Duncan Law Blog

Will Bankruptcy Stop Creditor Phone Calls & Harassing Contact?

Sep 10, 2010 No Comments by

Yes, once a person has case number after filing either a Chapter 7 bankruptcy or a Chapter 13 bankruptcy, a creditor is prohibited from trying contact the debtor in any attempt to collect a debt.  With the bankruptcy in place creditors cannot initiate or continue any lawsuits against you or pursue any wage garnishments.  In the event that a creditor is trying to contact you or attempt to collect a debt after the bankruptcy has been filed, they would be in violation of the automatic stay bankruptcy code.  If this were to happen it would be in your best interest to document every type of contact by writing down the dates, times, people that you spoke with, and the company they are affiliated. Afterwards, contact your attorney and let them know that the bankruptcy’s automatic stay was violated.

The Fair Debt Collection Practices Act (FDCPA), is a law that protects the debtor from being harassed by a creditor or bill collector.  Examples of creditor harassment is when a debt collector threatens to send you to jail if you don’t pay your bills, constant phone calls harassing you to pay the bill, or a threat of bodily harm in anyway.  However, if the debt collector calls and doesn’t get you and calls back in an attempt to reach you, this scenario does not constitute debt collection harassment.

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However, you do have the ability to stop harassing phone calls and other creditor harassment by filing bankruptcy. The bankruptcy will create an automatic stay that makes it so the creditor may not continue to contact you. To learn more, contact us today to set up your free, no strings attached, bankruptcy consultation.

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How Do Attorney’s Fees Work in a Worker’s Compensation Case?

Sep 08, 2010 1 Comment by


Most attorneys’ fees in a workers’ compensation case are based upon a contingency fee arrangement between the attorney and the injured worker. A contingency fee arrangement is when an attorney agrees to provide legal services to the injured person and is usually only paid in the event the injured worker is successful in their case. If the injured worker is unsuccessful and receives no compensation, then the attorney is usually paid no money for their time and effort on the workers’ compensation case.

In North Carolina, the North Carolina Industrial Commission, sometimes called the worker’s compensation board, determines the attorneys’ fees paid to the attorney.  The Commission usually makes this determination based upon the retainer contract between the attorney and the client/injured worker. The Commission must approve all settlements to injured workers and the fees that are paid to the attorney.

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Most attorney-client retainer agreements specify a percentage of the total payment of the claim that is to be paid to the attorney. The percentage paid to the attorney in most workers’ compensation cases is somewhere between 25% and 33%.  This is usually determined by the complexity of the case. To learn more about how we can help you with your workplace injury contact us today.

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Can I Get Fired From My Job For Filing Bankruptcy?

Sep 06, 2010 1 Comment by

The short answer is, no.  Federal law prohibits an employer to discriminate against you for your declaring bankruptcy.  According to 11 U.S.C § 525 (a) and (b), no governmental unit or private employer may “…terminate the employment of, or discriminate with the respect of employment someone who is or has been a debtor under this title…” In other words, you can’t be fired from your job simply because you have filed for bankruptcy.

Can I Get Fired From Job for Filing Bankruptcy?

In most cases, your employer will never even know that you filed for Chapter 7 bankruptcy or Chapter 13 bankruptcy unless you tell them.  Also, as you are aware, bankruptcy has nothing to do with how well you can perform your job duties.  Once you are hired, they must have a different, legitimate reason to let you go (such as being late, not showing up at all, or not properly performing your job duties).

Although the law states that employers cannot use your credit against you; simply put, they sometimes do.  You may not be able to be fired from a job because you filed bankruptcy, but it could possibly prevent you from being hired for a job (or in some cases a promotion).  Normally, this only applies to your employment with private companies that deal with handling money like banks and other financial institutions. Federal, state, and government agencies cannot refuse employment due to bankruptcy.

Many companies have begun completing background checks, which include checking someone’s credit score. As unfortunate as it is, potential employers may use this to gauge your responsibility.  Do you pay your bills on time?  Are you over extended?  Someone with a high debt to income ratio could potentially be looked at as someone who might be more likely to steal from a company.  Is this fair?  No, not necessarily but it is more common than you think.  Many states are in the process of trying to ban credit checks used to determine employment, in an effort to protect citizens’ civil rights.

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Can I Eliminate a Second or Third Mortgage by Filing Bankruptcy?

Sep 03, 2010 1 Comment by

If you are like many people, your home is not worth what it was a few years ago.  With the downturn of the economy, the value of your house has decreased.  Suddenly, you are “upside down” on your home and the sales price is not enough to pay off the first, second and sometimes third mortgage on your home.

