Stoughton / Canton Area Personal Injury Lawyer - All Topics - Most Commented

Do You Know Who "Owns" Your Mortgage

Bruce Bierhans — Fri, 13 Feb 2009 14:17:42 GMT

I was in court the other day in Boston for oral argument in one of our predatory lending cases. I joked with the defense lawyer and asked if he knew who his client was today. When the case started, he represented Ameriquest Mortgage, which made the loan, Ameriquest Servicing, which serviced the loan, and Washington Mutual, who had purchased the loan. Sounds pretty easy, right?

Well...not so fast. Then, Citibank bought the servicing arm of Ameriquest and was servicing the loan, and Washington Mutual went bankrupt and JP Morgan then purchased some assets of Washington Mutual. To make matters even more complicated, if WAMU was the Trustee of a Securitized Trust, the Trust Fund still exists independant of WAMUS' failure. I'm sure I've lost you by now, and it also makes my eyes roll up in my head. However, what it does reflect is how difficult it is for the federal government, not to mention the consumer trying to modify their loans, to wrap their arms around the current situation and try to bring some sanity and order to the modification process. "Don't try this at home" as they say.

In courts nationwide, including bankruptcy court, lawyers are beginning to successfully challenge foreclosures by demanding information identifying the true "holders" or owners of mortgages. Where this cannot be done, cases brought by banks to foreclose are being dismissed. We intend to make this "holder" challenge in every case that we have.

The securitization process, i.e the bundling of loans, both good and bad, into investment packages sold throughout the world, is what has brought the international financial community to it's knees. They made the process so complex, even they didn't understand it. What a shame that their own arrogance and greed may turn out to be the tool that consumers and courts can use against them.

Originally posted at InjuryBoard by Bruce Bierhans

Swine Flu Vaccine Makers Get Immunity

Carrie Strasser — Mon, 20 Jul 2009 13:58:16 GMT

Secretary of Health and Human Services, Kathleen Sebelius, signed a document last month that gives vaccine makers and federal officials immunity from lawsuits that might arise surrounding any new swine flu vaccine. The Boston Globe reported last week that the immunity sought by drug manufacturers was spurred on by vaccines created for the last swine flu outbreak and the resulting thousands of lawsuits filed against those vaccine makers for side effects suffered from the shots.

The document signed by Secretary Sebelius allows for a compensation fund, if needed, for claims made against the drug manufacturers. The government has taken these steps in order to encourage drug companies to actually make the vaccine and so far, five manufacturers have contracted with federal officials to make a swine flu vaccine.

The last time the government faced a new swine flu virus was in 1976. Cases of swine flu in soldiers at Fort Dix, N.J., including one death, made health officials worried they might be facing a deadly pandemic like the one that killed millions around the world in 1918 and 1919.

Federal officials vaccinated 40 million Americans during a national campaign. A pandemic never materialized, but thousands who got the shots filed injury claims, saying they suffered a paralyzing condition called Guillain-Barre Syndrome or other side effects.

Because vaccines are not as profitable to drug companies as other products, many will not pursue the manufacturing of vaccines unless immunity is guaranteed. However, some worry about the costs to consumers. Because the government will most likely campaign for people to get vaccinated to prevent further spread of the disease, some question whether or not these people will truly be protected if they are actually harmed by the vaccine.

Originally posted at InjuryBoard by Carrie Strasser

The Bank "We Want to Help You" Scam Continues

Bruce Bierhans — Sat, 31 Jan 2009 15:33:06 GMT

A follow up to my recent comments regarding the banks repeated representations that they want to help homwowners modify their mortgages. Last Sunday in a local newspaper, , there was a letter written by a disabled mother of three. She had been working with at least 8 representatives of her mortgage lender that had represented to her that a modification was in the works. Nothing had yet been finalized and she still faced foreclosure. She was referred by the paper to her local HAC (Housing Assistance Corporation) . This week, we received a call from a woman that refinanced her home with Chase. Apparently, the lawyer (who may not be a lawyer) that closed the loan is nowhere to be found...nor are the refi proceeds. The bank is still threatening foreclosure. These stories are all too common. Every day, the banks run press releases indicating that they are modifying loans and want to help their customers stay in their homes. Yet,in our experience, even when confronted with undisputed evidence of fraud and violations of the Truth in Lending Act (TILA) and the Massachusetts Consumer Credit Cost Disclosure Act (MCCCDA), the banks are still defending against lawsuits rather than engaging in good faith settlement discussions. In addition to filing lawsuits, we have also been in touch with representatives of the Obama administration. We and our mortgage loan auditors have proposed ideas regarding solutions which would assist homeowners that were victimized by fraud, but have the wherewithal to pay their mortgages at reasonable levels and remain in their homes. Unlike John Thain, fromerly of Merrill fame, most consumers are not purchasing $1400 wastebaskets! At the moment, there is still an inaugural euphoria sweeping the nation. However, unless the courts and the Congress take steps to require the now "taxpayer owned" banks to act like responsible corporate citizens, that euphoria will diminish fast for those that have no place to live.

