Debt Collection Practices
I got sued and a default judgment was entered against me. I knew nothing about the lawsuit until I was garnished. Is this legal? Is there anything I can do?
Unfortunately, there are process servers and/or creditors who will falsely represent that they properly served a copy of the Summons and Complaint on the consumer. They figure they won’t get caught because so many people do not fight back. This is an illegal practice and default judgments entered under these circumstances can often be set aside. In some cases, if this illegal conduct is shown to the court, the creditor’s case will be dismissed and the creditor will be barred from re-filing the case. The court may also award you your costs and attorney fees incurred in having the default judgment set aside.
Is it too late if a judgment was already entered against me? Can I still sue a creditor for illegal debt collection practices?
Debt collection practices statutes are designed to protect all consumers. Even if you owe the debt, you have the right to be free from harassment and misrepresentation. The law also provides that if you win your case, the creditor must pay your costs and attorney fees. Under federal law, you have 1 year from illegal practice to bring a claim. Under state law, the time limit is generally 6 years.
Can credit card companies "charge off" my account and then sell my account to another company ("debt collector") to collect?
Yes, they can. Typically, credit card companies sell delinquent accounts to debt buyers for a fraction of the amount owed. However, in order for the debt buyer to win in court, the debt buyer must prove that it is the lawful owner of the account and that the amount it is claiming is correct. Many debt buyers do not have the proper proof of ownership or proper proof of the amount owed necessary for them to win in court. The “business model” of many of these debt buyers is to hope that the consumer will not be aware of his or her rights, will not consult an attorney, and will just ignore the complaint, allowing the debt buyer to have a default judgment entered in its favor. Consumers who hire an attorney are frequently able to fight these cases and avoid paying debts they do not owe or, paying more on a debt than they should. Even if you do not want to consult an attorney, you should never ignore a summons and complaint.
No. The creditor must first obtain a judgment against you. There is also an automatic 21-day stay period immediately after entry of judgment. During this period, the creditor cannot take any enforcement action against you. Even then, you have the right to petition the court for an installment payment order, allowing you to make installment payments according to your ability to pay.
I am being harassed by constant phone calls, even at work, and the creditor is even calling friends and family. Can they do this?
Creditors are not allowed to harass you for purposes of collecting a debt, even if you owe the debt. “Harassment” includes calling you multiple times a day, calling you at inconvenient times of the day or night, calling you on Sundays, at your place of employment if you have told them not to, and calling you when you have informed them that you are represented by an attorney. It is also illegal to call anyone other than your spouse about a debt. The only call to a third person that is allowed is to obtain “location information.” If the creditor already has your correct address and phone number, it is illegal for the creditor to contact third parties. It is also illegal, even if calling for location information, for the creditor to disclose that he or she is calling regarding a debt.
Can a credit card company or debt buyer add charges to the debt that are not included in the original agreement?
No. It is a violation of the debt collection practice laws for a creditor to misrepresent the amount of debt. Adding charges that are not allowed under the applicable contract is an illegal misrepresentation.
No. Unfortunately, many credit card companies and debt buyers will try to “guilt” consumers into paying accounts that are owed solely by a spouse or other family member. This is particularly true where the responsible party is recently deceased. It is illegal to misrepresent the legal status of a debt. This includes misrepresenting that a consumer is liable for the debt of another when that is not the case.
I co-signed for a loan and the principal borrower defaulted. Can the creditor report the delinquency on my credit history?
Before reporting the delinquency on your credit history, the creditor must provide you with written notice, giving you at least 30 days in which to pay the debt or make other satisfactory arrangements with the creditor. If the creditor fails to provide you with the written notice and opportunity to act, it is illegal for the creditor to report the delinquency on your credit history.
Six years from the date you defaulted on the account, or six years from the date of your last payment, whichever is later. In other words, whenever you make a payment on an account, you extend the time that the creditor has to bring suit. It is an illegal practice for a creditor to represent that any legal action can be taken against you if it has been more than six years since your last payment on the account.
Generally, information concerning a lawsuit or judgment against you can be reported for seven years or until the statute of limitation runs out, whichever is longer. The same is true of delinquent payments and charge-offs. A common but, illegal and underhanded tactic, is for collection agencies to update their reporting status, so as to extend the time that derogatory information remains on your credit history. You have the right to challenge this misconduct and you should do so. Lower credit scores can not only reduce your access to credit, but can also raise your insurance rates and even prevent you from obtaining a job in certain employment sectors.
Since I'm already having trouble paying my bills, the last thing I think I can afford is to hire an attorney. How much would it cost me?
Most attorneys will at least provide you with an initial phone or office consultation at little or no charge. Also, the laws applying to illegal debt collection practices require that the creditor pay your costs and attorney fees if you win your case – this is on top of whatever money damages you are entitle to recover. Even if the creditor has not violated the law and you owe the debt, attorneys can often save you money and/or reduce the damage to your credit rating by negotiating more favorable terms for you, such as lowering the amount of the debt, obtaining better payment terms, and in some cases, even having the account deleted from your credit history, depending on the circumstances.
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