limitation period begins to run. If a person is sued and the person believes the statute of limitations has expired, that defense should be raised in the response to the lawsuit. For many claims based on breach of contract, the statute of limitations is six years, often beginning to run from the date of default. Making a payment typically starts the limitation period running anew.

If you are sued, you may have not only have a defense but also a claim for damages against the plaintiff. Your claim for damages may be raised and pursued as a counterclaim in the lawsuit.

A judgment is not a court order that tells you that you have to pay any money. Instead, it is a way for the court to confirm that you owe the creditor a certain amount of money. If the creditor wants to collect any money from you based on the judgment, further action must be taken. The creditor may try to collect your debt by having the sheriff take some of your real or personal property to sell at a public sale. The proceeds of the sale would then be applied to pay the judgment. The creditor may also take money from your savings and checking accounts, or garnish your wages. It is not a crime to fail to pay most judgments.

Oregon law protects, or exempts, some of the property you own, some types of income, or the equity you have in certain property, from being taken by creditors if they obtain a judgment against you. For example, clothes and jewelry are protected up to a maximum of $1,800 in value. Up to $3,000 in value for a vehicle (cars, trucks and other motor vehicles) is protected. Household goods, including furniture, a television set, and utensils are protected up to $3000. There are a number of other exemptions. The value of these items is often determined by “market value.” Except for a car, market value is often called garage sale value. Social Security benefits, TANF, unemployment benefits, retirement income and many other types of government benefits are protected from garnishment. This income may also be protected when deposited in a bank account. Net wages are protected from garnishment unless they exceed a certain amount. For instance, of the date of this writing the first $218 of net weekly wages are exempt. If you are paid once each month, the first $936 of net wages are exempt. (Note that these numbers will undoubtedly change over time.) Except for certain debts, such as student loans, taxes and child support or alimony, a judgment creditor cannot garnish more than 25 percent of your net wages. Net wages are gross wages minus those deductions required by law.

There is also an Oregon exemption (sometimes call the “homestead exemption”) available for the equity a person has in a residence if the residence qualifies as a homestead and is located within the state of Oregon. A single debtor may exempt up to $40,000 of equity in a homestead. Married debtors may exempt up to $50,000 of equity. A judgment may constitute a lien on your interest in a homestead. The lien could be used to sell the homestead to satisfy the lien. In most cases, the judgment amount must exceed $3,000 at the time it was entered before a judgment creditor can force the sale of a judgment debtor’s homestead.

For many of the exemptions, if two or more members of a household are judgment debtors, each person may be entitled to claim the exemption in the same or different property.

Note that the exemptions can be complicated. You may want to consult with an attorney to determine what exemption value (if any) you have in your home or other property when faced with a judgment or the need to file bankruptcy.

We are attorneys located in Hermiston and Pendleton, Oregon.

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Mediation of Family Law cases

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Marriage in Oregon

Liability for defective products

How do I file for Bankruptcy?

Foreclosure on Real Property

Debtor’s rights

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