<![CDATA[John Gear Law Office & Salem Consumer Law    503-339-7787 - Law for Real People blog]]>Tue, 02 Feb 2016 23:08:55 -0800Weebly<![CDATA[The actually awesome "Notorious RBG" warns about forced arbitration]]>Wed, 03 Feb 2016 05:19:18 GMThttp://www.johngearlaw.com/law-for-real-people-blog/the-actually-awesome-notorious-rbg-warns-about-forced-arbitrationWhat a surprise -- one of the only Supreme Court justices to have ever represented real people instead of just corporations actually understands what the radical gutting of the Constitution and your 7th Amendment right to a jury trial is doing to America.
<![CDATA[ Don't get strangled by a dealer's yo-yo! Oregon law protects you if your dealer says you must return the car because your loan wasn't approved]]>Thu, 28 Jan 2016 23:06:31 GMThttp://www.johngearlaw.com/law-for-real-people-blog/-dont-get-strangled-by-a-dealers-yo-yo-oregon-law-protects-you-if-your-dealer-says-you-must-return-the-car-because-your-loan-wasnt-approved In Oregon, it is legal for a dealer to sell you a car with the financing not approved.

So there is often language in used-car sale contracts that says that you agree to bring the car back if the dealer cannot find a lender who will agree buy the loan that the dealer negotiated with you.

This is where the bad ones cheat you -- you drive off the lot and then you sink money into the car, and then they call you and tell you that your financing failed, and you have to bring the car back. Often, the dealer CAN find financing on the terms negotiated, but they won't end up making as much money as they hoped to -- so they decide to try the yo-yo scam on you (or "bushing").

(This is one reason not to put much money into a used car until the deal is "final final" -- one way dealers abuse consumers is that they will not give you any credit for the new accessories you put onto the car, and lots of times they have already sold your trade in. It's illegal, but it happens all the time. It makes you very vulnerable.)

Under Oregon law, if the dealer calls you and says your financing failed, they have to tell you that you have a right to get everything you put down on the car back (cash and trade-in), and when you go to take their car back, they have to actually have the keys to your trade-in and any cash you gave them sitting right on the table so that you can walk away completely and not do another deal with them.

NEVER agree to pay more than you already negotiated for a car or to accept a higher interest rate. The dealer can always carry your loan without selling it to a financing company -- and it's always better to get out of a deal where the financing fails than to make it worse by agreeing to pay more. (If your credit is so poor that no lender will take the original deal, how does it get better if you agree to pay more?) 

A dealer who tries to talk you into a different car or for paying more than you already agreed to pay is a cheat.
And don't think for a second you can outsmart a cheat at their own game. Once they are out to cheat you, your best bet is get away from them. If you buy a used car on contingent financing and then you get a call or text saying that you have to bring the car back:
  1. Get all your paperwork about the original deal and financing out of the car and the glovebox!  Do NOT give the original deal and financing paper to the dealer! You may need it later. Make sure the dealer can't destroy the evidence of the deal or make it hard for you to get!

  2. Have a friend drive a second car when you go to the dealer when you return their car, so that you have a ride home - DON'T let the dealer trap you at their dealership without a way home. If you can't find a friend to take you, bring cab fare.

  3. DON'T bring your kids and DON'T go just before work so that you are pressured to finish quickly or agree with the dealer to new terms!

  4. Take a sharp adult friend or family member with you to be a witness. Don't let the dealer separate you or isolate you
  5. Call a consumer attorney experienced in dealing with autofraud if the dealer fails to comply with any part of the law quoted below.
OAR 137-020-0020 (3)(z):

(z) Anti-Bushing Rule - In any transaction in which the dealer or broker has spot delivered a vehicle to a consumer and the consumer does not qualify for the terms offered, the dealer or broker shall, prior to offering, negotiating or entering into new terms for the purchase or lease of a vehicle:

(A) Inform the consumer that the consumer is entitled to have all items of value received from the consumer as part of the transaction, including any trade-in and down payment, returned to the consumer;
(B) If the consumer is physically present when the dealer or broker informs the consumer that the consumer does not qualify for the terms offered, return all items of value received from the consumer as part of the transaction; and

(C) If the dealer or broker informs a consumer by telephone or other means, without the consumer present, that the consumer did not qualify for the terms offered, clearly disclose the consumer's right to receive the immediate return of all items of value given by the consumer as part of the transaction when the consumer returns the spot delivered vehicle. Simply informing a consumer of the consumer's right to get back his/her down payment and trade-in and having the consumer sign a waiver or rescission form, without the actual ability for the consumer to have his/her down payment back and take possession of his/her trade-in, does not comply with ORS 646.877 . The consumer's down payment and trade-in must be actually available to the consumer should the consumer wish to rescind the transaction and not enter into a new transaction. If a consumer has paid a down payment with a check, the dealer is not required to refund the down payment until the consumer's check has cleared.

