Premises Liability on Public Property


Here in Oregon we love spending time outdoors: crabbing on the Oregon coast, hunting  and backpacking in the Oregon Wilderness, snowboarding, sea kayaking— we love it all. But what happens when there is an accident on public land? If you fall down a ravine while hiking, or break a leg snowboarding, do you have to bear the costs alone?

Premises Liability.

The general rule is that all property owners have a duty to maintain their property in a reasonably safe condition so that people entering on the property will not get hurt. The legal theory for this rule is called “premises liability.” Premises liability makes property owners responsible for accidents and injuries that occur on their premises.

It applies to private as well as public properties.

When it comes to determining when, and to what extent, a property owner is responsible for injuries that occurred on his property, the law divides the people entering on the property into different classes:

  • Licensee —someone who is present for his own purposes, but enters with permission of the owner.
  • Social guest—is someone that is a guest, present with the owner’s permission.
  • Business Invitee—someone who enters the property at the invitation, and for the benefit of the owner— like a customer. This invitation usually implies that the owner has taken reasonable steps to make the property safe.
  • Trespasser— someone who enters the premises without permission and has no right to be on the property.

A property owner’s liability for injuries is determined by the laws and procedures of the state in which the injury occurred. Some states look only at the status of the injured person (social guest, licensee etc.) to decide liability. Other states look at the injured person’s status, his actions on the property, the condition of the property, and the owner’s actions. Knowing what factors the court in your state will apply is why it is important for you to consult with knowledgeable personal injury attorneys.

Oregon’s Recreational Use Statute.

In 1995, Oregon enacted its recreational use statute, which encourages landowners to make their land available to the public for recreational purposes. Oregon’s recreational use statute provides that an owner of land who makes it available for recreational use is not liable for injuries occurring on the land to people making use of it for those specific recreational purposes. That immunity does not apply, however, if the landowner charged the injured party to use the land.

Public Lands.

When it comes to public lands, it may be difficult to hold the government responsible for injuries because most government agencies enjoy “government immunity.”

Consult Competent Counsel.

If injury has put the skids on your outdoor activities, we may be able to help. We are Oregon attorneys. We provide free consultations. We have offices throughout Oregon and in Vancouver and Tri-Cities in Washington. To set up an appointment, call us toll free at: 1-800-682.9568 or contact us through our website.

Bankruptcy in the Context of Divorce


Statistics show that 55% of all marriages end in divorce. And 39% of all divorced couples say that conflict over finances was the reason the marriage fell apart. Fights over money ruin relationships. That’s why we so often see divorce occurring when there is a bankruptcy. It’s because of this that it is critical to understand the intersection of the bankruptcy laws and divorce laws.

 What Comes First – Divorce or Bankruptcy? No Simple Answer.

If you are facing divorce and a bankruptcy, the first thing you need to consider is timing. You must decide whether to file for divorce first or for bankruptcy first. (Filing the two together causes significantly more problems.) How you answer that question depends on a number of things: your income, your spouse’s income, what type of bankruptcy you are filing for or qualify for (Chapter 7 or Chapter 13), what assets you have, the costs of divorce and bankruptcy, and more.

There is no easy answer to this question. You must take into account both the facts of your situation, the divorce laws, and the bankruptcy laws before you can come to a final decision. That’s why you should sit down with an experienced bankruptcy attorney to discuss your situation and what is best for you. We have offices throughout Oregon and in Washington, and we offer free consultations.

Here are just two things you need to think about when facing bankruptcy and divorce:

Divorce and the Automatic Stay
Once a bankruptcy is filed, whether it is a Chapter 7 or a Chapter 13, the “automatic stay” immediately goes into effect. The automatic stay stops all attempts to collect on your debts and it freezes your assets and your property. The purpose of the stay is to allow the bankruptcy court time to sort through what debts you owe and what assets you have (if any) to pay them with. The automatic stay remains in place until your bankruptcy case is fully resolved (by discharge, dismissal or the case is closed).

Since dividing up a couple’s assets and property (in addition to other things) is what the divorce is all about, bankruptcy’s automatic stay means that the family court will be prevented from making any decisions or dividing up the marital property until the bankruptcy is completed. And that means that the divorce will take longer.

 What Type of Bankruptcy?

Another factor to consider is the type of bankruptcy that you should file for. A Chapter 7 (“liquidation”) bankruptcy requires that you meet the income requirements of the “means test.” If your income compared to certain expenses is too high, you will be required to file for Chapter 13 (“reorganization”) bankruptcy instead.

If there is a big difference between what you earn and what your spouse earns, it might make more sense to file for divorce before you file for bankruptcy. On the other hand, if you earn significantly less than your spouse and you file for bankruptcy individually after the divorce is final, you may have a better chance of qualifying for Chapter 7 bankruptcy.