Originally posted at InjuryBoard by Bruce Bierhans

Another MBTA Accident

Bruce Bierhans — Fri, 30 May 2008 11:24:54 GMT

This week, another horrible accident happened on the T. Interestingly, a few weeks ago, another client contacted our office about an accident on the same trolley line. She indicated that the trolley was traveling so fast, she was thrown to the ground and injured. She asked that an accident report be prepared. However, the T has denied that one was ever prepared and also denys knowing anything about our clients incident.

The death of the operator is clearly tragic. However, it will certainly be interesting to see what comes out of this internal and NTSB investigation regarding this accident and safety of passengers on this particular line.

Originally posted at InjuryBoard by Bruce Bierhans

Are Your Financial Advisers' Investment Recommendations "Suitable"?

Bruce Bierhans — Mon, 02 Nov 2009 10:19:09 GMT

Recently, I concluded a case in which I represented a financial adviser for one of the largest brokerage firms in the country against the firm itself. The firm was attempting to enforce a Non Compete clause in the advisers' employment contract. In fact, the adviser had left the firm because she felt she was being forced to sell products that benefitted the firm that were not necessarily "suitable" for the client/investor, and we defended the case on that basis. I have had many similar cases in which I have represented advisers.

It appears as if the "suitabilty" argument, as well as issues relating to the fiduciary obligations of advisers to their clients is finally being recognized by the industry, including FINRA (Financial Industry Regulatory Authority). FINRA reports that this year, investors won 45% of the decided arbitration cases, up from 37% in 2007. They further reported that "suitability" claims "predominated" in the years filings. Simply, suitability means that the fiduciary is required to make recommendations based upon the objectives and risk tolerance of the investor. As we argued in the above case, if the fiduciary is selling or recommending a product because it might impact his or her compensation, suitability is taking a back seat to the priorities of the brokerage house and the adviser. A recent example of these types of cases include the "auction rate securites debacle" (about which I have written in the past).

There are currently many debates taking place within the industry regarding application of the suitability standard and what agency within the industry should enforce the standard. As stated by the Texas securities commissioner. "We have to make sure that from a policy perspective that we don't allow capitalism to destroy itself."

As an indivudual investor, be your own watchdog! Ask your adviser questions. If you don't know why an investment is being recommended, inquire. Ask your lawyer or accountant for advice , but don't be quiet or passive. If you believe you were placed in an investment that was not suitable for you, take action. You are ultimately, your own best advocate!

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Officials Warn of Risk of Suicide with Two Anti-Smoking Drugs

Carrie Strasser — Thu, 02 Jul 2009 09:58:23 GMT

The New York Times reported that federal drug regulators advised patients taking two anti-smoking drugs to watch for signs of mental illness because of an increased risk of suicide among the drugs' users.

However, officials stressed that patients should not stop taking these drugs all together, but just be aware of increased risk of mental illness.

The two drugs are Chantix, by Pfizer, and Zyban, by GlaxoSmithKline. Zyban is also sold under the name, Wellbutrin, which is used to treat people suffering from depression.

“Stopping smoking is a goal we should all be working towards,” said Dr. Curtis J. Rosebraugh, director of a drug evaluation office at the Food and Drug Administration. “We don’t want to scare people off from trying a medication that could help them achieve this goal. You should just be careful.”

Pfizer is going to add a black-box warning to Chantix packaging and Glaxo is going to expand its already existing black-box warning on Wellbutrin to include Zyban.

Both drug manufacturers are going to conduct clinical trials to determine the extent of the mental health risks associated with these drugs.

Officials for both companies explained that it was difficult to determine whether it was the drugs causing the increased depression and suicidal thoughts, or whether it was the nicotine withdrawal associated with patients trying to stop smoking.

