Filed under: bankruptcy
By: Alan C. Hochheiser, Esq. and John L. Day, Jr., Esq.
The massive federal bailout of Wall Street may contain revisions to the Bankruptcy Code which would permit bankruptcy judges to modify residential mortgages. As we previously reported to you, Congressional Democrats have wanted to allow bankruptcy judges to reduce a debtor’s residential mortgage payments, change an interest rate from variable to fixed, and extend the repayment period to thirty years. This proposal seemed dead for this session, until the federal bailout was announced this past weekend. Now, changes to the bankruptcy code are being included in discussions between the White House and Congressional Democrats, along with the issues of executive pay and allowing the government to take equity positions in the companies it bails out.
In the Senate, Banking Committee chair, Chris Dodd, is offering draft legislation which provides that bankruptcy courts may provide for payment of the mortgage by paying an amount equal to the “allowed secured claim; (ii) for a period that is not longer than 40 years; and (iii) at a rate of interest… at a fixed annual percentage rate, in an amount equal to the most recently published annual yield on conventional mortgages published by the Board of Governors of the Federal Reserve System, as of the applicable time set forth in the rules of the Board, plus a reasonable premium for risk.”
Senate Majority Leader Harry Reid, D-Nev. explained that wealthier homeowners often find it easy to seek mortgage assistance from bankruptcy judges, but that those who aren’t wealthy cannot. “That makes no sense, and we should change it,” he said, by giving bankruptcy courts the authority to “reach mutually beneficial arrangements to allow families to keep their homes and prevent more foreclosures.”
According to FinancialWeek.com, Treasury Secretary Henry Paulson, who proposed the plan over the weekend, has not yielded on two key requests of Democrats: to limit the pay of corporate executives whose firms are being bailed out, and to let bankruptcy judges modify mortgage terms for struggling homeowners.
We will continue to monitor this situation and keep you advised as it progresses.
If you have any questions on this information, please contact Mr. Alan C. Hochheiser, Esq. or John L. Day, Jr., Esq.
Mr. Hochheiser is the managing partner of Bankruptcy with the Real Estate Default Group at Weltman, Weinberg & Reis Co., L.P.A. in Brooklyn Heights, Ohio. Mr. Hochheiser can be reached at (216) 739-5649 or via e-mail at ahochheiser@weltman.com.
Mr. Day is a partner in the Bankruptcy Department of the Real Estate Default Group at Weltman, Weinberg & Reis Co., L.P.A. in Cincinnati, Ohio. Mr. Day can be reached at (513) 723-2206 or via e-mail at jday@weltman.com.
Client Advisory is published by Weltman, Weinberg & Reis Co., L.P.A., an organization providing comprehensive creditor representation. The information contained in this advisory is a summary of legal information and is not intended to constitute legal advice on specific matters or create an attorney-client relationship. Contact any of our offices or visit our website at realestatedefaultgroup.com for more real estate related information, company facts and attorney profiles. ©2008
The following is Client Advisory reprinted with permission from the Weltman, Weinberg & Reis Co., L.P.A.:
Providing Online Accommodations for the Visually Impaired
By: Marsha Makel, Esquire
On August 27, 2008, the National Federation of the Blind and Target agreed to a class action settlement. The class action was filed against Target claiming that Target’s website (www.target.com) was inaccessible to the blind and therefore in violation of the Americans with Disabilities Act (“ADA”) along with two other California State Acts protecting the disabled. This settlement could have major implications for those who provide online services, even if the online services are in addition to other services where accommodations are provided.
In October of 2002, a similar lawsuit was filed against Southwest Airlines in the United States District Court for the Southern District of Florida. Access Now, Inc. v. Southwest Airlines, Co., 227 F. Supp. 2d 1312 (S.D. Fla. 2002). In the Southwest case, Plaintiffs alleged that Southwest’s website, www.southwest.com, “excludes Plaintiffs in violation of the ADA, as the goods and services Southwest offers at its ‘virtual ticket counters’ are inaccessible to blind persons.” Id. at 1314. In determining whether to grant Southwest’s Motion to Dismiss, the court looked at whether southwest.com was a “place of accommodation” as defined by the ADA therefore requiring Southwest to provide accessibility to visually impaired persons. Id. at 1315. The court focused on the definition of “facility” under the ADA which defines facility as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, road, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” Id. at 1318, citing 28 C.F.R. § 36.104. The court determined that “to fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure. To expand the ADA to cover ‘virtual’ spaces would be to create new rights without well-defined standards.” Id. at 1319.