Then there is the fact that if you both agree to file for bankruptcy jointly, you may not qualify for Chapter 7 as a couple, because the income amounts are based on household size, and the income maximum for two people is not twice that of one person.

The intersection of bankruptcy and divorce may be a common occurrence, but it is not a simple one to navigate. But the good news is that you do not need to try to figure all this out on your own. We are here to help.

 Let Us Help You Decide.

If you are facing filing a bankruptcy and either your spouse has filed for divorce, or you have both agreed to divorce, let us help you think through your options. We are bankruptcy attorneys with offices in a number of cities in Oregon. We also have offices in Vancouver and Tri-Cities in Washington. We offer free consultations and we can help you. To set up an appointment, call us toll free at: 1-800-682.9568 or contact us here.

What is Bankruptcy Exemption Planning?


The main purposes of the bankruptcy laws are to:

  • Give an honest debtor a “fresh start” by relieving the debtor of most debts, and
  • Repay creditors in an orderly manner to the extent that the debtor has property available to do so.

One of the primary ways that the bankruptcy law attains its goal of providing debtors with a “fresh start,” is by providing debtors with certain “exemptions” that protect their property from creditors and put it beyond the reach of the bankruptcy trustee.

Bankruptcy exemption planning is the process of making deliberate choices concerning a debtor’s property before filing bankruptcy, to maximize the exemption protections provided by the bankruptcy law.

Warning: Bankruptcy Exemption Planning Can Be Dangerous.

Most people who file for bankruptcy do not lose anything they own because they often file a Chapter 7 bankruptcy and everything they own is “exempt.” Or, if they have non-exempt property, they file a Chapter 13 and are able to use its “adjustment of debts” option to protect their “non-exempt” assets. But bankruptcy is not a “one size fits all” proposition, so this isn’t always the case. Sometimes a debtor may have assets that are not exempt, but cannot be protected well through a Chapter 13. That’s when exemption planning can be very beneficial.

That is not to say that exemption planning is simple. It isn’t. It consists of developing strategies for managing and positioning your assets before you file for bankruptcy so those assets are protected once you do file. Those strategies may better enable you to pay certain creditors that you want to pay, or need to pay, over others that you don’t. But there are risks associated with exemption planning. Because of the dangers associated with exemption planning, especially over-aggressive planning, bankruptcy exemption planning should always be undertaken with the assistance of experienced and informed bankruptcy counsel.

As noted above, one of the main tenants of bankruptcy law is that honest debtors should be allowed to discharge their debts, and the law provides exemptions to allow them to do so. On the other hand, bankruptcy is not meant to benefit dishonest debtors. Section 727(a)(2) of the Bankruptcy Code prohibits any debtor who attempts to defraud creditors by transfers of property, from being discharged. Clearly, then, there is a tension in the law with regard to how much you are allowed to sell or transfer before filing for bankruptcy. To properly engage in exemption planning, you will need the advice of an experienced and highly competent bankruptcy attorney to guide you as to the safest way to engage in asset protection and other strategies, and to inform you on which strategies are likely to be safe, and which are risky.

Don’t Go it Alone!

If you have assets that are not exempt but can’t be protected well through Chapter 13, or are simply considering filing bankruptcy, you may well benefit from pre-bankruptcy planning. If you are in Portland, Eugene, Coos Bay, Medford, or any other city in Oregon, we have an office near you, and we provide free initial case consultations. To schedule an appointment, give us a call or send us an email.

What is the Statute of Limitations on Filing my Personal Injury Lawsuit?

Every state has its own deadline for filing personal injury lawsuits; this deadline is referred to as the “statute of limitations.” This means that a lawsuit must be filed within a certain time limit from the accident or injury, or else the injured party’s legal claim will be barred and they will forever lose the right to sue over that claim. In other words, the clock starts running on the statute of limitations on the day that you were injured. Depending on the state, the statute of limitations for personal injury cases ranges from one to six years. It’s important that, in the event you have an accident or slip and fall case, you are aware of the applicable statute of limitations to ensure that you don’t file your claim too late.

In some states, the type of personal injury claim can affect the time limit the injured party has to file a claim. For example, some kinds of defamation cases and claims involving persons under 18 may be granted longer time limits, while medical malpractice claims might get a reduced time limit. Most states have an exception to the standard statute of limitations time limits known as the “discovery rule” (or “discovery of harm” rule). The discovery rule exception extends the filing deadline in cases where the injured party was unaware of either: the injury, or the fact that the defendant’s actions may have caused the injury.

An example of the discovery rule in action is a medical malpractice claim where a surgeon left a temporary bandage in a patient’s abdomen, but the mistake was not discovered until years later. In this case, the statute of limitations would probably not start to run until the mistake was discovered. However, for this exception to apply, the delay in discovery must be reasonable. For example, if the patient experienced abdominal pain for years after the mistake but refused to seek treatment, the discovery rule exception might not apply.