OFFICIAL COMMENTARY: This rule clarifies the Oregon "Anti-bushing" statute, ORS 646.877 , so that dealers and brokers clearly understand its requirements. This statute gives both dealers and consumers specific rights when it is necessary to unwind a spot delivery transaction. While the statute clearly states "the seller shall return to the buyer all items of value received from the buyer as part of the transaction," many dealers and brokers do not actually give or even offer the consumer the down payment and trade-in back before the dealer or broker tries to get the consumer to sign a new contract. Many dealers and brokers do not even have the down payment or trade-in readily available when they inform the consumer that the consumer needs to enter into a new contract. Simply offering to return the items of value and having a consumer agree to rescind the prior deal is not in compliance with the statute. The consumer has an absolute right to walk away from the deal if the original offer is not going to be honored. Without having actual ability to take possession of the trade-in and down payment, the seller has the ability to pressure a consumer into entering into a less favorable contract and has an uneven bargaining position. Having a refund check presently available and giving the consumer his/her keys with the trade-in vehicle immediately available is necessary for compliance.

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<![CDATA[IRS phone scam -- the real IRS NEVER CALLS! Do NOT return these calls!]]>Thu, 28 Jan 2016 22:19:14 GMThttp://www.johngearlaw.com/law-for-real-people-blog/irs-phone-scam-the-real-irs-never-calls-do-not-return-these-calls
<![CDATA[New Resource for Identify Theft Problems, English & Spanish]]>Thu, 28 Jan 2016 21:09:11 GMThttp://www.johngearlaw.com/law-for-real-people-blog/new-resource-for-identify-theft-problems-english-spanishPicture
The Federal Trade Commission just announced significant enhancements to IdentityTheft.gov – the federal government’s free, one-stop resource to report identity theft and recover from it.

New features on the site allow victims to:

·         Get a personal recovery plan that walks them through each step

·         Update their personal plan and track their progress

·         Print pre-filled letters & forms to send to credit bureaus, businesses, and debt collectors

No matter what the specific identity theft situation is, IdentityTheft.gov can help.
And, the entire site is available in Spanish at RobodeIdentidad.gov.
To help make sure that identity theft victims know about this free resource, you can:
·         Link to IdentityTheft.gov and RobodeIdentidad.gov from your website.

·         Update your identity theft print publications to include IdentityTheft.gov and RobdeIdentidad.gov.

·         Send a press release to your media networks about IdentityTheft.gov.

·         Distribute free identity theft materials in English and Spanish at your events. Order them free here.

·         Share on social media IdentityTheft.gov as the one-stop resource for victims of identity theft

·         Talk about IdentityTheft.gov in your presentations and seminars about identity theft.

<![CDATA[Good NPR Exposé on States Allowing Workers Comp Opt-Out]]>Fri, 22 Jan 2016 05:43:32 GMThttp://www.johngearlaw.com/law-for-real-people-blog/good-npr-expose-on-states-allowing-workers-comp-opt-outInsult To Injury: America's Vanishing Worker Protections

Federal Workplace Law Fails To Protect Employees Left Out Of Workers' Comp]]>
<![CDATA[Rubber Stamp Justice in the Mad Mad Mad Mad World of Debt Collection]]>Fri, 22 Jan 2016 05:18:20 GMThttp://www.johngearlaw.com/law-for-real-people-blog/rubber-stamp-justice-in-the-mad-mad-mad-mad-world-of-debt-collection
Every year, several hundred thousand people across the United States are sued by companies they have never done business with and may never have heard of. These firms are called debt buyers and although they have never loaned anyone a penny, millions of Americans owe them money. Debt buyers purchase vast portfolios of bad debts—mostly delinquent credit cards—from lenders who have written them off as a loss. They pay just pennies on the dollar but can go after alleged debtors for the full face value of every debt plus interest at rates that routinely exceed 25 percent.

Debt buyers also rely on tax-funded state institutions—namely the court system—to secure much of their income. Leading debt buyers rank among the heaviest individual users of state court systems across the US, and various legal actions and research, including that of Human Rights Watch, have identified repeated patterns of error and lack of legal compliance in their lawsuits. These problems are often discovered long after the debt buyers have already won court judgments against alleged debtors, a situation that arises because of the inability of alleged debtors to mount an effective defense even when they are on the right side of the law. Debt buyer lawsuits typically play out before the courts with a stark inequality of arms, pitting unrepresented defendants against seasoned collections attorneys.