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When the real estate market was strong, many people capitalized on the fact that their home was worth more than their first mortgage and obtained second and even third mortgage loans against their home.  Often this money was used to pay off credit cards or medical bills, and in some cases it was used to update or upgrade the home.  Regardless, the house is not worth what you owe on it today, and there is no way for you to sell the home without a short-sale or possible deficiency balance.

If the value of your home is less than what you owe on your first mortgage, you may be able to file Chapter 13 bankruptcy in a North Carolina bankruptcy court and “strip” the lien of the second mortgage.  In other words, if you file Chapter 13 bankruptcy you may be able to either file a lawsuit (adversary proceeding) or file a Motion to Value Realty and eliminate a great deal, if not all, of the amount owed on the second and/or third mortgage.  Obviously, the mortgage company has the right to argue the value placed on the property.  However, if you have obtained a market assessment by a licensed real estate agent or an appraisal by a licensed appraiser, it will be more difficult for the mortgage company to argue the value.

The adversary proceeding or Motion to Value Realty must be filed in addition to your Chapter 13 bankruptcy case.  For the lien of the second and/or third mortgage to be “stripped” or voided, you must have a bankruptcy court order canceling the lien on the second and/or third mortgage and you must receive a discharge in your Chapter 13 bankruptcy.

If you have questions on how you may be able to “strip” a lien on your home by filing Chapter 13 bankruptcy, please do not hesitate to contact us.

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Can I See My Own Doctor If I’m Injured at Work?

Sep 01, 2010 2 Comments by

In a workers’ compensation case you are not able to choose your own doctor.   As a general rule, your employer has the right to choose a doctor to treat your injuries.  The doctor chosen does not have to be your own personal doctor and is, instead, likely to be a doctor that your company regularly uses.

There are, however, three exceptions to this rule:

1) Where the employer neglects or refuses to provide prompt and adequate services;

2) Where the employee is confronted with an emergency; and

3) Where the statute itself authorizes the employee to procure a physician of his own choosing.

The North Carolina General Statute § 97-25 says that the employer is allowed to choose the physician but the employee can, at any time, request a change in the treatment, but this change must be approved by the North Carolina Industrial Commission.

If you refuse to receive treatment from a doctor approved by the Industrial Commission then your employer does not have to pay for your treatment until you accept the pre-approved doctor’s services.  Therefore, initially you must go to the doctor assigned to you if you have a worker’s compensation claim, but if this doctor is providing insufficient care, then you may request to see another doctor of your choice but that physician must be approved by the Commission.

The reason North Carolina has set the system up this was is doctors have a lot of power in a workers’ compensation claim.  They will determine a disability rating and, eventually, what’s called a maximum medical improvement. These are the major factors in determining what type of compensation you can receive in a workers’ compensation case. The fear is people will go to their own personal family doctors who they have built a relationship with over time and that doctor will give them a more beneficial payout then they deserve.

The inability to choose your own doctor is something you must be aware of during a workers’ compensation claim. Although you will be unable to hand pick your initial doctor, you may ask for a second opinion from another physician. The previous doctor has the right to sit in on this second opinion.

It is important that when an employer sends you to get treatment by a certain doctor that you go. If you feel as though your treatment is inadequate or you don’t agree with their diagnosis then you should contact a workers’ compensation attorney who can help you navigate your way through the workers compensation laws.

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Should I Stop Using Credit Cards If I’m Going to File Bankruptcy?

Aug 30, 2010 1 Comment by

Generally speaking, yes. It is not mandatory to stop using your credit cards before filing for bankruptcy but you should use them wisely and, ideally, you should stop using them. If charges to your credit cards have been made to purchase luxury items within 180 days prior to you filing the bankruptcy you would need to wait to file.  Examples of luxury items would be charging a vacation, purchasing jewelry, dining at an expensive restaurant, or maxing out a credit card within months before filing bankruptcy.  If a client does make such charges and does not wait to file the bankruptcy the Trustee could exclude the debts from the bankruptcy or make the client pay it all back.  The creditors will most likely suspect fraud if large purchases are made 180 prior to filing.  This also includes cash advances on credit cards as well.

Credit Card Use Before A Bankruptcy

Once a client anticipates that they will have to file a Chapter 7 bankruptcy or a Chapter 13 bankruptcy the best idea would be to stop using your credit cards.  Bankruptcy laws allow the reviews of all questionable purchases for potential fraud.  In the event that you have committed a fraudulent conveyance or misrepresentation on your credit cards, some creditors may try to sue you in bankruptcy court for the remaining balance.  In the event that you do use your credit cards you should only use them for small purchases that are deemed necessities.  Examples are groceries, gas, and other items that are used on a day-to-day basis.

