Curtains

 

            What is an office without curtains?  Well a bright one, or a cold and drafty one.  But is it also a bare one?  I’m not sure.  Did or do clients think that an office without any window covering as non professional.  Fly by night even?  I couldn’t tell you.  I can tell you that buying curtains is a not only a big expense, most certainly when you have 92 inch windows, but it is also a very difficult and daunting task.

            This past week we finally picked up a set of curtains that we liked enough to keep up for the whole week.  I’m not sure that they are perfect but I think they are pretty close.  The problem is that this is not our first attempt at office window covering. 

When we first moved in 10 months ago we went out and purchased a decadent set of curtains.  In order to figure out the world of curtains we had to speak with an expert.  Turns out you can’t just purchase two sheets of cloth and hang them up there.  You need sheers, valances, and sometimes depending on the panel you may even need more than two just to cover one window. 

In our early office days we went all out.  We got all the accoutrements to cover the windows with class.  We picked the fanciest materials to really wow our clients.  Unfortunately, due to the large window size we had to wait for the curtains to come in.  When they got here and we put them up… Well… They kind of looked cheap, or maybe over done. 

Our office is fancy.  If you haven’t stopped by yet, you should.  It’s in an old building, actually the Edward Haskell House at 345 Union Street, on the corner of Union and Cottage, here in Historic New Bedford.  We figured that the conference room was so fancy that so should be the curtains.  We returned them.

The one good thing to come out of that first experience was that we did end up keeping the sheers.  They added a light touch and some privacy to the office without making it look smaller or busy.

We had many other attempts at curtains since then.  We didn’t bring any back though.  Not until the weather in February and March seemed so cold that we needed to keep the cold out somehow.  Oddly enough, a week after putting them up, we’ve had the warmest week on record.

All in all I’m very happy with the purchase.  They are a reddish color (sorry, I’m a Crayolla 8 pack, not a 64).  They also say that they are an energy saver, keep the heat out or the cold out depending on the time of the year.  The worst part about the whole ordeal is that they only had 6 panels.  That’s right I’ve still got another two windows that are just sheers, and they are probably going to stay that way for another 10 months.

Someone Owes you Money

The world of debt collection is clouded with pictures of a poor family on their last leg, paying for electricity to heat their studio apartment with a credit card that is far overdue in payments and about to be declined when they try to buy their next meal.  Then the debt collector calls the poor family and hounds them until they pay up.  No one likes that damn debt collector.  This, of course, is an extreme case that unfortunately unfolding a multitude of times a day across the country.  It may not be instantly apparent, but debt collection does keep businesses going.  If no one had to pay – would you?

This is a quick overview of collection practices.  There are two types of debt, commercial and consumer.  The ways that they are collected are quite similar except that when it comes to consumer debt. 

 When dealing with consumer debt there are many more issues and laws to make sure that you, or your attorney are complying with.  The Fair Debt Collection Practices Act (FDCPA) was created and is enforced to protect consumer debtors from a myriad of prohibited practices that debt collectors have used to get payments from debtors.  These practices include calling debtors at midnight or calling them at work.  It is important for debtors of consumer debt to know their rights.  You may be a deadbeat that never intends on paying for something you bought, but you shouldn’t have to be treated like one.

Here at our law office we like to deal with commercial debt.  Generally, if you are a business and you sold goods or services to another business and they did not pay for them, you have a right to sue for the money owed.

Jurisdiction

            If you are owed $2500 or less you should take your claim to small claims court.  It is cheaper to file and everything about it is faster and easier.

            If you are owed $2500 or more you must take your claim to the District Court.  At the District Court you should have an attorney and the process will cost more to file your complaint and will take longer for it to be resolved. 

            If you are owed a substantial amount of money you should definitely contact your attorney and they will file the case in the Superior Court.  This is even more expensive, and the trial wait times are even longer.   

Contract

            Most Commercial collections cases are based on a contract that was fulfilled but not paid for in full.  Now one important issue is to make sure that the contract your business uses has provisions in it for collecting debt that includes a line in there about the purchaser agreeing to pay for collection costs including attorney’s fees.  This will save you a ton of time and money and really only adds a little bit more language to your bills, credit applications, etc.

Complaint

            After you’ve tried your darnedest to get your debtor to pay you, by sending letters and making calls, there comes a point when you have to file a complaint.  Any Incorporated entity should have an attorney handle this.  It consists of list of how much is owed and for what, and affidavit to those facts, and a statement of damages.  Once filed the debtor has 20 days to respond to the complaint or come to an agreement with you as the creditor.

Judgment

            Assuming that the debtor really does not have an argument as to why they did not pay for the goods or services they have used, you may file for a judgment and execution.  But now you still don’t have any money.

Collecting your judgment

            At this point you have your judgment and execution but need to make a strategy on how to collect the actual money owed.  There are many ways to go about doing so.  Property can be levied upon and sold to help pay off the debt.  Bank accounts can be levied and through trustee process income to the debtors business or income to the debtor can be attached.  If none of that works you may even file for a “capias” which will allow a constable to pick up the debtor from where ever they may be and bring them into court to answer to why they have yet to pay for the debt they have been adjudged to owe.

Conclusion

            Collecting debt is difficult.  These are hard times.  It is important to get in on the list of creditors on any bankruptcy.  It is also important to get priority over other liens the debtor may have.  The best way to collect a debt is to get an attorney who is willing to fight for the small percentage that they will receive.

