Duncan Law Blog

What You Need to Know Before Your Chapter 13 Phone Interview

Apr 23, 2014 No Comments by

TelephoneIf you file a Chapter 13 bankruptcy in the Middle District of North Carolina (Greensboro, Winston-Salem and surrounding areas), you will be required to have a phone interview with the Chapter 13 Trustee’s office.

You will need to call the Trustee’s office to schedule your phone interview. Be sure to call in on the date and time it is scheduled for – if you do not call for your phone interview, the Court can dismiss your bankruptcy case!

Submit the Necessary Documents

Another important note: the Trustee’s office cannot do the phone interview with you if they have not received all of the necessary documentation from you beforehand. It is important to submit all of the documents they have requested before the interview!

Review Your Bankruptcy Paperwork

The night before your phone interview, sit down with the copy of your bankruptcy petition you were given after your signing appointment. Remember: you came to our office for your signing appointment, we reviewed the petition together, and then we gave you a copy of the paperwork after the appointment was done.

During your phone interview, the staff from the Trustee’s office will be looking at the same paperwork that you have a copy of. You need to review it the night before just to refresh your memory on everything we reviewed together.

We Want Their Support, Be Nice!

The purpose of the phone interview is to review the file and ask you any clarification questions the court may have. Remember, our office has had a lot of interaction with you – we’ve asked you a lot of questions, received a lot of paperwork from you, and spent a lot of time with you. The only information the Trustee’s office has is the petition that was filed with the Court and the paperwork you submitted to them. It is important to be patient on the phone during the interview. They are asking questions so they have accurate information about your case. If you get frustrated or impatient, it will not help your case!

Ask Us Your Questions, Not the Chapter 13 Trustee’s Office

Finally, be sure to keep a note pad near you during the interview. If you think of any questions during the phone interview, jot them down and call our office afterwards to talk to us about your questions.

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What is the North Carolina Industrial Commission’s Form MSC8?

Apr 09, 2014 No Comments by

North Carolina Industrial Commission Form MSC8 is a mediated or compromised settlement agreement. This mediated settlement agreement sets forth the terms of the settlement agreement in a workers’ compensation case in North Carolina. The agreement stipulates certain agreed upon facts of the case which may include, but is not limited to, the following topics:

1) Whether the Defendants admit or deny compensability of Plaintiff’s claim.

2) Employment status of the worker. For example, has the worker returned to work, or is the worker still out of work due to the injuries?

3) Compromise settlement agreement states the total sum in dollars paid to the worker for the injuries. In other words, the dollar amount settled in this case.

4) The fourth section talks about the injured worker’s ability to receive disability benefits until this settlement agreement is approved by the North Carolina Industrial Commission.

5) This section deals with medical payments. Is the injured worker aware if there is a settlement agreement, he or she may be responsible for all future medical expenses pertaining to this case? When signing a compromised settlement agreement the Plaintiff acknowledges they will no longer have their medical expenses covered by the Defendants.

6) The sixth section discusses potential liens. It explains the Plaintiff has not put the Defendants on notice of any liens against the settlement proceeds and explains the Defendants will not be responsible for any liens.

7) This section deals with other interest. Basically the parties agree that this is a fair settlement.

8) The eighth section pertains to third-party claims. For example, health insurance claims.

9) This section deals with the mediator’s fees. Most of the mediator fees are paid by the Defendants if a settlement is reached at mediation.

10) This section pertains to the fact that only written promises in this agreement will be relied upon by the Plaintiff, or injured worker. No oral or verbal promises will be relied upon by the Plaintiff. In other words, unless it is in writing, no promises have been made.

11) The final section explains that all parties are bound by the language in the settlement agreement.

Eventually, the Plaintiff / Worker’s attorneys, the Plaintiff / Worker, the Defendants’ attorneys, and the mediator signs this agreement binding all parties to the terms of the agreement. It is important that you carefully go over Form MSC8 or Mediated Settlement Agreement because it contains the final language of your settlement agreement with the Defendants.

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What Is A Form MSC2 in North Carolina Workers’ Compensation?

Apr 07, 2014 No Comments by

Construction Worker Injured at Work in North CarolinaA Form MSC2 is a form used for the North Carolina Industrial Commission. It is a petition or request for an order referring a case or claim to a mediated settlement conference. This form request that the Industrial Commission order the case to a mediated settlement conference. The form is usually requested by the injured worker or the employer.