Despite the fear that this latest FDA action would affect drug sales, analysts say that it probably won't have much of an effect because of the previous information related to these drugs and their side effects.

Among those using Chantix, FDA officials have received 98 reports of suicides and 188 reports of attempted suicides. With Zyban, officials discovered 14 reported cases of suicide and 17 reports of attempted suicide.

For more information about the FDA and prescription drugs, click here.

To read the FDA Press Release regarding these two drugs, click here.

Originally posted at InjuryBoard by Carrie Strasser

Vermont Legislature Passes Most Stringent Law Yet on Drug Makers' Gifts to Doctors

Carrie Strasser — Thu, 21 May 2009 17:36:52 GMT

The New York Times reported on Wednesday that Vermont is putting its foot down on medical industry payments and gifts to doctors and other health care providers. The law passed by the Vermont legislature requires drug and device manufacturers to publicly disclose all money given, including the names of the doctors gifts were given to, and the dollar amounts given.

This is the strictest state law yet because it would ban almost all industry gifts, like free meals to doctors, staff, pharmacists, etc. Other states have enacted similar laws. Minnesota requires the drug industry to report payments to doctors. Massachusetts limits gifts to health care practitioners and requires disclosure of payments over $50.

“This is a much more comprehensive law because it makes clear — whether devices, biologics or drugs are involved — the issue is inappropriate gift-giving,” said Sharon Treat, the executive director of a nonprofit group, the National Legislative Association for Prescription Drug Pricing, and a Democrat in the Maine House of Representatives.
...

Makers of medical products spent about $2.9 million in fiscal year 2008 on marketing to health care professionals in Vermont, according to a report last month from the state’s attorney general. Of Vermont’s 4,573 licensed health practitioners, almost half received remuneration, including payments for lectures, meals or lodging from pharmaceutical companies in the 2008 fiscal year, the report said.

The highest amount spent on one person in Vermont was $112,000.00 given to a psychiatrist. However, other specialists also received over $100,000.00 during the year. The Vermont Medical Society supports the bill and represents 65% of the physicians in the state.

Peter Shumlin, who is the president pro tempore of the Vermont state senate, hopes that Vermont could be a model for the rest of the country and emphasized that their goal was to advocate for public disclosure and not to prohibit the practice all together.

Originally posted at InjuryBoard by Carrie Strasser

MA Senate Rejects Damages Cap For Serious Personal Injuries

Carrie Strasser — Mon, 06 Apr 2009 09:59:16 GMT

The MA Senate was in the process of voting on a transportation reform bill last week, when Governor Patrick's proposed $100,000.00 cap on personal injury damage awards was weakened to include a loophole for serious bodily injury or death. The proposed cap was supposed to be in place for public transit accidents but Senator Steven Panagiotakos, a personal injury lawyer and Chairman of the Senate Ways and Means Committee, rejected the cap and added the exemption for death or serious injuries "resulting in permanent disfigurement, loss or impairment of a bodily function, limb or organ."

Transit authority officials say they have long sought a liability cap because those types of cases are unpredictable, tough to insure and the most costly. Eliminating large judgments, they say, could save the agency -- and taxpayers -- $2 million annually.

Senator Panagiotakos stressed the importance of protecting the common person who should be entitled to recourse in the case of death or serious injury while using public transportation.

However, states across the country have limited these types of damage awards in order to limit taxpayer exposure. Michael Widmer, president of the Massachusetts Taxpayers Foundation, explained that state agencies like the T are providing a public service to people and do not necessarily deserve to be punished like a for-profit corporation producing a faulty product that injures someone.

A spokesman for the Massachusetts Bay Transportation Authority explained that a damages cap could reduce its budget for personal injury claims 20-25% annually.

Senator Panagiotakos insists that by erasing the cap for only serious bodily injuries or death, that the bill provides unlimited recovery for only the most serious situations.

The MA House will consider the transportation reform bill this week.

Our office has experience handling mass transit injuries and can assist you if you have been injured. For general information on mass transit and related injuries, click here.

Originally posted at InjuryBoard by Carrie Strasser

Where to turn for mortgage help - and how to avoid being scammed

Olivier Kozlowski — Wed, 25 Mar 2009 09:51:44 GMT

You're trying to figure out how to make next month's mortgage payment. You heard something on the news about government help, but you don't know what's been passed and if you qualify. Meanwhile, you want make sure you don't pay money to somebody who won't help you at all. Where do you turn?

