Category Archives: Uncategorized

Why Can’t Student Loans be Included in Bankruptcy?

People often ask me why student loans can’t be included in bankruptcy, when it is painfully obvious that the debtor is unable to pay the loan, either due to health issues, unemployment, or low salary. The only reason is: the United States Congress.

Many people do not realize that student loans were fully dischargeable in bankruptcy through the 1980s. Ironically, no one was suffering from unpayable student loans in the 1980s for the precise reason that leaders in banking and higher education knew better than to charge too much, because loans were not guaranteed by the government. College was cheaper back then for a reason, now the sky is the limit.

To this day, people can even put old tax debts into a bankruptcy, but not student loans. This is ironic considering the fact that to owe taxes, a person must once have had an income from which the tax debt was derived, while a person with student loans may never have had the income they thought they’d achieve at the time the loan was made, typically when they were young and inexperienced.

Since the United States Congress is responsible for making student loans impossible to discharge in bankruptcy, the only way to fix the problem is to contact one’s senators and U.S. representative and demand that the law be changed again to put student loans BACK into bankruptcy.

It’s easy to e-mail one’s senator or congress person. Just google “current [name of U.S. state] senators” and their websites will appear. To contact one’s U.S. representative, just go to the U.S. House of Representatives website and input one’s zip code. Just as with the senators, one may e-mail U.S. representatives directly through their websites.

DUI stop in Florida…Agree to breath sample? Road side sobriety exercises?

For many people it is a nightmare come true: stopped by the police on the way home and arrested for driving under the influence.

In cases where there is an accident, or where a person is obviously completely drunk, there is often little doubt regarding an eventual outcome: mandatory DUI penalties as set out by the Florida Legislature. These may include probation, community service, fines, court costs, a driver’s license suspension, vehicle impoundment, driving courses, and so forth. Depending on the severity of the facts, some people may be sentenced to county jail.

The bottom line is that any evidence that will indicate that a person is impaired will be used against them. An admission of prescription drug use will be used against a person. Driving under the influence often occurs in Florida when people are intoxicated by their own medications.

If a person refuses to provide a breath sample, they will typically lose their license for 12 months. The fact that they refused to provide a breath sample can be mentioned in court. However, some people do not trust the calibration of the breath testing equipment. When a person has previously been arrested for DUI and refused a breath test, and subsequently is arrested again and refuses a second time, they can be charged with a crime: Second Time Refusal to Provide a Breath Sample. So the option to refuse, if used, is not really available again.

The second part of a DUI investigation will normally involve field sobriety exercises. People can elect to take part in the exercises or not. Often, there is no video of the exercises, so the police officer’s account of what happened is the only evidence of how well someone did. People who have medical conditions that might affect their performance are better off if they remember to mention their physical limitations. The fact that someone denied being ill or having any physical limitations can be used against them in court.

One of the main signs of impairment that police notice is the failure to follow the directions properly. For example, the police officer may instruct someone to stand on a certain leg. If the other one is used, then the failure to follow directions may be seen as a sign of impairment. The result is that people who are nervous and scared sometimes do less well on the tests simply due to the fact that they are not following the directions properly.

Do you have more questions? If so, visit http://SpaceCoastDefense.com or http://VolusiaDefense.com. We may be reached by phone at (321) 253-6223 or (386) 218-4973.

Florida DUI Ten Day Rule

Arrested for DUI In Palm Bay or Melbourne, FL? Under Florida law, you’ll lose your driver’s license if you refuse to submit to the breath alcohol test. But you’ll also lose your license if your reading is .08 or higher.

Need more information or want to speak to an Melbourne, FL attorney now? Visit us at http://www.SpaceCoastDefense.com/ or call (321) 253-6223.

Refusing to submit to the breath alcohol test means a suspension of one year–or eighteen months if there has been a previous refusal.

However, when people submit to the test and receive a reading of .08 or higher, the driver’s license suspension is typically only six months.