            A WISP is a Written Information Security Plan. Under the new Massachusetts law (chapter 93H) and its regulations (201 CMR 17.00) everyone who handles Massachusetts Residents’ Personal Information must develop and implement a WISP. Personal Information, or PI, is the last name and either first initial or first name of a person, along with a social security number; driver’s license number; or financial, credit, or debit card number. This new law goes into effect March 1, 2010, and applies to just about every business since most will hold or transmit PI.

            Besides requiring a WISP, the law also requires you to notify the state and the affected consumers if you have a security breach. If you have a breach and don’t have or follow your WISP, you could be subject to stiff penalties. So, the best course of action for every business is to develop a WISP and implement it immediately.

            So, how do you get started? The first step is to conduct an audit of your business practices. Be sure to document the audit so you can demonstrate that you did it. One way to start is to think of all the different kinds of PI you business has access to. For instance, your employment records likely will contain PI. You may ask customers to provide you with their bank account numbers when applying for credit, or you may have copies of credit card receipts with customers’ names and account numbers.

            The next step is to list all the ways that your company stores or transmits that information. Do you have paper files? Do you store the data on computers or servers? On laptops? Do you backup your data and take it off-site, or use an online backup service? Do you email PI to vendors or within your company? Do you fax or mail PI?

            Now, list all the people and companies who may have access to PI. Your employees, independent contractors, interns, visitors, vendors. Your goal is to make sure that access to PI is appropriately limited among all of these people, and protected against theft by outsiders.

            Think about how you protect PI right now. Do you secure written PI in locked filing cabinets? Who has access to those keys? Can visitors easily access PI when left alone? Do you encrypt emails containing PI? Are your computers, servers, and backup devices encrypted? Do all of your employees have unlimited access to PI, even if they don’t need it? Is your wireless network encrypted? Do your employees have their own, strong passwords, and are they changed regularly? Have you changed the passwords on your electronic devices from the factory settings?

            The new law also requires you to train your employees on your WISP, certify their attendance to the training and that they understand the terms of your WISP. You must also ensure your vendors and contractors have a WISP or are in compliance with yours. You will also need to designate a person responsible for monitoring and updating your WISP.    

When developing your WISP, you will want to address potential breaches to PI security and create a plan that is feasible and effective for your business. There is no one-size-fits-all answer, but you should take a proactive approach to this new law. Get your WISP in order and implemented by March 1^st.

            I recommend reading the law and regulations. Get started at the MA Office of Consumer Affairs and Business Regulation (OCABR) Identity Theft page: http://www.mass.gov/?pageID=ocatopic&L=3&L0=Home&L1=Business&L2=Identity+Theft&sid=Eoca

The Homestead Act

Massachusetts General Laws, Chapter 188 sections 1-10

And what it can do for you.

            Maybe a better heading would be “the Homestead Act – and what it means for you.”  In my practice I have encountered many misconceptions surrounding the act and its capabilities.  Instead of listing off all the things the act doesn’t do or the things people “heard” it does, I am going to get right down to exactly how you can benefit from it.

So what does it protect you from?  The Homestead Act protects your home from being sold to satisfy an unsecured debt.  Unsecured debt can come from things such as credit cards and judgments entered against you from car accidents or other suits.  It is debt that is not secured by a mortgage or lien on your property.

If you are under 62 and you are not disabled the act entitles you (married homeowners, single homeowner, or homeowner with a child under 18) to $500,000 in value of your principal residence that cannot be collected by creditors for unsecured debt.  For example, let’s say you ran up $60,000 of debt on your credit card that you were unable to pay.  The credit card company took you to court and won a judgment against you.  If you did not have this homestead protection, the credit card company could get an execution and levy on your home, effectively selling it to cover their costs and loss.

Now if you are over 62 years of age or disabled, then you and your spouse may file individual Declaration of Estate of Homesteads, each for $500,000.  The form for disabled persons and persons 62 and older is different than that of a regular Declaration of Estate of Homestead, so make sure that you file the correct one for your circumstances. 

This does not protect you from secured debt.  Secured debt is your first or second mortgage, or any other type of mortgage or lien which was recorded before you file for a Declaration of Estate of Homestead.  The lesson here is that if you do not pay your mortgage, the Homestead Act will not keep your house out of foreclosure.

Exemptions.  Before you get too excited about what a thirty five dollar filing fee can get you, there are still a few other things that the Act does not protect you from.  Things like:

1.       State, federal and local taxes, assessments, claims and liens,

2.      Judgments to pay child support or spousal support,

3.      Debts that were created before the homestead was filed,

4.      Medicaid liens (as of right now your home may be sold to offset your final medical costs if born by the Medicaid system)

5.      Any judgment based on fraud, mistake, duress, lack of capacity, and undue influence, and, as explained earlier . . .

6.      Mortgages that are secured by the property.

This Homestead Coverage is often termed “cheap insurance,” but I must stress that it is not insurance at all and doesn’t cover any of the things that typical homeowner’s insurance covers. 

Conclusion.  The Homestead Act is an important part of our laws and should be utilized by all Massachusetts homeowners.  For a filing fee of only thirty five dollars you get $500,000 in unsecured debt protection for your primary residence, and that protection lasts for at least the life of the person who files it, or until the home is mortgaged again.  For the price, you can’t beat it, even if you never need it.

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