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Matthew Scott Berkus

Matthew Berkus’s Answers

6,573 total


  • Will I recieve foreclosure overbid funds if any?

    Chapter 7 Bankruptcy discharged in 07.2015, the property in question was included. Arrears of $115,000. BOA took the FHA default claim, transferred the property to new servicer. Rushmore Loan Management. House is now scheduled for Foreclosure S...

    Matthew’s Answer

    In theory, you would receive any amount that exceeds the balance owed, but it almost never happens. One of the the legal mechanism is the homestead exemption. You are entitled to exempt the equity (assuming we are talking about your primary residence). Equity is the amount over and above the balance due on ALL encumbrances against the property. If the property really had equity where you might end up in an overbid situation, you would (should) have sold the property. I wouldn't count on there being any over bid.

    The other wrinkle, if there is a significant amount due to you resulting from the over bid, the bankruptcy trustee may take an interest in that and reopen the case to grab it. Then you would have a legal fight on your hand as to whether the money belongs to you or the bankruptcy estate.

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  • How many times can i have my collections employee call someone in 1 day(per day) to collect a debt?

    we have a customer who forgot to pay their bills/ is delinquent, and we decided to call to collect. i have an employee hired specifically for that. we received a complaint (as one would expect) however i would like to know how many times can we le...

    Matthew’s Answer

    If you are collecting on your own behalf (the money is owed to you/your company from a customer) then the FDCPA does not apply. CA has its own version, but I don't know off hand whether they extend their version to original creditors. Assuming you are the original creditor, the TCPA would not likely apply, TCPA is more about cold calling and the use of automated and database driving calling. If you are trying to collect from a customer, neither of those laws would apply to you. You should check with CA counsel as to whether the CA version of the FDCPA applies to original creditors, but the Federal version nor the TCPA would apply to you if you are trying to collect from a customer.

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  • Bankruptcy and adversary hearing

    what's the procedure to file an adversary hearing? Do i file at same time as i turn in bankruptcy papers? Student loans being wiped in chapter 7 is really difficult but if i don't make an effort im not going to know. Its my understanding that the...

    Matthew’s Answer

    The ability to discharge student loans requires that the debtor's bankruptcy discharge occur, but you can file the adversary complaint during the bankruptcy (and it is common to do so). I don't know that I would file it the same day as you file your bankruptcy. It sounds like you are doing this without an attorney, so you may want to get through the 341 meeting creditors before filing the Adversary Case to make sure no unforeseen issues arise in the underlying BK.

    I applaud you for trying to discharge your student loans and yes, you MUST file the adversary case to do so. However, understand that the AP is a lawsuit. Everything that goes along with the lawsuit you need to do, such as discovery, prepare exhibits and witnesses, and have a trial. An AP actually concludes with a "trial," not a hearing. It is not like you are going to go before the judge, speak for 10 minutes, and that is that. The main witness will be you, you will be sworn and have to testify and then cross examined by the other side. This all assumes you can even make it to trial. If the student loans in question are federal, or mostly federal, the odds of discharge are remote. Reason being is that with the various payment programs (Pay as Go, Income Based, Income Contingent, etc.), if your income is low enough, you can have a $0 monthly payment. Difficult to argue that a payment that is no more than 10% of your income and that can potentially be $0 per month (and the loans are forgiven after 20, 25 years) causes an undue hardship. Now, if the loans are private student loans, knock yourself out and go for it.

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  • Is Destroying All Documents a Normal part of a settlement agreement?

    In an Invasion of Privacy case that is under an Impoundment order, one of the plaintiffs' settlement terms is "[Defendant]will destroy all paper and electronic copies of pleadings or other documents received in connection with this lawsui...

    Matthew’s Answer

    As Michael points out, such term (destroy everything) is not normal, but it is a settlement agreement. You can try to negotiate that term out of the agreement, if they won't do it, then you have a choice, to settle or not settle. Settlement is a negotiation. In the big picture, once you settle, that ends the case, so they could flip around on you in the negotiation...i.e. if you intend to really settle matter, then there should be no problem destroying the material, right?

    Generally, attorneys are allowed to advocate for their clients and take their client's position at face value. The standard is pretty high for this sort of thing...suspicion is not enough...the attorney must "know" and by continuing in the case, the attorney would be actively participating in a fraud or committing some other crime. Most attorneys, for better or worse, are smart enough to know only what they need to know for the case.

