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Matthew Scott Berkus

Matthew Berkus’s Answers

6,573 total


  • Contingency fee attorney fired in Florida 'with cause', now he is withdrawing and filing charging lien, how do I show cause?

    There is a substantial contingency fee agreement with the attorney. I claim numerous ethics violations: conflict of interest, change of scope in representation, putting the attorneys interest before the interests of his client. I fired the...

    Matthew’s Answer

    Since you fired the attorney, you wouldn't object to the withdraw. The attorney has to withdraw from the case and needs a court order to do so. The judge is not going to deny the withdrawal. If the attorney did work, he is entitled to payment for that time spent (that will depend on what the fee agreement says and local rules). I suppose you could object to the charging lien, but you need a legal basis to do so; no way to figure out what that would be on this forum.

    If your case is not over, you should have new counsel by now or seeking one out very quickly and then counsel can deal with the issue.

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  • Is it Legal to File Bankruptcy Before Filing for Divorce?

    I plan to do both.

    Matthew’s Answer

    Nothing wrong with that. You should discuss your situation with a bankruptcy attorney. Although every situation is different, there are general rules when it comes to bankruptcy and divorce. For example, if the marital estate is debt ridden (insolvent), it is usually in the best interest of the couple to file a JOINT bankruptcy prior to the divorce. Doing so cleans things up and makes the divorce a bit easier. If the marital estate has debt, but is asset laden (solvent), then (assuming a BK is needed in the first place), it is usually better to divorce first, then file bankruptcy. If you feel bankruptcy will be needed, meet with a bankruptcy attorney first to strategize your situation related to the debt and divorce.

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  • In California, can an individual legally hire a debt collector to collect a personal loan?

    A personal loan agreement was signed by both parties last year and the loan is in default.

    Matthew’s Answer

    You "can" hire a debt collector. However, as Dorothy adroitly points out, whether you will find a debt collector willing to accept a one off account is a different story. Plus, you need to vet the collector to some degree as you open yourself up to liability if the debt collector violates the debtor's consumer rights.

    Attorneys are usually better positioned to accept one-off collection than major debt collectors. But who knows, you may be able to find one.

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  • Can I be released as a cosigner of a student loan due to my total disability?

    I co-signed various Sallie Mae and private student loans for my child who is now unwilling to pay them back. Since cosigning these loans, I became totally disabled. I had been paying the loans while working, and continued to pay them using my so...

    Matthew’s Answer

    Unfortunately, you don't have many options when it comes to private student loans. No law mandates forgiveness of private student loans when a person becomes disabled. That is not the issue. To get released, the primary borrower must be making the payments and be creditworthy. If the loans are now in default, there is zero chance of you getting released. But if the loans are in good standing, if the primary borrower is making the payments, has a good job, and is otherwise creditworthy, you can sometimes negotiate the cosigner release...but you need the help of the primary borrower. However, based on your post, that doesn't seem to be the case if the student borrower is now not willing (or unwilling) to pay.

    The next option would be settlement. We often negotiate settlements of private student loans. However, that still requires the financial resources to do it. Target settlements are around 50% of the balance due paid in a lump sum.

    Beyond that, maybe you look at chapter 13 bankruptcy, not so much as a way to discharge the student loans, although you could make that argument, but as a way to control collection if things start to get rough (e.g. you get sued, they start levying assets, etc.). Whether you can actually do a chapter 13 is a different matter (i.e. can you afford the monthly payments in light of your asset base).

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  • What is involved in garnishing wages and levying bank accounts?

    Lender will not work with student; requires the full monthly payment. Loans taken for school, student not finished with classes, but had to work full time. Student not making enough to make all payments, defaulted on loans so lender coming to cosi...

    Matthew’s Answer

    Not sure what you are asking, what do you mean "what is involved in..." if the loans in question are private srudent loans, the servicer must file a civil lawsuit, serve the lawsuit (notify you), and obtain a judgement. Once they do that, they simply apply for a court order of garnishment. If your question is, will they go to the trouble to do all that, the answer is an unqualified yes.

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  • Should Contempt of court or bankruptcy objection be filed on ex chap 13. Won't sign QUit claim deed so I can refinance in my nam

    Was awarded house in divorce. House in ex name only. After divorce ex won't sign quit claim deed so I can refinance in my name. Divorce decree does not state he must sign quit claim deed. He now has filed a chapter 13 bankruptcy and placed hous...

    Matthew’s Answer

    Are you on the mortgage note? More information is needed, I suggest you go back to your divorce attorney and discuss the issue. Most likely, the remedy is a contempt action in family court, you wouldn't necessarily object to the chapter 13 bankruptcy, but you might need to file a motion to lift the automatic stay so the divorce court can issue orders related to the house. The bankruptcy court can't really help you.

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  • If someone cosigned a student loan and the student defaults on the loan, can the lender garnish the wages of the cosigner?

    Lender will not work with student; requires the full monthly payment. Loans taken for school, student not finished with classes, but had to work full time.

    Matthew’s Answer

    Unfortunately yes. For student loans, a co-signer is a "co-borrower;" your liability is equal to that of the primary borrower. Assuming we are talking about a private student loan, the servicer would first need to sue you and obtain a judgment before it can garnish wages, levy bank accounts, etc.

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  • I have become Disabled - I need help handling creditors, some are calling illegally

    I'm in constant pain. Am now on SSDI. I have creditors harassing me & making illegal calls to neighbors & family. I have been attempting to pay what I can & sent letters, so they'd be aware of it. So I haven't been ignoring the situation. Hus...

    Matthew’s Answer

    Speak to a bankruptcy lawyer. Bankruptcy is the only option that eliminates date (short of paying it). There is no special "get of debt free card" for disabled people. The ADA does not protect you from your own obligations. Your choices are the same as anyone else, you can pay the date, you can do nothing and hide your head in the sand, or you can take control of the situation, file bankruptcy, and eliminate the debt.

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  • If a borrower repays two thousand dollars in principal on his federal student loan, will the judge reverse this payment as a

    preference if done within thirty days of filing chapter seven bankruptcy?

    Matthew’s Answer

    Yes, that would be a preferential payment. The trustee could undo it if it was in the best interests of the creditors to do so.

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  • Question..

    I have legal problem have to do with lease and wrongful action that my landlord doing to me and i would like to sue them, and i am looking for a lawyer that could help me

    Matthew’s Answer

    This forum is not a help wanted board. Attorneys here cannot call you even if you ask them too (it is against the rules of professional ethics in CO and violation of the terms of service of this website). If you want to hire an attorney, you need to pick up the phone, call attorneys, and schedule consultations.

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