No Fee Balance Transfer Credit Cards (Deals Within The Last Month)
Find a balance transfer at a low interest rate where they don't charge
you anything for making the transfer!
Eloan Offers some credit cards with very low rates.
www.debtworkout.com/altcc.html Dedicated to helping debtors and others with credit problems to
obtain either a secured or unsecured credit card for the purpose of
re-establishing good credit.
Google Search On The Lowest Rates
Get the best savings for auto loans, credit cards,
savings accounts and CD's, home equity loans & mortgages and unsecured
credit lines.
Credit Scores (Consumer-SOS) A good credit score is like having a good SAT score. If your score is
high, creditors love you and will give you cheap rates. If your
score is low, you'll have to work twice as hard just to get the loan.
See How To improve it!
5
Steps To Credit Repair Rebuilding Your Credit Rating through correcting errors, negotiating with
creditors and adding pertinent information to your credit file.
State
& Federal Laws Governing Credit Matters (All 50 States) Select your state and see what additional protections your state offers in
addition to federal law. For federal laws, scroll down to their federal
section and click on the link of your choice.
Raising Your Credit Score, What Matters Most Advice From Someone Who
Has Worked For A Consumer Credit Counseling Agency)
Raising Your Credit Score, Why
It Matters & What Matters Most Why It Matters Scores range from 300 to 850. A score of 700 is considered good
credit, with 750 and above being excellent. The three credit reporting
agencies that report your score are Equifax, Experian and TransUnion.
Below 600 means you won’t get a loan unless you pay extremely high interest
rates, assuming you get a loan at all.
As a rule of thumb, you'll have a good credit score if you pay your bills on
time and use no more than 20% of your credit limit. To raise your credit
score, you'll also want to know your
Credit Score Break Down By
Percentages.
The Cost Of A Bad Credit Score Consider what credit can do for twins that buy identical cars
for $20,000. One has a credit score at 760 and pays 4% interest, while the
other has a score of 560 and pays 18-22%. Over the life of the loan, the twin
with the lousy credit score pays 2 to 4 times more!
To purchase a
home, generally you want your score to be 640 or better and all
delinquent debts to show as "paid" on all three reports. Average score is 678.For all three of your credit reports go to
annualcreditreport.com.
Scores cost around $25 for all 3, but you can get all 3 reports without
scores free 1x a year. Reports without scores are also free if you've recently
been denied credit. You'll want to review these to see if there are
collection accounts as such can hurt your chances of getting a
loan.
How To Improve Your Credit Score To improve credit scores the fastest and with limited resources, pay
the smallest collection accounts first-either settling it in writing or
by paying it off in full. Then forward proof it's paid to all 3 credit agencies and pay
the next smallest collection account first and so on.
If you have
current credit cards while doing this, pay the minimums on them until all
the collection accounts are paid. Then pay off the smallest credit card next,
or at least get the balance to be 20% or less than its credit limit. Then pay
the next smallest and so on.
Paying off bad credit can
temporarily decrease the score but is good in the long run.
Sometimes paying off old collection accounts can lower your scores at first
because by paying it, it suddenly becomes "new debt". But in the long
run it's worth it because otherwise, you can’t get the scores up for the loans
you need. The exception is when the debt is almost 7 years old and will drop off anyway.
G
etting
a secured credit card or keeping balances low on open credit cards. If one does not have any open credit cards and has a score below 620, then
getting a secured credit card to improve credit may be their only option.
You can get them cheaply at Wells Fargo, or bestrate.com or Bankrate.com
or your credit union.
Secured credit cards are
attached to one’s bank account, usually a $300 limit and report to all 3
credit agencies. One can put $10 on it every other month and pay it off to $0
and as long as all delinquent bad debt is cleaned up first, the credit scores
should go up.
35% of the credit score is based on payment history and 30% based on
outstanding debt. So collection accounts kill the credit scores very quickly.
If you miss a mortgage payment/are 1 month late, and you have an 800 credit
score, it will probably drop 150 points, yet if you have a 600 score it may
drop only 70 points. Any late payments on credit cards
or car payments or a mortgage can undo all the good work done previously. And it
is takes a lot more time to rebuild credit than to destroy it.
Types of credit,
i.e. credit cards, versus car payments or mortgage also play 15% of credit
scores. So if one person has perfect credit with just credit cards and student
loans, he might get a 796. But another person may have perfect credit with
a mortgage also and get an 805.
Your credit to debt ratio matters so keep it as low as you can. Someone
with 5 credit cards who's paid on time all their life but has 80%
of their credit maxed out (high balance compared to credit limit) could have
a modest score of 690,
while another in the same boat but with only 20% maxed out gets a great score of
760.
Bad Timing
Matters: If You Pay Your Debt in Full
Each Month, Find out When Your Credit Cards Report Your Account Status To
The 3 Credit Reporting Agencies. Every month
,
your credit cards report a picture of your balances to all 3 credit
agencies. This snapshot may be inaccurate if each month you pay off your
debt entirely, but only after the picture is taken.
So call each credit card
you use, find out when they take this snapshot and pay off your monthly debt
before then.
Hard Credit
Inquiries Can Also Greatly Lower Your Credit Score.
Those people whom are trying to get credit i.e. via applying for credit cards
or a car loan or a house should be careful because every time they do, the
bank or car dealers will do a “hard pull” inquiry on the credit scores and
each hard pull may lower the score 10-30 points. Sometimes a hard pull is
inevitable. If you do a bunch of hard
pulls within a 2 week period, it counts only as 1 pull and is better for your
scores than if you spread out hard pulls through a longer time/multiple pulls.
You can always ask
a business, “are you going to do a hard pull or a soft pull on my credit?”
When our company
pulls from Equifax, we do a soft pull that doesn’t effect the scores. When
you pull your credit yourself, it is also a soft pull. Anyone else pulling
your credit to get you a loan/car/credit cards/mortgage etc, will do a hard
pull.
Judgments
and liens have to get paid also, consider them equal to collection and
delinquent accounts.
No one wants to give out loans to people who have other debts they defaulted
on and won't pay. The lenders that do will be sure to charge
horrifically high interest
rates.
Clean Up Old Debt over
7 years old and be careful about paying old debt about to drop off. If a debt is 7 years or older, it typically falls off the
report like it never existed. If it doesn't,
have it removed.
If you get a collection agency calling you
for a debt that is 6 years and 11 months old, and you get scared and pay them
$1, then that debt’s clock resets and it won’t fall off for another 7 years.
You Should Always Order All Three Credit Reports As One of Them
Could Contain Wrong Information Not Found On The Others.
Credit Scores (Consumer-SOS) A good credit score is like having a good SAT score. If your score is
high, creditors love you and will give you cheap rates. If your
score is low, you'll have to work twice as hard just to get the loan.
One Spot To Order All 3 Credit Reports Order a free credit credit report on line, by
phone or by
mail from each of the nationwide consumer credit reporting companies:
Equifax, Experian and TransUnion.
TransUnion Can order credit reports by phone or by mail. Reports are free if you've
been denied credit in the last 60 days, live on welfare or suspect
fraudulent items on your credit report. Colorado, Georgia, Maryland,
Massachusetts, New Jersey and Vermont residents are automatically
entitled to a free report regardless of their circumstances.
Experian Can order free copies of your credit report online if you've been denied
credit in the last 60 days, live on welfare or suspect fraudulent items on
your credit report. Colorado, Georgia, Maryland, Massachusetts, New Jersey
and Vermont residents are automatically entitled to a free report
regardless of their circumstances.
Equifax
(Scroll Down Page for Free Credit Report Info) Can order free copies of your credit report by phone if you've been
denied credit in the last 60 days, live on welfare or suspect fraudulent
items on your credit report. Colorado, Georgia, Maryland, Massachusetts,
New Jersey and Vermont residents are automatically entitled to a
free report regardless of their circumstances. For a fee you can also
order your credit report online.