What Role Does Your Attorney Play in Filing for Bankruptcy

Bankruptcy is a complex process that begins before the time you file and goes straight through to the debt discharge and the period when you will begin the process of rebuilding your credit. An experienced bankruptcy attorney can help you navigate the maze of decisions, paperwork, procedure, and compliance that goes along with a bankruptcy filing.

From the beginning, your bankruptcy attorney is there to determine the right course for you and your specific circumstances. We assess your financial situation, help you to determine your financial goals, and discuss the options that are available and most appropriate for you. We can also begin taking collection calls and other creditor communications on your behalf.

One of the main tasks your bankruptcy attorney will undertake for you is the preparation and filing of your bankruptcy petition. These forms are exhaustive, and often run to 30-60 pages or more. The attorney will ensure that the forms are filled out completely and accurately in compliance with the applicable state law. Once you have reviewed the information, your bankruptcy attorney will file the finalized, signed version with the bankruptcy court.

A bankruptcy attorney will also help you determine whether a Chapter 7 or a Chapter 13 bankruptcy filing is right for you. This involves you and your attorney assessing the size and makeup of your debt, what assets you are willing to risk in a bankruptcy, and your ability (if any) to repay your debts. When you have an initial consultation with a bankruptcy attorney, here are some of the key points to go over:

  • How you can leverage bankruptcy to achieve your financial goals
  • What you can expect during the bankruptcy process
  • Any difficulties or issues specific to your case
  • Whether you should file for Chapter 7 or Chapter 13
  • What can be done to make the bankruptcy process easier for you



Consumer Credit Scores and Federal Law

Most Americans are all too familiar with credit scores, but for those who aren’t, credit scoring is a system creditors use to determine whether or not to extend credit. Credit scores also factor in to how lenders determine loan terms or rates. The Fair Credit Reporting Act (FCRA) is the federal legislation which promotes the accuracy, fairness, and privacy of information in the files of consumer reporting agencies. It’s important for you to be aware of the rights you are afforded under FCRA. The following are some key points to keep in mind:

  • You must be told if the information in your files has been used against you. Anytime a lender or other financial institution uses your credit report or any other type of consumer report to deny your application for credit, insurance, or employment, they must let you know. They must also give you the name, address, and phone number of the agency that provided them with the information.
  • You have the right under FCRA to know what is in your file. You are entitled to request and obtain all of the information about you that is contained in the files utilized by a consumer reporting agency. To receive this information you are required to provide proper identification. Furthermore, you are entitled to a free file disclosure if:
  • Adverse action has been taken against you based on information in your credit report
  • You are the victim of identity theft
  • Your file contains erroneous information resulting from fraud
  • You are on some kind of public assistance
  • You are unemployed but planning on applying for employment within 60 days
  • No one can provide your employer with information relating to your credit report without your consent. Also, a consumer reporting agency can only provide information about you to parties with a valid need to know. Under FCRA, access to your credit files is limited.


Pros and Cons to Chapter 13 Bankruptcy

For people who are ineligible for Chapter 7 bankruptcy, or wish to repay their debts using a repayment plan, filing for a Chapter 13 bankruptcy can be a great option. The following are some pros and cons to declaring a Chapter 13 bankruptcy.


  • While under Chapter 13 the repayment of debts generally take place over a longer term, it’s often an advantage to have more time to budget and make disciplined payments; there can also be more flexibility on the payment terms in the context of Chapter 13. Furthermore, once you have successfully completed the Chapter 13 repayment plan, creditors cannot then obligate you to pay them in full.
  • While you can only file a Chapter 7 bankruptcy once every eight years, you can file for Chapter 13 repeatedly (every two years) if you need to (though each additional filing will show up on your credit report).
  • A Chapter 13 bankruptcy is noted on your credit score for up to seven years, while a Chapter 7 bankruptcy will remain for ten years.
  • If during a Chapter 13 repayment plan you experience a sudden and significant financial hardship like losing your job or accumulating medical bills, your bankruptcy trustee can modify the repayment plan. The court may even allow a debt discharge due to hardship.


  • You limit your Chapter 7 options. You cannot file for a Chapter 7 if you previously filed under Chapter 13 within the last eight years.
  • A Chapter 13 repayment plan can take a long time (up to five years in some cases).
  • Since you will be repaying your debts out of your post-bankruptcy disposable income, you will have cash tied up throughout the duration of the repayment plan.

Your debts could be too high to qualify for Chapter 13. If your secured debts exceed $1,184,200, you will be ineligible for a Chapter 13 bankruptcy.

