Can a Creditor Call Me At My Job?

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Open Laptop - KeyboardHave you ever had a creditor or debt collector call you at work?  After the shock of the call wears off, you wonder “can they do that, is that legal?”  The answer of whether it is legal in North Carolina depends on your specific situation.

North Carolina General Statutes, Article 2, Section 75-52 outlines what is considered harassment by a debt collector.   Subsection 4 specifically addresses phone calls made by debt collectors to an individual’s place of work.  There are two key component to this subsection that help determine whether calling you at work is considered legal under the North Carolina Statutes.

Did you provide your work telephone number to the creditor or debt collector at any point in time thus telling them it is okay to contact you at work?

Does the creditor or debt collector have another telephone number to contact you at during non-working hours?

If you provided the debt collector your work telephone number, you may have unintentionally given them permission to contact you at work.  As a result, you want to correct that problem by telling the creditor or debt collector that the work telephone number is no longer a good number to reach you, and you are requesting they no longer contact you at that telephone number.  In addition, you will need to provide another telephone number they can contact you at during non-working hours.  If you do not provide the creditor or debt collector with another valid telephone number where they can contact you, they may continue to contact you at work even if you have asked them to stop calling you there.  Why, because the work number is the only telephone number they have to contact you.

You can easily stop creditors or debt collectors from contacting you at work,  however, you must provide them with an alternative number you can be reached during non-working hours.

If I Become Depressed Due To An Incident on the Job Can I Collect Workers’ Compensation Benefits?

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Research on a White LaptopDepression caused by an accident or incident on the job is usually compensable.  However, there must be a medical doctor or a licensed psychologist opinion that the depression was caused by the incident or accident.  You cannot claim you feel depressed without a professional opinion substantiating the claim of clinical depression.

For example, a new healthcare worker was asked to assist rescue workers with the recovery of bodies of a major airplane crash.  Several children on the plane were killed and their bodies were badly damaged. The healthcare worker had children the same age as some of the plane crash victims.  The healthcare worker was severely depressed after the incident and needed psychological counseling.  This type of treatment is usually compensable.

If an employee was injured on the job and lost an arm, this, too, would cause depression for most persons.  The counseling needed by this person is usually compensable as part of their medical expenses.

Again the key factors are the depression must be work related and there must be a professional clinical diagnosis of depression. This depression must be related to and caused by the employment of the person (employee).

If you think you may be suffering from depression from an incident that occurred while you were working, you should speak first with a health care professional. After you have received proper care, you should then speak with a workers’ compensation attorney to determine if the depression may be compensable under workers’ compensation laws.

Can I Collect Workers’ Compensation If I Get Injured In the Parking Lot Of My Employer?

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Construction Worker Carrying 2 by 4'sGenerally speaking, it may be difficult to receive a workers’ compensation benefits if you are injured in your employer’s parking lot. However, there are some exceptions. There are several conditions that must be met for you to receive workers’ compensation benefits for an injury that occurred in your employer’s parking lot.

If you are injured during the course and scope of your employment, in other words, if you are doing your job and are injured in the parking lot of your employer or any parking lot, the injury is compensable. This may be true even as you are walking from your car to the building or from the building to your car.  The key factor here is the wording “during the course and scope of your employment.”

Second, normally the parking lot must be owned, possessed, or controlled by the employer. If this is not the case, and you were not performing your job, the injury is usually not compensable.  What if you were across the street in an adjacent parking lot which was not controlled by your employer immediately before work? You slipped and fell on the adjacent parking lot before you entered the premises of your employer. This injury is usually not compensable.

The term  “during the course and scope of employment” is essential in receiving workers’ compensation benefits.  This is true even if an accident occurred in the parking lot of your employer.

For example, on your day off you bring your friends to your employer’s ice covered parking lot. You decide to show them your potential Olympic ice skating skills. You slip on the ice and break your leg. Is this a compensable injury? Probably not. Why not? Because you were not performing your job. It was your day off and the ice skating skills you were showing your friends had nothing to do with your job duties. The injury was not in the course and scope of your employment, even though it happened on your employer’s parking lot.

However, if your employer told you (as part of your job duties) to take some potential customers to the parking lot and impress them with your skating skills as a marketing gimmick for the employer, the injury would probably be compensable.

