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Matthew Scott Berkus

Matthew Berkus’s Answers

7,962 total


  • If I'm filing for divorce and bankruptcy, which should I file first?

    Married 20 years, I have no option but to file bankruptcy, and I'm pretty sure he will file as well if it isn't done jointly prior to the divorce. Does it matter if I divorce him first, and file bankruptcy on my own?

    Matthew’s Answer

    It depends on the circumstances. In the grand scheme of things, it doesn't usually matter. The question of BK before or after divorce turns on which creates the most advantages situation. Here are my rules of thumb.

    1. File BK BEFORE divorce if the marital estate is insolvent. Meaning, if the estate is primarily riddled with debt, it is usually better (if possible) to do a joint BK while still married, and then divorce. It makes the divorce cleaner and the separation easier.

    2. File BK AFTER divorce if the marital estate is largely solvent. Meaning, the estate has assets and those assets would be at risk in a BK or to existing creditors. In that scenario, it is generally better to divorce first, divide the assets, and then file BK after the divorce.

    Of course, there are many more factors that must be considered (income, eligibility etc).

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  • Will the Age Discrimination Act of 1975 support a claim of age discrimination by public high school senior athletes?

    Will the Age Discrimination Act of 1975 support a claim of age discrimination by public high school senior athletes who believe their coach prevented them from fully participating in their sport to instead develop freshman and sophomore players? ...

    Matthew’s Answer

    I will preface this by saying, I doubt you have a claim, but not because of your age (Stephen is referencing the "employment law" version of age discrimination). But, you have some threshold issues you have to deal with. (1) does the school (and does the program), receive federal funds. If no, then you have no claim; you cannot sue under that act if the program does not receive federal funds. (2) You have to exhaust all administrative remedies before you can sue. You must first file a complaint with the Office of Civil Rights (OCR).

    As to the merits of your claim, they are very weak. There is no structural discrimination. You have coach weighing various factors in making decisions about whom to play. Those decisions are well within the discretion of the coach. You will be hard pressed to have federal agency come in and 2nd guess the discretionary decisions of a coach. There is no RULE that seniors must be allowed to play or that the best players must be played.

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  • How well does the "MERS assignments are ineffective" argument hold up in US BK court in Florida?

    The case is In re Agard, 10-77338, U.S. Bankruptcy Court, Eastern District of New York where a Judge ruled MERS lacks right to transfer mortgages. The original circumstances are identical to mine (Original lender First Franklin, MERS 2008 assignm...

    Matthew’s Answer

    It would be helpful to know what, specifically, you are trying to accomplish with the AP. What is the goal?

    I can't speak to FL specifically, but the general trend is that courts are NOT following these cases, in the sense that they are not going to look to closely at the issue. Unless you are litigating a foreclosure that occurred around 2008-2010, most courts around the country will not entertain this issue so long as there is "some" evidence presented that the foreclosing entity has the right to do so. The issue is evidentiary, not legal. That is a much harder issue to attack (and to appeal) because appellate courts give nearly unlimited discretion to lower courts on questions of facts and evidence. The burden of proof is still only "preponderance of the evidence." They simply need to show that it is more likely than not that they have the standing to foreclose.

    At this point, most courts take the view that issues with assignment do not affect the entity's right to foreclose, it affects who gets the property and money...that issue has nothing to do with the borrower (debtor).

    Look, if you have an attorney on the ground, that knows local law (and FL is more forgiving on these issues than most states), then you should listen to that attorney or get an opinion from another local attorney with similar expertise.

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  • Did medical malpractice occur when my daughter's MD failed to recognize serotonin toxicity as the source of her panic disorder?

    My teenage daughter developed a sudden & extreme panic disorder her freshman year of hs. We were told by the ER, a psychiatrist and LCSW that it was the most common time for girls to develop it. The psychiatrist prescribed an anti-anxiety med. Her...

    Matthew’s Answer

    Broadly speaking, there are 2 aspects to every civil lawsuit, (1) liability and (2) damages. You have to have both. Eliot is speaking to liability. The idea being is that did what the Dr. do fall below the reasonable standard of care (was it a careless mistake) and did the Dr.'s action cause the harm? The next item is damages? What harm occurred that can be recompensed with money. Three months is not a very long time, the issue did get discovered and is presumably being remedied. The situation seems like the MedMal equivalent of someone hitting a parked car while parallel parking. You have some body damage, you make an insurance claim and that is about the end of it.