Is there anyway to prevent the automatic suspension? Yes, by appealing the DMV’s administrative findings with ten days of your arrest.

Challenging the DMV determination is called a “Formal Review.” As long as the demand is filed within ten days, you will receive a temporary driving permit that will allow you to drive while the appeal pends.

The Formal Review occurs at a DMV hearing office. Police officers that witnessed the alleged incident are subpoenaed and give sworn testimony about what they witnessed. One benefit of the hearing is it gives defendants a preview of what police will say about them ahead of time–before the case is heard in criminal court. Your attorney cross examines the police witnesses, present other evidence that may contradict their testimony (if available), and present case law that supports a determination that the suspension of the driver’s license would be improper.

Keep in mind the Formal Review relates to the automatic suspension of your license immediately after an arrest. Win or lose, the main case will proceed in county court, potentially affecting one’s driving privilege and involving other criminal sanctions.

Why It’s Time to Restore Dischargeability of Student Loans in Bankruptcy

Many younger people are completely unaware that once upon a time, when people couldn’t find work, they could file bankruptcy and wipe out their debt–including their student loans.

Yes, in the 1980’s, when Baby Boomers were in college, student loans could be discharged in bankruptcy. Back then, people didn’t need to borrow much in order to go to school, and schools and housing were affordable. Schools and housing need to be affordable again. But the educational industry won’t change until it is forced to change. Setting students free is step one.

Society benefits when young people become educated and create innovations. Turning young people into indentured servants is destroying the United States economy, strangling the housing market, and forcing young people to stay in dead end jobs instead of creating new businesses. Student loans are dragging the economy down, and much of the debt is held by foreign governments and banks.

Many people don’t realize that student loans are currently treated the same as criminal restitution in bankruptcy court–debts owed due to criminal activities. For example, if a drunk driver injures somebody, they’ll owe criminal restitution, which can’t be wiped away in bankruptcy. Student loans are treated the same.

Why not treat student loans the same as tax debts, which can be discharged under certain conditions? Or better yet, treat student loans the same way that other unsecured debts are treated–make them fully dischargeable.

Student loans create an illusion that the American economy is equally accessible. It’s not. But young people don’t realize their mistake until it’s too late.

It’s time to wipe out the University-Student Loan complex and force our society to make college (and college housing) cheap and accessible to young people once again. The people getting rich from student lending must be held accountable. If students can pay their debts, they will. If they can’t, they’ll have to take their chances in bankruptcy court, possibly surrendering assets and damaging their credit. This is more than sufficient accountability for financial decisions made at a young age. It’s time to make lending and educational institutions accountable for their lies to American youth.

I’ve been Served with a Foreclosure, Should I Move Out Immediately?

Common Question: I’ve been served with a foreclosure, should I move out immedately?

Answer: Don’t move out until a sale date is set, unless you have some other reason to move, like a job in another city. The foreclosure may take months or even years–especially if a bankruptcy is filed or the the foreclosure is disputed by the borrower.

Sometimes people file bankruptcy, indicate an intention to surrender their home, and move out. Yet banks don’t initiate a foreclosure for several YEARS. That means that homeowners may be liable for HOA fees or city water bills that accrue following their bankruptcy. Bankruptcy wipes away debt that exists at the time of the bankruptcy, it does not transfer ownership. That only occurs in a foreclosure, short sale, or deed transfer.

The reason for this is that federal courts do not have jurisdiction over property ownership, just bankruptcy and debt discharge. Only state courts have jurisdiction over foreclosure, wills, and other property related legal matters. After a person files bankruptcy, and the bankruptcy stay is lifted after the debts are discharged, state courts must still finish processing any pending foreclosures.

I’ve been Injured in an Auto Accident, should I Sue Immediately?

After the pain and confusion of being in a car crash, or of being injured in some way, people often seek legal counsel immediately. But when they speak with the attorney, they are advised to seek medical care first before any lawsuit begins. Why?

