Automatic Stay | District of Arizona & 9th Circuit Grants Debtors Attorney Fees Once Again

Automatic Stay | District of Arizona & 9th Circuit Grants Debtors Attorney Fees Once Again

The pressure of managing debt in any of its forms brings about enormous amounts of stress. Once you file for bankruptcy, for most debtors, the telephone calls and lawsuits from creditors should stop. But if they don’t stop, there is a good chance that a creditor is attempting to illegally collect on a debt. If they do end up illegally collecting on a debt, because of recent court rulings, and attorney can help you recoup those debts, at little cost to you.

If a creditor either starts or continues a lawsuit in family court, justice court, superior court or otherwise, a stay violation most likely has taken place. Certain types of lawsuits and collections are allowed to continue when there is a stay in place, but many are not.  This is why you need a knowledgeable attorney who can evaluate your case to determine whether you case is being handled properly. It is not uncommon for a debtor to not know the activities are illegal and that they have a way to be compensated for their inconvenience and emotional damages.  Recent developments in the Ninth Circuit help Arizonans to recover attorney fees accrued while pursuing an unlawful debt collection.

In 2012, the Ninth Circuit Court of Appeals took away a Debtor’s ability to recoup attorney fees after the creditor stopped collecting on the debt. See In Re Sternberg (2010). This made it very difficult for someone who just filed bankruptcy to be able to pursue unlawful debt collection because the attorney fees were often more than the damage awards.

The Ninth Circuit finally corrected Sternberg in In Re Schwartz-Tallard. The Court allowed a Debtor to recoup all of the attorney fees associated with rectifying the stay violation including attorney fees accrued during the litigation. This means that if you have had a debt that was illegally collected, you can work with an attorney to recoup that money, at little or no cost to you.

So, long story short, if you feel like you have had a debt that was illegally collected on in any situation, give us a call and let us see if we can help you recover the money illegally taken from you.

Lessons Learned From Celebrity Divorce

Lessons Learned From Celebrity Divorce

Johnny Depp and Amber Heard are currently having the unsavory experience of having their divorce and the details surrounding it exposed to the public eye. Obviously this comes with the territory of being celebrities, and the tabloids and are eating it all up and providing eager readers with timelines and analysis. But even if you are not into the gossip of the celebrity world, the information the tabloids have made known could be important to know if facing marital or familial strife.

To be brief (if you haven’t been following People Magazine or E!’s coverage of it all), Ms. Head has filed for divorce from Mr. Depp and has alleged physical domestic abuse over their entire 4-year relationship, the most recent incident happening on May 21st. Mr. Depp’s attorneys have characterized this as a tactic to try to get more money out of the pending divorce rulings. Mr. Depp’s attorneys argue that this is evidenced by the fact that Ms. Heard never gave statements to police in the past about any domestic abuse, and that her alleging it now at the time of filing is only to derive a better financial outcome herself from the proceedings.

It is unclear what direction their case will go, but there is certainly a key lesson in the world of family law to take away from all that the tabloids have reported. The lesson is that when domestic abuse does arise, it is imperative that the victim makes that known affirmatively somehow. The best way would be in a police report. A statement to police is filed away and can be used as evidence in divorce proceedings. If the police are called in for a domestic disturbance, the victim needs to be frank with the police with what happened.

This can be difficult. The emotions of the incident, a desire to protect loved ones (even after a possibly violent incident), or fear of retribution all might make a victim feel the need to not talk freely about what happened with the police. But this is the only way to avoid the problems that Mr. Depp and Ms. Heard are experiencing now. Had Ms. Heard made a statement to police when they had responded to calls about domestic disturbances, her statements could at least stand as a testament that things did actually happen, before any divorce proceedings were undertaken. But instead, without any past evidence to go off of, it is more difficult to ascertain if violence actually occurred.