A mediated settlement conference is a hearing in which the parties appear and try to come to a resolution of the workers compensation case before an actual Industrial Commission hearing is held. The form MSC2 must be served on all parties regarding the workers compensation case.

After a review of the form MSC2 by a Commissioner or the Deputy Commissioner assigned to the case, the Commissioner or Deputy Commissioner may enter an order referring this case to a mediated settlement conference. The Commissioner or Deputy Commissioner will set a deadline as to when the mediated settlement conference should be completed.

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The Dangers of Cosigning On A Debt

Apr 04, 2014 No Comments by

Should you cosign on a debt for a friend or family?

Cosigning on a debt is almost never recommended. However, it’s a tough decision sometimes when you have friends or family that need you to cosign on a debt to receive the necessary loan. Typically, though, it’s not a good idea to cosign on a debt. Let’s find out why.

What is a cosigner?

Filling out paperworkWhen someone is trying to obtain financing and they do not have the FICO credit score necessary to receive financing on their own, the creditor may request someone else cosign on the debt to receive the desired financing. So what exactly does cosigning mean? If someone cosigns on a debt it means they are agreeing to be responsible for that debt if the original debtor is unable to pay it.

The problem is, if the person who originally needed the loan can no longer pay it then the creditor can go after the cosigner for the debt. The creditor has the same rights to go after the cosigner as they do the primary debtor. It is not uncommon at all to see a codebtor be sued for an uncollectable debt.

Lets take a look at an example:

Dana the daughter needs to get a new vehicle. Her old vehicle has broken down and without a new vehicle she cannot get to her minimum wage job. She goes to a car dealership and after sitting down to sign all of the final paperwork the finance director at the car dealership they tell her they cannot give her financing due to her low credit score. Dana had a repossession three years ago that appears on her credit. They tell her she will need to get a a cosigner to receive the necessary financing. Stressed and needing a vehicle Dana calls Molly, her mother, to explain the situation. Molly the mom wants the best for her daughter Dana and knows she has to have a vehicle. Dana promises her mom that she will make the payments. Hesitantly Molly cosigns on a car loan for $30,000.

Fast forward and a year later Dana has made all of the payments on the vehicle. Molly barely even remembers that she cosigned on the debt. Unfortunately though, Dana ends up losing her job and can no longer afford the monthly car payment. To ensure the car is not repossessed again Molly, Dana’s mother, agrees to make the payment until Dana gets a new job. Months and months pass by and Dana is unable to find a job. Molly has used her savings and even pulled from her retirement account to try to continue to make the payments. Eventually Dana’s moved back in with her mother and Molly has exhausted all of her savings and retirement funds and they get behind on the car. The financing company eventually repossesses the vehicle and sells it at an auction for $5,000. The problem is, they still owed $20,000 on the vehicle. The finance company then tried, unsuccessfully, to collect on the deficiency balance of $15,000. Because of that, they filed a lawsuit against both Dana and Molly and eventually place a lien on Molly’s house and add interest, late fees, penalties and attorney’s fees to the amount owed.

The creditor could potentially try to repossess Molly’s other vehicle (which is paid off), go after money in her bank accounts and even foreclose on her house (which has a lot of equity). As time passes the creditor continues to add extra fees to the amount that is owed. Eventually, Molly has to file bankruptcy because she owes on the deficiency on the vehicle that she cosigned on and owes a lot in taxes because she had to withdraw a lot from her retirement account.

So what have we learned?

Don’t cosign on a debt with someone else. The person needing a cosigner may have the best of intentions. In our example above, Dana certainly did not want her mother to go through the stress and worry of having creditors come after her. The reason a finance company requires a cosigner is because they believe there is a good chance the person seeking the financing won’t be able to make the necessary payments. If this were to happen, creditors don’t care that you cosigned just to help out. Instead, they will come after you as if you were the one who originally failed to make the payments.

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What is Form EC100 of the North Carolina Industrial Commission?

Apr 01, 2014 No Comments by

Dad & Son

Form EC 100 of the North Carolina industrial commission is a form requesting compensation to persons erroneously convicted of felonies. Normally, the North Carolina Industrial Commission has jurisdiction regarding workers who are injured on the job.  However, in 1997 the North Carolina General Assembly charged the North Carolina Industrial Commission with the administration of compensation or persons erroneously convicted of felonies and who were incarnated based upon the erroneous conviction.