Get
Your Free Credit Score. E-loan will
give you your one time free credit score just for filling out a loan profile.
There is no requirement to apply for a loan, and no fee for the service --
just log on and answer a few questions about the kinds of credit information
that would be useful to you. Then, fill in your name, your Social Security
number, your address, and the first six digits of any credit card account or
installment loan you have. Within a few hours, you have the same number that
lenders use to determine just how fast they'll say yes to your loan
application.
Credit Scores (Consumer-SOS) A good credit score is like having a good SAT score. If your score is
high, creditors love you and will give you cheap rates. If your
score is low, you'll have to work twice as hard just to get the loan.
http://mix6.com/credit/credit.html#TOC A great site on the ins and outs of credit and credit reports.
Learn how to challenge credit reporting errors, order your free credit
report on line and what your credit report can and can't be used for.
It also tells you how to rebuild and improve your credit, supplies
sample form letters, tells you about the laws that control debt collectors
and has lots of valuable help agencies. Back To Top
http://mix6.com/credit/credit.html#TOC A great site on the ins and outs of credit and credit reports.
Learn how to challenge credit reporting errors, order your free credit
report on line and what your credit report can and can't be used for.
It also tells you how to rebuild and improve your credit, supplies
sample form letters, tells you about the laws that control debt collectors
and has lots of valuable help agencies.
Where To Go For Help Getting help from the government, non-profits and the media.
State
& Federal Laws Governing Credit Matters (All 50 States) Select your state and see what additional protections your state offers in
addition to federal law. For federal laws, scroll down to their federal
section and click on the link of your choice.
http://mix6.com/credit/credit.html#TOC A great site on the ins and outs of credit and credit reports.
Learn how to challenge credit reporting errors, order your free credit
report on line and what your credit report can and can't be used for.
It also tells you how to rebuild and improve your credit, supplies
sample form letters, tells you about the laws that control debt collectors
and has lots of valuable help agencies.
Fair
Credit Reporting Act Establishes procedures for correcting mistakes on an
individual's credit record. A credit record may be retained seven years
for judgments, liens, suits and other adverse information except for
bankruptcies, which may be retained ten years. If a consumer has been
denied credit, a free credit report may be requested within 30 days of
denial.
Fair Credit Billing
Act Establishes procedures for the prompt correction of errors
on open-end credit accounts. It also protects a consumer's credit rating
while the consumer is settling a dispute.
Where To Go For Help Getting help from the government, non-profits and the media.
Where To Go For Help There are five places to go for free
assistance. Plus two more ways to make the bad guys behave. For a real live person to champion your
cause, there's the Government,
Consumer Advocates and the
Media. There's also
Plaintiff's
Lawyers,
who will take your case for free-as long as they can collect their
attorneys fees from the other side (i.e. when a debt collector
violates the Fair Debt Collection Practices Act).
To generate
lots of online publicity, be sure to use the
Internet Complaint
Databases. These are often monitored by the government, the police
and TV reporters. The BBB for example, may also contact the offender,
who to avoid a bad rap on the Internet may decide to negotiate. So
don't forget to use them unless your attorney says otherwise.
Finally,
remember to put presure on
the Trade Associations and
Licensing Boards of
the companies doing the wrongdoing. These groups tend to protect their
own. But with a little media exposure they may clamp down on errant
members. (so it doesn't look like they're all a den of thieves).
The Consumer Finance Protection Bureau
(CFPB) The
CFPB enforces over a dozen consumer financial protection laws,
including the Fair Credit Reporting, Fair Debt Collection Practices
Act, and Truth-in-Lending Act. In addition, the CFPB has the power to
stop practices that are “unfair, deceptive, or abusive.” The FTC shares authority with the
CFPB to enforce the consumer protection laws with respect to non-bank
financial institutions.
Federal
Trade Commission (Online Complaint Form) The FTC regulates credit reporting agencies and can impose fines and other
penalties. Choose a complaint category on the left, which will give you
several sub-categories on the right.
Your State's Attorney General Office The feds care about federal laws, but your
state AG's office can also join the party! Especially when fed and
state laws overlap. For example, a federal FDCPA violation often
involves a violation of the GA Fair Business Practices Act.
Your Secretary of State's Office Your SEC regulates the licenses of many
professionals but excludes lawyers, bankers and doctors. Be sure to
file a complaint with the offender's licensing board.
Banks
& Credit Unions (Consumer-SOS) If your debt is from a bank or credit union, find out who
regulates them.
Pro Bono Directory of Free Legal Help Click on a state for a list of free legal
help groups. Most are for low income wage earners but, some are not.
These groups rely on grants and donations from the public, which
means, the more sensational and newsworthy your case the better.
(Fighting Cooling & Winter debt collectors more senational than small
fry Jo Shmo debt collectors).
Southern Poverty Law Center Fights for economic justice, immigrants'
rights, children's rights, criminal justice reform and more. See what
they've done against Unfair Debt Collection.
They also fight against hate groups.
National Consumer Law
Center (NCLC) NCLC is a group
of legal and policy experts who draft rules for a fair marketplace.
They also protect consumers in consumer
credit, banking, home energy, and other areas of special importance to
low-income families and older adults. Sometimes they actually
litigate. Other times they press for legal reform. They have
fought against debt-collection “mills” – large legal practices that generate and
file tens of thousands of debt collection cases a year.
The National
Association of Consumer Advocates (NACA) This NACA has over
1500 attorneys who represent hundreds of thousands of consumers
victimized by fraudulent, abusive, and predatory business practices.
NACA members are committed to advancing the cause of just treatment
for and ethical representation of consumers. Unlike run of the mill
plaintiff attorneys, these guys might actually want to drive a debt
collector out of business.
Consumer Federation of America (Press Contacts) Often
interviewed by reporters for debt collection matters. Coordinate with
them and local news for publicity-especially if your debt collector
has lots of bad history on the Internet.
The National
Association of Consumer Advocates (NACA) This nationwide
membership organization of more than 1500 attorneys, represents
hundreds of thousands of consumers victimized by fraudulent, abusive,
and predatory business practices. NACA members are committed to
advancing the cause of just treatment and ethical representation
of consumers.
Find The AARP
In Your State The AARP offers legal advocacy for seniors and may also have state
specific consumer brochures which are available to everyone.
USA
TV News Stations (State By
State)
Reporters like real live victims and the fact that something has been
reported to the police, a government regulator or a consumer rights
advocate.
Find
Your Local Newspaper Give them a little bad press and you're bargaining power increases
tremendously. Select your state, and then click on your county or city for
the proper media to report to. (DC Not Included).
ProPublica ProPublica is an American nonprofit
organization based in New York City. It writes articles against debt
collectors and the big banks who use them. See At Capital One, Easy Credit and Abundant Lawsuits.
(A ProPublica
analysis of state court filings reveals that Capital One sues its
customers far more than any other bank.).See their website for other
issues they deal with.
BBB:File A Complaint In Their Database These complaints rank high in a Google
search, which means the offender immediately gets a stain on their
reputation-makes them more willing to negotiate. The BBB will
contact them to hear their side of the story, and it looks bad if they
don't respond. Often, BBB complaints are
monitored by the government, the police and the media. So file a
complaint unless a court or your lawyer says otherwise.
Ripoff Report.com Use to spread the news about bad companies
doing bad things. Creates bad publicity. Be careful about defamation.
Make it factual, not emotional. Back up what you say with facts. See
FAQs
before you file.
To Search For Complaints
(Ripoff Report) Choose Category in left hand column,and
select type of business under it.
