Dear Clients, Colleagues, and Others,
The Huntley Law Firm has moved to
950 W Bannock Street
Boise, ID 83702
We look forward to seeing you.
Recently the Internal Revenue Service issued a warning regarding a nationwide telephone scam. Callers claiming they are IRS agents. They demand immediate payment of taxes and demand your credit card number. Anyone refusing to cooperate often is threatened with arrest, deportation, and/or the suspension of a business or driver’s license.
How to Identify the Scam
Under no circumstance will the IRS call and demand a credit card or debit card number over the phone – even if you legitimately owe money for taxes due. In fact, we do not believe that any legitimate creditor would engage in such behavior. You should never give your financial information to someone who called you.
What to do
If you believe you owe money to the IRS we recommend that you go to http://www.irs.gov/Payments and review your options. If you are unable to pay at this time, or believe that you do not owe the amount claimed, we encourage you to call our offices and consult with any attorney.
The IRS notice can be found at http://www.irs.gov/uac/Newsroom/IRS-Warns-of-Pervasive-Telephone-Scam.
When a property owner is unable to make the payments on his/her home loan that is secured by a deed of trust, and the payment becomes at least 3 months delinquent, a lender may decide to move forward with a foreclosure. In the state of Idaho, there are a number of recording and notification steps that either the lender or the trustee under of the deed of trust must take prior to actually holding the trustee’s sale (foreclosure). It is important for the property owner to be aware of these steps.
The first step that a lender must take is to record a notice of default in the county in which the property is located and send a copy of that notice to the property owner at the property owner’s last known address.
The second step is a notification that is to be sent by the trustee, providing notification of the date, time and place of the trustee’s sale. The notice is sent to the property owner and other interested parties. That notice must be sent by registered or certified mail no less than 120 days before the date set for the trustee’s sale. The notice sent to the property owner is to be sent to the last address the lender has on file for the property owner.
The third step involves publication of the notice of the trustee’s sale in a newspaper serving the area in which the property is located. The notice is to be published once a week for 4 consecutive weeks, with the last publication appearing no less than 30 days prior to the trustee’s sale date.
The fourth step also must be completed no later than 30 days prior to the date of the trustee’s sale, and that step is to attempt to serve a copy of the notice of the trustee’s sale on an adult occupant of the property. The maximum number of attempts to serve that notice is 3. In some cases, a notice of the trustee’s sale must also be posted on the property.
Effective September 1, 2011, new Idaho legislation put additional requirements on some lenders regarding some loans.
(1) The lenders that are affected are those that are “state or federally regulated.” As examples, any state bank or national bank would fall in that category, as would “Fannie Mae” and “Freddie Mac”.
(2) The loans to which the new requirements apply are those loans which are secured by a deed of trust, and also were made for a non-commercial purpose, and also are secured by the property owner’s “primary residence.”
The determination as to whether a property is the property owner’s “primary residence” is to be based 100% on whether a homeowner’s property tax exemption was granted for the year in which the notice of default was recorded.
If both to the lender as well as the loan itself meet the criteria, the new law makes two additional notice requirements:
(1) The first is a notice to be sent by the lender with the notice of default, and is to include:
- Instructions regarding how the property owner may obtain information about the current amount needed to bring the loan out of default; and
- A “modification request form” which can be completed and sent to the lender (within a very strict timeframe) requesting that the lender consider modifying the loan and, if the property owner chooses, request a meeting with the lender in person or by telephone to discuss the modification request. If the property owner follows the instructions as given, the lender is required to respond to the property owner within 45 days with an answer to the modification request. The lender may request additional information and documents from the property owner during that 45 days period. A trustee’s sale may not be held until an answer to the modification request has been given by the lender.
(2) The second new notification is a notice that must be sent by the trustee in the event a trustee’s sale is postponed. The notice is to provide the new date, place and time of the re-scheduled trustee’s sale and is to be sent by registered or certified mail no less than 14 days prior to the new trustee’s sale date.
While these notification additions to the law are important and an excellent step forward, the law does not provide that the failure of a lender or trustee to follow the new requirements invalidates a trustee’s sale nor does the law provide for a private cause of action to be brought by a homeowner against a lender or trustee for the failure to follow the new requirements.
Law Enforcement officers work for you, the taxpayer. They are here to protect and serve the public – YOU. However, on occasion, you may find that you have been arrested. Here are 5 important rules to remember:
- Remain calm and polite. Do not resist arrest, even if you believe the arrest is wrongful, illegal, outrageous, etc. If you think resisting arrest will avoid arrest, you are wrong.