But again, your best bet is to stop using the credit cards as soon as you think bankruptcy will be a possibility.

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What to Expect at the Creditors’ Meeting

Aug 27, 2010 2 Comments by

Whether you are filing a Chapter 7 bankruptcy or a Chapter 13 bankruptcy, you will be required to attend a creditor’s meeting (also known as a 341 Meeting of Creditors). The Court schedules the date and time of your creditors meeting after your bankruptcy has been filed and a bankruptcy Trustee has been assigned to your case. The creditors meeting is a requirement of the bankruptcy code and it is mandatory that you attend. If you filed a Chapter 7 bankruptcy your creditors meeting will usually take place approximately 30 days after filing. If you filed a Chapter 13 bankruptcy your creditors meeting will usually take place approximately 45 days after filing. The purpose of the meeting is for the Trustee to make sure all of the information in your bankruptcy is accurate and to have the opportunity to ask any questions he or she may have about information you included in your bankruptcy.


Setting a Date | Bankruptcy Creditors' Meeting

On the day of your creditors meeting you should plan to arrive 30 minutes to 1 hour prior to your scheduled meeting. It is very important that you bring your drivers license and social security card with you to your creditors meeting, this is to validate your identity. Your attorney will be present at the meeting as well as other debtors who are there for their 341 meeting. Your creditors are notified of the meeting and may or may not be present the day of the scheduled 341 meeting. The Creditors Meeting is run by the Trustee assigned to your bankruptcy case. You will be sworn in by the Trustee and then he or she will begin asking you some general questions as well as specific questions pertaining to your case. The creditors meeting is recorded so it is important to remember at all times that you are under oath and to answer the Trustee’s questions truthfully.


Common questions:

How did you determine the market value of your home?

How did you determine the value of your car?

Did you list all your assets?

Do you have an assets in the business not listed?

Do you pay or receive child support?

Do you pay or receive alimony?


Your bankruptcy attorney will provide you with more information on your creditors meeting and discuss other common questions that you may face.

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Will I Lose My Retirement If I File for Bankruptcy?

Aug 25, 2010 2 Comments by

Generally speaking, no. However, there are always exceptions.

Most retirement plans are ERISA qualified, which stands for Employee Retirement Income Security Act of 1974.  This law was enacted to protect your retirement accounts from risky investments by your employer or plan administrator.  If the plan is ERISA qualified, then your bankruptcy Trustee cannot seize your retirement money to pay your creditors.  We recommend that you ask your employer for documentation showing that the plan is ERISA qualified.  This can usually be found in the plan summary in the packet of information that your retirement administrator will send. If you do not have the plan summary you will need to request something from your employer, however, this can take several weeks to receive so ask immediately.

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The most common retirement plan is a 401k, which is a type of deferred compensation plan.  Normally, this is through your employer and can be matched by the employer.  You decide what set amount that you will contribute per month, such as $100 or 5% or your salary if you choose.  The majority of 401k retirement plans are through your employer, which are automatically ERISA qualified.  There is a federal bankruptcy exemption that is used to protect 100% of your money through the 401K.

Another common type of retirement plan is an Individual Retirement Plan (IRA), which is a savings or investment account for the employee.  Contributions are made pre-tax and are not taxed until they are withdrawn.  However, there are several IRA’s that are not considered ERISA qualified which include:

Plans in which your employer or employer organization does not contribute money to the plan

Voluntary Plans for yourself that is not connected to employment (such as opening one at a bank)

Deferred Compensation Plans

Again, generally the Trustee will not be able to take money from your retirement accounts.  An example of when a Trustee may have the ability to “attack” your retirement is if you have a 401K through your employer and right before bankruptcy, you make a large contribution to “hide” some of your money.  This is considered fraud, in which the court can allow creditors to attach to your funds in order to get paid, even though the plan is ERISA qualified.

Although your retirement plans will almost always be protected, make sure you consult your bankruptcy attorney about your specific situation.

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Can My Employer Fire Me If I’m Injured at Work?

Aug 23, 2010 No Comments by

No, your employer cannot fire you simply because you have been injured at work and filed a workers’ compensation claim. Any employer who uses retaliatory action such as terminating you from your job due to an injury sustained on the job could be violating a North Carolina law known as the Retaliatory Employment Discrimination Act, also known as “REDA”.  If an employer violates this law by terminating you because of your injury on the job, you should contact a workers’ compensation attorney immediately.  In this event, you can bring a court action against the employer and seek damages from the employer.  The court may order you to be reinstated to your old position and order that you be compensated for your for lost wages, benefits, and seniority.   Be extra careful, there is a short time limit to file this type of claim against your employer.

