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William Mackin

William Mackin’s Answers

5 total

  • Legal Ethics

    Are there lawyers that specialize in legal ethics or would I be able to consult with any lawyer regarding ethics? Do ethics vary by state? If a lawyer has acted unethically, does that mean they have committed malpractice?

    William’s Answer

    There are lawyers who represent attorneys to defend ethics complaints. Normally, an ethics complaint is not prosecuted as a private action but is instead filed with and investigated by a local ethics committee. Ethics do vary by state, even if slightly. An ethical breach is not necessarily malpractice, nor is a single occurrence of malpractice necessarily an ethical breach.

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  • Pressler and pressler has issued an arrest warrant for a debt collection is that legal.

    they say 2005 shows that I have a credit with hsbc bank it was taken over by midland funding than given to pressler and pressler.I called Pressler and Pressler they want the amount plus court fees then if paid in full they will lift the warrant fo...

    William’s Answer

    This appears to be part of the enforcement process for the holder of a judgment against you. Once a creditor sues you and obtains a judgment they have the right under the law to discover where your assets are located (bank accounts, wages, cars, etc.) so that they may collect the money due from you. NJ Court rules provide judgment creditors the right to send you an information subpoena for this purpose. You are required to respond truthfully and completely within a specified period of time (usually 14 days). If you do not respond to the information subpoena in a timely fashion, then the judgment creditor may apply to the court to hold you in contempt and eventually ask the court to issue a warrant for your arrest to appear before the judge to explain why you have failed to answer the information subpoena. The arrest warrant is not being issued because you owe a debt, but because you failed to comply with a legal requirement to which the judgment creditor is entitled. Once you do answer the information subpoena, the arrest warrant can be recalled. But, the judgment creditor is then likely to take the information you provided and garnish wages and levy the bank accounts.

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  • NJ Statute of Limitations on old debt.

    I recently received a notice from a dbt collection agency, offering to settle a past debt to an electric company. The bill was $800+, they are now offering me a settlement of $100+ (I dont have the letter in front of me so I don't have the exact ...

    William’s Answer

    There is not any limitations period for informal collection efforts, but there is a limitations period for bringing legal action to enforce an obligation claimed to be due. In NJ the limitations for the enforcement of obligations due under a contract is 6 years. If the collection agency were to file a lawsuit against you to seek to collect a contractual debt more than 6 years old, the NJ statute of limitations would provide you with a defense to that lawsuit. But you must file an answer to the court complaint (with the court clerk) and specifically raise statute of limitations as a defense. If you don't or you don't file an answer, the court might still enter a judgment against you because you waived the benefit of the defense by failing to formally raise it properly in writing at the proper time with the court. As another consideration, any third party debt collector that files a lawsuit against you to collect on a debt that is beyond the applicable statute of limitations may also be violating the Fair Debt Collection Practices Act and/or other federal and state consumer protection legislation. These violations would give you affirmative claims to raise against the collector in the lawsuit.

    As with any legal question much depends on the particular facts. The answer set forth above is very general in nature and should not be relied on as being applicable or correct for your particular situation. Therefore, before making any decision about how to proceed, you should consult with an attorney who can provide you with specific advice tailored to the facts of your situation.

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  • Property transfer and bankrupt law

    I was in a debt settlement program and the law firm has been frozen and closed by the attorney general. I now have my debts back and can not afford to pay them. My 80 year old mother had placed her home and property in my name with me holding her ...

    William’s Answer

    As a general rule it is dangerous and inadvisable for a debtor to transfer any assets out of their name in anticipation of filing bankruptcy, especially if they are trying to hide assets from creditors or if they do not receive anything of in return for the transferred asset that is reasonably equivalent in value to the transferred asset. Such actions may lead to a denial of discharge, the loss of otherwise available exemptions, and criminal fines and penalties.

    All such transfers pre-petition transfers of assets must be fully disclosed on the Bankruptcy petition. Failure to disclose the transfers can also lead to a denial of discharge, the loss of otherwise available exemptions, and criminal fines and penalties

    A bankruptcy trustee may seek to set aside any transfer of assets made by a debtor within 2 years of the bankruptcy filing date as a "fraudulent transfer" under section 548 of the Bankruptcy Code (1) if it was made with actual intent to hinder, delay or defraud creditors or (2) the debtor did not receive "reasonably equivalent value" in return for the transfer.

    The trustee can also use the state fraudulent transfer law for the same purpose and they typically have a longer "look-back" period (most states allow a 4 year look-back, but some are much longer). These laws vary by state. There are exceptions and defenses available under each set of laws.

    Some courts also recognize that a debtor who holds only "bare legal" title to the asset for the benefit of the true owner of the "beneficial" interest (usually for estate planning purposes) really holds nothing of any value so that it's pre-bankruptcy transfer does not constitute a "fraudulent transfer". Again, each state's decisional law on this exception varies.

    Because each state's laws vary and because each transaction is fact specific and case sensitive, the only way to really understand the legal significance of the transfers you describe for a future bankruptcy filing you may undertake is to consult with a competent attorney in your state who has significant experience in bankruptcy matters.

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