Estate Planning and Administration/Westbrook Law of Grand Rapids, Michigan

We are up to date on the changing legal landscape surrounding wills and trusts and can assist our clients to establish, amend, or administer their estate plans. Our emphasis is on crafting plain-language, easily understood estate and trust documents that work within the law to ensure our clients’ individual wishes are carried out.  We can also create health care and financial powers of attorney that are compliant and effective, providing peace of mind in case of disability. 

The reality is a trust can be a fantastic tool for the average person because it simplifies things in the event of your death. So a trust allows you the -grantor- to specify exactly how your estate will be distributed to your beneficiaries when you die, and in the process can avoid probate and heartache.

A family trust is a trust established specifically for the benefit of members of a particular family. The purpose of creating a family trust is to protect and manage family assets for current and/or future generations.

We are here to guide you through whichever process is needed and understand there can be many emotions involved. As we work together you will have peace of mind that everything will be exactly how you deem it.

New Class Action Lawsuit Against Mortgage Servicer Real Time Resolutions Claims Threats to Harm Credit Ratings Broke the Law/Westbrook Law of Grand Rapids, Michigan

Mortgage loan servicers typically collect and process payments for mortgage loans on behalf of the owners of those loans. If your loan statements come from Ocwen, Nationstar (now using the quizzical alias “Mr. Cooper”), or Seterus, just to name a few, you are dealing with a servicer. Real Time Resolutions, Inc., another servicer, is the latest target of a consumer class-action lawsuit filed by Westbrook Law PLLC in the United States District Court for the Western District of Michigan, Bushouse v. Real Time Resolutions, Inc.

The new lawsuit alleges that Real Time violated federal and state law through its routine practice of threatening consumers with reporting obsolete, negative credit information about them. Whereas the law does not allow credit reporting of most negative items that are past seven years old, 15 U.S.C. § 1691c(a), the complaint alleges that Real Time continues to threaten negative reporting well beyond the seven-year mark. This practice, which could frighten consumers into paying obsolete debts they no longer have any legal obligation to pay, is alleged to violate the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e; the Michigan Occupational Code, M.C.L § 339.915; and the Michigan Mortgage Brokers, Lenders, and Servicers Licensing Act, M.C.L. § 445.1672. The plaintiff seeks damages for herself and other Michigan citizens who received the threatening communications.

Our expertise in credit reporting law–i.e., the federal Fair Credit Reporting Act–and consumer collection law informed this lawsuit and many others on behalf of Michigan consumers. If you have concerns about whether a practice by a debt collector or mortgage servicer is fair or lawful, contact us for a consultation.

TJW

Westbrook Law PLLC Notches Win in Wrongful Repossession Trial/Westbrook Law of Grand Rapids, Michigan

After a trial in December of 2017, the Montcalm County Circuit Court ruled in favor of the defendant and counter-plaintiff, represented by Westbrook Law PLLC, in a case that began as a $5,000.00 deficiency claim by the plaintiff/counter-defendant car dealer, and ended with a judgment against the car dealer for more than $10,000.00.

The case, Powers v. Brown, resulted from the dealer’s claim that the buyer missed an installment payment on his auto loan, thus entitling the dealer to repossess the vehicle and collect a deficiency balance on the loan. However, the evidence introduced at trial showed that the dealer had no contractual right to repossess the vehicle. Relying on Michigan’s conversion statute, M.C.L. § 600.2919a, Westbrook Law PLLC argued on behalf of the buyer that the dealer was liable for damages. The court (J. Schafer) agreed, finding that the dealer was liable for double damages and attorney fees.

TJW

House Financial Services Committee Evaluates Bill to Exempt Collection Lawyers from Fair Debt Collection Practices Act/Westbrook Law of Grand Rapids, Michigan

In December, House Bill H.R. 4550, entitled “Practice of Law Technical Clarification Act of 2017,” was introduced by sponsors Vincente Gonzalez (D-Tex.) and Alexander Mooney (R-W. Va.). If passed, the bill would dramatically limit the legal protections to consumers currently provided by the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o (“FDCPA”), by completely exempting collection lawyers from liability. Under current law, collection lawyers are treated the same as other debt collectors, and prohibited from engaging in abusive, misleading, or unfair collection practices. See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573 (2010). Westbrook Law PLLC has filed several lawsuits against collection law firms that violated the FDCPA. Those claims would not exist under the law as amended by H.R. 4550, and there is little question that the amendment would enable new and intensified abuses by collection law firms to go unchecked.

H.R. 4550 is currently being evaluated by the House Financial Services Committee, which may approve or kill the bill. Westbrook Law PLLC is actively engaging with committee members to ensure they are aware of the anti-consumer nature of this bill and to request that they do their part to prevent it from becoming law.

TJW

Supreme Court Releases Consumer-Unfriendly Opinion in Santander – What Does It Mean?/Westbrook Law of Grand Rapids, Michigan

Yesterday, the U.S. Supreme Court released an opinion highly anticipated by consumer lawyers as well as the debt collection industry, in the case of Henson v. Santander Consumer USA, Inc. This case dealt with the question of whether a purchaser of defaulted debts, which then attempts to collect those debts from consumers, counts as a “debt collector” that is subject to strict consumer protections provided in the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”).

To grasp the potential impact of this case, one needs to understand the structure of the consumer debt collection industry as it exists today:

The first step is origination, when the consumer first incurs a debt to a creditor such as a bank, credit card issuer, other lender, wireless provider, or cable company.

When the consumer defaults on a debt–usually by failing to pay–one of two things may happen: (1) the original creditor may hire a third-party debt collection company to attempt to collect the debt, generally through telephone calls and collection letters; or (2) the original creditor may attempt to collect the debt itself for some period of time.

