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Matthew Scott Berkus

Matthew Berkus’s Answers

6,721 total


  • Can attoney's fees and costs in a legal malpractice case be demanded/negotiated- prior to trial?

    We are currently in the negotiation process as the defendant wants to settle. However, the issue of atty's fees and costs has not been discussed, although it is demanded in my complaint served upon the defendant.

    Matthew’s Answer

    What does your attorney say? Unless you have an attorney, you can't get attorney fees. Generally, the settlement is negotiated as a gross sum. On your end, you can factor in your to date attorney fees and costs as part of your decision to accept or reject the offer.

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  • I can't get the debt collection agency to do a "pay for delete", or a no 1099-C. Does anyone have any tips to getting this done?

    I am paying off 60% of my $3,500 debt in in one lump sum, but want the debt collection agency to delete their account on my credit report. Although, this has been a nightmare as they seem to not want to budge with this. They keep saying it is ille...

    Matthew’s Answer

    That is more rumor than reality. Since there is no benefit to the collector for doing either of those things for the debtor, and in fact, violate the Internal Revenue Code and FCRA if they were to do so, very few agencies will do either. Just get your settlement, get it writting, and then pay it.

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  • Can I dump my chapt 13?

    Hi I wanted to know what happens if I stopped paying toward my ch13 ? I would like to try and catch up to my mortgage arrears and work on my credit separately . How long after payment stops do they drop your case? And is the right of stay on my ho...

    Matthew’s Answer

    Here we go again, another case of debtor fatigue. Debtor fatigue strikes every chapter 13 debtor, usually in year 2. Enough time has passed that the debtor forgets why they needed to file in the first place, the BK has stabilized things, but the case is still a little young so there is no light at the end of the tunnel. The debtors head gets filled with doubt and what if scenarios. The problem is your desire to "work it out" is not grounded on reality. Your creditors will not work with you at this point. They benefit from the bankruptcy too, also, most of your unsecured debt has been sold to servicers to specifically colect from the BK. In short, there is no way to hit the reset button when you dismiss your case. Once you file BK, you have to see it through. The ONLY time you dismiss is if you have a windfall and can easily write a check to pay your debts.

    If your circumstances have changed, speak with your lawyer; but if not and you are just tired of being in chapter 13, buck up.

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  • I bounced a check- am I facing arrest?

    I bounced a rent check. The money was in my account, but not all of it was available for use causing the bounced check. The company ho runs the rental complex has not even notified me of the bounced check, and has apparently not tried to redeposit...

    Matthew’s Answer

    You won't be arrested, but if you don't fix the issue ASAP, you will almost certainly be evicted. What I would probably do is call the landlord, say hey, this check is no good (explain why), I am going to be put a stop payment on that check and come down TODAY with a cashier's check or certified check to pay my rent...will you waive the late fee? And see what they say.

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  • I understand restitution and court fees are not dischargeable, but what about juvenile confinement fees.?

    I recently filed chapter 7 and included the juvenile confinement fees as debt, I am aware court fines and restitution are not dischargeable. I did received my final discharge paperwork. However shortly after the franchise tax board is requestin...

    Matthew’s Answer

    Probably not. As other counsel has stated, if the fee is court ordered, it cannot be discharged. If it is not court ordered, but simply part of the statute, then the case is debatable. Unfortunately, you need to start with the assumption that the confinement fees are non-dischargeable, and then work to find if they can be excepted. The general rule is that debts arising out of a criminal event are non-dischargeable in bankruptcy; a juvenile confinement fee would seem to fall into that category, so you would need to find some precedent case law that says the confinement fee can be discharged.

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  • How do I Get My Money Back?

    I had some significant wages garnished from a judgment in a civil case. That civil case judgment was overturned and vacated by the court in the original case. How do I get my money back? Do I need to bring my own lawsuit and if so, what kind of ...

    Matthew’s Answer

    You would have (and probably still can) file a motion in the underlying case to turn over garnished funds.

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  • Can an Education Refinance Loan be discharged in a bankruptcy? An example would be from www.sofi.com.

    The loans would be Federal and Private that were consolidated into the Refinance Loan.

    Matthew’s Answer

    No, a refi of a student loan does not change its character as a student loan. Also, the website has some fine print...they don't actually "combine" your federal and private student loans into one loan; it appears what they do is consolidate the federal loans (this way, the comapny doesn't lose the federal guarantee) and then refi's the private loans and then simply services both loans.

    In any event, trying to refi student loans with the express intent to dischaege the debt later is fraud and could make the debt non-dischargeable on ghat ground.

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  • Which should be deducted from a settlement first: attorney fees or case costs?

    Is it customary for an attorney to deduct his fees before case costs are paid when a settlement is received, or should costs be deducted prior to an attorney taking his portion of the settlement?

    Matthew’s Answer

    What is your "real" question? Is your real question, do I have a way to get more money out of the settlement the attorneys got me by disputing the way the fees and costs are allocated? The general way this works is that thr contingency fee (the attorney fee) is calculated based on the gross (total) recovery. That amount is then deducted. Next, attorney costs are paid, then any medical providers or lien holders are paid, THEN the client gets what is left. The fee agreement probably says something to the effect that the client is responsible for costs.

    Let's do an example. The settlement is $100,000, the contingency is 40%, the firm advanced $2000 in costs, and there is a lien holder against the settlement for $15,000 for a loan that was advanced to the client by a litigation finance company. The $100,000 gets distributed as follows:
    Law firm, $40,000 (40% contingency attorney fee);
    Law firm, $2,000 (for costs advanced by law firm);
    Lender, $15,000 plus any accrued interest;
    Client, $43,000.

    However, the engagement agreement controls the distribution.

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  • Can one take a Charter School to court to force the release from an "Enrollment form" ?

    Dear Sir/ Madam, I moved to DE in December of 2013 from overseas. I did not know that an enrollment form was a contract. I have several complaints about the school that I thought I wanted my child to go to, but in light of their moving to Chr...

    Matthew’s Answer

    What are you trying to get the school to do? Not sure why the school wouldn't allow you to see the enrollment form? If your goal here is to remove your kid from the school, I would imagine you would contact the school district and request a reassignment back into regular public school...there is some procedure you can follow; but it is not clear what it is you want to do.

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  • Do I need an education attorney?

    I graduated high school 9 years ago and just found an error in my transcript that cost me the florida bright futures scholarship. My gpa with a "F" counted, that should have been audited to a "B" when the course was retaken, was a 2.96. When the ...

    Matthew’s Answer

    What does the transcript actually show? It sounds like you took the same course twice, correct? The first time around you got an F. The second time around, you got a B. Does the transcript show BOTH grades and that you took the course twice, or does the transcript show the F for the first time you took the course and no mention at all of the second time around? However, the discussion, at this point, is academic at best, as Mr. Woodring points out, any right to sue has long since expired. And even if you could sue, the case is not that clear cut (it is not an easy winner for you). Candidly, it is a toss up whether you would win because the issue is foreseeability of damages. Your cause of action is a type negligence claim. Negligence (the simple way of thinking about it) requires you prove 4 things. (1) Duty, the school had a duty to issue an accurate transcript (yes), (2) Action, the school did not issue an accurate transcript (you still need to prove that the transcript was inaccurate and the inaccuracy was a result of the school's mistake), (3) Harm, you suffered some sort of "financial" harm as a result and (4) Cause, that the action is the proximate cause of the harm. The problem I see with the case is on "Cause." The resulting harm caused by the action must be reasonably foreseeable. The question is, "at the time" the mistake was made, is it reasonably foreseeable that it the lone errant entry would cost you a scholarship years later? That point is highly debatable.

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