Paying off Credit Card Debt after a Death

When dealing with a death of a loved one, his/her unpaid credit card bills are probably the last thing on your mind. But should you concern yourself with someone else’s credit card debt?

While paying off the debts of a relative might feel like a moral obligation, the answer as to whether it is a legal obligation is not immediately clear. Generally credit card debts are not the responsibility of any family members, but become a responsibility of the deceased person’s estate. In a nutshell, the debts of the deceased should be deducted from the estate’s assets. However, if there are no assets or the debts exceed the assets, the outstanding debt is usually “written off” by the creditors.

If the family members were, however, joint account holders, they may very well be on the hook for the debt. For example, a husband is not responsible for the credit cards of his wife, if wife was listed as the only user. But if the husband was a joint account holder, he could still be liable. If the husband was only an authorized user, however, he should not be liable for the debt, unless he was also actually using that credit card. As such, even those relatives who were not joint account holders or authorized users could still be liable for the debt if they used the deceased’s credit card. Note, that while the credit card companies may acknowledge that the family member is not responsible for the debt, they could still report him or her to credit reporting agencies.

There are exceptions, but typically the relatives are protected from creditors by the federal Fair Debt Collection Practices Act, or FDCPA. The law has severe penalties for violations of the FDCPA, and relatives who are being harassed by creditors can fight back. Once creditors or collection agencies contact heirs, they should be provided with the contact information for the person handling the estate (such as an executor or a personal representative), and under the law the creditors or collectors are not allowed to further contact the heirs. In addition, creditors or collectors are not allowed to mislead anyone into thinking that he or she has a legal responsibility for a debt if that is not the case. If you are being improperly contacted by a creditor or collection agency, consult with an attorney to determine your remedies.

If an estate goes into probate, which is the first step in the legal process of administering the estate of a deceased person, then the court typically decides which creditors get paid first, before any heirs receive their inheritance. In general, many states require written “notice” to creditors when probate is opened, giving them some time to make a claim. But credit cards are often one of the last items to be paid from an estate. Other liabilities take priority, such as taxes, mortgages, Medicaid, administration expenses, and funeral expenses.

If your relative dies with credit card debt, it is a good idea to inform the lender/creditor as well as the three major credit reporting bureaus (TransUnion, Equifax and Experian) of the date of your relative’s death and to close the credit account and credit profile. Also check if there was insurance for the credit cards that would pay off the amount due at death.

Closing the deceased person’s account will not only help you put your loved one’s affairs in order, but it can prevent a potential scam. Some unscrupulous collection agencies have been known to harass deceased person’s relatives claiming that the deceased had an outstanding debt. Typically, the claimed debt amount is sufficiently low as to make the survivors tempted to just pay it off instead of spending time arguing and seeking debt validation, which you typically should do.

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The current situation in Ukraine does not merit the filing of an asylum application

by Tatiana B. Durbak, Esq.

During the past month-and-a-half, I have received several inquiries from Ukrainians who would like to file asylum applications, based on the current situation in Ukraine. All of the people were quite insistent that their cases were urgent and were extremely confident that the applications would be granted. The last inquiry was from a gentleman who had already filed his application and who wanted to get employment authorization more rapidly. He believed that if the adjudicator understood the urgency of his need, not only the employment authorization would be granted, but it would be granted in an expedited time frame. That is not the case, however. There are no such shortcuts in asylum process.

These inquiries made me think that there must be people in the community who believe that political asylum applications are now a good way for Ukrainians to obtain or maintain lawful immigration status in the US. Unfortunately, this perception is inaccurate. At the present time, unless one is from Crimea or from one of the areas where Russian agitators are very active, there will usually be insufficient basis to file a successful asylum application.

To be able eligible for a grant of asylum, one must establish that one has a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group. The persecution must be carried out by the government or a group that the government cannot or will not control. There are additional requirements, and each employs terms that have a specific legal meaning that may differ from the ordinary meaning of the word.

Although past persecution can be used as a basis for asylum eligibility, it’s important to know that not all hostile behavior is defined legally as persecution. For example, if one was stopped or harassed by the police, or one’s home was searched a couple of times, or even if one spent a few days in jail, it is not necessarily true that the US government will find this to constitute persecution. Furthermore, if the US government proves that country conditions in the home country changed after the time that the persecution occurred and that the applicant no longer has a reason to fear future harm, the past persecution claim will not establish an asylum claim. If new people take charge of the government, or a new president or prime minister is appointed or elected, the US government will believe that country conditions are now changed and that persecution is no longer likely. The applicant must then prove that the new government will also persecute her/him or that the new government cannot or will not control the group that is causing the persecution.

