Your Opportunity to Get Answers to Legal Questions and Assistance With Legal Forms From an Attorney

Drake Shunneson will be providing brief legal advice where individuals will be provided an opportunity to get answers to questions, and assistance with basic forms at the Lake County Bar Associaton’s drop-in clinic on May 9, 2012 from 4:00 p.m. -7:30 pm. Due to the nature of the clinic, Drake will not be providing ongoing representation and the advice provided is not meant to create an attorney-client relationship and is for informational purposes only. The Lake County Bar Association is located at 300 Grand Avenue, Waukegan, Illinois 60085.

Is It Going to Cost Me A Lot of Money to Pursue an Injury Claim?

Most of our clients want to know whether or not they will need to spend a large amount of money to hire us to pursue a personal injury claim. The answer is no. In virtually every injury case that we handle, you will not need to pay us a dime after the initial consultation to hire us until the case settles or a court award is issued. This is because Shunneson Law Office represents people on a “contingency” fee basis for personal injury and workers compensation claims. The Supreme Court of Illinois has long recognized that everyday people do not have infinite amounts of resources like the large insurance companies. In order to level the playing field, the law allows for people to hire attorneys by agreeing to allow the attorney to accept a percentage of the funds recovered at trial or settlement. This allows for clients to obtain the legal representation they deserve without worrying about how they are going to pay for an attorney in addition to their rent, food, gas, utilities, and other necessities of life.

We also agree to pay for all out-of-pocket costs associated with pursuing our clients’ personal injury claims in the vast majority of cases. The Supreme Court of Illinois requires attorneys keep track of these costs separately and obtain reimbursement for those costs at the conclusion of the case, whether by settlement or court award.

These costs are the bills associated with a lawsuit such as medical record bills, police reports, filing fees, court reporter costs, trial exhibits, photographs and/or videos, service of process fees, expert consultant and witness fees, deposition costs, photocopying, mailing and other related costs. These costs are only incurred when necessary to resolve claims and are almost always an insignificant amount compared to our clients recovery from an at-fault party (usually paid for by an insurance company).

We understand that injured persons, and surviving family members of someone fatally injured, are often living paycheck to paycheck and it is our philosophy our clients do not need the additional financial burdens placed on them to get payment from at-fault parties.  This allows clients to obtain the legal representation they deserve without worrying about how they are going to pay for rent, food, gas, utilities and other necessities of life.

The big insurance companies have virtually unlimited resources and we understand that people can’t afford to fight them on their own without a little financial help. There is no reason to take on the massive resources of big insurance alone. We will protect your rights and make sure you are not abused by the companies’ massive resources.

At Shunneson Law I am devoted to demanding an at-fault party’s insurance company cover injuries following accidents. Call (847) 693-9120 for more information or Contact us to schedule a consultation. Located in Lake County, Illinois, with meeting locations throughout Chicago, we have the ability to meet with you at any convenient Chicagoland location 9:00 a.m. to 5:00 p.m., Monday-Friday. However, evening and weekend appointments are available upon request by calling 847-693-9120.

-Drake Shunneson (copyright 2012)

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual.Photos courtesy of FreeDigitalPhotos.net

Avoid Tragic Bicycle Accidents By Following These Safety Tips

As the weather in Chicago and Illinois improves, many bicyclists will dust off their bikes and start riding again. Biking is great exercise and a wonderful way to enjoy the nice weather. However, when a bicyclist is riding on a street, road, or other areas where they are likely to encounter vehicles, they need to be aware of the very real danger that sharing the road with motorists presents. It is really quite difficult to explain just how vulnerable a person is when a car-bicycle collision occurs. The only way I can explain it is to ask people to imagine that they are walking down the street when they are suddenly hit by a six-foot, three hundred pound man running at full speed around a corner. Now, turn that man into steel, increase his speed by three and make him weigh seven times more. A pretty scary thought, isn’t it?

There really is no way to completely eliminate this risk except by only riding a bicycle on paths where vehicles are prohibited. However, there are several safety tips that you can, and should, do to reduce the potential risks associated with riding a bike in Chicago and Illinois:

• Wear a Helmet! There is absolutely nothing more tragic than cases where a bicyclist is hit by a vehicle and, because he or she was not wearing a helmet, the car-bicycle accident causes the person to hit their head on the pavement at forty-miles per hour. The resulting injuries are virtually always death or major brain trauma. If you wear a helmet, this near certainty is significantly reduced or eliminated.
            o IT DOES MATTER. Too many of my clients believe that there is no point in wearing a helmet. These clients believe that if they get hit by a car, the result will be the same anyway so why bother? This is absolutely not true. For example, in one case I had, our client was hit by a motorist that wasn’t paying attention. The bicyclist was thrown from her bike, hit her head on the pavement, and was taken by ambulance to a local hospital. Because she was wearing her helmet, she survived the accident with very little long-term effects and was biking again by the next summer!