So, even with all the emotional difficulties that come with incidents of domestic violence in the first place, if you are become a victim of domestic violence, it is in your best interest to have that documented somehow. If police are called, at the very least, make a statement about what occurred. Again, this can be incredibly difficult from an emotional standpoint. But because of the reality of what can happen in the future, it is imperative that this kind of evidence be available if you end up needing a family lawyer to help you ensure your well-being and your future.

Franco v. U.S. Trustee | A Lesson in Self Destruction

Franco v. U.S. Trustee | A Lesson in Self Destruction

Over the years, I have donated hours to helping people fill out their bankruptcy paperwork.  I have spoken to a lot of people about the process after filing without an attorney.  People file bankruptcy without assistance for any number of reasons. I understand it may just seem like paperwork and your case may be simple.

Understanding the simplicity, however, does not mean a person is not taking a big risk with paperwork.  The only way to know is to speak with a knowledgeable attorney who understands the big picture and what the paperwork means. All bankruptcy paperwork is filed under oath and without understanding the rules and documents, a person can get themselves into legal hot water without realizing.

This is what happened to Rogelio Franco.  He successfully filed bankruptcy in 2011 and obtained a Chapter 7 Discharge. A few years later he believed he should file bankruptcy again.  He assumed that since he already took the credit counseling class in his prior bankruptcy, he could use the same certificate as before.

He failed to read the bankruptcy paperwork, or if he did read it, he failed to understand the gravity of the rules and requirements.

After filing for bankruptcy, his case hits some bumps which eventually lead the United States Trustee to file an 11 USC 707(a) Motion to Dismiss against the Debtor.  Additionally, due to the lack of following the rules, the United States Trustee asked the bankruptcy court to enter an order that would not allow the Debtor back into bankruptcy court for one year.

Most of this trouble was avoidable. In part, if he took the class a second time as required, it would have solved a number of problems for him.  He also failed to properly disclose his prior filings.  If the Debtor understood his duties under the bankruptcy code and properly responded, he could have avoided a lot of headache including a failed appeal which is attached.

Bankruptcy is serious business and Debtors need to be ready for the process. In the end, on appeal, the bankruptcy court’s ruling was upheld and Mr. Franco could not come back to Court for one year due to his improper documents and false statements.

Based upon the language of the case, Mr. Franco did not believe he made a mistake.  He thought he did the right thing, he just did not understand his legal circumstance.  Most of his trouble could have been avoided with proper legal advice.  Now, if an employer checks, they may potentially see this court order and it may affect his ability to find work. He is banned from coming to bankruptcy court no matter the issue. It is not worth the risk.

Hopefully we can all learn from Mr. Franco and do it right the first time and not be the cause of our own self destruction.

The LDS Church’s Same Sex Position and Risk of Losing Benefits

The LDS Church’s Same Sex Position and Risk of Losing Benefits

The LDS Church’s Position Taken in the U.S. Supreme Court Same Sex Marriage Case And Risk Of Losing Government Benefits

In my original blog post, I said I would provide a basis for my positions. This is one of a few smaller form posts addressing the different issues.

Summary of Issue: Elder Christofferson said the Church needed to “respond” to the new law created by the Supreme Court regarding same-sex marriage. Though not discussed much, the Church receives many benefits from the Federal and State Governments. The Church is concerned it may lose its benefits.

On April 21, 2015 of this year, the LDS Church announced it signed an Amicus Curiae Brief with the U.S. Supreme Court. An Amicus Curiae Brief is legalize for friend of the court brief.

Though the article characterizes this as the Church “joining a diverse coalition of faith communities,” this was prepared by the law firm that represents the church as well as their office is in a business building built by the church near the Salt Lake Temple grounds. More importantly, this brief gives insight as to the Church’s concerns if the Court protects same sex marriages under the U.S. Constitution.

In hindsight, we know the Supreme Court recognized same sex marriage. With a quick overview of the concerns of the church, it makes the church’s new policies regarding same-sex marriage more explainable. There are likely more issues, but this is at least part of this motivation.

