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    Edelman, Combs, Latturner, & Goodwin, LLC

    20 South Clark Street
    Suite 1500
    Chicago, IL 60603

    info@edcombs.com
    Phone: 312-739-4200
    Fax: 312-419-0379


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    Archive

    NCO data breach

    Sunday, April 27th, 2014

    Please contact us if  you have been notified by NCO Financial Systems that your  personal information may have been exposed.  You may have a claim as a result.   The information included  the affected customers’  names, addresses, Social Security numbers and account numbers.

     

    Regional Asset Management

    Saturday, April 26th, 2014

    Please contact us if Regional Asset Management, Chicago, Illinois, is attempting to collect a debt from you.

     

    No right to rescind car purchase

    Thursday, April 24th, 2014

    Question: How do I rescind a car purchase?  I bought the car on Saturday and now I realize I cannot afford it.
     

    Answer:  Illinois law does not provide for any period for rescinding a car purchase.   The time to ascertain whether you can afford the car is before you sign, not afterward.

    Occasionally a dealer will agree that you can reconsider and cancel a transaction within a certain period, or so you can take the car to a mechanic for inspection.  If that is the case, make sure that promise is in a signed writing.

    More frequently, a dealer will condition the sale on its being able to sell the contract to a finance company within some period.  If the dealer is unable to do so, there is no transaction, with a possible exception if the dealer is willing to honor the finance terms itself.  If the deal cannot be financed on the terms specified, you have the right to return the car and get all money / trade in vehicles back, without deduction.  815 ILCS 505/2C.    You are not required to agree to any terms that are different from those originally agreed to, make a larger down payment, obtain a cosigner, etc.

    National Credit Adjusters

    Wednesday, April 23rd, 2014

    Please contact us if National Credit Adjusters has attempted to collect a loan from you.

    Forced arbitration — General Mills backtracks

    Sunday, April 20th, 2014

    Public complaints force General Mills to scrap its forced arbitration plan.

    In April 2014, General Mills posted new legal terms to its website eliminating customers’ right to sue the company.

    The terms required  “all disputes related to the purchase or use of any General Mills product or service to be resolved through binding arbitration.”

    As a result of public outrage, the company  announced it was voiding those terms.

    General Mills brands include popular cereals like Cheerios and Wheaties, baking products like Betty Crocker and Pillsbury, and other food lines like Progresso soups and Häagen-Dazs ice cream. The legal terms change was first reported by the New York Times.

    Virtually every major company has legal terms or terms of service to which customers consent when they make a purchase or provide personal information. Some include an agreement that disputes and any damages be settled by an arbitrator, rather than a judge or jury. Consumer advocates say arbitration is generally business-friendly and eliminates customer protections like class-action lawsuits.

    The controversy over the General Mills terms arose from a conception that it applied very broadly — including interactions on social media where, for example, the company may provide coupons. If the customer accepted the coupon, he may agree to the terms without knowing it.

    Before it canceled the terms, General Mills said that was a “mischaracterization.”

    “No one is precluded from suing us by purchasing our products at a store, and no one is precluded from suing us when they ‘like’ one of our Facebook pages,” spokeswoman Kirstie Foster wrote in a blog post.

    The company stood by that position when it changed course over the weekend:  “Those terms – and our intentions – were widely misread, causing concern among consumers,” Foster wrote. “So we’ve reverted back to our prior terms. There’s no mention of arbitration, and the arbitration provisions we had posted were never enforced. …

    “We’ll just add that we never imagined this reaction,” Foster continued. “We’re sorry we even started down this path.”

    In fact, there are recurring court cases involving claims that someone who used a website or purchased something on the internet agreed to arbitrate.  In many cases, the reference to arbitration is buried in the site or within a document located on the site, and is not readily apparent to the consumer.

    Delayed medical bill

    Saturday, April 19th, 2014

    Question: Is there a time limit on how long a business can wait to send an additional bill for services rendered?  I received a bill for  a health device which was covered in part by insurance. The person in the doctor’s office  called the insurance company and I was told how much I would owe and paid the total amount that day. A year and 5 months later, I received a bill for $111+ and was told when they were matching their Explanations of Benefits  they found my insurance company did not pay as much as they should have. I have not been given any figures and have no way to verify this information.
    Answer:   The statute of limitations  is four years for the sale of goods and  five years for a contract for services not wholly in writing.