• Follow the Laws of the Road, But Change the Mindset that Cars Have to Look Out for You. While it is true motorists and drivers are required by law to share the road with a bicyclist, the consequences of you getting hit are far more serious than if you hit a car. Cars and trucks are bigger, faster, stronger and the vehicle’s safety protections are vastly superior to yours. All too often a bicycle accident occurs because the bicyclist is relying on his or her experience as a driver and expects the motorists to follow the rules of the road. Unfortunately, there are too many people out there that are not as careful as they should be and bicyclists should always be aware of this fact. Always look out for motorists, even when you know they should be looking out for you. I usually ask clients to imagine all cars are being driven by the cast of Jersey Shore and that you should act accordingly.

• Use Headlights, Signal by Waving, Wear the Bright Colored Safety Vests, Slow Down and Ride Further to the Left. In one of my recent cases, a bicyclist was injured as she passed by a local parking garage. The vehicle that hit this bicyclist was pulling out of the parking garage at the time and simply didn’t see the bicyclist. Bicyclists are often struck when a car that doesn’t see them suddenly, and unexpectedly, pulls out in front of them. This situation is particularly common in Chicago where the parking garages’ exits are located in the middle of busy streets. By making yourself more visible, you are far more likely to avoid this situation.

• Try Not to Ride Close to Parked Cars, Slow Down, and Ride as Far to the Left as Possible. Many a bike messenger will tell you what a harrowing experience it is to be cruising along a street and suddenly have a motorist that just parked their car open the door in front of you. If you are riding your bike too fast, or are too close to the cars, you will not have enough space or time to react and will find yourself suddenly stopped.

• Walk, Do Not Ride, Your Bike Across Intersections and Crosswalk. Probably the most common tragic bike accident takes place when a car hits a bicyclist that is trying to cross a street. At least once a year there is a news article about a tragic car-bike accident where a bicyclist is killed crossing a street. There is nothing so urgent that you should be risking your life needlessly by riding your bike across a crosswalk or intersection.

• Avoid Riding Your Bike on a Sidewalk. As already stated, motorists must share the road with bicyclists. However, many people feel that it is unsafe to ride on the streets because of all the large, fast moving vehicles. However, riding on the sidewalk can lead to many of the accidents that occur (ie getting hit by vehicles pulling out of driveways/garages, intersection accidents). It is also dangerous because you could hit pedestrians. The problem about pedestrians is especially problematic near schools for obvious reasons.

• Biking is Not a Fashion Statement. Wear the Safety Gear. Ever see that James Dean movie where his leather jacket looked cooler as it swished up and down as he peddled his ten speed? Yeah, me neither. Biking is a lot of fun, great exercise, and, by engaging in the exercise, you are already going to look cooler then your buddies that sit on a couch all the time. If you really believe wearing bright colored clothes, helmets, elbow pads, and other safety gear is cramping your style then just imagine the cramp permanent hair loss and a metal plate in your head will be! Please wear the proper safety gear and protect yourself.

Of course, this is not an extensive list, and bicyclists are well advised to educate themselves further on bicycle safety. For further reading, I suggest people visit the Department of Transportation, Federal Highway and Administration’s website on Pedestrian and Bicycle Safety. Another good article about bicycle safety is available here.

In Illinois and Chicago these problem are compounded by the changing weather. During the winter months very few people will ride bikes and motorists simply forget to look out for them. Many bicyclists are well advised to be aware of this issue and be extremely safety conscience during the spring (and summer) months.

At Shunneson Law Office, we have years of experience in handling bicycle accidents with motor vehicles. Given the potential severity of the injuries, you need an experienced attorney to help you through these difficult times. I am devoted to demanding an at-fault party’s insurance company cover injuries following accidents. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos courtesy of FreeDigitalPhotos.net.

When Can the Police Legally Search Your Car After an Arrest?

Generally, Fourth Amendment of the U.S. Constitution provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Accordingly, the Constitution of the United States generally prohibits the police from searching your vehicle without a warrant under the Fourth Amendment. Of course, this general rule doesn’t apply if you willing waive your rights. If the police ask if they can search your car, then you should say no. If the police have asked to search your car, then they probably know they shouldn’t be and, if they go ahead and do it anyway, then an experienced attorney can handle the situation later.