For example, For complaints against debt collectors, choose the
catgory of finance and scroll to "collection agency" then below choose
state and hit search, (leave right hand column alone). See Ripoff Report Complaints against GA Debt
Collectors.
Yelp! And yes, people have complained even about
debt collectors!
Legal Rights Advocates, PLLC(888-692-9458) Plaintiff's law
firm that specializes in helping clients stop the harassment from debt
recovery practices by creditors, including Capital One,
and sue them, if needed. They will sue over debt collection
practices deemed illegal under the TCPA and
the FDCPA.
National Consumer Law
Center (NCLC) NCLC is a group
of legal and policy experts who draft rules for a fair marketplace.
But they also have lawyers who might take your case, or get you help. They protect consumers in consumer
credit, banking, home energy, and other areas of special importance to
low-income families and older adults. Sometimes they actually
litigate. Other times they press for legal reform. They have
fought against debt-collection “mills” – large legal practices that generate and
file tens of thousands of debt collection cases a year.
The National
Association of Consumer Advocates (NACA) This NACA has over
1500 attorneys who represent hundreds of thousands of consumers
victimized by fraudulent, abusive, and predatory business practices.
NACA members are committed to advancing the cause of just treatment
for and ethical representation of consumers. Unlike run of the mill
plaintiff attorneys, these guys might actually want to drive a debt
collector out of business.
Creditor Associations That Claim To Follow The FDCPA See if your
collector is a member, and get the association to police its own or
explain to the media why they are doing nothing. To find their trade
association, Google the company name
along with the words creditor
association or just association.
ACA International
(Contact Their Media Relations) ACA brings together third-party collection
agencies, law firms, asset buying companies, creditors and vendor
affiliates, representing more than 230,000 industry employees. See how
they educate members on the FDCPA
(and presumably stress compliance with it).
Occupational Licensing
Boards Banks, Lawyers, Realtors and other
professionals are often regulated by state or non-profit licensing
boards who are in charge of disciplining their own members.
Credit
Card Freedom Page Learn how to negotiate for lower rates, calculate the cost of credit
and manage your debt. Find out how to avoid late fees and use balance
transfers to your advantage. Organize your debt with the debt charts
they provide.
Bartering For Goods or
Services When You have No Cash You can improve your chances for finding someone willing to
barter with you if you focus on an equitable trade, are upfront and detailed
with barter terms and are willing to get creative. Check out the sites below.
What every debtor should know
before negotiating with their creditors.Learn about the risks and realities of being in debt, the
importance of statutes of limitation, and how long a debt can remain on
your credit report.
Sue GA Debt Collectors For More $ Under State Law (Consumer-SOS) If you're a pro se
debtor suing without a lawyer, don't settle for the mere $1000 you get
under the FDCPA or the $500 for each
TCPA violation! Tack on state claims too! Under the GA Fair
Business Practice Act you can get $1000 for each violation of the
FDCPA, plus triple damages!
Which Debt Collectors Must Follow The FDCPA? (Consumer-SOS) Not all debt collectors are created equal.
Here's recent case law to show who must play by the rules and who
doesn't have to. Plus how to expose them when they're lying to you.
Can A Debt Collector Restart The Clock On My Old Debt? The
clock can reset from the moment you pay part of it, or even if you say
the wrong thing over the phone such as "Yes, I can't pay it, but I agree
I owe it." The statute of limitations on collection will usually vary
depending on whether the account is considered a contract, negotiable
instrument or an account. Every state's laws are different.
How To Use The Fair Debt
Collection Practice Act To Deal With Debt Collectors-Georgia (Consumer-SOS) Notes from a Georgia lawyer continuing education seminar on how to use the FDCPA,
especially once you've been
sued. Even if you haven't been sued, you can use this information to scare
off debt collectors who don't have their papers in order. Includes how to
challenge the debt based on ownership and amount, poking holes in the
collector's documents and showing their documents are unreliable under the new
Georgia hearsay rules on business records. Covers credit card debts, statutes
of limitation, student
loan debts, a little on auto and mortgage debts, and your rights when the debt
is a federal or private student loan. AND FOR LAWYERS: it has questions to ask your
client and how to negotiate so the lawsuit doesn't appear on your client's credit
report.
Options, Tips & Advice
(Consumer-SOS) Negotiating your debt, credit counseling, bills to pay off first, etc.
Basic Debt Collection and Consumer Protection In Georgia How creditors can and cannot collect debts. See situation # 9 and #10 for Auto Repossession. This document describes the law relating to debt collection and basic
consumer protection laws.
Fair
Debt Collection Practices Act (Regulates Debt Collectors)
Describes what debt collectors may and may not do if you
owe money. It applies only to third party debt collectors (i.e.,
collection agencies), or those who use a name other than their own in
collecting consumer debts. Very few commercial banks, savings banks,
savings and loan associations, or credit unions are covered by this Act,
since they usually collect only their own debts. Complaints concerning
debt collection practices, such as harassment or abuse, should generally
be filed with the Federal Trade Commission.
Using The Fair Debt Collection Practices Act Debt Collection Letter Use this letter to ask collection agencies to provide you with information
concerning their basis for claiming that you owe a debt ("verification of
the debt") and also ask them to stop contacting you. This only applies to
collection agencies, not to creditors who directly sold you goods or gave
you credit or loaned you money.
Fair
Credit Reporting Act Establishes procedures for correcting mistakes on an
individual's credit record. A credit record may be retained seven years
for judgments, liens, suits and other adverse information except for
bankruptcies, which may be retained ten years. If a consumer has been
denied credit, a free credit report may be requested within 30 days of
denial.
Fair Credit Billing
Act Establishes procedures for the prompt correction of errors
on open-end credit accounts. It also protects a consumer's credit rating
while the consumer is settling a dispute.
Where To Go For Help
Getting help from the government, non-profits and the media.
State
& Federal Laws Governing Credit Matters (All 50 States)
Select your state and see what additional protections your state offers in
addition to federal law. For federal laws, scroll down to their federal
section and click on the link of your choice.
Settling Debt With Collection Agencies-When And How To Do It
Collection agencies are 3rd party agencies that buy the bad debt
from the original creditor for 1/10th the debt, usually 4-6 months
after last full or partial payment was given. They can be settled for often
30-50 cents on the dollar or ½ to 1/3 what they say you owe. If you settle an
account, get it in writing on the collection agencies business letterhead
before you pay anything. Then forward copies of proof of payment and
settlement letter to all 3 credit agencies, certified mail, return receipt.
Never wait for a collection agency to update the credit agencies for most
never do so. And if you don’t, chances are it will still show unpaid on
credit reports and that might cost you a loan and or keep your score lowered.
Best
time to settle with a collection agency representative is the last week of the
month, for it's at the end of the month when they're rated by their superiors
for how much money they've collected.
I am writing pursuant to the
Fair Debt Collection Practices Act, 15 USC 1692g, to
inform you that I dispute the alleged debt associated with FRG
Number 167790-120209 relating to the
health care plan
administered by Paradox Inc.
This is the first letter I received
regarding this alleged debt.
I do not believe I owe the amount alleged in your letter.
Thus, I am requesting that you provide the following
information:
Please explain the nature of the alleged debt - that is,
what the money I allegedly owe is for;
Please provide an accounting explaining how you calculated
what you allege I owe;
Please provide me with copies of any contracts or
documents which form a basis for the alleged debt; and any
documentation giving you legal authority to collect the
alleged debt; and
Please provide me with the name and address of the
original creditor.
I further request that you take the following actions:
If you have contacted any credit agencies regarding this
alleged debt, please inform them that I am disputing the
debt;
Please also forward a copy of this letter to the
creditor who alleges that I owe the debt at issue, and
inform them that I am disputing the debt.