If you believe you have suffered an injury in the parking lot of your place of employment that you should be able to recover for under workers’ compensation, contact an attorney immediately to discuss the specifics of your case.

Can I Collect Workers’ Compensation Benefits If I’m Injured On the Way To Or From Work?

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Arriving to North Carolina on RoadwayGenerally, injuries sustained going to and from work are not compensable as a workers’ compensation injury.  However, there are a few exceptions to this general rule. The following is a list of injuries that may be compensable under workers’ compensation.

First, if the injury occurred on the premises of the employer as the employee is arriving or leaving work, the injury may be compensable. A common example would be a person slipping on an icy spot as they step onto the employer’s parking lot as they arrive for work.

Next, if the employee is performing a “special errand” for the benefit of the employer.  For example, the employer may ask the employee to stop by a paper goods store to pick up a case of copy paper on his way home after the employee has “clocked out,” and the employee is injured in an accident before they get to the store, but after they leave the employer’s premises, the injury will probably be compensable.

Another example is when the employee leaves their home, but instead of going directly to work, the employee must go by and see a customer of the employer.  If an injury occurs driving directly to visit the customer, the injury is usually compensable.  In the alternative, if the employee is a salesperson and in route to visit a customer and the employee decides to stop by a bar and have a few drinks and falls and injures himself in the bar, this injury is usually not compensable. This is commonly known as a “frolic and detour”.

A final example of a compensable injury is when an employer is responsible for carrying the employee to and from work as part of the employment contract.  For example, the employer has agreed to pick up construction workers at their home and carry them to the construction site.  Along the way to the construction site, the employee is injured in an automobile accident, this injury is usually compensable.

The workers’ compensation rules surrounding injuries that occur going to or from work are complicated; you should speak with a workers’ compensation attorney regarding the specifics of your situation to determine whether you may be able to file a workers’ compensation claim due to your injuries.

What Is Considered A Transfer For Bankruptcy Purposes?

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Young Family with ChildrenIf you are filing bankruptcy then a portion of your bankruptcy petition called the Statement of Financial Affairs asks if you have made any transfers.

Section 10 of the Statement of Financial Affairs requires you to, “list all other property, other than property transferred in the ordinary course of the business or financial affairs of the debtor, transferred either absolutely or as security within 2 years immediately preceding the commencement of this case. (Married debtors filing under Chapter 12 or Chapter 13 bankruptcy must include transfers by either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)”

So what exactly does that mean?  It means if you have sold a major tangible asset such as a house, car, Jet Ski, boat, ATV, basically anything that is titled, tagged or taxed, needs to be listed in this area.  Also, if you have transferred ownership, this information will be included in this area as well.  So for example, you buy a car for your 16 year old, and after they graduated, you transferred the title to their name, then that transaction would need to be included in this area as well.  Any property sold or transferred within the last 2 years must be listed in your bankruptcy. We encourage our clients to tell us about any property that has been transferred in the last five years.

Beware though; the bankruptcy Trustee will want to see what you received for this transaction.  Did you sell a house that was worth a million dollars, owned free and clear, for $5 bucks?  This is his way of catching Debtor’s trying to “beat” the system.  In such a case, the Trustee would reverse the transfer, sell the property and use that money to pay off your debts.  Anything remaining would go to him.  If you have sold or transferred a property within the past 5 years it is critical to discuss that transfer with your attorney so he or she may advise you correctly.

How Do I Know If There Is A Lawsuit Or Judgment Against Me?

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We get this question often!  The answer for the most part is quite simple.  If you have been sued, unless you have changed your address and have not updated it through the post office, you likely have received notices that were being sued.  To understand the process of a lawsuit better, check out the blog post we wrote about whether bankruptcy can help you if you have a judgment.

Young Family Sitting in Front of House

Should you be a person who has moved and slipped through the cracks, finding out if judgments are against you is still a quite simple matter.  You will need to go to the Clerk of Court for the county that you are (or in the case of moving, were in) and have them do a judgment search on you.  They can pull up the person/creditor who sued you, date it was entered into the court system, amount you owed at the time of the lawsuit, what the daily interest is and the amount you currently owe.  For example, if you lived in Union County, North Carolina for the past 9 years and you just now moved to Mecklenburg County, North Carolina,  your judgments are likely still registered in Union County. Therefore you will need to check there first. (But checking in your current county of residence isn’t going to hurt anything either!)