However, what if the police are not asking if they can search your car, but, rather, search it without a warrant after legally arresting you? The Supreme Court has recognized that the Fourth Amendment has limits and has created various exceptions to the general rule that a vehicle cannot be searched without a warrant.

Search Incident to a Lawful Arrest

Probably the most important exception for clients arrested after a traffic stop is the “search or seizure without a warrant as an incident to lawful arrest.” Chimel v. California. As initially envisioned by the Court, this rule was designed to serve two purposes:

  • A need to disarm someone arrested; and
  • A need to preserve evidence.

Following this decision, police and prosecutors across the country argued that these reasons meant anyone arrested after a traffic stop could have their car searched. Many Courts agreed with them and the exception swallowed the rule. In Thornton v. U.S., Justice O’Connor wrote that the “Court decisions seemed…to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than an exception justified by the twin rationales.”

Of course, it is not always necessary to search a vehicle to make sure someone arrested is disarmed and to “preserve evidence.” For example, there is little reason for the police to search a glove compartment after an arrest for excessive speeding where an unarmed individual handcuffed in the back of a police car has provided proof of insurance, registration and a driver’s license. All the evidence the police need is already in their possession. Yet, case law appeared to allow for this type of search no matter what the facts or circumstances.

Fortunately, the Supreme Court put limits to this abuse in it’s decision of Arizona v. Gant. In this case, the Court limited this exception by only allowing officers to search areas, such as a passenger compartment, when the arrested person is “unsecured and within reaching distance of the passenger compartment at the time of the search,” or “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’” (emphasis added). (In Illinois, another relevant case is People v. Bridgewater, 375 Ill. App. 3d 414 (2009)).

This decision means that an officer can search a vehicle without a warrant when they have an actual threat to their safety or if there is some justifiable basis to believe there is evidence in the car/vehicle related to the crime the person was arrested for. Because it is so rare that an officer will be unable to safely secure the safe arrest of a vehicle occupant, the rule basically means that an officer can only search a vehicle incident to a lawful arrest for evidence related to that arrest (ie if you are arrested for a traffic violation or suspended license the police probably won’t be able to search your car).

Thanks to this Supreme Court decision, police officers are now prohibited from searching a vehicle after an arrest for any reason whatsoever. Again, this rule will not apply if you are willing to waiver your rights. If you get arrested, and the police want to search your car, tell them no! If they go ahead and search the car anyway, let them without saying anything and without fighting them. If the police have asked to search your car, then they probably know they shouldn’t and, if they go ahead and do it anyway, then an experienced attorney can handle the situation later.

This decision is an example of an instance when the Supreme Court actually protects the rights of U.S. Citizens. The search warrant requirement is meant to protect the privacy of citizens from the intrusive eyes of the government. This protection should only be waived when the particular situation makes it necessary. Prior to Gant, the decision of whether a citizen’s privacy should be invaded in the context of a car search was put in the hands of the police. The police’s primary job is to investigate crime and arrest criminals. As the Supreme Court has stated, “the right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.” Chimel v. California. This decision goes a long way towards correcting the error created by past decisions that allowed police to search a car because they had just came up with some excuse to put a man or woman under arrest.

Inventory Searches

Unfortunately, you can expect the police to continue to try to search your car after you are arrested and get away with it. Remember when I said the Supreme Court has created various exceptions to the general rule a vehicle cannot be searched without a warrant? The Gant decision only addressed one of them: a search incident to a lawful arrest. There are several other exceptions the police are now going to have to look to for searching your car.

The first is the “inventory search” exception. In Illinois, the police could conduct an “inventory search” after an arrest by impounding your car to “protect” the police department and the “vehicle owner” against lost property claims. It is common knowledge that this type of search is really just another way the police can perform a warrantless search of a vehicle. It is also usually allowed when a driver is arrested, or contraband is found in the car, etc. It is likely you are not going to suppress the evidence unless the police did not follow proper procedure in impounding a vehicle. See. e.g. Harrington v. Heavey, No. 04 C 5991, 2006 U.S.Dist. LEXIS 84964. People v. Hundley, 156 Ill. 2d 135 (1993), People v. Ursini, 245 Ill. App. 3d 480 (2nd Dist. 1993), and People v. Alewelt, 217 Ill. App. 3d 578 (3rd Dist. 1991).