    Also, all we have here is your accusation that the "entire" case is built on perjury. If that were true, then why are you even discussing settlement? You should be winning the case.

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  • Do I have to sign a reaffirmation Agreement in Chapter 7 bankruptcy?

    If I don't what will happen?

    Matthew’s Answer

    Reaffirmations agreements are never "required" by law. As for "what will happen" if you don't sign one depends on the context of the situation. If we are talking about a vehicle loan, then in most states, if you don't sign the reaff, the car lender has the "option" to repossess the vehicle (even if you are current on payments). Some lenders (particularly credit unions) will repossess the car, but many won't.

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  • What kind a lawyer do I need to sue an attorney for ambulance chasing practice in Texas?

    Me and my father are thinking of suing my 91 year mother's attorney for ambulance chasing. She was contacted by the attorney's runner later that day and convinced her to sign papers after a car accident. Her attorney has not done anything besides ...

    Matthew’s Answer

    I am sorry this happened, but I don't see a viable case against the attorney, at least not in the civil context. Reason being, there doesn't appear to be any damages. The executor of the estate or personal representative can cancel the agreement with the law firm. Odds are, the case was taken on the contingency (no money upfront) and your mother probably has a viable claim of some kind; so, it is not clear how she has been legally harmed by the actions of the attorney.

    Your mother (in this case, the mother's estate) may have a viable case related to the car accident, especially if there is a link between the accident and her death. That may be worth something.

    I don't know TX ethical rules regarding this type of soliciting, but at most, you file a grievance with TX attorney regulation, they will either do something about it or they won't. Beyond that, I don't really see what you would sue over in a civil suit.

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  • In Colorado, if a claim is dismissed iwth prejudice in federal court due to statute of limitations

    could the same claim be brought up in another state's federal court? Or would res judicata apply? Thanks.

    Matthew’s Answer

    The "court" is not the issue...to answer your question, we need to know the nature of the claim. All things being equal, assuming the claim in question is a "federal claim" (based on federal law), if the statute of limitations has expired, it has expired. It doesn't matter in which court your bring the case, it is the type of claim (and the legal basis for that claim) that determines the statute of limitations.

    On a side note, if jurisdiction was proper in the Federal District of Colorado, it is unlikely that another Federal District (i.e. a different state) would be able to take jurisdiction of the case.

    Beyond that, it would be an exceedingly rare set of circumstances such that you would be able to forum shop the case after it being dismissed with prejudice in federal court and find a court that can both exercise jurisdiction over the claim and parties and where the statute of limitations would, somehow, not have expired.

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  • Is it illegal to upload this online?

    I have a recording of a working professional --for example an accountant, lawyer, or doctor-- who I believe spoke to me inappropriately over the phone --when I say inappropriately, I mean to say the person spoke with hostility, arrogance, no tact,...

    Matthew’s Answer

    Surely you have better things to do with your life.

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  • Can I get student loans erased due to being misled about my eligibility to work in the field I trained for?

    In 2007 I went to a Lincoln tech recruiter wanting to change my life. I made some mistakes in my younger years and was looking to get a job. I informed the recruiter about my criminal record. The recruiter told me that I would be able to get a j...

    Matthew’s Answer

    First, are the student loans in question federal student loans or private student loans. If the loans are private student loans, you would have to sue the school and prove fraud (intentional fraud). The main problem with that course of action is that you are almost certainly well past the statute of limitations to bring such claims. If the loans are federal student loans, there is a process called the "failure to benefit" discharge. However, the grounds to get that type of discharge are very specific and narrow. Inability to "get" a job is not one of the factors.

    You have 2 major problems with your case. The first, it has been a while since you left school, nearly 8+ years, may be too little too late to raise the issue at this point. Second, eligibility to work in the field and being eligible for specific employers are very different things. If under state law, your criminal background does not prevent you from doing the job (to getting a license, or whatever), then the school has met its obligation and was technically correct. The LAW doesn't prevent you from pursuing a particular career. Now, the school doesn't control the job marketplace. If particular employers won't hire you because of the criminal background, that is an issue with the employers, not the school. You would need to prove that the criminal record thing is "universal" in your state and that the school knew that ALL employers in your chosen profession would not hire you (and even then, that is a fairly weak case).

    You should get with a local student loan attorney to review your options, but I fear you have none.

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