Injured parties should always all a lawyer right away, but any potential lawsuit will be based on the totality of the medical record. If a person has only just begun to receive treatment for their auto collision injuries, the medical record will not be complete enough to indicate the full extent of their injuries and the degree to which recovery is possible. Additionally, medical complications may arise later that need to be considered before any settlement is arranged.

Injured in an Auto Accident, but No Attorney Wants the Case… Why?

One of the most common questions from prospective clients is why other attorneys chose not to represent them on an injury or auto accident case.

People say, “I was in a car crash or I was injured and I went to see an attorney and they didn’t take my case. Why?”

It could be that the damages suffered by the prospective client in the collision were not enough to justify a lawsuit. Or, it might be that neither party had sufficient insurance to make the case worthwhile, although there were significant injuries. These are just two of the most common reasons a lawyer might decline a case.

Software on Most Smart Phones Records Every Text Sent, Every URL Visited…Basically Everything the Phone Does is Recorded

About a month ago people learned that smart phones record and transmit data about their users. Only now, some investigators are reporting here that data collected by Carrier IQ, people’s most personal and intimate information, is being collected by law enforcement.

Off the record, some have indicated that law enforcement authorities are even able to remotely turn any cell phone on or off, or operate other features, such as the camera or video equipment. With the phone turned on, police are able to locate a cell phone customer by triangulating the nearest cell phone towers and essentially flushing them out.

With the Carrier IQ software, smart phones record and transmit every website a mobile phone user visits, every text they send. According to AT&T and other providers, it helps them know where calls are dropped, where the cellular network is weak, whether batteries are working properly, and other problems that happen systematically across the network. Firms like AT&T, Sprint, and others claim that the information is transmitted in an anonymous manner that allows the firm to compile metrics on network health, not personal files on each mobile phone user.

Needless to say, there are some obvious privacy concerns where everything a phone does is transmitted to a huge multinational firm with endless hard drive space. Animals that are tagged by researchers with radio collars may live more private lives than most Americans at this point.

From a legal perspective, people should use caution when using their phones. Avoid visiting websites or utilizing files on your phone that you would not want other people to know about. Privacy in America is increasingly just a fantasy.

Seizure of Property by Brevard Police Agencies Leads to Additional Revenue, but Some have Questions

When many people think of forfeiture of property to the police or the authorities, they imagine large mansions on Biscayne Bay in Miami being auctioned after Miami Vice has arrested a drug lord.

However, local attorneys say that police in Melbourne, Florida and law enforcement in Palm Bay have been systematically seizing property on a much smaller scale to help fund their operations. Florida Today reported on the forfeiture in this article

One local attorney said that a Palm Bay woman’s car was seized after her son was arrested in Palm Bay, Florida for driving on a suspended license for the second time in her car. At the time of his arrest, the car was seized by the Palm Bay Police Department, and she received a letter from Palm Bay PD saying she would not get it back unless she filed an appeal of the seizure. Her car was unavailable for approximately a month and she struggled to pay bond to get her son out of Brevard County Jail and to hire an attorney to defend him and to appeal the seizure of her car.

Fortunately, the Palm Bay woman was able to get her vehicle back, and it was not auctioned.

All of this stemmed from some unpaid tickets that her unemployed son had been unable to pay.

Some people in Melbourne, Viera, Rockledge, Palm Bay and other Brevard communities view this phenomena as a symptom of an overgrown law enforcement complex that is oriented against the little guy while ignoring the financial crimes that have lead to so many problems across Florida and nationally. Essentially, it is easier for police agencies to drive around running people’s tags, writing traffic tickets, and running k-9 units around people’s cars then to track what is happening at banks, insurance companies, Wall Street, and so on.

Others think the level of law enforcement is appropriate at the local level, but recognize that there has simply not been any enforcement within the halls of power.

What do you think?