Inevitable Discovery

This exception allows in evidence if the discovery of the evidence was ”inevitable” through another process. With regards to car searches, various Courts are allowing in evidence that should be suppressed under Gant under the “inventory search” exception. One case held that if the evidence “would have been uncovered during a routine inventory search of the vehicle upon impound,” the evidence is admissible. This means that if evidence seized during a search of your car could have been found pursuant to an “inventory search” of the vehicle, the government is going to let it in. Worse, this allows for police to make a warrantless search of your vehicle and, after finding evidence, impound the vehicle and argue that the evidence would’ve been found anyway. The truth of the matter is the police before Gant would not want to impound your vehicle because of the cost and paperwork, but now will likely change their policies to increase the cars that they tow, and impound, following an arrest.

The only real winners could very well be the tow truck companies and impound lots.

Probable Cause

Another excuse the police could use to argue that a warrantless search was valid is by arguing that they had “probable cause” to conduct this search. Generally, an officer could justify a search when there is reason to believe a crime is committed and the officer is searching in an area where he believes evidence of that crime exists. In other words, if you are being arrested because the police believe you have kidnapped someone and put them in your car trunk, then it is likely they can search your car trunk to find that kidnapped person. This exception will often overlap with the second purpose for the search incident to a lawful arrest exception, but that won’t always be the case.

Call Shunneson Law Office to Protect Your Rights

If you have had your car searched, and believe the search was illegal, then an attorney is absolutely necessary to protect your rights. We will force the police to justify their searches and seizures with articulable, intelligent reasons and demand they provide proof that the evidence was gained through valid policy and procedure. If it is not obtained through legal means, we will suppress the evidence.

As always remember, when you are dealing with the police, there are four rules to follow:

  1. You have a constitutional right to remain silent. Don’t say anything to them at a traffic stop except providing them with a valid driver’s license, proof of insurance, and registration.
  2. You will not be able to make up a good story or excuse that the police will “buy” since they are out to get you and won’t believe you anyway;
  3. The police won’t believe you, so why would you believe or trust them? Don’t!
  4. Don’t argue, resist or fight them when they are handcuffing you.

At Shunneson Law Office I am devoted to protecting your rights and helping you through your difficult times. Call (847) 693-9120 for more information.

-(Reporter): “Do the recent Supreme Court decisions make it harder to convict a suspect?” (Response) “Of course they do, what were they (the bill of rights) written for? Guranteeing a man a right to an attorney, does that not make it harder to convict him? Guaranteeing a right against search and seizure, does that not make it harder to convict him?” -United States Supreme Court Justice Black

-Drake Shunneson (copyright 2012)

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos courtesy of FreeDigitalPhotos.net.

Proposed Provisional Waiver Rules are Published by DHS and USCIS

In a previous article titled “Explaining the Department of Homeland Security and United States Citizenship and Immigration Services Proposal for Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens,’ I explained that the government was proposing a new rule for waivers. Under current law, anyone seeking a waiver for unlawful presence must apply for the same outside the USA at a consulate. I explained the new law would allow for certain visa applicants applying through U.S. Citizens to apply for a “provisional waiver” in the USA if their only ground of inadmissibility was unlawful presence and that I intended to update readers on the progress of this proposed rule.

On April 2, 2012, the government issued its proposed rule. Please note that this rule is not in effect and USCIS will not accept any applications for provisional waivers. Even though this rule will tremendously help those US Citizens that would suffer extreme hardship by being forced to wait for a waiver application submitted at a US consulate abroad, it has one very large flaw. Namely, certain relatives of LPRs (mainly spouses), will suffer the same hardship by being forced to wait for their qualifying relatives to apply for, and receive, a waiver at a U.S. consulate abroad. In response, I wrote the following comment and I strongly recommend all those reading this article also submit a comment requesting the government change the rule to correct this inequality prior to the June deadline.

Submitted Comment:

Initially, I applaud the effort by the Dept. of Homeland Security and the U.S. Citizenship and Immigration Services to alleviate extreme humanitarian and financial hardships caused by prolonged separation of US Citizens from their qualifying relatives by allowing for them to remain in the United States while their waiver of inadmissability based on unlawful presence is processed. First, the law is impractical in that it doesn’t allow for a waiver for those that worked illegally. Next, the law also clearly allows for a waiver for qualifying relatives petitioning through a permanent resident (LPR) that would also suffer extreme hardship without a waiver, but there is no proposed provisional waiver for them. Additionally, US citizen’s relatives have a visa immediately available to them while LPR’s relatives must wait before a visa is available (currently by about three years per the Visa Bulletin).Additionally, some LPRs are here following Temporary Protected Status, which makes their home extremely dangerous for them and, if their spouse must leave to obtain a waiver, they may be put in a horrible position of choosing to return to a dangerous country or face extreme hardship in the USA. This will also create unnecessary inefficiency by separating out provisional waivers for those that are relatives of US citizens from those that aren’t.  Lastly, LPRs are, for the most part, eligible for US citizenship within five years and this could push many relatives of LPRs to delay filing for a visa and remain illegal until the LPR becomes a US citizen. This proposed rule appears, therefore, to be unnecessarily discriminatory and guarantees that the proposed purpose (alleviating humanitarian and financial hardships) will not be alleviated for LPRs. As Lincoln once said “let us forget this (immigrant and that immigrant)…Let us discard all these things, and unite as one people throughout the land, until we shall once more stand up declaring that all men are created equal.” -Comment Tracking Number: 8100073a

At Shunneson Law I am devoted to helping you with your immigration problems. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual.