In almost all asylum cases, corroborating evidence must be provided; a person’s statement or testimony alone will usually be insufficient to win a case. Any untrue or misleading information can result not only in a denial, but in a permanent bar to any immigration benefits.

An asylum applicant may not apply for permission to work (employment authorization) until 150 days have passed from the time of acceptance of the application by USCIS. There are no exceptions to this rule.

Asylum applications must be filed in the office with jurisdiction over one’s place of residence. The approval rates vary among asylum offices and vary from month to month; San Francisco usually has the highest rates of approvals (in the 60% range) and New York the lowest (usually below 20%); the over-all approval rate hovers in the upper 30% range. This means that, across the country, most applications are not approved. If an asylum application is not approved, and the applicant’s period of permitted stay has expired, the case will be referred to Immigration Court, and the applicant will be placed in removal (deportation) proceedings.

Although it is true that many people were killed during the Maidan demonstrations, that many others were beaten, and that much repressive action occurred, there was a change in the government as a result of the demonstrations. There is no indication that the current Ukrainian government is persecuting anyone who participated in or who supported Maidan.

It is possible, in particular circumstances, that a Ukrainian citizen may be eligible to receive an asylum grant. However, no one should file such an application without consulting an attorney who practices immigration law and who has experience doing asylum applications. An un-approved asylum application will usually lead to removal (deportation) proceedings, which are costly – in money, time, and energy. It is important for everyone to be aware of the fact that in the US, notaries are not legal professionals. Translators and other well-intentioned people who do not know the law often offer advice that is inaccurate and which can lead to removal proceedings. People who do not have sufficient money to consult an attorney should consider going to one of the many non-profit agencies, recognized by the US government, which have staff trained in immigration law. A list of such agencies can be found at this website: http://www.justice.gov/eoir/probono/states.htm ; they are listed by state.

Ukrainians who enter the US on a valid visa and whose period of stay has not expired may have other options to prolong their period of stay in the US. A conversation with an attorney who is knowledgeable about such matters is probably a worthwhile investment, because it can enable one to understand the system and the process and to make the plans that best meet one’s needs. Proceeding on one’s own, or with the advice of people who are not experts in the area of immigration law can result in a waste of time, money and effort and in much heartache.

Tatiana B. Durbak has been an immigration lawyer for many years. She has worked in the private and non-profit sectors and currently practices in Pennington, NJ at the Teper Law Firm LLC. She can be contacted at tdurbak@teperlaw.com

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How to Stay Safe during Winter Storm

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  • Bring pets and companion animals inside during severe weather.
  • Remember that running water, even at a trickle, can help prevent pipes from freezing.
  • Keep garage doors closed if there are water supply lines in the garage.
  • Open kitchen and bathroom cabinet doors to allow warmer air to circulate around the plumbing. Move any harmful cleaners and chemicals up out of the reach of children and pets.
  • Keep the thermostat set to the same temperature both during the day and at night.
  • Go to a designated public shelter if your home loses power or heat during periods of extreme cold. Text SHELTER + your ZIP code to 43362 (4FEMA) to find the nearest shelter in your area
  • Avoid driving in dangerous conditions such as: sleet, freezing rain or drizzle, snow or dense fog. If travel is necessary, keep a disaster supplies kit in your vehicle.
  • Before tackling strenuous tasks in cold temperatures, consider your physical condition, the weather factors and the nature of the task. Overexertion can bring on a heart attack—a major cause of death in the winter. If you must shovel snow, stretch before going outside.
  • Protect yourself from frostbite and hypothermia by wearing warm, loose-fitting, lightweight clothing in several layers. Stay indoors, if possible.
  • Remember about people who require special assistance, such as elderly people living alone, people with disabilities and small children.
  • Never use a generator, grill, camp stove or other gasoline, propane, natural gas or charcoal-burning devices inside a home, garage, basement, crawl space or any partially enclosed area. Locate unit away from doors, windows and vents that could allow carbon monoxide to come indoors.

 

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5 Tips to Avoid Speeding Tickets

Let me begin this article by stating that there is no such thing as fool-proof system to avoid receiving speeding tickets … except always driving posted speed limit. However, there are a few things you can do (and say) that can help you avoid getting more speeding citations.