Please send me copies of any documents or correspondence
generated from #1 and #2.
Any further contact should be made solely in writing, and
should be submitted to my home address by mail.
Scope of FDCPA:
It keeps 3rd party collectors from harassing you, contacting others about
your debt, or making legal threats they can't or don't intend to act on.
Debt Collectors can be fined $1000, plus damages, plus costs, plus attorney fees! Proving a violation
won't cancel the debt but it could scare them off or help you when negotiating
with them.
Challenge Debt
Ownership & Amount: Collectors must prove they have the right to collect the
debt (show proof they own it) and show proof of the amount owed. Demand
their paperwork and challenge their chain of title and debt amounts, especially if
something looks fishy. This can scare off shady collectors that don't really own
the debt or can't prove the amount they say you owe.
Statutes of
Limitations: If Non Federal debt is past the SOL, debt collectors can't haul
you into court or even threaten court action. For private loans, this means that
they can't get a court order to garnish your wages or seize your bank accounts. Federal loans don't have a statute of limitations. And they can garnish your
wages administratively even without a court order! But you can always challenge
your debt amount.
Key Dates:
6 years after default (SOL for Georgia on contract matters such as credit
card debt, private student loans...means they can no longer sue or garnish unless a
federal debt), 180 days (bad debt written off by original creditor and
sold to collector, usually sold for pennies on the
dollar=room to negotiate with debtor since they paid so little for it) 270 days= Student Loan Default and triggers
right to seek regular and administrative garnishment: They can now wage garnish
your wages, take Social Security
benefits and intercept tax returns. They can’t garnish before then.
Negotiations:
Debt Buyers (Debt Collectors) can negotiate with you more so than the original
creditor because they buy the debt for pennies on the dollar. Also negotiate how your
settlement is listed so the lawsuit stays off your credit report.
Ask
for a consent ORDER rather than a Consent Judgment.
Defenses For
Lawyers: Can challenge Collector's "Business Records" under the new GA
Hearsay Rules.
Defenses For
Lawyers: In Answering a complaint, always plead the real party in interest,
preserve your defenses, deny alleged ownership of debt when you don't have
enough information, and scrutinize the bill of sale they attached to the
complaint (always challenge ownership and amount, if applicable).
Student Loans:
If private, can challenge the same way as credit card debt and with same SOL. So
it's important to know if
your debt is public or private. Ways to rehabilitate loan to avoid being
garnished.
FAIR DEBT COLLECTION PRACTICES ACT
(Strict Liability Statute) If a Debt collector is liable under the
FDCPA, it doesn’t cancel the debt. But it allows for statutory damages up to
$1000 per defendant. And you can also sue for actual damages, attorneys fees
and costs, in addition to the statutory damages.
A violation of the
FDCPA= violation of the
GA
Fair Business Practice Act.First
Nationwide Collection Agency v Werner (Georgia). The Georgia Fair
Business Practice Act only applies to consumer debts, not to debts incurred
business to business. To assert your rights under the Georgia Fair Business
Practice Act,
you must send out a demand letter 30 days in advanced, so if you cant’ do that
in time, you may have to do without it and rely only on the federal FDCPA. (But see
if you can do both!) Best practice is to file in federal court to prevent
removal. Federal Court is much more rule intensive than state court.
So read up on the federal rules of Civil procedure for
your GA fed district court and talk to the court clerk.
Who The FDCPA Covers and Doesn’t
1.Is this person a debt collector other than the creditor? (a
direct creditor is
also under the FDCPA if they use a different name!)
2.Is it in regards to a consumer debt? (does not apply to business debt or
commercial line of credit) Primarily for personal, family or household
services.
3.Does
their
Business have the principal purpose to collect debts, i.e. includes
attorneys who debts. (see Heintz v.
Jenkins, 514 U.S. 291 (1995).
4.If Government Collecting, no FDCPA.
Typical FDCPA Violations
Contacting a Coworker or Neighbor
Falsifying the amount, or legal character of debt,( saying they'll
garnish wages on a private debt when they have yet to file suit or win a judgment. Same goes with
filing a lawsuit when such is past the 6 year statute of limitations to
collect).
Calling excessively per day (8 times a day...lots of hang-ups-get
evidence from your cell phone records).
Voicemails-deemed as a communication so they must
reveal they're a debt collector. Yet
if they do, it could violate your privacy if heard by a 3rd
person! So if you're a debt collector, it's a good practice not to leave
messages. This is why lawyers collecting debts don’t leave voicemails!!!
It's not cause they’re nasty.
Failure to communicate a debt is disputed or putting false info on credit
report.
Harassment & Abuse Includes:
False or Deceptive Misleading info
about what they can do to you (garnish when SOL expired, or before they've won
the case, etc.)
Lots of
hang-ups to drive you nuts
Foul language
Note: threats a sophisticated person
would see as harmless
won't stop a FDCPA violation. The standard is based on the least sophisticated consumer.
So if the collector sends a loosely worded garnishment that's in any way
misleading, they
could get in trouble for falsifying the legal character of the debt,
i.e. making false threats as to what will happen to the debtor.
Collector Defenses
Bonified Error Defense (1692(k)(c) Business
must have procedures in place to avoid this error.
Debt Ownership To collect on a debt, the debt collector must first prove they own it.
This is trickier than it seems because often the debt is
sold over and over again. So upon demand, the collector must show a
chain of title proving how this debt got from point A to
point C. The FDCPA allows you to
challenge the debt,
and the collector must respond or back off. Demand their paper trail and look for gaps.
Collector Shows Transfer
of Your Debt But Not How They Legally Acquired It. For instance,
say the debt collector "Bob Jones Co." says you owe them $3K for an agreement
originally between you and Sam's Club. As proof, they show your credit card
agreement with Sam's Club and that it was sold to Adco Collection Agency. THIS
IS NOT ENOUGH. This may show how Adco got the debt. But it doesn't show how
Bob Jones Co. did. Demand they show the paper work that clearly identifies
not just your loan, but how they
got it, i.e. a transfer from Adco to Bob Jones Co. Otherwise, you could be paying someone who
doesn't lawfully own the debt! And worse, you may have to pay it again
when the
true debt owner comes after you.
Collector Shows A Debt But
Without Enough Info To Determine It's Yours.
For example:say their "purchase account"
paperwork shows a date only, but
is missing the client’s name or account#? So what proves this is really
your account? The test is a common sense one. For example: At least
as far as who owns the debt, a court found it was sufficient for the collector
to provide the client’s name, account #, date of sale, but with a
redacted amount. Between the proper companies, this chain of title was
sufficient. Rutledge
v. Gemini Capital Group(Georgia Court of Appeals, 2014). But you can
still challenge the amount.
Amount Much Higher Than
Original And With No Explanation
Attached Documents Are
Inconsistent In Naming The Proper Companies
If you're in doubt, make it
hard on the collector. Ask them for a list of all assignments.
Scrutinize what the
assignments actually say. Are there holes or gaps? For example: Don't be
fooled by companies that sound similar. GE Capital ≠GE Management.
If GE Management shows only that your debt was assigned to GE Capital but no
proof how it got to GE Management, CHALLENGE THEM ON IT.
Debt Amount Upon demand, a debt collector must also show proof they're entitled to the
claimed amount. When in doubt, make them show the amount is accurate. Dispute
excessive interest, double charges, ambiguous charges, etc.
Check the Bill of
Sale If Attached/Demand They Send You Proof They Acquired This Debt There are many errors and inconsistencies that you can spot to show
it's not clear who owns the debt or what the debt amount is. When pressed, the
collector will provide some paperwork showing a debt was sold.
The test is what a judge can tell from this information.
If the debt amount is roughly in the ballpark of your original debt, don't
expect much in challenging it.