    There may also be provisions in the contract between the doctor and your insurer that limit the doctor’s ability to submit a bill.  Often, such agreements provide that any bill must be submitted within one year.  Submit the bill to your insurance carrier and ask that they either pay it or take action against the doctor for submitting it so late.

    Additional questions are raised by why your insurer refused to pay.  Generally, insurance policies provide for payment of reasonable compensation for medically necessary services.  Often, they limit the amount which the doctor can receive on some negotiated basis.  If the reason the insurer refused to pay more was that the amount sought was excessive, the device was not medically necessary, or the doctor had agreed to take less, you are not obligated to pay the extra amount, and you should refuse to pay more.

    You should not in any circumstances just ignore the bill.  Document any refusal to pay and the reasons.

    Forced arbitration

    Saturday, April 19th, 2014

    Another article about General Mills, this one from MSNBC.   If you agree this is outrageous, let General Mills know at http://www.generalmills.com/en/ContactUs.aspx

     

    General Mills cereals.
    General Mills cereals.
    Rick Wilking/Reuters

    How the Supreme Court made it harder for you to sue

    —UPDATED 

    Many people quickly gloss over a terms of service agreement at one point or another, an easy enough feat when making online transactions. But few would assume that simply visiting a website or interacting with a brand on social media would amount to signing a contract.

    Yet as first reported by the New York Times, General Mills, manufacturer of cereals and other foods, instituted a new policy that appears to bind anyone who so much as downloads a coupon or likes General Mills on Facebook to an arbitration agreement should they try to sue. The Times reported that General Mills has altered its policy after negative feedback generated by its article. The company claims that the new legal policy was “broadly mischaracterized” in media reports and that the policy has not been changed.

    Many companies compel consumers into arbitration agreements – private legal proceedings used to settle disputes – just by purchasing their products, but General Mills’ policy, which states that “use of any of our sites or services, or participation in any other General Mills offering, means that you are agreeing to these Legal Terms,” appears to make a broader claim, in that you don’t even have to buy anything or click “I agree” on one of those lengthy service agreements to be bound by their terms.

    In a blog post, a General Mills representative appears to write mere “use of any of our sites” out of triggering the terms, stating that “when consumers interact with us online, such as subscribing to an online publication, entering a sweepstakes, or downloading coupons from websites such as Pillsbury.com or BettyCrocker.com, we list the legal terms guiding that interaction. These terms kick in only when you engage and agree, but even then, nothing in the policy precludes a consumer from pursuing a claim.”

    So, to use an example given by the Times: if you were allergic to an ingredient in a General Mills product that was mislabeled – too bad, you’ve already given up your right to sue, no matter how dire the consequences.

    “What General Mills is really doing is testing the extent to which they can impose these adhesion contracts on unaware customers,” said Reuben Guttman, a board member at the American Constitution Society and a partner at Grant & Eisenhofer. “The average person doesn’t retain counsel to buy cereal.”

    This may all sound far-fetched, but the only reason General Mills can even consider going this far is that American courts over the last few decades have tilted the playing field in favor of corporations trying to avoid lawsuits – and few have been as friendly as the Supreme Court under Chief Justice John Roberts. Companies have tried hard to ensure that disputes don’t make it into a courtroom, where damaging information can come out, but are rather funneled into private arbitration procedures, where the outcomes are often more favorable to the company.

    “Over the last probably two decades, the court has been moving in a very pro-arbitration direction, making it increasingly more difficult for everyday Americans to have their claims against corporations brought before a court of law,” says Elizabeth Wydra of the Constitutional Accountability Center. “The Roberts court has taken this to an extreme.”