In the LDS Church endorsed Brief, the following cautionary statement was made if the Court ruled same-sex marriage is a fundamental right under the constitution:

[Allowing same sex marriage] would create additional risks to religious liberty. As a group of respected amici has noted, “a scholarly consensus has emerged that giving legal recognition to same-sex marriage may result in widespread and foreseeable church-state conflict.” In addition to the nondiscrimination areas noted above, potential conflicts are expected to arise in the context of:

  • access to government facilities;
  • government licensing for church-related adoption agencies;
  • accreditation for religious colleges;
  • [accreditation]…for their professional training programs;
  • participation in government social services contracts; and
  • the tax-exempt status of religious organizations. Page 32-33 (emphasis added; reformatted; citations omitted).

It is worth noting, this paragraph is using a technique called the “parade of horribles.” The best I can tell, it is not expected that every horrible will actually happen; just advocating the possibility of it.

With that being said, the same-sex marriage ruling could have a deep and long lasting impact. The reason is the federal and state governments will make new rules that recognize equal treatment of all types of marriage unless the rule has a compelling justification to treat same-sex couples differently.

Big question: What is a compelling reason to discriminate against a same-sex couple?

As of today, we don’t know. The Church’s response, along with the majority of other denominations, is that a sincere religious belief based upon scripture is a compelling reason. We will see if the Court’s are willing to accept this as a valid basis.

When it is resolved, you will know it because it will be talked about on the news. It will be a big issue.

On the State level, Utah created a law with a religious exception to legally allow a religion the ability to favor traditional marriage and retain benefits. Recently, North Carolina followed suit.

To the best of my knowledge, these laws have not been tested in the courts and so we will see if the justifications hold up.

In conclusion, this post goal was to provide a basis as to why the Church is concerned it may lose government benefits. The concern is great enough, that I called this a religious constitutional crisis. The Church created and is proselytizing what it believes is a fair legal concept called “fairness for all” for governments to adopt. Additionally, the Church has taken internal steps to comply with issues related to discrimination against a protected class. In my upcoming posts, I will provide context to the “fairness for all” doctrine and the basis for the internal changes of the church.

What Would I Do If I Was a LDS Church Attorney?

What Would I Do If I Was a LDS Church Attorney?

After posting my explanation regarding the issues involved in the new LDS Church same-sex policy, my cousin asked me what I would have done.

My Response

On a purely hypothetical basis, if I somehow ended up in a room with decision-makers on the same sex policy, this would be my advice:

First, I would ask if the issue of same sex marriage the hill you want to die on? How vital is this really in the big scheme of things? I would ask for a one page response type written without names in the same font and size.

Second, I would advise them to have a Ramadan like fast over the issue of same-sex marriage. I would advise them to read the 9th article of faith, which says “we believe the He will yet reveal many great and important things pertaining to the Kingdom of God” every morning.

At sundown, I would ask them to read 2 Nephi 28. In this amazing chapter, it warns that people in our day “shall teach with their learning, and deny the Holy Ghost, which giveth utterance.” vs 4. I would ask them to consider the reality “that humble followers of Christ…are led, that in many instances they do err because they are taught by the precepts of men.” vs 14.

I would advise them to remember that even though prior church leaders stated the church must continue with certain policies, changes were made to those policies due to new “light and knowledge” that had erased previously “limited understanding.” The basis for continuing those policies has since been rejected. See third to last paragraph of article.

I would advise them to consider the unbelievably high suicide rate of LBGTQ mormons and the harm caused to innocent people with the policy.

I would advise them that they are acting like Child Protective Services removing LBGTQ children from the family tree of traditionally married parents.

I would advise decision makers to speak with people who don’t need a temple recommend to keep their job.

I would advise them to be open to apologizing.

Third, I would ask them to sit down again and write another one-page paper in the same font and size. This time the title would be read After. Then I would ask them to prayerfully read each others responses.

If after all of that they decided to move forward down this path, I’d ask them to hire a new attorney. I am not their guy.


I didn’t do the whole Ramadan thing, but I should have.

