Monday, July 16, 2018

Bankruptcy and Student Loans

It is hard to get a discharge of student loans in bankruptcy.  Most attorneys think it can’t be done. That’s because the standard is high, and most do not qualify.  Here’s how the Gouner Law Office has obtained discharge of student loans for our clients: 

In order to discharge your student loans in either a Chapter 7 or Chapter 13 bankruptcy, you must begin an adversary proceeding requesting a determination of undue hardship which is separate (but connected) to your bankruptcy case. You can do this even if you already filed for bankruptcy, by reopening your case and requesting this determination. The heightened Brunnerstandard*, which has been adopted in every federal court of appeal other than the First (in which we lie) and Eighth Circuits, requires the following to be proven:

  1. The Debtor cannot maintain a “minimal” standard of living for the debtor and their dependents, based on their current income and expenses, if they were forced to repay the student loans.
  2. Additional circumstances exist which indicate that this state of affairs is likely to persist for a significant portion of the student loan repayment period.
  3. The debtor has made good faith efforts to repay the student loans.

If you successfully prove “undue hardship,” your student loans will be completely forgiven. But, even if you cannot meet the heightened Brunnerstandard to discharge your student loans, a bankruptcy can still be helpful. 

As in all bankruptcy proceedings, an automatic stay is placed into effect as soon as the case is filed. This protects you from annoying, harassing calls and communications from creditors. This also includes collection efforts from student loan companies. During your Chapter 7 bankruptcy, your student loan creditors must leave you alone until your case is resolved or until the creditor goes through the lengthy steps of lifting the automatic stay to start collecting again. Either way, by filing a Chapter 7 bankruptcy, you will get some relief from the constant communications from your creditors. 

Filing a Chapter 13 bankruptcy to give you relief from your student loan debt can be even more helpful. Within a Chapter 13 bankruptcy, you are put into a reorganization plan. Your plan will likely include your student loan debt, so you are making payments on your loans while in the bankruptcy. Your Chapter 13 plan, NOT your student loan servicer, will determine the amount and ability you have to pay your student loans in that five (5) year period. As in a Chapter 7, you will have a reprieve from the harassing collection efforts while you are in your Chapter 13 bankruptcy. There are judges in some districts which allow debtors to give priority to their student loan debt during their Chapter 13 plan, and repay them over other creditors. 

Regardless of whether or not you are able to prove “undue hardship” and completely discharge your student loan debt, a bankruptcy (Chapter 7 or Chapter 13), can still be helpful for you. At the Gouner Law Office, we understand how hard it is to endure the daily harassment from your creditors, and by filing a bankruptcy, you will get the relief you deserve to get back on your feet to start fresh. 

*(Brunner v. New York State Higher Educ. Servs. Corp., 831 F. 2d 395 (2d Cir. 1987)

Written By: Alyssa Collera-Wineski 

May we help you with a legal situation? To schedule a private consultation, call the Gouner Law Office at (225) 293-6200 or toll free (800) 404-1921. You can also fill out our contact form.

Why Contact An Attorney After Your Car Accident

Insurance companies will insist you do not need to involve an attorney following a car crash. They will also tell you they will be able to assist you through the settlement process in a quick and easy way. The insurance company does want to help you quickly settle your claim, but is that the best thing for you?
For one thing, you may not realize you have been injured until a few days after the accident. If you settle a claim with the “at fault” insurance company too quickly, you may waive your right to have future related treatment for your injuries covered. Insurance companies will try to wave a settlement check in front on you early on, in an effort to get you to settle your claim with minimal treatment. 
Another issue that frequently comes up in car crashes is that insurance companies generally look for a way to put liability on both parties in a wreck. The insurance company may try to tell you that you have some negligence, or fault, in the accident, even if you are the one who was hit. Hiring an attorney early in your case will give your lawyer a chance to argue your case with the insurance company and ensure you get the full amount of the settlement you deserve.
Hiring an attorney to represent you following an accident will help ensure your case is being handled in a timely manner, investigated properly and settled fairly--only after you have completed your treatment and are fully comfortable with settlement. In the event of lengthy treatment or issues with the liability decision of the insurance company, your attorney can file suit to extend the life of your case and preserve your right to collect for your injuries, as well as your pain and suffering.
Don’t get pushed into an early or partial settlement by insurance companies following an accident. Call the Gouner Law Office for representation.
Written By: Katherine Gouner

May we help you with a legal situation? To schedule a private consultation, call the Gouner Law Office at (225) 293-6200 or toll free (800) 404-1921. You can also fill out our contact form.