From that point, you will need to determine if the suit has attached to any real property you may own.  For example, let’s say for our purposes, you have lived in Mecklenburg County for the past 10 years and never moved, you own your home by yourself and there is a judgment against you.  Once that judgment is placed against you, it will automatically attach itself to your home.  If you have previously been sued , you will need to discuss that with your attorney to make sure the proper steps are taken to remove that judgment from your credit, especially if there is a lien involved.

If you have a lawsuit or judgment against you then you may want to contact a Charlotte bankruptcy lawyer, Greensboro bankruptcy attorney or Winston-Salem bankruptcy lawyer to learn more about your rights.

What Is a Tax Lien and a Tax Levy?

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April 15 Circled on Calendar for Tax DateWith limited exceptions, most Americans are required to file tax returns with the Internal Revenue Service, and if you work or live in North Carolina, the North Carolina Department of Revenue.  If you do not file and pay your taxes on time each year, you will incur penalties and interest on the amount of money you owe the tax entity.  Initially, the tax entity will likely work with you to establish a payment plan for the taxes you owe.  However, if you make no effort to contact and work with the taxing entity, do not be surprised if a lien is placed against all of the property you own or your wages are garnished through a tax levy.

First, let’s discuss the difference between a tax lien and a tax levy.

A tax lien is a security interest against your property.  The IRS records a tax lien with the clerk of court in the county where you live.  The lien is on all real and personal property you own including your house, car, bank accounts, clothing, household goods, etc.  As a result, you will be unable to sell your home, car or other possessions without first obtaining a release from the IRS.  In other words, the IRS will now allow you to sell your house and make a profit without being paid at least a portion of the debt that is owed to them.

A tax levy is a legal seizure of your property to satisfy a tax debt.  With a tax levy, the IRS can seize and sell your house, car or other assets.  They can also seize your bank accounts, retirement accounts, state tax refunds and other assets.  They can also garnish wages.

By filing bankruptcy, you may be able to eliminate some of the tax debt and stop a wage garnishment while in an active bankruptcy.  If you file a Chapter 7 bankruptcy to eliminate credit card, medical bill and other consumer debt, the wage garnishment will stop while you are in the bankruptcy but may resume once the bankruptcy is complete and if taxes are still owed.  In certain situations, amounts owed on taxes that were due more than three year ago may be eliminated in a Chapter 7 bankruptcy.  Unfortunately, if a tax lien is placed for the older tax years the tax debt may be eliminated BUT the lien is still in effect.  As a result, you may still be required to pay the taxes if you sell your house or car in the future.  As a result, you should contact the IRS and State of North Carolina and request a copy of any tax liens prior to filing bankruptcy.

You may want to consider a Chapter 13 bankruptcy to restructure your tax debt and pay the taxes over the course of three to five years.  If you decide to file bankruptcy to restructure your tax debt, it is very important you determine whether there is a tax lien before the bankruptcy is filed.  The existence of liens will impact the amount owed in the bankruptcy and will directly impact the monthly payments in a Chapter 13 repayment plan.

Tax liens and tax levies are the IRS’ and State’s way of ensuring taxes are paid by the majority of their citizens.  If taxes are owed, it is best to work with the IRS and state proactively to avoid tax liens and levies.  However, should you find yourself with a lien or levy, you may want to consider bankruptcy to restructure the payments.

Must I Get the Court’s Permission To Settle A Workers’ Comp or Personal Injury Claim While In Bankruptcy?

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If you have filed or will be filing a workers’ compensation or personal injury claim, be sure to tell your bankruptcy attorney so your potential settlement can be listed and protected in the bankruptcy.  If it is not listed and protected in your bankruptcy, you could lose the money received in the settlement.

Workers' Compensation Doctor looking at x-ray

If you have lived in North Carolina for at least two consecutive years, North Carolina General Statutes allow the settlement, regardless of the dollar amount received, to be protected in bankruptcy.  If you are required to use exemptions from another state or federal exemptions because you have not met the residency requirement as outlined in the bankruptcy code, you may not be able to fully protect the settlement in bankruptcy.  The exemptions vary by state, therefore, it is very important to discuss the potential settlement with your bankruptcy attorney before filing bankruptcy.