Even though you have never met my son, from a very young age I was under the impression that he might be gay. I can’t explain it. Even if I did, I would probably wouldn’t make sense. When people come over and spend time with him, inevitably they lean over and whisper, “you know he’s gay right?”

And as you know, if Grandma JaNeanne knew she was right, her mind was difficult to change. I have an entire life of examples.

Until my son was born, my mom was a firm believer that sexual orientation was a choice because that was her experience and it was reinforced by her religious and cultural background.

After spending time with my son, she changed her view of sexual orientation. This is just how this sweet little boy came. He is only eight so we don’t talk about it but we encourage him to be himself; to love himself; that he is good.

If the church wants to take a position that this is his test in life – I understand. But that is not a position I am willing to take as a father. In my line of work, I come across too many sad stories about people who are not true to themselves and the wake of pain that shivers up and down their family tree. If my son ends up gay, I am not uprooting him out of my family tree and I would hope the church would not uproot him either.

This policy is going to be devastating to someone like my son. He is soft hearted and easily influenced if he thinks he is doing something wrong. He gets scared a lot.

He doesn’t know it yet, but more than likely he is being told that he will be removed from his church and what the church calls his eternal family. This will hurt him someday. It hurts me now. It will continue to hurt as I watch him struggle to find his way.

In the end, I am not going to tell him to suffer through his one shot in life living in-authentically while misleading a spouse as to his true nature. I am not going to make a policy that would encourage anyone to live that way.

Brad Kramer once said the church needs to be good enough for his daughters. I thought a lot about this statement. As for my son, the church needs to be good enough for him. If the time comes, I will not leave him in a place that leads to a feeling that somehow suicide is the best option. In turn, I am not willing to put that kind of pressure on any other parent.

Hope for A Note Left In A Home

Hope For Those Who Are Considering Writing Their Own Note

Here is a link to a thread on Note left at foreclosed home. (WARNING: this website has harsh and potentially offensive language including unnecessary sexual references.)

Over the last few weeks, I consulted with a few clients with situations that remind me of this thread.

I cannot say I agree with everything in the thread. I can say, however, that I agree with a some of the sentiments. So many worked hard their entire lives only to lose most of what they view as a large part of their retirement: equity in their home. People dutifully made their payments, repaired their homes, and cared for those four walls. Then only lose it when the economy turned and there was no way to save the value or continue to make payments. A story I have seen over and again.

I am not sure the lesson to be learned. Is it that we should diversify our investments? Should we rent instead of own? I cannot answer that kind of inquiry.

This runs deeper than equity.

I was touched by the following comment:

“I didn’t get a photo of the worst one I ever saw. It was height markings on a door frame. 2 or 3 kids. Names and dates all up and down the one side. Easily from birth to maybe 7 or 8. Big dark mark across the top saying “Lost Our Home.”

The symbolism of this statement is piercing. What I mean is beginning at the bottom of the door – it is about growth and being a kid; being excited to being as tall as your siblings or parent. Then the final measurement was not signified with a name but a moment that would change the experience of that child. I often say to my kids, “this song was popular when I was in eighth grade.” I then tell them the same stories over and again about its meaning to the world and my importance in connection to the song.

When these children grow up they will have similar thoughts, but how will they characterize it? Will the foreclosure be mentioned? I don’t know the answer to that question, but most of the time, parents protect their kids from something that may cause insecurity. So they will probably tell similar stories to connect with their children. The child who’s height was lost with the foreclosure, who is now the parent, will remember a totally different dimension to Coldplay’s “Fix You” than just radio play time.

As I said in the begining, I am offering hope for the person who is considering penning their own note. Though bankruptcy does not cure every problem; it may have saved this home. There are options. The important factor to remember, is to remember, that if you are within the rules of bankruptcy, lenders have to comply and it is involuntary for creditors.

As a bankruptcy lawyer, we are here to help you look at more than just your financial situation. We are here to help you make a decision that has an affect on your relationships, address, and quality of life. Please give us a call to see what we can do to assist your situation. Most important, we understand.

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