Key Dates:
6 years after default (Georgia Statute of Limitations on contract matters such as credit
card debt, private student loans...means they can't sue you or garnish unless a
federal debt), 180 days (bad debt written off by original creditor and
sold to collector, so probably sold for pennies on the
dollar=room to negotiate with debtor since they paid so little for it) 270 days= Student Loan Default: triggers
right to seek regular and administrative garnishment (the latter is for fed
loans only). They can now wage garnish
your wages, take Social Security
benefits and intercept tax returns. They can’t garnish before then.
Do you recognize this debt? Is it you? Is it ID theft? Mistaken
Identity? If they say no, pull their credit report, and see if it's mistaken
there too. NOTE: The debtor might not always know who the creditor is. For
example: Best Buy card could be owned by HSBS or GE Money Bank. Target has
their own bank but Wal-Mart doesn’t. So expect another creditor behind it and
don’t be quick to assume it’s bogus if the client doesn’t recognize them.
Is this the first
interaction you’ve had with creditor before they sued you? When was the last
time you made a payment? (statute of limitations on credit card debt =6 years
from the date of default.) Was that the date of your last payment? Date of last
payment prior to the charge-off date?
SOL for Credit
cards=6 years from date of when the contract becomes due and payable (but that’s
unclear). So when does the GA statutes of limitation start running, so that after 6
years, the debtor can no longer be sued or garnished? Does it start on the first month they
didn’t make a payment and never made a payment again? i.e. the time when the
creditor could technically accelerate all payments in full? Or does it reset if the
debtor is allowed to make another payment and the debtor does so, even though they missed 3
months in between? You can look at the credit card agreement to see when default
is. Use contract law/check language of credit card agreement for what constitutes
default. Then argue for the earliest date possible if such means the 6 years has
already passed.
Never advise clients
to make a payment to a collection agency (aside from law firms which can sue you
if you don’t pay). If the client's original creditor is still calling, make a
deal with them. Assuming the account is still with the original creditor and hasn't been
sold.
How Was the Client
Served? Sewer service? (sloppy service from people who serve 20k people a month?)
Is this the client's only
debt? Don’t file bankruptcy when one or two cards owned by debt buyers.
Negotiate with them-they buy the debt cheaply so they can still make a profit.
What Is Your Clients
Goal? Settlement, Dismissal, Go For Broke?
ANSWERING THE LAWSUIT Must answer within 30 days or in default. You can open the default within
15 days after that, by filing answer and paying court costs, but the best
practice is to file a motion to reopen the case. You have an automatic right to open until after that 45 days. Then
you must file a motion and rely on the
court to decide.
Preserve Defenses Always plead the real party of interest (don’t take the word of the debt buyer).
So if you get a typical collection complaint, saying debt buyer X owns the debt,
deny under
OCGA 9-11-8(b) (you deny as you do not have sufficient info to
form a belief that this is the lawful creditor.)
You have to deny something in
the complaint or the court will simply deal with a motion for judgment based on
uncontested pleadings. damages. Besides, the burden of proof is on
this third party to prove they own the debt. Same goes with the amount,
unless the amount is exactly what you believe you owe.
Check the Bill of
Sale Attached Purchase account files show a date only but
what about client’s name or account? What proves it’s the client’s account?
Sometimes it does have the client’s name account date of sale, but with a
redacted amount. The latter “chain of Title” is sufficient. Rutledge
v. Gemini Capital Group(Georgia Court of Appeals, 2014)
Look at the Exhibits attached to
complaint. Is it the same company as the collector? Does it show a
chain of title? Does it show client name or other identifying info? The chain
of title should show client’s account part of this transaction and that this
chain leads to the company suing you. Look at the Assignments-What do the
assignments actually say. Holes in assignments? GE Capital ≠GE Management. Need
to show chain of transfer of account. If various exhibits and affidavits are not
consistent, can argue inadmissible/untrustworthy see below.
Now more in line with the
Federal rules of Evidence.
Business records are usually
admissible unless untrustworthy, or not made at or near the time of the acts,
was it made by a person with personal knowledge, was it a regular practice of
the business? Difference is now the new law does not require someone to
testify to authenticity and allows self-authentication via an affidavit.
Probably they’ll have a custodian of records recite these things.
Argue it’s not their own business records regarding the accounts but that of
the debt seller they bought it from! Maybe Company A passed spreadsheet to
Company B and so Company B didn’t compile at all, didn’t have personal knowledge of how
the sheet was made, and wasn’t at the time of the event…They’re just reciting
the
hearsay exception! Make them prove what they're saying.
But new company can testify I HAVE
PERSONAL KNOWLEDGE THAT THIS IS THE ACCOUNT I BOUGHT FROM COMPANY A and we keep
it in our business records. (Says Creditor Atty. in CLE)
CHALLENGING THE AFFIDAVITS ATTACHED A business record affidavit has to have
attached to it the actual business records. ARE THESE ATTACHED as required? So argue
portions of affidavit referring to these business records must be stricken! It’s
inadmissible evidence. Affidavit is no good when it does not reference the
business records attached. Get these thrown out as inadmissible.
Party intending to offer a business record
must send sufficient notice in writing OCGA 24-9-902 Typically opposing counsel may call you and ask to make a deal, and you can say
"show
me more paperwork if we're to pay anything." If they can't they'll probably dismiss
case.
ASK THEM FOR FULL PURCHASE AND SALE
AGREEMENT (they don’t want to divulge this and you may need to file a motion to compel)
Federal Loans Are Tougher to Challenge Than Private
Loans Federal student loans
have no statute of limitations. And, unlike private loans, your wages can be
garnished without taking you
to court. Garnishment can be done by sending you an administrative wage garnishment letter within
30 days. At that point, you can request a hearing . This will
temporarily stay the garnishment, but the
hearings are a sham! Private lenders, however, must file in court
like everybody else. They can’t just
garnish, they have to sue you. Also, the six year Georgia statute of limitations
applies to private loans just like it does to credit cards. So if you stopped
paying 7 years ago, they can't sue you now. And if they can't sue, they can't
garnish either.
Default (270
days delinquent) For Federal Loans: 270 days= default, which means
they can
wage garnish wages, take Social Security benefits and intercept tax returns. It’s tax payer money
that was loaned so they can get it back! But they can’t garnish before then.
Is My Loan Public Or Private? If there's a cosigner, it's a private loan. (Federal loans don’t require a
cosigner.) And if they're suing you, it’s almost certainly a private loan. (why
sue on a federal loan when you can garnish administratively?) But you can
always call your lender or pull up your credit report to see if it's a federal
loan. Still not sure? Google the name of the lender on your credit report
or see the link below.
Just Who Owns My Loans And What
Types Do I Have-Federal or Private?800-433-3243 If you don't know who your lender is or aren’t sure what kind of loans you have,
visit the
National Student Loan Database System for Students and select “Financial
Aid Review” for a list of all federal loans made to you. (Enter in your
Social Security # and your PIN issued by the Dept of Education-you may need to
get a new PIN) Click each individual loan
to see who the servicer is for that loan (this is the company that collects
payments from you). It’s very important to know your servicer. This might be a
different company from the original lender. If you can't find this info on line,
call their helpline and ask for the name and # for your Lender or
Guarantor.
Then contact your lender directly for more guidance.
Private Student Loans Challenge ownership and amount
just like credit cards. Often a Wall Street Investment trust now owns it.
Can they produce an unbroken custody of title to show they truly own your loan?
Demand such. Remember, there's a six year statute of limitation on
Private loans. Even if it's still on your credit report for longer, if the SOL
has run, they can't sue or garnish your wages.