Shoplifting Letters

When someone is caught shoplifting, getting arrested and charged with a crime is only part of what happens.  About a month or so after the arrest--and almost always before the first court date--a letter demanding money is usually sent from one of a handful of out-of-state law firms or collection companies.  The letter is ambiguously worded, and most people interpret it to mean that if they pay the money, no prosecution will happen.

Nothing could be further from the truth.  Most states, including Louisiana, allow stores to collect a civil penalty from people caught shoplifting to cover the cost of their security.  The letter is a carefully worded request for cash (usually around $500 to $800) representing a prorated percentage of the annual store cost of equipment and personnel.

If you read the letter a few times, however, you will realize the store is not actually promising to do anything in exchange for the money.  In 25 years, no prosecutor I have seen has ever demanded a criminal defendant pay a store for these costs.  This is just free money the store is demanding. 

Year after year, I tell people not to pay this money.  Most of the time, they pay it anyway, hoping it will somehow make a difference.  Either way, the store will still prosecute.  No leniency will be shown for paying the extortion.  I have never seen any of these stores ever file suit to try to collect the statutory penalty.

Whatever you do, resist handing money to the store, unless there is a written deal in place to drop the prosecution and the local DA has signed off on it. If you or someone you know has been charged with shoplifting, please call the Gouner Law Office.  

Written By: Greg Gouner

May we help you with a legal situation? To schedule a private consultation, call the Gouner Law Office at (225) 293-6200 or toll free (800) 404-1921. You can also fill out our contact form.

Monday, May 21, 2018

Camera Tickets

I have addressed this before, but we still get a lot of calls about camera tickets.  People ask if they should pay the citation or go to trial.  Louisiana does not suspend drivers’ licenses or take any other action against alleged violators other than referring them out for collection. This means there is no real penalty for ignoring the ticket at present.

I included a link below about what is happening in other states.  In Illinois, Chicago is so aggressive with their red light program people are having to file for bankruptcy to get out from under fines.  It looks like other states are much more aggressive with their collection efforts and taking drivers licenses.  We have filed a number of bankruptcies for people who had penalties at the DMV that were too high to pay so they had to go the bankruptcy route.  That is something we do not see much of in the state.

Under our new governor, the DMV will now accept payment plans and has made it easier for people to get their licenses back.  The way things stand  it is hard for me to recommend for anybody to take a day off from work to fight a camera ticket, when there are really no consequences from ignoring it.

The only exception I know about is the City of New Orleans.  They have a fleet of camera equipped trucks roaming around automatically checking license plates for people that have tickets within their city limits.  They pay particular attention to the area around the courthouse.  But if your car is not marked on the street, they are not known to check parking lots or other private parking areas.  If they find you, they will boot your car and get a cash payment before releasing it.

There is always the chance that places like Baton Rouge will step up their collection efforts.  The fines, however, are treated as civil penalties.  This means the city or town where you get the ticket does not really have much recourse.  It is not practical to sue each individual motorist for the $200 or $300 fine.  You may get a few letters, but that is about as far as it is likely to go.  No one has reported to me that the amount has been sent to the credit bureau.

There really is not a one-size-fits-all answer to the question. If you tend to worry, maybe you should pay the ticket or show up in court.  There is always some risk in ignoring a so-called official notice. Speaking just for myself, I would not voluntarily pay one of these fines for the time being.

Written by: Greg Gouner

May we help you with a legal situation? To schedule a private consultation, call the Gouner Law Office at (225) 293-6200 or toll free (800) 404-1921. You can also fill out our contact form.

Jury Reform in Louisiana

It appears there is a pretty good chance Louisiana will reform its jury law to match most of the country.  Louisiana, like a handful of other states, requires 10 of 12 people to convict for serious crimes.  Most states require a unanimous verdict.  

