If you owe too much money, you can go to prison even though you have not committed a crime. You can also be kicked out of your home and face a myriad of other negative consequences. Even so, the largest religion in the United States continues to be "consumerism"-the deeply held belief that buying goods and services makes us better and happier. Attorney Charles Jerome Ware explores how you can keep spending, maintain your freedom, and stand up for yourself. He shares ways to prevent foreclosure, discourage identity theft and other forms of fraud, avoid debt settlement scams, and rebuild your credit. This insider's guide reveals hundreds of facts to educate and inform the faithful American consumer. Don't be bullied into living like a pauper when you can take reasonable steps to improve your financial position. Changing your life and avoiding pitfalls starts with learning Legal Consumer Tips and Secrets.

Legal Consumer Tips and Secrets

Avoiding Debtors' Prison in the United StatesBy Charles Jerome Ware

iUniverse, Inc.

Copyright © 2011 Charles Jerome Ware
All right reserved.
ISBN: 978-1-4620-5182-3

Contents

Chapter One: Personal Injury 101...................................................................................1Chapter Two: Medical Malpractice...................................................................................11Chapter Three: Credit Bureaus, Credit Scores and the Credit Business...............................................19Chapter Four: Fifteen (15) Tips for Avoiding Foreclosure...........................................................38Chapter Five: Avoiding Identity Theft and Identity Fraud...........................................................59Chapter Six: Work-At-Home Scams and Schemes [Employment]...........................................................73Chapter Seven: From Charles Ponzi to Bernard Madoff: The "Ponzi" and Other Investment Schemes......................80Chapter Eight: The Affinity Scam...................................................................................87Chapter Nine: Four (4) Things Not To Do When You Are In Debt.......................................................91Chapter Ten: Avoiding Debt Settlement Scams........................................................................96Chapter Eleven: The "Nigerian," The "Singapore," The "Irish Lottery," and Other Internet Scams.....................101Chapter Twelve: Home Improvement Consumer Secrets and Tips.........................................................122Chapter Thirteen: Dark Secrets of Credit Cards and Debit Cards.....................................................128Chapter Fourteen: Franchising— Opportunities and Scams.......................................................139Chapter Fifteen: Contract Law for the Consumer.....................................................................148Chapter Sixteen: Secrets and Tips for Avoiding Debt Collection Harassment..........................................156Chapter Seventeen: Recognizing and Avoiding Tax Debt Settlement Scams..............................................168Chapter Eighteen: Dealing with Government Agencies.................................................................173Chapter Nineteen: Avoiding Debtors' Prison In The United States....................................................177Chapter Twenty: Concluding Thoughts................................................................................186Summary: Legal Consumer Tips and Secrets...........................................................................195

Chapter One

Personal injury 101

He sure had me worried.

In a terrible accident one night at a railroad crossing, a train smashed into a car and pushed it nearly four hundred yards down the track. Though no one was killed, the driver of the car took the train company to court since he had suffered a personal injury.

At the trial, the engineer insisted that he had given the driver ample warning by waving his lantern back and forth for nearly a minute. He even stood and convincingly demonstrated how he'd done it. The court believed his story, and the personal injury lawsuit was dismissed.

"Congratulations," the lawyer said to the engineer when it was over. "You did superbly under cross-examination."

"Thanks," he said, "but he sure had me worried."

"How's that?" the lawyer asked.

"I was afraid he was going to ask if the lantern was lit!"

By definition, "personal injury law" is that area of the law designed to protect you—your body, mind and emotions—because of somebody else's act or failure to act. It is also known as "tort law." In a successful personal injury or tort action, the person who caused the injury or harm is called upon to compensate the person who suffered the losses. Generally, there are three established theories of personal injury or tort liability: negligence, strict liability and intentional misconduct.

The most common typical kinds of personal injury claims include traffic accidents, so-called "slip and falls", tripping accidents, accidents at work, assault and battery claims, accidents in the home, product defects or so-called product liability claims, inter alia. On a broader scale, "personal injury" can also include medical malpractice, dental malpractice, orthopedic (chiropractic) malpractice, and the category of industrial disease cases which encompass asbestosis and mesothelioma, emphysema, pneumoconiosis, silicosis, chronic bronchitis, asthma, chronic obstructive pulmonary disease and chronic obstructive airways disease, vibration white finger, occupational deafness, occupational stress, contact dermatitis, sarcodosis, post-traumatic stress syndrome (PTSS), and repetitive strain injury ["Nolo's Free Dictionary of Law Terms and Legal Definitions", Nolo.com, September 18, 2009; Black's Law Dictionary; Barron's Law Dictionary].

My main tip for the reader in this chapter on personal injury is that too many consumers who are victims of personal injury settle their cases too soon; without full and proper medical treatment and physical rehabilitation.

Negligence occurs when a person's conduct falls below a legally recognized standard of taking reasonable care under the circumstances to protect others from harm. Persons who act negligently do not intend to cause an accident that injures another person. Instead, their liability develops from careless or thoughtless conduct or a failure to act when a reasonable person under the circumstances would have acted. Negligence is the basis for liability in the majority of personal injury lawsuits, including automobile accidents and medical malpractice.