Often, once the debt becomes sufficiently aged, the creditor sells, or assigns, the debt to a debt buyer. The debt buyer pays the creditor only a fraction of the face value of the debt, then attempts to recover as much of the debt as possible from the consumer by various means, often including telephone calls and collection letters.

The final stage in the process is a lawsuit filed by collection attorneys acting on behalf of the debt buyer. Most of these lawsuits are not contested, and result in default judgments that are slowly collected through wage, bank account, and tax refund garnishments.

It has long been settled law that, under the FDCPA, third-party debt collection companies and collection attorneys ARE “debt collectors.” Most federal courts found that debt buyers were “debt collectors” as well, including the United States Court of Appeals for the Sixth Circuit, which establishes precedent for federal courts in Michigan. Generally, circuit precedent found that creditors collecting their own debts could NOT be “debt collectors” unless a rare exception applied.

All of this matters for one basic reason: the FDCPA restricts what “debt collectors” are allowed to do, and creates powerful remedies for consumers when they do not comply with the FDCPA. The FDCPA creates various protections for consumers; for example, it requires debt collectors to identify themselves as debt collectors in communications to consumers, disallows certain conduct in collection lawsuits, outlaws attempts to collect debts no longer owed, limits consumer harassment by telephone, and disallows unfair and fraudulent conduct in connection with debt collection. Consumers harmed by violations of the FDCPA are entitled to sue, and can recover a statutory penalty as well as their attorney fees.

In yesterday’s Santander decision, the Supreme Court unanimously held that debt buyers are not automatically “debt collectors” subject to the FDCPA. According to the opinion, penned by newest Justice Neil Gorsuch, this is so because debt buyers are attempting to collect a debt that is owed to them, and thus are creditors, even though they are not the original creditors.

Taken in isolation, the Santander holding might seem catastrophic for consumers besieged by collection attempts from debt buyers (including such large players as Midland Funding, LVNV Funding, Portfolio Recovery Associates, and others), because the protections of the FDCPA would be unavailable. This would enable debt buyers to use, with impunity, the same harassing and unfair collection methods that “debt collectors” are not allowed to use under the FDCPA.  It is true that the Santander decision is beneficial to some debt buyers at the expense of consumers; however, its impact is limited. Justice Gorsuch carefully points out in the opinion that the court’s decision does NOT mean that debt buyers are NEVER “debt collectors.” Indeed, the text of the FDCPA appears clear that debt buyers ARE “debt collectors” if their “principal purpose … is the collection of any debts.” 15 U.S.C. § 1692a(6). With respect to the largest buyers of defaulted credit card debt–i.e., Midland Funding, LVNV, and PRA–an experienced consumer lawyer should easily be able to prove that their “principal purpose” is debt collection; and they are therefore “debt collectors” subject to FDCPA restrictions.

While the Santander decision does not make the consumer advocate’s job easier, and is likely to spur pernicious innovations in the debt buying and debt collection industry, it is hardly the death knell for the FDCPA. Consumer advocates and watchdogs, including us at Westbrook Law PLLC, will continue to find ways to keep abuses in check.

TJW

Collectors Still Pursuing Debt after Bankruptcy Discharge? It's Illegal./Westbrook Law of Grand Rapids, Michigan

Each year, hundreds of thousands of individuals with overwhelming debts file for Chapter 7 or Chapter 13 bankruptcy in order to regain their financial freedom.  The usual goal of bankruptcy is to have one’s debts “discharged,” or declared legally unenforceable and effectively nullified.  This is intended to allow the debtor a “fresh start” to their financial affairs.

But a discharge of debts in bankruptcy does not always stop debt collectors, who may continue to contact the debtor by phone or letter, or even file legal proceedings, after a debt has been discharged.  These post-discharge collection attempts rob the debtor of the “fresh start” he or she fought for in bankruptcy, and are often unlawful, violating various state and federal laws designed to protect consumers from abusive debt collection tactics.

If you are still being chased by debt collectors to pay a debt that was discharged in bankruptcy, Westbrook Law PLLC may be able to make the collection efforts stop, punish the debt collectors for violating the law, and get monetary compensation for you.  Contact us for more information or a free consultation.

If you have not filed for bankruptcy but wonder if it may be right for you, contact us for a referral to a qualified bankruptcy law firm.

TJW

Spam Text Messages and the Telephone Consumer Protection Act/Westbrook Law of Grand Rapids, Michigan

Nearly every bulk text (SMS) message sent to a cellular phone in the United States violates federal law – specifically, the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.  Enacted in 1991 primarily to constrain the growing scourge of invasive telemarketing calls, the TCPA has more recently been applied to cases of mass marketing, or “spam,” SMS text messages.  In 2016, the U.S. Supreme Court confirmed that such unsolicited text messages fall within the TCPA’s prohibitions on automatic telephone dialer calls.  Yet bulk text messages remain a commonplace nuisance for most people who rely on cellular phones.

The TCPA provides serious remedies to consumers who receive bulk text messages without their consent: $500 per message, or $1,500 per message for willful violations of the TCPA. These penalties quickly add up given the often repetitive nature of spam text messages.

The TCPA and its penalty provisions were designed to encourage consumers and consumer lawyers to act as “private attorneys general,” effectively assisting the Federal Communications Commission to enforce limitations on telephone system abusers.  If you receive unsolicited bulk text messages, do not just delete them.  Westbrook Law PLLC can assist you to determine whether the law has been broken, enforce the law and, in the process, pursue a monetary recovery for you under the TCPA.

Contact us to arrange a free consultation.