- Tell the officer(s) that you choose to remain silent. Do not explain why you want to remain silent. Do not apologize for choosing to remain silent. Remember, you have already been arrested. The probability of you saying anything that would cause an officer to change his or her mind, right then and there, and “unarrest” you, is extremely remote. “Unarrest” isn’t even a word – we hope you will agree there is probably a reason it is not a word.
- Ask to speak to a lawyer immediately. Do not say anything, sign anything or make any decisions without first consulting a lawyer.
- You have the right to make a local phone call. You do not have the right to decide when that phone call will occur. Don’t hesitate to politely ask for your phone call as many times as needed.
- Be prepared. Take a moment to think about who you would call if arrested. Do you have their phone number memorized? Or is it on the mobile phone that you no longer have access to?
Very few people will ever be arrested at any time during their lives. However, on occasion, rightly or wrongly, it is better to be prepared and to follow these few, simple rules.
Telephone marketing is a common enterprise and, while most are legitimate businesses selling legitimate products, we all know someone who has found themself caught up in a scam sold to them over the telephone. It was for that very reason that the Idaho Telephone Solicitation Act came into being.
Among other things, the Act requires that all telephone solicitors register with the Idaho Attorney General at least 10 days prior to conducting business in the state of Idaho — and that registration is valid for only one year. The solicitor must provide that registration number to any potential purchaser who requests the registration number.
At the time the purchase is completed, the telephone solicitor must verbally inform the purchaser of (1) the purchaser’s cancellation rights in the state of Idaho (those rights are explained below); (2) provide the solicitor’s registration number; and (3) provide the solicitor’s full street address and telephone number.
Unless the purchaser has an unqualified right to return the goods or cancel the services and receive a full refund, the telephone solicitor must send a written confirmation of the purchase. That confirmation must also notify the purchaser that the purchaser has three business days from the purchaser’s receipt of the written confirmation to cancel the transaction without any penalty or obligation whatsoever.
The confirmation to the purchaser must also tell the purchaser how and where to send the cancellation and that, if the purchaser cancels the transaction within the three business day period, all payments made by the purchaser will be returned within ten business days of the telephone solicitor’s receipt of the cancellation request. The confirmation must tell the purchaser that, when the full refund has been received by the purchaser, the purchaser must return the goods to the telephone solicitor at the solicitor’s expense within twenty-one days of the purchaser’s receipt of the full refund.
The Consumer Protection Division of the office of the Idaho Attorney General is very responsive to complaints from citizens regarding violations of the Act, and has actively communicated with telephone solicitors who do not follow the requirements of the act. When a telephone solicitation is received for the sale of products or services, a good first question should always be, “And what is your telephone solicitation registration number with the Attorney General’s office?” The answer to that question may be helpful in deciding whether you want to continue with the conversation.
I am a former prosecuting attorney, but have devoted most of my career to defending criminal defendants. It is a privilege to work at The Huntley Law Firm with a team of good lawyers with diverse experience. I like that LegalShield (LS) helps members solve many problems without a lawyer, and provides legal resources for under market cost when a lawyer is necessary.
At the outset of becoming a criminal defendant, or even a “person of interest,” you don’t need to know the law. You don’t need to know what is likely to happen, or if the authorities are “right, wrong or off base.”
YOU DO NEED: To keep quiet. Please see the numbered instructions below for instructions on how, and its effects in two common situations.
ENTERING THE SYSTEM: Virtually all defendants begin their journey through the legal system without an attorney. They enter in two principal ways: they are either (1) arrested or (2) summoned (a traffic ticket contains a summons at the bottom; whether the defendant signs is of no consequence; he is formally served). Less commonly they are (3) approached to “talk” as part of an ongoing investigation.
After first, foremost and continuously refraining from talking, you must get out of jail, if in custody. In all cases you need to step back with your trusted advisors and support system. LS is perhaps one of the best. We like to think we know a lot that can help. But first help yourself.
This article tells you how.
NAVIGATING OUT: Getting out of jail occurs in isolation from the support system necessary to make the absolutely best decision. Deciding how to respond to a summons likewise requires learning all the options, and how to best use your limited resources to protect your interests. So my advice is: know that you likely have a support system. Use it. Lawyers can come later.