Waiving Your Rights to Bankruptcy

Creditors want to protect themselves against the prospect of debts owed to them being discharged. One of the ways creditors try to do this is through adding a “bankruptcy waiver” clause to contracts and agreements. It’s important to remember that these waivers are not binding. Any waiver of your future bankruptcy rights is not enforceable. Congress has expressly stated in the bankruptcy codes that a bankruptcy debt discharge halts any action against the debtor “whether or not discharge of such debt is waived.” 11 U.S.C. § 524(a)

Congress found that allowing waivers of bankruptcy rights would not be good public policy. To do so would drastically undermine the consumer right to file for bankruptcy, since if the waivers were permissible every loan or credit offer would contain one. However, the debtor can choose to waive their right to discharge a debt in the following circumstances: the debtor can opt for a reaffirmation of a debt, or execute a waiver that is approved by the bankruptcy court.

While a creditor cannot enforce a waiver of bankruptcy rights, the debtor is not entitled to tell the creditor that he or she will not file for bankruptcy while intending to do so. Taking a loan with the intention of discharging it through bankruptcy later on could be considered fraudulent. Not only can the creditor ask the bankruptcy judge to make the debt non-dischargeable, they may also be able to file a criminal complaint.




What Debts Do You Still Owe After Bankruptcy?

Filing for Chapter 7 bankruptcy is a way for people overwhelmed with debt to get a fresh start on their finances. A debt discharge under Chapter 7 releases the debtor from personal liability for most debts. However, there are some debts that do not fall into this category. Depending on the circumstances, there are some bills that you must (or should) continue to pay.

The basic Chapter 7 timeline is as follows:

  • Mandatory credit counseling
  • Filing of papers to begin the bankruptcy process
  • Creditors’ meeting held about a month after the papers are filed
  • Mandatory budge counseling within 60 days of the creditors’ meeting
  • 60 days after the creditors’ meeting the court will send a written discharge of your debts

For most debtors the discharge order wiping out debts will be entered automatically. Once the discharge has occurred, creditors cannot initiate or continue any actions against the debtor to collect a discharged debt. This includes telephone calls, letters, and any other personal contact.

The following debts may not be discharged under Chapter 7:

  • Alimony and child support
  • Educational loans made or guaranteed by the government
  • Debts for willful or malicious injuries to another person or another person’s property
  • Debts involving death or personal injury resulting from the debtor’s operation of a motor vehicle while intoxicated
  • Debts for certain criminal restitution orders
  • Debts the debtor did not set forth in the bankruptcy filings to the court
  • Debts owed to certain tax-advantaged retirement plans
  • Debts for certain condominium or cooperative housing fees

It’s worth noting that the debt discharge under a Chapter 13 bankruptcy is slightly broader than Chapter 7. The following debts may be dischargeable under Chapter 13, but not Chapter 7:

  • Debts for willful or malicious injury to property
  • Debts involving property settlements in divorce or separation proceedings

If you would like to discuss your situation with one of our licensed bankruptcy attorneys, our doors are wide open. We offer free consultations to people throughout the state of Oregon, and we also have offices in Vancouver, and Tri-Cities in Washington. To schedule an appointment, send us a message through our contact page.


Consumer Bankruptcy: Are You Eligible?

Following the enactment of the Bankruptcy Abuse and Consumer Protection Act of 2005, debtors must pass a means test to qualify for a Chapter 7 bankruptcy. Basically, to qualify you must have little to no disposable income. The means test compares your average monthly income for the six-month period preceding your bankruptcy filing against the median income of a comparable household in your state of residence. Generally, this is not an issue since those filing for Chapter 7 likely have an income that’s significantly below the median.

Even if your income is above the median, there may still be some options. If, due to your income, you do not initially pass the means test, you then complete the means test form in its entirety. Rather than qualifying based on your income, this step entails a balancing process where your overall expenses are weighed against your income. Not all expenses are allowable under this test. But if after deducting the allowable expense from your income you are left with little to no income, you will probably be eligible to file for Chapter 7. This second step of balancing expenses against income is particularly complex, and it is strongly advised that it be conducted with the assistance of an experienced bankruptcy attorney.

Regarding Chapter 13 bankruptcy eligibility, it’s important to remember that you cannot file in the name of a business (not even for a sole proprietorship). For this reason, businesses are generally steered towards Chapter 11. However, even if you are a business owner you can still qualify for Chapter 13 as an individual and still run your business. Business-related debts can be included under Chapter 13 if they are debts for which you are personally liable.

To be eligible for Chapter 13, you must demonstrate to the bankruptcy court that you have enough income (after subtracting certain allowed expense and any required payments on secured debts like an auto loan or mortgage) to meet your repayment obligations. If your secured debts exceed $1,184,200, you are not eligible for Chapter 13.