  1. Work on your situational awareness. If everyone on the road is slowing down, there probably is a reason for that. Don’t be that guy who burns rubber leaving everyone behind, sticking out like a sore thumb.
  2. So don’t stick out. Which car is more likely to get pulled over, the tan sedan traveling in the slow lane, or the hemi orange Challenger?
  3. Keep quiet and always be polite. Once you get pulled over, never get snippy with the officer. This is not a place or time to argue your case. Challenging a police officer will not help you make your case but may result in additional citations. If you truly believe that the ticket was unfair, fight it later in court. Hand in your license, registration and proof of insurance. Remain polite but do not volunteer any information.
  4. If you do decide to engage the officer and try to talk your way out of a ticket, don’t insult the officer’s intelligence with some ridiculous excuse. Many officers are more likely to let someone off with a warning or non-point citation if that person is truthful than someone who is lying.  A traffic cop has probably seen and heard it all, if he or she happens to be in a good mood you may get lucky but don’t count on being rewarded for creativity.
  5. If you’re going to speed because let’s be frank everyone does it from time to time, and if you drive in NJ it may feel like everyone is speeding all the time, keep in mind that many officers may not bother pulling someone over who is speeding 5-10 miles over the limit, but once you are going 10+ miles you’re starting to stick out. Going over 20+ miles over the speed limit is even more likely to result in some unwanted attention from the police. Having said that, let’s go back to the situational awareness – going 10 miles over the speed limit in a residential neighborhood is not the same as speeding on a highway.
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New Year’s Resolutions – 2014

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We are know the typical New Year’s resolutions: lose weight, stop smoking, save money, watch less television etc. And we all know that most of these promises will be quickly forgotten by mid-February when we slide back into our comfort zones and resume our old habits. We want to better ourselves but oftentimes our goals are just too unrealistic. So why not make 2014 the year you get your legal affairs in order? Here are a few doable and worthwhile New Year’s resolutions that can help you upgrade your legal and financial situation.

1. Know where your “legal papers” are and store them properly. Do not let your important paper-work haphazardly pile up or end up getting lost or stolen. Keeping your documents in order can prevent missing crucial deadlines (curt dates or filing dates), forgetting to renew licenses, permits and insurance, and becoming delinquent on due bills.

2. Review and update your estate plan. A great estate plan created in 2013 might not be a great estate plan in 2023.  Make sure you review your Will, Power of Attorney, Healthcare Directives, and Trust documents every year so your estate plan still protects your property, legal rights and wishes.

3. Do not use quickie internet forms.  A one-size-fits-all approach is never a good one when it comes to legal documents.  More often than not, some generic form created who-knows-where will not meet the ever-changing legal requirements where you live.  You will save money in the long run and avoid costly legal problems by retaining an attorney to listen to your personal needs and provide correct legal documents.

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The Perils of Free File-Sharing

The Internet can be a wonderful resource for news and information, it can help you find a job, or connect you with friends all over the world. However, it also has a dark side that lure many unsuspecting people into a trap with costly and embarrassing legal consequences. One of the most troubling is a program called BitTorrent.

BitTorrent is a file-sharing program favored by pirates hoping to trade free copies of software, movies, and music. There are other versions of the BitTorrent protocol know by other names — uTorrent, Vuze, LimeWire, and Transmission are some of the more popular variations. Every variant of BitTorrent does the same thing — it allows users to share files with other users on the Internet.

The program itself is fairly ingenious — it takes a large file, like a movie, and breaks it up into thousands of smaller pieces. As a user searches for a movie, it locates someone who has the file and begins downloading the small pieces from that user. The program keeps searching for other users with the same file, and as it finds these other users, they begin sharing pieces.

BitTorrent has two features that make it a favorite of pirates — first, it never stops searching for pieces, meaning that thousands of users share the file with the downloader. This gives it incredible download speed. Second, as soon as the downloader has any piece, of the file, he or she must share their parts of the file with another downloader — uploading cannot be disabled.

However, there are no legally available movies on BitTorrent! Movie producers have begun suing BitTorrent users by the thousands for their file-sharing activities. For example, Killer Joe was a box-office flop starring Matthew McConaughey. However, Killer Joe is widely and easily available on BitTorrent. To make back their investment, the producers have engaged in a mass litigation strategy against the users sharing the movie.

As of this date, the producers of Killer Joe have filed more than 50 lawsuits against hundreds of individuals seeking damages of up to $150,000 per user! Fighting the case could cost the defendants many thousands of dollars, and even a “cheap” settlement is typically $1,000-2,000. Suddenly, that “free” movie isn’t so free.

