McMillan Law Group
RESULTS DRIVEN PREEMINENT LEGAL ADVOCATES HANDLING CONTENTIOUS LITIGATION IN STATE AND FEDERAL COURT, AND PROVIDING BOTH DEBTOR AND CREDITOR REPRESENTATION IN FEDERAL BANKRUPTCY COURT.
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Faulty vehicles: what is a lemon law?

After several months of research, you purchase a car that comes with the manufacturer’s new car warranty. You got a great price from the dealer, and they ensure you that you are getting a great deal. Within the first month, you take the car back in for repairs. Each month after, you find yourself returning to the dealer to get the same problem looked at again and again.

This may be more than just frustrating. Your new car may be “a lemon”. Fortunately, California’s lemon law, the Tanner Consumer Protection Act, protects you from your faulty purchase. How does the lemon law work?

More borrowers may soon be allowed to refinance student loans

According to the Institute for College Access and Success, college graduates in California average $21,382 in student loan debt. As students graduate into a tight job market, they may find it tough to pay back student loans. Inability to pay back loans may have some people considering bankruptcy or refinancing, but are student loans eligible for discharge?

The short answer to discharging student loans through bankruptcy is usually "no," but the longer answer may be "yes" if the client and attorney take the right steps. Refinancing options are still available to student loan borrowers who are not eligible for discharge via bankruptcy or may not be interested in bankruptcy at all.

Discharge of Student Loans

The McMillan Law Group is proud to announce yet another victory in the Student Loan Discharge Sphere. Earlier this year, MLG was able to negotiate the stipulation to discharge of over $130,000.00 in Student Loans for one of our clients. The case was in the Eastern District of California Bankruptcy Court.

The Stipulation is fantastic for the client in that they were able to avoid the extensive costs of trial. Our strategy to front end load the process such that the attorneys for the Student Loan Company could see defeat coming was clearly the way forward in this space.

Law Student Scholarship Essay Contest

Topic:

The Telephone Consumer Privacy Act (47 U.S.C. 227) ("TCPA") was enacted to protect consumers from automated calls to their cellular phones. Congress recognized that consumers incur charges for calls to cell phones and that marketing companies use automatic robo-dialers to randomly choose numbers. In that regard they provide statutory damages ranging from $500.00 per call to $1,500.00 per call.

Can Student Loans Be Discharged in Bankruptcy?

Legal Standard for California
Government guaranteed student loans cannot be discharged in bankruptcy unless, "excepting such debt from discharge ... will impose an undue hardship on the debtor and the debtor's dependents." 11 U.S.C. § 523 (West) (emphasis added). Undue hardship is determined using the Brunner three-part test. In re Pena, 155 F.3d 1108, 1114 (9th Cir. 1998); Brunner v. New York State Higher Educ. Services Corp., 831 F.2d 395 (2d Cir. 1987). The debtor must establish (1) that the debtor cannot maintain, based on current income and expenses, a minimal standard of living for himself or herself and dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good-faith efforts to repay the loans, which may involve an inquiry into the debtor's efforts to maximize income and to minimize expenses. Id. at 1111.

Element 1: You have to show that if you had to pay your student loans you could not maintain a minimal standard of living.
The first element of the Brunner requires the debtor to show that "based on current income and expenses, a minimal standard of living for himself or herself and dependents if forced to repay the loans." Pena 155 F.3d at 1111. "Debtors are not required to live at or below the poverty level to be entitled to a fresh start." In re Cota, 298 B.R. 408, 415 (Bankr. D. Ariz. 2003). "Minimal" is "a flexible and subjective term that can only have objective meaning in light of the particular facts of each case." Id. at 415 (quoting In re Afflitto, 273 B.R. 162, 170 (Bankr.W.D.Tenn.2001)). The court's task is to determine if the debtor can afford to support herself and her dependents if made to repay all or part of her student loans. Id at 413.

Uncovering the Cover Up: Shedding Light on Seller Concealment

Purchasing a home can be one of the most exciting and most stressful events in your life. Many home buyers are disadvantaged in the transactional process because they simply do not buy many houses in their lifetime. There have been many cases of buyers moving into their home and finding major defects even after hiring the best inspectors and conducting their due diligence. The McMillan Law Group is highly experienced in representing buyers of real property during and after the close of escrow.