The amount at issue in any one debt buyer lawsuit rarely exceeds a few thousand dollars, but the stakes are often higher than they seem. Many of the defendants in these cases are poor or living at the margins of poverty and this is often the reason they fell into debt in the first place. For them, the impact of an adverse judgment can be devastating. Human Rights Watch interviewed alleged debtors in court who broke down in tears while trying to explain how the judgments debt buyers had won against them would impact their ability to pay bills and support their children. . . .

Read the whole report here

<![CDATA[For those facing the lump-sum vs monthly pension question]]>Tue, 12 Jan 2016 21:38:28 GMThttp://www.johngearlaw.com/law-for-real-people-blog/for-those-facing-the-lump-sum-vs-monthly-pension-questionThe federal Consumer Financial Protection Bureau has a pretty fair new booklet that's easy to read and understand; it can't give you the answers for your particular situation, but it can help you know the right questions you need answers to before you decide how to sign up for your pension.
<![CDATA[The Bias Against Real People in Arbitration ]]>Tue, 05 Jan 2016 21:56:19 GMThttp://www.johngearlaw.com/law-for-real-people-blog/the-bias-against-real-people-in-arbitrationA heavy-hitter SF Bay-area attorney who works more for the defense than the plaintiffs' side notes the pervasive bias for the defendants and the cost to the civil justice system of the US Supreme Court's decision to abandon the Constitution and the 7th Amendment, which allows defendants to privatize and starve the justice system through the use of private forced arbitration.

Forced arbitration of consumer and employment cases robs the system of legitimacy and promotes abuses by corporate defendants, who are encouraged by being allowed to operate under a shield of pre-emptive cover for wrongdoing. And it destroys the foundation of the common law, the basis for the American civil justice.

Are you seeing a significant drop in the amount of jury trial work that's coming your way at the firm? No. We're not seeing a slowdown. We're recognizing a long, 10-year problem of a lack of civil jury trials in anything but product liability and personal injury cases. And that's not a slowdown. That's just the way it's been for a while.

How much of that do you attribute to the move towards more arbitration in the sorts of cases that used to produce civil jury trials? I think it's huge. I think the big cases that used to be tried to a jury are now going to arbitration because of the contractual terms usually imposed by one big party on the other side—whether it's an employment agreement, a merger agreement or certainly a consumer agreement. The defendants are successful at pushing cases to arbitration which is a forum that's favorable to defendants.

Do you do much arbitration yourself? Yes.

And how do you like it? I hate it. It lacks the formality of the court system and it lacks review of the court system. There's no discipline in it.

What about that lack of formality benefits defendants? You can be a conference room lawyer and make your way through an arbitration. You know you don't have to worry about punitive damages in virtually all arbitrations. You don't have to worry about the rules of evidence. And there are often limits on discovery that make it better for defendants than it is for plaintiffs. It's trial for the one percenters is the way that I think about it.

Just because of the odds being in the defense's favor? No. [It's because] of arbitrators. Not all [of them]. Some arbitrators are wonderful and as former judges still try to act like judges. But quite often they act like people who are there to kind of keep everybody happy. . . .

What might we be losing in terms of lawyering skills? It's not just lawyering skills. What we lose is law. When people go to trial and those trials are appealed and appellate courts write opinions, law develops and law changes and law evolves. When all of that happens in an arbitration context, nothing happens. The other things that obviously atrophy are jury trial skills. Judges don't get enough of them, so judges don't like civil jury trials—some judges, not all. The lawyers don't get enough of them, so they're scared of civil jury trials. Right now my understanding is that 1.2 percent of all federal civil filings end up in a jury trial. That means the jury trial is almost extinct and in England they are extinct.

Read more: http://www.therecorder.com/id=1202745461876/A-Litigators-Take-on-Arbitration-and-the-Demise-of-the-Jury-Trial#ixzz3wPQRz6kQ
<![CDATA[While doing your new year's planning, here's a worthy group]]>Tue, 05 Jan 2016 00:57:02 GMThttp://www.johngearlaw.com/law-for-real-people-blog/while-doing-your-new-years-planning-heres-a-worthy-group]]><![CDATA[NPR's "The Take Away" show looks under the rock at the debt collectors in the ooze beneath]]>Thu, 24 Dec 2015 05:46:24 GMThttp://www.johngearlaw.com/law-for-real-people-blog/nprs-john-hockenberry-looks-under-the-rock-at-the-debt-collectors-in-the-ooze-beneath
Click on image to go to interview (4:30)