 

Five Things Banks Do Not Want You To Know About Foreclosures

What most people fear most is losing their home to a foreclosure sale. The idea that you may lose your home can have a devastating impact on your emotional well-being and invariably consumes many of your thoughts. The frustration of dealing with a large debt over your head, harassing creditor calls, trying to catch up on the bills and mounting lawsuits can be too much for almost anyone to handle. Fortunately, Congress has adopted biblical law that allows for the release of your debts under the Bankruptcy Code. Understandably, banks don’t want you to know your rights under this code because it gives you a fighting chance against them by allowing you to wipe out, or drastically reduce, your debt and live the American Dream again! Here are the five things banks don’t want you to know about Foreclosures and Bankruptcy:

I. Bankruptcy Is An Ancient Law That Banks and Billionaires Want People to Feel Bad for Using

Banks and Billionaires want you to feel bad about bankruptcy so that they can get more money out of you. At the same time, Banks and Billionaires want to use bankruptcy to get rid of billions of dollars of bad debt while accepting government bailouts. For example, Lehman Brothers filed for bankruptcy on $613,000,000,000 of debt in 2008, forcing a massive government bailout. Billionaire Donald Trump filed for bankruptcy, at least, four times stating that he has used the laws of the country to “pare debt” and “make…fantastic deals.”

Bankruptcy is an ancient, respected law and our version of the code is based on the biblical requirement that a creditor grant a release of debts once every seven years (Deuteronomy 15:1-2). Don’t let the banks make you feel bad for using the code now that you know they just want to get rid of their own real estate debt, but keep you on the hook for yours!

II. Filing Bankruptcy Will Stop Foreclosure of Your Home

Filing bankruptcy immediately stops foreclosure actions, including foreclosure sale. After a bankruptcy is filed, the bankruptcy court will issue an “automatic stay” order that will stop all collection actions against you and your property. Even if you can’t keep the home because of your financial situation, and the type of bankruptcy filed, you will almost certainly be able to stop foreclosures for months, if not longer!

III. Most People That File Bankruptcy Get to Keep Their Home

Illinois law, like virtually every state, allows for people to file bankruptcy and “exempt” certain property. In Illinois, one of these exemptions is known as the “homestead” exemption, which is your home. This allows for individuals capable of paying for their mortgage to get rid of, or drastically reduce, other debts and keep their home.

IV. Mortgage Loans CAN BE DISCARGED in Bankruptcy

Chapter 7 bankruptcy allows for you to get rid of mortgage loans (as well as virtually every other debt such as credit card, medical bills, lawsuits, auto loans, etc) and surrender your home to the bank. Discharge Means Getting Rid of Debt, ALL DEBT and Surrendering Your Home Chapter 7 discharge not only allows for you to get rid of mortgage debt, but it allows for you to return your home to the bank, not owe for any past debt AND not owe for any future debts. If you know your financial condition won’t let you keep paying the mortgage, the best solution is to get rid of your large debt!

V. Foreclosure is Worse for Those Who Care About Credit Reports

Initially, it should be noted that credit reports and credit scores are created by three large private companies that are on the banks’ side. In my personal opinion, the concept of a credit score given to us by hypocritical banks is just psychological warfare against citizens with limited resources. With over 391,000 people declaring bankruptcy in 6 months in 2007, bankruptcies are no longer an uncommon situation that will “destroy” your credit as the banks would have you believe. Further, if you are looking at foreclosure, can’t pay your bills, or are already in a lawsuit, then it is likely your credit is “destroyed” anyway. Nevertheless, a foreclosure on a credit report is ultimately much, much more important to a mortgage lender than a bankruptcy that doesn’t include the house. Why let what someone else says about you get in the way of using a wonderful tool to get rid of unwanted debt?