Construction Worker | North Carolina Workers' Compensation LawyerGenerally, an employer would not be so blatant as to fire you because you were injured on the job and filed a workers’ compensation claim.  The employer will usually try to find a way to terminate you for tardiness, poor work performance, or a number of other reasons that aren’t related to the injury. However, we know that this is usually just a disguised punishment for filing a workers’ compensation claim.

A common method some employers use is to force you to resign.  An example of this is for the employer to assign you a terrible job while you recover from your injury.  For example, you have a foot injury that will take several weeks for you to recover.  Your employer may assign you the job of sitting on a stool all day long and count persons walking in the door.  Most persons cannot sit on a stool for eight hours each day for several weeks.  The employer would hope that you would become so mad that you would just quit the job.  That’s just what they wanted you to do.  Now they can claim you resigned from the job and you are unlikely to receive the “full” benefits that you would be entitled to if you had not resigned.

Also you must attempt to perform the job assigned to you based upon your injury and work restrictions when you return to work.  For example, the workers’ compensation doctor may limit you to lifting no more than 10 pounds.  If your employer assigns you a job lifting 7 lbs, you must attempt to do the job, or you could be terminated for “good cause”.  However, if your employer assigns you a job lifting 80 lbs bags of concrete, you can and should refuse to do the job based upon your medical restrictions.

In conclusion, be very careful when you return to work from your injury.  Many employers are looking for an excuse to terminate your employment because they do not believe you can perform the job because of your present or passed injury.  However, it is against the law for an employer to terminate or fire you from your job because you filed a workers’ compensation claim.

If you have been injured at work contact our workers compensation lawyers today to set up a free consolation to discuss your injury and work situation.

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Can I Sue My Employer if I’m Injured at Work?

Aug 20, 2010 28 Comments by

The short answer is no, you normally cannot sue your employer. However, there is another, more efficient, method to seek compensation from your employer due to an injury – workers’ compensation. As an employee, you cannot sue your employer for a work related injury. If the injury has occurred within the scope of your employment, you must claim your injury through the workers’ compensation system.

To better understand the workers compensation system, let’s give you a brief history lesson. Before 1929, if you are injured on the job the only recourse you had was to sue your employer. The problem was if you were injured, you need immediate medical care and payment for your lost wages from the injury. However, a lawsuit between you and your employer may take several years to settle or go to a jury. During this time you could not work, had no income, and also had to pay your own medical bills. As you can see this could cause lots of problems for you as an employee.

In 1929 the North Carolina legislature enacted Worker’s Compensation laws. The workers compensation laws had two main purposes. The first was swift compensation, wages, and medical care for the injured employee. The second was limited liability protection for the employer. Therefore under the workers compensation laws, you are not able to sue your employer unless it was for a very negligent act by your employer.  This is what is known as a “Woodson claim”. Currently Woodson claims are very hard to prove.

The workers’ compensation system was set up as a form of insurance for both you and your employer. The system is looked at as a “no fault system” which means that injuries are viewed as an unavoidable aspect of work relationships and there is no need to prove that your employer or a certain person caused your injury.

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The workers’ compensation laws are beneficial to employers because they do not run the risk of being sued by their employees.  Your employer pays a certain amount into workers’ compensation insurance throughout the year. If an employee is hurt on the job, the workers’ compensation system then pays a certain amount depending upon what type of injury is suffered.  The benefit of paying workers’ compensation insurance is the employer does not have to worry about being sued by their employees due to an on the job injury. Instead, if you want to make a claim against your employer for your work related injury you must go through the workers’ compensation process and cannot sue them in court.

The workers’ compensation system has obvious benefits to the employer. However, there are also a number of benefits to the employee who was injured. If you were to sue your employer you may have to wait years to receive any form of compensation. The workers’ compensation system gives employees compensation faster in order to pay medical bills and keep up with everyday expenses.  This is important because if you are injured, you may be out of work for an extended period of time.  Instead of waiting several years on a trial, which you run the risk of losing and receiving nothing, the workers compensation laws allow you to receive compensation more quickly to pay rent, medical bills and any other daily expenses you may have.  This system also prevents an employer from preventing you from obtaining compensation because they do not have the funds to pay for the medical bills that you may have incurred.  The companies workers’ compensation insurance carrier will pay for the necessary medical care and lost wages for an injured employee. As a give and take for these benefits, you are required to make injury claims against your employer through a workers’ compensation claim instead of a typical lawsuit.

As with any legal dispute, it is important to consult a workers’ compensation attorney that can ensure that you receive the full level of benefits that you deserve.

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