The scammers are out there; make no mistake. The schemes are creative, too. Deed us your house, we'll rent it to you and cover your mortgage. Meanwhile, you pay them, they don't pay your mortgage company and you're out in the cold - literally. Or you contact a loan modification company, they demand a large up-front payment and either do nothing or do what you could have done yourself.

Your first step, assuming you haven't already done so, is to use the 800 number on your mortgage bill. Call them and start a dialog. It can be frustrating at times. One person doesn't know what you told someone else last week, or you can't get a hold of a human being. But be persistent. If you're already behind on your payments (over 30 days late), your chances of refinancing with another lender drop substantially, so working out a deal on your existing loan becomes the focus.

Meanwhile, go to www.makinghomeaffordable.gov. You can - and should - do this at the same time you're working with your lender. This site is the clearinghouse for the mortgage relief that has been passed by Congress so far. It will take you through both options: the refinance and modification programs. There are lots of qualifiers on both plans, including who owns your mortgage, how much mortgage debt you have vs your house's value, etc., but the website is great at allowing you to input your information and get specific answers for your situation - without having to wait on hold for a human!

Be aware that as of this writing, one piece of the government's plan has not yet been put in place. That's the proposal to allow bankruptcy judges to modify the terms of your mortgage. So right now, if you file bankruptcy, you'll buy yourself a little time, but you'll still ultimately have to deal with the mortgage.

What about all those companies out there offering to work with you to get your loan modified? Be very careful, especially if they ask for money up front. Many of these companies may turn out to be either scams or simply overloaded with calls and not provide the kind of service you're paying for. Remember that you're probably going to be a much better advocate for yourself when it comes to talking to your mortgage company than someone who doesn't know you and isn't as up to speed with your financial information. And a word about up-front money: unlike paying a law firm a retainer, if you pay a modification company money, you're banking on their promise to deliver. When our firm gets a retainer from a client, it goes into a clients' funds account that's regulated by the state bar. We don't pay ourselves out of your money until we do the work.

So what kind of services do we offer? We can review your loan to see if there were any problems in its origination that would give rise to your right to cancel it, for starters. We can negotiate with your lender if you're not comfortable doing that yoursef, and we can advise you on the terms of any proposed modification you get from your lender. We can discuss with you whether bankruptcy is the best option. This, and much more is just a phone call away.

Originally posted at InjuryBoard by Olivier Kozlowski

Will you qualify for mortgage help?

Olivier Kozlowski — Mon, 23 Feb 2009 10:20:57 GMT

So, the President has announced his mortgage rescue plan - sort of. More details are expected to be released in early March. Meanwhile, you can check out the fact sheet here.

The big question on everybody's mind is whether YOU will qualify for help. The short answer is simply nobody knows yet. Remember, this is only a proposal, and it's got a long way to go to get through Congress.

So what's in it right now? Well, according to the fact sheet, it has 3 goals: 1) affordability, 2) stability and 3) supporting low mortgage rates by strengthening confidence in Fannie Mae and Freddie Mac.

Under "affordability," the proposal talks about giving homeowners refinancing options in the face of falling equity. Sounds good, and allowing homeowners to take advantage of today's low interest rates would go a long way. The proposal, however, seems to be limited to people who took out conforming (i.e., not sub-prime) loans that are owned by Fannie Mae or Freddie Mac.

Under "stability," the administration proposes a $75 billion fund. The ideas here are more varied, and claim to target people who are "at risk" of falling behind. There are rewards to be paid for making payments on time - to the borrowers, lenders and servicers. What's not really clear is how they intend to identify those people "at risk" of falling behind. Aren't we all, at this point?

Finally, the administration's plan seeks to prop up confidence in Fannie Mae and Freddie Mac. Not much there for the homeowner directly.

So what do we make of all this? Stay tuned. There really is no telling right now what this will look like when more details come out early next month or when (or if) it gets passed by Congress. You can, however, count on our office to keep you informed of what's coming down the pike and how you can best use it to your advantage. We've handled loan workouts, sub-prime mortgage litigation and short sales and would be happy to consult with you about your particular situation. Our staff includes a former in-house counsel to a mortgage lender and we have access to a nationally-known expert on lending matters.

Originally posted at InjuryBoard by Olivier Kozlowski