Debt collectors
violate the FDCPA if they claim you can't discharge your student loan debt. (mischaracterizing
your debt is a no no). They may be 90 percent correct but sometimes this
debt can be discharged. So what they're saying is FALSE and therefore
could be a FDCPA violation. The standard for
mischaracterizing debt is a low one (how their words would be perceived by the least sophisticated consumer.)
Rehabilitation and
Consolidation of Student Loans Rehabilitation gets
you out of default. (in default they already tack on 20% collection fee to your balance!)
After nine or ten months of regular payments, your loan will be refinanced by another lender and
now you’re out of default and such will show on your credit report. Aside from
good credit, why rehabilitate
you ask? Answer: 270 days= default which means they can wage
garnish, take SS benefits, and intercept your tax returns. It’s tax payer
money that was loaned so they can get it back! They can’t garnish before then.
And for private loans, they still have to sue you to do any of these things.
Undue Hardship Test is your burden to pay now or
in the foreseeable future. Works when you become disabled. Otherwise, it's very hard
to prove.
Negotiating With Debt Collectors Collection
agencies can’t file a lawsuit like a lawfirm, or stop your account. Be
protective about your information, never verify your last 4 digits of your
social security #. (They are fishing for ways to collect your money in the
event they win in a law suit against you). Don’t give out your debt card
info. just because they verbally told you they'll only charge you $20 a month. Even if
honest, if the debt sold again, this verbal agreement may be lost or not honored.
GET THEIR PROMISE IN WRITING BEFORE YOU GIVE THEM ANYTHING OF THIS SORT.
If you have already been sued, try to get a consent ORDER rather than a
Consent Judgment. Judges are more likely to sign off on it if the payment can be
made within a year. This creates a public record only that lawsuit was filed
and then dismissed. So it won’t show up in a credit report . But if
you agree to a consent Judgment,
even when it's dismissed, the credit report will show a judgment!
Debt Buyers Chances are your debt collector is a debt buyer,i.e. those who buy off
bad debt that has been unpaid for 180 or more days. (This is debt the
original creditor charged off their account and resells).
So after 180 days, the credit card issuer sells huge bundles of these accounts
to a debt buyer.
When dealing with a debt buyer you have a lot more flexibility to negotiate as a
debt buyer has invested less money than the original creditor. In other
words, Chase, who lost the full amount when you didn't pay, is less likely to
negotiate than the debt buyer who bought your debt at just 5 to 10 cents on the
dollar.
Example: The more a debt buyer paid for your debt, the less room they have to
negotiate. But even If you had a good credit score and a good wealthy zip code,
they may have spent only 10 cents on the dollar. So if they paid $100 for
your $1000 debt, they won't lose out if you negotiate $300. If you are
someone classified as having a low income, and live in a "poor" zip code, your
debt may have been sold for 1 cent on the dollar!
Secondary Debt Buyers
not happening much anymore. So the debt is not transferred to another debt buyer who then
tries to collect. Usually if the debt buyer can’t collect, they too write it off
(recent developments in last 2-3 years). It used to be that each time your debt
was sold
down the chain, the debt collector got smaller. And as they get smaller they’re
likely rougher and less professional. Also, record keeping gets sloppy as it
goes from collector to collector. (this means it's easier to challenge them on chain
of title, amounts, etc.)
A List of Well
Known Debt Buyers Midland funding Asset Acceptance Calvary Portfolio Arrow Financial Services
Garnishment Limitations Up to 30 hours of minimum wage is
exempt from Garnishments. So even if the collector has a judgment, they
can't garnish, What if the funds are already in my account? Answer, can
probably seize your money but for Social Security. But Social security
funds are not garnishable and can't be taken once in your account. 11th cir
Strictland v
Alexander-Affects Garnishments previously OK under GA law.
You always have a right to a
reasonable and affordable payment plan if you can't pay in 6 years.
Filing Fees (Cost To Sue) Georgia Magistrate court has no discovery period, but state and superior
courts have a six month discovery period (time to exchange documents, make
requests for admission, etc. ), so suing or being sued in the latter sued takes longer.
(Creditor filing fees is $50 in magistrate, $250 in other courts).
GA magistrate courts can hear cases for $15K or less, but
you can also file in state or superior court if your case is complicated and you
need discovery.
Mortgage Debts Mortgage Deficiency: If the debt is based on such, was their a
"confirmation of sale" after the foreclosure? If not, the collector may
lose right to collect under FDCPA.
Auto Repo Debts So your car was repossessed and sold for a fraction of what you owed.
And now a debt collector is dunning you for the difference. They can't
just sell it for any old price and then come after you for the rest. Were you
given notice of auction? Was it a commercial reasonable sale? Make the
debt collector furnish proof of these things if you are in doubt. The burden is
on them. (Auto repos almost always = deficiencies, which means it’s turned over
to a debt collector.)
Medical Debt Issues: Is it the hospital or a 3rd party who is collecting on the
debt? If it's the hospital that's collecting, you don't have rights under the
FDCPA. But even then, you can scrutinize the debt line by line and
challenge double billings, unnecessary routines or ridiculous expenses, i.e. $50
for a Band-Aid?
GA Residents Can Receive 2 Free Annual Credit Reports
from Each of the Three Reporting Bureaus As GA resident you are entitled to 2 free credit reports a year from each of
the three reporting agencies (GA Fair Business Practices Act). Federal law
allows only 1 so state even more helpful.
What It Means If A Collector
Is Exempt From The FDCPA Not all debt collectors are created equal under the Fair Debt
Collection Practices Act. In fact, some collectors are entirely exempt. This
means that only certain debt collectors have to be extra careful before they
call you, write you or sue you.
If a collector is exempt, they can say or do
whatever they want, unless of course, it violates other state, federal or local
laws. But the FDCPA does cover all third party debt collectors. And if they
don't follow the law to the letter, they can be fined up to $1000,
plus damages, plus court costs and
attorney's fees. Often, a violation of the FDCPA also means they can
be held under
state law, where triple damages may apply! For more see
Violations
of the Fair Debt Collections Practices Act.
Who Is Exempt Under The FDCPA? Since the FDCPA is designed to protect debtors against third party debt
collectors, it does not usually apply to your original creditor or its
employees. The statute defines a creditor as the person or entity that extended
you the credit in the first place (in other words, your original lender). So for
example, if you owe a debt to Bank of America, their accounting department is
free to call you without fear of the FDCPA. The same goes with their in-house
lawyers (so long as it's clear they're bank employees and not some outside
law firm).
Due to a recent Supreme Court case, the FDCPA may also exempt some debt
buyers. Debt buyers are companies that bought the debt from other companies and are now
trying to collect on it. See
Henson v.
Santander Consumer USA, Inc., 137 S. Ct. 1718 (2017).
The
FCDPA Applies When Collectors Falsely Claim They're An Employee Or Affiliate Under the FDCPA, your creditor and its employees are usually exempt.However, not all debt collectors are telling the truth when they say
they're an employee or affiliate. Often it's just tricky wording that falls
apart under real scrutiny.
For a case where a debt collector is exposed for falsely claiming to be an
affiliate, see Andrews v. Simm Associates, Inc., (Dist. Court, WD Washington, 2017).
In Simm Associates, the district court saw
through this ruse because the collector failed to list the creditor as a parent
corporation on their
corporate disclosure forms.
The court also looked at whether the collector
acted like a real employee.
With real employees, the creditor would have exclusive control over how they
go about collecting. For example, as an employer you can instruct your own
accounting department on the exact rules and procedures they must follow when
calling a debtor, what amount they are willing to settle for, or even what time
of day they are allowed to make phone calls to collect on each debt.
But here the court found that the creditor did not have exclusive control
over the collector. Instead, the collector "was simply performing a project for
the creditor as a debt collector/independent contractor." So the FDCPA
applied because it was neither a real affiliate nor a real employee of the
creditor. The court also noted that the creditor used an entirely different name
from the Creditor. (The court looked at the collector's corporate disclosure
forms and saw no connection with the Creditor).