In addition, Plaintiffs in Southwest argued that the court should follow the First Circuit court, which broadly held that “the ADA’s definition of ‘public accommodation’ is not limited to actual physical structures, but includes, inter alia, health-benefit plans.” Id. at 1319, citing Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s Assoc. of New England, 37 F.3d 12, 19 (1st Cir. 1994). However, the Florida District Court cited to the Supreme Court and the Eleventh Circuit which both recognized the Internet as “a unique medium—known to its users as ‘cyberspace’—located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.” Id. at 1321, citing Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232, 1237 n.3 (11th Cir. 2001); Reno v. ACLU, 521 U.S. 844, 851 (1997). Therefore, the Florida District Court concluded that based on the Internet having no physical, concrete space, Plaintiffs failed to establish a nexus between southwest.com and a place of public accommodation and therefore granted Southwest’s Motion to Dismiss. Id. at 1321-1322.
Up until this point in time the Southwest case seemed to offer protection against ADA claims for online services. However, the recent Target case has now reversed that mindset and companies need to re-evaluate their online services and accommodations for disabled persons.
In 2006, Target filed a Motion to Dismiss the ADA class action. Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006). Target filed its motion claiming that Plaintiffs failed to state a claim because the ADA only covers “physical” spaces. Target relied on the Southwest case to support their argument. However, the court stated “the challenged service here [target.com] is heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores.” Id. at 955. The court stated that the ADA applied “to the services of a place of public accommodation, not services in a place of public accommodation.” Id. at 953, citing 42 U.S.C. § 12182(a).
Although Target’s Motion to Dismiss was granted in part, the overall discussion by the court of the application to the ADA to online services weighed in favor of the Plaintiffs. Accordingly, Target settled this matter by agreeing to pay $6 million in damages along with making its website fully accessible to visually impaired customers.
The Target settlement and focus on this case creates the need for companies to re-examine their own websites. Even though the case law on the issue of web accessibility is still not clear, as the Internet continues to become fully integrated into our society there poses a greater risk of not taking the appropriate measures to ensure accommodations for the disabled. The ADA covers a wide spectrum in its definition of “public accommodation”. See 42 U.S.C. § 12181(7). Therefore, if your company uses its website to provide some type of service to the public, such as online banking or online payments, it would be in your best interest to see what programs exist to accommodate the visually impaired who access your website. The Southwest case provided a link with guidelines of how to make web content accessible to people with disabilities. See http://www.w3.org/WAI/about.html. This website may provide a starting point in determining what is required to make your website accessible. In addition, the National Federation of the Blind has a Nonvisual Accessibility Certification program that can help guide you. See http://www.nfb.org/nfb/certification_criteria.asp.
If you have any questions on this information, please contact Ms. Marsha D. Makel, Esq. Ms. Makel is an associate in the Compliance Department of Weltman, Weinberg & Reis Co., L.P.A. in Columbus, Ohio. The firm handles creditors’ rights issues and related litigation throughout Indiana, Ohio, Kentucky, Illinois, New Jersey, Pennsylvania and Michigan. Ms. Makel can be reached at (614) 857-4413 or via e-mail at mmakel@weltman.com.
Client Advisory is published by Weltman, Weinberg & Reis Co., L.P.A., an organization providing comprehensive creditor representation. The information contained in this advisory is a summary of legal information and is not intended to constitute legal advice on specific matters or create an attorney-client relationship. Contact any of our offices or visit our website at www.weltman.com for more information, company facts and attorney profiles. ©2008
Filed under: Fraud Prevention, YouTube, credit unions, video | Tags: "credit union", financial institution, Fraud Prevention, mule
I’ve been wanting to shoot this short video for more than a year. Today, I finally got the chance.
The following is an article reprinted with permission from the upcoming Summer 2008 edition of The WWR Letter:
Significant Changes to Garnishment Proceedings in Ohio- Senate Bill 281 Becomes Law on September 30, 2008
By: Joe DeGiorgio, Esquire
On June 27, 2008, Ohio Governor Ted Strickland signed Ohio Senate Bill 281 (“SB 281”), which will become law in Ohio on September 30, 2008. SB 281 amends a total of seven sections of the Ohio Revised Code, but the primary effect of the new law is to amend those sections of the Revised Code that govern what property is subject to – and exempt from – garnishment by creditors. SB 281, therefore, is particularly relevant to (and will have far-reaching effects on) all debt collection activity throughout the state.