Even worse, some of the files on BitTorrent have been corrupted by hackers, embedding hidden viruses on your computer that can be used to access your bank accounts, personal files, and other private information.

To avoid this kind of lawsuit, don’t use BitTorrent. There are several legitimate sources of free movie content online — Amazon Instant Video and Netflix legally offer many free movies to their subscribers. Apple’s iTunes service also offers content, though not typically for free. Movies from these sources, both streaming and downloadable, are perfectly legal and will not get you in trouble.

Another important thing to do is password protect your wireless internet. “Wardrivers” are hackers who physically drive to locations looking for unprotected WiFi so that they can use BitTorrent on someone else’s network — when the lawsuit comes, it will be the completely innocent homeowner in court while the Wardriver gets away.

For the innocent homeowner, it will cost many thousands of dollars and several months of legal aggravation to clear his or her name. Many people, rather than deal with the risk and hassle of court simply choose to pay a settlement out of their own pocket.

BitTorrent is dangerous and risky, and can very easily land you in court. Lock down your wireless, and don’t use BitTorrent — there are no legal movies available there.

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When Parents Disagree on Medical Care for Their Children

Parents have a legal obligation to take care of their children including providing them with shelter, food and medical care. After separation or divorce, a court or the parents themselves will make a determination as to which parent the child will live with (child custody). Oftentimes, the child will live with one parent, who will thus have physical custody, and the other parent will be granted parenting time (visiting rights).  Most frequently, court and parents decide that legal custody is to be shared by both parents (joint legal custody).

Generally, joint legal custody is defined as the parents’ shared right to determine how to raise a child, with specific consideration to day-to-day activities. Parents are expected to make decisions together, without the interference of a court. Those decisions include making educational and medical decisions, such as deciding whether to pursue a particular medical treatment or procedure.

This works if both parents share common child rearing goals, religious, philosophical, cultural and financial ideas, and are able to parent collaboratively. However, parents must be able to effectively communicate and handle making joint decisions involving a child. When parents are unable to communicate with each other and have different ideas about raising children, often even a minor dispute can turn into a major disagreement.

Historically, many courts have upheld the right of parents to refuse medical treatment for their children, recognizing that fit parents are in the best position to make those difficult decisions.* As such, whenever a parent’s refusal is challenged it is usually not by a government entity but rather by the other parent who may have different religious, philosophical, cultural and financial ideas as to proper child rearing.

If parents cannot reach a mutual decision involving the day-to-day rearing of a child or making a medical decision, a court may consider a few alternatives:

  • Deferring to a neutral third-party, agreed upon by both parties, which might be a stipulation in the custody agreement
  • Court ordered mediation
  • Litigation, if both previous alternatives fail a court can make a decision for parents.

Courts generally do not want to be involved with the decisions pertaining to raising one’s children. However, once involved, courts will always consider the best interest of the child rather than religious, philosophical, cultural and financial ideas of a parent.

Here are some of the most frequently disputed medical decisions:

Vaccinations

The decision to vaccinate is filled with controversy. For many parents, it is the first medical choice parents make on behalf of their child. While vaccinations undoubtedly carry some benefits, there are those who believe that there are also risks associated with routine vaccinations that can lead to disability and even death.

While New Jersey has mandatory vaccination regulations, a child can attend public and most private schools with select or no vaccines if the parent or guardian provides a valid medical or religious exemption letter to the school administrator. Private and religiously affiliated schools may or may not accept religious vaccine exemptions, however. NJ does not currently allow parents to use a conscientious or philosophical vaccine exemption.

Dental care and orthodontics

Many practitioners of non-interventionist religious groups, such as Christian Scientists, do not believe in routine dental care or aesthetic orthodontics. For many others, decision to forego dental care or orthodontic treatment is based predominantly on parent’s financial situation. When someone struggles to put food on the family’s table, braces for the children are considered superfluous.  However, this can become trickier when parents have money, but one parent simply does not consider straight teeth a necessity.

Emergency care and hospitalization

Even most divisive philosophical and cultural beliefs often require compromise in times of emergency. If a child requires urgent care and is in the physical care of one parent, the second legal custodial parent might not even be informed prior to a child’s hospitalization or medical procedure.

If you and your former spouse/partner disagree on the practice of conventional medicine, a family law attorney or mediator might be able to assist you in reaching a compromise regarding your child’s medical care. After all, even a compromise might be better than going to court and having a judge make a decision for you.

* But while adult patients can refuse treatments on grounds of faith, the religious convictions of a child—or of their parents—are not generally an acceptable legal defense against withholding lifesaving treatment.

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