    In 2010, the Supreme Court ruled in Rent-A-Center v. Jackson in favor of a company that compelled its employees to sign a forced arbitration agreement as a condition of employment, even if the employee had no meaningful way of refusing the agreement other than by walking away from the job. In 2011, in AT&T v. Concepcion, the high court made it far more difficult for consumers to file class-action lawsuits against companies ruling that federal law protected the fine print in a cell phone contract that barred consumers from bringing them. So companies know that those agreements that we tend to gloss over when we’re buying a phone or signing up for a credit card, that set up terms through which the company itself will rarely lose, are perfectly safe.

    Although we don’t know whether the courts would agree with any company that contended that you sign a contract if you visit their website, follow them on Twitter or “like” them on Facebook – and General Mills has now said its legal terms wouldn’t apply to the latter two examples – the new policy is just testing the limits of how far the legal system is willing to let companies go. In Concepcion, the Supreme Court ruled that their interpretation of federal law governing arbitration agreements superseded a California state law barring “unconscionable” contracts, so it’s not like more liberal states force stricter rules on companies as a condition of doing business there.  Even having to go to court to decide whether or not the arbitration agreement applies could cost more than the restitution a potential plaintiff is seeking, thus dissuading them from trying to go to court in the first place.

    Some justices on the high court also clearly believe that if you’re swindled by a terrible contract, even one you had little choice in agreeing to, well, that’s your problem. Justice Scalia, who at oral argument so often expresses in less polite terms what the rest of his conservative colleagues on the court are actually thinking, made his perspective clear during oral arguments in the Jackson case in 2010.

    “It doesn’t seem to me that unconscionability is the same as duress or the same as fraud,” Scalia said at the time. “You can be a stupid person who voluntarily signs an unconscionable contract.”

    When it comes time for General Mills or some other company to argue before the high court that a consumer ceded their legal rights through a casual interaction on social media, the court may decide that even if the legal terms are unconscionable, well the real problem is you. Because you’re “stupid.”

    Explore:

    disposition of car you signed for

    Friday, April 11th, 2014

    Question: If I cosigned for an auto loan and the person I signed for passed away, am I responsible for the loan if I turn the car in?
    Answer:   Yes.  They will sell the car at a low price at an auto auction and hold you liable for any deficiency (difference between the sales price and the debt.)

    If you have title to the car (e.g., it was held in joint tenancy  with right of survivorship), check the value in one of the standard price guides, take it to a dealer and offer to sell it.  Get a quote in writing.  Send the quote to the finance company and ask them to release the title for payment in that amount.  You are still liable for any deficiency, but you are likely to get more than it would bring at an auction.  If the finance company refuses to release the title, they may have violated the law and either barred themselves from recovering a deficiency, given you a claim for statutory damages, or both.  A creditor is required to act in a commercially reasonable manner and to mitigate the damages resulting from such events as death of a borrower.  Unless the ground of refusal is that the car can reasonably be expected to bring more than what you propose to get for it, it would not be acting in a reasonable manner.

    liability for debts of spouse after divorce.

    Friday, April 11th, 2014

    Question: Can the courts still hold me liable if in my divorce decree I am to be held harmless of the judgments on my credit that my husband is responsible for?    I went through a divorce in 2010. My ex husband is to be responsible for certain judgments. I recently sent a copy of that paperwork to all 3 credit bureaus and all of them deleted those judgments from my credit.

     

    Answer:  You can be held liable.   A divorce decree or separation agreement deals with the liability of spouses between themselves.  If a creditor extended credit to both of you, it can hold both of you liable regardless of such agreements/ decrees.

     

    debts of spouse prior to marriage

    Friday, April 11th, 2014

    Question: Will I incur my finance’s debt if I marry him?   We are planning to marry and I am debt free, he has some large debt. I do not want to incur those. Will there be a problem? He did put me on his credit card so I could use it when I wanted to. But I still have my own.

    Answer:  You are not liable for charges on a credit card  unless you are a joint obligor on the card on which the charges were made.  An authorized user is not liable.  However, an account for which you are an authorized user will be reported on your credit report unless you object.  Reporting of card on which you are an authorized user was instituted  to protect married women, so that upon divorce/ death of husband they would not be completely without a credit history.  It is generally not a good idea to be an authorized user on a card which has  a poor payment record or a large balance.