Legal Shield’s Emergency Line is invaluable for friends and family calling on your behalf. It is less useful as defendants’ “one phone call” from jail. Only if you have a summons for a court date, or approached by law enforcement to “talk,” should you use this. Only after securing release from jail will it be of much use. Instead, in the two most common situations (arrest or summons):
- Do not talk to any member of law enforcement about the situation. Ask for a lawyer.
- Ask for a lawyer clearly, from the beginning, and repeatedly.
- If you can’t get one by your side, police are obligated to get you a court-appointed lawyer — or stop asking questions.
- In the case of traffic stops involving alcohol, there is an exception to this for evidentiary testing. That involves officer-initiated conversation as a “tool of investigation.” To protect yourself, say as little as possible. Let the test(s) speak for themselves.
- If arrested, See RULE ONE.
- If arrested, BOND OUT with cash if you can raise it from family or friends. Use a surety bond company if you cannot.
- Legal defenses available can always be applied after release;
- Release alone will materially improve your case.
- If summoned – or approached by law enforcement as part of an investigation — call the LS main line. Do it in sufficient time to learn what you can do before the court date, or before law enforcement wants to see you.
- You can discuss — at length with LS, not law enforcement — the nature of the allegations. You can learn what is going on. You can develop a plan for marshaling available legal assistance.
- In most (misdemeanor) cases, you will be able to avoid going to court if you are in a position to obtain counsel.
THE ROLE OF THE LAWYER: LS’ Emergency Line and 4-hour callback by an attorney are always available. Either before a summons is received, after you are out of jail, if you are a “person of interest,” or if you are actually in custody. However, as noted above, getting out is the most important thing.; It is either unimportant or even a diversion – at the stage of being in custody – to try to understand why you’re there, or if it’s right or wrong.
This is why I strongly recommend marshaling your personal supportive resources – if in custody – prior to using LS’ Emergency Line. The best thing defendants can do for themselves is be silent. Lawyers can do the rest. And we can do it later, if we have a defendant who’s out and not in.
If a bond is too high for release, you will likely receive a public defender. Your rights will be protected. Defendants can change attorneys at any time, and substitute a LS or any other attorney for the public defender. When you and your support system arrange for your release, you can evaluate this option with them and with LS.
SUMMARY: The main point of this note: LS members are in a position to step back from the overwhelming stress and strangeness of criminal charges. Because they have immediate access to attorneys, they can focus and act on what can be done in the short term. LS has many resources early, often and as criminal cases go forward. This note should equip you with what you need in the very beginning, before legal resources are really needed. Call us early, often and whenever a problem with law enforcement is possible.
Those who impersonate police officers erode the public’s trust in law enforcement and may endanger unsuspecting people. There are several tips you can remember to protect yourself during a traffic stop while helping your police officers do their jobs.
- Make sure it is a marked police unit. If it is not a marked unit, the emergency lights should be built in and are usually not a temporary light placed on the vehicle. You may call 911 to verify that an unmarked police car is in your area.
- Try to stop in a well-lit area or a location where there are a lot of people present.
- Turn on your emergency flashers but don’t turn off your car.
- Do not get out of the vehicle to meet the officer. Officers usually don’t like this anyway.
- Lock your door.
- Look for a uniform, official department jacket, and other equipment used by police officers for the performance of their duties.
- If the officer is in plainclothes, look for identifying clothing and equipment. If unsure, explain to the “officer” that you are unsure about the situation and ask them to display official department identification and badge. Ask where they work and if you can contact their dispatch center to confirm their identity. You may also request a marked patrol unit respond.
- Pay attention to what they are asking. Most officers will advise you of the reason for the stop and request your driver’s license, registration, and proof of insurance.
- If they immediately tell you to get out of the car without any preliminary questions, be suspicious.
- Trust your instincts. If they don’t seem to be a real police officer they are probably not.
These tips are courtesy of the Oregon State Police.
If you have any questions, please feel free to call the Huntley Law Firm at 208.388.1230.
Given the difficult economic times, many Consumers have had difficulty making payments on Consumer debts, such as medical or credit card debt. When that occurs, it is not unusual for the creditor to begin attempts to collect on that debt either by making direct contact with the Consumer or by turning the debt over to some third-party for that collection effort. The federal Fair Debt Collection Practices Act contains many protections for the Consumer under those circumstances.
Under that act, the following are actions that the creditor or the third-party collector may NOT take when making that collection effort:
- The creditor or debt collector may not telephone the Consumer at the Consumer’s place of employment unless the Consumer has provided that telephone number to the creditor or debt collector as a contact number.