I understand how difficult it is when you have nothing but large amounts of debt. You are in danger of losing your home, owing the banks more money even after foreclosure, creditors constantly calling and harassing you, scumbag credit counseling companies are promising to get rid of your debt, you are struggling to pay bills and you could be in the midst of lawsuits where the banks are threatening to garnish your wages. Shunneson Law Office is here to help! As a solo practitioner I give every second to my clients and am always available to assist you. I provide QUALITY, LOW-COST SERVICES for all of my clients.

At Shunneson Law Office I am devoted to giving you a fresh start, while protecting important property, in the face of overwhelming debt. contact me for a FREE information package where you will get a package of information to better inform you PRIOR to talking to an attorney or anyone else making promises about your financial future.

-Drake Shunneson (copyright 2012)

Notice:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity, or individual.

How to File Bankruptcy Without a Social Security Number


Many individuals often wonder whether an illegal immigrant may file for bankruptcy and/or whether a social security number is required to file bankruptcy. 11 USC 109 states that a person that “resides or has a domicile, place of business, or property in the United States, or a municipality, may be a debtor (petitioner, bankruptcy filer, person who wants to file bankruptcy) under this title.” (explanation of debtor added). Although there are certain limits for entities such as railroads, etc. there is nothing in this section, or the bankruptcy code, that requires you have a social security number to file bankruptcy. In order to accommodate this, an individual without a social security number should complete, and sign, a document titled a Statement of Social Security Number. Even though the document is titled a “Statement of Social Security Number,” it allows for a filer to provide for either a social security number, an Individual Taxpayr Identification Number (ITIN), or state that the filer does not have either a ITIN or social security number. It is actually very easy to get an ITIN number. These are provided by the Internal Revenue Service so that those who can’t get a social security number, but must report income and pay taxes, can do so.

Despite these rules, it may be very difficult, if not impossible, for an illegal immigrant, or someone without a valid social security number, to file bankruptcy without either a social security number or an ITIN. As will be discussed infra., if an illegal immigrant uses, or has used, someone else’s social security number, it is still very likely that you will not be able to file a bankruptcy petition.

With regards to the first issue (filing without a social or an ITIN), Rule 4002 of the Bankruptcy Procedures, among other rules, requires that a debtor bring proof of identity to the meeting of the creditors. As a practical matter this means that a debtor without a social security number must apply for, and obtain, an ITIN. Accordingly, while you are allowed to file without a social security number, it is imperative that you obtain an ITIN to ensure that you provide acceptable proof of identity at the meeting of creditors. As an aside, it is also very important that, based on 11 USC 109 that an individual be able to show proof of residence, such as a valid lease.

With regards to the second issue (filing with a ITIN, but previously using someone else’s social or a made up “fake” social), it should initially be noted that, pursuant to 42 USC 408(a)(7)(B) and (C), it is a crime to use a fake social security number or use someone else’s social security number. This is why it is imperative that you not use a fake social security or someone else’s social security number in your bankruptcy petition. If you have previously obtained a loan, filed tax returns, or otherwise utilized the social security number for financial purposes, then other issues can arise with your bankruptcy filing.

Most importantly is filing a bankruptcy petition with an ITIN where the filer has utilized a different social security number on his or her tax returns. A Trustee will certainly notice this discrepancy and it will be in stark contrast to the tax returns. This could automatically tip-off the trustee that there has been a violation of 42 USC 408(a)(7)(B) and (C). Further, you will be making the criminal case for the government despite your right to remain silent since bankruptcy filings are useable in other proceedings. Thus, anyone that has
used a false social security number on previous tax returns should not file a bankruptcy unless they have filed tax returns utilizing the ITIN for the applicable periods.

Most importantly, from an attorney’s perspective, is that debts obtained by fraud are non-dischargeable under the Bankruptcy Code. Although many attorneys may not agree with me, it is my opinion that if someone gets credit or a loan using someone else’s social security number, then the individual has committed a fraud on that creditor (obtaining property by misrepresenting their identity) and will not be able to file for bankruptcy (if the credit was obtained with a fake, or “made up” social, then it is arguable that the credit was not obtained through fraud since there was no such misrepresentation). Further, an attorney that files a bankruptcy knowing that the credit and/or loan was obtained through the use of a fake social security number could face ethical sanctions for violations of the Illinois Rules of Professional Conduct since this could be viewed as assisting a client in committing a fraud in violation of said rules.

Next, as mentioned, bankruptcy filings are useable in other proceedings. A bankruptcy petition where a debtor files taxes with a false social security number, a statement of no social security number, and/or a statement of an ITIN number could potentially result in immigration consequences. This is extraordinarily unlikely under current immigration procedures and I have never, ever, ever heard of this happening in the entire time I have practiced as an immigration attorney. In most cases, the risks to the client are more palatable then the alternative for many clients and an attorney should use his judgment in deciding whether it is worth proceeding in an appropriate case. However, a client must be made aware that this is a possibility even though it is almost never going to happen.