For Other Indications The Collector Is Not A True
Employee or Affiliate They use a different name, incorporate as a separate entity, have a different
website, have an entirely different phone # and logo and have different stationary-all of which
conveniently fails to list an affiliation with the creditor. Likewise a Google
search of both the creditor and the collection agency in the same search box
shows no connection. Another clue is if in other court cases, they collect for
competing companies. i.e. collector sues on behalf of Bank of America, but two
weeks earlier, sued on behalf of Capital One.
This encourages bad behavior and a lack of accountability. So the FDCPA
applies even to employees or affiliates, when it's not clear they are connected
to the creditor, i.e.
when they are using a different name to collect debts.
For example: A creditor is a debt collector for purposes of this act if
He uses a name other than his own to collect his debts, including a
fictitious name.
His salaried attorney employees who collect debts use stationery that
indicates that attorneys are employed by someone other than the creditor or
are independent or separate from the creditor (e.g.,
ABC Corp. sends
collection letters on stationery of “John Jones, Attorney-at-Law”).
The creditor’s collection division or related corporate collector is not
clearly designated as being affiliated with the creditor.
The FDCPA
Applies When The Collector's Principal Business Is Debt Collection OR They
Regularly Collect Debts For Another Although the Supreme Court in
Henson concluded that debt buyers are not debt collectors under the FDCPA’s
second definition of a debt collector that regularly collects debts owed or due
another, debt buyers can still fall under the FDCPA definition of debt collector
if their “principal purpose . . . is the collection of any debts.” See Schlegel v. Wells
Fargo Bank, N.A., 720 F.3d 1204, 1208 (9th Cir. 2013). An entity meeting
either one of the two definitions qualifies as a debt collector. See Pollice
v. Nat’l Tax Funding, L.P., 225 F.3d 379, 405 (3d Cir.2000).
A court from the Third Circuit aptly puts it this way
"The FDCPA provides two possible paths for a plaintiff to prove that a
particular defendant is a debt collector." Even if a claim fails under
Henson,
"The defendant's 'principal purpose' is the collection of debts and, thus, meets
the definition of a 'debt collector' under section 1692a(6) the FDCPA."
Barbato v. Greystone Alliance, LLC, Dist. Court, MD Pennsylvania (2017). See
Cases In Other Jurisdictions That Cite The Henson Case.
Courts within the
Fifth Circuit look to a variety of factors to determine whether a
law firm engages in debt collection activity. For example,
they consider "the
number of lawsuits filed and collection letters mailed, the percentage
of time debt collection activities consume, the share of total
lawsuits filed that were dedicated to debt collection, the number of
creditor clients and the length of the firm's relationship with them,
the frequency and nature of the non-collection work in which the firm
engages, and the number of firm attorneys and other employees
dedicated to debt collection activities." Kirkpatrick,
2013 WL 5723077, at *5 (collecting cases).
So the collector could be the original creditor, a debt buyer or an employee or
affiliate.But they are liable under the FDCPA when their
principal purpose is the collection of debts or because it `regularly'
engages in the collection of debts." see
Oppong v. First Union Mortg. Corp., 215 Fed.Appx. 114, at *118 (3d
Cir. Jan. 26, 2007).
Proving
They Regularly Collect Or Their Main Business Is Debt Collection Note that in most of these cases, key is whether the plaintiff can show
that the collector's principal business is debt collection. If they can, the
FDCPA applies. When doing your research, check to see if court cases involving
the collector mostly involve debt collection.
Also look on their
website to see
if they say they are debt collectors or mostly talk about debt collection. You
can also see if they belong to creditor trade groups or belong to other
associations with debt collectors. To prove
lawyers are regularly engaged in debt collection See pp.9-10.
ATTORNEY LIABILITY IN LIEN ENFORCEMENT: THE UNTAPPED POTENTIAL OF THE
FDCPA (2014).
They inform potential clients that it "is an
experienced and specialized Subrogation & Commercial
Collection Agency," and that
"NCS knows that the sooner we make contact
with the tortfeasor or debtor . . . the sooner your money is recovered.
. . . This is our single focus, and
NCS has done it extremely well for twenty years."
Other Cases
Chenault v. Credit Corp Solutions, Inc., Dist. Court, ED
Pennsylvania 2017 (registered collection agency bound by FDCPA
when defendant's website read the company "is
a debt collector" that "purchases and collects consumer debt.)
Fressola v. Safeguard Properties, LLC, Dist. Court, ND
Illinois 2017. Court examined website to find that defendant
was under the FDCPA as a debt collector. FDCPA applies in part
because website indicated company
communicates with delinquent borrowers on behalf of mortgage
companies.
Cohen v. Ditech Financial LLC, Dist. Court, SD New York
2017 Website help show company was a debt collector because
it showed multiple, direct, in-person contact with delinquent
borrowers at their homes, and to facilitate communication
between borrowers and collecting entities regarding debt owed.
Cooling
& Winter Is Also an FDCPA Debt Collector. Here's what they say
about themsleves on their website:
Please be advised that Cooling & Winter LLC is a debt collector. This
is an attempt to collect a debt. Any information obtained will be used
for this purpose. So if one of their
attorney's claims otherwise, cite the case above, and report them to
the GA
state bar for violations of
ethics rule 8.4 (attorney deceit & misrepresentation).
However, I would argue that if the debt
collector is doing both of these things, then its
principal business is collecting debts!This argument may fail
however, when a debt buyer only occaisionally collects on debts. Say, for
example, it's doing debt collection on the side and its principal busiess is
selling cars.
Suing GA Debt Collectors For Even More $ Under State Law
If you're suing without an attorney, fines under the FDCPA may not be
enough to scare the debt collector into settling. The reason? You as
the debtor can collect a mere $1000 total unless you can prove your
court costs and that the collector caused you real pain and real
suffering. To a debt collector, $1000 is no big deal. So there's no
incentive to settle before trial. But it becomes a big deal when they
also have to pay for attorneys fees, which in your case they won't.
The good news is that in GA you
can up your damages tremendously! Just be sure to tack on
violations of state law when you also allege any FDCPA violations.
Under the GA
Fair Business Practice Act, there is no $1000 cap for all
violations. And the FBPA can allow for
treble damages too! See the recent case of
Carlisle v. National Commercial Services (2017)(N.D GA).
I suspect that attorneys don't talk much
about the GA FBPA and debt collection, because they're only collecting
from the fees they can get under the federal Fair Debt Collection
Practices Act. But you as a debtor should care very much!
Note that if you are filing the complaint (as
opposed to answering a complaint) you must give them
30 days notice that you intend to
allege FBPA violations.
Based on the case above, there are at
least five things to mention in your answer or complaint:
1. Carefully allege ALL FDCPA violations, even
though the max you can get is only $1000. 2. Stress The Violations
That Were Intentional-Using the Word "Intentional" or "knowingly."
3. Under the FBPA, incorporate all allegations of
the FDCPA you listed above. 4. Claim Emotional distress for FBPA
Claims (if such occurred). 5. Use Each FDCPA Violation to ask for
Treble Damages under the GA FBPA
The great news is that a
violation of the FDCPA is also a violation of the GA FBPA. See
1st Nationwide Collection Agency, Inc. v. Werner. But the FBPA is
subtly different from the FDCPA. The FDCPA is strict liability in most
cases. This means that you can get your $1000 without going into
detail about the harm done. If they did it, they're liable. The court
then decides if they owe you the full $1000.