SB 281’s most important provisions relate to two distinct areas of Ohio garnishment procedure; it amends both the dollar amounts of property that may be held exempt, and it amends the procedure whereby creditors may garnish individuals’ property. This article discusses some of the more remarkable provisions of the bill.
Exemption Amounts
Probably most notably, SB 281 amends § 2329.66 of the Revised Code to increase the dollar amounts of various categories of property, both real and personal, that any debtor (domiciled in Ohio) may hold exempt from execution and garnishment. While SB 281 does not create new exemptions – current law allows debtors to hold certain property exempt – the new law does significantly increase the dollar amounts of nearly all the already-existing exemptions. Some of the most significant changes to those amounts are as follows:
Property, used as residence: $5,000 (under current law), $20,200 (under SB 281)
Motor Vehicle (one): $1,000 (under current law), $3,225 (under SB 281)
Money received (or any right to receive money) in the past 12 months as payment for personal bodily injury (excluding pain and suffering): $5,000 (under current law), $20,200 (under SB 281)
Personal, family and household items: Specific dollar amounts for various individual property interests; $200 for one item of wearing apparel, beds, and bedding; $300 in one refrigerator; $400 for one item of jewelry and no more than $200 in every other item of jewelry (under current law); A more broadly-defined exemption category, with an aggregate dollar amount of $10,775 for most items, and $1,350 for jewelry held primarily for personal, family or household use (under SB 281)
“Other property” ***applicable only in bankruptcy proceedings: $400 in any property (under current law), $1,075 (under SB 281)
As noted above, the exemption for “other property” applies only to bankruptcy proceedings; it is inapplicable to the collection of debt from individuals and entities not involved in bankruptcy proceedings.
Garnishment Procedure
In addition to the above changes related to the dollar amounts of exempt property, SB 281 also alters the procedure that creditors must follow in order to garnish the property of a debtor.
Garnishment of Property Other than Personal Earnings
Garnishment of debtors’ property other than personal earnings is usually relevant when a creditor attempts to garnish funds held by debtors on deposit at financial institutions. A debtor’s bank account can, of course, be lawfully garnished – subject to the limitations and restrictions of the law – in order to satisfy a legal judgment. SB 281 alters the provisions of the Revised Code that govern the garnishment of property other than debtors’ personal earnings.
Most notably, SB 281 adds language to the law that shields garnishees from liability when a garnishee acts in good faith in carrying out the garnishment of property other than personal earnings. Specifically, SB 281 adds the following language to the law:
Any garnishee that garnishes the property, other than personal earnings, of a judgment debtor in good faith reliance upon the order and notice of garnishment received by ordinary or regular mail service shall not be liable for damages in any civil action. RC 2716.13(B).
Unlike the current state of the law, after September 30, 2008 garnishees will no longer be subject to civil liability, so long as garnishees act in good faith reliance on the order and notice of garnishment they receive
Garnishment of Personal Earnings
Under both current law and SB 281, all creditors wishing to garnish debtors’ personal earnings must first serve a written demand letter containing specific language. SB 281 makes changes to the required language contained within that required written demand. Currently, the demand must state that demand is made for the amount of the judgment over the amount of personal earnings that are exempt from garnishment. SB 281 makes a slight but significant change; it requires that the demand be made for the amount of the judgment owed over the amount of personal earnings that may be exempt from garnishment.
SB 281 also changes the required language for orders of garnishment that are sent to employers of judgment debtors (garnishees). Prior to September 30, 2008, the order must contain an affidavit stating that the garnishee owes the debtor money for personal earnings; the new law requires that the order state that the garnishee may owe the debtor money for personal earnings.
On September 30, 2008, when SB 281’s provisions go into effect, the law related to garnishment of property belonging to debtors domiciled in Ohio will change. While the day-to-day operations of your particular entity may not be drastically altered, all WWR clients should take note of the changes and, when applicable, ensure compliance with the new law’s terms.
Joseph D. DeGiorgio is an Associate in the Collection Services department of the Grove City office. He can be reached at (614) 801-2668 or jdegiorgio@weltman.com.