Despite this fact, these filings will almost certainly be used against an immigration client if they have faced criminal prosecution by filing a bankruptcy with a false social security number. It is worth mentioning nobody can force you to obtain a social security number if you have no right to one. As such, do not use a false social security number or a fake social security number under any circumstances and obtain an ITIN as soon as possible to file taxes. This should be done even if you do not want to file bankruptcy to avoid potentially serious criminal consequences.

As this article should demonstrate, anyone wishing to file a bankruptcy that does not have a valid social security number faces very difficult legal questions and hurdles. It is impossible to discuss every possible scenario in this article and, for anyone that is in this situation, it is imperative that you speak with an attorney immediately regarding your particular case.

At Shunneson Law Office I am devoted to giving you a fresh start, while protecting important property, in the face of overwhelming debt. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)

Notice:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity, or individual.  Photos courtesy of FreeDigitalPhotos.net.

Why The Patient Protection and Affordable Care Act is Constitutional

As an attorney in the Chicago area, I have been following the coverage of the Supreme Court case of Department of Health and Human Servs. v. Florida (Docket No. 11-398), as well as the media coverage of the same. Specifically, I have been following the coverage of the issue regarding the constitutionality of the individual mandate. It should initially be noted that I have my own opinions about the law from a political perspective, but that this is not meant to be a political article. Indeed, I am writing strictly from a scholarly perspective with an eye toward legal analysis. In many ways, I have found the media coverage of this case to be avoiding the biggest problem presented with overturning the individual mandate law on the basis it is unconstitutional. Specifically, that the law is not unconstitutional based on over (70) years of precedent.

In many ways, the arguments that some of the judges presented from the bench are without much support. The simplest way to explain the issue i have with the challenge to the constitutionality to this law is in two-parts:

First, Congress has long had regulations and laws on the books requiring interstate truckers to, at a minimum, prove that they carry private insurance. See e.g. 49 CFR 365.405. Accordingly, Congress can require a private citizen to purchase private insurance so long as it is in “interstate commerce.”

Second, it has long been the law that if something “impacts” interstate commerce, it is in interstate commerce and, as such, can be regulated by Congress. In one recent Supreme Court decision, the court held that a private citizen growing marijuana in her own backyard strictly for private use in California involved interstate commerce, albeit illegal commerce. (Gonzales v. Raich). This has been the interpretation of the Constitution since the case of Wickard v. Filburn, which was decided almost seventy (70) years ago. It is hard to see how Congress can force a private person (a trucker or trucking company) to purchase private insurance because that impacts interstate commerce; argue that someone growing marijuana in her backyard for her own personal use impacts interstate commerce; but, simultaneously, hold that health insurance that impacts millions of people across the nation does not and is unconstitutional.

While I can certainly understand the political context of this law and know that it is an extremely volatile issue, it is not for the Court to make political rulings. Indeed, the Supreme Court’s sole duty in this case is to determine, based on the power first discussed in the seminal case of Marbury v. Madison, whether the law is constitutional. It is also well-known among lawyers that, in deciding whether something is constitutional, a Court will follow precedent so long as there isn’t a very strong reason for not doing so. If it were otherwise, attorneys, and their clients, would face chaos since they would be unable to know, without some certainty, what the law is.

It has been a source of frustration to me, and my colleagues, that the media, and even the president, has not pointed out the issues in overturning this law. In the author’s personal opinion, the Supreme Court could be facing very real questions about it’s authority if it begins to overturn laws, like the Patient Protection and Affordable Care Act, that are virtually indisputably constitutional based solely on the past seventy (70) years of precedent.

-Drake Shunneson (copyright 2012)

Notice:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity, or individual. Photos courtesy of FreeDigitalPhotos.net.

How Long Does a Car Accident Claim Take to Resolve?

For many injured people facing rising medical bills, damage to property, and lost wages as a result of a car accident (or other personal injury), resolving the case in an efficient, timely manner is of the utmost importance. Understandably, many people want to know how long it will take before their car accident case will resolve. Many people feel like this is a simple question that should have a simple answer. However, this is not a simple question for many reasons.

Whether your claim resolves quickly depends mostly on your medical history, the extent of your injuries, and the amount of medical “damages” (medical bills). Although some attorneys may disagree with me, it is my opinion that it is extremely unwise to attempt to settle a claim until you are fully recovered from you injuries. If you are never going to make a full recovery, then you should wait until you are as recovered as you are ever going to get (in legalese this is known as Maximum Medical Improvement). After the full extent of your injuries are known, it is easier to analyze your case and prepare a settlement proposal to the car insurance companies.