If you are in a Chapter 13 bankruptcy, it is necessary for you to work with your bankruptcy attorney to obtain the bankruptcy court’s permission to settle your workers’ compensation or personal injury case.  This is necessary even when you listed the potential settlement on your original bankruptcy filing.  By filing the motion and obtaining an order from the bankruptcy court to settle the claim, the total settlement is protected from the bankruptcy Trustee and your creditors assuming you are able to use North Carolina exemptions.  Therefore, the settlement is yours to assist you and your family with living expenses or to cover future medical expenses you may incur due to your injury.

If you file a Chapter 7 bankruptcy, you may or may not be required to file a motion to settle the injury claim.  If the settlement is offered while you are in an active Chapter 7, you should contact your bankruptcy attorney to determine if it will be necessary to file a motion with the court.  If the settlement occurs after your Chapter 7 bankruptcy is discharged and final decree is issued, it is not necessary to obtain the bankruptcy court’s permission to settle the claim.

As previously mentioned, it is extremely important to speak with your bankruptcy attorney about your potential workers’ compensation or personal injury settlement prior to filing your bankruptcy.  If the settlement is not protected correctly in the bankruptcy, you could lose your settlement.

What is the Difference Between A Lawsuit, Judgment and Lien?

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Many debtors get nervous when all these legal terms start to get thrown around. We are going to explain what each of these are so that you will have a better idea of what you may be dealing with. We will focus on the civil side of things and how they relate to bankruptcy filings.

Lawsuit:

Say you owe a credit card company $4,000 and you cannot afford to pay them anymore. After several months of not receiving any payment from you, they may choose to sue you for the amount you owe them. This is a lawsuit. They will file it with the court saying they want to take legal action against you for the money you owe them. Once you receive a lawsuit, you typically have 30 days to respond. It is usually best to respond because it will buy you some time so you can figure out what you would like to do before they get a judgment.

Judgment:

If you do not respond to that lawsuit within the certain amount of time, the court will set a date for a hearing. Usually at this hearing your creditor will ask for a judgment against you. This means you now have a court order that is requiring you to pay the money you owe to the creditor. If you fail to pay your creditor after they receive a judgment, the court could place a lien on the property.

Lien:

One of the most common things that can be called a lien is a mortgage. You took out a loan that is secured by a home. If a creditor obtains a judgment against you in court, that judgment could possibly attach to your home or other property as a lien. That debt that you owe the creditor for the judgment is now secured by your home or other property. You typically must satisfy (or pay) the lien off in full before you are able to sell or transfer the property. In North Carolina, a lien can last for 10 years and then be refilled for an additional 10-year period if it has not been executed or satisfied. This is another incentive to get you to pay that debt. Bankruptcy can help get that lien off your property, but an additional motion must be filed.

How Did Bankruptcy Change With the New Laws in 2005?

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Before 2005 it used to be fairly easy and cheap to file bankruptcy. When the bankruptcy laws changed in 2005 the process for filing for bankruptcy became more complicated. Due to the complications of cases fees across the country for filing bankruptcy also went up.

Bankruptcy Questions

One of the main things that changed is the requirement to pass the “means test” in order to be able to qualify to file a Chapter 7 bankruptcy.  Generally speaking, if your average monthly income is less than the states median income, then you will pass the means test. If your average monthly income is more than the states median income, then there are a few other things that are taken into account to determine if you will pass or not. In this case, the means test looks into your income, expenses and the total amount of debt you owe. If that determines you have enough income to pay a certain amount to those creditors each month, then you will fail the means test. This means that you will not qualify to file a Chapter 7 bankruptcy but, instead, you can seek bankruptcy protection under a Chapter 13 bankruptcy.

Another thing that the new laws now require is the debtors have to provide proof of income. This means that they must provide their tax returns for the previous year to the trustee. If the previous years’ taxes have not been filed, they must get filed before the bankruptcy filing can proceed. This goes for both Chapter 7 bankruptcies and Chapter 13 bankruptcies.

The new laws also now require people who file bankruptcy take a credit counseling course and a financial management course.  These must be through government-approved agencies, so make sure to check with your attorney to find out which ones are government-approved.  If these companies suggest a repayment plan or other options, you do not have to follow them. For bankruptcy purposes you only have to be able to show that you have taken the course. A lot of debtors feel that these courses help and give them good information.

These are a few of the main changes that accompanied the bankruptcy law changes in 2005.