But to get
treble damages under the GA Fair Business Practice Act, it's good
to allege intentional conduct. Plus, you need to show some type of
actual harm. This means you need to be more specific about the # of
violations, the intentional nature of the violations, and the
emotional harm to you. (i.e. loss of sleep, anxiety, etc.) Either do
it in your answer (if sued in state or magistrate court), or allege
this in federal court, when you sue later. But if you want them to
settle before trial, you might as well do it in your answer!
2. Court took judicial notice of defendant's
website to show they're a debt collector subject to the FDCPA (website
showed they regularly collects debts for others)
3. Court awarded debtor $1000 total for all FDCPA
violations
4.
Court awarded debtor $21,000 for all GA FBPA violations
5. Court Shows How To Plead Treble Damages under GA FBPA (Intentional
conduct, emotional distress-see the facts in the case for examples)
Which Debt Collectors Must Follow The FDCPA? (Consumer-SOS) Not all debt collectors are created equal.
Here's recent case law to show who must play by the rules and who
doesn't have to. Plus how to expose them when they're lying to you.
Basic Debt Collection and Consumer Protection In Georgia How creditors can and cannot collect debts. See situation # 9 and #10 for Auto Repossession. This document describes the law relating to debt collection and basic
consumer protection laws.
Fair
Debt Collection Practices Act (Regulates Debt Collectors)
Describes what debt collectors may and may not do if you
owe money. It applies only to third party debt collectors (i.e.,
collection agencies), or those who use a name other than their own in
collecting consumer debts. Very few commercial banks, savings banks,
savings and loan associations, or credit unions are covered by this Act,
since they usually collect only their own debts. Complaints concerning
debt collection practices, such as harassment or abuse, should generally
be filed with the Federal Trade Commission.
Using The Fair Debt Collection Practices Act Debt Collection Letter Use this letter to ask collection agencies to provide you with information
concerning their basis for claiming that you owe a debt ("verification of
the debt") and also ask them to stop contacting you. This only applies to
collection agencies, not to creditors who directly sold you goods or gave
you credit or loaned you money.
Fair
Credit Reporting Act Establishes procedures for correcting mistakes on an
individual's credit record. A credit record may be retained seven years
for judgments, liens, suits and other adverse information except for
bankruptcies, which may be retained ten years. If a consumer has been
denied credit, a free credit report may be requested within 30 days of
denial.
Fair Credit Billing
Act Establishes procedures for the prompt correction of errors
on open-end credit accounts. It also protects a consumer's credit rating
while the consumer is settling a dispute.
State Caps On Interest Rates/Usury (All 50 States & DC)
Careful! These caps may not apply to national and federally
chartered banks, pawnshops, payday loans, rent to own contracts, and
certain other lenders. Note: Credit card rates are limited by the usury laws found in the
lender's home state and not in that of the borrower's.
State
& Federal Laws Governing Credit Matters (All 50 States) The
FDCPA provides for your attorney's fees but the debtor can only
collect a max of $1000 in statutory damages. But you can get a whole
lot more if you tack on state law claims as well or add a claim under
the
TCPA. For example: See a
GA Case where the debtor got only 1K under the FDCPA but got 21K
by adding a state law claim under the GA Fair Business Practice Act!
Soldiers' and Sailors' Relief Act:
If you're a reserve component service member called to active duty, you're
protected by a law that can save you some legal problems and possibly some
money as well. Under the provisions of the Soldiers' and Sailors' Civil
Relief Act of 1940, you may qualify for any or all of the following: •
Reduced interest rate on mortgage payments. • Reduced interest rate on
credit card debt. • Protection from eviction if your rent is $1,200 or
less. • Delay of all civil court actions, such as bankruptcy, foreclosure
or divorce proceedings.
Georgia
Garnishment Forms For State Magistrate Court The most commonly filed garnishments are those against the judgment debtor’s
bank account or wages. The employer or the bank will be the garnishee and when
they are served with a summons of garnishment they are required to pay funds
into court when they file their answer within the time specified by law.
How Much Can Be Garnished in Georgia (NOLO) There's a difference between seizing a pool of money found in a bank
account, verses garnishing a stream of income, such as the money you get from
weekly or monthly paychecks. There is no limit on the former but there are
limits on the latter. The garnishment limit on most debts is up to 25% of
your disposable income. For child support: up to 50-60% (or 65% if over 12
weeks in arrears). For Student Loans: 15% of your disposable income. For Taxes:
it depends on how many dependents you have and your deduction rate.
www.debtworkout.com/altcc.html
A Website site dedicated to helping debtors and others with credit
problems to obtain either a secured or unsecured credit card for the
purpose of re-establishing good credit.
Fair Credit Billing
Act
Establishes procedures for the prompt correction of errors
on open-end credit accounts. It also protects a consumer's credit rating
while the consumer is settling a dispute.
Fair
Credit Reporting Act
Establishes procedures for correcting mistakes on an
individual's credit record. A credit record may be retained seven years
for judgments, liens, suits and other adverse information except for
bankruptcies, which may be retained ten years. If a consumer has been
denied credit, a free credit report may be requested within 30 days of
denial.
Divorcees and Survivors of Deceased Spouses: Are You Wrongly Being Held
Responsible for A Credit Card Debt? Being an authorized user on a credit card does not automatically mean
you're responsible for the debt. In fact, unless a court says
otherwise, such as in a divorce decree, you're not responsible for a
credit card debt unless you signed or co-signed for it. Only then
are you considered a "Joint User" as opposed to an "Authorized user".
Two Situations To Look Out For 1. After a spouse has died, some credit card companies have been
known to change the client’s authorized user status (A) on credit report
to joint user status (J). Whether this is by accident or intentional, the
result is that you're now listed as legally responsible for a debt when
you shouldn't have been.
2. Credit card companies have also been known to leave a client as an
authorized user, even when they've received a letter informing them of the
spouse's death. The deceased person's debt is then sold to a collection
agency which claims that you, as the surviving spouse, were a "joint" user
and not merely an "authorized" user.
In other words, based on that "J" notation, they now
wrongly claim you're "jointly" responsible for the debt. So whether
you are an (A) or a (J) matters very much. While morally, you should
not be accruing debt you don't intend to pay for, absent fraud on your
part, legally you're not responsible for it when you were just an (A).
In case # 2 (when the credit card debt is “written off and sold to a
collection agency” (status 5 or 9 on report), you
can see what the user status was (A or J) at the time debt was sold.
For once a credit card is written off and sold to collection agency, the
status of the account at the time of write off is fixed and cannot be
legally changed by a collection agency. This means
you have a snapshot of what the status of your debt was before it was
wrongly changed by the Debt Collector.
So if a person has, say a Chase account with an “A” next to it and a
status 9/sold to collections, and the collection agency falsely claims the
debtor is a joint user/responsible for the debt, then that person can use
the information on his credit report at the time of discharge to show
proof he was merely status “A” (an authorized user) and not status “J” (a
joint user). Once you've shown your true status, be sure to send a letter
with this proof to all 3 credit agencies.
Spotting Other Inconsistencies To Show Debt Collector Can't Collect
Also, often the written off debt shows a $0 balance but has a 5 or 9 next
to it. Yet once under collection, a new agency now shows a balance.
Both cannot be true! If one contacts the collection agency and confirms
it was from lets say the Chase card (that shows authorized user “A”) at
the time of discharge, you can make the case that the debt was not
legally yours, was written off by the original creditor, and should be
removed from all 3 credit reports.
To further show it was not your debt, demand a copy
of the signature proof (from the original creditor) showing you signed
jointly for a debt. (they won't have it since you never signed as jointly
responsible). You can also ask the collection agency to provide
proof of your signature. Under the FDCPA, if you challenge the debt
in writing, they must either show proof the debt is legally yours or
remove it. If they don't, they may be subject to court fines and
sanctions. See also your rights under the Fair Debt
Collections Practice Act.