If things go as expected, voters will decide whether or not to allow split jury decisions for convictions or require all the jurors agree.  As a practicing attorney, I usually recommend my clients take a jury over a bench or judge trial.  You never know what will happen when picking the jury.  To some extent, who winds up on your jury is somewhat the luck of the draw.  Despite that, I find the jurors usually do a better job understanding the situation than most judges.

A problem with judge trials is the judges have seen everything and heard everything.  As a result, they often have their minds more made up than a group of jurors who are coming to the case fresh. I am hoping Louisiana voters will get the opportunity to decide on a new system.

For more information, take a look at the article below. 

Written by: Greg Gouner

May we help you with a legal situation? To schedule a private consultation, call the Gouner Law Office at (225) 293-6200 or toll free (800) 404-1921. You can also fill out our contact form.

PI/Uninsured Motorists Insurance

We handle a lot of auto accidents and car wrecks.  It is always a tragedy to see someone hurt with no chance of getting the financial help to make it right. The insurance industry says nearly 1/3 of Louisiana drivers are uninsured.  If you do not have uninsured motorist coverage, it is something to consider. Usually, it does not add much cost to your policy.  If you have a car with payments, your bank or lender will require you to have collision coverage.  That protects the vehicle, if you are in a wreck with someone without insurance.  It does not protect you.

UM or uninsured motorist coverage applies when the other driver does not have enough insurance to cover the wreck or no insurance at all.  People tell us all the time, “If the other driver does not have enough insurance, I’ll just sue!” That does not do much good.  If they do not have insurance, it usually means they cannot afford the premium.  Getting a judgment against someone with no job and no assets really does little good.  Unless they win the lottery or fall into a large inheritance, you cannot do much more with the judgment other than put a frame around it and hang it on a wall.

Another good thing with UM coverage is the insurance company cannot raise your rates for making a claim.  Because the wreck was not your fault, under state law, the insurance company is not allowed to drop you or otherwise penalize you for making a claim. If you do not have UM coverage, please at least think about.

Written by: Greg Gouner

May we help you with a legal situation? To schedule a private consultation, call the Gouner Law Office at (225) 293-6200 or toll free (800) 404-1921. You can also fill out our contact form.

Monday, March 19, 2018

Why You Should Hire An Attorney Immediately After A Crash

The other car went through the stop sign and crashed into you, damaging your car and injuring you and your passengers. The insurance companies will all tell you that you do not need the assistance of an attorney to get your claim handled and settled. Enlisting the help of a personal injury attorney as soon as possible after your accident, however, will help the process run more smoothly and get you the settlement you deserve.
The insurance company wants to catch you off guard and ask you numerous questions about the accident. That’s because they are looking for a way to put fault on each of the drivers. They want you to say the wrong thing on a recorded statement or have you admit there was something you could have done to avoid the accident. If you allow them, they will even get in to your medical history. What should you do?

Seek Medical Attention
In some instances, because of the adrenaline and shock of an accident, people are unaware they were injured until the day after the crash. This means medical treatment is often refused at the scene, but by the next day, drivers and passengers may start to feel their injuries. Additionally, you have a year to get your claim settled in Louisiana. Not all injuries are fully healed in a year’s time, so the sooner you begin your treatment, the sooner you can start feeling better again.

Hire an Attorney
An attorney will deal with the injury portion of your claim, speaking directly to the insurance representatives on your behalf and providing them with the information they need. If your medical treatment is ongoing as the one-year mark approaches, an attorney will file suit to extend the statute of limitations and give you more time to receive necessary treatments.
At the Gouner Law Office, we will assist you with the insurance company.  We will get the bills and records needed to accurately evaluate your claim. (Without an attorney, you will be the one collecting this material and providing it to the insurance company.) We will also evaluate your case, keep you in the loop about the “back and forth” in the negotiation, and get you top dollar for your injuries.  Once the settlement is agreed upon and the paperwork signed, you will receive your settlement without the hassle of having to deal with an insurance adjuster, repeatedly calling and asking questions. 

The best part is--we only charge a fee if there is a recovery. Since attorney settlements are usually 40% to 60% higher than those for unrepresented people, there is nothing to lose.

Written by: Katherine Gouner

May we help you with a legal situation? To schedule a private consultation, call the Gouner Law Office at (225) 293-6200 or toll free (800) 404-1921. You can also fill out our contact form.