In the area of strict liability, designers and manufacturers are held strictly liable for injuries caused by their defective products. In strict liability cases, the injured person does not have to establish negligence by the user of the product. Instead, what the injured person needs to show is that the defective product was designed or manufactured in a manner that made it unreasonably dangerous or unsafe when used as intended. Strict liability is an important and growing area of tort law. It is, in effect, "liability without fault." [see, "strict liability", Barron's Law Dictionary & Black's Law Dictionary].

Intentional Misconduct claims are intentional personal injury to someone else, and "automobile accidents" are the areas in which the majority of personal injury actions arise. Automobile accidents provide a good example of how the tort system works. For example, a person has a negligence claim in a "fault" state (such as Maryland) when he or she is injured by a driver who failed to exercise reasonable care, because drivers have a duty to exercise reasonable care any time they are on the road. When drivers breach that duty and injury results to another, personal injury law, or tort law, says the injured person can recoup his or her losses. (Remember, though, the system may be very different in states that have passed "no-fault" laws.)

Intentional Misconduct claims of personal injury or tort liability must allege and prove more than just careless actions by another person. It must be alleged and proved that the offending person intended to engage in the offending conduct that he or she engaged in. From this conduct, the law infers and concludes that the offending person intended the consequences of his or her action. Further, in contrast to the negligence theory of liability for personal injury, the plaintiff (alleged victim) alleging an intentional tort does not need to show actual damages to recover. It is important to note that while perpetrators of some intentional torts—such as assault and battery, for example—can be held criminally liable for their actions, a tort or personal injury case is a civil proceeding in court brought by an individual or entity and remains totally separate from any criminal charges brought by the government.

Generally, civil law in the United States involves private lawsuits between two or more parties or persons, Personal injury and business disputes are just two examples. Criminal law involves what are considered offenses or crimes against the government. In most criminal matters, it is possible for parties or persons to go to jail or become incarcerated. It is exceedingly rare for parties or persons to go to jail in civil disputes in the United States [see, Understanding the Law: A Primer, by Attorney Charles Jerome Ware, Chap. 12 (Criminal Defense Practice), iUniverse Publishers (2008); and, Law Info, "criminal versus civil", www.lawinfo.com].

Automobiles are at the center of more lawsuits in the United States than anything else, and "automobile accidents" is the area in which the majority of personal injury actions arise.

According to the U.S. Centers for Disease Control and Prevention, in the year 2000 the estimated economic cost of motor vehicle collisions (MVCs), or "car accidents," was about $230 billion [Centers for Disease Control (CDC), www.cdc.gov/ motorvehiclesafety (2011)].

Every personal injury or tort claim—regardless of whether its basis is negligence, strict liability or intentional misconduct—has two basic issues: (1) liability and (2) damages. First, was the defendant liable for the damages you suffered? Second, if so, what is the nature and extent of the damages you suffered? If you can prove liability and damages, you are in the money; our American system of justice will award you compensation for your losses.

Some often-asked questions about personal injury, also with answers, are as follows:

1. Question: how do you know if you have a personal injury case?

Answer: It's simple. First, you must have suffered an injury to your person or property. Second, your injury must be the result of someone else's fault. Third, the injury must be the result of someone's unlawful action. Fourth, consult an attorney for verification.

2. Question: What kind of legal fees should I expect to pay in a personal injury case?

Answer: Personal injury lawyers generally charge their clients on a contingent fee basis. That means you pay your lawyer only if you win. You'll sign what is called a retainer agreement with the lawyer you choose to represent you, clarifying all fees and charges. Remember that even if you lose the case, you are likely to have to pay the expenses of investigating and litigating your case, such as court filing fees and payments to investigators, court reporters and medical experts, as well as the expenses of securing medical records and reports.

3. Question: Does a personal injury lawsuit have to be filed within a certain amount or period of time?

Answer: Yes. Each state has certain time limits called "statute of limitations," that govern the period during which you must file a personal injury lawsuit. Here in Maryland, that period generally is within three years of the date of the injury. If you miss the statutory deadline for filing a case, your case in all likelihood will be thrown out of court. Therefore, it is very important that you speak with a lawyer as soon as you receive or discover a personal injury.

In many cases, injured parties under the age of eighteen at the time of their injuries or accidents have until the day before their twenty-first birthday to start legal proceedings for compensation. Most courts have the discretion to extend or waive the limitation period if it is considered fair and just to do so. Another limitations exception is if the bodily injury is caused by accident, the three year or so limitations period can start from the date or point when the injured party knew or should have known that he or she had a claim [see, s. 33 Limitation Act 1980; Richard Beaman, "The Three Year Limitation of Claim," Douglas Wemyss Solicitors (Leicester), October 14, 2010].

4. Question: What if I get injured on the job?

Answer: In addition to the already discussed personal injury or tort laws, worker's compensation laws may apply to your on-the-job injuries. Worker's compensation laws, currently in place in all 50 states and the District of Columbia, cover most workers injured on the job. Under these laws, employers compensate you for your injuries, including medical expenses, lost wages (temporary disability) and permanent or temporary disability, regardless of who is at fault. All you have to do is file notice with your employer and a claim with the state's workers' compensation commission or board [see, "Workers' Compensation", infra].