If a person was incarcerated and placed in jail, and later it was determined that person was wrongfully incarcerated and was not guilty of the crime (felony) charged against them, they have the right to ask the State to compensate them for the time served in prison or jail. This is pursuant to North Carolina General Statute § 148-82.

Under Form EC 100, the person erroneously convicted of a felony must petition the North Carolina Industrial Commission for compensation for the time served in jail or prison for the felony. The petitioner must also state the grounds for their claim of compensation. In other words, why should they be compensated for their time in prison for a crime they did not commit? The petitioner must also attach a certified copy of the Judgment of Convictions which resulted in the prison or jail time and a copy of a Pardon of Innocence signed by the Governor of North Carolina.

Upon completion of Form EC 100, the petitioner should then mail one original and two copies of Form EC 100 to the North Carolina Industrial Commission. The North Carolina Industrial Commission will then determine if the petitioner is entitled to compensation. You can contact a workers’ compensation attorney and they will usually be able to assist you in this process as well.

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How Much Will Bankruptcy Hurt My Credit Score?

Mar 19, 2014 No Comments by

Impact Of Bankruptcy On Your Credit Score

Bankruptcy Research | North Carolina Bankruptcy InformationIn a previous blog post we have discussed how long filing a bankruptcy will impact your credit score. Today we are going to discuss how much filing a bankruptcy will hurt your credit score.

The reality is, nobody knows exactly how much a bankruptcy will impact your credit score. There are five different areas that are reviewed that help formulate your credit score. Exactly how your FICO or credit score is determined is kept secret. However, we know filing for bankruptcy will have a negative impact on your credit. The amount of that impact will vary depending upon what your credit score is before filing the bankruptcy and the makeup of your prior credit history.

In our experience working closely with our clients, if you have a pretty good credit score at the time of filing a bankruptcy you can anticipate about a 100 point drop. Again, this will be different with everyone. Also, if you have a lower credit score then the decrease will not usually be as much.

Although filing for bankruptcy will hurt your credit score, simply doing nothing to address your debt may create an elongated process to poor credit as well. The key is, if you have debt  you do not believe you can recover from, filing for bankruptcy may hurt your credit initially, but it will allow you to begin the process to rebuild your credit. Whereas, if you don’t file a bankruptcy but only continue to pay minimums on your debts then you would just continue to have average credit and you will be spending a ton of money by paying interest, late fees and penalties. Of course, falling behind on monthly payments will also chip away at your credit score as well.

The best thing is to talk about your specific situation with an experienced bankruptcy attorney. An experienced lawyer can explain the process and help you determine whether filing a bankruptcy makes sense in your situation.

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Will Bankruptcy Wipe Out My Student Loans?

Mar 06, 2014 No Comments by

Bills in MailboxWhile technically you do have the ability to discharge student loans in a bankruptcy, in almost every case the courts do not allow you to discharge your loans.  Declaring bankruptcy does clearly show financial hardship, but the federal government will still not allow you to completely discharge your student loan debt.  The only way to rid oneself of student loans in a bankruptcy is if the payment of the loans would “cause undue hardship.”   While most people would say having to pay high student loan payments when filing bankruptcy is an undue hardship, the federal government has a different opinion of this phrase. 

Courts use various tests to determine what is undue hardship but the overall attitude is your specific situation must be so extreme there is no way you could ever pay off the loans.  An example would be someone who has extremely high loans such as graduate, medical, or law loans and because of some circumstance they are no longer able to work.  This person can likely never pay off their student loans in their lifetime.  They must also show they have made a good faith effort to pay off their student loans in the past.  The federal government says this normally means you should have been attempting to pay off your loan for at least five years.  The idea is that this person has been attempting to pay off their loan in the past, but if they are forced to continue paying off the loan, this will force them into a minimum standard of living or poverty.

Doctor Looking at an X-Ray of a Patient

Lets look at an example of when student loans might be dischargeable. John Doe went to school to become a surgeon. He completed medical school and his residency and now has close to $550,000 of student loan debt. Although he has a lot of student loans he makes approximately $250,000 a year of income as a brain surgeon. He makes payments each month for a five-year period. Then, one day while out on the lake, John Doe dives into the lake from his boat and he failed to realize the water was shallow. He breaks his neck and becomes a paraplegic. In other words, he is paralyzed from his neck down. At the time of his student loans John Doe owes approximately $300,000. Due to his injury he will never be a surgeon again and is not likely going to find a job that will allow him to pay off his student loans. In this situation, the courts may determine that an extreme circumstance exists allowing for the discharge of student loans.