    You need to speak with a medical malpractice attorney to find out for sure if you have a viable claim.

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  • Can I sue for been given to much pain meds after having surgery

    I had major spine surgery and the next evening or early morning a nurse found me not breathing unresopnsive and blue. I remember waking up in the I.C.U. And the surgeon telling me he thought I would've been able to handle all the pain meds since ...

    Matthew’s Answer

    Not all mistakes are actionable. For liability, you would need to prove the mistake was made as a result of carelessness, and given the situation you describe, that may be pretty hard to do. You can't sue over good-faith mistakes. Unless you have some lingering effects from the episode that are causing problems, I doubt you have much of claim (you still need to have provable and meaningful damages).

    No harm in consulting with a medical malpractice attorney and get an expert's opinion after hearing all the facts.

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  • Can Police do this?

    I went into a police station today simply to report an incident where a woman was physically and verbally abusing her young baby (aprox 1-2 years of age) however the officer seemed as if he was in a really bad mood and didn't really want to do muc...

    Matthew’s Answer

    It's not like the file is public record at this point. So, I don't think you have any reason to really worry about it. Like the others have commented, I wouldn't suppose this is common practice, but I can see why they would do it. The officer to whom you gave the report is not going to be the one investigating, so the photo is simply in their to allow the investigating officer to know he or she is speaking to the right person if they contact you.

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  • How can I get mortgage loan in my name only, reflecting only my ownership, as I am co-borrower on a discharged Timeshare loan?

    My husband filed bankruptcy and timeshare debt was discharged; however, I wanted to keep timeshare and have continued mortgage payments and assessments but have not been privy to any financial info/state -ments or billings since discharge.

    Matthew’s Answer

    As Ms. Lieber points out, there is no legal mechanism to force a lender to put a loan only in one or the other co borrower's name. You can try to negotiate it, but they probably won't do it. Typically, you would apply to refinance the loan (through a different lender) and try to qualify on your own.

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  • Can the IRS take money out of your Disability check?

    I keep getting a call from a person saying I owe Federal and State taxes. If I don't pay there will be a warrant for my arrest. I have been disabled since 2009.

    Matthew’s Answer

    It is unlikely that the person calling you is a tax agent. More likely it is a solicitor from a tax representation firm (or an outright scam), there is no agency that collects both federal and state tax. However, if it is a solicitor, the reason they know you owe tax is because a tax lien has been filed. That is something you can look up on your own. Or better yet, pick up the phone and call the IRS. (http://www.irs.gov).

    To your question, the IRS can garnish social security disability. They would only do so as a way to get your attention. Instead of waiting around and living in uncertainty, call the IRS, find out if you owe anything, and then request non-collectable status.

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  • Can I sue a college?

    I was about 20 years ago that couldn't graduate because I didn't have enough externship hours. I went last week to register for school and finish the class only to be told I had already graduated from those classes. Apparently my records got mixed...

    Matthew’s Answer

    I am hard pressed to think of any case you would have against the school. Sorry. Also, in the civil arena, it is virtually impossible to sue over any event that happened 20 years ago. And, the practical issue is cost. Candidly, if you really wanted a lawyer to sit down, do the research, and figure out if there is any basis to sue, that alone would likely cost about $5,000 and the likely result is that attorney would tell you that you have no case to bring. Lastly, we haven't even come to the issue of proving damages and whether you really have damages. Damages would be highly speculative.

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  • Can my school withhold my high school diploma from me?

    My school is refusing to give me my high school diploma and a copy of my official transcript because they found my graduation speech to be offensive. It was never my malicious intent to offend anybody, and I didn't say any foul words in my speech....

    Matthew’s Answer

    Yes they can. If you violated a school rule (even if you don't think you did), one of the potential remedies is withholding of the transcript and diploma (for better or worse, that is one way to keep seniors more in line in the closing weeks of their last semester).

    As you transition to adulthood, you will soon learn that you need to pick your battles. In the grand scheme of things, this is not a battle to fight. Heck, you won't even care a year from now.

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