5. Question: What is medical malpractice?

Answer: Medical malpractice is negligence committed by a professional healthcare provider—a doctor, nurse, dentist, technician, hospital or hospital worker—whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients.

6. Question: What do I do if I think I have a medical malpractice claim?

Answer: Talk to a lawyer who specializes in such work. Tell the attorney exactly what happened to you, from the first time you visited your doctor through your last contact with him or her. What were the circumstances surrounding your illness or injury? How did your doctor treat it? What did your doctor tell you about your treatment? Did you follow your doctor's instructions? What happened to you? Answers to these and other relevant questions become important if you think your doctor may have committed malpractice. Like other personal injury claims, the case will either be settled or go to trial, usually before a jury [and, see, Chapter 2: Medical Malpractice, infra].

7. Question: A disclaimer that came with the lawn mower said the manufacturer did not warrant it in any way. Will that defeat my claim?

Answer: That is a product liability issue. While limited warranties are sometimes enforced by courts, full disclaimers often are not. Courts find such warranties invalid because you, as the consumer, are not in an equal bargaining position. They also rule that such clauses are unconscionable (grossly unfair) and contrary to public policy. Most courts limit the effect of limited warranties to repairs. A limited warranty is not a waiver of liability for injuries.

Workers' Compensation 101

After many years in the business, an alligator wrestler decided to retire. Since he had paid his dues with many injuries on the job, he decided he should collect on his well-deserved benefits from his workers' compensation insurance.

He had an artificial right leg, a hook where his left hand used to be, and an artificial left eye. He was assured by his workers' compensation attorney that he would qualify for compensation if his injuries were work related.

"How did you get that artificial right leg?", the attorney asked. "I was hunting alligators in the Louisiana swamp when my boat ran ashore, causing me to fall in the water, and a large alligator snapped my right leg off", the alligator wrestler answered.

"Work related for sure," the attorney commented. `What about your left hand? How did you get the left hook?"

"Similar story," the man replied. "I was in my boat hunting for alligators in the swamp when a storm came up and rolled the boat. I fell out of the boat and a large alligator bit my left hand off."

"OK. That's work related too. Finally, how did you lose the left eye?" the attorney asked.

The alligator wrestler answered, "I was lying outside on my hammock at my boat house near the swamp when a bird flew over and unloaded itself into my left eye".

"So, what does that have to do with the loss of your left eye?" the attorney asked.

"I used my new left hook to clear my left eye!"

* * *

Workers' compensation, popularly referred to as "workers' comp", is a form of insurance designed to provide medical benefits and reimbursement for lost wages for covered employees who are injured on the job. In exchange and consideration for these benefits, the employee waives his or her rights to sue the employer for the tort of negligence. This tradeoff is often called the "compensation bargain."

Typically, workers' compensation will pay the employee's hospital and medical expenses that are necessary to diagnose and treat the on-the-job injury. Further, it can provide disability payments while the employee is unable to work (usually, about two-thirds of the employee's regular salary), and it may pay for the employee's rehabilitation, retraining, and some other benefits.

It should be noted that, although workers' compensation covers most on-the-job injuries, it does not cover all of them. There are limits to coverage. For instance, the following circumstances may not be covered by workers' compensation: If the injuries occurred because—

(1) the employee was intoxicated or using illegal drugs at the time;

(2) the injuries were self-inflicted;

(3) the employee was committing a serious crime;

(4) the employee was not on the job;

(5) the employee's conduct violated company procedures or policy.

Worker's compensation not only covers injuries on the job, it also covers long-term on-the-job health problems and illnesses. It is not infrequent for workers to receive compensation for injuries and illnesses that are caused by misuse or overuse of the body over a substantial period of time. Some examples of this include:

(1) repetitive stress injuries such as carpal tunnel syndrome and chronic back pain problems; and

(2) diseases and illnesses that are the gradual result of work conditions, such as heart conditions, lung disease, stress-related digestive problems (e.g., ulcers, etc.).

In the workers' compensation meaning, "on-the-job" refers to "job-related" injuries. For instance, the employee's "on-the-job" or "job-related" injury could occur while the employee is out of the office or building, traveling on work business, doing a work-related errand, attending a work-related seminar, convention, symposium, or other function; and even attending a work-required social function (such as an office Christmas party, etc.).

Finally, it must be noted that not all employees are covered by workers' compensation, because not all employers are required to have workers' compensation insurance coverage. State laws vary on this requirement, which ordinarily depends on the number of employees, type of business, and type of work the employee is doing. Further, every state excludes certain types of workers. These exclusions vary from state to state but may include, for example, farm workers, domestic employees, and migrant workers (seasonal or casual workers).

(Continues...)

Excerpted from Legal Consumer Tips and Secretsby Charles Jerome Ware Copyright © 2011 by Charles Jerome Ware. Excerpted by permission of iUniverse, Inc.. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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