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Legal Blog - Ohio, Kentucky, Indiana and Michigan

Gerner & Kearns Sponsors AHA 2019 NKY HeartChase

Florence, KY - Gerner & Kearns sponsored and participated in the American Heart Association 2019 Northern Kentucky HeartChase Saturday May 18 at Newport on the Levee for the second consecutive year. In 2018, the firm was the photo booth sponsor and this year got into the game as a checkpoint sponsor. David Gerner, Founder and Managing Partner served on the Executive Leadership Team and participated in the Executive Leadership Challenge raising over $3,800 and counting.

David Gerner Named 2019 Leading Lawyer by Cincy Magazine

Florence, KY - Every year Cincy Magazine's Power 100 February/March issue features leading lawyers in the tristate area including Southwest Ohio, Northern Kentucky and Southeast Indiana. Registered attorneys in these areas are invited to submit ballots nominating the best among their colleagues. Self-nominations are prohibited, and submissions are fact checked and approved by an advisory board to ensure accuracy and authenticity. This list has been published for 14 years and this year includes 288 of the best lawyers in the area as nominated by their peers. 

Agents Under the New Kentucky Power of Attorney Law -- Pt. 2

Today we continue our discussion of Kentucky's recent adoption of provisions of the Uniform Power of Attorney Act. In this Part 2, we will talk about the duties of an agent who has accepted appointment.

Gerner & Kearns Opens Downtown Cincinnati Office

Florence, KY - Gerner & Kearns opened a new office in downtown Cincinnati at 119 East Court Street, Suite 503 on Monday June 3. The new office is centrally located and conveniently less than one block from the Hamilton County Administration Building and Courthouse. The firm can now host closings and meetings downtown since the new location includes a spacious conference room, additional meeting space, ample on-street and garage parking nearby. A growing firm with thirteen attorneys, Gerner & Kearns will be able to better serve clients in Ohio with the addition of a downtown office. 

Kentucky's Uniform Power of Attorney Act -- Pt. 1

On July 14, 2018, Kentucky's new Power of Attorney law took effect. The series of new statutes in Chapter 457 are based on the Uniform Power of Attorney Act as drafted by the Uniform Law Commission. The ULA is a group of lawyers that crafts generic laws that an individual state may enact as its own, often with legislative modifications to meet the unique needs of that jurisdiction.

A power of attorney is the authority a person (called the principal) grants to another (called the agent or attorney-in-fact) when the principal signs a power of attorney document. The authority or power given to the agent is to conduct business or personal transactions on behalf of the principal.

Most people sign powers of attorney to name someone to handle the principal's affairs should they become temporarily or permanently incapacitated. Other situations may call for a power of attorney. For example, a business executive may travel internationally on a regular basis and require an agent to conduct business or handle personal affairs for the principal when he or she is abroad.

Part 2: Ethical Standards for Debt Collectors

Unfortunately for upstanding debt-collection companies, the historic behavior of some actors in the industry created a stereotypical -- and largely untrue today -- picture of debt collectors engaging in illegal or unethical tactics. To put this to rest, today's debt-collection professionals must carefully adhere to consumer protection and related laws that regulate collection practices, such as the FDCPA, which we discussed in Part 1 of this post.

In this Part 2, we will discuss ethical codes created by the main professional organizations for debt collectors: ACA International and the Commercial Collection Agency Association. These ethics codes self-regulate the collection industry through membership in collective trade organizations that can expel or suspend members for violations.

Part 1: Ethics Involved in Debt Collection

At our law firm, we represent creditors and debt collectors throughout the life cycle of collecting on a debt. The practice of debt collection is far more than just securing money owed, which is of course the primary goal and the main component of business success.

Collecting debt in an ethical manner, however, is arguably as important. Any business or professional entity that collects debt for itself or for third parties must protect its reputation and good will with its clients, with other collectors, with government regulators, and with debtors by ethical interaction and business practices.

Wire Fraud Warning Signs in Real Estate Transactions and Closings

There has been an explosion in the criminal targeting of real estate closings through the use of hacked email accounts to send fraudulent instructions to transfer large amounts of money intended to purchase real estate into the criminals' accounts, rather than into the legitimate accounts intended by the parties. The imposters impersonate people involved in the closing transaction via email to gain trust and orchestrate the fraudulent transfer.

What is the Role of Debt Management Companies in Debt Collection?

A debt management company is one option for consumers looking for resolution to being over their heads in debt. The business model is relatively simple: the company and the debtor enter into an agreement providing that the management company will negotiate on behalf of the consumer with his or her creditors, seeking to lower payments and interest rates.

According to The Simple Dollar, debt management plans do not normally seek to reduce the actual principal balance of a negotiated debt. Rather, the focus is on adjusting the monthly payment and interest terms.

Nonjudicial Foreclosure is Not Debt Collection Under the FDCPA

In a long-awaited decision, the U.S. Supreme Court on March 20, 2019 held unanimously that when a business initiates an In Rem only nonjudicial foreclosure on behalf of a mortgage lender, the provisions of the Fair Debt Collection Practices Act (FDCPA), with the exception of S 1692f(6), do not apply because the business does not fall under the primary definition of a "debt collector." The decision was limited to the facts situation that the firm of McCarthy & Holthus LLP was only enforcing the Security Instrument and was not attempting to collect on the Note.

Rather, the court reasoned in Obduskey v. McCarthy & Holthus LLP, that In Rem nonjudicial foreclosure actions are instead only security-interest enforcement actions, and the business is not a "debt collector" under the FDCPA, except for the limited purpose of S 1692f(6), which triggers the much narrower set of responsibilities under the FDCPA, as set forth in S 1692f(6). If the Colorado law firm that instituted the nonjudicial foreclosure proceedings had met the primary definition of a debt collector, all responsibilities would have been triggered under the Act.

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