- The creditor or debt collector may not send written collection notices to the Consumer’s place of employment unless the Consumer has provided that address to the creditor or debt collector as a contact address.
- The creditor or debt collector may not threaten the Consumer with arrest and criminal prosecution.
- The creditor or debt collector make not make repeated calls in one day if the creditor or debt collector has made actual contact with the Consumer on that day.
- The creditor or debt collector may not share information regarding the alleged debt with the Consumer’s neighbors, friends, or family members for purposes other than location information.
- Communications from the creditor or debt collector may not contain threatening and scurrilous remarks or routinely consist of a series of such statements constituting unfair and unconscionable tactics. False, deceptive and misleading statements are prohibited.
- The creditor or debt collector may not threaten legal action unless it has the right, authority, immediate ability or intention to actual bring such legal action.
- The creditor or debt collector may not threaten to increase the amount of the alleged debt unless the contract between the creditor and the Consumer allows for that increase.
- The creditor or debt collector may not have add fees, penalties, or charges to the Consumer’s account unless the contract between the creditor and the Consumer allows for those fees, penalties, or charges.
- If the Consumer requests in writing that documents verifying the debt be provided, the creditor or debt collection agency may not resume collection activity before or without providing verification documents, nor may the creditor or debt collector report any negative information regarding the alleged transaction to the Consumer’s credit reports until such verification documents have been provided.
On the other hand, there are actions under the act that the creditor or debt collection MUST take:
- The creditor or debt collection must communicate with the Consumer only in writing via the United States Postal Service if the Consumer makes that request in writing.
- If the collection effort is being made by a third-party debt collector, ALL CONTACTS with the Consumer must state, “I am a debt collector, this is an attempt to collect a debt, and any information obtained will be used for that purpose.”
- If the collection effort is being made by a third-party debt collector, the debt collector must send written notice of the Consumer’s Rights within five days of the collector’s first contact unless full disclosure of all required information is recited in the initial contact.
- If the collection effort is being made by a third-party debt collector, the collector must inform the Consumer of the right to dispute this alleged debt within 30 days of the collector’s initial notification.
- If the collection effort is being made by a third-party debt collector, the collector must provide the name and address of the original creditor and the account number on that underlying account if requested in writing by the Consumer.
- If the Consumer requests in writing, the creditor or debt collector must validate the alleged debt by providing documentation which addresses the actual facts disputed by the Consumer. It is not sufficient for debt validation for the creditor or debt collector to merely provide a copy of a previous billing statement.
Each of the referenced “musts” and “must-nots”, if not properly performed by the creditor or debt collector, may constitute a separate violation of the Fair Debt Collection Practices Act. The act provides for a $1,000 per offense penalty for those violations.
Police officers are employed to protect and serve YOU. Frequently they cannot do their job without the help of witnesses, victims, and everyday citizens. However, you may find that you are the subject of an investigation and these 5 important rules may help.
- Be Polite and stay calm. Even if you are innocent and the police are completely wrong, now is not the time to vindicate your rights. Don’t run. Don’t argue, resist or obstruct the police. Keep your hands where the police can see them. Even if you are completely innocent, imagine that officer believes that you are a dangerous criminal – and behave in a manner that will assure the officer that you are not a current physical threat to him or her.
- Ask if you are free to leave. If the officer says yes, calmly and silently walk away. If you are under arrest, you have a right to know why.
- You have the right to remain silent and cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud. In some states, you must give your name if asked to identify yourself.
- You do not have to consent to a search of yourself or your belongings, but police may “pat down” your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search. If you do consent, it can affect you later in court.
- You may ask to speak to a lawyer. You do not have the right to speak to a lawyer unless you have been arrested. If you aren’t sure if you have been arrested, you may ask the officer if you are free to leave (see 2 above) or if you have been arrested.
There is no reason that a conversation with an officer need be confrontational or unpleasant. As soon as practicable, write down the name of the officer, a badge number, and whatever you can remember from the conversation. You have rights. If you believe your rights have been violated or you have questions or concerns contact an attorney.
- Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.
- Be safe and avoid Police Impersonators. If the officer is in an unmarked car and is not wearing a uniform, see our 5 Important Rules for Avoiding Police Impersonators
- Upon request, show police your driver’s license, registration and proof of insurance.
- If an officer or immigration agent asks to look inside your car, you can refuse to consent to the search. But if police believe your car contains evidence of a crime, your car can be searched without your consent.
- Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.