The courts are hesitant to discharge student loans because while it may be hard to pay your loans now, someday in the future you will be back on your feet and capable of making payments again.  Many people believe they qualify for student loan discharge in bankruptcy but it cannot be stressed enough how extremely rare it is that someone is able to discharge their student loan payments in bankruptcy.  This is a situation where you have the burden to prove to the court why you should be the exception and why your situation is different.  The courts very rarely grant someone a discharge of their student loan debts.

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What Is A MSC5 Report In North Carolina Workers Compensation?

Feb 25, 2014 No Comments by

Workers' compensation questionsAn MSC5 report is the report from a mediator in a North Carolina worker’s compensation case. On this form, the worker’s compensation mediator reports on the results of the mediated settlement conference between the worker and his or her employer.

The mediator is a person assigned by the Industrial Commission or mutually chosen by the attorneys in the case. The majority of the time the mediator is a licensed attorney familiar with workers’ compensation laws. The mediator’s role is to attempt to come to a consensus or mediate the workers’ compensation case in which all parties hopefully come to a settlement before the case would proceed to an actual workers’ compensation hearing.

After the mediation, the mediator fills out Form MSC5 and returns it to the North Carolina Industrial Commission, regardless of the success or failure of the mediation.

In this form, the mediator reports whether the mediation was held, whether the mediation was completed, or why the mediation was not held. The mediator also reports the fees they should receive for the mediation in this North Carolina worker’s compensation case.

A majority of the North Carolina worker’s compensation mediated settlement conferences are successful in coming to a resolution of the case.

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Who Selects the Mediator in a NC Workers’ Compensation Case?

Jan 31, 2014 No Comments by

Mediator | North Carolina Workers' CompensationThe short answer is the attorneys for both sides in a North Carolina workers’ compensation case will usually mutually agree upon a mediator. If not, the North Carolina Industrial Commission can appoint a mediator.

A mediator is a person, usually another attorney, who helps negotiate an agreeable outcome between two different parties. Mediators have been used in the legal system for an incredibly long time and usually help parties reach a mutually agreeable outcome without having to go to court or in front of a “finder of fact.”

If you have a North Carolina workers’ compensation case then you too will likely use a mediator at some point in time. The North Carolina Industrial Commission requires that a case go through mediation if a Form 33 is filed. Additionally, the plaintiff(s) and defendants can agree to have a voluntary mediation as well. The chances of having a successful mediation can, often times, depend upon the mediator. A good mediator can explain to both sides that neither will get everything they want out of a case and having a mutual agreement where neither party gets everything they want is sometimes better than running the risk of not receiving anything at all. An experienced mediator can also help both parties in a dispute get a better understanding of what the opposing party is thinking and arguing. Knowing this will allow you to better understand the other sides position and really allow the sides to focus on the areas in dispute versus every facet of a case.

In a North Carolina workers’ compensation claim, attorneys for both the plaintiff(s) and defendants will try to pick a mediator that both sides can agree upon. Experienced work injury lawyers know which mediators are best in their area. The two sides almost always agree upon a mediator. However, if the plaintiff(s) and defendants cannot agree upon a mediator for a required mediation then they would notify the North Carolina Industrial Commission and the Industrial Commission would appoint a mediator.

Most workers’ comp cases are settled at a mediation. Therefore, it is important that you have a good mediator. An experienced attorney for your injury at work will know who the best mediators in your area are and will fight to ensure you have someone that can help you resolve your case in the most efficient and fairest manner possible.

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Damon Duncan Named to Business North Carolina’s “Legal Elite” and “Young Guns” Lists

Jan 22, 2014 No Comments by

Legal EliteWe would like to congratulate Damon Duncan on being recently named to Business North Carolina’s “Legal Elite” and “Young Guns” lists. Of all of the lawyers in North Carolina only 3% of those were selected by their peers (other attorneys) as “Legal Elite.” Specifically, Damon received the honor for his bankruptcy practice. By being elected to be on the “Young Guns” list Damon was voted as one of the best attorneys in North Carolina under the age of 40. Congratulations again to Damon for the recognition by other attorneys of his hard work he does on behalf of his clients.

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