Seller's Duty

A seller of a home has a duty to the buyer to disclose all facts that materially affect the value or desirability of the property that are known or accessible only to the seller if the seller knows that such facts are not known to, and cannot be discovered by the diligent attention and observation of the buyer. Failure to fulfill this duty of disclosure is actual fraud. The seller must have actual knowledge of the defect.

Buyers have been successful in bringing actions against the seller for failure to disclose (1) a roof leak; (2) a land fill; (3) the condemnation of the land; (4) inadequate water well capacity; (5) building code violations; (6)violations of zoning ordinances; (7) improvements constructed without a permit; and (8) dedication of an easement immediately prior to close of escrow.

Creditor Rights in Bankruptcy

A major part of a successful business is collecting on your accounts and debts. Creditors do not have to give up upon discovering a bankruptcy petition was filed by a debtor. The ultimate goal is full collection from your debtor, and there are many factors involved to make sure you get the greatest payment. However, most of your rights are contingent on acting fast. The McMillan Law Group can quickly determine what will be necessary to preserve your debt owed by a debtor.

Creditors have a few powerful methods for dealing with a bankruptcy.

Opposing Lien Strip Motions

A debtor can move the Bankruptcy Court to void a lien on property when the value of the property is less than that of a senior lien. This is a serious attack on a creditor's investment. Once the lien is stripped the creditor's claim is unsecured. MLG will aggressively protect your investment.

Surviving Sequestration

Using Sequestration to get Free Through Chapter 13 Bankruptcy

Your right to file for bankruptcy was carved into the Constitution by the founding fathers of this nation in Article 1 Section 8 of the Constitution, before the right to free speech and the right to bear arms. Our market economy relies upon the acquisition of debt to allow us to purchase homes, automobiles, and take chances as entrepreneurs. Families plan their budgets, including what debt is manageable, according to their planned income. Under sequestration, the Border Patrol personnel have faced reductions in income from 25-30% through no fault of their own. Those debts that were once manageable can now seem absolutely insurmountable.

Chapter 13 of the Bankruptcy Code allows individuals with regular income to settle debts with creditors for a fraction of what is owed. The bankruptcy process bunches debt into two basic categories, secured and unsecured. "Secured" means the value of property secures the debt, and "unsecured" means there is no property that can be taken to satisfy the debt. In bankruptcy, secured creditors interest are protected, but unsecured creditors may only get a percentage of what they're owed. In short, secured debt stays the same throughout the bankruptcy process, while unsecured debt may be reduced through bankruptcy to give relief from what would otherwise be an impossible financial situation. But the bankruptcy laws can be used to change how some debts are defined and treated in the bankruptcy process.

IRS Offer in Compromise

MEMORANDUM ON OFFER IN COMPROMISE

An Offer in Compromise is the most straight forward and effective method of reducing your tax debt. If you qualify, you will only be required to pay a small fraction of what you owe to settle your tax debt for good. The IRS takes about six to nine months to process and accept an Offer in Compromise. There are three types of an Offer in Compromise: (1) Doubt as to Liability, (2) Doubt as to Collectibility and (3) Effective Tax Administration. They are all governed by IRC §7122(c). IRS Form 656 must be completed to apply for an Offer to Compromise. Only about 25% of the OIC's submitted were accepted by the IRS.

Discharge of Tax Debt in Bankruptcy

The broad rule in bankruptcy is that tax debts are not dischargeable in Chapter 7, Chapter 11, or Chapter 13 bankruptcy proceedings and that these debts have the eighth priority for payment of claims. There are, however, a number of exceptions to this broad rule under which certain income tax debts may be dischargeable by an individual taxpayer in a Chapter 7 bankruptcy proceeding. If the obligation is discharged, then creditors may not attempt to collect the debt.

I. The Three-Year Rule

If the due date for the tax return, including any extensions, is greater than three years from the date of the filing of the bankruptcy petition, then the debt is dischargeable (11 U.S.C. §507(a)(8)(A)(ii)). Under the "three-year rule," the due date for the tax return, including any extensions, is the starting point and the date of the filing of the bankruptcy petition is the end point. The three year period is extended if the taxpayer has filed a prior bankruptcy petition, filed a case in Tax Court, or extended the statutory period for assessment. Under such circumstances, the three year period is extended as long as the proceeding is pending under bankruptcy or nonbankruptcy law, plus an additional 90 days.

Contact

McMillan Law Group
2751 Roosevelt Rd. Suite 204
San Diego, CA 92106

Phone: 619-880-4371
Fax: 619-241-8291
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