Also, if you have a very serious injury, and very high medical bills, the insurance company may want to do their own investigation into the matter. This could include a request for examination by the insurance company’s physicians, extensive medical history review to ensure you do not have any major pre-existing conditions, and an accident reconstruction performed by expert accident reconstructionists. This process could take a very long time indeed and, unfortunately, those with the most serious injuries are the hardest to resolve quickly.

Beware of any attorneys that tell you that they can get you money on the same day that you come in. These attorneys have almost certainly not taken the necessary time to analyze your case, review your medical records, and determine what your case is worth. I have heard horror stories where injured people who have had their limbs broken, or amputated, have accepted $5,000 on a $200,000 case. Even though you may feel tempted to take the money today, it will hurt you in the long run since it is unlikely the paltry amount the insurance company gave you will pay for even a fraction of your current, or future, medical costs. Remember “a man who is a master of patience is a master of everything else.” – George Saville. At Shunneson Law Office, we typically discuss with our clients the settlement offer we are going to make to the car insurance companies and explain why we think the offer is reasonable. This is because if you settle, you will also be asked to sign a contractual Release where you will agree not to pursue the claim forever. This will COMPLETELY BAR you from suing the insurance company after accepting the settlement.

At Shunneson Law I am devoted to demanding an at-fault party’s insurance company cover injuries following accidents. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)

NOTICE:
The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual. Photos courtesy of FreeDigitalPhotos.net.

Explaining the Department of Homeland Security and United States Citizenship and Immigration Services Proposal for Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens

February 13, 2012

On January 9, 2012, the U.S. Citizenship and Immigration Services and the Department of Homeland Security submitted a proposed rule for provisional waivers of inadmissibility for certain immediate relatives of U.S. citizens. There has been some confusion lately from many dealing with immigration issues regarding this proposed rule that would allow for individuals to obtain a waiver (“el excepcion”) without leaving the United States. Many believe that this proposed rule is now the law. They also believe that this rule allows for them to get a visa without leaving the United States. This article is written to resolve the growing confusion over the rule and explain what the proposal real means for those seeking visas.

First, as stated, the rule is only a proposed rule. This means that the current law has not yet been changed and that USCIS has only put forward the possibility of a change in the law. As such, this rule is not the law yet and probably will not be for several years, if at all. In fact, in the proposed rule, the government specifically states “Do not send an application requesting a provisional waiver under the procedures under consideration in this notice. Any application requesting this new process will be rejected, and the application package returned to the applicant, including any fees, until a final rule is issued and the change becomes effective.”

The current law requires individuals who have accrued a certain amount of unlawful presence in the United States to be processed at a consulate abroad. The current process also requires that these individuals apply for, and receive, a waiver (excepcion) through application for the same at the consulate. However, the proposed rule, as stated in the Department of Homeland Security’s Notice of Intent would change the law as follows:

  • For immediate relatives of US citizens that are barred on the basis of 212(a)(9)(B)(v) (accrual of unlawful presence) to apply for provisional waivers prior to departing the United States for Consular processing; and
  • The proposed provisional waiver program will be limited to immediate relatives of U.S. citizens who can demonstrate extreme hardship to a U.S. citizen spouse or parent; and
  • The proposed program will also be limited to those whose sole bar to admission is accrual of unlawful presence, which is a flaw in the rule.

The proposed rule will not change the law as follows:

  • USCIS and DHS does not intend to change the legal standard for assessing the eligibility for the waivers; and
  • The proposed provisional waiver program will not apply to those seeking a visa through a lawful permanent resident; and
  • Individuals will still be required to depart the United States for consular processing. The waiver is not effective until the alien leaves the United States.

I hope this clears up the confusion that this proposal has created among many of those trying to navigate the complex web of immigration law.

For an update, See Proposed Provisional Waiver Rules are Published by DHS and USCIS.

At Shunneson Law I am devoted to helping you with your immigration problems. Call (847) 693-9120 for more information.

-Drake Shunneson (copyright 2012)

NOTICE:

The materials provided are for informational purposes only and should not be viewed as legal advice. It may also be viewed as advertising material. You should contact us directly, or your attorney, to obtain advice to any issue or problem. This article, by itself, does not create any attorney-client relationships and the opinions are those of the individual author and do not reflect the opinions of the Law Office or any other individual attorney, entity or individual.Photos courtesy of FreeDigitalPhotos.net.